Civil Procedure Outline

Niles | Fall 2021 | Hofstra Law

L. Gaydos

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 I. INTRODUCTION
A. Essentially, Civil Procedure is how civil disputes move through beginning to end, and all the rules that determine what happens in between. Civil Procedure is composed of both “theoretical” and “practical” elements. The practical elements of Civil Procedure
incorporate the rules that govern where a complaint can be tried, the process of how that case moves forward, and what happens when the case reaches certain issues or criteria are met and can include how to determine a winner. The theoretical elements of Civil
Procedure involve how judgments are made with respect to factors such as future impacts to the various court and government systems in the United States (efficiency), the equal and equitable deliverance of judgment in a just and due process (fairness), and the
relation between the federal governments interests and the various states’ authorities (federalism); these theoretical elements help update old and determine new rules and help judges make judgments.
B. The central questions in Civil Procedure are:
1. What kind of process is required to resolve civil disputes?
2. Where and what is the right court?
3. What is the right law to be applied?
4. Once you find the right court and the right law, how do you decide who wins?
C. The three main principles to help answer these questions are fairness, efficiency, and Federalism (Federal v State Authority—dual system).
1. Factors to consider when determining “fairness”:
a) Notice
b) A chance to be heard
c) The different types of procedures based on what is at stake
d) Reluctance to let stuff get taken away before someone has a chance to argue that it should not be taken away (particularly if it can’t really be given back to them).
e) Getting the determination right
f) The problem with imposing an unchosen burden on someone
g) The balance between fairness itself and the cost and difficulty associated with fairness.
h) The appointment of a lawyer
i) A neutral decision-maker.
2. Civil as opposed to criminal:
a) Public v. Private
b) Punishment= paying some sort of compensation, relief/damages
c) Need preponderance of evidence (greater than 50% chance the evidence is true), lesser than proof beyond a reasonable doubt used in criminal law, because punishment is less serious ( imprisonment > damages )

DUE PROCESS
II. NOTICE AND REQUIRED HEARING
A. 5th Amendment to the US Constitution--- FEDERAL CT
1. Federal Due Process of Law:
2. “No person shall*** be deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use, without just
compensation.”
B. 14th Amendment to US Constitution---- STATE CT
1. State Due Process of Law:
2. “No state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the US; nor shall any state deprive any person of life,
liberty, or property without due process of law; nor deny any person within its
jurisdiction the equal protection of the laws.”
C. THESE CONSTITUTIONAL AMENDMENTS APPLY TO:
1. Deprivations of life, liberty, or property ONLY;
2. To deprivations by the state or federal government, not private parties
D. Elements of Due Process
1. Timing of Deprivation
2. Notice and Service
3. Chance to be heard before a decision is made
4. Different types of procedures
a) Different kind of procedures for different kinds of people
b) Equity
c) Ensuring procedures are likely to get the determination right
5. Can be unfair to make people do things when they were not warned in advance
6. “Fairness” to individual must be balanced w/interests of others and the
community as a whole
7. Sometimes a neutral decision-maker will be necessary/preferred
E. Potential Violations of Due Process
1. Timing of Deprivation
2. Notice and Service
3. Nature of Hearing Provided

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 F. DUE PROCESS CASES: TIMING ISSUE (didn’t give me time to respond)
1. Test for Issue of Timing
a) Life, Liberty, Property being taken? If yes:
b) Was notice given and was there an opportunity to be heard?
2. MODEL CASE: Sniadach v Family Finance Corp (US 1969, Babcock 2)
a) Given the serious nature of salary garnishment, it violates D/P to do so
without giving notice and pre-deprivation hearing
b) Goldberg v. Kelly (US 1970, Babcock 8)
(1) Given the importance of welfare benefits, it violates due process to
take them away without prior notice and pre-deprivation hearing
(a) *disability different
c) Fuentes v. Shevin (IA 1972, Babcock 9)
(1) Repossession procedure (of appliances) violated due process
because it allowed for the taking of property without notice and an
opportunity to be heard
d) Connecticut v. Doehr (US 1991, Babcock 10)
(1) Personal quarrel led to the placing of lien on Doehr’s house,
preventing sale and collateral on a loan. Court held this violated
due process.
(2) Lien: a right to keep possession of property belonging to another
person until a debt owed by that person is discharged.
3. Overall:
a) Need to meet due process standard if life, liberty, or property
taken… give notice and opportunity to be heard before
taking important things… in both state and federal
III. NOTICE (STATE COURT)
A. 14th AMENDMENT DUE PROCESS CLAUSE
B. Test for Issue of Notice (State)
1. Life, Liberty, Property being taken? If yes:
2. Matthews Test
3. Reasonably Calculated Test
C. MATHEWS TEST
1. “Private interest that will be affected”—must be determined how important the
interest is the more involved and extensive the procedures must be to meet D/P
2. “Risk of erroneous deprivation/impact of procedure in reducing that
risk”—what is the challenging party asking for in terms of procedures? Will
including those additional procedures greatly increase the chance that the correct
decision will be made, or will they have little impact on that?
3. “Government’s interest”—usually focuses on the cost the government will incur
if it provides the procedure that the challenger is asking for (can also involve the
gov’s stake in making sure the correct result is reached)
D. NOTICE (SERVICE IN STATE COURT)
1. The First and MOST IMPORTANT component of DP is notice to the parties that
might suffer deprivation of life, liberty, property as a result of legal proceedings
E. Notice requirements (State)

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 1. Follow state court rules: Even if those rules are correctly followed, a party can
challenge the notice as invalid if it violates the 14th amendment D/P rights of the
party subject to deprivation of L, L, or P
a) In order for notice to satisfy requirements of 14th amendment DP clause,
the notice must be:
(1) Reasonably calculated, under all circumstances, to appraise the
interest parties of the pendency of the action and afford them an
opportunity to present their objection
F. REASONABLY CALCULATED NOTICE (you didn’t tell me in time) for state
court cases--- use reasonably calculated test for service
1. Greene v. Lindsey (US 1982, Babcock 28)
a) Posting of eviction notice on door of apartment did NOT meet “reasonably
calculated” test when sheriffs knew postings were consistently removed in
the area prior to notification
2. Mullane v. Lindsey (US 1982, Babcock 29)
a) Notification by publication was sufficient for parties without contact
information, but notice by mail for those whose addresses were available
was notice “reasonably calculated” to inform the parties of the pendency
of the hearing, and therefore sufficient for DP
3. Dunsenberry v. US (US 2002, Babcock 34)
a) SCT said notice by certified mail was sufficient (reasonably calculated) for
prison inmate, even though other (and arguably better) means were
available to serve him
4. Jones v. Flowers (US 2006, Babcock 34)
a) When government was made aware that its attempt deserve by certified
mail has been unsuccessful, it violated “reasonably calculated” test when
it did not try some other means of notification
5. Overall:
a) must use “reasonably calculated” standard to see if notice
meets DP of 14th Amendment… did they ACTUALLY try to
notify defendant?
G. OVERALL: DP OF 14th amendment for STATE COURTS= Mathews Test
(what procedure is required?) & Reasonably Calculated Test (were
they actually notified in a good way?)
IV. NOTICE (FEDERAL COURT)
A. 5th Amendment requirements:
B. Test for Issue of Notice (Federal)
1. Life, Liberty, Property being taken? If yes:
2. Meet req. Of 5th amendment?
3. Follow the rules in Rule 4?
C. Federal Rules of Civil Procedure (FCRP) - (RULE) 4 highlights for
service of notice:
1. Service must include summons AND the complaint

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 2. P must present the summons to the clerk of court at the time the complaint is
filed in the court; clerk will apply seal and then give it back to the plaintiff to have
it served
3. Must be served by someone OTHER than the P, who is at least 18 (can be
served by federal marshal)
4. P may seek “waive of service” by D; will send complaint and summons in the mail
along with return address postcard where D can state that he is waiving service
by other means required by Rule 4
5. If waiver is not granted, P can have service done by
a) Personal service
b) Leave copy at dwelling/abode
c) Serving the legal “agent” of the D
D. Service of Process in Federal Court
1. Mid-Continent Wood v. Harris (7th Cir. 1991, Babcock 41)
a) Specific requirements for service of complaint and summons under FCRP 4 must
be followed; district court erred in coming up with (their own) 3-part standard for
allowing exception to specific requirements of Rule 4
E. “Improper” Service and Respect for the Court System in Federal Service
1. Wyman v. Newhouse (2nd Cir. 1937, Babcock 49)
a) Court concludes that D was fraudulently lured into state so that service could be
performed; resulting judgement was invalid as a result of the fraud and could
therefore not be enforced in FL or anywhere else in US
2. Tickle v. Barton (WV 1956, Babcock 50)
a) Defendant was lured to the state by plaintiff’s lawyer w/ info that his son was to be
honored at a banquet in the state; court held that service was invalid because of the
fraud
3. Sawyer v. LaFlamme (VT 1962, Babcock 50)
a) P invited D to the state to engage in settlement discussions; P filed action against D
who was served and taken into custody while in the state; court held that the service
was valid because the intent to enter into settlement discussions and to file a lawsuit
and serve defendant did not conflict, no fraud
4. Overall:
a) a judgment procured fraudulently lacks restriction and is null and void. A
judgment recovered and a sister state, through fraud of the party procuring
the appearance of another, is not binding on the ladder when an attempt is
made to enforce such judgment in another state (respect the court)
F. OVERALL: rule 4 service for federal court, no fraud or exceptions
V. REQUIRED HEARING
A. the NATURE of the hearing that is ultimately provided and whether it includes all
procedures and attributes required by constitution
B. Elements of a Hearing
1. Timing of hearing (in relation to the notice)
2. Access to the record upon which decision will be based
3. Neutrality or potential bias of the person(s) making the decision
4. Whether translators are provided for those who need them
5. Opportunities to appeal a final decision (among many others)
C. Was there something in the hearing you wanted but didn’t get?
1. Use MATHEWS 3-part balancing test

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 a) “Private interest that will be affected”—must be determined how important
the interest is the more involved and extensive the procedures must be to
meet D/P
b) “Risk of erroneous deprivation/impact of procedure in reducing that
risk”—what is the challenging party asking for in terms of procedures? Will
including those additional procedures greatly increase the chance that the
correct decision will be made, or will they have little impact on that?
c) “Government’s interest”—usually focuses on the cost the government will
incur if it provides the procedure that the challenger is asking for (can also
involve the gov’s stake in making sure the correct result is reached)
D. Does DP clause require that the party subject to deprivation be represented by an
attorney at the hearing?
1. Basic Rule for Attorney Representation under Due Process Clause:
a) The Constitution requires that an attorney be provided for any proceeding
that could result in incarceration; NOT required otherwise… use mathews
2. Rule in Civil Cases:
a) Case by case basis
(1) Complicated legal matter = required counsel
(2) Simple complaint = not required
b) Test for when an attorney must be appointed is same as for other DP
issues: Mathews Test
c) Often based on 2nd Mathews Factor:
(1) Attorney will be mandated if it is determined that the presence of
the attorney substantially increases the likelihood that the
hearing will reach the correct result (assuming that interest of
plaintiff and burden of gov to provide attorney essentially balance
out)
3. When does DP require appointment of attorney?
a) Lassiter v. Dept. of Social Services (US 1981, Babcock 64)
(1) P lost parental rights to child w/o representation. Tried to represent
herself but messed up w/ court procedures. Was a ‘traditionally’ bad
mom (race, jail, etc.) The Supreme Court concludes that an
attorney would not have made enough of a difference in the
resolution of the case to make it a due process violation not to have
one
(2) Rule: Determination of whether an attorney must be provided in a
custody hearing must be made on a case by case basis
b) M.L.B. v. S.L.J. (US 1996, Babcock 74)
(1) Parental termination procedures in Mississippi provided appointed
counsel for indigent parents, but required parties to pay $2,000 to
get a record of the proceeding needed to appeal a judgement.
(2) Rule: due process required that the record had to be provided
without charge to indigent parties.
c) NOTE: Immigration and Naturalization Act
(1) This act does NOT require that parties subject to immigration
proceedings be appointed counsel.

