Service of Process 03/11/2010 17:03:00

1) The Constitutional Requirement of Notice:

a) The Due Process Clause of the 14th Amendment requires proper nexus and proper notice for a court to
adjudicate over an individual within their due process rights
i) If a defendant is unaware of a suit they will be unable to defend themselves, and that is a violation of
due process.
b) Mullane v. Central Hanover Bank and Trust Co (1950)
i) Established the constitutional requirements of notice:
ii) “notice reasonably calculated, under all the circumstances, to notify interested parties of the pendancy
of the action and afford them an opportunity to present their objections”
(1) must include enough info to tell them where and when the court action is taking place, should
leave them enough time to address the notice, and should be served in the best reasonable way to
likely reach them.
iii) *The key is that it is likely to actually notify—if all else fails may try unconventional methods if that’s
what is actually likely to reach the party.
(1) If a different method is too expensive or too time consuming it may not be required.
iv) For in personam actions notice by publication is generally insufficient, for in rem actions, service by
publication is allowed as long as the contact information of the defendant is unavailable.
2) Service of Process
a) Service of Process notifies the defendant that he has been sued and informs him that the court intends to
proceed to adjudicate his rights.
b) Service of Process = Summons (requirement to go to court) + Complaint (the claim itself)
c) Notice is irrelevant to service.
d) FRCP 4 provides a uniform basis for service of process:
i) 4(a)- Describes the form
(1) Must be signed by the clerk, bear the court’s seal.
ii) 4(b)- complaint must first be filed w the court, then the plaintiff is responsible for serving the other
party.
iii) 4(c)- anyone 18, as long as they are not party to the suit, may issue summons
iv) 4(e)- Means of service:
 (1) deliver service personally
(2) deliver service at place of dwelling with someone of suitable age or discretion who resides there.
(3) Deliver service to an agent especially appointed to receive process
(4) May follow service law of state you are suing in, or state the defendant lives in.
v) 4(f)- you can serve an individual in a foreign company by mail
vi) 4(g)- how to serve minors and incompetents
vii) 4(h)- how to serve corporations and associations
(1) usually an “agent” to receive service
(2) served the same way an individual is served
viii) 4(i)- how to serve the US--Serve the local district attorney and send a copy to US attorney.
ix) 4(j)- how to serve the state or local gov.--use state rules or serve the executive
x) 4(m)- service must be made 120 days after complaint, unless good cause for delay.
xi) 4(d) creates the procedure for waiving service (voluntarily accepting service)
(1) Under the federal rules, you may not serve by mail or email, but you may use mail to request a
waiver.
(a) intended to save time, money, effort in the making of service.
(b) Defendant has a duty to avoid unnecessary expenses of serving the summons
(2) does not constitute an acceptance of defendant’s jurisdiction- defendant may still object to
improper jurisdiction or venue.
(3) Does constitute an acceptance of the form and process of service (may not argue about that later)
(4) Date of service is when the waiver is filed w the court.
xii) 4(f) Service in a foreign country generally controlled by the Hague Service Convention
(1) Intended to create uniformity in international service of process
xiii) 4(k) says federal courts may “borrow” state long-arm statutes
(1) means they can extend jurisdiction just as far as the states in which they sit
3) NY State Service Rules (CPLR 308)
a) Don’t need to reside at the house to receive papers for someone, just need to be “suitable age and
discretion”
b) May serve at primary place of work, but must be accompanied with a letter home.
c) If you can’t serve in person or at the home and you’ve given it “due diligence”, you may serve by fixing
service to the door of the home or place of work, with a clear indication that the notice is legal.
i) The server would want to show how he tried the other means first in his afidavat.
d) If service is impracticable in any other way (you have no idea where he is), the court may determine the
appropriate means of service.
4)
Personal Jurisdiction 03/11/2010 17:03:00
1) Constitutional Provisions Establishing Personal Jurisdiction
 a) The Full Faith and Credit Clause, Article IV, Section 1:
i) “full faith and credit shall be given to in each state to the public acts, records, and judicial proceedings
of every other state.”
ii) Compels the enforcement of one state’s judicial proceedings in other states.
b) The Due Process Clause, the 14th Amendment:
i) “no state shall deprive any person of life, liberty, or property without due process of law.”
ii) Excessive assertions of jurisdiction by state courts would deprive those things.
iii) Due process requires appropriate notice (serving process) and appropriate nexus (personal jurisdiction)
2) Personal Jurisdiction Checklist
3) State or Federal Court? If the case is in state court, the limits of state court personal jurisdiction apply
(proceed to Part 2). If the case is in federal court, consider:
a) Possible Waiver? Has PJ question been raised in an initial pre-trial motion under FRCP 12(b)? If not, the
challenge is waived and PJ is established under FRCP 12 (g),
b) Special Provision? Has PJ been created through a special federal provision?
i) 100 Mile Bulge Rule? Is the party joined under FRCP 14 or FRCP 19 and served within 100 miles
from the venue? If so, PJ is established through FRCP 4(k)(1)(B)
ii) Federal Statutory Provision? Is there a federal statute involved that has its own provisions for
establishing PJ? If so, and those provisions are met, PJ is established through FRCP 4(k)(1)(C)
iii) Alien Provision? Is the claim against a person not subject to PJ in any state? If so, analyze use of
nationwide jurisdiction established in FRCP (4)(k)(2) and applied in GMAC v. Raju
(1) Is claim arising under a federal question rather than diversity?
(2) Is the defendant not subject to PJ in any specific state?
(3) If yes, go to Shoe analysis below to determine if defendant has sufficient contacts with
US as a whole under the “aggregate contacts theory”. If so, PJ is established.
(4) (some have argued that this rule violated the REA)
c) If no waiver or special provision, FRCP 4(k)(1)(A) says there is federal PJ if there would be state PJ where
the court is located. Go to Part 2 to see if state PJ exists
4) Long-Arm Statute? Do the facts authorize PJ under the state’s long arm statute? ALWAYS REFERENCE IT
 a) California Model- Does the state use a “sky’s the limit” long-arm statute, where PJ is exercised as long as
it satisfies the constitutional limit? If so, go to Part 3.
b) Enumerated Act Model- Does the state specify the circumstances where the court can exercise PJ? If so,
and the facts fall within those circumstances, go to part 3 to make sure the statute is constitutional.
c) Gray Products Case? If the Statute authorizes PJ for claims “arising out of tortuous conduct committed in
the state”, some jurisdictions allow the tortuous conduct to be where the harm was caused, not where the
defective product was manufactured.
5) Constitutional? Does the long arm statute asserting jurisdiction satisfy the due process requirements of the 14th
Amendment?
a) Traditional Bases? Is one of the traditional bases for establishing PJ applicable?
i) In State Service? Was the defendant served within the state? If so, PJ is established under Burnham
v. Superior Court, even if presence in the state was “transient” (temporary)
ii) Voluntary Appearance? Has the defendant appeared in court voluntarily without challenging PJ? If
so, jurisdiction is established.
b) Exceptions to Traditional Bases? Are there exceptions to the traditional bases that might apply?
i) Forum Selection Clause? Did the defendant sign a forum selection clause? If so, these are generally
held enforceable and PJ is established under The Bremen v. Zapata Off-Shore,
(1) Unless the contract with the clause was unfair, such as when one party is too
“unsophisticated” to understand its implications Carnival Cruise Lines v. Shute.
ii) State Citizen? Is the defendant a citizen of the forum state? If so, PJ is established under Milliken v.
Meyer
iii) Plaintiff? Is the plaintiff who filed the complaint challenging PJ? If so, they have already consented to
PJ by bringing the action in that forum, so PJ is established under Adam v. Saenger
c) International Shoe Test. If no traditional bases or exceptions apply, analyze if the defendant has “certain
minimum contacts with the state such that the maintenance of the suit does not offend traditional notions of
fair play and substantial justice” under International Shoe Co. v. Washington
i) Continuous/Systematic Activity Related to the Claim? If so, PJ is established under International
Shoe Co. v. Washington
ii) Continuous/Systematic Activity but Unrelated to the Claim? If so, are the contacts substantial
enough to establish General PJ?
(1) Are they more than those deemed insufficient to create general jurisdiction in
Helicopteros?
(a) (a trip to the state by the defendant’s CEO to negotiate a contract, purchases from the
state for for helicopters, and training of the pilots in state)
(b) Making purchases necessary for business is not enough.
 (2) Do the contacts appear to be those approaching the conduct of extensive corporate operations,
management, or administrative activity within the state—“doing business”
(3) If so, they are substantial, and PJ is established under Helicopteros v. Hall
(a) Abko Industries v. Lennon- people, not just corporations that are “doing business”, may
be said to have continuous and substantial activities in a state, thus subjecting them to general
jurisdiction.
iii) Single/Isolated Activity and Unrelated to the Claim? If so, no PJ under International Shoe Co. v.
Washington
iv) Single/Isolated Activity and Related to the Claim? If so, go to part 4 to determine if there is Specific
PJ
6) Specific PJ? Depends on two pronged analysis of minimum contacts and reasonableness. Specific jurisdiction
requires both prongs to be met (in Asahi Metal v. Superior Court) Under McGee v. Int. Life Insurance, even one
isolated contact can create Specific PJ if analysis is met. (MAKE SURE YOU CHECK FOR
REASONABLENESS)
a) Minimum Contacts? Are there minimum contacts between the defendant and the forum state?
i) Purposeful Availment? Has the defendant purposefully availed itself to the forum state?
(1) Has it acted such that it has received the benefits and protections of the state? If so,
minimum contacts are probably satisfied under Hanson v. Denckla
(2) Could the defendant reasonably anticipate that it’s conduct in the state would subject it be
brought to trial in that state? Did it intentionally inject itself into the state to solicit business? If so,
minimum contacts are satisfied under McGee v. International Life Insurance
(3) Was there unilateral action of parties other than the defendant towards the state, or did the
defendant take deliberate and purposeful action towards the state? If the latter, minimum contacts
are satisfied under World Wide Volkswagon v. Woodson.
ii) Intentional Tort? Has the defendant “intentionally targeted tortuous conduct at a resident of the
state”? If so, defendant has purposefully availed itself under Calder v. Jones “effects test” and
minimum contacts are satisfied
(1) Two possible standards like the stream of commerce cases (see below). Intended to have
an effect or just aware it would have an effect?
(2) Defamation is clearest, Some states, like NY (NY CPLR 302 (a)(2)and(3)) have
explicitly taken defamation suits off the table in their long arm statues.
(3) In Keeton v. Hustler, the court reaffirmed the “effects test” from Calder even if the
plaintiff is not a resident of the state itself.
(a) If the tortuous conduct can be reasonably anticipated to have negative effects in the forum
state, minimum contacts are satisfied even if the plaintiff is not a resident of that state.
 (b) So a California resident may sue in Nevada for a magazine that defamed her there, even
though she’s not a resident of Nevada.
(4) Gray Products Case? If the long arm statute authorizes PJ for claims “arising out of
tortuous conduct committed in the state”, some jurisdictions allow the tortuous conduct to be
where the harm was caused, not where the defective product was manufactured. (See NY CPL
308)
iii) Contractual Contact? Does the defendant have a contractual relationship with a forum resident?
(1) Did negotiation, execution, and/or performance of the contract take place within the
forum state? If so, the defendant has purposefully availed itself under Burger King v. Rudzewicz,
and minimum contacts are satisfied.
(a) Based on the contract, could the defendant reasonable expect to be hailed into court in the
forum state?
(b) This also depends on the business competency of the contracting parties
(2) Consider Prior negotiations, Future consequences, The terms of the contract, The parties actual
course of dealing on a case by case basis, a choice of law clause (if theres a Florida choice of law
clause, then more likely to be hailed to court in florida)
(3) Sending contract material into the state constitutes purposeful availement under McGee
v. Int. Life Insurance
iv) Stream of Commerce Case? Did a product of the defendant’s create the cause of action only after
traveling through the stream of commerce? If so, do the facts satisfy the standards for purposeful
availment set forth in Asahi Metal v. Superior Court?
(1) O’Connor Standard: Defendant must have intended for its product to be marketed in the forum
state
(2) Brennan Standard: Defendant merely must have been aware that its product would be
marketed in the forum state (carried by the stream of commerce), like in Grey v. American
Radiator
(3) If Defendant didn’t intend and wasn’t aware that product would end up in the forum state
(placed in a pond of commerce), no purposeful availment, like in World Wide Volkswagon v.
