Civil Procedure

Introduction
Sibbach v. Wilson: Did Rule 35 abridge substantive rights of petitioner contrary to provisions of Rules Enabling
Act?
 Roberts’ view: Rules Enabling Act deals with whole realm of procedural rights. Sibbach: it only deals
with unimportant procedural rights.
Sibbach’s Dilemma: P had to decide whether to call 35’s provisions substantive or procedural.
 If substantive: Indiana substantive law would apply-examination
 If procedural: uniform rules of procedure (FRCP) would apply-35, exam
 So P argues that 35 is procedural, but impinges on a substantive right (to be free of bodily invasion)
which is prohibited under REA
Issue: Does a procedural rule that affects a substantial and important right necessarily exceed the
rulemaking authority granted to the court under the Rules Enabling Act?
 Holding and Rule (Roberts): No.
Pleading Functions
 Common Law function of pleading: Narrow issues for trial. Very technical and formal.
 Original Fed. System function of pleading: Give notice of claims/responses (Conley)
 New Fed. System function of pleading: Gate-keeping. Need plausibility
o Policy: Cases which need discovery phase could be weeded out. New heightened pleading
requirement only applies to plaintiff.

Timing:
 Motions, notices of Hearings 6(c): A written motion and notice of the hearing must be served at least
14 days before the time specified for the hearing. Exceptions: when the rules set a different time or
when a court order sets a different time
 Time to serve a Responsive Pleading 12(a)(1): A defendant must serve an answer:
A. A defendant must serve an answer within 21 days after being served with the summons
and complaint, or
a) If it has timely waived service under Rule 4(d), within 60 days after the request for a
waiver was sent, or within 90 days after it was sent to the defendant outside any
judicial district of the US.
B. A party must serve an answer to a counterclaim or crossclaim within 21 days after being
served with the pleading that states the counterclaim or crossclaim
C. A party must serve a reply to an answer within 21 days after being served with an order
to reply, unless the order specifies a different time
 Effect of a Motion 12(a)(4): Unless the court sets a different time, serving a motion under this rule
alters these periods as follows
A. If the court denies the motion or postpones its dispositions until trial, the responsive pleading
must be served within 14 days after notice of the court’s action; or
B. If the court grants a motion for a more definite statement, the responsive pleading must be
served within 14 days after the more definite statement is served
 Amendments Before Trial
(1) Amending as a Matter of Course: A party may amend its pleading once as a matter of course
within:
A. 21 days after serving it, or
B. If the pleading is one to which a responsive pleading is required, 21 days after the
service of a responsive pleading or 21 days after service of a motion under Rule 12(b),
(e), or (f), whichever is earlier
(2) Time to Respond: Unless the court orders otherwise, any required response to an amended
pleading must be made within the time remaining to respond to the original pleading or within 14
days after service of the amended pleading, whichever is later.
 Time for Initial Disclosures (26(a)(C): A party must make the initial disclosure at or within 14 days
after the parties’ 26(f) conference unless a different time has been set
 Time to Disclose Expert Testimony 26)(a)(D): at least 90 days before the date set for trial or for the
case to be ready for trial
 Time to Respond to Interrogatory (33): The responding party must serve its answers and any
objections within 30 days after being served with the interrogatories.
 Time to Respond to Request for Discovery of Documents/Tangible Things (34): 30 days
  Time to Respond to Requests for Admission (36): 30 days. A matter is taken as admitted if no timely
response.
 Time to File a Motion for Summary Judgment 56(b): Any time until 30 days after the close of all
discovery
 Expiration of Temporary Restraining Order 65: 14 days after entry unless before that time the court
extend it for good cause
 Renewing Motion for Judgment as a Matter of Law 50(b): May be filed no later than 28 days after the
entry of judgment
 Time to File a Motion for a New Trial 59: Must be filed no later than 28 days after the entry of
judgment
Phases of a Lawsuit
1. Pretrial
I. Pleading: Rules 6-13; 15
Goals of FRCP: Rule 1: The rules should be construed, administered, and employed by the
court and the parties to secure the just, speedy, and inexpensive determination of every
action and proceeding
 Rule 7(a): Only types of pleadings allowed. Great difference from common law “Ping
Pong” pleading
1) Complaint
2) Answer to complaint
3) Answer to a counterclaim designated as a counterclaim
4) Answer to a cross claim
5) If the court orders one, a reply to an answer
Replying to Defenses: 7(a) if answer sets up an affirmative defense court normally
does not permit a reply.
 Policy: Pleadings are only supposed to set up the trial/give notice. No
need for the Ping-Pong of common law
 Rule 8: Stating the Claim
 8(a)(1): short and plain statement of the grounds for the court’s jurisdiction
 Complaint shall contain a “short and plain statement of the claim showing that the
pleader is entitled to relief” 8(a). Judges are to construe the complaint liberally in favor
of plaintiff and assume truth of facts alleged.
o Conley v. Gibson: Set forth “notice pleading”. Only have to give defendant fair
notice. Stated that Federal Rules were meant to facilitate a proper decision
based on its merits and not on technicalities/traps. Very indulgent towards P.
 Legal sufficiency test: See if any legal claim exists that would be
consistent with complaint
 Factual sufficiency test: Only need a short plain statement that gives
fair notice of what P’s claim is about
 Policy: Want cases to be decided based on their merits and not be
a game of skill and traps where one mistake by counsel can decide the
outcome (Sierocinski: Injured crimping dynamite. Court found that his
pleadings were detailed enough to be considered a short, plain
statement. But on appeal the judge found that there was no proof
adduced to support a finding of any of the specific acts of negligence
alleged. Also, the court rejected the plaintiff’s attempt to switch the
case to breach of warranty)
o Movement away from notice pleading:
 Ps must now allege enough facts to show that their claim is plausible
using non-conclusory terms, not just conceivable (Twombley). Judges
will evaluate whether facts are sufficient to assert a plausible claim.
 Policy: Many different opinions and points of view! Can be
difficult to draw line between facts and conclusions
 Plausibility test: P must establish by nonconclusory statements the
complaint’s plausibility
 Applies to all matters, not just anti-trust cases (Iqbal)
 Legal conclusions are not entitled to truth assumptions.
 Factual sufficiency test: P must plead facts and perhaps some
evidence.
  Policy: Gate-keeping function. Change away from notice pleading
impacts Ps who need discovery phase to learn particulars
 Pleading Alternatively or Inconsistently: Plaintiff may join in the complaint, either as
independent or as alternative claims, as many claims as he has against the defendant,
regardless of consistency 8(d)(2)
 Rule 11 limits on legal allegations: ethical parameters on both factual and legal
positions a party presents to the court
 Applies to every pleading, motion, and paper filed
 Must be signed by attorney of record, or party if not yet represented
 Purpose: Stop, Think, and Investigate: Party must certify to have
made an inquiry into the pleading and must assert a legal position
(position warranted by law in some way)
 Policy: deter baseless filings and prevent abusive trial tactics
 Party can admit to not having much supporting evidence at the time
but expecting to find more 11(b)(3). Difficult to see how this can
coexist with Twombley
 Drawbacks: Vague standards, might chill meritorious
claims/vigorous advocacy, judges not trained to evaluate quality of
lawyering, can place lawyer in horns of dilemma (too much
investigating vs. not enough), and encourage satellite litigation
(discussion about whether Rule 11 has been violated)
 Sanctions: Must be limited to what suffices to deter repetition of the
conduct by others similarly situated. Must strike a balance. Want to
deter, but without chilling meritorious litigation.
Rule 11 Safe Harbor Provision:
o 11(c)(2) motion to withdraw an unsupported allegation
The rule provides that requests for sanctions must be made as a separate motion. Not to be filed until at least 21
days (or such other period as the court may set) after being served. These provisions are intended to provide a
type of “safe harbor”. Under the former rule, parties were sometimes reluctant to abandon a questionable
contention lest that be viewed as evidence of a violation of Rule 11.
II. Defenses and Objections: Rules 7(b), 8, 12, Forms 30, 40
 Denials 8(b):
o Failure to deny any allegation constitutes an admission of it. D can admit to
not having enough info at the time, which will also count as a denial. If D means
to deny only part of allegation he must specify what is true and deny only the
parts that are not.
 Policy: Can help narrow the scope of the dispute considerably
 Motion to Dismiss
 Not required. These Rule 12 defenses can be raised in an answer instead.
 Purpose of Motion to Dismiss: Judicial economy or to flush out
preliminary problems and resolve them before getting into
substantive work of lawsuit.
o Rule 12(b) Defenses:
1) Lack of subject matter jurisdiction
2) Lack of personal jurisdiction
3) Improper venue
4) Insufficient process
5) Insufficient service of process
6) Failure to state claim upon which relief can be granted
7) Failure to join a party under Rule 19
 Failure to raise defenses
o Disfavored defenses 12(b)(2)-(5) Must be raised in initial response
 D should be able to realize these right away so can’t keep these in her
back pocket in case things go badly
 Don’t want to waste judicial resources/delay proceedings
 If action is dismissed over one of these Plaintiff can cure defect and
case will continue. These defenses only delay the case.
 Conflict between Letter and Spirit of Law
 Letter: 12(h)(1)(A) states that there is no
resurrection/escape from waivers
  15(a) states that amendments can be made. No traps!
