FED VENUE (1391): proper where D resides, if all res. reside where dis.

located; substantial
part of events or omissions on which claim is based occurred/where substantial part of
property is subject to action location, No local action rule in fed ct., trans made any time
STATE VENUE: est. by statute: some--proper venue where D resides; others proper venue
where COA arose or location of real property or which the title at issue
VENUE: P sues D1 (resident of North Dist. of
Ven. When IMPROPER (1406a): Div:
apply law of state where transferred to, not law CA) & D2 (resident of South Dist. of CA) for
of ct that transferred case; FQ: apply interpret. defamatory ad in an East Dist. Of Virginia
of federal law in its circuit Ct of appeals
newspaper. 1391(b)(1) Ds are citizens of
Ven. When PROPER (1404a): convenience the same state (North and South CA) +
substantial part of events occurred
of parties/witnesses OR interest of justice dis.
(Virginia).
ct. may transfer civil action to other dis where
P sues D1 (resident of Western Dist of NY) &
it might have brought. Div: apply law that
would have been applied in ct. that transferred D2 (resident of Central Dist. of CA) for
defamatory ad in an Eastern Dist. of Virginia
case; FQ: apply law of ct. that case is
newspaper. Only Virginia sue in any
transferred to; forum selection: clause is
district where Ds from same state (NY and
significant, not determinative; No PJ: even if
ct. lacks PJ over D, ct. not barred from transfer. CA) cant choose either
CHANGE VENUE (which law to use): car crash in NY btwn P (CA) v D (IL) filed in IL. D
moves to CA after case is filed. CA ct applies whatever negligence law IL Ct would have
applied (IL Ct applies NY substantive law for negligence laws since events occurred in NY)
1404: FQ: CA to NY use NY, State Ct: CA to NY Use CA
Forum Non Conveniens: allows Ct to dismiss action (not transfer), even if PJ/venue are
proper. Public: 1) resolve dispute local/no burden on local Cts, 2) avoid foreign law, 3) avoid
imposing jury duty for case with no impact on jurors community. Private: access to witnesses
and evidence, Ds convenience, compulsory process, other factors
SERV PROCESS (Rule 4): notice reasonably calculated, under all circumstances, apprise
interested parties pendency of action and afford them opportunity to object; serve w/in 120 days
SWIFT: Div in Fed Ct: apply fed procedural law; substantive: FQ=fed, state const/state jud
opinion=state, state jud deciding local Q=state, state decision on general Q=pick best
ERIE action in dis ct. FQ: fed sub/pro; Fed Div: sub (state law where district is located); pro
(if addressed by fed law, use fed law, even if statute in conflict & if no fed law applies, follow
state sub law, and can ignore state pro law) DIVERSITY ONLY; Conflict? If Yes state v.
fed Const: Supremacy, state v. fed stat, state v. FRCP, state v. fed practice (Byrd test)
RULES DECISION ACT (1652) substantive law: (element of claim or defense = state law;
Statute of Limitations = state law ;Burden if Proof = state), procedural law: (judge/jury
allocation = state law (judge), fed law (jury); assessment atty fee = federal law
OUTCOME DETERMINATIVE: whether state law must be obeyed in fed ct-if outcome is
substantively the same, fed ct. should apply its own rules; Balancing of interest TEST: (1)
rules defining state rights/obligations (substantive), (2) rules bound up with state-created
rights/oblig. (procedural rule, serve substantive purpose), (3) rules of forum and mode
(procedural); if (1) and (2), fed ct. must apply state law, if (3), fed. ct. must only apply state
law if BOTH: (A) if applying fed. lae would produce substantial likelihood of different
outcomes in state/fed Ctts, and (B) fed. countervailing considerations dont exist that are
sufficient to outweigh the Erie (getting duplicate outcome between fed/state action)
RULES ENABLING ACT (2072) apply FRCP if within the scope

NOTICE PLEAD(7-9):notice complaint/grounds which it rests, admit/deny,21days after service

