Glannon Outline PART ONE: CHOOSING A PROPER COURT 1) MINIMUM CONTACTS (p. 3) a) Pennoyer v. Neff (U.S.

1877) - cannot bring suit wherever she wants b) Personal jurisdiction for not from forum state based on minimum contacts test i) International Shoe v. Washington (U.S. 1945) HELD that cts of a state may exercise per. jur. over a if she has such minimum contacts w/the forum state that it would be fair to require her to return and defend a lawsuit in that state. (1) Corporation that chooses to conduct activities w/in a state accepts (implicitly) a reciprocal duty to answer for its in-state activities in the local cts (2) International Shoe decision discusses a spectrum of increasing contacts: NOTE: In (a)-(d), only subject to jur. for claims arising out of those minimum contacts (a) No contact w/forum state state has no authority to exercise personal jurisdiction over , unless consents (b) Causal or isolated contacts are insufficient to support jurisdiction (c) Single acts, because of their quality and nature specific in personam jurisdiction (i) McGee v. International Ins. Co. (U.S. 1957) insurer reached into CA by sending an offer there to reinsure a Californian (ii) Gerken this is an early case; really an exception to the rule; Burger King gives you a better idea of where the SCt is now (d) Continuous but limited activity in the forum state specific jurisdiction (jur. over claims arising out of that continuous activity) (i) Burger King Corp. v. Rudewicz (U.S. 1985) ongoing business relationship (e) General in personam jurisdiction very substantial contacts; may be sued for any state claim, even one completely unrelated to his in-state activities (i) Helicopteros Nacionales de Colombia (U.S. 1984) (ii) SCt has not clearly indicated where the line falls between contacts that support general in personam jurisdiction and those that support only specific, minimum contacts jurisdiction (iii)Appropriate when s activities so substantial and continuous that she expects to be subject to suit there on any claim and would suffer no inconvenience from defending there. ii) Rationale: performing certain acts in a state carries w/it predictable consequences, including a duty to return to defend those acts in court c) Guidelines in applying minimum contacts i) Applies to individual as well as corporate s (Kulko v. Superior Court U.S. 1984) ii) Limits in long-arm statutes on personal jurisdiction distinct from constitutional limit imposed by minimum contacts test iii) may have sufficient contacts with a state to support minimum contacts jurisdiction there even though she did not act within the state (Calder v. Jones U.S. 1984 subject to personal jurisdiction in CA for allegedly defamatory article written in FL, since article was to be circulated in CA) -1-

Glannon Outline iv) Minimum contacts analysis focuses on the time when the acted, not the time of the lawsuit (1) Parties who conduct activities in a state accept the risk that those activities give rise to suits and understand that they may have to return to the state where the activity was conducted to defend such suits (2) COMPARE: Minimum contacts analysis applies whether or not is still acting in the state at the time the suit is actually filed. Jurisdiction based on service of process (Burnham v. Superior Ct. of California U.S. 1990) on served w/in a state requires only that be present in the state at the time that the summons and complaint are served upon her need not have any contact with the state at the time of the events giving rise to the suit. d) Purposeful Availment i) To help define the quality and nature that make the contact sufficient to support jurisdiction, many cases rely on the fact that the has purposely avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. Hanson v. Denckla (U.S. 1958) (1) must have made a deliberate choice to relate in some meaningful way to forum state before she can be made to bear the burden of defending there ii) World-Wide Volkswagen v. Woodson (U.S. 1980) concluded that the Audi dealer, Seaway, had not purposely availed itself of the opportunity to conduct activities in OK, although it could foresee that others would take its cars there (1) Had not sold cars there, advertised there, cultivated OK customers, or deliberately focused on OK as a market (2) No direct benefit from OK activities sufficient to require it to submit to jur. there iii) Keeton V. Hustler Magazine, Inc. (U.S. 1984) - purposely availed itself of the opportunity to engage in in-state activities, by distributing magazines w/in the state iv) Stream of Commerce Cases (1) Out-of-state component manufacturer sells components to a manufacturer of a finished product outside the state who then incorporates the component and distributes the finished product into the forum state. (a) Asahi Metal Industry Co. v. Superior Court (U.S. 1987) Ct split (i) OConnors opinion rejected premise that mere awareness that the stream of commerce may sweep goods into the state after they leave the s hands suffices to satisfy purposeful availment; OConnor would require clearer evidence that the seeks to serve the market in a particular state (design, advertise) (ii) Concurring Justices sending goods into the stream of commerce, at least in substantial quantities, constitutes purposeful availment, whether or not the original maker knows that the goods will be sold in a particular store or cultivates customers there maker both foresees and benefits from such sales (iii)Difficult to say where the law is today 1. 5 of the Asahi justices have stepped down 2. some cts continue to apply a fairly broad stream-of-commerce approach based on World-Wide, and take jurisdiction in cases that OConnor would not reach -2-

Glannon Outline 3. other cts adopt OConnors view 4. IS CLEAR that if s contacts satisfy OConnors test, they will support jurisdiction, since the other Asahi opinions require a lesser showing (2) Manufacturer sells finished products to a wholesaler outside the state, the wholesaler then resells to a retailer in the forum state, and the retailer resells to a consumer e) Other Factors in the Jurisdictional Calculus i) Interest of the forum state in providing redress to its citizens ii) Interest of the in obtaining relief in a convenient forum iii) Interest of the states in enforcing their substantive law or policy iv) Extent of inconvenience to the if she is forced to defend away from home v) Notes (1) Burger King suggests that, where the has purposely directed its activities to the forum state, jurisdiction is presumptively reasonable, and she will have to make a compelling case that other considerations make the exercise of jurisdiction unreasonable (2) It is only when deliberate contacts exist between and the forum state that other factors will be weighed in determining whether the exercise of jurisdiction would comport with fair play and substantial justice f) Examples i) Personal jurisdiction rules are -oriented is the price s pay for deliberate efforts to derive benefits from or conduct activities in a state ii) SCt has chosen a narrow view of personal jurisdiction, focusing on the scope of the activity of the seller (), rather than the predictable area of use by the buyer () iii) Jurisdiction must arise out of the s voluntary contacts w/the state, w/2 exceptions (1) Transient jurisdiction permissible to obtain personal jurisdiction over an individual by serving her with the summons in the state where the suit is brought (2) General in personam jurisdiction iv) Car accident is sufficient to support in personam jurisdiction motorists who use the roads of a state should realize that this purposeful activity in the forum subjects other drivers to serious risks, that people may be injured and sue v) World-Wide Volkswagen rejected the rule of foreseeability that the seller of a portable product is subject to nationwide jurisdiction, making the chattel his agent for service of process vi) may reach into the forum state by advertising/soliciting business vii) Personal jurisdiction is NOT based on the most or the best contacts but on minimum contacts viii) may be subject to minimum contacts jurisdiction in more than one state for a claim that arises from a transaction involving contacts with a number of states ix) Jurisdictional doctrine is largely based on a common sense appraisal of what people should expect x) Stream of Commerce Example (1) Original seller does not control subsequent flow of the stream but can foresee (2) Asahi involved a component maker, a third-party , sold to a foreign corporation (3) Single advertisement in a national magazine deliberate contact w/forum state, but totality of circumstances weighs against jurisdiction -3-

Glannon Outline (4) 8 of Asahi justices found agreed once the deliberate contact is found, the Court must consider whether it would be fair and reasonable under all the circumstances to take jurisdiction xi) Minimum contacts jurisdiction is based on the s deliberate decision to act in the forum state for her own purposes xii) Except for general in personam jurisdiction, is only subject to jurisdiction for claims related to the in-state contacts xiii) The may be sued in the state on this claim under the minimum contacts test because it has purposefully conducted activities there, and the claim arises out of this purposeful contact.

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Glannon Outline 2) STATUTORY LIMITS ON PERSONAL JURISDICTION: Long-Arm Statutes (p. 23) NOTE: did not include examples at end of chapter due to slight coverage of topic in class a) Due Process (DP) clause of the fourteenth amendment to the Constitution imposes fundamental limitations on the power of state cts to exercise jurisdiction over s i) State may only assert jurisdiction over s w/significant to relation to forum state (1) Domicile (2) In-state Presence (3) Consent to suit in that state (4) Minimum contacts with the state that give rise to suit ii) DP clause only defines outer bounds of permissible jurisdictional power, and state legislature must actually grant power to its cts to exercise personal jurisdiction (1) Ex. CA has a very expansive provision that is self-adjusting b) Enumerated Act Long-Arm Statutes i) long arm statutes authorize cts to exercise jurisdiction over s based on specific types of contact with the forum state reach out to call nonresident s back into the state to defend lawsuits (1) tend to be liberally granted, as the lawsuits are usually invoked by s who live in the state and prefer to sue at home (2) CAUTION: some long-arm statutes may exceed their constitutional grasp (3) All long-arm statues that base personal jurisdiction on specific enumerated acts require that the claim sued upon arise out of the act itself (International Shoe) ii) Specific categories of jurisdiction conveyed by the long-arm statute are to be interpreted as liberally as the due process clause will allow

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Glannon Outline 3) CHALLENGES TO PERSONAL JURISDICTION (p. 41) a) Cts of a state may not exercise judicial power over a unless that has submitted to the jurisdiction of the courts of that state i) May be subject to jurisdiction under the due process analysis on the basis of (1) Domicile in a state (2) In-state service of process (3) Consent to jurisdiction (4) Continuous or substantial contacts (5) Minimum contacts that give rise to a particular cause of action ii) Section explores options available to a such as (1) Challenge in a court in which the original action is brought (rendering state) (2) Challenge in another state where enforcement of the original judgment is sought b) Challenging Jurisdiction in the Rendering State i) Special appearance (state) (1) allowed to appear before court at the beginning of the action for the sole purpose of challenging its power to exercise personal jurisdiction over her (2) may litigate the jurisdictional question w/o submitting to jurisdiction (3) must take care not to raise any other issue: If she raises any objection or argument that the court can construe as a defense on the merits, the court may conclude that she has waived her jurisdictional objection thereby submits herself to jurisdiction ii) Special appearance (federal) (1) Rule 12(b)(2) - may appear before answering to the merits of the complaint and object to personal jurisdiction (a) may also raise other objections at the same time, w/o waiving the objection to personal jurisdiction (Ex. Could also move to dismiss with 12(b)(6) motion) (b) Rule 12(b) objection to jurisdiction must be raised immediately or lost c) Challenging Jurisdiction in the Enforcing Court i) may ignore the suit entirely risks entry of default judgment ii) Money judgments against out-of-state s usually enforced by taking the judgment to a state where the lives or owns property and then seeking a court order to authorize the sheriff to sell s assets to satisfy the judgment iii) Full Faith and Credit Clause (Article IV, 1) (1) Requires courts of each state to honor the judgments of other states by entering judgments upon them and allowing out-of-state creditors to use ct process to collect (2) EXCEPTION: enforcing ct may always inquire as to whether the rendering state had jurisdiction in the original action and refuse enforcement if it did not (Pennoyer v. Neff U.S. 1877) (a) Collateral attack - challenges the original cts jurisdiction in the enforcement action rather than in the original suit (i) EXCEPTION: may not challenge personal jurisdiction in the enforcement action if she has already done so in the original action (collateral estoppel)

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Glannon Outline 4) DIVERSITY JURISDICTION (p. 55) a) Federal courts hear limited categories of cases (U.S. Constitution, Art. III, 2) i) Jurisdiction over all other sets of cases left to state courts ii) Diversity jurisdiction cases between citizens of different states (1) Subject matter jurisdiction defined by who the parties to the suit are, rather than the subject matter of the underlying dispute (2) Requirements: a diverse , claim for > $75k (3) Rationale: framers fear that out-of-state citizens would suffer prejudice if they were forced to litigate against local citizens in the local state cts iii) Art. III authorizes Congress to create lower cts and to hear types of cases enumerated in Article III, 2 (which authorizes jurisdiction over all diversity cases) iv) 28 U.S.C. 1332 is narrower than Art. III. 2 it includes an amount in controversy requirement v) Strawbridge v. Curtiss (U.S. 1806) all s must be from different states than all s; parties on the same side of the v may be co-citizens vi) State Farm Fire & Casualty (U.S. 1967) - diversity is present as long as some opposing parties to the action are diverse. b) The Meaning of State Citizenship i) Natural persons (1) Domicile the state where a person has taken up residence w/the intent to reside indefinitely (2) Test: domicile w/subjective intent (plus physical presence if new domicile) (3) the person has no definite intent to leave to make a home elsewhere; met as long as the person has no definite plans to move at a particular time or upon the occurrence of a particular event ii) Corporations (1) 28 U.S.C. 1332(c) provides statutory definition of state citizenship of corporations (a) (c)(1) where the principal place of business is located (i) Test: place of operations or bulk of corporate activity (ii) Rationale: same as for diversity jurisdiction where the corp. employs the most people, conducts the most activities, and has the most interaction w/the public the corporation will most likely be perceived as local (iii)nerve center test used to identify citizenship when there are dispersed corporate activities, usually the corporate headquarters or home office (iv) consistently interpreted to mean corporation can ONLY have ONE principal place of business for diversity purposes (b) (c)(1) state in which it is incorporated c) Examples i) Place of suit is irrelevant in diversity analysis. ii) Parties from the same state on both sides of the v violates diversity jurisdiction. iii) Alien person who is a citizen or subject of another country (1) Article III, 2 separately authorizes jurisdiction over cases between citizens of different states and cases between citizens and aliens

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Glannon Outline (2) Even if an alien is domiciled in the U.S., she is still an alien for the purposes of diversity analysis. Mas v. Perry (5th Cir. 1974) iv) A case arising under federal law is a separate basis for federal subject matter jurisdiction v) may choose to bring the case in state ct even if it satisfies diversity requirements (concurrent jurisdiction present except in patent, plant variety, and copyright cases for which Congress has provided federal jurisdiction is exclusive) vi) cannot gain diversity jurisdiction and then later add on home-state s vii) Date for determining diversity is the date of filing suit, not of the incident viii) Intent and residence must coincide at some time to establish a new domicile ix) Domiciled where residence is current unless committed to moving elsewhere d) Amount-in-Controversy Requirement i) Rationale: keep minor cases out of the federal cts ii) Problem: difficult to determine at the outset of a case (1) no objective yardstick for lawyers to use in predicting the amount a jury will assess for pain and suffering, emotional distress, or punitive damages (2) Rule: a s good faith claim for more than the amount required controls, unless it appears to a legal certainty that the claim is really for less (St. Paul Mercury Indemnity Co. v. Red Cab Co. U.S. 1938) (a) Heavily favors (b) Makes sense because Congress has not provided that jurisdiction exists only where the recovers > $75k requirement is that > $75k be in controversy. (c) But is ineffective in keeping many types of diversity cases out of court iii) Problem: how to measure the amount in cases involving multiple claims or parties (1) Aggregation of damages rule: single may aggregate any claims he has against a single to reach the sum but cannot add claims against different s or those of another (2) Exception: common undivided interests (joint owners of property) (3) CAVEAT: traditional aggregation rules may be superceded by supplemental jurisdiction (a) So long as one satisfies the amount-in-controversy requirement, other s may add their claims under supplemental jurisdiction (b) In re Abbott Laboratories (5th Cir. 1995) upholding jurisdiction over a class of members in a class action where a representative satisfied the amount-incontroversy requirement e) Examples i) No piggybacking: B can only sue with A if he could have sued alone in federal ct (1) CAUTION: supplemental jurisdiction may still allow the suit (See caveat above) (2) Split in lower federal cts as to whether 1367 authorizes supplemental jurisdiction over certain claims ii) Rule that s may aggregate claims against a single applies to claims for separate losses, not to demands for the same damages based on different theories. iii) If, looking at the pleaded facts, it appears that the might recover > $75k, the requirement is met. It is only where it is clear to a legal certainty that the definitely will -8-

Glannon Outline not recover that much on the claim he has asserted that the court dismisses for failure to meet the monetary threshold.

