Civil Procedure Outline I.

Reasonable Notice – Rule 4 --Due Process - reasonable notice and opportunity for hearing at a meaningful time --personal v. mail, actual v. constructive Mullane v. Central Hanover Bank & Trust Co. Facts: Before settlement of its first account, the only notice given beneficiaries was by publication in a local newspaper in compliance with the requirements of NY banking law. Decision: The statutory notice to known beneficiaries is inadequate, not because it fails to reach everyone, but because under the circumstances it is not “reasonably calculated” to reach those who could easily be informed by other means (by mail). This does not apply to any beneficiaries whose interests or addresses are unknown. US v. Brand Jewelers Decision: US brought suit to prevent D from systematically obtaining default judgments against people by the process-server disposing of the papers and making a false affidavit of the service. D knew that the process-server was not using “reasonably calculated” methods to serve notice. Wyman v. Newhouse Facts: P lured D into jurisdiction (FL) by sending him false letters claiming she was in love with him. When he arrived at the airport, he was served with process. Decision: Service is invalid when D is fraudulently lured into the jurisdiction. Contrast to Gumperz v. Hofmann Argentine doctor vacationing in NYC lured out of his hotel room for an “interview” by the processserver. Actions calculated to facilitate service on a party already in the jurisdiction are valid. II. “Some kind of a hearing” - Pre-Service Remedies --policy – protect against arbitrary and mistaken deprivations of property, predicate for enjoyment of property, arrive at truth of matter through notice of the case against him and the opportunity to meet it, lack of equal bargaining power is unfair to poor people, system to retrieve goods doesn’t work, malicious – Rosa Washington example that person could replevy because he’s mad and crazy --Doehr’s Three-Part Test – weigh the (1) private interests of person affected by the prejudgment measure, (2) the risk of erroneous deprivation through the procedures and the probable value of additional or alternative safeguards, and (3) interests of the party seeking the prejudgment remedy and governmental interest in the procedure --a prior hearing may be postponed where extraordinary circumstances justify the delay (Fuentes, governmental necessity or public good), or where sufficient additional safeguards are present (Mitchell) Fuentes v. Shevin Facts: Firestone claimed P was in default, filed a suit in small claims court and was granted a writ of replevin before P was notified of any complaint against her. Decision: The prejudgment replevin procedures violate the 14th amendment because they do not require the applicant to make a convincing showing before the seizure that the goods are “wrongfully detained,” nor allow for notice or a hearing “at a meaningful time.” Sniadach – because wages are a “special type of property,” prejudgment garnishment is a violation of due process Mitchell distinguishes Fuentes because the statute reduces the risk of a mistaken seizure by requiring a verified affidavit before judge and a bond, which is suited for the questions of the existence of a vendor’s lien and the issue of default. Di-Chem – Even cases dealing with the commercial setting and parties of equal bargaining power are subject to notice and hearing limitations. Doehr -It is impossible to determine who will eventually win the lawsuit for the assault and battery making the risk of error unreasonably high, especially because P does not have a pre-existing claim to the property.

“Minimum contacts” – p jn so long as it “does not offend traditional notions of fair play and substantial justice” (1) “Purposeful availment” focuses solely on the activities of D • Voluntary action by D establishing (beneficial) relationship with forum • protects D against burden of defending in a distant forum • ensures that States don’t reach out beyond their limits (2) “Reasonableness” – whether exercise of jurisdiction in the state is reasonable. Forum state may assert personal . providing forum --Long-arm statutes . it does not discriminate toward nonresidents. D and state • Relative burdens on P and D • Interest of state in regulating the activity. D could not waive personal jurisdiction because it would interfere with state sovereignty. and were injured when their car caught fire after an accident in OK. American Radiator Facts: P’s water heater exploded and injured her in her home in Illinois. Washington Facts: P-Wash is suing D for late payments to the unemployment compensation fund. Decision: Because the implied consent is limited to proceedings growing out of accidents. and it would be an undue burden/unexpected for D to be haled into court there. he submits to state’s personal jurisdiction for any suit arising out of the act --ensures state residents can recover for wrongs committed by out-of-staters because of expanding national economy --Insurance Corp of Ireland – the principle requirement for personal jurisdiction is the due process clause. Neff – state’s jurisdiction is limited to persons within the state and a party cannot summons a person in another state (federalism). Personal Jurisdiction (A Second Face of Due Process) --can the person be brought before the court? A.III. Decision: The state long-arm statute granted personal jurisdiction through statutory interpretation because the tortious act was committed in Illinois (the explosion). P-Mass resident was injured in a car accident by D-PA resident. Otherwise. World-Wide Volkswagen Corp. not NY where the accident took place. Decision: D does not have minimum contacts with forum state because D does not do business in OK. constructed the water heater’s safety valve. and IL is a reasonable forum because most convenient location for trial. Intl Life Ins – a single contract between the parties was sufficient to satisfy the “minimum contracts” test Gray v. Contrast to Feathers. D was notified of the suit pursuant to Mass long-arm statute. focus on interests of P. D’s sales agent was personally served in Washington. not federalism. v. and a copy of notice was mailed to D’s address in Missouri. received benefits of the laws within the state. Bad old days: Pennoyer v. Woodson Facts: P-NY residents purchased a car in NY.when D commits an act in the long-arm statute. company based in Ohio. Highwater mark: McGee v. v. Key Case: International Shoe Co. Decision: D had systematic and continuous contacts with the state with its sales agents and business across state lines. where the court holds that the tortious act was committed in KS where the faulty tank was manufactured. The “foreseeability” that is critical to the due process analysis is whether D’s conduct and connection with the forum state are such that he should “reasonably anticipate” being haled into court there. and the suit arose out of these commercial activities. P sued the manufacturer and dealer (NY residents) in OK. D. Pawloski Facts: In Mass. Transition: Hess v. Minimum contacts – the transaction had a substantial connection with the state.