 Preserved Defenses: Can be part of pre-answer motion, but not waived if not
raised. 12(b)(6)-(7).
o Go to determining substantive rights and duties of parties. Too
fundamental to be subject to any rigid early waiver requirements
o 12(b)(6) defenses can be raised before disposition on the merits, but
not after
 Policy: Should cutoff be sooner than start of trial, as case
decides?
 Judicial economy: cutoff should be before trial
 But we don’t want people to recover on claims that have no
legal basis, so maybe cutoff should be later
 Unique Defense 12(b)(1): subject matter jurisdiction
o Cannot be waived and can be raised by either party at any time
o Court can raise this sua sponte. Federalism/separation of power
concerns
 D may plead as many alternate evidence-supported (Rule 11) defenses she has
regardless of consistency
 12(e) & (f) Movement for more definite statement/movement to strike. Made before
filing responsive pleading
o 12(f): the court may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter. The court may act
on its own or on motion made by a party either before responding to the
pleading or, if a response is not allowed, within 21 days after being served with
the pleading
 P will virtually always be given at least one opportunity to amend dismissed complaint
under 12(b)(6) before case is dismissed
o Policy: facilitation of deciding cases on their merits, rather than on procedural
points. Also eliminating traps for the unwary and protecting clients from effects
of lawyers’ mistakes
 Affirmative defenses: Should be raised in answer. Contributory, SoL, res J
 Defendant’s Claims (Rule 13): Counterclaim/Crossclaim
 Compulsory counterclaim: 13(a) Pleading must state as
counterclaim any claim that-at the time of its service- the pleader has
against an opposing party if the claim arises out of the transaction or
occurrence that is the subject matter of the opposing party’s claim and
doesn’t require another party over whom the court cannot acquire
jurisdiction. Precluded from asserting later
 Permissive counterclaim: 13(b) Pleading may state as a
counterclaim against an opposing party and claim that is not
compulsory, i.e. not from same transaction
 Difference between Counterclaim and Affirmative Defense:
Affirmative defense is to defeat Plaintiff’s suit seeking damages.
Counterclaim is seeking damages for injuries to Defendant.
 Counterclaim is not a defense. Related to P’s claim because
both arose from same closely related set of events
 Can use “same evidence test” to determine if claim arose from same
transaction. (Coleman)
 Policy: Rationale behind 13(a) is to have the whole controversy
determined in one action. Judicial economy.
 Crossclaim: A pleading may state as a Crossclaim by one party
against a coparty if the claim arises out of the transaction or
occurrence that is the subject matter of the original action or a or of a
counterclaim, or if the claim relates to any property that is the subject
matter of the original action.
III. Amending the Pleadings Rule 15(a), (b), (c)(1)(B)
 Amendments Before Trial: 15(a)(1) allows a party to amend his pleading once as a
matter of course within a certain time limit. Length of this period of time turns on
whether his pleading requires a responsive period. 21 days after serving or 21 days after
service of responsive pleading.
  After the initial period has gone by the party can still request court’s permission or
consent of other party to amend pleading. 15(a)(2). Liberal standard. Reflects idea that
parties should not be barred from proving claim or defense simply because they had not
pleaded it on the first day of the lawsuit unless there is a good reason.
o Denials of Leave to Amend
 As trial approaches tension increases between the premiums the
Rules place on flexibility to reframe the issues and the due process
right to an adequate opportunity to meet the claim. Might not be fair
to introduce something right before trial.
 Opponent of amendment needs to show: Fault (mover for not bringing
it sooner)-Prejudice (to mover’s presentation interests)>Fault (of
opponent in inducing delay)-Prejudice (to opponent’s reliance
interests by introducing amendment) F (m)-P(m)>F(o)-P(o)
 Court might look for bad faith (did they make an effort to
investigate? Did they affect the erroneous decision?),
strategic behavior, prejudice, and undue delay (Did the party
wait so long that they other party will now need to re-start
discovery or defense? Will there be a loss of evidence?) as
reasons to deny amendment (Aquaslide: P relied on the
evaluations of 3 insurance companies to determine
manufacturer of the slide, so no bad faith)
 Goals of Rule 15(a)(2): Liberal Amendment standard
1) Allow amendment unless undermines judicial
efficiency.
2) Ensure decision on merits
3) De-emphasis on importance of pleadings (only
supposed to “give notice”)
4) Fairness. Don’t want a valid defense to be lost
 Amendments During and After Trial
o Court should freely permit amendment to evidence if doing so will aid in
presenting the merits and will not unduly prejudice the other party.
o Party may move to amend pleadings to include an issue that has been clearly
understood as being litigated
 Relation back of Amendments 15(c)
o Normally arises when party adds claim by amendment after the limitations
period for that claim has passed.
o Claim asserted in amended pleading will be treated as though it had been
asserted in the original pleading if it arises from the conduct, transaction, or
occurrence set forth in the original pleading 15(c)(1)
 Once you have sued the defendant for a certain transaction or
occurrence within limitations period, any amendment to add new
claims based on same transaction will be treated as though it had
been in the original complaint. Point of Statute of Limitations is to give
notice, so if it’s the same transaction, you were given notice and won’t
be unduly burdened by this new claim.
o Statute of Limitations vs. Amending Pleadings
o Purpose of Statute of Limitations: don’t want to adjudicate on stale
claims where witnesses and evidence might be gone
o Amending Pleadings: Claims shouldn’t be lost because of pleading
errors.
o Compromise: As long as party has notice within limitation period it’s
deemed fair to allow amendment
 Relation Back of Amendments Against New Parties
o Will relate back only in unusual case where the plaintiff, due to a mistake about
the identity of the proper party, sues the wrong one, but the proper party
learns of the suit within the period for service of the complaint and realizes it
was actually meant to be the defendant. (15)(c)(1)(c)
 Purpose of the statute of limitations is to make sure that the real party
knows about the suit within the proper time period.
IV. Disclosure & Discovery: Rules 26; 30-37; 45
 Purposes of Discovery:
 Prevent Ping-Pong pleadings
 Prevent the trial from being a drama of surprises with the happy ending for the
side with the more extensive facilities for private investigation or the more
agile court performer.
 Also help facilitate the efficient presentation and resolution of conflicts (many
disputes settle).
 Parties’ also get to fully develop their positions.
 The parties conduct discovery, and a judge is not present-court not very involved.
 Non-parties must be subpoenaed. A subpoena is a court order that commands a non-party to appear
and produce evidence or give testimony. Rule 45.
Disclosure: Rule 26(a). Essentially makes the obvious discovery automatic. Parties must now disclose certain
core info without awaiting a discovery request.
 Policy: Aimed at achieving some savings in time and expense, and also at moderating litigants’
adversary behavior in the pretrial process.
o Parties must disclose:
1) Routine evidentiary and insurance matters
2) Info about experts they might call
o Parties must disclose names of their testifying experts at least 90 days before trial with
report of their opinions, qualifications, compensation
 Based on recognition that experts cannot be effectively cross-examined at trial
without the opportunity to conduct discovery concerning their opinions and the
bases for their opinions
 Parties can only seek discovery of non-testifying experts upon showing of
“exceptional circumstances”
 These experts are fully involved in preparation of trial, so discovery of these
elements would allow counsel to delve deeply into her opponent’s strategy and
would stifle open exchange between counsel and her own experts.
3) Witness lists
 All disclosures must be written, signed, and served . Must be signed by an attorney certifying that
disclosure is complete and correct, and must be filed promptly
 26(a)(1)(E): Duty to disclose based on information reasonably available; must investigate
 Attorneys and unrepresented parties must confer to consider the case and disclosures and attempt to
develop a proposed discovery plan. 26(f)
o Attorneys for both sides benefit from working together. They both need info; so don’t want to
dig heels in too much. They are also aware that the judge will be mad if they waste her time
instead of working things out on their own.
Discovery:
Party may obtain discovery regarding any nonprivileged matter that is relevant to the claim or defense of
any party. Relevant info need no be admissible at trial (this inadmissible info could help the party develop her
case)
 Before 2000 discovery was allowed of any matter, not privileged, relevant to the subject
matter
Protective Order 26(c)
o Policy: Purpose of protective order is to protect party or person from annoyance,
embarrassment, oppression, or undue burden or expense. Party must certify that
the movant has in good faith conferred or attempted to confer with the other
affected parties in an effort to resolve the dispute without court action.
 For example, courts may not want to compel sexual harassment accusers
to disclose sexual history because it may discourage future sexual
harassment litigants. Marginal value of the info is outweighed by intrusion
into privacy.
Rule 37: Party can move to compel production/compliance if opponent refuses discovery request. When a
party encounters recalcitrance, he must first confer with the other party, then he can go to the court to get a
directive order, then if there is still recalcitrance he can go to the court to obtain a sanction
Person’s Own Statement: A party may obtain upon request, without the showing generally required for
discovery of statements of witnesses, his own previously made statement about the subject matter of the action.
26(b)(3)(C)
Under Rule 26(b)(3)(C), any person, including a non-party witness, is entitled to a copy of a statement given to a
party's representative, so long as the nonparty either wrote or signed the statement, or the statement is a
substantial verbatim recording or transcription of what the nonparty told the representative.
Oral Depositions: Rule 30
Rule 45: Subpoena ordering non-party to appear for deposition. Federal district court can only subpoena
witnesses within that district or within 100 miles of the place within the district where the deposition is taken.
Meant to protect witnesses from having to travel long distances to be deposed.
