Civil Procedure – Fall 2019 – D.

Rendleman

I. PERSONAL JURISDICTION ........................................................................................................................... 2

A. OVERVIEW ........................................................................................................................................................................................ 2
B. TRADITIONAL BASES FOR JURISDICTION .................................................................................................................................... 3
C. POWER - EXPANDING THE BASIS OF PERSONAL JURISDICTION .......................................................................................... 4
D. POWER - LONG – ARM STATUTES – SPECIFIC JURISDICTION ............................................................................................... 5
E. POWER - GENERAL JURISDICTION – CORPORATION ........................................................................................................... 10
F. POWER - GENERAL JURISDICTION – INDIVIDUALS – TRADITIONAL ................................................................................ 11
G. POWER & NOTICE - IN REM & QUASI IN REM – PROPERTY – APPLYING INT. SHOE TO PROPERTY ...................... 12
H. CONSENT ......................................................................................................................................................................................... 13
I. NOTICE ............................................................................................................................................................................................ 13
J. FEDERAL JURISDICTION RULES .................................................................................................................................................. 13
K. CHALLENGE PERSONAL JURISDICTION ..................................................................................................................................... 14
II. VENUE .............................................................................................................................................................14
B. VENUE OPTIONS............................................................................................................................................................................ 14
C. TRANSFER OF VENUE ................................................................................................................................................................... 15
III. SUBJECT MATTER JURISDICTION ............................................................................................................16
A. SOURCE ............................................................................................................................................................................................ 16
B. DIVERSITY ....................................................................................................................................................................................... 16
C. SUPPLEMENTAL JURISDICTION.................................................................................................................................................... 17
D. REMOVAL ........................................................................................................................................................................................ 17
IV. ERIE DOCTRINE ...........................................................................................................................................18
A. IN DECIDING AN ISSUE, MUST THE FEDERAL JUDGE APPLY STATE LAW? OR IS SHE FREE TO IGNORE STATE LAW? .. 18
B. ERIE V. RAILROAD V. TOMPKINS ................................................................................................................................................ 18
C. HOW TO INTERPRET ERIE............................................................................................................................................................ 19
V. PLEADINGS – AVOID SURPRISES ...............................................................................................................19
A. OVERVIEW ...................................................................................................................................................................................... 19
B. COMPLAINT & AFFIRMATIVE DEFENSE – RULE 8/9 .............................................................................................................. 20
C. ETHICAL PLEADING, SANCTION, SIGNATURE – RULE 11 ...................................................................................................... 21
D. RESPONSE TIME ............................................................................................................................................................................. 21
VI. DISCOVERY .................................................................................................................................................... 23
A. INFORMAL INVESTIGATION – 11(B)(3) “EVIDENTIARY SUPPORT” – REASONABLE INQUIRY BEFORE FILING
COMPLAINT ................................................................................................................................................................................................ 23
B. MEET & CONFER – 26(F)(2) - DISCOVERY PLAN, TIME LIMITS, CASE MANAGEMENT SCHEDULE, CLAIMS/DEFENSES,
SETTLEMENT .............................................................................................................................................................................................. 23
C. REQUIRED INITIAL DISCLOSURES – 26(A)(1) + DISCOVERY PLAN- 26(F)(3) ...................................................................... 23
D. REQUIRED INITIAL DISCLOSURES – WITNESS EXPERT TESTIMONY – 26(A)(2)................................................................. 24
E. REQUIRED INITIAL DISCLOSURE – EVIDENCE 26(A)(3)(A) ................................................................................................... 24
F. SCOPE OF DISCOVERY – 26(B) ..................................................................................................................................................... 24
G. TRIAL PREPARATION: MATERIALS – 26(B)(3) – HICKMAN V. TAYLOR ............................................................................... 25
H. TRIAL PREPARATION: EXPERTS 26(B) ....................................................................................................................................... 25
I. DISCOVERY TOOLS ........................................................................................................................................................................ 25
J. DISCOVERY SANCTIONS – 37(B) .................................................................................................................................................. 26
VII. SUMMARY JUDGMENT ........................................................................................................................... 26
I. PERSONAL JURISDICTION

A. Overview

Geographical Issue. Forum State (where the suit is brought) must have personal jurisdiction over
the individual.

Personal jurisdiction is the state’s ability to assert power over a defendant in a civil lawsuit.

Types of Jurisdiction

1. In Personam: court exercise power over a person via presence in the state, domicile, or
consent.
a) General: Can sue defendant for any claim arising anywhere
(1) Milliken v. Meyer – individuals can be sued in the state of their domicile for all claims
b) Specific: D can only be sued for claims arising in the forum state

2. In rem: power over property located within the territory/forum state. Suit involves the
property in question.

3. Quasi in rem: court renders judgement for/against a person but limits recovery to the value
of the property within the territory/forum. The suit is brought against the property in order to
get personam jurisdiction.

Determining Personal Jurisdiction

Three Questions to Determine Personal Jurisdiction

1. Is there a traditional base of personal jurisdiction?

2. If there’s no traditional base, does the long-arm statute apply?
3. If no traditional base but long arm statute applies, is its application Constitutional?
a) Two-part inquiry for state courts:
(1) Does the applicable long-arm statute reach the D?
Gibbons v. Brown
(i) If the D does not qualify under the statute, then the analysis stops.
(ii) FL statute required more than one contact, here even though Brown had
sued before in FL, they did not meet the minimum standard required by the
statute.
(iii) Further, could not sneak in via prior lawsuit b/c subject to jurisdiction and
lawful order regarding the same subject matter are not forever.
o In this case, case was over. Once process is done, have to prove LAR
again.

(2) If yes, is exercise of jurisdiction consistent with due process?

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 b) Three-part inquiry for federal courts:
(1) FRCP 4(k)(1)(A): D subject to jurisdiction if he would be subject to general
jurisdiction in the state in which the district court sits.

(2) Does the applicable long-arm statute reach the ∆?

(3) If yes, is exercise of jurisdiction consistent with due process?

B. Traditional Bases for Jurisdiction

1. Territoriality/Sovereignty: state has exclusive PJ over people and property within its
borders (established in Pennoyer v. Neff, reaffirmed in Burnham)

2. Domiciliary: state has jurisdiction over its domiciliary regardless of where they are located
a) You don’t lose domicile until you acquire a new one
b) Physical presence
c) Intent to remain indefinitely

3. Agent: if an agent is acting in the interest of the individual then he carries jd

a) If state can grab agent, is effectually grabbing the individual

4. Consent: methods of consent to personal jd 

a) Express Consent –
(1) consent by contract (Carnival Cruise Lines)
(2) Last word on jd comes out strongly in favor of forum selection clauses
(3) Court leaves some wiggle room to rethink if contractually selected forum is
irrational—“judicial scrutiny for fundamental fairness”

b) Implied Consent
(1) Consent is also given when D fails to assert it as a defense (FRCP 12(b)(2) – must be
asserted early in the trial)

5. Pennoyer v. Neff, U.S. Sup. Ct. (1877)

a) Facts: P/Neff sued D/Pennoyer in Fed. Ct. in OR seeking to recover possession of
land seized in a previous suit.

b) Holding: A state can only obtain in personam jusridction over a non-resident if he is

personally served with process while within the territory of the state.
(1) Constructive notice is not enough
(2) Can obtain in rem jurisdiction BUT must be attached at the beginning of trial.

c) Notes:
(1) state sovereignty – exclusive right over people/things within borders.

