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CIVIL PROCEDURE
7 Main Questions ................................................................................................................... 1 1.Subject Matter Jurisdicition: authority to hear the case........................................................1 SMJ for State Courts............................................................................................................. 1 SMJ for the Federal Courts.................................................................................................... 2 Federal question Jurisdiction 1331.....................................................................................3 diversity of citizenship 1332.............................................................................................. 6 Federal Supplemental Jurisdiction/pendency........................................................................9 2.Personal Jursidcition .......................................................................................................... 11 Traditional bases of Personal Jurisdicition..........................................................................12 Specific Jurisdicition: Long Arm Statutes ...........................................................................14 General Jurisdiction............................................................................................................ 19 INternet Contacts............................................................................................................... 20 Jurisdiction based on Property............................................................................................21 Federal Court Jurisdiction-FR 4K......................................................................................... 23 Challenging Jurisdiction...................................................................................................... 24 3.Notice and Opportunity to be heard...................................................................................24 4.Service of Process.............................................................................................................. 26 5.Venue 1391..................................................................................................................... 30 6.Removal 1441.................................................................................................................. 34 7.Waiver of Defenses............................................................................................................ 36 Erie Doctrine......................................................................................................................... 36 Subsequent Application...................................................................................................... 40 Ascertaining State Law: How should a federal court determine state law?........................42

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Inverse Erie When there is Concurrent federal jurisdicition.............................................43 Specific Federal Common Law............................................................................................44 Pleading................................................................................................................................ 45 Heightened Pleading Standards......................................................................................... 48 Responding to the complaint- The Answer.........................................................................50 Motions against the complaint...........................................................................................51 Amendments of Pleading- Federal Rule 19.........................................................................52 Relation Back of Amendments........................................................................................... 53 Sanctions........................................................................................................................... 55 joinder of Claims................................................................................................................... 56 Permissive JOinder of Claims- What claims may a P join?...................................................56 Permissive Joinder of Parties- Rule 20................................................................................57 Compulsory Joinder of Parties............................................................................................58 Counter Claims................................................................................................................... 59 Cross Claims- Federal Rule 13g..........................................................................................60 Third Party Claims - Federal Rule 14 .................................................................................60 Intervention........................................................................................................................ 61 Impleader- Rule 22, 1357...............................................................................................62 Class Action........................................................................................................................ 63 CLASS ACTION PROCEDURE:........................................................................................... 63 CLASS CERTIFICATION..................................................................................................... 65 JUDICIAL MANAGEMENT OF CLASS ACTIONS: Rule 23d...................................................71 SETTLEMENT OF A CLASS ACTION: Rule 23e...................................................................71 APPEALS: Rule 23f- Permits interlocutory appeal on certification....................................73 ATTORNEY FEES: ............................................................................................................ 73 Discovery: Rules 26-37.......................................................................................................... 73 SCOPE OF DISCOVERY..................................................................................................... 74 DISCOVERY DEVICES....................................................................................................... 76

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WORK-PRODUCT DOCTRINE- Rule 26B............................................................................80 Future of Discovery/1993 Amendments .........................................................................81 PRE-TRIAL MANAGEMENT................................................................................................ 83 Summary Judgment- Rule 56.................................................................................................83 Jury Trials.............................................................................................................................. 90 Extra...................................................................................................................................... 93

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CIVIL PROCEDURE
7 MAIN QUESTIONS

Issues with Constitutional Dimensions 1. Does the Court have Subject Matter Jurisdiction? Does the Court have the power to hear the dispute? CANNOT WAIVE SJ Federalism, Constitutional power of the court

2. Does the Court have Personal Jurisdiction? Do they have power over the defendant? Due Process Power over D

3. Has the defendant been give notice and opportunity to be heard? Due Process

Issues without a Constitutional Dimension 4. Has the defendant been served with process properly? service of process rule been complied with

5. Does the court have venue? What court within the system should deal with it? 6. Removal

7. Have any of the preceding 6 issues been waived?

1. SUBJECT MATTER JURISDICITION: AUTHORITY TO HEAR THE CASE SMJ FOR STATE COURTS

Courts of general jurisdiction, empowered to hear all cases in law and equity

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Lacks v. Lacks: Wife challenged the final decree of NY divorce b/c no SMJ.
The court held that the overly stated principle that lack of SMJ made a final judgment absolutely void was not applicable to cases which did not involve jurisdiction, but merely substantive elements of a cause for relief. Lots of evi. that he was NY resident. Litigation over.

the assertion of insufficient residency, though an element of the claim, doesnt affect the courts competence to decide this claim o State courts usually divided up by subject matter for the sake of efficiency and economy- every state makes up their own court structure, ability to transfer backwards/forwards Ability to hear a case based on nature of the dispute is determined by: state constitution, state statutes, judicial decisions

SMJ FOR THE FEDERAL COURTS

NOT Courts of General Jur. LIMITED JURISDICTION: They only have the SMJ given to them through Article 3: must fall under 1331 or 1332 (Federal statutes), judicial decisions The party seeking to invoke the jurisdiction of a federal court has to make an affirmative showing that the case is within the courts subject matter jd of limited jurisdiction, authorized to hear 9 categories of subject matter (most important Federal Question and Diversity) Constitution, Article III, 2 the judicial power of the US shall extend to all cases: o Arising under the Constitution, laws of the US = Federal Question o Between a state and citizens of another state o Between citizens of different states o Between a state, or citizens thereof, and foreign states, citizens, or subjects No matter when the deficiency of subject matter jd is noticed, the suit must be stopped and dismissed Rule 12h3

Implementing 1332 of the judicial code Federalism concern: 10th Amendment all powers not expressly delegated to the federal government are reserved to the state. Construe power narrowly so you dont rip off state judicial power

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Whenever no subject matter Court shall dismiss the action. Rule 12(h)(3) Up to parties to state jurisdiction basis unless court already has jurisdiction and claim doesnt need new jurisdictional support Rule 8
o

Capron v. Van Norden (1804): Capron sued D for negligence; D

wins, on appeal the Court overturned the verdict because the LC did not have SMJ-diversity of citizenship hadnt been established

Federal courts will throw out a case for lack of subject matter jurisdiction even if it has already made it to the appellate stage by the time the problem is discovered. Imposes on the courts the obligation to make sure case has SMJ.

FEDERAL QUESTION JURISDICTION 1331

The Plaintiffs cause of action must arise under the constitution, treaties, or laws of the United States. Watch out for questions that invoke federal language, but arise under state law Federal law can create a substantive right but not authorize anyone to sue privately under that right o When a statute doesnt expressly provide for a private remedy P part of class for whose benefit the statute was enacted? Legislative intent to create/deny remedyexplicit/implicit? Consistency with underlying purpose of legislative scheme to imply remedy? COA traditionally relegated to state law/mainly a state concern?

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A state law private action which alleges a violation of a federal statute, arises under the laws of the US only if Congress intended to provide a federal remedy for the statutory violation.

o Osborne whether a federal question is a foundational ingredient (Test not really used now) o Well-pleaded complaint rule: determine whether the action arises under solely on the basis of what would be in a well-pleaded complaint (defenses would be there) Cant just anticipate a federal defense- may never come Louisville & Nashville R. Co. v. Mottley (1908): COA action must arise under Constitution, laws, or treaties of the US. It cannot be a defense. An anticipated federal defense is not part of the Ps cause of action and doesnt provide federal question jurisdiction.

o Not enough that plaintiff is asserting a state-created claim which requires interpretation of federal law (typically breach of contract in patent or copyright cases) o Mere fact that litigation is about federally-created property doesnt answer the question of whether the cause of action arises under (Harms v. Eliscu)- just because its about a copyright doesnt mean that the action involves a copyright doesnt mean that arises under- there was no copyright breach alleged. o Merrell Dow Pharmaceuticals v. Thomson : even though state laws may incorporate fed law, case is not a federal question, no federal jd Private right of action must be contemplated by federal statute or regulation for this to qualify as a claim arising under When a statute provides for a private cause of action, the right arises under federal law. Here, the court finds that there is no express or implied private right of action. The court holds that this isnt a

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cause of action arising under federal law; its a state tort action MD & Smith are distinguishable because the federal issue in the state-created cause of action was so substantial in Smith; it dealt with a Constitutional right.

o Smith v. Kansas City Tiitle & Trust Co. (1921): State law claim, but resolving the dispute required determining the application of federal lawPs right to relief depended on federal law. SCOTUS says it arises under US laws, and federal question subject matter jurisdiction applies even though COA doesnt state a federal action- because it implicates a federal interest Since it dealt with tax law, it had the potential to greatly affect the US economy/securities law, etc. Threshold constitutionality issue

o Moore v. Chesapeak & Ohio RY Co (1934): not a great chance of national significance, etc. P alleged no contributory negligence when his injury resulted from his employers violation of safety laws. He said there was an issue of whether a federal statute had been violated, and so should confer federal jurisdiction. SCOTUS holds that suit didnt arise under US law, and there was no fed question jurisdiction- contradicts Smith? Different than Smith because not questioning constitutionality- more like MD

o Grabble: when the fed question embedded in state COA contains a very significant question of fed law, this may warrant fed question jurisdiction. Have to look at nature of the fed interest at stake Merrell Dow doesnt create a bright line for this question. Natl interest in providing fed forum for tax litigation is sufficiently substantial to exercise fed question jurisdiction, wouldnt change division of labor between state and fed courts: no single rule for determining if fed interest substantial enough

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o Justification: Interest in ensuring uniform interpretation of federal statutes, special circumstances relating to extraterritorial effect of the statute warrant a federal forum -

No amount in controversy requirement Exclusive Federal Jurisdiction: Certain federal claims must go to the federal court: 1334: bankruptcy; 1337: commerce, antitrust; 1338:
patents, copyrights, trademarks; 1343: some civil rights; elective franchise; 1345/1346: US is a P/D

o Reason: national uniformity throughout the federal courts. Concurrent Federal Question Jurisdiction: Congress has given P the choice of going to a federal or state court- subject to the right of removal. Federal Employers Liability Act (FELA), certain civil rights cases.

DIVERSITY OF CITIZENSHIP 1332

1332 Codifies Diversity of Citizenship Jurisdiction Exceptions to diversity: Probate, Matrimonial : deeply imbedded state policy, expertness, competence Requirements: There must be COMPLETE diversity of citizenship Strawbridge v. Curtis (this is a statutory interpretation of judiciary act (precursor to 1332) it is not constitutional) o Diversity of Citizenship Everyone to the left of the V must be from a different state from everyone to the right of the V. One person can destroy diversity. o Minimal Diversity Exceptions: Interpleader- when someone has property (stake holder) that says its not theirs but multiple people claim it is their- each entitled to their day in court- says realistically claim is among the claimants and as long as you have one claimant from a different state diversity is satisfied

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Mass Disaster Statute 1369 Required to have 75 deaths in the same event (mass torts in the same event not like a Vioxx- people not event is dispersed) Class Action Fairness Act of 2005 Available when aggregate amount is exceeds 5 million and there is minimal diversity

Citizenship (you can reside in lot of places but youre a citizen of only one state) Determined on day of the institution of the action Normal Citizen of the US o Center of gravity- changes when a person moves with the intention of remaining there indefinitely o Jurisdiction under diversity if a citizen is suing an alien o Stateless person problem- US citizen but not domiciled in US cant sue or be sued under diversity o Considers aliens residents in the state where they are domicile (to restrict jurisdicition) Corporations: Have 2 citizenships, 1- where the corporation is incorporated, 2- principle place of business (nerve center = executive decisions, muscle test = plurality of its services, manufacturing, total activities test=center of gravity state where they are most affiliated) Unincorporated Associations cumulate the citizenship of all the members of the association Carden v. Arkoma o Law firms o Teamsters- national labor union- has a member from every state no diversity unless some form of alienage jurisdiction (not that horrible with labor management relations because normally falls within federal question SMJ)

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Representative Actions o Historic rule: that it was based on the representative not the represented o Congress overrode historical rule for actions involving children, incompetents, estates- in these categories tested in terms of the citizenship of the represented (deceased, child, incompetent) not the representative. o Class Actions & Share Holder Derivative Suits- determine citizenship through the eyes of the representative.

1359 Doesnt allow diversity that has been improperly or collusively made or joined to invoke the jurisdiction of a court- this deals with the manufacturing of diversity not the improper destruction of diversity

o Amount in Controversy Must exceed 75,000 Excluding: interest and cost including: punitive damages, probably statutory attorney fees

Good Faith burden: Court will accept Ps allegation of jurisdictional amount unless the court is convinced to a legal certainty that P cant recover the jurisdictional amount Hard to quantify: o Injunction: usually the cost of compliance o P &S indefinite damages o FR 11 Sanction Rule: lawyer has to make the judgment that it was in good faith

o Doesnt matter the amount you get in the end- filtration isnt perfect Aggregation

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Can aggregate any claims between a single P and a single D even if they have nothing to do with one another Cant add up the claims of multiple Ps against a D, or a single Ps claim against multiple Ds unless the claims are really joint claims and its a single indivisible harm (ex. Undivided interest claim) Class Action Fairness Act 1332D- Aggregate claims of class member $5,000,000. Minimal diversity. Exception only with a truly localized class action.

Purpose: Provide a neutral forum or a national forum where people from different states could litigate without fear of local biases and prejudices Reinforced by federal judges who have lifelong tenure, securities lets them escape local parochialisms

FEDERAL SUPPLEMENTAL JURISDICTION/PENDENCY

1367 ONLY applies to SMJdoesnt satisfy PJ or service of process Codified the seminal case United Mine Workers v. Gibbs Courts have discretionary power to hear jurisdictionally-insufficient state claims deriving from a common nucleus of operative facts in which there is a substantial federal issue 1367(a) (codifies Gibbs): grants supplemental jd over all claims that form part of the same case or controversy under Article III o Case or controversy embraces everything within a common nucleus of operative fact (CNOF) (some question here- If C&C is broader than T&O then all 13As are supplemental, or if T&O is broader possible some 13As arent supplemental) Diversity of Citizenship 1367(b): prohibited use of supplemental jd when the case is based solely on diversity jd, and the jurisdictionally insufficient claim is by a plaintiff against persons made a party under: o Rule o Rule o Rule o Rule 14: third-party defendants No pendant party jurisdiction 19 compulsory joinder- not if it destroys diversity 20: permissive 24: intervention

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o If defs counterclaim is compulsory under Rule 13a (same T&O), then court will allow ancillary jd over the counterclaim o If counterclaim is permissive under Rule 13b, it will not Discretionary 1367(c): grants district courts discretion to decline to exercise supplemental jd if: o State-based claim is novel and complex, or it is really the guts of the action o Federal question claim has been dismissed Ancillary jurisdiction can only be asserted by Ds not original Ps o Reason: Ds didnt get a forum choice, so they should have the procedural advantage of being able to counter claim, cross claim, and assert third-party claims even though there might not be a jurisdictional basis.

1367(d): period of limitations for 1367(a) claims (and any other claim in the same action that is voluntarily dismissed at same time as or after the dismissal of the claim under a) shall be tolled while claim is pending and 30 days after dismissal unless state law provides for longer period 1369: SMJ in Multiparty, Muliforum Litigation

Must establish original, subject matter jurisdiction before you can establish supplemental jurisdiction! CASE HISTORY UP TO 1367:

Old way: pendant and ancillary jurisdiction o Pendant: when P. appends a claim lacking an independent basis for fed SMJ jurisdiction to a claim possessing such a basis
o

Ancillary: when either P. or D. injects a claim lacking independent fed SMJ via joinder (counterclaim, cross-claim, 3rd party claim) that comes from same T&O as original claim that does have fed SMJ

United Mine Workers v. Gibbs: Gibbs brought suit against UMW and alleged (1) claim under 303 (completely federal) and (2) common law tort claim (state law) [pendent claim jd] o Prior to this case the state claim would have to be tried separately, in state court (no federal issue and no diversity of citizenship to move it to fed court) o Court overruled Constitution to allow Gibbs to try both claims together in federal court

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o Impact supplemental jd granted when there is a common nucleus of operative fact and cases would normally be triable together (i.e. not murder + divorce) CNOF abandons T&O (transaction and occurrence test created by Rule 13a) CNOF is about trying like things together o Establishes when we shouldnt allow pendant jd. When jury likely to confuse + 1367C reasons Aldinger v. Howard: court refuses to bring in an additional party under pendent jurisdiction when there is no independent basis of federal jurisdiction (party couldnt come in on fed question jd) o Represents the first pullback from Gibbs Owen Equipment & Erection Co v. Kroger: SC refuses to allow pendent jurisdiction for additional parties (here under D compulsory counterclaim), says independent jd is required for new parties [pendent party jd] o Convenience of litigants and judicial economy cannot justify extension of supplemental jd over non-diverse defendants Finley v. US: ruling that ultimately led to enactment of 1367 o Finley brought partial diversity suit (original claim was under federal statute, claim was amended to include state-law tort claims) o SCOUS: P had to choosepursue state-law claims in state court or pursue claim against US in fed court said that all our cases have held that a grant of jurisdiction over claims involving particular parties does not itself confer jd over additional claims by or against different parties said they know this isnt the right solutioninvited Congress to rule otherwise- Within one year , 1367 was enacted

Public Policy Reasons for Supplementary Jurisdiction:

Pro: Efficiency (we have everyone here), Fairness to either party so they dont have to fight on two fronts, Dont dissuade people from exercising a federal right by allowing them to combine their claims only in state court. Against: Supplemental jurisdiction expands the scope of the federal courts at the expense of federalism and state courts. It also allows clever lawyers to use supplemental jurisdiction as a facade

2. PERSONAL JURSIDCITION

1. Is there a traditional basis of jurisdiction? 2. Does the long-arm statute apply?

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3. Is the long-arm statute constitutional?

