A. raised sua sponte at any level. Unwaivable. I. Diversity Jurisdiction District Courts have original jurisdiction over cases where (1) controversy exceeds $75,000 and (2) is between (a) citizens of different states; (b) citizens of a state and citizens of a foreign state; (c) citizens of different states with foreign citizens enjoined; (d) a foreign state as Plaintiff against citizens. A. WHY have diversity jurisdiction: 1. provide neutral forum for out-of-state parties when local bias (elected judges) might affect results 2. Speeds economic growth by giving security to out of area investors 3. Alienage jurisdiction to avoid state courts disrupting international relations and discouraging foreign investment 4. expansion of the law because diversity enables problems of national signficance to be addressed that traditionally remain under state law (med mal, corporate accountability) 5. Concurrent jurisdiction promotes competition and innovation. 6. Class actions often deal with cross border issues of commerce. A2. PROBLEMS with diversity 1. Bias does not really exist (or it would be present in federal juries) 2. chocie of law problem is difficult (forum shopping) 3. too many cases, especially criminal cases 4. favor creditors over debtors (large commercial interests) 5. Federal courts most often apply state law, and states understand their laws better than the government does 6. State courts cannot develop law if all their important cases go to US courts 7. Interfere with State autronomy B. Article III, Section 2: Judicial power shall extend to all cases arising between 1. Citizens of different states 2. Two or more states 3. State or citizen of and foreign state or citizen of 4. Tashire, 1967: Article III requires only minimal diversity. C. 28 U.S.C. 1332(a) District Courts have original jurisdiction in suits between (see above) when amount-in-controversy exceeds $75,000. 1. Need complete diversity: no single P and single D can share citizenship a. Strawbridge v. Curtis, 1806: EACH P must be able to sue EACH D. (1332 int.) D. Determining citizenship / “state” 1. Individual: domicile; state of residence, plus intent to remain a. Determined at time of filing under Rule 3, not at time of incident EXCEPTION: executor of an estate or for children. 2. Corporation: 28 U.S.C. 1332(c) a. State of incorporation, and b. Principal place of business i. Hertz, 2010: PPB where corp. has its “nerve center”—center from which 1
company’s officer’s direct, control, coordinate corp’s activities. Corp. headquarters. ii. Policy?: Corporations used to just be where they were incorporated. Too easy for them to remove to Fed court. Too many diversity cases in Fed court. EXCEPTION: insurance company (see below). 3. Insurer: 1332(c): 1. Where any insured is citizen; 2. Incorporation; 3. PPB 4. Unincorporated Association (partnerships, etc.): Each state in which one of the members is a citizen—treated as group of individual litigants. E. The Amount-in-Controversy Requirement 1. Unless it is clear to a legal certainty (reasonable jury standard that P cannot recover more than $75,000, P meets the requirement simply by a good-faith claim. a. St. Paul Mercury Indemnity Co: P’s claim accepted if: i. Made in good faith, unless ii. Clear to a legal certainty claim is for less than $75,000 b. Nothing in Article III about it; started with Judiciary Act, 1789 c. Diefenthal, 1982: Could not by “wildest stretch of imagination” recover 10k for embarassment on an airplane. d. Kahn: NV recovery limit $750; if “available legal remedy < requirement, no jurisdiction. 2. Aggregating Claims a. You can i. Join separate claims against same D ii. “Tag along.” Join second P under 28 USC 1367 if first P has valid claim and arising out of same single business dispute. b. You cannot i. Aggregate claims from separate P’s against same D EXCEPTIONS: Class actions and “Common undivided interest:” two P’s can sue a trust if amount exceeds $75k, even if it doesn’t exceed twice $75k ii. Aggregate claims against separate D’s iii. Aggregate counterclaims: requirement assessed on original complaint II. Federal-question Jurisdiction A1. WHY have FQJ? 1. Federal judiciary should have authority to interpret and apply federal law. 2. Existence of alternative forum stimulates state courts to take claims of federal rights seriously (FQJ statute enacted in 1875, as a reaction to Reconstruction in the South following the Civil War) 3. Promotes uniformity, correctness in application of federal law. Since Sureme Court decisions are few, they must be handled sympathetically if federal laws are to be followed uniformly. (Fed’l judges have life tenures and are insulated from political pressures; and as a forum for appeal, USSCO can correct unsympathetic interpretations.) A. Article III, Section 2: Original jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States. 1. Osborn, 1824: Only need federal “ingredient” in action, whether in P’s complaint or 2
D’s answer. B. 28 U.S.C. 1331: “Constitution, laws, treaties.” 1. “Arising under” interpreted more narrowly here a. Mottley, 1908: Federal ingredient must appear on the face of the P’s “wellpleaded complaint” (not D’s anticipated answer) (P had free RR tickets). b. Holmes test: suit arises under the law that creates the cause of action c. Declaratory judgment: Wycoff, 1952: Since declaratory judgment reverses the posture of the parties, look to the character of the threatened action—what P would claim. 2. Exceptions: Plaintiff’s right to relief under state law necessarilly depends on resolution of a substantial, contested question of Federal Law. 2-prong test in “d”. a. Franchise Tax Board, 1983: Jurisdiction if well-pleaded complaint creates cause of action, or P’s right to relief necessarily depends on resolution of substantial question of federal law. b. Smith v. Kansas City Title & Trust, 1921: Smith must show KC violated charter, so must show bonds invalid, so must show Congress exceeded authority in creating. Claim (in state contract) necessarily depended on resolving question of federal law. c. Merrell Dow, 1986: P alleges drug negligently manufactured because didn’t label under FDCA. No federal cause of action. Held: Allowing claim would “open floodgates” to wave of litigation and controvert congressional intent. d. Grable, 2005: IRS takes title to property; Grable says no proper notice of seizure. Held: A cause of action satisfies 1331 when i. Claim necessarily raises disputed and substantial federal issue; ii. Court may hear without disturbing federal-state court balance. iii. Gully, 1936: pick “substantial” causes using “common sense” C. The Test for Federal-question Jurisdiction a. Is the cause of action created by federal law? i. Yes—there is jurisdiction ii. No a. Cause of action created by state law; must see how federal law enters litigation b. Does federal law come in as a defense the P anticipates? i. Yes a. Mottley, well-pleaded complaint rule—no jurisdiction ii. No a. Comes in as part of P’s claim c. If federal law comes in as part of P’s claim, use Grable. i. Is resolution of the federal issue necessary? Yes to move on. ii. Is the federal issue substantial / important? Yes to move on. iii. Would exercising jurisdiction upset the division of labor between state and federal courts contemplated by Congress? If no, there is jurisdiction. a. That is, would allowing claim likely cause a significant number of similar claims to be brought in federal court? D. Narrow Exception a. If P’s claim satisfies Holmes (created by federal law), but all questions are 3
Removed to the District Court in control of the area where that state suit is pending. 1441(e) Fed Court is not precluded just b/c original state court did not have jurisd. Procedure After Removal—1447 A.
. but no removal after 1 year C. 1441(a) If multiple defendants. 1441(b) EXCEPTION: Diversity case is removable only if no D is a citizen of the forum state (but any federal question case can be removed without regard for citizenship) 1. view. short and plain statement for grounds B. 1441(d) civil actions against foreign states E. 1900: Federal law authorizes suit over mining claims. D must notify all other parties III. 1447(c) Motion to remand for lack of subject-matter jurisdiction. No jurisdiction. “Forum defendant rule”—local courts likely not biased against in-state D C. no jurisdiction i.
I. 1447(d) Order to remand not reviewable on appeal D. entire case can be removed D. 1446(b) D must file notice within 30 days after receiving pleading.) that case has become removable. or notice (amended pleading. etc. Procedure filing —1446 A. directs suits be decided by local rule.questions of state law. A. 1446(d) Once notice for removal is filed. E. II. 1447(e) Court may deny joinder after removal if it will destroy SMJ. state court cannot proceed. 1446(a) D files notice of removal in federal district court. In general. Shoshone Mining. 28 USC 1257 allows US Sup Ct. to take cert in cases from state Sup Cts. D can remove to federal court if P could have filed there originally. 1441(c) If state and federal claims. Supreme Court Review a. That involve “ingredient” / broad Const. motion to remand for any other reason must be made within 30 days after removal C. all must agree to remove B. 1447(b) District Court may order movant to file all records of state proceedings B.
1945: Int. For in rem jurisdiction. only property in forum state a. Hess. Societal Changes After Pennoyer A. Must issue writ of attachment prior to judgment to assert control over property. 3. Milliken. Pennoyer v. P can a. Neff. notion of “presence” expanded B. Olberding. state can’t reach into another state to exert authority. Fictive Consent 1. History A. DE and MO. 1850: Full Faith and Credit only applies when D is served with process in state where judgment rendered. Recover from D’s assets b. More interstate activity. Shoe. Other Modifications 1. statute stipulates Hess. 1878: 1. The authorty to require the Defendant to appear in the forum and defend the action there. Refuses to pay tax. Ketchum.” If benefits give rise to liabilities. PJ even when claim doesn’t arise from contacts. but must first attach it to establish authority. II. 4. 1940: Domicile sufficient for jurisdiction. D’Arcy v. Authority to require D to appear and defend in forum. court can exercise authority over property in state. In rem jurisdiction 1. 5
. Basis 1. State may not deprive person of property (by judgment) without due process of law: (1) have requisite basis of Power and (2) B. Use Full Faith and Credit Clause to take judgment to another state to recover C. International Shoe. appointed Registrar as agent of process. D. 1927: Hess. Contacts Analysis: Int. For in personam jurisdiction. Is company “present” in WA to extent necessary for jurisdiction? 1. injures Pawloski in MA. 1953: Saying motorist “consented” is to “move in world of Alice” D. PA. which can be sold to satisfy claim D. III. D need not be present. 2. by driving in MA. Shoe A. does business in WA. In personam jurisdiction 1.” I. Due Process requires that in order for a court to have Personal Jurisdiction over a Defendant there must be “minimum contacts” such that the nature of the suit doesn’t offend traditional notions of fairplay and substantial justice. D must be served within state boundaries. Court has no power over D’s person. Single or isolated contact—PJ only if contact gives rise to action. “Continuous and systematic contacts”—general jurisdiction. a. but must have contacts such that PJ doesn’t offend “traditional notions of fair play and substantial justice” (Milliken) 2.Personal Jurisdiction
A. Waivable. Corp that conducts activities in state enjoys “benefits and protections of its laws. State can exclude nonresident until formal appointment of proxy for service made. even if not served in-state. fair for D to have to respond in state. 5th / 14th amendment: due process a.
Contract has substantial connection to CA c. In general. WHY have contacts? 1. CA has interest in dispute—CA citizen ii. No 6
. In state where process is served Burnham B. Inc. Any employees in state? vi. Yutopian Enterprises. Considerations for general jurisdiction from Goodyear. no agents. Does D have such “continuous and systematic contacts” that it is “at home” in state? 1. Sondergrand. Solicit business in state? v. Over natural person 1. where general jurisdiction was not found: i. Solicited business in CA b. In state where it has its principal place of business V. is present in all fifty states. 1993: Alka-Seltzer can be sued in SD over claim arising in Utah. suit in NC against Goodyear subsidiary from Turkey. because no physical presence. Marine Management. Son is only CA customer. Any advertising in state? iv. Reyes v. Any physical presence in state? iii. Helikopteros. In state where incorporated 2. International Life took on policy. if you “carve out” forum market. In state where he is a citizen Milliken 2. Mother sues in CA. does it look like a local business? e.B. no offices. d. Inconvenience to D does not outweigh C. Sells tens of thousands (out of tens of millions) of tires in NC yearly. 1991: General jurisdiction in LA over Hong Kong shipping company because company had corporate office in LA. d. who had purchased insurance from AZ corp. 1984: Texas resident killed in helicopter crash in Peru. Usually lies where corporation has a continuing physical presence a. PJ because: a. mailed certificate to CA offering son insurance. Contacts and Reasonableness 1. b. Registered to do business in state? ii. Reasonableness factors i. relation to whole? vii. 1957: P seeks to collect on insurance policy following son’s death. General jurisdiction: Applying “presence” analysis when suits are not related to D’s activities in forum state A. Ensure states do not reach out from their authority IV. protects the D from burdensome litigation 2. Volume of in-state business. Robbins v. 2011: Bus crash in France. General jurisdiction is always available… A. Goodyear Dunlop Tires Operations. Over a corporation 1. 2002: No general jurisdiction in MD over CA company that had conducted 50 transactions in MD in last year and marketed in MD. Convenient for P to try in CA iii. McGee.
likely jurisdiction even if some factors not satisfied VII. does not confer jurisdiction in any one state. Activities: i. Roberts ii. When a D injects product into “stream of commerce”… (good args in McIntyre below and in class notes. Activities supervised from OH VI. a. Consider location of evidence. President had offices in OH ii. Designating sales agent for state iii. Files kept in OH iii. Internet purports to use different rules. Mere foreseeability for national / international distributor not enough—need some other act indicating purposeful availment and “submission to authority” a. not unreasonable for them to defend claims on an international scale. Denkla. 7
. such that it could reasonably expect to be haled into court in the forum state? BK 1. Second approach: stream of commerce okay because “fair”—foreseeability i. Specific Jurisdiction Test: Applying minimum contacts analysis when the suit arises out of D’s activities in forum state 1.” e. witnesses 5. Interests of forum state in adjudicating the claim 3. Often through distributor (McIntyre) or sale to third party (Asahi) b. Is the lawsuit related to these contacts? 4. 1952: General jurisdiction over Philippines corporation satisfied in OH i. O’Connor. Sent executives to Texas for negotiations ii. invoking the benefits and protections of its laws Hanson v. Only plurality opinions so far c. If contacts exist. Interstate judiciary’s shared interest in obtaining convenient resolution of controversy a. Consider comity among the states RESULT. Burden on defendant 2. but reasonably straightforward (see below) 3. If so. Was there an act by which D purposefully availed itself of the privilege of conducting business within the forum state. Perkins. Specific Jurisdiction and the Stream of Commerce A. is the exercise of jurisdiction otherwise fair and reasonable? Consider… 1. Does the state long-arm statute provide for specific jurisdiction? 2. Designing product for forum market b.S.general
jurisdiction in Texas. Accepted checks from Texas iii. Shared interest of states in furthering substantive social policies a. Intent to sell generally in U. Advertising in forum state c. P’s interest in obtaining convenient relief 4. “Stream of commerce” is somewhat unsettled (see below) 2. First approach: “stream-of-commerce plus” i. WW: “If sale… arises from the efforts of manufacturer or distributor to serve. Sent personnel to Texas for training f. d. Superior Court in Asahi: “Does business on international scale. When a customer takes product into forum state—no jurisdiction without other contacts World-Wide 1.
1. Up to 4 M scrap-metal machines in NJ—biggest scrap-metal state 4. own property. Stream of commerce okay—foreseeability / benefit = fairness / not fair + reasonable otherwise 3. SC: No. “every seller of chattels would appoint the chattel his agent for service.” B. C. did not design / control system of distribution bringing product to CA. World-Wide Volkswagen. (OH) 1. Some US patents 5. Confusion about above line from WW: “If sale arises…” b.” 7. 1980: NY distributor. M did not exclude itself from NJ. US business through distributor—McIntyre Machinery of America. NY retailer. M officials attended Vegas trade shows.) Asahi: no direct sales in CA. sues M in NJ. Cheng Shin impleads Asahi. Kennedy + 3: PJ is about submission to authority by purposeful availment 1. PPB 5. NJ processes lots of scrap metal. Fair + reasonable: steps on toes of no other states (Kennedy would say: inappropriate exercise of jurisdiction always steps on toes—NV might be suitable)
.directly or indirectly. Unwilling to say stream of commerce never sufficient—“regular and anticipated flow” might do it b. fair / reasonable factors. Domicile 3. pay taxes. “Free-form notions of fairness… cannot transform a judgment rendered without authority into law. not fair / reasonable suffices D. solicits no CA business. Consent is a legal fiction—should be about “fairness” 3.” a. Single.A.A—indicates submission to authority. Gisburg + 2 1. c. tire-maker. Doesn’t decide on stream of commerce. Doesn’t join dissent—concern for small manufacturers 8. PJ in OK? Court says yes—writ of mandamus. M incorporated in England. isolated sale—stream of commerce not enough. No NJ contact here because no P. etc. Incorporation 4. J. Customer took car to OK—WW profited back in NY. property. Settlement: now. Product into stream of commerce not enough—must expect product to reach forum state. 2. Explicit consent 2. Breyer + Alito 1. 2. motorcycle accident. Else. Asahi. Brennan: Contacts not necessary. Brennan + 3 a. Car driven to OK—blows up. Distributor sells all over US at M’s behest. have offices. D must purposefully direct act toward forum state: advertising. C-S v. 2. have agents in NJ 6. Just balance extent of contacts. P. the market… not unreasonable. 3. 2. 1. 1987: Zurcher. need more a. Asahi. agents. (Writ. designing product. valve-maker. 2011: Nicastro injured. sues Honda and Cheng Shin. sales agent. Does not advertise. Stevens a. Not fair + reasonable: shared interest of nations. McIntyre Machinery. engaged distributor to sell product where it could in US 2. etc. O’Connor + 3: “Stream of commerce plus” a. no offices.
X.VIII. Use normal fair and reasonable factors in Section VI B. Keys 1. Payments under contract go to FL 5. Hustler purposefully availed itself of benefits of NH law (sells in NH. CA. sues National Enq and writer and editor. Consider i. Hustler. too IX. editor. Rudzewicz. availing himself of benefits 3. Sources came from Forum state B. Nature of contacts / purposeful availment for writers 1.) D. Keeton v. Purposeful availment—you can sue there. national magazine. Choice-of-law provision does not confer jurisdiction 3. D reached into forum state to enter into contract. Is contact directed at the forum market? a. Provisions of contract iii. Knowingly wrote about CA resident. Calder v. Zippo. 1997: Test for specific jurisdiction for websites (though hasn’t been dispositive authority) 1. BK can sue in Florida on basis of Rudzewicz’s contact through contract because 1. d. P incurred injury in CA. Subject had particular interest for CA residents. because a. Experience under contract 2. Place and manner of negotiation (did D have a choice)? ii. Jones. Florida. Volume of sales in forum state? i. etc. 2. B. 1984: Keeton sues Hustler. Specific Jurisdiction and Contracts A. Even though a. 1985: BK. c. Party not necessarily amenable to suit in forum because other party resides there a. For national magazines. in Michigan. Breach of contract caused foreseeable injury to FL plaintiff 4. Contract governed by law of forum state (availed himself of laws) 2. 1. for libel in NH. Knowledge that P would be injured in forum state? c. 1. Specific Jurisdiction and the Internet A. Interactive websites where users merely exchange info (Google): maybe jurisdiction 9
. Specific Jurisdiction and Libel (see also “and internet”) A. Maintaining a website does not confer general jurisdiction. Forum-selection clauses usually bind if forum has reasonable relation to state a. Knowingly caused injury to person in CA. Jurisdiction over magazine under Keeton. almost always sufficient contacts d. the test for internet contacts is just the test for contacts. Interactive websites where users buy or sell: jurisdiction 2. Jurisdiction over writer. Normal reasonableness factors C. enters into contract with Rudzewicz. Burger King v. 1984: Jones. Rudzewicz spent almost no time in FL and dealt with regional office 6. In general. Of particular interest to forum citizens? b. b.