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 (2) Three Jurisdiction Bases: presence, property, and citizenship.
(3) Pennoyer Formula:
(power or consent) and notice
(4) Difficult to get In Personam – had to find Defendant within the state.
(5) Due Process Clause restricts power of state governments -> Supreme Court
Boundaries Bind State
(6) Full Faith and Credit: No need respect Virginia judgment in Arkansas if AR did not
have personal jurisdiction

Pennoyer

Power Consent Notice

Carnival Cruise
Over Things Over People Mullane
Line

Shafer assimilates
International Shoe
in rem and in
+ progeny
personam

C. POWER - Expanding the Basis of Personal Jurisdiction

1. How do we apply presence and consent Theory to corporations, which are not per se
located in a tangible place? International Shoe Co. v. Washington, U.S. Sup. Ct. (1945)

a) Facts: Int. Shoe corp w/ salesmen in WA, claimed not to be subject to WA’s jurisdiction
when state tried to collect unemployment taxes.

(1) Int Shoe = incorp. DE & place of business MO – only 13 salesmen in WA; order
sent to MO and then sent to client.

(2) WA sent notice to WA salesmen and to the MO headquarters.

Salesmen not an authorized agent of D
D “not doing business” or present in WA

b) Issue: if a corp. is not chartered subject to states jurisdiction if it has certain minimum
contacts with the state?

c) Holding: A corporation is subject to the jurisdiction of a state if it has certain

“minimum contacts” with that state that make exercise of jurisdiction commensurate with
the “traditional notions of fair play and substantial justice.”

(1) Systematic and continuous contacts subject a corporation to the jurisdiction of

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 that state.
(2) Min. Contacts Test: whether a corporation that does conduct activities within a
state also enjoys the benefits and protection of that state’s laws
Min. Contacts; and
Comports with traditional notions of fair play and substantial justice

d) Notes:
(1) Overturned Pennoyer In Personam , presence TEST is replaced by minimum
contacts for SPECIFIC JURISDICTION.
(2) Spectrum of Possible Contacts w/State

Extent of None Casual/Is Singl Continuou

Contact olated e s but Substanti
Limited al
Juris.
Consequ No No Jurisd. Specific Juris. Gen.
ence Jurisd. Juris.

Left Side = Need Consent, D is only subject to PJ for claims arising out of those
minimum contacts.
Right Side= systematic/continuous contacts, subject D to General Jurisdiction –
the Sup. Ct. has not established where contacts support general vs. specific in
personam jurisdiction.

(3) Averted sovereignty because the “corporation” is a citizen of the state by its
presence.

D. POWER - Long – Arm Statutes – Specific Jurisdiction

1. Ask 2 Questions, when asserting personal jurisdiction. `

a) Is there a statutory basis? A state may grant its court’s jurisdiction up to the
constitutional limit, but it doesn’t have to.

(1) Long Arm Statute – allow jurisdiction to be extended beyond state lines. Two
Kinds:
CA Type: jurisdiction up to and including constitutional limits.

Common Type: Laundry limits over certain things entering contracts,

transacting business in the forum, owning property in the forum state (in rem)

(2) Is it constitutional?
Statutes (and Long Arms) must not exceed the limits of 14th A DP ask how PJ is
authorized by LAS – determine meaning of LAS and then ask if it consistent with
the DP of Const. by applying Int Shoe (min contacts).

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 (i) Due Process Clause Req.
o Service
o Opportunity to be heard

2. McGee v. International Life Insurance, U.S. Sup. Ct. 1957.

a) Facts: P/McGee, a CA resident, beneficiary of life insurance policy issued by

D/Int’l, a TX company, sued in CA St. Ct. when D refused to pay. P won, tried
to enforce j’mt in TX; TX courts refused, claiming CA’s exercise of PJ was
improper.

b) Issue: Does a single act or contact count as minimum contact? Related to the
claim. MAIL

c) Holding: Yes – a state can exercise specific in personam jurisdiction over a

party who has a single contact with that state, provided it gives rise to the
claims and was deliberately directed toward state. Fair Play and Substantial
Justice OK b/c:
(1) D solicited business from CA D
(2) Claim was related to D’s contact
(3) CA had an interest (doesn’t want citizens to be swindled by out of state)
(4) CA convenient forum

d) Notes:
(1) Balance between inconvenience of dragging out of state defendant and the
interest of the state to defend its citizens.

3. Hanson v. Denckla, U.S. Sup. Ct. 1958

a) Facts: Claimants to DE trust filed suit against trustee (DE bank) in FL, claiming
trust invalid under FL law.

(1) Donner, PA resident, established trust with DE bank as trustee. Donner

collected trust’s income; after her death $$ to her beneficiary – she retained
power to change beneficiary any time.

(2) When trust established Donner moved to FL and named two daughters as
heirs. Same day: named third daughter’s two kids as beneficiaries. After she
died, two heirs brought suit against the DE bank in FL, claiming that naming
beneficiaries was invalid under FL law.

(3) While FL action pending, action in DE filed to determine allocation of trust.

FL case decided trust invalid and found for heirs, who tried to use judgment
as res judicata for DE case. DE Ct. held FL Ct. did not have PJ over DE
bank and refused to validate FL holding.

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 b) Issue: Do sporadic contacts count as minimum contact? Claim not related to
the contact.

c) Holding: NO. A state may not exercise jurisdiction over a party if the party’s
contacts with the state are negligible and non-deliberate, and the claim does not
arise from those contacts. Contact between the defendant and the forum
must result in the purposeful availment. Unilateral on P side not enough
to make contact with forum state by D.
(1) The bank never purposely availed of FL laws.

d) Notes:
(1) Contact must result in Purposeful availment of the laws of the forum state

4. World Wide Volkswagen Corp. v. Woodson [JUDGE], U.S. Sup. Ct. 1980

a) Facts: NY family moving to AZ, driving thru OK, got into a car accident there;
tried to sue NY dealer who sold them car, in OK court.

(1) Robinsons bought Audi from P/Seaway VW, dealership in NY. They were
involved in fiery accident in OK. Brought suit in OK against D/Audi
(mfgr), P/Volkswagen of America (importer), P/Worldwide Volkswagen
(distrib), and P/Seaway (retailer).

(2) Seaway & WWV challenged jurisdiction of OK Ct., claiming insufficient

minimum contacts – neither conducted business in OK, employed agents or
advertised there.

