1L Civil Procedure Outline

School: Duke University School of Law

Instructor: Professor Thomas B. Metzloff
Semester: Fall 2017
Textbook: Civil Procedure: A Contemporary Approach (4th ed.) by A. Benjamin Spencer

I) Punitive Damages
A) State Punitive Damages / Constitutional Excessiveness
i) There is no mathematical bright line for punitive damages. Pacific Mutual v. Haslip.
ii) BMW v. Gore guideposts for determining excessiveness:
(a) Degree of reprehensibility of ∆’s conduct
(1) Degree of reprehensibility of ∆’s conduct is the most important indicium of
reasonableness of a punitive damages award. State Farm v. Campbell (quoting
Gore).
(2) State Farm factors for assessing degree of reprehensibility:
(a) whether the harm was physical as opposed to economic;
(b) whether the tortious conduct evinced an indifference to or a reckless
disregard of the health and safety of others;
(c) whether the target of the conduct had financial vulnerability;
(d) whether the conduct involved repeated actions or was an isolated incident;
and
(e) whether the harm was the result of intentional malice, trickery, or deceit,
or mere accident.
(3) π is presumptively made whole by compensatory damages, thus punitive
damages should only be awarded if ∆’s culpability is so reprehensible as to
warrant the imposition of further sanctions to achieve punishment or
deterrence.
(4) Gore: minimal because damages were purely economic; BMW did not act in
bad faith
(5) State Farm: while ∆’s conduct was bad (albeit in the economic realm),
assessment of reprehensibility of ∆’s conduct should be limited to the
particular case, not used to punish it for similar but unrelated nationwide
conduct.
(b) Ratio (of punitive damages to compensatory damages)
(1) There are no hard, constitutional limits on the ratio, but “few awards
exceeding a single-digit ratio between punitive and compensatory damages, to
a significant degree, will satisfy due process.” State Farm.
(2) Ratios greater than those previously upheld by the Court may only comport
with due process where “a particularly egregious act has resulted in only a
small amount of economic damages.” State Farm.
(3) Conversely, when compensatory damages are substantial, a lesser ratio (of
perhaps 1:1) can reach the outermost limit of the due process guarantee. State
Farm.
(4) Gore: 500:1 ratio raises “suspicious judicial eyebrow”
(5) State Farm: there is “a presumption against” a 145:1 ratio
(c) Sanctions for comparable misconduct

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 (1) The existence of a criminal penalty does bear on the seriousness with which a
State views the wrongful action. State Farm.
(2) But the civil process is not meant to be used to assess criminal penalties,
which require heightened standards of proof. State Farm.
(3) Gore: Maximum civil/criminal penalties would be much less.
(4) State Farm: The greatest sanction would be a $10,000 fine for fraud, dwarfed
by the $145 million award.
iii) Scalia’s Dissent: Due Process provides no substantive protections against “excessive”
or “unreasonable” awards of punitive damages (punitive damages have long been
accepted) and the punitive damages jurisprudence arising from BMW v. Gore is
insusceptible of principled application.
B) Federal Punitive Damages (More Than Due Process)
i) Exxon v. Baker: Federal maritime punitive damages are capped at 1:1 ratio
(a) Punitive damages are very rare internationally
(b) Punitive damages are also limited nationally, with a few outliers.
(1) Variability of the award is a major issue.
II) Jurisdiction
A) For a court to hear a case, it must have personal jurisdiction over the parties and subject
matter jurisdiction over the controversy. It must also be a statutorily appropriate venue.
B) Personal Jurisdiction
i) Rationale for Personal Jurisdiction – World-Wide Volkswagen
(a) Protects ∆s from the burden of litigating in a distant or inconvenient forum (Due
process/fairness concern)
(1) This may be reduced over time due to developments in transportation and
communications – McGee
(b) Ensures States do not reach beyond limits imposed on them by their status as
coequal sovereigns (interstate federalism concern). But really, it’s an individual
liberty interest of which sovereignty is a component, as it can be waived by the ∆.
(c) Other Jurisdictional Interests:
(1) Each party wants a convenient, fair, and unbiased forum to resolve disputes.
(2) States want to open up their courts, resolve disputes, and protect their citizens.
(3) States want to enforce their substantive laws and policies.
ii) Historical Origins
(a) Personal jurisdiction originated in Pennoyer v. Neff in three types:
(1) In Personam Jurisdiction: jurisdiction over a person or entity; gained by:
(a) Consent: ∆ enters a State and consents to be sued there. Foreign
corporations were deemed to have impliedly consented to jurisdiction by
registering to do business there.
(b) Presence: ∆ is physically located within the State when served.
(c) Citizenship: States always have jurisdiction over their citizens.
(2) In Rem Jurisdiction: jurisdiction over property/land physically located within
the State
(3) Quasi-in-Rem Jurisdiction: ∆’s property could be attached at outset of
proceeding so that an otherwise in personam case could proceed in rem
(b) States and their courts often sought to expand jurisdiction, like through quasi-in-
rem jurisdiction from Pennoyer.

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 (c) From Hess v. Pawlowski, a ∆’s use of a State’s amenities (here, a highway)
implied consent to jurisdiction.
(d) Special appearance: ∆ appears solely to contest jurisdiction, otherwise when a ∆
shows up in court, it will have consented to jurisdiction.
(e) Relevance for today: Jurisdiction was based narrowly on physical
location/presence. This still works today, but there are more options too.
iii) Modern Approach
(a) All States define by statute what disputes may be filed in their courts.
(1) Some States explicitly define what cases their courts may hear
(a) This may make it so that cases satisfying the International Shoe test still
may not be brought in the court.
(2) Most States want to open up their courts as much as possible.
(a) These States often have jurisdictional statutes explicitly extending to
limits of International Shoe acceptability, these are called “long arm
statutes.”
(b) Still other States’ “enumerated” (explicitly defined) jurisdictional statutes
are interpreted broadly by their courts as extending jurisdiction to the
outer limits permitted by the Constitution.
(3) It is necessary to check both the jurisdictional statute and the minimum
contacts test.
(b) Minimum Contacts Test: ∆ must have certain minimum contacts of a nature and
quality such that maintenance of a suit does not offend traditional notions of fair
play and justice – International Shoe (extended to people by Kulko)
(1) Inquiry is not mechanical or quantitative.
(2) ∆ should reasonably anticipate being sued in the forum State.
(3) Quality mostly depends on relationship between the contacts and π’s legal
claim.
(4) In International Shoe, ∆ paid 11-13 salesmen by commission in forum State,
occasionally rented space there and solicited business there. Thus ∆ received
the benefits and protection of the law in that State and was amenable to suit
there.
(5) Unilateral acts of π are insufficient to satisfy contact requirement. ∆ must
purposefully avail himself of the privilege of conducting activities in the
forum State. – Hanson
(a) In Hanson, π moved to another State where she conducted a few
administrative activities with ∆. No jurisdiction in that State.
(b) In World-Wide Volkswagen, π drove to another State, got in accident in
that State. No jurisdiction in that State.
(c) But in McGee, ∆ mailed one offer to reinsure to another State (this
insurance policy gave rise to the suit). Jurisdiction was appropriate there.
(c) Deliberate contacts may confer specific jurisdiction when they give rise to the
controversy sued on.
(d) Continuous and systematic contacts within a State may be so substantial and of
such a nature to confer general jurisdiction.
(e) Personal jurisdiction is about picking a minimally constitutionally acceptable
forum, not about picking the optimal forum.

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iv) Specific Jurisdiction
(a) Basic test:
(1) Did ∆ have meaningful connection with forum State?
(2) Did ∆ purposefully avail itself of forum State?
(3) Does the litigation arise out of or relate to ∆’s activities in the State?
(4) Would suing ∆ in the State be consistent with notions of fair play and
substantial justice?
(b) Foreseeability is not totally irrelevant, but it’s not enough either.
(1) In World-Wide Volkswagen, π drove to another State, got into accident there;
cars are meant to be driven around, but that’s not enough to confer
jurisdiction. ∆ could not reasonably anticipate being haled into court there.
(2) Otherwise, every seller of chattels would effectively appoint the chattel his
agent for service of process (i.e. every chattel seller would be amenable to suit
everywhere his chattel could foreseeably be taken).
(c) If a ∆ purposefully avails himself of or purposefully directs his activities toward
the forum State (i.e. deliberately establishes contacts there), then he can
reasonably anticipate being haled into court there, and he may be sued there. –
Burger King. But, based on the following factors, a lower degree of contacts may
be acceptable:
(1) Burden on the ∆.
(2) Forum State’s interest in adjudicating the dispute.
(3) Interstate judicial system’s interest in efficient resolutions.
(4) Shared interest of the States in furthering substantive social policies.
(d) Once ∆’s minimum contacts have been established, a compelling case is needed
to defeat jurisdiction. The above factors in (c) may be used to generally assess the
reasonableness or unreasonableness of the exercise of jurisdiction (Asahi):
(1) The burden on the ∆.
(2) The interests of the forum State in the litigation
(3) The interest of the π in litigating the matter in that State.
(4) Whether jurisdiction serves interstate efficiency.
(5) Whether jurisdiction serves interstate social policy interests.
(e) Signing a contract is another State is not enough in its own right. We need a
contract “plus” some other contacts. Burger King.
(1) In Burger King, πs had meaningful and intentional contacts with forum State,
could reasonably foresee being sued there, and had contract in the forum
State.
(f) Stream of Commerce: Heuristic that when one company sells to another company
a part which is eventually, at some point in the chain of commerce, incorporated
into a final product sold to a consumer, that original company may be liable for
suit based on that final product in whatever State the final product was sold.
(1) Stream of commerce is by itself insufficient to establish purposeful availment.
Asahi.
(a) In Asahi, a Japanese company sold a part to a Taiwanese company that
was eventually used in a product sold to a California consumer. The
California consumer was injured while using the product. The Taiwanese

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 company sought indemnification from the Japanese company in California
court. But the California court did not have jurisdiction.
(2) Mere awareness that the product may eventually arrive in the State is not
enough.
(3) We really need “stream of commerce+” (plus advertising, product support, or
intentional targeting of the forum State, for example). Asahi.
(4) Stream of commerce metaphor is useful only when there is targeting or
personal availment of the forum State.
(a) In J. McIntyre Machinery v. Nicastro, New Jersey did not have
jurisdiction over an English company that sold a product that injured π in
NJ, because the ∆ sold the product through a distributor in Ohio and did
not do any business (no advertising, facilities, employees, license to do
business, taxes, or travel) in NJ.
(b) Personal jurisdiction requires a forum-by-forum analysis to determine if
∆’s actions were really directed at a particular State’s economy. The US is
a distinct sovereign, so ∆ can be subject to US courts, but not any
particular State’s courts.
(g) Internet-based Contacts.
(1) The π is not required to have minimum contacts with the forum State, as long
as the ∆ has requisite contacts with the State and they are related to π’s injury.
In Keeton v. Hustler, the defendant’s circulation of libelous magazines in New
Hampshire was enough to support jurisdiction in NH even though Hustler was
an Ohio corporation doing business in California and π was a New York
resident.
(2) Calder effects test: when the effects of an action outside of a State cause
effects within the State, the State may have personal jurisdiction.
(a) In Calder, the ∆s’ intentional conduct in Florida of writing libelous
articles about the California π, knowingly causing harm in CA, meant it
was fair for CA to have personal jurisdiction over ∆s.
a. Here, CA was the clear focal point of both the story and the harm. The
effects of the FL conduct were felt primarily in CA.
(b) The effects test is still a fairly high bar. Foreseeability still isn’t enough,
nor is untargeted negligence. There must be intentional act expressly
aimed at State, with knowledge that it will cause injury primarily in that
State.
(c) Looking at the ∆, forum, and controversy, while π’s lack of contacts won’t
defeat personal jurisdiction, π’s contacts may be so significant as to permit
jurisdiction where it might not otherwise exist.
(d) That the harm was felt in a State is not enough. ∆ must actually target the
State and be able to reasonably anticipate being haled into court there.
Online, a court may look to advertising and the website in general to
determine if a website (e.g. an article published on a newspaper’s website)
is targeting a State.
a. In Young v. New Haven Advocate, Virginia did not have jurisdiction
over two Connecticut newspapers that wrote libelous articles aimed at
CT audiences about CT’s activities in VA, because the articles were

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 not targeting VA, and nothing about their websites, accessible in VA,
suggested they were generally intended to reach a VA audience.
(3) Zippo interactivity test: the interactivity of a website can determine whether
the website is a meaningful contact:
(a) Passive websites (i.e. purely informational) won’t usually count as a
contact
(b) Active websites (i.e. able to buy something through website, doing
business over the Internet) count as meaningful contacts
(c) Websites in between vary as to meaningfulness as a contact, depending on
the level of interactivity and commercial nature of the information
exchange.
(d) Most courts also require something more, like express aiming or targeting
to indicate the ∆ purposefully and substantially directed his activity at the
forum State.
v) General Jurisdiction
(a) A State always has personal jurisdiction over its citizens. In other words, a citizen
of a State can be sued in that State’s courts for anything (even on activity totally
outside of the State). This is called general jurisdiction.
(b) A State may have general jurisdiction over a foreign corporation (i.e. corporation
may be sued on anything in the State, even on activities unrelated to the State) if it
has sufficient continuous and systematic business activities in the State.
(1) In order to be amenable to suit in the State for anything, the corporation must
do so much business there that it is fairly regarded as “at home” in the State.
(2) In Perkins v. Benguet Consol. Mining Co., Ohio was able to assert jurisdiction
over a Philippine company even when the cause of action arose in the
Philippines, because its CEO moved to OH and effectively ran and conducted
all the activities of the corporation from there during WWII.
(3) With specific jurisdiction, the claim must arise out of the ∆’s deliberate
contacts with the forum State. To claim general jurisdiction, ∆’s contacts must
be so expansive that it is at home in the State (or, for a person, domiciled
there).
(c) Stream of commerce is not enough for general jurisdiction. In Goodyear Dunlop,
even though thousands of its products made its way to NC, this was a small
portion of its total sales and not a sufficient contact in and of itself for general
jurisdiction.
vi) Consent to Jurisdiction
(a) A valid forum selection clause constitutes consent to the court’s jurisdiction, and
thus waives any personal jurisdiction concerns.
(b) Forum selection clauses are presumed valid and should generally be enforced. In
Carnival Cruise Lines, the πs had forum selection clauses printed on their cruise
tickets, which were enforced. If the πs wanted out, they would have had to satisfy
the “heavy burden of proof” that they were physically and financially incapable of
pursuing litigation in the forum State.
(1) Ex ante, forum selection clauses are desirable because they save time/money
by dispelling confusion about where suits can be brought. When they’re not

