Civil Procedures

I. Overview A. Analytical Framework 1. Personal Jdx. 2. Notice 3. Subject Matter Jdx 4. Venue 5. Erie Doctrine 6. Pleadings 7. Joinder 8. Discovery 9. Pretrial 10.Trial 11.Claim and Issue Preclusion II. Personal Jdx A. Overview • PJ questions whether defendant can be sued in the forum state. Ct. must either have power over : (1) the defendant OR (2) the defendant’s property. (a)Types (i) In Personam Jurisdiction. The ability of a court to exercise power over a particular defendant. Limitless to the assets of the person, can satisfy an obligation to the full extent of the claim. − − general – continuous and systematic contact (e.g. domicile) specific – contacts “arise out of” contacts w/ the forum (i.e. minimum contacts)

(ii) In Rem Jurisdiction. Jurisdiction over a property within a jurisdiction. Used to adjudicate questions concerning ownership and control of such property. Liability limited to the property (iii)Quasi In Rem Jurisdiction. Jurisdiction over the property located within a forum. Can be used to service personal obligations (b)Limitations on Personal Jurisdiction Two Pronged Inquiry: (i) Statutory Limitations. States have the power to decide the limits of jurisdiction. As such, the first step should be to determine whether the state allows jurisdiction under its “long arm” statutes. (ii) Constitutional Limitations. Due Process Clause places two restrictions on personal jurisdiction, (1) contacts with the forum so that the exercise of jurisdiction is reasonable and fair and (2) defendant must be given property notice. “No state shall deprive any person of life, liberty or property without due process of the law.” Protects defendants from having to defend an action in a distant forum. Without this clause a plaintiff could force a defendant to defend a suit where he/she chooses. B. State Statuary Limitations on In Personam Jurisdiction 1| Page

• Each state has its own provisions. Typically based on the following four: (1) service of process, (2) domicile, (3) consent, (4) acts that bring defendant into forum via long-arm statute. (a)Traditional Basis – service of process, domicile, consent (i) Pennoyer v. Neff – Traditional basis for PJ. Judgment against Neff was void because (1) no service of process…i.e. physical presence, (2) appearance in the action…i.e. consent or 3) domicile in forum. Therefore, the original judgment violated Neff’s constitutional right to due process. “A judgment void when rendered will always remain void.” (ii) See also Hess v. Palowski – Involved a car accident in MA by a PN resident who was traveling on a MA highway. SCOTUS held that by driving a vehicle in the State, D. implicitly consented to jdx and thus appointed a state official as agent for service of process. (iii)But see Burnham v. Superior Court – Courts held that was permissible to obtain jurisdiction over an individual by serving with summons in the state where the suit if brought, even if the defendant is within the forum for reasons unrelated to the litigation or is only there briefly. California had jurisdiction over defendants under a “tag” or “transient” jurisdiction theory. − Justice Scalia’s camp – “Tag” jurisdiction comports with traditional notions of fair play and substantial justice, i.e., it’s always been fair to exercise jurisdiction under these circumstances Justice Brennan’s camp – “Tag” jurisdiction comports with contemporary due process (i.e., the minimum contacts test) because defendant subjected himself to “significant benefits provided by the State.” Split Ct. raises questions of whether Intl. Shoe should replace Pennoyer

(iv)Exceptions – Jurisdiction via service of process cannot be obtained through fraud as in Wyman v. Newhouse. Judgments obtained fraudulently are not enforceable. (v) Domicile – Place of permanent home or in some cases citizenship (vi)Consent – can be expressed (via contract or appointment of agent) or implied or through voluntary appearance. (b) Long-Arm Statute. (i) Unlimited Long Arm Statutes (broadest type e.g., CA, RI) − Power over person and property to the limit of what is constitutionally permissible. Due process does not confer any jurisdiction on state courts; it only defines the outer bound of the permissible jurisdictional power. Limitations in Tort Cases, tort (malfunctioning product like in Gray) v. tortuous act (car accident). Issue when defining where the tort occurred. − Gray v. American Radiator – Radiator valve for water heater produced in OH, sold to Penn, and then resold to Ill., where it caused injury. Issue was that Illinois’ long-arm statute called for a “tortuous act” not “tort” injury for jdx. Ct. concluded that tort took place where a negligent act caused the injury. Other Cts. have viewed this as a “strained interpretation.”

(ii) Laundry List long-arm statutes e.g., NY or intermediate long-arm statute e.g., TX −

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But See Feathers v McLucas (NY Ct.) – disagreed with Gray interpretation and called for “plain language” read of its long-arms statute.

Limitations in contract/business cases, “transaction of business in state”. Issue whether physical presence is required.

C. Constitutional Limitations (i.e. Due Process) on In Personam Jurisdiction 1. International Shoe – Minimum Contact AND Fairness. (a) Minimum Contact Test (i) Court will look for two main factors to analyze contacts requirements: (1) purposeful availment and (2) foreseeability (ii) Must show that a deliberate relationship, performed acts within the state, or derived benefit, so that the defendant should reasonably expect to be sued in forum. (iii)International Shoe holds that D. must have such “minimum contacts” such that exercising jdx. does not offend the “traditional notions of fair play and substantial justice. − Int. Shoe does NOT hold that D. may be subject to a state’s jdx simply because D. had some contact with the state. Claim must arising out of in-state activities. The latter is measured by the “quality and nature” of activities within the forum. Either (1) small number of contacts, but very related or (2) large number of contacts less related. Contact within a forum does not need to be continuous if D’s in-state acts demonstrate a deliberate effort to take advantage of the benefits and protection of the forum state’s laws, then the contact meets the minimum requirements laid out in Intl. Shoe.

(b)Refinement of Intl Shoe Test (i) Availment must be foreseeable − World-Wide Volkswagen, Product purchased in NY and tort from accident occurred in another state. Claim dismissed b/c D. does not purposefully direct activities toward forum state and there was no reasonable expectation to be sued there. The foreseeability that is critical to due process analysis is not merely the likelihood that a product will find its way into the forum state, but the purposeful act of availment. Ct. chose a narrow view of personal jurisdiction, focusing on the scope of activities of the seller, not plausible area of use of the product by a buyer. Hansan v. Denckla, Ct. did not uphold jdx. b/c D did not solicit the contact with the forum state. Therefore, DE trustee did not have the minimum contact with the forum. Must be some act of “purposeful availment” via invoking the privilege of conducting activities within a forum that subject the actor to legal action within the forum. But see McGee v. International Insurance, distinguished from Hansan in that D. solicited insurance contract in CA. It didn’t matter that the K was D’s only client in the state. D solicited the business and therefore was of a quality and nature needed for minimum contact.

(ii) Solicitation of business is indicative of “availment” −

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passive (providing internet service) and posting (making info accessible on internet) not sufficient.e. However. Analysis for Exam (a) Flag whether one of the traditional basis applies (Pennoyer) (b) Note that we don’t really know if Pennoyer is enough b/c of Burnam 4| Page . (vi)Internet contacts can be sufficient depending on the level of interactivity. Asahi v. (iv)Do not need to be physically present in forum. Superior Court – Fact patterns → on-going flow of the defendant’s goods into the forum state through distributor or final manufacturer. only need to cause an effect − (v) stream of commerce.” D. publishes material that damages P. reputation in forum state.g.. O’Connor Group – (1) Asahi did not “purposefully avail” itself of CA b/c it did not make an active effort to service the mkt.” they were sufficient to support personal jdx. − See CompuServe v. the justices disagree on rationale: 1. Jones (effects test) – D. D. SCOTUS held that D may be subject to jdx where D “causes an effect. does not have to set foot in forum.e.(iii)Fairness Test must indicate “grave difficulty” such that D would be severely disadvantaged − Burger King – D had (1) substantial and continuing relationship with the headquarter office.e. would not comport with “fair play and substantial justice” BUT (2) held that “stream of commerce” would be enough for jdx. Calder v. Asahi a Japanese company. Ct. K was w/ an OH company. SCOTUS split − (vii) − 2. (i. advertise or design goods specifically for the market and (2) exercise of jurisdiction would be “unfair and unreasonable” (i. The contacts fell under the “interactive” category below. Although D’s contacts were “almost entirely electronic in nature. Intl. would be contrary to fairness principles. Ds (officers and directors of Greyhound) lacked sufficient minimum contacts with DE and therefore dismissed for lack of personal jdx. advertized on OH system. would not comport with “fair play and substantial justice” 2. D repeatedly sent software via internet there. Due process guarantees a forum. specified OH law. (2) received fair notice that he could be subject to litigation in FL via K (3) → THUS Ct. Heitner – Ct held quasi in rem jdx would satisfy due process only if passes the “minimum contacts” test. Brennan saw this as a case where fair play and substantial justice trumped purposeful availment b/c Asahi was a foreign country. was not subject to personal jdx in CA.. e. Shoe test also applies to quasi in rem Shaffer v. held that a defendant must present a “compelling case” before jurisdiction will be found unreasonable.e. i. then argues that jdx. Held that that D. not necessarily a “good” forum. market directly. and initiated events that led to the filing of the suit (making demands). held exercising personal jdx did not offend due process. Brennan Group – (1) Agreed that jdx would be “unfair and unreasonable” (i. Patterson – D subject to jdx in OH b/c he directed activity into the forum. the contact was solicited.

