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Rule 12(b): Defenses by Motion 1) subject-matter 2) personal 3) venue 4) process 5) service 6) state a claim 7) join 12(g)(2): cannot make

another motion under 12 if omitted from earlier 12 motion 12(h): waives defenses if omitted or failing to make it by motion or include in a responsive pleading or amendmen 12(h)(3): court must dismiss action at any time if it lacks subject-matter juris If argue that complaint doesnt state claim arising under federal law12(b)(6) if theres any arguable basis for a federal claim, if not then 12(b)(1) Personal Jurisdiction International Shoe: Minimum contacts not offending traditional notions of fair play and substantial justice claims from quality and nature of act (specific jurisdiction) General Jurisdiction: substantial and continuousany claim [domicile, incorp/PPoB] Hanson: D purposefully avails itself of privilege of stateinvoke benefit&protection WWVolkswagon Factors: 1) forum states interest in adjudicating 2) plaintiffs interest in convenient forum 3)efficient resolution 4)inconvenience to D Foreseeability reasonably anticipate being haled into court, efforts of manufacturer to serve the market for its product in the State Burger King: K negotiated/performed in statepurposeful availment Asahi: OConner: place in stream of commerce is not enough; Brennan: yes Designing product for market, advertising, sales agent in Stateintent to serve state Calder Effects Test: D expressly aims tortuous conduct at forum state and aware his intentional conduct will cause harm in forum state Burnham (Transient Jurs): physical presence alone is OK (tradition of legal system) Carnival Cruise (Consent): forum-selection clauses OK if not meant to discourage, PPoB in forum state, no fraud, Ps concede they had notice of the clause Mullane: Notice reasonably calculated to inform those affected, or if not available, the form chosen is not substantially less likely to give notice than customary ones RRule 4 Summons: 4(d) waives, 4(e) for individuals, 4(h) for corporations Long-Arm Statutes: Provide more limits for juris. sending of e-mails is out of state Venue/Forum non Conveniens 1391: (a) is for diversity [where any D resides if all Ds are in same state, substantial part of events, where D is subject to PJ] (b) is for non-diversity [same except where D can be found], (c) corps reside in district where subject to PJ if district was a state Forum Non Conveniens: Piper: Strong presumption in favor of Ps choice of forum can be overcome by factors. Private Interest Factors: ease of access to sources of proof, process and cost of obtaining unwilling witnesses, view of premises, other practical problems making trial easy, fast, and cheap; Public Interest Factors: administrative difficulties from court congrestion, local interest in having controversies decided at home, forum state with correct law for diversity, avoidance of problems in conflict of law/foreign law, unfairness of jury duty in unrelated forum Transfer: For the convenience of parties and witnesses, in the interest of justice 1404: Change of Venue when court has PJ and venue 1406: Cure or Waiver of Defects: If court is lacking PJ or venue 1631: Transfer to Cure Want of Jurisdiction Subject Matter Jurisdiction Federal Question: 1331: Arising Under Mottley: Well-Pleaded Complaint Rule: P must present federal question on face of complaint and must be necessary to Ps case TB Harms: even though claim is created by state law, could arise under US if complaint discloses a need for determining meaning/application of such a law Diversity: 1332: $75k, corp is citizen of incorporation/prinicipal place of business Hawkins: presumption against federal jurisparty seeking to invoke it has burden of proof, domicile is physical presence + intent to remain Redner: citizenship is measured by date complaint is filed, if against foreign state, party must be citizen not merely resident Strawbridge requires complete diversity Corps: Nerve Center or Everyday Business Activities Supplemental Jurisdiction United Mine Workers: Common nucleus of operative facts (entire action = 1case), discretion if state law dominates, sensitive/novel state issues, confusion to jury, whether fed issues are resolved early Aldinger, Kroger, Finley: statutes must confer jurisdiction 1367: a) so relatedsame case/controversy b)if diversityno supp juris over parties under rule 14,19,20,24, or where it would destroy diversity; c) discretion: novel/complex state issue, state claim predominates, district court dismissed all claims that gave it juris, in exceptional circumstancescompelling reasons Removal 1441: a) remove if district courts have original juris; b) fed question cases are removable without regard to citizenship, diversity cases are removable only if no Ds are citizen of state the action is brought in; c)if a fed question claim is joined to state claimsremovable; f) fed court is not precluded bc state court lacked jurisdiction 1446: a) file notice of removal with short&plain statement of grounds for removal; b) within 30 days after receipt of complaint, or 