CIVIL PROCEDURE

FRCP 4: Servicep. 10
FRCP 7(a): Pleadings Allowedp. 5, 13
FRCP 8: General Rules of Pleadings (short and plain) p. 5, 10, 11
FRCP 9(b): Fraud/Mistake (particularity) p. 5, 8, 9
FRCP 10: Form of Pleadingsp. 5
FRCP 11: Signing Documents/Sanctionsp. 7, 8, 19
FRCP 13: Counterclaim/Cross-claimp. 12, 13, 25
FRCP 14: Third Party Servicep. 3, 25, 26
FRCP 15 (a)(c): Amendments Before Trial/Relation-backp. 11, 13, 14, 15
FRCP 18(a): Joinder of Claims
FRCP 19: Required Joinder of Partiesp. 4, 10, 26, 27
FRCP 20: Permissive Joinder of Partiesp. 25
FRCP 21: Misjoinder/Non-joinder of Parties
FRCP 22: Rule Interpleader (see 1335 for Statutory Interpleader) p. 28
FRCP 23: Class Actionsp. 4, 28, 29, 30
FRCP 24: Interventionp. 4, 27
FRCP 26: Discovery (Duty to Disclose) p. 15, 16, 17, 19
FRCP 30: Depositions (Oral Examination) p. 17, 18
FRCP 33: Interrogatoriesp. 17
FRCP 34: Production Documents/Informationp. 18
FRCP 35: Physical/Mental Examinationsp. 18
FRCP 36: Requests for Admissionp. 18
FRCP 50: Judgment As A Matter Of Lawp. 22, 23
FRCP 52: Findings and Conclusions by the Court/Judgment on Partial Findingsp. 24, 25
FRCP 54(b): Judgment on Multiple Claims Involving Multiple Partiesp. 24
FRCP 55: Default Judgmentp. 10
FRCP 56: Summary Judgmentp. 20, 21
FRCP 59: New Trial/Altering or Amending Judgmentp.23
U.S. Const. Art. III 1, 2: gives court jurisdiction over casesnot merely claims (a case comprises all claims
arising from a common nucleus p. 2
U.S. Const. Art. IV 1: Full Faith & Creditp. 35
U.S. Const. Amend. XIV 1: Due Process

I. SUBJECT MATTER JURISDICTION of the Federal Courts (State courts have general jurisdiction over most claims)
A. Generally
1. Need Personal Jurisdiction + Subject Matter Jurisdiction + Due Process (notice)
-personal jurisdiction: limits state/federal courts from trying D that lacks connection with the forum state
-SMJ: limits courts by determining which issues are heard by state, federal or both
2. Const. Art III 2 broadest limits on cases heard in Fed Crt (Congress has power to narrow, but not broaden)
3. Burden rests on party asserting claim
4. No time limit on objecting to Fed SMJ, can object anytime during lifetime of the trial
B. Federal Question Jurisdiction
1. (28 USC 1331) Fed Jurisdiction: all civil actions arising under the Const., laws or treaties of the U.S.
-gives fed. Courts SMJ regardless of amount in controversy
-in rare instances, can reach for Fed Q. when state law claims implicate significant federal issues
-3 requirements before a Fed Q may be found embedded in a state law case:
(1) involves a substantial question of federal law
(2) is framed in terms of state law
(3) requires interpretation of federal law to resolve the case
2. Well-pleaded complaint Rule: SMJ is established only when Ps statement of his own COA shows that it is
based upon those laws or the Constitution
a. TEST: When claim arises under:
(1) if the Constitution/Federal Statutes/Treaties creates the right OR
(2) when the law is a necessary element of a claim
b. Louisville & Nashville RR v. Mottley (1908) CB p. 197
-FACTS: D took away Ps free pass after Congress passed law against free passes anticipates Ds fed
law defense then invalidates def. w/ Constitutional 5th amend (due process) claim
-HOLDING: No Fed Qmust be part of Ps complaint; cannot anticipate Ds defense to raise Fed Q
3. Federal question jurisdiction is concurrent (can be filed in fed. and state court)
-if state law creates COA dependent on analysis of some federal issue, we usually deny SMJ
-ex. state tort negligence claim for improperly labeled food includes issues of FDA statute
-where fed law that forms element of state-law claim does not itself give rise to private right of action
no fed question jurisdiction over state law claim
C. Diversity Jurisdiction
1. 28 USC 1332: gives federal court SMJ based on citizenship of the parties when:
a. over $75K (good faith amount in controversy) AND the following:
b. (1) CNY v. CCA;
(2) CUSA v. A;
(3) CNY+A v. CCA+A;
(4) Foreign state (must be P) v. CUSA
***diversity must be determined at the commencement of the action
***in #3, does not matter if aliens are from the same country
c. Const. Art III 2 no $75 K limit; no mention of A v. A
d. abstention: If case involves important or novel state law issues, a federal court may abstain in order to give
the state court a chance to resolve the issue
2. Amount in Controversy must exceed $75K (excludes interest & court costs) (1332(a))
a. should a court determine during the course of trial that 75k will not be met, court does not lose jurisdiction
b. amount in controversy can be satisfied even if P seeks only nonmonetary relief (court just needs to place
value on the relief)
c. legal certainty rule: amount alleged in complaint controls unless it appears to be a legal certainty that
the P will recover less than 75k
d. aggregation
(1) Single P can aggregate very dissimilar claims against single D (R18(a) joinder of claims)
(2) Multiple parties can aggregate claims if:
-if 1 P meets amount, additional Ps can join claims (based on supp. jurisdiction)
-if no single P meets amount, aggregation is not allowed
e. past due interest is included (the interest referred to in 1332 does not include interest owed pursuant to
an agreement of the parties )

3. Citizenship of Individuals
a. Redner v Sanders (2000) CB. 207 (incomplete diversity)
-FACTS: DNY; P resides in France but was raised/educated and practices in CA
-HOLDING: a person is a citizen of the state in which he or she is domiciled.
b. Citizenship = US Citizen + Domicile
c. Domicile = Usual and permanent abode + Intent to remain
-Individuals can only have one domicile
-Domicile is determined at start of litigation (even if P or D later moves)
-Rep. of minor/incompetent/deceased has same citizenship of one representing them (1332(c)(2))
d. 28 USC 1332(a)(4) resident (permanent) aliens is deemed a citizen of the state in which he resides
(1) Provision is meant to restrict diversity jurisdiction, not to expand it
(a) Limited to situations where other side is citizen of state (so stay in state crt)
1) ex. citizen of NY v. citizen of Canada permanent resident status in NY = State crt
(b) Also constitutional problem cannot have Alien v. Alien
(2) Arguments that there should be jurisdiction here
(a) Plain reading of statute maybe Congress did intend to expand jurisdiction
(b) Diversity rule meant to protect from bias against out-of-staters
4. Citizenship of Corporations (1332(c)(1))
a. Can have multiple citizenships (in class, Spillenger said up to dual-citizenship):
(1) State where it is incorporated (usually just one state)
(2) Principle place of business (only one)
-Corporations nerve center where high level executives make decisions (usually HQ)
-Corporations muscle center where business activities occur
-nerve center is binding for citizenship, NOT muscle center
(3) To satisfy complete diversity, opposing party must be diverse from ALL of Corp.s citizenships.
b. partnerships has citizenship of each of its partners
5. Complete diversity rule: no P can be citizen of the same state as any D
-28 USC 1332(a)(3) exception in case involving aliens (resident but does not have citizenship)
(1) creates special rule for cases involving both citizens of U.S. states and foreign citizens
(2) complete diversity requirement still exists among U.S. parties but not alien parties
-ex. P1 = CA, P2 = China; D1= MA; D2 = China (diversity satisfied)
-ex. no diversity for A1+C1 v. A2 (its constitutional, but Congress has not allowed it)
-Neither Art. III nor 1332 allows federal court to hear case that involves only aliens, even if they are
from different nations
D. Supplemental Jurisdiction (pendant; ancillary)
1. Purpose judicial economy, efficiency, convenience
2. Supplemental Jurisdiction is possible only when at least one claim independently qualifies for federal SMJ
under some statute other than 28 USC 1367 (federal claim)
3. 28 USC 1367 2 Step Process:
(1) determine if state and federal claims have a sufficient factual relationship to qualify
(2) if relationship exists, supplemental jurisdiction can still be precluded by exceptions. See 1367(b) (c)
-if exception applies, court will toss out only the state law claim in question and retain jurisdiction
over remaining claims
-unnecessary to consider supp. jurisdiction if single P + single D b/c if P has one claim that can
make it to fed. court, all other claims are aggregated even if unrelated under R18 (total amt. of
all claims must be > 75k)
a. 1367(a) Relationship Test
(1) The basic analysis for whether the state and federal claims are sufficiently related is if they form
part of the same case or controversy or common nucleus of operative fact
-if claims involve many of the same parties/evidence, likely to satisfy)
(4) United Mine Workers v. Gibbs (1966) (P asserts jurisdictional proper claim + state law claim)
-HOLDING: Art. III gives federal courts jurisdiction over casesnot merely claims. The court

reasoned that the concept of case was broader than claim; that a case comprises all
claims arising from a common nucleus
b. 1367(b) EXCEPTION when based solely on diversity
(1) Only bars state law claims by plaintiffs against Ds who are made parties under FRCP 14, 19, 20, or
24, as well as claims made by parties who intervene as plaintiffs under FRCP 24 or who joined as
involuntary plaintiffs under FRCP 19
(2) Exxon Mobil Corp. v. Allapattah Servs. (2005) (handout)
-HOLDING: can use supp. jurisdiction to remedy amount in controversy issues, but it cannot be used
when there is incomplete diversity
-NOTE: claims by multiple Ps not barred by 1367(b) b/c the Ps joined voluntarily rather than being
joined as required by 1367(b)
c. 1367(c) give Fed Courts discretion to decline supp. jurisdiction if:
(1) Claim raises state law
(2) that is raises novel or complex issue of state law OR
(2) state law claim substantially dominates over claim fed court has original jurisdiction over
-could be measured by money, time/effort for court, quantity of state vs. fed. claims
-Szedrey-Ramos v. First Bancourp (2007) p. 226
-HOLDING: found that the state law claims predominated over the federal claims b/c P
brought a number of complex state claims which required extensive analysis
(3) District court dismissed all claims it had original jurisdiction over
(4) Other compelling reasons/exceptional circumstances
d. 1367(d) statute of limitations is tolled while the case is in fed. court if court dismisses claim, 1367(d)
affords P the chance to refile dismissed claim in state court
E. Removal (1441, 1446, 1447 )
1. Generally any action brought in state court that the P that could have been brought in federal court originally
may be removed to federal court by D
2. Only D can remove (P defending counterclaim may not remove); only from state court federal court
(1) 1441(a) removal only to fed court in district where action is pending
(b) when SMJ is satisfied solely no diversity, cannot remove if any D is on home turf (even
if complete diversity) b/c no bias
exceptions:
1. If case based on Fed Q, D may remove regardless of citizenship/home turf
2. Class actions
3. If P does not object to removal
(f) federal crt. that receives removal can review claims that state crt. did not have juris. over
**case must be removed as a WHOLE
**if multiple Ds, ALL have to join removal to be successful
(2) 1446 Procedure for removal
(a) Short and plain statement describing grounds for removal
(b) Filed w/in 30 days after notice that removal is possible (ex: dismissal of non-diverse D)
**Exception no removal based on div ctznsp 1 yr after commencement of action
**Multiple Ds 30 day begins for each D when that D is served; Ds whose 30 day period has
run dry can still join a removal claim made by other D
(3) 1447 Challenging removal
(c) Multiple claims
-Motion to remand must be made within 30 days of filing of notice of removal
-Case lacking SMJ can be remanded at any time (if state claim dominates)
(e) After removal, P joins new Ds to destroy SMJ (div) (crt may deny joinder or remand to state crt)
3. NOTE: removal is based on original Ps pleadings (thus, if Ps claim is for 60k in damages even though actual
injury is worth over 75k, D cannot remove b/c it fails amount in controversy)
----------------------------------------------------------PHASES OF A LAWSUIT------------------------------------------------------

II. PLEADING a pleading is the means by which the parties advise the court and each other of the claims and defenses
they plan to assert at trial
A. Complaint consists of factual allegations (not necessary true)
1. Essential Elements of a complaint:
i. short and plain statement of the grounds upon which the courts jurisdiction depends
ii. short and plain statement of the claim showing that pleader is entitled to relief
iii. demand for relief the pleader seeks
2. Gillispie v. Goodyear Service Stores (1963) (handout)
-HOLDING: complaint must allege material facts upon which Ps right of action is based when a
complaint is merely conclusory it fails to state a COA and is dismissible
-Need allegations that, if true, give rise to inferences to elements of cause of action
2. Elements of Cause of Action (FRCP 7, FRCP 8, FRCP 10)
(1) Complaint must allege facts for every element of the cause of action
(2) FRCP 7(a) details what pleadings are allowed (all other issues are raised by motions)
(a) 1.complaint; 2.answer; 3.reply to counterclaim; 4.answer to cross-claim; 5.third-party
complaint; 6.third-party answer. Crts may order reply to answer/3rd party answer.
(b) complaint: paper filed by P that describes the underlying event and sets out the claim(s)
(c) answer: contains a partys response to all claims, including counterclaims
(d) reply: essentially an answer to another partys answer and only occurs when a court orders it
via FRCP 7(a)(7) OR when Ds answer designates a counterclaim via FRCP 7(a)(3)
(3) FRCP 8 general rules of pleadings
(a) Rule 8(a) short & plain statement (that gives Ds adequate notice) that gives:
1) Basis for SMJ jurisdiction: diversity, Fed Q., supp. (NOTE: PJ need not be alleged)
***if Fed. Q. typically cites the federal statute or constitutional provision involved
***if Diversity state citizenship of parties and specify that amt. in controversy > 75k
***if Supp. indicate the claim in the suit to which the claim in question is supplemental +
specify that the claim forms part of the same Art. III case
2) Claim, if true, entitle P to relief
- satisfy notice pldg obligations enough for D to formulate response
- dont have to give legal theories
- Exception FRCP 9 (pldg with particularity on fraud/mistake issues)
3) Demand for judgment setting out the relief sought
(b) Rule 8(b) D must answer each claim asserted (admit, deny, or deemed deny [dont know])
-Failure to reply deemed as admission to all except amt of damages (Rule 8(d))
(c) Rule 8(c) D has burden to assert new facts/arguments to prove affirmative defenses
-can refuse to answer by claiming privilege (free from self-incrimination- 5th Amend.)
(4) FRCP 10 requires pleadings to fit a basic format
(a) Case Info every pleading must contain a caption
i. name of court
ii. title of action (in re complaints, this includes names of all partiesin subsequent
pleadings only need to state the 1st P and 1st D)
iii. file number
iv. designation for type of pleading
(b) FRCP 10(b) requires parties to divide their claims and defenses into separate paragraphs (rarely
enforced)
(c) FRCP 10(c) allows exhibits (can attach written docs such as contracts)
(5) Haddle v. Garrison (1996) CB 375
-FACTS: Plaintiff Michael A. Haddle appealed a District Courts dismissal of his suit for failure to
state a claim upon which relief could be granted under 12(b)(6).
-HOLDING: Appeals from FRCP 12(b) (6) motions are not reviewable where binding precedent
renders the complaint without legal recourse
(6) Responses to a Complaint:
(a) FCRP 12(b)(6) = so what based on the facts of Ps complaint, no recovery is possible under

