Personal Jurisdiction

Basic Concepts
1. Forms of Jurisdiction a. Jurisdiction in Personum i. The court serves the defendant in a case involving personal rights b. Jurisdiction in Rem i. True In Rem (Uncommon): * sues a piece of property (that is attached at the outset) to establish ownership rights of the property against the whole world c. Quasi In Rem i. Type 1: Assertion of rights to a piece of property against a certain specified person. ii. Type 2: The suit is over rights unrelated to the piece of property. The property is attached at the outset of the suit to establish jurisdiction and for the purpose of satisfying any judgments against the defendant. Notice was published. 2. Doctrine of Collateral Attack a. An out of state defendant who loses a case through default judgment (doesnt show up for the original proceedings) may challenge the decision in another state on the basis of lack of personal jurisdiction when the * attempts to have suit brought in that other state for enforcement of a judgment. 3. Special Appearance a. A defendant may show up to a suit and enter it as a special appearance for the sake of challenging jurisdiction. A special appearance will keep the defendants presence at the suit from establishing the courts jurisdiction over them. 4. Full Faith and Credit a. Requires that each state respect the judgment of the courts of other states. Does not apply if the other state court lacked jurisdiction in the first place. 5. Corporations a. Corporations are treated like people b. Corporations are under the general jurisdiction of their incorporating states i. This is due to implied consent derived from the receipt of the benefits and privileges of the state or incorporation ii. This is also due to the heightened regulatory interest of the state of incorporation.

Pennoyer v Neff (#1)

1. Facts: a. M sued N for unpaid legal fees in OR. N was not a state resident but had land that was attached. Default judgment for M, Ns land was sold to P and M collected proceeds. N sued P to establish rightful ownership of the land. 2. Framework established by Pennoyer: a. A state has personal jurisdiction over an out of state resident if one of the following is met: (1) the ( shows up in court; (2) the ( is personally served in the state; (3) ( has in state property that is attached at the outset of the suit; (4) the case affects the personal status of the resident *; (5) ( has contractually assented to an alternative service; (6) ( has appointed an in state service agent.

b. A state can also require that any out of state ( provides a mechanism for receiving process as a condition of doing business in the state. 3. Two Theoretical Bases for Pennoyers Framework a. Consent: The state must retain consent of the governed b. Power: Sovereignty of the states require that they have power (except as limited by the constitution) over those people and properties that are in the state. 4. Problems with Pennoyer v Neff a. Simplistic and unbending framework b. Did not work well with corporations, especially as modernization began c. Too abstract, little basis in public policy

Modern Framework For Personal Jurisdiction

Development of Minimum Contacts & Purposeful Availment
1. International Shoe v Washington (#1) a. Intl Shoe was incorporated in DE but had offices in MO. The company had 13 salespeople who lived in WA but filled no orders in WA and conducted no formal business in WA. WA sued in WA courts for unemployment tax for 13 employees. b. Under Pennoyer framework, no jurisdiction of WA courts because there was no in state service or attachment of property. Court found that WA had jurisdiction because Intl Shoe received benefits/protections of doing business in the state. 2. Test Developed by International Shoe a. Generally: i. A party must have certain minimum contacts within the state ii. Such jurisdiction cannot offend traditional notions of fair play and substantial justice b. As a Rule: i. General Jurisdiction is established when a corporation or person has continuous and systematic business dealing within the state. ii. Specific Jurisdiction is established when a corporation or person has single or isolated activities within the state AND the suit is directly related to those activities iii. No jurisdiction exists when the corporation or person has single or isolated activities within the state and the suit is unrelated to those activities c. Policy: i. Satisfaction of due process doesnt require physical presence; it only requires a certain amount of activity that amounts to an entities enjoyment of the benefits and protections of a state. Once these benefits and protections exist, it is not unfair to require an entity to submit to the states courts. ii. Corporations give implied consent to state jurisdiction by incorporating in states or receiving benefits of doing business in those states. Implied consent is necessary to ensure that state interest in regulation is not denied. 3. Failings of International Shoe a. There is no definition of minimum contacts b. The test is vague and therefore unpredictable c. Only addresses in personam jurisdiction, does not address in rem jurisdiction d. Does not tell us if it applies only to corporations, or to individuals as well. 4. McGee & Hanson a. McGee v International Life Insurance: (#2) 2

i. Court found that a California court had jurisdiction over a Texas insurance company. The company had insured a California citizen, sending reinsurance/other forms after buying out the citizens previous insurer. b. Hanson v Denckla: (#3) i. Court found that a Florida court did not have jurisdiction over a Delaware trustee. The trustee had formed a trust with decedent while she lived in Pennsylvania. She later moved to Florida. The trustee did not do business in Florida and had only sent letters there when requested to do so by the decedent. a. Differences between McGee & Hanson ii. Unilateral Activity: 1. McGee ( intentionally sent mail to * in California to solicit a new commercial relationship with that person. 2. Hanson ( only sent requested mail to a pre-existing client * in Florida, but did not intentionally solicit any commercial activities in that state. iii. State Interests: 1. McGee ( purposefully injected itself into a business relationship in the state of California, thereby evoking protection/benefit of Cali laws 2. Hanson ( did not purposefully avail itself of the privileges/benefits of Florida law. 5. International Shoe Framework After McGee & Hanson: a. General Jurisdiction is established when a corporation or person has continuous and systematic business dealing within the state. b. Specific Jurisdiction is established when a corporation or person has single or isolated activities within the state AND the suit is directly related to those activities i. The contacts within the state must be purposeful. The ( must have purposefully availed itself to the jurisdiction of the states courts c. No jurisdiction exists when the corporation or person has single or isolated activities within the state and the suit is unrelated to those activities

Absorbing in rem jurisdiction

1. Shaffer v Heitner (#3) a. Facts of the case i. * sued current and former directors of Greyhound, all of whom owned stock or options in the company. There was no showing that the (s had any contacts with the state outside of their relationship to Greyhound, which was incorporated in Delaware. The court seized the stock/options of the (s in order to assert (in rem) jurisdiction over the (s. ii. The Supreme Court found that in rem jurisdiction was insufficient to establish personal jurisdiction over the (s. b. Marshalls Opinion i. International Shoe set forth a requirement of fair play and substantial justice for the purposes of satisfying due process. From now on, all assertions of jurisdiction must satisfy the basic tenants of the test set forth in International Shoe (effectively ending Pennoyers in rem jurisdiction). ii. *Note that it is not impossible to argue purposeful availment of Delaware laws by the (, it is possible that the lack of tangible physical connection with the state made this simply too tenuous in this case. 2. Establishing Jurisdiction after Shafer a. Property 3

i. In an unrelated cause of action, the attachment of property is insufficient if there are not other minimum contacts in the state. ii. In a cause of action related to the property (harm on property, dispute over property), that property will be sufficient to establish jurisdiction. b. Directors of Corporations i. States (to satisfy their regulatory interest) can require consent to jurisdiction as the price of accepting a directorship/officer position with a corporation of that state. c. Service in State i. Service of a person inside of the state is insufficient if the cause of action is not related to their presence/contacts in the state and there are not minimum contacts in the state. d. Establishment of Specific Jurisdiction i. ( must have physical contacts within the states territory ii. The (s contacts must have been purposefully made iii. The (s contacts must be related to the claim.

Modern Tests of Specific Jurisdiction

1. Stream of Commerce and Minimum Contacts a. General Rule: i. The Injection of a product into the stream of commerce, without more, does not an act of a ( that is purposefully directed toward a state. Simple injection of a product into the stream of commerce does not create a basis for jurisdiction. ii. However, if the sale of a product is not an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve directly or indirectly the market for its product in other states, it is not unreasonable to subject it to suit in one of those states. iii. The minimum contacts the court looks at are those that are intended to serve a market within the jurisdiction b. World Wide Volkswagen v Woodson (#4) i. Facts: 1. *s bought an Audi in New York from (s. *s filed a product liability suit in Oklahoma against (s after an accident in Oklahoma. (s have no contacts in OK other than people like * who drive through the state. ii. Decision 1. International Shoe doesnt permit jurisdiction on the basis of foreseeability that a product will enter a state. Particular kinds of conduct are required on the part of ( (such as advertising in the state, soliciting retailers in the state, fixing cars in the state) that show an intent to inject itself into that states commercial world. 2. The court suggests the four reasonableness factors: burden on defendant; forum states interest in adjudicating; plaintiffs interest; shared interest of the states social policies. The court also notes that due process will require a showing of minimum contacts even when jurisdiction is reasonable. iii. Policy behind requiring minimum contacts in addition to reasonableness 1. Convenience of jurisdiction cannot override federalism and state sovereignty 2. Reasonableness doesnt necessarily equal fairness to a defendant 3. Reasonableness alone could promote forum shopping 4

Fair Play and Substantial Justice Test 1. Fair Play and Substantial Justice in Asahi v Superior Court a. Facts of Asahi v Superior Court (#4) i. Cheng Shin (Chinese) was sued in a product liability case in California. Cheng Shin joined Asahi (Taiwanese) to the suit for indemnification. Cheng Shin settled out of court with (. The only issue remaining in the court was indemnification of Asahi to Cheng Shin. Asahi does no business in the US and may or may not have been aware that its products were being used in the U.S. b. The Asahi Test for Specific Jurisdiction i. Minimum Contacts 1. Related to the claim 2. Purposeful Availment of the states laws ii. Fair Play and Substantial Justice 1. Convenience to the ( 2. *s interest in suing in the forum state 3. The forum states interest in adjudicating the claim 4. Interstate judicial systems interest in efficient resolution of claims and shared interest of the states in furthering substantive social policies c. OConnor i. OConnors Vision of the Test 1. First, test for minimum contacts. a. If there are no minimum contacts, jurisdiction does not exist. However, if there are minimum contacts, it is then necessary to proceed to the fair play and substantial justice. 2. Fair Play and Substantial Justice a. Used to determine if jurisdiction comports with due process in those situations where minimum contacts have been met, but it may be unreasonable to permit jurisdiction ii. OConnors Application of the Test 1. OConnor finds that injection of a product into the stream of commerce was insufficient to subject Asahi to California jurisdiction. She finds no purposeful availment. She proceeds to fair play for kicks, and finds that fair play wouldnt permit jurisdiction here either. d. Brennan i. Brennans Vision of the Test 1. First, test for minimum contacts. a. If there are minimum contacts, it is necessary to proceed to fair play and substantial justice test. If there are insufficient minimum contacts, it is still necessary to advance to fair play and substantial justice test. 2. Fair Play and Substantial Justice a. If it is unreasonable to permit jurisdiction, minimum contacts wont matter. However, where there are slightly weaker contacts than are typically required, but a very strong showing of fair play and substantial justice, jurisdiction may be appropriate. ii. Brennans Application of the test 1. Brennan believes that minimum contacts existed in Asahi because of the regular and extensive sales of parts to a mfg that Asahi knew was doing 5

business in California. Argues that stream of commerce with knowledge that substantial quantities of a product will enter a state is sufficient for minimum contacts. Still finds that fair play test precludes jurisdiction. e. The Competing Tests i. OConnor wants a set of fairly clear rules with clear limits. She wants a test that is predictable and cannot be manipulated to favor plaintiffs (forum shopping). ii. Brennan wants to create more forums and options for plaintiffs by opening up forums where defendant corporations can be sued. iii. Use of the cases depends on the circuit and the type of suit. Product liability cases tend to use the OConnor approach. Contract/Business cases tend to use the Brennan approach. 2. Expansion of Fair Play and Substantial Justice Test a. Burger King v. Rudzewicz (#5) i. Facts: ( applied for a BK franchise in Michigan. Numerous contract disputes arose, all of which had to be settled through contact with the BK headquarters in FL. ( never went to FL but had repeated and numerous contacts with the BK office in that state. (s contract said that Florida law would govern all disputes. A contract dispute arose and BK sued in Florida court. ii. Decision: The Supreme Court found that FL courts had jurisdiction over ( because ( reached out and purposefully conducted business with a company primarily based in the state of FL. ( purposefully availed himself of the benefits and protections of FL law by entering a contract that said that states law would govern. 1. The dissent argued that this was an unfair result for a ( who conducted all of his business in MI and had direct contact primarily with BKs office in Michigan. b. Brennans Approach to Jurisdiction in Burger King i. Minimum Contacts 1. Fair warning requires a ( to purposefully direct his activities at residents of the forum state and the litigation must result from the alleged injuries that arise out of or relate to those activities. a. Instead of a traditional analysis, Brennan focuses on aiming by asking Is the defendant aware of the contacts he is making? and Is the defendant deriving a benefit from these contacts? 2. Once it is defined that defendant established minimum contacts within the state, the contacts may be considered in light of other factors to determine whether they comport with fair play and substantial justice. ii. Fair Play and Substantial Justice 1. The burden on the defendant 2. The plaintiffs interest in suing in the forum state 3. The forum states interest in adjudicating the dispute (a strong showing of which will overcome a showing of a bad burden on the () 4. The interstate judicial systems interest in obtaining the most effective resolution of controversies & the shared interest of the several states in furthering substantive social policies. iii. Final Determination 1. A strong showing of fair play and substantial justice may serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required 6

2. A defendant who has met the minimum contacts requirement may remove jurisdiction by presenting a compelling case that the lack of fair play and substantial justice would render jurisdiction unreasonable. c. Policy behind and ramifications of Burger King i. Policy 1. States interest in efficient judicial decisions are better suited by having franchisors subjected to a single jurisdiction (ensures predictability). 2. Development of a flexible test that can will work better for the little guy in most situations (but not all, as shown by Burger King) ii. Ramifications 1. Potential for nave franchisors who enter into contracts to have jurisdiction levied against them due to fraud, etc in a way that strips them of true justice a. Brennan argues against this by saying that the Parties sophistication should be taken into consideration in these types of cases to protect nave parties from fraud, duress, etc. Jurisdiction and Aiming 1. Development of Effects Tests a. Calder v Jones: i. Facts: National Enquirer, based in FL, prints libel about Shirley Temple. Temple lives in CA, the sources for the article were in CA, and National Enquirers greatest circulation was in CA. Temple sued the magazine in California courts. ii. Decision: This was more than just an article in the stream of commerce; instead, the (s knew that the article would hurt Temple, would wind up in CA, and would therefore cause Temple pain in CA. Therefore, it was foreseeable that (s would be hailed to court in CA. b. Effects Test i. Minimum Contacts 1. Effects of the (s wrongdoing must have occurred in forum state 2. ( must have purposefully aimed his wrongdoing at *s in the forum state ii. Fair Play & Substantial Justice 1. Typically satisfied. 2. Note that Pavlovich suggests that Fair Play and Substantial Justice factors may favor jurisdiction on a weaker showing of minimum contacts (e.g. no malicious intent) so long as the defendant should have known that the plaintiff was located in the state, if the * has no other forum in which to sue. iii. Typically only seen in cases of international torts. c. Aiming and the Internet i. Pavlovich v Superior Court (#6) 1. Facts: a. Pavlovich does not satisfy normal minimum contacts for CA. He was hailed into court there on the premise of aiming; he left source code for CSS decryption on a website & (s argue that he should have known that this would directly harm CA industries. There isnt evidence that Pavlovich knew who any specific companies within the film/computer industries were. 2. Decision

a. There is insufficient evidence that the ( had enough knowledge to support a finding that he knew of harm directed to a specific * in a specific place. He cannot be liable for harm caused to specific defendants simply because he should have known that his actions could harm an industry in CA. Chart of Tests for Specific Jurisdiction Minimum Contacts (Step One) Requires: OConnor (Asahi) 1. Contacts related to the claim y Includes the occurrence of an injury in the state as a result of use of the defective product; in cases where ( is seller of the goods in the state, many cases will assume the conduct and claim are related and resolve the case under other portions of the Intl Shoe test. 2. Purposeful direction of contacts toward the state: requires evidence of an intent to serve the market for the product. Evidence of purposeful direction includes: a. advertising/solicitation b. service centers c. distribution centers d. authorized dealers Use of FP/SJ Factors (Step Two): A strong showing of FP/SJ factors does not compensate for a lack of purposeful direction. See Asahi Thus, where defendant evidences no intent to serve the market, it does not matter that the state has an interest in the suit or that relevant evidence is found in the state. See World Wide Volkswagen. A weak of showing of FP/SJ, as in Asahi, can defeat jurisdiction even if OConnors version of the minimum contacts test is satisfied. For example, where the defendant deliberately seeks to serve the market for the state, but the plaintiff is not a resident, and the forum has little to do with the subject matter of the litigation, personal jurisdiction would not exist in the forum state, even if the defendant markets the product there. When does the test apply? Stream of commerce cases (e.g. World Wide Volkswagen and Asahi). Even OConnor did not apply it in other types of cases (as in Burger King, where she joined Brennan). The test reflects fears that a foreseeability test will allow *s to forum shop. This test also reflects an attempt to vindicate federalism norms basically, norms favoring imposing limits on each states relative sphere of influence. The two points go together: A really wideopen personal jurisdiction test (say forseeability) could make every car manufacturer subject to suit anywhere their cars travel, which would allow the most * friendly jurisdiction to set tort and product liability policy for the entire country.

Brennan (Burger King)

Purposeful availment requires:

The FP/SJ factors can overcome a weak showing of minimum contacts.

1. Defendants awareness/forseeability Thus, even minimal or of contact with the state fleeting physical contact with the state and y In Asahi, this satisfied questionable foreseeability by Asahis awareness can justify jurisdiction if there is a powerful state that one of the interest in the suit (i.e., component plaintiff is a resident and manufacturers who buys its product sells was injured there), a powerful plaintiff interest a significant volume in the forum (i.e., plaintiff of the product to cannot sue elsewhere, or manufacturers or key evidence is located distributors in the there) or what a court forum state. views as powerful y In Burger King, this is efficiency considerations (in Burger King, the court satisfied by may be influenced by the defendants entry into a view that making one franchise contract in jurisdiction available for which the parties can suits against franchisees is anticipate continuous efficient because it saves communication and the franchisor costs of contact with the litigation in multiple states, franchisors and that cost-saving is headquarters in Fl. passed on to franchisees, and consumers.) 2. Acceptance of a benefit from that contact Calder v. Jones Relatedness to the claim Effects Test and purposeful direction satisfied where: 1. Effect of defendants wrongdoing occurred in the state. 2. Defendant purposefully aimed his wrongdoing at plaintiffs in the state. FP/SJ usually is easy to show, since plaintiff is a resident of the state and was injured there. Pavlovich suggests FP/SJ factors might favor jurisdiction on a lesser showing at step onee.g., perhaps malicious intent to harm is not necessary, so long as defendant should have known plaintiff was located in the state, if plaintiff has no opportunity to sue elsewhere.