No jurisdiction… 1. How to Challenge Personal Jurisdiction A. Object in answer or file 12(b)(2) motion C. so a. Held: 10
. 2002: Story about CT residents in VA prison. Cited no Texas sources 3. Paper knew warden lived in VA. New Haven Advocate. etc. F. Jackson sues for libel in IL. D did not know P lived in Texas. Hit was to national. Risky. No VA jurisdiction. Evidence in both IL and CA d. can only challenge on PJ grounds. Attachment a. Post-judgment attachment: Court attaches property after judgment to compel D to pay.3. Revell v. 1. CA news on site a. Otherwise fair and reasonable? a. No specific jurisdiction because 1. 2005: CA media group posts story on website alleging steroid use. contest nothing but PJ B. 4. IL has little interest—no IL subscribers. Shaffer v. Merely maintaining a website does not equal general jurisdiction. In rem jurisdiction: jurisdiction “over a thing” (piece of property. Website directed at CA residents—CA weather on site. Burden on D b. 2. D did not know Jackson lived in IL 4. Zero IL subscribers to e-newspaper or print newspaper—doesn’t aim at IL 3. D. Passive websites with no interactivity: no jurisdiction C. not IL. 2002: Texas resident sues NY website in Texas. so did not direct activities there 2.) 1. “Quasi:” court can declare who has best claim among litigants a. Lidov. Collateral attack—challenge when D tries to collect. Jackson v. but story designed for CT residents. Special appearance—show up. Did not avail itself of VA market. etc. If D knows P lives in forum and many subscribers there—probably jurisdiction. Heitner. Type 1: Issue is who owns the property—better claim to it b. California Newspapers Partnership. little chance of repeat c. Comity? Toss-up—internet is complicated. XI. Pre-judgment attachment: Court attaches at outset of case (to give notice of claim to potential buyers) to establish in rem jurisdiction b. Pre-judgment attachment for security: Court attaches property during proceedings if it suspects D might move property to avoid payment c. Young v. Other Bases for Jurisdiction A. court can order sale. Type 2: Not issue of property—want property to satisfy another claim 3. Transitive Attachment: Sprint ordered to pay $ to victims. XII. reputation 5. 1977: DE court sequesters D’s shares in Greyhound corp over claim arising out of contacts in Oregon. Did not think story of particular interest to Texans E. (Garnishment of wages) d. “True:” court can declare true owner of property (as against the world) 2.
So. under the circumstances. Under Pennoyer. You would need the reason D owes $ to come from their owning of that property 3. Stevens: don’t need to choose. Usually fine for true and Type 1: property interest is contact. 11
. Int. Brennan and 3 others: must satisfy “contemporary notions of fair play and substantial justice. “Notice reasonably calculated. not necessary. Wife files for divorce in CA. Shoe. In those circumstances. I. the oppostite. but knew letters had been returned and no actual notice given. a. Argue/ weigh the costs of further options with limited resources. an exercise of in rem or quasi in rem jurisdiction must satisfy 3-prong Int. a. Burnham v. Not always for Type II—property sometimes unrelated to claim i. interest over person himself. to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Shoe satisfied here because of purposeful availment— business. Jones v. Price Waterhouse. both work D. Shoe is a stand-in for physical presence. B. v. must take reasonable steps to provide notice. serves Burnham while he is there on business. which has always been sufficient. Harry. In rem jurisdiction is jurisdiction over a person’s interest in property. Shoe contacts test. 1998: Service on one partner in state establishes jurisdiction over partnership. No absence. v. b. Due Process does not require actual notice. “All assertions of state-court jurisdiction must satisfy Int. Shoe. Transient Presence A. Proper service of process requires that the service both be in lines with DPC and FRCP. Sufficient? Marshall in Shaffer suggests not.” Mullane a. Corporations under Transient Presence 1. Most things are usually fine except for notice by courthouse posting or publication. 2.” a. roads 3. 2.” Mullane b. A. a. 1927: Service on corporate officer not sufficient in state where corp does not do business and is not found. just… 1.1. James Dickinson State Farm Mortgage Co. 1. Flowers: Little Rock seizes. 1990: Burnham and wife agree to divorce in NJ.” but Int. First American Corp. no problem. Commissioner followed statutory scheme. Service on transiently present corporate officer does not confer jurisdiction over corporation—legal entity separate from members. Partnerships. Scalia and 3 others: Int. a. b. Under Int. resells Jones’ house because he stopped paying taxes. 2. Superior Court. service in state is necessary + sufficient for PJ. Means employed must be “such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. Shoe is about absent D’s. Basically. What about in-state service? B. but… C. Notice and Service of Process A1. etc. even if officer there on company business.
associations b. Form of summons. Be directed to the defendant c. D in judicial district litigating the case. P d. FRCP 3 Commencing Suit 1. 30 days for D within judicial district. Court may extend time or dismiss without prejudice. If not. Be in writing and addressed to D. by anyone i. 4(c) Service of process must include both summons and complaint. Allow D reasonable time to return waiver a. D located in foreign country at time of service. If summons meets format requirements. FRCP 4(m) Service of process must then occur with 120 days of filing. ii. clerk certifies summons and issues it to P so P can serve defendant. Over 18 years of age 4. FRCP 4: Statutory requirements for notice in the federal courts 1. Be accompanied by copy of complaint. 60 days after waiver request (90 if outside U. Could be completely frivolous at this point. Bear the court’s seal 3. 4(d). Must satisfy both Due Process and FRCP: C. v. If good cause not shown. Identify court where complaint filed. court must i. a.B. a. D corporations. 1. D who waives must answer complaint within a. 4(c). or. 2. b. 2. D. D’s with a duty to waive service: i. vii. Be sent via first-class mail or other reliable means. 60 outside viii. Name the court and the parties b. State date on which request was sent. Summons must be served with copy of the complaint. An action is commenced when a party files a complaint with the court. Be signed by the clerk g. a. or ii. State time within which D must appear and defend e. presents summons to clerk for signature and seal. Provide D with extra copy of request and postage c. Order service to be made within specified time. Service (who can serve) a. Time to answer after waiver i. If P shows good cause. iv. there is no pre-screening. vi. 4(a). Informed D of consequences of waiving / not waiving service. if unrepresented. A summons must a. Not a party to the suit.S. Court must grant extension. iii. Form of waiver request: Must: i. iii. ii. 4(b) After P files complaint. partnerships. and ii. Notify D that failure to appear and defend will result in default judgment for relief demanded in complaint f. Dismiss the action. Waiver of service a. State name and address of P’s attorney. judicial district) 12
Proving Service i. How to Serve types of parties a.b. Parties outside U. c. Serving a natural person i. increased from normal time as a benefit/incentive d. court may a. managing agent. process can be served out of state. Leaving copies at D’s dwelling or usual place of business with someone of suitable age and discretion who resides there. Order D to pay reasonable expenses in motion to collect expenses e. 2. As permitted by law of state in which the federal court is located. As permitted by law of the state in which P serves process on D. or general agent of entity (like a CEO). Shoe. Since authority runs past border. Under Pennoyer. search. PJ. Deliver copy of summons and complaint to officer. Not the Same Thing 1. 5. Publication disfavored. Last Resort i. As permitted by law of the state in which the federal court is located. OR ii. Deacon: Not allowed after comp. OR ii. Statute of Limitations Trap i. 4(g) serving a child/incompetent i. commonly iii. each a venue. 63 of course pack. States: many venues (OH. If D within U. OR iii. Order D to pay expenses in making service b. By server’s affidavit. 4(f). Gaeth v. can’t serve process in State B for offense in State A. Rule 4 provides judge to use discretion to authorize service by alternative method. under penalty of perjury. E. Personal Jurisdiction and Service. Deliver papers to an agent authorized by appointment or law to receive process (often Secretary of State for corporations in state). II. 4(h).S. Deliver process to D personally (“in-hand service”). As permitted by law of state in which P serves process on D. 88) 13
. 6. Serving a domestic corporation or other entity i. Refers to particular court within court system where P may file suit 1. Federal courts: 94 districts.S. Mail. iv. service of process) d. ii. OR a. Venue (waivable) A. (see class notes pre-trial. state’s authority runs to border and no further. 4(l). c. fails without good cause to sign and return waiver on P located within U. This can effect SOL that put the limit on date of service. Failure to Waive i. Deliver summons and complaint to agent of defendant authorized by appointment (old folks—power of attorney) or law (Hess) to receive service of process b.S. 4(e). Under Int. p.. FRCP 4(d)(4) service of waiver occurs when the waiver is returned. v. within due process for State A to reach into another to hale D into court. iv.
S. and D. A judicial district in which a substantial part of the events or omissions giving rise to claim occurred. venue lies in a. 1391(b) In a civil action not based solely on diversity. etc. if no other viable venue (possible that only proper venues will not have PJ). A judicial district in which any D is subject to personal jurisdiction. b. Residence determined “at time action was commenced”—so. To one or both of the parties C. i. Non-corporate entities: MacCallum: treated like corporations for venue 4. Usually crops up for claims arising outside U. Meaning of a. Court is conveniently located and 2. Subsection 3 (c. or c. d. Uffner: suit over insurance contract in England. not a single triggering event.B. above) never applies if proper venue under 1 or 2 exists a. For corporations—28 U.C. a. if all D’s reside in same state. b. If no such district… i. “Resides” . if all D’s reside in same state. The district in which it has the most significant contacts c. For individuals—domicile b. or a substantial part of property at issue is situated. 8 circuit test 14
. For venue purposes. In any district in that state within which contacts are sufficient to subject it to personal jurisdiction if that district were a separate state. or a substantial part of property at issue is situated. if you waive personal jurisdiction. 28 U. i.S. Subsection 3 (c. Non-corporate entities (partnerships. Hardly furthers convenience and reasonableness th b. France. A judicial district in which any D may be found. usually considered as a corporation. Sometimes as a collection of individuals. Point is to ensure location of suit is reasonable and convenient. a corporation resides in: a.S. Most courts look to entire sequence of events leading to claim. or c. 3. Georgia for sunk boat. If state has more than one district… i.C. or 3. Has some relationship to the lawsuit. Venue requirements exist to ensure: 1.C. above) never applies if proper venue under 1 or 2 exists 2. given location of evidence. witnesses. “Substantial part” test a. 1391(a) In civil action based on diversity. A judicial district where any D resides. Venue is proper in Puerto Rico because the insured boat sank there. c. 28 U. if no other district where venue is proper. A judicial district where any D resides.S. i. Every judicial district in which it is subject to personal jurisdiction when action is commenced b. The General Venue Statutes 1. venue lies in a. Broad. Doesn’t even have to include all Defendants. 1391(c) i. you can still object to venue e. D. A judicial district in which a substantial part of the events or omissions giving rise to claim occurred.) i.
MacMunn v. Local interest in deciding this case at home (comparative) iii. D’s choice of forum iii. Which rule to use: Bad Venue Good Venue Transfer USC 1406 USC 1404 Dismis USC 1406 Forum non conveniens 2. No state to federal. where P lives and where ingestion of DES occurred. c. P’s choice of forum a. Defendant seeking change of venue must show: i. Considerations of convenience and interest of justice weigh in favor of transfer: a. ii. Relative congestion of dockets iii. Ease of access to evidence b. Dis. 1400 – copyright and patent infringement c. Convenience of parties v. 2008: DES case is transferred from DC to MA. Usually given deference unless other factors strong ii.i. Specialized venue statutes: supercedes normal venue rules. Whether claim arose elsewhere iv. any judicial district in the state alleged…and more (p. Cure or Waiver of Defects i. or state to state 15
. or intra-system transfer to a venue where the case could have been brought. re-service. Change of Venue (even if original venue is proper) a. 1402 – FedGovt: where Plaintiff resides or incident at issue occurred b. Transfer for improper venue a. a.C. federal to state. Case by case. in the interests of justice. a. District Court may transfer to any other district or division where it could have been brought. Convenience of witnesses vi. SOL b. For the convenience of parties and witnesses. Venue). Eli Lilly Co. Event must be point of dispute between parties 5.C. 1404. usually in interests of justice i.S. 371) E. If venue is improper. 2000 – employment discrimination cases i. Transfer. Private-interest factors (Private alone not enough to override P’s choice of forum i. not dismissal. if it is in the interests of justice. District Court shall dismiss. b. D must be responsible for forum-related event ii. Limits on transfers: no intersystem i. 28 U..S. 1406. 28 U. PJ. subjects P to refiling costs. Transferee court’s familiarity with governing laws ii. Public-interest factors i. P could have brought claim in transferee venue under 1391 (SMJ. Transfer of venue 1.
1. Is there a suitable alternative forum? a. If not. P would be killed for bringing action in Iran. and case can be brought in Scotland. Reno: CA resident sues CA over Scotland plane crash. b. D’s used to argue they would have waived PJ i. Piper Aircraft v. If there is. If convenience / justice suggest case can and should be heard in a foreign jurisdiction. no forum non conveniens dismissal. 16
. Transferee court must have SMJ. Gonzales v. Having to learn the foreign law 5. Private-interest factors a. don’t dismiss i. Relative congestion of dockets c. P not in Scotland because US has better law. What is P’s choice of forum? How much weight to accord? a. Forum non conveniens is a common-law doctrine B. Narrow exception for clearly unsatisfactory remedy: if inadequate. $2500 cap in wrongful death. even where capped at $2. 3. c. Local interest in deciding controversies at home d. case ends up in PA. D not amenable to process? b. Ease of access to evidence f. not trial. unsatisfactory. Forum non conveniens: the test 1. don’t want inconsistent verdicts and need their testimony 4. D’s can’t implead Scottish 3rd-party D’s. More weight if home forum b. Plymouth Whalers: Denied. Forum non conveniens A. Rasoulzadeh: Denied. dismissal granted. no remedy available. Chrysler: Granted.500 Gonzalez v. Public-interest factors a. C. Any 3rd Party Defendants that can get in there i. Because Scottish law might govern. Whether claim arose elsewhere d. D’s choice of forum c. Intrasystem transfer limits i. judge can dismiss the case. Less if chosen for favorable law i. have it all out at once. a. 1404(b): can transfer to any division within the court district III. Hoffman: “could have been brought” includes “without need for waiver” ii. proceed 2. Chrysler Corp. Judges lack authority to transfer case out of own court system. P’s choice of forum b. PJ a.d. Clearly unsatisfactory remedy? ii. Mexico site of purchase / accident. Transferee’s familiarity with governing laws b. Canada offered administrative procedure unlikely to yield remedy. Convenience of parties e.
or. delay. Document not prepared for improper purpose: harass. information. increase costs ii. Answer to cross-claim e. Factual contentions have evidentiary support. Federal Rules—give notice of nature of claim or defense a. i. it has discretion to impose sanctions on party or attorney. and belief. Answer to third-party complaint g. 12(c)= judgment on pleadings (56)=SJ D. help court throw out bogus claims early B. or if specifically so stated. Motion for sanctions a. to best of person’s knowledge. Demand for relief (if Complaint) A1. Jurisdiction 2.D. if ordered by court h. Every pleading and written motion and other paper filed with court must be signed. Legal claims 3. At common law—narrow issues for litigation 3. narrow issues for litigation 4. Signature certifies that. FRCP 11: Representations to Court and Sanctions a. b. If court finds any above representations are untrue. Answer to complaint c. state facts 3. Party may not file motion for sanctions without first serving motion on opposing party 17
. will likely have evidentiary support after reasonable opportunity for further investigation or discovery iv. Reply to answer. if specifically so stated. A paper containing allegations (factual assertions) supporting 1. Legal contentions warranted by existing law.410: *. ease of processing claims (notes) 1. give notice 2. requrest for a court order 12(b) = MTD. Historical purposes p. Complaint b. or non-frivolous arg for changing it iii. Iqbal C. Help court throw out bogus claims (always) 2. See general outline for state variations. Answer to counterclaim d. Third-party complaint f. Denials of factual contentions are warranted on the evidence. are reasonable c. FRCP 7(b): Motions i. Questions after Twombly. FRCP 7(a): Pleadings Allowed a. Two values in pleading consantly at war : Substantive justice v. WHY pleadings? 1. formed after a reasonable inquiry under the circumstances: 11(b) i. rise of 1404 transfer (1948)
A. “Fact” or “code” pleading—state facts to weed out insufficient claims 4.
for fair notice to defendant/ res judicata. 1. huge companies. d. Court may still impose sanctions sua sponte. lots of employers. i. could just be a 18
. Opposing party has 21 days to withdraw or correct offending document ii. expensive and growing cost of discovery generous pleading would allow cases to be brought for anything i. ii. hurts Plaintiffs who lack resources for pre-filing investigation c.b. 8(a)(2): “Short and plain statement” of the legal claim.” iii. “Short and plain statement” of grounds for court’s jurisdiction. To show discrimination from boss basically have to argue evid. a formulaic recitation of the elements won’t do.i. Must “nudge” his complaint across the line from “conceivable to plausible” 4. i. Defendant is in almost exclusive control of these kinds of facts before discovery (protects corporations and the government. e. ii. b. See notes for contrast with Conley 1.c): a. A pleading that states a claim for relief must contain 3 things (a. Subtract everything that is conclusory. discovery can be really hard with perfectly specific allegations and have no efficiency issues. Essentially remove part a. 1957 Black RR workers complaint against the Union survives a motion to dismiss for failure to state a clam because: a complaint should not be dismissed…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. complaint should be dismissed. Form 11 Requirement a.) b. Critiques of Iqbal/Twombly a. f. FRCP 8(a)—The Complaint 1. 2. iii. Infringing on facts usually tried by Jury. lawful account of D’s conduct? If so. c. Key question: are well-pleaded facts equally consistent with an alternative. Conley v. Draw all plausible (not just conceivable) inferences from facts. still needed facts for “fair notice purposes. must show more than mere possibility of illegal conduct. Plaintiff hasn’t given us any clue where to look. (legal conclusions) b. aa. Twombly-Iqbal test for sufficiency of pleading—pleading must contain “sufficient factual matter” to state a plausible claim. All necessary elements for claim to succeed must be present in b or c. time and date of accident. allegations do not plausible support P’s legal conclusions.” E. a. etc. facts iv. Treat remaining well-pleaded (not conclusory) facts as true. Discovery costs can’t be the only reason. Defenses of Iqbal/Twombly a. unpredictability as judges are left to decide based on their own common sense whether or not this is plausible. Nature of sanction limited to what “suffices to deter repetition of conduct or comparable conduct by others. Gibson.
9(b) Must plead fraud or mistakewith particularity. General damages are foreseeable for D. defects ignored if not party prejudiced.wild goose chase for nothing. 8(d) i. not courts. Doing Nothing. A party may set out alternative statements of a claim or defense. Leatherman: 5th circuit requires “heightened pleading” for civil rights claims against municipalities—“detailed facts. b. fair notice of exactly what Plaintiff is talkinga bout b. suspect plaintiffs i. ii. FRCP 9: Pleading Special Matters i. and concisely. protecting reputation c. 2. No technical forms. Versus pleaindg yourself out of court. risk that they won’t collect. So too with “special damages” a. knowledge and other conditions of the mind may be pleaded generally. FRCP 55: Default and Default Judgment WHY?: Don’t know. D has three options: do nothing. A pleading may state inconsistent claims or defenses. facts that show you cannot leagally recover (ex: how long you’ve known of claim for SOL).). iv. maybe long history of dealing b. But malice. Parties must plead simply. Mistake: Good Ship Peerless: conflation of two ships. i. avoided/skirted in Iqbal/Twombly a. See general outline for Twombly / Iqbal
I. WHY “heightened” pleading in some cases (p. etc. A statement of relief sought d. change the Rules. MTD and/or answer: 1. Pleadings must be construed as to do justice. judgment proof. Responding to the Complaint A. a. directly. Use general terms and omit evidence. not special ones i. Fraud: many elements (reliance. intent.438)? a. When served with complaint. unless heightened pleading required. protecting the public’s money d. iii.” Rulemakers. return to traiditional view of pleading of Defendant notice of “logically coherent theory of liability” c. Fairyland Amusement: Defamation claim dismissed for failure to plead loss of patronage iii. v. no PJ (risky) 19
. 3. notice ii.