Hustler Facts: P-NY resident brought a libel suit against D-Ohio corporation in NH. Burger King Corp.jurisdiction over D that “delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in that state. Decision: The question is whether Hustler satisfies the minimum contacts test. Ds included Cheng Shin. might create a new writ or would be out of luck --System of pleading: --Single issue pleading – must decide which issue is strongest. a commercial actor. v. but bring a defense]) --Court system was designed to handle relatively easy issues. Contrast to Asahi Metal Industry Corp. set forth claim 3 times. Decision: Asahi did not satisfy the “minimum contacts” test because it was not directly aware that by selling tire parts it would be haled into court in CA. direct phone/mail communications. Rudzewicz Facts: D-Mich businessmen contracted with P-FL corp to run a franchise in Michigan. upon written pleadings.remedy – injunctions --Equity courts in the Victorian Era – redundant. Contrast to Keeton v.” The unique burdens placed on D who must defend himself in a foreign country and legal system outweighs the reasonableness of stretching the long-arm statute. Common Law & Equity --Feudal courts judged by Lords. however. the manufacturer of the tube’s valve in Taiwan.” but ends with the retail purchase. peremptory (on the merits – traverse [denied truth of declaration] or confession and avoidance [admit the allegations. heard issues between tenants --Royal courts judged by King. IV. -. heard issues concerning royal law and issues between his tenants --Writ Process – feudal tenant would have to approach the King and state that the feudal courts had violated the King’s justice to get a writ to “summon” a person to the Royal courts --Forms of Action – had to approach the agent of Chancery with the type of case to be brought. the manufacturer of the tube in Japan and Asahi. Discussion: Satisfied the “minimum contacts” test because D. Hustler satisfied the “minimum contacts” test because they sold a significant number of magazines in NH. if not. during oral arguments could take informal clues from the judge about what’s working. D could either demur or plead: --Demurrer – challenged the legal sufficiency of the declaration --Plead – dilatory (did not deny merits but challenged P’s right to have the court hear the case) v. one would be issued. Stream of commerce (“plus”) must be an action “purposefully directed” toward the forum state evincing “an intent or purpose to serve the forum state. the single issue became more technical and difficult --Declaration – set forth P’s claim. course of dealing over the 20 year agreement. created a long-term relationship with P-forum resident where a contract existed between the parties. contract specified FL law as choice of law. if it fit an existing writ. --Equity court: --Chancery heard cases that couldn’t be solved by common law --Cases were started after the Chancellor considered the “bill” and orders the adversary through a “subpoena” to come before him and answer the complaint. not whether P had a significant contact with the forum state. Facts: P purchased a motorcycle in CA and was injured in an accident when the tire blew out. interrogatories/evidence written down beforehand and submitted to court to ask questions --Equity courts in colonial America --North – distrustful of British – didn’t like equity courts --South – happy with British – happy with equity courts .

citizen of the US and a domiciliary of the state (“intent to remain”). § 1367 Supplemental Jurisdiction --(a) if a federal court has federal question jurisdiction. P were students studying in LA.000 Mas v. “Citizenship” . and send a copy to the other parties and the state court within 30 days after the case becomes removable . Decision: The main issue was a contract dispute that had secondary constitutional and statutory defenses. D breached the agreement pursuant to federal statute. it may choose to hear all related claims that “form part of the same case or controversy” --Standard: (i) substantial federal claim – the federal claim must be sufficiently substantial to support federal question jurisdiction (ii) “common nucleus of operative fact” (iii) state and federal claims are such that it would ordinarily be expected to try them all in ‘one judicial proceeding’ --(c) state claim may be dismissed (to re-plead in state court) .if state claim constitutes the real body of a case. § 1331 Federal Question --“Well-pleaded complaint rule” – federal questions raised by an answer to a complaint / anticipatory defense are not sufficient --where federal law is an element of a state law claim.V. § 1441 Removal --if P files in state court. to which the federal claim is only an appendage. supplemental jurisdiction was valid. D. D can remove the action to federal court of the state at the outset of the case (with the primary exception of local D in diversity) --the only way D can get himself into federal court. Gibbs Facts: P-employee claimed D-union violated federal labor laws and committed state tort of interference with contract arising out of the same series of actions. P was injured on D’s railroad. -. C. but could originally have filed in federal court. see rule book for other circumstances --necessitates an “important countervailing interest” --promotes judicial efficiency/consistency and reduces the “chilling effect” because all claims are disposed of in one litigation United Mine Workers v. Decision: Even though by the time the case went to trial all the federal claims had fallen out of the case. federal question jurisdiction ONLY where it is important to the outcome of the case Mottley Facts: Both parties are citizens of KY. B. which does not satisfy federal question jurisdiction.A federal claim can NEVER be remanded to state court once removed! --§ 1447 Procedure after removal generally --D must file a notice setting forth the facts supporting removal. Decision: Must have diversity of citizenship at time of complaint filing. D-landlord installed 2-way mirrors to spy on P-tenants. Perry Facts: P-citizens of MS and France and D-citizen of LA. and as part of settlement D agreed to grant P’s free rides for life. § 1332 Diversity of citizenship --complete diversity (Strawbridge) and at least $75. Federal Subject-Matter Jurisdiction --can the court hear the claim? --CANNOT waive subject-matter jurisdiction (Mottley) A.

