Personal Jurisdiction

Basic Concepts
1. Forms of Jurisdiction a. Jurisdiction in Personum i. The court serves the defendant in a case involving personal rights b. Jurisdiction in Rem i. True In Rem (Uncommon): * sues a piece of property (that is attached at the outset) to establish ownership rights of the property against the whole world c. Quasi In Rem i. Type 1: Assertion of rights to a piece of property against a certain specified person. ii. Type 2: The suit is over rights unrelated to the piece of property. The property is attached at the outset of the suit to establish jurisdiction and for the purpose of satisfying any judgments against the defendant. Notice was published. 2. Doctrine of Collateral Attack a. An out of state defendant who loses a case through default judgment (doesn¶t show up for the original proceedings) may challenge the decision in another state on the basis of lack of personal jurisdiction when the * attempts to have suit brought in that other state for enforcement of a judgment. 3. Special Appearance a. A defendant may show up to a suit and enter it as a special appearance for the sake of challenging jurisdiction. A special appearance will keep the defendant¶s presence at the suit from establishing the court¶s jurisdiction over them. 4. Full Faith and Credit a. Requires that each state respect the judgment of the courts of other states. Does not apply if the other state court lacked jurisdiction in the first place. 5. Corporations a. Corporations are treated like ³people´ b. Corporations are under the general jurisdiction of their incorporating states i. This is due to ³implied consent´ derived from the receipt of the benefits and privileges of the state or incorporation ii. This is also due to the heightened regulatory interest of the state of incorporation.

Pennoyer v Neff (#1)
1. Facts: a. M sued N for unpaid legal fees in OR. N was not a state resident but had land that was attached. Default judgment for M, N¶s land was sold to P and M collected proceeds. N sued P to establish rightful ownership of the land. 2. Framework established by Pennoyer: a. A state has personal jurisdiction over an out of state resident if one of the following is met: (1) the ( shows up in court; (2) the ( is personally served in the state; (3) ( has in state property that is attached at the outset of the suit; (4) the case affects the personal status of the resident *; (5) ( has contractually assented to an alternative service; (6) ( has appointed an in state service agent.


b. A state can also require that any out of state ( provides a mechanism for receiving process as a condition of doing business in the state. 3. Two Theoretical Bases for Pennoyer¶s Framework a. Consent: The state must retain consent of the governed b. Power: Sovereignty of the state¶s require that they have power (except as limited by the constitution) over those people and properties that are in the state. 4. Problems with Pennoyer v Neff a. Simplistic and unbending framework b. Did not work well with corporations, especially as modernization began c. Too abstract, little basis in public policy

Modern Framework For Personal Jurisdiction
Development of Minimum Contacts & Purposeful Availment
1. International Shoe v Washington (#1) a. Int¶l Shoe was incorporated in DE but had offices in MO. The company had 13 salespeople who lived in WA but filled no orders in WA and conducted no formal business in WA. WA sued in WA courts for unemployment tax for 13 employees. b. Under Pennoyer framework, no jurisdiction of WA courts because there was no in state service or attachment of property. Court found that WA had jurisdiction because Int¶l Shoe received benefits/protections of doing business in the state. 2. Test Developed by International Shoe a. Generally: i. A party must have certain minimum contacts within the state ii. Such jurisdiction cannot offend traditional notions of ³fair play and substantial justice´ b. As a Rule: i. General Jurisdiction is established when a corporation or person has continuous and systematic business dealing within the state. ii. Specific Jurisdiction is established when a corporation or person has single or isolated activities within the state AND the suit is directly related to those activities iii. No jurisdiction exists when the corporation or person has single or isolated activities within the state and the suit is unrelated to those activities c. Policy: i. Satisfaction of due process doesn¶t require physical presence; it only requires a certain amount of activity that amounts to an entities enjoyment of the benefits and protections of a state. Once these benefits and protections exist, it is not unfair to require an entity to submit to the state¶s courts. ii. Corporations give implied consent to state jurisdiction by incorporating in states or receiving benefits of doing business in those states. Implied consent is necessary to ensure that state interest in regulation is not denied. 3. Failings of International Shoe a. There is no definition of ³minimum contacts´ b. The test is vague and therefore unpredictable c. Only addresses in personam jurisdiction, does not address in rem jurisdiction d. Does not tell us if it applies only to corporations, or to individuals as well. 4. McGee & Hanson a. McGee v International Life Insurance: (#2) 2

i. Court found that a California court had jurisdiction over a Texas insurance company. The company had insured a California citizen, sending reinsurance/other forms after buying out the citizen¶s previous insurer. b. Hanson v Denckla: (#3) i. Court found that a Florida court did not have jurisdiction over a Delaware trustee. The trustee had formed a trust with decedent while she lived in Pennsylvania. She later moved to Florida. The trustee did not do business in Florida and had only sent letters there when requested to do so by the decedent. a. Differences between McGee & Hanson ii. Unilateral Activity: 1. McGee ( intentionally sent mail to * in California to solicit a new commercial relationship with that person. 2. Hanson ( only sent requested mail to a pre-existing client * in Florida, but did not intentionally solicit any commercial activities in that state. iii. State Interests: 1. McGee ( purposefully injected itself into a business relationship in the state of California, thereby evoking protection/benefit of Cali laws 2. Hanson ( did not purposefully avail itself of the privileges/benefits of Florida law. 5. International Shoe Framework After McGee & Hanson: a. General Jurisdiction is established when a corporation or person has continuous and systematic business dealing within the state. b. Specific Jurisdiction is established when a corporation or person has single or isolated activities within the state AND the suit is directly related to those activities i. The contacts within the state must be purposeful. The ( must have purposefully availed itself to the jurisdiction of the state¶s courts c. No jurisdiction exists when the corporation or person has single or isolated activities within the state and the suit is unrelated to those activities

Absorbing in rem jurisdiction
1. Shaffer v Heitner (#3) a. Facts of the case i. * sued current and former directors of Greyhound, all of whom owned stock or options in the company. There was no showing that the (s had any contacts with the state outside of their relationship to Greyhound, which was incorporated in Delaware. The court seized the stock/options of the (s in order to assert (in rem) jurisdiction over the (s. ii. The Supreme Court found that in rem jurisdiction was insufficient to establish personal jurisdiction over the (s. b. Marshall¶s Opinion i. International Shoe set forth a requirement of fair play and substantial justice for the purposes of satisfying due process. From now on, all assertions of jurisdiction must satisfy the basic tenants of the test set forth in International Shoe (effectively ending Pennoyer¶s in rem jurisdiction). ii. *Note that it is not impossible to argue purposeful availment of Delaware laws by the (, it is possible that the lack of ³tangible physical connection´ with the state made this simply too tenuous in this case. 2. Establishing Jurisdiction after Shafer a. Property 3

Stream of Commerce and Minimum Contacts a. ii. Service of a person inside of the state is insufficient if the cause of action is not related to their presence/contacts in the state and there are not minimum contacts in the state. ( must have physical contacts within the state¶s territory ii. Particular kinds of conduct are required on the part of ( (such as advertising in the state. iii. fixing cars in the state) that show an intent to inject itself into that state¶s commercial world. The (s contacts must have been purposefully made iii. The court suggests the four reasonableness factors: burden on defendant. Directors of Corporations i.i. International Shoe doesn¶t permit jurisdiction on the basis of foreseeability that a product will enter a state. However. 2. *s bought an Audi in New York from (s. iii. The court also notes that due process will require a showing of minimum contacts even when jurisdiction is reasonable. plaintiff¶s interest. Facts: 1. *s filed a product liability suit in Oklahoma against (s after an accident in Oklahoma. Reasonableness alone could promote forum shopping 4 . Convenience of jurisdiction cannot override federalism and state sovereignty 2. d. In an unrelated cause of action. ii. ii. dispute over property). shared interest of the state¶s social policies. General Rule: i. without more. Policy behind requiring minimum contacts in addition to reasonableness 1. but arises from the efforts of the manufacturer or distributor to serve directly or indirectly the market for its product in other states. Establishment of Specific Jurisdiction i. does not an act of a ( that is purposefully directed toward a state. c. if the sale of a product is not an isolated occurrence. The Injection of a product into the stream of commerce. (s have no contacts in OK other than people like * who drive through the state. soliciting retailers in the state. World Wide Volkswagen v Woodson (#4) i. In a cause of action related to the property (harm on property. The minimum contacts the court looks at are those that are intended to serve a market within the jurisdiction b. the attachment of property is insufficient if there are not other minimum contacts in the state. Service in State i. it is not unreasonable to subject it to suit in one of those states. that property will be sufficient to establish jurisdiction. Reasonableness doesn¶t necessarily equal fairness to a defendant 3. Simple injection of a product into the stream of commerce does not create a basis for jurisdiction. Modern Tests of Specific Jurisdiction 1. b. Decision 1. States (to satisfy their regulatory interest) can require consent to jurisdiction as the price of accepting a directorship/officer position with a corporation of that state. forum state¶s interest in adjudicating. The (s contacts must be related to the claim.

O¶Connor¶s Vision of the Test 1. Brennan i. Asahi does no business in the US and may or may not have been aware that its products were being used in the U. where there are slightly weaker contacts than are typically required. The only issue remaining in the court was indemnification of Asahi to Cheng Shin. O¶Connor¶s Application of the Test 1. Related to the claim 2. jurisdiction does not exist. Brennan¶s Application of the test 1. Fair Play and Substantial Justice 1. The forum state¶s interest in adjudicating the claim 4. Fair Play and Substantial Justice a. it is then necessary to proceed to the fair play and substantial justice. it is still necessary to advance to fair play and substantial justice test. b. but it may be unreasonable to permit jurisdiction ii. Facts of Asahi v Superior Court (#4) i. and finds that fair play wouldn¶t permit jurisdiction here either. Cheng Shin settled out of court with (. Convenience to the ( 2. *s interest in suing in the forum state 3. Cheng Shin joined Asahi (Taiwanese) to the suit for indemnification. The Asahi Test for Specific Jurisdiction i. jurisdiction may be appropriate. Fair Play and Substantial Justice a. She finds no purposeful availment. Minimum Contacts 1. if there are minimum contacts. test for minimum contacts. Purposeful Availment of the state¶s laws ii. ii. Brennan¶s Vision of the Test 1. O¶Connor i. 2. However. Brennan believes that minimum contacts existed in Asahi because of the regular and extensive sales of parts to a mfg that Asahi knew was doing 5 . If there are no minimum contacts. However. First. a. d.S. If there are minimum contacts. it is necessary to proceed to fair play and substantial justice test. If there are insufficient minimum contacts. test for minimum contacts. minimum contacts won¶t matter. If it is unreasonable to permit jurisdiction. First. ³Fair Play and Substantial Justice´ in Asahi v Superior Court a. a. but a very strong showing of fair play and substantial justice. Cheng Shin (Chinese) was sued in a product liability case in California. Used to determine if jurisdiction comports with due process in those situations where minimum contacts have been met. She proceeds to fair play for kicks. O¶Connor finds that injection of a product into the stream of commerce was insufficient to subject Asahi to California jurisdiction. Interstate judicial system¶s interest in efficient resolution of claims and shared interest of the states in furthering substantive social policies c. 2.Fair Play and Substantial Justice Test 1.

ii. The interstate judicial system¶s interest in obtaining the most effective resolution of controversies & the shared interest of the several states in furthering substantive social policies. Contract/Business cases tend to use the Brennan in California. iii. Fair warning requires a ( to purposefully direct his activities at residents of the forum state and the litigation must result from the alleged injuries that arise out of or relate to those activities. Once it is defined that defendant established minimum contacts within the state. A strong showing of fair play and substantial justice may serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required 6 . The dissent argued that this was an unfair result for a ( who conducted all of his business in MI and had direct contact primarily with BK¶s office in Michigan. e. O¶Connor wants a set of fairly clear rules with clear limits. a. The Competing Tests i. the contacts may be considered in light of other factors to determine whether they comport with fair play and substantial justice. 1. Argues that stream of commerce with knowledge that substantial quantities of a product will enter a state is sufficient for minimum contacts. The plaintiff¶s interest in suing in the forum state 3. b. Brennan wants to create more forums and options for plaintiffs by opening up forums where defendant corporations can be sued. Final Determination 1. ii. 2. ( ³purposefully availed´ himself of the benefits and protections of FL law by entering a contract that said that state¶s law would govern. Minimum Contacts 1. Numerous contract disputes arose. Burger King v. iii. all of which had to be settled through contact with the BK headquarters in FL. Product liability cases tend to use the O¶Connor approach. Rudzewicz (#5) i. Use of the cases depends on the circuit and the type of suit. Instead of a traditional analysis. ii. The forum state¶s interest in adjudicating the dispute (a strong showing of which will overcome a showing of a bad burden on the () 4. Still finds that fair play test precludes jurisdiction. Expansion of Fair Play and Substantial Justice Test a. Brennan¶s Approach to Jurisdiction in Burger King i. She wants a test that is predictable and cannot be manipulated to favor plaintiffs (forum shopping). Decision: The Supreme Court found that FL courts had jurisdiction over ( because ( reached out and purposefully conducted business with a company primarily based in the state of FL. Brennan focuses on aiming by asking ³Is the defendant aware of the contacts he is making?´ and ³Is the defendant deriving a benefit from these contacts?´ 2. A contract dispute arose and BK sued in Florida court. The burden on the defendant 2. ( never went to FL but had repeated and numerous contacts with the BK office in that state. Fair Play and Substantial Justice 1. (s contract said that Florida law would govern all disputes. Facts: ( applied for a BK franchise in Michigan.

if the * has no other forum in which to sue. etc in a way that strips them of true justice a. Decision 7 . ( must have purposefully aimed his wrongdoing at *s in the forum state ii. the (s knew that the article would hurt Temple. c. based in FL. 2. Fair Play & Substantial Justice 1.2. no malicious intent) so long as the defendant should have known that the plaintiff was located in the state. 2. and would therefore cause Temple pain in CA. c. Temple lives in CA. Development of a flexible test that can will work better for ³the little guy´ in most situations (but not all. Note that Pavlovich suggests that Fair Play and Substantial Justice factors may favor jurisdiction on a weaker showing of minimum contacts (e. Effects of the (s wrongdoing must have occurred in forum state 2. Calder v Jones: i. Policy 1. Ramifications 1. duress. Therefore. There isn¶t evidence that Pavlovich knew who any specific companies within the film/computer industries were. 2. Facts: National Enquirer. b. etc. Aiming and the Internet i. Policy behind and ramifications of Burger King i. would wind up in CA. Typically satisfied. iii. ii. Potential for naïve franchisors who enter into contracts to have jurisdiction levied against them due to fraud. Decision: This was more than just an article in the stream of commerce. A defendant who has met the minimum contacts requirement may remove jurisdiction by presenting a compelling case that the lack of fair play and substantial justice would render jurisdiction unreasonable. the sources for the article were in CA. he left source code for CSS decryption on a website & (s argue that he should have known that this would directly harm CA industries. instead. and National Enquirer¶s greatest circulation was in CA. Pavlovich does not satisfy normal minimum contacts for CA. Brennan argues against this by saying that the ³Parties sophistication should be taken into consideration in these types of cases to protect naïve parties from fraud. Pavlovich v Superior Court (#6) 1. ³Effects Test´ i. as shown by Burger King) ii. Minimum Contacts 1. Temple sued the magazine in California courts. Development of ³Effects Tests´ a. it was foreseeable that (s would be hailed to court in CA.g. prints libel about Shirley Temple. He was hailed into court there on the premise of aiming. States interest in efficient judicial decisions are better suited by having franchisors subjected to a single jurisdiction (ensures predictability).´ Jurisdiction and ³Aiming´ 1. Typically only seen in cases of international torts. Facts: a.

where defendant evidences no intent to serve the market. service centers c. 2. where she joined Brennan).g. Chart of Tests for Specific Jurisdiction Minimum Contacts (Step One) Requires: O¶Connor (Asahi) 1. in cases where ( is seller of the goods in the state. authorized dealers Use of FP/SJ Factors (Step Two): A strong showing of FP/SJ factors does not compensate for a lack of purposeful direction. This test also reflects an attempt to vindicate ³federalism´ norms² basically.a.´ The two points go together: A really wideopen personal jurisdiction test (say ³forseeability´) could make every car manufacturer subject to suit anywhere their cars travel. Purposeful direction of contacts toward the state: requires evidence of an intent to serve the market for the product. See Asahi Thus. See World Wide Volkswagen. but the plaintiff is not a resident. which would allow the most * friendly jurisdiction to set tort and product liability policy for the entire country. A weak of showing of FP/SJ. distribution centers d. When does the test apply? Stream of commerce cases (e. He cannot be liable for harm caused to specific defendants simply because he ³should have known´ that his actions could harm an industry in CA. Even O¶Connor did not apply it in other types of cases (as in Burger King. The test reflects fears that a ³foreseeability´ test will allow *s to forum shop. and the forum has little to do with the subject matter of the litigation. 8 . even if the defendant markets the product there. it does not matter that the state has an interest in the suit or that relevant evidence is found in the state. personal jurisdiction would not exist in the forum state. advertising/solicitation b. World Wide Volkswagen and Asahi). Evidence of purposeful direction includes: a. as in Asahi. For example. norms favoring imposing limits on each state¶s relative ³sphere of influence. where the defendant deliberately seeks to serve the market for the state. There is insufficient evidence that the ( had enough knowledge to support a finding that he knew of harm directed to a specific * in a specific place. can defeat jurisdiction even if O¶Connor¶s version of the minimum contacts test is satisfied. many cases will assume the conduct and claim are related and resolve the case under other portions of the Int¶l Shoe test. Contacts related to the claim y Includes the occurrence of an injury in the state as a result of use of the defective product.

this is efficiency considerations (in Burger King. It allows courts to find jurisdiction even in cases where the contacts and purposeful conduct of defendant are pretty dodgy. FP/SJ usually is easy to show.. if jurisdiction otherwise would be difficult to establish in the forum under an alternative version of the International Shoe test.Brennan (Burger King) Purposeful availment requires: The FP/SJ factors can overcome a weak showing of minimum contacts. Pavlovich suggests FP/SJ factors might favor jurisdiction on a lesser showing at step one²e. even where intention is difficult to establish. Effect of defendant¶s wrongdoing occurred in the state. Defendant purposefully ³aimed´ his wrongdoing at plaintiffs in the state. but plaintiff¶s need for the forum is great: as where plaintiff has nowhere else to sue.g. so long as defendant ³should have´ known plaintiff was located in the state. In many ways. 1. many plaintiffs try to analogize cases to Calder. or manufacturers or key evidence is located distributors in the there) or what a court forum state. the court satisfied by may be influenced by the defendant¶s entry into a view that making one franchise contract in jurisdiction available for which the parties can suits against franchisees is anticipate continuous efficient because it saves communication and the franchisor costs of contact with the litigation in multiple states. Some courts apply something like it in some ³stream of commerce´ cases to overcome a weak showing of purposeful direction.) 2. even minimal or of contact with the state fleeting physical contact with the state and y In Asahi. a powerful plaintiff interest a significant volume in the forum (i. Acceptance of a benefit from that contact Calder v. Brennan¶s test is designed to reduce the costs for plaintiffs of finding a forum to vindicate their rights. 2. since plaintiff is a resident of the state and was injured there. Jones Relatedness to the claim ³Effects Test´ and purposeful direction satisfied where: 1. and consumers.. Defendant¶s ³awareness/forseeability´ Thus. plaintiff of the product to cannot sue elsewhere. Intentional Tort cases.. this satisfied questionable foreseeability by Asahi¶s awareness can justify jurisdiction if there is a powerful state that one of the interest in the suit (i. As Pavlovich shows. passed on to franchisees. views as powerful y In Burger King.e. component plaintiff is a resident and manufacturers who buys its product sells was injured there). if plaintiff has no opportunity to sue elsewhere. Brennan is trying to subvert the idea that due process imposes strict limits on the reach of states¶ jurisdictions. 9 . perhaps malicious intent to harm is not necessary.e. franchisor¶s and that cost-saving is headquarters in Fl. Commercial dealings.

