Timing Rules

 Rule 6: timing rules  Rule 45: w/in 100 miles of personal residence or w/in state for
 Notice: 12(b)5- rule 4: 90 days subpoenas
 Rule 7(b)(1): 21 days after being served  Rule 55: if D does not respond within 21 days, clerk or court will enter a
 Rule 11: 21 days after service of sanction to correct pleading default
 Rule 15:  Rule 38: if party has right to jury, may demand a jury by serving written
o Party may amend up to 21 days demand w/in 14 days after last pleading
o Any required response must be w/in time to respond to org.  Rule 48: 6-12 jurors, verdict must be unanimous
pleading or w/in 14 days of service  Rule 51: lawyer must object to jury instruction before they are given to
 Rule 14: 14 days after D serves answer for Third Party Complaint the jury
 Rule 26: parties make initial disclosures within 14 days of conference  Rule 56: Summary Judgment can be filed w/in 30 days after discovery
for discovery  Rule 50: Renewed directed verdict, 28 days after jury verdict
 Rule 33: interrogatories have 30 days to respond, no more than 25 can  Rule 29: Motion for a new trial, no later than 28 days after entry of
be asked judgment
 Rule 34: party must respond w/in 30 days for a request of production  Appeals: after judgment is final, must be filed w/in 30 days
 Rule 36: party must respond w/in 30 days, if not matter is admitted  Rule 62: 14 days after the judgment or verdict
 Rule 65: good for 14 day
Jurisdiction: Lawsuit can only commence if there is properly established: SMJ, PJ and Venue

 Familiarize yourself with Rule 6 for how timing works

 Rule 12: 21 days to answer a complaint (from service)
 60 days if service has been waived/after request for waiver has been sent (90 days if out of country)
 21 days to serve a reply to an answer
 Motions normally change response times to 14 days after court’s decision on motion
 Rule 15: May amend 21 days after service of any pleading (initial or responsive)
 Rule 11: 21 days to fix a Rule 11 violation

Personal Jurisdiction
Three types of personal jurisdiction:
Determined at time suit is filed. Make a special appearance at beginning to contest PJ
 In personam- courts power over person
 In Rem- power court has over property within borders, attach property at beginning, also status suits (divorce).
 Quasi In Rem- must have contacts other than just the land when COA doesn’t concern land.
 All must follow International Shoe test (even QIR by Shaffer).
How to get PJ
Traditional Methods
 Domicile- Milliken: “domicile is sufficient for bringing an absent D within the reach of the states jx”. Only 1 place, determined substantively and objectively
 Presence- Pennoyer- Service in a state is valid service. Burnham affirmed.
 Consent- Hess - example of implied consent on roads of a state. (Specific jx).
Minimum Contracts
 Minimum Contacts + Doesn’t offend traditional notions of “fair play or substantial justice” Int Shoe. Minimum contacts are when a D personally avails himself to
the benefits of the forum state.
 States can only use “minimum contacts test” whenever they have enacted a statute authorizing jx. Must satisfy both STATE LONG ARM STAT and DUE PROCESS
CLAUSE of 14th Amend of Const. (for reasonableness). Ark long arm statute Ark Code § 16-4-101 allows PJ to the maximum extent of due process. Ways to determine
if contacts satisfy due process:
o General Jx: D has continuous and systematic contacts with the forum, D can be sued in forum regardless of the claim is related. Those activities are enough to
make it fair and reasonable to subject a corporation to proceedings in personam in that state GM or Home depot Perkins
o Specific Jx- D may be sued in forum because claim is related to D’s activities in forum. Can only have been in the state once but sued there. (Example, a car
wreck in a state)
 State has interest in providing citizen w means of redress McGee
o If contacts are both continuous and systematic + related = slam dunk
Other minimum contracts considerations.
o Stream of commerce: theory 1: put product in stream + awareness is enough for PJ. 2: product in stream + additional conduct (mere awareness not enough)
Asahi. Additional conduct is designing a product for the market in the forum state, advertising in the forum state, establishing channels for providing regular
advice to customers in the forum state, marketing a product through a distributor that agrees to serve as the sales agent in the forum state. Asahi. Perkins confirms
theory 2 – must also personally avail to forum state, not just awareness
o Reasonableness- unilateral activity of P alone cannot satisfy the requirement of contact with the forum state. D must personally avail himself to the privileges of
conducting business in forum and invoking benefits and protects of law. Hanson and WWVW
 Personally avail by: ongoing business relationship there, receiving benefits of law, communication there BK - A contract itself may not be enough, there must
be K + analysis of negotiations, future consequences, foreseeability.
Factors to test for reasonableness from Asahi:
 Burden on D
 P’s interest in obtaining relief
 Forum’s interest in justice ALL ASAHI
o Foreseeability- must reasonably foresee being hailed into court in the forum – WWVW
o Territorial Jx – flying over a state counts as “in the state” for PJ. Valid jx.
Subject Matter Jurisdiction
Subject Matter Jurisdiction- power of a court to hear a matter as required by Art III sec II of U.S. Const. Ct has sua sponte duty to establish jx. Capron. State courts are courts of
general jurisdiction. Federal courts have limited jurisdiction—they can hear a case only if SMJ has been authorized by the U.S. Constitution and a statute passed by congress.
Determined at time of filing.
 Federal Question- Art III Sec II and § 1331 authorized federal courts to hear suits concerning the U.S. Constitution, a federal statute or treaties of the US. Federal Q
must be on the face of the well-pleaded complaint rather than as a defense. A federal question cannot be raised as an anticipated defense, it must be expressly set out in
the P’s COA. Louisville & Nashville R. Co. v. Mottley.
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  Diversity Jurisdiction- exists where (1) complete diversity of citizenship and (2) an amount in controversy >75k. This is authorized by Art III sec II and § 1332.
o (1) complete diversity of citizenship: plaintiff and defendant are citizens of different states § 1332
 Citizen: wherever the person is domiciled evidenced by where a person calls home and intends to stay or objectively, where they vote, reside, file
taxes, etc.
 Diverse at time FILED, not when incident happened
 Citizenship = Domicile. Lundquist. If a person moves, citizenship is where person was domiciled at the time suit was FILED and continues for
purposes of the lawsuit.
 A change of domicile may only be effected by (a) taking up a new residence in a different domicile and (b) the intention to remain there. Mas v.
Perry.
 Alienage jx is when one party is citizen of another country (unless they’re lawfully permitted for PERMENANT residence, then they are a
resident of the US State, and not their country, violating complete diversity). Authorized under Art III sec III and §1332 (2).
 Two non-citizens of the US may not sue in US court.
 Corporation is a citizen both the state where they are incorporated and their principle place of business (nerve center, HQ, can only have one
Hertz) §1332(c)(1)
 If it’s a LLC, partnerships and joint ventures, courts have reasoned that they are citizens of the state of each and every one of their members.
Zambelli.
 Must have complete diversity= everyone on P side is different from everyone on D side Strawbridge
o (2) Amount in controversy: must exceed $75K based on good-faith claims in the complaint
 “Sum made by plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less
than the jurisdictional amount to justify dismissal” Red Cab.
 Don’t be afraid to put $ amount on injunction/privacy invasion etc.
 Punitive damages are allowed to count toward the amount in controversy depending on state law. For AR, they are if alcohol or drugs are
involved while driving.
 Multiple plaintiff’s claims cannot be combined to reach the minimum amount in controversy Snyder.
 A SINGLE plaintiff CAN aggregate all of their claims to exceed $75,000.
 Exxon- if it’s a suit where there’s several plaintiffs, ONLY ONE’s needs to exceed $75,000 and every other plaintiff can come along in the suit.
(There can’t be any other jurisdictional issues. Ex: there must be complete diversity)
 Amt in controversy determined when complaint is filed by P.
o EXCEPTIONS: Even if there is diversity between spouses, federal courts don’t hear divorce, alimony, property division and child custody (State court more
properly suited to hear these). Ankerbrandt. They WILL hear torts between diverse spouse though. Also won’t hear probate matters. Marshall.
o Interpleader: if the case is an interpleader action (like an insurance co or bank that has 2 claimants seeking the same fund), under §1335, the amount in
controversy is only $500 and there only needs to be minimal diversity (diversity between at least 2 claimants). Under Rule 22 interpleader, SMJ is the same.
o Supplemental (used to be called ancillary)- §1367 allows any claim to come into federal court as long as it is so related to a claim over which the district
courts have original jurisdiction.
 1st claim can be Federal Q or Diversity you can bring in extra claims or parties as long as they are SO RELATED.
 Aggregating claims – one plaintiff can aggregate all their claims together (related or unrelated) and if they add up to over $75K and parties are
diverse, that is pure diversity jurisdiction. AND If one parties claims are >75K, other parties w lesser claims can be added because of Exxon
 Claim is related if it comes from a common nucleus of operative facts. Gibbs.
 1367 (c) Power to hear suit is established on the pleadings but discretion can be determined throughout the suit by the judge. Gibbs. Factors a
judge uses to decide: judicial economy (makes sense to try things in 1 lawsuit), fairness and convenience, state issue at the heart of the suit (throw
out), if federal claim is weak, if it would confuse the jury.
o Removal- entirely statutory, not in constitution. OPTIONAL by D. Must be removed from state court within 21 days or the right to remove is gone. Purpose:
to allow a D who might otherwise be prejudiced by being in a state court to remove it to federal court.
 §1441(a): A defendant has the statutory right to remove a case to federal court if that case could have originally been brought there. “Civil action
brought in a state court of which the district courts of the United States have original jurisdiction may be removed by the defendant. (Is its federal
Q or is there Diversity? (or is party a foreign state))
 Complete diversity is required. (Everyone on P side must be different than D side.) Strawbridge
 P can never remove, only D. Shamrock
 D cannot remove for diversity of citizenship if suit was brought in their home state (because the point is to protect D from bias and the state
where they’re a citizen will, if anything, help the D)
 Foreign state (“Iran”) can ALWAYS remove, regardless of amt. in controversy §1441(d)
 If claim is federal Q, you can ALWAYS removed by D
 If claim is federal Q + another unrelated claim, §1441(c) the entire claim gets removed to federal court and then the claims that were unrelated are
severed and remanded to state court.
o Federal courts also have jx over admiralty, maritime, bankruptcy and interpleader claims. See § 1333-1335
Joinder of Claims and Parties
Still must have SMJ
 Rule 18 permits the claimant to join all claims the claimant may have against a defendant regardless of transactional relatedness. M.K. v. Tenet. Purpose of joinder is
judicial economy. Rainbow. However, Rule 82- this does not expand the courts jurisdiction (still must have SMJ over each claim).
o Res Judicata requires suits that derive from same facts and have same theory for COA to be brought together. See Res Judicata. (ex: negligence resulting in
personal damages + negligence resulting in property damage and same incident)
o Review: If federal Q, claim can always go to federal court. Otherwise, claims must add up (aggregate claims of a single P) to >75K and parties are diverse
for joinder of several claims to go to federal court.
o Problems: Jury confusion, delay. Judge can separate claims for convenience Rule 42.

Joinder of Claims. Rule 13

Counterclaims- a counterclaim is a party’s request for affirmative relief against an opposing party
 Compulsory Counterclaim- claims that arise out of the same transaction or occurrence as the original claim. (RELATED) MUST be brought or they are waived
forever. 13(a).
o Logical Relationship Test- if there is a logical relationship between the two claims, then they come from the same transaction. Heyward-Robinson.
o Claim doesn’t need a certain $ because it is “so related” and federal court has jurisdiction from supplemental jx §1367
o If party tries to bring suit later with a claim that is so related to the original claim, the opposing attorney can argue that it was a compulsory counterclaim and
is lost. (even if they try and bring claim in state court)
 Permissive counterclaim- is a claim that does NOT arise from same transaction or occurrence as the original claim. (NOT RELATED) MAY be brought 13(b), but
isn’t required (could be brought in separate suit)
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 o Rule 82 but there need be SMJ over the claim (federal Q or claim >75K). A permissive claim is NOT “so related” to the original claim so it can NOT joined
using supplemental jx §1367.
 Counterclaims can exceed original claim or be a different remedy (P files suit seeking $85K, D can assert counterclaim for $250K or an injunction, etc.)
Cross Claim- claim against a co-party. (Like one defendant making a claim against another defendant.)
 Cross claim MAY be brought as long as it arises out of the same transaction or occurrence as the original action or counterclaim 13(g).
o Claim doesn’t need a certain $ because it is “so related” and federal court has jurisdiction from supplemental jx §1367
o If both D’s are from same state, one D can still file a cross claim against other D if its from same transaction.
o But note: a cross claim by D1 against D2 can trigger D2’s obligation to assert compulsory counter claims. RMG v. Atlantis.
Joinder of Parties: Rule 20
 For parties to be joined under Rule 20(a)
o The claims must relate to or arise out of the same transaction or occurrence or same series or transactions or occurrences (ex: bus accident)
o A question of law or fact common to all the parties must arise in the action. (ex: negligence)
 Logical Relationship Test- if there is a logical relationship between claims, then they come from the same transaction. MK v. Tenant
 At least one persons claim needs to meet amount in controversy 75K. Exxon. Or federal Q claim. If one meets amount, other plaintiffs claims
may be supplemented using §1367
 Must still be complete diversity on plaintiff and defendant sides. Strawbridge.
 Doesn’t matter if P’s seek different remedies—only that they have common series of transactions & common Q of law or fact. 20(a).
Adding A Third Party/ Impleader- Rule 14
 D MAY bring in non-party who may be liable for claim against D within 14 days of answer by filing a third-party complaint/impleader. Rule 14(a). (not required—D
can sue 3rd party later if they would like to)
o There is jurisdiction if the claim is “so related” to original claim under supplemental jurisdiction §1367 (doesn’t need a certain $ amount in controversy)
o Or there is jurisdiction, if claim is NOT “so related”, it needs independent jurisdictional basis to get in (federal Q or diversity). They can bring as many
claims as they have against the party. Rule 18. Court just still must have jurisdiction. Rule 82.
o (A v. B… B brings in C so its now A v. B v. C) B becomes “Third party P” and C becomes “Third-Party D”). Think of Asahi.
o Defendant bringing in non-party needs court approval. JUDGE HAS DISCRETION TO ALLOW IMPLEADER. The judge will weigh these factors in
considering whether to grant approval:
 Whether the movant deliberately delayed or was derelict in filing the motion; whether impleading would unduly delay or complicate the trail,
whether impleading would prejudice the third-party defendant, and whether the third-party complaint state a claim upon which relief can be
granted. Too.
o Continuing Jurisdiction: Even if suit between A v. B is settled, suit between B v. C continues because when C (third party defendant) is impleaded, they
become B’s opponent. Asahi.
 Third Party D: MUST raise any 12b motions against 3rd party P (cb), MUST assert any compulsory counterclaim (same transaction or occurrence) against 3rd party
P (cb), MAY assert any permissive counterclaim (not same transaction) against 3rd party P (BUT is there separate SMJ, rule 18) (cb). MAY assert against the
Plaintiff any claim arising out of the transaction or occurrence of the plaintiff’s claim. 14(a)(2)(A-D) (remember that for permissive counterclaims, there must be
independent jurisdictional basis) Kroger.
 Plaintiff: MAY assert any claim against the third-party D (ac) that arises out of same transaction or occurrence 14(a)(3). Third party D MUST then raise any 12(b)
motions or compulsory counterclaims in response and MAY add permissive counterclaims in response (ca).
o If P is from AR, 3rd party P/Defendant is from OK, and 3rd party Defendant is from AR, a Plaintiff’s claim against the 3rd party D cannot stand because its
AR v. AR and §1367(b) does NOT allow the original plaintiff to make a claim against a 3rd party defendant if they are from the same state and the original
suit is based on diversity. (If diversity, must still honor complete diversity.)
o If the suit is based on a Federal Q, you don’t have to look at §1367(b) and plaintiff can make claims against 3rd party D from same state, no problem.
o TIP: “MUST” means that if they don’t raise the claim, it is lost forever. “MAY” means they could bring it in a different suit later if they choose.
o 3rd party can add another nonparty (a v. b v. c v. d)
Judges Tools with Joinder
 Sever Claims Rule 21, Sever parties if misjoinder Rule 21, consolidate claims together Rule 42, order separate trials Rule 42.
 May choose to sever if a 3rd party D asserts a counterclaim against 3rd party P (CB) that is unrelated but permissive because it has independent jurisdiction. (Ex:
breach of contract suit. A v. B. B impleads C. C files a counterclaim for $82,000 for false imprisonment against B. That is permissive and can stand but judge may
choose to sever because its unrelated.)
Who brings the suit Rule 17?
 Party who should bring the suit is the real party at interest Rule 17(a) Green. (ex: Paula gets in car wreck and insurance co gives her $800 to repair. Insurance Co
should bring suit against other driver because THEY are the real party at interest) (possible that BOTH are real parties at interest) (Green also allows a correction of
mistakes under a reasonable amount of time.)
 Capacity to sue - 17(c) says look to state law – such as if Paula wants to bring suit but is 17. In Arkansas, age of majority is 18 and a guardian ad liem or
parent/guardian would need to bring suit on her behalf (unless she is emancipated).
 Death during suit - court can substitute party who dies during suit (like for an executor) Rule 25(d). (UNLESS the COA renders the case moot—like if case was for
slander)
RULE 19- REQUIRED Joinder of Parties
 19(a)(1) a party is an “indispensible party” when, in that person’s absence, the court cannot accord complete relief among the existing parties or a person claims an
interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may (1) impair their ability to protect the interest (2)
leave an existing party subject to risk of inconsistent obligations.
 This is raised by defendant as 12(b)(7) motion- failure to join party under Rule 19
 19(a)(2) the court can order a person be joined.
 If joinder of an indispensible party is not feasible, the judge considers: (1) the extent to which a judgment rendered in the person’s absence might prejudice that person
or existing parties (2) the extent to which prejudice could be lessened (3) whether judgment rendered in the persons absence would be adequate (4) whether the plaintiff
would receive adequate remedy if the action were dismissed for nonjoinder.
o Ex: medical malpractice during surgery. Plaintiff sues manufacturer of medical device and not surgeon. Manufacturer should file 12(b)(7) motion for failure
to join a party under rule 19 because surgeon is an indispensible party.
INTERVENTION of parties – 24(a)(2) - 3 requirements
1. The intervening party claims an interest relating to the property or transaction that is the subject of the action
2. Disposing of the action may, as a practical matter, impair or impede the intervening party’s ability to protect its interest.
3. An existing party is not already adequately representing that interest.
 Passenger of a car wreck wishes to intervene in a suit and claim $95,000. Intervention IS permitted under 24(b)(1)(b) because the action shares with the main
action a common question of law in claiming negligence.
 The judge would need to consider if that imposes a delay on the suit and if it is prejudicial to the original parties. Intervention is permitted but that doesn’t
mean the judge will allow it.

