CIVIL PROCEDURE OUTLINE Sachs Fall 2011 Introduction Justiciability: Does it belong in court?

Comity: Does it belong in a nonjudicial forum? Respect for other fora. Competence: which court is best able to handle it? Power which is granted by Legislature. Jurisdiction: Power conferred by the Constitution, Article III. Jurisdiction SUBJECT-MATTER A. Diversity Jurisdiction Art II, Sec 2 between Citizens of different States provides a requirement for minimal diversity designed to prvent in-state bias 1. 28 USC 1332 Original jurisdiction when amount in controversy exceeds $75,000 and is between: 1) citizens of different states; 2)citizens of a State and citizens of a foreign state; 3) citizens of different states and in which citizens of a foreign state are addt'l parties; and 4) a foreign state as plaintiff and citizens of a State or of different states. Must be a US citizen or permanent resident to invoke diversity jurisdiction. 2. Absolute Diversity Needed Absolute diversity between plaintiffs and defendants necessary for diversity jurisdiction. Strawbridge v. Curtiss. 3. Domestic relations exception Alimony, divorce and custody are not within federal purvue, even with diversity. Ankenbrandt v. Richards. 5. Citizenship for Purposes of Diversity a. Individuals: Domicile Resides (presence) with intent to remain indefinitely (evidence can provide proof of intent but state of mind is dispositive) Only one domicile at a time. Look at domicile when suit filed. b. Corporations are citizens of 1) place of incorporation and 2) the principle place of business. (nerve center/headquarters) Hertz Corp v Friend d. Unincorporated associations take on citizenship of each of their members. e. "Alien" permanent residents are citizens of the state where they are domiciled

7. Amount in Controversy a. >$75,000 Claim must be greater than $75,000; set by plaintiff. Test: 1) can't be thrown out unless it is legal certainty that amount < 75,000; 2) good faith, no fabrication by . Valuation: from plaintiff perspective. b. Aggregation 1) Plaintiff may aggregate any claims against defendant to meet total but not separate Ds 2) Multiple plaintiffs cannot aggregate; each must meet minimum. 3) Plaintiff can aggregate claims against mulitple defendants if the claim is "joint." Eg: a BIG diamond 4) Counterclaims not considered in equation Tag-along rule: 28 USC 1367 Supplemental Juris 6. Policy Interests with Diversity J Constitution sets outer bounds Congress has limited it with amount in controversy and complete diversity a. Interests served by limiting or expanding diversity jurisdiction Limiting: economy, federalism, state courts may be more economical and closer to issue. Expanding closer to limits of Article III: convenience of parties, centralizes and combines multiple state cases, eliminates home-state advantage, greater prestige, commercial interests. b. Protect out-of-state parties from in-state bias Since out-of-state parties cannot participate in the democratic process of the state, and b/c an instate plaintiff may seem more sympathetic, give a "neutral" federal forum. Why do people care about which court system will try their case? Local prejudice; Different procedures Single / multiple judges; Convenience/ Familiarity; State judges are elected/ appointed B. Federal Question Jurisdiction 1. Constitution: to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treatie As long as it has a federal ingredient but limited by 1331 and by Motley 28 USC 1331 Federal Court has original jurisdiction over all actions arising under the Constitution, laws, or treaties of the United States. No amount in controversy requirement. 2. Well-Pleaded Complaint Rule A federal question must appear on the face of plaintiff's complaint. Louisville & Nashville RR. v. Mottley.

P must rely on Fed law for relief (cause of action); anticipated defenses/rebuttals do not qualify, no jurisdiction. Mottley is highly restrictive and replaces "Osborne rule," which said that if a federal question was an ingredient, then jurisdiction. Rationale: can't let in every case with a federal ingredient; plaintiff can't define defense; Fed could intrude on state cts 3. Holmes Test: a suit arises under the law that creates the cause of action If well-pleaded complaint shows federal cause of action, ie, seeks relief under federal Counterclaims: Ps claim no FedQ, but Ds counterclaim has FedQ, still no jurisdiction bc FedQ must be in Ps orignial claim Declaratory Judgements: Inverting position of P and D doesnt change question: Does Ps claim rely on Federal law? EG: In Motley, RR would still have to sue in st. ct. (No race to the court house) Exception: Federal stat. creates a cause of action If explict in stat., then juris If not explicit, then is P part of the class, congressional intent, infringes upon state juris, division of labor 4. Grable Test: state claim turns on federal law A state claim which turns on resolution or interpretation of a substantial federal issue, not for relief but for resolving a part of the dispute. Only from perspective of the P Fed issue must be raised in pleading; is substantial; and sound division of labor EX: IRS seizes Ps property and sells to D. P sues D over quiet title (st. claim) bc IRS took property improperly (fed claim) C. Supplemental (Pendent & Protective) Jurisdiction Provides broad authority for a federal court that has original jurisdiction over a case to hear related state claims Overrules Finley and affirms Gibbs/Kroger 1. 28 USC 1367 a. Original Jurisdiction over related claims (a) In cases of original jurisdiction, supplemental jurisdiction over all other non-federal claims that are so related to the original claims that they form part of the same case or controversy, includes joinder or intervention of addt'l parties. b. For cases based on diversity some exceptions apply No supp. jur. over claims by plaintiffs against defendants made parties under Rules 14, 19, 10 or 24, or over claims by persons proposed to be joined as plaintiffs under Rule 19, or seeking to intervene as plaintiffs under Rule 24, when granting supp. jur. would defeat full diversity. EX: P sues D1 who impleads D2 under 14a. P cannot assert direct claims against D2 if not diverse from P. Like Kroger c. Discretion to Decline Court may decline supp. jur. if: claim raises novel or complex issues of State law; state claim predominates over the federal claim; fed claim drops out early; jury confusion, ie, need to tried separately anyway; Look at convenience, judicial economy, fairness

d. State Statute of Limitations Tolled statute of limitations for any claim asserted under (a), shall be tolled (stopped) while claim is pending plus 30 days after dismissal, unless State tolling period is longer. Goal of deterring "protective filings," filing in State court so you keep your options open; clogs courts. If the federal court dismisses your supplemental claims, you won't have lost your chance to file in State court. 2. Pendent Claims "Gibbs test": Two claims (one State, one Federal) = jurisdiction, if the two claims arise from a "common nucleus of operative fact" and would normally expect to be tried together. Old Kroger test: Ct must have statutory authority to hear the claim. Ex: P sues D1 who impleads D2. P and D2 are not diverse so P cant file 3rd party claim 3. Protective Jurisdiction Congress has power to grant the courts jurisdiction over areas over which Congress has legislative jurisdiction, such as interstate commerce. Textile Wks. v. Lincoln Mills. This means that Congress can authorize federal courts in non-diversity cases to hear cases involving areas over which they have legislative power - ex., labor law - and have federal courts enforce state rules. D. Removal Jurisdiction (from State to Federal) Policy: balances the forum selection powers of P and D 28 USC 1441 (a) Defendant has the right to remove a case to federal court if the federal court would have had jurisdiction. All Ds have to agree Ds FedQ defense or counterclaim doesnt make it removable (b) if claim has Fed Q, diversity doesnt matter. If not Fed Q, then you need diversity BUT can only remove if no defendant was citizen of forum state. (ie, if D sued in-state, D cant remove) **And P can destroy diversity by adding non-diverse D; but ct can choose whether to accept or not (c) If there is one Fed Q claim and other nonremovable claims, a court may join the claims and remove the entire case. BUT ct may remand substantial state clams **Rationale: reverse of 1367; should not be able to defeat 's right of removal by adding separate, nonfederal claims. Efficiency says we may need to hear them together, but should still be able to get into federal court on the federal claim. 28 USC 1446 D must ask for removal within 30 days of start or any other time when it becomes known that it can be removed PERSONAL Guiding Principles PJ turns on the relationship between the defendant and the state and if it would be fair for the state to exercise their power over them. Focus on Claims, not Cases. Still have to have PJ over each claim, so addl claims may not survive for specific J Statutory Limits (Must satisfy both)
1) Authorized by long-arm statutes?

A st. court cannot exercise jurisdiction unless a long arm statute or some other statute authorizes it. Statute may enumerate types of cases, or go to constitutional max
2) Not a violation of DPC?

