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Choice of a court (1
choice a lawyer has to make) is arguably one of the most important
Attorney alleges jurisdiction, and the court confirms it Rule 8a1
Seven Questions to Determine Proper Jurisdiction
1. Does the court hae subject matter jurisdiction! (power to hear dispute)
". Does the court hae personal jurisdiction! (power oer person or property)
#. $as the defendant been gien proper notice and an opportunity to be heard!
%. $as the defendant been sered with process properly!
&. Does the court hae enue!
'. (f the action is in a state court, can it be remoed to a federal court!
). $ae any of the preceding si* issues been waied!
a. +ubject matter jd can,t be waied- the others can, and if they aren,t asserted, they,re gone
St!te Courts
Courts of general jurisdiction, empowered to hear all cases in law and e.uity
o Lacks v. Lacks/ the assertion of insufficient residency, though an element of the claim, doesn,t affect the
court,s competence to decide this claim
o +tate courts usually diided up by subject matter for the sake of efficiency and economy
"eder!# Courts
0he party seeking to inoke the jurisdiction of a federal court has to make an affirmatie showing that the case is
within the court,s subject matter jd
1ederal courts are courts of limited jurisdiction, authori2ed to hear 3 categories of subject matter
Constitution, Article (((, 4" the judicial power of the 5+ shall e*tend to all cases/
o Arising under the Constitution, laws of the 5+
o 6etween a state and citi2ens of another state
o 6etween citi2ens of different states
o 6etween a state, or citi2ens thereof, and foreign states, citi2ens, or subjects
7o matter when the deficiency of subject matter jd is noticed, the suit must be stopped and dismissed Rule 12h3
Cause of action must !rise under t%e Constitution& #!'s or tre!ties o( t%e US
8atch out for .uestions that inoke federal language, but arise under state law
o 7ot enough that plaintiff is asserting a state9created claim which re.uires interpretation of federal law
(typically breach of contract in patent or copyright cases)
o :ere fact that litigation is about federally9created property doesn,t answer the .uestion of whether the
cause of action ;arises under<= (Harms v. Eliscu)
o Anticipated federal defenses aren,t part of the cause of action, so don,t create federal jd>federal subject
matter must be part of the original complaint (Mottley)
o Merrell Dow Pharmaceuticals v. Thomson/ een though state laws may incorporate fed law, case is not a
federal .uestion, no federal jd
?riate right of action must be contemplated by federal statute or regulation for this to .ualify as a
claim ;arising under<=
8ell9pleaded complaint rule / must determine where the cause of action arises solely from plaintiff,s complaint
@*clusie fed .uestion jurisdiction / certain claims must go to a federal court (like Copyright and ?atent Act)
Concurrent fed .uestion jurisdiction / more common>either fed or state court for most claims
7o jurisdictional amount re.uirement for fed .uestion jd
1. ?roided in Article ((( and 5+C 41##"
a. Article (((/ judicial power shall e*tend to all cases arising between citi2ens of different states
i. +C is only judicial power created by Constitution (inferior courts created by congress)
ii. Congress can establish rules to define broadness of jd (i.e. amount in controersy)
b. Capron v. Van Noorden/ Court must determine subject matter jd een if parties do not establish it
i. FR 8a1 created complaint shall contain grounds upon which the court,s jd depends
c. 41##"/ proides neutral forum for people of different states to litigate in
". +eeral rules goern grants of diersity jurisdiction
a. Ru#e +$ T%ere must ,e comp#ete diversit- o( citi.ens%ip
i. 7ot e*plicitly stated in 41##", but has been the rule since traw!rid"e v. Curtiss
ii. @ery person on left side of must come from different state than eeryone on the right
b. Ru#e /$ Citi.ens%ip (or e!c% p!rt- is determined on d!- o( institution o( t%e !ction
i. Court doesn,t rely on pleadings, but rather on parties, real interests in the litigation
ii. Court will not take jurisdiction where party was ;improperly joined= to obtain jd
iii. 1or diersity purposes, we hae jurisprudence for fi*ing citi2enship (unrelated to regular
definition of citi2enship)
c. Ru#e 0$ "our su,1ru#es to determine citi.ens%ip o( t%e p!rties
i. 7atural ?ersons (41##"a)/ citi2enship is e.uialent to domicile
1. ?resumed to hae same domicile since birth, unless we (1) physically change our state
and (") plan to remain there indefinitely (;center of graity test=)
". Can hae multiple residencies, but can only hae citi2enship in one state
#. 7eed both 5+ and state citi2enship for diersity of citi2enship
a. ?ermanent resident aliens/ citi2en of state of residence
b. ;:an without a country=/ no diersity jd
ii. Corporations (41##"c)/ citi2ens of both state where incorporated and state of principal place of
1. 0o determine principal place of business, apply 1 of # tests
a. ;7ere Center 0est= A where officers and corporate $B e*ist
b. ;:uscle 0est= A where bulk of manufacturing is done or bulk of serices are
c. Combination of the first " tests
iii. 5nincorporated Associations / cumulatie citi2enship of all its members
1. (ncludes labor unions, partnerships, political parties, charitable organi2ations, etc
". Cule has the effect of reducing diersity of citi2enship claims with these groups
i. Cepresentatie Actions (41##"c")/ citi2enship determined by looking at the representatie, not the
entire represented group
1. (ncludes infants, incompetents, the infirm, deceased, shareholders, members of a class
". Dawyers try to createEdestroy diersity in selecting the representatie(s)
#. Class Action 1airness Act/ didn,t pass, but would hae allowed all class actions to be
moed to fed court if minimal diersity e*ists (effectiely would hae moed them all)
d. Ru#e 2$ Amount in controvers- must e3ceed 456&777
i. Amount in controersy must e*ceed F)&G e*clusie of interest and costs (41##"a)
1. ?laintiff may aggregate claims proided they arise from the same common ne*us (Cule
1H, 41#')b), and proided it doesn,t destroy diersity
a. +ingle plaintiffEdef/ same case or controersy, aggregate
b. +ingle plaintiffEdef/ disparate eents, usually aggregate
c. Different plaintiffs/ no aggregation if they hae separate and distinct claims- but
when they unite to enforce a single title or right, in which they share a common
and undiided interests, they may aggregate
". @ach member of a class action must hae a claim of F)&G to get to federal court (#ahn v.
$nternational Paper)
a. 0his literally means the doors are closed to small claims, diersity9based class
action suits
b. Creatie attorneys seek to bypass the effects of Zahn by hooking state claims to
a fed .uestion under 41#')
ii. Court accepts plaintiff,s claim for relief unless they are coninced to a legal certainty that plaintiff
can,t recoer amount claimed
41#') only applies to subject matter jd>doesn,t satisfy personal jd or serice of process
Codified the seminal case United Mine Workers v. Gibbs Courts %!ve discretion!r- po'er to %e!r <urisdiction!##-1
insu((icient st!te c#!ims derivin= (rom ! common nuc#eus o( oper!tive (!cts in '%ic% t%ere is ! su,st!nti!# (eder!# issue
41#')(a)/ grants supplemental jd oer all claims that form part of the same case or controersy under Article (((
o ;Case or controersy= embraces eerything within a common nucleus of operatie fact (C7I1)
41#')(b)/ prohibited use of supplemental jd when the case is based solely on diersity jd, and the jurisdictionally
insufficient claim is by a plaintiff against persons made a party under/
o Cule 1%/ third9party defendants
o Cule 13, "J/ permissie and compulsory joinder
o Cule "%/ interention
(f def,s counterclaim is compulsory under Cule 1#a (same 0KI), then court will allow ancillary jd
oer the counterclaim
(f counterclaim is permissie under Cule 1#b, it will not
41#')(c)/ grants district courts discretion to decline to e*ercise supplemental jd if/
o +tate9based claim is noel and comple*, or it is really the guts of the action
o 1ederal .uestion claim has been dismissed
Must est!,#is% ori=in!#& su,<ect m!tter <urisdiction ,e(ore -ou c!n est!,#is% supp#ement!# <urisdiction>
%nited Mine &orkers v. 'i!!s/ Libbs brought suit against 5:8 and alleged (1) claim under 4#J# (completely
federal) and (") common law tort claim (state law) Mpendent claim jdN
o ?rior to this case the state claim would hae to be tried separately, in state court (no federal issue and no
diersity of citi2enship to moe it to fed court)
o Court oerruled Constitution to allow Libbs to try both claims together in federal court
o (mpact supplemental jd granted when there is a ;common nucleus of operatie fact= and cases would
normally be triable together (i.e. not murder O diorce)
CNO" !,!ndons T@O (;transaction and occurrence= test created by Rule 13a)
CNO" is !,out tr-in= #iAe t%in=s to=et%er
(ldin"er v. Howard/ court refuses to bring in an additional party under pendent jurisdiction when there is no
independent basis of federal jurisdiction (party couldn,t come in on fed .uestion jd)
o Cepresents the first pullback from Gibbs
)wen E*uipment + Erection Co v. ,ro"er/ +C refuses to allow pendent jurisdiction for additional parties (here
under def,s compulsory counterclaim), says independent jd is re.uired for new parties Mpendent party jdN
o Conenience of litigants and judicial economy cannot justify e*tension of supplemental jd oer non9dierse
-inley v. %/ ruling that ultimately led to enactment of 41#')
o 1inley brought partial diersity suit (original claim was under federal statute, claim was amended to include
state9law tort claims)
o +C ruled that plaintiff had to choose>pursue state9law claims in state court or pursue claim against 5+ in
fed court said that ;all our cases hae held that a grant of jurisdiction oer claims inoling particular
parties does not itself confer jd oer additional claims by or against different parties=
+C essentially said they know this isn,t the right solution>inited Congress to rule otherwise
8ithin one year , 41#') was enacted
T%ree Questions to Determine Person!# Jurisdiction
1. (s there a traditional base of personal jurisdiction!
". (f there,s no traditional base, does the long9arm statute apply!
#. (f no traditional base but long arm statute applies, is its application Constitutional!