Commercial dealings. Some courts apply something like it in some stream of commerce cases to overcome a weak showing of purposeful direction. Brennans test is designed to reduce the costs for plaintiffs of finding a forum to vindicate their rights. It allows courts to find jurisdiction even in cases where the contacts and purposeful conduct of defendant are pretty dodgy, but plaintiffs need for the forum is great: as where plaintiff has nowhere else to sue. In many ways, Brennan is trying to subvert the idea that due process imposes strict limits on the reach of states jurisdictions.

Intentional Tort cases. As Pavlovich shows, many plaintiffs try to analogize cases to Calder, even where intention is difficult to establish, if jurisdiction otherwise would be difficult to establish in the forum under an alternative version of the International Shoe test.

Modern Tests of General Jurisdiction

Continuous and Systematic Business Operations 1. A company that was headquartered in exile in the state of Ohio during WWII was subject the general jurisdiction of Ohio courts. a. Pervins v. Benguet Mining: (#7) i. The owner of a mining company could not conduct business out of the Phillipines during WWII so he conducted all regular business from his home in Ohio for the length of the war. When suit against the company was brought in Ohio, the court found that the companies actions in the state were sufficient to establish general jurisdiction. 2. It is not established what would happen in the event that a company with similar business dealings was not headquartered in exile in the forum state Purchases and Sales 1. Sales: The court will look at the volume of sales of a company into a forum state. Large volumes of sales (3-6% of overall sales), combined with active marketing of a product in the forum state by the company can be sufficient to establish general jurisdiction. 2. Purchases: Mere purchases, even if occurring at regular intervals, are not enough to warrant a States assertion of in personam jurisdiction over a non resident corporation in a cause of action not related to those purchase transactions. (Policy is in encouraging business) a. Helicopteros: (#8) i. The court refused to grant general jurisdiction over a non-resident corporation who had purchased large amounts of its helicopters from the forum state. The court found that pilot training in the forum state was incidental to the purchases and therefore did not give a basis for jurisdiction. Modern Tag Jurisdiction in Burnham v Superior Court (#8) 1. Facts of the Case a. Supreme Court permitted exercise of general jurisdiction on the basis of service of process upon the ( while he was located in the state. ( filed for a divorce in NJ but didnt pursue it. While in CA on business he went to visit his children (who had been relocated there with his estranged wife). He was served at that time with a CA summons and a petition for divorce. 2. Opinions a. Scalia + Three/Four other Justices i. Jurisdiction based on physical presence alone meets due process because it is a long established principle/tradition of personal jurisdiction in the United States. Where a ( is induced by fraud or force to enter the state, such jurisdiction will not stand. ii. Establishment of general jurisdiction based upon continuous and systematic contacts only applies to corporations b. Problems with Scalias Opinion i. Scalia ignores the requirement of Shaffer that all assertions of personal jurisdiction must be examined for minimum contacts. ii. Scalia is therefore refusing to apply the International Shoe test in this case (because he finds it to be too amorphous). Instead, Scalia finds due process satisfied because this form of service satisfied due process at the time the 14th Amendment was ratified.

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iii. The purpose of Personal Jurisdiction rules (limiting forum shopping, etc) are undermined by Scalias test, where any * can pop out of the woodwork and serve a ( who happens to be driving through a * friendly state. c. Brennan + Four other Justices i. Shaffer requires all rules of jurisdiction to comport with modern notions of due process; this requires that it be shown that ( had minimum contacts with the state. ii. General Jurisdiction comports with due process in this case because: 1. ( met minimum contacts by receiving the benefits of being in the state and the privileges accorded by the privileges and immunities clause (it would be assymetrical not to find that he was able to be haled into the court) 2. ( met the fairness consideration because, as this is a traditionally accepted method of asserting jurisdiction, his voluntary presence in the state gave him clear notice that he was subject to suit in the state. iii. The Role of Tradition in Brennans Opinion 1. Notice: Tradition creates common knowledge that someone who enters a state avails himself of being subject to that states courts 2. Minimum Contacts: Tradition creates a presumption of jurisdiction that will only require a weak showing of the minimum contacts in order to be upheld. d. Problems with Brennans Opinion i. Brennans broad reading of benefits received by ( as a form of purposeful availment would mean that almost any ( could be found to have purposefully availed themselves of a states benefits. ii. This problem may be limited by the fact that this test probably cant be used outside of any situation in which traditional rules grant unquestionable jurisdiction. Consent as a Substitute for Power 1. Forum Selection Clauses: Contracting parties can consent to a specific jurisdiction through contractual clauses. a. Analysis of Forum Selection Clauses i. Contract: 1. The court examines the clause for adhesion, duress, or other factors that make the clause unreasonable. ii. Due Process 1. The court asks if the forum selection clause passes scrutiny for fundamental fairness by asking: a. Is the forum chosen a logical choice, or was it chosen for an illegitimate reason? b. Was there fraud or overreaching? c. Was there notice? d. Was the forum too inconvenient? 2. Carnival Cruise Lines v Shute (#9) a. Facts i. Shutes went on a cruise and one of them was harmed. They attempted to sue in their home state, but Carnival contested jurisdiction due to a forum selection clause that limited the forum to Florida. b. Decision i. Although this was a contract of adhesion, it was reasonable and bestowed a benefit on both parties (by limiting possible forums, Carnival can keep rates low). There 11

was no evidence that the forum chosen would discourage suits, no evidence of fraud, and it the passengers had sufficient notice. ii. Therefore, the forum selection clause was valid.

Personal Jurisdiction After Burnham & Carnival Cruise

Service Directed to Person In-State Service Burnham/Pennoyer-style tag or transient jurisdiction is a basis for establishing general jurisdiction without reference to typical International Shoe test. Service Directed to Corporation Burnham suggests a possible basis for jurisdiction based on in-state service of a corporations registered agent. However, Scalia suggests in dicta that International Shoe is the sole basis for asserting general jurisdiction over a corporation International Shoe framework applies: 1. General Jurisdiction is established if the corporation is incorporated in the state or it is their principal place of business

Service Out of State

International Shoe framework applies: 1. General Jurisdiction is established if the individual is a resident of the state or it is their principal place of business

2. Specific Jurisdiction exists if 2. Specific Jurisdiction exists if a. Minimum Contacts The a. Minimum Contacts The individual has purposeful contacts corporation has purposeful contacts with the state and the claim is related with the state and the claim is related to those contacts to those contacts b. FP & SJ is satisfied (1) b. FP & SJ is satisfied (1) convenience for of litigation in convenience for of litigation in forum state; (2) interest of in forum state; (2) interest of in litigating in forum state; (3) forum litigating in forum state; (3) forum states interest in the controversy; states interest in the controversy; and and (4) interest of interstate judicial (4) interest of interstate judicial system in ensuring efficient system in ensuring efficient resolution of claims resolution of claims Consent Carnival Cruise test applies 1. Was their fraud, overreaching, or duress? 2. Does the forum selected have a reasonable relationship to the claims? 3. Was there an illegitimate reason for the choice of forum? 4. Was there notice of the clause? 5. Is the forum too inconvenient? Carnival Cruise test applies 1. Was their fraud, overreaching, or duress? 2. Does the forum selected have a reasonable relationship to the claims? 3. Was there an illegitimate reason for the choice of forum? 4. Was there notice of the clause? 5. Is the forum too inconvenient?

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Notice
1. Generally a. Required by Due Process i. The best notice that is practical under the circumstances ii. Notice that is cost effective iii. Notice that is feasible b. Permitted by Due Process i. Persons who do not receive notice may be bound if the notice provided was reasonable under the circumstances and their interest were adequately represented c. Notice for Multiple Persons i. If multiple persons have the same interest in the suit, a lesser form of notice (like mail) may be adequate because so long as some of the (s have notice, they can adequately represent the other (s. This argument is enhanced by showings that * is poor, personal service is overburdening, etc. ii. When a person in this class does not receive notice personally, they are still bound by the courts decision so long as other members of the class adequately represented their interests. d. Failure to Receive Notice i. (s in a large class who do not receive notice personally, are still bound by the courts decision if members of the class adequately represented their interests. ii. (s who received the best notice required by due process, but did not actually receive the notice can be bound by a court: 1. With registered mail, so long as the mail is signed for at the correct address 2. With ordinary mail, so long as it was the best notice required 3. If all reasonable attempts to notify the ( were taken and failed 2. Types of Notice a. Personal Service i. Preferred if a known ( is in the state and can be located b. Mail Service i. Registered or First Class mail is acceptable with: (1) an out of state ( with a known address; (2) numerous (s; (3) (s who attempt to evade service; (4) indigent *s who cant afford personal service. ii. If a * has reason to believe the ( didnt receive the mail, they must try harder to reach the ( through mail or personal service unless there are a large number of (s c. Publication i. Acceptable when a (s location is unknown and the cost of finding the ( is too high. ii. Acceptable when it is the only way to provide notice to (s because they have contingent interests that may or may not materialize until a later date. 3. Mullane v. Central Hanover Bank & Trust (#9) a. Facts of the case i. NY Banking law required the trustee of a common trust to publish notice of a judicial settlement of accounts in a specified paper once a week for four weeks. The judicial settlement of a trust is final and any rights of beneficiaries against the trustee for actions since the last settlement are terminated after the settlement. The ( followed the minimum procedures for notice. The * appeared specially to object the notice that was given. b. Decision

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i. The States interest in efficient settlement of trusts must be weighed with the due process rights of the beneficiaries. While it is not necessary to provide notice greater than publication to unknown or future beneficiaries, for those beneficiaries that are known, it is necessary to provide at least notice through mail. That notice that will reach the largest number of interested parties with the smallest burden is required, and that requirement is not satisfied by a publication that is unlikely to reach beneficiaries for whom a known address exists (and who already receive mail from the trust on a somewhat regular basis).

FRCP Rule 4
1. Rule 4(c) Service a. A summons must be served with the complaint within 120 days after complaint is filed. Otherwise action is dismissed or time for service extended. Good cause for failing to serve requires the court to extend time for service appropriately b. Service must be by someone who is 18 and not a party. A marshal may be ordered by the court to serve the ( at the *s request 2. Rule 4(d) Waiver a. A * can request that the ( waive service and the ( has a duty to do so. Waiver does not waive any objections to personal jurisdiction/venue. Failure to waive within 30 days (60 outside US) without good cause will result in expenses of service levied against ( 3. Rule 4(e) Serving Someone in the US a. Anyone other than a minor or incompetent may be served by following state law for service or: (1) personal service; (2) leaving a copy at (s home with someone of suitable age and discretion who lives there; or (3) delivering a copy to a service agent. 4. Rule 4(f) a. Permits service on anyone outside of the United States 5. Rule 4(k) a. Generally, serving a summons establishes personal jurisdiction over a ( when they are subject to the general jurisdiction of the state in which the court is located, when it is authorized by joinder, or when it is authorized by federal statute. b. A ( not subject to the jurisdiction of any state court that is served with process for a claim arising under federal law is subject to personal jurisdiction of the federal courts so long as the jurisdiction: i. Is consistent with federal law ii. Does not offend the constitution

Other Restraints on Jurisdictional Power

Long Arm Statutes
1. Generally a. Some states permit state court jurisdiction under any situation that is permitted by the Supreme Court b. Other States limit state court jurisdiction to more specific and limited circumstances, determining the existence of jurisdiction by using a more limited set of criteria (e.g. certain types of contacts) i. Rule 4(k): Federal court jurisdiction is based upon the state in which the Federal court sits. Therefore, the long arm statute of a given state is also the long arm statute of the federal court in that state. 14

2. Gibbons v Brown (#11) a. Facts: i. * sued an out of state woman in FL ct. The woman had sued *s husband a few years prior for damages arising from same facts as *s suit. b. Decision: i. No jurisdiction. Although Fl long arm statutes provide jurisdiction over out of staters who sue in their courts, here the * wasnt a party to the earlier suit, it happened years prior, and there is no activity in the state by ( since.

Venue
1. After a Federal Court circuit is found to have jurisdiction, it is necessary to determine the venue or district in which the case can be brought. See Title 28 U.S.C. 1391 & 1392 2. Generally:
Federal Law 1. A district where any ( resides, if all (s reside in the same state 2. District where substantial part of events giving rise to claim occurred 3. If no other basis for venue exists, a district in which ( may be found Diversity Jurisdiction 1. A district where any ( resides, if all (s reside in the same state 2. District where substantial part of events giving rise to claim occurred 3. If no other basis for venue exists, a district in which any ( is subject to personal jurisdiction

3. Corporations (28 USC 1391 (c)) a. For the Purposes of Venue: A corporation is deemed to reside in any district in which it has sufficient contacts. The questions for corporation residency are the same as those for minimum contacts & FP/SJ 4. Aliens: a. Venue lies in any district. Any district in a state with personal jurisdiction over the alien will be a suitable venue. 5. Substantial Part of Events Giving Rise a. Intended to make suits occur where evidence & parties are located b. Need not be most events only has to be some event that has significant relevance to the claim 6. Fall Back Provision a. For Federal Questions, venue will lie in any district where a ( can be found. However, for Diversity Jurisdiction cases, venue will only lie in a district where a ( is subject to personal jurisdiction. This is one of many instances of expressed preference for Federal Question suits in federal courts. 7. Dee-K v. Heveafil (#11) a. Jurisdiction over alien and proper venue.

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Subject Matter Jurisdiction of Federal Courts

1. Constitutional (Article III) vs. Statutory Grant of Jurisdiction a. Federal Questions i. Article III permits federal courts to hear any case in which a federal claim is raised, even as a defense. ii. Statutory interpretations of 1331 require that a case present a federal question on its face through a well pleaded complaint (defense based on federal question is not sufficient). b. Diversity Jurisdiction i. Article III permits federal jurisdiction where any one person on either side of the suit lived in a state that no one from the other side of the suit lived on. Article III permits representative actions in diversity suits. Article III permits congress to allow diversity claims with one citizen and one alien against another alien. c. Supplemental Jurisdiction i. Article III grants federal jurisdiction over claims that are closely connected to claims that satisfy federal diversity or question jurisdiction. The basis for this is case or controversy 2. Policies behind structure of federal court system a. During the framing of the constitution, it was widely feared that the creation of federal courts would draw all power away from state courts and create a central and all power judicial system. b. The framers used several mechanisms to limit & balance the grant of power to federal courts: i. Only the Supreme Court is a required federal court. All other federal courts are created (or destroyed) by the will of Congress ii. Limited grant of subject matter (what they can hear, as opposed to who they have power over personal jurisdiction) means that, if created, lower federal courts may only hear certain types of cases. 1. There are nine grants of federal subject matter jurisdiction iii. State Courts have concurrent jurisdiction in most cases that can be brought in a federal court. 1. Note that in some cases Federal courts do have exclusive jurisdiction as granted by Congress. 3. Subject Matter Jurisdiction and Collateral Attacks a. ( doesnt show to original trial and brings collateral attack on subject matter jurisdiction during enforcement proceeding in another state i. Collateral Attack is generally available here (though S.Ct. hasnt dealt with it) b. ( shows up at original trial but doesnt raise a subject matter defense. ( then raises subject matter defense on appeal. i. Collateral Attack is available here Federal Courts must dismiss an action anytime they realize they dont have subject matter jurisdiction c. ( shows up at original trial and appeal but doesnt contest subject matter jurisdiction at either proceeding. During enforcement proceeding, ( contests subject matter jurisdiction. i. Not permitted. If ( shows up and there is a final judgment without the issue of subject matter jurisdiction being raised it cannot be raised in an enforcement proceeding.

16

Federal Question Jurisdiction (28 U.S.C. 1331)

1. Policies behind the grant of Federal Question Jurisdiction a. Political Policy i. Federal courts are more sympathetic to federal interests and federal unity than state courts (that may tend to focus on local interests and local bias) ii. Ensures uniformity of the interpretations of federal law iii. Greater competency of the judges iv. Judges are appointed, not elected, and wont worry about re-election b. Plaintiff Policy i. Federal courts have lighter dockets and proceed faster than state courts ii. Federal procedure may give plaintiffs more one ups 1. E.g. Federal discovery process may be more powerful than the states iii. Ideology of the Judges (Federal judges in a conservative state might be more liberal than the state judges) c. Policy of Limiting Federal Question Jurisdiction i. Intended to choose only those cases best suited to be tried in federal court ii. Designed to limit the number of forum shopping plaintiffs.