8(b)(6)means that they have admitted all factual allegations in the complaint 2. 55(a) Party against whom relief is sought fails to plead or otherwise defend within 21 days of service. (b)(4) insufficiency of process a. Lacey: Process for entry of default. Virgin Records v. If motion is denied. clerk must enter default. meritorious defenses. Even if all facts are true. must be served with notice of application at least seven days before hearing. Means of service were defective under 4(e) or (h) 6. Conduct accounting ii. Just an entry on the docket. viewed in light most favorable to P. Plaintiff reliance. because D requests minimum allowable damages under law. (also serve the Defendant). Hard to set aside default judgment— move under FRCP 60(b) a. 21-day clock stops. Make any investigation 3. FRCP 12—Motion to Dismiss A. Establish truth of any allegation iv. either given or FRCP 15 motion. 1. but joinder is not feasible C. party applies to court. D has 14 days to serve responsive pleading. and failure is shown by affidavit. contents of process / notice defective under Rule 4 5. 12(b)(1) lack of subject-matter jurisdiction 2. was default willfull. a. Three ways i. 12(b)(5) insufficiency of service of process a. Determine amount of damages iii. Failure to plead enough facts to meet Twombly-Iqbal ii. default judgment. 7. 2. Plaintiffs will usually have a chance to amend. b. MTD. in deciding court is limited to the four corners of the complaint. Pleads facts disproving element of claim b. PJ? 4. 12(b)(2) lack of personal jurisdiction 3. Court may conduct hearing to: i. If 12(b) defense asserted by motion before answer. not a final judgment until later. 2. Can be set aside for “good cause” 55(c) B. Default Judgments: If complaint. Establishes an affirmative defense (SOL) b. FRCP 12(g) Required Joining of Motions (The Omnibus Motion Rule) 20
. Rule 12(b) grounds for dismissal 1. clerk must enter judgment for that amount. If request for sum certain.A. If not for sum certain. Party required for just adjudication under Rule 19 standard. states a claim: 1. No need for hearing. no law permitting recovery iii. 1. If party in default has appeared. 3. 12(b)(3) improper venue 4. P pleads herself out of court a. Rule 12(b)(7) Failure to join a party under Rule 19 a. c. 12(b)(6) failure to state a claim upon which relief can be granted a. B.
Waived personal jurisdiction by failing to include in pre-answer motion. A party waives a 12(b)(2)-(5) objection by not asserting it in either the preanswer motion. But if new defense becomes available after amendment (not just more clear). Want to get rid of dumb trials 4. Concept: Court strikes affirmative defenses not adequately pled 21
. 6. other motions are foolishness. 12(f). is never waived 3. 12(b)(6)-(7). failure to state a claim and join required party must be made in pre-answer motion. because they typically just delay a lawsuit rather than end it. So. Hunter v. or court may strike pleading ii. if the first responsive pleading. within 21 days of service with pleading ii. G. immaterial. If granted. Rule 12(h) Waiving and Presenting Defenses: Waiver trap 1. 12(f) motion (to strike insufficient defense or redundant. Ex: Plaintiff amended claims D. b. F. a. E. 12(b)(1). other party has 14 days to obey order. if not. 7. If response not allowed. protect 3rd parties that want to be joined ab. If granted. The information is irrelevant to the legal claim and 2.(6)
1. i. in answer. these kinds of defenses ought to be decided up front 2. Standard for 12(f). only done if 1. v. if there is none. only waived if not brought up before end of trial. Court may also act on its own iii. only one pre-answer motion permitted. Extremely disfavored to use against Plaintiff. a. 12(e). motion for a more definite statement (pleading is so vague party can’t respond) must be raised in pre-answer motion. Nextran: Nextran moves under 12(b)(6). Only one 12(b) granted. Matos v. Serv-Tech: Hunter sues. tries to move under 12(b)(2). Party making a Rule 12 motion cannot make another one that raises a defense or objection that was available but omitted at the time of the first motion. 12(d): On 12(b)(6) or 12(c) motion. or. after amendment. Offshore moves under 12(b)(5). at trial. Discovery can be helpful ac. i. Cannot “reserve right” to make later 12(b) objections. aa. by 12(c) motion. lack of subject-matter jurisdiction. if not. defense can be asserted. Motion for judgment on the pleadings: 12(b)(6) motion made after pleadings are closed. motion treated as Rule 56 motion for summary judgment. Reis Robotics v. if not. 12(e). Significantly prejudices Defendant. if matters outside pleadings are introduced and not excluded by the court. or scandalous matter) must be made before responding to pleading i. b. “For insufficiency” is P’s 12(b)(6) iv. second pre-answer motion asserting 12(b) defense might be permitted (if defense was unavailable for vagueness) 5.
448 ii. denied. 8(b)(4) Partial denials—D must distinguish between subparts of each allegation. c. D is deemed to have admitted entire complaint. Answer is allowed for a claim of any kind. If responsive pleading not required. b.) a. more policy rationale on p. we don’t want Plaintiff not to prepare evidence.” (Probably allowed by amendment unless prejudicial to P.under 8(a) Iqbal /Twombly (split on this – p. dismisses counterclaim for fraud not pled with particularity. then general denial is ineffective. even phrases within sentences. Answering. etc. and specify which parts are admitted. What you can do in an answer i. 2-5 if not waived) ii. 8(c) Affirmative defenses (list not exclusive: damages caps) a. Admit—P need not prove that which D admits ii. If you fail to deny an allegation. Defenses admitting substance of allegation. b. FRCP 8(b)—The Answer a1. assert unwaived defenses (1. Has effect of a denial b. but alleging some additional reason it should not have its “ordinary legal effect”—a reason P should not recover anyway i. etc. 3. Rare to be able to do this—P almost never alleges all lies b. Deny—P must prove what D denies iii. strikes insufficient / immaterial matter. “Lacks knowledge or information sufficient to form a belief” a. raise affirmative defenses iv. Additional material D must include in answer i. 496 ). US: Affirmative defenses must be raised in response to a pleading. “to the extent that…” d. admit or deny allegations iii. assert counterclaims or crossclams a. Ingraham v. 13(g) Compulsory counterclaims a. Rule seems not to require normal 8(a) pleading standard a. otherwise waived ii.7. can’t be vauge with language. Claims D has against P that arise out of the “same transaction or occurrence” as P’s claim 22
. Court enters judgment for P. Must make “reasonable inquiry under the circumstances”—can’t say you don’t know something you can learn easily—Rule 11 iv. D must not “lie behind a log. 8(b)1(B) Must “fairly respond to substance of each allegation” i. Four possible responses to allegations in complaint (admit or deny) i.6. ii. Must be pled in answer or amended answer. General denial—deny every single allegation in complaint a. If court determines D did not intend in good faith to deny every single allegation. requires 8(b)(1)(A) short and plain standard iii. it is admitted ii. Failure to respond i.. allegation considered denied a.
won’t be allowed.e. Crossclaims against other D’s e. Beeck v. 23
. court considers above factors.” Court considers: i. Don’t count day of service b. 15a1B D who files an answer with a counterclaim (responsive pleading required) may amend once within 21 days of P serving an answer (or within 21 days of P’s Rule 12 motion) 5. Amending Pleadings I. whichever is earlier 3. 12(e). repeated failure to cure futility (waste of time. Party served with counterclaim or crossclaim has 21 days to respond iii. II. Any unwaived 12(b) defenses. Amendment as of right is allowed only once. Prejudice from amendment in general a. 12(f) motion. Discovery of new facts? New legal theory? Deliberate delay? ii. Claims D has against P that don’t arise out of same &etc. Whether amendment is futile a. rarely deny: undue burden bad faith. or. 13(b) Permissive counterclaims a. nonmovant if granted iv. b. 15(a)(1)(A) P may amend complaint once within 21 days of serving it. New legal theories often allowed as well. Unless service waived under 4(d)—60 in US. May get other party’s consent 2. Rules allow for more liberal amendment to pleadings before trial A. b. B. 15(a)(2) Amendment more than once. prejudice. D may include i. Reasons for amendment a. Answer must be filed within 21 days of service with complaint a. or outside period allowed: 1. Court should grant leave to amend “freely. 15a1B Within 21 days of D serving an answer or filing 12(b). c. Party ordered to reply to an answer—21 days after being served with answer. Period runs through weekends and legal holidays c. FRCP 15(a)(1). 15a1A D who files an answer without a counterclaim may amend once within 21 days of serving it 4. Timing i. 90 outside US ii. Amendment (as of right) 1. may amend by leave of court a. Amending party’s diligence iii. Aquaslide: D allowed to amend when it found new facts just before trial that it wasn’t their slide. Can’t survive a motion to dismiss). c. one bite at apple: amended pleading does not start a new 21day period. when justice so requires. 15(a)(1) For all parties. If wouldn’t survive MTD. Party’s history of amendments vi. if won’t relate back v. To movant if denied. 2. based on above factors. Or.
or occurrence set out in original pleading. D has preserved evidence related to conduct. Sustain objection b/c there is bad faith. FRCP 15(b) Amendments During Trial 1. Same transaction or occurrence ii. 2. amendment relates back. i. original complaint alleged negligence in amniocentesis. 2. An amended pleading is a new pleading. Grant a continuance for them to go research this. 1. So. FRCP 15(c). If MTD granted before amendment occurs. ii. i. i. original (Form 11 negligently drove car against me) in trial say he intentionally drove car against me. b. Moore v. F. If response required. releasing record) c. relation back is intertwined because no relation back = futile. not allowed to amend. P wants to add claim that MD didn’t get her informed consent before sterilization procedure because he withheld info that fetus was damaged during amniocentesis. Original complaint provided adequate notice. Amendment (negligence during surgery) would not relate back because it arose out of different transaction than original claim (no informed consent before surger) . Azarbal: Amendment does relate back. Baker: Moore seeks leave to amend. if state law allows it. claim would have been against it.C. f. Knew or should have known that. 3. whichever is later D.
Joinder of Claims and Parties
. Party had notice of claim within 120 days of filing and iii. a. Enters final judgment on dismissal only if no amendment before date certain E. Purpose is notice: if same transaction. but for mistake. For new claims against existing party. must be made within time remaining to respond to original pleading. leave is not granted. If SOL runs between time the first pleading was filed and the amended pleading is filed. e. g. example. If you don’t object and Plaintiff adds compalints in trial you’ve impliedly consented. if amendment arises out of conduct. For state law claims. For new claims against new parties. so same transaction. or 14 days after service of amended pleading. because amendment would be barred by SOL and therefore futile. receives complaint styled toward old name. transaction. Still have to satisfy 15(a) reqs. sometimes. Hospital changes name. court often grants with “leave to amend” 1. “but for” relationship not enough (false imprisonment. 15(b)(2) Waiver of amended pleadings a. ALWAYS object to any evidence that is irrelevant to the original claim. Relation Back 1. harder questions with Jane Doe lawsuits d. b. Threshold issue is always leave to amend. 15(c) allows for relation back so pleading satisfies SOL if: a. permit amendment if when doing so aids in presenting merits and no prejudice (likely to have come across that evdience already). 15(b)(1) court could: 1.
III. They assert a right to relief “arising out of a common transaction or occurrence or series of transactions or occurrences”. A. Mosley: joinder allowed where 20 Ps from different divisions sued GM for discrimination policy. subcontractor. 17(d): Government official – for $ (individual) for injunction (official name) 1. Individuals – law of domicile a. B. tester over pillar that failed: all claims arise from construction of pillars. Capacity to Sue (SR p. FRCP 20: Permissive Joinder of Parties Note: Does NOT Confer PJ or SMJ – always check!! A. Hands Dye: were the Ds negligent in manufacturing. ii. 20(b) Defendants may be joined when 1. and 2. 17(b): Capacity to sue or be sued individual. or series of the same. iii. 93 in cases of death. occurrence.Efficiency. Efficiency. see SR p. FRCP 17: Plaintiff and Defendant. Historical issues with slavery and women/coverture. joinder proper. 2. ii. exception for partnerships – check notes C. Note: claim preclusion often bars bringing a related claim later. Demobski v. The claim asserted against them arises from the same transaction. FRCP 8. If joinder would lead to jury confusion or prejudice. FRCP 25: Substitution A. b. CSX Transportation: 4 Ps who were run over by the train at different times could not join. get all taken out at once 2. the Rules are liberal about joinder. B. If you sue the official – you get automatic substitution under FRCP 25 IV. 17(a): Real party of interest. “Common transaction” i. There is any question of law or fact common to all plaintiffs. HOW? 1. Settlement C. Not required to sue all D’s together—limitations on jurisdiction. 1. etc. D. FRCP 18: Joinder of Claims A. and 2. Generally. b. “Common question of law or fact” almost always satisfied if transaction is i. with exceptions B. a. efficiency. 84) A. May sue alternative D’s in same action 25
. corporation. Corporations – law of state incorporated a.I. efficiency B. A party may join as many claims as it has against an opposing party (even unrelated). V. etc. court may sever claims for separate trials—FRCP 42. WHY? Policy rationale 1. Common question of law or fact common to all D’s i. not same occurrence. etc. insurer. a. Complete resolution of all disputes between parties while they’re in court II. 18(b) Contingent/dependent claims can be joined too. 20(a) Plaintiffs may join in an action if: 1. incompetency. Hands Dye: 2 Ps sue contractor. Put them as separate claims for relief in complaint.
1367 covers supplemental jurisdiction on counterclaim and crossclaim
IX. new party is third-party defendant (need PJ) 2. Service: Within U. C. Same transactin/occurrence as original issue ii. 13(b) Permissive counterclaim a. Authorizes court to order separate trials for convenience. A claim against a coparty (P1 v. Not waived if not asserted. FRCP 13: Counterclaims and crossclaims A. at the time of its service it exists 2. D2) a. Not a ground for dismissing action. other parties can be joined to it under FRCP 19 and 20. Joinder I) that is the subject matter of the opposing party’s claim must be stated in responsive pleading.S. Heritage Mutual Ins. 2. Doesn’t require adding a party without jurisdiciton iii. Likely separated for trial B. A counterclaim that arises out of the transaction or occurrence (test in general outline Joinder of claims and Parties. must be asserted against existing party first before a new party is added to it. 1. Co: P can join four D’s on fraud claim. P2 or D1 v. So. May include a claim that party is liable to pleading party for claim against the pleading party. Cannot otherwise be brought later. to avoid prejudice. Crossclaim are always permissive. Counterclaim: a claim against a party that has already brought a claim against you 1. never compulsory.3. Can separate any claims or issues. 13(g) Crossclaim 1. sever claims (prejudice ex Hohlbein). A crossclaim must arise out of the same transaction or occurrence as original claim. court may on just terms add or drop party. Nonjoiner A. Common question: whether company had policy of fraud. FRCP 21. Third-party Joinder: Impleader A. TEST i. may serve summons and complaint on nonparty which may be liable for all or part of P’s claim against D. 28 U.S. Misjoinder. A. A pleading may state a counterclaim against an opposing party that doesn’t arise from the same transaction or occurrence as the original claim. 1. VIII. Hohlbein v. VI. 13(a) Compulsory counterclaim a. a. Common transaction: “continuing pattern or practice” of treatment. 18(a) for D’s i. b. 1. Can’t bring in a new party by way of crossclaim.C. or to expedite / economize. judicial district not more than 100 miles from where summons 26
. FRCP 14 After D serves answer. FRCP 42. VII. b. must be asserted within 21 days (with another 21 to amend) c. On motion or on its own. 13(h) Once a counterclaim or crossclaim is filed. D becomes third-party plaintiff.
Will it delay trial? d. “I didn’t injure you. Makes original P and third-party D opposing parties. Must assert any Rule 12 defenses. claims 2. X did” is not a basis for impleader 4. While the plaintiff is generally “master of her complaint. like normal 3. Is motion timely? State of litigation? b. Is the person a required party who must be joined if feasible? 27
. If a counterclaim or crossclaim is filed against the original P. 14(a)(2)(D) May assert against P any claim arising from same transaction or occurrence that is subject matter of P’s original claim i. Cannot implead to collect for your own injuries a. Indemnification a. After 14 days. (Plaintiff can also implead 3rd Party). like normal 4. 1. May assert 13(b) permissive counterclaims and 13(g) crossclaims. B. May assert against original P any defense to P’s claim against impleading Defendant i. Makes them opposing parties. Has to be connected to the Plaintiff. May assert against third-party D any claim arising out of same transaction or occurrence that is subject matter of original claim a. Timing and Leave of Court 1. 2. D. Third-party D must / may then assert all relevant defenses. like normal 2. Third-party defendant Procedures 1. Done by amending original complaint b. Contribution a. Usually brought up by a 12(b)(7) motion to dismiss for failure to join req party. “Defending the defendant”—that claim is basis for 3rd-party D’s liability 14a2C 5. Will it prejudice original plaintiff? E. May file by right within 14 days of answer 2. manufacturer of backhoe. Two ways of passing on liability: 1. Must assert 13(a) compulsory counterclaims. May serve summons on fourth-party defendant who may be liable to it 14(a)(5) F. Often based on contract. Erkins v. allowed by NJ law to implead contractors in contribution as joint tortfeasors for negligence in not doing safety talks. Original Plaintiff 1.issued. Must be allowed by jurisdiction. Cannot implead a party directly liable to plaintiff only a. Case Power: Case. Rule 19: Required Joinder of Parties A. only by leave of court. triggering Rule 13 c. Will impleader unnecessarily complicate litigation? c. like insurance—new party has agree to reimburse D in action of this type 3. (Service: same as impleader). Step One. Court considers: a.” Rule 19 requires joinder of parties if it would be manifestly unfair to litigate the suit in their absence. Impleading a new party that contributed to P’s injury. triggering Rule 13 requirements for crossclaims 6. she can implead third party if Rules would allow D to do so. X. C.
or i. ii. joinder is not feasible because they assert sovereign immunity. Torrington Co. XI. Step Three. ii. A party is “required” when. Leave an existing party subject to substantial risk of incurring double. d. Whether P would have adequate remedy if case dismissed for nonjoinder. in that person’s absence: i. is joinder feasible? a. 5. v. Extent to which prejudice could be lessened or avoided by i. Whether judgment rendered in that person’s absence would be adequate. Andean v. i. Two people sold lot to Plaintiff fraudently. or otherwise inconsistent obligations. Some other exotic reason (sovereign immunity for indian tribe) 3. The court cannot grant complete relief among existing parties. Merrill Lynch. suit should not proceed anyway because remedy would not be adequate (not settled in full). Extent to which judgment without joinder might prejudice that person or existing parties. multiple. or aa. Step Two. Protective provisions in judgment. need both to get back $. other owner of stock may later claim 100% interest in stock from bank – double obligations. FRCP 24: Intervention 28
. impede or impair the absent party’s ability to protect his interest. no way to reduce prejudice. Shaping the relief. 2. and Plaintiff can just file in state court. Make them a party and continue the case b. Pimental: Republic and Commission are required parties because their absence could expose Merrill Lynch to multiple obligations. Landfill case. can the court “in equity and good conscience” proceed with the action in the party’s absence? 19(b) Court considers… a. If feasible: i. suit should be dismissed because prejudice can’t be lessened. (p. can move to dismiss under 12(b)(7) if a party files another action and Republic and Commission against assert sovereign immunity. If the person is required. Jefferson National bank. joinder is not feasible because it would destroy diversity. Could make venue improper (often predicated on all D’s living in one state) iv. Could destroy complete diversity (SMJ) iii.a. Not feasible if (continue to step 3) i. Republic of the Philippines v. and P. No PJ ii. Practically. and an adjudication in their absence may a. Haas v. The party claims an interest related to the subject matter of the action. If joinder is not feasible. Yost: New company INA is a required party because its absence could expose Yost to conflicting contractual obligations and INA cannot guard against its interest in new employee . iii. 4. Other measures c. b. Secretary of the US Army: husband protecting his pension $ from plaintiff ex-wife suing army b. EPA necessary or else landfill may have inconsistent obligations/regulations placed on it.644) ii.