the defendant will have forgone his/her opportunity to defend the case on the merits. Special Appearance (state court) – Allows defendant to challenge jurisdiction in court where jurisdiction is challenged without subjecting itself to power of the court. Default and then follow with collateral attack. B. (2) state’s interest. II. “Process” – consists of (1) summons directing defendant to respond or appear in court and (2) copy of the complaint “Service” – formal means by which process is delivered and provides notice to defendant of lawsuit. Purpose is to guarantee D. In most states. Summons 5| Page . and the forum − − − purposeful availment foreseeability relatedness (1) Does P’s claim arise from D’s contact w/ the forum [McGee]? (2)If not. By motion or answer (federal court) – Defendant must either file a motion to dismiss for lack of personal jurisdiction (Rule 12(b)(2)) or assert lack of personal jurisdiction as a defense in answering the merits of the case. a defendant to challenges jurisdiction and loses can appeal to a higher court even when forced to defend the case on the merits. The danger in this is that the plaintiff will likely get a default judgment. Rule 4. That is to ignore the proceeding entirely. Defendant must be careful (under common law approach) not to raise any issues on the merits because the court can conclude that the defendant has waived his/her jurisdictional objection. If not met. Hynter – (1) must attach BUT also (2) must make sure the D. − burden is on D. Service of Process 1. then will only work IF general jdx. The objection to jurisdiction must be raised immediately or it is lost. 3. Federal Rules of Civil Procedure. Overview − Adequate service of process is a due process requirement. (3) P’s interest. (4) efficiency interest. the case can be dismissed. Challenging Personal Jurisdiction 1. The plaintiff may seek enforcement under the full faith and credit clause (Article IV of the Constitution) and if the plaintiff wins the jurisdictional argument. Shoe test (ii) fairness − − − 2. Can be made by any non-party who is at least 18 (Rule 4) Shauffer v. Shoe (i) relevant contacts b/w D. basic right of notice that a suit is filed against him and that a court intends to proceed to adjudication. Newhouse 2. (a) EX: Wyman v. to show that the forum is gravely inconvenient (1) inconvenient for D and witnesses. meet Intl. (5) interstate interest in shared substantive policies. Notice A.(c) Intl.

EX: Triad Holding Corporation . a state court] in the state where the D. Not his usual place or dwelling. Ct. (1) longarm statute and (2) constitutional limit. (f) Rule 4 (m) – D. must serve process AND D. State Ct. Subject Matter Jdx A. P. who is subject to the jdx of a court of general jdx [i. e. challenged service of process. must be served within 120 days of complaint or the court will dismiss the action. is located. affirmed. then plaintiff also needs to mail a copy of the summons and complaint to the defendant. III. responsible for summons and complaint Rule 4 (c)(1) (b) Waiving service Rule 4(d) (i) Allows P. (e) Rule 4 (k)(1)(a) – “Serving a summons or filing a waiver of service establishes personal jdx over D. (ii) Rule 4(e)(2) Doing any of the following − − − Delivering a copy of the summons and complaint to the individual personally Leaving a copy at the individual’s dwelling or usual place of abode with someone of suitable age Delivering a copy of each to an authorized agent EX: Leigh v. Paschen Inc. (ii) Duty to avoid unnecessary expenses Rule 4(d)(1) (iii)If D. fails to return waiver. can hear the case → Fed.” (d) Method of service for a corporation Rule 4(h) (i) Complying with state law. Rule 4(d)(3) (c) Method of service for an individual (i) Rule 4(e)(1)Complying with state law. or (ii) By delivering a copy of the summons and complaint to an officer.(a) P. to the same extent as an AZ State Ct. v. an AZ Fed.H. will exercise jdx. 60 days instead of usual 20 days. Ct. OR EX: Morton v..e. 6| Page . return receipt requested and argued it was sufficient under the state’s law.Judgment against D. Lynton – Ct. as the State Ct. may have to pay cost of service if refuses to waive process w/out good reason.” − Basically this rule applies the same test for a Federal Ct. then P. managing or general agent. Rule 4(d)(2)(B) (iv)Gives additional time to respond. Answers the question of what ct. or any other authorized agent (iii)If the agent is one authorized by statute. to mail the process and waiver form to D.g. F. Point was this was one of his places of abode and he “actually living there. even though he had several “places of abode”. quashed the case b/c D was served via wife in apartment/hotel she was staying in. – D. Overview 1. served via certified mail.

28 U. 4. Diversity of Citizenship 28 U. have general jdx. Citizens of a state and citizens or subjects of a foreign state. and control activities) Bulk of Activity Test (where the bulk of the corporation’s activities take place) Use Bulk of Activities test unless activities are thoroughly dispersed. limited partnerships. then use Never Center Test. over all civil actions where the matter in controversy exceeds the sum or value of $75.. Caribbean Mills. §1332 – Dist. Cts.. If dispersed.) do not have a citizenship apart from the citizenship(s) of their members (iv)28 U. and can hear most types of cases 3. etc. partnerships. Fed.g. Citizen of Different States (a) Complete Diversity Rule (i) No diversity if any P. where officers direct.2. Perry) (b) Citizenship of a Corporation. by assignment or otherwise. labor unions. exclusive or interest and costs.g.” e.S. (ii) Citizenship of an Individual is determined by: − − state of domicile (NOTE: an individual may only have one domicile) a person can change domicile by: (1) physically moving to a new state AND (2) forming an intent to make that state his/her new home. have limited jdx. (iii)Unincorporated entities (e.C § 1132(c) (i) May have multiple citizenships – (1) place of incorporation and (2) principle place of business (ii) PPB determined by two tests − − − Nerve Center Test (home office. Kramer v. (See Mas v. Inc. Article II § 2 authorizes federal jurisdiction in “cases between different states”. Rationale for fed.C. which State Cts. is a citizen of the same state as ANY D.C. has been improperly or collusively made or joined to invoke the jurisdiction of such a court. coordinate. B. (iv) A foreign state as plaintiff and citizens of a state or of different states 1.S. §1359 – Parties Improperly/Collusively Made − “A district court shall not have jurisdiction of a civil action in which any party. 2. subject matter jdx is to protect an out of state citizens from the potential for prejudice in a local state courts when litigating against local citizens. See Strawbridge v.000. Amount in Controversy (a) must EXCEED 75K 7| Page . Curtiss. shall have original jdx. Ct. (iii) Citizens of different states and in which citizens or subjects of a foreign state are additional parties. and is between: (i) (ii) Citizens of different states. Case involved a foreign company trying to sue another foreign company.S.

Cited Federal Drug and Cosmetic Act to support state law claim. Thompson – P. (c) Claims CAN be aggregated to meet diversity amount requirement when: (i) multiple distinct claims by 1 P.(b) P. then a plaintiff could invoke federal jurisdiction simply by referring to federal law…e.g. negligence and breach of warranty) (ii) claims by different Ps. held the claim did not “arise under” federal law. or treaties of the United States” (i) Well Plead Complaint Rule – the claim asserted in the plaintiff’s complaint (i. If the rule was broader. Mottley – Ct held that it did not have subject matter jurisdiction because the federal claim at issue was an anticipated defense.. (But see Exxon) unless joint claim (iii)Claims of 1 P. (ii) “loss to defendant” test (iii)“pecuniary burden on defendant” test – if the defendant loses the case. must pertain to a dispute about federal law (c) 28 U.. stripped of any anticipated defenses) must be founded in federal law. unless Ds. Federal Question 1. §1331“The district courts shall have original jurisdiction of all civil actions arising under the Constitution. − − 8| Page . against 1 D. − − − − in looking at a complaint. consider only the claim and not any anticipatory defense the claim is a federal question only if P’s claim requires proof of federal law. wanted to prove state cause of action via federal standard. v. injunction to invalidate antiskinny dipping) Value of what the plaintiff hopes to get from the suit.g. Must “Arise Under” Federal Law (a) Citizenship is irrelevant and no amount in controversy requirement (b) Instead. P.e. See Mas v. alleged negligence by pharmaceutical company. Ct.C. It isn’t enough to refer to federal law in complaint. jointly and severally liable for total amount (e) Non-monetary Claims (i) “value of the object” test – (Willaims v. B. Inc. laws.S. (d) Claims CANNOT be aggregated when: (i) alternative theories by single P. for the same injuries and damages (e. Kleppe. well-plead complaint rule Policy rationale involved. not an element of P’s claim See Merrel Dow Pharmaceuticals. that is it is necessary to the elements of the plaintiff’s claim. via an anticipatory defense See Louisville & Nashville RR v.’s claim governs UNLESS it is clear to legal certainty that he/she cannot recover more than 75K. the ultimate recovered amount is irrelevant. against multiple Ds. A Wellpleaded complaint is limited to a statement of its own cause of action. Perry.’s claim is assumed to be made in “good faith”. P.

