I.

Personal Jurisdiction A. Addresses the authority of a court to exercise power over an individual or entity and adjudicate their rights B. State long arm state statutory authority i. Definition a.) A statute providing for jurisdiction over a non resident defendant who has had contacts with the territory where the statute is in effect ii. Different types of state long arms statute a.) Enumerated act statute laundry list, if the defendant has not in engaged in any conduct set forth in the statute, then the court in that state will not be able to exercise jurisdiction over that defendant, even if such exercise of jurisdiction would be constitutional b.) Rhode Island Model - To the full extent of the Constitution c.) When a State has a long arm statute that either follows enumerated or has been interpreted to extent jurisdiction to the full limits of due process, the standard of the two step process of analyzing the statutory and constitutional authority to exercise jurisdiction collapses into a single step constitutional analysis iii. Apply Federal Rule Civil Procedure 4(k) in federal court a.) Serving a summons of filing a waiver of service establishes personal jurisdiction over a defendant: 1.) Who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located 2.) Who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summon was issued; 3.) When authorized by a federal statute b.) Federal Claim Outside of State Court Jurisdiction 1.) For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if i. The defendant is not subject to jurisdiction in any state courts of general jurisdiction ii. Exercising jurisdiction is consistent with the United States Constitution and laws c.) To challenge personal jurisdiction in federal court 1.) Defendant may make a motion under Rule 12(b)(2) to dismiss the action for lack of personal jurisdiction 2.) Defendant may include challenges in their answer C. Constitutional Authority i. 14th Amendment Due Process analysis a.) Pennoyer traditional bases of personal jurisdiction based on physical presence/consent where the suit is merely in personam, constructive service in this form upon a non resident is ineffectual for any purpose 1.) In state service [Burnham]

2.) Domicile residence and the intent to remain for an indefinite period of time 3.) Consent, e.g. forum selection clause [Carnival Cruise Line] i. Heavy burden of proof required to set aside the clause ii. Forum selection clause should control absent a strong showing that it should be set aside 4.) State Domestication Statute where the state appoints an in state agent for service of process [Hess] e.g. nonresident causes a car accident 5.) Transient Presence a court may exercise jurisdiction based on service on a defendant who is simply passing through the state briefly D. Specific and General Jurisdiction a.) General jurisdiction when a defendants contacts with the forum are continuous and systematic and sufficiently substantial, it is possible that the court will be able to exercise general jurisdiction over the defendant, with the ability to adjudicate disputes in any matter involving the defendant, related or unrelated to the forum contacts b.) If general, minimum contacts need to be systemic and continuous c.) See Perkins d.) arising out of and relate to the cause of action i. Specific jurisdiction jurisdiction that stems from the defendant having certain minimum contacts within the forum state so that the court may hear a case whose issues arise from those minimum contacts a.) If specific, contacts can be less, isolated or a single occurrence may be sufficient b.) See McGee ii. Specific/General Jurisdictions a.) COA arose from contact specific b.) COA did not arise from contract general c.) General contacts must be continuous and systemic d.) Specific isolated/single occurrence may be sufficient 1.) Benefits & protections of state law obligations 2.) Convenience 3.) Interest 4.) Shared interest in states E. International Shoe i. Old test doing business ii. Due process requires only that in order to subject a defendant to a personal jurisdiction, if he be not present within the territory of the forum, he have certain minimum contract with it such that the maintenance of the suit does not offend the traditional notion of fair play and substantial justice iii. The purpose of minimum contacts perform two functions

iv.

