CIVIL PROCEDURE

PROFESSOR BUNDY FALL 2011

UNDERLYING POLICY CONCERNS

Major policies & themes Accuracy Fairness Efficiency/cost Federalism Concerns Want a flexible procedural system in order to prevent procedure from dominating substance. Assure that the merits of the parties claims, not procedural missteps, determining the outcome of lawsuits. Fair system should not only reach the right result, but should also appear fair to litigants. Rules/procedure should not offend fundamental principles of justice. Influences peoples willingness to comply with adverse decisions and builds trust in legal system. Often clashes with efficiency goals How best to minimize the time that courts, parties & attorneys must spend in the litigation process to reduce the costs of litigation. Strong federalism overtones exist in some Civ Pro issues. Focuses on maximizing DPC values without federal courts impinging on state judicial systems.

DUE PROCESS
Procedural Due Process Protected by the 5th (binding on federal government) and 14th (binding on states) Amendments Due Process Clause (DPC): No state shall deprive any person of life, liberty, or property without due process of law. 1. Guarantees every procedural rule/process must meet min. standards of fairness, namely notice, hearing, & an impartial judge. 2. Specifies governments obligation to ensure integrity of competitive process, where parties lack the resources to do so 3. Identifies constitutionally unacceptable dignitary harm & silencing. 4. Governs: (1) personal jurisdiction; (2) right to appointed counsel; (3) any time an individual is facing a deprivation of life, liberty, or property. Fairness: Due process is violated if a practice/rule offends our fundamental principles of justice. Right To Be Heard: An individual has the right to be adequately notified of charges & proceedings and the opportunity to be heard at these proceedings. Critical in ensuring accurate outcomes; each party responsible for its own presentation before a passive tribunal (adversary system) creating an incentive to make the strongest case for ones own positions, and moderating tendency to bring non-meritorious claims. Impartiality: The person/panel making the final decision over the proceedings must be impartial in adjudicating the matter before them. Balancing Test: Determining whether a particular rule/procedure would violate DPC requires consideration of three distinct factors: (1) private interests at stake; (2) risk of erroneous decisions and the value/availability of procedural safeguards; (3) governments interest, including fiscal & administrative burdens of additional procedural safeguards. (Elridge) POLICY: Uphold legal systems values of accuracy, fairness, & cost/ efficiency, encouraging lawful behavior and voluntary compliance with judgments, and minimizing cynicism about the system. 1. Accuracy: Desire neutrality/lack of bias & precision, i.e. to minimize the probability & expected magnitude of error. Intrinsic in this is ones right to be heard. 2. Fairness: Perceptions of fairness influence willingness to comply with adverse decisions & obey the law in every day life. Based on trust in the system, standing (measured by

treatment by authorities) and neutrality (the extent to which people perceive a level and consistent playing field) 3. Cost: Must balance financial costs and strain on legal system with competing procedural values. Right to Counsel in Civil Cases RULE: An indigents right to appointed counsel is measured on a case-by-case basis by considering relevant precedent and by assessing the interests at stake via the Mathews v. Elridge test, balanced against the presumption of the right to appointed counsel only in criminal cases, or in civil cases when D may be deprived of physical liberty. NOTE: This does not mean that every D whose physical liberty is at stake is entitled to counsel, only that those are the only cases in which the right has ever be shown to exist. Elridge Factors: Weigh the (1) private interests, (2) governments interests, and (3) risk of erroneous decisions against the stakes of deprivation of Ds personal liberty. If the private interests > the States, and the risk of error was great, the Elridge factors would overcome the presumption against the right to appointed counsel and due process would require appointment of counsel. CASE AUTHORITY FOR DUE PROCESS
Lassiter v. Dept. of Social Services Facts: State sued D, an indigent parent, to terminate Ds parental rights to her son. D was not appointed counsel for the hearing and represented herself. Holding: Court held D not entitled to appointed counsel because although Ds interest & state interests in protecting the child was high, risk of error was low due to the lack of expert testimony & complicated evidence. Dissent: Deprivation parent experiences at loss of a child is severe enough to be compared with the loss of personal liberty. Trial was similar to a criminal prosecution, and the common nature of parents in these situations is to be indigent, lack education, and be easily intimidated by authority figures. Therefore, risk of error without representation is great. Facts: D owed back child support to P, and imprisoned for contempt of court for failing to pay. Issue: Is an indigent always entitled to appointed counsel in proceedings where there is a risk of incarceration? Holding: Court held there is no presumptive entitlement to counsel even when there is a risk of incarceration. It is unlikely that P (whose interests are ultimately the cause of the courts actions) will be represented by counsel, and the crucial element to both Ds applicability for state-sponsored counsel and his ability to pay child support are capable of being decided without legal representation. There are also available safeguards to avoid erroneous deprivations of liberty such as financial questionnaires and notice to D that his ability to pay is at issue.

Turner v. Rogers

BEFORE STARTING A LAWSUIT IN FEDERAL COURT

Reqs

Personal Jurisdiction Subject Matter Jurisdiction

Basics of Personal/ Territorial Jurisdiction (PJ)

Service/Not ice

Venue

PERSONAL JURISDICTION
Defined: The power of a state court to engage in binding adjudication over a person or thing. NOTE: Personal jurisdiction is one of the Rule 12(b) defenses that may be waived if not timely & properly asserted. Framework for PJ: The Power Theory of Jurisdiction Stemming from the field theory concept of sovereignty that states resemble individual nations, jurisdiction was originally based on the states power over people within that states borders;

14th Amendment: Government must respect all of the legal rights that are owed to a person according to the law. Article IV Full Faith & Credit Clause: Requires states recognition and enforcement of other states civil judicial proceedings.

however, a state had no authority to exercise jurisdiction over persons outside its territorial boundaries. The adjudication of Pennoyer v. Neff set the foundation for a states ability to protect its citizens in dealings with non-residents, establishing the states authority to bind non-residents to judgments within the state based on physical presence or attachment theory. Modern PJ: To meet the growing complexities of national markets and a mobile society in the 20th century, courts developed a new test for determining whether a states assertion of jurisdiction over a non-resident would comport with due process, incorporating the underlying presence requirement from Pennoyer to base jurisdiction on the level of Ds activities in the forum. Although the amount of contacts sufficient to justify a courts jurisdiction is in flux, it is determined by balancing the continuousness of the contacts and the relation of the contacts to the cause of action. The decision in International Shoe marks the shift from the requirement of presence due process-oriented system of jurisdiction. In addition, notice was henceforth recognized as an independent requirement outside of the assertion of PJ. Understanding PJ:
DPC/14th Amendment & Article IV: Full Faith & Credit State Long-Arm Statute Adequate Notice

In personam (people/corpora tions)

In rem (property)

Quasi in rem (prop-->people)

Consent

Domicile

Presence

Minimum Contacts

Type I Like in rem w/ specific parties

Type II "Attachment J"

Specific

General

Longarm Statutes: A law enacted by each state that allows its court system to exercise jurisdiction over an out-of-state D, provided that he has sufficient min. contacts with the forum. Limitations on PJ found in long-arm statutes are distinct from constitutional limits imposed by min. contacts test. 1. DPC does not actually confer PJ on state courts; it only defines outer bounds of permissible jurisdictional power. It is up to each states legislature to actually grant the power to its courts to exercise PJ by statute. 2. Some states have enumerated specific activities likely to satisfy the Shoe min. contacts test, such as owning prop. within the forum state, committing a tort within the state, transacting business with state, etc. Others have more general provisions, stretching the forum states authority over a D as long as jurisdiction is not inconsistent with constitutional restrictions. 3. POLICY: Ensures state citizens a local forum in which to litigate causes of action that arise from the activities of non-residents. Constitutional Basis: 1. 14th Amendment sets the outer limits for the courts power to subject persons or things to liability. a. Forbids states from depriving any person of life, liberty, or property without due process of law. A state would violate this guarantee if its courts entered judgments against Ds without following a fair judicial proceeding. b. Fair procedure includes not only such traditional elements as the right to counsel or to cross-examine witnesses, but also appropriate limits on the places where a D

can be required to defend a lawsuit. 2. The court must have given D adequate notice of the action against him, and an opportunity to be heard as required by DPC. 3. State courts failure to appropriately assert jurisdiction or provide notice to D would lead to invalidation of the judgment as a violation of due process. 4. NOTE: This is a different type of due process than Lassiter; here, due process limits the states power to enter judgments over non-residents in accordance with procedural fairness. Types of PJ: 1. In Personam: An action directed towards a person or a corporation 2. In Rem: An action regarding property within a state to resolve rights in property against the whole world. 3. Quasi In Rem: (Type I): Jurisdiction regarding rights in property against specific individuals; (Type II): Jurisdiction based on attachment; property is seized by the state as a jurisdictional vehicle for the exercise of in personam PJ against a non-resident. Bases for In Personam PJ: 1. Consent: (General Jurisdiction) a. By Appearance: i. Ds voluntary appearance before the court ii. Filing suit in a particular forum. iii. A corporation who appoints an agent for service of process iv. Failing to make a timely objection pursuant to FRCP Rule 12(b). b. BUT NOTE: D may make a special appearance to contest PJ without his presence constituting submission to jdx. c. By Contract (Forum Selection): i. A party may waive jurisdictional objections and contract specifically that any dispute arising out of the contract will be adjudicated in the courts of a particular place. ii. These forum-selection clauses are generally enforced provided they are fundamentally fair, i.e. unless there is a strong showing that it should be set aside, even if the contract was made without equal bargaining power between the parties. iii. Forum clauses may not be held valid if they lessen, weaken, or completely bar Ps ability to bring suit, if it is an attempt by the corporation to avoid liability for injuries (an exculpatory clause), if it requires suit in a foreign forum, or if it is otherwise contrary to public policy. iv. Must not be exculpatory! 2. Domicile: (General Jurisdiction) a. Individuals: Ones true and fixed home to which one intends to return after any absence. One established, domicile continues until superseded by a new domicile. b. Corporations: Its place of incorporation, principal place of business, or where it has a sufficient level of business activity that is continuous, systematic, and involves an extensive physical establishment. c. POLICY: Assures that there is at least one place D can always be sued. d. POLICY: The state accords its citizens certain privileges, and offers protection to their persons and property; therefore it is only fair that a state may hold its citizens responsible to answer suit. States authority is not terminated by the mere fact of a citizens absence from the state provided he is still domiciled there. 3. Presence in State (Tag J): (General Jurisdiction) a. Ds physical presence in the forum to receive service of process is a sufficient basis for the court to acquire PJ over him, no matter how brief his stay is. b. Presence test has not been overruled by a court, although there has been contestable reasoning for its maintenance as a valid justification for the assertion of PJ. c. Does not work against a corporation by serving an individual employee of the

corporation within a state that the corporation does not have min. contacts with. d. No long-arm statute needed 4. Min. Contacts: (Specific or General Jurisdiction) Checklist for Modern Personal Jurisdiction (1) Does the state long-arm statute authorize the court to exercise jurisdiction under the circumstances? (2) Is the assertion of jurisdiction constitutional under the DPC? (a) Does D have sufficient min. purposeful contacts with the forum? (b) Does the claim arise out of or relate to Ds contacts? (c) Does the exercise of jurisdiction comport with traditional notions of fair play & substantial justice? (3) Was notice given to D in a manner reasonably calculated to inform him of the action affecting him? a. State may not make a binding judgment in personam against an individual or corporate D with whom the state has no contacts, ties, or relations.
Single or sporadic contacts unrelated to cause of action No jurisdiction Single contact arising out of relating to cause of action Specific jurisdiction Continuous but limited contacts arising out of or relating to cause of action Specific jurisdiction Substantial or pervasive contacts General jurisdiction

Point where contacts are sufficient enough to justify assertion of general jurisdiction

b. Applies to individual as well as corporate defendants. c. Requires application of a three part test: (1) Ds purposeful availment/min. contacts with the forum state (2) the cause of action arising out of/relating to Ds contacts with the forum, and (3) the states assertion of PJ comporting with traditional notions of fair play & substantial justice. d. POLICY: A corporation that chooses to conduct activities within a state accepts (implicitly) a reciprocal duty to answer for its instate activities in local courts. D should understand that its activities within the state will have an impact there, and that those activities may lead to controversies & lawsuits. A state has a right to enforce the orderly conduct of affairs within its borders by adjudicating disputes that arise from such in state contacts. Establish Purposeful Availment & Min. Contacts: 1. Activities Generally: Is the quality and nature of the contacts sufficient to support jurisdiction? 2. Foreseeability: Would D reasonably anticipate being haled into court in the forum? a. This is not just the likelihood of a product made by D ending up in a particular state, but rather that D sought economic benefits from his contacts with the state that would justify his submission to suit. 3. Purposeful Availment: Did D avail himself of the privilege of conducting activities in the forum, obtaining benefits from his purposeful activities and invoking the benefits & protections of the forum states laws? a. Submission to PJ is the price Ds pay for deliberate efforts to derive benefits from or conduct activities in a forum state. 4. Purposeful Direction: Did D act directly in the forum state, or outside the state with the intention of having an influence inside the forum? Stream of commerce + a. Stream of Commerce: Much debate has swirled around the application of the purposeful availment requirement in cases where Ds goods reach the forum

through the stream of commerce (i.e. where a non-resident corporation does not import products into the forum, but sells them to an intermediary company that did). Courts are divided as to whether mere awareness that the stream of commerce may move goods into the forum satisfies purposeful availment. WWVW suggested yes, but majority in Asahi rejected this premise. 5. Contract: Whole contractual relationship may be sufficient to confer jurisdiction. a. Burger King Factors: (1) choice of law provision? (2) regular payments/reports into forum state? (3) how were contract terms obtained? (fraud/unequal bargaining power) (4) length of contract? Consider Whether Action Aries Out Of or Relates To Ds Contacts: 1. Because the court derives its power to exercise PJ from Ds voluntary contacts with the state, that power should be limited to cases arising out of those contacts. 2. Specific Jurisdiction: PJ is confined to the adjudication of issues arising out of or related to the very controversy that establishes jurisdiction. a. Level of activity that gives rise to specific jurisdiction may be continuous or limited, and the commission of a single or occasional act may be sufficient to impose an obligation because of the nature & quality of the act. 3. General Jurisdiction: If in-state contacts are so continuous, systematic, & substantial, D may be subject to suit in the forum over any claim. a. Level of contacts must be substantially higher to support assertion of general jurisdiction; of such a nature that it is fair to hold D accountable for basically any claim. b. Often connected to an idea of home. Because contacts are so substantial, D should expect to be haled into court and would suffer no inconvenience from defending there. (Goodyear) Apply Appropriate Balance of Fair Play & Justice: 1. Once min. contacts have been found, other factors may influence the jurisdictional calculus in determining whether the exercise of PJ would comport with fair play & substantial justice. May tip scales in favor of or against a state courts authority to exercise jurisdiction over a non-resident D. a. Forum states interest in providing redress to its citizens. b. Ps interest in obtaining relief in a convenient forum. c. States interest in enforcing its own laws & policies. d. States interest in regulating business within its borders. e. Inconvenience to D in defending suit away from home. 2. These factors in themselves are not sufficient to support jurisdiction if min. contacts is lacking, and it is unclear whether they are independently sufficient to defeat jurisdiction if min. contacts are present. In Rem Jurisdiction: Property in forum state is the source of controversy. 1. POLICY: Indicates expectation of receiving benefit/protection of state laws. Quasi In Rem Jurisdiction: 1. Shaffer Rule: Because quasi in rem type II (attachment jurisdiction) is really just a roundabout way of referring to jurisdiction over a person, that exercise of jurisdiction should be evaluated by the same standard that governs in personam actions in order to meet the due process requirement, i.e. the minimum contacts test. POLICY: Min. contacts standard protects Ds individual liberty interests and ensures states dont encroach on each others sovereign interests. Although nationalization of the economy de-emphasized state boundaries, loyalty to the Framers requires federalism not to disappear completely; however, individual liberty > sovereign interests of the state.