§ 1404(a) Federal Change of Venue (a) For the convenience of parties and witnesses. The state venue statute required a diversity action be brought in a judicial district where P or D resides. Ford Facts: P. a district court may transfer any action to any other valid district Hoffman v. any district in which a D resides (2) district in which a substantial part of the events occurred (3) if no other venue is applicable. C. receipt of the collection notice was a “substantial part” of the events giving rise to the claim. C & S Adjustors Facts: D-collection company mailed a collection notice to P at his PA address. US Sup Ct held that D cannot move to transfer the action to a state where P could not originally have brought the case. then a district in which any D is subject to personal jurisdiction --in all other cases. P’s choice of forum should prevail . Blaski . B. The court rejected the argument that D had impliedly consented to a waiver of his federal venue objection by driving into KY because the state long-arm statute does not include waiving venue objections. Where there is a single injury for which relief is sought. Forum Non Conveniens --even when personal jurisdiction and venue are proper. courts may decline to exercise jurisdiction on the ground that the location P selected is grossly inconvenient (Gulf Oil) --first.West Mifflin v. Decision: Because D allowed receipt of the letter at another address by not marking the notice with instructions not to forward.P-rr company brought suit in state court against D-citizen of IN because D caused the derailment of P’s train. D moved for a change of venue to another county within Montana. Bates v. and can remand only the state law claims. including a § 1983 violation. brought patent infringement action in Dist Ct against D-Texas corp. courts must determine that an alternative forum exists --Unless the balance is strongly in favor of D. Olberding v. D-municipal removed the claim to dist ct based on the § 1983 violation. Illinois RR Co . Lancaster Facts: 2 men were repeatedly accosted by security guards at the mall. then a district in which any D is subject to personal service --majority rule is that (a)(3) and (b)(3) are the same --Corporations – reside in any district in which it is subject to personal jurisdiction (“minimum contacts.P-Illinois resident. § 1391(a)-(c) Federal Venue --to protect D from an unfair or inconvenient trial location --if venue is invalid. principle place of business) Burlington Northern RR v. They filed a 7-count complaint. then there is no separate or independent claim under § 1441(c). venue may be: (1) if all D reside in the same state. venue may be: (1) if all D reside in the same state. sued D-employer in state court. then court may transfer to a valid venue --if diversity jurisdiction. P alleged violations of the Fair Debt Collection Practices Act. Dist Judge Lancaster remanded the entire case to state court. and it was forwarded to his address in NY. 2 employees.” incorporated. any district in which a D resides (2) district in which a substantial part of the events occurred --location of evidence and witnesses relevant (3) if no other venue is applicable. despite D’s willingness to waive any future venue or personal jurisdiction objections. Decision: § 1441(c) provides for removal or remand only where the federal claims are “separate and independent” from the state law claims with which they are joined in the complaint. VI. Decision: In striking the balance between the parties’ interests. in the interest of justice. and dist ct must retain the federal claim. D moved under § 1404(a) to transfer to the dist ct in Illinois. where it claimed to have its principle place of business. a state may decide that a nonresident D’s interest in convenience is too slight to outweigh P’s interest in suing in the forum of his choice.

Decision: Overruled Swift v. and (2) does not “abridge. and that the actual purpose was to ensure that federal courts would apply state statutory and common law. so long as they do not modify any substantive right --Modified Erie test: (1) is there a “true conflict” where both federal and state rules of law apply and cannot be harmonized? (2) what is the source of the federal rule of law? --constitution always prevails --federal statutes govern so long as arguably procedural --FRCP – governs if. Swift’s interpretation was unconstitutional in that (1) legislative history showed the construction was wrong.--Normally reserved where D is international. view of premises. and P sued in federal court. The plane was owned and maintained by British company. state substantive and federal procedural law are followed --often arises in diversity / supplemental cases --Rules Enabling Act – gave the Sup Ct the power to create federal rules of civil procedure. D refused. Tompkins Facts: While P-PA citizen was walking along a footpath running parallel to D’s railroad tracks (NY based rr). whereas under majority rule he would be able to recover. pursuant to the Rules Enabling Act. The plane was manufactured in PA. Reyno Facts: Plane crashed in Scotland and the pilot and several passengers died. regimes of applicable law (Hanna v. The speculator gave the instrument to P-Maine banker. Decision: The balancing test weighs in favor of venue in Scotland. procedure or evidence). The Rules of Decision Act is strictly limited to local statutes and usages. and operated by Scottish air taxi service. Decision: Federal courts exercising diversity jurisdiction should not apply the common law of a state. who sought payment from D. availability of witnesses. Brought suit in US because strict liability and negligence law would allow for a larger remedy.” VII. Key Case: Erie RR Co v. so he brought suit in federal court with diversity jurisdiction. Under PA law. holding. Erie Question --Rules of Decision Act – state law shall be used in cases where it applies --in state law matters brought in federal courts. and possible . and possibly outcome-affecting. local interest in the matter. P would be regarded a trespasser. Don’t dismiss if the choice of law makes the remedy “clearly inadequate or so unsatisfactory that it is no remedy at all. and should govern local disputes (real estate). and inequitable administration of the laws by providing different. enlarge or modify any substantive right” --judge-made law – should not govern if it will encourage forum shopping between state and federal courts. The plane wreckage is in England. except in matters governed by the constitution or by acts of congress. Tyson. jury duty. he was struck by a door protruding from the train and his arm was severed. a federal court should follow applicable state common law principles rather than its own “general” common law. untangling the conflict of law Piper Aircraft v. Tyson Facts: D-NY resident gave a negotiable instrument to a speculator to purchase some land in Maine. Plumer) Bad old days: Swift v. (2) lack of uniformity between state and federal courts. only dismissed if proper forum is a foreign country Factors: (1) Private interest of the litigant: access to proof. D moved to dismiss for forum non conveniens. expeditious and inexpensive (2) Public interest: administrative difficulties. practical problems making trial easy. the law is (1) “arguably procedural” (dealing with practice. Propellers were manufactured in Ohio.