a.) Protecting defendants against burdensome, inconvenient litigation b.) Enforcing a respect for interstate federalism and the limits on state sovereign authority For general and specific, analyze both prongs of minimum contacts and reasonableness factors: a.) Minimum Contacts 1.) Defendants purposeful availment of benefits and protections of forum state law 2.) Such that defendant could reasonably forsee being haled into forum court 3.) Unilateral activities of a third party who claims some relationship with a non resident defendant is not sufficient [see Hanson] b.) Different types of cases require slightly different application of minimum contacts/purposeful availment test: 1.) Stream of commerce cases [World-Wide Volkswagon/Ashi] i. Substantial connection between defendant and the forum State necessary for finding a minimum contracts must come about by an action of the Defendant purposefully directed toward the forum state [OConnor] versus - Additional conduct by defendant may indicate intent or purpose to serve the market in the forum State, such as a.) designing the product for the market in the forum State, b.) establishing channels for providing regular advice to customers, or c.) marketing the product through distributors who has agreed to serve as the sales agent in the forum State ii. Mere awareness [Brennan] a.) As long as a participant in this process is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise iii. Foreign policy if applicable [Ashai] a.) the procedural and substantive interest of other nations in a state courts assertion of jurisdiction will be best served by a careful inquiry into the reasonableness of the assertion of jurisdiction in the particular case and an unwillingness to find the serious burdens on an alien defendant outweighed by minimal interests on the part of the plaintiff of the forum State b.) Great care and reserve should be exercised when extending our notion of personal jurisdiction into the international field 2.) Contract cases i. contract plus analysis + factors that must be evaluated to determine whether defendant purposefully established minimum contacts within forum state

ii.

iii.

1.) Prior negotiations 2.) Contemplated future consequences 3.) Terms of the contract 4.) Parties actual course of dealing See Burger King a contractual relationship with a forum state alone is insufficient to confer jurisdiction over a non resident in the forum A contact is an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction

3.) Internet contract i. When an entity intentionally reaches beyond its boundaries to conduct business with foreign residents, the exercise of specific jurisdiction is proper ii. Zippo sliding scale a.) Active - If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper b.) Interactive If defendant is a website where a user can exchange information with the host computer, examination of the level of interactivity and commercial nature of the exchange of information that occurs on the Website. c.) Passive - If defendant is simply posting information on an Internet Web site which is accessible to users in foreign jurisdictions and does no more than make information available to those who are interested in it is not grounds for exercise personal jurisdiction iii. Some courts have adapted Zippos test by infusing it with some requirement of intentional, forum specific targeting or express aiming or something more c.) Fairness/Reasonableness/Convenience Factors i. Defendants burden must make compelling case for inconvenience/unreasonable applying all factors below - Burden on defendants - Forum states interest - Plaintiffs interest in obtaining relief - Interstate judicial interest in obtaining the most efficient resolution of controversies - Shared interest of the states II. Constitutional Notice Requirement: Personal Jurisdiction A. Rooted in the Due Process Clause of the 14th Amendment and 5th Amendment in Rule 4

i.

No State shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States; nor shall nay State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

B. Notice i. Requires notice to be reasonably calculated, under all the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections [Mullane] a.) Under this standard, proper notice must convey sufficient information to notify the party of how and by when it should respond and must allow reasonable time to appear b.) The most reasonable means that is available and reasonably practical, then it should be employed. If a superior method is too expensive, time consuming or burdensome, it is not required. c.) When mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to attempt to provide the property owner before selling the property, if it is practicable to do so [Jones] ii. reasonableness and hence constitutional validly of the chosen method may be defended on the grounds that it is in itself reasonably certain to inform those affected iii. In rem or quasi in rem service by publication may be acceptable when accompanied by attachment, but only if the names and addresses are unknown and not reasonably ascertainable iv. In personam constructive notice by publication is generally not reliable C. Actual Notice i. The parties actually receive notice is not required but when mailed notice is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to person before further action is taken, if it is practicable to do so D. Balance Interest i. Balance interest between the plaintiff and the defendant III. Subject Matter Jurisdiction A. Jurisdiction over the nature of the case and the type of relief sought; the extent to which a court can rule on the conduct of persons or the status of things i. State courts are courts are mainly courts of general jurisdiction that can hear cases involving any subject ii. Federal courts are courts of limited jurisdiction that may only hear cases of a kind that are affirmatively authorized to hear iii. Federal courts may not hear cases seeking the issuance of divorce, an award of spousal support, child custody decrees and probate or will matters B. Article III 2 of the U.S. Constitution i. The judicial Power shall extend to all Case, in Law and Equity, arising under the Constitution, the Laws of the U.S, and treaties made, or which shall be made, under their Authority