CONLEY STANDARD: complaints should be dismissed on the basis of the pleadings only if
it appears beyond doubt that P can prove no set of factswhich would entitle him relief
TWIQBAL TEST: (1) ignore allegations that are no more than conclusions or bare-bones
recitations of the elements of the claim (no evidence of agreement) AND (2) assume the
remaining well-pleaded factual allegations are true and whether they state a plausible (not just
possible) claim for relief (plausible: rises above a speculative level)
PLEADING Twiqbal: Ps, housekeepers at the Governors mansion, allege they were fired
because they had supported the losing party in the last election. In support of this claim, Ps
alleged that they were fired without explanation immediately after the election, and that Ds had
overheard the Ps speaking favorably about the losing party and its candidates. District Ct
dismisses complaint but notes that it would have been sufficient before Twiqbal. Rationale: The
Ps allegations are at best consistent with Ps claims of political motivation, but they do not,
without more, make it plausible that the Governor, his wife, and his staff would fire
housekeepers wholesale because of political affiliation.
ANSWER (12(b)) defense on merits: deny all or some of the allegations; gen: deny everything
in complaint; spec: not intended to deny all allegations; waived if not included in asnwer
RELATION BACK TO AMENDMENTS (15c): relates back to when original pleading was
filed; originally forgotten claim allowed as long as it relates back. 15(d) supplemental pleading
SAME TRANSACT/OCCURRENCE: (1) are issues of fact/law raised in claim/counter largely
the same, (2) would res judicata bar subsequent suit on partys counter, absent compulsory
counter rule? (3) will substantially the same evidence support or refute the claim as well as
counter? (4) is there a logical relationship btwn claim/counter? (the more overlap in legal/fact
issues, the more likely the court is to find it to be the same transaction or occurrence)
FOCUS ON UNDERLYING EVENTS GIVING RISE TO LITIGATION, NOT ON
PARTYS LEGAL THEORY OR TYPE OF RELIEF PARTY SEEKS
CLAIM JOINDER: P hires D Painting Co to paint house. Painter (employee of Painting Co)
moves metal ladder near where P is standing. Ladder touches electrical wire owned by Electric
Co, severely injuring P and setting house on fire. In same complaint, can she sue painting Co
for: personal injuries and damage to house? YES-18(a) :may join indep./alternative claims. In
same complaint, can P sue Painting Co for negligence for damages from painting accident and
(a)for breach of K for painting house badly?YES(b)for breach of K for painting another of her
houses badly last year?YES-doesnt matter if unrelated efficiency (c)for damages in auto
accident she had with Painting employee last year? YES-factually unrelated, but allowed
MULTIPLE CLAIMS (rule 18): a party asserting a claim MAY join as many independent or
alternative claims of whatever nature as the party may have against opposing party, NEED SMJ
COUNTERCLAIM: P sues Painting Co for
COMP/PERMIS COUNTERCLAIM: Car
injuries from ladder accident. Painting Co
crash case Ds counterclaim (sue P for
asserts a counterclaim against P for the amount negligence) = compulsory; Ds counter
due under painting K Rule 13
(breach K) = Permissive = counter/separate
lawsuit
NOT SAME TRANS/OCCURRENCE: P injured in auto accident sues: 1) Other driver for
injuries and 2) Ps insurance Co for fraudulently inducing her too settle for very little. Not same
transaction or occurrence under logical relationship test These are two distinct torts
(negligence and bad faith claim) committed by different Ds at different times, and they
resulted in the invasion of separate legal interests.

TRANSACTION/OCCURRENCE: P injured his back in a Sears store. P was hospitalized for

