Chapter 2 Personal Jurisdiction A.

. Origins Traditional bases of in personam PJ: Presence: If the is served with process in the forum it gives the forum general in personam jurisdiction Agent: Service of process on the s agent in the forum creates general jurisdiction Domicile: is domiciled in the forum gives general jursidiction Consent: consents to specific jurisdiction

Pennoyer v. Neff [unpaid legal fees] - Supreme Court spells out the theory of personal jurisdiction. This case gives us the traditional basis of in personam jurisdiction. F: The previous owner of land which D bought had won a lawsuit against P for non-payment for legal service in a court in Oregon. P was not within Oregon, and there was only constructive service by publishing notice in a local newspaper and a default judgment b/c P didnt show up. Ps land was seized and sold by Sheriff to this D. P filed a collateral attack at fed. Ct. claiming there was no personal jurisdiction over him.

R: Every state possesses exclusive jurisdiction and sovereignty over person and property within its territory; therefore, the courts of that state may enter a binding judgment against a non-resident only if a non-resident is personally served with process within the forum state, or, if the defendant has property within the state and it is attached before litigation begins. Judgment entered without jurisdiction not entitled to Full Faith & Credit And therefore subject to collateral attack Assertion of jurisdiction can be challenged directly under Due Process clause Collateral attack when lack jurisdiction **Collateral attack: If D defaults in an action in state 1, s/he may collaterally attack the earlier jgm. by suing P on the grounds that State 1 did not have personal juris. **Special appearance: A special appearance is one where D is allowed to appear and argue only lack of personal jurisdiction. - If D raises any other defenses or issues, then it deemed to have made general appearance. can obtain in personam jurisdiction In rem jurisdiction over a non-resident over a non-resident (presence) Only if the non-resident is personally served if the non-resident owns property within the forum with process within the forum state state, and Constructive service is insufficient; or the property is attached before litigation begins a party must have voluntarily consented to (Notice) jurisdiction (voluntary appearance) - Attachment: simply means that the court forbids the land Exception: a spouse can sue for divorce even if the from being sold, etc., while the suit is proceeding. absent wife or husband could not be served with Constructive service is sufficient (i.e., by publication or the state, exclusive of alimony or child support. in other authorized form)

B. The Modern Constitutional Formulation of Power 1. Redefining Constitutional Power - Long-arm statute permits the court of a state to obtain personal jurisdiction over non-resident persons not physically present within the state at the time of service. - Personal JURISDICTION: State court may exercise Personal Jurisdiction over a nonresident D if: 1) the long-arm statute authorized the exercise of jurisdiction, and 2) the exercise of jurisdiction comports with due process. [Both elements must be satisfied] - Under the federal constitutional test of due process, a state may assert PJ over a nonresident D ONLY if: 1) The defendant purposefully established minimum contacts with the forum state, consistent with due process. 2) The exercise of jurisdiction comport with fair play and substantial justice, consistent with due process. General jurisdiction Specific jurisdiction Permits a court to adjudicate any claim against D (nationality, domicile, permits only the adjudication of claims that ar or incorporation); an out-of- e related to or arise out of a D's contacts with t state people or corporation can be sued in that forum state on a claim he forum state (cause of action) regardless of whether the claim has connection Where the property is located with the forum state Where the accident occurred Where a company was incorporated and its principal place of busin Purposefully Avail itself of Privilege of ess1 : Conducting Business within that forum

Nerve center test: where is HQ in which hire and make Biz strategies and decision / Muscle test: where to manufacture products
1

Continuous and systematic contacts (corporate operations) within the forum state make it possible for a state to obtain in personam jurisdiction

state (Hanson case), thereby invoking the benefit or protection of law.

Claims is unrelated to those contacts. Substantial K with forum. <Minimum Contacts> International Shoe Co. v. Washington [Replaced the Pennoyers strictly territorial analysis] F: The company was incorporated in Del. and had principal place of business in Missouri. It employed salesmen, and they resided in Washington selling products. Wash. tried to levy on the company. R: The court has personal jurisdiction over Non-resident Corporation which has minimum contacts(voluntary) with the forum state and this does not offend traditional notions of fair play and substantial justice. Continuous and systematic business, the forum state can have general jurisdiction. [Jurisdiction arising out of numerous, but unrelated, contracts is referred to as GJ] Claim arises from the Ks are referred to as SJ Factors in assessing minimum contacts: 1. presence in the state 2. systematic and continuous activities within the state 3. enjoys the benefits and protections of state laws 4. whether it is reasonable to expect the to defend itself in that state * due Process requires that if D be not present within the territory. Int. Shoe Test 1) minimum contacts 2) not offend "traditional notions of Fair play and Substantial Justice" 3) sued upon arise out of the contacts

McGee v. International Life Insurance Co [Insurance] - TX insurance company sued in CA; only had one contract in CA but the court said that was enough because (1) solicited that business (2) court noticed that the s claim arose from the s contact with the forum, call relatedness (3) states interest in protecting its citizens from out of state companies a. s claim was related to contact with forum (contacts create specific jurisdiction) Hanson v. Denckla, 357 U.S. 235 (1958) F: A deceased mother had established a trust fund in DW b/f she moved to FL where she died. Her heirs brought a suit against D trustee in FL court. I: whether DL trustee has minimum contact with FL. H: No. In order to create minimum contact, Ds purposeful, deliberate activities to avail itself of the privilege of forum state are necessary.

2. Absorbing In Rem Jurisdiction Shaffer v. Heitner [Stock] applying the minimum contacts test for personal jurisdiction to in rem test F: P brought a lawsuit in DW court against Ds officer directors of a co. incorporated in DW, with its principal place of business in AZ. Ds are not residents of DW, but shared stocks of the co. H: Neither the mere ownership of shares of stock of a corporation located in the forum state nor holding a position as a director of the corporation is sufficient minimum contacts to support personal jurisdiction over individual s. R: Mere possession of property of a co. does not establish a minimum contact. - D cannot be brought under a juris. of state even though they possess property in a state if the cause of action is not arise out of the property. - Shaffer merely prevents use of quasi in rem jurisdiction when the property is the only contract and the action has nothing to do with the property. (different with case that directly involved with the property in rem jurisdiction) Property in a forum may still suffice to create general in personam juris under minimum contracts assessment. 3. Specific Jurisdiction: The Modern Cases Minimum test involves two discrete: 1. Contracts 2. Fairness World-Wide VW Corp. v. Woodson [Audi] F: P bought a car, which blew up in OK. P brought a suit in OK court. Ds, NY retailer, regional distributor challenge the personal juris. R: Mere foreseeability that a nonresident manufacturer or vendor's product may be used in another forum does not alone establish the minimum contacts to confer subject a nonresident manufacturer or vendor to personal jurisdiction within that forum. - Its necessary Ds purposely availed themselves of privileges of the forum. (Hanson) - Foreseeability that the mobile goods would move to OK somehow is immaterial. foreseeability is relevant but only foreseeability that the could get sued in that forum. - Ds connection with form state must be such that he should reasonably anticipated to be haled into court. Fairness: 1. Burden on D, 2. Interest of forum, 3. interest of P, 4. judicial systems interest, 5. Furthering social policies.

<Substantial Justice and Fair Play> Asahi Metal industy Co. v. Superior Court [Tire-tube] F: P, citizen of California sued in CA court against Taiwanese co. for product liability of tire-tube. The Taiwanese co. files cross-claim against Asahi, Japanese tube valve manufacture. P and Taiwanese company settled, leaving Taiwanese co.s suit against Asahi. R1: Minimum contact Four Justices: purposely directed the conduct toward the forum state (designing for the state, marketing, advertizing) is necessary. [intent to serve the forum state] Four Justices: sell the product with knowledge that product will be eventually sold in CA under the stream of commerce [mere awareness x] it would get to a state Once there are 1) minimum contacts, the second question is the 2) reasonableness and fairness of litigation to prevent the burdens of litigation in a long distance or inconvenient forum; to comport with traditional notion of fair play and substantial justice. R2: Reasonableness and Fairness - 5 justices agree that there was minimum contact. However, they thought it was unfair to exercise jurisdiction. 1. Burden on D. 2. Forum states interests 3. The plaintiff's interest in obtaining relief. This may change if whole case was gone to trial. 4. The interstate judicial system's interest in obtaining the most efficient resolution of controversies; 5. Social policies. Burger King Corp. v. Rudzewicz, [Burger king] F: D entered into K with P to operate franchise in MO. P, Burger Kind corporated in FL brought a suit against D. R: Minimum contact If the K is negotiated and/or to be performed in the forum, that is evidence that the parties have purposefully availed themselves of the forum. Single K is enough for substantial connection. (McGee) A K is sufficient to establish a K unless the K is made through fraud, undue influence, or overwhelming bargaining power. The dispute should arise out of this K Fair play and substantial justice. Reasonableness test Burden of D / forum states interest / Ps interest / judicial systems interest A: D deliberately reached out beyond MI and negotiated with a FL co. Pavlovich v. Superior Court, [Passive website] F: P is sole licensing entity for certain technology of en/decryption. D, without Ps permission, opened decryption technology on its website when he was in ID. Ps principal place of business is CA, while D is a TX resident H1: Posing to a passive web site on the internet is by itself insufficient. (the exercise of juris. Is determined by examing the level of interactivity and commercial nature of the exchange of information). H2: Knowledge that ones tortuous conduct may harm certain industries centered in CA alone cannot establish purposeful availment. Type of Web site: Passive/Active/Interactive sites. 4. General Jurisdiction Goodyear Dunlop Tires H: a connection was so limited btw the forum and the foreign corporation, we hold that it is an inadequate basis for the exercise of general jurisdiction. Perkins v. Benguet Consolidated Mining Co., [Mining Company] F: P, Ohio resident brought a lawsuit against Philippines mining company. The companys activity was continuous and systematic, but limited, part of its general business. The cause of action did not arise in Ohio and does not relate to the corporations activities in Ohio. R: When Ds business in a forum state is sufficient and substantial one, then a state may have jurisdiction over such foreign co., even where the causes of action does not arise from the its activities. Helicopteros Nacionales de Colombia, S.A. v. Hall, [Helicopter crashed accident] F: P brought a suit against Colombian transportation service co. out side of U.S. for wrongful killing Ps decedent. D did not engage in any business nor had any agents in the United State, it did negotiate a K to purchase parts and to train personnel in TX. R: continuous and systematic general business contacts within that forum state creates a general jurisdiction over D. H: Mere purchases and related trips are not continuous and systematic contacts, and it is not sufficient. Burnham v. Superior Court,[Three days]

F: Mrs. Burnham filed a suit against her ex-husband for divorce at CA court. Mr. Burnhan, not a resident of CA, visited CA for the purpose and visited his children who were with Mrs. Burnham. Mr. Burnham was personally served at the moment. H: As long as he voluntarily was in the forum state and was personally served with process in that state, the forum state has a general jurisdiction over D. Scalia approach (decision): presence when youre served is enough by itself based on historical pedigree of Pennoyer Brennan approach: we need minimum contactsfinds minimum contacts because he was in CA and while he was there he purposefully availed himself of the services of the state --dangerously broad!! What if I mail you a letter, have I availed myself of the postal system? Better to keep to strict physical presence standard than lower the standard for minimum contacts. C. Consent as a Substitute for Power: Because PJ is a personal defense, a party may waive it either expressly or by taking actions inconsistent with the defense. Carnival Cruise Lines, Inc. v. Shute, [Cruise lines] F: P purchased ticket for a cruise of D, FL corporation through a WA travel agent. Each ticket included a forum selection clause, requiring all disputes to be settled in FL. P sue D in WA alleging injury caused by Ds negligence. H: A forum-selection clause in a K is generally enforceable if absent fraud, particularly where the clause is a vital part of the agreement entering into practical and economic caluations. A: Passenger will get reduced fares. POLICY ISSUES: i. In terms of fairness the cruise line is better able to afford distant defense ii. Purposeful availmentdid the cruise line advertise in the s home state? Unconscionabilityunequal bargaining power in adhesion contracts D. The Constitutional Requirement of Notice - The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution requires that D receive adequate notice of the litigation. A. Service of ProcessError! Hyperlink reference not valid. i. Process consists of summons and a copy of the complaint ii. Service can be made by any nonparty who is at least age 18 iii. How do we serve an individual? 1. Rule 4(e)(1)incorporates state law; federal court incorporates methods for serving process allowed by the state in which the federal court sits or the state in which service is actually effected 2. Rule 4(e)(2) a. Personal servicehand the process to the anywhere in the state b. Substituted serviceat the s usual abode and you must serve someone of suitable age and discretion who resides there c. AgentYou can serve the s agent iv. How do we serve a corporation? Rule 4(h) 1. serve an officer or a managing or general agent (someone with enough responsibility to be considered reliable for passing along important documents) v. In rem actions: when a federal statute provides for such jurisdiction or when P cannot obtain in vi. vii. personam Juris. Rule 4(n) viii. Waiver of service by mailRule 4(d) 1. does NOT allow service of process by mail (only allows service by mail if states rule is incorporated under 4(e)(1)) 2. if does not return waiver form then she will be formally served and she may have to pay for service ix. Geographic LimitationsRule 4(k)(1)(a)we can serve process throughout the state in which our federal court sits but we can serve process out of state only if a state court in this state could do so (such as long arm statutes); Exceptions: 1. federal statutes allows for nationwide service of process for federal courts 4(k)(1)(c) and (d) 2. Bulge rule4(k)(1)(b)a federal court can serve outside the state in which it sits within 100 miles of where it sits; does NOT apply to original s only to parties being joined later in the case under Rule 14 or Rule 19 3. If no state court could exercise juris. over D, service is effective if the claim arises under federal law and if the exercise of jurisdiction would comply with any limit imposed by the U.S. Constitution. Rule 4(k)(2). Mullane v. Central Hanover Bank & Trust Co.,[ F: Known and unknown nonresident beneficiaries of a trust fund were given notice of the application for judicial settlement of the account by publication in a local newspaper, according to NY law on notice. D knew many of the trustees addresses. R: the notice should be reasonably calculated, under all the circumstances, to apprise interested parties.

