CIVIL PROCEDURE OUTLINE

FORDHAM LAW: PROFESSOR ERICHSON – SPRING 2011 NOTE: Outline follows chapter format of Erichson’s review book, not the class schedule. While it is out of sequence with his schedule, his lecture notes are included in the outline.
12(b)(6) 12(c) Inst./Charge 50(b) ReJML/59 56 50(a) JML

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SUBJECT MATTER JURISDICTION
A. Introduction to State and Federal Courts
1. 2. 3. One Nation, Multiple Court Systems Trial and Appellate Courts Federal Subject Matter Jurisdiction • Whenever a court realizes that it lacks subject matter jurisdiction the court must dismiss the case even if no party has objected. • 28 U.S.C. § 1331 gives the US district courts original jurisdiction over “all civil actions arising under the Constitution, laws or treaties of the US.” o When plaintiffs sue under federal statutes governing civil rights, securities, antitrust, or other federal laws, they may file their cases in federal court. 1. The Well-Pleaded Complaint Rule • In Louisville & Nashville Railroad Co. v. Mottley the Court held that federal question jurisdiction cannot depend on an anticipated federal defense. 1

B.

Federal Question Jurisdiction

• For federal question jurisdiction, the claim itself must arise under federal law. o Many authorities refer to this notion as the well-pleaded complaint rule.  It does not actually have anything to do with whether a complaint is well pleaded, but rather you must show that the plaintiff’s claim itself arises under federal law.

2.

State Law Claim with Federal Issue • Occasionally, state law claims involve federal law so centrally that the federal courts will exercise federal question jurisdiction. • Federal courts have federal question jurisdiction over state law claims if (1) federal law constitutes an essential element of the pleaded claim, (2) the case implicates a substantial federal interest, (3) the federal issue is contested, and (4) federal jurisdiction would not interfere significantly with the division of labor between state an federal courts. • In Merrell Dow Pharmaceuticals v. Thompson, the plaintiffs sued a drug manufacturer for a state law tort claim, but the plaintiffs assertion of negligence was that Merrell Dow breached its duty under a federal statute. o The Court held that it did not create a federal cause of action, because for a state law claim to give rise to federal question jurisdiction, not only must federal law establish a necessary element of the plaintiffs claim, but there must also be a substantial federal interest in the resolution of the matter. • In Grable & Sons Metal Products v. Darue Engineering, by contrast, the Court upheld this elusive type of federal question jurisdiction, when Grable sued under state law to quiet title to property, alleging that the notice of seizure given by the IRS was defective, and therefore the sale of property to Darue was invalid. o The complaint was well pleaded in the Mottley sense because it required federal law (IRS notice provisions) to assert an element of the claim, moreover, the federal government had a substantial interest in assuring that IRS provisions were interpreted consistently. o The Court noted that adjudication of the case would not interfere with the state/federal division of labor. o Also the Court might have avoided approving federal jurisdiction 2

over the case if would have forced federal courts to hear hundreds more cases like it. o Still note, most federal question cases involve claims created by federal law; Grable is a pretty uncommon exception.

C.

Diversity Jurisdiction
1. Types of Diversity • 28 U.S.C. § 1332(a) lists four types of diversity: (1) cases between citizens of different states, (2) cases between citizens of a state and citizens of a foreign state, (3) cases between citizens of different states in which foreign citizens are additional parties, (4) cases between a foreign state as plaintiff and citizens of a state or different states. Determining Citizenship • Individuals: For purposes of diversity jurisdiction, courts determine citizenship based on domicile. o Domicile is physical presence plus an intent to remain indefinitely. o No one is without domicile, and no one has multiple domiciles. • Corporations: For purposes of diversity jurisdiction, the state defines citizenship two ways. o (1) A corporation is considered a citizen of its state of incorporation. o (2) A corporation is considered a citizen of the state of its principal place of business.  To establish principal place of business, courts have used different tests such as the “muscle” test, focusing on where the bulk of the company’s day-to-day operations are locacted. In Hertz, the Court used the “nerve center” test, focusing on where the corporate headquarters are located.

2.

• Unincorporated Associations: Partnerships, labor unions, and other unincorporated associations are different from corporations. Such entities are considered citizens of every state in which any member is a citizen. 3. Complete Diversity • In Strawbridge v. Curtiss, the Court held that complete diversity of 3

Diversity Jurisdiction over Class Actions • Under the Class Action Fairness Act of 2005 (CAFA). recently affirmed by the Court. • Congress has enacted dozens of jurisdiction-granting statutes. 5. No plaintiff may have the same citizenship as any defendant. o A plaintiff may aggregate as many claims as he or she has against a single defendant in order to satisfy the amount. 4 . 4. • A long-standing rule. holds that the moment for determining citizenship is when the case was filed. D. a class action is generally subject to federal jurisdiction as long as it meets minimal diversity and the aggregate amount in controversy exceeds $5 million. o Minimal diversity means that at least one member of the class is a citizen of a different state from any defendant.000 breach of contract claims against a defendant. Other Bases for Federal Subject Matter Jurisdiction • Federal jurisdiction extends to cases in which the US government is a party.  If Plaintiff 1 and Plaintiff 2 each have $40. even if they are joined in a single lawsuit. o Claims by or against multiple parties may not be aggregated for purposes of the amount-in-controversy requirement. Amount in Controversy • The amount in controversy must be greater than $75. • Aggregation of Claims: Whether amounts can be added up to meet the amount-in-controversy requirement depends on whether you’re aggregating claims of a particular plaintiff against a particular defendant or whether you’re aggregating claims involving multiple parties. o Plaintiff’s claims against multiple defendants cannot be aggregated.000. their claims do not satisfy the amount-in-controversy requirement.citizenship is required. as well as cases involving ambassadors and other public ministers. • Federal courts also have subject matter jurisdiction over admiralty and maritime cases.

Gibbs. 19. • 1367(b): If it is founded on diversity jurisdiction though. Supplemental Jurisdiction • If a federal court has subject matter jurisdiction over a claim. the district courts shall not have supplemental jurisdiction over claims by plaintiffs against persons made under Rule 14. • The Court decided that it was okay for the state tort law claim to tag along with the federal labor law claim. cross-claim. • Whether it is a scenario in which a court has federal question jurisdiction over one claim and supplemental jurisdiction over a related state.” • In United Mine Workers v.S. or third-party claim that does not satisfy complete diversity or the amount-in-controversy requirement. intellectual property. 20 or 24. o “The Common Nucleus of Operative Fact”: If a related claim forms part of the same “case” or “controversy” as the claim supporting federal jurisdiction.”  Direct response to Finley. or a third-party claim. § 1367(a) says that if a federal court has jurisdiction over an action. the district courts shall have supp. the question arises whether the federal court may also adjudicate related claims that do not have an independent basis for federal jurisdiction under supplemental jurisdiction.including bankruptcy. cross-claim. o “Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. as long as the claim arises out of the same claim as which the 5 . then the court “shall have supplemental jurisdiction over all other claims that are so related to claims. and civil rights. Jurisdiction over all other claims that form part of the same case or controversy under Article III of the Constitution. E. or the court has diversity jurisdiction over an original claim and a party asserts a related counterclaim.C. • 1367(a): If it arises from the same common nucleus of operative fact. the plaintiff sued the union in federal court asserting one claim based on a federal statute. Grant of Supplemental Jurisdiction • 28 U. and the other claim asserted a state common law claim for tortious interference with contract. or a federal claim and a related state counterclaim. 1. § 1367: Supplemental Jurisdiction. then jurisdiction may extend to the related claim. antitrust.

then supplemental jurisdiction may not be used for claims by plaintiffs against additional defendants or third-party defendants. look to Owen Equipment & Erection Co. which codifies and extends Kroger. v. or have some other independent basis such as federal question jurisdiction.court has original jurisdiction. o Despite the claim arising out of the same facts as her original claim.  • Under § 1367(b). • Three Warnings About § 1367(b): (1) it does not grant jurisdiction. The Court did not want parties to use supplemental jurisdiction as an end run around the statutory constraints on diversity jurisdiction. o Such claims must independently meet the requirements for diversity jurisdiction. it 6 .  Since Kroger wouldn’t have been permitted to file a federal lawsuit against both companies. Kroger was electrified and his widow sued the power company in federal court. o The power company asserted a third-party claim against the equipment company that operated the crane and then Kroger asserted a negligence claim directly against the equipment company. Kroger. o The question was whether the federal court had jurisdiction over Kroger’s claim against the equipment company. since the court didn’t have diversity jurisdiction over Kroger and the equipment company. if the case is in federal court solely because of diversity jurisdiction. supplemental jurisdiction presents the risk that a party may try to get into federal court without meeting the requirements. she shouldn’t be allowed to accomplish the same thing by waiting to asserting the second claim after the equipment company was joined as a third-party defendant. the grant of supplement jurisdiction applies. so 1367(b) rejects jurisdiction over certain claims in diversity jurisdiction cases. the Court decided there was no jurisdiction over the claim. Constraint on Supplemental Jurisdiction in Diversity Cases • In diversity cases. • To understand the 1367(b) carve-outs. 2.

and as enacted in § 1367(c). (3) pay attention to its exact words. or 24 (types of joinder). supplemental jurisdiction is at the discretion of the courts. You don’t ask for permission you simply remove. 20. but the plaintiff chose to file in state court. Removal Procedure (28 U. giving the federal court. notifies the other party.S. not the state court. removal ordinarily requires agreement among all the defendants who have been served. Removal 1. 2.” not claims by defendants against third-parties.S. it goes to the federal district court “for the district and division embracing the place where such action is pending.” • In cases with multiple defendants. to federal court. • In-State Defendant Exception: An in-state defendant may not remove a case based on diversity jurisdiction. • The defendant files a notice of removal in federal court. • Under § 1367(c) a court may decline to exercise supplemental jurisdiction (1) if the claim raises a novel or complex issue of State law. since that defendant should not be worried about unfavorable local bias in the defendant’s home court. 7 . not a plaintiff’s right. Removal from State Court to Federal Court • 28 U. o It only applies to claims “by plaintiffs. 3. Discretionary Decline of Jurisdiction • In Gibbs. after the case has been removed.C. F. the power to decide the question of federal subject matter jurisdiction. • When a case is removed from state court. and gives a copy to the state court. (3) if the district court has dismissed all claims over which it has original jurisdiction. § 1446) • It’s not up to the state court to give permission. o It only applies to claims against persons made parties under Rule 14. (2) it applies ONLY in diversity cases – if a case is in federal question jurisdiction.merely takes it away. § 1441 gives a defendant the right to switch a case that could have been brought in federal court. • Move to Remand: the plaintiff moves to remand in federal court. 19. (2) if the claim substantially predominates over the claim over which the district court has federal jurisdiction.C. you don’t have to worry about § 1367(b).

• Diversity Jurisdiction o First.   For individual citizenship. There is a substantial federal interest. 3. o Was the cause of action created by federal law?   If yes  federal question jurisdiction.  o Determine the amount in controversy. and Will not interfere with the state/federal division of labor. If any plaintiff’s citizenship is the same as any defendant’s citizenship  no diversity jurisdiction.  If $75. For corporate citizenship. Separate and Independent Federal Claims • When a removed case includes both a federal question claim and an unrelated state claim. If no  slim chance of federal question jurisdiction. rather than in the well-pleaded complaint  no federal question jurisdiction. determine both the state of incorporation and the principal place of business (nerve center test).• There is a 30-day time limit for defendants to remove. the removal statute purports to give the federal judge discretion about whether to retain the entire case or to remand part of it back to the state court. determine whether complete diversity exists. determine domicile. The federal issue is disputed.000 or less  no diversity jurisdiction. Analyzing Subject Matter Jurisdiction Federal Subject Matter Jurisdiction Analysis • Federal Question Jurisdiction: Does the claim “arise under” federal law? o If federal law comes up as an anticipated defense. 8 . G. but only if: • • • • Federal law forms an essential element of the claim.

if any defendant is a citizen of the forum state  no diversity removal jurisdiction. Otherwise. If yes  Is the additional claim asserted by a plaintiff against a 9 . • If the court has subject matter jurisdiction over part of an action. unless exception applies. • If any basis succeeds. the court must dismiss for lack of subject matter jurisdiction. proceed with analysis. o If a class action  apply either standard diversity jurisdiction analysis or use special analysis under CAFA  If minimal diversity and aggregate amount in controversy is more than $5 million  CAFA jurisdiction. • Other Bases of Federal Jurisdiction o Is the US a party? o Is it an admiralty or maritime case? o Is there some other applicable federal jurisdictional statute?  If yes to any of the above  federal jurisdiction.000  diversity jurisdiction. o Is it a controversy between states?  If yes  original jurisdiction in the Supreme Court. o Is supplemental jurisdiction over the claim prohibited by §1367(b)?  Is federal jurisdiction over the case based solely on diversity? • • If no §1367(b) does not apply. If yes  §1367(a)’s grant applies. then the federal court’s jurisdiction is proper.o If complete diversity and amount in controversy over $75. but an additional claim does not meet the usual requirements for federal jurisdiction  analyze supplemental jurisdiction: o Does the additional claim arise out of the same facts as the original?   If no  no supplemental jurisdiction. o But in a removal situation.

or an intervenor-defendant? o If no  §1367(b) does not apply. o Will the court decline jurisdiction over the additional claim?     Does the claim raise a difficult issue of state law? Does the claim substantially predominate? Has the court dismissed the claim over which it had original jurisdiction? Is there some other compelling reason to decline jurisdiction? • If yes to any  the court may decline to exercise supplemental jurisdiction. a joined defendant. • Under Pennoyer. PERSONAL JURISDICTION H. but lacks power over property outside the state boundaries. and that parties must be properly notified about the lawsuit. which is what makes it so important to the doctrine despite being overturned. Development of Territorial Jurisdiction Doctrine Pennoyer v. Neff • Central to this case. via power over their property. a state court has power over property within that state. • The Court framed the judgment as a case about constitutional rights: judgment without personal jurisdiction violates due process. Power over the person depends on whether the person was served within the state borders. o If yes  the court lacks subject matter jurisdiction over the additional claim. is the idea that a court’s power is limited by territorial boundaries.third-party defendant. • In Rem Jurisdiction: Power over property. • Quais-in-rem Jurisdiction: Power over person. • In Personam Jurisdiction: Power over the person. 10 . 1.

and the dispute arose out of that employment. International Shoe v. “Does the defendant have certain minimum contacts with the state that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice. o International Shoe got the benefit of having salespeople working in Washington.’”  The defendant employed a number of salespeople in Washington. • Kane v. whether the defendant was ‘present’ in Washington or whether it had ‘consented’ to jurisdiction by doing business in Washington. the court has General Jurisdiction over the defendant. The Court says the court has power over its own citizen. General Jurisdiction • If a defendant’s contact with a forum state is so strong that the state’s courts would have jurisdiction over the defendant for any and all claims. NJ (1919) Out of state drivers need to sign a form that says a state-appointed person will accept service on their behalf. • Individual: General jurisdiction is based on domicile. so it was only fair that it had the burden of being subject to suit in that state’s courts for money it owed based on those employees. you have accepted this state-appointed officer as the recipient of service on behalf of defendant.2. I. o The court asked. if a company or individual gets the benefits of a state. • Milliken v. Pawlowski (1927) No need to fill out a form – simply by using our state roads. That sufficed to meet the requirement of “minimum contacts. technological advancement made Pennoyer unworkable. 3. regardless of whether the claims arose out of anything that happened in the state. Post-Pennoyer Expansion • Following Pennoyer. • Hess v.” • The logic of International Shoe is reciprocity. regardless of the state of process. then it should expect to be subject to the power of that state’s courts. Washington • Instead of following Pennoyer’s analysis. which assumed that each state was pretty much separate and that interstate activity was the exception. 11 . the Court asked whether the company’s contacts with Washington were enough to justify jurisdiction. Meyer (1940) A citizen of Wyoming was served with process in Colorado.

the Court held a company was subject to general jurisdiction of the Ohio courts because for a period of time the company was operating out of an Ohio office where the company’s president was located. “systematic and continuous.”  J.  If a company merely buys and sells a lot in a state or sends its employees there regularly to conduct business. the Court held that the defendant’s purchase of millions of dollars of equipment in Texas. the court lacks jurisdiction. then the courts of that state have in personam jurisdiction over the person for any claim. the Court held that if an individual is domiciled in a state. Benguet Consolidated Mining Co. 12 . 1. o In Perkins v. then go to the constitutional issue. o In Helicopteros Nacionales v. The takeaway is that for general jurisdiction the company must have a serous physical presence in the state. • A factory or office building with permanent company employees in the state might suffice – as courts often say. Meyer. by contrast. If not. were insufficient for general jurisdiction. If the defendant doesn’t fit within the meaning. and (2) where a company is headquartered.o In Milliken v. a court must ascertain whether it has a statutory basis for asserting jurisdiction over the defendant.. Long-Arm Statutes • Before getting to the minimum contacts test. the statutory step merges with the constitutional analysis. Here. that does not give the state general jurisdiction over the company. Specific Jurisdiction • The court may have specific jurisdiction over a defendant if the claim arises out of the defendant’s contact with the forum state. regardless of where it may have arisen. • Some states long-arm statutes list specific bases for personal jurisdiction over out-of-state defendants. Hall. • Corporation: General jurisdiction is based on (1) Where a corporation is incorporated. • Some states statutes simply state the courts may assert personal jurisdiction to the full extent permitted by the constitution. along with other business contacts with the state. which addresses whether specific jurisdiction over a particular defendant would be constitutional under the Due Process Clause.