Reasons to take deposition:
1) May know or suspect that person has info that would aid him in investigation
2) May be genuinely in dark about adversary’s pleadings and disclosures
3) Witness may be unavailable to testify
4) Requires immediate on-the-spot answers. No preparation even though deponent normally
consults with attorney before deposition.
5) Flexibility. Can adapt questions to deponent’s answers.
6) May expose fatal weakness in adversary’s claim and be able to motion for summary judgment
Disadvantages: Expensive, witness will be more prepared at trial, other side will get preview. It is often best to
conduct depositions later in the discovery process when the facts and theory of the case have been fairly
developed. This way counsel can plan a deposition to cover all the bases and get all of the relevant information
instead of having to obtain the leave of the court to depose the same witness twice.
Objections: Objections will be noted, but deponent should answer, under any appropriate objection, all
questions, except for particular questions thought to fall outside the scope of discovery and to call for an answer
that would infringe on privilege in a damaging or offensive fashion. Can be objected to at trial again.
 Party may request a protective order after receiving a discovery request.
 Rule 30(d)(3) authorizes a party to move to suspend or limit the scope of the deposition where the
examination is being conducted in bad faith or in a manner that seeks to annoy, embarrass, or oppress
the deponent or party.
 Court may also limit discovery if it is of marginal relevance, obtainable in
another way, or if the burden of production outweighs the likely value of
the information.
Scope of Discovery: Questions about factual contentions are permissible (Brandenburg), but questions about
legal contentions are not (Umprhes)
 Pure Law>>Legal Contentions>>Mixed<<Factual Contentions<<Pure Fact
Exceptions: Some confidentiality is judged to be more compelling than access to the evidence
 If objecting based on privilege the party must expressly claim the privilege and describe the nature of
the documents or communications withheld
 Attorney-client privilege: Bars inquiry into communications between a client and her counsel in the
course of legal representation.
 Work product privilege: Bars production of certain materials developed in anticipation of litigation
(materials in a lawyer’s file that are created in the course of investigating a case and preparing to try
it.)
o Hickman court first recognized the protection for work product materials. Plaintiff’s
counsel sought discovery of defense counsel’s notes of interviews with various witnesses
to the tugboat sinking. Also requested through interrogatories the substance of other
interviews that defense lawyer had conducted but hadn’t written down. Effectively
wanted Fortenbaugh to write out his memory of the interviews in response to the
interrogatories.
o Lasting legacy: showed that the discovery Rules were not intended to
eliminate the adversary system, even though they very substantially
transformed the role of the advocate.
o 3 types of materials protected under Hickman. (Different degrees of protection)
1) Written statements of witnesses (Ordinary work product):
discoverable if witness isn’t available and when material contains
facts hidden in lawyer’s file that aren’t privileged and are necessary
for adversary to prepare and he cant prepare any other way
2) Attny memos of oral statements (Opinion work product): not
discoverable in this case, but maybe in rare instances
3) Attny mental impressions (Intangible WP)
o Concerns over allowing discovery of WP:
1) Could reveal counsel’s case evaluation and trial strategy to the opposing party.
Lawyers might start not writing anything down, which would negatively impact
 their ability to successfully defend their client. They also would be prevented
from developing their case strategy in private.
2) Also other lawyers might try to build their cases through opponents’ efforts
rather than their own.
3) Concern that attorneys might end up witnesses in their own cases if the
statements they produced contradicted other testimony from the same
witnesses.
4) If lawyers had to share their mental impressions they might make false or
misleading statements
Hickman vs. 26(b)(3):
Hickman:
o Opinion Work Product has almost complete immunity from discovery: privilege can be waived if party
shows they have a substantial need for it and cant get it without undue hardship
o Hickman only covers Attny material.
26(b)(3):
o Documents and Tangible Things: 26(b)(3) only applied to documents or tangible thing. So would
protect Fortenbaugh’s witness statements and memoranda, but not his recollections (intangible WP).
Hickman continues to provide protection for latter.
o Experts: 26(b)(3) regulates discovery regarding experts who will testify at trial and forbids discovery
in almost all circumstances regarding the work of expert consultants who will not testify at trial.
o Expands protection from Attny WP to other representatives besides Attny working in anticipation of
trial
o Complete immunity for Opinion WP (Hickman: qualified)
o No exception for Opinion WP from past trial (Duplan)
o Rule 26(b)(3) Test:
Step #1: Is the material a document or tangible thing?
Was it prepared by or for another party?
Was it prepared in anticipation of trial?
Who prepared it? For what use? At whose request? Timing
If the answer to these questions is yes, the document enjoys presumptive protection under Rule 26(b)
(3). Then go on to Step #2
Step #2: Does the requesting party have a substantial need for the material in preparing its
case? Is it unable to obtain equivalent information by other means?
If the answer to both questions is yes, it will have to be produced despite presumptive work product
protection. Unless…
Step #3: Would the material reveal the mental impressions, conclusions, opinions, or legal
theories of counsel?
If yes, it will be protected from discovery in almost all cases, despite surviving Steps #1 and
#2.
Wide Open Discovery vs. Underlying Trial Process & Adversary System
Balance: You can get facts from other side, but cant get docs containing these facts that were prepared or
obtained by Attny/representative
Impeachment: Discovery of evidence for impeachment purposes can give a view of a party’s chances and
encourage settlement, but can also undermine the principles of the WP doctrine. It is likely that the party
already knows/has an opportunity to know these facts.
Written Depositions Rule 31
 Cheaper, rarely used
 Useful for easy/simple questions like document authentication
 Person giving deposition reads all questions and deponent answers
 Drawback: Have to frame questions without knowing answers so it may be
hard to pin down a witness
Interrogatories: Deponent can answer questions with attorney. Simple and inexpensive. Rule 33.
 Answers not binding because must be answered before all info available in
some cases. If there are contradictions between pieces of evidence the jury
must resolve the conflicts.
 Parties have no duty to investigate facts beyond their control, however parties
must dutifully investigate matters within their control (unlike in a deposition
where deponent can just answer from personal knowledge)
 Only available for parties.
  Scope of discovery is much broader than during a deposition. Only
impermissible questions are those of pure law. Legal contentions are ok.
o Pure Law>>Legal Contentions>>Mixed<<Factual
Contentions<<Pure Fact
 Advantages & Disadvantages of Interrogatories:
o Advantages:
o Can be used to narrow the issues
o Best form of discovery for gathering info on opponent’s contentions
o Can force responders to prepare/do research, whereas in deposition
the opponents are under no obligation to be cooperative and are only
expected to give answers based on their own present knowledge
o Disadvantages:
o Opponents are fully apprised of all questions so they have time to
ponder their answers
 Rule 33d provides that a party can invite the other party to search through the provided info
themselves in situations when the burden of searching is the same for each party. But even in this case
a party might not do so because they wont want the other party rooting around in their records.
o If inviting the other party to search themselves, you must identify the nature and organization
of the records sufficiently to allow the requesting party to “locate and identify the records as
readily as the responding party could.”
Rule 36 Admissions:
Least used device, in part because of the success of other devices. Require a yes/no answer. Lawyers might
realize that this wont work and opponents will be evasive. Admissions are more useful for streamlining proof
than for seeking info
Scope: a party may serve on any other party a written request to admit, for purposes of the pending action only,
the truth of any matters within the scope of Rule 26(b)(1) relating to:
o Facts, the application of law to fact, or opinions about either
o The genuineness of any described documents
Production of Documents/Tangible Things Rule 34:
 Scope: a party may serve on any party a request within the scope of Rule 26(b) to produce and permit
the requesting party or its representative to inspect, copy, test, or sample any:
o Designated documents or electronically stored information
o Designated tangible things
o Permit entry onto designated land or other property so that the requesting party may inspect,
measure, take pictures, etc.
 Can be very expensive and burdensome to weed through
 Costs remain with those who incurred them (pay-your-own system). Arguments have been made for
cost shifting because of externalities imposed by requesting party. But cost shifting to requesting party
may discourage poor parties from using discovery.
Physical and Mental Examinations: Rule 35
 Parties must obtain a court order for a physical or mental examination, which will only be granted if
there is good cause and the physical or mental condition is in controversy
Supplementing Disclosures and Discovery responses: Party has a duty to supplement disclosures under
26(e) and responses under 33, 34, and 36 if the party learns that they are in some material respect incomplete
or incorrect, unless the other parties are aware of the additional information.
Other general matters:
o Supervision of discovery and sanctions (26(g)&37). Signature required on every
disclosure/request/response/objection certifying that the disclosure is complete, correct, and not
imposed for an improper purpose. If the certification violates this rule the court must impose sanctions
that could be an order to pay reasonable expenses, including attorney’s fees caused by the violation
o Only Rule 36 admissions are binding
Pre-trial Conferences: Rule 16
Purposes:
1) Expediting disposition of the action
2) Establishing early and continuing control so that the case will not be protracted because of lack of
management
3) Discouraging wasteful pretrial activities
4) Improving the quality of the trial through more thorough preparation
5) Facilitating settlement
Original rule: simple. Practice of conferences was very informal, uncomplicated, noncoercive, and nonbinding.
Modern Rule:
o Judge is more a case manager than a facilitator
o Practice varies by case and also by location.
o Disagreement about appropriate degree of coercion/activism wrt settlement, discovery.
o Identiseal: Attny didn’t conduct discovery (maybe costs outweighed the benefits) and the
judge ordered him to do so. Too much compulsion? Court said yes (1970s)
o Increased Activism pros/cons:
o Pro: More orderly & efficient trial
o Con: Undermines neutrality and the traditional idea that parties are in control of discovery-
not judge.