Well Pleaded Complaint Rule

Development 1. Article III Grant of Jurisdiction & Congressional Authorization a. Article III does not require a well-pleaded complaint b. The Statute authorizing federal question jurisdiction (28 USC 1331) has had the wellpleaded complaint rule read into it. i. Courts have read this into the statute under the assumption that Congress did not intend to grant the full scope of federal court jurisdiction granted by Article III ii. *Note Federal courts will not permit removal to a federal court if the original pleading filed in a state court does not meet the well pleaded complaint rule. c. Congress has explicitly revoked well-pleaded complaint rule in several situations i. Supreme Court can hear appeals of federal questions originally filed in state court, regardless of whether the original pleading was based on a federal question. This ensures that cases in which a constitutional issue arises are not off bounds to the Supreme Court. ii. Suits against a federal officer brought in a federal court that will invoke a federal defense are not subject to the well-pleaded complaint rule. 2. Policy Fueling Well Pleaded Complaint Rule: a. *s seeking to forum shop were previously able to scavenge for potential federal issues that could arise before a ( even answered the complaint. The ( may have a number of possible defenses, and a * shouldnt be able to choose the correct one for him. b. *s that have tactical reasons to get into federal court could easily look for federal defenses and clog up the federal docket, even when there was no important federal issue to be litigated. c. A bright line rule is the best way to limit forum shopping and ensure only true federal questions make it on the federal docket 3. Louisville & Nashville RR v Mottley (#12) a. Facts:

17

i. *s sued (s for breach of contract in federal court seeking specific performance. They argued that a new congressional act did not prohibit performance of the contract, and if the law did do so, it was in conflict with the 5th amendment. b. Decision i. The Supreme Court didnt deal with the merits, instead finding that the lower court did not have jurisdiction. The court found that the claim in this case was for breach of contract and that the further allegations, including that which brought up a federal issue, were responses to expected defenses. Because a federal question did not arise in the cause of action, court found no federal question jurisdiction. c. Original Well Pleaded Complaint Rule i. A suit arises under the Constitution and laws of the US only when the *s statement of his own cause of action shows that the actual cause of action is based upon those laws or that constitution. ii. It is not enough that the * alleges some anticipated defense to his cause of action and asserts that the defense is invalidated by some provision of the Constitution. Modern Well-Pleaded Complaint Rule 1. Cause of Change a. Increasing flexibility and variation in the federal pleading rules has led to changes in what can/must appear in a complaint. 2. Modern Rule(s) a. Simple Test (Federal Cause of Action) i. A claim arises under federal law if federal law creates the plaintiffs cause of action. Where the cause of action is authorized by federal statute or federal common law, this is satisfied. b. Complex Test (State Cause of Action) i. A claim arises under federal law when the cause of action is created by state law but it is necessary to resolve a substantial issue of federal law in order to grant relief. 1. Grable: * sued to recover land sold on IRS lien. * brought a state law cause of action, but as an element of that cause of action, was required to establish superiority of his claim to title. * based his superiority on failure of IRS to give adequate notice (as defined by federal law). a. Ct found that the question of notice (federal question) was the only real issue in the lawsuit, and therefore granted federal question jurisdiction. 2. Empire Health: HMO sued federal employee under federally authorized cause of action in order to recoup benefits received by ( in form of damages following a tort suit. The federal law required of these suits be tried under state law. a. Ct. found that the bigger issue was application of state law, and that federal law only authorized the claim. Therefore, federal jurisdiction was not proper on basis of a federal question. 3. Shortcomings of Modern Rule(s) a. Overinclusivity i. A cause of action arising under the FLSA will be argued solely on the basis of whether or not the employee lied about the number of hours worked. ii. Here, the cause of action is federal, but the question is solely one of fact. b. Underinclusivity 18

i. * makes a libel claim against a newspaper. The papers defense rests entirely on the first amendment. ii. Here, the cause of action is under state law, therefore, despite the major role of federal law in this case, it will not be brought in federal court. 4. Declaratory Judgment Act and Federal Question Jurisdiction a. This act permits anyone who intends to be sued to file suit preemptively seeking declaration that the suit is without merit b. The legislative intent shows that Congress did not want this act to expand federal jurisdiction c. Therefore, a person who brings a declaratory judgment suit in a federal court must be diverting a suit that would otherwise fall under federal question jurisdiction based upon the well pleaded complaint rule. d. Examples: i. RR in Motley could not file declaratory judgment in a federal court ii. Someone who believes that are going to be sued for patent infringement (a federal cause of action) can file for declaratory judgment in a federal court

Diversity Jurisdiction
Background 1. Historical Background a. Standard Explanation i. Diversity jurisdiction is intended to protect out of state litigants from state prejudice ii. Diversity jurisdiction gives the federal government some sway over state law (which will be applied in a diversity jurisdiction case) 1. Where state law is unclear or open to interpretation, federal judges can push the law in certain direction. This may enrich state law iii. Critics argue that this clogs federal dockets and brings cases into federal courts that dont require a federal role b. Constitutional/Statutory Grants i. Article III (Between citizens of different states) & 28 USC 1332

Determining Diversity Jurisdiction

1. Burden of Pleading & Jurisdictional Inquiries a. The party invoking federal diversity jurisdiction has the burden of pleading diverse citizenship. When diversity jurisdiction is challenged, the party invoking diversity jurisdiction will hold the burden of proof relating to the diversity of the parties b. Jurisdictional inquires are full fledged factual inquiries. When jurisdiction is challenged, it can lead to a mini trial in the court based on the issue of jurisdiction. 2. Complete Diversity a. First read into 28 U.S.C. 1332 by Marshall. Requires that all parties on one side of the v. be from different states than those on the other side of the v. 3. Time of Diversity Determination a. Diverse citizenship is based upon, and must exist at, the time the complaint is filed. Subsequent changes in the citizenship of the parties will not affect jurisdiction 4. 28 USC 1332 a. Diversity Jurisdiction exists when amount in question is over $75,000 and between i. Citizens of different states; 19

ii. Citizens of a state and citizens of a foreign state; iii. Citizens of different states and in which citizens of a foreign state are additional parties; and iv. A foreign state, as plaintiff, and citizens of a state or different states as defendants b. To be a citizen of a state within the meaning of 1332, a person must be i. A US citizen or permanent alien resident; and ii. A domiciliary of that state. c. Residence in a state is insufficient to be a citizen of a state i. Domicile is the place of a true fixed, and permanent home and principal establishment and to which he has the intention of returning d. Presence of an alien i. If aliens are on both sides of the v. then citizens must be on both sides of the v. Determining State of Domicile 1. Establishing State Domiciliary a. Determinations of State citizenship for diversity purposes is controlled by federal law b. Modern Test: Citizens are domiciliaries of the state in which they reside (or intent to return to) and intend to remain in indefinitely i. Courts consider the totality of the circumstances in making a determination: 1. Voter Registration 2. Family in the State 3. Purchase of a Home 4. Application for long term employment 5. Stated intent of the parties 6. Length of time already spent in the state 7. Other circumstances surrounding their residence in the state ii. Change in domicile may occur by combination of: 1. Taking up residence in a different state 2. Intending to remain in the different state 2. Mas v. Perry: (#13) a. Facts: *s were French citizen and an American citizen. American * had last permanently lived in MS but had resided as a student in LA for 11 yrs. *s sued (, a Louisiana citizen, for spying on them through a two-way mirror. Suit was brought in federal court on basis of diversity and ( contested jurisdiction. b. Decision: The court found diversity jurisdiction satisfied because * was still a domiciliary of MS. The court found it was nature of students to leave a place after obtaining their degree. The court didnt consider the length of time spent in LA or how long the *s would continue to stay in LA. Failure of ( to bring evidence contrary to *s assertion may have contributed to the decision. Diversity Jurisdiction and Aliens 1. Examples a. Japanese man sues Mexican man in Cali No constitutional or statutory jurisdiction b. Californian sues citizen of Japan & Mexico Jurisdiction under 1332(a)(2) c. Californian & Mexican sue New Yorker & Asian Jurisdiction under 1332(a)(3) d. Californian & Mexican sue Asian No Jurisdiction. Pry okay under Article III tho. e. Californian & Mexican sue Asian who is a permanent resident Alien of NY i. Diversity would appear to exist under 1332(a)(3) because of permanent resident alien status. However, legislative history of the permanent alien resident provision 20

indicates that it was intended to defeat jurisdiction in some cases, but not to expand jurisdiction where it would not have otherwise existed. ii. Some courts stick to plain text and permit jurisdiction. Other courts use congressional intent and refuse to find jurisdiction satisfied here. Diversity Jurisdiction and Corporations 1. Incorporated Corporations a. Corporations are citizens of two places i. State of Incorporation (pry Delaware) ii. Principal Place of Business b. Courts use one of several tests to determine Principal Place of Business i. Nerve Center Test 1. Where is the headquarters/locus of executive decision making? ii. Muscle Test 1. Where is the locus of physical operations? (Most employees, most manufacturing, most operations generally) iii. Consolidated Test 1. Form A a. If the locus of operations is spread evenly across multiple state, the nerve center is the principal place of business. 2. Form B a. Totality of the circumstances test. Examine the Nerve Center and the Locus of Physical Operations to determine which state the corporation has the most contacts with the general public in. Where would the public assume is the main area of the corporation? 2. Unincorporated Partnerships (LLPs) a. Treated as citizens in every state in which a partner or association member resides Amount in Controversy Requirement 1. Congress sets the required amount in controversy for Diversity Jurisdiction. a. It is currently $75,000 2. The amount determination is based upon the original complaint a. The amount that is requested in the original complaint (if made in good faith) is the amount that will govern diversity jurisdiction issues throughout the entire case i. Only in cases of bad faith requests or where it is impossible to a legal certainty for * to receive the amount requested will the original complaint be ignored 3. Aggregation a. A single * with two or more unrelated claims against any ( may aggregate claims to satisfy the statutory amount b. If two *s each have claims against the same (, they may not aggregate their claims if the claims are regarded as separate and distinct c. If two *s have a joint claim (suing for violation of same shared right) they may aggregate their claims. d. If one * has a claim in excess of the statutory amount ($75,001), and a second * has a claim for less than the statutory amount that arises out of the same common nucleus of fact, both *s can sue in federal court. i. Exxon v. Allapattah: If two claims arise out of a common nucleus of fact, both claims may be heard by federal court so long as one is more than $75,000 21

ii. This is because the *s arent actually aggregating; instead, the court is exercising supplemental jurisdiction over the second *. The court already has original jurisdiction over the first * and the (

Supplemental Jurisdiction
Basis 1. Purpose a. Intended to provide a means of bringing related claims together for efficient (and sometimes more effective) litigation 2. Constitutional a. Article III permits federal jurisdiction over claims that are so connected to claims that satisfy federal subject matter jurisdiction. b. The grant of jurisdiction is over case or controversy. The supreme court has read case or controversy to read as all cases that arise from the same dealio, yo (including counterclaims) 3. 28 USC 1367 (The necessary statutory grant of supplemental jurisdiction) a. Section (a) i. Grants supplemental jurisdiction over any claims that arise out of the same case or controversy as a case that the court has original jurisdiction over 1. The court looks for Common Operative Facts b. Section (b) i. Creates exceptions to (a) based on diversity jurisdiction 1. If the basis for original jurisdiction is diversity jurisdiction, the plaintiff cannot join defendants to the suit if doing so would destroy complete diversity 2. Supplemental jurisdiction cannot be used to create diversity. Without complete diversity there is no original jurisdiction and therefore no basis for supplemental jurisdiction. c. Section (c) i. Discretion remand of cases is permitted where there is supplemental jurisdiction if one of the following applies: 1. Claim raises novel or complex issues of state law a. Have the state courts dealt with this issue before? b. Is it an issue that only this state deals with and that the federal judges cant figure out how to apply? 2. Claim substantially predominates over claims within the scope of original federal jurisdiction a. Would proof of the state law claims entitle * to recovery under federal law? If not, would the court spend most of its time factfinding on issues solely related to the state claim? b. Are the facts needed to prove state & federal claims largely the same? c. Are there more state law claims then federal claims? 3. District court has dismissed all claims over which it had original jurisdiction 4. In exceptional circumstances, there are other compelling reasons for declining jurisdiction a. *Rarely used by the courts 4. Notes on 28 USC 1367 (b) 22

a. There is an obvious stated preference for federal question jurisdiction. This is common throughout the statutes/rules and reflects the preference for federal question jurisdiction. b. Note that 1367 (b) does not say anything about joining *s who destroy complete diversity. This was an (recognized) error on the part of the drafters. i. To date, no court has permitted joinder of a * when it would destroy complete diversity under these circumstances. The courts have, however, relaxed the amount in controversy requirement for additional *s joined under this rule. Case Law 1. In re Ameriquest Mortgage (#13) a. Facts: i. * claimed that ( inflated value of her home to increase the loan amount she was offered. She sought to rescind the mortgage and receive damages under federal TILA law. She also alleged state law fraud claims against (. In order to fully recover under TILA, * must fully recover under state law claims. b. Decision i. Supplemental jurisdiction was proper because * expressly linked her federal and state law claims in a way that showed that dismissal of the state law claims would mean insufficient recovery under the federal causes of action. ii. Discretionary remand is not necessary. Although the state law to be applied is very complex, and has not been applied in this manner before, case law in the state is sufficient to provide guidance to the federal court. 2. Szendry-Ramos v. First Bancorp a. Facts: i. * was fired for being a whistle blower. She sued alleging violations of Title VII and various claims under PR law. ii. ( claims that she was an accomplice to unlawful accounting practices (and was fired for valid reasons) and that * cant bring these claims because it would violate her duty as an attorney to keep shit on lockdown. b. Decision i. Supplemental jurisdiction exists because the causes of action are based on the same common nucleus of facts. ii. Discretionary remand is proper because the P.R. claims far outnumber the federal claims and are of a scope that far exceeds the PR claims. Essentially, state law predominates over the federal claims. iii. Furthermore, PR claims require much greater examination and require application of complex/novel PR law. Therefore, it isnt appropriate to have a federal court try this shit. 3. Comparison of the Two cases a. Inextricability of State/Federal cause of action. In re Ameriquest would have resulted in essentially forfeiture if no supplemental jurisdiction. Szendry Ramos, however, resulted in no such forfeiture. b. Tacky-ness. In re Ameriquest appeared to be a case where the claims all naturally fell together. Szendry seemed like a case where the federal claims were just tacked on to get the lady into federal court.

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Removal
1. Purpose a. Because most federal jurisdiction is possessed concurrently with the states, a * could bring a claim in a state court (that could have been brought in federal court) in order to get in state bias. b. If the ( didnt have removal rights in a situation where the federal court had concurrent jurisdiction, we would permit the * too much power over the location of the suit. 2. Statutory Grants a. 28 USC 1441 Removal i. Only (s may remove a state filed action to federal court ii. Action must be removed to federal court in the state where the state claim is pending. iii. Action must have been admissible into federal court from the moment it was filed. iv. Unanimity Rule. All (s must consent to the removal v. Where the basis for removal is diversity jurisdiction, removal is improper if any ( lives in the forum state (home-state rule) vi. A ( who removes where the basis of removal is frivolous will be responsible for the costs of removal b. 28 USC 1446 Procedural Requirements for Removal i. ( has 30 days to remove an action after service of a complaint or learning of the basis for removal ii. If the suit is filed and originally shows no basis for removal, and * amends the complaint in a manner that provides a basis for removal, ( has 30 days after the amendment to remove. Removal must be made within 1 year of the original filing. 1. An admission in discovery (that * intends to seek higher damages) is sufficient basis for removal, even though no formal amendments are made 2. A ( cannot amend the complaint for the * iii. Removal on the basis of diversity jurisdiction is not available more than 1 years after the original complaint is filed iv. Involuntary rulings that eliminate a non-diverse party are not a basis for removal 1. Exception: If the court dismisses claims against non-diverse (s for lack of personal jurisdiction and creates complete diversity, removal is proper. v. Post removal changes to the suit that change the basis for removal do not destroy federal jurisdiction. vi. After a notice of removal is filed in a federal court by the (, the federal court may remand if the * believes the case falls outside of federal jurisdiction. The court may also hear motions to remand if there are procedural defects 1. Motions to remand for procedural defects must be made within 30 days 2. Motions to remand for lack of subject matter jurisdiction may be made at anytime c. 28 USC 1447 i. Remand back to state court is not appealable. Federal trial courts have the last word on whether or not removal is proper. ii. You can appeal from a decision not to remand the case to state court. Flexibility of Procedural Requirements in Removal 1. Generally, subject matter jurisdiction can be contested at any time. Subject matter is based upon the situation present at the time of removal to the federal court. 24

a. As a general rule, jurisdictional defects that remain uncured at the end of a case will require that the judgment be vacated. b. However, in the interest of efficiency, if a case is improperly removed, not remanded, and has the jurisdictional defect cured prior to the end of the case the decision will stand. 2. Lewis v. Caterpillar (#14) a. ( removed the case to a federal court on the basis of diversity of citizenship on day before the one year limitation. At this time, complete diversity did not exist. * contested jurisdiction was rejected. Shortly thereafter, the other ( settled and complete diversity did exist. b. Supreme court ruled that the judgment of the lower court should stand because the procedural error had been cured before the trial was over. Because of the unlikelihood of a case ever getting this far, the court didnt think that people would take advantage of it, but did believe it was necessary for purposes of efficiency. c. Worth noting: The case had gone to trial and included substantial investment; there was a constitutional basis for jurisdiction (incomplete jurisdiction); the case had statutory (complete) diversity by the time the case was over.

The Erie Problem

The Erie Doctrine
Federalism 1. Framers based the constitution on ideas of federalism a. The intent was to decentralize government power to avoid despotism b. Decentralization occurred in two ways: i. Vertical Federalism 1. Constitutional limitations on the ability of the federal government to usurp the power of the states and centralize it for itself a. Article III 2: Only gives the courts limited jurisdiction b. Article I 8: Limits Congress to enumerated powers c. 10th Amend: Reserves all non delegated powers for the states ii. Horizontal Federalism 1. The power given to the states is divided among the many states, and checks are placed on the ability of each state to usurp the power of the others. a. Personal Jurisdiction 2. Rules of Decision Act a. The laws of the several states, except where the Constitution or Acts of Congress otherwise require or provide, shall be regarded as rules o decision in civil actions in the courts of the United States, in cases where they apply. b. Swift v Tyson: overruled by Erie Found that RDA required federal courts in diversity actions to apply any statutes or peculiarly local rulings of state courts. However, in cases where there was no statute, and the ruling wasnt peculiarly local, the federal courts could apply their own version of common law. (So State Common Law didnt need to be applied). i. This decision was based upon the popular belief that common law reflected true laws of reason and was superior to normal (state) court judgments 25

c. Klaxon v. Stentor: Choice of law rules to be applied in a case of diversity are those choice of law rules used by the forum state. Erie Railroad v Tompkins 1. Erie Rule a. Federal courts deciding cases under the basis of diversity jurisdiction must apply not only the stated substantive laws of a State, but must also apply the construction thereof of the local tribunals, as well as the construction of state common law as decided by the states courts. b. (So, RDA requires application of State laws and State common law) 2. Erie v Tompkins (#15) a. Facts i. * (Penn) was harmed in Penn by a RR (incorporated in NY). ii. * sued in NY. Under Penn common law (applicable due to choice of law rules), * couldnt recover. Under Swift, the court applied federal common law, and allowed * to recover b. Decision i. Swifts conception of common law is junk. Common law isnt transcendental, it is the law as decided by the courts. ii. Throw in a constitutional 10th amendment schtick that is largely considered dispensable, and only used to get a majority behind the decision. iii. The real problem is Congressional mandate and federalism: 1. Congress never told the courts to apply federal common law and therefore they should not 2. Courts shouldnt be overriding state courts without a clear mandate to do so this is disrespectful. 3. Policy Behind Erie a. Uniformity of Decisions i. Swift was intended to make uniformity of law and fair application of law by providing an example for state courts to follow. State courts simply have not followed the decisions of the federal courts as intended. b. Prevention of Forum Shopping by Industry i. Swift provided a means for industry and big business to easily forum shop. Erie intentionally limited the ability of forum shopping, in order to help out the little guy who was losing due to forum shopping big guys. - Like Intl Shoe, but opposite Intl Shoe opened up forum shopping to help the little guys. c. Fair Application of Laws i. Swift has led to an unfair application of state law because the selection of a federal court by a non-citizen of the state has robbed the state citizen of the protection afforded by that states common law.