30 days after receipt of amended complaint unless under diversity jurisdiction and 1 yr after commencement of action 1447: c) motion to remand on any defect other than lack of subject matter juris within 30 days after filing of notice of removal; d)remand of case is non-reviewable unless civil rights case (1443); e) if P joins Ds that destroy subject matter juris, court can deny joinder or permit it and remand to state court Metropolitan Life: Congress pre-empts area so complaint is necessarily federal Caterpillar: failure to remand case from improper removal not fatal if federal jurisdictional requirements are met at final judgment Erie Doctrine Law to be applied is law of the State no general federal common law Diversity must apply conflicts principle of forum state 1652: State Laws as Rules of Decision York Outcome Determinative Test: fed court is free to ignore state procedural rules unless it would substantially change outcome

Byrd: If outcome determinative, are there affirmative countervailing considerations of federal judicial administration (right to jury is essential for US Constitution) Rule must be bound up with definition of rights&obligations of the parties and not merely a form and mode of enforcing to be followed Hanna pt 1: State law unless failure to do so would likely result in forum shopping between state and fed ct bc of likelihood of dif outcome Hanna pt 2: if a rule is not procedural or is unconstitutional then state practice applies (how to serve process-federal) cant impinge on substantive rights Certification has fed ct ask state sup ct to answer question on state law Incentives to Litigate Punitive Damages: Oberg: Constitution imposes substantive limit on awards Gore Guideposts: 1) degree of reprehensibility of defendants conduct (harm was physical or economic, indifference/reckless disregard of health/safety of others, repeated actions or isolated, result of intentional malice, trickery); 2) disparity between harm suffered and award (single digit ratio unless egregious act with small economic damage amount); 3)difference between award and similar civil penalties State Farm: cannot punish D for acts committed outside State Injunctive/Declaratory: P must demonstrate legal remedy (damages) inadequate Sigma: balance hardship on P if relief is denied with hardship to D if it is granted 2201 authorizes declaratory judgments, and procedure is Rule 57 Preliminary Injunction/TRO Rule 65: a1) requires notice, a2) hearing can be consolidated with trial on merits, b)1TRO without notice only if irreparable harm before adverse party can be heard movant must give security to pay cost/damage Abbott: party seeking prelim injunction must show: 1) likelihood of success on merits and no adequate legal remedy and suffer irreparable harm if prelim relief is denied; then consider 2) balance harm to each if granted/denied and public interest Sliding Scale: more likely P will succeed, less balance of harm needed Fuentes: must give D hearing before being deprived (even temporarily) of significant property interest, except extraordinary situations with valid govt interest Complaints Rule 3: A civil action is commenced by filing a complaint with the court Rule 8: a) state jurisdiction, claim that entitles relief, demand for relief sought; b) respond with defense to each claim and admit/deny allegations( general denial, deny part, lack knowledge/info=denial, no denial=admitted); c)affirmative defenses if mix up defense and counterclaim the court must if justice requires treat it as if correct; d)party can state as many claims/defenses it has regardless of consistency Rule 9: pleading special matters Rule 10: each claim founded on a separate transaction or occurrence and each defense other than a denial must be stated in a separate count or defense Rule 12(b) lists defenses that must be made by motion before pleading Haddle: 12(b)(6) attacks legal sufficiency of claim (even if true, law affords no relief Ashcroft (Twombly Rule): Legal conclusions must be supported with factual allegationsPlausibility standard if P pleads factual content that allows court to draw reasonable inference (more than a sheer possibility); recitation of elements are conclusory and not entitled to be assumed true; applies to all civil actions Ethical Limits Rule 11: b) presenting a pleading, written motion, or other paper (signing, filing, submitting, later advocating) certifies that to best of persons knowledge, info & belief formed after an inquiry reasonable under the circumstances: [1)not presented for improper purpose (harass, delay, increase cost); 2)legal contentions warranted by existing law/nonfrivolous argument for modifying law; 3)factual contentions have evidentiary support or will likely have it after discovery; 4) denials are warranted by evidence or reasonably based on belief or a lack of info]; c)court can impose sanction on attorney, party, or law firm(must be held jointly liable for employee) either by motion or on courts initiativemust deter repetition of conduct; cannot impose monetary sanction on its own Walker: didnt give all info on diversitypoor