Woodson
v) Property Ownership Case? Is property located within the court’s jurisdiction the main issue of the
claim? If so, Shaffer v. Heitner says In Rem cases meet Specific PJ requirements. (the property is the
contact, and the claim is related to that property)
(1) Quasi In Rem cases (where the property in question is just being used to pay a potential
judgment) define property as an isolated contact, so claim must be analyzed like any other contact.
(a) If the claim is unrelated to the property in question there will be no PJ
 (b) No minimum contacts, and also probably no reasonableness since the state w the property
doesn’t have much interest in adjudicating,
(2) Shareholders- if the claim is not related to the stock or other assets in that are held in the
state (the stock is just used as collateral for damages), separate minimum contacts must still be
shown. Shaffer v. Heitner
vi) Internet Case? Is the contact through the internet? If so, analyze the nature of the website using the
“sliding scale” test laid out in Zippo Mfg. v. Zippo Dot Com
(1) “"the likelihood that personal jurisdiction can be constitutionally exercised is directly
proportionate to the nature and quality of commercial activity that an entity conducts over the
Internet.”
(2) Did the website “effect” the forum state (calder), did it purposefully avail itself to the
forum state?
(3) Is the website active, passive, or interactive?
(a) Passive—Websites designed simply to make information available to visitors of the site
(b) Active—Websites designed for business transactions between the company and those that use
the sight though repeated transmission of files
(c) Interactive—Websites that make business transactions possible through a voluntary exchange
through a host computer, but may also serve other purposes as well.
(i) Whether interactive sites constitute purposeful availment is made on a discretionary basis
determined by the level of interactivity and its commercial nature.
(ii) In GMAC v. Raju, Raju’s website was considere inteacrive enough: He provided a toll
free US telephone number, emphasized shipping/ordering nstructions for US customers,
used testimonials from US students.
b) Reasonableness? Would the exercise of jurisdiction be unreasonable? The forum does not have to be the
most reasonable, just not “so gravely difficult and inconvenient that a party is unfairly put at a severe
disadvantage in comparison to his opponent” (quote from BK v. Rudzewik)
i) Balance the factors established in Asahi Metal v. Superior
(1) Would it be so inconvenient to the defendant that it would impact their ability to mount a defense?
(a) For large corporations this is unlikely—they have lots of resources
(b) In Asahi, it was unreasonable to make a Taiwanese company defend itself in a California
court
(2) Does the state have a strong interest in resolving the dispute because its laws, policies, or citizens
are involved?
(a) In McGee, Californa had a strong interest in protecting its citizens against misfeasance by
insurance companies
(b) In Asahi, California had little interest in adjudicating a Taiwanese company’s rights.
(3) Does the plaintiff have a strong interest in being in the forum?
Subject Matter Jurisdiction 03/11/2010 17:03:00
1) Subject Matter Jurisdiction Checklist:
2) Remember:
a) Article 3 of the constitution broadly confers SMJ to the supreme court only. It is the statues (1331 and
1332) that confer the narrower SMJ to the lower federal courts
b) SMJ must exist—parties may not consent to a federal court that does not have SMJ (unlike PJ, where
consent is an allowed privilege)
3) DIVERSITY JURISDICTION? Does the claim satisfy the requirements of 28 U.S.C. § 1332 so that the court
may have SMJ on the basis of diversity? Remember that the Statute is what confers SMJ, not Article 3 of the
constitution, which is broader and only applied originally to the Supreme Court.
a) Determining Citizenship. For determining diversity jurisdiction, first determine the citizenship of the
parties
i) Citizenship is determined at the time the claim was filed, not at the time of events giving rise to the
claim.
ii) Individuals are citizens based on their “domicile”--a place of fixed or habitual residence, where, if
absent, they are likely to return.
(1) A person may only have one domicile (although several residences)
iii) Aliens with permanent residence are citizens in the states they are domiciled.
(1) Aliens without permanent residence are diverse anywhere.
iv) Foreigners are citizens of their respective countries and may be considered for diversity purposes
under 28 USC § 1332 (a)(2)
v) Corporations are citizens where they are incorporated AND where their principle place of business is
located, under 28 USC § 1332(c)(1)
(1) A corporaton may only have one or two places of citizenship (although several residences)
(2) “nerve center test”- principle place of business is place where operations are consolidated
and organized, not where most of the business takes place Hertz Corp. v. Friend
b) Complete Diversity? Are all of the parties on one side of the “v.” diverse from all of the parties on the
other side of the “v.”?
i) If so, then the complete diversity requirement set forth in Strawbridge v. Curtiss is satisfied, proceed to
next question. (strawbrigde interpreted 1332 diversity to mean complete diversity)
ii) If not, then the complete diversity does not exist and the court does not have SMJ on the basis of
diversity. Proceed to Federal Question section to consider alternative basis for SMJ
c) Amount in Controversy? Is the claim for more than $75,000 as required by 28 USC 1332(a)?
i) If so, the amount in controversy requirement is established, proceed to next questions.
(1) Excluding costs such as lawyer fee’s, ect.
 (2) Unless no possible way for the claim to meet the requirement, assume it may if the
plaintiff alleges so, since its amount in controversy, not amount likely to be recovered.
(3) What may be aggregated to meet the requirement?
(a) Multiple claims against a single defendand- Yes
(b) Single claims against multiple defendants-No. (defendants above the threshold will have
jursdiction, those below will be dismissed)
(c) Multiple plaintiff’s claims against single defendant-No
(i) *Unless one of them is above the threshold, then all the claims may be heard under
supplemental jurisdiction. (below) Exxon Mobil v. Allapattah
(4) If no, then the amount in controversy requirement has not been met, and the court does not have
SMJ on the basis of diversity. Proceed to Federal Question section to consider alternative basis for
SMJ
d) Exceptions? Do one of the exceptions to diversity SMJ apply? If so, the court does not have SMJ on the
basis of diversity. Proceed to Federal Question section to consider alternative basis for SMJ
i) Domestic relations? Is the claim a divorce, alimony, or child custody cases? If so, the federal courts
will generally refuse to hear the claim, although that refusal is not officially based on the statute or the
constitution.
ii) Probate Matters? Is the claim a will or estate case? If so, the federal courts will generally refuse to
hear the claim, although that refusal is not officially based on the statute or the constitution.
iii) Alien v. Alien? Are their aliens on both sides of the “v.”? If so, the court will refuse to hear the claim
and it should be brought in state court instead.
iv) *Collusive Joinder? Is there evidence that a party has been made a part of the suit only for the
purpose of creating diversity SMJ? If so, that party may be ignored for diversity purposes under 28
U.S.C. § 1359
4) FEDERAL QUESTION JURISDICTION? Does the claim satisfy the requirements of 28 U.S.C. § 1331 so
that the court may have SMJ on the basis of a federal question?
a) Essential Federal Element? Does the claim contain an essential federal element such that it “arises under”
federal law?
i) Is the claim created by a federal law or the US constitution?
ii) Does the plaintiff’s right to relief depend on application or interpretation of federal law?
iii) If so, there is an essential federal element. Proceed to next question.
b) “Well Pleaded Complaint?” Does the essential federal element appear on the face of the plaintiff’s “well
pleaded complaint”?
i) Does the plaintiff “artfully plead” an essential federal element in his complaint?
(1) If so, there is a “well pleaded complaint” and federal question SMJ is established under
Louisville & Nashville RR. v. Mottley.
(2) If not, but the defense is likely to use a federal question as a defense, that is not sufficient for the
claim to “arise under” federal law.
 ii) even if federal law is likely to be determinative of the controversy, it must arise in the initial claim, not
just the defense to it.
5) REMOVAL JURISDICTION? If the case has already been filed in state court, may the defendant remove it
federal court because there is concurrent jurisdiction over the claim?
a) Original Jurisdiction? Would the federal district courts have original jurisdiction over the plaintiff’s claim
if it were filed there originally?
i) If yes, 28 USC § 1441(a) is satisfied. proceed to next question to determine if other requirements are
met.
ii) If no, the case is not removable.
b) Time Limit? Have 30 days passed since the defendant received notice of the pleading?
i) If yes, the defendant has waived the right to remove under 28 USC § 1446(b) and the case is not
removable.
c) Basis for Original Jurisdiction? Would the original federal jurisdiction be based on a federal question or
diversity only?
i) Federal Question. If original jurisdiction would be based on a federal question, removal is proper
regardless of citizenship of the parties.
ii) Diversity Only. If diversity would be the only basis for original jurisdiction, NONE of the defendants
seeking removal may be a citizen where the claim has been brought under 28 USC § 1441(b)
(1) *If a defendant is sued in his home state, the case may not be removed to a federal forum, because
the federal forum will be no less prejudicial.
d) Motion to Remand? If the case has been removed improperly for any of the reasons above (time limit,
diversity), the plaintiff must motion to remand (bring back to state court) within 30 days of the removal
otherwise the removal will stick. 28 USC 1447
i) An improper removal will remain valid if the motion to remand is not filed within 30 days of the
removal.
ii) EXCEPT: an improper removal due to lack of SMJ…the court must always cure that defect on its own.
e) Supplemental Claims? If the original claim could be properly removed, the entire case including claims
that are proper under supplemental jurisdiction may be heard in the federal forum. 28 USC 1441(c)
o However, the court may use its discretion under the supplemental jurisdiction statute, 28 USC
1367(c), to “sever” the supplemental state claims and remand them back to a separate state
court trial
f) Removing to a federal court does not waive a defendant’s right to make a 12(b) pretrial motion
6) SUPPLEMENTAL JURISDICTION? If the claim does not qualify for diversity or federal question SMJ,
does it qualify for supplemental jurisdiction under 28 U.S.C. § 1367? (REMEMBER: Article 3 provides the
broad “same case or controversy” requirement, (as interpreted by gibbs) but its the statute that provides the
necessary jurisdiction to the courts)
a) Section 1367(a) does the general grant of supplemental jurisdiction laid out in this section apply to the
claim?
i) Freestanding Claim? Is there a claim that the court does have original jurisdiction over, based on
diversity or a federal claim (analyze using SMJ outline)?
(1) If Yes, go to next question
(2) If No, no Supplemental Jurisdiction
ii) Common Nucleus of Operative Fact? Is the supplemental claim based on the same “common nucleus
of operative facts” test laid out in United Mine Workers v. Gibbs, and adopted in the “same case or
controversy” language of 1367(a)?
(1) Would hearing the claim require the same evidence and witnesses?
(2) If Yes, Supplemental Jurisdiction may be available (because Article 3 grants jurisdiction over
entire “cases”, not just particular claims) Proceed to next question to see if other roadblocks
prevent it.
(3) If no, no Supplemental Jurisdiction
b) Section 1367(b) If the above is satisfied, does this section nonetheless prevent supplemental jurisdiction?
i) Diversity Claim? Is the jurisdiction on the freestanding claim based solely on diversity?
(1) If not (there is a federal question), then 1367(b) will not prevent supplemental jurisdiction
(2) If yes, go to next question.
ii) Supplemental Claim by Plaintiff? Is the claim at issue made by the initial plaintiff or plaintiffs
joining the case under FRCP 19 (compulsory joinder) or FRCP 24 (intervention)? (plaintiff’s are
treated differently than defendants because plaintiffs control the litigation, while the defending party
must assert its claims wherever it is brought to court)
(1) If no, meaning the claim is made by the defendant (including defendant’s who become “third party
plaintiffs” based on their claims), 1367(b) will not prevent supplemental jurisdiction.
(2) Supplemental Claim by Compulsory Joinder FRCP 19 Plaintiff or Intervening
FRCP 24 plaintiff? If the claim is by a plaintiff joining under 19 or 24 the claim will not qualify
for Supp J IF such jurisdiction would ruin the complete diversity requirements.
(a) This means FRCP 20 (permissively joined) plaintiffs and FRCP 23 (class action)
plaintiffs may get supp. J too:
(i) if amount in controversy diversity requirements are met by one, court can hear all
supplemental claims even if they don’t Exxon Mobile v. Allapatah
(ii) But if the new plaintiffs ruin the complete diversity requirement, they may not be heard.
(3) Claim by Initial Plaintiff? if claim is by original plaintiff, Supp. J is fine unless against
defendants being made parties under FRCP 14 (impleader), 19, 20, (joinders) OR 24
(intervention), and hearing those claims would ruin the complete diversity requirements
c) Courts Discretion 1367(c) The district court may decline to exercise supplemental jurisdiction at its
discretion
i) See section for possible reasons why
Choice of Venue 03/11/2010 17:03:00
1) Venue Checklist
2) State Court? Is the case being brought in state court? If so, choosing the proper venue within the state court
system is dictated by state venue statutes.
a) If case is being brought in federal court, continue to choose the proper venue (district court) within the
federal court system.
