I. Values of Civil Procedure a. Effieciency b. accuracy c. Rational- Non-arbitrary d. Dignity- Dont humiliate, chance to participate e.

Equality- Similar cases treated the same General run through 1. Subject matter jurisdiction 2. Personal jurisdiction 3. Notice of opposition to be heard 4. Proper service 5. Venue 6. If in state court, can it be moved to federal? Diversity and over 75,000. Or Fed Q.Part of well pleaded complaint. 7. Have any of the 1-6 been waived? In Personem Jurisdiction: against a person Person is present in forum Person has implied presence in forum (beginning w. Intl Shoe) Voluntary appearance in forum Consent to be served via agent in forum Domiciliary of forum (domiciliary = fact based analysis) In Rem: against property establishes rights/interests in property only (i.e. condemnation, probate, bankruptcy) No Notice required, since owner is expected to know whats going on property Quasi-in-rem: action against a non-resident who owns land in forum Land must be attached at outset (per Pennoyer) Owner is expected to be aware of all activity on property at all times Types:
1. When seeks to enforce pre-existing interest in property 2. When seeks to enforce non-pre-existing interest in property. i. Property is alter ego of individual outside jurisdiction ii. attachment Jurisdiction

Judgement is limited to value of property

Pennington v. Fourth Natl Bank Rule: Attaching an intangible bank account is sufficient for quasi in rem jdx. Explanation: had a bank account in forum state, which attached at beginning of proceedings. Court held that bank account was enough to exert personal jdx since it was not in conflict with three rules 1. Presence of res in forum; 2. Res must be attached at beginning of proceedings; 3. Owner must be given chance to respond (notice must be given) Shafer v. Heitner Rule: No jdx without minimum contacts. Intangible property might contribute to minimum contacts but is not dispositive i.e. sufficient in and of itself.

Explanation: Case raises more questions than it answers. Quasi in rem with respect to real property seems to still be ok. Non-real property can only be considered as a minimum contact since jurisdiction requires

Pennoyer v. Neff Rule: For quasi-in-rem jdx, land must be attached at the outset of litigation. Application: brought action against and asserted personal jdx by claiming owned land in forum state. However, that land was not attached at outset of litigation, so court found that it did not have personal jdx over . Attachment of land in state personal jurisdiction over non-resident.

CASES FOR PERSONAL

Hess v. Powloski Rule: When an individual enters state, he gives implied consent to abide by and submit to all laws of the state, including consent to be served by state. Explanation: State of Mass. was found to have personal jurisdiction over non-resident motorist who caused accident since he offered implied consent by using Mass. Roads

State long arm statute authorizes or have one of the traditional basesFRCP 4(k). Federal Long Arm Statute. Service of summons establishes PJ over: (1)(A) person subject to PJ of general state court where dist. court sits (1)(B) party joined under Rule 14 or 19, and served within 100 miles (1)(C) when authorized by another federal statute (2) Fallback: claim arises out of federal law, and D not subject to any state cour
Long Arm Jurisdiction Analysis 1. Long Arm Statute (determined by state legislature) a. Enumerated acts: specific requirements for long arm Jurisdiction OR b. Constitutional Maximum: all the powers allowed by the constitution. 2. Due process (constitutional inquiry) (See D) a. Minimum Contacts b. Reasonableness Three interests in Long Arm Statutes State has an interest in providing convenient forum for redress Unfair to allow wrongdoers to escape from wrongful acts outside of state Modern Transportation eliminates the convenience issue.

Do you have One of traditional bases? 1. Consent a. Actualb. Constructive- Driving a car(serving the attorney general of that state) 2. Presence- Domicile or being served instate 3. Property

For Corporations look at incorportation and primary place of business (nerve center), not where factories.

- Burnam- Lawsuit does not relate to California. So they need general jurisdiction. He was served in California. Do the traditional basis sever international shoe? Scallia-4- Presence when you served, is okay by itself. Dont need to go through international shoe. Talked about historical pedigree. brennan- Always apply int. shoe. There are no traditional basis. You have to go through the analysis. No law so have to argue both. Due process (More of a standard, not strict test) Minimum contacts consistent with fair play and substantial justice. International shoe Are they going for specific (COA arose out of event in jurisdiction where you bring claim) or general jurisdiction(enough contacts to give them Jurisdiction even if COA unrelated to activity in the forum) FOR BOTH- Minimum contacts Specific Purposeful availment of benefits of the forum? (Intl Shoe)

Defendant or employee entered state conducted activity there (see Intl Shoe); entered into a contract with forum residents Hanson v. Denckla Rule: a state may assert personal jurisdiction iff. the purposely avails himself of the laws of the state and presence in the state would not cause undue hardship. Explanation: Since s contacts in Florida were inadvertent and made no efforts seek protection or privileges conferred by laws of state, state did not have personal jurisdiction over (Bank responsible for trust in Delaware). Kulko v. Superior Court Rule: Purposeful Act in forum implies availment of the laws of forum. Explanation: Purposeful acts are generally limited to wrongful acts and commercial acts. Buying plane tickets to send children to their mother in another state for the sake of family harmony is not a purposeful act with respect to jdx.

Privileges and benefits of the laws? (WWVW) Foreseeable that they will be hailed into court based on those contacts? Substantial connection (Burger King)- Contract, business Purposeful direction towards forum? (Asahi) - Brennan-Purposeful availment-Placement It is a contact if product is put into the stream and Awareness can reasonably anticipate that it will get to state C,D,E. Makes some kind of sense, making money Oconnor-Purposeful direction- Need more that that. Need what brennan: Placement, Awareness plus some intent to serve state Other forum related activities Need to prove that, I somehow targeted C,D,E. Advertising, customer service etc.