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Glannon Outline 5) PERSONAL AND SUBJECT MATTER JURISDICTION COMPARED (p. 73) a) Three basic requirements that limit the proper courts for any lawsuit i) Personal jurisdiction over the ii) Subject matter jurisdiction over the type of case the wants to litigate iii) Chosen forum must be proper venue under the applicable venue statute b) Basic Distinctions i) Personal jurisdiction geographical limitation on the places where a may sue (1) Turns on the relationship between the and the state where suit is brought (2) For federal cts, reach is restricted in most cases to those of the cts of the state ii) Subject matter jurisdiction concerns the cts authority to hear generic types of cases (1) Much more limited for federal cts than for state cts (2) For fed. cts: established either by diversity or presence of a federal question [TEST NOTES 11/15] (a) Louisville and Nashville R.R. v. Motley (U.S. 1911) dismissed for lack of subject matter jurisdiction because the federal question in the case arose as a defense (b) Fed law creates duty and implied or expressed remedy easy question (c) What if state law creates the duty and the remedy but relies on some Federal law? (i) Ex. MA OSHA law allows private individual to enforce those laws (ii) Problem: incorporating federal standard. Fear that state law will change standard. If an important enough federal interest will take it away from the state courts. Look at what Congress has decided within the act. c) Sources of Confusion i) Concurrent Jurisdiction (1) State cts have concurrent jurisdiction over cases within the federal judicial power unless Congress has made federal ct jurisdiction exclusive for a particular type of claim (2) Federal cts do not have concurrent jurisdiction over state law actions (unless the parties are diverse) (3) Fed cts have broad subject matter jurisdiction in that they hear a case between citizens of different states. ii) Domicile (1) Natural person subject to personal jurisdiction in the state where she is domiciled, the last state where she has established residence w/the intent to reside indefinitely (2) State citizenship (for diversity jurisdiction) also uses the domicile concept but asks a different question: whether the s domicile is in the state where the suit is brought (a) Rule: compare domiciles of and to ensure that they differ iii) General jurisdiction (1) Basic state trial courts exercise general jurisdiction: broad subject matter jur. over many types of suits (2) Personal jurisdiction context: general jurisdiction refers to the authority of the states cts to hear any claim against a particular , whether or not it is related to the s instate contacts (general in personam jurisdiction) d) Personal Jurisdiction in the Federal Courts - 10 -

Glannon Outline DP Clause of 14th Amendment DP Clause of 5th Amendment Does not limit the federal cts power to exercise personal jurisdiction Applies only to states Does apply to the federal government Imposes its own limits on the power of federal cts to exercise personal jurisdiction

i) 28 U.S.C. 2361 authorizes nationwide interpleader actions (nationwide jur. in fed cts) (1) Conflicting claims to the same property or fund (2) Mirror image of Rule 19 (indispensable party) ii) Unless such a provision applies, authority for fed cts to serve process outside the state where they sit is restricted by Rule 4(k) (1) Policy: confining the reach of personal jurisdiction in federal ct eliminates ground for forum-shopping on purely procedural considerations e) Examples i) Domicile in the forum state is an adequate basis for asserting personal jurisdiction, even if the claim sued upon did not arise in the state. Milliken v. Meyer (U.S. 1940) (1) Submits himself generally to personal jurisdiction of cts, as a quid for pro for enjoying the benefits and protections of living within the state (2) Reasonable to have to respond for intentionally tortious acts w/in the state (specific in personam jurisdiction) ii) Subject matter jurisdiction analysis focuses on the nature of the case asserted; personal jurisdiction analysis focuses on the relationship between the underlying events and the state iii) When jurisdiction is based on domicile, it is irrelevant that the CofA did not arise there iv) A state court has broad subject matter jurisdiction over cases as a class (not merely over those arising within that state). Ex. Battery occurs in CA, with suit in NV v) CHECK for a federal claim or other basis for federal subject matter jurisdiction. vi) A court that lacks personal jurisdiction may still hear the case if the does not object. (1) waives the objection by failing to raise it. Rule 12 (b)(2), (g), (h) vii) Federal ct must refuse to hear a case if it lacks subject matter jurisdiction. Rule 12 (h)(3) viii) Rule: the general trial cts of each state have subject matter jurisdiction of almost any kind of case, unless it has been exclusively delegated to a specialized state court or to the federal courts (Congress could make federal jurisdiction exclusive if it so desired) ix) Diversity is NOT a substitute for personal jurisdiction. x) Congress may create exclusive federal court jurisdiction over cases w/in the Article III power. ( state cts lack subject matter jurisdiction)

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Glannon Outline 6) REMOVAL (p. 85) a) Traditional rule: chooses the forum, in which to bring the suit, subject to the limitations of personal jurisdiction, subject matter jurisdiction, and venue i) Exception: Removal (1) Federal removal statutes allow the , after has chosen a state court, to secondguess that choice by removing some types of cases from the state ct to a federal ct (2) The case becomes a federal case, and the state court loses jurisdiction over it. (3) Rationale: s as well as s should have the option to choose federal ct for cases within the federal jurisdiction. Federal jurisdiction is intended to protect both parties, and both should have access to it. (4) 1441(a) - removal available ONLY in cases could have commenced in fed ct (a) Rationale: not meant to expand federal jurisdiction, but to make it available to s (b) Federal district ct is the only ct that can host a removed action (5) CAUTION: some cases not removable, even though could have originally brought them in fed ct (a) 1441(b) if any is sued in home state, may not remove on basis of diversity (i) Rationale for exception: has no need to be protected from local prejudice, since is from the forum state. (6) Congress provided for removal in the Judiciary Act of 1789 (7) 1441(e) federal ct is not precluded from hearing a case simply because the state ct lacked jurisdiction over it (Ex. State ct cannot hear patent claim, but it can still be removed to federal ct) (8) Usual federal venue rules do not apply in removed actions. (9) Removal applies to cases, not claims: entire suit is removed (10) Removal is a one-way street: cannot remove to state ct b) Removal Compared to Transfer of Venue i) 28 U.S.C. 1404(a) geographical transfer from one district ct within the federal system to another in a different state or district (1) Displaces the s geographical choice for litigation ii) Removal authorizes transfer from state ct system to federal ct system w/in same state (1) Displaces the s choice of the state ct system in favor of a federal ct w/in the same geographical area iii) Piper Aircraft Co. v. Reyno (U.S. 1981) removed and then transferred, then dismissed for forum non conveniens c) Examples i) Motley Rule: jurisdiction is determined by looking at the s complaint, to determine if he seeks recovery under federal law (federal issue must arise on the face of the well-pleaded complaint) ii) In a multi- case, all s must agree to remove iii) has a permissible form of forum shopping: present a colorable claim against at least one non-diverse OR structure claim to avoid satisfying amount in controversy requirement

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Glannon Outline d) The Procedure for Removal (1446) i) Removal decision is not irrevocable can move in federal ct to remand back to state ct (1) If the basis for the motion is failure to comply w/procedural requirements: 30 days (2) Motion to remand on basis of lack of subject matter jurisdiction can be made at any time prior to final judgment in the case e) Examples i) 1446(a) allows to include in his notice of removal any further allegations that are necessary to demonstrate his right to remove (Ex. that damages may be > $75k) ii) 1446(b) If a case is removable as originally filed, the notice of removal must be filed w/in 30 days after the complaint is served on the . (1) Burden on to find out if the case was removable from the beginning iii) Once the case is removed, the state court loses all power over it, even if it was improperly removed iv) Only the s actually served need join in the removal v) The right to removal is waived by failing to file within 30 days, even if another is subsequently joined. vi) Removal only changes the court in which objections or defenses are presented. (1) Removal does not revive objections that are waived by answering before removal (a) Ex. objection to personal jurisdiction

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Glannon Outline 7) PROPER VENUE IN FEDERAL COURTS (p. 101) NOTE: did not include examples at end of chapter due to slight coverage of topic in class a) Venue rules are meant to further restrict the places where the may choose to bring suit i) Every ct system has venue rules, generally established by statute b) Venue Based on Individual Residence i) 28 U.S.C. 1391(a)(1) and (b)(1) authorize venue in a judicial district where any resides, if they all reside in one state (1) Contrast w/in personam jurisdiction: A person who is subject to personal jurisdiction w/in a state is subject to jurisdiction anywhere in that state (2) Residence for venue purposes is equated w/domicile (only one district) c) Venue Based on Events or Omissions Giving Rise to the Claim i) 1391(a)(2) and (b)(2) venue is proper in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is subject to the action is situated. ii) Purpose: assure a relation between the underlying events that are litigated and the place where the case is tried. d) The Fallback Provisions in Section 1391 i) 1391(a)(3) authorizes venue in a judicial district in which any is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. ii) 1391(b)(3) authorizes venue in a judicial district in which any may be found, if there is no district in which the action may otherwise be brought iii) Only apply if there is no district, anywhere in the U.S., which would be a proper venue under the first two sections e) Three Other Important Points i) Venue, like personal jurisdiction, is considered a privilege of the (1) waives her objection to venue by failing to raise it when she responds to the s complaint (Rule 12(b), (h), (g)) (2) Parties may even agree in advance to a particular venue for suits that may arise between them. (a) Forum selection clauses generally held enforceable in federal cts, even if they lay venue in a district that would not be proper under 1391 (b) Carnival Cruise Lines, Inc. v. Shute (U.S. 1991) upholding forum selection clause in absence of showing of unfairness ii) 1391(a) and (b) are general venue provisions that apply to diversity and other federal cases except as otherwise provided by law (1) Specialized venue provisions govern many types of claims that appear to be covered by 1391(a) and (b) (2) Ex. 1400(b) restricts venue in patent infringement actions iii) Exception for local actions

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Glannon Outline (1) Certain actions relating to interests in land which must be prosecuted in the county or district in which the land is located (2) Transitory action an action that is not a local action and may be brought in any proper venue f) Venue in Cases Involving Corporations i) 1391(c) defines corporate residence as any district in which the corporation is subject to personal jurisdiction (1) Includes place of incorporation, extensive production facilities, minimum contacts

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Glannon Outline 8) CHOOSING A PROPER COURT (p. 119) a) Each of the 3 rings has a different legal source and serves a different purpose Subject matter jurisdiction Personal jurisdiction Venue Art. III, 2 DP (14th amend.) Statutory limit authorizes fed jur over certain types of cases limits power of states to require out-of-state s to defend suits in their courts imposes separate constraints on the place of trial to protect parties from inconvenient litigation

b) Standards that govern each are closely related i) Domicile (1) Test determines state citizenship of individuals for diversity purposes (2) Proper basis for exercising personal jurisdiction over an individual (3) Relevant to venue because most cts have held that an individual resides under the venue statute in the district in which he is domiciled ii) Corporate Citizenship (1) For establishing subject matter jurisdiction of the basis of diversity, corporation is a citizen of the state of its principal place of business, as well as the state in which it is incorporated (2) Personal jurisdiction over corporations: general in personam jurisdiction analysis (substantial and continuous business activities) (3) Venue in suits against corporations will lie in any judicial district in which a resides, if all s reside in the same state (residence defined in 1391(c) for corps. as any judicial district in which its contacts would suffice to support personal jurisdiction) c) Relation of the Claim to the Forum i) One ring may require a relationship that is irrelevant to the other rings ii) Venue in cases against corporations is proper where the corporation is subject to personal jurisdiction (1) BUT false that [(If personal jurisdiction over corp.) venue] (a) Personal jurisdiction based on some other claim would not suffice (b) Venue statues only authorize particular districts within a state where the has contacts some districts w/in the state may still be improper venues d) Examples i) Venue in diversity cases is governed by 1391(a), which authorizes laying venue in the district where the s reside (a)(1) or where a substantial part of the events giving rise to the claim took place (a)(2). ii) General in personam jurisdiction proper if has a substantial, continuous presence is in the state (Ex. training facility) iii) 1404(a) ct can transfer cases for the convenience of parties and witnesses, in the interest of justice, including cases in which the has already satisfied all 3 rings

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Glannon Outline (1) good argument for transferring if the claim did not arise in the state and s activities are completely unrelated to the action before the court iv) EE of a corporation: if negligence occurs in the course of work, it is a minimum contact of the corporation because the contacts of the corporations agents while acting on its behalf are attributed to the corporation v) Transient personal jurisdiction (that obtained by service of process) does NOT apply to corporations vi) General in personam jurisdiction: rationale is that extensive corporate presence w/in the state reduces the inconvenience of litigation and affiliates the corporation with the state in such a substantial way as to make it fair to sue it there for any claim. If that presence exists at the time the suit is brought, the rationale is satisfied. vii) Same 3 rings must also be satisfied if a suit is brought in state court. (1) Broad subject matter jurisdiction (2) Venue analysis depends on that states statute (3) Personal jurisdiction analysis likely to be the same no matter what ct system. viii) Removal Analysis (1) Case must have been w/in the original subject matter jurisdiction of the federal ct (2) Removal barred if any is a citizen of the forum state ix) In any state where the corporation does enough business to support general in personam jurisdiction, the diversity and personal jurisdiction rings will be satisfied. (1) However, venue will still only be proper in those districts in which it does business.

