SUBJECT MATTER JURISDICTION CHOOSING BETWEEN FEDERAL AND STATE COURT Does the have the option of suing

ing in federal court? 28 U.S.C. 1331 Federal Question Usually apparent on face of complaint due to reference to federal law. Apply well-pleaded complaint rule when not apparent Elements 1. Identify essential elements of s claim and then ask . . . 2. If established each of these elements, would she establish a violation of some federal law? 28 U.S.C. 1332(a) Diversity Jurisdiction Two Requirements 1. Complete Diversity Defined: Every plaintiff must be of diverse citizenship from every defendant Natural Persons: To be a citizen of a state a human must be; A citizen of the United States; and Domiciled in that State Domiciled Is that place where a person has her true, fixed, and permanent home and principal establishment, and to which she has the intention of returning whenever she is absent therefrom. A natural person can never have more than one domicile Changing ones domicile

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Elements (1) Establishing physical presence in the new state with; (2) The subjective intent to make that state her domicile 2. Amount in controversy must exceed $75,000 w/out interest and costs s good faith allegations controls Must appear to legal certainty that claim is really for less. Legal Certainty Test Supreme Court has established that the s good faith allegation that the jurisdictional amount It is satisfied controls UNLESS it appears to be a legal certainty that he claim is really for less than the jurisdictional amount. 28 U.S.C. 1332 (c) Corporations Corporations No corporation can have more than one principal place of business. A corporation, unlike a human, can be a citizen of more than one state at a time Principal Place of Business Nerve Center Test The corporations decision-making activity (e.g., Headquarters) Change of Citizenship Incorporated in a new state; or Relocate principal place of business Alienage Corporations A corporation formed in another country but with its principal place of business in the United States is considered a citizen of the state in which it has its principal place of business; and A corporation formed in the United States but having its principal place of business in a foreign country is considered a citizen of the state in which it was formed. 28 U.S.C. 1332(c)(2) Alienage Jurisdiction (single /) LPRA v. Citizen of Same State

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Ex: -FL (LPRA)-------FL Alien v. Alien Ex: -CAN--------CAN Citizen of State v. Alien (or vise versa) FL--------CAN 28 U.S.C. (c)(3) Alienage Jurisdiction (multiple /) Alien v. Citizen of State + Alien Ex: CAN---------GA + ENG Citizen of State v. Citizen of State + Alien Ex: FL--------GA + CAN Citizen of State + Alien v. Citizen of State + Alien Ex: FL + ENG----------GA + CAN Aggregation Defined: The adding together of two or more claims to meet the amount in controversy requirement Rule (1) Single v. Single - can aggregate the value of claims Rule (2) Single v. Multiple s cannot aggregate claims. Exception In multiple party scenario If the claims are joint or common and undivided, the courts permit aggregation Rule (3) Multiple s v. Single or Multiple s - s cannot aggregate claims.

Can remove the case to federal court? 28 U.S.C. 1441(a) and (b) provide that a civil action brought in a state court can be removed to the district court for the district embracing the place where such action is pending so long as the dispute between the parties falls within the original jurisdiction of the federal courts. The only limitation being that the cannot be a citizen of the forum state when the sole basis for original jurisdiction is the parties diversity of citizenship. Procedure for removing the case to federal court.

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28 U.S.C. 1446 (a), (b), and (d), provide, in turn, that the must file a notice of removal in the appropriate district court within thirty (30) days after receipt of the complaint; provide written notice of removal to all other parties; and file a copy of the notice of removal with the pertinent state court. 28 U.S.C. 1446 (a) Notice of removal filed in geographically proximate federal court, duplicate set of state court papers filed in federal court, and a copy of notice of removal filed in state court and served on the other parties. (b) Time to Respond 1446(b)(2)(A) Must obtain consent from other s Example Hypo - All s who have received the complaint AT THE SAME TIME must all consent to removal. However, what if s receive complaint at different times? FL-----1-NY receives complaint on 01/01/11. -1-NJ receives the complaint on 01/04/11. -3-MO receives the complaint on 01/07/11. -1 can remove without -2 or -3s consent PRIOR to 01/04/11. -1 and -2 cant remove without -3s consent ON OR AFTER 01/04/11 -1, -2, -3 cannot remove without ALL others consent ON OR AFTER 01/07/11 (Unanimity Rule - 1446(b)(2)(A)) 1446(b)(2)(B) - s Time for removing to federal court 30 days from receipt of Complaint. 1446(b)(2)(C) Later served can remove even if earlier severed did not. However, earlier served must still consent to removal. . (d) Promptly after the filing of such notice of removal of a civil action the or s shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court.

Procedure in federal court following removal to federal court 28 U.S.C. 1447 Procedure after Removal Generally (c) Provides that a motion to remand the case on the basis of any defect other than lack of subject

matter jurisdiction must be made within 30 days after the filing of a notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks SMJ, the case shall be remanded. A case must be remanded whenever it is discovered that there is no subject matter jurisdiction. If the case in which jurisdiction is lacking, was filed originally in federal court, the case is DISMISSED. If the case in which jurisdiction is lacking was filed originally in state court and removed to federal court, the case is not dismissed but is REMANDED to the state court. (d) An order remanding a case to the State court from which it was removed is not reviewable on appeal. (i.e., cannot appeal a decision remanding a case). (e) If after removal the seeks to join additional s whose joinder would destroy SMJ, the court may deny joinder, or permit joinder and remand the action to the State court.

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 The court may deny joinder or permit joinder and remand the action to the state court. Thus,

almost every case removed from state to federal court will be one over which there is concurrent subject matter jurisdiction, which means that both the state and federal courts systems can properly entertain the claim.

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----------------------------------------------------------------------------------------------------------------------------------------------PERSONAL JURISDICTION Basic Points The forum must have power over the or her property to enter binding order to the If it does not have such power over or her property, any order entered by the court is void The analysis of whether the forum has power in this sense is the same whether the forum is a federal court or a state court A court always has personal jurisdiction over the because the has invoked its jurisdiction. Thus, has waived any objection as to whether the court lacked power over her. A may waive an objection to a courts lack of power over her and permit a court otherwise lacking personal jurisdiction to enter valid orders to her. In Personam Jurisdiction In General Focuses on which state courts, or which federal courts from among the various state and federal courts around the county with SMJ, is the appropriate court to decide a particular claim against a particular . Defined

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The authority of a COURT in a particular PLACE to decide a particular CLAIM against a particular . Traditional Bases for IPJ (Natural Persons) (1) Presence Service of Process on while physically present in the forum state Permits exercise of general IPJ Exceptions enters State as a result of force or fraud is immune b/c attending judicial proceeding Applies to parties, lawyers, witnesses Immunity is not a right, court can withhold Applies to Natural Persons only (2) Consent Pre-Litigation Contractual agreement by to defend future suits in forum state Allows for exercise of General IPJ Applies to Natural Persons and Corporations (3) Waiver Post-litigation waives objection to IPJ by initiating lawsuit waives w/ respect to her claims waives w/ respect to claims back to her waives objection to IPJ by failing to do so timely Allows for exercise of general IPJ Applies to Natural Persons or Corporations

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(4) Domicile s status as domiciliary of the forum state Applies to resident domiciliaries Applies to non-resident domicilaries Permits exercise of general IPJ Applies to Natural Persons ONLY Corporations subject to jurisdiction in State of Incorporation State of incorporation domicile

Full Faith and Credit A valid judgment in personam against a creates a personal obligationa debtthat the is entitled to recover from the . Example: v. in a Kansas court for a judgment of $100,000. has no money so the court seizes the s house and the property only fetches $60,000. finds out that has property in Florida. That means that a can have the Florida court domesticate the Kansas judgment and enforce it by seizing the s property in Florida and selling it at public auction to raise the remaining amount due--$40,000. Specific v. General Jurisdiction General Term that refers to the exercise of IPJ over a with respect to a claim that arises out of the s activities any where in the world. Requirements Traditional Basis Natural Persons Presence Consent Waiver

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 Domicile Traditional Basis Corporations Consent Waiver State Incorporated Continuous & Systematic activities in the State (C&S) Continuous = Uninterrupted in Time Systematic = Methodical in Plan Pervasive contacts Think Starbucks Marketing products in the forum Performing services in the forum Maintaining an office in the forum Reasonableness (Applies only to Corporations) Interest of in avoiding burdensome litigation Interest of in obtaining convenient / effective relief Interest of forum state in adjudicating dispute Interest of ALL courts in efficient dispute resolution Social Policies Specific Term that refers to the exercise of IPJ over a with respect to a claim that arises out of or is related to the s forum state activities (1) Long-Arm Statute facially reaching s alleged conduct Carrying on business within state Committing a tortious act within state Causing injury inside from act/omission outside

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engaged in solicitation activities in state s products swept in by stream of commerce Breaching contract by failing to perform in state (2) has purposeful contacts with the State Contacts that result from volitional acts by the Purposeful availment Contacts that create a reasonable expectation of suit (3) s contacts give rise to or are related to claim s contacts give rise to s claim The Contact that is the event forming" basis of the claim s contacts relate to s claim Substantive Relevance test Brilmayer Approach But-For test Brennan Approach (4) Reasonableness Interest of in avoiding burdensome litigation Interest of in obtaining convenient / effective relief Interest of forum state in adjudicating dispute Interest of ALL courts in efficient dispute resolution Social Policies

Statutes Non-resident Motorist Statute Based on implied consent and allows only specific jurisdiction Long-Arm Statute Permits the State to exercise its power outside the state lines.