Development of the Which Law Tests

1. Erie told us that substantive rules of state law had to be applied in diversity cases; Erie never said which rules were which outside of their basic definitons a. Substantive: Elements of a claim, Necessity of causation b. Procedural: How to act in court, Filing times 2. Erie didnt tell us how to tell one from the other 26

Outcome Determinative Test (Outdated)

1. Guaranty Trust v New York (#15) a. NY law governed. ( invoked NY statute of limitations & * argued that federal court didnt need to follow the statute of limitations. b. The court designed the outcome determinative test to decide if Erie required the use of a state rule or permitted the use of a federal rule. The decided that using federal statute of limitations would change the outcome (by allowing * to proceed with the case) and therefore, state law applied 2. The Outcome Determinative Test a. Regardless of whether a substantive or procedural label is attached to a rule, if applying the federal version instead of the state version will substantially change the outcome of the suit, the state law must be applied. b. Application: i. State rules about when a lawsuit begins are governing in diversity cases ii. State rules barring arbitration would control iii. State rules barring state corporations from suing something would control iv. General preference to state rules were shown c. Problems i. The outcome determinative test lacked clearly defined limits. Virtually any state rule can affect the outcome of litigation even if the rules are judicial housekeeping rules. Most major parts of the federal rules of civil procedure are outcome determinative in this broad sense of the word.

Byrd v. Blue Ridge Rural Electrical Cooperative (Falling out of use)

1. Byrd v. Blue Ridge Rural Electrical (#16) a. Facts i. * was injured while working as an independent contractor for the (. If state law applied, on remand a judge would hear the case. If federal law applied, on remand a jury would hear the case. b. Decision i. Court found that federal law applied because: 1. There was no reason to believe the State law use of a judge was for any reason outside of procedure it wasnt tied directly to rights. 2. Application of the law could change the litigation, but if so, it would not be such a great likelihood of occurrence that it should change the choice of law used. 3. The state had limited interest in having their rule applied; the federal court had a great interest in having a jury see the case as juries are a constitutional requirement in most situations. 2. Byrd Rule: a. Federal courts in diversity cases must respect the definition of state-created rights and obligations by the state courts. For issues that appear procedural on their face, three questions arise: i. Is the State rule bound up with the rights and obligations (even policies such as prevention of bias will suffice) provided by the State in such a way that their application by federal courts is required? 1. If Yes, State Law applies 2. If No, Move on to step 2 27

ii. Will application of the state rule substantially change the way the litigation will come out (as opposed to if it was not applied)? 1. If Yes, State law applies 2. If No, Move on to step 3 iii. Does the State interest in the application of its rule outweight federal interest in the application of its rule 1. If Yes, State law applies 2. If No, Federal Rule applies b. Problems i. Doesnt provide a lot of guidance for which law should be chosen ii. Doesnt provide a lot of guidance for deciding if the state law is bound up in the rights and obligations provided by the state iii. This test has only been applied in situations involving the Judge/Jury relationship 1. It has never been applied to state rules for standard of review of jury determinations, number people in the jury, etc iv. To the extent that court have engaged in the test and come out in favor of the federal government, they have done it in the exact same context as Byrd

The Hanna Tests (Most Widely Used)

1. Hanna v. Plumer (#17) a. ( was served per FRCP, but not per the laws of the State in which he lived. Because statute of limitations was up the next day (or so) there was no chance to reserve him in the appropriate manner per state rules. b. The court found that the case should not be dismissed. The court said that what Erie was really about what not outcome determination but instead forum shopping and equal administration of the laws. Therefore, the court devised the Hanna rules, under which they found the FRCP in this instance to be controlling over state rules. 2. The Hanna Tests a. Test One: State Rule vs. Federal Rule of Civil Procedure i. Does the Federal rule violate the rules enabling act? 1. It does this if it modifies or limits a substantive right a. If yes, the rule is trumped by state rule. b. If no, move on to questions two. ii. Is the Federal Rule unconstitutional? 1. It is unconstitutional if it is outside of the authority for Congress to adopt under the necessary and proper clause as applied to the inferior tribunal clause or if it violates due process, 7th amend, equal protection, etc. 2. The Question: Is the rule rationally capable of classification as either substantive or procedural? a. If yes, it is constitutional. iii. Only when a rule violates both the Rules Enabling Act and the Constitutional will the rule supersede the federal rule. iv. *To date, no rule has been found unconstitutional or in violation of the rules enabling act (so no state rule of procedure has superseded a FRCP). b. Test Two: Federal Court applying Federal Procedural Common Law (e.g. standard of rule, rules of preclusion). i. Basic Premise: Outcome determination cannot be bright line when federal common law procedure conflicts with state procedural rule. The choice between the laws must be based upon the policies underlying Erie. 28

1. Would applying the federal rule lead to inequitable administration of the laws? (would it result in different outcomes if used by the Federal court in all circumstances as opposed to simply in this circumstance) 2. Would applying the federal rule encourage forum shopping? a. (Note this is not likely) 3. Current Majority Approach a. Is there a powerful federal interest in using the Federal Rule? b. Would applying the federal rule lead to inequitable administration of the laws? (would it lead to different outcomes if used by the Federal Courts in all circumstances as opposed to simply in this circumstance) c. Would applying the federal rule encourage forum shopping? 4. Policy Behind the Hanna Tests a. FRCP are under the control of the Courts per authorization granted by Congress in the Rules Enabling Act (Congress has this power through inferior tribunal clause + necessary and proper). FRCP are intended to control procedure, but may not abridge or modify substantive rules and should retain trial by jury. Therefore, FRCP are Congressionally authorized rules that the courts follow. b. Erie was concerned, in particular, with Federal Courts announcing and using rules that displaced state rules without having been granted Congressional permission to do so. When such authority is clearly granted by Congress (and therefore is in the FRCP), Erie is less concerned about overriding state law, and is more deferential to the Federal Rule. c. When, however, the Federal rule is common law, and therefore not explicitly condoned by Congress, it is necessary to apply greater scrutiny and to ensure that use of the rule complies with the underlying policies of Erie.

Pleading
Stating a Claim
1. Purpose of Pleadings a. To provide the ( with notice about the lawsuit. b. To screen frivolous lawsuits 2. Finding out what is required a. Actual Claims: i. FRCP 8(a)(2) requires: 1. Statement of a legally valid cause of action 2. Fair notice of the nature of the dispute (the facts causing it) ii. General Rule is: 1. Short plain statement that takes into account the elements of the claim on which the action is based and generally provides facts about each element 2. In order to put the ( on notice, the * must show what facts establish the elements (How did the ( breach the contract, What were the terms of the contract). 3. Failure to show how the facts alleged align with the elements of a claim can be an issue of notice of failure to state a claim. b. Challenges i. NOTE OTHER CHALLENGES ii. Rule 12(b)(b) provides: 29

1. The ability to challenge a complaint by arguing that it fails to state a valid cause of action. 2. Note During 12(b)(6) motions, the difference between allegation of fact and allegation of law is important. An allegation of fact will be presumed to be true during review. An allegation of law will not be presumed true. iii. See Hadley v Garrison (pg 352) for an example of a 12(b)(6) challenge 1. ( argued that even if the facts were as * said they were, the law did not recognize a cause of action based upon those facts.

Requiring and Limiting Specificity Under Rule 8

Early No Fact Approach
1. Development a. Historically, rules of pleading were extremely demanding b. FRCP were intended to relax the pleading requirements and permit flexibility i. Rule8 removed the requirement that all facts be stated, but left it unclear what was actually necessary 2. Conley v. Gibson a. Facts: i. Black workers alleged that their union had come to the aid of white coworkers, but hadnt come to the aid of black workers. Without evidence of intent, the black workers claimed that this action was done to intentionally discriminate based on race. b. Decision i. The court used the No Fact approach and found that the complaint sufficiently stated a claim because it included sufficient evidence to show the basic elements necessary for the claim. 3. The No Fact Approach a. The Test i. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. b. What it Changes i. Appears to read the requirement of notice out of Rule 8. ii. Relegates 12(b)(6) motions to situations were no supportable claim is presented (think Hadley v Garrison) c. Policy behind the test i. In an era where racism/Title VII claims were a big problem, it was often difficult for *s to sufficiently state facts in their complaint prior to having the ability to conduct discovery. Without this flexible rule, they would have been precluded from stating claims based around conspiracy, hidden racism, etc. d. Problems with the test i. Expensive Litigation 1. In (say Antitrust) suits where discovery can take a long time and cost millions of dollars, it is not preferable to allow a * to begin the process of discovery witout some factual basis for the suit. This is neither efficient nor fair. ii. Wrongful Settlements 30

1. Permitting baseless claims (especially in expensive discovery situations) could lead to settlements by parties that had done no wrong just to avoid the costs of trial/discovery. a. *s, knowing this fact, would sue just to reap the rewards of settlements

Bell Atlantic v. Twombly

1. Bell Atlantic v. Twombly (#18) 2. The Twombly Rule a. As Provided in Twombly i. In order to give fair notice of the grounds on which the complaint rests, a complaint must contain enough factual matter (that when taken as true) to show that the claim to relief is plausible on its face. ii. Something more than regurgitation of the elements of the cause of action and vague inferences to how those elements are satisfied is required factual allegations that make satisfaction of each element plausible will suffice. b. As applied in 10th and 2nd Circuits i. In some (most complex) cases: *s must plead allegations that, if supported by evidence, would be sufficient for a jury to find for the *. The pleading does not need to contain evidence, merely the basic facts that are intended to be supported by evidence in order to prove the claim. (almost Summary Judgment standard) ii. In other cases: Plausibility requirement depends on context. Plausibility requires pleading of more facts only in cases that require more factual information for proof of the claim because it is necessary to provide more information to put the ( on notice. 1. Whereas a negligence claim is a simple evidentiary requirement and will not require conclusory factual allegations, a class action for discrimination will require more. In such a complex inquiry, it would be necessary to show a greater number of facts that the plaintiff intended to prove through evidence. 2. Basic intent to provide greatest sufficient notice of the relief sought/reason for relief (and sufficient notice will vary depending on the context). c. As applied in the 7th Circuit i. After Twombly, a * is required to plead information that is obviously available to the * based on first hand knowledge of the case. 1. i.e. a * alleging illegal retaliation must give some information regarding the conduct that led to retaliation I did this, and this, and then they fired me ii. Problem w/this stance: It doesnt satisfy Twombly. The *s in Twombly likely could not have pled more than they did based on first hand knowledge. d. For All Practical Purposes: i. If filing a complaint, provide as much information as possible that directly explains/clarifies the claim and how the elements of the cause of action are met. ii. If you are a (, call foul under Twombly any time the complaint is at all vague. 3. Twombly Standard and Summary Judgment a. Twombly by and large uses the same standard as that applied in summary judgment. b. This serves a useful purpose in complex cases, where the courts feel that summary judgment fails to screen out bad cases. This is especially true in class actions because class actions are certified without looking at the merits, and before it is possible to motion for 31

summary judgment therefore, (s commonly settle right after certification, and before summary judgment can be used. i. Note that if this was the true purpose of Twombly, it may have been wiser to simply move up the time at which a ( could motion for summary judgment rather than create confusion about pleading standards.

Heightened Pleading Standards in Special Cases (FRCP 9)

1. FRCP 9(b) a. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge and other conditions of a perosns mind may be alleged generally. 2. What is required under FRCP 9 a. Specific Facts giving rise to a strong inference of fraudulent intent b. Facts related to the particular circumstances of the alleged misrepresentation (time, place, nature of misrepresentation, what the misrepresentation was about, etc). c. Stradford v. Zurich Insurance Co. (#18) i. Facts: ( counterclaimed for fraud when sued by * for failure to pay an insurance claim. ( alleged the timing of the claim and some other facts, but did not state what the alleged basis of the fraud was (what the * had done/said specifically that was fraudulent). ii. Decision: Ct remanded so that ( could plead more specific facts. ( needed to provide facts establishing what * misrepresented and when * did so. It is necessary to give fair notice of the claim and factual ground upon which it is based. 3. Policy Behind FRCP 9 a. Why require specific pleading for Fraud? i. Protection of reputations of those accused of fraud ii. Deterrence of frivolous claims iii. Weeding out of claims that are not fraud as a matter of law. Permitting general allegations might allow *s to skip out on factual allegations that would show they didnt have a fraud claim as a matter of law. 1. (e.g. Puffed Up advertising claims) iv. Fraud claims can arise out of contract issues. Because contract damages are limited to expectation damages, we dont want them to skyrocket with punitive damages (under a fraud claim) without good reason and sufficient notice to the (. b. Note the Policy similarities between FRCP and Twombly i. Both aim to deter frivolous suits and keep costs down. ii. This has led some people to believe that, at least in some cases, Twombly has caused a blur in the distinction between FRCP 8 and 9. This is criticized because Rule 9 was already clear, whereas Rule 8 wasnt. Rule 8 was not drafted like Rule 9, and presumably it was this way for a reason (not to up the ante for non fraud claims). 4. *Sidenote- Why assert fraud? a. Punitive damages. Also, juries are more likely to view a large corporation more favorably for fraud then for claims of breach of a contract by the lil guy.

Burdens in Pleadings
1. Methods for Allocating the Burden a. Rule 8 Affirmative Defenses 32

i. Rule 8(i) provides a long, non-comprehensive list of affirmative defenses that a ( must raise in their answer (or waive their right to raise). 1. By implication, if an issue is not an explicit element of a *s claim, then it is an affirmative defense that must be raised by (. Alternatively, if an issue is an affirmative defense, it need not be raised by * in the complaint. b. Precedent i. In many cases, particularly with common law causes of action, precedent will establish what the elements are that the * must plead in the complaint c. Statutes i. When statutes form a new cause of action, they may state whether an element is an affirmative defense or an necessity of *s complaint 2. Dealing with Statutes that dont allocate the burden a. Method used in Jones v. Block (#19) i. Deciding whether an element of a claim is a pleading requirement or an affirmative defense should be established first by examining the statute that creates the claim. If the statute is silent on the issue, Rule 8 should be examined. If the element is not there, the usual practice regarding the pleading of that element in other causes of action should be considered. Generally speaking, without explicit declarations by statute, courts should not depart from the usual practice under the FRCP on the basis of perceived policy concerns (even when the policy was the purpose for the legislation that established the cause of action). ii. Jones v Block 1. Facts: * sued under a statue that allowed prisoners to sue for mistreatment, but required that they exhaust all administrative remedies. The D.Ct. dismissed *s claim because he didnt provide proof that he had exhausted administrative remedies. 2. Decision: S.Ct. reversed. Finding that the statute contained no allocation of the burden, the court decided to follow the usual practice which is to treat exhaustion as an affirmative defense. b. Alternatives to the Jones v Block method i. When Congress isnt clear on the allocation of the burden of an element, we should use the policies of Congress to allocate the burden. Here, the policy was to weed out meritless claims, which would require making exhaustion a burden on the *. 1. S.Ct. rejects this because: (1) Preference for open access to courts, noting that making any affirmative defense a burden of the * would also screen, but isnt a good idea; and (2) adoption of new standards is not a case by case determination but should be based on usual practice or legislatures determination. c. Comparing Jones to Twombly i. Jones was decided prior to Twombly, and emphasizes use of judicial restraint in changing pleading standards, expressly rejecting the use of policy to change pleading standards (exactly what the court did in Twombly) ii. However, these arent totally distinguishable because Twombly dealt with facts a * already had to state, whereas Jones would have increased the facts a * had to state.

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Ethical Limitations in Pleading and Litigation

Where Courts Receive Power to Sanction
1. Inherent Authority of the Court a. The authority to apply sanctions to attys for their actions that are found to be conducted in bad faith, willful misconduct, or other conduct that shows disrespect for the judicial process 2. 28 U.S.C. 1927 a. Counsels Liability for Excessive Costs: Any atty who multiplies the proceedings in a case to increase costs unreasonably/vexatiously may be required by the court to personally pay the costs incurred because of their nasssssty conduct. 3. FRCP 11 a. When a * or ( (or their lawyer if they have one) signs (as is required) and files a complaint, they certify that to the best of their knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: i. The paper is not presented for an improper purpose (harassment, delay) ii. The claims, defenses, and other legal contentions are warranted by existing law or a nonfrivolous argument for changing existing law. iii. The factual contentions have evidentiary support, or if so identified, will likely have such support after reasonable opportunity for discovery; and iv. Denials of factual contentions are warranted by evidence, or if so identified, are reasonably based on belief or lack of information b. Rule 11 does not apply to disclosures, discovery requests, responses, objections & motions i. Consideration of conduct unrelated to pleadings or paper when deciding Rule 11 sanctions will taint the sanctions and require remand. When other conduct is being considered, sanctions should be based upon another basis for sanctioning.