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 obtained by fraud or trying to discourage legitimate suits, they are generally
good.
(2) Forum clauses make sense for cruise lines: they carry people from all over,
but don’t want to get sued all over. Passengers may benefit by reduced fares
from the savings of the cruise line by limiting the fora in which it can be sued.
vii) Notice (as a constitutional requirement)
(a) Due process clauses of the 5th and 14th Amendments (for state and federal courts,
respectively), constitutionally restrain the method of service of process.
(b) Actual, perfect notice is not required, but the approach to service of process must
be “reasonably certain” or “reasonably calculated” to inform the affected parties.
Mullane. Dusenberry.
(1) In Mullane, publication in a local newspaper was insufficient to notify
beneficiaries of a common trust of its pending settlement (regularly scheduled
“check-up” to verify no wrongdoing by trustee). Personal service for all
beneficiaries would have been too expensive and some beneficiaries were too
remote to identify; but the beneficiaries whose addresses were known should
have been mailed notice.
(c) Due process does not require “heroic” effort at achieving notice. Dusenberry.
(1) In Dusenberry, FBI’s system of mailing letters to federal prisoner by certified
mail to the federal prisoner (care of the federal prison), address of prisoner’s
arrest, and address of prisoner’s mother and constructive notice in three
consecutive Sunday editions of local newspaper was reasonably calculated to
apprise prisoner of the pending taking.
(d) But due process may entail further responsibility when a party becomes aware
that its attempt at notice has failed and other reasonable steps are available. Jones
v. Flowers.
(1) In Jones v. Flowers, the State sent letters by certified mail to the ∆, which
were returned unclaimed. Because the State knew ex ante that it would
promptly learn whether its notice attempt had succeeded and had, upon the
return of the letters, good reason to suspect ∆ had not received notice,
deciding to take no further action was not what someone desirous of actual
notice would do if other reasonable steps were available.
(e) The greater the potential loss, the more effort at notice is required. (Compare
settlement in Mullane to takings in Dusenberry and Jones).
C) Subject Matter Jurisdiction
i) Key Subject Matter Jurisdiction Concerns:
(a) Subject matter jurisdiction is a fundamental limit on the power of federal courts to
act. Unlike personal jurisdiction, it cannot be waived by the parties and subject
matter jurisdiction issues can be raised at any time.
(b) Floodgates problem: don’t want too many cases to wind up in federal court, don’t
want to take cases away from state courts that were historically in their domain.
ii) Diversity Jurisdiction
(a) 28 U.S.C. 1332(a): The district courts shall have original jurisdiction in all civil
actions where the amount in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs and is between
(1) Citizens of different states;

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 (2) Citizens of a state and citizens or subjects of a foreign state, except that the
district courts shall not have original jurisdiction under this subsection of an
action between citizens of a State and citizens or subjects of a foreign state
who are lawfully admitted for permanent residence in the United States and
are domiciled in the same state;
(3) Citizens of different States and in which citizens or subjects of a foreign state
are additional parties; and
(4) A foreign state as plaintiff and citizens of a State or of different States.
(b) Key Idea: federal courts have jurisdiction over cases between citizens of different
States (with complete diversity) that also satisfy the amount-in-controversy
requirement.
(c) The point of diversity jurisdiction is to reduce bias against out-of-state parties.
(d) Citizenship
(1) Corporations
(a) An LLC or partnership is a citizen of any State that at least one of its
constituent members or partners is also a citizen of.
(b) 28 U.S.C. 1332(c)(1): A corporation shall be deemed to be a citizen of any
State by which it has been incorporated and of the State where it has its
principal place of business.
(c) Hertzcorp Nerve Center Test: For diversity purposes, a corporation’s
principal place of business is its “nerve center,” usually its headquarters,
where its officers direct, control, and coordinate its activities. Hertzcorp v.
Friend.
a. Headquarters are not considered the principal place of business if
“simply an office where the corporation holds its board meetings.” In
general, courts should avoid attempts at manipulation and look to the
place of actual direction, control, and coordination.
b. SCOTUS has acknowledged that some anomalies may arise, but the
primary need is for administration of the statute to remain as simple as
possible.
c. Prior to Hertzcorp, some courts (like the 9th Circuit) used the
“predominant place of business” standard, determining citizenship
based on amount of activity on a state-by-state basis.
(2) Natural Persons
(a) To become a citizen of a State, a person must be a U.S. citizen and a
domiciliary of that State and intend to remain domiciled in that State
indefinitely.
a. In Gordon v. Steele, the π’s domicile changed to the State of her
college, because of her connection to that State and because of her lack
of intent to return to her previous home State (the court focused on her
long-term apartment rental in college State and her subjective intent
not to return to her parents’ home).
b. In Mas v. Perry, π’s domicile did not change from her home State
because she did not have intend to stay put in her new, graduate school
State, even though she also did not intend to return to her home State.

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 (b) In assessing a person’s domicile, may consider: voting, taxes, real estate,
personal property, driver’s or other licenses or IDs, bank accounts, job,
membership in church or clubs, and, importantly, where he represents his
domicile to be (subjective intent is a major factor).
(c) An American woman does not have her State citizenship changed because
of her marriage to an alien. Mas v. Perry.
(d) When in controversy, realist judges sometimes “fill in the blank” as they
desire (set a person’s State citizenship to produce the desired outcome of
either keeping or getting rid of the case).
a. Federal judges usually don’t like diversity cases, and so there is often a
desire to get rid of the case.
b. But judges also don’t like inefficiency, so if the case has already been
tried, judges may prefer to keep the case.
(3) Complete Diversity Requirement
(a) Usually, complete diversity of the parties is required: none of the πs may
be from the same State as any of the ∆s.
a. But Congress has lowered the complete diversity requirement in some
cases.
(4) The burden of proving diversity is on the party seeking to invoke diversity
jurisdiction.
(5) Diversity is assessed at the time of filing. Parties do not need to be diverse
beforehand (even at the time of the events in controversy), nor do they need to
remain diverse after.
(e) Amount-in-Controversy Requirement – mostly from Del Vecchio
(1) For a case to be heard in federal court under diversity jurisdiction, it must
exceed (greater than, not equal to) the amount-in-controversy requirement of
$75,000.
(2) The amount in controversy can be calculated from either the π’s or the ∆’s
viewpoint.
(3) If a π has multiple claims against a ∆, the value of those claims may be
aggregated (added together) to compute the amount in controversy. If a π has
multiple claims against multiple ∆s, claims may be aggregated only if ∆s are
jointly liable.
(4) Anti-Aggregation Rule: The values of claims from multiple πs may not be
added together in computing the amount in controversy; at least one π’s
claims, standing alone, must meet the requirement. Exxon Mobil v. Allapattah.
(5) Punitive damages can count toward the amount in controversy, unless it
appears to a legal certainty that the claim is really for less than the
jurisdictional amount (i.e. legally certain that π cannot recover more than
$75,000).
(6) Interest, costs, and counterclaims by the ∆ do not count toward the amount in
controversy.
(7) The π may be able to expressly disclaim amounts in excess of the
jurisdictional requirement in order to avoid removal to federal court.
iii) Federal Question Jurisdiction

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(a) Constitution Art. III § 2: The judicial power shall extend to all cases, in law and
equity, arising under this Constitution, the laws of the United States, and treaties
made, or which shall be made, under their authority.
(1) The Constitution permits Congress to authorize federal courts to hear a broad
range of cases arising under federal law.
(a) Osborn Ingredient Test: Constitutionally, federal courts may hear any case
in which there is a federal ingredient.
a. In Osborn, federal statute requiring all cases involving the Bank of the
United States to be heard in federal court was acceptable under
Constitution.
(b) 28 U.S.C. § 1331: Federal district courts have original jurisdiction over all civil
actions arising under the Constitution, laws, or treaties of the United States
(1) This statute actually creates federal question jurisdiction. Despite using the
same language as the Constitution, it is interpreted much more narrowly.
(c) Well-Pleaded Complaint Rule: For federal question jurisdiction, π’s complaint
must allege that ∆ violated federal law. In other words, for a complaint to be well-
pleaded, the federal question must arise directly from π’s complaint, not from its
anticipation (even correct anticipation) of defenses. Louisville & Nashville
Railroad v. Mottley.
(d) Creation Test: If federal law creates π’s right to relief (i.e. federal law creates the
cause of action), then federal question jurisdiction. American Well Works.
(1) Some statutes expressly create a private right of action. For those that do not,
a private right of action may be implied based on these factors:
(a) Is π part of the class for whose special benefit the statute was created?
(b) What did Congress intend?
(c) Would a private cause of action further the legislative scheme?
(d) Was it traditionally part of state law?
(e) What would the impact be on case load?
(f) These days, answer is usually that there is no implied private right of
action.
(e) Essential Federal Element Requirement
(1) While the Creation Test handles vast majority of cases, there are some cases
that may still be heard under federal question jurisdiction even though the
federal question is embedded in a state law claim.
(2) A federal court ought to be able to hear claims under state law that
nonetheless turn on substantial questions of federal law, and thus justify resort
to the experience, solicitude, and hope of uniformity that a federal forum
offers on federal issues.
(3) Federal question still must arise from a well-pleaded complaint (i.e. not
embedded in a possible or actual defense).
(4) Federal question jurisdiction is appropriate when a state law claim (1)
necessarily raises a federal issue, (2) actually disputed and (3) substantial, (4)
which a federal forum may entertain without disturbing any congressionally
approved balance of federal and state judicial responsibilities. Grable.
(a) The claim must clearly and substantially depend on a question of federal
law, it should be the primary or sole legal issue.

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 (b) We don’t want to open the floodgates!
(c) Strongest when there are strong third party, federal government interests
in the outcome of the federal question decision.
iv) Supplemental Jurisdiction
(a) Supplemental jurisdiction permits a federal court to hear additional claims related
to an original claim even though the court would otherwise lack subject matter
jurisdiction to hear the additional claims independently.
(b) Just because the FRCP authorize joinder of claims doesn’t automatically grant
federal courts subject matter jurisdiction to hear them. Properly joined claims do
not necessarily need to be supported by supplemental jurisdiction if they are
independently supported by diversity or federal question jurisdiction.
(c) 28 U.S.C. § 1367(a): In any case in which the federal courts have original
jurisdiction, there shall also be supplemental jurisdiction over all other claims that
are so related to the claims in action within such original jurisdiction that they
form part of the same case or controversy under Article III.
(1) This is intended to codify United Mine Workers v. Gibbs and its idea of
permitting supplemental jurisdiction over claims that arise from a “common
nucleus of operative fact.”
(2) The statute expressly states that supplemental jurisdiction shall include claims
that involve the joinder or intervention of additional parties.
(d) 28 U.S.C. § 1367(b): In diversity cases, there is no supplemental jurisdiction over
claims against ∆s joined under Rule 14, 19, 20, or 24 or claims by potential πs
joining or intervening under Rule 19 or 24.
(1) Note: 1367(b) is only a restriction on claims by πs against ∆s, counterclaims
by ∆s are not restricted by 1367(b). 1367(b) also applies only to diversity
cases.
(e) 28 U.S.C. § 1367(c): Codification of the Gibbs factors for discretionary denial of
supplemental jurisdiction:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the
district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original
jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining
jurisdiction. (example from Gibbs: likelihood of jury confusion)
(f) In a diversity case, when one π’s claim satisfies the amount in controversy
requirement, the federal court may assert supplemental jurisdiction over claims of
other πs which do not satisfy the amount in controversy requirement, provided
their claims arise from the same fact or controversy. Exxon Mobil v. Allapattah.
(g) If extending supplemental jurisdiction over a claim in a pure diversity case would
destroy complete diversity, then supplemental jurisdiction does not apply?
v) Removal of Cases from State to Federal Court
(a) 28 U.S.C. § 1441(a): except as otherwise provided by an Act of Congress, any
civil action brought in a State court of which the district courts have original
jurisdiction, may be removed by ∆, to the district and division embracing the
place where such action is pending.

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 (1) The case as pleaded by π must have been eligible to be heard in federal court.
In other words, π’s well-pleaded complaint must have been able to have been
filed and heard in federal court. Hays v. Bryan Cave.
(b) Rationale for Removal:
(1) Purpose is to balance forum selection powers between π and ∆.
(2) ∆ should have the same option as π to have a federal court hear a case that is
within federal subject matter jurisdiction.
(3) Removal is strictly a statutory creation and is fairly technical. If a case is
improperly removed, it will be remanded back to State court.
(c) 28 U.S.C. § 1441(b)(2): A diversity case may not be removed to federal court if
any ∆ is a citizen of the forum State.
(1) Does not apply to federal question cases.
(2) Rationale: The point of diversity jurisdiction is to avoid bias against foreign
parties. There is no risk of prejudice in ∆’s home State.
(d) Removal Procedure:
(1) All ∆s must agree to remove case within thirty days of the case becoming
removable.
(a) Case may be removable at the time it is filed (hence thirty days from
filing), or an unremovable case may become removable later if π amends
its pleading.
(b) All ∆s must agree to remove the case, if any refuse, the case remains in
State court.
(2) ∆(s) file notice of removal.
(3) Copies of State court pleadings are filed in federal court.
(4) π must make a timely objection to removal, or waives right to do so.
(5) Case is removed from State to federal court for the district “embracing” place
where the action was pending (typically the federal district court in the same
geographic area).
(a) Venue is automatically proper in that district.
(e) Methods for π to avoid removal:
(1) In a potential diversity case, join an in-state ∆, thus barring removal under ∆
1441(b)(2).
(2) In a potential diversity case, join a non-diverse ∆ (∆ from same State as π),
thus destroying complete diversity and making it no longer removable under
diversity jurisdiction.
(a) You cannot sue fraudulently joined ∆s, but a common strategy of pleading
broadly is not a fraud or a sham.
(3) In a potential diversity case, claim less than (or equal to) the amount in
controversy requirement ($75,000).
(4) Choose not to raise a federal claim.
(a) π is the master of his complaint and can choose not to raise a federal claim
and file only state law claims.
D) Venue and Transfer
i) Venue is not a constitutional doctrine, but a product of federal statutes. There is
typically no federalism or constitutional issue at stake. It is primarily focused on
judicial housekeeping, finding a sensible and convenient venue for the litigation.