any legal theory

(b) denial = I didnt do it
(c) affirmative defense =yes, but requires D to provide supplemental facts
(d) jurisdiction/technical objections attacks complaints NOT on the merits of argument
(7) Mitchell v. Archibald & Kendall, Inc. (1978) (handout)
(a) FACTS: P filed suit to recover damages for injuries suffered on land adjacent to Ds
property P appeal dismissal of COA for failure to state a claim complaint
sought damages for injuries suffered by P as a result of Ds negligence
(b) HOLDING: dismissal was proper under Rule 12(b)(6) the owner of land has no duty to
invitees
beyond the boundaries of his land.
-When deciding whether a Motion to Dismiss was properly granted, the court is only
required to accept well-pleaded facts as true w/o considering any new legal theory
presented by P
-P could have amended complaint to incorporate new theory BUT by appealing instead they
elected to stand on their original complaint
(c) DISSENT: dissent is in agreement with the majority that D had no duty to protect against criminal
acts of third persons on a public street. However, the facts of this particular case
created a duty due to the increased risk.
(8) Bell Atlantic Corp. v. Twombly (2007) (handout)
-FACTS: P, subscribers to local phone/internet services, sue Bell Atlantic and local telephone
companies allege that they violated that anti-trust laws by agreeing not to compete
and to exclude other competitors to allow each local phone company to monopolize
-HOLDING: antitrust conspiracy was not suggested by the facts Under 1 of the Sherman
Act, stating a claim requires a complaint with enough factual matter to suggest
that a valid claim arises.
-FRCP 8(a)(2) requires only a short and plain statement of the claim showing that the
pleader is entitled to relief, in order to give the defendant fair notice this required
more than labels and conclusions
-parallel, without more facts, does not imply conspiracy
-discovery is very expensivecourts want to be sure complaint is strong enough to warrant
expense
-DISSENT: allegation describes unlawful conduct thus FRCP, longstanding precedent, and sound
practice mandate that the court at least require some sort of response from D before
dismissal
-Conley precedent is the broadest protection of complaint only if there is no possible way fact are
sufficient should we dismiss the motion (Majority rejects this)
(9) Ashcroft v. Iqbal (2009) p. 390
-FACTS: P files suit alleging unconstitutional arrest/imprisonment (designated a person "of high
interest" to the September 11 investigation) D move to dismiss on 12(b)(6)
-HOLDING: Complaint was not plausible (did not form a well-pleaded complaint)
-in light of 12(b)(6) motions to dismiss, courts will assume Ps factual allegations are true but
pure legal conclusions dont qualify for this taken as true treatment
-allegations that are factually true must plausibly suggest that P is entitled to relief
-judge will use his judicial experience and common sense
-a claim has plausibility when the P pleads factual content that allows the court
to draw the reasonable inference that D is liable (need more than just a possibility)
-to state a claim based on a violation of a clearly established right, the detainee had
to have pled sufficient factual matter to show that petitioners adopted and
implemented the detention policies not for a neutral, investigative reason, but for the

purpose of discriminating on account of race, religion, or national origin.

-complaint had not nudged the claims of invidious discrimination across the line from
conceivable to plausible.
-DISSENT (Souter): Majority does away with supervisory liability under Bivens. The
majority then misapplies the pleading standard under Twomby the
main fallacy in the majoritys position is that they are looking at P's
allegations in isolation and not as a unit. Furthermore, P is alleging
that not only that Ashcroft and Mueller allowed the discrimination
policy, but that they created it.
-DISSENT (Breyer): neither the briefs nor the Court's opinion provided convincing grounds for
finding that trial courts had inadequate means to prevent unwarranted
interference with "the proper execution of the work of the government
***Spillenger things Bell Atlantic is much more troubling getting very close to using 12(b)(6)
to find the facts (that is, make statements that likely happened)
***Ashcroft and Bell Atlantic Takeaways
(1) it was unusual for 12(b)(6) motions to be granted Ashcroft and Bell Atlantic are
recent cases that changed the landscape of what pleadings require lowered number of
cases filed; increased number of 12(b)(6) petitions
(2) court worried about costs of discovery, forced settlement
(3) even though Ashcroft said Bell Atlantic standard applicable in all cases, probably wont
affect garden variety personal injury cases
-may affect employment discrimination (costs, accessibility of into to P prior to trial)
(4) plausibility test from Bell Atlantic doesnt have to be beyond a doubt, but conceivable
3. Inconsistency in Pleading (Alternative pleadings)
a. FRCP 8(d): A party may state as many separate claims or defenses as it has, regardless of consistency
b. McCormick v. Kopmann (1959) handout
-FACTS: McCormick was killed when a truck operated by Kopmann collided with his car P sued the
Kopman (operator of car) and Huls (owners of bar that McCormick had beer before the
accident) Count I: alleged that Kopmann drove across the center-line (wrongful death)
collided with McCormick Count IV: alleged that Huls sold alcohol to McCormick under
Dram Shop Act (alternative to Count I) and as a result, he drove his car in a manner that caused
collision Kopmann moved to dismiss the complaint on the grounds that the contradictions
between count one and count four were fatal TC denied his motion
-HOLDING: a complaint may contain inconsistent allegations, even though the proof of one negates any
fault on the foundation of the other
-P could not recover on both counts simultaneously, since the two counts are mutually exclusive
-alternative pleading not permitted when P knows which of the inconsistent statements are true/false
-Policy Argument: ensure that controversies may be settled and justice is accomplished
-key witness is dead, therefore, pleading alternative sets of facts is often the only feasible way to
determine what happened.
**inconsistent pleadings allow lawyers to make allegations before they are certain of facts and law
**P has to settle on single version of story before trial
**STRATEGY: if you sue parties simultaneously and lose you know the jury thinks both are not
negligent whereas if you sued parties consecutively and lose both times risk is jury acquitted
one party thinking the other was guilty
4. Honesty in Pleading FRCP 11 limits atty from saying anything to get past 12(b)(6)limits attys behavior;
does not imply the merits of the claim are frivolous
a. FRCP 11: strict stnds. designed to ensure honesty/accuracy in pleadings/motions (also applies to oral arg.)
b. Rule 11(a) requires atty to sign all pleadings/motions filed or served (some other docs dont need sig)
c. Rule 11(b) certifying to best of attys knowledge after an inquiry reasonable under the circumstances:
(deemed to have done proper research given the time constraint)
Subj (1) not for improper purpose (harass, delay, needless increase in litigation costs, etc)

Obj (2) warranted by existing law OR by legally non-frivolous argument for chg/est. new law.
Obj (3) will have evidentiary support after reasonable discovery (must identify)
Obj (4) denial of factual contentions reasonably based on lack of info/believe (must identify)
***this is a limitation to Rule12(b)(6); lawyer cannot allege bad facts to force complaint past dismissal
d. Rule 11(c) allows sanctions for anybody (law firms, partner, parties, unrepresented parties)
(1) How sanctions initiated
(1)(A) if raised by motion, offending party has 21 days cooling off period to withdraw/correct
prior to filing motion with court
(1)(B) If court raises issue sua sponte (on own initiative) no cooling off period (no chance to
withdraw) BUT court must issue an order to show cause why sanctions should not be
imposed
(2) What kind of sanction imposed?
-purpose is deterrence, purpose not compensation to moving party
-monetary (including punitive)/ Nonmonetary available
-consider willfulness, intent to injure, legal training, pattern of misconduct, added time/expense
of
litigation, minor or major part of pleading
e. Rule 11(d): does not cover discovery (covered by FRCP 37)
f. Golden Eagle v. Burroughs (1986 *** this is pre 1993 amendment to FRCP 11) handout
(1) FACTS: TC imposed sanctions on law firm and held that appellant engaged in misleading conduct
that contravened FRCP 11 for not stating good faith arg + not citing contrary authority
(2) HOLDING: Reversed (no sanctions) b/c TC's interpretation made FRCP 11 more complex than it
needed to be and created costly obstacles for lawyers.
-sanctions should not have been imposed where a plausible good faith argument was made
-FRCP 11 was intended to sanction attorneys who submitted motions/pldgs not supported in law
or fact and not for courts to evaluate, under ethical stds, accuracy of Ds arguments
g. Walker v. Norwest Corp. (1996) p. 416
(1) FACTS: DC imposed sanctions for filing a diversity case in which party failed to plead complete
diversity of citizenship and pleaded facts which tended to show there was not complete
diversity. Upon receiving the complaint, Norwest Corp. informs attorney that the complaint
showed on its face that there was no diversity jurisdiction and asked him to dismiss or face
sanctions. Attorney did not dismiss.
(2) HOLDING: Rule 11 does not require the court to identify diversity and allege citizenship for D; rather
attorney representing the P should identify citizenship of the Ds and establish diversity.
f. Christian v. Mattel (2003) p. 421 (failure to conduct adequate factual investigation)
(1) FACTS: Attorney brought suit on behalf of client, claiming that Mattels Barbie dolls infringed
clients doll copyright. TC found that P should have discovered prior to commencing the
civil action that D could not have infringed Ps copyright b/c Ds dolls had been created well
before Ps doll and Ds dolls had clearly visible copyright notices on their heads P
behaved boorishly during discovery and had history of prior litigation misconduct
(2) HISTORY: Rule 11 sanctions are limited to signed pleadings, motions and other filings.
-TC had failed to make clear what specific conduct it was ordering sanctions pursuant to b/c
AC was unable to tell whether the misconduct being sanctioned occurred outside the pleadings,
(such as in oral argument, meetings of counsel, or at a key deposition), AC had no choice but to
reverse the sanctions order given that Rule 11 sanctions are limited to the filing of court papers.
-FRCP 11(b)(3)
-Scope of holding signed document; excludes discovery per 11(d); not guard atty asshole
personality
**HYPO: if Christian atty only had one day before SOL ends, and files (no Rule 11 sanction cant
reasonably know in one day). Later presenting in court (Sanctions 11(b) incl. later advocating).
5. Specificity in Pleading Special Claims

a. FRCP 9(b) circumstances constituting fraud or mistake shall be stated w/ particularity (malice, intent,
knowledge, and other conditions of a persons mind may be alleged generally)
exception to 8(a)(2)s short + plain statement
(1) Common Law Fraud
(a) Stradford v. Zurick Insurance Co CB 401
-FACTS: P dentist brought an action against his property insurer seeking payment under policy
for water damage to his dentists office, to which the insurance company responded by
filing several counterclaims stating P made fraudulent claims
-HOLDING: need fair notice for fraud claims (FRCP 9(b) requires time, place, & nature of fraud)
-Court is stating that the counterclaims are insufficient b/c they do not provide a sufficient
basis for P or the Court to understand what it is exactly D is alleging that constituted
fraudulent conduct
(b) Elements of Fraud
(1) D made a statement (particularity)
(2) The statement is false (particularity)
(3) D knew it was false (general b/c can state Scienter generally)
(4) D intended P to rely (general)
(5) P relied (particularity)
(6) P was injured (particularity)
(2) Securities Fraud
(a) There are heightened standard of pleading beyond 9(b) for securities fraud
- PSLRA (Private Securities Litigation Reform Act of 1995)
- helps corporations Reqs = particularity; strong Inferences; scienter (intent for fraud)
(b) 15 U.S.C. 78u-4(b)(1)(B): if P alleges D omitted a material fact, complaint shall specify (1)
each statement alleged to be misleading and reason why its
misleading + (2) strong inference of Ds scienter
(c) Tellabs v. Makor Issues & Rights (2007)
-FACTS: Ps alleged that Tellabs misrepresented the strength of its products and earnings in order
to conceal the declining value of the company's stock. Under PSLRA, Ps bringing
securities fraud complaints must allege specific facts that give rise to a "strong
inference" that D intended to deceive investors (scienter).
-HOLDING: a securities fraud complaint must allege facts establishing an inference of guilty
intent that is "cogent and at least as compelling as any opposing inference of
non-fraudulent intent."
-use comparative evaluation: consider inferences urged by P + competing inferences
rationally drawn from facts alleged (view all allegations as a whole)
-reasonable < strong inference < smoking-gun
-lack of motive allegation is not fatal
-omissions/ambiguities count against inferring Scienter b/c P must state with particularity
-CONCUR (Scalia): test should be stronger inference of scienter must be more plausible than
not
-CONCUR (Alito): only facts that are alleged with particularity should be considered in
scienter analysis
(d) In re scienter elements, Tellabs increases stated generally strong inference
b. Civil Rights (attack on civil rights w/ attempt to heighten pleading reqs.)
(1) Leatherman v. Tarrant County Narcotics Unit (1993)
-FACTS: 2 cases involve the execution of search warrants by law enforcement officials, which arose
out of the forcible entry into Ps homes TC dismissed complaints b/c failed to meet
heightened pleading standard AC affirmed SC reverse
-HOLDING: court cannot require a higher standard specificity for a certain type of claim that is not
enumerated in Rule 9(b)

-Rule 9(b) imposes a particularity req. in re fraud /mistake but does not cover municipal liability
-Rules 8/9 could be rewritten by the legislature, but w/o amendment, courts must rely on
summary judgment and discovery to weed out the non-meritorious claims
-NOTE: this case is BEFORE Bell Atlantic and Ashcroft
6. Allocation of Burden
a. 3 Burdens: pleading, production, and persuasion
b. Gomez v. Toledo (S.Ct., 1980) handout
-FACTS: P officer told truth on corruption of investigation suspended and discharged w/o hearing
-Holding: D has burden of pldg he acted in good faith (subjective, he has info to it). D also has burden of
pldg qualified immunity (affirmative defense goes in Ds answer (Rule 8(c)).
-Nothing in the language of 1983 suggest that P must allege bad faith in order to state a valid
claim for relief
-Since qualified immunity is a defense, the burden of pleading it rests with the D
-D in better position to provide evidence in re his subjective intent
**Burden of pldg now does not mean have burden of proving (persuasion) later
c. Jones v. Bock (2007) p. 407
-FACTS: P was a prisoner sued the state after he suffered injuries in custody when the staff refused to
reassign him to work he could perform in light of his injuries Prison Litigation Reform Act:
no action shall be brought in re prison conditionsuntil all administrative remedies are
exhausted
-HOLDING: P need not plead and demonstrate exhaustion of administrative remedies in the complaint.
-FRCP does not require that exhaustion be pleaded, and Rule 8(c) identifies a non-exhaustive list of
affirmative defenses that must be pleaded in response, leaving room for exhaustion as an affirmative
defense.
-In addition, the PLRA which deals extensively with the subject of exhaustion, is silent on the issue
whether exhaustion must be pleaded by the P, or as an affirmative defense by D this supports the
fact that the usual practice should be followed (usual practice under FRCP is to regard exhaustion as
an affirmative defense)
-Contrary view is reasonable but the way to establish higher pleading requirements is to amend the
FRCP, not on a case-by-case basis in courts.
**important b/c typically the one who has the burden of pldg has the burden of providing evidence later
in the trial
B. Defendants Response to Complaint
1. General
a. So What FRCP 12(b)(6) (motion to dismiss for failure to state a claim on which relief can be granted)
b. I didnt do it FRCP 8(b) and 8(d) (factual denial)
c. Yes, but FRCP 8(c) (affirmative defense)
d. Technical Objections FRCP 12(b) 1-5, 7 (motion to dismiss for lack of jurisdiction, etc.)
2. Default D fails to respond to complaint
a. When complaint has been filed and served what does D do?
(1) D waives being served (Rule 4(d)) 60 days (instead of usual 20 days) to file answer (12(a)(1))
(3) D files motion to dismiss, and denied, then D has 10 days after notice of crts action to file answer
b. Rule 55 if D does nothing, (1) clerk enters party default; (2) P moves for default judgment; (3) crt rule
c. How to compute time (6(a))
(1) Count next day as Day #1; if final day lands on weekend/holiday, go to next business day
(2) If amount of time is 11 days or more, count weekends/holidays in calculation
(3) If amount of time is 10 days or less, do not count weekends/holidays
3. Pre-Answer Motions and Rule 12(b) Defenses
a. Rule 12(b) permits certain defenses to be raised by pre-answer motion (ends case w/o reaching merits)
(1) Lack of SMJ (unwaiveable crts can always dismiss 12(h)(2))
(2) no personal jurisdiction (waived)
(3) improper venue (waived)
(4) insufficient process the actual doc itself - i.e. missing signature (waived)
(5) insufficient service of process how the doc was delivered (waived)