(3) OK Ct. found for Robinsons, based on theory of foreseeability – litigation in

OK based on mobile nature of product (cars meant to be driven around).
Seaway and WWV sought writ of prohibition from OK Sup. Ct. against
D/Woodson, the OK Ct. judge – writ denied.

b) Issue: can that state exercise jurisdiction even if D has not deliberately sought
contacts with that state

c) Holding: NO – A state cannot exercise jurisdiction over D who has not

deliberately sough contacts with the state, regardless of fairness and convenience.

(1) Personal Jurisdiction requires D Min. Contact with State.

(2) Min. Contacts = purposefully avail of law and benefit of the state, unless it
interferes with traditional notion of FP & SJ.
Int. Shoe requires fairness factors
(i) Burden Defendant
(ii) State Interest
(iii) Plaintiff Effective Relief

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 (iv) Efficient Solution
(v) Advance Social Policy
(vi) These fairness factors help protect the FP & SJ part of Int. Shoe
However even if all these are met, the Due Process Clause may
sometimes divest the State of its power to render a valid judgment
(i) B/c Due Process Clause requires minimum contacts and would not allow
jurisdiction over people that have not contacts, ties, or relations even if “fair
and reasonable.”
Foreseeability of the product entering the state/stream of commerce is
not a benchmark
Foreseeability of individuals’ conduct being haled into court.
(i) By purposefully availing himself of laws of state it is foreseeable to be haled
into court.
d) Dissent: (Brennan) YES – minimum contacts and fairness, efficiency, and
convenience – accident occurred in OK, witnesses are in OK – should subject
VW to OK jurisdiction. Not inconvenient to defend in OK for corporations.
IT IS FORESEEABLE b/c the nature of the car purposefully injects into
stream of interstate commerce.

5. Burger King Corp. v. Rudzewicz - CONTRACTS

a) Facts: BK sued D (from Michigan) re breach of franchise obligations. D

claimed no jurisdiction because claims did not arise from their contact in FL.
Communication with MI district headquarters, but the communication was with
Miami HQ.

b) Holding: Contact long-term with a corp. in FL, contract stated FL + training in

FL – enough to warrant FL jurisdiction.
(1) If the min. contacts are weak, and the notions of fair play and substance can
bolster this argument - but if you purposefully directed activities, you have
to present a compelling test
Inconvenience is a factor but all lawsuits are inconveniences.

6. J. McIntyre Machinery Ltd. v. Nicastro – Product Liability, Plurality, Stream of

Commerce

a) Facts: Accident, minus 4 fingers operating recycling machine, sued the maker
and distributer of the machine for product liability. J. McIntyre is company in
England. Nicastro is a worker.

b) Issue: May a consumer sue a foreign manufacturer in state court over a product
that the foreign company marketed and sold in the US?

c) Holding: NO. Need to specifically target the forum, it is not enough that
the defendant might have predicted that its good will reach the forum state.

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 NOT FORESEEABILITY
(1) McIntyre targeted the U.S. marketed not N.J., based on N.J. actions not N.J.
expectations.
(i) Against stream of commerce

d) Breyer & Alito Concurrence: Not good to make precedent with this case,
plaintiff’s burden to make case and they did not present alternatives the dissent
did.

e) Ginsburg Dissent: by targeting the U.S. as a whole, the petitioner had targeted
every state sufficiently to subject itself to New Jersey’s jurisdiction.

f) Notes

(1) Following McIntyre, specific jurisdiction over a foreign manufacturer under a

stream-of-commerce jurisdiction theory is unsettled. However, the cases
make clear that downstream awareness or control, volume of product, and
forum-specific contacts play a role in courts' analyses.

7. Abdouch v. Lopez – Int. Shoe & The Internet

a) Facts: Plaintiff's inscribed copy of a book was stolen. The out-of-state

defendants bought the stolen copy from a seller in Georgia and sold it via his
website to a customer not in Nebraska. Plaintiff alleged defendants had violated
her privacy rights by using the inscription in the stolen copy to advertise on
defendants' website. KLB had an active mailing list, but didn’t solicit business
there.

b) Issue: Does selling online create sufficient contact to bring about Personal
Juris.?

c) Holding: No – all of the contacts that were created w/Nebrasksa were

unrelated to Abdouch cause of action. Lopez also did not mean to hurt
defendant. Therefore, Lopez could not have anticipated being brought into a
Nebraska Court.
(1) Sliding Scare Test - Zippo
Considers websites’ interactivity
(i) More interactive, the more likely to have jurisdiction
o Lopez Website very interactive
Nature of the Commercial Activities
(i) How related the causes of action are to the online activity
(ii) Intentional torts require claims purposely directed at forum state
o All of the contacts created by the Website with Neb. not related to
Abdouch’s cause of action.
(2) Calder Effect Test

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 Defendant caused harm, the brunt of which was suffered at the forum
and which the defendant expressly aimed to be suffered in that forum.
(i) D did not expressly aim tortious conduct at Nebraska. Placement was for the
word. D didn’t know P was a resident of Neb.

8. Bristol-Myers Squibb Co. v. Superior Court – Limiting Class Actions

a) Facts: A group of plaintiffs, most of whom are not California residents, sued
Bristol-Myers Squibb Company (BMS) in California state court, alleging that the
pharmaceutical company's drug Plavix had damaged their health. BMS is
incorporated in Delaware and headquartered in New York, and it maintains
substantial operations in both New York and New Jersey. Although it engages in
business activities in California and sells Plavix there, BMS did not develop,
create a marketing strategy for, manufacture, label, package, or work on the
regulatory approval for Plavix in the State.

Originally a general jurisdiction case – but after Daimler it had to change. CA Ct

of Appeals then granted PJ under Specific Jurisdiction.

b) Issue: Did the state court have specific jurisdiction over the claims of non-
residents?

c) Holding: No – Specific Jurisdiction not proven for the non-CA residents. It

doesn’t matter that BMS was connected to CA (minimum contacts). The
plaintiffs have to have a link for Specific Jurisdiction
The non-CA residents did not have a link to the damage in CA.
Burden on defendant is the most important fair factor

E. POWER - General Jurisdiction – Corporation

1. Overview
D may have contacts with forum state related or unrelated to c/a. Related contacts
weigh more heavily in favor of jurisdiction than unrelated, but unrelated contacts (if
continuous and substantial) may support general jurisdiction … but even a single contact
may support jurisdiction when the c/a arises out of the contact, or even an act
committed outside the state that has consequences w/in the state.