0erritorialityE+oereignty / state has e*clusie jd oer people and property within its borders (established in
Pennoyer v. Ne.., reaffirmed in /urnham)
Domiciliary / state has jurisdiction oer its domiciliaries regardless of where they are located
o Pou don,t lose domicile until you ac.uire a new one
?hysical presence
(ntent to remain indefinitely
Agent / if an agent is acting in the interest of the indiidual then he carries jd
o (f state can grab agent, is effectually grabbing the indiidual
Consent / methods of consent to personal jd
o @*press Consent consent by contract (Carnival Cruise Lines)
Dast word on jd comes out strongly in faor of forum selection clauses
5pheld for aliens in /remen v. #apata
Court leaes some wiggle room to rethink if contractually selected forum is irrational>;judicial
scrutiny for fundamental fairness=
Imp#ied Consent special e*ception to territoriality in the interests of the public safety, limits implied
consent to proceedings deriing from accidents or collisions on highway
Driing in a state Q implied consent to appointment of the state registrar as agent for receipt
process in all actions arising out of an accident or collision (Hess v. Pawloski;
o Consent is also gien when def fails to assert it as a defense (Rule 12b2 must be asserted early in the trial)
Corporate ?resence / jd in state where incorporated and state where doing business
Minimum Cont!cts Tests
1. Continuous and systematic contact with the state O a cause of action that arises from those contacts always hae
general jurisdictionR
a. nternational !hoe is a clear e*ample, "ur#er $in# may also fall into this category
". Continuous and systematic contact with the state O a cause of action that doesn,t arise from those contacts always
hae general jurisdictionR (f hae continuous and systematic contact, it,s immaterial where the cause of action lies
a. i.e. %erkins
#. (solated and sporadic contact with the state O a cause of action that arises from those contacts possibly hae
specific jurisdiction, depends on the nature of the conduct
a. i.e. &ess v. %a'loski>most of the cases we look at our Category #
%. (solated and sporadic contact with the state O a cause of action that doesn,t arise from those contacts neer hae
a. i.e. &anson v. (enckla, &elicopteros
?ermits state to obtain jd oer persons not physically present in state at time of serice
6asic e*am .uestion read the statute and determine if it is applicable or inapplicable
o (f it is applicable, turn to #
.uestion (the meat of the answerR)
1. SPECI"ICDSINCLE ACT JURISDICTION subject matter of the action must relateEhae a specific connection
to the forum state (long9arm statutes)
o $nternational hoe/ minimum contacts with the forum state (some relationship with forum, some actiity
with forum) direct foreseeability, enough to e.ual fair play and substantial justice
i. (f standard not met, jd iolates def,s 1%
Amendment right to due process
o 'ray v. (merican 0adiator/ (1) was tortious act committed in forum state! (") if yes, is the assertion of jd
i. Court says tortious act occurs where the conse.uences of the act are felt (this isn,t the ineitable
reading>can be iewed either way)
ii. Constitutionality determined based on ntl !hoe and 1%
Amend re.uirement
Stre!m o( Commerce E Purpose(u# Av!i#mentD)o#unt!r- A((i#i!tion
o Mc'ee v. $ntl Li.e/ jd oer out9of9state def e*ists because def took actions that were purposefully directed
towards the forum state (knowingly entered into a transaction with a citi2en of a forum state)
o Hanson v. Denckla/ minimum contacts must be olitional
i. Def must purposefully aail himself of the priilege of doing business in the state, thereby
inoking the benefits and protections of its laws
o &orld1&ide Volkswa"en/ foreseeability is not enough def,s conduct and connection with forum state
must be such that he should hae reasonably anticipated being haled into court there
i. Affirms minimum contacts re.uirement, but emphasi2es concern for def in light of other releant
1. 1orum state,s interest in adjudicating the dispute (McGee)
". ?laintiff,s interest in obtaining conenient and effectie relief (&ess)
#. (nterstate judicial system,s interest in obtaining the most efficient resolution of
%. +tates, shared interest in furthering social policy
o ,ulko/ reaffirms &anson v. (enckla, and states that een if the long9arm statute applies, there must be
purposeful aailment of the benefits and protections of the state,s laws
o /ur"er ,in"/ plaintiff,s burden to show contacts, then burden shifts to def to show lack of reasonableness
Stre!m o( Commerce PLUS
o (sahi Metal/ is putting products into the stream of commerce enough to establish personal jd!
i. % justices say yes
ii. % others say must be accompanied by conduct specifically directed towards the forum
1. @ssentially, def,s knowledge that products are sold in state may be enough, but if contact
is the only one with forum state, may still be unreasonable for def to defend there
iii. :inimum contacts set aside and case is decided on issues of fair play and substantial justice
E#ectronic Commerce D Internet
o Cy!ersell/ website adertisements insufficient
". CENERAL JURISDICTION continuous and systematic association with forum means it isn,t unreasonable to
ask def to appear in unrelated suits there (ery few general jd cases)
o -inn (ir/ paradigm general jd case presence of an office in 7P established continuous and systematic
contact (didn,t matter that the office couldn,t actually do any business)
o Perkins/ establishes general jd een if continuous and systematic actiity was established after the claim
i. 6enguet moed to I$ after the claim arose- +C says I$ can take case if they want to
o Helicopteros/ sporadic contacts not held to be sufficient
i. Difference between contacts that ;arise out of= (majority) and contacts that are ;related to=
(dissent) the cause of action, when looking at general jd
#. JURISDICTION ASED ON PROPERT* if you can,t bring suit against a person because he is not in that
state, you can bring suit against whateer property he has there>650 must apply !hoe re.uirementsR
)uasi in rem/ jd oer person by attaching property and treating it as the person- judgment can only be for property
n rem/ case is about property itself state can adjudicate title and interests to any property within its boundaries
o Harris v. /alk/ e*tends *uasi in rem to debts debt is located whereer debtor is
o v. Heitner/ all assertions of state9court jd must be ealuated based on !hoe and its progeny
i. :inimum contacts and notions of fair play and substantial justice now apply to property cases
ii. Doesn,t kill *uasi in rem entirely, but seerely limits its use (to gap between state,s long9arm
statute and 1%
Amend Due ?rocess right)
o (n diersity cases/ can use state,s long9arm statute Rule +k1,
o (n federal .uestion cases/ same as aboe when statute is without jurisdiction proision
i. +ome statutes include jd proision (i.e. whereer def is found, whereer act occurred, etc)
ii. 8hen states hae shorter long9arm statutes and there is a jurisdictional gap Rule +k2 federal
long9arm statute applies
1. Allows nationwide serice of process if there are minimum contacts with the 5+ but
can,t get jd oer def in any state, no sufficient fed court in any state
". )mni Capital/ if there is a fed .uestion case and the state long9arm statute is weak, then
fed court can use %k" if there is no other court aailable
a. +tate court/ def is allowed to make special appearance contesting personal jd
o +ome states allow def to appear to defend a *uasi in rem suit without becoming subject to personal jd
b. 1ed Court/ def can (and must, or he waies his right) challenge jd in an answer or a pre9answer motion
c. Mullane v. Central Hanover /ank/ Notice must ,e re!son!,#- c!#cu#!ted under t%e circumst!nces to =ive
!ctu!# notice& and must afford a reasonable time for those interested to appear
o 8hen they reside outside of the state and their names and addresses are aailable, notice by publication is
d. Lroups to be identified and proided notice appropriately/
o Gnown beneficiaries (address known) direct notice (by mail in this case) is re.uired
o 5nknown beneficiaries (changed address, beneficiary died) use due diligence to find class members- if
you can,t then publication may be okay>reasonable effort to gie notice needed
o Contingent interests/ future beneficiaries get no notice, because not currently ested
a. 8hether proper notice was gien is a fact9specific analysis of whether the method was reasonably calculated under
the circumstances to gie actual notice
o 8hat matters is the appropriateness, not whether or not def actually got notice
Due process re.uires that def be gien a reasonable opportunity to deelop his case
Rule 12a and most state statutes gie the def "J days after serice to respond
:ajor application in this part of the rule is in debtorEcreditor situations (i.e. repossessions)
+C created re.uirements to satisfy due process protections (niadach2 -uentes2 'old!er")
o Inly judge can make decision on repossession- only judge can decide to issue writ of attachment
o @ery debtor must be gien a right to be heard immediately after repossession- many states hae asked
creditor to make prima facie case and post a bond
o 0he following interest must be taken into account when attaching property/ (1) debtor,s property interest,
(") risk of erroneous depriation, (#) interest of the party seeking remedy (Connecticut v. Doehr)
:ust follow the rules of the state or Rule + re!son!,#- c!#cu#!ted under t%e circumst!nces to succeed (Mullane)
Inly once a court has determined it has personal jd can it effect alid serice of process outside the state
Pou can,t enticeEtrick people into the state to sere process (Tickle v. /arton2 &yman v. Newhouse)
7o immunity from serice of process if oluntarily in state (een if in prison) (ivnksty)
o 6ut court will sometimes immuni2e a party from serice of process/
8itnesses, parties, and attorneys who come to a state to participate in a lawsuit are often granted
immunity from serice of process in other suits
(mmunity may not be e*tended to a plaintiff who oluntarily enters the state to further his or her
own interests by bringing an action there
+tate methods ary most common was to delier summons and complaint to def in hand or icinity
o 7ow all states recogni2e substituted serice
1. ?ersonal Deliery
a. 7atural persons/ in the hand of the def, sered at his house or usual place of abode
b. Artificial entities/ serice can be deliered to an officer or agent of the entity (some dispute about who
.ualifies as such an agent)
". +erice by :ail (form of substituted serice) A must be certi-ied mail
a. Rule +d letter sent with copy of the complaint and a waier- def can waie process, but if chooses not to
(or doesn,t respond), he will be sered in person and charged for the cost of hand deliery
#. +erice on a ?erson Cesiding in Def,s Dwelling (form of substituted serice)
a. Rule +e2 serice must be left with a person of suitable age and discretion who resides at the dwelling
%. Deliery to an Agent Authori2ed by Appointment (form of substituted serice)
a. Rule +d1 serice may be proided to an agent if there is eidence that def authori2ed the agent
i. 3ukhent/ party may appoint an agent contractually een when he doesn,t personally know that
agent, proided the agent promptly accepts and transmits notice (een if not re.uired to do so)
&. ?ublication
a. 1ed Cule % doesn,t authori2e serice by publication
i. 6ut Rule +e1 says fed court can use serice rules in state where it sits or where serice is effected
b. +tate statutes proide that serice may be made by publication when plaintiff has demonstrated that def
can,t be reasonably sered by any other method
c. 7otice by publication is rarely acceptable>only if can,t get to indiidual by any other method, and if
reasonable inestigation fails to reeal an address
'. +erice on Artificial @ntitites
a. Rule +h authori2es serice to an officer, managing agent or general agent when def is a corporation,
partnership, unincorporated association, etc that is subject to suit under a common name
). Class Actions
a. +ometimes publication O actual notice to a sample of class members suffices
TERRITOR* A Rule +k1
1or both diersity and fed .uestion cases, serice of process may be made only (1) within the territorial limits of the
state in which the district court sits, or (") anywhere else permitted by the state law of the state where court sits
Rule +k1" serice of process permitted within 1JJ mile radius of district court, but only applies where out9of9
state parties brought in as additional parties to an already pending action
o Salid parties are/ #
party defendants and ;indispensable parties=
Congress can proide for nationwide serice of process in certain types of cases
After process9sered has deliered the papers, she must file a return, which should disclose enough facts to demonstrate that
def has actually been sered and gien notice to appear in court
?roper return is ordinarily necessary for trial court to conclude that is has jurisdiction
1ederal Court
Rule 3 in federal court, filing of complaint constitutes commencement of the action
Rule +m re.uires fed court to dismiss an action when the def hasn,t been sered within 1"J days of the filing of
the complaint (if plaintiff fails to show a good cause for not completing serice within that time)
Rule .b allows plaintiff to re.uest e*tra time to sere summons and complaint
Rule 12b/ motion to dismiss for insufficiency of serice of process
o Considered waied if not made by motion or in responsie pleading
+tate Court/ when cause of action is based on state law
(n some states, cause of action is commenced by serice of process
Senue deals with the allocation of a case within a court system that has jurisdiction oer that case
o Turisdiction oer parties must be established first
Senue challenge must be raised particularly early by def, otherwise it is waied Rule 12b3
o Senue is waiable because it is an issue of allocation or conenience, not a constitutional issue
T%ree Questions to Determine Proper )enue
1. Does the court hae enue under the statutory structure (each state is different)!
". (f the court has enue, can the court transfer it!