General-Continuous and systematic contact and substantial- Perkins says three ways: corporations chartered in the state, corporations with offices in the state, people/corporations domiciled in the state Perkins v. Benguet Rule: If a corporations relations with a forum are systematic, continuous, and substantial, forum can hear claims where cause of action did not arise from contacts with forum. Explanation: corporation was sued in Ohio for events that arose out of a foreign forum. s primary business location was abroad, but CEO lived and conducted business in Ohio (had employees, office files, correspondence, banking, offices). Court held that s contacts with Ohio were substantial and therefore Ohio had personal jurisdiction over . Helicopteros Nacionales de Colombia v. Hall Rule: Mere purchases, third party training, and contract negotiations do not satisfy substantiality requirements. Explanation: Cause of action arose in Columbia, where an American citizen was killed in a helicopter crash. Family of victim brought action against the helicopter transportation company (Helico.) in Texas. Court held that the purchase of Helicopters and the brief training of its pilots in Texas were not substantial contacts. After Looking at Either specifc or General Reasonablness for both. If did not pass minimum contacts then dont look at reasonableness (world wide V) Reasonableness (Do for both) -Def. has burden of presenting a compelling case that jx is unreasonable. Asahi, BK, Volkswagen factors to consider: 1. Burden on defendant of litigating in forum. (Asahi, traveling from Japan) 2. Plaintiffs interest (are they hurt, travelling difficult?) 3. Interest of the forum state, e.g. California has a manifest interest in providing redress for its citizens (McGee, Insurance policy case. Yet California court has little interest in Asahi case none of the litigants from Calif. because indemnification suit is all thats left between Taiwan co. and Japanese company.) 4. Interstate judicial systems interest in efficiency.(tough policy questions) 5. Shared interest of the several states in furthering fundamental substantive policies(forum shopping) McGee v. International Life Insurance Co.

Rule: A state may assert personal jurisdiction when it has a regulatory interest in issue and presence in state would not cause defendant undue hardship. Application: refused to pay insurance that alleged owed. Court held that state had a regulatory interest in making sure insurance companies paid out and despite the Challenging PJDirect attackState: special appearance (im here to say im not here) Federal: bring up in first pleading- otherwise failed -If argue on merits of the case then they have you. CollateralObject after default judgment when they try to enforce in your state Subject Matter jurisdiction a. Two kinds of cases can go before federal court: diversity and federal question. b. Every state has two courts: State and Federal i. State courts can hear almost any claim. Exceptions: admiralty, antitrust, maritime, bankruptcy law and patent law. ii. Federal courts can only hear subjects that congress approves 1. Article III 2 give outer limit to federal courts subject matter jurisdiction. 2. Because federal govt. is ceded power, the people gave fed. gov. power. Also need a federal statute to hear a case. c. Often overlapping jurisdiction: most any claim that can be filed in fed. court can be filed in state court. Opportunity to forum shop. d. Parties CANNOT CONSENT to subject matter jurisdiction e. Subject matter Jdx is NEVER WAIVED Diversity jurisdiction a. 1332 a (1) 1. Must be between citizens of different states and 2. Amount in controversy more than $75,000. ii. Citizens of different states 1. Strawbridge v. Curtiss: All s must be of different state than all s. 2. Citizens on the same side of v. can be from same state. 3. Goes to citizenship at time ACTION IS COMMENCED, not when incident occurs. iii. What is citizenship? 1. Citizenship: state of domicile (not residence) for human beings, natural persons. a. Domicile: theplace of his true, fixed and permanent home and principal establishment, place where he plans to return. (Mas v. Perry). Person has only one state of domiciliary.

b. Changing domiciliary requires taking up residence with the intent to stay there. c. Intent can be determined by examining voter registration, purchase of a home and payment of taxes, in-state tuition. iv. Corporations? 1. 1332 (c)(1): Where business is incorporated (all states) and where principal place of business (can be only one state). Corporation is easy test. 2. Principal place of business test (PPB): Fact-intensive. a. Nerve-center test: Where shots are called. b. Muscle center test: Place of activity, factories, warehouses, etc. (J.A. Olson Co. v. City of Winona) c. Questions for PPB test i. Where are board meetings? ii. Where is management? iii. Where is the president? iv. Where do they pay taxes? v. Where is accounts receivable? vi. Where are their offices? How many? vii. Are they a subsidiary? (ESPN, CNN/SI) d. For unincorporated businesses and partnership we look at citizenship of all the members. In limited Partnership look at everyones citizenship. Amount in Controversy Requirement- 1332(a) 1. Requires a good faith allegation that exceeds $75,000 exclusive of interests and costs. Amount awarded is irrelevant. 2. Punitive damages in K case wont get you there -Calculated at time of complaint i. St. Paul Mercury test- Amount in controversy as pled in good faith can only be assailed if clear to a legal certainty that amount cannot be awarded. Matter of law (statutory caps) No reasonable jury (ex. Pleading 1M for a broken finger) ii. Aggregation Rules where must add together two or more claims to meet the requirement.
1. 2. 3. Two different plaintiffs cannot aggregate claims against same defendant unless those claims are invisablen( flow from the same indivisable harm) Claims against two separate defendant cannot be aggregated unless unclear which defendant is at fault AS long as one claim meets required amount, all related claims can be brought even if others do not meet minimum amount in controversy.