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Glannon Outline

PART TWO: STATE LAW IN FEDERAL COURTS 9) EASY ERIE (p. 135) a) The Rule of Swift v. Tyson i) Rules of Decision Act (1789, RDA) The laws of the several states [except where otherwise provided] shall be regarded as the rules of decision in trials at common law ii) Justice Story interpreted the laws of the several states in the RDA to refer only to the statutes and certain established local usages of the state, not to judicial decisions interpreting gen. principles of common law (1) Federal ct should examine all the common law authorities to ascertain the proper rule (2) Choose the right rule of consideration, rather than follow a rule some other judge deemed to be the right one. b) The Philosophical Underpinning of Swift i) Premise that a court does not make law but merely finds or declares law (1) transcendental body of law (Holmes), brooding omnipresence ii) Problems (1) The law could be different in separate states if the legislature so declared it (2) Black & White Taxicab v. Brown and Yellow Taxicab (U.S. 1928) federal ct had the authority under Swift to reach its own conclusion on the common law issue of whether such exclusive contracts should be enforced. (company had reincorporated in Tennessee to then bring suit in federal district court in Kentuckyforum shopping) c) The Legal Realist Attack on Swift i) Holmes dissent in Black & White Taxicab attacked the basic philosophical premise (1) But there is no such body of law. (2) The law is a set of rules laid down by those w/the power to do so, to govern behavior in a given place in a given time. ii) So, the law can be one thing in one state and another in a second state: different legislatures have exercised their authority iii) Each rule may be right in the sense that it is appropriate for its time and place, but it is not right because it is the one true rule for all time on a particular issue. iv) The legal realist should ask what body has the authority to make the rules governing the issue usually the states. d) The Erie Decision i) Overruled Swift w. Tyson for several reasons (1) Swift failed to achieve the goal of uniformity gradual accumulation of general common law did not induce state judges to recognize the rightness of those decisions (2) Federal practice of making common law had led to grave discrimination in the administration of justice Swift had introduced diversity in favor of out-of-state s (3) Unconstitutional authorized federal judges to make law in areas in which the federal govt had no delegated powers

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Glannon Outline (a) Instead adopted Holmess view that federal ct must look to the body with the authority to make rules in choosing its rules of decision (b) ignoring state common law rules invades rights reserved to the states under the federal system of divided powers ii) Erie Ct (Justice Brandeis) really overruled Justice Storys interpretation of the RDA (that it not include state common law), rather than the RDA itself e) Whats Easy about Erie i) In diversity cases federal courts must apply the law that would be applied by the courts of the state in which they sit their job is to apply state common law (1) State law reigns supreme in most cases because there can be no other law (Hanna v. Plumer U.S. 1965) f) Examples i) Erie held that the RDA require federal cts to apply state law whether judge-made or statutory, in diversity cases, rather than following their own perception of the best rule. (1) Rationale: the grant of jurisdiction over diversity cases in Article III is not a grant of authority to displace state substantive rules of decision, but only to apply those rules in a federal, presumably neutral form. (2) Since only the state has power to make law on general tort issues, the federal ct must apply the states law rather than creating its own law (3) Source of applicable law is the state if it is not within legislative authority (4) Erie policy and constitutional division of powers ii) Supplemental jurisdiction authorizes a federal ct to entertain related state claims that arise from the same facts as the federal claim g) Ascertaining State Law i) To determine state law, federal cts look to the state supreme ct ii) Flexibility: federal judges must predict how the issue before them today would be decided by the state supreme ct, if that ct decided the issue today (Standard) (1) Look at all available data: states lower cts, trends, dicta, legislative developments (2) Commissioner v. Bosch (U.S. 1967) a federal ct construing state law should give proper regard to decisions of trial and intermediate cts, but that its job is to apply the law as announced, or as it would be announced, by the states highest ct. iii) Additional option: Certification (1) Allows a federal ct faced w/a thorny issue to certify the issue to the state supreme ct (2) Problems: lengthy, expensive, creates the anomalous situation of federal cts determining the state supreme cts workload h) Examples i) Role of lower cts: follow the law established by the highest ct of the state, not to speculate (may write an encouraging opinion): mandatory precedent ii) Federal cts: may disregard state supreme ct opinions upon strong evidence (1) Freedom to predict what the law will be opens up a narrow opportunity for diversity s to choose more favorable substantive law despite Erie (2) Result in state ct is likely to be dictated by mandatory precedent, but not in fed ct

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Glannon Outline iii) State judges are not bound by federal judges (even appellate) predictions of what state law will be: but is persuasive authority iv) Federal district cts: normally bound to follow the precedents of their supervisory ct of appeals (1) In diversity cases, they guess at state law: makes sense to follow federal appellate cts decisions because it will be overruled otherwise v) Erie policy v. Finality of Judgments (1) Not all diversity judgments are subject to revision once a state ct later addresses the issue (2) sometimes it is more important that a judgment be stable than correct vi) State trial cts must follow the rule established by the appellate ct for that district vii) Judge Shadur (1) Northern District of Illinois (2) Argues that the federal judges job is to assure that the suit comes out the same way in federal ct that it would in state ct (Abbott Laboratories) Policy is to prevent forum shopping for a better rule of law (3) Most cts follow the Supreme Ct Predictive approach which Shadur calls illusory (a) Few cases do get that far so, this approach will often yield a different approach than that which the parties would obtain in state ct (4) Very difficult to assure absolute uniformity in treatment w/in the two ct systems

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Glannon Outline 10) EERIE ERIE: THE SUBSTANCE/SUBSTANCE DISTINCTION (p. 159) a) Which issues are governed by the command of Erie? i) Clearly requires federal cts to apply state law to issues upon which there is no federal lawmaking power substantive issue ii) What about clearly procedural issues? b) The Emergence of the Problem i) Cities Service Oil Co. v. Dunlap (U.S. 1939) held that the burden of proof issue relates to a substantial right so that Erie mandated application of state law ii) Guaranty Trust Co. v. York (U.S. 1945) issue was whether a federal diversity ct must apply the state SoL to a claim, or whether it was free to apply its own more flexible laches doctrine to the case (1) Held that the state SoL statute must be applied, in order to implement the Erie policy that in diversity cases, the outcome of the litigation in the federal ct should be substantially the same as it would be if tried in State ct: outcome-determinative test (2) Broadest interpretation: York would mandate use of the state rule, although there is federal constitutional authority to establish a different rule would not be much left of the FRCP in diversity cases c) The Pendulum Swings Backa Little i) Byrd v. Blue Ridge Rural Electrical Cooperative, Inc. (U.S. 1958) issue was whether the judge or the jury should determine the s status as an EE of the (1) Reaffirmed holdings of Erie and York (a) Constitutional prong of Erie: fed ct must follow state law in those areas where it has no power to create law (i) Byrd: the issue was a matter a procedure as to which the federal ct was not constitutionally compelled to apply state practice (b) Broad York: fed ct, to assure uniformity of outcome, applies outcomedeterminative state law even on procedural issue as to which there is a federal constitutional authority to apply a separate rule (i) Byrd: broader policy that fed cts should follow state practices even of form and mode (cts follow state law as a matter of policy rather than constitutional command), if ignoring them would substantially affect the outcome of the litigation (2) Held: in deciding whether to follow state law in matters of form and mode, fed ct must consider both the York policy of uniform outcomes and any countervailing federal policies that arise from the federal cts status as an independent judicial system (a) Given the importance of the right to a jury trial in federal cts. Brennan concluded that the Erie policy of maximizing uniformity of outcome should yield to the federal policy of broad availability of jury trial ii) Still appeared after Byrd that state procedural rules might supercede FRCP d) The Rules Rescued: Hanna v. Plumer i) Issue: service of process appropriate under Rule 4(d)(1) but not under MA statute ii) argued that York says: use state law if doing so will affect the outcome (1) Rejected by the Warren ct in favor of a modified outcome-determinative test - 21 -

Glannon Outline (a) Whether a federal procedure is outcome-determinative must be viewed in light of the policies underlying Erie, to prevent forum shopping and inequitable administration of the laws (2) Concluded in this case that the test did not require the fed ct to substitute the state ct rule for its own e) Hanna Part 2: A Distinct Analysis for Federal Rules Conflicts i) FRCP are officially promulgated by the U.S. Supreme Ct under the Rules Enabling Act (REA) and implicitly endorsed by Congress (1) Congress and the SCt have broad constitutional authority to promulgate any rule that is arguably procedural ii) Hanna ct endorsed an entirely different analysis for cases in which an official FRCP conflicts w/state law iii) Point: due to Hannas broad construction of the constitutional and statutory authority to promulgate the Federal Rules, a party who argues that a federal rule is beyond the bounds of federal authority because it is not procedural faces a very steep uphill battle iv) REA: A Rule, though procedural under the first subsection of the REA because it regulates the judicial process, is invalid under the second if it impinges on substantive rights v) Question: what exactly is substantive? f) A Framework for Analysis Conflicts between a Federal Constitutional Provision and State Law Conflicts between a Federal Statute and State Law The Constitution is the supreme law of the land (Art. VI, 2), and its provisions apply even if they conflict w/state law (substantive or procedural) Issue: whether the state law is valid Hannas arguably procedural test If the test is met, the statute must be applied if it conflicts w/state practice because Congress has the authority to enact the statute, and valid federal statutes are the supreme Law of the Land Hanna Part 2 If a FRCP conflicts w/state law, the Rule applies if it is valid. Valid unless they abridge, enlarge, or modify a substantive right under the REA Congress has the constitutional power to authorize the SCt to adopt a federal rule, if the Rule is rationally capable of classification as a procedural regulation (Hanna) Federal judicial practices are invalid if they purport to establish rules of primary behavior which there is no federal

Conflicts between a Federal Rule and State Law

Conflicts between a Federal Judicial Practice and State Law

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Glannon Outline constitutional power to make. Hanna: Diversity ct should still choose the state rule if the difference between it and the federal practice could prove outcome determinative g) Problems in Applying the Hanna Analyses i) When is there a direct conflict between a federal statute or Rule and state law? (1) Some cases avoid displacing state law by claiming there was no conflict. (a) Walker v. Armco Steel Corp. (U.S. 1980) held that FRCP 3, which provides that a suit is commenced by filing, is not intended to govern when the SoL period is tolled (i) Ct then turned to Hanna Part I to determine whether tolling the limitations upon filing rather than upon service was a permissible federal judicial practice concluded that ignoring state rules would lead to inequitable administration of the laws (2) Federal statute: same analysis (a) Remember that a federal statute will not trump a state law unless the two conflict ii) When does a Federal Rule abridge, enlarge, or modify substantive rights? (REA) (1) very seldom will have to have a substantial impact on a state policy unrelated to litigation to be declared invalid (2) heavy presumption of validity for formal rules promulgated by the SCt (3) Burlington Northern R.R. v. Woods (U.S. 1987) held that procedural rules that incidentally affect substantive rights are permissible under the REA iii) What differences are sufficient to lead to inequitable administration of the laws? (1) Discrimination (2) Hanna Part Is modified outcome-determinative test is more narrow than Yorks (3) A tough substance/substance distinction between the analyses of Hanna Part I and II iv) What is the current status of Byrd? (1) Very much alive: many lower federal cts rely on Byrds emphasis on the importance of the federal interests as a factor in resolving conflicts under Hanna Part I. h) Examples i) York Frankfurter concluded that fed cts should follow state rules if the difference between the state and the federal rules could be outcome determinative ii) Byrd fed cts must follow state rules that define the rights and obligations of the parties (substantive rights) which the federal govt has no authority to create (1) Fed ct should generally defer to state rules in matters of form and mode (procedure) if they are likely to be outcome determinative (for uniformity) (a) Unless countervailing considerations require application of a federal rule (2) Problem: does not specify what federal policies will outweigh the Erie/York policy of assuring that diversity cases come out the same in state ct and federal ct (a) Ex. Right to jury trial (yes) iii) State Rule (or statute) v. FRCP Hanna Part 2 (arguably procedural test) (1) FRCP applies unless invalid (a) Unless abridges, enlarges, or modifies substantive rights (murky) - 23 -

Glannon Outline (2) Heavy presumption of validity accorded to FRCP (guide procedure, too) (3) Rationale: fed govt has authority to regulate procedure in federal cts, including matters can rationally be classified as procedural (a) Ex. FRCP 15: an amendment will relate back if it would relate back under state law iv) State Rule (or statute or practice) v. Federal Judicial Practice Hanna Part 1 (1) Question is whether the twin aims of Erie would be compromised by allowing the federal cts to ignore the state statute in favor of their usual practice (fortuity) (a) Forum shopping (b) inequitable administration of the laws v) State Rule (or statute) v. Federal Law Hanna Part 1 (see above) (1) In all these cases, it is the nature of the federal provision, not the competing state provision, that determines the analysis. (2) Issue is when federal law is valid and applies in federal ct (a) Applicable if it governs the litigation and valid if it passes the Hanna Part 1 test (3) Federal law will apply despite a conflicting state provision because it is the supreme law of the land (a) Must be constitutional vi) State Rule (or statute) v. Federal Constitutional Provision Hanna Part 2 (see above) vii) Be aware that the type and measure of damages recoverable is usually governed by state law (no federal authority)

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Glannon Outline 11) ERIE AND STATE CHOICE OF LAW: (p. 183) a) The Problem of Choosing the Proper State Law i) Choice of law the need to choose a body of substantive law to apply to the dispute before the court ii) Rule: the court should apply its own rule, the law of the state where the suit is brought (1) Does not apply in all cases (a) Would obviously encourage s to forum shop (b) Policy: unwise to decide a controversy under a substantive rule completely foreign to the events in dispute (i) Factors: substantial connections, expectations, state interest (ii) If there is a strong connection to another state, many cts would choose to apply the substantive law of the other state (iii)Result may be that a ct in one state hears the suit but chooses to apply the substantive law of another state b) Approaches to Choice of Law when to choose the law of another state instead i) Modern approach weigh the interests of each affected state in applying its law to the case ii) Apply the law of the state with the most significant relationship to the case in light of policy considerations (1) expectations of the parties (2) the policy interests of the states with connections to the case, (3) uniformity in enforcement iii) The selection of the applicable law will depend on the choice of law approach of the court in which the suit is filed. c) Federal Courts Choosing State Law i) Choice not only of state cts in different states, but also federal cts in each of those states ii) Klaxon v. Stentor Manufacturing Co. (U.S. 1941) held that the policy underlying Erie mandates the application of the forum states choice of law rules as well as its substantive law (1) Federal ct must do whatever the state ct within that state would do (2) Rationale: Erie teaches that s should not obtain an advantage due to the accident of diversity that they would not have in state court fed ct must do whatever state ct would do (3) Counterargument: Klaxon impedes development of conflicts of law and promotes forum shopping (4) Klaxon has been reaffirmed in subsequent SCt opinions iii) Vertical uniformity: between state and federal cts w/in each state iv) Horizontal uniformity destroyed: among the federal cts in different states v) Erie has not ended forum shopping for a more favorable substantive law it has just changed the rules of the game (1) s may get the same result by choosing between federal cts in different states or between state courts in different states d) Examples - 25 -