#. (f the court has enue, are there situations where we should transfer it anyway A -orum non conveniens0
QUESTION +. Does t%e court %!ve venue under t%e st!tutor- structureF
1. )enue in "eder!# Actions 9+0G+ which court shall try the action!
a. 41#31(a) Diersity cases may be brought only in federal court
i. 8here any def resides (not the same as citi2enship) if all defendants reside in the same state
ii. 8here substantial portion of eents occurred or where substantial part of the property is situated
iii. (f and only if neither of the first " apply, then enue e*ists in a judicial district in which the
defendant is subject to personal jd at the time the action is commenced
b. 41#31(b) 1ed Buestion K :i*ed DiersityE1ed Buestion cases may be brought only in federal court
i. 8here any def resides (not the same as citi2enship) if all defendants reside in the same state
ii. 8here substantial portion of the eents giing rise to the complaint occurred, or where substantial
part of the property that is the subject of the action is situated
iii. (f and only if neither of the first " apply, then enue e*ists in any judicial district in which the def
may be found (usually means whereer personal jd e*ists at time action is commenced)
c. 7ote on corporations and aliens for purpose of enue
i. Corporations reside in any district where subject to personal jd at the start of the action 41#31(c)
ii. Aliens may be sued in any district 41#31(d9f)
d. Cemoal / 41%%1 (a) says that when a case is remoed to federal court, the fed court encompasses the place
where the state action is pending, so it,s irreleant that the fed court wouldn,t hae been a place of proper
enue originally
e. Docal action / in cases inoling land, the action must be brought in the state in which the land is located
(Livin"ston v. 4e..erson)- if property is located in more than one state, enue is proper in both 41#3"
i. 0ransitory action / one in which the court will try the case een though the suit relates to land
outside the state (0easor1Hill) if a local action can,t be brought where the property is because
of lack of jd oer the def, the action may be brought in the state where the def resides
". St!te Courts 1actors state courts consider in deciding whether to dismiss for -orum non conveniens
a. 8hether the plaintiff is a state resident>if so, plaintiff has stronger claim to hae case heard in home state
b. 8hether witnesses and sources of proof are more aailable in different state or county
c. 8hether forum,s own state laws will goern the action
QUESTION /$ I( t%e court %!s venue& c!n t%e court tr!ns(er itF
1. 41%J%(a) ;1or the conenience of parties and witnesses, in the interest of justice, a district court may transfer any
ciil action to any other district or diision where it might hae been brought=
a. :otion to transfer almost inariably made by def, and burden is on moant to show why
b. 0ransferee forum must be one in which the original claim could hae been brought ( v. /laski)
c. T%e #!' o( t%e tr!ns(eror court must !pp#-
i. Lenerally only applicable to diersity cases- consensus against applying to fed .uestion cases
". 41%J) Allows cases with the same common nucleus of operatie facts to be transferred to a single court for
consolidated pre9trial hearings
a. Cases must be returned to transferor court for trials, unless get parties, consent or inoke 41%J%(a)
QUESTION 0$ Situ!tions '%ere 'e s%ou#d tr!ns(er it !n-'!-H.orum non conveniensF
1. Lenerally -orum non conveniens e*ists because the transfer is impossible
a. Can,t transfer state9to9state, federal9to9state, 5+ to foreign court
". Forum non conveniens works when it really makes no sense to litigate in the gien court
#. 0here is a presumption in faor of plaintiff,s forum choice, so -orum non motions and transfers are rare
a. Declaring -orum non conveniens results in an actual dismissal or action, so plaintiff must initiate again
b. 6ecause of this harsh outcome, court may grant motion on condition(s)/
i. Def identifies an alternatie forum
ii. Def,s consent to jurisdiction in the other forum, waiing statute of limitations in the other forum<
%. Piper (ircra.t/ plaintiff can,t defeat a motion to dismiss merely by showing that the substantie law of the
alternatie forum is less faorable to him than that of the current forum
a. Court accepts the possibility that changing forum may affect the outcome, but says need to weigh that
possibility with other interests/
i. ?riate interests conenience of litigants and litigation elements (witnesses, documents, etc)
ii. ?ublic interests which courtEenue is really interested in adjudicating the case
41%%1 authori2es defendants to remoe a jurisdictional claim from state court to federal court (one9way streetR)
Can only remoe an action that could hae been brought in the federal court originally basis for federal jd must
appear as part of the complaint
Inly the original def can remoe (way of protecting federal forum choice)
o ?laintiff has the burden of remanding to state court if he wishes
Diersity case only defs who are non9citi2ens of forum state can remoe
o (f there are multiple defs, all must be non9citi2ens of forum state to remoe
o Diersity case can,t be remoed if there are multiple claims, and at least one is not remoable
1ederal Buestion case action is remoable by any def regardless of parties, citi2enship
o 41%%1(c) allows remoing def to remoe not only the federal .uestion, but also the otherwise unremoable
state matter, when joined with fed .uestion
?reents plaintiff from adding state claims in order to preent remoal
District Court has discretion to accept state claims along with the federal claim, or just the fed .uestion claim itself
41#')(c) allows the fed district court to remand a claim if state claims predominate
Cemoal is entirely ertical def remoes to fed district court that coers the original state court
o Def can seek to transfer to another fed court once action has been remoed
Cemoal is considered waied if def takes a substantial defensie action (i.e. counterclaims plaintiff) before filing for
1. +ubject :atter jd is neer waied
". ?ersonal jd, 7otice, +erice of ?rocess, and Senue are all waiable
a. 0hey are t%res%o#d de(enses must ,e r!ised ,- ! pre1!ns'er motion or !sserted in t%e !ns'er& or
e#se t%e- !re tre!ted !s '!ived
b. Rule 121#23 121h2 any threshold defense you don,t put in 1
motion can,t be raised in "
i. (f you omit a threshold defense, can,t een put it in your answer
c. (f you make a threshold defense motion and lose, go one with the case and can subse.uently appeal it
Ild Cule wi.t v. Tyson
1ederal courts sitting in diersity had to follow state statutes and constitutions, but did not need to follow state
common law (the ;unwritten law=)
Tudge +tory wanted federal courts could pursue general common law, so commercial transactions would be uniform
across the country
0$(+ D(D7,0 $A??@7 adent of railroads tore apart the simplistic notion of federal common law
7ew Cules
"eder!# Ru#es
o 8here there is no releant 1ederal Cule or other Cule pursuant to the @nabling Act and the federal rule at
issue is wholly judge9made, Cules of Decision>construed in 4rie and 5ork>control
o 8here the matter in issue is coered by a 1ederal Cule, the Cules @nabling Act constitutes the releant
standard. (&anna)
o 0here is a real difference between ;substance= under 4rie and under Cules @nabling Act.
4rie bars any federal court attempt to create state substantie rights- Cules @nabling prohibits
abridgement, enlargement, or modification of substantie rights
Courts could not create a Cule with one statute of limitations
Congress could change statutes of limitations for federal statutes but not for state laws
Hanna An!#-sis
o (1) (s there a 1ederal Cule, gien its plain meaning, that is sufficiently broad to control the issue!
(f not, then 4rie E 5ork
o (") (f so, is the Cule within the scope of Cules @nabling Act (does it abridge, enlarge or modify a
substantie right)!
o (#) (f not, does the rule e*ceed its constitutional grant of power under due process and 7ecessary and
T%e Erie Doctrine
1. Erie v. Tompkins/ E3cept in m!tters =overned ,- t%e Constitution or Acts o( Con=ress& (eder!# courts sittin=
in diversit- c!ses must !pp#- t%e su,st!ntive 8inc#udin= common; #!' o( t%e (orum st!te
a. Ierruled !'i-t v. 67son, created/
i. 6ecause it creates ine.uity haing two bodies of common law would ineitably create forum9
ii. 6ecause it is unconstitutional nothing in Art ((( gies federal courts the power to generate fed
common law
0win aims of 4rie/ prevent (orum s%oppin=& ineJuit!,#e !dministr!tion o( t%e #!'
". 'uaranty v. 5ork/ I%en t%e st!te st!tute !((ects t%e ver- possi,i#it- o( recover- 8!s ! st!tute o( #imit!tions
does in t%is c!se; t%e st!tute ,e!rs vit!##-& !nd not mere#- (orm!##- or ne=#i=i,#-& on t%e St!te1cre!ted ri=%t&
!nd t%e (eder!# court s%ou#d (o##o' st!te #!'
a. 5ork Iutcome9determinatie test whether or not disregarding state law would significantly affect result
b. Difference between substantie and procedural law
i. +ubstantie law Q any law that proides a cause of action, network of rightEduty relations
ii. ?rocedural law Q methodology of effectuating substantie rights
c. 8ant to aoid forum shopping between state and federal courts
"ed court is !n e3tension o( t%e st!te court& !t #e!st in diversit- c!ses
#. 0a"an/ affirmed 5ork>federal court in diersity had to follow state rule for statute of limitations, because there was
no conflict between the state statute and the fed rules
%. /yrd v. /lue 0id"e/ when issue is procedural and no fed rule or statute is on point, balance 5ork8s outcome9
determinatie test with federal and state interests
a. "7rd 6alancing test
i. @aluation of significance of state policy
ii. Counterailing federal consideration>influence, if not command of the )
iii. ?robability of an outcome differential>is the issue really outcome9determinatie!
b. Also consider outcome9determinatieness, forum9shopping, etc
&. Hanna v. Plumer/ federal rules trump state policy when they are both applicable and they don,t iolate the Cules
@nabling Act
a. :ay not abridge, enlarge, or modify the substantie rights of any litigant
b. Court holds that Cule %d (serice of process) neither e*ceeds the mandate of the Cules @nabling Act nor the
Constitution and is therefore the standard against which district court should measure ade.uacy of serice
'. +ubse.uent application /
a. &alker v. (rmco teel/ reaffirms Ra#an>a fed rule only trumps state law when it is on point toEdirectly
conflicts with the particular state issue in front of the court
i. $ere the court held that Rule 3 wasn,t intended to apply to measuring a state statute of limitations,
so it doesn,t conflict with state statute of limitations, and doesn,t iolate Cules @nabling Act
b. tewart v. 0icoh/ court says this is an easy case>there is a fed statute, and fed law is supreme
i. Court goes through &anna analysis/
1. (s the statute sufficiently broad to control the issue before the court!
". Does the statute represent a alid e*ercise of Congress, authority under Constitution!
ii. +ee tension between 4rie95ork and "7rd9&anna just because there is a federal statute, court
shouldn,t be blind to ery alid state interest (here issue is about state substantie contract law)
c. 'asperini/ latest word on the 4rie doctrine- a bit of an aardark
i. :ajority said this was an 4rie95ork problem, so accommodates both state and federal policies
1. Court finds that 7P damages statute is in conflict with +eenth Amendment, though it
neertheless affects a substantie state9created right
ii. Dissent says it,s a &anna .uestion>trumps 4rie95ork>so 1ed Cule applies
!sed on tewart !nd 'asperini& c!n see t%!t court is =oin= to tr- '%enever it c!n to !ccommod!te t%e
t'o ,odies o( #!'
8hen you look at an 4rie9influenced case, it,s as if you,re looking at it through four different lenses/
1. 4rie lens Q about the supremacy of state substantie law
". 5ork lens Q about outcome9determination
#. &anna lens Q about collisionEconflict of fed and state laws
%. "7rd lens Q about the weight of state policy
$ow should a federal court determine state law!