the Court held that an Oklahoma court lacked personal jurisdiction over Seaway (cardealer) and WWV. were subject to specific jurisdiction in California. not a purposeful act by the trustee.a single contact can be enough. • More than any other single concept. because personal jurisdiction requires “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State. Deckla. o In McGee v. because they had not purposefully availed themselves of Oklahoma. purposeful availment is the key to understanding personal jurisdiction – the contacts that matter for the minimum contacts test are those in which the defendant knowingly and purposefully does something toward the forum state. was not subject to jurisdiction in Florida. International Life Insurance Co. v. They had not made any intentional contact with Oklahoma. 3. The International Life Insurance Company purposefully mailing an insurance policy to California. the Court held that a reporter and editor of a newspaper located in Florida. The Robinsons’s driving to Oklahoma was “unilateral activity” just like Dora Donner’s move to Florida in Hanson. based on the effects of the defendant’s conduct. Minimum Contacts and Purposeful Availment • Minimum contacts are not merely about quantity . The Effects Test • In some cases. the Court held that a Delaware trustee responsible for a trust created by a woman. if it’s a substantial contact and if the claim arises directly from it.2. • In Calder v. o In World-Wide Volkswagen Corp.. the Court held the insurance company’s sale of a policy to a holder in California sufficed to give a California court jurisdiction over the company for a dispute over the policy. Jones. who subsequently moved to Florida. specific jurisdiction is based on a defendant’s out-ofstate conduct that causes effects in the forum state. • The contact must be purposeful – think International Shoe Company’s purposefully employing persons in Washington.”  The woman’s move to Florida was a “unilateral activity” by her.  They had sold a car to customers in New York. 13 . o In Hanson v. Woodson.

manufactured valves for Cheng Shin of Taiwan. 14 . in Calder. o Asahi of Japan.  Unlike in World-Wide Volkswagen.o The Court emphasized that the story about Jones concerned the California activities of a California resident. o Four justices said the minimum contacts test is met when a defendant puts a product into the stream of commerce and can foresee that the product may go to the forum state. in addition to placing the product in the stream of commerce. he had purposefully directed his efforts toward a Florida resident by entering into a substantial. longterm business relationship with a company headquartered in Florida. Personal Jurisdiction in Cyberspace • Courts have focused on whether the defendant’s contacts with the forum state are sufficiently substantial and purposefully to justify the state’s assertion of judicial power over that defendant. Business Relationships • In Burger King v. 4.  The whole Court agreed that the minimum contacts test may be met if the defendant. was suffered in California. did some purposeful act toward the forum state. o Four justices said the minimum contacts test requires a more direct link to the forum state than merely placing a product into the stream of commerce elsewhere. the Court failed to answer the question of whether stream of commerce constitutes purposeful availment for specific jurisdiction. defendants not only knew that their paper had a significant circulation in California. Superior Court. Rudzewicz. 6. such as designing its product for the forum state. who used them in their tires. a passive website that merely makes information available does not establish personal jurisdiction in all states that information is seen. 5. that were on a motorcycle in California. v. the Court held that despite Rudzewicz’s lack of physical presence in Florida. and that the article was drawn from California sources and the brunt of the harm. but also knew that Jones lived in California and suffer reputational harm there. • Ordinarily. or establishing service centers there. advertising in the forum state. Stream of Commerce • In Asahi Metal Industry Co.

the plaintiff and forum state had a legitimate interest).• Websites on which business is conducted have acted more purposefully toward the forum state than in the passive-website scenario. • General Appearance: If a defendant. • When analyzing the reasonableness of exercising personal jurisdiction. The three dominant factors are: (1) the burden on the defendant. K. ask yourself whether the case is more like Asahi (unreasonable because of international dimension combined with procedural posture in which forum state no longer had any interest) or Burger King (reasonable because. 7. 15 . then the defendant has consent to the court’s personal jurisdiction by going forward with the litigation. then the defendant gives up the right to object that the court lacks personal jurisdiction. (2) the plaintiff’s interest. 1. • In middle-ground cases with websites that permit an exchange of information. then the court has personal jurisdiction over that defendant. General Appearance • The most basic way for a defendant to consent is simply by appearing to litigate the case. personal jurisdiction depends on the level of interactivity and the commercial nature of the site. without objecting to the court’s personal jurisdiction. and (2) Reasonableness (“Fair Play and Substantial Justice”): Under the circumstances. so courts are much more inclined to find personal jurisdiction. and (3) the forum state’s interest. despite some burden on the defendant. Jurisdiction Based on Consent • If a defendant consents to the court’s power. files an answer or makes a motion. The Reasonableness Inquiry • The Court has described personal jurisdiction analysis in two parts: (1) Minimum Contacts (Purposeful Availment): Are there sufficient purposeful contacts between the defendant and the forum to permit jurisdiction. • Personal jurisdiction is a waivable defense – if the defendant consents. would it be reasonable to permit personal jurisdiction in the particular case? • The Court has suggested a multifactor analysis for determining whether personal jurisdiction would be unreasonable.

• Sometimes. 2. known as a special appearance. • Forum Selection Clauses: specify where litigation must be brought if at all. Personal Jurisdiction in Federal Court • Rule 4(k)(1)(A): If the state court would have personal jurisdiction over the defendant. (2) Show up and immediately object to the court’s personal jurisdiction. the Court announced that transient jurisdiction was not dead at all. the Court enforced a forum selection clause printed on the passengers’ ticket stating any dispute arising out of the cruise must be litigated in Florida. yet useful tool. o In Carnival Cruise Lines v.o If the defendant doesn’t wish to consent to the court’s personal jurisdiction. • Rule 4(k)(1)(B): A federal court has personal jurisdiction over a defendant joined under Rule 14 or Rule 19. L. where Carnival is headquartered. Advance Consent • A party can consent in advance to the personal jurisdiction of a court. parties do this by appointing an agent for service of process in a particular state. his wife served him with process in a divorce case. Superior Court. then so does the federal court. the defendant objects that the first court lacked personal jurisdiction upon enforcement of the judgment. 16 . the defendant has two options: (1) Default and collateral attack. o The Court held that if an individual defendant is served with process within the state. After a default is entered from not appearing. Shute. • Rule 4(K) contains additional provisions which extend personal jurisdiction a bit further in federal court than in state court. While in California for a business trip. for joining certain defendants (third-party defendants and compulsory joinder) who are nearby but might otherwise escape the court’s power. o This is a small. and who can be served with process within 100 miles of the court. especially in the business context. Transient Jurisdiction • In Burnham v. the court has in personam jurisdiction over the defendant. M.

some federal court will be able to assert power over that defendant for purposes of federal law claims. N. The Due Process Requirement of Notice • If due process means anything. Central Hanover Bank & Trust Co.. it means that if a proceeding is going to affect a party’s interests. stating that service of process gives a federal court personal jurisdiction over a defendant when authorized by a federal statute (used in interpleader). or by leaving the summons and complaint at the person’s home with someone “of suitable age and discretion” who also lives there. • Rule 4(d): If defendant agrees to waive a formal service of process. o This does not always require actual notice for a party to be bound by a judgment. • To challenge personal jurisdiction in federal court. • Rule 4(e)(1): Also allows service in whatever manner allowed under state law. the defendant gets extra time to answer the complaint. o Often defendants pair the Rule 12(b)(2) motion with Rule 12(b)(5) motion to dismiss for insufficient service of process. the defendant must pay whatever the costs the plaintiff 17 . the Court held that notice must be reasonably calculated to reach the person – you have to do what someone would do who actually wants to inform the person about the proceeding. a defendant may assert an objection in the answer or may make a pre-answer motion to dismiss under Rule 12(b)(2). arguing that service of process failed because it exceeded the court’s territorial reach. If a US defendant does not agree. • In Mullane v. that party should have an opportunity to be heard. but notice reasonably calculated to reach the party. Notice 1. 2. • Rule 4(k)(2): Ensures that whenever a foreign defendant has sufficient contacts with the United States to meet the minimum contacts test but they are so dispersed that contacts with each individual state would not be enough to get personal jurisdiction over the defendant in any state court.• Rule 4(k)(1)(C): Provides a statutory catchall. Service of Process • Rule 4(e)(2): Individuals in the US are served by personally delivering a copy of the summons and complaint.

incurs serving the defendant. State Court • Can the defendant be served within the state? • If the defendant is out of state. O. Constitutionality (due process).) • In Personam – General and Specific Jurisdiction. not unilateral act 18 . 1. waiver). o General Jurisdiction: Is the defendant’s relationship with that state is such that the state has power over that defendant regardless of whether that claim arose in that state?  Individual: domicile. then this analysis merges with the constitutional analysis in Part II below. Federal Court • Would the state court have personal jurisdiction over the defendant? Rule 4(k)(1)(A) • Even if the state court would lack jurisdiction. but there’s a Starbucks on every corner in NY). Minimum Contacts (Purposeful availment) • Did the defendant act purposefully. does the state’s long arm-statute extend to this defendant? o If the state’s long-arm statute extends to the full extent of due process. Authorization: Does the court’s territorial authority for service of process reach this defendant? a.  Corporation: headquarters (Perkins). and Notice (both statutorily and constitutionally sufficient). Coffee burn in Idaho. “doing business (Perkins/Helicopteros)” – a company can be present (Starbucks hypo.. clause. Analyzing Personal Jurisdiction Personal Jurisdiction Analysis Three part analysis: Authorization for assertion of jurisdiction. incorporation. does the federal court have jurisdiction under the bulge provision or other exceptions of Rule 4(k)(1)(B)-(C)? 2. b. consent (agent consent. contractual clause). presence (Pennoyer/Burnham). consent (appointing an agent for service of process. Constitutionality: Does this defendant have sufficient connection with the forum state so that jurisdiction comports with due process? (Heart of the analysis. o Specific Jurisdiction: Does the claim arise out of the defendant’s contact with the forum state? Yes International Shoe Test – Two Part test i. • Defendant can make a 12(b)(2) motion/preserve objection by using lack of PJ as a defense in Answer.

McIntyre v. • § 1391(a) applies to cases in federal court based on diversity jurisdiction. have their own specific venue statutes. o The difference really doesn’t matter. Reasonableness (fair play and substantial justice) • Consider three main factors (Asahi): o Burden on the defendant o Interest of the plaintiff o Interest of forum state. 1. Service of process (was service accomplished properly?) • State court: Did service comply with state rules on service of process? • Federal court: Did service comply with Rule 4? • Constitutionality (Was the defendant notified in a way that comports with due process?) • Was notice reasonably calculated to reach the defendant? (Mullane. Defendant’s Residence • § 1391(a)(1)/(b)(1): Permits a case to be brought in a “judicial district 19 . decide whether to look at § 1391(a) or (b). Firing a gun from NJ across the Hudson in NY) (Keeton/Calder).C. • To apply the general venue statute. Venue in Federal Court • To figure out which districts are proper venues for a case in federal court. effects (Hypo. contract. stream of commerce (Asahi/J. look at the general federal venue state 28 U. NiCastro). o Remember that a few types of cases. Venue in State Court • Venue rules for state courts vary from state to state and are generally regulated by statute. Notice a.S. but its important to cite the correct statute. 3. by another (WWVW/Hanson) • Common scenarios: tortious conduct. § 1391. Q. Jones) VENUE P. such as interpleader.ii. • § 1391(b) applies to federal question cases.

provides that the defense of improper venue is waived if not asserted at the outset of the litigation.” o This makes sense. • Rule 12(h)(1). If there are multi-defendants. Venue Transfer • There are three different federal venue transfer statutes: § 1404: Deals with cases that are filed in a court that has jurisdiction and where venue is proper. 3. o Don’t say venue is proper because the defendant is subject to personal jurisdiction. venue is proper in this district under § 1391(a)(1) because all defendants reside here. § 1406: Deals with cases that are filed in a venue that is not proper and permits a court to transfer from the impermissible venue to a permissible venue. if the defendant is subject to personal jurisdiction in a district. Events or Property • § 13931(a)(2)/(b)(2): Permits cases to be brought in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred. like the defense of personal jurisdiction. • Residency for Corporations: A defendant corporation resides in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.where any defendant resides. Venue upon Removal • An action removed to federal court is removed to the district court of the US for the district and division embracing the place where such action is pending. rather say § 1391(c) establishes that the defendant resides in this district because it is subject to personal jurisdiction here. the court may go ahead and hear the case. or a substantial part of property that is subject of the action is situated. than it makes more sense to base venue on where the relevant events occurred. 1391(c) o So. R. 2. 4. but under circumstances in which would be more convenient for the case to be heard somewhere else. 20 . with a single corporate defendant. if all defendants reside in the same State. then federal venue in that district would be proper under § 1391 (a)(1) or (b)(1). Waiver • If a defendant doesn’t object to venue.

Transfer from an Improper Forum • Rather than dismiss a case under a 12(b)(3) motion to dismiss for improper venue. 3.§ 1407: Deals with situations in which related cases have been filed in multiple federal district courts. Venue Transfer and Choice of Law • The Court has held that the transferee court should apply the same law that the transferor court would have applied. Multidistrict Litigation Transfer • Involves situations in which related lawsuits have been filed in multiple federal district courts. when a court is deciding whether to transfer venue. look at where the parties are located. a case filed in an improper forum can be transferred even if both venue and personal jurisdiction are missing. • Power is transferred to a seven-judge Judicial Panel on Multidistrict Litigation that decides whether it makes sense to transfer the cases to a single district court. 2. • Only applies to a transfer from proper venue. and where the relevant events occurred. where the witnesses reside. Transfer from a Proper Forum • §1404 – If you are deciding whether a court is likely to grant a motion to transfer venue. 21 . • MDL’s only handle pretrial matters. where the evidence can be found. and decides which court. 4. it offers a way to bring cases together so they can be handled more efficiently. not an improper venue. • § 1407 permit the transfer of multiple cases to a single federal district court for coordinated pretrial handling. • Venue transfer is highly discretionary: o The words of the statute give the district plenty of leeway in deciding whether to grant a transfer of venue. a court can transfer a case to a proper venue. 1. o This way. • § 1406 – As interpreted by the Court. rather than worrying about whether transfer would alter the applicable substantive law. it can focus on the location of the parties and witnesses.

(2) private interest factors. the Court applied a three-part analysis: (1) adequate alternative forum. Forum Non Conveniens • Gives courts a basis to dismiss actions that should more appropriately be brought in a different court. or else the court will deny the motion. 3. • If the more appropriate forum falls within the same judicial system. • In Piper Aircraft v. courts defer to the plaintiff’s choice of forum. because Scotland was a more appropriate forum. Private Interest Factors • Private interest factors include the location of the parties. and (3) public interest factors. • In general. • This basically means two situations: a case filed in a state court that ought to be brought in a different state or a case filed in the US that ought to be brought in another country. 1. • The fact that the alternative forum may provide less favorable law to the plaintiff does not. then there is no need for dismissal because venue transfer works fine. make it an inadequate forum. Adequate Alternative Forum • An adequate alternative forum must exist. then a court may refuse to grant a forum non conveniens motion. • Forum non conveniens comes into play when the more appropriate forum is a different court system. • If the other country’s legal processes are inadequate. But courts give plaintiff’s choice less deference if it is not the plaintiff’s home forum. in itself. Public Interest Factors • The court asks which forum has a greater interest in the dispute? Which forum would offer a more efficient and appropriate use of judicial resources? 22 .S. witnesses. and disturb it only for good reason. the Court laid out the analysis for applying forum non conveniens. 2. o In reaching that decision. Reyno. and evidence. o The Court agreed that dismissal was warranted.

the holding was largely a way to avoid discrimination in favor of out-of-state litigants. NY law would apply. the federal courts should “discover” law. not another body of law. the Court held that the Rules of Decisions Act from 1789 meant that the “laws of the several states” that federal courts were to apply when sitting in diversity. holding that the federal court must apply not only state statutes but also the common law decisions of state courts. U. Tompkins. federal courts in equity cases still applied the doctrine of laches instead. but if it were deemed procedural. federal courts apply state substantive law and federal procedure. o If the statute of limitations was deemed substantive. o Instead. The Basic Doctrine • On state law claims. Swift to Erie • In Swift v. 23 .THE ERIE DOCTRINE T. is state statutes but not general common law. o Rather than focus on whether it was substantive or procedural. Development of the Erie Doctrine 1. Tyson. the Court focused on whether the rule would determine the outcome of the dispute. then a litigant might obtain a different result by choosing either federal court or state court. 2.  If federal courts do not have to apply state common law. • In Erie Railroad v. o As Justice Brandeis’s opinion explained. But at the time. Stentor.  The point of diversity jurisdiction was to provide another tribunal. the Court held that the federal court must apply whichever substantive law would be applied by the state court where the federal court sits. federal law would apply. v. the Court overruled Swift. the plaintiff brought the claim after the relevant time permitted under New York’s statute of limitations had expired. • In Klaxon v. Guaranty Trust to Byrd • In Guaranty Trust Co. create a sort of federal common law. York. and in turn.

or modify any substantive right. At least be aware of the possibility that countervailing federal interests may figure into the choice between federal and state law. Hanna and Post-Hanna Application • In Hanna v. The defendant contended the Massachusetts statute should apply and the complaint dismissed.• Outcome Determinativeness Test: If the difference between the federal and state rule would determine the outcome. apply a more sophisticated outcome determinativeness 24 .  3. • It quickly became clear that the Outcome Determinativeness Test was way too simplistic for distinguishing between substance and procedure. the Court held that: (1) If there is a federal rule directly on point. • In Byrd v. Its “countervailing federal interests” test has rarely tipped the scales and is rarely cited by the Court. then the federal court must apply the state rule. Plumer. then that federal rule applies as long as it is valid under the REA.  Don’t rely too heavily on Byrd. Blue Ridge Rural Electric Cooperative. o Rather than apply the outcome determinativeness test. for situations in which the Erie/RDA analysis was unavoidable because there was no federal rule or statute on point. but not compliant with Massachusetts law. the Guaranty Trust rule meant that everything was outcome determinative. That is so long as the rule does not “abridge. Blue Ridge wanted the judge to decide Byrd’s employment status under South Carolina law. but Byrd wanted the jury to decide under federal law. the Court acknowledged that there’s more to the story than outcome determinativeness. enlarge. in holding that in balancing the strong federal interest in the power of the federal jury against the state interest in in having the judge decide. the federal rule should apply. the plaintiff served process on the defendant in a manner compliant with federal rules. o As applied. o The Court identified a “countervailing federal interest” in the allocation of power between judge and jury in federal court.” (2) Further.