Reasons for Expansive Fed diversity1. Helps deal with certain types of tort law, national issues (consumer protection, corporate accountability) 2. Stop prejudice against non-citizens 3. Protects defendant by assuring constitutional rights 4. Eases congestion in state courts 5. Fed court higher quality, more impartial

6. Competition allows for better laws Reasons to limit federal diversity 1. Without limitations, federal court become too congested 2. Use of state law by fed court is wasteful, unnecessary 3. Fed court interfere with state autonomy 4. Use of law in fed court delays formation of common law doctrines 5. Limit forum shopping Arising under Federal jurisdiction- 1331 1. Two part test
i. Placement- Well pleaded a. Well-pleaded complaint- Plaintiff complaint identify federal question. Not anticipated defense (Motley) b. If challenged, burden on Plaintiff to show federal question. Substantiality- Centrality of federal question a. Cause of action arises out of federal statute i. Express- Congress expressly confers right to COA in statute ii. Implied1. Is there legislative intent? a. Consistent with legislative scheme 2. Is the COA action important to state law so that inappropriate for state law to be applied? State courts use this to develop common law? b. Embedded federal issue- COA is state law claim, but turns on federal law i. Raises a federal issue ii. Which is disputed iii. Substantial to claim iv. Could be heard in federal court w/o disrupting balance between state and federal ct. (Grabble- Would it cause lots of cases to switch to federal court?)

ii.

United Mine Workers of America v. Gibbs (Supplemental: common nucleus of operative fact) Rule: If there is a substantial federal issue that arises out of the same cause of action as a state issue, i.e. a common nucleus of operative fact the federal court can hear both federal and state claims. This power, however, is discretionary Explanation: Gibbs made a contract with UMW, which was subsequently breached when union members prevented him from carrying out his portion of the agreement. Gibbs lost his job as a result and brought actions arising out of 303 of the Labor Management Relations Act (Fed Statute) and tortuous interference (State issue). Court held that since both the issue arose out of a Federal Statute and a Tort claim, federal courts had jdx over the state claim. The court argued that because cause of action for the state claim was indivisible from the Fed claim, the Fed courts had discretion as to whether to take the claim; that is, while the Fed court had jdx, they could decide whether the Federal issue was sufficiently substantial to be tried in Fed court instead of State court.

Supplemental/ancillary jurisdiction- 1367 (Dont forget C, that gives exceptions)

1. 2. 3. Pendant Jur What plaintiff can do to add a claim or part Ancillary Jur What every one else can do (counter claims, impleader) Is the claim already jurisdictionally sufficient? a. Meets requirements of 1331 or 1332 no need for supplemental b. United mine workers v. Gibbs- ruled court can hear state law claim supplemental to diversity case if it includes a common nucleus of operative fact. In other words, transaction or occurrence. Purely discretionary

c. Fed courts may refrain when 1. State issues particularly important 2. Fed issues dismissed before trial, state claims should be heard by the state court D. Differences between arising under and Diversity i. Arising under- (a) applies, exceptions in (b) do not apply. As long as common nucleus of operative fact, most joinder is allowed. ii. Diversity- No supplemental jurisdiction over: 3rd party claims, Joinder under several rules (look at the statute), Interventions The trio 1. Aldinger (no diversity, no supplemental jdx) a. Aldinger v. Howard (1976)- Court held that federal court lacked jurisdiction over a state law claim against a county, even if that claim was alleged to be pendent to one against county officials under 42 U.S.C. 1983. 2. Owen v Kroger (No complete diversity, no supplemental jdx) a. Complete diversity is necessary for federal subject matter jdx. Even if action was brought with complete diversity, if (1) an additional is joined and (2) destroys complete diversity, then federal court loses subject mater jdx. 3. Finley- In federal question jdx cases, can add state-claims, but not state claims against parties for which there is not also a federal claim. b. Parties that otherwise could not be sued in federal courts can not be brought into federal court solely on the basis of having their claims share the same facts as the claim mandated to the federal courts. Overturned by 1367 . Here the court called into question the entire concept of pendant party and claim jurisdiction.

Notice
Actual notice- Defendant is actually and personally served Constructive notice- Notice under law, but not personal service

a. Notice Rule 4
i. Form of notice that is reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections. Mullane v. Central Hanover Bank Rule: Notice must be reasonably calculated to actually reach s
Explanation: Bank needed to notify shareholders of a lawsuit brought on their behalf. Notice was printed in small type on the back page of a local newspaper. The court held that since there was a small chance shareholders would have seen notice and that since the paper was not circulated to areas where shareholders were present, the notice was not reasonably calculated to reach intended parties.

ii. Where s name and address are known, publication is not sufficient.(Mullane) iii. If names, addresses are not known, publication is sufficient. (Mullane) iv. Notice by publication is RARELY reasonably calculated under the circumstances unless is avoiding services -Actual notice not required, only best possible b. Rule 4 Statutory Requirements i. State rule should be consulted ii. Two parts summons and complaint 1. Summons: Formal court document gives notice to the , gives 20 days in which to respond. Comes from the court symbol of court reaching out. 2. Copy of Complaint: Informs the defendant of the charges Who can serve?- Rule 4c2: Process can be served by any person who is not a party and who is at least 18 When served?- Rule 4m: has 120 days after filing complaint to serve process.