 Judge may appear to be non-neutral. Imagine if judge had already told you that you
had a weak case, or if you refused suggested discovery.
o 16(d)&(e) dictate that a conference will culminate in an order that controls the subsequent course of
the action unless modified
o Tension between freezing things and allowing amendments
Resolution Without a Trial
Dismissal for Failure to State a Claim & Summary Judgment
12(b)(6)>>12(f)>>12(c)>>56 Fuller Evidentiary record as we go along. By time of 56 the court has access to
pleadings and discovery.
o All 4 functions employ same standard: Is the movant entitled to judgment as a matter of law?
Differences between 12(b)(6) & 12(c):
1) Timing. 12(b)(6) can be made even before an answer, 12(c) comes after answer
2) State of record: 12(c) court can look at both complaint and answer
12(f) is an analogous attack on D’s answer as 12(b)(6) attack on P’s complaint and answer. 12(f) is only partial
relief though, while 12(c) can end the case. 12(f) is rarely used and is a cumbersome relic.
Rule 12(c): Motion for judgment on the pleadings. Occurs after the pleadings are closed-but early enough not
to delay trial-a party.
1. Either party may move after the close of the pleading
2. Moving party admits adversary’s factual allegations
3. Movant’s allegations not taken as true unless adversary’s pleading has admitted them
4. Motion attacks legal sufficiency of adversary’s position
5. If party submits and court considers matters outside the pleadings, the motion is treated as a motion
for summary judgment under Rule 56
Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted. The “wrong” that the plaintiff
describes in her complaint is not recognized as a violation of any legal rights or as a legal wrong entitling the
plaintiff to compensation.
o Deals only with the legal sufficiency of an allegation, not with whether the allegations are true.
Rule 56: Motion for summary judgment. Designed to allow early resolution of cases in which the plaintiff
meets the minimal burden to plead the elements of a compensable claim, but cannot prove one or more of the
elements.
1. Purpose: to end the litigation where there are no disputed factual issues and one of the parties is
entitled to judgment on the law
2. Timing: May be filed at any time until 30 days after close of all discovery
3. Standard: Movant must show “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law”
4. Usually supported with materials (such as affidavits or products of discovery) but need not be
5. Party must support its position that a genuine factual dispute does or does not exist by citing to
particular materials in the record
o Not meant to try the facts, but only to determine whether there are genuinely contested issues of
material fact.
o American Airlines v. Ulen: Holding: plane flew too low, SJ for Ulen. Was improper for judge to
grant motion for SJ because AA had its own story. Accident could have occurred because of a
storm.
 Practical Problem in granting SJ on the issue of negligence in this case: cost time of
app court in deciding if grant was correct and created a risk that there would need
to be a second trial if the app court reversed the judgment.
o If a party moves for summary judgment and properly supports the motion with admissible evidence,
the opposing party must respond with countervailing evidence in order to avoid the entry of judgment
against him.
 o Not often granted in negligence cases because there is often a dispute about the legal consequences of
what happened.
Plaintiff must aggressively develop their evidence. If he doesn’t, he may lose, not because his claim lacks merit,
but because he has not yet gathered the evidence necessary to prove it.
 Plaintiffs in this position will often have recourse to Rule 56(d), which allows the
court to grant continuances to allow the opposing party to develop his case.
o Scott v. Harris: Police caused a crash while stopping a speeder. Court viewed a video of the chase and
determined that the Plaintiff’s actions posed an imminent risk of harm substantial enough to justify
police conduct.
o Court stepped in to encourage use of summary judgment as another way for judges to short-
circuit litigation, with the court taking a very activist role in drawing inferences from the
record in order to reverse a denial of summary judgment.
Provisional Remedies:
Justification: to prevent irreparable harm or to preserve the status quo until there can be a decision on the
merits of the dispute.
Legal remedies: pre-judgment remedies designed to secure P’s ability to collect on judgment. (Rule 64)
Equitable remedies: ordered by court to require party to do/refrain from doing an act. Injunction/Temporary
Restraining Order
Rule 65 Temporary Restraining Order/Preliminary Injunction:
TRO: Must be of short duration & for emergencies.
o Due process concerns. Hallmarks of DP: opportunity to be heard & notice. Both may be missing.
Preliminary Injunction: 5-factor test to determine if appropriate:
1) Whether P will be irreparably harmed if PI is denied
American Hospital Supply: Damages would have been to reputation, which would be difficult to
quantify and compensate with money. Could not have been made whole again through a legal remedy
2) Whether P has an adequate remedy at law
3) Whether harm to P if PI denied will exceed harm to D if granted
4) Whether P is reasonably likely to prevail at trial
5) Whether public interest will be affected one way or other
2nd & 7th Circuit Approaches to Granting PIs:
2nd: Compare the likelihood of success & balance of harms. Strong showing on one factor will compensate
for weaker showing on other.
7th: Similar sliding scale approach. Has become dominant approach.
Posner approach for Granting PIs: Minimize error of granting/not granting injunction
P*H(p)>(1-P)*H(d): % chance of P success on merits*Harm to P of not granting injunction > % chance of D
success on merits*Harm to D of granting
o Issue: P who is only 51% likely to win is able to get a remedy (PI: equitable remedy) that it
couldn’t get once there had been a full trial on merits
Posner vs. Swygert:
o Swygert: Equity is all about discretion. This formula creates a false impression of the
quantifiable nature of the factors & that the court can reach a “correct” decision. There is no
right answer because no one has a right to an equitable remedy. This is changing the law!
o Posner: Judges should be constrained by rules and shouldn’t enjoy equitable discretion.
Trial
Jury
Are 12 person juries required? Represent community vs. Remain manageable
Colgrove: P claimed that a jury of 6 for civil cases violated the 7 th amendment.
Majority: Framers intent was to preserve the right to a trial by jury and they weren’t concerned with the
characteristics.
 The purpose of a jury is a fair, equitable resolution and performance is not a function of size & 6-
person jury is large enough to facilitate group deliberation and the likelihood of obtaining a
representative cross section of the community.
 Smaller jury also might be more efficient and less costly
Dissent: The majority provided no principled basis upon which to base conclusion that 6 is ok. Their line is
arbitrary. Potential for slippery slope and erosion of jury right. If we are going to be arbitrary we should stick
with the traditional understanding of 12, which was all the framers ever knew and has been the size for
centuries. Maybe they didn’t address size because there wasn’t even an argument and everyone just knew 12
was the size.
 This argument doesn’t mean we should also stick to 12 white men like the framers envisioned, because
we have principled basis for departing from this tradition
Pros of 12-person jury
 More likely to produce a hung jury (dissenters are more likely to gain allies & become entrenched)
which might be good to promote fairness even if it isn’t efficient.
 Increase representative quality
 Less easily dominated by aggressive jurors
 More opinions & more likely to remember details
Jury Selection Challenges: Peremptory & For Cause
For Cause: Judge has to agree with your reasons for excusal
Peremptory: Judge doesn’t have to agree and party doesn’t have to explain
Pros & Cons of Challenges:
Values of Challenges: Party feels like they’re participating in the selection process & can exclude jurors they
think may be biased
Arguments against Challenges: Inefficiency, stereotyping (even though there are laws against discriminatory
exclusions like Batson challenge, they don’t work well in practice because someone can just say he made the
exclusion because of facial hair or something race-neutral), can be used to pick a biased jury rather than an
unbiased on.
Burden of Proof: ordinarily on P, but might be on D if there is no dispute in evidence and D has an affirmative
defense
Rules 50(a) & 52(c): Motion for judgment as a matter of law
 50(a): Requires that a party has been fully heard on the issue. Judge merely decides if P has met burden
of production. Motion for the judge to take the case away from the jury.
 52(c): Less stringent standard for D to meet because here the judge is the trier of fact
Rules of Evidence
Exclusionary Rules:
1) Competency: concerned with reliability of evidence
 Can the party harmed if a judge wrongly excludes a witness as incompetent appeal? YES
 Can the party harmed if the judge wrongly admits an incompetent witness appeal? YES. For
both competency answers, litigation interests have been affected and the jury wasn’t
allowed to hear evidence it should have been able to.
2) Privilege: foster social policies extrinsic to courtroom. Can obstruct the search for truth
 Same Q as above for excluding unprivileged info? YES. Same litigation interests as above
 Same Q as above for admitting privileged info? NO. Person adversely harmed is the holder of
the privilege. P’s litigation interests have not been harmed b/c jury received a fuller
disclosure than P wanted. Not a legitimate litigation interest.
3) Hearsay: normally excluded because of preference for testimony under oath in presence of trier of fact
& subject to cross-examination so memory, perception, etc. can be tested. But not all hearsay is
unreliable.
Ex. P can use Testimony of assistant physician that he heard nurse tell doctor the sponge count didn’t
come out right w/o running afoul of hearsay if it’s used to establish that the doctor was warned. For
this purpose we don’t care about nurse’s memory, perception, etc.
o Nurse’s statement doesn’t have to be true, assistant physician’s does. But he is on
the stand so his memory; perception, etc. can be tested.
 If judge admits evidence that D objects to, D can ask for a limiting instruction from judge to jury telling
them to only use the testimony to determine that doctor was warned, not that the sponge count didn’t
come out right.