Glannon Outline i) When applying another states law, a state ct cannot make law for the other state and has to engage in an Erie-type analysis of what the other states law is on the point ii) Recent approaches are based on judgmental balancing of interests (1) Ambiguous and involve a balancing of policy considerations (2) More difficult to predict which states law a ct will use (slushy) (3) can only try to forum shop iii) Factors that might lead a state to apply its own law even though the incident took place in another state (1) Residence of the parities at the time of the accident (2) Interests promoted in the application of a particular tort principle (3) Place of the negligence that led to the accident (4) Place in which the effect of the injuries is felt iv) Strategic Considerations (1) Locations of witnesses (2) Convenience of (3) Inconvenient for v) A check on forum shopping: just because a ct decides to apply the law of another state, it may not apply the law of the s state of choice vi) If a states law is in the process of change, the federal ct may have more flexibility to anticipate those changes than the state trial ct would. vii) Must a ct, when choosing to apply the law of another state, apply the whole law of the other state, including matters of procedure? (1) No, judges would have to learn too many procedural systems (insupportable) (2) To avoid this, the substance/procedure distinction has emerged in conflicts of law doctrine as under Erie. viii) Erie mandates application of state law in diversity cases, NOT wholesale abandonment of federal procedure (1) Where a valid Federal Rule covers an issue, it may be applied in a federal diversity case despite contrary procedure in the state ct. e) The Impact of Transfer i) Practical reason: site of the accident and many witnesses and documents in a state ii) What law to apply if the case is bounced to a transferee court: a change of venue does not effect a change of law (1) Honor the s forum-shopping choice rather than allow s to displace it through transfer (2) Determine what the choice of law rules for the transferor state are, and what states law the courts of the transferor state would have chosen under that choice of law rule (a) Then, under Erie, determine what the substantive law of that state is and apply it f) Examples i) A state ct has no authority to send a case to another states ct (autonomous ct systems) (1) Different in federal ct because all federal cts are branches of same federal ct system (2) Option: dismiss under forum non conveniens (a) Ct may dismiss a case where the interests of justice indicate that it should be litigated elsewhere (b) Rationale: sometimes cases that are properly filed belong somewhere else - 26 -

Glannon Outline ii) may engage in issue shopping (1) Chancy because a ct may deny a motion

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Glannon Outline

PART THREE: THE SCOPE OF THE ACTION 12) THE BASIC RULES OF JOINDER (p. 205) a) Traditional rule: the is the master of his claim b) Joinder of Parties i) Rule 20(a) governs initial joinder of parties and authorizes s to sue together: (1) Criteria: (a) They assert claims arising out of the same transaction or occurrence, and (b) Their claims against the or s will involve a common question of law or fact (2) Does not require parties to be joined when (a) and (b) are met (a) Rationale: procedural difficulties such as differences of opinion as to tactical choices, jurisdictional problems hampering efficiency (b) Compare to Rule 19: requires joinder of certain persons under limited circumstances (i) 19(a) necessary party balancing test (ii) 19(b) indispensable party same, but consider whether the suit will be dismissed if this party is not included (3) Allows joinder if relief is sought against the s jointly, severally or in the alternative ii) Rule 20 allows to sue multiple s in a single action if the same criteria are met iii) Rationale: efficient to litigate those same issues once in a combined action, rather than repeatedly in separate suits AND avoids the possibility of inconsistent judgments on the same issue (reflects unfavorably on the judicial system) c) Compare Rule 20 to Rule 18 and Rule 13 i) Rules 13 and 18 authorize parties, once they are properly joined in a law suit, to assert additional claims against opposing parties ii) Rule 13 authorizes counterclaims defending party in a suit asserts a claim back against the party who has claimed against him (1) Rule 13(a) compulsory counterclaim if the defending partys counterclaim arises from the same transaction or occurrence as the claim against him, he shall (must) assert it in the original action or lose it (Ex. same contract) (a) Rationale: forces parties who are already adversaries to litigate all claims arising from the same set of facts in a single action (2) Rule 13(b) permissive counterclaim involves events completely unrelated to the original claim (a) Cannot be justified on efficiency grounds. Ct may order separate trial (Rule 42(b)) (b) Rationale: ought to at least have the opportunity to settle disputes w/the in a single action. Fairness: gives s same opportunities has under Rule 18(a). (3) Rule 13(g) cross-claims arise out of the same transaction or occurrence as the main claim and is asserted by one party against a co-party (one against another ) (a) Promotes efficiency and consistency because the same underlying facts will be litigated on the main claim and the cross-claim (b) Optional - 28 -

Glannon Outline (4) Rule 13(h) authorized to bring in an additional party on a counterclaim, so long as requirements of Rule 20(a) are met (5) Combination of Rules 13(a) and (b) authorize any defending party to assert a counterclaim against a party who has claimed against him iii) Rule 18(a) broad and permissive: a party seeking relief from an opposing party may join with his original claim any additional claims he has against that opposing party (1) Authorizes a pleader to assert as many claims as he has against an opponent (2) Applies to any party seeking relief against another party (3) Can add totally unrelated claims once a proper claim has been asserted (4) Rationale: once the parties become proper adversaries in a lawsuit they ought at least to have the opportunity to resolve all their differences in one suit d) Examples i) Rule 20(a) does not require that the s seek recovery for exactly the same injuries or on a joint interest [only requires (a) and (b) above)] (1) Policy: efficiency and consistency goals (save time for parties, witnesses, and ct) ii) Rule 20(a) does not require that the s seek recovery on the same theory iii) CAUTION w/Rule 18(a): the rules of res judicata will force a to join all his claims against a in a single action if the claims arise out of the same transaction or occurrence iv) Counterclaim rules are written in general language to apply to all defending parties, not just original s e) Joinder rules do not provide a basis for subject matter jurisdiction they only govern who may properly be made parties if the ct has jurisdiction.

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Glannon Outline 13) JOINDER OF PARTIES UNDER RULE 14 (p. 221) a) Rule 14 permissive: gives a a limited right to implead (to bring into the suit) new parties against whom she has claims to the main action i) Standard: Rule 14(a) - bring a person not yet a party to the suit who may be liable to the for all or part of any recovery the obtains on the main claim ii) Rule 14(a) also authorizes impleaded party to assert a related claim back against the original (must arise out of same transaction or occurrence) iii) Tort cases: contribution judgment that the third party is liable to pay the main part of the damages she is ordered to pay the iv) Claims for indemnity against an insurer v) Distinguish from situations in which the contends that another person is liable directly to the but not to her (1) Does not allow s to suggest new targets for the , but rather allows s to bring in targets of their own if they may be able to pass on liability to the impleaded party vi) The liability of third-party s depends on the outcome of the main claim b) Impleader claim is treated like an original suit for pleading, service, and other purposes c) Rule 14 - may implead a third party within 10 days of answering the complaint, w/o obtaining leave of ct i) But always w/in the cts discretion to refuse to entertain the impleader claim ii) Factors suggesting denial of impleader: undue delay, complication of issues, potential prejudice to from a sympathetic third party iii) Third party citizenship irrelevant to diversity and venue analysis, but ct must still have subject matter jurisdiction over the impleader claim itself d) Examples i) Rule 14 cannot be used to foist alternate s on the ii) may implead multiple third-party s for joint or several liability: no reason why a should have to limit his impleader claims to one third party when several may be liable to him iii) Third-party defendant liability must be derivative of the main suit iv) Must always meet the requirements of personal jurisdiction: due process rights would clearly be abridged if impleaded party forced to defend in a forum with which he lacks contracts as if he were forced into such a ct as the original v) Rule 14(b) - , now a on a counterclaim, may implead a party who may be liable to her for all or part of a judgment the counterclaiming obtains from her

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Glannon Outline 14) SUPPLEMENTAL JURISDICTION (p. 233) a) Pendent Jurisdiction i) asserts a jurisdictionally proper claim against a nondiverse party and added on a related state law claim ii) United States Mine Workers v. Gibbs (U.S. 1966) SCt established guidelines for the exercise of jurisdiction over pendent claims (1) Held that the federal ct had pendant jurisdiction over the state law claim because it was joined with the federal labor law claim (2) Rationale: Article III grants jurisdiction over entire cases, not just over particular claims or issues constitutional power to hear claims arising out of the same common nucleus of operative facts (a) Consistent w/the intent of the framers, who wrote of cases and controversies iii) Did not require federal cts to hear pendent claims (1) Second step in Gibbs analysis: discretionary decision by the ct (a) Does it make sense to exercise jurisdiction based on the following factors? (i) Does the state law claim predominate? (ii) Require decision on novel issues of state law? (iii)Whether hearing the claims together might confuse the jury (iv)Whether the federal issues were resolved early in the case b) Ancillary Jurisdiction i) Related claims asserted by s or other additional parties after the initial complaint ii) Moore v. New York Cotton Exchange (1926) counterclaim was compulsory because it arose out of the same accident as the main claim, but the ct lacked independent jurisdiction over it because it was based on state law and did not satisfy the amount-in-controversy requirement (1) close connection between the original, jurisdictionally proper claim and the added claim making them part of a single constitutional case (2) Standard: logical relationship to the main claim c) Two Other Important Background Cases i) Owen Equipment & Erection Co. v. Kroger (U.S. 1978) Held that extending ancillary jurisdiction to the claim would inconsistent with the long-standing interpretation of 1332, requiring complete diversity between the parties (1) Principle: federal jurisdiction is not only limited by the Constitution but also must be conveyed to the federal district cts by Congress in a jurisdictional statute ii) Finley v. United States (U.S. 1989) case of pendent party jurisdiction (1) Same principle as Owen (2) Held that the district ct had no jurisdiction over the pendent part claims iii) HISTORY!!! Now 1367 governs these issues d) 1367 provides a statutory basis for supplemental jurisdiction in federal cts i) If the brings a proper federal claim or diversity claim, so that the federal ct has original jurisdiction, the ct may hear all the claims that are part of the same case or controversy under Article III [includes counterclaims, cross-claims, etc.]

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Glannon Outline ii) Adopts the same standard as Gibbs: cases that arise out of the same nucleus of operative facts as the proper federal claim iii) Congress responded to Finley by providing the necessary statutory authority to hear the related claims e) Limits on Supplemental Jurisdiction LOOPHOLE NOTES 11/15 i) 1367(a) grants supplemental jurisdiction in very broad terms (1) requires that the ct have original jurisdiction over some claim before supplemental jurisdiction can be invoked to add other claims ii) 1367(b) preserves limits on ancillary jurisdiction (1) supplemental jur. shall not extend to certain claims by s in diversity cases (2) tries to catalogue various joinder possibilities under the Rules that would allow the to circumvent the limits of the Strawbridge rule (suggested by Kroger) (a) bars claims by s against impleaded parties (Rule 14) (b) inconsistent w/jurisdictional requirements of 1322 that requires each to meet the amount-in-controversy requirement independently iii) 1367(c) codifies the second holding of Gibbs: gives the trial ct discretion to decline to exercise pendent jurisdiction f) Supplemental Jurisdiction Requires a Three-part Analysis First, determine whether there is a constitutional power under Article III, 2, to hear the supplemental claim. Gibbs held that the constitutional power to hear the related claim exists if (1) there is a proper claim within the jurisdiction of the federal ct, and (2) the related claim arises from the same nucleus of operative facts. Second, ct must determine whether there is 1367(a) grants jurisdiction over all related a statutory grant of jurisdiction over the claims that are part of the same case related claim. (constitutional test). 1367(b) limits certain claims in diversity cases which would contradict the limitations in 1332 Third, ct has discretion to hear the related 1367(c) codified second half of the Gibbs claims based on factors in 1367(c). analysis g) Examples i) The importance of supplemental jurisdiction (1) W/o it, would have a strong incentive to sue in state ct in order to have his entire case resolved in one proceeding. (2) Many federal law cases would be heard in state rather than federal cts, even though a primary purpose of federal cts is to expound and develop federal law. (3) , supplemental jurisdiction assures that s who prefer the federal forum will have access to it. ii) Gibbs: jurisdictionally insufficient claims are part of the same case if they arise out of the same nucleus of operative facts as the federal claim. iii) CHECK for independent basis for subject matter jurisdiction and then for supplemental jurisdiction - 32 -

Glannon Outline iv) Impleader claims must arise out of the same set of facts as the main claim to satisfy the requirements of Rule 14 they will meet the common nucleus test of Gibbs and the statutory test of 1367(a) v) Supplemental jurisdiction extends to claims by or against other parties, even if the has not asserted any jurisdictionally sufficient claim against the added party.