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Enumerated Acts Statute Identifies categories of activities that will subject a person to IPJ IPJ over with respect to any cause of action arising from: A Tortious Act within the State Transacting any business with the State Blanket Statute IPJ over the to the fullest extent permitted by state and federal constitutions Example Statute in Cal. It simply provides that the court of the State can exercise jurisdiction over a nonresident to the full extent of the Constitution Unless and until a state enacts a long arm statute the courts of that state will not be able to rely upon IPJ. Once a long-arm statute is enacted, the court can use the minimum contacts test to satisfy IPJ. Collateral Attach is an attack on IPJ that challenges a courts exercise to IPJ that doesnt occur in the original state. Direct Attack is an attack on IPJ that challenges a courts exercise to IPJ that does occur in the original state. ---------------------------------------------------------------------------------------------------------------------------------------------- FINAL EXAM essay over IPJ First Look to the Traditional Basis to see if you can establish General IPJ over . Natural Persons Presence Consent Waiver Domicile Corporations Consent Waiver

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 State of Incorporation If you cannot, then move to the next step Long-Arm + Minimum Contacts = Specific IPJ Must Ask: Long-Arm Statute (1) Does LAS facially reach s alleged Conduct? Florida Long-Arm Statute (1) IPJ over (whether a resident or non-resident) with respect to cause of action that arises from any of the following . . . (1)(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state (i.e., conducting business in the forum state) (1)(b) Committing a tortious act within this state (1)(f) Causing injury to persons or property within this state arising out of an act or omission by the outside this state, if, at or about the time of the injury, either: 1. The was engaged in solicitation or service activities within this state, or 2. Products, materials, or things processed, serviced, or manufactured by the anywhere were used or consumed within this state in the ordinary courts of commerce, trade or use. (1)(g) Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state Minimum Contacts (2) Does have purposeful contacts with the forum State? Rule/Hanson Purposeful Availment: must have purposefully availed itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws The only contacts that will count for purposes for establishing IPJ are those that are created intentionally by the . Watch out for unilateral activity by the Hansons Importance Only the s purposeful contacts count for purposes of a minimum contacts analysis Unilateral activity of those who claim some relationship with cannot satisfy the requirement of contact with the forum state

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Donner, who moves to FL, does not thereby create a connection between Trust Co. and Florida CardiacUF came to them and requested the heart valves (not the other way around) Purposeful = Volitional must choose to engage in forum activities, directly or indirectly Adhesivecreated a 5 year contract with a corporation in FL (First Coast), thus invoking the benefits and protections of its laws. Minimal burden on cannot trump absence of purposeful contacts

(3) Does s claim relate to s purposeful contact with the Forum State? Rule/International Shoe: Due process requires only that in order to subject a to a judgment in personam, if he were not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial injustice. Minimum Contact Test Elements The level of activity of the in the forum; and Whether the claim asserted against the is related to the s activities in the forum (1) Substantive Relevance test Brilmayer Approach Whether or not the forum activity is relevant to resolving the merits of the dispute? Cardiac and Adhesivewould the 15 sales or the 5 year contract have any effect on whether there was D,B,C,I in relation to Connellys death? No. The only contacts that count for IPJ are those that will have an outcome on whether who wins or who loses in a lawsuit. (2) But-For test Brennan Approach Would the ultimate event that is key to the lawsuit have occurred in the absence of the forum states activity? Cardiac and AdhesiveConnelly would still have died even if the 15 Sales (Cardiac) or the activities between Adhesive and First Coast (5 year contract) would have occurred. (4) Is exercise of jurisdiction reasonable using five specific factors? RuleWorld-Wide Volkswagen (1) s interest in avoiding burdensome litigation in a distant place.

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 Contracts (2) States interest in adjudicating dispute? If the events occurred in the state, the forum state will always have an interest in adjudicating dispute (3) s interest in convenient and effective relief? May derive from the fact that the forum state is the s home, so the forum state is where the is able to seek the relief she desires. (4) Interstate judicial systems interest in efficient resolution of controversies? Look for something in the fact pattern that the has not consolidated her dispute; instead she has spread the s in the dispute. (5) Interest of several states in furthering fundamental substantial social policies? Refers to the assessment of which states substantive policy interest is at stake in the litigation, a factor that can take on greater significance if the interests of a foreign country are involved. (Rarely comes into play) MUST ANSWER YES IN THE AFFIRMATIVE TO ALL THESE QUESTIONS TO INVOKE IPJ If you answer NO to any of the above 4 questions (more than likely question 3) it is not over yet . . . Continuous & Systematic Activities Test (General IPJ) First Question Pervasive Contacts THINK Starbucks Cardiac No Unilateral activityCardiac (p.p.b. = Illinois) did not intentionally create these activities in FL. (i.e., 15 heart valve sales to the State of FL) UF contacted them for the valves. Not Continuous Continuous = Uninterrupted in time Sales occurred in 2003, 2005, 2007 Not Methodical Systematic = Methodical Plan (e.g., a contract) Adhesive Yes Volitional ActivitiesAdhesive (p.p.b. = Mass.) had nationwide contacts and a five year contract with a FL corporation (First Coast) Continuous = Uninterrupted in time At the time of the accident, sales to FL were continuous and going to keep on continuing for another 3 years with the FL Corporation.

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Projection of 900+ heart valve sales in FL over 5 years Systematic = Methodical Plan A long term Contract, which extended over a 5 year period. Second Question Reasonableness Adhesive Example Interest of in avoiding burdensome litigation Adhesive (not unduly burdensome) is willing to enter into a 5 year contract with a corporation in FL. Thus, invoking the benefits and protections of its laws. Therefore, is willing to accept the fact that litigation could occur. Interest of in obtaining convenient / effective relief It is convenient to litigate her dispute in the place that she selected Interest of forum state in adjudicating dispute AdhesiveFL will have an interest because (1) the death occurred in FL, and (2) the sales of the valves that came into their state cause the death of one, it could cause the death of others. Interest of ALL courts in efficient dispute resolution Adhesive/Cardiac FL courts might hold that it is economically unreasonable to sue adhesive in FL because Cardiac is not subject to IPJ in FL. Thus, would be spreading the s out (i.e., she would have to sue Cardiac in either ILL or MASS) therefore; it is inefficient to bring two lawsuits against two s in different states. HOWEVER, the court could still find that Adhesive is subject to IPJ in FL. Its a toss up. Social Policies

IS VENUE PROPER? 28 1391 (b) Venue in General - A civil action may be brought in: (1) a judicial district in which any resides, if all s are residents of the State in which the district is located; and Analyzing Venue Determine each s residence under 1391 (c) and/or (d) Locate each s residence on the venue map Determine whether the s reside in the same or different States

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If they reside in the same State, venue is proper in each district in which any one of them resides If they do not reside in the same state, venue is not proper under (b)(1) (2) A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred Analyzing Venue Determine where the events leading to the s claim occurred Locate each of these places on the venue map Venue is proper in each judicial district you located This means venue can be proper in many places Venue is proper in the . . . Northern Dist.tire installation Middle Dist.tire inspection Southern Dist.tire failure and car crash (c) Residency For all venue purposes (1) A natural person, including an alien lawfully admitted for permanent residence in the United States, shall be deemed to reside in the judicial district in which that person is domiciled. Humans (2) A corporation shall be deemed to reside in any judicial district in which it is subject to IPJ Corporations (1 judicial district State) Traditional Basis; Minimum Contacts Test; or C & S Contacts Test If yes to any of these tests, then that corporation resides in that State. (3) A not residing in the United States may be sued in any judicial district. Aliens (d) If the state has more than one judicial district, then a corporation shall be deemed to reside in any district within the state;

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 Within which its contacts would be sufficient to subject it to IPJ If that district were a separate state
ExampleFlorida Is the Corporation subject to IPJ in Northern Dist.? Minimum Contacts? C & S Contacts? If YES, then that Corp. resides in the N.D. Is the Corporation subject to IPJ in Middle Dist.? Min. C.? C & S? If YES, then that Corp. resides in the M.D. Is the Corporation subject to IPJ in Southern Dist.? Min. C.? C & S? If YES, then that Corp. resides in the S.D. Key Points To Remember1441 1391(c)(2) applies when the state has one juridical district (i.e., Kansas) 1391(d) applies when the state has multiple judicial districts (i.e., Florida) 1391(d) requires you to treat a district as a state and determine: If a corporation would be subject to IPJ in that state under the minimum contacts test; or If a corporation would be subject to IPJ in that state under the C & S contacts test Dont forget Venue can be proper under both (b)(1) and (b)(2). -----------------------------------------------------------------------------------------------------------------------------------------------

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S INITIATION OF SUIT / S RESPONSE GETTING STARTED What Are s Potential Claims? Rule 18 - Joinder 18(a) no limitation on claim joinder under this rule. Keep in mind however: Diversity of Citizenship Federal Question Supplemental Jurisdiction Aggregation v. - If there is complete diversity of citizenship, then No limitation on claim joinder so long as aggregate value of claims exceeds $75K v. - If there is no complete diversity of citizenship, then Limitation on claim joinder to federal law claims and transactionally related state law claims. Rule 20 Permissive Joinder of Parties Rule 20(a)(1) Provides that [p]ersons may join in one action as s if: (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all s will arise in the same action. Although the joinder provisions of the Federal Rules are liberal, Kedra v. City of Philadelphia, they are not unlimited. Rule 20(a) limits joinder to s whose right to relief arises out of the same transaction, occurrence or series of transactions or occurrences a phrase that permits all reasonably related claims for relief by or against different parties to be tried in a single action. Id. Rule 20(a) also limits joinder to s whose claims involve a common question of law or fact. Id. at n.6. Rule 20(a)(2) provides that [p]ersons . . . may be joined in one action as s if: (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all s will arise in the action. Rule 21 Misjoinder of Parties Provides that misjoinder of parties is not ground for dismissal of an action. Instead, any claim against a party may be severed and proceeded with separately. Hypos 1. -1 and -2, properly joined as co-s under Rule 20(a)(1), sue on a claim that breached a K between the three. In addition, -1 asserts an unrelated claim against , concerning an entirely separate event. -1 has the right to assert this unrelated claim under Rule 18(a)(1). Although those claims are part of one case, the court may order a separate trial on the unrelated claim. After all, it involves different facts from the main claim, and might distract or confuse the jury hearing that main claim. SO the two claims will be tried separately under Rule 20(b). But ultimately, they will be determined in a single judgment, b/c they are part of a single case. 2. sues -1 and -2 alleging that they caused him tortious harm. Court concludes however that Joinder is of the two s is violated under Rule 20(a)(2) b/c they caused harm to in separate transactions. Here the court will order a severance under Rule 21. The result will create two cases; (1) v. -1, and (2) v. -2.

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In this scenario, there is another procedural device that might come into play: consolidation under Rule 42(a) Rule 42 Permits a court in which two or more separate cases are pending to consolidate the cases for any or all purposes. The only requirement is that the separate cases involve at least one common question of law or fact. Hypo - Subject Matter Jurisdiction 3. sues -1 and -2, properly joining them under Rule 20(a)(2). All three are citizens of California. s claim against -1 alleges that a violation under federal statute. s claim against -2 alleges a breach in a state law duty to . Is there Federal SMJ? The claim against -1 is a federal question The claim against -2 does not invoke federal question and does not invoke diversity of citizenship The claim against -2 does invoke supplemental jurisdiction. First, 1367(a) grants supplemental jurisdiction b/c the claim against -2 involves the same case or controversy as the claim that invokes SMJ (common nucleus of operative fact test. Second, 1367(b) does not remove the grant of supplemental jurisdiction b/c that subsection applies only in cases that invoked diversity of citizenship. Claim one was a federal question, therefore, (b) does not apply. 4. -1 and -2, properly joined under Rule 20(a)(1), assert state law claims against a single . -1 citizen of California, -2 citizen of Arizona, citizen of Nevada. -1s claim is for $100K but -2s claim is for $60K. Is there federal SMJ? Diversity of Citizenship is satisfied Amount in controversy is not satisfied as to -2s claim NOTE: when there are multiple parties such as this, they may not aggregate their claims together to satisfy the AIC Because the two claims arise from the same transaction or occurrence, 1367(a) grants supplemental jurisdiction over the claim by -2. 1367(b) does NOT remove the case because the claim is asserted by persons made parties under Rule 20 against a . NOT by s against persons made parties under Rule . . . 20. Therefore, (b) does not remove the case. 5. citizen of California, sues -1 and -2 citizens of Kansas, properly joining them under Rule 20(a)(2). s claims against s arise under state law. Claim against -1 is for $100K and -2 is for $60K. s claim against -2 does not meet the amount in requirement. s claim against -2 does not invoke supplemental jurisdiction either. 1367(b) removes supplemental jurisdiction over claims by s against persons joined under Rule 20. So (b) on its face removes supplemental jurisdiction

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6. -1 citizen California and -2 citizen Arizona, properly joined under Rule 20(a)(1), assert a state law claim against citizen Arizona. -1s claim is for $100K, -2s claim is for $200K. Is there federal SMJ? No federal question No diversity of citizenship between -2 and . 1367(a) grants supplemental jurisdiction over claim by -2. 1367(b) applies because the basis for SMJ between -1 and is Diversity of Citizenship Here, the claim is asserted by persons made parties under Rule 20 against a . Therefore, supplemental jurisdiction is okay. Does Have A Claim For Which The Law Provides A Remedy? Rule 11(b)(2) Claim is cognizable under federal or state law. Rule 11(b)(3) Evidence supports facts upon which claim is based. Can Bring Her Lawsuit In Federal Court Or Must Do So In State Court? 28 U.S.C. 1331 Federal Question 28 U.S.C. 1332 Diversity Jurisdiction 28 U.S.C. 1332 Alienage Jurisdiction 28 U.S.C. 1367 Supplemental Jurisdiction Can Bring Lawsuit In All Federal Courts Or Some Federal Courts? Personal Jurisdiction 28 U.S.C. 1391 Venue DRAFTING THE COMPLAINT What Is Required To Include In Complaint?