Service of process on a person that has been enticed into a jurisdiction by fraud/deceit is not proper and will be set aside Tickle v. Barton Defendant can consent to PJ: expressly agreeing to submit to the court, performing acts that constitute a waiver, failing to assert a defense for lack of jurisdiction PJ is under the due process clause not Article 3 and can be waived like any individual right

TRADITIONAL BASES OF PERSONAL JURISDICITION

1. Territoriality
-

Pennoyer v. Neff (1877) Collateral action, property was not attached

(because he didnt own it at the time of suit- if in rem property has to be there at the beginning), notification was made by publication when court did not have PJ over Neff.

A state has complete, total, territorial power within its boundaries. A state is completely helpless outside of its borders. Asserting PJ on a D outside of the state would violate the sovereignty of other states.

Shaffer v. Burnham (1990) reaffirms Pennoyer territoriality: NY in California on a transitory visit to see his kids, wife asserts CA jurisdiction o Moral transitory territoriality is sufficient, no requirement for minimum contacts, fair play/substantial justice- premised on traditional values of state sovereignty. Public policy: make clear line, definition; ease of application; virtue of not putting in lots of time, energy, money to figure it out; Scalia doesnt buy into Brennan notion-making each case different, lots of subjectivity

Grace v. MacArthur- cant control which states you fly over, so presence isnt voluntary and you cant be served while going over those states.

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Able to assert jurisdiction even if D is there on a transitory basis Exception: If you are not in a state voluntarily (plane emergency landing, kidnapping)

2. Domicile If a place is your domicile they can grab you wherever you are

3. Agency Corporate agent, partnership agent, individual citizens agent -> jurisdiction carriers

4. Express Consent Forum selection clauses are forms of consent to jurisdiction. They are enforceable but they must pass judicial scrutiny for fundamental fairness (Brennen and Carnival Cruise, Szuhkent).
-

Carnival Cruise Lines v. Shute Ds purchased tickets to go on a cruise

through a travel agent in WA. The payment was forwarded to the Carnival headquarters in FL. The ticket included a forum selection clause (FL). Off the coast of Mexico, Mrs. S fell and injured herself. The Shutes filed suit in WA. SCOTUS enforces forum-selection clause, holding that the cruise had a special interest in limiting potential forum, because it eliminated confusion and costs.

o two policies for forum selection clauses: Lessens the defendants burden of exposure to litigation in many states, and it conserves judicial resources by not needing to determine jurisdiction. Predictability & convenience.
-

Bremmen v. Zapata (1972): Zapata, (TX Corporation) contracted with a

German corporation to tow rig from LA to Italy. Contained a forum-selection clause (London). The rig was damages and towed to FL. Zapata sued in FL but SCOTUS enforced the clause.

o Forum selection clause upheld for aliens

5. Implied Consent
-

Hesss v. Pawloski PA motorists strikes a MA resident in MA. Court upholds

MA statute saying that the PA resident by driving on the MA public roads consented to appoint a state official as agent to receive process in state

You are implicitly consenting to appointing the registrar of Motor Vehicles as an agent- legal fiction recognizing the state

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has the power to exercise its police powers to adjudicate what happens on its highways to make a non-resident motorist responsible and vulnerable if they run down a citizen. State regulatory interest, sovereignty Treated citizens/non-citizens the same. Extends to airplanes, watercraft, motor-bikes, stock fraud o Demonstrated PJ not as simple as territoriality and sovereignty, sophisticated issue. 6. Waiver You have jurisdiction if you dont assert a jurisdictional defense

7. Doing Business/Corporate Presence When a corporation is doing business in a state it is in effect present there- you cant assert jurisdiction even if it is a foreign corporation -> form of territoriality

Continuous and systematic contact with the forum, COA arises from those contacts Jurisdiction

Continuous and systematic contact with the forum, COA doesnt arise from those contacts Jurisdiction

Isolated and sporadic contact with the forum, COA arises from those contacts Jurisdiction depending on circumstances Hess/Pawloski Gray Specific Jurisdiction

International Shoe Burger King Specific Jurisdiction

Perkins/Benguet General Jurisdiction

Isolated or sporadic contact with the forum, COA doesnt arise from those contacts No Jurisdiction (no fair play and substantial justice) Hanson Helicopteros

SPECIFIC JURISDICITION: LONG ARM STATUTES

1. Does the Long Arm Statute Apply?

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Long Arm Statute/Single Act Statutes: Allows state to assert jurisdiction over a person who isnt physically present in the state at the time of service. Most say that if a cause of action arises out of the commission of a tortious act in this state, insuring a risk in this state, contracting to apply services in this state, or some modern long arm statutes also include marriage issues. Critical Element: the cause of action MUST be related to the forum state. Designated act HAS to occur in the forum state, or its effects must be felt in the forum state. A long arm jurisdiction is specific jurisdictionit arises out of a particular connection between the out-of-state D and the forum.

2 Types of Long Arm Statutes: o Long arm statutes that reach the Constitutional Limit: Rhode Island Here, questions of Constitutionality arise.

o Enumerated Long Arm Statutes NY: exception precludes application in defamation cases. Since it doesnt reach the Constitutional limit, you determine first whether the statute applies to the case (statutory construction). Then, if it applies, move to Constitutional issue.

Test Strategy: Statutory Construction/Interpretation apply facts of the case, try to argue that more than one subdivision of the long arm statute reaches D. 2. Is the application of the Long Arm Statute constitutional?

International Shoe (1945) WA wanted to tax the Shoe, which was shipping shoes into the state (principle place of business MO, incorporated in DE, distribution around country but not in WA, no offices in WA, no Ks for sale or purchase in WA). The corporation had developed a fiction that it wasnt really selling shoes there deals in MO, shipping shoes to people who somehow had bought them in MO though they lived in WA. They rented hotel rooms and

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showed one shoe to the customer, and the company claimed it didnt have employees in that state, just independent salespeople. o Minimum contacts with the forum state foreseeability, equaling fair play and substantial justice o Systematic and continuous contact with the state, Enjoying the privileges of operating within a state gives rise to obligations o Reasonable method of notification Gives jurisdiction and satisfies due process requirement

Gray v. American Radiator (1961) P (IL citizen) bought a radiator from D in IL. A faulty valve manufactured by Titan Valve (OH) was incorporated into the radiator in PA. The exploding water heater then injured Grey, who brought suit against both companies in IL. Titan dismissedlack of subject matter jurisdiction. SC of IL found that jurisdiction over American Radiator proper under long arm statute, because that company benefited from the protection of the laws of IL. There exists a reasonable inference that its business would result in substantial use/consumption in IL. o (1) was tortious act committed in forum state? (2) if yes, is the assertion of jd constitutional? Court says tortious act occurs where the consequences of the act are felt (this isnt the inevitable readingcan be viewed either way) Constitutionality determined based on Intl Shoe and 14th Amend requirement

Stream of Commerce/Purposeful-Volitional Availment

-

McGee (1957) no office or agent in CA; insurance company knew it was contacting CA (volitional), probably getting $$ from premiums from the insured from CA and knew of it entered in contract in CA o jd over out-of-state D exists because D took actions that were purposefully directed towards the forum state (knowingly entered into a transaction with a citizen of a forum state) Denckla (1958) PA lady established a DE trust, and moved to FL, where she continued her relationship with trust and then dies. Dispute among heirs as to trust and estate division. FL says it has jurisdiction over the estate of the deceased, but SCOTUS says that FL doesnt have jurisdiction over DE trust- trust didnt voluntarily do

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business in/with FL. Different from McGee where insurance company entered into the K in CA- here began in DE. Dont want to base it on whether they bailed b/c want stable economic relationships o contacts must be volitional, cognitive, and beneficial , cant just be maintaining responsibility as a trustee o no minimum contacts not fair play, substantial justice to hale it into ct there o concern not just for convenience, also for territorial restrictions
-

WWVW v. Woodson The Robinson family (NY) bought an Audi from

Seaway motors (NY). In the course of their move to AZ, the family is hit in the rear in OK, resulting in the explosion of their car and serious injuries. Robinsons sue VW AG (GM Manufacturer); VW North America (importer); WWV (distributor selling cars in NY, NJ, CT); Seaway Motors (retailer) in OK state court, invoking OK long arm statute, because that was the state in which the tortious act occurred. Seaway and WWV moved to dismiss for lack of subject matter jurisdiction.

o Foreseeability isnt enough o Ds conduct/connection with the forum state must be such that he would reasonably expect to be hauled into court there. No purposeful availment, no minimum contacts equaling fair play and substantial justice. Different from American Radiator where the product was injected into the stream of commerce- here the car was taken unilaterally by the consumer- Hanson unilateral activity of those who claim some relationship with a non-resident defendant cannot satisfy the requirement of contact with the forum state. Importance of predictability allowing company to structure itself Didnt gain from the forum state Marginal revenues dont justify jurisdiction

o Affirmation of minimum contacts requirement, but also allows other relevant factors to tip the balance:

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Forum states interest in adjudicating the dispute (McGee) Ps interest in obtaining convenient, effective relief (Hess) Interstate judicial systems interest in obtaining the most efficient resolution of controversy. States shared interest in furthering social policy.

o DISSENT (BRENNAN): Since the product was a car it seems reasonable to expect it might be carried to different states.

Burger King (1985) BK (FL corp), issued licenses to MI residents for a 20 yr

franchise K. They defaulted on payments, and BK sued in fed ct in FL, invoking FL long arm statute. MI franchisee brings motion to dismiss for lack of personal jurisdiction. SCOTUS finds for BK

Ds purposefully and volitionally established minimum contacts with the forum state-contractual agreement for 20 years (clear, beneficial, extensive relationship), Michiganders agreed to be bound by rules established by BK in Florida, K had a choice of law provision (not determinative- but indicator of foreseeability, shouldnt be ignored unless procured by fraud), reasonable, purposeful availment

o plaintiffs burden to show contacts, then burden shifts to def to show lack of reasonableness (forum non)
o

DISSENT: contract of adhesion-disparity in bargaining power, far from home, hard to call their witnesses, expensive-they thought they were dealing with the local office

Stream of Commerce- Plus?

-

Asahi (1987): Mans wife killed in a motor cycle accident in CA when tire
blows. Sues Cheng Shin (Taiwanese tire manufacturer) and Asahi (Japanese tire valve company). Valve made in Japanshipped to Taiwan, incorporated into tire by Cheng Shinincorporated into bike by Honda. Settlement reached with man, so then lawsuit remains between Asian companies. They decide the minimum contacts PLUS is satisfied here, but leave the law pretty murky for us.

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Is a manufacturer who puts their product into the stream of commerce automatically jurisdictionally vulnerable wherever the product alights? o 4 Justices: Stream of Commerce is enough- vulnerable in California regardless of whether they solicited business there because their product was showing up there in large numbers o 4 Justices: Stream of Commerce Plus- purposeful availment (advertise, distributor there, service products there, agents) o Result: Minimum contacts do not make exercise of PJ consistent with fair plan and substantial justice (min interest of forum state/min P interest/state policy)

Result: Dont know what rule iso WV SC: in Asbestos case said stream of commerce was enough, and either way ads + distributor thats taking your product to the US and putting it into products is probably stream of commerce plus.

GENERAL JURISDICTION

Defendants continuous and systematic association with the forum makes such an intense relationship that its not unfair or unreasonable to make the defendant stand and defend himself in the forum over disputes that have nothing to do with the forum. Contacts standard is tougher than specific or long-arm jurisdiction. Long arm statutes are irrelevant because they have to do with specific jurisdiction- events in the forum FinAir Case: found that there was continuous and systematic conduct in the forum that would allow the assertion of jurisdiction, even if they didnt book flights there- and just gave information Perkins v. Benguet- acknowledge that it was a Philippians company and that the COA occurred in the Philippians, but said that it was OK to sue in Ohio on a non-Ohio event because of the companys continuous and systematic contact with the forum.

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Helicopteros although there were negotiations that took place in Texas, pilot training in Texas (just part of purchase), funs funneled through Texas (unilateral), one CEO trip, the crash occurred in South America and there werent enough continuous and systematic contacts to give Texas general jurisdiction. o Look at the nature of contacts to determine if they constitute continuous and systematic contact

INTERNET CONTACTS

SCOUS hasnt considered the issue of PJ based on internet contactsstate courts have faced the issue on their own o Courts now lean towards the Calder Test, or a combination of Zippo and Calder

Interactive email exchange/phone calls viewed as more evidence of availment than one unsolicited call- forwarded mail not enough. Factors in assessing contact with forum: level of interactivity, effect on the forum state, kind of harm alleged Asahi- Stream of Commerce plus would be very important here Cybersnell: need something more than just maintenance of a website to show purposeful activities directed at the forum Zippo the likelihood that personal jurisdiction can be constitutionally exercised is directly proportional to the nature and quality of commercial activity that an entity conducts over the Internet o Sliding scale test: Active websites where businesses carry out transactions with residents of the forum state: jurisdiction would be proper Passive websites where information is just available: rarely grounds for asserting PJ Interactive websites (middle) that permit exchange of information: Some courts have found that an interactive

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website alone is enough to establish minimum contacts; others require additional non-internet activity in the forum, regardless of whether the activity is related to the underlying claim. Finally, some courts have required additional conduct in the forum that is related to the plaintiffs cause of action. Calder effects test (1) commits an intentional act (2) expressly aimed at the forum state (3) causes harm the brunt of which D knows is likely to be suffered in the forum state Pebble Beach o Didnt expressly aim his conduct at California. In Calder test need more than a foreseeable effect. There was no specific action- no individualized targeting. Internet domain name and passive website alone are not enough. Didnt purposefully avail himself to the privileges of conducting activities in the forum (dont take the benefits and protections of the law)

JURISDICTION BASED ON PROPERTY

In Rem Jurisdiction (when the underlying dispute has to do with the property) Could be physical property, or non-physical property like bank accounts, security accounts Pennoyer v. Neff because a state is all powerful within its boundaries it can adjudicate title and interests in any piece of property within its boundaries no matter who the claimants are. Judgments do not get full faith and credit, jurisdiction power is exhausted when the property was exhausted- cant take the judgment to another state and get it enforced beyond the value of the property. Conn. v. Doehr (1991): its now considered a violation of due process to attach property w/o prior notice or a hearing, unless there are extraordinary circumstances; 5 Justices also suggested that there should be a bond-posting requirement or other security in addition to a hearing

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o Court used a three-part balancing test developed in Mathews v. Eldridge: (1) consideration of the private interest that will be affected by the prejudgment measure; (2) an examination of the risk of erroneous deprivation; and (3) principle attention to the interest of the party seeking the prejudgment remedy, with due regard for any ancillary interest the government may have in providing the procedure or forgoing the added burden of providing greater protections Quasi-In Rem When the underlying dispute has nothing to do with the property, and the dispute may not have anything to do with the forum state extracting jurisdiction only because we have your property Has to pass the Shoe Test o Justification: tie/affiliation with the jurisdiction, benefiting from states regulatory structure, foreseeability- know that you have responsibilities in the forum Physical property or non-physical property like bank accounts, security accounts Originally validated in Pennoyer. Inherent fairness that was originally tolerated even though it was inconsistent with in personam jurisdiction side. Harris v. Balk (1905): P was a NC merchant who owed D 180$. D was a
retailer who owed Epstein (MD merchant) 344$. P went to MD and Epstein instituted garnishee action to attach the debt Harris owed Balk. Harris consented to pay Epstein the 180$ he owed Balk. Epstein has here basically sued P quasi in rem. D tried to sue P for his 180$, but SCOTUS says P paid his debt.

o extension of quasi in rem jd to debts. The debt follows the debtor.