C. 28 U.S.C 1332 i. The district court shall have original jurisdiction of all civil actions where the matter of controversy exceeds the sum or value of $75,000, exclusive of interest and cost, and is between a.) Citizens of different States b.) Citizens of a State and citizens or subjects of a foreign state c.) Citizens of different States and in which citizens of subjects of a foreign state are additional parties; and d.) A foreign states, as plaintiff and citizens of a State or of different States D. Diversity Requirement i. Complete Diversity a.) To satisfy the diversity of citizenship requirement there must be complete diversity, meaning that where citizens of the same state appear on both sides of a dispute, diversity jurisdiction is unavailable as required by 28 USC 1332(a) [Strawbridge] ii. Minimal diversity a.) Article III permits the extension of federal jurisdiction to cases where parties from the same state are on both sides of the dispute so long as there are adverse parties who are not co citizens b.) The burden of pleading the diverse citizenship is upon the party invoking federal jurisdiction and if the diversity jurisdiction is property challenged that party also bears the burden of proof c.) The complete diversity rule is a statutory rule, therefore leaving open the possibility of interpreting the Constitution to require less diversity iii. Domicile true and fixed permanent home and principal establishment residence within a state coupled with the intention to remain there for an indefinite period of time a.) Mere residence in the State is not sufficient and persons may not have multiple domiciles iv. Corporations a corporation shall be deemed to be a citizen of any State by which it has been incorporated an of the State which it has it principal place of business v. To determine the principal place of business, several states were divided on which of these test to use until the Supreme Court recently decided to adopt the nerve center test [Hertz] 1.) Nerve center the prevailing approach locus of corporate decision making authority and overall control 2.) Corporate activities - location of a corporations production or service activities 3.) Total activities a hybrid of the previous two approach vi. Unincorporated Associations entities such as partnerships and labor unions are treated as a collection of individuals so citizenship is determined by citizenship of constituent members of the organization E. Time of Filing Rule

Whether the diversity of citizenship requirement is satisfied is a matter that is determined at the time that the complaint is filed ii. Subsequent changes in citizenship by the parties that result in the destruction of complete diversity do not undermine diversity jurisdiction so long as jurisdiction was proper at the time the action was filed iii. Exception to time of filing rule a.) A court may exercise jurisdiction over a dispute that initially lacked complete diversity if the jurisdictional defect is subsequently cured by the dismissal of the party that destroyed complete diversity F. Domestic Relations Exceptions i. Federal court may not hear cases seeking the issuance of divorce, an award of spousal support, or child custody decrees ii. Federal court may not probate or annual a will, administer a decedents estate or dispose of property that is in the custody of probate court G. Alienage Jurisdiction i. A special class of diversity jurisdiction involving U.S. citizens as litigants ii. 28 USC 1332 provides jurisdiction over suits involving aliens when the action involves citizens of a State and citizens or subjects of a foreign state iii. A permanent resident alien are treated as citizens of the state in which they reside for purposes of the diversity statutes iv. Despite the plain language of the 1332(a), the aligenage amendment was clearly appears to have been intended only to eliminate subject matter jurisdiction of cases between a citizen and an alien living in the same state v. Stateless people does not qualify for federal jurisdiction H. Basic Amount in Controversy Requirement i. Exceed $75,000 exclusive interest and cost a.) The amount claimed must be made in good faith only when it appears to a legal certainty that the claim is really for a jurisdictionally insufficient amount should a court dismiss the matter on jurisdictional grounds ii. Single plaintiff may aggregate claim (related or unrelated) against a single defendant iii. Single plaintiff may not aggregate claim against multiple defendants iv. Multiple plaintiff may aggregate claims only if they are based on a common undivided interest (trust or property) v. Multiple plaintiffs may not aggregate separate and distinct claims to reach the jurisdictional amount, even if factually related vi. When aggregating claims to achieve a jurisdictional amount in controversy involving either multiple plaintiffs or defendants, only do so when the multiple parties are suing jointly on an undivided interest or are being sued jointly IV. Subject Matter Jurisdiction: Federal Questions

i.