12
ii) 28 U.S.C. § 1391(b): A civil action may be brought in
(1) a judicial district in which any defendant resides, if all defendants are
residents of the State in which the district is located;
(2) a 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 to the
action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided
in this section, any judicial district in which any defendant is subject to the
court’s personal jurisdiction with respect to such action.
iii) § 1391(b)(3) is called the “fallback provision.” If there is no appropriate venue under
§§ 1391(b)(1) or 1391(b)(2), then it permits venue in any district having personal
jurisdiction over any ∆. If the other two provisions identify any appropriate venue,
then § 1391(b)(3) does not apply.
iv) The district where “a substantial part of the events or omissions giving rise to the
claim” in § 1391(b)(2) does not need to be the main or principal place of activity, as
long as it is significant. It may include where the “harm was felt” in a tort case.
v) 28 U.S.C. § 1391(c): Residency. — For all venue purposes —
(1) a natural person, including an alien lawfully admitted for permanent residence
in the United States, shall be deemed to reside in the judicial district in which
that person is domiciled;
(2) an entity with the capacity to sue and be sued in its common name under
applicable law, whether or not incorporated, shall be deemed to reside, if a
defendant, in any judicial district in which such defendant is subject to the
court’s personal jurisdiction with respect to the civil action in question * * *;
and
(3) a defendant not resident in the United States may be sued in any judicial
district, and the joinder of such a defendant shall be disregarded in
determining where the action may be brought with respect to other defendants.
vi) 28 U.S.C. § 1391(d): Residency of corporations in States with multiple districts.
For purposes of venue under this chapter, in a State which has more than one
judicial district and in which a defendant that is a corporation is subject to
personal jurisdiction at the time an action is commenced, such corporation shall
be deemed to reside in any district in that State within which its contacts would be
sufficient to subject it to personal jurisdiction if that district were a separate State,
and, if there is no such district, the corporation shall be deemed to reside in the
district within which it has the most significant contacts.
vii) The function of § 1391(d) is to make venue harder for corporations to challenge
successfully.
viii) When a case is removed to a federal district court, that district is made into a
proper venue for that removed case, and venue may not be challenged.
ix) Venue may be waived by ∆. The proper mechanism for challenging venue is a motion
to dismiss for improper venue under Fed. R. Civ. P. 12(b)(3). Because it is a waivable
defense, any motion to dismiss must be made in the ∆’s initial response to π’s
complaint, or it is waived.
x) Changing Venue

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(a) 28 U.S.C. § 1404(a) (justice/convenience or consent transfers): For the
convenience of the parties and witnesses, in the interest of justice, a district court
may transfer any civil action to any other district or division where it might have
been brought or to any district or division to which all the parties have consented.
(1) The goal of § 1404(a) is to get cases to the best possible venue; this is the
mechanism for transferring the case to a more desirable venue (or one
contracted for with a forum selection clause), when that venue is another
federal forum.
(2) The district court may only transfer a case to a forum where the case may
have been brought in the first place. If π would have been unable to bring a
case in a given forum without ∆’s consent, ∆ may not later have the case
transferred to that forum under § 1404(a), unless π also consents to that forum.
(§ 1404(a) was specifically amended to allow transferring when both parties
consent.) Hoffman v. Blaski.
(3) Private factors in to be balanced in determining whether a case should be
transferred (from Piper Aircraft Co. v. Reyno, applied to § 1404(a) by Atlantic
Marine):
(a) Ease of access to sources of proof
(b) Availability of compulsory process for attendance of unwilling witnesses;
cost of obtaining attendance of willing witnesses
(c) Possibility of viewing the premises, if necessary
(d) Any other practical problems that make a trial “easy, expeditious, and
inexpensive”
(e) Other factors suggested by Smith v. Colonial Penn: locations of counsel
and parties & possibility of delay and prejudice if transfer is granted.
(4) Public factors in determining whether a case should be transferred (also from
Piper Aircraft):
(a) Administrative difficulties flowing from court congestion
(b) Local interest in having localized controversies decided at home
(c) Familiarity of forum with law to be applied (e.g. in diversity cases, a
forum that is at home with the law may be desirable; also, the avoidance
of conflicts based on foreign law)
(d) Giving weight π’s choice of forum (usually entitled to great deference)
(b) 28 U.S.C. § 1406(a) (incorrect venue transfers): The district court of a district in
which is filed a case laying venue in the wrong division or district shall dismiss,
or if it be in the interest of justice, transfer such case to any district or division in
which it could have been brought.
(1) This is the mechanism for transferring a case to an appropriate federal forum
when the statutory venue requirement is not satisfied by the current forum.
(2) Before § 1406, district courts would just dismiss a case if venue was
improper, now courts usually just transfer it to an appropriate venue.
(c) 28 U.S.C. § 1407 creates special bodies called Judicial Panels on Multidistrict
Litigation, where civil actions sharing common questions of fact pending in
different federal districts may be transferred to any district for consolidated
pretrial proceedings.
(d) Forum Selection Clauses & Venue

14
 (1) Forum selection clauses, contractual provisions where the parties agree to
resolve cases in a certain forum, are favored unless enforcement would clearly
be unreasonable and unjust. The Bremen v. Zapata.
(2) Forum selection clauses do not affect the determination of whether venue is
wrong or improper for the purposes of § 1406(a). Venue is a statutory creation
and the appropriateness of venue is determined by federal venue laws, which
say nothing about forum selection clauses. Atlantic Marine.
(3) The appropriate mechanism for enforcing a forum selection clause that points
to a state or foreign forum is through the doctrine of forum non conveniens. §
1404(a), as a codification of the doctrine of forum non conveniens for cases
where the transferee forum is in the federal system, is the appropriate
mechanism for enforcing a forum selection clause that points to another
federal forum. Atlantic Marine.
(4) There is very little room to avoid a forum selection clause. With a forum
selection clause, the Piper Aircraft private factors for transferring a case under
§ 1404(a) go away and, with regard to the public factors, π’s subsequent
choice of forum merits no weight because π already chose a forum with the
forum selection clause. The forum selection clause must be given controlling
weight in all but the most exceptional cases. The analysis is effectively the
same when the contracted-for forum is a state or foreign court, except forum
non conveniens is used rather than § 1404(a). Atlantic Marine.
(e) Van Dusen Rule: Normally, the choice of law rules of the original court where a
case is filed will be used, even if the case is transferred. A federal court sitting in
diversity will follow the choice of law rules of the state in which it sits; if the case
is transferred, the new court will apply the choice of law rules of the transferor
court.
(1) Atlantic Marine Forum Selection Clause Exception: When there is a forum
selection clause, the court in the contractually selected venue should apply its
own choice of law rules, not the law of the transferor venue to which π waived
its rights; doing otherwise permits πs to flout their contractual obligations.
(f) Forum Non Conveniens
(1) When a forum outside of the federal system is better suited, the common law
doctrine of forum non conveniens permits federal courts to dismiss the case so
that it may be tried in a different judicial system.
(2) The Piper Aircraft private and public factors balancing test described
above (Piper Aircraft actually cites to Gilbert for these factors) should be
used in analyzing whether dismissal under forum non conveniens is
appropriate.
(3) Under Piper Aircraft, just because a forum may be less favorable to πs does
not mean that the dismissal under forum non conveniens is inappropriate.
(4) The Piper Aircraft Court had several concerns when approving of a forum non
conveniens dismissal of a case where an airplane had crashed in Scotland:
(a) The case was clearly Scottish and there was ongoing litigation there,
trying it in America under (potentially) Scottish law would have been
confusing, and this sort of determination was highly factual and best left in
the hands of the trial judge.

15
 (b) Also, this seemed to be a case of money-grubbing πs trying to create a
U.S. case. The Court wanted to avoid Americanizing world litigation
disputes, and avoid opening the floodgates to foreign πs coming to
America in search of a more favorable forum.
(5) Courts dismissing a case under forum non conveniens sometimes impose
certain restrictions or conditions such that, if the parties or the new forum
violate those conditions, the courts may reaccept the case.
III) The Erie Doctrine
A) Pre-Erie and Erie
i) Since different states have different laws, the question of what law to apply (“choice
of law”) in a case can be very important. Each state has a choice of law statute that
describes its approach. When litigants are in federal court with a state law claim, as a
result of diversity or supplemental jurisdiction, the modern Erie doctrine governs
which law should apply.
ii) The Rules of Decision Act (RDA) of 1789 is codified as 28 U.S.C. § 1652:
The laws of the several states, except where the Constitution or treaties of the
United States or Acts of Congress otherwise require or provide, shall be regarded
as rules of decision in civil actions in the courts of the United States, in cases
where they apply.
iii) Swift v. Tyson (1842)
(a) In Swift v. Tyson, the U.S. Supreme Court distinguished interpreted “laws” in the
RDA to mean statutes passed by legislatures, not case law.
(b) The legal culture at the time saw the common law as the pursuit of one true,
absolutely right, absolutely moral law.
(c) Thus, federal courts were free (as were all common law courts) to develop their
own set of interpretations of state laws, distinct from the state interpretations, to
determine the best/right law on a particular issue.
(d) For almost 100 years, the Court developed a “federal general common law”
applicable to issues arising in diversity cases, and distinct from state common law.
(e) Practical/Constitutional Problem with Swift
(1) In practice, Swift encouraged forum shopping and discrimination by
noncitizens against citizens of a state, by permitting noncitizens to select
between different federal/state interpretations of the same law, exacerbated by
the fact that those with sufficient resources to move about were able to change
their state citizenship at will.
(2) Enabling this sort of issue may cause an issue for the constitutional equal
protection or the separation of power requirements. While most agree that, as
the court states in its opinion, Erie has some constitutional underpinning, the
Erie opinion does not explicitly state what the constitutional provision is at
issue under Swift. The Erie opinion does say that Congress cannot tell the
states what their laws should be, thus federal courts should not have that
power either. Most agree that this comes from federalism concerns in the 10th
Amendment.
(3) This issue was exemplified by Black & White Taxicab, where π taxicab
company and a railroad company wanted to enter into a contract where π
would exclusively provide transportation from a Kentucky rail terminal. Then

16
 ∆ taxi cab company showed up at the terminal to provide transportation
services. Kentucky law held exclusive contracts of the sort entered into by π
and the railroad company to be invalid, but the majority rule in the U.S. was
that they were valid. So, π reincorporated just across the border in Tennessee,
so as to create diversity of citizenship (note: this may not be enough for
diversity today) and obtain a ruling under federal general common law, rather
than Kentucky law.
(f) Jurisprudential Problem with Swift
(1) Swift was based on a now outdated assumption that there was a transcendental
body of correct law outside of any state, and it was the duty of common law
courts to pursue this law.
(2) Legal realists rejected this notion as a fallacy: law is made by a government
with power, not discovered. On many issues, there is no one, true, just law.
(g) Historical Problem with Swift
(1) An earlier, previously undiscovered draft of the RDA suggested that federal
courts should apply both “the Statute law of the several States” and “their
unwritten or common law,” which Justice Brandeis took, in his Erie opinion,
to be an indication that the original intention of the drafters of the RDA was
actually for “laws” to include state case law, as well as state statutes.
iv) Erie Railroad Co. v. Tompkins (1938)
(a) Erie overruled Swift, which had been the law for almost 100 years. See above for
the problems with Swift that were highlighted by the Erie opinion.
(b) Basic, Sensible Holding of Erie: In diversity cases (or where a court is exercising
supplemental jurisdiction), where the federal court is dealing with state law
claims, the federal court should apply the substantive law of the state involved. In
other words, under the RDA, state judicial decisions are part of the laws of the
state.
(c) If the law is unclear on a particular issue, a federal court should attempt to predict
how the state’s highest court would rule on that issue, rather than implement
whatever the federal court thinks the “best” law is.
(1) In some states, there is a process to certify a question to the state court for
resolution.
(d) While state substantive law applies under Erie, state procedural law may not. The
difficulty in the development of the Erie doctrine is in distinguishing between
substantive and procedural law.
B) Post-Erie Developments
i) Erie requires federal courts deciding state law claims to apply state substantive
common law.
ii) In many cases, Erie is easy to apply: for instance, whether someone walking parallel
to a railroad track is owed a duty of reasonable care by the railroad or is a trespasser
and thus owed a lesser duty of care is clearly a substantive issue.
iii) The difficulty is what should be done with procedural rules. Erie did not explicitly
address procedural rules.
iv) The key difficulty with procedural rules is that some rules have both substantive and
procedural elements. For example, a statute of limitations seems to govern court
procedure, but can also clearly determine the outcome of cases.

17
 v) What should be done when there is a conflict between the state and federal
approaches in these sorts of semi-procedural, semi-substantive rules?
vi) Guaranty Trust (the outcome-determinative approach)
(a) In Guaranty Trust, the Court suggested that the main policy goal of Erie was to
treat like cases alike between federal and state court.
(b) In Guaranty Trust, a claim would have been barred by a state’s statute of
limitations, but potentially permitted under the federal doctrine of laches. The
Guaranty Trust Court thus held that federal courts cannot provide a remedy when
a state court would not do so.
(c) In an effort to cut down on forum shopping, the Guaranty Trust Court suggested
that Erie should apply wherever the difference between the federal and state
approaches significantly affects the result of a case, and that the outcome of a case
between federal and state court should be substantially the same.
(d) The Guaranty Trust view is that federal courts sitting in diversity should function
essentially like another state court.
vii) Byrd v. Blue Ridge (balancing of state and federal interests)
(a) In Byrd, at issue is whether π, an electrical lineman, injured while connecting
power lines to a new substation, was an employee of ∆, a power company. If he is
an employee, he is entitled by default to worker’s compensation. If he is not, he
may sue for negligence. State law is that π’s employment status should be
determined by a judge (as the ∆ desires), but a federal court may allow the π’s
status to be determined a jury. Should state or federal law trump?
(b) Byrd affirmed the distinction between respecting state-created rights and
obligations (substance) and the form and mode of enforcing those rights
(procedure), and also suggested that we should consider the importance of the
policies underlying the competing legal rules.
(c) While the resolution of the issue in Byrd may be outcome determinative, there
were “affirmative countervailing considerations,” the Byrd Court thus suggested a
balancing test between:
(1) Importance of the state’s interests (in Byrd, not very important).
(2) Importance of the federal government’s interests (in Byrd, the federal right to
jury trial is very significant)
(3) Extent of outcome-determinativeness (in Byrd, probably not that great, no
guarantee that there will be a different outcome)
C) The Modern Erie Doctrine
i) In light of the post-Erie developments, the Erie doctrine is still somewhat unclear as
between
(a) the substance/procedure dichotomy in Erie,
(b) the outcome-determinative approach in Guaranty Trust, and
(c) the balancing of policies in Byrd.
ii) Nevertheless, the basic thrust of the approach is that when state law and federal
common law conflict,
(a) If ignoring state law would result in unequal administration of the laws and lead
to forum shopping by πs, then the state law should be used, otherwise federal law
may be used, (Guaranty Trust)
(b) unless there is a significant countervailing federal policy (Byrd).