2. Goodyear Dunlop Tire Operations, S.A. v. Brown

a) Facts: Brown sued for damages related to bus accident that happened in France
in N.C. State Court.

b) Holding: For general jurisdiction, a court may exercise this over a foreign
corporation “to hear any and all claims against it” when the affiliations with the
state are “so continuous and systematic” to make it essentially at home with

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 that state
(1) Entering the stream of commerce is not a good enough reason for General
Jurisdiction.

c) Contact is not just “continuous activity” of some sort, D has to be

essentially at home in the desired forum
(1) Perkins – Phillippine mining corporation moved to Ohio CEO and its
decisions handled there GOOD
(2) Helicopteros – insufficient activity by Colombian company, heli crashed in Peru
BAD
(3) Incorporation & Principal Place of Business examples
d) Notes
(1) Stream of Commerce not good enough for general jurisdiction

3. Daimler AG v. Bauman (Ginsburg) – footnote 20 – no need for reasonless

reason

a) Facts: Parent company Daimler, fucked up shit in AR, tried to sue in Cali
Court, MB Argentina wholly owned by Daimler, plaintiff tried to sue MBUSA –
as agent of Daimler in the US, however MBUSA is an independent contractor

b) Issue: Same Question as Goodyear, can U.S. court entertain a claim brought by
foreign plaintiffs against a foreign defendant based on events occurring entirely
outside of the United States?

c) Holding: Accordingly, the inquiry under Goodyear is not whether a

corporation’s in-forum contacts can be said to be in some sense “continuous and
systematic,” it is whether that corporation’s “affiliations with the State are so
‘continuous and systematic’ as to render essentially at home in the forum State.”
(1) The example she gave was Perkins footnote 19
(2) Further, contact must be viewed in context with its extensive nationwide and
worldwide operations. If not, General Jurisdiction easily available. A
corporation like Amazon can’t be home @ all the places. DISAGREE.
(3) Footnote 20 – if at home, no need to do reasonable inquiry response to
Sotomayor
Daimler is not inc. in CA
Daimler does not have principal business there
People = Domicile for General Jurisdiction = in dicta

d) Sotomayor Dissent: Should not look at worldwide operation, deny jurisdiction

based on foreign everything,

F. POWER - General Jurisdiction – Individuals – Traditional

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 1. Burnham v. Superior Court – Plurality

a) Facts: Husband traveled to CA on business and to visit his kids. He was

personally served with process in a divorce action filed in CA state court by his
wife.

b) Issue: Whether due Process Clause of 14th denies CA court jurisdiction over
nonresident, who was personally served while in the state for unrelated activities
(General Jurisdiction).

c) Scalia Holding: It does not deny. CA can exercise jurisdiction over

nonresident personally served in the state. Tag Jurisdiction.
(1) This is about physically present person not an absent person.
(2) Tradition states this is OK

d) Brennan Concurrence: It’s OK but history is not the only factor, Shaffer says
all the rules must meet due process. And History is cool but so is Int. Shoes
which min. dictates the defendant had sufficient contact. VOLUNTARY.
(1) Without transient jurisdiction, an asymmetry would arise: a transient
would have the full benefit of the power of the forum State’s courts as a
plaintiff while retaining immunity from their authority as a defendant.
e) White Concurrence: presence had to be intentional

Shaffer v. Heitner
Everything looked at via Int. Shoe

G. POWER & NOTICE - In Rem & Quasi in Rem – Property – Applying Int. Shoe to
Property

In Rem: Ownership of property

Quasi In Rem: Using property to sue over other shit

1. Shafer v. Heitner

a) Facts: Heitner, nonresident of DE, freezes the stock of Greyhound execs in DE

by attachment (in DE court) in shareholder’s derivative suit (FCRP 23.1). Execs
claim DE ct. has no jurisdiction, b/c no minimum contacts.

b) Holding: Even if D has property w/in the forum state, the state cannot attain
PJ if there are no minimum contacts. Gaining jurisdiction by grabbing
property is no longer valid. Pennoyer’s requirement of grabbing property +
notice = jurisdiction is struck down.
(1) Quasi in Rem + In Rem -> Need minimum contacts
(2) Powell = keep quasi in rem, easy to predict
Brennan: I think they purposefully availed themselves

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H. Consent

1. Carnival Cruise Lines, Inc. v. Shute

a) Facts: Lower court refused to enforce forum selection clause in tickets issued
by Carnival Cruise. Form Contract. “Negotiated” (walk away).

b) Issue: Can you enforce a form contract forum shopping clause?

c) Holding: Yes - A reasonable forum selection clause is enforceable to

establish consent to jurisdiction.
(1) Check for fundamental fairness
FL = HQ + cruises depart from FL ports
No fraud or overreach
Plaintiff could have rejected (not the same for emergency services)
d) Implied Consent: Hess – driving ->

International Shoe – contacts minimum contacts met, implied consent is

a legal fiction
I. Notice

1. See Burnham (I.F.) – personal service OK - presenece needs to voluntary &

presence needs to be intentional

2. Mullane v. Central Hanover Bank & Trust Co. – Constructive Notice OK but
Reasonable

a) Facts: 13 smaller trustees were pooled into one fund for investment purposes.
The various trustees were notified, pursuant to NY statute, by publication in a
local paper. P/Mullane, having been appointed by the court as special guardian,
made a special appearance to object to the notice, contending that the trustees
should have been notified by mail.

b) Holding: notice by publication (constructive notice) fails to comply with due

process when the names and addresses of the parties are known
(1) Perfection not required, just reasonable.

J. Federal Jurisdiction Rules

1. U.S. has by rule or statute has imposed territorial limits upon the exercise of personal
jurisdiction by federal courts, mainly in FRCP 4(k).

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 a) FRCP 4(k)(1)(A): fed ct. may only exert PJ over D when the forum state would
be empowered to do so.

b) FRCP 4(k)(1)(C): permits service on D subject to federal interpleader jurisdiction

(§ 1335).

c) FRCP 4(k)(1)(D): permits service on D when authorized by another federal

statute.

K. Challenge Personal Jurisdiction

1. Traditional common law approach: make a “special appearance” to specifically

contest PJ, but D must be careful NOT to contest any other issues of the pending action
otherwise he might be deemed to have consented to PJ.

2. FRCP 12(b)(2): making a motion to dismiss on grounds of lack of PJ.

II. VENUE

1. All venue rules are statutory; there is no constitutional analysis to be done. U.S.C § 1391(b)
sets it all up.

2. If P files suit in improper venue, D must respond within 21 days per [FRCP 12(a)(1)(A)(i)]
under FRCP 12(b)(3) or waive the defense.

B. Venue Options

1. 28 U.S.C. §1391(b) – venue options

o … (1) -if all Ds in the same state -> any district where any D resides [residential venue]
 Venue is also proper where ALL Ds reside***
o … (2) - a district where a substantial part of the events underlying the claim took place
[transactional venue]
 Thompson v. Greyhound – event, bus transfer happened in the Southern
District of MS, venue can be established via (2) so 1391(b)(3) no apply.
o … (3) – fallback venue, almost never applies - if (1) and (2) no good then any judicial
district where D subject to PJ.

2. 28 U.S.C. §1391(c) – Residency

o … (1) - a human, including lawful alien for permanent residence, resides in the district
in which she is domiciled
 Can only reside in 1 home @ a time
o … (2) - a corporation resides in all districts in which they would be subject to personal
jurisdiction as D or only in principal place of business aka “nerve center” as P
 a business might reside in several, because it may be subject to personal

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 jurisdiction in several districts
o …3 – a non-U.S. resident sued in any judicial district
 Non-clear how to apply to illegal alien, either 1391(c)(1) or 1391(c)(3)

3. 28. U.S.C. §1391(d) – Corporation – Residency in States with Mult. Districts

o to determine residency for corporation in states with multiple districts find any district
which would have PJ at the time of suit, if no one qualifies than go with the one with the
most contact.