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Glannon Outline 15) JURISDICTION vs. JOINDER (p. 255) a) A suit is proper only if both the joinder rules and the jurisdictional requirements are met i) No party may assert a claim against another party in the federal cts unless one of the joinder rulesRules 13, 14, 18, 20, or 24authorizes assertion of that claim ii) The fact that the rules authorize joinder is not sufficient to assure that the federal ct may hear the claim. iii) Power and permission come from constitutional doctrine (1) All federal jurisdiction must be found in Article III (2) FRCP promulgated by the Supreme Court (a) May not use its rule-making power to expand their jurisdiction iv) The good sense of joinder rules may be thwarted by the limitations on federal subject matter jurisdiction (absolutes) b) Examples i) Rule 20(a) governs joinder of multiple s and only authorizes joinder if the s claims against both s arise out of the same transaction or occurrence (1) Or, Rule 21: ct may drop a , eliminating the joinder problem, and then the may proceed with a separate independent suit ii) Rule 18 is the ultimate in permissiveness iii) Classic pendent claim a jurisdictionally insufficient claim that arises from the same nucleus of operative facts as the proper federal claim (Gibbs) (1) Now authorized by 1367(a) ct can hear claims that are part of the same case or controversy as the jurisdictionally sufficient claim iv) Avoiding destruction of diversity: watch for a separate basis for jurisdiction over one of the parties (then diversity is not destroyed) v) Permissive counterclaims will always pass the Gibbs test. vi) Rule 13(g) cross-claims should always satisfy the test for supplemental jurisdiction if they arise from the same set of events as the main claim (1) Exception: 1367(b) sometimes deny supplemental jurisdiction to cross-claims brought by s vii) Personal jurisdiction and venue are always satisfied by s domiciled in the state. viii) Claims must be analyzed individually as to jurisdictional power. (1) CHECK for independent subject matter and supplemental jurisdiction ix) 1367(a) expressly states that supplemental jurisdiction includes claims that involve the joinder or intervention of additional parties. (1) ct may hear counterclaims even if complete diversity is lacking (2) bias by barring claims by s that are inconsistent w/complete diversity, but allowing similar claims by defending parties x) Intervention (1) Rule 24(b) allows a party to seek intervention if her claim shares a question of fact or law with the main claim (a) Exception: 1367(b) bars supplemental jurisdiction over claims by persons seeking to intervene as s under Rule 24when exercising supplemental jurisdiction that would be inconsistent with the jurisdictional requirements of 1332. (i) Would allow one citizen from a state to sue another in federal ct (evading the complete diversity requirement of Strawbridge) - 34 -

Glannon Outline (ii) Rationale: supplemental jurisdiction should not provide a means of evading the complete diversity requirement

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Glannon Outline

PART FOUR: STEPS IN THE LITIGATION PROCESS 16) SERVICE OF PROCESS IN THE FEDERAL COURTS (p. 267) a) Due process of law under the fourteenth amendment i) Guarantees parties the basic right to notice of a cts intention to adjudicate their rights and an opportunity for those parties to be heard ii) In civil suits, this requirement of notice is satisfied by service of process (1) Service of the initial notice to the of the filing of a lawsuit against him (2) Notifies the that he has been sued and informs him that the ct intends to proceed to adjudicate his rights iii) Governed by the elaborate provisions in Rule 4 b) The Relation of Service of Process to Personal Jurisdiction i) 12(b)(5) motion (1) Motion to dismiss for insufficiency of service of process (2) Attacks the adequacy of the method used by the to give the notice of the action ii) 12(b)(2) motion (1) Challenges the ct to exercise personal jurisdiction over the c) Examples i) Burnham service of process in the state confers jurisdiction over an individual (1) Does not suggest that a corporation is subject to personal jurisdiction in a state simply because an officer is served while there for an unrelated purpose ii) Rule 60(b) Relief from judgment (1) Gives a judge discretionary power to undo the finality of a judgment for various reasons, including inadvertence, surprise, or excusable neglect (Rule 60(b)(1)) and any other reason justifying relief from judgment (Rule 60(b)(2)) (2) Rationale: allow the ct to relieve a party from the effect of a judgmenteven a valid judgmentwhen fairness supports reopening the case (Ex. lack of actual notice) (3) Judge might refuse for other policy reasons (Ex. upsetting expectations of parties) iii) Most cts have held that a federal ct can exercise jurisdiction under the Fifth Amendment over a who has contacts anywhere in the United States

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Glannon Outline 17) THE MOTION TO DISMISS (p. 287) a) s Options in Responding to s Complaint i) Filing an answer (Rule 12(a)) ii) If has preliminary objections to the suit, avoid answering immediately by filing a motion to dismiss the complaint for failure to state a claim upon which relief can be granted) (Rule 12(b)(6)) (1) Asserts that even if the were to prove all the allegations in the complaint, she would still not be entitled to any relief (2) Alternative to answering the complaint (3) Optional (a) s not required to use it to raise the defenses listed in Rule 12(b), as each of those may be raised in the answer instead (4) Unlike other pre-answer defenses because it challenges the substantive merits of the complaint (5) will almost always be given at least one opportunity to amend the complaint to state a compensable claim (6) Rationale: short-circuit the litigation process in cases in which the has a valid defense, evident from the outset iii) Other pre-answer defenses (1) Fatal Defenses will lead to dismissal if upheld by the ct (a) Rule 12(b)(1) the ct lacks subject matter jurisdiction (b) Rule 12(b)(3) ct is not a proper venue (c) Rule 12(b)(2) ct lacks personal jurisdiction over the (2) Other defenses raise defects in the procedure by which initiated the action (a) Rule 12(b)(5) defense of insufficiency of service of process (b) Rule 12(b)(7) defense of failure to join an indispensable party (c) The two above are generally curable defects that will not require dismissal but must be remedied before the case can proceed b) Waiver of Defenses Under Rule 12 i) Consequences of not raising Rule 12 defenses governed by 12(g) and (h) ii) Disfavored Defenses (1) Will be waived for all time if not raised in the first response to the complaint (2) Rationale: if suffers prejudice from these preliminary defects, she should become aware of it when the complaint is served on her. Also avoids wasted judicial resources. (3) Personal jurisdiction 12(b)(2), venue 12(b)(3), the form of the process, or the method of service of process 12(b)(5) c) Policy of the exception to waiver under Rule 12(b)(6) (1) Fundamental challenge to the merits of the s claim (2) If has committed no legal wrong, should not be held to waive this defense merely because she failed to raise it at the beginning of the suit (3) 4 Disfavored Defenses are distinguishable since they are all procedural objections (4) May not always be easy to determine whether a complaint fails to state a claim at the outset - 37 -

Glannon Outline d) Examples i) Rule 12(g) provides that a who chooses to make a pre-answer motion must include in that motion all of the 12(b) (and (e)) defenses she has at the time (1) Any of the defenses that are omitted from the motion are waived w/the exception of those preserved by Rule 12(h)(2) and (3) (2) Rationale: prevents from nickel and diming the be repeated motions to dismiss on different grounds (3) Rule 12(h)(1) provides that these defenses are waived if (a) (a) the makes a pre-answer motion and leaves them out, or (b) (b) answers and leaves them out ii) Rule 12(g) requires consolidation of 12(e) motions (for a more definite statement) iii) Ambiguity in motion to dismiss for lack of subject matter jurisdiction (1) Language of Rule 12(g) would support that motion is barred if not raised in first response (because it is not an exception listed in 12(h)(2)), but (2) Rule 12(h)(3) provides that the exception to subject matter jurisdiction may be raised anytime iv) Even if unable to determine whether venue is proper, rules require immediate assertion of the defense (1) Possible solution: move for extension of time to file a response (Rule 6(b)) v) Tactical advantages of moving to dismiss rather than answering (1) may avoid, temporarily, the s allegations (2) Answer requires response to substantive allegations in the complaint (a) Rule 8(b) - must make admissions or denials (b) Rule 8(c) - must raise any affirmative defenses (c) Rule 13 must assert any counterclaims

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Glannon Outline 18) THE SCOPE OF DISCOVERY (p. 301) NOTE: did not include examples at end of chapter due to slight coverage of topic in class a) Demise of Pleading and Rise of Discovery i) Current pleading practice the complaint and the answer provide a tentative view of the parties positions, based on preliminary research and investigation ii) Once issues more clear, full development of the parties positions evolves through discovery (1) Court-mandated production of information from other parties and non-party witnesses (2) Parties may usually amend pleadings to conform to their evolving understanding of the dispute (3) Discovery is conducted by the parties, not by the court; judge just resolves disputes b) Major Tools of Discovery (powerful) i) Rule 33 interrogatories ii) Rule 34 requests for production of documents iii) Rule 30 oral depositions iv) Rule 26(a) automatic disclosure c) The Basic Test of Relevance i) Rules of discovery are powerful because they compel production of evidence and because of the broad scope of the evidence that must be produced. ii) Scope of discovery is governed by Rule 26(b)(1) (1) Virtually any evidence arguably relevant to the issues in the case, or to matters that might become issues in the case, may be demanded (2) Standard: so broad that it creates a presumption that anything related to the case may be sought in discovery (a) Burden on a party opposing the production of evidence to explain why it does not satisfy the standard (3) Information is NOT automatically subject to production if it meets the broad production standard discoverable unless otherwise limited by the court (a) Motion for protective order (Rule 26(c)) empowers to ct to limit discovery to protect a party or person form annoyance, embarrassment, oppression or undue burden or expense. (b) Ct has discretion to limit or bar information w/in the scope of Rule 26(b)(1) after considering (i) The requesting partys need for the info. (ii) The burden and expense of producing it (iii)The potential for revealing intimate facts that should remain private (iv)The potential for use of discovery to annoy or intimidate an opponent (v) The admissibility of evidence d) Privilege Objections to Discovery i) Important exceptions to discovery exist ii) Rule 26(b)(1) itself limits discovery to information that is not privileged

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Glannon Outline (1) Privilege some policy favoring confidentiality is judged to be more compelling than access to the evidence iii) Attorney-client privilege bars inquiry into communications between a client and her counsel in the course of legal representation (1) Rationale: effective representation requires full and frank communication between lawyer and client. Upjohn v. United States (U.S. 1981) (2) Communication will be inhibited if opposing counsel would listen in on these communications by asking about them at trial or in discovery iv) Other privileges recognized by cts: priest and penitent, doc and patient, psychotherapist and patient, H/W v) Privileges may be created by state or federal common law or statute or in the U.S. Constitution. vi) Point: recognize why cts might choose to protect information despite its relevance, and that where they so, the information need not be disclosed in discovery. e) Work Product Objections i) Bars production of certain materials developed in anticipation of litigation ii) Hickman v. Taylor (U.S. 1947) - s counsel in a wrongful death case sought discovery of defense counsels notes of interviews with various witnesses to the tugboat sinking that caused death (1) Also requested, through interrogatories, the substance of other interviews that the s lawyer had conducted but had not written down wanted Fortenbaugh to write out his memory of the interviews in response to the interrogatories (2) Argued that allowing this discovery would improperly interfere w/ the privacy of his trial preparation (3) When the case was decided, Rule 26 provided no explicit exception for mental impressions contained in the files and minds of the attorney (a) Troubling: very difficult to separate factual information in trial preparation materials from the thought processes of the lawyer who developed them (b) Concern that allowing discovery of trial preparation materials would allow lawyers to ride on their adversarys coattails in preparing for trial (c) Concern about lawyers ending up as witnesses in their own cases if the statements they produced contradicted other testimony from the same witness (4) Denied production of the requested information (5) Held that written statements given by witnesses might be subject to discovery if the party seeking discovery made a sufficient showing of need for the material and inability to obtain it through other means. Ct also expressed considerable doubt that an attorneys mental impressions or personal notes on a witness interview would ever be subject to discovery. iii) Rule 26(b)(3) codified work product doctrine (1) Standard: documents and things prepared in anticipation of litigation can only be obtained in discovery if the requesting party demonstrates that she has substantial need for the materials and cannot obtain substantially equivalent information through other means w/o undue hardship (2) Even where such a showing is made, the mental impressions, conclusions, opinions or legal theories if an attorney shall be protected from disclosure (3) Three categories of work product

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Glannon Outline (a) Documents prepared in anticipation of litigation that contain information that can reasonably be obtained through other means discovery barred (b) Substantial need for the materials, and similar information cannot be obtained through other means without substantial hardship ct may order production of materials (c) Opposing counsels thought process in preparing a case, such as legal theories or litigation strategy (opinion work product) cannot be discovered f) Discovery of Experts i) Expert witness a person whose testimony, because of her specialized knowledge, skill, experience, training, or education, will assist the trier of fact in understanding the facts and reaching conclusions on the contested issues ii) Testifying Experts (1) May provide background information to help trier of fact understand the case (2) May offer opinions on issues critical to the case (3) Rule 26(a)(2) parties are required to disclose the names of their testifying experts at least 90 days before trial, together with a report concerning their opinions and the bases of those opinions, their qualifications, compensation. (4) Rule 26(b)(4)(A) - testifying experts may be deposed as well. (5) Rationale: broad trend toward liberal discovery experts cannot be effectively crossexamined without the opportunity to conduct discovery concerning their opinions and the bases for those opinions iii) Non-testifying Experts (1) Hired to help the parties understand the issues in a case (2) Rule 26(a) does not require disclosure of the identity or opinions (3) Rule 26(b)(4)(B) provides that a party may only seek discovery upon a showing of exceptional circumstances (4) Policy: non-testifying experts are fully involved in the preparation of a case for trial. Allowing discovery from these crucial participants would allow counsel to delve deeply into her opponents trial strategy, and would stultify open exchange between counsel and her own experts. iv) Rule 26(b)(1) testimony of experts is within the presumptive scope of discovery rule

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Glannon Outline 19) BASIC METHODS OF DISCOVERY (p. 323) NOTE: did not include examples at end of chapter due to slight coverage of topic in class a) Modern Procedure i) Premised on full access to information possessed by adversaries and third parties before trial ii) Policy: broad discovery makes trial a matter of clear, orderly presentation of evidence known to all litigants. Also encourages settlement by educating the parties about the strengths and weaknesses of their cases iii) 1993 amendments to FRCP (1) Introduced some automatic disclosure requirements for the first time (Rule 26(a)) iv) For the most part, discovery remains an antiphonal process under which adversaries either provide requested information or raise an objection to doing so b) Interrogatories (Rule 33) i) Most frequently used form of discovery ii) Questions propounded by one party to an opposing party, seeking information relevant to the issues in dispute iii) Advantage: inexpensive means of getting information from the other side (1) Most effective for obtaining basic background information (2) Useful to force an opponent to specify the grounds of the general claims raised in a complaint or answer (contention interrogatories) iv) Disadvantage: often less effective than one might expect (1) Rule 33(b)(1) requires the responding party to answer each interrogatory under oath (unless she has an objection) but those answers are crafted by the opposing partys lawyer to reveal as little as possible v) Timing: use early in the case to help develop a plan for further discovery through document requests and depositions c) Requests for Production of Documents (Rule 34) i) Policy: litigation should be based on open access to all relevant information ii) Rule 34 authorizes a party to require an opponent to produce designated documents or things in its control for inspection or copying (1) Parties tend to draft requests for production broadly to snare as much information as possible (2) Parties responding sometimes prefer to open their records as they are kept in the ordinary course of business for examination by the requesting party (a) Can impose a greater burden on the requesting party (b) Rule 33(d) - at minimum, the responding party should indicate how the records are organized, what records respond to which requests, and any other necessary information necessary to locate requested items (3) Disputes often arise over who is going to search for relevant documents and who is going to pay for it (a) Requesting party will usually pay the costs of the search initially, though these costs may be taxable to the losing party if the case goes to trial