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 (2) It provides parties subject to deportation with “time to retain counsel
on their own” and provides a list of possible pro bono attorneys.
d) Wade v. Mayo (US 1948, Babcock 74)
(1) Held that due process requires counsel for individuals who, by
reason of age, ignorance or mental capacity are incapable of
representing themselves in even a relatively simple proceeding.
(2) But, as in Lassiter and parental custody proceedings, courts must
make case by case determination of whether appointed counsel
is required in immigration cases (Michelson v. INS 10th cri. 1990)-
absence showing prejudice, lack of appointed counsel did not
constitute due process violation.
e) Turner v. Rogers (US 2011, Babcock 93)
(1) Indigent father in South Carolina who was incarcerated for not
paying court ordered child support argued that due process
required that he have an attorney appointed to represent him at a
hearing that could result in his incarceration
(2) SCT held:
(a) civil contempt proceedings are not the same as criminal
proceedings, and parties subject to incarceration in the
former are not required to have an attorney
4. Can someone (effectively) be prevented from having a lawyer represent
them even if they CAN afford one?
a) Walters v. National Association of Radiation Survivors (US 1985, Babcock
85)
(1) Fee limitation for lawyers imposed by federal statute all but
prevented veterans seeking disability benefits from having legal
representation at the hearing determining their disability status.
District court held at the limitation violated veterans due process
rights BUT the supreme court reversed.
(2) Rule: concluded the constitution does not require that VA
benefit applicants have access to an attorney because the
process is informal and therefore attorneys are not necessary to
provide sufficient certainty that the correct result is reached; and
would be counter-productive by changing the informal nature of the
hearing.
(a) Legislature made more laws to change this: Veterans
Judicial Review Act of 1988
(b) Established the Court of Veterans’ Appeals (CVA) set to
review the decisions made by the Board of Veterans'
Appeals (BVA). Decisions of the CVA were subject to review
by the U.S. Court of Appeals for the federal circuit.
E. Right to Access
1. Tennessee v. Lane (US 2004, Babcock 95)
a) D unable to access the courthouse in his wheelchair, as all courtrooms are
on the second floor with no elevator or ramp.

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 b) Court held that the violation of the ADA and TN refusal to remedy, did
violate due process b/c needed access to public services, specifically
full right of access to the courts.
F. Overall: if the process is adversarial where the presence of a lawyer
would ensure the protection of fairness and substantial justice,
facilitate the process in an efficient manner, and fulfill the three
Mathews factors (esp. 2nd), especially where the opposing party is
represented by legal counsel, the party necessitating an attorney will
be provided with one

PERSONAL JURISDICTION
VI. TRADITIONALLY:
1. PJ was a function of State power and sovereignty—Each state’s authority over
everyone that lived in the state and all of the property within its borders
2. States has PJ over any person who resided in the state and could be found
(seized) there after a suit was filed against them (seizure traditionally done by
Sheriff)
3. And PJD over all property within borders
B. Wyman v. Newhouse (2nd Cir. 1937, Babcock 49)
1. (Guy having affair, fraud) P wanted to sue D in her state, not his; so she had to
get him to actually show up in her state to get him served
C. Traditional Types of PJ:
1. In Personamm—traditionally achieved by arrest of defendant and detention until
suit; now achieved by personal service (summons and complaint)
a) Defendant was in the state and was served there
2. In Rem—the seizure or attachment of property (by lien) that was in the state in
order to secure compensation for any dispute concerning that property
a) P brings action against D regarding property that is in the state
3. Quasi in Rem—JD over person by way of their property, but was used to provide
potential compensation for a dispute NOT involving the property

VII. MODERN PJD:

A. Extra-territorial PJ— can State assert PJ over an out of state D if D is not found and
served in the state and D doesn’t own property in the state
1. Traditionally NO
2. Modernly, yes
B. NOTE: How is personal jurisdiction challenged?

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 a) Collateral Attack: Just ignore it. Don’t do anything with the lawsuit, have
it enter summary judgement, and then claim the judgement invalid w/no
claim to personal jurisdiction.
b) Direct Attack: Special Appearance - Appear in court to contest the claim
to personal jurisdiction. “Special” appearance because while in the
state/court, the state cannot then assert in personam personal jurisdiction.
C. Pennoyer v. Neff (US 1878, Babcock 101)
1. P sued out of state D who had not been served in state; property had not been
attached
2. Traditional approach: failure of P to seek attachment of Oregon property before
judgement was entered against out of state D in Oregon court invalidated
judgement against D (did not meet any of the traditional requirements)
3. This case BEGINNING OF MODERN APPROACH
a) SCT also noted that assertion of PJ in the case over the D also violated a
new legal requirement—the DP clause of the 14th Amendment
(“proceedings in a court of justice to determine the personal rights and
obligations of parties over whom that court has no JD do not constitute
due process of law”)—focuses on defendant & potential for unfairness,
can’t have things taken away without due process
D. International Shoe (US 1945, Babcock 104)
1. After International Shoe Test:
a) Fair pursuant to DP clause to assert ETPJ over out of state defendants if
they have EITHER of the following kind of contacts with the state
(1) Systemic or continuous contacts= General JD, PJ in state over any
lawsuit against D
(a) Where the state is basically a home for the individual or
company, OR
(2) Minimum Contacts= Specific JD, contacts which allow D to enjoy
the “benefits and protection of the laws of that state” and “give rise
to obligations in the state” that make it FAIR for the D to be subject
to JD there
(a) Gives state authority to hear only claims that rise out of D’s
Minimum Contacts with the state
(b) “to the extent that a corporation enjoys the benefits and
protection of the laws of the state… The exercise of that
privilege may give rise to obligations which arise out of or
are connected with the activities within the state, a
procedure which requires the corporation to respond to us
you brought to enforce them can, in most instances, hardly
be said to be undo”—Int Shoe
(c) INTERNATIONAL SHOE GAVE RISE TO MC

VIII. EXTRA-TERRITORIAL PERSONAL JURISDICTION

A. Test

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 1. LOOK AT LONG-ARM STATUTE FIRST, if no STOP HERE (if not mentioned
in question, assume broad/allowed)
a) Broad: PJ to fullest extent allowable under 14th Amendment
b) Limited: state sets specific limitations on the types of out of state
defendants it has authority to bring before their courts in addition to any
US Constitution limitations
2. THEN look at contacts D has with the state, evaluate fairness
a) Between Int Shoe (1945) and 1978, Sup Ct granted PJ for the state in
EVERY ETPJ cases that came before it EXCEPT two (cases where D
argued they didn’t have intentional connections to the forum state):
B. Hanson v. Denkla (US 1958, Babcock 114)
1. D entered into trust agreement with P when she lived in PA, she later moved to
FL and sued D there; SCT held that FL did not have PJ over D in lawsuit
because P’s “unilateral activity” that resulted in D’s contact with the state did NOT
constitute “minimum contacts” by D
2. “a defendant is subject to PJ only if the D purposely avails itself of the privilege
of conducting activities in the state”
C. Kulko v. Superior CT (US 1978, Babcock 115)
1. Presence of D’s daughter in Cali did not constitute MC by D because it did not
amount to purposeful availment of protections of the laws of the protection of the
laws of CA by the D
2. “A state may not exercise personal jurisdiction over a parent in a custody
proceeding based solely on the parents out of sending his or her child to live in
the form state”-- doesn’t meet MC, no PJ
D. OVERALL:
1. Look at long arm statute first
2. ETPJ?
a) Continuous and systematic contacts for general JD OR
b) Minimum contacts with the state for specific JD w suits arising out of those
contacts
3. So far, we know for MC the D must purposely avail itself of benefits of the state

IX. MINIMUM CONTACTS IN “STREAM OF COMMERCE”

A. ETPJ Test
1. Always look at long arm THEN see if there’s min contacts
a) MC in “Stream of Commerce”
(1) In these cases, the out of state D has contacted the state in the
form of a product he/she/it manufactured that ended up in the state
and caused injury/harm there
(2) QUESTION IN EACH CASE: What (in addition to the product
entering “stream of commerce” and getting to state) is needed to
justify ETPJ
2. Hanson v Deckla (from above)—need to purposely avail self of benefits of the
state
a) Del trust co. had no offices nor businesses, unilateral activity of plaintiff
having relationship with defendant doesn’t satisfy MC

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 3. WWVW v. Woodson (US 1980, Babcock 120)
a) US Sup CT held that “mere foreseeability” that a car would get to
Oklahoma from New York is not enough to constitute MC
b) But entering product into “stream of commerce” plus “reasonable
expectation” that it’ll get to the state is enough
c) ADD MC+ factors:Minim Contact Plus Factors
(1) Interest of Forum State
(2) Interest of Plaintiff
(3) *Judicial System Efficiency
(4) *Shared State Interest in Social Policy
(a) *usually say “just leave it where it is”
d) Foreseeability v. Anticipation

(i) Would a reasonable person prepare for it? If D

reasonably anticipates a connection with the forum
state
e) MC+ FACTORS: interest of forum state and P in having the litigation in the
forum state (court calls, reasonableness test)
B. What constitutes “reasonable expectation''?
1. Keeton v Hustler Magazine (US 1984, Babcock 129)
a) P filed defamation claim against out of state magazine in a state she didn’t
live. Lower court held that P’s contact with state was insufficient for PJ
b) SCT reversed; focus on DEFENDANT for ETPJ---- regular circulation of
magazines in forum state is sufficient to support assertion in libel action
2. Calder v Jones (US 1984, Babcock 130)
a) CA-P filed defamation action against out of state FL-mag, in her home
state
b) SCT found ETPJ existed over magazine editor and writer because they
reasonably should’ve anticipated that litigation might be initiated in home
state of a libel plaintiff which was ALSO the state with the largest
circulation of their magazine
3. Walden v. Fiore (US 2014, Babcock 130)
a) Defendant (DEA officer) knew that P lived in NV when he filed false
affidavit to support seizure of their money
b) SCT held that this knowledge, absent any other measurable connections
to NV was not sufficient to create MC & PJ
4. ASAHI V SUPERIOR COURT (US 1987, Babcock 132)
a) Lawsuit over motorcycle accident becomes contract dispute between 2
foreign corporations in state court in CA; one party challenges PJ in Cali
over case
b) Decisions

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 (1) O’Connor (Part II B - 8 votes)
(a) No PJ for two foreign parties for issues not related to state
based application of MC+ factors = burden high, state not
interested
(2) O’Connor (Part II A - 4 votes)
(a) No minimum contacts b/c D did not purposefully enter
stream of commerce with intent to enter US
(b) SC + INTENT = MC
(3) Brennan (4 votes)
(a) Minimum contacts exist when D enters into stream of
commerce, knowing that the products will enter forum state
(b) SC + KNOWLEDGE = MC
(4) Stevens (3 votes)
5. McIntyre Machinery v NICASTRO (US 2011, Babcock 139)
a) D (foreign company) intentionally sold products in US thru independent
distributor, but did NOT focus marketing efforts on any specific state; P
injured by D’s machine filed suit against them in NJ
b) Decisions
(1) Kennedy - Plurality Opinion (4 votes)
(a) O’Connor concurrence in Asahi & plurality in Nicastro
(i) SC + INTENT
(b) Try to overturn WWV - “not enough that D might have
predicted that its goods will reach the forum state”
(2) Breyer - Concurrence (2 votes)
(a) Brennan in Asahi
(i) SC + KNOWLEDGE is enough
(b) Breyer concurrence in Nicastro
(i) Take it case-by-case… no set rule; uses mom & pop
example (not fair for them to have to travel far, maybe
fair for huge corporation
(3) Ginsburg - Dissent (3 votes)
(a) suggests new standard for ETPJ “ETPJ is properly assessed
when actions by the D himself and not a 3rd party give rise to
the affiliation with the forum”—MM did intent to sell in US
including NJ (MC)
C. MC for SC
1. Hanson & Deckla
a) Need to personally avail self of benefits of state
2. WWVW
a) Stream of commerce + reasonable expectation
b) MC+ factors
D. Enter into stream of commerce with “reasonable expectation” that it’ll get to state---
what constitutes reasonable expectation?
1. O’Connor concurrence in Asahi & plurality in Nicastro
a) Stream of commerce + INTENT
2. Brennan in Asahi

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 a) Stream of commerce + KNOWLEDGE is enough
3. Breyer concurrence in Nicastro
a) Take it case-by-case… no set rule; uses mom & pop example (not fair for
them to have to travel far, maybe fair for huge corporation
All say stream of commerce + purposeful availment OR reasonable expectation
Can’t seem to define what PA or RE means (knowledge or intent)

Side point: FEDERAL COURT CAN HAVE PJ WHEN A STATE COURT IN THAT STATE CAN
UNLESS; there is a federal law, statute, or treaty under FRCP 4(k).

FRCP 4(k): Territorial Limits of Effective Service.