3) Waiver? Has the party challenging venue waived the challenge? If so, then Venue is proper. (Venue is a
privilege of the defendant, the case may go on w/o proper venue)
a) Forum Selection Clause? Is there a forum selection clause that covers the situation and binds the parties
involved? If so, the clause prevents a party from challenging any venue that is proper under the clause.
Carnival Cruise Lines v. Shute
b) Failure To Object? Has the party challenging venue already responded to the complaint without
challenging venue in a 12(b) motion? If so, the venue challenge has been waived under 12(h).
4) Special Venue Statute? Is there a special venue statute that applies? If so, venue must be evaluated under the
special statute, not the general venue statute. (copyright most likely)
a) US as a Defendant? Is this a suit against the U.S.? If so, venue is governed by §1402.
b) Federal Interpleader? Is this a federal interpleader action? If so, venue is governed by §1397.
c) **Copyright and Patent Action? If so, venue is governed by §1400.
d) Shareholder Derivative Action? If so, venue is governed by §1401.
e) Alien Defendant? Is one of the defendants an alien person or a foreign corporation? If so, venue is proper
in any district under §1391(d).
5) General Venue Statute? If no waiver has occurred and no special venue provision applies, then apply the
General Venue Statute 28 USC § 1391. (Roughly: a defendant must be sued in a place where they reside or
where important events related to the suit took place)
a) Residency Test. Is there only one defendant or do all the defendants reside in the same state? If so, venue
is proper in any district (not the whole state) where any of the defendants reside under 28 USC § 1391(a)(1)
for diversity cases, and 28 USC § 1391 (b)(1) for non-diversity cases.
i) Individuals. Residency is equated with citizenship (domicile)
ii) Corporations. Residency is equated with being subject to personal jurisdiction. For multi district
states, determine personal jurisdiction as if each district were a separate state. 28 USC § 1391 (c)
b) Location of Events Test. Is there a district where “a substantial part of the events giving rise to the claim”
took place? If so, venue is proper under 28 USC § 1391(a)(2) for diversity cases, and 28 USC § 1391 (b)(2)
for non-diversity cases.
i) In Rem? Is property at issue? If so, the property is the event giving rise to the claim, and venue is
proper in the court where a substantial part of the land is located under the Local Action rule.
c) Fallback Provision. If the defendants are not all from the same state, and there is no personal jurisdiction
for any of the defendants where a substantial part of the events took place, proper venue is not available
based on the first two tests, so determine venue with reference to the fallback provision. (ONLY USE
FALLBACK IF TESTS ABOVE DON’T WORK)
i) Diversity Cases. If this is a diversity-only case, is there a district where any defendant would be
subject to personal jurisdiction? If so, venue is proper in any of those districts under 28 USC § 1391 (a)
(3)
ii) Non-Diversity Cases. If this not a diversity-only case, is there a district where any defendant can be
“found”? If so, venue is proper in any of those districts under 28 USC § 1391 (b)(3).
 iii) Usually applies when substantial events take place in a foreign country…
6) TRANSFER OF VENUE? can the case be transferred to another district in the same court system under 28
USC § 1404.
a) Proper Jurisdiction and Venue in Transferee Court? Is the transfer being made to a district where the
action could have been brought originally?
i) If yes go on to next question.
ii) If no, transfer of venue is improper according to the decision in Hoffman v. Blaski
b) Convenience and Justice? Would a transfer be “for the convenience of the parties and witnesses and in the
interest of justice”?
i) If yes, transfer of venue is proper.
ii) If no, transfer of venue is improper under 28 USC § 1404(a)
c) Who’s Choice of Law? When transfer is proper, the law selected by the original (“transferor”) forum will
apply in the new forum regardless of whether the plaintiff or defendant requested the transfer.
o Rule laid out for plaintiffs transferring under Ferens v. John Deere Co.
o Rule laid out for defendants transferring under Van Dusen v. Barrack
7) FORUM NON CONVENIENS? If the forum is inconvenient, can the case be dismissed and then taken to
another district in a different court system (ie one state court to another) under Forum Non Conveniens?
a) Adequate Alternate Forum? Is there a more convenient alternative forum where jurisdiction and venue
are proper?
i) If no (as shown by the defendant), dismissal for FNC is not available under Gulf Oil Co. v. Gilbert
ii) If yes, go on to next question
b) Unfavorable Law? Will this alternative forum’s choice of law be unfavorable to the plaintiff? If so, that
should factor into the private interest analysis below, but it does not automatically prevent recognizing the
forum as an adequate alternative under Piper Aircraft Co. v. Reyno.
c) Public and Private Interests? Do private and public interests weigh in favor of having the case heard in
the alternate forum? Evaluate using the factors established in Piper Aircraft Co. v. Reyno and Gulf Oil Co.
v. Gilbert.
i) Private Interests: Interests the specific parties are concerned with.
(1) Convenience and cost to the parties
(2) Availability of key witnesses and documents
(3) Ability to join other local parties
 (4) Enforceability of the judgment
(5) *Beneficial choice of law
ii) Public Interests: Interests the governments and local communities are concerned with.
(1) Consistency of outcomes (if case is dismissed for FNC, will the new separate actions have
inconsistent outcomes?)
(2) Government’s interest in adjudicating under its system.
iii) Appellate Review? Is the FNC motion being reconsidered in an appellate court? If so, the balancing of
pubic and private interests is discretionary, so the court should apply an “abuse of discretion” standard
of review.
8) Choice of Law:
a) State Court applying Choice of Law Rules: The forum does not automatically apply its own law to a case
just because it’s the forum. Instead, The forum court applies “conflict of laws” rules to determine what the
applicable law should be.
i) Constitutional Requirements: the 14th Amendment and the Full Faith and Credit Clause require only
minimal scrutiny for state court choice of law decision. Allstate Insurance v. Hague.
(1) As long as the law applied is from a state with “significant contact or significant
aggregation of contacts, creating state interests, such that the choice of law is neither arbitrary
nor fundamentally unfair” the 14th Amendment and Full Faith and Credit Clauses are not violated.
(2) As long as the state has some contact (not the most or the best), so that there is enough of a state
interest so that its not completely unreasonable or random to use the law.
(3) Similar to the shoe test for personal J, but much more relaxed. It’s a “shock the
conscious” standard for choice of law
ii) Tradition Approach: At first, most “conflict of law” rules used the laws of the territory in which the
activity giving rise to the claim in question took place. (Lex Loci Delicti)
iii) Modern Approaches: More recently, issues such as the purpose of the law and relationship to the
parties have come in to play, so that each forum might apply any number of conflict of law
methodologies.
9) Federal Court applying Choice of Law Rules: Under Erie, the federal court must apply the choice of law
rules of the state in which it sits. Klaxon Co. v. Stentor
a) The rule insures “vertical uniformity” of the law between state and federal court, at the cost of less
“horiziontal uniformity” between the federal courts of different states.
b) A state’s “choice of law” rule is considered substantive, not procedural, so under Erie, the federal court
must follow the choice of law rule of the state in which it sits.
Erie Doctrine 03/11/2010 17:03:00
1) Erie held that a federal court sitting in diversity must apply the substantive law (both statute and common), of
the state in which it is sitting.
a) The purpose of Erie was to 1) discourage "forum shopping" and 2) avoid inequitable administration of
laws.
b) Federal courts may still apply their own procedural rules…
2) Federal Case Based Only on Diversity?
a) If not, there is no Erie question to consider.
b) If yes, next determine which “track to analyze the issue on.
3) Determining the Right “Track”
a) Presence of a Federal Rule, Statute, or Constitutional Provision? Is the issue before the court covered
by a Federal Rule of Civil Procedure or a Federal Statute, or is the issue covered by an uncodified federal
practice?
i) If no FRCP or Statute is at stake, evaluate the uncodified federal practice with an Erie analysis below.
ii) If FRCP or Statute is involved, proceed to next question.
b) Controlling FRCP , Statute? Would applying the FRCP or statute force a “direct collision that is
unavoidable” with state law? Walker v. Armco Steel Corp
i) Would applying the state rule instead of the federal rule thwart some purpose the federal rule was
intended to achieve?
ii) If No, the FRCP or Statute or Con Prov. is not in direct conflict with state law, and the state law should
probably be applied, but be analyzed using an Erie analysis below.
iii) If Yes, the FRCP or statute is in direct conflict with state law, proceed with a Hanna analysis below.
4) Hanna Analysis
a) Constitutionality of the FRCP or Statute? Does the FRCP or Statute regulate matters that are “arguably
procedural”? Hanna v. Plumer
i) Might the matter be discussed in civil procedure?
(1) Process is procedural (Hanna), statute of limitations is substantive (Guaranty),
certification of class action is procedural (Shady Grove v. Allstate), choice of law is substantive
(Klaxon v. Stentor), standard for reviewing jury awards is substantive (Gasperini), recognition of
forum selection clause is procedural (Stewart Org. v. Ricoh), the elements of a claim or defense
are substantive
(a) If Yes, it is constitutionally valid under the Necessary and Proper clause, Article 1,
Section 8 which allows congress to make procedural rules for the federal courts. Proceed to
next question.
 (b) If no, then the FRCP or Statute is substantive, and it may not be enforced in lieu of
conflicting state laws in diversity cases, because of the Rules of Decisions Act 28 U.S.C.
1652 forbids the federal government from intruding on state substantive law.
b) Compliance with the Rules Enabling Act? Does the FRCP or Statute comply with the REA (which
established the FRCP) as defined in 28 USC §2072?
i) Does the FRCP “abridge, enlarge, or modify” any substantive right? in 28 USC §2072(b)
(1) Does it define legal rights or merely define how they should be enforced?
(2) Does it significantly affect primary behavior outside the courtroom?
(a) If yes, the FRCP is too substantial so that it violates the REA, and it may not be applied in
light of conflicting state law.
(b) If no, the FRCP is in compliance with the REA, and is therefore valid, and should be
applied instead of the conflicting state law, because of the Supremacy Clause, which holds
valid federal rules supreme over conflicting valid state rules.
ii) Very few cases have invalidated FRCP rules for this reason, because to do so would mean concluding
that the Advisory Committee, the Supreme Court, and Congress were all wrong:
(1) Under the REA, FRCP rules are recommended by the Advisory Committee on the Civil
Rules, officially transmitted by the Supreme Court to congress, and then implicitly endorsed by
congress. 28 USC §2072
5) Erie Analysis. Should the federal practice in question or the conflicting state practice be applied?
a) Substantive Federal Practice? Under Erie v. Tompkins, the RDA requires federal courts sitting in
diversity cases to apply substantive state law, whether judge-made or statutory.
i) Do the conflicting rules proscribe substantive duties and obligations, as opposed to the mere “form and
mode” of enforcing those obligations?
(1) If Yes, the federal practice is substantive and must yield to conflicting state law, whether it is
common or statutory.
(2) If No, proceed to the next question.
b) Modified Outcome-Determinative Test. Apply the test laid out in Guaranty Trust Co. v. York and
modified by Hanna v. Plumer (Hanna part 2) to determine if the “twin aims” of Erie are disserved.
i) Forum Shopping Encouraged? Would application of the federal practice impact a plantiff’s initial
decision to file in state or federal court?
(1) If Yes, the Erie policy aim of discouraging forum shopping is disserved. Proceed with the
Byrd balancing approach below to determine if there are counterbalancing federal policies that
warrant application of the federal standard anyway.
(2) If no, proceed to the next question.
ii) Inequitable Administration of the Law Likely? Would application of the federal practice result in
substantial variations between outcomes in state and federal court?
 (1) If Yes, the Erie policy aim of avoiding inequitable administration of the law is disserved.
Proceed with the Byrd balancing approach below to determine if there are counterbalancing
federal policies that warrant application of the federal standard anyway.
(2) If no, then neither of the “twin aims” of Erie are disserved, and the federal practice
should be followed.
c) Byrd Balancing Approach. In Gasperini v. Center for Humanities, Inc. Justice Ginsberg re-introduced the
balancing approach established in Byrd v. Blue Ridge.
i) Outcome determinativeness must be evaluated against the substantive policy interests furthered by the
respective state and federal practices. do so, ask the following:
ii) Countervailing Federal Interest? Does the federal practice promote an important substantive policy
interest that outweighs the significance of the state policy?