Not constl if no min. contacts or not fair and reasonable

States

14th DPC limits Long Arm Statutes

Fed

5th DPC limits FRCP 4K

There is no nationwide IPJ; all federal court IPJ must be related somehow to State IPJ Fed ct is authorized to exercise personal J over a D only to the extent it could be exercised by the courts of the state in which the Fed ct sits Therefore, personal J can vary from one Fed ct to another depending on long arm statutes EX: D from CA batters P from NY for $750001 in NY. SMJ
Fed Q - No Diversity Yes

PJ
CA state Yes, domicile CA Fed Yes, under 4k1a NY state Yes, min contacts NY Fed Yes, under 4k1a

A. Historical Bases of In Personam States ONLY have power over their citizens and any property within their boundaries 1. Presence (Territorial) Presence (even transient) in the territory sufficient for J Pennoyer. Reaffirmed Burnham Exceptions: immunity for witness to trial; officers of a company (except if partner), induced by fraud or force, limited appearances.
5

2. Domicile Even if not present, domicile will give rise to IPJ. Milliken v. Meyer. Presume no inconvenience to ; strong State interest; has influence over political process; purposeful availment of forum gives rise to reciprocal duties. 3. Consent Appearance before Court: Whenever a party to suit - or - appears before the court without challenging J, is accepting IPJ. Means that a will be open to countersuit by , even if otherwise no IPJ over . Statutes can presume consent: Hess, if you drive into MA and have an accident you consent to IPJ in MA. Choice-of-forum clauses: Carnival Cruise, after Shaffer, deemed OK because of bargaining power and purposeful availment. Still look for minimum contacts here. Status relationships husband/wife B. Change to Due Process Analysis International Shoe: Overturns Pennoyer bc it didnt work well for corporations. The question centers around DPC if a company has submitted themselves to states authority. Modern doctrine: Same as old, but also personal J if D has minimum contacts and doesnt offend traditional notions of fair play. Rationale: D must take the bitter and the sweet of operating in another state and can be hailed into ct for claims arising out his activities there C. Minimum Contacts Test Must prove 3 elements
Contact

Satellite - No; Transmission Maybe so

Arising out of Contact

Satellite Still no; Transmission - Yes

Reasonableness & Fairness considerations

(After deliberate contact est.)

a. Burden on Defendant fact-driven test. Assume that foreigners esp. burdened by appearance in US forum. Any evidence of contact with State argues against inconvenience. Financial resources available? c. Interest of Forum State Look for manifest interest; assume state interest if is a State resident. d. Plaintiff Interest in Relief e. Serve interstate efficiency/policy interests f. Convenience and location of evidence/witnesses

DISSENT: The bar for J shouldnt be so high. Insulates firms from being sued Foreign firms dont think in terms of the CA mrkt but generally of US mrkt Specific J- arising out of Ds voluntary relation to state; based on single act or continuous but limited contact a. Purposeful Availment - (Hanson) purposefully avail[ed] itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws Ex: uses state public benefits, doing business or advertising in state, owns property/residence, NOT moving and dieing to another state Ex: Entering contracts even w/o entering the other state, bolstered by choice of law in contract (Burger King) c. Arises out of: But for test (claim does not arise but for contact) v evidence test (contact proves elements of underlying claim) Contract Cases: not necessarily subject to PJ if in contract w/ a P in different state. (Burger King) Factors: where negotiated occurred/were directed toward, provisions for (choice of law, forum), obligations created in fourm Effects test: dont have to have physical connection, just availing themselves or targeting the forum state Ex: libel suit in CA for magazine circulated in CA against writer/editor in FL (the more directed and intentional action, the stronger the claim for jurisdiction) (Calder) Having children in the forum state is not, in itself, enough. Zippo Test (Internet) Passive websites no interactivity with users no jurisdiction Active websites high interactivity (ie. sales) yes jurisdiction In between judgment call (have to see how interactive the site is) b. Products - Stream of Commerce (Asahi) If one could foresee a product ending up in a state. You could be sued there. (Gray)
P's UNILATERAL DECISION to take a product to a distant state, without more, is insufficient to confer personal jurisdiction

Ex: No juris. over NY car dealer for accident of their car in OK. (World-wide Volkswagen) Two Methods of Analysis: Conduct v Regular Flow
Conduct (OConnor - Asahi)

Ds conduct/connection must be such that he would expect to be sued there. Not merely foreseeable that one of his products would end up there. Ex: Component mfg not necessarily liable wherever components end up. (Asahi) Specifically target a mrkt (Plus Factors) Adaptation for specific market State-specific advertising Direct activity in state Foreign mfg? # of Intermediary? Ex: Machine from Britain but sold thru indep. firm (McIntyre)
Regular Flow (Brennan Asahi)

Volume of Sales? Hazardous nature? Part of the regular anticipated flow not eddy, isolated occurance General J Ps claim doesnt arise out of D's contact with the forum, but D has continual presence in forum Systematic and continuous contacts with the forum. Such a level of purposeful availment that should reasonably expect to be sued there for anything, ie, resembles home state Ex: A store/office, can sue Walmart anywhere bc it has a store in every state. Or in-state agent required by state Ex: Not continual business transactions, CA firm conducting regualr business in MA. No Gen J No Contacts (No J) < Casual, Sporadic (No J) < Single Purposeful Act (Spec J) < Continuous, Limited (Spec J) < Substantial, Pervasive (Gen J) D. In Rem & Quasi-in-Rem (1) and (2) 1. Before Shaffer v. Heitner Before Shaffer, in rem, and quasi-in-rem types 1 and 2, were both permissable, as long as the had property in the forum state. a. In rem: The interests of the whole world in property; quieting title to property, settle an estate. b. Quasi-in-Rem Relative between two litigants

i. QIR Type 1 Dispute over who has superior interest in a specific property. Ex: my bike or yours? ii. QIR type 2 Dispute not over ownership of property, but to settle a separate claim. P holds property hostage. Ex: you owe me 5 bucks. that sandwich is mine. 2. Shaffer v. Heitner Facts of Shaffer; shareholder derivative action, sought DE J over non-resident corporate directors on the sole basis of their stock in DE corporation. Held: in quasi-in-rem actions, the Int. Shoe minimum contacts test must be applied, as all actions against property are really about people. Arguments that DE law should control are not enough for J; only enough for choice of law. 3. After Shaffer a. In Rem: No real change When the claim relates directly to the whole world's interest in in-state property, it is likely that state will have IPJ. Property will be looked at as one contact, and as an indication that there may be other contacts. Will probably point to both a state interest and purposeful availment. b. Quasi-in-Rem: Change Both forms of QIR must comply with the International Shoe due process analysis. In practice, it will now be extremely hard to assert QIR type 2; but, since property in type 1 is related to the suit, then it will considered a contact and will point toward finding J. Tested in Rush v. Savchuk. Car accident connected to IL, suit barred in IL; moves to MN, sues in MN and asserts QIR by attaching 's insurance policy, owned by a co. with business in MN. Held: the insurance policy was not actually the substance of the claim; asserting QIR violated due process analysis mandated by Int. Shoe and Shaffer. Limited opening for QIR through FRCP Rule 4(n), in that federal government can seize property without IPJ if need to for compelling public interest, safety. c. Effects of Shaffer on other justifications for IPJ Consent, Appearance still OK. Transient J still OK; Burnham. However, only a plurality decision. Future unclear. Is transient OK because of tradition or because it signals purposeful availment? DE passed statutes requiring in-state agent 2. Limited Appearance Appear for purposes of defending self on the merits in an in rem or quasi in rem suit, you are immune from any other suit, and your exposure is limited to the value of the property. You are not challenging J, just limiting your appearance to the specific claim involving your property.

This was not available in DE at time of Shaffer; part of the injustice that led to the holding? Do we still need limited appearances now that QIR is subjected to a due process analysis? F. Methods of Challenging Jurisdiction Direct Attack Special Apearance: Some states allow D to contest personal J only Fed Rules (Some states): allow D to MtD (12b2) in reply along with other motions. But must motion at the start or else waives right Appeals In feds and most states, cannot appeal personal jurisdiction until final judgment; some states allow interlocutory Collateral Attack Wait for default judgment then raise personal J on enforcement. Waives defense in original suit and can only raise jurisdiction issue FEDERAL V STATE A. Concurrent Jurisdiction A state ct can hear federal claims unless Congress has mandated exclusive juris. **Fed ct can hear state claims if they have subject matter juris from diversity and supplemental Venue Once the federal courts have jurisdiction, in which courthouse will the case be heard? Not constitutionally based; purely a creature of statute. Protects from inconvenience, promotes efficiency. State venue statutes not our concern; very permissive, generally a state claim can be heard in almost any state district, unless it involves real estate, if so will be heard where the property is located. A. 28 USC 1391: Venue Generally (a) A civil action wherein jurisdiction is founded only on diversity of citizenship (1 )where any D resides if all Ds in the same state (2) where a substantial part of the events" giving rise to claim occurred, or where the property in question is situated. as long as what happened in the forum was an important part of the sequence of events giving rise to the case, venue was proper. (3) If there is no such district, venue OK in district where ANY is subject to personal jurisdiction Ex: CO sues VA and MA for accident in IL. Venue only proper in IL If accident in Canada, then no venue. Use fallback provision anywhere VA or MA is subject to PJ. (b) Federal Question Actions (1) Same (2) Same (3) If there is no district, venue is proper where ANY "may be found." What does this mean? Unclear. Probably meant to be a more permissive standard than residence. Rules for corporations are the same. (c) Corporations Resides in every federal district of the state where it would be subject to personal juris B. Specialized Venue 28 USC 1402 Tort claims against govt can be brought where the plaintiff resides or where incident occurred 28 USC 1400(a) Copyright and Patent Infringement