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iii) However, the Erie-Guaranty Trust-Byrd analysis does not apply when a Federal Rule
of Civil Procedure or other federal statute is the source of the conflict between federal
and state practices:
iv) The Federal Rules of Civil Procedure are enacted pursuant to authority conferred by
the Rules Enabling Act (REA) of 1934, codified at 28 U.S.C. § 2072:
(a) The Supreme Court shall have the power to prescribe general rules of practice and
procedure and rules of evidence for cases in the United States district courts
(including proceedings before magistrate judges thereof) and courts of appeals.
(b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in
conflict with such rules shall be of no further force or effect after such rules have
taken effect.
v) Hanna v. Plumer (1965)
(a) In Hanna, in a diversity case, π served ∆ by leaving notice at ∆’s house, pursuant
to the Federal Rules. Massachusetts statute required personal service. Under the
outcome-determinative test of Guaranty Trust, the case should be dismissed (as
would happen in Massachusetts state court). Instead, the Federal Rule governs.
(b) Hanna sets out twin aims of Erie:
(1) To avoid the inequitable administration of the laws
(2) To discourage forum shopping (which may result from inequitable
administration of the laws)
(c) Citing to Byrd, the Hanna Court notes that “outcome-determination analysis was
never intended to serve as a talisman” and that conceptually any procedural
determination has the potential to prove outcome-determinative.
(d) According to Hanna, the key to the outcome-determinative test is whether ex ante
the difference between state and federal law will cause inappropriate forum
shopping—is the difference between state and federal law significant enough that
it rises to unfair discrimination against state citizens or will predictably lead to
forum shopping?
(e) Moreover, the second part of the REA states that the Federal Rules “shall not
abridge, enlarge or modify any substantive right.”
(f) Thus, when the situation is covered by a Federal Rule, the question is not the
normal Erie analysis, but whether the Advisory Committee, the Supreme Court,
and Congress all erred in their judgment that the Rule in question does not
transgress the requirements of the REA or the Constitution. This is a much higher
threshold for selecting a state law over a Federal Rule.
(g) The simple holding of Hanna is that if there is a clear and direct conflict between
a Federal Rule and the state approach, the Federal Rule should be used.
(h) But a complexity remains: what happens when the conflict is less than direct?
(1) In Ragan, which preceded Hanna, the Court held that a Kansas state rule, not
FRCP 3 should determine the time of commencement of a civil action for the
purposes of determining when the relevant statute of limitations period had
tolled.
(2) In Walker v. Armco Steel, which came after Hanna, the Court affirmed Ragan.
The Court noted that Rule 3 said only that “a civil action is commenced by
filing a complaint with the court” and does not make any reference to tolling a
state statute of limitations, much less displacing state tolling rules.

19
 (3) The Court determined that the Federal Rule was not sufficiently broad to
actually control the issue, Rule 3 and the state law could coexist and did not
cover the same ground.
(4) The Rules should be read according to their plain meaning. If, given their
plain meaning, they can coexist with the state law, then they should be
permitted to do so (i.e. the state law controls). If a conflict is inevitable, the
Federal Rule should govern.
(5) For example, a conflict was inevitable in Burlington v. Woods, where an
Alabama statute entitled πs to an additional 10% on their judgment if
appealing ∆s lost their appeals was ignored in favor of a Federal Rule that
empowered federal appellate courts to award just damages or costs to the
prevailing party at their discretion.
(6) In Gasperini v. Center for Humanities, the Court reached a compromise
between a New York state tort reform measure which instructed appellate
courts (procedural difference) to reduce a jury award of damages when the
award deviates materially from what would be reasonable compensation and
the Seventh Amendment’s reexamination clause, which holds that a jury’s
finding can only be overturned if it shocks the conscience (substantive
difference). Rather than permitting the Seventh Amendment to totally control,
the Gasperini Court required the trial judge, rather than an appellate court, to
examine (and potentially reduce) the jury award. Thus, sometimes differences
between federal and state law can be accommodated, a compromise between
the differing approaches reached.
(a) Stevens Dissent: Let the Court of Appeals do the review too.
(b) Scalia Dissent: This is all procedural, Rule 59 specifies how federal courts
should review jury verdicts, it is a procedural rule that covers the situation,
thus the decision should be easy under Hanna. Reexamining a jury verdict
according to state law disrupts the federal system by cutting against the
federal judge-jury relationship. There will still be forum shopping under
Gasperini holding because πs will favor federal courts where trial court
(rather than both trial and appellate courts) will apply the “materially
deviates” standard
(c) Ginsburg wants to accommodate as much as possible to reduce forum
shopping. Scalia wants a strict rule and if the federal law is procedural (i.e.
really regulates procedure), regardless of whether the state regards it as
procedural or substantive, it should govern, regardless of forum shopping
concern.
IV) The Pre-Trial Process
A) Pleading
i) Pleadings are the formal documents that define the nature of the case, factually and
legally. Pleadings present the claims and defenses of the parties; in the simplest cases,
they are limited to π’s complaint and ∆’s answer.
ii) Basic Pleading Principles
(a) FRCP 8(a): A pleading that states a claim for relief must contain:

20
 (1) a short and plain statement of the grounds for the court’s jurisdiction, unless
the court already has jurisdiction and the claim needs no new jurisdictional
support;
(2) a short and plain statement of the claim showing that the pleader is entitled to
relief; and
(3) a demand for the relief sought, which may include relief in the alternative or
different types of relief.
(b) The FRCP, and the pleading process they create, was explicitly intended to be
liberal (in other words, permissive, flexible, and generous).
(1) Conservative Critique: The liberal pleading paradigm permits judges to “let it
all in” and there should be a tougher initial stance so as to weed out junk
cases.
(c) Historical Approach: Conley v. Gibson
(1) Under the old standard, a complaint was not to be dismissed “unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.”
(2) In general, a complaint would only be dismissed if it was doomed to fail under
any available legal theory; if there was any set of facts consistent with the
complaint that would entitle π to relief, courts would not dismiss the
complaint. Thus, very minimalist complaints were accepted by the courts.
(d) Although πs typically do not have the burden of pleading the nonexistence of all
potential defenses, if the defense is integral to the claim (e.g. the defense of
payment in an action on debt, or truth in a slander action), π will have to plead
against the defense (e.g. non-payment and falsity, respectively).
(e) Rule 8(a)(2) requires a short and plain statement of the claim; not only does it
permit a relatively simple statement of a legal claim, it also prohibits overly
lengthy hyper-pleading.
(f) Rule 8(a)(3) requires a demand for judgment for the relief the pleader seeks.
(1) This demand is called a “prayer for relief” or an “ad damnum clause.”
(2) In default judgment, the π is rewarded whatever they demanded. Otherwise, π
is granted whatever they are legally entitled to, regardless of what they
demanded.
(3) If a π seeks special damages, damages that are unusual for the type of claim in
question and not naturally associated with such a claim, π must state those
specifically under Rule 9(g).
(g) FRCP 9(b): In alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake.
(1) Possible rationales for heightened pleading standard for fraud or mistake:
(a) Allegations can be too easily fabricated, more likely to be frivolous
otherwise
(b) Protecting reputational interests (fraud can be very damaging to
reputation)
(c) Higher stakes in fraud cases (possibility of punitive damages)
(d) Avoids in terrorem settlements given higher stakes
(h) FRCP 8(d):

21
 (1) Each allegation must be simple, concise, and direct. No technical form is
required.
(2) A party may set out two or more statements of a claim or defense alternately
or hypothetically, either in a single count or defense or in separate ones. If a
party makes alternative statements, the pleading is sufficient if any one of
them is sufficient.
(3) A party may state as many separate claims or defenses as it has, regardless of
consistency.
(i) Lawyers can be penalized for filing frivolous cases under Rule 11 (see below,
Ensuring Truthful Allegations).
(j) Under Rule 8(a)(2), a complaint does not need to allege enough facts to establish
a prima facie case, but rather just needs to present a short and plain statement of
the claims showing why π is entitled to relief. Swierkiewicz.
(k) In Swierkiewicz, the Court held that applying the evidentiary standard (of a prima
facie case) to a pleading was inappropriate and too high of a standard, and in
conflict with the Rule 8 standard.
iii) The Twiqbal Revolution
(a) Bell Atlantic v. Twombly
(1) In Twombly, the Conley v. Gibson “no set of facts” language was expressly
“retired.”
(2) Under Twombly, “enough facts to state a claim to relief that is plausible on its
face” is required.
(3) In Twombly, Baby Bells were accused of working together to prevent new
competitors from entering the market, and that they did not compete with one
another, that they were engaged in conscious parallel behavior. But the Court
found that such behavior was also consistent with rational economic activity
and obvious, lawful, alternative explanations (even if the pleadings might also
be consistent with an illegal anticompetitive agreement).
(4) The Twombly Court was very concerned with the practical consequences and
expenses of discovery. The Court was also very concerned with reducing the
risk of in terrorem settlements (a settlement made primarily to avoid the
nuisance of costly litigation & expansive discovery).
(5) The Twombly Court felt that careful case management through the discovery
process was rarely sufficient to control discovery, that district courts were not
successful in adequately controlling discovery.
(6) The Twombly Court also stated that Swierkiewicz was still good law; the goal
is not a heightened fact pleading of specifics, but something more than labels,
conclusions, and formulaic recitations of the elements of a cause of action.
(7) In Twombly, the Court wanted enough facts plead to raise a reasonable
expectation that discovery would reveal evidence of an illegal agreement;
facts that actually suggest a conspiracy took place, not merely allegations that
are consistent with a conspiracy.
(8) πs must plead enough facts to nudge their claims across the line from
conceivable to plausible.

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 (9) Dissent: This was a dramatic departure from Conley, active case management
is possible, Conley should not be retired, should use the rulemaking process
for revisions of that order.
(b) Ashcroft v. Iqbal
(1) In Iqbal, the Court confirmed that Twombly was not limited to antitrust cases,
and that the new “plausibility” approach should apply to all civil actions.
(2) A court does not need to accept as true allegations that are just legal
conclusions. Threadbare recitations of the elements of a claim, supported by
mere conclusory statements, do not suffice.
(a) In Iqbal, the statements that ∆ knew a policy was discriminatory and that
he was the principal architect of that policy were not enough—they were
too conclusory.
(3) Only a complaint that states a plausible claim for relief survives a motion to
dismiss. This is context-specific, and courts should rely on judicial experience
and common sense. But the facts must permit the court to infer more than the
mere possibility of misconduct.
(a) In Iqbal, in the wake of 9/11, the fact that the primary subjects of
investigation, arrest, and detainment were Arab Muslims and that they
were held under highly restrictive conditions was not sufficient to nudge a
claim of discrimination across the line from conceivable to plausible.
While the facts were consistent with discrimination, they were also
consistent with legal and, indeed, expected behavior.
(b) To make his claim, Iqbal’s complaint would have had to contain some
facts showing that ∆s purposefully adopted a policy of classifying post-
9/11 detainees as high interest because of their race, religion, or national
origin.
(4) The Test:
(a) Eliminate/disregard those provisions that are legal conclusions and thus
are not entitled to a presumption of truth.
(b) Considering only those remaining allegations that are entitled to a
presumption of truth, determine if the claim is plausible.
(5) Dissent: Different understanding of “plausible” in this context; here π
specifically alleged that ∆ was the architect of a specific, discriminatory plan;
there was nothing conclusory about those allegations; courts should not ignore
allegations merely because they are doubtful; a complaint should proceed
even if actual proof of the facts alleged seems improbable.
(c) Aftermath of Twiqbal
(1) Very good for ∆s, just about every ∆ considers filing a Twombly/Iqbal motion
to dismiss.
(2) Twombly and Iqbal are now among the most cited cases.
(3) Posner Critique: Unclear because there is an overlap between plausibility,
probability, and possibility.
(4) Pro-Twiqbal (Defense Lawyers’) View: Twiqbal faithfully interprets and
applies the pleading requirements of the FRCP, balancing between the
legitimate interests of πs and ∆s. We don’t want to open the floodgates for
intrusive and expensive discovery into implausible and insubstantial claims.

23
 (5) Anti-Twiqbal (Plaintiff Lawyers’) View: Twiqbal create intolerable obstacles
to πs seeking redress in federal court. Should return to the clear, well-
established, equitable system of notice pleading under Conley v. Gibson. If
discovery is such an issue, we should just develop more meaningful discovery
controls, and leave pleadings alone.
iv) Serving the Complaint
(a) Two Step Process:
(1) Did service comply with the Rules or the statute?
(2) Is the service constitutional under Due Process clause? (see above in
Jurisdiction > Personal Jurisdiction > Notice)
(b) FRCP 4(e): Unless federal law provides otherwise, an individual—other than a
minor, an incompetent person, or a person whose waiver has been filed—may be
served in a judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts of
general jurisdiction in the state where the district court is located or where
service is made; or
(2) doing any of the following:
(a) delivering a copy of the summons and of the complaint to the individual
personally;
(b) leaving a copy of each at the individual’s dwelling or usual place of abode
with someone of suitable age and discretion who resides there; or
(c) delivering a copy of each to an agent authorized by appointment or law to
receive service of process.
(c) In essence, Rule 4(e) permits using either service of process for the state in which
the federal district court sits or the state where service of process is done, or
according to the services rules put forward within 4(e)(2).
(d) Anyone over age 18 may serve process (summons + complaint), but not the π
(want to avoid ugly confrontations, and π might be incentivized to lie about
whether service was successful). Rule 4(c)(2).
(e) Service must be accomplished within 90 days of filing, although an extension
may be requested for good cause. Rule 4(m).
(f) Rule 4(e)(2)(B) requires only someone of “suitable” age and discretion—mature
enough to understand the importance of passing the process on to ∆.
(g) Corporations or other entities may be served under Rule 4(h)(1). Rule 4(h)(1)
refers back to Rule 4(e)(1) (permitting service in accordance with state law) and
provides an additional means of service:
“by delivering a copy of the summons and of the complaint to an officer, a
managing or general agent, or any other agent authorized by appointment or
by law to receive service of process and—if the agent is one authorized by
statute and the statute so requires—by also mailing a copy of each to the
defendant.”
(h) Under Rule 4(d), you can mail ∆ the summons and complaint by first-class mail
and include a form for waiving formal service of process. ∆ has a reasonable time
to complete and send back the waiver and file their answer, if they do so, they
receive more time to file their answer than otherwise provided if personally
served. If the waiver is returned unsigned (or not returned), π has to do regular

24
 service, but reasonable costs of that service will be reimbursed by ∆. Parties have
a duty to avoid unnecessary expenses of serving the summons.
(i) Rule 4(f) governs service on persons and corporations outside the U.S. in a
tripartite structure:
(1) Service can be made pursuant to the terms of an international treaty.
(2) In the absence of an international agreement,
(a) ∆s can be served in the manner ∆s are ordinarily served within those
countries for suits in those countries’ courts;
(b) ∆s can be served as directed by that country in response to a letter rogatory
(a formal letter from a court to an authority in a federal government
seeking guidance and cooperation in furtherance of some judicial task); or
(c) through personal service or by any form of mail that the clerk addresses
and sends to the individual that requires a signed receipt.
(3) By any other means not prohibited by international agreement, as the court
orders.
(j) πs can go directly to Rule 4(f)(3) without exhausting the prior steps. Rio. But
without at least doing some work and trying some alternatives, court might be
disinclined to authorize some new form of service.
(k) In Rio, the court found that due process was satisfied by an email-based scheme of
service under the Mullane standard that it be reasonably calculated to provided
notice. Although in Rio, πs also served the address where ∆’s had registered their
domain name, an attorney apparently working for the ∆, and sent an email to the
∆’s business email address. Email seemed to be the only way to directly contact ∆,
and thus was probably the best method to serve ∆. In this case, court characterized
∆ as an “international e-business scofflaw, playing hide-and-seek with the federal
court.”
v) Responding to the Complaint
(a) Once served with summons and complaint, ∆ has several options:
(1) Do nothing. (Not a good idea: default judgment under Rule 55)
(2) File one or several Rule 12(b) motions that highlight legal defects in π’s
actions (rather than address the merits of π’s allegations), prior to filing an
answer
(3) File an answer that responds to specific allegations in the complaint, asserts
affirmative defenses, asserts counterclaims, or brings in new parties (possibly
alongside 12(b) motions)
Rule 12 Motions
(b) FRCP 12(b): Every defense to a claim for relief in any pleading must be asserted
in the responsive pleading if one is required. But a party may assert the following
defenses by motion:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process; [a technical defect in the summons]
(5) insufficient service of process; [service not in compliance with Rule 4]
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19.