(2) --Risks of weak preclusion doctrines: • Judicial efficiency .discrimination depending on the forum. Harlan’s concurrence: “Primary decisions of human conduct” VIII. L2 – Her suit for damages from personal injuries is claim precluded because same set of facts and could have been brought .” Ragan – Rule 3 not intended to govern questions tolling of statute of limitations. Cohen – Federal court must apply a NJ statute even though Rule 23. Byrd v. balanced by whether the state rule “concerns merely the manner or means” to recover. was valid and controlling. the court held the Rules are to be applied in federal courts unless they violate the constitution or the Enabling Act itself.1 did not require a bond because the statute created substantive liabilities for expenses.Following Rule 4(d)(1). After enacting the Rules Enabling Act. “Outcome determination” test – will application of the federal law instead of state law affect the outcome of the litigation.Res Judicata -. rather than personal service required by state law. York Issue: Whether. Plumer . Decision: The federal rule applies (issue goes to the jury) through the “interest balancing” test: (1) whether the state procedural practice is (“bound up with”) an integral part of the state substantive right. Decision: Statutes of limitations have strong substantive overtones because they provide for “repose” from suit. Rule 41(a)(1). Semtek – Apply state claim preclusion law in diversity cases. and (3) “outcome determination. and (3) unconstitutional because doctrine of “enumerated powers” did not confer on the federal judiciary the ability to create general common law. Current Rule: Hanna v. Blue Ridge Electric Cooperative Issue: Whether federal or state law should govern the manner of determining a state law issue on supplemental jurisdiction (the status of an outside contractor’s employee under a workers’ comp law). not Rule 41. Claim Preclusion . judgment for D L2 – assault / malice prosecution against race track – claim precluded because parties “in privity” .answers question whether claim of L2 is barred by L1 --Elements of claim preclusion: • Same parties involved – protect P from suing unnecessary parties • Prior decision “on the merits” – protect P from “procedural” mistakes • Valid claim could have been brought at same time as other claim • Same transaction (set of facts) --erases possibility of repetitive litigation Rush L1 – After car accident. Preclusion Doctrines. P sued for property damages and won $100. so state law should determine when the statute was tolled. allowing “substituted” service on D’s spouse at their home. when no recovery could be had in a state court because the action is time-barred by the statute of limitations. a federal court can use laches to determine the timeliness of an equitable state law claim filed in federal court.“use it or lose it” Mathews L1 – assault/ libel against employees of race track.ties up court system • Unfair monetary expenses (denies benefit to winner) • Decreases predictability / Inconsistent judgments --Risks of strong preclusion doctrines: • Unfair because legitimate claims not triable • Judicial efficiency – too many issues/parties/claims in one proceeding • Inaccuracy – no way to correct mistakes from prior litigation A. (2) interests of the federal judicial system to govern their procedures. Guaranty Trust v.

arguing the prior “consent judgment” precluded further litigation. claim precluded because the promissory note and sales contract constitute a single transaction. there is no reason to waste the time of the court and other persons in relitigating the issue.Rios sued Davis for personal injuries. Contrast to Issue preclusion – some courts have held that default judgments have limited issue preclusive effects B. Housing Authority for La Salle L1 – Federal government sought to condemn easements over property. and First Trust -> YMCA as successors in interest. Not issue precluded because the lower court did not give reasoning of holding.issue preclusion would only apply if same parties to litigation (“mutuality”). Davis defended with contributory negligence. Rios v. and argued Rios.Moitie L1 – antitrust suit filed in fed court.trial courts have discretion to use offensive issue preclusion Russell v. Court held that Mother’s account was gift to son. son became administrator of estate. Place L1 – P brought patent infringement suit for use of fat liquor and specific process in curing leather. was negligent. Hanover Logansport. Bernhard. Claim preclusion because could have brought the claim of damages/property despite consent judgment. Inc. failure to state a claim L2 – refiled in state court – claim precluded because claim could have been brought – should “take an appeal” Jones L1 – bank sued for 2 late payments L2 – bank sued for remainder payments. Mother died. L2 . Found all parties negligent. Davis L1 – After car accident. Key Case: Bernhard –if a party has had a full and fair opportunity to litigate an issue in one action. L1 – Mother and son were on same bank account. Court held that consent-judgment-is-contract to encourage settlements and avoid protracted litigation. as beneficiary. . Son withdrew the balance and opened a new account in his name. L1 – Consent judgment for breach of lease. sued son for balance of account. The parties must have agreed to reserve an issue of claim and it must be precisely stated what issues or claims are being reserved. Fight over good title to property. Popular Dry Goods sued Davis for negligence. Default judgment in favor of First Trust as landowner against Deenis. L2 – Hanover filed motion to dismiss claim for breach. Judgment for P. Inc. Final determination of possession. Bad old days: Ralph Wolff . Robert Anderson. Issue Preclusion – Collateral Estoppel --Elements of Issue Preclusion: (Southern Pacific) • Same Issue o Actually decided / litigated in a prior suit o Necessary to the decision • Final decision “on the merits” • “Target” must be a party in L1 --Defensive issue preclusion – D wants to use previous decision to limit P’s arguments --Offensive issue preclusion . the driver. The finding that Rios was negligent in L1 was not necessary to the decision.P wants to use previous decision limit D’s arguments --Blonder-Tongue . Claim precluded by default judgment. and no one got damages. L2 – Deenis -> Housing Authority. v. L2 – P sued again because D continued to infringe the patent.