H: Notice by publication to known nonresidents is inadequate b/c it is not reasonably calculated to reach those who could easily be informed by other means. J: NY state law on notice is unconstitutional. E. Self-Imposed Restraints on Jurisdictional Power 1. Long-Arm Statutes as a Restraint on Jurisdiction 1. State Gibbons v. Brown, [Two years after accident] F: D, a Texas resident had brought a lawsuit in FL against Ps husband two years ago for negligent driving in which D and P were injured. P, a FL resident, brings a lawsuit against D in FL court for negligent guiding. L: FL long-arm statute permitted jurisdiction over those engaged in substantial and not isolated activity within the state R: First examine whether being within the coverage of long arm statute is met, and second constitutional due process. A: P was not involved as a D in prior lawsuit. Ct finds that D was engaged by bringing the lawsuit in FL, but is not longer.

2. Federal Dee-K Enterprise [P sued American and foreign manufacturers and distributors of the thread in antitrust liability] For Alien D who has no sufficient contact with any State but sufficient contact with U.S. : Rule 4 (k)(2) covers :: Serving summons or filing a waiver of service establishes Psn jrd over D When 1) no Psn jrd 2)When it is consistent with U.S. Constitution (5th Amendment) and law. - Psn jrd is established on the basis of aggregated, national contacts when a statute authorizes nationwide service of process. - Venue: 1391 (d) which provides that "aliens may be sued in any district" : alien D cannot challenge venue (GoVideo) 3. Declining Jurisdiction: Transfer and Forum Non Conveniens A. Forum Non Conveniens --------------------------------------------------------------------------------------------------------------1391 Venue- Deciding judicial district within that state Personal Jurisdiction Venue Similarity Determine where litigation will be taken place Determine where litigation will be taken place Locate a particular judicial district court within that Difference Locate which state has a jurisdiction state Source Form US Constitution (Constitutional source) From Venue Statute (statutory source) 28 U.S.C. 1391 1. 28 U.S.C. 1391: Typically tries to place suits in a district court; a. A civil action founded solely on diversity of citizenship may be brought in a judicial district in which; (1) any D resides, (based on Residence, not citizenship) (2) substantial part of events giving rise to the action if all D reside in the same state (3) any D is subject to PJ at the time the action commenced b. A civil action NOT founded solely on diversity of citizenship (1) same (2) same (3) any D may be found if there is no district c. corporation shall be deemed to reside in any judicial district in which it is subject to PJ at the time the action commenced d. An alien may be sued in any district court 2. 1392-When suit involves property in multiple districts of same state, may bring suit in any of those districts. 1404 Change of Venue (Transfer) Allow a district court to transfer the case to another federal district for convenience of parties or witnesses or interest of justice - only transferable within the same system: state1 state2, or federal district court 1 federal district court 2 Proper venue far better venue for convenience Piper Aircraft v. Reyno, [Scotland] F: Scotland Ds moved a wrongful death action against D, American manufacturer in CA stat ct. The case was moved to CA fed ct., and then to PA fed ct. 1404(a). D takes motions to dismiss on the ground of forum non conveniens. H The possibility that the law of alternative forum is less favorable to P is not a factor in a decision on forum non conveniens. Factors Private interest: convenience to the parties and witness, location of the event and evidence

 Public interest: administrative difficulties. A: For private: relevant evidences are in Stcotland, Ps are from Scotland. For public: ct will handle both PA & Scotland law. [Balancing Test] Private Interests (Oppressiveness and vexation to a defendant: convenience to the parties and witnesses, location of the evidence, and where the event in controversy occurred) and Public Interest affecting the courts own administrative difficulties and legal problems, avoidance of unnecessary problem in application of foreign law, unfairness of burdening citizens in an unrelated forum with jury duty Note In order to dismiss based on forum non conveniens, the court must ascertain that there is an alternative forum available to hear the case. a. Differences in remedy: In the federal courts, differences in remedy bar dismissal only if they effectively deny P any rights in the alternate forum b. Conditional dismissal: Lack of personal jurisdiction or expiration of the SOL may prevent P from brining her claim before the new court. Thus, the court may grant Ds motion to dismiss only if D agrees not to challenge lack of personal jurisdiction in the new forum. Chapter 3 Subject Matter Jurisdiction Personal Jurisdiction Subject Jurisdiction Due Process Clause Article III (!4th Amendment) Section 2 Two main types: Suit between different states/ between foreign and state. Section 2 lists nine categories of federal jurisdiction. FRCP 4 28 U.S.C. 1331(fed. Q), 1332 (Diversity) State Long-Arm Statutes - Always rises from one of these.

Constitutional Source

Statutory

Terms of Jurisdiction Art III Juris. The jurisdiction of federal curt set forth by the Constitution Art III Court The one that created by the Congress. Exclusive juris. Particular claims that only Fed. Court can hear it (Antitrust, bankruptcy, patent etc) Supplement Juris. If there is juris. over one claims, they are also juris. for claims related to it. E.g. A sues B with federal claims but also sue with state tort claims. Inferior Fed court Underneath of Supreme Court (appellate / district court) - Personal jurisdiction is waiveable but subject-matter jurisdiction is not waiveable. A. Concurrent jurisdictioncases arising under federal law can be brought either in state or federal court B. Exclusive JurisdictionCongress has made federal court the exclusive forum for certain actions such as bankruptcy and antitrust cases C. Diversity of Citizenship Constitution Section 2 of Article 2 allows the federal courts to exercise juris. over Coveroversis bet. Citizens of differ. state. Statutes 28 USC 1332(a)(1) creates federal court jurisdiction over controversies between citizens of different states and citizens of a state and foreign citizens (codifies Art III 2) i. Citizens of different states 1. Complete diversity rulethere is no diversity if any is a citizen of the same state as any [However, section 2, requires only minimal diversity] There are exceptions! 2. Citizenship a. US citizens are citizens in the state of their domicile (only one domicile at a time, everyone has one, retain old domicile until you get a new one) i. Presence in the state ii. Intent to make that state your permanent home iii. Test for domicile: Actual residence plus the intent to remain. b. Foreign Citizens: i. 28 USC 1332(a) was amended in 1988 to provide that an alien admitted to the US for permanent residence is deemed a citizen of the state in which he is domiciled. ii. US citizens who reside in foreign countries may not claim diversity jurisdiction. (who is domiciled[more permanent] in another country) c. Citizenship of a corporation: defined by statute 1332(c)(1) i. All states where it is incorporated ii. A corporation that has its principal place of business in a state other than its state of incorporation has two citizenships. iii. One state where it has principle place of business (only one principle place of business) 1. nerve centerexecutive center of the corporation 2. muscle centerwhere most activities are conducted

total activities testuse the nerve center unless all corporate activity is in a single state d. Partnerships: Section 1332(c)(1) does not applied here. One must consider member of all of the partners or members of the organization. ii. Amount in Controversy 1332(a)(1) 1. amount must exceed $75,000 not counting interest and costs (must be $75,000.01) does include punitive damages 2. Courts view the allegations in the pleading as controlling and do not speculate about the likelihood of collecting what is asked for; must appear to legal certainty that claim is for less than statutory amount to dismiss. a. s ultimate recovery is irrelevant to jurisdiction 1332(b) may have to pick up the other sides costs if the judgment is under $75K 3. Aggregationadding two or more claims to exceed amount in controversy a. Aggregate claims if it is one versus one (even for unrelated claims) the amount in controversy is satisfied if the total value of the claims exceeds. b. Multiple Ps: May not aggregate their claims except joint claims. c. Mutiple s with a common interest or single title/ right are aggregated (total value of interest in the amount in controversy) 4. Counterclaims: a. Compulsorymay be heard regardless of amount when s claims meets statutory requirement b. Permissiverequires independent basis for jurisdiction (supplemental under 1367) D. Federal Question 1331 i. Case must arise under federal law (federal statute or Const. claim) 1. Well Pleaded Complaint Rule a. look only at the Complaint b. it is the s claim that must arise under federal law (Necessary to Ps case) i. essential element for Ps claim is the key! 2. Source of Federal Questions: a. Constitution: Whose constitutional right are violated/ When the Constitution itself is the source of [s claims. b. Federal law: Statutes (Congress) / Federal common law. c. Treaties: Treaties that has adopted by the Congress. 3. Federalizing Warpquestion that arises under state law but contains federal interest or turns on interpretation of federal law may be allowed in federal court. a. Declaratory judgmentmerely a declaration of the relative rights of the parties. i. To determine if a declaratory judgment case is a fed question, a court looks behind the declaratory judgment claim to the essential nature of the lawsuit. 3. Louisville & Nashville Railroad v. Mottley, 211 U.S. 149 (1908) F: P had been compensated with lifetime free pass from train accident by D. But, D refused to honor free pass under Federal regulation preventing free pass no more. P brought a suit at fed ct. L: 28 U.S.C 1331 Federal Question (Federal District Cts jurisdiction) H: If the subject matter jurisdiction is about federal question, Ps cause action should arise out of the federal question. Anticipated D under federal is insufficient. Their claim is simply breach of contract, the federal issue is an anticipated defense; Alleging that a defense will be based on federal law is not sufficient to raise a federal question Well-Pleaded Complaint Rule: if the complaint is well-pleaded in a proper way (not the Ds anticipated defense) and federal issue is essential part of cause of action, the federal court has subject matter jurisdiction. Challenging Fed Sub Matter Jrd A. Either by Rule12(b)(1) - lack of subjt matter jrd. Or Rule12(b)(6) - failure to state a claim : when there is any basis for a Fed claim, Ct should examine the claim on (6) B. Unlike personal jrd, Lack of Sub matter Jrd can be raised anytime. NOT waived. C. Collateral Attack may be available with entire default judgment. D. If case is dismissed, P is free to refile the suit in State ct. (unlike personal jrd. state ct in same state is bound by fed dist cts decision)

1)

1. Diversity Jurisdiction 28 U.S.C. 1332 (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state; .. 1) General

Redner [is P CA citizen or France citizen??] US citizen with foreign residence cannot claim diversity jurisdiction as a citizen of a foreign state ( 1332(a)(2) B. Time for measuring citizenship is the date the complaint is filed. (P can move before filling) C. Complete Diversity is required (from decision of Strawbridge case) though there are a few exceptions. 2) U.S. Citizen at least, one party should be US citizen for diversity jrd. Saadeh v. Farouki [P is a Jordanian residing in MD with permanent residency, D is a Greek] Intention of 1332(a)permanent resident is deemed a citizen of domicile state- is to limit Fed jrd not to extend. There is no diversity when resident-alien v. alien (Cts split, but Saadeh is majority) 3) Amount in Controversy - greater than $75,000 A. If from the face of the pleading, it is apparent to a legal certainty that cannot recover the amount, the suit is to be dismissed. St. Paul Mercury Indemnity Co. B. Aggregation of the amount. Single P Single D multiple claims : Yes 2 Ps single D : Not aggregated. separate & distinct A. Supplemental Jurisdiction 1367when a federal court has proper original jurisdiction over a claim, it may hear all other claims that form part of the same case or controversy including cases involving joinder or intervention. ii. Federal claim must support federal question jurisdiction iii. Federal and non-federal claims must arise from the same nucleus of operative facts such that they can be tried in one proceeding. iv. Discretionary factors: 1. Issue of state law predominates over issue of federal law 2. Judicial economy and fairness to the litigants (prejudicial) v. TEST: when we see a non-federal claim 1. Does 1367(a) grant supplemental jurisdiction? Yesif it meets the Gibbs test of common nucleus of operative fact 2. Does 1367(b) remove supplemental jurisdiction? a. if original jurisdiction is based on diversity: no supplemental jurisdiction over claims by against persons made parties under 14, 19, 20, or 24 II. Supplemental Jurisdiction Started from the case law but codified in 1367. 1367 (a) Dst ct shall have supp jrd over all other claims that are so related to claims.. that they form part of the same case or controversy (b) in solely Diversity case, Dct shall not have supp jrd when exercising supp jrd would be inconsistent with jrd requirements of 1332(Diversity) In re Ameriquest Mortgage Co. [Count I was TILA Federal Claim, but II.III were based on conspiracy to inflate the appraisal of house which were state claims] Held: Dct has supplemental jurisdiction. There is a sufficient nexus between P's state law claims and her TILA claim to support supplemental jurisdiction. RULE: So long as facts are both common and operative, the connection may be sufficient to confer supplemental jurisdiction. ** Supplemental jrd may not be applied for ( 1367 (c)) - Novel or complex Q. - Claim substantially predominates over the claim over which the Dct has original jrd. - Ct has dismissed all claims over which it has original jrd. - Other compelling reason. A. Removala in state court can have the case transferred to federal court i. Transfer distinguished: Removal should be distinguished from transfers. Transfers venue from one fed to another / Removal state court to fed court. Note*** Only D may remove a case The Court applies the well-pleaded complaint rule to determine if the complaint states a federal Q. Exceptions: A federal law usually preempts only a specific state law. If the complaint is couched purely in terms of state law but in fact contains a disguised federal claim. ii. 1441 : 1. (a) can remove to the district court in which the action is pending If any Ds is a citizen of the state in which the state court action is pending, removal is impossible. 2. (b) may remove regardless of diversity if there is a federal question; but not if the case is filed in the state in which they are domiciled 3. (c) Dist court has discretion to hear or refuse to hear removal claims brought under supplemental jurisdiction iii. Rules of Removal: 1. Only Up: removal is a one way street goes only from state to federal; if removal is improper the federal court remands it to the state court

2. 3. 4. 5.