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Glannon Outline (4) Presumption: virtually any document that fits the broad relevance standard of Rule 26(b)(1) must be produced (5) Not limited to documents also applies to tangible things such as samples, places, tests on relevant items of evidence iii) Parties resist document requests by construing them narrowly and by liberally invoking privileges and other objections (1) If such objections are asserted w/o a substantial basis, the responding party may be sanctioned under Rule 37

d) Oral Depositions (Rule 30) i) The taking of testimony from a witness. ii) Because the witness is sworn, her testimony is subject to the penalties of perjury (Rule 30(c)) iii) Advantages: the most effective means of obtaining detailed information from witnesses before trial (1) Counsel gets to see the party or witness evaluate how effective they will be as trial witnesses (2) Witness required to answer questions spontaneously a much better preview of the witnesss trial testimony than sanitized interrogatory answers (3) Counsel can frame follow-up questions based on previous answers (4) Deposition is on the record commits the witness to a detailed version of the relevant events; changing the testimony at trial can be used effectively to impeach that testimony iv) Disadvantage: time and expense (1) Taking a deposition requires a full understanding of the case, which takes time (2) Deposition itself can last from hours to days (3) Cost of the ct reporter is substantial e) Taking Depositions: Timing and Mechanics i) Conventional wisdom is that depositions should come after interrogatories ii) Taking early depositions can make tactical sense (1) Pin down an opponent to a particular version of the facts or legal position early on iii) Rule 30 - allows counsel to take depositions of any person, including a party (1) Rule 45 if the person to be deposed is not a party, she must also be subpoenaed (a) Court order to appear and give testimony (b) If a deposing counsel wishes a non-party deponent to produce records or other tangible evidence for the deposition, she must serve a subpoena with the notice of deposition specifying the documents or things to be brought to the deposition. iv) Counsel representing the deponent may object to questions on a number of grounds (Ex. irrelevance), but the witness is usually required to answer the question even if she has an objection to it (Rule 30(c)) (1) Most evidentiary objections made with the intent of keeping evidence from being produced at trial (2) When the objection is based on a privilege, counsel for the deponent may instruct her not to answer the question (Rule 30(d)(1)) - 43 -

Glannon Outline (a) Rationale: the whole point of the privilege is to protect that information from disclosure at all, not just disclosure at trial v) Counsel for the deponent has the right to cross-examine (1) May be important to clarify statements right away (2) Necessary if a trial deposition rather than a discovery deposition (a) Will be read into the record at trial in place of the witnesss live testimony f) Physical or Mental Examinations (Rule 35) i) Rule 35 authorizes physical or mental examination of parties whose condition is at issue in the case ii) Due to the intrusive nature of such examinations, parties must obtain a court order for a physical or mental exam (1) Standard: will be granted for good cause shown (Rule 35(a)) (2) Invoked to allow to obtain an independent medical examination of the in cases involving physical injury iii) Rule 35(b)(1) if a party does obtain an examination of another party under Rule 35, she must provide a copy of the independent examiners report to the examined party if she requests it g) Requests to Admit (Rule 36) i) Not really a discovery device, but a means of narrowing the scope of trial by eliminating uncontested issues (1) Matters that are admitted are deemed as established for purposes of the case (Rule 36(b)) ii) Rule 36 authorizes a party seeking admission of certain facts to send a request to an opponent to admit those facts. (1) Receiving party required to admit or deny the truth of the statements, or raise an objection to the request iii) Not always possible to rely on admissions to remove an issue from dispute (1) Opponents will usually go as far as ethical constraints allow in refusing to admit damaging facts (2) If the admitting party has not thoroughly prepared, she may learn later that she grounds to contest facts previously admitted, and move to withdraw the admissions (a) Policy: judges will grant the motion because they prefer to see cases resolved on the evidence rather than on mistaken concessions of counsel h) Automatic Disclosure (Rule 26, see caveat below) i) Rule 26(a)(1) parties are required, at the outset of the case and without a request from any other party, to disclose to other parties the names and addresses of persons with relevant information, copies or descriptions of relevant documents and tangible evidence, computations of damages with supporting documentation, and copies of insurance contracts covering claims in the suit ii) Rule 26(a)(2) parties must disclose the identities and reports of experts, iii) Rule 26(a)(3) parties must disclose documents and depositions each party expects to offer in evidence at trial

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Glannon Outline iv) Rule 26(f) requires to parties to meet and confer about disclosure and subsequent course of discovery v) Rule 26(d) until the meet and confer, parties are barred from traditional discovery by interrogatories, requests for documents, and depositions vi) Rule 26(e) duty to supplement inaccurate or incomplete disclosures or discovery responses vii) Policy: speed the process of discovery and reduce its cost (1) Remains to be seen whether automatic disclosure will work as designed (a) Disclosure takes place primarily at the outset of the case, when the parties knowledge of the case will be limited when they make initial disclosures (b) Rule 26(e) has proved very difficult to enforce (c) Critics claim there will be new battles about the sufficiency of disclosure, and the rules may raise ethical conflicts between counsels duty to her client and to the court under the disclosure rules viii) Rules are somewhat radical (1) CAVEAT: Rule 26(a) specifies that these requirements shall apply unless otherwise stipulated or directed by order or local rule (a) Authorizes each federal district to decide for itself whether to require automatic disclosure (b) Many districts have rejected it national uniformity of the FRCP has been compromised (2) Beginning Dec. 1, 2000, courts wont be able to opt out of early disclosure requirements anymore. (a) However, will only have to disclose evidence you will use to support your claim/defense. Rationale: References to proportionality. i) Discovery: Court Supervision and Sanctions (Rule 37) i) In the cases of discovery rules, the consequences of failure to comply depends on your opponent. ii) If information is important, the opponent will likely move for an order to compel discovery under Rule 37 (1) Rule 37(a)(2) must first confer informally w/opponent (a) If informal means do not resolve the matter, the requesting party must move to compel disclosure (2) Rule 37(a)(4) if the motion is granted, the ct may order the noncomplying party to pay the moving partys expenses and fees for the motion to compel (a) Rule 37(a)(4)(C) ct may also enter protective orders defining the scope of required discovery and barring unwarranted or harassing discovery (3) Rule 37(b) if the party still does not respond adequately, the rule authorizes sanctions (a) Striking claims, taking disputed facts or claims as established, excluding evidence, dismissing the action, or ordering payment of fees and expenses caused by failure to comply iii) Going to ct tends to absorb the parties resources, irritate the judge, leave counsel feeling unsupported by the ct, and yield compromise positions that satisfy no one (1) vast bulk of discovery disputes left unresolved by the parties

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Glannon Outline

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Glannon Outline 20) DISMISSAL FOR FAILURE TO STATE A CLAIM COMPARED TO SUMMARY JUDGMENT (p. 365) a) Devices s may use to challenge the merits of the s case before trial (pretrial resolution) i) 12(b)(6) motion to dismiss for failure to state a claim on which relief can be granted ii) Rule 56 motion for summary judgment b) The Rule 12(b)(6) Motion i) may move to dismiss the s complaint on the ground that it fails to state a claim that entitles the to any form of relief ii) The wrong that the describes is not recognized as a violation of any legal rights (1) Ct would not be able to grant damages or other relief to the even if he proved all the facts alleged iii) Standard: whether the complaint itself states a legally sufficient claim (1) Assumes that the facts are true and the will prove them (2) Purely legal question: whether, if the proves the allegations in the complaint, he will have established a cause of action entitling him to some form of relief from the court iv) Cts give every benefit of the doubt to the in deciding the motion (1) Conley v. Gibson (U.S. 1957) held that a complaint should not be dismissed under Rule 12(b)(6) unless it appears beyond doubt that the can prove no set of facts in support of his claim which would entitle him to relief (2) Pleadings must be liberally construed in favor of sustaining the complaint ct can infer what the is alleging v) Types of defective complaints that are vulnerable to dismissal (1) has sought relief for acts that are not proscribed under current law (2) has failed to allege the necessary elements of a claim that, if properly pleaded, would state a sufficient claim (a) if an oversight, ct will allow to amend the complaint, and suit will proceed (b) if cannot allege the necessary element, the complaint is fatally defective c) Examples i) Rule 12(b)(6) motion is available to resolve difficult issues of law as well as clear ones (1) Some cts may be reluctant to grant motions to dismiss if the state of the law is unsettled may sense that the issue is close and could be better decided on a full record after discovery or trial ii) For purposes of the motion to dismiss, ct only knows what is in the complaint (1) Under Conley v. Gibson, ct must ask whether the , on the allegations of the complaint, could prove any set of facts that would entitle her to relief (a) If the ct can reasonably infer that has stated a valid CofA, must deny the motion to dismiss (2) s plead generally in order not to reveal weaknesses in their cases or simply to avoid giving the opposing party any free discovery (a) will use SJ motion to flush out such weaknesses anyway (3) may plead specifically because it is more helpful to the ct and may trigger more specific responses from the in his answer iii) If did not allege an element because he has no support for his theory dismiss - 47 -

Glannon Outline iv) Rule 12(h)(2) authorizes to raise the objection of failure to state a claim in any pleading, by motion for judgment on the pleadings or even at trial v) Distinguish legal sufficiency of the claim from the factual issue of whether the allegations are true factual issues cannot be resolved by 12(b)(6) motions d) Summary Judgment Distinguished (Rule 56) i) Purpose: allow early resolution of cases in which the meets the minimal burden to plead the elements of a compensable claim, but cannot prove one or more of those elements ii) Summary judgment entry of judgment by the ct in favor of either the or the w/o trial (1) Before evidence is presented to the jury iii) Standard: Appropriate only if the evidence before the ct demonstrates that there are no disputed issues of material fact to be tried and that the moving party is entitled to judgment on the undisputed facts (Rule 56(c)) iv) Motion challenges s ability to prove an essential element of his claim (1) When the motion is made and adequately supported, must respond by producing admissible evidence that tends to prove the challenged element (Rule 56(e)) (a) Such evidence would demonstrate that there is a genuine issue of material fact as to the issue (b) Burden to produce legally competent evidence upon which a jury could resolve the factual issues in his favor (i) If there is a genuine issue of material fact, the jurys role is to resolve it (ii) The judges role is only to determine whether the parties evidence reveals a factual dispute (2) If countervailing evidence is produced by , SJ is denied (a) SJ intended only to determine whether there are genuinely contested issues of material fact, NOT to try the facts v) Rationale: If there is no factual dispute for the jury to try, the jury would have no legitimate basis on which to find for the . A verdict for him could only reflect irrational decision-making. SJ avoids this risk, as well as the delay and expense of trying unprovable cases. vi) A motion for SJ may be supported by affidavits, depositions, answers to interrogatories, admissions, and admissible documents (Rule 56 (c), (e)) (1) Materials are not always admissible at trial themselves, but they demonstrate that the party has access to evidence that would be admissible and supports the claim (2) Allegations in the pleadings are not admissible evidence (are only assertions as to what the parties can prove) e) Summary Judgment in Other Types of Cases i) Cases in which parties agree on the underlying facts but disagree as to the legal implications of those facts (1) presents legal argument that the evidence satisfies an element (2) Motion frames a single dispositive issue for the court (3) If the ct agrees with the s legal argument, it will deny SJ (4) If the ct decides the element is not satisfied will enter judgment for the because he is entitled to judgment as a matter of law ii) Resolve individual claims in a multi-claim lawsuit - 48 -

Glannon Outline f) Examples i) Admissible evidence deemed sufficiently reliable, under established rules of evidence, for a jury to hear and consider in reaching its decision of facts (1) Since the point of the SJ motion is to see if there is any evidence on the challenged allegation for the jury to consider the evidence used to support the motion should be evidence that the jury could hear at trial ii) Rule 56(c) no genuine issue of material fact (1) Dispute must be on an issue that is material to the right to recover (2) Ambiguity in Rule 56 (a) 56(c) provides that SJ can only be granted if there is no genuine issue as to any material fact (i) SJ often decided even if there are unresolved issues in the case (ii) So, the language must mean no factual dispute concerning the particular element of the claim that is challenged by the motion iii) Ct may grant partial summary judgment for the (on one element) iv) Rule 56(e) SJ granted if appropriate where the moving partys materials would suffice to establish that partys version of the facts that the burden shifts to the opposing party to introduce contrary evidence (1) If the evidence offered could give rise to two inferences, one of which would support the opposing partys case, ct would assume jury would make that inference and deny SJ (even if opposing party does not file materials) (2) 56(e) provides that a party may not avoid SJ by resting on contrary allegations in the complaint (a) SJ motion challenges to show he can prove it, not just allege it v) Whether the SJ motion should be granted turns on whether the moving party can get SJ by pointing out that the party w/the burden of proof lacks adequate evidence to meet that burden, without producing any evidence of its own to disprove the alleged facts vi) Celotex Corp. v. Catrett (U.S. 1986) (1) Issue: whether s decedent had been exposed to asbestos products (2) Held: a party can support a SJ motion w/materials that show that the party who has the burden of proof of an essential fact cannot prove that fact (3) Held: if the demonstrated that there was no evidence in the record to support s claim of exposure to its product, and the did not produce evidence tending to prove exposure could get SJ w/o presenting any evidence to show lack of exposure (4) entitled to JAML if , who held burden of proof on the issue, had no evidence to carry the burden (5) s put in a difficult position: must aggressively develop evidence before the motion. If does not, will lose because he has not gathered the evidence necessary to prove it. (a) Moving party can force opponent to this effort w/o showing any of the contrary proof he will produce at trial (b) has recourse to Rule 56(f) allows ct to grant continuances to allow the opposing party to develop the case (i) Discretionary be ready to specify exactly what further discovery is necessary in order to properly respond to the s Celotex motion

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Glannon Outline 21) JUDGMENT AS A MATTER OF LAW (DIRECTED VERDICT) (p. 385) a) Summary Judgment is justifiable in cases where there is nothing for the jury to do i) Judge uses devices to control the jurys decision-making process (1) Judgment as a matter of law (JAML) (2) New trial (MfNT) weaker evidence for no proof for W Q R stronger evidence for .

