CIVIL PROCEDURE OUTLINE—TABLE OF CONTENTS

PERSONAL JURISDICTION 2

TWO STEP MC TEST 6

SUBJECT MATTER JURISIDCTION 8

DIVERSITY 8

FEDERAL QUESTION 9

SUPPLEMENTAL CLAIMS, PARTIES, 11

AND REMOVAL

REMOVAL 13

ASCERTAINING THE APPLICABLE 14

LAW—STATE OR FEDERAL

BYRD BALANCING TEST 16

DOCUMENTS 19

PLEADINGS 19

ANSWERS AND MOTIONS 22

JOINDER 24

DISCOVERY 28

SUMMARY JUDGEMENT 30

JNOV—JUDGEMENT AS A MATTER 32
OF LAW
MOTION FOR NEW TRIAL 34

RES JUDICATA 36

Claim Preclusion 37

Issue Preclusion and Mutuality 41

BRINGING A LAWSUIT IN CIVL COURT:

Claim: not juvenile, tax, surrogacy, probate, etc. related.  State or Federal trial level?

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Cause of action is about a federal question  SMJ: Federal trial court
Cause of action is not FQ: are the parties diverse? Is the amount-in-controversy more than
$75k?
If yes to bothfederal trial court.
If no to one or both State trial court.

SOURCES OF LAW
Enacted law:
 United States Constitution
 Federal Statutes
 Federal Rules of Civil Procedure
Case law:
 Judicial decisions interpreting enacted law
 Common law: law developed by courts when there is no statute

PERSONAL JURISDICTION
The overall term (specific, general, long-arm all fall within this overarching category).
The power of the court to enforce a judgement over the defendant(s).
PJ is waived once the Def. appears (consents to suit). To avoid consent—special appearance.
What’s required? Power (Statute) and fairness (Const.)
1. Notice: service of process either by mail, physically, personally, or attachment of land.
2. Basis: State Statute governing the CoA activity giving PJ. The facts applied to the statute
must comply with Due Process.

1) IN PERSONAM: PJ on the basis of def is there—

a. Consent: def. voluntarily appears—will always satisfy PJ.
b. Residency: of the forum—will always satisfy PJ.
c. Physical presence: def is in forum
Transient presence—present in forum for a short amount of time then
served ex. Burnham
d. Def is personally liable for paying out any judgment from their own
resources.
2) IN REM: PJ based on the defendant’s property owned within the forum and court
determines the statute of that property. Apply MCT, should always satisfy PJ.
a. The CoA must be about that property. Ex. Pennoyer lower court.
i. Ex. Hanson v. Denckla—two suits were going on. FL wanted to enforce
judgement over a DE trustee bank and DE said no PJ. SCOTUS held that
DE had no MC and thus Due Process was not satisfied, FL did not have
PJ.
1. Rule: if the def has interest in the benefits under the forum and
purposefully availed themselves to the forum there would be PJ
after the MC test is satisfied. When applying minimum contacts
test- def. must commit some act that makes themselves
purposefully availed (at home) to the benefits and protections of
the forum states laws. Look at defendant’s contacts within forum
state and nature/quality of those contacts.

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 2. Takeaway: sovereignty is a threshold factor. The def never
benefited from the forum and had no min. contacts so there was
not PJ. *Note: the quality and nature of the contacts is added to
the test.
b. The court will determine the status as real or personal property.
c. If there is one, judgement is satisfied by attaching the property.
3) QUASI IN REM: PJ based on defendant and the CoA is about his activity in the forum
and the property is attached for judgement and limited to the value of the property.
Apply MCT, will not satisfy PJ if CoA not about property.
a. Def owns property in the forum, but the CoA is not about the property itself—
i. Ex. Pennoyer v. Neff—Neff had title to land under DLOR, he hired
Mitch. to be his attorney to expedite the title process. Mitch. sued Neff for
legal fees and had his property attached for judgement (ex. Quasi in rem).
Neff did not own this property at the time of attachment and so none of the
four ways of est. PJ were satisfied. For Quasi in Rem it should have been
attached at the start of suit.
1. Rule: 4 ways for personal jurisdiction: 3 in personam a) If Def.
voluntarily appears (consents); b) If Def. is found within state
(presence); c) If def. is a resident of the state (residence); or d) If
def. owns property within the state (in rem –about the property
itself and quasi in rem—about someone or something else and
property used to est. PJ and pay judgement).
2. Takeaway: four ways to establish constitutional PJ of
nonresidents. Here we see number 4, which was not upheld to be
constitutional.
ii. Ex. Shaffer v. Heitner—shareholder derivative suit; plaintiff sued 20+
officers and stockholders for their liability from not protecting a subsidiary
from harm. In order to get PJ he filed a motion to sequester the stocks.
Once granted, this gave the court PJ (quasi in rem) over the defs. But the
higher court reversed since the stocks were not the CoA.
1. Rule: Int. Shoe test must be applied in rem and quasi in rem.
Treated the same as in personam. The Defs were not in DE, no
business, etc no Minimum Contacts so no PJ.
2. Takeaway: you cannot assert in personam/quasi in rem
jurisdiction over defs who have no MC with the forum it violates
Due Process.
a. *Note: MC Test must be applied and must show sufficient
contacts, property alone is not sufficient.

EVALUATING THE RELATIONSHIPS OF DEF. IN FORUM:

1. Resident: lives in a place and you can have multiple.
2. Domicile: where you intend to remain. You only and always have one.
3. Citizen: under the Constitution and laws of the jurisdiction, is a member of a political
community, owing allegiance to it and entitled to full enjoyment of the rights within it.
a. Ex. I am a resident of TX and NY; domiciled in NY; and a citizen of TX, NY and
USA.

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 4. Principal place of business: SCOTUS held in 2010 a corp. has its domicile where the
corp. has its “nerve center/home base” or where the decision making takes place, the
CEO location etc.

-Systematic + CoA arises from contact in forum  Yes, PJ (general) ex. Int. Shoe
-Systematic – CoA did not arise form contact in forum  maybe (general) ex. Goodyear
-Isolated + CoA arises from contact in forum  maybe (specific) ex. Gray v. Radiator
-Isolated – CoA does not arise from contact in forum  no PJ. Ex. WW Volks.

GENERAL JURISDICTION: presence established one of five ways. Consent, Residency,

Land Ownership, Physically found, and later the continuations/systematic contacts of a fair
quality and nature that satisfies Due Process:

SPECIFIC JURISDICTION (Long Arm Laws): Def. has a very isolated (or little) contact
with forum but the CoA plaintiff is bringing, arises out of that specific contact.  Sporadic and
isolated contacts.
Allow for jurisdiction over the nonresident defendant’s
(1) general activity within the state; or 
 arises out of the contact within jurisdiction
(2) the commission of any one of a series of enumerated acts within the jurisdiction; or 
(3) the commission of a certain act outside the jurisdiction causing consequences within it

What’s required?
1.Sovereignty: a threshold factor; purposeful availment to the benefits of the forum’s laws.
2.Convenience: balancing test.

ESTABLISHING THE MINIMUM CONTACTS TEST Interests of the forum (protect

citizens and regulate conduct), plaintiff (economically more feasible, witness, etc.) and def.
(same as P)—

1. Consent to service of process (General)

2. Resident of the forum (General)
3. Presence physical or transient:
Ex. Blackmer v. US (1932): the court asserted PJ on the basis of “presence” because the
Def. was a US citizen, domiciled in the US and was found/personally served [elsewhere].
Presence does not mean actually physically present.
Rule: Being a US citizen, domiciliary of US, and personally served is enough to
make the def. “physically present.”
Ex. Milliken v. Meyer (1940): court expanded “presence” from Blackmer—because the
Def. was domiciled in WY and found/personally served [in CO] PJ was correct, Def. did
not consent, was not physically present, was not a resident, and did not own property
but WY had a statute for out-of-state service.
Rule: personal service was enough because he was domiciled in the forum
regardless of being absent at the time of service.

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 Ex. Burnham v. Superior Court—def was served when he was om CA visiting his
children. He claimed insufficient contacts to establish PJ with the forum. The court relied
on traditional General jurisdiction presence and interpretations of Shaffer and Int. Shoe.
Rule: physical presence is enough to satisfy the basis for PJ to be served with
process. He purposefully availed himself to the forum (sovereignty factor) and
was physically there (convenience).
Takeaway: if transient presence is intentional, voluntary and knowing then it
satisfies Due Process for PJ.
Ex. Internet: Zippo—establishes a sliding scale to test whether personal jurisdiction can
be constitutional in internet cases:
Active: (purposeful availment) If def. enters into contracts with residents of a
foreign jurisdiction that involve the knowing and repeated transmission of
computer files over the internet-PJ is proper.
Interactive: Sites where a user can exchange information with the host computer.
In these cases, personal jurisdiction is determined by examining the level of
interactivity and commercial nature of the exchange of information that occurs on
the site.

4. Systematic and Continuous Contacts in Forum (General) and does not have to give rise to the
CoA.
Ex. International Shoe—agents of Def. were salesman in WA, they rented businesses
for showings and solicited sales to be shipped in. Def. was incorporated in DE and had its
main place of business in OH. They did not pay into WA Unemployment for several
years claiming they were not a business of WA and thus no PJ could be established.
Rule: “Presence” is not doubted when there is continuous and systematic activity
by the corp. satisfying sovereignty and convenience. MC Test required.
Takeaway: Required that certain minimum contacts within forum must be met to
maintain fair play which was established here by a qualitative test rather than the
previous quantitative test. This added a 5th way to establish personal jurisdiction
(in personam) on top of the four from Pennoyer. PJ was constitutional here as an
expansion of the presence category.
5. Cause of Action arises from the Def. Contact within the forum (Long-Arm Laws and
Specific):
Ex. Gray v. Radiator—tort for negligent manufacturing and construction of a water
valve. The Manuf. Corp is incorporated in OH and occasionally their constructed valves
reach the IL stream of commerce from sales out of PA.
Rule: there was a state statute governing tortious acts and this combined with the
McGee analysis of MC Test and def. interest in availing themselves to the forum,
satisfies Due Process.
Takeaway: if there are both State Statutes and the facts satisfy a MC test by way
of def. interest (purposeful availment entering stream of commerce) then due
process is satisfied, and PJ is enforceable. Stream of Commerce Theory.
Ex. Keeton v. Hustler Magazine: P was resident of NY, D Hustler magazine was an
Ohio Corp, P brought libel action in federal court in NH.

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 Takeaway: Lower court found no PJ bc P had no contact with NH. S. Ct reverses,
finding D had sufficient contacts- monthly sales of magazines in the thousands.
Test is D’s contacts, not P’s.
Ex. Kulko v. Superior Court (1978): P was resident of Cal, brought action for
modification of child support agreement in Cal against D who was a resident of NY.
Takeaway: Cal court found PJ over D because D had sent daughter to live with
mom in Cal, thus purposefully availing himself of the forum. S. Ct reverses,
finding no PJ, not sufficient contacts.
Ex. Calder v. Jones (1984): P was an actress who lived and worked in Cal, brought a
libel action in Cal court against D National Enquirer, which had a large distribution in
Cal and the writer and editor of the magazine who was a resident of Florida.
Takeaway: Lower court found no PJ over the writer and the editor. S. Ct.
reverses, finding PJ because Cal was the focal point of the story and the harm
suffered. The Florida conduct had “effects” in Cal.
Adam v. Saenger:
If P brings suit in forum, they have no other connection to, if D asserts
counterclaim against D, PJ can be found over P for consenting to the original
action in forum. “It is the price which the state may exact as the condition of
opening its courts to the plaintiff.”

STEP I:
MUST BE AUTHORIZED BY A STATE STATUTE:
Ex. Int. Shoe
Ex. Hanson v. Denckla
Ex. McGee—the inheritor of a life insurance policy issued in CA but incorporated in TX
sued to claim the policy. The issue is whether the contacts of the def. and deceased were
sufficient to satisfy the constitutional minimum contacts test under Due Process. The
contacts included correspondence and payment by mail from deceased in CA to
Insurance Corp in TX.
Rule: there must be sufficient minimum contacts of a quality and nature that
establish and satisfy due process. A State Ct. has PJ of another State Co. if the Co.
has substantial connections. (Convenience balance test; the forum’s interest were
so strong it did not matter that def did not foresee a suit because they should have
foreseen it by doing business w the guy).
Takeaway: There were very isolated and few contacts but the cause of action
arose out of those contacts (the validity of the insurance contract) and thus the
claim was valid and does not violate Def. due process rights. *Note: the most
important interest is the forum.