Instead. The owner of a mining company could not conduct business out of the Phillipines during WWII so he conducted all regular business from his home in Ohio for the length of the war. Scalia finds due process satisfied because this form of service satisfied due process at the time the 14th Amendment was ratified. Sales: The court will look at the volume of sales of a company into a forum state. (Policy is in encouraging business) a. While in CA on business he went to visit his children (who had been relocated there with his estranged wife). The court refused to grant general jurisdiction over a non-resident corporation who had purchased large amounts of its helicopters from the forum state. When suit against the company was brought in Ohio. Helicopteros: (#8) i. ( filed for a divorce in NJ but didn¶t pursue it. even if occurring at regular intervals. Establishment of general jurisdiction based upon continuous and systematic contacts only applies to corporations b. Pervins v. 2.Modern Tests of General Jurisdiction Continuous and Systematic Business Operations 1. combined with active marketing of a product in the forum state by the company can be sufficient to establish general jurisdiction. Benguet Mining: (#7) i. 2. Modern Tag Jurisdiction in Burnham v Superior Court (#8) 1. a. Scalia ignores the requirement of Shaffer that all assertions of personal jurisdiction must be examined for minimum contacts. Large volumes of sales (3-6% of overall sales). Where a ( is induced by fraud or force to enter the state. Supreme Court permitted exercise of general jurisdiction on the basis of service of process upon the ( while he was located in the state. It is not established what would happen in the event that a company with similar business dealings was not ³headquartered in exile´ in the forum state Purchases and Sales 1. Facts of the Case a. ii. such jurisdiction will not stand. Opinions a. Scalia + Three/Four other Justices i. Jurisdiction based on physical presence alone meets due process because it is a long established principle/tradition of personal jurisdiction in the United States. Purchases: Mere purchases. the court found that the companies actions in the state were sufficient to establish general jurisdiction. 10 . He was served at that time with a CA summons and a petition for divorce. Scalia is therefore refusing to apply the International Shoe test in this case (because he finds it to be too amorphous). are not enough to warrant a State¶s assertion of in personam jurisdiction over a non resident corporation in a cause of action not related to those purchase transactions. 2. The court found that pilot training in the forum state was incidental to the purchases and therefore did not give a basis for jurisdiction. Problems with Scalia¶s Opinion i. ii. A company that was ³headquartered in exile´ in the state of Ohio during WWII was subject the general jurisdiction of Ohio courts.

etc) are undermined by Scalia¶s test. They attempted to sue in their home state. Is the forum chosen a logical choice. This problem may be limited by the fact that this test probably can¶t be used outside of any situation in which traditional rules grant unquestionable jurisdiction. duress. Carnival Cruise Lines v Shute (#9) a. Carnival can keep rates low). this requires that it be shown that ( had minimum contacts with the state. Facts i. or other factors that make the clause unreasonable. Was the forum too inconvenient? 2. Brennan + Four other Justices i.iii. ii. Minimum Contacts: Tradition creates a presumption of jurisdiction that will only require a weak showing of the minimum contacts in order to be upheld. Analysis of Forum Selection Clauses i. Was there fraud or overreaching? c. ii. ( met the fairness consideration because. iii. Problems with Brennan¶s Opinion i. The court asks if the forum selection clause passes scrutiny for fundamental fairness by asking: a. ( met minimum contacts by receiving the benefits of being in the state and the privileges accorded by the privileges and immunities clause (it would be assymetrical not to find that he was able to be haled into the court) 2. b. Although this was a contract of adhesion. d. Decision i. The court examines the clause for adhesion. as this is a traditionally accepted method of asserting jurisdiction. c. but Carnival contested jurisdiction due to a forum selection clause that limited the forum to Florida. ii. Brennan¶s broad reading of ³benefits´ received by ( as a form of ³purposeful availment´ would mean that almost any ( could be found to have purposefully availed themselves of a state¶s benefits. There 11 . where any * can pop out of the woodwork and serve a ( who happens to be driving through a * friendly state. Was there notice? d. Shutes went on a cruise and one of them was harmed. or was it chosen for an illegitimate reason? b. Forum Selection Clauses: Contracting parties can consent to a specific jurisdiction through contractual clauses. a. his voluntary presence in the state gave him clear notice that he was subject to suit in the state. Notice: Tradition creates ³common knowledge´ that someone who enters a state avails himself of being subject to that state¶s courts 2. Consent as a Substitute for Power 1. it was reasonable and bestowed a benefit on both parties (by limiting possible forums. The Role of Tradition in Brennan¶s Opinion 1. Contract: 1. Shaffer requires all rules of jurisdiction to comport with modern notions of due process. General Jurisdiction comports with due process in this case because: 1. Due Process 1. The purpose of Personal Jurisdiction rules (limiting forum shopping.

Is the forum too inconvenient? Carnival Cruise test applies 1. and it the passengers had sufficient notice. Specific Jurisdiction exists if a. Minimum Contacts ± The individual has purposeful contacts corporation has purposeful contacts with the state and the claim is related with the state and the claim is related to those contacts to those contacts b. no evidence of fraud. (3) forum state¶s interest in the controversy. Was there an illegitimate reason for the choice of forum? 4. Was there notice of the clause? 5. (2) interest of in litigating in forum state. Minimum Contacts ± The a. Is the forum too inconvenient? 12 . ii. Was there an illegitimate reason for the choice of forum? 4. (3) forum litigating in forum state. Was their fraud. FP & SJ is satisfied ± (1) b. or duress? 2. the forum selection clause was valid. Was there notice of the clause? 5. Does the forum selected have a reasonable relationship to the claims? 3. state¶s interest in the controversy. Specific Jurisdiction exists if 2. General Jurisdiction is established if the individual is a resident of the state or it is their principal place of business 2. FP & SJ is satisfied ± (1) convenience for of litigation in convenience for of litigation in forum state. Was their fraud. However. Personal Jurisdiction After Burnham & Carnival Cruise Service Directed to Person In-State Service Burnham/Pennoyer-style ³tag´ or ³transient jurisdiction´ is a basis for establishing general jurisdiction without reference to typical International Shoe test. and and (4) interest of interstate judicial (4) interest of interstate judicial system in ensuring ³efficient system in ensuring ³efficient resolution of claims´ resolution of claims´ Consent Carnival Cruise test applies 1. Therefore. General Jurisdiction is established if the corporation is incorporated in the state or it is their principal place of business Service Out of State International Shoe framework applies: 1. overreaching. overreaching. Scalia suggests in dicta that International Shoe is the sole basis for asserting general jurisdiction over a corporation International Shoe framework applies: 1. Does the forum selected have a reasonable relationship to the claims? 3. (2) interest of in forum state. or duress? 2.was no evidence that the forum chosen would discourage suits. Service Directed to Corporation Burnham suggests a possible basis for jurisdiction based on in-state service of a corporation¶s registered agent.

NY Banking law required the trustee of a common trust to publish notice of a judicial settlement of accounts in a specified paper once a week for four weeks. they must try harder to reach the ( through mail or personal service unless there are a large number of (s c. Mail Service i. Persons who do not receive notice may be bound if the notice provided was reasonable under the circumstances and their interest were adequately represented c. Decision 13 . so long as the mail is signed for at the correct address 2. 3. personal service is overburdening. Required by Due Process i. The judicial settlement of a trust is final and any rights of beneficiaries against the trustee for actions since the last settlement are terminated after the settlement. This argument is enhanced by showings that * is poor. With registered mail. If a * has reason to believe the ( didn¶t receive the mail. Notice that is feasible b. When a person in this class does not receive notice personally. Types of Notice a. ii. (3) (s who attempt to evade service. (4) indigent *s who can¶t afford personal service. but did not actually receive the notice can be bound by a court: 1. Publication i. they are still bound by the court¶s decision so long as other members of the class adequately represented their interests. they can adequately represent the other (s. Failure to Receive Notice i. Registered or First Class mail is acceptable with: (1) an out of state ( with a known address. (s who received the best notice required by due process. (s in a large class who do not receive notice personally. If all reasonable attempts to notify the ( were taken and failed 2. so long as it was the best notice required 3. If multiple persons have the same interest in the suit. Central Hanover Bank & Trust (#9) a. Permitted by Due Process i. d. Acceptable when it is the only way to provide notice to (s because they have contingent interests that may or may not materialize until a later date. With ordinary mail. Generally a. are still bound by the court¶s decision if members of the class adequately represented their interests. etc. Notice that is cost effective iii. (2) numerous (s. Personal Service i.Notice 1. b. Mullane v. Notice for Multiple Persons i. Facts of the case i. ii. Acceptable when a (s location is unknown and the cost of finding the ( is too high. ii. The best notice that is practical under the circumstances ii. Preferred if a known ( is in the state and can be located b. ii. The ( followed the minimum procedures for notice. The * appeared specially to object the notice that was given. a lesser form of notice (like mail) may be adequate because so long as some of the (s have notice.

Rule 4(f) a. Does not offend the constitution Other Restraints on Jurisdictional Power Long Arm Statutes 1. While it is not necessary to provide notice greater than publication to unknown or future beneficiaries. 14 . 4. Other States limit state court jurisdiction to more specific and limited circumstances. Permits service on anyone outside of the United States 5. Anyone other than a minor or incompetent may be served by following state law for service or: (1) personal service. and that requirement is not satisfied by a publication that is unlikely to reach beneficiaries for whom a known address exists (and who already receive mail from the trust on a somewhat regular basis). Rule 4(d) Waiver a. Failure to waive within 30 days (60 outside US) without good cause will result in expenses of service levied against ( 3. A * can request that the ( waive service and the ( has a duty to do so. Is consistent with federal law ii. determining the existence of jurisdiction by using a more limited set of criteria (e. Waiver does not waive any objections to personal jurisdiction/venue. Rule 4(e) Serving Someone in the US a. Rule 4(c) Service a.g. A summons must be served with the complaint within 120 days after complaint is filed. Otherwise action is dismissed or time for service extended. Rule 4(k): Federal court jurisdiction is based upon the state in which the Federal court sits. (2) leaving a copy at (s home with someone of suitable age and discretion who lives there. it is necessary to provide at least notice through mail. Rule 4(k) a.i. certain types of contacts) i. FRCP Rule 4 1. when it is authorized by joinder. Generally a. Good cause for failing to serve requires the court to extend time for service appropriately b. or when it is authorized by federal statute. the long arm statute of a given state is also the long arm statute of the federal court in that state. serving a summons establishes personal jurisdiction over a ( when they are subject to the general jurisdiction of the state in which the court is located. A ( not subject to the jurisdiction of any state court that is served with process for a claim arising under federal law is subject to personal jurisdiction of the federal courts so long as the jurisdiction: i. b. for those beneficiaries that are known. Generally. Therefore. or (3) delivering a copy to a service agent. That notice that will reach the largest number of interested parties with the smallest burden is required. Service must be by someone who is 18 and not a party. Some states permit state court jurisdiction under any situation that is permitted by the Supreme Court b. A marshal may be ordered by the court to serve the ( at the *s request 2. The State¶s interest in efficient settlement of trusts must be weighed with the due process rights of the beneficiaries.

For the Purposes of Venue: A corporation is deemed to reside in any district in which it has sufficient contacts. Any district in a state with personal jurisdiction over the alien will be a suitable venue. Corporations (28 USC § 1391 (c)) a. District where substantial part of events giving rise to claim occurred 3. For Federal Questions. Dee-K v. if all (s reside in the same state 2. * sued an out of state woman in FL ct. However. District where substantial part of events giving rise to claim occurred 3. Venue lies in any district. Jurisdiction over alien and proper venue. A district where any ( resides. 7. 5. Generally: Federal Law 1. Need not be ³most events´ ± only has to be ³some event´ that has significant relevance to the claim 6. If no other basis for venue exists. No jurisdiction. venue will lie in any district where a ( can be found.2. Fall Back Provision a. it is necessary to determine the ³venue´ or district in which the case can be brought. and there is no activity in the state by ( since. b. Decision: i. If no other basis for venue exists. A district where any ( resides. Heveafil (#11) a. a district in which any ( is subject to personal jurisdiction 3. See Title 28 U. The woman had sued *s husband a few years prior for damages arising from same facts as *s suit. Although Fl long arm statutes provide jurisdiction over out of stater¶s who sue in their courts. This is one of many instances of expressed preference for Federal Question suits in federal courts. venue will only lie in a district where a ( is subject to personal jurisdiction. ³Substantial Part of Events Giving Rise´ a.S. Intended to make suits occur where evidence & parties are located b. if all (s reside in the same state 2. it happened years prior. 15 . The questions for corporation residency are the same as those for minimum contacts & FP/SJ 4. Venue 1. After a Federal Court circuit is found to have jurisdiction. here the * wasn¶t a party to the earlier suit. a district in which ( may be found Diversity Jurisdiction 1. for Diversity Jurisdiction cases. § 1391 & § 1392 2.C. Gibbons v Brown (#11) a. Facts: i. Aliens: a.

Ct. c. ii. as opposed to who they have power over ± personal jurisdiction) means that. Policies behind structure of federal court system a. Article III permits federal jurisdiction where any one person on either side of the suit lived in a state that no one from the other side of the suit lived on. b. if created. Limited grant of subject matter (what they can hear. Statutory Grant of Jurisdiction a. During the framing of the constitution. The basis for this is ³case or controversy´ 2. State Courts have concurrent jurisdiction in most cases that can be brought in a federal court. Article III permits federal courts to hear any case in which a federal claim is raised. There are nine grants of federal subject matter jurisdiction iii. 16 . The framer¶s used several mechanisms to limit & balance the grant of power to federal courts: i. ( shows up at original trial but doesn¶t raise a subject matter defense. 1. Article III permits representative actions in diversity suits. ( then raises subject matter defense on appeal. All other federal courts are created (or destroyed) by the will of Congress ii. Collateral Attack is generally available here (though S.Subject Matter Jurisdiction of Federal Courts 1. 3. Article III permits congress to allow diversity claims with one citizen and one alien against another alien. Only the Supreme Court is a required federal court. i. Subject Matter Jurisdiction and Collateral Attacks a. Federal Questions i. Collateral Attack is available here ± Federal Courts must dismiss an action anytime they realize they don¶t have subject matter jurisdiction c. ( shows up at original trial and appeal but doesn¶t contest subject matter jurisdiction at either proceeding. Note that in some cases Federal courts do have exclusive jurisdiction as granted by Congress. Diversity Jurisdiction i. Supplemental Jurisdiction i. Not permitted. ( doesn¶t show to original trial and brings collateral attack on subject matter jurisdiction during enforcement proceeding in another state i. Statutory interpretations of § 1331 require that a case present a federal question on its face through a well pleaded complaint (defense based on federal question is not sufficient). hasn¶t dealt with it) b. ( contests subject matter jurisdiction. it was widely feared that the creation of federal courts would draw all power away from state courts and create a central and all power judicial system. i. During enforcement proceeding. b. If ( shows up and there is a final judgment without the issue of subject matter jurisdiction being raised ± it cannot be raised in an enforcement proceeding. 1. lower federal courts may only hear certain types of cases. even as a defense. Article III grants federal jurisdiction over claims that are closely connected to claims that satisfy federal diversity or question jurisdiction. Constitutional (Article III) vs.