X Z Y burden of production evidence evenly balanced s proof so strong that any has produced evidence reasonable jury would have to conclude that is sufficiently persuasive that has proved her case that a jury, acting rationally, could find that she has proved each element of her case Note: s burden of proof in a civil is case is that a preponderance of the evidence favors her version of the events. Evidence must fall to the right of the Z line for to carry her burden of proof. b) Arena for jury decision i) Arena for legitimate differences of opinion as to the proper outcome (between the X and Y lines) (1) If reasonable minds can differ as to the result, the case is for the jury, not the judge (2) Jury must be given the opportunity to consider the case, even though the judge believes that the preponderance of the evidence favors the c) The Motion for Judgment as a Matter of Law (JAML) i) Cts have long provided procedural means for judges to take cases away from the jury if the s evidence does not reach the magical X line (1) No jury, acting rationally on the evidence before it could find for the allowing the case to go to the jury invites irrational decision-making based on irrelevant or prejudicial factors (2) Judge has traditionally had the authority to guard against flawed verdicts by refusing to send cases to the jury if there is no legitimate doubt as to which side should prevail (3) Motion may also be granted for s (if s evidence is so strong as to pass the Y line) ii) Device: motion for judgment as a matter of law (1) Traditionally known as motion for a directed verdict (a) Change in name only in federal courts - 50 -

Glannon Outline (2) Judge does not resolve factual issues but makes a legal judgment that the evidence is so lopsided that there really is no meaningful factual dispute for a jury to consider d) The Timing of the Motion i) Typically, will move for JAML at the close of the s evidence (1) Ground: has not produced enough evidence to support a rational verdict in her favor (2) If the judge denies the motion will present her evidence to rebut the s case or to establish affirmative defenses ii) After the rests, she may move again for JAML (1) Ground: challenging the sufficiency of all the evidence, both s and s, to support a verdict for e) The Standard for Entering Judgment as a Matter of Law (see class notes) i) Difficult to articulate a workable standard for deciding when evidence crosses X and Y ii) Rule 50(a) specifies that JAML may be entered when there is no legally sufficient evidentiary basis for a reasonable jury to find for the nonmoving party iii) Possible tests (1) Case must go to the jury if there is even a scintilla of evidence to support the opposing partys case (a) If the has any evidence to support the elements of her claim, she will get to the jury (point W on the diagram) (b) Gives the greatest latitude to the jury at the expense of effective judicial control or irrational jury decision-making (2) s evidence standard: requires the judge to consider only the evidence proffered by the nonmoving party. (a) Judge must assume the truth of all evidence offered by the nonmoving party, and direct a verdict (enter JAML in federal ct) only if that evidence would not support a verdict for the nonmoving party (b) Judge may NOT determine the credibility of witnesses (a jury decision) (c) Test: whether the jury, if it chooses to believe those witnesses, would have sufficient evidence to support a verdict for the (3) Federal standard: requires the judge to consider the nonmoving partys evidence in its most favorable light, but also to consider any evidence put forward by the moving party that is not impeached or contradicted by the opposing partys evidence (a) If, after considering all that evidence, there can be but one reasonable conclusion as to the verdict, the judge must direct a verdict for the moving party. (b) Very widely followed in state cts, too f) Examples i) JAML is a bit of a misnomer: judge makes a factual judgment that the evidence is too farfetched to justify a finding for the (1) To reach the jury, the must present credible evidence on each element of her claim; if proof fails on any one, the is entitled to JAML ii) Rule 50(a) motion for JAML may be appropriate as soon as the part has completed presentation on a fact essential to the partys case (1) Addresses judges power to enter a judgment in a case tried to a jury - 51 -

Glannon Outline (2) Modern tendency for judges to aggressively manage cases in order to speed their disposition (Ex. Rule 16 authorizing scheduling and pretrial conferences) (a) Judge can order that certain issues are tried first (b) Policy: some lawyers feel this managerial approach unfairly encroaches on their traditional prerogative to present their cases in their own way. (i) But marked tendency is federal cts to curtail counsels autonomy in litigation procedure in the interest of efficient resolution of cases (ii) Rule 50 extends this practice to directed verdicts as well iii) Credibility of witnesses (1) Ct may not pass on issues of credibility in ruling on a motion for JAML (2) If there is a legitimate conflict in the evidence, the jury must resolve it. (3) Will be a jury issue UNLESS the ct concludes that the testimony is inherently incredible iv) Rule 50(a) compared to Rule 56 (1) Difference is essentially procedural (2) Rule 50(a) motion is raised during the trial and decided on the basis of the testimony and documentary evidence offered at trial (3) Rule 56 SJ motion made before trial and determined solely on the basis of documentary evidence such as depositions, interrogatories, and affidavits (4) Many cts more reluctant to grant SJ (56) than JAML (50(a)) (a) Not unusual for ct to deny SJ but subsequently grant JAML for the same party (b) Tend to give party opposing SJ benefit of the doubt by allowing the case to proceed to trial

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Glannon Outline 22) THE JUDGE AND THE JURY (p. 405) a) Judge may allow the jury to deliberate and reach its verdict on the evidence but refuse to enter judgment on the verdict rendered i) Traditionally, the judgment notwithstanding the verdict (j.n.o.v) delayed (or renewed) motion for a directed verdict (1) Standard: same as that for directing a verdict: granted if the opponents evidence is so weak that no reasonable jury could have reached a verdict for him (2) Asserts that the jury acted irrationally, in disregard of the evidence in reaching a verdict for the party opposing the motion ii) Now called judgment as a matter of law (1) Takes the case from the jury to prevent an irrational result (2) New name refers to both the pre-verdict and post-verdict motion iii) Reasonable judges may differ about whether a given case is strong enough to go to a jury (debatable) (1) Judges entry of JAML before the jury deliberates will frequently be appealed (a) If the appellate ct concludes the evidence was sufficient, it reverses the judges entry of judgment and orders a new trial (b) Requires a wasteful repetition of the entire first trial (2) If judge withholds decision on the sufficiency of the evidence by denying JAML at the close of evidence, the jury (recognizing the evidence is weak) will frequently return a verdict for the nonmoving party (a) If the jury returns a verdict for the party against whom the judge considered directing a verdict judge can still enter JAML (i) If the case is then appealed, no need for a new trial: if the appeals ct reverses the judges order, it can then enter judgment on the jurys verdict b) Prerequisites to the Renewed Motion i) Limitations on the right to seek JAML (1) Rule 50(b) the motion must be filed w/in ten days of the entry of judgment on the jurys verdict (2) Party may only move for JAML after the verdict if he made the same motion before the verdict (a) Rationale: party moving at the close of evidence must state his grounds for concluding that the case should not be submitted to the jury (Rule 50(a)(2)). Alerts the ct and the opposing party to the defects in the partys case before the jury has gone out, while there is still time to offer further evidence to cure the defect. (b) Prevents a party from sandbagging his opponent by raising defects in the opponents evidence after the jury has been discharged, when it is too late to cure them ii) Policy: the entire thrust of the Rules is to ensure that suits are determined on the merits, not on the procedural skills of counsel c) New Trial Distinguished i) Rule 59 - the grant of a new trial does not end the case but leads to a second trial on all or part of the case (1) Must be filed within 10 days of entry of judgment - 53 -

Glannon Outline (2) Allows the judge to vacate the verdict and order the case retried in order to assure the parties a fair trial procedure Two categories of cases in which the cts have granted new trials (1) New trials for error in the trial process (a) Policy: every litigant is entitled to due process of law, including a fair trial procedure before his rights are determined (b) Errors of this sort may taint the jurys decision-making process, leading it to consider inappropriate information in reaching a verdict or to use the wrong rules of law in assessing liability or damages (2) Trial process was fair but the result was wrong: verdicts against the weight of the evidence (a) Various standards (i) Judge may grant a new trial if the jurys verdict is against the clear weight, the overwhelming weight, or great weight of the evidence; (ii) when it is quite clear that the jury has reached a seriously erroneous result (b) Judge cannot displace the jury simply because he disagrees with the jury (i) But may order a new trial when the evidence is strong enough to rationally support the jurys verdict, but he believes the jurys verdict is seriously erroneous (point Q on the diagram) (ii) When the evidence is within the arena for jury decision BUT judge disagrees (3) Important difference between (1) and (2) on appellate review (a) Trial error: can be reviewed de novo by the court of appeals (b) Against the great weight of the evidence: includes balancing of evidence which usually only the trial judge has a full opportunity to observe (i) Rare for appellate judges to second-guess MfNT on this ground (ii) Trend: review new trial grants under an abuse of discretion standard 1. Gasperini v. Center for Humanities, Inc. (U.S. 1996) a. Does the seventh amendment mandate this particular result? Even if not, federal cts have adopted rules about this. [Gerken: Use the BYRD TEST] Judge may consider the credibility of witnesses (1) Acting as thirteenth juror in making an independent assessment of the evidence (2) Decides whether it is would serve the ends of justice to have another jury hear the case Arguably, the judge is more intrusive w/ MfNT than with JAML (1) Standard for granting a new trial is less stringent (2) Counterargument: it is a new jury, not the judge, that will reconsider the case if the motion is granted Refer to diagram on Glannon, p. 411: The Judges Power to Displace the Jurys Verdict weaker evidence for Evidence too weak to support rational A verdict for is supportable, but against Evidence Evenly Balanced Judge and jury concur the preponderance of the stronger evidence for A verdict for is supportable but against clear weight of Judge concludes that evidence is so compelling

ii)

iii) iv)

v)

Judge does not agree with jury, but cannot say

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Glannon Outline verdict for clear weight of verdict for is the evidence against clear weight of the evidence Judge may Judge will order new trial order entry of judgment on the jurys verdict evidence favors Judge will order entry of judgment on the verdict for evidence that no reasonable jury could find for (rare) Judge enters directed verdict or j.n.o.v. for

Judge may enter directed verdict or j.n.o.v. for

Judge may order new trial

vi) No final decision on which to base an appeal (1) But some state systems allow an interlocutory appeal from the grant of a new trial vii) Judge may grant partial new trials d) Examples i) Rule 50(b) requires that the motion be made before verdict (d.v.) in order to preserve the right to make the motion after verdict (j.n.o.v.) (1) Rationale: put on notice of the alleged weakness in his case (2) Ct has chance to consider the sufficiency of the entire evidence before sending the case to the jury (3) Motion must be made w/in 10 days of the entry of judgment ii) Rule 59 contains no analogous requirement of a prior motion for JAML (d.v.) or for a new trial in order to move for a new trial on the ground that the verdict is against the clear weight of the evidence (1) Motion must be made w/in 10 days of the entry of judgment (2) The making of one post-trial motion does not suspend the time for making the other (3) Policy: strict limit on the time for granting a new trial reflects a strong policy in favor of finality of judgments iii) can make three motions together after a trial (w/in 10 days): (1) Renew motion for JAML (seek j.n.o.v.) under Rule 50(b), if she believes evidence was too weak to support a rational verdict for (2) Join a motion under Rule 59 for a new trial (3) assert improper jury instruction as an alternative ground for a new trial iv) If judge enters JAML against (j.n.o.v.) for , Rule 50(c)(2) allows to move for new trial w/in 10 days on ground that evidence was improperly excluded v) May not appeal grant of a new trial until after the new trial is held because a new trial grant is not considered a final judgment under federal practice. (1) Requires a second trial before appeal (2) Some states allow interlocutory review of new trial grants e) Combined Motions and Appellate Review i) Rule 50(c) and (d) set forth the procedure for presenting objections for motions for JAML and MfNT, and for appellate review of such combined motions ii) Rule 50(c)(1) trial judge confronted with a combined motion for JAML and MfNT must not only rule on the j.n.ov. but must also make a conditional ruling on the alternative motion for a new trial iii) Ct of appeals can then address both issues at once in one consolidated appeal. - 55 -

Glannon Outline iv) Standard: must be some final judgment f) Examples i) may appeal judges combined ruling, even though new trial was conditionally granted (Rule 50(c)(1)) (1) Allows appellate ct to fully dispose of both motions in a single appeal w/o remand for post-trial decisions ii) If Appellate Ct concludes judgment should have been granted for because s evidence was too weak to get to the jury, it may enter JAML (j.n.o.v.) itself (1) J.n.o.v. is a question of law that the appellate ct reviews de novo iii) If Appellate Ct concludes JAML (j.n.o.v.) was properly denied and verdict was not against the clear weight of the evidence will consider whether new trial should have been granted due to legal error in the instructions (1) Issue of proper rules for the jury is a question of law the ct of appeals decides de novo. iv) Assume won verdict, that seeks JAML (j.n.o.v.) on the basis that evidence was too weak to support s verdict, and, in the alternative, a new trial on the ground that the judge mistakenly excluded important evidence offered by . (p. 416) Trial Court Grants s motion for j.n.o.v., and his conditional motion for new trial Grants s motion for j.n.o.v., and grants his conditional motion for new trial Denies s motion for j.n.o.v., and grants his conditional motion for new trial Denies s motion for j.n.o.v., and grants his conditional motion for new trial Grants s motion for j.n.o.v., and denies his conditional motion for new trial Disposition of Appellate Court Agrees that j.n.o.v. proper, but not new trial Agrees with both decisions Action by Appellate Court Enter judgment for , since s case too weak to support a verdict Enter judgment for , since both cts agree s case too weak to support a verdict Cannot do anything until appeals new trial grant after second trial. Ct will reverse order for a new trial and order entry of judgment for the on the original verdict. Have to wait until after second trial. Ct will reverse order for new trial BUT will enter judgment for the anyway, since s motion for j.n.o.v. should have been granted at end of first trial Case is immediately appealable. Reverse the entry of judgment for the , but remand back to trial court.