-

Shaffer v. Heitner (1977) shareholder derivative suit by shareholder that

lived in NY, trying to impose liability in from Oregon judgment, against directors/officers who had shares that were in Delaware (because Delaware says that the shares are where the company is incorporated not where the owners are) who otherwise didnt have any contacts with Delaware

o Says that ALL assertions of jurisdiction must be tested against Shoe and progeny- need minimum contacts, fair play, substantial justice for a quasi in rem case. o Probably (not entirely clear) overrules Harris b/c of req.

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o No real effect on in rem, because they would already likely satisfy Shoe progeny requirements o Under this, to have quasi in rem you would have to also reach the level of in personam If someone is in a state thats long arm statute goes to the constitutional limits, no reason to go quasi in rem because there is no full faith and credit around the country for your judgment. In a state where the long arm statute doesnt go to the constitutional limits, quasi in rem may give you jurisdiction over things that the long arm doesnt (like defamation in NY context). So quasi in rem isnt completely dead, just mortally wounded When property is worth more than the claimstrategic decision bugging by holding his assets

FEDERAL COURT JURISDICTION-FR 4K

Typically use the long arm statute of the forum state in which they are sitting. 4K1A o Always in diversity cases o Federal Question cases when the statute doesnt have a jurisdictional provision in it If it is a federal question case, and there is long arm statute -> not sure Belief that you can use the constitutional standard (Shoe/Denkla/Woodson) But those are 14th amendment cases- should we follow the 5th amendment due process standardthere is none for federal court jurisdiction Some say use Shoe/Denkla/Woods with the US-> but US is large so may have the fair play and

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substantial justice inquiry (some indication in Asahi) 4K1B 100 mile radius around the court house for parties joined under rule 14 (3rd Party) or 19 (joinder) (NYC can get people in NJ) 4K1C operated by federal statute If the state long arm isnt long enough and D isnt subject to the jurisdiction is constitutionally OK o 4K2A Response to Omni, in federal question case o Have to prove that D isnt subject to jurisdiction in any state o NO SITUATION IN DIVERSITY WHERE A FEDERAL COURT CAN REACH FARTHER THAN A COMPARABLE STATE COURT o Due process clause- Shoe/Hanson/Denkla
CHALLENGING JURISDICTION

Threshold issue- must be made in the answer If you make a jurisdictional objection under 12b2, proceed to merits, and lose you can reassert the jurisdiction question you dont waive based on proceedings Once youve raised the jurisdiction issue you cant collaterally attack based on that

3. NOTICE AND OPPORTUNITY TO BE HEARD

D must be given notice that they are being served, and must be given the opportunity to defend herself. Notice Question: As a practical decision is the notice reasonably calculated under the circumstances to give notice? Forms of process which by themselves provide notice: o In-hand delivery of summons, delivery by registered mail or certified mail, ordinary mail, service of process on a person

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living with D/agent who we believe will transmit the service to D o Problematic Form: Publication Mullane Standard: Constitution requires that notice be reasonably calculated, under the circumstances, to give actual notice, and must afford a reasonable time for those interested to appear. What matters is the appropriateness, not whether or not def actually got notice High constitutional standard Publication is not reasonably calculated to give actual notice Sometimes a class though is so large that there isnt an alternative (rare situation)- publication is acceptable when beneficiaries arent known Groups to be identified and provided notice appropriately: o Known beneficiaries (address known) direct notice (by mail in this case) is required o Unknown beneficiaries (changed address, beneficiary died) use due diligence to find class members; if you cant then publication may be okayreasonable effort to give notice needed o Contingent interests: future beneficiaries get no notice, because not currently vested Nail and Mail Ex.

Opportunity to be Heard Due process requires that D be given a reasonable opportunity to develop his case Rule 12a and most state statutes give the D 20 days after service to respond Fuentes / Sniadach/ Goldberg: o Decision to issue a writ of attachment/garnishment/replevin/repossession must be made by a judge

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o Judge must make the decision based on a full presentation by the creditor as to why the creditor believes it has the right to immediate possession Fact-based statement of right to the debt/property made under oath

o Creditor has to post a bond to protect the debtor in case of wrongful attachment or replevin (but bond by itself isnt enough because it only shows strength in their own belief) o Debtor must have an immediate right to a hearing on the merits o Result -> you can seize but not dispose of it until the debtor can present o Actions arent for important public interest, instead just serving a private interest, private advantage o The following interest must be taken into account when attaching property (balancing test): (1) debtors property interest, (2) risk of erroneous deprivation, (3) interest of the party seeking remedy Connecticut v. Doehr- current thinking that due process is a balancing test

4. SERVICE OF PROCESS

Was service of process executed in the manner prescribed by the service of process rule?

MECHANICS OF SERVICE OF PROCESS Must follow the rules of the state, or Rule 4 Reasonably calculated under the circumstances to succeed (Mullane) No fraud/trickery to get individual into state to serve process but you can flush them out o Tickle v. Barton (1956): judgment against D was overturned because the Ps lawyer induced the D into the state for the purposes of serving process on him by fraud/trickery. No personal jurisdiction no service.

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Wyman v. Newhouse (1937): Affair between P and D, man

fraudulently induced by lover to come to FL by convincing him she loved him and wanted to say goodbye and that she was leaving to see her dying mother. His arrival at the airport was met by a deputy sheriff who served him w process in a suit for $500,000. The man returned to NY (state citizen) and was advised by his atty to ignore the summons. Collateral attack. He did so, default judgment was entered against him, 2 nd circuit held the

Judgment was void bc he was induced to come to FL through fraud.

If youre voluntarily in state, you are susceptible to service of process. o State ex rel Sivnksty v. Duffield (1952): while on vacation in WVA, P hit and injured 2 kids while driving. While in jail awaiting trial because he couldnt post bond, a civil suit was brought against him. The WVA ct held that he was subject to service of process. He didnt come into the state specifically to defend against a criminal charge; he was there voluntarily; though this argument seems specious. If he could have afforded bail, he wouldnt have been subject to the suit.

Parties are, at times, immunized from service of process, in the interests of the court: Witnesses, parties, attys who come to a state to participate in a lawsuit; Ps who voluntarily enters state to bring an action; Ds who voluntarily submit to other adjudications there.

METHODS OF SERVICE: Personal Delivery: o Natural personsin hand at house or abode o Rule 4h: Artificial entitiesofficer, manager, or general agent, or anyone apptd by law by the entity Service by Mail (substituted service)certified mail o Rule 4d: letter sent with a copy of the complaint and the waiver. D can waive process, but if he chooses not to waive/doesnt respond, he will be served in person and charged for the cost of hand delivery. Service on a Person Residing in Ds dwelling (substituted service) o Rule 4e2: service must be left with a person of suitable age and discretion who resides at the dwelling.

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Delivery to an agent Authorized by Appt: (Substituted service) Rule 4e2 o Rule 4d1: Service can be provided to an agent if there is evidence he has been authorized by the D. Claims by an agent that he has the authority to receive process or the fact that an agent actually accepts process is not enough to bind the defendant; there must be evidence that the defendant himself intended to confer such authority upon the agent Szukhent: : P (NY corp) sued Ds (MI residents) in NY federal
court, because they defaulted on farm equipment lease. Lease designated Florence Weinberg (NY) to accept service of process. Ds werent acquainted w agent. Agent delivered 2 copies of summons/complaint to Ds with letter stating that documents had been served on her. Also notified D. SCOTUS says that acceptance and transmittal of notice was sufficient for agency to be valid.

party can appoint an agent contractually even when he doesnt personally know that agent, as long as the agent promptly accepts and transmits notice (even if it doesnt seem like they are required to).

Publication: o Rule 4 doesnt authorize service by publication But rule 4e1 says federal court can use the service rules in state where it sits or where service is affected. State statutes provide that service may be made by publication when the P has demonstrated that there are no other reasonable ways to serve process. Rarely acceptable.

Service on an artificial entity o Rule 4h: authorizes service to an officer, managing agent or general agent when D is a corporation, partnership, unincorporated association or whatever that is subject to suit under a common name.

Class Actions o Sometimes publication + actual notice to a sample of class members suffices.

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International Service o Have to follow the service of process rules in the country where the person you are trying to serve is otherwise you wont get a judgment enforced there o Consular treaties- specifies a way of serving process bilaterally o Multinational agreements on service of process- Hague Convention o If not part of the agreement: long process (class notes P. 26)

RETURN OF SERVICE Must file a return, disclosing enough facts to show that D has actually been served and given notice to appear in court. Ordinarily this is necessary for the trial court to consclude that it has jurisdiction. STATUTE OF LIMITATION AND SERVICE Federal Court: o Rule 3: in fed court, filing of complaint = commencement of the action o Rule 4m: requires fed ct to dismiss an action when the D hasnt been served within 120 days of the filing of the complaint (if P fails to show a good cause for not completing service within that time) o Rule 6: allows P to request extra time to serve summons/complaint o Rule 12b5: motion to dismiss for insufficiency of service of process Considered waived if not made in motion or responsive pleading!

State Court: when cause of action is based on state law o Varies; in some states, cause of action is commenced by service of process.

TERRITORIAL LIMITS OF SERVICERule 4k1 Diversity/federal question cases: service of process may be made o Within the territorial limits of the state in which the district court sits

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o Anywhere else permitted by state law of the state where the court sits Rule 4k1b: service of process permitted within a 100 mile radius of the district court, but only applies where out-of-state parties brought in as additional parties to an already pending action. o Valid parties are 3rd party Ds and indispensable parties (Joined under Rule 14 or Rule 19) Subject to federal interpleader jurisdiction under 1335 Congress can provide for nationwide service in some cases. Rule 4k1A allows a federal court to piggyback on a state long arm statuteprocess of a federal court may thus be the same as the state in which it is sitting. Rule 4k2: limited federal long arm provision (1990s). Only applies when individual is not subject to general jurisdiction in any state and no long arm statutes apply. Very rare.

5. VENUE 1391

Venue deals with the allocation of a case within a court system that has jurisdiction over that case- Jurisdiction over parties must be established first Venue challenge must be raised particularly early by def, otherwise it is waived Rule 12b3 o Venue is waivable because it is an issue of allocation/convenience/administration, not a constitutional issue Rules of venue are particular to a system- each has a different set of rules

Three Questions to Determine Proper Venue 1. Does the court have venue under the statutory structure (each state is different)? 2. If the court has venue, can the court transfer it? 3. If the court has venue, are there situations where we should transfer it anyway forum non conveniens?

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QUESTION 1. Does the court have venue under the statutory structure? 1. Venue in Federal Actions 1391 which court shall try the action? a. 1391(a) Diversity cases may be brought only in federal court i. Where any D resides (not the same as citizenship) if all defendants reside in the same state ii. Where substantial portion of events occurred or where substantial part of the property is situated iii. If and only if neither of the first 2 apply, then venue exists in a judicial district in which the defendant is subject to PJ at the time the action is commenced b. 1391(b) Fed Question & Mixed Diversity/Fed Question cases may be brought only in federal court i. Where any D resides (not the same as citizenship- can reside in more than one state) if all defendants reside in the same state ii. Where substantial portion of the events giving rise to the complaint occurred, or where substantial part of the property that is the subject of the action is situated iii. If and only if neither of the first 2 apply, then venue exists in any judicial district in which the def may be found (usually means wherever PJ exists at time action is commenced) c. Corporations and Aliens for purpose of venue i. Corporations reside in any district where subject to PJ at the start of the action 1391(c) ii. Aliens may be sued in any district 1391(d-f) d. Removal: 1441 (a) says that when a case is removed to federal court, the fed court encompasses the place where the state action is pending, so its irrelevant that the fed court wouldnt have been a place of proper venue originally e. Local action: in cases involving land, the action must be brought in the state in which the land is located (Livingston v. Jefferson)- never codified in statue; if property is located in more than one state, venue is proper in both 1392 i. Based on the now outdated reasons: of land being very parochial, difficult to know the law of different places, sovereignty tied up so you want that court to decide ii. Problem defining what is a local action not hard when its the title of land, destruction of things on land (burning of crops/structures) are also probably local actions- but its more difficult with trespass, or stealing of natural resources iii. Transitory action: one in which the court will try the case even though the suit relates to land outside the state

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(Reasor-Hill) if a local action cant be brought where the property is because of lack of PJ over the def, the action may be brought in the state where the def resides. This represents a minority view- local action still lives. Really here youre talking about a products liability action, not actually talking about land. 2. State Courts Factors state courts consider in deciding whether to dismiss for forum non conveniens a. Whether the plaintiff is a state residentif so, plaintiff has stronger claim to have case heard in home state b. Whether witnesses and sources of proof are more available in different state or county c. Whether forums own state laws will govern the action QUESTION 2: If the court has venue, can the court transfer it? Have to have PJ in the Transfer court- Ask all questions again! 1. 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 a. Motion to transfer almost invariably made by def, and burden is on movant to show why b. Transferee forum must be one in which the original claim could have been brought (Hoffman v. Blaski) c. The law of the transferor court must apply i. Generally only applicable to diversity cases; consensus against applying to fed question cases 2. 1407 Allows cases with the same CNOF to be transferred to a single court for consolidated pre-trial hearings a. Cases must be returned to transferor court for trials, unless get parties consent or invoke 1404(a) QUESTION 3: Situations where we should transfer it anyway forum non conveniens? 1. Generally forum non conveniens exists because the transfer is impossible a. Cant transfer state-to-state, federal-to-state, US to foreign court 2. Forum non conveniens works when it really makes no sense to litigate in the given court 3. There is a presumption in favor of plaintiffs forum choice, so forum non motions and transfers are rare a. Declaring forum non conveniens results in an actual dismissal or action, so plaintiff must initiate again

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b. Because of this harsh outcome, court may grant motion on condition(s): i. Def identifies an alternative forum ii. Defs consent to jurisdiction in the other forum, waiving statute of limitations in the other forum 4. Piper Aircraft: plaintiff cant defeat a motion to dismiss merely by showing that the substantive law of the alternative forum is less favorable to him than that of the current forum. Here accident, evidence, documents, plane, etc all in Scotland. Court used forum non con even though Ds were Americans a. Court accepts the possibility that changing forum may affect the outcome, but says need to weigh that possibility with other interests: i. Private interests convenience of litigants and litigation elements (witnesses, documents, etc), access to proof, enforceability of judgment if one is obtained, advantages/obstacles to a fair trial, does it oppress/harass D by enforcing an unnecessary expense or trouble to pursuing the remedy ii. Public interests which court/venue is really interested in adjudicating the case, administrative problems of cases being piled on, jury duty burden, importance of local issues being solved locally, difficulty of applying foreign law b. See greater use of the doctrine- it is a check on federal long arm, excessive use of jurisdictional principles- reflects that US is a judicial magnet c. Reluctance to say that another countrys legal system is inadequate- only in extreme situations like we dont want to send holocaust victims back to Germany. d. Remember that unlike transfer which just moves the action to another court, with forum non the action has to be dismissed and P must initiate again- statute of limitations may have run out, have to get PJ over the D in the second forum. Since the motion is made by the D, usually court says that they arent going to grant unless (1) theres an alternative forum (2) D waives SOL defenses that may have accrued since the first action (3) agree to stand as a D in the alternative forum (consent to jurisdiction) - 1407 Multidistrict Litigation allows cases with the same common nucleus of operative facts to be transferred to a single court for consolidated pre-trial hearings. Cases are returned to the transferor court for trials, unless you can get parties consent or invoke 1404a. o Appointed by CJ of the US

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o May give it to a court that had earlier jurisdiction or may have improper venue but done pursuant to statute o Lexecon: says that you can only stay there if everyone consents- something that never happens.
6. REMOVAL 1441

Removal is a one-way street, no removal from federal state court EVERY REMOVAL QUESTION IS ALSO A SMJ QUESTION You can only remove an action that could have been brought in a federal court originally o Well-pleaded complaint rule applies fully on removal o Cannot add up the claim and counter-claim for removal purposes because you could not originate the action in the federal court.

Only original D can remove o district court has the discretion to keep it, or send it back whatever makes sense o Congressionally-mandated right to use a federal forum o Only way you can achieve right is to give D the right to veto Ps choice in a state forum and choose a federal forum o Original D

Federal Question action is removable without regard to the citizenship of the parties (in state or out of state D can remove) Diversity of Citizenship D can only remove if they are out-of-stater + complete diversity +amount in controversy

1367(c) allows the court to remand a claim if state claims predominate You can only transfer after you remove. Removal is considered waived if the D takes a substantial defensive action (counterclaims P) before filing for removal.

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Removal must be agreed to by all defendants. Exception mass disaster, class action can be sought by any D b/c they SHOULD go to fed. Removal is time limited & based on complaint. Have 30 days from when basis for removal appears in the case. Basis for removal is complaint so that, in accordance with Mottley, well-pleaded complaint rule- when removal is b/c of federal question, fed ? must be in complaint. Certain kinds of actions, by statute, cannot be removed. Under FELA, it would destroy the convenience for the workers if you can remove the case.