25
 A motion asserting any of these defenses must be made before pleading if a
responsive pleading is allowed. If a pleading sets out a claim for relief that does
not require a responsive pleading, an opposing party may assert at trial any
defense to that claim. No defense or objection is waived by joining it with one or
more other defenses or objections in a responsive motion.
(c) Some defenses in Rule 12(b) must be raised before or with others, or they cannot
be raised later. 12(b)(2) (personal jurisdiction), 12(b)(3) (venue), and 12(b)(5)
(service of process) must be raised immediately, or they are waived and cannot be
brought up again later. On the other hand, subject-matter jurisdiction may be
challenged at any time (through 12(b)(1)).
(d) Rule 12(b)(6) permits a ∆ to file a motion to dismiss the complaint for “failure to
state a claim upon which relief can be granted.” It replaced the demurrer in prior
pleading systems; it is a legal “so what” (presuming though not admitting π’s
facts are true, the 12(b)(6) motion claims that no law was violated and no remedy
may be granted).
(e) Rule 12(b)(6) can be used to challenge a claim for failing to plead enough detail
to satisfy the pleading burden under Twiqbal. It can also be used to allege
substantive or legal inadequacy, that the allegations in the complaint fail to say
anything that would render ∆ liable for a violation of the law.
(f) Rule 12(c): once all the pleadings have been submitted, either party may move for
judgment on the pleadings where, in the movant’s view, the information
contained in the pleadings alone reveals that there is no factual dispute and the
movant is entitled to judgment as a matter of law.
(g) Rule 12(e): If ∆ believes the complaint is so vague or ambiguous that ∆ cannot
reasonably prepare a response, ∆ may be entitled to a more definite statement. ∆
and the court must really not be able to tell what π is trying to assert.
(h) Rule 12(f): A motion to strike may be made when a party believes that a pleading
contains an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.
The Answer: Defenses, Admissions & Denials
(i) Under Rule 8(b), ∆ must admit or deny all factual allegations of the complaint.
(j) ∆ may also include any defenses it intends to raise, including any 12(b) defenses
that have not been waived and any affirmative defenses (such as those found in
8(c)).
(k) ∆ may also assert any counterclaims against π or claims against other parties.
(l) FRCP 8(b):
(1) In responding to a pleading, a party must:
(a) state in short and plain terms its defenses to each claim asserted against it;
and
(b) admit or deny the allegations asserted against it by an opposing party.
(2) A denial must fairly respond to the substance of the allegation.
(3) A party that intends in good faith to deny all the allegations of a pleading—
including the jurisdictional grounds—may do so by a general denial. A party
that does not intend to deny all the allegations must either specifically deny
designated allegations or generally deny all except those specifically admitted.

26
 (4) A party that intends in good faith to deny only part of an allegation must
admit the part that is true and deny the rest.
(5) A party that lacks knowledge or information sufficient to form a belief about
the truth of an allegation must so state, and the statement has the effect of a
denial.
(6) An allegation—other than one relation to the amount of damages—is admitted
if a responsive pleading is required and the allegation is not denied. If a
responsive pleading is not required, an allegation is considered denied or
avoided.
(m) ∆’s response to each allegation must be to admit it, deny it, or state that it lacks
knowledge or information sufficient to form a belief about the truth of it, and
nothing else.
vi) Ensuring Truthful Allegations
Historical Development of Rule 11
(a) Traditionally, Rule 11 only allowed sanctions if the complaint was knowingly
filed in bad faith, and the remedy was usually just to strike the pleadings. There
were very few cases where Rule 11 was employed.
(b) But, if there is a vigilant judiciary ready and willing to sanction lawyers for filing
clearly non-meritorious cases (or raising clearly non-meritorious defenses or
motions), it might:
(1) Result in better litigation results.
(2) Speed up litigation.
(3) Improve lawyer ethics.
(4) Be fairer to parties.
(5) Lawyers will treat each other better (because they know they will be penalized
for frivolous claims).
(c) In 1983, Rule 11 moved to an objective standard of what a reasonable lawyer
should do, required lawyers to certify that their claims were formed after a
reasonable inquiry and were well grounded in fact, and that their claims were
warranted by existing law or a good faith argument for the extension,
modification, or reversal of existing law. In the 1983 version of Rule 11, sanctions
were mandatory and were cost-shifting (sanctioned side pays the other side’s
attorneys’ fees).
(1) ABA Report and many other studies were very critical of the strong, 1983
Rule 11:
(a) Way too much sanctioning.
(b) An attorney should be justified in resolving pre-filing doubt in favor of his
client.
(c) A suit is not necessarily frivolous, even if you know you are unlikely to
prevail.
(d) Not all lawyers have the same intellect, skill, and resources to apply to
litigation.
(e) The demands of lawyering often do not permit the luxury of
comprehensive investigation or research prior to filing.
(f) Public criticism of lawyers doesn’t make the situation better.
(g) Frivolous claims are easily dismissed on the merits.

27
 (h) Most Rule 11 sanctions were against π lawyers.
(i) Especially high rate of sanction π in civil rights cases.
(j) Rule 11 motions destroy civility between lawyers, escalate disputes, and
make it difficult to be attacked while maintaining an appropriate working
relationship.
(k) Rule 11 motions produce even more lawyer attention and work. (satellite
litigation: lots of judicial time spent on side issue)
(l) May have a chilling effect on the zealous advocacy that the American
legal system needed and was designed for.
(d) In 1993, Rule 11 is revised to its modern form. The 1993 revision requires a
motion for Rule 11 violations to be served on the opposing party first, that cannot
be filed until 21 days later, creating a safe harbor for the opposing party to
withdraw the claim. Sanctions were also made discretionary and sanctions were
limited (from cost-shifting) to what suffices to deter repetition.
(1) However, some are trying to return to the 1983 Rule 11; for example, by the
Lawsuit Abuse Reduction Act of 2017.
(2) Scalia Dissent to Change 1993 Revision: General agreement among district
judges that Rule 11 gas a positive effect and should be retained; even if many
lawyers do not like Rule 11.
Rule 11 in Practice
(e) FRCP 11(a): Every pleading, written motion, and other paper must be signed by
at least one attorney of record in the attorney’s name—or by a party personally if
the party is unrepresented.
(f) FRCP 11(b): By presenting to the court a pleading, written motion, or other
paper—whether by signing, filing, submitting, or later advocating it—an attorney
or unrepresented party certifies that to the best of the person’s knowledge,
information, and belief, formed after an inquiry reasonable under the
circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law
or by a nonfrivolous argument for extending, modifying or reversing existing
law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable opportunity
for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or lack of
information.
(g) FRCP 11(d): This rule does not apply to disclosures and discovery requests,
responses, objections, and motions under Rules 26 through 37.
(h) FRCP 11(c):
(1) If, after notice and a reasonable opportunity to respond, the court determines
that Rule 11(b) has been violated, the court may impose an appropriate
sanction on any attorney, law firm, or party that violated the rule or is
responsible for the violation. Absent exceptional circumstances, a law firm

28
 must be held jointly responsible for a violation committed by its partner,
associate, or employee.
(2) A motion for sanctions must be made separately from any other motion and
must describe the specific conduct that allegedly violates Rule 11(b). The
motion must be served under Rule 5, but it must not be filed or presented to
the court if the challenged paper, claim, defense, contention, or denial is
withdrawn or appropriately corrected within 21 days after service or within
another time the court sets. If warranted, the court may award to the prevailing
party the reasonable expenses, including attorney’s fees, incurred for the
motion.
(3) On its own, the court may order an attorney, law firm, or party to show cause
why conduct specifically described in the order has not violated Rule 11(b).
(4) A sanction imposed under this rule must be limited to what suffices to deter
repetition of the conduct or comparable conduct by others similarly situated.
The sanction may include nonmonetary directives; an order to pay a penalty
into court; or, if imposed on motion and warranted for effective deterrence, an
order directing payment to the movant of part or all of the reasonable
attorney’s fees and other expenses directly resulting from the violation.
(5) The court must not impose a monetary sanction:
(a) against a represented party for violating Rule 11(b)(2); or
(b) on its own, unless it issued the show-cause order under Rule 11(c)(3)
before voluntary dismissal or settlement of the claims made by or against
the party that is, or whose attorneys are, to be sanctioned.
(i) There are other sources for controlling litigant conduct and ensuring truthful
allegations as well (see casebook page 557).
B) Joinder
i) Claim Joinder
(a) Key Joinder Values
(1) Efficiency for the court
(2) Party preference
(3) Consistency of decisions
(4) Core Question: How much should be packaged together in a case?
(b) Joinder Analysis
(1) May an expansion of claims or parties be done under the Rules?
(a) Arises primarily from party preference concern
(2) Do the rules require the particular expansion—must there be joinder?
(a) May arise from efficiency + consistency concerns
(3) Does joinder create jurisdictional issues for the court (subject matter
jurisdiction, commonly via supplemental jurisdiction)?
(a) Joinder rules are only pleading rules and are not concerned with whether
the court would have subject matter jurisdiction over the claims pleaded.
Even if pleading rules allow the claims to be joined, separate subject
matter jurisdiction determinations will need to be made for each claim to
see if the court has the authority to hear those claims.

29
(c) FRCP 18(a): A party asserting a claim, counterclaim, crossclaim, or third-party
claim may join, as independent or alternative claims, as many claims as it has
against an opposing party.
(1) Rule 18 places no inherent limit on expansion, regardless of whether claims
are related.
(2) Nothing in Rule 18 expressly requires the assertion of other claims.
(3) But there may be mandatory joinder under the doctrine of res judicata. Res
judicata, driven by efficiency, will preclude π from filing a subsequent suit
that is closely related to a case already adjudicated.
Counterclaims
(d) ∆ may assert and is sometimes compelled to assert claims it has against π, these
claims are called counterclaims. Counterclaims that must be asserted (or
otherwise are precluded from assertion later) are called compulsory
counterclaims. Counterclaims that may optionally be asserted (or can be asserted
later) are called permissive counterclaims. Rule 13 governs the assertion of
counterclaims:
(e) FRCP 13(a): Compulsory counterclaims.
(1) A pleading must state as a counterclaim any claim that—at the time of its
service—the pleader has against an opposing party if the claim
(a) arises out of the transaction or occurrence that is the subject matter of the
opposing party’s claim; and
(b) does not require adding another party over whom the court cannot acquire
jurisdiction.
(2) Exceptions. The pleader need not state the claim if:
(a) when the action was commenced, the claim was the subject of another
pending action; or
(b) the opposing party sued on its claim by attachment or other process that
did not establish personal jurisdiction over the pleader on that claim, and
the pleader does not assert any counterclaim under this rule.
(f) FRCP 13(b): Permissive counterclaims. A pleading may state as a counterclaim
against an opposing party any claim that is not compulsory.
(g) The criterion that a counterclaim is compulsory “if it arises out the transaction or
occurrence that is the subject matter of the opposing party’s claim” is “broadly
interpreted,” requiring only a “logical relationship” between the two claims.
“Transaction” has a flexible meaning. Heyward Robinson (citing United Artists
Corp. v. Masterpiece Productions.
(h) The point of compulsory counterclaims is to “prevent multiplicity of actions and
to achieve resolution in a single lawsuit of all disputes arising out of common
matters.” Heyward-Robinson (citing Southern Construction Co. v. Pickard).
(i) In Heyward-Robinson, a dispute over one contract bore a sufficiently “logical and
immediate” relationship to another dispute over a different contract that the
counterclaim was compulsory, because the contracts were entered into by the
same parties for the same type of work and carried on during the same period.
(j) Heyward-Robinson Concurrence (by Judge Friendly): If no counterclaim over the
other contract had been raised, it would be unfairly harsh to preclude the issue

30
 from being raised in a later lawsuit. But if a federal court deals with a non-federal
claim (just because it is a permissive counterclaim), the heavens won’t fall.
(k) If a counterclaim is compulsory, there is no jurisdictional issue because of Rule
13(a)(1)(B).
(1) But a counterclaim otherwise must be assessed for subject matter jurisdiction.
(2) Personal jurisdiction and venue, both waivable by the parties, do not need to
be reassessed for a counterclaim because πs may not simultaneously invoke
the personal jurisdiction/venue of a court and then avoid personal
jurisdiction/venue as a ∆ in a counterclaim.
Crossclaims
(l) Crossclaims are claims between coparties. Coparties are parties on the same side
of the “v” (e.g. a ∆ sues a fellow ∆ for indemnification).
(m) FRCP 13(g): A pleading may state as a crossclaim any claim by one party against
a coparty if the claim arises out of the transaction or occurrence that is the subject
matter of the original action or of a counterclaim, or if the claim relates to any
property that is the subject matter of the original action. The cross claim may
include a claim that the coparty is or may be liable to the crossclaimant for all or
part of a claim asserted in the action against the crossclaimant.
(n) Rule 13 does not make any crossclaims compulsory.
(o) Subject matter jurisdiction must still exist over crossclaims, even if they are
pleaded under Rule 13(g).
(p) Rule 13(g) applies to both ∆s and πs.
(q) For ∆s, making crossclaims compulsory would be especially unfair because they
did not choose to be part of the litigation.
(r) In general, we don’t want to compel parties on the same side to turn on one another.
ii) Permissive Party Joinder
(a) Parties may voluntarily join together as πs or a π may choose to join several
parties together as defendants, according to Rule 20.
(b) Party Motives For/Against Joinder
(1) π: Make for a better story with multiple πs, easier to show a pattern of
misconduct, strong cases can carry the weak, inflame jury to maximize
damages, strength in numbers
(2) ∆: Divide and conquer, attack weak cases, settle problematic cases, impose
costs to deter prosecution, focus on “real” story for each π
(c) FRCP 20(a):
(1) Persons may join in one action as plaintiffs if:
(a) they assert any right to relief jointly, severally, or in the alternative with
respect to or arising out of the same transaction, occurrence, or series of
transactions or occurrences; and
(b) any question of law or fact common to all plaintiffs will arise in the action.
(2) Persons—as well as a vessel, cargo, or other property subject to admiralty
process in rem—may be joined in one action as defendants if:
(a) any right to relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences; and