Gasperini • In Gasperini v. o Goes deeper than the Guaranty Trust test. the Court narrowly construed Rule 3 to avoid a direct conflict with federal law. 2.test.to avoid inequitable administration of the laws. from the point of view of a litigant filing the case.. the court considered each issue independently and found a way to accommodate both state and federal interests. applying the twin-aims version of the test to Hanna. • Hanna’s Twin Aims of Erie: 1 – the best way to discouraging forum shopping is to make sure the outcome won’t differ from state to federal court. Is there anything inequitable about requiring personal service in state court but permitting dwelling-place service in federal court? Nope. would either side have chosen a court based on the rules for service of process? No. make sure the outcome won’t differ from state to federal court. it tells you that when you see a conflict between state and federal law. you have to examine closely whether the federal rule (or statute) governs the exact issue on which state law conflicts. we see that the outcomedeterminative test would find that state law should apply since it would result in dismissal. Center for Humanities.  • o Maybe the rule is not directly on point.  Ex. before you assume that some federal rule applies under Hanna and the REA. by referencing the twin aims of the Erie Rule: (i) discouraging forum shopping and (ii) avoiding inequitable administration of the laws. because it ask if it’s the sort of difference that really matters.. • Therefore. in which case Hanna no longer directs application of the federal rule. an appellate court has the power to review the amount of a jury verdict and to order a new trial if the verdict 25 . 4. But. Armco Steel Corp. the service-of-process rule is not outcome determinative at al. While its hard to say what exact lesson to learn from Walker. In Walker v. Under Guaranty Trust. and you are into the broader analysis under Erie’s twin aims and the RDA. o Under New York law.

“deviates materially” from a reasonable amount. o The federal courts, by contrast, allow a jury verdict to stand unless the amount is so unreasonable that it “shocks the conscience.” o Furthermore, unlike NY appellate court, the federal circuits have no independent power to review the amount of a verdict.  The federal district court decides whether to grant remittitur (a new trial unless the plaintiff accepts a reduced damages award); the circuit court’s power is limited to reviewing the district court’s decisions for abuse of discretion.

o The Court saw two distinct, yet intertwined issues: (1) deviates materially v. shocks the conscience; (2) power of appellate review.  (1) goes to the substantive outcome of the case as an Erie matter, so state law applies; (2) concerns the allocation of power between the federal district and circuit court, so federal appellate review should apply. • In this way, the Court was able to protect the federal interest in setting up the functions and institutional capacities of federal trial courts and appellate courts, while accommodating New York’s interest in having a less deferential standard for reviewing excessive jury awards.

• Gasperini brings the pendulum back towards the center between state law and federal law, reaffirming the importance of federal interests but also demanding accommodation of state interests.

V.

Determining State Law
• State law is whatever the state high court says it is. When applying state law, federal courts must apply the law exactly as they believe the state’s high court would do. o The federal court therefore looks to see if the state supreme court has decided the issue, and if so, it follows that ruling unless there is very good reason to believe that the state supreme court would no longer decide it the same way.  If there is no state supreme court decision on point, then the federal court looks at intermediate appellate decisions from that state, or other sources the state high court would consider, such as cases from other states, treatises, and policy rationales.

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W. Applying the Erie-Hanna Analysis
Erie-Hanna Analysis 1. Spotting the Erie Issue a. You are in federal court on a state law claim. (Probably this is because federal subject matter jurisdiction is based on diversity of citizenship, but it could also be a state claim in federal court on supplemental jurisdiction.) b. On some issue, you see a conflict between what the federal court would do and what a state court would do in the same situation. 2. Federal Rule or Statute a. Is there a valid federal rule or statute directly on point? i. If yes, the court will apply federal law because a federal court must apply any valid federal statute or rule even if it conflicts with state law. (Hanna) ii. But not so fast. First, make sure the federal rule or statute really is directly on point, and make sure it is valid. b. Is the federal rule or statute directly on point? i. What is the precise issue on which federal and state law diverge? Find each federal rule or statute that governs that issue, and examine whether it addresses the specific point on which federal and state law differ. If the federal rule or statute addresses the precise issue you have identified, then it is directly on point. c. Is the federal rule or statute valid? i. For a federal statute, ask whether it is constitutional. ii. For a federal rule (such as the FRCP), also ask whether it complies with the REA. • Under the REA, a valid rule must not abridge, enlarge, or modify any substantive rights. 3. Federal Practice a. If there is no valid federal rule or statute directly on point (that is, state law conflicts with a federal practice, but not with a specifically enacted rule or statute), then you must do the more complete Erie/RDA analysis. There are three ways you might know that you’re in this situation: i. No applicable federal rule or statute exists (ex., Guaranty Trust, where federal law was based on the equitable doctrine of laches rather than on any particular rule or statute). ii. There is an applicable federal rule or statute, but on closer examination it does not directly address the point (as in Walker, where Rule 3 defined the commencement of the action but did not specifically address the statute of limitations). iii. There is an applicable federal rule or statute directly on point, but it is invalid under the constitution or the REA.

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b. Erie/RDA Analysis i. Apply the Erie/RDA test to determine whether state or federal law applies. • Ask the following questions about the point on which state and federal law differ: o Is it outcome-determinative? (Guaranty Trust) o Is the state law bound up with state-created rights and obligations? (Byrd) o Would applying federal law rather than state law promote forum shopping or inequitable administration of the laws between state and federal court? (Hanna) o Does the state law affect primary decisions about human conduct? (Harlan’s Hanna concurrence) • Based on these questions, if the state law is not substantive/outcome-determinative (that is, if the answers were mostly no), then the court will apply federal law. • Based on these questions, if the state law is substantive/outcomedeterminative (that is, if the answers were mostly yes), then the court probably will apply state law, but first may consider the federal and state interests at stake. ii. Consider federal and state interests. Erie-Hanna Analysis Summary Erie Issue (1) Federal Rule/Statute a. Directly on point? b. Valid? (REA) o If yes Apply federal law. o If no… (go below) (2) Erie/RDA • Outcome-determinative? • Bound up with state-created rights/obligations? • Encourage forum-shopping? • Inequitable administration of laws? • Primary human activity?

PLEADINGS
• Pleadings are where each litigant first gets to tell its side of the story as a formal part of the litigation process. • The plaintiff files a complaint setting forth the plaintiff’s allegations. o The complaint is what officially starts the lawsuit.

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2. Rather. o The pleadings also provide a basis for motions to dismiss and other procedures to test whether those claims and defenses have enough substance to be allowed to proceed. the plaintiff files a reply to the defendant’s answer. because PJ can be waived). (2) a “short and plain statement of the claim showing that the pleader is entitled to relief. even taking the plaintiff’s factual allegations as true. Modern Pleading a. the claim lacks legal merit.” (3) a demand for judgment. o For a valid complaint in federal court Rule 8(a) requires three things: (1) a statement of the basis for jurisdiction – subject matter jurisdiction (not PJ. setting forth the plaintiff’s claims against the defendant.• The defendant then files an answer responding to the plaintiff’s allegations. History • The point of the Federal Rules of Civil Procedure pleadings is not to reduce the dispute to a single issue. X. or sometimes instead files a pre-answer motion. but also to counterclaims. cross-claims. Federal Rule 8 • The Complaint: The pleading that a plaintiff files to initiate a lawsuit.  If federal jurisdiction is based on diversity. 29 . • The pleadings serve the critical function of notifying each party about the adversary’s claims or defenses. and third-party claims. Complaint 1. the complaint must allege the citizenship of each party and the amount in controversy. o Rule 8(a)’s requirements apply not only to original claims. • Pleadings also give the court the opportunity to decide whether a claim should be dismissed at the outset either for some procedural flaw or because. o In some cases.  Plaintiffs are not required to specify the amount. the pleadings give the parties notice of each other’s claims and defenses. but rather state what kind of relief plaintiff is seeking.

After a court dismissed the complaint for failing to allege facts in enough detail to show discrimination. Iqbal. o In Conley v. o In Swierkiewicz v. and alleged in light of the parallel conduct. Twombly and Ashcroft v. the defendants agreed not to compete with one other. the plaintiff needed to show that each defendant acted with  30 .” o In Iqbal.b. the Court announced a requirement of plausibility for a complaint to survive a motion to dismiss.  The Court held that the complaint sufficed. Gibson. the Court reversed. Statement of the Claim (i) Notice Pleading o A realistic phrasing of rule 8(a)(2) – “a statement of the claim showing that the pleader is entitled to relief. o Plausibility: Calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement. reasoning that the FRCP do not require a claimant to set out in detail the facts upon which he bases his claim. (ii) The Plausibility Requirement o In Bell Atlantic v. their complaint must be dismissed.  The complaint alleged numerous ways the defendant engaged in parallel conduct. and feel free to keep it short and plain if you so chose.  Under antitrust law. citing Conley and Rule 8’s notice pleading standard.” o The name reinforces the concept that the primary function of a complaint is to give the defendant notice of the claim. in violation of a federal antitrust statute. o In Twombly. and the district court should dismiss the complaint for failure to state a claim. o The Court insisted that it was not really requiring a heightened level of pleading: “We only require enough facts to state a claim to relief that is plausible on its face. but their complaint did not specifically spell out what was discriminatory about the defendant’s acts. Sorema. • The Court held that the complaint failed to meet the pleading standard of Rule 8. Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible. two consumers filed an antitrust class action alleging that the telephone companies agreed to not compete in each other’s territorial market areas for local telephone and Internet business. the defendants could only be held liable if they actually had an agreement not to compete. a plaintiff claimed discrimination based on national origin. the plaintiffs asserted employment discrimination claims.

but last week said he wouldn’t and it made 31 . the way to analyze a Rule 12(b)(6) motion is to see whether. the complaint must tell the defendant that what the lawsuit is about by stating the basic circumstances that the plaintiff asserts as a basis for the relief demanded.. so unless the plaintiff provides enough facts in the complaint to show that the key allegations are plausible. it simply does not state a valid legal claim. • The Court emphasized that although a complaint need not include detailed facts. A complaint may be inadequate because on the facts alleged. we’re not going to let the plaintiffs launch the litigation. that does not give you a valid legal claim. “Defendant used to be my friend. a complaint had better not be so “short” and “plain” that it fails to include factual. leading to a Rule 12(b)(6) dismissal. accepting all of the plaintiff’s allegations as true. The pleader in other words. Basis for Dismissing Complaint • In general. • Ex. but a plaintiff cannot rely on bare allegations of legal conclusions without alleging the facts on which those conclusions are based. 3.discriminatory purpose towards him. a plaintiff cannot simply assert conclusions such as “discriminatory purpose” without factual allegations to back up those conclusions. “So what? Even if what you say is true. it would entitle plaintiff to a judgment. Motions to Dismiss for Failure to State a Claim • Rule 12(b)(6): To argue that the complaint is insufficient.” a.  Complaints don’t have to contain a lot of actual detail as long as they state a valid claim.  The Court’s recent cases warn us not to ignore the part of 8(a)(2) about showing that the pleader is entitled to relief.  The Court held that the complaint failed to meet the Rule 8 pleading standard because the allegation of purposeful discrimination was not conclusory. a defendant makes a motion to dismiss for failure to state a claim. nonconclusory allegations to support the essential elements of the claim. • There are several ways a complaint may fail. 1. o It says to the complainant. o More than a legal conclusion. o Twombly and Iqbal convey an attitude of caution: discovery can be really expensive and burdensome. o In other words. is not entitled to relief even if the allegations are true.

• Even if a complaint gives notice of the basis for the lawsuit and even if it contains allegations about each element of the claim. A complaint may fail because the allegations fail to meet a required element of the claim. • Rule 41(b): If a court does not say whether a dismissal is with or without prejudice. If a complaint fails to allege damages or causation as require for a particular type of legal claim. The complaint may fail to meet the plausibility test of Twombly and Iqbal. as its entire statement of the claim. o All other dismissals (including failure to state a claim).” 4. unless the court states that the dismissal is without prejudice or with leave to amend or similar words. o Courts sometimes refer to this as a dismissal with leave to amend or with leave to replead. it may be dismissed if its allegation of an essential element (such as the agreement in Twombly or the purposeful discrimination element in Iqbal) is merely conclusory and the complaint does not include enough factual allegations to show why that conclusion is plausible.me very sad. then the dismissal is deemed to be with prejudice. Some courts call this a dismissal on the merits. improper venue. b. the complaint could be dismissed for failure to state a claim upon which relief could be granted.. certain dismissals – lack of jurisdiction. “Defendant is liable to plaintiff for violating section 10(b) of the SEC Act. then the plaintiff can try again by filing a new complaint.. • Ex. and failure to join an indispensable party – are presumed to be without prejudice. • Ex. 3. Dismissal With or Without Prejudice • • A dismissal with prejudice precludes the plaintiff from bringing the same claim again. A dismiss without prejudice has no claim preclusive effect. operate as adjudications upon the merits unless the court specifies otherwise. 5.  In other word. If a complaint is dismissed without prejudice. 32 .” 2. and those facts make it clear that the plaintiff’s claim cannot succeed. A complaint may fail because it alleges only a legal conclusions rather than stating the factual basis for the claim. A plaintiff’s complaint alleges. A complaint may fail because it does allege specific facts.

the defendant may assert claims of its own. waiver. and state as many separate claims or defenses regardless of consistency. Because of this rule. o Answer: May include denials and affirmative defenses. • 33 . res judicata. illegality. • Heightened Pleading Congress has enacted statutes requiring heightened pleading in certain types of cases. • Admissions and Denials The most basic response of all is the denial. Rule 8(b): A responsive pleading admits or denies each of the allegations in the complaint.4.  Also.  Any allegation that’s not denied is deemed admitted. the defendant can make a pre-answer motion. Affirmative Defenses Affirmative defenses include but are not limited to: assumption of risk. release. Z. such as a motion to dismiss for lack of jurisdiction. • • Rule 8(b)(5): A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state. fraud. or third-party claims. duress. • Inconsistent Pleading While ethical and tactical concerns limit the use of inconsistent pleadings. discharge. 2. failure of consideration. the defendant has a number of options. and several more. Rule 8(d)(2) permits a party to set forth two or more statements of a claim or defense alternately or hypothetically. o The core component of a defendant’s answer is a series of statements in which the defendant answers each paragraph of the complaint by stating whether the defendant admits or denies the allegations contained in that paragraph. cross-claims. a pleading cannot be dismissed simply because it includes allegations that are not consistent with each other. • Defendant’s Response When a defendant has been served with a complaint. 1. license. statute of limitations. whether as counterclaims. and the statement has the effect of a denial. o Alternatively. such as fraud and civil rights cases. A defendant may answer the complaint by saying that some or all of the plaintiff’s allegations are untrue. contributory negligence. and asserts the defenses to each claim. • Y. statute of frauds.

waived if not asserted. such as misnaming the defendant or missing clerk’s signature. but certain defenses may be raised by motion if the pleader so chooses. the party often can fix the problem by amending the answer. the court lacks personal jurisdiction over the defendant and will be filed with a 12(b)(2) motion as well. o In practice. then the defendant may move to dismiss for failure to join an indispensable party. so defense attorneys must think carefully about all possible affirmative defenses before filing an answer. (6) Failure to State a Claim (7) Failure to Join a Party o If a complaint fails to include a party that the defendant believes is essential to the fair resolution of the litigation. if a party fails to plead an affirmative defense in its original answer. (5) Service of Process o If served improperly. however. a defendant can 34 . b.• Affirmative defenses are waived if not pleaded. • Motions to Dismiss and Other Motions on the Pleadings Any defense may be asserted in the answer. 3. (3) Venue o Unlike SMJ. waived if not asserted. Motion for a More Definite Statement • Rule 12(e): If a complaint is unintelligible or missing critical information. a. (4) Process o Insufficient process means that something was wrong with the summons itself. Motion to Dismiss Rule 12(b) Defenses: (1) Subject Matter Jurisdiction (2) Personal Jurisdiction o Unlike SMJ.

you must include all of your defenses at the same. It can also be used by defendants as a smaller version of a 12(b)(6) motion. • Claims by Defendants In additions to the various responses defendants can make to a complaint. • If you do mess up and realize your mistake promptly enough. • Infrequently used. 35 . there are three types of claims defendants can make when they’ve been sued: counterclaims. and third-party claims. contending that certain aspects of the complaint fail to state a legally sufficient claim and therefore ought to be thrown out. It resembles a 12(b)(6) if made by a defendant. o Rule 12(g): If you bring any Rule 12 motion. redundant. or scandalous matter. c. Defendants prefer to move to dismiss under 12(b)(6). • Rule 12(c): After the pleadings are completed a party may move for judgment on the pleadings as a matter of law. Rule 12(h)(2): Ensures that indispensable party concerns can be raised later even if omitted from the defendant’s answer or pre-answer motion. • • 5. cross-claims. you may include any additional Rule 12 defense in the same motion. In general.seek refinement or explanation. save for the timing. if you make a pre-answer motion. Motion to Strike • • Rule 12(f): The defendant can move to strike portions of the complaint irrelevant. as under Rule 12(h)(1). as it allows the plaintiff to make the complaint stronger. Waiver of Defenses If a defendant files an answer without filing a pre-answer motion. Motion for Judgment on the Pleadings • • 4. the defendant must include such defenses in the answer to avoid waiving them. d. you may be able to fix the problem by amending your answer to include the omitted defense.