Prejudice to original party c. b. court. Is given unconditional right to intervene by federal statute. Court can issue process and enter order in any state or U. When party knew of action / interest iv. (minimal diversity) c.C. and b. XXII. May be brought in judicial district where one or more claimants resides. Court considers: i. court must allow party to intervene if party i. 24(a) Intervention of Right a. Nationwide personal jurisdiction. Non-party has claim or defense that shares common question of law or fact with primary action. P deposits money with court or gives bond of compliance. to join in. can block a settlement.C. Claims interested related to property or transaction that is subject of action.” which has stake in the proceedings. Stage of lawsuit ii. FRCP 22: Interpleader A. Complexity of action and complexity of claim or defense ii. or ii. Allowed even if claims not of common origin b. 2361 a.A. Ford.S. Used where P has some property that would expose P to multiple liability from adverse claims. Bisanz Brothers: Ford moves to intervene when property owners sue RR to close storage tracks. 1397: Venue i. as a party. court may permit intervention if i. 28 U. Just need 29
. Federal statute allows a conditional right to intervene. Two or more adverse claimants are diverse. Purpose of intervention iii. 1335: Subject-matter Jurisdiction i. Delay / prejudice likely to result c. 28 U. 2361: Personal jurisdiction (and no later action on property) i. Decides who gets property. d. allows “stranger to a suit.C. Length of time action has been pending iii. 2. Statutory Interpleader: 1335. b. Party is in possession of money or property worth $500 or more. B. b. Ford would not be able to operate auto plant.S. On timely motion. 28 U. Is the motion timely? Balance: i. Disposing of the matter may impair or impede its ability to protect its interest. 1397.S. even in absence of contacts within that state.S. c. 24(b) Permissive intervention a. and a. Interest is not adequately represented by existing parties. Very broad. “Stakeholder” can file action in interpleader to resolve liability where there are two or more adverse claimants. Could intervene in suit for products liability if injured by same (broader than standard under 20(a) joining parties). (often public interest/ industry ) 1. District courts have original jurisdiction in interpleader actions when a. If non-party can’t intervene by right. Allows non-party with interest in an action to assert that interest. or ii.
Normal 1391 venue requirements D. otherwise we waste judicial resources with two cases that try the same material facts. A. Prayer for Relief: pay stake into court and bow out d. 1. Do state issues really predominate? a. b. Gibbs v. Complete diversity required (claimants vs. OLD Gibbs Rule: a. etc. State jurisdiction. vast majority of evidence relvant to only the state law claims? 30
. d. A federal court has pendent jurisdiction to hear a state-law claim that arises from the same nucleus of operative fact as the federal claim to which it is joined. By Defendant: D may seek interpleader through crossclaim or counterclaim. DPC). Liberal joinder creates subject-matter jurisdiction problems. FRCP 22 a. Persons with claims that may expose P to multiple liability may be joined as D’s and required to interplead. venue. easier to get SMJ ii. ‘plaintiff’/stakeholder) e. easier to get PJ iii. United Mine Workers: Gibbs claims had Supplemental Jurisdiction because they both arose out of how the union reacted to the opening of a mine. Normal contacts analysis for PJ d. i. Gibbs v. WHY do we have Supp Jurisdiction? 1. Is the federal claim dismissed early? a. focuses on facts. P may interplead defendants if their claims might expose it to multiple claims. Held: Federal courts have “pendant jurisdiction” over state claims that arise from the same nucleus of operative fact as the federal claims to which joined.minimum contacts in the United States at large. and should decline if judicial economy. Claim: Exposure to multiple liability c. or motivation. Diversity compares citizenship of stakeholder to that of all defendants i. “Pie-slicing interpleader” a. and fairness to litigants are not served. Why Statutory over Rule? i. facts are related in time. not legal theories a. By Plaintiff. Only time you would use rule interpleader is if all claimants from same state C. (5th Amd. Section 2 explicitly authorizes courts to hear related state claims in federal cases. Nothing in Article III. Consider: i. Supplemental Jurisdiction A1. convenience. United Mine Workers: Gibbs sues under federal law and joins state claim. The court does not have to exercise jurisdiction. Rule Interpleader.. 2361 and Rule authorize injunctions barring D’s from later action V. i. c. origin. 2. whether they form a convenient trial unit ii. Joinder is proper even if claims lack common origin b. Unless there has or will be lengthy pretrial work ii. space. Normal 1332 amount-in-controversy requirement f. or we end up with cases in state court and we don’t like Fed Law in state court. why proper b. E: Complaint a.
III. protects P’s in negative-value suits B. 23(a) Prerequisites One or more members of a class may sue as representatives only if 1. SOL tolled on state claims when pending. the court doesn’t have supplemental jurisdiction over i. (Kroger v.” 2. Owen would fail here) or ii. In exceptional circumstances. not 1332 diversity requirement. fact that they aren’t Defendants. So Congress needs to make a statute. A class action allows many similarly-situated P’s to adjudicate claims in one action. description suit is styled as class action 2. 23(c)(1) Court determines to certify class at “some early practicable time. Numerosity: class is so numerous Rule 20 joinder is impracticable 31
. A. P files complaint. Possibility of jury confusion—subtle differences in claims? c. Promotes efficiency. Justified by Necessary and Proper Clause. Pennoyer and Due Process a. it also has supplemental jurisdiction over all claims so related to the main Federal claim that they form part of the “same case or controversy” under Article III. 1367 1. 1367(c) Discretion Court can decline jurisdiction over supplemental claims when i. ii. 23(a). P files motion for certification order.C. not NE. sues OPPD. Class meets general prerequisites of 23(a) b. (same as Gibbs standard) including “claims that involve the jonder or intervention of additional parties. 3. Gibbs interpreted Art. Specific requirements of 23(b) 4. other compelling reasons to decline. Court has dismissed all federal claims. Complaint identifies class in some fashion 3. Is state law unsettled/complex? Should a state court decide it? iv. Claim raises novel or complex issue of state law. Claims by persons proposed to be joined as plaintiffs under Rule 24 b. Binding judgment in personam on a nonparty. Has burden to show / jump through 2 hoops: a. which impleads Owen.
I. 20. VENUE C. 28 U. State claim predominates over federal claim. iv. Rationale: Article III: “same case or controversy” 2. noting in caption.S. FRCP 23: Initiating 1. and for thirty days after dismissal. Case is now IA P v. IA. 1367(b) Exceptions a.” with enough discovery to determine whether certification is proper D. IA D in federal court on a state claim in negligence. 1367 (d) IF so. When exercising jurisdiction would be inconsistent with 1332 diversity. In diversity cases.iii. Held: 1332 requires complete diversity. Owen turns out to be from IA. 19. some consider this list to be exclusive (while it was not in Gibbs test) 4. or 24. Claims by the plaintiff against persons made parties under Rule 14. OPPD MTD. NOTE: MAKE SURE STILL CHECK FOR SMJ. PJ. iii. a. Kroger: Kroger. drops out. 1367(a) In an action where District Court has original jurisdiction. NE. and Phillips Petroleum (PJ) cover it 2. Problem 1. B.
Lee sues. G. b/c seeking different relief 4. not sure reps are part of class. Class action may be maintained if 23(a) satisfied and a. is Burke bound by 95% finding in first judgment? No. 2. Party opposing the class has acted or refused to act 32
. Commonality: questions of law or fact common to entire class a. 2. Class definition must be so crafted to ensure membership can be ascertained objectively. Adjudications that would substantially impair or impede ability of nonparties of class to protect their interests. etc. In Re Teflon failed this because they dropped personal injury damage from claim. F. or ii. 1200 people want $3 million each. 23©(1)(B): requires the court in certification order to appoint class counsel under 23(g). because otherwise differing applicable tort laws will undercut commonality 3. court adopted no procedures to protect nonparties—didn’t designate class or purport to bind in decree. who to give $ to). Hansberry v. representatives not adequate because bring no claim for personal injury. 23(b)(2): The Civil Rights Class. Class representatives must in fact be members of class. c. company only worth $300 million 2. Rule 23(b) specific requirements: must be satisfied for class to be certified as certain type. 23(a) Implicit requirements 1. In re Teflon (application on p. Too much individualized inquiry = not typical. 1.a. Inconsistent adjudications that would establish incompatible standards for party opposing class. Usually 20-40 b. a. too much individualized inquiry for typicality (when items were bought. representatives owe the class both a duty of loyalty and a duty of vigorous representation ii. If reps seek remedy not available to all class members. Ensures reps “feel the pain” of whole class. Adequate representation—must seek all relief available to all members i. Prosecuting separate actions would create the risk of i. Adequacy: Reps will fairly and adequately represent interests of the class a. Geography can play a role in practicality/efficiency too. claims not typical. stakes are different. AGAIN being from different states can undercut this. b. E. if class from many states. Not LMF. K stipulated 95% of homeowners agreed to covenant. Burke did not have same interest as any party in first suit. Burke tries to sell to Hansberry. Bank may be sued for many injunctions requiring different disclosures b. Lee: Burke’s wife sued Klieman to stop him from leasing to black tenant. 23(b)(1): The Prejudice Class. certify statewide subclasses i. G. interest was surely not adequately represented. Problem in Teflon was everyone had different advertisements promoting it d.). actually do some discvoery to see if this is true. b.694): Class definition not objective. Typicality: Claims and defenses of representatives are typical of claims and defenses of class as a whole a. a. (Who is bound. Adequate counsel i. Just one will do.
appoint counsel under 23(g) b. Difficulties in managing class action. Value of claim? b. 23(b)(3): The Damages Class. opt out option 4. individual proof of injury. 23(c) Certification Order: at early practicable time a. 23©(2)(B) requires each Plaintiff to receive notice where practicable. Individual actions a. 23(c) Notice requirements 33
. Same theory of liability? Same defenses? a. either—common q’s don’t predominate (claims can’t all be proven on same evidence).on grounds applying generally to class. what ads… b. a. class action not superior. Consider: i. Class bound by mutual interest more than divided by individual? iii. Notice Requirements i. and that class action is superior to other available methods for fair. Do elements of claim require same proof? ii. Common q’s central to all members’ claims? v. In Re Teflon fails b/c didn’t show how they would prove claims (i) and there were too many individual questions ex: cookware caused harm? Vs what type. Common in discrimination suits—company has refused to promote any blacks b. Define class and claims. “Other available methods”? i. In Re Teflon fails here b/c listed $ relief first. Rule 20 joinder? (geography. Others. iii. If monetary damages sought as well… i. Consider: i. SOL thing make it too hard to manage. Transfer multidistrict litigation to one forum for pretrial (1407) iv. 3. Stage of any litigation already commenced. issues. In re Teflon: Class cannot be certified under 23(b)(2) because injunctive relief is not primary relief sought. Trying a test case? ii. May be amended before final judgment c. defenses. when bought. Not a 23(b)(3) class. 5. 23(f) COA may allow interlocutory appeal 6. Go to gov’t agency. negative-value suit outweighed by difficulty of managing suit as class action. ii. Some courts say injunctive relief must “predominate” ii. numerosity) iii. that $ damages must be “incidental”—necessary part of injunction a. complain d. Court finds that questions of law or fact common to all class members predominate over questions affecting only individual members. c. iv. a. “Superiority” of class action to other available methods. Resolution of common questions would advance litigation? iv. Interest of class members in individually controlling litigation. Desirability of concentrating litigation in one forum. warning label is lame and they’re looking for $. “Predominance” of common questions— 23(a) commonality +. so injunctive or declaratory relief is appropriate for class as a whole. ii. efficient adjudication.
a. (b)(1), (b)(2) i. Court may direct appropriate notice b. (b)(3) i. Court must direct best notice practicable under circumstances 7. 23(d) Conducting action a. Court may issue orders to manage case and direct notice to members regarding steps in proceedings. 8. 23(d) Settlement, voluntary dismissal, compromise a. Court must give approval on any and must direct notice to those bound i. May approve only after a hearing on finding settlement is “fair, reasonable, and adequate.” Considers: a. Strength of P’s case; b. Size of offer; c. Likely length of litigation; d. Opposition by objectors; e. State of proceedings ii. Parties seeking approval must file statement disclosing all agreements made. iii. 23(b)(3): court may refuse to approve unless members given opt-out notice iv. Any class member may object a. Objection may only be withdrawn with court’s approval b. Can FRCP 24 Intervene 9. 23(g) Court must appoint class counsel—consider experiences, resources, knowledge 10. 23(h) Court may award reasonable attorney’s fees. 11. Synfuel Technologies: Class members objected to proposed settlement: $600,000 for attorney, $10k for rep, vouchers or $30 for members. $75 mil damages alleged. Held that court abused discretion by not considering all factors (which claims were barred? Value of litigation?) in determining whether “fair, reasonable, and adequate.” H. When you are a Plaintiff with greater injuries than others, options 1. 23© opt out 2. 23©(5) make a new sub class 3. 23©(4) sue for declaration on faultiness. H. Class Actions and Subject Matter Jurisdiction / Supplemental Jurisdiction (P.708) 1. Ben-Hur, 1921: Only rep’s citizenship need be different than D’s. a. led to lots of forum shopping. Pick any rep and state you want b. bi-furcation forum shopping, places that did diamages first, easy settlements 2. Exxon, 2005: 1367 allows supp jurisdiction over claims arising from same case or controversy as class rep’s if claim for more than $75k. a. Keeps most class actions in state court i. Friendlier to P’s, possibility for sweetheart deals—forum shopping 3. CAFA—mostly a response to forum shopping (SR P. 383) a. Federal courts have original jurisdiction over all class actions with at least 100 class members where amount-in-controversy (aggregate) exceeds $5 million if i. Any member of P class diverse from any D. (minimal diversity) b. Removal allowed in actions satisfying above even if i. More than a year after action filed; ii. Not all D’s agree to remove; 34
iii. Removing D is a citizen of the forum state (1441(b)) c. Exceptions for actions with high state interest: i. “Home State:” see general outline: minimal diversity doesn’t apply a. 2/3 class and all primary Ds from forum state (SR p.386) ii. “Local Controversy:” see general outline: Court must decline jurisdiction a. 2/3 class, 1 D, principal injuries—forum state iii. Discretionary jurisdiction: see general outline a. 1/3-2/3 class from forum state, all D’s forum state d. Likely impact i. Multistate actions in federal court ii. Fewer multistate class actions a. State-only actions i. Risk of inconsistent judgments, not efficient ii. D’s don’t care: P’s have less bargaining power because claims smaller b. D’s are happy i. More bargaining power in statewide class action ii. No multistate action in state court that defines nationwide liability iii. Federal courts friendlier a. Judges not elected b. Interlocutory appeal on certification
I: Timeline A. Pleadings close 35
B. 26(f) Parties meet and confer to make discovery plan at least 21 days before 16(b) 1. Discuss claims, changes to discovery schedule, e-discovery, etc 2. Discovery plan due to court within 14 days a. May include objections to required disclosures in discovery plan 3. 29—Parties may stipulate to changes in discovery procedure. A stipulation that extends time frame must have court approval if it would delay discovery, hearing, trial. C. 26(a)(1) Required disclosures due 14 days after meet-and-confer: 1. Persons likely to have info disclosing party may use to support its own claims or defenses 2. Documents and tangible things party may use to support its claims or defenses 3. Computation of damages 4. Any insurance agreement under which insurer may be liable to satisfy judgment D. 16(b) Scheduling / discovery order—within 120 days of service or 90 of appearance 1. What types of discovery will be permitted 2. How long discovery will last, etc. E. Core discovery—see below F. Subsequent required, unilateral discoveries include: 1. 26(a)(2) 90 days before trial, identify and reports of experts who will testify 2. 26(a)(3) 30 days before trial, identities of fact witnesses who will testify 3. 26(a)(3) 30 days before trial, documents / exhibits disclosing party may use at trial G. 16(e) Final pre-trial conference: As close to start of trial as is reasonable 1. Judge and at least one attorney for each party a. Plan for submission of evidence b. For length of trial, etc. H. 16(e) Final pre-trial order 1. Sets forth facts to which parties have stipulated, factual and legal contentions, evidence, witnesses to be presented at trial 2. May be modified only to prevent “manifest injustice” J. Trial II. Core Discovery. FRCP 26(b)(1): Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense, and that is reasonably calculated to lead to the discovery of admissible evidence. A. Primary tools 1. Rule 33 Interrogatories—served only on a party 2. Rule 30, 32 Oral depositions—subpoena to compel depo of nonparty 3. Rule 32, 32 Written depositions—subpoena to compel from nonparty 4. Rule 34 Requests for production—subpoena to compel from nonparty 5. Rule 35 Physical or mental examination—party or person in party’s legal custody or control 6. Rule 36 Requests for admission—served only on a party B. Party who receives request should determine whether to comply by undertaking following analysis: 1. Properly requested? Does it comply with all rules, discovery order, any protective orders issued? 2. Is it relevant to the claim or defense of any party? 26(b)(1) 36
Enter default judgment in favor of party seeking discovery iv. or oppress deponent or party” b. Motion to compel 37(a) i. Documents and tangible things prepared in anticipation of litigation by or for another party or its representative (some exceptions) a. embarrass. Preclude noncompliant party from introducing evidence on the matter v. A protective order limits discovery by. Work-product doctrine 26(b)(3) i. Imposing sanctions that are unnecessary. Objection excuses deponent from answer in only 3 circumstances—otherwise. Move for protective order under 26(c) a. or who can access materials produced (say. When testimony would contravene discovery order or protective order iii. When deponent intends to move under 30(d)(4)—ask court to end deposition or limit its scope / manner of taking because it is “being conducted in bad faith or in such manner as unreasonably to annoy. Imposing sanctions / making orders without considering needs of case (26(b)(2)(C). Movant must first try to confer with other side to resolve dispute without court intervention c. d. Fails to attend its own deposition 2. Raising Objections 1. Specific claim? Ad hoc? Primary purpose approach? See general outline 7. Deem matter conclusively established for requesting party vi. or limiting methods that can be used. Upjohn 6. or the amount of discovery that can be taken. Sanctions for failure to obey order to compel 37(b)(2). Communication made in confidence between privileged persons for purpose of obtaining or providing legal assistance for client. Annoying? Embarrassing? Oppressive? Undue burden? 26(c) 9. Or protected? a. For e-info. by deponent continues to testify 30(c)(2) i. When testimony would violate a privilege ii. Dismiss lawsuit or part thereof iii. 37
. Hold non-complying party in contempt ii. Party may skip compel order and move initially for sanctions only if 37(d) i. Object and wait for 37(a) motion to compel a. Attorney-client privilege 26(b)(1) i. for example. Stonewalls discovery by not responding at all and not objecting ii. objection is recorded. directing that discovery not be directed into a particular area. Is it unreasonably cumulative or burdensome? 26(b)(2) 4. Mazda i. given the circumstances—serious sanctions should be reserved for bad-faith discovery misconduct. is it not reasonably accessible because of undue burden or cost? 26(b)(2)(B) C. Mazda: Court abuses its discretion by 1. Is it reasonably calculated to lead to discovery of admissible evidence? 26(b)(1) 5.3. 2. Is it privileged? a. Unreasonably cumulative or duplicative? Too late? Burden outweighs benefit? 26(b)(2)(C) 8.
Holmgren. Ad hoc approach: Protected if done prior to emergence of claim. Otherwise discoverable. 3. expressly make claim 38
. Party may not discover documents and tangible things prepared in anticipation of litigation by or for another party or its representative. If you wish to resist discovery on privilege or protection grounds. G. to help client avoid litigation or strengthen available defenses c. “Anticipation of Litigation” a. Privilege protects communication. H. Privilege waived if communication is in controversy. Mandatory disclosures under 26(a) and responses to interrogatories. Upjohn: privilege exists not just to give legal advice. 5. Party may discover its own previous statement without required showing. Communication made for the purpose of obtaining or providing legal assistance for the client. Communication made between lawyer and person who is or sought to be a client. Work-product protection 26(b)(3) Hickman 1. Attorney-Client Privilege 26(b)(1) 1. Under Upjohn. Movant must first try to confer with adverse party to resolve dispute without court intervention D. not the underlying facts. Duty to Supplement Discovery 26(e) 1. 6. 4. must protect against disclosure of “opinion work product” as opposed to “factual work product” a. Absolute protection unless mental impressions pivotal issue in litigation. and requests for admission must be “supplemented in a timely manner” i. privilege extends to communications between attorney and lower-level employees with whom the attorney communicates to gather facts &etc. Party shows substantial need and cannot get equivalent without substantial hardship. If court orders discovery.non-sharing protective order to protect trade secrets) b. Specific-claim approach: Documents must have been prepared with specific claim and facts in mind b. i. who speaks for the client and is protected by privilege? a. Conclusions c. No duty to update depositions E. Can be prepared by attorney or for attorney (by client. Primary purpose approach: Primary motivation of preparing product was to prepare for litigation a. When client is a corporation. requests for production. Legal theories 5. limited to “control group” of important employees b. Communication was made in confidence outside presence of strangers. Mental impressions b. To comply with regulation—no 4. 2. paralegal) 3. F. 2. b. but so attorneys can obtain information to help form that advice. Ordinary business purpose—no b. Opinions d. Before Upjohn. But may be discoverable if: a.