10

(6) failure to state a claim upon which relief can be granted (unwaivable 12(h)(2))
(7) failure to join party under Rule 19 (unwaivable 12(h)(2))
Rule 12(e) motion for more definite statement (too vague to respond to)
-not particularly effective extremely vague complaints can be dismissed via 12(b)(6) or more
information can be produced during discovery
Rule 12(f) motion to strike (insufficient defense, immaterial, redundant, scandalous matter)
-allows D to attack a specific portion of the complaint (works like 12(b)(6) but removes only part of
the complaint)
-also allows D to remove gratuitously nasty or redundant/immaterial language
Rule 12(c) Motion for Judgment on the Pleadings
-resolves case in situations where the parties pleadings reveal agreement about the relevant facts and
only the applicable law is in question (discovery not needed) proceed straight to judgment
-NOTE: this occurs after the answer is filed
b. Waiver provisions
(1) 12(g) Rule 12 motions must be raised together, or waived forever (except those in 12(h))
(a) Right to join motion under this rule may be joined with any other motion under this rule
(b) Only 1 pre-answer motion raising Rule 12 defenses are permitted prevents D from stalling
(c) Allows D to raise defenses later if they were unavailable at the time
(2) 12(h)(1)- If no pre-answer motion, D must raise Rule 12 defenses in answer OR in amendment
to answer permitted by Rule 15(a), or forever waive Rules 12(b)(2)-(5) or (e) defenses.
(3) 12(h)(2) unwaivable defenses (12(b)(1) or (6) or (7))
(4) Defenses that can be waived at any time: SMJ, 12(b)(6) failure to state claim, 12(b)(7) failure to join
necessary party
c. NOTE: motions, unlike pleadings (complaint/answer), does not require a party to set forth her version of
the facts alleged in the complaint; simply a request for court to take some action (***still subject
to Rule 11 Sanctions)
4. Answer D respond to complaints substantive allegations w. a short and plain statement of his defenses
a. Denials
(1) Rule 8(b) requires specific denial for each allegation; or a general denial against ALL allegations;
denial based on insufficient info; failure to deny (allegation admitted)
(2) Rule 8(d) any allegation not denied is deemed admitted
**NOTE: must admit when you KNOW its true; can deny when you dont exactly know its true or
when (hypo: Ps friend tells D fact. D can deny b/c Ps friend has a biased interest)
(3) Zielinski v. Philadelphia Piers, Inc. (1956) p. 433
-FACTS: P alleged injury by a forklift owned D and operated by Ds employeeD generally denied
allegationsAfter the statute of limitations had passed, discovery revealed that D did not
own the forklift and Ds employee was not operating forkliftP sought a pretrial order that
D admitted ownership of the forklift and agency of the operator of the forklift, on the
grounds that Ds general denial was ineffective.
-HOLDING: D must file specific denial, not general denial when some allegations are trueUnder
Rule 8(b) allegations that are not specifically denied are deemed admitted.
-general denial was ineffective b/c D admitted in its letter to the insurance company that P was
injured by a forklift. To be effective, D must have specifically denied ownership of the forklift
(Since D did not contest P's injury or the fact of the collision, it should have made a specific
denial only as to the agency allegation)
-per state law, an allegation of agency is deemed admitted if D seeks to amend the answer after
the statute of limitation has expired.
-per equitable estoppel, D cannot take advantage of Ps mistake when the mistake was
perpetuated by Ds inaccurate responses regarding ownership and agency
b. Affirmative Defenses
(1) Rule 8(c) non-exhaustive list of affirmative defenses raised during pleading stage
i. contributory negligence
ii. fraud
iii. res judicata (preclusion)

11

iv. statute of limitations

v. illegality
(2) Layman v. Southwestern Bell Telephone Co. (1977) handout
-FACTS: P alleged that D had trespassed upon her land and installed underground telephone wires.
upon entering their answer, D introduced a recorded easement granting them permission
to enter Ps land.
-HOLDING: D must assert an affirmative defense under FRCP 8(c) in order to introduce extrinsic
evidence in his answer to the complaint.
-D mistakenly used general denialdistinction between a general denial under 8(b) and an
affirmative defense under 8(c) is vital b/c an affirmative defense transfers the burden of proof
to the D
-Raise affirmative defenses or risk waiving them
-Test to determine if it is an affirmative defense: whether the D intends to rest his defense upon
some fact not included in the allegations necessary to support the Ps case
c. Statute of Limitations special affirmative defense
(1) United States v. Kubrick (1979) handout SofL in re medical malpractice
-FACTS: P underwent treatment for his femur at VA hospital. After his release, P was diagnosed with
bilateral nerve deafnessdoctor suggested that the loss caused by the use of neomycin
when the VA hospital treated his femurP sued and judgment was entered in his favor,
finding that P had no reason to suspect negligence until a conversation in June 1971TC
held that Ps claim accrued as of June 1971 and was well within the two-year statute of
limitationsAC affirmed
-HOLDING: SofL does not accrue when P learns that his injury was negligently inflicted (or when
injury occurs) accrues when P has notice of injury.
-When P knows he has been hurt, there are others who can tell him if he has been wronged and he
need only ask (P need only have made inquiry to a doctor of average training to determine that
he should not have been treated with neomycin)
-To excuse P of prompt action and thereby postponing accrual would undermine the purpose of
SofL (to eliminate stale claims)
-DISSENT: SofL does not being to run until after fair notice of the invasion of Ps legal rights
-Normally a tort claim accrues at the time of injury but it is well settled that the normal rule does
not apply to med mal claims In med mal cases the harsh consequences of the standard
approach has been generally considered unacceptable.
-P exercised reasonable diligence in attempting to establish a medical basis for increased
disability benefits. That diligence produced denials and even fabrications. The issue of diligence
in a negligence case should be resolved by the finder of fact.
4. Counterclaims Ds claims against P (any party can propose counterclaims against opposing party)
a. Compulsory counterclaims
(1) Rule 13(a) compulsory counterclaims arising out of the same transaction or occurrence that gave
rise to Ps complaint + does not require addition additional party
(a) Must raise in answer or waive right to bring compulsory counterclaim
(b) Must have SMJ over all parties involved (incl. new 3rd parties)
-compulsory CC is within fed courts supplemental jurisdiction
-permissive CC is probably not within supp. juris.needs to independently satisfy SMJ
(c) Exceptions to 13(a) (all Compulsory CC must arise out of same T/O, BUT not all CC arise out
of same T/O are Compulsory)
1) immature claims (CC not mature till after party served answer pldg, can go under 13(b))
2) not compulsory until when party w/ CC required to file responsive pldg
3) lack of jurisdiction over 3rd parties, no matter how overlapping
4) CC is currently already being litigated in another action
(d) Policy for Joinders: efficiency and consistency if two claims overlap significantly it is
inefficient for courts to review two separate cases and risks inconsistent results

12

(2) Plant v. Blazer Financial Services (1979) p. 798

-FACTS: P executed a note in favor of D to be paid in monthly installments no pmts were made on
the note P commenced a civil action for failure to make disclosures required by the Act
D counterclaimed on the note for the unpaid balance TC held D violated the Act and
awarded P the statutory penalty and attorneys fees. The trial court ruled that counterclaim
was compulsory and offset Ps award P appeals (jurisdictional issue)
-HOLDING: A permissive counterclaim must have an independent jurisdictional basis, while it is
generally accepted that a compulsory counterclaim falls within the supp. jurisdiction
of the federal courts even if it would ordinarily be a matter for state court jurisdiction.
A counterclaim is compulsory where the obvious interrelationship of the claims and
rights of the parties, coupled with the common factual basis of the claims, demonstrates
a logical relationship between the claim and counterclaim
-28 U.S.C. 1367 is basis for supplemental jurisdiction
-logical relationship test: loan transaction gave rise to both P and Ds claims (same aggregate of
operative facts)
-Fairness requires Ds debt claim to be heard too
-4 tests to define same transaction or occurrence (affirmative answer to any of the below test
compulsory:
1. Issues of fact and law raised by C and CC largely same
2. Res Judicata would bar subsequent suit
3. Substantially same evidence support /refute C and CC.
-more narrow than logical relationship test
4. logical relationship between C and CC
-must derive from the same underlying set of facts (doesnt need tight logical link)
b. Permissive counterclaims
(1) Rule 13(b) permissive CC; not same transaction or occurrence or exceptions to 13(a)
(a) Must have independent basis of federal jurisdiction to be heard in federal court (federal question,
amt. in controversy, supplemental jurisdiction)
(b) supplemental jurisdiction often not available b/c different T/O)
c. Cross-claims (filed by one co-party against another; ex. D vs. D)
(1) Rule 13(g) cross-claim against co-party always optional (permissive)
(a) test: 1. arise out of same T/O as original action; 2. ask for actual relief
(b) within supp. jurisdiction and thus need no independent jurisdictional grounds
(c) once party served with cross-claim, party becomes opposing party and must file any
counterclaims required by FRCP 13(a)
d. Affirmative Defenses v. Counterclaims
-FRCP 7(a)(3) requires a reply if the answer contains a counterclaim designated as a counterclaim
(if designated as an affirmative defense then reply is not required)
-CC are claims in their own right (a request for relief)
-an affirmative defense is not a claim for reliefit is a defense
C. Amendments to the Pleadings discovery may reveal facts parties want to change story
1. General
a. Rule 15(a) party may amend ONCE without obtaining court permission/ consent of opposing party when:
(1) if non-responsive pleadings: must amend within 21 days after the pleading is served
(2) if responsive pleading: must amend within 21 days following service of the earlier of the responsive
pleading OR a Rule 12(b),(e), or (f) motion
-NOTE: an answer w. a counterclaim is a responsive pleading (answers typically not responsive)
b. Filing further amendments requires consent of opposing party or permission of court
-Rule 15(a)(2): leave to amend shall be freely given when justice so requires then the burden is
on opposing party why amendment not permitted.
c. Joined party via amended pldg, allow joined party 10 day (min.) from day of service to respond.
2. Prejudice leave to amend is denied only when opposing party can show substantial prejudice
a. Beeck v. Aquaslide N Dive Corp. (1977) p. 444

13

-FACTS: P was injured using a water slide sued D alleging it manufactured the slide D initially
admitted it had manufactured the slide in its answer to the complaint on 12/17/73 6.5 months
after statute of limitations expired, D discovered the slide was not manufactured by them D
moved to amend its answer to deny manufacture TC granted leave to amend.
-HOLDING: W/o bad faith on the part of D, courts will generally grant D leave to amend his answer to a
complaint unless it will clearly prejudice the ability of the P to proceed with his suit
-FRCP 15(a)(1) does not apply b/c over 21 days
-FRCP 15(a)(2): court should grant leave freely given when justice so requires.
-prejudice: while justice allows party to amend, court must also balance the issue of prejudice to the
opposing party, in light of the particularly facts of the case.
-court reasoned that permitting leave to amend would not necessarily result in irreparable harm to the
P (not certain that P would be unable to re-file against the proper D despite the SofL) Instead, the
court reasoned that the amendment would merely allow the D to contest a disputed factual issue at
trial, and further that it would be prejudicial to the D to deny the amendment.
-NOTE: the court determined that the risk of harm to the P in granting leave to amend was less than the
risk of having the wrong D pay for a harm it did not inflict.
3. Relation Back (effective to use when SofL ran out) (**on exam, satisfy 15(a) first then 15(c))
a. Amending to ADD A CLAIM (amendment relates back to the date of the original pleading)
(1) Rule 15(c)(2) Amended pldg relates back when new claim/def. arose from the same conduct,
transaction, or occurrence as original pldg
-test: courts take a fairly narrow view if whats amended is simply Ps claim or theory, the
court will probably find same conduct test is satisfied; but where the underlying facts needed to
sustain the new pleading are material different for those alleged in the original complaint, likely
not met
(2)Moore v. Baker (1993) p. 450
-FACTS: P consulted D about a blockage of her carotid artery D recommended surgery
operation left P permanently disabled Ps complaint alleged that D violated informed
consent law by failing to advise her of an alternative therapy D filed a motion for
summary judgment 20 days later, P moved to amend her complaint to assert negligence
claim TC refused to allow P to amend her complaint on grounds that the SofL bars the
claim asserted in Ps proposed amended complaint unless the amended complaint relates
back to the date of the original complaint
-HOLDING: determination of whether an amended complaint may relate back to the date of the
original complaint is whether the original complaint gave sufficient notice or warning
to the D of the possibility of a suit involving the claim now being asserted
-original complaint contained nothing to inform D that claims of negligence in the operation
might be asserted
-in addition, P would have to prove a completely different set of facts in the amended complaint
claim did not arise out of the same occurrence as the claims in the original complaint
(2) Bonerb v. Richard J. Caron Foundation (1994) p.452
-FACTS: P alleged that he was injured while he was a rehabilitation patient at Ds facility P
claimed that the D negligently maintained the basketball court TC granted Ps motion
for substitution of new counsel. P moved to amend his complaint to add a new COA for
counseling malpractice. Ps new attorney alleges that investigations undertaken since
he became Ps attorney indicate to that a malpractice claim is appropriate D objected on
the grounds that the malpractice claim does not relate back to the original pleading and was
therefore barred by PAs 2-year SofL
-HOLDING: Even if an amendment to a complaint changes the legal theory of a case, the amendment
will relate back so long as the original complaint states the same general facts that a
the amended claim is based on, even though it would otherwise be barred by SofL
-relation back doctrine is based upon the principle that one who has been given notice of
litigation

14

concerning a given transaction has been provided with all the protection that SofL are designed
to afford b/c the court found that both claims arose from the same set of facts (the injury
suffered by P at Ds facility), then D was given sufficient notice of possible future related claims
b. Amending to CHANGE PARTY or PARTY NAME
(1) Rule 15(c)(3) added party (1) same T/O; (2) not prejudiced; (3) D served w/in 120 days of filing
complaint (4(m)); and (4) D knew/ shouldve know it was party being sued but for mistaken ID
(2) Worthington v. Wilson (1992) handout
-FACTS: P was arrested by 2 officers who allegedly twisted Ps hand and broke it Exactly 2 years
later, P filed a complaint against Peoria Heights, Illinois and 3 unknown officers Peoria
Heights removed the action to federal court P filed an amended complaint, which named
the real identity of the two officers as Ds Ds moved to dismiss on the grounds that they
lacked notice when SofL had run and does not fall under mistake exception
HOLDING: Under FRCP 15(c), adding an additional party by amendment of the pleadings only
relates back to the date of the original complaint if the parties originally listed were listed
by mistake. Mistake means the wrong name, not listing unknown or something
else to indicate lack of knowledge or identity of the party.
1. Notice requirement satisfied
-Under the old version of Rule 15(c), a party later added by amendment must receive actual
notice before the SofL runs in order for the amendment to relate back to the date of the
original complaint.
-Under the new version, the party need only be aware of the action within 120 days of the
complaint being filed in order to relate back to the date of the original complaint.
2. Mistake Exception
-failure to name parties due to lack of knowledge is not naming different parties by
mistake. the exception for mistake under Rule 15(c) does not apply if the party seeking
amendment did not initially know the identity of the party.
-state law pertaining to relation back does not govern the issue. State law only applies when the
state law addresses an issue the federal law does not. It is clear that 7 th Circuit precedent states
that unknown parties are not mistaken parties subject to the relation back rule (federal law
addresses the issue) Thus, federal law applies.
4. How do to Amendment to Pleading Analysis
-Did SOL run when amending?
(a) NO Rule 15(a) analysis justice so requires? prejudice, bad faith.
(b) YES First do 15(a) analysis, then Rule 15(c) relation back
III. PRE-TRIAL DISCOVERY
A. Generally
1. Discovery usually w/o judge, but can make motion to compel judge to get involved.
2. Unfair party with more money can wear down party w/ less resources
3. Info need not be admissible evidence, discovery is permitted if it serves as a lead to admissible evidence or
leads to any witness who might have discoverable info
4. Rule 26 general provisions on Discovery
- Discovery permitted once answer filed & know its going to be litigated (some overlap w/ pldg stage)
and after Rule 26(f) discovery conference
- allows for discovery for most information that is relevant + not privileged
B. Sequence of Discovery
1. FRCP 26(f): discovery conference to discuss claims/defenses and possibility of settlement
-Discovery plan: covers the subjects, timing and form, and any agreements the parties make that limit/relaxes
limits prescribed by the rules
-Prerequisite to discovery parties may not engage in discovery until after the discovery conference
2. FRCP 26(a): Initial mandatory disclosures
-must disclose contact info of all witnesses with discoverable info that party PLANS to use at trial (must only