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Rule 8 Sets forth three requirements of any Complaint 8(a)(1) Jurisdiction Form 7(a) Diversity of Citizenship Humans = Citizens; or Corporations = State of Inc. and PPB Form 7(b) Federal Questions 8(a)(2) Statement of the Claim Legal Sufficiency Defined: Factual allegations supporting essential elements of the claim. In ruling on legal sufficiency of the Complaint, the court only looks to the face of the Complaint and not to the evidence. The court asks: if the proved everything she has alleged here, would she win? If invalid you will file MTD pursuant to Rule 12(b)(6) Dismiss w/ prejudice = Cannot amend Complaint Factual Sufficiency Defined: short and plain statement of the claim showing that the pleader is entitled to relief. If the pleader pleads facts that would not support / entitled the claimant to relief, the opposing party will assert Rule 11 (c) Sanctions for violation off 11(b)(3) factual contentions do not have evidentiary support. 8(a)(3) Relief Sought Form 10 WHEREFORE, Plaintiff . . . Rule 54(c): is entitled to recover whatever amount and whatever type of relief shown appropriate at trial regardless of what she asks for in complaint Exception 55(b)(1), (2) default judgment cannot exceed what is asked for in the Complaint. Is Required To Say More B/c Of The Nature Of Her Claim Or Her Damage?

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Rule 9 Pleading Special Matters 9(a) Capacity to Sue In the Complaint, the pleader need not alleged that they have the capacity to sue or be sued and/or a partys authority to sue or be sued. 9(b) Fraud or Mistake A party must state w/ particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a persons mind may be alleged generally 9(g) Special Damages If an item of special damages is claimed, it must be specifically stated Ex: Specific Performance, Injunction, etc. Is Limited To A Specific Theory Of Liability Or Form Of Relief? 8(d)(2) Alternative Pleadings - or Alternative Pleadings are okay. Ex: McCormick v. Kopmann Complaint: alleged Count 1 that Kopmann negligently drove his truck across the center line and collided w/ McCormicks automobile and that the said Decedent was in the exercise of ordinary care for his own safety and that of his property. also alleged Count II that the Huls sold alcoholic beverages to McCormick, which rendered him intoxicated and that as a result of such intoxication he drove his automobile in such a manner as to cause a collision w/ Kopmanns truck. Rule Where the pleading is in the alternative in different counts, each count stands alone and the inconsistent statements contained in a count cannot be used to contradict statements in another count. However: Alternative pleading are not permitted when in the nature of things the pleader () must know which of the inconsistent averments is true and which is false. Holding There was nothing in the record to indicate that knew in advance of the trial that the averments of Count I, and not Count IV, were true. Key fact because the witness is deceased, pleading alternative sets of facts is often the only feasible way to proceed. 8(d)(3) Inconsistent Pleadings or Multiple pleadings are allowed, regardless of consistency

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 Is required To Use Any Particular Form Or Format For Her Complaint?

Rule 10 Form of Pleadings 10(a) concerns the form of all pleadings and requires that each pleading must have: Caption Courts Name Title File Number; and Rule 7(a) designation (1) Complaint (2) Answer to Complaint (3) Answer to Counterclaim (4) Answer to Crossclaim (5) Third-party Complaint (6) Answer to third-party Complaint; and (7) Reply to an Answer 10(b) requires the party to set forth her allegations in Numbered Paragraphs Rule 8(d)(1) Allegations must be simple, concise and direct.

COMMENCEMENT OF LAW SUIT What Documents Must Give The Clerk To Commence A Lawsuit? 4(a)(1)(A) (G) Summons Sets forth the required contents of the Summons Complaint

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 Civil Cover Letter 28 U.S.C. 1914(a) Filing Fee - $350 How Are s Notified Of The Existence Of The Lawsuit? Service of Process Rule 4(c) Service 4(c)(1) In General After Complaint is filed and Summons is signed by clerk, Under Rule 4(m) the has 120 days to serve the Summons on the (s). 4(c)(2) By Whom Service of Summons must be done by someone who is over 18 years of age Methods for service on natural person 4(e)(2) Service on an Individual 4(e)(2)(A) on the individual 4(e)(2)(B) Suitable age / discretion who resides therein 4(e)(2)(C) Authorized agent Methods for service on a corporation 4(h) Service on a Corporation 4(h)(1)(A) - on the individual 4(h)(1)(B) - On the agent; and/or On the Chief Executive Officer; and/or On the President Time to Service 4(m) After complaint is filed and the clerk signs summons, has 120-days to serve the . If fails to serve w/in 120 days the court (on motion or on its own) must dismiss the action w/out prejudice (meaning cannot re-file complaint) against that or order that service be made w/in a specified time. But if the shows good cause for the failure, the court must extend the time for service to be made. When Service is required

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Rule 5(a)(1) When is service required? 5(a)(1)(A) An order stating that service is required 5(a)(1)(B) Pleading filed after the original complaint 5(a)(1)(C) Discovery documents 5(a)(1)(D) Motions 5(a)(1)(E) Notice How Service is made Rule 5(b) How service is made 5(b)(1) Serving an attorney If a party is represented by an ATTORNEY service must be made on the ATTORNEY 5(b)(2) Service in General 5(b)(2)(A) Handing it to them directly 5(b)(2)(B) Leaving it: 5(b)(2)(B)(i) At their Office; or 5(b)(2)(B)(ii) At their home with someone who is of suitable age / discretion who resides therein. 5(b)(2)(C) Mailing it to their last known address 5(b)(2)(D) Leaving it with the clerk of court 5(b)(2)(E) Sending it Via Email 5(b)(2)(F) delivering it by any other means agreed/consented to in writing. Note: (C) (F) is allowed an extra 3 days under Rule 6(d) Serving Multiple s Rule 5(c) Serving Numerous s If there are a unusually large number of s, a court may (on its own or by motion) order that: 5(c)(1)(A) s pleadings and replies to them need not be served on other s

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5(c)(1)(B) any crossclaim, counterclaim, avoidance, or affirmative defense in those pleadings and replies to them will be treated as denied or avoided by all other s; and 5(c)(1)(B) filing any such pleading and serving it on the constitutes notice of the pleading to all parties. Waiving Service 4(d)(1) Waiving Service Requesting a Waiver can request to waive the summons if it would put a burden on the (e.g., if the lives in Alaska and it would cost a lot of money for the to hire a process server and serve the .) 4(d)(2) Failure to Waive If the fails without good cause to waive the summons the court can impose on the under rule: 4(d)(2)(A) the expenses later incurred in making service; and 4(d)(2)(B) the reasonable expenses, including attorneys fees, of any motion required to collect those service expenses. 4(d)(3) s Time to Respond After grants waiver, has 60 days to answer the Complaint if they live inside the U.S. or 90 days if they live outside the U.S. (e.g., a foreign corporation)

s RESPONSE TO LAWSUIT
Did Properly Commence Lawsuit In Federal Court 28 U.S.C. 1331 Federal Question 28 U.S.C. 1332 Diversity Jurisdiction 28 U.S.C. 1332 Alienage Jurisdiction 28 U.S.C. 1367 Supplemental Jurisdiction Did Commence Lawsuit In An Appropriate Federal Court? Personal Jurisdiction 28 U.S.C. 1391 Venue Did Assert A Claim For Which The Law Affords A Remedy? Rule 11(b)(2)

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 Claim is cognizable under federal or state law. Rule 11(b)(3) Evidence supports facts upon which claim is based. Is The Correct Person To Assert The Claim? Rule 17(a)(1) Real Party Interest (RPI) An action must be prosecuted in the name of the real party in interest. RPI is the person or entity possessing the right or interest to be enforced through the litigation. Purpose to ensure that the one who has the legal right being vindicated is the named claimant. A fiduciary may be the RPI, suing on behalf of others Second sentence of (a)(1). Problems SMJ (be on the look out) Assignment Subrogation Rule 17(a)(3) The court should NOT dismiss a case that is brought by someone other than the RPI until it has provided a reasonable time for the to fix (cure) the defect. After the matter is cured within a reasonable time, the RPI is treated as though she had been joined from the outset of the case. But, if the RPI defect is not cured w/in a reasonable time, the court may dismiss on that ground. Rule 17(b) Capacity to Sue 17(b)(1) Domicile 17(b)(2) Corporations 17(b)(3) Non-incorporated businesses Permits a partnership or LLC to sue in its own name in federal court if it is asserting a federal question claim. Did Join Too Many Parties? When violates Rule 20(a) Rule 21

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Provides that such misjoinder of parties is NOT a basis for dismissal of the suit. Instead, the court may sever any claim against a party. Rule 15 Amend the Complaint

POTENTIAL PRE-ANSWER MOTIONS

Does Have Any Potential Pre-Answer Motions?

Rule 12(b) Defenses 12(b)(1) lack of SMJ 12(b)(2) lack of IPJ 12(b)(3) improper venue 12(b)(4) insufficient process (face of the summons) 12(b)(5) insufficient service of process (defects in the method of delivery) 12(b)(6) failure to state a claim upon which relief can be granted 12(b)(7) failure to join an absentee under Rule 19 Rule 21 Motion to Sever - Provides that such misjoinder of parties is NOT a basis for dismissal of the suit. Instead, the court may sever any claim against a party.

DRAFTING A PRE-ANSWER MOTION AND MEMORANDUM Is s Pre-Answer Motion Warranted? Is s Complaint Warranted? SANCTIONS - wants to move for sanctions against or Vise Versa Step 1 The party must first file a MTD 12(b); Then the party must make a separate motion under rule 11(c)(2) for any violation of 11(b)(1)-(3). The motion must be served under Rule 5, BUT it must not be filed within 21 days after service on the other party (safe harbor provision) (allows the other party to correct the mistake). If warranted the Court may award to the prevailing party the reasonable expenses, including attorneys fees, incurred for the motion.