(n theory, fed courts are bound by the highest court of the state in which they sit- also bound by intermediate courts
of appeal
1ed judges do at times apply laws of an adjacent stateEstate whose jurisprudence is compatible with the forum state
:ost states hae enacted certification statutes, allowing fed courts to certify oer certain .uestions to a state court
1. ,la6on v. tentor/ in order to promote desired uniform application of substantie law within a state, (eder!# courts
must !pp#- con(#icts1o(1#!' ru#es o( st!tes in '%ic% t%e- sit (includes choice of law)
a. 1ederal courts applying state law typically attempt to determine how the highest court in the state would
hold in a gien caseEwhat law the highest state court would apply
b. :iller 0his is one of the most hated cases of the 4rie doctrineR
". Mason v. (merican Emery &heel &orks/ a state court,s ruling on an issue needn,t be followed by a fed court if
that ruling has lost its itality
a. 1ed court here rules that a state could would oerrule its own precedent
b. :iller 0his case shows how different judges hae different opinions on howEwhat law applied
i. 8hether applying static law or trying to foresee future holdings
ii. 8hether fed judge is trying to behae like a trial judge or an appellate judge
#. Mc,enna v. )rtho/ fed court holds that a state court would reach a gien decision based on the actions of the state
4rie court says federal courts can,t generate general federal common law
1ed courts do generate specific common law, when there is a reason to trump state law
o +ubstantial federal interest
1ederal .uestion cases
Clear.ield Trust/ common law controls when the goernment,s interest is strongly implicated-
when it does not, and the dispute is between priate parties, state law controls
8hen talking about treasury of the 5+ (highest national interest), if there isn,t a fed
statute on the issue, fed courts are free to establish fed common law to define the rights
and responsibilities of the federal goernment
o 1ederal statutesEregulations
Iften deelop federal common law when .uestion e*ists whether there is a priate cause of action
for a federal statuteEfederal regulation (i.e. 1DA, +@C)
o 5nforeseen ;gaps= in federal statute (;implied federal law=)
:ost common gap is lack of limitations
o 0raditionEnecessaryEspecial competence
1oreign relations, admiralty and maritime, etc
5nclear when federal courts will generate federal common law>challenging subject
Inverse Erie/ results when a federal substantie right is being adjudicated in a state court
o +tate is obliged, under the supremacy clause, to apply federal law
o +tate decision is neer controlling on .uestion of what the incidence of any federal right may be
Dice v. (kron2 Canton/ inerse94rie, inerse9"7rd
o $ow is state court to behae when it has to adjudicate a federally created right!
4rie is irreleant, but +upremacy Clause is not>must uphold all aspects of a federal statute,
including its adjudication terms
/rown v. &estern 0ailway/ blockbuster inerse94rie case
o Creates a tricky situation, asking state to adopt a totally different system of procedural rules (when fed rule
is diametrically opposed to state,s iew on the issue)
?leading is the first phase of the pre9trial process jurisdiction has been chosen, court picked, body of law chosen
$istory of ?leading
o Common Daw pleading/ built on specific, technical rules
o Code pleading/ followed a formal procedural code, but codes were state things>no real fed procedure
o :odern pleading / 1ed Cules greatly simplified structure, has only the complaint and the answer
1unctions of ?leading
o $istorically, pleading sered three functions notice giing, fact reelation, issue formulation
o :odern procedure only assigns notice9giing function to pleadings
:assie discoery, joinder and sophisticated motion practice coer the other two
6asic Documents
o Complaint / initial pleading in a lawsuit, filed by plaintiff
o Answer / def,s response, states defenses to each claim and admits or denies each count
o Ceply / re.uired if def asserts counterclaim- plaintiff can also obtain court order to allow reply
"our prim!r- !re!s o( (ocus on p#e!din=
1. +tandard of particularity of pleading
". +pecial pleading rules
#. Amendments of pleadings>relation9back
%. Cesponding to the complaint
Ru#e K ery low pleading threshold>don,t hae to plead facts or a cause of action
o Rule 8a1 must gie statement of why this particular court (subject matter jd)
o Rule 8a2 pleading should be a short, concise statement of facts
o Rule 8a3 prayer for relief, where you state what you want (ad damnum)
'illespie v. 'oodyear/ court asks for a plain and concise statement of the facts constituting a cause of action
o 8ants enough so def can identify the matter in the suit and prepareEprotect himself
o 8ants enough so court can apply law to the facts stating legal conclusions isn,t enough
Dio"uardi v. Durnin"/ court says the pleading is about notice, and showing that plaintiff is entitled to relief
o 8hether plaintiff can proe his claims is different from whether he has pled them ade.uately
o 6y not using code language (i.e. ;cause of action=) court reminds us that we are no longer in the code
system>cause of action isn,t the focal point
?lead claims and an entitlement to reliefR
o Rule 8a2 (reinforced by 12b. motion, asking has plaintiff stated a claim!) claim Q entitled to relief
Conley v. 'i!son/ reaffirms simplicity of pleading and Rule 8a2
o Can,t dismiss under 1"b' unless legal certainty that there is no basis for recoery
'arcia v. Hilton Hotels/ def makes 1"e motion for a more definitie statement
o Court grants, says it is unreasonable to re.uire def to prepare a responsie pleading without a more
definitie statement of the pertinent facts
Buestionable decision 1"e re.uires statement to be ;so ague and ambiguous that a party
cannot reasonably be re.uired to frame a responsie pleading=
Lenerally 1"e is a narrow rule with a limited scope of application>just asks can you form a
responsie pleading!
Gillespie, (io#uardi show how a different leel of particularity is re.uired by different courts
Ru#e G creates different allocations of pleading and proof burden based on claim type
o Rule :b re.uires fraud circumstances to be stated e*plicitly, but maliceEintent generally
o Rule :c once plaintiff aers generally that all conditions precedent hae been performed or hae
occurred, burden shifts to def to find and identify any conditions precedent that plaintiff hasn,t performed
o Rule :# when items of special damage are claimed, they shall be stated specifically
;+pecial damages= are those not foreseeable under such a claim as it is brought
Denny v. Carey/ plaintiff didn,t gie def a lot of information- def files 1"b' motion, claiming that Rule :b places a
rigorous burden of pleading on the plaintiff
o Court found that the complaint satisfied 3b 3b only re.uires slightly more notice than would be
forthcoming under Rule 8>the re.uirement is met when there is sufficient identification of the
circumstances constituting fraud so that def can prepare an ade.uate answer to the allegations
o Contrast in Denny v. /ar!er court took opposite iew in similar circumstances, upping re.uirement
wierkiewic3 v. orema/ no heightened pleading rules>Ha" should be uniformly applied
Dura Pharmaceuticals/ +C,s latest holding on this issue
o Rule 8 permits e*traordinary fle*ibility in the pleading acknowledges that at the pleading stage, plaintiff
might not know e*actly what happened
o Allows alternatie and inconsistent pleadings>which was prohibited under the Code
Ru#e Ke/ a party can set forth two or more statements of a claim or defense alternatiely or hypothetically
o 5nlike common law re.uirements, don,t hae to combine in one statement can set forth either in one
countEdefense or in separate countsEdefenses
o i.e. ( didn,t borrow your pot- when ( borrowed your pot it was already damaged- ( returned your pot
#iervo"el v. 0oyal Packin"/ def argued that certain ;special= damages plaintiff claimed during trial weren,t
e*pressly stated in the complaint, and should be considered
o Court holds that non9obious physical eidence has to be stated in pleading
Close decision>reasonably people could disagree- court probably making an e*ample to show
states that they need to follow Rule :#
Ru#e K!0 claim shall include a demand for judgment for the relief that plaintiff seeks
/ail v. Cunnin"ham/ plaintiffs tend to inflate ad damnum amount, so see few "ail9type cases
o Ceasons for haing clause at all/ (1) other party may default if sees amount and thinks it will likely lose,
and (") eidence for jurisdictional amount
Ru#e 62c demand for judgment
o Tudgment by default shall not be different in kind or e*ceed amount prayed for in demand
o @*cept as in default, eery final judgment shall grant the relief to which the party in whose faor it is
rendered is entitled, een if the party has not demanded such relief in pleadings
(n theory, the answer is supposed to come in on the heels of the complaint, but standard defense techni.ue is to
make a lot of motions and delay answering
0ypical answer has 1, " or # sections in it/
o ?art 1 Cesponse to the complaint responds ;allegation by allegation=
Cener!# Deni!#/ deny each and eery allegation
Speci(ic Deni!#/ deny specific allegations of particular paragraph or count in complaint
Qu!#i(ied Deni!#/ deny a particular portion or a particular allegation
Deni!# o( Ano'#ed=e o( in(orm!tion/ say you don,t hae enough info to form a belief Rule 8b
Deni!# ,!sed on in(orm!tion !nd ,e#ie(/ say reasonably beliee allegation is false
o ?art " Affirmatie defenses
Ild rules/ had to put up or shut up in the first response
:odern rules/ can respond inconsistently if you don,t hae the full story
Rule 8c lists 13 affirmatie defenses (contributory negligence, duress, estoppel, etc)
Gicker is last clause/ ;<and any other matter constituting an aoidance or affirmatie
defense= hae to plead anything like other 13, anything that might surprise other side
o ?art # Defendant,s complaints
party claims
Ru#e K, E De(ensesL "orms o( deni!#s
;Denials shall fairly meet the substance of the aerments denied=
o #ielinski v. Philadelphia Piers/ def filed a general denial
Denial was ineffectie under Hb re.uires that def deny eerything in good faith
$ere def should hae filed a more specific answer, would hae warned plaintiff that he sued the
wrong defendant
o Rule 11 is about penalties if def denies something in bad faith
Ru#e Kc E A((irm!tive De(enses
8hat fits under the residuary clause! 8hat constitutes surprise!
o ?*PO/ ?laintiff alleges def trespassed on his property, destroyed his bushes and cut his timber. Def
denies. At trial, def starts to show that he owns the property by aderse possession.
Ine of the elements of a claim of trespass is that it is your land>if it,s not, there is no trespass
Could say that def,s denial of trespass embraces a denial of plaintiff,s title, and that he is
therefore free toproe at trial that title belongs to someone else (including himself)
0his isn,t an affirmatie defense, since it directly denies e*istence of a specific element of claim
o Rule 8c was included to ensure there is no surprise as to what defenses will be used
Dikely includes any defense that rests on facts particularly within def,s knowledge
o ?*PO/ ?laintiff accuses def of negligence for a car crash. Def denies. At trial, def starts to introduce
eidence that his car was struck by lightening, which caused the accident.