18 days and then taken by ambulance to the airport, to be transferred to another hospital
En route, the driver had an epileptic fit, the ambulance crashed, aggravating Ps back injury. P
sued Sears and the City, which ran the ambulance service Same transaction or occurrence =
Because Sears could be liable for the aggravation of the injury caused by the later accident
as well as for the initial injury, the proof about injuries would be relevant to both claims.
CROSSCLAIM 13(g): P sues Painting Co and painter for injuries from ladder accident.
Painting Co asserts a claim against painter for indemnification on P claim.
COUNTER, NOT CROSSCLAIM: P sues Painting Co and painter for injuries from ladder
accident. May painter assert a crossclaim against Painting Co for breach of contract for wages on
a previous job. NO! It arises out of a different transaction or occurrence Permissive
counterclaims, however, can be brought even if unrelated
COMMON NUCLEUS: if 2 of 3 claims are common, hear 3rd claim too (efficiency)
PERMISSIVE PARTY: The P hired Blum, a MULTIPLE CLAIMS/PARTIES: P in
general contractor, to construct a building.
ladder incident joins with neighbor (whose
Blum subcontracted the pouring of concrete
house was also damaged in resulting fire) to
support pillars to Caisson. Seaboard Surety
sue Painting Co. [Rule 20(a)] = Common
issued a surety bond for the proper
question of fact negligence/Same
performance of Caissons work. Pittsburgh
transaction Neighbor can also assert claim
Testing tested the pillars for strength as they
Painting Co for bad painting job last month.
were poured. The pillars failed, and Blum (and [Rule 18(a)] = Not same transaction, but
another P) sued Hands Dye & Finishing sued
once there is a claim, any claim, even if
Caisson, Seaboard, and Pittsburgh for damages unrelated Neighbor couldnt join P if neighbor
arising from the failure of the pillars. relate to was only asserting bad painting job (i.e. no fire
damage). [Fails Rule 20(a) thus cant use
same transaction-same construction/same
question of why it failed;ONCE MULITPLE Rule 18(a)] = not same
PS JOIN, ANY CLAIM CAN BE MADE
transaction/occurrence here
IMPLEADER: P sues D for negligence. D argues that if D is liable then 3rd Party partly liable.
D can implead 3rd Party if state law allows contribution among tortfeasors. Contribution P sues
D Gen-Contractor for negligence of Subcontractor. K btwn Gen-Contractor and Subcontractor
provides that Subcontractor shall indemnify Gen-Contractor for liability due to Subcontractors
negligence Indemnity, 14(a) Once impleaded, party can add other claims
NO IMPLEADER: P sues D for negligence. D argues that if D is liable, then 3rd Party would
have been also at least partly liable. However, state law does not allow for contribution among
tortfeasors. 3rd party must be liable to D (contribution)
NO IMPLEADER: P sues Police Officer civil rights violation. D claims P has mistaken him for
another police. D cannot implead other police officer (because other police officer would not be
liable to D even if D is found liable) cant recover from someone who you would be mistaken
INTERVENTION: right (24a),permissive (24b). Reqs:1) interest relates to prop/trans (signif.
protectable interest) 2) impair/impede ability to protect interests, 3)unless adequately represent.
INTERVENTION: Property owners sued a railroad to force it to close down certain storage
tracks in St. Paul, Minnesota. property owner v. RR Ford Motor Co moved to intervene as a D,
alleging that those tracks were essential to the operation of its auto assembly plant and the
plant would have to be closed down if the tracks were ordered closed. Factors for intervention:
1) degree of overlap, 2) how far along action is, 3) impact intervention would have on original
action. Conditions on limited intervention still stand

INTERVENTION: Owner of a rent-controlled housing development applied to the city for an

increase in rents. Result was a Ct proceeding between the owner and the city. owner of housing
v. city A tenant and several tenant organizations moved to intervene, to challenge the owners
evidence and arguments in favor of rent increase. parties do not want increase rent
SUFFICIENT INTEREST: A utility sued its gas supplier claiming that the supplier was
overcharging under the contract. Customers of the utility moved to intervene, claiming an
interest in the case because their rates would rise if the supplier won, leading to increased cost to
the utility for gas. Customers could not intervene as of right. Although the customers might
suffer an indirect economic impact from the case, they had no direct interest in K at issue in the
case. suff int. relate prop/trans, signif protectable int., not adequate represented by party in action
ATTY-CLIENT PRIVILEGE: clients
WORK PRODUCT (WP): protects materials
privilege to refuse to disclose, and to roevent
prepared in anticipation of litigation from
any other person from disclosing, certain
discovery, minority: documents must be
prepared Primarily or exclusively to assist in
confidential communications between the
client and his or her attorney. Elements: (1) litigation, majority: prepared because of
holder of privilege was a client or
litigation Anticipation of litigation factors:
prospective client at the time of the
1) how doc was labeled 2) if lawyer participated
communication (does not have to formally
in preparation 3) if doc comments on litigation,
hire atty), (2) holder was communicating
4) if it has an ordinary business purpose;
with atty (or agent) acting in capacity as a
OVERCOMING WP: 1) substantial need for
lawyer, (3) no third party was also part of
materials (relevance, desire to avoid
the communication (i.e. listening, etc), (4)
overlooking not enough need materials to
communication was primarily for purpose of est/defeat ESSENTIAL ELEMENT of claim or
defense), 2) cannot, without undue hardship,
obtaining legal advice or services (5)
communication not intended to further
obtain substantial equivalent by other means.
crime/tort (6) only holder can assert
Except: if witness died or unable to provide
privilege (atty present at meeting = not priv info, other party can inquire interrogatory
ATTY-CLIENT: Assume that Dwights
WORK PRODUCT: P injured in car accident.
admission to Melissa that he had been drunk
P sues manufacturer, claiming he lost control of
is subject to the attorney-client privilege.
car because defect in autos design.
Also assume that the injured driver does in
Manufacturers design division routinely
fact sue Dwight, and that Ps counsel is now
prepares statistical summary of dealer repair
questioning Dwight as a witness at trial.If the invoices to identify design defects for the
attorney asks Dwight whether he had been
purpose of correcting such defects in future
drinking before the accident, can Dwight
models. Not work-product: relevant to
decline to answer on privilege grounds? No,
litigation, but not done in the purpose of
what is being protected is communication
litigation, rather is for the purpose of
btwn client and atty (if they asked if he told correcting such defects in future models
Melissa, then there would be a privilege)
OPINION WORK PRODUCT: DS lawyer writes memo quoting statements of witnesses
and evaluates strengths/weaknesses Some cts allow redaction of everything but quotes
Some Cts say must show that mental impressions are the pivotal issue in the current
litigation and the need for the material is compelling.
SCOPE OF DISCOVERY: 1) subject to discovery: info for claim/defense, 2) may be
subject to disc, but needs good cause: relevant to subject matter, 3) No discovery: info
related to parties and all other possible information. 26a-b, 30a, 32a, 33a, 34a, 35a, 36a, 37a