A. Federal Question Jurisdiction the authority of federal courts to hear cases involving federal constitutional, statutory or treaty law i. Article III 2 extends judicial power to all cases, in Law and Equity, arising under this Constitution, the Laws of the United States and Treaties a.) The question forms an original ingredient in every cause ii. 28 U.S.C. 1331 The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States B. Osborn test i. The original ingredient in every cause or claim [interpreting Article III] C. Well Pleaded Complaint rule i. To qualify for statutory federal question jurisdiction the presence of a federal question must appear in the plaintiffs presentation of its case in the context which limits itself to a statement of its own cause of action ii. This rule makes the plaintiff the master of the complaint because they can avoid federal jurisdiction by exclusive reliance on state law iii. The court will not allow for artful pleading to manipulate federal jurisdiction a.) Complete preemption doctrine applies when the preemptive force of a statute is so extraordinary that it converts an ordinary state common law complaint stating a federal claim for purposes of the well pleaded complaint rule D. Creation Test i. Supreme court developed test for arising under jurisdiction ii. Federal law creates cause of action E. Dependency test i. Right to relief depends on resolution of an issue of federal law a.) Smith & Moore b.) Franchise Tax & Merrell Dow disputed, substantial proposition of federal law inherent in plaintiffs claim c.) Grable a state law claim necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities V. Supplemental Jurisdiction A. Enables the federal court to hear claims that would not get into federal court standing alone B. Gibbs common nucleus of operative facts C. Federal Statutory authority 1367 i. Federal courts shall have supplemental jurisdiction over a.) all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same or controversy under Article III including claims that involve the joinder or intervention of additional parties

VI.

Supplemental Jurisdiction is discretional and to aid in determining whether court should exercise supplemental jurisdiction a.) Judicial economy b.) Convenience and fairness of litigants c.) Likelihood of jury confusion in treating legal theories of relief D. 1367(c) The district court may decline to exercise supplemental jurisdiction over a claim under subsection (a) if i. The claim raises a novel or complex issue of State law ii. The claim substantially predominates over the claim or claims over which the district court has original jurisdiction, iii. The district court has dismissed all claims over which it has original jurisdiction, or iv. In exceptional circumstances, there are other compelling reasons for declining jurisdiction iii. Amount in controversy a.) The amount must be made in good faith; the court should accept the amount indicated by the plaintiff unless there is a legal certainty that such an amount is not attainable b.) As long as one named plaintiffs satisfies the amount in controversy, claims of other Ps joined through Rules 20 permissive joinder Ps or 23 class actions Ps may be heard through 1367(a) supplemental jurisdiction even if those additional claims do not satisfy the amount c.) Only the named plaintiffs citizenship is considered E. Where diversity serves as the sole basis of jurisdiction, remember to analyze both (a) and (b) to determine if supplement jurisdiction is proper. Where the supplemental claims are by plaintiffs against joined parties or by plaintiffs to be joined the claims do not qualify for supplemental jurisdiction if jurisidicon over such claims would be inconsistent with the requirements of diversity jurisdicition Removal Jurisdiction A. A defendant may remove a case to federal court if a plaintiff files the complaint in a state court i. 1441 1446 1447 ii. If the federal court decides it does not have subject matter jurisdiction, federal court remands back to state court iii. Mottelys well pleaded complaint rule applies in the removal context the action must met all the same subject matter jurisdiction requirements as if filing originally in federal court B. Diversity i. No removal if D is a citizen of the forum 1441(b) ii. No removal if a diversity case and more than one year after the case filed in state court 1446(b) C. Procedural Removal & Remand Procedures i. Under the general removal statute, only defendants may remove cases to federal courts

ii.