knowledge of well-established law Mattel: filing meritless claim without reasonable investigation violates rule; sanctions can only be limited to paper (not conduct in depositions, behavior, etc) Responding to Complaint Rule 12: a) 21 days after service or 60 if signed waiver, 21 days for counterclaim, US gets 60 days, 14 days after a motion is denied; c)judgment on the pleadings; d) if matters outside pleading are presentedtreat as summary judgment; e)motion for more direct statement; f)motion to strike; g)joining motions - if made a motion under12, cannot raise a defense or objection under 12 that was omitted; h)waiving Default: failing to respond to a complaint enters default judgment against them Zielinski: Denial is ineffective when only portions of paragraph being denied actually didnt happenshould make clear what he is denying/admitting Ingraham: Whether a defense is affirmative: logical relationship between defense and the cause of action asserted by P (necessary element of Ps cause of action?, which party has access to evidence, policy considerations)no unfair surprise Amendments Rule 15: a) amend 21 days after service, otherwise only with consent, must respond within 14 days; c)An amendment relates back when: [1)statute of limitations allows it; 2)it asserts claim/defense that arises out of same conduct, transaction/occurrence; 3)for parties: had notice within 120 days & knew action would be brought to him Beeck: Burden is on party opposing amendment to show prejudice, bad faith, or undue delay (courts generally allow amendments [when justice requires]) Moore: actions after surgery did not relate back to actions before surgery Bonerb: Amendment that changes legal theory is appropriate if factual situation upon which the action depends remains same and was brought to Ds attention at pleading Discovery Rule 26b: 1)Scope: any nonprivileged matter relevant to any partys claim or defense, relevant info need not be admissible if reasonably calculated to lead to discovery of admissible evidence; 2)party must show info is not reasonably accessible bc of undue burden/cost in response to motion to compel, court could still order discovery if there is good cause, court must limit discovery if: [i)unreasonably duplicative or can be obtained from an easier source; ii)party seeking discovery had ample opportunity; iii)burden outweighs likely benefit];

3)Party cannot discover documents/tangible things prepared in anticipation of litigation unless: discoverable under b1 and party has substantial need and cannot without due hardship obtain an equivalent, court must protect against mental impressions, conclusions, opinions, or legal theories, OK for own previous statement 5)If claiming privilege party must expressly make the claim and give description Rule 26c: Protective Orders Davis: Other employees complaints of discrimination may be relevant for pretext Steffan: whether P engaged in homo acts was irrelevant bc case was about statement 26(a) is for required disclosures, 33 for interrogatories, 36 for admissions, 34-5 for production requests, 27-32 for depositions Marrese: motion to limit discovery requires comparison of hardship to parties of allowance/denial Privilege can be waived by failing to assert it or disclose to a third party Upjohn: Control Group Test: If employee making communication can control decisions then he personifies corp and has privilege; broader: middle/lower employees can by actions embroil corp in legal difficulties and will have the relevant informationprivelege is greater than convenience of discovering for govt Hickman: Without necessity/justification to secure written statements, private memoranda, and personal recollections prepared in course of legal duties, production could be justified if witness is no longer availablemust show substantial need (for impeachment/corroboration) and inability to obtain equivalent material Resolution Without Trial Rule 41 Dismissal: Voluntary Dismissal by P: before being served answer or stipulation by all parties, or by court order (without prejudice); Involuntary dismissal by Ds motion = adjudication on merits; rule applies to counterclaims Rule 55 Default Judgment: fails to plead or defend ADR act of 1998 each fed d ct to implement an ADR program Morgans Foods: Rule 12 gives court authority to order litigants to participate in mediation & gives judge authority to impose sanctions for failure to comply person with authority to negotiate must be present and memoranda must be submitted Federal Arbitration Act: agreements to arbitrate are valid as matter of federal law Ferguson: Arbitration agreements are enforceable unless grounds that eist for revocation of any contract procedural unconscionability: oppression/surprise; substantive unconscionability: compels arbitration for claims employees are most likely to bring and exempts those that Countrywide would most likely bring, fee provision gives employee any expense beyond usual costsinsidious pattern Carter: Strong presumption in favor of arbitrationparty seeking invalidation has burden of establishing validity (texas law does not hold