(1) Would applying the state law “disrupt or alter the essential character or function of the federal
court?”
(2) If the federal interest is substantially greater, factor that in…
d) Possible Blend? If there is no “direct conflict” with either an FRCP, Statute, or federal practice, may
portions of the state law and federal law be applied to best serve the “twin aims” of Erie? Gasperini v.
Center for Humanities, Inc
Joinder of Claims and Parties 03/11/2010 17:03:00
6) JOINDER OF CLAIMS May a Claim be Joined? (FOR ALL JOINED CLAIMS, MUST BE SURE THERE
IS SMJ OR SUPPLEMENTAL SMJ)
7) Already a Valid Claim? Is there already an original legitimate claim, counterclaim, cross claim, or third-party
claim?
a) If so, any related or non-related additional claims may be joined in the claim under FRCP 18(a)
i) In fact, if the claim is related, it will be barred from relitigation under claim preclusion so it actually
must be joined. (though not stated in the rule like it is in the counterclaim context)
b) Proceed below to determine if the counterclaim, cross claim, or third-party claim is valid.
8) Counterclaim? Is the claim in question being asserted against a party who has already asserted a claim against
the claimant?
a) Compulsory Counterclaim? FRCP (13)(a)
i) Same Transaction/Occurrence? Is there a “logical relationship” between the claims? Grumman
System v. Data General
(1) Goals in determining a logical relationship:
(a) Promote Judicial Economy and Efficiency. where if the same evidence and witnesses
would be used for both claims, it would make more sense to do it at once.
(b) Prevent Inconsistent Verdicts so that the same set of facts draw the same legal
conclusions in both actions.
(c) The will trying these cases together further or hinder these goals?
ii) If so, the counterclaim is compulsory, and must be raised or waived under FRCP (13)(a)
(1) Unless the claim is already the subject of another pending suit, then it not be raised 13(a)
(2)(A)
(2) NY State has no Compulsory Counterclaim. (what rule?)
b) Permissive Counterclaim If not, the counterclaim is permissive, and may be raised in later litigation 13(b)
i) May be added as an amendment later
ii) Court may severe the claim and order it heard in a separate suit under FRCP 42(b)
c) Joining New Parties to Counterclaim? If so, this is permitted under 13(h) as long as it is within the party
joining rules (below)
9) Crossclaim? Is the claim being asserted against a coparty aligned on the same side of the “v”? FRCP 13(g)
a) Same Transaction/Occurrence? Is there a “logical relationship” between the claims?
 b) can be for indemnification, or a separate claim arising out of same transaction
i) If so, the crossclaim may (not must) be asserted under FRCP 13(g)
(1) Alternatively, it may be added as an amendment
ii) A crossclaim with no logical relationship to the initial claim may not be brought, unless it is attached
(using FRCP(18)) to a different crossclaim that does have the necessary logical relationship
c) Joining New Parties to Crossclaim? If so, this is permitted under 13(h) as long as it is within the party
joining rules (below)

JOINDER OF PARTIES (MUST ALSO MAKE SURE THERE IS SUPPLEMENTAL SMJ OVER THESE
PARTIES, AND PJ AND SERVICE IF THERE IS A CHALLENGE)
10) May a Party be Joined? Is the joinder of an additional party permissible?
a) Permissive Party Joinder under FRCP (20)
i) Joinder of Defendants. May a single plaintiff join multiple defendants together? FRCP (20)(a)(1)
(1) Same Transaction/Occurrence? Is there a “logical relationship” between the claims?
Proceed to next question.
(2) Common Question of Law or Fact? Is there at least one question of law or fact
common to all parties being joined together?
(3) Does not require the same legal theory or same amount in damages, as long as the party’s claim
meets the two criteria above.
(4) If yes, defendants may be joined by the plaintiff in a permissive party joinder
ii) Joinder of Plaintiffs. May multiple plaintiffs join together against a single defendant? FRCP (20)(a)
(1)
(1) Same analysis as above as for permissive joinder of defendants.
iii) Broad Discretion. For both, the court has broad discretion in determining these criteria in an effort to
reduce inconvenience and delay and to promote judicial economy and consistency.
iv) Supplemental Jurisdiction. The court must have supplemental jurisdiction over these additional
parties. (See that section)
b) Permissive non-party Joinders. May non parties be brought into the litigation?
i) Impleading (Third Party) Joinder. May a defending party implead a non-party under FRCP (14)?
(1) Asserting Liability Claim? Is the defendant is asserting a claim that will make the third
party liable for any or all of the damages incurred as a result of judgment against it?
 (a) If so, the defendant may bring the third party in as a “third party defendant”, and the
defendant becomes a “third party plaintiff”
(2) This does NOT allow a defendant to “substitute” himself with a different defendant he believes is
actually liable if the first defendant has no actual claim against the second defendant.
(a) Does not allow a defendant to suggest new targets for the plaintiff, only to bring in new
targets for himself.
(3) The third party defendant and third party plaintiff are governed by the same rules of
joinder and parties 14(2)
(4) The original plaintiff must still assert its own claims against the third party defendant if it
has any, they will not transfer automatically, and they must be related to the same case or
controversy as the initial claim. 14(a)(3)
(a) Third party defendant may assert claims against original plaintiff if they arise out of same
transaction. 14(a)(2)(D)
c) Intervention Joinder. May a nonparty inject itself into the lawsuit, even if no one already involved in the
litigation wants them to be involved, under FRCP 24?
i) Intervention as of Right? Does the nonparty have a right to intervene under FRCP 24(a)?
(1) Conferred by Statute? 24(a)(1) If a federal statute confers a right to intervene, and the
party meets that statute’s requirement, it may intervene as of right
(2) Interest at Risk? 24(a)(2) If a nonparty’s “interest is at risk”, it may intervene as of right
under the following conditions:
(a) The party has an interest in the action (difficult to define interest, a specific economic interest
or a general interest?)
(b) The ability to protect that interest will be impaired if the party is not included in the litigation
(c) That interest is not already adequately represented by an existing party.
(d) The intervention is made in a timely matter so as not to significantly disrupt the ongoing suit,
at the judges discretion.
(3) Permissive Intervention. 24(b) If no right exists, does the party have a “claim or
defense that shares with the main action a common question of law or fact” to justify intervention?
(a) Determined at the courts discretion 24(b)(3)
(i) Efficiency concerns must be balanced against the potential impact on the application of
intervention)
(ii) Will be denied if letting the party intervene will cause undue hardship and complication
for the original parties
(iii) More likely to be allowed when the intervening party can show that it brings some
special expertise or a unique perspective to the lawsuit.
 (iv) For permissive, it is not a complete bar if the intervening parties interests are already
represented, but it will be factored into the discretionary analysis.
(v) Some courts have allowed media outlets to intervine in a restrictive setting to obtain
information about the trial that they believe was incorrectly protected from the public
(they share a common question of law or fact—if the information was correctly sealed)
11) Must a Party Be Joined? Is this a Compulsory Party Joinder situation, governed by FRCP 19, where a party
not added to the suit must be added by the court in order to fairly adjudicate the case?
a) Required to be Joined if Feasible? Is the absentee a necessary party under 19(a)?
i) Complete relief available? Can the existing parties get the recovery they seek without the absent
party?
(1) Can the court not adequately provide redress to the parties who are before the court without
including the absent party?
(2) Ex: Co-owners of a property, where only one is included in the suit.
ii) Absent party interest? Does the absent party have an interest in the litigation, and the ability to
protect that interest will be impaired if the party is not included?
(1) Situations where the lawsuit will have collateral effects on non-parties
(2) Ex: Allocating limited funds, like an insurance policy, to which the absent party claims
entitlement.
(3) Because of claim preclusion (see that section), a determination of a non-party’s guilt does NOT
impair their interest.
iii) Inconsistent Obligations? Will litigating without the absent party expose existing parties to double
liability or inconsistent obligations on the defendant if a later suit is brought by the non party?
(1) When an existing party might be subject to conflicting orders in the two actions that cannot both
be implemented.
(2) Multiple liability is not the same as “double” liability or conflicting obligations. The risk of being
sued by someone else later for the same incident (but separate injuries) does not make you a
required party to be joined.
b) Once Required, is Joining Feasible? Once one of the above conditions has been met, is it still possible to
join the party?
i) Proper Jurisdiction?
(1) Will the court still have SMJ over the case? (refer to SMJ analysis)
(2) Will the court have PJ over the party to be joined? (refer to PJ analysis)
(3) Assuming the party to be joined contests PJ
(4) Will the venue still be proper if the party is joined? (refer to Venue analysis)
(5) assuming the party to be joined contests venue
 ii) Immunity? Does the party have some sort of immunity that prevents them from being hailed to court?
Republic of the Phillippines v. Pimentel
iii) If none of the above, party will be ordered by the court to be joined. If required but not feasible,
proceed below
c) “Indispensable Party”? If required but not feasible, should the litigation continue in their absence or
should it be dismissed completely? FRCP 19(b)
i) Use a balancing approach of the following factors to make determination, as demonstrated by Republic
of the Phillippines v. Pimentel
(1) The extent to which judgment rendered in the party’s absence will prejudice them.19(b)
(1)
(2) The extent to which that prejudice could be lessened by protective provisions in the
judgment, shaping the relief, or other measures? 19(b)(2)
(3) Whether a judgment rendered in the party’s absence will be adequate for the existing
plaintiff 19(b)(3)
(4) Whether the plaintiff would have an alternative adequate remedy elsewhere if the action
were dismissed 19(b)(4)
Pleadings 03/11/2010 17:03:00
12) ADEQUACY OF THE COMPLAINT? Is the complaint (or answer setting forth a counterclaim) sufficient
under FRCP 8(a)?
a) Jurisdiction. (8)(a)(1) Does the complaint adequately allege, “in a short plain statement”, the grounds for
the court’s subject matter jurisdiction?
i) Diversity J. If jurisdiction is based on diversity, the complaint must reveal:
(1) The complete diversity of the parties as required by ___
(2) That more than $75,000 is at stake to satisfy the “amount in controversy” requirement.
ii) Federal Question J. If jurisdiction is based on a federal question, the complaint must allege a federal
law, constitutional provision, or treaty that the claim arises from.
iii) Supplemental J. If jurisdiction is based on neither above, but it is based on supplemental jurisdiction,
the claim must:
(1) Allege the existence of original jurisdiction (diversity or federal) over other claims
(2) Allege the sufficiency of supplemental jurisdiction with respect to the actual claim.
b) Statement of the Claim. FRCP 8(a)(2) Does the complaint adequately state, “in a short plaint statement”, a
claim showing that the pleader is entitled to relief?
i) (this question may be rephrased on an exam as “can a party present evidence on a particular matter as
required under the rules?”)
ii) Sufficient Facts Alleged? Are enough facts substantiating liability alleged as required by Bell Atlantic
Corp. v. Twombly and Ashcroft v. Iqbal (the pleading in Ashcroft did not meet the twombly standard—
too conclusory, took twombly beyond Anti-trust context)?
(1) is the complaint characterized by “conclusory labels and formulaic recitation of the elements of a
cause of action”?
(2) Do the facts alleged “nudge the allegations from conceivable to plausible” that they might be won
in an actual trial?
(3) Previously, under the standard the Court set forth in Conley v. Gibson, a complaint need
only state a "conceivable" set of facts to support its legal claims
iii) Special Matters. Does the pleading allege fraud or mistake?
(1) If yes, are the circumstances constituting fraud or mistake stated with particularity
pursuant to FRCP 9(b)?
c) Damages. FRCP 8(a)(3) Does the complaint adequately plead the damages sought?
i) (this question may be rephrased on an exam as “can the plaintiff recover for certain damages”?)
ii) General Damages. Does the complaint support the request for damages? Are the damages sought due
to natural and foreseeable injuries pleaded in the complaint?
iii) Special Damages. If certain damages pleaded are unforeseeable, have the been specifically pleaded as
“special damages” pursuant to FRCP 9(g)
 iv) Awarded as Default Judgment? If damages are awarded as a default judgment, they may not exceed
the amount pleaded in the complaint under FRCP 54(c)
13) ADEQUACY OF THE ANSWER? Is defendant’s answer sufficient under the federal rules?
a) Timeliness. Was the answer filed within the required time period under FRCP 12(a)(1)?
i) Served. If the defendant was served with process, the defendant has 20 days to respond unless granted
an extension by permission of the court or adverse parties.
ii) Service Waived. If the defendant waives service of process pursuant to FRCP 4(d), the defendant has
60 days to respond.
b) Admissions. Are there allegations that the defendant has admitted? If so, these admitted allegations may
not be argued or disproved later at trial.
i) Implicit Admission. Has the defendant failed to respond to an allegation? If so, the allegation will be
deemed admitted under FRCP 8(b)(6).
c) Denials. Are the defendant’s denials sufficient to deny the allegations made in the complaint? If not,
insufficient denials will be treated as admissions, unless later amendment is permitted (see below).
i) General Denial. Did the defendant set forth a general denial?