If answer may be determined by examining business records. presents to court for ruling III. Request must describe with reasonable particularity items to be inspected/produced. Depo being taken before 26(f) meet-and-confer 2. Useful: spontaneous answers to informed questions 2. Must produce documents. nonparty by subpoena. b. Say. must be answered by officer or agent who must furnish all information that is available to the party. Time and place b. Materials requested d. If you want to depose a corporation or other entity: 30(b)(6) 39
. court may undertake cost-benefit analysis and specify conditions for discovery under 26(b)(2)(C) or authorize protective order under 26(c).and describe nature of communication on “privilege log” so other side can assess. 5. May relate to any discoverable material. Rule 30. Method of recording 5. and responding party objects under 26(b)(2)(C) or moves under 26(c). No more than 25. to parties only. responding party may specify records that must be reviewed and give other party reasonable opportunity to examine. make copies. address c. If you accidentally produce privileged or protected info: 26(b)(5) a. To parties by request. Must be answered under oath by party to whom directed within 30 days. Rule 33. Same person being deposed more than once. or permit entry onto land for property possessed or controlled by party. or iii. Make claim b. and would result in i. or b. C. custody. Answered under oath. esp. Ashcroft: When Rule 34 request is unduly burdensome (common. etc B. McPeek v. application of law to fact. Rule 34. Interrogatories 1. and burden of finding answer equal for either party. no law only. sequester. 1. Claimant preserves info. or control. More than 10 being taken. May serve on any party. 4. Tools of Discovery (look in class notes) A. 26(b)(5) I. e-info: a. Other party has thirty days to comply. a. 2. The examination of a live witness under oath outside the presence of the judge 3. Other party must return. Written questions to another PARTY. May take without leave unless parties have not stipulated. or destroy c. a. Interrogatories 0. 6. 3. As kept in usual course of business. 4. Option to produce business records a. Notice to parties must state: a. 3. Requests for Production / Inspection / Entry onto Land 1. or ii. chronological order. Deponent’s name. According to categories in request. If party is an entity. nonparties by subpoena. Other party must produce documents and tangible things in its possession. for e-discovery).
It relates to a matter that could have been cured at the time. etc. or iii. Before deposition begins. Noticing party gives officer a copy of questions and notice. Other parties may submit questions a. Party was present at deposition or had reasonable notice. Objecting to use a. Describe with reasonable particularity matters for examination. officer 31(b) i. ill. b. Objection to error or irregularity at oral deposition is waived if i. Must take place before officer. Ground for objection could have been cured at that time a. Using depositions in court 1. b. 2. or iv. 7. Who goes? a. Entity designates officers to testify about all info known or reasonably available to organization. infirm. Objection to officer’s qualifications is waived if not made i. Cross-questions due 14 days after service with notice and direct questions b. and i. Any objection can be made that would be available if witness were present and testifying 32(b) 4. ii. Basically. Sends it to party. Prepares and certifies the deposition. Lawyers b. or ii. except a. 3. 9. The particular evidence is admissible (not hearsay. Objections. Redirect questions within 7 days of service with cross-questions c. 6. On motion and notice. Take’s deponent’s testimony. motions to terminate or limit in “objections” above. iii. Deponent 10. relevance. If one party uses only part of a deposition. who administers oath. It is used to impeach a witness. or materiality is not waived by failure to object at deposition. As an admission by a party-deponent. For any purpose if witness is dead. or promptly after basis for objection becomes known c. unless i. adverse party can introduce the other parts in fairness. Objection to competence. not subject to subpoena for trial.). Rule 31. Subpeona Duces Tecum – 30b2 (can get nonparties to bring in docs) D. attaching questions and notice 2. and 40
. that exceptional circumstances make its use just. 8.. records. etc. Objection to notice is waived unless promptly served in writing on noticing party b. Depositions by written questions 1. by reformulating question d. Recross-questions within 7 days of service with redirect questions E. All or part of a deposition may be used in court if: a. Limited to one day of 7 hours. Rules more or less parallel written depo.a. Officer (court reporter) c. etc. Waiver of objections 32(d) a. Rule 32.
it federal statute allows. b. Objection to written question is waived if not served on submitting party in writing within time for serving responsive questions (14 days or 7) F. c. It was not timely made during the deposition e. State text of 45(c) and 45(d) (consequences for not complying) d. 45(c) Protecting subpoenaed persons a. The court must.S. For attendance at deposition. For hearing or trial. or iv. custody. The subpoena doesn’t allow reasonable time to comply. etc. b. Usually used when court where issue is pending has no personal jurisdiction over deponent 5. A compel order must protect nonparty from significant expense. 45(b) Service by anyone at least 18 and not a party. Attend and testify. The court may quash or modify a subpoena if it requires i. 8. ii. whichever is earlier. a. Disclosing a trade secret or other confidential info. Subpoena 1.: subpoena may be served at any place: a. But party may be commanded to do so for trial if traveling from within the state where the trial is to be held iii. Command appearance 3. court where action is pending.ii. An objecting party must object within 14 days or time specified for compliance. and the issuing court must impose sanctions on noncompliant parties. Outside that district. State court from which issued. b. quash or modify if i. district where production or inspection will occur 7. or permit inspection of land or property. Serving party can then move to compel on notice to person.. For production or inspection. Every subpoena must: a. c. The subpoenaed person can move to quash or modify a subpoena. Served on nonparties 2. Clerk must issue blank subpoena on request. Rule 45. Within the district of the issuing court. but within 100 miles of the place specified for deposition. Must state method of recording 6. Must contain certain information 4. The subpoena requires the disclosure of privileged or protected material. production. From which court? a. Command person to do the following at a specified time and place: i. court where hearing or trial held b. ii. Party completes it. The subpoena subjects the person to undue burden. e-info in person’s possession. district where deposition taken c. Service within U. 9. Produce docs. Place the court authorizes for good cause. It requires a nonparty to travel more than 100 miles from home or business a. and civil-action number. on timely motion. or control. c. 10. The issuing party must take reasonable steps to avoid undue burden or expense. iii. i. 41
. i. State title of action.
iii. But failure is excused if person was asked to attend or produce at a place outside the court’s district and more than 100 miles from the person’s home or business. b. Genuineness of any described document 2. Court may. If objection to request 37(a) to compel or 26(c) for protective order. Requesting party must move for examination and show good cause H. if serving party shows good cause c. Serving party shows substantial need and can’t otherwise get info without undue hardship. 45(e) Contempt a. Available against parties and persons in parties’ custody or legal control 2. Other party has 30 days to respond or object. 45(d) Responding to a subpoena a. or assert lack of knowledge or information (only if reasonable inquiry made and information known is insufficient to admit or deny)
Dismissal of Actions
. Disclosing an unretained expert’s opinion as an expert. Admitted matters are conclusively established as true for purposes of the present action only. or as requested. May serve on any other party a written request to admit truth of matters relating to a. note. Can admit. Privilege / protection procedures same as above (make claim. If persons fails to obey subpoena without adequate excuse. instead of quashing or modifying.) 12. Requests for Admission 1. order appearance or production under specified conditions if i. subpoenaed person must show not reasonably accessible. Ensures subpoenaed person is reasonably compensated. i. Facts. and ii. Mental and physical examinations 1. deny. Examination is limited to conditions in controversy 3. 11. application of law to fact. otherwise. Must produce documents as kept in usual course of business.ii. 4. A nonparty to incur substantial expense to travel more than 100 miles to attend trial d. considering limitations of 26(b)(2)(C). and b. issuing party must go to court and obtain a court order for contempt. Rule 36. must produce e-info in usable form. etc. matter is taken as admitted. or opinions about either. G. Rule 35. court may order discovery. 3.
the court may order P to pay D’s costs from the first action. etc. P introduces materials outside the pleadings and they are not excluded by the court. except for a. P can do so. Fails to comply with the Rules. 41(a)(2) Except as above. 982 in gray box II. before the other party answers or moves for summary judgment. In re Bath and Kitchen Fixtures: Court grants leave to amend after D’s 12(b)(6) and P notices voluntary dismissal under Rule 41(a). WHY. List on p. A notice (not a motion) of dismissal. (p. Dismissal is without prejudice unless the notice or dismissal states otherwise. because D did not answer or move for summary judgment. 1. Defendant may move to dismiss if the plaintiff 1. Point of no return is a bright line rule. Rule 41(b). 3.I. “Point of no return” A. or 2. If a D answers or moves for summary judgment. on terms the court considers proper. A stipulation of dismissal signed by all the parties who have appeared. 12(b)(3) improper venue c. summary judgment are “point of no return”) a. a. III. The dismissal is with prejudice unless the order states otherwise. Voluntary Dismissal (before trial) A. The order is without prejudice unless it states otherwise. voluntary dismiss? 1. Having to defend another lawsuit not enough C. 12(d) turns motion into Rule 56 motion for summary judgment. plaintiff can only (motion) dismiss by court order. on 12(b)(6) or 12(c) motion. Has D spent time and $ litigating? b. he has probably spent time. If. B.
FRCP 56 Summary Judgment
. SJ can = 12(d) a 12b6 motion with facts/evidence outside the pleadings (data). IV. 41(d) If a plaintiff who previously dismissed brings the action against the same defendant. Because these are unrelated to the merits of the case B. Involuntary Dismissal A.” Two-dismissal rule. a notice of dismissal (but not dismissal by court order or stipulation) “operates as an adjudication on the merits. b. 41(a)(1) A plaintiff can dismiss an action without a court order by filing either 1. $ on case B. 12(b)(1) or 12(b)(2) lack of subject-matter or personal jurisdiction b. Where is the litigation? Are we in discovery? &etc. 2. 46(b) Fails to prosecute. or (answer.) when it finds plain legal prejudice to D: a. The court will dismiss with prejudice or other “terms” (costs. and the point of no return is reached. But. FRCP 41(a). 12(b)(7) failure to join a required party under Rule 19 i. if the plaintiff previously dismissed the same claim. 986 factors) c.
stipulations. 2. but not on damages E. 56(c) Supporting a motion for summary judgment A. Use: depositions.I. Make credibility judgments D. Who decides? The judge decides motion as a matter of law.” 1. Must be made on personal knowledge. etc. Rule 56(a) A. etc. not sufficiency of pleading. If not disputed – apply to the applicable law: a. Summary judgment does. Underlying substantive law decides which facts are material 2. exception for affidavits. on liability. Tests sufficiency of evidentiary basis for claim. Process 1. Light most favorable to nonmovant. Generally A. 1. really narrow exception: 56c4 “must be made on personal knowledge and set out facts that would be admissable in evidence. Weigh the evidence. otherwise not summary i. A dispute is “genuine” if a reasonable jury could return a verdict for nonmovant b. The movant has the burden to show: 1. Has the Moving Party met its burden of proof? (some evidence. Narrow exception for affidavits and declarations: a. and all that remains is to apply the law. Are the material facts disputed within the proper record. The motion is decided on the undisputed facts in movant’s and non-movant’s materials that would be admissible at trial F. or 2. B. nonmovant may show by affidavit or declaration that facts to oppose the motion are unavailable to it. prep of evid) b. There is no genuine dispute as to any material fact a. or as to parts of claims a. but cannot 1. The court may allow time for discovery or deny the motion. C. Partial summary judgment 1. admissions. Nothing inadmissable or “promised” is considered b. Celebrated in Celotrex. Say. 12(b)(6) motions often don’t weed out meritless claims. Under 56(d). What is material for this law? 3. what evidence have sides shown? 4. 2. Use where material facts are not in dispute. Summary judgment is a “trial preview. Court may hold there is a genuine issue only as to certain claims. has the non-movant successfully rebutted with evidence? II. III. Policy Rationale: Page 1013. So court only considers evidence that could be admitted at trial (in some form) a. all inferences for nonmovant c. 44
. 2. 56(b) Party may move for summary judgment at any time until 30 days after close of discovery. If yes. The movant is entitled to judgment as a matter of law. documents. Identify applicable law 2. Notice pleading is vague. B. Party must cite to materials that would be admissible at trial—motion is “trial preview” 1. A party can move for summary judgment on any part of any claim or defense.
C. No unsworn material except admissions (so no pleadings. Moving party has burden of production a. Otherwise. c. Slaven v. Slaven v. Shell: Shell points to affidavits showing that no witness has asserted it was responsible for board on ship. burden of production shifts to nonmovant i. Usually results in partial summary judgment. The burden of persuasion always rests with the same party (usually the plaintiff) B. If nonmovant meets burden of production. So: have to point out the element and that they don’t have evidence. “Absence of Proof” motion for summary judgment. “Lying affiant” standard and “scintilla of evidence” standard not enough. must review for court materials in record and discuss evidence. This shifted burden of production to nonmovant. Duplantis v. Produce real evidence to prove the nonexistence of an essential element i. Statements are sworn. (usually easier than #1) i. a. 2. under penalty of perjury B. If nonmovant fails to meet burden of production. Other party may object that material can’t be presented in a form admissible at trial 1. motion is granted ii. Celotrex: Conclusory assertion is not enough. Related Motions 45
. City: City showed didn’t know of suicide risk. who neither moved under 56(d) nor produced evidence establishing a genuine issue of material fact on which a reasonable jury could find for her. an essential element of P’s claim. movant can obtain summary judgment by showing other party has unearthed no evidence to carry burden on an essential element of the claim. “Disproof of an Element” Motion a. and such knowledge was an essential element of P’s claim. generally) IV. whether justified or not. The burden of production on motion for summary judgment shifts as follows: 1. Shell is entitled to summary judgment. especially for P’s: i. Relationship between burden of persuasion and burden of production A. Shift in burden A. who only produces unsworn letter from expert that doesn’t even address issue of responsibility. If the movant has the burden of proof at trial (usually P): 1. If moving party meets burden. City of Salem: City is entitled to summary judgment because it proffered three affidavits showing officers did not know P’s decedent was a suicide risk. “Absence of Proof” Motion a. motion is denied V. Since burden is on the other party. Since P has failed to show the existence of a genuine issue of material fact that would allow a reasonable jury to find for him. If moving party fails to meet burden.b. VI. If the movant does not have the burden of proof at trial (usually D): 1. So. every D would move for summary judgment in every case and shift burden to P. “Proof of the Elements” Motion: very difficult a. This shifts burden of production to P. motion is denied b. Must set out facts that would be admissible at trial. usually summary judgment as to liability only B. D. Must present undisputed facts supporting each element of claim or defense b. Undisputed facts rarely establish damages a.
56 (SJ) based on undisputed facts in movant’s and nonmovant’s materials that would be admissible at trial. Reasonable jury would not have legally sufficient evidentiary basis to find for party on issue. 50(a) after D’s case based on all evidence presented at trial. and reply. No 50(b) without 50(a) first i. Evidence so 46
. Court may a. If made at close of P’s case. Pennsylvania RR Co. Courts prefer 50(b) to 50(a) 1. If judge grants 50(b). Since P’s testimony gave rise to equally strong inference that collision did not occur. court applies law to facts presented by P. “Evidence is such that without weighing the credibility of the witnesses. NOT credibility of witnesses. Specify law and facts entitling the movant to judgment C. 12(b)(6) based on facts in complaint. Chamberlain: P’s testimony based solely on “eyewitness” who only inferred a collision and could not have seen one. Party has been fully heard on an issue. If judge grants 50(a). losing party appeals. 12(c) based on facts in complaint. Plaintiff may ask for opportunity to re-open case D. but strength of the evidence (ie: circumstantial vs.. perfectly good verdict if it wins D. Idea is that 50(a) “conditionally” submits case to jury and reassess after B. What is considered? i.” A. answer. 50(a) motion may be renewed as a 50(b) motion within 28 days of entry of judgment a. includes evidence outside pleadings. If made at close of D’s case. F. 50(a) motion for DV appropriate when: A. i.A. and 2. 12(d) can convert either into Rule 56 motion. B. judgment notwithstanding the verdict) A. II. D. E. 2. Specify the judgment sought. 50(b) Motion for JNOV (non obstante verdictum. v. court applies law to facts in entire trial record. collision a necessary element of P’s claim. or otherwise considering the weight of the evidence there can be but one conclusion as to the verdict that reasonable persons could have reached. 1. it did not actually impeach D’s direct testimony. Same standard as 50(a): Judgment may be reversed if it lacked a legally sufficient evidentiary basis. Rule 50(a) Motions for Directed Verdict and Rule 50(b) Motions for JNOV I. C. direct evidence – doesn’t directly contradict it. Critical question: Just what is a “legally sufficient evidentiary basis?” 1. Weighing? i. Resolve issue against party and grant JMOL on claim or defense that depends on issue B. 50(a) after P’s case based on all evidence presented in P’s case. Movant has burden to 1. losing party appeals. D presented direct evidence in form of eyewitnesses that collision did not occur. D evidence that is uncontradicted and unimpeached B. Motion may be made at any time before case goes to jury. and court finds: 1.). P evidence ii. new trial necessary if it wins 2.
bench trial for equitable claims. Judge must then take the jury’s findings of fact as true for the relevant equitable claims. Directed verdicts. Modern Encroachments on Jury Right A. declaratory judgment. 1. issues will be tried by the court. $ and return of property is legal. But the court may. If only demanded on some issues. i. FRCP 38: Right to Jury Trial Preserved “inviolate” A. where value in controversy exceeds $20. see Beacon Theatres B. II.” V. For “mixed actions” that have a mixture of legal and equitable claims. The parties stipulate to a nonjury trial. on motion or on its own. and no fact tried by a jury shall be reexamined in any court of the United States. filed. Court typically holds that Seventh Amendment preserves “fundamental elements” of jury trial and not 1791 procedures—just “substance of right. Dairy Queen: DQ wants jury trial on damages arising from breach of contract. on motion. DQ seeks writ of mandamus. Jury Trial? I. IV. finds no right to jury trial. Held: Right to jury trial on legal claims can’t be abridged even if claims are incidental.overwhelmingly to one side that there is no legally sufficient evidentiary basis to find for P. statutory causes of action that didn’t exist in 1791 see NLRB v. injunctive relief. Historical Test: In considering whether party has right to jury trial: a. 6-person juries. Party may demand by serving other parties in writing no later than 14 days after pleadings close. FRCP 39. When jury trial is demanded. must so state. administrative agencies. Jones & Laughlin 1. 1935: Right preserved as under English common law.Calling it “accounting” and not debt doesn’t suffice. court must note so on docket. i. 39b If no demand is made. other parties have 14 days to serve demand for jury trial on other issues. damages awarded. and injunction to stop Beacon from suing. Right is waived if not properly served. and finding on breach applied in bench trial on equitable claims. partial new trial. or 2. right of trial by jury shall be preserved. May demand jury trial on only some issues. than according to the rules of the common law. EVEN if it is a counterclaim. B. Beacon counterclaims. judge characterizes those legal claims as “incidental” to demand for accounting. D. special remedies like injunction. Seventh Amendment A. Does the claim more closely resemble a legal or an equitable action? b. III. Trial by jury or by court A. Remedy is the most important. 1791—jury trial for legal claims. Try the legal issues to a jury first. a. specific performance— equitable. McCulloch v. Court. 2. Breach of contract will be tried to jury. the court will: A. Finding will be applied in equitable action for declaratory judgment. In suits at common law. C. Only one party need demand. as it is legal—seeks damages. directed verdict appropriate. Beacon Theatres: Fox files for declaratory judgment that it did not violate antitrust laws. alleging antitrust violations. Held: Counterclaim must be tried. 47
. Trial must be by jury unless: 1. Redman. Is the remedy sought legal or equitable in nature? i.