g. Policies behind the grant of Federal Question Jurisdiction a. c. i. E. Policy Fueling Well Pleaded Complaint Rule: a. The Statute authorizing federal question jurisdiction (28 USC § 1331) has had the wellpleaded complaint rule read into it. Federal procedure may give plaintiffs more ³one ups´ 1. Well Pleaded Complaint Rule Development 1. Supreme Court can hear appeals of federal questions originally filed in state court. The ( may have a number of possible defenses. Article III does not require a well-pleaded complaint b. ii. Article III Grant of Jurisdiction & Congressional Authorization a. regardless of whether the original pleading was based on a federal question. not elected. Suits against a federal officer brought in a federal court that will invoke a federal defense are not subject to the well-pleaded complaint rule.Federal Question Jurisdiction (28 U. This ensures that cases in which a constitutional issue arises are not off bounds to the Supreme Court. Louisville & Nashville RR v Mottley (#12) a. c. *s seeking to forum shop were previously able to scavenge for potential federal issues that ³could´ arise before a ( even answered the complaint.S. A bright line rule is the best way to limit forum shopping and ensure only ³true´ federal questions make it on the federal docket 3. Federal discovery process may be more powerful than the state¶s iii. Greater competency of the judges iv. and a * shouldn¶t be able to choose the correct one for him. even when there was no important federal issue to be litigated. *Note ± Federal courts will not permit removal to a federal court if the original pleading filed in a state court does not meet the well pleaded complaint rule. Federal courts are more sympathetic to federal interests and federal unity than state courts (that may tend to focus on local interests and local bias) ii. and won¶t worry about re-election b. § 1331) 1. b. Ideology of the Judges (Federal judges in a conservative state might be more liberal than the state judges) c. *s that have tactical reasons to get into federal court could easily look for federal defenses and clog up the federal docket. Facts: 17 .C. Ensures uniformity of the interpretations of federal law iii. Policy of Limiting Federal Question Jurisdiction i. Federal courts have lighter dockets and proceed faster than state courts ii. Congress has explicitly revoked well-pleaded complaint rule in several situations i. Political Policy i. Judges are appointed. Courts have read this into the statute under the ³assumption´ that Congress did not intend to grant the full scope of federal court jurisdiction granted by Article III ii. 2. Plaintiff ³Policy´ i. Designed to limit the number of forum shopping plaintiffs. Intended to choose only those cases best suited to be tried in federal court ii.

c. found that the bigger issue was application of state law. Ct. Overinclusivity i. The court found that the claim in this case was for ³breach of contract´ and that the further allegations. this is satisfied. ii. Empire Health: HMO sued federal employee under federally authorized cause of action in order to recoup benefits received by ( in form of damages following a tort suit. Complex Test (State Cause of Action) i. Cause of Change a. b. 3. Modern Well-Pleaded Complaint Rule 1. *s sued (s for breach of contract in federal court seeking specific performance. the cause of action is federal. Therefore. * based his superiority on failure of IRS to give adequate notice (as defined by federal law). They argued that a new congressional act did not prohibit performance of the contract. it was in conflict with the 5th amendment. Modern Rule(s) a. were responses to expected defenses. Simple Test (Federal Cause of Action) i. Original Well Pleaded Complaint Rule i. A claim arises under federal law if federal law creates the plaintiff¶s cause of action. Increasing flexibility and variation in the federal pleading rules has led to changes in what can/must appear in a complaint. a. including that which brought up a federal issue. Ct found that the question of notice (federal question) was the only real issue in the lawsuit. but the question is solely one of fact. The Supreme Court didn¶t deal with the merits. and therefore granted federal question jurisdiction. 2. ii. 2. A suit arises under the Constitution and laws of the US only when the *s statement of his own cause of action shows that the actual cause of action is based upon those laws or that constitution. Here. a. but as an element of that cause of action. federal jurisdiction was not proper on basis of a federal question. Where the cause of action is authorized by federal statute or federal common law. A cause of action arising under the FLSA will be argued solely on the basis of whether or not the employee lied about the number of hours worked. The federal law required of these suits be tried under state law. A claim arises under federal law when the cause of action is created by state law but it is necessary to resolve a substantial issue of federal law in order to grant relief.i. It is not enough that the * alleges some anticipated defense to his cause of action and asserts that the defense is invalidated by some provision of the Constitution. and if the law did do so. Grable: * sued to recover land sold on IRS lien. Because a federal question did not arise in the cause of action. was required to establish superiority of his claim to title. and that federal law only authorized the claim. Decision i. court found no federal question jurisdiction. Shortcomings of Modern Rule(s) a. instead finding that the lower court did not have jurisdiction. Underinclusivity 18 . 1. b. b. * brought a state law cause of action.

ii. Time of Diversity Determination a. Examples: i. Jurisdictional inquires are full fledged factual inquiries. the cause of action is under state law. Subsequent changes in the citizenship of the parties will not affect jurisdiction 4. RR in Motley could not file declaratory judgment in a federal court ii. When jurisdiction is challenged. Citizens of different states. Diversity jurisdiction gives the federal government some sway over state law (which will be applied in a diversity jurisdiction case) 1. federal judges can push the law in certain direction. 4.i. This may enrich state law« iii. be from different states than those on the other side of the v. the party invoking diversity jurisdiction will hold the burden of proof relating to the diversity of the parties b. Diverse citizenship is based upon. Complete Diversity a. § 1332 by Marshall. Declaratory Judgment Act and Federal Question Jurisdiction a. The legislative intent shows that Congress did not want this act to expand federal jurisdiction c. a person who brings a declaratory judgment suit in a federal court must be diverting a suit that would otherwise fall under federal question jurisdiction based upon the well pleaded complaint rule. Diversity jurisdiction is intended to protect out of state litigants from state prejudice ii. therefore. 28 USC 1332 a. Historical Background a. 19 . When diversity jurisdiction is challenged. Someone who believes that are going to be sued for patent infringement (a federal cause of action) can file for declaratory judgment in a federal court Diversity Jurisdiction Background 1. 2. The party invoking federal diversity jurisdiction has the burden of pleading diverse citizenship. the time the complaint is filed. Therefore. Burden of Pleading & Jurisdictional Inquiries a. First read into 28 U. Article III (³Between citizens of different states´) & 28 USC § 1332 Determining Diversity Jurisdiction 1. despite the major role of federal law in this case. it can lead to a mini trial in the court based on the issue of jurisdiction. This act permits anyone who intends to be sued to file suit preemptively seeking declaration that the suit is without merit b. d. Here.C.000 and between i. Diversity Jurisdiction exists when amount in question is over $75. Requires that all parties on one side of the v. * makes a libel claim against a newspaper. Standard Explanation i.S. 3. Constitutional/Statutory Grants i. and must exist at. Critics argue that this clogs federal dockets and brings cases into federal courts that don¶t require a federal role b. The paper¶s defense rests entirely on the first amendment. Where state law is unclear or open to interpretation. it will not be brought in federal court.

Determining State of Domicile 1. Determinations of State citizenship for diversity purposes is controlled by federal law b. Length of time already spent in the state 7. Suit was brought in federal court on basis of diversity and ( contested jurisdiction. If aliens are on both sides of the v. a Louisiana citizen. Californian & Mexican sue New Yorker & Asian ± Jurisdiction under § 1332(a)(3) d.ii. Residence in a state is insufficient to be a citizen of a state i. Mas v. Modern Test: Citizens are domiciliaries of the state in which they reside (or intent to return to) and intend to remain in indefinitely i. Californian & Mexican sue Asian who is a permanent resident Alien of NY i. a person must be i. However. and permanent home and principal establishment and to which he has the intention of returning´ d. Japanese man sues Mexican man in Cali ± No constitutional or statutory jurisdiction b. *s sued (. Citizens of different states and in which citizens of a foreign state are additional parties. Intending to remain in the different state 2. e. as plaintiff. and iv. Facts: *s were French citizen and an American citizen. The court found it was nature of students to leave a place after obtaining their degree. and citizens of a state or different states as defendants b. Courts consider the totality of the circumstances in making a determination: 1. Citizens of a state and citizens of a foreign state. Stated intent of the parties 6. iii. Domicile is the place of a ³true fixed. Californian & Mexican sue Asian ± No Jurisdiction. Change in domicile may occur by combination of: 1. Purchase of a Home 4. A foreign state. legislative history of the permanent alien resident provision 20 . Californian sues citizen of Japan & Mexico ± Jurisdiction under § 1332(a)(2) c. To be a citizen of a state within the meaning of § 1332. Establishing State Domiciliary a. Diversity Jurisdiction and Aliens 1. for spying on them through a two-way mirror. Taking up residence in a different state 2. and ii. Diversity would appear to exist under § 1332(a)(3) because of permanent resident alien status. Failure of ( to bring evidence contrary to *s assertion may have contributed to the decision. c. American * had last permanently lived in MS but had resided as a student in LA for 11 yrs. A domiciliary of that state. b. Examples a. Presence of an alien i. Application for long term employment 5. Pry okay under Article III tho. then citizens must be on both sides of the v. Other circumstances surrounding their residence in the state ii. Perry: (#13) a. Decision: The court found diversity jurisdiction satisfied because * was still a domiciliary of MS. Family in the State 3. Voter Registration 2. The court didn¶t consider the length of time spent in LA or how long the *s would continue to stay in LA. A US citizen or permanent alien resident.

If two *s have a ³joint claim´ (suing for violation of same shared right) they may aggregate their claims. most operations generally) iii. Form B a. d. they may not aggregate their claims if the claims are regarded as ³separate and distinct´ c. ³Muscle Test´ 1. If one * has a claim in excess of the statutory amount ($75.001). Courts use one of several tests to determine ³Principal Place of Business´ i.000 2. Unincorporated Partnerships (LLPs) a. Consolidated Test 1. i.000 21 . ³Nerve Center Test´ 1. Exxon v. Diversity Jurisdiction and Corporations 1. Totality of the circumstances test. If the locus of operations is spread evenly across multiple state. Aggregation a. both *s can sue in federal court. Examine the Nerve Center and the Locus of Physical Operations to determine which state the corporation has the most contacts with the general public in. Where is the locus of physical operations? (Most employees. ³Where would the public assume is the main area of the corporation?´ 2. The amount determination is based upon the original complaint a. a. A single * with two or more unrelated claims against any ( may aggregate claims to satisfy the statutory amount b. 2. most manufacturing. both claims may be heard by federal court so long as one is more than $75. Treated as citizens in every state in which a partner or association member resides Amount in Controversy Requirement 1. Where is the headquarters/locus of executive decision making? ii. If two *s each have claims against the same (. Congress sets the required amount in controversy for Diversity Jurisdiction. Principal Place of Business b. Form A a. but not to expand jurisdiction where it would not have otherwise existed. and a second * has a claim for less than the statutory amount that arises out of the same common nucleus of fact. Other courts use congressional intent and refuse to find jurisdiction satisfied here. It is currently $75. Corporations are citizens of two places i.indicates that it was intended to defeat jurisdiction in some cases. Some courts stick to plain text and permit jurisdiction. the nerve center is the principal place of business. ii. State of Incorporation (pry Delaware) ii. The amount that is requested in the original complaint (if made in good faith) is the amount that will govern diversity jurisdiction issues throughout the entire case i. Allapattah: If two claims arise out of a common nucleus of fact. Incorporated Corporations a. Only in cases of bad faith requests or where it is impossible to a legal certainty for * to receive the amount requested will the original complaint be ignored 3.

The grant of jurisdiction is over ³case or controversy. District court has dismissed all claims over which it had original jurisdiction 4. Are there more state law claims then federal claims? 3. This is because the *s aren¶t actually aggregating. Grants supplemental jurisdiction over any claims that arise out of the same case or controversy as a case that the court has original jurisdiction over 1. b. Have the state courts dealt with this issue before? b. Is it an issue that only this state deals with and that the federal judges can¶t figure out how to apply? 2. Are the facts needed to prove state & federal claims largely the same? c. The court looks for ³Common Operative Facts´ b. c. Intended to provide a means of bringing related claims together for efficient (and sometimes more effective) litigation 2. 28 USC § 1367 (The necessary statutory grant of supplemental jurisdiction) a. Claim raises novel or complex issues of state law a. Claim substantially predominates over claims within the scope of original federal jurisdiction a. *Rarely used by the courts 4. there are other compelling reasons for declining jurisdiction a.ii. the plaintiff cannot join defendants to the suit if doing so would destroy complete diversity 2. In exceptional circumstances.´ The supreme court has read ³case or controversy´ to read as ³all cases that arise from the same dealio. instead. Creates exceptions to (a) based on diversity jurisdiction 1. Purpose a. Section (a) i. Would proof of the state law claims entitle * to recovery under federal law? If not. the court is exercising supplemental jurisdiction over the second *. Section (b) i. If the basis for original jurisdiction is diversity jurisdiction. Discretion remand of cases is permitted where there is supplemental jurisdiction if one of the following applies: 1. Supplemental jurisdiction cannot be used to create diversity. would the court spend most of its time factfinding on issues solely related to the state claim? b. Section (c) i. Without complete diversity there is no original jurisdiction and therefore no basis for supplemental jurisdiction. Article III permits federal jurisdiction over claims that are so connected to claims that satisfy federal subject matter jurisdiction. Notes on 28 USC § 1367 (b) 22 . yo´ (including counterclaims) 3. Constitutional a. The court already has original jurisdiction over the first * and the ( Supplemental Jurisdiction Basis 1.

In re Ameriquest Mortgage (#13) a. ( claims that she was an accomplice to unlawful accounting practices (and was fired for valid reasons) and that * can¶t bring these claims because it would violate her duty as an attorney to keep shit on lockdown. i. In order to fully recover under TILA. b. Discretionary remand is not necessary. Furthermore. b. and has not been applied in this manner before.R. First Bancorp a. Facts: i. case law in the state is sufficient to provide guidance to the federal court. Therefore. Supplemental jurisdiction exists because the causes of action are based on the same common nucleus of facts. b. 2. In re Ameriquest would have resulted in essentially forfeiture if no supplemental jurisdiction. ii. PR claims require much greater examination and require application of complex/novel PR law. no court has permitted joinder of a * when it would destroy complete diversity under these circumstances. Decision i. Although the state law to be applied is very complex. Szendry seemed like a case where the federal claims were just tacked on to get the lady into federal court. iii. She sued alleging violations of Title VII and various claims under PR law. Facts: i. claims far outnumber the federal claims and are of a scope that far exceeds the PR claims. however. This was an (recognized) error on the part of the drafters. Tacky-ness. * claimed that ( inflated value of her home to increase the loan amount she was offered. Szendry Ramos. She sought to rescind the mortgage and receive damages under federal TILA law. Decision i. * was fired for being a whistle blower. relaxed the amount in controversy requirement for additional *s joined under this rule. ii. b. In re Ameriquest appeared to be a case where the claims all naturally fell together. Szendry-Ramos v. resulted in no such forfeiture. Discretionary remand is proper because the P. Essentially. The courts have. She also alleged state law fraud claims against (. Case Law 1. There is an obvious stated preference for federal question jurisdiction. Inextricability of State/Federal cause of action. state law predominates over the federal claims. however. Note that § 1367 (b) does not say anything about joining *s who destroy complete diversity. * must fully recover under state law claims. 3. 23 . To date.a. it isn¶t appropriate to have a federal court try this shit. Comparison of the Two cases a. Supplemental jurisdiction was proper because * expressly linked her federal and state law claims in a way that showed that dismissal of the state law claims would mean insufficient recovery under the federal causes of action. This is common throughout the statutes/rules and reflects the preference for federal question jurisdiction. ii.

subject matter jurisdiction can be contested at any time. Action must have been admissible into federal court from the moment it was filed. a * could bring a claim in a state court (that could have been brought in federal court) in order to get ³in state bias. After a notice of removal is filed in a federal court by the (. An admission in discovery (that * intends to seek higher damages) is sufficient basis for removal. Removal must be made within 1 year of the original filing. Purpose a. Post removal changes to the suit that change the basis for removal do not destroy federal jurisdiction. Exception: If the court dismisses claims against non-diverse (s for lack of personal jurisdiction and creates complete diversity. Removal on the basis of diversity jurisdiction is not available more than 1 years after the original complaint is filed iv. Motions to remand for lack of subject matter jurisdiction may be made at anytime c. All (s must consent to the removal v. and * amends the complaint in a manner that provides a basis for removal. v. 28 USC 1446 ± Procedural Requirements for Removal i. Remand back to state court is not appealable.´ b. A ( who removes where the basis of removal is frivolous will be responsible for the costs of removal b. 28 USC 1441 ± Removal i. Where the basis for removal is diversity jurisdiction. Motions to remand for procedural defects must be made within 30 days 2. Statutory Grants a. Flexibility of Procedural Requirements in Removal 1. Unanimity Rule. removal is proper. removal is improper if any ( lives in the forum state (home-state rule) vi. iii. 1. even though no formal amendments are made 2. ii.Removal 1. 28 USC 1447 i. A ( cannot amend the complaint for the * iii. If the ( didn¶t have removal rights in a situation where the federal court had concurrent jurisdiction. You can appeal from a decision not to remand the case to state court. 2. Federal trial courts have the last word on whether or not removal is proper. vi. Involuntary rulings that eliminate a non-diverse party are not a basis for removal 1. Action must be removed to federal court in the state where the state claim is pending. Subject matter is based upon the situation present at the time of removal to the federal court. iv. we would permit the * too much power over the location of the suit. ( has 30 days after the amendment to remove. Only (s may remove a state filed action to federal court ii. ( has 30 days to remove an action after service of a complaint or learning of the basis for removal ii. The court may also hear motions to remand if there are procedural defects 1. the federal court may remand if the * believes the case falls outside of federal jurisdiction. If the suit is filed and originally shows no basis for removal. Generally. Because most federal jurisdiction is possessed concurrently with the states. 24 .

a. c. The power given to the states is divided among the many states. Constitutional limitations on the ability of the federal government to usurp the power of the states and centralize it for itself a. The intent was to decentralize government power to avoid despotism b. b. Article I § 8: Limits Congress to enumerated powers c. in the interest of efficiency. However. the court didn¶t think that people would take advantage of it. Decentralization occurred in two ways: i. and has the jurisdictional defect cured prior to the end of the case ± the decision will stand. ( removed the case to a federal court on the basis of diversity of citizenship on day before the one year limitation. Caterpillar (#14) a. Lewis v. in cases where there was no statute. Supreme court ruled that the judgment of the lower court should stand because the procedural error had been cured before the trial was over. The Erie Problem The Erie Doctrine Federalism 1. if a case is improperly removed. Shortly thereafter. Framers based the constitution on ideas of federalism a. The laws of the several states. Worth noting: The case had gone to trial and included substantial investment. and the ruling wasn¶t peculiarly local. Personal Jurisdiction 2. (So State Common Law didn¶t need to be applied). Article III § 2: Only gives the courts limited jurisdiction b. not remanded. complete diversity did not exist. the case had statutory (complete) diversity by the time the case was over. At this time. the federal courts could apply their own version of common law. b. However. there was a constitutional basis for jurisdiction (incomplete jurisdiction). This decision was based upon the popular belief that common law reflected ³true laws of reason´ and was superior to normal (state) court judgments 25 . Vertical Federalism 1. and checks are placed on the ability of each state to usurp the power of the others. 10th Amend: Reserves all non delegated powers for the states ii. but did believe it was necessary for purposes of efficiency. 2. the other ( settled and complete diversity did exist. b. shall be regarded as rules o decision in civil actions in the courts of the United States. in cases where they apply. Horizontal Federalism 1. Because of the unlikelihood of a case ever getting this far. a. As a general rule. * contested jurisdiction was rejected. except where the Constitution or Acts of Congress otherwise require or provide. Swift v Tyson: overruled by Erie Found that RDA required federal courts in diversity actions to apply any statutes or peculiarly local rulings of state courts. jurisdictional defects that remain uncured at the end of a case will require that the judgment be vacated. i. Rules of Decision Act a.