To remove a case, a defendant simply must file a notice of removal in the district court of the United States for the district and division within which such action is pending iii. Filing a notice of removal does not constitute a waiver of any challenge to personal jurisdiction iv. A defendant has thirty days after receipt of service of the complaint to file a notice of removal with the federal court v. It is possible for the defendant to waive its right to removal by proceeding to defend the action in state court or otherwise invoking the process of that court vi. All defendants must agree and must remove within 30 days of service of the document that first make the case removable and filing a removal case does not make mean a defendant waivers jurisdiction and diversity there is vii. Plaintiff has 30 days after receiving notice of removal to make a motion to remand the case to state court a.) If the court decided to remand the case to state court based on a defect in removal procedure or a lack of subject matter jurisdiction, the defendant may not appeal the order b.) However if the court denies the plaintiffs motion for remand, such a denial is reviewable, but only on appeal of the final argument viii. Although the filing of a notice of removal removes the case immediately, the plaintiff does have the opportunity to contest the removal by making a motion to remand the case to state court ix. If the court decides to remand the case to state court based on a defect in removal procedure or lack of subject matter jurisdiction, the defendant may not appeal that order x. However if the court denies the plaintiffs motion for remand, such denial is reviewable, but only on appeal of the final judgment in the case xi. If its a federal question, it must appear on the face of the complaint if federal court would have had original jurisdiction over the court D. Plaintiff may remand case back to state court i. 1447 if there was a defect in the removal procedural ii. Or if the federal court does not have subject matter jurisdiction ii. VII. Venue A. The proper or a possible place for lawsuit to proceed because the place has some connection either with the events that gave rise to the lawsuit or with the plaintiff or defendant i. 28 U.S.C. 1391(a) diversity cases i. 28 U.S.C. 1391(b) federal question cases/possibility of multiple proper venues a.) The venue statute is not designed to find one or best venue rather several venues may come from the 1391 analysis b.) When multiple venues are proper, the plaintiff is free to select among any of the options

B.

C.

E.

F.

c.) Plaintiff may engage in forum shopping, seeking the most strategically advantageous forum for litigating the action ii. (1) venue will lie in the district where ANY defendant resides, as long as all Ds reside in that same state 1.) P v. D (Jacksonville, FL) & D2 (Miami, FL) venue in FL 2.) P v. D (Jacksonville, FL) & D2 (New York) venue not proper in NY or FL iii. (2) provides venue in district where a substantial part of the events/omissions giving rise to the claim occurred (or if, involving property, where substantial part of property is located a.) Substantial significant event/omission material to the claim, need not be the most substantial part of the events, events must be significantly related to the claim or give rise to the claim, or bear a close nexus to the claim, inquiry will vary depending on the facts iv. Fallback Provision a.) Permits venue in any district having personal jurisdiction over any defendant only if there is no district in which the action may otherwise be brought b.) Where any D is subject to personal jurisdiction c.) Where any D is found v. Alien s can be sued in any district a.) This provision also applies to foreign corporations Corporations i. Corporations are residents of any district where they are subject to personal jurisdiction ii. At residence at time action is commenced, iii. Any district where it is subject to personal jurisdiction iv. If more than one district in a state, any district within the state [pretend the district is a separate state] where subject to personal jurisidiction v. If no such district, corporate D resides in district within which it has the most significant contacts Voluntary Associations i. For the purpose of venue, the resident of an unincorporated association is determined by looking at the residence of the association itself rather than that of its individual members Local Action Doctrine i. Courts generally adhere to a doctrine that holds that the proper venue for disputes involving real property is the state where the property is located Challenging Venue i. A motion to dismiss for improper venue but the motion must be made in a defendants initial response to the plaintiffs complaint or its waived FRCP 12(b)(3) ii. Motion to transfer a.) Motion for change of venue under 1404(a) if the venue is proper but inconvenient b.) Motion to transfer under 1406(a) if the venue was improper

