Documente Academic
Documente Profesional
Documente Cultură
I.
Dissent
o People in need of aid will not be helped because government will
not put people on aid until they have made an exhaustive attempt
to determine eligibility
o Not concerned with balancing issue
Where Court stands on due process today:
o Post 9-11 statute allows government to detain enemy combatants
o Amount of process due before being held decided by weight of
private interest of liberty against governments asserted interest,
which includes burden on government in providing more process
II.
III.
A.
Pleadings
Timing
o Rule 12(a) deals with timing issues of complaints
Rule 8(a)
o States what has to be in the complaint
o Short and plain statement showing that the P is entitled to relief
o Short and plain statement on the grounds upon which the courts
jurisdiction depends
o Demand for judgment for the relief which the pleader seeks
o Form 9 as an example (does not provide elements of claim, date
and time of accident so D knows what complaint is referring to)
o Policy behind form of pleadings:
If too much specificity required, some meritorious claims
will not be brought or will be terminated for failure to meet
standard
If too little is required, suits without merit will be allowed
to be brought
Rule 8(e)2
o P may plead two or more claims, regardless of consistency
Rule 9(b)
o Special matters must be pleaded with particularity if they are to be
raised at trial:
Circumstances giving rise to any allegations of fraud or
mistake, etc. (others listed)
Rule 9(g)
o When items of special damage are claimed, they should be stated
o Items of general damage (suffering, lost income, hospital bills,
etc.) need not be stated with specific dollar amount
Rule 11
o Requires a reasonable investigation of the facts before allegations
Rule 12(b)6 Motion
o Failure to state a claim upon which relief can be granted
o P must state only the facts, not the legal theory she is relying on,
but if D cannot respond because of an absence of a legal theory,
then the court can grant with leave to amend
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C.
D.
E.
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Sanctions: Rule 11
Policy:
o Encourages attorneys to consider merit before filing pleadings,
motions, etc. to limit frivolous claims that may be allowed into
court because of liberal rules
o 1983 amendments required mandatory monetary sanctions upon
attorneys, but this created stifling effect and some meritorious
claims werent filed for fear of rule 11 litigation
o 1993 amendments: safe harbor provision was added, granting of
attorney fees was severely limited
Rule 11 is applicable to every pleading, written motion (to dismiss,
answer, complaint, etc), but not applicable to discovery (separate rule
governs discovery)
Rule 11 motions can be filed against rule 11 motions there is a lot
of litigation surrounding rule 11
There is a continuing obligation to comply with Rule 11 (if P finds in
discovery that something isnt true, P can no longer insist on it)
11(b)
By signing pleading, attorney/party (absent attorney) is
certifying nonrivolous argument that party has evidentiary
support or is willing to tell D that it doesnt have the
support yet
Lawyer certifying that all of this knowledge is after
reasonable inquiry
Sanctions of Rule 11 should be what is necessary to deter party from
conduct
If court decides that $ is necessary for deterrence, $ is
usually paid to court to prevent incentive to file rule 11 to
get $
11(c)
Court may impose sanctions upon attorneys, law firms, or
parties
11(c)(1)(a) safe harbor provision:
Must serve opposing party with Rule 11 21 days before
filing motion with court so party can correct violation
o 11(c)(1)(b)
On courts own initiative, court makes an attorney give
reason for seemingly frivolous claim
Safe harbor provision does not apply
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G.
H.
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I.
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though D can assert that its 3rd partys fault without impleading
her, subpoenaing 3rd party to testify as a non-party)
o 3. For D to have a valid impleader against 3rd party, liability
allegation must be for all or part of Ps claim against D.