1441(C) allows someone to remove on a federal question + on an otherwise unremovable state matter-like a form of supplemental jurisdiction- discretion of the DC to determine the issues or remand o Protective Jurisdiction conferred by congress to allow judge to decide- otherwise P could try to pollute the whole claim with one purely state claim. Not clear how separate and independent you have to be Question about whether there is a gap between supplemental claim (T&O) and separate and independentif there is then there would be a gap cases that couldnt come into federal court. constitutionality issue because allows things that wouldnt be allowed under 1367, can congress create a zone of protective jurisdiction to protect center stuff? 1441(c) does NOT apply to diversity! Suits involving supp claims that derive from a CNOF DONT fall within 1441c since arent separate/ independent. Provides for removal/ remand only where federal question claims are independent from state law claims with which they are joined in the complaint. (ie1367 claims)

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7. WAIVER OF DEFENSES

SJ is NEVER Waived- parties cant consent to it, and court can raise it on their own motion Rule 12h3 o Mottley court responsibility o Reason: not a personal matter, its a systematic issue that is constitutionally based in the power of the courts.

PJ, Notice, Service of Process, Venue all waivable Rule 12h1, 12h2 o All threshold matters, have to assert them by a pre-answer motion or the answer or they are waived. Rule 12b o Consolidation of Defenses: if youre going to make a preanswer motion can only make on involving all of them, and you have to consolidate. o If you omit a threshold defense in your pre-answer motion, cant put them in your answer Rule 12g, Rule 12h

If you make a motion for lack of PJ, notice, process, venue- and you lose- you go forward on the merits and know that the issue is preserved for appeal on the final judgment.

ERIE DOCTRINE
1789 Rules Decision Act establish lower federal court system, promulgate rules Old Rule Swift v. Tyson Federal courts sitting in diversity had to follow state statutes and constitutions, but did not need to follow state common law (the unwritten law) Story wanted federal courts could pursue general common law, so commercial transactions would be uniform across the country THIS DIDNT HAPPEN advent of railroads tore apart the simplistic notion of federal common law, there was forum shopping Black and White Taxi Cab

Rules Enabling Act-2072

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USSC shall have power to prescribe general rules of practice and procedure and rules of evidence for district courts and courts of appeal These 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

10th Amendment: The powers not delegated to the US by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people

Erie = supremacy of state substantive law York = outcome-determination Byrd = weight of state policy v. weight of federal policy Hanna = collision/conflict of fed and state laws- Federal Rule of Civil Procedure on Point

Erie v. Tompkins In a diversity action, a federal court applies the substantive law of the forum state. o Overruled Swift v. Tyson o Inequitable administration of the laws; having 2 parties of common law would create forum shopping. o Unconstitutional (10th Amendment Reserved Powers clause): nothing in Art II grants federal courts the power to generate federal common law- substantive law must come from forum state law Substantive Law: system of rules and duties between people and institutions in society. There is a difference between congress exploiting an enumerated power, and the court creating their own power that isnt authorized by the constitution

Guaranty Trust v. York Was NY free to apply historic equity principles that
had been applied in federal courts- known as latches- soft discretionary doctrine or were they bound to NY statute of limitations- with hard automatically applied notions

o Outcome determination, against forum shopping that would provide inequitable administration of the law. Federal court is just another court of the state when sitting in diversity jurisdiction (reconceptualization of federal courts).

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o No reference to constitutional Erie basis o Here the action was 100% determinative, Problem: anything can be outcome determinative, reduced significance/stature of the federal courts, goes against uniform application of federal rules of civil procedure o Erie could be construed as just limited to substantive rights, but here something that isnt clearly substantive is still having to apply state law (statute of limitations- substantive in that it terminates the right to sue, procedural in defining a time frame) 1949 Trilogoy Cases (How far the court took the outcome det. Notion) o Woods registration requirement for business to bring suit- SC says it falls under outcome determination of Guaranty o Cohen SC says although FR 23.1 doesnt require a bond, state law does- in a diversity case you have to post a bond. Outcome determination because need the bond to get passed the front door. Substantive right because the bond is liability creating
o

Ragan(wrongful death- in Kansas the action isnt commenced by filing

the complaint but by serving D, federal action is commenced under FR3 by filing the complaint- Not commenced by serving D within the statutory period)

Commencement rule (not SOL like Guaranty) Use Kansas law, not commenced within period barred

Byrd v. Blue Ridge injured in a work environment- issue of whether it was

covered under workers comp. in the NC state courts would be decided by a judge, under 7th amendment normally be decided by a federal jury

o Form/Mode is synonymous with procedural- so procedural that it doesnt go under the Guaranty umbrella

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o When there are countervailing federal considerations, like the federal commitment to jury trial/distribution of power between a federal judge and a federal jury, this countervailing federal consideration should be balanced against the significance of the state issue o Strong federal policy (influence of the 7th amendment + distribution of function/modality) v. weak state policy (like administrative convenience here) Apply Federal Rule (balance) Erie = No federal Interest, Guaranty= closer to federal interest but trumped by outcome determination

o Not clearly outcome determinative- judge/jury go either way, only potential for OD o Not a clear situation of forum shopping- may be some form of motivation but not really that big o Also consider inequitable administration of the law

Hanna v. Plumer wrongful death action, Mass required in-hand personal

delivery service to the executor within one year of the death, Federal Rule 4 allowed substituted service- once litigation happened time barred from Mass state court

o Approach 1: Arent violating Erie or York because there is no outcome determination differential- at the critical moment both options were open so there wasnt forum shopping Argument that it was outcome determinative: state strong interest in process serving, also not simply a process provision because also SOL concern for tolling. State doesnt look at it.

2: Relevance of federal rule to see balanced federal interest - Application of Byrd principle of Countervailing Federal Consideration

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o Federal rules of civil procedure represent federal policy, promulgated by SC and subject to congressional veto- almost statute- under the supremacy clause of the constitution federal law trumps state law. o Cant displace a federal rule regardless of how trivial it is unless it is unconstitutional would go against the rule making power o The federal rule must be a rule of procedure- and be valid 1692 (Rules Enabling Act) of the Judicial Code congress has only given court the power to promulgate rules of procedure that dont abridge, enlarge, modify a substantive right o Test 1: What do you do if there is no federal rule, but federal practices issue vs. state issue? Go for the Twin Aims of Erie! Inequitable admin of the laws Ex Ante Perspective: Prevention of forum shopping /outcome determination Could assume same rules apply to Federal Rules of Evidence (should be easier b/c statute)

2: what do you do if theres a FRCP in conflict with a state practice? Is the rule applicable/on point? (Ragan and Walker) Is the federal rule constitutional? (of course) Is the rule a valid exercise of congressional authority?

2072 Rules Enabling Act Test for validity: abridge, enlarge or modify a substantive state right If btwn substance and procedure, is it arguably procedural? If yes, the FRCP applies

SUBSEQUENT APPLICATION

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Walker v. Armco Steel o Test: For the federal rule trump it has to be sufficiently broad and applicable Federal Rule must be valid & constitutional

o FR 3, although it does declare a commencement principle, is not a commencement principle in measuring the statute of limitations. Rule 3 measures commencement forward- when responsive pleading must be served, when summary judgment may be made, not intended for the tolling of state statutes of limitations. Could be a question as to whether statute of limitations would violate the Rules Enabling Act, or have a forumshopping/outcome determination issue under York

Stewart v. Ricoh: court says this is an easy casethere is a fed statute, and fed law is supreme o Hanna analysis: Is the statute sufficiently broad to control the issue before the court? Does the statute represent a valid exercise of Congress authority under Constitution? o See tension between Erie/York and Byrd/Hanna just because there is a federal statute, court shouldnt be blind to very valid state interest (here issue is about state substantive contract law) Gasperini v. Center for Humanities NY law 5501(c) moves from
shocks conscious to a more rigorous deviates materially standard, for appellate review of jury awards.

o York analysis leads to the determination that ignoring the judgment award leads to substantial variation between federal and state courts and hence would lead to outcome determination. o The court decides that the federal interest (7th amendment reexamination, which is compelling because this is reexamination of a suit at common law, which the 7th amendment makes specific reference to) and the state interest (the material deviates jury award standard.)

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o The solution is applying the state appellate standard at the federal trial level. o Structural mismatch. 59 (erroneous result shouldnt let verdict stand) would appear to control. Debate over whether it applies or not- Scalia says that it is sufficiently broad to directly collide. Ginsburg says it doesnt apply, it being 59, so she can apply the state appellate standard at the federal level. o The case is an interesting analytical tool and it raises a possibility of Hanna and Byrd analysis. Where there appears to be a collision do we simple apply a Hanna analysis and knock out the state rule. OR do we evoke visions of Byrd and try to accommodate and reconcile the two different systems where we can (is this the spirit of federalism)?

ASCERTAINING STATE LAW: HOW SHOULD A FEDERAL COURT DETERMINE STATE LAW?

In theory, fed courts are bound by the highest court of the state in which they sit; also bound by intermediate courts of appeal o Fed judges do at times apply laws of an adjacent state/state whose jurisprudence is compatible with the forum state o Most states have enacted certification statutes, allowing fed courts to certify over certain questions to a state court o Erie Guess o Abstention

Klaxon v. Stentor: in order to promote desired uniform application of substantive law within a state, federal courts must apply conflicts-of-law rules of states in which they sit (includes choice of law- doesnt make own conflict rules). o Reaffirmed by Day and Zimmerman case

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o Federal courts applying state law typically attempt to determine how the highest court in the state would hold in a given case/what law the highest state court would apply Mason v. American Emery Wheel Works: a state courts ruling on an issue neednt be followed by a fed court if that ruling has lost its vitality o Fed court here rules that a state could would overrule its own precedent o This case shows how different judges have different opinions on how/what law applied Whether applying static law or trying to foresee future holdings Whether fed judge is trying to behave like a trial judge or an appellate judge

McKenna v. Ortho: fed court holds that a state court would reach a given decision based on the actions of the state legislature

INVERSE ERIE WHEN THERE IS CONCURRENT FEDERAL JURISDICITION

o When you have a federal substantive right that is being adjudicated in a state court (like when there is concurrent jurisdiction on a federally created substantive right like under FELA) a state court should enforce a federal substantive right and act like another federal court. Dice Inverse Erie/Byrd- State court applying federal court Supremacy clause rules here (not Erie)- if congress wrote it into the statute we dont care what the state says. Here there is a strong federal interest (unlike Byrd with weak state interest), and right of jury trial is more important than right not to have a jury trial. Brown v. Western Railroad court couldnt apply the GA rule that said pleadings are construed against the pleader when it was adjudicating a FELA case, instead

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it had to follow the federal rule that pleadings are liberally construed.
SPECIFIC FEDERAL COMMON LAW

Only applies in certain circumstances; creates federal SMJ (so when create something, you can sue on it); if it applies in state ct, must apply the fed standard (so states must be deferential); Congress is free to change common law via statute Takes power from the supremacy doctrine and trumps state law. Made up by judges _ congress (activist passivist divide) 1. Substantial federal interest a.Federal question cases b. Clearfield Trust: common law controls when government has strong interest. When there is no federal compelling interest, and dispute is between private parties, state law will control. i. Treasury of US: courts can establish fed common law because of strong interest in the conditions/terms of commercial paper 2. Federal statutes/regulations: a.When a question exists whether there is a private cause of action for a federal statute or a federal regulation. Meryl Dow b. Difference between Smith where constitutionality of federal statute made a strong federal interest, Dow where federal interest was lower (federal law for state purpose. c. Contractors defense for federal government 3. Unforseen gaps in federal statute (implied federal law) a.Most commonly a lack of limitations b.Courts have gravitated towards absorbing the most analogous statue of limitations from the state in which it sits- but the result is a federal statute of limitations by federal common law no longer a state statute of limitations. c. In securities field until recently no statute of limitations. SC decided to make one up because absorbing is hard here and want one that is nationally uniform- congress overrode them by creating a statutory provision.

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4. Tradition/necessity/special competence a.Foreign relations, admiralty (Aircraft isnt under here because of tradition)

PLEADING

First phase of the pre-trial process jurisdiction has been chosen, court picked, body of law chosen 1. Service must normally occur within 120 days of filing of complaint 2. Answer must be served within 20 days of service of complaint a. If def is out of state (served via long arm), the time to answer is the state rule (usually longer) b. If def makes Rule 12 motion against complaint and loses, def has 10 days after denial to answer c. If def requests waiver and plaintiff grants, def has 60 days from date that request for waiver was sent 3. Reply to counterclaim plaintiff must serve his reply within 20 days after service of the answer/counterclaim OVERVIEW: History of Pleading o Common Law pleading: built on specific, technical rules, form of action, went into trial blind no discovery or motion practice. Once filed it couldnt be amended. Demurrer Difference o Code pleading: High degree of specificity, fact pleading three functions notice giving, fact revelation, issue formulation o Modern pleading: Fed Rules greatly simplified structure, has only the complaint and the answer. Only goal to give notice- use discovery/joinder/motion practice to cover other goals. Basic Documents o Complaint: initial pleading in a lawsuit, filed by plaintiff o Answer: Ds response, states defenses to each claim and admits or denies each count o Reply: required if D asserts counterclaim; P can also obtain court order to allow reply. Otherwise just 2 tiers. Low pleading threshold: Doesnt require COA

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Federal courts construe pleadings liberally reading in every conceivable inference

FR 12bc: P has failed to state a claim upon which relief may be granted. Motion must be denied if under any construction of the pleading, the pleading might be read to indicate that the pleader is entitled to relief Example of Pleading under the Codes Gillespie v. Good Year (1963) court asks for a plain and concise statement of the facts constituting a cause of action o Pleading had to include: what occurred, where, who did what, relationship between D and P, circumstances. o Wants enough so def can identify the matter in the suit and prepare/protect himself o Wants enough so court can apply law to the facts stating legal conclusions isnt enough o Example of Fact pleading. Problems: what is fact? Cant plead evidence/conclusions- becomes all semantics. Screens out people that are incapable of giving you the facts. Example of access barrier to make sure that you dont bring frivolous law suits (perspective issue).

Modern Pleading under the Federal Rules Rule 8 very low pleading thresholddont have to plead facts or a cause of action o Rule 8a1 must give statement of why this particular courtSMJ o Rule 8a2 pleading should be a short, concise statement of facts No mention of asserting COA, or facts- do have to show entitlement to relief o Rule 8a3 prayer for relief, where you state what you want (ad damnum) Dioguardi v. Durning: court says the pleading is about notice, and showing that plaintiff is entitled to relief. Complaint doesnt have to be well written o Whether P can prove his claims is different from whether he has pled them adequately o Rule 8a2 (reinforced by 12b6 motion, asking has plaintiff stated a claim?) claim = entitled to relief Conley v. Gibson: reaffirms simplicity of pleading and Rule 8a2 o Cant dismiss under 12b6 unless legal certainty that there is no basis for recovery

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o Only need to give notice, and grounds- facts are later supplement in discovery Garcia v. Hilton Hotels: def makes 12e motion for a more definitive statement o Court grants, says it is unreasonable to require D to prepare a responsive pleading without a more definitive statement of the pertinent facts Questionable decision 12e requires statement to be so vague and ambiguous that a party cannot reasonably be required to frame a responsive pleading Generally 12e is a narrow rule with a limited scope of applicationjust asks can you reasonably prepare a response? Could be judge trying to demonstrate G couldnt prove it. Rule 12E (more definite statement) and 12F (motion to strike) are alternatives to 12b6 which makes the whole thing go away strategy delay/attrition but awareness settlement value increases Gillespie, Dioguardi show how a different level of particularity is required by different courts Swierkiewicz No heighted pleading standard in civil rights claims against employers or municipalities, respectively Twombley (2007) Contrast to Conley. Says that a claim must be plausible. o You need to show enough factual matter to support an inference of plausibility. Plausibility ill-defined. Doesn't need detailed factual allegations but obligation to provide grounds/entitlement of relief needs more than labels, conclusions, and a formulistic recitation of the cause of action. More than speculative, not just facts to create suspicion.

o It may represent a progression of disposition from trial to summary judgment to pleading. o Complaints traditionally read in light of the plaintiff, although some state systems do the opposite. (Brown v. Western Alabama RY). o Some might argue that an insufficient complaint can be remedied with limited discovery, but Twombley explicitly rejects this notion. Discusses the unmanageability and cost of discovery- great cost to D, increases settlement value o Dissent: judge can manage /phase discovery. Probability standard is irreconcilable with rule 8. It is a class divider.