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  Amount for intervening party is fine to be under $75K because of Exxon. BUT still must be complete jurisdiction if it’s a diversity suit. Strawbridge.
Interpleader
 Interpleader - “is an equitable device that enables a party holding a fund to compel asserting conflicting claims to that fund to adjudicate their rights to the fund in a
single action”. NJ Sports Productions.
 Used where two or more claimants have a stake in a claim, which may cause the stakeholder to be doubly liable if both are successful. Interpleader allows him to join
all claimants into suit to allow the court to allocate the claim accordingly. (Insurance claim or Bank)
 Why a difference: Statutory interpleader can wipe out complete diversity/amount in controversy requirements because Strawbridge interprets a STATUTE (§1332) not
the constitution. However, Rule 22 requires complete diversity/amount in controversy because a RULE cannot change a statute, so it follows §1332.
 Statutory interpleader only requires minimal diversity. State Farms.
STATUTORY INTERPLEADER (§ 1335) RULE 22 INTERPLEADER (literally the same criteria as normal SMJ)
(§1391 for venue) (§ 1332 is complete diversity)
Minimal amount in controversy ($500) Amount in controversy is $75K
Minimal diversity of citizenship - at least two claimants diverse from each other. Complete diversity between the stakeholder and the claimants (like normal
Strawbridge)
Venue is proper where any claimant lives Must use usual diversity venue (under venue rules)
Nationwide service of process Rule 4 service
Enjoining other cases is authorized Injunction is not expressly authorized
Stake deposited or bond required Bond not required
If it does not work under rule 22 or statute 1335 then it goes to state court.
THIRD PARTY CLAIMS (Rule 14a)
Called impleader in many jurisdictions  action for contribution, indemnity, etc
 Rule doesn’t specifically say T&O, but all 3rd party claims must emanate from the underlying claim  logical relationship, series of
T&Os, etc
 Unlike counterclaim and cross-claim, in effect brings a new action
o Bringing in a new party raises all traditional in personam jd issues
o If plaintiff can’t get supplemental jd, then has to take claim against 3 rd party to state court due to §1367(b)
 Owen v. Kroger: If you wouldn’t allow plaintiff to sue Owen directly, shouldn’t allow her to do that indirectly by
virtue of the 3rd party defense practice procedure

Trilogy Three (briefly):

INTERPLEADER (Rule 22)
Used by a stakeholder of property who has multiple parties claiming it
 Used because res judicata doesn’t prohibit subsequent claimants to sue for same property
 Proscribed in both a federal statute and a federal rule 
o §1357: $500 requirement, nationwide jurisdiction (maybe global), creates form of federal jd that only requires minimal
diversity of citizenship
o Rule 22: $75K requirement, no federal national jurisdiction (must use long-arms), requires complete diversity of citizenship

 IMpleader = to bring action as a third-party plaintiff or third- party defendant

o Party A defends against a claim. Party B is not currently in the suit but if A is liable, B might be liable to A. So A impleads B
(A is a third party plaintiff making a claim against B, a third party defendant)
o Ex  B rear ended A, who then rear ended C. C sues A and not B. If A is found liable and has to pay damages, B could be
liable to A for those damages. So A impleads B, making the claim that B should be liable too.
 INTERpleader = to bring action to settle dispute between two parties over property (ex. Insurance provider to settle dispute owner
who owns the insured property)
o There's a stakeholder who has no interest in the outcome facing claims from multiple parties, so they interplead the parties,
forcing them to make claims against one another.
o Ex  There are multiple claims on one person's life insurance. The insurance company is going to pay, they have no interest
in the outcome, they just need to know who to pay. Insurance company interpleads the claimants and the court will figure out
who gets the insurance.
 INTERVENEr = a non-party wants to be joined to original claim already brought
o What about joinder? Not the same! Plaintiffs and defendants may use joinder to add a person to the lawsuit. Non-parties may
use intervention to become a party to the action. It’s about WHO is adding a person.

Venue
§ 1391- Venue is an issue of geography, convenience and statutory interpretation. Not in the constitution.
 Civil action may be brought in:
o 1391(b)(1) Judicial district in which ANY D resides if all D are residents of the same state.
o 1391(b)(2) Judicial district where a substantial part of the events or omissions giving rise to the claim occurred.
o 1391(b)(3) If there is no district in which an action can otherwise be brought, any judicial district in which any D is subject the courts personal jx.
 Residency for venue purposes
o Natural persons are deemed to reside where they’re domiciled for venue. §1391(c)(1)

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 o Entity with capacity to sue/be sued (corporation) is domiciled in any judicial district in which such D is subject to personal jx with respect to the action
AND if they are P, only where they maintain principle place of business. §1391(c)(2)
o Alienage JX: D not a resident of the US may be sued in ANY judicial district §1391(c)(3)
o §1391(d) When a corporation is in a state with multiple districts:
 Corporation is deemed to reside in ANY district that in the state within which its contacts would be sufficient to subject it to personal jurisdiction
IF that district were its own separate state. If there is no district that the corporation is deemed to reside in, it is wherever there are the most
significant contacts. (If you have minimum contacts in the Eastern Dist. of AR, you are deemed to reside there. Treat districts as their own states.
 D must object to venue using 12(b)(3) motion for improper venue within 21 days of being served (12(a)(1)(C)) or its lost forever – motion to dismiss
 Motion to transfer under §1404: use if venue is proper but you want to change venue  can only move to another federal district court
 Motion to transfer or motion to dismiss under §1406: If venue is in the wrong district, the court shall dismiss the case or transfer it to an appropriate venue. (Like if it
should be brought in another country entirely, this would be the correct motion) (Kara & Kyle, Mexico)
o Can dismiss under the doctrine of Forum non Conveniens- argues that although venue is proper under the statute, it is inconvenient. Piper Aircraft & Gulf
Oil. Factors to consider: private interest of the litigant, relative ease of access to sources of proof, availability of compulsory process for attendance of
unwilling witnesses, cost of obtaining attendance of witnesses, possibility of view of the premises, any other practical problem (language? Law?) Doctrine
for foreign suit (Mexico).
o Administrative difficulties follows for courts when litigation is piled up in congested centers instead of being handled by its origin. There is a local interest
in having controversies decided at home. Gulf Oil Corp v. Gilbert. Public Interest.
 If Forum Selection Clause is prima facie valid and should be enforced unless enforcement is shown by the resisting party to be unreasonable under the circumstances.
It is unreasonable if (1) it was the result of fraud or overreaching (2) trial in the forum would be gravely difficult and inconvenient for the complaining party and he
would practically be deprived of his day in court or (3) enforcement would contravene a strong public policy of the forum in which the suit is brought.
o Reasonable if cost savings, interest in limiting forum by party providing the clause, eliminating confusion of where suits can be filed. Does not matter if
sympathetic plaintiff cannot financially afford to go to the forum. Carnival.
Notice
Due Process requires power + notice + hearing
Notice must be reasonably calculated under all circumstances to apprise interested parties of the action and give them an opportunity to object Mullane
Personal Service in Federal Ct. Rule 4
 Federal service of process must satisfy both due process (reasonableness) and the FRCP. (Rule 4)
 Due Pro. Standard: Service must be reasonably calculated to appraise the parties of pendency of action & afford them the opportunity to be heard –Mullane. This is
case by case analysis depending on the “particularities and peculiarities of the case.”
1. Lawsuit is commenced when complaint is filed with the court
2. By whom: Any person who is at least 18 years old and not party to a suit. Marshal or someone specifically appointed by the court can serve. (not the plaintiff or
attorneys) 4(c)(2)
3. How to serve- Traditional Means: 4(e)(2)(a,b, and c)
a. Personal service (handed to defendant) is the gold standard. It always works!! If service is done in any other way, it must actually try to reach the defendant.
Jones.
b. Leave summons at D’s dwelling place with someone of suitable age (mature) that resides there. Person you leave it with must actually live there (not the
plumber). Brennan.
c. To an authorized agent. (Mark Martin) (Nat’l Equip Rental- valid appointed agent) Contracts that appoint an agent are usually valid as a freedom of contract
if agent acts promptly and responsibly. National Equipment.
d. Can use state methods such as by mail (not in FRCP):
i. Ordinary mail
ii. Certified mail (must be signed by D)
iii. Can use commercial delivery service (FedEx)
4. If Defendant is not served within 90 days that lawsuit is filed (complaint at courthouse), then lawsuit is dismissed without prejudice against defendant. 4(m)
5. Can leave at door if D is avoiding, if reasonable (substantial compliance) If D tries to evade service, it is usually sufficient to leave the papers in the D’s presence or
physically proximity. Sufficient service may be found where there is a good faith effort to comply with FRCP 4(e)(2) Travelers Casulty
6. Affidavit to the court is required with proof of service after
 Substantial Compliance service must substantially comply with rules. (Arkansas is strictly comply) General proximity is fine. Such as if D is resistant, leaving it on
doorstep is substantial compliance. Strict compliance is EXACTLY what rule says.) (Brennan- needs to be dwelling place of D)
 Publication is enough if D is unknown. If address known, publication is not enough, but if suit is a class action, only reaching most litigants is fine.
 Service can’t be by fraud Tinkle
Serving a corporation-
o Can serve in ANY way set out in 4(e) (personal service, someone at mature at dwelling place or agent) OR
o Delivering a complaint to an officer or agent 4(h)(1)(B). P’s method of service of the summons and complaint was indeed “reasonably calculated” to alert
defendant to initiation of the suit. Insurance Co. of N. America. Rule 4(h) does not require service be made solely on a restricted class of formally titled
officials, but rather permits service to be made upon a representative so integrated with the organization that he will know what to do with the papers.
Insurance Co. of N. America.

Hearing
 Must be heard in a meaningful time in a meaningful manner. Fuentes.

Law in Federal Courts

Erie doctrine says what law should be applied for STATE issues in FEDERAL court—state law or federal law?
 Erie Doctrine: when a federal court is deciding a state law issue or claim, STATE law will be applied for substantive matters and FEDERAL law for procedural
matters.
Step 1: Is the case being decided by a federal court? If yes, move to 2
Step 2: Is the federal court deciding a state-law claim? (usually because of diversity, removal or supplemental suits) if
yes, move to 3.
Step 3: Is the issue is “outcome determinative”, meaning the plaintiff would choose one forum over another because
it would alter the outcome of the lawsuit, then it is substantive for purposes of Erie and state law must be
applied. If NOT outcome determinative, the issue is procedural, and the federal court will applied.