(1) Defect: If so, but any part of the allegation is deemed true, the general denial will be
ineffective and the entire allegation will be deemed admitted.
ii) Lack of Information. Did the defendant plead in his answer a “lack of information sufficient to form a
belief as to the truth or falsity of the allegation” under FRCP 8(b)(5)?
(1) If so, the response will be treated as a denial.
(2) Defect: If so, but the information is presumptively within the defendant’s knowledge, the
response will be treated as an admission.
iii) Other Defects. Are there other defects that will make the denial ineffective?
(1) Negative Pregnants and Conjunctive Denials. Is the denial so specific that it leaves
open the possibility of the allegation being true in a technically different way? If so, the denial
may be deemed ineffective.
(2) Response to Substance. The denial must respond to the substance of the complaint
alleged under FRCP 8(b)(2)
iv) Specific Denials. If none of the above defects are exist and specific denials are made, then the answer
is sufficient and the denials will be properly placed before the finder of fact for resolution.
(1) Burden of Persuasion. For all denials, the plaintiff has the burden of persuasion in front
of a factfinder.
d) Affirmative Defenses. Is the defense listed in FRCP 8(c) as a justification or an excuse that would absolve
the defendant of liability even if the plaintiff’s claim is proven true?
i) If so, it must be stated in the initial answer, otherwise it may not be argued later. FRCP 8(B)(6)
(1) The defense has the burden of going forward and proving affirmative defenses
 (2) PRECLUSION is an affirmative defense
e) Pre-Answer Motion to Dismiss?. Has the defendant chosen to make a pre-answer motion under 12(b)
instead of answering?
i) Unclear Claim? Before doing anything else, the defendant may motion for a more “definitive”
statement of claim under FRCP 12(e)
ii) Required Pre-Answer Motions.Is the defendant claiming any of the waivable pre-trial motions?
(1) The following are waivable pre-trial motions:
(a) Lack of Personal Jurisdiction 12(b)(2)
(b) Improper Venue12(b)(3)
(c) Ineffective Process12(b)(4)
(d) Ineffective Service of Process12(b)(5)
(2) If so, they must be asserted initially prior to any other answer or response, and they must
be asserted simultaneously or they will be waived under FRCP 12(h), FRCP 12(g)
(a) BUT they may be added as an amendment “made as a matter of course” without the
court’s permission before the other party’s responsive pleading to the motion or complaint
and 21 days afterwards. FRCP (15)(a).
(b) A removal does not waive the right to make a 12(b) pretrial motion in federal court.
(c) They may also be included in a defendant’s answer instead, assuming no other b(12) motions
have already been made.
iii) Permitted Pre-Answer Motions. Is the defendant claiming any other motion under 12(b)? If so, they
may be raised initially, but they may also be raised in the answer, or any time during the proceedings
and trial. 12(h)(2)
(1) Lack of Subject Matter Jurisdiction12(b)(1)
(2) Failure to Join a Party under Rule 19 12(b)(7)
(3) *Failure to State A Claim Upon Which Relief Can Be Granted 12(b)(6)
14) Pleading in the Alternative. 8(d) Claims (complaints or answers) may be inconsistent, and if one statement is
improper it does not negate the entire pleading.
15) AMENDMENTS. Is the proposed amendment proper under the federal rules?
a) Amendment as a Matter of Course. FRCP 15(a)(1) allows any party to make an amendment “as a matter
of course” without the courts permission
i) Defendant: Within 21 days of answering a complaint15(a)(1)(A)
 (1) If the anwer includes a counterclaim, that may be amended any time before the plaintiff responds
to it.
ii) Plaintiff: Any time before responsive pleading (an answer or 12(b)), is received. 15(a)(1)(B)
b) Amendment not as a Matter of Course. If more than 20 days have passed, should the amendment be
permitted anyway?
i) Leave of the Court FRCP 15 (a)(2) says the court should “freely give leave when justice so requires”,
(1) A liberal standard: permission generally granted by the court as long as the amendment does not
“unfairly prejudice the adverse party” or is not “made in bad faith”
(2) Reviewed on appeal under an “abuse of discretion” standard—rarely overruled.
ii) Adversarial Permission FRCP 15 (a)(2) also allows the other party to permit the amendment,
although the other party rarely agrees to this.
c) “Relation Back” of Amendments. FRCP 15(c) allows certain amendments to relate back to the initial
time of filing.
i) Statute of Limitation Law. 15(c)(1)(A) allows the amendment to relate back if the statute of
limitation in question allows for it.
ii) Amendment Involving New Claim or Defense. 15(c)(1)(B) the amended complaint must have arisen
out of the same “transaction or occurrence” as the original claim in order for it to relate back to the
initial complaint or defense
iii) Amendment Involving New Party 15(c)(1)(C) the amendment must:
(1) Arise out of the same “transaction or occurrence” as the original claim
(2) The party meant to be sued leans of the suit within 120 days of the initial action, in order to allow
the new party to fairly craft a defense. (they must be aware of the current lawsuit, even though
they are not involved yet)
(3) Concern a party that “knew or should have known that it was the intended party in the action but
for a mistake.”
iv) Amendments for Supplemental Pleadings 15(d) Allows to add claims for events that occur after the
original filing of the complaint.
16) RULE 11 VIOLATIONS. Has there been a violation of Rule 11, and if so, should sanctions be imposed?
a) Violation? Has a violation under FRCP 11(b) occurred?
i) Pre-filing Inquiry. Did the attorney conduct a reasonable inquiry into the factual and legal matters
presented in the filing before submitting it to the court? Garr v. US Healthcare
ii) Improper Purpose. FRCP 11(b)(1) Has the filing been made to harass, delay or increase the cost of
litigation?
iii) Frivolous Legal Arguments. FRCP 11(b)(2) Are the legal contentions made in the filing not
supported by the law as it now exists?
 (1) If so, are the arguments for “extending, modifying, or reversing the law or establishing new law”
frivolous?
iv) Unsupported Factual Allegations. FRCP 11(b)(3) Do the factual allegations not have evidentiary
support and are unlikely to after further allegations?
b) Sanctions. If yes to any of the questions above, how should the court proceed with sanctions?
i) Motion. Has the opposing side filed a motion based on Rule 11?
(1) “Safe Harbor” FRCP 11(c)(2) If so, the Attorney allegedly in violation Rule 11 may
with withdraw the challenged filing within 21 days of the Rule 11 Motion.
(2) Once 21 days have passed, the motion is proper and the court may issue sanctions.
ii) On Court’s initiative. FRCP 11(c)(3) The court may direct an Attorney in alleged violation of Rule
11 to show support that it has not violated rule 11
(1) If no cause is shown or the cause is insufficent, the court may then issue sanctions
iii) Nature of Sanctions. 11(c)(4). The court’s sanctions should be served keeping the mind the goal of
future deterrence of Rule 11 Violations.
(1) Only attorney’s, not their clients may be sanctioned for making frivolous legal arguments (find the
rule)
Class Actions 03/11/2010 17:03:00
Class actions are useful for their efficiency: A class action with its binding effects avoids the risk of inconsistent
results and the often prohibitive cost of separate actions, while affording some hope of a manageable format for
joinder.

1) Threshold Requirements FRCP 23(a) sets down four prerequisites before a class action may be certified:
a) Numerosity, 23(a)(1) the class must be so numerous that a traditional joinder of all interested parties
would be impractical
i) There is no magic number, but 40 tends to be a good guideline
ii) If the number of potential class members is unclear, that generally wont prevent a class action,
because the uncertainty makes joinder impractical too
iii) Geography of the potential class members is relevant to practicality of a joinder—if all the plaintiffs
are from the same place, its easier for them to be joined and class action is less necessary.
b) Commonality, 23(a)(2), There must be “questions of law or fact common to all members of the class”
i) Although there may be factual differences, this requirement is satisfied if a substantial issue is common
to all.
ii) Commonality is lacking where factual circumstances not common to all members would require a
court to make individual determinations on that issue for each class member.
c) Typicality,23(a)(3) The named representative of the class must have claims and defenses that are “typical”
of the entire class.
i) The representative’s case should be a fair sample of the rest of the cases—not a stronger or weaker one
based on specific facts in the representatives case.
ii) Should have the same essential characteristics as those of other class members, insuring that the claims
of the absent class members are represented in court.
(1) Did you have more/less knowledge than the average classmember, are there other facts that make
your case different?
iii) If the representative’s claim or defense and those of the rest of the class members stem from a single
event or course of conduct and are based on the same legal theory, typicality will generally be
satisfied.
d) Adequacy of Representation, 23(a)(4) There can be no conflicts of interest between the representative
party and the rest of the class.
i) Same is true for the council of the class, and the competency and experience of the lawyer will also
factor into the adequacy of representation determination.
ii) Class council is specifically scrutinized under 23(g)
2) Types. If the above prerequisites are met, can the class action be certified by falling within the scope of the
distinct types of class actions set forth in FRCP 23(b)
a) “True” (traditional) Class Actions 23(b)(1) available in two situations:
i) 23(b)(1)(A)When individual separate actions would create the risk of inconsistent verdicts among the
class, which would establish incompatible standards of conduct for the defendant (party opposing the
class)
ii) 23(b)(1)(B) When adjudications with respect to individual class members would be dispositive of the
interest of other members or would substantially risk their ability to protect their interests.
(1) Generally a “limited fund” situation
b) Injunctive and Declaratory Relief Class Actions 23(b)(2)
i) Where an injunction or declaration is sought from the court on behalf of the entire class
ii) most used for institutional reform—desegregation, discrimination, ect.
c) Aggregation of Small Claims 23(b)(3) where the similarity between parties is greatly attenuated due to the
conduct of the defendant.
i) Allows small claims that by themselves would not be economically viable suits to be aggregated
(1) to make it feasible to correct group wrongs where no one individual would have the financial
capability to litigate.
(2) If they did have the financial ability to litigate, the same claim would probably become a 23(B)(1)
type class action
ii) Specialized Requirements for a 23(b)(3)
(1) Predominance of Commonality. Common questions among the class must
“predominate” over any questions affecting individual members.
(a) Intended to prevent a class action litigation where the sheer complexity and diversity of
individual issues would overwhelm a jury or severely compromise a party’s ability to present
viable claims or defenses.
(2) Superiority. A class action must be “superior” to other possible methods of adjudication.
(3) In determining the above, the courts considers 23(b)(3)(A-D)
(a) the class member’s interests in individually controlling separate actions.
(b) The extent and nature of any litigation related to the controvery that has already occurred.
(c) The desirability or undesirability of concentrating the litigation of the claims in the particular
forum.
(d) The likely difficulties in managing a class action
iii) Special Rules for the (b)(3) Class Action
(1) Individual Notice. The court must direct to class members notice that is clear, simple
and practicable under the circumstances, including individual notice to all members who can be
identified through reasonable effort. 13(c)(2)(B)
(2) This rule is a codification of the decision in Eisen v. Carlisle & Jacquelin
 (a) Publication notices do not satisfy due process where the names and addresses of the
beneficiaries were known.
(b) Individual notice must be given to those class members who can be identified with reasonable
effort.
(c) The Plaintiff must bear the cost of notice to the members of the class action
(i) This limits the size of classes, because its more difficult to notify a larger class
(ii) BUT: email is an acceptable form of individualized notice, so that’s changing the game.
(3) “Opt Out” Each class number should be advised that he has the right to exclude himself
from the action and the judgment will bind all class members not requesting exclusions Eisen v.