STEP II:
EXERCISE OF PJ MUST BE CONSTITUTIONAL (DUE PROCESS):
Rule: the traditional notions of fair play and substantial justice must be satisfied.
Part 1: Sovereignty:
Ex. Gray v. Radiator

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 Ex. Goodyear Tire—a tire on a bus abroad exploded and two children died. Their
parents brought a negligence suit in NC state. GY did not have any businesses, agents nor
retailers in NC and the tire was made abroad that was in the accident.
Rule: the CoA must arise from the def. activities within the forum and they must
have purposefully availed themselves to the stream of commerce in the forum to
have systematic and continuous activity in the forum that are fair play and
substantially just. Must be so systematic & continuous that they are “at home” in
the forum.
Takeaway: Purposeful availment: the corporation must be domiciled,
incorporated, have its principle place of business in the forum or have such
continuous and systematic activity to render itself “at home.” Ex. Perkins and
Helicopertos (mere purchases on forum even at regular interval are not enough for
PJ).
*Note: The connection between the corp. and forum must be so
continuous and systematic in order to entertain claims unrelated to the corps.
contacts with the state. The lower court was wrong for apply specific juris. this is
general.

Ex. Asahi Metal—P was in an accident in CA but sued for a defective manufactured tire
which happened abroad in Taiwan. The def did no business in CA, had no agents and no
stores but sold their tires to retailers who likely did do business in CA and they knew this.
Rule: Must purposefully avail themselves to forum benefits and the privileges of
conducting business there.
Takeaway: Awareness that your products might enter the stream of commerce of
a forum is not enough without some other activity (advertisement or services) to
satisfy MC. There was not sovereignty (purpose availment) and they did not test
convenience factor. Sovereignty is a threshold factor.

Part 2: Convenience:
Ex. Hanson v. Denckla
Ex. WW Volks—P’s bought a car in NY and drove cross country moving to AZ on their
way they got in an accident in OK and suffered severe injuries due a defective gas tank
and installation. They sued for negligence on the NY manufacturer.
Rule: if there are no other products in the forum other than the one in question,
and the corp. is not doing business there, has no agents and no home base in
forum there are no sufficient MC for purposeful availment.
Takeaway: there must be a reasonably foreseeable reason for a suit to come about
in the forum; purposeful availment or some intent/chance to enter the stream of
commerce. *Note: Foreseeability alone is also not enough, they must satisfy the
MC test with the forum.

THE MINIMUM CONTACTS TEST:

1. What is the issue?
2. Was there notice?
3. What is the State Statute governing the issue and what does the Statute allow?
4. What is the basis for Personal Jurisdiction here?

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5. Does the basis satisfy Due Process? What is the standard?
6. How do we determine if that standard is satisfied?
7. What are the facts that support that analysis of the standard?
8. What is the conclusion?

SUBJECT MATTER JURISDICITON

Determining SMJ in Federal Court:

Article III § 2 of the Constitution—gives federal courts the power to hear certain cases. Federal
courts are courts of limited jurisdiction. They only have the power to hear cases that fall within
the basic grant of subject matter jurisdiction in the Constitution.
 The grant of jurisdiction in 28 U.S.C §1331 is justified:
1. To promote the uniformity of federal law.
2. Encourage judicial expertise in interpreting federal law.
3. Protect against possible state court hostility to claims arising under federal
law.
 The existence of an alternative forum forces state courts to give a more attentive
treatment to claims of federal right.
 Plaintiffs burden to demonstrate that there is subject-matter jurisdiction.
 SMJ is never waived.
o Sua ponte—the court can bring it up at any time in the suit, there is no time
specific restraint to demonstrate SMJ.
o Unlike PJ, if someone doesn’t make a special appearance, it’s established that
they consented and any later claim for lack of PJ is waived—PJ must be brought
up right away. SMJ is never waived, it can be brought up whenever, at any time.
FRCP 12h3.

Ways to get Federal SMJ:

1. DIVERSITY OF CITIZENSHIP—28 USC §1332. The District Courts shall have
original jurisdiction of all civil actions where the matter in controversy exceeds the sum
of $75k and is between:
a. Citizens of different states; [NY vs. CT].
b. Citizens of a state vs. citizens or subjects of a foreign state; [NY v. England].
c. Citizens of different states and in which citizens or subjects of a foreign state are
additional parties; [NY, England v. CT]. or
i. Ex. Mas v. Perry: Jean Mas (FR) and Judy Mas (MS) were both graduate
assistants pursuing coursework and teaching for about nine months in
(LA). After they got married, they moved back to BRLA to resume their
duties at LSU. While in BRLA after their marriage they rented an
apartment from Def. Perry (LA) for two years. They sued for damages
incurred as a result of 3 months of Def. peeking on them through two-way
mirrors installed in their bedroom and bathroom.
1. Rule: Strawbridge: No one party may be a citizen of the same state
as any part in the other side. 28 USC §1332 a natural person must

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 be both a citizen of the US and a domiciliary of that state for
diversity purposes, citizenship means domicile, mere residence is
not sufficient.
2. Takeaway: there is no precedent for extending the husband’s
foreign citizenship to the wife (MS) here as he resides in the US
and she is a citizen here. Her marriage to an alien does not mean
she loses her US citizenry. The suit was diverse.
d. A foreign state as plaintiff and citizens of a state or are of different states. [UK v.
NY].
i. Strawbridge Rule: no parties across the v. can share the same state.
ii. How do you figure out if the lawsuit fits within the amount-in-
controversy?
1. Plaintiff has the burden of showing the amount in controversy is
met.
2. The sum claimed by P is accepted unless it appears to a legal
certainty that the claim in insufficient.
a. Ex. AFA Tours v. Whitchurch: Def. Whitchurch was
working for AFA Tours for 17 years. When he left to start
his own tour business, AFA brought an action against him
for misappropriation of trade secrets. AFA Tours is an elite
travel touring business that does tours in AUS, NZ, and NG
and this is where Whitchurch wanted to market his business
as well using client info and knowledge from his time at
AFA.
i. Rule: 28 USC §1332: sum claimed is excess of
$50k and made in food faith; dismissal only
justified when it appears to a degree of legal
certainty that the claim is really for less than this
amount.
ii. Takeaway: The court must afford the plaintiff an
appropriate and reasonable opportunity to show
good faith in believing that a recovery in excess of
the jurisdictional amount is reasonably possible. 
the lower court erred in ignoring this and by
dismissing it without legal certainty.
3. If the claim involves equitable relief, the value is either the cost to
D or the benefit to P, whichever is higher.
4. Punitive damages can be counted if allowed in the jurisdiction, but
costs and fees are not counted.
iii. Rules for aggregating amounts
1. If one P and one D, P can add multiple claims together to satisfy
the amount
2. If multiple Ps and no claim reaches the amount, cannot be
aggregate
3. If multiple Ps and one P reaches the amount, the other P’s claim
can come in

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 4. If one P and multiple Ds and no claim reaches the amount, cannot
be aggregated

2. FEDERAL QUESTION—28 USC §1331. The District Courts shall have original
jurisdiction of all civil cases arising under the Constitution, laws, or treaties of the United
States. (See also §§ 1334, 1337, 1338, 1343, 1345, 1346: admiralty, bankruptcy, patent
law, antitrust, IRS, etc.). § 1331: the general statute. The language is similar to the Const.
Article III but this is where we will spend time digesting “arising under.” What does this
mean to the courts?
a. Osborn v. US: the court’s jurisdiction extends not only to this federal question
but also to the entire case (the Const. permitted the courts to hear these cases
arising from a fed. Question). It is more limiting than what the Const. allows.
b. The federal question must appear on the face of a well-pleaded complaint.
i. [Ex. Louisville & Nashville RR Co. v. Mottley]: The plaintiffs were
supposed to have free lifetime transportation passes as part of a settlement
from a previous personal injury suit on defendant’s railroad. When they
were no longer receiving their passes because a law had passed prohibiting
free rides, they sued in federal court. The law was 34 Stat. at L. 584 and
plaintiff’s sued on allegations that the Act passed does not prohibit such
free passes under their circumstances (contract) and that this violated their
5th amendment rights of Due Process because it deprived them of their
property.
1. Rule: Tenn. V. Union Bank and Boston v. Montana: it is not
enough that a Federal question might or probably will arise in the
course of trial that the cause of action failing to arise out of federal
question issue satisfy SMJ. The federal question must appear on
the face of a well-pleaded complaint.
2. Takeaway: plaintiffs have the burden of alleging a federal
question and establishing SMJ arising from their CoA when they
file the complaint.
c. The cause of action must be about the meaning or application of federal law
or the cause of action must be created by federal law.
i. Look beyond what the complaint actually says to see what the lawsuit is
really about (it cannot be a defense or a federal question that is not
essential to the elements of the cause of action).
1. [Ex. TB Harms v. Eliscu]: §1338: Patent, Copyrights, etc.: Fed.
Courts exclusive jurisdiction on patents and copyrights. Original
copyright holders renewed years later except Eliscu, all had
previously re-assigned their rights to plaintiff. Eliscu brings a CoA
for a declaratory action in state court. And Harms brings an action
in NY federal district court to take those copyright holdings from
Eliscu on the grounds that he previously did re assign his.
a. Rule: American Well Works—J. Holmes’ formula: creation
test—cases which clearly are within the scope of USC §
1338 but depend only on some point of fact and require no

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 construction of federal law are not within the explanation
of federal question jurisdiction.
b. Takeaway: No SMJ because this is not a patent/copyright
lawsuit, it’s a lawsuit about ownership of those things and
that is property law. Property was created by federal gov
but the suit itself is not about the patents and copyrights it’s
about who owns them.

SUPPLEMENTAL CLAIMS, PARTIES, AND REMOVAL

What is Supplemental Jurisdiction?

There is a basis for subject matter jurisdiction but only for one claim in the lawsuit. Governed by
U.S.C 28 §1367.
Statute 28 USC §1367:
(a) codifies (put into code) the authority for extension of jurisdiction past Finley’s holding that
supp. Juris couldn’t apply unless there was a statute, so here is their statute—where district court
claims had original (Diversity or FQ) jurisdiction and as long as they form the same
case/controversy. There will be supp. J if adding a claim or adding a party as long as those
claims are so related to the claims in the original jurisdiction action. Exceptions:
(b) Kroger holding—if org. juris. is based on diversity, there is no supp. Over additional
parties or claims by P if adding them would destroy diversity.
(c) Gibbs test—discretionary step to decline supp. Juris. if
(1) novel or complex issue of State law;
(2) state claim substantially predominates over the claims which the court had
OGJ;
(3) District court dismissed all claims which they had OGJ over; or
(4) exceptional compelling circumstances. Ex. Executive Software.

Pendent jurisdiction: when P in their complaint added a claim lacking an independent basis for
Federal juris. to a claim that had that basis already. (giving the fed. Court power to hear a case
they normally would not). Pendent claim jurisdiction: plaintiff adds a state law claim to a
federal law claim against the def. you can have Supp. Juris. over the state law claim in this
situation but it is still discretionary.
Ancillary jurisdiction: when either P or Def. inject a claim lacking an independent basis for
federal juris. by way of a counterclaim, crossclaim or third-party claim. (giving the fed. Court
power to hear a case they normally would not).

How is it decided? If there is no original jurisdiction over a claim or a party, see if the claim is
part of the “same case or controversy/common nucleus of operative facts as the claim that has
SMJ.
 If there is no original jurisdiction over a claim, see if it is the same nucleus of operative
facts as the claim that does have SMJ.
o [Ex. United Mine Workers of America v. Gibbs]: P. was hired under TN
Consolidated Coal Co.’s subsidiary Grundy Co. Grundy gave P, Gibbs, a contract
to haul coal from the mine that was closed by TCC. On the dates of hauling, the
labor union 5881 forcibly stopped and closed the mines so there could be no haul.