Holds that as long as one plaintiff’s claim satisfies the amount in controversy.C. Kroger – Plaintiff (Iowa) sues electric company (Nebraska). Holding of Gibbs was later codified in 28 U. §1367(a) (b) § 1367 (b) (Limits ONLY for diversity cases) – Doesn’t allow supplemental jurisdiction when inconsistent with diversity rules. have original jurisdiction over a claim. it is not required to assess sua sponte 9| Page . held federal subject matter jurisdiction would be inconsistent w/ diversity requirement. Electric company impleads Owen. (3) all original jurisdiction claims are dismissed.C. Supplemental Jurisdiction and Exceptions to Jurisdiction 1. Cts. Ct. Overview − − − − Supplemental jdx will not get a case into Fed. Gibbs/overturns Finnley (i) See United Mine Workers v. on their own. satisfy the amount in controversy.S. Ct. held there was federal subject matter jdx b/c P. Ct. they will need to bring an additional claim in a state court → goes to efficiency Supplement jdx aids this problem by allowing state claims that are “so related to the claims in the action within the court’s original jurisdiction that they are part of the same case or controversy under Article III of the Constitution. may decline Jdx) – May decline if (1) novel or complex state law issue. supplemental jurisdiction can be exercised over claims of other plaintiffs as long as they are part of the same case or controversy (c) § 1367 (c) (Ct. Varian Assoc. it gets additional claims into a Fed cases that is already in Fed. Involve cases where there are related suits with both a state and federal aspect (nondiverse party) or a defendant’s counterclaim to a third party. (i) Acriv. Include claims that involve the joinder or intervention of an additional party. Unless the state law claim and the defendant’s claim have a basis for federal jdx. v. C. could only establish its right to reclaim property by proving a proposition of federal law.” 2. Kroger then asserts a direct claim against Owen. Ct.. He can’t do so because the defendant impleads a third party. – Court held that once court determines whether it has supplemental jurisdiction over a claim. Since Kroger couldn’t sue Owen in an original claim. The state and federal claims must derive from a common nucleus of operative fact. § 1367 – Supplemental Jurisdiction Rules (a) § 1367 (a) (Federal & Diversity Claims) – When Dist. they also have jurisdiction over supplemental claims that are so related that they form part of the same controversy under Article III.S. Gibbs – SCOTUS held that it was appropriate for the lower court to exercise pendant jurisdiction over plaintiff’s state law claim because the claims were so closely related that they “comprised but one constitutional ‘case’. Allapattah – SCOTUS resolved a split between the circuits regarding the exercise of supplemental jurisdiction over plaintiffs in a diversity action whose claims do not. claimed they didn’t receive proper notice of seizure of property per federal law statute authorizing nonpayment of taxes. (4) other exceptional circumstance. The embedded federal issue needs to be substantial to support jdx. (i) Owen Equipment v. (2) new claim dominates. (ii) Exxon Mobil Corp.− But See Grable & Sons Metal Products – P. 28 U.

§1441 (b). i.? (i) only applies in diversity cases (ii) only takes away supp. where it was filed. Removal 1. “principles of comity and federalism demand consideration of these factors each time a district court confronts claims brought under it supplemental jurisdiction” 3. 24 AND by rule 19 Ps 1. Overview • • • gives D. Ct. Ct.whether it should decline to exercise that jurisdiction under §1367(c). §1441 (a) (i) CANNOT remove a diversity case if ANY D. (iii)only takes away supp jdx. There was NO diversity when the notice of removal was filed. must file motion to remand. jdx. (b) Does 1337(b) take away subject matter jdx. against parties joined by Rule 14. that embraces the state Ct. for certain claims.19. Dissent argues that. common nucleus of operative facts. SCOTUS 10 | P a g e . there was diversity when the judgment was rendered. Dist. (ii) Rule does not apply to a fed question case (b) D. the chance to pick the forum comes up when D. to Fed. in this case. Rule 24 = intervening party − D. Ct. Ct. D. Can only go from State Ct. Rationale is that. and D. Removable (a) Must evoke fed. Rule 19 = compulsory joinder 3. there is no need to protect from local prejudice. jdx → (1) diversity OR (2) fed question. − by P. filed notice of removal around the one year maximum mark. However. (c) Any reason under 1367 (c) not to hear the case??? 2. Lewis – Diversity case. someone seeking to intervene as P. §1446(b) (d) If Plaintiff opposes removal. §1446(a) (c) Notice of removal must be filed within 30 days of receiving the pleading or other papers upon which removal is based. §1447 (i) Caterpillar Inc.20. On Exam (a) Does 1337(a) grant supplemental jdx over this claim? YES if meets Gibb.e. must file a notice of removal in Fed. over claims by P. under Gibbs. All Ds who have been served must join in notice of removal. is in State Ct. Rule 20 = permissive joinder 4. Diversity cases may not be removed more than one year after suit is filed can remove ONLY to Fed. is a citizen of the forum. wants to have it removed to Fed. Rule 14 = third party joinder 2. v.

(ii) Note we are primarily concerned with the convenience of the forum for D. should have remanded the case for lack of diversity. if no other district appropriate − for the most part “reside” means domicile (iii)1391 (c) (corporations residence defined)– “Resides” is any place D. has personal jdx over D) so that the action can be brought in a more appropriate forum.S. Ct. has personal jdx. in answer). reside OR (2) ANY district where a substantial part of the claim arose. otherwise it is waived. Venue and Forum Non Conviens 1. objection to venue may be waived (ii) Unlike personal jdx. Allowed Cts. If the forum state has multiple districts. The latter must raise the venue question when responding to P’s complaint (i. or “inconvenient forum” (i) Common law doctrine that preceded modern venue provisions. (c) Forum Non Conveniens. if no other appropriate district. (i) 1391(a) (diversity cases)– (1) where any defendant resides. Generally (a) Convenience of the Court (i) Ct. may instead transfer to a proper venue..C §1391 (a) Two Choices – (1) where all Ds. Venue Rules.e.stated that the Dist. (b) Compare to Personal Jurisdiction (i) Like personal jdx. but it may be an inconvenient and inefficient place for the suit to be litigated. over D. but that the error was not fatal to the adjudication since there was diversity at the time of judgment.. or (3) judicial district where any defendant may be found. look where there are sufficient contacts for personal jdx. if all defendants reside in the same state. 2. II. (ii) 1391(b) (fed question cases). improper venue does not necessarily result in case being dismissed. (2) where claim “arose”. to dismiss an action (even though the Ct. 11 | P a g e . U. If no such district exists then look to most significant contacts. OR (3) a district where any D. is subject to personal jdx at the time the action commenced. Ct. may have personal and subject matter jdx.1) same (2) same.

(4) expense of trial. Dakota where he resided and where the alleged infringement occurred. Cir. court MUST either (1) dismiss or (2) transfer to court where the case could have been brought (if in the interest of justice) 3. Erie solidified rule that state substantive law must be applied in diversity cases (a) Erie RR v. discretionary. Tyson interpreted “Rules of Decision Act” to mean that a federal court can determine the federal common law or general law in its quest to “discover” the appropriate law. not federal common law or “general” law. mandatory. Plaintiff filed suit again plane manufacturer (no real evidence of defective equipment) in CA and transferred to PA. Introduced Balancing Test. incident occurred in PA. Tompkins – Case brought in diversity for a tort. moved to transfer where P. which would allow a “general common law” standard and result in judgment for plaintiff. federal district courts must apply state substantive law. Tyson. (2) compulsory process. where the case might have been brought for (1) convenience of parties and witnesses or (2) interest of justice.(b) Transfer of Venue §1404 (discretionary) & 1406 (mandatory) (i) moves a case w/in judicial system (ii) Under provisions.). e. Blaski – D. (5) public interest and (6) interest of the plaintiff. Piper moved to dismiss for forum non conveniens (wanted complaint in Scottland). the transferee (1) must be a proper venue and (2) must have personal jdx. court MAY transfer action to any other Dist. over D. 2. Overview • • Comes up in diversity cases where Fed. held favorableness of laws for plaintiff not to be considered.” (iii)1404(a). Reyno – Case arising from plane crash in Scotland. D. III. Cts. Pre-Erie: “Laws of Several States” in a Trials at common law (a) Swift v. v. judge must decide an issue and the question is whether state law must be followed Fed. in a diversity case. PA law would not support liability for “trespasser”. Ct. (1) availability of proof. The Erie Doctrine A. Blaski) Hoffman v. Ct. (3) jury view of premise. applied Swift v. (i) SCOTUS overruled Swift v. IF venue is improper under §1391. Tyson and held that. Tompkins was a PA citizen. As such. judge must apply State substantive law under: (1) X Amendment and (2) Rule of Decision Act B. State Substantive Law 1. actions in applying Swift standard were 12 | P a g e . − − BOTH must be true w/out waiver by D. Even if venue is proper under §1391. the Cir. held that the transfer was improper b/c it was not one of the places where the claim “might have been brought. resided (no reason for this mentioned by Ct. Ct. was charged for patent infringement in N. Cases (a) Piper Aircraft Co.g lost his arm. (Hoffman v. (iv)1406.

York – (diversity case) York sued D. Byrd v.. York lost on application of New York statutes of limitations grounds. SCOTUS held that the federal procedure would prevail because there is no clear certainty that a different result would follow from a judge v. (2) encouragement of forum-shopping and (3) unnecessarily frustrated the deliberately chosen policies of the state...” But. Byrd v. they surpassed the Ct’s mandate from merely adjudicating the law to determining the law. jury. a diversity plaintiff shouldn’t have an advantage simply because the case was brought in federal court. (b) If the federal government’s policy is important.. provides that the Supreme Court “shall have the power to prescribe general rules of practice and procedure…for cases in the [federal courts]. and the federal interest is slight. Ragan v. immunity against negligence.. Hanna v.e.. SCOTUS held that the claim was barred and KS law should apply because it is an “integral part” of KS statute and should be given effect.g. Guaranty Trust Co. Under federal law. York argued should apply the federal rule. and the state interest is slight.” The Federal Rules of Civil Procedure were adopted in 1938 and are amended pursuant to this Act. Plumer (service of process) 13 | P a g e . Outcome Determination Test – If a rule is “outcome determinative. more likely that the federal rule will be enforced (i.. rule will be considered substantive) e. Related to the difference in standards for service of process under Kansas v. State process would be for the judge to make the determination of the employer’s status.g. Federal-state conflicts C. likely to make a difference in result. 2. v. (b) Rules Enabling Act – 28 U. Merchants’ Transfer & Warehouse.e. rules “shall not abridge.g. Interest Balancing Approach – Court balances the state and federal policies underlying the rules in question e. York could still bring the claim. Noted the federal system’s interest in maintain its system to distribute trial functions between judge and jury. Byrd v. Blue Ridge Rural Electric.” i.e. That is.g. e. 4. v. Blue Ridge – Claim regarding employee compensation and D’s alleged status as a “statutory employer. there should be deference to controlling provisions in the Federal Rules E. i.. Merchants’ Transfer & Warehouse Co. SCOTUS held that New York law should apply because Erie required that the outcome under both state and federal should be the same. Federal Procedures. rule will be considered procedural) E. The federal process is via jury. Deference to a Controlling Federal Rule – When the substance-procedure distinction is ambiguous. (ii) Court based its decision on (1) irrational discrimination in results between diverse and non-diverse litigants.” The latter would give D. more likely that the state rule will be enforced (i. §2072.e. follow Federal Procedural Law (a) Authority to determine practices and procedures within the federal court system comes from Congress.C.S. Ragan v.g. 3. for breach of fiduciary duty. Federal Cts. Substance-Procedure Distinction 1. enlarge or modify any substantive right. York (a) Guaranty Trust Co. it was probably substantive. Blue Ridge & Ragan (a) If the state’s policy is important.unconstitutional.