Agrees on j.n.o.v., disagrees on new trial

Disagrees on both

Disagrees on both

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Glannon Outline

PART FIVE: THE EFFECT OF THE JUDGMENT 23) RES JUDICATA (p. 427) a) FRCP create a flexible procedural system in order to prevent procedure from dominating substance, to assure that the merits of the parties claims, not procedural missteps, determine the outcome of lawsuits i) Examples of procedural liberality: (1) Parties are given broad power to join claims and parties in a single suit (Rules 13, 14, 18, 20, 24) (2) Given latitude to plead al their possible claims against opposing parties, within the limits of proper pleading (Rules 8(a), 8(e)(2), 11) (3) Pleadings are liberally construed (Rule 8(f), Conley v. Gibson) (4) Amendments to pleadings freely allowed (Rule 15(a)) (a) Even if amendments are not offered, courts can treat the pleadings as though they had been amended when justice so requires (Rule 15(b)) (5) Cts may grant the parties the relief to which they are entitled even though they never asked for it. (Rule 54(c)) (6) Ct may grant relief from judgment (Rule 60(b)) or a new trial (Rule 59) ii) Opposite is true for rules governing relitigation (1) Once the parties have had a full and fair opportunity to be heard under the flexible rules, the process comes to a halt b) Res judicata is strict and uncharitable i) A claim is merged into the judgment a party has won (extinguished and replaced) ii) A claim is barred by an adverse judgment, so that no further suit could be brought on that claim. iii) Rationale: litigation is burdensome enough the first time around (no justification for multiplying the costs and delay of litigation after the first full opportunity). Without the certainty provided by res judicata, parties would not be able to rely on court decisions in planning their future conduct. iv) Efficiency would not be justified if it were achieved at the expense of fairness. (1) If amendments are liberally allowed in the first suit, it is fair to bar a second action on theories left out of the first suit. (2) Res judicata encourages parties to take full advantage of the Rules to present their claims initially c) Four prerequisites to res judicata: 1) Final judgment 2) Judgment must be on the merits 3) Claims the same in the 1st and 2nd suits Entered by trial ct. Jurisdictions differ on whether a suit on appeal has RJ effect. needs only to have had a full opportunity to litigate the merits in the first action Test: transaction or occurrence test of the federal joinder rules (need not have been litigated for RJ, only need to have been - 57 -

Glannon Outline available) Or have been represented by a party in the prior action

4) Same parties

d) The Same Claim Requirement for Res Judicata i) Test: equates a partys claim for res judicata purposes with the transaction or occurrence test of the federal joinder rules (1) Claim preclusion turns on the right to join the claim in the original action, not on whether the claim actually was asserted. (2) Claims need not have been litigated to be barred in a later action; they need only have been available to the in the first suit ii) A party who has asserted a right to relief arising out of a particular transaction or occurrence must join all the claims she has arising from it, or the omitted claims will be barred by res judicata iii) Res judicata should not bar claims that could not have been joined in the first action. e) Judgment on the Merits i) Paradigm: a full trial followed by a verdict and a judgment ii) Some dismissals do not bar a second action because they did not reach the merits (1) Improper venue or lack of personal jurisdiction (2) Basis of dismissal in these actions is that the ct does not have the power to reach the merits iii) Jurisdictions differ as to whether a 12(b)(6) motion should bar a second action (1) Restatement says it should be barred: a whose complaint is dismissed for failure to state a claim has already been given liberal opportunities to amend. Federated Department Stores v. Moitie (U.S. 1981) (2) Some state cts allow a second action because comparatively little litigation effort goes into preliminary dismissals so a basic value underlying RJ (preservation of scare judicial resources) is not compromised by allowing a new action iv) Actually, cts need not reach the merits for judgment to have full RJ effect needs only to have had a full opportunity to litigate the merits in the first action (1) Rationale: If she doesnt take the opportunity, she must accept the RJ consequences. Same rationale for a who defaults. f) Final Judgment i) Generally, cts remain free to reexamine interlocutory rulings made in the course of a suit, including a ruling dismissing one of the s claims. ii) Until final judgment is entered in the trial ct, it remains too uncertain to support a res judicata plea in a separate action between parties iii) Restatement view differs (1) Many cts give res judicata effect to a judgment once it has become final in the trial ct, even if an appeal is pending. (2) A judgment may bar relitigation even though the original case is still being litigated and is not yet enforceable by execution or otherwise. g) Examples - 58 -

Glannon Outline i) A judgment need not be right to preclude further litigation; it need only be final and on the merits. (1) If exclusion of evidence was improper in the first suit, appeal rather than relitigate the same issue in a second suit (Moitie) ii) Res judicata bars not only those claims that were asserted in the first suit, but also any others arising out of that transaction or occurrence that could have been asserted but were not. ( cannot just switch theories should include multiple theories in first complaint) iii) Cts generally reject relitigation for future damages for injuries surfacing after first judgment (1) (Policy: finality of judgments; Rule: must recover for all her damages in the original action, w/ exception in some asbestos cases) iv) Every potential who suffers injury from a transaction or occurrence has a distinct claim for res judicata purposes v) Separate breaches of contract in successive years are different occurrences that may be sued on separately (if they could not have been raised in the same action) vi) CHECK to see if jurisdiction has a compulsory counterclaim rule (Rule 13(a)) vii) Dismissal for lack of subject matter jurisdiction does not constitute judgment on the merits. viii) Summary judgment and JAML are considered to be on the merits. ix) General rule: s in federal ct must assert their supplemental claims or lose them by operation of res judicata. x) Cases must be decided according to the law at the time of trial and not relitigated if that law changes (appeal!; Moitie) would undermine RJ policies of judicial economy and certainty of judgments xi) Majority rule in federal cts: ct may not grant relief from judgment due to a change in the substantive law once the period for appeal has passed (1) But, if the law changes while the period for appeal is still running, many cts would allow to seek relief from judgment on this ground.

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Glannon Outline 24) RES JUDICATA AND THE RULES OF JOINDER (p. 447) a) Ought to be a close relationship between the parties right to join claims in their first lawsuit and the scope of res judicata in subsequent suits between them i) The system ought to offer parties a chance to have all their claims heard, through either (1) Limited claims in multiple suits, or (2) Multiple claims in a single suit (a) Federal cts (and many state systems) choose this route (b) Implemented by extremely broad rules governing pleading and joinder (i) Rules (8)(a)(3), 8(e)(2), 13, 14, 18, 20 (ii) Liberal joinder rules give s broad power to join all their theories of recovery in initial suit (iii)The may of these rules means must when the effects of RJ are considered. (iv)Exceptions when initial joinder of a particular claims is not available under Rule 18(a) ii) Theories that could have been joined are generally barred iii) Scope of permissible joinder of parties is much broader than the dimensions of a single claim for res judicata purposes (1) In many cases, claims against additional parties could be joined under the Rules but will not be barred by res judicata if they are not (2) s rights to recover from separate s are considered distinct claims under res judicata analysis, even though they arise out of the same occurrence (3) Same parties requirement not met since the s differ in the two actions (4) Policy: is the master of his claim (favor freedom of choice over efficiency) (5) However, the first action may have some preclusive effect (a) Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation (U.S. 1971) (b) Inhibits freedom of choice to some extent, since cannot start action w/a completely clean slate b) Examples i) Rule 20 says s may sue > 1 , not required to do so ii) Res judicata all theories for recovery arising out of a single transaction or occurrence constitute a single claim for preclusion purposes (1) Applies not only to s, but to all parties in the suit who have asserted claims iii) Intervention (1) Rule 24(b) (a) Permissive: cts may deny for a number of reasons (2) Intervention as a matter of right (Rule 24(a)) (a) Demonstrate prejudice (will be barred from future litigation of claim) (b) Not required of parties (optional) (c) CHECK on jurisdictional problems (Ex. destroying complete diversity) iv) In some systems, counterclaims are NOT compulsory even in these jurisdictions, it is sometimes held that a party waives his right to sue separately on an omitted counterclaim if the issues were raised defensively in the prior action v) CHECK for subject matter jurisdiction over additional claims (1367)

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Glannon Outline vi) Policy: amendment rules are liberal, but not meant to encourage s to hold back on some claims and then spring them on s right before trial (1) Fairness to the (2) Need to expedite litigation

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Glannon Outline 25) COLLATERAL ESTOPPEL (p. 459) a) Res Judicata Compared to Collateral Estoppel i) Res judicata indiscriminately stops efforts of parties to relitigate events that have already been litigated and decided in a prior suit (1) Forcing to bring all claims she has arising from the original action (2) A second suit based on a repeated action would not be barred by res judicata because it is not the same incident as the original action (3) Applies only to parties and their privies ii) Collateral estoppel dissects a lawsuit into its various issues and removes from reconsideration any that have been properly decided in a prior action (1) More narrowly focused: precludes only issues decided in the previous action (2) Only precludes a party from relitigating issues that were actually litigated and decided in a prior action with the same party (3) The repeated action would be collaterally estopped because that issue was litigated and decided (4) Collateral estoppel is needed because issues already litigated may come up again in later litigation based on separate events (a) Precludes relitigation of an issue even if res judicata is inapplicable (b) Broader: can foreclose litigation of a particular issue in an entirely new context (5) Can be used by someone who is not a party to the suit b) Prerequisites for Estoppel i) The issue in the second case must be the same as the issue in the first. ii) The issue must have been actually litigated (1) Just because an issue is raised does not mean it was actually litigated (2) Policy: The interests of conserving judicial resources, of maintaining consistency, and of avoiding oppression or harassment of the adverse party are less compelling when the issue on which preclusion is sought has not actually been litigated before. iii) The issue must have been actually decided in the first action iv) The decision on that issue in the first action must have been necessary to the cts judgment (1) Judge may decide on a number of issues that do not ultimately determine the outcome of the case (2) If there are two independent sufficient grounds for a decision, the Restatement would deny collateral estoppel effect to either decision since it is impossible to tell which decision was necessary to the judgment (a) Rationale: a decision in the alternative may not have been as carefully considered. The losing party might be dissuaded from appealing because of the likelihood that at least one of the determinations would be upheld and the other not reached. (i) Halpern v. Schwartz (2d Cir. 1970) even subsequent cases have limited this holding to bankruptcy cases in the Second Circuit (b) Rationale NOT universally accepted: some cts have given collateral estoppel effect to both alternative determinations c) Further Complications i) Offensive use of estoppel and nonmutual estoppel - 62 -

Glannon Outline (1) Parklane Hosiery Co., Inc. v. Shore (U.S. 1979) see next section d) Examples i) Analysis of collateral estoppel issues should always begin with a determination of what was decided in the first action. (1) Different factual issues must be litigated in the new suit (2) Collateral estoppel does not affect claims or defenses that could have been raised but were not (3) Can work for either party ii) Relief from judgment (Rule 60(b)(2)) applies only to reopen an original action iii) General verdict jury asked to find for (and damages) or (1) Impossible to tell which issue is decided collateral estoppel will not bar relitigation of either issue (2) Neither holding is entitled to preclusive effect because the losing party had no incentive to appeal on one arguably incorrect ground if the other would support the judgment iv) Denial of motion for SJ (or JAML) does NOT actually decide an issue v) Value of invoking collateral estoppel: save litigation time, assure same favorable result obtained in first suit

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Glannon Outline 26) NONMUTUAL COLLATERAL ESTOPPEL (p. 477) a) Collateral Estoppel i) Issues decided in one lawsuit may have effects in another suit between the parties at a later time or in a different ct ii) Traditional preclusion principles a party may be estopped from relitigating an issue that he had litigated in a prior suit and lost iii) Nonmutual collateral estoppel goes a step beyond this doctrine (1) Allows a new party to invoke collateral estoppel against a party who litigated and lost on an issue in a prior action (2) Mutuality rule has been abandoned in many jurisdictions (a) Prior Rationale: parties that take the risk of litigating are the ones that face the consequence of being bound in subsequent suits by the decision, and only they should benefit from collateral estoppel. Also, w/o the rule there is the problem of over-litigation of issues in the original action for fear of unknown risks of estoppel in future actions involving new parties. (3) Bernhard v. Bank of America National Trust & Savings Assn. (Cal. 1942, Traynor) concluded that it was not categorically improper to allow a new party to take advantage of findings in an earlier suit to estop a party who had litigated the issue in the prior action. (a) The party against whom estoppel was asserted had been a party to the first action and had had a full and fair opportunity to relitigate the issue. The court saw no reason to allow her to relitigate the decided issue by simply switching adversaries. (4) Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation (U.S. 1971) SCt endorsed use of nonmutual estoppel in the federal cts (a) Ct emphasized that preclusion was only appropriate if the precluded party had a full and fair opportunity to litigate in the first action (b) Lower cts have not construed this holding as limited to patent cases b) Defensive Nonmutual Estoppel i) Nonmutual because the party asserting the estoppel on the issue was not a party to the action in which the issue was first litigated ii) Defensive assertion of nonmutual estoppel is more easily justified than the offensive use of estoppel in Parklane iii) Defensive estoppel the party being estopped was usually the in the original suit and chose the forum and the against whom to initially litigate the issue (1) Rationale: hardly seems fair to bind the to the first resolution of the recurring issue c) Offensive Nonmutual Estoppel i) Usually involves a new who seeks to borrow a finding from a prior action to impose liability on a party who was a in the prior action (1) New uses finding against in a prior suit to establish a claim in a new suit against that ii) Parklane Hosiery Co., Inc. v. Shore (U.S. 1979) held that lower cts should exercise discretion in deciding whether to allow such offensive assertions of estoppel (1) If in doubt, the ct can deny estoppel.

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Glannon Outline iii) Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation ct in the second action must be convinced that the estoppel party had a full opportunity to litigate the issue in the first case. iv) Reasons for the cts to exercise caution in deciding whether to apply nonmutual collateral estoppel: (1) in the first action did not choose the forum in which the case was initially decided (2) Risks noted in Parklane (a) May lead to wait and see attitude by s hold back from joining in the first s suit (b) A party might not have litigated the issue aggressively in the first action if the stakes were small or the forum inconvenient (little incentive) (c) It may not have been possible for the losing party to litigate effectively in the first action if the procedural rules of the ct that decided the first case were more restrictive than those hearing the second (d) One or more prior inconsistent judgments on the issue may suggest that it would be unfair to give conclusive effect to any one of them. d) Nonmutual collateral estoppel is a form of collateral estoppel. i) It must meet all the basic prerequisites for application of estoppel ii) The court must also consider the additional factors to determine whether it would be fair to preclude relitigation of findings from the prior action in a new suit involving a new party. iii) While mutuality has been abandoned in the federal cts, some states still apply the doctrine. e) Examples i) Every litigant is entitled to DP of law before a ct adjudicates his rights. (1) Efficiency is outweighed by fairness ii) Bernhard nonmutual collateral estoppel party seeking in invoke estoppel was NOT a party to the suit in which the issue was initially litigated (1) Standard: did the party being estopped litigate the issue in the prior action iii) Mutuality doctrine confines estoppel to the parties to the original suit or those in privity with the original parties who actually litigated those issues (1) Jurisdictions that have abandoned mutuality: ct may allow use of defensive estoppel by a new party, so long as the party being estopped was a party to the prior action and litigated the issue there iv) Offensive estoppel party not in original action invokes a finding from the first action to establish an element necessary for recovery against the in both the first and second suits v) Parklane: HELD that the federal cts may apply offensive mutual collateral estoppel in situations in which a new invokes estoppel to establish an issue that was decided against the in the prior suit (1) Ct will NOT automatically bar relitigation: examine circumstances from first case (a) Adequate opportunity to litigate (2) Factors favoring application of estoppel (a) Serious injuries indicate strong incentive to defend action vigorously (b) Foreseeability of future suits from other s arising out of same accident (c) Same ct (federal? State?): not likely to be procedural advantages in the second suit that were not available in the first - 65 -

Glannon Outline (d) Absence of other factors suggesting unfairness (i) Procedural system in second suit more flexible (ii) More witnesses available in second suit that were unavailable in first (iii) deliberately decided not to join in order to get the advantage of nonmutual collateral estoppel w/o taking the risk of losing on the issue in the first action (burdens ct system w/additional litigation) vi) Nonmutual estoppel cases always discretionary (full and fair opp. to litigate)

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