(1) In General. Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant:
(A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located;
***
(2) Federal Claim Outside State-Court Jurisdiction. For a claim that arises under federal law, serving a summons or filing a waiver of
service establishes personal jurisdiction over a defendant if:
(A) the defendant is not subject to jurisdiction in any state's courts of general jurisdiction; and
(B) exercising jurisdiction is consistent with the United States Constitution and laws. (D could still make D/P argument)

X. MINIMUM CONTACTS IN CONTRACTS

A. Contract Provisions
1. “Choice of Forum”
a) Provisions in a contract where parties decide the jurisdiction where to
decide disputes about the contract
2. “Choice of Law”
a) Provision in contract that decides what law will govern the document, not
necessarily where the lawsuit must be disputed
B. Burger King v. Rudzewicz (US 1985, Babcock 170)
1. BK sues one of its franchises (Michigan) in FL court; franchise argues no PJ over
them in Florida
2. SCT holds that D’s deliberate affiliation with (including entering into contract
governed by FL law) & reasonable anticipation of litigation in FL (based in part on
sophistication of one D) constituted purposeful availment of protection of FL law
and therefore there were MC there
3. Factors considered for purposeful availment:
a) Sophistication of D’s
b) Chose long term (20 year) affiliation with FL corp.
c) All activities supervised by Miami office
d) Went to FL for training
e) Length & nature of contract
f) Time spent reviewing/negotiating contract
g) FL “choice of law” provision
h) BK is a FL corp.
i) All payments sent to FL
4. Brennan: AVOIDS blanket “one rule for all cases” – like Breyer says in Nicastro
a) Case specific analysis of facts

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 b) “we reject any talismanic JD formula; facts of each case must be weighted
in determining whether PJ would comport with ‘fair play and substantial
justice”
C. Overall: case by case (Brennan in BK and Breyer in Nicastro)

XI. MINIMUM CONTACTS IN “TRADITIONAL”

PRESENCE IN THE STATE
A. Traditional PJ
1. In personam
2. In rem
3. Quasi in rem
a) Was always unconstitutional b/c specific jurisdiction
4. No ETPJ
After Int. Shoe states enacted Long arm statutes allowing ETPJ under the right circumstances

So…. What did Int. Shoe do to the traditional ways PJ was asserted and are all traditional ways still
valid after 14th amendment?

New question: IS IT NECESSARY—MUST THE D’S STILL HAVE MC WITH THE FORUM STATE
EVEN WHEN THERE WOULD BE PJ OVER THEM THROUGH JUST A TRADITIONAL
STANDARD?
--- ARE MC NECESSARY AND NOT JUST SUFFICIENT?
B. Shaffer v. Heitner (US 1977, Babcock 193)
1. Lawsuit brought against Greyhound, incorporated in DE, and officers and
directors (in Arizona) in DE. Court seized stocks that officers and directors owned
in the company, put a stop order on the stock. DE law that said any company
incorporated in DE, the stock of that company “resides” in DE.
2. D moved to quash in violation that the seizure violated due process and that they
did not have MC with the state.
3. SC said yes, all traditional forms of PJ need to be evaluated w/ MC
a) Quasi in rem, was always unconstitutional
4. Rule: when the only contact the defendant has with the form state is location of
property in the form state, the forum lacks personal jurisdiction over the
defendant unless the minimum contacts test of International Shoe satisfied
C. Burnham v. Superior Court (US 1990, Babcock 194)
1. Rule: when D knows she is in the state when served = PJ in personam
2. Plurality - Scalia (4 votes)
a) “In personam” JD does not require MC
b) Scalia (3 votes)
(1) Tradition to uphold “in personam” jurisdiction so we will continue to
do so
(2) It is the court's job to uphold precedent unless changed by the
legislature, not our job to change it
3. Concurrence - Brennan (4 votes)
a) MC is required for traditional forms of JD

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 (1) (D knowingly and intentionally in the state, and served there, will
most always have MC’s)
XII. MINIMUM CONTACTS AND THE INTERNET
A. Think of Shipley’s Donut Texas A&M Website vs. Amazon.com
B. Zippo Mfg. Co. v. Zippo Dot Com (PA 1997, Babcock 226)
1. PA lighter manufacturer sued CA internet startup, for ™ infringement over
domain name. CA startup had PA contracts w/ other non-related businesses.
2. Court held that PA had PJ over ZippoDotCom b/c “even a single contract can be
sufficient” to prove purposeful availment in conjunction w/ processing PA resident
subscriptions.
a) Court applied traditional MC analysis to the facts to internet activities of
the D
b) Comes up with “sliding scale” analysis based on “nature and quality of
commercial activity”
C. Sliding scale:

Active/Actual commerce-------------------------------------------------------------Passive (purely info)

MC’s--------------------------------------------- maybe -----------------------------------------------def NO
1. Most Federal Courts (2-6th; 8-10th circuits) applied the Zippo sliding scale in
internet MC cases
2. Others use traditional MC analysis
a) CompuServe, Inc. v. Patterson (1996)
(1) Texas resident (P) entered into a contract to distribute shareware to
Ohio corp.
(2) Court found Ohio did have PJ over P b/c the contract proved
purposeful availment.
b) Martiz, Inc. v. Cybergold Inc. (1996)
(1) D put up a website promoting an upcoming internet service. D
argued the website was passive and did not give PA for PJ.
(2) Court held that D’s contact amounted to ‘active solicitations’ and
that D ‘indiscriminately responded to every user’ who accessed the
site.
c) InsetSystems, Inc. v. Instruction Set (1996)
(1) Connecticut corp. sued Mass. Corp. for trademark infringement
over a domain name. D's only connection to Conn. was advertising
on the website and a toll free number.
(2) Court held that advertising on a website is likewise to national ads,
as it is continuously accessible to any internet user.
d) Bensusan Restaurant Corp. v. King (1996)
(1) NY jazz club sued Missouri jazz club for ™ infringement.
(2) Court reasoned that b/c the Missouri site was only informative, not
interactive, there was no purposeful availment to assert PJ.
e) Pres-Kap, Inc. v. System One, Direct Access, Inc.
(1) Contract dispute in FL by a DE corp. over a NY customer.

Gaydos 15
 (2) Cannot use this analysis for PJ over the consumer, rather than the
seller.
3. For a while, some courts held that Internet connectivity and engagement could
create general jurisdiction:
a) Gator.com Corp v. LL Bean (2003)
(1) They had general jurisdiction over LL Bean based on its highly
interactive website, and it’s targeted electronic advertising in the
state
b) Gorman v. Ameritrade Holding Corp (2002)
(1) General jurisdiction over defendant brokerage service that allows
customers to use the website to open accounts, transmit funds, buy
and sell securities, and enter service contracts with defendant
D. BUT AFTER GOODYEAR AND ITS RESTRICTIVE TEST OF GENERAL JD OVER
D---- discussed in next section--- what are increasing rejecting general jurisdiction
based solely on Internet connectivity
1. CollegeSource Inc. v. AcademyOne (2011)
a) “interactive websites are extremely common. If the maintenance of an
interactive website were sufficient to support general JD in every forum…
the eventual demise of all restrictions on PJ of state courts would be the
inevitable result”
XIII. PJ OVER FOREIGN CORPS AND SUBSIDIARIES
A. Only 2 cases that even considered the question of whether out of state D’s were
systematic and continuous after Int. Shoe (1945):
1. Perkins v. Benquet Consol. Mining (US 1952, Babcock 206)
a) SCT found general JD in Ohio over Phillipino mining co with office in Ohio
2. Helicopteros v. Hall (US 1984, Babcock 207)
a) NO general JD in Texas over foreign corporation with some activities in
the State but insufficient to meet requirement of systematic and
continuous contact
B. What is enough for S&C contact?
1. Goodyear Dunlop Tires v. Brown
a) registered to do business in forum state
b) have employees and facilities in forum state
c) have bank accounts in forum state
d) design, manufacture, or advertise products in forum state
e) solicit business in forum state
f) sell or ship directly to the forum state
2. Perkins v. Banquet Consol. Mining (main office in forum state)
C. Goodyear Dunlop Tires v. Brown (US 2011, Babcock 203)
1. P’s in NC sued D (foreign subsidiaries of Goodyear) in NC court for accident in
France
2. SCT holds that NC court applied standard for MC and not S&C to support holding
of PJ over foreign subsidiaries
a) Level of contacts within NC by subsidiaries amounted to MC not S&C
b) No general jurisdiction

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 3. AKA: since they’re suing for something not related to the contact in the state,
need general jurisdiction over subsidiary
4. Rule: cannot assert PJ over an out-of-state (foreign) company unless its contact
with the forum state are SO S&C as to render itself at home
D. Daimler AG v. Bauman (US 2014, Babcock 208)
1. Argentine P’s sued German car manufacturer in CA for actions that occurred in
Argentina; relied on S&C of car manufacturer’s subsidiary in CA for general JD
against parent company in that state
2. D contacts w/ forum state were insufficient to support general jurisdiction
3. Rule: cannot assert PJ over an out-of-state (foreign) company unless its contact
with the forum state are SO S&C as to render itself at home
E. Bristol-Myers v. Superior Court of CA (US 2017, Babcock 155)
1. Both CA and non-CA residents sued D for causing health issues due to their pills.
2. Rule: cannot assert PJ over D b/c the out of state P claims, did not arise out of
actions in the forum state.
F. PTA-FLA Inc. v. ZTE Corp. (2017, Babcock 165)
1. ZTE Chinese Corp. entered into a contract with one of PTA’s affiliates in Missouri.
PTA changed plans and moved the plans to South Carolina. The contract
stipulated that PTA was able to change the location at any time. ZTE failed to
deliver anything and PTA sued for breach of contract in South Carolina.
2. Court held that SC had no PJ over ZTE b/c the claim was unrelated to their
actions in SC and only had PJ for specific jurisidiction.
G. Case: Ford Motor Co. v. Bandemer (2021, Babcock 166/online new)
1. Montana
a) Car accident in Montana, V sued in Montana. Car was not made,
designed, manufactured, etc. in Montana but Ford had extensive contacts
with the state. THE INJURY OCCURED IN MONTANA.
b) Court held that D had so many contacts (extensive promotion) with the
forum state that it did not matter where the car was made.
2. Minnesota
a) P seriously injured from failed airbag. The car and P were registered in
Minnesota. THE INJURY OCCURRED IN MINNESOTA.
b) Court held that D had so many contacts with the forum state that it did not
matter where the car was made.
3. “The harm caused must arise out of the specific contact D had w/ the forum
state.”
a) Specific contact = injury occurred in the state

XIV. EXAM QUESTION RULE STATEMENT: PERSONAL

JURISDICTION (MC)
1. State’s Long Arm Statute
a. In order to assert PJ over an out of state defendant, the forum state’s Long Arm
Statute must apply
2. Don’t Violate Due Process

Gaydos 17
 a. It will not violate the defendant’s due process rights if the D has continuous and
systematic contacts or minimum contacts with the forum state. Int Shoe
b. Needs to have EITHER:
i. Systematic and Continuous Contact
1. S&C = D will have systematic and continuous contacts with a forum
state when its contacts are so extensive as to make it essentially at
home in the forum state. Daimler
ii. Minimum Contacts
1. MC = D will have minimum contacts if the defendant purposely
avails himself to the benefits of the protection and laws of the forum
state, creating an obligation for them to respond to lawsuits filed
there. Int Shoe
3. What do we need?
a. General jurisdiction
i. S&C contact gives rise to general jurisdiction over the D. Helicopteros
b. Specific jurisdiction
i. MC will give rise to specific jurisdiction, which allows for JD over claims
arising from those contacts. Int Shoe
4. Special Rules
a. Stream of Commerce
i. When a defendant enters a product into the stream of commerce and it
enters the forum state, SC has held that the D will have minimum contacts
with that state if it entered a product into the stream of commerce with
either
ii. Establish MC through
1. S of C + INTENT
a. the intent to get the product into the state (O’Connor in
Asahi; Plurality in Nicastro) OR
2. S of C + Knowledge
a. with knowledge that the product would get to the state
(Brennan in Asahi) OR
3. S of C + Reasonable Anticipation
a. has reasonable anticipation that their product will enter the
forum state (WWVW).
4. Case-by-Case Argument
a. Also, Justus Bryer in his concurrence in Nicastro calls
for a case-by-case fairness analysis for each defendant that
focuses on the resources and size of the defendant to
determine whether it is fair to make them travel a long
distance.
iii. Courts will also consider the (MC + factors) interest of the plaintiff and the
forum state in having the litigation in that state. WWVW.
b. Internet
i. Zippo sliding scale
c. Court Mandated Test (in Zippo)
i. When can a state exercise specific PJ over a non-resident D?