g. e. Inc. – Case involved the “right of publicity” of Elvis Presley. Ct. that is (1) to discourage forum shopping and (2) avoid inequitable administration of the law. Pro Arts Inc. to petition 6th Circuit to recall mandate and rehear case. Ohio would bar the claim on the basis of inter-spousal immunity. case of first impression or conflicting rulings (a) Follow Decision of the Highest Court (b) OR determine plausible Decision the Highest Court (i) Factors ETC. If application of the rule would (i) produce irrational differences in results and (ii) encourage forum shopping. if not. TN law did not have any guidance. Ct. Case was in the 2nd Circuit. Summons served to the executor’s residence and complied with federal civil procedures. should look to the twin aims of Erie. E. Ct. Policies of Erie Approach – Must look to the policies of Erie to determine whether rule is actually substantive or procedural. must follow the choice of laws principle of DE where the action was brought. Framework for Erie Analysis on Test Ask whether a federal law is on point? (a) If YES → apply the federal law as long as valid 14 | P a g e .Hanna v. Mass. (b) Choice of law where suit is filed (i) Klaxon Co. Stentor Electric – Case arose from a breach of contract in New York. – After Union Bank decision the prior case was on remand from 6th Circuit decision to district ct.g. SCOTUS held that Cts. F. Looked to the 6th Circuit for guidance since it had heard a relevant case and TN also has jurisdiction on TN cases. Ultimately stayed judgment to allow P. granted injunction. Dye – Couple from OH in car accident in FL. Plumer – Auto accident case. contended that rights did not survive the personality’s death. Most Significant Relationship Test (i) Pennington v. Cir. Inc. Determining What the State Law Is 1. it’s procedural. Plumer (service of process) D. was dead and executor of estate was named D. Hanna v. She filed in FL where lex loci delicit was traditionally followed. law called for in hand delivery of summons. Wife sued husband for injuries under negligence claim. looked to Ragan and decided the policy was important b/c the legislature had just amended it. (2nd Circuit case based on privacy of an individual…) (ii) Commerce Union Bank v Coors – Lower court ruling involving the “right of publicity” of a deceased country star. held that the most significant relationship should trump lex loci since both parties were domiciled in OH. Conflicts of Law . 2nd Circuit did not recognize the property right. The Ct. 5. SCOTUS reversed holding that the Ct. v. the matter is substantive. (iii)Factors ETC. D. v. e. D.Issue arises when there is a diversity claim and there is a question of which state law applies (a) Lex Loci Delicti (law of the place of injury) v. of Appeals should apply. v. Pro Arts Inc.. The Erie Educated Guess − Issue goes to which law to apply when the law on point is questionable.

York – in that case. and (c) a demand for the relief sought. Common Law Pleading .highly technical. has not followed this test since York. Liberal standard 1. forms of action. Gibson – SCOTUS reverses the dismissal of the complaint for failure to state a claim: “the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Code Pleading – abolished forms of action and distinction between law and equity. will people flock to the federal court system 1. must plead a cause of action. look to the Rules Enabling Act (b) If NO → then must follow state law IF substantive (i) Substantive Test: − Outcome Determinative – If the state law is ignored will the outcome be different? Guarantee Trust v. Problem with the test is that everything can be view as substantive. Pleadings Complaint – Service w/ Process A. The Ct.” 2.See Hanna v. Purpose is to give the respondent “notice” of the basis of the claim.Notice Pleading . Historical Origins 1. SCOTUS held that the federal system had an interest to use its own procedure − Twin Aims of Erie – Ask whether if federal judge ignores this state law. Claim for Relief Rule 8(a) “ A pleading that states a claim for relief must contain: (a) a short and plain statement of the grounds for the court’s jurisdiction… (b) a short and plain statement of the claim showing that the pleader is entitled to relief. Rule 8 . Avoid forum shopping 2. if state law applied then the claim would be barred by statute of limitations. must plead facts (not legal conclusions or evidence) B. − Interest Balancing Test – Does the federal system have a particular interest in applying the federal standard? Bryd v. (a) Conley v.” (Also Dioguardi) − This is an extremely liberal standard. which may include relief in the alternative or different types of relief. Blue Ridge – state law would have had jury review a particular issue. distinguished between law and equity 2. It is very difficult to prove that pleading is insufficient 15 | P a g e . Plumer – regarding federal rule 4 service of process (i) Validity Test. Avoid inequitable administration of the law IV.

intends. and when a court should apply a more liberal pleading standard.(b) Bell Atlantic Corp. the supporting facts in this case would be hard for the plaintiff to get w/out discovery. Once a claim has been states adequately. and other conditions of a person’s mind may be alleged generally. Twombly itself suggests that its holding may be limited to cases likely to produce ‘sprawling. Twombly held that in some cases. Plaintiff’s Reply to Cross-claim or Counterclaim – Rule 7 − − replies to counterclaim or cross-claim must also be filed Rule 7(a)(3). (i) Sweeny Co. as required by Twombly. Putative class action against incumbent local exchange carriers. there is some confusion as to when a court should require particular facts to be pled. held that P. alleged that D.” (i) Complaint must state a plausible claim for relief (ii) “context-specific task” (iii)SCOTUS rejects the notion that Twombly applied only to antitrust actions C.Rule 9(b) 1. filed motion to dismiss for failure to state a claim (Rule 12(b)(6)) and it was granted. otherwise replies are not allowed UNLESS ordered by the court Rule 7(a)(7) Some jdxs require P. chance to amend. v. Problem was that the plaintiffs gave a conclusion with no supporting facts. v Engineers – P. Ct. knew he wouldn’t pay him. breach of contract.e. (a) special damages require “specificity”. Twombly. affirmatively to plead matters that he plans to offer to overcome D’s affirmative defense e. SCOTUS basically said we didn’t mean what it seems we said in Conley. customers). or conspiracy. and hugely time-consuming’ litigation. place and content of the false misrepresentation and what was gained or given up as a consequence of the fraud. However. therefore there must be an agreement to conspire. 2. D. 3. intent. fraudulently induced him to do work even though the D. P must plead particular facts in their complaint. Answer – Defendant’s Response 16 | P a g e . D. they must be supported by factual allegations. Twombly’s Particular Set of Fact. wanted punitive. costly. Rule 9(b) is referred to as a “heightened” or “special” pleading standard. “unreasonable restraint of trade…by contract. In alleging fraud or mistake. something that would not normally flow from a normal event (b) Malice. it may be supported by showing any set of facts consistent w/ the allegations. i. Special Pleadings . Yet. SoL. While legal conclusions can provide the framework of a complaint. gave P. Charge was they the ILEC’s inflated prices and violation of Sherman Act. Ct. Didn’t sue for breach. should be tolled? E.e. knowledge.” (a) Ashcroft v.g. Iqbal continues to raise the question of what standard the Ct. combination. Recent cases indicate that “specific facts” are not always required. a party must state with particularity the circumstances constituting fraud or mistake. Iqbal – SCOTUS held that “pleadings that are no more than conclusions are NOT entitled to the assumption of truth. same prices. needs to include time.” Evidence was that the ILECs all acted the same way. The plaintiff is all subscribers (i. “At present.

