Barbri: Civ Pro Review 1-4: in right court? 5: Fed court, diversity : what law?

6-7: relate to each other 8-9: related 1. Personal Jurisdiction (PJ) territorial jurisdiction, adjudicatory jurisdiction a. In Personam Jurisdiction: Two types i. Constitutional Limit: 1. Pennoyer v. Neff (1878): a. Gives us the traditional basis of J: i. Presence: D is served w/ process in the forum (general) ii. Ds agent is served w/ process in the forum (general) iii. D is domiciled in forum (general) iv. Consent, waivable defense b. Under Pennoyer, difficult to get J 2. Hess v. Polanski (1927) a. MA had a statute : if you drive auto in our state, you are appointing a state officer as agent for service of process b. SC upheld i. Consistent w/ Pennoyer, but expanded consent to include IMPLIED consent c. Every state has this today: non-resident motorist statute 3. International Shoe (1945): a. New doctrinal formula, not just pushing traditional basis: i. D has such minimum contacts w/ the forum so that J does not offend traditional notions of fair play and substantial justice. 1. Flexible, hard to define terms- has led to expansion of J 2. Can serve process outside forum as long he has minimum contacts 3. Seems to have two parts a. Contacts b. Fairness 4. Nowhere does this overrule Pennoyer, nor does it criticize Pennoyer a. Traditional basis exist alongside, only applies for when not present 4. McGee (1957): a. One insurance contract in CA b. Court uphold J over TX co in CA: i. D solicited contract from CA reached out ii. Relatedness: 1. P claim arose from Ds contact w/ forum iii. CA had an interest in having jurisdiction, relevant 5. Hanson (1958): a. Wealthy elderly woman in PA sets trust fund in DE bank, moves to FL, passes away litigation in FL

6.

7.

8.

9.

10.

b. Can DE bank be sued in FL? i. SC said no: 1. No purposeful availment a. D must reach out to state Word Wide Volkswagen (1978): a. Family lives in NY, going to move in AZ, buy new Audi, rear ended in OK b. J over manufacturer and importer, but not other two other Ds i. Regional distributor (only did biz in ny,nj,cn) c. CV motors (only biz in NY) i. No J b/c no purposeful availament (same as in Hanson) d. It is foreseeable that a car would get to OK, i. Foreseeablility is relevant, but not that the product would get there, but that D could get sued there Calder v. Jones (1984): a. Makes it clear that D does not have to set foot in forum to have minimum contacts there if they cause an effect i. Defamamtory article Burger King (1985): a. Contract case two franchisees in Michigan, get sued from BK corp in FL b. SC: there is J in FL: i. Court makes it clear that there are two parts to international shoes 1. Contacts 2. Fairness ii. Must have a relevant contact before fairness is even considered iii. Contacts is obvious in this case iv. Fairness: burden on the D to show that the forum is unconstitutional 1. Difficult to prove: grave inconvenience that you are at a severe disadvantage 2. Relative wealth of parties is irrelevant Asahi (1987): a. Stream of commerce: i. Make compotent is state A, sell it to someone in state B, person in state B puts compotent into a machine thatgets sold in state c, d, or e. ii. Do you have a relevant contact in state c, d, or e? 1. No answer: Split decision: a. Brennan theory (4): i. Is a contact if you put it into the stream and can reasonably anticipate it gets to the other states b. OConnor theory: i. Need stream of commerce PLUS an intent to serve other states Bhurnam (1990):