Dightening bolt was an act of Lod, and def therefore is not negligence
(n a perfect world, would want to re.uire this in the answer, because otherwise it causes surprise
:ay or may not be allowed in if not in the answer, depends on the judge
Motions A=!inst t%e Comp#!int
De(enses !=!inst t%e v!#idit- o( comp#!int>included 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 enue
o Rule 12b+ insufficiency of process
o Rule 12b/ insufficiency of serice of process
o Rule 12b. failure to state a claim upon which relief may be granted
:ust establish that no recoery is possible under any legal theory
5sually made before def files answer>after can make a 1"c motion for ;judgment on pleadings=
o Rule 12b; failure to join a necessary party (under Cule 13)
o :otion for a more definite statement def may make motion under 1"e if complaint is ;so ague or
ambiguous that def cannot reasonably be re.uired to frame a response pleading=
o :otion to strike if plaintiff has included ;redundant, immaterial, impertinent or scandalous= material in
complaint, def may moe under 1"f to hae material stricken from pleading
o (f complaint dismissed, plaintiff will almost always hae the opportunity to amend the complaint
?laintiff may automatically amend if motion made before def files answer Rule 1/a
o (f 1"b motion successful after filing answer, plaintiff may amend with court,s permission (likely)
Ru#e +6 first judicial postulate- liberal rules to ensure claims are decided on merits rather than technicalities
1&a Amendments (pre9trial)
o (f you want to make an early shift (before responsie pleading), just do it but can only be done once
o During pre9trial process, amendments are done only with leae of court or consent of aderse party
;Deae shall be freely gien when justice re.uires=>leae things to discretion of court
5nless there is a ery strong reason to deny leae to amend, court will allow it
o Diberal approach to amendment>by and large, you ask and you get
1&b Amendments to Conform to the @idence (at trial)
o (f eidence inconsistent with pleadings is introduced and the other party doesn,t object, the pleadings are
automatically iewed as haing been amended
o (f the eidence is objected to, court may allow the pleadings to be amended and shall do so freely
6urden is on objecting party to show that they will be prejudiced if amendment is allowed
o Tudge is less likely to sustain this motion>why tying to amend the pleadings now!!
1&a and 1&b are common sense if it looks like party is playing a tactical game, won,t get amendment (i.e. if party
makes amendment multiple times, or is seeking to reflect thing that were unearthed in discoery)
$ard to know the different between a pleading amendment and a pre9trial order
0rial9type amendments emerge when a witness says something surprising, or you get info on the ee of trial
1&c Celation96ack of Amendments (after statute of limitations has run out)
o (ssue isn,t whether to permit the amendment>issue is whether to subject that amendment and its new
claim to a statute of limitations under Hc
o An amendment of pleading relates back to the date of the original pleading when/
(1&c1) relation9back is permitted by the law that proides the applicable statute of limitations
(1&c") the claim or defense asserted in the amended plea arose out of the conduct, transaction, or
occurrence set forth in the original plea (0KI test)
(1&c#) amendment changes the party against whom the claim is asserted and satisfies # conditions/
:ust arise out of the same conduct, transaction, or occurrence as prior claim
:ust be sered within 1"J days after filing the complaint
Correct def must hae known or should hae known suit was instituted and that he was
intended party
o 0esting trick can,t relate back to something that was dead when the original action was instituted
&orthin"ton v. &ilson/ plaintiff sued unnamed police officers- amended complaint 11& days later in include names
o Def moes to dismiss on grounds that amended complaint iolated the statute of limitations
1&c# relation9back standard
Court held that amendment satisfied 1&c, and 1&c trumped state relation9back rule, so claim alid
urowit3 v. Hilton Hotels/ ultimately saying that you don,t hae to be rich or smart to sue>can sue on a document
you don,t understand, can sue without understanding but just because you know you were wronged
o Rule 23.1 re.uires plaintiff,s erification in a deriatie action- here plaintiff didn,t erify suit
o +C held that "#.1 is a limited rule, not designed to allow courts to dismiss when charges of fraud are based
on reasonably belief and careful inestigation, but plaintiff simply doesn,t understand the legalisms
Ru#e ++ re.uires lawyer to signEcertify
o 8arning that you can get into a lot of trouble if you cut it too closely
o CesearchEfailure to research can get you into trouble
o +ee lawyers making ;Cule 11 checks=>more caution is e*ercised when setting up suits
Time (or )!rious P#e!din=s$
1. +erice must normally occur within 1"J days of filing of complaint
". Answer must be sered within "J days of serice of complaint
a. (f def is out of state (sered ia long arm), the time to answer is the state rule (usually longer)
b. (f def makes Rule 12 motion against complaint and loses, def has 1J days after denial to answer
c. (f def re.uests waier and plaintiff grants, def has 'J days from date that re.uest for waier was sent
#. Ceply to counterclaim plaintiff must sere his reply within "J days after serice of the answerEcounterclaim
1ed Cules greatly simplified pleadings to complaint O answer reply may be ordered, but is rarely used
Toinder Coadmap
1. 0rilogy Ine first cousins, the most basic of the multi9party joinder stuff
a. Toinder of claims
b. ?ermissie joinder of parties
c. Compulsory joinder of parties
". 0rilogy 0wo much of this trilogy is really about supplemental jurisdiction
a. Counterclaims
b. Cross9claims
c. 0hird9party claims
#. 0rilogy 0hree
a. (nterpleader
b. (nterention
c. Class action
0rilogy Ine/
Ine sentence for e*am Since Ru#e +K permits !n- c#!ims to ,e <oined& <oinder is proper.
?arty asserting claim for relief may join, either as independent or alternate claims, as many claims as he has against the
opposing party>no 0KI re.uirement
o (f claims are so diergent that things don,t work efficiently or prejudice is created, we can segment out the
pieces with Rule +2b court can order separate trials to aoid the biasEconfusion of trying matters together
1H is a giant intake ale- %" permits the judge to separate out the pieces and package them
0his is permissie, not compulsory making it mandatory might encourage litigation where there isn,t any
7ot all states follow 1ed Cules>may hae a 0KI re.uirement for joinder of claims
0wo sentences for e*am T%e st!nd!rd (or permissive <oinder o( p!rties is common Juestion !nd tr!ns!ction or
occurrence. Since t%e comp#!int !##e=es t%!t !## o( t%e de(end!nts 'ere invo#ved in t%e conspir!c-& t%ere is ! common
Juestion o( conspir!c- !nd ! sin=#e tr!ns!ctionHt%e (orm!tion o( t%e conspir!c-.
Common standard for joining parties/
o (1) you can join anyone whose claims arise out of the same transaction or occurrence
o (") you can join them only if there is a common .uestion tying all parties together
Rule 2< Q transaction or occurrence O common .uestion
o Sirtually guaranteed that if there is 0KI, there will also be CB
o Deals with transactions, not causes of action>so standard isn,t C7I1
8orks for joinder of plaintiffs as well as joinder of defendants
o Tudgment that it,s better to open the door wide than keep it partially closed>better to try like things
together for judicial efficiency
o Ability to join means that when the case is oer you can get more preclusion effect
0hree .uestions to think about for e*am
+. Is t%ere someone out t%ere '%o s%ou#d ,e <oinedF
a. Rule 1:a person shall be joined as a party if/
i. (13a1) outsider,s absence preents granting complete relief to those already inoled
ii. (13a") outsider will be prejudiced, his rights will be impaired or impeded, if he isn,t joined
/. C!n t%e court <oin %imF
a. ?arty may be joined under 13a only if court can sere himEget personal jd oer him, and bringing him in
won,t destroy diersity (subject matter jd)
b. 13a is both a party .uestion and a jurisdiction .uestion (subject matter and personal jd)
0. I( court should <oin %im ,ut c!nMt& '%!t c!n t%e- doF
a. Rule 1:b determination by court when joinder isn,t feasible
b. Court has to decide is this person absolutely essential to the action! Can you proceed without him!
i. 1"b) recogni2es a motion to dismiss for failure to join an indispensable party
ii. 13b is an attempt to aoid dismissals under 1"b) judge must determine if there,s anything he
can do to moe forward, and at least gie relief to the people already inoled
1. (nokes the tradition of the e.uity judge>do what you can, take a guess at missing
party,s claim
a. i.e. if there are # people inoled and one is :(A, maybe assume that person,s
claim is for "&U, and gie each person "&U>if the person materiali2es and is
actually owed more or less, judge can adjust
0rilogy 0wo/
Claim that def makes against plaintiff- counterclaim can basically be anything
+0! Compu#sor- Counterc#!im any claim arising out of the transaction or occurrence that is the subject matter
of the opposing party,s claim
o (f def brings counterclaim, plaintiff is re.uired to bring compulsory counterclaims of his own, if they are
transactionally related
o (f either party fails to assert a compulsory counterclaim, he waies his right to assert it later
+0, Permissive Counterc#!im eerything elseR
o A pleading may state as a counterclaim any claim against an opposing party not arising out of the
transaction or occurrence that is the subject matter of the opposing party,s claim
7ew parties may be brought into suit as part of a counterclaim proided there is jurisdiction
?*PO/ 0wo cars collide on a road- one party gets out and punches the other. (s battery compulsory!
o 0KI test re.uires a pretty good logical relationship between claim and counterclaim in this case, it,s a
different cause of action but a related series of transactions or occurrences
:ost courts would say that this is a compulsory counterclaim
0his seems broad>may embrace things that are separated by time and space
o Cule doesn,t specify conse.uences of non9assertion claim preclusion! Res =udicata!
o I( driver is c!utious& 'i## ,rin= !## c#!ims (or'!rd no'Hi( t%e- !renMt +0!s& t%e-Mre +0,s
Co9parties can cross9claim, as long as they are in the same tier
Cross9claims must arise out of the transaction or occurrence that is the subject matter of the original action or a
counterclaim therein
o 0olerate broad counterclaims because they are about the same fight>but cross9claims are limited because
don,t want the cross9claims to disrupt the original lawsuit
Cross9claims are thus completely permissie and carry a 0KI re.uirement
o $oweer, once get cross9claim under 1#g, then obliged by 1"a compulsory counterclaim to file any
compulsory counterclaims against cross9claiming party
Called imp#e!der in many jurisdictions action for contribution, indemnity, etc
Cule doesn,t specifically say 0KI, but all #
party claims must emanate from the underlying claim logical
relationship, series of 0KIs, etc
5nlike counterclaim and cross9claim, in effect brings a new action
o 6ringing in a new party raises all traditional in personam jd issues
o (f plaintiff can,t get supplemental jd, then has to take claim against #
party to state court due to 41#')(b)
)wen v. ,ro"er/ (f you wouldn,t allow plaintiff to sue Iwen directly, shouldn,t allow her to do
that indirectly by irtue of the #
party defense practice procedure
0rilogy 0hree (briefly)/
5sed by a stakeholder of property who has multiple parties claiming it
5sed because res =udicata doesn,t prohibit subse.uent claimants to sue for same property
?roscribed in both a federal statute and a federal rule
o 41#&)/ F&JJ re.uirement, nationwide jurisdiction (maybe global), creates form of federal jd that only
re.uires minimal diersity of citi2enship
o Rule 22/ F)&G re.uirement, no federal national jurisdiction (must use long9arms), re.uires complete
diersity of citi2enship
Iutsider 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 inoled
Diision between permissie interention and inention as a right
o Rule 2+a/ applicant has a right to interene when either
5+ statute confers an unconditional right to interene, or
Disposition of action may impair or impede applicant,s ability to protect his own interest
:ust demonstrate that interest is not ade.uately represented by e*isting parties
0his rule is the other side of Rule 1:a>persons may be joined when feasible
o Rule 2+b/ applicant may interene when
5+ statute confers a conditional right to interene, or
Applicant,s claim or defense and main action hae a .uestion of law or fact in common
0his rule sounds like other side of Rule 2<a>permissie joiner>though only common
.uestion re.uired here, whereas "Ja re.uires 0KI and CB
:uch less likely to permit if doing so destroys diersity
Designed for efficiency and economy, to aoid confusion of too many parties in court
?ublic interest class actions born with "ro'n v. ">4
(n 13'Js was ehicle for an e*traordinary e*pansion of federal substantie law>ciil rights, consumer,
enironmental, safety, etc
Current debates/ limits of class actions hae we stretched it too far!