Hearsay Exceptions: Courts more lenient under 803 about admitting hearsay than under common law
1) Dying Declaration 804(b)(2): statement made by declarant while believing death was imminent
about the cause or circumstances of his death
2) Declaration Against Interest 804(b)(3): Reasonable person in declarant’s position would have made
statement only if the person believed it to be true. So contrary to declarant’s propriety or pecuniary
interest. Can be uttered by anyone. Declarant must be unavailable.
3) Admissions: Out-of-court statements by a party or the party’s representative offered by an opponent
as evidence of their content. Need not be against interest. Availability of declarant is immaterial.
4) Res Gestae 803(2): Excited Utterance. Statement relating to a startling event or condition, made while
the declarant was under the stress of excitement that caused it.
o Policy: Rationale: Startling event has suspended person’s ability to fabricate/lie. Criticism:
startling event could have distorted their power of judgment
Multiple Hearsay 805: Each level must come within an exception
Ex. In a civil wrongful-death action brought in federal court by X’s wife against K, plaintiff calls W to testify that
W saw X and his wife walking together, that X fell, that W ran over, that X was then dead, and that W heard X’s
wife cry, “X just groaned that K wasn’t joking telling him that K had poisoned him.” Can the quoted testimony
come in, over objection?
1) K told X that he poisoned X. *Admission
2) X told wife “K said he poisoned X” *Dying Declaration
3) W heard wife say ^ *Res Gestae
4) W statement: not hearsay because he’s on the witness stand
Remote, Confusing, Prejudicial Evidence: Even relevant evidence may be excluded if probative value
outweighed by prejudice, misleading jury or waste of time
 Ex. Absence of prior accidents not probative that conditions were safe & also might confuse jury. Jury
might draw wrong inference (Handel: police officer dragged by train)
 Policy: Evidence of liability insurance, repairs, and settlement negotiations also not admissible b/c
highly prejudicial & low probative value related to what happened
Rule 51: Jury Instructions
Objections: A party who objects to an instruction or the failure to give an instruction must do so on the record,
stating distinctly the matter objected to and the grounds for the objection.
o Policy: Gives TC chance to fix error before it’s too late & avoid unnecessary new trial
o Appeal rights not lost if party fails to make an objection if the court has issued a definitive
ruling on the record
 Plain Error Review -appellate court may apply plain error review if the objection
was not preserved, and if the error affects substantial rights, as prescribed by 51d2.
 According to the advisory committee notes, plain error review is proper when 1)
there is an error 2) that is plain 3) that affects substantial rights and 4) affects the
fairness, integrity, or public reputation of the judicial proceeding.
Verdicts
 General: One conclusion “The jury find for the defendant”
 Special: Jury pronounces on the facts but does not draw ultimate inference of guilt or innocence
Rules 50(a)&(b): Motion for Judgment as a Matter of Law & Renewed Motion for Judgment as Matter of Law
If party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not
have a legally sufficient evidentiary basis to find for the party on that issue, the court may resolve the issue
against the party and grant motion
50(a): Requirements:
1) Must be made before case submitted to jury
2) Must state legal and factual basis of motion
o Policy: Allows opponent to fix deficiencies if it can. These will come up eventually anyway.
50(a) vs. Summary Judgment
Theoretically the same, only practically different. By the time of 50(a) there has been a more effective airing of
the evidence, so court will arguably be more likely to grant relief because we are further along continuum and
can be surer of decision. Judge may be worried about prematurely interfering with SJ.
 On the other hand, fact that the case has made it to 50(a) indicates that the opponent has a real case, so
it may be harder to get motion
12(b)(6) (Just complaint) >>> 12(c) (Complaint & Answer) >>> 56 (Products of discovery) >>> 50(a) (Full trial
on merits) >>> 50(b) (Full trial + Verdict)
50(b): Must be made within 28 days of verdict, party must first have moved under 50(a)
 Legal fiction that court is merely ruling on the 50(a) motion and not “reexamining” the jury decision,
which would be unconstitutional.
Scintilla of Evidence Test vs. Substantial Evidence Test:
 Scintilla of Evidence Test: if there is so much as “a mere gleam, glimmer, spark, the least particle or the
smallest trace of evidence” supporting an inference, then the issue must be submitted to the jury and a
motion for SJ or 50(b) must be denied
 Substantial Evidence Test the mere existence of a scintilla of evidence in support of the plaintiff's
position will be insufficient; there must be evidence on which the jury reasonably could find for the
plaintiff
Reasons for Granting 50(b) motion after denying 50(a):
 Judge wasn’t certain and wanted more time to reflect. Jury may reach same conclusion so judge will
have avoided appearance of intrusion.
 If judge erroneously grants 50(b) the jury’s verdict can simply be re-entered, whereas if the judge
erroneously grants 50(a) there will need to be a new trial
Why ever grant 50(a) motions? Judicial economy, don’t want to encourage reckless jury decisions, injury to
system of setting aside jury verdicts after they meet and deliberate for hours
Costs: Normally awarded to the prevailing party as part of the judgment. Ordinarily cannot include attorney fees
in US.
Motion for New Trial (59): May be granted if verdict is against the weight of the evidence, irregularity in trial
or jury failing to follow instructions, judge mistake, new evidence
 “Against the weight of the evidence”: Balancing between usurping power of jury & not wanting
unjust decisions to stand
o Argument that judge hasn’t really usurped jury power because the new trial will be heard by
another jury
 Theoretical Differences between 59 b/c of Against Weight of Evidence and 50(b)
1) With 59 the court has discretion and the App. Court won’t reverse the DC’s decision on new
trial motion. In 50(b) the court doesn’t have discretion because it’s ruling as a matter of law
2) With 59 the court can make credibility judgments and weigh the evidence for itself unlike in
50(a) & (b) where reviewing evidence is left to the jury
 Practical Differences between 59 b/c of Against Weight of Evidence and 50(b)
o 50(b) marks the end of the case and the party can appeal, whereas 59 starts a new trial
immediately and cannot be appealed
Is there a limit on the # of times a new trial can be ordered? No limit on # of new trial grants; however, limitless
new trials may violate due process
50(c): Conditional Ruling on a motion for a new trial. Denial of a motion for new trial results in a judgment
that is final and appealable. The grant of such a motion does not. In order to avoid piecemeal appeals, the federal
rules provide that if a new trial motion is granted, but only as an alternative to the grant of a JNOV motion, then
both rulings may be appealed immediately. (FRCP 50(c)(1).) If a new trial is granted and the JNOV motion is
denied, then the case must proceed to a new trial, and the denial of the JNOV cannot be reviewed until after the
new trial has concluded.
Judgments
Relief will be the amount deserved, even if this amount was not requested in the demand for relief
 Exception: relief under default cannot exceed the requested amount. This is because D may have made
the decision to default understanding the demanded relief (maybe litigation costs weren’t worth it)
Declaratory Judgment: legal determination of a court that resolves legal uncertainty for the litigants
2201(a): must be an actual controversy
 Keeps courts out of states’ domain and other branches’ law-making business
 Courts will perform better if they decide based on focused facts presented by interested adversaries
 Judicial economy
Purpose of DJ: Avoid accrual of avoidable damages
American Machine: D had threatened suit over patent infringement, P wants DJ to avoid getting sued. Basis of
controversy was contingent upon P terminating contract, but App. Court granted DJ motion b/c threat
constituted controversy.
Prasco: P also worried about being sued for patent infringement, but hadn’t actually been threatened by D, so
no actual controversy. Claimed “paralyzing uncertainty” from fear of lawsuit. DJ denied, basic standard not
satisfied.
 Basic Standard of Controversy: Whether the facts alleged, under all the circumstances, show that
there is a substantial controversy, between parties having adverse legal interests, of a sufficient
immediacy and reality to warrant the issuance of a declaratory judgment.
o There can be no controversy without a showing that this threat was real, imminent, and
traceable to defendants.
 Defendants-appellees did not accuse Prasco of infringement or asserted any rights to Oscion, nor did
they take any actions, which implied such claims. Instead, what was merely brought was Prasco’s
allegation that its product does not infringe the defendants’ patents.
Boyd: Union wants DJ that domiciled aliens returning back from summer work in Alaska wont be treated as
aliens entering US for 1st time and be excludable.
 Holding: no controversy because gov. hasn’t threatened the union with applying the statute in the
manner alleged, so this case is more like Prasco than American Machine.
 Court showed deference to democratically enacted laws.
 Union had to continue pursuing this case even though the government eventually did enact the statute
against the workers by the time of the SC decision and they could have started another case because if
they didn’t continue they would be stuck with the DC decision that there was no controversy.
Evers: Another request to declare an act of the legislature unconstitutional (bus segregation). Evers boarded the
bus and was told to move seats or leave, and he left the bus.
 Under Boyd: He would have had to be arrested and then challenge the statute at trial.
 But Evers was deemed an actual controversy.
 o Distinguished from Boyd: Here there is a recurring, more immediate threat (he wants to use
the bus everyday and will have to deal with this statute). The authorities have applied and
intend to continue to apply the statute.
o Also maybe court just realized that Boyd was wrong and this difference didn’t matter.
Enforcement (69): Does not itself create any procedures on enforcement. Merely asserts that federal procedure
will adopt state procedures.
Appeals
Policy: What are the reasons for a system of appeals?