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 They went on strike. Gibbs later lost his job and he claims it was a concerted
union plan against him.
 Rule: Look to the claims, do they come from a common nucleus of
operative facts? If they do then the federal court still has the power to hear
the state claim. Even though it has this power to hear this state claim, the
court still has the discretion to not hear. When making this determination
there are four things to consider: the economic judicial burden of hearing
more claims, the possibility of confusion of juries if they try these claims
together, and if the predominating issue is state then it’s not valid to be in
federal court.
 Takeaway: Gibbs application: the district court did not abuse their
discretion hearing the state claim but reversed anyways because the merits
of the claim were invalid, but not because the court didn’t have SMJ, they
did even after the dismissal of the federal claim.
 Determine whether the main claim is based on FQ or Diversity.
 If based on Diversity, no Supplemental Jurisdiction if joining the party (under Rules 14,
19, 20, 24) would destroy diversity. § 1367(b).
o Aldinger: P (WA) v. D (WA) on a federal question claim. P v. D, D (for another
claim that could not be brought in under state law.)
 Takeaway: SCOTUS said differs from Gibbs because adding a party is
diff from adding a claim and in order to add a party there must be
original SMJ over that party separately. It could exist in other contexts.
o Owens v. Kroger: P (Iowa) v. D (Nebraska) for negligence CoA. Diversity no
issue so far. The def then filed a third-party complaint against Owen (Nebraska).
The original def. is removed after the third-party complaint was verified and now
it is P v. Owens.
 Takeaway: The plaintiff could not have originally brought the claim
against Owens because they are both citizens of Iowa and thus not diverse.
 If based on FQ, or on Diversity that won’t be destroyed, evaluate discretionary factors
in §1367(c) to determine if court should hear it. District courts may decline to exercise
supplemental jurisdiction over a claim under subsection (a) if:
o The claim raises a novel or complex issue of state law.
o State claim substantially predominates over the claim or claims over which the
district court has original jurisdiction.
 Finley: P v. D. with federal claims and then amended her complaint to add
state law claims on the city and other def.
 Rule/Takeaway: The amendment was not allowed, no claims
allowed against state entities. All supp. Jurisdiction is imperiled if
none of the statutes allow it. Congress can change this though. And
they accepted this invitation in 1990 when enacting Supp.
Jurisdiction statute. §1367.
o District court had dismissed all claims over which it had original jurisdiction.
o In exceptional circumstances there are other compelling reasons for declining
jurisdiction.
 [Ex. Executive Software NA, Inc. v. USDC]: Plaintiff sued def. in State
Court of CA on 2 federal CoA and 3 state law CoA. The Def. petitioned

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 for removal to the Federal court based on the two federal law claims. The
district court remanded the 3 state law CoA down to state court and the def
appealed for a writ of mandamus (a court order) for the District court to
retain the state law related claims.
 Rule: §1367a: a court can decline to assert supplemental
jurisdiction over a pendent claim only if one of the four categories
specifically enumerated in §1367c (Gibbs values) applies. §1367c:
unless a court properly invokes a §1367c category in exercising
the courts discretion to decline to entertain pendent claims,
supplemental jurisdiction must be asserted.
 Takeaway: subsection c4 requires the district court not only to
determine IF consideration of the Gibbs values provides
compelling reasons for a remand but ALSO to articulate how the
circumstances that warrant declining jurisdiction are exceptional.

*Note: Although Gibbs identified a number of concrete instances in which declining pendent
jurisdiction normally would be appropriate, the ultimate inquiry for the courts remained whether
the assertion of pendent jurisdiction “best accommodates the values of economy convenience,
fairness and comity.”
REMOVAL JURISDICTION

REMOVAL—The procedure that allows a suit filed in state court to be transferred to the federal
court by defendant. This gives the def., who has already been sued in a court with PJ and SMJ
over him, to select the forum and switch it from state to federal. Protects out-of-state defs from
local prejudice. Gives them the right to determine what types of claims the fed court will hear.
But mostly it is strategic, defs think they will have a better chance in federal court.
Who can Remove? Only the original defendant has the right to remove.
[Ex. Shamrock Oil & Gas Corp. v. Sheets]: Petitioner appealed a decision of the United
States Circuit Court of Appeals for the Fifth Circuit, which reversed a judgment in favor
of petitioner on respondent's state-court counterclaim for breach of contract, on grounds
that petitioner was a state-court plaintiff and therefore could not have removed the case to
federal court.
Rule: A counterclaim does not allow plaintiff to remove. Only original
defendant can remove.
Takeaway: The Court held that although the removal statute at times had been
liberalized to allow removal by either party, Congress was aware of the history of
the statute and would have used appropriate language if it had intended a different
construction than the one the Court adopted which removed all references to
plaintiff.
Goals of removal: to promote litigant equality and protection from the threat of local bias.
1. Removal is governed by U.S.C. § 1441, 1446, and 1447
o (a)- must have original jurisdiction in the first place.
o (f)- derivative removal jurisdiction.
o Defendant has 30 days to remove after receiving initial pleading- 1446(b)
o Diversity never longer than a year—1446(c)
o Plaintiff has 30 days to file a motion after the removal is filed- 1447(c)

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TEST FOR REMOVAL JURISDICTION-
2. First, look to see if the case could have originally been brought in federal court (SMJ
under FQ or diversity)
o If yes, then it can be removed, unless:
 SMJ is based on diversity, and any defendant is from the forum state
 Any defendant objects to removal (all must agree)
 Removal is not timely (30 days after receipt of the pleading).

ASCERTAINING THE APPLICABLE LAW—STATE OR FEDERAL

History before the adoption of Erie and its progeny.

Judiciary Act 1789: Congress set up federal court system.
 The Process Act: actions of law and actions of equity used to be separate—fed courts
have to follow the procedures (ex. Paper to use, days to bring complaint, what needs to
be in the complaint) of the state court, in which they sit, as they exist there. Federal
courts were still using old state court procedures as the state’s progressed. In 1872 they
changed it so the fed courts would continue using state procedures but updated with the
times and adaptations.
 The Rules of Decision Act: governing the substantive law—the elements of a crime, the
definition of standards, what constitutes a breach or consideration. Bodies of law that
deal with requirements of a CoA. “follow the law of several states” what does this mean?
Swift v. Tyson addresses this.
 Swift takeaway: federal court is not required to follow state common law, but it does
have to follow their statutes if there is one that applies.
o The Rule of Swift v. Tyson: When determining if the district courts should apply
local state judicial interpretations in commercial matters involving more than one
state, they have read the Judiciary Act to mean that local statutes/laws are only
used when the issue before them is focused on a statute/local law itself. When
there are general commercial matters at hand like real estate or a contract, the
district courts will interpret principles of the commercial law as it sees fit. This is
important because local case laws often change, can be reversed or were ill-
founded and this will eliminate following them just because they were of the local
authority.
o Held: fed court did not have to follow NY Common Law of consideration for
negotiable instruments; it only had to follow state law if there was a statute. This
let fed courts create their own law under their own discretion. Issues: fed common
law expanded to be huge, made easier for corp. litigants to gain fed court access
in diversity (they didn’t have a “home base” rule yet) i.e. forum-shopping.
 About 100 years later comes Erie v. Tompkins.

1. Erie R. Co. v. Tompkins: Tompkins was walking on a permissive pathway parallel to

Erie RR when a door of a train car was sung open on the passing train and hit him. His
injuries resulted in the loss of his arm. Tompkins was a citizen of PA and the RR CO.
was incorporated in NY, so he decided to sue in federal court to avoid the harsher statute
governing negligence in these CoA’s under PA state law. He sought district court using

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 the Swift rule to apply a “general law” governing this activity rather than state. under PA
negligence common law—Tompkins was a trespasser and Erie could not be liable for his
injury but in federal law and NY it is less rigid and ordinary negligence common law
leaves a possibility of compensation even when trespassing. He only needed to show Erie
deviated from the standard of care and not willful/wanton/recklessness. Under Swift—
general federal common law should apply
a. Rule: the state law should apply when there is not an issue of constitutional
or congressional acts or matters. Why? Swift did not bring about uniformity, it
was impractical and ineffective.
b. Takeaway: This overruled Swift. How? Erie Doctrine: if you have state
substantive issues and state substantive law that is governed by state law, whether
a common law or statute. If it is a federal issue it is governed by federal
law/statutes. If the issue is procedural that is governed by federal law. *Note:
FRCP came out this year (1938).
i. Swift—for substantive issues, Fed court applies its own fed decisional law,
but must apply state statutes if applicable. Swift did not address procedural
issues at the time, they followed state.
ii. Erie—for substantive issues, if the issue is federal it is governed by
federal law. If the issue is a state issues, it is governed by state law (state
statutes and state common law). Procedural issues governed by federal law
FRCP. –rationale was two-fold: get rid of forum shopping and creating
uniformity of laws between state and federal levels.
iii. Twin Aims of Erie: The body of federal common law became so large it
was unmanageable. It also encouraged forum-shopping. Swift itself was
also unconstitutional.
Next issue  how do we decide what is substantive and what is procedural?
o Ex. Procedural: paper, how many days, legal backs, etc.
o Ex. Substantive: elements of a tort, contracts consideration, etc.
o Ex. Statute of limitations vs process? How do we decide which it is? That’s next.

2. Guaranty Trust Co. v. York: The Guaranty Trust Co. had served as a trustee for some
noteholders of Van Sweringen Co.. Petitioner here is York the plaintiff from below.
When GTC was experiencing financial hardship they created a plan to offer money and
shares for the noteholders. York sued for breach of fiduciary duty in federal district court
because the same suit would not be allowed in NY state court as the statute of limitations
had run out.
a. Rule: Statute of limitations is procedural so applying Erie, this should follow state
law and be barred from suit since the SoL has run. Erie is not a black and white
dichotomy. But if the law is going to change the outcome of the case, then it is
substantive. If it won’t change the outcome, it is procedural. THE OUTCOME-
DETERMINATIVE TEST.
i. If you applied state law the outcome would be—State SoL has run and the
case is dismissed.
ii. If you applied federal law the outcome would be—not dismissed and
litigation can continue.

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 iii. If the outcome is impacted, the law is substantive.  under Erie, apply
state law.
iv. If the outcome is not impacted, the law is procedural.  under Erie, apply
fed law.
b. Takeaway: After Guaranty Trust—this is how the court has construed how to
determine if state or fed law should be applied.
i. Always state law getting applied now and fed law is becoming minute, the
balance of powers is shifting in a disproportionate manner. As a result,
Byrd decision comes out.

*Note: If a case comes in to fed court under FQ then federal law should be applied under Erie.
BUT another claim attached to it through supplemental jurisdiction could potentially be a state
law claim and then a whole Erie analysis must be applied.

3. Byrd v. Blue Ridge Rural Electric Corp, Inc.: Plaintiff sued his employer for
negligence after injury on the job. The employer argued that this suit is barred under state
law and the plaintiff can only seek remedial statutory compensation benefits for it instead
of a lawsuit in federal court.
a. Rule: Guaranty Balancing Test created:
i. What is the state’s interest in applying state law—what is the policy
behind their law?
ii. What is the fed court’s interest in applying fed law—what is the policy
behind their law?
iii. If we apply one over the other, is the outcome of the litigation likely to be
affected?
b. Takeaway: State does not have a strong interest in judge vs jury matter based on
precedent. Fed court has a very strong interest in applying its law re: judge vs
jury. Will this affect the outcome? Not really. If we apply fed law and a judge
hears it or fed law and jury hears, there is still a judge and it is not likely the
outcome would be affected. Since the fed law has a strong interest and this is not
outcome-determinative, the balance leans towards it being a procedural issue 
federal law should be applied = then heard by jury.

*Note: Erie addressed forum shopping so here SCOTUS is wondering: Did the plaintiff choose
fed over state court because it knew there would be a different outcome in one vs the other? This
is what we mean by the outcome-determinative test: when applying the OD Test, look to see if
the differences in the law influenced the plaintiff’s choice of forum in the first place (twin
purposes of Erie-will the use of one law or another lead to forum shopping or the inequitable
administration of laws?)

Hanna carves out a special niche for FRCP. The FR must cover the rule in dispute on point
where directly governed. When the Rule is silent we use Byrd Balancing.
Walker looks at situations where choice of law is between FRCP and state law.
What is the test when choice of law involved FRCP?

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1. is FRCP legitimate? Can only promulgate rules that do not touch substantive rights. Answer
will always be yes because they were issued by Supreme Court under authority of the Rules
Enabling Act).
2. is there legitimate FRCP directly on point? Rule must be narrowly applied. If yes the FRCP is
applied. If FRCP is not directly on point, or is silent, go back to Byrd balancing.
 If there is a direct clash between the state statue and the FRCP, then the FRCP prevails,
always.