If a plaintiff sues multiple defendants. 12(b)(2): Motion to Dismiss for lack of PERSONAL jurisdiction. crossclaims are permitted only if they arise out of the same transaction or occurrence as the original claim. o Used to shift liability to parties who had not originally been sued by the plaintiff. • Third-Party Claim: Also known as impleader. • Crossclaim: A claim asserted against a co-party. then the thirdparty defendant should be liable to reimburse the defendant for some or all of what the defendant has to pay the plaintiff. Other than the fact that is asserted by a defendant. o Rule 14: Third-party claims may be used only for claims such as contribution or indemnification. 19: When Certain Parties are Necessary 12(b)(7): Failure to Join a Party 5) NUH UH: Denials 36 . in which one party must pay another party who was held liable. 12(b)(3): Improper Venue 12(b)(4): Service of Process Not Signed 12(b)(5): Improper Service of Process 2) SO WHAT?: 12(b)(6): Failure to State a Claim. 3) HUH? 12(e): Motion for More Definite Statement. Demurrer – moving to dismiss.• Counterclaim: A claim that the defendant asserts against the plaintiff. 12(b)(1): Lack of SUBJECT matter jurisdiction. a defendant may assert a crossclaim against a codefendant. In NY called Bill of Particulars. Not a valid legal claim or not plead adequately (Twiqbal). 4) YOU’RE MISSING SOMEONE: Have to be another party included that is inexplicably linked. o Used to impose liability on co-defendants or to shift liability to them. a counterclaim is just like a claim asserted in an original complaint and must comply with the pleading requirements of Rule 8(a). is a device by which a defendant can bring in an additional party (a third-party defendant) and assert that if the defendant is held liable to the plantiff. o Used to impose liability on the plaintiff. RECAP: DEFENDANT’S RESPONSE TO THE COMPLAINT 1) WRONG PLACE: Can’t sue me here. Under Rule 13(g).

“Defendant impleads third party. Defendant1 sues Defendant2 13(g) 3) THIRD-PARTY CLAIM: Impleader. ADDITIONAL REACTIONS 1) COUNTERCLAIM: Yeah. but not all of them. a party must ask the 37 • .” Two Reasons for Amending Pleadings 1. • • Amendment by Consent: Any pleading may be amended if the adverse party consents to the amendment in writing. o A defendant can amend an answer as a matter of course as long as you do it within 20 days. BUT…: Affirmative Defenses 8C: Lists affirmative defenses. New claim for relief.. AA. o Similarly. not negligent. we did this. but you damaged me too. • Amending the Pleadings Amendment as a Matter of Course: Often. and it is not uncommon for complex cases to have names like “Seventh Amended Complaint” or “Fourth Amended Answer and Counterclaim. but not if the case is already scheduled for trial.. if a defendant asserts a counterclaim.8(b): Answer 6) YES. Amending the pleadings permits the court to resolve the case on its merits if pretrial investigation uncovers facts that suggest additional claims or defenses 1. and counter-claim. Ex. the defendant may amend the counterclaim as long as the plaintiff has not yet served a reply.13(a) & (b) 2) CROSS-CLAIM: Arises out of the same occurrence.” 14 • *Can always move for multiple reasons. Amendment • Rule 15: Makes amending the pleadings a relatively easy process. 2. have affirmative defense. and if the opposing party won’t consent. Ex. Amendment by Leave of Court: If it’s too late to amend as a matter of course. Amending the pleadings allows the pleader to avoid the pitfalls of deficient pleading. Defendant says there is someone else responsible for my liability. o Rule 15(a): Allows a party to amend its pleading once “as a matter of course” before being served with a responsive pleading. party may amend its pleading without asking the court’s permission or the other party’s consent.

it must arise out of the same conduct or occurrence as the original pleading. that is. • • Rule 15(c)(1)(C): Governs relation back involving new parties. then the defendant cannot complain of inadequate warning to start gathering the relevant evidence. o The most problematic relation back situations involve amended pleadings that add a new party or change the name of a party. It lays out three requirements that must be met in order to get the benefit of relation back for an amendment that changes the party against whom a claim asserted. • Essentially.  2. as long as the original pleading was filed within the limitations period? • The party seeking to amend the pleading argues that the amended pleading should “relate back” to the date of the original pleading. 2. The amendment must satisfy 15(c)(1)(B). or occurrence set out – or attempted to be set out – in the original pleading. Rule 15(c)(1)(B): Relation back of a claim is permitted if the amendment asserts a claim or defense that arose out of the conduct. 38 . o If the amended pleading closely tracks the original pleading. but rather about the statute of limitations. o Rule 15(a): The court should freely give leave when justice so requires. and therefore does not violate the statute of limitations. Within the 120-day period for service of process after the original pleading was filed. 1. The party makes a motion for leave to amend the pleading. the new party must have known about the lawsuit so that it will not be at a disadvantage in defending the lawsuit.  Courts are much more grudging about applying relation back to amendments that change the name of parties.” Relation Back The hard part about amended pleadings is not really about the pleadings at all. should a party nonetheless be allowed to amend its pleadings to assert that claim.court’s permission to amend a pleading. o The question is – If a claim would be time-barred under the statute of limitations. it encourages judges to grant such motions by adding the words “freely give. transaction.

the new party “knew or should have known that the action would have been brought against it. It must be the case that within the same period. nonmonetary directives. or other paper. Sanctions and Ethical Constraints • • o If a lawyer or party violates this rule by presenting a paper with legally or factually baseless contentions. 11(b)(2). Safe Harbor Provision: Rule 11(c)(2). Is not being presented for improper purpose. 11(b)(3).3. motion. Rule 11: When you sign a pleading. • Rule 11(b): The lawyer or party may not submit a pleading or other paper without first making a reasonable inquiry into the facts and law. Factual allegations have reasonable factual basis. • If a lawyer or party violates Rule 11. motion. Under the safe harbor provision. causing unnecessary delay. 11(b)(4). Denials have reasonable factual basis. • Such as harassment. Added to address the concern that Rule 11 motions had become a tactical game in which parties engaged in finger pointing to gain the court’s favor and leverage in the litigation.” • In practice this means that if you failed to join a party within the statute of limitations. Whatever the pleader does choose to plead must have at least some basis in law and fact. a party must serve a Rule 39 • o . o The lawyer is certifying that the pleading. the court may punish the violator by imposing sanctions. or an order directing the violator to pay the other side’s legal fees or expenses. or needlessly increasing the cost of litigation. you are certifying that it is not frivolous. or other paper: 11(b)(1). you’re probably out of luck. Claims and defenses have a nonfrivolous legal basis. or when you file it or present it to the court. but for a mistake concerning the proper party’s identity. the court may impose sanctions such as a monetary penalty to be paid to the court. BB.

along with the material on which the 40 . BAD -Expensive/cost-prohibitive for certain types of cases. by category and location. -Prevents dishonesty. 3. Discovery Tools 1. Each party must provide a description.  It means that parties cannot go crying to the court every time they think the other side did something baseless. wait at least 21 days. A party seeking damages must provide a computation of each category of damages. -Narrows the issue. they file the motion with the court. • Disclosures Rule 26(a): Unlike interrogatories. 1. depositions. • Savings Clause in Rule 11(b)(3): A party can assert a factual contention without evidentiary support if the contention ‘will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. -Can result in injustice/more advantageous for financially stronger party.  So they serve the motion on the opposing party. 2. and so on. of all documents and electronically stored information that the disclosing party has and may use to support its claims or defenses. -Cuts down on private investigation. -Encourages disclosure/accuracy. the mandatory disclosure provisions require parties to disclose certain information to each other without even being asked. CC.’ DISCOVERY GOOD -Encourages settlements by bringing out more information.11 motion on the other party at least 21 days before the party may file the motion with the court. Each party must disclose the name and contact information of every witness likely to have discoverable information that the disclosing party may use to support its position. and if the challenged paper hasn’t been withdrawn or corrected.

Rule 26(a) requires expert disclosures and pretrial disclosures. the party plans to present as evidence at trial. each party provides the others with a list of witnesses the party expects to call at trial. but they occur later in the litigation process as the parties get ready for trial. then it must provide that answer unless it asserts an objection such as irrelevance. it is faster and cheaper to make the disclosure automatic rather than to require parties to plow through the request-and-response process of discovery. and summaries of any other evidence they plan to offer. privilege. qualifications. then the party must disclose the identity of that expert to the other parties. unless the parties stipulate otherwise or the court order that the number be 41 . The mandatory initial disclosures occur either at the discovery conference or within 14 days after. o If the responding party has the answer within its knowledge or control. A judge usually issues a scheduling order at a scheduling conference within 90 days after the defendant files the answer and within 120 days after filing the complaint. • • • 2.computations are based. 4. and documents. These are mandatory. along with a written report from the expert stating the expert’s opinion. and the responding party must answer in writing and under oath. the parties hold a discovery conference. o Rule 33 limits interrogatories to 25 questions.If a party plans to use an expert witness at trial. and other information. o To formulate a discovery plan. depositions. exhibits. The parties must disclose any applicable liability insurance policies. or undue burden. Expert Disclosures: Rule 26(a)(2) . • Interrogatories Rule 33: Permits each party to serve each other party with a limited number of interrogatories. • In addition to initial disclosures. Pretrial Disclosures: Rule 26(a)(3) – Shortly before trial. • The idea behind Rule 26(a) is that if basic information would be requested and provided as a matter of course in any lawsuit.

or control. Rule 30(b)(6): If you don’t know the name of a person who handle’s something you’d like to depose them about. o Any designated documents or ESI stored in any medium from which information can be obtained is subject to Rule 34 requests. Electronically Store Information. o You “notice” the deposition. this rule allows you to send a deposition notice to the company describing the topics to be addressed in the deposition. or sample” items that are in another’s possession. the lawyer can ask follow up questions. • • o Unlike an interrogatory. 3. Production of Documents. an attorney poses questions to a witness and the witness answers those questions under oath. custody. and Inspection of Land • Rule 34: Allows a party to “inspect. which gives the opposing lawyer time to phrase each answer in the least damaging way. by serving a deposition notice on the deponent altering them o the time and place of the deposition. 42 .changed. Depositions Rule 30: Each party is limited to ten depositions. and the company must identify and produce a deponent with the knowledge to speak about those topics. but like nearly all details of the discovery rules. but to depose a witness who is not a party to the lawsuit. all Rule 34 requests are about getting documents and their electronic equivalents. such as that the defendant acted negligently. 4. • In a deposition. you need a subpoena to compel the person’s attendance at the deposition. copy. test. the deposition allows you to get answers straight from the horse’s mouth. • Mostly. and Things.  • Furthermore. • Contention Interrogatories: A party can ask for all facts which support the other sides contentions. You may depose a party simply by serving notice of the deposition. these limits can be altered by stipulation or court order.

• Supplemental Responses Rule 26(e): A party who has made a disclosure under Rule 26(a) – or who has responded to an interrogatory. unless the supplemental or corrective information has otherwise been made known to the other parties during discovery. 6. o Unlike the other discovery tools. 5. request for production. and the responding party must admit. Planning and Supplementation 1.• Rule 26(b)(2): Specifically mentions that parties may refuse to provide ediscovery if the information is “not reasonably accessible because of undue burden or cost. 4) the likelihood of finding relevant. o To determine whether there is good cause the court is to look to 26(b)(2)(C). as well as 1) the specificity of the discovery request. 5) prediction as to the importance and usefulness of the further information. or request for admission – must supplement or correct its disclosure or response” upon finding new information responsive to earlier discovery requests or realizing it made a mistake. more easily accessed sources. a party must explain to the judge why a physical or mental examination is needed. • Physical and Mental Examinations Rule 35: Permits physical or mental exams only with a court order based on a showing of good cause. requests to admit narrows the issues in dispute by establishing certain facts as uncontested. deny. responsive information that cannot be obtained from other. • Requests for Admissions Requests for Admissions allow one party to ask another party to admit specific facts. Rule 26(b)(1): Sets out the basic scope of discovery and it is vast: The EE. o When used effectively. 6) the importance of the issues at stake in the litigation. Scope of Discovery • 43 . 2) the quantity of information available from other and more easily accessed sources. 3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources. DD. which can be used without making a motion to the court.” and gives the court discretion to order discovery from such inaccessible electronic sources upon a showing of good cause. and 7) the parties’ resources. or state exactly why the party cannot truthfully admit or deny.

• Rule 26(b)(1): Creates a two-tiered relevance inquiry. • For information to be discoverable it must be relevant.  So you can’t ask. not work product.starting point for thinking about discovery is that if some piece of information is relevant. If a client in auto accident case tells his lawyer that he was looking at this cell phone when he got into the crash. o Proportionality and the work product doctrine further limit the scope of discovery. Attorney-Client Privilege • Protects confidential communications between a lawyer and a client for purposes of giving or receiving legal advice or service. o It extends to oral. not the underlying facts. o Ex.  If a communications is privileged. however slight. written. on facts that have some legal consequence in the matter. Relevance The law of evidence defines relevance broadly: “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. neither the client nor the lawyer can be compelled to disclose that conversation because the communication is privileged. • Privilege just protects communications. not privileged. then that information is discoverable. 2. “What did you tell your lawyer about what happened?” 44 . allowing normal discovery to proceed for information relevant to the claims or defenses. but requiring a court order for information relevant to the subject matter (more tangential information).” o To be relevant the evidence must have some bearing.. • 1. and electronic communications. but the basic Rule 26(b)(1) standard – relevant and not privileged – should be your first step when thinking about whether certain information is subject to discovery. o It protects communications from lawyer to client as well as from client to lawyer. Privilege a. and proportional. then neither the client nor the lawyer can be forced to reveal what was said. and if it does not fall within a legally recognized privilege.

But you have no objection on grounds of attorney-client privilege when someone asks your client, “What happened?”

When a party objects, Rule 26(b)(5)(A)(ii) requires the party to prepare a description (Privilege Log), of the withheld material that without revealing information itself privileged or protected, will enable other parties to asses the claim. The Work Product Doctrine Protects lawyers enormous amounts of “work product” created for purposes of litigation and trial. In Hickman v. Taylor, the Court held that statements made by witnesses to the defense attorney in a case were not discoverable because they were the attorney’s work product. o It would be “demoralizing” the Court said for lawyers to be forced to turn over their work product to the other side, and it would discourage lawyers from doing their own work thoroughly and in writing.

3. • •

Added, and modified to the FRCP in Rule 26(b)(3): Defines the protected materials as “documents and other tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.” o So, a lawyer doesn’t need to turn over witness statements or describe what each witness said, but the lawyer cannot refuse to answer interrogatories about facts related to the issue, even if it comes from those interviews.

Work product only has qualified protection, not absolute protection. Materials that fall within the definition of work product may still be discoverable if they are relevant and not privileged, and if the requesting party has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. Expert Witnesses: Rule 26(b)(4) draws a sharp distinction between testifying and nontestifying experts. o One may depose any testifying expert, but it is much tougher to get discovery from a nontestifying expert.  Unless it would be practically impossible for the requesting party to obtain facts or opinions on the same subject matter by other means, the nontestifying expert’s opinions are not 45

discoverable. 4. • • Proportionality The burden of discovery should not be disproportionate to its benefit. Rule 26(b)(2)(C): Instructs judges to “limit the frequency or extent of discovery” based on this idea of proportionality. o If the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive, the judge must disallow the unwarranted discovery. • The more drastic version of proportionality comes in a subsection of Rule 26(b)(2)(C) that tells the court to limit discovery if ‘the burden or expense of the proposed discovery outweighs its likely benefit.’ o Based on this subsection, information may be nondiscoverable even if it is relevant and not privileged. Proportionality functions as an important limit on the general scope of discovery as announced in Rule 26(b)(1). o Judges must do a cost-benefit analysis that considers not only the burden of discovery, but also the amount at stake in the lawsuit and the importance of the discovery in resolving the issues.  Hard-to-reach information may not be worth the trouble if the case is small and the information tangential, but if the stakes are high and the hard-to-reach information is key, a court will allow discovery even if it is quite burdensome.

FF. Discovery Enforcement
• • When there are objections to discovery requests, the lawyers confer with each other to try and work out their differences. When they cannot resolve their problems, motions to compel, motions for protective orders, and discovery sanctions come in handy.

D. 1 A Walk Through Discovery Procession…
We Have a Discovery Request…What are the Various Options for the Responder? • Motion for a Protective Order – Rule 26(c). BUT, before you can move for a protective order you have to • Confer with the other side regarding the request. • Object. 46

• •

Provide the Information. Fail to Respond/Refuse to Answer without a Specific Objection. Do not do this.

The Responder Objects…What are the Various Options for the Requester? • Confer with the other side, regarding the reasons for objections. • Motion to Compel – Rule 37. BUT, before you move, you must confer with the other side. • Narrow/Withdraw Request in response to objection. The Responder Moves for a Protective Order…What are the Various Options for Requester? • Litigate the Motion by submitting brief in opposition to the order. • (File a Motion to Compel as a competing motion). • Narrow/Withdraw Request. • Confer to figure out a way to work out some agreement to get the documents. The Requester Moves to Compel…What are the Various Options for the Responder? • Litigate the Motion by submitting brief in opposition to the order. • (File a Motion to Protect as a competing motion). • Confer with otherside to discuss narrowing request. o The best way to handle discovery disputes, what judges hope happen, is that the parties handle it themselves. • Provide the Request. 1. • Motions to Compel and for Protective Orders Motion to Compel: When another party fails to comply with a discovery request, the requesting party may file a motion to compel. o A motion to compel asks the court to order the other party to provide discovery. o Governed by Rule 37. • Motion for Protective Order: The responding party to a discovery request asks the court to order that certain discovery not be had or to order some other constraint on discovery. o Rule 26(c) permits a party or any person from whom discovery is sought to move for a protective order. The court is empowered to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.