Application of Sanctions
1. Notes on Rule 11 a. A client may be sanctioned by the court when: i. They are responsible for an attys Rule 11 violation in regard to factual allegations (but never in regard to errors regarding issues of law). b. When information changes: i. A lawyer does not need to officially amend their answer/complaint after realizing they made an error (or didnt find evidence to back up their contention). ii. A lawyer cannot continue to advocate a position after learning of its error c. To whom can the court mandate sanctions be paid: i. When the court makes the motion, sanctions can only be paid to the court ii. If the other side brought the motion, sanctions can be paid to the court or the other side d. Rule 11 sanctions are not mandatory e. Nonmonetary sanctions: i. Letter of reprimand against a lawyer (can lead to disbarment); removal of a lawyer from a case; order the lawyer to do pro bono work or attend ethics class; forbid the atty from pursuing further litigation without the courts permission 2. Walker v Norwest a. Facts: The * brought a diversity case alleging that * was a citizen of SD, (1 was a citizen of MN, and other (s were citizens of wherever, including SD. (1 atty sent * atty a letter 34

asking for dismissal and warning (per R11) that sanctions would be sought otherwise. * atty didnt respond. b. Decision: Atty violated R11 by failing to conduct a reasonable inquiry into the citizenship of named (s and by filing a diversity claim not warranted by known facts (because it was stated a ( was from SD). 3. Christian v. Mattel: (#20) a. Facts: * alleged that ( violated a copyrighted doll. ( provided a doll with a date stamp on its head predating the doll created by *. * failed to listen and refused to withdraw the complaint after served with a motion for sanctions. Court awarded R11 sanctions considering *s filing of a meritless claim and other misconduct. b. Decision: Reversed and remanded because the lower court improperly considered *s behavior outside the realm of pleadings when deciding to award sanctions

Pre-Answer Motions (Rule 12(b))

1. Motions Presented as Defenses Prior to the Defendants Answer a. Lack of subject matter jurisdiction b. Lack of personal jurisdiction (also used to challenge notice) c. Improper Venue d. Insufficient Process (challenge to the form of process) e. Insufficient Service of Process f. Failure to state a claim upon which relief can be granted 2. Effect of a Pre-Answer Motion a. Unless the court sets a different time, serving a motion postpones the answer until 10 days after notice of the courts denial of the motion (if they deny the motion) 3. Purpose of Pre-Answer Motions a. Resolve unwarranted claims on basis of unquestioned law without much time or effort b. Provides extra time to file an answer (instead of 20 days/60 if service is waived, you have until 10 days after court denies the motion). 4. Waiver of Pre-Answer Motions a. Limitation on Further motions (12(g)(2)) i. Except as noted in R(12)(h)(2-3), a party that makes a R12 motion must not make another motion raising a defense that was available but omitted from the 1st motion b. Waiver of Defenses Rule 12(h) i. Any defense not included in the first motion prior to the answer is waived, unless that motion is based on a lack of subject-matter jurisdiction, failure to state a claim, or failure to join a party. 5. Combination of Pre-Answer Motions a. Any Rule 12 motion can be combined with another Rule 12 motion(s) 6. Other Rule 12 Motions a. Motion for Judgment on the Pleadings (12(i)): i. After the pleadings are closed, but early enough not to delay trial, a party may move for judgment on the pleadings. Essentially a 12(b)(6) motion for after the pleadings have been submitted. b. Motion to Strike (12(f)) i. Used to strike material from a complaint that is redundant, immaterial, or scandalous. The court may act on its own or by a motion made by the other side. ii. Most commonly used to strike (s from an answer that are not actually recognized defenses to the *s claim 35

c. Motion for a more definite statement (12(e)) i. Essentially just a 12(b)(6) motion.

The Answer FRCP 8, 10, 11

1. Keep in mind a. Whereas a * can allege various facts in a complaint and use different facts at trial, the ( is bound by the defenses that they advance in the answer (and cant raise others at trial). b. In situations where R 12 defenses are weak, affirmative defenses are strong, and a ( is strapped for cash, it may be wiser to answer instead of filing pre-answer motions c. Answers, like complaints, provide notice to the other side. (s need to be very careful about how they answer allegations because if their answer is misleading, they may be estopped from denying something or otherwise held responsible. 2. Contents of the Answer a. Response to Allegations i. Denial Specific or General ii. Admission iii. Lacking knowledge or information (Effect of Denial) 1. Best used when ( doesnt doubt allegation, but lacks sufficient information to know for sure b. Affirmative Defenses c. Counterclaims

Denials
1. General Denial a. Means that the ( is denying every fact in the allegation. These can be entered against the whole complaint, but this is rare and will typically violate Rule 11. General denials can also be entered against specific numbered allegations. 2. Specific Denial a. Can be entered against specific parts of numbered allegations. E.g. Admit that ( was present here but ( said that. b. Defendants must be very specific about what facts they are denying and what facts they are admitting. The denial must address the substance of each allegation of the complaint. 3. Zielenski v PPI (#20) a. Facts: ( gave a blanket denial to a complaint and failed to specify that they were only denying employment of a specific person (because other facts were true). Because of confusion, * didnt learn that ( wasnt employer until after statute of limitations had run. b. Decision: Ct. estopped ( from claiming that the employee was not their agent on basis of equity. ( had failed to provide an effective and specific denial that provided notice to * of *s mistake. (Note that the payout from either ( would have come from same insurance company) (Also note, R15 would have fixed the situation in the modern era)

Affirmative Defenses (Rule 8)

1. Effect of pleading an affirmative defense a. Admission of Allegations i. Pleading an affirmative defense does not constitute an admission of *s allegations b. Waiver i. Failure to plead an affirmative defense in the answer will result in waiving the ability to plead that defense 36

1. Exceptions: Defense motions that cant be waived 2. Amendment: Answer maybe amended to add defenses in some situations c. Burden of Proof i. Defendant bears the burden of proving to a preponderance of the evidence (over 50%) that his affirmative defense is true/warranted. d. Effect on * i. * need not file a responsive pleading to an affirmative defense ii. If * chooses to challenge the affirmative defense, they can do so by: 1. Motion to strike a defense 2. Motion for partial summary judgment 3. Motion for judgment on the pleadings 2. Counterclaims a. ( can assert a counterclaim against * in the answer b. If ( does so, * has 20 days to submit a responsive pleading if he so chooses 3. Closing Pleadings a. After complaint, answer, and any responsive pleadings are filed, a party will be limited to make a motion for judgment on the pleadings or a motion for summary judgment

Amendments (Rule 15)

1. Rule 15: Amended and supplemental pleadings a. A party may amend its pleading once as a matter of course: i. Before being served with a responsive pleading; or ii. Within 20 days after serving the pleading if a responsive pleading isnt allowed and the action isnt on the trial calendar 2. Policy of permitting amendments a. The FRCP does not want cases decided on technicalities, but instead on basis of merits b. Rule 15 serves the purpose of allowing amendments so that a god defense isnt excluded on the basis of procedural errors. Permission of the court to amend is meant to be granted liberally.

Court Permitted Amendments

1. Rule 15(a) a. Leave to amend shall be freely given when justice so requires. Leave should be given unless there is an apparent reason not to such as bad faith, bad motive, repeated failure to cure deficiencies through prior amendments, undue prejudice to the other side, etc. b. The burden of showing prejudice is on the party opposing the amendment c. Courts will weigh the burden on both sides in considering whether or not to grant leave 2. Beeck v Aquaslide (#21) a. Facts: * was paralyzed while using a waterslide. The slide was supposed to be mfgd by (. Various persons agreed that the slide was mfgd by (. Before the deposition, (s president went and viewed the slide and concluded it wasnt mfgd by (. ( then moved to amend the answer and request a separate trial on the issue of who made the slide. b. Decision: Court permitted amendment and separate trial. Amendment was proper because any prejudice to * was only potential, and required assuming that trial court would find a certain way. New trial was proper for sake of saving time, money, and preparation (as well as not prejudicing ( by bringing in the issue of negligence). 3. Policy against the Beeck outcome 37

a. ( knew of counterfeiting problems. * likely suffered forfeiture due to delay caused by not finding the counterfeiter sooner. It may have been more equitable to hold ( accountable for failing to uncover information that they should have, thus prejudicing *.

Relation Back Amendments

1. Rule 15 Relation Back of Amendments a. An amendment to a pleading relates back to the date of the original pleading when: i. The law provides that the applicable statute of limitations allows relation back; ii. The amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out or attempted to be set out - in the original pleading; or iii. The amendment changes the party or the naming of the party against whom a claim is asserted if Rule 15(c)(1)(B) is satisfied 2. Rule 15 and The Statute of Limitations a. Purpose of the Statute of Limitations: i. Prevent stale claims, Prevent claims after ( has gotten rid of exculpatory evidence, Limit the amount of time a ( can be liable for prior actions, etc b. Rule 15 i. Permits claims to be brought after the statute of limitations if they relate back to a claim made before the statute of limitations had tolled. 1. Note that a new claim will only relate back to the date the first claim was filed, and therefore wont always escape the statute of limitations. 2. E.g. Mean statement made on 4/3/02. Defamation (3 yr S.o.L.) filed on 4/1/05. IIED (2 yr S.o.L.) brought on 5/5/05. IIED claim could not be brought because relation back would only be to 4/1/05, almost a year after the IIED S.o.L. had tolled. ii. Also permits joining of a party after statute of limitations would have run on joining them, if that party had real or constructive notice that they could have been joined, or they should have known that the action would be brought against them but for a mistake concerning the partys proper identity (within the R4m period of time, which is 120 days after the filing of the suit). (e.g. Zelinksi where the real ( should have known that they were the proper () Determining if a Claim Relates Back 1. Considerations for Determining Relation Back a. Would Same/Different set of facts be used at trial for new claim? b. Would Same/Different conduct of the ( be examined at trial? c. Was it the Same/Different time that (s actions occurred? d. Does the original claim put ( on notice of the second claim? i. This is not about whether ( could have intuited the second claim, but whether the facts/theory of the first claim provided notice of the possibility of second claim e. Additional Policy Considerations: i. Should the parties have made this claim earlier because of information available to them at the time of the original claim? ii. If the claim had been brought earlier, would it have saved money/resources for the parties? iii. Is this just a desperate attempt to save the suit? 2. Moore & Bonerb a. Moore v. Baker (#21) 38

i. Claims: (1) Informed Consent: Risk of surgery not made known, failure to inform; (2) Medical malpractice: breach of duty of care, breach caused injury ii. Decision: Denied Amendment. The original complaint focuses on (s acts before surgery, the second complaint focused on (s acts after surgery. The first complaint didnt provide sufficient notice of anything (negligence, etc) alleged in the second complaint. The amended complaint arose out of different conduct/transaction. b. Bonerb v. Richard Caron Foundation (#22) i. Claims: (1) Negligent maintenance: Breached duty to maintain bball court by failing to inspect and keep safe. (2) Counseling malpractice: Breached duty to provide good rehab center by failure to inspect and keep bball court safe. ii. Decision: Permitted Amendment. The second claim arose out of the same facts alleged in the original complaint and the theory of negligence. This gave ( sufficient notice of the facts and theory alleged in the second claim. c. Policy Comparison i. Moore: Discovery had occurred, amendment would have increased cost and caused more prejudice to (. The amendment seemed like a desperate move to keep a suit. ii. Bonerb: Discovery was just beginning. * had just changed counsel and learned of the possibility of a new claim.

DISCOVERY
Role of Discovery
1. Purpose of Discovery a. Information Production and Elucidation i. Emphasis on using litigation to discover the truth b. Promotion of Settlement i. At its best, settlement is a good outcome for litigation 1. When (s expect cost of counsel & estimated loss at trial is less than the * seeks, ( can offer * more than he expects after paying costs of atty, etc. ii. Biggest block to settlement is commonly a lack of knowledge about the case and its merits typically resulting in a * who believes he can win more 1. When a * is overreaching, discovery can correct the *s conclusions about the merits of the case and lower his estimation of what he can win. c. Create conditions for a judicial resolution of a suit without a trial i. Summary judgment 2. Risks of Discovery a. It can cost millions of dollars, especially in complex litigation b. It can be used to coerce the other side into settling on less favorable terms i. * may attempt to serve ( with a lot of cumulative and expensive discovery costs. This will raise (s cost of litigation and may lead to settlements for more than would otherwise be warranted.

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Possibilities of Discovery
Relevance
1. Limitations to Discovery Rule 26(b)(1) a. Requested information must be nonpriviliged and relevant to any partys claim or defense i. *Adopted in 2000 to limit what information could be requested b. For good cause, court may order discovery of any information relevant to the subject matter involved in the action i. *Ensures broad discovery is permissible when necessary 2. Distinguishing Claim v. Subject Matter Relevance a. Claim relevance is information directly related to the facts alleged. Subject matter relevance is information related to the whole circumstances. b. Example of the Distinction: i. * sues Ford claiming strict liability and liability based on negligence due to brake failure in his Escort. Complaint alleges that the failure is due to stress failure of a particular part of the car located behind the wheel. The question is whether the part was sufficiently designed and made to withstand force. 1. Evidence relevant to the claim is evidence relevant to the design/manufacturing of the specific part in question 2. Evidence relevant to the subject matter is evidence relevant to the design/manufacturing of the entire car. Relevance to a Claim or Defense 1. Discovery requests must be narrowly tailored to the claims/facts of the case and relevant to the specific allegations and evidentiary needs of the party. 2. Narrowly Tailored Requests for Information a. Discovery requests must be narrowly tailored and relevant to the specific allegations and evidentiary needs of the party. b. Davis v. Precoat Metals i. Facts: * seeking to establish Title VII claim against their employer sought discovery of complaints made against ( in the prior 4 years by employees in the same positions, at the same location, and for the same reasons. ii. Decision: * request was permitted. Request was narrowly tailored to the specific claims in the case and was relevant in establishing that (s non-discriminatory reasons were pretextual. c. Not narrowly tailored: i. * not entitled to discover complaints made against ( by employees at plants other than the one where * worked Chavez ii. * alleging religion discrimination could not discover complaints based on any & all other forms of discrimination by employer 3. Relevance of Requested Information a. Determining Relevance: i. Courts determine relevance by looking to case precedent, the statutory regime, evidence that could be relevant to a successful claim based on the statute, and the Rule of Evidence. ii. Looking to Underlying Law: 1. In Contracts Cases: (s negligent driving habits are not relevant to his breach of a sales contract 40

2. In Torts Cases: (s wife beating is not relevant to his negligent driving habits 3. Title VII cases: Courts look to what is required to prove Title VII discrimination and legislative intent. b. Steffan v Cheney (note limitations of this case due to administrative review setting) i. Facts: * sought review of administrative decision to discharge him from the Navy due to his stated homosexuality. ( sought to discovery information about *s sexual conduct while in the Navy. (Note administrative review cases may only consider the grounds on which the admin action was based). ii. Decision: This information is not discoverable because it is not relevant to the propriety of *s discharge on the basis of his stated homosexuality. Gay sex was not a part of the discharge and therefore isnt relevant. Subject Matter Relevance 1. Purpose of Discovering Information Relevant to the Subject Matter a. This information may elucidate other/alternative causes of action b. This may provide background information helpful to proving the claim c. This may be useful to undermine the reliability of the ( (by showing other problems, etc) d. Generally allows exploration of all options, all possible claims, and provides the best route to recovery 2. Application a. The Moore * could only discovery information relevant to her consent, and information she did/should have received. She would need to ask the court for permission to discovery information about her surgery, post-op care (which might provide a basis for alternative causes of action). 3. Notes a. Requests for Discovery of Wealth i. Requests for bank account sizes are not even relevant to subject matter in a negligence suit. However, requests for bank account sizes are relevant to subject matter in cases of punitive damages. b. Evidence requested in discovery does not need to be admissible at trial.

Duty to Preserve Evidence

1. Basis a. Federal courts apply federal spoliation law, arising from the common law duty to preserve evidence, because it is a matter derived from the courts inherent power, not substantive law. b. Sanctions for breach are based upon the courts inherent power 2. The Duty a. A litigant, or probable future litigant, has a duty to preserve evidence or give notice of access when they know or reasonably should know that the evidence may be relevant to anticipated litigation. Even when the evidence is not under the litigants control, this obligation exists to the greatest extent possible for the litigant. i. Notice of Access is the litigants duty to provide the other side a chance to view the evidence. It requires telling the other side about the evidence, where it is located, how to get to it, etc. b. The duty to preserve requires preservation of: i. Documents or tangible things related to the claims or defenses of the disclosing party and made by individuals likely to have discoverable information ii. Documents prepared for the individuals noted above 41

3.

4.

5.

6.

7.

iii. Information that is relevant to the claims or defenses of any party, or which is reliant to the subject matter involved in the litigation Sanctions for Breach a. Spoliation sanctions are only permissible when there is a degree of fault. Sanctions should be tailored to serve the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine. Dismissal of a suit should be avoided if a lesser sanction will perform the necessary function (punishment of blameworthy conduct & deterrence). b. Options for sanctions: i. Loss of right to use experts, order that certain facts be considered established ii. Dismissal: Where there is bad faith or extreme prejudice to the other side. c. Adverse inferences regarding the destroyed evidence are available when: i. The party with control over the evidence had a duty to preserve it ii. The records were destroyed with a culpable state of mind (negligence works) iii. The destroyed evidence was relevant to the partys claim or defense in such a way that a trier of the fact could find that it would support such a claim/defense 1. An inference of this is established if the records were destroyed intentionally d. Tort: i. Many courts also recognize a tort action for spoliation of evidence Adverse Inferences a. Are difficult to get without proof of bad faith or very strong circumstantial. Courts want to limit using them because in large litigation, information almost always goes missing. The nature of adverse inferences almost always leads to a lost case/settlement, and therefore courts dont want to use such a strong punishment without proof of bad faith or strong evidence of relevant information having been destroyed. Otherwise, parties would use discovery as a gotcha game to secure opportunity where they otherwise had none. Spoliation as an Opportunity a. Counsel may see spoliation as an opportunity when important evidence cant be found or the case isnt going well. If counsel can show that evidence was destroyed, and get an adverse inference, the case may be won/settled solely on the basis of the adverse inference. Silvestri v General Motors a. Facts: * was injured when he crashed someone elses car. *s atty and two experts examined the car. GM was not notified and the car was destroyed. * then sued GM. b. Decision: Dismissal of the case. *s conduct was not sufficiently blameworthy, although he breached a duty (even though car wasnt his) to provide GM a chance to see the car. However, GM was severely prejudiced because it needed the car to prove its defenses. Zubalake v UBS Warburg (#23) a. Facts: * filed a discrimination complaint with the EEOC. A year later, * filed suit and sought discovery of e-mail tapes on (s backup tapes. Six relevant tapes were missing, despite direct orders not to destroy them. b. Decision: ( breached its duty by destroying tapes after being put on notice via the complaint with the EEOC. Because there is not sufficient evidence that the destroyed tapes contained information that was relevant there was no reason for an adverse inference.