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Step 2 What the Court can do 11(c)(1) Impose sanctions on law firm, attorney, or client. Under this section, a firm is responsible for the attorney, associate, or employee 11(c)(3) Order firm, attorney, or client to show cause why sanctions should not be imposed 11(c)(4) limitations Non-Monetary Damages Written or verbal reprimand Order to attend CLE State Bars disciplinary authority 11(c)(5) Monetary Damages A court must NOT impose monetary sanction; 11(c)(5)(A) against a represented party for violating Rule 11(b)(2); or 11(c)(5)(B) on its own, unless it is issued a show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned. 11(c)(6) Requirements for an Order This section informs a court that it must describe the sanctioned conduct and explain the basis for the sanction.

SERVING AND FILING A PRE-ANSWER MOTION How Are And The Court Notified Of s Motion? Motion is delivered to s lawyer

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Rule 5(a)(1) When is service required? 5(a)(1)(A) An order stating that service is required 5(a)(1)(B) Pleading filed after the original complaint 5(a)(1)(C) Discovery documents 5(a)(1)(D) Motions 5(a)(1)(E) Notice How Service is made Rule 5(b) 5(b)(1) Serving an attorney If a party is represented by an ATTORNEY service must be made on the ATTORNEY 5(b)(2) Service in General 5(b)(2)(A) Handing it to them directly 5(b)(2)(B) Leaving it: 5(b)(2)(B)(i) At their Office; or 5(b)(2)(B)(ii) At their home with someone who is of suitable age / discretion who resides therein. 5(b)(2)(C) Mailing it to their last known address 5(b)(2)(D) Leaving it with the clerk of court 5(b)(2)(E) Sending it Via Email 5(b)(2)(F) delivering it by any other means agreed/consented to in writing. Note: (C) (F) is allowed an extra 3 days under Rule 6(d) How Far In Advance Of The Hearing Is Required To Serve Motion? Rule 6(c) Motions, Hearing, Notices, Affidavits 6(c)(1) - that submits a motion, notice, hearing, or affidavit must serve at least 14 DAYS before the time specified for the hearing. Exceptions

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6(c)(1)(A) Ex parte 6(c)(1)(B) Rules set a different time 6(c)(1)(C) Court order setting a different time 6(c)(2) Supporting affidavit must be filed and served with the motion. Any Opposing Affidavit must be served at least 7 DAYS before the hearing. (Last question of Problem set #4) Rule 6(d) Additional Time 3 DAYS are added to service that is made under: 5(b)(2)(C) mailing it 5(b)(2)(D) leaving it with the court clerk 5(b)(2)(E) via email 5(b)(2)(F) delivering it other means agreed to in writing Rule 6 Computing Time and Extending Time 6(a) Computing Time 6(a)(1) Days 6(a)(1)(A) DONT count the 1st day (i.e., day of service) 6(a)(1)(B) Count every day even Saturdays, Sundays, and Holidays 6(a)(1)(C) If the last day ends on a Saturday, Sunday, or Legal Holiday the period ends on the next available day (i.e., M, T, W, TH, or F that is not a legal holiday 6(a)(4) Last Day defined 6(a)(4)(A) For electronic filing, the last day is midnight in the courts time zone 6(a)(4)(B) Any other filing method, the last day is the closing time of the clerks office on that day 6(a)(6) Legal Holidays New Years 01/01/2012, MLK birthday 01/16/2012, Washingtons birthday 02/20/2012, Memorial Day 05/28/2012, Independence Day 07/04/2012, Labor Day 09/03/2012, Columbus Day 08/08/2012, Veterans Day 11/12/2012, Thanksgiving 11/25/2012, Christmas 12/25/2012. 6(b) Extending Time (s extension) 6(b)(1)(A) Before time has expired - can request an extension to answer Complaint

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 6(b)(1)(B) After time has expired - can request an extension but only if failure was due to
excusable neglect.

ANSWER TO COMPLAINT
When Is Required To Answer? Rule 12(a)(1)(A) Time to Respond Rule 12(a)(1)(A)(i) must serve an answer w/in 21 days; or Rule 12(a)(1)(A)(ii) If timely waived summons as indicated in Rule 4(d), must serve an answer w/in 60 days after the requires for a waiver was sent; or 90 days if it was sent to a in a foreign country What Is Required To Say In His Answer? Rule 8(b) Defenses; Admissions and Denials Core Requirements must respond to each allegation in s complaint. 8(b)(1)(A) raise any defenses to each claim he or she has; and 8(b)(1)(B) - admit or deny the allegations asserted against it by opposing party: or 8(b)(5) lacks sufficient information on which to admit or deny If does this, it has the same effect as a denial 8(b)(3) General or Specific Denials wants to deny the Complaint in whole can do so by a general denial. BUT if there is anything in the Complaint that should be admitted, should admit it. 8(b)(4) Partial Denial If wants to deny only part of the allegation in the Complaint the may do so. Ex: Defendant denies the allegations contained in [Paragraph 2] of plaintiffs complaint, except admits [on November 22, 2011, and were involved in a two-car accident]. Rule 8(b)(5) Lacking Knowledge RULE 11 SANCTIONS

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 11(b)(4) If denies factual allegations in the s complaint that knows or has reason to know are true (i.e., is in possession of the relevant information or if the matter alleged is something of public record), can be subject to Rule 11 sanction 8(b)(6) Failing to Deny If fails to deny an allegation it is just like the admitted to that allegation Ex: sues for negligently causing damage to her car on Nov. 2, 2012 in Jacksonville, Florida as indicated in paragraph 6 of s complaint. in her answer states, demands that demonstrate the truth of her allegation by evidence at trial. has failed to deny the allegation and under this section, therefore, has admitted to the allegation. Argumentative Denial Ex: Same hypo as above except instead states, On Nov. 2, 2012, was on vacation in Spain. You probably wont get away with this but its sloppy so it depends on the judge Negative Pregnant Ex: Same hypo as above except states, denies that on Nov. 2, 2012, she negligently drove her automobile in Jacksonville, FL and struck . This literal denial is fraught w/ the possibility of a negative pregnant. Courts treat such response to the allegation as a denial but it opens up the to an admission of other possibilities (e.g., was driving recklessly in stead of negligently). Does Have Any Rule 12 Defenses That Have Not Been Waived? 12(b)(1) Most favored Defense According to Rule 12(h)(3), 12(b)(1) lack SMJ can be raised at any time. 12(b)(6) Favored Defense According to Rule 12(h)(2), 12(b)(6) and (7) do not need to be put in the s first responsive pleading. They can be raised as late as trial. 12(b)(2) (5) Disfavored Defenses The defenses in Rule 12(b)(2)-(5) must be put in the first defensive response or they are waived according to Rule 12(h)(1)(A) and Rule 12(h)(1)(B)(i)-(ii). 12(g) Joining Motions 12(g)(2) a party making a motion under this rule must not make another motion under this rule raising a defense or objection that was available to him or her but omitted from its earlier motion (basically means you cannot make a MTD pursuant to 12(b)(2) and then make another MTD pursuant to 12(b)(3) . . . they both must be included in the first motion) can make one pre-answer motion raising as many 12(b) defenses as are available to him or her. If the pre-answer motion is denied, he must file an answer before making a later motion that raises 12(b)(1) or 12(b)(6). 12(h) Waiving and Preserving Certain Defenses

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12(h)(1) tells you that a party waives any defense listed in Rule 12(b)(2)-(5) by: 12(h)(1)(A) failing to bring it up in an earlier pre-answer motion as indicated by 12(g)(2); or 12(h)(1)(B)(i)-(ii) by failing to make it by motion or include it in a responsive pleading (answer), or in an amendment allowed by Rule 15(a)(1). 12(h)(2) tells you that you do not have to make a MTD 12(b)(6), (7), or affirmative defense in the first responsive pleading, they can be raised: 12(h)(2)(A) in any pleading allowed or order under Rule 7(a); 12(h)(2)(B) by a motion under Rule 12(c); or 12(h)(2)(C) at trial. 12(h)(3) tells you that 12(b)(1) Lack of SMJ is never waived. 12(i) Hearing Before Trial IMPORTANT This provision tells you that if a party moves (i.e., files an answer or motion) raising any defense in 12(b)(1)-(7) or 12(c), it must be heard and decided before trial unless the court orders a deferral until trial.

Does Have Any Affirmative Defenses? Affirmative Defenses Most Common Contributory Negligence / Comparative Fault Statute of Frauds Statute of Limitations Five Year Statute of Limitation Breach of Written K Four Year Statute of Limitation Negligence Product Liability Fraud Breach of Oral K

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Two Year Statute of Limitation Wrongful Death Libel/Slander One Year Specific Performance of K Contributory Negligence Assumption of Risk Statute of Frauds Statute of Limitations Rule 8(c)(1) Equation will win IF A + B + C + D are true UNLESS establishes an affirmative defense has the burden of pleading and proving the IFs has the burden of pleading and proving the UNLESSES Usually the burden of proof follows the burden of pleading, so if a party is required to plead an issue, she is usually required to prove it as well EXCEPTION Defamation; and Repayment of Loan. Burden is on the to prove Rule 8(c)(2) Mistaken Designation If a party mistakenly designates a defense as a counterclaim OR a counterclaim as a defense, the court must treat the pleading as though hit were correctly designated. Whether a claim can be asserted (or a party joined) requires us to address three steps: 1. Is there a joinder provision in the Federal Rules that allows assertion of this claim (or joinder of this party)?

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2. If so, does this claim invoke diversity of citizenship, alienage, or federal question? If so, it may be asserted in the pending case. 3. If not, the third issue is whether the claim can nonetheless be asserted in federal court b/c it invokes supplemental jurisdiction. 28 U.S. C. 1367(a)-(d) 1367(a) Provides, among other things, that the district courts may exercise supplemental jurisdiction over jurisdictionally insufficient claims when they are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III . . . . Put differently, supplemental jurisdiction applies when a jurisdictionally insufficient claim is transactionally related to a jurisdictionally sufficient claim either by way of a logical relationship, overlapping evidence, or overlapping facts. Issue 1: is at least one of s claim within the district courts original SMJ? If no then the analysis ends b/c there is no basis for the case to be in federal court If yes then the analysis continue Issue 2: is another claim in the case (whether asserted by , , or -3) outside the district courts original SMJ? If no then the analysis ends b/ all the claims are within the district courts original SMJ and supplemental jurisdiction is unnecessary If yes then the analysis continues with respect to each claim for which there is not an original basis for SMJ Issue 3: are the claims that are outside the district courts original SMJ transactionally related to the s claim that is within such original SMJ? If no then the analysis ends b/c there is no basis for the court to exercise SMJ over those claims If yes then the analysis continues with respect to CTO 1367(b) Claims brought by the are okay Compulsory counterclaims ( v. ) Cross claims (-1 v. -2) Third-party claims ( v. -3) 1367 (b) does not apply to any case in which the has asserted a claim based on federal question 1331. This section applies if the case is in federal court for reasons based on diversity of citizenship 332. Issue 1: does the district court have original SMJ over s claim only b/c the parties diversity of citizenship? If no then supplemental jurisdiction exists over each claim under consideration If yes then the analysis continues to determine whether the supplemental jurisdiction conferred by 1367(a) is withdrawn by 1367 (b) Issue 2: is the claim under consideration being asserted by against a third joined pursuant to Rule 14 or by against a joined pursuant to Rule 20?