31
 (b) any question of law or fact common to all defendants will arise in the
action.
(3) Neither a plaintiff nor a defendant need be interested in obtaining or defending
against all the relief demanded. The court may grant judgment to one or more
plaintiffs according to their rights, and against one or more defendants
according to their liabilities.
(d) The purpose of Rule 20 is to promote trial convenience and expedite the final
determination of disputes, thereby preventing multiple lawsuits. A single trial
lessens delay, expense, and inconvenience.
(e) In United Mine Workers v. Gibbs, the Supreme Court said that the broadest
possible scope of action consistent with fairness to the parties should be
entertained. Joinder of claims, parties, and remedies is strongly encouraged.
(f) There are no hard and fast rules, transaction is a word of flexible meaning that
may comprehend a series of occurrences connected by their logical relationship.
Mosley v. General Motors.
(g) Permissive joinder has only two requirements under Rule 20(a):
(1) a right to relief must asserted by, or, against, each π or ∆ relating to or arising
out of the same transaction, occurrence, or series of transactions or
occurrences; and
(2) some question of law or fact common to all the parties must arise in the
action.
(h) In Mosley, joinder was permitted under Rule 20 when employees of General
Motors alleged injury by the same general policy of discrimination on the part of
General Motors, this system gave rise to the necessary logical connection between
the occurrences. The common question was whether the threat of a racially
discriminatory policy did, in fact, hang over the racial class.
(i) Under Rule 14, ∆s can join new ∆s, in a process known as impleader.
iii) Intervention
(a) Litigation may have a profound effect on many people who are not immediately
parties to the lawsuit. What rights should potentially affected people have to
become a part of the litigation, if the parties do not want to join them?
(b) FRCP 24(a): On timely motion, the court must permit anyone to intervene who:
(1) is given an unconditional right to intervene by a federal statute; or
(2) claims an interest relating to the property or transaction that is the subject of
the action, and is so situated that disposing of the action may as a practical
matter impair or impede the movant’s ability to protect its interest, unless
existing parties adequately represent that interest.
(c) For an example of Rule 24(a)(1) in practice, the US Attorney General may always
intervene if the constitutionality of a statute is questioned by lawsuit.
(d) Rule 24(a)(2) requires a very fact-intensive inquiry that different courts may
differ on. To assess when someone may intervene, there is a three-step process:
(1) Whether the applicant claims an interest relating to the property or transaction
which is the subject of the action. The interest is assessed pragmatically and
liberally. The interest must be a “significantly protectable interest,” but it need
not be a direct interest in the property or transaction at issue. However, the

32
 more it looks like a property right, the more likely intervention will be
granted.
(2) Whether the claimants are so situated that the disposition of the action may, as
a practical matter, impair or impede their ability to protect that interest. We
can be fairly creative in determining how the interest will be impeded. An
interest may be impaired or impeded by the stare decisis effect of the decision
or other significant, practical consequences.
(3) Whether their interest is not adequately represented by existing parties. The
burden of showing that the existing parties do not adequately represent the
interest of a would-be intervenor is minimal, requiring only a showing that it
may be inadequate.
(a) NRDC Tests: If an applicant’s interest is similar to, but not identical with,
one of the parties, a discriminating judgment is required on the
circumstances of the particular case, but he ordinarily should be allowed to
intervene unless it is clear that the party will provide adequate
representation for the absentee. While the interests of two applicants may
appear similar, there is no way to say that there is no possibility that they
will not be different and the possibility of divergence of interest need not
be great in order to satisfy the burden of the applicants.
a. Metzloff thinks this test is probably too broad and should be taken
with a grain of salt. Many courts may require a higher standard.
(e) In NRDC v. U.S. Nuclear Regulatory Commission, the NRDC sued the NRC and
a state agency to require them to prepare impact statements prior to issuing
licenses for the operation of uranium mills. Potential recipients of those licenses
sought to intervene: United Nuclear was permitted to intervene, Kerr-McGee and
others were denied because United Nuclear was thought to adequately represent
their interests. The NRDC court held that Kerr-McGee did have an interest in the
issuance and delivery of the licenses, that requiring the preparation of
environmental impact statements prior to issuance (a practical consequence of the
litigation) would interfere with that interest, and that Kerr-McGee’s interest was
not adequately represented by United Nuclear because United Nuclear already
had a license, and incumbent license-holders may be incentivized to make
licensing more difficult, thereby excluding potential competitors.
(f) Alternative View in Virginia v. Westinghouse: When the applicant has the same
ultimate objective as a party, a presumption arises that its interests are adequately
represented, against which the applicant must demonstrate adversity of interest,
collusion, or nonfeasance.
(g) Rule 24(b) allows for permissive intervention where a court “may permit anyone
to intervene” who has a claim or defense with a common question of law or fact.
(1) Key concern: permissive intervention should not unduly delay or prejudice the
adjudication of the original parties’ rights.
(h) Claims asserted by or against intervenors must satisfy subject matter jurisdiction.
C) Discovery
i) Scope of Discovery
(a) Purposes of Discovery

33
 (1) Take the trial out of the realm of surprise and maneuvering, avoid trial by
ambush.
(2) Provide fairer, just results.
(3) Provide necessary information to allow for pre-trial resolution (settlement).
(b) Current Criticism of Discovery: Discovery disputes are too contentious and
discovery lasts too long and is too expensive.
(c) Key Discovery Devices: Disclosures, Interrogatories, Document Requests,
Depositions, Physical Examinations
(d) Historically, FRCP did not closely regulate discovery and there were no inherent
limits or controls on discovery, courts had faith that the “free market” would
provide necessary limitations. Since the 1980s, numerous amendments to the
FRCP have encouraged more judicial involvement in discovery.
(e) Over time, the scope of discovery has narrowed. (Metzloff thought the pre-2015
approach was too much, likely to lead to abuse of discovery.)
(f) In practice, you can discover whatever the judge will let you discover, often
whatever the judge thinks fair.
(g) FRCP 26(b)(1): Unless otherwise limited by court order, the scope of discovery
is as follows: Parties may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense and proportional to the needs of the
case, considering the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving he issues and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible in evidence to
be discoverable.
(1) To be relevant to a party’s claim or defense, it must not be a “fishing
expedition” for possible claims or defenses.
(h) If disputes arise, parties file a motion to compel production of discovery.
ii) Limits on Discovery
(a) Because the scope of discovery is very broad, it is possible that discovery will be
expensive and intrusive. Parties may liken discovery to a “fishing expedition,”
hunting for unlawful or otherwise embarrassing conduct. To ensure discovery is
efficient, affordable, and fair, discovery must be limited so that it is not abused or
overused.
(b) FRCP 26(c): Protective Orders.
(1) A party or any person from whom discovery is sought may move for a
protective order in court where the action is pending—or as an alternative on
matters relating to a deposition, in the court for the district where the
deposition will be taken. The motion must include a certification that the
movant has in good faith conferred or attempted to confer with other affected
parties in an effort to resolve the dispute without court action. The court may,
for good cause, issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including one or
more of the following:
(a) forbidding the disclosure or discovery;

34
 (b) specifying terms, including time and place or the allocation of expenses
for the disclosure or discovery;
(c) prescribing a discovery method other than the one selected by the party
seeking discovery;
(d) forbidding inquiry into certain matters, or limiting the scope of disclosure
or discovery to certain matters;
(e) designating the persons who may be present while the discovery is
conducted;
(f) requiring that a deposition be sealed and opened only on court order;
(g) requiring that a trade secret or other confidential research, development, or
commercial information not be revealed or be revealed only in a specific
way; and
(h) requiring that the parties simultaneously file specified documents or
information in sealed envelopes, to be opened as the court directs.
(c) In Seattle Times v. Rhinehart, the Court affirmed the issuance of a protective
order preventing the Seattle Times from publishing, among other things, a list of a
New Age religious foundation’s donors, when that list was requested in
discovery. While the order seemed like a prior restraint on the Seattle Times’s
freedom to publish (i.e. precisely what the First Amendment is meant to protect
against), the members and donors of the religious foundation also had a First
Amendment right to freedom of association that may have been harmed by the
publication of the list. The Court allowed the protective order because the Seattle
Times was only able to acquire the list through discovery anyway (i.e. through the
court’s power), which courts are free to control.
(d) FRCP 26(b)(2) establishes additional limits on discovery.
(1) FRCP 26(b)(2)(C) allows discovery to be opposed if the request is
“unreasonably cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less expensive,” or if the
party already had “ample opportunity” to obtain the information.
(e) Burden and Proportionality Limits Generally
(1) Rule 45 permits discovery from nonparties on similar terms to discovery, it
protects nonparties from requests that are unduly burdensome.
(2) In Gonzales v. Google, the court considered several factors in assessing
whether a request was unduly burdensome: cost, privacy, impact on business,
trade secrets, unreasonably duplicative/cumulative, and the fact that the
request was for a nonparty under subpoena.
(3) Rule 26(b)(1) establishes a clear proportionality limit on discovery:
“proportional to the needs of the case, considering the importance of the
issues at stake in the action, the amount in controversy, the parties’
relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving he issues and whether the burden
or expense of the proposed discovery outweighs its likely benefit”
(f) Proportionality Limits on Electronic Discovery
(1) The New World of E-Discovery

35
 (a) The FRCP originally contemplated actual documents organized in files.
Lawyers would review, produce, and analyze all the documents (or
supervise someone who would).
(b) In reality, now almost all document requests are for documents in an
electronic format.
(c) Discovery now requires extensive searching of electronically stored
information (ESI).
(d) There has been an exponential leap in the quantity of material to review,
and in associated costs. The processes of review, production, and analysis
also rely increasingly on technology. Using technology to review
documents may sometimes make the process cheaper/more efficient.
(e) In 2006 and 2015, the FRCP were significantly revised with an eye toward
e-discovery:
a. The pretrial scheduling process must address ESI.
b. Using an “undue burden or cost approach,” concerns over inaccessible
ESI are expressed in Rule 26(b)(2)(B).
c. Ongoing concern over parties not maintaining or producing ESI.
d. More tolerance for loss of ESI as a result of routine, good-faith
business operations.
(2) FRCP 26(b)(2)(B): A party need not provide discovery of ESI from resources
that the party identifies as not reasonably accessible because of undue burden
or cost. On motion to compel discovery or for a protective order, the party
from whom discovery is sought must show that the information is not
reasonably accessible. If that showing is made, the court may nonetheless
order discovery if the requesting party shows good cause.
(3) Whether ESI is accessible or inaccessible largely depends on the media on
which it is stored; certain types of storage may be so inaccessible as to result
in “undue burden or cost” (as now required by the Rules). Zubulake identified
five predominate types of electronic data storage:
Active, online data: speed of access is very fast, access
frequency is high (e.g. hard drive)
Accessible Near-line data: takes milliseconds or seconds to physically
store and retrieve records (e.g. robotic library that houses
removable media, using robotic arms to access the media)
Offline storage/archives: A removable optical disk or
magnetic tape that is labeled and stored on a shelf or rack;
access requiring manual intervention, may take minutes,
hours, or even days.
Backup tapes: A sequential-access means of storage that
requires the reading of all preceding blocks of data to read
any particular block of data. May also employ some sort of
Inaccessible data compression. Restoration is typically time-consuming
and expensive.
Erased, fragmented or damaged data: Data that can be
accessed only after significant processing; files that have
been broken up and randomly scatted throughout the disk.