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Should at least force an answer, doesnt mean wed have to go through all of discovery. Cost of discovery only shows mistrust in their role ARM: role of 12b6 isnt to figure what is the most plausible, under this opinion anything that rises to the unclear level of plausibility survives. Dont know if this is limited to antitrust cases/universal, signal that Conley not enough. Now we have Twombley motions- affects entire system
HEIGHTENED PLEADING STANDARDS

o Reason: historically disfavored action, but this is the backbone to most securities cases o Many states in defamation actions you have to plead the actual defamatory words Rule 9 creates different allocations of pleading and proof burden based on claim type Rule 9b requires fraud circumstances to be stated explicitly, but malice/intent generally o Concern about frivolous litigation especially with claims that are easy to assert in our classically disfavored actions, mere allegation of fraud damages reputation. Defense of completed transactions (dont want fraud to unravel) + want to promote transactions. o P must plead facts: Who committed the fraud? When was the fraud committed? Where was the fraud committed? Where are the documents? How as the fraud committed? o Denny v. Carey: P didnt give Da lot of information; D files 12b6 motion, claiming that Rule 9b places a rigorous burden of pleading on the plaintiff

Court found that the complaint satisfied 9b 9b only requires slightly more notice than would be forthcoming under Rule 8the requirement is met when there is sufficient identification of the circumstances constituting fraud so that def can prepare an adequate answer to the allegations Contrast in Denny v. Barber court took opposite view in similar circumstances, upping requirement saying you

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have to say who/what/when/where more common now b/c of more fraud claims being asserted. Private Litigation Reform Act (PLSRA) 1995: Creates a super-high pleading burden for securities reform. Sneaky provision- no discovery until motions to dismiss have been decided- ones ability to smoke out complex frauds depends on discovery. Have to do private discovery. Example of controlling substance through procedure Rule 9c once plaintiff avers generally that all conditions precedent have been performed or have occurred, burden shifts to def to find and identify any conditions precedent that plaintiff hasnt performed Rule 9g when items of special damage are claimed, they shall be stated specifically o Special damages are those not foreseeable under such a claim as it is brought o Swierkiewicz v. Sorema: no heightened pleading rules8a2 should be uniformly applied unless specifically under Rule 9 Rule 8e2 Alternative/Hypothetical Pleading o Unlike common law requirements, dont have to combine in one statement can set forth either in one count/defense or in separate counts/defenses o i.e. I didnt borrow your pot; when I borrowed your pot it was already damaged; I returned your pot o Dura Pharmaceuticals Latest rule in this particular issue- may be heightened by Twombley Allows alternative and inconsistent pleadingswhich was prohibited under the Code Rule 9g Special Damages o Ziervogel v. Royal Packing: Dargued that certain special damages P claimed during trial werent expressly stated in the complaint, and shouldnt be considered Court holds that non-obvious physical evidence has to be stated in pleading Close decisionreasonably people could disagree; court probably making an example to show states that they need to follow Rule 9g Rule 8a3 claim shall include a demand for judgment for the relief that plaintiff seeks o Bail v. Cunningham:

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o o Rule o o

Pursuant to rule 54c D can receive more than in pleadings 8a3 really just has a notice giving function Ad danum clause is anachronistic Situation here the difference was relatively small- not resource determinative. Reasons for having clause at all: (1) Default Ceiling (2) evidence for jurisdictional amount (3) Contingent Liability (4) Determines resource investment. Some states have eliminated Subject to Rule 11 you can put in any number you want 54c demand for judgment Judgment by default shall not be different in kind or exceed amount prayed for in demand Except as in default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in pleadings

RESPONDING TO THE COMPLAINT- THE ANSWER

In theory, the answer is supposed to come in on the heels of the complaint, but standard defense technique is to make a lot of motions and delay answering Typical answer has 1, 2 or 3 sections in it: o Part 1 Response to the complaint responds allegation by allegation Admission General Denial: deny each and every allegation (including Jurisdiction) 8b3 Specific Denial: deny specific allegations of particular paragraph or count in complaint 8b3 Qualified Denial: deny a particular portion or a particular allegation Denial of knowledge of information: say you dont have enough info to form a belief = denial Rule 8b5 Denial based on information and belief : say reasonably believe allegation is false If you fail to deny and response is required Admitted Rule 8b6 o Part 2 Affirmative defenses Modern rules: can respond inconsistently if you dont have the full story Rule 8c lists 19 affirmative defenses (contributory negligence, duress, estoppel, etc) and any other matter constituting an avoidance or affirmative defense have to plead anything like

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o Part

other 19, anything that might surprise other side or they are waived. Better to err on pleading it, includes unavoidable accident/act of god 3 Defendants complaints- When D becomes Aggressor Counter-claims Cross-claims 3rd party claims

Rule 8b Defenses; Forms of denials Denials shall fairly meet the substance of the averments denied o Zielinski v. Philadelphia Piers: D filed a general denial Denial was ineffective under 8b requires that D deny everything in good faith- deceptive pleading doesnt meet the obligation Here D should have filed a more specific answer, would have warned P that he sued the wrong D o Rule 11 is about penalties if D denies something in bad faith Rule 8c Affirmative Defenses What fits under the residuary clause? What constitutes surprise? o Rule 8c was included to ensure there is no surprise as to what defenses will be used Likely includes any defense that rests on facts particularly within defs knowledge

MOTIONS AGAINST THE COMPLAINT

Defenses against the validity of complaintincluded either in answer or separate motion o Rule 12b1 lack of subject matter jurisdiction o Rule 12b2 lack of personal jurisdiction o Rule 12b3 improper venue o Rule 12b4 insufficiency of process o Rule 12b5 insufficiency of service of process o Rule 12b6 failure to state a claim upon which relief may be granted Must establish that no recovery is possible under any legal theory Usually made before def files answerafter can make a 12c motion for judgment on pleadings o Rule 12b7 failure to join a necessary party (under Rule 19)

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o Motion for a more definite statement def may make motion under 12e if complaint is so vague or ambiguous that def cannot reasonably be required to frame a response pleading o Motion to strike if plaintiff has included redundant, immaterial, impertinent or scandalous material in complaint, def may move under 12f to have material stricken from pleading Amendment o If complaint dismissed, plaintiff will almost always have the opportunity to amend the complaint Plaintiff may automatically amend if motion made before def files answer Rule 15a o If 12b motion successful after filing answer, plaintiff may amend with courts permission (likely)

AMENDMENTS OF PLEADING- FEDERAL RULE 19

Historically you couldnt amend pleadings, all systems now have liberal amendment policies especially the Federal courts

Rule 15 first judicial postulate; liberal rules to ensure claims are decided on merits rather than technicalities If you learn of an affirmative defense during the discovery period you have to go back and amend

15a Amendments (pre-trial) o 15a1: Allowed to amend once without permission/motion/court order Judgment that this is a preliminary point, no prejudice no reason to waste time. Usually used up quickly o 15a2: During pre-trial process, amendments are done only with leave of court or consent of adverse party Leave shall be freely given when justice requiresleave things to discretion of court Unless there is a very strong reason to deny leave to amend (like you should have known/prejudice D/eve of trial/deep in discovery), court will allow it o Liberal approach to amendmentby and large, you ask and you get 15b Amendments to Conform to the Evidence (at trial)

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o If evidence inconsistent with pleadings is introduced and the other party doesnt object, the pleadings are automatically viewed as having been amended o If the evidence is objected to, court may allow the pleadings to be amended and shall do so freely Burden is on objecting party to show that they will be prejudiced if amendment is allowed o The deeper into the case, the more resistance towards amendment- still though commitment to having the case fully decided on the motion o 15b2 If issue not raised by pleadings is tried by parties express or implied consent, itll be treated like it was raised in pleadings. A party can move even after judgment to amend the pleading to have them conform with evidence. Failure to amend wont affect trial outcome. (may amend because of res judicata issueappeals) .

RELATION BACK OF AMENDMENTS

-

Claims Code System: allowed to relate back the new material if it arises out of the same COA of the original claim. o COA- writ system, difficult/vague restrictive 15c Relation-Back of Amendments (after statute of limitations has run out- relating back would allow you to date it back before limitation, justice served by allowing) o Not about whether to permit amendment; the issue is about whether it should be subject to the statute of limitations. o 15c1: relation-back is permitted by the law that provides the applicable statute of limitations. Federal question case: the law that provides the statute of limitations is federal law. So you look at federal common law. Diversity case: the federal court should look to the forum state to see what law governs (Erie/York).

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o Rule 15c2: claim or defense asserted in the amended plea arose out of the conduct, transaction, or occurrence set forth in the original plea (T&O test). With the institution of the original action D is put on notice that the T or O is being called into question, so notice has been given in a timely fashion. It is in the interest of justice that P be allowed to challenge a T or O through all different applicable legal theories. o Rule 15c3: amendment changes the party against whom the claim is asserted and satisfies following conditions: Must arise out of the same T&O or conduct as prior claim Party cant be prejudiced in maintaining a defense; they have to know about the action. Must be served within 120 days of filing the complaint. Correct D must have known, or should have known, that the suit was instituted and that he was intended party. Essential the party has to receive notice. Its tricky. Worthington v. Wilson: P sued unnamed police officers, amended complaint 115 days later to include their names. The D moved to dismiss on grounds that the amended complaint violated the statute of limitations. Articulates the 15c3 standard. Disallows relating back because of mistake standard. Amendments to Pleadings and Erie Problems o Majority of jurisdictions use the FRCP, but some states dont use them, and some states dont use relation back at all. Some use relation back for claims but not parties Erie problems.
o

Can you bring a claim that fits perfectly under 15c2, but youre in a state that allows relation back? Under Hanna, there is a federal rule of procedure that deals directly with the issue. Rule 15(c) speaks directly to statute of limitations But, it may be outcome determinative under Guaranty You could argue that the rule is invalid in this context because it enlarges a substantive right, namely the temporal characteristic of the claims a Rules Enabling Act problem It is not possible to accommodate both the federal and state rules (Gasperini)

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o There are inconsistent court of appeals decision as to whether this is an Erie problem or a Hanna problem o Under 15(c)(3) you run into the same problem. You can run into a situation in which a party cannot be added under 15(c)(3) but could be added under a more liberal state rule. Or, suppose the reverse you are in a state with no relation back of parties o Testing trick cant relate back to something that was dead when the original action was instituted

Erie Considerations: with 15c1 and 15c2 relation back is permitted under forum state law of T&O under 15c2. Believe that Hanna says that federal rule trumps state practice. o But you could argue that relation back violates the Rule Enabling Act and is therefore invalid because it affects a substantive right (length of applicable statute of limitation- not a fit subject for rule making so Hanna doesnt apply)

SANCTIONS

Lawyers signature on the papers (pleadings, motions, etc) is a certification that it is not being presented for an improper purpose (to harass, cause unnecessary delays, or needless cost, not frivolous). Warranty that contentions have evidentiary support and arent fabricated. And in denial, that there is evidence to support and reasonably based on information and belief Rule 11 Sanctions requires lawyer to sign/certify o Rule 11 requires signature/certification by atty. o Sanctions deter, dont punish. o Court often uses non-monetary sanctions. admonish on the calendar; some judges write an opinion about how bad the document is and sends it to West for publication (of course, clients dont read these), or the court will order the document distributed to every member of the firm, or the court will say to the offending lawyer

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that they have to go to high school and teach a civics class, or give $10,000 to the courts library o Sanctions are discretionary not mandatory o Safe Harbor Provision: 21 days to withdraw a paper that the other objects to. During that period, no sanctions may be imposed. o . Continuous obligation to monitor continued viability (not just based on what you thought at the time you filed).

Surowitz v. Hilton Hotels: ultimately saying that you dont have to be rich or smart to suecan sue on a document you dont understand, can sue without understanding but just because you know you were wronged o Rule 23.1 requires Ps verification in a derivative action; here plaintiff didnt verify suit o SC held that 23.1 is a limited rule, not designed to allow courts to dismiss when charges of fraud are based on reasonably belief and careful investigation, but P simply doesnt understand the legalisms

JOINDER OF CLAIMS

PERMISSIVE JOINDER OF CLAIMS- WHAT CLAIMS MAY A P JOIN?

JOINDER OF CLAIMS (Rule 18) Federal Courts Since Rule 18 permits any claims to be joined, joinder is proper. State Court

If state X follows the federal rule on claim joinder, any claims may be joined by a plaintiff, and therefore joinder is proper. If state X follows the more traditional rule of demanding that claims be transitionally related to be joined, then, on the facts of the problem given me, since all the claims emanate from a single auto accident/ airplane crash/ contract, the transaction and occurrence requirement is satisfied and joinder of claims is proper.

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T&O Used to be the policy under Codes, still the policy in some states

Rule 18: Party asserting claim (P for claim/CC/CC) for relief may join, either as independent or alternate claims, as many claims as he has against the opposing partyno T&O requirement o This is permissive, not compulsory making it mandatory might encourage litigation where there isnt any, would require D to adjudicate in a court they didnt choose. Secretly compulsory in the sense that res judicata (for same T&O) o Still have to make sure that you have SMJ (Rule 82- rules dont effect SMJ) o For diversity single P, single D you can aggregate the claims to get amount in controversy. Rule 42A - If P has lots of claims, and tries to bring them all separately under the judge can consolidate them (on motion or on their own) if they involve a CQ of law or fact o You can consolidate more broadly than you can join because you dont need T&O or series of T&O Rule 42b - If claims are so divergent that things dont work efficiently or prejudice is created, we can segment out the pieces and court can order separate trials (bifurcation, etc) to avoid the bias/confusion of trying matters together (represents safety valve to the 18 giant intake) o Overall Enormous trial court discretion because interlocutory.

PERMISSIVE JOINDER OF PARTIES- RULE 20

Exam (2 Sentences) The standard for permissive joinder of parties is CQ and T&O. Since the complaint alleges that all of the defendants were involved in the conspiracy, there is a CQ of conspiracy and a single T&O the formation of the conspiracy. Universal Test o T&O: any parties whose claims (P) or whose potential liability (D) stem from the same T&O, or a series of T&Os. Remember that 13A Compulsory Counter Claim is based on a unitary T&O not a series- so permissive joinder is larger than CCC.

o CQ of law of fact which ties parties together (not necessarily evidence). Rule 20 = claims arise out of the same T or O + common question (tying all parties together) o Virtually guaranteed that if there is T&O, there will also be CQ

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o Deals with transactions, not causes of actionso standard isnt CNOF Works for joinder of plaintiffs as well as joinder of defendants o Judgment that its better to open the door wide than keep it partially closedbetter to try like things together for judicial efficiency o If joining the permissive party would create prejudice, the judge is free to not join them. o Ability to join is good for the D, because you get a more expansive preclusion effect.

Rule 20, under 1367b no supplemental jurisdiction in diversity cases.

COMPULSORY JOINDER OF PARTIES

Question 1: Is there someone out there who should be joined? o Rule 19a Necessary Parties without whom that action should not proceed/needed for a just adjudication/who should be joined if possible o person shall be joined as a party if: 19a1a outsiders absence prevents granting complete relief to those already involved: If without the outsider you cant grant relief to the parties in the candy shop. Example: Specific Performance, Subdivision of Property, Distribution of Estate/Insurance policy 19a1b outsider will be prejudiced, his rights will be impaired or impeded, if he isnt joined: If you dont get the outsider in, the outsiders rights will be prejudiced. Example: rights to limited funds 19a1bii: leave an existing party subject to substantial risk of incurring inconsistent obligations, multiple obligation o Remember that joint tortfeasors arent compulsory parties- P has the choice to pick and choose among joint tortfeasors. Absent joint tortfeasors, almost assume that they should be joined, and try to figure it out. If the party should be joined (subject to Rule 19a) Can the court join him- Do you have PJ and SMJ? o Party may be joined under 19a only if court can serve him/get PJ over him, and bringing him in wont destroy diversity (SMJ) o 19a is both a party question and a jurisdiction question (SMJ and PJ) If court should join him but cant, what can they do? o Rule 19b determination by court when joinder isnt feasible

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o Court has to decide is this person absolutely essential to the action? Can you proceed without him? 12b7 recognizes a motion to dismiss for failure to join an indispensable party o Modern day courts dont want to dismiss because then no one gets relief. So they dont want to declare a party indispensible Certain issues you cant avoid it: like partitioning land

o 19b is an attempt to avoid dismissals under 12b7 judge must determine if theres anything he can do to move forward, and at least give relief to the people already involved- Invokes the tradition of the equity judgedo what you can, take a guess at missing partys claim Try to figure out claimants share and put it in escrow to protect the outsider. Demonstrates you dont have to dismiss for indispensability. i.e. if there are 3 people involved and one is MIA, maybe assume that persons claim is for 25%, and give each person 25%if the person materializes and is actually owed more or less, judge can adjust

12B Defense- Failure to join a party under Rule 19 equals dismissalthreshold issue that can produce dismissal.