6.

Straight Up: we remove only to the federal district embracing the state court where the case was filed s Only: all s must agree to the removal; s cannot remove Timely: you must remove within 30 days of service of the document that first makes the case removable ( 1446) Coulda Rule: you can remove a case if it could have been brought in federal court however, two exceptions (apply in diversity cases, not in FQ) a. 1441(b): no removal if any is a citizen of the forum (no local rule) b. 1446(b): no removal more than one year after the case was filed in state court (stupid because encourages joining a local defendant and dismissing a year later) Supplemental: dist court has discretion to hear

Caterpillar, Inc v. Lewis [Dct had refused to remand a case to state ct when there is no complete diversity, but when judgment was entered that D had been dismissed] Ct error to refuse to remand a case improperly removed is not fatal to ensuing adjudication if fed jrd requirements are met at the time judgment is entered. * Distinguish from Capron (p.187) - Judgment is invalid because by the time entered to judgment, there was still the defect on diversity jrd.

Chapter 4 The Erie Problem Purpose: To clarify which law applies to federal diversity cases (solely based on diversity), federal or state law? Federal court uses substantive statute of state (judge-made common law of state as well) in federal diversity cases. If it is federal question issue, the court applies federal laws. (But, if supplemental jurisdiction claim joined to original federal issue claim, the court allows the supplemental claim and applies relevant state law to decide it.) Question is about the choice of law. (Up until now, our discussion was about the choice of forum) Vertical: In a diversity case, whether federal law or state law applies. (Erie) Horizontal: whether State As law or State Bs law should apply. Level 1: Whether the Constitution has the answer to the question Level 2: Whether Congressional legislation has the answer to the question Level 3: If none of the above has the answer, its up to the courts. (Very complicated and unclearEriehow courts make the choice of law when there is no Constitutional or Congressional answer)

A.

Erie Problem: Discourage forum shopping by clarifying which law applies to federal cases solely based on diversity; federal or state law? I. The general principle is that the federal court must try to determine how the states highest court would determine the issue if the case arose before it today. II. Prof. Note IV. 1. The Erie doctrine concerns what law--state or federal--governs cases in federal court. V. 2. The answer to that question is easy when a federal question claim is at issue -- both federal substantive and procedural law apply. VI. 3. The question is a bit more complex in cases where subject matter jurisdiction is based upon diversity of citizenship.But the general rule in diversity cases -- a result that is said to be required by the Rules of Decision Act and perhaps has some constitutional grounding as well-- is that state law (including state common law) applies on "substantive matters" and that federal law governs on "procedural" matters. Thus, for example, in a state law tort claim filed in Federal court based on diversity, the common law of the state in which the federal court sits would govern the substantive tort law. But federal law (i.e., the Federal Rules of civil procedure) would govern such procedural matters as how many days the defendant had to respond to the complaint or the relevant standards for grant or denial of a motion for summary judgment or a motion for judgment as a matter of law. VII. 4. Here are a few special applications of the Erie rule as developed by the federal courts: -In applying state substantive law in a diversity case, the federal court also applies the choice-of-law rules of the state in which it sits -When a diversity case is transferred from one federal court to another (under section 1404) the transferee court still applies the substantive law (including choice-of-law rules) of the state where the transferor court sits. (Thus the transfer should not theoretically change what law substantive law applies.) -the line between whether a rule is "substantive" or "procedural" for Erie purposes is sometimes hard to draw, and the Supreme Court has struggled with the best way to describe when state, as opposed to federal. law will apply. The fact that a rule might be considered procedural for other purposes does not

necessarily mean that it will be regarded as procedural for Erie purposes. As a few examples, the Court has held that statute of limitations and arbitration or forum selection clauses are matters of substantive law for Erie purposes, whereas the rules governing how a defendant is served are procedural for Erie purposes..

A. State Courts as Lawmakers in a Fed System Rules of Decision Act : 28 U.S.C. 1652 Law of several states shall be regarded as rules of decisions in civil actions in the court of U.S. in cases where they apply Erie Railroad v. Tompkins [Accident in Penn. D walked by train road, and strut by open door of train. P chose N.Y. to sue. Penn law - D is liable only for wanton negligence, U.S. Dct of N.Y. - requires ordinary negligence] Overruled Swift v. Tyson] Except in matters governed by Fed constitution or fed acts, law to be applied in any case is the law of the state. There is NO federal general common law. basically, fed Ct should be bound by state's substantive law including common law and follow what the higher ct of the State would decide. Two primary purposes of Erie doctrine are 1) to prevent forum-shopping and 2) to avoid inequitable administration of the law.) If fed. Court is free to construe the state law differently, it is just like a Swift decision.

Guaranty Trust Co. v. York Statute of Limitation, Choice of law governed by state law [P sued a bond trustee in fed diversity action. N.Y. substantive law governed. D invoked the N.Y. Statute of Limitations. P argues it does not bar the case because it is on "equity side" of fed court.] High-water mark of Erie-compelled deference to state cts State enactment vs. Fed Practice RULE : When Fed Ct hears case based on Diversity, Outcome of litigation in fed ct should be Substantially Same, as long as legal rules determine the outcome of litigation. "OUTCOME DETERMINATIVE TEST" 'Procedure' is characterized as Manner and means by which a right to recover. BUT it is immature whether it is substantive or procedure. No matter how it might be labeled, Q is whether it significantly affects on result of litigation. Byrd v. Blue Ridge Rural Electric [Diversity case based on S.C. Workmen's Compensation Act Injury sustained at work. Under SC law immunity under the Act is Q of law] TESTS 1. States Substantive law that intended to be bound up with the legal rights and obligation 2. Outcome Determinative Test 3. Affirmative countervailing consideration : Here, Fed is independent system for administering justice and the manner is under influence of 7th Amendment. (Q of fact is to Jury) Rule Enabling Act (28.U.S.C. 2072) The supreme court shall have the power to prescribe by general rules, the forms of process, wits, pleadings, and motions, and the practice and procedure of the district courts of U.S. in civil actions. Such rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury. Hanna v. Plumber [Diversity, service process: Mass state rule: in hand vs. Fed rule: 4(e)(2)] What is procedure? Sibbach v. Wilson (p. 241) Q is whether a rule really regulates procedure - the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them. Unless, FRCP is under this definition of the procedure rule, and under Constitution (which never held otherwise) Fed Civil Procedure Rule prevails over state procedure rules. Fed rule prevails over state law as long as it is constitutional and within REA.

Semtek Intl. Inc. v. Lockheed Martin Corp., [dismissed for SOL] Fact: CA federal court dismissed for statute of limitations, re-file in MD state court with longer statute of limitations Issue: whether the claim-preclusive effect of a federal judgment dismissing a diversity action on statue-of-limitations grounds is determined by the law of the State in which the fed ct sits? Holding: The claim-preclusive effect of a final judgment on the merits by federal court in a diversity action is determined by the law of state in which the federal court sits. But the claims remain actionable for consideration in an appropriate foreign

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jurisdiction. Rule 41(b) [involuntary dismissal] does not determine the claim-preclusive effect of the CA federal court judgment in the Maryland state court. The Court held that the claim preclusive effect of a federal court judgment in a diversity case generally would be governed by state law, not federal law. if the case is dismissed due to the state statutory limitation, the case is not considered to be dismissed in merit therefore the res judicata (claim preclusion) is not activated 41(b) only means that the case cannot be brought to only to a state that state statute of limitation prohibits the case California Law governs whether a claim dismissed by a California Federal Court may be relitigated elsewhere To allow an interpretation of Rule 41(b) that deemed all federal dismissals to be on the merits by default, and therefore claim-preclusive, would violate the federalism principle of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), by causing substantial variations in outcomes between litigation in state and federal courts that would likely influence a party's choice of forum. The federal question case which was dismissed on the merits in federal district court cannot be brought in other state courts. [Res Judicata, Claim preclusion] BUT in the diversity case which was dismissed on the merits in fed district court, you still have chance to relitigate on the same cause of action in appropriate foreign state having jurisdiction over D. In diversity case, Adjudication on merits on SoL only precludes petitioner from pursuing the same claim in the same court. In this case Dst cts decision is given same effect as the other state's ct. A state court need not give a fed cts decision based on another states laws a broader scope than that state would give it. Based on fed common law. Need not give same effect fed ct would give it unless strong fed interest. ( If, CA law allows to refile the case following traditional rule, P is allowed to re-file on different jrd) SUMMARY of Chapter 4. Where State law & Fed rule in conflict - State statute & common law prevails.. if 1) law is to be bound up with legal rights, obligation 2) outcome determinative procedure. - Even if outcome determinative, Affirmative countervailing consideration makes fed rule prevail. In Procedure rule, FRCP is prevails if 1) it is really procedure, 2) under Constitution. Chapter 5 Incentives to litigate 1. Substitutionary Remedies, monetary damage o Compensatory damage - To compensate the harm. o Liquidated damage - generally in K case. Based on liquidation agreement. o Punitive damage - To punish wrongful D and deter future action. Generally, it requires "willfulness" or some malicious intent. In some jrd, the evidence of Ds wealth is allowed to decide how much a given award will hurt.

Specific performance Law Chancery (Ct of equity) Substitute damage Specific remedies Monetary damage Injunction, Replevin Constructive trust (as parties agreed) Ejectment Rescission, cancellation, reformation of K Mandamus Accounting Habeas corpus Declaration of quiet title Decided by judge In order to request an equitable damage, P has to show the legal remedy is not adequate. And it usually have to be pleaded. And ct prefer legal to equitable remedies. A case seeking solely equitable relief is usually tried by judges not jury. Sigma Chemical co v. Harris [D contracted not to work in a competitive company for 2 years after leaving the company and not to disclose any confidential information. D violated the covenant] Ct ordered a permanent injunction. - Balancing test - harm to D by Injunction if granted vs. harm to P by not granting injunction - P should show that he has no adequate legal remedy. 2. - A Party who refuse to obey injunction can be put in jail for contempt of ct. RULE 65 [Injunction] Ct must state why it issued. R: The determination of whether to issue an injunction2 involves a balancing of the interests of the parties who might be affected by the courts decision. (Consideration of the hardship on the plaintiff if relief is denied as opposed to the hardship to the defendant if relief is granted)

A court order issued to prevent or compel an action.

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Standard for granting injunction 1) The moving party will suffer an irreparable injury if the relief is denied; 2) The moving party will probably prevail on the merits; 3) The balance of potential harm favors the moving party, and depending on the nature of the case; 4) The public interest favors granting relief By demonstrating either: 1) A combination of probable success on the merits and the possibility of an irreparable injury if the relief is not granted, or 2) The existence of serious questions going to the merits and that the balance of the hardships tips sharply in its favor. 3. Declaratory Relief Declaratory Judgment Act, 28 U.S.C. 2201, 2202. Declare the rights and other legal relations It requires Fed jrd, so Ct can adjudicate only if declaratory judgment is based on interpretation of Fed statute or diversity) 2202 RULE 22 : party can request further relief. (like monetary damage) Declaratory judgment is decided by judge alone. RULE 57 [Declaratory judgment] existence of another adequate remedy does not preclude a declaratory judgment that is otherwise appropriate 4. Financing Litigation R54(d) prevailing party should be allowed to recover costs. American Rule : Each Party bear its own attorney fee. Exceptions 1) by Contract 2) by common law(groundless suit..) 3) by statutes ** Fee shifting Statutes Statutes may have fee shifting clause, "generally in any action which has resulted in the enforcement of important right affecting the public interest Eg) Enforcement of Civil right, 42 U.S.C. 1988 "Judge may award a prevailing party's fee" 1) Discretion? Ct should ordinarily award such fee unless special circumstances render it unjust. 2) Statute does NOT create a symmetrical entitlement because Leg intent is making the civil right act easier. (Even if P loses, P does not have to pay for Ds attorney) *a exception that creates two-way shift frivolous, unreasonable, or groundless or that the P continued to litigate after it clearly became so. 3) In the case of Ds offer of the settlement, RULE 68 : More than 10 days before case comes to trial, D may offer the settlement, if accepted, it becomes judgment of ct by consent decree. * Unaccepted offer - If judgment is for offeree is NOT MORE favorable than offer, the offeree should pay court cost after the offer was made. (Generally it means 1920 costs) Sup ct (Christian) held that in some cases (at least Civil Right Act case for sure), fee shifting statutes define attorney's fee as part of the costs affected by a Rule 68 offer. If judgment is for offeree is not more favorable than offer, P can still recover attorney's fee this up to the date of offer was made. After the date of offer, P should pay D's ct cost. 5. Provisional Remedies (relief pending final adjudication of the dispute) William Inglis & Sons Baking Co. v. ITT [Ps filed antitrust action agst various competitors and moved for a preliminary injunction. P content D is guilty of discriminatory and blew-cost pricing of their 'private label' bread products. D defended that it was merely meeting competition] * Preliminary Injunction Tests Four Factor Test Balancing equity test 1. P will suffer irreparable injury 1. Either combination of probable success and the 2. P will probably prevail on the merit possibility of irreparable injury OR 3. Balancing equities; D will not be harmed more that P 2. that serious questions are raise and the balance will, AND of hardships tips sharply in his favor. 4. Granting the injunction is public interest. Here, Dct found 2) was missing under Four Factor Test, ct ordered to consider Balancing Test where probability is not a mandate. RULE 65 : (a) Preliminary Injunction (b) TRO Temporary Restraining Order : allowed to ONLY immediate irreparable injury. Not to exceed 10 days. (c) Security bond (Moving party needs to put security bond) (d) Motion should include terms, reasonable details, action asked to injunction for. * Provisional monetary reliefs (p.321) Attachment : seizure of property Garnishment :asking third party(usually bank..) not to pay D R: It is only necessary that the party seeking a preliminary injunction has a fair chance of success if the harm that may occur to that party absent a preliminary injunction is sufficiently serious. Fuentes v. Shevin [Fuentes purchased a gas stove and stereo from a same store. When she defaulted her installment payment, the store filed a writ of replevin under FL law and made a sheriff to seize the goods. Under FL law allowing summary seizure of goods or chattel under a writ of replevin, P needs to simply fill a form with a security bond in double and get a ct clerk to issue the writ] Q is whether FL & Penn law deprives property w/o due process. 1. Even temporary, deprivation of property is under 14th as long as it was significant interest