1. Correctness. Fairness for parties of having more than one trial, judges make mistakes & have egos. The
appellate court is removed from the emotions of the original trial.
2. Institutional: ensures consistency in judicial decision making throughout the district. SC review really
only addresses this reason
Final Decision Rule (1291): Appellate review can only take place after a final decision (a decision that ends
litigation on the merits and leaves nothing else for the DC to do besides execute judgment).
 Many matters aren’t immediately appealable and have to wait until after final judgment
 Dilly: Court still had to decide damages, so the SJ wasn’t the final decision
o If the D had won it would have been a FD because D’s aren’t awarded damages.
 Is the Final Decision Rule a good one?
o NO: not very efficient because a case may have to go through an entire appeal process just to
end up exactly where they would have been if rule didn’t exist (appeal on interlocutory
decision could quickly resolve the issue)
o YES: frequent appeals would slow down decisions on merits/drag out case, party harmed by
interlocutory decisions might win the case--rendering these issues irrelevant, and the
authority of the judge to correct matters might be undermined.
Exceptions to Final Decision Rule
1. 1292(b): DC must certify that the matter is important and deserves immediate review and App. Court
must agree to take case
2. 54(b): Partial SJ. Cases may be very complicated and have multiple parties and issues, so it seems
unfair to delay appeal on one part until the entire matter has been decided. Once again DC & App
courts must agree on importance of matter and App court must agree to take case.
3. 1292(a): Injunctions. Status quo outside of courtroom may change in a way that may not be
compensable. Additionally, in courts of equity interlocutory appeals were allowed (carry over)
4. 1292(e): SC may prescribe rules to provide for an appeal
5. Mandamus: App Court can order DC to carry out a duty. Reserved for extremely important matters.
6. Contempt of non-party
Court may erroneously hear a case if no party raises an issue of jurisdiction.
Stay of Enforcement Pending Appeals:
Test of whether to grant stay (Long: Baltimore juvenile age statute repealed):
1. Petitioner will likely prevail on the merits
2. He will suffer irreparable harm if the stay is denied
3. Other parties will not be substantially harmed by the stay
4. Public interest will be served by granting the stay
Supreme Court Appeals (1254): Almost always discretionary and not meant so much to correct errors as to
further institutional values. Either side can seek certiorari any time after case has reached App court.

Jurisdiction
1. Exclusive vs. Concurrent Jurisdiction
 Whether Fed court has sole authority to adjudicate or shares with state courts
 1338: patents, exclusive control
 Housman: Presumptive that Congress intended concurrent unless specified otherwise
2. Original vs. Appellate Jurisdiction
 When case can “originate” in DC. Most original jurisdiction conferred on DCs
3. General vs. Limited Jurisdiction
 All states have a court of general J which can hear any matter
 Limited: specialized (divorce, traffic) federal DC: limited
Article III Cases & Controversies: Powers of Federal Judiciary
 Subject Matter Jurisdiction can and should be raised at any time by any party or the court. Preserved
for Federalism reasons: ensure proper balance between federal gov. and states
 Not self-executed. Congress has to confer jurisdiction on federal courts for the 9 matters listed below
 o Congress hasn’t conferred all of Federal Q Jurisdiction. 1331 has narrower reach than Article
III
Cases (nature of claim):
1. Federal Q
2. Foreign Relations
3. Admiralty
Controversies:
4. US party
5. State A vs. State B
6. Citizen of State A vs. State B
 Narrowed by 11th Amend. Court has interpreted: no one can sue state besides other state,
US, or foreign country unless it waves sovereign immunity. Cases against state policies
are against officials.
7. Diversity
8. Land Grant
9. Foreign party vs. US party
Federal Question: Mottley: The Mottleys got a lifetime pass on the railroad, but later Congress banned such free
passes and the railroad rescinded the pass. Mottleys claimed deprivation of rights under 5 th Amend
1. Does the statute make it unlawful to perform contract?
2. Whether this would violate 5th Amend
Holding: No need to answer because lower court didn’t have Jurisdiction under 1331 because there
was no Federal Question because it wasn’t a well-pleaded complaint.
 Well Pleaded Complaint: Federal Q must appear on the face of properly pleaded
complaint. The federal question was not part of the claim, but rather part of the
anticipated defense. Claim was breach of Contract.
 Q6: What if railroad wanted declaratory judgment that it could stop providing the
tickets? Is there jurisdiction for this lawsuit?
o Mottley Majority: Must look at hypothetical dispute and ask whether that comes
within Well Pleaded Complaint Rule.
 What is the coercive action that could be brought to resolve the
dispute w/o declaratory judgment? Breach of K action brought by
Mottleys. No Jurisdiction for this action because violates Well Pleaded
Complaint Rule, so no Jurisdiction for the declaratory judgment.
o Policy: Rationale for WPC:
 Consistent with rule that court should be able to decide at outset
whether it has jurisdiction and not have to wait for the defendant’s
answer
 Don’t want P held to defense that might not come about: A good
lawyer can make a lot of different federal arguments that the defense
could make.  But the other side might not make that argument.  In fact,
sometimes they will strategically not make that argument.
 Court assured it has power to order D to respond to complaint
 It’s an efficiency rule!  You get tons of cases filed every day in federal
court, and we need a good solid rule to be able to tell, from the outset,
whether or not we have jurisdiction.  We don’t have to have the rule
that way, but by having things run this way it will make it easier for
the court and for the litigants, once they learn the rule.
 Federal Question: Article III vs. 1331
 The language in the Constitution and in 1331 is the same.  They both say “arising
under”.  But what the Supreme Court tells us is that this phrase doesn’t mean the same
thing in these two documents!  How come?
o 1331: The district courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United States
o Article III: 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 -
o Under the statute, the federal question must “arise under” a well-pleaded
complaint.  You sort of read “well-pleaded complaint” into the statute.  This is
what allows the Mottleys’ state case to ultimately be heard on appeal by the
Supreme Court.
  Think of two concentric circles.  The Mottleys’ case falls under
Article III, which means that the Supreme Court can hear it.  However,
it does not fall under 28 U.S.C. § 1331 (or the contemporary
equivalent), therefore, the lower federal courts do not have subject
matter jurisdiction. Is this madness?
 How can we justify the Supreme Court having power over the Mottleys’ case on appeal
from state court, but not on appeal from federal court?
o Could Congress provide for original federal jurisdiction over the Mottleys’ claim? 
Sure!  We could make the statutory limits coequal to the constitutional limits.
Diversity Jurisdiction
Article III: controversies between citizens of different states
 Policy: rationale: prevent prejudice against outsiders. This might be an outdated concern.
1332(a)(c)(e)
1332(a)(2): No div. J between citizens of state and a foreign citizen domiciled in same state.
 Policy: rationale: less of fear of prejudice/local bias
State Citizenship:
1. US citizen
2. Domiciled in state Y
Domicile: residence in state with present intention to remain permanently or indefinitely
 Baker v. Keck: Did his move to OK constitute a change in domicile?
o Looked at economic factors, voting, declaration
o Participation in the economic activity, civic and political engagement, and declared intent to
remain.
 Interpretation of 1332, not necessary requirement of Article III
Corporation Citizenship: corporation is citizen of each and every state/foreign country in which it’s
incorporated and also of any place in which it has its principal place of business
 Principal Place of Business: two approaches
1. *Nerve center: where corporation carries out major part of management activities
o Chosen because it’s an easier test to apply (for example how would you determine where the
ppb of an airline is by management test?) J rules should be simple to apply so we can be
assured court has J
ML&B is an LLP and is therefore considered a citizen of the domicile of each of its members
Removal: 1441 (a) & (b)
1441(b)(2) only applies to diversity actions (1332), so when case is about federal Q or trademarks this issue is
irrelevant.
 Rationale for no removal: normally we want to honor P’s choice of forum, and here there is no concern
about local bias.
 Under Mottley there was no Fed Q because violated WPC, so no original J
1257: SC review of state court decisions.
 SC can only review “final decisions” of highest state courts.
o Policy: rationale: federalism concerns & want to give state courts the chance to correct their
own errors
Selection of Proper Forum
Court must have:
1. SMJ: power of court to adjudicate particular dispute/claim
2. Territorial J: power of court to adjudicate wrt particular person/thing. (1391)
o Constitutional restriction based on due process clause
o Geographic connection between court and party
 Defendant’s being served with process in the sovereign’s territory
 Being domiciled there
 Consenting to suit there
 Committing certain acts there, such as a tort
o 4(k)(1)(A): fed courts’ reach restricted by reach of state court. Fairness concerns. Want to
make sure there is a sufficient connection between the court and the party
3. Venue: in which DC can case be brought?
o Voluntary restriction on reach of sovereign’s power
o How to distribute power amongst 99 DCs
4. Service of Process: Mechanical. Methods of assertion of J. Gives notice and subjects person to
adjudicatory authority of the sovereign
Personal jurisdiction is the authority over a person, regardless of their location.
Territorial jurisdiction is the authority confined to a bounded space, including all those present therein, and
events that occur there.
Subject Matter jurisdiction is the authority over the subject of the legal questions involved in the case.