a. NJ D sued in CA b. Sued on claim arose in NJ, so CA would have to have general J c. Does traditional basis or service of process in forum survive, or has international shoe replaced? i. Scalia theory (4): 1. Presence is good on its own b/c of historical pedigree ( no need for Int. Shoe, b/c Shoe only applies if not served) ii. Brennan theory (4): 1. Always have to assess Int. Shoe, traditional basis not good on its own. iii. All 9 upheld that CA had J 1. Brennans opinion: anyone in CA for 3 days can be sued 11. General : a. Sued in forum for a claim that arose anywhere in the world b. Perkins and Helicoptoros c. Has GJ if D has continuous and systematic/substantial ties 12. Specific: a. Sued only a claim that arises in forum, has to have connection w/ activities in forum 13. RECAP of constitutional analysis: a. First thing for const/due process analysis: i. Does traditional basis for Pennoyer 1. If so, split from Bruhnam a. Inst. Shoe or trad basis sufficient ii. If you have to apply Int Shoe: 2 prongs: 1. Does D have a relevant contact w/ forum (2 things to assess) a. Purposeful availment (reach out) b. Foreseeability of being sued in forum 2. If relevant contact, then does J comport w/ traditional notions of fairness (factors): a. Relatedness: does this claim arise from Ds contact w/ the forum; if so, helps find J i. General or Specific?? ii. If no, then only General (continuous/systematic tie) b. 5 fairness factors: Burden on D to show that forum is unconstitutional (Burger king): i. What is the burden on D and witnesses ii. States interest (McGee) iii. Ps interest (maybe injured) iv. Interest in efficiency v. Interest in shared substantive policies:

vi. Kulco (1978): no J b/c to have J would be bad for family harmony vii. Otherwise, no decisions ii. Statutory Analysis: 1. Traditional basis 2. Non residents statutes: a. Non-resident motorist statute (Hess v. Polaski) b. Long-arm statute: i. Allows you to sue non-residents beyong auto accidents ii. Almost always specific J. 1. Out of doing something in forum c. Can sue if commission of a tort: i. Make a product in a, and sell in state B, blows up in B 1. Courts split on whether a tort was committed in B a. Did not do anything in state b b. Injury in state B, so tort in state B i. Illinois rule 3. Does forum state have a statute? a. Traditional basis? If no, then long arm statute b. Long arm statute: commission of tort i. Argue both ways: did not get made in state B, b c. If stature arguably met? i. No traditional basis, so no Burhnam analysis, go to Int. Shoe. ii. Int Shoe; 1. Relevant contact w/ Maryland? a. Purposeful availment? i. In this case, looks like Volkswagen, but if reaching out to forum, then looks more like McGee ii. Look at facts: b. Foreseeability? i. Product not enough, but if defective than maybe 2. Fairness: a. Relatedness: yes, arises from incident b. If you meet longarm, prob meet relatedness c. 5 facors: i. Burden on D (neighboring state) ii. States interest iii. Ps interest (P injured) iv. Efficiency v. Shared substantive policies (few about last 2 factors) b. In Rem and Quasi in Rem: property in forum (always prefer in personam) i. Difference: 1. In Rem: suit is about who owns property

2. Quasi In Rem: suit has nothing to do w/ lawsuit, could be any claim a. Ex: Pennoyer: i. Mitchell v. Neff: Mitchell could not sue Neff in personam, so sued QIR, but Mitchell did not have court attach property at the outset. 3. Court must attach property at the outset of the case (Pennoyer) ii. Process: 1. Attachment statute (all states have these): a. Can attach property that D owns of claims to own (IR/QIR0 2. Consitututional Test: a. Shaffer v. Heightner: i. Have to attach property at outset, but must also show that D meets International Shoe (makes const. test same as Int. Shoe 2. Notice a. Service of Process (FRCP 4): i. Process consist of summons and copy of the complaint 1. Summons symbolizes courts power over you a. 4(a)(1): what in summons ii. Service can be made by any non-party who is at least 18 iii. Service on an individual (4(e)(2)): 3 choices 1. Personal service 2. Substituted Service: a. Must be at the Ds dwelling/usual abode b. Must serve someone of suitable age and discretion who resides there c. Serve Ds agent 3. 4(e)(1): methods of states law (often service by mail_ a. Forum states law, or b. State where service is effected iv. 4(h)(1): Service on business/corporation 1. Officer or managing/general agent a. Manager/agent; someone w/ enough job responsibility 2. 4(e)(1): methods of states law can be utilized v. Waiver of service by mail: 4(d): 1. Waiver of service by mail 2. P will mail the process and an acknowledgment form (waiver form) to D, and put in self-addressed stamped envelope. D to sign and mail back if D does so, then waived formal service. 3. If D does not return waiver form, then must have formal service and the D pays for formal service b. Constitutional standard for notice: i. Mulane v. Central Hanover Bank (1950): Must be reasonably calculated under all the circumstances to apprise the party of the proceeding ii. Everything under Rule 4 is constitutional, even if D got actual notice iii. Jones v. Flowers (2003): if you become aware that it was not received, you may have to pursue other means. 1. Govt kept getting returned, so may have to at some point try another method 3. Subject matter Jurisdiction (SMJ): What court do we go to in the state? State or Federal? a. Diversity of citizenship 1332(a)(1):