CASE AUTHORITY FOR PERSONAL JURISDICTION Case Pennoyer v. Neff (affd in Burnham v. Supreme Ct.) International Shoe v. Washington Brief
Facts: Quasi in rem action to recover unpaid legal fees against an out-of-state person.

Rule(s)
Notice by publication is sufficient for in rem actions In-hand service of process is a valid form of jurisdiction over D (no matter how briefly he was in the forum and regardless of his purpose in being there). DPC protects an individuals liberty interests in not being bound by judgments of a forum in which he has established no meaningful contacts. Ds contacts with state must be such that maintenance of the suit does not offend trad. notions of fair play & justice. Dicta: Contacts that are systematic and continuous may give rise to PJ over claims unrelated to Ds contacts with forum (i.e. general jurisdiction). The foreseeability that is critical for due process is that the relationship between D and the forum is such that he would reasonably anticipate being haled into court there. Burden on D may also be considered in light of other relevant factors. Principle of federalism & state sovereignty affirm the importance of limitations on PJ must be some contacts to justify jurisdiction.

Facts: Shoe is a DE corp. with its principal place of business in MO who had no contracts, stock, or deliveries in WA but had salesman who lived there and solicited orders only within WA and earned commissions based on those sales. Court: Shoes activities were neither irregular nor casual, and it received benefits and protects of state laws. Sufficient contacts.

World Wide Volkswagen v. Woodson

Goodyear v. Brown Burger King v. Rudzewicz

Facts: NY residents were in a car accident in OK while driving a car purchased from D1, a NY dealer. Ps sued D1 & D2 (the NY distributor) as well as the foreign manufacturer and importer. Neither D1 nor D2 did any business, ship or sell products, or advertise in OK. Court: Two functions of min. contacts: (1) to protect D from litigating in a distant or inconvenient forum; (2) provides limitations on states asserting power through courts. Even though it is foreseeable that a product (a car) will end up in a different state, by this standard a seller of any portable product would be essentially subject to nationwide PJ. Dissent: Ds did have purposeful contacts with the state because they purposefully injected the car into the stream of commerce, and it is reasonable to anticipate a moving vehicle to get into accidents in other states. Court: Held that Goodyears subsidiaries were not amenable to suit in a state on claims unrelated to any activity by them in the state. Facts: D, a MI resident, sought out to form a franchise relationship with P, a FL corp. D signed contract establishing 20 year relationship with P, which included a FL choice of law provision. D negotiated directly with Ps FL HQ & repeatedly sent payments to FL. Court: Court analyzed purposeful contacts in terms of availment. D purposefully reached out to BK in FL to create a business arrangement. Ds were sophisticated businessmen (reflected in the extent of negotiations with Ps) and it was clear that D had created continuing obligations between himself and P through contract & payments. All the above made it reasonably foreseeable that D would be haled into court in FL.

Clarifies Shoe test for general jurisdiction; may be exercised over a corp. who is at home in forum. A contract alone does not automatically establish min. contacts with forum, but must be evaluated in light of prior negotiations, contemplated future consequences, terms of the contract, and the parties actual course of dealing. In proving min. contacts, P must show that D purposefully availed itself of the privilege of conducting business with forum, thus invoking benefits/protections of its laws. Once it has been established that D had purposeful contacts, those contacts may be considered in light of other factors to determine whether the assertion of jurisdiction is fair. A choice of law provision carries significant weight in analysis, because it indicates than the out-of-stater has chosen to receive the benefits of the states legal system. Invalidation of quasi in rem, type II PJ. Where the property serving as basis for PJ is completely unrelated to Ps cause of action, the presence of property alone absent other ties between D and the state will not support jurisdiction.

Shaffer v. Heitner

Facts: Greyhound, incorporated in DE, lost a large anti-trust judgment and P initiated a shareholder derivative suit in DE against officers and directors of the corporation (i.e. Shaffer). P filed a motion for sequestration of stock owned by Ds in order to obtain quasi-in-rem jurisdiction in DE, deemed the legal situs of the stock. Court: PJ must be evaluated

J. McIntyre v. Nicastro

according to min. contacts standard. DEs assertion of PJ based solely on presence of Ds property violated DPC. Facts: P injured his hand in NJ using a machine that D manufactured in UK, where company is incorporated and operates. D didnt itself sell machines to buyers in US except for US distributor. D attended conventions in US, but never in NJ, and no more than four machines ever ended up in NJ. P filed suit in NJ. Court: SCotUS majority held no PJ.

No affect on in rem or quasi in rem, type I. Plurality: Due process based on tradition, not fairness, and tradition focuses on voluntary submission to a sovereign as basis of PJshown through his purposeful availment/targeting of the market in that state. States are separate sovereigns from the US as a whole. Concurrence: Rejects pluralitys view that PJ depends on submission to sovereign and that purposeful availment requires targeting. Aims for a narrow reading; there is no precedent availment standard. Concerned about the commercial implications of pluralitys holding & its impact on smaller, less sophisticated Ds or internet distributors. Dissent: DPC is about individual liberty interests, not federalism, which are judged by reason & fairness. PJ not unfair when evidence shows intl corp. targeted US as a single market without excluding specific states, especially in light of particular states specialized markets for Ds products. Jurisdictional calculus indicates a strong state and P interest in bringing suit locally, and a low inconvenience to D. In order to exercise general in personam jurisdiction, partys contacts with forum must be of a continuous and systematic nature. Mere purchases in the forum, even if they happen regularly, are not enough for the exercise of general PJ.

Helicopteros v. Hall

Asahi v. Superior Ct.

McGee v. Intl Life Ins.

Carnival Cruise Lines v. Shute

Facts: D, a Colombian corp., purchased most of its helicopter fleet and obtained training for its pilots from a TX manufacturer, but had no place of business in TX. One of Ds helicopters crashed, killing four US citizens. Tort action was brought in TX. Court: Ds contacts with TX did not satisfy the requirements of DPC, ergo no PJ. NOTE: There were no claims for breach of contract; since Ds CEO had negotiated the contract in TX, it is likely the court would be able to exercise PJ over D for breach of contract claims. Facts: D was a Taiwanese manufacturer of a defective part, who sold later sold that part to a larger company that later distributed product in forum where accident occurred. Court: Min. contacts requires that there be some act by a party which would purposefully avail itself of the privilege of conducting activities within the forum state (i.e. advertise or market there, or conform to specific state needs/regulations). A party must do more than intentionally put goods in the stream of commerce even if it is expected that the products may reach the forum. Facts: P, a CA resident, purchased an insurance policy from a TX corp. D had conducted no other business in CA except for this one policy. Court: CA court did not violate DPC. D maintained a financial relationship with a CA resident, and CA had a strong interest in protecting its residents. Facts: Ps were passengers on a cruise ship operated by D. Shutes had bought tickets in WA, thus agreeing to a contract with a forum selection clause mandating that injured parties would sue in FL to the exclusion of all other jurisdictions. Court: Court held that forum selection clauses made with unequal bargaining power between parties are subject to judicial scrutiny for fundamental fairness, but where they are not lacking in fairness, they should be

The mere awareness that a product may reach a remote jurisdiction when put in the stream of commerce is not sufficient to satisfy the requirement for min. contacts under the DPC.

A single contact may be grounds for the assertion of specific jurisdiction.

Forum clauses may be enforceable so long as they arent exculpatory, i.e. lessen, weaken or avoid the right of a plaintiff to trial in a court of competent jurisdiction.

enforced. Here, absent a forum clause D could be subject to suit in too many places; the clause eliminates this uncertainty and avoids costly pretrial motions, the savings from which are passed down to the consumer in the form of lower ticket prices. As to whether it was fair, court must consider whether D was in bath faith discouraging legitimate claims, and decides Ds clause isnt exculpatory, therefore fair. Dissent: Courts should take a closer look at contracts between parties with unequal bargaining power, especially take it or leave it contracts like this, which wasnt revealed until after non-refundable tickets were purchased. In the past forum clauses were found contrary to public policy and unenforceable if they were (1) not freely bargained for, (2) create addl expense for one party or (3) deny one party a remedy.

NOTICE
Notice & Opportunity to be Heard FRCP Rule 4: Service of Process Modern Rule: Notice reasonably calculated Requirements of Due Process: Due process not only requires that the court must have power to adjudicate, it also demands that D have proper notice of the institution of proceedings and an opportunity to be heard; this is an additional aspect of the due process limitation on a courts ability to exercise jurisdiction. Service of Process: Means of providing notice to D at the start of a lawsuit by delivering a summons to appear in court and a copy of the complaint. 1. In-Hand Service: Personal delivery to or near the person, if it is made clear what the documents are. Always sufficient to provide notice. 2. Substituted Service: Delivery at Ds dwelling or usual place of abode to someone of suitable age or discretion. 3. By Mail Service: Two copies of summons & complaint may be mailed to D with request that they return a waiver of service. 4. Posted Service: In certain circumstances, notice may be posted on Ds door. 5. Condition of Business: State may require corp. to appoint an agent in the state to accept service of process. 6. Service by Publication: Notice may be published in a local newspaper. Typically only allowed by the court when other options are unavailable, but may be used to notify D whose property has been seized by the state. a. Publication is a notoriously bad way of providing notice due to the sheer unlikelihood of a party actually seeing it. This is even more true if the party is a non-resident. b. Publication is usually sufficient for disputes of property located in the state because the person who owns the property and hasnt realized its under scrutiny has either abandoned ittherefore surrendering his interest in itor has left some caretaker who would presumably pass along notice beyond publication itself. c. Resort to publication is a customary substitution for notice for persons whose location or identity is not possible or practical to ascertain. d. Publication may be more of a symbolic gesture of notice than actual. MODERN RULE: DPC requires notice be reasonably calculated under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Calculating Adequacy: The constitutional adequacy of service must be judged on a case-by-case basis by the practicalities of giving notice. 1. Factors (similar to Elridge) include (1) interest of individual parties, (2) graveness of the risk of lack of notice, (3) cost of improved noticelow for publication, much higher for inhand. 2. Means employed must be such that one who is desirous of actually informing the absentee

D might reasonably adopt to accomplish it. 3. Reasonableness test: It is not necessary that D actually learned of the suit; rather, service must have been reasonably likely to inform him (as determined by statute), even if it actually failed to do so. 4. D must be given adequate time to prepare a defense and opportunity to present that defense. CASE AUTHORITY FOR NOTICE
Mullane v. Central Hannover Bank & Trust

Facts: Bank brings action against all trust beneficiaries to get a binding judicial declaration, which requires notice & jurisdiction. Bank provided notice to all by publication, even though it had the names and addresses of the beneficiaries. Court: Publication was insufficient notice to those beneficiaries whose names and addresses were known to the Bank, but for those who were unknown or unlocatable, publication was a reasonable method of notice.

SUBJECT MATTER JURISDICTION

Basics of Federal Subject Matter Jurisdiction (SMJ) Art. III 2: Fed. cts. may hear cases between states, between citizens of different states, between citizens & aliens, cases involving foreign ministers, admiralty & maritime cases, cases arising under Constitution & federal law. 28 U.S.C. 1331: Statutory grounds for federal question jurisdiction 28 U.S.C. 1332: Defined: A courts authority to adjudicate a particular type of suit. NOTE: Rule 12(h)(3) dictates that parties cannot waive or consent to lack of SMJ, and a defect in SMJ may be raised at any point during trial or on appeal, by either party or by the court. State Courts: Have courts of general jurisdiction, as well as courts of limited jurisdiction that only hear cases of particular subject matters. Federal Courts: Federal courts are all courts of limited jurisdiction, capable of hearing only those disputes for which jurisdiction is specifically conferred by both the Constitution (Art. III 2) and federal statute (28 U.S.C. 1331-32).
Federal Q Does claim arise under Constitution, treaties, or laws of US? Is complaint well plead? E.g., does NOT plead possible defenses as bsis for SMJ? Remember, no $$ min. Diversity Diversity must be complete Citizenship: Persons (where you intend to remain); corporations (state of incorp. & PPoB) Amount in controversy > $75,000. Supplemental Con. Power: Original claim properly brought in federal court & add'l claim so related as to form the same constitutional case/controversy under Art III = CNOF (Gibbs test). Stat. Power: Federal Q: CNOF v. loose factual relationship. Diversity: add'l parties cannot defeat complete diversity (Kroger test). Discretionary Power

Federal Question Jurisdiction: Federal courts have authority to hear cases involving questions of federal law. 1331: The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. Well-Pleaded Complaint Rule: Jdx determined by whether what necessarily appears on the face of Ps complaint, stripped of anticipated defenses, reveals claim arising under Constitution or laws of US. POLICY: Efficiency; allows courts to easily determine SMJ from the outset of the case based on Ps complaint, without having to wait for an answer or otherwise invest any judicial energy adjudicating claims over which it has no jurisdiction. CASE AUTHORITY FOR FEDERAL QUESTION JURISDICTION
Louisville & Nashville R.R. v. Facts: Ps claim in a federal suit that D, a railroad, breached its settlement agreement to give Ps free passes. After honoring the contract for over 30 years,

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Statutory grounds for diversity jurisdiction.

Mottley

D refused to renew passes because Congress passed statute barring R.R.s from giving free transportation. Mottleys brought action for breach of contract. Court: Breach of contract did not require Ps to prove any proposition of federal law, and the statute was only in question because it was clear that D would rely on it in defense. This was insufficient for federal SMJ; it was up to the Ps to state a federal question issue in their complaint to qualify.

Diversity Jurisdiction: Federal courts have power to adjudicate claims based on complete diversity of citizenship between parties. 1332: (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum of $75,000, and is between (1) Citizens of different states; (2) Citizens of a State and citizens or subjects of a foreign state; (3) Citizens of diff. states and in which citizens/subjects of a foreign state are addl parties; and (4) A foreign state as P and citizens of a state or different states. For the purposes of this section, an alien admitted to the U.S. for permanent residence shall be deemed a citizen of the state in which such alien is domiciled. (c) For purposes of this section (1) A corporation shall be deemed to be a citizen of any state by which it has been incorporated and of the state where it has its principal place of business (exception for insurance corps.) Complete Diversity: 28 U.S.C. 1332 requires all Ps must be of a different citizenship from all Ds. This is a statutory not a Constitutional requirement. Amount in Controversy: In all cases in which diversity is the sole basis for SMJ, the amount in controversy must exceed $75,000. 1. The amount of each persons claim must individually exceed statutory requirement. 2. If multiple claims, they may be aggregated order to meet minimum. 3. Legal Certainty Test: A D opposing SMJ on amount in controversy grounds must prove to a legal certainty that P could not recover damages in excess of the jurisdictional minimum. Corporate Citizenship: Determined by place of incorporation AND principal place of business; compare both against citizenship of opposing party to establish diversity. Associations/Partnerships: Including labor unionsshare citizenship with every member. POLICY: Prevents unfair judgments due to regional biases against an out-of-state D who fears prejudice in local state courts or Ds in rural areas who might also face prejudices in urban settings. In addition, interstate trade was very important and diversity jurisdiction allowed federal courts to create a common law standard for commercial transactions. The latter issue is no longer applicable after Erie decision (in a diversity case court must apply state law) and it is unclear whether regionalism concerns are still valid. CASE AUTHORITY FOR DIVERSITY JURISDICTION Mas v. Perry Facts: Ps rented apartment from D in LA; invasion of privacy (state law) case. P1 was a citizen of MS, and her husband P2 was a citizen of France with no permanent residence in U.S. D moved to dismiss on the grounds that there is no diversity of citizenship because all parties were domiciled in LA. Court: Diversity jurisdiction is valid: 1332 does not apply to aliens who are not permanent residents, so diversity against P2 is valid. P1 is still a citizen of MS (where her family lived) until she made the decision to change domiciles. Therefore all Ps are different citizens than all Ds. NOTE: court spends a good deal of time talking about $$ in controversy; under SuppJ statute, court would have authority to hear P2s claim even though it was less than min. jdx. amount regardless.