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How Erie came about:
 Judicial Act of 1789, which is now §1652 says, except where the law of the Constitution or treaties of the U.S. or Acts of Congress provide, the laws of several states
shall be regarded as rules of decision in civil actions in federal courts.
 Swift said that “the laws of several states” meant federal courts were bound to follow state STATUTES, but not state common law. This was OVERTURNED by
Erie…
 Erie said: “the laws of several states” included state common law (not just statutes). Erie said there is no such thing as “federal common law” and there is no
transcendental body of general law. Federal courts are to follow state law whether that be from their legislature or courts. Erie.
o Why Erie overturned Swift: evidence that the Judicial Act of 1789 actually intended to include state common law, by allowing the federal courts to make up
“federal common law,” it allowed federal courts to discriminate against state citizens
How do you know what is substantive and what is procedural?
 York “outcome determinative" test, federal courts deciding state-law claims should strive to reach the same outcomes that state courts would. This prevents litigants
from forum shopping (wont go to federal court to get a better outcome because they will KNOW the substantive matter of their suit will be decided the same way).
o Ex of “procedural” where fed law is used: time periods to serve someone with a summons
o Ex of “substantive” state law: rules regarding the burden of proof that a party has, a state law for contributory negligence, a law for statute of limitations (**
remember, if it affects the outcome, it is substantive)
 Outcome test is from perspective of the plaintiff: This is the “modified Outcome Determinative” Test – Hanna 1 – says federal courts are only concerned with
differences in state and federal law that would influence forum choice of a litigant at the beginning of a suit. (You wouldn’t CHOOSE a forum, either federal or state, bc
they have some good service of process laws, so federal procedure can be used there). Federal courts can follow federal procedural law if it would not persuade a
litigant to choose federal court for that difference.
 This is so because the FRCP were created by courts as a power granted by Congress. They are 100% constitutional and so if the FRCP apply, they govern the situation.
Hanna 2.
WHY use federal procedural law?
 (1) State has little interest in procedure (its only a policy/form/mode) (2) There are “affirmative countervailing considerations” in using FRCP and (3) As far as we
know, this doesn’t affect the outcome (everything effects the outcome to a certain extent but there is countervailing considerations in using FRCP). Byrd.
o If no state precedent exists, the federal judge must make an Erie Prediction: predict how the state court would decide the case when there is a lack of precedent. This
won’t be binding on that state. Webber
What law should be applied when the law of several states is involved? Horizontal conflicts
 Apply the law where the claim arose- lex loci delecti
 Public policy is an exception to lex Loci Delecti Paul v. National Life.
 Rsmts center of gravity test- in the choice of law questions, the law of the jdx with the most significant relationship to the transaction or events applies.
 Professor Leflar’s choice influencing considerations approach: (1) predictability of results (2) maintenance of interstate or international order (3) simplification of the
judicial task (4) advancement of forum’s governmental interests (5) application of better rule of law

In the context of the Federal Rules of Civil Procedure (FRCP), the distinction between procedural and substantive law is crucial for determining which law should apply in
federal court when there is a conflict between federal and state law. Here's an explanation of procedural and substantive in this context:
1. Procedural Law
 Definition: Procedural law concerns the rules and methods used to enforce legal rights and obligations. It outlines the processes that must be followed during
litigation, including how a lawsuit is filed, how evidence is presented, and how court decisions are made.
 Examples in the Federal Rules of Civil Procedure:
o Rule 4: Service of Process (how a defendant is notified of a lawsuit).
o Rule 56: Summary Judgment (when and how a court can rule on a case without a full trial).
o Rule 12: Motions to Dismiss (the process for asking the court to dismiss a case).
o Rule 26: Discovery (rules governing the exchange of evidence and information between parties).
 Why It’s Procedural: These rules do not concern the actual subject matter or rights at issue in a case, but instead focus on how the legal process is conducted.
2. Substantive Law
 Definition: Substantive law concerns the rights and duties of the parties involved in a case. It deals with the underlying legal issues and determines who is legally
entitled to what. Substantive law answers the question of what the law is on the merits of a case.
 Examples of substantive issues might include:
o Contract law (e.g., whether a contract is valid).
o Tort law (e.g., whether a person is liable for negligence).
o Property law (e.g., whether a party holds legal title to property).
o State law often provides the substantive rules in diversity cases, but the federal courts may apply substantive law under the Erie Doctrine if no federal rule
governs the issue.
The Erie Doctrine and the Distinction
 Erie Railroad Co. v. Tompkins (1938): This landmark case established the Erie Doctrine, which requires federal courts to apply state substantive law in diversity
cases, even though they follow federal procedural rules.
o If there is a conflict between state substantive law and federal procedural law, the federal court must apply the state's substantive law.
o If the issue is procedural, then federal procedural rules generally apply, even if there is a conflicting state law.
Key Points
 Procedural laws are concerned with how a lawsuit is conducted (rules for filing, serving, presenting evidence, and procedural motions).
 Substantive laws are concerned with the rights and duties of the parties involved (e.g., who wins a case based on the legal claims and defenses).
 Under the Erie Doctrine, in diversity cases, federal courts will apply state substantive law but use federal procedural rules unless there is a compelling reason to do
otherwise.
Examples to Illustrate the Difference:
1. Example 1 (Procedural):
o A federal court might apply Federal Rule 56 (Summary Judgment) to determine whether a case should be dismissed without a trial, even if state law has a
different rule for summary judgment.
2. Example 2 (Substantive):
o A federal court in a diversity case might apply state law to determine whether a party was negligent or whether a contract is enforceable because this is a
substantive issue under the state's law.
Summary
 Procedural: Rules of court procedure, such as how lawsuits are filed, how evidence is handled, and how trials are conducted.
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  Substantive: The actual rights and obligations of the parties, such as whether a defendant is liable for damages or whether a contract is valid.
This distinction is crucial under the Erie Doctrine, as federal courts must balance applying federal procedural rules with state substantive law in cases involving diversity
jurisdiction.

Pleadings
 Pleading = complaint or an answer
 Purposes of pleading: (1) Provide notice to the other side (This is why it is called “notice pleading”) (2) Identify baseless claims and eliminate – Rule 11 frivolous suits
(3) Set forth the party’s view of the facts – Rule 26 (discovery) and (4) narrow the issues.
 Pleadings allowed: complaint, answer, answer to counterclaim, answer to cross claim, third party complaint, answer to third party complaint, if court ordered: a reply
to an answer. Rule 7
 Rule 8(a) - What a pleading requires: A pleading that states a claim for relief must contain:
o 8(a)(1) a short, plain statement on ground for courts jurisdiction
o 8(a)(2) claim showing the pleader is entitled to relief and [all ELEMENTS of a claim must be alleged]
o 8(a)(3) demand for relief sought [Red Cab - plaintiffs claim is controlling if made in good faith].
 Fraud/mistake claim must: “state with particularity the circumstances constituting fraud or mistake” Rule 9(b) More detail is needed for fraud. Denny.
 Each allegation should be simple, concise and direct. No technical form is required. 8(d)(1)
 “Pleadings must be construed so as to do justice” 8(e) The court does not want to throw out a claim on a technicality and deprive a person of their day in court.
Dioguardi. The “Set Facts Test”: the complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set
facts in support of the claim. Conley v. Gibson.
 No evidence is needed in a pleading. That is what discovery is for.
 8(d) – pleadings can set out claims/defenses alternatively or hypothetically. A party may state as many separate claims or defenses as it has, regardless of consistency
(claims can contradict each other! Pleading in the alternative)
 Look at caption, signature, rule 8 requirements.
Other pleading requirements:
 Pleadings MUST be served on all parties (on their attorneys if they have one Rule 5(b)(1)). Can be served in several ways: SEE Rule 5(b) THEN must the be filed with
clerk or judge “within reasonable time after service.” Rule 5 (d)(112(f).
 Pleadings MUST have a caption (court name, title, file #, designation of what pleading it is, name parties), numbered paragraphs, statements/documents adopted by
reference (like the K in a breach of K suit) Rule 10
 CAN’T say minors name, just initials 5.2(a)(3)
D’s ANSWER: D must (1) admit, (2) deny, or (3) say not enough info to answer. They may assert as many separate
claims or defenses as it has regardless of consistency. Rule 8
 D must answer in 21 days of being served with the complaint. Rule 12(a)(1)(a) If D waives service, they get more time (friendly defendant). Motions also may allow
more time. 12(a)(4)
 The burden is on the DEFENDANT to bring up affirmative defenses in the pleadings. Ingraham v. U.S.
 Can file affirmative defenses. Ex: File 8(c) affirmative defense for res judicata. If it is not brought up it is gone.

Rule 7 ( complaints, crossclaims and answers

Rule 8- content of pleadings (complaints, denials, defenses
Rule 9- heightened pleading
Rule 10- lays out form of pleadings; Caption (form 1)
Rule 11-sanctions for attorneys
Rule 12- Defense and motions in response to a complaint
Rule 15- Amended and supplemental pleadings
Pleadings: set of factual allegations that establish cause of action
- Fed SMJ is limited, must be stated in complaint
- customary to have paragraph asserting proper venue
- wherefore clause-demand for relief stated (exceeding $75,000)
- if any elements are missing- FILE 12 (b) (6) motion to dismiss

Amended Pleadings:
 P can amend their pleading without permission of court ONCE within 21 days after serving it or within 21 days of the answer from the D Rule 15(a)(1) (a-b).
 In all other cases, P needs the D’s permission OR the courts permission. 15(b)
o If short notice, D probably would argue it would be prejudicial to their client to allow the P to amend. P would argue it is not prejudicial such as if D had
actual knowledge of mistake or thing left out.
 If an issue is tried that wasn’t raised in the pleadings and no one objects, it is “tried by consent” and you can treat it as if it was raised in the pleadings. You can also
amend after the trial to conform the evidence and to raise an un-pleaded issue. 15(b)(2)
 An amendment “relates back” (treat it as if it was filed WITH the original complaint) when:
o 15(c)(1)(a): a law allows it
o 15(c)(1)(b): it asserts a claim/defense that arose from conduct, transaction or occurrence set out in the original pleading
o 15(c)(1)(c): it changes the party or naming of the party must MEET ALL 4:
 (1) satisfy 15(c)(1)(b) - relate to original claim
 (2) be within 90 days for serving summons and complaint- time period for Rule 4(m)
 (3) party received notice of action that it will not be prejudiced in defending on the merits.
 (4) party knew or should have known an action would be brought against them, but for a mistake concerning the proper party’s identity.
 Ex: amend a complaint for “Anrdew Pinter” to “Andrew Pinter” and meet all 4 above.
Supplemental Pleading Rule 15(d):
 Court may allow a party to raise a “supplemental pleading” (setting out any facts that took place AFTER the original complaint was filed) on motion and reasonable
notice.
o Ex: Andrew has breached 2 other contracts since I filed the first complaint against him.
Motions
 A motion is a request for the court to DO something. Must be made in writing, state with particularity the grounds for seeking the order (why you’re motioning) and
state the relief sought (what you want the judge to do). Rule 7(b)(1) most all motions must be made BEFORE you file responsive pleading (answer), 21 days.
o Plaintiff files complaint; defendant files motion; defendant files answer within 21 days of being served.
 Motions can be from the rules (like 12(b)), from tradition, a Latin term (like motion in liminie) or you can make something up!!

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Common Motions
 12(b)(6) motion to dismiss if any element of pleading Rule 8 is lacking.
 If not signed, motion under Rule 11(a).
 Motion for more definite statement- Rule 12(e)
 Motion to strike if redundant, immaterial, impertinent, scandalous. Rule 12(f)
 Could motion for suit to be divided so its cleaner. Rule 21
 Can motion to consolidate 2+ claims against them Rule 42.
Rule 11:
 If claim is frivolous, 11(b) motion. (More likely, send opposing attorney a letter of “21 Day Safe Harbor” advising them that their claim is meritless and they should
review facts and get a second opinion.
 An attorney’s signature on pleadings/motions means that you have read them, and you have made a reasonable inquiry into the matter so that your claim isn’t
frivolous. Diane v. Jaegar & Haines. Doesn’t matter what your motives were, the test is whether the attorney made a factual inquiry. Court doesn’t want to discourage
creative advocacy, but a claim must have merit. Diane v. Jaegar & Haines.
12(b) motions
(1) Lack of SMJ Can file 12(b)(1) motion if damages are not enough for SMJ: less than 75K in diversity suit
(2) Lack of PJ- my client doesn’t have contacts in the state…
(3) Improper venue- see venue
(4) Insufficient process-
(5) Insufficient service of process- service was made on a 4 year old
(6) Failure to state a claim upon which relief can be granted - motion to dismiss.
(7) Failure to join a party under Rule 19. (see Rule 19 synopsis above)
 12(b)2-5 are your pleas in abatement. They must be raised within 21 days of being served with the complaint or they are lost forever. Must be filed TOGETHER
(any that are left out are lost).
 12(b)(1) motion can be raised anytime. It is never lost. 12(h)(3)
 12(b)(6) motion can be raised anytime before trial. 12(h)
o For example, you could file 12(b)(2,3,4,5) motions in 21 days, then 12(b)(6) just prior to trial, then 12(b)(1) motion ANYTIME.
Class Actions Rule 23
 23(a): Class action requirements:
o (1) “numerosity” – joinder is impractical. This means 40+ people. Huber Chevrolet
o (2) “commonality” – Common question of law or fact among the class – question of law or fact is “closely related” (doesn’t need to be identical). Huber
o (3) “typicality” – claim or defenses of representative party are typical of class. Is P an adult, not part of a corporate class, not a felon.
o (4) “adequacy of representation” the representative party will fairly and adequately protect interests of class. There will be (1) adequate counsel (counsel is presumed
to be adequate unless contested) and (2) P doesn’t have interests’ antagonist to class. Huber.
o Don’t forget SMJ, PJ and Venue.
 23(b): Three Types of Class Action. Class action must be “certified” as one of these types:
1. 23(b)(1) class: Prosecuting separately would create risk of inconsistent trials/varying standards for opposing party OR individual suits would bring up the interest of
a class or would impede their interest (like a common fund, closely united class, fighting to divide up money) “We discern no allegation of a limited fund that would
demonstrate why this type of certification should apply in the instant case”. Huber.
2. 23(b)(2) class: Opposing party acted (or omitted) on grounds pertaining to a general class and relief = injunctive or declaratory relief (NOT $ damages) (like
employment discrimination, environment, desegregation).
3. 23(b)(3) class: Question of law or fact common to class predominates over individual questions and class action is superior to other methods.
4 things to consider/requirements to certify under 23(b)(3):
1. Common Question predominates- is there a factual link between all class members and D for which the law provides a remedy? Must be yes.
2. Superiority of class action as a method - Is there an interest in pursuing separate actions? Must be no.
3. Any other litigation surrounding issue already commenced? Must be no.
4. Desirability of concentrating actions in one forum? Judicial economy!
 NOTICE FOR CLASS ACTIONS 23(c) – each class member shall be advised that he has the right to exclude himself from the action on request or enter an appearance
through counsel, and further that the judgment, whether favorable or not, will bind all class members not requesting exclusion. To this end, the court is required to direct
to the class the best notice practicable under the circumstances including individual notice to all members who can be identified through reasonable effort. Eisen.
o Individual notice to class members is required where their names and addresses can be ascertained through a reasonable effort.
o If class members name/address cannot be ascertained through a reasonable effort, publication is okay.
o Petitioner must bear the cost of notice to his class members. Eisen.
Exceptions to Res Judicata:
 A class member who received no notice of first lawsuit and wants to sue CANNOT if (1) she was adequately represented by class and (2) notice was proper. Mullane.
 If facts of a new P’s claim vary from the class action OR they sue under different question of law, it may be that the P wasn’t adequately represented by the class
and can bring suit. (class action for short sandwiches. A year later, Bob wishes to bring suit for short AND contaminated sandwich).

CLASS ACTIONS (Rule 23)

 Designed for efficiency and economy, to avoid confusion of too many parties in court
 Public interest class actions born with Brown v. BOE
 In 1960s was vehicle for an extraordinary expansion of federal substantive law—civil rights, consumer, environmental, safety, etc
 Current debates: limits of class actions  have we stretched it too far?