i. Case between citizens of different states: 1. Complete diversity rule: no diversity if any P is citizen of the same state as any D. Cannot have same state on other side of D/P line (can have on same side of line 2. Citizenship of a human being (natual person) (one state) a. US citizen is a citizenship of state where domiciled i. Establish a Domicile (given at birth, can change at 18): 1. Physical Presence 2. Intent to make it your permanent home a. HAVE ONE DOMICILE AT A TIME, retain it, even if leave state, until you meet both requirements, and change it. 3. Citizenship of a corporation 1332(c)(1): (2 states at most) a. Citizen of state where incorporated and the state of principle place of business (PPB) b. A corp. can be a citizen of two places: both were incorporated and where PPB is. i. Hertz (2010): 1. PPB is companys nerve center: place from which the biz is directed, usually headquarters (only one PPB/biz) 2. Before case, split a/ PPB (nerve center v. muscle center) 4. Citizenship of unincorportated businesses (LLCs, partnerships): (can be citizen of all states) a. Governed by case law: look to citizenship of all of its members i. Partnership: look to where partners are from 1. Ex: teamsters a citizen of every state ii. Amount in controversy: 1332 1. Must exceed 75K a. Claim itself, not cost of litigation 2. Ps claim governs unless it is clear to a legal certainty that she cannot recover more than 75K a. Very unlikely i. Ex: statutory cap on damages 3. Aggragation: a. Where we must add multiple claims to get over 75K b. Rule: aggragate Ps claims if there is one P over one D i. No limit on # of claims, do not have to be related in any way ii. Cannot aggragate if there are multiple Ps or multiple Ds c. If a joint claim, then look at total amount of claim, and # of parties is irrelevant (sue 3 parties for beating you up) b. Federal Question (1331) (FQ): i. Case must arise under federal law (Citizenship and amount in controversy irrelevant) ii. Well-pleaded complaint rule: to figure out if a FQ complaint, only look at Ps complaint look only at claim itself, ignore all else. 1. Louisville RR v. Motley(1908) a. Got lifetime passes for RR in settlement

b. Congress passes a law that says; RR cannot give away free passes c. Motleys sue RR i. Claim: (2 things) 1. Breaching the contract 2. New Fed law doesnt apply to us ii. Under well-pleaded complaint rule: does not conform to well-pleaded complaint rule, so no FQ iii. Is P enforcing a Federal Right? c. Supplemental Jurisdiction 1367: i. Case is already in fed court; in that case, there is an additional claim ii. For all cases, there has to have subject matter jurisdiction: 1. For all claims in Fed court: does it invoke diversity or FQa. What if an additional claim does not: may get the claim in by supplemental jurisdiction iii. United workers v. Gibbs (1986): 1. Labor dispute in Appalachia, KY a. P-TN D-TN (2 claims arise from same event, but legally different. Claim 1: FQ: Fed labor law; Claim 2: State law) i. Claim1: FQ ii. Claim 2: no diversity, no FQ, but can go into fed court b/c of supplemental J. b. Can hear claim 2 if part of same case as claim 1: shares a common nucleus of operative fact. same transaction/occurrence (T/O); if meet T/O, then meets common nucleus iv. Non-diversity FQ: 1. Does 1367(a) grant supp J? a. Yes, if it meets Gibbs (T/O) 2. Does 1367(b) take away supp J? a. Applies only in Diversity Cases (never in FQ) b. Kills supp J only over claims by Plaintiffs in these cases: i. By Ps against parties joined under Rules 14, 19, 20, or 24 ii. Claims by Rule 19 Ps iii. Over claims by Rule 24 Ps (intervener plaintiffs) d. Removal Jurisdiction: i. Removal: Allows a state court D to have a state court case transferred to Fed court ii. 1441, 1446, 1447: all statutes that govern removal iii. Rules: 1. Removable if meets FSMJ (FQ/Diversity) a. EXCEPTION: cannot remove a Diversity case if any D is a citizen of the forum b. Must have unanimity of agreement c. Do not need permission, file a notice of removal d. Can only remove t o Fed District that embraces the state court 4. Venue: a. Basic Rules of Venue (1391(a)(1-2) and (b)(1-2): i. You can lav venue in any district where ALL Ds reside