Ct. is right. which must be set forth in the responsive pleading (d) An affirmative defense adds new facts that defeat the claim even if the plaintiff proves all elements. an answer is a pleading a motion is a request for a court order (e. asserted habeas corpus complaint. etc. Timeframe. generally denies the allegations 3. is injecting a new fact and if D. then D. (b) General Denial (only allowed by some states) (i) No particular form required..g. Smith – P.e. Generally. estoppel. held that sanctions were appropriate under Rule 11. submitted “form answer” more in line w/ a general denial. 12(e) motion for more definitive statement). but a party may assert certain defenses by motion. . Admission and Denial – Rule 8(b) (a) Federal Approach (i) D. assumption of risk. Seven Rule 12(b) Defenses– every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required.’s pleading to have been stricken w/ case going forward w/out response (basically an admission). 1) 17 | P a g e lack of subject matters jdx.). statute of limitations. i.g. statute of limitations).g. deadline (a) Generally responsive pleading (answer) must be served within 20 days after being served with a summons and complaint (Rule 12(a)). except damages − White v. can be waived so MUST assert in response pleading (b) in an affirmative defense. response or after more definitive statement is served − (b) a party must serve a reply to an answer within 20 days after being served with an order to reply. (c) Rule 8(c) includes a non-exhaustive list of several affirmative defenses (e. (i) But see Rule 12(a)(4) for rule on motions − − a motion is not a pleading. the D. 2.1. Affirmative Defenses – Rule 8(c)(1) (a) D. stated that it would have been proper for D. but gave them one more chance. unless the order specifies a different time. can be raised either in a motion or answer) responsive pleading postponed until 10 days after Ct. wins the case (e. the answer needs to make clear that D. must respond to each allegation in complaint by admission or denial (ii) FAILURE TO DENY is an admission on anything asserted by P. MUST RAISE affirmative defense in answer. statute of frauds. the party asserting an affirmative defense has the burden of proving it 4. D. 12(b) motion to dismiss. Ct.

even on appeal. otherwise waived Rule 12(b)(6-7) can be raised ANY TIME during the trial. Rule 12(b)(1) can be raised ANY TIME during the cases. converted to a summary judgment See Rule 56 on summary jdgmt 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 Must be filed BEFORE the responsive pleading Court may strike from a pleading an insufficient defense or any redundant. The facts alleged were sufficient to support the claim. − − − IF dismissed → may get a second chance b/c dismissal is w/out prejudice these standards were not changed by Twombly/Iqbal Patridge v. (2) accept all wellpleaded facts as true. summons & copy of complaint). immaterial. impertinent. but not appeal. failure to state a claim upon which relief can be granted. insufficient service of process. and (3) view the facts in the light most favorable to the plaintiff. A party may move for judgment on the pleadings after the pleadings are closed but early enough not to delay trial. insufficient process (i. Two Unknown Police Officers – Fact pattern of case is like Twombly except that the plaintiff provided sufficient support to the “conspiracy” type claim. It wouldn’t have been enough to just cite the experience of their son…had to show that the custom of inadequate care was persistent and widespread. improper venue. and 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 Rule 12(b)(2-5) MUST be put in first Rule 12 response. Same standard as Rule 12(b)(6) motion If court considers evidence outside of pleadings. P alleged that the Houston police department had a policy of denying medical care to detainees. or scandalous matter (ii) Rule 12(c) – Motion for Judgment on the Pleadings − − − − − (iii)Rule 12(e) – Motion for More Definite Statement − − (iv)Rule 12(f) – Motion to Strike 18 | P a g e . (i) Rule 12(b)(6) Failure to state a Claim Motion – in deciding on motion a Ct.e.2) 3) 4) 5) 6) 7) 8) − − − lack of personal jdx. MUST: (1) not consider anything outside of the pleadings.

(2) where is it patently clear claim has no chance of success and no reasonable argument and (3) a competent attorney would come to the same conclusion. (e) too draconian EX: Eastway Construction v. D.” (or by a nonfrivolous argument for a change in existing law). b/c there was no basis for the claim. then brought action.− Court may act on its own or on motion brought before responsive pleading is filed EX: Fox v. (i.” New version of Rule 11 means that : (1) no longer enough for an attorney to claim that he acted on good faith.” Defendant moves to dismiss under : 1. out of business. 12 (b)(6) – failure to state a claim. and “are warranted under existing law. remanded to trial ct. Reasonable Inquiry Standard – Rule 11 − Subjective Bad Faith Standard (before 1983) (a) provided that the attorney’s signature on a pleading automatically constituted a “certification” that attorney believed that there was “good ground to support” the claim (b) Standard was vague and subjective (c) rare that a violation could clearly be established − “Reasonable Investigation” (1983) (a) Attorney who filed pleading without “reasonable investigation” was subject to mandatory sanctions (b) attorney’s signature implies that “to the best of the person’s knowledge. P. was excluded from bidding on NY city contracts after bad conduct by officers (bribes and defaults). City of New York – P. facts consistent w/ K) 2. didn’t show breach. information and belief. The exclusion put P. formed after an inquiry reasonable under the circumstances”. but should the employer reap the benefit or no taxes.e. Ct. − “Reasonable Investigation” with chance to cure (1993) 19 | P a g e . Or show unjust enrichment…D. F. 12 (e) – give more definite statement of the forth claim (harassment) 3. Lummus Company – Plaintiff sues his employer for breach of contract by unjustly withholding salary and by denying plaintiff’s holiday leave and in other ways “harassing him. of App. can’t say that he wasn’t compensated. i. the allegation have “evidentiary support” (or are likely after discovery). that he was promised $$$ from taxes if not paid. granted summary judgment for D. moved for sanctions on the basis that it had expended public funds on a frivolous claim. (c) The rule sets for an objective/ “negligence like” standard (d) An attorney acting in ignorance of the facts and law that would be disclosed by a reasonable investigation cannot take refuge in good faith or purity of heart alone. 12 (f) – motion to strike on pain and suffering charge (didn’t allege tort) Needed some facts to show that there was some sort of implied contract outside of the written contract. Ct.e. w/ orders to impose “appropriate sanctions.

but for the mistake 20 | P a g e . P. which conceding had been made w/in SoL.” (d) Rule 11(b). (2) party to be brought in must have received such notice. (b) Amendment asserts a claim or defense that “arose out of the same facts in original pleading. a party may amend its plead ONLY IF: (a) opposing party gives written consent OR (b) Ct. Fortune. (3) party must or should have know that.” OR (c) Amendment changes the party and. (d) Schiavone v. but (i) requires notice and opportunity to cure.(a) Same standard as 1983 version. and (ii) knew or should have known is was the correct party. and (ii) sanctions are discretionary (b) 21-day safe harbor provision gives a party the opportunity to withdraw the pleading before a sanction motion is filed (c) SCOTUS dissenting opinion argued that the revision made the rule “toothless. held that “relating back depended on four factors: (1) basic claim must have arisen out of the conduct set forth in the in the original pleading. grants leave (shall be freely given where justice requires) Rule 15(c) – “relating back” − An amendment to a pleading may relate back to the date of the original pleading when: (a) the law providing SoL allows a relation back. Amendment Rule 15(a) – Amendment b/f Trial − a party may amend its pleading once as a matter of course: (a) Before being served w/ a responsive pleading (b) W/in 20 days after serving the pleading IF a responsive pleading is not allowed and the action is not yet on trial − otherwise. the party to be added (i) received notice and will not be prejudiced. within 120 days from service of the original pleading. sanctions may be imposed for later advocating a position w/out sufficient basis even though there was sufficient basis when the claim was filed (e) Rule 11(c)(4) – sanctions limited to (1) what suffices to deter repeat conduct or (2) comparative conduct by others. Court MAY issue monetary or non-monetary sanctions (f) Rule 11(c)(1) – law firms may be held liable for violations on an individual attorney (g) Rule 11(c)(5)(A) – limitation on sanctioning represented parties for frivolous legal argument (h) Result of the amendment has been a decrease in Rule 11 motions (i) Hadges v. argued that under Rule 15(c) the amendment “related back” to the earlier filing. Yonkers Racing – New version makes clearer that an attorney is entitled to rely on the objectively reasonable representations on the client G. aka Time – Time agent refused service of process b/c Time itself was not named as D. Ct.

not related to the original claim [NOTE: 1336(b) is NOT AT ISSUE b/c jdx is only taken away IF claim is by P. arising from the same transaction or occurrence − − must be asserted in this case cannot do it in another case. Why not diversity? 4.e. not P. Why is it a compulsory counterclaim? 13(a)(1) 2.? Gibbs.. Claim Joinder by Defendant 1. Why doesn’t 1367(b) not take it away? (i. same T/O. otherwise waived (ii) permission (13)(b).. crossclaim. Question? 3. counterclaim.” (Rule 18(a)) (b) While the language of Rule 18 is permissive.? (3) IF NO → is there supplemental jdx? B. nucleus of common facts 5. Cross-claim (Rule 13(g)) –claims brought against a co-party 21 | P a g e .] (d) ON EXAM: 1.) 2. V. can assert ANY claims against D. made by D. Overview • • • • tells us how many claims Rule 18 → permissive joinder of CLAIMS Rule 20 → permissive joinder of PARTIES for every claim ask (1) can it be joined (2) is there subj. or third-party claim may join…as many claims as it has against an opposing party. Rule 18(a) → P. Rule 18 allows for liberal joinder of claims (a) “A party asserting a claim.the action would have been brought against it and (4) 2nd and 3rd requirement must have been fulfilled w/in prescribed period.g. as long as (1) arise out of the same transaction and occurrence AND (2) there is a common question of law (a) may aggregate 2. matter jdx. certain claims must be asserted or the party will not be able to assert them in a subsequent lawsuit based on preclusion principles e. Why not Fed. Claims Joinder by Plaintiff 1. Counterclaim Rule 13(a)/13(b) – claim brought against an opposing party (file w/ answer) (a) two kinds: (i) compulsory 13(a)(1). matter jdx. SCOTUS held for Time b/c they didn’t know about the claim until AFTER SoL had run. Why does 1367(a) grant subj. Joinder A. Linchpin is notice. claims that arise out of the same transaction or occurrence C.