10

C. Transfer of venue (not for remanding to state ct) 28 USC 1404: Change of Venue (Original Venue Proper) (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other districtor division where it might have been brought. might have been brought = if originally filed in the transfer court, it would have been proper and exercised personal and subject matter juris. No post hoc I would have granted/waived personal juris Ps choice should rarely be disturbed UNLESS forum would establish oppressiveness and vexation to D out of all proportion to Ps convenience (Gulf Oil) Balancing Test Ps choice (Greatest weight)? Burden on D? Where claim arose? Convenience of witnesses/ access to evidence? (Strong) Public Interests: congestion of cts, local interest in deciding, familiarity with transferor cts law? Choice of law If transfer granted, the law of the transferror court travels with the suit. Van Dusen. Rationale: since venue was proper, should not suffer a loss of advantageous law if transfer granted for convenience. 28 USC 1406: Cure or waiver (Original Venue Improper) If case was not brought in the proper venue, court may dismiss the claim or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought. Court considers: whether statute of limitations has run, convenience of transfer The case will then be judged by the law governing the transferee court. D. Dismissals 28 USC 1406 + 12(b)(3) Forum non conveniens (Common Law) While we allow to choose forum, this can be overcome if a balance of interests points to an alternative convenient forum. Piper v. Reyno. Used primarily in cases with foreign D. 1) An available alternative forum available? Necessary prerequisite. Defendant has burden to show that it can be refiled there. 2) Balancing Test: Same as 1404 but more reluctant and consider choice of law factors more closely Ps forum choice accorded less deference if not from forum Choice of law: will have to apply foreign law? Does foreign law r forum offer adequate remedy? Can only consider this question in a limited fashion; can't have a mini-trial on how case would be decided under foreign law. Notice Guiding Principle: Ensuring the Opportunity to be Heard A. Service of Process FRCP Rule 4 (a) - Contents of the summons (c)(1) - What documents must be served (complaint and summons) (c)(2) - Any person over 18 and not a party can make service (d) - How to solicit waiver of service Creates a duty to waive, ct can impose costs if not waived, offers 60 days rather than 20 to reply (e)-(j) - How the papers must be served (e): five methods for serving process on individuals

11

Rule 4(e)(1) - follow state provisions in forum state OR state where D is Ex: Follow CO rules if filed there or MA rules if D is there 4(e)(2): serving individuals Personal delivery to D Leaving copy of summons/complaint at his dwelling/usual place of abode with a person of a suitable age and discretion residing therein Delivering papers to an agent appointed by D for that purpose (h)(1): serving corporations inside the US Service to an officer, managing or general agent of D, or an agent authorized to receive it One of methods prescribed in 4(e)(1) (k) How to establish Fed J 4(k)(1)(A): Long Arm Statute 4(k)(1)(B): "100-mile bulge" if party necessary for suit under rules 14 and 19, can be served if IPJ could be obtained within a 100-mile radius of courthouse; do a standard IPJ minimum contacts test between party and bulge; 4(k)(1)(C): Interpleader (nationwide service allowed) 4(k)(1)(D) Specific federal statute (congress can specify IPJ whenever it passes a new law.) 4(l) How to prove service (affidavit) (m) How long given to serve (w/in 120 days of filing) B. Notice: A Constitutional Req (DPC) Requires P to attempt notice "reasonably calculated to reach parties" If parties are known, serious efforts necessary and the means employed must be such as one desirous of actually informing the absentee Ex: If sent a letter, but see car hit mailman. Then you must still try again although first was a valid attempt All reasonable steps under the circumstances. Actual notice will not cure a flawed notice mechanism; if publishes when should have sent a letter, and accidentally sees notice, it is still insufficient. But actual notice not always necessary Heroic efforts are not required. Sometimes all the parties who are or may be affected by a suit cannot be known or located, you can still bring the suit without actual notice. Mullane. However, you still must make reasonable efforts to find out who the parties are and if they can easily be reached. As last resort, notice by publication would be OK. 3. Pre-Judgment Remedies a. Prejudgment remedies which allow state-sponsored seizure of property are subject to due process requirements. Absent an emergency, such seizure cannot be made on the naked claim by that she is entitled to the property. b. Notice is illusory without an opportunity to be heard. There must be real, immediate and fair opportunities for the to challenge the seizure of property. c. Factors to be weighed: i. Hearing Provision for a pre-deprivation or post-deprivation hearing. Unfair to put burden of reclaiming property on ; a post-deprivation hearing may be OK if it kicks in automatically after the seizure. ii. security or bond Does have to post a bond to effect seizure?

12

Does have to post a bond to regain property? iii. Double bond If the taking is erroneous, will have to pay double damages? iv. Documentary Proof What does have to show to effect seizure? Unpaid bills, forfeitures, etc.? Able to show a systematic nonpayment, or only one missed payment? Who will judge this proof - a clerk or a judge? d. Interests at stake i. For Temporary enjoyment of property interest in avoiding permanent deprivation Dignity interest ii. For fear of vanishing assets if not seized may also have a property interest, esp. if an installment plan in rem J: without the seizure, will have no remedy iii. For society Proper use of court resources: don't want frivolous or harassing seizures enforced by the State Want to discourage self-help and make sure proper seizures are done by State and not by vigilantes Interest in encouraging installment plans, credit, etc. by giving creditors and merchants a remedy interest in citizens not being erroneously deprived of their property Pleading A. Guiding Principles Developed from technical/formalistic English sytem Writ System process down to a single issue Law and Equity distinction b/w types of remedy Code Pleading fact pleading FRCP notice pleading FRCP merged law and equity into one civil action Purpose of pleadings changed from categorizing complaint by type of case to: providing notice to the other parties, not game of skill identifying factual allegations and legal theories narrowing issues sifting through non-meritorious suits Responsive Pleadings (Rule 7(a)): D must answer complaint P must answer counterclaim Co-D must answer cross-claim 3rd pary D must answer 3rd party complaint Allegations must simple, concise, direct. No technical form required Forms in FRCP are simple Conley: Complaint should not be dismissed unless P can prove "no set of facts" in support of the claim that would entitle him to relief Twombly Iqbal Test: Retired Conley S.Ct viewed this standard as overly permissive, as it permitted a P to proceed to discovery on a frivolous claim

13

D has a rt to logically coherent theory of liability Critique: Moves toward more fact pleading New Step 1: Subtract out conclusory allegations Statements so generic they could be cut and pasted into any fact pattern No recital fo the elements of the cause of action Critique: P doesnt have enough info often to make more than conclusory allegations Step 2: Treat remaining well-pleaded facts as true Step 3: Draw all only plausible inferences Conley used to draw all reasonable inferences in favor of the pleader. Now it must have "enough facts to state a claim to relief that nudges it across the line from "conceivable to plausible 50/50 allegations that could support innocence or guilt go to the D This is context-specific and judges decide Critique: Judges asked to rely/use their judgment more (ie, background/exp). Conceivable/plausible line is very blurry and shifting For Ps: Must now err on the side of fact pleading, avoiding bare bones recitations of the elements and must address each element of a claim For Ds: Use 12b6 MtD for failure to state a claim more often, targeting conclusory allegations B. The Complaint Rule 8(a) (1) Statement of the grounds of jurisdiction (2) Short and plain statement of the claim on which relief can be granted Assert alternative legal theories and bases Rule 9(b) For allegations of fraud/mistake: requires more particularity of circumstances Other than fraud/mistake no heightened std (3) Demand for relief C. The Response D can make pre-answer 12b motion or include motions in answer, else they are waived Answers and motions are held under similar std as complaint; must contain more than recitations, conclusory stmts, bare bones stmts Cannot reserve the rt to make defenses and motions later Default Judgment (Do nothing) - Rule 55 Default entered into the clerk. D essentially admits the facts of pleadings Damages must be fixed before a default judgment Judge reviews whether P has a cause of action in complaint Default is not mandatory. Ct has discretion to decine to enter judgment 55(c) default can be set aside for good cause Answer - Rule 8(b)-(c) Fairly responds to the substance of allegations by admit or deny Can deny in part or generally everything A denial may also be based on the D's lack of knowledge or information sufficient to form a belief about the truth of an allegation A failure to deny an allegation is treated as an admission.
14