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prohibiting the disobedient party from making particular assertions or from using certain pieces of evidence. JOINDER • To understand when litigants may or must join additional claims or parties. o These rules establish procedural mechanisms for joining more than one claim in a lawsuit (joinder of claims). Discovery Sanctions If a party fails to disclose required information such as the names of witnesses or descriptions of relevant documents. you need to understand both when you may join additional claims or parties in a lawsuit (permissive joinder) and when you must do so (compulsory joinder). or makes unwarranted objections to document requests. and contempt of court. or refuses to answer certain questions at a deposition. default judgment.” 37(b) lists more severe discovery sanctions for parties who fail to comply with a court order.• Protective orders also can serve to protect the confidentiality of discovery materials so that even if it is subject to discovery. • Permissive Joinder of Claims Permissive Joinder of Claims: A plaintiff may assert multiple claims 48 .  If the court grants the motion to compel.  As a lawyer. staying the proceedings. Joinder of Claims 1. at a hearing. striking pleadings in whole or in party. 2. unless the failure was substantially justified or is harmless. the requesting party may not move for sanctions. or at a trial. then a Rule 37 motion for sanctions is proper. dismissal. it may be kept confidential and not revealed outside of the litigation. • • • Rule 37(b) lists punishments for a court to consider imposing: directing that certain facts be taken as established for purposes of the action. Rule 37(c) imposes an appropriate punishment: “ the party is not allowed to use that information or witness to supply evidence on a motion. as well as for joining additional parties (joinder of parties). and the responding party violates the order. o When a party responds to interrogatories incompletely or evasively. but move to compel. we look to the rules of joinder. GG.

crossclaim. as the best defense is sometimes good offense. o “A party asserting a claim. a. 49 . Compulsory Counterclaims • Rule 13(a): A pleading must state as a counterclaim any claim that – at the time of its service – the pleader has against an opposing party if the claim: (a) arises out of the transaction or occurrence that is the subject matter of the opposing part’s claim. as many claims. as a counterclaim. a reflection of the thinking that. o Mirrors the reasoning in Rule 18(a)’s unlimited permissive joinder of claims. then the defendant party must assert it as a counterclaim. o The word must is what makes this a rule of compulsory counterclaims. any claim that the defendant has against the plaintiff. as long as they are in litigation. even if it is completely unrelated to the plaintiff’s claim. o What makes it compulsory is claim preclusion. • Rule 42(b): Judge can bifurcate the trial of the claims for case management issues always.against a defendant in one complaint. and (b) does not require adding another party over whom the court cannot acquire jurisdiction. • If the claim arises out of the same transaction or occurrence. But you may want to withhold the claim if you’re unhappy with the forum or timing. they may as well be allowed to assert whatever claims they have against each other at the same time. Counterclaims The rules provide for permissive counterclaims in Rule 13(b) and compulsory counterclaims in Rule 13(a). as it has against an opposing party. or third-party claim may join. • 2.”  Permissive joinder of claims are unlimited. Permissive Counterclaims • Rule 13(b): A defendant may assert. • Rule 18(a): Permits joinder of claims even if the claims are utterly unrelated.  Can provide good leverage in settlement negotiations. counterclaim. as independent or alternate claims. b.

Permissive Party Joinder • • Rule 20(a) makes it relatively easy to join parties. co-plaintiffs may assert crossclaims against each other. it is unimaginable that the second part wouldn’t be. occurrence. then the party will be precluded from asserting the claim later in a separate suit. creating an additional layer of complexity that is thought to outweigh the cost of efficiency when the crossclaims are unrelated to the same transaction. • • • Similarly. • • 13(a) compulsory counterclaims enhances efficiency. In the case of co-defendants. How come co-parties may assert crossclaims only if they arise out of the same transaction? o Crossclaims create an additional axis of adversariness. but when doing your 20(a) analysis still point out (1) the transaction or occurrence that gave rise to the claims by or against the various 50 . consistency. Rule 20(a)(1) explains when multiple plaintiffs may sue together: 1. as long as the claims by or against them rise out of the same underlying circumstances. When they assert relief arising out of the same transaction. or series and 2. and finality (more on theses values in Preclusion). • If the first part is satisfied. then the other defendant should have to pay the damages. crossclaims often involve claims for contribution or indemnification. Crossclaims Rule 13(g): Permits crossclaims amongst co-parties as long as they are transactionally related to the claims already asserted in the action. The federal rules treat crossclaims as purely permissive. HH. If the defending party fails to assert the transactionally related claim as a counterclaim. • 3. but procedurally the third-party claim is used to bring in someone who has not already been made a party to the lawsuit. o This type of crossclaim among co-defendants substantively resembles a third-party claim under Rule 14. in which one defendant asserts that if it is held liable the plaintiff. A common question of law or fact will arise in the action.

because the plaintiffs’ claims – some for race discrimination. or nonpromotion. and (2) at least one common question that will arise with regard to each of the parties. Courts often describe it as a “logical relationship” test: o Are the claims by or against the parties closely enough related that it makes sense to package them together for trial? • Framing the Issue: In Mosely v.  The district court viewed the “transaction or occurrence” as each individual plaintiff’s termination. the district court granted defendants motion to sever. Permissive joinder not only allows multiple plaintiffs to sue together. so they satisfied the test for joinder under Rule 20. others gender discrimination – were too varied. as long as they satisfy the two-part test. whereas the court of appeals viewed the “transaction or occurrence” as the alleged companywide policy.parties. • Rule 20 does not place any cap on the number of parties who can be joined. nonhiring.. the court may – (1) join for hearing or trial any or all matters at issue in • • 51 . • Determining whether claims arise out of the same transaction or occurrence can be trickier than it seems. Consolidation: Rule 42(a) empowers a court to bring multiple cases together for a joint trial or other joint proceedings: “If actions before the court involve a common question of law or fact. but also allows plaintiffs to sue multiple defendants. so permissive joinder of plaintiffs can be massive. o The court of appeals reversed. General Motors Corp. and multi-defendant cases are very common. stating that all of the plaintiffs alleged a companywide policy of discrimination.

that even if a party is properly joined under the rule. or even of separate issues. • Rule 19 establishes a two-step process for analyzing compulsory party joinder. “for convenience. crossclaims. in the person’s absence. the court can order the person to be joined. 2. (2) consolidate the actions. counterclaims.” Rule 20(b) reminds the court. Whether a person must be joined. • Keep in mind that compulsory party joinder under the federal rules is 52 . third-party claims.  But. but cannot be joined because of the court’s jurisdictional limits? Then ask…. the lawsuit should be dismissed. to avoid prejudice.” o The minimal requirement leaves the consolidation decision almost entirely to the court’s discretion. Whether the person is so critical to the lawsuit that. in the context of permissive party joinder. II. o If so. what if the person is a required party under Rule 19(a). o The rule also offers guidelines for determining whether a case should be dismissed if such a required party cannot be joined.the actions. the court retains the power to order separate trials. • Separation: Under 42(b). or to expedite and economize. o For consolidation however. • Compulsory Party Joinder Compulsory Party Joinder Rule dictates who must be joined in an action and empowers the court to order joinder of such a required party. 1.a court may order separate trials of any claims. • This is often referred to as whether the person is a required party or necessary party under Rule 19(a). all actions must be pending in the same court. • o Judges have significant discretion to consolidate actions that were brought separately or to separate claims that were brought in a single action.

but they disagree over the application of the seniority rule. the court cannot accord complete relief among existing parties. Employees Andy and Benny work for Carvel and seek the same promotion. the action may impair Benny’s ability to protect that interest. so it is best to understand it within this hypothetical. Their contracts say the promotion is based on seniority.. As long as one is satisfied the person is a required party. • • Required parties are those who are so inextricably linked to the case that their absence could create real problems. because 53 .” • Benny certainly claims an interest relating to the subject of the action – the promotion.” • Because Andy seeks injunctive relief and the promotion is a single position that can’t be held by both Benny and Andy. The rules spells out three circumstances under which a person will be deemed a required party. impair or impede the person’s ability to protect the interest. may be aligned either as a plaintiff or as a defendant. 1. so do not read it too expansively. Andy cannot get complete relief unless Benny is bound by a ruling that the promotion belongs to Andy. o Ex. Andy claims he is entitled to the promotion. but the company says its obligated to give the promotion to Benny. depending on the circumstances. • Required Parties Rule 19(a): Persons required to be joined if feasible and instructs the court to order their joinder. o A required party. which can only be given to one of them. but this example arguably satisfies all three. Carvel moves for an order that Benny must be joined as a required party under Rule 19(a). o And as a practical matter.  Rule 19(a)(1)(A): Requires joinder if “in that person’s absence. Andy sues Carvel. seeking injunctive relief to obtain the promotion.very narrow. as a practical matter.  Rule 19(a)(1)(B)(i): Requires joinder if “that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may.

so Benny is not legally bound by the judgment. o Rather it means the type of impossible situation in which a party may be ordered to do X and also to not do X. or multiple victims of a civil rights violation. o The two judgments would place Carvel in an untenable position. not Andy. Benny brings a separate lawsuit and obtains a judgment ordering Carvel to give the position to Benny.  Rule 19(a)(1)(B)(ii): Requires joinder if “that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may leave an existing party subject to a substantial risk of incurring double. Benny was not a party to the lawsuit.if the court rules that Andy is entitled to the promotion. unless under Rule 19(a) they meet the test for required parties. while the other told Carvel to give the position to Benny. • Multiple victims injured by a defendant’s negligence are not required parties in each other’s lawsuits. • Suppose the case goes forward without joining Benny and the court orders the employer to give Andy the job. • Inconsistent doesn’t mean if for instance. there is a significant risk the company will remove Benny from the position. 54 . disposing of the action in Benny’s absence would leave Carvel subject to a substantial risk of inconsistent obligations. or multiple investors who lost money on securities based on an issuer’s misrepresentation. or otherwise inconsistent obligations because of the interest. but that’s permissive joinder and up to them. One judge told Carvel to give the single position to Andy. and so on. multiple.  May they bring their claims in a single action against the defendant? Sure. o Nor are multiple consumers defrauded by a business. Andy wins in a suit for employment discrimination and Benny doesn’t.  In the language of Rule 19(a)(1)(B)(ii).

but cannot be joined because of the jurisdictional barrier (we must. Synthes. Similarly. the Court set forth a clear rule: joint tortfeasors are not required parties.”  It forces the judge to make a hard decision . if the court can minimize the prejudicial impact by awarding money damages instead of injunctive relief.would it be better to go forward with the case to do at least some justice. Indispensable Parties If a court finds that a person is a required party. then the court cannot order the party be joined.  • If the absent party is needed under the Rule 19(a) analysis. the action should proceed among the existing parties or should be dismissed. then dismissal may be unwarranted. but we can’t). But what happens when a required party cannot be joined? o There are two reasons why it might be impossible to join an otherwise required party in federal court: personal jurisdiction and subject matter jurisdiction. then joinder is impossible.  Recall Rule 4(k)(1)(B) expands a federal court’s jurisdictional reach for joining parties under Rule 19. • In Temple v. if subject matter jurisdiction is based on diversity of citizenship and joinder of the party would destroy complete diversity. (3) Would a judgment rendered in the person’s absence be adequate? 55 . or would it be so unjust to proceed in the party’s absence that it’s better not to adjudicate at all? • Rule 19(b) lists four factors for the court to consider: (1) To what extent might a judgment be prejudicial to the parties or to the absent person? (2) To what extent can relief be shaped to avoid prejudice? o Ex. in equity and good conscience.• 2. the court may order that person be joined. But if a party cannot be served within 100 miles of the court and otherwise is not subject to the court’s personal jurisdiction. o Rule 19(b) instructs the court to “determine whether.. the court’s choices are to go forward without the required party or to dismiss the action.

(4) Would the plaintiff have an adequate remedy if the action is dismissed? o Dismissal may be the right option if the plaintiff can bring the action in a different forum. then it may make little sense to proceed in the person’s absence. then joinder is feasible. The court may 56 . then the person need not be joined. determine whether the absentee is a required party. is complete relief impossible among those already parties? o 19(a)(1)(B)(i): If the case proceeds without the person. can all parties be joined in state court? If the obstacle was personal jurisdiction. o Would the court retain subject matter jurisdiction if the person were joined? Apply the diversity jurisdiction analysis to determine whether joinder would destroy complete diversity. would a judgment impair the absentee’s interests? o 19(a)(1)(B)(ii): If the case proceeds without the person. o Does the court have personal jurisdiction over the person? Apply the jurisdictional analysis. then proceed to determine whether joinder is feasible.o If the judgment would not provide the relief sought.  If the answer to both of these questions is yes. can all of the parties be joined in a different state?  If so. (Rule 19(a)) o 19(a)(1)(A): If the case proceeds without the person. Keep in mind the extended reach of federal courts over Rule 19 parties pursuant to Rule 4(k)(1)(B). o If the obstacle to joinder was diversity jurisdiction. then the person is a required party and must be joined if feasible  If the absentee is required. and the party must be joined. If the answer to any of them is yes. is there a substantial risk of inconsistent obligations?   • If the answer to these three questions is no. then the court may dismiss so that all of the required parties may be joined in a single action elsewhere. Compulsory Party Joinder Analysis • First.

then joinder is not feasible. with intervention it’s the outsider who wants to jump in. o Often referred to as impleader – the defendant impleads a thirdparty defendant.order joinder if needed. Whereas counterclaims and crossclaims involve only joinder of claims. the person desires to be part of the lawsuit and therefore intervenes in the action. does it make more sense to proceed without the absentee. as third-party plaintiff. (Rule 19(b)) o In the interests of justice and equity. or not to proceed at all? o Four factors:     Extent of prejudice to parties and absentee. Whether judgment would be adequate. a defendant joins a new party – the third-party defendant – and asserts a claim against that party for indemnification or contribution in case the defendant is held liable to the original plaintiff. and the party may not be joined. the third-party claim constitutes a type of party joinder because it adds a new party to the litigation. serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. Possibility of minimizing prejudice. • Rule 14: A defending party may. Intervention • • Unlike with required parties. • Third-Party Claims With a third-party claim.  If the answer to either of them is no. then proceed to determine whether the action should be dismissed. 57 . • KK. JJ. Intervention is the procedural mechanism by which someone seeks to become a party to an action that has already commenced. The court then must decide what to do  • If the party cannot be joined. where it’s the defendant who drags the outsider into the litigation. Whether plaintiff would have remedy if dismissed. o Although the plaintiff did not join the person as a plaintiff or as a defendant.

a. the rule grants a right to intervene when the applicant “claims an interest relating to the property or transaction that is the subject of the action. If a federal statute grants the right to intervene. o For Rule 19 it’s an outsider whose interest is at stake and who therefore must be joined if feasible. • Courts usefully describe Rule 24(a)(2) as establishing a three-part test: (1) an interest in the action. permissive intervention 58 . With Rule 24. then it is up to the court whether to permit the party to intervene. o The intervenor’s interest must be a legally protectable interest – often. and permissive party joinder which refers to the party’s discretion. and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest. then a court must allow the party to intervene. o If the would-be intervenor satisfies Rule 24(b). joinder of claims. Rule 24 divides intervention into intervention of right and permissive intervention. (2) a risk that the action may impair or impede that interest. o If a would-be intervenor satisfies the requirements for intervention of right under Rule 24(a). then of course the court must allow intervention in accordance with the terms of the statute. b. and (3) no current party who adequately protects that interest. • Intervention of Right Rule 24 lists two bases for the right to intervene. 2. outsiders to a lawsuit would want to jump in if they have some substantial interest that may be harmed by the outcome of the litigation and they cannot trust any of the current parties to protect their interest. unless existing parties adequately represent that interest. and who therefore must be allowed to intervene. but not always an economic interest of some sort – and not merely a moral or political concern about the issues in the lawsuit. it’s an outsider whose interest is at stake. More importantly.• Mostly. • Permissive Intervention Unlike permissive counterclaims. • 1. “ • Similar to “required party” language.

• Timeliness Rule 24 does not specify the time limit for applying to intervene. to whom. 3. • 59 . Rule Interpleader Rule 22: Rule interpleader is the FRCP rule that simply establishes a procedural mechanism for interpleader in federal court. Interpleader provides the procedural mechanism by which the stakeholder can bring an action against the claimants and thereby obtain a judgment that will be binding on all of them. Interpleader • Interpleader: An action brought by a stakeholder against multiple claimants to allow a stakeholder to obtain a resolution that will bind all of the known claimants. 1. o It is used when someone (the stakeholder) is holding something (the stake) that others (the claimants) claim.  It could be an insurance company holding the proceeds of an insurance policy and facing multiple persons claiming to be the legitimate beneficiary. o Instead Rules 24(a) and 24(b) each begin with “On timely motion…”  So. which is noteworthy since dozens of other ultra-specific time limits exist in the FRCP. • Under Rule 24(b). LL.” o Similar to Rule 42(a)’s requirement for consolidation:  Both permissive intervention and consolidation set up this bare minimum requirement and then leave the court wide discretion to decide whether it would make sense to consolidate or let another party join the action by intervening.refers to when a court may permit intervention at the court’s discretion. a court may permit a person to intervene in an action when an applicant “has a claim or defense that shares with the main action a common question of law or fact. once you realize that intervention is warranted be sure to file the application promptly. and if so. • • The stakeholder needs to know whether it must give the stake to one of the claimants.