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2. Opportunity for that hearing must be provided before the deprivation at issue takes effect. Security Bond requirement are hardly a substitute for a prior hearing. 3. It is not Extraordinary situation ct may allow outright seizure. Three Exceptions to secure governmental or general public interest A special need for very prompt action State keeps strict control over its monopoly of legitimate force. H: unless those creditors have tested their claim to the goods through the process of a fair prior hearing, seizure NOT is allowed. kinds of notice and hearing that are aimed at establishing the validity or at least the probable validity of the underlying claim against the alleged debtor. RULE 64 : Seizing a person or property. Judge can grant provisional remedies according to state law. R: In order to comply with due process, notice and an opportunity to be heard must be provided in a meaningful time and in a meaning manner prior to seizure of any protected property interest. Chapter 6 Pleading

A. Pleading RULE 8 "short and plain statement of the claim showing that the pleader is entitled to relief" Haddle v. Garrision [Haddle filed a suit against former employer under Civil Right action, but he was at-will employee which Ct held that this employment is not property under Due process] Dst Ct (S.D. Ga) : Ct dismissed for failure to state a claim. And dismiss the claim under fed law and dismiss w/o prejudice* a state claim. *(When all fed claims are dismissed, judge "MAY" decline Supplemental jrd 1367 (c)---> it is discretion.) Sup CT : Reversed. Fact that employment at will is not "property" for purposes of the due process clause (constitutionally protected property) does not mean that loss of at-will employment is not an injury.
Bell Atlantic Corp v. Twombly [Ps were subscribers to local telephone and internet services. They alleged D were violating antitrust law -fixing price. P presented only possible parallel conduct of Ds and did not present any statement for actual agreement which critical requirement of the law.] GR : Specific facts are not necessary; the statement need only give D fair notice of what the claim is and the grounds on which it rests Holding: (at least, in Antitrust action or in high risk of abusive litigation cases) Short and plain statement of the claim should contain enough facts to state a claim to relief that is plausible on its face. P made it just conceivable not plausible. (Plausible when facts raise reasonable expectation that the discovery will recover illegal conduct) : Ct does not change Rule 8. on certain subjects understood to raise a high risk of abusive litigation, P must state factual allegations with greater particularity than Rule 8 requires. Stradford v. Zurich Insurance Co. [P(dentist) filed suit to recover the property damage on his office cause by water from frozen pipes. D(insurer) counterclaimed that P knowingly devised a scheme and artifice to defraud D by false pretense and representation.] Rule 9 (b) in alleging fraud or mistake a party must state with particularity the circumstances constituting fraud or mistake. Time/ Place / Nature of misrepresentations must be disclosed. According to Rule 15 ("leave to amend shall be freely given when justice so requires") : Ct allowed D amend the counterclaim. Jones v. Block [PLRA allows litigation only when prisoner exhaust prison grievance remedies.] I: whether Exhaustion under PLRA is a pleading requirement the prisoner must satisfy in complaint or affirmative defense D must plead and prove. it is affirmative defense. GR: Whoever has the burden of pleading an element of the claim will also have the burden of producing evidence to demonstrate that allegation.

B. Ethical limitation Rule 11 : regulation of lawyer & client + Sanctions. Even though it changes that substantive right, it still constitutional, b/c it incidentally affect ligigants sub rights if it is reasonably necessary to maintain the integrity of that system of rules. Walker v. Norwest Corp [Ps Attorney filed a suit in the fed dist ct without pleading complete diversity of citizenship. In fact, the facts he represented tended to show there was no complete diversity (many D are residence of South Dakota, Massey's clients' state.)] Norwest Corp warned him and moved to dismiss and Rule 11 sanction. Ct granted with monetary sanction. + R 11 is not granted automatically, one of parties has to seek it by a motion for sanction. P's attorney asked Ct to finds out who is residence of D. Ct (of course) declined. Christian v. Mattell, Inc [in copyright infringement suit, Ps alleged copyrighted doll came out later than Ds copyright] Here, Ct identified different misconducts of P's attorney. Rule 11 does not sanction for other misconducts but only for pleading, written motions and other paper. Attorneys behaviors are not included. 3 Types of Penalties. 1) RULE 11 - limited to papers signed. 13

2) 3)

1927 - imposition of cost. Who "multiplies the proceedings in any case unreasonably and vexatiously. " Ct's "inherent authority" : ct must make an explicit finding that counsel's conduct constituted or was tantamount to bad faith.

C. Responding to the Complaint Default (Rule55) Pre-Answer : Motions under Rule12(b). Once a pre-answer motion is filed/denied, responsive pleading must be served within 10 days after notice of the courts action. If R12(b) (except Subj Matter Jrd, (6)(7)) is not filed, it is waived. 3. Answer An answer may contain any of the Rule12 motions, general or specific denials (Rule8(b)(3)), affirmative defenses(R8(c)), counterclaims(R13), cross-claim or third-party claims. Zielinski v. Philadelphia Piers, Inc F: P was injured while he was operating forklift owned by Carload Contractor. P filed complaint for personal injuries. P sued PPI but it turned out that Carload owned the forklift. D simply denied Paragraph5 ("a motor-driven vehicle, forklift, owned operated and controlled by D, was so negligently and carelessly managed ..) when P found out, SoL is already passed for Carload. RULE 8(b)(4) Party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest. In the case of Improper/ineffective answer: allegation of agency in the complaint requires a statement to the jury that agency is admitted where an attempt to amend the answer is made after the expiration of the period of limitation. Principle of equity requires D to be estopped from denying agency since otherwise, its inaccurate statement will have deprived P of his right of action. 4. Reply R12(b)(6) answer to claim, so, if p wants to attack a affirmative defense w/o merit, P should do it under R12(f). R12(b)(6) can be used answer against a counterclaim.
1. 2. 5. Amendments Beeck v. Aquaslide N Dive Corp [P was injured on a waterslide he believed to be made by D. When D answer D admitted to make and sell it. After a year and half, during the discovery, D filed motion to amend answer so it denied manufacturing it. It was already after pass of SoL. Jury found for D. After Aquaslide was granted leave to amend its answer, it moved for a separate trial on the issue of manufacture of the slide (Rule 42(b))] Rule15 (a)(2) in all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The Ct should freely give leave when justice requires so. Foman v. Davis (Sup Ct case) : In the absence of any apparent or declared reason - such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by previous amendment, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment.. The leave sought should be "freely given" in discretion of Ct. Here Aqua concluded that it was their manufacture based on 3 different insurance companies. No sign of bad faith. So, ct allowed the amendment. * Relation back cases Rule15(c)(1) amendment to a pleading relates back to the date of the original pleading when "amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out in original pleading" RULE 15(c)(1)(C): changing party or naming of the party is allowed when R15(c)(1)(b) & within R4(m) period(120days) against the party (i) received the notice of action and (ii) knew or should have known that the action would have been brought against it but for a mistake concerning the proper party's identity. Moore v. Baker [P got injured from the surgery. P filed complaint alleging that D had violated Informed consent law. After D moved to summary judgment, P moved to amend her complaint to assert allegations of negligence after SoL already passed.] here, Moore's new claim does not arise out of the same conduct, transaction, or occurrence as the claims in the original complaint. So P cannot file negligence claim after SoL. Bonerb v. Richard J. Caron Foundation [D sued a rehabilitation facility in Westfield negligence in the slip and fall case. Later P moved to amend his complaint to add a new cause of action for counseling malpractice after Penn's SoL has passed.] it arose from same conduct or transaction. (??) Chapter 7 Discovery Formal Discovery Liberal pleading standards Short and Plain Forms of discovery 1. Interrogatories : Rule 33 : 25 Q, only bt parties. Seeking answer under oath. Usually used to identify persons and documents in the possession of the other side. 2. Request of production document, thing, land : Rule34: not limited numbers or party : 3. Requests for Admission: Rule36 : bt the parties, in writing, relatively cheap, limited usefulness Request to admit the truth of any matters within the scope of Rule 26(b)(1) relating to fats, opinion. Used best to eliminate essentially undisputed issue. (like PPB of D corp.)

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4. Deposition Rule27-32 R30(a)(2) w/o a leave, no more than 19 deposition, a day of max 7 hours, no second deposition for a same person. A. Summary and Basic Purpose: 1)Rule 26: Discovery: Duty of Disclosure (Relevance is the key, relevant to any claim or defense, the subject matter of the action) a. Scope and limits of Discovery Relevant information need not be admissible at trial, as long as it is reasonably calculated to lead to admissible evidence (even if it later turns out inadmissible) b. Required Disclosures: basic info, experts witness, trial evidencew/n 14 days (if failed, R37(c)(1) disclosure is precluded) * When a party is required to exchange initial disclosure? R16(b) Judge shall hold a scheduling conference within 90days after a Ds appearance or 120 days after service. R26(f) : parties meet themselves to discuss the case as soon as practicable and in any event at least 21 days before a scheduling conference is held. R26(a)(1)(c) : Initial disclosure required at or within 14days after R26(f) conference. party is required to exchange at the least 7 days before the scheduling conference and at the last 4 month after the complaint is served. When D has appeared (filing answer, or other motion) no later than 85 days. Rule 26 (b) Discovery Scope and Limits discovery is allowed for non-privileged matter that is relevant to claim or defense (w/o cts approval) Protective orders Upon motion, court may issue protective order to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense; duty to disclose newly acquired info; duty to hold discovery conference before conference w/ judge; R26(e) Supplementing Rule 27: Depositions Before Axn or Pending Appeal- (first petition ct) Rule 28: Persons Before Depo can be taken In US: officer auth to give oath or person apptd by ct Outside US: pursuant to trty; by for or US officer after notice; by person commissioned by ct 4) Rule 29: Stipulations to Procedure (ptys can stipulate to modify FRCP) 5) Rule 30: Deposition upon Oral Questions A witnesss out-of-court statement for later use in a court or for discovery purpose a. Permission: Need leave (court permission): already deposed, or beyond time limits & exiting US b. Notice: to each party stating time, place, method. If corp, govt, or partnership, must designate one or more who can answer questions c. Exam and Cross examine: same as at trial. Note all objections, but continue d. End or limit: instruct client not to answer only if privileged or scope limited by court. If bad faith, annoy, embarrass or oppress the deponent, officer can stop or limit (expenses); lmtd to one day of 7hrs e. Review/Changes: can alter in form or substance w/in 30 days f. Certification and Delivery by Office g. Failure to attend: if call depo and not show (and other side does) or forget to subpoena witnesses, pay expenses 6) Rule 31: Depositions upon Written Questions - () Only need leave of court for reasons cited above 7) Rule 32: Use of Depositions in Ct Use: to contradict testimony of witness, in place of witness if dead/too far/old/sick/not show despite subpoena/interests of justice Objection to admissibility: object just as if witness were present Objection waivers: if not made right away, waive objections to notice, officer, form of questions, written questions. 8)Rule 33: Interrogatories to Parties (not to third parties) - () Questions directed to other party Not to exceed 25 w/out permission, answer under oath, make objections or waived, not need to answer if facts are publicly available 9) Rule 34: Production of Documents and Things and Entry upon Land Scope: can request anything w/in 26(b) relevance, need to be as specific as possible Nonparties: w/subpoena, may be made to produce documents/ inspection 10) Rule 35: Physical and Mental Examinations of Persons Must show good cause as to why the examination is need and a party is in controversy Party calling for exam must provide report to other party 11) Rule 36: Requests for Admission a. Seek admission of truth of facts b. If accepted or not responded to, treated as conclusively established for present case, but no other proceeding 12) Rule 37: Failure to Make or Cooperate in Discovery: Sanctions 2) 3)

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a.

b. c. d. e.