C. Transfer of Venue

Reasons to transfer venue (1) correct an error; and (2) original venue is proper but there is a better one.
Can only transfer venue within the same judicial system i.e.

o Fairfax, VA -> Richmond VA = Good

o Fairfax, VA -> Baltimore, MD = Bad
o USDNY -> Federal Hawaii = Good

In the federal system, there are two general transfer statutes: 28 U.S.C. § 1404(a) and § 1406(a)
o Transferor to Transferee

1. 28 U.S.C. § 1404(a) = When Original Venue Proper.

o Permits transfer to another district for “the convenience of parties and witnesses, in the
interest of justice”
o Case in SDNY but has VA law as controlling, better to transfer to East Virginia District
 Send to the “center of gravity”
o The party seeking transfer (usually D) has the burden of convincing the court to
override P’s original choice of venue.
o Or all parties have consented.

2. 28 U.S.C. §1406(a) = When Original Venue Improper.

a) Dismiss when it is “wrong” or “improper” forum
(1) Atlantic Marine Construction Co. v. United States District Court - the proper
procedure to enforce a forum selection clause is through a motion to transfer under 28
U.S.C. 1404(a)
b) Transfer to any Venue it could have been brought in the “interest of justice”
(1) Thompson v. Greyhound – Greyhound asks to dismiss even though can transfer
venue, na, in the interest of justice we transferring not dismissing.

3. Forum Non Conveniens (Inconvenient Forum)

a) When another court is more appropriate for litigation than the present court. The court
dismisses the case or stays to compel Plaintiff to file in the proper forum.

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 (1) Relevant when there are different systems of justice (state -> fed)
(2) Piper Aircraft v. Reyno
Supreme Court review is only if it was improperly applied not de novo
There should also be an adequate forum to hear the case
o Would have to apply Scottish law
P choice should rarely be disturbed, unless
(i) Private: Ease of access to proof, 3rd parties joining
(ii) Public: Admin. Difficult re court congestion, local interest in litigation,
home with the law governs the dispute, avoiding conflicts of law, burdening
citizen to unrelated forum the jury duty
o Scotland not a better venue but still justice can get served (unlike Bolivia)
(3) Forum Clause – Enforcing Venue
Atlantic Marine Construction Co. v. United States District Court (Alito)
(i) Proper procedure for forum selection clause is 1404(a) within the federal
system.
(ii) Unless extraordinary circumstances. For state/foreign forums, the transfer
has to be made under Forum Non Conveniens – apply same analysis

III. SUBJECT MATTER JURISDICTION

Separation between state and federal court.

Fed. Courts have limited jurisdiction, State courts have general jurisdiction.

A. Source
1. US. Constitution Article III- mandates share of power b/w court and congress, requires only
a Supreme Court
2. US Constitution Article III §2 – authority that congress can grant to lower federal courts.
a) U.S.C. 28 §1331 – Federal Questions (arising from Fed. Law)
(1) Louisville & Nashville RR v. Motley – if no diversity, question has to arise from
federal law, not the potential defenses presented
b) U.S.C. 28 §1332 – Diversity Cases – at the time of lawsuit
c) U.S.C. 28 §1367 – Supplemental jurisdiction
d) U.S.C. 28 §1441 – Removed to federal ct.
3. Courts have duty/burden of making sure they SMJ
B. Diversity
1. U.S.C. 28 §1332(a) – Diversity – 2 requirements: (not by constitution)
a) Amount in controversy more than $75K
b) Complete Diversity
(1) Redner v. Sanders – Citizen = U.S. domiciled- Presence + intent to remain indeff.
(2) 1332(e) includes PR & Guam as States
(3) Need to have a US citizen for foreigners 1332(a)(2)
(4) Caretaker/Parent/Executor – Citizen of where the subject is domiciled – 1332(c)(2)

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 c) Corporation citizenship
d) 1332(c)(1) – incorporation + principal place of business
(1) Hertz Corp. v Friend – nerve center – typically HQ – where you make decisions, not
just board meetings
C. Supplemental Jurisdiction
1. 1367(a) - grants
a) Original Jurisdiction?
(1) Need to be good in Fed. Court 1st
b) Same Constitutional Case?
(1) Common Nucleus of Operative Facts/Transactional Ocurrence
(2) Same facts, to prove both
2. 1367(b) – takes away

a) What is the basis for original jurisdiction?

(1) Solely 1332? – move to next questions –
(2) other reasons go to 1367c or 1367d

b) If under 1332 (diversity) is Supp. Jurisdiction violating 1332?

(1) i.e. diversity or the amount in question or diversity argument
Yes?
(i) Next Question
No?
(i) Does not take away Supp. Jurisdiction

c) If Supp. Juris. Inconsistent with 1332, then ask whether supp. Claims fall under one of
the joinder scenarios in 1367(b)
(1) By plaintiffs against persons made parties under FRCP 14, 19, 20, or 24.
(2) By persons proposed to be joined as plaintiffs under FRCP 19.
(3) By persons seeking to intervene as plaintiffs under FRCP 24.
ANY OF THESE SCENARIOS NO MORE SUPP. JURIS.

3. 1367 (c) - Punt

a) novel or complex issue of State law;
b) state claim more important than the fed. Claim;
c) district court has dismissed claims related to fed law;
d) other compelling reasons
(1) In re American Mortgage Co. Mortgage Lending Practices Litigation - Even though knew,
confident he could handle the case
(2) Szendrey-Ramos v. First Bancorp – PR Court rules over conduct of its attorneys

D. Removal

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 State to Federal –
1. § 1441 a – If original jurisdiction, defendant can move to Federal court
2. §1442 b – Exception = cannot remove a diversity case, if any defendant is a citizen of the
forum – in state defendant rule.
3. 1446b – Remove within 30 days of service of process
4. 1446(b)(2)(a) - All defendants who have been served with process have to agree about
removal.
5. 1446(b)(2)(a)(c) - 30 days from removal starts afresh with each newly served defendant.
6. 1 year to remove from beginning
a) Caterpillar v. Lewis – If you improperly remove @ the beginning, but at the end OK
then judgement still good. – Ginsburg
(1) Judicial Economy v. Procedural Rights
(2) Judges will know how to apply the standard in the future

IV. ERIE DOCTRINE

A. In deciding an issue, must the federal judge apply state law? Or is she free to ignore
state law?

Lex Loci – Law of the place of the tort

 Federal Rules
o Where there is no relevant Federal Rule or other Rule pursuant to the Enabling Act and the federal rule at
issue is wholly judge-made, Rules of Decision—construed in Erie and York—control
o Where the matter in issue is covered by a Federal Rule, the Rules Enabling Act constitutes the relevant
standard. (Hanna)
o There is a real difference between “substance” under Erie and under Rules Enabling Act.
 Erie bars any federal court attempt to create state substantive rights; Rules Enabling prohibits
abridgement, enlargement, or modification of substantive rights
 Courts could not create a Rule with one statute of limitations
 Congress could change statutes of limitations for federal statutes but not for state laws
(10th Amendment)
 Hanna Analysis
o (1) Is there a Federal Rule, given its plain meaning, that is sufficiently broad to control the issue?
 If not, then Erie / York
o (2) If so, is the Rule within the scope of Rules Enabling Act (does it abridge, enlarge or modify a
substantive right)?
o (3) If not, does the rule exceed its constitutional grant of power under due process and Necessary and
Proper?