CLASS ACTION PROCEDURE:

 Every member of class must have claim in excess of $75K for federal court
o Appears to go against plain language and intent of 1367, but held in Zahn and upheld in Abbott
o Unlike diversity and venue, which are only required of the class representative(s)
 Personal jurisdiction waived for absent class members if given three things:
o (1) adequate representation; (2) notice; (3) chance to opt out (Phillips)
 Class certification  Class certification requires several prerequisites—certification has become a big deal
o Threshold questions that must be answered before certification; implied prerequisites 23a and 23b
1. Must have a class – an identifiable, discreet group
a. Critical element of class action  need to figure out who is bound by the judgment
b. Cornerstone of judicial process  right to your day in court

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 i. Figurative day in court in class actions  make sure it’s used only when appropriate, and make sure all absent class
members are protected (so we impose prerequisites)
2. Plaintiff representative must be a member of the class
a. Plaintiff gets standing by being a member of the class (i.e. Heitner, Dora)
3. Numerosity requirements Rule 23a1
a. Class must be large—at least 40-50 people to demonstrate efficiency and economy
4. Common question of law or fact Rule 23a2
a. Class must be tied together my a common question
b. Low threshold—only need normal commonality
5. Typicality requirements Rule 23a3
a. Class representative’s claims must be typical of all the class members’ claims
b. Want rep to look like class member and have average claim, not to have spiteful motivation or special arguments
6. Adequacy requirements Rule 23a4
a. Representative and lawyer must be adequate throughout the case  can’t bind absentees unless they are adequately represented!
7. Legitimacy requirements Rule 23b
a. Action must fall within a category that’s recognized as a legitimate class action
i. 23b1 – Anti-prejudice device
1. Least used of the three—covers limited fund situation
ii. 23b2 – Social action class action
1. Injunction or declaratory judgment where everyone wants same thing
2. More of these actions than any other—so no one complains about them
iii. 23b3 – Consumer cases
1. Group injured by common practice and all want damages
2. All of the complaints about class actions centered here  this deals with money, cases are often high visibility
o Certification  battle in most class actions is over this point
 If class is certified, greatly increases plaintiff’s chances for success (in litigation or settlement)
 If not certified, all they’re left with is a couple of representative individual actions
 Class action is binding on all members of class who do not opt out
 Decisions to settle class actions must be approved by the judge
o Settlement must be fair, reasonable and adequate—class members must get notice, and they can choose to object Rule 23e

23(b) CLASS ACTIONS:

Rulemakers built procedural protections into b3 class actions that aren’t there for b1 or b2—make certification difficult
1. Notice must be given to the class members
a. “Court must direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be identified
through reasonable effort”  individualized Mullane notice
2. There must be a right to opt out
a. Opt-out privilege is only as good as the notice!
3. There must be a predominance of the common question of law or fact
a. Doesn’t mean every issue must be common (damage issue rarely is!)—but does mean that the vast majority of liability issues must be common
b. More cases about this than any other part of the class action
4. Must prove that class action is the superior form of adjudication
a. Sometimes superiority is absent because there is an administrative alternative, but most people say when there is a mass phenomenon with predominance,
class action is the best way to go

Discovery
 Discovery serves to (1) preserve evidence (2) clarify the issues (3) to simplify the trial and (4) to weaken and exhaust the adversary (4th purpose is known but not said –
it is a illegitimate purpose)
 Scope of discovery is anything relevant to a claim or defense 26(b). Info sought must be “reasonably calculated to lead to admissible evidence” Gonzales.
Centerpiece of civil litigation in this country, #1 area in terms of rule-making activity within the Fed Rules
 Philosophical underpinning  leveling the playing field, avoiding trial by surprise
o Everyone has equal access to all relevant information  maximizes likelihood that the court gets it right
 Discovery enables summary judgment to work
o Designed to determine if there is a triable issue, or if there was a way to resolve the case without trial by enabling judge to work with the pleadings
augmented by discovery productivity?
o Trying to avoid trial if there isn’t a reason to go to trial
 Discovery is labor-intensive, costly, takes a long time
 Discovery is intrusive at many levels: functioning of entity, privacy, economics of litigation
 Only 50% of federal cases have discovery at all, and discovery is only limited to 10 events
o In lengthy, complex civil cases (10%) there are more than 10 events

Three Important Discovery Areas

1. Scope of Discovery – what is the legitimate area of inquiry?
2. Discovery Devices – what methods do the parties have at their disposal to gather evidence?
3. “Work Product Doctrine” – Hickman v. Taylor

I. SCOPE OF DISCOVERY
Federal system determines scope of discovery, discovery mechanisms
 Kelly v. Nationwide Mutual Insurance: decided before the fed rules
o State law held that discovery could ask about anything relevant to an issue in the action (as opposed to being restricted to an issue in the pleading) 
moving towards fed rules
 Can’t seek privileged information
 Information sought must be admissible as evidence
 Rule 26b1  Federal standard broadens discovery scope and limits

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 o Discovery on any matter not privileged that is relevant to the claim or defense of any party
 “Relevant to a claim or defense” scope  plaintiffs always fight to maintain this open scope, defendants always fight to narrow it
o Materials don’t have to be admissible at trial to be discovered at this stage
o Rule 26f  parties mandated to get together and negotiate discovery before judicial conference
 Seattle Times v. Rhinehart: newspaper orders donor list/member list for discovery
o Court grants discovery, but with a protective order
 Doesn’t want people using discovery regime cavalierly, for ulterior motives
o Illustrates the extraordinary discretion of the trial judge, as far as what is/isn’t discoverable
 All of these discovery orders are interlocutory—rarely appealable
 Rule 26c  Protective Orders
o Protective orders have been a battlefield for over a decade
o Raises issue whether a civil litigation is a public or a private process
 Discovery drafters thought it was a private process—scope of discovery much broader than the scope of admissibility
 Many go to alternative dispute resolution to gain the privacy they can’t get in court
II. DISCOVERY DEVICES
1. Mandatory disclosure (Rule 26a)  automatic obligation to turn over certain information—regardless of whether anyone asks for it or not
a. Documents, witnesses, damage computations, insurance policies qualify for mandatory disclosure
i. These are things that the rulemakers believe are so obvious, central, and important to getting going that no motion should be needed
b. Don’t get to discovery until you’ve gotten through disclosure
i. Most lawyers would say that nothing much turns on this rule
2. Deposition  can question any person (party or not) under oath regarding subject matter of the case
a. Notice is only required if deponent is a party—can force a non-party with a subpoena
b. Strength of deposition is that it’s spontaneous, respondent must answer on the spot
c. Respondent must answer all questions  depositions can include things that are inadmissible
i. i.e. not an objection that they’re talking about hearsay
d. Rules 31, 33  limit each party to 10 depositions (up to 7 hours each) without a court order
3. Deposition on written questions  rarely used; can also be directed at anyone
a. Saves money (oral depositions are very costly), and works well when the witness isn’t antagonistic
b. Downside is that you aren’t there—you’re stuck with whatever questions you sent in advance, can’t react to what the person says
i. However, if something shows up, can opt to orally depose the witness
4. Interrogatories  questions sent to other party who answers them with lawyer and sends back
a. Work shifters  less cost for questioner, more for answerer; easier to write questions than answer them
i. Gives interrogating party the benefit of the entire information base (not just what other party knows personally)
ii. Many lawyers use as a sweep  find out who knows what, and then depose them
b. Interrogating party writes out all their questions, limit of 25
i. Rule 33  used to get baseline data, used for things with a specific answer
5. Document discovery / land inspection (Rule 34)  access to land, machinery, laboratories, computer systems, and electronic data
a. Following conference in accordance with Rule 26d, just give notice about what you want to see
b. This discovery device now becoming as important as depositions in products liability, etc
c. Pervasiveness has led Advisory Committee to consider new Fed Rules on electronic discovery
i. Is there a duty to maintain information? How long? What kind of storage?
6. Physical/Mental examinations (Rule 35)  court order to submit to examination
a. Only discovery device that requires a motion and subsequent court order for imposition
b. Rule requires def to establish two required elements before court issues order 
i. Good cause—needs info from the exam that it can’t get elsewhere
ii. In controversy—matter being examined is specifically in dispute in the case
c. Closest of all fed rules to violating the Rules Enabling Act
d. Schlagenhauf v. Holder: bus driver involved in accident, def petitions court to issue order for 4 exams
i. Court says must balance privacy rights and interest in resolving disputes justly and expediently
ii. Since plaintiff didn’t assert his condition in his claim, court says Rule 35 requires def to demonstrate good cause and the fact that his condition is
in controversy in the case
1. Because no evidence brought to support requirements, SC reversed the exam orders


Depositions
 Initial Disclosures: Information that needs to be initial disclosed are contact info of discoverable witnesses, documents, damages and insurance. 26(a). WITHIN 14 day
after 26(f) conference or different time agreed on
 What can be discovered: guidelines are (1) it must be relevant (2) it must be important (3) it cannot expend and unreasonable amount of resources (4) cannot impose too
much of a burden. 26(b)(1)
 Defendant can limit discover by length of deposition or # of depositions 26(b)(2), can ask for a protective order to curb disclosure, method terms, limiting scope 26(c).
Can create a discovery plan to limit. 26(f)
 “Deposition discovery rules are to be accorded a broad and liberal treatment… but limitations inevitably arise when it can be shown that the examination is being
conducted in bad faith or in such a manner as to annoy, embarrass or oppress the person subject to the inquiry. Further limitations come into existence when the inquiry
touches on the irrelevant or encroaches upon the recognized domains of privilege (like attorney client privilege)” Hickman.
 All the details: Scheduled by attorneys or written notice Rule 30. Reasonable written notice is required. Takes place where attorneys agree, or where written notice
designates. Court reporter present to record and swear in deposed. Can ask broad and free wheeling Q’s because they may LEAD TO admissible evidence.
 Attorney can redirect questioning for their client after. Copy is mailed to both sides and a party can modify answers. If an attorney’s client doesn’t show up, Rule 30
sanctions may be in order.
 Can depose informally (but cant use in trial), with informal notice (but deposed may not show), or with formal notice (a subpoena to compel them there; and if they did
not show they would be held in contempt of court).
 Remote witness: Rule 30 go to him. Rule 30(b)(4) depose by remote means like over the phone. Rule 31 send written questions and have court reporter where witness
lives ask questions.
 For witness from a company: Rule 30 send written notice for one of company officers to come, or rule 30(b)(6) send notice saying what you need answers for and
company has to provide someone specific.
 At trial: may be used during cross examination of a witness to contradict their testimony/impeach them. Can be used if witness is unavailable at trial. Rule 32.

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Interrogatories
Only for parties to the suit. Ask up to 25 questions in relation to claim or defense (or # attorneys agree on). Rule 33. These establish preliminary facts and are cheap
compared to depositions.
 May be used to contradict witness testimony/impeach at trial.
 Under oath and signed by a notary.
Request to produce documents- Rule 34
 Must be described documents requested with reasonable particularity. She must respond in 30 days (turn them over or objection such as if they’re privileged). Must
turn them over in a timely manner 26(e).
 May be admitted into evidence at trial.
 May ask the other party to bring documents to the deposition.
Physical Examination- Rule 35
 Only for party to suit or someone under control of party (minor). (1) Condition must be in controversy and (2) good cause.
 Must have permission of the court.
Request for admissions (Rule 36)
 Get material facts admitted and once admitted, you don’t have to prove them at trial. Party can ask for attorney’s fees if they have to prove something at trial that was
denied under a request for admissions. Must respond within 30 days. Used to clear up basic things. Written requests to admit or deny.
 ANYTHING can be agreed to by attorneys, like to waive time period or limits.

Subpoenas- compel individuals to attend depositions or come to trial to testify. Rule 45

 Compelled from court where action is pending and w/ requirements of 45(a)- must state method used for recording, time and place, any documents you want them to
bring.
 Service of subpoena must by be done by a person who is 18+ years old and a non-party to the suit 45(b)(1).
 Person may move to quash subpoena in court where compliance is required for: undue burden, not enough time, getting married, morally opposed to meeting in
Tunica… best to call the witness before subpoena.
 Can compel deposition within 100 miles of where a person lives/is employed/regularly transacts business 45(c)(a). (anywhere: Starbucks, office, etc.) State lines do not
matter.
 FOR TRIAL: you can only compel witnesses within the state and who will not incur substantial expenses 45(c)(1)(B)(ii). If you NEED out of state witness, offer to pay
their expenses. You CAN compel a party to the suit to testify in trial, even if out of state.
Work Product – of an attorney for purposes of discovery - documents and tangible things in preparation for trial. 26(b)(3).
 If work product is OBJECTIVE work product, qualified privilege and immunity can be overcome by a 2-part showing 26(b)(3)(A)(ii): (1) substantial need (2)
cannot get it another way.
 Subjective work product = granted absolute immunity and cannot ever be discovered. (The lawyer’s notes)
 Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and mental impressions of an attorney. Hickman.
 Where relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery
may be properly had. Hickman.
 Anything w/ attorney’s mental impressions or legal theories or strategy = subjective, not discoverable. Anything objective may be discoverable, such as: a manager’s
standard accident report form. Doesn’t reveal opposing counsel’s opinions.
 Hickman v. Taylor: greatest discovery case ever decided in this country
o Lawyer performed extensive work (interviewing, etc) before case was brought
o Plaintiff brought suit and filed an interrogatory requesting basically everything from lawyer (copies of all statements taken in connection with accident, and
if oral, summaries of the statements)
o SC said this is essentially an attempt to get inside the head of the opposing counsel, without justification since plaintiff can interview witnesses himself
 Not a privilege case, because not about attorney-client communication
 But the information is attorney work-product—need a good reason for obtaining it
 If this case didn’t exist, lawyers would wait for opposing counsel to do work and then just ask them to turn it over

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  In the alternative, would lead to lawyers not writing anything down, which is also bad
o Miller  SC doesn’t create a lawyer’s privilege, but a qualified immunity
 If can’t get a substitute, immunity is trumped in the name of access to all relevant data; but if there is a substitute, immunity holds
 Rule 26b  Codification of the Hickman rule
o A party may obtain discovery of documents and tangible things prepared in anticipation of litigation or for trial by or for another party (or representative)
only upon showing substantial need and unable without undue hardship to obtain substantial equivalent by other means
o Court shall protect against disclosure of mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party
concerning the litigation
 If mixed, judge will receive documents and cross off all the stuff that’s work product

Expert Witnesses 26(2) - witness writes report that contains (1) complete statement of all opinions, witness will express his reasons for opinions (2) facts or data considered by
witness (3) any exhibits used to summarize or support opinions (4) witnesses qualifications – including lists of all publications within last ten years (5) list of all other cases in the
past four years the expert has been a part of (6) statement of compensation to be paid for study and testimony (can charge whatever they want)
 Disclose to other party within 90 days of trial or 30 days after other parties’ disclosure.
 Cannot require someone to be an expert witness.
PRE-TRIAL MANAGEMENT
 Rule 16  Pretrial Conferences; Scheduling; Management
o Gives court power to sequence, direct, schedule and manage in every respect
o Prior to 1983, judges did not have to involve themselves with the idea of settlement
o Rule 16 amended the requirements dramatically
 As soon as case falls within the docket (few exceptions), the judge grabs it and holds a conference to determine the scheduling, sequencing,
management, etc of the case
 Puts much greater pressure on parties to get moving on a settlement
o This and subsequent conferences create a triangulated system to promote settlement
 Judge now major participant in process (20% of judicial resources shifted to management)
 Some believe push for settlement hinders parties’ right to adjudication
 Rise of Para-Judicials
o Magistrates  judges created by Congress, no lifetime appointment or presidential commission
 District judges can delegate authority to run discovery, though no adjudicatory power
 Make recommendations to district judges—trial lawyers may not see real judge for a while
o Masters  ad hoc appointments (Rule 53) for specific purposes (i.e. economist, accountant)
 Make reports and recommendations to district judge on matters within area of expertise

Below fed rules, each district has local rules, and judges may even have their own rules .

Defaults and Dismissals

Default Judgment
 (1) entry on default by court clerk when D has passed date to answer (21 days from served OR 14 days from responsive pleading, like if D files 12(b) motion) 55(a) (2) enter
judgment- you need an affidavit (like from a bank) and get clerk to enter judgment on how much D owes. If amount is less certain, you need a hearing with the judge (with
evidence) to prove damages 55(b).
 If D doesn’t show up to trial, that’s not a default. That is just winning. (Default is they forgot to answer)
 Judge can set aside a default judgment for good cause by the defendant. Judges discretion. 55(c)
 37(d) - Penalty Default - would be like if D ignores a court order to answer interrogatories.