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Supplementa l Jurisdiction (SuppJ) 28 U.S.C. 1367: Supplemental jurisdiction

Defined: The power of the federal court to hear addl claims substantially related to the original claim even though the court would lack SMJ to hear addl claims independently. POLICY: Encourages judicial efficiency & fairness by eliminating the need for separate trials hearing essentially the same facts yet potentially reaching opposite conclusions. Also, supports notion that for federal claims, P has a right to try that claim in federal court. Removes incentive to go to state court when parties want efficiency by allowing Ps with federal claims to be able to seek the same efficiency in federal court. Requirements:
Stems from Gibbs; court has constitutional power to hear related claims if there is: (1) a proper, non-frivolous claim within the jdx of federal court, and (2) the add'l claim arises from the same CNOF as jdx-conferring claim.

(1) Constitutional power

(2) Statutory grant per 1367

Federal courts can't hear claims just because they are within the constitutional scope of Art. III as explained by Gibbs; Congress must authorize them to hear the claims as well, by statute. (Kroger) As long as a federal court has a basis for original jdx over the case, 1367(a) broadly grants statutory authority to hear related state claims that meet Gibbs constitutional test. BUT per 1367(b), certain claims in diversity cases, which would defeat diversity, are carved out.

(3) Discretionary power

Once court determines it has authority to hear add'l claims, it must decide based on various discretionary factors (from Gibbs, codified in 1367(c)) whether to do so. Factors: (1) claim raises a novel or complex issue of state law; (2) the claim substantially predominates over the claim over which district court has original jdx; (3) D. Ct. has dismissed all claims over which it has original jdx; (4) there are other compelling reasons for declining jdx.

Constitutional Power: Does federal court have consitutional power to hear state law claim? 1. Article III grants jdx over entire cases, not just transactions or claims. If a case includes a claim that is jdxly proper under Article III, court has constitutional power to hear entire dispute. 2. FIRST: So long as P asserts (1) a proper, non-frivolous claim based on federal law or diversity, federal court has the power to hear other claims arising out of the (2) same common nucleus of operative facts such that P would ordinarily be expected to try them in one judicial proceeding (Gibbs). 3. SECOND: Once court ascertains it has power to hear related claim, it must determine whether it makes sense to exercise that jdxcodified in 1367(c). Statutory Power: Constitutional power not enough, Congress must authorize SuppJ too. 28 U.S.C. 1367 broadly authorizes federal courts to exercise SuppJ. 1367 (a) Except as provided in subsections (b) and (c)in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder of additional parties. (b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the FRCPwhen exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332. 1. Federal Q Cases: If P brings a proper federal claim over which D. Ct. has original jurisdiction, court may hear all of the state-law claims that are part of the same

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constitutional case or controversy as the jdx-conferring claim. a. SPLIT: Most courts use CNOF principle. Two distinguished circuits are willing to give 1367(a) a broader reading: Judge Fletcher in Jones v. Ford suggested only loose factual connection is necessary. No SCotUS ruling on this. b. State Claims, No New Parties: SuppJ applies----- If claim satisfies Gibbs test c. State Claims, Addl Parties: SuppJ applies-------- it satisfies the statute. 2. Diversity Cases: There is SuppJ in many cases where the original claim is based solely on diversity, with a few important carve outs. An attempt to codify Kroger ruling. a. Compulsory Counterclaims (13(a)): Supp J --------- Claim that bears a logical b. Cross-claims (13(g)): Supp J------------------------------ relationship to main claim c. Impleader of 3dPD, Claims by 3dPD: Supp J--------- or from same T/O = SuppJ. d. Parties Joined Under Permissive 20(a): Supp J applies for amount in controversy purposes, but does not remove requirement of complete diversity. e. Ps Claims against 3dPD: NO SuppJ----------------- Captures Kroger courts f. Permissive Counterclaims: NO SuppJ-------------- hostility towards Ps. g. POLICY: Court is worried that P will sue diverse D and wait for him to implead non-diverse 3dPD to circumvent complete diversity requirement. Efficiency isnt an issue because P can sue diverse & non-diverse Ds in state court, so it is ok that court is hostile towards P. BUT court is more lenient towards Ds impleader claims because they pose less of a threat of exploiting some gap in diversity requirement; Ds are only in federal court because P brought them there. As such, Ds are differently situated and have a better argument for allowing SuppJ over addl claims that are part of the same constitutional case. Discretionary Provision: Second part of Gibbs test. 1367(c): (c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 1. Judges have a great deal of liberty in deciding whether to allow SuppJ. 2. Where at least one of the 1367(c) factors is applicable, federal court should not decline to exercise Supp J UNLESS it also determines that not doing so would not promote the values articulated in Gibbs: economy, convenience, fairness, & comity. 3. May be an invitation to court to think about SuppJ & discretion as a case management tool. 4. POLICY: 1. Novel state law: Federal courts would rather defer to the state as an independent foreign, to their power & expertise in construing their own laws. 2. Frivolous federal claim: If grounds for federal action is really not that important, why waste judicial resources? 3. Dismissed federal claim: Why continue to invest federal effort in a case that no longer has federal issues? BUT federal court may nevertheless maintain jdx if it chooses to so exercise its discretion. 4. Exceptional circumstances: Court in Jones advises judges not to use this very often. In declining jdx on this basis, court should identify truly compelling circumstances that militate against exercising jdx. CASE AUTHORITY FOR SUPPLEMENTAL JURISDICTION United Mine Workers Facts: Gibbs hired to supervise new mine. Local union demonstrates v. Gibbs violently & prevents Gibbs from doing job. Gibbs brings suit against national union, on federal law claims for bad boycott & state law claims for conspiracy to interfere with contact. Court: If federal court

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Owen Equipment v. Kroger

Jones v. Ford

has a basis for SMJ over one of Ps claims, it may hear other claims that arise out of the same nucleus of operative fact in order to guarantee efficiency & fairness. Framers must have understood that cases involve multiple claims, and therefore intended for federal court to hear entire dispute, as long as there was a federal hook from which to append the other, jdxly insufficient claims. Facts: Iowa P sues Nebraska corp., who brings a 3d party complaint against a Nebraska/Iowa corp, destroying diversity. Original D motions for SJ and drops out of case, so P asserts right to bring a claim against 3dPD. She absolutely has this right under FRCP. Issue: Does P have a right to bring a suit against a non-diverse 3dPD under SuppJ? Court: Court is worried about Ps using this as a tool to circumvent diversity. On the one hand, P isnt responsible for bringing in 3dPDD is. The argument about Ps gaming the system seems artificial and is not actually at issue in the present case. Why is it not enough for courts to deal with in discretionary terms? Nevertheless, court says there is never SuppJ between original P and non-diverse 3dPD, whether the diverse D is still in the suit or not. Facts: Class action suit against Ford over discriminatory loan practices. Ford counterclaims for set-off for unpaid loans. Issue: Is this a compulsory or permissive counterclaim? What would be the effect if compulsory? If permissive, is it still within SuppJ? Within courts discretion? Court: Not a logical relationship between original suit & set off, only that if Ps had not entered into contract they would not have been discriminated against, and also wouldnt have defaulted on loans. Court holds there is not a large evidentiary overlap, but counterclaims & underlying federal claim bear a sufficient factual relationship to constitute the same constitutional case. This means constitutional case may in fact be broader than the Gibbs CNOF standard.

VENUE
Basics of Venue 28 U.S.C. 1391: Statutory basis for venue Defined: Venue refers to the place within a sovereign jurisdiction in which a given action is to be brought. NOTE: It becomes a consideration only when jurisdiction over the parties has already been established; venue does not confer SMJ or PJ. NOTE: Pursuant to Rule 12, improper venue is one of the jurisdictional objections that are waived if not properly asserted. POLICY: Venue privilege is purely a matter of convenience for D and involves no element of forums power to adjudicate; therefore its absence is less severe than the absence of PJ. State Venue: Determined by statute. Most common provision is based on county in which D resides, but venue is also determined sometimes by where the cause of action arose, where D has a place of business, or where P does business. An out-of-stater can be sued in any county. State venue practices run parallel to federal practices, and state courts have similar systems for evaluating transfer, FNC, etc. Summary of Federal Venue:

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Venue
Underling Policies: Judicial Efficiency Limit Forum Shopping Convenience of Parties Venue Rules 28 U.S.C. 1391
Diversity Cases 1391(a) (1) Any district where any D resides, if all Ds reside in the same state. (2) Any district where a substantial part of the events occured or where disputed property is located. (3) Where any D is subject to PJ only if no venue is available under (1) or (2). Federal Question Cases 1391(b) (1) Same as in diversity cases (2) Same as in diversity cases (3) Where any D can be found if no other venue is available under (1) or (2). Different language, but probably means the same thing.

Transfer of Venue 28 U.S.C. 1404

1404 Balancing Test Convenience of parties & witnesses + interests of justice must substantially outweigh P's interest in choice of forum. Restrictions (1) Federal courts NEVER transfer to state courts. Use FNC in such cases. (2) State courts NEVER transfer to federal courts or to different states. Use FNC in such cases.

Forum Non Conveniens

Balancing Test
Private Interest Factors: (1) Access to evidence (2) Convenience of/Ability to compel attendance of witnesses (3) Difference in substantive law is NOT decisive in dismissing on grounds of FNC, unless law in the alt. forum is completely inadequate. (4) Forum selection clause

General Rule FNC is tough on Ps. Courts won't grant FNC unless (1) There is an alt. forum (2) D waives statute of limitations defense (3) D consents to jurisdiction in alt. forum.

Venue of Corporate Ds 1391(c) (1) Anywhere corporation is subject to PJ. Analyze as if districts were seperate sovereign states.

Venue for Aliens 1391(d) (1) Any alien, including alien corporations, can be sued in any district.

Transferring court can only send a case to a court where the action could have been commenced or initiated. Therefore, the receiving court must have all three, even if the transferring court doesn't. (1) SMJ (2) PJ (3) Venue

Local v. Transitory Actions Local: Claims tied to a specific piece of land; must be brought in the court where land is located. Transitory: All other actions; may be brought wherever PJ over D can be obtained.

Public Interest Factors: (1) Local interest in having disputes resolved locally. (2) Court congestion (3) Familiarity with law (4) Interests of justice

Federal Venue: Which federal district court shall try the action? Local v. Transitory Actions: Local actions are typically connected to the ownership of real property, and must be brought in the jurisdiction where the property is located; transitory actions are anything that arent local. 1391(a): Venue in Diversity Cases 1391(b): Venue in Fed. Question Cases

(a) A civil action wherein jurisdiction is (b) A civil action wherein jurisdiction is not founded only on diversity of citizenship may founded solely on diversity of citizenship may be brought only in be brought only in (1) A judicial district where any D (1) A judicial district where any D resides, if all Ds reside in same state. resides, if all Ds reside in same state. (2) A judicial district in which a (2) A judicial district in which a substantial part of the events giving substantial part of the events giving rise to the claim occurred, or a rise to the claim occurred, or a substantial part of the property that substantial part of the property that is is the subject of the action is situated, the subject of the action is situated, or or (3) A judicial district in which any D (3) A judicial district in which any D may be found, if there is no district in is subject to PJ at the time the action which the action may otherwise be is commenced, if there is no district brought. in which the action may otherwise be brought. NOTE: Different language, but probably means the same thing. 1391(c): A D that is a corporation shall be deemed to reside in any judicial district in which it is subject to PJ at the time the action is commenced. In a state which has more than one judicial district and in which a D that is a corporation is subject to PJ, such corporation shall be deemed to reside in any district in that state within which its contacts would be sufficient to subject it to PJ if that district were a separate State, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts. 1391(d): An alien may be sued in any district.

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Transfer 28 U.S.C. 1404: Statutory basis for transfer of venue Removal 28 U.S.C. 1441: Statutory basis for removal

Preferred Places of Venue: Place of Ds residence if all Ds reside in state, OR where a substantial portion of the events in the suit arose. Fallback: If cant meet any of the two preferred venues, where any of Ds are subject to PJ. Defined: All venue systems have a method to transfer, whereby a party can move the case to a more convenient forum where the case could have originally been brought. (i.e. to escape bias in a high profile case). 1404: (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. Defined: A civil action brought in state court may be removed by D into a federal court that would have had original jurisdiction. However, in diversity cases a case may not be removed to federal court if any of Ds is a citizen of the state in which the complaint is brought. Removal is not mandatory. 1441: (a) Any civil action brought in a State court of which the district courts of the U.S. have original jurisdiction may be removed by D to the district court for the district embracing the place where such action is pending. (b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties, or laws of the U.S. shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as Ds is a citizen of the state in which such action is brought. Defined: A legal doctrine whereby courts may refuse to take jurisdiction over matters where there is a more appropriate forum available to the parties. Applies between courts in different countries (most common), and between courts in different jurisdictions in the same country. When FNC is Proper: Only comes into play when venue is proper in the first place; FNC can never apply if there is absence of jurisdiction or venue. Alternative Forum Required: Dismissal on the grounds of FNC requires that there be an alternative forum in which the suit can be prosecuted. It must appear that jurisdiction over all parties can be secured, and that adequate relief can be obtained in the more convenient forum. 1. It is common for a court to condition an FNC dismissal on an agreement by D to waive any applicable statute of limitations, an in personam jurisdiction objection, or any other defenses in the alternative forum. 2. Cannot defeat FNC simply because the law would be less favorable to P. 3. There are no clear answers to the question whether the remedy provided in the alt. forum is adequate, but there is a discernible difference to courts between a claim that is utterly non-viable in the alt. forum, and a claim that is merely unsatisfactory in the remedy it might provide. 4. A corporation sued in the jurisdiction of its place of incorporation or primary place of business is generally not entitled to seek an FNC dismissal. Balancing Test: In deciding whether to grant an FNC dismissal, courts must balance convenience, public interests, and private interests at stake against Ps choice of forum. If Ps choice of forum was reasonable, D must show a compelling reason to change jurisdiction (i.e. not that it would simply shift inconvenience from one party to another). Factors: (1) the place where the operative facts occurred, (2) convenience of the parties, (3) convenience of the witnesses, (4) relative ease of access to the source of proof, (5) availability of process to compel unwilling witnesses, (6) Ps choice, (7) forums familiarity with governing law (8) forum selection clause in a contract (may be a significant factor), and (9) interests of justice. CASE AUTHORITY FOR FORUM NON CONVENIENS

Forum Non Conveniens (FNC)

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Piper Aircraft, Co. v. Reyno

Facts: Ds are PA & OH manufacturer of aircraft & propeller of a plane that crashed in Scotland, killing 5 UK citizens on board. Complaint was originally filed in CA because of sympathetic US courts that allow strict liability and generous wrongful death actions. Ds removed to federal court in CA, then transferred to PA district court before moving to dismiss on FNC grounds in favor of having the case tried in UK courts. App. Ct. overturned FNC because Scottish law is less favorable to Ps. Court: Scotland was available forum because Ds had agreed to submit to jurisdiction and waive statute of limitations defense. SCotUS maintained convenience and flexibility were at the heart of FNC, and if inconvenience points towards dismissal courts should generally allow it. Applying factors, the majority of the evidence is in Scotland, US has no power to compel non-citizen witnesses, UK has better understanding of Scottish law. No convenience argument for keeping it in US.