4. Hanna v. Plumer: Auto accident in MA. Def. is deceased, his executor of his estate is
sued on his behalf. P (OH) v. Def (MA, deceased) under diversity in federal court for
negligence. Service was made by leaving copies with executor’s wife at his residence—
this was a proper way of service in compliance with FRCP. Statute of limitations is tolled
when complaint is filed and no requirement of in hand service to toll SoL. Under MA
state law, there was a requirement of in hand service on executor to toll the SoL. Under
MA the SoL ran. Def. files MSJ and it was granted since the MA SoL ran. Under Byrd
the district court would dismiss the case siding with state law and the def. the circuit
court affirmed this. SCOTUS on writ of cert. decides the following:
a. Rule: it’s not really looking after-the-fact about the outcome, if it will be affected.
We need to look at the difference in the two laws earlier to see if this is the
reason, or part of, why plaintiff chose fed court (were they forum-shopping)? The
whole reason we had Erie and the goal of it was to avoid forum-shopping, we still
need to honor that.
b. Takeaway: Ultimately decided if substantive—state law applies and if procedural
—fed law applies.

What happens when the choice is state law vs FRCP? If this is the choice—the test is
different.
Walker: Look to see whether the FRCP is a legitimate rule. The rules enabling act made FRCP
always legitimate. Answer is always yes, the legislature was given power to create this. Next,
whether this legitimate rule is directly on point with whatever the state law is going to be. Do
they clash? If yes, then procedural and FRCP applies (Hanna progeny). But if they don’t clash
or it’s not a direct clash—Byrd analysis must be done (state interest fed interest, and OD Test).

5. Walker v. Armco Steel Corp.: Nail was designed negligently which caused it to shatter
and cause injury to plaintiff. Negligence suit in manufacture and design of the nail. The
district court dismissed the complaint as barred by OK statute of limitations. They
concluded the OK Stat. was an integral part of the SoL and state law should be applied.
The Circuit court affirmed concluding this statute was in direct conflict with FRCP Rule
3 and the court should be constrained to follow state law. SCOTUS granted cert and
affirmed.
a. Rule: Where FRCP is directly applicable the Hanna test should be used to
determine whether the Rule was within the scope of the Rules Enabling Act and if
it was then it was within the constitutional grant of power necessary. But where
the scope of the FRCP Rule in fact is sufficiently broad to control the issue
before the court, Hanna should be applied. If the scope is not broad or directly
clashes with the state law, then state law should be applied.

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 b. Takeaway: There is no indication that the FRCP here was intended to toll the
SoL and this the state law should be applied because the FRCP was not directly
on point for the issue at hand. Not a direct clash of FRCP rule here so Byrd
balancing test is used. State has a high interest, fed interest is weak and the it is
OD so ultimately substantive and state law should apply.
i. *Note: When there is a choice between FRCP and state law you should
always start with the test from Hanna test. FRCP is not directly on point
and Byrd balancing must be used.

What happens when the choice is between some state law and a federal statute?
Test
1. Is it a choice of state law vs fed stat? Yes. There are two—the transfer of suits in fed courts
and question of venue. These are fed statutes directly on point dealing specifically with the issue
in dispute here.
2. If there is a fed stat., look to see if the stat in question covers the issue between the parties.
(FRCP must be right on point but statutes can be broadly on point as long as they cover the
issue).
3. See if that statute is a valid exercise of congressional authority (always yes because of
supremacy clause of the Const.)
There is no need for a balancing test now because under the supremacy clause, the grant of
federal power is Constitutional so the federal statute will always win.

6. Stewart Organization, Inc. v. Ricoh Corp.: Dealership agreement between an Alabama

corp. and nationwide manufacturing co with principal business in NJ for a breach of
contractual duties. CoA regarding a contractual forum-selecting clause after breach of
duty, fraud, etc. Suit was brought based on diversity in fed district court of AL. def
moved to transfer the case to NY based on the forum selection clause of the contract they
had. The district court denied the transfer motion under AL state law that unfavorably
dislikes these types of forum selection clauses. The court certified its ruling for
interlocutory appeal and the court of appeals in circuit court accepted the jurisdiction. On
appeal, the circuit court reversed the district on grounds that questions of venue in
diversity actions are governed by federal law and this was an enforceable forum selection
clause as a matter of federal law. Remanded.
a. Rule: If choice is between state law vs fed statute Stewart Test:
i. see if the statute covers the issue (this can be broadly construed, not
narrow like FRCP from Walker)
ii. if it does, is this a valid constitutional exercise? This is always yes under
supremacy clause.
b. Takeaway: There is no need for a balancing test now because under the
supremacy clause, the grant of federal power is Constitutional so the federal
statute will always win.

7. Klaxxon Co. v. Stentor Electric MFG Co.: The proper function of a federal court is to
ascertain what the state law is, not what it ought to be. There is no federal common law.
a. Klaxxon Rule: fed court must apply the same law as the state it’s sitting in would
have applied by looking at the state’s conflict of law rules.

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 b. Takeaway: Under Byrd analysis—you determine state law applies:
i. How the fed court decides which state law to apply—the conflicts of law
rules of the state in which they sit must be applied.
ii. Fed court applies state law that it sits in. you have to research that state’s
conflicts of law rules to do this analysis.

DOCUMENTS AND PROCEDURE IN CIVIL LAWSUIT

PLEADINGS—Complaint, answer and a reply. FRCP 7a.

A pleading is a request for the other party to do something.

1. A complaint (FRCP 8a) is the first document served to a defendant with a court ordered
Summons to appear in a civil action. The complaint alleges the facts and claims of the
case where the plaintiff is entitled to relief. This provides notice to the defendant on what
the action is about and what claims are being charged against them. Under FRCP the
purpose of pleadings is to provide notice of the nature and claim or a defense of a claim
to the other party.
a. Claim for Relief: FRCP 8: a pleading that states a clam for relief must contain:
i. A short and plain statement of the grounds for the court’s jurisdiction,
unless the court already has jurisdiction and the claim needs no new
jurisdiction support;
ii. Short and plain statement of the claim showing that the pleader is entitled
to relief; and
iii. Demand for relief sought, which may include relief in the alternative or
different types of relief.
iv. According to FRCP 3: as soon as a complaint if filed, the action has
commenced.
v. Question of degree of specificity in the facts. A catalogue vs. a short and
plain statement. 
2. What constitutes a well pleaded complaint in FRCP?

a. Dioguardi v. Durning: def. converted some tonic shipped from Italy, some
disappeared and some was sold at auction. Plaintiff sues to recover tonic and
money he bid. Def. moved to dismiss under Rule 12b. District court granted
motion to dismiss without prejudice so plaintiff could amend his complaint. This
was no better than the original and def moved to dismiss again and this was a final
judgement. P appealed.
i. Rule/Takeaway: FRCP Rule 8a2 requires only a short and plain
statement of claim entitled to relief—it does not require facts sufficient to
constitute action, only a short and plain statement for claim. The purpose
is notice not full descriptive detail. Plaintiff has disclosed decently enough
for a conversion CoA and seeks damages for relief.

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 1. *Note: FRCP came out 1938—this was probably the first case to
be decided regarding FRCP issues.
b. The Conley Standard—Conley v. Gibson: In appraising sufficiency of a
complaint, the accepted rule is that 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.—
Citing Dioguardi.
i. Rule: FRCP does not require facts set out in detail rather “a short and
plain statement of the claim” that gives: 1) fair notice to def. and 2)
grounds upon which the claim rests.
ii. Conley Standard: Pleadings are not a game of skill rather their purpose is
to facilitate a proper decision based on merits.
c. Swierkiewicz V. Sorema N.A.: The lower court dismissed the complaint for
“failure to contain specific facts establishing a prima facie case of
discrimination.” Based on the rule of required allegations for prima facie
discrimination cases: 1) membership in a protected group; 2) qualification for the
job in question; 3) an adverse employment action; and 4) circumstances that
support and inference of discrimination. SCOTUS ruled this was not appropriate
because evidentiary standards are not required in pleading complaints. This
will be the employee’s burden of presenting evidence for his case but he is not
required to do so until it comes up in trial.
i. Rule/Takeaway: Under a notice pleading system, it is not appropriate to
require plaintiff to plead facts establishing a prima facie case because this
framework does not apply in every employment discrimination case. To
plead more facts than he may ultimately need to prove to succeed on the
merits if direct evidence of discrimination is discovered, it incongruous.
Rule 8a: only requires that the complaint satisfies fair notice of the basis
of claim, statement of claims upon which relief can be granted, and the
relevant facts to establish the cause of action in a short and plain
statement.
1. *Note: Purpose is notice. Court uses standard in Conley for the
purpose of complaint is notice and it should be liberally construed.
d. Bell Atlantic Corp. v. Twombly: Class action suit—against all the major
telephone operators in the US brought in SDNY, dismissed for failure to state a
claim because they didn’t use the standard of “sufficient unless you have no idea
what the suit is about.” SCOTUS: decided whether the circuit court applied the
correct standard for the complaint. SCOTUS reverses that the complaint was not
sufficient.
i. Rule: point of the Conley rule is to give the def fair notice of the claim.
There does not need to be detailed factual observations but it does need
plausible grounds to infer an agreement not conspiracies. “No set of facts”

20
 should be read as any statement relieving the claim would suffice unless
its factually possible and on the face of the pleading.” Federal rules
purpose is to keep litigants in court, not out, Conley’s no set of facts
standards has been cited over 50 years by half the states, but it needs to be
retired. The facts must be plausible.
1. *Note: Conley “no set of facts” standard should not be read in
isolation, has earned its retirement, correct standard is whether
complaint contains plausible grounds of the claim.
3. NOTES ON PLEADINGS IN PRO SE LITIGATION:
a. Erickson v. Pardus: pro se litigant from prison for refusal of medical treatment
which worsened his condition with Hep. C. District court dismissed for failing to
allege that the denial of treatment caused substantial harm on grounds the
complaint was conclusory and did not prove harm done to him.
i. Rule/Takeaway: Court states that specific facts are not necessary,
complaint only has to ‘give the def. fair notice of what the claim is and
the grounds on which it rests.’” Basic facts needed cites Twombly
quoting Conley.
b. Ashcroft v. Iqbal 2009: P filed complaint for conditions of confinement after
9/11. Harsh conditions in detention center violating his Const. rights and was
discriminatory.
i. Rule/Takeaway: Plausibility standard: To survive a MTD, the Court
states that a complaint must contain facts that are plausible on their
face. The plausibility standard is not a probability standard but is more
than sheer possibility.
4. AMENDMENTS: FRCP 15 made within 21 days
a. Beeck v. Aquaslide ‘N’ Dive Corp.: Why did def need to make a motion to ask
to amend answer? Because a party can only amend pleadings as a matter of right,
once and either within 21 days of service of complaint or within 21 days of
answers served or motion served. After that time period, it’s up to the court but
only the court can decide. Court granted def motion for separate trial on the issue
of whether def manufactured the slide. If plaintiff can’t prove it then the lawsuit
has to be dismissed. Def wanted this to be a threshold issue decided quickly. They
had this trial and as a result the jury found for def. plaintiff could not sustain
their burden of proof. The court allowed the def to amend after the SoL had run
which bars plaintiff from any recovery. How is this fair? It’s unfair to plaintiff but
isn’t it also just as unfair if the def had no part in this manufacturing but can be
found liable anyway? Yes.
b. Rule/Takeaway: Relation-Back of Amendments:
i. When a pleading is amended it must relate back to the original pleading.
ii. *Note: Krupski v. Costa Crociere SPA: there still needs to be notice for
it to relate back. The new party must know or should have known they
would be sued in the CoA.

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 c. *Note: Rule 11—Generally, attorneys sign pleadings. Certain CoA’s have to be
signed by plaintiff on complaint. 1983: objective standard of reasonableness.
Judges sanction attorneys and firms and fine the clients if they found there was
not a satisfaction of standard. This had a very disruptive result. Amendment
today: you can make a motion for sanctions if you think the pleadings are not real
allegations but its served and not filed on the court for 21 days to give the other
side time to fix the issue before the court gets involved. Continuing duty of good
faith.

WAYS TO RESPOND TO THE COMPLAINT—ANSWERS AND MOTIONS:

A motion is a request for the court to do something.