If D has a valid claim against 3rd party regardless of
outcome of P v. D, then it is not a valid impleader
Impleader proper even if Ds liability is not established (is or may be
liable)
Courts balance benefits derived from impleader against potential
prejudice to P and 3rd party D.
o Prejudice to P due to additional discovery may be outweighed by
benefits of more efficient litigation gained by impleader.
o delay is taken into account
Policy: to promote efficiency by eliminating necessity for D to bring
separate action against 3rd party; enforces consistency (separate trials
could result in different results)
How Impleader works:
o If more than 10 days have passed after D has filed answer, D has to
make motion to implead
o Rule 8(a) pleading requirements apply to Rule 14
o 3rd party D should raise 12b defenses against 3rd party P by answer
or motion
o 3rd party D may assert against P any defenses which the 3rd party P
has asserting against P
o 3rd party D may, but does not have to, assert any claims arising out
of same transaction or occurrence against P
o Original P may assert a claim against 3rd party D if claims is out of
the same transaction or occurrence as subject matter of original
claim
Possible sources of derivative liability that would support use of 14(a)
impleader:
o Contribution: Joint tortfeasors (there has to be a statute allowing
contribution)
o Indemnification: When there is a certain kind of relationship
between D and third party that creates this right (Ex. Employee
commits torts that employer is liable for employer brings in
employee; general contractor/sub-contractor)
o Subrogation: One person assumes the legal rights of another.
When an insurance company pays out P and then, assuming
Ps rights, sues 3rd party that caused injury and made
insurance company liable to P
Impleader vs. Joiner under 13(h)
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IV.
Discovery
Function: To get facts out before trial
Policy behind expanded discovery:
o Elimination of surprise/trial by ambush so cases are tried on their
merits
o Allows for both sides to access strength and weaknesses of their
case
o Narrows issues to be disputed at trial, reducing drain of resources
on court
o Allows for a higher probability of informed settlement instead of
trial
o Increases effectiveness of summary judgment
o Preservation of testimony in cases where it becomes unavailable
(through death, for example)
o Balance to liberal pleading rules
Tension of fairness and adversary system:
o Duty of attorney to be a zealous advocate of clientthis can
conflict with morally responsible behavior
o Discovery has been restrained in past two decades because of its
reputation for high cost and abuse
Informal Discovery
o Occurs before filing compliant
o Refers to any form of extrajudicial research or inquiry that
attempts to obtain facts relevant to case (internet, public records,
etc)
Timing (30 days to respond)??
Rule 26: Provisions governing discovery; Duty of disclosure
o Rule 26(b)(1): A party may ask for discovery for any information
that:
Is relevant to the claim or defense of any party
This is a broad allowance because it includes info that
appears reasonably calculated to lead to the discovery
of admissible evidence.
Is not unreasonably cumulative or burdensome
Court may limit frequency of discovery when
information sought is unreasonably cumulative or
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o
o
list).
o Objection to the discovery request under 26(b)(1) that it is
cumulative etc. etc. and this done through 34(b) (if the request is
for a written document) written response within 30 days of the
request where you state your objections.
o Party seeking discovery can then file a 37(a)(1-3) motion to
compel discovery.
Requires conference so parties can try to figure it out
amongst themselves before involving judge and satellite
litigation
Discovery Techniques:
o Depositions: Rules 27-32
Used to question potential nonparty and party witnesses
under oath about their knowledge of underlying action
despondent given opportunity to review transcript and
make technical corrections
If despondent is a non-party, moving party usually has to
subpoena him
Parties allowed to attend any deposition by other party
despondent must be given notice in writing of deposition
Objections: parties may object to questions during
deposition, but despondent has to answer all questions
unless objection was to form of question or an objection to
question that would reveal privileged information.
Answers to objected questions remain subject to objection
Anything recorded in deposition is available for use at trial
(can be used if witness unavailable, to impeach witness
testimony
There is a limit to number of depositions that may be taken
until permission must be asked to court
When depositions are not taken:
If attorney doesnt want opposing party to know of her
theories
If she wants to wait to trial to confront witness
Positive aspects:
Attorneys can follow up on answers, take deposition in
new direction
Can request parties to bring documents
Negative aspects:
Expense
o Written Interrogatories: Rule 33
Written questions submitted to party that must be answered
in writing, under oath (limit to 25 until permission from
court required)
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Positive aspects:
Useful for obtaining detailed and noncontroversial info
(names, addresses, dates, etc)
Available for use at trial
Negative aspects:
Answers are almost always drafted by lawyer and are
therefore crafted to contain as little info as possible
o Production of Documents and Things: Rule 34
Party can request other party to produce documents and
things and may inspect and copy documents before
returning them
Document and things: broad term meaning any written,
recorded, or digitalized info, inspection of real or personal
property
Can be directed to a nonparty with a subpoena and a
subpoena duchas tackem (subpoena to bring documents)
Rule 34(b): Requires request be made with reasonable
particularity
Negative aspect:
Can be difficult to find balance between over and under
inclusiveness
o Physical and Mental Examinations: Rule 35
May be requested when persons condition is in
controversy and person to be examined is given proper
notice
Court approval required and good cause showing (only
discovery mechanism requiring court order)
o Request for Admissions: Rule 36
Party may serve on another party within scope of discovery
One party poses a question in form of a statement, which
other party must admit or deny
Once admitted, fact must be taken as true throughout trial
unless court permits withdrawal or amendment
Narrows issues at trial so it will be clear what issues are
contested and what issues parties agree on
No limit on number of requests for admissions a party can
make unless local rules say otherwise
o Experts: Parties can prepare and groom their experts ( criticism
for biased opinions)
Discovery Planning:
o 1. Learn the law: To figure out what facts need to be established in
order to prove/rebut claim/defense
o 2. Review the factual information already at your disposal
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o 3.