45(c)(1): parties not involved in suit require more protection-dont impose undue burden
DISCOVERY: Driving car when suddenly brakes failed. Injured in accident, sued manufacturer.
After discovery began, ask manufacturer to produce copies of personal income tax returns for
Cos CEO. Should I have obtained permission from the Ct first? No irrelevant to subject
matter of action DISCOVERY: Driving car when suddenly brakes failed. Injured in accident,
sued manufacturer. D has not asserted contributory or comparative negligence defense, but
nonetheless asks during deposition if I had been drinking at the time of accident. Should D have
obtained permission from Ct? Relevant subject matter but not relevant to claim (whether
brakes were defective) good cause must be shown
SUM JUD: D moves for SJ and submits affidavit of witness-says light was green. P responds
with affidavit of witness who says light was red. No SJ, for jury to decide, General issue of
material fact, non-movant may win through silence
(JMOL) Rule 50: party has been fully heard on issue at trial, ct may grant JMOL, resolving
issue against party if Ct finds insufficient evidence for jury to reasonably find for nonmoving party. May be entered sua sponte, without motion, after party has been fully heard on
issue but before case was submitted to jury (specify judgment sought and the law/facts that
entitle movant judgment): doesnt weigh evidence, 2) disregards evidence favorable to the
moving party, 3) doesnt judge credibility of witnesses. Renewed motion of judgment (JNOV):
if ct. doesnt grant JMOL, Ct is considered to have submitted action to jury, subject to the
cts later deciding the legal questions raised by the motion..JMOL has never been filed
before the case went to jury, it cannot be made after
JMOL: At trial, P testifies D hit Ps car, and P suffered injuries. P offers no evidence regarding
color of light At end of Ps presentation , D files JMOL. Why? P has burden of production
Grounds for a NEW TRIAL: substantive: jurys verdict was against great weight of evidence,
excessive damages, procedural: erroneous admission or exclusion of evidence, erroneous
jury instructions (applied wrong law), conduct of trial unfair, jury misconduct, newly
discovered evidence existed at time of trial was overlooked and would have altered outcome
NEW TRIAL: P sues D for negligence when Ds car brushed against P while he was crossing
the street in a crosswalk. The evidence at trial was that P staggered back from the brush-by, but
he showed no visible injury at the time and did not subsequently go to the doctor. He lost no time
from work. The only testimony about his injuries was his own, that my leg throbbed. After
trial, the jury returns a verdict of $1.6 million in compensatory damages. Why no judgment as
matter of law? Substantive excessive damages Cant conclude that a reasonable jury would
find that damages were that high; not a complaint about the law 59
REMITTUR: if the Ct determines that a verdict was excessive, the Ct may offer a reduction of
the verdict, and grant a new trial on the condition that the remittur is not accepted
ADDITUR: Ct gives D the option of paying more than the verdict or having a new trial
CAN CLAIM BE ASSERTED: Parker (MA) sues Douglass (VT) for negligence in causing an
auto accident. Douglass asserts a third-party claim against Tina (VT) seeking contribution on the
negligence claim against him. Parker then asserts a claim against Tina for negligence in the
same accident that was the basis for his claim against Douglass. Parker also asserts a claim
against Tina seeking damages for unrelated breach of K. Can Douglass assert his claim against
Tina? Yes standard contribution/indemnification May Parker assert his claims against
Tina? yes -any claim arising out of same transaction/occurrence (14(a)(3)) + unrelated
breach of K claim 18(a) even though unrelated, brought since other claim was proper

