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Exam Approach:
1.) State the rule
2.) State the facts
3.) Come to a conclusion
**PERSONAL JURISDICTION**
Can we sue the defendant in state X (geographic question)
● Exercised over the parties
o In personam → court has power over the def herself (has some connection to forum)
o In rem & QIR → court has power over the defs property
* Checklis t:
1. What does the statute say?
a. If attachment statute → then in rem or QIR (means court can attach property the def owns of claims to
own)
i. Requires to attach and seize at outset
1. HYPO: Def owns property and uses it as a jurisdictional predicate (attachment statute);
answer: state the rule = the court can attach property the D owns or claims to own;
apply the fact = here the D owns the property; conclusion = therefore the statute is met
b. In personam
i. Ok under the statute, if served with process in the forum (here the guy is); therefore ____
c. NRMA (non‐resident motorist act) → going after someone not domiciled in the forum
i. In personam and appointed an agent as a service of process
ii. Hess v. Palowski
d. Long‐arm → gives in personam over non‐residents
i. CA type – exercise PJ, to the full extent of the constitution
ii. Laundry‐list – list of stuff that the D can do to subject him to PJ in the forum
1. Split btwn Illinois and NY (tortious act or omission)
2. Constitutional analysis?
a. In rem, QIR → ok, if D’s contacts with the forum satisfy the Shoe test ( Shaffer )
b. In personam:
i. Is there a traditional basis (domiciled or served with process in the forum)
1. If so, address the Burnam split: 4 justices say service good enough but 4 say that have to
do Shoe
ii. If there is no traditional basis → Shoe (3 steps):
1. Is there a relevant contact btwn D and the forum?
a. 2 factors to get relevant contact:
i. Purposefully availment (D must reach out to the forum)
ii. Foreseeability (must be foreseeable that the D could get sued in the
forum)
2. Assess relatedness – does the plaintiff’s claim arise from the def’s contact?
a. If yes → then specific jurisdiction (have to assess fairness factors)
b. If no → then general jurisdiction (if def is at home)
i. Human at home where domiciled
ii. Corp at home where incorporated and at its nerve center (PPB)
Civ Pro 2
3. Have to access whether PJ is fair:
a. This step ONLY APPLIES IN SPECIFIC JURISDICTION (footnote in Dymler )
b. 5 Fairness Factors (no particular weight):
i. (1) Burden on the def
ii. (2) The forum state’s interests ( McGee )
iii. (3) The plaintiff’s interests (consider if plaintiff badly injured and hard to
travel)
iv. (4) Efficiency (maybe where witnesses are) – not determinative
v. (5) Shared substantive policies of the state
PERSONAL JURISDICTION DETAILS:
I. In personam:
a. Either general or specific:
i. General = def can be sued in this forum on a claim that arose anywhere
i. Exercises only if def had significant ties w/ the forum
ii. Specific = the def is being sued for a claim that arose in the forum
i. Relatedness ‐ Does this claim arise from the def’s conduct in the state?
a. Yes → specific
b. No → general
b. Constitutional limit:
i. Pennoyer v. Neff ( 1878) → 4 traditional basis of in personam:
i. The def is served w/ process in the forum (general jurisdiction)
ii. The def’s agent is served in the forum
iii. Def is domiciled in the forum (general jurisdiction)
iv. The def consents to PJ
ii. Hess v. Pawloski (1927) → Supreme Court expanded PJ by expanding trad. Basis
i. Consistent w/ Pennoyer but extends consent to implied consent
a. Facts = PA def drives car to MA (crash in MA); MA plaintiff wants to sue Hess
(def) in MA (who left state before service w/ process)
b. Holding = Upheld jurisdiction b/c of non‐resident motorist act
c. Non‐resident motorist act = if you drive in our state, you consent to PJ (specific
jurisdiction) & appoint a state official as your agent for service of process
iii. International Shoe Co. v. Washington (1945 ) → Shoe Test
i. The court has jurisdiction if the def has such minimum contacts w/ the forum so that
exercise of jurisdiction does not offend traditional notions of fair play and substantial
justice
ii. Shoe test: → can serve process on def outside the forum if meet Shoe test (alternative
to the trad basis)
a. Minimum contacts
b. Fairness
iv. McGee v. International Life Ins. Co. (1957)
i. Holding = court upholds jurisdiction in CA over a TX insurance company even though
only one contact
ii. Reasoning =
a. The def solicited that CA business
b. CA has an interest in protecting its people from insurance fraud
Civ Pro 3
v. Hanson v. Denckla (1958) → Purposeful availment
i. Rule → to be a contract, it must result from the def’s purposeful availment of the forum
a. Def must reach out to the forum (can’t be just an accident)
b. Facts = a PA woman formed a trust fund w/ a Delaware bank & then moved to
Florida (where she continued to receive money from and send directions to the
Delaware bank; after she died her children sued each other;
c. Holding = Florida didn’t have jurisdiction over the Delaware bank
i. Reasoning = the Delaware bank’s contacts w/ Florida were reactive to
what its client did (the bank itself did not reach out to Florida for some
benefit) – therefore no relevant contact w/ the state
vi. World Wide Volkswagen ( 1980) → it must be foreseeable that the def could get sued in the
forum
i. If no purposeful availment, then no contact
ii. It is not a matter of foreseeing the product would get to the forum – it must be
foreseeable that the def could get sued (‘haled into court’) in the forum
a. Facts = Family (from NY) decides to move to Arizona (bought a new Audi for the
drive); involved in bad car wreck in Oklahoma – sued in Oklahoma (allege the
car was defectively designed)
b. Holding = Supreme Court said no PJ over NY retailer and NY distributor (def) b/c
they didn’t purposefully avail themselves of Oklahoma
i. Reasoning = the only reason why the car got to Oklahoma is b/c the
def’s drove it there
ii. Same as in Hanson
iii. 5 Fairness factors :
a. (1) inconvenience for the def and her witness (in having to travel to the forum)
b. (2) forum state’s interest (seen in McGee)
c. (3) Plaintiff’s interest in litigating in the forum
d. (4) The legal system’s interest in efficiency
e. (5) Shared substantive policies of the state
vii. Calder v. Jones (1984)
i. Demonstrates that the def can have a relevant contact under Shoe w/o entering the
forum (physically the def doesn’t have to go to the forum)
a. Facts = Writer and editor citizens of Florida; article written & edited in Florida;
article was published and distributed in CA; article impugned the
professionalism of an actress in CA
b. Holding = court upheld jurisdiction in CA against the editor and writer of an
allegedly defamatory article about a CA citizen
i. Reasoning = article drawn from CA sources – CA is the focal point of
both the story and of the harm suffered
viii. Walden v. Fiore (2014)
i. Calder cause & effect test was rejected
ii. Facts = plaintiffs (professional gamblers) had cash seized by police in airport in ATL;
plaintiffs lived in NV; def seized money saying it was connected to illegal drug activity;
sued in Nevada alleging that jurisdiction was proper b/c the brunt of def’s action was
suffered there
iii. Holding = Nevada could not exercise PJ over the def b/c lacked contacts w/ Nevada
a. Reasoning = The due process clause of the 14 th Amendment requires that a
non‐resident def have substantial connection w/ the state in which he is sued
(connection must come from the contracts the def himself creates) – all of def’s
conduct occurred in GA
Civ Pro 4
i. Calder requires that D form a contact w/ the forum
ii. PJ not met b/c the plaintiff has a relationship (such as residence w/ the
forum)
iii. The plaintiffs lacked access to their money in NV not b/c def did
anything there, but b/c that was where they chose to live
ix. Burger King Corp. v. Rudzewicz (1985) → established Shoe consists of two parts,
(1) Contact, and (2) fairness
i. To show jurisdiction is unfair → D must show that defending the case is so gravely
difficult and inconvenient that you are at a severe disadvantage in the litigation
a. Relative wealth of the parties is irrelevant
ii. Must have a relevant contact btwn def and forum before fairness becomes relevant*
iii. Facts = BK sued two Michigan men who ran a franchise in Michigan; BK headquartered
in Miami and filed suit there
iv. Holding = Court upheld jurisdiction
v. Reasoning = two Michigan franchisees purposefully availed themselves of Florida by
reaching out to BK to enter a 20 –year relationship governed by Florida law; uses 5
fairness factors from World‐Wide
x. Kulko v. Superior Court (1978) → declined jurisdiction saying that an interest in family harmony
was furthered by refusing jurisdiction
i. Using 5 th fairness factor – shared substantive policies of the states)
xi. Stream of Commerce Cases:
i. Scenario: Def manufacturers component in State X; Def sells it to a manufacturer in
State Y; finished product sold to customers in State Z and the component defective
(injured plaintiff is State Z)
ii. Asahi Metal Indus. Co. v. Superior Court of CA (1987) – 4/4/1 split of authority
a. Brennan theory → relevant contact if def put the product into stream of
commerce and could reasonably anticipate that it would be used in State Z
b. O’Connor theory → no contact unless def had an intent to serve the market in
State Z (had to target State Z in some way – ex : advertising, providing customer
service)
iii. McIntyre Machinery, LTD v. Nicastro (2011) – 4/2/3 split
a. 4 (Kennedy) – basically adopt O’Connor theory → no jurisdiction in NJ b/c no
intent to serve the market in NJ (while the company targeted US, no purposeful
availment so no contact)
b. 3 (Ginsburg) – would have upheld jurisdiction under the Brennan theory → if
you target the US and knew the product would get into specific states, then you
are subject to jurisdiction
c. Facts = English company manufacturers metal cutting machine; company sells
the machine in Ohio (only reaches out to Ohio); Ohio company then sells those
products to states all around the U.S. (including NJ); plaintiff badly injured and
wants to sue British company in NJ
d. Holding = No PJ in NJ
c. Jurisdiction Based on Presence
i. Burnham v. Superior Court (1990) → 4/4 split over whether presence when served (traditional
basis for Pennoyer) is sufficient or if you have to do Shoe
i. 4 (Scalia) → presence when served is good by itself (historical pedigree)
a. Reasoning: Court said in Shoe that its new test would apply “if the def were not
present in the forum when served with process.”