Gaydos 18
 ii. D must have MC w/ forum state
1.Purposefully established contacts w/ forum state Int Shoe
2.Reasonable expectation of suit WWVW
3.Protects D from actions based on “random, fortuitous, or attenuated”
contacts in state Keeton v. Hustler
4. Sustaintail connection Burger King
ii. Claim must arise out of those contact
iii. PJ must be reasonable
1. Consider the burden on D
2. Consider the interest of the forum state
3. Consider P interest all WWVW

III. SUBJECT MATTER JURISDICTION

Article III Section 2:
- “the judicial power shall extend to all cases, in law and equity, arising under this constitution, the
laws of the United States, and treaties made or which shall be made, under their authority;--to cases
which the US shall be a party;-- to controversies between two or more states;-- *** between citizens of
different states”
Two main cases;
- “Arising under” or Federal Question Jurisdiction = of or about the constitution/federal law
- “Diversity” Jurisdiction = parties from separate states

Federal Rules of Civil Procedure (FRCP)

- Can remove state case to federal if it meets the qualifications (1441)
- Qualifications
o Diversity (28 USC 1332) OR
o Federal Question (28 USC 1331)

Diversity Jurisdiction, the first key

28 USC 1332—the basic diversity rules
a. District could shall have original jurisdiction of all civil actions the matter in
controversy exceeds the sum or value of $75K *** and in BTW
i. Citizens of different States;
ii. Citizens of a state and citizens or subjects of a foreign state ***

Complete Diversity: All of the plaintiffs must be diverse from all defendants
b. Individual domicile= where she lives and intends to stay, only changes when party moves to
another state with intent to stay there permanently Mas v. Perry (5th Cir. 1974, Babcock 232)
c. Corporation’s domicile= BOTH where it is incorporated and where it has its “principal place of
business” (nerve center= where a corporation’s officers direct, control and coordinate the
corporation’s activities) Hertz v. Friend (US 2010, Babcock 240)
d. Corp. can have two domiciles, so there must be complete diversity from BOTH

Gaydos 19
Sufficient “amount in controversy”- over $75,000
e. Party seeking Diversity Jurisdiction has the burden of demonstrating amount
f. Must be sought in “good faith”
g. P can aggregate multiple claims against ONE defendant to add up to $$; CANNOT
aggregate multiple plaintiffs or d’s to meet
h. P’s claim only rejected if there’s a “legal certainty” the claim is for less than required amount
i. Claims for injunctive relief also receive valuation for diversity purposes (amt measured by the
value of object of litigation)

Diversity is decided at the time the suit is filed, does not lose JD if the parties become un-diverse during the
case

Diversity JD is not exclusive—case could still be brought in state court—but defendant can remove it to federal
court if they want (TO AVOID BIAS AGAINST OUT OF STATE DEFENDANTS)

SO, if they get sued in their home state, they can’t remove it to federal court

Federal Question Jurisdiction, the second key

Article III section 2:
- “judicial power of federal courts shall extend to all cases, in law and equity, arising under this
Constitution, the laws of the US”
28 USC 1331:
- District courts shall have original JD of all civil actions arising under the Constitution, laws, or treaties of
the US
- “original” JD does not mean exclusive

i. Direct Federal question cases:

- P says “I am entitled to relief because the D violated federal law” with private right of action

42 USC 1983 (Creates Cause of Action) - Federally created cause of action

- I’m entitled to a suit in federal court b/c you violated the constitution
- L&N Railroad v. Mottley (US 1908, Babcock 264)
o D stopped giving P’s free train passes they were promised
o No federal question JD because P’s were NOT seeking relief pursuant to federal law; claim was a breach
of contract
o Federal law was basis for D’s Defense, not P’s cause of action
o NEEDS TO BE BASED ON PLAINTIFF’S CAUSE OF ACTION, NOT D’S ANTICIPATED DEFENSE
- Mottley Rule
o P must be seeking relief due to federal law
o “P is entitled to relief because: D violated CONST or other FED law and I was injured.”

Ex of indirect: P and D enter into contract that requires D to follow federal regulations in performance of
contract; D fails to perform, P sues for breach of contract, court must decide if D violated federal regulations to
determine if P wins

“indirect” federal question claim has federal SMJ—

the Well-Pleaded Complaint test

Gaydos 20
 - WPC RULE: “even though state law created a P’s cause of action, its case might still ‘arise
under’ the laws of the US if a (1) well pleaded complaint established that its right to relief
under state law requires resolution of a (2) substantial question of federal law in dispute
between parties”
“Cause of Action”
- Theory of relief relied upon by P (ex: seeking relief based on negligence—P is saying she’s entitled because D owed her a
duty and breached that duty); P’s can assert multiple causes of action out of the same facts
“Private right of action”
- Right a P has to bring a lawsuit based on violation of a particular law (allows P to rely on the law to create a cause of action)
private right of action can be express (provided in statute) or implied (found in statute by a court)

What makes something a “substantial” question of federal law for the purpose of the well pleaded
complaint rule?
- Merrell Dow
o A federal issue that is raised as part of a state law cause of action is a “substantial” issue of
federal law if resolution of the case requires resolution of the federal issue, AND the federal law
in question provides a private right of action
o A law has a private right of action if a private P can file a claim seeking relief for violation of the
federal law
o Alternative would be only if the gov has the authority to bring a claim regarding violation of the
law
o Claims would flood the courts
Merrell Dow v Thompson (US 1986, Babcock 267)
- P’s= residents of Canada and Scotland
- D= drug manufacturer with Ohio domicile
- P’s filed claim in state court in Ohio alleging that D’s drug caused birth defects in their kids
- Complaint had 6 “counts”. Five asserted state common law causes of action
- 6th count alleged that the drug was misbranded in violation of FDCA regulations and the misbranding
amounted to negligence per se
- D wanted to remove the case to federal court
- SCT denied, holding that it removal motion had to be decided to WPC rule, NO EXPRESS OR
IMPLIED PRIVATE RIGHT OF ACTION PURSUANT TO THE FDCA BRANDING REGULATION
- Insufficiently “substantial” to meet WPC rule
- Takeaway: You can file in federal court when a statute HAS A PRIVATE RIGHT OF ACTION says that
people injured as result of violation of this law can bring claim to federal law—if you DO have private
right of action, you’re fine
o Ex: you breached a contract bc you violated federal law, and the statute has a private right of
action… but so on…..
Grable & Sons Metal Products v Darue Engineering (2005)
- Private right of action in Federal Law is SUFFICIENT for FQ JD in “indirect” claim, PRA is not required
if claims of the kind asserted will not overwhelm the federal courts with too many similar claims
- In addition to (1) private right of action, you can also go to federal court (2) if the claim doesn’t have a
private right of action but wouldn’t overwhelm the federal court (balancing)

Direct: they violated federal statute with a private right of action

hard “indirect” cases, where there’s a state cause of action but a federal question must be resolved---
it must require the resolution of a SUBSTANTIAL FEDERAL LAW; private right of action is sufficient
but not required, so long as case without private right of action is of that kind wont overwhelm federal
courts with too many similar claims

Gaydos 21
 - On exam, language for private right of action that allows Fed Q JD “any injuries sustained by injury
caused by violation can bring this to federal court”—can be brought directly or indirectly
DIVERSITY & FEDERAL QUESTION ESSAY RULES:
- SMJ JD
- Article III Section 2:
- “the judicial power shall extend to all cases, in law and equity, arising under this
constitution, the laws of the United States, and treaties made or which shall be made,
under their authority;--to cases which the US shall be a party;-- to controversies between
two or more states;-- *** between citizens of different states” US Const. Art. III Sec 2
- Diversity JD
- Pursuant to federal law, a P can bring a claim to federal law so long as there is complete
diversity between all plaintiffs and defendants and the amount P is seeking is more than
$75,000. 28 USC 1332.
- The domicile of a corporation for purposes of Diversity JD is both the state in which they are
incorporated and their principle place of business. The principle place of business will be the
corp.’s nerve center which is defines as where the principal decision making is done. Hertz.
- The domicile for an individual is where she lives and intends to stay, only changes when party
moves to another state with intent to stay there permanently. Mas.
- Federal Q
- Under 28 USC 1331, federal question JD, a claim can be filed in federal court if plaintiff is
seeking relief pursuant to a federally-created cause of action which includes a private right of
action (direct federal question) or is seeking relief pursuant to a state law cause of action that
requires resolution of a substantial federal question (indirect federal question). Merrell.
- Indirect federal question
- In order for a federal court to have SMJD over an indirect federal question, the federal
law in question must include a private right of action OR claims of that nature would not
overwhelm federal court. Grable.
(ON EXAM IT’LL PROB SAY IN THE STATUTE THAT SOMEONE INJURED AS RESULT OF VIOLATION
CAN BRING SUIT, THEREFORE CAN BE BROUGHT TO FEDERAL COURT BASED ON PRIVATE RIGHT
OF ACTION)

Removal JD
If P filed in state court, D could sometimes remove to Federal Court--- if the claim P filed in State court COULD
HAVE BEEN filed in Federal Court

Removal 28 USC 1441 (a)

- If P sues D in state court BUT COULD HAVE sued in federal court, then it will be removed to
fed court as a matter of right
28 USC 1441 (b) (2)
- In state D CANNOT remove a case to federal court if the case relies on diversity jurisdiction
- CAN remove if D is not in state
- CAN remove if case is on FQJ

28 USC 1446
- To remove, D’s shall file in the district court of the US containing a short and plain statement of the
grounds for removal

Gaydos 22
 o Within 30 days after receipt by D

28 USC 1447
- Motion to remand the case on the basis of any defect other than subject matter JD must be made within
30 days after the filing of the notice of removal
o If at ANY time before final judgement, it appears that the DC lacks subject matter JD, the case
shall be remanded
- An order remanding the case to State court from which it was removed is NOT reviewable on appeal
Overall:
- Claims filed by P in state court that are subject to Federal subject matter JD (could have been filed in federal court bc of diversity or federal Q) may be removed to Federal Court pursuant to motion by D(s)
o All D’s must join in request for removal
o In-state D can’t remove a case based on only Diversity JD
- D has one year from P’s filing of the action to seek removal based on Diversity
- If something happens in a case after P files that newly justifies FSMJ, a D has 30 days after the altering event to file a motion for removal
- If it is removed for the D’s to federal court, P can file motion with federal court to remand it back to State court based on contention that requirements for removal weren’t met
o Decisions granting remand are NOT reviewable
o But decisions denying remand ARE reviewable
- DCT can’t remand a case that otherwise has FSMJ because of a “crowded docket”; but CAN remand if the case originally has some federal & some state claims but the federal claims are taken care of/no longer part of the case

Removal Cases:

Caterpillar inc. v. Lewis (US 1996, Babcock 957)

- DCT improperly granted removal based on diversity (there was lack of complete diversity)
- But before trial and judgement, complete diversity was created
- Judgement in DCT in favor of D
- CTA reversed on appeal for original lack of FSMJ
- SCT reversed appellate—said since trial happened and judgement occurred after FSMJ issue was cured, DCT
decision should not be dismissed
- “all’s well that ends well”
- If federal jurisdiction is proper at the time of the judgment, then a district court's error in
prematurely removing a case from state court to federal court does not warrant vacating the
verdict.

Removal and the “Westfall Act”

- Exception to general rule that ANYTHING can be filed in State Court

- Provides for removal of claims against Federal officials for Torts committed in the course of their official
duties from State to Federal court
o Attorney General takes their place; conclusive
o Must be acting in scope of their employment
- Consequence= installing the US as D and P’s claim gets dismissed bc US has sovereign immunity
preventing all claims for damages against it

Westfall Act cases: if gov. Employee, acting within the scope of their employment, is sued then US is replaced as D

Osborn v. Haley (2007)

- Employee of US forest service sues USFS employee in state court for tort
- US invoked Westfall Act immunity on employee’s behalf, removed to fed court
- DCT said no, Attn General shouldn’t take place, remanded it back to State
- US and employee appealed
- CTA rejected remand
- Supreme court reviewed bc Attn General said yes, then DCT remanded (usually can’t appeal this) which one is conclusive??? Does Attn
General override the inability to appeal remands
- If it was removed bc he WAS acting in the scope of his employment, needs to stay in Fed court

CAIR v Ballenger (2006)

- P filed a defamation action against US Rep based on statements he made in an interview about his separation--- (against Islamic
people/society/CAIR)
- CTA held he was acting within the scope of his gov job as a congressman by doing an interview
- US should be installed as D; case dismissed bc the US has immunity from intentional torts like defamation

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 Forum non-conveniens - “international removal”
Courts may dismiss a claim where forum chosen by P is “substantially inconvenient” for the D and there is an
appropriate alternative forum for the action

Courts must DISMISS (not transfer) the action when the appropriate forum is another JD (another state or
country)

Cases:

Piper Aircraft v Reyno (US 1981, Babcock 980)

- Plane crash in Scotland killed pilot and 5 passengers
- Plane manufactured in US in PA by Piper Aircraft; Propellors in OH
- At time of accident, plane was registered in UK owned & maintained by AN&T and operated by MacDonald Aviation (both UK corps); evidence
indicated cause of accident was pilot error (not mechanical)
- Renyo (administrator of passenger’s estates) sued PA and OHIO in Cali
- D sought dismissal on Forum-Non Conveniens grounds
- P argued it would be unfair to dismiss bc the law would be less favorable to them in UK
- Cali DCT did dismiss; CTA reversed saying if law in alternative forum would be less favorable; sup ct reviewed
- SCT says no DCT in PA could dismiss if there’s another alternative forum; not wrong just bc laws would be less favorable
- 4 “private interest factors”: 1) relative access to sources of proof 2) availability of witnesses 3) access to premises related to suit 4)
any other issues related to easy and expeditious trial
- Public interest factors: 1) administrative difficulties caused by court congestion 2) local interest in resolving local disputes 3)
tribunal familiar with applicable law 4) avoiding choice of law issues 5) burden of jurors

NOTE: Abusive Discretion - Ice cream for dinner

NOTE: PJ is about jurisdiction over the person, SMJ is about jurisdiction over the claim.