SMJ OVER EACH CLAIM: Parker (MA) seeks $100K in damages in negligence claim
against Douglass (VT), while Douglass seeks $50K in contribution from Tina (VT) on his thirdparty claim. Parker seeks $100K in damages on negligence claim against Tina and $25K in
damages on breach of K claim. Action is brought in Vermont fed Ct. Does Ct have SMJ over
each claim? P v. D negligence in accident (100K) SMJ (div cit + amount controversy); D v.
3rd for contribution for negligence claim (50K) NO SMJ for contribution (no div/amount),
BUT supplemental (common nuclueus); P v. 3rd for negligence in accident (100K) + breach
of K (25K) SMJ 100K for negligence (div + amount aggregation not needed) ; SMJ 25K for
breach of K (single P can aggregate all claims against single D), no aggregation if the original
amount was not over amount in controversy
CLAIM PREC (RES JUDICATA): the final judgment on the merits of an action precludes the
parties from successive litigation of an identical claim in subsequent action. Requirements:
valid, final judgment, on the merits. SAME PARTIES REQUIREMENT: (are the same in
the prior suit OR have been available to P in prior suit 1) in privity: whatever Ct says that a claim
could not be precluded (agreement to be bound, pre-existing substantive relationship, represented
by someone with same interest) TRANSACTIONAL TEST: same nucleus of operative fact 1)
whether underlying facts in prior suit related in time/space/origin, 2) whether claims for a
convenient trial unit, 3) whether treatment as a unit conforms to parties expectations or
business understanding. VALID: SMJ, PJ, Venue, unless D doesnt raise jurisdictional issue
FINAL(even if appealed): nothing further Ct could do but enter judgment ON THE MERITS:
jury/bench trial verdict, summary judgment, JMOL, failure to state claim, default judgment, SOL
CLAIM PRECLUSION: Paul in accident while driving co-worker, Pam, home from work. Paul
sued Don (driver of other car), alleging Don negligently caused accident. Jury concludes Don
was not negligent, and Ct enters judgment in favor of Don. Subsequently, Pam sues Don for own
injuries from accident. Don raises affirmative defense of claim preclusion and moves for
summary judgment on these grounds. How should the Ct rule on the motion? No, the motion
of affirmative defense should not be granted; Pam not in privity with Paul
ISSUE PRECLUSION: precludes re-litigation of issues of fact/law that have already been
determined by judge/jury as part of earlier claim. Requirements: 1) same issue involved in prior
action, 2) actually litigated, 3)actually decided, 4) necessary to judg in 1st case
ACTUALLY DECIDED: Which issues must jury have decided to reach following general
verdicts, assuming all relevant issues actually litigated? **A. Negligence case where D has
pleaded contrib neg and contrib neg is complete defense, general verdict for P (If contr neg
is defense, for P to win, P must show: D was negligent and that the P was not negligent) B.
In same case, a general verdict for D. (dont know if they found who was/was not negligent
based on a general verdict) C. In same case, a summary judgment for P on liability. (if P
wins, we find P was not negligent, and D was) D. In a case for negligent malpractice and
battery against a doctor for surgical errors (jurisdiction permits P to assert both), general
verdict of $50K for P. (dont know if they found who did/did not negligently malpractice or
who did/did not commit battery based on a general verdict)
ESSENTIAL JUDGMENT REQUIREMENT: Suppose that the judge in Case #1 had found
that Cambria (D) was negligent and that Jeffery (P) was not. What issues would be precluded in
Case #2? case 1: P not negligent, D negligent outcome: P wins and no contributory
negligence; case 2: Ps non-negligence in the first case is an essential element to first case; Ds
negligence in first case is essential to the finding in the first case; both findings are essential to
the judgment issue preclusion