15

provide other witnesses upon request)

-copy or description of location of all documents and tangible things in partys possession that it plans to use
-party must supplement this list later on if they learn of other witnesses/documents/etc.
3. Party-initiated discovery (can take months to years)
4. FRCP 26(a)(3): Pre-trial disclosures
-parties make disclosures in re expert witnesses and other evidence to be offered at trial
C. Scope and Relevance
1. Rule 26(b)(1) allows for discovery of info that is relevant to claim/defense and not privileged few limits
-Crts may broaden scope of discovery to any matter relevant to the subject matter if good cause is shown
2. Relevant to claim/ defense
a. relevance is a low threshold to meet
b. relevance: info is relevant as long as it may help a party prepare his case (doesnt have to use info at trial)
c. amendment to FRCP 26(b)(1) has to be relevant to a claim/defense (not just any subject matter)
-relevant to any party, not just party requesting info
-can obtain info not related to claim/defense by court order if there is good cause that it is relevant to
subject matter
d. party must disclose info even though that info could not be used as evidence at trial (relevant info. need
not be admissibleif discovery appears reasonably calculated to lead to the discovery of admissible
evidence)
e. generally P barred from obtaining Ds financial assets to see if D is judgment proof b/c it is irrelevant to
whether P is entitled to judgment BUT exceptions apply for punitive damages (depends on Ds net worth)
and FRCP 26(a)(1) liability insurance (party must disclose any pertinent insurance coverage w/o being
pressed to do so)
f. Davis v Precoat Metals (2002) p. 459
-FACTS: P sue employer for racial/national origin discrimination at work request discovery of all
complaints alleging racial/ national origin discrimination filed by other employees at same plant
-HOLDING: Discovery that is narrowly tailored to the allegations of a complaint is discoverable, even if
it involves the personnel files of employees other than the parties to the suit.
-requests were narrowly tailored to the specific claims of the case.
-Ps limited their requests to complaints filed by employees who worked at the same plant
-Moreover, Ps did not seek discovery related to all alleged unequal employment practices by D,
but rather limited their discovery requests to complaints alleging race and national origin
discrimination
-info sought was relevant b/c it could be used to demonstrate that Ds alleged basis for taking action
was a mere pretext
-NOTE: Under FRCP 26(b)(2) a court can limit discovery if it determines, that the discovery is
unreasonably cumulative or duplicative, obtainable from another source that is more convenient,
less burdensome, or less expensive, or the burden or expense of the proposed discovery
outweighs its likely benefit.
g. Steffan v. Cheney (1990) p. 461 (*also privilege case)
-FACTS: P resigned from the Navy board recommended P be discharge based on statements declaring
himself gay P claims he was constructively discharged and challenged the constitutionality
of the regulation P refused to answer questions regarding whether he had engaged in
homosexual conduct (claiming his privilege against self-incrimination) + objected that the
questions were not relevant to the legality of this case TC sanctioned P for failure to comply
-HOLDING: court found info irrelevant, given that the Navys stated reason for discharge was the
statement, not any alleged acts the fact that the acts themselves could lead to discharge
was irrelevant b/c the Navy had not relied on these facts in making its decision
3. Privilege (limits scope of discovery)
a. privilege protects info being disclosed by a particular source but facts can be discovered by other means
-qualified immunity: given to docs prepared in anticipation of litigation by partys representative
-info seeker can still obtain info if: (1) proves substantial need and (20 cant get info w/o undue
hardship

16

-absolute immunity: court must protect against disclosures of mental impressions of partys attorney
-witnesses that give statements are always entitled to a copy of their own statement
b. recognized privileges: self-incrimination, attorney-client, doctor-patient, priest-penitent, spousal
c. application:
-our court system seeks to shield parties from excessive discovery generally embarrassing or
confidential info is permitted when info is relevant but party cannot use discovery to harass opposing
party
-FRCP 26(c): allows party to seek a protective order and gives judges the broad power to prevent
abusive discovery
-FRCP 26(b)(5)(A): to invoke privilege party must make express claim and provide sufficient description
d. waiver any privilege may be waived either directly or indirectly
-a waiver in re a specific item, constitutes a waiver of all items under that subject matter purpose of
rule
is to prevent parties from selectively waiving the privilege
-FRCP 26(b)(5)(b) Claw Back tries to protect party from inadvertent waivers of privilege
d. Steffan v. Cheney (1990) p. 461 (*also relevance case)
-P discharged from Navy b/c he was openly gay; P refuse to answer deposition Q - if he had engaged in
homosexual conduct during or after discharge.
-Anti-Sodomy laws still existed, so privilege against self-incrimination (5 th A.)
e. Stalnaker v. Kmart (1996) p. 503
-FACTS: P alleged that an employee in Ds receiving department, created a hostile working environment
and sexually harassed her by inappropriate touching. P served notice of depositions for
several non-party witnesses regarding their sexually related activities P believed that other
witnesses could provide relevant information regarding sexual harassment at the Ds store D
sought a protective order protecting those non-party witnesses from discovery into their
sexually related activities, alleging that such evidence was irrelevant and would violate the
privacy of those witnesses
-HOLDING: The party seeking a protective order has the burden to show good cause for it. To establish
good cause, the parties must submit a particular and specific demonstration of fact as
distinguished from stereotyped and conclusory statements.
-court prevents discovery related to voluntary and sexual activities by the non-party witnesses and only
permitted discovery regarding incidents of sexual harassment by Kmart employee involving the nonparty witnesses.
-FRCP Rule 26(b) permits a broad scope of discovery. The information sought need not be admissible at
trial if it appears reasonably calculated to lead to the discovery of admissible evidence.
-Despite the broad scope of discovery, the court may enter protective orders totally prohibiting certain
discovery or limiting the scope of discovery to certain matters under FRCP Rule 26(c)(1) and (4).
-whether to enter a protective order is within the sound discretion of the court.
f. Upjohn Co. v. U.S. (handout)
1. Attorney-client privilege protects corporate entities as well as individuals
2. Scope of privilege includes lower echelon employees as well as top management executives
D. Discovery Devices
1. Required Initial Disclosures
a. Rule 26(a) Parties must disclose w/o discovery request,
(1) within 14 days after 26(f) conference
(2) must disclose: name and contact info of any person likely to have discoverable info, subject of info
known by those people, copy or description of all docs, computation of damages, and liability
insurance policy (all evidence that party may use to support their claim/defense)
(3) party must disclose above info unless these items will only be used for impeachment
(4) Pre-trail Disclosures (at least 30 days before trial)
-identity of any person who may testify as an expert (if they are retained to actually testify, party
also needs to include report describing the experts qualifications, their opinions, and list of prior
cases in last 4 years that expert testified) expert info must be disclosed at least 90 days before

17

-witnesses (name and contact info)

-tangible evidence to be used at trial
2. Interrogatories written Qs designed to uncover additional leads (good starting point)
a. Rule 33 served on to parties, nonparty witnesses need not answer (may be deposed though)
(1) (a) cannot exceed 25 interrogatories w/o court order or stipulation by opponent (note if a given Q
has subparts, each subpart counts as a separate question)
(2) (b) answered separately and fully in writing under oath, w/in 30 days after receiving
answering party can object to Q w/ specific statement why objectionable only recourse for
interrogating party is to pursue a court order
(3) (c) interrogatories w/in 26(b)(1) scope relevant/ not privileged
(4) (d) if finding info would take the same amount of effort on both sides, party can invite other party to
come and find the info for themselves (usually in the context of corporations)
(5) NOTE: unlike depos which occurred on the spot, answerer has duty to reasonably investigate answers
b. Different types of interrogatories
(1) Identification/ Source (name all witnesses that were present when P [insert allegation])
(2) Substantive (identify each witness you mean to introduce at trial)
(3) Contention (auto accident - do you contend that P was inside or outside the crosswalk) *only facts
c. Notes: easy to evade Qs; cheaper than depos; effective in getting leads; typically responses not useful
evidence (with the exception of impeachment evidence)
3. Depositions expensive, follow up Qs
a. Rule 30 deposition upon oral examination (sworn statement under oath) + w/ court officer
(1) (a) cant exceed 10 depos w/o court order (must subpoena non-parties Rule 45)
court order needed when deponent is in prison, or has already been deposed
(2) (b)(2) subpoena duces tecum: forces non-party deponent to produce documents upon request
(3) (b)(6) Business required to designate proper individual to be deposed
(4) (d)(2) not exceed 1 day (7 hrs). No person can be deposed twice.
(5) (d)(1) attorney for deponent may make any reasonable objection but objection is simply recorded on
transcript and deponent still answers (only objection to assert privilege can stop deponent
from answering) (***if no objection on record objection waived)
(6) (d)(3) party may seek protective order when depo conducted in bad faith or in a way that
unreasonably annoys, embarrasses, or oppresses the deponent
(7) depos and requests for inspection are the only devices that can be used for non-parties
(8) while depos usually count as hearsay evidence, useful to be admitted for impeachment purposes
4. Requests for Production of Documents huge amounts of discovery and money
a. Rule 34 broad production of documents and things/ entry upon land for inspection
(1) Rule 34(a) within scope of 26(b)(1) relevant to the claim/ defense of any party
(a) no maximum number of requests
(b) even if party is not in actual possession, he must make it available for inspection if it is in the
possession of someone under his control
(2) Rule 34(b) Request after 26(f) discovery conference, respond w/in 30 days.
b. Non-Parties subpoena for production of documents under Rule 45
c. NOTE: important distinction between concluding that a document is not included in request and concluding
that request is objectionable if objection, must state objection or risk more serious sanctioning for
being too clever
5. Medical Examinations
a. Rule 35(a) Court orders mental/ physical exam if: (1) good cause; (2) mental/ physical condition is in
controversy
b. unlike other discovery devices, party must show good cause AND obtain court order (requires higher level
of relevance, relevance on steroids)
-to prove good cause must show that info cannot be obtained by any other means

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c. examiners report granted to party requesting examination (party who was examined may obtain copy upon
request BUT this waives doctor-patient privilege and allows party requesting examination access to all
other examinations involving the same condition)
6. Requests for Admission
a. Rule 36 written request for admission of truth of any matter w/in scope of Rule 26(b)(1)
(1) Rule 36(a) deemed admitted unless objection is filed within 30 days
(a) objection must detail why answering party cannot truthfully admit/deny
(b) party cannot object solely on presents genuine issue for trial argument
(2) Rule 36(b) not evidence, but deemed admitted as fact ONLY for purpose of pending litigation
b. Rule 37(c)(2) SANCTIONS for not admitting when true (justification loophole 37(c)(2)(C) and (D))
c. usable only against parties; in writing; cheap; limited usefulness
d. NOTE: unlike other discovery devices, which result in evidence that can be rebutted by other evidence,
admissions made in response to a request are deemed to be admitted facts (only for current trial)
E. Trial Preparation: Materials Rule 26(b)(3)
1. Work Product Doctrine (limits on discovery):
(a) Documents and tangible things; that are
(b) Prepared in anticipation of litigation
-does not apply to docs prepared during ordinary course of business
(c) By the party/representatives (accountant, consultant, attorney, surety, indemnitor, insurer, agent)
(d) Material must be relevant and not privileged
(e) party seeking docs must demonstrate substantial need and that info cannot be found elsewhere
-exceptions: substantial costs, alternative source is hostile to information seeker
-26(b)(3)(C) a person who gives a statement may obtain copy of her statement w/o showing need
(f) NOTE: info that is not listed in 26(b)(3) cannot be discovered even on a showing of need (nontangible)
2. After criteria, then determine:
(a) Opinion work product (attys mentail impressions, thought process) absolutely protected
(b) Ordinary work product party must show substantial need/ undue hardship (no longer available)
3. Hickman v. Taylor (1947) p. 498 (case decided prior work product doctrine)
-FACTS: following an accident involving one of their tug boats, two tug owners (Ds) fearing litigation, hired
an attorney who interviewed several of the surviving crew members. P filed 39 interrogatories (the
38th requested that D disclose whether any statements of the surviving crew members were taken
following the accident, and if so, to include copies)D admitted that statements were taken, but
that they were privileged matter obtained in preparation for litigation TC held not privileged
AC reversed
-HOLDING: while the protective cloak of attorney-client privilege does not extend to information that an
attorney secures from a witness in anticipation of litigation, an attempt, w/o necessity or
justification, to secure written statements, private memoranda and personal recollections
prepared or formed by an adverse partys counsel, falls outside the arena of discovery
-discovery has ultimate and necessary boundarieslimitations come into existence when the
inquiry encroaches upon the recognized domains of privilege.
-Policy 1: necessity for lawyer to develop his theories w/o fear of having to disclose his strategies
lawyer is protected against disclosure in discovery of info generated by the litigation process
itself but not against disclosure of underlying historical facts
-Policy 2: prevents one side from piggybacking work of another side (not mentioned in case)
-Policy 3: minimize number of situations where the attorney will be called as a witness (not case)
F. Trial Preparation: Experts (didnt go into depth in class)
1. Rule 26(b)(4) - May depose any identified experts whose opinions may be presented at trial (not shield by WP)
G. Sanctions, Ensuring Compliance
1. Rule 26(g)(1) atty sign disclosures/ requests to certify info complete & correct
a. 26(g)(2) also certify that it is: (similar to Rule 11 principle in pldg stage)
(A) Made in good faith
(B) Not improper or for harassment purposes
(C) Not burdensome or expensive

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b. 26(g)(3) Sanctions to atty who signed, and/or represented party