B. Erie v. Railroad v. Tompkins

1. Nothing in the constitution grants federal courts power to declare general common law.
2. There is no such thing as general federal law, if it’s not something that is about the federal
government, go with State law.
3. Except in matters governed by the Federal Constitution or by Acts of Congress, the law to
be applied in any case is the law of the state.
a) Justice Reed: fed court must follow “substantive” state law but can follow “procedural”

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 federal law.
4. Goals of Erie (1) prevent forum shopping and (2) inequitable administration of the law

C. How to Interpret Erie

1. Guaranty Trust Co. v. York – When the state statute affects the very possibility of recovery
(as a statute of limitations does in this case) the statute bears vitally, and not merely formally or
negligibly, on the State-created right, and the federal court should follow state law
a) Outcome Determinative Test: whether or not disregarding state law would
significantly affect result
b) Fed Court is an extension of the state court at least in diversity cases.

2. Byrd v. Blue Ridge – when issue is procedural and no fed rule or statute is on point,
balance York’s outcome-determinative test with federal and state interests, who has the better
reason state or federal government?
a) Can’t just be outcome, or else always follow state policy if determined
b) Evaluation of significance of state policy
c) Countervailing federal consideration
d) Probability of outcome differential

3. Hanna v. Plumer – federal rules trump state policy when they are both applicable and don’t
violate the Rules Enabling Act
a. Erie was about avoiding forum shopping and avoid inequitable administration of the law
b. May not abridge, enlarge, or modify the substantive rights of any litigant
c. Court holds that Rule 4d (service of process) neither exceeds the mandate of the Rules
Enabling Act nor the Constitution and is therefore the standard against which district
court should measure adequacy of service
(i) Is the law (if rule then Rules Enabling Act) constitutional? YES
o Rule under REA -> Practice and Procedure?
o Is the procedure constitutional?
o If both yes, than apply federal law
d. Harlan Concurrence (in result): Erie more than just avoid forum shopping and avoid
inequitable administration of justice, not automatic to give Rule precedence over State
Rule have to apply some sort, federalism too much power to Fed Government

When you look at an Erie-influenced case, it’s as if you’re looking at it through four different lenses:
1. Erie lens = about the supremacy of state substantive law
2. York lens = about outcome-determination
3. Hanna lens = about collision/conflict of fed and state laws
4. Byrd lens = about the weight of state policy

V. PLEADINGS – AVOID SURPRISES

A. Overview
1. Avoid surprises D: be aware of what is alleged against him; P: be aware of the defenses D
intends to use

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 2. Pleading are not the same as complaints.
a) Rule 7a = Pleadings = Answers to Complaint or Complaint;
b) Rule 7b (1) = Motion = Request to the Court

B. Complaint & Affirmative Defense – Rule 8/9

1. Conley v. Gibson – not set of facts rule. (Probable)

2. FRCP 3 – a civil action is commenced by filing a complaint with the court

Requirements

3. FRCP 8(a)(1): statement of subject matter jurisdiction (FQ, diversity, supplemental)

4. FRCP 8(a)(2): short and plain statement of claim

a) Bell v Twombly 2007 brought suit against against phone companies saying that that
they were fixing prices. Ct says this could be done because it’s best for business or not
because of conspiracy. Sup Ct says that claim must state enough facts to make claim
plausible on its face.
(1) Raise standard to plausibility from conceivability in antitrust cases
b) Ashcroft v. Iqbal
(1) Factual plausibility to defeat 12(b)(6) – factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
(2) Use judicial experience
(3) Strip away conclusions from fact (ex. Racism)
(4) Souter Dissent: Not about probably true, it must take as true, exception being
extreme like aliens, or unicorns
(5) Breyer Dissent Concurrence: There are tools for discovery to not be burdensome.
(6) See Jones v. Brock – Rule changes should only be done via Rule Committee
c) Exceptions:
(1) FRCP 9(b): circumstances of fraud/mistake must be pleaded particularly
Stradford v. Zurich
(i) Intent/mind may be alleged generally
(ii) Particularly = time, place, nature of fraud
(iii) Fraud threatens contract, easy to plead mistake takes away from contract
(iv) When there is no prior opportunity to re-plead, a court may grant a litigant
who has suffered a dismissal under Rule 9(b) leave to amend so that they
may conform their pleadings to the rule. FRCP 15(a) “amend as justice
requires”
(2) Use 12(e) to challenge heightened standard

5. FRCP 8(a)(3): demand for judgment (or “prayer”)

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 6. FRCP 8(d)(1): each allegation of the pleading shall be simple, concise, and direct.
7. FRCP 8(d)(2): Duplicity is allowed and inconsistencies in pleadings

8. FRCP 8(c): Affirmative Defenses – burden of proof on the party availing

a) Jones v. Brock – prisoner case, burden of pleading affirmative defense on defendant
(1) Rule changes should only be done via Rule Commitee

C. Ethical Pleading, Sanction, Signature – Rule 11

.
1. FRCP 11(a) - Signature & Phone Number, & Email Adresss Required of Attorney
2. FRCP 11(b) – Sign means you guarantee (ORAL MOTIONS NOT COVERED IF FIRST
TIME HOWEVER LATER ADVOCATES DOES INCLUDE)
a) not for harassment or delay
b) not bs to change the law or actually warranted by current law
c) allegations based on facts (can prove during discovery)
d) denials are based on facts (can prove during discovery)
3. FRCP 11(c)(1) – if you lie about 11(b) than court can sanction associate + the firm
4. FRCP 11(c)(2) – Motion for Sanctions under 11(b) + Served via Rule 5, have 21 days to
correct – safe harbor
a) Christhian v. Mattel – tried to convince frivolous lawsuit violated 21 day safe harbor
5. FRCP 11(c)(3) – Sua Sponte ask why conduct not violation
6. FRCP 11(c)(4) – sanction must deter conduct may be monetary $ to court or movant or non
monetary directives
7. FRCP 11(c)(5) – not money if 11(b)(2) violation, on its own unless 11(c)(3) aka tell me why
you didn’t break the rule order went out
8. FRCP 11(c)(6) – Explain why you got sanctioned
9. FRCP 11(d) – NOT FOR DISCOVERY
10. THESE RULES ARE TO ENSURE YOU DO YOUR RESEARCH
a) Walker v. Norwest Corp. – not the role of the court to do your research for you (it
would be really hard to identify citizenship of all defendants)
11. Signed documents filed with the court, separate motions, safe harbor, strategic
considerations, the courts can sanction sua sponte (own accord).