G. Transfer of Venue i. Allows for transfer from one district court to another federal district court ii. 1404(a) for the convenience of parties and witnesses in the interest of justice a district court may transfer any civil action to any other district or divison where it might have been brought a.) Hoffman only those districts where the plaintiff could have initially filed the action properly, without the consent of the defendant are permissible transferee courts for the purpose of 1404 b.) The defendant bears the burden of demonstrating why a transfer of venue should be granted c.) The court weighs the following factors to decide whether a transfer is warranted [pppllac] 1.) The availability and convenience of witnesses and parties 2.) The location of counsel 3.) The location of books and records 4.) The cost of obtaining attendance of witnesses and other trial expenses 5.) The place of the alleged wrong 6.) The possibility of delay and prejudice if transfer is granted, 7.) Ps choice of forum iii. 1406(a) If the transferor court is an improper venue, may either: a.) Dismiss or b.) Transfer in the interest of justice transfer to a district or division in which the case could have been brought iv. Transferor court decides issues of transfer and party requesting transfer bears burden H. Special Statutes i. 1391 venue provision may be trumped by special venue provisions in other federal statutes ii. Courts may apply special statute or 1391 unless: a.) The special statute is exclusive or b.) There is a conflict iii. 1391(d) trumps special statutes I. Multidistrict litigation i. 28 USC 1407 civil actions sharing common questions of fact pending in different federal districts may be transferred to any district for consolidated pretrial proceeding ii. Plaintiff bears the burden of establishing that venue is proper VIII. Erie Doctrine A. Occurs when there is a diversity case in federal court B. Rules of Decision Act: U.S.C. 1652 i. The law of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply

Swift applied general commercial law or state law; RDA only requires the federal court sitting in diversity to apply state statutory law, not common law the court applied general commercial law a.) Policy argument for Swift that a uniform rules governing these matters in order to promote the growth of interstate commerce and the development of a truly national economy rather than balkanized collection of local economics iii. Aftermath of Swift a.) Federal court sitting in diversity developed and applied a federal general common law the federal courts idea of what the common law was b.) State courts developed their own interpretation of what the common law was madding conflicting ideas c.) Leading to forum shopping, non uniformity, unfairness iv. Erie in a diversity case, the law of the State includes all sources of substantive state law a.) Basic of USSC decision 1.) Warrens reinterpretation of Rules of Decision Act 2.) Results in Black & White Taxicab 3.) defect of Old Swifty v. Aftermath of Erie held that state substantive law supplies the rules of decision in diversity cases and state law includes common law a.) Reed The line between procedural law and substantive law is hazy, but no one doubts federal power over procedure. C. Distinguishing Substantive and Procedural i. York outcome-determinative test only applies to rules that have a strong likelihood or even a certainty of affecting the outcome a.) Courts must balance federal and state interests ii. The court should consider whether applying the federal approach rather than the state rule would lead to forum shopping and inequitable administration of the laws, that is significantly different litigation opportunities for diversity litigants than for those who proceed in state court iii. Hanna Does a federal rule apply? a.) If so, the rule or stature controls, provided 1.) It is consistent with the REA [procedural rule] and 2.) It is constitutional - Federal courts have the power to develop procedural rules that do not abridge, modify or enlarge any substantive rights b.) If no controlling federal rule of law, consider 1.) The procedural or substantive nature of the state law 2.) Whether application of the state law in federal court would implicate the twin aims of Erie i. Discouragement of forum shopping ii. Inequitable administer of the law 3.) Whether there are any countervailing federal interests that suggest applying federal law ii.

IX.