ii. 4 (Brennan) → apply Shoe in every case
Civ Pro 5
a. Reasoning – Def had visited CA for less than a week but conclude that def had
gotten enough benefits from the state to make him amendable to general
jurisdiction
iii. Facts = NJ man sued in CA and he was served w/ process in CA (general in personam
jurisdiction)
d. General and Specific Jurisdiction
i. General
i. Goodyear Dunlop Tires Operations (2011) → Def must not only have continuous and
systematic ties w/ the forum but also must be “at home” there
a. Defendant must have some physical presence in the forum
b. Must be “at home” there
i. A corporation is at home where domiciled
ii. A corporation is at home where incorporated and where it has its
principal place of business (PPB)
ii. Daimler AG v. Bauman ( 2014) → court restated what it said in Goodyear
a. In footnote → When D is at home in the forum, general jurisdiction will be
upheld w/o consideration of reasonableness or of the “fairness factors”
e. Internet cases:
i. Use Calder to uphold jurisdiction if D sends an email to P in another state intending to cause P to
suffer emotional distress
ii. Possibility of adapting Shoe
II. Statutory Provisions for In Personam Jurisdiction:
a. Every state has statute that allows PJ based on the traditional basis
b. Every state has a non‐resident motorist act (specific jurisdiction)
c. Long‐arm statute
i. Expand jurisdiction
ii. Two types:
i. California type → one sentence long; provides that the courts of that state have
jurisdiction to the full extent allowed by the Constitution
a. In these states, the statutory analysis for PJ is the same as the constitutional test
ii. Laundry list type → lists various things a nonresident def can do to subject herself to PJ
in the forum
a. Usually specific jurisdiction statutes (nonresident is being sued for something
she did or an effect she caused in the forum)
b. Typical ex :
i. D committed a tortious act in the forum
ii. D contracted to supply goods or services in the forum
iii. D transacted business in the forum
1. Substantial vs. any business in the forum*
iv. D owns or uses real property (land) in the forum
c. Critical to read carefully → bid difference btwn requiring that D committed a
“tort” in the forum or requiring that she committed a “tortious act or omission”
in the forum
i. NY – when manufactured
1. (adopted in Feathers v. McLucas (1968))
ii. Illinois – not tortious until P was injured
1. (adopted in Gray v. American Radiator & Standard Sanitary
Corp . (1961))
d. Under FRCP 4(k)(1)(A), in civil cases, fed court can exercise PJ only if a state court in the state in which
they sit could exercise personal jurisdiction (ex: case in federal court in VA – VA statutes on PJ apply)
Civ Pro 6
III. In Rem and QIR Jurisdiction
a. When P cannot sue in personam ( b/c maybe jurisdiction would be constitutional but the forum’s
long‐arm statute doesn’t apply), but D has property in the forum, P will try to sue in rem or WIR
i. Real property (land)
ii. Tangible property (like a wristwatch or car)
iii. Intangible property (like a brokerage account or a copyright)
b. QIR‐1 → use property as the jurisdictional predicate (point of litigation is to determine who owns that
property)
c. QIR‐2 → claim against D is for anything other than the ownership of the res
i. Ex : Mitchell v. Neff (Neff’s land was the res on which jurisdiction was based & the claim against
Neff had nothing to do with who owned the property)
d. Shaffer v. Heitner (1977) → court addressed the impact of Shoe on in rem and QIR jurisdiction
i. The court never expressly overruled Pennoyer
ii. Holding = DE could not have jurisdiction simply by seizing property owned by the defs in DE;
there must be a showing that the def’s contacts with DE satisfy the Shoe standard
i. D herself – not simply her property – must hae such contacts w/ the forum that the
exercise of jurisdiction doesn’t offend traditional notions of fair play and substantial
justice
ii. *The constitutional test for in rem and QIR is the same as the constitutional test for in
personam jurisdiction
e. Court must seize the res when the case begins (even if D’s contacts w/ the forum satisfy Shoe)
f. Divorce Proceedings:
i. Not a proceeding in personam
i. If divorce were in personam proceeding, one spouse could prevent the other from
getting a divorce by moving to another state
ii. It is in everyone’s interest to allow the resident spouse to maintain the case in the forum
ii. Litigation to determine the interests of persons (the spouses) in the “thing” of marriage (in
nature of in rem or QIR‐1 case)
i. Publication notice will suffice
iii. If beyond determination of status (ex: alimony and child support unable to have in rem)
g. Approach for in rem & QIR cases:
i. Find a state statute (attachment statute to seize property the D owns or claims to own) to cover
in rem/QIR2
ii. Is PJ constitutional → apply test from Shaffer v. Heitner (1977) → D must meet Shoe test
Civ Pro 7
**NOTICE OF SUIT** →
RULE 4
I. Service of Process – Federal Rule 4
a. Process = consists of a summons and a copy of the complaint
i. D must respond within 21 days (or risk default)
b. Who? = Service can be effected by an non‐party who is at least 18 years old → Rule 4(c)(2)
c. Timing = Process must be served within 120 days after filing the complaint
i. If you do not, the court will dismiss the case w/o prejudice, unless you can show good cause for
that delay → R ule 4(m)
d. Geographic limit → R
ule 4(k)(1)
i. Can serve process throughout the state in which the federal court sits
ii. Can serve process outside the forum state if the state court allows for service of process out of
the state (usually under the long‐arm statute)
iii. Bulge rule = can serve within a 100 miles only when a party is being joined through 14
(impleader) or 19 (necessary party).
e. How? =
i. Service of Process on a Human being → R
ule 4(e)(2) – 3 alternative methods for service of
process:
1. Personal Service – can be done anywhere in the forum state
2. Substitutive service – must be at D’s dwelling or usual abode; must serve someone of
usual age or discretion who resides there (no age specified)
3. Agent service – must be appointed by law (like the non‐resident motorist act)
ii. Rule 4(e)(1) – the court may also use any method for service of process that is allowed by state
law of the state where the federal court sits OR in which service was effected
1. Ex: service by registered mail
iii. Service of process on a business → 4
(h)(1)
1. Serve an offer or a managing or general agent
2. Rule 4(e)(1) applies
f. Waiver of service → 4
(d)
i. Allows waiver by mail (NOT service by mail)
ii. Send process and waiver form to def with a self‐addressed stamped envelope
1. If signed and sends back then formal service waived
a. Has more time (within 60 days to respond after it was mailed to you – rather
than ordinarily 21 days after service of process)
b. By waiving formal service, doesn’t waive any defenses (can still say no to PJ, etc)
2. If not returned in 30 days w/o good reason then does not waive formal service (D will
have to pay for the service)
g. When member of a class – you need notice of what is happening
II. Constitutional Standard for Notice :
a. Mullane v. Central Hanover Bank → n
otice must be reasonably calculated under the circumstances to
apprise the def of the suit
b. Notice can be constitutional even if the D didn’t get it:
i. Dousenberry (2002) → can be constitutional even if the D didn’t get actual notice (due process
doesn’t require actual notice)
ii. Jones v. Flowers (2006) → usually it is not required that D actually receive the service; but if P is
aware that D has not, due process may require that P make further effort to ensure notice
c. Methods under Rule 4 are all constitutional
d. Notice by publication → usually in the newspaper (may be ok but must be last resort)
Civ Pro 8
**SUBJECT MATTER JURISDICTION (SMJ)**
● SMJ over the case (PJ over the parties)
● State courts can basically hear anything – a few fed question cases MUST got to federal courts (bankruptcy,
patent infringement, etc.)
● Federal court won’t hear cases of divorce, annulment, child custody and probate
● You cannot consent to SMJ
● How to get into fed court → Diversity of citizenship & federal question
I. Diversity of Citizenship →
a. §1332(a)(1 ) – 2 requirements for a diversity of citizenship case:
i. (1) Case must be btwn citizens of different states
ii. (2) Amount in controversy must exceed $75,000
b. Citizens of different states – 4 rules:
i. The complete diversity rule → no diversity if any plaintiff is the citizen of the same state as any
def
i. Strawbridge v. Curtiss (1806)
ii. *All plaintiffs must be of diverse citizenship from all defendants:
1. Plaintiffs can be co‐citizens w/ each other
2. Defs can be co‐citizens with each other
ii. Citizenship of a human – a U.S. citizen is a citizen of the state where domiciled
i. Human can have only 1 domicile
ii. To establish a new domicile, you must:
1. Presence in the new state
2. Must form the intent to make that your permanent home
iii. Citizenship of a corporation → § 1332(c)(1)
i. Citizen of the:
1. Every state where incorporated and;
2. The state where it has its PPB
i. Hertz Corp. v. Friend (2010) – PPB is where the mangers “direct, control
and coordinate corporate activities” (the ‘nerve center’) – where the
managers call the shot (usually the headquarters)
ii. Can be citizen of 2 states at a time → complete diversity rule applies
iv. Citizenship of an unincorporated business (ex: LLCs) → no statute on this (all case law):
i. Look to the citizenship of all members of the business (all the partners in the
partnership)
1. Ex: Suppose law firm (partners citizens of 18 states = means partnership is
citizen of 18 states)
2. Ex: Labor unions (often unable to satisfy the complete diversity rule – but can be
sued in state court or fed court has jurisdiction if it invokes FQ)
ii. The state of formation & the state of PPB are irrelevant
v. When representatives sue on behalf of others:
i. §1332(c)(2) – suit on behalf of decedents, minors, and incompetents → look @ the
citizenship of the person being represented, not the citizenship of the representative
(not the guardian, executor, etc.)