Venue (in federal court)

Determination of the proper Court, within the Federal Court system, for a particular case to be decided
Purely Statutory

Statutes:
28 USC 1391 (Venue within the same State)
28 USC 1404; 28 USC 1406 (Interstate Venue Changes)

Relevant FRCP:
FRCP 12(b)3 (about time when motion seeking change in venue must be filed)
and (h)(1) (what happens when parties don’t raise issues (including improper venue) in the early stages of
case)

Which of the federal courts where a P can sue a D, is the right one?

1) Which state can I sue in? ---- PJD

2) Once I have PJ, can I sue in federal Court? --- SMJD
3) Which Federal Court? --- Statute (Venue)

28 USC 1391 & 1392 (Venue within the same State)

- Venue determines which of the various Fed Courts in a State is the proper place for a claim
- Appropriate venues include: 28 USC 1391(b)
o (1) Judicial district in which ANY D resides, if all D’s are residents of the same state
o (2) Judicial district in which a substantial part of the event giving risk to the claim occurred (or
where the property at issue in the case is)

Gaydos 24
 - If neither of these can be met^^^
o (3)Any judicial district in which any D is subject to the court’s personal JD
▪ Person “resides” in the judicial district where they are domiciled
▪ Corps reside in any judicial that has PJ over them and in the district where it has its
principal place of business
▪ For states with multiple judicial districts (Cali and NY, etc.) corp. will be deemed to reside
in any district in that State within which its contacts would be sufficient to subject it to
personal JD
- Any civil action involving PROPERTY located in different districts in the SAME STATE, may be brought
in any of those districts (28 USC 1392)

28 USC 1404 & 1406 (Interstate venue changes)

- For the convenience of parties and witnesses, DC may TRANSFER any civil action to any other district
or division where it might have been brought or to any which all parties have consented
- The DC presiding over a case filed in the wrong venue 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

Rule 12 motions: Defenses and Objections

(b) How to present defenses: every defense to a claim for relief in any pleading must be asserted in the
responsive pleasing if one is required. But a party may assert the following defenses by motion:
1) Lack of subject-matter JD
2) Lack of PJD
3) Improper venue
4) Insufficient process
5) Insufficient service of process
6) Failure to state a claim upon which relief can be granted
7) Failure to join party under rule 19
Waiving and preserving certain defenses:
- A party waives any defense listed in Rule 12(b)2-5 by failing to either: (i) make it by motion under this
rule; or (ii) include it in a responsive pleading

US DC Districts in NY venues

US DCT for the Northern District of New York: Albany, Broome, Cayuga, Chenango, Clinton, Columbia,
Cortland, Delaware, Essex, Franklin, Fulton, Greene, Hamilton, Herkimer, Jefferson, Lewis, Madison,
Montgomery, Oneida, Onondaga, Oswego, Otsego, Rensselaer, Saint Lawrence, Saratoga, Schenectady,
Schoharie, Tioga, Tompkins, Ulster, Warren, and Washington (counties).
Northern District courts are in Albany, Syracuse and Binghamton.
US DCT for the Southern District of New York: Bronx, Dutchess, New York, Orange, Putnam, Rockland,
Sullivan, and Westchester
Southern District courts are in Manhattan and White Plains
US DCT for the Eastern District of New York: Kings, Nassau, Queens, Richmond, and Suffolk
Eastern District courts are in: Brooklyn and Central Islip.
US DCT for the Western District of New York: Allegany, Cattaraugus, Chautauqua, Chemung, Erie,
Genesee, Livingston, Monroe, Niagara, Ontario, Orleans, Schuyler, Seneca, Steuben, Wayne, Wyoming, and
Yates.
Western District courts are in: Buffalo and Rochester.

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 IV. JOINDER OF CLAIMS AND PARTIES IN
FEDERAL COURT
I. Supplemental JD
Supplemental JD=
- A case with a key then “holds the door open” for a claim that doesn’t have a key because the case
arises from the name common nucleus of facts

Under common law, Supp JD was broken into 2 kinds:

1) Ancillary JD= involved the inclusion of state law claims in lawsuits in federal court
2) Pendant JD= involved inclusion of additional parties over whom the Federal court would not have otherwise had
JD
Now these both just make up Supp JD

Supp JD: 28 USC 1367

● (a) When a P files a claim over which the federal court has subject matter JD, the court can
also decide claims over which it DOES NOT have JD (state law claims) if brought by the P as
part of the same complaint, if all these claims ARISE OUT OF THE SAME FACTS
○ (even if destroys complete diversity)
● EXCEPT
● (b) If new parties are added to the case under RULES (14, 19, 20, or 24), original P
cannot bring a suit to add. Parties, if the suit relied on diversity
● may decline IF:
○ novel or complex issue of State law,
○ More/bigger state claims than federal claims
○ Claim that gave FJ is gone
○ In exceptional circumstances, there are other compelling reasons for declining
jurisdiction.

Ex of types of Supp JD claims allowable under 28 USC 1367 (a)

1. P D

Count 1: federal question claim

Count 2: state law claim
(both claims arise out of same facts)
supplemental jurisdiction over Count 2 (the state claim)

2. P D

P’s claim based on federal question jurisdiction

D brings counterclaim against P (state law claim)
(both claims arise out of the same facts)

Gaydos 26
 supplemental jurisdiction over the counter claim

3. P (State A) D (State B)
($100,000)

($50,000)

D files counterclaim alleging negligence and seeking $50,000 in damages

(both claims arise out of the same facts)
supplemental jurisdiction over the counter claim

4. P D1 (federal questions)
D2 (state law)
(both claims arise out of the same facts)

supplemental jurisdiction over the claim against D2 pursuant to 1367(a) [overturned the
decision in Finley v. US]
FRCP 20 allows for “joinder” of two defendants into same case

NOT allowed under 1367 (b):

P (state A) D1 (state B) based on diversity jurisdiction

D1 brings claim against D2 (state A) as 3p Plaintiff under FRCP 14

Then:
P (State A) D2 (State A)
1367(b) provides:
Supplemental jurisdiction over the D1’s claim against D2
NO Supplemental Jurisdiction over P’s claim against D2
^^ this can happen tho if it was federal Q

Case:
P1 (state A) and P2 (state A) D (state B)
P1 = $75K
P2 = $50K

keep complete diversity

both claims arise out of the same facts
orig. P has a claim > $75K

Exxon v. Allapattah (US 2005, Babcock 937)

- Pursuant to 28 USC 1367, if P files a claim based on diversity JD, and P meets both the complete
diversity and amount in controversy requirements
o Can an additional P be added if the additional P is diverse from the D, additional P’s claim
arises from the same facts as the first P, but the additional P’s claim DOES NOT meet amount in
controversy???
- Yes… but ONE OF THEM MUST MEET THE AMT IN CONTROVERSY (can’t add together 2 that don’t)

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 Permissive and Compulsory Joinder of claims and parties
The basic lawsuit:
P => D

Joinder:
Addings Ps and Ds
=> =>

General answer, can I add, take away, etc.: YES, if it arises out of the same facts.

FRCP 18
- Is there a limit to the number of claims that can be joined in the same case?
o NO
- A party asserting a claim, counterclaim, cross-claim, or third party claim may join (as independent or
alternative claims) as many claims as it has against the opposing party
- No arbitrary limit

FRCP rules that govern joinders:

Counterclaim: Claim filed by original D against original P

FRCP 13: Counterclaims & Cross-claims

2 kinds-
FRCP 13 (a): Compulsory (Required) counterclaims
- By definition there is supplemental JD
- D has to file these now, if not they can’t sue again in the future
FRCP 13 (b): Permissive counterclaims
- Must have independent subject matter JD (diversity or fed Q)
- Don’t have to file right now, can sue in the future

P => D
P <= D (1. Compulsory: arising out of same facts)
P <= D (2. Permissive: not arising out of same facts)

Cross-claims: Claim filed by one defendant against co-defendant

Must arise out of same facts as P’s original claim or a counterclaim

P => D1 + D2
P => D1 => D2

Permissive joinder: additional Ps and Ds added to case

FRCP 20: Permissive Joinder of Parties (Ps or Ds)

- Can join if it arises out of the same facts

P + P + P => D
- Parties may be joined in the case of P’s if

Gaydos 28
 o FRCP 20 (1)(a): they assert any right to relief jointly, severally, or in the alternative with respect
to or arising out of the same transaction or occurrence
▪ Arise out of the same facts
o FRCP 20 (1)(b): any question of law or fact common to all P’s will arise in the action
P => D+D+D
- Parties can be joinder as defendants if:
o FRCP 20 (2)(a) any right to relief is asserted against them jointly, severally, or in the alternative
with respect to or arising out of the same transaction or occurrence
▪ Arise out of the same facts
o FRCP 20 (2)(b) any question of law or fact common to all D’s will arise in the action
Mosley v. GM (8th Cir. 1974, Babcock 993)
- Multiple employees of GM filed action alleging racial discrimination against GM and their union
- DCT severed the claims; said their claims couldn’t be brought together bc they had little relationship
- CTA reversed:
- Their issue all came from the same policy (a) , the fact that they suffered differently is immaterial to find common
law or fact (b)
Required joinder: additional Ps and Ds added to case
FRCP 19: Required Joinder of Parties
Compulsory (required) joinder: sometimes parties MUST be added to the case or (if they can’t be) the case
must be dismissed
- When someone NEEDS to be joined; court ordered
- When P sues D, but someone not sued says what about us we NEED to be part of this case, if
not=issues… not including me messes up my rights

(A)Persons required to be joined if feasible (court has PJ and inclusion won’t mess up SMJD by destroying
complete diversity)
Required party:
A. In that person’s absence, court cannot complete relief among existing parties or
B. That person claims an interest relating to the subject of the action and is so situated that disposing of
the action in the person’s absence may:
a. Impair or impede the person’s ability to protect their interest or
b. Leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise
inconsistent obligations bc of the interest
If a person has not been joined as required, court must order it

(B)When joinder is not feasible:

- If a person who is required to be joined if feasible CANNOT be joined, (NO PJ and ruined SMJD by
destroying complete diversity) court must determine whether, in equity and good conscience, the action
should proceed among existing parties or be dismissed
- Factors to consider (:
o Extent to which a judgement rendered in person’s absence might prejudice that person or
existing parties
o Extent to which any prejudice could be lessened or avoided by: protective provisions to
judgement, shaping the relief, or other measures
o Whether judgement rendered without them would be adequate
o Whether P would have adequate remedy if the action were dismissed for non-joinder

4 possible outcomes to Rule 19 regarding an absent party:

1) Party is NOT REQUIRED under 19 (a) [ct does nothing]

Gaydos 29
 a. Temple v Synthes (US 1990, Babcock 998) (P hurt when screws in his back came loose; sued
manufacturer in Fed, doctor in State; manufacturer sought to dismiss under 19(b) bc absence of
other D that would have destroyed complete diversity if joined... CTA said NO, joint and severally
liable tortfeasors are NOT required parties, but permissive)
2) Party is REQUIRED and FEASIBLE (PJ and wouldn’t harm SMJD) [ct orders party added]
3) Party is REQUIRED but NOT FEASIBLE (ct doesn’t have PJ, or party would destroy SMJD)
a. Dismiss case
b. OR let it go on w/o them
c. Hetzelberg’s Diamond Shops v Valley West (8th Cir. 1977, Babcock 1000) (D entered into
potentially contradictory lease agreements w 2 vendors, P vendor (Diamond) sued and other
vendor couldn’t be added bc of lack of PJ; DCT and CTA said case should not be dismissed bc
absent D met req. of 19(a) but not (b); not indispensable simply bc their rights under a
completely separate contract will be affected as a result)

This rule is actually more about D’s seeking dismissal

- Party filing the 19(b) determination knows that the person wouldn’t be feasible but argues that they are
indispensable so the case will have to be dismissed
Rule 19 Required exam rule:
FRCP 19(a) provides that a party not included in a legal claim might be ordered to be if the court has personal jurisdiction over the non-included party
and including them would not destroy the court’s subject matter jurisdiction (“feasible”), and that party is determined to be “required.” A party will be
required if in their absence the court cannot provide complete relief among the parties currently in the case, or if the parties currently in the case, or the
party not included, could be prejudiced by the action.