Ever- mem,er o( c#!ss must %!ve c#!im in e3cess o( 456N (or (eder!# court
o Appears to go against plain language and intent of 1#'), but held in #ahn and upheld in (!!ott
o 5nlike diersity and enue, which are only re.uired of the class representatie(s)
Person!# <urisdiction '!ived (or !,sent c#!ss mem,ers i( =iven t%ree t%in=s$
o (1) ade.uate representation- (") notice- (#) chance to opt out (Phillips)
C#!ss certi(ic!tion Class certification re.uires seeral prere.uisites>certification has become a big deal
o 0hreshold .uestions that must be answered before certification- implied prere.uisites "#a and "#b
1. :ust hae a class A an identifiable, discreet group
a. Critical element of class action need to figure out who is bound by the judgment
b. Cornerstone of judicial process right to your day in court
i. 1iguratie day in court in class actions make sure it,s used only when
appropriate, and make sure all absent class members are protected (so we
impose prere.uisites)
". ?laintiff representatie must be a member of the class
a. ?laintiff gets standing by being a member of the class (i.e. &eitner3 (ora)
#. 7umerosity re.uirements Rule 23a1
a. Class must be large>at least %J9&J people to demonstrate efficiency and economy
%. Common .uestion of law or fact Rule 23a2
a. Class must be tied together my a common .uestion
b. Dow threshold>only need normal commonality
&. 0ypicality re.uirements Rule 23a3
a. Class representatie,s claims must be typical of all the class members, claims
b. 8ant rep to look like class member and hae aerage claim, not to hae spiteful
motiation or special arguments
'. Ade.uacy re.uirements Rule 23a+
a. Cepresentatie and lawyer must be ade.uate throughout the case can,t bind absentees
unless they are ade.uately representedR
). Degitimacy re.uirements Rule 23b
a. Action must fall within a category that,s recogni2ed as a legitimate class action
i. /0,+ E Anti1pre<udice device
1. Deast used of the three>coers limited fund situation
ii. /0,/ E Soci!# !ction c#!ss !ction
1. (njunction or declaratory judgment where eeryone wants same thing
". :ore of these actions than any other>so no one complains about them
iii. /0,0 E Consumer c!ses
1. Lroup injured by common practice and all want damages
". All of the complaints about class actions centered here this deals
with money, cases are often high isibility
o Certi(ic!tion battle in most class actions is oer this point
(f class is certified, greatly increases plaintiff,s chances for success (in litigation or settlement)
(f not certified, all they,re left with is a couple of representatie indiidual actions
C#!ss !ction is ,indin= on !## mem,ers o( c#!ss '%o do not opt out
Decisions to sett#e c#!ss !ctions must ,e !pproved ,- t%e <ud=e
o +ettlement must be fair, reasonable and ade.uate>class members must get notice, and they can choose to
object Rule 23e
Culemakers built procedural protections into b# class actions that aren,t there for b1 or b">make certification difficult
1. 7otice must be gien to the class members
a. ;Court must direct to class members the best notice practicable under the circumstances, including
indiidual notice to all members who can be identified through reasonable effort= indiiduali2ed
Mullane notice
". 0here must be a right to opt out
a. Ipt9out priilege is only as good as the noticeR
#. 0here must be a predominance of the common .uestion of law or fact
a. Doesn,t mean eery issue must be common (damage issue rarely isR)>but does mean that the ast majority
of liability issues must be common
b. :ore cases about this than any other part of the class action
%. :ust proe that class action is the superior form of adjudication
a. +ometimes superiority is absent because there is an administratie alternatie, but most people say when
there is a mass phenomenon with predominance, class action is the best way to go
Centerpiece of ciil litigation in this country, V1 area in terms of rule9making actiity within the 1ed Cules
?hilosophical underpinning leeling the playing field, aoiding trial by surprise
o @eryone has e.ual access to all releant information ma*imi2es likelihood that the court gets it right
Discoery enables summary judgment to work
o Designed to determine if there is a triable issue, or if there was a way to resole the case without trial by
enabling judge to work with the pleadings augmented by discoery productiity!
o 0rying to aoid trial if there isn,t a reason to go to trial
Discoery is labor9intensie, costly, takes a long time
Discoery is intrusie at many leels/ functioning of entity, priacy, economics of litigation
Inly &JU of federal cases hae discoery at all, and discoery is only limited to 1J eents
o (n lengthy, comple* ciil cases (1JU) there are more than 1J eents
T%ree Import!nt Discover- Are!s
1. +cope of Discoery A what is the legitimate area of in.uiry!
". Discoery Deices A what methods do the parties hae at their disposal to gather eidence!
#. ;8ork ?roduct Doctrine= A &ickman v. 6a7lor
1ederal system determines scope of discoery, discoery mechanisms
,elly v. Nationwide Mutual $nsurance/ decided before the fed rules
o +tate law held that discoery could ask about anything re#ev!nt to !n issue in t%e !ction (as opposed to
being restricted to an issue in the pleading) moing towards fed rules
Can,t seek priileged information
(nformation sought must be admissible as eidence
Ru#e /:,+ 1ederal standard broadens discoery scope and limits
o Discoery on any matter not priileged that is releant to the claim or defense of any party
ORe#ev!nt to ! c#!im or de(enseP scope plaintiffs always fight to maintain this open scope,
defendants always fight to narrow it
o :aterials don,t hae to be admissible at trial to be discoered at this stage
o Rule 2.- parties mandated to get together and negotiate discoery before judicial conference
eattle Times v. 0hinehart/ newspaper orders donor listEmember list for discoery
o Court grants discoery, but with a protectie order
Doesn,t want people using discoery regime caalierly, for ulterior moties
o (llustrates the e*traordinary discretion of the trial judge, as far as what isEisn,t discoerable
All of these discoery orders are interlocutory>rarely appealable
Ru#e /:c ?rotectie Irders
o ?rotectie orders hae been a battlefield for oer a decade
o Caises issue whether a ciil litigation is a public or a priate process
Discoery drafters thought it was a priate process>scope of discoery much broader than the
scope of admissibility
:any go to alternatie dispute resolution to gain the priacy they can,t get in court
1. :andatory disclosure (Rule 2.a) automatic obligation to turn oer certain information>regardless of whether
anyone asks for it or not
a. Documents, witnesses, damage computations, insurance policies .ualify for mandatory disclosure
i. 0hese are things that the rulemakers beliee are so obious, central, and important to getting going
that no motion should be needed
b. Don,t get to discoery until you,e gotten through disclosure
i. :ost lawyers would say that nothing much turns on this rule
". Deposition can .uestion any person (party or not) under oath regarding subject matter of the case
a. 7otice is only re.uired if deponent is a party>can force a non9party with a subpoena
b. +trength of deposition is that it,s spontaneous, respondent must answer on the spot
c. Cespondent must answer all .uestions depositions can include things that are inadmissible
i. i.e. not an objection that they,re talking about hearsay
d. Rules 313 33 limit each party to 1J depositions (up to ) hours each) without a court order
#. Deposition on written .uestions rarely used- can also be directed at anyone
a. +aes money (oral depositions are ery costly), and works well when the witness isn,t antagonistic
b. Downside is that you aren,t there>you,re stuck with whateer .uestions you sent in adance, can,t react to
what the person says
i. $oweer, if something shows up, can opt to orally depose the witness
%. (nterrogatories .uestions sent to other party who answers them with lawyer and sends back
a. 8ork shifters less cost for .uestioner, more for answerer- easier to write .uestions than answer them
i. Lies interrogating party the benefit of the entire information base (not just what other party
knows personally)
ii. :any lawyers use as a sweep find out who knows what, and then depose them
b. (nterrogating party writes out all their .uestions, limit of "&
i. Rule 33 used to get baseline data, used for things with a specific answer
&. Document discoery E land inspection (Rule 3+) access to land, machinery, laboratories, computer systems, and
electronic data
a. 1ollowing conference in accordance with Rule 2.d, just gie notice about what you want to see
b. 0his discoery deice now becoming as important as depositions in products liability, etc
c. ?erasieness has led Adisory Committee to consider new 1ed Cules on electronic discoery
i. (s there a duty to maintain information! $ow long! 8hat kind of storage!
'. ?hysicalE:ental e*aminations (Rule 3/) court order to submit to e*amination
a. Inly discoery deice that re.uires a motion and subse.uent court order for imposition
b. Cule re.uires def to establish two re.uired elements before court issues order
i. Lood cause>needs info from the e*am that it can,t get elsewhere
ii. (n controersy>matter being e*amined is specifically in dispute in the case
c. Closest of all fed rules to iolating the Cules @nabling Act
d. chla"enhau. v. Holder/ bus drier inoled in accident, def petitions court to issue order for % e*ams
i. Court says must balance priacy rights and interest in resoling disputes justly and e*pediently
ii. +ince plaintiff didn,t assert his condition in his claim, court says Rule 3/ re.uires def to
demonstrate good cause and the fact that his condition is in controersy in the case
1. 6ecause no eidence brought to support re.uirements, +C reersed the e*am orders
Hickman v. Taylor/ greatest discoery case eer decided in this country
o Dawyer performed e*tensie work (interiewing, etc) before case was brought
o ?laintiff brought suit and filed an interrogatory re.uesting basically eerything from lawyer (copies of all
statements taken in connection with accident, and if oral, summaries of the statements)
o +C said this is essentially an attempt to get inside the head of the opposing counsel, without justification
since plaintiff can interiew witnesses himself
7ot a privile#e case, because not about attorney9client communication
6ut the information is !ttorne- 'orA1product>need a good reason for obtaining it
(f this case didn,t e*ist, lawyers would wait for opposing counsel to do work and then
just ask them to turn it oer
(n the alternatie, would lead to lawyers not writing anything down, which is also bad
o :iller +C doesn,t create a lawyer,s privile#e, but a *uali-ied immunit7
(f can,t get a substitute, immunity is trumped in the name of access to all releant data- but if there
is a substitute, immunity holds
Ru#e /:, Codification of the &ickman rule
o A party may obtain discoery of documents and tangible things prepared in anticipation of litigation or for
trial by or for another party (or representatie) onl7 upon sho'in# substantial need and unable 'ithout
undue hardship to obtain substantial e*uivalent b7 other means
o Court shall protect against disclosure of mental impressions, conclusions, opinions, or legal theories of an
attorney or other representatie of a party concerning the litigation
(f mi*ed, judge will receie documents and cross off all the stuff that,s work product
Ru#e +: ?retrial Conferences- +cheduling- :anagement
o Cives court po'er to seJuence& direct& sc%edu#e !nd m!n!=e in ever- respect
o ?rior to 13H#, judges did not hae to inole themseles with the idea of settlement
o Rule 1. amended the re.uirements dramatically
As soon as case falls within the docket (few e*ceptions), the judge grabs it and holds a conference
to determine the scheduling, se.uencing, management, etc of the case
?uts much greater pressure on parties to get moing on a settlement
o 0his and subse.uent conferences create a triangulated system to promote settlement
Tudge now major participant in process ("JU of judicial resources shifted to management)
+ome beliee push for settlement hinders parties, right to adjudication
Rise o( P!r!1Judici!#s
o :agistrates judges created by Congress, no lifetime appointment or presidential commission
District judges can delegate authority to run discoery, though no adjudicatory power
:ake recommendations to district judges>trial lawyers may not see real judge for a while
o :asters ad hoc appointments (Rule /3) for specific purposes (i.e. economist, accountant)
:ake reports and recommendations to district judge on matters within area of e*pertise
6elow fed rules, each district has local rules, and judges may een hae their own rules.