ii. Class action suit – look @ the citizenship of the rep only, not the citizenship of those
being represented
c. Amount in controversy (3 rules):
i. The amount must exceed $75,000
i. Claim must be for at least $75,000.01
Civ Pro 9
ii. Not counting interest on the claim or costs
ii. Plaintiff’s claim governs unless it is clear to a legal certainty that the amount does not exceed
$75,000 ( ex : if there were a statutory cap on damages)
i. Plaintiff’s ultimate recovery is irrelevant to SMJ
iii. Aggregation:
i. Where add multiple claims to get over $75,000
ii. One P can aggregate all the claims she wants against one D (no limit on the # of claims –
claims don’t have to be related at all factually and legally)
iii. Cannot aggregate claims btwn multiple parties (ex: plaintiffs sued 2 defs)
iv. For joint‐claim – use the total value of the claim (the # of parties is irrelevant)
1. Ex : The fact that there are multiple defendants does not matter. b/c a joint
claim – any of the def can be held liable for the full amount (think of joint
tortfeasors) → look to the value of the claim
II. Alienage Jurisdiction
a. §1332(a)(2) – if domiciled in state suing in, then you don’t have alienage
i. To invoke alienage jurisdiction: Case must be twn a citizen of a state (U.S.) and an alien (non‐U.S.
citizen)
ii. Requires the same amount in controversy as a diversity jurisdiction
iii. Does not matter if the alien is plaintiff or def
iv. §1332(e) – includes federal enclaves (such as D.C. and Puerto Rico) → even though they are not
states, they count as such for diversity jurisdiction
v. U.S. citizen establishing domicile in foreign country:
i. Doesn’t make her a citizen of that country
ii. U.S. citizens domiciled abroad fall through a “hole” in the diversity and alienage statutes
→ cannot be used in federal court under diversity‐of‐citizenship or alienage jurisdiction
(can get in under FQ)
vi. Aliens who are admitted to the US for permanent residence:
i. Permanent residents who is domiciled in the same state a re treated as aliens and not as
citizens of the state of the U.S.
1. Ex: case ‐ alien v. alien (no alienage – no diversity)
2. Ex: case – citizen of state of US v. alien (no diversity jurisdiction b/c def is not a
citizen of a state of the US)
vii. Corporation
i. Jurisdiction and Venue Clarification Act of 2011 – amended §1332(c)(1) to add that a
corporation is deemed a citizen of every state (of the U.S.) and foreign country in which
it is incorporated, as well as of the state (of the U.S) and foreign country in which it has
its PPB
1. (See examples pg. 207 of Freer supplement)
III. Federal Question
a. §1331 – permits fed courts to hear claims “arising under” fed law;
i. citizenship is irrelevant & amount in controversy doesn’t matter
ii. Well‐pleaded complaint rule → ask – is “is plaintiff enforcing a federal right?”
i. If so, then probably a FQ case
ii. Look only at the plaintiff’s complaint → ignore anything filed by the def (such as D’s
answer or counterclaim)
1. Only looks to the claim itself – ignores extraneous material P may have pleaded
2. It is never enough simply that P’s claim mentions or implicates some federal law
iii. Louisville & Nashville Railroad Co. v. Mottley (1908):
1. Facts = railroad gave Mottleys a lifetime pass to ride for free; Congress passed a
law forbidding railroads from giving away free passes (refused to honor the
Civ Pro 10
pass); in the Mottley’s complaint they said (1) Railroad has breached the
contract and (2) the new fed law doesn’t apply to them
2. Reasoning = the claim did not invoke federal question jurisdiction (1 st claim was
not federal – about breach of contract & 2 nd part was not part of the claim – it
was a rebuttal of an anticipated defense & under well‐pleaded complaint rule, it
is ignored)
IV. Supplemental Jurisdiction → does not get a case into fed court (operates only after already in fed. Court)
a. Every single claim asserted in federal court must have federal SMJ
i. If additional claim doesn’t meet FQ or diversity → might still get into fed court through sup
jurisdiction
b. Only proper if the claim being joined is so closely related to the claim that got the case into fed court
that they can be considered part of the same “case”
c. United Mine Workers of America v. Gibbs (1966) → Federal court has supplemental jurisdiction over
claims that share a common nucleus of operative fact w/ a jurisdiction‐invoking claim
i. Common nucleus test is always met by a claim that arises from the “same transaction or
occurrence” (T/O) as the claim that has invoked an independent basis of fed subject matter
jurisdiction
ii. Gibbs is broader than T/O → Gibbs will grant supplemental jurisdiction over claims that have a
mere “loose factual connection”
iii. Could reasonably expect the two claims to be tried together (in Gibbs – the claims arose from
the same labor dispute)
d. Supplemental Jurisdiction Checklist ‐ Codified in §1367 :
i. Does §1367(a) grant supplemental jurisdiction to this claim?
i. Yes, if it meets Gibbs . → Grants supp. Jurisdiction to all claims that share a common
nucleus of operative fact w/ the claim that got the case into fed. Court
ii. §1367(b) – cuts back on that grant of supplemental jurisdiction but only in certain situations:
i. §1367(b) applies only in diversity cases to the following claims (denies supp jurisdiction
in the following types of claims):
1. Claims by plaintiffs against parties joined under Rule 14, 19, 20, or 24.
2. Claims by Rule 19 plaintiffs
3. Claims asserted by people (absentees) seeking to intervene as plaintiff under
Rule 24
ii. Applies to only diversity of citizenship cases (NOT to cases that got into fed court
through FQ)
iii. Takes away supp. Jurisdiction over claims by the plaintiff (NOT the def)
V. Removal = (Governed by §§ 1441, 1446, and 1447)
a. Allows a def who was sued in state court to “remove” the case to federal court
b. State → Federal court
c. 4 rules:
i. (1) General rule – D can remove if the case could have been filed in fed. court (Diversity/FQ)
i. Exception #1 – you cannot remove a diversity case if any def is a citizen of the forum
(in‐state‐def rule)
ii. Exception #2 – D cannot remove a case more than 1 year after it was filed in state court
1. Under §1446(c)(1) a def can remove a diversity case more than one year after
the case was filed if the fed court finds that P acted in bad faith to prevent
removal
ii. (2) You must remove within 30 days of service of process (when you were served – not when
filed)
Civ Pro 11
iii. (3) all defs who have been served w/ process must join – has to be unanimous
iv. (4) the 30 days starts afresh with each newly served def
VI. Remand
a. If doesn’t belong there then send back to state court
b. Plaintiff must move to remand within 30 days of filing of the report if her motion o remand is based on
something other than SMJ (i.e. if her motion is based on a procedural issue)
c. There is no time limit on remanding the case on SMJ*
*VENUE, TRANSFER, AND FORUM NON CONVENIENS*
I. Venue
a. Basic Provisions:
i. Tells us which federal court (94 federal districts)
ii. If removed from state court to federal court (handled by its own statutes)
iii. If not a removed case, if the plaintiff files initially in fed. court then handled by 1391(b) – (2
choices of where to lay venue):
1.
2. Can lay venue in district where all def’s reside , OR
a. If all defs reside in different districts of the forum then you can use any of these
districts
b. A human resides in district where domicile (can reside in only one district at a
time, for purposes of venue)
c. Businesses reside in all districts where subject to PJ for this case (all businesses,
including non‐incorporated businesses)
3. (OR) where substantial part of claim arose
4. Fall‐back venue ‐ §1391(b)(3):
a. Can only use that where do district in the country meets 1391(b)(1) or (b)(2)
b. Only possible if the claims arose overseas – hardly ever applies
II. Transfer
a. Terminology:
i. Transferor court – the court from which we are transferring
ii. Transferee court – the court to which we are transferring
iii. Transferor district → to transferee district*
b. Can be ordered only to another court in the same judicial system
i. Permitted either to (1) fix a venue problem or (2) to ensure that litigation proceeds in a more
convenient locale
ii. You cannot go from a state court in one state to a state court in another state
iii. You can go from one fed. court to another fed. court in a different state through transfer (same
system)
c. Two Transfer Statutes in the Federal Systems :
i. §1404(a) → the transferor court is a proper venue, (going to another proper venue); may
transfer based upon 3 things:
1. Convenience of the parties
2. Convenience of the witnesses
3. Interest of justice
4. Factors:
a. *The court will look at public & private interest factors:
i. Public = local interest in controversy, interest in having trial in a forum
familiar w/ the law that will govern the dispute
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ii. Private = convenience of parties and witnesses, including availability of
subpoenas for unwilling witnesses and access to relevant records
b. Atlantic Marine (2013) → if the parties have forum selection clause for a
particular district, we will almost always transfer to that district (a contract in
which the forum selection clause says where dispute will be)
ii. §1406(a) → venue in the transferor court is improper .
1. court may transfer in the interest of justice or it may dismiss
d. §1404(a) & §1406(a) require that the transferee district be a place where the case “could” or “might”
have been brought
i. Hofffman v. Blaski (1960) – court held this language means that the transferee must (1) be a
proper venue and (2) have PJ over D
1. Must be true independently (w/o waiver by the def)
e. PJ in the Transferor court:
i. Goldlawr, Inc. v. Heiman (1962) – held that a §1406(a) transfer was proper even though the
transferor court lacked PJ over D.