multiple passengers filed suit in various district courts and state courts. as administratrix. Supreme Court adopted in Blonder-Tongue Laboratories v. Because US funded and directed L1 for contractor. --§ 1738 . Issue precluded because Bernhard. and not a constitutional problem because the right to trial by jury is not absolute. . Tann not negligent L2 – Tann wants to issue preclude all other possible P. US -> Montana tried argued to issue preclude the US based on L1. The suits filed in federal courts were transferred to SD of Ohio court for pre-trial proceedings pursuant to § 1407 Multidistrict Litigation. L2 – White firefighters sued the City because the new processes adopted by the City violated their equal protection rights. RR prevails in 25 litigations.reveals the problem of non-mutual issue preclusion where inconsistent prior adjudications affect the application of issue preclusion. Wilks L1 – Black firefighters sued the City over discriminatory hiring processes. as target. unlike the first 25. Some judges have declined to extend non-mutual issue preclusion in the face of conflicting prior judgments. When a federal court hears a diversity case. Humphrey was not a party in L1. A settlement between 2 parties does not preclude the claims of a non-participating group.P brought the same suit in MD. Contrast to Prof Brainerd Currie’s “train accident” scenario .000 against TWA. which was not time-barred by MD state law. --use preclusion law of state offering judgment on merits Migra L1 – P sued the school district in state court over violations of her contract and lost. The remaining passengers prevail through issue preclusion. it was “in privity” with a party. Shore L1 – SEC won suit against Parklane via declaratory judgment of fraud. “Full faith and credit” mandates that P’s statecourt judgment has the same claim preclusive effect in federal court that it would have in state court. v. Won in a consent judgment. Semtek L1 . L2 – Patent infringement case against another party issue precluded.Federal courts have to give the same credit to states’ decisions that they would give to their own decisions. is bound by decision in L1. and was dismissed “on the merits and with prejudice” because it was timebarred by CA statute of limitations. which applies because now the “target” requirement is satisfied. Parklane Hosiery Co. (Legislatively overruled in Civil Rights contexts) In re Multidistrict Civil Actions (Air Crash near Dayton) Following a plane crash between 2 planes. Removed to federal court for diversity of jurisdiction. Gives “full faith and credit” to CA state law which does not consider a claim precluded if dismissed because time-barred. so cannot be issue precluded because it would be unfair to Humphrey not to have his opportunity to litigate. TWA and Tann -> $300. the federal common law governing the preclusive effect of the judgment is the state law in which the federal diversity court sits. L1 – Downey v. contractor -> Montana L2 – Montana v. Note 4 L1 – Montana v. sued bank for account because withdrawal was not authorized. Full Faith & Credit Doctrine --Art IV. L2 – P sued in federal court on constitutional issues. but the 26th passenger wins. Martin v.State courts have to give the same credit to other state’s decisions that they would give to their own decisions.L2 – Bernhard. Offensive issue preclusion – P binding D from previous litigation. so it should be precluded. C. Humphrey’s lawyer did not show up at 2d pretrial hearing.P brought suit for breach of contract and business torts in CA state court. L2 . 50 passengers are injured in a train accident. § 1 . which claim precluded P from bringing a subsequent suit in federal court. L2 – Private P sued Parklane for damages. U of Ill Foundation L1 – Patent infringement held invalid against Foundation.

but held the cap law is not an affirmative defense (e) 2 or more statements of a claim or defense alternately & as many separate claims or defenses regardless of consistency FRCP 12 – Defenses and Objections (b) Defenses must be pled in the answer ASAP. D can move to dismiss after discovery. (c) set forth affirmative defenses (see Rules) (if not.outside P’s case) (iii) policy: indulged or disfavored? --Ingraham Facts: P sued under the Federal Tort Claims Act for injuries suffered by negligence of military doctors. Complaints & Answers FRCP 8 – General Rules of Pleading (a) Complaint: (1) a short statement of the grounds for jurisdiction (2) a short statement of the claim showing the pleader is entitled to relief (3) a demand for judgment of relief.X.states in short terms the party’s defenses to each claim asserted. Swiss Club Tell – cannot deny information “presumptively within D’s knowledge” --Averments are admitted when not denied. “day in court” Highwater mark: Diguardi v. The damages awarded were in excess of the TX Tort Reform cap. but government did not include this in their pleadings or during the trial. Relief in the alternative may be demanded. requiring a “statement of facts” constituting a “cause of action.P should have info) OR extrinsic (affirmative defense . Goodyear Service Stores . only on appeal. it should be raised early and with notice. P’s allegations were insufficient because the pleading was necessary not only to enable the opposing party to respond but also to enable the court to declare the law upon the facts stated. and shall admit or deny the averments --state if a party does not have knowledge of the truth of an averment (denial) --Oliver v.The pleading should give the adversary and the court reasonable notice of the real nature of the claim or defense. then waived) --test for affirmative defense not listed: (i) P is entitled to notice (“prevention of unfair surprise”) (ii) necessary to P’s case (ordinary defense . D should have amended the pleading during trial. US Attorney moved to dismiss on grounds that it failed to state a cause of action.Under NC code. The allegations did not disclose any factual data describing D’s alleged wrongful conduct. Because P would have tried the case differently with notice of this defense. Pleading --Cook’s article . (b) Answer . “in terrorem” settlements --Lax rule – benefits P because evidence is in D’s hands. Decision: Statutory limitation on liability is an affirmative defense under 8(c). if not. P disclosed that the collector did something with his tonics which satisfies the rules of civil procedure. Decision: Federal rules require only a short and plain statement of the claim resulting in a dismissal for failure to state a claim upon which relief can be granted. then waived --following defenses may be made by motion PRIOR TO ANSWER: . Contrast to Code Pleading – a few states still follow all or part of the codes.Same basic facts. Durning Facts: P filed a “home drawn” complaint to assert grievances against the Collector of Customs for importing bottles of tonics. --Contrast to Taylor . A. and nothing more – Liberal notice pleading is made possible by the opportunity for discovery and other pretrial procedures --Sup Ct has repeatedly rejected "heightened pleading standards" (Swierkiewicz) --Stringent rule – benefits D by screening out frivolous cases.” --Gillespie v.