1. If all Ds reside in diff districts of the same state, then you can lay venue where any of them resides 2. *** Reside (not same as citizenship): a. For individual, resides = domicile b. For a business 1391(c), biz resides in every district where it is subject to personal J when a case is filed. i. ***Diff than a corps citizenship; citizenship is SMJ and residence is venue ii. Lay venue in any district where substantial part of claim arose b. Transfer of venue: i. One court to another in the same judicial system (diff than removal) 1. Transferor: Sender 2. Transferee: one in which we send the case ii. Two venue transfer statutes: 1. ***Transferee must be a proper venue and must have PJ (must have to be true independently/o waiver) 2. 1404(a): applies when transferor is a proper venue one proper venue to another proper venue a. Convenience of parties and witnesses b. Center of gravity i. Public factors ii. Private factors 3. 1406(a): applies when transferor is an improper venue: a. Can transfer or dismiss c. Forum non convenience: not about transfer, but where a court dismisses b/c there is another court that is the center of gravity i. Only dismiss if transfer is impossible 1. Dismiss only if other center of gravity court is in a different judicial system ii. Piper Aircraft v. Reynor: 1. Plain crash in Scotland, all people killed, airline is Scottish, but plane manufactured in PA 2. Litigation in PA a. SC said PA should dismiss, b/c center of gravity in Scotland b. No anguish, punative damages, but ok to dismiss even if damages will be much less 3. Footnote 6: lists public and private factors in determining whether other court is center of gravity for case, same factors as in a 1404 transfer 5. Erie Doctrine: a. Generally only comes up in Diveristy cases: i. Fed judge must decide AN ISSUE and question is: in deciding the issue, must a Fed judge follow state law, or is she free to ignore state law ii. Erie RR v. Tompkins: 1. Fed court must apply state substantive law a. Compelled by two things: i. Rule of Decision Act (1652) (RDA) ii. 10th amendment 1. Except for powers given to fed govt, then state retains them 2. Unconstitutional usurpation to ignore state law 2. What is substantive?

a. Elements of a claim are pure substance, and a fed judge must apply them i. Analytical Framework: 1. First Step: Hannah v. Plummer (1965) a. Does a fed directive apply to this issue (Statute, FRCP)? i. If yes, then apply fed directive if valid. Trumps state law. ii. Based on supremacy clause: If fed law on point, then fed law wins b. Rules enabling Act 2072 : Shady Grove: 2. Second Step: If no federal directive on point, Apply Erie: 3 tests under Erie test (dont know how 3 interrelate, so apply all three) a. Outcome determinative i. Guaranteed Trust: substantive is outcome determinative. ii. If we ignore state law, will outcome be different? b. Balancing the Interest: i. Bird: Under state law, particular Q has to be decided by judge, not jury ii. Ordinarily: will apply state law unless there is a fed interest in doing it differently, can ignore state law c. Twin Aims of Erie (**most important): i. Comes from Hannah: ii. To avoid: 1. Forum shopping and 2. The inequitable administration of the law iii. Ask one question at the outset: If the Fed judge ignores this state law, will it lead to forum shopping, will it lead people to federal court inequitable admin of law ii. Hypo: state leg worried health care too expensive, passes a statute that says if you sue a dr, the case must go to arbitration before you go to jury trial. If you do not like result, then you can go to jury trial, but jury told of result of arbitration. Diversity case does case have to go to arbitration? Federal directive? NO, then an Erie case. Outcome determinitative: Who knows? , Balance the interest: important state policy, no fed policy that trumps it. Twin Aims: if fed judge ignores state law, will it lead to forum shopping? Yes , so to avoid twin aims, use state law b/c state law substantive.