Carlisle & Jacquelin
3) Certification. A class action that meets the prerequisites and fits one of the three types outlined above must be
certified under 23(c)
a) Appeal? The certification or denial of certification may be appealed interlocutory within 14 days of the
judgment of certification under 23(f)
b) Conflicting State Law? If a federal court is hearing a class action in state court, should the federal court be
prohibited from certifying the class action when state law would forbid the class action?
i) NO-- States cannot preclude state-law class actions from being filed in federal court because the
federal rules specifically permit class actions. Shady Grove. v. Allstate
ii) Class actions are an “arguably procedural” FRCP, so federal law must apply.
c) Standard of Review? An abuse of discretion standard for reviewing certification orders.
←
1) Mass Tort- Generally used for products liability suits for alleged defects in nationally distributed products.
a) Although more efficient, class treatment of mass torts for product liability suits may be too difficult to
fairly consolidate under a single class action. Bridgestone/Firestone
i) They often fail the 23(b)(3) special requirement of predominant similarity
(1) Personal injuries are very fact specific—requiring individualized assessment of causation and
damages.
ii) The often fail the 23(a) general requirement of commonality
(1) Choice of law problems: Federal court must apply choice of law rules of the state in
which it sits (Erie, Klaxon). If that state applies a “where the harm occurred test” (lex loci delicti),
the class will have to be analyzed under the laws of many different states.
b) Bridgestone holds that its an abuse of the lower court’s discretion to certify a defective products class with
such a variation among claimants.
2) Settlement Class Actions Special case where the parties arrive a settlement before or shortly after the action is
commenced.
 a) The parties define the class and ask the court to certify it “for purposes of settlement”
b) If the court finds the settlement to be fair, it will certify the class provisionally for settlement purposes only.
i) The court will hold a “fairness hearing” under FRCP 23(e)
c) Amchem Products, Inc. v. Windsor (Ginsburg)
i) To be certified, the class must still meet all of the requirements of a 23(b)(3) class action as if it were
going to actually be litigated.
ii) The only consideration that may be overlooked is 23(b)(3)(D) --whether certification would present
management problems at the trial stage (since the case is not going to be tried)
d) Ortiz v. Fibreboard Corp.
i) A settlement class action does not fall within the 23(b)(1)(B) “limited fund” type of class action
simply because the settling parties have agreed on the size of a funding pool.
ii) applicants for contested certification of a settlement class based on a limited fund theory under Rule
23(b)(1)(B) must show that the fund is limited by more than just the agreement of the parties
iii) Taken together, Amchem and Ortiz indicate that in settlement cases, close scrutiny will be given to the
rights of plaintiffs potentially unrepresented in the class
(1) . Moreover, similar scrutiny will be applied to the reasoning behind the desired certification when
the potential of high fees for settlement class counsel is present.
3) The Class Action Fairness Act. Extreme reform instituted in 2005 to reform class actions to channel most
class actions based on state law into the federal system.
a) Significantly expands diversity jurisdiction of the federal courts, so that they may hear more class action
suits that are based on state law, under the assumption that federal courts are less willing to certify class
actions
i) Prevents lawyers from forum shopping in certain “magnet” state courts for better chances at
certification
b) Amends the diversity statute: 28 USC 1332(d)(2) now allows a federal court to exercise jurisdiction over a
class action where:
i) There is an aggregate amount in controversy of at least 5 Million
ii) There is minimal (not complete) diversity: at least one plaintiff is diverse from one defendant
iii) Exception: where the class action is primarily concentrated in a single state.
(1) If between 1/3 and 2/3 of the potential class members are in-state, the federal court has discretion
in applying its jurisdiction
(2) If more than 2/3 of the potential class members are in state, and at least one “primary
defendant” is also in state, the federal court must decline jurisdiction
c) Also makes removal easier: does not require all defendants to agree to removal, does not prohibit removal
where a defendant is removing from his own state court.
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Discovery 03/11/2010 17:03:00
1) Required Initial Disclosure. What information must be disclosed before any requests are made, under FRCP
26(a)
 a) General Disclosure FRCP 26(a)(1)
i) Supportive Material. Only information to be used in support of the disclosing party’s claim or
defense must be given, not information that may supports the other side:
(1) Names The names of those “likely to have discoverable information” that the disclosing
party might use
(2) Documents Copies or locations of any documents that the disclosing party might use
(3) Damages Computations of damages sought by the disclosing party
(4) Insurance Any relevant insurance coverage.
ii) Time for Disclosure 26(a)(1)(C) lays out the timeframe for the initial disclosure.
(1) Must take place 14 days after the 26(f) Discovery Conference.
(2) 26(f)(1) says the Discovery Conference must take place 21 days before a 16(b)
Scheduling Conference with a judge is held
(3) 16(b)(2) says the Scheduling Conference must take place within 120 days of defendant
being served.
(4) So: if defendant is served on day (X), Scheduling Conference must take place on (X+120),
Discovery Conference must take place on (X+120-21), Initial Disclosure must take place on
(X+120-21+14).
b) Expert Witness Information. FRCP 26(a)(2) information on expert witnesses must be disclosed without
waiting for a request from the opposition:
i) Identity. The identity of any expert witness it expects to call to trial
ii) Report. A report outlining the expert’s conclusion, basis, and qualifications.
iii) Time for Disclosure. This must be completed at least 90 days before trial.
2) Adversarial Discovery. FRCP 26(b) Parties are entitled to seek any nonprivileged information that is “relevant
to any party’s claim or defense” and appears “reasonably calculated to lead to the discovery of admissible
evidence”
a) The fact that a b(12) motion is pending does not mean discovery should stop until it is decided.
i) Interrogatories FRCP 33 Written questions served by one party to another.
(1) May only be served to parties to the lawsuit
(a) May ask no more than 25 questions
 (b) May ask about legal theories, “I don’t know” is not sufficient
(c) Cannot ask follow ups.
ii) Depositions FRCP 30 Examinations of witnesses under oath, recorded for later use
(1) Must send notice to a deponant of subpoena
(2) Attorney’s may object to deposition testimony, but must do so carefully—courts don’t like
depositions that go off record
(3) allows follow up questioning, “I don’t know” is sufficient
iii) Request for Production FRCP 34 Inspections and copies of documents or other tangible evidence in
another party’s custody or control
iv) Mental and Physical Examinations FRCP 35
(1) Must be proceeded by a court order “for good cause shown”, because of the invasive nature of an
examination
(2) Disclosing medical records is complicated by doctor/privilege confidentiality
v) Requests for Admissions FRCP 36 Questions asking to admit or deny the truth of statements
(1) Questions asking to admit or deny the truth of statements
(2) Governed by FRCP 36
(3) Answers cannot be used for any other proceeding (unlike answers that come out in trial which
can)
(4) Parties must pay a fine for any failures to admit that are later proven true.
3) LIMITATIONS TO DISCOVERY
a) Protective Orders. FRCP 26(c) Although the information is discoverable, is there a need to protect a party
from annoyance, embarrassment, oppression, or undue burden or expense?
i) 26(b)(2)(C) allows the judge to make final decisions on limiting discovery.
(1) Based on what grounds?
(a) Duplicative. Is the material unreasonably similar to material already sought and
received?
(b) Less Burdensome Alternative. Is the material also obtainable from source that is more
convenient, less burdensome, or less expensive?
 (c) Missed Opportunity. Has the requesting party already been given ample time to request the
material?
(d) Electronically Stored Information. 26(b)(2)(B) Does the burden or expense of the
proposed discovery outweigh it’s likely benefit?
(2) Good cause must be shown
(3) Allows the court to be very flexible about discovery issues
(a) Can set place, time, limits on discovery
(b) Can set how discovery will be taken, who will have access to it (i.e. media may not see this)
(c) Can limit the scope of a deposition
ii) Motion to Compel FRCP 37(a): Once a party asserts an objection to a requested discovery, the
validity of the objection can be tested (motion to compel and protective order are a two-sided coin)
(1) The party seeking to compel must certify that he has “in good faith conferred or
attempted to confer with the party failing to make disclosure in an effort to obtain it without court
action.” FRCP 3(a)(1)
b) Discovery Sanctions FRCP 37 provides two options in the case of non-disclosure
i) 37(b). If the party ignores the court order to compel, they can be subject to sanction.
(1) Court could dismiss the action, deem the fact sought by the motioning party as established, force
payment of attorney fees
ii) 37(d) allows a the court to impose sanctions directly (without first issuing a court order), if there is a
complete failure to respond to discover (as opposed to not answering specific questions)
iii) All rule 37 sanctions require that the party seeking the motion first make an effort to resolve the
dispute privately with opposing party.
c) Attorney-Client Privilege. If information is otherwise discoverable, and there are no limitations or
protective orders imposed, is the information still protected by a privilege from disclosure?
i) Purpose
(1) Effective legal representation requires full and frank communication between lawyer and client
(2) prevents a client from self-censoring a discussion with his attorney based on a potentially
erroneous understanding of the legal implications of the truth
(3) Allows the Attorney to gather all possible information about the case.
ii) When Valid? When may the Attorney Client privilege protect information from discovery? The
following questions must answer yes:
(1) Communication. Does the material pertain to a communication?
 (2) Protection only for communications, not facts. Stating a fact to your attorney will prevent
it from coming out in discovery, it will only prevent that conversation from coming out in
discovery. Upjohn Co. v. US.
(3) Confidentiality. Did the communication occur in confidence?
(4) If third parties were privy to the communication, it is waived from the A-C privilege.
(5) Between Attorney and Client? Did the communication involve an attorney acting as
such and his client?
(a) Corporate Context. The communications of lower ranking employees are still protected
by attorney-client privilege when protection is necessary to defend against litigation. Upjohn
Co. v. US.
(i) No longer “control group test”, where only employees in a position to control the actions
of the company based on the Attorney’s advice had the privilege.
(ii) Too much important information comes from those outside the “control group”
iii) Inadvertent Production of Privileged Material. Inadvertent production of privileged documents are
protected under FRCP 26(b)(5)(B). They must be returned, and may not be used against the party.
d) Work Product. If information is otherwise discoverable, and there are no limitations or protective orders
imposed, and no A-C privilege, Is the material still protected from discovery by the work-product doctrine?
i) FRCP 26(b)(3)(A) recognizes a protection from disclosure for all materials “prepared by or for a party
in anticipation of litigation”
(1) Does not need to be the lawyers own work. If the client prepares material for the case that is work
product also.
(2) Includes only physical materials—written notes, briefs, ect.
(3) Like A-C privilege, does not protect facts, only documents
ii) Exception. Work Product (that is not legal thought) may still be discoverable IF:
(1) They are discoverable under 26(b)(1) AND
(2) “The party shows it has substantial need for the material and cannot obtain their substantial
equivalent by other means”
iii) Legal Thoughts. 26(b)(3)(B) prevents disclosure of any “impressions, conclusions, or theories of a
party’s attorney”
(1) You cant use discovery to get the other lawyer’s strategy, ect.
(2) NO exceptions.
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Pre-Trial Motions 03/11/2010 17:03:00
1) Ability to Raise the Defense. Is the defense a waivable pre-trial motion under FRCP 12(B)(2)-(5)?
a) If No, it may be raised at any time. Proceed to next question.
b) If Yes, is it being raised before any other defense, objection, motion, or answer has been submitted to the
court?
i) If Yes, it may be raised at this time. Proceed to next question.
ii) If No, it has been waived under 12(h)
2) IMMEDIATE REMEDY REQUIRED? Is some form of immediate remedy required if the plaintiff is to
preserve any hope of obtaining meaningful relief?
a) Is it a case where “justice delayed is justice denied”.
i) Is it a case where the plaintiff is suffering ongoing injury, where a significant delay in court relief will
add additional injury?
ii) Will an impending action will inflict “irrevocable harm”, which cannot be undone by a court after the
fact?
b) Temporary Restraining Order FRCP 65(b) provide immediate injunctive relief until a hearing on a
preliminary injunction may be conducted
i) Must show that the irreparable injury will occur even before a preliminary injunction hearing could
take place
(1) intended to provide emergency relief if the plaintiff is in immediate danger of suffering irreparable
injury.
(2) Aims to preserve the statuts quo until the court has the opportunity to consider whether a
preliminary injunction is legitimate.
(3) Usually requested along with the initial complaint.
c) Preliminary Injunction FRCP 65(a) spare the plaintiff potential injury during the pendancy of the suit
itself.
i) Appropriate Injunction? The test to determine the appropriateness of a preliminary injunction was
clarified in Abbott Laboratories v. Mead Johnson & Co
(1) Initial Requirements A party seeking a preliminary injunction must first demonstrate:
(a) That it has “some likelihood” or a “substantial probability” of succeeding on the merits at
trial.