D. Response Time

Response is required 21 days or extension granted – FRCP 12(a)(1)(A)(i)

If you use your 12(b)’s motions before answering and fail you have 10 days to answer 12(a)(4)(A)

Defendant can ask more time to responds under FRCP 6(b) – for good cause.

Main Break Down:

1. FRCP 12 - Pre-Answer Motions
a) Use It or Lose It – 12(b)(2) – (b)(5) are all subject to lost per 12(h)(1)

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 (1) 12(b)(2) – Lack of Personal Jurisdiction (burden proof plaintiff) – Can resolve with
Proper Removal
W/o prejudice – judgment not on the merits
(2) 12(b)(3) – Improper Venue – Impropert Removal
(3) 12(b)(4) – Insufficient Process
(4) 12(b)(5) – Insufficient Service of Process
(5) Can add 12(b)(1) – 12(b)(7) – in answer not just a pre-answer motions under 12(b)

b) 12(b)(6) – failure to state claim MTD

(1) Haddle v. Garrison – when applying 12(b)(6) the court must assume that the facts
alleged by the plaintiff are true AND inquire whether there is a substantive violation of
the law
(2) Bell v Twombly 2007 - Raise standard to plausibility from conceivability in antitrust
cases
(3) Ashcroft v. Iqbal - Factual plausibility to defeat 12(b)(6) – factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct; Use judicial experience & Strip away conclusions from fact (ex.
Racism)
(4) Souter Dissent: Not if probably true, it must take factual claim as true, exception
being extreme like aliens, or unicorns
(5) Breyer Dissent Concurrence: There are tools for discovery to not be burdensome.
(6) See Jones v. Brock – Rule changes should only be done via Rule Committee,
affirmative defense via burden of proof

c) 12(c) – agree on facts after pleadings, and applicable law in question is the issue, similar
to 12(b)(6)

d) 12(e) – motion for a more definite statement – not normally used anymore, get info via
discovery, 12(b)(6) more important + if you grant 12(e) akin to saying that 12(b)(6) would
not pass

e) 12(f) – strike, acts like a 12(b)(6) for a single defenses + for hurtful shit

f) 12(g)(2) – requires defendant who makes a preliminary motion under Rule 12

consolidate all 12(b) defenses or risk losing per 12(h)(1) & 12(h)(2) -12(h)(3) are exceptions
(1) 12(h)(3) – 12(b)(1) subject matter jurisdiction can never be waived
(2) 12(h)(2) – legal defense (consent/assumption of risk) and 12(b)(6) not waived if not
included in original answer and can be raised via 12(c), other pleadings, or at trial
If pleadings closed, ask to amend via Rule 15 to get affirmative defense

2. FRCP 8 – Answer

a) 8(b)(6) – anything not denied is admitted be careful with general denial, qualified general
denial most of a paragraph or paragraph

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 (1) Zielinski v. Philadelphia Piers, Inc – specific in your denial of allegations.
b) 8(b)(5) – allowed to say I don’t know = to denial
(1) “Insufficient to form belief”
c) 8(b)(4) – admit part of an allegation true, and specify what you don’t agree
d) 8(c)(1) – must claim all affirmative defense or waived at the time of answering
(1) Jones v. Brock – affirmative defense burden on the D
(2) To answer affirmative defense, wait for court order to reply 7(a)(7)

3. FRCP 15 – Amending an Answer

a) 15(a)(1) amend once – no permission
(1) 15(a)(1)(A) = within 21 days of serving plaintiff
(2) 15(a)(1)(B) = within 21 days defendant
b) 15(a)(2) – amend with permission of opposing party or with court permission (court
should do so when justice so requires.
(1) Burden is on party opposing the amendment to demonstrate prejudice– Beeck v.
Aquaslid ‘N’ Dive Corp.
(2) Court should also check if bad faith
c) 15(a)(3) – 14 days to amend
d) 15(c) – when statute of limitations passed and want to date using original filing date:
(1) 15(c)(1)(A) – per statute
(2) 15(c)(1)(B) – claim came from the same conduct
(3) 15(c)(1)(C) – New Defendant and Relate Back
(i) Already has to pass via 15(a) or 15(b) which is amended at trial
(ii) 15(c)(1)(B);
(iii) Not prejudice of its merits; and
(iv) Should be aware of the litigation
o Bonerb v. Richard J. Caron Foundation – p 446

VI. DISCOVERY

Timelines
Filingservice26(f)(2) meet & confer[14 days] 26(a)(1) required disclosures + 26(f)(3)
discovery plan[7 days] 16(a & b) scheduling conference and order – THIS IS A MUST

A. Informal Investigation – 11(b)(3) “evidentiary support” – reasonable inquiry before filing

complaint

B. Meet & Confer – 26(f)(2) - Discovery plan, time limits, case management schedule,
claims/defenses, settlement

C. Required Initial Disclosures – 26(a)(1) + Discovery Plan- 26(f)(3)

1. Can’t begin before 26f conference. You can send, but the clock does not start until 26f

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 conference per 24(d).
2. 26(a)(1)(A) – without discovery request info that may use to support their claim, info
reasonably available to witnesses
a) (i) – name, address, phone number relevant people with information
b) (ii) – Evidence Copy or Descriptions in possession even ESI
c) (iii) – Damage Calculation
d) (iv) – insurance agreement from defendant
3. 26(a)(1)(B) – exceptions
4. 26(a)(1)(C)- 14 days, from initial conference
5. 26(e)(1) – info that is available and supplement as needed – even if no disclosures, shitty
disclosures, or fully investigated

D. Required Initial Disclosures – Witness Expert Testimony – 26(a)(2)

1. 26(a)(2) – Expert Testimony Disclosure – WITNESS RULE
a) 26(a)(2)(A) – identity of witnesses discloses
b) 26(a)(2)(B) – if expert, then must submit a written report
c) 26(a)(2)(C)(ii) – fact witness, no report but summary of facts and opinions
d) 26(a)(2)(D) – Time for Witness & Expert Disclosure at least 90 days before trial
(1) 26(e)(2) – supplement as needed witness report

E. Required Initial Disclosure – Evidence 26(a)(3)(A)

1. Evidence to be used, 1 month from trial
a) Objections 14 days – 26(a)(3)(B)

F. Scope of Discovery – 26(b)

1. 26(b)(1) – nonprivileged, proportional, relevance, need not be admissible
a) Relevance: Favale v. Roman Catholic Diocese of Bridgeport: law suit was about
sexual harassment; cannot request documents regarding D anger issues as they are not-
relevant to the claim.
b) Proportionality: access to information, burden v. benefit.
(1) Gordon v. T.G.R. Logistics: Easy of access info alone is not sufficient to allow
discovery; allowing all social medial history may create further problems, and therefore
should be limited to the posts material relevant to the claim. Not proportional all FB
posts however, FB post after date and related OK
(2) Cerrato v. Nutribullet, LLC: Requesting all accident reports and consumer reports
is overbroad and disproportional, need to add specify the defect
2. 26(b)(2)(B) – limits electronic discovery if hard to access b/c $ or undue burden
(1) Wagoner v. Lewis Gale Medical Center LLC – D choosing expensive e-storage is
not reason to say it is disproportional
3. 26(b)(2)(C) – limit frequency or extent to discovery
a) i. unreasonable cumulative
b) ii. Ample opportunity to obtain the information
c) ii. Outside of the scope 26(b)(1)