28 U. In most money damages cases. o When a class action reaches judgment. 60 . § 1397 permits a statutory interpleader action to be brought in any district where at least one claimant resides. o By reducing the jurisdictional obstacles to through joinder.000 to $500 and instead of requiring complete diversity between plaintiffs and defendants. § 1335 alters the requirements for federal subject matter jurisdiction from $75. Settlement of a class action requires court approval. 2. consent and participation in civil procedure? • • Efficiency. § 2361 grants nationwide personal jurisdiction for statutory interpleader.C. 3.C.C. statutory interpleader tries to make good on the promise of the interpleader device – to allow a stakeholder to obtain a resolution that will bind all of the known claimants.S. • Statutory Interpleader 28 U. and empowerment.2. • A Different Kind of Joinder Class actions are representative litigation. the law imposes a number of special procedures to protect the interests of class members. In a class action. The court has the power to appoint the lawyer for the class and the court has power over the class counsel’s fees. Also. A case does not proceed as a class action unless the court certifies the class. class members get notice and have the right to opt out of the class action. Class Actions 1. • • MM. a party sues on behalf of himself and on behalf of all others who are similarly situated. 28 U. 4. the judgment is binding on all the class members so long as they were adequately represented. it requires only minimal diversity among the claimants themselves (one claimant of diverse citizenship from another). 1.S. Because class actions bind persons who may not have participated in the litigation. consistency.S.  Why would the law allow such a thing that runs contrary to all of our usual notions of autonomy.

o This is the same requirement for permissive joinder under Rule 20. Numerosity: Rule 23(a)(1) requires that the number of class members be so large that joinder is impracticable. and adequate representation. 2. The adequacy requirement transcends Rule 23. a class action would 61 • o .  In most class actions. • • • Rule 23(a) Prerequisites Filing a class action complaint does not create a class action. • Typicality: Rule 23(a)(3) requires that the named party’s claim be typical of the class. it merely creates a “putative class action” that the plaintiff hopes will be certified. a class action must meet all four of the prerequisites stated in Rule 23(a): numerosity. the judge must decide whether the case meets the class certification requirements of Rules 23(a) and 23(b). The class representative should not be an outlier. When a party moves to certify the class. commonality. • o While no magic number exists. in general classes in the hundreds usually meet the numerosity requirement. • Commonality: Rule 23(a)(2) requires at least one common question of law or fact. the commonality requirement should be easy to meet. A class action is binding on the class members only if they were adequately represented.5. while classes below 40 rarely meet the requirement. The only thing that creates a class action is class certification. the class representative or representatives must adequately represent the interests of the entire class.  Without adequate representation. o For class certification.  In addition class certification requires that the class meet the requirements of at least one of the class action categories identified in Rule 23(b). Adequacy of Representation: Rule 23(a)(4) is the most fundamental requirement of them all. For class certification. typicality.

Lee. A company has issued a bond owned by thousands of investors. the Court held that a class action judgment can bind the members of the class consistent with due process.. only if they were adequately represented.  • 23(b)(1)(A) class action permits a single adjudication or settlement that applies to all the investors who own that security. while (b) (1) and (b)(2) class actions do not permit opt-outs and carry a more flexible notice provision. class actions under Rule 23(b)(1) and 23(b)(2) are sometimes called mandatory class actions. • In the landmark case of Hansberry v. Rule 23(b)(1) Class Actions • Actually includes two subcategories of class actions. Without a class action. It makes no sense to address the issue individually. individual adjudications for some of the claimants would limit the amount of money left for the remaining claimants and might even exhaust all funds. has a large number of individuals with claims to money held in a trust. the company could face inconsistent rulings and wouldn’t know how to treat the security. o The typical (b)(1)(B) class action involves a limited fund.violate the constitutional guarantee of due process. that for example. 3. and an investor sues the company for a declaratory judgment that the bond may be converted to common stock. and the maximum amount available for all of the claims is the amount in the trust. Rule 23(b)(1)(B) permits class certification if individual adjudications might impair the ability of other class members to protect their own interests. • Rule 23(b)(1)(A) permits class certification if individual adjudications would create a risk of “incompatible standards of conduct” for the defendant. but also because different procedural requirements attach to them. then it must be so for all investors.  Because they do not allow opt-outs. (b)(1)(A) and (b)(1)(B). a. 62 . o The main thing they have in common is that their language and logic strongly resemble the compulsory party joinder analysis of Rule 19(a). • Rule 23(b) Categories The categories are significant not only for class certification. o Ex. AS a practical matter. because if the security is convertible to common stock. in contrast to Rule 23(b)(3)’s opt-out class actions. o In particular Rule 23(b)(3) class actions have a stringent notice requirement and give class members the right to opt out.

class actions for money damages – whether they involve antitrust. consumer fraud. Rule 23(b)(3) adds the two requirements that define this category: predominance and superiority. Most notably. emphasizing that they may be certified only if the fund is clearly inadequate and the entire fund is applied to paying the claims. civil rights class actions seek prison reform. 2. but they disagree about how to determine when money damages become too prominent to be permissible. and other types of institutional reform. the class must seek predominantly injunctive or declaratory relief. Rule 23(b)(2) Class Actions • Some class actions seek injunctive or declaratory relief rather than money damages. o If each claim involves high enough stakes that individual class 63 . school desegregation. o For the most part. The Court must find that a “class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Rule 23(b)(3) Class Actions • Rule 23(b)(3) permits a class action if common questions predominate and if the court finds that a class action is the superior way to adjudicate the controversy.” • Common questions often involve the defendant’s conduct and classwide defenses. 1. The Court must find that “questions of law or fact common to class members predominate over any questions involving only individual members. b. • • c. while individual questions often relate to the individual class member’s causation and damages as well as individual defenses such as comparative fault. • Because money damages class actions seem less necessary than (b)(1) and (b)(2) class actions. Rule 23(b)(2) permits certification of a class action when the defendant has acted with respect to the entire class so that injunctive or declaratory relief is “appropriate respecting the class as a whole. securities. voting rights enforcement. or other claims – are handled under Rule 23(b)(3).” Courts agree that for 23(b)(2) class certification. product liability.” • One important factor is the “class members’ interests in individually controlling” their cases. In 1999. the Court imposed strict requirements for limited fund class actions. • The 23(b)(1)(B) class action permits a single adjudication or settlement that attempts to deal fairly and consistently with all of the claimants.

• Further. • Remember that unlike (b)(1) and (b)(2) class actions. o Ex. o Plenty of class actions arise under federal law – such as securities. under § 1332(a). • The predominance and superiority inquiries often overlap. and civil rights . If the class action would require the court to apply the laws of different states to different class members.” 4. diversity is satisfied. and the court may also find that applying the various laws would be unmanageable and thus a class action is not superior. the court can exercise supplemental jurisdiction over those claims. Rule 23(b)(3) class actions give class members the right to exclude themselves from the class. a court is less likely to find superiority. or “opt-out. the analysis is identical to nonclass cases.000 amount-in-controversy requirement. o For other class members that do not. the court may find that the various laws are individual issues and thus reject predominance. Subject Matter Jurisdiction • For federal question jurisdiction. the court may find the common issues do not predominate. under § 1332 (a). o Ex.and for those cases federal courts possess subject matter jurisdiction under § 1331.’ • If the court cannot see how it will be able to manage the case if it gets to trial. as long as none of the named representatives are citizens of NY. 64 .. not every single class member. courts look only at the citizenship of the named class representatives. o In a nationwide suit against a New York defendant. at least one class representative must individually meet the $75. in contrast to cases where each claim is too small to make an economically viable individual lawsuit. and also find that the individual causation analysis makes the class action an inferior way to handle the dispute. if the class would require individualized determinations of causation. antitrust.members might pursue the claims themselves. then the court may reject class certification..  The rule also instructs courts to consider ‘the likely difficulties in managing a class action. • For basic diversity. Jurisdiction in Class Actions a.

permitting federal jurisdiction over class actions based on minimal diversity and over $5 million aggregate amount in controversy (rather than over $75. even though they did not agree to it. o Rather a court may enter a judgment that binds absent class members as long as certain due process requirements are met: notice and an opportunity to be heard.000 for each individual). Therefore. Shutts. unlike most settlements which usually require only the parties’ agreement. in cases known as settlement class actions or settlement-only class actions.” o Class members must get reasonable notice of the proposed settlement. the Court reasoned that because class members are similar. including the class members. 5. reasonable. the right to opt out. • Rule 23(e) requires that the court hold a hearing to determine whether the proposed settlement is “fair.  This ruling enables courts to resolve nationwide class actions without worrying about whether every class member has minimum contacts with the state. the minimum contacts test does not apply. adequate representation. Personal Jurisdiction • In Phillips Petroleum v. but not identical to ordinary defendants for purposes of personal jurisdiction.• The Class Action Fairness Act (CAFA) dramatically expanded federal court jurisdiction over class actions. b. and of course. • In some cases. Class Action Settlements • Class action settlements require courts approval. • An approved class action settlement is binding on all of the parties. the class action rule gives the judge the responsibility to protect the interests of absent class members in the settlement. and they may voice any objections. that outcome becomes a judgment of the court. • The absent class members will be bound by a settlement. and adequate.  When the court approves a proposed class action settlement. o The parties ask the court to certify a class action solely for 65 . the parties negotiate a settlement even before seeking class certification.

as a matter of law. Get the Lingo Right: o Burden of Persuasion: For trial purposes. 1. no reasonable jury could find for the defendant. otherwise as a matter of law. and that party has to produce evidence sufficient to meet each element of the claim. It must be enough so that a reasonable jury could find in plaintiff’s favor. 66 • • • . Summary Judgment • Summary Judgment allows a court to decide a case before trial based on a determination. they ask the court to approve the class settlement they negotiated but only if the class is certified. • The Summary Judgment Standard Rule 56(c): “The judgment sought should be rendered if the pleadings. the plaintiff bears the burden of persuasion as to each element of the claim. and disclosure materials on file.purposes of the settlement they already negotiated.  They arise when a defendant faces widespread potential liability and seeks to dispose of the entire dispute within a single massive settlement. the plaintiff must be able to establish every element of the claim and show that if the case were to go to trial. we are talking about Burden of Production. o Burden of Production: For Summary Judgment purposes. For a defendant to win summary judgment. o Simultaneously. a court may approve the settlement class action. The burden also belongs to the plaintiff. the defendant must show that the plaintiff does not have sufficient evidence to raise a genuine issue as to any element of the claim. and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law. For a plaintiff to win summary judgment. that only one side could reasonably prevail. the plaintiff loses. the discovery. SUMMARY JUDGMENT AND PRETRIAL ADJUDICATION NN. • As long as the settlement class action is fair under Rule 23(e) and the court finds the class meets the requirements of Rule 23(a) and 23(b) for class certification.

plus attachments to show why summary judgment should not be granted. it could have been another company’s product. contains the legal argument in favor of granting the motion.  The Court decided that the defendant need only point out the plaintiff’s lack of evidence. 2. Catrett. showing a lack of genuine issue is quite hard – the defendant must show that the plaintiff’s evidence is so utterly lacking that no reasonable jury could find for the plaintiff on that element of the claim.o In this sense. The notice of motion notifies the court and other parties that the movant seeks summary judgment. o Plaintiff argued that the defendant had not proved that Mr. a. o But in another sense.a. • • Summary Judgment Motion Practice The party moving for summary judgment must file the motion with the court and serve the motion on the other parties. because the plaintiff bears a burden of production: that is. the moving party almost always includes attachments. Celotex argued that there was no evidence that the plaintiff’s husband was exposed to their asbestos. this is easy – the defendant need only show plaintiff’s failure as to a single element of the claim. even if he died because of asbestos exposure. and the court may hold a hearing for oral argument on the motion. o The nonmoving party responds with a memorandum of law in opposition to summary judgment. in other words. And along with the motion and brief. the brief.. o Celotex moved for summary judgment and attached a copy of an interrogatory that asked the plaintiff to identify any evidence that her husband was exposed to Celotex asbestos and plaintiff’s response failed to name any witnesses or other evidence. there was a genuine issue of material fact. the burden of producing enough evidence so that a reasonable jury could find in the plaintiff’s favor. Catrett was not exposed to Celotex asbestos and therefore. The memorandum of law.  The moving party may submit a reply brief. v.k. • • Courts deciding summary judgment cases often talk about viewing the evidence “in the light most favorable to the nonmoving party. 67 . pieces of evidence to show why the court should grant the motion.” In Celotex Corp.

• Partial Summary Judgment If certain parts of claims or defenses are established or rejected clearly enough to meet the summary judgment standard. even if there is a genuine issue on the amount of damages. Rule 56(d)(1) instructs judges that if “summary judgment is not rendered o the whole action.” o The summary judgment motion says to the judge. a defendant can move for summary judgment for the punitive damages issue.• Unlike a Rule 12(b)(6) motion to dismiss for failure to state a claim. • 2. if summary judgment found the defendant liable. but not the compensatory damages issue. Rule 56(a) and (b) state that a party may move for summary judgment “on all or part of the claim. the court may grant partial summary judgment on those issues. Rule 56(d)(2) permits a court to grant summary judgment “on liability alone.” the judge should. Summary judgment may reduce the number of factual issues for trial. o The Rule 12(b)(6) motion says to the judge.” • Ex. the 68 • . “the other party has not stated a legally valid claim (or defense).” • For instance. o Cross-motions for summary judgment present the possibility that the judge may decide the case either way as a matter of law. A party responding to a summary judgment motion has one additional weapon to consider – the cross motion for summary judgment.. There are three basic versions of partial summary judgment: 1. the Court spoke of summary judgment “after adequate time for discovery. Just look at the pleadings and you’ll see that we have to win. “to the extent practicable. Just look at the evidence and you’ll see that we have to win. “The other party does not have the evidence to establish its claim (or defense).” and judges do not like to grant summary judgment before the nonmoving party has had enough opportunity to gather information. even if it does not fully resolve any claims. • 3. summary judgment looks at evidence.” • In Celotex. 3. determine what material facts are not genuinely at issue.

OO. The court clerk “enters” the default. default involves a two-step process. it is with prejudice. the plaintiff voluntarily dismisses the lawsuit. 1. so that plaintiff may then refile the same claim without a problem. Voluntary Dismissal • Voluntary dismissal is exactly what it sounds like. the plaintiff requests a default judgment by applying either to the court clerk or to the judge. Under Rule 55. PP. the court will grant judgment in favor of the plaintiff.case would then proceed to trial only to dispute the extent of the plaintiff’s harm and the jury would render a verdict on the amount of damages. precluding the party from bringing the claim a third time. 2. • If the plaintiff decides for a second time to voluntary dismiss his case. After the entry of default. which is basically an administrative notation that the defendant has failed to plead or otherwise defend. The clerk enters the default judgment at the plaintiff’s request.” PRETRIAL ADJUDICATION PROCEDURAL DEVICE/BASIS FRCP 69 . • Rule 41 declares that the first voluntary dismissal is without prejudice. in other words default. only if the amount of damages is a “sum certain or sum that can be made certain by computation. Default • • If the defendant fails to move forward.

Adjudication on the Pleadings Pre.Answer Motion to Dismiss Lack of subject matter jurisdiction Lack of personal jurisdiction Improper venue Insufficient process Insufficient service of process Failure to state a claim Failure to join a party Forum non conveniens Motion for judgment on the pleadings Summary judgment Voluntary dismissal Involuntary dismissal Noncompliance with rule or order Default judgment Adjudication as Punishment Default or dismissal as an extreme sanction for baseless or improper assertions Default or dismissal as an extreme discovery sanction 11 37 41(b) 55 12(c) 56 41(a) 12(b) 12(b)(1) 12(b)(2) 12(b)(3) 12(b)(4) 12(b)(5) 12(b)(6) 12(b)(7). 19 DISPUTE RESOLUTION 70 .

one party files a lawsuit and there are statutes in some courts that allow the court to pull in a jury that is used for a “mock jury. uses non-expert decision making (have to know a lot of areas of law at large) • Litigation that results in adjudication tends to be a winner take all situation (which is not usually the best situation). Similar to mediation. a shortened version of the case. BUT the arbitrator decides the dispute. and get an arbitrator that is an expert in this area. Avoids costs of litigation. One pretrial conference purpose is to facilitate settlement. you bring in a third person. rather it facilitates settlement. • Under the Federal Arbitration Act. Then have the lawyers present an abbreviated version of the case. Then the jury issues a “mock” verdict. Fiss. Negotiation Mediation: Facilitated negotiation. Settlement and ADR Rule 16(a)(5): Purposes of a Pretrial Conference. • Adversarial Settlement: Deal between the parties in which the defendant offers to pay plaintiff X amount of money in exchange for plaintiff to release the claim. Other Dispute Mechanisms for Facilitating Settlement Summary Jury Trial: Two parties have a dispute.” There is a “moot-court” essentially. Hopefully leads to a facilitation of settlement. • Litigation can be slow/expensive • It is a public process. When a third party neutral tries to help the parties reach an agreement. Against Settlement o Really powerful idea for the reason that we have public dispute resolution is that justice sometimes needs to be done by the courts o Doesn’t like settlement  Power party may be able to influence  One party may need damages immediately and enticed to settle  The poorer party might be forced to settle because he does not have the resources to finance the litigation o COURTS SHOULD BE DOING IT Ways to Resolve Disputes Litigation: Process of lawsuit in a court. arbitration is binding and can be court enforced. 71 . But it’s not binding.• Owen M. Arbitration: Asking someone to decide the dispute. Mini-Trial: Bring the decision-maker from both parties and have them sit as the jury. • Usually pursuant to a contract. can design own process. • Can have rules that look a lot like litigation. adjudicated by a judge.