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If no then supplemental jurisdiction exists over the claim If yes then the analysis continues to determine whether supplemental jurisdiction is withdrawn. Issue 3: would the exercise of supplemental jurisdiction over the claim by against one of these two types of defending parties be inconsistent with the complete diversity requirement and/or the amount in controversy requirement? If no then supplemental jurisdiction exists over the claim If yes then supplemental jurisdiction does not exists over the claims. 1367(c) It provides that a court may decline to exercise supplemental jurisdiction over a claim on the basis of any of these factors: 1. Would federal court become embroiled in tricky state law issue? 2. I s state claim the primary focus of the lawsuit? 3. Was the federal law claim dismissed at an early stage of the case? 4. Will the jury be confused by hearing both claims during one trail? 1367(d) Addresses the problem with statute of limitations This section allays fears by providing that the statue is tolled while the case is pending in federal court and for 30 days after dismissal.

Hypos 1. , a citizen of Missouri, asserts a state law claim against , also a citizen of Missouri. This case cannot go to federal court. There is no Diversity of citizenship, and there is no federal question. Supplemental jurisdiction cannot apply here; it is not available until the case is properly in federal court b/c asserts a claim that satisfies diversity, alienage, or federal question. 2. , a citizen of Missouri, sues , a citizen of Illinois, alleging (1) that violated s rights under the federal securities law and (2) that also violated s rights under state securities law. claims damages of $400,000. Here, claim (1) invokes federal question, so the case gets into federal court. Claim (2) has an independent basis of federal question (it asserts diversity of citizenship) It belongs in federal court by itself. Supplemental jurisdiction is irrelevant. 3. , a citizen of Missouri, sues , a citizen of Missouri, alleging (1) violated s rights under the federal securities law and (2) that also violated s rights under state securities law. And claiming $400,000 in damages. Here, claim (1) invokes federal question. Claim (2) however, does not satisfy diversity of citizenship jurisdiction. Claim (2) also does not invoke federal question. Supplemental jurisdiction may apply to get claim (2) into federal court. First, the case itself is already in federal court (b/c claim (1) invoked federal question. Second, this additional claim cannot invoke one of the basic, independent bases of SMJ. HYPO Gibbs Case a citizen of Tenn. sues a citizen of Tenn., asserting (1) violation of fed. Labor law and (2) violation of state labor law. The two claims are based upon the same alleged actions by . Claim (1) invokes federal question, but claim (2) does not satisfy diversity or federal question. Claim (2) invokes supplemental jurisdiction under 1367(a) b/c it arises from a common nucleus of operative fact as claim (1) (the jurisdiction-invoking claim). 1367(b) does not apply at all b/c the underlying basis of SMJ in the case is NOT 1332 (it is 1331). So supplemental jurisdiction supports claim (2). HYPO Finley Case , a citizen of California, asserts (1) an FTCA claim against the -1 FAA and (2) a state law negligence claim against -2, who is a citizen of California. The claims arise from a single airplane crash. Claim (1) invokes federal question, but claim (2) does not satisfy diversity or federal question. Claim (2) invokes supplemental jurisdiction under 1367(a) b/c it arises from a common nucleus of operative fact as claim (1). Under the last sentence of 1367(a), it is irrelevant that supplemental jurisdiction is sought for a claim against an additional party, as in this hypothetical. 1367(b) does not apply; the underlying basis of SMJ in the case is NOT 1332 (it is 1331). So supplemental jurisdiction applies to claim (2). Page 37 of 62

 Does Have Any Counterclaims? Rule 13 Counterclaims and Crossclaims Two types of counter claims 13(a) Compulsory Counterclaim Rule 13(a)(1) provides in pertinent part that a [p]leading must state as a counterclaim any claim . . . the pleader has against an opposing party if the claim: (A) arises out of the transaction or occurrence that is the subject matter of the opposing partys claim . . . . Test for Transaction or Occurrence 1. Logical Relationship Test Save time and money the court looks to see if it is efficient to litigate both claims together. 2. Overlapping Evidence Test Think about the evidence that will be offered by and in connection with the s claim. Then think about the evidence that will be offered by the and in connection w/ the s claim. If there is overlap between the evidence then it probably satisfies the requirement. Counterclaim is waived if not presented. 13(a)(1)(B) does not require adding another party over whom the court cannot acquire jurisdiction. 13(b) Permissive Counterclaims All other claims may have against . Independent basis for subject matter jurisdiction is required 28 U.S.C. 1331, 1332 13(h) Joinder Joinder of additional parties on compulsory and permissive counterclaims. can join new parties on counterclaim. Asserting Counterclaim Included in answer after admissions, denial, affirmative defenses Allegations must satisfy rules 8 and 9 Standards applicable to s complaint are applicable to s counterclaim Subject to challenge by pursuant to 12(b)(6)

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Served on other parties pursuant to Rule 5 is not required to prepare a summons, civil cover sheet, or filing fee Subject matter jurisdiction Compulsory counterclaims (COURT ALWAYS HAS SMJ) Independent basis for SMJ not required supplemental jurisdictions Permissive counterclaims Independent basis for SMJ is required Federal question, diversity jurisdiction. s Answer to s Counterclaim Core Requirements Rule 8(b) Hypo Does the have any third-party claims against a non-party? Third-party claims are always permissive Third-party claims are always against a non-party. Standard for permissible third-party claims -3 is or may be liable for all or party of s liability to Rule 14(a) Typical bases for seeking recovery from -3 Indemnification complete reimbursement Employee-employer Principal-agent Contribution proportionate reimbursement Joint tortfeasors Joint obligors

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Supplemental jurisdiction applies to third-party claims when necessary 1367(a) Joinder of additional claims can add as many other claims as he has against -3 Rule 18(a) Related claims 1367(a) Unrelated claims 1331, 1332 Raised in separate pleading and served on -3 w/ summons Rule 14(a) and Rule 4 Served on other parties and filed w/ the court like any other document Rule 5(a)-(b), (d) Hypo , driving her own car, is involved w/ a collision w/ -1, who is driving a car owned by -2. Under applicable law, -2 (as owner of the second car) is vicariously liable for the acts of the person to whom she lent the car (-1). brings a single case against both -1 and -2. Assume that you represent -2. You do not know who was at fault in the crash. It could have been or it could have been -2. What claims must/may you file in the pending case? First: You will have -1 answer and file a compulsory counterclaim against . The latter is a claim (for damage to -2s car) against an opposing party and it arises out of the same transaction or occurrence as s claim against -2. -2 must assert this claim in the pending case or else she is estopped from ever asserting it. Rule 13(a)(1). Second: you may file a crossclaim against -1 Rule 13(g). This is a claim against a co-party and it arises from the same transaction or occurrence as the underlying claim. First: you will claim that -1 owes -2 indemnity on s claim. Thus, if wins against -2, this indemnity claim will shift the liability from -2 to -1. That protects -2 from liability on s claim. But if the wreck was -1s fault, -2 will want to recovery from -1 for damage to her car. So the second aspect of the crossclaim is to recover fro the property damage. Both are part of the crossclaim, b/c both arise from the same transaction or occurrence as the underlying suit. Hypo 1367(b) Supplemental Jurisdiction scenario , a citizen of Michigan, sues , a citizen of Iowa, on a state law claim for $400,000. asserts a counterclaim (which is a claim against an opposing party) against for $60,000; the counterclaim arises from the same transaction as s claim. s claim invokes diversity jurisdiction, but s counterclaim does not satisfy diversity jurisdiction (b/c it does not exceed $75K and does not satisfy federal question). s claim satisfies supplemental jurisdiction under 1367(a) b/c it arises from a common nucleus of operative fact as s claim (which invoked federal SMJ by invoking diversity jurisdiction). But 1367(b) must be addressed b/c the underlying basis of jurisdiction in the case is 1332. Here, however, the prohibition against supplemental jurisdiction does not apply, b/c this is not a claim by a or by one joined on the s side of the case. It is by a . Thus, supplemental jurisdiction applies to claim (2).

Standard For Permissible Third Party Claim Rule 14(a) Third party claims.
Rule 14(a)(1) authorizes a defending party to join a nonparty who is or may be liable to the defending party for all or part of the amount it may be required to pay a claimant.

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If does not recover from , then does not have a claim against 3 If recovers from , then may be able to recover from 3 some or all of what must pay to Indemnification dollar for dollar If recovers $100K from -employer, then -employer can recover $100K from 3employee Contribution pro rata in relation to responsibility If fault-free recovers $100K from -tortfeasor who is 50% at fault from s losses, then can recover $50K from 3-joint tortfeasor. Asserted by defending party against a non-party (i.e., a new party) v. third-party Counterclaim v. third-party Crossclaim v. third-party Permissive see may in Rule 14(a)(1) Supplemental jurisdiction always applies when claim asserted by non- Once asserted, Rule 18(a) allows third-party to assert any additional claims he may have against third-party These additional claims are called claims not third-party claims These additional claims can be transactionally related or transactionally unrelated to s original claim. If transactionally unrelated, then these additional claims must have an independent jurisdictional basis (federal question, diversity, alienage).

Does have Any Crossclaims Against Third Party s?

Rule 13(g) authorizes a to assert a crossclaim against a co- when the coparty is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. Standard for permissible crossclaim Elements 1. Arises out of same transaction or occurrence as s claim; or 2. Arises out of same transaction or occurrence as s counterclaim Crossclaims can be used so seek contribution or indemnification.