o 4.
o 5.
o 6.
V.
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VI.
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VII.
Types of Verdicts
Special verdictRule 49(a): When series of interrogatories are issued
to jury that jury must answer and return to judge, who makes decision
based on the answers
o Allows judge to structure reasoning process of jury
General verdict: Find for P or D. If P, award damages
General verdict with special interrogatories49(b):
o Written interrogatories upon one or more issues of fact, decision of
which is necessary to verdict
o Concentrates jury attention, avoiding confusion, taking emotional
element out of case
Remittitur:
o Damages are excessive so P must agree to decrease in damages or
judge will grant new trial
Additur:
o Constitutionally unavailable in federal court
o Damages are insufficient, so D must agree to adding damages or
will be faced with new trial
VIII. Appeals
Final Judgment Rule: In the federal system, only final judgments are
appealed (no reason to appeal if something can be corrected at trial
level)
o Exceptions:
Collateral Order Doctrine: there is an order that is satellite
litigation and appeal does not require delving into the
merits of the case
Interlocutory Appeal: Primarily related to injunctions
Writ of mendamis: trial court has done something beyond
its power
Standards of review: (Rule 52(a))
o If issue on appeal is an issue of law, appellate court looks at it de
novo (on its own)
o If it was a bench trial and the court ruled on some fact finding, or if
issue on appeal is related to how jury reached its fact, reviewed on
clearly erroneous standard (was a factual finding clearly
erroneous?)
Appellate court will remand for new fact finding
o Discretionary matters, such as new trial granting, reviewed on
abuse of discretion
o Only goes from state to Supreme Court when there is a question of
federal law and final judgment has been rendered by the highest
court of a state in which a decision could be had.
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IX.
Personal Jurisdiction
Addresses issue of whether the court has power to adjudicate over and
bind a particular defendant (idea of state sovereignty)
Role of notice: must ask if the D has received the kind of notice so that
it is fair to adjudicate this issue?
Full Faith and Credit Clause (Article 4, section 1):
o Full faith and credit shall be given in each state to public acts,
records, judicial proceedings in every other state
o Congress legislates how this full faith and credit is given
o 28 U.S.C.full faith and credit statute:
Such acts, records and judicial proceedings shall have full
faith and credit in every court of the United States as they
have in the state in which they were adjudicated. Only
applies to valid judgments.
Extends full faith and credit to federal courts
Categories of jurisdiction:
o In personam: Power over person
P is suing D and basis of lawsuit is some transaction
between them and P is trying to hold D personally liable for
injury
o In rem: Power over property within states borders
an action about and against property, in the sense that
property is the defendant, to determine individuals interest
in property
Used to resolve issue of property (who owns title)
Binds everyone whether or not they had notice, participated
in the proceeding, or were in the state
a state court always has personal jurisdiction over property
in the state
o Quasi in rem:
Based on presence of Ds property (personal or real) within
forum state
claims are unrelated to the property that provides basis for
jurisdiction in forum state
allows court to enter a judgment for an amount of money
not exceeding value of propertyhave to go to another
jurisdiction to enforce rest of the amount owed above the
property value
Property is attached to establish power over D
o Status:
Status of party in state has power over people who dont
live there (ex: wife in Fl wants to divorce husband in AZ)
Challenging Personal Jurisdiction:
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Level of Activity:
Effects of out of
state conduct felt
within the forum
Mid-range of
activities within
forum state
Relation of Claim
to Activity:
Only related
claims
Only related
claims
Only related
claims
Continuous,
systematic,
substantial
activities within
forum
General
Jurisdiction: all
claims, related or
not
o General jurisdiction:
D can be sued for any sort of claim in a particular forum
General jurisdiction can arise if conduct is continuous and
systematic
Grounds for general jurisdiction:
Domicile or citizenship
Incorporation
Service or process in forum state
appearance in court
consent
o Specific Jurisdiction: (Post International Shoe)
Jurisdiction only when claim arises out of conduct that is
the basis for the claim
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X.