and file motions. even if they win but don’t do better than the offer – to take defense offers seriously.Rule 16(c)(2)(I): Authorizes the court to take ‘appropriate action’ with respect to settling the case and using special procedures to assist in resolving the dispute when authorized by statute or local rule. with the consequence that if a claimant does not accept the offer and does not do better in the end. Pre-Trial Case Management Rule 16: Pretrial Conferences. The judge has the power to sanction a party or attorney who fails to obey the scheduling order. It has been relatively little used and consequently ineffective. ADR Act of 1998: Requires each federal district to adopt by local rule. • Except in certain excluded cases.” • May only be modified for good cause and with the judge’s consent. Parties’ Responsibilities (in Discovery rules section). amend the pleadings. 72 . set dates for pretrial conferences and trial. In conferring. some sort of ADR program. o The order may also modify the timing of disclosures. • Amendments gave authority to consider the use of ADR methods to resolve the parties’ dispute. Rule 26(f)(2): Conference Content. the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case. the district judge must issue a scheduling order after receiving the parties report or after consulting with the parties’ attorneys. the extent of discovery. complete discovery. • The idea is to both encourage defendants to make serious settlement offers and to give plaintiffs an incentive – the prospect of having to pay post-offer defense costs. which in some situations can include mandatory litigant participation. 16(b): Scheduling Order. Rule 68: Offer of Judgment. Scheduling. provide for disclosure of discovery. and “include other appropriate matters (16(b)(3)(B)(vi). o The order must limit the time to join other parties. the plaintiff is liable for the defendant’s post-offer “costs” – usually not including attorney fees. TRIAL QQ. Management. Allows defendants to make formal offers to have judgment entered against them.

described a two-pronged analysis for applying the Seventh Amendment to more recent types of claims. the trial court “may” (and most often does) hold a final pretrial conference. In Chauffeurs Local 391 v. a list of documents that each party proposes to introduce in evidence. It focuses on the conduct of the trial. the deposition excerpts that a party proposes to use. • Final pretrial orders can be modified “only to prevent manifest injustice. to the opposing parties’ witnesses.The Final Pretrial Order • After the completion of discovery. the parties submit a joint trial plan or proposed final pretrial order that includes some or all the following elements: o The stipulations of law and fact on which all parties agree. Jury Trial 1. deposition excerpts. • Most judges insist that before the final pretrial conference. however. Those cases would have been heard in the common law courts in 1791. Terry. or documents. and the objections.Rule 16(e): Final Disclosures . and many types of current claims had not even been imagined in 1791. the year the Seventh Amendment was ratified. only goes so far. if any.  These essentially distill the lengthy process of discovery – the legal issues. carries a right to a jury trial. a claim for an injunction prohibiting certain conduct by the defendant or a claim seeking specific performance of a contract does not carry a right to a jury trial. a list of witnesses that each party may call. a statement of the remaining disputed issues of law and fact that will form the basis of the trial. o The Court. • Right to a Jury Trial The basic rule: A party in a federal civil case has a right to a jury trial if the same case would have been tried by a jury in 1791. • The historical test. 73 • • . o By contrast. A tort claim or breach of contract claim for money damages. for example. A lot has happened since the Seventh Amendment was ratified. the Court addressed how to approach a cause of action that was created after the Seventh Amendment’s adoption. RR.” Rule 16(f)(1)(C). the evidence. acknowledging this limitation. and the witnesses that emerge from the threshing floor of pretrial. because it would’ve been decided by a judge in the courts of equity.

o Parties often make jury demands by including a prominent statement on the first page of their complaint or answer. the right to a jury trial is waiveable. the party must demand it within the time limit set by the rule.  • Rule 38: If a party wants to have a jury. look to the remedy sought. the Court said. So find the type of 18th century claim that most closely resembles the claim in the case. courts of equity). If a party does not demand a jury. • The Court emphasized that the remedy sought often provides the determining factor under the Seventh Amendment (common law courts vs. the Court said. o A party demands a jury trial by “serving the other parties with a written demand – which may be included in a pleading. that party loses the right to a jury trial.” and filing the demand with the court. look for a historical analog to the claim. like “PLAINTIFF DEMANDS TRIAL BY JURY. 74 .” • Like many other constitutional rights. First. Second.  The statement usually consists of something creative and poignant.

The group of people from whom the jury will be selected. 3. is then narrowed until the jury is finally seated for a particular trial. o In addition each side may make several peremptory challenges. in which a party argues that a particular juror should be excused because the juror would be unable to decide the case fairly.2. Litigants have the right to challenge particular jurors. the court summons citizens to appear for jury duty. either for good reason or no reason at all. Pros and Cons of a Jury Trial • Why is it a good idea to have a jury? o Buffer between the citizen and “the man” (check and balance) o Wider perspective o Accept judgments easier by litigants and public o Claims heard by the community (catharsis) / voice o Notion of flexibility (allows the law to bend without breaking) o Changing norms o Educating jurors (i.e. in which the party gets rid of a particular juror without offering any reason. This questioning process is known as voir dire.  A federal statute limits each party in a federal court civil case to three peremptory challenges. idea of a public school) o Reflect societal norms and community standards • Why is it a bad idea to have a jury? o Lack of consistency o Inexperienced in the law / lack of knowledge o Unwilling deciders (is that really who we want deciding cases) o Bias o Prejudice/sympathy o Expensive and inefficient o Damages – related to sympathy o Lack of transparency Jury Selection As a first step. which are unlimited. known as the jury venire. o They make challenges for cause. • • • • The Court has declared that peremptory challenges on the basis of race or gender are unconstitutional as violations of the Equal Protection 75 . in contrast to challenges for cause.

Special Verdict: does not ask the jury to state which party should prevail. which simply asks the jury to decide who wins and how much. but in addition the jury answers specific questions presented by the court. since an appeal’s court may reverse a trial judge’s factual findings if they are clearly erroneous. General Verdict with Questions: The jury renders a verdict stating which party prevails. Burden of Persuasion • The plaintiff must establish each element of the claim by a preponderance of the evidence. The transparency of a bench trial decision – as contrasted with the opacity of a general verdict – makes a bench trial decision both less powerful and more powerful than a jury verdict. • Bench Trials Bench trials (trials without juries) occur when there is no right to a jury trial. o If a party believes the other party has used a peremptory challenge to exclude a juror based on race or gender. a judge in a bench trial must state his or her findings of fact and conclusions of law. but instead asks the jury to answer specific factual questions. Unlike a jury trial. o A judge’s decision is more vulnerable to reversal on appeal. 2. Trial Process Verdicts a. 1. the party may object and the court may require the party using the challenges to show that their challenge is not based on race or gender. SS. even if the lawsuit is one that entails a right to a jury trial. and where no party makes a timely jury demand. • • • 76 .Clause. Forms of Verdicts • • • General Verdict: the most basic form of verdict. The judge then enters judgment for the appropriate party based on the answers given by the jury. Rule 49 gives courts two alternative forms of verdicts: the special verdict and the general verdict with questions. b. o Basically a combination of the first two types of verdicts.

• Judgment as a Matter of Law shifts some of the jury’s authority to the judge.V. Judgment as a Matter of Law and New Trial 1. this device is what used to be known as directed verdict.  If the evidence is so clear that there is only one way a reasonable jury could decide. • The standard for granting judgment as a matter of law is just like summary judgment. by believing certain witnesses and disbelieving others. Whenever a judge grants judgment as a matter of law.O. • Motion and Renewed Motion (or Directed Verdict and J. but juries are not empowered to decide civil cases without regard to the evidence and the applicable loaw. It’s important to be aware of the procedural details that relate to this difference in timing.n. which permits courts in later proceedings to use certain factual determinations reached in an earlier case. 77 . the court must look at the evidence in the light most favorable to the nonmoving party. o Older cases use the terms directed verdict and judgment notwithstanding the verdict (j. TT.o But a bench trial decision carries the potential to be more powerful than a jury’s general verdict because of issue preclusion. o This means drawing all reasonable inferences and resolving credibility disputes in favor of the nonmoving party. a jury could reasonably find in favor of the nonmoving party. o Before the verdict.v). When a plaintiff or defendant moves for judgment as a matter of law.): Judgment as a matter of law can occur before or after the jury has rendered a verdict. the judge is taking the decision-making authority away from the jury. • Judgment as a Matter of Law Rule 50: Motion for Judgment as a Matter of Law and the Renewed Motion for Judgment as a Matter of Law – if the evidence at trial is so lopsided that only one party can reasonably prevail. o The justification is that the jury may decide the case within the bounds of reason.N.o.  If. then the court must deny the motion for judgment as a matter of law. the judgment as a matter of law may be appropriate.

 This is what has traditionally been called a J. judgment as a matter of law ordinarily must wait until the close of all the evidence because the court doesn’t know whether the defendant should lose until the defendant has had an opportunity to present its evidence.o Rule 50(a) states that party may move for judgment as a matter of law “at any time before the case is submitted to the jury. For a defendant. or what Rule 50(b) calls the Renewed Motion for Judgment as a Matter of Law. o A party cannot moved for J.N. the fact that Rule 50 motions occur during trial highlights the judicial assertion of power in relation to the jury. at the Rule 50 stage the case is at trial.O. at the rule 56 stage.V.  Although as a matter of procedural theory.  Therefore.O. o After the jury has rendered a verdict.V. the timing to move for judgment as a matter of law depends on whether the movant is a plaintiff or a defendant. 78 . that party may have not won on summary judgment if the judge wanted to see how the evidence will develop at trial. the losing party may ask the judge to take the decision away from the jury and decide it the opposite way.” but also makes it clear that judgment as a matter of law may be granted only after the nonmoving party has been fully heard on the relevant issue. the jury is just an idea. unless that party previously moved for a directed verdict.. • If a case is so lopsided that a party wins judgment as a matter of law. • For a plaintiff.N. judgment as a matter of law can occur at the close of all evidence or at the close of the plaintiff’s case. Rule 56 and Rule 50 motions function quite almost identically. however. no reasonable jury could have decided the way this jury did. • o One big difference between Rule 50 (judgment as a matter of law) and Rule 56 (summary judgment) is that while judgment as a matter of law takes the decision away from jury. arguing that based on the evidence and the applicable law.

• Unlike in the first scenario. o Reasons for granting Renewed Motions for Judgment as a Matter of Law instead of Motions for Judgment as a Matter of Law:  (1) Straightforward psychology and political science – if the jury gets it “right. or important evidence may have been erroneously admitted or excluded. • Process problems to justify a new trial must be serious enough to raise serious questions about the fairness of the proceedings.. then the judge has the discretion to order a new trial.N. If a J. Or a lawyer may have engaged in misconduct such as an improper closing argument. the trial court can simply reinstate the original jury verdict. stating only that a court may grant a new trial on whatever grounds have traditionally been permitted.V. makes it clear that new trials can be granted in response to types of trial flaws – process problems and outcome problems. however.. • New Trial Rule 50 spells out the procedure for new trial motions. If they mess up there is always J.V. o It’s counterintuitive. o The case law.O. on the other hand.N.  If a judge believes that allowing the trial stand would be unjust in light of the error in the conduct of the trial. 79  . gets reversed on appeal. (2) If a Judgment as a Matter of Law gets reversed. the judge’s instructions to the jury may have been an erroneous interpretation of the law. o Ex. 2. but the rule is pretty cryptic about what are adequate grounds. the party may not wait until after the jury verdict to make this argument. If a party thinks that the other side’s evidence is so weak or the case is so clear that it can be decided only one way. no new trial is required. the entire case must be retried.” it obviates any need for the judge to grant judgment as a matter of law and everyone’s happy. but judges understand that it can actually be more efficient to deny a deserving Rule 50(a) motion and instead to grant the Rule 50(b) renewed motion if necessary.O.

” o For a new trial. the next-best option is to get a new trial. as a basis for new trial motions. and in the alternative. this type of conditional new trial order is permitted in both federal and state courts. a Rule 50 motion for a new trial. rather whether the jury’s decision was so clearly contrary to the evidence that the verdict cannot stand. but cannot say that no reasonable jury could have gone there. the losing party’s first choice is to win judgment as a matter of law.  Naturally. • Judges also use the power to grant new trials as a way to lower the amount of damages awarded by the jury. the judge may order a conditional new trial.V. the party may make a Rule 50(b) renewed motion for judgment as a matter of law. telling the plaintiff that there will be a new trial unless the plaintiff accepts a reduced amount of damages. tend to go hand in hand with motions for judgment as a matter of law. o If the judge finds the amount awarded irrationally high. “lets try again. • The new trial standard is softer than J.” • The question is not what the judge would have decided if he was a juror.N.O.” • Known as remittitur. courts sometimes state that the judge should alter the damages only if the amount “shocks the conscience. o When a losing party believes the jury’s verdict was unsupported by the evidence. and the worst option is to let the verdict stand.• Outcome problems. 80 . because instead of handing the verdict to the other side.”  Some courts emphasize the high standard by using the phrase “against the great weight of the evidence. • Rule 50 and Rule 59 motions often go hand in hand.  Judges should not simply substitute their measure of damages for the jury’s. o Courts say that a new trial may be granted if the jury verdict is “against the weight of the evidence. the judge is saying. the judge disagrees strongly with the jury.

k. Claim Preclusion • 1. Do not focus on what legal theories the complaint invokes (strict liability. But even if you’re unwilling to go that far. resist the law student temptation to think about lawsuits in legal terms. The doctrine of claim preclusion can be pretty well summed up in one sentence: A valid. “We think the facts and law in this case so clearly support our position that no rational jury could have found otherwise. the evidence weighs so heavily in our favor that you should find the jury’s verdict o be against the weight of the evidence and therefore grant a new trial.” PRECLUSION UU. final judgment on the merits precludes relitigation of the same claim between the same parties. or a motorcycle accident.• By renewing a Rule 50 motion and moving in the alternative for a new trial. consistency. etc.k. collateral estoppel): Addresses whether parties are prohibited from litigating a particular issue that was decided in a prior lawsuit. a claim is precluded by a prior judgment if the actions arise out of the same underlying transaction or series of transactions.) o Instead. ask what the case was actually about.a. res judicata): Addresses whether parties are prohibited from asserting a claim because they already received a judgment on the same claim. Same Claim The majority approach and the modern trend is to apply a broad transactional test.  The transactional test tends to further the goals of claim preclusion – efficiency. or 81 . o According to the Restatement (Second) of Judgments § 24. What was alleged to have happened that gave rise to the dispute?  Maybe it was a business deal. the party is trying to say to the judge. finality – by encouraging joinder of related claims. Two Kinds of Preclusion • Claim preclusion (a. and therefore we think you should grant judgment as a matter of law for us. • • To apply the transactional test.a. Issue preclusion (a. • VV. breach of trust.

2. What entitles a judgment to recognition ultimately is the legitimacy of the court to render a decision that is binding in this particular dispute on these particular parties. It makes claim preclusion a powerful tool for defendants to get claims dismissed in the second case. it creates a huge incentive for a plaintiff to join all related claims in a single lawsuit. Charlie can still sues Benny. • Same Parties Claim preclusion applies to claims between the same parties.  Claim preclusion does not prevent a different plaintiff from asserting a claim against Benny. then Andy is precluded from reasserting the same claim against Benny. o If Andy sues Benny and a court enters judgment on Andy’s claim. o More significantly. then the judgment doesn’t bind that party. Validity • Think of “validity” more as a structural and procedural notion. o If so. Nor does it prevent Andy from asserting a claim against a different defendant. Charlie was not a party to the case and you can’t bind a non-party. then it’s the same claim for purposes of claim preclusion. with a few exceptions. • The transactional test casts a wide net. • According to the Restatement (Second) of Judgments. • 3.  Valid and Final Judgment a.an employment termination. o One exception is for default judgments – if a defendant does not appear in the first 82 . because Charlie cannot be bound by the first judgment. o Which brings us back to personal jurisdiction and subject matter jurisdiction: if a court lacks personal jurisdiction over a party or if adequate notice hasn’t been provided. even if it arises out of the same event. • The transaction test asks whether the claim asserted in the second lawsuit arose out of the same underlying factual situation as the first. a judgment from a court that lacked subject matter jurisdiction may nonetheless be given preclusive effect.

apply the transactional test: Do the actions 83 • . then there is no good reason to prevent a litigant from refilling the same claim. whether they are between the same parties. valid. it must be final. and if the procedural flaw in the first action can be repaired. it would not make sense to apply claim preclusion to a dismissal that was intended simply to tell the plaintiff to get the pleading right. on the other hand. and whether the prior judgment was final. • Under modern pleading theory. the Court called into question whether Rule 41(b) really means that the default rule is to consider a dismissal to be on the merits unless the court states otherwise. analyze whether the cases involve the same claim. the court might state that the dismissal is “without prejudice” or “with leave to amend. In the federal courts and the majority of state courts.action.  The Court concluded that the “upon the merits” language of Rule 41(b) means only that the same claim cannot be filed in the same court. o If. o The Court expressed concern about whether it would violate the Rules Enabling Act for a federal rule of civil procedure to govern the law of claim preclusion. Lockheed Martin. a lawsuit is dismissed on a threshold procedural issue. “On the Merits” Claim preclusion is meant to prevent litigants from relitigating their dispute after the dispute has been resolved. Finality • • 4. Does the new lawsuit involve the “same claim” as the prior action? o In federal court and most state courts. o To make this clear. If parties have received an adjudication on the substantive merits of their dispute. a judgment is considered final even if an appeal is pending. a dissatisfied party should not be permitted to try again for a better result.” • In Semtek v. rather than to tell the plaintiff that she had no case. • • For a judgment to be entitled to finality. and does not govern whether a judgment is entitled to claim preclusive effect Claim Preclusion Analysis • TO determine whether claim preclusion applies. b. then the defendant later can challenge the validity of the judgment by showing the first court lacked subject matter jurisdiction. and on the merits.

the judgment may have claim preclusive effect. improper venue. the determination is XX. then the judgment has no claim preclusive effect. When a specific question has been answered in one case.  Did the court have subject matter jurisdiction? • Even if the answer is no. o Was the judgment in the first case “on the merits”?    Judgments for plaintiffs are nearly always on the merits. but usually the only way to collaterally attack a judgment for lack of personal jurisdiction is by defaulting in the first action. Dismissals for lack of jurisdiction. then the determination from the first case is taken as conclusively established for purposes of the second case. WW. issue preclusion prevents the parties from trying to get a different answer to the same question in another case. o If issue preclusion applies. unless the first court abused its authority. Issue Preclusion • 84 . and the determination is essential to the judgment. or unless the defendant defaulted and has a meritorious defense. Other dismissals are not on the merits if the court dismisses “without prejudice” or “with leave to amend”. • Restatement (Second) of Judgments § 27: “When an issue of fact or law is actually litigated and determined by a valid and final judgment. they are on the merits.arise out of the same underlying factual sitation? • • Is the new lawsuit between the same parties or those in privity with them? Is the new judgment in the prior case entitled to claim preclusive effect? o Was there a final judgment in the prior case? o Was the prior judgment valid?  Did the court have personal jurisdiction? • If the answer is no. or failure to join a party are not on the merits. otherwise. Compulsory Counterclaims • Rule 13(a): Requires counterclaims to be brought in the original action if they arise out of the same transaction or occurrence as the original claim.