How served?- Rule 4e1: Methods allowed by state court where fed court sits, OR where resides. a. Rule 4e2: Hand service b. Usual place of abode c. With some person of suitable age and discretion RESIDING THEREIN. (National Devo Co. v. Triad Holding.) d. Agent process: Delivering to an agent authorized. Serving corporations- Rule 4h: can serve agent of corp. a. One appointed by corp. b. Any officer c. Any managing or general agent capacity

Right to be Heard i. Due process clauses of the 5th and 14th Amendments require an opportunity to be heard ii.
before property can be taken, unless a proper inquiry was made. Connecticut v. Doehr- Three fold test a. Private interest of defendant b. Risk of erroneous deprivation c. Government interest
Explanation: In Doehr, a piece of real property was attached in a suit without providing the with notice or an opportunity to be heard. argued that this was in conflict with due process. The court applied 3 fold test: 1. Temporary or partial deprivation of s property still deserves due process protection. 2. Risk of erroneous deprivation great since probable cause not stated, only s good faith belief i.e. conclusory and not factual. Probable cause requires facts. 3. Only reason for to attach property was to satisfy judgment if he prevailed. But no actual risk that would transfer property before hearing.

iii.

iii. Relevant Considerations (from the cases) Underlying dispute -Actually related to the property? -Matter lends itself documentary proof? What is the remedy? Judge issues writ, or just a clerk? Allegations must be verified? Creditor req. to post bond? Creditor has pre-existing interest in the property. Debtor can put up bond instead of property? Pre-attachment hearing? Extraordinary circumstances? Post service hearing?

Removal
1. 2. 3. 4. Is the party moving for Removal the defendant? It must be. All must agree to remove. (Exception is 1441c) Could the court been removed to have had original jurisdiction over the claim Is the case a diversity case? a. If so, only removable if none of the defendants is a citizen of the state the action is pending in 28 USC 1441 Are there state claims that are a part of the case? a. may include state claims pursuant to 1367 b. Federal court can keep a whole case, or remand certain issue to state (this prevents s from introducing state claims or s to defeat removal.)

Procedure for removal

a. b. c. Submit notice of removal per FRCP 11 Submitted by within 30 days of receiving initial complaint Promptly after submission of notice, must give written notice to all parties.

Venue 1391
Diversity of Citizenship? (a) applies (1) a judicial district where any resides, IF all s live in the same state. (2) judicial district in which a substantial part of the events or omissions giving rise to the claim occurred OR a substantial part of the property that is the subject of the action is situated (Bates v. C&S Adjusters: forwarded mail case.) (3) IF NO DISTRICT AVAILABLE FR. (1)/(2) A judicial district in which any is subject to PJ Arising Under? (b) applies (1) A judicial district where any resides, if all s reside in the same state. (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, OR a substantial part of property that is the subject of the action is situated. (Bates v. C&S) (3) IF NO OTHER DISTRICT A judicial district where any may be found.

I. Proper Venue i. 1391a for diversity -- 1391b for fed Q. rules. 1. Can lay venue in any district where all defendants reside 2. If all reside in different districts of same state, then state can lay venue in any district where on resides. 3. Can lay venue in any district where substantial part of claim arose. ii. If you meet neither (RARE) 1391 b3, a3 1. In diversity (a) can lay venue in any district where all are subject to personal jurisdiction when case is FILED. 2. In fed Q (b) can lay venue in any district where is found Reasor Hill v. Harrison (Venue in State Courts) Rule: can bring suit over damage to land in another state, as long as court has personal jdx over . Explanation: used plane to spread fertilizer on s land. was based in Arkansas and and his land is in Missouri. brought action for collection of services. counter-claimed with allegation of negligence for destruction of crops. The issue was whether court could hear counter-claim, which dealt with land in another state. Court held that as long as state has personal jdx over , it can hear land in other state. Dont want to create havens or procedural protection for wrongdoers. Dissent: Since land issues are primarily dealt with in lower courts, other states dont have much to go off of when deciding fate of land in other states.

Bates v. C&S Adjusters (venue in Fed. Courts) Rule: Under 1391(b)(2) The appropriate venue is where the primary event took place. Explanation: incurred debt in Pa. subsequently moved to Ny. sent letter for collection to address in Pa. and it was forwarded to Ny. brought suit in Ny. under Fair Debt Practices Act. argued venue was not proper since it did not have business practices in Ny. Court held that the primary event in question was not the sending of the letter, but the reading of the letter, which happened in Ny. Therefore, venue in Ny. was proper. II. Transfer of venue 1404, 1406 ii. Can only transfer to fed. dist. court that has per. Jur. And has proper venue. Must be true independent of Wiaver.7 iii. Two transfer statutes which apply at different times 1. 1404a only available if original court, one transferring from was proper venue. Can transfer for three reasons a. Convenience of parties b. Interest of justice. c. Where might have been brought. 2. 1406 a applies when original court was improper venue. iv. Goldlawr transfers court concluded that transfer of case where no pers. Jx. v. Forum selection clause not dispositive Hoffman v. Blaski Rule: Action can only be transferred to venue where had a right to bring action in the first place. Explanation: brought action Tx. (home state of ). transferred to Ill. (home state of ). Court held that transfer was improper since cause of action could not have been brought originally in Ill. had no contacts in Ill. Court reasoned that could not assume that would waive venue and Personal Jdx. and could not have brought action in Ill. III. Forum Non Conviens (Fed. Common Law) Discretionary doctrine: even though you can doesnt mean you should. If the court concludes that the action could be more appropriately tried in some other jurisdiction, then it can choose to deny jdx over a case it might otherwise have jdx over. Forum non conviens is not a transfer, but a dismissal which allows to bring action in appropriate venue. i. Doctrine by which a court dismisses a case because more convenient forum in another court. ii. Used when court cannot transfer better court is in another system.