Cannot wait behind a log with new defenses Ingraham. Although D can ask to amend answer Assert affirmative defenses (c)s list is examplary not exhaustive Motions Rule 12 12(a) 12(b) D can always raise SMJ at any time. D can raise B6 and B7 for first time at any point of the trial SMJ PJ Improper Venue Insufficent Process Insufficient Service of Process Failure to state a claim Ct looks at the four corners of the complaint, ie, only the well-pleaded allegatoins and doesnt look at materials outside or addl evidence brought in If D introduces more material, then converts into a 56 SumJ Failure to join an indispensable party 12(e) Motion for a more definitive statement 12(f) Motion to Strike insufficient defense disfavored by Ct for Ds. 12(g)(2) - Omnibus Rule (prevents serial presentation) Must include 12(b)(2)-(5), (e), (f) that are available in first response or else they are waived Avialability depends on the content of the initial pleading; more can become available after amendments, discovery Cannot reserve the rt to bring up later 12(h) Waiver (trap) Omitting like in 12g2 Failing to make it by motion or include in responsive pleading Counterclaims D. Representations to the Court; Sanctions Rule 11(a) every pleading/etc must be signed Rule 11(b) attorney certifies that to the best of the persons knowledge, information, and belief, formed after an inquiry reasonable not suing for improper purpose claims are warranted by existing law/nonfrivolous factual contentions have evidentiary support denials are warranted on the evidence Rule 11(c) Sanctions for violations of 11(b) Amending Pleadings Rule 15 (a) Before Trial (1) As a matter of right (A) Can amend complaint/answer w/in 21 days of serving (B) if the pleading is one to which a responsie pleading is required or is a 12(b,e,f) motion, 21 days after service of a it (2) Can amend only with consent of other party or leave of ct. (if justice requires) Foman v Davis: court should freely give leave when justice so requires

15

Liberal at start and less liberal as time goes on Consider why P/D needs amendment: it will not be granted in cases of: Bad faith? Delay tactic, manipulation? Lack of diligence, eg, Aquaslide multiple people checked waterslide Undue prejudice for lateness, ie, inability to prepare to defend Futile amend? analyzed like 12b6, ie, Twombly Prior amends, ie, could have done earlier Judge must abuse discretion to appeal amend. (b) During and After Trial (1) Based on an Objectin at Trial used when new evidence at trial not w/in scope of original pleading (2) For issues tried by Consent (c) Relation back (mainly for SOL problems) (1) An amend. relates back to the date of original pleading when: (A) the law that created claim allows relation back (B) amend. asserts a new claim/defense that arose out of the transaction described in original pleading Must be careful bc transaction may feel the same but if it requires new defense/evidence it doesnt qualify. Ex: Failure to gain consent PRE operation; not same transaction as negligence POST operation Moore v Baker (C) the amend changes the party (names a new D) must be of same transaction received notice w/in Rule 4(m) 120 days of service of the original party knew or should have known that the action would have been brought against it but for a mistake Joinder Guiding Principles Efficiency: get everything settled at once, no wasted litgation over what is related to the same transaction If claims are completely unrelated and would confuse matters, Rule 42(b) allows ct to order separate trials or Rule 21 allows ct to sever claims
Rule 20(b) The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom the party asserts no claim Rule 42(b)

For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims.

Joinder follows very liberal principles P: more Ps make stronger story, strong Ps carry weak, evidence of pattern, inflame jurys sense of justice
16

D: divide and conquer, attack weak cases, increase costs for Ps D must show interests of justice would be disserved by joinder Appeals must show abuse of discretion Joinder doesnt confer SMJ or IPJ, they be must analyzed separately for each party and claim. Claim Preclusion/Res judicata - P cant bring later suit for something that could have been joined to the first one; creates potential mandatory assertion of related claims Transaction or Occurrence Test: Issues of fact and law largely the same? Res judicata bar subsequent suit? Will same evidence substantially support/refute? Logical relationship? The test focuses on the underlying events not the legal theory or type of relief sought Who can be parties? Rule 17 17(a)(3) joinder for real party in interest 17(b) capacity to be sued is determined by law of the state 17(c) minors Joinder of parties Rule 19 & 20. Permissive Joinder - Rule 20(a) (1) Multiple Ps can join together
2 prong test (relief/recover sought is irrelevant)

arise out of same transaction? common question of LAW or FACT? Ex: Hohlbein v. Heritage 13(h) D1 can add D2 in a counterclaim (2) Multiple Ds can be joined together
sued jointly, severally, or in the alternative 2 prong test

Required Joinder - Rule 19 (ct can order person who refuses to be made a party to join as D or involuntary P) 1) Is joinder required? Yes if ct cant accord complete relief w/o them if absent partys ability to protect their interests will be impaired if D could be subject to inconsistent obligations 2) Is joinder feasible? Yes If subject to service of process If SMJ (diversity) will not be destroyed
17

No Then Ct must determine if the action should proceed or be dismissed, considering: Prejudice agst absent party? Can absent party be protected by shaping relief, provisions, etc? Will judgment be consistent/adequate? Will P have adequate remedy if dismissed? Other forum available? Joinder of Claims Rule 13 & 18 Parties can assert as many claims as they want against each other. If they are adversaries, they must assert all claims related to the same transaction, but crossclaims are not compulsory. A new claim unrelated to original transaction then requires Rule 13 compulsory claims. Rule 18 (a) a party asserting a claim/counter/cross/3rd party may join as many independent/alternative claims as it has against P/D Ex: (b) May join two claims even if they are contingent on the disposition of the other Rule 13 (Counter/Claim Claims) (a) Complusory must assert if at the time of service the claim arises out of the transaction and doesnt require adding another party (2) Check for exceptions (b) Permissive may assert any counterclaim that is not complusory (g) Crossclaims optional but must arise out of the transaction or occurrence or indemnification (h) D can join other Ds under the same rules as 19/20 Confluence of 18/13 and 20/19 Once one claim is properly asserted, Rule 18 allows assertion of more claims. So Ps can add different unrelated claims after they share a properly asserted claim together Impleader Rule 14 Prevents P from choosing who the blame falls on. But Impleader doesnt destroy diversity of original claim and isnt consider for venue Allows D to add a 3rd party where D is seeking to pass on all/part of liability (not substitute/alternative D) - 14(a)(1) Ex: Indemnification, contribution 3rd party must assert 12b defenses for Ps claim and/or Ds liability claim and assert all other claims required by Rule 13 14(a)(2) 3rd party may likewise add addl 3rd parties 14(a)(5) P can bring in 3rd parties that a D could have 14(b) Factor to Consider for Impleading (Erkins v Case Power) Timeliness of the motion Potential for complicating trial Probability of delay
18

Whether P is prejudiced by addition of 3rd parties Intervention Rule 24 Ex: RR was forced to close down certain tracks. Ford needed tracks for operation of its plants. (often to block a settlement) Used in large public law litigation, eg, challenging logging practices where Sierra Club sues US and logging firms have stake Intervention of Right 24(a) 1) Granted unconditionally by Federal Statute 2) Applicant has interest in transaction/property disposition will impair his ability to protect interest no party can adequately represent his interest Permissive Intervention 24(b) 1) Granted conditionally by Federal Statute 2) shares a claim or defense with a common question of law (doesnt require same transaction) Factors to Consider Timeliness in proceedings, purpose of intervention, prejudice to existing parties Interpleader 28 USC 1335 or Rule 22 designed to protect persons in possession of property (stakeholders) the ownership of which is or may be claimed by more than one party resolve at one time the claims of many persons to one piece of property and avoid inconsistent obligations pie-slicing interpleader = protection from multiple claimants who must split the money held by holder 28 USC 1335 DCourts have original J of interpleader cases if amount at stake is more than $500 must be two or more claimants who satisfy diversity in 1332. Need only minimal diversity not complete must put property into the registry of the court or put bond in the court 28 USC 2361 provides nationwide personal jurisdiction and nationwide service of process 28 USC 1397 special venue statute Rule 22 Normal 1332 rules (complete diversity b/w holder and claimants/ $75000) Normal personal jurisdiction rules apply Class Actions Guiding Principles DPC protects P (ex: Burke v Kleiman) adequate representation no backdoor dealing similar interests properly considered a class wanting same thing procedures that insure full and fair trial must follow appropriate class action procedures Implcit requirements: must define class and the class claims, issues, or defenses

19

Membership capable of ascertainment under some objective std In Re Teflon Products Cannot be speculative or need addl evidence Cannot proceed if impossible to tell who is in the class Class must be certified first in order to proceed in their suit Can bind out of state class members Phillips Petroleum Co. A. How to qualify as a class? Prerequisites Rule 23(a) Numerosity: Parties so numerous joinder is impracticable Commonality: Questions of law or fact common to the class Typicality: Claims or defenses of the representative Ps are typical of the class Generally established if the same event or same legal theory No if individualized inquiry is necessary, no economy is achieved Can differ based on remedy sought Adequacy: Representative Ps will fairly and adequately protect the interests of the class If conflicting interests then automatically no representation Hanberry v Lee Ps cannot be in cahoots with D Types of Class Actions Rule 23(b) Prejudice inconsistent adjudicaitons for the D if piecemeal adjudication would impair Ps to protect their interest, eg, limited fund (must be really limited) Injunctive Relief Injunctive relief is appropriate with regard to the class as a whole, ie, Ds general conduct impacts all the class, eg, discrimination. Cohesiveness? (bound together by a common trait, legal relationship) Money only incidental Damages (Catch-all) Common questions of law or fact of group predominate and class action is superior method (Predominance + Superiority)
Predominating common question Requires same proof or same legal theory (In Re Teflon) Yes. Does Teflon cause harm No. Not precluded even if individual proof of damages required? As long as allocation of individualized damages isnt unmanageable? Mutual Interest Resolution of one issue would advance litigation for all Common q is part/central to all members claims Superior to other methods (3)
A) the class members interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members;

20

(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.