COUNTER CLAIMS

Rule 13a Compulsory Counterclaim any claim arising out of the T&O that is the subject matter of the opposing partys claim (logical connectionnormally temporal) o If D brings counterclaim, P is required to bring compulsory counterclaims of his own, if they are transactionally related o If either party fails to assert a compulsory counterclaim, he waives his right to assert it later o Reason: efficiency and economy, evidentiary overlap because theyre from the same T&O o Supplemental Jurisdiction: 1367: CNOF, same case & controversy even if claim lacks diversity or lacks amount in controversy you can still bring it under courts supplemental jurisdiction (remember that we dont know if there is a perfect correlation between CNOF and T&O- before 1367 there was the belief that all compulsory counter claims were ancillary under

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Gibbs- maybe it isnt and not all 13As are supplemental- lingering feeling) o No reference to series, so somewhat narrower than permissive joinder of parties Clear that you cant bring an unasserted compulsory CC in a federal court, probably true that you cant bring it in a state court because the state court would give effect to the federal principle (especially if they had their own CC rule). States arent bound to comity. Not stopped by Res Judicata because separate causes of action.

Rule 13b Permissive Counterclaim everything else that isnt compulsory. Can assert any claim you have - A pleading may state as a counterclaim any claim against an opposing party not arising out of the T& O that is the subject matter of the opposing partys claim o New parties may be brought into suit as part of a counterclaim provided there is jurisdiction o No Supplemental jurisdiction under 1367

CROSS CLAIMS- FEDERAL RULE 13G

Co parties can Cross-Claim against party at the same level of the action/same tier (dont go across the V) Cross-claims must arise out of the T or O that is the subject matter of the original action or a counterclaim therein o Tolerate broad counterclaims because they are about the same fightbut cross-claims are limited because dont want the crossclaims to disrupt the original lawsuit Cross-claims are thus completely permissive and carry a T&O requirement o However, once get cross-claim under 13g, then obliged by 13a compulsory counterclaim to file any compulsory counterclaims against cross-claiming party o Do we allow permissive counter claims in response to cross claims? Supplemental Jurisdiction: Same T&O, even if there is no diversity of citizenship, or no amount in controversy, it can be supplemental to the base claim- after base claim has original jurisdiction all have supplemental. (T&O CNOF Issue)

THIRD PARTY CLAIMS - FEDERAL RULE 14

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Impleader/Action for Contribution/Indemnity Rule doesnt specifically say T&O says actions over but all 3rd party claims must emanate from the underlying claim logical relationship, series of T&Os, etc No limit to 3rd Party Practice The third party defendant can assert any rule 12 defense or rule 13 counter claims, and may assert any cross claim against other third party defendants. Also once D brings in a third party D, original P can amend and claim directly against the third party Once a new party is brought in under 14, have to raise any compulsory counter claims under 13a against third party P and original P if it passes the same T&O test Unlike counterclaim and cross-claim, in effect brings a new action o Bringing in a new party raises all traditional PJ and SMJ issues, service of process, notice and opportunity to be heard o If plaintiff cant get supplemental jd, then has to take claim against 3rd party to state court due to 1367(b) Owen v. Kroger: If you wouldnt allow plaintiff to sue Owen directly, shouldnt allow her to do that indirectly by virtue of the 3rd party defense practice procedure. There was no supplemental jurisdiction because adding destroyed diversity. Or just wait until you go somewhere where you can get SMJ and PJ Any party can move to strike a third party from being added to the original claim, or move to separate the trial if it is a separate T & O 1367b- no supplemental jurisdiction over claims made by original P against people who are parties under Rule 14 o There is supplemental jurisdiction, same case and controversy, and would have supplemental if there was a compulsory counterclaim between the parties.

INTERVENTION

Outsider says he belongs in the case because his interest is not being protected Always a concern that the outsider will muck it up for those already involved Division between permissive intervention and invention as a right o Rule 24a: applicant has a right to intervene when either

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US statute confers an unconditional right to intervene, or Disposition of action may impair or impede applicants ability to protect his own interest Must demonstrate that interest is not adequately represented by existing parties This rule is the other side of Rule 19apersons that must be joined when feasible Property interest usually treated as a matter of right o Rule 24b: applicant may intervene when US statute confers a conditional right to intervene, or Applicants claim or defense and main action have a question of law or fact in common This rule sounds like other side of Rule 20a permissive joinerthough only common question required here, whereas 20a requires T&O and CQ Much less likely to permit if doing so destroys diversity Efficiency/Economy in including- also binds the intervener No supplemental jurisdiction for permissive intervention but if there is a common T & O, then maybe it will be allowed. Intervener either joins the P, D, or takes a different position entirely. Rationale: efficiency, economy 24(c): Procedure. Serve a motion to intervene on the parties under Rule 5. Motion shall state the grounds and shall be accompanied by a pleading setting forth a claim/defense for which intervention is sought.

IMPLEADER- RULE 22, 1357

Joinder designed to protect stakeholder (person holding property) that has property that multiple parties are trying to claim from inconsistent claims on property. A way to bring all the claimants together in a single action in order to avoid multiple litigations and inconsistency of results. Used because res judicata doesnt prohibit subsequent claimants to sue for same property Proscribed in both a federal statute and a federal rule o 1357: $500 requirement, nationwide jurisdiction (maybe global), creates form of federal jd that only requires minimal diversity of citizenship o Rule 22: $75K requirement, no federal national jurisdiction (must use long-arms), requires complete diversity of citizenship New York Life Insurance v. Dunlevy. Personal JUR required over all claimants.

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o leaves state-court interpleader actions open to only suits where residents are involved. Most state courts dont have long-arm broad enough to cover interpleader claimants b/c they arent usually doing business in the state. o Same thing for federal, cant usually use long-arm statute. Generally governed by FRCP 4, serving process to get PJ. BUT, Congress implemented National Process for interpleader, so can serve them unless they are outside US. Lundeen v. Cordner Example: MOMA owns Guernica, Picasso dies, they give it to the court because otherwise all manner of folk will sue them for ownership. Then they become a P in the action to try and get Guernica. Procedure: Stakeholder applies for an order to interplead which is reviewed by the court. Once it is granted, stakeholder can withdraw and let claimants fight it out or remain in the suit to contest certain claims as another claimant.

CLASS ACTION

Designed for efficiency and economy, to avoid confusion of too many parties in court Public interest class actions born with Brown v. BOE In 1960s was vehicle for an extraordinary expansion of federal substantive lawcivil rights, consumer, environmental, safety, etc Current debates: limits of class actions have we stretched it too far?

CLASS ACTION PROCEDURE:

Historically: Every member of class must have claim in excess of $75K for federal court o Appears to go against plain language and intent of 1367, but held in Zahn and upheld in Abbott o Unlike diversity and venue, which are only required of the class representative(s) o SMJ under federal question if it is antitrust, securities, employment discrimination 1332-Diversity Statute: Class Action Fairness Act Any class action (or mass action) in which the amt. in controversy is $5 million or more (any significant class action) now goes to federal court on the basis of

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minimal diversity of citizenship; Completely different from Strawbridge (complete diversity) o The court shall decline jurisdiction is more than 2/3 of all plaintiffs and the primary defendants are non-diverse. The court may decline where 1/3 to 2/3 of all plaintiffs and the primary defendants are non-diverse. Remember, this is diversity of the class, not the representative (so representative can be non-diverse from D). o Diversity provision: matched by a removal provision; in the event that P tried to bring it in a state court, D could pull it up to federal court o Ps lawyers now looking for localized cases (some environmental, some consumers) due to very conservative nature of the federal bench o State class actions are almost extinct; will see what happens politically soon o Some people think this allows you to create federal common law for class actions but this is dumb because of Erie nothing in 1332 suggests that congress intended to create federal common law for class actions. Personal Jurisdiction Requirement for D o Phillips Petroleum v. Shutts-although the Court doesnt apply Shoe to all members of a class, its clear that absent class members are entitled to certain due process rights (these also apply to state class actions because of 14th Amendment due process There must be adequate representation- 23(a)(4) states that one prerequisite is that the representation must be adequate; no one before said that it was a constitutional matter Each member of the class is entitled to actual notice and opportunity to be heard of the class action; was sort of assumed, but the Court states it as a constitutional matter; 23(c)(2); images of Mullane-lives on At least in cases involving money, must give the individual the right to opt out so that no member of a class is compelled to have his/her/its rights adjudicated on a representative basis In many situations, people will want to opt out: dont believe in lawyers or litigation, the money isnt significant to them, or commercially they may be connected with the defendant and must opt out to maintain that relationship May mean individual action or nothing; own choice of lawyer and forum if individual

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o Choice of Law- Shutts: Cant apply state law when it has no tie/connection with the case Demonstrates issue that disparity in state laws may make a class unmanageable If class action is litigated and theres a ruling, res judicata for the issues actually litigated and necessarily decided; if theres a settlement, no res judicata collateral estoppel issue Advantages of Class Actions: o Litigant Value: Access (day in court where otherwise wouldnt get one because of having an economically insignificant claim) o Systematic Value: Efficiency/Economy

CLASS CERTIFICATION

Class certification Class certification requires several prerequisites certification has become a big deal o Threshold questions that must be answered before certification; implied prerequisites 23a and 23b o Importance: Defendant: Avoiding certification in a cases where claims are not individually viable makes the whole thing go away Plaintiff: Banks are willing to lend money on certification, other lawyers willing to help, Greatly increases settlement value

Elements of Certification (Most State law modeled after Federal Rule 23)- this is decided by motion 1. Must have a class an identifiable, discreet group Class definable group, there is no obligation to identify (because many times P doesnt have access to the information needed to identify). o Must be precise, objective, and presently ascertainable. It cannot rely on subjective criteria or the merits of the case or require extensive factual inquiry to determine who is a class member. (In re Copper Anti Trust litigation). o Ex: People who purchased a particular stock between certain datesthere is a tendency to over describe- the vaguer the group is , dont

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2.

3.

4.

5.

6.

want it to cost more to identify the group than youll get in the class. Critical element of class action need to figure out who is bound by the judgment Cornerstone of judicial process right to your day in court o Figurative day in court in class actions make sure its used only when appropriate, and make sure all absent class members are protected (so we impose prerequisites) Plaintiff representative must be a member of the class Question of whether representative must have claims that run the whole spectrum, or if you can mix and match Plaintiff gets standing by being a member of the class Numerosity requirements Rule 23a1- making joinder impractical Class must be largeat least 40-50 people to demonstrate that the advantages of efficiency and economy of aggregated adjudication trump the individual right to actual (not just representative) day in court. o Over 100 Easy, Under 40 unlikely, 40-100 depends on case Common question of law or fact Rule 23a2 Class must be tied together my a common question Low thresholdonly need normal commonality Efficiency/economy rational Typicality requirements Rule 23a3 Class representatives claims/defenses must be typical of all the class members claims Want rep to look like class member and have average claim, not to have spiteful motivation or special arguments Found where each members claim arises from the same course of events and each class member makes similar legal arguments to provide the defendants liability. (Marisol v. Giuliani). Adequacy requirements Rule 23a4 Representative and lawyer must be adequate throughout the case cant bind absentees unless they are adequately represented

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o Shows the important fiduciary responsibility judge has to parties which is greater than in an individual litigation context. Constitutional, due process requirement- Shutts Representative: Surowitz, dont care about education or money but want someone that is willing to play a role in the case and be an independent actor from the lawyer, obligation to meet with lawyers periodically, willing to be disposed, convicted felon may not be allowed, cant be related to the lawyer Securities Case Statute: says it should be the party with the greatest loss (ends up being labor unions) 7. Legitimacy requirements Rule 23b Action must fall within a category thats recognized as a legitimate class action 23b1 Anti-prejudice device o Least used of the threecovers limited fund situation o Certify because someone will be disadvantaged if you dont (similar to 19A compulsory joinder) o Separate actions would create a risk of B1A: Inconsistent/Varying adjudication with respect to individual class members. Separate/individual actions have a risk of coming out differently that would establish incompatible standards of conduct for the defendant. Example: community issues bonds, some say they are void some say they arent- no one knows, inconsistency intolerable or Draft boards 23(b)(1)(B): prejudice to the members of the group-you want equitable distribution Issue comes up when companies going bankrupt, limited fund situations (insurance policy, stocks, money); e.g., hip replacement case: net worth of the company worth less than the money asked for; worried about compensation for people whose symptoms hadnt arisen yet, company so wellrespected and good that they didnt want to put it out of business because it would destroy the value for the shareholders and take away jobs Lawyers always try to get under this- but rarely successful because of the established standards: o Probability of Inadequacy of Resource

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o Clear in measuring the inadequacy of resources you are measuring all available assets (not just part) 23b2 Social action class action: Party opposing the class has refused to act, so final injunctive declaratory relief is appropriate o Injunction or declaratory judgment where everyone wants same thing (environment, discrimination, prisoner, due process)- All social actions/public interest o More of these actions than any otherso no one complains about them o Goal: change behavior or policy prospectively and not to provide individual compensation for injuries suffered. o Notice isnt deemed essential in these cases because the injunctive class is cohesive. o Problem: getting representation, because hard to get paid 23b3 Consumer cases- Predominance and Superiority o Not a traditional class court finds that the question of law or fact common to class members predominate over any questions affecting only individual members. Group injured by common practice and all want damages

o Procedural protections into b3 class actions that arent there for b1 or b2make certification difficult- reflects concern that because it isnt a natural class we must be cautious Notice must be given to the class members Court must direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort individualized Mullane notice Very expensive- banks loan on it, and could be part of negotiated settlement. 23E: reasonable notice of settlement, not clear that it needs to follow the Mullane standard There must be a right to opt out Opt-out privilege is only as good as the notice! 23B3: There must be a predominance of the common question of law or fact super commonality Doesnt mean every issue must be common (damage issue rarely is!)but does mean that the vast majority of liability issues must be common More cases about this than any other part of the class action

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23A2 Requires a common issue of law or fact, this goes beyond that requirement. Damages wont defeat commonality- damages are always individualized Predominance Pattern o Antitrust easy certification o Accident who caused it/what happened, damages ind. o Securities hard to certify, shareholders may have common interest in liability under securities law, misrepresentation may be central, but with Private Securities reform Act additional procedural hurtles Reliance (did the class members relyknowledge individual question), Conduct over time what caused the loss o Pharmaceuticals individual things like physical issues/dosage/time may eliminate predominance o Consumer/Insurance policies easier to certify Must prove that class action is the superior form of adjudication Sometimes superiority is absent because there is an administrative alternative, but most people say when there is a mass phenomenon with predominance, class action is the best way to go Remember that it may be superior to tons of other claims, but no class could just make the whole thing go away Considerations o Class members interest in individually controlling prosecution/defense in separate actions o Extent/nature of any litigation concerning the controversy that has already begun by class members o Desirability/undesirability of concentrating the litigation in a particular forum o Difficulties likely to arise in managing the class action (what do we think courts are for) computers have eliminated a lot of these problems

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o All of the complaints about class actions centered here this deals with money, cases are often high visibility Case Examples of B3s Castano: too individualized meant no certification (exposure to asbestos, difference in smoking habits, issue of defining addiction, etc.), conservative judge de-classified what a New Orleans judge was willing to take on even though it would be long and difficult After Hyatt, you had IUD cases that went to Los Angeles federal judgeCQ was product defect; goes up to 9th Cir. that reversed, says no predominance; 9th Cir.: yes, product defect is important; but every woman who uses the device uses it with different frequency, different occasions, different hygiene, etc. Asbestos class action of school districts claiming reimbursement to comply with EPA mandate that asbestos be removed from schools in Philadelphia; 3rd Cir. leaves it alone, goes up on mandamus-its a property case Agent Orange: basically the IUD case; problem: every US soldier in Vietnam had different experience with the chemical-how often, temperature, jungle or open territory; did go through-governing contractor defense (Boyle in USSC); defense is common, predominating HIV/Hemophlia- didnt certify but said that because each of the claims were worth 1-5 million there was the concern that one bad jury would ruin it for everyone. Since there was no necessity of aggregation and 17 of the cases were already actually litigated, decided that class action could be a bad bet Tobacco- all those addicted to tobacco that could not break the addiction- didnt explain how the class could be manageable Vioxx- people have admitted that certification probably wont happen but to deal with it company willing to put up money for all people that makes claims- there is a grid 85% have agreed like an opt out class action Tort Actions: Class action normally not available in personal injury (not fraud) cases o Single Event Torts/Mass Disasters Ex. Hyatt- Class action more available because there is a common fault/liability to the class, and there are no defenses. Only individualized determination is damage- which is always individual

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o Dispersed Torts Ex. Agent Orange, IUD- difficult Lawyers will try to avoid classification as B3, will say that Money is incidental really it is a B2 in order to avoid the predominance/superiority requirement Notice under B1 and B2: Not clear if there is a constitutional requirement, general precaution is to give notice for everyone Hybird class actions requesting injunctive and monetary relief. An area of uncertainty. Most of the time the money is figured to predominate so it is viewed as 23b3. Some have been certified under 23b2 but have required Shutts notice and opt out. Class action is binding on all members of class who do not opt out Decisions to settle class actions must be approved by the judge o Settlement must be fair, reasonable and adequateclass members must get notice, and they can choose to object Rule 23e

JUDICIAL MANAGEMENT OF CLASS ACTIONS: RULE 23D

Judge acts as a fiduciary for the class; she should act to protect the members of the class; provide for the fair conduct of the action; ensure proper notice; regulate the behavior of the lawyers and representative parties. Provision is intended to work along with Rule 16, which provides for judicial management, pre-trial conferences and scheduling and planning b the judge.