2. Silvestri v. General Motors Corp. (2001) p. 464 Spoliation of Evidence
-FACTS: Silvestri filed action against General Motors, alleging enhanced injuries due to the airbag not
deploying when he hit a utility pole destroyed car TC dismissed for the spoliation of evidence
-HOLDING: court has discretion to dismiss an action for the spoliation of a key piece of evidence,
particularly when such conduct of the spoliator may have been either deliberate or negligent
and becomes highly prejudiced to the defendant
-Spoliation: refers to the destruction or material alteration of evidence or the failure to preserve property
for anothers use as evidence in pending or reasonably foreseeable litigation.
-Here, the prejudice suffered by General Motors was highly prejudicial b/c it denied D access to the
only evidence from which it could develop its defenses adequately.
-D could not develop a "crush" model to determine if the airbag properly failed to deploy
-b/c of the spoliation, D could not resolve the critical question of how plaintiff injured his head
-NOTE: here, the potential Ds identity was known early on and there would have been little burden in
notifying potential D and giving it a chance to examine evidence before it was destroyed (awareness
of potential litigation)
3. Discovery Abuses
1. Too little discovery one party resists appropriate requests for discovery
2. Too much discovery one party seeks more discovery than case justifies
3. Mismatched discovery parties have significantly unequal litigation resources
-party with lack of resources can use public sources, cheaper discovery methods (interrogatories),
approach firms that advance litigation costs on assessment of cases merit, free ride on discovery efforts
of other parties
4. Tools To Combat Discovery Abuses
1. Limits on discovery
2. Sanctions for bad behavior
3. Judicial Supervision
4. Remedies to e-discovery problems:
a. FRCP 37(f): court cannot sanction party if stored info is lost as a result of routine, good-faith operation
b. FRCP 26(b)(2)(B): excuses party from providing info if it is not reasonably accessible b/c of undue
burden or cost
c. FRCP 26(b)(5)(B)/FRCP 26(f)(6) added to protect inadvertent waiver of attorney client privilege
5. Zubulake v. UBS Warburg LLP (2003) p. 512
-FACTS: P brought gender discrimination and wrongful termination suits against D and she sought
access to emails that were stored and archived by D parties were previously ordered to share the
costs of restoring backup tapes that contained relevant e-mails. During the restoration, the parties
discovered that certain tapes were missing
-HOLDING: A court will weigh the cost of accessing the electronic data using a comprehensive set of factors,
and will determine whether the data should be available for discovery, and which party to place
the cost of the discovery
-spoliationparty seeking adverse inference must prove:
1. Party with evidence had duty to preserve it
2. Records were destroyed with a culpable state of mind
3. Destroyed evidence was relevant to claim/defense
-the duty to preserve the missing tapes arose when the employer anticipated litigation (four months before
the employee filed her Equal Employment Opportunity Commission charge)
-Because the employer was negligent, and possibly reckless, the employee satisfied her burden with
respect to the first two prongs of the spoliation test.
-However, the employee failed to show that the lost tapes contained relevant information. Under the
circumstances, it was inappropriate to give an adverse inference instruction to the jury
IV. PRE-TRIAL ALTERNATIVES TO ADJUDICATION

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A. Summary Judgment
1. Rule 56 summary judgment.
a. Rule 56(a) can seek SJ on all claims or partial SJ on one or more specific claims
court shall grant SJ if there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law
b. Rule 56(b) can file SJ anytime up to 30 days after discovery ends
c. Rule 56(c) materials accompanying motion: transcript of depositions, answers to interrogatories,
admissions, and affidavits; in addition, memoranda of why SJ is appropriate
d. Rule 56(d) if SJ sought early in trial, court may delay SJ hearing to allow adequate time to conduct
discovery
e. Rule 56(e) NMP must challenge SJ w/ specific facts showing genuine issue for trial (cant rest upon
mere allegations or denials) (differ from 12(b)(6)).
2. Basic Principles
a. court does not weigh evidence (competing evidence = deny SJ)
b. credibility (court does not determine credibility of evidence)
c. favor nonmoving party
d. deny inferences (court will typically leave inferences for the fact finder; however, if inference is too
improbable, court can grant SJ against party who needs to rely on that inference
e. must prove every element of the claim if lack any element, SJ granted for opposing party
3. Burden
a. if neither party offers evidence, the party with the burden of production loses
b. claimants typically bear burden of production on every element of its claim
c. parties defending claim typically have burden on all affirmative defenses
d. if one party offers strong evidence, burden switches to other party to disproveif other party produces no
evidence the court, not the jury, will decide
4. SJ Step-by-Step:
(1) Has Moving Party done enough in its supporting papers?
(2) If so, has NMP done enough to entitle a reasonable jury to find for him?
a. Has MP done enough to grant SJ?
(1)Adickes v. Kress & Co. (1970) handout
-FACTS: P sued D alleging that there was a conspiracy between the D and the police to arrest the P
when she entered Ds store D moved for SJ on the grounds that P could not produce any
evidence in support of a conspiracy TC granted SJAC affirmed SC held D had to
prove state action by showing that Ds employee and a policeman reached understanding
-HOLDING: In re conspiracy actions, SJ may not be granted unless the nonmoving party can show
that there is no genuine issue of fact.
-SJ was improper here b/c the moving party (D) failed to carry its burden of showing the absence
of any genuine issue of factD failed to negate the possibility that there was a policeman in
restaurant while P was awaiting service. Further, D failed to submit affidavits of the waitresses.
-FRCP 56 was not intended to modify the burden of the moving party to initially show the
absence of a genuine issue of material fact. Furthermore, the rule requires D do more than
simply rely on contrary allegations in its complaint. Thus, in order to concede this fact, P would
have to file an affidavit explaining why it was impractical to file an affidavit stating that
someone saw a policeman in the store
-NOTE: this decision was subsequently overruled by Celotex
(2) A. Catrett v. Johns-Mansville Corp. (1985) handout
-FACTS: P wife filed wrongful death action alleging that her husband died from his exposure to
products containing asbestos manufactured by D (causation problem) D offered no
evidence of any sort whatever in support it SJ motion TC grant SJ to D
-HOLDING: the party moving for SJ carries the burden of proving the absence of a material issue of
fact, even on issues where the other party would have the burden of proof at trial
-Ds motion was based solely on P's failure to produce credible evidence to support her claim
-DISSENT: SJ and directed verdict are essentially similar P is just going to lose at trial
B. Celotex Corp v. Catrett

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-HOLDING: reverse AC it is not a requirement that moving party has to support its SJ motion
with affidavits
- under AC ruling, D could have never been granted SJ unless he could have produced a
detailed chronology of the decedent's life and showed that the decedent never came into contact
with its products
-P was in the best position to produce such information burden should have rested on her
(3) If P = MP (has burden of production at trial) question 1 becomes
(a) Would rsnble jury have to find for MP in absence of any opposing evidence?
(b) Has P established all elements of his claim?
(4) If D = MP (does not have burden of production at trial) question 1 becomes
(a) Celotex when affirmative evid not available, show P (NMP) cant prove element of their case
b. If so, has NMP done enough to avoid SJ?
(1) Arnstein v. Porter (1946) Handout
-FACTS: P sued D for copyright infringement over numerous songs. P alleged that D had lived with
P, and had the opportunity to take this material from the P. D denied ever hearing or seeing
any of Ps compositions TC granted Ds motion for SJ
-HOLDING: SJ is improper when credibility of the parties is an issue
-there are similarities in Ps and Ds compositions, but they do not compel the conclusion that D
copied P however, the similarities are enough to allow the case to go to the jury, and the jury
may determine whether the similarities resulted from coincidence.
-SJ would have been proper if D did not have access to Ps compositions. This also presents an
issue of fact and even though part of Plaintiffs testimony does seem extreme, the Plaintiffs
credibility should be determined by the jury
(2) Bias v. Advantage International, Inc. (1990) p. 591
-FACTS: college basketball player entered into a representation agreement with the D shortly
thereafter, player died of a cocaine overdose P, representative of the estate of player, sued
D for injuries allegedly arising out its representation TC awarded SJ to D
-HOLDING: affirmed in order to withstand a SJ motion once the moving party has made a prima
facie showing to support its claims, the nonmoving party must come forward with
specific facts showing there is a genuine issue for trial
-moving party always bears the initial responsibility of informing the court of the basis for its
motion and identifying those portions of the record, which it believes demonstrate the absence of
a genuine issue of material fact
-once the moving party has carried its burden, the responsibility then shifts to the nonmoving
party to show that there is, in fact, a genuine issue of material fact nonmoving party must
bring forth specific facts showing there is a genuine issue for trial.
-in evaluating the nonmovants proffer, court must draw all inferences in favor of the nonmovant
-court held that the testimony of players parents and coach that he was not a cocaine user did not
constitute sufficient specific facts b/c they did not attend the parties at which he used cocaine
(3) Summary Judgment vs. FRCP 12
-FRCP12 allows a court to resolve case based solely on the allegations in the pleadings (court accepts
factual allegations in the pleading as true). In contrast, SJ forces court to look at the evidence
-NOTE: FRCP 50 judgment as a matter of law occurs during the trial while SJ is a pretrial motion
V. TRIAL
A. Trier of Fact Judge or Jury
1. 7th Amendment right to jury trial extends to P and D
a. Pre-1791 jury trial for common law (not equity)
b. Today law and equity merged (so look at remedy to tell difference)
c. Juries decide issues of fact; judges decide issues of law
d. Lots of party autonomy can stipulate verdict unanimous/ not; min 6 jurors, may agree to less.

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2. Ways courts take away pwr from juries - New trial, jnov, directed verdict, sum. jug, even 12(b)(6)
B. Presumptions and Burdens of Proof and Persuasion
1. Reid v. San Pedro, LA & Salt Lake Railroad (1911) p.603
-FACTS: landowner's complaint alleged that the railroad company was negligent in maintaining a fence, and
as a result, certain cattle were killedevidence supports two possibilities: one of which would
impose liability on D, while the second would not.
-HOLDING: when things could go either way, court must enter verdict for party w/out burden of proof
C. Judgment as a Matter of Law (Directed Verdict and J.N.O.V.)
1. Generally
a. jury plays role only when the facts are in dispute; when it is clear from the evidence that one side should
prevail judgment as a matter of law (takes case away from jury)
b. timing party can move for JMOL either before the case is submitted to jury or after a verdict is returned
-in federal courts (and most states) party may not seek J.N.O.V. unless she filed for a directed verdict
c. standard no rational jury could find for the party opposing the motion
-this affords judge more leeway than SJ motion b/c the judge has seen and heard live witnesses and can
weigh the evidence to gauge credibility
-court should leave most credibility determinations to the jury
1. Rule 50 JMOL and renewed JMOL
a. Rule 50(a) if no rational jury could find for party on issue court may grant motion for JMOL
b. Rule 50(b) if court does not grant JMOL, case goes to jury
(1) Party may file motion to renew JMOL w/in 28 days after entry of judgment (+ new trial)
(2) 50(b)(1) if verdict was returned, court can (A) allow judgment to stand; (B) order new
trial; or (C) direct entry of JMOL
(3) 50(b)(2)(3) if verdict not returned, court can (A) order new trial; or (B) direct entry of JMOL
c. Rule 50(c) if granting renewed JMOL, court can conditionally grant new trial
(1) If judgment reversed on appeal, new trial shall proceed unless AC otherwise orders
(2) If motion for new trial is conditionally denied party may appeal
d. To make JNOV motion, you must have motioned for directed verdict at close of evidence
2. Directed Verdict pre-verdict JMOL
a. directed verdict cannot be granted until the opposing party has been fully heard on that issue
-D often files motion for JMOL at close of Ps case
-both parties may file motion at the close of all evidence
b. Pennsylvania RR v. Chamberlain (1933) CB 594
-FACTS: P, on behalf of a deceased railroad employee, brought suit against Penn. Railroad alleging that
their negligence had caused Mr. Chamberlains death TC granted Penn. RR directed verdict
-HOLDING: D is entitled to a directed verdict in a case where the proven facts give equal support to each
of two inconsistent inferences, where the P has the burden of proof
-when there is conflict of testimony upon a matter of fact, the question must be left to the jury to
determine
-here there really is no conflict in the testimony as to the facts, as the witnesses flatly testified that
there was no collision between the cars.
-where proven facts give equal support to each of two inconsistent inferences, in which event neither,
judgment as a matter of law must go against the party with the burden of proof
-NOTE: Essentially when evidence tends to equally support two divergent possibilities, neither is said to
be established by legitimate proofThus, a verdict in favor of the party with the burden of proof
is clearly inappropriate.
(1) Witnesses
(a) For D = 3 eye witnesses (including people on string) said there was no collision
(b) For P = 1 witness who wasnt paying attention but heard loud crash; inferred collision
1) Also evidence that 9-car string was moving faster than Hs string and caught up
(2) Directed verdict if other partys case rests on mere speculation and conjecture. Witness Credibility
left up to jury. Judge views evidence in light most favorable to NMP.

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(3) If reasonable men could infer different things from undisputed facts, then send case to jury
(a) Old if there was scintilla of evidence for NMP, the MP cannot have direct verdict
(b) New courts take more pragmatic approach and weigh evidence
c. Railroad Co. v. Stout (1873) handout
-FACTS: child was injured on the railroad's turntable railroad defended suit by arguing that it was not
negligent and that the injury to the child was accidental or brought upon himself TC returned
a verdict for the child
-HOLDING: AC affirmedalthough the facts were undisputed, it was for the jury to determine whether
proper care was given or whether they established negligence.
-although the turntable was located away from inhabited dwellings, it was proven that several boys
were playing on the turntable when the child was injured and that they had done so on other
occasions within the observation and to the knowledge of the railroad's employees.
-where there are factual disputes then go to jury. Mix Q of law and fact jury determines what
community standards are of reasonable care.
3. J.N.O.V. post-verdict JMOL
b. purpose if judge granted directed verdict motion and AC reversed would need completely new trial
c. timing must be filed within 28 days after judgment and period cannot be extended (FRCP 50(b))
d. in practice it is more difficult for judge to enter J.N.O.V. over a directed verdict b/c judge is faced with a
jury verdict that decides precisely what a party is claiming no reasonable jury could decide
D. Verdicts and New Trial Motions (must be granted within 28 days after judgment and cannot be extended)
1. Rule 59(a) grounds for granting NEW TRIAL; new trials may be granted when:
a. Flawed Procedure
-party must (1) show that error prejudiced him by possibly changing the outcome (2) raise objection
during trial
b. Flawed Verdicts verdict against the great weight of the evidence
-Standard for new trial LOWER than J.N.O.V. standard (merely begins contest again)
-FRCP 50(b) allows party to ask for JNOV and New Trial in a single motion (if JNOV fails, party will
be satisfied with New Trial in the alternative)
c. Rule 59(b) motion must be made w/in 10 days of judgment
d. Does not require prior motions; can be raised sua sponte (Rule 59(d))
2. New Trial standard miscarriage of justice (not just that judge would have voted other way)
3. Lind v. Schenley Industries (1960) p. 658
-FACTS: P alleged that D had promised him an increase in pay but then breached that promise. The alleged
promises were oral. P and his secretary testified to such promises; Ds agents denied making
them jury found a k and awarded damages D moved for judgment notwithstanding the verdict
and a new trial, which the trial judge granted; P appealed
-HOLDING: reversed TCs grant for new trial b/c judge improperly substituted his interpretation for that of
the jury when the evidence was a close call
-when the basis for ordering a new trial is that the verdict was against the weight of the evidence, it is
frequently stated that a motion for a new trial on this ground is nonreveiewable b/c it is within the
discretion of the TC. However, this discretion must still be exercised in accordance with ascertainable
legal standards and if AC is shown circumstances which clearly indicate an abuse of discretion, reversal
is possible
VI. APPEAL (losing party must file w/in 30 days)
A. General
1. U.S. litigation system operates on heavy presumption that TC is correct
2. AC have jurisdiction only to review specific TC judgments claimed to be in error may reverse only if the
error appears in the record, if it is an error the appealing party pointed out, and if it is harmful
3. A party cannot appeal an issue unless that issue was resolved adversely to the partys interest and was likely to
have affected the result (NOTE: the winning party can still appeal if the victory was not as complete as she
would have liked)
4. A party cannot raise a claim/defense for the first time on appeal (exception: subject matter jurisdiction issue)