Stages of Discovery

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1st = Rule 26(f) Conference and formulation of discovery plan; 2nd = Rule 26(a) Mandatory disclosures; 3rd = Scheduling Conference of sorts 1. Rule 26(f) Conference a. Parties meet and decide on a discovery plan. This includes deciding the needs of the parties, what will be focused on, when it will focused on, etc. 2. Mandatory Disclosures a. Required i. Names/Address/Phone of persons likely to have discoverable information as well as the topic of that information that the disclosing party may use to support its case, unless the use of that witness is solely for impeachment ii. A copy or description of the location and category of all documents, electronic information, and tangible things that the disclosing party has, unless the use of that thing is solely for impeachment iii. A computation of damages iv. Any insurance agreement that may be used to satisfy all/part of the suit/settlement v. *** Disclosure is only required for information that is available & accessible at the time disclosures are made. 3. Scheduling Conference a. Court reviews/changes the discovery plan. Court sets status conferences for updates. Court sets a trial date. 4. Disclosure of Expert Witnesses (90 days before trial) a. If the expert witness is solely being used to rebut testimony of the other partys expert witness, the disclosure may be made 30 days before trial 5. Disclosure of ordinary witnesses (30 days before trial) a. Not Required i. No need to disclose witnesses who you know of, but who wouldnt help your case ii. No need to disclose witnesses who testify to information that is not relevant to the claim (such as witnesses who testify about wage amounts for damage purposes) 6. Amended Disclosures a. Rule 26(e) requires disclosure of information that a party learns after mandatory disclosures, if they have reason to believe the other side wont learn the same information

Discovery Tools
1. Use of Discovery Responses a. Provide basis for motions for summary judgment b. As evidence at trial i. Responses to interrogatories can be submitted at trial ii. If deponent is a party, deposition can be used at trial (and as impeachment) iii. If deponent is a witness, deposition can be sued for impeachment or in lieu of testimony if the witness becomes incapacitated/unavailable.

Interrogatories (Rule 33)

1. Defined: A series of questions sent to the other side that must be answered under oath a. Cheaper than depositions b. Can be used to request information about asserted privileges c. Lack the ability to use follow up questions

43

d. Parties can refuse to answer a question in an interrogatory on the basis of privilege. They must however state the reason for the objection and answer the question to the extent it is not objectionable. 2. Only parties can be sent inaterrogatories a. Compulsion by a non-party can only occur through joinder (as a party) 3. There is a 25 interrogatory limit per recipient a. Some courts permit refusal to answer any interrogatories if the limit is passed. Other courts require answers up to the limit.

Depositions (Rule 30-32)

1. Timing a. Cannot be conducted until after the discovery schedule has been decided on b. Because of complexity and importance, depositions are best conducted after sufficient discovery has occurred and information has accrued to formulate questions 2. Limitations a. 10 Deposition limit. Courts may grant leave for more if necessary 3. Corporations a. Parties can depose a corporation and give notice of the matters being examined at the deposition. The corp. must then designate the best person to take the deposition. The corp has a duty to provide the best deposee and will be bound by the deposees statements at trial. An unprepared deposee is equal to failure to appear for the deposition. 4. Objections a. A lawyer may object to a question and give the reason for doing so, but except where privilege is involved, the question must still be answered. Failure to answer permits the deposing party to seek compulsion of discovery and a new deposition.

Request for Admission Rule 36

1. Purpose a. A means of eliminating certain facts (without use of other limited discovery tools) at an early stage in the came. b. Limited to requests for admission of facts, not matters involving law or opinions. Acceptable examples include Do you admit you were driving a yellow Pontiac? 2. Responses a. Objection based on belief the evidence is inadmissible, denial, admission, lack of knowledge b. If a party lacks knowledge, they must conduct a reasonable inquiry into the facts before responding that they lack knowledge. This does not, however, require considering another partys witness as being credible. 3. Binding Effect a. Admissions are binding in the suit during which they are conducted b. Admissions are not binding in subsequent suits.

Document Production Request Rule 34

1. Can only be given to a party. Non-parties must be served with a subpoena. 2. Use: a. Request documents and other tangible things (ie those noted in the mandatory disclosures) from the other party in preparation for depositions 3. Process a. Parties must specify the item or category of items to be inspected with reasonable particularity 44

b. The other party need not send documents, but may make them available for examination

Physical and Mental Examinations Rule 35

1. Not available as a right. Only available as ordered by the court after a showing of good cause. a. Generally must be required and of utility for the other partys case 2. A party who is examined may request the records of the examination a. By so requesting that party removes any privilege they had regarding their condition b. A party who provides the examined party with the records may then request all earlier/subsequent records of the persons physical exams.

Limitations on Discovery
1. Privilege Objections to Discovery: a. Rule 26(c) allows the limiting of discovery even if it is relevant, to protect a party or person from annoyance, embarrassment, oppression or undue burden and expense. b. Courts may limit discovery when i. The discovery sought is unreasonably cumulative or duplicative or is better attainable from another source that is less burdensome or less expensive. ii. The party seeking discovery has had ample opportunity by discovery to obtain the information sought iii. The burden or expense of the proposed discovery outweighs its likely benefit.

Attorney-Client Privilege
1. Scope of Protection a. This is the clients privilege b. Protects communications between client and lawyer but not the facts communicated i. So if moller tells his lawyer I was drunk as shit last night and ran a red 1. He cant be asked what he told his lawyer 2. He can be asked how many drinks he had before driving. 2. General Test a. Attorney-Client privilege protects a communication between a client and the clients lawyer. The communication must be made in confidence. The communication must be made for the purpose of obtaining legal services. i. In some jurisdictions, attorney-Client privilege will exist between an individuals agent (ie their accountant) and the individuals attorney if the communication is made for legal advice on the clients case but this isnt necessarily so. Note that this is different than with corporations where the accountants statements would certainly BE covered. b. With corporations, the attorney represents the corporation as an entity, not the individuals employed by the corporation. Any member of the corporation may be covered by attorney client privilege if the communication is: (1) made by an employee; (2) made to corporate counsel acting as such; (3) made at the direction of corporate superiors; (4) to secure legal advice from the counsel for the corporation as an entity; and (5) related to matters within the scope of the employees employment. i. Upjohn dealt with this: 1. Prior to Upjohn, lower courts said that only the upper management was able to speak for the corporation and therefore have attorney client privilege if certain conditions are met. 2. In Upjohn, the Supreme Court recognized that statements of any member of the corporation may have atty-client privilege if 45

a. The communication must be made by corporate employees b. The communication must be made to corporate counsel acting as such c. The communication of the employee must be made at the direction of corporate superiors. d. The communication must be to secure legal advice from the counsel for the corporation as an entity. e. The communications must relate to matters within the scope of the employees employment. 3. Waiver of Privilege a. Note that privilege can be waived for several reasons: i. Disclosure of the communication made to the lawyer to another person ii. Inclusion of another party when the communication was made to the lawyer iii. Other situations were the expectations of privacy are limited/nonexistent 4. Note the Fifth Amendment Privilege against self incrimination a. Under this, a person cannot be forced to testify in a way that would incriminate themselves. This only deals with testimony that may expose someone to criminal liability (but it can be invoked in civil cases). This privilege bans compelled testimony when that testimony would create the basis for criminal charges.

Trial Preparation Material Work Production Privilege Rule 26(b)

1. Work Production Privilege is crafted from Rule 26 and broadened by Common Law a. Rule 26: i. Says that generally a party cannot discover documents or tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including attorney, consultant, investigator, etc). 1. Exceptions: The materials are otherwise discoverable AND: a. The party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain substantial equivalent by other means. ii. If information is compelled to be turned over, the court must protect against disclosure of the mental impressions, conclusions, opinion, or legal theory of a partys attorney or other representative about the litigation b. Common Law i. Distinguishes between notes, memos and other trial preparation materials that are less likely to convey a lawyers mental impressions and those notes, recollections, etc of an oral interview, etc that are likely to show mental impressions and legal theories. Notes unlikely to hold mental impressions are discoverable if they are essential and noncompulsion would cause prejudice. Notes likely to hold legal theories or mental impressions are probably never subject to discovery. ii. Hickman v. Taylor (#22) 1. Facts: a. (s counsel privately interviewed several witnesses to an accident. Public interviews of the witnesses had been conducted and recorded. *s atty sought to get the information obtained during the private interviews conducted by (s counsel. 2. Decision: 46

a. Refused to compel discovery. First, *s atty couldnt show that they would be prejudiced, as interviews with the witnesses were already on public record. Furthermore, the information sought was likely to be full of ( attys personal mental impressions and notes, something that is protected and beyond the scope of discovery. c. Waiver i. Presumably, negligently turning something over to the other party could constitute a waiver. (but telling them it exists, etc will not unlike atty-client privilege). ii. Rule 26 says that if such work is produced accidentally, the producing party must notify the other party (who must destroy/return it) and then the court must decide how to move ahead. 2. Scope of Protection a. What isnt Protected i. A Parties Previous Statements to the Other Party 1. A party or other person may request his own previous statement about the action or its subject order. A previous statement is: a. A written statement that is signed or otherwise recorded or a transcription that recites substantially what was said verbatim ii. Reports, photos, documents that would have been created regardless of the pending litigation (trial prep must be but for cause of the creation) iii. Materials that are collected but not created for litigation iv. Identities of eyewitnesses b. What is Protected but can be discovered with showing of need i. Reports, photos, documents, directly transcribed interviews that were created solely for the sake of trial preparation ii. Photo taken by a private investigator hired for the lawsuit (if it was impossible for other side to get the same photo, it would likely be discoverable) c. What wont courts let be discovered i. Attys written summary of a witness telephone conversation it showed too much of the attorneys mental impression ii. Recollections of an interview and other intangibles likely to convey the attorneys mindset, etc (based on common law, not rule 26). iii. Personal notes about impressions, etc, that are steeped in attorneys thoughts and theories. iv. Identities of eyewitnesses that have been interviewed (shows legal theory) v. Possibly an independent interviewers recollection of an interview if the investigator isnt likely to hold the same mindset as the attorney. 3. Policy of Work Production Privilege: a. We want to protect the efforts of the attorney/party who are working hard, only permitting intrusion by the other side when there is actual need and the possibility of real prejudice (even then, limiting it to non-opinion materials). b. We dont want to make attorneys think twice before writing down what they are thinking, thereby limiting their effectiveness as advocates. c. We dont want to permit mooching. Permitting this would remove the incentives for real work, and would permit idiots who were good moochers to become lawyers something we dont want. 4. Previous Statements a. A party or other person may request his own previous statement about the action or its subject order. A previous statement is: 47

i. A written statement that is signed or otherwise recorded or a transcription that recites substantially what was said verbatim

Ensuring Compliance & Controlling Abuse

1. Various types/levels of sanctions a. Under Rule 37 i. Nice Monetary and Compulsion under 37(a) 1. For limited failure to comply with a discovery request 2. For failure to respond accurately or fully ii. Mean Draconian/dismissal under 37(b) 1. A court may stay proceedings when * is a jerk 2. Failure to comply with court order can trigger these sanctions 3. Complete failure to comply with a discovery request a. Failure to attend depositions b. Failure to respond to numerous requests b. Under Rule 26 i. Simply monetary sanctions 2. Purpose of Various types of sanctions a. The easier it is to get harsh penalties for minor errors, the less likely it is that courts will work together and the more likely it is that they will seek court interference b. The goal is ensuring that cases are decided on the merits, which could be hindered by: i. Abuse of the discovery system by the parties ii. Bias of the courts themselves which is why sanctions are no longer automatic they used to be abused by courts in certain types of cases to harm plaintiffs (esp Title VII)

Rule 37
1. Failure to make mandatory disclosures or failure to respond to discovery requests a. A party can seek and order to compel response from the court: i. First, the party must meet and confer and try to solve the problem outside of court ii. If the other party fails to comply, the court may be asked to compel iii. If the order to compel is granted, the motioning party may receive costs iv. If the order is granted and not complied with, draconian punishments begin b. Incomplete responses are considered failures to respond and therefore also create a basis for compulsion 2. Failure to participate in discovery a. Rule 37(b) draconian sanctions apply. The court may dismiss the suit. Courts prefer not to enter a default judgment unless a party is willfully stalling discovery. 3. Failure to show up to a deposition. a. Can result in dismissal of a suit, bar usage of the deposee as a witness, holding deposee in contempt. Failure to show up to a deposition may be unpunished if failure was substantially justified 4. Failure to Disclose a witness. a. Rule 36(c) The party will lose its ability to use the witness at trial. This is also true if the witness comes on board after disclosure time and the party doesnt supplement

Rule 26
1. All parties sign discovery requests and responses to certify that to the best of their knowledge formed after a reasonable inquiry: 48

a. Disclosures are complete and correct at the time they are made; b. Requests, responses and objections are: consistent with the rules; not intended to harass, cause delay, or increase the cost of litigation; not unreasonable/too expensive

SUMMARY JUDGMENT
Analyzing a Motion for Summary Judgment
1. Has the moving party met its burden? a. A moving party without the burden of proof at trial can satisfy its SJ burden by showing that the record lacks evidence supporting *s claim b. A defendant can show affirmative evidence that establishes that they are not at fault c. A plaintiff can show affirmative evidence sufficient to win at trial, and show that the ( has failed to rebut this evidence 2. Has the nonmoving party responded? a. Nonmoving party has the burden of showing that there is a factual dispute by bringing forward evidence that rebuts the moving partys evidence 3. Court examines the evidence to decide if a material issue of fact exists 4. When assessing the motion, all justifiable inferences are construed in the favor of the non-moving party. If these inferences do not create any chance of a reasonable jury finding for the non-moving party, summary judgment is appropriate.

The Summary Judgment Standard

1. Rule 56 a. A party moving for summary judgment has the initial burden of showing that there is no genuine issue of material fact. b. Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidence is shown. 2. Evidence Used in Summary Judgment Motions a. To support summary judgment: i. It is generally assumed that you need signed/sworn affidavits, transcripts of depositions, responses to interrogatories, admissions, etc. ii. Celotex suggests that unsworn statements taken from intended trial witnesses will be sufficient b. To oppose summary judgment i. It is necessary to introduce new evidence. You cannot rely on evidence that is already in the pleadings.

Adickes Heavy Burden

1. See Adickes v. Kress (#24) a. Note: 49

2.

3.

4.

5.

i. All of *s allegations were based on hearsay, and none had the support of admissible testimony. The court still required that the ( provide direct evidence that contradicted the circumstantial inferences the * was attempting to show. ii. Failure to include such direct evidence (such as affadavits by the police saying that they were not present) caused the motion for SJ to fail. What the Court Required of the Moving Party a. When the other party is supporting its case with circumstantial evidence, the moving party has to come forward with direct evidence that directly contradicts an essential element on which the nonmoving party bears the essential burden of proof. b. This is a higher burden of proof than at trial, where ( would have no burden of proof whatsoever. What the Court Required of the Non-moving Party a. Nothing until the moving party had met its burden. If the moving party met its burden by showing direct evidence that contradicted the circumstantial inferences of the nonmoving party, the nonmoving party would be required to submit actual admissible affidavits that created a genuine issue of material fact. Policy a. If the court required direct evidence of a conspiracy for recovery under equal protection laws, it would be impossible for *s to recover. Therefore, *s must be able to recover based on circumstantial evidence, which when presented, will create a material issue of fact for a jury b. Suspicions of summary judgment because it removes decision from a jury and may prematurely end a case. c. Desire to protect *s work protect until trial (not making them reveal it all) Criticism a. Adickes lost favor in the 1970s when juries began handing out massive awards to *s in various cases, such as toxic torts. Conservatives began feeling that juries were unpredictable and that *s were using this to get large settlements.

Celotex and the Modern Standard

1. See Celotex (#26) 2. New Rule aligns the burdens with the parties actual burdens: a. The moving party who does not bear the burden of proof at trial can satisfy its initial burden of production simply by showing that there is an absence of evidence that would allow a reasonable jury to find for the *. i. ( doesnt need to use direct evidence to prove that they didnt do something, they can simply say that the * cant prove that ( did something. b. By Contrast if the moving party bears the burden of proof at trial, the moving party must come forward with evidence with their summary judgment motion that shows that their evidence, if not rebutted, warrants a finding in their favor. 3. Disagreement between Rehnquist and Brennan a. Rehnquist (who is widely followed today) believed that the ( satisfied its original burden i. He emphasizes making summary judgment more easily available for (s. He expresses a belief that innocent (s are being attacked by mean *s b. Brennan believed that ( never satisfied its original burden i. Brennan believed that a ( should be required to provide affirmative evidence that addressed any evidence brought forth by the *, showing why the *s evidence was insufficient to overcome summary judgment. 50

ii. Brennan was concerned with allowing too many (s too file summary judgment for the sole purpose of delay, harassment and cost escalation. He was also concerned that this would give (s a means of finding out all of the evidence that * had. 4. Distinguishing Adickes/Celotex a. ( produces a lot of asbestos. * has proof that decedent was exposed to asbestos, but doesnt have proof of the manufacturer i. Adickes No SJ for the ( because they would struggle to show that the asbestos was conclusively not theirs, even if * couldnt prove it was (s ii. Celotex SJ for ( because * couldnt proof that ( supplied the asbestos

Burden on the Party Responding to a Motion for S.J.

1. Burden on the non-moving party in Bias a. Once a moving party has come forward with specific evidence/witnesses, the nonmoving party must bring forward affirmative evidence that i. Impeaches the credibility of the witnesses used by the defendants, or ii. Directly contradicts the evidence brought forward by the (. Where the ( has provided specific evidence relating to specific circumstances, the *s directly contradictory evidence must also relate to those specific circumstances. b. Just because the (s witnesses could be disbelieved by the jury isnt sufficient to establish a genuine issue of material fact, it is necessary to show affirmative evidence impeaching the witnesses. 2. Bias v. Advantage Intl (#26) a. Facts: *s son died of a drug overdose. *s sued ( for failing to obtain a life insurance policy on the son. ( claimed that the son was a drug user and therefore couldnt obtain a policy anyway. ( brought forward two of the sons teammates who claimed that the son had been a drug user. * and sons coach claimed that the son didnt use drugs. b. Decision: Summary judgment for ( was appropriate because *s witnesses did not directly contradict (s testimony about the sons behavior at parties. The * cannot create a material issue of fact by offering general testimony that opposes (s more specific testimony. Had the * provided directly contradictory testimony, or impeached the (s witnesses, they would have survived summary judgment.