36
 (4) Zubulake also suggests that cost-shifting from the responding party to the
requesting party when data is inaccessible. Zubulake suggests several factors
in descending order of importance:
Potential utility 1. The extent to which the request is specifically tailored
of particular to discover relevant information.
request 2. The availability of such information from other
sources.
Potential cost of 3. Total cost of production, compared to amount in
particular controversy.
request 4. The total cost of production, compared to the
resources available to each party.
5. The relative ability of each party to control costs and
its incentive to do so.
Importance of 6. The importance of the issues at stake in the litigation.
litigation
Potential benefit 7. The relative benefits to the parties of obtaining the
to ∆ information.
(5) The Zubulake approach is now the predominant approach to evaluating who
should bear the costs associated with the retrieval and restoration of
inaccessible ESI.
(6) Zubulake is effectively embraced by Rules 26(b)(2)(B) and 26(b)(2)(C)(iii).
(7) Cost-shifting does not need to be all-or-nothing. The court can divide the
burden between the parties.
(8) Courts can also require sampling of inaccessible ESI to help inform the cost-
shifting calculus. By taking a sample of the ESI, the court may estimate the
marginal utility of restoring/producing the remaining ESI as the samples serve
as tangible evidence of what the backup tapes may have to offer. (Metzloff
really likes this idea, and is generally supportive of intelligent judicial control
of discovery.)
(a) There is typically a two-step determination for the discovery of ESI: (1) Is
the information relevant? (2) Is it unduly burdensome to produce?
Sometimes, there will be great expense in making the initial determination
of relevance. Sampling allows us to minimize that expense while still
making a fairly accurate determination.
iii) Privilege and the Work Product Doctrine
(a) Rule 26(b)(1) allows for the discovery of any “nonprivileged” matter.
(b) Federal Rule of Evidence 501 advises that federal claims should be those
established by common law, Constitution, federal statute, or other federal rule
prescribed by the Supreme Court. For state claims in federal courts (like in a
diversity case), state privileges are used (which may differ from federal
privileges).
(c) Society values the sanctity of privileged relationships highly, and understands that
free communication in the context of those relationships is paramount, more
important than the possibility of improved accuracy of litigation.
(d) Attorney-client privilege is the earliest, most basic, and widely recognized
privilege. The client is encouraged to seek legal assistance and communicate fully

37
 and frankly with the lawyer, even as to embarrassing or legally damaging matter.
The lawyer needs this information to represent the client effectively and, if
necessary, to advise the client to refrain from wrongful conduct.
(e) To assert attorney-client privilege, the elements are:
(1) the asserted holder of the privilege is or sought to become a client;
(2) the person to whom the communication was made (a) is a member of the bar
of a court, or his or her subordinate, and (b) in connection with this
communication is acting as a lawyer;
(3) the communication relates to a fact of which the attorney was informed (a) by
his client (b) without the presence of strangers (c) for the purpose of securing
primarily either (i) an opinion of law or (ii) legal services or (iii) assistance in
some legal proceeding, and (d) not for the purpose of committing a crime or
tort; and
(4) the privilege has been (a) claimed and (b) not waived by the client.
(f) In Upjohn, the Supreme Court held that communications made by employees to
counsel for the corporation, with the understanding that the purpose of the
communications is for the corporation to obtain legal advice, are protected by
attorney-client privilege.
(g) Metzloff does not like privilege (nor does he like the work product doctrine),
because they get in the way of finding out the truth, he would prefer careful
control and protection of the discovery process. Metzloff thinks the work product
doctrine mostly serves to protect big corporate ∆s, as they are the most likely to
invoke the doctrine.
(h) In Hickman v. Taylor, a tugboat overturned and sank, killing several. The attorney
for the tugboat company interviewed witnesses in anticipation of litigation. π
wanted written statements, lawyer memos, and summaries of the interviews. π
argued that the tugboat company was trying to pull a dark veil of secrecy over the
pertinent facts and that litigation would become a battle of deception rather than a
search for truth. While the Hickman Court extolled the virtues of broad, liberal
discovery and its powerful investigatory tools, the Court ultimately recognized
that there are good reasons for boundaries:
(1) Free rider problem: we don’t want one side to capitalize on the other’s
investment
(2) We don’t want lawyers to serve as witnesses
(3) We want to protect the adversarial process. Discovery wasn’t intended to
enable a learned profession to perform without its wits or with wits borrowed
from the adversary. (Justice Jackson concurrence)
(4) It would be demoralizing and lead to sharp practices
(5) And critically, the protection of work product won’t negatively impact
legitimate discovery (full and honest answers in interrogatories and
depositions should include all pertinent information)
(i) Hickman created the common law limitation on discovery called the work product
doctrine. Work product of the attorney is not automatically discoverable. In
Hickman, the work product was the result of diligent lawyering, not produced in
bad faith. There was also no showing that the subject matter of the work product
(the witnesses) weren’t available to the other sides.

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(j) Distinguishing the work product doctrine and attorney-client privilege
Work-Product Protected Attorney-Client Protected
 Protects work done by lawyer in  Protects against court-
anticipation of litigation compelled testimony of
 Not absolute lawyer
 Different levels of protection  Absolute bar against
disclosure
 Info must have been
obtained from client for
purpose of giving legal
advice
(k) Letters, memos, and emails between attorneys and clients are privileged as
attorney-client communication.
(l) Work product can be obtained if (1) the party has a substantial need for the
materials and (2) cannot, without undue hardship, obtain their substantial
equivalent by other means. However, if a court orders discovery, it must protect
against disclosure of the mental impressions, conclusions, opinions, or legal
theories of the attorney. These attorney opinions are close to absolutely protected.
(m) The work product doctrine was codified in 1970 by the FRCP at Rule 26(b)(3).
The FRCP uses the term “trial preparation materials” rather than “work product,”
but lawyers still typically refer to it as “work product.”
(n) Work product is only protected if the information was obtained in anticipation of
litigation, not merely work generated in the ordinary course of business. It is also
not enough that the subject matter of the work product relates to a subject that
might conceivably be litigated. Rather, the work must have been prepared for
litigation. Courts have different approaches:
(1) Some courts demand that the documents be prepared primarily or exclusively
to assist in litigation. Courts expect work product to be prepared in the face of
defined claims.
(2) Some courts regard documents as work product if they were prepared because
of the prospect of litigation
(o) Lawyers tend to regard everything as work product (asserting it excessively),
corporations may structure their business so that more of their documents are
regarded as work product (e.g. by having lawyers lead internal investigations).
(p) To overcome work-product protection, a requesting party must show a substantial
need for the information. For example, if the witness has died, is hard to reach, or
no longer recalls the incident clearly.
(q) Attorney-client privilege and work product protection can be waived. Inadvertent
disclosure of such material may constitute a waiver of WP/AC. In the worst case,
it may even constitute a waiver of privilege with respect to the subject matter
covered by the material generally.
(r) Parties may enter into a claw back agreement where they agree that parties are
entitled to reclaim any material that they produced that should have been withheld
based on privilege or work-product protection.

39
 (s) A quick peek agreement permits requesting parties to review a body of material in
possession of the responding party prior to a privilege review to identify the
subset of material that the requesting party is actually interested in.
(t) FRCP 26(f)(3)(D) instructs that parties should include such agreements in their
discovery plan, FRCP 16(b) permits courts to include them in pretrial scheduling
orders.
(u) In the absence of an agreement, FRCP 26(b)(5)(B) provides for a claw back
approach to resolving inadvertent disclosure. But these agreements and the FRCP
cannot change substantive law (pursuant to the REA) and do not directly affect
substantive privilege waiver law. However, FRE 502 alters substantive privilege
law accordingly.
iv) Discovery Devices
(a) Common Pattern
(1) After mandatory disclosures, interrogatories and documents propounding on
the disclosures. Then, key witnesses are deposed. Experts are brought in at the
end for their analysis of the results. “Specialty” tools (like admissions or Rule
35 exams) are used occasionally.
(2) Progress toward trial tends to stimulate fair settlements, provided there have
been adequate opportunities for mutual discovery of information.
(b) Rule 26(a): Initial Disclosures
(1) FRCP 26 sets forth a number of “required disclosures,” including any
information that you may use to support your claims and defenses. While this
initial disclosure requirement may seem onerous and inconsistent with the
adversarial process, they were so routinely requested through discovery
anyway, it made sense to just require them from the outset.
(2) FRCP 26(e)(1) requires supplementing if the disclosure was “incomplete or
incorrect” in a “material respect,” if the information has not otherwise been
made known to the adversary.
(3) Parties are meant to discuss initial disclosures at the discovery conference
provided for in FRCP 26(f).
(4) The major trend in discovery has been toward increasing judicial supervision
of the process.
(5) Rule 26(f)’s “meet and confer” requirement requires lawyers to participate in
good faith.
(6) The overall goal is to anticipate discovery issues and consider resolutions.
(c) Rule 34: Production of Documents, ESI, and Things
(1) FRCP 34(a) allows for the production of documents, ESI, and tangible things.
(2) Requests can be broad and categorical, but such requests may produce too
much information. Requests can also be narrowly tailored.
(3) A significant issue is the format of the ESI, whether it should be provided in
native format, PDF, TIFF, or some other format. Parties are instructed by
FRCP 26(f)(3)(C) to discuss the form of the ESI to be produced. If no
agreement can be reached, FRCP 34(b) instructs the requestor to specify the
form which they would prefer. The responder must always specify the form it
intends to use. If a party is dissatisfied, they may petition the court. If there is
no agreement or court order, the default is provided by FRCP 34(b)(2)(E).

40
 (4) Whether metadata of documents should be produced intact is another issue
that is meant to be discussed and agreed upon by the parties. If the metadata is
requested, it should be produced provided it is not privileged. But if a party
asks too late or has received the ESI without metadata, it may not later request
the metadata.
(5) There tends to be lots of negotiation over the production of documents and
ESI.
(6) Technology-assisted review (TAR) or computer-aided review (CAR) uses
technology to review ESI. Parties may agree on search terms and parameters.
Predictive coding relies on training of a machine learning program by a
lawyer to identify relevant documents.
(d) Rule 33: Interrogatories
(1) Interrogatories, governed by FRCP 33, are written questions to the opposing
party that must be answered under oath.
(2) There tends to be lots of objections and evasions.
(3) Lawyers usually supervise the process of answering.
(4) Parties are now limited to 25 interrogatories, unless parties and the court agree
on more.
(5) Replaced substantially by the initial mandatory disclosure process.
(6) Submitting overbroad, burdensome, or invasive interrogatories are likely to
cause the other side to submit similar interrogatories. Evasive and unhelpful
responses may also solicit likewise responses.
(e) Rule 30: Oral Depositions
(1) Parties and witnesses may be deposed, according to FRCP 30. The deponents
do not have to be parties and may be required to produce documents at the
deposition (a subpoena duces tecum under FRCP 30(b)(2)). However,
nonparties may need to be subpoenaed.
(2) FRCP 30(b)(6) requires the opposing party to appoint a knowledgeable person
(with respect to a particular concern) as a deponent.
(3) The deponent will often have an attorney prepared and present; objections
may be stated but may not interfere with the information gathering process.
(4) Limited to 10 depositions of no more than 1 day each.
(5) Tends to produce lots of gamesmanship.
(f) Rule 35: Physical or Mental Examinations
(1) FRCP 35 enables one party to request a physical or mental exam of the other.
This raises privacy (and abuse) concerns, and thus requires that the party’s
mental or physical condition be in controversy and that the Court find good
cause for the examination.
(2) The examined party has a right to receive a report of the particular exam.
(g) Discovery Offenses & Sanctions
(1) The potential for disagreement is very high, and in most complex civil cases,
there will be discovery disputes.
(2) FRCP 37(a)(1): On notice to other parties and all affected persons, a party
may move for an order compelling disclosure or discovery. The motion must
include a certification that the movant has in good faith conferred or attempted

41
 to confer with the person or party failing to make disclosure or discovery in an
effort to obtain it without court action.
(3) FRCP 37(a)(3)(A): If a party fails to make a disclosure required by Rule
26(a), any other party may move to compel disclosure and for appropriate
sanctions.
(4) FRCP 37(a)(3)(B): A party seeking discovery may move for an order
compelling an answer, designation, production, or inspection. This motion
may be made if: (i) a deponent fails to answer a question asked under Rule 30
or 31; (ii) a corporation or other entity fails to make a designation under Rule
30(b)(6) or 31(a)(4); (iii) a party fails to answer an interrogatory submitted
under Rule 33; or (iv) a party fails to respond that inspection will be
permitted—or fails to permit inspection—as requested under Rule 34.
(5) If a court determines that a party has acted inappropriately in discovery, Rule
37 orders sanctions. Typically, sanctions involve cost-shifting. Rule
37(a)(5)(A) holds that the award should normally include attorney’s fees for
the efforts undertaken on a granted motion to compel, except in a few
circumstances.
(6) FRCP 37(a)(5)(B) & (C), in the event the motion to compel is denied, require
cost shifting from the opposing party on to the movant. If the motion is
granted in part, denied in part, then the court may issue a protective order and
apportion reasonable expenses for the motion.
(7) FRCP 26(g)(1) requires that every disclosure under Rule 26(a)(1) or (a)(3)
and every discovery request, response, or objection must be signed by an
attorney (or the party if pro se), thereby certifying that to the best of the
person’s knowledge, information, and belief formed after a reasonable
inquiry: (1) with respect to a disclosure, is complete and correct at the time it
is made; and (2) with respect to a discovery request, response, or objection, (i)
consistent with the Rules and warranted by the law (or a nonfrivolous
argument for extending, modifying, reversing, or establishing law); (ii) not
interposed for any improper purpose (such as to harass or cause unnecessary
delay); and (iii) neither unreasonable nor unduly burdensome considering the
needs of the case, the importance of the issues, and prior discovery in the case.
(a) Rule 26(g)(1) is like Rule 11 for discovery.
(8) If parties persist in noncompliance, a range of sanctions are available,
including:
Sanction Rule
Order that designated facts shall be 37(b)(2)(A)(i)
taken as established for the
purposes of the action
Order preventing the disobedient 37(b)(2)(A)(ii)
party from introducing certain
documents, or supporting or
opposing designated claims or
defenses
Entry of dismissal or default 37(b)(2)(A)(v) & (vi)

42
 Striking of pleadings of the 37(b)(2)(A)(iii)
offending party
Award of reasonable expenses, 37(b)(2)(C)
including attorney fees
(9) Rule 37(b)(2)(A) also states that courts may impose “further just orders” and
courts also have inherent power to impose sanctions for discovery abuses,
further supplementing their sanctioning power under Rule 37.
(10) 28 U.S.C. § 1927: A court may impose costs, expenses, and attorneys’
fees on any attorney who so multiplies the proceedings in any case
unreasonably and vexatiously.
(11) Many litigants engage in counterproductive, obstructionist tactics during
the discovery process. They may try to draw out and inflict as much expense
on the other side as possible. They may request excessive discovery that they
do not actually need (over-discovery), or they may oppose or barely answer
any requests (stonewalling). This may seem inappropriate, but it is also
counsel’s obligation to request all relevant material and determine whether it
will be helpful. The counsel may likewise be obligated to manage the pace of
his client’s production in a manner that is to his client’s advantage, rather than
to the advantage of the client’s adversary.
(12) Litigants may also engage in “dump truck tactics,” producing massive
amounts of information in response to a discovery request, with critical
information buried deep within. But lawyers, when faced with a broad request,
should be obligated to produce everything that was requested.
(h) Preservation Obligations & Spoliation
(1) Courts have created a preservation obligation that binds parties once they have
notice of a dispute that is in litigation or likely to result in litigation. The duty
to preserve requires that documents, even harmful documents, be preserved. It
also entails a duty to predict when litigation is likely.
(2) FRCP 37(e): If electronically stored information that should have been
preserved in the anticipation or conduct of litigation is lost because a party
failed to take reasonable steps to preserve it, and it cannot be restored or
replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of information, may
order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive
another party of the information’s use in litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information
was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
(3) In Rimkus v. Cammarata, the duty to preserve was triggered by the
anticipation of litigation when ∆s sent emails to one another discussing the
final steps of a plan to preemptively sue Rimkus, at which point ∆s knew they
would be suing Rimkus within a matter of days.