Rule 19(b) proves that the court must determine whether the action should proceed without a non-party who is required but not feasible or if the case
should be dismissed. The factors that the court should consider in making this determination are: prejudice to the parties and the non-party that might
occur if the case goes forward, the possibility that this prejudice could be diminished by an order of the court, and whether judgement in the absence of
the party would be adequate.

Impleader: D bringing new D into case based on “derivative liability” theory

FRCP 14: Impleader (Third Party Plaintiff)

- Claim filed by D against a party the P did not sue alleging that party is liable to D for some or all of what
he might owe to the P --- “DERIVATIVE LIABILITY”
- When D may bring in a Third Party
o A defendant may, as a third-party Plaintiff, serve a summons and complaint on a nonparty who
is or may be liable to it for all or part of the claim against it
- (common examples: insurance claim; joint and several liability contribution)

“If I lose to the plaintiff, then you (D2) must pay me some of the money I owe her (P)”
“If I did something wrong, then so did you”

P => D1
D1 => New D2 (who is liable to D1)

Scott v. PPG (4th Cir. 1990, Babcock 1005)

- Classifications of employees created a “scapegoat” for discrimination under Title VII
- PPG said that the union needed to be brought into the case b/c if PPG owes money then the union
owes them money under their collective bargaining agreement, i.e. PPG alleging union benefited from
the contract that allowed discrimination
- Court said that the union did not benefit from the contract, the employees were supposed to
- Court said we cannot add the union b/c rule 14, but can bring them in if the collective agreement needs
to be altered

Gaydos 30
 - Court reminds us that rule 14 is about derivative liability, not joint and several

Interpleader: mechanism for managing dispute over “limited fund”

Interpleader: Permits minimal diversity, requires $500 in controversy

- Method for managing dispute over a “limited fund”
You have one limited fund or object, multiple claims, bring them together

28 USC 1335
(a) The DCT shall have original JD of any civil action of interpleader filed by any person, firm, or
corp. having in his/its custody or possession money or property of the value of $500+ or
being under any obligation written or unwritten to the amount of $500+ IF
(i) (1) Two or more adverse claimants, of diverse citizenship, are claiming or may claim to
be entitled to such money or property AND IF
(ii) (2) The plaintiff has deposited such money or property or paid the amount of the loan or
other value due under such obligation
Basically ^ put all my claims in one so I can pay it all

FRCP 22
- Persons with claims that may expose a P to double or multiple liability may be joined as D and required
to interplead

State Farm Fire & Casualty v. Tashire (US 1967, Babcock 1010)
- Insurance co. filed interpleader action after multi-party accident giving rise to multiple claims potentially exceeding
the $20k max payable under insurance policy; DCT granted the interpleader and extended it to limit lawsuits
- SCT held that the interpleader was proper for claims against the insurance co. but NOT the insured or the bus co
Intervention: uninvited joinder
FRCP 24

A. (a) Intervention of Right (REQUIRED): must permit anyone to intervene who:

a. (1) is given an unconditional right to intervene by a federal statute; or
b. (2) claims arising out of the same facts that would impede the party's ability to protect its interest, unless
existing parties adequately represent that interest
B. (b) Permissive Intervention (PERMISSIVE).
a. (1) may permit anyone to intervene who:
i. (A) is given a conditional right to intervene by a federal statute; or
ii. (B) has a claim or defense that arises out of the same set of facts

Kleissler v. U.S. Forest Service (3d Cir. 1998, Babcock 1016)

- Two projects to cut down trees by and Indiana org. sued by PA and Ohio residents. P requested an injunction
from the court to stop the cutting of trees until the org. did an environmental impact study to determine which trees
to cut down.
- Local school districts & towns wanted to join as add. Ds b/c they received money from the logging for their towns.
Arguing that the injunction needs to be struck down b/c EPA cases take a long time and money will be held up.
- Court holds that the gov. cannot represent all sides, so there is no shared interest so all of the interveners have to
be let in.

V. THE CIVIL COMPLAINT AND RESPONSES

Pleadings: papers filed by parties in our federal courts that form the basis of legal dispute

Gaydos 31
Types of Pleadings
1) Complaint
a. Need THREE Things
i. Jurisdiction: I’m allowed to be here because (SMJ)
ii. What is a complaint? I’m entitled to relief because… I think I know what they did and I
want to prove it
iii. Ask for injunctive or monetary relief
2) Answer
a. No you’re not entitled to relief because…
3) Sometimes Ps get a “Reply”

Traditionally:
- Each kind of claim (negligence, trespass, etc.) had its own special procedure and process, “forms of
action”, with different kinds of proof, pleading requirements, etc.
- Parties filing civil claims in court were required to have the info that they needed to support their claims
at the time they filed their complaint; no opportunity for pre- or post-filing investigation (Discovery)
FRCP in 1938 reformed these traditional Pleading Rules
- Abolished the different forms of action for one basic “pleading” form that could be used in any kind of
action
- Allowed for liberal amendment in pleading
- Extensive pre-trial resolution (motion to dismiss or for summary judgement)
- Liberal provision for joinder of claims and parties
- Discovery
- Simple provisions for appeal

i.COMPLAINT
FRCP 8(a) Claim for Relief

A pleading that states a claim for relief must contain:

1) A short and plain statement of the grounds for the court’s JD
2) A short and plain statement of the claim showing that the pleader is
3) A demand for the relief sought

8(a)(1): a short and plain statement of the grounds for court’s jurisdiction
- Means “subject matter” jurisdiction
o For example:
▪ Diversity: “the plaintiff is [a citizen of state A/a corp with its principal place of business in
state A]. The D is [a citizen of B/a corp with its PPB in B]. Plaintiff is seeking more than
$75k in this action. 28 USC § 1332.
▪ Federal Q: “This action arises under [the US Constitution 28 USC 1331; specify article or
amendment and section] [a US treaty; specify] [a federal statute; _ USC § _]. The
[Statute at issue] provides a right of action. ## USC ####

8(a)(2): a short and plain statement of the claim showing that the pleader is entitled to relief

FRCP 9: special pleading matters

- Higher pleading requirements for special pleading matters

Gaydos 32
 - Matters include: (b) Fraud or Mistake; Conditions of Mind, (c) Conditions Precedent, (d) Official
Document or Act, (e) Judgment, (f) Time and Place, (g) Special Damages, (h) Admiralty or Maritime
Claim.

Old rule: Pre-Twombly case: Dismissed 12(b)(6) if no POSSIBILITY P will be entitled to relief (very broad)

Conley v Gibson
- Black employees brought action against their union, said it discriminated against them when 45
positions held by blacks were given to whites. DCT dismissed, said they failed to state a claim from
which relief could be granted. SCT reversed, said P’s claim was sufficient under FRCP 8(a)(2)
- Rule: “claim shouldn’t be dismissed unless it appears beyond a reasonable doubt that P can prove no
set of facts in support of his claim which would entitle him to relief”
American Nurses
- P’s alleged they were paid less at their job bc the job was traditionally performed by women and this
violated Title VII of CRA
- DCT dismissed, holding that even if this was true they didn’t demonstrate intentional discrimination in
violation of Title
- CTA reversed; held that the “comparable worth” allegation could provide evidence of intentional
discrimination and the case should survive

New standard: no PLAUSIBILITY that P will be entitled to relief (more narrow)

Bell Atlantic Corp v. TWOMBLY

- P’s alleged that D’s had engaged in conspiracy to restrain trade citing collective action and failure to
compete as evidence of conspiracy. CTA held that P met requirements of 8(a)(2). SCT reversed… said
Conley “beyond a doubt” language allowed too many claims to survive motion to dismiss.
- New PLAUSIBILITY standard: a complaint must state “enough facts to raise a reasonable expectation
that discovery will reveal evidence” to support P’s claim and entitle him to relief
o Possibility = your story could be true
o Plausibility = your story is more likely to be true, 50% likely Twombley
- Story that D did something wrong, is more likely than a “neutral” account of the facts
Why this change? – time and expense of discovery; its impact on the legal system
Conley is not overturned, but the language is rejected; applies to all cases

Questions left open after Twombly:

1. SCT says that are not imposing a “probability” standard, and then apply it for most of the case
2. What is the difference BTW possible and plausible; how much more likely must it be that P can prove
their claim to meet the new standard?
3. Does this apply to all complaints or just antitrust cases?

Erickson v. Pardus (US 2007, Babcock 338)

- Case tried days after Twombly, only mentions Twombly once
- Example: lots of uncertainty after Twombly

Bivens Claim: implied PRA

- Claim against the federal government, that alleges a federal government official violated their
constitutional rights

Applying new Twombly standard:

Gaydos 33
Ashcraft v Iqbal (US 2009, Babcock 340)
- P was Arab Muslim detained by US after 9/11. Sued FBI director and AG alleging decision to detain
was based on race in violation of CONST rights. D moved to dismiss, CTA denied motion to dismiss,
b/c uncertain about Twombly’s unclear standard.
- SCT reversed;
o Citing Twombly, majority concluded that the version of the facts that suggested that D’s violated
P’s rights was less likely that the version in which they acted lawfully based on legitimate,
non-discriminatory reasons
o “taken as true, these allegations are consistent with petitioners purposefully designating
detainees of high-interest bc of their race, religion, nationality… but given more likely
explanations, they do not plausibly establish this purpose
o i.e. The more likely story wins

What do courts do after the Twombly/Iqbal plausibility standard?

1. Follow the standard
2. Ignore the standard
3. Distinguish the standards from each other
4. Create a new combined standard

Swanson v. Citibank (7th Cir. 2010, Babcock 356)

- P alleged that she was denied a bank loan based on racial discrimination; based allegation of
statements made to her by bank officers and the discrepancy in a bank-authorized appraisal of her
home and one they she paid for; DCT granted D’s 12(b)(6) motion to dismiss)
- CTA reversed; took SCT at its word that it wasn’t changing Rule 8 and was not applying a probability
standard:
- Applies a version of the “plausibility” test that sounds reasonable, but does not seem to
closely resemble what the SCT did in Twombly or Iqbal
- “As we understand it, the Court is saying instead that the plaintiff must give enough details
about the subject matter of the case to present a story that holds together. In other words, the
court will ask itself could these things have happened, not did they happen.”

Maybe a compromise? ---

Braden v Wal-Mart Stores (8th Cir. 2009, Babcock 366)
- P alleged that WM had mismanaged employee retirement funds
- DCT granted 12(b)(6) motion to dismiss holding that P failed to allege sufficient facts to show they’re
entitled to relief
- CTA reversed
- When there is a concrete, obvious alternative explanation for the D’s conduct, P may be required to
plead additional facts to rule out alternative
- “obvious alternative explanation”
A P claim can be dismissed at 12(b)(6) stage if there is a concrete obvious more likely story.