After jury trial. a. C. A party has to move for new trial no later than 28 days after entry of judgment. Join for hearing or trial all issues. open the judgment. aa. but court cannot grant JMOL 1. Cons of jury trial A. After a nonjury trial. Can consider jurors couldn’t understand material. 1. fairness. court can grant new trial on all or some issues if 1. 1. the court may. costts more. FRCP 59: New Trial. Opposing party has 14 days to respond with its own affidavits. for any reason new trial has been granted before. Long. Standards A. 2. But may grant a new trial for one of three reasons: a. C. When you forget to file timely notice—depends on stage of litigation. The verdict was clearly erroneous because it was not supported by the weight of evidence i. court may 1. Standards 48
. must be one continuous sequence. Judge actually weighs evidence (doesn’t mess up jury right—new trial) ii. Consolidation. the court may convene an advisory jury. Easier for one judge than an entire jury. After nonjury trial. Separate Trials A. etc. B. If evidence was not insufficient to support a verdict (substantive OR money judgment). “Process errors” in conduct of trial or jury caused prejudice and affected the verdict (FRCP 61—most errors are harmless) c.order jury trial on any issue for which jury trial hasn’t been demanded. etc. Consolidate the actions. New Trial: Reasons. But juries are considered much better at deciphering credibility in a hesaid. B. Altering or Amending a Judgment Procedure A. (weighed against how your side will be viewed by the bench) notes p. Losing party finds new evidence after trial (FRCP 60—rare) B. Motion to alter or amend judgment must be within 28 days of entry of judgment II. 1. on motion. Must preserve right to jury trial. or 3. If the motion is based on affidavits. Parties get notice / opportunity to be heard 2. Judge empanels jury. Court may order new trial on its own initiative within 28 days of entry of judgment. New Trial and Relief from Judgment I. 10 VII. 2. Issue any other orders to avoid cost or delay. she-said trial. make new findings. b. VI. FRCP 42. Court must specify reasons in order D. For convenience. 1. not bound by verdict. court may sever claims for trial. party must file them with motion. economy. If actions before court involve common questions of law or fact. In an action that doesn’t give a right to jury trial. Court may grant timely motion for new trial for reason no stated in motion 3. jury may struggle to understand complex cases. On motion or on its own. for any reason a rehearing has been granted before.
Pursuant to Rule 59(e). No such thing as additur in federal court. denied as to creation of hostile work environment because not preserved with 50(a) motion. didn’t exist in 1791 IV.” really. Newly discovered evidence that due diligence would not have found in time for trial 49
. Then. surprise. appeals court might reverse the JMOL decision. the winner has no reason to ask for a new trial. App Cts give district court a lot of leeway: present and better able to appraise than from the cold record. Created hostile work environment. Cooper: P alleges D 1. 50(c): The trial court conditionally rules on the motion for a new trial. 3. So. Triveldi v. Then. award 1. At close of case. a. maybe. BUT: If new trial on one issue would cover same ground as another issue. 2. Altering the Judgment A. “Against weight of evidence.” “clearly erroneous. 50(e) allows the verdict winner to assert grounds for a new trial. it would have to remand for the motion for a new trial. FRCP 60: Relief from a Judgment or Order 1.” really. Party moves in alternative for JMOL and new trial. a. denied. May take maximum from comparable precedent. On motion and just terms. But. Verdict seems to be against weight of evidence. If court grants JMOL but doesn’t decide on new trial. Not appealable until after FINAL judgment / whole new trial ends B. 2. VII.” “seriously erroneous” 2. because the damages award is bound up with findings on liability. Rationale: “not part of jury verdict. existed in 1791 2. For awards: does amount of award “shock the judicial conscience?” C. renewed with 50(b). VI. P may accept or risk new trial c. the appeals court could reverse on the denied JMOL. Moves in alternative for new trial. Remittur—judge reduces award to that which “does not shock judicial conscience” a. party may move to alter judgment—often. The court can correct all clerical mistakes until the appeal is docketed with the appeals court. Remitutter: P can accept $50k or risk new trial. That ruling is used if the JMOL judgment is vacated or reversed. Review A. If damages / liability are interlinked. So. Failed to promote him. but depends heavily on credibility judgments. Other two claims involve credibility determinations and are not unreasonable with legally insufficient evidentiary basis. Rationale: “reasonable party of jury verdict. Denied. New trial on all claims. it needs leave. Combined Motions A. Retaliated against him. When Appropriate 1.1. Partial New Trial 59(a)(1) – claim or element A. 1. the court can relieve party from judgment for: a. the two should be tried together 1. excusable neglect (usually default judgment) b. should not be partial new trial on damages. V. V. If JMOL is denied. minimum. D moves under 50(a) on retaliation and failure to promote at end of P’s case. 2. or average b. III. Should be avoided if verdict depended heavily on credibility judgments—juries are good at that—but more appropriate if trial was complex. 59(e) to alter judgment: Award is crazy ($700k). For mistake.
curative/corrected instruction B. Serious instructional errors (some instructional errors are fine) 4. Serious jury misconduct (going to a psychic)
Remedies and Post-Judgment Procedures
Remedies I. Exception. While an appeal is pending for a judgment that grants or denies an injunction. 4. the court may grant. You have paid award. Non-harmless errors (not listed in rule) Must effect a party’s substantial rights 1. FRCP 62: Stay of Proceedings to Enforce a Judgment A. ($ judgment irreparable? Other party might not return—especially 50
.c. likelihood of irreparable harm. cumulative evidence. etc. receiverships. An appellant can obtain a stay by supersedeas bond— enough $ to show the court you’re good for the amount of the judgment. for: 1. or disturbing a verdict. FRCP 61. even if appeal taken and unless court orders otherwise. Pease: P unsuccessful on motion when lawyer basically abandoned his case before it was over. no error is ground for granting a new trial. 2. Motion must be made within a reasonable time. Irrelevant. or injunction is satisfied f. 4. Harmless Error A. Fraud on the court (paying jurors. E. no service or jurisdiction in default judgment) e. Improper grant of dispositive motion 3. excusable neglect. party won that was helped. must be extraordinary) i. Pretty ungenerous. setting aside the verdict. A Rule 50(b) motion for JMOL. D. court considers. modify. forging documents. a. 62(d). Court can set aside judgment for fraud on the court at any time on its own for #3 or #4. or other terms that secure the opposing party’s rights. just within a reasonable time 3. Any other justifiable reason (almost never. effect on public interest. preliminary injunction factors—likelihood of success on appeal. For a-c. basically. Injunctions. Stay with bond on appeal. No judgment is executed until at least 14 days after it is entered. Not easy. When considering whether to grant stay. no hardline time limit. prejudicial evidence 2. The court disregards errors that don’t affect substantial rights. 1. evidence cam in anyway in another way. Injunctions while appeal is pending 62(c) 1. VIII. A Rule 52 motion to amend findings. The court may stay execution of a judgment on appropriate terms for security pending: 1. 5. A Rule 59 motion for new trial or to alter the judgment. Unless justice requires otherwise. balance of equities.) i. jury worked on a different theory. or direction for patent accounting B. 3. no later than 1 year after judgment. A Rule 60 motion for relief from judgment. C. Even for default judgment—must show meritorious defense. all above have a 1 year limit d. or suspend the injunction for bond. Judgment is void (usually.
1. right to be heard. Corresponding or equivalent remedies C. Rule 69: Execution A. losing) a. 5. every remedy is available that. and P’s chance to post also deprives her of property. Writ commands sheriff to take goods. 2. A money judgment is enforced by a writ of execution. Notice. B. a. FRCP 64: Seizing a Person or Property A. 1. Security bond inadequate substitute. Shevin: Fuentes bought a gas stove from Firestone on credit. Posting a security bond for double value of the goods. Writ commands U. MDNC forms a. Garnishment (as with wages or bank accounts—property coming from 3rd party indebted to debtor. litigation.” which is a property interest. Held: Violates due process. 2. 1. Sequestration (seize specific property in controversy pending outcome.S. who is indebted to creditor) 4. Filling out form for clerk saying goods are “wrongfully detained. In historical replevin. P lacked full title. etc. which he does. but can’t breach the peace in the process. “tools of trade” i. hearing must occur at time when deprivation of property can be prevented. including the debtor. 4.
. Firestone obtains writ of replevin for stove and phonograph by 1. Fuentes v. bank accounts.) II.in class actions. Under FL law. creditor can obtain discovery from any person. Fuentes gets notice of action when goods are taken. b. Attachment (seize property—any property—to ensure presence of assets to satisfy judgment) 3. Dissent: Seller has more of a property interest than buyer / if default disputed. Specific remedies available include: 1. a Picasso) 6. Replevin (seizing property wrongfully taken from P by D) 5. but nonetheless had “possessory interest. provides seizing a person or property to secure satisfaction of judgment. During and after an action. III. but can post double bond within three days to regain possession. and who owns what a. Want to avoid complete indigence—won’t take your house or your hammer C. opportunity for hearing—low chance of false claims of default (bond. marshal to seize property to be sold b. The procedure is governed by state law. has no hearing. Arrest 2. When you repossess property. you can do it without a court order. burial plot. P can learn where $ is. Fuentes is in default. Can use info to garnish wages. under law of the state where the court is located. 3. B. Parties whose rights are to be affected are entitled to be heard. Some properties are exempt: residence. Replevin gets you a court order and lawful agent to seize property. In aid of judgment or execution.” but not showing it. if P asserted goods were his. Firestone retains title until payments complete. as the Rules provide.
Movant’s attorney certifies efforts to give notice. E. Obtaining a writ of attachment or sequestration 1. and it doesn’t… 1. A TRO issued without notice must contain: a. B. Must be promptly filed at clerk’s office. But. motion for preliminary injunction must be set for hearing at the earliest possible time. Describe why it was issued without notice d. Every preliminary injunction and TRO must: 1. Movant shows. and 3. jury right must be preserved. Court must hear as promptly as justice requires. Takes precedence over all other matters. If the judgment requires a party to act. i. 65(c) The court can only issue a TRO or preliminary injunction if the movant gives security in an amount the court considers proper to pay costs and damages to a party wrongly restrained or enjoined. The court can only issue a preliminary injunction on notice to the adverse party. evidence that would be admissible at trial that is advanced at the hearing becomes part of the trial record. At hearing. State its terms specifically. Date and hour issued b. by affidavit or verified complaint. 65(d). Contents and Scope. The court must issue the writ of execution or assistance E. Obtaining writ of execution or assistance 1. the court can enter an order divesting the party of title and vesting it with another. Constructive notice is insufficient. If property at issue is within the district where the court sits. why it shouldn’t be required 2.IV. but court can extend another 14 for good cause 3. The TRO expires after 14 days. entered in record 4. 65(b) Temporary Restraining Orders 1. 52
. FRCP 70: Enforcing Judgment for a Specific Act A. that she might suffer immediate and irreparable injury or loss before the other party can be heard b. Describe injury and why it’s irreparable c. The court can issue a TRO without notice to adverse party (dangerous!) only if a. An expedited hearing can turn a TRO into a preliminary injunction: a. The party who obtained the judgment or order for possession applies 2. V. On 2 days notice to obtaining party. Describe in reasonable detail—not by reference to complaint—acts to be restrained or required F. A preliminary injunction or TRO binds only those who have actual notice by service: (contempt of court if you violate). The clerk must issue the writ of attachment or sequestration D. The court may hold a disobedient party in contempt. D. Even when there is no consolidation. State reasons why issued. C. If TRO issued without notice. Court may order act done at party’s expense by a person the court appoints B. 2. The party entitled to the performance applies to the court 2. FRCP 65: Injunctions and Restraining Orders A. adverse party can appear and move to dissolve or modify the order. court must dissolve TRO if movant doesn’t proceed with motion b. The court may advance the trial on merits for an injunction and consolidate with a hearing for a preliminary injunction. Has effect of legal conveyance. C.
a preliminary injunction through the end of the case. How will this affect third parties? VI. Two weeks before counterclaim. Inc. Is Hazeltine bound by injunction / judgment? Held: No. etc. did not sign stipulation. Camenisch: Camenisch. $65 million against HRI. Court allows on $3. Held: 1. harm to D 4. Is the injunction in the public interest? a. was to be considered same entity as HRI for litigation. People acting in concert or participation with parties 4. i.000 bond from Camenisch. informal b. wants sign-language interpreter per federal law. never served. and a permanent injunction beyond the end of the case. servants 3. An injunction binds only parties. VII. Grant of P. never formally appeared. When considering whether to grant preliminary injunction. Not limited by constructive notice. procedure not followed here. but is still bound by other laws G. The two have different standards: a. Probably bound d. Parties’ agents. conclusions of law not binding at trial d. Zenith gets injunction on foreign TV stuff. depends on four factors above 2.1. If HRI were a shell company. full opportunity to present cases. 65(a)(2) allows—but requires notice to parties. Harm to P vs. University of Texas v. officers. Is the party likely to succeed on the merits? 2. Hazeltine Research. Findings of fact. Interlocutory appeal: COA affirms. and Hazeltine and HRI alter egos… i. A judgment in personam cannot bind persons not named as defendants or made parties by service of process. 1. Camenisch has graduated and argues the case is moot. Will the party likely suffer irreparable harm without the injunction? a. alleging patent misuse and conspiracy in restraint of trade under Sherman. Hearing for preliminary injunction is hasty.” or something that the court can’t fix? 3. a. Z answers with counterclaim for treble damages and an injunction. v. grad student at UT. If expedited trial appropriate. By that time. employees.. Z and HRI stipulated that Hazeltine. only actual 5. Probably bound c.I. Who pays for interpreter depends on final adjudication on the merits 3. parties’ agents. Hazeltine not named as a party. If Hazeltine had stipulated or was acting in concert with HRI… 53
. HRI’s parent company. court considers: 1. Seeks declaratory relief. Party not required to prove case in full c. b. Does the balance of equities tip in the party’s favor? a. Remanded for adjudication on the merits. If Hazeltine had directed litigation for HRI… i. Hazeltine. Is it “just money. attorneys. COA agrees.: HRI licenses patents to Zenith and alleges Zenith infringed them. wants to decide who pays for interpreter based on finding that preliminary injunction was proper. and those acting in concern with parties. A person not in “concert or participation” is not bound by the order. Zenith Radio Corp. Parties 2.
Clerk sends notice to the Court of Appeals B.” court may declare rights and other legal relations of any party seeking such declaration. Must name each party taking appeal in the caption (for class action. if motion filed not later than 28 days after entry of judgment i. Must name court to which appeal is taken. but. reviewable as such. 4. FRAP Rule 4: Appeal as of Right: When Taken A. Party shows excusable neglect or good cause 3. Relief under Rule 60.i. Preserves the jury right 1. Filed with clerk of District Court within 30 days of final judgment (needs to know it should stay proceedings) 2.” IX. etc. 4(a)(3) In one party files timely notice. In a “case of actual controversy. “reverses the posture of the parties” and often actually decides a damages claim a. If the flipped case provides a jury right. VIII. Has effect of final judgment.S. Court may order a speedy hearing C. To amend under 52(b) c. II. name rep) 2. Attorney’s fees under Rule 54 d. 50(b) for JNOV b. Declaratory Judgment Act A. To alter or amend under Rule 59. Rule 57: Declaratory Judgment A. “Case of actual controversy”—must be real injury. II. 1. Flip the case. Probably bound. other party can file notice within 14 days or end of 30-day limit. 4(a) Must be filed with District Clerk within 30 days of entry of judgment 1. whether or not further relief is sought. Filing the notice of appeal (not asking. FRAP Rule 3: Appeal as of Right: How Taken A. Appeals I. Jurisdictional limit—court considers sua sponte 2. Traditionally an equitable remedy. b. telling) 3(a) 1. Must designate judgment or order being appealed 3. Contents of Notice. Existence of another adequate remedy doesn’t preclude declaratory judgment action B. Clerk sends copies to all other parties 3. Can only get declaratory judgment as “mirror image of actual suit. whichever is later. you can demand jury trial. 3(c) 1. All above motions toll the appeals clock
. 28 U. new trial under Rule 59 e. 4(a)(4) Time to appeal runs from entry of order disposing last of following motions: a. Party moves for extension no later than 30 days after limit expires. 4(a)(5) District court may extend limit if: a. 2201.C.
Court only considers issues raised by appellant iii. 1. for the appeals court to consider. For error in trial court to be reviewable on appeal. Weird jurisdiction rules for CoA for Federal Circuit—patents and such. preserved below. at its discretion. 1291 A.III.S. Appeals: The Process A. B. A party must be “aggrieved” by the error. Reviewability A. Generally. Paper record. prevents surprise on appeal. compile “record appendix” a. 28 U. i. it must be prejudicial. Courts of Appeal correct legal errors made by the trial court. With help of clerk. FRCP 61 directs court to ignore harmless errors. When a judge makes an order not otherwise appealable. Supreme Court may make rules allowing interlocutory appeals. permit appeal from the order. arguments explaining position 4. 28 U. identify prejudicial error. D. First party likely files reply brief 6. 1292 A. usually three a.” 55
. Set of relevant documents to submit with briefs: all necessary docs. issues you claim wrongly decided. ii. Different standards of review based on types of rulings VI.S. Statement of proceedings below. Different for CoA for Federal Circuit. Panel of judges assigned to case. V.C. 2. File a brief a. Also puts the other party on notice and gives it an opportunity to respond in trial court. but thinks that the order involves an unclear area of law and that immediate appeal would advance litigation. along with the judge’s response. B. Straightforward cases—based strictly on briefs. Prejudicial a. Courts of Appeals have appellate jurisdiction from all final decisions of U. C. Interlocutory orders on injunctions. More complex—court hears oral arguments i. Lose. and presented above. Party must object in trial court. 1.C. which gives the trial judge the opportunity to correct the error (making appeal unnecessary) and puts the objection in the record. receiverships. Preserved Below a. District Courts. CoA may. transcripts necessary for Court of Appeals to understand proceedings 3. 1. facts giving rise to case. no witnesses—not a retrial ii. both the trial court and the appeals court use the Rule 61 standard. Process 1. Courts of Appeal have jurisdiction of appeals from: 1. he must say so in the order. 2. Party must apply to CoA within ten days of order. Except where review may be had in the Supreme Court. and file notice in DC within 30 days 2.S. Exceptions: For “plain legal error. IV. Other party files answer brief refuting arguments 5. record appendix b.
Retaliation under 1st amendment. Title VII retaliation presented above. 1291: CoA’s have appellate jurisdiction over all “final” decisions of DC’s 1. Must actually argue.S. Entry of judgment for one party or another iii. Argues Title VII discrimination. i. So clear and obvious DC should have noticed it even without argument. but counterclaim remains: not final i. for D on others. If one claim by plaintiff is dismissed. a choice). EP not presented above. even reply brief is too late 4. If all plaintiff’s claims dismissed. Jury returns $65k on IIED. Appealability: The Finality Principle and appellate Jurisdiction A.000 appeals in 2009.C. 5. 1st amendment retaliation. Usually. Congestion—60. (ex: “wetback”) c. Attorney’s fees don’t keep judgment from being final 3. but not preserved below. not its opinion. 4. Equal Protection claim. M appeals and argues Title VII retaliation only in brief. Ends litigation on the merits b. Different for appellee i. and IIED at trial. Retaliation Title VII. but others remain: not final c. 5. 4. 2. Did the movant have an opportunity to contest at Dist Ct. D wins IIED on cross-appeal. Did it affect substantial rights? d. Must present and argue the error to the Court of Appeals if you want to disturb the judgment i. 3. Provides guidance for CoA and notice to other party i. burden CoA 2. Held: 1. M objects that EP not included (not sleeping. Sex discrimination Title VII. MacArthur v. the final decision of the case: an order that “ends the litigation on the merits and leaves nothing for the trial court to do but execute the judgment. Often. 2. Title VII discrimination not presented above. most from final judgments 56
.a. Does it raise significant question of public concern? iii. University of Texas Health Center at Tyler: M asserts five claims: 1. Judge instructs on those three claims. Court also considers… i. Pure question of law? Will refusal to reconsider result in miscarriage of justice? ii. Then. not just list. A party can make any argument supported by the record to affirm the judgment—the CoA reviews the trial court’s judgment. 3. Won on IIED. WHY? : “Piecemeal” appeals throughout litigation would disrupt efficiency.” i. 1st amendment retaliation not presented above. Was there error? b.? b. Conclusion of litigation in district court ii. 3. 28 U. IIED. Presented Above a. Was it plain? i. V. in brief a. What is “final?” a. Why the finality rule? Why so few interlocutory exceptions? a.