Motion to compel discovery : when have made good faith effort and party has refused been evasive or incomplete; if motion granted, ct shall grant expenses unless no good faith effort, w/o ct order or refusal substantially justified Failure to comply w/ order: Considered contempt of court, pay fees Failure to Disclose or Misleading Disclosure; Failure to admit: If do not reveal initially disclosable or requested materials, unless harmless, may not use at court, sanctions, possible default judgment No shows or no response: if call depo and not show or forget to subpoena witnesses, pay expenses *** Ct must have already ordered compliance under 37b, unlike 26(g)

A. Possibilities of Discovery Rule 26 (b) Discovery Scope and Limits discovery is allowed for non-privileged matter that is relevant to claim or defense (w/o cts approval) + Ct may order broader discovery of any matter relevant to the subject matter involved in the action for Good cause. Davis v. Precoat Metals [Ps were African-American and Latino employees who worked at D's Chicago plant who argued discrimination based on race and national origin. During discovery, P filed a motion seek the discrimination complaints made against D within 5 years and those complaints of race and national origin made by employee working at Chicago Plant] Discoverable info is not limited to that which would be admissible at trial. "if the discovery appears reasonably calculated to lead to the discovery of admissible evidence" it can be allowed. Here, P wanted discrimination complaints made against D within 5 years and those complaints of race and national origin made by employee working at Chicago Plant where P worked. Ct decided it was "RELEVANT", so discoverable. P limited the scope of discovery narrowly enough. Steffan v. Cheney [Steffan resigned from US Naval Academy because administrative board recommended that he be discharged because he stated himself a homosexual. He was not charged with any homosexual conduct. During deposition, P refused to answer deposition Q whether he was engaged in homosexual activity claiming 5th Amendment.] Ct found the Q is NOT relevant (to defense) because homosexuality activity is NOT ground of the action. B. Duty to preserve Evidence : Spoliation (, ) (Spoliation highly prejudice case is dismissed) Silvestri v. General Motors corp. [P got injured in automobile accident when he crashed into a utility pole with his landlady's car. After 3 years he filed suit against GM for product liability regarding airbag. He and his lawyer did not take any steps to preserve the vehicle or to notify GM of the existence of the vehicle and potential claim.] Spoliation : Destruction or material alteration of evidence or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation: it is COMMON LAW principle that comes from inherent pwr of ct. - Spoliation may give rise to ct imposed sanctions but it does not itself give rise substantive claims or defenses. Ct has broad discretion in choosing sanction. But dismissal should be avoided if a lesser sanction is be proper. - Ct must found some degree of fault to impose sanctions. Dct dismissed the case and App ct affirmed it because the spoliation was highly prejudicial to D, 1) it is only evidence 2)P knew that there would be lawsuit, so even if it was not Ps car, P should have given GM an opportunity to inspect. C. Limitations on Discovery in an Adversary System Hickman v. Taylor [in a tort case regarding the sinking of a tug, P asked D's lawyers "any statement of the members of the crew of the were taken in connection with the owing of the car float and the sinking of the Tug"] Attorney work products cannot be generally discoverable. Now it is codified in Rule26(b)(3): Trail preparation materials. It maybe discoverable if 1) substantial need 2) undue hardship to other party. Chiquita International Ltd v. M/V Bolero Reefer [Banana were not fully loaded on ship b/c of alleged malfunction of vessel's loading cranes. D required the deposition of Mr. Winer, production of his files - engineer employed by P examined banana in arriving place. ] Mr. Winer is NON-TESTIFYING expert who is immune from discovery (under Rule 26(b)(4)(B)) D. Ensuring Compliance and Controlling Abuse of Discovery Rule37 / Rule26(g) : attorneys fee can be appropriate sanction. Zubulake v. UBS Warburg LLP [Zubulake sued UBS for gender discrimination. D lost backup tape including e-mails that P wanted to use as evidences] *Elements for giving Adverse instruction as a sanction. i. Party has obligation to preserve at the time of destroy. ii. With "culpable state of mind" (includes ordinary negligence) iii. Destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. Here, spoliation was negligent or reckless but not willful. So, additional relevance alongside destroyed evidence. iii was not found here. Chapter 8 Resolution without Trial A. Pressure to choose Adjudication or an Alternative 1. Default and Default judgment RULE55- default Judgment. Clerk must enter the party's default..

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(b)exception of minor, metal incapacities. (c)To set aside judgment : for good cause or under Rule60(b) Peralta v. Heights Medical Center [P filed suit but D might not get served. D did not answer the complaint or show in ct. Ct granted default judgment.] *Overcoming default judgment in TX 1. Petitioner had a meritorious defense. 2. Petitioner was prevented from proving his defense by the fraud, accident or wrongful act of the opposing party. 3. No fault or negligence on petitioner's part. TX ct held Default judgment must stand w/o showing of a meritorious defense. Sup Ct reversed : D has been deprived of property in a manner contrary to the most basic tenets of Due Process. It is not answer to say that D would have same result anyway. 2. Involuntary / Voluntary Dismissal R 41(b) : Invoultary dismissal effect is adjudication on the merits. R 41(a) : Voluntary P can dismiss before D serve answer or file a motion for Summary judg. *Texaco Inc. D opposed the injunction but did not answer the complaint. B. Avoiding Adjudication : 1. Settlement 1. Settlements are contracts. Any affirmative defenses can attack the agreement. (fraud, duress mistake, incapacity, unconsciounability..) 2. Agreement not to Sue: how D use it? When D files 56(b) Summary Judg., using R8(c). (affirmative defense) 3. No (fed) Jrd to enforce the settlement of the Fed Q claim -> settlement is K law. KoKKonen (p. 489) if the settlement agreement is made a part of the order of dismissal breach of the agreement invokes Fed ancillary jrd. Matsushita Elec. Industrial Co. v. Epstein [2 class lawsuits were filed on behalf of MCA shareholders. 1) EXCLUSIVE Fed action alleging breach of fed securities law 2) Delaware state claim alleging breach of fiduciary duties. After fed Dct granted D summary judgment, It was appealed. But parties settled. An state ct approved.] 9th cir found that the preclusive force of a state-ct settlement judgment is limited to those claims that could have been extinguished by the issue preclusive effect of an adjudication of the state claim. So it had so preclusive effect on issues in fed ct. Delaware ct cannot adjudicate fed claim. Sup Ct reversed. fed ct cannot withhold full faith and credit from a state-court judgment approving a class-action settlement simply because the settlement releases claims within the exclusive jrd of fed ct. Full Faith and Credit Act - Fed ct must give the judgment the same effect that it would have in the ct of State. - Delaware ct would afford preclusive effect to the settlement judgment in this case, notwithstanding the fact that respondents could not have pressed fed claims. C. Summary Judgment R56(C) there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law 1. Moving Party: The moving party can show the lack of a genuine issue by a number of means to show that there is no genuine issue of material fact. The moving party for summary judgment bears the initial burden of production. The moving party must come up with at least some affirmative evidence that there is no genuine issue as to material fact and the moving party is entitled to a judgment as a matter of law. 2. Nonmoving Party: The party opposing the summary judgment also submits affidavits, depositions and other materials. Opponent cant rest on pleadings: If materials submitted by the movant show that there is no genuine material issue of fact for trial, the non-movant cannot avoid summary judgment merely by repeating his pleadings denial of the allegations made by the movant. In other words, the party opposing the motion may not rest on restatements of her own pleadings, and must present by affidavits or the fruits of discovery specific facts showing that there is a genuine issue for trial. Rule 56(e). Celotex Corp. v. Catrett (1986) [P filed suit alleging the death of her husband resulted from his exposure to products containing asbestos manufactured or distributed by corporations including D. D filed motion to summary judgment. DCt granted, App reversed] R: Plain language of Rule 56 mandates the entry of SJ against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. - Adickes held that the burden of the moving party is to show initially the absence of a genuine issue concerning any material fact. it is true but it does not mean that moving party needs to prove the absence of material facts regarding elements that non moving party has BoP. - Moving party needs to show by pointing out to Dct that there is an absence of evidence to support the nonmoving party by identifying those portions of the pleadings, the discovery and disclosure materials on file, and any affidavits which it believes demonstrate the absence of genuine issue of material fact - 56(e) : when a motion for SJ is made and supported, opposing party must respond by affidavits showing specific facts of a genuine issue for trial. (not just rely on own pleading)

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Bias v. Advantage International, Inc. [Bias died from intoxication of cocaine. P filed suit against D based on D's failure to secure Jumbo life insurance policy as promised before P's son died. D moved to SJ based on the facts that Bias was drug user and there was no insurance company that would have issued a million dollar life insurance policy for a drug user.] - Moving party must explain its reasons for concluding that the record does not reveal any genuine issue of material fact Once the moving party has carried its burden.. - Nonmoving party must do more than simply show that there is some metaphysical doubt as to the material facts. This party must come forward with specific facts showing that there is a genuine issue for trial. In evaluating the nonmovants proffer a ct must draw from the evidence all justifiable inference in favor of the nonmovant. Here, P may say Bias was not a drug user but P did not depose the specific drug uses of Bias that D presented with witness. Summary Judgment Standard [p522] 1. The moving party for summary judgment bears the initial burden of showing (presenting) that there is no genuine issue of material fact. [Celotex Corp. v. Catrett.] 2. Once the moving party has carried its burden, the burden (responsibility) shifts to the nonmoving party, and he must present Specific facts showing that there is a genuine issue of material fact. [Bias v. Advantage Intl Inc.] 3. The court must examine the motion in the light most favorable to the nonmoving part. [Anderson v. Liberty Lobby] Chapter 9 The Trier and the Trial Complaint R12 (b): denied R56 SJ: no dispute on key facts: denied R50 (a): motion for directed verdict, failed burden of production: denied Jury: unfavorable decision R50 (b): motion for JNOV, b/c of 7th Amend only can do if did R50 (a) is revaluation of earlier request (fixing) A. Burdens i. Persuasion 1. Criminal = beyond a reasonable doubt 2. Civil = preponderance of the evidence ii. Production: produce and present evidence at trial B. Controlling Juries Before Verdict i. Motion for Judgment as a Matter of Law (Directed Verdict)Rule 50(a) 1. After the s evidence has been presented, the judge says no jury trial 2. No legally sufficient evidentiary basis on which the jury could find for the party with the burden of proof 3. All evidence should be considered in the light and with reasonable inferences in favor of the party opposed to the motion. (assume everything is true) ii. Excluding Improper Influences: ensuring jurors do not reach verdicts that cannot be sustained by the evidence 1. Voir direeliminate jurors who might reach irrational verdict 2. Law of evidence controls what is presented iii. Instructions and Comment: serve both to instruct jury on the law and provide statement of applicable law which is reviewable in appellate process C. Controlling Juries after the Verdict i. Renewed Motion for JMOL (Notwithstanding the Verdict)Rule 50(b) allows to renew after presents evidence 1. Same basisno legally sufficient evidentiary basis for a reasonable jury to find for the party 2. Jury came to a decision that no reasonable person could (assume everything is true) 3. Court has the power to direct a verdict if, by looking at the evidence presented, it determined that the inferences made by the jury from the evidence are not rational. 4. often grant new trial in the alternative in case the appellate court overturns the JMOL 5. you have to make a motion for directed verdict or you waive right to renew after jury verdict ii. Motion for New TrialRule 59(a) 1. After the jury has decided and the judgment is entered some problem with the case requires starting over 2. Bases for new trials: (appellate court reviews de novo) A. Contrary to the weight of the evidence B. Contrary to law C. Impermissible argument to the jury (Legal doesnt make it right) D. Error in admission of evidence (Error on the evidence that should not be submitted) E. Error in jury instructions (Poison the jury) F. Jury misconduct 3. Various standards for granting: (appellate court reviews for abuse of discretion) A. 13th juror standardjudge thinks verdict is against the clear weight of the evidence (evidence could support the verdict but the judge thinks it shouldnt)Lind v. Shenley B. JNOVyou would only give a new trial when you would give a JNOV (but instead of turning the verdict around you let them try again)

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4.