+eres as a filtering deice designed to shorten trials, motion made in the middle of a case
+tages of trial that sere as filtration deices>should the trial go on!
o Rule 12b. Motion to dismiss has anything been stated that amounts to a claim for relief!
Def says there is no claim upon which relief can be granted
Def who makes motion makes concession that all of the facts of the complaint are true
(f granted, there is usually leae to re9plead
o Rule 12c Motion (or <ud=ment on t%e p#e!din=s
(f granted, there is usually leae to re9plead
o Rule /. Motion (or summ!r- <ud=ment asking is anything jury9worthy!
5niersal standard Q is there a genuine issue of material fact!
Lranted if plaintiff,s case has no legal basis (i.e. no legally recogni2ed wrong)
Lranted if all material in the motion sings the same song (i.e. no reasonable jury could
disagree with it all)
Lranted if there is a iron9clad defense that can,t be oercome (i.e. statute of limitations
has e*pired, res =udicata applies)
(f there is, go forward>if there isn,t, in effect you,re saying there is nothing trial9worthy
(f granted, produces final judgment with res =udicata effect>not appealableR
o Rule /< Directed verdict motion judgment as a matter of law- asking is anything jury9worthy!
@ssentially the same as a Cule &' :otion>but timing is different
Case is getting more mature, motion9making getting less forgiing
Def claims plaintiff,s eidence is insufficient, doesn,t satisfy the burden of proof
(f granted, produces final judgment with res =udicata effect>not appealableR
o JNO) renewed motion for judgment as a matter of law
Case went to jury, jury ruled, and erdict9loser is making this motion claiming that the case
actually shouldn,t hae gone to a jury
+ame motion as directed erdict, Cule &'>reflects back to whether issue was jury9worthy
(f judge grants, he chan#es the verdictR
o Motion (or ! ne' tri!#
$ighly discretionary>e.g. granted when discrimination is found
0he only reason we hae trials is to determine issues of facts>if no facts are in dispute, judge can rule on case as a
matter of law
o 1Ds often miss this if there are no triable issues of fact in fact pattern, no reason for trialR
?*PO/ +tudent is walking to school, hit in crosswalk. ?lan to present eyewitness accounts at trial from arious
religious figures who will all testify they saw the student in the crosswalk, then saw the car hit him while driing
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 ?retty obious that plaintiff would win at trial
o ?laintiff makes summary judgment motion, claiming there is no genuine issue of material fact with respect
to negligence
Tudge can,t consider facts>merely asks are the -acts in dispute0
1acts are in dispute if we beliee def,s witness, but at trial we wouldn,t beliee him
6ut factual disputes should be left to the jury, because regardless of how obious it seems
there is an issue of credibility that the jury must decide
o 0his case must go to a jury>summary judgment shouldn,t be granted
Lundeen v. Cordner/ material fact at issue whether decedent took the necessary steps to change his will
o (nterener moes for summary judgment- court grants, saying trial would be a ;waste of time=
?laintiff,s affidait didn,t meet issues raised and supported by interener,s affidait
7o further eidence would come up at trial
o Ince the moing party says there is no issue of material fact, then opposing party has opportunity to
present eidence that there is a genuine issue but plaintiff didn,t do that here>should hae done
discoery, should hae deposed interener,s witness
o (n ?undeen, the material issue was a pure fact
0here can also be mi*ed lawEfact .uestions (i.e. purpose, motie, intent)
Cross v. %/ professor claims his acation was an educational e*pense
o (ssue of material fact is whether any U of his e*penses .ualify as educational
o Court refused his motion for summary judgment>he is the only one who knows what he did on the trip
and his reasons for it his credibility should be judged by the jury
Lranting summary judgment would cut off def,s cross9e*amination rights but couldn,t he hae
asked for more discoery!
0his is the toughest .uestion in summary judgment lawR
(dickes v. ,ress/ ciil rights case>white teacher eating with black students thrown out of restaurant, then arrested
o Adickes alleges conspiracy between the restaurant (Gress) and the police
o Gress makes motion for summary judgment supplies affidaits from police and restaurant manager
saying there was no preconceied planEagreement
6ut def doesn,t say that the police officer wasn,t in the restaurant>which is a main point of
Adickes, theory
o Tustice $arlan says the moant has a burden on a summary judgment motion, een when that party
wouldn,t hae the burden at trial
Mov!nt %!s ,urden to s%o' !,sence o( =enuine issue o( m!teri!# (!ct
8hen there is an issue of mi*ed lawEfact, and there are credibility issues, non9moing party should
be able to try and proe their case at trial
Celote6 Corp v. Catrett/ plaintiff sues for husband,s asbestos9related death
o Toint liability theory plaintiff allowed to sue a number of different defendants, as long as plaintiff can
proe that each def manufactured, or caused to be manufactured, the asbestos her husband was e*posed to
$ere she wasn,t able to proe that Celote* manufactured the product A7D that her husband was
e*posed to Celote*,s products
:ajority holds that moant must support her motion for summary judgment- must ;proe it=
6rennan,s dissent says this the majority,s opinion doesn,t proide any guidance for what
a lawyer needs to do when moing for summary judgmentR
Amendment guarantees jury trial in criminal cases (incorporated into 1%
Amend, applies to all states)
Amendment ciil jury trial (has neer been incorporated through the 1%
o 1
clause/ gies the jury trial right, as at common law
o "
clause/ preents judges from re9e*amining what juries hae done (already seen in Gasperini)
Degitimacy of jury trial for criminal trials, jury trial was to be a buffer between citi2ens and state, and recogni2ed
unbelieable power of the state prosecutors
o 0his function isn,t so necessary in ciil litigation
o Ciil litigation think about judicial bias, the common senseEethics of the community rather than a judge
o Iften wasteful, time consuming
Courts didn,t treat jury trial as a right in ciil cases>until "eacon (but not all states adopted "eacon>on an e*am, would be
safe to say ;on the one hand, on the other hand<=)
/eacon Theatres/ district court treated as an e.uity action, which doesn,t re.uire a jury trial
$istorical diide merger of law and e.uity didn,t take into account jury trial .uestion
District Court says a declaration is like an injunction therefore e.uitable (looks at predominance of the case)
o 3
Circuit says district judge has right to determine whether a case is jury triable or not- says based on
;Clean 5p Doctrine= an e.uity court with jurisdiction can clean up the situation with monetary aid
+C said it is a misconception that a declaratory judgment is solely e.uity because there are no damages
o +ays to determine jury triability hae to get beneath the deice used, and ask what are the underlying issues
with regard to jury triability
Tustice 6lack concerned about preclusion>going forward with e.uity issue force estopps 6eacon from trying the
antitrust case
c!se s!-in= t%!t 5
Amend <ur- tri!# ri=%t !pp#ies to e!c% issue in t%e c!se judge,s job is to atomi2e the
case and determine what the issues are, no central predominance
+C drastically departed from precedent by establishing # categories of issues in cases
o Degal (tried by jury)
o @.uitable (tried by judge)
o :i*ed lawEe.uity (tried by jury)
"eacon 6heatres was all about taking a case that was totally e.uitable under the clean9up doctrine and conerting it
to a case that is "E# jury trial
o 0win prere.uisites of e.uity jurisdiction inade.uacy (shrinking as legal system e*pands), irreparability
of harm
o Ability to get into e.uity and bypass the jury shrinks, as e*emplified by the following hypos
Po##ution ?*PO/ ?laintiff sues for an injunction and for damages under He, Ha#
o Tudge has to atomi2e (s this an actionable nuisance! (f so, what are the damages! 1inally, should the
remedy of injunction be made aailable to the plaintiff!
(s there pollution>combination of lawEe.uity, so goes to jury
Damages>purely legal, so goes to jury
+hould judge e*ercise e.uitable discretion and grant injunction>pure e.uitable, so judge decides
Contr!ct ?*PO/ ?laintiff contracted with def for widgets- def didn,t produce them. At e.uity, if plaintiff came
into court and said this, it would be a re.uest for specific performance (e.uitable) and therefore up to judge. 7ow/
o Almost all issues here are legalEfor the jury
8as there a bargain! (combination)
8as there consideration! (combination)
8as plaintiff willing to perform his side! (combination)
8as there a breach! (combination)
8hat are the damages! (purely legal)
o Inly e.uitable issue should specific performance be granted!
Dairy 7ueen v. &ood/ plaintiff asking for permanent injunction and an accounting of the money they were owed
o 6oth aspects of plaintiff,s case was historically e.uitable
o +C again rejects tradition says jurors are capable and can get masters to help with comple*ities of
Again demonstrates 6lack,s desire to embrace opportunities to e*pand jury trials
o Court goes farther than "eacon>takes a large head of e.uity jurisprudence (accountings) and moes it
oer to the law side, giing it jury trial right
8ould seem after "eacon and () that we should get rid of e.uity completely>but there are some forms of
e.uitable relief that jury can,t handle effectiely (i.e. paradigmatic injunctions and specific performance), and at
times it,s better to hae discretion based on a wide angle of e*perience, familiarity with the legal mechanisms and
principles (i.e. nuisance, specific performance, perishable products, desegregation, etc)
0oss v. /ernhard/ deriatie suit deriatie suits and class actions were born in e.uity
o Court held that it doesn,t matter that dispute comes into court in e.uity procedural ehicle look beneath
the procedure, beneath the deriatie re.uest>what kind of an action is this!
Court said it,s a mi*ed lawEe.uity case
o All e.uity procedures (interpleader, deriatie suits, class actions) carry jury trial under a straight "eacon
analysis, once the judge makes the procedural decision that e.uitable deice is appropriate
p.3J3 footnote on determining what is a legalEe.uitable issue for the "eacon analysis As our
cases indicate, the ;legal= nature of an issue is determined by considering/ first, the pre9merger
custom with reference to such .uestions- second, the remedy sought- and third, the practical
abilities and limitations of juries
0his last step in the process of determining what is legalEe.uitable inspired a liely debate
oer whether it meant that you shouldn,t hae a jury trial in comple* cases
Curtis v. Loether/ 0itle S((( claim about housing discrimination based on race
o Def demands jury trial- plaintiff says no jury trial proision in the statute
o +C decision if certain conditions are met, post91)31 statutory rights carry Constitutional jury trial right
Cight created by Congress must be indicated in Article ((( court>traditional court
Cemedy proided must be one traditionally granted by juries in courts of law>damages
Cight created must be analogous to right that e*isted in 1)31
Analogies cited by court aren,t conincing- this restriction is easily oercome
o Court holds that 0itle S((( does create a legal right to a jury trial>doesn,t matter if it did or didn,t e*ist at
the time of the ConstitutionR
Markman v. &estview/ issue is how should the scope of the term ;inentory= be decided>by judge or jury!