Non-suit/Voluntary Dismissal – 41(a) – Plaintiff can voluntarily dismiss their claim BEFORE the defendant answers/files motion without proposal OR after they answer with
permission of the opposing party or the court.
 P has the absolute right to voluntarily dismiss. Marques
 If it’s the middle of the trial and all the P’s witnesses suck and they know they’ll lose, they can try to voluntarily dismiss but they probably won’t receive permission
from either the defendant or the judge because it’s the middle of the trial.
 D can ask for costs if a nonsuit is brought a second time.
Involuntary dismissal 41(b)- Judge can dismiss for failure to follow the rules - (like if P doesn’t do anything with case for 15 months) (Cannot be brought again due to res
judicata)
Summary Judgment
Summary Judgment- granted where there is no genuine dispute as to any material fact and movant is entitled to a judgment as a matter of law. Rule 56(a)
 Unmoving party contests judgment by arguing there REMAINS a genuine issue of material fact.
 Burk’s affidavit in Lundeen was so strong because it was made on personal knowledge, uncontested, and he is an uninterested third party 50(c)(4)
 D can file motion until 30 days after the close of discovery.
 Serves as a filtering device  designed to shorten trials, motion made in the middle of a case
 Stages of trial that serve as filtration devices—should the trial go on?
o Rule 12b6 Motion to dismiss  has anything been stated that amounts to a claim for relief?
 Def says there is no claim upon which relief can be granted
 Def who makes motion makes concession that all of the facts of the complaint are true
 If granted, there is usually leave to re-plead
o Rule 12c Motion for judgment on the pleadings
 If granted, there is usually leave to re-plead
o Rule 56 Motion for summary judgment  asking is anything jury-worthy?
 Universal standard = is there a genuine issue of material fact?
 Granted if plaintiff’s case has no legal basis (i.e. no legally recognized wrong)
 Granted if all material in the motion sings the same song (i.e. no reasonable jury could disagree with it all)
 Granted if there is a iron-clad defense that can’t be overcome (i.e. statute of limitations has expired, res judicata applies)
 If there is, go forward—if there isn’t, in effect you’re saying there is nothing trial-worthy
 If granted, produces final judgment with res judicata effect—not appealable!
o Rule 50 Directed verdict motion  judgment as a matter of law; asking is anything jury-worthy?
 Essentially the same as a Rule 56 Motion—but timing is different

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  Case is getting more mature, motion-making getting less forgiving
 Def claims plaintiff’s evidence is insufficient, doesn’t satisfy the burden of proof
 If granted, produces final judgment with res judicata effect—not appealable!
o JNOV  renewed motion for judgment as a matter of law
 Case went to jury, jury ruled, and verdict-loser is making this motion claiming that the case actually shouldn’t have gone to a jury
 Same motion as directed verdict, Rule 56—reflects back to whether issue was jury-worthy
 If judge grants, he changes the verdict!
o Motion for a new trial
Highly discretionary—e.g. granted when discrimination is found
 The only reason we have trials is to determine issues of facts—if no facts are in dispute, judge can rule on case as a matter of law
o 1Ls often miss this  if there are no triable issues of fact in fact pattern, no reason for trial!

RULE 56(c) CASES:

 HYPO: Student is walking to school, hit in crosswalk. Plan to present eyewitness accounts at trial from various religious figures who will all testify they saw the
student in the crosswalk, then saw the car hit him while driving like a bat out of hell. Def plans on putting a less credible alcoholic on the witness stand to testify that
plaintiff was running, looked drunk, saw the car coming, and shouted “hit me, hit me,” and that the car tried to stop.
o Pretty obvious that plaintiff would win at trial
o Plaintiff makes summary judgment motion, claiming there is no genuine issue of material fact with respect to negligence 
 Judge can’t consider facts—merely asks are the facts in dispute?
 Facts are in dispute if we believe def’s witness, but at trial we wouldn’t believe him
 But factual disputes should be left to the jury, because regardless of how obvious it seems there is an issue of credibility that the jury
must decide
o This case must go to a jury—summary judgment shouldn’t be granted
 Lundeen v. Cordner: material fact at issue  whether decedent took the necessary steps to change his will
o Intervener moves for summary judgment; court grants, saying trial would be a “waste of time”
 Plaintiff’s affidavit didn’t meet issues raised and supported by intervener’s affidavit
 No further evidence would come up at trial
o Once the moving party says there is no issue of material fact, then opposing party has opportunity to present evidence that there is a genuine issue  but
plaintiff didn’t do that here—should have done discovery, should have deposed intervener’s witness
o In Lundeen, the material issue was a pure fact
 There can also be mixed law/fact questions (i.e. purpose, motive, intent)

Jury Selection
Right to a Jury Trial
 7th Amendment guarantees the right to a jury trial shall be “preserved” if it existed at common law in 1791. Purely equitable issue (injunction/ specific performance) =
no right to jury exists. Legal issue (wants $) = YES
 Where both legal and equitable issues are presented in a single case, only under the most imperative circumstances can the right to a jury trial of legal issues be lost.
Beacon Theaters.
 Even if legal issue is incidental to the suit, not the heart of the suit, the right to a jury trial is SO important, legal issues must be tried first. Dairy Queen.
 Constitutional right to trial by jury cannot be made to depend upon the choice of words used in the pleadings –Dairy Queen (ex: person wants “equitable monetary
relief”—that is money)
 Even if COA wasn’t available in 1791, if it is analogous tort actions at common law, the right to jury still exist. Curtis. This means even if suing off of statute post-
1791, the statute’s premise probably goes back to 1791
 Is the issue legal or equitable (and thus, does a jury trial exist)? To determine if an issue is legal, consider (1) the pre-merger custom (does it go back to 1791) (2)
remedy sought (money or equitable relief) (3) practical abilities and limitations of juries (most controversial- saying juries shouldn’t have to hash out a breach of K suit
between two huge corporations) Ross (Ross divided equitable claims and legal claims in half- very controversial) (Ross heard the equitable claim with a judge
and the legal claim with a jury)
Jury Selection
 Thiel (1946)- §1861- Entitled to a jury pool of one’s peers. “All litigants in federal court entitled to a trial by jury shall have the right to a jury selected at random from
a fair cross section of the community.”
 § 1861- all US citizens shall have the opportunity to be considered for serve on a jury in federal court and shall have the obligation to serve as jurors when summoned
for that purpose. Qualified UNLESS §1865 (1) not a citizen that is 18 years old (2/3) unable to read, write, understand, or speak English (4) mentally or physically
incapable to render satisfactory jury service (5) charge pending against him or had been convicted of a crime punishable by imprisonment for more than a year.
 § 1863- The court shall begin with a list of actual voter or registered voters (VERY different) § 1863(4) A jury wheel or lottery system shall draw names from ½ of
1% of the list to notify for jury service. § 1866 (b) Then a summons is personally served or mailed to everyone. They are required to fill out a form and show up.
 Weeding out jurors: From the pool of prospective jurors, judge will dismiss some (judicial discretion) 1866(c): if undue hardship, disruptive, (such as: if you’re over
70, or have primary custody of kids under 10, or you are a doctor/lawyer/firefighter, or a business owners where the business would have to close).
 § 1863(b)(6): People excused from service: (a) members in active service in the Armed Forces of U.S. (b) members of the fire or police dept. (c) public officers in any
branch of government. § 1866(g) - a juror doesn’t show up good cause? = excused. Not a good cause?  imprisonment, up to $1,000 fine, or community service
(mother of small kids was ordered 40 hrs community service for not calling in advance). Not enough jurors?  probably order Sherriff to go find some
 # of Jurors: 6-12. Judge has total discretion. Rule 48(a). Verdict must be unanimous.
Voir Dire
 Rule 47- typically first by the judge to ask questions to jurors such as if they know the parties or lawyers (too see if they are incapable of being fair 1866(c). It will the
be turned over to the layers to:
o Challenge the whole panel or process (“I think this whole panel is constitutionally flawed because it is from registered voters which statistically discounts
young people. Major challenge: would need to file papers first, have statistics/research, etc.)
 RULE 47- lawyers ask to see if (c) they have cause to have a juror removed (of why they wouldn’t be fair) No limit to how many judge can remove for cause and (b)
each lawyer can exercise 3 preemptory challenges- no reason given –
o ONLY limitation: is if it appears preemptory challenges are based on gender or race, (violates juror’s equal protection rights under const.) there must be a
gender-neutral or race-neutral explanation. Edmonson (1991), J.E.B. v. Alabama (1994)
o You CAN use a preemptory challenge for religion.
o In any capital case, there must be an independent review to make sure constitution is applied properly
TRIAL BY JURY
 6th Amendment  guarantees jury trial in criminal cases (incorporated into 14th Amend, applies to all states)

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  7th Amendment  civil jury trial (has never been incorporated through the 14th Amend)
o 1st clause: gives the jury trial right, as at common law
o 2nd clause: prevents judges from re-examining what juries have done (already seen in Gasperini)
 Legitimacy of jury trial  for criminal trials, jury trial was to be a buffer between citizens and state, and recognized unbelievable power of the state prosecutors
o This function isn’t so necessary in civil litigation
o Civil litigation  think about judicial bias, the common sense/ethics of the community rather than a judge
o Often wasteful, time consuming

Courts didn’t treat jury trial as a right in civil cases—until Beacon (but not all states adopted Beacon—on an exam, would be safe to say “on the one hand, on the other hand…”)

Beacon Theatres: district court treated as an equity action, which doesn’t require a jury trial
 Historical divide  merger of law and equity didn’t take into account jury trial question
 District Court says a declaration is like an injunction  therefore equitable (looks at predominance of the case)
o 9th Circuit says district judge has right to determine whether a case is jury triable or not; says based on “Clean Up Doctrine” an equity court with
jurisdiction can clean up the situation with monetary aid
 SC said it is a misconception that a declaratory judgment is solely equity because there are no damages
o Says to determine jury triability have to get beneath the device used, and ask what are the underlying issues with regard to jury triability
 Justice Black concerned about preclusion—going forward with equity issue force estopps Beacon from trying the antitrust case
 1st case saying that 7th Amend jury trial right applies to each issue in the case  judge’s job is to atomize the case and determine what the issues are, no central
predominance
 SC drastically departed from precedent by establishing 3 categories of issues in cases 
o Legal (tried by jury)
o Equitable (tried by judge)
o Mixed law/equity (tried by jury)

POST-BEACON:
 Beacon Theatres was all about taking a case that was totally equitable under the clean-up doctrine and converting it to a case that is 2/3 jury trial
o Twin prerequisites of equity jurisdiction  inadequacy (shrinking as legal system expands), irreparability of harm
o Ability to get into equity and bypass the jury shrinks, as exemplified by the following hypos
 Pollution HYPO: Plaintiff sues for an injunction and for damages under 8e, 8a3
o Judge has to atomize  Is this an actionable nuisance? If so, what are the damages? Finally, should the remedy of injunction be made available to the
plaintiff?
 Is there pollution—combination of law/equity, so goes to jury
 Damages—purely legal, so goes to jury
 Should judge exercise equitable discretion and grant injunction—pure equitable, so judge decides
 Contract HYPO: Plaintiff contracted with def for widgets; def didn’t produce them. At equity, if plaintiff came into court and said this, it would be a request for
specific performance (equitable) and therefore up to judge. Now:
o Almost all issues here are legal/for the jury
 Was there a bargain? (combination)
 Was there consideration? (combination)
 Was plaintiff willing to perform his side? (combination)
 Was there a breach? (combination)
 What are the damages? (purely legal)
o Only equitable issue  should specific performance be granted?
 Dairy Queen v. Wood: plaintiff asking for permanent injunction and an accounting of the money they were owed
o Both aspects of plaintiff’s case was historically equitable
o SC again rejects tradition  says jurors are capable and can get masters to help with complexities of accounting
 Again demonstrates Black’s desire to embrace opportunities to expand jury trials
o Court goes farther than Beacon—takes a large head of equity jurisprudence (accountings) and moves it over to the law side, giving it jury trial right
 Would seem after Beacon and DQ that we should get rid of equity completely—but there are some forms of equitable relief that jury can’t handle effectively (i.e.
paradigmatic injunctions and specific performance), and at times it’s better to have discretion based on a wide angle of experience, familiarity with the legal
mechanisms and principles (i.e. nuisance, specific performance, perishable products, desegregation, etc)

Questions to ask to determine whether an issue is law or equity

1. What did the court do in 1787? (footnote)
2. What is the remedy sought?
a. Money or money substitute = jury
b. If want to enjoin someone from discriminating against you = pure equity
3. What court are we in?
a. Article III courts = math on jury trial skyrockets
b. Bankruptcy court, military tribunal, etc = unlikely to get jury trial
4. Who is judging case?
a. Judges Black and Douglas = presumption is always a jury trial
 On exam, have a case, come up with any analogy you want

***IF juries get confused on instructions after the trial, the trial judge maynot want to hear it… Very challenging.

Trial
P v. D, slips and falls, wants $$$
1) P’s case (puts on all evidence); Plaintiff will rest;
2) (optional) D moves for a directed verdict (or judgment as a matter of law) 50(a). Says ‘the P’s case is so weak that a jury is unnecessary. Judge is likely to deny
unless P’s case is ridiculous. Probably would’ve been thrown out sooner if it was.
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 3) D’s case (puts on all evidence) and presents the law
4) D moves again for 50(a) Directed Verdict; prerequisite motion at this time or else it is lost. Reeves.
5) Judge denies DV
6) Jury; jury awards money. Rule 51- Judge will give jury instructions (both sides submit, in writing, a statement of the law. The judge looks at Arkansas model jury
instructions. Judge will have a conference with lawyers 51(c), lawyers have to object, on the record, before the instructions go to the jury, if you think any jury instructions
distort the law.)
 General Verdict - jury decides
 Special Verdict- D lawyers will call for these; 49(1)(a) written questions susceptible of a categorical or brief answer. Judge reviews them and comes up with a
conclusion.
 Mix of the two: Specific questions to the jury and the last question asks the jury to decide how much the plaintiff gets, if anything. Judge will ask if the verdict is
consistent with the answers.
o Last 2 are common w/ comparative fault tort cases. Otherwise, they’re rare because more work
7) D files a 50(b) motion; “renewed motion for judgment as a matter of law” – “judgment not withstanding the verdict” – wants the judge to consider the same question of
law again. MUST MAKE #4 TO MAKE #7. Within 28 days of jury being discharged.
Judgment as Matter of Law (Directed Verdict)- Rule 50
 Must bring 50(a) motion before 50(b) 50(a): brought before the jury returns a verdict and after the opposing party has rested. Says ‘the opposing party’s case is so
weak, a jury is unnecessary. Judge is likely to deny unless P’s case is ridiculous. Probably would’ve been thrown out sooner if it was.
 Directed Verdict: 50(a) a judge must decide if there enough evidence to go to a jury—the amount needed is “substantial evidence” (not clear and convincing/
preponderance of the evidence/beyond a reasonable doubt) just enough evidence to be able to persuade a reasonable jury. Substantial is less than a preponderance
(which is 51%). If in doubt, you let it go to the jury.
 Court must draw all reasonable inferences in favor of the nonmoving party. Judge cannot make credibility determinations or weigh the evidence (that is for the jury).
BUT they also cannot rely on conjecture and speculation. Its true the judge shouldn’t consider the weight of the evidence BUT evidence that is uncontradicted and
unimpeached by a disinterested witness can be considered in favor of the nonmoving party. Reeves.

discovery D can D
motion jury come D bring
closes (30 trial starts P rests bring presents
for SJ back 50(b)
days) 50(a) case