Erie didn¶t tell us how to tell one from the other 26 . Swift provided a means for industry and big business to easily forum shop. Erie intentionally limited the ability of forum shopping. ii. Erie Rule a. Swift has led to an unfair application of state law because the selection of a federal court by a non-citizen of the state has robbed the state citizen of the protection afforded by that state¶s common law. Filing times 2. Under Swift.´ . 3. b. the court applied federal common law. Facts i. Throw in a constitutional 10th amendment schtick that is largely considered dispensable. * (Penn) was harmed in Penn by a RR (incorporated in NY). but opposite ± Int¶l Shoe opened up forum shopping to help the little guys. as well as the construction of state common law as decided by the state¶s courts. c. Prevention of Forum Shopping by Industry i. * couldn¶t recover. Necessity of causation b. Under Penn common law (applicable due to choice of law rules). Uniformity of Decisions i. Stentor: Choice of law rules to be applied in a case of diversity are those choice of law rules used by the forum state. State courts simply have not followed the decisions of the federal courts as intended. it is the law as decided by the courts. and allowed * to recover b. b. Swift¶s conception of common law is junk. RDA requires application of State laws and State common law) 2. ii. (So. The real problem is Congressional mandate and federalism: 1. and only used to get a majority behind the decision. Klaxon v. Fair Application of Laws i. Procedural: How to act in court. Erie v Tompkins (#15) a. Congress never told the courts to apply ³federal common law´ and therefore they should not 2. Swift was intended to make uniformity of law and fair application of law by providing an example for state courts to follow. Decision i. Federal courts deciding cases under the basis of diversity jurisdiction must apply not only the stated substantive laws of a State. Erie Railroad v Tompkins 1. Erie never said which rules were which outside of their basic definitons a. Development of the ³Which Law´ Tests 1. Substantive: Elements of a claim. Common law isn¶t transcendental. Policy Behind Erie a. in order to help out ³the little guy´ who was losing due to forum shopping ³big guys. Erie told us that substantive rules of state law had to be applied in diversity cases.Like Int¶l Shoe. * sued in NY.c. Courts shouldn¶t be overriding state courts without a clear mandate to do so ± this is disrespectful. but must also apply the construction thereof of the local tribunals. iii.

Blue Ridge Rural Electrical Cooperative (Falling out of use) 1. Regardless of whether a substantive or procedural label is attached to a rule. NY law governed. on remand a judge would hear the case. Virtually any state rule can affect the outcome of litigation ± even if the rules are judicial housekeeping rules. The outcome determinative test lacked clearly defined limits. the state law must be applied. state law applied 2. Decision i. The state had limited interest in having their rule applied. There was no reason to believe the State law use of a judge was for any reason outside of procedure ± it wasn¶t tied directly to rights. Facts i. Is the State rule bound up with the rights and obligations (even policies such as prevention of bias will suffice) provided by the State in such a way that their application by federal courts is required? 1. Application: i.Outcome Determinative Test (Outdated) 1. Move on to step 2 27 . 2. Application of the law could change the litigation. The court designed the ³outcome determinative test´ to decide if Erie required the use of a state rule or permitted the use of a federal rule. Byrd v. For issues that appear procedural on their face. State Law applies 2. Blue Ridge Rural Electrical (#16) a. 2. b. The decided that using federal statute of limitations would change the outcome (by allowing * to proceed with the case) and therefore. The Outcome Determinative Test a. b. three questions arise: i. If federal law applied. Byrd v. If No. State rules about when a lawsuit begins are governing in diversity cases ii. ( invoked NY statute of limitations & * argued that federal court didn¶t need to follow the statute of limitations. the federal court had a great interest in having a jury see the case ± as juries are a constitutional requirement in most situations. General preference to state rules were shown c. State rules barring arbitration would control iii. Guaranty Trust v New York (#15) a. Byrd Rule: a. Court found that federal law applied because: 1. 3. but if so. it would not be such a great likelihood of occurrence that it should change the choice of law used. If Yes. Federal courts in diversity cases must respect the definition of state-created rights and obligations by the state courts. on remand a jury would hear the case. State rules barring state corporations from suing something would control iv. if applying the federal version instead of the state version will substantially change the outcome of the suit. Most major parts of the federal rules of civil procedure are outcome determinative in this broad sense of the word. If state law applied. Problems i. * was injured while working as an independent contractor for the (. b.

Test One: State Rule vs. The choice between the laws must be based upon the policies underlying Erie. Hanna v. It does this if it modifies or limits a substantive right a. iii. b. If Yes. State law applies 2. If No.ii. Will application of the state rule substantially change the way the litigation will come out (as opposed to if it was not applied)? 1. 28 . 2. If no. Only when a rule violates both the Rules Enabling Act and the Constitutional will the rule supersede the federal rule. It has never been applied to state rules for standard of review of jury determinations. This test has only been applied in situations involving the Judge/Jury relationship 1. ii. Does the Federal rule violate the rules enabling act? 1. the rule is trumped by state rule. Problems i. rules of preclusion). i. it is constitutional. they have done it in the exact same context as Byrd The Hanna Tests (Most Widely Used) 1. Plumer (#17) a. Test Two: Federal Court applying Federal Procedural Common Law (e. iv. but not per the laws of the State in which he lived. The court said that what Erie was really about what not ³outcome determination´ but instead forum shopping and equal administration of the laws. no rule has been found unconstitutional or in violation of the rules enabling act (so no state rule of procedure has superseded a FRCP). It is unconstitutional if it is outside of the authority for Congress to adopt under the necessary and proper clause as applied to the inferior tribunal clause or if it violates due process. move on to questions two. *To date. If yes. Doesn¶t provide a lot of guidance for deciding if the state law is bound up in the rights and obligations provided by the state iii. standard of rule. The Question: ³Is the rule rationally capable of classification as either substantive or procedural?´ a. Because statute of limitations was up the next day (or so) there was no chance to reserve him in the appropriate manner per state rules. The Hanna Tests a. Move on to step 3 iii. State law applies 2. number people in the jury. Doesn¶t provide a lot of guidance for which law should be chosen ii. If yes. 7th amend. etc iv. Therefore. The court found that the case should not be dismissed. Federal Rule of Civil Procedure i. Federal Rule applies b. the court devised the Hanna rules. equal protection. If Yes. b. Does the State interest in the application of its rule outweight federal interest in the application of its rule 1. Is the Federal Rule unconstitutional? 1. Basic Premise: Outcome determination cannot be bright line when federal common law procedure conflicts with state procedural rule. ( was served per FRCP. etc. under which they found the FRCP in this instance to be controlling over state rules. b.g. If No. To the extent that court have engaged in the test and come out in favor of the federal government. 2.

NOTE OTHER CHALLENGES ii.1. FRCP are intended to control procedure. c. Failure to show how the facts alleged align with the elements of a claim can be an issue of notice of failure to state a claim. b. Finding out what is required a. Would applying the federal rule lead to inequitable administration of the laws? (would it result in different outcomes if used by the Federal court in all circumstances ± as opposed to simply in this circumstance) 2. Pleading Stating a Claim 1. FRCP 8(a)(2) requires: 1. To provide the ( with notice about the lawsuit. General Rule is: 1. and is more deferential to the Federal Rule. FRCP are under the control of the Courts per authorization granted by Congress in the Rules Enabling Act (Congress has this power through inferior tribunal clause + necessary and proper). Statement of a legally valid cause of action 2. Would applying the federal rule encourage forum shopping? a. the * must show what facts establish the elements (How did the ( breach the contract. Challenges i. When. What were the terms of the contract). with Federal Courts announcing and using rules that displaced state rules without having been granted Congressional permission to do so. Purpose of Pleadings a. FRCP are Congressionally authorized rules that the courts follow. (Note this is not likely) 3. Actual Claims: i. Fair notice of the nature of the dispute (the facts causing it) ii. b. In order to put the ( on notice. but may not abridge or modify substantive rules and should retain trial by jury. Erie is less concerned about overriding state law. it is necessary to apply greater scrutiny and to ensure that use of the rule complies with the underlying policies of Erie. Would applying the federal rule encourage forum shopping? 4. Short plain statement that takes into account the elements of the claim on which the action is based and generally provides facts about each element 2. Current Majority Approach a. the Federal rule is common law. Policy Behind the Hanna Tests a. When such authority is clearly granted by Congress (and therefore is in the FRCP). Therefore. Would applying the federal rule lead to inequitable administration of the laws? (would it lead to different outcomes if used by the Federal Courts in all circumstances ± as opposed to simply in this circumstance) c. b. Is there a powerful federal interest in using the Federal Rule? b. in particular. Rule 12(b)(b) provides: 29 . and therefore not explicitly condoned by Congress. 3. To screen frivolous lawsuits 2. Erie was concerned. however.

An allegation of law will not be presumed true. Wrongful Settlements 30 . In an era where racism/Title VII claims were a big problem. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. What it Changes i. but left it unclear what was actually necessary 2. Note ± During 12(b)(6) motions. Without this flexible rule. Rule8 removed the requirement that all facts be stated. iii. Requiring and Limiting Specificity Under Rule 8 Early ³No Fact´ Approach 1. An allegation of fact will be presumed to be true during review. In (say Antitrust) suits where discovery can take a long time and cost millions of dollars. Relegates 12(b)(6) motions to situations were no supportable claim is presented (think Hadley v Garrison) c. the difference between allegation of fact and allegation of law is important. b. The court used the ³No Fact´ approach and found that the complaint sufficiently stated a claim because it included sufficient evidence to show the basic elements necessary for the claim. hidden racism. d. The ³No Fact´ Approach a. This is neither efficient nor fair. 2. the law did not recognize a cause of action based upon those facts. Decision i. ii. b. Without evidence of intent. rules of pleading were extremely demanding b.1. the black workers claimed that this action was done to intentionally discriminate based on race. Development a. they would have been precluded from stating claims based around conspiracy. Policy behind the test i. The ability to challenge a complaint by arguing that it fails to state a valid cause of action. Appears to read the requirement of notice out of Rule 8. Black workers alleged that their union had come to the aid of white coworkers. etc. ( argued that even if the facts were as * said they were. ii. Problems with the test i. Gibson a. it is not preferable to allow a * to begin the process of discovery witout some factual basis for the suit. The Test i. Historically. FRCP were intended to relax the pleading requirements and permit flexibility i. but hadn¶t come to the aid of black workers. Facts: i. Conley v. 3. See Hadley v Garrison (pg 352) for an example of a 12(b)(6) challenge 1. it was often difficult for *s to sufficiently state facts in their complaint prior to having the ability to conduct discovery. Expensive Litigation 1.

a. call foul under Twombly any time the complaint is at all vague. After Twombly. and then they fired me´ ii. The Twombly Rule a. In such a complex inquiry. b. 3. This serves a useful purpose in complex cases. As applied in 10th and 2nd Circuits i. i. where the courts feel that summary judgment fails to screen out bad cases. Twombly by and large uses the same standard as that applied in summary judgment. would be sufficient for a jury to find for the *. Bell Atlantic v. would sue just to reap the rewards of settlements Bell Atlantic v. knowing this fact. 1. and before it is possible to motion for 31 . Twombly 1. 2. The *s in Twombly likely could not have pled more than they did based on first hand knowledge. if supported by evidence. Something more than regurgitation of the elements of the cause of action and vague inferences to how those elements are satisfied is required ± factual allegations that make satisfaction of each element plausible will suffice. As applied in the 7th Circuit i. If you are a (. *s. a class action for discrimination will require more. merely the basic facts that are intended to be supported by evidence in order to prove the claim. Whereas a negligence claim is a simple evidentiary requirement and will not require conclusory factual allegations. c. a * alleging illegal retaliation must give some information regarding the conduct that led to retaliation ± ³I did this. (almost Summary Judgment standard) ii. As Provided in Twombly i. 1. Permitting baseless claims (especially in expensive discovery situations) could lead to settlements by parties that had done no wrong just to avoid the costs of trial/discovery. provide as much information as possible that directly explains/clarifies the claim and how the elements of the cause of action are met. b. In order to give fair notice of the grounds on which the complaint rests. This is especially true in class actions because class actions are ³certified´ without looking at the merits. In other cases: Plausibility requirement depends on context. ii. Twombly Standard and Summary Judgment a. a complaint must contain enough factual matter (that when taken as true) to show that the claim to relief is plausible on its face. Plausibility requires pleading of more facts only in cases that require more factual information for proof of the claim ± because it is necessary to provide more information to put the ( on notice. and this. If filing a complaint. Basic intent to provide greatest sufficient notice of the relief sought/reason for relief (and sufficient notice will vary depending on the context). a * is required to plead information that is obviously available to the * based on first hand knowledge of the case. The pleading does not need to contain evidence. For All Practical Purposes: i. ii. In some (most complex) cases: *s must plead allegations that.e. Problem w/this stance: It doesn¶t satisfy Twombly. d. it would be necessary to show a greater number of facts that the plaintiff intended to prove through evidence.1. Twombly (#18) 2.

´ 3. and before summary judgment can be used. nature of misrepresentation. 4. etc). *Sidenote. Rule 8 Affirmative Defenses 32 . Zurich Insurance Co. Deterrence of frivolous claims iii. (#18) i. It is ³necessary to give fair notice of the claim and factual ground upon which it is based. i. ( needed to provide facts establishing what * misrepresented and when * did so. FRCP 9(b) a. b. Heightened Pleading Standards in Special Cases (FRCP 9) 1. (s commonly settle right after certification. Specific Facts giving rise to a strong inference of fraudulent intent b. knowledge and other conditions of a perosn¶s mind may be alleged generally. Burdens in Pleadings 1. Methods for Allocating the Burden a. Note the Policy similarities between FRCP and Twombly i. at least in some cases. what the misrepresentation was about.summary judgment ± therefore. Punitive damages. ii. (e. Protection of reputations of those accused of fraud ii.Why assert fraud? a. Also. ³Puffed Up´ advertising claims) iv. Both aim to deter frivolous suits and keep costs down. Why require specific pleading for Fraud? i. a party must state with particularity the circumstances constituting fraud or mistake. Malice. whereas Rule 8 wasn¶t. Rule 8 was not drafted like Rule 9. What is required under FRCP 9 a. place. we don¶t want them to skyrocket with punitive damages (under a fraud claim) without good reason and sufficient notice to the (. but did not state what the alleged basis of the fraud was (what the * had done/said specifically that was fraudulent).g. Stradford v. Decision: Ct remanded so that ( could plead more specific facts. and presumably it was this way for a reason (not to up the ante for non fraud claims). intent. Facts related to the particular circumstances of the alleged misrepresentation (time. Twombly has caused a blur in the distinction between FRCP 8 and 9. juries are more likely to view a large corporation more favorably for fraud then for claims of breach of a contract by the lil guy. Permitting general allegations might allow *s to skip out on factual allegations that would show they didn¶t have a fraud claim as a matter of law. Fraud claims can arise out of contract issues. ( alleged the timing of the claim and some other facts. Weeding out of claims that are not fraud as a matter of law. This is criticized because Rule 9 was already clear. Policy Behind FRCP 9 a. 1. 2. it may have been wiser to simply move up the time at which a ( could motion for summary judgment rather than create confusion about pleading standards. c. Because contract damages are limited to expectation damages. ii. In alleging fraud or mistake. Note that if this was the true purpose of Twombly. This has led some people to believe that. Facts: ( counterclaimed for fraud when sued by * for failure to pay an insurance claim.

these aren¶t totally distinguishable because Twombly dealt with facts a * already had to state. Facts: * sued under a statue that allowed prisoners to sue for mistreatment. Alternatives to the Jones v Block method i. c. courts should not depart from the usual practice under the FRCP on the basis of perceived policy concerns (even when the policy was the purpose for the legislation that established the cause of action). noting that making any affirmative defense a burden of the * would also screen. if an issue is an affirmative defense. 33 . non-comprehensive list of affirmative defenses that a ( must raise in their answer (or waive their right to raise). the court decided to follow the ³usual practice´ which is to treat exhaustion as an affirmative defense. which would require making exhaustion a burden on the *. rejects this because: (1) Preference for open access to courts.Ct. it need not be raised by * in the complaint. If the element is not there. If the statute is silent on the issue. 1. Dealing with Statutes that don¶t allocate the burden a. Precedent i. reversed. expressly rejecting the use of policy to change pleading standards (exactly what the court did in Twombly) ii. The D. they may state whether an element is an affirmative defense or an necessity of *¶s complaint 2. S. Alternatively. Method used in Jones v. Jones v Block 1. Rule 8 should be examined. Deciding whether an element of a claim is a pleading requirement or an affirmative defense should be established first by examining the statute that creates the claim. particularly with common law causes of action.i. Generally speaking. then it is an affirmative defense that must be raised by (. Here. the usual practice regarding the pleading of that element in other causes of action should be considered. Decision: S. Jones was decided prior to Twombly. and emphasizes use of judicial restraint in changing pleading standards. we should use the policies of Congress to allocate the burden.Ct. Block (#19) i. By implication. without explicit declarations by statute. whereas Jones would have increased the facts a * had to state. if an issue is not an explicit element of a *s claim. 2. When Congress isn¶t clear on the allocation of the burden of an element. ii. the policy was to weed out meritless claims. b. Statutes i. Rule 8(i) provides a long. dismissed *s claim because he didn¶t provide proof that he had exhausted administrative remedies. and (2) adoption of new standards is not a case by case determination but should be based on usual practice or legislature¶s determination. Comparing Jones to Twombly i. In many cases. but isn¶t a good idea.Ct. precedent will establish what the elements are that the * must plead in the complaint c. When statutes form a new cause of action. but required that they exhaust all administrative remedies. Finding that the statute contained no allocation of the burden. However. 1. b.