24

5. Parties must raise objections to procedural mistakes otherwise forfeits ability to appeal on these mistakes
6. Harmless error an error that does not substantially harm the parties cannot be the basis of a reversal
B. Final Judgment Rule (most significant limit on appeals)
1. Generally, a party may appeal only final decisions of the TC (after ALL issues have been litigated)
2. Final decision = one which ends the litigation on the merits and leaves nothing for the court to do but execute
3. USC 28 1291 US courts of appealsshall have jurisdiction of appeals from all final decisions of the
district courts of the United States (1) defines moment at which an appeal is proper and (2) grants
jurisdiction for AC to hear appeal
a. grant/denial of SJ/motion to dismiss are NOT a final judgment
b. generally interlocutory rulings not allowed (cant appeal after each time TC makes a decisionlimits)
-interlocutory ruling: pretrial rulings that do not completely resolve the case
c. if appealing party fails to meet 1291, the AC lacks subject matter jurisdiction to review appeal
d. party must file appeal within 30 days of the final judgment or motion to extend period
3. Exceptions
a. 28 USC 1292(b) permits appeal when both TC and AC agree immediate (interlocutory) appeal is
justified: (1) decision made is sufficiently important in deciding the case AND
(2) AC agree to take it
-NOTE: order must involve controlling question of law; question of fact never justified under 1292
b. Rule 54(b) when there are multiple claims/parties, court may direct entry of final judgment for some
claims earlier than others so they can be appealable if: (1) judgment made on single claim
and (2) there no just reason for delay
c. Collateral Order Doctrine (court created exception)
-Permits immediate appeal on some ruling that could not be given effective appellate review if it had to
wait; has three requirements:
(1) order must resolve an important issue that is separate from the merits of the case; and
(2) order must be conclusively settled; and
(3) order must be effectively unreviewable on appeal from a final judgment
d. Mandamus/prohibitions original proceedings that are brought against a public official and b/c judge is a
public official, both writs are available as a way of challenging a decision
only granted under exceptional circumstances of abuse of judicial power
-NOTE: mandamus orders judge to do something; prohibition prohibits judge from doing something
4. Liberty Mutual Insurance Co. v. Wetzel
-FACTS: Respondents claimed that the Petitioners employee insurance benefits and maternity leave
regulations discriminated against women in violation of the Act Respondents moved for partial
SJ TC ruled in favor of the Respondents Petitioner appealed
-HOLDING: grant of SJ on the issue of liability, but not relief, was not a final decision
-Under 28 U.S.C. 1291, where judgments are interlocutory and assessment of damages or awarding of
other relief remain to be resolved, these judgments are not final, therefore, unappealable
5. Pullman-Standard v. Swift (1982) handout
-FACTS: TC found no discriminatory intent; AC reversed petitioners argue that AC failed to comply with
FRCP 52(a) that the findings of fact of a TC may not be set aside unless clearly erroneous
-HOLDING: AC erred in the course of its review
-AC held that IAM was acting out of discriminatory intent ( issue specifically not reached by the TC)
-Rule 52(a) broadly requires that findings of fact not be set aside unless clearly erroneous
-FRCP 52(a) does not apply to conclusions of law AC, therefore, was right in saying that if a TC's
findings rest on an erroneous view of the law, they may be set aside on that basis.
-But here the TC was not faulted for misunderstanding the law; it was reversed for question of fact
-proper remedy if found to be clearly erroneous is remandhere, AC did not remand; instead, it made its
own finding of fact
C. Scope of Review
Grant JNOV
Deny JNOV

Grant New Trial

Appealable
NOT Appealable

Deny New Trial

Appealable
Appealable

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D. Standards for Review

1. Clearly Erroneous Issues of Fact (Jury Verdicts) (Rule 52(a))
a AC gives deference to TC may only reverse if it is convinced the TC is incorrect
b. if there is significant evidence on both sides of argument, TCs decision cannot be clearly erroneous
2. De Novo Issues of Law (look at case like it started over)
a. AC gives no deference to TCAC determines for itself what the law is
b. Applies to JNOV, SJ, sometimes motion for a new trial
3. Issues of Trial Judge Discretion certain issues are deemed particularly within the province of a trial judge
a. AC will reverse only if it concludes that there is no possible reasonable basis for decision
b. ex. decision whether to grant new trial
3. Mixed Question of Fact and Law treated like Issue of Fact apply Clearly Erroneous standard
-NOTE: however, if TCs ruling on a mixed question was based on an error of law apply De Novo standard
VII. JOINDER
(1) Permissive Joinder of Parties (FRCP 20)
a. Generally
-allows multiple parties to join as Ps in the action and allows the Ps to sue more than one D
-test: Multiple Ps can join if: (1) they assert any right to relief jointly, severally, or in the
alternative w/ respect to or arising out of the same transaction, occurrence, or series of transactions or
occurrences AND (2) any question of law or fact common to all Ps will arise in the action
b. Notes:
-joinder of multiple defendants is at the option of the P and follows the same two requirements above
-jointly: Ps share a right
-severally: each P has an individual right to recover (ex. passenger and driver sue for their respective inj
-series of transactions or occurrences Unlike FRCP 13, FRCP20 allows joinder either if the claims arise
from the same T/O OR a series of T/O
-applicationeach D must meet SMJ and PJ (ex. claim against each D must meet amount in controversy if based
on diversity jurisdiction; that is, cant have 80k against D1 and only 20k against D2)
c. Mosley v. General Motors Corp. (1974) p. 806
-FACTS: Ps joined in bringing an action alleging that their rights were violated by D, on account of their race
TC ordered that the counts against D be severed into separate COAs and each P was directed to bring a
separate action based upon his individual complaint AC granted application for interlocutory appeal
-HOLDING: joinder of parties is appropriate where the claims (1) arise out of the same transaction or
occurrence and (2) some question of law/fact is common to all the parties arises in the action
-FRCP 20(a) purpose is to promote trial convenience and expedite the final determination of disputes
-P has established same transaction or occurrenceharmed by the same general policy
-2nd requirement also met: discriminatory character of the Ds conduct is basic to each Ps recovery; the fact
that each P suffered different effects from the discrimination is immaterial
(2) Impleader 3rd Party Claims (Ds passing on liability via joinder)
a. Generally
-FRCP 14: in some situations, parties held liable have a right to seek contribution from other Ds by impleading
them into the suit (arises when P cannot sue all the proper Ds)
-test: D may to implead a 3rd party D who is or may be (1) liable to it for all or part of another partys existing
claim against the 3rd party P (original D) AND (2) original D is trying to pass liability to 3rd party
-FRCP 14(b) allows a P to use interpleader if a claimcounter claim or cross-claimis brought against it
-court permission is required to implead if after 14 days of serving original answer to complaint
-claim against 3rd party D does not need to be matured at the time of interpleader (allows impleader if the 3 rd
party D is or may be liable)
-NOTE: FRCP 14 doesnt apply to current parties (use cross-claim or counterclaim for codefendants and Ps)
b. Relaxed SMJ/PJ/Venue requirements:
-100-mile bulge: service of 3rd party is allowed up to 100 miles of courthouse (even if this extends out of state)
-3rd party claim generally falls under supp. jurisdiction thus 3rd party Ds citizenship and amount in controversy

26

are not considered

-if venue is proper between original parties, it is automatically proper for 3 rd party D
-NOTE: claim made by original P against 3rd party D must independently satisfy jurisdictional requirements
c. Price v. CTB, Inc. (2001) p. 812
-FACTS: Ds were the original Ds in an action by P concerning the quality of its workmanship over various
chicken houses Ds moved to file a 3rd Party Complaint against ITW. In the 3 rd Party Complaint, D
alleged that ITW defectively designed the nails used in the construction of the chicken houses; ITW
argued that it was improperly impleaded under FRCP 14
-HOLDING: D may implead a 3rd party under FRCP 14 so long as the 3rd partys liability is derivative of the
original claim AND the original D is trying to pass all or part of the liability onto the 3 rd party
-per FRCP14(a), D may assert a claim against anyone not a party to the original action if that 3 rd partys
liability is in some way dependent upon the outcome of the original action
-limitation: even if it arises out of the same general facts as the main claim, 3 rd party claim will not be
permitted when it is based upon a separate independent claim (must be derivative of the original
claim) + D must try to pass all or part of the liability on to 3 rd party
-D argues ITW can be found liable for the warranty of its products if D is found liable for faulty construction
-once party is impleaded, impleaded party must file counterclaims etc. as if it were part of the original suit
(3) Compulsory joinder
a. Generally (FRCP 19)
-if court determines that a party should be joined but the person cannot be joined (for lack of SMJ/PJ),
the court then decides whether to dismiss (persons required to be joined if feasible)
-litigation often affects people who are not formal parties if the effects were serious enough (that,
unfair/uneconomical not to join party) and the affected persons could be joined they should be
-Primarily a Defense compulsory joinder is primarily a defense comes into play when a party moves to
dismiss the action b/c of the absence of one or more interested people
-party usually cannot be joined b/c of lack of personal jurisdiction or b/c it would destroy diversity
b. FRCP Step-by-Step:
1. FRCP 19(a) establishes the criteria for determining whether a person should be joined:
i. absence precludes relief a person should be joined if in that persons absence , the court cannot accord
complete relief among existing parties
ii. absence prejudices missing person person should be joined if that person claims an interest relating to
fthe subject of the action and is so situated that disposing of the action
in the persons absence may impair or impede the persons ability to
protect that interest
-NOTE: it is not enough for absent party to merely by interested; needs (1) substantial legal interest
and (2) likelihood of detriment (impair/impede)
-ex. Owner leases space to X and agrees not to lease other space to competitor. Owner goes ahead and
leases to competitor. X sues for injunction. Competitor has substantial legal interest b/c outcome will
affect his occupancy in the mall. However, if X sued for damages, competitor would not have
substantial legal interest b/c result would not affect him
iii. absence prejudices parties person should be joined if that person claims an interest relating to the
subject of the action and his absence would subject an existing party to
substantial risk of incurring double, multiple, or inconsistent obligations
2. May the party be joined? Check PJ and SMJ
3. FRCP 19(b) if yes, then join; if no, is it indispensable to the litigation such that the partys absence will be
prejudicial to either party? If indispensable, drop entire suit.
4. Inability to Join if person who should be joined is not brought into the case, there is a possibility of dismissal
i. P refuses to join if P voluntarily refuses to join party, court will dismiss
ii. P cannot join if P cannot join missing party, court considers 4 factors:
(1) extent to which a judgment rendered in the partys absence would prejudice the absent person
or the parties
(2) whether any prejudice could be reduced (NOTE: dismissal not favored and this option gives
courts leeway not to dismiss)
(3) whether a judgment rendered in the persons absence will be adequate

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(4) whether P will have an adequate remedy if the case is dismissed

-NOTE: when case is dismissed under FRCP 19, it leaves the case open for future litigation
c. Temple v. Synthes Corp. (1990) p. 829 FRCP 19(a)
-FACTS: Petitioner underwent surgery during which a screw device was implanted in his lower spine. The device
was manufactured by the Respondent. Dr. LaRocca performed the surgery the devices screws broke
off inside Petitioners back Petitioner filed suit against Respondent in federal court, alleging defective
design; at the same time filed suit against Dr. LaRocca in state court Respondent filed a motion to
dismiss federal suit for failure to join necessary parties under FRCP 19 TC ordered Petitioner to join
LaRocca for sake of judicial efficiency, or risk dismissal. When Petitioner failed to join physician, court
suit AC affirmed b/c separate trials would be unfair to Ds
-HOLDING: FRCP 19 does not require joining all potential Ds in a single lawsuit
-it is not necessary that ALL joint Ds be named in a single lawsuit; FRCP simply makes it permissible
-analysis of FRCP 19(b) not necessary b/c 19(a) not satisfied
-NOTE: students should realize that this was a per curiam decision. Per curiam decisions usually signify that the
court believes the principles are clear beyond doubt and require no extended discussion
d. Helzbergs Diamond Shops v. Valley West Des Moines Shopping Center (1977) p. 833 FRCP 19(b)
-FACTS: P and D executed a written lease agreement. The lease granted P the right to operate a jewelry store in
the mall After 2 other jewelry stores also became tenants, P filed suit seeking an injunction
preventing it from allowing a 4th jewelry suit was filed in federal court on diversity grounds D
moved to dismiss pursuant to FRCP 19, citing Ps failure to join the purported fourth jewelry store
-HOLDING: a party not within the personal jurisdiction of the presiding federal district court can only be joined
under FRCP 19(b) if it is indispensable to the litigation, such that the partys absence will be
prejudicial either to that party or the previously named D
(4) Intervention (FRCP 24)
a. Generally
-permits an unjoined party to include herself into a suit where no one wants her
-FRCP 24(a) Intervention of Right designed to give those with strong interests in the litigation the power to
insist joinderapplicant who meets criteria must be allowed to join
1. Intervention must be timely (would delay prejudice parties?)
2. Intervener must have an interest in the subject of the suit
3. Interest must be in some strong way at risk
4. timely application no strict deadline, but more likely the earlier in trial
2. grounds needs either (1) federal statute grants right to intervene or (2) applicants claim shares a common
question of law or fact with the existing suit
3. discretion decision to allow/deny intervention is rarely reversed on appeal
b. N.R.D.C. v. U.S. Nuclear Regulatory Commission (1978) p. 840 Application of adequate representation factor
-FACTS: environmental group sued Nuclear Commission, challenging its decision not to conduct an
environmental study before issuing a license to operate a uranium mill to X. Y, which also filed an
application for a license, sought to intervene in the action.
-HOLDING: The court allowed Y to intervene b/c
(1) Ys interest in its own license was sufficient even though the suit did not directly involve Ys application
(2) Ys interest was impaired even though the lawsuit technically would not foreclose Y from making an
arguments it deemed appropriate when its license application was considered b/c if the environmental
group were to prevail in their suit against X, decision would likely affect all companies
(3) X did not adequately represent Y b/c X might have an incentive to argue for a ruling that would apply
prospectively only (leading agency to undertake a full study for Ys application but not Xs)
(5) Interpleader
a. Generally
-joinder designed to deal w/ situation where one party faces multiple, inconsistent claims. Instead of waiting for
the claimants to bring suit (and possibly obtain inconsistent judgments), interpleader allows the party who owes
the obligations to join all claimants and let them fight out distribution among themselves
-claims must be inconsistent (leaving stakeholder exposed to double or multiple liability)

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b. 28 USC 1335 Statutory Interpleader ($500 amount in controversy):

1. Broadens the circumstances in which interpleader is available;
2. Removes limitations on federal subject matter jurisdiction;
3. Permits nationwide service of process;
4. Expands venue provisions to permit venue where any claimant resides
5. NOTE: more useful than rule interpleader b/c of special rules in re SMJ, PJ, and Venue
1. SMJ required over every claim but easier to achieve than FRCP 22
i. minimal diversity among claimants: unlike complete diversity requirement in FRC 22, diversity is
satisfied as long as some two claimants are citizens of different states (ex. 1 CA; 2 NY is fine)
ii. amount in controversy is much lower ($500 vs. $75,000)
iii. nationwide service of process (overrides need for long arm statutes)
2. Federal Question Jurisdiction some courts hold that statutory interpleader is not available when the sole
basis for SMJ is federal question instead, parties must satisfy the minimum diversity requirements
before they can use special PJ and Venue
3. PJ 2361 allows court to serve process anywhere in the U.S.
4. Venue venue is proper in any judicial district where one or more of the claimants resides
c. FRCP 22 Rule Interpleader ($75,000 amount in controversy)
-allows stakeholder to begin an interpleader action in federal court
-subject to normal rules for jurisdiction
1. SMJ court must have basis for jurisdiction over every claimants claim against stakeholder
-NOTE: watch out for complete diversity issues
2. PJ court must have PJ over all claimants
3. Venue venue is proper either where all the Ds reside or where a substantial portion of the events or
omissions giving rise to the claim occurred. If the stakeholder brings interpleader in original claim, the
claimants are Ds; if stakeholder brings interpleader by counterclaim, stakeholder may be sole D and thus
venue would be proper in the district where the stakeholder resides
d. NOTES
-stake: thing being claimed by multiple parties
-stakeholder: person in possession of the stake
-claimant: parties who seek to obtain the property or performance of the obligation
-useful when a party is liable to someone but is not completely sure whom
e. ex. Truck driver collides w/ bus, injuring 25 people. Truck driver only has 30k in assets, plus liability insurance up
to 50k. Injured parties sue in a series of separate actions. Driver cannot interplead b/c her liability is legally
unlimited; insurance company can interplead b/c its liability is capped at 50k separate law suits creates risk
of separate judgments that combined would be greater than 50k maximum
VIII. CLASS ACTIONS (FRCP 23)
(1) Generally
a. permits 1 or more parties to sue/be sued as representative parties on behalf of all those similarly situated
b. if many people find themselves in the same situation, there are advantages from aggregating claims
c. shifts focus from:
1. client to the lawyer
2. damages to attorneys fees
3. litigation to settlement
d. representative on behalf of a number of persons who are not formal parties may bind the entire class (only
representatives are subject to SMJ/PJ requirements)
-Hansberry v. Lee (1940) p. 862
-FACTS: Ds, who were black, moved into a house covered by a racially-restrictive covenant. Neighbors sued
to void the sale of the home to D. D argued that the covenant never became effective because it was
not signed by 95% of the homeowners, as required by its terms TC voided the sale b/c prior Ds
were bound by a decision that the covenant was valid based on prior class action litigation
-HOLDING: there must be adequate representation of the members of a class action in order for the judgment