1. Courts have generally adopted for §1404(a)
f. Choice of Law issues:
i. Van Dusen v. Barrack (1964)
1. §1404(a) case
2. Holding = the choice of law rules of the transferor court apply in the transferee court
a. A transfer under §1404(a) should result only in a change of courtrooms & not a
change in the governing law
3. Limitation of Van Dusen → Does not apply to a §1406(a) transfers or to any transfer
effected under Goldlawr
a. (plaintiff sued in an improper place – it would be unfair to permit the plaintiff to
capture the choice of law rules of an improper forum)
ii. Ferens v. John Deere Co . (1990) – the court extended Van Dusen to a §1404(a) transfer sought by
the plaintiff
T’OR T’EE Goldlawr Van Dusen
1404 Proper Venue Proper Venue Yes, applies Yes
(including removed & PJ over Def (will apply, but not in a 1404
cases) Goldlawr case)
1406 Improper Venue Proper Venue Yes, applies No, b/c if 1406 applies
& PJ over Def it is an improper venue
(result of Hoffman)
*Goldlaw – a transferor can transfer even if lacks PJ
*Van Dusen – when case is transferred, the choice of law goes with it (choice of law rules are those rules that will
determine what will govern the underlying dispute)
*Under 1404 (look at a lot of factors) – either transfer or not transfer (depending on forum non‐convenience)
*1406 – may transfer or dismiss (up to the court)
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III. Forum non Conveniens → Where the court dismisses the case b/c there is a more appropriate venue
a. MUST be another forum available
b. Transfer is not available b/c the more appropriate court is in a different judicial system
i. Usually the more appropriate court is in a foreign country (to which transfer is obviously
impossible)
ii. Piper Aircraft v. Reino (1981):
1. Facts = plane crash in Scotland; victims and next‐of‐kin & crew Scottish; maintenance
crew Scottish; plan manufactured in PA
2. The suit against the American manufacturers in federal court in PA dismissed for forum
non conveniens
3. Center of gravity of dispute in Scotland; looked into public & private factors (same as a
§1404(a) transfer)
a. Court must be convinced that the center of gravity court is “available and
adequate” – means day in court (even if would get less money in damages in
that court)
IV. Transfer of venue, dismissal under 1406, or dismissal under forum non conveniens is always
DISCRETIONARY. Weight he following factors from Piper :
Public interest factors: Private interest factors:
1. Administrative difficulty to keep case 1. Ease of access to evidence
2. Local interest in deciding local controversies at 2. Ability to compel attendance of witnesses at trial
home through subpoena
3. Unfairness of burdening citizens with jury duty in 3. Expense of obtaining attendance of willing
a case unrelated to the forum witnesses
4. Case decided in a forum well versed in the law to
be applied
5. Avoid undue conflict of law/ application of
foreign law
THE ERIE DOCTRINE(S) – What Law Applies in Federal Court?
● In fed. court → Almost always in a diversity of citizenship case
o Under supremacy clause of the Constitution, when fed law applies, it trumps state law
o In FQ cases – federal law creates the claim and governs the substance of the dispute
o In diversity cases – P is suing on a state‐law claim
● Must the federal judge follow state law, or is she free to ignore state law in deciding an issue?
● Rules of Decision Act (RDA) §1652, provides that federal courts are to apply state “laws” except when federal
laws apply
o Swift v. Tyson (1842) – SCOTUS held that “laws” did not include “general common law” (judge‐made
law) → under Swift, fed judges in diversity cases could ignore state‐court general common law
(overturned in Erie)
I. Erie (1937):
a. Federal judge must apply state substantive law in a diversity case
i. 10 th amendment – states retain powers that are not expressly ceded to the federal gvt
b. If issue of substantive law → apply state law*
c. Fed courts follow their own “procedural law”
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* Determining Whether a Federal Directive is on Point and conflicts w/ state law : see pg. 544 of Freer supplement
I. Determines whether the matter will be assessed under the Hanna prong or the Erie prong
II. Though the Court has been inconsistent, in some decisions we see recognition that it is appropriate to
interpret federal directives narrowly, to avoid unnecessarily friction w/ state law (Shady Grove – court’s
most recent effort)
a. Court has asked:
i. In Hanna – whether the federal directive “covers the point in dispute” and
ii. In two other cases, it asked whether the federal directive was “sufficiently broad to control the
issue before the Court.” → B urlington Northern R.R. v. Woods and Walker
b. Broad interpretation : → the federal directive should be read broadly (as displacing the state law)
i. Ex: federal directive on pretrial adjudication
ii. Burlington Northern R.R. v. Woods : VERY BROAD
1. Rule 38 of the Federal Rules of Appellate Procedure permits (but does not require) a
Court of Appeals to impose an award of double costs if it finds that an appeal was
frivolous. State law, required that an appellant be fined 10% of the judgment if the
appellant had obtained a stay of the trial court judgment and lost on appeal.
a. Court concluded that Rule 38 covered the matter in question by permitting only
permissive sanctions and prohibiting mandatory sanctions.
b. This interpretation of Rule 38 was very broad (b/c there is nothing on the fact of
that Rule indicating an intent to preclude a mandatory penalty in the
circumstances covered by the state rule)
i. Therefore, Rule 38 could have coexisted w/ state law mandating a
sanction in certain circumstances
iii. Stewart v. Ricoh → broad
1. Broad interpretation of federal statute (see pg 547 of Freer supplement)
2. Diversity case; an Alabama citizen entered a contract w/ a NY citizen; contract
contrained a forum selection clause that provided that litigation arising from the
contract would take place in NY; Alabama law prohibited the enforcement of forum
selection clauses, whil NY law permitted such clauses; Alabama citizen sued in state
court in Alabama and def removed the case to federal court and sought enforcement of
forum selection clause by transfer
a. Supreme Court held that the venue‐transfer statute, 28 U.S.C. 1404(a) was on
point
b. Concerning b/c this creates vertical disuniformity (in fed courts they are
enforceable through transfer and in state courts they are not)
c. A narrow interpretation :
i. Possible only when a federal rule is susceptible to at least two interpretations (the plurality
opinion in Shady Grove , reminds us that some Federal Rules are not)
1. In Shady Grove – court concluded that Rule 23 was not ambiguous (which meant that
the case qualified to proceed as a class action – whereas under NY law the claim could
not be asserted as a class action)
ii. If rule read narrowly, it can possibly co‐exist with state law
1. Concern w/ applying Hanna to make federal directive govern the situation (assuming it
is valid) in such circumstances w/o any assessment of outcome determination, twin
aims of Erie, or any balancing of the relative interests of the federal and state juridical
systems
2. Concern that use of Hanna may undermine important state policies
iii. Walker v. Armco Steel Corp :
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1. The Court held that Federal Rule 3 governs “commencement” of an action for purposes
other than tolling the statute of limitations
a. Doing so, allowed the Court to avoid a conflict btwn the Federal Rule and state
law on the topic.
b. Permitted the Court to find that under Erie prong, the state law should govern
*If federal directive on point, it will prevail as long as it is valid.
I. For FRCP to be valid, it must fit within the REA → means it must not enlarge or modify a substantive right
and within the Constitution
* Erie Doctrine Application:
II. Factors for apply Erie Doctrine:
a. Guaranty Trust Co. v. York (1945) → “outcome determination” test
i. Q – if ignore state law on this point, will it lead to a different outcome in federal and state
courts?
1. If yes – then fed judge should follow state law
b. Byrd v. Blue Ridge Rural Elec. Coop., Inc . (1958)
i. Federal courts must apply state substantive law and topics “bound up” with substantive law
ii. If there is a federal systemic interest in doing it differently (not following state law) then the
court weighs the relative interests → federal court shave interest in running own allocation of
authority
iii. Problem: the court has never explained how to weigh these interests
c. Hanna v. Plumer (1965)
i. If there is a federal rule of civil procedure on point that clashes w/ state law, the federal rule
governs
ii. Twin aims of Erie:
1. Avoidance of forum shopping
2. Avoidance of the inequitable administration of law
iii. Q – If ignore state law on this issue, will it cause litigants to flock to federal court (if they can
invoke SMJ)?
1. If so → unfair b/c you can only avoid state law by going to federal court, and instate
plaintiffs cannot go to federal court b/c they cannot invoke diversity
III. Erie Checklist:
a. (1) Look at federal directive to see if one is on point (Hanna) → if so then no Erie analysis
i. Then assess if fed directive is valid → valid if:
1. Constitutional provisions
2. Federal statutes if they fall within Congress’s power to legislate under Article I
3. FRCP – valid if it satisfies the REA §2072, which provides that the Rules “shall not
abridge, enlarge or modify any substantive right.”
a. In Shady Grove Orthopedic Assn., P.A. v Allstate Ins. Co. (2010) – 4 justices
concluded that the REA is satisfied if the Rule in question can be characterized
as “arguably procedural”
b. The court has never held a Rule invalid
*If no federal provision on point, the federal court undertakes the Erie analysis to determine whether the
court must apply state law or if it is free to ignore state law:
b. (2) Guaranty Trust – outcome determinative test
c. (3) Byrd – bound up?
i. Weigh state interest against fed interest (reasons for state law & reasons for fed law)
ii. Apply state law unless fed interest greater than state interest
d. (4) Twin aims of Erie (Hanna v. Plumer):
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i. Avoidance of forum shopping
ii. Avoidance of the inequitable admin. of the law
CHALLENGING FORUM SELECTION
I. Special Appearance
a. If D wants to challenge PJ, she can make a “special appearance,” by which D challenges only PJ and
nothing else
b. D doesn’t subject herself to jurisdiction
c. “Direct Attack” → go attack PJ, but if defense fails, be prepared to litigate the merits
d. “Collateral attack ” → allow default jmt to be entered, contest that when the P tries to enforce jmt
through full faith & credit jmt was w/o PJ (can raise no other defenses)
II. Rule 12 and Waiver
a. Rule 12 – when you get sued and receive notice, you have a choice of response:
i. Can answer (a pleading)
ii. Can make a motion
b. Rule 12(b) – 7 defenses that a def may raise in her answer or by a motion to dismiss:
i. Rule 12(b)(1) – Lack of SMJ
ii. Rule 12(b)(2) – Lack of personal jurisdiction
iii. Rule 12(b)(3) – Improper Venue
iv. Rule 12(b)(4) – Insufficient process
v. Rule 12(b)(5) – Insufficient service of process
vi. Rule 12(b)(6) – Failure to state a claim
vii. Rule 12(b)(7) – Failure to join an indispensable party
** Defenses 12(b)(2) ‐ (b)(5) must be asserted in the first Rule 12 response or they are waived **
‐PJ, improper venue, insufficient process, insufficient SOP → waived if not raised in 1 st response
*SMJ = ANYTIME, including on appeal
*Failure to state a claim, join a required party, or state a legal defense to a claim (not the 12b ones)
preserved through trial
PLEADINGS & JUDGMENTS BASED ON PLEADINGS
I. Complaint
a. Contents of a Complaint (Rule 8):
i. Statement of the grounds of SMJ → 8(a)(1)
ii. P must make a “ short and plain statement of the claim, showing that [she] is entitled to relief ”
→ 8(a)(2)
1. Assessing whether the complaint is legally and factually sufficient
2. Court does not consider evidence of what actually happens (for this motion, the court
assumes that what P alleges is true)
3. Court basically asks, “if what P says is true, would P win a judgment?”
a. If no → case fails to get past the pleading
b. If yes → belongs in the litigation stream
iii. P make a request for judgment – tell the court what relief she seeks → 8(a)(3)
1. Putting a dollar figure on there doesn’t necessarily allege what you will recover
2. Ex: damages to compensate for harm, or restitution of property improperly held by D, or
an injunction requiring D…
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b. General Rule – complaint must put the other side on notice
i. Exceptions:
1. Rule 9(b) – circumstances constituting fraud or mistake must be pleaded with
particularity
2. Rule 9(g) – items of special damages must be pleaded with specificity
c. How high is the bar?