Walmart discrimination B. How to certify? Must certify early 23(c)(1)(A) Must define the class 23(c)(1)(B) Notice 23(c)(2) For type B1 and B2 classes, ct may direct appropriate notice For B3, best notice that is practicable, including individual notice to those who can be identified. Notice must clearly state: Nature of action, definition of the class, claims, issues, defenses, etc, how to opt out C. Will Ct have Jurisdiction? Fed Q normal rules apply Diversity 1332: if one Ps claim exceed $75,000 and diverse include rest under Supp J if same transaction. Exxon Mobil 1332(d) (CAFA of 2005) 1) At least 100 members (d)(5)(B) Mass action 2) Aggregated amount must exceed $5,000,000 (d)(6) 3) Any P is citizen of different state than D Also, P is foreign and D is citizen or vice versa Ct must decline if: Home State: More than 2/3 of Ps from forum state Local Controversy: One Ds conduct forms a significant basis for relief Principal injuries occurred in forum state Ct may decline if: 1) 1/3 to 2/3 of Ps are from the forum state 2) Primary Ds are from the forum state Considerations National/interstate interest? Choice of Law? Pleaded in a manner to avoid Fed J?
21

Distinct nexus b/w Ps, Ds, or harm and the forum state? (Ex: oil spill) One group of Ps dominate or balanced across multiple states? D. How does Ct appoint class counsel? 23(g) Ct that certifies must appoint counsel Consider: current counsels legwork, previous exp/knowledge, resources Ct may award reasonable attys fees - 23(h) E. Class Action Judgments - 23(c)(3) F. Settlement, Voluntary Dismissal - 23(e) Direct notice of settlement to all members Ct can only approve after a hearing on fairness, reasonableness, adequacy? Considerations: Synfuel v DHL Strength of Ps cases Amount offered Expense of litigation Any Ps opposed Stage of proceedings Type of offer. Do not like inkind/coupon offers Disgorge ill-gotten gains? Benefits actual Ps rather than future customers? Parties must identify any agreement made in connection with settlement. No foul play? Sweetheart settlement? Need a second chance at opt out Any P can object to settlement Discovery Scope of Discovery What? 26(b) May obtain discovery that is relevant to any partys claim or defense Is nonpriviliged Doesnt have to be admissable at trial, only appears reasonably calculated to lead to discovery of admissable evidence Controls on discovery Trial ct in best position to judge; subject to review of abuse of discretion; Chudasama v Mazda Parties have lots of power to consent and negotiate terms fo discovery 26(b)(1) for good cause, court may order discovery of any matter relevant On motion or sua sponte, Ct must limit frequency and extent of discovery if: 26(b)(2)(C) Unreasonably cumulative More convenient/less burdensome source Had ample opportunity Burden of discovery outweighs benefit E-Discovery: no undue or burdensome for unless good cause- 26(b)(2)(B) Ct can undertake a cost/benefit analysis; McPeek v. Ashcroft where DOJ had backup files P wanted and court let search limited number to see how useful they were first Info Protected from Discovery Privileged Materials

22

P/D must expresslymake the claim of privilege 26(b)(5) Lawyer Client Privilege Lawyer Work Privivege 26(b)(3)(A) Conditional privilege: if party has substantial showing of necessity or justification. Ex: Hickman and early deposition of witnesses Absolute privilege: writings reflecting attys impressions, conclusions, opinions, legal research, legal theories Protective Orders 26(c) Partyies must confer in good faith to resolve prior to seeking Ct may grant for annoyance, embarrassment, oppression, undue burden/expense Must compare the hardship to the each opposing party. Consider the possibility of a crafted order Types (A-H) Complete protection Specify terms/conditions for discovery Limit scope of discovery Unduly burdensome26(b)(2)(b) 26(g) Effect of Signature on Disclosures and Requests Must make reasonable inquiry and answer to the best ones knowledge Made in good faith, not for improper purpose 26g sanctions for violations can be imposed by court of its own will 26(e) Supplement answers = P/D must include enough info to make answers complete and correct Rule 37a - Compel Discovery Ct must rule on MtD bc might not need discovery P/D must demonstrate need and inability to obtain w/o undue hardship P/D must certify made a good faith attempt to conger If still noncompliant; may order sanctions Rule 37b Sanctions must be just Include orders deeming specified facts to be established Striking or dismissing claims or defenses Entering default judgment Court has broad discretion Bad strategy: dont want to wake up the judge Experts General Can give testimony including opinions not related to their observations (coming in after the fact and reviewing something)

23

Paid by whichever side they are testifying for Must be qualified by voir dire process (exam of qualifications) Problems Expense (reports of $500/hr) Access (conspiracies of silence? Plenty seem to be available) Overuse (too many involved raised cost of litigation) Reliability (hired by parties, so is their testimony defensible? not objective) Quality (do good experts participate?) Types Witness; Non-testifying; Testifying THE PROCESS Filing Service Pleading 26f conference 26a disclosures & 26f plan 16b scheduling conference Pleading - Informal Investigation Required by Rule 11b Timing/ Sequence of Discovery 26(d) A party may not seek discovery until 26(f) meet and confer Parties can delay discovery w/ three buttons Consent to delay Court order 12b motions to dismiss can delay required disclosures Flores v Peru Objection in discovery plan Discovery Conference 26(f) (As soon as practicable or 21 days before scheduling conference) Changes to 26a disclosures Sequencing/ Time limits E-discovery Consent to override FRCP (eg more than 25 interrogatories) Claims/Defenses Settle Required Disclosures 26(a) (14 days after Discovery Conf.) Identify relevant individuals, witnesses/experts, materials/docs that P/D will support THEIR OWN claim Computation of Damages Insurance agreements which may satisfy judgment Must make disclosures based on info reasonably available A party is not excused from making disclosures because it has not fully investigated the case or because it challenges the sufficiency of the another partys disclosures - 26a1e Rule 37(c)(1) self-executing sanction of disclosure not made then cannot use witness/evidence at trial Scheduling Conference -16(b) (21 days after 26f and 7 days after 26a) Judge is present Must have authorized representative present to make stipulations and admissions The purpose 16(a) Expediting disposition, establishing control, improving quality of preparation, facilitate settlement Discretionary Discovery Depositions Rule 28, 30-32 (On anybody) Must be before an officer 28 Usually noticing other parties, by serving time, place, and method of deposition is sufficient Deponent can be compelled to attend under - Rule 45

24

This puts deponent w/in cts jurisdiction Can be compelled to bring documents subpoena duces tecum Oral Rule 30 Do not need leave of ct. to depose Except need leave of the court If parties have not stipulated to the deposition and: If more than 10 depos Already been deposed Seeks deposition too early (26d If depo in prison How to give notice of Deposition - 30(b) Must note objections Can only last 1 day for 7 hours Deponent can review and make changes Written Rule 31 Use in Ct Proceedings Rule 32 All or part of a deposition may be used against a party if: Party was represented Admissiabl under Rules of Evidence To contradict or impeach testimony The witness is not available Dead More than 100 miles away Ill, infirm, in prison Could not procure subpoena Interrogatories - Rule 33 (On parties) Can serve any party w/ up to 25 written questions Must be answered w/in 30 days Can ask for opinions Made under oath Option to produce business records - 33(d) If the answer may be determined by examining, auditing, a business record Document Production Rule 34 (On anybody)

25

Must describe in request with reasonable particularity Comply w/in 30 days Physical/Mental Examinations Rule 35 (On parties) Must be directly relevant to cause of action; see Sacramona where D wanted HIV test for P to factor into life expectancy and future damages but court said no Request for Admissions Rule 36 (On parties) Suggest Sequence Required Disclosures Depose Secondary Witnesses Issue Follow-up document requests and interrogatories Depose Key witnesses Depose the adverse party Issue follow up requests to admit Depose expert witnesses Issue contention interrogatories Issue final, clean up discovery requests Jury Trial and Alternatives Voluntary Dismissal Rule 41 Reasons: fix problems with case, do more investigation, refile, avoid discovery Plaintiff may dismiss an action without a court order by Filing a notice of dismissal before opposing party serves either an answer or a motion for summary judgment. Bright line test: If no answer or motion for SumJ, then dismissal is automatic; it is a notice This is the point of no return tho Ct cant even rule on MtD, but may order the P to pay all or part of the costs of that previous action Be careful: A 12b6 can be converted into a SumJ by 12d if addl materials added. Stipulation of dismissal signed by all parties (For settlement) 2 Dismissal Rule:The dismissal is without prejudice unless previously dismissed any federal or statecourt action or if plaintiff stipulates its with prejudice with a court order On terms that the court considers proper. If D has pleaded a counterclaim before being served with the plaintiffs MtD, the action may be dismissed over the Ds objection only if the counterclaim can remain pending for independent adjudication Involuntary dismissal - if the P fails to prosecute or to comply with these rules or a court order, a D may move to dismiss the action or any claim. (this will be with prejudice unless dismissal is for venue, juris., joinder) Summary Judgment Rule 56 Purpose: Device to dispose of factually insufficient claims/defenses on the merits w/o trial Process: Ct must decide whether the state of the evidence is such that, if the case were tried tomorrow, the non-moving party would have a fair chance of obtaining a verdict. Palucki