C. Gross miscarriage of justice (toughest standard) Conditional New Trials A. Trial judge may grant partial new trial limited to damages B. Trial judge may order condition new trial i. Remittiturorder for a new trial unless agrees to accept reduced damages; approches 1. reduce verdict to the highest amount the jury could have awarded 2. reduce verdict to a reasonable amount 3. reduce verdict to the lowest amount the jury could have awarded ii. Addittiturorder for a new trial unless consents to an increase in the amount of the verdict (not allowed in fed cts as violation of 7th amend jury trial right)

A. Judgment as a Matter of Law Reid v. San Pedro, Los Angeles & Salt Lake Railroad) J.N.O.V case [D's railroad passed through private lands. There was a requirement to fence along the line of railroad. Cow was killed by a train near the gate of fence. D argued the duty to keep the gate close was on owner of lands. D moved to direct judgment. Judge declined. Jury found for the plaintiff.] >Sup Ct reversed that Ct should have directed verdict for D R : Where evidence is intended to support one inference, but instead supports equally one inference that renders the defendant liable and another that does not, the plaintiff must fail. Here all P established was 50:50 chance in what circumstances the cattle was killed. RULE 50. Judgment as a matter of law (a) A reasonable jury would not have a legally sufficient evidentiary basis to find directed verdict (b) Renewing the Motion after Trial : (j.n.o.v) - judgment notwithstanding verdict. Ct cannot revisit jury's finding of facts. When Jury reached a verdict not supported by law, Judge can revisit a prior motion to direct judgment. B. Applying the Historical Test to New Claims (To analyze the nature of the remedy sought and determine if it is legal or equitable in nature even if the closest analogue is an action in equity, if the remedy being sought is essentially legal in nature, the parties are entitled to a jury.) Chauffeurs, Teamsters & Helpers, Local No.391 v. Terry [collective bargaining agreement, P then sued D for compensatory damages in form of back pay and benefits, alleging that it had violated the duty of fair representation. whether a P is entitled to a jury trial in an action for a breach of that duty.] The equitable claim was not 100% analogous, the ct then applied the 2nd step and found the remedy to be a form of damages, a legal remedy. There was aright to a jury. H: An action for compensatory damages for an alleged breach of the duty of fair representation is legal in nature, unless it seeks injunctive or restitutionary relief. C. Applying the Historical Test to New Procedures Amoco Oil co. v. Torcomian [service station intended to become franchisees -> The parties fell into a dispute over whether one of P's representatives had promised that Ds met the franchisee qualifications, and would be accepted as franchisees. P brought suit against D seeking extensive relief, including money damages. D filed a compulsory counterclaim R: The fact that equitable relief is sought in addition to substantial legal relief does not eliminate a right to a jury trial. H: A defendant is entitled to a jury trial based on a counterclaim, even where the plaintiffs original claim is one in equity, where the counterclaim is compulsory and contains an element that would give rise to a right to a jury trial. Ejectment legal remedy Injunction - more equitable. Remmititur A remittitur is a ruling by a judge (usually upon motion to reduce or throw out a jury verdict) lowering the amount of damages granted by a jury in a civil case. Usually, this is because the amount awarded exceeded the amount demanded. If the motion is granted, the plaintiff may either accept the reduced verdict or submit to a new trial. Additur refer to the practice of a trial judge adding damages additional to the original amount awarded by the jury.

D. Judgment as a Matter of Law Penn R.R. v. Chamberlain [Accident in a rail yard. P argued the deceased died from crushing by second string of cars. The witness was standing 900feet from the place of accident and 50feet from the side of the track in Q. he did not see the deceased but heard some crushing sound. The witnesses of D were in second string of cars testified that there was no collision. Trial Ct directed the jury to find for D.] R : Where proven facts give equal support to each of two inconsistent inferences, judgment as a matter of law must go against the party of BoP. When the evidence tends equally to sustain either of two inconsistent propositions neither of them can be said to have been established by legitimate proof. Here There is no direct evidence on the accident. Affirmed.

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E. New Trial Lind v. Schenley Industries [ say promised him a raise and commission (4x salary, 2nd highest paid employee). Judge issued a j.n.o.v. or new trial in alternative because against the weight of the evidence. H: A trial court abuses its discretion by substituting its judgment for that of the jury. R: Nothing indicates that jury wasnt properly presented w/ evidence, and some evidence supports the decision abuse of discretion. F. The Reexamination Clause and the jury as a Black Box Peterson v. Wilson [In wrongful termination suit where there was evidence on both sides, jury finds for . Judge grants j.m.l. w/ alt new trial, citing jury testimony that disregarded instructions.. At new trial, jury finds for . appeals] H: A court may not grant a judgment as a matter of law or a new trial based on testimony from jurors, after they have returned their verdict, regarding the juror's mental processes or fidelity to the court's instructions. R: Trial ct judge impermissibly interviewed jurors, for reason besides determining if there had been extraneous influences, and then admitted that info as evidence and made decision outside presence of parties and counsel. Chapter 10 Appeal A. Who can Appeal : party with Adverse judgment 1. When a party has won the judgment but where a theory rejected by Tct? generally no appeal. but if there is different collateral consequence, appeal is allowed. (p.628 ex)fraud theory in Bankruptcy case) 2. Doctrine of Mootness : one may not appeal from a judgment when circumstances have changed in such a way that relief is no longer possible. Exception : Q is likely to recur & application of the mootness doctrine would effectively prevent the Q from receiving appellate review. 3. Party who won the trial but also received a adverse judgment for a counter claim can Cross appeal 4. Objection : A party must present to Tct contentions which it wants ruling, otherwise it is waived. (object -> judges overrule as result, excepted : it does not have to be formal) a. Objection made by a motion to dismiss may preserve the issue for appeal. b. In addition to objection, the litigant must state the grounds for the request or objection c. Plain error rule : one exception of objection rule. Commonly it is applied in Criminal cases. 5. Constitutional limitation on Appeal a. Ct never held there is a constl right to appeal a civil case. b. But invalidated laws that put a special burden on appeal. Ex) state statute that requires to post a bond twice as great as the rent expected to accrue during the appeal. But Ct upheld a law putting 15% penalty on an unsuccessful appeal. B. When a Decision reviewed : Finality 1291 : Appeals lie only from final decisions of Dct. Final decision is one which ends the litigation on the merits and leaves nothing for the Ct to do but execute the judgment. *Moment of Judgment - Requirement: timely filing of a notice of appeal with the clerk of dct. App.R.3&4 -30Days - App.R.4(a)(4) : appeal is held in abeyance until the disposition of post-trial motions at which point it becomes effective. Liberty Mutual Insurance co v. Wetzel [P alleged the insurance benefits and maternity leave regulations of D discriminated against women in violation of Civil right Act. After some discovery, P moved for partial summary judgment only as to the issue of liability. and Dct entered an order to the effect P's claim.] Appellate ct have pwr and duty to consider appealability even if neither party raises the issue. This ct applied 54(b) to announce the order regarding the liability of D. But Rule 54(b) should apply only for multiple claims. It is not a final judgment because it left unresolved P' requests for an injunction.other damages. Lauro Line s.r.l v. Chasser [a Cruise ticket, forum-selection clause indicates forum should be Italy.] What is final judgment? Decision by the Dct that ends the litigation on the merits and leaves noting for the court to do but execute judgment, Exception of Finality rule ; Practical finality - Collateral Order Elements. a. It must conclusively determine the disputed Q b. Resolve an important issue completely separated from the merits of the action c. Be effectively unreviewable on appeal from a final judgment. Where the order at issue involves an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial. Generally, Denial of a motion to dismiss based on a claim of absolute immunity from suit is appealable. but Immunity is right not to be sued anywhere. But forum selection clause makes D immune from certain jurisdictions. C. Scope of Review -

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Anderson v, Bessemer City [Dct found that P had been denied employment because of her sex based on facts 1) She was better qualified 2) male committee members had been biased 3) she was asked whether her husband approved of her applying for job and 4) reason offered by committee were pretextual. Ct of app reversed] Sup ct : Where there are two permissible views of the evidence, the fact-finder's choice bt them cannot be clearly erroneous. Only Tct has chance to look and hear from the witness. Now codified in R52(a)(6) finding of fact shall not be set aside Unless clearly erroneous and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. * De novo review (requiring review of facts and application to law.) - Punitive damage. - Interpretation of state law by Fed ct. Harnden v. Jayco, Inc [P's attorney argued that the report of D was not in the form of an affidavit or sworn statement. So it is error for dct to grant SJ based on that.] Error may be considered harmless if it does not affect any party's substantial right and party was not prejudiced. (coming from 2111) Ct hold that admission of this report has harmless error. There is no prejudicial effect on P. P had full time to prepare its own evidence, Chapter 11 The Respect for Judgments A. Claim Preclusion I. A final judgment on the merits3, constitutes an absolute bar to a subsequent action between the same parties or those in privity with them upon the same claim. II. 3 elements: Barring from bring the same cause of action in later suit when: 1. Identical claim was raised (or could have been raise) [in general, claim is identical if it shares a common nucleus of operative fact. same transaction/ occurrence] same party, same legal theory, same underlying facts. 2. The parties in second litigation must be identical to those of original litigation, or be in privity 3. Final judgment on the merits in the original litigation (administrative order or provisional measure in not applied) III. Definition of Same claim 4. 1st Restatement: precluded if a subsequent claim is the same cause of action with the same facts and same evidence necessary to prove (narrow). One impulse behind this rule is to allow parties to choose their forum and avoid a race to the courthouse, discouraging settlement. 5. 2nd Restatement: precluded if claims arise from the same transaction or common nucleus of operative facts (broader) VIII. What does mean by on the merit? The cause of action; for what reason did you bring a suit? - FRCP 41(b) defines anything except dismissal for lack of jurisdiction, improper venue, or failure to join a party under FRCP 19 as adjudication on the merits. However, there is a strong presumption in favor of giving individuals a fair opportunity to adjudicate their claims, and against binding parties who have been inadequately represented. - In supp jurisdiction cases: If first ct refuses to hear claim b/c no jurisdiction or ct refuses to assert jurisdiction, can usually bring claim in diff place b/c have not been heard yet. 1. Precluding the Same Claim Goals of claim preclusion 1. Efficiency conserving judicial resources by hearing the facts of case only once 2. Finality giving the some release from liability after a judgment is entered 3. Consistency consistent judgments Class note: Elements 1) Final judgment in the first lawsuit. 2) Judgment on the merit (if that the judgment was want to preclusive effect to) of the lawsuit. It means that it resolve the issue in the case. Lets say there was Direct verdict (Yes, the court has rules that one party fails to produce enough evidence) Jury verdict (Yes, the court has rules that one party fails to produce enough evidence) Summary judgment (Yes, the court has rule that because one party did not present enough evidence) New trial (No, it just mean new trial) 12b(6) motion (In the federal court system, if that order is granted, if the court says dismissal with prejudice, then it is judgment on the merit.) If the attorney made a mistake (technical mistake) then court may dismissal without prejudice, then it is not judgment on the merit. Rule 12 motion, no personal jurisdiction or no subject matter (if there is only the ruling if no personal jurisdiction or subject matter, not judgment on the merit.) Dismissal as a sanction (discovery abuses) it has to be judgment on the merit.
3

Not every final judgment is based on the merits of the case (i.e. cases dismissed on jurisdictional ground, improper venue, etc.)

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- Otherwise it would not give real punishment effect. 3) Arising from same Transaction/occurrence: Lawsuit two must involve the same claim as lawsuit 1. 4) Mutuality or privity: Parties in the two lawsuits are the same. a. Efficiency Frier v. City of Vandalia, [Garage tow] Fact: D police had a garage tow P's car b/c it was parked in traffic. P sued D and the garage in state ct for replevin of his car. Ct did not issue the writ of replevin. P then filed alleging depriving of my property wo due process of law. P argue that it was not precluded from filing a fed suit under a different legal theory than the one he on which he based his state ct action. Holding: His claim is precluded by claim preclusion. Rule: A suit is barred by claim preclusion when the parties and causes of action involved are identical to those of a prior suit. - A claim which could have been brought against the same D arising from the same transaction/occurrence must be brought or it will be claim precluded. [NOTE] Rule 42(b) Separate Trials: For convenience, to avoid prejudice or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaim, couterclaims, or third-party claims. b. Consistency the logical implications of the Former Judgment. Martino v. McDonalds System, Inc., [Son loves burger] Fact: McDonalds sued Martino for breach of K and there was a consent judgment; Martino then brought suit on antitrust claim. H: Although the claim does not qualify as a compulsory counterclaim under 13(a)(because there was no pleading) this falls into narrow category of common law counterclaims barred by res judicata effect - Consent judgment is a valid final judgment on the merits to hold otherwise permits the P to impose liability for the exercise of rights established by the prior judgment - The common law rule asks whether the claim in the second case would nullify the judgment in the first case. - Because policy requires that res judicata bar a counterclaim when its prosecution would nullify rights established by the prior action Rule: Res judicata treats a judgment on the merits as an absolute bar to relitigation between parties and those in privity with them of every matter offered and received to sustain or defeat the claim or demand and to every matter which might have been received for that purpose. (Including counter claim) [NOTE] Rule 13. Counterclaim and Crossclaim. (a) Compulsory Counterclaim (1) 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) arise out of the transaction or occurrence that is the subject matter of the opposing partys claim; and (B) does not require adding another party over whom the court cannot acquire jurisdiction. (b) Permissive Counterclaim. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory. But, this Rule 13 is not applied b/c consent was settled b/f Ds answer. Transactional preclusion permissible because P has an opportunity to bring all claims in first suit. Maybe even desirable to require Ps to package related claims efficiently. So its fair to preclude only if the precluded party has had a fair opportunity to litigate the claim. 2. Between the Same Parties Searle Brothers v. Searle, 588 P.2d 689 (Utah 1978). Fact: Edlean sued Woodey for divorce. During that proceeding, the ct determined that a piece of property known as Slaugh House, which was recorded in Woodey's name, was part of the marital property and subsequently awarded the entire property to Edlean. Woodey had argued that he had a half interest in the property and the other half was owned by a partnership w his sons as partners. Searle Bros (P), the partnership, then sued Edlean, claiming an undivided one half interest in Slaugh house. TC held that res judicata and collateral estoppel barred the action by P. Rule: If the suit involved different parties those parties are not bound by prior judgments; collateral estoppels can be asserted against a party who was in privity with a party in the prior suit; privity means so identified together as to represent the same legal right; no privity so no preclusion. Application: P's interest was neither mutual nor successive. So, Ps claim is not precluded. Here, no mutual or successive interest. The first case was divorce; kids could not have been able to intervene. Husband was acting in individual capacity, in the first case, and not in representative capacity for the partnership. Class note Some claims barred by former adjudication even if not previously litigated (Frier, Martino) - E.g., arising from same transaction/occurrence But, general proproposition is that separate individuals have separate claims even when they do arise