iii. Convenience of all parties. iv. More likely when foreign plaintiff. (Piper Aircraft v. Reyno v. Private interests 1. Access to evidence 2. Witnesses 3. Cost of obtaining willing witnesses 4. Viewing the premises vi. Public interests 1. Court congestion in U.S. 2. Interest in home country (district) seeing case tried 3. Burden on juries Piper Air Craft v. Reyno Rule: When considering dismissal predicated on forum non conveniens, unfavorable change in laws need not be weighed heavily. Explanation: s died in plane crash in Scotland. Executor of collective estates brought action against plane manufacturer, who impleaded propeller manufacturer. Court held that U.S. should not be a magnet for foreign s to come bring cases against domestic s. Case dismissed; court concluded convenient venue was Scottland. IV. Erie Doctrine When litigation touches between two or more states, one is likely to be confronted with the question of choosing between two or more sources of law. Erie Approach
1. 2. Is it a diversity case? Is the law in controversy substantive or procedural? a. Substantive affects the rights and obligations of a person b. Procedural affects the rights of people when they become litigants c. Some laws are a mix (licensing statutes, Statute of limitations? If Procedural a. Where does the conflict between the laws come from? i. IF there is a FRCP on point, then generally use that law 1. However, the court may construe the FRCP narrowly so there is no conflict (Then go on to step 4) 2. Apply the state law if it can be applied in accordance is the RDA ii. Are we sure that the rule is really regulating procedure? 1. Yes then use the FRCP law 2. No, then go to step 4 b. Twin Aims of Erie i. Are the twin aims frustrated? 1. Forum Shopping increased? 2. In equitable administration of law? ii. If Yes use Federal Law c. Countervailing considerations i. Are there reasons for the federal procedural rules to apply? 1. Yes , then Federal Law 2. No , then state law

3.

Swift v. Tyson Rule: In federal court, where there is a specific statute, the statute must be followed. However, if there is no statute on point, federal courts can look to federal common law instead of looking to the common law of the state. Erie v. Tompkins (Beginning of Erie Doctrine) Rule: Where a federal court is hearing a state issue sitting in diversity, the court must use Federal Procedure but State Substantive law. Explanation: was struck by a train in Pa. was incorporated in Ny. Pa. State law dramatically favored . Under Swift, could forum shop to find the most favorable law. Court overturned Swift, arguing that it was unconstitutional (power to create common law outside of certain areas is not conferred by constitution). A predictable choice-of-law doctrine is necessary, therefore court concluded that state law is to be used on substantive issues, and federal rules on procedural issues. Guaranty Trust v. York (Outcome determinative test) Rule: Where the Federal law and State law would produce the same outcome, Fed. Courts can use Fed. laws. If the outcomes would be different, Fed. Courts must use State law. Explanation: Issue of whether Statute of Limitations is procedural or substantive. Court held that the substantive/procedural distinction isnt all that important; as long as the Fed. and State laws would produce the same outcome, Fed. law can be used. Byrd v. Blue Ridge (Countervailing Considerations) Rule: Unless there are countervailing considerations in favor of using Fed. law, Fed. courts must use State law: weigh Fed. and State interests. Explanation: brought negligence claim against contracted employer-. was a resident of NC and was a resident of SC. argued that was doing same kind of work as employees of and was a statutory employee of and only entitled to Workers Comp. SC Workers Comp. statute did not confer right to a jury trial, which could be outcome determinative. However, if Fed. Court were to use State law, this law would disrupt federal procedure (i.e. when an action can be heard by a jury). Therefore, even though the law in question could be outcome determinative, the countervailing considerations in favor of Fed. law are sufficient to require Fed. court to use Fed. law. Hanna v. Plumer Rule: Fed. Courts must use Fed. Rules if rule really regulates procedure. Explanation: brought action in Mass., in Fed. Court and served per FRCP 4(e)(2). Mass. RCP reqd actual notice, and moved to dismiss. Courts decision turned on interpretation of the Rules Enabling Act (act which gave Congress

power to make FRCP). Court held that coutcome determinative test should be used so as to promote the twin aims of Erie: discourage forum shopping and avoid in equitable administration of justice. If Fed. rule in question directly conflicts with state rule, but really regulates procedure Fed. Courts should use Fed. Rule. Gasperini v. Center for Humanities Rule: Where it is possible, courts should find an accommodation that satisfies both Fed. and State rules. Explanation: brought action again and received a large award. motioned for a new trial, claiming award was excessive. District court dismissed motion; applied Federal standard of shocked the conscience of the court. Circuit court applied state standard, which was deviate materially from what would be reasonable compensation, and offered remittitur for a quarter of the original award. appealed and was granted cert. Supreme Court held that district courts should use state law when reviewing jury awards, but such that it is consistent with the 7th amendment: trial judge reviews awards; appellate court uses federal standard.

Erie Flow Chart REA Is the rule substantive? fopprprprklsd Yes NO FRCP on point? NO Twin Aims of Erie frustrated by Federal? Yes RDA NO

Federal Law

State Law

NO

Direct collision with State Law? NO

Yes

Countervailing Considerations Yes NO

Yes Federal Law

State Law

Really Regulate Procedure? Sibbach test

* Try to find an accommodation per Gasperini Yes + Weigh federal interests vs. state interests.