(b) That it has “no adequate remedy at law”, and that it will suffer “irreparable harm” if
preliminary relief is denied.
(i) If economic harm is impossible to calculate, monetary damages would be an inadequate
remedy.
(ii) Reputation damage is also considered irreparable harm.
 (2) Secondary Considerations If it has cleared these benchmarks, the court must then
consider:
(a) The irreparable harm the non-moving party will suffer if relief is granted balanced against the
irreparable harm the moving party will suffer if it is denied.
(b) The public interest—the consequences of the preliminary relief on non-moving parties and
society at large.
(3) The court then weighs all four factors on a sliding scale
(a) (if more likely to win on the merits, less need to consider harm…)
(b) The decision is reviewed on a discretionary standard.
(c) BUT it may be appealed immediately! 28 USC 1292(a)
ii) “wrongfully enjoined”, where an injunction was granted against it but it later won on the full merits
at trial, the defendant may recover from the plaintiff damage suffered as a result of the injunction.
(1) FRCP 65(c) requires the plaintiff to post a bond when it requests for injunctive relief,
which will be used as this recovery. The court determines the amount for bond.
(2) He may only recover if he wins at trial. If he loses at trial but wins on appeal, he may
NOT recover damages suffered by the injunction
3) MOTION FOR FAILURE TO STATE A CLAIM UNDER 12(B)(6) based only on the initial complaint,
with all ambiguity interpreted most favorably for the non-moving party, is there reason to proceed to trial?
a) Based only on Complaint? Is the motion based only on the initial complaint or is it based on the entire
initial pleading (complaint + answer)?
i) If just complaint, go to next question
ii) If entire pleading, file a 12(c) Motion for Judgment on the Pleadings instead.
b) Factual Challenge? Is the claim based on the factual allegations in the complaint?
i) If no, go to next question.
ii) If yes, the motion will not be granted (in fact, factual allegations must be construed in favor of the
non-moving party)
(1) If the motion is accompanied with additional facts, it may be converted to a motion for Summary
Judgment (see below)
c) Legal Challenge? Is the claim based on the legal sufficiency of the complaint?
i) Does the complaint, assuming all facts to be true, raise legal claims that entitle the claimant to relief? Is
the “wrong” the plaintiff describes not recognized as the violation of any legal rights?
(1) If yes, the motion will not be granted.
 (2) If No, the motion will be granted.
4) MOTION FOR SUMMARY JUDGMENT Under FRCP 56? Based on the complaint, the answer, and
discovery, are there any “genuine issue of material fact” that require a trial to resolve, viewing the case most
favorably for the non-moving party?
a) Where the plaintiff has met the minimal burden to plead the elements of a legitimate claim, but has no way
of proving one or more of those elements.
b) Burden of Proof Which party is motioning for a summary judgment, affecting the burden of proof at trial?
i) Defendant. When a defendant moves for summary judgment, he must only demonstrate a lack of
proof supporting the plaintiff’s claim. Celotex Corp. v. Catrett
(1) not required to show evidence that specifically negates aspects of his opponent's claims
(2) may simply refer to the evidentiary record and show that the other side cannot prove the claim.
(3) Some have interpreted the decision as shifting the burden of proof for summary judgment from the
moving party ("movant") to the respondent
(4) Once this is done, the plaintiff has the burden of persuasion to “set out specific facts
showing a genuine issue for trial” Rule 56(e)(2)
(a) the proof used as rebuttal to summary judgment must not necessarily be admissible evidence,
but it must be possible for that proof to be established by admissible evidence at trial, if
presented in a different form.
(b) Ex: at trial affidavit is heresay, but affidavat shows that that there will be a live testimony,
which is admissible.
ii) Plaintiff. When a plaintiff moves for summary judgment, he must demonstrate not only that his
evidence supports his claim, but that the defendant has not introduced any contrary evidence that
refutes the claim.
c) *New Changes: Now, a motion for summary judgment requires a pinpoint showing of what was lacking in
the non-movants case, rather than a general “he has no evidence”
d) Additional Summary Judgment Rules
i) Rule 56(f) allows a party more time to conduct discovery in light of a summary judgment motion
against them.
ii) Rule 56(d) allows for a partial summary judgment, which will remove uncontested issues from the
trial, but leave contested material issues for a later trial
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Post-Trial Motions 03/11/2010 17:03:00
1) JUDGMENT AS A MATTER OF LAW Under FRCP 50
a) Timing. May the JMOL be entered at this time?
i) Close of the Non-movants Case. The party against whom the motion is being made must have
completed the presentation of it’s evidence
ii) Submitted to Jury? Has the case been submitted to a jury yet?
(1) If no, the JMOL may be entered prior to jury deliberation under FRCP 50(a)
(2) If yes, the JMOL may be entered after jury deliberation under FRCP 50(b) only if a prior
50(a) JMOL has already been entered and denied.
(a) This allows the court to “renew” the earlier motion and preserve through a legal fiction
the 7th Amendment prohibition of reviewing jury verdicts.
(b) Must be renewed within 10 days of the verdict
b) Evidentiary Support? Is the non-movants claim supported by sufficient evidence such that “a reasonable
jury could find in favor of the party?”,
i) or do the facts “point overwhelmingly in favor of the other party, such that reasonable people could not
arrive at a contrary verdict” and doing so would constitute legal error? Dixon v. Wal-Mart
ii) This evidence should be viewed most favorably towards the non-moving party.
iii) Unless no reasonable jury could find for the non-moving party, the JMOL should fail.
c) Standard of Review. A JMOL is a legal issue, and as such it is reviewed de novo by an appellate court.
2) MOTION FOR A NEW TRIAL FRCP 59
a) Timing. Have 28 days passed since judgment was entered in the case?
i) If so, no new trial may be ordered
ii) If not, proceed to next question.
b) Grounds. Are there grounds for ordering a new trial?
i) Legal Errors. Have reversible legal errors been made by the judge or other court officials?
ii) Jury Influenced. Has the jury been improperly influenced by outside sources or “enflamed by passion
and predjudice”?
iii) New Evidence Discovered. Has new evidence been discovered that couldn’t not have been discovered
with due diligence earlier?
 iv) Erroneous Jury Verdict. Does the verdict go against the “great weight of evidence”?
(1) May be determined on a lesser showing than is required for a JMOL.
(2) JMOL requires a serious enough deficiency of evidence to raise a legal issue, new trial does not.
v) Excessive Jury Verdict. Is the damage award “grossly excessive” such that it “shocks the conscious”?
(1) Remittitur. If so, the court may use a remittitur to lower the awarded amount by denying
the motion for a new trial if the plaintiff accepts the lower amount.
(2) Punitive Damages? If so, they may not be awarded for harm caused to non-parties.
Williams v. Phillip Morris
(a) Doing so would be considered an unconstitutional seizure of the defendant’s property without
Due Process.
(b) But, harming other people is a question of reprehensibility, so it may factor into punitive
damages that way.
(c) A matter of how the jury frames the question
(d) “Signpost”: Relationship between compensatory and punitive damages is about 10 to 1.
c) Standard of Review. A motion for a new trial is discretionary, and as such it is reviewed on a
discretionary standard by the appellate court.
Preclusion 03/11/2010 17:03:00
3) CLAIM PRECLUSION—Is the claim barred by a prior adjudication?
a) General:
i) Claim preclusion operates to bar relitigation of claims between the same or closely related parties
where the current claim is transactionally related to the earlier claim and the prior action resulted in an
final judgment on the merits.
ii) The liberality in FRCP in joining parties and claims, making amendment, and other procedural tools
used to insure fair litigation is countered by a very strict system for allowing relitigation.
iii) They encourage finality of decisions (which saves judicial resources) and protection from harassment.
iv) Affirmative Defense! Preclusion must be raised as an affirmative defense under FRCP 8(c)
b) If all 3 requirements are met, the original claim is considered to be “merged” into the judgment and thus
“barred” from future litigation:
i) Same Claim? Is the current claim the same as the claim raised in the prior action?
(1) If the claims are identical this requirement is satisfied
(2) Transactionally Related? Do the claims arise out of the same transaction or connected
series of transactions? §24 Restatment of Judgments
(a) If so, this requirement is satisfied.
(b) Determination of transactionally related should be case-by-case based on several factors:
Herendeen v. Champ Int. Corp., §24 Restatement.
(i) does this affect the rights asserted in the first action?
(ii) Would the same evidence be used?
(iii) Are the same essential facts and issues used?
(iv) Courts will interpret claims as the same broadly in order to encourage joinder
and discourage multiple litigation (judicial efficiency) Herendeen v. Champ Int. Corp
(c) “Splitting Claims?” All legal theories for recovery bases on the same factual circumstances
will be treated as one transactually related claim. Rush v. Maple Heights
(i) You cannot “split” the claim by trying to relitigate the same facts on a different legal
theory to get a “second bite at the apple”
(ii) A plaintiff must raise all claims arising from a single wrong in the first lawsuit. Future
claims based on the same facts that could have been available will be precluded.
(iii) Lawyers must balance the threat of having future claims precluded by not bringing them,
with the ethical boundaries of bringing frivolous claims under Rule 11
(d) Changed Circumstances? Has a new finding, a new injury, or a change in the law
changed the circumstances upon which the original action was decided?
 (i) This will generally NOT suffice to prevent claim preclusion. Federated Dept. Stores, Inc.
V. Moitie
(ii) “The court’s commitment to Res Judicata is extremely strong, and not easily displaced
by countervailing concerns or changed circumstances.”
(iii) In rare occasions, FRCP 60 might allow relief from a final judgment in very
limited circumstances.
1. Mistake, inadvertence, surprise or excusable neglect
2. Newly discovered evidence that wouldn’t have been discovered w due diligence.
3. Fraud/misrepresentation
4. A change in the law will NOT allow use of FRPC 60
(e) Series of Future Occurances? A series of future occurrences aren’t barred by claim
preclusion—people cant sue for what hasn’t happened yet. Restatment 24
(i) Suing for Januarys rent does not preclude you from suing for February’s rent.
(ii) You cannot sue for a wrong that hasn’t occurred yet, so even though similar, the claim
can’t be precluded.
(iii) BUT, situations like this generally involve the same issues—so there may be issue
preclusion that effects how these claims are adjudicated (see below)
ii) Same Parties? Does the current action involve the same parties that were parties to and adversaries in
the original action? (BOTH parties must be the same for claim preclusion)
(1) Identical Parties If the parties are identical this requirement is satisfied.
(a) When two parties reverse roles in a second action (plaintiff becomes defendant, visa versa),
they are not considered the same parties anymore.
(b) BUT this will usually be prohibited by compulsory counterclaim rule (unless it’s a jurisdiction
like NY that has no compulsory counterclaim rule)
(2) Parties in Privity. Does the new party in the current action have a relationship to a party
in the prior action such that the interests of one were represented by the other in the previous
action?
(a) If so, the party is treated as if it were the same party as from the prior action and this
requirement
(b) Examples: co-owners of property, vicarious liability
(3) Different Parties.If different party is involved, there can be no claim preclusion (but see
issue preclusion): everyone is entitled to their day in court.
(a) Even if based on Same Event? Even if based on the same event, each different party
has a distinct claim for res judicada purposes.
(i) A plaintiff’s rights to recover from a separate defendant are considered distinct “claims”
even though they arise from the same transaction or occurance
 (ii) Applies when the party could have been permissively joined but wasn’t.
(iii) Otherwise the “may” of the permissive party joinder rules would be turned into a “must”
iii) Final Judgment? Was the prior action concluded by a final judgment with opportunity to litigate “on
the merits”?
(1) If it based on the validity of the claims at issue rather than on procedural grounds this requirement
will be satisfied.
(2) Procedural Grounds? If it is based on lack of jurisdiction, improper venue, or failure to
join a party under FRCP 19, the resolution of the case does not constitute a final judgment on the
merits. Costello v. US
(a) A dismissal for failure to comply with any other FRCP will be deemed as a final
judgment “on the merits” FRCP 41(b)
(i) Default judgments, summary judgments, JMOL, and failure to prosecute are deemed “on
the merits” because there was an opportunity to litigate on the merits
(ii) This usually includes 12(b)(6) failure to state a claim also (restatement 27 takes that
approach, since it is argues that 12(b)(6) claims are usually allowed to be amended)
(3) Exclusive Federal Jurisdiction? If the first claim could not have been brought in state
court because it is within the exclusive subject matter of the federal courts, it is generally not
considered to have been litigated on the merits.