Particularity (exceptions to the broad. improper venue 4. immaterial. separate statements FRCP 5 – Serving and filing of pleadings --Service.1. or redundant. American Nurses P brought suit for Title VII violations in wage discrepancies between men and women in traditionally sex-segregated jobs. P contended that while it has substantial reason to believe the allegations. The issue is whether the complaint stated a claim for which relief can be granted (12(b)(6) motion). the court may allow the pleadings to be amended. lack of subject matter jurisdiction (1-5. knowledge and conditions of the mind may be stated generally --protects D . nuisance or settlement value (g) Items of special damage must be stated specifically Denny v. Congress passed the Securities Fraud Act mandating that P must allege scienter with particularity Rule 15(a). insufficiency of service of process 6. when required.moral turpitude. --In 1995. (c) An amendment relates back to the date of the original pleading. Contrast to Denny v. (d) Supplemental pleadings – to cover events occurring after the original pleading Rule 11 (a) Every court document must be signed (explicitly hooking a particular attorney) .D moved for “particularity” in complaint for securities fraud suit. which. lack of personal jurisdiction 3. demanding P name the particular strikers. (f) Motion to strike any insufficient defense. Ct held that the complaint was sufficient. Lodge 743 Facts: P brought suit alleging a violation of a strike settlement contract. Names of Parties (b) Paragraphs. (d) – Amended and Supplemental Pleadings (a) A pleading may be amended 1 time before a responsive pleading is served OR by leave of court or written consent of the adverse party. intent. is a violation and valid claim. general pleading rule) (b) Fraud. failure to state a claim for which relief can be granted (replaced demurrer) 7. the pleading is sufficient.circumstances must be stated with particularity --Malice. (c). insufficiency of process 5. (g) . 7 – abatement) 2. it was not in the position to name the members. unless specified otherwise Rule 9(b). Mistake. Court held that because P pleaded intentional discrimination by government. (e) Motion for more definite statement if a pleading is vague or ambiguous --will be denied when the information sought by the moving party is available through discovery. failure to join a party under rule 19. (b) Not adding issues tried to the pleadings does not affect the result of the trial. but P is not required to answer until discovery proceedings are completed. if proved. where the court held that the securities fraud complaint is too vague for D to create a defense. Decision: Motion granted. Carey . Barber. shall be served upon each of the parties’ attorneys. and would be fleshed out through the discovery process. impertinent or scandalous matter. (b). D moved for more definite statement under rule 12(e). Condition of the Mind . FRCP 7 – Pleadings allowed (a) Pleadings: Complaint and answer Counterclaim and reply Cross-claim and answer 3d party complaint OR 3d party answer FRCP 10(a)-(b) – Form of Pleadings (a) Caption. If evidence is objected to.

requires some substantive weight to claims --Disadvantage .e. P refiled the original complaint as a counterclaim to D’s counterclaim to get federal jurisdiction. not P . by making the lawyer a judge of his client --Rule 11 is a response to the growth in numbers of lawyers and the litigation-boom. and the attorney had not investigated the claim or disclosed the state claim on appeal. on the same claim.Danner v.a party asserting a claim to relief may join as many claims as the party has against the opposing party (must have subject-matter jurisdiction and venue over each claim. both in questions of law and fact. denials are reasonably based (c) after notice and a reasonable opportunity to respond. D moved for Rule 11 sanctions against P and attorney because P lied in his affidavit. separate judgments (54(b)) Great Lakes Facts: Suit for unfair business practices. Adding Claims 18(a) Joinder of Claims .may have a “chilling effect” on litigation. client or firm a. harassment b. Anskis). waiver or estoppel (b) permissive counterclaims – a pleading may state any claim against an opposing party not arising out of the transaction (must have independent subject-matter jurisdiction) (c) counterclaim exceeding opposing claim (d) counterclaim by supplemental pleading – events occurring after original pleading (e) counterclaim by amendment – add omitted claims (f) cross-claim – any claim by one party against a co-party arising out of any transaction in the current pleadings (usually D. (e)-(i) – Counterclaim and cross-claim (a) compulsory counterclaims – pleading must state any claim party has against any opposing party arising out of the “transaction or occurrence. likely to have evidentiary support (“objectively reasonable evidentiary basis”) d. on court’s initiative (no safe harbor. not for improper purpose. Decision: Sanctions denied because under the new Rule 11 neither party had the ability to take advantage of the “safe-harbor” period to withdraw his claim after opposing council filed the motion.” no monetary sanctions) c. sanction must be limited to what is appropriate to deter future violations --reduce frivolous claims through attorney/client sanctions by providing controls over what lawyers can say in court.(b) Requires an inquiry reasonable to the circumstances a. leaving the counterclaim. i. “show cause. a state-run racetrack. counterclaimed under Sherman Act.” if it does not require the presence of parties that the court cannot acquire personal jurisdiction over --if there is a “logical relation” between the claim and counterclaim --receive supplemental jurisdiction --unasserted compulsory counterclaims barred by res judicata. claim preclusion) 13(a)-(c). nonfrivolous argument for the extension of law (wiggle room for development of law) c. and because the attorney’s reliance on his client’s statements was reasonable and disclosure of the pending state claim was not necessary. court may impose sanctions on the attorney. pleadings. shall be filed after 21 day “safe harbor” period to correct the action b. The original complaint was dismissed for lack of diversity jurisdiction. not compulsory. compulsory claims – supplemental jurisdiction. Hadges Facts: P sued D-Meadowlands. Decision: A counterclaim is “logically related” to the opposing party’s claim where separate trials on each claim would involve a substantial duplication of effort and time by the parties and courts. where . supplemental jurisdiction (g) joinder of additional parties – see Rules 19 and 20 (h) separate trials (42(b)). B. etc --Benefit .