Federal Law

V. Determining which State Law Applies Klaxon Co. v. Stentor Electric Mfg. Co. Rule: Fed. Court should apply conflict of laws rules of the State in which it sits. Rules of Preclusion Rule
Semteck v. Lockheed Plaintiff filed suit in California state court against Defendant torts. Defendant moved the case to Federal District Court in California via diversity jurisdiction and successfully moved to dismiss Plaintiffs claim as barred by Californias 2-year statute of limitations. The District Court dismissed the suit on the merits and with prejudice. Plaintiff then re-filed suit against Defendant, this time in Maryland state court. Lockheed again had the case removed to Federal district court, this time in Maryland, and ask the court to apply claim-preclusive effect to the California Federal District Courts adjudication on the merits, and dismiss the suit.

Holding: Federal common law governs the claim-preclusive effect of a dismissal by a Federal court sitting in diversity, which in turn will apply the claimpreclusion laws of the state in which the Federal court is located VI. Ascertaining the State Law Generally:
If there is case history on point, use rules from those cases If no case on point, use dicta and make best inferences possible. Send to State court for certification.

Mason v. American Emery Rule: When a Federal Court uses State law, it should make an inference on what State would do. Explanation: (Miss. Citizen) brought action against (RI citizen) in Fed. Court. Cause of action arose in Miss. Miss. Courts had not dealt with issue in decades, and the historic common law was counter to what was currently the trend. Fed. court inferred, based on dicta that State would, if given the opportunity, adopt the modern trend. Rule 2 Merging of courts of equity and law
1. Things taken from equity courts a. Ease of Pleading b. Broad joined c. Expansive discovery d. Large amount of judicial power/ discretion e. Latitude for lawyers f. Flexible remidies g. Reliance on experts

Pleadings Rule 8 I. Pleadings

For Strict pleading: 1. Judicial Economy 2. Encourage People to think through the case 3. Promote Settling Against Strict: 1. Favors repeat players 2. May keep out meritorious claims 3. Disfavors poor people Issues with Law/Writ system 1. Caused legal fictions to arise a. Title claim fiction through using ejection from land writ 2. Lead to creation of courts of Equity a. They had relaxed technical standards b. They had jury, witnesses, discovery Code Pleading Oregon is a code pleading state Just state facts, judge decides what claim is useful

Pleading Requirements: Rule 8 Generally - Short and plain statement that provides enough facts to raise a

reasonable expectation that discovery will reveal evidence of cause of action that is entitled to relief. Specifically

1. Statement of Jurisdiction 2. Statement of Claim 1. This is the meat of the issue for proper pleading 2. Does the complaint plead enough facts to give the defendant notice and prepare a defense? 3. Does the complaint state enough facts for the claim to be plausible a. This is a higher standard that possible 3. Demand for relief sought(if Diversity suit must list more than 75,000)

Formal Sufficiency: Short, but detailed enough so that and everyone else knows what is talking about. Substantive Sufficiency: Enough allegations to sustain a claim and nothing inherent that would disprove the claim. I.e. no set of facts would allow to win.

Rule 8 Notice Pleading: frictionless procedure

Allows access to legal system, even if doesnt have all the evidence up front. Pleading must be specific enough that the court and the know specifically what is talking about. Transubstantive approach

Rule 9(b) Heightened Pleading: Fraud/Mistake cases

Fraud requires additional information since fraud claims are taken so seriously by society; damaging to reputation. Must show mind of : that intended the fraud, which is not materially manifested, like other causes of action.

Dioguardi v. Durning (Liberal reading) Leniency in pleading is ok because other off-ramps during discovery and trial allow for non-meritorious cases to be dismissed. Lets allow to make her case, otherwise system closes out underprivileged s. Conley v. Gibson (Key case) Rule: If s pleading satisfies (1) notice of a cause of action and (2) is sufficient (such that it is not impossible), then the case can move forward. Explanation: Court held that an action should not be dismissed for failure to state a claim unless it appears beyond a doubt that cannot prove facts sufficient for a claim that is entitled to relief. Swierkiewicz v. Sorema Rule: Use Conley Test: no need to show prima facie case (burden of proof required to win case) at the outset. Only enough facts that would be entitled to relief. Explanation: alleged that (employer) violated Title VII (Antidiscrimination in workplace). Court held that that allegation was sufficient, since if he was able to produce evidence of a Title VII violation, he would be entitled to relief. However, evidence of that violation was not necessary at pleading; should be produced at discovery. Bell Atlantic v. Twombly Rule: Federal civil cases require s to include enough facts in pleading to make complaint plausible, not just possible or conceivable. Legal Conclusions will not sustain a complaint. Explanation: brought action against violation of the Sherman Act (telecommunications act). plead that parallel behavior indicated was involved in anti-competitive conspiracy. The court held that this allegation alone was not sufficient, and that only plausible allegations were sufficient to satisfy pleading requirements under FRCP 8(2)(a). Note: Twombly created a stricter pleading standard. no facts would allow to win to "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [cause of action that is entitled to relief.]" Ashcrof v. Iqbal Rule: Twombly standard applies to all civil actions; plausibility will be factspecific. Is this a move back toward code pleading?