9. Notice
Under Pennoyer notice occurred simultaneously with act that gave
rise to jurisdiction, either personal service or attachment of property
within state.
After Intl. Shoe we needed system of notice that complied with
minimum contact analysis.
Mulane v. Central Hanover Bank & Trust, U.S. 1950
o Question of notice to members of a common trust where service
was given in local newspapers in NY while many people in the
trust were non-residents. Company had also sent copies of NY
Banking regulations to members of trust
o Standard of notice: Must be reasonably calculated, to apprise the D
of the lawsuit and provide them a chance for response. Notice must
be of such a nature as to reasonably convey the required
information and must afford a reasonable time for those interested
in making their appearance
o In regards to known persons, notice by publication is not sufficient
o May be sufficient if it is done with some other act (ex. seizure of
property, abandonment), publication may be sufficient notice
o Publication may be adequate where persons are unknown
o Status of law today: Notice by U.S. mail is Constitutional
minimum Ds whose addresses can be ascertained by reasonably
diligent effort
Rule 4 and Notice
o 4(c)(2) says that anyone over age of 18 may deliver service
o 4(d) governs service on corporations
o 4(d) says that P first sends a waiver form asking D to waive actual
service of process. The waiver includes notice of the lawsuit and
copy of the complaint.
4(d)(5)if D denies this waiver, D will have to pay for Ps
costs unless a showing of good cause for failing to comply
wit request for waiver made.
Examples of good cause language differences etc.
o If service is waived, D gets 60 days to file an answer, if not
waived, 20 days upon service.
If statute of limitations is running close, and P is in a state
where SOL continues on until answer, P may not have time
for waiver procedure, and P may have to personally serve
under rule 4(e), 4(h)
o If D refuses to waive, procedure is 4(e)(1) which brings P back to
state law.
o One can object to personal service of process with 12(b)(4), but
cannot waive objection to venue 12(b)(3) and personal jurisdiction
12(b)(2).
Venue
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State venue laws: Identify counties within state where action may be
brought
Federal venue rules: Locate a case within particular federal judicial
districts
If Subject Matter Jurisdiction is based on diversity of citizenship or
federal question, venue is proper in a judicial district where any
defendant resides (if all reside in same state) or where substantial part
of the events giving rise to claim occurred
Corporate defendant resides in any district where it is subject to
personal jurisdiction
If defendants from different state or events of claim rose in foreign
country, diversity action may be filed in a district where any defendant
is subject to PJ and a federal question case in a district where any
defendant may be found (less than PJ)
Many states have more then one federal judicial district; venue is not
about power as is personal jurisdiction but about convenience.
Venue, unlike PJ, is not a constitutional requirement for a valid
judgment
28 USC 1391 (General venue statute)sets up different rules
depending on whether SMJ is based on diversity or federal question
o 1391(a): Diversity of citizenship
1) Party resides: Venue is proper in judicial district where
any D resides if both Ds reside in same state (corporate Ds
reside in any district where it is subject to PJ)
2) Claim: Judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred, or a
substantial part of property that is subject of the action is
situated or
3) Diversity action fall back provision: Where any D is
subject to PJ at any time action is commenced if no district
in which action may be brought otherwise
o 1391(b): When jurisdiction is not solely on diversity of citizenship
1) and 2) the same as above
3) Fall back provision: Where any D may be found (less
that PJforeign Ds)
o 1391(c): Where a corporation resides
Hypos:
o *P is suing D and D1. Lawsuit arises out of a car accident that
occurs in Manhatten. P is a citizen of N.Y. D is a citizen of
Harrisburg PA and D1 is from Pittsburgh. Jurisdiction in federal
court for a state law negligence claim for a state law diversity of
citizenship.