i. Bell Atlantic Corp. v. Twombly (2009)
ii. Ashcroft v. Iqbal (2007)
iii. Twiqbal – the Court raised the pleading barrier for plaintiffs → 3 principles for determining
whether P has stated a claim:
1. Court ignores P’s “conclusions of law”
2. Court looks at P’s “allegations of facts”
3. Court to determine whether the “ facts” alleged state a “plausible claim ” → judge to be
guided by her own common sense (concern of subjectivity)
d. When a court grants a Rule 12(b)(6) motion to dismiss:
i. “without prejudice” = gives P a chance to try again
ii. “with prejudice” = ends the matter (court concludes that P simply cannot state a claim)
II. D’s response:
a. Federal Rule 12 → Must respond within 21 days after service of process (D will either answer or bring a
motion) – ( if waived service under Rule 4(d) has 60 days from the date on which P mailed the materials
to her)
i. By Motion:
1. Not a pleading!
2. A request for a court order
3. Rule 12(e) – motion for a more definite statement (very rare) – where P’s allegations are
unintelligible
4. Rule 12(f) – a motion to strike
a. Ex: appropriate to remove scandalous or irrelevant material from a doc
5. Rule 12(b) – 7 defenses (motion to dismiss under any of these) – can be put in a motion
or in your answers
a. SMJ – 12(b)(1)
b. PJ – 12(b)(2)
c. Venue – 12(b)(3)
d. Improper Process → if problems w/ summons or copy of complaint – 12(b)(4)
e. Improper service of process → docs not served right – 12(b)(5)
f. Failure to state a claim – 12(b)(6)
g. Failure to join an indispensable party – 12(b)(7)
ii. By answer:
1. A pleading
2. Note: can make a motion and also answer
3. 2 things must be done in answer :
a. (1) = Rule 8(b) – Respond to the allegations of the complaint:
i. Admit
ii. Deny
iii. Lack sufficient information to admit or deny
1. MUST be in good faith (Rule 11) – if you have access to the info,
you can be sanctioned
iv. ***FAILURE to deny is treated as an admission on all allegations
EXCEPTY regarding damages
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1. If you don’t deny then surely you will fry *
b. (2) = Rule 8(c)(1) ‐ Raise affirmative defenses
i. Different from a denial
ii. Affirmative defense = injects a new fact
iii. Failure to plead them can result in waiver (so if you don’t plead your
affirmative defense, put it in your answer – def has the burden to raise
this)
iv. (e.g. statute of limitations, statute of frauds, res judicata)
b. Waiver:
i. Rule 12g and 12h → impose fairly strict rules about waiver (3 rules):
1. 12(b)(2,3,4,5) – must be in your first Rule 12 response = the waiveable defenses
2. 12(b)(6,7) can be raised for the first time through trial
3. 12(b)(1) is never waived (it can be raised at any time in the case)
III. Amendment Pleadings:
a. Rule 15 – can ask for leave to amend (21 days) → R
ule 15(a)‐(c)
i. 15(a) – 3 basic rules of amendment:
1. Plaintiff has the right to amend once before def serves her answer
2. Within 20 days of serving her answer
3. If there is no right to amend, you seek leave of court → the amendment should be
freely given when justice so requires
ii. 15(b) – Variance: where the evidence at trial doesn’t match what was pleaded. It goes beyond
the scope of what was pleaded. Wherever there is a variance at trial, either:
1. The other side will not object to the variance (the pleading is treated as though it is
amended to show new info), or
2. The other side will object to the variance (the evidence is admissible, but even at trial,
the party that is coming up with this evidence can seek leave to amend)
iii. 15(c) – Amendments after the statute of limitations has run
1. 15(c)(1)(B) – Amendment is to add a new claim (Amended pleadings will relate back if
they concern the same conduct, transaction, or occurrence as the original pleadings)
2. 15(c)(1)(C) – Trying to amend to add a new def (allowed if you sued the wrong person
the first time around, but, somehow, the right person knew about it and can be charged
w/ knowledge of it and that but for a mistake he would have been charge in the original
complaint)
3. 15(c)(1) – Relation‐back if a statute allows it
IV. Rule 11
a. Requires the attorney to sign all documents except for discovery docs → certifies to the best of your
knowledge and belief, after an inquiry reasonable under the circumstances, that:
i. The doc is not for an improper purpose
ii. The legal contentions are warranted by law, or there is at least a non‐frivolous argument that
the law should change
iii. The factual contentions have evidentiary support or are likely to after further investigation
iv. The denial or factual contentions has evidentiary support or are likely to after further
investigation
b. 3 procedural matters for Rule 11:
i. The certification is affective every time that doc. Is presented to the court (“continuing
certification”)
ii. Sanctions are discretionary & are to be aimed at deterrence. Can be non‐monetary
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iii. A motion for violation is served but is not filed
DISCOVERY AND PRETRIAL MANAGEMENT
I. Scope of Discovery:
a. Rule 26(b)(1) → can discover “any info relevant to the claims or defense of any party”
b. Broader than evidence admissible at trial (ex: hearsay; insurance info)
i. Often about if the evidence is relevant and discoverable → test = if it is “reasonably calculated
to lead to the discovery of admissible evidence.”
ii. Permits the court, for good cause, to order discovery along broader lines: “relevant to the
subject matter involved in the dispute” ** ‐ Rule 26(b)(1)
c. Things protected from discovery:
i. Privileged material :
1. Rule 26(b)(1) permits discovery only if that matter is “nonprivileged”
2. Confidential communications btwn particular persons (such as lawyer & client, spouses,
or clergyperson and parishioner)
a. Communication must be btwn persons having one of the special relationships
recognized as raising a privilege
i. ONLY to confidential communications
1. EX: if a client tells her lawyer something in a crowded elevator
and others overhear, the communication is not privileged
b. Communication with a professional (like a lawyer) must have been made in
furtherance of providing professional services
c. Underlying concept = policy determination that particular relationships would
be harmed if parties to confidential communications were forced to divulge the
contents of those communications
3. Failure to assert the privilege properly can result in waiving it** ‐ Rule 26(b)(5)(A):
a. Must “expressly make the claim” and “describe the nature of the documents,
communications, or tangible things not produced or disclosed – and do so in a
manner that, without revealing information itself privileged or protected, will
enable other parties to assess the claim”
ii. Work product , → Rule 26(b)(4) unless:
1. Substantial need
2. Substantial hardship
3. *Opinion work product is protected
d. Proportionality ‐ (pg. 408 Freer supplement)
i. Limitation when “the burden or expense of the proposed discovery outweighs its likely benefit”
– Rule 26(b)(2)(C)(iii)
ii. Limit when the “discovery sought is unreasonably cumulatie or duplicative, [and] can be
obtained from some other source that is more convenient, less burdensome, or less expensive”
– Rule 26(b)(2)(C)(i)
1. Not enough that there is some overlap or duplication – must be “unreasonably”
redundant
II. Required Disclosures → Rule 26(a)
a. Parties must produce info w/o request from other side → 3 required:
i. 26(a)(1) – Initial Disclosure
1. Must identify people & docs with discoverable info that you may use to support your
claims or defenses
2. Plaintiff must give a computation of damages
3. Defending party must tell about insurance that she has for all or part of a claim →
encourages settlement, not admissible at trial
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ii. 26(a)(2) – Experts
iii. 26(a)(3) – Trial Evidence
Tools which can be used on Parties and Non‐parties Tools which can be used only for parties
Depositions : R
ule 30 and Rule 31 Interrogatories : Rule 33
1. Rule 30 → oral deposition (questions asked orally) 1. Written questions answered in writing
2. Rule 31 → depositions on written questions under oath
3. Get 10, 7 hours each (can request more) 2. Get 25, with 25 questions each (including
4. Statements under oath! subparts)
5. Must send notice to every other party of time and place 3. 30 days to respond
at least 21 days before hearing date, get a court reporter 4. Must provide information in your control
to record and transcribe (set a reasonable time and
place for deposition to secure attendance of parties)
6. Exceptions: go straight to Rambo sanctions w/o a
meeting with other parties for total failure
Request for Production : Rule 34 Medical Exam : Rule 35
1. Written request for access to stuff (might be docs, ESI, 1. Can be any suitably licensed or certified
etc.) examiner
2. Must respond with willingness to produce either 2. Must get a court order
document requested or make a specific objection to a 3. Must show good cause that the person’s
document within 30 days condition is in controversy
3. Specific objections 4. Really has to be a case that involves med
a. privilege conditions (very difficult order to get)
b. trade secret 5. Allowed access to exam report, but waives
c. work product (unless undue hardship) privilege to question about the
4. *The non‐party could be served w/ a subpoena duces examination at trial. Can’t use doctor
tecum → requires the non‐party to attend the patient confidentiality
deposition & to bring the requested docs (ESI with her) 6. Med exam of a party or someone within
specific control of the party = child.
7. Exceptions: contempt not available for
failure to submit
Request for Admissions : Rule 36
Getting information from a Non‐party: 1. SENT only to parties
Always use a subpoena. 2. If you ignore the request for 30 days, the
Otherwise, subject to sanctions if the person does not show up matter is admitted.
1. Deposition: within 100 miles of where person resides, is 3. Must specifically deny or state in detail why it
employed, or regularly transacts business cannot admit or deny.