1. Answer the summons & complaint—Responses to the allegations in the Complaint

(FRCP 8b1; 8b5) and affirmative defense (FRCP 8c).
2. Affirmative Defenses: FRCP 8c:
a. in general, responding to a pleading, a party must affirmatively state any
avoidance or affirmative defense such as: assumption of risk, duress, contributory
negligence, estoppel, fraud, license, res judicata, statute of limitations, waiver, etc.
b. A party must affirmatively state any avoidance or affirm. defense. Generally,
includes two types of defensive allegations:
i. Admits the allegations of the complaint, but challenges the plaintiffs legal
right to bring the action by suggesting a reason why relief is not available;
ii. An avoidance avers matters outside the complaint that cannot be raised by
denial.
c. If a defense is assigned to a def. and it is not raised as an avoidance or
affirmative defense, the defense is waived. Affirmative defense must be
asserted in the answer. Rule 8c. Why? Purpose of pleadings is to give notice to
other side what you will be arguing. But if there’s something else that doesn’t
naturally flow within the suit, like SoL, plaintiff needs to know you’re asserting
that through the aff. Defense in the pleading (answer). If you have an aff. def.
and you don’t put it in the answer you have waived it. Anything that may take
the party by surprise needs to be pleaded.
d. Counterclaim—a claim but it’s by the opposing party. Plaintiff must answer the
counterclaim and if not they will be deemed admitted.
e. Ingraham v. US: issue—whether a given defense is “affirmative” within the
ambit of Rule 8c. matters such as fraud, statute of frauds, limitations, truth in
slander, libel, etc. the logical relation to fairness and taking the opposing party
“by surprise.” Determination of whether 1) the matter at issue fairly may be said
to constitute a necessary or extrinsic element in plaintiff’s cause of action; 2)
which party, if either, has better access to relevant evidence; 3) policy
considerations, should they be favored or disfavored?

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 f. Avoidance in pleadings: the allegation or statement of new matter, in opposition
to a former pleading, which, admitting the facts alleged in such former pleadings,
shows cause why they not have their ordinary legal effect.”
g. Twombly and Iqbal are affirmative defenses now subject to the requirement of
plausible pleading?

3. Raise defenses through a FRCP Rule 12b motions:

a. 1. Lack of SMJ
b. 2. Lack of PJ
c. 3. Improper venue
d. 4. Insufficient process
e. 5. Insufficient service of process
f. 6. Failure to state a claim upon which relief may be granted; or
g. 7. Failure to join a party under Rule 19 (Joinder)
4. Special Appearance: nonconsensual motion to dismiss
5. ANSWERS (FRCP 12) 12: Defense and Objections; Motion for Judgement;
Consolidating Motions; Waiving Defenses; Pretrial Hearings include:
a. Crossclaims, counterclaims (FRCP 13), third-party complaints.
b. Defense, Admissions and Denials
i. In general respondent must:
1. State in short and plain terms its defense to each claim asserted
against it; and
2. Admit or deny the allegations against it by an opposing party.
3. A, D, or DKI
4. Answer due within 21 days of service; Motion answers within 14
days; Motion to Strike, etc.

MOTIONS
RULE 12B6 RELATIONS TO RULE8A:
c. 12b6 motion must be made before a responsive pleading (an answer) but those
defenses may be sustained to be brought up at trial.
d. This motion is a screening process to test the sufficiency of a complaint and
weed out those that failed as a pure question of law.
e. Rennie & Laughlin Inc. v. Chrysler Corp.: useful tools for sifting allegations
and determining the legal sufficiency of an asserted claim—pretrial conference,
discovery procedures, motions for a more definite statement, judgement on
pleadings for summary judgement.
f. SCOTUS decisions from Twombly and Iqbal: signaled courts to place a greater
emphasis on Rule 12b6 motion to filter out cases prior to discovery and the
difficulty of measuring the effect on litigant and judicial behavior.
g. Swanson v. Citibank, N.A.: Plaintiff went to CitiBank (def) to apply for a home-
equity loan under their newly advertised Troubled Assets Relief Program. She

23
 valued her home higher than Citibank rep Lanier from PCI Appraisal Services.
She was approved for a loan on the confirmation of it being worth as much as she
said. After their appraisal, she was denied the loan and then sought a private
appraiser who gave it a higher value as well. Plaintiff claims discrimination
violation of the Fair Housing Act and fraud under the Equal Credit Opportunity
Act. (federal question diversity.) Her claims were dismissed upon a Rule 12b6
motion by def’s in district court.
i. Rule/Takeaway: Def. in 12b6 motion argued that her complaint did not
comply with the rules of 8a2. This kind of motion tests the sufficiency of
the complaint. First, we need to decide if it is sufficient. In order to do that
we need to understand the standard of sufficiency from cases before.
Claim for relief must be states with brevity, conciseness and clarity—
must give fair notice. More complex case—more detail in complaint. The
court doesn’t think she has enough to prove to a jury by a preponderance
of the evidence that her claim is valid but she has enough to survive the
MTD so far and should be able to proceed.

JOINDER
FRCP 13 and 18
Two things to think about: Do the rules allow the claims/parties to be added? If so, can the court
even hear it (SMJ)?
1. Ryder v. Jefferson Hotel Co.: Plaintiffs, husband and wife, sued Defendant hotel for
injuries each sustained during their stay at the hotel. In addition, the husband sued for
expenses incurred in caring for the wife’s injuries. Defendants moved to dismiss on the
ground that the husband and wife’s claims were improperly joined.
a. Rule/Takeaway: The plaintiffs, husband and wife, claims were individual to
them and should’ve been tried separately not joined. This was the rule before.
Now under FRCP: 20a1: if plaintiffs assert any joint claims arising out of the
same transaction or occurrence AND claims must involve common questions
of law and fact.

Rule 19—when are parties required to be joined, and what happens if they can’t be?

2. Provident Tradesmens Bank & Trust Co. v. Patterson: The reason they found him to
be an indispensable party is cause he had adverse interest and cannot be joined without
destroying diversity so the case is dismissed from Circuit after raising the issue sua
sponte. But they don’t address Rule 19. SCOTUS goes through rule 19 analysis and
reversed the circuit judgement and remands it.

When to object joinder: Rule 12h2?

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 3. Jeub v. B/G Foods Inc.// Swift: Plaintiffs sued Defendant for injuries sustained from
eating contaminated food at Defendant’s restaurant. Defendant impleaded the
manufacturer of the food seeking indemnification for any judgment paid by Defendant
and the Court issued an order listing the manufacturer as a third-party defendant. The
manufacturer moved to vacate the order on the grounds that the applicable state law
would prevent Defendant from bringing an action for indemnity until Defendant had to
pay out a judgment that was more than its share.
a. Rule/Takeaway: Minnesota law governs the substantive rights of the parties to
the action. The law requiring a party to sustain a loss before bringing an action for
indemnity does not conflict with Rule 14 of the Federal Rules of Civil Procedure.
Rule 14 only speeds up the time in which a party can assert its substantive right
under Minnesota law. Under Rule 14 of the Federal Rules of Civil Procedure, a
defendant may implead a third party defendant “who is or may be liable.”
Although Defendant cannot bring an independent action against Swift for money
recovery, Defendant can still use Rule 14 in order to determine the rights of the
parties at the same time as the original proceeding. If Swift is liable for any loss,
then the laws of Minnesota will govern the issues concerning indemnity and
contribution. The purpose of Rule 14 of the Federal Rules of Civil Procedure
is to resolve the rights of all the parties in one proceeding. If Rule 14 could not
be used because of the Minnesota law requiring proof of loss before an action
seeking indemnification, the parties would have to wait until the proceeding
against Defendant is over and then institute an independent action. This is exactly
the kind of situation Rule 14 is intended to prevent. One jury can be empaneled to
resolve the entire case. In order to prevent prejudice to either party, the action for
indemnity against Swift can be stayed pending payment of a judgment by
Defendant.

FRCP Rule 18—

In general, as many claims/counterclaims/crossclaims/third-party claims as a party has against an
opposing party. You don’t have to join all claims, but you may (this is a permissive rule).
Keep in mind—sometimes not joining claims will lose the claim under preclusion/collateral
estoppel doctrines. Just because you’re allowed to join claims does not mean the court will and
can hear it (still need SMJ/PJ). If it can be dismissed under any 12b motions, they court
won’t hear it.
The court can decide under Rule 42b to separate claims for different trials.
Jurisdictional restrictions, but mostly unrestricted joinder of claims.
1. Claims: plaintiff vs. def.
2. Counterclaims: def. claim against plaintiff
3. Crossclaims: def claim against another co-defendant
4. Third-party claims: def claim against a new defendant they bring in. Original def is now a
defendant and third-party plaintiff, new def. is a third-party def.

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Counterclaims can be compulsory or permissive.
Res Judicata: a matter that has been adjudicated by a competent court and may not be pursued
further by the same parties.

4 Tests Courts Use for Joinder to see if the claims arise out of the “same transaction or
occurrence:”
1. Are the issues of fact and law raised by the claim and counterclaim largely the same?
2. Would res judicata bar a subsequent suit on defendant’s claim absent the compulsory
counterclaim rule?
3. Will substantially the same evidence support or refute plaintiff’s claim as well as defendant’s
counterclaim?
4. Is there any logical relation between the claim and the counterclaim?

1. United States v. Heyward-Robinson Co.: Just because the rules allow it does not
mean the courts can hear it. Plaintiff a subcontractor brought his action against his
contractor and their insurer. Brought into Federal Court under FQ under a statute (the
Miller Act) which has to deal with US named as defendants. Def. counterclaimed that
plaintiff breached the contract on the Navy job and on another job—Stelma. Plaintiff
answers the counterclaim denying liability and asserts a counterclaim for Stelma
breach. Jury finds def breached contract and therefore owes plaintiff damages
computed for both jobs. Appealed. Even though fed court had SMJ over the navy
contract, they did not over Stelma and shouldn’t have heard it. How would they bring
in Stelma? Check first for Diversity (original jurisdiction) and if there is, they can
bring the claim and not worry about supplemental jurisdiction. Both parties were NY
and there was not diversity. Def argued that there was no fed SMJ over Stelma and it
should be dismissed, the court never should have heard it but because they were such
intertwined claims and presented as one to the jury the whole judgement should be
reversed. FRCP 12h3—SMJ is never waived, can be brought up any time. Court now
must decide SMJ over Stelma. Is the def’s initial counterclaim compulsory or
permissive? (compulsory can come in through Supplemental jurisdiction, no
independent basis is needed if they are ancillary claims; Permissive can only
come in if they rest independently on jurisdictional grounds). FRCP 13a.
a. Rule/Takeaway: there must be some sort of logical relationship between the
claim and counterclaim for them to be joined. Unless told, use all 4 tests. The
court decided here, they were logically related. The facts fit within “arising in
or out of the same transaction or occurrence or subject matter of the
opposing party’s claim.” Once you find a compulsory counterclaim that
means there can be Supp Juris. over that claim. Why? Because if you’re
saying you must assert a claim or you’ll lose the claim and then say you can’t
hear it, would make no sense.
i. *Note: FRCP 13a1 and 2: compulsory counterclaim—13b permissive
unless it meets the compulsory counterclaim requirements.
Compulsory you must bring it or you can lose it forever (probably

26
 barred). If you’re not sure, plead it anyways to be safe. 13a1: must
language in compulsory. 13b permissive may be stated.

2. Lasa Per L’Industria Del Marmo Societa Per Azioni v. Alexander: Breach of
contract CoA. District court treats the third-party complaint as a crossclaim under 13h
—rule 19 and 20 required joinder of parties and permissive joinder. Rule 14—third-
party practice. To simplify the lawsuit. District finds none of A’s crossclaims fall
under the same transaction or occurrence of the original claim. These were dismissed
for no satisfying the rule. Circuit court reverses. Why? Do the main claims and
crossclaims relate or not? Under rule 13g the crossclaim has to arise out of the
transaction or occurrence of the subject of plaintiff’s claims against the original
def(s). a logical relationship must exist. LASA sued for money owed on the contract.
Def countered for breach of contract. The other defs crossed for various reasons for
liability of the marble. Held: Circuit found these facts all interconnect and there is a
logical relationship so they should stand.
a. Rule/Takeaway: Crossclaims: claim against a co-party. Crossclaims are
permissive—you may assert a crossclaim. Crossclaims never are
compulsory. If you choose to crossclaim, it must arise out of the same
transaction or occurrence as the claim of the p v. d. Never required to assert
a cross claim.
i. *Note: Why are crossclaims not required (not compulsory) the way
counterclaims are (if compulsory—same transaction/occurrence)?
Defendants might want to work together and not crossclaim each
other. You don’t want to force the defs to fight each other if they don’t
want to and it’s the plaintiff’s suit, if the defs start fighting each other
and making it too complicated, the plaintiff’s suit is overrun with
claims.

Joining Parties to the Lawsuit, Permissive, Mandatory, Third Party:

Rule 19—when are parties required to be joined, and what happens if they can’t be?
Rule 20—(a)(1): plaintiffs required to be joined when arising out of the same transaction or
occurrence and same common questions of law or fact. (a)(2): Defendants required to be joined
when arising out of the same transaction or occurrence and same common questions of law or
fact. See Ex. Ryder.