29

to be binding on the parties not represented

-in general, one is not bound by a judgment in litigation in which he is not designated as a party but there
is an exception when judgment in a class suit in which some members of the class are parties may bind
members of the class who were not parties
-test: a failure of due process occurs when the procedure used does not insure the protection of the
interests of the absent parties who are bound by the judgment (class members have different interests)
-application: since the parties have conflicting interest to the agreement in compelling and resisting
performance, it is hard to say that any of them are of the same class
(2) Class Action Step-by-Step
a. FRCP 23(a) class action requirements:
1.Numerosity established if representative can show that enough person in the class to make joining them
individually impractical (usually > 25)
2. Commonality class should consist of persons who share characteristics that matter in terms of the law
3. Typicality representative must stand in the same shoes as the average class member
4. Adequacy representative AND attorney must fairly and adequately represent the interest of the class
b. FRCP 23(b) further, class action must fit into one of 3 categories:
1. Prevent inconsistent judgments (ex. situations in which varying adjudications with respect to individual class
members would establish incompatible standards of conduct for the party opposing the class);
-NOTE: not common category
2. Party opposing the class action has acted or refused to act on grounds that apply generally to the class;
3. Small Claims (ex. cellphone co. overcharges) and Mass Tort (ex. airplane crash)
-NOTE: requires best-attempt to provide notice to all class members (very expensive last resort)
-additional requirements: (1) questions of law/fact common to class must predominate issues of
law/fact affecting only individual members; (2) class action must be superior to other means
c. Wal-Mart Stores, Inc. v. Dukes (2011) p. 882
-FACTS: Dukes, a Wal-Mart "greeter", and other women filed a class-action in which alleged that the company's
nationwide policies resulted in lower pay for women and longer wait for promotions. The certified class
includes all women employed by Wal-Mart nationwide at any time after 12/26/1998 (largest class action
lawsuit in U.S. history) Wal-Mart argued that the court should require employees to file on an
individual basis b/c class actions of this size are inherently unmanageable and unduly costly per FRCP
23(b) TC upheld the class certification.
-HOLDING: employees' class could not be certified b/c the action did not satisfy the commonality requirement
-commonality requires the P to demonstrate that the class members have suffered the same injury
-commonality tests:
1. Did the employer use a biased testing procedure to evaluate both applicants for employment and
incumbent employees. If so, then commonality met; OR
2. Is there significant proof that an employer operated under a general policy of discrimination
-the employees failed to offer significant proof that the employer operated under a general policy of
discrimination
-expert who testified that the employer had a strong corporate culture that made it vulnerable to
gender bias did not determine how often stereotypes played a meaningful role in mgmt. decisions
-P' statistical and anecdotal evidence did not show that a common mode of exercising managerial
discretion pervaded the entire company.
-in addition, the employees' back-pay claims were improperly certified, which did not allow certification of
monetary relief claims that were not incidental to injunctive or declaratory relief.
(3) Complete Diversity Issues In Re Class Actions
a. Class Action Fairness Act (CAFA) grants original jurisdiction to the federal courts in class actions in which any
member of the class possess the requisite diversity with respect to any defendant + $5M amount in controversy
(4) Settlement of Class Actions

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IX. PERSONAL JURISDICTION (both SMJ and PJ must be satisfied in any case)
A. Generally
-PJ is a courts power over the parties to the case (constitutional requirement)
-if a court does not have PJ over a party, any judgment the court renders does not bind that party b/c violates
parties right to due process
-NOTE: court must have both PJ and SMJ
B. Origins
1. Pennoyer v. Neff (1877) p. 66 presence and consent
-FACTS: Mitchell, a lawyer, sued D his client, for unpaid legal fees. D (nonresident) was not personally
served with process; constructive service was issued upon D by publication. D did not come to
court and default judgment was entered against him. After the default judgment, D acquired 300
acres of land. To satisfy his judgment against D, Mitchell had the sheriff seize and sell Ds land.
The land was purchased by P, who received a sheriffs deed as evidence of title. The sheriff then
turned the sale proceeds over to Mitchell. Shortly after the sheriffs sale, D discovered what had
happened to his land and brought suit against P to recover the land (P argues transfer invalid b/c
first trial was not proper) TC ruled against D
-HOLDING: may enter a judgment against a non-resident only if the party 1) is personally served with
process while within the state, or 2) has property within the state, and that property is attached
before litigation begins
-Here, the SC is distinguishing between suits in personam vs. in rem.
-personam suit is a suit against a person, whose purpose is to determine the personal rights and
obligations of the D
-in rem action is an action where jurisdiction pertains to property
-constructive service is sufficient to inform parties of action taken against any properties owned by them
within the forum state, b/c property is always in possession of the owner, and seizure of the property will
inform the owner of legal action taken against him
-when a suit is merely in personam, constructive service through publication upon a non-resident is
ineffective
-no state can exercise direct jurisdiction and authority over persons/property outside of its territory;
however, a state may subject property within its boundaries to the payments of its citizens, even when
the land is owned by a non-resident
2. Two circumstances where it is legitimate to assert PJ over D:
a. In Personam D actually PRESENT/ reside in state (jurisdiction on D herself)
-NOTE: opinion doesnt tell us what is minimum standard of notice
b. In Rem D owns property in the state, but must ATTACH the property to litigation (jurisdiction over a
particular item of property owned by D)
i. true in rem: main purpose is to adjudicate legal interests in the property in question
ii. quasi in rem: action brought for purposes other than determining competing rights to property
***important do #5 p. 74 (g, h, i are very important)
c. Differences
i. How Jurisdiction Is Obtained
-in personam serve D personally
-in rem seize the property (recent in rem actions require P to notify D directly if can be found)
ii. Effect of Judgment
-in personam judgment binds D personally (P can have assets owned by D seized and sold to
satisfy judgment)
-in rem judgment binds only the property
d. Any judgment rendered w/o reasonable notice violates Ds due process rights and is therefore valid
3. Constitutional concerns
a. Full faith and credit: requires every state to enforce the judgment of every other state; Pennoyer held that
a court need not enforce a judgment entered w/o PJ (PJ is the ONLY exception)
b. Due process: Pennoyer also stated that due process guarantees an individual that his right can be

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adjudicated only be a court that has personal jurisdiction over him thus, a court cannot enforce a
judgment rendered w/o PJ even if it wanted to
B. Minimum Contacts Todays Standard
1. Step-by-Step:
-Is there general jurisdiction? Yes there is jurisdiction; No Is there specific jurisdiction? Yes
jurisdiction; No no jurisdiction
2. International Shoe Co. v. Washington (1945) p.80 Enhanced the reach of PJ by allowing court to rule on Ds
who are not present in the state (replaced Pennoyers
strictly geographic criteria w/ connections to a state)
-FACTS: D was based in DE with an office in Missouri. D employed salesmen that resided in Washington to
sell their product in Washington. Washington sued D after D failed to make contributions to an
unemployment compensation fund exacted by state statutes
-HOLDING: in order for a state to exercise PJ over a D, the D must have certain minimum contacts w/ the
state so that exercising jurisdiction over the D would not offend traditional notions of fair
play and substantial justice
-Ds only connection with state was that it employed salesmen in the state; salesmen did not enter into ks
with buyers but simply sent orders to companys headquarters
-for a corporation, the minimum contacts required are not just continuous and systematic activities
but also those that give rise to the liabilities sued on. D could have sued someone in Washington. It was
afforded the protection of the laws of that state, and therefore it should be subject to suit
-DISSENT: states power to tax should not be qualified by an ambiguous statement regarding fair play and
substantial justice
-NOTE: opinion provides little guidance on fairness other than to indicate that it is inconvenient to litigate
in a distant court
3. Number of Contacts Necessary (General v. Specific Jurisdiction)
a. Specific lawsuit arises from Ds actual contact w state
-ex: DNY drive car and hit P in CA, P can sue in CA
-if the claim is specific jurisdiction (arose out of), single contact is enough
b. claim did not arise out of contacts PJ not allowed even if there are substantial contacts
c. General overwhelming contacts; court suggests that there are cases where the contacts were so
continuous and systematic that PJ is allowed even if the claim was entirely unrelated to the contacts
-NOTE: for exam, general jurisdiction is limited to clear issues such as domicile, corporations, etc.
-Goodyear Dunlop Tires v. Brown (2011) p. 132
-FACTS: families of two NC teenagers killed in a bus crash in France brought suit in NC state,
alleging faulty tires. The tires were made in Turkey, and the Ps sued Goodyear's
Luxembourg affiliate and its branches in Turkey and France AC held that the foreign
Ds had sufficient contacts in the state to support general PJ.
-HOLDING: SC acknowledged that general jurisdiction could exist, but not on the facts of the
present case
-lower court relied on the subsidiaries' placement of their tires in the "stream of commerce" to
justify the exercise of general jurisdiction over the subsidiaries.
-SC determined that the subsidiaries were not amenable to general jurisdiction in NC courts
b/c their attenuated connections to the State fell far short of the continuous and systematic
general business contacts necessary to empower NC to entertain suit against them on claims
unrelated to anything that connected them to the State.
-the sporadic sales of the subsidiaries' tires in NC through intermediaries were insufficient to
warrant the assertion of general jurisdiction
4. Shaffer v. Heitner (1977) p. 93 International Shoe only dealt w/ in personam; Shaffer held that there must be
minimum contacts in re quasi in rem (but no effect on in rem)
-FACTS: corporate officers and directors sought review of TC judgment contending that DE's statute
permitting its courts to take PJ by sequestering D's property located in the state violated the due
process clause b/c it permitted courts to exercise PJ despite the absence of sufficient contacts with
the state

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-HOLDING: Quasi in rem jurisdiction over D cannot be exercised unless D had such minimum contacts with
the forum state that in personam jurisdiction could have been exercised over him
-notion of in rem suit as one against property was a legal fiction b/c the suit really affected the persons
interest in that property b/c due process protects a persons interest in property, in rem cases should be
analyzed under the same minimum contacts standard used in in personam cases
-appellant's seized property did not have sufficient contacts with the state
1. Property was stock owned by D
2. Case did not arise out of the stocks (D was sued b/c of acts they committed as corporate officers
not b/c of their status as shareholders)
3. Court found that although stock was a contact, it was not by itself enough to satisfy test
-appellants had neither purposefully availed themselves of the privilege of conducting activities within the
state, nor had any reason to expect to be brought before a Delaware court.
-Limitations of Holding
1. Shaffer does not destroy in rem jurisdiction, it simply prevents the use of quasi in rem jurisdiction
when the property is the only contact and the action has nothing to do with the property
2. Property is a contact
3. Property alone may be enough if the claim arises out of the property
5. World-Wide Volkswagen Corp. v. Woodson (1980) p. 103
-FACTS: NY resident purchased a car in NY. Purchaser then moved to AR but was involved in a car
accident in Oklahoma while in route purchaser sued NY dealer alleging design defect
-HOLDING: Oklahoma court could not exercise jurisdiction over the NY dealer b/c there were no contacts
between dealer and Oklahoma
a. D has no minimum contacts w/ state b/c they did not purposefully avail themselves
-purposeful availment test: connection count as contact only if it results from an at that defendant
purposefully directed at the forum state
-here, D did not reach out to Oklahoma to distribute cars or advertise and did not know buyer
would take it to Oklahoma
b. Fairness comprises 5 factors:
1. Burden on the D (primary concern)
-considers not only the distance D must travel but any other circumstances that make defending in
the forum burdensome (ex. core legal differences)
2. Interest of the forum in adjudicating the case
-a state is interested in hearing a case if any of the parties are from that state or if the dispute
directly affects that state
3. Ps interest in obtaining convenient and effective relief
-this factor is satisfied if P is from the forum or if the forum is a convenient place to try the case
b/c of the availability of witnesses or other evidence
4. Interest of the interstate judicial system in effective resolution of controversies
-it is inefficient when a case involving multiple parties must be split up and litigated in several
different places
5. Shared interest of the several states in furthering fundamental substantive social policies
-if the alternate forum does not recognize Ps claim, refusing to exercise jurisdiction frustrates the
policy underlying the substantive law
c. Lack of fairness rarely defeats PJ if there are purposeful contacts (requires strong unfairness)
C. Minimum Contacts Step-by-Step
(1) Are there any contacts at all between D and the forum? If not, the analysis stops (no PJ)
(2) Is it fair? If there are contacts, court will review the 5 fairness factors
D. Stream of Commerce Problem
a. Generally
-problem arises when a D distributes its goods in multiple states through a 3 rd party
-although D knows that its goods to a particular state, it does not know exactly which products go where

33

-issue: whether purposefully injecting goods into the stream of commerce constitutes a purposeful availment
with a state in which one of those goods causes injury
b. McIntyre Machinery v. Nicastro (2011) p. 124
-FACTS: the manufacturer directed marketing and sales efforts at the U.S., but the question was whether the
NJ court had the authority to exercise PJ; thus, it was the manufacturer's purposeful contacts with
NJ, not with the U.S., that were relevant
-HOLDING: merely placing a product into the stream of commerce is not enough for PJ, even if D knows the
product will end up in the forum; PJ only exists if D engages in other activities specifically
directed at the forum such as advertising or providing service for the product
c. Internet Cases whether someone who views a web site may sue the person who operates the site in the
viewers home state (depends on type of website)
i. passive site: site that may only be viewed (viewer cannot submit info) never PJ
-exception: site contains material clearly directed at another state (such as defamation of a particular
person)
ii. active site: site where viewer may input info and enter into transaction clearly constitutes a contact with
the viewers state
iii. interactive site: site lies somewhere in between passive and active (viewer inputs info but does not enter
into a transaction) court looks to all the circumstances (level of activity, whether the sale is commercial
in nature, etc.)
-Pavlovich v. Superior Court (2002) p. 118
-FACTS: P is a resident of TX. P does not reside or work in CA. Neither P nor his company has solicited any
business in CA or has any business contacts in CA P was the founder of the LiVid video project;
its site consisted of a single page with text and links to other websites. The site only provided
information; it did not solicit or transact any business and permitted no interactive exchange of info
between its operators and visitors LiVid posted the source code of a program named DeCSS on
its site DVD Copy Control Association, Inc. was the manufacturer of DeCSS. DVD Copy is a
nonprofit trade association organized under the laws of DE with its principal place of business in
CA. DVD Copy alleged that P misappropriated its trade secrets by posting the DeCSS program on
its site; P filed a motion to quash service of process, contending that CA lacked jurisdiction over his
person. TC denied Ps motion
-HOLDING: P asserting a claim based on specific PJ against a non-resident D performing no business in the
state must point to contacts that demonstrate that the D expressly aimed its tortious conduct at
the forum state
-PJ was improper b/c P could not have known that his tortious conduct would hurt the corporation in CA
when the misappropriated code was first posted, his knowledge of the existence of a licensing entity
could not establish express aiming at CA
-when determining whether specific jurisdiction exists, courts consider the relationship among the D, the
forum, and the litigation. Merely asserting that a D knew or should have known that his intentional acts
would cause harm in the forum state is not enough to establish jurisdiction
-DISSENT: by intentionally posting an unlicensed decryption code of DVD Copys product on his website, Pl
was not merely aiming his conduct at specific persons or companies, but an entire industry. Thus,
b/c P knew that at least 2 of the industries companies were located in CA, his tortuous conduct
could be said to be aimed at the forum state
E. Cases outside of minimum contacts framework:
1. Domicile PJ may be exercised over a person who is domiciled within the forum state, even if the person is
temporarily absent from the state
2. State of incorporation
-If D is out-of-state, the minimum contact test is whether D purposefully availed itself to forum state
-fact that product finds its way to forum state NOT enough (World-Wide Volkswagen)
-marketing is enough (World-Wide Volkswagen)
-knowledge of in-state sales enough (Asahi but failed unreasonable exception)
3. Presence allows jurisdiction over anyone who was served while present in the state, regardless of residency
-Burnham (1990) p. 139