6. Pleadings: Documents that parties file a. The Complaint: case in Fed court commences when filed i. 8(a): three requirements must be met: 1. (1) Statement of SMJ 2. (2) Short and plain statement of the claim a. Historically, did not need much detail, could be fairly conclusory, until two decisions: i. Twombly and Icbal: 1. P must plead facts supporting a plausible claim a. More than just possible, conceivable 2. Court will ignore conclusions of law a. d conspired, was reckless ignored 3. Court will use its own experience and common sense to assess plausibility a. Up to each judges common sense to determine whether allegation is plausible b. #3 things you have to allege in particular specificity i. 9(b): Fraud or mistake must be pleaded w/ particularity ch and verse ii. 9(g): Special damage: type of harm that does not normally flow from that kind of event 1. Ex: car accident: permanent erection 3. (3) demand for the relief sought a. Damages, injunction. b. Defendants response: i. Rule 12: Must respond by Motion or Answer w/in 21 days after service of process 1. Motion is not a pleading, an answer is a. Motion is a request for a court order b. Rule 12(e): more definite statement rare c. Rule 12(f): strike improper d. ***Rule 12(b): 7 defenses can be raised by motion or by answer, but timing matters i. SMJ ii. PJ iii. Venue iv. Insufficient Process problem w/ documents (fairly unusual) v. Insufficient Service of Process docs ok, but not served correctly vi. Failure to state acclaim vii. Failure to join a Rule 19absentee (indispensible party) e. Rules 12(g) and 12(h) together mean 3 things i. Waivable defenses: 12(b)(2, 3, 4,5) must be in 1st Rule 12 response (whether an answer or motion) ii. 12(b)(6,7) can be raised any time through trial (not in appeal) iii. 12(b)(1): can be raised any time 2. Answer is a pleading; 2 things you must do in answer: a. Respond to the complaint (Rule 8(b)): only three responses:

i. Admit ii. Deny 1. Failure to deny is an admission a. On any allegation but damages iii. Do not know 8(b)(5) b. Rule 8(c): List all affirmative defenses i. Affirmative defenses are different from denials 1. D is injecting a new fact ii. If you fail to claim affirmative defense in answer, probably waived them burden on D 7. Joinder: Determine how big a case can be, and tests SJM (all fed court claims) a. Claim Joinder by the P i. Rule 18(a): P may assert any claims against the D, no limit, do not have to be related in any way, but permissive, not required 1. After P decides what claims are going to be, see if claims invoke diversity or FQ b. Claim Joinder by the D: D is going to sue somebody i. Counterclaim: 1. Rule 13(a,b): Claim against an opposing party someone that has sued you. 2. Two Kinds (Procedural, but still need to assess SMJ): a. Compulsory counterclaim 13(a)(1): i. Arises from same T/O as Ps claim ii. Must file claim in pending case, or it is waived iii. *** Only compulsory claim b. Permissive counterclaim 13(b): i. Does not arise out of same T/O of Ps claim ii. Permissive 1. Hypo: If compulsory counterclaim (same t/o, opposing party); then go to SMJ? (counterclaim of 45K supplemental jurisdiction? Yes- meets Gibbs by definition; does 1367(b) take away supp J (only applies to diversity claim) does not apply to claims by Ds) 2. Should never mention supp j once diversity/FQ discussed. ii. Crossclaim: 1. Rule 13(g): Claim against a co-party a. Must arise from same T/O, but it is not compulsory i. Hypo: 3-way car crash. A (PA) files against B(NY),C (NY). All claims more than 75K. What claims may C assert? 1: Must file a compulsory counterclaim against A (same T/O; opposing party) SMJ? Yes, Diversity. No need for supp j if you have diversity. C may file a crossclaim against (co-party; same T/O) SMJ? No diversity (NY-NY) Supp J? 1367 Gibbs- yes. Killed by B? No, even though diversity case, only kills for claims of Ps) c. Proper Parties: i. Rule 20(a): Who may be joined 1. Tool for the P