1. Ryder v. Jefferson Hotel Co.: Plaintiffs, husband and wife, sued Defendant hotel for
injuries each sustained during their stay at the hotel. In addition, the husband sued for
expenses incurred in caring for the wife’s injuries. Defendants moved to dismiss on the
ground that the husband and wife’s claims were improperly joined.
a. Rule: The plaintiffs’ claims were individual to them and should’ve been tried
separately not joined. This was the rule before.

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 b. Takeaway: Now—FRCP: 20a1: if plaintiffs assert any joint claims arising out
of the same transaction or occurrence AND claims must involve common
questions of law and fact.

2. Provident Tradesmens Bank & Trust Co. v. Patterson: Three individuals were in a car
accident involving a car whose owner was not present at the time and another truck.
Three of the people were killed, including the driver of the truck, and one survived. One
decedent’s estate brought an action to enforce a previous judgment against the driver’s
estate and the car owner’s insurance company but not the car owner, on the grounds that
the driver was covered under the car owner’s policy because the driver had permission to
drive the vehicle.
a. Rule: Balancing Test Under Rule 19(b): when considering whether the action
should proceed without an absent party, the Court must consider the Plaintiffs’
interest in the forum, the Defendant’s interest in avoiding duplicate litigation,
the absent party’s desire to join, and the Court and public’s interest in consistent
and complete resolution of cases.
b. Takeaway: The interests articulated in Rule 19(b) of the FRCP must be
evaluated by the Court prior to disposition of the case in order to determine
whether a case should be dismissed for failure to join an indispensable party.
The decision rendered should always be consistent with “equity and good
conscience.
i. *Note: An indispensable party is not a party whose interest “may be
affected” by a final order. It is only those whose interest may be affected
by a final order so that a final order cannot be issued without affecting
those rights.

Can Defendant implead a third party under Rule 14 of the Federal Rules of Civil Procedure if
the applicable state law governing contribution and indemnity would require the third party to
be named as a defendant in the original complaint brought by Plaintiff? Ex. Jeub v. B/G
Foods Inc.// Swift.

1. Jeub v. B/G Foods Inc.// Swift: Plaintiffs sued Def. for injuries sustained from eating
contaminated food at Def.’s restaurant. Def. impleaded the manufacturer of the food
seeking indemnification for any judgment paid by Def. and the Court issued an order
listing the manufacturer as a third-party def.. The manufacturer moved to vacate the order
on the grounds that the applicable state law would prevent Def. from bringing an action
for indemnity until Def. had to pay out a judgment that was more than its share.
a. Rule: A defendant may implead a third party that may be liable in a lawsuit under
Rule 14 even though the def. may not be able to bring an independent action
against the third party at the time the third party is impleaded.
b. Takeaway: The policy behind Rule 14 is to have the rights of all parties
resolved in one proceeding.
i. *Note: If the trial court has means to prevent any prejudice ensued from
impleading a third party, then impleader is permitted.

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 DISCOVERY

Why do we do discovery? To preserve information that might not be available at trial (lawsuits
take a while). Find out what kind of evidence is available to investigate what happened;
witnesses (who and what they will say), etc.

FRCP Governing Discovery Scope: Rule 26b1: any non-privileged matter that is relevant to
the claim or defense of any party and is proportional to the needs of the case.
 A court can limit discovery if it sees abuse through Rule 26b2c; a protection.
 Rule 37a—court ordered motion to compel (force to relinquish information).

DISCOVERY DEVICES: experts, medical exams, investigators, mechanics, other parties, etc.
1. Depositions: questions and answer interview under oath. If they are not a party to the case
they must be subpoenaed.
2. Interrogatories: formal written questions and answers under oath.
3. Requests for Admissions: written request served to opposing part to stipulate or “admit” the
truth to certain facts, relieves the necessity of presenting evidence on the point.
4. Requests for the Production and Inspection of Documents or Other Things; Physical or
Mental Examinations of Persons: according to State CP or FRCP. 1

FRCP 26: Duty to Disclose; General Provisions Governing Discovery:

 26a Required disclosures: 1A: initial disclosure—must provide without request
unless exempted in 26a1B. 1B exemptions.
 26a1C time for disclosure: 14 days
 26a2 expert disclosure testimony
 26a3 pretrial disclosures
 26b scope and limitations of discovery
 26f: required immediate disclosures; Discovery plan, scheduling order by court

FRCP 30—Depositions, oral testimony under oath. Could for credibility and can be used on
parties or non-parties, can learn what they know, pin down their answer, continue following up
and the opposing counsel does not control their response. Cons—expensive and can be time
consuming.
Rule 45: Subpoena per rule 34(c) production of property under subpoena on non-party
 Must subpoena a non-party to depose them otherwise the court has no power over them
and cannot hold them accountable to show up or in contempt if they do not show up.
Rule 33: Interrogatories— Written sworn testimony to things, facts, etc.
 Pros: useful as a prelude to depo., good for background info and figuring out who to
depose, who else may be involved, highly technical info that may require experts, etc.
Cons: can only be used on parties to suit; can take a while to get answers and answers
may be very limited in substance of details.
Rule 35—IMEs (physical or mental):

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  Independent medical examination (def’s doctor of choice). To demonstrate the plaintiff’s
condition is in controversy to require an exam
Rule 36—Request to Admit: A, D, DKI.
 Device used at the end of discovery, usually. The requesting party wants sufficient info
about the case in order to formulate their requested admissions. If the other side admits, it
is binding at trial and relieves the requesting party of time and expense to prove. Expedite
trial and reduce costs.
Rule 26e—Duty to Supplement Responses; correcting information if not already made known to
other parties
o Burden of reviewing old requests for accuracy is unfair;
o This applies to: mandatory disclosures, requests for production, requests for
admission and interrogatories. (not depos—oral and non-party).
o Sanctions for not responding/correcting.
 Rule 26b1—Privilege
o If a privilege attaches to a communication, that specific communication cannot
be discovered, no matter how much it is needed. Attorney-client privilege,
spousal privilege, doctor-patient, privilege against self-incrimination.
 Rule 26b3—Work Product: things like photographs of the scene, statements of
witnesses that day.
o Ordinary work product is discoverable if otherwise discoverable and there is no
other way to get info and not getting it will cause undue hardship.
o Opinion work product (like an atty’s handwritten notes) is only discoverable
under super necessity ex. Hickman v. Taylor. Can only be obtained if showing the
court extreme necessity it’s almost impossible. Qualified immunity not a
privilege.
 Rule 26a2 and 26b4—Expert Testimony:
o If the other side plans to call an expert at trial you can get the identity and
anticipated report of testimony
o You can also depose them after certain components of discovery are completed
o If the expert is not planned to be called at trial you would need to show extreme
exceptional circumstances to get that information prior

SUMMARY JUDGEMENT

FRCP 56: Summary judgment—a judgement without a trial used when there are no more
material disputes of the facts, only of the law for a judge to determine. To dispose of a lawsuit
without a trial. Rule 56 allows a court to enter judgement as a matter of law if there are not
material issues of fact in dispute.
Goal: to get a new trial or have a judgement rendered early (litigation and discovery are costly).
 56b: May be filed at any time until 30 days after the close of discovery
 Plaintiff must meet trial burden of production and burden of persuasion
o In civil actions plaintiff must prove all the elements by a preponderance of the
evidence.

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 o Burden of proof:
o 1. Burden of Production: assessed before jury; to decide whether or not it can
even go to a jury.
o 2. Burden of Persuasion: once the case goes to the jury
o Affirmative defenses: burden to prove on defendant because they plead these in
their answer.
 Any party may move for summary judgement
 Can be sought for part of claims or defenses or the entire claim/defense

Burden of Production: burden of proof on plaintiff in civil matters. They are responsible for
producing a certain threshold of evidence for their claim. Def. must meet a certain burden of
production to their affirmative defenses. One has introduced enough evidence when a
reasonable jury could decide a winner.

Burden of Persuasion: this step is after the burden to produce is met. If the plaintiff has the
burden to persuade and does not meet the standard required the jury must decide in favor of the
def. Even if the P has satisfied the production burden, and the def. brings forth no evidence of
their own, if the jury is not persuaded the plaintiff’s evidence is sufficiently reliable/credible they
must decide in favor of def.

How do you apply this standard for MOT SUMJ?

*Note: Summary judgement inferences must be drawn from the underlying facts contained in
the moving party’s materials which must be viewing in the light most favorable to the party
opposing the motion and this motion is used when there is no more dispute of the facts.

1. Cross v. US: NY professor took a vacation in Europe and claimed his travel expenses as
tax deductions. The lower court granted a motion for summary judgement but the Circuit
reversed stating that the motive, intent and subjective feelings or reactions of the
professor’s trip are still in dispute as facts and should be examined before a jury.
a. Rule: to move for SUMJ you must demonstrate there are not questions of fact
for a jury to decide anymore and only an issue as a matter of law for judge to
determine remains.
b. Takeaway: Just because they were not fully discovered before trial does not mean
they do not exist and therefore the MSJ should not have been granted because
there is still a dispute of the facts for a jury and judge to here as trier of facts
and not merely a legal issue.

2. Adickes v. S.H. Kress & Co. SCOTUS 1970. A white NY schoolteacher volunteering in
Mississippi over the summer was taking 6 black students to the Public Library and lunch.
At the Library they were refused entry and then it was close by the police. Those police
continued to follow the group to a diner where it was too crowded so they settled for
another one (the Def’s) and the white teacher was refused service after the black students

31
 had ordered. They refused to eat unless she was served and the police arrested the teacher
on suspicion of the def owner that a riot would break out.
a. Rule: Think in terms of what burdens and who has them: Party making the
motion has the initial burden to show proof of fact resolution and if they do
then the opposing party has to rebut that. But if the movant never proves
anything then the burden doesn’t shift.
b. Takeaway: Kress had the burden to show that there were not disputed facts left
and the court says he did not do that by not showing proof of absence of police in
the store. There affidavits did not say the police were not in the store before
plaintiff so there are still disputable facts to be resolved.

3. Celotex Corp. v. Catrett: Action for wrongful death for asbestos exposure and death.
During discovery nothing comes up to prove the decedent was exposed to defendant’s
asbestos specifically. Since there was no evidence of causation (in a negligence suit) they
def. moves for SUMJ. Def says the three documents plaintiff opposed the motion with are
all hearsay and therefore cannot be used. Lower court granted motion on grounds that
plaintiff did not sustain her opposition to prove her CoA.
a. Rule: Rule 56c/e: mandates the entry of summary judgement, after adequate time
for discovery and upon motion against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.
b. Takeaway: The motion may, and should be granted, so long as whatever is
before the district court demonstrates that the standard for the entry of
summary judgement is satisfied.
c.
*Note: Differences between these cases:
 Adickes—Defendant Kress was movant. Def put forward evidence but it did not
address the factual issues so the jury needed to be presented the question to decide the
dispute. Production of irrelevant info; still question of fact—motion denied.
 Cross—Plaintiff Cross was movant. He failed to sustain his burden of production; he
did not demonstrate no questions of fact by using his own deposition testimony and
more information was needed to address factual disputes so it needed to go to jury as
well. Motion denied.
 Celotex: def. moving for SUMJ. Def poked holes in plaintiff’s claims even without
producing anything because there was nothing to support the plaintiff’s facts of claims.
No production; no fact to prove because no fact disputed—motion granted.

JNOV—MOTION AS A MATTER OF LAW

JUDGMENTS AS A MATTER OF LAW AND MOTIONS FOR NEW TRIAL:

32
Taking the case from the Jury—Motions for judgment as a matter of law (JNOV Judgement non
obstante verdicto/notwithstanding the verdict).
*Note: Def does not have a burden of production or persuasion unless they have an
affirmative defense. If they have an aff. def. the burdens shift.
Why is there a need for a judgement as a matter of law after the jury has rendered a verdict?
It is extremely rare for this at the end of all the evidence. This could affect posture of cases—
comity and uniformity, essentially the purpose.

When is a Motion SUMJ made? Before trial. Evidence used is what has come up in discovery
so far.
 Assessing whether the plaintiff could satisfy her burden of proof at trial.