The P just has to come up with a story that is not obviously wrong

12(b)(6) motion to dismiss Required exam rule:

1. Grant/deny motion.
2. State the RULE:
a. FRCP 8(a)(2) requires that a complaint present “a short and plain statement of the claim showing that the pleader is entitled to a
relief.” In order to meet this standard, and survive a motion to dismiss under FRCP 12(b)(6) a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face. Twombly
b. A claim is plausible under this definition when the P pleads facts that allow the court to draw a reasonable inference that the D is
liable for the misconduct alleged. Plausibility requires more than sheer possibility that a D has acted unlawfully. Where a complaint
pleads facts that are merely consistent with a D liability, it stops short of the line BTW possibility and plausibility of entitlement to

Gaydos 34
 relief. When a D’s explanation for his conduct which makes his actions lawful is more likely than the Ps version in her complaint that
would hold the D liable, a D’s 12(b)(6) motion to dismiss the complaint should be granted. Iqbal
3. Talk about P version of the story v. D version of the story w/regard to rules
a. New PLAUSIBILITY standard: a complaint must state “enough facts to raise a reasonable expectation that discovery will reveal
evidence” to support P’s claim and entitle him to relief
i. Possibility = your story could be true
ii. Plausibility = your story is more likely to be true, 50% likely Twombley
b. but given more likely explanations, they do not plausibly establish this purpose
i. i.e. The more likely story wins Iqbal
c. “obvious alternative explanation” Braden
4. What would the court do?
a. Strict holding of Twombly/Iqbal: (P’s version of the facts must be more likely that the D’s version)
b. Lenient holding of Twombly, i.e. Braden: Plausibility is not a probability standard, “obvious alternative explanation”

ii.RESPONSES TO THE COMPLAINT

When P files against D in Federal Court, D has 3 responsive options under the FRCP:
1) Pre-answer motion [FRCP 12(b)]
2) Answer [FRCP 8(b)]
3) Counterclaim [FRCP 13(a) and (b)]

1) Pre-Answer Motion [FRCP 12]

(b) Every defense to a claim for relief (Complaint) in any pleading must be asserted in the responsive pleading
if one is required (Answer)

But a party may assert the following defenses by motion to dismiss:

(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process (issue w/actual summons);
(5) insufficient service of process (violated FRCP 4 for how service was processed);
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19.

A motion asserting any of these defenses must be made BEFORE pleading is a responsive pleading is allowed
(before the Answer is filed) EXCEPT 12(b)(1) b/c must be kicked out for lack of SMJ ASAP, whenever
discovered.

4 parts: notice of motion; motion (specific request that judge enter an order); certificate of service; memo in
support of motion

2) Answer
Needs to include:
FRCP 8(b) admissions and denials:
1) In general, amending party must:
a) State in short and plain terms its defenses to each claim asserted against it
b) Admit or deny the allegations
2) Denials: denial must fairly respond to the substance of the allegations
3) General and specific denials:
a. A party that intends in good faith to deny all allegations may do so in a general denial

Gaydos 35
 b. A party that does not intend to deny all allegations must specifically deny said allegations or
generally deny all those except specifically admitted
4) Lacking knowledge or info
a. A party that lacks know or info sufficient to form a belief about the truth of an allegation must
so state, and the statement has the effect of a denial
5) Effect of failing to deny
a. An allegation—other than one relating to the amount of damages—is admitted if a
responsive pleading is required and the allegation is not denied
Fuentes v Tucker (CA 1947, Babcock 395)
- D killed two children due to drunk driving. D amended answer on the eve of trial admitting liability;
CT allowed evidence demonstrating liability anyway. At this point in time, the only thing that
mattered is that they died, not HOW they died (was not yet a claim for parent’s pain and suffering
for child’s death)
- The pleading decides the issues in a case, if the issues are no longer contended then the need for
presentation of evidence is not needed
- APP CT said DCT’s ruling was wrong but harmless error
Zielinski v Philadelphia Piers (PA 1956, Babcock 397
- P was injured in a forklift crash.
- D gave general, technically correct, but misleading response to allegations in complaint
- CTA held that D was estopped from denying agency based on his failure to properly respond to
allegations and prejudice it caused to P

FRCP 8(c) Affirmative Defenses “Even if I did do it, you can’t recover (fully) against me.”

1) In general, in responding to a complaint, D must affirmatively state any avoidance or affirmative

defense:
a. accord and satisfaction; arbitration and award; assumption of risk; contributory negligence;
duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches;
license; payment; release; res judicata; statute of frauds; statute of limitations; and waiver.
2) Affirmative defense= facts are true, but they shouldn’t have their legal effect
Failure to assert affirmative defense in the ANSWER could result in loss of that defense, especially if it comes
as an “unfair surprise” to P

USE IT OR LOSE IT

Ingraham v US (5th Cir. 1987, Babcock 402)

- D’s failed to raise Texas Law that imposed a cap on medical malpractice damages until well after trial
- CTA held that cap was an affirmative defense that the D’s should have raised much earlier, couldn’t
raise it so late
- Rule: The earlier an affirmative defense is pled, the less likely P is prejudiced
- Includes additional affirmative defenses: exclusions from a policy of liability insurance; breach of warranty; concealment of an alleged prior
undissolved marriage; voidable preference in bankruptcy; noncooperation of an insured; statutory limitation on liability; the claim that a written
contract was incomplete; judgement against a defendant’s joint tortfeasor; circuity of action; discharge of a contract obligation through novation
or extension; recission or mutual abandonment of a contract; failure to mitigate damages; adhesion contract; statutory exemption; failure to
exhaust state remedies; immunity from suit; good faith belief in lawfulness of action; the claim that a lender's sale of collateral was not
commercially reasonable; a settlement agreement or release barring an action; and custom of trade or business
- Consequences: If not raised soon enough; (1) you can never assert the defense, or (2) you amend your
answer and allow P to amend their complaint

Test for Affirmative Defense Ingraham v US

1. Whether the matter at issue fairly may be said to constitute a necessary or extrinsic element in the Ps
cause of action;

Gaydos 36
 2. Which party, if either, has better access to relevant evidence; and
3. Policy considerations; should the matter be indulged or disfavored?

Gomez v Toledo (US 1980, Babcock 408)

- DCT ruled that P had to plead facts to reject the defense of qualified immunity
- SCT said qualified immunity was an affirmative defense and D had to show it in pre-trial motion or
answer

Qualified Immunity
- Common Law affirmative defense = “confession and avoidance” “I did violate your rights but I have
immunity from paying you.”
- Qualified immunity as affirmative defense = “I never violated your rights b/c they were vague and not
established.” Reason; we want gov. officials to do their jobs

False Prosecution = (Robin Hood) I did pay my taxes.

GOOD FAITH defense = I believed that he did not pay his taxes and arrested him.

Ziglar v. Abbasi (US 2017, Babcock 411)

- 42 USC 1983; PRA for misuse of power,”dressed” in the authority of state law
- P in Ziglar argued that there should be a similar rule for federal authorities
- Court discusses whether qualified immunity is an affirmative defense

3) Counterclaim

FRCP 13
(a) Compulsory Counterclaim
a. A pleading must state as a counterclaim, any claim that—at the time of its service—the pleader
has against an opposing party if the claim:
i. Arises out of the same facts/transaction that P sued them for
ii. Does not require adding another party who the court cannot acquire JD
(b) Permissive Counterclaim
a. A pleading may state as a counterclaim against P any claim that is not compulsory

iii.AMENDING THE COMPLAINT

One of the big factors of FRCP: allows for liberal amending complaint, not allowed traditionally

1) When can P amend as a “matter of right”?

2) When can P amend complaint otherwise?
3) What impact does statute of limitations has on the ability P can amend a complaint?
FRCP 15(a)

Basically (YOU CAN AMEND ONCE, w/o approval):

- Party may amend pleading once at any time before responsive pleading is filed
- Party may amend complaint once at any time within 21 days of service of the answer OR 21 days after
service of a 12(b) motion; whichever earlier
After that:
- Party must obtain leave from the court or opposing party to amend the pleading (almost always given)
When P files an amended complaint:

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 - D has the amount of time she originally had to file their answer based on the first pleading, or 14 days
after the amended pleading is served; whichever later

What if P wants to amend after the statute of limitations?

2 possible kinds of amendment:

1) To add facts/change legal theory against original D
2) Change the D

Relation Back: allowing amending a complaint after the passage of statute of limitations arising out of the
same facts of the original, keeps the date of the original claim, state needs to allow in statute (like PRA)

Can we relate back?

1. Jurisdiction allows for relation back AND
2. Claim arises out of the same facts

Rule for amending against original D:

FRCP 15(c)

(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the
original pleading when:
a. The law that provides the statute of limitations relates back
b. The amendment asserts a claim or defense that arose out of the conduct, occurrence in the
original pleading
Barcume v City of Flint (MC 1993, Babcock 430)
- P’s women police officers brought action alleging City’s affirmative action plan violated their CONST
rights
- Sought to amend after Statute of Limitations to add claims alleging sexual harassment and
gender-discrimination
- DCT held that amended complaint could include claims that arose out of same facts, not those that
don’t

Rule for amending complaint to change the D:

FRCP 15(c)(1) Relation Back Amendments

(1) An amendment to a pleading relates back to the date of the original pleading when:
c. The amendment changes the party or the naming of the party against whom a claim is asserted,
if the claim arises out of the same facts and the party to be brought in:
i. Received notice of the action (D knew about it) that it will not be prejudiced in defending
on the merits AND
ii. Knew or should’ve known that the action would have been brought against it, but for
mistake concerning the proper party’s identity (mistaken identity)
Krupski v. Costa Crociere SPA (US 2010, Babcock 422)
- P injured on cruise ship sued wrong D
- Sought to amend complaint after Statute of Limitations
- SCT held that P’s failure to sue proper D was based on a mistake in identity and that proper D had
notice of the action and that it should’ve been the proper D so P could amend the complaint to change
the D
- Rule 15 (c) focuses on what the D knows, not what P knows

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 - Rule 15 (c) does not relate to the speed at which P files an amendment, has no bearing on the
substance of the amendment to “relate back” to the original claim

iv.RULE 11 sanctions
FRCP 11 provides:
a) Signature
b) Representations to the Court
1. Pleading is not being presented for any improper purpose
2. Claims are warranted by existing law or not frivolous argument for modifying existing law or establishing new
law
3. Factual connections have evidentiary support
c) Sanctions
1. If 11 (b) is violated, court may sanction
2. Motion for sanctions:
a. Must not be filed if the challenged paper is corrected within 21 days after service
3. On the court’s initiative:
a. Person must show why their conduct doesn’t violate 11(b)
4. Nature of the sanction:
a. Sanction is limited to what suffices to deter repetition of the conduct

Rule 11 ensures that claims that have no legal or factual basis are NOT filed in Federal Court
- Attorneys and parties sign any document filed in Federal Court
- Signature is a promise to the court that the filing has a valid basis in law and fact

Challenges:
- CT has discretion whether to impose sanctions
- P has “safe harbor” provision which allows him to withdraw his complaint (before rule 11 motion is filed, or decision rendered, to avoid
sanctions)
- Rule acknowledges discovery, and the point of sanctions is to provide a deterrence for improper activity by lawyers

Essential provisions to rule 11:

- Requires all filings to be signed; signature is promise that filing is legitimate in fact and law (done
pre-filing research & prep)
- Sanction applied if attorney files something that a reas. attorney wouldn’t have (would’ve done
research & found claims were frivolous)
- 21 day “safe harbor” allows for voluntary removal of offending filing prior to issuance of sanctions;
allows for argument that the applicable law is wrong and should be changed
- Issuance of sanctions is discretionary; amount & type of sanctions should be designed only to deter
repetition of conduct

The Three “Promises” of Rule 11:

1) I didn’t file this form for an improper purpose
2) The claim is warranted by existing law, or makes good argument to change the law
3) This claim has a legit factual basis, or likely to after discovery

1. “not for improper purpose”- should be filed in order to seek a favorable ruling from the court, not some
other malicious or adverse purpose

2. “warranted by existing law”- attorney won’t be sanctioned if she does a reasonable level of research to
determine if the claims asserted have a valid legal basis, or she is attempting to generate a change in
the law

3. “factual contentions have evidentiary support”- attorney will not be sanctioned if she does reasonable
factual investigation before filing and relies on discovery to develop evidence

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Warranted by law cases:

Christian v Mattel Inc (9th Cir. 2002, Babcock 459)

- SCT sanctioned P’s attorney for a range of litigation-related actions, some of which NOT involved in docs. Filed
within the court
- CTA affirmed sanctions based on preps for filing a frivolous complaint, but not other actions by attorney
- Rule 11 sanctions ONLY for docs filed in court (not behavior is prior proceedings, oral reps. At hearings, etc.)

Evidentiary support cases:

Business Guides v. CCE (US 1991, Babcock 452)

- Publisher of commercial directories filed claim against competitor alleging that D was copying P’s entries
- P made repeated false assertions to lawyers who put them in the filings to the court
- SCT sanctioned lawyer bc he kept relying on client after it became clear he wasn’t reliable
- Actions by attorney’s was unreasonable

Kramer v Grant County (7th Cir. 1990, Babcock 453)

- P filed Sec. 1983 action alleging that her former fiancé’s parents engaged in conspiracy w sheriff to violate her
rights
- Claim rejected on summary judgement and DCT imposed sanctions
- CTA reversed sanctions bc lawyer did reasonable pre-filing investigation & acted as a reasonable attorney relying
on discovery to generate proof
- Actions by attorney was reasonable

“Reasonable” Investigation Test:

- Was there sufficient time for an investigation?
- How much did the attorney rely on his own client?
- Whether the attorney got the case from another attorney?
- Complexity of the case
- Whether discovery would have helped in developing facts?