STEPS OF A FEDERAL LAWSUIT

Stages

Pleading

Discovery

Applicable Law: Erie Doctrine Joinder

Judgment

Preclusion

PLEADING
Notice Pleading FRCP Rule 8: Pleading Defined: Pleading is the law governing the statement of claims and defenses; often referred to as the door to pre-trial because pleading functions to eliminate complaints that have no legal significance, without the need for a lengthy & costly trial. Filing of the complaint is deemed to commence the action, and is the date that counts for statute of limitation purposes. Background: Writ system Code Pleading Notice pleading Iqbal (?). In 1938 SCotUS promulgated a uniform set of procedural rules for all fed. cases; a key feature of that reform was the adoption of new pleading requirements. In doing so court decided it wasnt interested in deciding factual issues during pleading stage (saved for discovery) and did away with pleading technicalities by lowering the requirement to merely stating a cause for relief. Purpose of new pleading requirements was to give D (and the court) fair notice of pending actions so that he might be able to prepare to meet it. Effectiveness: Lowering pleading standard made it less likely that pleadings themselves would be an efficient screening device for easy disposal of sham claims or defenses; the hope is that broad rules of pre-trial discovery & summary judgment fill any gap left by less stringent pleading standards. Notice Pleading: Rule 8(a) Pleading must have: (1) a short and plain statement of the grounds for the courts jurisdiction; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought. Jurisdiction: Since fed. courts have limited SMJ, pleading requirement helps to ensure that federal courts do not adjudicate cases outside of the scope of their federal powers. Short & Plain Statement: Pleader must set forth sufficient information to allege a right to relief and must not plead any facts that would fully constitute a defense to the complaint. Alternative/Inconsistent Allegations: FRCP Rule 8(e)(2) permits claims and defenses that are

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stated hypoethetically or in the alternative, or are otherwise inconsistent with one another, so long as they are filed in good faith. Changing the Pleading Standard: Old Rules (Swierkiewics) Post-Iqbal/Twombly Rules
1. Party must set forth factual allegations to cover every element of claim, referring to the circumstances and events upon which the claim is based. Level of factual detail required is not high gaps in the facts are usually remedied through discovery. Goal of pleading is to provide opposing party & court with notice & a basic understanding of the claim being made. In cases of ambiguity in the facts, courts were expected to view claims in a light most favorable to P. This meant taking every fact as facially true in the complaint, and accepting as true any facts that would be consistent with what was stated in the complaint. A party was permitted to recovery whenever a valid claim was presented, even though an attorney failed to perceive the proper basis of the claim at the pleading stage. The Appendix of Forms following the Federal Rules gives examples of sufficient complaints & answers (i.e. Form 11). A pleading would satisfy Rule 8(a)(2) if it (1) provided fair notice (2) unless it was clear that no relief could be granted under any set of facts that could be proved consistent with the allegations (Conley v. Gibson). Allows meritorious claims in which plausible facts are unavailable without discovery. Reduces subjectivity at pleading stage. Reduces litigation costs at pleading stage. If courts set too high a threshold for pleading, plaintiffs who would be able to prove their case through discovery are not granted the opportunity. 1. Court interpreted Rule 8(a)(2)s pleading standard to require that a complaint allege enough facts to raise a right to relief above the speculative level. P must now state a claim that is plausible on its face. Three prong approach to assessing sufficiency: (1) Only factual allegations must be accepted as true; legal conclusions must be disregarded. (2) Assume the veracity of the remaining wellpleaded factual allegations (if any). (3) Decide afterwards if remaining facts give rise to a plausible inference that a violation of law has occurred, and that P is entitled to relief. What is considered conclusory? There are broad & narrow readings. One reading is pleader cannot just restate the language of the statute, but Iqbal seems to go further than that. In determining plausibility, court may consider other explanations for the conduct. Requires the court to draw on its judicial experience & common sense in determining whether something is plausible in context.

2. 3. 4.

2.

3.

5.

4. 5.

6. 7.

NOTE: Twombly standard does not just apply to securities & anti-trust, but should be applied to all pleadings; however, it also does not directly overrule Swierkiewicz. 1. 2. Identifies more meritless claims at the outset, assuming Ps inability to plead facts is representative of the claims lack of merit. Reduces judicial costs by deterring meritless claims from bring brought and dismissing cases early on, assuming post-complaint cost management strategies like summary judgment are ineffective. Provides a clearer template for further conduct of litigation. Seems to represent a slight regression to code pleading standards. Iqbal rule revives problem of determining what constitutes a conclusory statement.

1. 2. 3. 4.

3. 4.

Adoption of Iqbal Standard: State Courts: States who had adopted Rule 8 into their constitutions were asked to shift to Iqbal pleading req. Most refused and still propogate Swierkiewicz standard (P need not plead a prima facie case, merely allege sufficient facts to establish a right to relief). Lower Federal Courts: Because the rule is new and unfamiliar, it is unclear to what extent this standard will be implemented. Courts so used to Rule 8 req. that many will probably read standard for assessing facts & conclusory statements more liberally than Iqbal demands. EXAM: Argue both sides! CASE AUTHORITY FOR PLEADING Access Now, Inc. v. Facts: P is an NGO advocacy group, on behalf of a blind man who claims Southwest Ds website violates Title III of ADA because it is inaccessible to visually-

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Burdens of Pleading

impaired people, denying them access to a place of public accomodation. Court: Congress intent was clear that Title III solely governs access to physical concrete places of public accomodation, of which a website is not. Ps fail to demonstrate that southwest.com acts as a nexus to a physical location (as they did in Rendon re: Millionaire game show studio). Had P amended complaint to nexus argument they may have made it past the motion to dismiss. Swierkiewicz v. Facts: P is a 51-yr-old native of Hungary who worked for D for 26 years, Sorema after which Ds CEO demoted P and transferred his work to a less experienced and less qualified French national like CEO. P then fired. D. Ct. dismissed complaint because P did not adequately alleged a prima facie case of discrimination. Court: An employment discrimination pleading need not prove a prima facie case of discrimination; ordinary rules for assessing sufficiency of a complainy apply (i.e. Rule 8(a)(2)). It would not be enough for P to file a complaint saying D discriminated against him; he must give enough of a discription of events & people to provide adequate notice to D of claims and the grounds on which they rest. Issue is not whether P will ultimately prevail, but whether he is entitled to offer evidence to support his claims via discovery. It seems silly to require P to plead more facts than he may ultimately need to succeed in court, simply to survive a motion to dismiss. Ashcroft v. Iqbal Facts: Iqbal, a Pakistani & a Mislim, was detained after 9/11 as a high interest individual with connections to terrorism. He was placed in maxsecurity facility where he was subjected to physical violence and denied access to religious materials. He brought suit for discrimination against prison guards, as well as Ashcroft, the attorney general and principal architect of detention policy, and Mueller, who Iqbal claimed was instrumental in the policys adoption and implementaiton. While trial was pending, Twombly was decided, which raised standard of evaluating a complaint to survive a motion to dismiss. Rule: Via Twombly: a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face. A claim has facial plausibility when P pleads factual allegations that allow the court to draw the reasonable inference that D is liable for the misconduct alleged. Court: SCotUS dismissed claim on grounds that he did not sufficiently state a plausible claim of relief, after rejecting the majority of his statements against Ashcroft & Mueller as mere conclusions. The allegations are consistent w/ policy being discriminatoy, but given more likely explanations (that post-terrorist attack, gov. was interested in detaining high-interest people who just happened to be Muslim and Middle-eastern) they do not plausibly establish this purpose. Special Pleading Requirements: Rule 9 provides for a heightened pleading standard in special cases involving claims of securities fraud or class-action suits; the circumstances constituting the fraud or mistake must be stated with particularity. POLICY: Judicial efficiency; rule was created to force P to be specific, so that fraud claims are not just tacked onto any contracts case. NOTE: These instances serve as proof that courts may raise burden of pleading whenever theyd like. Burden of Pleading: Each partys responsibility to state with sufficient evidence enough particulars of a claim/defense to constitute a prima facie case and avoid sanctions under Rule 11. 1. General rule is that a party bears the responsibility for pleading those matters upon which the party has the burden of production at trial. 2. P pleads allegations (the factors at the heart of the claim that are considered vital if recovery is allowed) BUT P doesnt have to anticipate Ds defenses (Gomez), especially if it turns on factors like subjective belief that P cannot reasonably be expected to

Airlines

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know. D pleads defenses (special matters that would limit or preclude Ps recovery). In some cases, the wording of a statute designates who must bear what burden. Burden of Production: Each partys responsibility to produce evidence at trial that tends to demonstrate their theory of relief. Burden of Persuasion: The threshold for each partys responsibility to persuade the trier of fact (judge/jury) that his version of the facts is more likely than not true. What standard that factfinder uses to view evidence is usually given by a judge; in civil cases the standard is generally a preponderance of the evidence. Considerations in Allocating the Burden of Pleading (Cleary): For the majority of cases, three general considerations should govern allocation of responsibility for pleading. 1. Policy: Based on other features of the case and the important of the rights at stake for either party, a judge might find that one side deserves some help, and may load the dice. 2. Fairness: Burden should be placed on a person with access to relevant evidence. This encourages people to voluntarily present evidence, which is less expensive than discovery. (BUT there are multiple exceptions to this, i.e. tort cases). 3. Probability: Burden allocation is decided based on the probabilities of the situation. This calls for putting the burden on the party who is less likely to be right, or who will be benefitted by a departure from the norm. Different standards may lead to different results on a case-by-case basis. By putting the burden on the party less likely to be right, if he doesnt end up meeting his burden the outcome is likely to be accurate anyway. This is calculated to produce the fewest unjust results. CASE AUTHORITY FOR BURDEN OF PLEADING
3.

Motions Rule 7: Motions in General Rule 12: Motions for judgment on the pleadings

Facts: P worked in PR police under Ds supervision. Gomez testified that two fellow officers had falsified evidence, and as a result criminal charges were filed against him and he was fired. P brought a claim against D, who moved to dismiss on the grounds of governmental immunity, and that she acted in good faith. Issue: Whether P was required to plead as part of his claim that D acted in bad faith, or whether D had burden of asserting good faith as a defense. Court: Held that D had burden of pleading affirmative defense, because existence of facts that might prove that D had belief her actions were done in good faith often are only known by D and it would be unreasonable to ask P to infer such facts (fairness). Defined: Any request for a court order must be made by motion. Motions are like minicomplaints made during trial, done on a specified schedule. Rule 7: The motion must (1) be in writing unless made during hearing or trial, (2) state with particularity the grounds for seeking the order, and (3) state the relief sought. Pre-Trial Motions for Judgment on the Pleadings: Provide a method for clarifying uncertain or ambiguous pleadings, dismissing a complaint that is facially insufficient, or asserting various pretrial defenses. Motion-Based Defenses: When served a complaint, D must either file an answer OR file a motion-based defense pursuant to Rule 12(b). These defenses may also be asserted in an answer or in an amendment to an answer. Rule 12(b): Every defense to a claim for relief in any pleading must be asserted in answer. But a party may assert the following defenses by motion: (1) Lack of SMJ (2) Lack of PJ (3) Improper venue (4) Insufficient process (5) Insufficient service of process (6) Failure to state a claim upon which relief can be granted (7) Failure to join a party under Rule 19 Motion for Judgment on the Pleadings:

Gomez v. Toledo

20

Amendments Rule 15: Amendments to the pleadings

Rule 12(c): After the pleadings are closedbut early enough not to dely triala party may move for judgment on the pleadings. Motion for a More Definite Statement: Rule 12(e): A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. Motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. Joining Motions: D may join multiple Rule 12 motions, but once a party makes one Rule 12 motion, certain defenses or objections (12(b)(2)-(5)/(e)) not raised in that motion are considered waived. Rule 12(g): (1) Right to Join: A motion under this rule may be joined with any other motion allowed by this rule (2) Limitation on Further Motions: Except as provided in Rule 12(h)(2)/(3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion. Waiving & Preserving Defenses: POLICY: It would be foolish for a court to try a case on the merits only to have it dismissed for procedural issues like lack of venue. This prevents Ds from holding out on filing motions until the case turns against them on the merits, thus wasting the courts time and money. The waive-able defenses should be obvious to D from outset, and are therefore easy to assert in the beginning of litigation. Rule 12(h): (1) When Some Are Waived: A party waives any defense listed in Rule 12(b)(2)-(5) by: (A) Omitting it from a motion in the circumstances described in 12(g)(2); or (B) Failing to either: (i) Make it by motion under this rule; or (ii) Include it in an answer or an amendment allowed as a matter of course. (2) When to Raise Others: Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised: (A) In any pleading allowed under Rule 7(a) (B) By a motion under Rule 12(c); or (C) At trial (3) Lack of SMJ: If the court determines at any time that it lacks SMJ, the court must dismiss the action. Defined: Changes to pleadings, answers, counterclaims, etc. Amendments may add new facts or legal theories, and also may change the party who P is suing. 1. Determinative factor in allowing amendments is whether it would be prejudicial to the opposing party. 2. Early in litigation there is a presumption in favor of allowing amendments. The later in the trial, the more likely the court will find the proposed amendment prejudicial. 3. Amendments may be denied that assert legally insufficient claims, or where the judge has reason to believe the party seeking to amend pleading has acted in bad faith (i.e. to throw Ds defense). 4. Amended pleadings displace prior pleadings. Liberal Pre-Trial Amendment Policy: Judicial system believes cases should be tried on the merits, not on technicalities of the pleadings. Without liberal amendment rules, a party would only be able to recover what he pleaded in the original complaint. FRCP reject such technical impediments to reaching the true facts/merits of the case. If, over the development of a trial, a party finds a new legal theory or becomes aware of more facts that might support recovery, they should be able to restate their position in light of this fuller understanding. Pre-Trial Amendments: Matter of Course: A party is allowed to amend a pleading once as a matter of course, without permission from the court, within 21 days of serving it.

21

When Justice So Requires: Once the period specified in Rule 15(a)(1) has passed, amendments can be made by written consent of opposing party or by leave of court, which should be freely given when justice so requires. Rule 15(a): Amendments Before Trial (1) Amending as a Matter of Course: A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) If the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading, or 21 days after service of a motion under Rule 12(b), (e), of (f), whichever is earlier. (2) Other Amendments: In all other cases, a party may amend its pleading only with the opposing partys written consent or the courts leave. The court should freely give leave when justice so requires. Amendments During & After Trial: Pleadings may be amended during and after trial when evidence presented is not within the issues in the pleading if (1) court finds that amendment would not prejudice objecting party or (2) issue is tried by parties express or implied consent. Consent is generally found when evidence is introduced without objection, or when the party opposing the amendment actually produced evidence bearing on the issue. Rule 15(b): (1) Based On An Objection At Trial: If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. Court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that partys action or defense on the merits. Court may grant a continuance to enable objecting party to meet the evidence. (2) For Issues Tried by Consent: When an issue not raised by the pleadings is tried by the parties express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move at any time, even after judgment, to amend the pleadings to conform them to the evidencebut failure to amend does not affect the result of the trial. Relation Back: New Cause of Action: An amendment to a pleading that states a new cause of action relates back to the original filing day (for the purpose of remaining within an applicable statute of limitations) when the new claim/defense asserted in the amended pleading arose out of the same general set of facts. POLICY: Initial pleading provided party notice, therefore other claims that would have been timely are also considered valid because party is already preparing evidence and a defense. New Parties: If the amendment is seeking to change/add a party, it will only relate back if (1) the claim against the new party arises from the same facts as the original claim, (2) if the new party had notice within the period for delivery of the original complaint (date of filing + 120 days) that it had been filed, AND (3) should have known that but for Ps mistake the action would have been originally filed against him. 1. Identity of Interest: New party may have received informal notice because they are connected in some way to the party named on the complaint, for instance through the same lawyer or through a business relationship. 2. Lack of knowledge about Ds identity a mistake, and does not entitle P to relation back. Rule 15(c): (1) An amendment to a pleading relates back to the date of the original pleading when: (A) State of limitations allows relation back (B) Amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out in the original pleading, or (C) The amendment changes the party or partys name against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m)