3. Does the order concern a controlling and novel question of law? ii. If it is not. not certifying a class). sound the “death knell” for litigation (say. 28 U. CoA e. A non-final order may be appealed if: ( compromises separability finality. resources for lawyers. Since the judgment isn’t final. Summary judgment granted to D. Allows interlocutory appeal for orders concerning injunctive relief.C.b. If all three… i. Is the claim factually separable from others in the case? If it is. Rule 54(b): Final by Direction (not really an exception—just unusual finality) a. 2. Duplication—Many interlocutory issues can be considered after final judgment c. Solution: let judges decide ad hoc whether to take appeal. 1292(b): Discretionary Review of Certified Questions a. CoA would probably have to consider same issue twice—just cause for delay. c. b. Some interlocutory decisions raise controlling questions of law. at its discretion. i. The court doesn’t decide a “claim” until it decides the proper remedy. an order adjudicating fewer than all claims is not final and may be revised at any time. but many parties in case. If parties settle. etc. won’t appeal f.1154) a. Is there substantial ground for disagreement on the answer? iii. D won’t know it’s out of the case until appeal following final judgment. no appeal ii. Delay—Many appeals would bring litigation in DC to a halt d. Why? Ruling on injunction usually effects “life on the ground” by irreperably harming the losing party. Court will never grant 54(b) on part of a claim—no final judgment as to liability alone. The Collateral Order Exception (p. Standard: i. Otherwise. CoA may. Exceptions to Finality Principle (Interlocutory Appeals) 1. 4. urgency. 30-day appeals clock begins to run. District Court certifies the question by so noting in its order ii. immediate appeal would not overlap with later appeal from final judgment.” court may enter final judgment i. Often unnecessary i. The court may direct judgment to fewer than all claims or parties if the court decides there is no just reason for delay. 54(b) allows D to move for entry of final judgment b. Would appeal help advance ultimate termination of litigation? c. 28 U. If application made within 10 days. take the appeal. CoA reviews errors in result B. importance) 57
. time. 1292(a): Orders concerning injunctive relief that are not final a. a. If there is “no just cause for delay. Expense—briefs.S. i. d. If court grants 54(b) motion. Proper relationship between courts—DC decides on merits. All injunctions.C.S. not just preliminary injunctions ii. If party wins.
28 U. CoA has advantage on law questions. Continuum on page 1176. ii. sometimes. De Novo standard 1. 2.i. C. other interested parties involved. and promotes uniformity in the law 58
. Another: Court finds Philippines lacks sovereign immunity. a. 28 U. 1651: Extraordinary Interlocutory Appeal by Mandamus a. Trial judge is respondent c. 1291: CoA may only review final decisions. There is an important issue of controlling law (not just trial court’s discretion) b. Important question of controlling law (importance): clearly within court’s discretion to impose reasonable cost-sharing orders e. 1. CMO orders cost-sharing plan among all D’s in return for P waiving work product protection. No other means of relief (appeal not other means if must endure trial) ii.1176) B.S.) 5. Did D’s act constitute intentional discrimination? 3. Doesn’t fall under collateral order exception a.S. c. Standards of Appellate Review: How it’s reviewed once it’s there A. No subject-matter jurisdiction over appeal VI. Collateral order: A Rule 24 motion to intervene is denied.C. Can be reviewed on appeal from final judgment (apparently PJ is about not paying.000 P’s. Used for questions of law and. because the point of sovereign immunity is to keep sovereigns out of court. Effectively unreviewable on appeal from final judgment (urgency): RFC can appeal from final judgment and recoup funds. It has been completely resolved below. no contacts. In re Recticel Foam Corp. Not a collateral order: Sued in Alaska. and interruption of discovery process decreases efficiency. Completely resolved below? (finality) Further orders forthcoming. CoA judges good at law. It is unrelated to the merits of the case. too d. 12(b)(2) denied. Unreviewable in first case because you’d have to do trial over. may be altered or amended. (separability) b.C. don’t know total costs c. ii. in second. and fragmented. seeks writ of mandamus. Request CoA to command DC to fix something when DC clearly screwing up b. not not appearing. Unrelated to merits? CMO intertwined with main case. orders are frequent. iii. trial courts good at finding facts and issuing orders i. Based on each court’s specialties and weaknesses (p. Would also disserve trial court – CoA relationship f. incapable of vindication on appeal from final judgment iv. RFC notices interlocutory appeal. Also subject to modification. 200 D’s in hotel fire. Must show: i. mixed questions of law and fact when the question is whether the trial court correctly applied law to admitted facts a. “Like new” 2.: 2. repetitive. CMO like a discovery order—deals with preliminary matters. Clear and indisputable right to relief.
CoA applies the “reasonable jury standard” to the verdict. Three elements necessary in order to bar a claim under claim preclusion: A. “Same evidence” test: older. other non-merits defenses in bench trial: all facts) 3.” A. out of vogue 59
. usually B. “Claim must be the same as the claim litigated in the first case. WHY? The claim preclusion doctrine prevents claimants from litigating claims they fully litigated in a previous case. If there are two plausible ways to view it. i. II. but it’s wide. Under this test. space. origin. Measure of deference to trial judge—advantage in making credibility judgments a. Transactional test. parties shouldn’t have to convince two courts of case D. On merits—SOL counts C. Used for decisions made in managing case—discovery. trial judge’s role. Final—judgment entered (appeals.C. a. not legal theory. Now that we have Rule 18. Abuse of Discretion Standard 1. and motivation? Do they form a “convenient trial unit?” Like compulsory counterclaims for plaintiffs. just like trial court 2. i. pending motions don’t affect) iii. The previous case must have resulted in a valid. admit evidence. Promotes fairness—D should be able to repose after first suit B. an appeal is not a retrial. Claim Preclusion—Res judicata I. on final judgment on the merits. judgment notwithstanding the verdict 1. i. 2. Preserves public confidence in judiciary—avoids inconsistent judgments C. i. Clearly Erroneous standard 1. Used for findings of fact by trial judge (in jury trial: on PJ. Most importantly. The claim must be the same as the claim (“case”) litigated in the previous case. Reviewing JMOL motions for directed verdict. promotes efficiency within the judicial system. 1. Transactional test is most common to evaluate whether claim is the same 1. The parties must be the same parties who litigated the first claim. Rule 52 makes no exception. Unless there is an exception because of adequacy of representation / legal relationship III.” Focus on facts. Entry of default judgment—less (severe) E. reviewing court is left with “definite and firm conviction” that mistake has been committed (similar to “weight of evidence”) a. duplication of effort. a. Consider: are facts related in time. scheduling. reversal is not appropriate. and you can bring claims together. and the claimant in the second case must be the same as the claimant in the first case. Three purposes for claim preclusion: A. Anderson: standard applies even when findings based on written record that CoA sees: CoA can’t reverse just because it would have found differently. Case management—lots b. “Was this the sort of thing a trial judge should do?” 3. Although there is evidence to support finding. you must. Valid—had jurisdiction. Hard to pin down real level of deference. B. SMJ. different theories of recovery constitute a single claim if they “arise out of the same group of operative facts. But then it reviews what the judge did: a question of law: reviewed de novo III. 2. notice (sometimes valid without jurisdiction) ii.
JMOL. 1. v. 2. “Judgment on the merits” 1. C. The first claim must have resulted in a valid. 1998: River Park wanted permit to develop property. C. breach of contract. If claim was “fully and fairly litigated. Exceptions to rule i. Transactional test better promotes fairness. or insufficient notice. Inc. A. Brings six-count claim in state court in tort. Summary judgment. IV. Judgment is final and claim is precluded if court enters judgment. Holdover from pre-Rule 18 days. Dismissed with prejudice. “Primary rights” test is rare—separate claim for each “right” that was violated. Focus is on facts and legal theory.” Hansberry. 3. suit won’t be barred. The evidence needed to prove a Due Process violation under 1983 differs from the evidence needed to prove the claims asserted in the present suit. usually default judgment (if you know and don’t show up)—all on merits 2. got it wrong. lack of jurisdiction.” (Not just. judgment probably valid unless court “manifestly abused its authority. 2. not the claim) 3. 2. IV. “Final”—was case resolved such that nothing to do but execute the judgment? 1. Rule 19—not on merits (problem is with the court. Pennoyer 2. suit will be barred. judgment doesn’t preclude nonparty from relitigating identical claim. 1.) Default judgment—not fully and fairly litigated. Typically. not “void” under 60(b)(4) 1. A. B. 3. but same evidence allows many claims that would be barred by transactional test.” even in the absence of jurisdiction. Filing concurrently in different courts doesn’t preclude either claim. Court adopts transactional test—if both tests are used. Sues in federal court alleging Due Process violation under 1983. Six exceptions: 60
. when plaintiffs may not have been able to join related claims. “Valid”—that is. Alleges City intentionally dragged its feet so property would be foreclosed and City could purchase at reduced price.1. improper venue. SMJ. The suit is barred if the evidence needed to sustain the second suit would have sustained the first. If court uses transactional test. River Park. a. Void judgments usually result from lack of PJ. Exception: Nonparties “in privity” or having legal relationship with first party that ensures their interests were fairly represented. and ‘fficiency. a. Nonparty gets his day in court—“One is not bound by a judgment in personam in litigation to which he has not been made a party. 1983 claim and present claims are all based on the alleged refusal to process and approve plans for development. If court uses “same evidence” test. even if motions are pending and even if losing party appeals. Parties in second case must be same as parties in first case. abuse of government power. SOL—trend is to consider it “on the merits” V. but one court usually stays proceedings. Pennoyer—judgment void because court did not acquire jurisdiction over property by prejudgment attachment. City of Highland Park. Rule 41(a) voluntary dismissal. same evidence test renders transactional test a “nullity”—any claim barred under same evidence is also barred under transactional. applied to City. Nonparty may have more incentive to fight than first party B. faith. final judgment on the merits.
2. Taylor v. 3. Some other extraordinary reason—doesn’t come up much. to avoid preclusion. Court in first case reserved your right to relitigate—says won’t treat claim as precluded. The balancing approach provides no firm guidance and encourages broad discovery. they can’t be brought in a later action. Consent. 1202 i. b. guardians. Claim preclusion is waivable. 6. 3. a. in Taylor v. fiduciaries. assuming transactional test. Counterclaims 1. 13(a) compulsory counterclaim rule has same effect—“Rule preclusion. a. 2. must bring all counterclaims arising from same group of operative facts. Taylor represented by same lawyer as Herrick. Virtual representation is like a common-law class action without Rule 23 safeguards. 5. Sturgell C. If a defendant asserts a 13(b) permissive counterclaim. 6. Claimaint is the same not P/D are the same. P couldn’t bring an aspect of the claim in the first suit—jurisdiction or joinder problem. Sturgell: Taylor filed suit seeking documents under Freedom of Information Act.1. D can give his permission. 1. who wants to bring a suit they know they’ll lose? (stare decisis—why waste money?) 5. Court likes clear-cut exceptions to the Hansberry / Pennoyer rule. Chemical burn—claim for pain. Nonparty has “substantive legal relationship” with first party: succeeding owner of property. Remanded to determine whether Taylor is acting as Herrick’s proxy. 50% chance of cancer. The nonparty “assumed control” of litigation in the first case and so had day in court. Can’t sue on the chance. Herrick. DC Circuit held Taylor’s suit is precluded because Herrick qualified as his “virtual representative” by employing a seven-part balancing test.” If party doesn’t assert all counterclaims arising out of same transaction or occurrence. P experiences continuing or recurrent harm. as in a “test case” where all plaintiffs have actions based on the same occurrence. P is explicitly permitted to relitigate by statute. can sue later if cancer develops. The first party is trying to relitigate through a proxy—old P controlling new case. 4. Special statutory scheme for certain causes of action that may only be brought on behalf of public at large (like bankruptcy). General Exceptions to Claim Preclusion 1. and Herrick gave him some documents obtained during discovery. Agency law—is Herrick the mastermind? Does he have the right to control Taylor and direct his legal moves? D. 7. Rejected by App Ct. 2. who restores aircraft with Taylor. 4. Issue Preclusion—Collateral Estoppel
. 4. Nonparty was adequately represented by party with the same interests in the earlier suit—class actions. i. suffering. bailee and bailor—based on needs of property law. The person agreed to be bound by the first judgment. 5. 3. already filed suit to obtain same documents. A claim is only precluded if the claimant in the second action is the same as the claimant in the first action. VI. Sometimes courts use virtual represenation exception: 7 balancing factors on p. Not precluding claim won’t spawn litigation.
If P established causation. exs: ownership of property. contributory negligence. If D pleads contributory negligence.” B. and P was not ii. “causally related” was close enough to “causation. evidentiary hearing. B. “Issue”—smaller than a claim. default judgment. and general verdict for D: a. E. III. (see Claim Precl) 62
. The issue in the two lawsuits must be the same. IV. family relationship. confession C. A. not denial of issue preclusion. F. A. A. validity of an instrucment. (comes up with administrative proceedings. The court must have issued a valid. 2. 1. issue of legal malpractice was precluded b/c brought up as defense in original suit.” 2. Stipulation. “Actually decided” 1. In Panniel. B. Not “actually decided. Six elements must be present in order for issue preclusion to apply: A. The issue must have been actually litigated with full and fair opportunity in the first lawsuit. Could be that D was not negligent. Look to substantive law i. Nichols. admission. which is why issue preclusion applies only to issues that were.I. P can’t move under 56(d)—more facts won’t help. The issue must have been actually litigated and decided with a full and fair opportunity for parties to make case. Some element of a claim—ownership of property. Felger v. final judgment on the merits. B. The court must have issued a valid. could be P was contributorily negligent. Harder to foresee than claim preclusion. Issue can be one of fact or law. etc. If D established lack thereof. C. Issue preclusion doesn’t apply if the issue was decided by ___ in the first suit. witnesses. Some forum that involves submission of evidence and discovery will suffice. II. The party against whom the doctrine is asserted must have been a party or in privity with a party in the first lawsuit. Doesn’t matter if court probably got it wrong—appeal is the remedy for that. How to assert issue preclusion: 1. C. jury instructed to assume it. final judgment on the merits. V. and general verdict for P: a. Was there an opportunity to appeal? Was action in small claims court? ii. 12(d) converts to 56 if court doesn’t exclude documents. The issue in the two lawsuits must be the same.” litigated. Written decisions are easy. Prevents a party from relitigating an issue that was fully and fairly litigated in a previous lawsuit. Move under 12(b)(6) and attach transcript from first case. “Actually litigated” A. E. general verdicts require some inference a. The issue must have been essential to the outcome in the first suit. not just “could have been. If D pleads contributory negligence. 1. Decided that D was negligent. A full trial isn’t necessary. workman’s comp) i. Panniel – were the injuries caused by motor vehicle accident. Look to legal effect. ground for summary judgment for D.
Cambria. Don’t want winners to appeal b/c of issue precl. Cambria. D. C. A change in the law might allow a different outcome C. As a matter of law. D wins. Did the new party mastermind the first suit.” A. Neither is essential. 3. Look at rules for finality. VII. a. can’t use it. Cambria. The party against whom the doctrine is asserted must have been a party. P. a. because insurance company adequately represented the Ds interests in the first lawsuit. Like legal relationships. Appeals problem. Without requirement of legal necessity. 63
. Suit 1: Court finds Jeffery. was negligent. Party against whom preclusion is asserted had a heavier burden of persuasion in the first action E. can’t be certified as final. i. was. Suit 1: Court finds Jeffery. was not negligent. Concern that non-essential findings not considered as carefully. regardless of what Cambria did. VIII. sort of first court has weird procedures we don’t trust D. or in privity with a party. and so can’t appeal. There is a change in the quality or extensiveness of procedures from the first case to the second i. A. court may deny issue preclusion at its discretion if one of five excepting factors is present and there is a “clear and convincing need for a new determination on the issue. Jeffery can use finding he was not negligent if Cambria sues him. Each finding is independently sufficient as a basis for judgment for Jeffery. If two cases are pending at once. Both are essential to judgment. adequacy of representation. SACHS says they got this wrong. Court finds D negligent and P contributorily negligent. Possibility of adverse impact on public interest. Panniel: Parties found in privity. P. D. The claims are really unrelated. Even if all elements of issue preclusion are present. 54(b) is final. 1. D. Cambria A. Circuit split on the issue. to the first suit. The issue is one of law. a. “proxy” factor in exceptions to party requirement for claim preclusion. Finding of Cambria’s negligence is dicta and not essential to judgment. Jeffery can’t recover if he was negligent. look to trial record. i. or it was not foreseeable at the time of the first action that the issue would arise again. The question: Did the party win or lose the judgment because of a certain finding? 1. Suit 1: Jeffery. and i. not negligent. and P gets partial summary judgment on causation. P. Jeffery can’t use issue preclusion to bar relitigation on issue of Cambria’s negligence in second suit. 2. was negligent too. Is there a substantive legal relationship between the first party and the party against whom claim preclusion is asserted? 2. The issue determination must have been essential to the judgment. negligent. or because the party sought to be precluded. or ii. others. Only part of a claim. Some say no issue precluded. Just dicta. Goes to full and fair. the finding on negligence could be used against him in an action against P. etc. B. Safeguard for “full and fair litigation” B. the party was unable to appeal in the first case.A. or is the old party masterminding this one (relitigating by proxy)? B. VI. judge can still revise it.
and the final judgment for Nichols necessarily depended on a finding that he was not incompetent. C. Elements of issue preclusion 1. Felger defended on ground that services were inadequate and introduced a lot of testimony to that end. a. Nichols: Nichols sued Felger for unpaid legal fees. Courts chooses not to exercise issue preclusion at its discretion because RWJ and Diaz didn’t have adequate opportunity to litigate in first suit—clear and convincing need for new determination. lacked adequate opportunity or incentive to litigate fully and fairly in the first action i. Cambria sues Jeffery. Jeffery sues in negligence. b. Parties same or in privity: dramatically poor decision—Diaz and JWR not involved in first action. Diaz. then sues for legal malpractice. RWJ. Was issue determination essential to the judgment? 1. issue preclusion bars Felger from bringing claim. Non-mutual issue preclusion: issue preclusion when the parties to the second suit are not identical to the parties in the first suit. III. Actually litigated + decided with full and fair opportunity: evidentiary hearing. Diaz: P injured in auto accident. NJM is not controlling them in this one (they stand to lose). Panniel moves for partial summary judgment on causation in tort action against NJM. Finding on Cambria’s negligence not essential to judgment in first action. expert witnesses—a mini-trial c. Issue preclusion generally 1. hospital. Legal malpractice claim necessarily depends upon a showing of incompetence. where arbitrator finds loss of toes “causally related” to accident. driver of ambulance. Felger loses. no substantive legal relationship f. Jeffery: Cambria’s servant drove his car upon Jeffery’s. Issues identical: causally related and causation close enough. hospital because court got “in privity” wrong ii. Nichols moves under 12(b)(6)—12(d)—56 for summary judgment. Might apply if there was a low amount in controversy in the first action IX. Issue preclusion does not bar relitigation on issue of Cambria’s negligence. Non-mutual defensive issue preclusion: A defendant fends off liability by asserting issue 64
. Panniel v. Valid. Usually used only for public interest In Panniel. used for Diaz. Essential to judgment: direct finding on causal relation e. B. II.because of adversary’s conduct or circumstances. Cases on Issue Preclusion A. JNOV for Jeffery on ground that Cambria’s negligence was established in earlier action and issue preclusion bars relitigation. Cambria v. jury returns verdict for Cambria. loses toes. Non-mutual Issue Preclusion I. final judgment on merits: yes d. Arbitration for PIP benefits against NJM Insurance. too. Court finds both parties were negligent. Felger fully litigated the issue of incompetence. Felger v. a. cross-examination. Jeffery did not recover because he was contributorily negligent—not because Cambria was negligent. a.