VI.DISCOVERY AND SUMMARY JUDGEMENT

i.Discovery Reform—mandatory discovery disclosure
FRCP 26 provides initial disclosure requirements and the “scope” and “privileges” in discovery

- Before FRCP, had to ask opposing party for info by discovery devices
- Now, process starts with voluntary sharing of info--- “Required Disclosures” FRCP 26(a)

Most important innovation of FRCP- voluntary sharing of info between parties at outset of litigation

Discovery Disputes: judges (like parents) just want quiet and to stop the argument

Critiques of discovery led to changes:

1) Sanctions for discovery abuse (outside Rule 11, b/c discovery is BTW parties) (FRCP 37)
2) Required voluntary sharing of info at beginning of case (FRCP 26(a))
3) Rules to deal with electronic discovery

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 4) Limiting scope of discoverable info
5) Limiting requests for large amounts of relevant but tangentially related material (“proportionality”)

Summary of rule 26(a) “Mandatory Disclosure Requirements”

1) Name of every person likely to have discoverable info
2) Copy or description of all docs in possession of the opposing party, and that the party may use
to support its claims and defenses
3) Computation of damages
4) Any relevant insurance agreement
5) Identity of any person who may be used at trial to present expert testimony; and any written
report made by them (must be done at least 90 days before trial)
6) Names of all other witnesses (at least 30 days before trial)

Required disclosure case:

Chalick v Cooper Hospital (NJ 2000, Babcock 503)
- P in medical malpractice case was not provided w name and role of doc who treated his kid in mandatory
disclosure period
- Found out about specific doc after statute of limitations passed, P wants to amend complaint to add new D FRCP
15(c)(1) not a 15(c) case b/c no evidence the doctor knew he should have been the D
- DCT allowed P to amend complaint to add doc bc D should’ve included the name earlier, and doc was aware of
the suit and that he wasn’t sued bc of a mistake of fact AND D’s failed to meet mandatory disclosure requirements

ii.SCOPE OF DISCOVERY
Scope of discovery: FRCP 26(b)(1)--- (what is “relevant” discovery?) analyze all 3 in test questions
even on A/C
1) All info relevant to claim or defense (is the information worth it?)
a. Blank v. Sullivan (NY 1976, Babcock 513)
i. Women denied employment, asked for records of women being denied
promotions within the company to prove overall discrimination against women
ii. Info requested may not have been relevant to P’s claim but was reasonably likely
to lead to the discovery of relevant evidence
iii. Relevant= evidence tending to prove or disprove an alleged fact, can make
existence of a fact more or less likely
2) That is proportional based on amt. in controversy in the case compared to the cost of
producing the requested discovery (is the information going to cost a lot of money for a case
that is not a lot of money)
a. Consider importance of info, cost and time required to get it, and importance of the
underlying suit
b. Don’t do a $100k discovery for a $700 case
3) That is not privileged
a. 2 often applied privileges:
i. Attorney/Client common law
1. Protects confidential communications between client and attorney in
furtherance of legal representation from disclosure in discovery
a. Doesn’t apply to WHAT is talked about, just communication itself

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 b. Privilege only applies to “What did you tell your lawyer…” or “What
did your client say…”
2. Communication must be in course of relationship between attn. and
client (attorney doesn’t have to end up being hired, but can’t be with
someone who just appears to be a lawyer)
3. Can’t be around a 3rd party or disclosed to a third party after (must be
confidential and remain confidential)
4. Protects only communication, not facts said
a. Only protects against the question: WHAT DID YOU TELL YOUR
ATTORNEY
ii. Work Product Doctrine Rule 26(b)(3)
1. Material prepared “in prep of litigation”
a. Specific anticipated litigation, not just general possibility of future
litigation
2. Material produced by attn., client, or someone who works for either if
produced on attn. client’s behalf in anticipation of specific litigation
3. NOT an absolute privilege—opponent can get access to “regular” W/P
material in discovery if they show “substantial need” Rule 26(b)(4)
a. Necessity = even though that information is protected under work
product doctrine, I can’t get it anywhere else
4. Cannot use necessity for ANY “Opinion work product” (material that
shows thought process & strategy of attn. is all but completely protected
from disclosure in discoveryRule 26(b)(4)(ii)(B)
Discovery privileges cases:
Hickman v Taylor (US 1947, Babcock 522)
- P was a surviving member of a tugboat sinking, D’s attorney interviewed witnesses of accident and took notes
- P’s attorney sought interviews with witnesses of accident conducted by D’s attorney in discovery
- D’s attorney wouldn’t disclose
- SCT notes that attorney client privilege doesn’t apply, but says work-product doctrine does
- Says P can get this info themselves, and getting it from D would disclose his mental and strategy—harming
practice of law Rule 26(b)(4)(ii)(B)
Upjohn v US (US 1981, Babcock 536
- In anticipation of legal action by Fed Gov, GC for Upjohn conducted internal investigation/interviews with
employees
- Gov sought this info from the investigation/interviews in discovery
- Who does attorney client privilege apply to??
- SCT held that both AC and WP privilege protected this stuff
- Rejects “control group” for AC in corp. setting— “subject matter” test; extends to all employees. ACP
extends to every employee in a corp.

Questions regarding the scope of protection from the Work Product Doctrine:
1. How immediate does the “anticipation” of litigation have to be?
a. In Re Sealed Case (DC Cir. 1998) 
i. DCT Cir held that only question is whether the material was prepared based on an actual
subjectively and objectively reasonable belief that litigation was even a “real possibility”
b. US v. El Paso Co. (5th Cir. 1982)
i. “litigation need not be imminent ... as long as the primary motivating purpose behind the
creation of the document was to aid in possible future litigation. *** an attorney’s work in
preparing a tax return did not fall under the work product doctrine because the work was not
primarily motivated to assist in future litigation over the return.”
2. Does the material produced have to be for the litigation in order to be W/P?
a. United States v. Adlman (2nd Cir. 1998, Babcock 531)

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 b. (IRS issued a summons for a memorandum prepared by corporation’s outside accountants at the request
of company’s tax lawyers to assess the tax consequences of a reorganization for anticipated litigation with
the IRS)
c. CTA held that W/P doctrine applied: “where a document is created because of the prospect of litigation,
analyzing the likely outcome of that litigation, it does not lose protection merely because it is created
in order to assist with a business decision.”
3. Can you ever require disclosure of “opinion” W/P?
a. Almost never
b. ONLY when the actions of the attorney are in question
i. Ex. cigarette company disclosure; cigarette companies were bringing in their attorneys in every
meeting where negative medical information was disclosed; DST court ordered cig companies to
turn over the meeting information COA overturned decision

iii.Summary Judgement
Summary judgement is POST-discovery & PRE-trial resolution of a claim

How is it diff. from 12(b)(6) Motion to dismiss?

- 12(b)(6) is pre-discovery
o Asks “if P’s allegations are true, do they have a plausible chance of success?”
What is a trial for?
- To determine who is telling the truth
Summary judgement (Rule 56—post-discovery)
- “Can the P succeed in her claim relying on the evidence that has been developed in
discovery?”
- Granted when there is NO NEED for a trial, when there is no dispute as to material facts

FRCP 56 Summary Judgement:

a) Motion for summary judgement or partial summary judgement:
a. A party may move for summary judgement, identifying each claim or defense—or part of
each claim or defense—on which Summ J is sought.
b. Shall be granted if the movant shows that there is no genuine dispute of material fact
that the movant is entitled to Summ J as a matter of law
b) Time to file a motion
a. Unless diff time set by local rule or court orders otherwise:
i. A party may file motion for Summ J at any time until 30 days after the close
of all discovery
c) Procedures:
a. Supporting the factual positions: a party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
i. Citing particular parts of materials in the records
ii. Showing that materials cited establish the absence or presence of a genuine
dispute, or that opposing party can’t produce admissible evidence to support the
fact
FRCP 56(c) 2 ways to support SJ motion when you file it (saying no trial, genuine issue of
material fact):

1) Cite evidence in the record that shows the fact is not in dispute (here is my evidence that the
P can’t win)

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 2) Show LACK of evidence presented by other side supporting that the fact is in dispute (it's
been X amount of time of discovery, and there is no evidence to support the claim)

When motion is filed, opposing party has 2 options to respond:

1) File own cross-motion for summary judgement

a. Agree with facts asserted by other side arguing solely on the law
b. Or presenting their own view of the undisputed facts
2) File opposition for motion for Summ J
a. There are material facts in dispute we need a trial

Summ J cases:
Adickes v Kress (US 1970, Babcock 682)
- P alleged that her const rights were violated when she was arrested after refusal of service at diner with a racial
mixed group; said sheriff conspired with owner of lunch counter
- DCT granted SummJ for sheriff bc P failed to show dispute of fact; CTA affirmed
- SCT reversed, said D was not entitled to SummJ bc it did not state absence of material fact, namely that sheriff
was not in the store, jury could rule in P’s favor if he was

The 1986 Trilogy: Determining When to Allow Summary Judgement

Celotex Corp v Catrett (US 1986, Babcock 688)
- P sued several asbestos makers alleging that asbestos exposure caused her husbands death
- D filed motion for SummJ saying P had no evidence that husband was exposed to its company’s asbestos
- CTA overturned grant of SJ requiring D to file affidavit in support of SJ
- SCT reversed, held that Adickes did NOT hold that D’s must provide evidence in form of affidavit to demonstrate
absence of issue of face
- D is NOT required to provide affidavit to support Summ J motion

Catrett v Johns-Manville Sales Corp. (DC 1987, Babcock 696)

- Remand of SCT case to determine if P showed sufficient evidence post discovery to survive SJ
- P showed 4 things;
- Letter from Exec of company her husband worked for, showing husband worked there, he was exposed to
Firebar asbestos, and that Firebar was owned by D
- Listing the exec as a witness (b/c if letter is inadmissible his testitomyn won’t be)
- Documents showing D owned Firebar while husband was exposed to it
- Direct link BTW Firebar and D
- Jury could find for P, based on evidence discovered SJ denied
- The record contains sufficient evidence to create a genuine issue of material fact

“Winning” the Summary Judgment Motion (the “burdens” on parties seeking a grant of summary
judgment):
- Party filing the SJ motion always has the burden of demonstrating that there is no genuine
issue of material fact and, therefore, no need for trial
This “burden” has two components:
1. Burden of production (which shifts to the non-moving party if the moving party offers
evidence to support the motion – “tennis match”)
2. Burden of persuasion (which always stays with the moving party)

If the party with the burden of persuasion at trial (usually P) files SummJ:
- ONLY granted if she shows a reasonable fact finder could ONLY rule in her favor

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If the party without the burden of persuasion at trial (usually D) files SummJ motion will be
granted if he either:
- Provides affirmative evidence that negates an essential part of the non-moving party’s claim
(I’ve got the smoking gun!)
- Demonstrate that the non-moving party has insufficient evidence to prove an essential part of
her claim (They don’t have enough evidence to win)

In ruling on SummJ motion, must view facts in light most favorable to the non-moving party, when
determining if there is a genuine issue of fact.
Matsushita Elec v Zenith (US 1986, Babcock 701)
- P (tv manufacturer) alleged that Jap companies engaged in conspiracy to flood US market with low priced TVs to put US
manufacturers out of business
- DCT granted SJ to D’s but CTA reversed “holding that a fact finder could have inferred, based on several conclusions, that the
defendants were part of a conspiracy to deflate prices in the American market to drive out American manufacturers.”
- SCT affirmed grant of SummJ held that allegation was consistent w antitrust conspiracy but was not sufficient to allow a
reasonable jury to conclude that there was conspiracy
- FRCP Rule 56 allows the judge to take on ‘some role of the jury’ in the discretion to determine SJ

Anderson v Liberty Lobby (US 1986, Babcock 706)

- CT granted D’s Summ J on libel claim arguing that P would not be able to succeed at trial given heightened standard of proof
for such a claim: need to show D not only got it wrong but that D knew it was wrong or was reckless in fact checking
- SCT affirms grant of SummJ for D’s; it’s appropriate for CT to consider relative difficulty of success in case when deciding to
grant SummJ, P had no evidence to prove what was necessary for case

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