22

for serving the summons & complaint, the party to be brought in by amendment: (i) Received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) Knew or should have known that the action would have been brought him but for a mistake concerning the proper partys identity. CASE AUTHORITY FOR AMENDMENTS TO PLEADINGS Facts: A man is arrested and abused by arresting officers. Man files suit against John Does because he does not know the names of the arresting officers. After he finds out he moves to amend the pleading to include their names. Court: Does not allow amendment, holding that Ds lack of knowledge is not a mistake and is therefore not entitled to relation back under Rule 15. Sanctions: Regulate the practice of pleading by implicating ethics rules as standard for courts power to sanction. Rule 11: Background: Started as a bad faith rule in 1938; rarely used. Amended several times, and there was ligitimate concern that attornies would be unable to engage in zealous advocacy or take innovative positions on behalf of their client out of fear of sanctions. Most recently (1993), legislature approved safe harbor provision. 1. Requires signatures on every document filed with court. 2. Only an attorney or an unrepresented party may violate this rule, but firms & cocounsel may be held liable for their part of the sanctioned partys actions. 3. Sanctions are not required, but are brought at the courts discretion. 4. Requires that a person who has signed a pleading to cease advocating a position that the person has learned is untenable on the facts of the law. 5. To avoid sanctions, pleadings need evidentiary support; something that will meet partys burden of production in front of a jury. Rule 11: (a) Signature: Every paper presented to the court must be signed. (b) Representations to the Court: By presenting to the court a pleading, motion, or other paper, party certifies that to the best of the persons knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) It is not being presented for any improper purpose; (2) Claims, defenses, & other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) Factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) Denials of factual contentions are also warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. (c) Sanctions (1) In General: If the court determines that Rule 11(b) has been violated, court may impose an appropriate sanction. (2) Motion for Sanctions: A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b)but it must not be filed or be presented to the court if the challeneged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service. (3) On the Courts Initiative: On its own, the court may order a party to show cause why its conduct has not violated Rule 11(b) (4) Nature of a Sanction: A Sanction imposed under this rule must be limited to what Worthington v. Wilson

Devices to Assure Candor in Pleadings Rule 11: Sanctions 28 U.S.C. 1927: Attorney Sanctions

23

suffices to deter repetition of the conduct. (d) Inapplicability to Discovery Improper Purpose: Some courts hold that when a pleading is neither legally nor factually frivolous, sanctions are unavailable regardless of pleaders purpose; others view improper purpose on a continuum weighing illicit purpose and legit purpose to vindicate a partys rights in court. Frivolity: If attorney is advocating for an extention of existing law, he must make a non-frivolous argument. What constitutes frivolity is subjective and ultimately turns on judges determination. Because of this, many sanctions attack lawyers research or failure to identify legal arguments as novel rather than argue the standards for determining legal frivolity. Safe Harbor Provision: 1993 amendment added a safeguard against sanctions, requiring party seeking sanctions to allow offending party 21 days to withdraw or amend pleading before sanction is filed with the court. Damages: Award for sanctions is limited to what suffices to deter repetition of bad conduct (not compensate). Available sanctions include $ paid to court, and order for attorneys fees of opponent. This lowers incentive to bring unnecessary motions for sanctions since party has little to economically gain. POLICY: (1) Ensure truthfulness & deter frivolous litigation, (2) remind attorneys of obligation to legal system & interests of justice, (3) Saves judge from having to hear/litigate excess motions. Other Methods for Sanctioning: By Statute: Triggered by bad faith (prolonging complaint). Requires specific notice to counsel and opportunity for counsel to be heard/defend himself before sanctions are imposed. 28 U.S.C. 1927: Any attorney who unreasonably and vexatiously multiplies the proceeding in any case may be required by the court to satisfy the excess costs, expenses, and attorneys fees reasonably incurred because of such conduct. Inherent Power of the Courts: Federal D. Cts. have judicial power to manage their own proceedings and punish abuses of the judicial process through sanctions. No motion needs to have been brought, and there is no safe harbor provision for sanctions outside Rule 11. There usually must be some form of intent for improper purpose or bad faith on the part of the offending party, like blatantly lying to the court or promulgating a complaint known to lack a legal base. CASE AUTHORITY FOR SANCTIONS Facts: Psychologist sues former employer for copyright infringement by renting his filmed therapy sessions. EPPI moved to dismiss and filed sanctions against Ps attorney, Lipman, on grounds that he failed to conduct an inquiry into the facts. Lipman had not properly read the copyright law, and had filed a claim after the applicable statute of limitations. Case was also factually insufficient because Lipman had not properly investigated whether or not Ps films were actually rented by EPPI. Court: D. Ct. found sanctions under both 1927 & Rule 11. App. Ct. held the lower court had improperly assigned sanctions on two counts, one for intentional misconduct, and one on something less than intentional misconduct. Because of this confusion they remanded. Lipmans sanction was based on a faulty reading of copyright law. If he had argued towards expanding the law or creating new law, he may have avoided sanctions. Defined: Ds answer to the pleading serves to determine which allegations in the complaint D intends to contest at trial, permits D to raise additional matters as affirmative defenses or counterclaims, and allows D to raise certain technical defenses not on the merits (Rule 12). D may respond through a denial, an admission, or silence, stated in short & plain terms like the intial pleading. NOTE: Governed by the same rules as pleadings in FRCP 8. NOTE: Denials are tied to Rule 11. By signing a pleading, a party is making certain warranties that Zuk v. EPPI

Responsive Pleadings (Answers) Rule 8(b): Defenses, admissions, &

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denials

denials are justified by the evidence unless specifically identified. Admissions: If facts in complaint are admitted, they are considered not in dispute and no further evidence is required or allowed to be submitted on their behalf. Why Would D Deliberately Admit Allegations?: Party has duty to respond in good faith. Also, for tactical reasons a party may admit allegations because they dont want bad conduct exposed. Silence: Failure to deny has same effect as an admission. Denials: Two types: 1. General: In one sentence, D states that he denies each and every allegation in complaint. Very rare. 2. Specific: -by- analysis of complaint, denying only those allegations D intends to contest. 3. Lacking Information: D may deny allegations on the basis that he has no information or belief sufficient to answer. Defenses: Affirmative defenses introduce new matter having nothing to do with whether Ps allegations are true. Must be raised in pleading in order to be proved at trial (i.e. if D does not raise defense in an answer he waives his right to do so). Counterclaims: D may choose not only to answer Ps complaint, but to advance a claim of his own against P.

DISCOVERY
Scope of Discovery Rule 26: Scope of Discovery Rule 37: Enforcement regime for discovery Defined: The legal process for compelling the disclosure of information relevant to disputed factual issues in litigation. Operates without intervention of the court; only where one person refuses to comply with the others discovery request will the court intervene. Timeline: Generally, between the close of pleadings & final pre-trial conference. 1. Informal investigation 2. Meeting between parties to draw up discovery plan 3. Initial disclosure 4. Then, free for all with depos, rogs, motions, etc. Liberalization: Scope of discovery under Rule 26 is incredibly broad compared to other legal systems. Purposes of Discovery: 1. Fact finding (allows parties to present case most favorable to them) 2. Settlement promotion 3. Testing claims & defenses 4. Surprise reduction 5. More accurate outcomes 6. Expediencymay reveal that a case can be diposed of without trial through summary judgment for lack of evidentiary basis. Required Disclosure: (Rule 26(a)) Scope of Discovery: (Rule 26(b)) Rule 26(b)(1): Scope & Limits (1) Scope in General. Unless otherwise limited by court orderparties may obtain discovery regarding any nonprivileged matter that is relevant to any partys claim or defense including the existence, description, nature, custody, condition, and location of any documents or tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence (subject to limitations imposed by (b)(2)(C). In General: Information can, at least upon a proper showing of need, be obtained regarding any matter, not privileged, that is relevant to the subject matter involved in the action, including information about any documents or tangible evidence and the identity & location of people who know of any discoverable matter. Lead to Evidence: It is proper to discover facts not necessarily admissible themselves, so long as

25

they might lead to admissible evidence (i.e. hearsay statements ok) or expose the identity & whereabouts of witnesses who are thought to have discoverable information. Discovery requests simply must be reasonably calculated. Three Categories of Relevant-but-Inadmissible Info: Legal Theories: material relating to legal theories on which responding party expects to rely at trial (Rule 33(a)(2)) Witnesses: Identity & whereabouts of any witness who is thought to have discoverable info Leads: Material which can serve as a lead to admissible evidence. Privileged Matters: Information that falls under the formal privileges recognized under rules of evidence (i.e. attorney-client, doctor-patient, priest-penitent, husband-wife, etc.) are exempt from disclosure. Person asserting a claim of privilege has the burden of establishing its existence. BUT once privileged information has been voluntarily disclosed, some jdx consider privilege waived to all communications of the same information. May be asserted by any person who could assert privilege at trial. Limitations on Discovery: (Rule 26(b)(2) NOTE: Presumption of discoverability, with a few limits. Rule 26(b)(2): A. When Permitted. By order, the court may alter the limits in these rules on the # of depositions and interogatories or on the length of depositions. B. Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause. C. When Required. On motion or on its own, court must limit frequency or extent of discovery otherwise allowed by these rules if it determines that: i. The discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive. ii. The party seeking discovery has had ample opportunity to obtain the information by discovery in the action, or iii. The burden or expense of the proposed discovery likely outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties resources, the importance of the issues at stake in the action, and the importance of discovery in resolving the issues. Electronically Stored Information: (Rule 26(b)(2)(B)) Electronic data is subject to the same discovery rules. Whether the production of documents is unduly burdensome or expensive turns primarily on whether it is kept in an accessible (readily usable and reasonably indexed) or inaccessible format. Accessibilility largely turns on the media on which e-documents are stored. o Accessible: active, online data, near-line data, and offline storage. o Inaccessible: backup tapes and erased, fragmented, or damaged data. $$ Burden of Expense: Fundamental issue with production is cost. Presumption is that responding party must bear the expense of complying with discovery requests. BUT if burden or expense is too great, courts may engage in some sort of cost-shifting based on Zubulake seven factor test, forcing the requesting party rather than responding party to bear the cost of discovery. Zubulake Multi-Factor Test: (1) extent to which the request is specifically tailored to discover relevant information; (2) the availability of such information from other sources;

26

(3) the total cost of production, compared to the amount in controversy; (4) total cost of production, compared to resources available to each party; (5) relative ability of each party to control costs & its incentive to do so; (6) the importance of the issues at stake in the litigation; and (7) the relative benefits to the parties of obtaining the info. o In other words, the burden or expense of discovery is undue when it outweighs its likely benefit. o (1): increases presumptive benefit of discovery, relative to its cost; aligns with scope of discovery. o (2) supports judicial efficiency: if info is available elsewhere, go there. o (3)-(5): considers how much court reasonably expects each party to invest in proving case, and which party is in the best position to minimize these costs (i.e. if burden is on D, he is unlikely to drag up unneccessary fees to prolong discovery). o (6): relevant information should be considered in light of the important issues. o (7): rarely determinative; discovery is unlikely to ever benefit responding party. POLICY for Rejecting Generic Cost-Shifting: In many claims between a large, wealthy D & a P with limited resources, shifting cost can effectively shut down discovery, which may be needed in order to prove merits of case. Aligns with Oppenheimer Fund decision (qtd. in Zubulake that the presumption is that the responding party must bear the expense of comlying with discovery requests. Work-Product Exemption: (Rule 26(b)(3)) Rule 26(b)(3): Trial Preparation: Materials D. Documents and Tangible Things. Ordinarily, a party may not discover documents & tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. But, those materials may be discovered if: i. They are otherwise discoverable under Rule 26(b)(1) (scope) and ii. The party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a partys attorney or other representative concerning the litigation. Ordinarily, in absence of a showing of need, an opposing party cannot discover information obtained by an attorney while preparing for litigation. Applies only to materials prepared in anticipation of litigation, not in the ordinary course of business; BUT the distinction is not always clear (consider an insurance company that investigates every claim, even the ones that do not go to trial). It is clear that protection does not exist when the information is formulated without reference to a potential lawsuit, but a question arises if suit is contemplated but no claim has yet been filed. Post-Trial Work Product: Privilege does not automatically terminate at the conclusion of the litigation for which work product was prepared, but may remain viable even in subsequent unrelated litigation. o Rule 26(b)(3) only says in anticipation of litigation without specifying any particular litigation. o Policies behind creation of work-product privilege have equal validity in support of maintaining privilege after the litigation in which work product was created as come to an end: (1) want to encourage attorney to make a thorough preparation for trial, and (2) prevent one attorney from taking undue advantage of anothers efforts, which would defeat our adversary system. Does not necessarily need to be prepared by an attorney. Does not apply to facts learned in anticipation of litigation, which must be disclosed (i.e. witness statements pursuant to Rule 26(b)(3)(C)). Rule represents tension between policy of disclosure & adversary system (each party

Formatted: Bullets and Numbering

27

should do own work). Requesting Work Product: o Court may order production if (1) material would be otherwise discoverable (reasonably calculated to lead to information & not privileged), and (2) requesting party demonstrates substantial need for work product, and that similar information cannot be obtained through other means without substantial hardship. o Written statements & documents may be discoverable where the witnesses are no longer available or can be reached only with difficulty. o NOTE: In absence of a showing that the witness is no longer available, there is no need to overcome the protection accorded that information just because it would be less convenient for the opposing party to take its own deposition of the witness. Mental Impressions (Opinion Work Product): The mental impressions, conclusions, opinions, or legal theories (i.e. like contained in a memo) enjoy the highest level of protection under the work product doctrine; absolute immunity from discovery. o Whenever discoverable information is tangled with the mental processes of attorney, court is divided whether to redact mental processes from the key facts or just deny discovery altogether. o Litigation strategy is immune from discovery; only equal access to facts is assured by the discovery system. Unwritten Information: Work product doctrine extends to information gathered by the attorney that is not reflected in writing. While FRCP protects only documents & tangible things, court would likely rely on common law of Hickman & the policies espoused. o Hickman suggests serious consequences to requiring attorneys to testify on the stand about oral statements of an eyewitness, which could subsequently be used to impeach witnesses whom the attorney calls to the stand or the attorney himself. Difference from Privilege: Work product only protects against materials prepared in anticipation of litigation, whereas attorney-client privilege protects communications made in connection with legal advice of any kind, whether or not related to litigation. On the other hand, work product doctrine covers information from other sources than the client, notably witness statements. Finally, work-product doctrine may be overcome whereas attorney-client privilege has no exceptions. POLICY: It is essential that counsel be able to work with a certain degree of privacy, and consequently the work product of the attorney reflects the mental impressions of the attorney such that if discovery were granted much less would be written, ergo much more would be forgotten. This would lead to inefficiency, unfairness & otherwise sharp practices in the giving of legal advice, damaging the profession and frustrating the interests of justice and accuracy. Privilege & Objections to Discovery: (Rule 26(b)(5)) Rule 26(b)(5): (A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trialpreparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. (B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the

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information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved. A person claiming privilege must provide basic information to opposing party about nature of privileged information to establish privilege is grounded under the circumstances. If, after this, requesting party still considers information important & is convinced it is not privileged, he will have to file a motion to compel response under Rule 37(a)(1). Claim of privilege will usually prevail even if the information withheld is crucial to opposing partys claim/defense. Showing of need generally will not override privilege. Protective Orders: (Rule 26(c)) Rule 26(c): A party or any person from whom discovery is sought may move for a protective order in the court where the action is pendingThe motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (C) forbidding the disclosure or discovery; (D) specifying terms, including time and place, for the disclosure or discovery; (E) prescribing a discovery method other than the one selected by the party seeking discovery; (F) forbidding inquiry into certain matters, or limiting the scope of disclosure to certain matters; (G) designating the persons who may be present while the discovery is conducted; (H) requiring that a deposition be sealed and opened only on court order; (I) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and (J) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs. When a party believes that proposed discovery extends too broadly, threatens information that is exempt from discovery or is confidential, or is too expensive or harassing, the party may obtain a protective order to bar or limit discovery, or specify conditions to protect against improper circulation of confidential information. Protects a party from annoyance, embarrassment, oppression, or undue burden or expense. Motion for protective order is the opposite of a motion to compel (Rule 37(a)(1)). Timing & Sequence of Discovery: (Rule 26(d)) Supplementation of Disclosures: (Rule 26(e)) A party who has made a discovery disclosure must supplement or correct it if the party learns that in some material respect the disclosure is imcomplete or incorrect. Discovery Conference: (Rule 26(f)) Good faith effort to map out discovery plan between parties. Sanctions: (Rule 26(g)) Rule 26(g): 1. Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney's own name or by the party personally, if unrepresented and must state the signer's address, e-mail address, and telephone number. By signing, an attorney or party certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry: (A) with respect to a disclosure, it is complete and correct as of the time it is made; and (B) with respect to a discovery request, response, or objection, it is: (i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for

29

establishing new law; (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action. 2. Failure to Sign. Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attorney's or party's attention. 3. Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation. All discovery requests & disclosures must be signed; violation of certification requirement results in sanction on signer, party, or both. Demands party has done Rule 11 investigation. NOTE: Rule 11 is inapplicable to discovery.