Pleading & Motions A. Common Law pleading i. Required plaintiff to fit their claim within a form of action ii. Later, code pleading required a high degree of factual specificity often defeating claims by Ps who needed the discovery process to get all the facts B. Notice Pleading i. Only requires the other side be put on notice of the allegations against him A. A civil action is commenced in the federal system by the filing of a complaint by the plaintiff i. FRCP 8(a) Elements of a Complaint 1.) Statement of the basis for the courts subject matter jurisdiction 2.) The plaintiffs claim must be set forth 3.) The relief the plaintiff seeks must be demanded B. 8(a)(2) a short and plain statement of the claim showing the pleader is entitled to relief i. Conley v. Gibson all the Rule requires is a short and plain statement of the claim that will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests and rejects the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits ii. Complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief iii. A judge must accept as true all of the factual allegations contained in the complaint iv. The plaintiffs pleading burden is limited to those matters for which the plaintiff will bear the burden of introducing evidence at trial v. When the complaint strays too far from being short and plain it may be subject to dismissal C. Twombley i. No set of facts the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief a.) Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in complaint b.) Detailed factual allegations not required (no heightened pleading) c.) fair notice and grounds on which claim rests require some factual allegations d.) Need more than labels and conclusions ii. Two working principles underlie Twombly

a.) Although a court must accept a complaints allegations as true, the court need not accept threadbare recitals of a cause of actions elements supported by mere conclusory statements b.) Determining whether a complaint states a plausible claim is context specific, requiring the reviewing court to draw on its experience and common sense iii. Must establish conspiracy/agreement to restrain competition and parallel conduct alone is insufficient iv. Conclusively allegations are insufficient under 8(a)(2) v. Facts alleged need not show probability of conspiracy, but rather show plausible grounds to infer an agreement a.) Test is whether facts alleged raise a reasonable expectation that discovery will reveal evidence of illegal agreement b.) Bare assertion of conspiracy is insufficient vi. Erikson - Dismissal for conclusory allegations was stark departure from pleading standards/Pro se compliant should be liberally construed vii. Ashcroft Twombly applies to all civil actions, not just anti-trust actions; must plead sufficient factual matter a.) Detailed factual allegations are not required but the rule does call for sufficient factual matter to state a claim to relief that is plausible on its fact viii. Iqbal a claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged D. Special Pleading Matters i. Rule 9(b) requires heightened pleading standards in certain situations a.) In alleging fraud or mistake, a party must state with particularity the circumstances b.) Fraud and mistake were singled out for special heightened pleading requirements based on the idea that these allegations were too easily fabricated and in the case of fraud, too potentially detrimental to the defendants reputation c.) Malice, intent, knowledge, and other conditions of a persons mind may be alleged generally d.) Statutes may also require heightened pleading standards ii. The pleading party has the burden and the burden is rigorous and identify the circumstances giving rise to the fraud to enable D to prepare a response iii. Rule 8(d)(2) Inconsistent Allegations a party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense a.) A party may also state as many separate claims or defense as the party has regardless of consistency iv. Congress has the authority to impose heightened pleadings requirements for claims as it sees fit; requiring a complaint state with particularity facts

E.

F.

G.

H.

giving rise to a strong inference that the defendant acted with the required fraudulent state of mind Prayer for Relief i. Every other final judgment should be grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleading ii. Final relief can differ, unless it was a default judgment iii. Rule 9(g) special damages must be specifically stated iv. Special damages are damages are damages that are not usually asked for with a specific cause of action a.) Special damages must be specifically stated Fed. R. Civ. P 4 Service i. A civil action is commenced by filing a complaint with the court ii. Service must comport with two requirements a.) Due process b.) Mechanics of rule 4 iii. Notice must be reasonably calculated under all circumstances to apprise interested persons of the pendency of the action and to allow them an opportunity to present their objections a.) Forms of summons b.) Issuance by clerk c.) Time limits for service of 120 days iv. Waiver of Service Rule 4(d) a.) P can request D to waive formal service and accept mail service b.) The incentive to agree is extra time to respond and threat of incurring costs of service c.) Usually 21 days to respond to complaint but with the waiver alters the time limit 1.) P must allow D at least 30 days to respond to request [or 60 days if outside US] 2.) If D waives, 60 days to answer [90 days if outside US] Method of Service i. Serving an individual within the U.S. several possible methods a.) Pursuant to state law state where the district court is located or the state in which service is made or b.) Personal service on D [by hand] 1.) At individuals dwelling house or usual place of abode- must leave the summon with some person of suitable age and discretion residing therein 2.) Service Ds authorized agent personally appointed or authorized by law Service on a Corporation Rule 4(h) i. Unless otherwise provided by federal law or if D files a waiver under Rule 4(d) service methods depend on whether the corporation is served within the U.S. or abroad ii. Service within U.S. a.) Same methods as an individual