Persons to be Joined If Feasible – A person who can be brought before the court must be joined (if not destroying personal or subject-matter jurisdiction. Step 2 – What to Do Whenever Joinder Not Feasible – If a person who should be “joined if feasible” cannot be made a party. D argued that the counterclaim was not compulsory. Decision: Rule 14 permits the impleader of a party who is or may be liable to maintain judicial efficiency.in furtherance of convenience or to avoid prejudice. In its answer. Lasa v. counterclaim. Originally both parties brought the Stelma issue in federal court under supplemental jurisdiction. --3d party D may assert any claim against P arising out of the transaction or occurrence that is the subject matter of the original claim --Any party may move to strike the 3d party claim (b) P may bring in a 3d party when a counterclaim is asserted against him Jeub Facts: P sought to recover damages from B/G Foods because they served P bad ham. D counterclaimed denying liability on Navy contract and Stelma contract. Alexander Facts: Contractors and subcontractors claimed. and where offshoots of same basic controversy. or issue 16 Plenary control over how trial progresses (think Civil Action) C. 19(a)-(c) – Joinder of Persons Needed for Just Adjudication Step 1 . may bring in a 3d party who may be liable to him for part of P’s original claim --3d party D shall make any defenses (12) and any counterclaims or cross-claims (13). as a 3d party P. convenience and economy dictate that it is a compulsory counterclaim and receives supplemental jurisdiction. Decision: The court held that the counterclaims were compulsory within Rule 13(a) because there was a “logical relationship” between the claims because they arose out of the same transaction or occurrence. the court shall determine whether in “equity and good conscience” the action should proceed with the parties before it OR should be dismissed (the absent person is indispensable). the court may order a separate trial of any claim. so the court did not acquire jurisdiction. cross-claim. 42(b) Separate Trials . On appeal. etc. especially marble. Decision: The principle issue of who is responsible for the marble problems runs throughout. (3) will judgment rendered in the person’s absence be adequate (4) will P have an adequate remedy if the action is dismissed . in a 3d party complaint. D moved to implead Swift & Co. or venue) if: (1) complete relief cannot be accorded among the parties in the person’s absence OR (2) the person claims an interest relating to the subject of the action and that the disposition of the action in the person’s absence may: (i) impair or impede the person’s ability to protect that interest OR (ii) leave any of the parties subject to a substantial risk of inconsistent obligations by reason of the claimed interest. who manufactured the ham. Joining Parties & Impleader Rule 14(a)-(b) – Third-Party Action (only way D can bring other parties to action) (a) D.many of the same factual and legal issues must be decided. and the “transaction or occurrence” that is the subject matter of the complaint. cross-claimed and 3d party claimed against each other over contracts. --factors to consider: (1) would a judgment be prejudicial to the absent person or the parties (2) can the prejudice can be lessened or avoided by shaping of remedies. 3d party claim. creating a “logical relationship” between the cross-claims and 3d party claims. protective provisions in the judgment. Heyward-Robinson Facts: P-subcontractor brought action against D-contractor for breach of contract on Navy job to recover payment due. counterclaimed.

Lynch won $50.) 21 – Misjoinder and Non-Joinder of Parties . niece. receiving the bulk of the estate. Decision: The counterclaim had supplemental jurisdiction because the claim fell within the core of aggregate facts upon which the original claim rested. --discretionary . Provident Tradesman Bank Facts: 3 tort actions brought in response to one traffic accident: Dutcher was not joined in the suit between Lynch and Cionci because Lumberman Insurance refused to defend on behalf of Dutcher. parties may be dropped or added at any time.000 judgment. and by that time. who are not joined. and then sued Dutcher for payment. if known. whose future interests will be affected by a lawsuit. insurance’s witnesses and evidence will be scattered. Luke’s Hospital residuary legatee and devisee. Luke’s. Decision: Insurance cannot intervene. Insurance moves to intervene to prevent insurance fraud .(c) A pleading must state the names of persons to be joined if feasible. not any other devisee. and the reasons why. (Despite the supplemental jurisdiction between Fuller and Revere.” the court applied the 4-part test of 19(b) and decided to proceed. Fuller asserted a counterclaim against Revere. The other devisees would not be bound by the judgment. 20 – Permissive Joinder of Parties (all similarly situated P can join all similarly situated D) (a) All persons may be joined if they assert any right to relief jointly. Girl sued beau for damages. McDonald Facts: “Girl about town” was injured in a car accident when her drunken beau drove the car into a ditch. Luke’s portion of the estate. Revere could NOT counterclaim against Fuller because they do not have complete diversity. severally or in the alternative arising out of the same transaction or occurrence AND if any common question of law or fact will arise in the action (b) To prevent delay or prejudice the court may order separate trials Bank of California Facts: Sara Boyd died testate. Intervention --when a sideliner. Contrast to Knapp and Wharff . Decision: The court may determine the controversy between the parties without prejudice to the rights of others because if Bertha won the suit. so was a compulsory counterclaim and cannot be defeated by diversity. Aetna impleaded Fuller under 14(a).whether the intervention will unduly delay or prejudice the original parties Bad old days: Brune v. Revere moved to dismiss the counterclaim because no diversity. she would be awarded St. naming St. Revere Copper Facts: Revere sued Aetna on a surety bond. Bertha Smedley. wants to be involved in a lawsuit that will not necessarily preclude any of his future claims 24 – Intervention (a) Intervention of Right – must be allowed to intervene (2) when the applicant: (i) claims an interest to the property or transaction (ii) disposition of the action may impair or impede the applicant’s ability to protect that interest (practically) (iii) the interest is not adequately represented by existing parties (b) Permissive Intervention –may be permitted to intervene (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. Summons was served only upon St.afraid that the beau will wait till the statute of limitations is about to run to sue. brought an action to enforce the provisions of an alleged contract by which decedent agreed to leave Bertha the entire estate. D. Decision: Assuming that Dutcher was a party to be “joined if feasible.Misjoinder of parties is not ground for dismissal. and must wait their turn to litigate. who moved to join the other devisees because they are “necessary and indispensable” parties.