Issues Raised: Under Iqbal judicial experience and common sense are used to judge the sufficiency of the pleading. Does this over step the 7th amendment? Responses to a pleading
1. 2. 3. 4. Admit Deny Without information to form a belief General denial a. Disfavored because defendant might be lying and this can piss of the judge who will then take the response as a general admission

II. Defenses and Objections to Pleadings Rule 12 After a has pleaded her complaint, the may motion for dismissal under Rule 12. Rule 12
a. b. A must serve an answer within 21 days of receiving complaint Defenses 1. Lack of Subject Matter Jdx. (Anytime) 2. Lack of Personal Jdx (at outsetwaived upon answer) 3. Improper Venue (see Venue Iwaived upon answer) 4. Insufficient Process (Pursuant to District Rules) 5. Insufficient Service of Process (Pursuant to District Rules) 6. Failure to State a claim upon which relief can be granted (See Twombly; Rule 8) 7. Failure to join a party under Rule 19 Before Discovery, may motion for judgment on pleadings A party may motion for to provide them with a more general Statement

c. d. e.

12(b)(1,6, and 7) motions can be embedded in answer. Rule 12 Takeaways

1. 2. 3. 4. Consolidate motions is possible 12(b)2-6 must be made pre answer 12(b)2-5 waived after answer 12(b)6 may be pre answer, in answer in 12(c) or at trial

III. Amendments to Pleadings, Sanctions, and Case Management Rule 15: Amendments
When and how a party may amend its pleadings Once, within 21 days after serving With opposing partys written consent or courts consent (which should be given freely when justice requires) 15(a)1 amendment as a matter of course 15(a)2 in all other cases other party or judge must give consent/ permision

Beck v. Aquaslide Rule: 15(c) Relation Back amendments are allowed when (1) allowed by State Statute of Limitations and (2) amendment deals with something in original complaint. Explanation: injured on a water slide that was purportedly manufactured by . brought products liability claim. s insurance agents acknowledged that product was manufactured by . After SOL had run, inspected slide and determined it was a fake. sought to amend complaint to include actual manufacturer of the slide. Court held that is was ok to amend pleading to include actual manufacturer of slide. Worthington v. Wilson Rule: 15(c)(ii) amendments are only for when knew identity of but used wrong name; cannot be used to add s after SOL has run. Explanation: filed complaint against city and three unknown named police officer the day before SOL had run. subsequently moved to amend to add names of officers after they had been determined. Court held that mistaken identity had to do with using the wrong names, not failing to know identity. Rule 11: Requires signatures for pleadings, motions, etc.
1. Reqquires that attorneys sign all documents signature certifies that: a. Paper is not for improper use b. Legal contentions warranted by law c. Factual contentions have evidentiary support d. Denial of factual contentions have evidentiary support or likely will have evidentiary support. 2. Remember: a. Continuing certification b. Motions for sanction under Rule 11 served on other party. Other party has 21 day safe harbor to withdraw, if they dont, then go to court. c. Sanctions are discretionary i. Point of sanctions is deterrent, not punishment. ii. Rule says to look at non-monetary sanctions iii. Rule 11 violations may be raised sua sponte iv. Rule 11 doesnt apply to discovery documents. d. Model rules for professional conduct.

Rule 16: Pretrial Conferences, Schedualing, Management

To Facilitate Judicial economy Has been amended to give judges even more power, including additional ability to push for settlement Velez v. Awning i. A partys repeated disregard for court-imposed deadlines will merit an adverse holding, despite the partys eventual filing to oppose the holding.

Discovery

General
1. 2. Informational v. Inquisitional considerations Can inflict sever costs due to inquisitional discovery a. b. c. Required Disclosures: what the parties must present without request Scope of Discovery: parties may request any relevant information that is not privileged. i. can only discover evidence related to claim or defense. ii. Judicial discretion even if related to claim or defense. Parties may move for a protective order so as to prevent annoying, embarrassing, or burdensome disclosure of facts.

Rule 26:

Parties must create a plan for discovery Under 26

1. 2. 1. Used to be: Subject matter relevance Now it is: relevant to claim or defense Boundaries a. Mandatory 26a; Insurance possessed, Info that relates to disputed facts alleged with particularity. b. Discretionary 26b Referee 16, 37 Moves a. Depositions 30 i. Oral Questioning b. Interrogatories 33 i. Written Questioning c. Document Production 34 i. request to produce specific documents and other tangible evidence. d. Physical Mental Examinations 35 i. e. Request for Admission 36 i. formally admit to a certain fact; remove from dispute. f. Sanctions 37 i. If abuse of Discovery occurs, judge may impose sanctions. 1.

2. 3.

Questions for work product a. If yes to below questions the document enjoys protection under 26(b)(3), go on to step b i. Is the material a document or tangible thing? ii. Was it prepared by of for another party? iii. Was it prepared in anticipation of litigation b. If yes go to step c i. Substantial need for the material? ii. Unable to obtain through other means? c. If yes, then the documents are protected i. Would the documents reveal the mental impressions conclusion opinions or legal theories of counsel? 26A Expert disclosures 1. Opinions 2. Data 3. Compensation 4. Credibility iii. Pretrial disclosures 1. Detailed trial evidence other than used for impeachment 2. identity of witnesses