Walker v Norwest a.C. (1 att¶y sent * att¶y a letter 34 . Denials of factual contentions are warranted by evidence. (1 was a citizen of MN. responses. When information changes: i. To whom can the court mandate sanctions be paid: i. A lawyer cannot continue to advocate a position after learning of its error c. Nonmonetary sanctions: i. The claims. information. willful misconduct. and other legal contentions are warranted by existing law or a nonfrivolous argument for changing existing law. and belief. Letter of reprimand against a lawyer (can lead to disbarment). they certify that to the best of their knowledge. order the lawyer to do pro bono work or attend ethics class. Inherent Authority of the Court a. Counsel¶s Liability for Excessive Costs: Any att¶y who multiplies the proceedings in a case to increase costs unreasonably/vexatiously may be required by the court to personally pay the costs incurred because of their nasssssty conduct. The authority to apply sanctions to atty¶s for their actions that are found to be conducted in bad faith. sanctions can only be paid to the court ii. or other conduct that shows disrespect for the judicial process 2. are reasonably based on belief or lack of information b. and other (s were citizens of wherever. defenses. b. Notes on Rule 11 a. sanctions can be paid to the court or the other side d. Rule 11 does not apply to disclosures. delay) ii. objections & motions i. The factual contentions have evidentiary support. 28 U.S. discovery requests. Application of Sanctions 1. Facts: The * brought a diversity case alleging that * was a citizen of SD. Consideration of conduct unrelated to ³pleadings or paper´ when deciding Rule 11 sanctions will taint the sanctions and require remand. 3. will likely have such support after reasonable opportunity for discovery. 1927 a. forbid the att¶y from pursuing further litigation without the court¶s permission 2. A client may be sanctioned by the court when: i. They are responsible for an atty¶s Rule 11 violation in regard to factual allegations (but never in regard to errors regarding issues of law). When other conduct is being considered. including SD. Rule 11 sanctions are not mandatory e.Ethical Limitations in Pleading and Litigation Where Courts Receive Power to Sanction 1. When the court makes the motion. ii. A lawyer does not need to officially amend their answer/complaint after realizing they made an error (or didn¶t find evidence to back up their contention). The paper is not presented for an improper purpose (harassment. and iv. sanctions should be based upon another basis for sanctioning. or if so identified. If the other side brought the motion. When a * or ( (or their lawyer if they have one) signs (as is required) and files a complaint. FRCP 11 a. removal of a lawyer from a case. iii. or if so identified. formed after an inquiry reasonable under the circumstances: i.

( provided a doll with a date stamp on its head predating the doll created by *. 3. Improper Venue d. you have until 10 days after court denies the motion). Waiver of Defenses Rule 12(h) i. Motions Presented as Defenses Prior to the Defendant¶s Answer a. Essentially a 12(b)(6) motion for after the pleadings have been submitted. Lack of personal jurisdiction (also used to challenge notice) c. Motion to Strike (12(f)) i. a party that makes a R12 motion must not make another motion raising a defense that was available but omitted from the 1st motion b. Most commonly used to strike (s from an answer that are not actually recognized defenses to the *s claim 35 . * failed to listen and refused to withdraw the complaint after served with a motion for sanctions. Decision: Reversed and remanded because the lower court improperly considered *s behavior outside the realm of pleadings when deciding to award sanctions Pre-Answer Motions (Rule 12(b)) 1. Waiver of Pre-Answer Motions a.asking for dismissal and warning (per R11) that sanctions would be sought otherwise. Provides extra time to file an answer (instead of 20 days/60 if service is waived. * att¶y didn¶t respond. Mattel: (#20) a. b. 4. The court may act on its own or by a motion made by the other side. Any Rule 12 motion can be combined with another Rule 12 motion(s) 6. Motion for Judgment on the Pleadings (12(i)): i. or failure to join a party. immaterial. Any defense not included in the first motion prior to the answer is waived. Insufficient Process (challenge to the form of process) e. b. Insufficient Service of Process f. Resolve unwarranted claims on basis of unquestioned law without much time or effort b. Limitation on Further motions (12(g)(2)) i. Failure to state a claim upon which relief can be granted 2. Combination of Pre-Answer Motions a. serving a motion postpones the answer until 10 days after notice of the court¶s denial of the motion (if they deny the motion) 3. Christian v. Court awarded R11 sanctions considering *s filing of a meritless claim and other misconduct. Decision: Att¶y violated R11 by failing to conduct a reasonable inquiry into the citizenship of named (s and by filing a diversity claim not warranted by known facts (because it was stated a ( was from SD). Used to strike material from a complaint that is redundant. Other Rule 12 Motions a. failure to state a claim. a party may move for judgment on the pleadings. Lack of subject matter jurisdiction b. but early enough not to delay trial. Effect of a Pre-Answer Motion a. 5. b. Unless the court sets a different time. unless that motion is based on a lack of subject-matter jurisdiction. After the pleadings are closed. Facts: * alleged that ( violated a copyrighted doll. Purpose of Pre-Answer Motions a. Except as noted in R(12)(h)(2-3). ii. or scandalous.

they may be estopped from denying something or otherwise held responsible. b. Motion for a more definite statement (12(e)) i. Admission iii. 3. Can be entered against specific parts of numbered allegations. but this is rare and will typically violate Rule 11. (Note that the payout from either ( would have come from same insurance company) (Also note. Counterclaims Denials 1. * didn¶t learn that ( wasn¶t employer until after statute of limitations had run. Decision: Ct. Response to Allegations i. it may be wiser to answer instead of filing pre-answer motions c. Essentially just a 12(b)(6) motion. like complaints. Affirmative Defenses c. R15 would have fixed the situation in the modern era) Affirmative Defenses (Rule 8) 1. Answers. affirmative defenses are strong.c. Waiver i. Means that the ( is denying every fact in the allegation. Keep in mind a. Admit that ( was present here but ( said that. Best used when ( doesn¶t doubt allegation. b. (s need to be very careful about how they answer allegations because if their answer is misleading. Because of confusion. Denial ± Specific or General ii.g. 11 1. ( had failed to provide an effective and specific denial that provided notice to * of *¶s mistake. Zielenski v PPI (#20) a. In situations where R 12 defenses are weak. and a ( is strapped for cash. The denial must address the substance of each allegation of the complaint. the ( is bound by the defenses that they advance in the answer (and can¶t raise others at trial). Pleading an affirmative defense does not constitute an admission of *s allegations b. Admission of Allegations i. but lacks sufficient information to know for sure b. The Answer ± FRCP 8. General Denial a. provide notice to the other side. Failure to plead an affirmative defense in the answer will result in waiving the ability to plead that defense 36 . estopped ( from claiming that the employee was not their agent on basis of equity. Effect of pleading an affirmative defense a. General denials can also be entered against specific numbered allegations. Facts: ( gave a blanket denial to a complaint and failed to specify that they were only denying employment of a specific person (because other facts were true). E. Whereas a * can allege various facts in a complaint and use different facts at trial. b. 2. Lacking knowledge or information (Effect of Denial) 1. Specific Denial a. 2. Defendant¶s must be very specific about what facts they are denying and what facts they are admitting. Contents of the Answer a. 10. These can be entered against the whole complaint.

and required assuming that trial court would find a certain way. etc. Motion to strike a defense 2. Exceptions: Defense motions that can¶t be waived 2. money. If * chooses to challenge the affirmative defense. ( can assert a counterclaim against * in the answer b. The burden of showing prejudice is on the party opposing the amendment c. and any responsive pleadings are filed. Courts will weigh the burden on both sides in considering whether or not to grant leave 2. a party will be limited to make a motion for judgment on the pleadings or a motion for summary judgment Amendments (Rule 15) 1. Court Permitted Amendments 1. * has 20 days to submit a responsive pleading if he so chooses 3.1. The FRCP does not want cases decided on technicalities. Motion for partial summary judgment 3. Facts: * was paralyzed while using a waterslide. or ii. Various persons agreed that the slide was mfg¶d by (. b. answer. New trial was proper for sake of saving time. Closing Pleadings a. After complaint. they can do so by: 1. undue prejudice to the other side. A party may amend its pleading once as a matter of course: i. Rule 15 serves the purpose of allowing amendments so that a god defense isn¶t excluded on the basis of procedural errors. Burden of Proof i. Rule 15: Amended and supplemental pleadings a. repeated failure to cure deficiencies through prior amendments. Permission of the court to amend is meant to be granted liberally. Amendment: Answer maybe amended to add defenses in some situations c. Effect on * i. Leave to amend shall be freely given when justice so requires. 3. Defendant bears the burden of proving to a preponderance of the evidence (over 50%) that his affirmative defense is true/warranted. Within 20 days after serving the pleading if a responsive pleading isn¶t allowed and the action isn¶t on the trial calendar 2. Amendment was proper because any prejudice to * was only potential. If ( does so. The slide was supposed to be mfg¶d by (. Motion for judgment on the pleadings 2. Policy against the Beeck outcome 37 . Before being served with a responsive pleading. Before the deposition. Rule 15(a) a. and preparation (as well as not prejudicing ( by bringing in the issue of negligence). * need not file a responsive pleading to an affirmative defense ii. (s president went and viewed the slide and concluded it wasn¶t mfg¶d by (. Policy of permitting amendments a. ( then moved to amend the answer and request a separate trial on the issue of who made the slide. bad motive. b. Leave should be given unless there is an apparent reason not to such as bad faith. Counterclaims a. d. Decision: Court permitted amendment and separate trial. Beeck v Aquaslide (#21) a. but instead on basis of merits b.

o. Prevent claims after ( has gotten rid of exculpatory evidence. The amendment changes the party or the naming of the party against whom a claim is asserted if Rule 15(c)(1)(B) is satisfied 2. or occurrence set out ± or attempted to be set out . Would Same/Different conduct of the ( be examined at trial? c. E. Relation Back Amendments 1. Was it the Same/Different time that (¶s actions occurred? d. Permits claims to be brought after the statute of limitations if they relate back to a claim made before the statute of limitations had tolled.o. Prevent stale claims. Would Same/Different set of facts be used at trial for new claim? b. 1.o. An amendment to a pleading relates back to the date of the original pleading when: i. thus prejudicing *. Mean statement made on 4/3/02.) filed on 4/1/05. Zelinksi where the real ( should have known that they were the proper () Determining if a Claim Relates Back 1. Defamation (3 yr S. Rule 15 and The Statute of Limitations a. and therefore won¶t always escape the statute of limitations.L.) brought on 5/5/05. It may have been more equitable to hold ( accountable for failing to uncover information that they should have. which is 120 days after the filing of the suit). had tolled. Considerations for Determining Relation Back a.L. This is not about whether ( could have intuited the second claim. Moore & Bonerb a.L. (e.g. Additional Policy Considerations: i. or they should have known that the action would be brought against them but for a mistake concerning the party¶s proper identity (within the R4m period of time. Moore v. Should the parties have made this claim earlier because of information available to them at the time of the original claim? ii. almost a year after the IIED S. or the original pleading. The amendment asserts a claim or defense that arose out of the conduct. IIED claim could not be brought ± because relation back would only be to 4/1/05. The law provides that the applicable statute of limitations allows relation back. IIED (2 yr S. Note that a new claim will only relate back to the date the first claim was filed.a. ii. etc b. but whether the facts/theory of the first claim provided notice of the possibility of second claim e. Purpose of the Statute of Limitations: i. transaction. Limit the amount of time a ( can be liable for prior actions. Rule 15 ± Relation Back of Amendments a. Rule 15 i. if that party had real or constructive notice that they could have been joined. 2. would it have saved money/resources for the parties? iii. If the claim had been brought earlier. ii. Is this just a desperate attempt to save the suit? 2. Also permits joining of a party after statute of limitations would have run on joining them. * likely suffered forfeiture due to delay caused by not finding the counterfeiter sooner. Baker (#21) 38 . Does the original claim put ( on notice of the second claim? i.g. ( knew of counterfeiting problems.

ii. When a * is overreaching. The first complaint didn¶t provide sufficient notice of anything (negligence. Risks of Discovery a. Bonerb v. etc. Create conditions for a judicial resolution of a suit without a trial i. * may attempt to serve ( with a lot of cumulative and expensive discovery costs. Information Production and Elucidation i. c. Decision: Denied Amendment. Claims: (1) Negligent maintenance: Breached duty to maintain bball court by failing to inspect and keep safe. Biggest block to settlement is commonly a lack of knowledge about the case and its merits ± typically resulting in a * who believes he can win more 1. especially in complex litigation b. failure to inform. Purpose of Discovery a. b. breach caused injury ii. At its best. Decision: Permitted Amendment. * had just changed counsel and learned of the possibility of a new claim. DISCOVERY Role of Discovery 1.i. The amendment seemed like a desperate move to keep a suit. This gave ( sufficient notice of the facts and theory alleged in the second claim. This will raise (s cost of litigation and may lead to settlements for more than would otherwise be warranted. It can cost millions of dollars. Bonerb: Discovery was just beginning. Summary judgment 2. Claims: (1) Informed Consent: Risk of surgery not made known. (2) Counseling malpractice: Breached duty to provide good rehab center by failure to inspect and keep bball court safe. (2) Medical malpractice: breach of duty of care. Emphasis on using litigation to discover the truth b. 39 . c. The second claim arose out of the same facts alleged in the original complaint and the theory of negligence. settlement is a good outcome for litigation 1. The original complaint focuses on (s acts before surgery. It can be used to coerce the other side into settling on less favorable terms i. Richard Caron Foundation (#22) i. discovery can correct the *s conclusions about the merits of the case and lower his estimation of what he can win. ii. etc) alleged in the second complaint. the second complaint focused on (s acts after surgery. The amended complaint arose out of different conduct/transaction. Promotion of Settlement i. Moore: Discovery had occurred. ii. When (¶s expect cost of counsel & estimated loss at trial is less than the * seeks. ( can offer * more than he expects after paying costs of att¶y. Policy Comparison i. amendment would have increased cost and caused more prejudice to (.

The question is whether the part was sufficiently designed and made to withstand force. * not entitled to discover complaints made against ( by employees at plants other than the one where * worked Chavez ii. Evidence relevant to the subject matter is evidence relevant to the design/manufacturing of the entire car. ii. Not narrowly tailored: i. Evidence relevant to the claim is evidence relevant to the design/manufacturing of the specific part in question 2. Determining Relevance: i. Limitations to Discovery ± Rule 26(b)(1) a. the statutory regime. Facts: * seeking to establish Title VII claim against their employer sought discovery of complaints made against ( in the prior 4 years by employees in the same positions. Looking to Underlying Law: 1. Complaint alleges that the failure is due to stress failure of a particular part of the car located behind the wheel. b. * alleging religion discrimination could not discover complaints based on any & all other forms of discrimination by employer 3. Relevance to a Claim or Defense 1. *Adopted in 2000 to limit what information could be requested b. Example of the Distinction: i. Request was narrowly tailored to the specific claims in the case and was relevant in establishing that (s non-discriminatory reasons were pretextual. * sues Ford claiming strict liability and liability based on negligence due to brake failure in his Escort. In Contracts Cases: (s negligent driving habits are not relevant to his breach of a sales contract 40 . 2. evidence that could be relevant to a successful claim based on the statute. Requested information must be nonpriviliged and relevant to any party¶s claim or defense i. b. 1. court may order discovery of any information relevant to the subject matter involved in the action i. Relevance of Requested Information a. Precoat Metals i. and for the same reasons. Courts determine relevance by looking to case precedent. Discovery requests must be narrowly tailored and relevant to the specific allegations and evidentiary needs of the party. *Ensures broad discovery is permissible when necessary 2. Distinguishing Claim v. and the Rule of Evidence. For good cause. Claim relevance is information directly related to the facts alleged. Davis v. Subject Matter Relevance a. Discovery requests must be narrowly tailored to the claims/facts of the case and relevant to the specific allegations and evidentiary needs of the party.Possibilities of Discovery Relevance 1. Subject matter relevance is information related to the whole circumstances. at the same location. ³Narrowly Tailored´ Requests for Information a. c. ii. Decision: * request was permitted.

Decision: This information is not discoverable because it is not relevant to the propriety of *s discharge on the basis of his stated homosexuality. ( sought to discovery information about *s sexual conduct while in the Navy. Documents or tangible things related to the claims or defenses of the disclosing party and made by individuals likely to have discoverable information ii. 3. and information she did/should have received. all possible claims. She would need to ask the court for permission to discovery information about her surgery. Gay sex was not a part of the discharge and therefore isn¶t relevant. Steffan v Cheney (note limitations of this case due to administrative review setting) i. It requires telling the other side about the evidence. Title VII cases: Courts look to what is required to prove Title VII discrimination and legislative intent. Subject Matter Relevance 1. Federal courts apply federal spoliation law. Application a.2. how to get to it. Documents prepared for the individuals noted above 41 . This information may elucidate other/alternative causes of action b. (Note ± administrative review cases may only consider the grounds on which the admin action was based). Requests for Discovery of Wealth i. In Torts Cases: (s wife beating is not relevant to his negligent driving habits 3. The Moore * could only discovery information relevant to her consent. etc. requests for bank account sizes are relevant to subject matter in cases of punitive damages. etc) d. b. post-op care (which might provide a basis for alternative causes of action). Facts: * sought review of administrative decision to discharge him from the Navy due to his stated homosexuality. ii. The duty to preserve requires preservation of: i. Sanctions for breach are based upon the court¶s inherent power 2. Basis a. Evidence requested in discovery does not need to be admissible at trial. Notes a. Purpose of Discovering Information Relevant to the Subject Matter a. where it is located. Requests for bank account sizes are not even relevant to subject matter in a negligence suit. This may be useful to undermine the reliability of the ( (by showing other problems. b. has a duty to preserve evidence or give notice of access when they know or reasonably should know that the evidence may be relevant to anticipated litigation. b. ³Notice of Access´ is the litigant¶s duty to provide the other side a chance to view the evidence. Duty to Preserve Evidence 1. The Duty a. arising from the common law duty to preserve evidence. i. Generally allows exploration of all options. However. This may provide background information helpful to proving the claim c. b. Even when the evidence is not under the litigant¶s control. and provides the best route to recovery 2. A litigant. not substantive law. or probable future litigant. because it is a matter derived from the court¶s inherent power. this obligation exists to the greatest extent possible for the litigant.