The superintendent and school board member cannot intervene because their interests were adequately represented by the school board. Stare decisis might “impede” Atlantis’ ability to relitigate the case because any factual or legal determinations (except the final decision) will be binding on Atlantis.e. passivity. he should be allowed to be a party in order to promote judicial efficiency. 2 possible interpretations:  Society gives courts certain tasks – what procedures are necessary?  Courts work like this – what goals should they serve? • Adjudication is a matter of party control as optimal ideal o Fuller is connected to the adversary process. etc.parties present proofs and reasoned arguments --Polycentrism as the “limit” of adjudication --spider web image --the issue is knowing when the polycentric elements have become so significant and predominant that the proper limits of adjudication have been reached --Contrast the “worldly dispute model” (courts ought not to resolve the problem) with “legal construction model” (statutory/constitutional rights must be resolved by courts. the parents’ are allowed to intervene because the government (school board) may not adequately represent their interests. natural. Articles Fuller. and the school board’s decision not to appeal. XI. Atlantis moved to intervene to seek a declaratory judgment that they owned the property. impartiality  Not applicable to appellate courts because judges ask questions at oral argument about law. Decision: Applying Rule 24 test. arguments. Atlantis claimed ownership. Key Case: Smuck v. one of the board members and 20 parents decided to intervene and appeal.Where the lawsuit will affect the interests of an intervening party. the discoverer. i. . with underlying norms of neutrality. Schiavo parents moved for preliminary injunction in their pleadings o Motion denied because it was no substantial likelihood they would win on the merits XII. The Forms and Limits of Adjudication . but Congress/Constitution ought not to send these issues to courts) --Take home points: • Illustrates the relationship between judicial process and function – must decide what you want the court to do before making decision of what the process will be. universal character of adjudication o Green’s quiet skepticism – courts are socially and politically constructed. feudal England o “Forms” of adjudication (processes) are critical to “limits” and goals of adjudication o Fuller described a singular. Hobson Facts: Following a class action against the School Board for discrimination against black and poor children. US government took control of the reefs. Injunctions • Standard: o Substantial likelihood will win on the merits o Irreparable injury o Balance of equities between parties o Public interest • Terry Schiavo example o Following the federal Congress legislation. the superintendent. passed on property rights to one party. Atlantis Development Facts: Dispute over ownership of coral reef: Anderson. Decision: Granted motion to intervene for efficiency’s sake.

The Role of the Judge in Public Law Litigation “transaction or occurrence” --liberal joinder and intervention rules increase efficiency and adequately represent societal needs in “polycentric” questions --liberal notice rules limit dismissal for technicalities “triumph of equity” --disconnects rights and remedy by appointing the judge as overseer of public policy for the good of society. constitutional interpretations are lasting Resnick. lawyers more likely to bring the case because of fees  Green – can stop claims from being filed  defendants’ abilities to “aggregate” through counterclaims. etc. 3d party claims. From “Cases” to “Litigation” • Aggregation’s happening and its threatening the foundations of civil litigation because judges and lawyers have a lot of control over the litigation. more than of the parties --many more parties’ interests are affected and may become parties to the action --remedial flexibility of injunction allows courts to be more aggressive in applying broad rights knowing that enforcement can be different (compare Brown I and II) “legitimacy” --accountability and balance of power – in making policy decisions courts may step on toes of congress --statutory problems less disconcerting because congress may change the law v.judges have discretion over their calendar and can postpone trial Winter – focused on the threat of aggregation on mass torts – moving away from individual injury and individual tortfeasor o Different facts for each injured party  inefficient results and damages o Entrusts judges and lawyers to determine when aggregation should apply • • .). instead of the rule of law o Expedite claims by combining individual claims into one large one  Leads to polycentrism  judges become managers of litigation o Enable new claims by allowing ppl whose claims would not be able to be brought unless combined with others (not financially possible.o What happens to systemic efficiency. joinder. intervention  increase costs  Aggregation of wealth and power in large corps and governmental entities Judges/courts are responsible for fostering aggregation because: o the “judicial conference” drafts the rules  Supreme Ct  Congress for ratification (Rules Enabling Act) o courts decide which cases they should hear (Scalia believes SS cases should be heard by administrative agencies)  courts will send these types of cases to ADR  timing . social justice and truth-seeking? Chayes.

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