FACT FINDING
Trial by Jury
1. Why use Juries? a. (Oldest Defense) Juries moderate laws that we might consider unjust because they have the ability to resist the law and apply unjust laws in a broad/flexible manner b. Juries bring real world wide experience that judges may lack c. Juries counteract bias by moderating outliers. Requirement of a majority/unanimity can moderate bias and aid in greater deliberation 2. Why not use Juries? a. Juries may decide based upon grudges and prejudice b. Juries may decide based on irrelevant factors (lawyers smile, etc) c. Juries are capricious, irrational, and untrustworthy 51

i. Kelvin study found this not to be true. Found that Judges were 78% in line with jury decisions and juries only slightly favored *s relative to judges.

Right to a Trial by Jury

1. The Seventh Amendment a. Purpose: i. Grants an express right of trial by jury as that right existed in 1791. Was intended to uphold the most important part of the government amid fears following ratification of a constitution that did not expressly include such a right. b. Application i. Applies only to the federal government. Does not apply to states ii. Does not create a uniform right to a trial by jury in federal courts. 1. Only creates such a right where the right existed in 1791, and where the right isnt waived. iii. No fact tried by a jury can be re-examined except in the ways approved by common law. Both judgments and reasoning of rational juries are beyond questioning. iv. Jury decisions may be taken away in certain circumstances, allegedly available at common law 1. Summary Judgments, Directed Verdicts, JNOV, Order for New Trial Right to Jury Trial At Common Law 1. Claims brought in Law were subject to jury trial a. Replevin: Claim for return of property wrongly taken b. Ejectment: Forceful removal of a person from a piece of land c. Actions for Attorneys malpractice d. Money Damages 2. Claims brought in equity were not subject to trial by jury a. Actions brought under trust for breach of fiduciary duty b. Actions to vacate an arbitration award c. Specific Relief claims such as: Specific performance; recission or reformation of a contract, injunctions. Determining if a right to jury trial exists 1. Generally understood as a two part test a. First, it is necessary to compare the statutory action to those that existed in 1791 prior to the merger of the courts of law and equity. This is done by looking for an analogous cause of action that existed in 1791 and was brought either at law or in equity. b. Then, it is necessary to examine the remedy sought and determine whether it is legal or equitable in nature. i. The relief should not be examined on the basis of its relationship to the relief granted by the analogous cause of action from 1791, but instead should be examined on the basis of its relationship to the general remedies available in the law/equity courts in 1791. 2. Application of the Rule a. Local 391 v. Terry (#27) i. Facts 1. *s sued their union, (, for violation of its duty of fair representation. *s sought damages. * wanted a jury trial, ( argued against. ii. Decision 52

1. Ct. found that the suit was most like the equitable suit for breach of fiduciary duty because both were against persons who independently exercised power on behalf of another. The court decided that breach of contract (legal) was also an issue, and therefore the cause of action included within it legal/equitable issues. The court thereafter considered the remedy sought (damages) and found that the remedy was legal in nature. Therefore, *s were given a trial by jury. b. General Application i. If an action clearly aligns with common law action that could only be heard in an equitable court or could only be heard in a legal court, it falls in with those categories and remedies need not be examined. ii. If the action is novel (created by statute), then look to the remedy, and determine if it is a legal or equitable remedy. iii. The determination of a right to jury trial is based on federal, not state law Amoco (#28) c. Opinions in Local 391 v Terry
Test Part 1 Majority When the cause of action is unquestionably like an equitable cause of action no jury. And vice versa Brennan Concur No Need to Examine analogous causes of action. The court will never agree as to an analogy Stevens Concur Agrees with majority but believes that the goals, not the form, of the action should be analogized Dissent Believes that because the cause of action was analogous to an equitable cause of action, the inquiry should have stopped here with no jury. Agrees with majority

Part 2

If there isnt a clearly analogous cause of action, it is necessary to examine the remedy sought

Only examine the remedy sought, youll never get an answer from step one.

Agrees with majority

Combining Legal/Equitable Claims 1. Historically, claims had to be brought in their respective courts and a legal claim could not be joined with an equitable claim. 2. Under Beacon v. Westman, where *s brought claims in law and equity (and (s counterclaimed with legal claims), the court determined that: a. A jury trial is required all claims that can be heard by a jury at common law. After the jury has made its findings, the judge is bound by the jurys determination of the factual issues and must decide all equitable claims on that basis. 3. In Amoco the court found that a *s attempt to defeat a right to jury trial (accorded under a cross complaint) by removing their prayer for damages failed to defeat the defendants right to jury trial based on their cross complaint (seeking damages).

Judgment as a Matter of Law

Use of JMOL
1. Purpose of JNOV and Directed Verdicts a. Prevention of irrational judgments by juries b. Speed up the litigation (policy of efficiency) c. Prevent unnecessary retrials (only with JNOV) 53

i. If a direct verdict ends the trial before the trial is completed, and an appeals court subsequently overturns the directed verdict, the case will have to be retried ii. JNOV prevents the need to redo the trial because an appeals court overturning a JNOV would simply have to reinstate the juries verdict. d. Purpose of modern standards: Broaden availability of JMOL by considering all evidence and requiring more than a scintilla of evidence to go to a jury. 2. Timing for JMOL a. * presents his case i. ( can motion for a directed verdict during the presentation, or after the conclusion of, the *s case, if the ( feels that the * failed to establish a necessary fact/issue b. ( presents his case i. * can motion for a directed verdict during the presentation, or after the conclusion of, the (s case, if the * feels that the ( failed to establish a necessary fact/issue c. After the verdict i. Either party can motion for JNOV within days of the verdict. This motion is filed when a party believes that no rational jury could have reached this verdict. ii. Note that in order to file a motion for JNOV, the motioning party must have motioned for a directed verdict at some time during the trial (Rule 50) d. Denial of a Directed Verdict i. If a judge denies a motion for a directed verdict, he reserves the right to give a JNOV if he feels that the jury came to an irrational conclusion 3. Constitutionality of JMOL a. Seventh Amendments Reexamination Clause i. Bars reexamination of a jurys findings. ii. The S.Ct. found that JMOL is constitutional because there was an analogue to this at the time the 7th amendment was adopted. iii. The S.Ct. requires two conditions in order for JMOL to be constitutional 1. There must have been a motion for a directed verdict 2. JNOV must be confined to the arguments made in the DV motion b. What the Seventh Amendment Requires i. Generally 1. The Seventh Amendment only protects the final decision on the merits 2. Finding that a party is likely to succeed on the merits is different than finding that they have succeeded on the merits ii. Strong View (minority use) 1. Requires a jury finding for all issues of fact. These courts do however retain the right to avoid jury trial for emergencies (like when a preliminary injunction requires a quick decision) iii. Broad View (majority) 1. Various types of things (like class certifications) require getting into factual issues. Because these arent binding as the final result of the case, they need not be decided by a jury.

Standards for JMOL

1. Old Standards, still used in some states a. *s only rule i. The court ruling on JMOL will only examine the evidence provided by the *. If the *s evidence is sufficient for a * to find for the *, even if ( has presented powerful evidence, the trial will go to the jury 54

b. Scintilla Approach i. A party attempting to overcome JMOL must only present a scintilla of evidence to get to the jury. 2. Modern Federal Standard a. Essentially the Same as the standard for Summary Judgment b. When the courts assess the evidence from trial in deciding JMOL, they ask if all of the evidence on the record is sufficient for a reasonable jury to find for the nonmoving party. The court draws all favorable inferences for the nonmoving party in making this decision. In order for the trial to go to jury, there must be a substantial conflict in evidence. c. Substantial Conflicts in evidence include: i. Cases based on credibility of a witness (go to jury) ii. Cases based on how strong inferences are based on circumstantial evidence (go to a jury) 1. Exceptions: When the moving party has presented direct, specific, affirmative evidence that contradicts elements of the nonmoving partys case on which the nonmoving party bears the burden of proof, the nonmoving party must present specific evidence that contradicts the evidence of the moving party, or calls into question the moving partys evidences reliability in order to overcome JMOL. d. Witnesses & Inferences (The Exception noted above) i. When a party bearing the burden of creating a substantial conflict in evidence (or showing defendants liability) provides a witness who states facts that give equal support to each of two inconsistent references, one of which creates a conflict (or liability) & the other which doesnt, this isnt sufficient to create a substantial conflict in evidence. see Reid v. RR (#29) 3. Penn RR v. Chamberlain (#30) a. Facts: i. * sued for death of decedent claiming that (s agents were negligent. * brought forward one witness who, willing sitting a distance from the accident, saw the cars moving in a certain manner and heard sounds which led him to infer that (s agents crashed into decedent. ( brought forward witnesses who were on the car that allegedly hit decedent, they said no accident occurred. b. Decision: i. JMOL was appropriate. There was no actual conflict in the testimony. ( provided specific evidence that directly contradicted *s general circumstantial evidence. Furthermore, *s witness provides evidence that could create two inferences, only one of which would contradict (s witness. When two equally possible inferences exist, it is not permissible to use one of them to contradict specific evidence provided by the other side. c. Note: i. Court probably would have permitted a directed verdict without (s witnesses because *s witness did not provide evidence that made it more likely than not that (s agents were negligent. ii. A good lawyer probably could have overcome the inference issue by bringing in evidence of the decedents experience, etc. After that it would still be necessary to contradict the witnesses evidence directly, or impeach them. A good lawyer could have impeached them on the basis of their employment and involvement in the accident. 55

New Trial
1. A new trial is proper when: a. Procedural Errors taint the Jurys Judgment i. Impermissible communications between jurors and others, etc b. The jurys verdict, while within the range of reason, is highly suspect i. Even where the evidence was strong enough to survive a JMOL motion, the judge can overturn the verdict where the verdict was against the weight of evidence

Standard for Granting a New Trial

1. Extent of the deference of the appellate court will expand the power of the trial judge when deciding whether or not to grant a motion for a new trial. 2. Majority Rule for Awarding a New Trial a. Appellate Review: i. Appellate courts should give great deference to trial judges and not step in and overrule their judgment, even when a new trial was granted on the basis of the credibility of the verdict, except in very exceptional circumstances. So long as there is a basis in reason for the trial judges conclusion, the decision should stand. b. Trial Judge i. A trial judge should not set the jury verdict aside as contrary ot the weight of evidence or order a new trial simply because he would have come to a different conclusion if he were the trier of the facts. 1. The judge should only set aside the verdict when there is a miscarriage of justice because the verdict is contrary to the weight of evidence. 2. A jurys decision need not be so unreasonable that no reasonable jury could have reached it, but it must be beyond the realm of the probable result of the evidence presented. 3. Minority Rule for Awarding a New Trial a. Appellate Review i. Appellate courts should give deference to trial judges, but only in so far as that deference is governed by understandable rules. One such rule is that in simple cases, the trial court cannot override the jurys credibility determination. b. Trial Judge i. Same Rule as applied in the majority plus ii. Where a trial is based on a simple subject that does not require the use of expert witnesses or information outside the ken of the average jury member, the court has no discretion to order a new trial. Greater discretion to order a new trial based on credibility judgments does exist in complex cases with expert witnesses. 4. Lind v. Schenley (#31) a. Facts i. Contract case where judge found the facts and juries decision for the * to be ridiculous, and therefore granted a motion for a new trial. b. Decision i. Court used minority approach, reversing the judges decision because this was a simple legal issue, and therefore should not have been taken out of the hands of the jury for any reason other than one that was procedural

56

No Jury can Decide for P (0% Chance)

New trial if verdict for P

50% chance of verdict for P

New Trial if Verdict for D

No reasonable factfinder could find for D

Generally, where the verdict lies a great distance away from that which would be expected (e.g. only a 25% chance jury would decide the way it did), a new trial may be proper.

Filing Motions for JNOV and New Trial Rule 50

1. Both must be filed within 10 days of the end of the trial 2. Typically both are filed at the same time a. If the court grants a motion for JNOV, it must also conditionally rule on any motion for a new trial by determining whether a new trial should be granted if an appellate court reverses the grant of JNOV b. Why conditional grant? Efficiency saves time and ensures that party doesnt have to return to move for a new trial if the JNOV is reversed.

APPEALS
Ability to Appeal
1. Appeals may follow from final judgments and a very few interlocutory judgments 2. A party may appeal if a. They have received an adverse judgment. A party who did not receive an adverse judgment is unable to appeal a reasoning used to arrive at the lower courts decisions. Reasoning is not appealable. i. Aetna v. Cunningham: * sued for fraud and breach seeking compensatory damages. Ct found for * on breach but not fraud. * could not appeal the fraud judgment because he received the full relief sought (damages). b. They have preserved their objections by raising them at trial. 3. Waiver/Failure to Preserve Objections a. Failure to object at trial waives the ability to appeal that issue. To preserve the objection, the party must renew and support the objections throughout the trial by objections to evidence and by requesting rulings and instructions for the Jury that preserves his objection that point.

Final Judgments
1. Purpose of final judgment requirement a. To protect and limit the dockets of appellate courts. Many times, a ( who has been found liable will settle instead of go through a lengthy damages proceeding. If they could appeal on a finding of liability, this would increase appeals and limit settlements i. The cost of this: Lots of unreviewable trial court discretion until final judgment 2. Rule 54(b) 57

a. When an action presents more than one claim for relief, or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court determines there is no reason for just delay i. *intended to permit appeals on judgments for claims that could have been brought as separate causes of action. ii. *Note, requesting different forms of relief does not establish multiple claims. 3. Final Judgment Appeals: 28 USC 1291 a. 1291: Courts of appeals have appellate jurisdiction over final judgments of lower courts i. This is assumed to authorize appeal only when there has been a final determination of the whole claim ii. A Whole Claim Includes: 1. First: A showing that the pleader is entitled to relief a. They have a legal right b. Facts show that the legal right was violated, and c. They have a cause of action that entitles them to relief 2. Second: The pleader must request relief 4. Liberty Mutual v. Wetzel (#31) a. Facts: i. * claimed sex discrimination and sought various remedies from injunctive relief to damages. District court found ( liable but withheld an injunction order while ( appealed. b. Decision: i. (s were not able to appeal when they did. Rule 54 doesnt apply because there was only one claim. No injunction was actually granted or withheld (and even if it was withheld, only * could have appealed from that as an adverse ruling). Because * has not received rulings on any of the relief that they seek, there has not been a final judgment, as relief is a part of the whole claim that must be rendered before it may be considered a final judgment.

Interlocutory Appeals
1. 28 USC 1292 a. Congress has permitted interlocutory judgments in specific situations i. In cases granting/modifying/refusing to grant injunctions ii. In cases where the district judge certifies an order for an interlocutory appeal because he believes the issue is one regarding which there is a substantial question/division. The court of appeals can then take the appeal in its discretion. The appeal must be filed within 10 days of the certification by the lower court. 2. Liberty Mutual v Wetzel a. The S.Ct. refused to apply 28 USC 1292, even though it appeared possible that the lower court had intended to certify the decision of (s liability for this purpose. Court refused to do so because the procedural requirements were not met (10 days filing time), and the court found that failure to satisfy procedural requirements stripped an appellate court of jurisdiction to hear the appeal. Furthermore, it wasnt known if the appellate court would have even accepted the appeal if it was made under 28 USC 1292.

PRECLUSION
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Now that we have made it easier for plaintiffs to get into court, we have developed mechanisms of providing defendants with a greater amount of peace at the close of the lawsuit by limiting their potential for future liability based on the same transactions.

Claim Preclusion
1. A final judgment on the merits prevents relitigation of a. The same claim b. Brought by the same parties (or their privies) 2. What Claim Preclusion Law is applied? a. A federal court/state court looking to determine the preclusive effect of a prior state court judgment must give the state court judgment the same effect that the state court would give b. A state court looking to determine the preclusive effect of a prior federal court judgment must apply federal claim preclusion law if the case was brought under Federal Question jurisdiction. If the case was brought under Diversity jurisdiction, it can apply its own claim preclusion law.

Same Claim Requirement

1. Reminders a. Claims not available (or known) at the time of the first suit are never precluded from being brought at a later date b. Claims arising from later acts are never precluded from being brought at a later date Efficiency Considerations 1. Common Law/Minority View a. Only precludes claims that are based on a common sets of facts, defined as those facts necessary to sustain the cause of action not as those facts that could be conveniently litigated in one lawsuit. The facts must all be common to both causes of action. 2. 2nd Restatement/Majority View a. Same Claims are: Rights to remedies that arise out of the same transaction or series of transactions b. One suit precludes a second where the parties and the cause of action are identical c. Causes of action are identical where the evidence necessary to sustain a second verdict would sustain the first where the causes of action are based upon a common core of operative facts i. Courts should look to common overlapping facts ii. Courts should look to efficiency and ability (fair opportunity) of bringing those facts in the same trial 3. Frier v. Vandalia (#32) a. Facts: * had four cars towed over a one year period. He didnt want to pay to get them back so he filed suit for replevin. He lost, and then federal claim invoking the due process clause. b. Decision: i. Easterbrook played hard and fast with Illinois law and found claim preclusion barred the second claim. * could have joined the second claim to his first one, and failed to do so. The actions arose from the same transactions and facts. Although there were some different issues of proof, both claims also included proving similar issues of fact. ii. Note that Illinois doesnt use this form of claim preclusion (2nd restatement) but uses the common law form (under which there was no claim preclusion because 59

each claim required proof of different facts). Easterbrook latched onto a bit of ambiguity in Ill courts and tried to push the law. 4. Policy for 2nd Restatements Position on Claim Preclusion a. Efficiency i. It is more efficient to try questions that share a common core of operative facts in one proceeding. It isnt likely that subsequent lawsuits would have different outcomes, so we should take measures to enhance efficiency b. Fairness i. Save the ( from having to incur the costs of two lawsuits.

Consistency Considerations Claim Preclusion Against Defendants 1. Rule 13 a. Compulsory counterclaims not included in the pleadings are waived. 2. Claim Preclusion a. Common Law Compulsory Counterclaims and defenses to prior actions are precluded by Res Judicata when not brought in the original suit. i. Common law compulsory counterclaims are: available to the defense in the first action, arise from the same facts as the original cause of action, nullify the rights claimed by the plaintiff in the first action. b. Exception: i. Where a claim constitutes a separate ground for recovery as well as a defense to the prior suit, that action constitutes a different cause of action and res judicata does not preclude bringing that suit. 1. However, when the second suit stands to nullify rights established by the prior action, both precedent and policy require that it be barred by res judicata 3. Martino v McDonalds Systems (#33) a. Facts: * breached an agreement with ( and ( sued *. The parties entered a consent judgment. * then tried to sue ( for violation of anti-trust laws in actions leading up to the prior suit. b. Decision: Claim preclusion applies. Because no pleadings were filed, R 13 doesnt apply. Although the exception to claim preclusion applies here, because *s suit is not only a defense but also a separate cause of action, that isnt sufficient to avoid claim preclusion. In this case, * is essentially challenging a judgment that ( has relied upon. It is the purpose of claim preclusion to bar such challenges. 4. Policy reflected in Martino a. Consistency of Judgments: The courts want one adjudication on the merit, not only for efficiency but to ensure the legitimacy of the judiciary, etc. i. Claim preclusion is about the final effect of the judgment and reliance on the rights established if the parties had settled without establishing rights, this suit may have been available for reassertion.