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Determining Discoverable Material:

Is the material subject to automatic disclosure per 26(a)(1)?

YES

Discoverable

NO
Is the material relevant to the subject matter involved in the action?

NO

YES
Will the material be admissible at trial, or does the information sought appear reasonably calculated to lead to the discovery of admissible evidence?

NO Not Discoverable

YES
Is the information sought privileged?

YES

NO
Is the material work product?

NO YES
Has the party seeking discovery shown a substantial need of material & an inability to acquire it without undue hardship?

NO

YES Discoverable

Forms of Discovery Rule 27-36: Individual rules for specific discovery devices

Forms: 1. Independent Investigation: Not technically a form of discovery; takes place before the suit is filed, as the attorney determines the strength of the case, explores the possibility of settlement, & decides whether a complaint should be filed. Must be done in order to avoid Rule 11 sanctions. 2. Automatic Disclosure: Parties in federal court are required to make initial disclosure without request of the categories of documents they plan to use & names/addresses of any persons likely to have discoverable information (i.e. a witness). Includes computation of damages & any insurance agreement out of which a judgment will be paid. 3. Interrogatories: (Rule 33) A written question sent to a party that must be answered under oath & in writing. There is an obligation imposed to investigate before answering. Usually accompanied by a request for production of documents, and are the first formal discovery device used after filing a lawsuit. Can only be directed at a party. Can ask for any

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Other Rules of Discovery Rule 34: Motion for document requests Rule 45: Subpoenas Rule 30(d): Sanctions on improper deposition behavior Rule 37: Motion to compel & sanctions

information within the scope of discovery in Rule 26. 4. Depositions: (Rule 30) Taking testimony from a witness under oath, that is recorded & available for use later in action. Almost always done orally. Testimony taken as if at trial, with the exception of objections. Objections can be made, but unlike at trial the witness is usually required to answer the question even if he has an objection to it. (Rule 30(c)(2) when an objection is made it shall be noted on the record but the examination still proceeds; testimony is taken subject to any objection). BUT when an objection is based on privilege, counsel for deponent may instruct him not to answer the question (Rule 30(d)(2)). 5. Document Requests: (Rule 34) A party asks, usually in interrogatories, what documents exist relevant to a particular issue. When opposing party identifies the relevant documents, requesting party asks that they be produced. Motion for Document Requests: (Rule 34) Rule 34: (a) A party may serve on any other party a request within the scope of Rule 26(b) (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: 1. any designated documents or electronically stored information including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or (B) any designated tangible things; or (2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. (b) Procedure. (1) Contents of the Request. The request: (A) must describe with reasonable particularity each item or category of items to be inspected; (B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and (C) may specify the form or forms in which electronically stored information is to be produced. (2) Responses and Objections. (A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served. A shorter or longer time may be stipulated to or be ordered by the court. (B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons. (C) Objections. An objection to part of a request must specify the part and permit inspection of the rest. (D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form or if no form was specified in the request the party must state the form or forms it intends to use. (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored

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information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form. (c) Nonparties. As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things. Motion to Compel: (Rule 37(a)(3)) Rule 37(a)(3)&(4): Motion For (A) To Compel Disclosure. If a party fails to make a disclosure required by Rule 26(a) any other party may move to compel disclosure and for appropriate sanctions. (B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if: (i) a deponent fails to answer a question asked under Rules 30 or 31. (ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(4); (iii) a party fails to answer an interrogatory submitted under Rule 33, or (iv) a party fails to respond that inspection will be permitted or fails to permit inspection as requested under Rule 34. (C) Related to a Deposition. When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order. Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this subdivision (a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond. 1. When a party makes an objection to requested discovery, the party seeking discovery may make a motion to compel compliance. 2. Motion can be made only after the moving party has first in good faith conferred or attempted to confer with the opposing party in an effort to resolve the dispute without litigation. 3. Court will award attorneys fees against the party that loses a motion for a protective order or a motion to compel, unless the court finds their position substantially justified. (Rule 37(a)(5)) Sanctions on Discovery: Rule 26(g): All discovery requests & disclosures must be signed; violation of certification requirement results in sanction. Rule 30(d): The court may impose a sanction on any person who impedes, delays, or frustrates the fair examination of a deponent (i.e. by failing to attend a deposition of opposing party, or failing to subpoena a witness for a deposition with the result that the witness does not appear and opposing party incurs an expsense because of that non-appearance). 1. During deposition, deponent may seek a protective order to terminate or limit deposition on the grounds that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses deponent or party. 2. Lawyer can only instruct his client not to answer a question when it is privileged or otherwise protected by court order. Rule 37: Rule 37(b)-(f): (b) Failure to Comply with a Court Order. (1) Sanctions in the District Where the Deposition Is Taken. If the court where the discovery is taken orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of court. (2) Sanctions in the District Where the Action Is Pending. (A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent or a witness designated under Rule 30(b)(6) or Rule 31(a)(4)

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fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following: (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. (B) For Not Producing a Person for Examination. If a party fails to comply with an order under Rule 35(a) requiring it to produce another person for examination, the court may issue any of the orders listed in Rule 37(b)(2)(A)(i)-(vi), unless the disobedient party shows that it cannot produce the other person. (C) Payment of Expenses. Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust. (c) Failure to Disclose; to Supplement an Earlier Response, or to Admit. (1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or 26(e) the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). (2) Failure to Admit. If a party fails to admit what is requested under Rule 36 and if the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney's fees, incurred in making that proof. The court must so order unless: (A) the request was held objectionable under Rule 36(a) (B) the admission sought was of no substantial importance; (C) the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or (D) there was other good reason for the failure to admit. (d) Party's Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection. (1) In General. (A) Motion; Grounds for Sanctions. The court where the action is pending may, on motion, order sanctions if: (i) a party or a party's officer, director, or managing agent fails, after being served with proper notice, to appear for that person's deposition; or (ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response. (B) Certification. A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court

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action. (2) Unacceptable Excuse for Failing to Act. A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c). (3) Types of Sanctions. Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)(vi). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust. (e) Failure to Provide Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system. (f) Failure to Participate in Framing a Discovery Plan. If a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f) the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable expenses, including attorney's fees, caused by the failure. 1. If a party fails to make a disclosure, court may direct matters at issue to be taken as the prevailing party claims, striking pleadings, staying further proceedings, dismissing action, rendering a default judgment against the disobedient party, or treating disobedience as contempt of court. 2. 37(a)(1): a party who believes opponent has failed to comply with a proper discovery request must first confer informally with opponent, to see if the dispute can be resolved without resort to court. 3. If informal means dont resolve the matter, requesting party must move to compel disclosure or discovery under 37(a)(3). 4. If the motion is granted, court may order non-complying party to pay moving partys expenses and fees for the motion to compel. 37(a)(5). 5. Court may also enter protective orders defining scope of required discovery. 37(a)(5)(C). 6. If court grants a motion to compel but party still does not respond adequately, Rule 37(b) authorizes a variety of sanctions, such as striking claims, taking disputed facts or claims as established, excluding evidence, dismissing the action, or ordering payment of fees & expenses caused by refusal to comply. Discovery Misconduct: Generally comes in two shapes: (1) abuse of discovery to harass or embarrass or (2) failure to furnish discovery. 1. Overview of Rules: Motions to compel (Rule 37(a)) in cases of withholding info without good cause (i.e. failing to disclose). Sanctions are possible under Rule 37(c) if party wins a motion to compel or protective order. If you bring a motion to compel and are successful, and other party still fails to produce documents in full, certain game-changing sanctions may be available under Rule 37(b)(A)(2): o Responding party might get a default judgment entered in which case litigation is limited only to damages. o Attorney can be held in contempt (=prison or fines) o Enormous fines on responding party. Rule 26(g) is the equivalent of Rule 11 for discovery. Attorney is certifying that with respect to a disclosure, it is complete & correct, and with a request, that it was not interposed for any improper purpose and neither unreasonable nor unduly burdensome or expensive. Acting in bad faith in general will be subject to sanctions.

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Cases Zubulake v. UBS Warburg

Hickman v. Taylor

Redwood v. Dobson

CASE AUTHORITY FOR DISCOVERY Facts: P sued D employer for gender discrimination. P served D with document request for all documents containing any communication by or between Ds employees concerning P. D produced limited documents, claiming emails on electronic backup tapes would be expensive to recover, so P should bear the burden of cost. Rule: Presumption that responding party bears costs of complying with discovery requests. Cost shifting only appropriate when production imposes undue burden or expense on the party, it being undue when burden outweighs likely benefit. Court: Apply multi-factor test. Ordered sample discovery of inaccessible emails in order to determine how expensive retrieval really would be and to get a sense of their value to the case. Facts: Ds boat sank. Ds attorney took statements & prepared memoranda. Ps interrogatory asked if D took any statements and, if so, to produce them, and another rog asking if D prepared any memoranda, and if so, to produce them. Issue: Was the request for the substance of the statements proper? (no FRCP at the time about work product) Court: Ps request was within the scope of discovery & not privileged because they were statements of witnesses, not attorneys client. BUT court still finds documents not discoverable because (1) documents available from other sourcesdirectly from witnesses, public hearing recordsand (2) deep sense that it would be unfair to let a part take advantage of opposing partys work. Doing so would be against public policy, the adversary system, would inhibit lawyers from writing things down accurately. Court requires party to show information in unavilable elsewhere, is necessary, and that not having it would cause hardship or injustice. While exceptions may be made for witness statements with minimum showing info is not available elsewhere, memoranda is further protected (although no standard per se is espoused). Facts: Attorney was harassing witness during deposition. Witnesss attorney instructed him not to answer, and then after a recess he only gave evasive, meaningless answers. Court: Sanctioned bad conduct all around: deposing lawyer violated Rules 26(g) and 30(d)(3) in conducting a deposition in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. Witnesss lawyer should have made a motion for protective order under Rule 30(d) and then instructed client not to answer under Rule 30(c)(2) (objections must be made in a non-argumentative and non-suggestive manner). This can only be done to protect a privilege or after making a motion under 30(d).

JUDGMENTS
Summary Judgment (SJ) Rule 56: Summary judgment Refresh: Rule 12(b): Defined: A determination made by the court without a full trial; may be issued as to the merits of an entire case, or of specific issues in that case. Only appropriate when the evidence before the court demonstrates that there are no disputed issues of material facts to be tried, and the moving party is entitled to judgment on the undisputed facts. Impact of Judgments: Marks end of case. Triggers certain deadlines (i.e. appeal) and may have the effect of barring future litigation altogether or deciding certain issues (issue/claim preclusion). NOTE: Movant cannot just claim there is no evidence; moving party has some burden of showing there is a presumptive reason to think non-moving party cannot meet his burden of production. POLICY: Judicial efficiency; designed to allow early resolution of cases in which P meets the

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Judgment on the pleadings

minimal burden of pleading the elements of a compensable claim, but cannot prove one or more of those elements. Rule 56: (a) Court shall grant SJ if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. (c) Procedures: (1) A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record. (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. (2) A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. (e) If a party fails to properly support an assertion of fact as required by 56(c), the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of motion; (3) grant SJ if the motion and supporting materials show that the movant is entitled to it; or (4) issue any other appropriate order. Causes for SJ: Rule 56(c)(1)(B) Moving party has initial burden of presenting information that clearly establishes that there is no factual dispute regarding the matter upon which SJ is brought. Two ways: 1. Negation: Movant can submit affirmative evidence that negates essential element of opponents claim. 2. Showing: Movant can demonstrate that non-moving partys evidence is insufficient to establish an essential element of Ps claim by showing the absence of evidence in the record (i.e. through interrogatory answers that no witnesses can testify). a. POLICY: Often simpler & less expensive; can limit the number of non-meritorious claims that go to trial (no evidence, no way to meet burden). Rebutting a Motion of SJ: 1. When motion is made, non-moving party must respond by producing evidence (anything that would be admissible at trial) that tends to prove the challenged element and establish that there is a genuine issue of material fact (Rule 56(e)). If such evidence is presented, SJ must be denied. 2. A party who bears the burden of proof on an issue may decline to respond to a motion for summary judgment on the grounds that, because the motion has not been properly supported, no response is required. a. A cautious P will always submit evidence in response to a motion for SJ, even if she does not think D has met his burden of proof in making the motion. In doing so P must follow the formal requirements of Rule 56(e) as to the evidence allowed. b. Possible evidence: affidavits, depositions, etc. made on personal knowledge (no hearsay) that shows the competence of the witness to testify. 3. Non-moving party may ask for more time to properly support/address fact (Rule 56(d)). 4. Responding party cannot rely on allegations in the pleadings, since essence of SJ is to go beyond the pleadings to determine if what appears to be a factual dispute is or is not genuine. Judging Sufficiency of Motion for SJ: Reeves Rule (provided motion is properly supported) 1. Judges may evaluate all evidence in the record to determine whether it is sufficient to establish a genuine issue of material fact. 2. BUT preoffered evidence cannot be weighed by comparing it to opposing evidence. 3. No credibility determinations can be made. 4. Evidence is construed in light most favorable to the party opposing the motion. a. Consider only the evidence favorable to non-moving party & the uncontradicted,

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unimeached evidence of disinterested witnesses unfavorable to him (i.e. someone with no direct interest in outcome like D has). b. Disregard all evidence that the jury is not required to believe. 5. Any doubts will be resolved against the movant. 6. All inferences will be drawn in favor of non-moving party. 7. Judge need only determine if non-movants evidence on an issue is facially plausible & capable of being accepted by a rational factfindermay require judge to make some qualitative evaluation of strengths of parties factual showings. Compared:
# Name When to Raise 12 Judgment on the Pleadings Post pleadings, prediscovery Post discovery (max 30 days), pretrial During jury trial, after issue has fully been heard; close of Ps case & after both sides have rested Description Has P met burden of pleading? Has P pleaded facts that state plausible claim that would entitle pleader to relief? Facts assumed true. Sources: language of complaint, wisdom & experience of judge, & governing law Has P met burden of production? Has movant shown there is no genuine issue of material fact? Facts in issue. Expressly challenges pleadings allegations (piercing the pleadings) Assertion that particular pleaded fact is not provable. Need only consider cited material, but can consider all evidence. Sources: evidentiary materials, reasonable inferences, governing law Has P met burden of production/ persuasion? Could a reasonable jury find in favor of the nonmoving party? Evidence taken as whole. No legally sufficient evidentiary basis for a reasonable jury to find in non-moiving partys favor. Mirrors standard for granting SJ

56

Summary Judgment

50

Judgment as a Matter of Law

CASE AUTHORITY FOR SUMMARY JUDGMENT Adickes v. Kress Facts: White freedom teacher takes several black students to library & restaurant owned by D. They are kicked out of library, refused service at restaurant, and then woman is arrested outside. She files conspiracy suit against police & restaurant. Court: If the policeman was present in the store prior to the arrest, that is sufficient for raising a GIMF regarding conspiracy; reasonable fact-findinger could infer there was communication between police & store employees. There is no admissible testimony to establish he was in the store (only unsworn statements). Because there was silence on the issue in the record, D did not meet burden and court denies SJ. Facts: P sued D and several asbestos manufactuers, claiming that husbands death was caused by exposure to their products. D moved for SJ on grounds that there was no evidence to prove that husband had been exposed to Ds asbestos products. Court: Party moving for SJ does not necessarily bear the burden of supplying evidence showing the absence of a genuine dispute regarding a material fact.