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form same transaction or occurrence as prior litigation (Searle): - Exceptions: joint ownership, control of prime litigation (Privity, virtual representation) 3. After a Final Judgment a. Directed verdict b. Judgment notwithstanding of verdict: JNOV c. Summary judgment: during the discovery d. Case is dismissed: 1. Rule 12(b)(6): motion for failure to state a claim. 2. Rule 12(b)(2): motion for want of personal jurisdiction => non precluded- that case can be brought again e. Dismissal for failure to prosecute 1. Rule 41(b): Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule-except one for lack of jr, improper venue, or for failure to join a party under Rule 19-operates as an adjudication on the merits. 4. After a Judgment on the Merits Gargallo v. MerrillLynch, Pierce, Fenner & Smith, 918 F.2d 658 (6th Cir. 1990). Fact: P opened a margin brokerage account with D where lost investment and end up owed $17,000 to D. D filed suit for collection in the court of Common Please. P filed an answer and counterclaim against D Alleging that D caused his losses through negligence, misrepresentations and churning and that the firm had violated federal securities law. State court dismissed P's counterclaim with prejudice for refusal to comply with D's discovery requests and the court's discovery orders. P then filed a complaint in US dc. The ct dismissed the action on res judicata grounds, finding that the claims were the same as those dismissed by the ohio ct. P appealed. Holding: Ps claim was not precluded. Rule: A final judgment by a state court upon a cause of action over which the adjudicating court had no subject matter jurisdiction does not have claim preclusive effect in any subsequent proceedings. Whether state court would give preclusive effect to such a judgment. B. Issue Preclusion Collateral Estoppel 1) No mutuality requirement 2) Adequate incentive opportunity to litigate 3) Actually litigated and decided 4) Essential to the judgment 5) Same issue in both cases The same issue A. Differences in burden of persuasion: A party who fails to meet a higher burden in the first case is not precluded from relitigating that same issue in a later case in which the burden is lower. B. Installment Ks: Not considered same [Pg 258] An issue Actually litigated and Determined A. Because of this requirement, default Judgment and dismissals do not have any issue preclusion effect. B. ***If a particular fact must have been decided in a particular way for the court to reach the result, issue preclusion will apply! However, if the court reach the result in two or more different way, no issue preclusion. Illinois Central Gulf Railroad v. Parks, 181 Ind. App. 141 (1979). P 696 Fact: Jessie and Bertha were injured when a car driven by Jessie with Bertha as a passenger collided w train. Bertha and Jessie sued train. Bertha sought compensation for her injuries, and Jessie sought damages for loss of Berth's services and consortium. Bertha recovered a judgment on her claim, and on Jessie's claim, judgment was for train. Jessie then sued train for his own injuries. Train moved for SJ. TC held that Jessie's claim was not barred by claim preclusion and that also by issue preclusion on the issue of contributory negligence. Train appealed. R1: If a Judgment could have been based on two findings, the party pleading estoppels has the burden of proving it turned on the fact in question or that finding will be open to contention. R2: If jury makes decision on two or more options in a general verdict, then none of the issues is precluded because it is not possible to know if both were actually litigated and determined. Finding1st jury could have found J contrib. negligent or J not injured. Because not clear which option the jury chose, cannot say that issue was litigated or determined, so no issue preclusion. (Given that jury had to find RR negligent for Bs injuries in order for her to win.) Application: Train failed to show that the judgment against Jessie in the prior action was based upon a finding that Jessie was contributory negligent in the accident Jessies negligence was not litigated on the first suit. Note: win by a general verdict does not give preclusive effect. An issue Essential to the Judgment Between Which Parties?

1.

2.

3. 4.

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A.

B.

The victim of Preclusion 1. Mutuality rulevictim of the preclusion must have been a party to the first suit or in privity (not based in due process so courts dont have to apply it and recently courts are allowing non-mutual collateral estoppel) a. Defensive non-mutual collateral estoppel: E.g. Sui1: P ---------------------------> D1 (P losses on Issue A) Suit2:P ---------------------------> D2 (New D pleads collateral estoppels to bar P from relitigating issue A) This use of estoppels is nonmutual because the party asserting the estoppels on the issue was not a party to the action in which the issue was first litigated. in Case #2 is using collateral estoppel when she was not a party in Case #1permitted when had a full opportunity to litigate the issue i. gives incentive to join all s because if the loses the first suit all the other s can use issue preclusion; but if had won first suit hes not allowed to use issue preclusion against different s because of due process (day in court) Blonder-Tongue b. Offensive non-mutual collateral estoppel: E.g. Sui1: P1 ---------------------------> D (D losses on Issue A) Suit2:P2---------------------------> D (New P invokes collateral estoppels to establish Issue A in her suit against D) New P who seeks to borrow a finding from a prior action to impose liability on a party who was a D in the prior action. c. most courts dont allow offensive; some courts will allow it as long as it is fair under the circumstances: i. had chance to fully litigate in case #1 ii. could not easily have joined case #1 iii. could foresee multiple suits (incentive to litigate first case well) iv. No inconsistent judgments (procedural opportunities in this action not available in prior action) v. POLICY: this allows a to sit and wait for another judgment against the and if he likes it, use it and if not hes not bound by it. The Precluder Parklane Hosiery Co. v. Shore, [Misleading statements] Fact: filed suit for misleading statements in merger and SEC filed suit soon after; SEC won and moved for summary judgment on grounds that issue was already litigated, claimed it would violate its right to a jury trial. Rule: Do not preclude offensive collateral estoppel but give trial cts broad discretion to det when it should be used. Gen rule is where could have joined parties or where collateral estoppel would be too unfair to judge should not allow offensive use. had full opportunity to defend against charge in SEC case. couldnt have joined in 1st suit. could foresee later suits. Judgment in 1st suit didnt conflict w/ any previous suits. Procedures same. [NOTE] Offensive Use Wait and see by P: P should prove that he couldnt join the previous case Unfairness in offensive use First small action but later big one: may have little incentive to defend vigorously, particularly if future suits are not foreseeable, Many bring lawsuit many times: if the judgment relied upon as a basis for the estoppel is itself inconsistent w one or more previous judgments in favor of the D, Same type of discovery can case: Where 2nd axn gives procedural opps not present in first axn that could diff result. State Farm Fire & Casualty Co. v. Centrury Home components, Fact: The fire in a warehouse spread to other buildings; multiple suits brought against owner of warehouse; when some of those suits said warehouse was negligent, others filed for summary judgment. 1st: Pac NW Bell v. Century (P won) 2nd: Sylwester v. Century (D won) 3rd: Hesse v. Century (P won) Offensive Collectral estoppel . Same claim but amended their claim so that it is exactly same to the first and third. B/c there are diversity of jury decision (inconsistency), it is not unfair to D. No issue preclusion. Let jury decide this again. Rule: When there are multiple inconsistent judgments, collateral estoppels will not apply. it is fundamentally unfair to say he cannot litigate when on another day he has prevailed.

The Boundaries of Preclusion Kovach v. District of Columbia [traffic tickets] Fact: Donald Kovach (P) was among 20,000 motorists who had been issued traffic tickets for running red lights. C.

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R: Admission of the commission of a violation in an administrative case preclude the re-litigation of issues involving the same parties and the same facts, not only as to every ground of recovery or defense actually presented in the action, but also as to every ground that might have been presented. - Kovach (P) had the opportunity to contest the infraction before the BTA but did not. Repose: Collateral Attack and Reopened Judgments 1. Full Faith and Credit as a Bar to Collateral Attack - 28 USC 1738: Federal courts give the same full faith and credit to state court judgments as those states would give. - When applying full faith and credit, the court in the second action must look to the law of the jurisdiction that decided the first action to determine whether the rule or issue is precluded. **State courts: A state court is free to apply preclusion even though the first court would not. **Federal Courts: A federal court may not give more preclusive effect to a state court judgment than the rendering court would give. a. Exception to Claim preclusion: 1. A suit in another state to collect on a judgment: When a party obtains a judgment in one state, he may take that judgment to another state to seize assets owned by the judgment debtor in that other state. 2. Fist Court lack subject matter jurisdiction over an omitted claim: Inefficiency by encouraging a party to join all claims..A claim preclusion applies when a party could not litigate a particular claim in the first action because of lack of jurisdiction. 3. By agreement: where parties agree to allow claim splitting or the court in the first action expressly indicates that the party is free to bring one or more claims in a later action. 4. Fairness requires: overwhelming concerns for fairness. b. Exceptions to issue preclusions: 1. Intervening change in law: if the issue involves the application of law to fact and there has been an intervening change in the law or interpretation of the law. 2. Procedural advantages: was not available in the first action. 3. Burden of persuasion greater: More rigorous in the first action 4. Against public interest: 5. No incentive: did not have an incentive to litigate: c. Scope of full faith and credit: - A court must enforce the judgment of another state or federal court even though the underlying claim is illegal or violates the public policy of the enforcing jurisdiction. - A judgment rendered without jurisdiction is void. Durfee v. Duke, [P's Action for quite title in Nebraska] Fact: D brought an actio against P in a NE ct to quiet title to land situated on the Missouri River at the MONE boundary line. The NE ct had subject matter jurisdiction only if the land was in NE. P appeared in the NE ct and finally litigated the issues, including the ct's jurisdiction. Both the NE trial and AC found for D and held that NE ct had subject matter jurisdiction based on their finding that the land was in NE. P brought this action in a MO ct to quiet title on the same land. B/c of diversity of citizenship, the action was removed to the fed dist ct. Holding: The principles of res judicata and full faith and credit preclude relitigation of judgments of a foreign state when the parties have appeared and have fully and fairly litigated the issues. - However, the courts decision makes it clear that other parties who had not appeared would be free to bring action in Missouri and assert their rights to the same property. D. 2. The Reopened Judgment as an alternative to Collateral Attack Federal Rule Civil Procedure 60(b): which allows a party to obtain relief from a judgment typically a new trailin certain situations. - Action in rendering court asserting that some fundamental defect justifies setting judgment aside - It is not an appeal, - It Can be brought only in court rendering judgment. Rule 60 (b) GROUNDS FOR RELIEF FROM A FINAL JUDGMENT, ORDER, OR PROCEEDING. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. Time limits: Rule 60(b)(1),(2), or (3) must be made within one year of the judgment. Rule (60)(4),(5), and (6) have no fixed deadline but must be brought within a reasonable time.

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A.

United States v. Beggerly, Fact: In 1979, D brought a quiet title action in Mississippi against P over certain real property. P sought to set aside an earlier judgment on a settlement 12yrs ago. In prior case, No evidence was found that P's land was conveyed to private party by France who had the land. Later, P found an evidence proving conveyance. P then filed a complaint seeking to set aside the settlement and award damages. DC dismissed the case on jurisdictional grounds but the AC reversed, deciding that it qualified as an independent action under FRCP 60b. Hold: Independent action was not granted. Rule: Independent actions pursuant to rule 60b are reserved for cases of injustice sufficiently gross to demand departure from adherence to the doctrine of res judicata. Independent action should be available only to prevent "a grave miscarriage of justice" within "reasonable time" - Here, what P argues is merely that U.S. failed to search thoroughly. Requirements for a Meritorious independent action: R60(b)(1)~(3) mistake, discovery, fraud no more than a 1 yr. (statutory limitation). Chapter 12 Joinder Joinder of Claims 1. Joinder of Claims by P Rule 18(a) can join any and all claims against the same opposing party even if they are not transactionally related (never compulsory but claim preclusion may apply depending on state def of clam preclusion) Subject Matter Jurisdiction 1. supplemental jurisdiction only applies if first claim was a federal question and the second arises from same T/O 2. diversity will not be affected (if first claim was in diversity) 3. claimant may aggregate all claims in order to satisfy amount in contro 4. 1367 Supplemental Jurisdiction allows to include state claims or another party into the original claim A. In federal question actions, the district court (which already have original jurisdiction over some federal claim) shall also have supplemental jurisdiction over all other claims that are SO RELATED to claim in the action within such original jurisdiction that they form part of the same case and controversy under Article III of Constitution. B. In diversity actions, the district court shall NOT have supplemental jurisdiction. (original jurisdiction founded solely on section 1332- Diversity citizen, not related to federal Q at all) C. The district court may decline to exercise supplemental Jurisdiction if: 1) the claim raises a novel or complex issue of State law 2) the claim substantially predominates over the claim 3) this district court has dismissed all claims over which it has original jurisdiction 4) exceptional circumstances, other compelling reasons D. 30 days tolling period 1367(d) after the original federal claim is dismissed can file state claim in state even though statute of limitation is run ( Rationale: to prevent waste of resources by adjudicating same or extremely overlapping claims in fed and state ct; prevents supplemental jurisdiction from giving fed court jurisdiction over cases where it would be unconstitutional 2. Claims by the D: Counterclaims a. Compulsory: Rule 13(a)arising out of the same transaction or occurrence as the s claim; it must be asserted in the pending case or else it is waived; must be asserted in your Answer A. Efficiency and Consistency B. Test for same transaction or occurrence i. Logical relationship test: if the two claims are logically related in any significant way same underlying set of facts; ii. Narrower: (Minority) Significant overlap between the disputed elements C. Exception: i. D has not filed an answer requires the counterclaims to appear in the answer; ii. The claim has not yet arisen when D files his answer; iii. The presence of third parties over whom the court cannot obtain PJ; iv. Ps suit is based on in rem or quasi-in rem juris; v. Already being litigated in another courts. D. Supplemental SMJ always extended to compulsory counterclaims b. Permissive: Rule 13(b)does not arise from same transaction or occurrence as the s claim so you may assert it but you dont have to; you can still sue separately A. No supplemental jursidiction B. the court separate suits under Rule 42(b) for efficiency i. Rule 42 grants authority to trial judge to hold separate or joint trials when it makes sense to do so

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3.