 BUT see Marrese below for an exception to this rule
(4) Appeal in progress? Under the second restatement approach, an final judgment in the
trial court is all that is needed for claim preclusion. The fact that that final judgment is currently
being appealed does not make the judgment not final.
(a) A judgment is given Res Judicada effect once it has become final in the trial court, even if an
appeal is pending.
4) ISSUE PRECLUSION-has an issue already been conclusively resolved in a prior claim so that it may be
treated as decided by the prior claim?
a) If claim preclusion is inapplicable, collateral estoppel will still prevent the relitigation of an issue that was
actually decided in the first action.
b) Four Requirements necessary:
i) Party’s Bound? Was the party being estopped from arguing the issue in the second claim a party to
the initial claim in which the issue arose?
(1) If not, issue preclusion may not be used to prevent the party from arguing the issue.
Taylor v. Sturgell
(a) "nonparty preclusion" runs up against the "deep-rooted historic tradition that everyone should
have his own day in court."
 (b) Privity? Virtual representation should only be applied rarely and under certain clear
exceptions to the general rule against non-party preclusion
(2) This prevents the use of nonmutual preclusion (below), in cases where the party trying to
use estoppel won on the issue: the party they are using it against never had a chance to litigate the
issue.
ii) Same Issue? Is the issue raised in the prior action identical to the in all respects to the issue raised in
the current action?
(1) The issue may be substantive or procedural
(2) Ex: if the issue of PJ is challenged and then determined in the first suit, that issue may not be
relitigated either
iii) Actually Litigated and Determined? Was the issue actually raised and litigated by the party in the
previous action?
(1) Unlike claim preclusion, it does not matter if the issue could have been litigated, only if it
was actually litigated.
(2) An admission or default judgment in the initial action will not suffice as actually
litigated. Restatement 27
(3) Becomes the essential question for non-mutual preclusion (see below)
iv) “Essential to the Judgment”? Was the resolution of the issue in question essential to the judgment
reached in the first case?
(1) This ensures that the parties had sufficient incentive to litigate the issue fully the first time.
(2) Ask “would a different decision regarding the issue have affected the outcome of the case”?
(3) Multiple Grounds? Is it unclear on which of multiple grounds the first case that raised
the issue was decided?
(a) If so, then the issue may not have been essential to the judgment and cannot be estopped.
Restatement 27
(b) If the court did not determine a clear winner and loser on the particular issue in question even
if a final judgment on the entire claim was reached, that issue cannot be estopped.
(i) Even if the court did determine a clear winner and loser on several issues, those issues
wont be precluded unless its made clear which of them was essential
(ii) If a plaintiff wins on 3 theories, each fully determined, and each theory would have been
sufficient to reach the same outcome, none of the issues can be said to be “essential”
under the restatement approach.
1. Some jurisdictions take opposite approach-that both are precluded.
c) Non-mutual Preclusion? Is this a case where one who was not a party to the initial action is invoking issue
preclusion against an adversary that was a party to it and lost on that issue?
i) If so, this may be an exception to the general requirement of “mutuality”
ii) Defensive Non-Mutual Preclusion. Is this a case where a new defendant is using an issue already lost
by the plaintiff in a prior action as its defense (as a shield)?
(1) If so, the court will generally allow a new party to take advantage of findings in a
previous suit to defend a new action against a plaintiff that was party to that suit. Bernhard v.
Bank of America
(a) The plaintiff who lost on the issue in the first case may not take “a second bite of the apple”
by merely switching defendants and retrying the same issue.
(b) Defensive non-mutual estoppel encourages a plaintiff to join all potential defendants in the
first action, so as not to be precluded from litigating the issue against other defendants later in
case they lose the issue in the first action.
(i) This is good for judicial economy (a major goal of the estoppel doctrine), so the court
usually approves of it.
iii) Offensive Non-Mutual Preclusion. Is this a case where a new plaintiff is using an issue already lost
by the defendant in a prior action as its offense (as a sword)?
(1) If so, the plaintiff might be permitted to take advantage of the findings in a previous suit
against the defendant Parklane Hoisery Co. v. Shore
(2) It will be permitted on a case-by-case analysis that determines if the defendant in the
prior suit had a “full opportunity to litigate” the first time considering: (§29 Restatement (specific
for non-mutual), Parklane
(a) How easy it would have been for the new plaintiff to have intervened or joined in the first
action.
(b) How fair it would be to prevent relitigating the issue, based on whether the issue would have
been litigated differently in the first case than in the second
(i) If the issue was of less importance in the first case so there was less incentive to
aggressively litigate it:
1. Ex: if the issue was the difference of 500 dollars in the first case an 500,000 in the
second case
(ii) If the procedural rules of the first forum made it more difficult to litigate the issue there:
1. Ex: if discovery or evidence rules are different
(3) courts are more hesitant to apply collateral estoppel in an offensive setting than in a
defensive one, because offensive encourages potential plaintiffs to “wait and see”, rather than
intervene in another plaintiff’s case against the same defendant, because they can use the other
plaintiff’s victory to their advantage without having to get involved in the first action
(a) This is bad for judicial economy (one of the major goals of issue preclusion), the courts are
less favorable towards it.
 iv) FNC. Non-mutual estoppel rules in federal courts are not created by any federal statute…they are an
example of Federal Common Law
(1) The state courts may each have different rules for non-mutal estopell…creates choice of law
issues (see below)
d) Standard of Review. Issue preclusion decisions are reconsidered on an abuse of discretion standard.
Kaufman v. Eli Lilly
i) Whether or not the circumstances warrant preclusion or not come down to whether the party being
estopped had a “full and fair opportunity” to litigate in the first suit
ii) Restatement §29 outlines the major considerations.
5) INTERJURISDICTIONAL PRECLUSION. Should preclusion of a claim or issue apply to a second case
tried in a different jurisdiction?
a) A choice of law question: what law does the court in case two use to decide whether the judgment in case
one is entitled to claim or issue preclusion?
b) Full Faith and Credit .The principle of full faith and credit requires that a judgment be given as much
effect where presented for enforcement as it would have had where rendered.
i) Full faith and credit obligations appear in the Full Faith and Credit Clause of the United States
Constitution Article IV, § 1 and in the inplementing full faith and credit statute, 28 U.S.C. § 1738.
c) First Judgment in State Court, Second claim brought in New State Court. the Full Faith and Credit
Clause and statute impose on state courts the requirement to honor the judgments of sister-states as they
would have been applied in the state that rendered the judgment.
i) Follow the first state court’s preclusion laws (“if this claim/issue were brought in the first court again,
would it be precluded?)
d) First Judgment in State Court, Second Claim Brought in Federal Court. The full faith and credit
statute (28 U.S.C. § 1738.) imposes upon federal courts an obligation to recognize and enforce the
judgments of state courts.
i) Follow the first state court’s preclusion laws (“if this claim/issue were brought in the first court again,
would it be precluded?)
ii) Concurrent Jurisdiction? If the issue/claim sought to be precluded was based on federal law, and it
was already litigated in the state court because the state had concurrent jurisdiction on the issue, the
second (federal) court must still follow the preclusion law of the first state. Allen v. McCurry
(1) The court rejected the notion that one has the unencumbered right to have a federal court hear a
federal claim regardless of whether the claim has already been litigated in state court.
(2) There is still a “full and fair opportunity to litigate” when a federal claim is heard in a state court
that has concurrent jurisdiction over that claim.
 iii) Exclusive Federal Jurisdiction? If the claim sought to be precluded is based on federal law, and
could not be litigated in the state court because the claim had exclusive federal subject matter
jurisdiction, the second (federal) court must still follow the preclusion law of the first state. Marrese v.
American Academy of Orthopaedic Surgeons
(1) The court should give no greater preclusive effect because the claim is being brought in federal
court: It should look to the first state’s preclusion law, and only consider making an exception if
that law specifically bars relitigation of the issue/claim.
(2) Applies when a new exclusively federal claim is brought based on the same transaction on which
the first state claim was decided.
(3) The court reasoned that since the both claims could have been brought federal originally (a federal
Q + supplemental), this is not unjust.??
e) First Judgment in Federal Court, Second Action brought in New Federal Court
i) Based on Federal Question? When the case is in federal court based on federal question SMJ, The
federal courts are part of the same system, so they are applying their own preclusion law (federal
common law)
(1) They’re not considering if a different court would/wouldn’t, because they are the same
court. The preclusion law in the first court is the preclusion law in the second court.
(2) That’s what Parklane and Bernhardt were
ii) Based on Diversity? When the case is in federal court based on diversity SMJ, the supreme court has
not yet ruled specifically on this
(1) Semtek, (below), should give some hint though: Still applying federal common law, but
now that law will say to use the preclusion law of the state in which the first court was sitting.
f) First Judgment in Federal Court, Second Action Brought in State Court
i) Neither the Full Faith and Credit Clause of the Constitution nor the full faith and credit statute 28
U.S.C. § 1738 makes provision for federal judgments in state court.
ii) Based on Federal Question? When the first action was in federal court based on federal question
SMJ, the second (state) court should follow the preclusion law of the first federal court.
iii) Based on Diversity? The preclusive effect of federal diversity judgments must be determined by
applying Federal Common Law (since case one was decided in federal court, apply its laws), which
should generally mean applying the preclusion law of the state where the federal court rendering the
first judgment was sitting. Semtek Int’l Inc. v. Lockheed Martin Corp
(1) In diversity cases, that federal common law says the court should look to how the state where the
first (rendering) court is located would treat one of its own judgments
(2) While a federal standard determines the preclusive effect of a diversity judgment, that standard
should normally “borrow” a state standard by looking to what the state in the rendering forum
would do.
(3) The court holds that this rule best limits forum shopping—one of the twin aims of erie.
Appealability 03/11/2010 17:03:00
1) Who May Appeal?
a) Only parties to the original judgment may appeal, unless they are allowed intervene prior to appeal.
b) The party appealing must be “aggrevied” somehow—either ruled against or awarded less than asked for.
c) Class action members can appeal settlements
2) When May They Appeal?
a) “Final Judgment Rule”- generally appellate courts may only review cases after a final judgment has been
rendered. 28 USC 1291
i) A final judgment is one in which “there is nothing left for the court to do but execute a judgment”
ii) Thus, a denial of any motion is not a final judgment…
b) Interlocutory appeals are the exceptions to this rule
i) Injunctions 28 USC 1292(a) says preliminary injunctions (and all other injunctions) may always be
appealed immediately
(1) Both injunctions that are granted and those that are denied may be appealed immediately
ii) Discovery Conflicts. The decision to hold a party in contempy is the only discovery issue that may be
given an interlocutory appeal
iii) Class Action Certification 23(f) says a court of appeals can decide to allow an immediate appeal if
one is filed with 14 days.
(1) Both grants and denials of class action certification may be immediately appealed under 23(f)
3) Multiple Claims and Parties
a) The expansive joinder of claims and parties permitted by the FRCP creates the potential for the final
judgment rule to operate oppressively
b) FRCP 54(b) allows the trial court to weigh case by case whether a party to a final judgment on one of
multiple claims can proceed straight to appeal, or if it must wait for a final judgment on the entire case.
i) The less related to the other claims the finally judged claim is, the more likely the court is to grant its
“certification” to appeal.
ii) At the courts discretion—if there is no “just reason for delay”
4) Collateral Orders
a) Sometimes “collateral orders”—final judgments on issues involved in the case but not actual claims
themselves, may be immediately appealed as well.
 b) The collateral order doctrine entitles a party to appeal from a narrow class of decisions that do not
terminate the litigation, but must, in the interest of achieving a healthy legal system, nonetheless be treated
as final.
c) The conditions for collateral order appeal are stringent to satisfy Digital Equipment Corp. v. Desktop
Direct
i) The doctrine applies only to: those district court decisions
(1) [1] that are conclusive,
(2) [2] that resolve important questions completely separate from the merits, and
(3) [3] that would render such important questions effectively unreviewable on appeal from final
judgment in the underlying action.
(a)
ii) Sovereign immunity falls within this category, so does qualified immunity (Ashcroft v. Iqbal)
iii) The legitimacy of a choice of forum clause in a contract does not, neither does the decision to reopen a
case that has already been settled (Digital)
(1) the court doesn’t see respecting the private contract right as important as the general sovereign
immunity right.
(2) Every time you make a motion and lose, some right is ruined. But that doesn’t make it
appeallable by a collateral order.
(3) Depends on how much we care about the rights created by a given doctrine.
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