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permitted by Rule 8(d)(2), which authorizes alternative, hypothetical, and inconsistent claims and defenses. Raised in s answer and served and filed like any other document Rule 13(g) and Rule 5(a)-(b), (d). 28 U.S.C. 1367(a) - Supplemental Jurisdiction Hypo: (1) A, B, and C, each driving her own car, collide, and each is injured. Each suffers damages in excess of $75,000. A is a citizen of New York. B and C are citizens of New Jersey. A sues B and C, as co-defendants, in federal court. There is no basis for federal question, but As case does invoke diversity of citizenship jurisdiction. (Why? b/c is not a co-citizen of either and the amount in controversy exceeds $75K). B asserts a compulsory counterclaim against A to recover for her injuries from the accident. (Why is this a compulsory counterclaim? b/c it is against an opposing party and it arises from the same transaction or occurrence as that partys claim against B). B also asserts a crossclaim against C for those injuries. It is a crossclaim b/c it is against a coparty and arises from the same transaction or occurrence as the underlying suit. Now, is there SMJ over the counterclaim and crossclaim? Assume that all claims arise under state law so there is no basis for the assertion of Federal question. Bs compulsory counterclaim against A invokes diversity of citizenship. It is a citizen of New Jersey against a citizen of New York. Therefore supplemental jurisdiction is irrelevant. But the crossclaim does not invoke diversity of citizenship. There is no diversity jurisdiction b/c -1 and -2 are both citizens of New Jersey. 1367(a) grants supplemental jurisdiction over claims that are part of the same case or controversy as the underlying claim that did invoke SMJ (s original claim). Claims meet the Gibbs standard (common nucleus of operative fact) with the underlying claim. 1367(b) applies in cases that invoke diversity jurisdiction (as the claim asserted by A against B and C). It then operates to remove supplemental jurisdiction over claims asserted by s. The claim in this case is asserted by -1 so therefore 1367(b) does not apply. (2) Same exact hypo as (1) but in stead B and C are s (citizens of N.J) and A is the (citizen of N.Y.) This time, B asserts a crossclaim for her injuries against C. 1367(a) grants supplemental jurisdiction. 1367(b) however will take supplemental jurisdiction away in this hypo. Why? This section applies in cases that invoke diversity jurisdiction (as the claims by B and C against A did). But it removes jurisdiction over claims by s against persons made parties under Rule 20. The claim by B against C is a claim asserted by a against someone joined under Rule 20(a)(1). Therefore, under a literal interpretation of the statute, there cannot be supplemental jurisdiction over this claim.

This strategy was employed by the in Clark v. Associates Commercial Corp., and is expressly

DRAFTING THE ANSWER & SERVING AND FILING THE ANSWER

Is Required to Make Any Certification Regarding The Content? Rule 11(a) requires a signature by the attorney The Court must strike (Rule 12(c)) an unsigned paper unless the omission is promptly corrected. Rule 11(b) things that can cause sanctions to be imposed 11(b)(1) a complaint, motion, etc., presented for any improper use, such as to harass, cause unnecessary delay, or needlessly increase the costs of litigation. Ex: A lawyer that has filed a complaint or motion that has no purpose but just to harass, etc. 11(b)(2) Legal contentions that are not warranted by existing law. Ex: A lawyer that is requesting punitive damages in a breach of K case.

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11(b)(3) factual contentions that do not have evidentiary support Ex: a client who tells a lawyer that he or she was fired from their job due to sexual discrimination. The lawyer files Complaint. Later turns out that Client was really fired for bringing in a gun. Court can impose sanctions on the Client not the lawyer/firm, unless lawyer knew the real truth prior to filing the complaint. 11(b)(4) - s answer to s Complaint Subject to Rule 8(b)(5) - If denies factual allegations in the s complaint that knows or has reason to know are true (i.e., is in possession of the relevant information or if the matter alleged is something of public record), can be subject to Rule 11 sanctions. Rule 11(c) Sanctions 11(c)(1) Court can impose sanctions on the Firm, Attorney, or Client 11(c)(2) Motion for sanctions must be made separately from other motions. Motion must be served on opposing party pursuant to Rule 5, BUT it must NOT be FILED before 21 DAYS of serving the opposing party. 21 Day Safe Harbor period. 11(c)(3) The court can make the opposing party to Show Cause as to why they shouldnt impose sanctions on them 11(c)(4) Sanctions that are imposed must be limited to what suffices to deter repetition 11(c)(5) The court CANNOT impose monetary sanctions for violation of 11(b)(2) Rule 11(d) Inapplicability to Discovery Does not apply to the discovery process. How Are And The Court Notified Of s Motion? Motion is delivered to s lawyer Rule 5(a)(1) When is service required? 5(a)(1)(A) An order stating that service is required 5(a)(1)(B) Pleading filed after the original complaint 5(a)(1)(C) Discovery documents 5(a)(1)(D) Motions 5(a)(1)(E) Notice How Service is made Rule 5(b) 5(b)(1) Serving an attorney

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If a party is represented by an ATTORNEY service must be made on the ATTORNEY 5(b)(2) Service in General 5(b)(2)(A) Handing it to them directly 5(b)(2)(B) Leaving it: 5(b)(2)(B)(i) At their Office; or 5(b)(2)(B)(ii) At their home with someone who is of suitable age / discretion who resides therein. 5(b)(2)(C) Mailing it to their last known address 5(b)(2)(D) Leaving it with the clerk of court 5(b)(2)(E) Sending it Via Email 5(b)(2)(F) delivering it by any other means agreed/consented to in writing. Note: (C) (F) is allowed an extra 3 days under Rule 6(d)

s FAILURE to ANSWER s COMPLAINT Rule 55 Default; Default Judgment 55(a) Entering a Default When fails to answer the s Complaint within the 21 days that is required by rule 12(a)(1)(A)(i), the Clerk must enter the partys default. 55(b) Entering a Default Judgment 55(b)(1) By the Clerk Requirements for Judgment to be entered by Clerk 1. Sum Certain 2. has not appeared (i.e., Filed a Notice of Appearance 3. is not a minor or incompetent Note: if the filed a Notice of Appearance then Rule 55(b)(2) will apply.

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55(b)(2) By the Court / Judge If the files a Notice of Appearance the court must notify the within 7 DAYS before the hearing on judgment. 55(b)(2)(A) the judge can conduct a hearing on damages 55(b)(2)(B) Determine the Damages See Rule 54(c) 55(b)(2)(C) Request parties to bring forth evidence to determine damages 55(b)(2)(D) Investigate the matter. Can award a lesser amount of damage that requested in complaint. 55(c) SET ASIDE default The can bring a motion to set aside the default / default judgment The must show good cause within a reasonable time. However, motion will be denied if: 1. The has suffered any litigation prejudice; Ex: evidence was destroyed due to delay by 2. does not have a valid / meritorious defense; or 3. has displayed culpable conduct. Culpable Conduct Intent to thwart judicial proceeding; or Reckless disregard for the impact on those proceedings. Meritorious Defense Does not have to be an absolute winning defense, but only that it is possible for the defense to exists Rule 60(b)(1) Relief from a Judgment or Order Grants the s request to set aside the default / default judgment if can prove he or she has not violated any of the three above requirements. Rule 6(b) Extending Time The can request an extension of time to file a pre-answer motion. Rule 54(c) Demand for Judgment; Relief to be Granted

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Damages CANNOT exceed in amount, what was demanded in the Pleadings (Complaint) Note: Every other final judgment can exceed or be different from what was pleaded in the Complaint.

WANTS TO DISMISS HER COMPLAINT

A may want to dismiss her Complaint b/c she has settled w/ the or because she realized she messed up (for whatever reason) and now needs to retract her Complaint. Voluntary 41(a)(1) By w/out a court order 41(a)(1)(A)(i) A notice of dismissal BEFORE the opposing party serves either an answer or motion for summary judgment.; or 41(a)(1)(A)(ii) A stipulation of dismissal signed by all parties who have appeared. 41(a)(1)(B) A voluntary dismissal by either by (1) notice or (2) stipulation is generally WITHOUT PREJUDICE (meaning can re-file the complaint) BUT IF previously dismissed Complaint (either in state court or federal court) and re-filed in FEDERAL COURT and then files a (1) notice of dismissal, the dismissal operates as adjudication on the merits (i.e., with prejudice meaning cannot re-file complaint again). 41(a)(2) by a court order Provides that in any situation not covered by 41(a)(1), the court may grant a s motion for voluntary dismissal. Ex: sues . files and serves her answer. wants to dismiss voluntary but does not agree to the dismissal. cannot act unilaterally under Rule 41(a)(1)(A)(i) b/c has already served her answer. And cannot dismiss under Rule 41(a)(1)(A)(ii) b/c the will not sign. can have the case dismissed ONLY IF the court orders dismissal under Rule 41(a)(2). Involuntary 41(b) Provides for dismissal in three situations: for failure of the 1. To prosecute the case; 2. To comply with the Fed. Rules; or 3. To comply w/ a court order.

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 Dismissal operates as an adjudication on the merits (i.e., w/ prejudice meaning cannot re file) However If dismissed for: Lack of SMJ; Improper Venue; or Failure to join a party under Rule 19 Dismissal is w/out prejudice (meaning can re-file)

WANTS TO AMENDED COMPLAINT

Amendments Before Trial 15(a)(1) - Amending as a Matter of Course 15(a)(1)(A) A party has the right to amend ONCE before being served w/ a responsive pleading (answer) (must amend w/in 21 days) There is only a right to amend once; a second amendment can be made only with court permission 15(a)(2). Responsive Pleadings cut off s right to amend . . . Not Motion. 15(a)(1)(B) After -received s answer (or vise versa if it is a counterclaim), has 21 more days to amend the Complaint. 15(a)(2) Other Amendments Applies in all cases in which there is no right to amend. (Meaning it is past the 21 day period or you have already amended once, or the opposing party answers) Party can file a motion to strike pursuant to 12(f) if he or she disagrees w/ the reasoning why the other party is wanting to amend. The party may amend ONLY IF the opposing party consents in writing to it or the court grants leave to amend.

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Party must file a motion to leave to amend. NOTE: If the would be prejudiced by the amended complaint, can reimburse the for any inconvenience it would have on the (e.g., pay for depos how has to conduct, allow more time, etc.) A motion to amend should be denied only when the other party it would prejudice and that prejudice cannot be eliminated by giving that party more time to prepare or money compensation for the inefficiencies i.e., deny the motion when there is prejudice that cannot be cured by time or money 15(a)(3) - s Time to Respond The defending party must respond within the time remaining to respond to the original pleading or within 10 days after service of the amended pleading, whichever is later. Thus, will never have fewer than 10 days after service of the amended complaint in which to respond. Amendments During or After Trial Rule 15(b)(1) Based on Objections at Trial The rule comes into play only when a party seeks to introduce evidence at trial of a claim or defense that she did not plead. Known as a Variance somebody is trying to put on evidence of something she did not plead. Today, variance is a basis for objection by the other party at trial. In other words, when a party seeks to introduce evidence at trial that goes beyond the scope of her pleadings, the other party may object and ask the court to exclude the evidence, so it will not be part of the trial record the fact-finder considers in reaching a conclusion. If the other party objects to variance, the court applies this section. This rule permits the party proffering the evidence to move to amend. When a party objects to the introduction of evidence by the other party on the ground of variance, the court may permit the pleadings to be amended. The standard for being allowed to amend is found in the second sentence of Rule (b)(1): the court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that partys action or defense on the merits. The last sentence reminds the court that it can issue a continuance of the trial to allow the opposing part to do what she has to do to respond to the evidence. Rule 15(b)(2) Consent If a party does not object or fails to object or otherwise consents to the introduction of the evidence, the court applies this section. When a party acquiesces in allowing the evidence, the first sentence of 15(b)(2) provides that the issues addressed in that evidence must be treated in all respects as if raised in the pleadings. Thus, the variance is ignored, the evidence is admitted at trial, and we treat the pleadings as though they included the issues raised by the evidence. Rule 15(c) Relation Back of Amendments (i.e., when the Statute of Limitations has ran) 15(c)(1)(B) Relation back is permitted if the amended pleading arose out of the conduct, transaction, or occurrence set out or attempted to be set out in the original complaint. Thus, courts permit amendment w/ relation back when the claim being added simply espouses a new theory of liability arising from the same real-world events alleged in the original complaint; or If the amendment merely fixed a defective jurisdictional allegation from the original complaint, but concerns the same real-world events as the original, relation back is appropriate. Example of when it is not appropriate: when the amended complaint alleged an injury on a date earlier than that alleged in the original complaint.