Celotex v. Catrett

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Judgment as a Matter of Law (JMOL) Rule 50: Judgment as a matter of law

Defined: A motion made by a party during trial, claiming the opposing party has insufficient evidence to reasonably support its case. Directed Verdict: JMOL before jury deliberation. NOTE: Judge is likely to deny motion b/c of appeals process. If there is no jury verdict & judge is overturned, they have to start a whole new trial. This way judge preserves jurys deliberation (with the likely outcome in favor of judges motion) and JMOL may still be entered afterwards. JNOV (notwithstanding the verdict): renewed JMOL after verdict is delivered. Motion to court to set aside jurys verdict as unreasonable and enter judgment in favor of the party the jury found against. NOTE: In order to move for a JNOV, movant must have moved for a JMOL before jury retired as well. This procedural quirk is necessary b/c it is considered a violation of 7th Amendment for a judge to overcome a jury verdict; instead, judge is said to be reexamining not the verdict, but his previous rejection of JMOL. Rule 50: (a) Judgment as a Matter of Law. 1. In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. 2. Motion. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment. (b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgment or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may: 1. allow judgment on the verdict, if the jury returned a verdict; 2. order a new trial; or 3. direct the entry of judgment as a matter of law. Standard for Evaluation: 1. Same standard as SJ (Reeves rule): In deciding the question whether a reasonable jury could find in favor of P, the court should review all the evidence in the record, draw all reasonable inferences in favor of P, and not make credibility determinations or weigh the evidence. Although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. 2. Tests sufficiency of Ps evidence to meet burden of production. 3. JMOL is appropriate only if judge determines that no reasonable jury could have found in favor of party opposing the motion. 4. NOTE: In theory the rule says one witness, even an interested witness, is enough to create a question of fact for the jury. However, consider Simblest case where court held there was no matter to go to a jury even though one witness shared testimony with the P. Typology of Undisputed Facts: Sioux & Pacific R.R. v. Stout; when should cases be given to a jury on uncontested facts? 1. Documents/contracts: matter of law for judge 2. Clearly no negligence: matter of law for judge 3. Definitely negligence: matter of law for judge 4. Range between (2) & (3): matter of fact for jury. In some situations, even where the facts

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are undisputed, the issue is close enough that the facts may give rise to different interpretations. In this class of cases, it should be up to the jury to decide. CASE AUTHORITY FOR JMOL Simbest v. Maynard Facts: Fire engine driven by D was struck by a car driven by P. Ps testimony was in conflict with all of the other witnesses. Witnesses testified that the traffic light was inoperable due to a power outage and that the fire trucks lights & sirens were on at the time of the accident. One witness said she did not hear the sirens, and P claimed no lights/sirens, and that the light was green. Court granted motion for JMOL. Court: Issue turned on whether a reasonable jury could find in favor of P on issue of sirens & lights (statutory rule must stop for fire truck). Applying Reeves rule, only uncontroversial evidence taken into account. P claims he did not see truck until he was in intersection. Since his glancing was so short, court holds it was as if he didnt look at all. Since his testimony amounted to basically no evidence, court concluded lights were not on.

RIGHT TO JURY TRIAL

Constl Right to Jury Trial 7th Amendment: Right to a jury trial Rule 38(a): Codifies 7th amendment in FRCP Amendment: In suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of common law. Rule 38(a): (a) Right Preserved. The right of trial by jury as declared by the Seventh Amendment to the Constitution or as provided by a federal statute is preserved to the parties inviolate. NOTE: Seventh amendment does not create right, it preserves the right to a jury trial in federal courts as it existed at common law in 1791, the date of the amendments ratification. What right are we preserving?? Law Courts: Cases tried in front of a jury; typically for $$ damages. Equity Courts: Cases heard by a judge; provided injunctive relief. Historical Test: Suits at common law Two part test: (1) compare the statutory action to its closest analogous claim in 1791court of law or equity? (2) examine the remedy sought and determine whether it is legal or equitable in nature. 1. If the case would have been tried in an English law court in 1791, then it is deemed an action at common law and is jury triable as of right. If the case would have been tried in a court of equity, than it is not triable to the jurya judge will decide the facts. 2. If the claim didnt exist in 1791 (as most statutory claims did not), look to its closest historical analogy. 1. Analogy to claim 2. Analogy to remedy: $$ (legal, jury), specific relief/injunction (equitable, no jury). 3. Analogy to substantive right. 3. If case involves multiple legal AND equitable claims, then it should be tried to a jury, and the judge will rule seperately on equitable issues. NOTE: jury trial is a self-executing righthas to be demanded in a timely fashion by either P or D. (Rule 38(b)) Right to Jury Trial in Complex Litigation: An emerging problem. 1. Do parties have a right to trial by jury when a case is so complex that it is outside the practical ability of a jury to decide the case propertly? 2. Courts are SPLIT: Majority of courts reject this complexity exception to the 7th Amendment; a small number of courts (at least one) have held that a case can be so exceedingly complex that there should be no right to a jury trial. However, there is no SCotUS decision on point. In re Japanese Electronic Products Litigation test: When a jury will not be able to perform its 7th

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task of rational decision-making with a reasonable understanding of the evidence & the relevant legal standards, the interests protected by the DPC carry greater weight than the interests served by the constitutional guarantee of a jury trial. The 7th Amendment does not guarantee the right to a jury trial in these suits. POLICY: 5. For Taking Cases Away From Jury: (1) judge has professional diligence; (2) judge has experience in & better understanding of civil litgation; (3) any professional experience that might have aided jury will be gone because professionals cant afford to take time off work for long jury trial; (4) judge can ask questions from bench & can re-open trial if necessary; (5) if jury cant understand evidence/legal theories, decision rendered is too arbitrary; (6) preserves impartiality of adversary system; (7) we are wary of having a local jury (and their cultural geography, political attitudes, and perceptions) decide constitutional issues, which should be pulled towards political center. 6. Against Taking Cases From Jury: (1) If 5th & 7th Amendment are in conflict, we should preserve both; (2) multi-party juries are better & more efficient at collective decision making than a single judge; (3) jury may have access to a range of community values that judge does not; (4) juries have advantage of a variety of life experiences and perspectives. CASE AUTHORITY FOR RIGHT TO JURY TRIAL In re Japanese Facts: Complicated anti-trust case about predatory pricing conspiracy, Electronics Products alleged to have gone on for over 30 years. Dozens of Ds, hundreds of Litigation products and factual and legal issues. Ds argue jury demand should be struck because it would violate DPC. Ds probably worried about jurys xenophobic bias against foreign Ds. Court: Due process right > right to jury trial based on the fact that judges can accomplish much of what juries do, perhaps even better. Dissent: Court should not sacrifice a constitutional right (jury trial) to vindicate a non-constitutional right (joinder). If case is too complicated, why not break up complexity? Make P sue smaller # of Ds, or break up products or time period. Courts have tremendous discretion to sever claims. Right to join all Ds together is part of FRCP, not a constitutional procedure. Scott v. Harris Facts: High-speed police chase. Officer Scott struck Harriss car to stop him, which tipped and left Harris a parapalegic. There is a video of the chase from the police car that shows him driving past other cars, swerving between lanes, etc. JMOL entered on qualified immunity charge. Issue: Can undisputed evidence still be subject to different interpretations, that should be given to a jury? Court: SPLIT justices. 8 justices say video shows Harris acting unreasonably & dangerously in driving. They vote Scotts conduct was reasonable as a matter of law and therefore there is no issue to be tried to the jury. Dissent: (Stevens) If facts were enough in dispute to create such a divide in the court, it should be enough to infer that the case was a close enough call to go to the jury to decide.

PRECLUSION
Preclusive effect of prior adjudication Claim Preclusion (Res judicata) Restatement Lesser forms of preclusion: 1. Law of the case: if a judge has decided a particular issue in an earlier part of the case and comes across it again, judge will stick by its earlier decision. 2. Stare Decisis: presumptively constrained to apply the laws of earlier rulings. Background: Forecloses relitigation of claims that were or could have been raised in a prior action. POLICY: 1. Fairness; Parties are given broad procedural liberty in pleading, joinder, discovery, etc. Once the parties have had a full and fair opportunity to be heard under these flexible rules, it is fair to limit attempts at a second bite at the apple in hope of a more

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2d 17 4 elements: identical claims & parties, and a court of competent jurisdiction rendered judgment on the merits. Restatement 2d 24: Rule against claim splitting

favorable result. 2. Efficiency; limits burden on courts of relitigating decided claims and allows other parties to move on with their lives. Further, avoids embarassment of differing judgments in the same suit. 3. Accuracy; encourages parties to take full advantage of the FRCP to present their claims initially, since they know they will not get a second chance to try the suit. Restatement 2d 17: A valid & final judgment is conclusive between the parties, except on appeal or other direct review, to the following extent: (1) If the judgment is in favor of P, the claim is extinguished & merged in the judgment and no new claim may arise on the judgment. (2) If the judgment is in favor of D, the claim is extinguished and the judgment bars a subsequent action on that claim. (3) A judgment in favor of either P or D is conclusive, in a subsequent action between them on the same or a different claim, with respect to any issue actually litigated & determined if its determination was essential to that judgment. Elements of Claim Preclusion: 4 elements must be met for a subsequent claim to be barred by claim preclusion: (1) the parties in both the prior and current suit must be identical; (2) a court of competent jurisdiction must have rendered the prior judgment; (3) the prior judgment must have been final and on the merits; and (4) claims must be the same in the first & second suit. (Davis v. DART). Same Claim: What constitutes a claim for preclusion sake is broader than under pleading rules, for example. Courts apply a transactional test: Restatement 2d 24: A courts prior judgments preclusive effect extends to all rights of the P to all remedies against D with respect to all or any part of the transaction, or series of transactions, out of which the original claim arose. What grouping of fact constitutes a transaction or series of transactions must be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties expectations or buisness understanding or usage. 1. Critical issue: whether the two actions are based on the same nucleus of operative facts. a. Look at unities of time, place, origin & motivation. b. Does this make a convenient trial unit? c. Does it compose a logical universe of questions to ask in discovery? d. NOTE: This is pragmatically the equivalent to the compulsory joinder rule. 2. Includes all rights & all remedies with respect to a transaction or series of connected transactions. Under this approach, P must join all claims she has arising out of a particular transaction or the omitted claims or theories of relief will be barred by claim preclusion. 3. NOTE: state courts are free to apply their own preclusion standards. Many have adopted this standard, but CA and NJ noticably have different standardsprimary right & entire controversy, respectively. Exceptions to Rule Against Preclusive Effect of Claim Splitting: Restatement 2d 26: When any of the following circumstances exist, the general rule against splitting claims does not apply to extinguish the claim: (a) Parties have agreed P may split claim. (b) Court in the first action has expressly reserved Ps right to maintain 2d action. (c) P was unable to rely on a certain theory of the case or to seek a certain remedy or form of relief in the first action because of the limitations on the SMJ of the courts. (d) Judgment in the first action was plainly inconsistent with fair & equitable implementation of a statutory or constitutional scheme. (this rarely happens).

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Mutuality & Claim Preclusion

(e) For reasons of substantive policy in a case involving a continuing or recurrent wrong, P is given an option to sue once for the total harm, both past & prospective, or to sue from time to time for the damages incurred to the date of suit, and chooses the later course. (i.e. nuisance). (f) It is clealy & convincingly shown that the policies favoring preclusion of a second action are overcome for an extraordinary reason, such as the apparent invalidity of a continuing restraint or condition having a vital relation to personal liberty or a failure of the prior litigation to yield a coherent disposition of the controversy. (these are also complicated & rarepersonal liberty is not usually an issue in civil cases.) 1. Limits on SMJ (26(c)): When the court in the first action would clearly not have had jdx to hear the omitted theory then a second action should not be held precuded. 2. BUT 26(c) instructs P to choose the more jurisdictionally competent forum if P has two causes of action and a choice between two courtsone that can hear both of Ps claims, and one that can hear only one of them. Choosing the jurisdictionally restricted forum runs the risk claim preclusion will prevent P from bringing the other cause of action in a different forum in a later suit. 3. So long as the forum in which the first suit is filed is jurisdictionally competent to hear state & federal causes of action arising out of the claim, P must assert all of his causes of actionboth state & federalin the first suit. Judgment On the Merits: Subsequent action will be barred if the P had a full opportunity to litigate the merits in the first action. 1. Give Full Faith & Credit to judgments from other jurisdictions ( Art. IV & 28 USC 1738). 2. Certain dismissals, such as for improper venue or lack of PJ do not bar a second action on the rationale that the court never reached the merits in the first action. 3. 12(b)(6) is a judgment on the merits according to Restatementbars all future actions on same facts; dismissal because of a statute of limitations defense does not. Defined: How can a person who is not formally a party in action I be bound in future litigation by the decision rendered in action I? When we say a judgment is binding between two parties, the fact that theyre a party means they had notice and an opportunity to be heardpresumptively satisfying procedural due process. D & P are bound because theyve had their day in court. When binding a non-party, we want to make sure they also had due process. Generally, non-parties to an action are not bound by the judgments of those actions. There are six exceptions enunciated: (Taylor v. Sturgell) (1) Consent: A party who expressly agrees to be bound by the determination of issues in an action between others is bound in accordance with the terms of that agreement (i.e. test cases). (2) Pre-existing Legal Relationship Between Parties: Certain substantive legal relationships such as preceeding & succeeding owners of property, etc. are bound. (3) Adequacy of Representation: Non-party may be bound because he was adequately represented by someone with the same interests who was a party to the suit (class actions, and suits brought by trustees, guardians, and other fiduciaries). (4) Control: A party who assumed crontol over the litigation behind the scenes is bound by the judgment. (5) Proxy Litigation: A proxy representing the person bound by earlier judgment will be similarly bound. (6) Statutory Scheme: In certain circumstances, a special statutory scheme may expressly foreclose successive litigation by non-litigants if the scheme is otherwise consistent with due process (including bankruptcy & probate proceedings). Preclusion by Prior Representation in Court: Easy cases: appointed legal representation & class actions. Taylor inquires how much further does court want to extend adquacy of representation exception? 1. A partys representation of a non-party is adequate for preclusion purposes only if at a

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Issue Preclusion (Collateral estoppel)

minimum (1) the interests of non-party & representative are aligned, AND (2) either the party understood itself to be acting in the representative capacity or the original court took care to protect the interests of the non-party. In some cases, an addl requirement (3) notice of the original suit to the person alleged to have been represented is also necessary. 2. Court wants to make sure representative is sure of its obligation and will be held responsible for those obligations. Control: Although not named as a party, the person was really steering the case (think insurance companies). Rationale is they have vicariously had their day in court by virtue of dictating what other party did at critical stages of the case. Proxy Litigation: Proxy represents interest of party in original action, and trying to avoid preclusion by re-litigating through a proxy. Burden is on D to prove proxy-relationship (as an affirmative defense). Defined: Refers to the finality attached to a final decision on an issue of fact or law. Party who lost on an issue may not relitigate it in subsequent litigation against the same party. POLICY: judicial efficiency & judicial consistency. Restatement 2d 27: A judgment in a prior proceeding bars a party from relitigating an issue if, but only if, (1) issues in both proceedings are identical, (2) issue in prior proceeding was actually litigated and actually decided, (3) there was a full & fair opportunity to litigate in the prior proceeding, and (4) the issue previous litigated was necessary to support a valid & final judgment on the merits. Identical Issues: 1. May be treated diferently if different burdens of proof apply. Actually Litigated: parties are genuinely adverse on the issue and evidence on that issue was presented to the court. Essential to the Judgment: 1. Alternative Determinations: If a court grants judgment for P based on multiple alternative findings of fact/law, should any or all of these findings be given collateral estoppel effect in a later proceeding? SPLIT a. An alternative determination is no less such for being alternative, especially given the multi-issue modes of litigation common in modern procedure. Issue preclusion applies to both determinations. b. An alternative determination is, in essence, dictum. A court would have reached the same result with or without the determination; issue preclusion should be denied to either decision. c. POLICY: Courts tend to have less confidence in alternative findings. Because each could have been essential to the judgment, we are worried that judge may not have weighed each issue equally, or that judgments rendered over multiple issues are less likely to be appealed because of the likelihood that at least one of the issue decisions will be upheld and another not reached. If party were to appeal solely for the purpose of avoiding issue preclusion, then the rule would be responsible for increasing the burdens of litigation on the parties & court rather than lightening those burdens. Full & Fair Opportunity to Litigate: A full judicial proceeding, or a non-judicial proceeding that is sufficiently formal and offers sufficient procedural safeguards that the proceeding approximates a judicial proceeding. 1. Most administrative agency hearing will have preclusive effect in later court suits between same parties if a full adversary hearing was available. 2. In some circumstances, the unavailability of appeal prevents a judicial determination from having issue preclusion effect. 3. Different burdens of persuasion may prevent estoppel. Considerations of Fairness: 1. Was it foreseeable that the factual issue might come up in later litigation? 2. Did the party have an adequate incentive to litigate the issue the first time?