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XI.
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Diversity Jurisdiction
o 28 USC Section 1332 governs Diversity Jurisdiction
Every P must be a citizen of a different state than every D
(diversity across v. not on one side or the other)
Section d(2)(a): Class action suits
o Diversity must exist at all times the complaint is taking filed.
(Though there is now a class action fairness act which allows a
class action to be held on diversity when any 2 parties are diverse)
o Defining Citizenship:
Defines as domicile: the true, fixed and permanent home
and principal establishment, and to which he has the
intention of returning whenever he is absent therefrom
Corporations: citizens of state of incorporation and primary
place of business (i.e. can be citizens of more than one
state, unlike persons)
Determined by nerve center test (where executive and
administrative functions are performed) and place of
operations test (one state where corporate activity is
significantly greater than in the other states
Diversity must exist at time complaint is filed and
subsequent changes in citizenship have no bearing on
diversity
o Amount in Controversy:
Currently $75,000 for diversity cases to reach federal court
Determined by amount claimed by P in good faithcan be
dismissed on this grounds only when appears to a legal
certainty that the claim is for less than minimum limit
federal jurisdiction not lost if judgment is actually for less,
though court costs can be imposed on P who recovers less
Policy: To make sure case is financially significant enough
to be in federal court. Idea that once one claim is
financially significant enough, why not add others?
Exxon Mobil Corp. v. Allapatah Services (U.S. 2005)
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o
o
XII.
Erie Doctrine
In federal diversity cases, there is a question of whether state or federal
law applies
Vertical choice: between state and federal
Horizontal choice: deciding which state law to apply
Federal question cases: Easy to decide what law to apply because
Article 6th (supremacy clause of Constitution) makes it clear that even
state courts have to apply federal law
Diversity Cases: What law does fed. court apply to decide diversity
cases?
Erie Railroad Co. v. Tomkins (U.S. 1938)
o Facts and Procedure: P was walking along pathway along railroad
when freight train operated by Erie Railroad Co came by and hit
him (open door or something). P filed suit in federal court for
southern New York because Erie was incorporated in that state
o If state law applied, P might not be able to recover because of PA
trespassing law
o Issue: Whether the federal court was free to disregard the alleged
rule of Penn. common law
o Rules of Decision Act: Laws of several states shall be regarded as
rules of decision in courts of US in cases where they apply unless
Constitution, treaties, or statutes of U.S. say otherwise.
o Swift v. Tyson was precedent before this.
Interpreted Rules of Decision act to mean that only laws
and not judicial decisions applied Courts exercising
jurisdiction on ground of diversity of citizenship need not
apply unwritten state law as declared by the highest court
and that federal courts could decide what law is
Goal was to create uniform general law in federal court
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o
o
o
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XIV.
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o 3. Ms. Burrell (owner of Jeep) files lawsuit against Randall Dee for
property damage against Jeep and recovers for $2000which is
the maximum that can be recovered in small claims court. Three
months later, she files in Superior Court for more substantial
damages for physical injuries.
She had choice where to file first claim she shouldve
brought in both claims in superior court
o 4. Carpenter filed in superior court against Lowell for failure of
police officers to warn of modifications. Case dismissed because
of statute that says that municipalities cannot be sued because not
responsible for its employees. File judgment, no appeal. Later,
statute overruled saying municipalities could be sued. Can she sue
again?
No. There was a final judgment on the merits. It was
decided under law at the time.
Rule 60(b): provides for relief from judgment under range
of circumstances because of newly discovered evidence,
among other reasons
Exam Taking:
-Dont make conclusory statementsshow how conclusion was reached
-My advice to me: If you think about broad idea (joinder for instance), write it!!
-Make checklist (look at study guide) to figure when and in what order rules apply
-Referencing cases: in order to distinguish
-Cite rules and statutes
-In case of wrong answer, say what would happen if other outcome at previous step (i.e.
what would happen if rules werent in direct collision)
-100 mile bulge: Facilitates impleader when court house is within 100 miles of court
house
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