Post-Trial Motions
Lawsuits end by: default judgment; 12(b)(6) motion to dismiss; 12(c) judgment on the pleadings (judge looks at all pleadings and decides without evidence-RARE); voluntary
dismissal nonsuit 41(a); penalty default 41(b)(involuntary dismissal), 11 or 13; summary judgment 56; directed verdict 50(a); trial; renewed judgment as a matter of law 50(b);
appeal.
50(b)- renewed judgment as matter of law
 MUST have filed a 50(a) motion. Ask the judge to change the verdict again saying that there was no sufficient evidence for a reasonable jury to reach that conclusion
(brought within 28 days of jury being discharged/verdict from the jury)
Rule 59- Motion for a new trial
 Must file: no later than 28 days after entry of judgment
 Judge has broad discretion to grant a new trial. It is a historic safeguard… to prevent a miscarriage of justice. Aetna Casualty & Surety Co. Court may grant new trial
on all or some of the issues and to any party as follows:
 Look to the Arkansas New Trial Rule (59) for examples of when a new trial is granted
1. Any irregularity in proceedings or any order of court or abuse of discretion by which the party was prevented from having a fair trial
2. Misconduct of the jury or prevailing party
a. This could also be misconduct by the attorney of the prevailing party- ex. Juror flirting, Juror bringing in outside evidence
3. Accident or surprise which ordinary prudence could not have prevented
4. Excessive damages appearing to have been given under influence of passion or prejudice
5. Error in the assessment of the amount of recovery, whether too small or too large
6. Verdict or decision is clearly contrary to preponderance of the evidence or is contrary to the law
7. Newly discovered evidence material for the party applying, which he could not with reasonable diligence, have discovered and produced at trial
8. Error of law occurring at the trial and objected to by the party making the application
 Attorneys can poll juries to make sure each juror takes responsibility for the verdict—maybe a more submissive juror didn’t agree.
o If verdict comes back different after polling, judge may (1) order jury to deliberate further or (2) declare a new trial. Rule 48(c).
 If award is excessive, judge can order new trail, let stand or give a conditional new trial/remittiture where he says, “take less or accept a new trial.”
o Additures are illegal. Illegal for judge to award a new trial because damages are not enough.
 If a missing witness shows up after verdict or newly discovered evidence, attorney must show (1) would probably change the result; (2) it was newly discovered since
the result (3) it could not have been discovered before trial by due diligence (4) it must be material and (5) it must not merely be cumulative or impeaching. Patrick.
 APPELATE COURT REVIEW: Standard for reversing a trial judge’s decision to grant a new trial is an abuse of discretion. VERY rare.
Ambivalence towards jury trial shows up in jury control mechanisms:
1. Directed verdict motion
a. Also called motion for judgment as a matter of law
2. New trial motion
3. Motion for judgment notwithstanding the verdict (JNOV)
a. Also called renewed motion for judgment as a matter of law

I. DIRECTED VERDICT MOTION

 Typically comes at the end of trial  lawyers motion for judgment as a matter of law, saying to judge there is nothing to give to the jury
o If it’s granted, case is over—doesn’t go to a jury
 Frequently made at multiple points throughout a trial
o After opening statement: early directed verdict motion (like very late summary judgment motion)

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 o Most commonly made after both parties are done
 Acts a filtration device  filters the jury-worthy and the jury-worthless
o If there is no dispute as to an issue of fact, no legally cognizable wrong, or an ironclad defense, then there is nothing for a jury to do

II. JNOV
 Case actually went to jury, jury did it’s job, and verdict loser is saying that case shouldn’t have gone to the jury in the first place
 In order to make a JNOV motion, party must have also made a directed verdict motion

Why do we have both directed verdict and JNOV?

1. Directed verdict motion  judge has to answer the question in real-time, doesn’t have time to research, read all the papers on the motion
a. Often judge thinks jury’s verdict will come out the way the movant wants anyway
b. Judges are often concerned that if they grant directed verdicts and it’s wrong, the case will get reversed on appeal and the trial has to be done all over again
2. Moving party banks on being able to make JNOV motion if directed verdict is denied  will give judge more time to fully research the issue
a. Also, if JNOV motion is granted but overturned on appeal, jury’s verdict is reinstated—don’t have to go through the trial all over again
3. Many people believe that the latter is more efficient  avoiding re-trials is more efficient than simply avoiding the jury submission phase

Standard for granting directed verdicts and JNOVs

1. Some courts follow the “scintilla” rule  if there is a scintilla of evidence in support of the non-moving party, or on the verdict, then don’t grant motion
2. More common forumulation used by fed courts  judge asks whether a reasonable jury could find for the non-moving party
a. If no reasonable jury could possibly find for the non-moving party, then will grant motion
i. Rely on integrity of judges to administer this honestly, so they don’t become a 13 th juror with a veto power (because this in effect gives judges
trumping power)
ii. Judges are increasingly moving the line about what constitutes an issue for the jury closer to where they prefer, so that it often bypasses the
jury/long process of trial
iii. Same standard for summary judgment
1. Miller says this motion has recently been used over-exuberantly, in contexts in which it wouldn’t have been used 15 years ago

Enforcement of Judgments
PREJUDGMENT REMEDIES-before trial- Rule 64
 To secure satisfaction of the POTENTIAL judgment (rule 64)- there are prejudgment remedies available before a final judgment (so that if a trial is not held for 12
months, there can still be a prejudgment remedy)
 Rule 64- Federal courts looks to state law. Some remedies that may be available depending on state law:
o Arrest (probably not constitutional - rare),
o Attachment (the defendant’s property to seize and hold - Arkansas statute on this)
o Garnishment (taking their wages/or employer withholds wages)
o Replevin - someone bought a car, they’re not making payments and you sue for the car back and in the mean time- you take back the car (controversial and
may not be constitutional)
o Sequestration - Seize someone’s property in a domestic relations suit; taking property before the lawsuit is over
 All above have major issues in application today. All go back to hearing - there may not be a proper hearing in all of these. Problem with taking
someone’s things or arresting them when there hasn’t been a full trial. The defendant deserves the opportunity to be hard.
o Very common - Rule 65- Preliminary Injunction- Stops action on a preliminary basis.
 Temporary Restraining Order = most dramatic of all… do not trespass, do not cut down that tree, do not sell that product, do not execute the
death row man or woman. Judge can issue without notice. Good for 14 days. Emergency situations. You only have to have one side in court.
 Preliminary injunction- both sides are in court–stops action for the time Judge says is proper, possibly until judgment. (“Do not trespass until
we get a judgment from trial)
o Rule 66- receiver- someone appointed by the court to take over property (Ex: In Arkansas, judge appoints receiver to take over nursing home and run it
because it is subject to lawsuit, or fraud, or bankruptcy or going to collapse. People feuding over land during planting season—judge may appoint receiver
to run farmland and lease it). Receiver is hired to run the property and paid for by litigants. Receiver is an arm of the judge.
Post-Trial Remedies
Defendant wants to contest a judgment for the Plaintiff
 Rule 62 - 14 days after judgment (don’t have to pay any money for 14 days after the judgment- 14 day cooling off period), D must go into court and say “I’m hear
under rule 62 and I’m posting a supersedious bond. (62(d)) saying I don’t have to pay the judgment money now because I’m going to appeal but if I lose the appeal, I
promise to pay the judgment. BOND for purpose of the appeal. What losing lawyers do.
o If there’s a bond, D goes up on appeal and you can’t collect. If you wait 14 days and there’s no bond, you begin the process of collecting your money.
Traditional Way of Collecting a Judgment
 Rule 69 - a money judgment is enforced by a writ of execution. You look to state law for procedure (how you will collect and how notice is done).
o Discovery- 69A (2)- Obtaining Discovery. Can take a new deposition of the defendant asking about bank account/assets to try get their judgment and learn
how much they can pay; now more relevant. You can ask those questions to discover what they have to collect.
o Writ of Execution; Sherriff will seize property somehow.
o If necessary, public sale. Pennoyer. Or D surrenders and pays.
 If D ONLY owns their house, the court cannot take someone’s homestead. It is against the constitution. Gets confusing when someone has 400
acres or they’re a single person. P’s lawyer say constitution doesn’t protect all 400 acres. (Just like OJ’s homestead)
 Under Arkansas Law, nothing protecting CARS. (Protects “tools”)
 If he owns nothing but works at Tyson, you garnish his wages. Go through court to get order and get certain amount of each paycheck to be sent
to the court. There are limits to how much you can take; they must be able to still eat.
 Just before trial ended, he gave everything to his brother-in-law. P’s lawyer will argue Fraudulent conveyance (a scheme to hide his
possessions) and ask judge to cancel it.
 Under Rule 70, Judge can sign the deed or appoint a commissioner to sign the deed. Judge can compel D to convey property.
 D is hiding money in Switzerland. Judge can hold D in contempt in court, put him in jail until he pays and take his passport.
 If Defendant only owns property in Oklahoma - take it to an OK judge and ask them to enforce your judgment under the Full Faith and Credit
Clause of the constitution.
 Other people want his money- Priority question. Complicate area of law that asks which person owed is priority. Typically speaking, Uncle
Sam is first. Ex-Spouse is higher than a creditor.
 If creditors overwhelm debtor, debtor should file for bankruptcy.
.

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NEW TRIAL MOTION
 Not part of jury control mechanisms/filtration mechanisms
 Prophylactic motion  verdict has been rendered, judge asking if anything went wrong
o If something did go wrong, was it harmless or harmful?
o If something went wrong and it’s material, judge has power to say let’s do it again
 What could go wrong that would motivate a judge to say new trial?
o Misconduct
 Image of trial as a play, people are playing their roles—if they stray out of role or perform their roles badly, could be cause for a new trial
o Jury instructions/jury charge
 If judge misstates some law, puts the burden on the wrong party, etc
o Lawyer errors
 If lawyer brings up something that the judge thinks can’t be cured by striking it from the record
 If lawyer is inflammatory, prejudicial, etc
o Jury misconduct
 If jury brings in information/evidence that wasn’t brought up at trial
 Juries basically good people, trying to do the right thing  but may come up with an impossible verdict, a quotient verdict, or account for human
frailty in a way that the law or the case at hand doesn’t allow for
 Verdict may be against the “great weight of the evidence” (according to judge)
 Can be based on either the liability determination or the damages determination—either can be impossible in the judge’s eyes, reason
for new trial
 This is not a death motion
o Directed verdict and JNOV are terminal
o New trial is the opposite  trial is still alive, doing it over again before another jury
 Because of this, new trial motion hasn’t had the same difficulties with the 7 th Amend as other two
 New trial motions aren’t appealable, because they don’t produce a final judgment
o But motion can essentially be overturned if judgment from 2nd trial is appealed
 In the name of efficiency and economy, if judge can identify the flaw(s), and the issues are separable  judge can order a partial new trial on the particular issue(s)
o Not all issues are separable—i.e. negligence determination and damage determination
 New trial motion is exceedingly unhelpful—just says that judges have the power to grant a new trial as they always have (learned this in Gasperini)

The trilogy of motions gives the judge considerable power to change what the jury decided  shows ambivalence towards our system of jury trials.

Appeals
Basic rule for appeals §1291- an appeal is taken from a final judgment.
 Finality Rule: Final judgment is when everything that needs to be done in the case has been done at the trial court level and there’s nothing left for the trial court
judge to do. Finality is basic requirement. Bowles.
 If an appeal is going to be taken, it must be taken within 30 days of the final judgment
o Reasons for finality: trial judge wraps everything up; there aren’t delays. If we allow too many appeals during the case, we undermine the power and
authority of the trial judge. Appeals are expensive.
 Disadvantages to the finality rule- certain areas of the law are often underdeveloped. (For example, discovery. There is a shortage of appellate rules.) The entire trial
may end up being a waste of time. (Some decisions wipe out everything at the trial court level and mean that all that was done there was a waste of time).
 The Q of an appeal is a question of jurisdiction because it asks if the appellate court can take a case. Bowles. The Q of jurisdiction is so important, that it is the
responsibility of the appellate court to ask the question sua sponte (was the judgment final, was it filed within 30 days) Liberty Mutual.
8 exceptions to finality rule- All these exceptions allow immediate appellate review without finality
 1) Rule 54(b) Judgment on multiple claims or multiple parties. There needs to be a practical aspect to finality. Macket. Multiple claims (such as negligence and
slander). If trial court grants D’s 12(b)(6) motion and dismisses slander claim with prejudice:
o Wait option: P can wait, go to trial on negligence, then at the end of the trail, appeal and argue slander.
o Certify: Go to the trial court and ask for 54(b) ruling. Ask judge to direct entry of a final judgment as to one or more, but fewer than all claims. (Call the
12(b)(6) motion dismissing slander a final judgment, certify it so that P can appeal). If trial judge refuses, that is the end of it.
o If 2+ parties, and trial judge dismiss one party, P has same two options.
 2) Class Actions 23(f) - When a judge issues a ruling on a class certification issue (allows or refuses to certify it as a class), that decision is an important issue that is
important enough to be appealed before finality.
 3) §1292(a) - When there is something involving an interlocutory order/maritime/patent/etc., there can be an immediate appeal (special types of cases)
 4) §1292(b)- allows a federal trial judge to certify a suit and go straight to appeal. Trial judges can do that whenever they wish but it is very rare because trial judges
don’t want to delay things.
 5) The collateral order doctrine- This decision appears to fall in the smaller class of cases in which finally determine claims of right separable from, and collateral to,
rights asserted in the action, too important to be denied review and too independent of the cause itself to require that the appellate consideration be deferred until the
whole case is adjudicated. Cohen Collateral Order Doctrine: (1) must conclusively determine the disputed question; (2) resolve an important issue completely
separate from the merits of the action (its collateral); and (3) be effectively unreviewable on appeal from final judgment. Lauro Lines, S.R.L. (Judges decision not to
force P to defend in Naples Italy via forum selection clause. Issue failed 3rd prong because it could be raised on appeal after trail.)
 6) A Writ of Mandamus- “All Writs Act” §1651- a court has the power to issue all necessary writs to carry out its jurisdiction. Here the appellate court is issuing a
writ of mandamus to tell the trial judge “you cannot do this.” La Buy. Necessary so appellate courts can supervise trial courts in proper judicial administration. La Buy
 7) Gillespie
 8) Radical Considerations
Supreme Court Review – how does something go to the US SC?
§1254- Most cases that go to the US Supreme Court get there on a writ of certiorari. (Rather than appeal)
 Rule 10- Supreme Court takes cases, not as a matter of right, but as a matter of discretion.
 “Rule of 4” - if 4 of the 9 justices wish to take the case, they issue the writ of cert and take the case.
Notes of Standard of Review
 The attorney must object in a timely fashion on the trial court record, giving the trial judge the opportunity to prevent or remedy potential errors.
 Any alleged errors must appear in the trial court record when it is lodged with the appellate court.
 Alleged errors that are merely harmless will be considered by an appellate court.
 Legal arguments must be first made at the trial court level or will be ignored at the appellate court level.
 Errors must be raised in the appellate brief and record and brought to the attention of the appellate court. You have to bring it to the attention of the court. Point out
mistakes.