2. Documents: subpoena duces tecum to get docs from 4. What if you prove something that the party
non‐party fails to admit under a Rule 36 request, the
3. Only sanction available for non‐compliance after party who failed to admit may be required to
subpeona= contempt pay reasonable expenses and attorney’s fees
for proving matter at trial
*For vicarious liability – an employee is not in “custody or legal control” for medical exam
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III. Discovery Sanctions
a. Steps for Partial Failure to Comply
i. Rule 37(a)(1) – “motion to compel” response → a party who believes an opponent has failed to
comply with a proper discovery request must:
1. Confer informally with the opponent, to see if the dispute can be resolved w/o resort to
the court
2. If informal means doesn’t resolve the matter, the requesting party must move to
compel disclosure or discovery under Rule 37(a)(3)
a. If motion granted → the Rp will be subject to a minor sanction (an order to
compel her to answer the questions) ‐ court may order the noncomplying party
to pay the moving party’s expenses and fees for the motion to compel – 37(a)(5)
b. Court may also enter protective orders defining the scope of required discovery
– 37(a)(5)(C)
c. If court grants a motion to compel, but the party STILL doesn’t respond
adequately, Rule 37(b) authorizes a variety of sanctions:
i. Sanctions include – striking claims, taking disputed facts or claimed as
established, excluding evidence, dismissing the action, or ordering
payment of the fees & expenses caused by the refusal to comply
ii. One of which is an establishment order – simply establishes facts for
purposes of this litigation – Rule 37(b)(2)(A)(i)
iii. Able to find a party in contempt – Rule 37(b)(2)(A)(viii)
ii. Checklist: Partial Failure to Comply :
1. Must be an order compelling her to answer the specific unanswered questions (that
order is only appropriate if the respondant party’s excuse (such as a claim of privilege) is
rejected.
2. The party against whom the order is entered must violate that order
a. That opens the party up to serious sanctions and a contempt citation
iii. Rule 37(c)(1) – address what happens when a party fails to make one of the required disclosures
iv. Rule 37(c)(2) – fail to admit something that should have been admitted under Rule 36 (request
for admission)
v. Rule 26 (c) ‐ the one from whom discovery is sought asks the court for a protective order
1. Order from the court that she will not be required to respond on certain matters
2. Raising objections to specific questions – Rule places burden on her for discovery
b. Total Failure to Comply →
R
ule 37(d)
i. If RP fails completely to respond to interrogatories, requests to produce, or to appear at her
own properly‐noticed deposition → Rule 37(d)(3) – incorporates the significant sanctions in Rule
37(b)(2)(A)
ii. NO need for the party requesting discovery to seek an order compelling discovery
iii. Can get sanctions right away and can recover costs:
1. Striking the pleadings
2. Disallowing evidence
3. Exception: RP cannot be held in contempt, b/c she has not yet violated a court order
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iv. If the failure concerned interrogatories or a request for production (not deposition), the party
seeking sanctions must certify that she tried in good faith to obtain the discovery w/o court
intervention → Rule 37(d)(1)(B)
1. The moving party doesn’t need to make this certification if the other party didn’t show
up for deposition
Sanctions process: Total failure or Partial Failure?
IV. Discovery Timeline:
a. Party conference must be held before Day 100
b. Create discovery plan (including electronic info issues)
c. Required disclosures are due in 14 days
d. 16(b) scheduling order made on day 120
Def served process Party conference Req. disc due 12(b) sched order
26(f) – make discovery pln
Day 1 Day 99 Day 113 Day 120
(14 days) (7 days)
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PRE‐TRIAL ADJUDICATION
I. Voluntary Dismissal → Rule 41(a)
a. Where plaintiff wants to dismiss the case → plaintiff may dismissal w/o prejudice once by serving a
notion of dismissal before the D serves her answer or motion for summary judgment
b. Stipulation of the parties
c. Court order
II. Involuntary Dismissal:
a. Rule 12(b) defenses
b. P’s failure to prosecute the case or to abide by court order or rules → Rule 41(b)
III. Default → Rule 55(a)
a. Plaintiff must request the entry to default from the clerk of the court when the def has not responded
within 20 days after service of process
i. Once D’s time to response has lapsed, P must ask the clerk to enter the default (in fed court,
default is not automatically entered)
b. Once default on the record, D cannot answer or bring a motion
i. Def must have the default set aside under Rule 55(c)
c. Default stops D from trying to contest the case
d. Does not entitle P to recover anything:
i. To recover money or other relief, P will need to get a default judgment under Rule 55(b)
1. Rule 55(b)(1) – permits the clerk of the court to enter the jmt in very limited
circumstances
2. P will more often seek entry of default jmt by the judge
ii. Default jmt – gives P the legal right to the remedy stated (can be enforced like any other
judgment)
iii. D may seek to have a default jmt set aside under Rule 60(b)
IV. Motion to dismiss for failure to state a claim → Rule 12(b)(6) Motion
a. The court doesn’t look at the evidence → looks only at the face of the complaint
b. Ignores conclusions of law and only looks at allegations of fact
c. Court assesses whether those facts state a plausible cause
V. Motion for Summary Judgment → R ule 56
a. Court can look at evidence
b. Standard for granting motion: (Rule 56(a))
i. Moving party must show that there is no genuine issue as to any material fact, and
ii. That she is entitled to judgment as a matter of law
c. Evidence you can use:
i. Affidavits
ii. Declarations
iii. Depositions
iv. Answers to interrogatories
v. Pleadings ARE NOT (unless they are verified pleadings – exceptionally rare)
d. Court views the facts in light most favorable to the non‐moving party:
i. Matsushita Electric Industrial Co. v. Zenith Radio Corp . (1986) → if two inferences are equally
plausible on the facts (one supporting summary judgment and one not) – it is proper for the
court to adopt the one favoring summary judgment
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ii. Anderson v. Liberty Lobby (1986) → non‐moving party must produce more than a “scintilla” of
evidence to support its version
1. Must provide enough evidence from which a reasonable jury could rule in its favor – if
fails to do so → summary judgment proper
iii. Celotex Corp. v. Catrett (1986) → Def can prevail on a motion for summary judgment w/o
submitting any evidence
1. Under Celotex, the party that doesn’t have the burden of proof at trial may move for
summary judgment by pointing out that the record is devoid of evidence that supports
the other side’s case
a. Now in Rule 56(c)(1) – allows a motion because “a fact cannot be…supported.”
2. Facts = Def, which had been sued for wrongful death allegedly caused by its product,
made its motion by pointing out that the plaintiff had no evidence that the decedent
had ever been exposed to the product it manufactured
e. If no issue of material fact → court rules as a matter of law
i. (Judge doesn’t determine the credibility of witnesses – that is a matter of the jury)
ii. Scott v. Harris →
there was a videotape taken from police vehicle during vehicle chase that
made it clear as to what happened (granted summary judgment)
f. ALWAYS discretionary
TRIAL AND RETRIAL MOTIONS
I. Right to a Jury Trial
a. 7 th Amendment (only in fed court) → preserves the right to jury (doesn’t grant or create) in actions at
law, but not a suits at equity
b. Two‐part test ( Shauffer’s Union v. Terry ):
i. (1) Is this claim analogous to a claim that existed in 1791?
ii. (2) Is the remedy a remedy at law or remedy at equity? (remedy at law is preserved)
1. Remedy at law = compensatory damages
2. Equity = injunction, or specific performance, recisision or reformation
3. Often have both today → B eacon Theaters and Dairy Queen together give us 3 rules:
a. (1) Determine the jury right issue by issue (not all or nothing – don’t looj at
center of gravity to see what most important part is)
b. (2) If an issue of fact underlies law and equity – you get a jury
c. (3) Try the jury issues first
c. In most civil cases, the burden is to show facts by a “preponderance of the evidence” (establish hat the
jury’s conclusion that the fact is more likely than not)
II. Selection of a Jury
a. Rule 48 (governs how many jurors there are in a civil case in federal court)
i. Each side has unlimited strikes of potential jurors for cause
ii. Each side has three preemptory strikes → must have a race‐neutral and gender‐neutral reason
for using these strikes
b. Voir Dire – the questioning of prospective jurors by a judge and attorneys in court
i. Used to determine if any jury is biased and/or cannot deal w/ the issues fairly
c. Need 6 people to decide a civil case in fed court
III. Difference btwn Verdict and Judgment
a. Verdict = Jury’s decision
i. General verdict = jury finds for P or for P
ii. (or) the court may, give the jury a specific verdict form or a form with specific questions
b. Judgment – the official announcement by the court of the resolution of adjudication
i. Based upon the verdict
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IV. Motions for JMOL, RJMOL, and New Trial
a. JMOL → R ule 50(a)
i. Motion for judgment as a matter of law
ii. Motion made by a party at trial
iii. Standard = reasonable people couldn’t disagree on the result
1. No genuine dispute on a material issue of fact
iv. Rule 50(a)(ii) – you cannot move for this until the other side has been heard at trial
1. Def can raise after the plaintiff rests
2. P can raise after she rests and the def rests
3. Both can move after rebuttal
v. Judge steps in and takes the decision away from the jury
vi. Essentially the same as summary judgment but JMOL comes up at trial
vii. Court may raise JMOL sua sponte after a party has been fully heard:
1. When non‐moving party has not put on enough evidence to get the jury zone or failed
to rebut such strong evidence to push out of jury zone
b. RJMOL → R ule 50(b)
i. Renewed motion for judgment as a matter of law
ii. Motion made by a party after trial, within 28 days after the court enters judgment
iii. Standard = reasonable people couldn’t disagree on the result
1. No genuine dispute on a material issue of fact
2. When the jury reached an unreasonable conclusion
iv. If motion granted, take judgment away from the person who won the verdict & enter judgment
for the person who lost the verdict
v. A motion for JMOL at an appropriate time is a prerequisite to a RJMOL
vi. Court cannot raise on its own after jmt
vii. When ruling on a proper RJMOL the court can:
1. Allow the jmt
2. Order a new trial or
3. Direct entry of JMOL
c. Motion for New Trial → R
ule 59(a)(1)
i. Judgment has been entered but there have been errors at trial that require the case to be
retried
1. May do so when the jury verdict is against the weight of the evidence
ii. Must be made within 28 days after entry of judgment
iii. New trial takes victory away from verdict winner but doesn’t declare a winner
iv. Court orders a new trial when convinced that something was so wrong w the first trial that it
affected the outcome of the trial
1. The problem must have been “prejudicial”
2. Must specify why:
a. Iowa rule = jurors biased by extrinsic forces (bribery, or independent research –
doesn’t include drugs)
i. Cannot testify to intrinsic evidence (deliberations of the mind)
b. Judge made a mistake (judge returns a verdict in conflict w/ the facts –
Dardurian)
v. No prerequisite (like for RJMOL)
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d. Remittitur
i. Court suggests a lower figure
ii. The court has no authority to set a new damages figure so P is not required to accept
1. P can either reject remittitur & take chances w/ new trial
e. Additur (damages are too low)
i. Violates 7 th amend (cannot be used in fed. court)
ii. Can be used in state court
iii. Give D the choice btwn new trial
JOINDER & SUPPLEMENTAL JURISDICTION
I. Checklist:
1.) Find a joinder rule that allows the assertion of the claim
2.) Assess SMJ over that claim
‐Try diversity
‐Try FQ
‐If neither met, try supplemental jurisdiction:
i. Does §1367(a) grant jurisdiction? – Yes if share a common nucleus of operative fact (Gibbs –
T/O)
ii. Does §1367(b) take away supp jurisdiction? –though applies in diversity cases, it defeats sup
jurisdiction only over claims by plaintiffs
*Assess SMJ every claim separately!!*
*Claims by an absentee joined in under Rule 19 cannot invoke supplemental jurisdiction (in a diversity
case)
II. Claim Joinder by the plaintiff → R
ule 18(a)
a. Plaintiff can assert any and all claims against the def
b. Claim preclusion encourages this
c. Note: Rule 18(a)(1) applies to any claimant
i. D may be a claimant (for instance, by asserting a counterclaim or crossclaim in the pending case)
III. Claim Joinder by the Def :
a. Counterclaim – claim against an opposing party
i. Rule 13(a)(1) → C ompulsory Counterclaim : arises from the same T/O as the P’s claim