26

Effect: Previews/flushes out the evidence, a party may not rest upon the mere allegations or denials of his pleading but his response by affidavits or must set forth specific facts. Slaven v City of Salem Constitutional? Violates the core principles or "substance" of the English common law Test: A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party Fact-finder could only reach one conclusion Although all doubts and reasonable inferences are made in favor of non-movant, scintilla of evidence is insufficient. Be careful: evidence must admissable at trial; hearsay not admissable SumJ is a question of fact not of law. Judge must decide the law even its a close call. SumJ may still be appropriate but judge may need a trial for a better picture Can be filed any time until 30 days after close of discovery 56b Movant Burden: Must identifying each claim or defenseor the part of each claim or defenseon which summary judgment is sought 56a Ct shall grant if: No genuine dispute as to any material fact and entitled to judgment as a matter of law 1) Must cite to particular parts of the record (depositions, affidavits, etc) 2) Show that materials establish the absence of a genuine dispute or show that other side cannot produce admissiable evidence to support fact 56c1b Nonmovent burden: (contesting SumJ) Cite to the record and show materials establish a genuine dispute An adverse party may not rest upon the mere allegations or denials of his pleading Show separate inferences can be drawn Object that the material cited to support a fact cannot be presented in an admissable form as evidence Show the ct by affidavit or declartion that for specific reasons it cant present facts essential to its oppositions 56(d) The ct may defer/deny Allow time to obtain affidavit or take discovery Issue any appropriate order If any party fails to properly support an assertion of fact, the ct may Give opportunity to properly support Consider the fact undisputed Grant summary judgment Cts decision Steps of Analysis (Slaven) What is the substantive law? Negligence? Duty to protect prisoner? What are the material facts? Duty? Should have know of suicidal tendency? Not whether he wore belt

27

What is in the evidence of record? Affidavit of officer Moving party met burden? Cite to record Nonmoving party met burden? Proper disposition Ct can grant on grounds not raised by party or consider SumJ if material facts not genuinely in dispute 56(f) Ct may grant only partial SumJ 56(g) Judgment as a Matter of Law Rule 50 A preliminary question for the judge whether there is an evidence upon which a jury can properly proceed to find a verdict When the evidence is overwhelmingly on one side then the court should give peremptory instruction Has the moving party carried their burden of proof? Proof of the Elements Motion whoever will have burden of proof at trial of claim, typically the plaintiff, or affirmative defense Partial Summary Judgment Rule 56a authorizes sumj on part of a claim/defense Disproof of the Elements must provide undisputed facts negating an essential of the non-moving party Absence of Evidence demonstrate there is no evidence of an essential element 50(a) Directed Verdict 2 functions notify non-moving party they havent carried their burden of proof disposes of the case w/o having to proceed further for no reason Motion must specify the judgment sought and the law and facts that entitle the movant to the judgment 50(a)(2) When? After a party is fully heard After Ps case or After Ds case Shall resolve the issue/grant the motion if: a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue grant the motion if fails to carry burden on essential element 50(b) Renewed Motion for JMOL, a JNOV When? Must make 50(a) motion first before verdict Have 28 days after verdict/entry of judgment to make motion What can judge decide? 50(b) Allow judgment to stand Order a new trial Direct the verdict, contrary to verdict If ct grants JNOV, it must also condly rule on any motion for new trial. (If directed verdict is successfully appealled) - 50(c)

28

If ct denies JNOV, appelle may ask for a new trial - 50(e) Jury Trials Background 7th Amend In suits at common law, rt of jury trial preserve Only applies to federal courts not incorporated via 14th amend Sixth Amend guarantees trial in criminal cases No requirement to try a case before jury Historical Test - SupC 1830 preserves it as it existed in the courts of England FRCP Regime: Merged courts of law and equity Law Subject: Torts, property, etc Remedies: Money, return property Procedures: Oral testimony Equity Subject: Trusts, corporate law, divorces, wills, etc Remedies: Injunctive relief, declaratory accting Procedures: Written evidence, judges Cutbacks on jury trial: adminstrative agencies, size of jury, directed verdics, summary judgment The right to jury trial Traditional legal claims - YES Traditional equitable claims - NO Combination of law/equity Yes, mostly Only under the most imperative circumstances, can the right to a jury trial of legal issues be lost through prior determination of equitable claims. Bacon Theatres Which claims go first? =>Jury should goes first Party must demand trial by jury - Rule 38 Either side MAY demand w/in pleadings or until 14 days after Must do so by filing and serving Can specify issues Waiver Party waives unless its demand is properly served Ct may order a jury trial on any issue for which a jury may have been demanded Rule 39(b) Ct can consolidate or separate trials Rule 42 Consolidate if common questions of law or fact Separate for convenience, avoid prejudice, economze Ct may grant a new trial Rule 59 for any reason for which a new trial has heretofore been granted clearly erroneous, manifest injustice, definite and firm conviction of error

29

3 Reasons Weight of the evidence Errors Process Errors - Error in jury conduct or deliberations improper argument to jury witness misconduct jury misconduct evidentiary errors instructional error New Evidence Remittitur Ct offer to party where it has to choose between reduction of excessive verdict and a new trial Harmless Error Rule 61 Remedies and Post-Judgment Relief from Judgment Rule 60 Granted seldomly for fraud, mistake, default judgments Ct may correct a clerical mistake 60(a) Party may seek relief from final judgment for: 60(b) mistake, surprise, excusable neglect newly discovered evidence that could not have been discovered in time for a 59b fraud (deliberately presenting perjury, paying off jurors, forging documents) judgment is void (default judgments with no notice or personal jurisdiction) satisfied, released, discharged anything else Stay of Proceedings Rule 62 Must wait 14 days after entry of judgment to execute Except interlocutory/final judgmetns of injunctive relief If appeal is taken, may obtain stay with supersedeas bond (d) Seizing Property/Person Rule 64 Every remedy is available that exists UNDER THE LAW OF THE STATE where court is located, provides for seizing person/property. But fed statute governs to the extent it applies Types arrest attachment (seizing of a person's property to secure(ensure) a judgment or to be sold in satisfaction of a judgment) garnishment (order 3rd party, bailee to turn over debtors property) replevin (repossession of wrongfully taken by D, P gives security for and holds the property until the court decides who owns it- returning own property) sequestration (specific property removed from the possessor pending the outcome of a dispute over it) other equivalent remedies

30

Fuentes v Shevin: Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified. It is equally fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner. Post(Later) hearings, damage awards, bond requirements do not adequately protect D Injunctions and Restraining Orders Rule 65 Purpose of injunction is preserve the relative positions of the parties until a trial on the merits can be held A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest Preliminary Injunction may issue a prem. inj. only on notice to party must have a hearing on a motion may issue only if the movant gives security to pay the possible wrongful damages Temporary Restraining Order may issue without notice to party only if specific facts in an affidavit or complaint clearly show immediate and irreparable injury movant certifies in writing any efforts to give notice and the reasons why it should not be required Injunctions Must state reasons for being issued State the terms Describe in detail the act to be restrained Who is bound? Those who receive ACTUAL notice Parties Parties officers, agents, etc Others in active concert with parties a nonparty with notice cannot be held in contempt until shown to be in concert or participation. It was error to enter the injunction against Hazeltine, without having made this determination in a proceeding to which Hazeltine was a party. Execution Rule 69 Money judgment enforced by a writ of execution. Must accord with procedure of state and fed statute Enforcing Judgment for a Specific Act Rule 70 If a judgment requires a party to convey land, deliver deed, perform specific act and failure to comply, the court may order act to be done by another person appointed by the court Declaratory Judgment Rule 57 Typically requested when a party is threatened with a lawsuit but the lawsuit has not yet been filed Declares the rights, duties, or obligations of one or more parties in a dispute. A declaratory judgment is legally binding, but it does not order any action by a party Power created in: 28 USC 2201 Creation of Remedy any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such Judgment Rule 54