2. Use for multiple Ps or multiple Ds a. Rule 20(a)(1): Plaintifs can join together if: i. Arise from same T/O ii. Raise at least one common question b. Rule 20(a)(2): Join co-Ds if: i. Arise from same T/O ii. Raise at least one common question 3. SMJ??? d. Necessary and Indispensable parties: i. Rule 19: who must be joined: 1. Is A(absente) necessary/required? a. Yes, if meet any of three tests: i. Rule 19(a)(1)(a): w/o A, can the court accord complete relief efficiency almost always met; multiple litigation if not brought in? ii. ***Rule 19(a)(1)(b)(1): As interest may be harmed if she is not joined iii. Rule 19(a)(1)(b)(2):: As interest may subject the D to inconsistent obligation. 2. Can A be joined? Is joinder feasible? a. PJ, and b. Diversity will not be compromised 3. Absentee is necessary, but cannot be joined (b/c no jurisdiction: a. Rule 19(b): two choices: i. Court must either proceed w/o you or ii. dismiss the case b. 4 factors: should not dismiss the case unless there is another forum c. 12(b)(7): Failure to join an Indispensable party e. GET THESE NOTES f. Intervention: joining someone new i. Rule 24: Absentee chooses which side to come in on ii. Intervention of Right: Rule 24(a)(2): Right to intervene a. ****Intervener must show that her interest may be harmed if she is not joined i. Exactly the same as 19(a)(1)(b)(1): Necessary parties: 1. 19 used by D, 24 used by absentee party b. Her interest is not adequately represented now c. Must have SMJ g. Class action: Rule 23: Rep. sues on behalf of the class i. Prerequisites: Rule 23(a): all must be met (4): 1. Numerosity: too numerous for practicable joinder a. No magic # 2. Commonality among all people in class a. Never going to be a problem 3. Typicality: Reps claim must be typical of those of the class 4. Rep is adequate: bound by what rep does ii. Rules of Class Actions: 1. That common questions predominate 2. Class Action is the superior way to handle the dispute 3. Not a class action until the court certifies it

a. If court agrees to certify , then court must appoint class counsel (rule 23(g) 4. Notice of pendency: In the b(3) class action, the court must give individual notice to all members reasonably identifiable. a. Notice not necessary for b(1) or b(2) b. Rep has to pay to give notice c. After notice, can opt out 5. All members bound by the judgment, except those that opted out of a b(3) (no opt out of b(1) and b(2) mandatory) 6. Settlement must be approved by the court 7. SMJ: how do you get a class action into fed court? a. Diversity Class action: i. Citizenship: look only about Rep, not class members, and the Rep must be diverse from every D to have diversity ii. Amount in controversy (split in authority until 2005): Reps claim must exceed 75K, do not look at class members 8. Class Action CAFA: open fed courts widely to class actions a. 1332 d(2): can invoke if any class member is diverse from any d, and total class claims exceed 5mill b. Makes it easy for a D to move remove from state court to fed court 8. Discovery: No surprises at trial, rules amended in 2006 for ESI (electronically stored information to be treated like documents): a. Rule 26(a): Required disclosures: i. Must provide info even if nobody asks you for it ii. Initial required disclosures ***(Rule 26(a)(1): 1. People and docs/esi that has discoverable info you may use at trial iii. Rule 26(a)(2): expert testimony iv. Rule 26(a)(3): pre-trial disclosure of everything to be raised at trial so to have no surprises. b. Discovery Tools: i. Deposition (Rule 30): sworn oral testimony (under penalty of perjury) 1. Can depose a party or non-party, but must subpoena the non-party ii. Interrogatories (Rule 33): Written questions answered in writing under oath 1. Can only be sent to parties, not non-parties iii. Request to Produce (Rule 34): 1. *Rule 34(c): Can use to get info from non-party, but must subpoena iv. Medical exam (Rule 35) 1. Unique b/c need a court order, otherwise would be a tool for harassment 2. Available for parties or people in a partys control (narrow, basically parent/child) v. Request for admission (Rule 36): demand that another party admit/deny any discoverable matter 1. Failure to deny is an admission 2. Can only go to parties, never non-parties c. Scope of Discovery: Rule 26(b)(1): anything relevant to a claim or defense (broad): i. Can discover so long as it is reasonably calculated to lead to admissible evidence ii. Discoverable is broader than admissible iii. Not w/o limit: Cannot get privileged material, which is rptected from discovery:

1. Evidentiary privileges: confidential communications (only a few): a. Attorney/client b. Spousal c. Work Product/Trial Preparation material Rule 26(b)(3): not discoverable (different than attorney/client) i. Stuff prepared in anticipation of litigation; not simply routine stuff ii. Anti-Free-Rider rule iii. ***Not absolute: can over-ride: must show 1. Substantial need 2. Info not otherwise available iv. But, cannot get certain things: Mental impressions, conclusions, and legal theories v. **Work Product does not have to be generated by a lawyer! 9. Pre-trial adjudication: get rid of case w/o going to trial a. 12(b)(6): Failure to state a claim (state courts call demurrer) i. Court does not look at evidence ii. Just looks at complaint iii. If everything here were true, would the P win? 1. If answer is No, then no point in litigating iv. Icbal/Twombly require you plead facts that support a plausible claim 1. Points out sloppy pleading, usually w/o prejudice b. Rule 56: Summary Judgment: i. Stated a claim, but no need for trial ii. Why go to trial? 1. Resolve disputes of fact 2. So, if Summary Judgment shows there is no dispute of fact, then entitled to judgment as a matter of law. iii. Where does the evidence come from? 1. Proffered by the parties 2. Evidence: sworn statements/signed to under penalty of perjury a. Affidavits b. Depositions c. Answers of interrogatory d. DOES NOT INCLUDE PLEADINGS i. Not signed by parties ii. Unless verified pleadings, which as signed iii. Can use pleadings for something not denied as part of evidence 3. Court puts all evidence together: IS THERE A DISPUTE ON A MATERIAL ISSUE OF FACT. a. If no, then no trial necessary b. Always w/in courts discretion to allow summary judgment 10. Trial: resolve disputes of fact a. Right to a jury (7th Amendment): i. Applies only is federal civil cases ii. 7th amendment PRESERVES the right to a jury 1. Preserves the right in actions at LAW NOT EQUITY a. Preserves: does not grant/create a right, but preserves, therefore, locked in to a historical test

b. Back to 1791 England: i. Separate Law and Equity courts 1. Difference in remedy a. At Law: Compensatory Damages ($) b. At Equity: Damages do not make whole, so equity provides another rememedy: i. Injunction (enforced in personam would be arrested) ii. Specific Performance iii. Reformation iv. Recission v. To this day, to get these remedies, but prove that damages do not make you whole. ii. Traditional view was all or nothing, not how we do it today because of two cases: 1. Beakon Theaters (1959) and Dairty Queen (1962) a. Three Rules: i. Assess Jury Right Issue by Issue ii. Question of fact underlies law and equity, you get a jury iii. Will try jury issues first, then try purely equity issues to judge b. Each side gets unlimited strikes for cause (bias, relatedness) i. Each side gets three peremptory strikes ii. Historically, never had to give reason for peremptory strike 1. Cases in the 1990s: SC made clear that peremptory stikes must be used in race and gender-neutral way c. Motions: i. Motion for judgment as a matter of law: Rule 50(a) (was directed verdict) 1. Judge watches all evidence coming in and determines if reasonable people could not disagree on the result, therefore grant JMOL 2. Cannot make motion until other side has been heard on trial 3. Difference btwn summary judgment is it comes up in trial 4. *Must have a motion ii. Renewed Motion for judgment as a matter of law: Rule 50(b) same as JMOL, just comes up later 1. Happens when JMOL was denied, and goes to jury 2. Jury reached a conclusion that a reasonable person could not have reached 3. To move for RJMOL, must have moved for JMOL at trial 4. Must have a motion iii. Motion for new trial: Rule 59(a)(1) 1. Court feels that there was something wrong at trial, so judge allows for new trial 2. Limitless rounds, anything that judge is not comfortable w/ and wanting to start over 3. Less drastic than RJMOL, b/c new trial v. giving victory to the other side under RJMOL