1. If you don’t use it then you lose it!
a. Ex : A & B are driving and there is a collision; A sues B; the case is litigated and
ended – Case 2, B sues A to recover for the same wreck (case dismissed –
compulsory counterclaim that should have been filed w/ the first case
2. Compulsory counterclaims always meet Gibbs b/c arises from same T/O
ii. Rule 13(b) → P ermissive counterclaim : DOESN’T arise from the same T/O as the plaintiff’s
claim
1. Def may file the claim in the pending case
2. If Def prefers, may assert the claim in a separate case
b. Crossclaim – claim against a co‐party
i. Rule 13(g) – Must arise from same T/O as the underlying dispute
ii. Note: Cross‐claims always meet common nucleus Gibbs test (T/O)
IV. Proper parties
a. Rule 20(a) – question of who may be joined by co‐plaintiffs or co‐defs in a single case (doesn’t require
joinder)
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i. 20(a)(1) – co‐plaintiffs:
1. Test: (1) claim arise form same T/O and (2) raise at least one common question
ii. 20(a)(2) – co‐defendants :
1. Test: (1) claim arise form same T/O and (2) raise at least one common question
b. Don’t forget to assess SMJ!
V. Necessary and Indispensable Parties:
a. Bringing in an absentee into the case
b. Rule 19
i. Step 1 – is the absentee necessary? (rule says required); yes, if meet any of the three tests:
1. If w/o the absentee, the court cannot accord complete relief ‐ 19(A)(1)(a)
a. Looking to see if there will be ore litigation
2. *If the absentee’s interest may be harmed if she is not joined – 19(A)(1)(b)(i)
3. If the absentee’s interest subjects the def to multiple or inconsistent obligations –
19(A)(1)(b)(ii)
ii. Step 2 – is joinder of absentee feasible?
1. Look at 2 things:
a. If it is feasible, if there is PJ over absentee and,
b. If bringing absentee in will not make it impossible to maintain diversity
jurisdiction
iii. Step 3 – Joinder is not feasible? (even if necessary) – ex: if no PJ
1. Either proceed w/o the absentee, or
2. Dismiss the entire case
a. If decide to dismiss → absentee is indispensable (the court decides they are
necessary but cannot join) and go through Rule 19(b)(7) factors
3. Rule 19(b) – 4 factors (4 th factor – 19(b) is probably the most important)
a. Insures the case won’t be dismissed unless there is some other court where
everyone interested in the dispute can go to court
VI. Impleader (“Third Party Practice”)
a. Allows def to join somebody new (the TPD)
i. b/c the TPD is or may be liable to the def for all or part of the plaintiff’s claim
ii. Claims almost always for indemnity or contribution
iii. NOT a crossparty (b/c they are not co‐parties)
b. Rule 14(a)(3) → plaintiff can assert a claim against TDP (has to arise form same T/O of the case)
c. Rule 14(a)(2)(d) → the TPD can assert a claim against the plaintiff
d. Don’t forget to assess SMJ (try diversity and then try FQ – if don’t work then try supp.)
VII. Intervention → R
ule 24
a. The absentee is bringing herself into the case to (1) assert a claim or (2) defend against a claim
b. Up to the intervener to decide to come in as plaintiff or as def
c. Two types of intervention (must be timely):
i. * Intervention of Right – Rule 24(a)(2)
1. You have a right to intervene if your interest may be harmed if you aren’t joined (same
test for necessary parties)
2. Raised by absentee herself
ii. Permissive intervention – Rule 24(b)(2)
1. Absentee’s claim or defense has at least one question in common w/ the pending case
VIII. Impleader
a. Dispute over property – somebody holding property (the stakeholder) can force all potential claimants
into a single case
b. 2 types:
i. Rule of Interpleader ( Rule 22 ) → a diversity of citizenship case
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ii. Statutory Impleader → you need one claimant diverse from one other claimant (don’t need
complete diversity)
IX. Class Action
a. Initial requirements:
i. Rule 23(a)(1) – too numerous for practical joinder
ii. Rule 23(a)(2) – commonality
1. Focus on common answers (not common questions)
2. Wal‐mart Stores, Inc. v. Dukes (2011) – class of over 1 million women alleging sex
discrimination (no overarching discrimination b/c everyone affected by different
decisions so no commonality)
iii. Rule 23(a)(3) – rep’s claims must be those typical of the class
iv. Rule 23(a)(4) – rep will fairly and adequately represent the class
b. Must fit within 1/3 types of classes – Rule 23(b):
i. Rule 23 (b)(1) – Prejudice Class Action
1. Where class treatment is necessary to avoid harm to the class members or to the party
opposing the class
ii. Rule 23(b)(2) – Party opposing the class acted on grounds that are generally applicable to the
class, and that makes an injunction or declaratory judgment appropriate
iii. **Rule 23(b)(3) – Damages class
1. Must show that common questions predominate
2. Class action is the superior method for resolving this dispute
c. Motion to certify → a case is not a class action until the court has certified it (motion to certify)
i. If court certifies it, then must certify class counsel → R
ule 23(g)
d. Notice of pendency → in the B3 class, the court must give individual notice to all members reasonably
identifiable:
i. Rule 23(b)(3) – must tell class‐members various things, including:
1. They may opt‐out
2. They will be bound if they do not opt out
3. They may enter a separate appearance through counsel if they want
ii. This notice is not required in a B1 or B2 class
iii. The rep pays for the notice
e. Who is bound by class judgment:
i. ALL members except those who opted out of a 23 (b)(3)
f. Settlement or dismissal of a certified case must be approved by the court → R ule 23(e)
g. For SMJ –
i. For citizenship → look at the representative of the class (rep must be diverse from all defs)
ii. Amount in controversy → the rep’s claim must exceed $75,000 ( Exxon Mobil v. Allapattah )
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APPELLATE REVIEW
● No federal con. right to appeal in civil cases
● Statutory right to appeal final decisions of district courts to the U.S. Court of Appeals
o Appellate courts – review the case “on the record” (do not re‐try case)
o Discretionary Issues:
▪ Realm of reasonable decisions
▪ Will only reverse only if the trial court “abused its discretion”
o On findings of fact:
▪ Can only reverse if the trial court was “clearly erroneous”
▪ Presumption that the trial court reached the right decision on matters of fact
▪ Finding of facts by jury → entitled to enormous deference by the Court of Appeals
o On matters of law, appellate review is “de novo”
▪ No deference is accorded to trial judge’s interpretation
X. Final Judgment Rule (FJR)
a. §1291 → right to appeal only from “final decisions” by the fed. district court
i. Final judgment → one that completely concludes the consideration of the merits of the dispute
1. It is final if all that remains for the trial court is ministerial housekeeping of assessing
attorney’s fees
2. To determine ask: after making this ruling, does the trial judge have anything left to do
on the merits of the case?
a. If yes → ruling NOT appealable final jmt
3. Not final jmt when:
a. Grant motion for new trial
b. Enters summary jmt (no final judgment b/c P’s claim against D is still pending)
b. Appellate must file her notice of appeal in the trial court within 30 days of entry of the final judgment
XI. Interlocutory Review
a. Even though not final judgments – can be appealable
b. 3 categories:
i. By statute – (2 most likely)
1. § 1292(a) – certain interlocutory orders that are reviewable as a right
2. § 1292(b) – allows appeal of an interlocutory order if the trial judge certifies that it
involves a controlling issue of law & that there is a substantial ground for difference of
opinion.
a. Court of Appeals must also agree to hear the interlocutory appeal
ii. By FRCP
1. Rule 23(f) – Court of Appeals has discretion to review an order either granting or
denying class action suits
2. Rule 54(b) – Involves cases with multiple claims or multiple parties; The trial court can
expressly direct final jmt as to one or more of these and can make an express finding
that there is no just reason for delaying appeal
iii. Collateral Order Rule → gives Court of Appeals discretion to take an interlocutory issue, but 3
things must be true:
a. Must raise an important issue that is separable from the merits
b. The court order completely resolved that issue
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c. The issue is affectively unreviewable if we wait until final jmt
1. Note: really only thing that comes up is 11 th amend immunity
(cases against some arm of the state)
2. Rarely invoked successfully
* Cohen v. Beneficial Industrial Loan Co . – established requirements for the issue
appealed:
(1) Legally significant,
(2) Unrelated (“collateral”) to the merits of the underlying dispute
(3) Determined finally (not subject to reconsideration) by the trial court, and
(4) effectively unreviewable if the parties must wait until final judgment
iv. Extraordinary Writ
1. An original proceeding brought in the appellate court asking for an order compelling the
trial judge to do something or to vacate an order
2. Not appeals – separate proceedings initiated in the appellate court
v. Writ of Mandamus = Not an Appeal
1. Writ of prohibition to prevent the judge from exercising something
2. Only happens when the district judge does something that involves usurpation or
abdication
CLAIM & ISSUE PRECLUSION
● Case 1 is over; Case 2 is pending –Does the jmt in case 1 stop us from litigating stuff in case 2?