31

Judgment = a decree and any order from which an appeal lies. Not = recitals of pleadings, masters report, a record of proceedings Court may direct entry of FINAL judgment for one or more claims/parties if there is no just reason for delay. (These are appealable but claims must be separable) Any order or decision that decides fewer than all claims does not end the action, ie, other claims not appealable (Also, cannot break single claim into piecemeal final judgments, ie, into liability and remedy) Ct may grant relief to which parties are entitled even though they never asked for it 54(c) Appeals FRAP 3/4 Guiding Principles Burden is on aggrieved party to object to an error in the trial court and then to present and argue the error to the appellate court Reviewability: Three Ps Prejudicial A party cannot appeal from a judgment unless aggrieved by it Harmless errors are disregarded that do not affect substantial rts -Rule 61 Preserved Below Must make objection during trial, ie, making a record of it, must be sufficiently clear and timely CtApp may consider things not objected to as abandoned Ex: party cannot appeal trial courts jury instruction unless the party previously objected - Rule 51d Exceptions: Party raises a pure questions of law and refusing to consider would result miscarriage of justice Party didnt have an opportunity to object Interest of substantial justice is at stake Presented Above Must include them in the brief FRAP 28a9A must contain contentions and the reasons What/when can be appealed? (Finality Principle) Final decision OF THE CASE. Ends the litigaton on the merits (ALL CLAIMS) and leaves nothiing for the trial court to do but execute judgment Principle: raise all claims of error in a single appeal usually requires that appeal be postponed till there has been a final decision

32

Policy: No piecemeal, dilatory appeals: a party must ordinarily raise all claims of error in a single appeal folloing final judgment Congestion, Duplication, Delay, Expense Dcourt needs to be able to exercise its own discretion Appellant is capable of vindication on appeal Generally not appealable Discovery order, case management Collateral Order Exceptions (Dcourt is done with the issue) Order must involve issue essentially unrelated to the merits of the main dispute, capable of review without disrupting the main trial A complete resolution of the issue possible A right incapable of vindication on appeal from final judgment An important and unsettled question of controlling law Subject Matter Jurisdiction of Appellate Cts 1) All FINAL decisions of the district courts (28 USC 1291) 2) INTERLOCUTORY orders of the district courts granting/refusing injunctions (28 USC 1292) 3) Discretionary review: if non-appealable order should be appealable (if it involves a controlling question of law where there is substantial debate and will help end the case). (d) Writs of Mandamus If the trial court makes outrageously bad decision, CtApp can order respondent to do his duty No other means of relief Clear/indisputable rt to relief The Appeal Process Notice File within 30 days after final judgment Rule 4(a) Or 30 days w/in the disposition of other motions Ex: P files 59b motion for a new trial, P doesnt have to file appeal until after its disposition File with the district court clerk Contents of the Notice Must designate judgment or order apealling, the parties, name of the ct Initial Filings Record, Statement of Issues, etc Briefs

33

Opening, Response, Reply Joint Appendix Oral Argument Opinion Judgment Reversing, Vacating, Dismissing Standard of Review Std depends on the comparative advantages of each trier: Jury/trial judge have fresher/more candid view of the evidence Trial judge has litigation and trial experience CtApp has more collegial decision making No Deference < De Novo < Clearly Erroneous < Abuse of Discretion < Reasonable Jury < Complete Deference De Novo (Plenary) : For questions of law and mixed questions of law/fact Ex: Whether a Ds acts constitute intentional discrimination Principle: CtApp advantage in deciding the law and promulgating uniformity Mixed questions Difficult judgment calls Clearly Erroneous: For facts found by jduge Ex: Findings prior to trial to rule on motions to dismiss Allow more deference to determinations of credibility If Dcourts account of the evidence is plausible, then the CtApp cannot reverse Principle: CtApp is looking at a cold record and doesnt want to redecide everything Abuse of Discretion: Discretionary Orders Ex: Case management, default judgment, new trial Less deferential for default and new trial Reasonable Jury: Jury Verdicts Ex: appeals to JMOLs Same concept as genuine issue of material fact; evidence has to be so one-sided Claim Preclusion Guiding Principles Purpose: Prevent parties from relitigating claims/issues in another case Fairness One bite at the apple Contradictory judgments Repetitive lawsutis Public Confidence in the court system Efficiency and Economy Repose (peace of mind) Full Faith and Credit Act requires federal cts to give the same preclusive effect to state court judgments as they would have in their home state But everyone derserves their day in court Res judicata (Claim preclusion) prevents parties from re-litigating claims Determine if valid, final judgment
34

Valid: must have full opportunity to decide or been decided on the merits On merits: Verdicts, SumJ, JMOL, DefaultJ, 12b6. Not on the merits if dismissed voluntarily, for IPJ, SMJ, venue, joinder Invalid If no IPJ, SMJ, or improper notice But valid if issue was fully and fairly litigated, except if abuse of authority Finality Trial court entered judgment Identify if the same claim/cause of action Same evidence test if the evidence needed to sustain the second suit would have sustained the first Transactional test the assertion of different kinds of theories of relief still constitutes a single cause of action if a single group of operative facts give rise the the assertion Policy: Encourages combining causes of action; supplemental juris ( 1367) and joinder make it possible Reduces likelihood of conflicting results Promotes fairness Fewer lawsuits Critique: Overinclusive pleading, puts P at risk of omitting Primary Rights Test A separate claim for each right that the defendant has violated Identify if the same parties or in privity Same claimant, same respondent. Designation of P/D doesnt matter Non-party Preclusion P/d is not bound by a judgment in personam in a litigation in which they are not designated as a party or to which he has not made a party by service of process Exceptions (involve either an express or implied legal relationship): Consent to be bound by determination in action b/w others Substantive Legal relationships, eg, Guaranteed Adequate Representation fiduciary, guardian New P had control of the old case Proxy old P has control of the new case

35

Special Statutory Schemes Virtual Representation (rejected bc it would lead to more headaches in applying balancing test) This only applies to class actions Procedural safeguards, ability to opt out Exceptions Consent to be sued again Reserved rt to sue again bc claims were split Couldnt make claim in prior action due to joinder, juris Explicitly permitted by statute Continuing or recurrent harm for injuries that dont manifest themselves till much later cancer, asbestos Some other extraordinary reason Collateral estoppel (issue preclusion) prevents parties from re-litigating issue that they previously litigated in another case Issue in two lawsuits is the same, actually litigated in first, litigated full and fairly (confidence in the outcome, issue was decided, essential to the judgment of first and not gratuitous Much broader exposure to preclusion bc the same issue might arise in the same or different claims in a whole new transaction Trial not necessary to be actually litigated; evidentiary hearing that results in MtD, SumJ, JMOL but no for DefaultJ Issue was actually litigated with full and fair opportunity Rstmt 2nd 1) Identical issues?- (Panniel) issue of causation was same 2) Actually litigated and decided with full and fair opportunity? 3) Valid, final, on merits? *Remember: partial SumJ under 54bare not final judgments bc they may be revised at any time Specific v general verdicts? In gen. verdicts, must infer what issues were decided as a matter of logic Ex: jury/arbitration usually dont explain ruling 4) Determination of the issue was essential to prior judgment? *Beware of gratuitous findings:(Cambria) P sued D; judge ruled both P/D were neg.; then D sued P and was not found neg; he was not precluded bc the finding in 1st trial was not essential. Since Ps contributory neg was dispositive, Ds neg may not have fully considered. 5) Same party/ privity? Exceptions Was it really fully and fairly litigated? No opportunity to appeal in case #1 Question of law? must be really different or been a change in the law. Change in procedures between #1 v #2 (dont trust #1s quality) (Panniel) evidentiary hearing over the foot amputation as proximate cause. Arbitration was skillfully managed and adequate Change in burden of proof (if burden lower, may be able to proceed) Clear, convincing need for new determination Public interest considerations? (Panniel) shouldnt foist on 3rd party Ds the findings in separate arbitration that could undermine arbitration purpose and be unfair to 3rd parties Hurts 3rd parties
36

Further suits not foreseeable (would not fight hard enough on first time) Enough incentive/opportunity in 1st? (Nichols) Not worth hiring a lawyer to claim malpractice; nor could he make the counterclaim in small claims court. Non- Mutual Issue Preclusion (between different parties) Policy: Aura of the gaming table consistency Old adversarial approach: each person a chance to litigate and each case has different character New inquisitorial approach: we think we have the right answer already because we focus on deciding the important facts Defensive - a D seeks to prevent a P from relitigating an issue the P has previously litigated unsuccessfully (Blonder-Tongue) - A sues B over patent validity, loses. A sues C but precluded from deciding validity. Offensive - a P seeks to prevent a D from relitigating an issue (used with more caution, more criticized, less popular) (Parklane Hosiery) 1st, SEC sued D over misrepresentation to shareholders. Then, P sued. P estopped D from raising the issue of false statements. Didnt violate rt to jury since fact was decided in other trial Encourages Plaintiff Shopping pick the most sympathetic and best plaintiff and ride the successful judgment through issue preclusion Judge must use dsicretion to see if: unfair to D, same procedural opportunities available,inconsistent with other judgments. Multi- P Anamoly RR with 50 injured Ps. Ps sue RR for negligence. All other elements decided RR not negligent in p1- p25. But loses p26. Ps can use issue preclusion to win rest of cases This would be an instance of inconsistent judments and probably not able to invoke issue preclusion Arbitration Governed by FAA, 9 USC 1-11 1 Contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce are excluded from the Act's coverage The exemptions in the FAA for employees involved in interstate commerce applies only to workers in transportation. 2 A written provision in a contract to settle by arb, or agree to settle an existing controversy by arb. is valid, irrevocable, and enforceable; save upon such grounds as exist at law or in equity for the revocation of any contract. Emeronye v. Caci International D 12b6d Ps claims bc provision that accorded mandatory arbitration for employment disputes ignorance of its terms will not ordinarily affect the liability of such person under the contract 4 party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement may ask for court order (can be held in contempt and sanctions) 5. Appointment Of Arbitrators Or Umpire
37