Multiple Parties and Multiple Claims
1. A(NY) + B(OH) v. C(MO) + D(NY)
No complete diversity: exists only if each P could sue each D in a different action (restriction on 1332)
o Exceptions: more than 75 people in accident (only need 1 person to be diverse)
What does “Citizens” mean? Does 1332 only refer to plural? We’re supposed to interpret them literally, so
maybe
 But there is an underlying policy of allowing citizens to sue foreign parties, so there is an argument that
in light of the ambiguity we should interpret the statute in a way that would align with this policy
2. B(OR) + A(Ger) v. C(NY) + D(Nigeria)
Controversial under 1332(a)(3) because of possible lack of complete diversity
o Some think it’s proper under (a)(3) because the requirement of complete diversity is a
statutory restriction, not constitutional. Also (a)(3) didn’t exist when complete diversity
concept was made up. (a)(3) refers to the need for diversity between US citizens and the
foreigners are additional parties. Congressional history indicates that this approach is better
and most states allow this as DJ
3. A(OR) + B(Ger) v. C(NY)
Ok under (a)(3)
4. A(NY) + B(Fra) v. C(Fra)
Not ok under (a)(3) because no citizens of different states on either side. Doesn’t seem to make sense
with policy. (Also doesn’t fall under (a)(2) because there is only 1 US citizen and (a)(2) is for foreign
citizen on one side of litigation)
5. Corporation A(incorporated in NY and ppb in France) v. C(Ger) + D(NJ)
Court will read to defeat DJ, so no DJ here
Removal: 1441 & 1446 all properly joined and served Ds must agree to removal. True regardless of whether
case is over DJ or FQ
6. A(CA) v. B(CA) + C(CT) Removable if B & C agree?
Depends on if this is a FQ matter b/c then 1446(2) wouldn’t apply.
Upon deciding removal, court can realign parties in keeping with their interests in case to make the case
removable (if A and B have same interests, court can realign them)
Venue: 1391
If under 1391(b)(3) and have to hold case in VT the court may have trouble obtaining PJ over the other D from
NH
 But if the D works in VT he could be served with process there and court would have PJ over him and
action would be OK under (b)(3) as PJ venue requirements would be met
7. A(ED of NY) v. B(CA, resides in Fra), claim arose in France where is venue proper?
1391(c): residency: when D is not resident of US he may be sued in any district, so the venue
requirement is in effect abolished
Joinder
Purpose: to make the adjudicatory process as efficient as possible. Decide whole dispute in one piece of
litigation.
Rule 20: permissive joinder
 Need claims to arise from common transaction/occurrence and to involve some common
question/same factual issue
Third Party Practice: 18, 13, 13(h), 20 (not 19)
Rule 14: defendant can interplead another person for indemnity (claim that other party has to pay any damages
D has to pay). Can only interplead on derivative theories of recovery.
 Ex: T v. M (+S)
o So M could not implead S to get S to pay for damages to M’s car (would be direct liability, not
derivative). M can only interplead derivatively (S has to pay for whatever M has to pay for
assuming M is liable to T)
Right to Counsel in Civil Trials
Lassiter Case: Whether indigent litigants have right to appointed counsel in civil trials.
 A lawyer could have substantially helped Abby Gail’s trial. Could have opposed hearsay, investigated.
Instead the judge played an active, biased role.
 Court used Matthews balancing test and presumption of no right to counsel in civil cases.
 Presumption: slippery slope of providing counsel for all civil cases
 o Majority: CE(cost of erroneous decision) X PE(probability of error) – DC(direct costs to gov of
affording additional procedure) > PA (presumption against counsel in civil cases)
 Dissent agreed on all terms except for inclusion of PA
 Adversary system is highly dependent on lawyers
Erie
Facts: arm taken off by train in PA
Brought action in NY Federal Court
Issue: duty of care owed to P
 PA: treated as trespasser, so duty to refrain from wanton/willful misconduct
 Federal Common Law: refrain from ordinary negligence
Swift: “laws of several states”: federal courts will only apply state statutes or local usages (long-established
customs having force of law. Controversial meaning), but not state common law
 Notion of a transcendental body of law: natural law. A body of law exists outside of any sovereign.
Role of judge was to ascertain true natural law
 Policy Reasons:
o Uniformity (hope that states would conform to the uniform federal law too)
o Superior Federal Law: more complete, accessible, and unbiased
o Historical: originally fed courts didn’t have Fed Q J, so most cases were DJ and there was a
concern that judges would just be mouthpieces of state
Reasons Erie overturned Swift:
 Scholarly contention that Swift court had misconstrued RDA and that state common law was meant to
be included in laws of several states
 Jurisprudential: judges just making stuff up (legal realist view)
 Holmes view that there is no law except as declared by sovereign (legal positivist view)
 Dream of uniformity not realized
 Forum-shopping problem: equal protection/discrimination problem. OOS Ps given advantage of
choosing forum based on where most favorable interpretation of substantive law.
 Historical changes: expansion of federal power following Civil War & Great Depression, transformation
to industrial economy, increased federal regulation of big business, more complete state law
development
 Court’s Reason: Swift reading was unconstitutional
o Reading of power to make up general common law by courts was wrong b/c Congress doesn’t
have this power—it’s a state power
Klaxon: Fed. Ct sitting in diversity must apply law of state in which it sits, including choice of law rules. So Fed Ct.
DE must apply DE state law. If DE will apply NY state law to the issue, then the Fed Ct. DE must apply NY law.
Vertical Uniformity.
Is the Klaxon Rule Good?
 Yes, on one hand because gets rid of intra-state forum shopping because P will be no better off in Fed
Ct. than in State Ct.
On the other hand, it encourages forum shopping between Fed Cts. because there is a lack of horizontal
uniformity
Why is Klaxon better than Swift?
 Disuniformity in state courts is ok within our federal system because the states have the right to
choose for selves what law will be
 Forum-shopping here is a result of federalism because states are free to have different laws
 Intra-state forum-shopping, however, was contrary to federalism principles and unnecessary
York: Issue: whether state statute of limitations must be applied in diversity cases even though in most cases has
been characterized as a matter of procedure.
 Rejection of substantive/procedure line for making choice of law decisions and introduces the
outcome-determinative test
 Outcome of litigation in federal court should be substantially the same as if it would
have been tried in state court: if the outcome is substantively the same then the
federal court can apply its own rules instead of state rules. If rule is outcome
determinative then state law applies.
Ragan, Woods, Cohen: application of outcome determinative test introduces a problem:
 No stopping point. Difficult to conceive of any rule of procedure that
wouldn’t have an effect on the outcome. This leads to deference of fed
courts to states on matters of procedure and inadvertently leads courts
back to the mechanical rules the outcome-determinative test sought to
avoid
Determining State Law
Bernhardt: action brought in VT Fed. Ct. & could apply VT or NY state law.
1) Does Fed Arbitration Act control?
 No (commerce clause concerns)
2) Can the federal court nevertheless ignore state law?
 Court applies Outcome Determinative Test: applies state law because the outcome would be
effected if there was a change from court of law to arbitration
o Troubling because essentially erases the line of substantive and procedural
(whether arbitration is procedural or substantive)
3) What is the content of VT law?
 The VT law on the books is outdated
 Court looks at more recent decisions in lower courts, movement in the legislature, and dicta
to decide what VT law is today
 “there is no later authority from the Vermont courts, that no fracture in the rules announced
in those cases has appeared in subsequent rulings or dicta, and that no legislative movement
is under way in Vermont to change the result of those cases.”
4) Which state’s law to apply?
 Klaxon vertical Q: whatever law VT state law would apply
 Remand the case
 How to decide: Federal courts must act as if P407
Presley: court was sitting in NY, so should have been looking at how NY state courts interpreted TN state law, not
TN state court’s interpretation of TN law
Question 8: should be asking how NY sc…
Procedure matters Substantive matters (common law)
Pre 1938 State law (Conformity Act) Federal Law (Swift)
Post 1938 FRCP State Law (Erie)

Byrd: Issue: conflict between federal and state on whether disputed factual elements should be submitted to
judge or jury (jury was federal practice). 3-step analysis:
1) Ask whether SC practice is so bound up in rights & duties of parties that its application of state practice
is required by federal court
 Here, the practice of sending these specific claims to juries had been historically
practical, but had no real reason & wasn’t part of the rights accorded to injured workers.
2) In addition to the federal interest in uniformity there are also affirmative countervailing considerations
(federal interest in preserving judge/jury relationship)
3) Looks at actual outcome determinative effect. Court finds that the likelihood of different results is not
strong enough to require federal jury practice to yield to state rule in interest of uniformity
Byrd Balancing Test
Court will apply state law when X(state’s interest)>Y(Fed. Interest in affirmative countervailing considerations)-
Z(Fed. Interest in uniformity)
 Purest acceptance of premise of Erie and goals of federalism
 Difficult to apply because we have no scale or way of measuring the relative weight on
the federal/state interests. Inconsistency in lower courts!
Hanna: Choice of law for service of process to executor: MA statute or FRCP 4? Answer: FRCP
 Ragan & York (about statute of limitations) are irrelevant because there are 2 sections to the MA
statute and here we’re dealing with the manner of service section
 Case would have been easy under York OD test: differences in service of process procedures wouldn’t
have affected the choice of forum, so the court would have applied FRCP 4
1) When a Federal Rule Conflicts with State Law
Erie is irrelevant when a federal rule conflicts with a state law
 Test: court uses Sibbach test and asks whether FRCP is within the scope of the REA and whether it is
constitutional
o REA: 2072
a) SC shall have the power to proscribe general rules of practice and procedure and rules of evidence for
cases in the US district courts and courts of appeals
o Does the Rule “really regulate procedure—the judicial process for enforcing rights and duties
recognized by substantive law and for justly administering remedy and redress for disregard
or infraction of them”?
b) Such rules shall not abridge, enlarge, or modify any substantive right
 Would applying the federal rule significantly modify the underlying right itself?