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G. Trial Preparation: Materials – 26(b)(3) – Hickman v. Taylor [attorney work product &
mental impressions of lawyer] – notes from lawyer
1. 26(b)(3)(A) - Usually not discoverable if prepared for litigation unless they apply via
26(b)(1), substantial need, & hardship to obtain equivalent
a) Includes drafts of any expert report 26(b)(4)(B)
b) Privileged or Work Producti? -> Attorney work product and communication
(1) 26(b)(5)(A) – privilege claim must tell the other what it is and state privilege via
privilege log
(2) 26(b)(5)(B)- CLAWBACK but also maybe waiver via FRE?
2. Previous Statement

H. Trial Preparation: Experts 26(b)

1. 26(b)(4)(A) - Testifying Experts may be deposed after submitting report
2. 26(b)(4)(D) – Non-Testifying Experts protected, unless 35(b) or exceptional circumstances
a) Chiquita International Ltd v. M/V Bolgero – witness had technical knowledge, but
nothing stopped D from inspecting the boat, they messed up.
b) Thompson v. The Haskello Co. – No other way for D to access the information
highly probative case, qualifies as exceptional circumstance – psychological test immediately
after sexual harassment

I. Discovery Tools
1. Deposition - Rule 30 Oral Examination & Rule 31 Written Examination (rare + recorded
answers)
a) Deponent – must testify under oath, can depose anybody even nonparty 30(a)(1), to get
nonparty have to subpoena Rule 45, subpoena can include documents request, for parties
notice of deposition can include a Rule 34 request to produce documents
b) 30(a)(1)(ii) - Can’t depose 2x without court order
c) 30(a)(1)(i) – Cant’ depose more than 10 ppl w/o court order

2. Interrogatories - Rule 33 Response & Q’s Written

a) 33(a)(1) – 25 Qs & Interrogatories ONLY TO PARTIES
b) 33(b)(2) - days to respond
c) 33(b)(3) – answer all
(1) 33(b)(4) – can object but have to be specific
d) 33(b)(4) – produce business records (1) tell where to look; and (2) enough time to review

3. RPD – Rule 34 – Documents, E-Info, Tangible Things, Property

a) 34(a)(2)(A) = Respond with 30 days in writting – agree or object
b) Only from other parties
c) 34(c) – can request documents, and same things but via Rule 45 subpoena

4. Medical Examination – Rule 35

25
 a) Court Order needed
b) 35(a)(1) - Medical condition in controversy + good cause 35(a)(2)(A)

5. RFA – (Rule 36)

a) 30 days to Admit/Specifically Deny/Don’t know w. rsnbly inquiry;
(1) If fail to respond, sanction with 37(c)(2)

J. Discovery Sanctions – 37(b)

1. 26(c) – protective order b/c overly burdensome, expensive, work product protection
a) Court can limit discovery
(1) Rengifo v. Erevos Enterprises, Inc: Credibility alone does not outweigh the
chilling effect of revealing one’s immigration status. Other ways to retrieve the same
information. Protective order is proper.

2. Answers some questions, but objects to others

a) Motion to Compel Discover 37(a)(3)
(1) If you don’t comply with order, 37(b)(2)

3. Fails to respond completely [Depo, answer questions]

a) Seeking Discovery? Go with 37(d) – no need to compel discovery

4. Failure for initial disclosure or update/ disclose

a) Rule 37(c): Party not allowed to use information or witness if fail to comply w. 26(a) or
(e)[supplement], unless, failure was substantially justified or is harmless. May compel to pay
fines, let the jury know of mistakes, or 37(b)(2)(A)(i)-(vi).

5. Spoliation – destruction or significant alteration of evidence

a) FRCP 37(e) – Failure to Prevent Electronically Stored Information
(1) Zubulake v. UBS Warburg LLP
Litigation Hold – in anticipation of litigation preserve documents
Adverse inference instruction:
(i) control over evidence
(ii) records destroyed with a culpable state of mind
(iii) destroyed evidence was relevant

VII. SUMMARY JUDGMENT

A. Introduction

1. Grounded in common law, now in rule 56.

2. Can a case be decided before we get to trial? Three points at which a case can be decided
before trial:

26
 a) D defaults  judgment for P – Rule 55
b) Motion to dismiss on the pleadings under various provisions of FRCP 12
c) Summary judgment

3. Summary judgment is the “gate to trial” – SJ is a tool that serves the purpose of providing
swift justice while respecting due process, screening out those cases that do not require trial by
jury – SJ “shall be rendered if … there is no genuine issue as to any material fact and …
the moving party is entitled to judgment as a matter of law.” May grant.

a) Houchens v. Amerian Home Assurance Co. – he disappeared and VA law says he died
however we can’t assume he died “accidentally” -> probability v. plausibility, plaintiff has the
buden to proof elements death accidental = legal conclusion
b) Differences between SJ and 12(b)(6) motion (motion to dismiss for failure to state a
claim):

(1) Timing: motion for SJ follows discovery, whereas a motion to dismiss follows
pleadings
(2) Different “hurdles”: P can get by a 12(b)(6) as long as he states a claim upon
which relief can be granted. Discovery puts facts in dispute, or shows facts are not in
dispute. Neither party can get by SJ unless it is shown that there is a genuine issue of
material fact.
(3) Decision maker: in SJ, the case is taken away from the jury as factfinder: since there
are no facts in dispute, the only issues left are matters of law to be decided by the judge.
Generally Ps want the case to go to jury trial; Ds want the case to be decided by the
judge. The judge, however, at this point decides whether the jury should hear the case –
judge is the “keeper of the gate”.
(4) If the plaintiff does not have enough evidentiary support for claim, it is enough to
grant summary judgment for D – Celotex Corp. v Catrett

4. A material fact is one which will affect the outcome of the case, and a material fact raises a
genuine issue if a reasonable jury could reach different conclusions about that fact.

B. Procedural basis: FRCP 56

a) FRCP 56(a): For claimant – may move for SJ any time after 20 days from
commencement of the action, for all or part of the claim.
b) FRCP 56(b): For defending party – may move for SJ any time
c) FRCP 56(c): Motion and proceedings – after one party has moved for SJ, judgment is
rendered if the pleadings, depos, and any affidavits, etc., show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.
d) FRCP 56(d): Case not fully adjudicated on motion – can grant partial SJ.

27