1. JNOV (JUDGEMENT AS A MATTER OF LAW) is made 50a during course of

trial. Evidence used is evidence admitted in trial. FRCP 50. *Note: 50a and b used to be
a directed verdict and JNOV now it is all called Judgement as a Matter of Law and is
asking for a different decision to be made and enforced than what the jury has brought.
*Goal. YOU MUST MAKE A 50A MOTION TO RENEW IT UNDER 50B.
a. Burden of production
b. Def is saying P has put on all their evidence and still has failed to sustain their
burden of production (i.e. no evidence here to show x, y, z elements).
c. If that motion was denied during course o trial, def can make it after it’s gone to
the jury and the jury has found a verdict. Renewed motion 50b—take the case
away from the jury and disregard their finding.
d. Either party can make these motions.
e. Request for court to decide this as a matter of law. Jury decides matters of fact.
f. Only involve legal question of whether there is enough evidence for jury to use to
make a decision. Have they satisfied burden or production?
g. Evidence viewed in light most favorable to opposing party.
h. Motion must be denied if it is viewed that reasonable people could differ on
questions of fact. Then it must go to jury.
i. Why are there two chances for this motion (original during trial and renewed
after verdict)? Judicial efficiency. Without going to a jury, the appellate court will
have to question and justify or reverse a judge’s decision (comity).

FRCP 61: Harmless Error—no error in admitting or excluding evidence is ground for granting
a new trial, for setting aside the verdict, or for vacating, modifying, or otherwise disturbing the
judgement or order. At every stage of the proceeding the court must disregard all errors and
effects that do not affect any party’s substantial rights.
 Errors committed during the course of trial may be categorized as follows;
o Those that would result in reversal if the case were to be appealed;
o Those that may have had an impact on the verdict, but do not justify reversal of
the case on appealed; and
o Those that did not significantly affect the outcome.

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  Errors that would justify a reversal by an appellate court demand remedial measures at
the trial level.
 Theoretically, the district court has discretion to decide whether a new trial is
appropriate only with regard to errors that affect the result in the case but would not lead
to reversal on appeal.

Standard for Granting Motion for JUDGEMENT AS A MATTER OF LAW: HARDER

TO GET THAN A NEW TRIAL.

j. P MUST SHOW THE EVIDENCE IS SO OVERWHELMING TO ENTITLE

THEM TO A DECISION AS A MATTER OF LAW.
i. Is the verdict against weight of evidence? ex. Denman and Ginsburg
ii. Is the verdict based on false evidence? Ex. Denman
iii. Is the verdict result of a miscarriage of justice? Ex. Ginsburg; Kircher
and Aetna.
k. Motions must only raise the legal question of whether there is enough evidence
to make an issue for the jury.
i. Assess plaintiff’s burden of production (did they produce enough
evidence?) Evidence must be viewed in the light of the non-moving party.
ii. If P did satisfy then case goes to the jury.
iii. If P did not satisfy then you can grant judgement as a matter of law.
iv. Motion must be denied if, when viewed in the light most favorable to the
nonmoving party, a reasonable person can reach the same conclusion.

2. MOTION FOR NEW TRIAL after trial. FRCP 59.

a. Burden of persuasion
b. Still comes at the trial court level (not an appeal) but it gives the court an
opportunity to redo if the court worries there was some kind of error that was
so serious if it were to be appealed, it may be reversed. This reasoning, Judge
should grant this.
c. If the judge believes the errors didn’t affect the decision in any way, then they
should deny it.
d. Evidence to be submitted to a new jury. It does not give rise to a final judgement
and cannot be immediately appealed.
e. Grounds for granting new trial: usually with how the jury took the evidence
(persuasion) or error in jury instructions (incorrect statement of law).

A. Denman v. Spain: Car accident suing def’s estate for damages and negligence. On a
rainy/foggy evening the plaintiff’s car was struck by def. and flung off the highway. The
driver of plaintiff’s car and passengers of def all deceased except plaintiff and one
passenger of def. neither could remember the accident. Two testimonies submitted that
def was driving 75mph and passing in opposite late but before the crash was in the proper
lane and driving straight. No one saw the actual crash and the pictures and investigation
scene are inconclusive of who or what caused the accident itself. One testimony
inadmissible.

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 a. Rule: The burden is on plaintiff to prove (elements of negligence action) by a
preponderance of the evidence, not only that the operate of the vehicle was liable
for negligence but also that such negligence proximately caused or contributed
to the collision and consequent damages.
b. Takeaway: Def. did not offer any evidence here at all (no issue it’s not their
burden) and P was awarded damages. Def. moves for JNOV after jury verdict.
Court grants JNOV finding for Def. Court saying: if the jury really understood
the burden of proof on plaintiff, they would not have found the way they did;
they made a mistake as a matter of law. Court says no reasonable jury could
have found for P because she did not prove the causation element of her
negligence claim.

B. Kircher v. Atchison, Topeka & Santa Fe Ry. Co.: Plaintiff sued for loss of his hand
that had been run over by def’s train. Judgment affirmed for plaintiff. “It cannot be held
as a matter of law that plaintiff’s version was such as to contravene the laws of nature or
as to render the jury’s acceptance of it unreasonable.” Even though P couldn’t explain
exactly how the accident happened, the jury was not compelled to find against him
because of this. It could reasonably be inferred that his failure to explain this
circumstance was due to the facts (he fell and was hurt/unconscious).
a. Rule/Takeaway: jury must be presented facts to reasonably infer and draw their
verdict conclusions from.

C. Ginsburg v. Williams: MVA. Jury rendered a verdict for def and P moved for new trial.
Court granted this motion for new trial “in the interests of justice.” Def sought a writ of
prohibition to restrain enforcement of the ruling claiming the court erred in granting a
new trial for reasons outside the scope of Minn. Civ pro rules 59.01. Minn. Supreme
court said: these rules are so comprehensive and include every conceivable reason for
which a new trial ought to be ordered.
a. Rule: Permitting the use of “interests of justice” as the court’s basis for granting
the motion was an arbitrary exercise of their power.
b. Takeaway: It is difficult to fashion effective rules to control these arbitrary
powered but all of these reasons within the rules are to prevent injustice and
promote interests of justices, they should’ve just picked a rule.
i. *Note: Most commonly—a jury verdict is incoherent; misconduct; error in
instruction; verdict is against the weight of the evidence (persuasion issue.
Ex. Aetna case).

D. Aetna Casualty & Surety Co. v. Yeatts: Def. Yeatts sued for engaging in criminal
activity of performing an illegal abortion. He had liability insurance but abortions (this
specific criminal activity) was excluded from his coverage and policy. He attempted to
indemnify Aetna for coverage but couldn’t.
a. Rule: The motion to set aside the verdict and grant a new trial was a matter of
federal procedure governed by FRCP rule 59 and not subject in any way to the
rules of state practice. On such a motion it is the duty of the judge to set aside the
verdict and grant a new trial, if he is of the opinion that the verdict is against the
clear way of evidence, or is based upon evidence which is false, or will result in a
35
 miscarriage of justice, even though there may be substantial evidence which
would prevent the direction of a verdict. There are historic safeguards of this
right. *It is equally well settled that the granting or refusing of a new trial is a
matter resting in the sound discretion of the trial judge and that his action
thereon is not reviewable upon appeal except in the most exceptional
circumstances.
b. Takeaway: TEST for Standard of Granting New Trial or JNOV:
i. court must believe the verdict against the clear weight of evidence; or
ii. based upon evidence which is false; or
iii. will result in a miscarriage of justice even if there is substantial evidence
which would prevent the direction of verdict.

*Note: STANDARDS OF REVIEW: abuse of discretion. How the appellate court views errors
on appeal. Depending on the error the court uses a diff way. 3 standards of review:
1. Abuse of Discretion
a. Weighing in favor of trial court; they were probably correct unless some
ridiculous circumstance.
b. Only reversed in the most exceptional circumstances
c. Standard used for motions for new trial
2. De novo (ground up)
a. Motions for SUMJ
b. Motions as a matter of law (JNOV)
3. Clear and Convincing
a. Only used for decisions that came without a jury

RES JUDICATA

What is Res Judicata? The binding effect of prior judgements and the twin doctrines of res
judicata and collateral estoppel—claim preclusion and issue preclusion.

Four common principles that explain the doctrine of former adjudication:

 A party ordinarily gets only one chance to litigate a “claim.” If the party litigates only a
portion of a claim the first time around, they risk losing the chance to litigate the rest.
 A party generally gets only one chance to litigate a factual or legal “issue.” Once
litigated, a party cannot ask a second court to decide it differently at a later point.
 A party typically is entitled to at least one “full and fair” chance to litigate before being
barred from having the claims and issues heard by a court.
 The defense of preclusion may be waived unless it is raised at an early stage of the
litigation.

*Res judicata is used as a general term referring to all of the ways in which one judgment will
have a binding effect on another. Two quite different effects of judgements:

CLAIM PRECLUSION:

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 1. The effect of foreclosing any litigation of matters. If a party is attempting to litigate his
claim, claim preclusion can sometimes intervene to prevent the entire claim from being
litigated because of matters that were either already litigated in a prior action, or
should have been litigated in a prior action.
a. True res judicata. Merger and Bar.
b. A valid final adjudication of a claim precludes a second action on that claim or
any part of it.
c. Merger—if a party wins in Action 1 and is trying to bring the same claim again,
he cannot because his claim merges with the judgement in action 1.
d. Bar—if a party loses in action 1 and is trying to bring the same claim again, he
cannot because the judgement in action1 acts as a bar.
e. The first action judgement must have been of a certain “quality.” That is must
have been valid, final, and on the merits of the claim (this does not include
procedural issues).

ISSUE PRECLUSION:
2. The effect of foreclosing re-litigation of matters that have once been litigated and
decided. While claim preclusion involves re-litigation of the whole claim, issue
preclusion is when a party attempts to relitigate an issue that has already been
determined in the first action, even if the claim is different in the second action. only
applies to matters argued and decided in an earlier lawsuit.
a. Collateral estoppel.
b. An issue of fact or law, actually litigated and resolved by a valid final
judgement, binds the parties in a subsequent action, whether on the same or a
different claim. To exist, a proceeding must involve the identical issue that was
presented in the previous suit.
c. It is necessary to examine the nature of the first action and the treatment that issue
received in it. The first action judgement must have been of a certain “quality.”
That is must have been valid, final, and on the merits of the claim (this does not
include procedural issues).
d. The issues raised in the second suit must have been actually litigated in the first
action and must have been decided by the first court.
e. The determination of that issue must have been necessary to the court’s
judgment.

*Note: Preventing inconsistent decisions. Don’t want to waste judicial resources.

You have one chance to litigate a CoA and every claim within it, in one full and fair
opportunity or day in court.
*Keep in mind: This is not until there is a second lawsuit that preclusion issues are raised.
Preclusion is an affirmative defense.

1. CLAIM AND DEFENSE PRECLUSION:

When a second suit is brought, the judgement from a prior suit will be considered conclusive,
both on the parties to the judgement and one those in privity with them as to matters that
actually were litigated or should have been litigated in the first suit.

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 A. Ex. Cromwell v. County of Sac.: A judgement, if entered upon the merits, constitutes
an absolute bar to a subsequent action.

18 Wright, Miller & Cooper, Fed. Prac. and Pro. §4406:

For CLAIM PRECLUSION to operate, three elements must be present:
1. Must be the same claim in Act1 as Act2. The second suit must involve matters properly
considered to have been included in the first action. Ex. Rush v. Maple Heights. 3
jurisdictional approaches/tests
a. Whether it is a single theory of recovery Ex. Rush v. Maple
b. Whether the proof (evidence) in support of each claim is the same ex. minority
(old rule) discussed in Maple.
c. Whether the claims are based on the same operative facts (transactional test) Ex.
Matthews v. NY Racing
2. Must be the same parties (or in privity) in Act1 and Act2. The parties in the subsequent
action must be identical to or in privity with those in the first. Ex. Matthews v. NY
Racing
a. *Note: This requirement is one of the most important distinctions between claim
preclusions and issue preclusion.
b. Ex. of Privity: Respondeat Superior relationship, trustee/beneficiary
3. Must be a final judgement on the merits in Act1. Only judgements that are “final, valid
and on the merits” have preclusive effect.
a. A judgement is on the merits even if it is through SUMJ or Default. Exs. of
judgements not on the merits—lack of PJ, lack of SMJ, lack of indispensable
party.

B. Rush v. City of Maple Heights: Plaintiff was injured in a motorcycle accident and
brought a suit for damages to her personal property and court found for P. P then
instituted a second action for damages to herself. Ct. found for P again and Def. appealed
on ground that the court erred in permitting her to split her cause of action for property
and personal damages. Judgement reversed and final judgement entered for defendant
City of Maple Heights.
a. Rule: a single tort can be the basis of but one action where several results and
effects come from one wrongful act. This is necessary to prevents multiplicity of
suits, burdensome expense, and delays to plaintiffs, and vexatious litigation
against defendants.
b. Takeaway: If the plaintiff fails to sue for the entire damage done to him by the
tort, a second action for the damages omitted will be precluded by the judgment
in the first suit brought and tried.
i. *Note: OH. changed the rule: Granted Claim preclusion saying her
second action was barred by the first.