SETTLEMENT OF A CLASS ACTION: RULE 23E

Majority of cases settle- risk adverse concern about such high stakes Concern that no one is really looking out for the absent class members. Judge Approval Requiredadversary system breaks down during settlement. Judge thus acts as a fiduciary for the class members. o Looks to whether case is mature. If the case is immature P required to do due diligence as to the claims worth o Judge has to conduct own inquiry- like a mini trial P will try to show how the case would have taken years and consumed resources and that the settlement recovered is sufficient

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Must be a determination by the court that the settlement is fair, reasonable and adequate. o For the absentees o Formal hearing.

For a 23B3 settlement court may require a second opt out opportunity Settlement of a 23b3 requires class certification and the Shutts protections, expedited because the defendant wont fight the certification.- Dual motion Class members must be notified of the settlement terms and be given an opportunity to come in and object. o If you dont take care of objectors, they can appeal, might take more time, halt settlement, maybe reverse. o X: asbestos litigation. Appellate court said the settlement was inadequate.

Settlement may come very early in the case- maybe even prior to certification o Suits filed with nearly simultaneous settlement Benefits: avoid litigation Bad: judge, at embryonic stage, has no record from which to learn about the case and often doesnt know if the settlement dynamic was a true compromise between fully informed and sophisticated parties

Settlement Cases Amchem Products, Inc v. Windsor (1997): Class action seeking to achieve global settlement of current AND future asbestos related claims. Same day, parties presented claim, answer, proposed settlement agreement, and joint motion for conditional class certification. District court conditionally certified under 23b3. Appealed based on objections from certain class

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members; 3rd Cir found predominance lacking; inadequate representatives (had conflicts of interest); no typicality; no superiority. SCOTUS agreed but said it should have considered settlement as a factor as well. Ginsburg holds that the settling parties achieved a compromise with no structural assurance of fair/adequate representation for diverse groups and individuals affected. o Illustrates the problem in representing people that dont even know if theyve been exposed or arent yet systematic
APPEALS: RULE 23F- PERMITS INTERLOCUTORY APPEAL ON CERTIFICATION

Good because it allows you to iron out discontinuities and have more homogenous results. Bad because it adds time to the process Permit, not right to appeal- broader than previous writ of mandamus

ATTORNEY FEES:

Most Ps today are %--contingent fees. Around 40% (33% normal, 40% trial, 45% appeal) Because there is only a K with the representative judges have to set the fee- judicial fee award Atty must make a motion to obtain fee and this motion can be objected to by members of the class or party from whom payment is sought. With most state actions, consumer actions, federal actions built in provisions saying prevailing party must be awarded reasonable attorneys fees- recognizes you need incentive for lawyer SCOUS: normal billing for this type of work Contingency fee not under statute Reasonable fee must reflect market place for contingent fee lawyers doesnt take into account risk (so works against P)

DISCOVERY: RULES 26-37

Centerpiece of civil litigation in this country, #1 area in terms of rule-making activity within the Fed Rules Historically

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o Equity: discovery designed to preserve testimony o Code Period: Expanded in certain categories, pleading had the three functions of fact/revelation, issue formulation Example of Code Limitations: Kelly v. Nationwide Mutual Insurance: decided before the fed rules State law held that discovery could ask about anything relevant to an issue in the action (as opposed to being restricted to an issue in the pleading) moving towards fed rules Cant seek privileged information Information sought must be admissible as evidence o Federal Rule: limited pleading to notice giving, discovery regime developed Philosophical underpinning leveling the playing field, avoiding trial by surprise o Everyone has equal access to all relevant information maximizes likelihood that the court gets it right Discovery enables summary judgment to work o Designed to determine if there is a triable issue, or if there was a way to resolve the case without trial by enabling judge to work with the pleadings augmented by discovery productivity? o Trying to avoid trial if there isnt a reason to go to trial Discovery is labor-intensive, costly, takes a long time Discovery is intrusive at many levels: functioning of entity, privacy, economics of litigation Only 50% of federal cases have discovery at all, and discovery is only limited to 10 events o In lengthy, complex civil cases (10%) there are more than 10 events

Three Important Discovery Areas 1. Scope of Discovery what is the legitimate area of inquiry? 2. Discovery Devices what methods do the parties have at their disposal to gather evidence? 3. Work Product Doctrine Hickman v. Taylor
SCOPE OF DISCOVERY

Federal system determines scope of discovery, discovery mechanisms Discovery Prior to Litigation Basically none

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o May think that it would be important for framing a complaint, but pre-action discovery is narrowly defined in order to avoid harassing people Rule 26b1 Federal standard broadens discovery scope and limits o Discovery on any matter not privileged that is relevant to the claim or defense of any party Relevant to a claim or defense scope plaintiffs always fight to maintain this open scope, defendants always fight to narrow it Claim or Defense issue (although really there are no issues framed in the pleadings) It was changed in 2003 from relevant to the subject matter in order to try to symbolize limiting the scope of discovery o Good cause anything related to the subject Matter if there is a difference between earlier and current scope the court has the ability to widen o Materials dont have to be admissible at trial to be discovered at this stage but has to be reasonably calculated to lead to admissible evidence (cant just go fishing) o Doesnt include Privileged Stuff: Attorney-client, priestpenitent, dr-patient, spousal. These things TRUMP discoveryyou cant get at them. Can waive priv. if you want. o Rule 26(b)(2)(C) discover can be limited where it is unreasonably cumulative or the burden of discovery outweighs the benefit. o Rule 26f parties mandated to get together and negotiate discovery before judicial conference o Rule 34c Persons not parties can be compelled to produce documents or things or to submit to an inspection. But it is done under rule 26 (discovery) and rule 45 (subpoena). Rule 26c Protective Orders o Protective orders have been a battlefield for over a decade o Raises issue whether a civil litigation is a public or a private process- Demonstrates some sense of privacy Discovery drafters thought it was a private process scope of discovery much broader than the scope of admissibility Many go to alternative dispute resolution to gain the privacy they cant get in court o Seattle Times v. Rhinehart: newspaper orders donor list/member list for discovery Court grants discovery, but with a protective order

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1. Doesnt want people using discovery regime cavalierly, for ulterior motives Illustrates the extraordinary discretion of the trial judge, as far as what is/isnt discoverable 1. All of these discovery orders are interlocutoryrarely appealable Although media doesnt like this case It didnt keep them from getting the information from other sources, or using it for background just said you cant use it as a weapon. Settlement o Parties many times agree that the record will be sealed, and P wont be allowed to talk about terms, may also require the return of discovery documents. PP: Argument that through this public threats to health and safety are hidden (others say OK because normally defect has already been corrected and it would just be embarrassing). Not sure of full effect. Argument that without privacy would reduce the likelihood of settlement and there is a public interest in settlement. 1. Some states have responded with sunshine in litigation laws and there is pressure to amend 6c Scope is Connected to Substantive Law o Striking questions based on relevance- scope is always contextual o Income discussions if punitive damages are an issue (why Ps love punitive damages because they widen the scope of discovery)

DISCOVERY DEVICES

1. Mandatory disclosure (Rule 26a) automatic obligation to turn over certain informationregardless of whether anyone asks for it or not o Documents, witnesses, damage computations, insurance policies qualify for mandatory disclosure These are things that the rulemakers believe are so obvious, central, and important to getting going that no motion should be needed- mainline basic stuff o Dont get to discovery until youve gotten through disclosure o Problems Philosophically: against the adversary system model

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Adds a layer to the process, costs money and consumes time, have to meet and figure out if each side has complied with it 2. Deposition (Rule 27-before action; Rule 30-after action is instituted): can question any person (party or not) under oath regarding subject matter of the case o Looks like a trial but with no rules of evidence. Adversaries, witnesses sworn, cross examination, rebuttal, all transcribed. If witness may be unavailable can videotape o Notice is only required if deponent is a partycan force a nonparty with a subpoena o Positives: spontaneous- respondent must answer on the spot, scope is wide (so few permitted objections to any particular questions), opportunity to appraise witness (content/demeanor), get to substance (identify what is knowable/known/appraise case), measurement rod for settlement o Bad: Costs a lot o Respondent must answer all questions depositions can include things that are inadmissible i.e. not an objection that theyre talking about hearsay o Rules 31, 33 limit each party to 10 depositions (up to 7 hours each) without a court order 3. Deposition on written questions rarely used; can also be directed at anyone o Saves money (oral depositions are very costly), and works well when the witness isnt antagonistic, get spontaneous reactions and videotape to show demeanor o Downside is that you arent thereyoure stuck with whatever questions you sent in advance, cant react to what the person says However, if something shows up, can opt to orally depose the witness 4. Interrogatories questions sent to other party who answers them with lawyer and sends back o Work shifters less cost for questioner, more for answerer; easier to write questions than answer them o You can only propound interrogatories to a party, not to a witness o Gives interrogating party the benefit of the entire information base (not just what other party knows personally) o No spontaneity, no demeanor, no opportunity to catch word/phrases/reactions. Honesty requirement but no super compulsion to tell the truth (shaded to help yourself)

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o Many lawyers use as a sweep find out who knows what, and then depose them o Interrogating party writes out all their questions, limit of 25 (otherwise have to ask court) Rule 33 used to get baseline data, used for things with a specific answer 5. Document discovery / land inspection (Rule 34) access to land, machinery, laboratories, computer systems, and electronic data o Following conference in accordance with Rule 26d, just give notice about what you want to see o This discovery device now becoming as important as depositions in products liability, etc o Electronic Discovery Zubalake Demonstrate dimensional shift with electronic datacost is high Spoilation issue If something is reasonably accessible has to be produced If something costs a lot, perhaps cost sharing- Cost Sharing Factors: o Specificity of the discovery request o Likelihood of discovering critical information o Availability of such information from other sources o Purposes for which the responding party maintains the requested data o Relative benefit to the parties of obtaining the information o Total cost associated with production o Relative ability of each party to control costs and its incentive to do so o Resources available to each party Accessibility: 1. active online data, 2. nearline data, 3. offline storage/archives, 4. backup tapes, 5. erased, fragmented or damaged data Litigation Hold: first thing P will do is write to D to order a disposition hold 6. Physical/Mental examinations (Rule 35) court order to submit to examination o Only discovery device that requires a motion and subsequent court order for imposition o Rule requires def to establish two required elements before court issues order

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Good causeneeds info from the exam that it cant get elsewhere In controversymatter being examined is specifically in dispute in the case o Closest of all fed rules to violating the Rules Enabling Act Does it abridge, enlarge or modify a substantive right (privacy). If it doesnt, then Hanna immunizes it. Its a Roe v Wade or right to die caseimplicate right of privacy; or, at least in Roe, the right of physical, bodily privacy. Is this the first Rule that is invalid because its unconstitutional?? Well you can at least use it for Psif you yourself put it at issue. Seattle Times: the only justification there was a legitimate state interest. Well arguably you can say the same thing about Rule 35 when its put up against the privacy cases. These can be biopsies, MRIs, spinal tapsthey have consequences, possible fatalities Whose doctor? Can you bring your lawyer?

o Schlagenhauf v. Holder: bus driver involved in accident, def petitions court to issue order for 4 exams Court says must balance privacy rights and interest in resolving disputes justly and expediently Since plaintiff didnt assert his condition in his claim, court says Rule 35 requires D to demonstrate good cause and the fact that his condition is in controversy in the case Because no evidence brought to support requirements, SC reversed the exam orders 7. Request to Admit Rule 36 Issue is so clear the other side cant deny in good faith. Once admitted it is out of the caseno need to be proven. Rarely utilized- difficult to get an admission so just produces paperwork and motion practice. Procedure: i. Fatal decision is to do nothing forfeit issue, you can deny (but subject under sanctions of Rule 11 and 37), say you dont know, or have an on information and belief statement for denial/admittance.

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Not really a discovery device, classified because its closer resolution/adjudicatory

Expert Provisions: Experts play an important role in modern complex litigation (economists, technological experts, scientists) 26a2b: Have to disclose your experts, and say what theyre going to say (although usually very generalized) data, exhibits, qualifications, complete statement and basis, list of other cases in previous 4 years witness has testified at, compensation 24a2c: have to make disclosure at least 90 days before date set for trial or case ready for trial. Or if only intended to contradict or rebut evidence identified by another party under 26a2b within 30 days of other partys disclosure. 26d4a- a party may depose any person who has been identified as an expert, if a report is needed only after the report has been filed. Trial preparation. Payment. Judges Role in Managing Discovery Uses the power under management Rule 16 o Judge may decide that there is one particular issue that we should drive towards like statute of limitations or assumption of risk- single issues that are life/death. Judge may hen set time frames/requirements and say that you only have discovery on this one issue and no merit discovery until resolved. o Endless series of conferences with judge- status conferences, different pretrial orders governing the next stage in discovery

WORK-PRODUCT DOCTRINE- RULE 26B

Hickman v. Taylor: greatest discovery case o Lawyer performed extensive work (interviewing, etc) before case was brought o P brought suit and filed an interrogatory requesting basically everything from lawyer (copies of all statements taken in connection with accident, and if oral, summaries of the statements) o SCOTUS said this is essentially an attempt to get inside the head of the opposing counsel, without justification since plaintiff can interview witnesses himself

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Not a privilege case, because not about attorney-client communication But the information is attorney work-productneed a good reason for obtaining it If this case didnt exist, lawyers would wait for opposing counsel to do work and then just ask them to turn it over In the alternative, would lead to lawyers not writing anything down, which is also bad o SC doesnt create a lawyers privilege, but a qualified immunity If cant get a substitute, immunity is trumped in the name of access to all relevant data; but if there is a substitute, immunity holds- No substitute because it is a hostile witness/dead/away Rule 26b Codification and extension of the Hickman rule o A party may obtain discovery of documents and tangible things prepared in anticipation of litigation or for trial by or for another party (or representative) only upon showing substantial need and unable without undue hardship to obtain substantial equivalent by other means o Court shall protect against disclosure of mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation If mixed judge will receive documents and cross off all the stuff thats work product o Also extends to a lawyer doing non-legal jobs, notion whatever a lawyer does is impregnated with the attitudes/philosophy towards the case. Rule also embraces non-lawyers acting for the lawyer (PI, Photographer, etc). o When does work product become an issue? After the COA has arisen. Still some ambiguity about what is done in anticipation of litigation. Negatives of Work Product- Over utilization, Friction points Value- judicial independence/lawyer independence

FUTURE OF DISCOVERY/1993 AMENDMENTS

Likely Future Amendment: Electronic Discovery: o Not all emails subject to discovery. Rules are likely to be amended to deal with electronic discovery as we are now awash in electronic information 1993 Amendments /Judicial Management of Discovery

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o Promote management by judges of discovery and tries to further get rid of game playing. Limit to 10 depositions (more with court approval) Limit to 25 interrogatories (more with court approval) Mandatory Disclosures 26(a) controversial. Name, contact info of anyone you know who might have discoverable information Locations of documents, data, tangible things relevant to an issue in the case Theory by which P computes damages Any relevant insurance policy. Disclose more about experts (not subject to deposition by opposing parties). Names of potential witnesses/documents you intent to use at trial 26(a)(3).

o Other than the amendments, a few other management devices: o 26(f): Conference/Planning. 21 days before scheduling conference is held or scheduling order is due under 16(b) parties meet and confer to consider nature/basis of claims/defenses, discuss settlement and propose a discovery plan. o 16(b): Scheduling/Planning: DC judge receives report from parties on 26(f) & schedules conference to talk about joining parties, amending pleadings, filing motions, and scheduling discovery. o 16(c)(1)- Subjects for Consideration at PreTrial Conferencesshape the case. Articulate that which is actually in controversy and that which isnt. Simplification and formulation of the issues, including the elimination of frivolous claims or defenses. o Trial management courts cut down on length of trial. Rule 16 a blue print of trial management. Dont manage tiny cases. Any substantial case will be managed. o Settlement goes into rules- in 1983, judges rule as provocateur of settlement is legitimated.