2. B. For defensive. executor. a. For offensive. The jury decided the patent was invalid. Incentive to litigate vigorously in first suit 1. there is an incentive for plaintiffs to join all defendants. For defensive—plaintiff chooses the forum 2. What if first 25 P’s lose. saying money was improperly paid to Cook. Blonder-Tongue Labs v.” because a finding against the defendant would help them. the University sued Blonder-Tongue for infringing the same patent. b. University of Illinois Foundation: University sued a lab for infringing its patent. For offensive—defendant is haled into court wherever plaintiff likes 65
. Bernhard v. jury finds money was a gift. What if the first plaintiff is the 26th—a statistical anomaly in a strong case for D? c. Prior inconsistent judgments against party against which preclusion is sought 1. Rationale: that party shouldn’t be able to keep relitigating the claim so long as the supply of plaintiffs holds out. The Supreme Court approved the use of issue preclusion to prevent relitigation on the patent’s validity. Promotes strategic use of attractive plaintiffs by attorneys D. (they’ve already lost on that issue) 1. too 2. Court simply adjudicates a dispute to see who’s got the better claim C. Party lacked access to procedural opportunities in first action? 1. plaintiff can foresee later suits—she would bring them—and knows that if she doesn’t fight and loses. III.” c. Bank of America: Relatives of deceased sue Cook. since finding against D establishes liability d.preclusion based on a prior finding against the plaintiff. no inconsistent judgments—finding against party precludes later suits 2. Rather than an “adversarial” vision… i. Can only be used against a party that had an opportunity to litigate fully and fairly in the first suit. Increases leverage for early P’s in settlement. Still saves time and $ for claims that have already been litigated. absent plaintiffs—and so takes a risk by not fighting like hell C. but raises some fresh concerns: A. issue preclusion. For offensive. Pennoyer &etc. For offensive a. for stealing money. Non-mutual offensive issue preclusion: A plaintiff tries to establish a defendant’s liability by asserting issue preclusion based on prior findings against the defendant. Incentive to join first suit 1. Court finds truth on issue of validity… a. For defensive. Cannot be used against a party that was not a party to the first suit. Incentives P’s to “fight like hell”… d. and 26th wins? Can 27th use judgment? b. there is an incentive for plaintiffs to “wait in the wings. Based on an “inquisitive” vision of the judicial system… i. the defendant can’t foresee later suits—they’d be brought by other. and a finding for the defendant wouldn’t hurt them. Later. since P’s litigated and lost on propriety of conveyance of $ in first suit. Relitigation is a waste of resources. For defensive. Same relatives sue bank. Trying one suit after another reeks of the “aura of the gaming table. 2. B. she loses those claims. and prevents the “aura of the gaming table” approach. since a finding against the plaintiff could bar later suits.
with incentive v.C. Nope—full and fair opportunity. In arbitration… A.E. Parklane did. Most states allow non-mutual defensive collateral estoppel. SEC brings suit against Parklane alleging misleading proxy statement and prevails in four-day trial. door open to new P’s if lost iii. Did D have little incentive to litigate vigorously in first suit? a. serious allegation. Shore. 1. where there is a right to jury trial. Parklane Hosiery Co. No “meeting of the minds. issue of proxy statement is precluded vi. i. a. unless there are grounds in contract law that make the contract itself revocable. 66
. enforcement of agreement to arbitrate 1. 1-11 lays down rules for arbitration.C. 9 U. and enforceable. or a written agreement to submit an “existing controversy” to arbitration. v. Five days’ notice.. the proceeding is stayed until arbitration is over. in first action. By name. If an controversy arises and the other side won’t participate in arbitration. None here iv. lack access to procedural opportunities available in 2nd? a. etc. but okay here. 9 U.S. is valid. Did P have opportunity to join first suit. Motion granted.” unconscionable contract. 3 Stay of proceedings when issue referable to arbitration 1.C. you must prove: a. irrevocable. Inc. An agreement in a contract to submit disputes “thereafter arising” to arbitration. court says: since this is two cases. If a party to an arbitration agreement initiates a legal action on an issue potentially referable to arbitration. On right-to-jury-trial question. Shore could not have joined SEC declaratory judgment action ii. 2 Validity. The court will do so to decide if the matter is referable to arbitration. 9 U. or is P manipulating doctrine? a. and to be bound by his judgment. designate body of arbitrators—most common (AAA) D. Did D. 1979: Shore files class action against Parklane alleging false and misleading proxy statements. There was an agreement. but not non-mutual offensive. F. E. Shore moves for partial summary judgment on issue of false and misleading proxy statement. agree to pick later. To get the order. C. “Thereafter arising” controversial—really a species of waiver—you give up your right to sue in court before you know what the dispute is B. Arbitration I. 4 Failure to arbitrate under agreement 1. Prior inconsistent judgments against D? a.S. it’s okay to use the bench judgment in the second case. Parties agree to submit a dispute to a private decision-maker. the other party must apply to the court to stay the proceeding. Court should not allow if factors below exist. not just one. you must petition the appropriate District Court for an order to compel arbitration. Problems: see above.C. a. Choosing an arbitrator 1. 9 U.S. normal service rules for other party. May submit an “existing controversy” or one “thereafter arising” 2 a.S. and if it is. Trial courts have broad discretion in allowing plaintiffs to use non-mutual offensive claim preclusion.
Award can be overturned if a. by arbitration. ii. Notice of application must be served on adverse party. 3 says court can dismiss when all issues in complaint must be submitted to arbitration. If parties have agreed that judgment of the court will be entered upon an arbitration award. No. 9 Confirmation of award of arbitrators 1. P alleges failure to promote and retaliation. (Can’t say. P alleges clause not enforceable because contains no clear waiver of statutory rights. It was procured by corruption. 9 U.C. 10 Vacating the award 1. duress. just agreed to assert them in a different forum. I. Purpose of arbitration is efficiency—quick and dirty way to settle disputes. Concern is that employers can make waiver of rights a condition of employment. court can modify or correct award if: 67
. E not exempted.C.C. a. b.S. failing that. P wants a stay so she can exercise post-arbitration right to appeal without refiling. D moves to dismiss and to compel arbitration. modified. E signed copy of standard “Employer Agreement” providing that any controversy arising from agreement should be settled first by mediation. If the jury finds both. or corrected. Circuit City established that FAA exemption for workers in “interstate commerce” applies only to transportation workers (1925 understanding of commerce clause). E alleges adhesion contract—no “meeting of the minds. Emeronye v. fraud. 9 U. 9 U. CACI: E hired at CACI as temporary coder. On application of party. H. Court must grant order unless award is vacated.” No fraud. Jury decides whether there was an agreement and whether the party is in default.S. stuff so bad the arbitrators weren’t even being arbitrators. court may direct re-hearing. and specify the court. and. b. If the issue is in dispute. 2. 2. and definite award was not made. arbitrate in AK. i.C. 2. court grants order compelling arbitration.S. use district court for district where award made. Informal. any party can go within one year of the award to apply to the court for an order confirming the award. 3. Evidence of impartiality or corruption in arbitrators c. G. she didn’t waive rights. or undue means b. the party in default can demand a jury trial. Arbitrators guilty of misconduct that prejudiced a party d. a. A non-party aggrieved by award can apply to the court to vacate. Contract is valid. Getting the law wrong not clear ground to overturn—not like an appeal. and that is so here.) 4. 9 U. then offered position as paralegal. But. If no court specified. 11 Modification or correction of award 1. your signature binds you unless one of those three. If time for award has not expired. final. Award is only vacated for really serious stuff—basically. 1. or mental mistake—under VA law.b.S. and failure to comply lands you in contempt of court. Arbitrators exceeded power or exercised power so poorly that mutual. The other side failed to comply. Agreement must be “fair enough” to preserve your substantive rights. F.
By creating superior courts.a. III. Federal courts make federal law by decision. property in award
I. not ascertained. Material miscalculation of figures or mistake in persons. The law is a judicial creation. Courts interpret and apply these laws. II. Legislative statutes abrogate the common law. Law is the command of the sovereign and is made. Old View: Law the Story Way A. B. State courts make state law by decision. 1652: The Rules of Decision Act A. The “common law” is not a brooding presence out there. a thing not ascertained. by courts. B. except where the Constitution or treaties of the United 68
. by made or declared. which rests below statutory law. New View: Law the Holmes Way A. Legislatures make laws.C. 28 U. C.S. legislatures impliedly confer upon the court authority to make law. The laws of the several states.
V. If a state court and federal court both look. c. such contracts are okay. in order to divine the “true” rule on the issue. 5. When Black and White infringed upon its exclusive contract. though they’ll look to it. MA. as well as “fixed and ancient” local customs. 3. they look at all common law. Story: “Laws” in the Judiciary Act of 1789 (became RDA) means. New York incorporates as state law: 1. a. They are not bound to follow the common law as interpreted by the state. Under Swift. Resolutions of 1787 NY convention. I. Swift says. and decisions of NY courts are part of NY law. he can collect. 69
. NY Const. and find different results—should be okay. Story says no. 1. ii. Instead. which certified question to Supreme Court.” 1. They both followed the statute. a court trying to apply New York law looks to this statute. federal courts sitting in diversity are bound to follow: a. then entered into an exclusive contract with a KY railroad. 4. The common law as of 1775. and post-1938 legislative alterations. the positive statutes of the state and the construction state courts put upon them. Question is whether pre-existing debt is a “negotiable instrument” (we know that Swift is the bona fide holder—if it’s a negotiable instrument. “look to the common law. if Swift can’t recover. Colonial statutes as they stood in 1775. RDA says that federal courts have to follow state law. When Swift tried to collect from Tyson. 4. Under KY law. Resolutions of Revolutionary Congress. our whole system of credit is undermined. decisions of NY courts are evidence of the law. Not in any statute or state constitution—common-law rule. Tyson had learned that the “land” he bought didn’t exist. Tyson paid Norton with a bill of exchange. 1.) 2. Art. 5. B. State statutes. And many places would allow it—England. Tyson. So.States or Acts of Congress otherwise require or provide. 3. VI. the contract is void as against public interest—monopolistic. Issue: Do the “laws of the several states” include state common law? Holmes say yes. Legislative acts in force through 1938. i. recent NY cases support my claim. he refused to pay. IV. it sued. Swift sues in SDNY. 1. Swift v. Maybe customs pertaining to local matters. shall be regarded as rules of decision in the courts of the United States. S14—typical reception statute A. Tyson says. and not laws themselves. 2. It dissolved in KY and re-incorporated in TN. Why? State and local courts do the same thing—look to general law and try to ascertain what it is. b. RDA directs federal courts to apply only state statues and “fixed and ancient” local customs. a. In most other states. b. 1842: Norton and Keith swindled Tyson. Black and White Taxicab: Brown and Yellow Taxi was a KY corporation. CT. 2. Here. It says. “Laws” does not extend to questions of general law that don’t depend on local statutes. in cases where they apply. which Norton signed over to Swift.
The Judiciary Act. what we have instead is lack of uniformity in state law. If state law considers D’s act illegal. States make laws in two ways: by legislature. Article III. 2. 4. There is no “transcendental body of law outside of any particular state.
. absent the judiciary act. CoA applies general common law and affirms judgment for Tompkins. Taxicab case showed how Swift doctrine can be manipulated by forum shopping. State and federal courts “go to the same source to interpret the common law. VII. Except in matters governed by the Constitution or Acts of Congress. loses arm. and that the First Congress wanted federal courts to apply state common law. by judiciary. Tompkins. in very important dissent a. Section 2 might imply it. 10th amendment problem— governance in those areas is reserved to the states. Most states allow. because acts covered by state law are judged differently forum by forum. KY’s principles are part of the general common law and are not local. 1938: Tompkins walking along right-of-way in PA. The idea was that state laws would tend to converge as the federal interpretation of the common law was applied. Nothing says the courts can do it. 3. and the First Congress thought it unclear enough to pass the RDA. a. Brandeis: Recent scholarship indicates that Swift misinterpreted the Judiciary Act. v. so the Court is not bound to apply its rule on the contract. Reed in dissent: Swift misinterpreted “the laws. either: there is no federal general common law. PA law: Tompkins is a trespasser. If federal law considers the D’s act illegal. Didn’t happen. as applied in Swift. diversity suit. federal courts would follow it. b.” The law does not exist without some definite authority behind it. Erie is NY corporation. its power are enumerated. 1. VIII. Remanded for CoA to apply PA law. Holmes. federal courts couldn’t interpret general common law for themselves. the constitution impliedly gives that power anyway—so state common law has the force of statutory law. whether statutory or common. The Rule of Erie: a. But in creating a supreme court. If a state constitution said the state supreme court’s decisions were law. i. Both are equal. D is barred from removing under 1441(b). Expectation: state judges would stop adopting federal interpretation of common law after Swift. Swift sought uniformity in national law. and RR has no duty to him in mere negligence. c. And. P can sue in state court. 6. b. 3. “Fallacy” of Swift: the notion that there is a “true body of substantive law” for judges to discover. 5.Lochner era—freedom of contract—okay. Not at all clear that. Constitutional problem: Congress can’t declare substantive state laws. Problems under Swift 1. 7.” but its application isn’t unconstitutional. Forum-shopping for out-of-state plaintiffs a. didn’t happen. this might imply that Congress can’t prescribe procedural rules for federal courts. is unconstitutional (but its correct interpretation is not). P can sue in diversity in federal court. federal courts sitting in diversity must apply state law.” and both try to ascertain the rule. 2. General common law: duty in mere negligence. Struck by train. Erie Railroad Co.a.
2. 1957: Federal court predicts MS supreme court would reject privity requirement in products liability. If there is no supreme court precedent. time and $. Mason. Old choice-of-law provisions were consistent—place of incident. a. Klaxon Co. Klaxon and Forum Shopping 1.Erie II I. appellate court applies new law. Stentor dissolves in NY in 1919. gets judgment of $100k. Under Klaxon. federal courts must apply state common law rather than taking their own view of what the common law might be. What if law is unclear? A. which makes interest mandatory. in cases not governed by federal law. A federal court sitting in diversity must apply the choice-of-law provisions of the state where it sits. Rarely used: clogs dockets. Co. The Rule of Klaxon a. Whose choice-of-law provisions to use? C. P’s can file there. one party will always have an interest in being in federal court. Now. B. more complicated. Under Klaxon. Initial forum-shopping would be limited to state-federal for P’s. If there were a uniform federal rule on choice of law—say. 3. Erie demands that federal courts not make independent judgments on choice of law. decisions from lower courts. the law of the place of the tort—the same law would apply in almost all diversity cases. a plaintiff can’t walk across the street to be governed by different law. in a diversity case. 1. especially when D is subject to general jurisdiction in many. similar states. Produces lack of uniformity among federal courts—such is federalism. more forum-shopping—state-by-state in federal court. Under Erie. Some allow only when no controlling precedent 2. and out-of-state D’s can remove. in diversity. State statutes often allow federal courts to certify questions to supreme court. Otherwise. dicta. most cases settle II. Asks court to use NY law to calculate interest. federal court looks to: a. scholarship b. rare. though precedent said it would. 3. Stentor sues for breach of contract in 1929. 3. 2. Stentor Electric Mfg. CoA goes to Restatement of Conflicts. Intended to cut down on forum-shopping and ensure in-state uniformity. trends. But. which says to use the law of the place of performance. other. Example: 71
. lex loci delicti. Instead. Certifying the Question 1. Federal court not bound by DC or CoA decisions 2. federal and state courts in same state—on same street— would dispense justice unequally. D. But. They don’t have to guess. B. or only very old precedent. If state law changes between final judgment and appeal. Supreme court precedent in analogous areas. because the case will get to the state supreme court eventually. Lower state courts just follow precedent. Court grants because rights of parties are governed by NY law. The State Supreme Court Predictive Approach: The Erie Guess 1. contracts with Klaxon to use “best efforts” to sell product. Erie and Choice of Law A. v. III. but D could remove if P chose state. 1941: Stentor transfers business from NY to DE. Court must be firmly convinced court would not follow old precedent i. 4. adding $79k to judgment. decide how state supreme court would decide the case..
wait for Congress. CA can made law. c. Why shouldn’t states govern? a. and not the laws of the states. Gov’t money used to pay bills came from treasury. just hasn’t been made yet.a. If Congress hasn’t legislated in those areas. not about extending state law into federal decision-making. We don’t usually care about state laws that apply to gov’t—speed limit b. e. where D lives. Where Congress has not acted affirmatively to regulate an essentially federal matter. If federal law is needed. Problems with Klaxon 1. soldier hit by truck. Not inconsistent with Erie—federal law governs. A. Different than Hinderlider a. but it hasn’t acted—don’t want to intrude or create “surprise” in well-settled field 2. where P lives. Erie was about keeping federal decision-making out of state law. we always have that with laws (see speed limits) f. Court just thinks it shouldn’t apply. Suing Wal-Mart over Fla slip-and-fall.S. b. The Federal Common Law A. a. use place of most significant interest—NY. authority for check had origin in Constitution and federal statute. The Rule of Standard Oil a. same day as Erie: Question of apportionment of interstate stream between two states is a question of “federal common law” upon which neither statutes nor decisions of either state can be conclusive. use place of incident. court may borrow state law. If nobody can recover. there are some areas of law reserved to the federal government. State has no incentive to allow gov’t to recover i. C. Government sues for indemnification—pay while he was hospitalized. 1947: U. Should Court create federal right to indemnification? No. A matter that is essentially federal must be governed by federal law. 72
. Federal fiscal concerns. governed by federal authority. federal courts need to made federal common law to fill the gaps. Standard Oil. AK law says. McCulloch—can’t tax gov’t alone ii.” 3. This is a matter of federal law because it relates to relationship between gov’t and soldier—derived from federal sources. E. V. NY law says. Three choices. But. use place of most significant interest—AK. or incorporate state law by reference. a. as well. Don’t want variation from state to state i. hospital bills. Clearfield: liabilities arising out of forged endorsement of gov’t check must be governed by federal law. Congress knows federal employees get hurt. but doesn’t have to be uniform. 1. That is. Brandeis in Hinderlider. the federal judiciary has the power to address it by creating “federal common law. state must have reason for it iii. Has impeded development of sound body of interstate law 2. 1. Federal courts in different states apply different law—federal forum-shopping IV. 3 Options for Court: create right to recovery. United States v. not dependant on law of state. But. FL law says. B. d.
3. Armco Steel: a state citizen doesn’t get the extra time added to SOL but the diverse citizen does. so it cannot fail on 2072(b). Kimball Foods: Court determines priority of federal agency as creditor in reaching assets is a matter of federal law. but incorporates state law to determine priority. Walker v. Stevens opinion – is the state rule substantive? And even if it isn’t substantive.1. enlarge. Part 2 – for Rule. test of const’l. “Substantive” issues a. Byrd v. 2. Fifteen years after Standard Oil. the suit will come out differently if the plaintiff is a citizen of a different state. Sometmes you can just get around it. Federal Medical Care Recovery Act creates statutory right to indemnity for injuries to soldiers. that’s unfair. Congress does have Constl rights for procedural laws (necessary and proper clause) C. except also take countervailing federal policies into account (right to jury is really important to us) 3. Armco Steel. Plurality – if it passes 2072(a) it is really procedural. What’s the problem? 1. Issues 1. FTCA mostly incorporates state tort law C. ii. FRCP 3 “civil action is commenced by filing a complaint” is not in direct conflict with state law that says commence means to serve process because the FRCP 3 means commence for Federal rules not everywhre. B. Issues that congress has no Constitutional authority to create law on B. So What’s Procedural? 1. Hanna v. what does it mean to abridge. Blue Ridge – same. b. Establish a national bank. What is inequitable administration of the laws in Hanna 1? a. Plumer – i. Action and Reaction 1. No Fed rule on point=apply Hanna 1. No reason Defendant should have to react differently depending on Plaintiff. III. 2. Erie Eerie A. Or. b. Walker v. is it intertwined with substance so as to define the scope of the 73
. Part 1 – for judical practice v. a. Guaranty Trust – Use State law if it affects chance of winning. 1. Different views. Outcomedeterminative test. Common for Congress to abrogate federal common law by statute a. a. but. Const’l they are allowed to do this. in fairness. statutory authority. simply incorporate state law into the body of federal law. a. Which issues are governed by the command of Eerie? 1. 4. anything can do this. When are they really in conflict? a. they are two sides of the same coin. set interest rates according to state law. etc. What about 2072(b). but as a matter of policy we want to keep all the cases the same for forum shopping concerns. b. Shady Grove: i. state rule – look to the twin aims prospectively ii. Flow chart – see notebook paper D.
Burden of Proof rules. Appellate standards of review).right? If you are in the grey area you should go with the state.
. (ex: SOL.