Rule 20(a)(2) –persons may be joined in one action as defendants IF: (a) any right to relief is asserted against them that relates to/arises out of the same transaction. and (b) Any question of law or fact common to all defendants will arise (i) Gorgan v. but the Ct. Permissive Joinder – Rule 20 1. must be liable to it. looked at whether or not the P. occurrence. Held that D2 could be joined.. for injuries. Ct. or series of transactions or occurrences. that would destroy diversity. court must grant leave (i) Barab v. Third-Party Impeader – Rule 14 • • The only person that can use Rule 14 is a defending party Comes up when the third party may be liable to D. not the Defendant. A person who is subject to service of process and whose joinder will not deprive the court of subject matter jurisdiction must be joined if: (a) In his absence. Rule 14(b) (a) when claim is asserted against a plaintiff. or series of transactions or occurrences. sought to join D. for the underlying claim [for which he/she is being sued] (a) non-party is or may be liable to defendant for all or part of the claim against the defendant. Compulsory Joinder – Rule 19 1. Menford – Barab slips on a doormat and sues Menford. complete relief cannot be accorded among the existing parties (Rule 19(a)(1)(A)) (b) He claims an interest relating to the action and is so situated that deciding the case in his absence may 22 | P a g e 1. (c) and 10 days or less have passed since defendant filed its original answer (d) if more than 10 days. occurrence. Rule 14(a) –defending party may sue (or implead) a non-party if: . and (b) any question of law or fact common to all plaintiffs will arise 2. but that D.(a) Maybe brought if claim arises out of the transaction or occurrence that is the subject of the original action (i. Babson – Case where P. retailer. it may bring in a third party if this rule would allow the defendant to do so E. Menford impleads Channel Home Center as the supplier of the doormat. was joining for the purpose of joining. Channel attempts to implead Joy Plastic. F. (b) once third-party is “in” it can bring in another party. 2. Rule 20(a)(1) –persons may join in one action as plaintiffs IF: (a) they assert right to relief that relates to/arises out of the same transaction.e. always permissive) D. does not it allow it under Rule 14 because Joy would arguably be liable to the Plaintiff.

(i. Discover and Disclosure A. otherwise. will not dismiss unless P. and (d) whether plaintiff would have an adequate remedy if the action were dismissed. Objectives of Discovery (a) no surprise in Fed. Objectives and Policies 1. Civil Trial (b) rules include electronic and stored information B.(i) as a practical matter. impair or impede his ability to protect that interest (Rule 19(a)(1)(B)(i)) (ii) leave an existing party subject to substantial risk of incurring multiple or inconsistent obligations (Rule 19(a)(1)(B)(ii)) 2. VI. the Ct. can remand to State Ct.e. all the Ct. has an alternative forum. (b) extent to which prejudice could be lessened (c) whether judgment would be adequate. If a person who is required to be joined cannot.) 3. or (2) organized in response to each document request (c) Requests for admission (d) Oral depositions (Rule 30) (i) to depose a party. For Parties (a) Written interrogatories (Rule 33) (i) Limited to 25 (including all discrete subparts) unless otherwise stipulated by the parties or ordered by the court (ii) Scope – may ask for anything relevant to any party’s claim or defense (iii)Response and objection must be served w/in 30 days (iv)May respond by referring to certain documents or making documents available for inspection (b) Document requests (Rule 34) (i) no limit on the number of requests (ii) Scope – may ask about anything relevant to any party’s claim or defense (iii)Response and objections must be served w/in 30 days (iv)The documents (or electronic data) must either be produced: (1) as they are kept in the ordinary course of business. Discovery Tools and the Concept of Required Disclosures 1. if it was removed. can do is dismiss. Only time the Ct. the court must determine whether to dismiss or proceed with existing parties by considering: (a) extent to which judgment might prejudice absent person or existing parties. “reasonable” notice is required under Rule 30(b)(1) − 23 | P a g e reasonable undefined .

Rule 26(b)(1) – scope of discovery is broad (a) Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense (i) to be “relevant” information need not be admissible at the trial (ii) Discovery need only to appear “reasonably calculated to lead to the discovery of admissible evidence” (b) For good cause. tried to do it in Alabama and not the principle place of the CEO’s business as is customary (ii) Basics of Discovery Planning C.e. immunity is NOT absolute (ii) Adversary may be able to obtain information IF (1) highly relevant and (2) not available from other sources. 24 | P a g e . limit to 10 (Rule 30(a)) 2. Taylor (tugboat company that did interviews) SCOTUS held that attorney work product (i.e. Must take reasonable steps to avoid imposing undue burden/expense Salter v. 1 day or 7 hrs. where the deposition will be taken 2. must issue a subpoena from the Ct. information prepared or obtained in anticipation of litigation or preparation for trial) is generally immune from discovery. Work Product – Rule 26(b)(3) (a) Attorney work product( i. Privileged matter is not discoverable (a) attorney client privilege (b) confidential communication (i) United States v.− − must be served on ALL other parties to the action (not filed w/ Ct. Upjohn. Scope of Discovery 1. (but parties may stipulate around these limitations) (e) For Non-Parties (i) Subpoena for documents and deposition (Rule 45) − must be taken via subpoena 1. Upjohn – Ct. the court may order discovery of any matter relevant to the subject matter of the action 2. Attorney-client privilege extends to lower-level employees of the corporation if: (1) Communications concerned matters within the scope of employees’ corporate duties and (2) Employees were aware that they were being questioned so that corporation could obtain legal advice 3. − Hickman v.. information prepared or obtained in anticipation of litigation or in preparation for trial is generally immune from discovery (i) However. attorney-client privilege extends only to senior management).. SCOTUS rejected the “control group test” (i.e. denied request for deposition b/c D.) limits on deposition 1. for the Dist.

Protective Orders 25 | P a g e .Immunity is not absolute. some work product is absolutely protected (i) mental impressions (ii) conclusions (iii)legal theories 4. document requests. orders otherwise 2. will not be subject to discovery (b) Non-testifying experts (i) Retained or specially employed in anticipation of litigation − Subject to discovery if: (i) Rule 35(b) applies. (accounting report to get information on embezzlement case) (c) prevents “freeloading” (d) However. Mandatory Self-Initiated Discovery (a) Rule 26(a)(1) – requires mandatory disclosure of certain information w/out discover (i) names and addresses of individuals w/ relevant information (ii) description of relevant documents (iii)computation of each category of damages (iv)disclosure of any relevant insurance agreements (b) Must be made w/in 14 days of Rule 26(f) conference UNLESS Ct. Adversary may be able to obtain information if highly relevant and not available from other source Rule codified in FRCP 26(b) (3). Bank of the Orient v. (iii) discuss any issues about preserving discoverable information. and (iv) develop a proposed discovery plan E. Superior Ct. (ii) make or arrange for disclosures under Rule 26(a)(1). (b) Not routine report. Experts & Consultants (Rule 26(b)(4)) (a) Experts who may testify at trial (i) Facts about or opinions held by the expert are subject to discovery by interrogatories. Mechanics of Discovery 1. but in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b) (b) Parties must (i) consider the nature and basis of their claims and defenses. including drafts of report. and/or deposition (ii) Parties often agree that documents relating to experts. Scheduling Conference (a) Rule 26(f) requires the parties to confer as soon as practicable. or (ii) there are exceptional circumstances and it is impracticable for the information to be obtained by other means Not subject to discovery (ii) Informally consulted in anticipation of litigation − D.

dismissing the case.Adjudication Without Trial A. Ct. forcing the losing party to pay attorney’s fees. where the action is pending…” (a) Good faith required (b) Ct. may enter a protective order for good cause to prevent annoyance. oppression or undue burden or expense (c) Means of accomplishing this is via Ct. Rule 37 – range of sanctions for discovery abuse (a) e. affidavits and discovery products demonstrate that there is no genuine issue of material fact. etc. Ct. then converted to summary jdgmt Rule 56 (e) Austad v. Judgment on the Pleadings 1. Each was not allowed under the terms of the K. THEN judgment on the pleading can be granted IF (a) both parties agree on all factual issues. D. Discovery Abuse and Sanctions 1. must assume that all inferences and 26 | P a g e . but filed AFTER pleadings closed. considers evidence outside of the pleadings. If granted most courts allow for the plaintiff to amend the case. files a motion for judgment on the pleading where D. (b) Judgment on the Pleadings (12(c) Motion) → Same standard as 12(b)(6) motion. Summary Judgment → Rule 56 1.’s answer admits all allegations of the complaint (c) D files a motion for judgment on the pleading on theory that the plaintiff’s claim fails to state a claim (NOTE: different than Rule 12(b)(6) b/c under the latter the pleadings are not closed. so Ct. (2) time to amend has expired. had admitted all the elements of liability. Rule 26(g) – upon sending or answering discovery request. would not be able to obtain relief on any theory fairly encompassed within complaint.)C (d) If Ct. and (3) early enough not to delay trial. has broad discretion VII. but w/ no evidence yet received (c) Summary Judgment (Rule 56) → When pleadings.g. embarrassment. done before evidence is received. but asserted three affirmative offenses. (b) Ct. Other “Devices” (a) Dismissal for Failure to State a claim (12(b)(6) Motion) → P. discretion F. an attorney automatically makes certain “certifications” (similar to Rule 11) 2. Summary Judgment v. so that a reasonable juror COULD ONLY find in favor of the movant. pronounced judgment on the pleading in favor of P. “Not he said she said” type situation. b/c D. ordering the discovery. Rule 26(c) provides that “a party or any person from whom discovery is sought may move for a protective order in the Ct. case depends solely on a question of law (b) P. United States – U. Rule 12(c) – (1) pleading of both parties has been filed. no evidence considered. answered and admitted all the relevant allegations.1. brought suit to foreclose on mortgage and Austad’s personal liability on guarantee. B. must assume all allegations are true.S.