Dismissal of a suit should be avoided if a lesser sanction will perform the necessary function (punishment of blameworthy conduct & deterrence). or which is reliant to the subject matter involved in the litigation Sanctions for Breach a. *¶s conduct was not sufficiently blameworthy. and remedial rationales underlying the spoliation doctrine. Are difficult to get without proof of bad faith or very strong circumstantial. Many courts also recognize a tort action for spoliation of evidence Adverse Inferences a. despite direct orders not to destroy them. 5. b. 6. Decision: Dismissal of the case. the case may be won/settled solely on the basis of the adverse inference. Stages of Discovery 42 . Spoliation sanctions are only permissible when there is a degree of fault. A year later. Sanctions should be tailored to serve the prophylactic. Facts: * was injured when he crashed someone else¶s car. and get an adverse inference. * then sued GM. The records were destroyed with a culpable state of mind (negligence works) iii. * filed suit and sought discovery of e-mail tapes on (s backup tapes. and therefore courts don¶t want to use such a strong punishment without proof of bad faith or strong evidence of relevant information having been destroyed. The nature of adverse inferences almost always leads to a lost case/settlement. Courts want to limit using them because in large litigation. Because there is not sufficient evidence that the destroyed tapes contained information that was relevant ± there was no reason for an adverse inference. 7. iii. Options for sanctions: i. order that certain facts be considered established ii. 4. b. The destroyed evidence was ³relevant´ to the party¶s claim or defense in such a way that a trier of the fact could find that it would support such a claim/defense 1. If counsel can show that evidence was destroyed. Spoliation as an Opportunity a. Information that is relevant to the claims or defenses of any party.3. Silvestri v General Motors a. although he breached a duty (even though car wasn¶t his) to provide GM a chance to see the car. punitive. c. Decision: ( breached its duty by destroying tapes after being put on notice via the complaint with the EEOC. Otherwise. *¶s atty and two experts examined the car. Zubalake v UBS Warburg (#23) a. GM was severely prejudiced because it needed the car to prove its defenses. GM was not notified and the car was destroyed. Tort: i. The party with control over the evidence had a duty to preserve it ii. Adverse inferences regarding the destroyed evidence are available when: i. However. b. An inference of this is established if the records were destroyed intentionally d. Dismissal: Where there is bad faith or extreme prejudice to the other side. Six relevant tapes were missing. Loss of right to use experts. Facts: * filed a discrimination complaint with the EEOC. information almost always goes missing. Counsel may see spoliation as an opportunity when important evidence can¶t be found or the case isn¶t going well. parties would use discovery as a ³gotcha´ game to secure opportunity where they otherwise had none.

Use of Discovery Responses a. A copy ± or description of the location and category ± of all documents. 2nd = Rule 26(a) Mandatory disclosures. deposition can be used at trial (and as impeachment) iii. Can be used to request information about asserted privileges c. Disclosure of Expert Witnesses (90 days before trial) a. 2. A computation of damages iv. 3rd = Scheduling Conference of sorts 1. Provide basis for motions for summary judgment b. unless the use of that thing is solely for impeachment iii.1st = Rule 26(f) Conference and formulation of discovery plan. Required i. Court sets a trial date. electronic information. 4. Names/Address/Phone of persons likely to have discoverable information ± as well as the topic of that information ± that the disclosing party may use to support its case. Amended Disclosures a. if they have reason to believe the other side won¶t learn the same information Discovery Tools 1. No need to disclose witnesses who you know of. Lack the ability to use ³follow up questions´ 43 . deposition can be sued for impeachment or in lieu of testimony if the witness becomes incapacitated/unavailable. Parties meet and decide on a discovery plan. but who wouldn¶t help your case ii. Interrogatories (Rule 33) 1. Court sets status conferences for updates. etc. No need to disclose witnesses who testify to information that is not relevant to the claim (such as witnesses who testify about wage amounts for damage purposes) 6. If the expert witness is solely being used to rebut testimony of the other party¶s expert witness. Court reviews/changes the discovery plan. unless the use of that witness is solely for impeachment ii. *** Disclosure is only required for information that is available & accessible at the time disclosures are made. As evidence at trial i. Responses to interrogatories can be submitted at trial ii. the disclosure may be made 30 days before trial 5. when it will focused on. 3. Defined: A series of questions sent to the other side that must be answered under oath a. Rule 26(f) Conference a. This includes deciding the needs of the parties. Cheaper than depositions b. Mandatory Disclosures a. Rule 26(e) requires disclosure of information that a party learns after mandatory disclosures. If deponent is a witness. Disclosure of ordinary witnesses (30 days before trial) a. If deponent is a party. Not Required i. and tangible things that the disclosing party has. what will be focused on. Any insurance agreement that may be used to satisfy all/part of the suit/settlement v. Scheduling Conference a.

Acceptable examples include ³Do you admit you were driving a yellow Pontiac?´ 2. Request documents and other tangible things (ie those noted in the mandatory disclosures) from the other party in preparation for depositions 3. lack of knowledge b. Use: a. Some courts permit refusal to answer any interrogatories if the limit is passed. This does not. Depositions (Rule 30-32) 1. admission. Objection based on belief the evidence is inadmissible. require considering another party¶s witness as being credible. The corp. Limited to requests for admission of facts. Admissions are not binding in subsequent suits. Can only be given to a party. Request for Admission ± Rule 36 1. Responses a. not matters involving law or opinions. Binding Effect a. 4. the question must still be answered. Corporations a. The corp has a duty to provide the best deposee and will be bound by the deposee¶s statements at trial. A means of eliminating certain facts (without use of other limited discovery tools) at an early stage in the came. they must conduct a reasonable inquiry into the facts before responding that they lack knowledge. 10 Deposition limit. Courts may grant leave for more if necessary 3. Process a.d. Cannot be conducted until after the discovery schedule has been decided on b. If a party lacks knowledge. must then designate the best person to take the deposition. Admissions are binding in the suit during which they are conducted b. however. Only parties can be sent inaterrogatories a. Because of complexity and importance. but except where privilege is involved. Compulsion by a non-party can only occur through joinder (as a party) 3. Parties can depose a corporation and give notice of the matters being examined at the deposition. Purpose a. Timing a. b. Document Production Request ± Rule 34 1. 3. denial. Objections a. Parties must specify the item or category of items to be inspected with reasonable particularity 44 . There is a 25 interrogatory limit per recipient a. depositions are best conducted after sufficient discovery has occurred and information has accrued to formulate questions 2. Non-parties must be served with a subpoena. Limitations a. Parties can refuse to answer a question in an interrogatory on the basis of privilege. Failure to answer permits the deposing party to seek compulsion of discovery and a new deposition. An unprepared deposee is equal to failure to appear for the deposition. A lawyer may object to a question and give the reason for doing so. Other courts require answers up to the limit. 2. They must however state the reason for the objection and answer the question to the extent it is not objectionable. 2.

In Upjohn. (3) made at the direction of corporate superiors. 2. ii. General Test a. to protect a party or person from annoyance. Limitations on Discovery 1. In some jurisdictions. attorney-Client privilege will exist between an individual¶s agent (ie their accountant) and the individual¶s attorney if the communication is made for legal advice on the client¶s case ± but this isn¶t necessarily so. Not available as a right. A party who provides the examined party with the records may then request all earlier/subsequent records of the person¶s physical exams. A party who is examined may request the records of the examination a. The discovery sought is unreasonably cumulative or duplicative or is better attainable from another source that is less burdensome or less expensive. i. Rule 26(c) allows the limiting of discovery even if it is relevant. lower courts said that only the ³upper management´ was able to ³speak for the corporation´ and therefore have attorney client privilege if certain conditions are met. Protects communications between client and lawyer but not the facts communicated i. The communication must be made in confidence.b. Attorney-Client privilege protects a communication between a client and the client¶s lawyer. b. Generally must be required and of utility for the other party¶s case 2. b. The communication must be made for the purpose of obtaining legal services. By so requesting that party removes any privilege they had regarding their condition b. He can¶t be asked what he told his lawyer 2. The other party need not send documents. i. Courts may limit discovery when i. The party seeking discovery has had ample opportunity by discovery to obtain the information sought iii. Note that this is different than with corporations where the accountant¶s statements would certainly BE covered. Privilege Objections to Discovery: a. Attorney-Client Privilege 1. So if moller tells his lawyer ³I was drunk as shit last night and ran a red´ 1. the attorney represents the corporation as an entity. The burden or expense of the proposed discovery outweighs its likely benefit. not the individuals employed by the corporation. Scope of Protection a. (4) to secure legal advice from the counsel for the corporation as an entity. He can be asked how many drinks he had before driving. and (5) related to matters within the scope of the employees employment. (2) made to corporate counsel acting as such. Upjohn dealt with this: 1. Only available as ordered by the court after a showing of good cause. oppression or undue burden and expense. but may make them available for examination Physical and Mental Examinations ± Rule 35 1. 2. Prior to Upjohn. Any member of the corporation may be covered by attorney client privilege if the communication is: (1) made by an employee. This is the client¶s privilege b. a. embarrassment. the Supreme Court recognized that statements of any member of the corporation may have atty-client privilege if 45 . With corporations.

Facts: a. This only deals with testimony that may expose someone to criminal liability (but it can be invoked in civil cases). Public interviews of the witnesses had been conducted and recorded. *s atty sought to get the information obtained during the private interviews conducted by (s counsel. d. 3.a. investigator. Disclosure of the communication made to the lawyer to another person ii. Trial Preparation Material ± ³Work Production Privilege´ Rule 26(b) 1. Says that generally a party cannot discover documents or tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including attorney. Note the Fifth Amendment Privilege against self incrimination a. memos and other trial preparation materials that are less likely to convey a lawyers mental impressions and those notes. This privilege bans compelled testimony when that testimony would create the basis for criminal charges. e. a person cannot be forced to testify in a way that would incriminate themselves. ii. obtain substantial equivalent by other means. etc that are likely to show mental impressions and legal theories. The party shows that it has substantial need for the materials to prepare its case and cannot. The communication must be made by corporate employees b. Under this. conclusions. Work Production Privilege is crafted from Rule 26 and broadened by Common Law a. opinion. Decision: 46 . The communications must relate to matters within the scope of the employees employment. Distinguishes between notes. The communication of the employee must be made at the direction of corporate superiors. 1. The communication must be to secure legal advice from the counsel for the corporation as an entity. Note that privilege can be waived for several reasons: i. Inclusion of another party when the communication was made to the lawyer iii. Waiver of Privilege a. Taylor (#22) 1. the court must protect against disclosure of the mental impressions. The communication must be made to corporate counsel acting as such c. ii. Notes unlikely to hold mental impressions are discoverable if they are essential and noncompulsion would cause prejudice. Notes likely to hold legal theories or mental impressions are probably never subject to discovery. Common Law i. If information is compelled to be turned over. consultant. etc). Rule 26: i. recollections. (s counsel privately interviewed several witnesses to an accident. Other situations were the expectations of privacy are limited/nonexistent 4. or legal theory of a party¶s attorney or other representative about the litigation b. Exceptions: The materials are otherwise discoverable AND: a. Hickman v. 2. etc of an oral interview. without undue hardship.

4. something that is protected and beyond the scope of discovery. not rule 26). etc. A party or other person may request his own previous statement about the action or its subject order. as interviews with the witnesses were already on public record. Refused to compel discovery. and would permit idiots who were good moochers to become lawyers ± something we don¶t want. b. What won¶t courts let be discovered i.a. A previous statement is: a. Rule 26 says that if such work is produced accidentally. Furthermore. photos. the producing party must notify the other party (who must destroy/return it) and then the court must decide how to move ahead. the information sought was likely to be full of ( atty¶s personal mental impressions and notes. Possibly an independent interviewer¶s recollection of an interview ± if the investigator isn¶t likely to hold the same mindset as the attorney. Reports. ii. Atty¶s written summary of a witness telephone conversation ± it showed too much of the attorney¶s mental impression ii. etc will not ± unlike atty-client privilege). Permitting this would remove the incentives for real work. Identities of eyewitnesses b. Waiver i. *s atty couldn¶t show that they would be prejudiced. Identities of eyewitnesses that have been interviewed (shows legal theory) v. A written statement that is signed or otherwise recorded ± or a transcription that recites substantially what was said verbatim ii. A Parties Previous Statements to the Other Party 1. We don¶t want to make attorney¶s think twice before writing down what they are thinking. c. A previous statement is: 47 . Previous Statements a. Personal notes about impressions. Photo taken by a private investigator hired for the lawsuit (if it was impossible for other side to get the same photo. 2. We want to protect the efforts of the attorney/party who are working hard. A party or other person may request his own previous statement about the action or its subject order. directly transcribed interviews that were created solely for the sake of trial preparation ii. Presumably. limiting it to non-opinion materials). negligently turning something over to the other party could constitute a waiver. that are steeped in attorney¶s thoughts and theories. etc (based on common law. (but telling them it exists. What isn¶t Protected i. Materials that are ³collected´ but not ³created´ for litigation iv. only permitting intrusion by the other side when there is actual need and the possibility of real prejudice (even then. First. iv. photos. We don¶t want to permit mooching. documents that would have been created regardless of the pending litigation (trial prep must be ³but for´ cause of the creation) iii. thereby limiting their effectiveness as advocates. iii. c. Scope of Protection a. documents. it would likely be discoverable) c. What is Protected but can be discovered with showing of need i. Recollections of an interview and other intangibles likely to convey the attorney¶s mindset. Policy of Work Production Privilege: a. Reports. 3.

Can result in dismissal of a suit. a. Rule 36(c) ± The party will lose its ability to use the witness at trial. Failure to comply with court order can trigger these sanctions 3. If the order is granted and not complied with. the court may be asked to compel iii. Simply monetary sanctions 2. The easier it is to get harsh penalties for minor errors. Under Rule 37 i. Nice ± Monetary and Compulsion under 37(a) 1. the less likely it is that courts will work together and the more likely it is that they will seek court interference b. Failure to respond to numerous requests b. Incomplete responses are considered failures to respond and therefore also create a basis for compulsion 2. the motioning party may receive costs iv. Failure to make mandatory disclosures or failure to respond to discovery requests a. A court may stay proceedings when * is a jerk 2. A written statement that is signed or otherwise recorded ± or a transcription that recites substantially what was said verbatim Ensuring Compliance & Controlling Abuse 1. A party can seek and order to compel response from the court: i. Purpose of Various types of sanctions a. All parties sign discovery requests and responses to certify that to the best of their knowledge formed after a reasonable inquiry: 48 . This is also true if the witness comes on board after disclosure time and the party doesn¶t supplement Rule 26 1. First. which could be hindered by: i. Abuse of the discovery system by the parties ii. For failure to respond accurately or fully ii. bar usage of the deposee as a witness. Failure to show up to a deposition may be unpunished if failure was substantially justified 4. Failure to attend depositions b. 3. Court¶s prefer not to enter a default judgment unless a party is willfully stalling discovery. Mean ± Draconian/dismissal under 37(b) 1. Complete failure to comply with a discovery request a. The court may dismiss the suit. The goal is ensuring that cases are decided on the merits. Under Rule 26 i. Rule 37(b) draconian sanctions apply. Failure to Disclose a witness. the party must meet and confer and try to solve the problem outside of court ii. If the order to compel is granted. Bias of the courts themselves ± which is why sanctions are no longer automatic ± they used to be abused by courts in certain types of cases to harm plaintiffs (esp Title VII) Rule 37 1. draconian punishments begin b. holding deposee in contempt. Failure to participate in discovery a.i. Various types/levels of sanctions a. If the other party fails to comply. For limited failure to comply with a discovery request 2. Failure to show up to a deposition. a.

admissions. It is generally assumed that you need signed/sworn affidavits. summary judgment is appropriate. Evidence Used in Summary Judgment Motions a. etc. It is necessary to introduce new evidence. and show that the ( has failed to rebut this evidence 2. responses to interrogatories. ii. Has the nonmoving party responded? a. or increase the cost of litigation. not unreasonable/too expensive SUMMARY JUDGMENT Analyzing a Motion for Summary Judgment 1. See Adickes v.a. b. Celotex suggests that unsworn statements taken from intended trial witnesses will be sufficient b. summary judgment must be denied even if no opposing evidence is shown. cause delay. responses and objections are: consistent with the rules. A defendant can show affirmative evidence that establishes that they are not at fault c. When assessing the motion. Adickes¶ Heavy Burden 1. all justifiable inferences are construed in the favor of the non-moving party. Disclosures are complete and correct at the time they are made. You cannot rely on evidence that is already in the pleadings. A plaintiff can show affirmative evidence sufficient to win at trial. A moving party without the burden of proof at trial can satisfy its SJ burden by showing that the record lacks evidence supporting *s claim b. Has the moving party met its burden? a. If these inferences do not create any chance of a reasonable jury finding for the non-moving party. To support summary judgment: i. Nonmoving party has the burden of showing that there is a factual dispute by bringing forward evidence that rebuts the moving party¶s evidence 3. not intended to harass. transcripts of depositions. Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue. Requests. 2. Kress (#24) a. Court examines the evidence to decide if a material issue of fact exists 4. Note: 49 . To oppose summary judgment i. Rule 56 a. A party moving for summary judgment has the initial burden of showing that there is no genuine issue of material fact. b. The Summary Judgment Standard 1.