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  Trial judge better be right- if the trial judge has the wrong law, the trial judge will be reversed unless it is harmless error. Trial judges are supposed to be correct on
the law.
 When a trial judge make finding of fact, those findings will be appealed unless they are clearly erroneous.
 A ruling by a trial judge under Rule 50 is a ruling on the law. Appellate court applies that same law.
 If a jury makes a finding of fact, the jury is presumed to be correct.
Preclusion
Res Judicata- Claim Preclusion
 (1) Case law- no statute (2) 99% state law, (3) state law to be followed by federal courts by the Erie Doctrine (4) ties into Full Faith and Credit Clause—to rulings of res
judicata in other states (5) applies between federal courts and state courts.
 Based on common sense principles: A person only has one chance in court. They only get one change to litigate a particular issue. But it has to be a fair, full, complete
chance. Res Judicata is a defense, it has to be brought up by the opposing party under 8(c). If it is not brought up, it is waived forever. Res Judicata rests upon a
common principle—Judicial economy. The evil of splitting (we don’t have people to divide their lawsuits).
 Res Judicata is also called “claim preclusion” and “merger and bar” (“merged” if they won the first suit but should’ve sued for other issues with that; “barred” if party
lost in first suit)- a claim that should have been litigated or was litigated in the first trial.
o Example: In an accident, X broke their arm and their leg. X sues Y for the accident and breaking their arm. X wins. X may not bring a second suit for their
broken leg because it would violate Res Judicata.
5 requirements of Res Judicata: Can 2nd suit be brought? 2nd will be barred if 1-5 is present. . .
1. Did the first suit end in a final judgment on the merits
 If the first suit ended in a final judgment, you cannot bring a 2nd suit.
 NOT a final judgment: Claim is not precluded/res judicata not applicable if issue of jurisdiction-- if 1st suit was dismissed by 12(b)(1) (lack of SMJ) or
12(b)(2) (lack of PJ) or 12(b)(3) (improper venue) or 40(a) voluntary dismissal= 2nd suit can be brought (because these are more of prerequisites of
adjudication rather than a judgment on the merits).
 Sometimes final: If 1st suit is dismissed on 12(b)(6) where something was left out, like an element of negligence on a mistake, a 2nd suit can likely be
brought because it was dismissed on a technicality. BUT, if 1st suit is dismissed on 12(b)(6) motion because they P had no claim, it will likely CANT be be
brought again because it was a judgment on the merits.
 FINAL: P CANT bring 2nd lawsuit if dismissed by 40(b) involuntary dismissal because that is dismissed with prejudice. Probably CANT bring 2nd suit if 1st
was barred by statute of limitations either.
 FINAL judgments of the merits: directed verdicts 50(a or b), default judgment (usually), jury verdicts
2. Was the first suit based upon proper jurisdiction
 See 1st bullet above. If 1st was thrown out on 12(b)(1) or (2) motions, CAN be brought again
3. Was the first lawsuit fully contested in good faith
 Did P get her day in court- due process
 If 1st decision did NOT come from a traditional court (like arbitration or an agency), they can likely relitigate.
 See civil and criminal under #5
4. Do lawsuit and second lawsuit involve the same claim or cause of action
 COA: The transaction test- is it from the same transaction? If two claims come from same transaction, the second claim likely cannot be brought later
because it violates judicial economy. Under the modern version of res judicata, we no longer focus on the same claim or cause of action, we focus on the
same transaction. If they came from the same transaction, the 2nd claim could have been and should have been brought in the 1st suit.
5. Do lawsuit one and two have the same parties; or their privies?
 Res judicata covers what was brought and what should have been brought in the first suit.
 Civil/criminal: IF a D is acquitted on criminal charges, res judicata does NOT bar a civil suit for the same incident: because one is criminal and one is civil,
one brought by state v. one brought by private party, different standards of proof (beyond a reasonable doubt v. preponderance of the evidence- even though
state did not reach the higher standard, doesn’t mean a private party cant prove it at a lower standard), Due process- the private parties never had their day in
court.
o Example: OJ
o If D is convicted on criminal charges in suit 1, that is collateral estoppel because that issue has already been tried and he has had his day in court.
Arkansas Supreme Court says that is allowed because criminal suits have a higher standard of proof than civil cases.
Collateral Estoppel- issue preclusion- (1) same issue in both lawsuits (issue of fact OR law, it was PART of the lawsuit, small and narrow) (2) was this issue actually litigated in
lawsuit one (3) issue was determined by a valid and final judgment (4) determination of the issue was essential to the judgment in lawsuit one. = Issue will be barred by collateral
estoppel.
 D should bring an 8(c) affirmative defense (with answer) saying that the issue has ALREADY been decided
 Courts want uniformity and will USE a past issue so that the issue isn’t decided a DIFFERENT way in another suit
 Ex: breach of K suit- issue is “who signed the K?” If that issue is actually litigated and it is essential, we can use that issue in another lawsuit as an established finding;
does not have to be relitigated after.
 Defensive Collateral Estoppel-two defendants- Same P, new D. P v. D1, D1wins; issue-patent, a K, a ruling of law, fraud. THEN P v. D-2; d-2 wishes to use this
issue from suit 1. Brand new defendant. WIDELY ACCEPTED. Blonder.
 Offensive Collateral Estoppel-two plaintiffs- A new P offensively using something against the original defendant. NOT WIDELY ACCEPTED/CASE BY CASE.
Parklane. (was allowed in Parklane) “there is no unfairness to the petitioner in applying offensive collateral estoppel in this case”
o Suit 1: finds that a manufacturer’s part not defective. Suit 2: A new P probably can’t come in (against same defendant) because the ISSUE has already been
decided in suit one. New P will be barred by offensive collateral estoppel.
o P1 v. Honda in Texas for a defective break. P1 wins and court finds break was defective. THEN P2 (entirely new P) sues Honda for the same defective
break. P2 wishes to use the issue that was determined in Texas. Honda would argue: suit 1 was so minor and insignificant with a smaller attorney OR Honda
says they lost that case in Texas, but there were 3 other suits in other states where it was determined our break was fine—P is choosing the one case we lost
and wanting to use it against us, which isn’t fair. Parklane—a trial judge, in the appropriate case, can allow offensive collateral estoppel.
o Has been accepted on a case-by-case basis. Judge’s discretion.
Is second lawsuit prohibited—if P sued in March for breach of contract from failure to deliver products, then there was no possibility of suing for a breach of K in May because
May hadn’t come. 2nd suit isn’t prohibited by Res Judicata.
 D argued Fraud in suit 1 and lost. Can they argue in now in 2nd suit? NO. Res Judicata – Cant bring fraud claim again.
 Can D now argue duress in signing the contract? He could’ve argued this in the first lawsuit! Some courts could say Collateral Estoppel is applicable. Other courts may
say this is a defense, different from a claim, and can be brought up. Were arguing did someone have their day in court
 P sues in November for goods that were due in May. Suing for OTHER goods that were due in May and so the P had split the COA and SPLIT damages. That violates
the principle of judicial economy. (Similar to case where P brings suit for arm and then after that suit, another for his other arm. CANNOT do that! Res Judicata)
 Margie and Mike have kid and divorce says, “One child born of the marriage, Tyler.” Margie probably can’t come in in 2018 as a defense and say, “He isn’t the dad.”
That issue is precluded. Collateral Estoppel.
o BUT If Mike wants to come in and sue saying “It isn’t my kid.” He is ALSO probably stuck. His best argument is—she lied to me (fraud). Rule 60 motion
to vacate the prior court order because of fraud.

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 o If Margie wants to sue REAL dad. Again, that issue has already been tried (“one child born of the marriage, Tyler”) so the court may say, Collateral
Estoppel. She likely knew prior and didn’t do anything.
o REAL DAD says, “I want to be a father to the kid!!” Lord Mansfield’s Rule- a child born to a married couple is the child of the husband. Dates back to the
Napoleonic Era. It is NOW possible for the REAL FATHER, not the husband, to have his day in court. If can cant bring suit for bring the father, he would
be denied his day in court and denied due process. Not applicable in AR.
o Can SON “Tyler” sue the other guy (real father) when he is 18?? YES—because Tyler hasn’t had his day in court!! Even if the other guy is dead, you can
sue his estate for inheritance rights. Rule 35- gets a paternity test!
LAW OF THE CASE DOCTRINE- Is this stare decisis?
Stare Decisis- a different lawsuit, different parties, but the same legal issue.
Once something has been decided, it cannot be decided again at that same court level. If a judge makes a ruling on a case in January and drops dead, a new judge in February will
not rule differently—that is the law of the case.

CLAIM AND ISSUE PRECLUSION

Four simple rules of preclusion
1. Can only present a claim once
a. Can’t split the claim—if you do, you lose the 2nd piece
b. Question of how you define “claim”?
2. Once legal/factual issue has been adjudicated, can’t seek to have it re-determined
a. Outsider can overturn, as a matter of stare decisis, but an insider cannot ask—even if it is demonstrably wrong (because insider is barred by preclusion!)
i. Stare decisis  idea that once an adjudication is made about some legal issue, that decision is entitled to presumptive validity in future cases,
unless you can persuade judge that there’s a good reason to go back!
b. Question of what is the quality of adjudication you need to be sure?
3. Nobody can be injured by preclusion, unless they’ve had their day in court
a. Preclusion can’t be applied unless someone has had opportunity to raise claim/have his day in court
b. Question of how you define those that are precluded, and their relationships with people outside the courtroom, who aren’t precluded?
i. To what extent do you reach inside the proceeding to the outside, to treat outsiders as though they are precluded? Think about this with regard to
class action suits
4. Law disfavors preclusion
a. Knows that if preclusion kicks in, potential for injustice is significant
b. Preclusion is a defense that must be raised early in the proceedings, or else it is presumed waived

Claim preclusion: results in the dismissal of important legal arguments without them ever being considered by a court
 HYPO: Woman is a schoolteacher in OH. She is a strong opponent of the Vietnam War. She pins a peace symbol to the American flag on her lawn. School board
sends her a letter on May 7th that they won’t renew her contract.
o Case 1: OH state court, she argues that non-renewal letter must be received by May 1 st for termination of contract for the next fall  she wins
o Case 2: 1st Amendment issue in fed court
 Def argues that she split her claim—didn’t bring up issue during the first case but she could have (OH court has general jd over 1 stAmendment
issues)
 Plaintiff argues that these are two different claims, not parts of the same claim
o How do we determine who is right?? Broader or narrower definition of a claim?
 Historically, dealt with claims as theories of recovery  each theory of recovery treated as a different, separate claim
 Theory-based pleading became fact-based pleading  definition of claim expanded, because about lumping theories together as long as there was
jurisdiction/venue
o Under theory-based system, school teacher is home free—but not under fact-based system
o Middle position  decide whether the facts give rise to one claim or two
 If proof of the same set of facts means you win on both claims, then they should be part of the same case
 Here, the liability facts of the two claims are different
o CNOF and claim aren’t the same thing
 Read CNOF as broadening the outer limits of what you can do
 Read claim more carefully—worried about mouse-trapping someone into a situation with 2 claims

Issue preclusion:
 HYPO: Plaintiff sues village for damage to car. Plaintiff wins. Plaintiff sues for damage to body.
o If those are two different claims, plaintiff clearly wins case 2, because def had his day in court and lost
 Therefore in 2nd case, def is collaterally estopped, and action in 1st case would control action in 2nd
o If there was an actual adjudication in the 1st case, and it was necessary to the verdict, that adjudication is binding on the def in case 2
 Default judgments, guilty pleas are not actual adjudications (and therefore not binding in case 2)
 HYPO: Art is arrested for selling amphetamines.
o In case 1, def pleads guilty.
o Case 2  def sues cop for damages, claims violation of the 4th Amendment (illegal search and seizure)
 This would seem to be a case of issue preclusion, because the question in the 2 nd case is whether or not the search that led to the 1st case was
illegal
 But a guilty plea isn’t an actual adjudication, so can’t apply preclusion rules

 Preclusion locks in a result once damages have been paid  doesn’t matter how certain you are that judgment is wrong (barring fraud)
o Res judicata: used to apply to both claim and issue preclusion, often without guidance from judge
 But really means claim preclusion, when used precisely
o Collateral estoppel: used to apply to issue preclusion
 But don’t use res judicata and collateral estoppel—use claim and issue preclusion terminology
 Preclusion is the end of the line chronologically
o Has a relationship to the joinder material, often applied in the context of party and claim joinder
o Also bears on class actions

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  Park Lane Hosiery: phenomenon of non-mutual collateral estoppel  ability of a stranger to take advantage of a private determination against someone who had his
day in court
o Action 1: SEC v. Parklane—SEC wins, Parklane loses (injunction, no jury trial)
o Action 2: Investors v. Parklane—investors win
 Jury trial right
 Collateral estoppel is permitted here  these strangers, who weren’t in the 1st action, are allowed to take collateral estoppel effect from the
decision in action 1 (that Parklane was responsible)
 This is allowed because the presence of the investors was clearly known at the point of the 1 st action
 There’s an additional aspect that since action 1 is an SEC prosecution under securities laws, investors can’t intervene on it
o This is annoying—allows people to sit on sidelines, watch at no risk

PERSONAL JURISDICTION Q:
Does Arkansas court have jurisdiction over the defendant?
Arthur, a citizen of Illinois, has never been to Arkansas in his life. Comes to Arkansas for a football game and gets in a car wreck. He then immediately drives home to Illinois.
Driver of other car sues Arthur.
 Yes. Arkansas has Specific Jurisidiction over Arthur. Claim is related to D’s activity in the state.

Harriet slips and falls in home Depot in Florida. Harriet sues Home Depot.
 Yes. Arkansas has general jurisdiction over Home Depot. They have continuous and systematic contacts in all 50 states.

Ontario Chainsaws Corp., a Canadian corp., sells chainsaws to a single distributor in Minnesota and they participate in a trade show in Las Vegas. One ends up in Arkansas and
user sues from injury.
 No. Macyntre Case. Unreasonable, not forseeable that their product would end up there. Mere awareness that it could end up there is not enough.

SERVICE OF PROCESS Q:
Was service properly accomplished under FRCP AND the constitution?
Suit filed June 1. A law clerk leaves papers with D’s 13 year old daughter on September 9.
 No. After 90 days. 4(m). Otherwise, it may be fine as long as the 13-year-old is “of suitable age and discretion” 4(e)(2)(b)

Leaves papers with the woman cleaning the apartment on August 25.
 No. Within 90 days but person left with must reside there. 4(e)(2)(b)

Sherriff papers with defendant at gymnastics meet on September 15.

 No. After 90 days. Otherwise, personal service on the defendant, no matter where it is, WORKS.

Leaves summons over the phone to defendant.

 No. Must do one of the ways under 4(e)

Private process server leaves papers with Defendant’s executive assistant at Starbucks on August 15.
 No, defendant in this suit isn’t a corporation. For an individual, service must be one of ways under 4(e).

Also remember: person who serves the papers must be over 18 and a non-party to the suit.

General Jurisdiction question:

Evaluate these two situations and the conclusions. Which are correct?
Flora Florida sues Tex Texas in Florida. Tex doesn’t believe he is subject to the power of the Florida ct and files a motion objecting to jurisdiction. Florida denies the motion
and eventually enters a judgment against him. Flora brings the judgment to Texas to register and enforce it. CONCLUSION: Full faith and credit does not apply. Tex may now
object to Florida’s power of him.
 CONCLUSION IS INCORRECT: Tex must have raised the issue of Florida’s personal jurisdiction on appeal IN FLORDIA. (Baldwin v. Iowa State
Traveling Mens Ass’n).
Sally South Carolina gets in a car accident in Washington DC with a DC citizen. She brings a lawsuit in Federal Court claiming: $20,000 for medical bills, $20,000 for lost
wages, and $160,000 for pain and suffering. CONCLUSION: The federal court has subject matter jurisdiction over the claim.
 CONCLUSION IS CORRECT: The amount in controversy is over $75,000 and even if the pain and suffering claim is questionable, the claim by the
plaintiff is controlling if made in good faith.

Pendent, supplemental and removal jurisdiction Q:

Which conclusion is correct?
Molly Montana sues Ike Idaho in federal court. In count one of the lawsuit she claims $25,000 for violation of a federal statute; in count two she seeks $18,000 in damages on
an unrelated state claim.
 NO. Lawsuit is NOT properly brought in federal court. Claim must be RELATED to claim to supplement. An unrelated claim MAY be brought BUT it
must independently have SMJ if it is unrelated.
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Florence Florida Sues George Georgia in federal court. She seeks $8,000 for violation of a federal statute . In the same lawsuit, Tom Tennessee sues George Georgia for a
$30,000 related state claim.
 YES. Lawsuit IS properly brought in federal court. 1367(a) allows claims or parties to be added if they are RELATED to the original claim.