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15(c)(1)(C) Three requirements must be satisfied: 1. 15(c)(1)(B) - The claim arises from the same conduct, transaction, or occurrence as that stated in the original complaint; 2. 15(c)(1)(C), and (i) - Within 120 days after filing of the original complaint, the new has received such notice of the suit that she will not be prejudiced in defending; and 3. 15(c)(1)(C)(ii) - Within the same period, the new knew or should have known that the action would have been brought against it, but for a mistake concerning the proper partys identity NOT EVERY AMENDEMNT RELATES BACK TO THE EARLIER PLEADING. CTO Tests: Logical Relationship Test Save time and money Overlapping Evidence Test Same evidence NOTES: True/False Same CTO If new claim arises out of same CTO, the new claim is treated as if it were included in the original complaint for statute of limitations purposes. TRUE If new claim was not time barred when original complaint was filed then will be able to pursue it. TRUE If new claim was time barred when original complaint was filed then will not be able to pursue it. TRUE True/False Not Same CTO If new claim does not arise out of same CTO, the new claim does not get the benefit of relation back. TRUE If new claim is not time barred when motion to amend is filed then will be able to pursue it (assuming all other conditions satisfied). TRUE If new claim is time barred when motion to amend is filed then will not be able to pursue it. TRUE 15(d) Supplemental Pleadings Supplemental pleadings concern the assertion of things that occurred AFTER the pleading was filed. They serve to update the parties and the court on the dispute by bringing to their attention facts that had not occurred when the pleading was filed. The matter MUST be raised by motion by the party seeking to leave to amend.

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 Most court allow UNLESS: 1. It will cause undue delay or prejudice; or 2. If the party seeking leave to supplement is guilty of bad faith NOTES: 15(a)-(c) applies to all Rule 7(a) Pleadings (1)-(7) Amendments Before Trial One free amendment 15(a)(1) 21 days after service of pleading; or 21 days after service of responsive pleading if responsive pleading required; or 21 days after service of rule 12(b) motions All other amendments 15(a)(2) Written consent of opponent; or Motion to court Nearly always granted leave freely given when justice so requires Occasionally denied opponent prejudiced in way that cant be eliminated by time or money. Amendments During or After Trial Opponents objects to evidence as beyond pleadings rule 15(b)(1) Will evidence promote resolution on merits? Will opponent be prejudiced in way that cannot be eliminated by time/money? Opponent fails to object to evidence as beyond pleadings rule 15(b)(2) Proponent can make post-trial motion to amend Failure to formally amend does not affect outcome of case Amended v. Supplemental Pleading Rule 15(a) v. Rule 15(d) Amendment raises matter that occurred prior to original pleading

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Supplement raises matter that occurred after the original pleading.

DISCOVERY # 1 REQUIRED PRE TRIAL DISCLOSURES What Information Must Each Party Disclose? Rule 26(a)(1)(A)(i) - Witnesses who may possess discoverable information supporting claim/defense Impeachment refers to the process of discrediting a witness on the stand. Rule 26(a)(1)(A)(ii) - Documents that may be used to support claim/defense. Rule 26(a)(1)(A)(iii) - Computation of damages plus evidentiary materials that support Rule 26(a)(1)(A)(iv) - Insurance policies that may provide coverage for judgment amount. When Must The Parties Make Their Initial Disclosures? Rule 26(a)(1)(C) No later than 14 days after the parties Rule 26(f) conference. Or (D) no later than 30 days after service on later-joined parties. Rule 26(f) No later than 14 days after their conference. What About Information That Is Uncovered Or Acquired Later In The Case? Rule 26(e)(1)(A) Disclosure is required unless previously made know during discovery

# 2 REQUIRED DISCLOSURES CONCERNING EXPERT WITNESSES

What Information must each party disclose? In General - Rule 26(a)(2)(A) requires a party to disclose to the other parties the identity of any witness it may use at trial to present expert testimony. Requirements - Rule 26(a)(2)(B) requires that the disclosure of the expert witness must be accompanied by a written report (prepared and signed by the witness) and the report must contain the following: (a)(2)(B)(i) Opinions that may be offered and the basis for each of them. (a)(2)(B)(ii) Data considered in forming those opinions (a)(2)(B)(iii) Any exhibits to be used to support or summarize her opinions (a)(2)(B)(iv) The witnesses qualifications including any publications authored in the past 10 years.

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(a)(2)(B)(v) A list of any and all cases the expert has been involved in. (a)(2)(B)(vi) What the expert is being paid for this testimony. Why use them? (1) Used as a consultant to a party in preparing the case; or (2) Offer opinions if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in evidence. Time to Respond Rule 26(a)(2)(D)(i) requires that the information must be produced at least 90 days before the trial date. Failure to do so can result in SANCTIONS Rule 26(a)(2)(D)(ii) Expert witnesses used to rebut must be disclosed 30 days after the other side discloses their expert witnesses. (60 days before trial). Depose of Expert Witness Rule 26(b)(4)(A) allows the other party to depose the expert witness. Rule 26(b)(4)(A) Testifying Experts Pay the Expert Rule 26(b)(4)(E) requires the party requesting discovery to pay the expert a reasonable fee for time spent in responding to discovery. However, Rule 26(b)(4)(D) - Consulting Experts If the court concludes that the expert was not actually retained, but was informally consulted, there can be no discovery concerning the expert not even their identity. What about information relating to an opinion that is developed or considered later? Rule 26(a)(2)(E) the parties must supplement these disclosures. Rule 26(e)(1)(A) New information requires disclosure

# 3 REQUIRED PRETRIAL DISCLOSURES

What information must each party disclose? Rule 26(a)(3)(A) Requires the party to provide to the other parties and promptly file the following information with each party and with the court about the evidence that it may present at trial (a)(3)(A)(i) Witnesses whom each party expects to call or may call at trial. (a)(3)(A)(ii) Deposition excerpts are listed separately; and (a)(3)(A)(iii) The identification of each document or other exhibit to be offered at trial.

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 When must the parties disclose this information? Rule 26(a)(3)(B) 30 days before trial in the absence of a court order

ISSUE 4: SANCTIONS FOR FAILURE TO DISCLOSE

What happens if a party fails to disclose information covered by Rule 26(a)? Rule 37(c)(1) then the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial . . . Unless the failure was substantially justified or is harmless. If this occurs, the court can: (A) Payment of attorney fees (B) Inform the Jury of the partys failure; and (C) Impose other appropriate sanctions under Rule 37(b)(2)(A)(i)-(vi). Rule 37(a)(1) A party may move for an order compelling disclosure or discovery. Rule 37(a)(3)(A) Compel Disclosure Rule 37(a)(3)(B) Compel a Discovery Response (1) Failure to answer a question at a deposition; (2) Failure of an entity to designate a proper person for a deposition under Rule 30(b)(6); (3) Failure to answer an interrogatory; and (4) Failure to state in response to a request for production under Rule 34 that inspection will be permitted or to permit the actual inspection. Failure to obey a court order Rule 37(b)(2)(A): Permits the court to impose significant sanctions on the disobedient party. The rule empowers the court to make orders that are just, and sets forth a list of possibilities in: (i) Facts are automatically established (ii) Prohibit claims or defenses (iii) Strike Pleadings (v) Dismiss action (vi) Default

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(vii) - Contempt Rule 37(b)(2)(C) - Attorneys fees Total Failure to Comply Rule 37(d)(1)(A) (1) Failure to appear for depo; (2) Failure to serve answers or objections to Rogs; (3) Failure to serve a written response to a request for production; Do not need to move for a motion to compel. The party can move straight for sanctions. Rule 37(b)(2)(A)(i) (vii). Except Rule (vii) No contempt (b/c the party did not violate a court order) Rule 37(d)(2) Tells us that the party failing to respond cannot escape sanctions by arguing that the discovery request was objectionable. Rather, she must invoke her objection by seeking a protective order under Rule 26(c).

SCOPE OF DISCOVERY What are the methods by which discovery may be pursued? Depositions Interrogatories Production of Documents or permission to enter land Physical and mental examinations Request for Admission What is the scope and what are the limitations on discovery pursued by these methods? Rule 26(b)(1) Information must be relevant to a claim or defense

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Information must not be exempt from discovery Rule 26(b)(5)(A) provides, the party withholding the information on the basis of privilege must expressly make the claim and describe the nature of the documents, communications, or tangible things not produced or disclosed and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. Failure to assert the privilege results in a WAIVER. Attorney-client privilege ELEMENTS 1. Communication between attorney and client; 2. Made in confidence; and 3. For the purpose of obtaining or giving legal advice. Upjohn v. United States Rule 26(b)(3) Work Product Doctrine 1. Documents and tangible things 2. Prepared in anticipation of litigation or trial; and 3. By or for a party or its representative HICKMAN v. TAYLOR 7 Important Points 1. In General - Rule 26(b)(3) Work product consists of materials prepared in anticipation of litigation nor for trial. Work product must be generated with an eye toward litigation, even if no case has yet been filed. So long as the party-to-be prepares the material b/c she anticipates that there will be litigation, the requirement is met. On the other hand, materials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other nonlitigation purposes are not protected. 2. Rule 26(b)(3)(A) provides that ordinarily, a party may not discover work product. Ex: if Party A engages in investigation in anticipation of litigation, Party B should not be able to gain access to it. To allow Party B easy access to the material would reward freeloading. As with privilege however, the party asserting work product protection has the burden of raising the issue Rule 26(b)(5)(A)(i). Failure to do so will WAIVE the protection 3. What consists of Work Product - Rule 26(b)(3)(A) defines work product as only documents and tangible things prepared in anticipation of litigation. Party B requesting Rogs from witnesses that Party A has interviewed? Courts hold discovery of a detailed description of the contents of documents though Rogs is equivalent to discovery of the documents themselves and should NOT be permitted.

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4. Ways to overcome - Rule 26(b)(3)(A)(ii) - the work product protection can be overcome if the party seeking the information shows 2 things: (1) Substantial need for the materials to prepare her case; and (2) That she cannot, without undue hardship, obtain their substantial equivalent by other means. In other words, she needs this material and basically cannot get it elsewhere. 5. Protection against Disclosure - Rule 26(b)(3)(B) provides that the court, in ordering the production of materials as to which the exception to work product has been invoked, must protect against disclosure of certain things: mental impressions, conclusions, opinions, or legal theories. 6. Rule 26(b)(3) is not limited to material generated by a lawyer. Rule 26(b)(3)(A) protects material generated in anticipation of litigation by or for a party or its representative (including her attorney, consultant, surety, indemnitor, insurer, or agent.) (b)(3)(B) Plainly provides protection for opinion work product generated by the attorney or other representative. 7. Previous Statements Rule 26(b)(3)(C) gives anyone a right to obtain her own previous statement about the action or its subject matter. What authority does the court have to prevent discovery overkill? Rule 26(c) - Protective Orders (c)(1): Prevent annoyance, embarrassment, oppression, undue burden (c)(1)(A): Discovery prohibited on certain matters (c)(1)(B): Discovery limited to certain time or place (c)(1)(C): Discovery shared with only certain people involved in the case (c)(1)(D): Discovery kept out of public portion of court file (c)(1)(E): Depo of a child.