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*Note: Rush illustrates the importance of stare decisis: the judicial doctrine that helps courts
fashion and preserve a system of laws based upon rational principle. The obligation to follow
precedent. The binding force of stare decisis is not absolute, and the parties to a later action are
free to argue that the law announced in an earlier case should be changed. But a court will not
lightly depart from precedent. Such continuity over time that a respect for precedent is
indispensable.

C. Planned Parenthood of SE PA. v. Casey—SCOTUS—1992: Stare decisis is a principle

of policy and not a mechanical formula of adherence to the latest decision.
D. Allen v. McCurry—SCOTUS—1980: Important policy goals supported by res
judicata—res judicata and collateral estoppel relieve parties of the cost and vexation of
multiple lawsuits, conserve judicial resources, and by preventing inconsistent decisions,
encourage reliance on adjudication.
E. Best Life. Assur. Co. of CA v. Comm. of Internal Rev.—9th Circuit—2002: Obiter
dictum—one that is unnecessary to the decision in a case and therefore not precedential.
Maybe persuasive. Where a decision rests on two or more grounds, none can be relegated
to the category of obiter dictum.
a. *Note: A holding consists of judicial paths of reasoning that:
i. Are actually decided;
ii. Are based upon the facts that case; and
iii. Lead to the judgement.
iv. Dictum does not explain why the court’s judgement goes in the favor that
it did.

F. Petro-Hunt LLC v. US—5th Circuit—2004: Contemporary “transaction” test: the

preclusion effect of a prior judgement extends to all rights the original plaintiff has “with
respect to all or any part of the transaction, or series of connected transactions, out of
which the original action arose.” Same nucleus of operative facts.

*Restatement Second Judgements §24: Determining the scope of claim preclusion:

Present trend  to see a claim in factual terms and to make it coterminous with the transaction
regardless of the number of substantive theories, or various forms of relief flowing from those
theories, that may be available to the plaintiff; regardless f the number of primary rights that may
have been invaded; regardless of the variations in the evidence needed to support the theories or
rights. The transaction is the basis of the litigative unit or entity which may not be split.

G. Vanover v. NCO Financial Services Inc.—11th Circuit—2017: Two suits for the same
thing one in federal FL one in state FL.
a. Rule: the doctrine of claim splitting applies “where the second suit has been filed
before the first suit has reached a final judgement” although claim splitting is
related to res judicata, its application does not require a final judgement. The
inquiry is two-fold: 1) whether the case involves the same parties and their

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 privies, and 2) whether separate cases arise from the same transaction or series
of transactions.
b. Takeaway: fairness and efficiency: claim splitting doctrine ensures that a
plaintiff may not split up his demand and prosecute by piecemeal. No do-overs.

H. Matthews v. New York Racing Assoc. Inc: Plaintiff brought an Act 1: Matthews v.
Employees of NYRA (CoA: assault, kidnapping, etc.)—Def. wins. P brought Act 2:
Matthews v. Owner of NYRA (CoA: same as above)—Def affirmative defense of claim
preclusion. Defs move for SUMJ FRCP 56b on the ground that judgement in a prior
action in this court is res judicata as to the claim now alleged.
a. Rule: The term “claim” refers to the same group of facts limited to a single
occurrence or transaction without particular reference to the resulting legal
rights. It is the facts surrounding the occurrence which operate to make up the
claim, not the legal theory upon which a plaintiff relies.
b. Takeaway: Court test here—transactional. Is the identity of the facts the same?
Are the operative facts the same? The court ruled yes. Act2 must be barred by res
judicata.

I. Jones v. Morris Plan Bank of Portsmouth: Action for conversion. Verdict for def. in
the first action for the first installment payments—Jones did not appear and judgement
was entered against him. He satisfied the execution of the judgment. Later Morris
brought another action for subsequent missed installment payments and Jones filed a plea
of res adjudicata when Morris took nonsuit. Morris took possession of the vehicle and
sold it to use the proceeds toward the note. Plaintiff Jones now suing for conversion and
recovery of damages for the loss of his vehicle. Plaintiff argues that the entire balance
due thereon matured and at once became due and the def having elected to sue him for
only two installments instead of the entire amount of the note, and having obtained a
judgement for those two installments and satisfaction of the execution issues thereon, it
waived its right to collect the balance after.
a. Rule: General Transaction Test: Principal tests in determining whether a
demand is single and entire or several and gives rise to more than one CoA—is
the identity of facts necessary to maintain the action. If the same evidence will
support both actions there is but one cause of action.
i. *Note: Specific transaction test: if the transaction is represented by one
singled and indivisible contract and the breach gives rise to one single
CoA, it cannot be split into distinct parts and separate actions. If the
contract is divisible giving rise to more than one CoA then each may be
proceeded upon separately.
b. Takeaway: When the Bank took a nonsuit and paid the remainder of the car on
the title which was passed to Jones, he was now the lawful owner and then they
took the car. So now Jones is remanded back to trial for damages award. He had
really good lawyers here.

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*Note: TRANSACTION TEST:
3. Relevant considerations when assessing whether a factual grouping constitutes a single
transaction/claim by evaluating:
 Whether the facts are related in time, space, origin, or motivation,
 whether they form a convenient trial unit, and
 whether their treatment as a unit conforms to the parties’ expectations of business
understanding or usage.

*Note: Preclusion on continuing nuisance:

Useful rules of thumb: if the conduct that is the subject of the first action continues after
judgement in the first action, claim preclusion would not prevent a second suit. Issue preclusion
may apply however to matters of status or issues of fact resolved in the first action. “Permanent
nuisance” are considered to have full preclusive effect; “temporary nuisance” are not considered
to preclude later litigation involving the same behavior.

2. ISSUE PRECLUSION & MUTUALITY: Collateral estoppel—issue preclusion.

General principle that a right, question, or fact distinctly put in issue and directly determined by
a court cannot be disputed in a subsequent suit between the same parties or their privies;
and, even if the second suit is for a different cause of action, the right, question, or fact once so
determined must be taken as conclusively established, so long as the judgement in the first suit
remains unmodified.

 Two procedural contexts to invoke issue preclusion:

o P in a second suit may invoke IP offensively—in order to preclude litigation of an
issue that was decided favorably to that party in a prior action. Ex. Parklane.
o D may invoke IP in second suit—to preclude re-litigation of an issue that was decided
in that party’s favor in the prior suit. Ex. Bernhard and Blonder-Tongue
 When two suits involve the same CoA, issue preclusion is referred to as direct estoppel.
 When the second suit involves a new claim or CoA, issue preclusion is referred to as
collateral estoppel.

*Note: Big difference:

You can have claim preclusion even if something was never raised in the first action.
Issue preclusion must have been raised.

MUTUALITY:
 Offensive Issue Preclusion: P wins on an issue in action1. P then seeks to use that
favorable finding from Act1 to preclude a Def from relitigating it in Act2. Preclusion is
being used to establish a claim. To establish a claim. Ex. Train case on 1284.
 Defensive Issue Preclusion: D wins on an issue in Act1. Def then seeks to use that
favorable finding from Act1 to preclude a P from relitigating it in act2. Preclusion is
being used to defeat a claim (as a defense). To defeat a claim. Ex. Bernard.

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  Rule in Fed Courts: there is no traditional mutuality, if it is defensive issue preclusion it
is allowed even if no privity, if it is offensive issue preclusion must do balancing test
from Parklane.

*Evolution and Decline of Mutuality and reasons for doing away with it:
3. FIRST NAT. BANK V. CITY NAT. BANK—MA—1902: To allow the right of
indemnification would be to destroy the victory won by the indemnitor in the first suit.
To deny the right of indemnification would be to destroy the indemnitee’s right by the
result of an action in which he took no part.

4. Bernhard v. Bank of America Nat. Trust & Savings Ass’n.: An elderly woman who
was also very sick signed bank transfer agreements with a doctor and family/friends
present. Once she died the money from her savings was transferred to the signees. Act1:
Bernard v. Cook (probate court) Cook wins holding that Decedent gave money to Cook
as a gift. Act2: Bernard v. Bank –court held that Due Process forbids Bernard to use a
finding of the suit against the Bank but no forbidding the Bank to use the suit against
Bernard; so CA Supreme did away with the Mutuality doctrine. They allowed the Bank
to use issue preclusion defensively against Bernard.
a. Rule: The requirements of Due Process of law forbid the assertion of a plea of res
judicata against a party unless he was bound by the earlier litigation in which the
matter was decided. He is bound by that litigation only if he has been a party
thereto or in privity with a party thereto.  there is no compelling reason for
requiring that the party asserting the plea of res judicata must have been a party or
in privity with a party to the earlier litigation, however. Test for determining the
validity of a plea of res judicata
i. Was the issue decided in a prior adjudication identical with the one
presented in the action in question?
ii. Was there a final judgement on the merits?
iii. Was the party against whom the plea is asserted a party or in privity with a
party to the prior adjudication?
b. Takeaway: P brought this action as administratrix of the estate and in this
capacity she represents the very same persons and interests that were
represented in the earlier probate court hearing. All of whom were bound by the
order settling the account.

5. BLONDERR-TONGUE LABS INC. V. UNI OF IL FOND. — SCOTUS—1971.:

Patent infringement case. The Supreme Court began to do away with the mutuality
requirement in the federal system, and express the following views on the propriety of
non-mutual preclusion: the cases and authorities discussed connect erosion of the
mutuality requirement to the goal of limiting relitigation of issues where that can be
achieved without compromising fairness in particular cases. whether it is any longer
tenable to afford a litigant more than one full and fair opportunity for judicial resolution
of the same issue is the broader question. Permitting repeated litigation of the same issue

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 as long as the supply of unrelated defendants holds out reflects either the aura of the
gaming table or “a lack of discipline and of disinterestedness on the part of the lower
courts, hardly a worthy or wise basis for fashioning rules of procedure.”
a. Rule: The court emphasized that the District Court retained discretion to accept or
reject a plea of collateral estoppel: rather the plaintiff must be permitted to
demonstrate, if he can, that he did not have a fair opportunity procedurally,
substantively and evidentially to pursue his claim the first time. This is the
rule. Determining whether a plaintiff has had a full and fair chance to litigate the
validity of his patent in an earlier case is of necessity not a simple matter. No one
set of facts nor one collection of words or phrases will provide an automatic
formula for proper rulings on estoppel please. In the end the decision will
necessarily rest on the trial court sense of justice and equity—comity, judicial
fairness and economy.
b. *Takeaways: the only relevant consideration should be whether the party against
whom preclusion is asserted has had a full and fair opportunity to litigate.
Regardless, non-mutual collateral estoppel is unfair when it emerges from the fact
that the litigation involves substantial element of chance, litigation is inherently
risky.

6. Parklane Hosiery Co. v. Shore: Act 1: SEC v. Parklane –SEC won. Act 2: Shore v.
Parklane. Shareholders wanted to use issue preclusion offensively. District Court said no
because of mutuality. Appeals Court allowed it. SCOTUS allowed offensive issue
preclusion but trial court has broad discretion in how it should be applied.
a. Rule: PARKLANE BALANCING TEST:
i. Judicial economy: costly to litigate so courts resources shouldn’t be
wasted
1. Strong incentive to join all potential defs
ii. Fairness to Def: full and fair opportunity to litigate
1. Did he defend himself vigorously or not previously
2. Did he have the same procedural opportunities? Were there any
unavailable in the first action
b. Takeaway: trial court has broad discretion to grant or deny a motion for issue
preclusion. There are standards of review if they err but for the most part, they
would not likely be reversed.

* NOTES:
 Offensive non mutual collateral estoppel is the term used to describe a case in which a
plaintiff seeks to preclude a defendant from relitigating an issue which the defendant
previously litigated on lost against a different plaintiff.
 There are two distinct limits on the non-mutual application of collateral estoppel:
o one not a party to the prior action should not be allowed to assert the prior
judgment against one who was a party thereto unless the person against whom the

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 judgment is asserted had in fact how to full, fair and effective opportunity to
contest the issue. And
o that the plea should not be allowed where its allowance would result in
intolerable anomalies in the administration of justice.
 One important exception called multiple claimant anomaly: you cannot plead that the
judgment should be used against the next person to sue because they were not a party in
the first action nor in privity with the first action. The indispensability of such a result
seems obvious.

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