(;inentory= as used in patent)
o Court says this is for a judge to determine
o Contracts are usually for a jury>why is this different!
Comple*ity e*ception! @*ception because it,s a patent case!
:ajority says the .uestion is analogous to interpreting a statute (tried by judge)
6ut dissenting iew says this is a .uestion of fact>like a contract (tried by jury)
Court also mentions uniformity concern patent must mean the same thing nationally, and this
uniformity will be better implemented if resolution comes from a judge rather than arious juries
?atents and contracts hae long been recogni2ed to be within the e*clusie domain of the
federal court to encourage the same kind of uniformity
Do!son v. Masonite/ deals with a contract one side saying contract is for goods, other side says it,s for serices
o +tatute of 1rauds only applies to the sale of goods, and thus an oral contract is only enforceable for the sale
of serices
o Buestion is/ are we going to gie the +tatute of 1rauds a broader or narrower interpretation!
@asy to say law goes to judge, facts go to jury>but there is an undistributed middle in the process
'%o !pp#ies t%e (!cts to t%e #!'F
Rule +: so9called ;general erdict=>judge charges jury, so jury is applying the law
(gien to them by the judge) to the facts as they find them
%3a special erdict by which the jury finds the facts (with no mention of law from the
judge) and then the judge applies the law to those facts
Questions to !sA to determine '%et%er !n issue is #!' or eJuit-
1. 8hat did the court do in 1)H)! (footnote)
". 8hat is the remedy sought!
a. :oney or money substitute Q jury
b. (f want to enjoin someone from discriminating against you Q pure e.uity
#. 8hat court are we in!
a. Article ((( courts Q math on jury trial skyrockets
b. 6ankruptcy court, military tribunal, etc Q unlikely to get jury trial
%. 8ho is judging case!
a. Tudges 6lack and Douglas Q presumption is always a jury trial
On e3!m& %!ve ! c!se& come up 'it% !n- !n!#o=- -ou '!nt
Ambialence towards jury trial shows up in jury control mechanisms/
+. Directed verdict motion
a. Also called motion for judgment as a matter of law
/. Ne' tri!# motion
0. Motion (or <ud=ment not'it%st!ndin= t%e verdict 8JNO);
a. Also called renewed motion for judgment as a matter of law
0ypically comes at the end of trial lawyers motion for judgment as a matter of law, saying to judge there is
nothing to gie to the jury
o (f it,s granted, case is oer>doesn,t go to a jury
1re.uently made at multiple points throughout a trial
o After opening statement/ early directed erdict motion (like ery late summary judgment motion)
o :ost commonly made after both parties are done
Acts a filtration deice filters the jury9worthy and the jury9worthless
o (f there is no dispute as to an issue of fact, no legally cogni2able wrong, or an ironclad defense, then there
is nothing for a jury to do
Case actually went to jury, jury did it,s job, and erdict loser is saying that case shouldn,t hae gone to the jury in
the first place
(n order to make a T7IS motion, party must hae also made a directed erdict motion
I%- do 'e %!ve ,ot% directed verdict !nd JNO)F
1. Directed erdict motion judge has to answer the .uestion in real9time, doesn,t hae time to research, read all the
papers on the motion
a. Iften judge thinks jury,s erdict will come out the way the moant wants anyway
b. Tudges are often concerned that if they grant directed erdicts and it,s wrong, the case will get reersed on
appeal and the trial has to be done all oer again
". :oing party banks on being able to make T7IS motion if directed erdict is denied will gie judge more time
to fully research the issue
a. Also, if T7IS motion is granted but oerturned on appeal, jury,s erdict is reinstated>don,t hae to go
through the trial all oer again
#. :any people beliee that the latter is more efficient aoiding re9trials is more efficient than simply aoiding the
jury submission phase
St!nd!rd (or =r!ntin= directed verdicts !nd JNO)s
1. +ome courts follow the ;scintilla= rule if there is a scintilla of eidence in support of the non9moing party, or on
the erdict, then don,t grant motion
". :ore common forumulation used by fed courts judge asks whether a reasonable jury could find for the non9
moing party
a. (f no reasonable jury could possibly find for the non9moing party, then will grant motion
i. Cely on integrity of judges to administer this honestly, so they don,t become a 1#
juror with a
eto power (because this in effect gies judges trumping power)
ii. Tudges are increasingly moing the line about what constitutes an issue for the jury closer to
where they prefer, so that it often bypasses the juryElong process of trial
iii. +ame standard for summary judgment
1. :iller says this motion has recently been used oer9e*uberantly, in conte*ts in which it
wouldn,t hae been used 1& years ago
7ot part of jury control mechanismsEfiltration mechanisms
?rophylactic motion erdict has been rendered, judge asking if anything went wrong
o (f something did go wrong, was it harmless or harmful!
o (f something went wrong and it,s material, judge has power to say let,s do it again
8hat could go wrong that would motiate a judge to say ne' trial!
o :isconduct
(mage of trial as a play, people are playing their roles>if they stray out of role or perform their
roles badly, could be cause for a new trial
o Tury instructionsEjury charge
(f judge misstates some law, puts the burden on the wrong party, etc
o Dawyer errors
(f lawyer brings up something that the judge thinks can,t be cured by striking it from the record
(f lawyer is inflammatory, prejudicial, etc
o Tury misconduct
(f jury brings in informationEeidence that wasn,t brought up at trial
Turies basically good people, trying to do the right thing but may come up with an impossible
erdict, a .uotient erdict, or account for human frailty in a way that the law or the case at hand
doesn,t allow for
Serdict may be against the ;great weight of the eidence= (according to judge)
Can be based on either the liability determination or the damages determination>either
can be impossible in the judge,s eyes, reason for new trial
0his is not a death motion
o Directed erdict and T7IS are terminal
o 7ew trial is the opposite trial is still alie, doing it oer again before another jury
6ecause of this, new trial motion hasn,t had the same difficulties with the )
Amend as other two
7ew trial motions aren,t appealable, because they don,t produce a final judgment
o 6ut motion can essentially be oerturned if judgment from "
trial is appealed
(n the name of efficiency and economy, if judge can identify the flaw(s), and the issues are separable judge can
order a partial new trial on the particular issue(s)
o 7ot all issues are separable>i.e. negligence determination and damage determination
7ew trial motion is e*ceedingly unhelpful>just says that judges hae the power to grant a new trial as they always
hae (learned this in Gasperini)
0he trilogy of motions gies the judge considerable power to change what the jury decided shows ambialence towards
our system of jury trials.
"our simp#e ru#es o( prec#usion
1. Can only present a claim once
a. Can,t split the claim>if you do, you lose the "
b. Buestion of how you define ;claim=!
". Ince legalEfactual issue has been adjudicated, can,t seek to hae it re9determined
a. Iutsider can oerturn, as a matter of stare decisis, but an insider cannot ask>een if it is demonstrably
wrong (because insider is barred by preclusionR)
i. !tare decisis idea that once an adjudication is made about some legal issue, that decision is
entitled to presumptie alidity in future cases, unless 7ou can persuade =ud#e that there8s a #ood
reason to #o back@
b. Buestion of what is the .uality of adjudication you need to be sure!
#. 7obody can be injured by preclusion, unless they,e had their day in court
a. ?reclusion can,t be applied unless someone has had opportunity to raise claimEhae his day in court
b. Buestion of how you define those that are precluded, and their relationships with people outside the
courtroom, who aren,t precluded!
i. 0o what e*tent do you reach inside the proceeding to the outside, to treat outsiders as though they
are precluded! 0hink about this with regard to class action suits
%. Daw disfaors preclusion
a. Gnows that if preclusion kicks in, potential for injustice is significant
b. ?reclusion is a defense that must be raised early in the proceedings, or else it is presumed waied
C#!im prec#usion/ results in the dismissal of important legal arguments without them eer being considered by a court
?*PO/ 8oman is a schoolteacher in I$. +he is a strong opponent of the Sietnam 8ar. +he pins a peace symbol
to the American flag on her lawn. +chool board sends her a letter on :ay )
that they won,t renew her contract.
o Case 1/ I$ state court, she argues that non9renewal letter must be receied by :ay 1
for termination of
contract for the ne*t fall she wins
o Case "/ 1
Amendment issue in fed court
Def argues that she split her claim>didn,t bring up issue during the first case but she could hae
(I$ court has general jd oer 1
Amendment issues)
?laintiff argues that these are two different claims, not parts of the same claim
o $ow do we determine who is right!! 6roader or narrower definition of a claim!
$istorically, dealt with claims as theories of recoery each theory of recoery treated as a
different, separate claim
0heory9based pleading became fact9based pleading definition of claim e*panded, because
about lumping theories together as long as there was jurisdictionEenue
o 5nder theory9based system, school teacher is home free>but not under fact9based system
o :iddle position decide whether the facts gie rise to one claim or two
(f proof of the same set of facts means you win on both claims, then they should be part of the
same case
$ere, the liability facts of the two claims are different
o C7I1 and claim aren,t the same thing
Cead C7I1 as broadening the outer limits of what you can do
Cead claim more carefully>worried about mouse9trapping someone into a situation with " claims
Issue prec#usion/
?*PO/ ?laintiff sues illage for damage to car. ?laintiff wins. ?laintiff sues for damage to body.
o (f those are two different claims, plaintiff clearly wins case ", because def had his day in court and lost
0herefore in "
case, def is collaterally estopped, and action in 1
case would control action in "
o (f there was an actual adjudication in the 1
case, and it was necessary to the erdict, that adjudication is
binding on the def in case "
Default judgments, guilty pleas are not actual adjudications (and therefore not binding in case ")
?*PO/ Art is arrested for selling amphetamines.
o (n case 1, def pleads guilty.
o Case " def sues cop for damages, claims iolation of the %
Amendment (illegal search and sei2ure)
0his would seem to be a case of issue preclusion, because the .uestion in the "
case is whether or
not the search that led to the 1
case was illegal
6ut a guilty plea isn,t an actual adjudication, so can,t apply preclusion rules
Prec#usion #ocAs in ! resu#t once d!m!=es %!ve ,een p!id doesn,t matter how certain you are that judgment is
wrong (barring fraud)
o Ces judicata / used to apply to both claim and issue preclusion, often without guidance from judge
6ut really means claim preclusion, when used precisely
o Collateral estoppel / used to apply to issue preclusion
6ut don,t use res =udicata and collateral estoppel>use claim and issue preclusion terminology
?reclusion is the end of the line chronologically
o $as a relationship to the joinder material, often applied in the conte*t of party and claim joinder
o Also bears on class actions
Park Lane Hosiery/ phenomenon of non9mutual collateral estoppel ability of a stranger to take adantage of a
priate determination against someone who had his day in court
o Action 1/ +@C . ?arklane>+@C wins, ?arklane loses (injunction, no jury trial)
o Action "/ (nestors . ?arklane>inestors win
Tury trial right
Collateral estoppel is permitted here these strangers, who weren,t in the 1
action, are allowed
to take collateral estoppel effect from the decision in action 1 (that ?arklane was responsible)
0his is allowed because the presence of the inestors was clearly known at the point of
the 1
0here,s an additional aspect that since action 1 is an +@C prosecution under securities
laws, inestors can,t interene on it
o 0his is annoying>allows people to sit on sidelines, watch at no risk