● Apply the preclusion doctrine of the system that decided case 1 **
I. Claim Preclusion (res judicata)
a. Claimant can only sue a def (D) one to vindicate a “claim” (or “cause of action”)
b. Applies if 3 things are true:
i. (1) Case 1 entered in a valid, final judgment on the merits ,
1. Rule 41(b) – every jmt is on the merits unless it is based on jurisdiction, venue or
indispensable parties
2. Final if it wraps up the case:
a. Summary jmt is judgment on the merits
b. Interlocutory is not final
ii. (2) Case 1 and Case 2 are brought by the same claimant against the same def, and
1. No claim preclusion if you have not been a claimant
iii. (3) the claimant asserted the same claim in Case 1 and in Case 2
1. Jurisdictions take different approaches:
a. Majority view = the claim is the T/O – means you only can sue one time about
T/O
b. Minority view = primary rights view says that you get a different claim for each
right invaded – doesn’t look at T/O
c. Exceptions to claim preclusion:
i. Parties might agree to allow the plaintiff to split the claim
ii. Court expressly reserves the plaintiff’s right to split the claim
iii. Plaintiff unable to rely on theory of recovery b/c of limited SMJ or authority
iv. Not being able to split is inconsistent w/ statute or constitutional scheme
v. Substantive policy in a continuing or recurring wrong
vi. Policies for claim preclusion overcome by some overwhelming issue
II. Issue Preclusion (collateral estoppel)
a. Prevents re‐litigation of a particular issue that was actually litigated and decided in Case 1
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b. Its operation is not tied to T/O (an issue in Case 1 may be deemed established in Case 2 even though the
cases involved different real‐world events
c. Must show 5 things:
i. (1) Case 1 entered in a final judgment on the merits
ii. (2) The same issue was actually litigated and decided in case 1
1. Will not have an issue preclusive effect → voluntary dismissal; facts admitted in
pleadings or an admission for failure to respond to a request under Federal Rule 36
2. Judgment based on summary judgment can carry issue preclusive effect
iii. (3) That issue must be essential to the judgment in Case 1
1. Must be what decided the case
2. If you can ignore the finding of fact on that issue & not change the outcome of the case,
it is not essential**
iv. (4) Against whom may prelusion be asserted?
1. Can only use preclusion against someone who was a party to case 1 or represented by
a party in case 1 (as a matter of due process)
2. Parties to previous suit
3. 6 narrow scenarios when Nonparty Issue preclusion may be justified ( Taylor v. Sturgell ):
a. A nonparty can agree to be bound by a judgment
b. A legal relationship permits the conclusion that the party litigated on behalf of
the nonparty (ex: succeeding owners of a property)
c. The nonparty was adequately represented in Case 1 by a party (such as certified
class action)
d. The nonparty controlled the litigation in Case 1 by funding the case, hiring the
lawyer, and making strategic decisions
e. Case 1 was litigated by a party who was acting as an agent of the nonparty
f. Some special statutory schemes expressly prohibit successive litigation
v. (5) By whom can preclusion be asserted? – court must assess “mutuality”
1. b/c not rooted in due process, courts are not compelled to apply mutuality so
jurisdictions may take on different approaches
2. Mutuality – can only be used by somebody who is a party in case 1
a. Mutuality with the narrow exception = applies only in a vicarious liability
situation in which the primarily liable party is found not negligent or if the
plaintiff is found contributorily negligent
i. Ex: Car owner, driver, and plaintiff (see Freer supplement pg. 620)
b. Mutuality with the broad exception = can use vicarious liability* (for narrow
cannot)
3. Non‐mutual issue preclusion (issue preclusion being used by someone who is not a
party in case 1)
a. Non‐mutual defensive (def in Case 2)– majority view: ok as long as the person
against whom you are using it has a full chance to litigate in case 1
i. Allows an issue to be estopped by a non‐party def if the claimant has
previously raised the issue and lost
ii. Prevents plaintiff from shopping from def to def with an inadequate
claim
iii. Incentivizes plaintiffs to join all possible defs
iv. Blonder‐Tongue (1971) → c ourt permitted NDIP, so long as P had a full
and fair chance to litigate the matters in Case 1 ( which it had)
1. Facts: In Case 1, P sued D‐1 for patent infringement. D‐1 claimed
that there was no infringement b/c P’s patent was invalid. The
court agreed and entered judgment for D‐1. In Case 2, P sued
D‐2 for patent infringement. D‐2 wanted to assert issue
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preclusion on the question that O’s patent was invalid. That
issue was litigated and determined and was essential to the
judgment in Case 1. No due process problem b/c preclusion was
being used against P, who was a party to Case 1. The problem
was mutuality – preclusion was used by D‐2, who was not a
party to Case 1.
b. Non‐mutual offensive ‐ majority view: NO
i. Fairness factors (from Parklane Hosiery Co. v. Shore ) → embraced NOIP
only if it would be fair in light of the circumstances; minority view:
1. Full chance to litigate in case 1
2. When sued – could foresee multiple litigations
3. You could not have joined easily in case 1
4. Not inconsistent judgments on record
Type of Pure Vicarious Vicarious Bernhardt/Blonder Parklane = Federal
jurisdiction/issue mutuality liability liability Tongue Common Law
preclusion rule jurisdictions ‐Meet fairness
(issue prec (where Case (regardless ‐Full and fair opp factors
by parties 1 against of order) to be heard? ‐Person using CE in
in prior Prim liable ‐Person using CE in case 2 was not a
case) and case 2 not a party party in case 1,
non‐negligen in case 1, and is and is a plaintiff in
t) defendant in case case 2
2
Non mutual X X X X X
offensive
Non‐mutual X X X X
defensive issue
preclusion
Broad Exception X X X
to mutuality
Narrow X X
Exception to
mutuality
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*CE = Collateral Estoppel (issue preclusion)
III. Rule Preclusion
a. Compulsory Counterclaim Rule – may force D to raise their claims → R ule 13(A)(1)
i. Def must assert their claim back against the plaintiff if the claim arises out of the same incident
ii. Most states have this rule
iii. If you try to sue later, would be dismissed under the compulsory counterclaim rule
iv. Can result in dismissal of case 2
THINGS TO WATCH FOR (multiple choice):
● Waivable defenses that were not in the first Rule 12 response
● DETAILS crucial
HYPOS Examples:
*Application of the Erie Doctrine:
The state legislature in state X concerned about health care costs – passes a law that requires med mal cases to
be arbitrated before you can go to jury. A citizen of State Y visits state X and goes to the doct (claims doc
committed malpractice & sues in fed court in State X – diversity jurisdiction) Result?
1.) No federal directive on point (Hanna does not apply)
2.) Apply Erie – all three tests
(1.) Is the state law “outcome‐determinative” under Guaranty Trust? Probably not. We have a
sense that arbitration will result in a smaller verdict, but there is no reason to think the outcome
will be different as it was in Guaranty Trust. After all, the plaintiff has a right to go to jury trial
after the arbitration.
(2.) Byrd – an arbitrations statute does not seem “bound up” with substantive law. It has
nothing to do with what elements the plaintiff must establish. It just affects who decides
whether she did establish her claim. So the state law seems to “form and mode.” Even if it were
outcome determinative, is there a fed. interest that outweighs the state interest? Well, there is
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a fed interest in jury trials, but the state law does not rob the plaintiff of a jury – it just delays
jury trial. And here, unlike in Byrd, the state has a considerable interest in its law – it wants to
reduce medical costs.
(3.) Twin aims? – if the fed judge ignores this state law, it will cause plaintiffs to go to fed court.
This, in turn, leads to the inequitable administration of law, because citizens of State X cannot go
to fed court. When they sue a State X doctor, they cannot invoke diversity, so they will be stuck
in state court and stuck with the arbitration statute. So, to avoid forum shopping and this
unfairness to the people of State X, the fed judge should follow state law.
*Final judgment rule:
1.) P sues D for breach of contract. D files a counterclaim against P. The court enters summary judgment in favor
of P on the counterclaim by D. D cannot appeal that ruling under §1291. Even though the ruling completely
adjudicated the counterclaim, it did not resolve the entire case. b/c P’s claim against D is still pending, there is
no final judgment yet.
2.) After 2 years of litigation & full trial, P wins a jury verdict and jmt of $500,000. The court then grants D’s
motion for new trial, which means P loses her jmt and must start over w/ a new trial. Can she appeal the grant
of a new trial under §1291? Court must hold a new trial (so has stuff left to do on the merits of the case); the
grant of new trial is not a final judgment
3.) Same facts as #2, except the court denies D’s motion for a new trial. This is appealable b/c after denying new
trial, the trial court has nothing left to do on the merits of the case. D will file notice of appeal within 30 days of
the denial of new trial