moved for summary jdgt one basis that there was no communication w/ police. (i) Unlike in pleadings 12(b)(6) or 12(c) motions. The burden ONLY shifts to P. if D. so heresay evidence may not be considered (iii)Decided by the judge/court − Warren v. noted that for purposes of summary judgment it didn’t matter if P. moved for summary judgment and supported his claim with affidavits from both alleged recipients of the slander stating that the statement alleged were not made. did not address the fact that a police officer was alleged in the restaurant at the time of not serving and he was the same officer that ultimately arrested her. (b) Celotex Corps v. held for P. did not exercise right under 56(f) to obtain additional time to obtain additional facts to support claim. decides the facts 1. 56(c) considers the evidence (e. P. Decided by jury. granted summary judgment. FRCP 38 preserves the right to a jury: (1) as declared by the 7th amendment OR (2) as provided by federal statute 27 | P a g e A. of App. − 3. D. documents.Ct. b/c D.) sued D. Catrett . 2. for slander. Ct. deposition testimony.’s own deposition stating that “D. alleged “conspiracy” b/w restaurant owner and police officer to federal question requirement. only refused service b/c he feared a riot. etc. discovery and disclosure materials on file and any affidavits show that (1) there is no genuine issue as to any material fact and (2) that the movant is entitled to judgment as a matter of law. sued D1. which clearly wasn’t the case. • Trial Resolves disputes of fact. – Civil Rights case. has heavy burden: (1) must establish as a matter of law that he is not liable under any theory fairly presented by the allegations of the plaintiff’s petition and (2) no reasonable mind could differ as to the conclusion. Standard for Granting Summary Judgment (a) Rule 56(c) – should be rendered if the pleadings. BUT if no jury then the Ct. Sh. The D. P. alleged that the slander was published to two people. D1. not served food and then arrested by the local police.g. (D2 placed P. Relevance of the Ultimate Burden of Proof: Summary Judgment b/c Opponent “Can’t Prove Her Case” (a) Dyer v. only made tacit signal to employees. had reversed summary judgment due to “petitioner’s failure to support its motion with evidence tending to negate” claim. affidavits. establishes the absence of a genuine issue. If granted that is the end of the case. for negligence. Noted that P.) (ii) Only evidence that is admissible can be considered. Medley – P. P. on table to dance and it broke. looked to evidence from the P. Ct. D.” Adickes v. Right to Jury Trial .) D1. McDougall – Dyer (P.credibility determinations would in favor of the non-movement. Kress & Co. could not have prevented the incident. moved for summary judgment on the bases that the law requires gross negligence. met evidentiary requirement. Ct. VIII.

then the party has a right to have a jury decide those factual questions. legal remedy) − − remedy at law → damages equity → injunction. (b) The first prong of the test is problematic because a good case can be made for both sides. like Brennan. the test usually boils down to the second inquiry.e. (i) Tull v. Dist. SCOTUS held that the jury trial right can apply to the statutory claim. recession or reformation of K.e. Subject to both an injunction and penalty (damages). (i. (ii) If unclear → Examine the remedy sought and determine whether it is legal or equitable in nature. D. whereas the injunction was an equitable remedy. The constitution needs to be a living document.the right to trial by jury shall be preserved…” BUT not for equitable claims. equity v. SCOTUS reverses lower Ct. Hence. are “loathed” to make amendments to the constitution i. SP. sought an injunction to keep doing business. Beacon maintained that if the judge decided the equitable claim first. Ct. but not the amount of the penalty.(a) “in suits at common law…. ruling. Jury Demand and Waiver (a) Can be waived if not demanded properly 28 | P a g e . United States – Dispute regarding the violation of the Federal Clean Water Act. 2.Beacon brought suit for anti-trust violation. (iii)SCOTUS says that the second inquiry is more important. The anti-trust aspect of the case was a determination of fact (i. Westover . Historical Test (a) Two Prong Test (i) Is this claim analogous to one that existed under the common law? − Compare the claim to the 18th century action brought in the courts of England prior to the merger of courts of equity and law to determine whether the claim is legal or equitable. issue was whether the injunction order could deprive Beacon of its right to jury. merits jury privilege). More liberal justices. RULE: IF there are both legal claims and equitable claims and overlapping factual questions. (b) Beacon Theatre v. it would be depriving Beacon of its right to a jury trial w/ respect to factually issues decided by the judge. we have no choice. want to modernize. If claim didn’t exist. Idea that we should not read things into the constitution. then look to analogous claims. (c) FOR EXAM: (i) Determine jury right issue by issue (not an all or nothing proposition) (ii) IF an issue of fact underlies both an equitable and legal claim → jury trial (iii)try jury issue first 3. finding that the entire claim must first be heard by jury. Beacon appealed. (ii) Chauffeurs.e. extended injunction. Conservative Justices like Scalia. Terry – − Justice Brennan argues that the first prong of the test should be abandoned because “we are not legal historians” and therefore not qualified to make such determination. Teamsters and Helpers v.

29 | P a g e 1. (e) Lewis v. P. thus the acts occur under the umbrella of the court itself. is trying to ensure that a jury is impartial and unbiased. If P. reason for the challenge cannot be illegal (i) Edmonson v. related to party) OR (2) do not meet general requirements for service (e. doesn’t need to do so. not a perfect one. sought new trial citing as one of the reasons related to this question during the voir dire process. the court has the discretion to grant a motion for a jury trial. later changes its mind. (d) Once one party makes a demand for a jury trial. requested D supply a race neutral explanation for striking the two jurors.g. Case involved a job-site injury. complaint and answer) (c) Under FRCP 39. P.g. – SCOTUS extended holding in criminal cases that a peremptory challenge cannot be used on the basis of race. no a citizen. must (1) demonstrate that juror had failed to answer honestly and then (2) show that a correct response would have provided a valid basis for a challenge for cause. Rationale being that although the attorney is a private actor. (i) Jury demand may be included in pleading (e.(b) Under FRCP 38. Verdict found for D. Leesville Concrete Co. then the other party does not need to do so.” For new trial. So. he is performing a government action during the jury selection process. Time – As long as satisfied demand under state statutes.g. the parties are trying to obtain a jury that is most favorable to their case. (a) Disqualified when (1) unavoidable biased against a particular party (e. demand jury trial. SCOTUS held that it was a harmless error: “a litigant is entitled to a fair trial. So in some senses they are working at cross purposes. illiterate) (b) Unlimited number (c) McDonough Power Equipment v. to determine whether the standard applied in the context of a civil case where the two attorneys are private actors. D. demand must be made no later than 10 days after last pleading served. Peremptory Challenges (a) May be exercised w/out providing a reason (b) Limited to 3 peremptory challenges in federal court (c) However. if P. Voir Dire and Challenges • • Ct. The juror’s son had been a victim of an injury. 2. will also have to agree. “working toward the same goal of a fair and impartial jury” the voire dire process has no meaning outside the government context. Greenwood – Juror failed to respond when questioned about whether an immediate member of their family had been a victim of a “serious injury” that resulted in a “disability” or “prolonged suffering”. then it satisfies it under federal standards B. SCOTUS looked to its holding in Batson. used two of its three peremptory challenges to remove African Americans (Edmonson was an African American). if a jury trial is waived. “For Cause” Challenges . then D. then D.

− Test that comes out of the case is (1) prima facie case. contended that timesheets were the reason for the dismissal and the company’s record of employing people over 50. P. Two types (only difference is timing) (a) JMOL before case goes to the jury (i) Rule 50(a) motion (ii) Previously known as “directed verdict” (b) JMOL after jury returns a verdict (i) Rule 50(b) motion (ii) Previously known as “judgment notwithstanding the verdict” (iii)same standard as 50(a). should given credence to evidence in favor of the nonmovant and evidence favoring the movant that is uncontradicted and unimpeachable. the jury may return the “right” verdict. Can be a mere “hunch” . should consider all the evidence in the record when deciding JMOL. Ct. Alabama ex rel. had originally granted the JMOL and ruled in favor of the movant and it is appealed and reversed. − − C.B.e. you don’t have to have a retrial. see it the way the judge sees it. “proportionality (2) other party would have to make a neutral explanation. BUT must (1) draw all reasonable inferences in favor of the nonmovant. divided on whether Edmonson rule should extend to religion. Cts.e. i. takes away evidentiary finding from the jury 1. fired for improper timesheets. v. The latter doesn’t have to be logical or substantive. FRCP 50 provides that if a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue. and (ii) grant a motion for JMOL Motion must be made b/f case is submitted to jury or can’t be renewed after verdict 2. 30 | P a g e . submitted as evidence that (1) he kept proper timesheets and (2) D. the court may: (i) resolve the issue against the party. i.’s comments on his age (via coworker’s statement). SCOTUS held that Ct. D. (c) Reeves v. P. Also.E. but AFTER goes to jury (iv)Rule 50(a) is a prerequisite. – Age discrimination case. must have moved for a JMOL under Rule 50(a) at the proper time during trial − − Rationale is that if the Ct.e. Can’t be a “cover-up” or be “pre-textual” Edmonson rule extended by SCOTUS to gender in J. (i. Judgment as a Matter of Law (JMOL) • Ct. (2) may not make credibility determinations or weigh evidenct. Religion can sustain more of an argument for bias because religious beliefs are more of a clear-cut bias because it is a belief system. Race or Gender are not associated with such a belief system. Sanderson Plumbing Co.