Policy a. Failure to include such direct evidence (such as affadavits by the police saying that they were not present) caused the motion for SJ to fail. will create a material issue of fact for a jury b. The moving party who does not bear the burden of proof at trial can satisfy its initial burden of production simply by showing that there is an absence of evidence that would allow a reasonable jury to find for the *. it would be impossible for *s to recover. where ( would have no burden of proof whatsoever. i. showing why the *s evidence was insufficient to overcome summary judgment. He emphasizes making summary judgment more easily available for (s. b. the nonmoving party would be required to submit actual admissible affidavits that created a genuine issue of material fact. Rehnquist (who is widely followed today) believed that the ( satisfied its original burden i. b. c. Desire to protect *s work protect until trial (not making them reveal it all) Criticism a. New Rule aligns the burdens with the parties¶ actual burdens: a. they can simply say that the * can¶t prove that ( did something. This is a higher burden of proof than at trial. Conservatives began feeling that juries were unpredictable and that *s were using this to get large settlements. Adickes lost favor in the 1970¶s when juries began handing out massive awards to *s in various cases. The court still required that the ( provide direct evidence that contradicted the circumstantial inferences the * was attempting to show. Disagreement between Rehnquist and Brennan a. and none had the support of admissible testimony. such as toxic torts. ii. All of *s allegations were based on hearsay. if not rebutted. Brennan believed that a ( should be required to provide affirmative evidence that addressed any evidence brought forth by the *. Brennan believed that ( never satisfied its original burden i. Celotex and the Modern Standard 1. 50 . 3. If the moving party met its burden by showing direct evidence that contradicted the circumstantial inferences of the nonmoving party. Therefore. 4. warrants a finding in their favor. i. When the other party is supporting its case with circumstantial evidence. He expresses a belief that innocent (s are being attacked by mean *s b. ( doesn¶t need to use direct evidence to prove that they didn¶t do something. the moving party has to come forward with direct evidence that directly contradicts an essential element on which the nonmoving party bears the essential burden of proof. the moving party must come forward with evidence with their summary judgment motion that shows that their evidence. which when presented.2. If the court required direct evidence of a conspiracy for recovery under equal protection laws. 3. What the Court Required of the Non-moving Party a. See Celotex (#26) 2. *s must be able to recover based on circumstantial evidence. Suspicions of summary judgment because it removes decision from a jury and may prematurely end a case. Nothing until the moving party had met its burden. 5. What the Court Required of the Moving Party a. By Contrast ± if the moving party bears the burden of proof at trial.

the nonmoving party must bring forward affirmative evidence that i. Advantage Int¶l (#26) a. Why not use Juries? a. Juries may decide based on irrelevant factors (lawyer¶s smile. b. Where the ( has provided specific evidence relating to specific circumstances. ( brought forward two of the son¶s teammates who claimed that the son had been a drug user. 2. Why use Juries? a. Impeaches the credibility of the witnesses used by the defendants. Directly contradicts the evidence brought forward by the (. they would have survived summary judgment. * has proof that decedent was exposed to asbestos. Adickes ± No SJ for the ( because they would struggle to show that the asbestos was conclusively not theirs. *s sued ( for failing to obtain a life insurance policy on the son. Facts: *s son died of a drug overdose. Brennan was concerned with allowing too many (s too file summary judgment for the sole purpose of delay. FACT FINDING Trial by Jury 1. ( claimed that the son was a drug user and therefore couldn¶t obtain a policy anyway. Burden on the non-moving party in Bias a. Requirement of a majority/unanimity can moderate bias and aid in greater deliberation 2. Juries bring real world wide experience that judges may lack c. but doesn¶t have proof of the manufacturer i. and untrustworthy 51 . b. ( produces a lot of asbestos. (Oldest Defense) Juries moderate laws that we might consider unjust because they have the ability to resist the law and apply unjust laws in a broad/flexible manner b. * and son¶s coach claimed that the son didn¶t use drugs. He was also concerned that this would give (s a means of finding out all of the evidence that * had. Distinguishing Adickes/Celotex a. Juries are capricious. etc) c. harassment and cost escalation. The * cannot create a material issue of fact by offering general testimony that opposes (s more specific testimony. Had the * provided directly contradictory testimony. it is necessary to show affirmative evidence impeaching the witnesses. 1.ii. irrational. or ii. Celotex ± SJ for ( because * couldn¶t proof that ( supplied the asbestos Burden on the Party Responding to a Motion for S. Just because the (s witnesses could be disbelieved by the jury isn¶t sufficient to establish a genuine issue of material fact. Decision: Summary judgment for ( was appropriate because *s witnesses did not directly contradict (s testimony about the sons behavior at parties. or impeached the (s witnesses. Once a moving party has come forward with specific evidence/witnesses. the *s directly contradictory evidence must also relate to those specific circumstances. Bias v. Juries may decide based upon grudges and prejudice b.J. Juries counteract bias by moderating outliers. 4. even if * couldn¶t prove it was (s ii.

First. ( argued against. Only creates such a right where the right existed in 1791. Determining if a right to jury trial exists 1. it is necessary to compare the statutory action to those that existed in 1791 prior to the merger of the courts of law and equity. Right to a Trial by Jury 1. Actions brought under ³trust´ for breach of fiduciary duty b. Applies only to the federal government. 2. b. Grants an express right of trial by jury as that right existed in 1791. iii. Facts 1. recission or reformation of a contract. *s sued their union. ii. * wanted a jury trial. No fact tried by a jury can be re-examined except in the ways approved by common law. Actions for Attorney¶s malpractice d. Then. Jury decisions may be taken away in certain circumstances. Generally understood as a two part test a. Purpose: i. JNOV. Both judgments and reasoning of rational juries are beyond questioning. Summary Judgments. Ejectment: Forceful removal of a person from a piece of land c. This is done by looking for an analogous cause of action that existed in 1791 and was brought either at law or in equity. but instead should be examined on the basis of its relationship to the general remedies available in the law/equity courts in 1791. Application i. Was intended to uphold ³the most important part of the government´ amid fears following ratification of a constitution that did not expressly include such a right. Local 391 v. Found that Judges were 78% in line with jury decisions and juries only slightly favored *s relative to judges. Does not create a uniform right to a trial by jury in federal courts. *s sought damages. ³Specific Relief´ claims such as: Specific performance. iv. Kelvin study found this not to be true. Replevin: Claim for return of property wrongly taken b. Application of the Rule a. Terry (#27) i. The Seventh Amendment a. Decision 52 . (. and where the right isn¶t waived. 1.i. i. Does not apply to states ii. Directed Verdicts. Money Damages 2. b. Order for New Trial Right to Jury Trial At Common Law 1. Claims brought in Law were subject to jury trial a. injunctions. The relief should not be examined on the basis of its relationship to the relief granted by the analogous cause of action from 1791. for violation of its duty of fair representation. Claims brought in equity were not subject to trial by jury a. it is necessary to examine the remedy sought and determine whether it is legal or equitable in nature. allegedly available at common law 1. Actions to vacate an arbitration award c.

Therefore. Judgment as a Matter of Law Use of JMOL 1. A jury trial is required all claims that can be heard by a jury at common law. not the form. then look to the remedy. If the action is novel (created by statute). b. claims had to be brought in their respective courts and a legal claim could not be joined with an equitable claim. *s were given a trial by jury. Speed up the litigation (policy of efficiency) c. Prevent unnecessary retrials (only with JNOV) 53 . Opinions in Local 391 v Terry Test Part 1 Majority When the cause of action is unquestionably like an equitable cause of action ± no jury. iii. If an action clearly aligns with common law action that could only be heard in an equitable court or could only be heard in a legal court. you¶ll never get an answer from step one. 2. found that the suit was most like the equitable suit for breach of fiduciary duty because both were against persons who independently exercised power on behalf of another. Agrees with majority Combining Legal/Equitable Claims 1. Agrees with majority Part 2 If there isn¶t a clearly analogous cause of action. it falls in with those categories and remedies need not be examined. Historically. The determination of a right to jury trial is based on federal. In Amoco the court found that a *s attempt to defeat a right to jury trial (accorded under a cross complaint) by removing their prayer for damages failed to defeat the defendant¶s right to jury trial based on their cross complaint (seeking damages). The court will never agree as to an analogy Stevens Concur Agrees with majority but believes that the goals. not state law Amoco (#28) c. ii.1. Purpose of JNOV and Directed Verdicts a. where *s brought claims in law and equity (and (s counterclaimed with legal claims). and determine if it is a legal or equitable remedy. Under Beacon v. Ct. the court determined that: a. the inquiry should have stopped here with no jury. the judge is bound by the jury¶s determination of the factual issues and must decide all equitable claims on that basis. it is necessary to examine the remedy sought Only examine the remedy sought. of the action should be analogized Dissent Believes that because the cause of action was analogous to an equitable cause of action. 3. The court thereafter considered the remedy sought (damages) and found that the remedy was legal in nature. Prevention of irrational judgments by juries b. General Application i. and therefore the cause of action included within it legal/equitable issues. Westman. The court decided that breach of contract (legal) was also an issue. After the jury has made its findings. And vice versa Brennan Concur No Need to Examine analogous causes of action.

( can motion for a directed verdict during the presentation. Timing for JMOL a. if the * feels that the ( failed to establish a necessary fact/issue c. Strong View (minority use) 1. he reserves the right to give a JNOV if he feels that the jury came to an irrational conclusion 3.Ct. even if ( has presented powerful evidence. the trial will go to the jury 54 . they need not be decided by a jury. JNOV prevents the need to redo the trial because an appeals court overturning a JNOV would simply have to reinstate the juries verdict. The court ruling on JMOL will only examine the evidence provided by the *. d. Requires a jury finding for all issues of fact. ii. What the Seventh Amendment Requires i. Seventh Amendment¶s Reexamination Clause i. * can motion for a directed verdict during the presentation. Either party can motion for JNOV within days of the verdict. or after the conclusion of. These courts do however retain the right to avoid jury trial for emergencies (like when a preliminary injunction requires a quick decision) iii. iii. or after the conclusion of. This motion is filed when a party believes that no rational jury could have reached this verdict. Old Standards. ( presents his case i. There must have been a motion for a directed verdict 2. Various types of things (like class certifications) require getting into factual issues. 2. Constitutionality of JMOL a. ii. the (s case. If a judge denies a motion for a directed verdict. The Seventh Amendment only protects the final decision on the merits 2.i. JNOV must be confined to the arguments made in the DV motion b.Ct. * presents his case i. Note that in order to file a motion for JNOV. found that JMOL is constitutional because there was an analogue to this at the time the 7th amendment was adopted. still used in some states a. The S. Because these aren¶t binding as the ³final result´ of the case. the motioning party must have motioned for a directed verdict at some time during the trial (Rule 50) d. If a direct verdict ends the trial before the trial is completed. Finding that a party is likely to succeed on the merits is different than finding that they have succeeded on the merits ii. the *s case. Generally 1. If the *s evidence is sufficient for a * to find for the *. Standards for JMOL 1. the case will have to be retried ii. requires two conditions in order for JMOL to be constitutional 1. *s only rule i. Bars reexamination of a jury¶s findings. Denial of a Directed Verdict i. The S. Broad View (majority) 1. After the verdict i. and an appeals court subsequently overturns the directed verdict. if the ( feels that the * failed to establish a necessary fact/issue b. Purpose of modern standards: Broaden availability of JMOL by considering all evidence and requiring more than a scintilla of evidence to go to a jury.

specific.b. d. The court draws all favorable inferences for the nonmoving party in making this decision. ( brought forward witnesses who were on the car that allegedly hit decedent. Furthermore. RR (#29) 3. or impeach them. see Reid v. Cases based on how strong inferences are based on circumstantial evidence (go to a jury) 1. one of which creates a conflict (or liability) & the other which doesn¶t. Decision: i. b. this isn¶t sufficient to create a substantial conflict in evidence. 55 . Witnesses & Inferences (The Exception noted above) i. Court probably would have permitted a directed verdict without (s witnesses because *s witness did not provide evidence that made it more likely than not that (s agents were negligent. only one of which would contradict (s witness. affirmative evidence that contradicts elements of the nonmoving party¶s case on which the nonmoving party bears the burden of proof. JMOL was appropriate. A party attempting to overcome JMOL must only present a scintilla of evidence to get to the jury. In order for the trial to go to jury. Note: i. Exceptions: When the moving party has presented direct. Modern Federal Standard a. 2. Chamberlain (#30) a. After that it would still be necessary to contradict the witnesses evidence directly. the nonmoving party must present specific evidence that contradicts the evidence of the moving party. * sued for death of decedent claiming that (s agents were negligent. they said no accident occurred. ii. A good lawyer could have impeached them on the basis of their employment and involvement in the accident. When a party bearing the burden of creating a substantial conflict in evidence (or showing defendant¶s liability) provides a witness who states facts that give equal support to each of two inconsistent references. Scintilla Approach i. c. ( provided specific evidence that directly contradicted *s general circumstantial evidence. there must be a ³substantial conflict in evidence. saw the cars moving in a certain manner and heard sounds ± which led him to infer that (s agents crashed into decedent. Essentially the Same as the standard for Summary Judgment b. it is not permissible to use one of them to contradict specific evidence provided by the other side. When two equally possible inferences exist.´ c. When the courts assess the evidence from trial in deciding JMOL. *s witness provides evidence that could create two inferences. Penn RR v. Substantial Conflicts in evidence include: i. Cases based on credibility of a witness (go to jury) ii. etc. Facts: i. * brought forward one witness who. willing sitting a distance from the accident. or calls into question the moving party¶s evidence¶s reliability in order to overcome JMOL. There was no actual conflict in the testimony. they ask if all of the evidence on the record is sufficient for a reasonable jury to find for the nonmoving party. A good lawyer probably could have overcome the inference issue by bringing in evidence of the decedent¶s experience.

except in very exceptional circumstances. Appellate Review: i. b. the decision should stand. 1. is highly suspect i. Impermissible communications between jurors and others. reversing the judge¶s decision because this was a simple legal issue. even when a new trial was granted on the basis of the credibility of the verdict. Majority Rule for Awarding a New Trial a. the court has no discretion to order a new trial. Minority Rule for Awarding a New Trial a. The judge should only set aside the verdict when there is a miscarriage of justice because the verdict is contrary to the weight of evidence. Appellate Review i. A jury¶s decision need not be so unreasonable that no reasonable jury could have reached it. Court used minority approach. Even where the evidence was strong enough to survive a JMOL motion. One such rule is that in simple cases. 3. Trial Judge i. Facts i. Procedural Errors taint the Jury¶s Judgment i. 2. Where a trial is based on a simple subject that does not require the use of expert witnesses or information outside the ken of the average jury member. the judge can overturn the verdict where the verdict was against the weight of evidence Standard for Granting a New Trial 1. etc b. Extent of the deference of the appellate court will expand the power of the trial judge when deciding whether or not to grant a motion for a new trial. but only in so far as that deference is governed by understandable rules. b. Contract case where judge found the facts and juries decision for the * to be ridiculous. b. The jury¶s verdict.New Trial 1. A trial judge should not set the jury verdict aside as contrary ot the weight of evidence or order a new trial simply because he would have come to a different conclusion if he were the trier of the facts. Lind v. Schenley (#31) a. A new trial is proper when: a. and therefore should not have been taken out of the hands of the jury for any reason other than one that was procedural 56 . Appellate courts should give deference to trial judges. and therefore granted a motion for a new trial. Trial Judge i. Decision i. Greater discretion to order a new trial based on credibility judgments does exist in complex cases with expert witnesses. the trial court cannot override the jury¶s credibility determination. So long as there is a basis in reason for the trial judge¶s conclusion. 4. 2. but it must be beyond the realm of the probable result of the evidence presented. Same Rule as applied in the majority plus ± ii. Appellate courts should give great deference to trial judges and not step in and overrule their judgment. while within the range of reason.

No Jury can Decide for P (0% Chance) New trial if verdict for P 50% chance of verdict for P New Trial if Verdict for D No reasonable factfinder could find for D Generally. only a 25% chance jury would decide the way it did). i. Cunningham: * sued for fraud and breach seeking compensatory damages. A party who did not receive an adverse judgment is unable to appeal a reasoning used to arrive at the lower court¶s decisions. Aetna v. 3. Why conditional grant? Efficiency ± saves time and ensures that party doesn¶t have to return to move for a new trial if the JNOV is reversed. where the verdict lies a great distance away from that which would be expected (e. Failure to object at trial waives the ability to appeal that issue. Rule 54(b) 57 . They have received an adverse judgment. If they could appeal on a finding of liability. Many times. the party must renew and support the objections throughout the trial by objections to evidence and by requesting rulings and instructions for the Jury that preserves his objection that point. Appeals may follow from final judgments and a very few interlocutory judgments 2. * could not appeal the fraud judgment because he received the full relief sought (damages). The cost of this: Lots of unreviewable trial court discretion until final judgment 2. a ( who has been found liable will settle instead of go through a lengthy damages proceeding. To protect and limit the dockets of appellate courts. this would increase appeals and limit settlements i. Ct found for * on breach but not fraud. Waiver/Failure to Preserve Objections a. it must also conditionally rule on any motion for a new trial by determining whether a new trial should be granted if an appellate court reverses the grant of JNOV b. a new trial may be proper. Typically both are filed at the same time a. They have preserved their objections by raising them at trial. Filing Motions for JNOV and New Trial ± Rule 50 1. APPEALS Ability to Appeal 1. A party may appeal if a. Both must be filed within 10 days of the end of the trial 2. Purpose of final judgment requirement a. If the court grants a motion for JNOV. b. Final Judgments 1.g. To preserve the objection. Reasoning is not appealable.

a. When an action presents more than one claim for relief, or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court determines there is no reason for just delay i. *intended to permit appeals on judgments for claims that could have been brought as separate causes of action. ii. *Note, requesting different forms of relief does not establish multiple claims. 3. Final Judgment Appeals: 28 USC 1291 a. 1291: Courts of appeals have appellate jurisdiction over final judgments of lower courts i. This is assumed to authorize appeal only when there has been a final determination of the whole claim ii. A Whole Claim Includes: 1. First: A showing that the pleader is entitled to relief a. They have a legal right b. Facts show that the legal right was violated, and c. They have a cause of action that entitles them to relief 2. Second: The pleader must request relief 4. Liberty Mutual v. Wetzel (#31) a. Facts: i. * claimed sex discrimination and sought various remedies from injunctive relief to damages. District court found ( liable but withheld an injunction order while ( appealed. b. Decision: i. (s were not able to appeal when they did. Rule 54 doesn¶t apply because there was only one claim. No injunction was actually granted or withheld (and even if it was withheld, only * could have appealed from that as an adverse ruling). Because * has not received rulings on any of the relief that they seek, there has not been a final judgment, as relief is a part of the whole claim that must be rendered before it may be considered a final judgment.