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o Case is managed/ shaped by the judge Want to encourage settlement

PRE-TRIAL MANAGEMENT

Rule 16 Pretrial Conferences; Scheduling; Management o Gives court power to sequence, direct, schedule and manage in every respect o Prior to 1983, judges did not have to involve themselves with the idea of settlement o Rule 16 amended the requirements dramatically As soon as case falls within the docket (few exceptions), the judge grabs it and holds a conference to determine the scheduling, sequencing, management, etc of the case Puts much greater pressure on parties to get moving on a settlement o This and subsequent conferences create a triangulated system to promote settlement Judge now major participant in process (20% of judicial resources shifted to management) Some believe push for settlement hinders parties right to adjudication Rise of Para-Judicials o Magistrates judges created by Congress, no lifetime appointment or presidential commission District judges can delegate authority to run discovery, though no adjudicatory power Make recommendations to district judgestrial lawyers may not see real judge for a while o Masters ad hoc appointments Rule 53 for specific purposes (i.e. economist, accountant) Make reports and recommendations to district judge on matters within area of expertise

Below fed rules, each district has local rules, and judges may even have their own rules.

SUMMARY JUDGMENT- RULE 56

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Serves as a filtering device designed to shorten trials, motion made in the middle of a case Stages of trial that serve as filtration devicesshould the trial go on? o Rule 12b6 Motion to dismiss have you stated a claim for relief? D says there is no claim upon which relief can be granted Limited universe to the claim If granted, there is usually leave to re-plead o Rule 12c Motion for judgment on the pleadings If granted, there is usually leave to re-plead o Rule 12d Presenting matters outside the pleading Demonstrates the interaction between 12 and 56, everyone give opportunity to present material pertinent to the motion. o Rule 56 Motion for summary judgment Do you have a claim for relief Universal standard = is there a genuine issue of material fact? Judge looks at all admissible evidence, to see if it can be resolved as a matter of law Because you are denying someone a day in court- very heavy burden on the moving party- although after Celletex and current bench this has lightened. Granted When: o Ps case has no legal basis (i.e. no legally recognized wrong) o No genuine issue of material fact no reasonable jury could disagree with it all o there is a iron-clad defense that cant be overcome (i.e. statute of limitations has expired, res judicata applies) If granted in effect youre saying there is nothing trial-worthy & produces final judgment with res judicata effectnot appealable EXAM: Make sure you dont miss a triable issue of material fact on the exam. Even the absolute slightest chance of the non-moving partys questioning the fact is enough to deny the MSJ. Issue of Judicial Discretion, Likely to be denied if: There is something shady in the affidavits

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Credibility is an issue should be tried by jury When the party with the burden of proof at trial moves for summary judgment because juries may always disbelieve the witnesses presented at trial. There is a gap in the evidence that needs to be fleshed out (there are three witnesses to an accident and only two depositions have been presented)

Procedure Moving party has initial burden of proof to clearly show that there is no dispute of genuine fact (this is the case even if the moving party is the D who would not have a burden of proof on the issue at trial.) If moving party fails to show there is no issue, motion denied (regardless of whether the opposing party showing anything). It is only when moving party has shown that there is no factual dispute that the burden shifts to the opposing party to show that there IS a dispute.

o Rule 56 (a): Any party may move for SJ at least 20 days from commencement of the action or after service of MSJ by adverse party; without or without supporting affidavits. (b): D can move at any time. (c): Judgment may be entered if on all the evidencepleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, the moving party shows that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law (same as directed verdict )

o Rule 50 Directed verdict motion judgment as a matter of law; asking is anything jury-worthy? Essentially the same as a Rule 56 Motionbut timing is different

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Case is getting more mature, motion-making getting less forgiving D claims ps evidence is insufficient, doesnt satisfy the burden of proof If granted, produces final judgment with res judicata effect not appealable o JNOV renewed motion for judgment as a matter of law Case went to jury, jury ruled, and verdict-loser is making this motion claiming that the case actually shouldnt have gone to a jury Same motion as directed verdict, Rule 56reflects back to whether issue was jury-worthy If judge grants, he changes the verdict o Motion for a new trial Highly discretionarye.g. granted when discrimination is found The only reason we have trials is to determine issues of factsif no facts are in dispute, judge can rule on case as a matter of law o 1Ls often miss this if there are no triable issues of fact in fact pattern, no reason for trial!

Policy

The summary judgment is viewed by many judges as a directed verdict motion at a different point. Is there enough here to send it to the jury? (directed verdict) Is there enough here to make it trial worthy (summary judgment). o There is a fact/law dichotomy that is also a jury/judge dichotomy. By bolstering summary judgment we push more things onto the law side.
o

Commitment to jury trial and the day in court always made judges cautious about granting summary judgment. That has weakened significantly since the 86 trilogy.

Some policies for limiting the scope of summary judgment.

o

The idea of a day in court is a powerful one. Even though a summary judgment says you dont have enough to get into court, we are still worried about giving final judgment without a jury verdict. The 1:1 between summary judgment and directed verdict is suspicious: Summary judgment is based on immature discovery, while directed verdict is based on mature information

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from trial. Also, witnesses are treated very differently from discovery to trial.
o

Transactions cost increase by placing more emphasis on complete discovery (which undercuts some of the cost saving rationale of summary judgment.) Notion of plausibility from the Japanese TV case start to creep in on issues generally reserved for the jury.

Policies for expanding summary judgment: 1. Save money and resources. 2. Ambivalence towards jury competence compared to judges. 3. Reduces litigation which is important if you believe in a litigation crisis and its effect on American competitiveness.

RULE 56(c) CASES: HYPO: Student is walking to school, hit in crosswalk. Plan to present eyewitness accounts at trial from various religious figures who will all testify they saw the student in the crosswalk, then saw the car hit him while driving like a bat out of hell. Def plans on putting a less credible alcoholic on the witness stand to testify that plaintiff was running, looked drunk, saw the car coming, and shouted hit me, hit me, and that the car tried to stop. o Pretty obvious that plaintiff would win at trial o Plaintiff makes summary judgment motion, claiming there is no genuine issue of material fact with respect to negligence Judge cant consider factsmerely asks are the facts in dispute? Facts are in dispute if we believe defs witness, but at trial we wouldnt believe him But factual disputes should be left to the jury, because regardless of how obvious it seems there is an issue of credibility that the jury must decide o This case must go to a jurysummary judgment shouldnt be granted Lundeen v. Cordner: material fact at issue whether decedent took the necessary steps to change his will o Intervener moves for summary judgment; court grants, saying trial would be a waste of time Plaintiffs affidavit didnt meet issues raised and supported by interveners affidavit No further evidence would come up at trial o Once the moving party says there is no issue of material fact, then opposing party has opportunity to present evidence that

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there is a genuine issue but plaintiff didnt do that here should have done discovery, should have deposed interveners witness Party opposed to SJ must assum some initiative in saying fact does exist o In Lundeen, the material issue was a pure fact There can also be mixed law/fact questions (i.e. purpose, motive, intent) o Court says if you would be entitled to a directed verdict, should be allowed SJ o If there was an obvious advantage to cross examination then SJ may be improper- but no evidence here that affidavit was bias, dishonest, etc. and it cant just be a vague supposition Cross v. US: professor claims his vacation was an educational expense o Issue of material fact is whether any % of his expenses qualify as educational o Judge cannot draw inferences in fact during the SJ stage (strays into 7th amendment jury area) All inferences should be drawn in favor of the nonmoving party Fact issues here interlaced with legal issues more fact application issues than Lundeen o Shouldnt grant SJ just because cross examination could be done through deposition deposition isnt a substitute Adickes v. Kress: civil rights casewhite teacher eating with black students thrown out of restaurant, then arrested o Adickes alleges conspiracy between the restaurant (Kress) and the police o Kress makes motion for summary judgment supplies affidavits from police and restaurant manager saying there was no preconceived plan/agreement o Justice Harlan says the movant has a burden on a summary judgment motion, even when that party wouldnt have the burden at trial Movant has burden to show absence of genuine issue of material fact When there is an issue of mixed law/fact, and there are credibility issues, non-moving party should be able to try and prove their case at trial

1986 Trilogy: Demonstrates things have changed towards SJ

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Celotex Corp v. Catrett: plaintiff sues for husbands asbestos-related death o Joint liability theory plaintiff allowed to sue a number of different defendants, as long as plaintiff can prove that each def manufactured, or caused to be manufactured, the asbestos her husband was exposed to Here she wasnt able to prove that Celotex manufactured the product AND that her husband was exposed to Celotexs products o Classifies Burdens 1st Moving party: has to push the case into SJ area- has to establish that there are no genuine issues of material facts and therefore they are entitled to judgment as a matter of law no obligation to do it in a particular way, just push it into the area (dont know if the movant just says cant prove it if that would constitute a Rule 11 violation) 2nd Once the moving party has pushed it into the SJ area the burden shifts If movant hasnt pushed it into the area non-moving party doesnt have to do anything. If they have, the non-moving party has to push it out (cant just stand on their pleading need to come forward with something to show its trial worthy) o Says that SJ is not a disfavored procedural device stamp of approval o Brennans dissent says this the majoritys opinion doesnt provide any guidance for what a lawyer needs to do when moving for summary judgment! Anderson o Tries to create a 1:1 relationship between SJ and Directed verdict, saying that SJ shouldnt be granted unless the case is trial worthy and directed verdict shouldnt be granted if the case is jury worthy. Problem: that there isnt this correlation SJ all on paper when case isnt fully mature, judge cant judge credibility on SJ o Use the substantive standard to judge if a person could find either way if there is a heightened standard, use the heightened standard o Jury role- to weigh evidence, draw legitimate inferences from facts (this isnt judges role)

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o Judge should make all inferences in favor of the non-moving party Matsushita o Says there is no issue for trial because you have no facts which give rise to an inference of conspiracy o Similar to Twombley- focus on plausibility- if inference/reasonableness is a jury concept isnt plausibility? Looks like retreat from jury trials

JURY TRIALS

6th Amendment guarantees jury trial in criminal cases (incorporated into 14th Amend, applies to all states) 7th Amendment civil jury trial (has never been incorporated through the 14th Amend) o 1st clause: preserves the right to a jury trial as in common law o 2nd clause: prevents judges from re-examining what juries have done Gasperini Legitimacy of jury trial for criminal trials, jury trial was to be a buffer between citizens and state, and recognized unbelievable power of the state prosecutors o This function isnt so necessary in civil litigation o Civil litigation think about judicial bias, the common sense/ethics of the community rather than a judge o Often wasteful, time consuming Historically o Equity/Law divide- Equity judges able to use the clean up doctrine and award incidental/related damages at the foot of the equity decree this solved all the issues but didnt give you a jury trial on the money part

Courts didnt treat jury trial as a right in civil casesuntil Beacon (but not all states adopted Beaconon an exam, would be safe to say on the one hand, on the other hand) Beacon Theatres: o In situations where there are both equitable and law issues: Have to give priority to the 7th amendment issue of a jury trial

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Right to a jury trial attaches to certain issues (like quantity of damages)

o Judge Must Itemize this issues Purely legal Jury Purely Equitable Judge Common Questions presumption that they should go to the jury, whatever the jury says is binding on the judge when the judge turns to equity issues

This is a big departure from earlier clean-up doctrine (change from predominantly equitable to predominantly law)

POST-BEACON: Beacon Theatres was all about taking a case that was totally equitable under the clean-up doctrine and converting it to a case that is 2/3 jury trial o Twin prerequisites of equity jurisdiction inadequacy (shrinking as legal system expands), irreparability of harm o Ability to get into equity and bypass the jury shrinks, as exemplified by the following hypos Contract HYPO: Plaintiff contracted with def for widgets; def didnt produce them. At equity, if plaintiff came into court and said this, it would be a request for specific performance (equitable) and therefore up to judge. Now: o Almost all issues here are legal/for the jury Was there a bargain? (combination) Was there consideration? (combination) Was plaintiff willing to perform his side? (combination) Was there a breach? (combination) What are the damages? (purely legal) o Only equitable issue should specific performance be granted? Dairy Queen v. Wood: plaintiff asking for permanent injunction and an accounting of the money they were owed o Both aspects of plaintiffs case was historically equitable o SC again rejects tradition says jurors are capable and can get masters to help with complexities of accounting

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Again demonstrates Blacks desire to embrace opportunities to expand jury trials o Court goes farther than Beacontakes a large head of equity jurisprudence (accountings) and moves it over to the law side, giving it jury trial right Why we dont just get rid of equity completely equitable relief Juries cant handle effectively o Paradigmatic injunctions, SP o Sometimes better to have wide range of legal experience/mechanisms/principles Ross v. Bernhard: derivative suit derivative suits and class actions were born in equity o Court held that it doesnt matter that dispute comes into court in equity procedural vehicle look beneath the procedure, beneath the derivative requestwhat kind of an action is this? Court said its a mixed law/equity case o All equity procedures (interpleader, derivative suits, class actions) carry jury trial under a straight Beacon analysis, once the judge makes the procedural decision that equitable device is appropriate p.909 footnote on determining what is a legal/equitable issue for the Beacon analysis As our cases indicate, the legal nature of an issue is determined by considering: first, the pre-merger custom with reference to such questions; second, the remedy sought; and third, the practical abilities and limitations of juries This last step in the process of determining what is legal/equitable inspired a lively debate over whether it meant that you shouldnt have a jury trial in complex cases Curtis v. Loether: Title VIII claim about housing discrimination based on race o Def demands jury trial; plaintiff says no jury trial provision in the statute o SC decision if certain conditions are met, post-1791 statutory rights carry Constitutional jury trial right Right created by Congress must be vindicated in Article III courttraditional court Remedy provided must be one traditionally granted by juries in courts of lawdamages Right created must be analogous to right that existed in 1791 Analogies cited by court arent convincing; this restriction is easily overcome

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o Court holds that Title VIII does create a legal right to a jury trial doesnt matter if it did or didnt exist at the time of the Constitution! Markman v. Westview: issue is how should the scope of the term inventory be decidedby judge or jury? (inventory as used in patent) o Court says this is for a judge to determine o Contracts are usually for a jurywhy is this different? Complexity exception? Exception because its a patent case? Majority says the question is analogous to interpreting a statute (tried by judge) But dissenting view says this is a question of fact like a contract (tried by jury) uniformity concern patent must mean the same thing nationally, and this uniformity will be better implemented if resolution comes from a judge rather than various juries Patents and contracts have long been recognized to be within the exclusive domain of the federal court to encourage the same kind of uniformity

Questions to ask to determine whether an issue is law or equity 1. What did the court do in 1787? (footnote) 2. What is the remedy sought? a. Money or money substitute = jury b. If want to enjoin someone from discriminating against you = pure equity 3. What court are we in? a. Article III courts = math on jury trial skyrockets b. Bankruptcy court, military tribunal, etc = unlikely to get jury trial 4. Who is judging case? a. Judges Black and Douglas = presumption is always a jury trial

EXTRA

Federal System follows the final judgment rule. Safety valves are: o Writ of Mandamus: Ordering judge below do something o Writ of Prohibition: prohibit the judge from continuing their jurisdiction over the case

Federal courts permit remitteur but prohibit adetuer

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Res Judicata v. Collateral Estoppel o Collateral Estoppel Takes the issue out settlement doesnt usually have a CE effect. o Non-Mutual Collateral Estoppel (validated by SCOTUS) if you were a stranger to the case, and what you want has lost, but the other party had a full and fair hearing, the issue was necessarily decided and you were foreseeable- than there is issue estoppel. Exception: Taylor: Appeals court had said that res judicata, you cant bring the claim because you were virtually represented, and this could go on forever. SCOTUS has said that virtual representation was not equivalent to having your day in court

Contempt o Criminal Contempt: Committed a Crime/Flaunted the System. Ex. Punching a judge. Hit with criminal contempt and sentenced to jail like you would be in any other criminal context. Goal: To punish. This is a final judgment, Appealable. o Civil Contempt: Not a crime, not seeking to punish- wanting to secure compliance with the decree seeking to intimidate (often done with money, journalist in jail). Not viewed as a final judgment and not appealable (Hickman was this- yet no one questioned appeal ability)

Hierarchy of Information o Witness on stand (live/cross examination/under oath/judge) o Oral deposition (under oath/cross examination/no judge) o Deposition on written Questions o Interrogatories to parties (ex parte world) o Affidavit (no cross examination, no response to anything, but signed and subject to perjury Rule 11)