IX. including. App. Kurn – As in prior case. Purpose is to correct possible miscarriage of justice. that is evidence that is not available or could not have been made available by the use of reasonable diligence at the first trial − There’s a narrow exception to this rule that applies when the new evidence is “practically conclusive” and not allowing a new trial would result in a grave miscarriage of justice (ii) To prevail on a motion for a new trial based on newly discovered evidence. had abused discretion in granting a new trial b/c D. D. Something happened at trial that makes the judge want to start over (e. jury instructions. must ignore errors that don’t impact the parties. but not limited to: (a) Harmless error – Rule 61 (i) Unless justice provides otherwise. etc. Post-Trial Motions A.) 2. P.(d) Lavender v. called a different “surprise” witness in 2nd trial. Ct. b/c seized by Sandinistas and NOT recognized Nicaraguan 31 | P a g e . contended that P. JMOL – See above Rule 50(b) B. contended that P. Trial 1 – judgment for D. P. had introduced a surprise expert witness in second trial and introduced new theory. It is not the judge’s job to make this determination. objected. must draw all reasonable inferences in favor of the movant. must show: − − − − Evidence discovered since trial Reasonable diligence Evidence is not merely impeaching or cumulative Evidence will probably produce a different result at trial EX: Ope Shipping. veered in its lane. V. held that they did not abuse discretion and granted a new trial on grounds that the surprise testimony actually prejudiced P’s case. Ltd. Ct. (b) Trial or pretrial error (i) Conway v. Ct. granted continuing objection to all the witness’ testimony. New Trial – Rule 59(a) 1. Only not fair b/c changes the outcome of the case. Cts. Many grounds. Ship is insured by Lloyds for loss during war. veered into its lane. − Note: have to make objection to preserve for appeal (c) Newly discovered evidence (i) A new trial may be warranted based on newly discovered evidence.g. D. Issue was whether ship had been commandeered by the government (an exception under the policy) or an opposing government. Issue was whether the Dist. Underwriters at Lloyds – Dispute over insurance policy for ship owned the Nicaraguan government. Dispute over who is negligent and question of facts. Chemical Leaman Tank Lines – Car accident case. misconduct. Both parties had reasonable inferences.

Ct. Ct. grants JMOL (D. D moves JMOL and new trial →D. Issue is that P. not persuaded by Pfizer’s argument. reverses JMOL. had verdict. but was never given an opportunity for a new trial. Trial judge granted new trial on the basis that the great weight of evidence was contrary to the jury verdict. Cir. denies both motions.e. stating that the D. erred in denying the motion. the prevailing party may assert grounds to entitle it to a new trial should the appellate Ct. App.) P. reverses the JMOL (i. So it could reverse the granting of a new trial on if find “absolute absence” of evidence contrary to the jury verdict. v. (Needly) sues Martin for negligence. D. D. appeals and is denied on both motions.) and remands cases. – Ct. If JMOL upheld then original judgment will stand (Rule 50 (c)).” A trial court has discretion as to whether he believes the verdict is contract to the weight of evidence. Ct. An Article of Drug – Jury trial found for D. Ct. verdict loser. D. reverses on new evidence showing it was in fact the Nicaraguan government. The App. it may order a new 32 | P a g e . that the drug was “generally recognized” as safe and effective. Pfizer appeals. ordering judgment for the D. App. Interplay between Motion for JMOL and Motion for new trial (Rule 50 (c) – (e)) (a) Sets forth the procedure for considering both a motion for JMOL and new trial (b) Policy consideration underlying the procedure: (i) Any party aggrieved by the outcome of the trial should have the opportunity to make a motion for a JMOL and a motion for new trial (ii) There should only be one appeal from both motions. Ct. is now judgment winner) Trial judge has to rule conditionally on the new trial. does not grant new trial. Ct. If the App. P. Both summary judgment and grant of new trial affirmed. appeals. (Rule 50(e)) (i) Rule 50(e) – “If Ct. (e) Jury verdict is against “great weight” of the evidence (i) United States v. App. it will then look at D. Issue was the jury used a “quotient verdict” average of what each jury believed where the proper damages. (d) Misconduct of jurors (i) Multiflex. D. reverses the judgment. Samuel Moore & Co. should not be allowed to grant summary judgment because is brought SOME evidence that would support the jury verdict. Martin – P. (c) Hypo 1 – D. conclude that the trial ct. P. level. Ct. Ct. denies a JMOL. (Why? So that if the JMOL is reversed on appeal. SCOTUS grants cert.government. ruling on new trial. However. denies both motions. takes the verdict away from P. will appeal JMOL. Ct. If new trial upheld. Ct. (d) Hypo 2 – D. moves for JMOL and new trial. App. → D. Trial Ct. verdict winner. moves for JMOL and new trial → trial ct. granted summary judgment finding that Pfizer’s studies were inadequate as a matter of law. Ct. verdict loser. may intervene ONLY when the court abused its description or failed to exercise it. needed to move for a new trial at the Ct. (e) Neely v. Holds that once the JMOL was reversed. then remanded back to D. then you know whether or not to stick w/ the original trial verdict or if there should be a new trial. Inc. stating that it “miscomprehends the standard of review for granting a new trial. 3.

Res Judicata. class members) B. there must be (a) Final valid judgment (b) Judgment must be on the merits (i) Applies when full opportunity to litigate (e. Precludes re-litigation of an issue settled in a prior suit. Precludes re-litigation when a subsequent suit is brought on the same claim 2. even if on a different claim (a) Ask yourself whether or not a different outcome in the previous case would affect the outcome in your case (b) If the issue was decided in the first case. (c) Applies to issues of fact and law that were (i) Actually litigated (ii) Determined by a valid and final judgment (iii)Where the determination was an essential to the judgment − 33 | P a g e E.e. or direct the entry of judgment. dismissal for lack of jurisdiction. summary judgment exercises. then it reduces the scope of the second case. direct the trail ct. to determine whether a new trial should be granted. failure to join party) (c) Claim (or cause of action) must be the same as in the first suit (i) Narrow Approach (i. improper venue. default judgment) (ii) Does not include where not on the merits (e. Kirkpatrick) − − − − Preclude only claims that are identical or very similar to the original claim “individualized” or “same evidence” approach Precludes claims that were brought or claims that could have been brought in the first suit Transactional analysis.g. and Related Preclusion Doctrines (common law) A.g. For claim preclusion to apply in the second lawsuit. Full trial followed by a verdict and judgment. Smith v. Beacon Theatre Case .g.” X. Res Judicata/Claim Preclusion 1. must assert all claims that arise out of the same transaction or reoccurrence (ii) Broader/Transactional Approach (federal approach) (d) Parties must be the same (or sufficiently closely related) (i) Sometimes non-parties will be subject to preclusive effect based on their relationship with those who were parties to the first suit − − Non-parties who controls or effectively controls the litigation for the party Non-party “represented” by a party (e.trial.g. Collateral Estoppel. Collateral Estoppel/Issue Preclusion 1. trust beneficiaries estate beneficiaries.

left the question of guilt or unanswered). had an incentive to defend itself vigorously in suit 1 (ii) if there are any inconsistent judgments w/ the one the plaintiff is relying on (iii)if there are any procedural opportunities in suit 2 there were not available in suit 1 (d) Parklane Hosiery Co. Second lawsuit. allow IF party was given a full and fair chance to litigate in case 1. malicious prosecution. (a) P (or claimant) in case 2 (b) under traditional rules. can’t use. Defendant asserts res judicata against all the Plaintiff’s claims. etc. (3) Suit against the NY telephone for false arrest. e. Blonder-Tongue sues a different defendant. Case important b/c it set out the 34 | P a g e . Shore – First lawsuit. Ct. To apply. the party against whom the preclusion doctrine is asserted must have had a full and fair opportunity to litigate the issue 5. not worth pursuing. SEC against Parklane. More likely to join all of the defendants. the finding of theft by administrative proceeding was the essential predicate to the determination 2. Offensive non-mutual Collateral Estoppel – Shore is attempting to assert offensive. slander and wrongful discharge. you don’t have to have all of them.g. (a) use of estoppel by defendant in case 2 (b) EX: A sues B…A loses. as an offensive tool). (2) may be unfair to a defendant if liable for only a small number of damages and didn’t put forth a avid claim. (c) Unfair determined by whether (i) D. Shore bringing stockholder derivative suit against Parklane. Defensive non-mutual Collateral Estoppel – Example used by SCOTUS is a patent holder alleging infringement. But today can use if it is FAIR. (c) Most Cts. A sues C. nonmutual collateral estoppel. – Three lawsuits (1) administrative proceeding that found that Ryan stole. (d) policy rationale is that it encourages plaintiffs to join defendants in one suit 6. and (3) procedural advantages. New York Telephone Co. grants defendant’s motion b/c Ryan had a “full and fair opportunity” to litigate the issue in the prior proceeding. Prevents a plaintiff from intentionally choosing piecemeal litigation until they get the desired result. Further. Thus. (2) criminal proceeding where charges were dismissed “in the interest of justice”. promotes efficiency. v. Shore moves for summary judgment based on issue preclusion (from first lawsuit). Not balancing test. Prior decision maker must be operating in a judicial capacity (a) Administrative agencies 4. can used judgment from case 1 to preclude defense in case 2.e. C. judgment for SEC proxy statement materially false/misleading. Only the estopped party must be bound by the prior determination (modern view) (a) Mutuality (different parties) is not required 3. (i. SCOTUS states that it can be used on a case by case basis b/c (1) doesn’t promote judicial economy b/c plaintiff does not have an incentive to join parties…wait and see.(iv)only used against someone who was a party to the first case − Ryan v.e. Using it to get a decision in his favor (i.

(i) D. had a full and fair chance to litigate in case 1 (ii) D. could have foreseen multiple suits (iii)P.“offensive” framework and ultimately decides that preclusion would be appropriate here. could not have joined easily in case 1 (via intervention) (iv)No inconsistent judgment 35 | P a g e .

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