11. Appeals: a. Final Judgment Rule: i. Cannot appeal until there is a final judgment ii. After judge enters order, does she have anything left to do on merits of the case: 1. If yes, not final judgment 2. If no, then can appeal 3. If judge orders a new trial, then cannot appeal b. Interlocutory Appeal (non-final): i. Statutory: 1. 1292(a): injunctions 2. 1292(b): allows trial court and court of appeals to agree to let you appeals certain issues ii. FRCP: 1. Rule 23(f): gives court of appeals discretion to hear appeal about class certification 2. Rule 54 (b): cases w/ multiple claims or multiple parties: allow ruling of one of those as final, and lets you appeal iii. Common Law: 1. Collateral Order Rule: a. Gives court of appeal discretion to hear an appeal on an issue that is collateral to the merits b. Must show that this is effectively unreviewable if I have to wait till final judgment few issues that will qualify i. Ex: 11th amendment: makes a state immune in federal court 12. Claim and Issue Preclusion (Res Judicata): a. Case 1: gone to judgment, Case: 2 is pending. Does the judgement in case 1 preclude us from litigating in case 2. Matters which goes do judgment first b. Claim Preclusion (always start w/ claim preclusion) AKA Res Judicata i. If you have a claim, you get to sue one time on a single claim ii. Three elements of claim preclusion: 1. Show both cases were brought by the same claimant against the same D 2. Case 1 must have ended in a valid, final judgment on the merits a. Rule 41(b): everything is on the merits unless based on Jurisdiction, Venue, or indispensable Parties 3. Both cases asserted the same claim a. Two definitions of claim: i. Majority view (fed law): Claim is T/O, cannot sue 2x on same transactions ii. Minority Rule: Primary Rights: you have a separate claim for each right invaded, even if from same transaction (Carter v. Hinkle) 4. Examples: Case 1: lois v. meg, injuries; final judgment entered; Case 2: lois v. meg for property damage from same crash. Element 1,2 met; but split on same claim, but majority view is yes, b/c same transaction, but under minority rule, we do not dismiss. 5. Example: No claim preclusion for meg v. lois, then lois v. meg b/c of 13(a)(1): compulsory counterclaim, not b/c of claim preclusion. c. Issue Preclusion: narrower than claim preclusion i. Focus on an issue, which was decided in case 1, same issue comes up in case 2, but b/c already litigated, do not want to litigate the same issue again

ii. Elements: 1. Case 1 ended in a valid, final judgment on the merits (same as claim) 2. Must show that same issue was litigated in case 1 3. Issue must be essential to judgment in case 1 4. Against whom is preclusion used? a. Can only be used against somebody who was a party to case 1 required by due process (includes someone represented by a party) 5. By whom is preclusion asserted? a. Starting point: Old Mutuality Rule (courts can reject mutuality): i. Can only use it if you were a party to case 1 b. Majority View Today: allow non-mutual preclusion: i. Used by someone in case 2 who is not a party in case 1. 1. Non-mutual Defensive: a. D in case 2 b. Ok, so long as party used against had opportunity to fully litiagate in case 1 2. Non-mutual Offensive: a. P in case 2 b. Strong trend that allows this: c. Parklane Hoisery i. OK, as long as it is fair ii. Fairness factors (no idea how they fit together): iii. 1. Party against who you are suing had full chance to litigate in case 1 iv. 2. Party against who you are using could foresee multiple suits v. 3. Show that you could not have easily joined in case one (dont know what easily means) vi. ****No inconsistent judgments