  Does this Rule regulate something closely bound up with the substantive claim itself?
o Congress has granted SC authority to adopt any Rule that is arguably procedural. And
Congress’ acquiescence in the Rules by failing to intercept them after promulgated for review
provides an extra dose of credibility
o Constitutional: Congress and Court have broad constitutional authority to promulgate any
Rule that is arguably procedural
 Since any FRCP can be conceived as procedural, the test insulates FRCP from attack
o Court discourages lower courts from finding FRCP unconstitutional because would effectively
then have to find that the advisory committee, SC, and Congress all erred in characterizing
rule as procedural
2) When no Federal Rule Conflicts with State Law
“Unguided Erie Decision”: rejects Byrd Balancing Test
Refined Outcome Determinative Test: Court will apply OD test, but what matters isn’t whether the outcome
would be different, but rather the underlying purposes of Erie:
1) Avoid forum-shopping
2) Ensure equitable administration of laws

When a Federal Statute Conflicts with State Law

Statute valid if it regulates an issue that… “while falling in the uncertain area between substance and procedure,
is rationally capable of classification as either”
Szantay: plane crashed in TN and killed IL plaintiffs after plane was serviced in SC.
 Why did Ps sue in SC? Maybe Ds couldn’t be sued in any of the other states
 Whose law controls? SC Law or Fed?
Similar to Woods: MS door-closing statute: foreign corporations had to designate agent for service of process if it
wanted to sue in MS state court (rationale: if you’re going to sue our citizens in state court they have to be able
to sue you too)
 How would Woods have been decided under Hanna Tree?
o Rule 17(b) didn’t apply because MS statute didn’t deal with jural capacity, but rather imposed
further restrictions upon entities even if they could sue/be sued. So FRCP on point.
o Look at Erie twin aims:
 Forum Shopping: ignoring state law would result in FS because doors to MS state
court would be shut to foreign corporations so they would choose Fed Ct.
 Inequitable administration: Also yes.
 So apply state law
Szantay: identical forum-shopping issue, but here court applied Fed law and seemed to apply Byrd (affirmative
countervailing federal considerations) instead of Hanna…
 Why? Federalism interests: Szantay had important federal interests & weak state interests (Woods was
opposite) that Hanna doesn’t take into account
Effect on Hanna: Szantay suggests that lower courts embark on challenges of Hanna because the rule doesn’t
take fed/state interests into account.
Day & Zimmerman: TX choice of law rule was to apply to rule of the place of injury (would have been Cambodia).
So under Klaxon the court should have applied Cambodia.
 But looking at Federal interest the lower court applied TX law instead of Cambodia
 SC reversed and reaffirmed Klaxon
 Klaxon is also insensitive to state/fed interests
Walker/Burlington Northern: How broadly should the courts read the FRCPs? Walker: narrowly, BN: broad
40:00
Walker: a clear statement principle for interpreting scope of the Federal Rules in diversity actions
That is: if the Federal Rules seems to conflict with a state procedural rule, the plain language of the
Federal Rule would
Gasperini: New York state law: appellate courts are empowered to review the size of jury verdicts and to order
new trials when the jury’s award deviates materially from what would be reasonable compensation. Seventh
Amendment: right of trial by jury shall be preserved, and no fact tried by a jury, shall otherwise be re-examined
in any court of the United States.
Both State & Fed Interests High

Issues:
1) Whether state or fed standard applies at App Level
2) Whether state or fed standard applies at TC level
Byrd & York still seem to control in situations where there is no federal statute and federal judge-made law
applies.
 Two possible Byrd Interpretations:
1) Substantive law issues: state law controls, but procedural issues: engage in Byrd Balancing
2) Engage in Byrd Balancing regardless of whether sub/pro issue involved
Holding: App court should apply Abuse of Discretion and TC should apply Deviates Materially even though court
acknowledges underlying policy is substantive
 Court uses Hanna test & twin aims of Erie test to decide whether TC should use Deviates Materially or
Shocks Consc. & finds that using the Shocks Consc. Test would have a forum-shopping effect
 Situation in which a state statute may be both substantive and procedural in nature.
o In this case, under state law, the standard for granting a new trial was held to be substantive
in nature.
o Alternatively, the requirement that the appellate court consider whether a new trial shall be
ordered was found to be procedural in nature.
o As a result, a federal trial court, faced with such a factual situation, should determine whether
a new trial should be ordered, applying the state standard, rather than an appellate court
State Law (statute) Fed Law Gasperini/Erie
Trial Court Deviates Materially Shocks Consc. Deviates Materially
App. Court Deviates Materially (De Abuse of Discretion Abuse of Discretion
Novo Review) (Deference to TC’s
determination)
State Interests: Whether to use Byrd Balancing when substantive issue not clear. Would contradict Erie.
Gasperini ignores a state statutory command, which would have been impermissible even under Swift
Fed. Interests: Allowing judge to make Deviates Materially decision allows judge to make decisions in state
courts that it couldn’t make in fed courts
Footnote 22
Court of appeals: de novo review (decide for itself) – violates 7 th amendment
Trial court applies state standard, app. Court applies traditional federal standard (abuse of discretion)
How to make sense of it?
What test is used?
– substance/procedural test (pose erie cases): substance in policy and procedural in allocation of role
- Outcome determinative test: trial level issue, federal court apply the “deviates materially” test
- Byrd test: appellate court issue, should apply federal abuse of discretion standard and not the state de novo
approach
Scalia: should all apply the Byrd test; disrespects 45:00
Shady Grove: courts should read FRCP “normally”. But if there is a defensible reading that will avoid a clash with
state law the court should adopt that
Role of Congress: can step in and make choice of law decision
Federal Common Law:
 Erie said no such thing, but federal courts sometime do apply fed common law
 Federalism & Separation of Powers concerns
o Congress’ sole legislative authority vs. court’s inherent power to adopt common law & need
for court to fill in holes
RDA: 2 textual arguments that it allows application of federal common law:
1) “Laws of several states” don’t apply in certain cases, so need federal law
2) “Except” clause: must be read to encompass not just express provisions, but also federal courts’
inherent power to fashion rules necessary to further interstices of statute, treaties, const.
Question 16: beginning of class
SC has applied federal common law in: ppt
Clearfield Trust: US sued Clearfield Trust over fraudulent check. Court held that federal common law governed
(delay in giving notice was not a bar to suit)
 Erie doesn’t control because this is an issue of high federal interest: US issues commercial paper on
vast scale. If state law controlled, rights & duties of US would be subject to great uncertainty
 Even where underlying claim based on state law, federal common law will control in areas of high
federal interest
o Examples: patent door closing statute, whether US bonds were due
 Whether federal common law applies or state law depends on balance of relative fed & state interests
 Erie: where state interests are sufficiently high: state law controls
Question 17: an area of high federal interest
 Clearfield: where fed interests are sufficiently high: fed common law controls
Question 18: ppt – recording (34:00) does not depend on the statute, the parties, the sources, instead, issue by
issue (not case by case)
Kimball: Whose law determines priority of liens?
 Federal common law generated to fill in gaps in statute: fed common law applies
What is the federal common law?
 Court here adopted law of state as content of fed common law
o Rationales:
1) New federal law would disrupt established commercial relationships based on state law
2) Also, no need for uniform federal law here
3) Application of state law wouldn’t frustrate purposes of federal program
4) Practical reason: state law has functioned well
5) Fed courts are also just not good at making up substantive rules like this. Courts should
undertake law-making very reluctantly (not positioned to understand all possible effects of
law like legislature is)
Illinois v. City of Milwaukee: pollution of interstate waters: high federal interest so fed common law applies
Clearfield will apply instead of Erie in areas of high/unique federal interest:
1) Admiralty
2) Validity of patents (Kinetic)
3) Involving rights & duties of US (Clearfield & Yazell)
4) Cases where US is a party
5) Federal loan programs (Kimball)
6) International relations
7) Foreign commerce (Grand Bahama)
8) Interstate disputes (Illinois v. City of Milwaukee)
Erie is not used, but courts still balance relative state & federal interests to decide on state law vs. federal
common law.
 Clearfield: courts haven’t developed mechanical rules/elaborate balancing test. Balancing done issue-
by-issue & seems ad hoc
o Ex: even if for example, the US was a party (4) court could still find state law applies if
interests higher
Reverse-Erie: to what extent must fed. law apply in state courts?
Erie: as issue becomes more procedural is it more likely court will apply federal law
Reverse Erie: excessive application of federal law
Dice: federal law applies to whether factual q of fraud decided by judge/jury
Norfolk: federal law applies to judge’s control over jury’s decision-making (jury instructions)
Reasons for excessive application of federal law in state court:
1) Most relevant cases are FELA (federal employer liability act) & congress seems to have wanted court to
interpret law to benefit employees
2) Decided when outcome-determinative was guiding principle
3) Felder: notice of claims rule prevented civil rights actions. Supremacy Clause (additional weight on
federal side in balancing test): state law pre-empted
Johnson v. Fankell: state law not pre-empted.
 Distinguished from Felder: neutral law. Also gives greater respect to state court b/c pre-emption would
have been more intrusive (intrusion into administration of state’s court system)