Interlocutory Appeals
1. 28 USC 1292 a. Congress has permitted interlocutory judgments in specific situations i. In cases granting/modifying/refusing to grant injunctions ii. In cases where the district judge certifies an order for an interlocutory appeal because he believes the issue is one regarding which there is a substantial question/division. The court of appeals can then take the appeal in its discretion. The appeal must be filed within 10 days of the certification by the lower court. 2. Liberty Mutual v Wetzel a. The S.Ct. refused to apply 28 USC 1292, even though it appeared possible that the lower court had intended to certify the decision of (s liability for this purpose. Court refused to do so because the procedural requirements were not met (10 days filing time), and the court found that failure to satisfy procedural requirements stripped an appellate court of jurisdiction to hear the appeal. Furthermore, it wasn¶t known if the appellate court would have even accepted the appeal if it was made under 28 USC 1292.


Now that we have made it easier for plaintiff¶s to get into court, we have developed mechanisms of providing defendant¶s with a greater amount of peace at the close of the lawsuit by limiting their potential for future liability based on the same transactions.

Claim Preclusion
1. A final judgment ³on the merits´ prevents relitigation of a. The same claim b. Brought by the same parties (or their privies) 2. What Claim Preclusion Law is applied? a. A federal court/state court looking to determine the preclusive effect of a prior state court judgment must give the state court judgment the same effect that the state court would give b. A state court looking to determine the preclusive effect of a prior federal court judgment must apply federal claim preclusion law if the case was brought under Federal Question jurisdiction. If the case was brought under Diversity jurisdiction, it can apply its own claim preclusion law.

Same Claim Requirement
1. Reminders a. Claims not available (or known) at the time of the first suit are never precluded from being brought at a later date b. Claims arising from later acts are never precluded from being brought at a later date Efficiency Considerations 1. Common Law/Minority View a. Only precludes claims that are based on a common sets of facts, defined as those facts necessary to sustain the cause of action ± not as those facts that could be conveniently litigated in one lawsuit. The facts must all be common to both causes of action. 2. 2nd Restatement/Majority View a. Same Claims are: ³Rights to remedies that arise out of the same transaction or series of transactions´ b. One suit precludes a second where the parties and the cause of action are identical c. Causes of action are identical where the evidence necessary to sustain a second verdict would sustain the first ± where the causes of action are based upon a common core of operative facts i. Courts should look to common overlapping facts ii. Courts should look to efficiency and ability (fair opportunity) of bringing those facts in the same trial 3. Frier v. Vandalia (#32) a. Facts: * had four cars towed over a one year period. He didn¶t want to pay to get them back so he filed suit for replevin. He lost, and then federal claim invoking the due process clause. b. Decision: i. Easterbrook played hard and fast with Illinois law and found claim preclusion barred the second claim. * could have joined the second claim to his first one, and failed to do so. The actions arose from the same transactions and facts. Although there were some different issues of proof, both claims also included proving similar issues of fact. ii. Note that Illinois doesn¶t use this form of claim preclusion (2nd restatement) but uses the common law form (under which there was no claim preclusion because 59

each claim required proof of different facts). Easterbrook latched onto a bit of ambiguity in Ill courts and tried to push the law. 4. Policy for 2nd Restatement¶s Position on Claim Preclusion a. Efficiency i. It is more efficient to try questions that share a common core of operative facts in one proceeding. It isn¶t likely that subsequent lawsuits would have different outcomes, so we should take measures to enhance efficiency b. Fairness i. Save the ( from having to incur the costs of two lawsuits.

Consistency Considerations ± Claim Preclusion Against Defendants 1. Rule 13 a. Compulsory counterclaims not included in the pleadings are waived. 2. Claim Preclusion a. Common Law Compulsory Counterclaims and defenses to prior actions are precluded by Res Judicata when not brought in the original suit. i. Common law compulsory counterclaims are: available to the defense in the first action, arise from the same facts as the original cause of action, nullify the rights claimed by the plaintiff in the first action. b. Exception: i. Where a claim constitutes a separate ground for recovery as well as a defense to the prior suit, that action constitutes a different cause of action and res judicata does not preclude bringing that suit. 1. However, when the second suit stands to nullify rights established by the prior action, both precedent and policy require that it be barred by res judicata 3. Martino v McDonald¶s Systems (#33) a. Facts: * breached an agreement with ( and ( sued *. The parties entered a consent judgment. * then tried to sue ( for violation of anti-trust laws in actions leading up to the prior suit. b. Decision: Claim preclusion applies. Because no pleadings were filed, R 13 doesn¶t apply. Although the exception to claim preclusion applies here, because *s suit is not only a defense but also a separate cause of action, that isn¶t sufficient to avoid claim preclusion. In this case, * is essentially challenging a judgment that ( has relied upon. It is the purpose of claim preclusion to bar such challenges. 4. Policy reflected in Martino a. Consistency of Judgments: The courts want one adjudication on the merit, not only for efficiency but to ensure the legitimacy of the judiciary, etc. i. Claim preclusion is about the final effect of the judgment and reliance on the rights established ± if the parties had settled without establishing rights, this suit may have been available for reassertion.

Same Parties Requirement
1. Overview a. Basis 60

E. 3. But See Martin v Wilks 1. Searle Bros v. where the second party had notice of the first suit and an interest that was represented in the same suit. Dissent i. Rule 41(b) 61 . Parties Appointed by Legal Process as Representatives 1. it is necessary that the party acted to represent interests held jointly (and that the parties didn¶t hold independent interests) b. Persons who are in privity with the parties to the original action c. they are not bound by a failure to do so. E. *s are now suing for their 50% interest in the property. The *s were not legally represented in the first suit.g. Facts: ( sued her husband for a divorce. Determining if a Final Judgment on the Merits has occurred a. Although *s had an opportunity to intervene in the first suit. E. Rules for Privity (used in Searle) a. Privity exists between persons representing the same legal right. Policy: Reduces uncertainty about property rights and encourages sale/purchase of property because we don¶t worry about rights. The *s testified at the divorce hearings. Searle (#34) a. a partnership of his sons. Privity Relationships in Claim Preclusion i. which is held independently from the *s interest.i. even when it is not explicitly recognized. Decision: No preclusion. Parties who have entered into formal/informal arrangements for Representation 1. Majority i. an opportunity to intervene. courts generally prevent preclusion from binding persons not involved in an earlier suit. Courts will not find that a previous party was an agent for the subsequent party unless it is explicitly stated that an agency relationship exists. The court can imply agency exists. representing their interests) d. b. Persons who were parties to the original action ii. b. and a later suit would alter rights established in the first suit. etc ii. including those with mutual or successive relationship to rights in property ii. Due process protects the fundamental right to a ³day in court. the husband was representing himself and his interest.´ As a result. A member of a class is in privity with the class¶ representative in a class action suit iii.g. situations where a party out of court is controlling the party in court for their own benefit (someone using the party in court as their agent. ii. Who fits the same parties requirement? i. Substantive Legal Relationships: 1. but were not parties. Supreme Ct. contractual representations. ( received a piece of property that the husband claimed was 50% owned by *s. Successors in interest to property 2. says that someone cannot be precluded even when they had notice. Even where a party is an agent.g. Final Judgment on the Merits 1. Determining the existence of privity is always a balance between efficiency/consistency and liberty/due process 2.

Issue preclusion is an affirmative defense and can be asserted through a motion for SJ c. or failure to join a party ± operates as an adjudication on the merits. Issue was actually determined by a final judgment d. *s counterclaim was dismissed with prejudice. * then filed suit in a federal court. a counterclaim that the state court should not have heard. c. Policy: Even though these are not final judgments. there cannot be preclusion of the claim. any dismissal ± except one for lack of jurisdiction. Unless a dismissal order states otherwise. The party bound by preclusion must have been a party or privie of the first suit Same Issue 1. issue preclusion may not apply a. if they were not preclusive. Failure to state sufficient facts ii. The determination was essential to the judgment f. Issue was actually litigated c. Issue preclusion deals with issues. * counterclaimed for SEC violations. Merrill Lynch (#34) a. but it must be the same issue within the same context 2. issue preclusion would typically apply. Test for Issue Preclusion a. However. the lower court did not have jurisdiction. dismissal for being an asshole would lose its bite. improper venue. because the action could simply be refilled in a different court. a criminal trial where ( is found guilty beyond a reasonable doubt will preclude the issue of (s guilt in a civil trial where the burden of proof is lower 62 . Gargallo v. Where the Burdens of proof are different. Decision: No claim preclusion. ISSUE PRECLUSION Application 1. but permit refilling an amended complaint 2. Dismissal for failure to state a claim iii. 2. Because the claims are identical. Same Issue b. Note personal jurisdiction may still be precluded by issue preclusion b. Odd Federal ³Judgments on the Merits´ i. etc 1. States may apply more flexible rules i. Claim Preclusion a. Some states find that dismissal for failure to state a claim only precludes refilling the same complaint. Ohio does not do so. The issue must not only be the same. not claims b. A civil ruling will not provide issue preclusion in a criminal trial b. If Ohio allowed preclusion where a prior court didn¶t have jurisdiction. The precluded party had a full and fair opportunity to litigate the issue e.i. Issue preclusion may provide a means of precluding relitigation of a specific issue when claim preclusion is not available. Alternatively. Issue Preclusion v. this claim would be precluded (because it is necessary to apply state rules). Facts: * was sued by ( for debt recovery. therefore. Dismissal for being an asshole during discovery process. b. However.

b. 63 . Preclusion by a judgment is only presumptively conclusive when it appears that the judgment could not have been rendered without deciding the particular matter brought in question. This is because different standards are used to determine the two types of citizenship. If Both Alternatives are upheld i. Policy a. Facts: i. it is necessary to show that the issue was one that must have been decided in order for the decision of the lower court to have been reached. b. * and his wife were hurt when * drove into (s train. * cannot be precluded from relitigating one of those bases. Illinois Central RR v Parks (#35) a. This may also be done when the jury issues a special verdict. indicating the facts that they determined and based their verdict upon. Decision: i. Where context provides different standards for determining the same issue. neither issue is precluded in subsequent trials. ( is precluded from arguing against their own negligence. i.g. 2. Actually Litigated and Determined 1. If the jury¶s general verdict necessarily required a finding of negligence. Where a judgment may have been based upon either or any of two or more distinct facts. or simply that he didn¶t suffer any loss of consortium. Determining if an issue was actually litigated a. In order to find that an issue was actually litigated. No issue preclusion. i. Because there were two equally possible bases for the jury¶s verdict. a party desiring to show that the judgment is precluding of relitigation of the particular fact in a later suit must show that the jury decided upon that specific fact. Essential to the Judgment Alternative Bases For the Judgment 1. Only the alternative that is upheld is precluded c. Effect of an Appeal on Alternative Bases for Judgment a. ( sought to have issue preclusion on the issue of *s contributory negligence.3. or else the question will be open to relitigation. If one Alternative is upheld and the other reversed i. If we decide that * is a citizen of state A for purposes of in state tuition in suit 1. Both alternatives are precluded from further litigation b. * sued for consortium damages and his wife sued for injury damages. that will not preclude the issue of *s citizenship of State A for purposes of federal diversity in suit 2. If one Alternative is upheld and the other not considered i. then the issue of negligence has been litigated and determined ii. * then sued (suit 2) for his own damages. If a judge (or jury on special verdict) returns two alternative bases for the judgment. However. In suit 1. the jury could have found that * was contributorily negligent. because such a finding was necessary to find for the wife. issue preclusion may not apply a. Reflects the fact that decisions based on alternative reasons may not be subject to as much vigorous determination by the finder of fact. 2. Jury found for the wife but not for *. Only the alternative that is upheld is precluded 3. E.

a trial judge should not allow the use of offensive issue preclusion where: a. i. the RR would not be liable. The policy is avoiding free-riding by plaintiffs. We don¶t want prior decisions to be preclusive unless we are satisfied that they were rightly made. it must be a ³butfor´ cause of the earlier final verdict. The issue of contributory negligence would be preclusive. increased litigation. Modern ³Non-Mutual´ Issue Preclusion a. because it was the but-for cause of no liability. The * could have easily joined in the earlier action b. however. The judgment relied on for preclusion is inconsistent with other judgments that went in favor of ( iii. If there is a chance of less vigorous determination. If a ( was found to have breached a contract.b. b. The ( did not defend himself sufficiently in the previous trial ii. A * may be precluded from asserting the claim that the * had previously litigated and lost against a different ( 1. * must have actually had a day in court in the first proceeding 2. The second action provides procedural opportunities for the ( that were unavailable in the first suit. but not to be liable because the * breached first. This policy may be overridden by fairness considerations for the * 64 . the first suit was largely about different issues. Same Parties 1. Non-Mutual preclusion can only be used against parties who litigated the issue previously. Generally. etc) courts will bend this rule ii. However. a. Accuracy and finality Determinations not Essential to the Judgment 1. Limitations on ³Non-Mutual´ Preclusion a. The issue of RR¶s negligence. would not be preclusive. and therefore precluded. or where in privity with parties who litigated the issue previously (due process) b. we want to require a review of those issues before we consider them preclusive and determinative c. dissimilar operative facts. A * may preclude a ( from relitigating issues that the ( previously litigated and lost against a different *. burdens on (s and the courts. Where preclusion would be unfair to the ( because: i. 1. because the RR would have been liable regardless of this finding. Offensive Non-Mutual Issue Preclusion i. If forcing a * to add its claims to the prior suit would have been unefficient/unfair (because it would have lengthened the inquiry. the ( could relitigate the issue of its own breach in later suits. In order for a decision to be essential to the judgment. If a RR was found negligent and a driver was found contributorily negligent. a * who could have easily joined himself in the first suit cannot use issue preclusion against a ( to the first suit i. Differences in procedural opportunities in the first proceeding that could cause prejudice to the party being bound by the prior ruling is a basis for not permitting defensive issue preclusion b. 2. Defensive Non-Mutual Issue Preclusion i.

v. Multiple Parties and the Same Cause of Action 1. The * couldn¶t have joined the earlier suit.c. 3. Problems arising from Issue Preclusion a. the losing party should not be precluded by the judgment. this also weighs against preclusion. or that the result would likely be different in a second trial. the judgment should not be given preclusive effect iii. * sued ( for SEC violations. Facts: i. Rules Applied a. this weighs against applying preclusion ii. issue preclusion will not be available ± unless the procedural opportunities would not make a difference. (s had full and fair opportunity to litigate this issue. Parklane Hoseiry Co. issue preclusion will not be available. 2. Shore (#36) a. Generally. if procedural opportunities exist in the second suit that did not exist in the first suit. issue preclusion may be improper 1. ii. The existence of newly discovered crucial evidence not available at the firs trial is a basis for denying preclusion when the evidence could have a significant effect on the outcome iv. Because (s cannot use issue preclusion against *s not a party to the prior suits. percent that ruled one way. 3. If a ( did not have sufficient incentive to vigorously litigate the issue in the first suit. If the circumstances are such that the integrity of an earlier determination is undermined. i. based on the general rules of offensive issue preclusion. This creates a disparity in mass litigation that gives (s a good reason to settle (thereby cutting off preclusive effect of a judgment for *) but removes the incentive of a * to settle (because the *s lawyer may represent the wave of *s who come after a * win). i. they may allow preclusion despite varying verdicts. b. If the court is satisfied that the majority of juries would come out with the same verdict (based on sample size. Where ( shouldn¶t have reasonably seen further suits. jurisdictional rules). Where damages in the first suit were small and ( shouldn¶t have foreseen numerous subsequent suits. The SEC sued ( and won before *s suit went to trial. Issue preclusion permitted. and the ( had notice of the suit by * (as it was pending) and so ( had reason to vigorously litigate the first suit. *s can use (s prior losses as preclusive against the (. it would be unjust to deny the litigant another chance i. When the judgment sought to be used for preclusion is inconsistent with one or more previous judgments. Decision: i. they cannot use prior ³wins´ against later *s. If a prior determination was manifestly erroneous. d. * sought to use issue preclusion for those issues present in both the SEC suit and the *s suit. Balancing Efficiency and Fairness 65 . Where the verdict was the result of a jury compromise. However.

Suit 3: Jury for *. Efficiency is foremost. Therefore.a. Suit 1: Jury for (. 66 . Facts: i. Judge for *. c. Policy being applied is a balance of efficiency and fairness b. At this time. and there is no reason to believe that the verdicts were derived by looking at different information/considering different questions. Decision: i. ( sued by numerous *s for a fire. Because the verdicts were inconsistent. No preclusion. New *s seek to preclude issue of (s liability. it can only be assumed that the verdicts are incompatible. b. Century Home Components (#37) a. preclusion may be barred. Fairness kicks in when one of the above rules shows that there is reason to believe accuracy of the verdicts is an issue. Therefore. 4. State Farm v. a verdict against the ( on an issue may be preclusive in subsequent suits unless it is shown that one of the rules above applies. preclusion is unfair. Suit 2: Jury for (. remanded.




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