3. designation of witness whose testimony depos will be used 4. Documents intended to be used at trial b. Depositions 1. Can be directed at non-parties as well as parties. Must subpoena nonparties. 2. 30b6 states an organization must specify the appropriate person to be deposed. 3. Presumptive limit of 10 depos, limited to one day of seven hours 4. 31 permits deposition given by court officer. Advantage is attorney doesnt have to attend. Disadvantage is attorney cant ask followups. c. Interrogatories 1. Can only be directed against parties 2. answers typically drafted by partys lawyer. 3. Useful way to get names, dates and lists of of documents 4. presumptive limit of 25 interrogatories. d. Production of documents and things 1. Permits a party to require another party to produce for inspection, copying, or testing all relevant documents or tangible things. 2. Could be used to access property or obtain device central to claim e. Medical examination 1. health, physical or mental condition of a party must be in controversy. 2. Requires a court order 3. Must show good cause and that mental or physical condition in controversy. f. Requests for admission 3612 g. Signing of disclosures, disc. Requests, responses and objections 26g 1. Every disclosure must be signed. 2. Every discovery request must be signed 3. An improper certification may result in payment of expense and attorney fees. h. Scope of the discovery i. Relation to the rules of evidence 1. Rule 26b1 provides that relevant information need not be admissible if the discovery appears reasonable calculated to lead to the discovery of admissible evidence. ii. Privileged material 1. attorney and client 2. doctor and patient 3. priest and parishioner 4. husband and wife 5. Remember only communication protected. 6. For attorney client privilege communication must have been in connection with the rendering of legal services. 7. Rule 26 b 5: requires a party to claim the privilege expressly and to describe the applicability of the privilege. iii. Work product a. Work product is material generated in anticipation (fear) of litigation. Doesnt have to be generated by lawyer. b. 26b3 states to acquire, must show: i. substantial need of the materials in preparation of case. ii. That the party is unable without undue hardship to obtain the substantial equivalent by other means c. The court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning litigation

Attorney Privilege Hickman v. Taylor

Rule: Work product and materials prepared by attorneys with an eye toward litigation are privileged and not available for discovery. Explanation: One party requested Attorney work-product in Discovery. District court required that that work-product be produced. Supreme Court held that Dist. Court erred, and that Attorney work-product is privileged and undiscoverable. However: If there is substantial need and undue hardship in producing the material then it is discoverable. Mental impressions are never discoverable.

Adjudication and Finality I. Summary Judgment Rule 56 (This is essentially a 12(b)6 motion that occurs after discovery) After discovery parties can move for summary judgment if there is no genuine issue of material fact and movement is entitled as a matter of law. Parties may use affidavits, depositions, and interrogatories, all of which must be admissible evidence in trial.

- Summary judgment is only granted when a judge concludes that there is no way a jury could find in favor of one party. - Summary judgment motion challenges opposing partys evidentiary sufficiency (unlike 12(b)(6)) - Hinges on whether parties can carry their burden of proof i. Moving party: has initial burden; if met burden transfers to non-moving party. ii. If non-movant meets burden, continues to trial, if not, movant wins - Generally, easier for meet burden of proof, rather than , since need only prove one element is not satisfied whereas must show that no fact is in dispute. - The

Adickes v. S.H. Kress Rule: Inferences should be made in favor of non-moving parties. Explanation: brought action against for violation of civil rights, which included an allegation of conspiracy. submitted evidence that there was no conspiracy and moved for summary judgment. Court held that it was error to grant summary judgment since a legitimate inference could have been made that there was conspiracy. Celotex v. Catrett Rule: Moving party must show that non-moving party will not be able to carry its burden at trial; moving part need not negate opposing claim. Explanation: brought action against asbestos manufacturers for wrongful death of husband. After discovery moved for summary judgment. Court granted summary judgment, holding that did not have sufficient evidence to make prima facie case. The holding in Celotex did not directly overturn Adickes, but it lowered the threshold for summary judgment. Scott v. Harris Rule: Summary judgment is appropriate when evidence is so overwhelmingly in favor of certain set of facts, that no testimony could reasonably contradict it. Explanation: (driver) brought action against (police) for violation of 4th amendment. alleged used unreasonable force. However, video evidence indicated that s conduct was entirely reasonable. Court held that video evidence was so persuasive that no jury could find in s favor. Summary judgment is appropriate when the moving party can show that the non-moving party will not be able to make prima facie case at trial, either (1) by showing non-moving party has insufficient evidence, or (2) because contradicting evidence is so persuasive that no jury could reasonable agree with non-moving party. (Celotex; Scott)

II. Judge and Jury 7th Amendment preserves the right to a jury trial for all legal claims. At the time the constitution was signed, there was no right to a jury trial for equitable claims, and that remains true today. Policy: Rule 2 created the right to a jury issue.

Beacon Theatres v. Westover Rule: Where legal and equitable claims are joined together in the same action, legal claims must be tried by a jury before the equitable claims can be resolved by a judge. Explanation: brought action against . counter-claimed, and pursed both legal and equitable claims. Court held that the jury must decide the legal claims first, and based on the facts established by the jury, the judge would decide the remaining equitable claims. Dairy Queen v. Wood Rule: Even if complaint seems to be equitable, if it can be satisfied with a legal remedy (i.e. damages), then let it go to the jury to receive legal relief. Explanation: brought action for injuction and damages (equitable and legal). argued that legal claim was actually equitable since it sought equitable relief. Court held that the most natural construction the claim indicated a legal character. The type of claim and the type of remedy, not the wording of the complaint, determine the nature of the claim. Curtis v. Loether 1974 Rule: The 7th amendment affords the right to a jury trial for all actions seeking damages in the federal courts. Explanation: brought Title VIII claim (fair housing provisions) seeking injunction and punitive damages (equitable and legal remedies). made jury demand. The district judge denied demand. Court held that if action is of the type that would have been heard by jury when constitution was signed, then that right is preserved by 7th amendment. Actions for damages are of that type. Markman Rule: A jury is not needed for a patent law claim, because interpretation of patent law is the exclusive providence of the court.