• Actually Litigated and Determined Unlike claim preclusion. it may be simple or complex. • 85 . o Some call this the “identical issue” requirement. then issue preclusion does not apply.  The point of the “actually litigated and determined” requirement is to prevent the unfairness that would occur if parties were precluded from presenting evidence on issues that had not truly been litigated in the prior action. and you are precluded from relitigating the issue. your first step should be to define – as crisply as possible – the issue or issues that you think might be precluded. but for issue preclusion to apply. so now you’re precluded from raising it. the very same issue must be relevant in both actions. “This exact issue was already raised in a prior lawsuit. and it’s been answered. or that the factfinder in the prior action did not actually decide. as it is for claim preclusion.conclusive in a subsequent action between the parties. It’s been litigated enough. the issue must be identical – not merely similar – in both proceedings. which tells litigants. and the parties will not be allowed to relitigate those questions.” issue preclusion says. o Is it did Benny drive negligently? Or in one case it could be. • Identical Issue For an issue determination to be given preclusive effect in a subsequent lawsuit.” o Validity and finality is the same here. o Issue preclusion means that certain determinations fromone case may be taken a conclusively established in another case.” Remember that the “actually litigated and determined” requirement is no mere technicality. “You could have presented evidence about this issue earlier in the lawsuit. 2. • Whenever you think about issue preclusion. 1.  If the issue that was decided in the first case differs from the issue that is relevant in the second case. SO we’re going to take that answer and use it in the current action. Did Andy have a valid patent?  The issue may be major or minor. so no need to revisit it.

then it could not have formed a basis for appeal. therefore Charlie is not bound by either claim preclusion nor issue preclusion. if the determination was not essential to the judgment. Benny. and Charlie are in a three-car collision. with a limited exception for nonparties who are in privity with a party. with exceptions that generally fall under the description of privity. then the judge or jury may not have considered the issue thoroughly. o Also.. they may not advocate their positions as vigorously as they would with regard to issues that are more likely to determine the outcome. • Same Parties and the Mutuality Doctrine The notion of “same parties” for purposes of issue preclusion resembles. which stated that alternative holdings should be given issue preclusive effect. Andy. b. The court never acquired power over Charlie. we will see that issue preclusion is treated quite differently from claim preclusion. • Only parties can be bound by a judgment. o On the question of who can assert preclusion. • Essential to the Judgment If a determination was not necessary to the disposition of the case. and the possibility of appellate review is one guarantor that an issue has been treated with care.  Finally. 86 .3. 4. only parties are bound by a judgment. the treatment of claim preclusion. Charlie sues Benny for negligence. • Most federal courts continue to follow the view of the First Restatement of Judgments. because YOU CAN’T BIND A NON-PARTY. o Ex. Who Is Bound by Issue Preclusion • In general. to some extent. to whatever extent the parties foresee that an issue will not be essential. Who Can Assert Issue Preclusion: The Mutuality Doctrine and the Rise of Nonmutual Issue Preclusion • Nonmutual issue preclusion occurs when someone who was not a party to the first case uses the judgment for issue preclusion against someone who was a party to the first case. a. Andy sues Benny for negligence and the jury finds Benny was not negligent.

• Hence this is nonmutual. courts would have applied the mutuality doctrine. to defend the issue as precluded. Subsequently. Offensive Nonmutual Issue Preclusion o Defensive nonmutual issue preclusion. • Offensive nonmutual issue preclusion does just the opposite. to assert the issue as precluded. Benny can’t say. • Why? Defensive nonmutual issue preclusion encourages plaintiffs to join all potential defendants in one action. 87 . o It had to be mutual. it is Charlie who tries to use issue preclusion.  Courts are much more reluctant to permit offensive nonmutual issue preclusion than defensive. This means that the only ones who could use issue preclusion were those who were parties to the first case. If courts were to freely allow offensive nonmutual issue preclusion. and Charlie. but under more limited circumstances than mutual issue preclusion. the party using the doctrine is using it as a “shield.• • Most modern courts permit at least some nonmutual issue preclusion. “You can’t bind a non-party. o If a party knows defensive nonmutual issue preclusion is permitted. because otherwise the plaintiff would face a one-way disadvantage. the party using the doctrine is using it as a “sword. This hypo will illustrate: o A three-car collision occurs amongst Andy. since only one of the parties has the possibility of binding the other. the potential plaintiffs would prefer not to join in the first action. The jury returns a verdict for Andy. he’ll prefer to sue both parties in a lawsuit.” that is. • Until the mid-twentieth century. • Defensive Nonmutual Issue Preclusion v.” that is. Andy sues Benny for negligence.” because Benny was a party. o Offensive nonmutual issue preclusion. Charlie sues Benny for negligence in the same collision. and the court enters judgment accordingly. Charlie argues that it was already established in case 1 that Benny was negligent in causing the collision. which tends to promote judicial efficiency.  This time. Under the mutuality doctrine. one could not assert issue preclusion unless one could also be bound by the same doctrine. Benny. but rather to wait and see the outcome.

• There was no “wait and see” problem because it would have been impossible for the plaintiff to join in the first action. Issue Preclusion Analysis • First. • Consider which party is bound by each type of issue preclusion. by contrast.  The Court acknowledged that offensive nonmutual issue preclusion often presents dangers of unfairness. Then ask: o Is the issue identical in case # 2 and case # 1? o Was there a valid and final judgment in case # 1? o Was the issue actually litigated and determined in case # 1? o Was the determination essential to the judgment in case # 1? o Was the party to be bound by issue preclusion either a party in case # 1 or in privity with a party? 88 .  It hardly seems unfair to hold a litigant to the decisions of a tribunal that was selected by that litigant. but on the facts of the case. v. so the defendant had a full and fair opportunity to litigate the issue. Shore. o Defensive nonmutual issue preclusion binds the party who chose the time and place of the first lawsuit. a private plaintiff in a class action sought to bind the Parklane Hosiery Company with a determination from a government enforcement action that the company had issue a materially misleading proxy statement. o Offensive nonmutual issue preclusion.o The “wait and see” problem is one important reason why courts disfavor offensive nonmutual issue preclusion. the Court decided that in some cases offensive nonmutual issue preclusion is permissible. o Also. the stake sin the first case were high and the procedural opportunities were thorough.  The issue had not been the subject of inconsistent determinations. would bind a party who may have been dragged into the first case kicking and screaming. • In Parklane Hosiery Co. o In the case. the Court found it permissible to use such issue preclusion. be sure to identify clearly what issue was resolved that may be entitled to issue preclusive effect.

o Was the party asserting issue preclusion in case # 2 also a party in case # 1? If so. but most courts permit such preclusion. In Semtek v. Section 4. or as a sword to advance a claim (offensive)?  If defensive nonmutual issue preclusion. the Court faced a difficult twist on the question of choice of preclusion law. YY. then pay attention to whether there was a full and fair opportunity to litigate the issue in the first action. If not. o If nonmutual issue preclusion. o Each state must give respect to judgments entered by courts of every other state. If offensive nonmutual issue preclusion. which would be prohibited under the traditional mutuality doctrine. Interjursdictional Preclusion • Full Faith and Credit Clause: “Full Faith and Credit shall be given in each State to the public Acts. then issue preclusion does not apply. If the answer to all of them is yes. • • •  Could the plaintiff easily have joined in case #1? Were the stakes or procedural opportunities in case # 1 insufficient to ensure a full and fair opportunity to litigate the issue? Have there been inconsistent determinations of the issue?  If the answer to any of these questions is yes. • Judgments are frequently enforced and given preclusive effects across international borders. because it involved the preclusive 89 • • . Most courts and commentators agree that the law of the first forum should generally govern the preclusive effect of the judgment. Lockheed Martin. and with much greater attention to potential unfairness. Records. but may be allowed under modern preclusion doctrine.” – Article I. and judicial Proceedings of every other State. figure out whether it’s defense or offensive: Is the asserting party using issue preclusion as a shield to defend against a claim (defensive). but that transnational enforcement of judgments is much more complex and uncertain than enforcement and preclusion across jurisdictional borders within the US.• If the answer to any of the above questions is no. then figure out whether you’re dealing with mutual or nonmutual issue preclusion. then courts permit it under much more limited circumstances. that may provide a reason for a court to reject offensive nonmutual issue preclusion as unfair. then it is nonmutual issue preclusion. then it’s mutual issue preclusion.

• Semtek then proceeded to file the same claim in Maryland state court.  Even though the dismissal was on the merits as stated by the court. which had not yet expired. but rather to look to the first forum as the source of applicable preclusion law.effect of a judgment from a state law case in federal court. the Court 90 . the Court explained that the preclusive effect of the judgment must be determined by looking to the first case. • Gives us the general rule: The second forum is not supposed to apply its own preclusion law. but Lockheed removed the action to federal court on diversity jurisdiction. the question of whose law governed the preclusive effect of the judgment was really an Erie question.  Therefore. o Semtek sued Lockheed on a state law claim. o The Court ultimately concluded that the effect of a federal court judgment was governed by the federal common law of preclusion. but that the federal law should incorporate state standards. o Lockheed moved to dismiss on grounds of claim preclusion. unless an overriding federal interest demands otherwise. • Since the first case was a state law case in federal court. therefore implicating the Erie doctrine. because in Maryland the applicable statute of limitations was three years. So Maryland preclusion law was entirely besides the point. Semtek originally sued in California state court.  The federal court dismissed “on the merits and with prejudice” based on California’s two-year statute of limitations.

D. based on an anticipated federal defense. is assumed to be (except for lack of jurisdiction. o We know that On the Merits doesn’t actually mean “On the Merits. • Lockheed tries to remove based on diversity. 2001) Case #1 – Semtek sues Lockheed Martin in California state court. Lockheed removes to C. On the Merits  for CP purposes. Judgment for Lockheed based on statute of limitations for type of claim.D. or with leave to amend. o If the court said without prejudice. Lockheed Martin (Sup. Semtek argues that it is not time-barred in Maryland by the statute of limitations. Same clam –yes 2.yes 3. Case #2 – Semtek sues Lockheed Martin in Maryland state court for the same claim. Elements of Claim Preclusion: 1.held that the Maryland state court should apply the California rule that the statute of limitations dismissal was not on the merits and thus not entitled to claim preclusive effect.” o The court in Cal. improper venue. But that is not what the court said.” So Semtek says we should look at California state law to determine the 91 . BUT EASILY shot down under Mottley. Same parties . the court said it explicitly! “On the Merits. with prejudice. failure to join a party under Rule 19  go bring case in a court where you can join that party). In fact. final judgment . of Cal’s judgment was final and on the merits. so Semtek is claim precluded. We know that statute of limitations it is substantive (Guaranty Trust). • So Lockheed argues the C. Valid. of Cal (1441 – removal statute) based on diversity jurisdiction (1332). Ct. Goes up to 9th Circuit and 9th Circuit affirms. So Lockheed tries  • For jurisdiction on federal subject matter jurisdiction (1331). but cannot because Lockheed is an in-state defendant in Maryland. Says dismissed “on the merits” and “with prejudice. – That’s what is at issue. we know you could bring a new case.yes 4.”  Even if it didn’t. Rule 41(b) says it’s a dismissal “with prejudice”/on the merits because any dismissal that doesn’t state whether it is on the merits/with prejudice. Semtek: An In-Depth Analysis Semtek International v.

you’ll see it was not on the merits. “There is no federal GENERAL common law. • There is federal common law about SPECIFIC things.  States have a duty to respect federal law and federal courts decisions (US Constitution – Supremacy Clause). o Interstitial – fills the gaps of various statutes. o Go to Federal Common Law  Nothing on point. so it remains to the federal courts to determine what the law is. property. o Don’t get hung up by Erie. Law would not treat a statute of limitations dismissal as one on the merits. etc. • What does California claim preclusion law? Cal. admiralty law.preclusion question for the effect of that judgment. while under Maryland law. Maryland state court has to respect the judgment of the federal court. etc. So. that is the supreme law of the land. • Where there is federal law. such as procedure. NOT state courts giving Full Faith and Credit to the federal courts. o What about Full Faith and Credit Statute?  § 1738 – Full faith and credence to every court within the United States  so should be every court right? • It means that district court has to give Full Faith and Credit to the state court proceedings.”  This is about torts. Is there a federal rule directly on point? (Hanna). not Federal court and State court. • But it’s an Erie issue embedded in the decision from the prior case. o Kind of like Walker  Semtek argues that 41(b) is not really about claim preclusion. under federal law. but rather about bringing the 92 . o If you do so. • Why does Maryland state court need to respect this decision? o Not Full Faith and Credit Clause (of the Constitution)  Only between State court and State court.  In Park Lane Hosiery there was court-made federal law about issue preclusion. 1. the statute of limitations doesn’t apply. • 41(b): Dismissals are on the merits unless one of the exceptions. ERIE ISSUE. • GO TO ERIE ANALYSIS to determine what law to apply. contracts. and we’ll be able to go forward. • Same thing about claim preclusion going on here.

Not if you add Catchcart (NY resident  not complete diversity). 93 . the rule. • Good on both sides. 1331. • No Federal Question Jurisdiction.  The federal reference to state law will not apply if the state law is incompatible with federal interests.same claim in THAT court. --> It’d be stepping out telling state courts the effect of a federal court decision. o Federal courts’ interest in the integrity of their own processes justify a contrary federal rule.) NY (principle place of business) v.. 2. There is no federal rule directly on point  Modified Outcome Determinativeness Test. • Ex.  So Rule 41(b) doesn’t really say its claim preclusive. FORUM EXERCISE I. Subject Matter Jurisdiction 1. • Twin Aims of Erie: Discourage Forum Shopping and Avoid Inequitable Administration of the Law? o Is this the kind of thing that they would forum shop over? If they thought they’d get dismissed they wouldn’t have brought the case there .so no real forum shopping here. o What the federal common law would do is to look to the state law and adopt by reference. then it would be in violation of the Rules Enabling Act because it abridges.Federal Question Jurisidction: Merrell Dow v. Grabel  Weak for this.  If it meant that it was claim precluded nationwide. we’re applying federal common law.) MA (principle place of business is where HEADQUARTERS ARE for DIVERSITY). enlarges or modifies a state substantive right. Is there a difference? • It is outcome determinative in the Guaranty Trust sense. state law did not accord claim-preclusive effect to dismissals for discovery sanctions. as part of the federal common law. DE (inc. 1332 – Diversity Jurisdiction: NY (inc. • So we’re not applying state law. So the Court says that federal common law governs the claim-preclusive effect of a dismissal by a federal court sitting in diversity. 2.

• Cathcart General: NY Specific: MA.000). Mass. Conn NY SDNY IV. Erie Analysis 1. MA. (a)Outcome Determinativeness/(b)Discouraging F. terms.000 > $75. • 94 . SDNY. Preemption. V. VI. Conn. Looks exactly like there is an ADDITIONAL PURPOSEFUL CONTACT with NY. Personal Jurisdiction (FOR SJ  Start with Long Arm Test) • Revere General: DE. MUCH STRONGER THAN ASAHI because here the whole dispute is whether the phones were designed for compliance with NY regulations.S. RI Conn D. may want to stay in your home state (also if a state law with certain policy implications is part of claim). Mass. & Inequitable administration of the laws.Del.most preemption. Venue 1391(a)(2): D. Is there a federal rule/statute on point? No. SDNY. RI. II. Mass RI D. Conn 1391(a)(1): D. DE allow evidence of add. NY? III. NY? A little bit tougher. What Court Do We Get • Things to remember: if you choose state court and don’t want defendant to be able to remove to federal. MA. • Considerations for courts: If you’re a NY plaintiff. CT won’t help us. RI. D. see if you could destroy diversity (add Cathcart-NY defendant who also under 1441 can’t remove since she’s an in-state defendant) or only sue for 75K (doesn’t meet minimum for amount in controversy). Go to the Erie analysis… 2. Strategy/Choice of Law Parole Evidence Rule – We care most about this  MA. (Revere agreed to design these phones to NY regulations). D.Do we meet amount in controversy? Can aggregate claims against one party by one party  So yes ($85. DE. Strong argument for specific jurisdiction. NY are not really known. D. D. CT. RI. FNC/Transfer: What Do we End Up With State Federal Mass D. RI Specific: MA. Stream of commerce question (Like Asahi). D. RI. E-Discovery-FRCP. less preemption.

1331. 1332.RECAP: How to do the Forum Problem 1) State/fed SMJ a. supplemental jurisdiction. other. if it a class action is there CAFA jurisdiction? 2) Where PJ. Venue 3) Erie 95 .

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