43
 (4) In Zubulake IV, the trigger date was when Zubulake’s coworkers expressed,
by email and later recalled in depositions, concern about the possibility that
she might sue.
(5) In Rimkus, the court gave an adverse jury instruction that the jury may decide
whether ∆s intentionally deleted ESI to prevent their use in litigation against
Rimkus, and if so, the jury may optionally infer that the ESI would have been
adverse to the ∆s, because Rimkus was still able to obtain a significant amount
of evidence, and only some of the deleted ESI was beneficial to Rimkus (some
may even have been beneficial to ∆s).
(6) In Rimkus, the ∆’s “policy” of deleting emails after 2 weeks was not part of
their routine system of document retention. It may have been invented after
the fact, as it was only revealed after subpoenaing of another email account.
(a) The suspension of document retention and, particularly, destruction
policies is necessary as a reasonable step to preserve information in
anticipation of litigation, in the context of Rule 37(e).
(7) If the nature of the conduct leading to the spoliation was bad faith or gross
negligence, sanctions may be more severe to deter that sort of conduct. Mere
negligence, without any intent to deprive, the party claiming spoliation must
show prejudice, and sanctions should serve to cure the prejudice, rather than
punish.
(8) Rule 37(e) is inapplicable when the spoliation occurs despite the party’s
reasonable steps to preserve the information. Information may be out of a
party’s control, or destroyed by an event out of the party’s control. Whether
37(e) applies could depend on whether the party knew of (or should have
known of) such risks, took reasonable steps to protect against such risks, and
had devoted a reasonable proportion of their resources in protecting against
such risks.
(9) In Goodyear v. Haeger, the Supreme Court held that when a court exercises
its inherent authority to sanction bad-faith conduct by ordering a litigant to
pay the other side’s legal fees, the award is limited to the fees the innocent
party incurred solely because of the misconduct.
v) Expert Witnesses in the Adversarial System
(a) The U.S. system uses “party” experts hired by each side, not retained by court. As
a consequence, expert witnesses may be biased. As renowned plaintiff’s attorney
Melvin Belli put it, “if I got myself an impartial witness, I’d think I was wasting
my money.”
(b) Lawyers, judges, and juries may need to rely heavily on expert witnesses or
consultants to make sense of the case, especially as cases involve increasingly
technical and scientific subject matter and evidence.
(c) Regular, fact witnesses testify on what they did, saw, or experienced, regardless
of expertise (e.g. a surgeon testifying on what he did during an operation). Non-
testifying expert consultants advise lawyers, and their advice is usually not
discoverable. Expert witnesses, however, can analyze, give opinions, and testify
about the events in a case, even if they have no personal, direct knowledge of
those events (e.g. a doctor giving his opinion on another doctor’s work).
(d) General concerns about testifying experts:

44
 (1) They’re too expensive.
(2) There may be “conspiracies of silence” so that qualified experts are
unavailable to certain parties.
(3) There may be too many of them involved in litigation.
(4) They may not be reliable because of their partisan employment.
(5) The best experts may be disinclined from participating in the litigation process
(it may feel too dirty).
(6) Law deals with particular injured individuals, determining as best it can
whether someone else is responsible for the injury. Science is a process of
obtaining evidence to understand possible causes by ruling out particular
theories, working with large groups to try to ascertain possible casual
relationships. Hence, the processes of law and science are fundamentally
different.
(e) Sometimes, the legal system, in its reliance on party experts, can come to very
different conclusions on scientific matters than the scientific community.
(f) Huber’s Conservative Critique of Expert Witnesses:
(1) Lawyers do not settle for middle-of-the-road, cautious, moderate experts;
lawyers want their experts to provide absolute support for their positions with
absolute confidence. This is exacerbated by the notion that juries, when faced
with sharply divided scientific testimony, may be inclined to simply “split the
difference” between the two sides. [can this be resolved by good cross-
examination?]
(2) Standards for expert witnesses have vastly declined, experts are allowed to
testify outside of their expertise. The law extends equal dignity to the opinion
of charlatans and Nobel Prize winners, yet charlatans are more numerous,
cheaper, and their views more readily manipulated to litigious ends than
Nobel Prize winners.
(3) Experts understand the economics of their relationship with lawyers. Expert’s
continued employment and reemployment depends on the strength of his
support for the lawyer’s position, as lawyers are foremost interested in results.
(4) Holding experts to serious scientific standards is to affirm that experts are
indeed experts. They occupy a privileged position as the only kind of witness
permitted to reflect, opine, and pontificate on the facts. Huber suggests three
approaches for better control of experts:
(a) Judges should exercise discretion over when an expert’s testimony should
be accepted, and when he is testifying outside of his expertise. Experts
should also be allowed to be questioned on the nature of their employment
(how much they are paid, how often they testify, and for whom).
(b) State legislatures should screen experts wholesale by setting requirements
for the narrowness of their expertise and ensuring experts actually practice
in their fields (rather than work primarily as witnesses).
(c) Judges should appoint their own, nonpartisan experts, rather than allowing
parties to select which experts will appear before the courts. [This is
common in other countries. In Australia, they have a new technique called
“hot tubbing” where all experts testify together and openly discuss the
main issues.]

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(g) Modern Approach to Expert Disclosure: Rule 26(a)(2)
(1) Historically, discovery of experts was permitted only by interrogatory and,
with the courts permission, deposition. Expert work was often thought of as
similar to attorney work product: experts do not know any facts of the case;
the other side should get their own expert analysis.
(2) Now Rule 26(a)(2) governs the disclosure of expert testimony. Expert
witnesses must submit an expert report containing a complete statement of all
opinions to be expressed and the basis and reasons therefore, as well as the
qualifications and compensation of the experts.
(3) But Rules 26(b)(4)(B) & (C) protect draft reports and conversations between
the expert and the lawyer as work product under Rule 26(b)(3).
(h) Modern Approach to Ensuring Expertise: FRE 702 and Daubert
(1) Historically, the Frye test governed whether an expert’s testimony would be
acceptable. The Frye test required that the scientific techniques employed by
the expert be “generally accepted” by the relevant scientific community,
typically looking to see whether the techniques appeared in peer-reviewed
journals. The drawback of the Frye test was that it ruled out valid but novel
techniques that had not yet won widespread acceptance. In addition, people in
increasingly diverse fields began developing professional organizations and
journals (e.g. a psychic might publish a paper in a journal for psychics).
(2) Then, in 1972, Congress established the Federal Rules of Evidence, which
made no mention of the general acceptance or Frye test.
(3) Federal Rule of Evidence 702: A witness who is qualified as an expert by
knowledge, skill, experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of
the case.
(4) In Daubert v. Merrell Dow, the “general acceptance” standard from Frye was
rejected as inconsistent with Rule 702, a singular focus on “general
acceptance” was inappropriate in light of the language of the Rule.
(5) Daubert instructs that:
(a) The judge should serve as gatekeeper to ensure the validity of scientific
expert testimony.
(b) The testimony should proceed from “scientific knowledge,” it must rest on
a reliable foundation. A conclusion will qualify as scientific knowledge if
its proponent can demonstrate that it is the product of sound scientific
methodology. Daubert defined the scientific methodology as the process
of formulating hypotheses and conducting experiments to prove or falsify
hypothesis, a set of factors help to determine whether the criteria is met:
a. Whether the theory or technique employed by the expert is generally
accepted in the scientific community;
b. whether it has been subjected to peer review and publication;

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 c. whether it can be and has been tested;
d. whether the known or potential rate of error is acceptable;
e. whether there were appropriate controls and standards; and
f. whether the research was conducted independent of the particular
litigation or dependent on an intention to provide the proposed
testimony.
(c) The scientific knowledge should assist the trier of fact in understanding
the evidence or determining a fact at issue. The judge should weigh the
probative value of the testimony. The testimony must be relevant to the
task at hand. There must be a valid scientific connection to the pertinent
injury.
(6) Daubert says that the Federal Rules of Evidence struck a balance between
concerns that there would be a “free-for-all” of expert testimony that would
lead to confused juries (juries are not stupid, and vigorous cross-examination
and experts on both sides will help to resolve the issue), and that judges might
possibly exclude quality experts.
(7) Daubert dissent: The test might not make sense, federal judges should not be
obligated or authorized to become amateur scientists in order to perform the
gatekeeping role.
(8) Kumho Tire extended Daubert’s view of the judge as a gatekeeper from
scientific to technical matters. Rule 702 applies to scientific, technical, or
other specialized knowledge. And the line between scientific and technical
knowledge is not always clear. The factors in Daubert, whether a theory had
been tested, whether the idea was subject to peer review or publication, the
rate of error in the technique, and general acceptance of the technique, could
be extended to technical testimony. Kumho Tire also recognized that the
factors were helpful but not exhaustive.
(9) In Kumho Tire, when the expert concluded that a defect caused a product
failure because he could not find evidence of other causes, the expert’s
testimony was excluded, even though his method of inspecting the product
was generally accepted and the expert was well qualified.
(10) In Johnson v. Arkema, π alleged he suffered from permanent injury
following the inhalation of chemical vapors, π’s expert claimed that the vapors
can cause the sort of long-term injury suffered by π. The court excluded the
expert’s testimony for failing to bridge the analytical gap between exposure to
this particular chemical and other irritants. Courts are free to reject the mere
ipse dixit of an expert.
(a) Dissent: The doctor was an eminent authority on the relevant subject, and
everyone agrees that the class of chemicals can cause at least some acute
injuries, thus it is unsurprising that the long-term effects of inhaling the
chemical have never been tested (no one would submit to such a test).
D) Summary Judgment
i) FRCP 56: Summary Judgment
(a) A party may move for summary judgment, identifying each claim or defense—or
the part of each claim or defense—on which summary judgment is sought. The
court shall grant summary judgment if the movant shows that there is no genuine

47
 dispute as to any material fact and the movant is entitled to judgment as a matter
of law. The court should state on the record the reasons for granting or denying
the motion.
(b) Timing. Unless a different time is set by local rule or the court orders otherwise, a
party may file a motion for summary judgment at any time until 30 days after the
close of all discovery.
(c) Procedure.
(1) A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by:
(a) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(b) showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.
(2) A party may object that the material cited to support or dispute a fact cannot
be presented in a form that would be admissible in evidence.
ii) Summary judgment is a screening device to provide some assurance that only viable
cases go to trial. Summary judgment is a means for the court to test the merits or
“evidentiary sufficiency” of the claim. Motions to dismiss under Rule 12(b)(6) (which
presume that all allegations are true) test the legal sufficiency of the claim.
iii) Summary judgment occurs right before trial. This is also the typical point for settling
cases, as the risk of trial creates pressure to settle.
iv) The purpose of trial is to resolve factual disputes between the parties. If there is no
genuine dispute as to any material fact, then there is nothing for the trial/jury to
resolve, and resolution becomes a matter of applying the relevant law to the facts,
which the judge can do.
v) Summary judgment is not meant to be a “mini-trial,” rather it consists of written
filings explaining why there is no genuine, material factual dispute based on
information potentially admissible at trial, including uncontroverted evidence
(documents obtained during discovery) and affidavits from supporting witnesses.
vi) Summary judgment motions are usually filed at the end of discovery, because of Rule
56(d), which provides that when facts are unavailable to the nonmovant, if the
nonmovant shows by affidavit or declaration that, for specified reasons, it cannot
present facts essential to justify its opposition, the court may defer/deny the motion or
allow additional time for discovery.
vii) For summary judgment to be granted, the movant must show that there is no genuine
dispute as to any material fact.
(a) A dispute is genuine if it is a real conflict.
(b) A fact is material if it has a determinative impact on the outcome of the case, thus
materiality of a fact in a case depends on the applicable legal standards
controlling the claim.
viii) Rationale for Summary Judgment
(a) Key complaint: Why not let all cases go to trial, and let the π have his day in
court? The jury can identify non-meritorious cases.

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 (b) Trial can generate adverse publicity for ∆s.
(c) Trial (and trial prep) imposes significant expense on ∆s.
(d) There is some risk of aberrational jury verdicts.
(e) Without a cheap way out of an expensive trial, the risk of nuisance value
settlements is increased (settlements at just less than the cost of trial).
(f) Trial is expensive for the public, and may be burdensome on members of the jury.
ix) While summary judgment is available to both parties, it is a tool overwhelmingly
used by ∆s.
x) Historically, Adickes held that the burden of showing lack of factual dispute rested on
the movant for summary judgment. In other words, the movant must present enough
evidence to affirmatively establish a lack of factual dispute; the movant must
foreclose the possibility of dispute.
(a) In Adickes, the movant failed to present evidence that foreclosed the possibility of
a theory, consistent with the nonmovant’s evidence, that would have entitled the
nonmovant to relief, thus the motion was denied. In the Adickes era, summary
judgment would very rarely be granted (i.e. very pro-π). The Second Circuit even
employed a “slightest doubt” test, where the motion would be denied if there was
the slightest doubt that there might be a genuine, material factual dispute.
(b) In Celotex v. Catrett, the Supreme Court nudged the courts toward more
willingness to grant summary judgment. The Court said that Adickes should not
be read as requiring the movant to prove a negative (effectively retiring the
language in Adickes, like what Twiqbal did to Conley).
xi) In summary judgment, the facts should be viewed in the light most favorable to the
nonmovant (their evidence should be trusted) and any reasonable factual inferences
should be drawn in the nonmovant’s favor.
xii) In Celotex, ∆ moved for summary judgment claiming that π lacked admissible
evidence to support an element of π’s claim (but ∆ did not provide evidence showing
that the π’s claims were false). The Court affirmed summary judgment for the ∆.
xiii) Under Celotex, if the movant does not bear the burden of proof at trial, then the
movant only needs to aver an absence of evidence in support of the nonmovant’s
case.
xiv) Celotex Dissent: ∆ should still have a real burden to establish the inadequacy of
π’s evidence, and if there really is no evidence, ∆ must demonstrate this by reviewing
the discovery record.
xv) In Anderson v. Liberty Lobby, the Court held that the substantive evidentiary standard
of proof was the standard by which a summary judgment motion should be judged.
The summary judgment inquiry should mirror the standard for Judgment as a Matter
of Law under Rule 50(a). The trial judge must bear in mind the quantity and quality
of the proof under the substantive legal standard. If the standard of proof for the π is
clear and convincing evidence, then that should be the standard of proof against
which π’s evidence is assessed when ∆ moves for summary judgment (i.e. π’s
evidence would need to meet clear and convincing standard)—if the evidence is
merely colorable or not significantly probative, then summary judgment may be
granted.
(a) Critique: This forces judges to become jurors.

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xvi) Key Question Under Anderson: Could a jury reasonably find either that the π
proved his case by the quality and quantity of evidence required by the law or that he
did not? In a particular case, could a reasonable, fair-minded jury return a verdict for
the nonmovant on the admissible evidence?
xvii) In Matsushita v. Zenith, the Court found that there was insufficient admissible
evidence to infer a conspiracy as required by antitrust law. Once the ∆ has met its
burden under Rule 56, π must do more than show there is some doubt possible under
the material facts; in this case, the π must present evidence that tends to exclude the
possibility of legitimate, independent business, evidence that reasonably supports an
inference of conspiracy. If the facts render the claim implausible, summary judgment
should be granted.

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