K unconscionable) Rule 56 Summary Judgment: until 30 days after close of discovery, opposition to motion within 21 days after service; no genuine issue as to any material fact judgment as a matter of law (based on pleadings, discovery, affidavits); affidavits must be made on personal knowledge&set out facts admissible as evidence Lundeen: The clear affidavits from the only persons in a position to be aware of a factual situation can serve as a basis for a summary judgment, as long as affiant is not biased, dishones, mistaken as to facts and his affidavits are internally consistent Cross: Summary judgment is not appropriate where inferences parties seek to be drawn deal with questions of motive, intent, and subjective feelings & reactions Celotex: No requirement that moving party support its motions with affidavits or other similar materials negating the opponents claimsburden may be discharged by showing there is absence of evidence to support nonmoving partys case Jury Trial Seventh Amendment: Right to a trial by jury shall be preserved Rule 38: On any issue triable of right by a jury, a prty can demand it Suits at common law get a jury triel while courts of chancery (equitable remedies) do notLook to see whether a given claim lay within common law jurisdiction in 1791 Terry: 1) compare statutory action to 18th centry actions; 2)examine remedy sought as legal or equitable in nature Torcomian: joinder of an equitable claim/relief with legal claim/relief will not defeat jury trial equitable main claim wont preclude jury on legal compulsory counterclm Questions of law go to judge and questions of fact go to jury Dobson: interpretation of type of K is question of fact (legal effect is result of facts) Reid: Where the undisputed evidence of P points with equal force to two inferences, one of which renders D liable and the other not, the P must fail (Cow) Rule 50 JML: a)if ct finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the partyjudgment as matter of law (any time before case is submitted to jury); b)28 days after judgment movant can file a renewed motion for jml with request for new trial; c)if grants renewed jml, it must conditionally rule on any motion for new trial Chamberlain: where there is direct conflict of testimony upon matter of fact, must be for jury, but here there is no conflict (no direct evidence & 1 testimony is suspicious) Rule 59 New Trial: a) for any reason one has heretofore been granted (28 days) Granted when process leading up to verdict was flawed or verdict was unjustifiable Lind: motion for new trial on ground that verdict was against weight of evidence is ordinarily nonreviewable bc within the discretion of the trial court (not for procedural defect leading to verdictstandard is great weight of evidence Judge can order new trial limited to issue of damages or remittitur/additur Claim Preclusion (Res Judicata) Heaney: Former adjudication concludes parties and privies for every matter offered & received to sustain/defeat the claim and to every matter which might & should have been litigated in 1st suit ; damage and mandamus not required consolidated Policy: litigation which is repetitious/inefficient burdens parties/judicial system 1738: Full Faith & Credit Frier: Narrow Cause of Action Test: evidence necessary to sustain a second verdict would sustain the first (causes of action based on common core of operative facts) Modern Restatement Test: Claims arising from single Transaction (matters related in time, space, origin & motivation) must be litigated in single lawsuit Rule 13(a) Compulsory Counterclaim: pleading must state claim if it arises out of the same transaction or occurrence & if party added doesnt defeat jurisdiction

Martino Common law compulsory counterclaim rule: res judicata bars a counterclaim when its prosecution would nullify rights established in prior action Gargallo: fed ct determines preclusion by whether state ct would preclude it Rule 41(b) Involuntary dismissal operates as adjudication on the merits Semtek: dismissal on statute of limitations does not preclude in states that have a longer stateu of limitations (preclusive effect in fed diversity action should be same if a state ct in the forum state had rendered it) Issue Preclusion (Collateral Estoppel) When an issue of fact or law is actually litigated and determined by a valid and final judgment and the determination is essential to the judbment, then it is conclusive in a subsequent action between the parties, whether on the same or different claim prevail on civil burden of preponderance does not mean it could for reasonable doubt Parks General Verdict: if jury could have decided on two grounds, no preclusion Benson&Ford: Privity: person so identified w other represents the same legal right A non party will be considered in privity when: 1)nonparty has succeeded to a partys interest in property, 2)non party who controlled the original suit, 3)if interests were represented adequately by a party in the original suit; not enough that nonparty supplied attorney, helped to finance litigation, testified as witness Virtual Representation: party to 1st suit is so closely aligned with nonpartys interest A party who has never had an opportunity to litigate an issue cannot be precluded Defensive CE: P was estopped from asserting claim he had previously litigated Offensive CE: P is seeking to estop D from relitigating issues he litigated before Parklane: where P could easily have joined in earlier action or application of offensive estoppel would be unfair to Dnot allowed to use offensive estoppel Century Home: Where outstanding determinations are actually inconsistent on the matter sought to be precludedestoppel is unfair (half win/half lose) Restatement: party is precluded from relitigating with an opposing party is also precluded with another person unless he lacked a full and fair opportunity to litiage the issue or: incompatible with scheme of administering remedies, forum in 2nd action has procedural opportunities not available originally, person could have effected joinder, determination was inconsistent with another determination on same issue, based on compromised verdict, issue is law so cannot reconsider legal rule Joinder Rule 18(a): party can join as many claims it has against the opposing party 1367 grants supp juris on: 1) basis of original jurisdiction; 2)identity of party seeking to invoke supp juris; 3) the Rule authorizing joinder of party/claim Rule 13: Compulsory/Permissive Counterclaims Plant: Test for same transaction/occurrence: issues of fact/law the same?, would res judicata bar a subsequent suit on Ds claim?, same evidence support claims?, logical relationship,[underlying debt is compulsory in truth-in-lending cause of actions] Great Lakes: Counterclaim is logically related where separate trials on each claim would involve a substantial duplication of effort/time [claims that D had bad faith] Rule 20/21 Joinder of Parties: join as P or D if assert any right to relief arising out of same transaction, occurrence, or series of transactions or occurrences and any question of law/fact will arise in action; Misjoinder is not a ground for dismissal Rule 42 Consolidation: court can join any/all matters at issue, consolidate the actions, issue other orders to avoid unnecessary cost/delay; or separate trials Mosley:All logically related events entitling person to legal action is regarded as same transaction/occurrence; discriminatory character of Ds conduct is same Rule 14(a) D can bring 3rd party if he is liable for all/part of claim against it Watergate: 3rd party must be secondarily or derivatively liable to D in the event D is held liable to P (cant say its not me, its him) [breach of K ==negligence] Rule 19: Compulsory Joinder: if doesnt destroy subject matter juris, party must be joined if: court cant accord complete relief, person claims an interest in action (judgment may impair their interest, give party risk of inconsistent obligations); if cannot be joined look at factors: (prejudice, other options, adequate remedy?) Temple: A tortfeasor with joint and several liability is permissive Helzbergs: person is not indispensible simply bc their rights will be affected Class Actions Rule 23: a) 1)numerosity 2)commonality 3)typicality 4)adequacy of representation; b1)separate actions creates incompatible standards of conduct or individual adjudications would be dispositive of interests of other parties; b2)D has acted on grounds that apply generally to the class so injunctive relief is appropriate for whole class; b3)common questions of law/fact predominate and class action is superior (interest in individually controlling law suit, extent of litigation already begun, desirability of concentrating claims in particular forum, manageability concerns) c) certification best notice practicable with individual notice to all members identified through reasonable effort, with chance to request exclusion; d)conducting the action; e)settlement notice, hearing that it is fair, if under b3, must have opportunity to exclude; h)attorneys fees Communities for Equity: rigorous analysis into prerequisites before certification; adequacy of representation (rep must have common interests, rep will vigorously prosecute interests through qualified counsel) Causey: Mass accident should be class action where: limited to issue of liability, members support action, choice of law problems are minimized by action occurring/all plaintiffs in same jurisdiction [dif damages will not make incompatible obligations under 23(b)(1)] Hansberry: A judgment in a class action binds absentee members only if they have been adequately represented Shutt: forum can adjudicate claims of absent members absent minimum contacts Eisen: Best notice practicable under circumstances (individual notice to members who can be identified through reasonable effort) Castano: immature tortany judicial resource savings is speculative and procedural problems overwhelm any imagined savingsjudicial blackmail bc all-or-nothing Amchem: for settlement-only class certification, dont look at manageability problems but heightened attention towards blocking overbroad class definitions (interests are not aligned in this medical case)