Cross-claim: Rule 13(g)asserted against a co-party(someone same side of v.) in an existing action [D sues another D] a. must arise from the same transaction or occurrence as the underlying dispute;[subject matter of the original action] b. must ask for actual relief (otherwise its a defense) c. never compulsory d. always covered by supp jurisdiction (when original claim is in FQ and cross-claim is not) e. Once a party is served with a cross-claim, she is required by Rule 13(a) to file any factually related counterclaims she has against the serving party.

B.

Joinder of Parties Fed. R. Civ. P. 20 allows multiple parties to join as Ps in the action and allows the P or Ps to sue more than one D. 1. By Ps 20(a)(1)(A) Person may join in one action as Ps if: they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action. a. Claims arise from the same T/O or series of transactions or occurrences b. Raise at least one common question of fact or law must bear a significant relationship: logical relationship test 2. By Ds: Third party Claims: P must allege that Ds are liable to him jointly, severally, or in the alternative. a. Jointly and several: In many states, two Ds are held jointly and severally liable for torts in which they both play a role. b. Alternative: Ds are liable in the alternative when P alleges that one of the Ds is responsible. c. Claims arise from the same T/O or series of transactions or occurrences ****Adding parties to counterclaims and cross-claims: If a party files a valid counterclaim or crossclaim, Fed. R. Civ. P. 13(h) allows her to add additional parties to the claim under the conditions specified in Rule 20. A. Personal Jurisdiction: who are joined must individually meet requirements of PJ i. Service: each personally served ii. Contacts: each must have in personam minimum contacts iii. Long Arm Limits: each must be amenable to suitNOTEfed court in diversity follows long arm of state in which it sits so long arm must be able to reach B. Subject Matter Jurisdiction i. If first action was FQ: 1. another FQ is original jurisdiction 2. Supplemental jurisdiction may apply ii. If first action was in Diversity: 1. no supp juris under 1367(b) 2. maintain complete diversity 3. satisfy amount in controversy with regard to each party 3. More Complex Litigation a. Rule 14(a) speaks in terms of a D using impleader. - However, 14(b) specifically allows a P to use impleader if a claim has been brought against that P. b. Permission: A party need not obtain the courts permission to implead if she files the third-party complaint within 10 days of filing her original answer to the claims. After, permission required. c. A defending party may join a third party D who is or may be liable to the 3PP for all or part of the claim I. Indemnity in strict liability, vicarious, agreement, warranty II. Joint tortfeasors contribution A. A party can use impleader only if the substantive law allows the 3PP to recover against the 3PD. d. Impleader is proper only if the 3PD is liable to the 3PP for all or part of the 3PPs liability to P. - D cannot use impleader and say you sued the wrong guy. - However, D who joins a 3PD may allege in the in the alternative that she is not liable. e. Jurisdiction: Fed. R. Civ. P. 4(k)(1)(B) contains a special provision designed to facilitate impleader that rule provide service is effective to create jurisdiction on any party joined under Rule 14 who is served at any place within the United States that is within 100 miles of the court that issued the summons. f. If venue is proper between original parties it remains valid regardless of resident of TRD. g. Claims by the TRD: i. Rule 14 allows the 3PD to assert any defenses it has to Ps claim. ii. Also allows the P and third-party D to file claims against each other (However only if that claim arises from the transaction or occurrence that is the subject of an original claims by the P against the original D)

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4.

Once P files a claims against the 3PD, the 3PD must file any claims she has against P that meet the requirement of 13(a)- Compulsory counterclaims rule. Compulsory Joinder 1. Compulsory joinder is primarily a defense, not a joinder method. - Fed. R. Civ. P. 19 is usually invoked by D raising a Fed. R. Civ. P. 12(b)(7) motion or by raising the defense in the answer. - Result? If court conclude that the missing party should have been joined, it orders the nonmovant(P) to join the person. - If the party was indispensable dimiss - If the party was merely necessary retain the case 2. Three steps: Fed. R. Civ. P. 19(a) establishes the criteria for determining whether a person should be joined. i. 19(a)(1): without A the court cannot afford complete relief among the parties ii. 19(b)(2)(i): As interest may be harmed if she is not joined Substantial legal interest: absence prejudices missing person. iii. 19 (b)(2)(ii): As interest may subject to multiple or inconsistent obligations (joint tortfeasors are not necessary) 3. Consequence of inability to join: Fed. R. Civ. P. 19(b) - P refused to join, then, the court will ordinarily dismiss the case. - P cannot join (due do PJ/SMJ), then, court would consider four factors in determining whether to dismiss the case: i. Extent of prejudice to the absentee/ present parties ii. Possibility of framing judgment to mitigate prejudice iii. Adequacy of remedy in partys absence iv. Will have remedy if dismissed? (another forum) iii.

C.

Intervention Rule 24a party may bring herself in as a or : i. Intervention of Right24(a) gives a party the right to intervene without court permission in certain situations. 1. Your interest may be harmed if you are not joined 2. Your interest is not adequately represented now ii. Permissive Intervention: Rule 24(b)(2)show that your claim or defense and the pending case have at least one common question iii. Subject Matter Jurisdiction?ALWAYS CHECK Martin v. Wilks Fact: Consent decree between city and black firefighters reset hiring scheme. White firefighters later challenged. City moved to dismiss collateral attack on decrees Hold: Failure to intervene in a prior suit about which one has knowledge does not have a preclusive effect on subsequent claims by that party. Rule: A party is not bound by a judgment he was not part of, just b/c he could have intervened. Parties, i.e. s, in the suit have the responsibility to join appropriate parties. A judgment or decree among parties to a lawsuit resolves issues as among those parties, but the lawsuit does not conclude the rights of strangers to those proceedings. Because the parties to a lawsuit have better knowledge of the matters and implications of the litigation, Rule 19 places the burden upon them to determine which additional parties should be brought into the action Thus, mandatory intervention is inconsistent. Class action 1. Introduction Class action permits, in the words of Rule 23, one or more persons to sue or be sued as representative parties on behalf of all those similar situated. 2. Statutory Requirements: Without certification, judgment would only bind name parties. i. Initial Requirements: Rule 23(a) 1. Numerosity: too many for practicable joinder 23(a)(1) - Normally, more than 80 to 100 will be enough. 2. Commonality: some common question of fact or law 23(a)(2) (Common threats running through the case) either law or fact 3. Typicality: representatives claim must be typical of the class claims 23(a)(3) (Are the named P has similar claims to the whole class members) - It focus on the representative, has to be typical class of the class 4. Adequacy: Representative and lawyer will adequately represent the class 23(a)(4) - Competent in the subject matter (experienced) + No conflict of interest +ability to fund the litigation **Appeal: Fed. R. Civ. P. 23(f) gives the appellate court the discretion to hear an immediate appeal of a decision granting or denying class certification, provided that application is made to the court of appeals within 10 days of entry of the order.

E.

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Hansberry v. Lee [Racially restrictive covenant] Fact: Black land purchaser sued to invalidate racially restrictive covenant and was held to res judicata because an earlier state court class action decision had held the covenant valid Rule: Where the procedure adopted in a class suit does not fairly insure the protection of the interests of absent parties who are to be bound by the judgment, a court violates due process by holding that a judgment rendered in the class suit is res judicata as to members of the class who were not formal parties to the suit. Application: Petitioners were not adequately represented by the plaintiffs in Burke, as required by due process. Rule 23(b): fit the case within a type of class action 1. 23(b)(1) - Numerous necessary parties: action allowed under (b)(1) if individual actions by or against members of the class would create a risk of either A. Inconsistent decisions forcing an opponent to observe incompatible standards of conduct B. Impairment of the interests of the members of the class who are not parties to the individual actions (if they brought the action individually they would move for 12(b)(7) for failure to join indispensable parties under Rule 19) C. Why?mass tort claims where there are so many claims that may be insolvent before all claimants can collect 2. 23(b)(2) Injuncitve or declaratory relief: allows use of a class action if the party opposing the class has acted or refused to act on grounds generally applicable to the class and class seeks injunction A. Why?civil rights cases where class seeks injunction against further discrimination 1. If the classs ultimate seek relief of injunction, the class only need to satisfy the 4 elements and claims the relief of injunction which will be enough to certify class. 2. Class notice is not needed. 3. 23(b)(3) The damage class action: most common class actions; must show, damages A. common question of law or fact predominates over any question affecting only individual members B. class is the superior way to resolve the dispute; factors: i. interest of class members in individually controlling actions (b)(3)(A) ii. presence of any suits that have already been commenced involving class members iii. desirability of concentrating the litigation of the claims in a particular forum iv. difficulties in managing the class action C. Why?used for mass product liability D. Individual issue of damages/ choice of law (different governing law) often prelude certification. E. Notice to the Class: FRCP requires notice only in the (b)(3) class action; but most courts require it in all actions 1. notice by mail should be given to all class members who can be located with reasonable effort 2. publication notice for everyone else 3. list of things you have to tell them is in Rule 23(c)(2)(b) 1. If a member cannot be found, the court excludes the member from the class. 2. If a member does not request exclusion, he will be bound by the judgment. 3. The representative must bear the cost of notice. F. Opting Out: everyone is bound unless you opt out of the 23(b)(3) class action (the others you cannot opt out of) G. Settlement: you must get court permission to settle a class action once it has been certified under Rule 23(e) In all categories of class action! 1. members of (b)(3) class must be given another chance to opt out before settlement Amchem Product, Inc. v. Windsor [Imaginary class] Fact: Windsor sues CCR in tort; motion for class certification and settlement together; class defined as all person who have not yet filed but have been exposed to asbestos. Rule: In certifying a settlement-only class, a court must ensure that questions of law or fact predominate over any questions affecting only individual members, and that the named parties will fairly and adequately protect the interest of the class, as required by FRCP 23(b)(3) and 23(a)(4). Application: Because there was no assurance that the class representatives properly understood their representational responsibilities, the adequacy requirement cannot be said to be met. No class action under 23(b)(3) because lawyers are representing people with conflicting interests (exposed but no claim and inventory exposed with symptoms); benefit of certification and the settlement ii.

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together is that you dont have a trial so you dont have to worry about class manageability under Rule 23(b)(3)(D). Subject Matter Jurisdiction: 1. Most class actions will be certified as federal question 2. look only to the citizenship of the representative citizen; as long as theres diversity and venue is ok, were fine 3. amount in controversy a.Traditional ruleevery member of the class must claim more than $75K; makes Diversity Jurisdiction class actions hard to bring 4. New Ruleits ok if the representatives exceeds $75,000 then we dont care about the individual members claims (SC granted certiorari this year on this question); supplemental jurisdiction expanded to cover 4. Personal Jurisdiction: Phillips Petroleum v. Shutts [Royalties] Fact: Phillips Petroleum sold natural gas, some of which it extracted from land that it leased from other where a representative sued an oil company on behalf of a class of 33,000 people, were owed royalties by Phillips under oil well leases. The notice informed the members that they would be represented by representative and that they would be included in the class unless they opted out of the lawsuit. The trial court decided to apply Kansas contract and equity law, despite the fact that less than 1,000 of the class members resided in Kansas. Rule: Due process requires that, where a forum state wishes to bind an absent plaintiff concerning a claim for money damages or similar relief at law, the plaintiff must receive adequate notice and an opportunity to be heard and participate in the litigation, and the plaintiff must be provided with an opportunity to remove himself from the class. Application: in class actions personal jurisdiction does not require that each class member have minimum contacts with the forum state, but the forum state much have sufficient interest in the claims to assert its state law to all claims; in class actions the court and the class reps protect interests of absent members; mailing notice will suffice; Kansas did not have sufficient interest in claims in other states and Kansas law conflicts with other laws (TX) where many members reside so Kansas law cannot be applied. 3. Unique nature of the class action Statute of limitation freezes: Thus, even though class gets dismissed by certification, they still can bring individual claims. Pattern of practice: E.g.[Wal-mart] had only 1/3 woman managers which compare to other competitor. 1966 middle of civil right movement, and it was the year that Rule 23 was adopted. [Wal-Mart]: Ds argument not centralized and every store has autonomy. Ps strategy: instead of bring in the many claims, limited to the central issue to empathies the commonality. Static data (payroll data), promotion rate, deposition of store manage and middle and upper manager. (Impart to show bias in the culture) Wal-Mart F: Complaint alleges systematic discrimination against female employees in pay and promotions Alleged that under both disparate treatment and disparate impact theories (two theories of liability under Title VII of the 1964 Civil Rights Act) Walmart had a pattern and practice of discriminating against female employees by 1. Not giving them equal pay to men 2. Not giving them a fair shake in promotions to managerial positions Relief sought (R23(b)(2)) injunctive 1. Injunctions against continuing discriminatory conduct 2. Back pay (a remedy available under the statute) for amounts that would have been paid in salary to class members but for the discrimination 3. Punitive damages (which are available under the statute up to a maximum of $300,000 per victim) - Court certified a class under FRCP 23(b)(2) to pursue injunctive relief, back-pay, and punitive damages - As to punitives, court granted notice and opt-out rights (discretionary for b(2) certifications; no notice or opt-out right as to the backpay and injunctive relief) Class action Fairness Act (CAFA) coupon settlement

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