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-FACTS: PNJ, visited SoCal on business, after which he went to visit his children in the SF, where his
wife resided. Upon returning the children to his wifes home, P was served with a CA court
summons and a divorce petition. P made a special appearance in CA for the purpose of filing a
motion to dismiss on the ground that the court lacked PJ TC denied the motion; AC denied
mandamus relief
-HOLDING: PJ based on in-state service is acceptable
-forum state had PJ over petitioner after he was served with process while temporarily in the state for
activities unrelated to the pending divorce action
-Scalia: long tradition of exercising jurisdiction over people who were present was enough to show
practice complied with traditional notions of due process. Thus, it was unnecessary to apply
the minimum contacts test (test for people who were NOT present)
-Brennan: minimum contacts test should apply; however, Ds voluntary presence + service while he
was present = general jurisdiction
-Steven: dispute was very easy case and that PJ was present
-NOTE: holding does not apply when Ds presence in forum is not voluntary although PJ would still be
acceptable under Scalias view, the presence would no longer count as a contact, and therefore
general jurisdiction under Brennans view is not available
4. Consent b/c PJ is a personal defense, party may waive it
a. if a party consents to a courts jurisdiction, it is unnecessary to evaluate minimum contacts
b. a party may expressly consent such as through a K specifying disputes may be heard in specific courts
c. implied consent occurs when a party takes actions that are inconsistent w/ his argument that he does not
want the court to hear his claim
i. P who files suit in a forum consents to PJ for all matters arising out of that lawsuit
ii. D may waive objection to PJ by fling other claims/defenses first
C. Challenging PJ:
a. Generally
-12(b)(2) motion have to file in pre-answer or waive forever
b. Step-by-Step:
i. Is the assertion of PJ constitutional?
ii. Is there notice?
-Does it satisfy the state long arm statute? (out-of-state Ds)
c. Notice
-notice: P gives notice of a pending action when she serves the summons and a copy of the complaint on
D; the summons commands D to answer Ps complaint within a fixed period of time
-constitutional requirement DPC requires that D receive adequate notice of the litigation (a judgment
w/o notice is invalid)
-contacts and notice are not substitutes; due process requires both
-acceptable means of notice:
1. Service by publication is only viable when the whereabouts of D is not known and cannot be
ascertained with reasonable effort
2. Other means: first-class or certified mail, service on the secretary of state with instructions to
deliver it to D, or service to an adult who works/resides at Ds residence, email
-long-arm statute: allows service on an out-of-state D
1. Most statutes allow for service of out-of-state Ds only in situations enumerated in the statute
-Gibbons v. Brown (1998) p. 171
-FACTS: P was driving with D and Mr. Brown, in Canada. P allegedly gave faulty directions
to Mr. Brown, who was driving, resulting in him driving down a one-way street
that injured both passengers P, a TX resident, sued Mr. Brown in FL Two
years later, D (Mrs. Brown) brought FL action against P to recover for her injuries
(D alleged that P subjected herself to PJ in FL b/c P brought the prior lawsuit; P
claims that the provisions of Mrs. Browns complaint were inadequate to satisfy the
long-arm statute)

35

-HOLDING: FL statute required party needs to be engaged in activity in the state

-fact that a current party previously brought a suit in the forum state does not constitute
sufficient activities, w/o more, to subject the current party to PJ
2. A few statutes forego the difficulties of enumerating when service will be constitutional and simply
state tat service is allowed whenever the state can exercise PJ over D consisted with the DPC
d. Venue as a further localizing principle (28 USC 1391)
-venue, like PJ, determines where litigation will take place
-unlike PJ, venue flows solely from statutory rather than constitutional sources
-PJ will tell P that she can sue in a state, but venue tell her which of the states districts she can sue
-venue is a consideration in both state and federal courts
-venue is not required by the Constitution (a judgment issued lacking venue is valid and enforceable)
-28 USC 1391: venue in most federal cases is proper in any of the following districts:
1. a district in which any D resides, if all Ds reside in the state in which the district is located
[1391(b)(1)]
-NOTE: if 1 D lives in a different state, venue cannot be determined be Ds residence; see (b)(2)
2. any district in which a substantial part of the events or omissions giving rise to the claim occurred,
or a substantial part of the property that is the subject of the action is located [1391(b)(2)]
-NOTE: events/omissions are substantial only if they are relevant to P claim
3. if no venue is available under (b)(1) and (2), any district in which ay Dis subject to PJ
[1391(b)(3)]
-NOTE: unlike (b)(1), under this provision only a single D needs to be subject to PJ
-NOTE: however, if D is not subject to PJ, that D can have the action dismissed for lack PJ
4. corporations deemed to reside in any district in which it is subject to PJ at the time the action is
commenced [1391(c)(1)]
-NOTE: PJ does not necessarily equate to venue in a multi-district state; 1391(d) treats each
district as a separate state and provides an entity is deemed to reside in that district only If has
minimum contacts with that district
-NOTE: corporations can always be sued in state of incorporation; has venue in each district
within state of incorporations, regardless of minimum contacts
5. aliens and nonresidents an individual D who does not reside in the U.S. may be sued in any
district as long as it still has PJ [1391(c)(3)]
-removal exception: if a case is properly removed from state court to federal court, venue is automatically
satisfied in the district to which the case was removed
-challenges to venue:
1. Time limits party must object to venue no later than the answer, and even earlier in some cases [FRCP12]
2. Waiver by inconsistent actio
D. Other
a. collateral attack: PJ/SMJ is the ONLY exception to Full Faith and Credit (U.S. Const. Art. IV 1)
-that is, 2nd court can review previous opinion to see if court actually had jurisdiction
X. RESPECT FOR JUDGEMENTS
a. Claim Preclusion a.k.a. Res Judicata (affirmative defense barring an entire second action)
-standard doctrinal formulation says that claim preclusion bars the same claim from re-litigation forces parties
to join all claims arising from a single basic event in one case
-merger: when P wins previous action, his claim is merged with judgment and cannot re-bring it against same
D on same COA
-bar: when P loses, claim is extinguished and he is bared from suing again on that COA
-no claim-splitting if P lost 100k as a result but only sues for 25k, cannot later bring suit for the other 75k
-jurisdiction exception: if first court could not hear claim based on jurisdiction failures and 2 nd court can,
P can bring the claim

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-goals: efficiency, finality, and the avoidance of inconsistency

-these rules dont apply to continuing actions (new trial, appeal, etc.)
-Step-by-Step:
1. Case one resulted in final judgment on the merits;
-cases dismissed for jurisdiction are NOT on the merits
-cases decided on SJ/12(b)(6)/JMOL/default judgments/sanctions ARE on the merits
-reasoning is that allowing these issues to be re-tried negates their legal effect
-NOTE: in re default judgments only thing that can be litigated is PJ
2. Party raises a claim that was previously litigated or a claim that arises from the same basic events
3. Claim is barred if it was or should have been raised by a party who was a P in the prior action
-2 cases involve the same claim if the party uses the same legal theory to recovery against the same party
based to the same underlying facts
-claim preclusion also prevents a previous P from re-litigating claims that were not brought in the 1 st
action but are factually related to claims presented in that action
i. majority view: most courts ask if the two claims arise from the same transaction or
occurrence/series of transactions or occurrences
ii. Older CL: must share same relevant evidence test (limits less)
ii. same cause of action (bars significantly less claims)
-looks for considerable overlap in the evidence required to prove both claims; test is satisfied only
if the claims share many of the same basic elements, so the evidence necessary to prevail ont eh
2nd claim is by and large the same evidence that should have been in the first
-Frier v. City of Vandalia (1985) p. 717
-FACTS: When P parked his car in Vandalia (D), the police left two notes at Ps house asking
him to move the car. Police then towed the car. P refused to pay the ten-dollar
garage fee P filed suits in the courts of Illinois seeking replevin. Each suit named
D and the garage that towed the car After losing in state court, P turned to federal
court. His complaint alleged that D violated the Due Process Clause by not granting
him a hearing before or after it took his cars
-HOLDING: b/c the claims shared a significant overlap in evidence, new claims were barred
-one suit precludes a second where the parties and the cause of action are identical
-COA are identical where the evidence necessary to sustain a second verdict would
sustain the first, i.e. where the COA are based upon a common core of operative facts.
-privity exists when , b/c of the relationship between the parties, the 2 nd P that was not part of the original suit
is also barred by claim preclusion
i. party sues as the legal representative of another
ii. two parties have a mutual or successive interest in the same property or contract
-ex. successive owner claims that run with the land (adverse possession) or landlord-tenant issues
-ex. representative
-ex. does NOT include marriage partners
-NOTE: before finding privity, must ensure that the 2 parties are litigating the same legal right (joint
tortfeasors and joint undivided interest in land are not in privity)
-Searle Brothers v. Searle (1978) p. 728
-FACTS: wife sued husband for divorce; when dividing the assets, the court had to deal with a piece
of property. The husband claimed he owned the property jointly with a partnership of
himself and his two sons TC rejected claim and awarded property to wife the
partnership sued to protect it interest in the same property. Wife claimed that the husband
was in privity with the partnership (thus partnership would be bound by the judgment)
court rejected this argument; b/c the husband and the partnership owned the property
jointly, they had neither mutual nor successive interests. Moreover, the fact that the

37

husband was managing partner did not change the result .

-HOLDING: plea can only be asserted against a party in the subsequent suit that was also a party or
in privity with a party in the prior suit.
-in general, a divorce decree like other final judgments, is conclusive as to parties and their
privies and operates as a bar to any subsequent action.
-under res judicata, if the subsequent suit involves different parties, those parties cannot be bound
by a prior judgment.
-collateral estoppel, on the other hand, arises from a different cause of action and prevents parties
or their privies from re-litigating facts and issues in the second suit that were fully litigated in
the first suit.
-the plea of collateral estoppel can only be asserted against a party in the subsequent suit that
was also a party or in privity with a party in the prior suit.
-application: the partnership interest was not legally represented in the prior divorce suit, because
Mr. Searle, the D in the prior action, was acting in his individual capacity as the husband of the P
and was not acting in a representative capacity for the partnership
-Final judgment on the merits in the original litigation
a. Final judgment = not a settlement, but judge makes a final ruling
b. on the merits = jury verdict, SJ, Directed V, 12(b)(6) if leave to amend wasnt taken
Not on the merits = 12(b)(1) lack of SMJ, jurisdictional issues, 12(b)(2) personal jurisdiction
b. Issue Preclusion a.k.a. collateral estoppel (NOT ON EXAM)
-even when a party can bring a claim in a second court, certain issues relevant to that claim may be determined by
the outcome of prior litigation
-Step-by-Step:
1. The same issue is involved in the two actions
2. That issue was actually litigated
3. That issue was actually decided
4. A ruling on the issue was necessary to the decision

38

I. SUBJECT MATTER JURISDICTION

a. Federal Question Jurisdictionp. 1
-well pleaded complaint rule
-Mottley
b. Diversity Jurisdictionp. 2
-Redner v. Sanders
-UMW v. Gibbs
-Exxon v. Allappattah
-Szendrey-Ramos
c. Supplemental Jurisdictionp. 3
d. Removalp. 4
II. PLEADINGS
a. Complaintp. 4
-Gillispie v. Goodyear
-Haddle v. Garrison
-Mitchell v. Archibald
-Twombly
-Iqbal
-alternative pleadingsp. 7
-McCormick v. Kopman
-sanctions/honesty in pleadings
-Golden Eagle
-Walker v. Norwest
-Mattel
-specificity/ securities fraudp. 8
-Stradford v. Zurick Insurance
-Tellabs
-Leatherman
-allocation of burdenp. 9
-Gomez v. Toledo
-Jones v. Bock
b. Ds Response to Complaintp. 10
-default judgment
-12(b) defenses
-answer/affirmative defenses
-Zielinski v. Philadelphia Piers
-Layman v. Southwestern Bell Telephone
-Statute of Limitations
-US v. Kubrick
-couterclaims/cross-claimsp. 12
-Plant v. Blazer
c. Amendment to Pleadingsp. 13
-Beeck v. Aquaslide
-relation back
-Moore v. Baker
-Bonerb
-Worthington
III. PRE-TRIAL DISCOVERY
a. Sequence of Discoveryp. 15
-Davis v. Precoat Metals
-Steffan v. Cheney
b. Privilege
c. Discovery Devicesp. 17
-Initial Disclosures
-Interrogatories/Depositions/Request for Production/Medical Examinations/Requests for Admission
-work product doctrinep. 18
-Hickman v. Taylor
-Sanctions (FRCP 37)

39

-Silvestri v. General Motors

-Zubulake
IV. PRE-TRIAL ALTERNATIVES TO ADJUDICATION
a. Summary Judgmentp. 19
-Adickes v. Kress
-Catrett
-Bias
V. TRIAL
a. Burden of Proof & Persuasion (Reid v. San Pedro) p. 22
b. Judgment of a Matter of Law (directed verdict/j.n.o.v.)
-Penn RR v. Chamberlain
-Railroad v. Stout
c. Verdicts/New Trialp. 23
-Lind v. Schenley
VI. APPEAL
a. final judgment rulep. 24
b. collateral order doctrine
-Liberty Mutual v. Wetzel
-Pullman Standard
c. Scope of Review/ Standard of Reviewp. 25
VII. JOINDER
a. Permissive Joinder (Mosley v. General Motor Corp.) p.25
b. Impleader/100 mile bulge
-Price v. CTB
c. Compulsory Joiner p. 26
-Temple v. Synthes
-Helzberg Diamond Shops v. Valley West Shopping Center
d. Intervention (NRDC v. US Nuclear Commission) p. 27
e. Interpleaderp. 28
VIII. CLASS ACTIONSp.28
-Hansberry v. Lee
-Wal-mart v. Dukes
IX. PERSONAL JURISDICTION
a. Pennoyer v. Neffp.30
b. Full Faith & Credit
c. Minimum Contactsp.31
-International Shoe
-Goodyear v. Brown
-Shaffer v. Heitner
-World-Wide Volkswagen
d. Stream of Commercep. 32
-McIntyre
-Pavlovich
e. Cases outside of minimum contacts framework
-Burnham
-Asahi
f. Long-arm statutesp. 34
g. Venuep.34
X. RESPECT FOR JUDGEMENTS
a. Claim Preclusion (Frier v. City of Vandalia; Searle Brothers) p. 35

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