 9 Vacating an Arbitration judgment corruption, fraud, partiality, misconduct where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. (no overturning just because it is wrong and got the law wrong) Choice of Law: The Erie Doctrine A. Historical Development: State claims in federal courts Swift Regime Theory: Legis makes law; cts interpret/apply law. state statutes few, common law plentiful; few court reporters, so out-of-staters would have a hard time knowing what the common law of a state was, and courts may have a similarly difficult time State have statutes, local usages and adopted THE common law Idea of natural law: since law was considered a stable and uniform set of knowledge, why should federal courts bow to the interpretations of state courts? FedCt is bound only to apply the statutory law of the state in which the court is located but can form its own interpretation of THE common law Promotes HORIZONTAL UNIFORMITY: from federal court to federal court, law will be substantially the same Disagreements over THE common law Ok: if State ct says, common laws X and Fed ct says, common law says y. OK bc both look at the same sources, ie, the outside law, eg, generally accepted but no official poker rules Erie Regime: Respect state-created rts and obligations Swift Critique: Deprecated the authority of the states and inconsistent rulings in the states; undermines Federalism Illusion of uniformity Fed interpretation didnt tend to converge. There is no "natural law" or "federal common law" Law is a policy statement by a sovreign state and the federal courts cannot infringe on that sovreign. Forum shopping 's who "enjoyed the good fortune of diversity" could get a different decision in federal court than may have anticipated in state court Gave them Gave them tactical choices denied to in-state litigants Unconstl interpretation of RDA (believing it only applied to statutes and local usages was unconstl) New Foundation New statutory interpreation of RDA: Federal courts sitting in diversity must apply the substantive law of the state in which the court is located, and the federal procedural law. Policy Goals Eliminate incentive for forum shopping

38

Inequitable administration of law Constitution No federal general common law bc Congress has not power to declare substantive rules "The grant of diversity J does not confer power on the federal courts to develop substantial law; its power is procedural only." J. Brandeis. Erie Guesses (FedCt applying unclear state law) Look to APPELLATE COURTS, dicta, trends, extrapolate principles, other states similar, restatements, majority rule Certify a question: some states have statutes authorizing fed courts to do so If state law changes, the case will be reversed for retrial State SupC predictive approach If FedCt is convinced that the states highest court would rule otherwise, ie, trend is clearly toward applying a new rule, fed court can rule differently States choice of law rules (Klaxon) State choice-of-law statutes are substantial law, and therefore must be applied by federal courts in diversity. FedCt follows the conflicts law of the states in which they were sitting Ex: Fed court in CO must ask what body of tort law would a CO state court apply if the P had sued there? Place of accident v law of the forum? BUT it encourages the forum shopping for choice of law between states Ex: Jones from NY injured in FL at walmart store Choice of Law Statutes Fl lex loci Fl NY most sig interest NY Ark = Ark If no Klaxon, then one choice of law rule for fed FL lex loci Fl NY lex loci Fl Ark lex loci Fl Determining lex loci? Rstmt : look to the state where the last event neessary to make the actor liable for the alleged tort takes place **Remember: Tranferee Ct must apply transferor Ct law Federal Specific Common Law (US v Standard Oil) There is not a federal general common law but there is a federal specific common law Fed cts cannot rely on state laws because they will be self-serving EX: water disputes. Interstate pollution. Three Options for Novel Questions Defer to Congressional action (uniform) Creating Fed Common Law (uniform) Consider policy implications Borrow state law Adopt state law (non-uniform)

39

Substance v Procedure Key statutes/constitutional laws a. 34 of Federal Judiciary Act The laws of the several states, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply. b. REA 2702 (a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts and courts of appeals. (b) Such rules shall not abridge, enlarge or modify any substantive right. c. Rules of Decision Act The Progession Guaranty Trust v. York: Outcome Determinative Test Develops the "outcome determinative test"; if the state rule would change the outcome of the case, state rule will be applied. Policy concern: forum shopping/ inequitable administration of law Critique: any rule could change the outcome of a case viewed retrospectively, no constl prohibtion on using federal procedural rules Byrd v. Blue Ridge: Countervailing Federal Interest Outcome determinative test must yield to countervailing federal interest which leads us to apply federal rule. Byrd balancing 1) Ascertain the policy of st approach and the policy of the fed approach Ex: SC law requires determination of employee status to judge. Fed law requires jury to do decide 2) Weigh the strength of the competing purposes Ex: SC may be accident of law. Fed is a constl rt. (7th amend) Hanna v. Plumer: Direct conflict Outcome determantive test in light of the twin aims of Erie: no forum shopping; no inequitable administration Take more prospective look at divergence of law. Erie rule has never been invoked to void a Federal Rule. Erie held that no Federal Rule covered the point of law REA mandates FRCP and is supreme law of the land Must test the validity of the FRCP rules Did Congress have the authority to enact or delegate the power, ie, could Cong have written 4d1? Harlan's concurrence: Arguably procedural test is too unclear; State law should govern primary private activity

40

Determine whether the choice of rule would substantially affect those primary decisions respecting human conduct which our constitutional system leaves to state regulation Walker v Armco: Avoiding Direct Conflict P sued D under OK law (summons must be served on D within 60 days to commence action) but P filed in Fed court within SOL and claimed timely under Fed Rule 3 (action is commenced at filing) No conflict of law: No reason why, in the absence of a controlling federal rule, an action based on state law which concededly would be barred in the state courts by the state statute of limitations should proceed through litigation to judgment in federal court solely because of the fortuity that there is diversity of citizenship. Shady Grove: Modifying, enlarging, abridging a state rt? Medical provider brought putative class action against automobile insurer for, inter alia, a violation of New York law in failing to pay statutory interest penalties on overdue payments of insurance benefits NY law- class action cant recover for interest; Fed law- class action can. Substantive/procedural distinction over state law doesnt matter. In sum, it is not the substantive or procedural nature or purpose of the affected state law that matters, but the substantive or procedural nature of the Federal Rule. We have held since Sibbach, and reaffirmed repeatedly, that the validity of a Federal Rule depends entirely upon whether it regulates procedure. If it does, it is authorizreed by 2072 and is valid in all jurisdictions, with respect to all claims, regardless of its incidental effect upon state-created rights. Rules Enabling Act, 28 U.S.C. 2072, not Erie, controls the validity of a Federal Rule of Procedure. A rule may incidentally affect a party's rights, it is valid so long as it regulates only the process for enforcing those rights, and not the rights themselves, the available remedies, or the rules of decision for adjudicating either Dissent: State statute had a substantive purpose to avoid excessive imposition of penalties. Rule 23 can be interpreted more narrowly Does Rule 23 abridge, enlarge, or modify an substantive rt? The test is not whether the rule affects a litigant's substantive rights, since most procedural rules do; what matters is what the rule itself regulates, and if it governs only the manner and the means by which the litigants' rights are enforced, it is valid, but if it alters the rules of decision by which the court will adjudicate those rights, it is not. Dissent: No has the potential to transform a 500 case into a 500000 case. This creates forum shopping This may create forum shopping but not by affecting substantive rts but by making better procedures. This is ok. Ask: Is the Fed rule procedural? Sibbach really regulate procedure 28 USC 2072 (a) and (b) are flip sides the same coin A lot of historical precedents have made seemingly procedural (statute of limitations, burdens, standard of review) as substantive rts
41

Concurrence Stevens The plurality is only ask whether procedural? They think that 2072a and 2072b are saying the same thing. (Is the rule procedural?) We should also ask whether the state rule is substantive? If not, is it intertwined with substance, so as to define the scope of the rt? Ex: Statute of limitations, burden of proof Hanna Application Is the state rule clearly substantive, not arguably procedural? Yes, then follow state law No, did Congress pass any statute? Federal law to this question? Yes, then follow the statute No, did rule come congressly delegated pwr? REA (FRCP)? No, Hanna I (fed practice v state law) Twin Aims test Lead to Forum Shopping? Lead to Inequitable Administration? Byrd Essential Characteristic? Pass= use fed practice; No pass = use st law Yes Hanna II (FRCP v state law) Direct Conflict? Fed rule on point? No, Hanna 1 like Walker v Armco Yes, valid rule, check its 2072 precedural-ness? Did Congress have pwr to delegate? (a)practice/ procedure? (b)abridges, modifies substantive rt?

42