Three adult brothers (Terry, Taylor and Tyler) from Texas were injured in an automobile accident caused by Nora New Mexico. Terry claims $80,000, Taylor claims $10,000,
and Tyler claims $22,000. They bring one lawsuit in federal court.
 YES. Lawsuit IS properly brought in federal court. As long as one P’s claim meets the amt. in controversy, other parties may be supplemented in. Exxon.
Here, Terry’s claim is >75K.
Patricia Pennsylvania sues Kelly Kentucky in state court in Kentucky on a state law claim and seeks $80,000. Can D remove the suit to federal court?
 NO. Defendant cannot remove for a diversity suit IF the suit was brought in their home state! Here, Kentucky is where D is from so she cannot remove.

Rule 14 -Third Party Complaint Question:

A, B, and C are all parties to contract worth $95,000. A is from Tennessee. B and C are from Georgia. A sues B in federal court for $95,000. B files a third party
complaint against C seeking $65,000 for a claim based on original contract. (A v. B v. C)
Are these additional claims allowed?:
C files a claim against A for $41,000 based on the original contract.
 YES that is allowed. Rule 14(a)(2)(c) says that the third-party defendant (C) must assert any claim against the original plaintiff (A) if it ARISES OUT OF
SAME TRANSACTION/OCCURANCE. (compulsory counter claim – get supplemented in since > 75K)
A files a claim against C for $82,000, alleging slanderous statements by C.
 YES that is allowed. This isn’t allowed under Rule 14 because 14(a)(3) says the plaintiff can only bring claims against the third-party defendant that arise
out of the same transaction or occurrence and here, slander isn’t related to the original breach of contract claim HOWEVER:
 Rule 18 says a party can join as may claims as it has against an opposing party + Rule 82 says courts must have jurisdiction and here, the claim
individually has diversity jurisdiction because they’re from different states and the amount in controversy is over $75K.

Discovery- Oral Deposition Question:

Annie is a citizen of Washington. She was injured by a truck owned and operated by Big Log Cabin, an Oregon Company located in Portland. She brings a lawsuit in
federal court at a courthouse in Tacoma (closest to her home in Aberdeen). Pursuant to rule 30, she sends formal notice to the lawyer for Big Log, scheduling a
deposition of the defendant’s truck driver in Aberdeen at the attorney’s office in 25 days. Notice said it would be video recorded. He is instructed to bring his driver’s
license and prescription glasses.
Were there any mistakes with scheduling or taking the deposition?
 NO. No mistakes were made
o Reasonable written notice was given.
o You don’t need a trial judge’s permission to depose someone
o A subpoena isn’t REQUIRED but is useful to compel a person’s attendance.
o You can compel a person to bring certain things.
o Its required to notify how it will be recorded but the attorney may choose any means
o You can depose someone anywhere within 100 miles of where they live.

Default Judgment Question:

Anna brings a suit in federal court against Blackhawk Trucking Co. She files a complaint on July 1. Defendant is served on July 9. On July 24, she learns Blackhawk
hasn’t filed anything and Anna requests that the clerk enter a default judgment. She schedules a court hearing to seek a judgment. 3 days later, on the 27th, Anna
presented evidence to the judge and the judge entered a judgment for $86,000 against Blackhawk. Blackhawk wasn’t present at the hearing on the 27th.
Does Anna have a valid judgment?
 NO. The defendant has 21 days to answer from the day they are served so they had until July 30. Default was entered prematurely.

Jury Question:
Which of the statements are correct about federal civil litigation?
The constitution guarantees each civil litigant a jury that is a cross section of the community.
 WRONG. The JURY (12) is not guaranteed to be a cross section of the community, only the JURY POOL.
Exercising a peremptory challenge, the lawyer removes a Muslim juror solely for religious reasons. The removal must be justified on religious-neutral grounds.
o WRONG. Preemptory challenges do NOT need to be justified (they can be for any reason or no reason at all). The only exception is when they appear to
be because of GENDER or RACE – then they need to be justified on race-neutral or gender-neutral grounds.
A citizen of Washington who moves to Arkansas in June to attend law school, registers to vote in Arkansas in July, and votes in Arkansas in November is thereby eligible to be
a juror in federal court in Arkansas in December.
o WRONG. A person is eligible to be a juror 1 year after they have registered to vote in a state.
Exercising all her peremptory challenges, the lawyer removes every juror who has a Hispanic name. This use of peremptory challenges violates Equal Protection.
o WRONG. Its only violates equal protection if the reason is gender or race. (Hispanic is a nationality, not race). Also, there's no objection for certain
surnames.
Objections to proposed jury instructions must be made before the trial begins.
o WRONG. Objections must be made just before the jury is impaneled.
o
Appeals Question:
Is there a final motion that can be appealed?
Defendant files a 12(b)(1) motion, which was granted.
 FINAL. Judgment is final because there is nothing left for the trial judge to do.
Defendant files a 12(b)(1) motion, which is denied.
o Judgment is NOT final because if the motion is denied, the trial will continue.
Defendant filed a 12(b)(6) motion, which was granted without leave to amend.
o FINAL. Judgment is final because there is nothing left for the trial judge to do.

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 Defendant filed a 12(b)(6) motion, which was granted with leave to amend given to the plaintiff.
o Judgment is NOT final because it can be amended and trial can continue.
Defendant objected to discovery of certain documents and the trial court agreed with the defendant
o NOT a final judgment because the trial will continue. This is a ruling on discovery, not a final judgment.
Defendant filed a Rule 56 motion, which was granted.
 FINAL. Judgment is final because there is nothing left for the trial judge to do.
Defendant filed a rule 56 motion, which was denied.
 Judgment is NOT final because if the motion is denied, the trial continues.
Defendant filed a Rule 56 motion, which was granted only as to liability.
 Judgment NOT final because it was only granted as to liability and there still needs to be a judgment on damages.

Res Judicata Question:

Can 2nd suit be brought?
P sues for a broken left arm WINS. P sues for broken leg.
 Barred by Res Judicata. First suit was final judgment on the merits, assume there was proper jx, assume it was fully contested in good faith, SAME
CLAIM “negligence”, Same people. This is merger because it merges with first suit. D file 8(c) affirmative defense.
P sues for a broken hand. LOSES. P sues for broken neck. (P has split claim in half)
 Barred by Res Judicata. First suit was final judgment on the merits, assume there was proper jx, assume it was fully contested in good faith, SAME
CLAIM “negligence”, same people. This is “bar” because it is barred by the first suit. D file 8(c) affirmative defense.
2 cars collide. D ran a red light (negligence), jumps out and punches P (assault), D calls P a big fat liar (slander). P sues for negligence and wins. Now sues for assault.
 Judge is likely to say the claims came from the same transaction (COA: transaction test) and should have been tried together.
 D attorney would file 8(c) affirmative defense and claim assault is from same incident. P’s lawyer will say it is a different cause of action and is not barred
by res judicata.

Complaint and Summons

 Step 1: Plaintiff files a Complaint (FRCP Rule 3)
 Step 2: Defendant is served with the Summons and Complaint (FRCP Rule 4)
 Defendant's Response
 Step 3: Defendant may file:
o Motion to Dismiss (Rule 12(b)) or
o Answer (FRCP Rule 8)
 Pretrial Procedures
 Step 4: Discovery Process (FRCP Rule 26-37)
o Interrogatories, Depositions, Requests for Admissions, Requests for Documents
 Step 5: Motions to Compel or Motions for Protective Orders (FRCP Rule 37)
 Step 6: Pretrial Conference (FRCP Rule 16)
o Discussion of settlement, scheduling of trial, and potential motions
 Motion Practice
 Step 7: Summary Judgment Motions (FRCP Rule 56)
 Step 8: Motions in Limine (to exclude evidence) (FRCP Rule 103)
 Trial
 Step 9: Trial Procedure (FRCP Rule 38-53)
o Jury trial or Bench trial
 Step 10: Judgment (FRCP Rule 54-58)
 Posttrial Motions
 Step 11: Motion for Judgment as a Matter of Law (FRCP Rule 50)
 Step 12: Motion for a New Trial (FRCP Rule 59)
 Step 13: Motion for Relief from Judgment (FRCP Rule 60)
 Appeals
 Step 14: Appeal to Court of Appeals (FRCP Rule 4)

Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses;
Pretrial Hearing

(a) TIME TO SERVE A RESPONSIVE PLEADING.

(1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:
(A) A defendant must serve an answer:
(i) within 21 days after being served with the summons and complaint; or
(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after
it was sent to the defendant outside any judicial district of the United States.
(B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the
counterclaim or crossclaim.
(C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different
time.

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 (2) United States and Its Agencies, Officers, or Employees Sued in an Official Capacity. The United States, a United States agency, or a United States
officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on
the United States attorney.
(3) United States Officers or Employees Sued in an Individual Capacity. A United States officer or employee sued in an individual capacity for an act
or omission occurring in connection with duties performed on the United States’ behalf must serve an answer to a complaint, counterclaim, or
crossclaim within 60 days after service on the officer or employee or service on the United States attorney, whichever is later.
(4) Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows:
(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice
of the court’s action; or
(B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite
statement is served.

(b) HOW TO PRESENT DEFENSES. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a
party may assert the following defenses by motion:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19.
A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not
require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more
other defenses or objections in a responsive pleading or in a motion.

(c) MOTION FOR JUDGMENT ON THE PLEADINGS. After the pleadings are closed—but early enough not to delay trial—a party may move for judgment
on the pleadings.

(d) RESULT OF PRESENTING MATTERS OUTSIDE THE PLEADINGS. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are
presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable
opportunity to present all the material that is pertinent to the motion.

(e) MOTION FOR A MORE DEFINITE STATEMENT. A party may move for a more definite statement of a pleading to which a responsive pleading is
allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading
and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days
after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.

(f) MOTION TO STRIKE. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The
court may act:
(1) on its own; or
(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the
pleading.

(g) JOINING MOTIONS.

(1) Right to Join. A motion under this rule may be joined with any other motion allowed by this rule.
(2) Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another
motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.

(h) WAIVING AND PRESERVING CERTAIN DEFENSES.

(1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2-5) by:
(A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or
(B) failing to either:
(i) make it by motion under this rule; or
(ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.
(2) When to Raise Others. Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense
to a claim may be raised:
(A) in any pleading allowed or ordered under Rule 7(a);
(B) by a motion under Rule 12(c); or
(C) at trial.
(3) Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.

(i) HEARING BEFORE TRIAL. If a party so moves, any defense listed in Rule 12(b)(1)–(7)—whether made in a pleading or by motion—and a
motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial.
D. Legal and factual sufficiency
o 12 b 6 – failure to state a Cause of action

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§ Critical for testing legal or factual sufficiency
§ Possibility of ending the case before discovery
§ A complaint can fail to allege sufficient facts to give adequate notice of
the claim or it can fail to allege a valid legal theory
§ Courts must assume all allegations are true
o Dioguardi
§ 12 (b)6 motion is a “mere formal motion” directed only to the face of the
complaint
§ No need to state “facts sufficient to constitute a cause of action”
§ Enough that D can figure out what the claims are about
o Conley- No set facts rule-
§ Importance of giving “fair notice “ to D
§ “ a complaint should not be dismissed for 12 (b)6 unless it appears
beyond doubt that the P can prove no set of facts in support of his claim
which would entitle him to relief
§ Statement was more symbolic than literal
o Twombly- complaint must be plausible, not possible in complex litigation
§ To win, allege and prove parallel conduct plus agreement
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• Conscious parallelism- no one competed with anyone else for
local service
• Agreement: inferred forum failure to compete and statement that
competition would not be right
§ Holding: Conley’s no set of facts rule is not good law and that P must
make allegations that Plausibly suggest an agreement
• P must prove more than labels and conclusions
• Must be enough to raise a right to relief above the speculative
level
• Does not impose “probability requirement”-simply requires
enough facts to raise a reasonable expectation that discovery will
reveal evidence of illegal agreement
• P allegation must beyond “the line between possibility and
plausibility”
o IQBAL-
• Claims required proof of intent to discriminate (cannot prove
without discovery)
• Discard all legal conclusions as irrelevant in order to consider all
conclusions supported by facts
• Plausibility
- not plausibility is there are “obvious alternative
explanations”
- depends on judicial experience and common sense
b. Rule 10: Form of pleading
i. Each party must have a caption with court’s name, title, file number,
and designation, naming all parties, must be signed by a least one
attorney (Rule 11)

 SUPPLEMENTAL JURISDICTION:
 allows any claim to come into federal court as long as it is SO RELATED to a claim over which the district courts have original
jurisdiction.
 §1367(a): Power
 In any civil action in which the federal district courts have original jurisdiction, the federal court has supplemental jurisdiction over all
other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy
under Article III. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.”
 Common nucleus of operative fact
 §1367(b): Restrictions on Diversity Cases
 “In any civil action of which the district courts have original jurisdiction founded solely on diversity or alienage jurisdiction, the district
courts shall NOT have supplemental jurisdiction over
 Claims by plaintiffs against persons made parties under Rule 14 (impleader/TPD), Rule 19 (compulsory/required joinder; necessary
and indispensable parties), Rule 20 (permissive joinder), or Rule 24 (intervenors)
 Claims by persons proposed to be joined as plaintiffs under Rule 19 (required joinder), or seeking to intervene as plaintiffs under Rule
24 (intervenors)
 When exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of
diversity/alienage jurisdiction.”
 §1367(c): Discretion
 The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if—
 1) the claim raises a novel or complex issue of state law
 2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction
 3) the district court has dismissed all claims over which it has original jurisdiction, or
 4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.”

Trial judge needs to apply correct law, jury determining facts-substantial 40%

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Vertical Conflicts of Law
Case Dispute Which Test? Logic?
Law?

Erie PA law (trespass) or Fed law. State States statutes AND common law 1. Original interpretation was wrong
Standard of care to a trespasser controlled in a diversity suit...swift was 2. Defective/benefits didn’t accrue
wrong 3. Constitution (state rights
Fed or state common law?
Substantive v. Procedural

York Statute of limitations (is it State Outcome Determinative Test Outcome should be substantially the same
substantive?)

Byrd Judge (state) or jury (fed) trial? Federal Balancing Test: 1. Rules/practical stuff given less weight
(compared to statutes)
State rules v. Fed policy? State practice vs. Fed Affirmative 2. Strong Fed policy can outweigh weak
countervailing measures test state policy
3. If probably the same result, you’re
good

Case Dispute Which Test? Logic?

Law?

Hanna Service and process: the papers were left with Fed Modified Outcome Det. Test → • Only apply Erie when it:
spouse of deceased at home… • 1) directly affects forum
shopping and
State statute: needed to be left with the • 2) is about a substantial diff.
executor... in Fed and state law, not just
Federal Rule Analysis: → a trivial or procedural one
Fed requirement: papers left with person of • When there is a fed procedural rule,
suitable age/discretion enacted properly, we presume it is
valid and controls (necessary & proper
Fed or state procedure? clause)

Horizontal (state) Conflicts of Law

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Case Dispute Which Test? Logic?
Law?

Paul v. National Which law do you apply when Lex loci delicti: Apply the law of the land where the wrong took
Life there is a conflict between states? place…unless it goes against strong state policy.
Choice-influencing Consideration 1) predictability of results;
(Leflar Test): → 2) Maintenance of interstate or international order;
3) Simplification of the judicial task;
4) Advancement of the forum’s governmental interests;
5) Application of the better rule of law

Case Dispute Which Law? Test? Logic?

Klaxon Which state’s “conflict of law” rules Forum state’s conflict of law rules should determine whether Federal courts should follow the
should you use? to follow state law or some other law state determinations of conflict of
law

Webber v. What law does a federal court use if If no state law on topic: 1) Do what state SC would do
Sobba there is no state law? 2) Look at restatement
3) SC from other states
4) State trends on topic
5) Public policy

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