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Non-mutual Issue Preclusion

Defined: How can a person take advantage of a judgment in an action where they were not a party? Mutuality: Traditionally, you could not take advantage of a judgment in which you were not a party to the action unless you would be bound by the judgment. Not bound, no benefitwouldnt be bound by a loss, cannot benefit from a win. Non-mutual issue preclusion changes this. Even though you could not have been bound by the judgment, you may still take advantage of it. Taylor v. Sturgell Golden Rule: As a matter of due process, you cannot be bound by a judgment in an action unless you were a party or you fit within one of the Taylor exceptions to the rule that you have to be a party. This rule does not change. Defensive Non-Mutual Issue Preclusion: Used by a new D in a subsequent action who wants to assert a final judgment on an issue against the P from the first suit. Offensive Non-Mutual Issue Preclusion: Used by a new P in a subsequent action who wants to assert a final judgment on an issue against the D from the first suit. 1. General Rule: In cases where P could have easily joined in the earlier action, or where the application of offensive NMIP would be unfair to D, court should not allow offensive issue preclusion. 2. Discretionary Standard: Trial court must assess on a case-by-case basis whether allowing a non-party to assert issue preclusion in a particular case would be unfair under the circumstances. Courts may consider various factors to decide whether D had a full & fair opportunity to litigate in the first action: a. Whether it would have been easy for the non-party to join the earlier action. b. The degree to which subsequent suits were foreseeable. i. Did D have a sense of what the real stakes were in the case re: potential subsequent suits that would motivate him to litigate vigorously in his own defense? ii. Conversely, D may overcompensate when he knows other Ps are waiting on the wings for the decision and put in an extreme amount of effort defending a particular claim. c. Whether there are procedural opportunities available to a party in the second action that were not present in the first, which may make a difference in the outcome (i.e. if the first case was tried to a judge, and D in the second trial had a right to a jury trial. Parklane allowed use of offensive estoppel even though D was deprived of his 7th amendment right on ths issue). 3. POLICY: Offensive issue preclusion does not really support efficiency goals because it encourages Ps to hang back until first action is decided. Also, fairness concerns for D, who may not have litigated the first action as thoroughly as he could due to low stakes, not expecting a later tidal wave of litigation. Finally, procedural restrictions in the first action v. the second action (like lack of jury) may weigh scales against allowing issue preclusion.

JOINDER & SUPPLEMENTAL JURISDICTION

Basic Rules of Joinder Rule 20: Joinder of parties Rule 18: Joinder of claims Rule 13: Defined: Liberal joinder rules allow a party to consolidate multiple parties or claims into a single trial, when the issues overlap sufficiently to make the process more efficient or fair. NOTE: Joinder does not confer SMJ. For every claim, SMJ (& in some cases PJ) must be analyzed seperately. At times, FRCP will authorize joinder but the court will not have jdx to hear addl claim. POLICY: (1) When a number of claims involve a single T/O and the same issues will have to be litigated to resolve each claim, it is more efficient to litigate those issues once in a combined action than repeatedly as separate suits. (2) Also, resolving issues in a single action avoids the possibility of inconsistent judgments on the same issue, which reflects unfavorably on the judicial system. SMJ or SuppJ must also apply: Federal Q: So long as claims are part of same case or controversy under Article III, SuppJ applies. Because of the relatedness requirement of Rule 20, the same case/controversy

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Counterclaims Rule 14: Impleader

requirement is necessarily satisfied in all circumstances where the rule permits joinder. Diversity: Joinder of parties must not defeat complete diversity, BUT so long as 1 P has met amount in controversy, other Ps may ride along even if their recovery is less than jdx minimum (supplemental jurisdiction 1367(b)).
Rule 20 Joinder of Parties 20(a)(1): Allows Ps to sue together if claims arise from same T/O & there is a common issue of law or fact. 20(a)(2): P may join multiple Ds in single action if same T/O & common issue of L/F. Rule 18 Joinder of Claims 18(a): Party may join any add'l claims it has against opposing party. Subject to rules of claim preclusion. Rule 13 Counterclaims 13(a): Compulsory; D's counterclaim must arise from same T/O as original claim. 13(b): Permissive; any other claim, may be completely unrelated. 13(g): Permissive crossclaims, arising out of same T/O as original claim. Rule 14 Impleader 14(a): D has ltd right to bring new parties into suit for indemnity or contribution. Must be related to original action.

Joinder of Parties: Rule 20: (a) Persons Who May Join or Be Joined. (1) Plaintiffs. Persons may join in one action as plaintiffs if: (A) 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. (2) Defendants. Persons may be joined in one action as defendants if: (A) any right to relief is asserted against them 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 defendants will arise in the action. (b) Protective Measures. The court may issue orders including an order for separate trials to protect a party against embarrassment, delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party. Joinder of Ps: 1. Allows Ps to sue together if they (1) assert claims arising out of the same T/O & (2) their claims against D(s) involve a common question of L/F. 2. PJ must be met for each D seperately. Joinder of Ds: 1. Identical reqs. of same T/O & a common q of L/F. 2. These are permissive but not required. 3. $$ in controversy must be met for each D individually. Protective Measures: 1. Judge has great discretion in deciding whether to sever claims to prevent prejudice against any party (perhaps one who is less culpable than co-Ds, for example). 2. Judge applies common law due process instictswill joinder make judgment more accurate? More efficient? At what costs? Joinder of Claims: Rule 18(a):

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A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party. 1. What claims can P bring in the same action in federal court? a. When federal court has original jurisdiction. b. Some state law claims may be brought: When there was an original federal claim, P may join all other claims (even against non-diverse parties) that are part of the same constitutional case or controversy under Article III: 2. Joinder of claims is not required by Rule 18(a), but the rules of claim preclusion may cause a claimant to lose the ability to bring any unasserted claims in a later suit. 3. Refresh: Restatement 2d 24claim preclusion will bar all rights & all remedies of P against D arising out of same T/O if they could have been litigated in original action. Counterclaims: Rule 13: (a) Compulsory Counterclaim. (1) In General. A pleading must state as a counterclaim any claim that at the time of its service the pleader has against an opposing party if the claim: (A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and (B) does not require adding another party over whom the court cannot acquire jurisdiction. (b) Permissive Counterclaims. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory. (g) Crossclaim Against a Coparty. A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim. Compulsory Counterclaims: 1. When counterclaim arises out of same transactiondefined as logical relationshipas the original action that considerations of judicial economy & fairness dictate that all issues be resolved in one lawsuit. 2. Counterclaim must be asserted or is lost. 3. Within SuppJ Permissive Counterclaims: 1. Non-compulsory, non-transactionally related. 2. Traditionally, an independent basis for jurisdiction was required to prevent federal court adjudication of every conceivable non-compulsory counterclaim D happened to have against P, some of which might be totally inappropriate for federal jdx. 3. Are state law permissive counterclaims within SuppJ? (Jones v. Ford) a. 1367: all other claims in a civil action so related to claims in the action within the federal courts original jurisdiction that they form part of the same case or controversy under Article III. b. Some factual relationship: A loose factual relationship that is not enough to constitue the same transaction for compulsory counterclaim purposes is enough to establish it is part of the same constitutional case for SuppJ. c. No factual relationship: Prior to passage of SuppJ statute this was sufficient for pendent jurisdiction. Judge Fletcher urges that 1367 codifies judicial understanding of what a constitutional case was, keeping it consistent with prior decisions. If this is true, that historical practice required no factual relationship, then a constitutional case probably likely does not require any factual relationship, at least in counterclaims involving set off. d. NOTE: transaction for preclusion purposes is narrower than transaction for permissive joinderwhere the line is drawn is dependent on underlying policies. Does court construe transaction narrowly with regards to what claims court wants

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to enforce P bringing? Too broadly, Ps are forced to bring claims out of fear of preclusion. e. NOTE: Judge still may exercise his power per the discretion provision ( 1367(c)) to sever state claims even if theyre within SuppJ. Crossclaims: 1. A claim against a party on the same side of the v. 2. Permissive; must arise out of same T/O as original claim. Interpleader: Rule 14(a): (1) A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it(14(a)(3))The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. 1. Gives D a limited right to bring new parties into the suit against (1) whom he has claims related to the main action and (2) who may be liable for all or part of any recovery P obtains on the main claim (i.e. indemnity & contribution). 2. Requires impleaded party to be liable to D for all or part of Ps claim against D. 3dPDs liability necessarily depends on outcome of main claim. 3. Impleader claim treated like an original suit for pleading, service & other purposes. Rule 8 & 11 still apply, and 3dPD may respond under Rule 12. 4. 3dPD may make claims of his own, including counterclaims, crossclaims, & claims against original P that arise out of same T/O. All within SuppJ. 5. 3dPD falls within courts SuppJ. 3dPDs citizenship is unimportant, and no amount in controversy requirement must be satisfied. CASE AUTHORITY FOR JOINDER Kedra v. City of Facts: Series of beatings, harassments, lies about rights, etc. against Philadelphia Kedra family over the course of several years. Issue: Are these all part of the same transaction or series of transaction and/or do claims involve a common issue of law or fact? Court: All related to the prosecution of the son-in-law. In preclusion terms, there is relative unity of time, place, origin, & motivation. Even though the incidents take place over a lengthy time period, they are reasonably related all examples of police dept having it in for Kedra family. Ultimately, court has broad discretion to decide how to organize litigation. Decides to let discovery procede, and afterwards decide whether to sever claims.

ASCERTAINING APPLICABLE LAW

Erie Problem Choice of law Rules of Decision Act: The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply. Erie RR v. Tompkins: 1. Overruled Swift idea of federal general lawstate statutes, judicial decisions construing statutes, and statw common law is all part of the laws of the several states. 2. Except in matters governed by federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. a. Applies in diversity jurisdiction-based claims. 3. POLICY: Prevents Ps from gaming the system by forum shopping or artificially creating diversity to end up in federal court, where there case would be governed by different substantive law. Judicial system wants uniformity. Further, fosters respect for authority of the States uner federalism. Rules Enabling Act: (a) Supreme Court shall have the power to prescribe general rules of practice and

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procedure and rules of evidence for cases in the US district courts & courts of appeals. (b) Such rules shall not abridge, enlarge, or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. 1. Congressional delegation of the federal courts Constitutional rule-making power. 2. FRCP are not controlled by Erie because they are derived from a Congressional actREA. 3. The process of making FRCP is used to justify the valid promulgation of the Rules. Twin Goals of Erie: Discourage (1) forum shopping & (2) inequitable distribution of laws. Analyzing Erie Problems: 1. A true Erie problem under the RDA exists when a federal judge-made common law rule (whether substantive or procedural) that does NOT find its origin in the Constitution, a treaty, or an act of Congress is in conflict with a state law. 2. If this is the case, the basic rule is that a federal judge-made common law rule, not based on a Constitutional or statutory provision, must yield to state laws that are substantive. 3. Determining a particular state rule is substantive: a. State law rules that explicitly specify how real world actors (opposed to litigation actors) are to conduct themselves in pursuit of state regulatory goals are substantive. b. In cases where rules may be arguably procedural or substantive, courts may look to one of two tests: i. Purposive approach looks to whether the rule is intended to affect the conduct of real world actors in decision-making outside of the prospect of litigation. (E.g. Cities Serviceburden of production placed on equitable title claimant was substantive because legal title is something people rely upon in real world land transactions.) ii. Outcome Determinative, by which the court means whether viewed prspectively, a litigant would consider the rule in choosing between filing in state or federal court. The fact that a rule could somehow prove to be outcome determinative after filing does not matter if the difference between the rules would have had no impact on the decision whether to choose state or federal court, such as minor differences in service of process. Meant to measure the magnitude of the clash between state and federal law, evaluating whether application of state law would serve the twin aims of the Erie doctrine: prevent forum shopping & inequitable distribution of laws between state & federal court systems. Where these policies are not engaged, state law has no traction. Analyzing Hanna Problems: 1. If there is a federal statute, treaty, or Constitutional provision, court is charged with assessing whether federal enactment is valid, and hence preempts any conflicting state rule. a. If the provision is applicable and is itself a Constitutional provision or a statute, then courts simply follow federal law regardless of whether state rule was ubstantive in some sense (RDA & Supremacy Clause demands this). b. In the case of a FRCP, courts must decide whether rule is applicable & whether it was validly promulgated under REA. i. First courts must read the rule to see if it is applicable to the situation and actually conflicts with the relevant state law. If the FRCP is not applicable, then the analysis usually reverts to that of the traditional Erie problem. ii. Next, court must decide if the Rule was valid. SCotUSs rule-making power is limited to general rules of practice & procedure and cannot extend to rules that abridge, enlarge, or modify any substantive right. Standard view is that a FRCP is valid so long as it regulates matters which fall within the uncertain area between substance & procedure so are rationally capable of classification as either. iii. If rule is valid & reasonably procedural, federal rule is applied.

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Illustrative Erie Problems: 1. Whether to follow state statute of limitations when there is no applicable Congresionallyenacted SoL. (yes, outcome determinative) 2. Whether to follow state allocation of the burden of proof (yes, same reason) 3. Whether to follow state rules allocating issues between judge & jury (no, not heavily outcome determinative and will not induce forum shopping). CASE AUTHORITY IN ERIE PROBLEMS Erie v. Tompkins Facts: Tompkins walking next to railroad track in PA when an Erie train passes & cuts off his arm. Brings diversity case in NY; outcome turns on whether court applies PA or federal law. Court: Except in matters governed by the Constitution or acts of Congress, law to be applied in any case is the law of the state. There is no such thing as general law. Guaranty Trust v. Facts: Disagreement on whether state or federal statute of limitations York should apply. Court: Test is not whether a rule is substantive or procedural but whether the outcome of the litigation in federal court would be substantially the same as if it would be tried in state court. A party should not be able to manipulate the state & federal court systems solely to bring a claim in federal court that would otherwise be defeated in state court. This test is designed to preserve policy rationales in Erieprevent forum shopping & provide clarity in making real life decisions. Hanna v. Plumer Facts: Conflict between state service of process law and FRCP. Court: When a FRCP conflicts with state rule, the FRCP applies unless invalid or unconstitutional. Although FRCP are not immunized, because the rules are scrutinized & approved by advisory committee, SCotUS & Congress there is a presumption of validity. Therefore, if a FRCP applies to regulate the procedure of federal courts and does not abridge, enlarge, or modify a substantive right, FRCP trumps state law. In dicta, had court applied York outcome determinative test there would have been a different, but a trivial one. The difference in service of process would not affect forum choice. There is no great inequity, so the FRCP applies.

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