DEPOSITIONS What are the basic principles? Rule 30(c)(1) Sworn testimony obtained through trial-type questions and answers. Rule 30(b)(3) Methods of Recording (A): Typically recorded by stenograph

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 (B): Other means are permitted. What are the procedural requirements and limitations? Rule 30(b)(1) Reasonable notice must be given to witness and other parties in writing. Rule 30(a)(2)(A)(i) 10 depos per side. Rule 30(d)(1) 1 day, maximum 7 hours long. Rule 30(b)(2) / Rule 34(b)(2)(A) 30 day advance notice when you want witness to produce documents. Rule 30(b)(6) Entity can be deposed through person w/ knowledge of specific matters. Notice of deposition must identify specific areas of inquiry Entity must then designate suitable representative. Rule 30(a)(2)(B) take a depo of a witness in prison What are the additional requirements when the witness is a non-party? Rule 45(a)(2)(B) Subpoena issued from court for district in which depo will be taken Rule 45(b)(1) Service of subpoena by hand delivery Rule 45(b)(1) / 1821 Witness fee and mileage allowance tendered with subpoena, $40 per day plus $0.51 per mile round trip. Rule 45(c)(1) Attorney issuing subpoena must avoid imposing undue burden or expense Rule 45(c)(3)(A)(ii) 100 mile travel limitation 45(c)(3)(B)(iii) court may quash or modify subpoena that requires extensive travel. Rule 45(e) Failure to comply with subpoena constitutes contempt of court. INTERROGATORIES What are the basic principles? Rule 33(a)(1) written questions directed to another party. Rule 33(a)(2) questions may concern evidence, facts contentions, opinions, conclusions

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Rule 33(b)(3) answers to questions are written and signed by party under oath. Rule 33(c) Answers to questions may be used as evidence at trial. Rule 33(d) documents may be produced in lie of answers to questions. Answers may be derived form business records of answering party. Burden of obtaining answer is substantially same for both parties. What are the procedural requirements and limitations? Rule 33(a)(1) no more than 25 Rogs (including subparts) Rule 33(b)(2) answers and objections must be made within 30 days Rule 33(b)(4) objections not made within 30 days is waived absent relief for good cause. REQUEST FOR PRODUCTION What are the basic principles? Rule 34(a)(1)(A) written requests for specified categories of documents Rule 34(a)(1) Party delivers documents in possession, custody or control. What are the procedural requirements and limitations? Rule 34(b)(2)(A) Responses and objections must be made within 30 days. Rule 34(b)(2)(B) Inspection permitted as to documents for which objection is not made Rule 34(b)(2)(E)(i) Documents produced as kept or organized per categories in request What are the additional requirements when a non-party is asked to produce documents? Rule 45(a)(2)(C) Subpoena issued from court for district in which production to be made Rule 45(b)(1) Service of subpoena by hand delivery Rule 45(c)(1) Attorney issuing subpoena must avoid imposing undue burden or expense Rule 45(c)(3)(C) court may order reimbursement for expenses incurred in responding. Rule 45(c)(3)(B)(i) court may quash/modify subpoena to protect confidential information. Rule 34(c) explains that a non-party (like a doctor) can be subpoenaed to produce documents as provided in Rule 45.

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Rule 45(a)(1)(A)(iii), in turn, explains that a subpoena can require the production of documents at a specified time and place.

PHYSICAL AND MENTAL EXAMINATION What are the basic principles? Rule 35(a)(1) Independent medical examination when partys condition is in controversy. in personal injury action places physical condition at issue. Allows to verify/rebut existence and extent of s injury. What are the procedural requirements and limitations? Rule 35(a)(2)(A) Court order required for independent medical examination. Good cause is required as indicated in (a)(1). Good cause exists when injury is placed in controversy. REQUEST FOR ADMISSION What re the basic principles? Rule 36(a)(1)(A), (B) written statements that opponent must admit or deny. Statements or opinions about facts. Application of law to facts. Authenticity of documents. Rule 36(a) Admission for purpose of the pending action only Rule 36(b) Statement admitted under this section is binding unless court grants withdrawal. The statements are not binding against other litigation. What are the procedural requirements and limitations? Rule 36(a)(3) matter is deemed admitted absent denial or objections within 30 days. Bases for objections must be stated. Rule 36(a)(4) Reasons for any inability to admit/deny must be provided. Reasonable inquiry before denial of knowledge or information must be made. NONCOMPLIANCE WITH DISCOVERY RULES What can party do when other party fails to make a required or requested disclosure? Rule 37(a)(3)(A), (B) motion to compel disclosure or discovery. Used for both required disclosures and discovery. Rule 37(a)(1) must be preceded by good faith effort to resolve the matter.

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Rule 37(a)(5)(A), (B) Sanction following motion to compel loser pays winners fees and costs. Exception is when losers position is substantially justified or circumstances make award unjust. Rule 37(d)(1) Motion for severe sanction following total failure to provide discovery. Total failure to provide discovery sought under Rules 30 (discovery), 33 (Rogs), 34 (RFP). Rule 37(d)(1)(B) Must first make a good faith effort to resolve the problem before you make a motion for sanctions. Rule 37(d)(3) Court may impose a full range of non-exclusive sanctions. Court can may failing party pay fees and costs on motion. (b)(2)(A)(i) Facts established (b)(2)(A)(ii) Party prevented from supporting/opposing a claim/defense. (b)(2)(A)(iii) Strike a pleading until defect is corrected. (b)(2)(A)(iv) Staying proceedings until defect is corrected. (b)(2)(A)(v) Dismiss action in whole or in party (b)(2)(A)(vi) Enter default judgment Rule 37(d)(2) Defense that discovery is objectionable is typically not available. Unless the party failing to act has a pending motion for a protective order under Rule 26(c). What can a party do when other party fails to comply with court order requiring discovery? Rule 37(b) motion for sanctions for failure to comply with court order (b)(2)(A)(i) Facts established (b)(2)(A)(ii) Party prevented from supporting/opposing a claim/defense. (b)(2)(A)(iii) Strike a pleading until defect is corrected. (b)(2)(A)(iv) Staying proceedings until defect is corrected. (b)(2)(A)(v) Dismiss action in whole or in party (b)(2)(A)(vi) Enter default judgment (b)(2)(A)(vii) Hold party in contempt Rule 37(b)(2)(C) Sanctions are not mutually exclusive. Court must order recalcitrant party to pay fees and costs on motion. Unless the failure was substantially justified or other circumstances make an award of expenses unjust. What happens when a party wishes to use information that it did not disclose? Rule 37(c)(1) Preclusion: evidence cannot be used on motion, at hearing, or at trial. Unless when failure to disclose is substantially justified or when failure to disclose is harmless. Rule 37(c)(1)(A)-(C) court may impose additional sanctions in appropriate cases. Other sanctions not well suited for failure are favorable evidence. Are the procedures different when a non-party fails to make discovery? Rule 37(a)(2) Motion to compel brought in court in district in which discovery is sought. Rule 45(e) failure to comply with subpoena may be considered contempt of court.

SUMMARY JUDGMENT What is the purpose of a motion for summary judgment? 56(a) Determines whether a real factual dispute exists given the evidentiary record. The grant of summary judgment averts trial altogether. Summary judgment is appropriate only when evidence and admissions proffered before trial show that there is no genuine issue of material fact. In such a case, no trial is required, and the court can rule as a matter of law. Trial is unnecessary in the absence of a real dispute about the facts Real dispute = admissible evidence supporting each partys contention MSJ verifies that the paper dispute in the pleadings is an actual dispute What is the standard governing a motion for summary judgment? No genuine issue of material fact; moving party is thus entitled to judgment Focus is on material facts Page 60 of 62

A material fact is one that may affect the outcome of the case Essential elements of claim are material facts Essential elements of affirmative defense are material facts Court asks whether there is a real dispute about these facts Focus is on the genuineness of the alleged factual dispute Sufficient admissible evidence exists regarding the fact Such that reasonable jury Could return a verdict for the non-moving party *Genuine = the extent to which either party has the evidence to support its position What materials can the court consider in connection with a motion for summary judgment? 56(c)(1)(A) Information obtained during discovery or as result of mandatory disclosures Testimony from depositions Documents produced in response to requests or otherwise disclosed Answers to interrogatories Answers to RFAs Affidavits/Declarations Witness must provide testimony based on personal knowledge (cannot be hearsay like in Celotex) Executed before notary public or signed under penalty of perjury Pleadings Limited purposes in context of summary judgment What is at issue in case? Scope and nature of claims Scope and nature of defenses What did defendant admit/deny? Admissions of material facts What happens when the defendant is the moving party? 56(c)(1)(A) and (B) Defendant must first satisfy his burden of production 2 ways Submit (its own) affirmative evidence negating an essential element of s claim OR Review record and show lacks evidence on essential element Plaintiff must then( and only then) satisfy her responsive burden of production 2 ways Submit her own affirmative evidence supporting challenged element Review record and show overlooked evidence on essential element s obligation to respond attaches only if satisfies initial burden Plaintiff defeats motion if she has legally sufficient evidence to support element Plaintiff gets the benefit of the doubt Court views evidence in the light most favorable to Court draws all reasonable inferences from the evidence in s favor Court treats testimony in s affidavits as true Sham affidavit exception Court must do this because jury could do this Jury might view evidence in light most favorable to etc. , Protects against improvident withdrawal of issue from jury In deciding motion, court must also consider s burden of proof at trial Preponderance versus clear and convincing Preponderance = more probable than not that fact exists Clear and Convincing = highly probable that fact exists must produce more/better evidence when burden of proof is higher *remember that if there is a higher burden of proof required at trial, the same burden of proof will be required for summary judgment. What happens when plaintiff is the moving party? Plaintiff must first satisfies her burden of production Submit evidence entitling her to directed verdict if unchallenged at trial Page 61 of 62

Establish beyond peradventure all essential elements of claim Extremely heavy burden for to satisfy High threshold because has burden of production and persuasion can have lots of evidence but still not convince the jury Defendant must then satisfy his responsive burden of production Submit his own affirmative evidence negating essential element s obligation to respond attaches only if satisfies initial burden Defendant defeats motion if he has legally sufficient competing evidence In deciding the motion, the court must: View the evidence in the light most favorable to Draw all reasonable inferences from the evidence in s favor Credit s affidavits as true Sham affidavit exception In deciding motion, court must also consider s burden of proof at trial What happens when the non-moving party needs time to conduct discovery or obtain affidavits? 56(d)(2)Court must provide non-movant with time to obtain information to oppose motion o

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