Same Parties Requirement

1. Overview a. Basis 60

i. Due process protects the fundamental right to a day in court. As a result, courts generally prevent preclusion from binding persons not involved in an earlier suit. b. Who fits the same parties requirement? i. Persons who were parties to the original action ii. Persons who are in privity with the parties to the original action c. Privity Relationships in Claim Preclusion i. Substantive Legal Relationships: 1. E.g. Successors in interest to property 2. Policy: Reduces uncertainty about property rights and encourages sale/purchase of property because we dont worry about rights, etc ii. Parties Appointed by Legal Process as Representatives 1. E.g. A member of a class is in privity with the class representative in a class action suit iii. Parties who have entered into formal/informal arrangements for Representation 1. E.g. contractual representations, situations where a party out of court is controlling the party in court for their own benefit (someone using the party in court as their agent, representing their interests) d. Determining the existence of privity is always a balance between efficiency/consistency and liberty/due process 2. Rules for Privity (used in Searle) a. Majority i. Privity exists between persons representing the same legal right, including those with mutual or successive relationship to rights in property ii. Courts will not find that a previous party was an agent for the subsequent party unless it is explicitly stated that an agency relationship exists. Even where a party is an agent, it is necessary that the party acted to represent interests held jointly (and that the parties didnt hold independent interests) b. Dissent i. The court can imply agency exists, even when it is not explicitly recognized, where the second party had notice of the first suit and an interest that was represented in the same suit. ii. But See Martin v Wilks 1. Supreme Ct. says that someone cannot be precluded even when they had notice, an opportunity to intervene, and a later suit would alter rights established in the first suit. 3. Searle Bros v. Searle (#34) a. Facts: ( sued her husband for a divorce. ( received a piece of property that the husband claimed was 50% owned by *s, a partnership of his sons. The *s testified at the divorce hearings, but were not parties. *s are now suing for their 50% interest in the property. b. Decision: No preclusion. The *s were not legally represented in the first suit, the husband was representing himself and his interest, which is held independently from the *s interest. Although *s had an opportunity to intervene in the first suit, they are not bound by a failure to do so.

Final Judgment on the Merits

1. Determining if a Final Judgment on the Merits has occurred a. Rule 41(b)

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i. Unless a dismissal order states otherwise, any dismissal except one for lack of jurisdiction, improper venue, or failure to join a party operates as an adjudication on the merits. Note personal jurisdiction may still be precluded by issue preclusion b. Odd Federal Judgments on the Merits i. Failure to state sufficient facts ii. Dismissal for failure to state a claim iii. Dismissal for being an asshole during discovery process, etc 1. Policy: Even though these are not final judgments, if they were not preclusive, dismissal for being an asshole would lose its bite, because the action could simply be refilled in a different court. c. States may apply more flexible rules i. Some states find that dismissal for failure to state a claim only precludes refilling the same complaint, but permit refilling an amended complaint 2. Gargallo v. Merrill Lynch (#34) a. Facts: * was sued by ( for debt recovery. * counterclaimed for SEC violations, a counterclaim that the state court should not have heard. *s counterclaim was dismissed with prejudice. * then filed suit in a federal court. b. Decision: No claim preclusion. Because the claims are identical, issue preclusion would typically apply. However, the lower court did not have jurisdiction. If Ohio allowed preclusion where a prior court didnt have jurisdiction, this claim would be precluded (because it is necessary to apply state rules). However, Ohio does not do so, therefore, there cannot be preclusion of the claim.

ISSUE PRECLUSION
Application
1. Issue Preclusion v. Claim Preclusion a. Issue preclusion deals with issues, not claims b. Issue preclusion is an affirmative defense and can be asserted through a motion for SJ c. Issue preclusion may provide a means of precluding relitigation of a specific issue when claim preclusion is not available. 2. Test for Issue Preclusion a. Same Issue b. Issue was actually litigated c. Issue was actually determined by a final judgment d. The precluded party had a full and fair opportunity to litigate the issue e. The determination was essential to the judgment f. The party bound by preclusion must have been a party or privie of the first suit

Same Issue
1. The issue must not only be the same, but it must be the same issue within the same context 2. Where the Burdens of proof are different, issue preclusion may not apply a. A civil ruling will not provide issue preclusion in a criminal trial b. Alternatively, a criminal trial where ( is found guilty beyond a reasonable doubt will preclude the issue of (s guilt in a civil trial where the burden of proof is lower 62

3. Where context provides different standards for determining the same issue, issue preclusion may not apply a. If we decide that * is a citizen of state A for purposes of in state tuition in suit 1, that will not preclude the issue of *s citizenship of State A for purposes of federal diversity in suit 2. This is because different standards are used to determine the two types of citizenship.

Actually Litigated and Determined

1. Determining if an issue was actually litigated a. In order to find that an issue was actually litigated, it is necessary to show that the issue was one that must have been decided in order for the decision of the lower court to have been reached. i. E.g. If the jurys general verdict necessarily required a finding of negligence, then the issue of negligence has been litigated and determined ii. This may also be done when the jury issues a special verdict, indicating the facts that they determined and based their verdict upon. b. Where a judgment may have been based upon either or any of two or more distinct facts, a party desiring to show that the judgment is precluding of relitigation of the particular fact in a later suit must show that the jury decided upon that specific fact, or else the question will be open to relitigation. i. Preclusion by a judgment is only presumptively conclusive when it appears that the judgment could not have been rendered without deciding the particular matter brought in question. 2. Illinois Central RR v Parks (#35) a. Facts: i. * and his wife were hurt when * drove into (s train. In suit 1, * sued for consortium damages and his wife sued for injury damages. Jury found for the wife but not for *. * then sued (suit 2) for his own damages. ( sought to have issue preclusion on the issue of *s contributory negligence. b. Decision: i. No issue preclusion. ( is precluded from arguing against their own negligence, because such a finding was necessary to find for the wife. However, the jury could have found that * was contributorily negligent, or simply that he didnt suffer any loss of consortium. Because there were two equally possible bases for the jurys verdict, * cannot be precluded from relitigating one of those bases.

Essential to the Judgment

Alternative Bases For the Judgment 1. If a judge (or jury on special verdict) returns two alternative bases for the judgment, neither issue is precluded in subsequent trials. 2. Effect of an Appeal on Alternative Bases for Judgment a. If Both Alternatives are upheld i. Both alternatives are precluded from further litigation b. If one Alternative is upheld and the other reversed i. Only the alternative that is upheld is precluded c. If one Alternative is upheld and the other not considered i. Only the alternative that is upheld is precluded 3. Policy a. Reflects the fact that decisions based on alternative reasons may not be subject to as much vigorous determination by the finder of fact. 63

b. We dont want prior decisions to be preclusive unless we are satisfied that they were rightly made. i. If there is a chance of less vigorous determination, we want to require a review of those issues before we consider them preclusive and determinative c. Accuracy and finality Determinations not Essential to the Judgment 1. In order for a decision to be essential to the judgment, and therefore precluded, it must be a butfor cause of the earlier final verdict. a. If a RR was found negligent and a driver was found contributorily negligent, the RR would not be liable. The issue of contributory negligence would be preclusive, because it was the but-for cause of no liability. The issue of RRs negligence, however, would not be preclusive, because the RR would have been liable regardless of this finding. b. If a ( was found to have breached a contract, but not to be liable because the * breached first, the ( could relitigate the issue of its own breach in later suits.

Same Parties
1. Modern Non-Mutual Issue Preclusion a. Defensive Non-Mutual Issue Preclusion i. A * may be precluded from asserting the claim that the * had previously litigated and lost against a different ( 1. * must have actually had a day in court in the first proceeding 2. Differences in procedural opportunities in the first proceeding that could cause prejudice to the party being bound by the prior ruling is a basis for not permitting defensive issue preclusion b. Offensive Non-Mutual Issue Preclusion i. A * may preclude a ( from relitigating issues that the ( previously litigated and lost against a different *. 1. However, a trial judge should not allow the use of offensive issue preclusion where: a. The * could have easily joined in the earlier action b. Where preclusion would be unfair to the ( because: i. The ( did not defend himself sufficiently in the previous trial ii. The judgment relied on for preclusion is inconsistent with other judgments that went in favor of ( iii. The second action provides procedural opportunities for the ( that were unavailable in the first suit. 2. Limitations on Non-Mutual Preclusion a. Non-Mutual preclusion can only be used against parties who litigated the issue previously, or where in privity with parties who litigated the issue previously (due process) b. Generally, a * who could have easily joined himself in the first suit cannot use issue preclusion against a ( to the first suit i. If forcing a * to add its claims to the prior suit would have been unefficient/unfair (because it would have lengthened the inquiry, dissimilar operative facts, the first suit was largely about different issues, etc) courts will bend this rule ii. The policy is avoiding free-riding by plaintiffs, increased litigation, burdens on (s and the courts. This policy may be overridden by fairness considerations for the * 64

c. Generally, if procedural opportunities exist in the second suit that did not exist in the first suit, issue preclusion will not be available unless the procedural opportunities would not make a difference. d. If a ( did not have sufficient incentive to vigorously litigate the issue in the first suit, issue preclusion will not be available. i. Where damages in the first suit were small and ( shouldnt have foreseen numerous subsequent suits, this weighs against applying preclusion ii. Where ( shouldnt have reasonably seen further suits, this also weighs against preclusion.

3. Parklane Hoseiry Co. v. Shore (#36) a. Facts: i. * sued ( for SEC violations. The SEC sued ( and won before *s suit went to trial. * sought to use issue preclusion for those issues present in both the SEC suit and the *s suit. b. Decision: i. Issue preclusion permitted. The * couldnt have joined the earlier suit, and the ( had notice of the suit by * (as it was pending) and so ( had reason to vigorously litigate the first suit. (s had full and fair opportunity to litigate this issue.

Multiple Parties and the Same Cause of Action

1. Problems arising from Issue Preclusion a. Because (s cannot use issue preclusion against *s not a party to the prior suits, they cannot use prior wins against later *s. However, based on the general rules of offensive issue preclusion, *s can use (s prior losses as preclusive against the (. i. This creates a disparity in mass litigation that gives (s a good reason to settle (thereby cutting off preclusive effect of a judgment for *) but removes the incentive of a * to settle (because the *s lawyer may represent the wave of *s who come after a * win). 2. Rules Applied a. If the circumstances are such that the integrity of an earlier determination is undermined, or that the result would likely be different in a second trial, it would be unjust to deny the litigant another chance i. Where the verdict was the result of a jury compromise, the losing party should not be precluded by the judgment. ii. If a prior determination was manifestly erroneous, the judgment should not be given preclusive effect iii. The existence of newly discovered crucial evidence not available at the firs trial is a basis for denying preclusion when the evidence could have a significant effect on the outcome iv. When the judgment sought to be used for preclusion is inconsistent with one or more previous judgments, issue preclusion may be improper 1. If the court is satisfied that the majority of juries would come out with the same verdict (based on sample size, percent that ruled one way, jurisdictional rules), they may allow preclusion despite varying verdicts. 3. Balancing Efficiency and Fairness 65

a. Policy being applied is a balance of efficiency and fairness b. Efficiency is foremost. Therefore, a verdict against the ( on an issue may be preclusive in subsequent suits unless it is shown that one of the rules above applies. c. Fairness kicks in when one of the above rules shows that there is reason to believe accuracy of the verdicts is an issue. At this time, preclusion may be barred. 4. State Farm v. Century Home Components (#37) a. Facts: i. ( sued by numerous *s for a fire. Suit 1: Jury for (, remanded, Judge for *. Suit 2: Jury for (. Suit 3: Jury for *. New *s seek to preclude issue of (s liability. b. Decision: i. No preclusion. Because the verdicts were inconsistent, and there is no reason to believe that the verdicts were derived by looking at different information/considering different questions, it can only be assumed that the verdicts are incompatible. Therefore, preclusion is unfair.

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Table of Contents
BASIC CONCEPTS PENNOYER V NEFF (#1) MODERN FRAMEWORK FOR PERSONAL JURISDICTION DEVELOPMENT OF MINIMUM CONTACTS & PURPOSEFUL AVAILMENT ABSORBING IN REM JURISDICTION MODERN TESTS OF SPECIFIC JURISDICTION FAIR PLAY AND SUBSTANTIAL JUSTICE TEST JURISDICTION AND AIMING CHART OF TESTS FOR SPECIFIC JURISDICTION MODERN TESTS OF GENERAL JURISDICTION CONTINUOUS AND SYSTEMATIC BUSINESS OPERATIONS PURCHASES AND SALES MODERN TAG JURISDICTION IN BURNHAM V SUPERIOR COURT (#8) CONSENT AS A SUBSTITUTE FOR POWER PERSONAL JURISDICTION AFTER BURNHAM & CARNIVAL CRUISE NOTICE FRCP RULE 4 OTHER RESTRAINTS ON JURISDICTIONAL POWER LONG ARM STATUTES VENUE FEDERAL QUESTION JURISDICTION (28 U.S.C. 1331) WELL PLEADED COMPLAINT RULE DEVELOPMENT MODERN WELL-PLEADED COMPLAINT RULE DIVERSITY JURISDICTION BACKGROUND DETERMINING DIVERSITY JURISDICTION DETERMINING STATE OF DOMICILE DIVERSITY JURISDICTION AND ALIENS DIVERSITY JURISDICTION AND CORPORATIONS AMOUNT IN CONTROVERSY REQUIREMENT SUPPLEMENTAL JURISDICTION BASIS CASE LAW REMOVAL FLEXIBILITY OF PROCEDURAL REQUIREMENTS IN REMOVAL THE ERIE DOCTRINE FEDERALISM ERIE RAILROAD V TOMPKINS 1 1 2 2 3 4 5 7 8 10 10 10 10 11 12 13 14 14 14 15 17 17 17 18 19 19 19 20 20 21 21 22 22 23 24 24 25 25 26

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DEVELOPMENT OF THE WHICH LAW TESTS OUTCOME DETERMINATIVE TEST (OUTDATED) BYRD V. BLUE RIDGE RURAL ELECTRICAL COOPERATIVE (FALLING OUT OF USE) THE HANNA TESTS (MOST WIDELY USED) STATING A CLAIM REQUIRING AND LIMITING SPECIFICITY UNDER RULE 8 EARLY NO FACT APPROACH BELL ATLANTIC V. TWOMBLY HEIGHTENED PLEADING STANDARDS IN SPECIAL CASES (FRCP 9) BURDENS IN PLEADINGS ETHICAL LIMITATIONS IN PLEADING AND LITIGATION WHERE COURTS RECEIVE POWER TO SANCTION APPLICATION OF SANCTIONS PRE-ANSWER MOTIONS (RULE 12(B)) THE ANSWER FRCP 8, 10, 11 DENIALS AFFIRMATIVE DEFENSES (RULE 8) AMENDMENTS (RULE 15) COURT PERMITTED AMENDMENTS RELATION BACK AMENDMENTS DETERMINING IF A CLAIM RELATES BACK ROLE OF DISCOVERY POSSIBILITIES OF DISCOVERY RELEVANCE RELEVANCE TO A CLAIM OR DEFENSE SUBJECT MATTER RELEVANCE DUTY TO PRESERVE EVIDENCE STAGES OF DISCOVERY DISCOVERY TOOLS INTERROGATORIES (RULE 33) DEPOSITIONS (RULE 30-32) REQUEST FOR ADMISSION RULE 36 DOCUMENT PRODUCTION REQUEST RULE 34 PHYSICAL AND MENTAL EXAMINATIONS RULE 35 LIMITATIONS ON DISCOVERY ATTORNEY-CLIENT PRIVILEGE TRIAL PREPARATION MATERIAL WORK PRODUCTION PRIVILEGE RULE 26(B)

26 27 27 28 29 30 30 31 32 32 34 34 34 35 36 36 36 37 37 38 38 39 40 40 40 41 41 42 43 43 44 44 44 45 45 45 46 48

ENSURING COMPLIANCE & CONTROLLING ABUSE

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RULE 37 RULE 26 ANALYZING A MOTION FOR SUMMARY JUDGMENT THE SUMMARY JUDGMENT STANDARD ADICKES HEAVY BURDEN CELOTEX AND THE MODERN STANDARD BURDEN ON THE PARTY RESPONDING TO A MOTION FOR S.J. TRIAL BY JURY RIGHT TO A TRIAL BY JURY RIGHT TO JURY TRIAL AT COMMON LAW DETERMINING IF A RIGHT TO JURY TRIAL EXISTS COMBINING LEGAL/EQUITABLE CLAIMS JUDGMENT AS A MATTER OF LAW USE OF JMOL STANDARDS FOR JMOL NEW TRIAL STANDARD FOR GRANTING A NEW TRIAL FILING MOTIONS FOR JNOV AND NEW TRIAL RULE 50 ABILITY TO APPEAL FINAL JUDGMENTS INTERLOCUTORY APPEALS CLAIM PRECLUSION SAME CLAIM REQUIREMENT EFFICIENCY CONSIDERATIONS CONSISTENCY CONSIDERATIONS CLAIM PRECLUSION AGAINST DEFENDANTS SAME PARTIES REQUIREMENT FINAL JUDGMENT ON THE MERITS APPLICATION SAME ISSUE ACTUALLY LITIGATED AND DETERMINED ESSENTIAL TO THE JUDGMENT ALTERNATIVE BASES FOR THE JUDGMENT DETERMINATIONS NOT ESSENTIAL TO THE JUDGMENT SAME PARTIES MULTIPLE PARTIES AND THE SAME CAUSE OF ACTION

48 48 49 49 49 50 51 51 52 52 52 53 53 53 54 56 56 57 57 57 58 59 59 59 60 60 61 62 62 63 63 63 64 64 65

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