b.) Or serve on an officer, managing or general agent, or any other authorized agent and if the agent is authorized by law, also mail a copy to D iii. Service Abroad a.) Refers to Rule 4(f) serve corporations in same manner as you would serve an individual under Rule 4(f) except personal service b.) Unless federal law otherwise provides: 1.) any internationally agreed means Hague Convention iv. If no such means a.) Service in manner allowed by the foreign country or b.) Letter rogatory or c.) Unless prohibited, individuals [not corporations] can be served by personal service or return receipt mail or other means directed by court as long as not prohibited by international agreement I. To determine if the order for another method should be serviced i. P need only to demonstrate that the facts and circumstances of the present case necessitated the district courts intervention ii. There should be some effort to first effect service without the courts intervention iii. No obligation to go through the measures outlined in 4(f)(1) first X. Responding to the Complaint A. The defendant has two mains to responding to a complaint i. An answer in which the defendant responds to the specific allegations contained in the complaint ii. File a motion raising various legal defenses that highlight the legal defects in the plaintiffs action B. FRCP 12(b) Defenses and Objections i. Every defense to a claim for relief must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motions a.) Lack of subject matter jurisdiction b.) Lack of personal jurisdiction c.) Improper venue d.) Insufficient process some technical defect in the content of the summon e.) Insufficient service of process process was not served in compliance with the requirements of Rule 4 ii. 12(c) once all pleadings have been submitted either party may move for a judgment on the pleadings iii. 12(e) defendant may move for a more definite statement if the complaint is so vague and ambiguous that it cannot be reasonably be required to frame a responsive pleading The motion must be made before the responsive pleading is filed and must point out the defects and details desired. If the court orders a more definite statement, party has 14 days to cure or the court may strike the pleading

12(f) when a party believes that a pleading contains an insufficient defense or any redundant, immaterial, impertinent or scandalous matter The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter The court may act: a.) On its own; or b.) On the motion made by a party either before responding to the pleading if a response is not allowed, within 21 days after being served with the pleading v. 12(g): joining motions a.) If filing a Rule 12 motion, the moving party may join with it vi. 12(h)(1) these defenses are waived if not raised a.) If a party does not raise these defense in a motion, pleading or amendment, they are waived 1.) Lack of personal jurisdiction 2.) Improper venue 3.) Insufficient process 4.) Insufficient service of process vii. 12(h) (2-3) not waived a.) Lack of subject matter jurisdiction is never waived it the court lacks SMJ, court must dismiss regardless b.) 12(b)(6) failure to state a claim c.) Objection of failure to state a defense C. 12(b)(6) challenges the sufficiency of the complaint in two ways a.) The motion can allege that the complaint is formally inadequate, meaning that it fails to give the minimum level of detail required under Rule 8(a)(2) b.) The motion can allege substantive or legal inadequacy, which means that the allegations in the complaint fail to say anything that would render the defendant liable for a violation of the law i. A court must accept as true everything that the plaintiff has alleged in its complain ii. Twombley standard held that a motion to dismiss is appropriate if the plaintiff failed to plead facts showing plausible entitlement to relief iii. Permission to amend in such circumstances is typically granted iv. XI. FRCP 8(b) Defense, Admissions and Denial A. The defendant will have to submit its pleading in response to the complaint B. Components of Answer i. Denials & Admissions a defendant must admit or deny all factual allegations of the complaint ii. Defenses any defenses it intends to raise iii. Claims the defendant has claims against the plaintiff that she wishes to assert she may do so in the answer C. Three types of Answers

A defendant may either admit, deny or assert that they lack knowledge or information sufficient to form a belief as to the truth of the allegation ii. The effect of filing a motion to dismiss have on the time within which the defendant must file an answer a.) Motion to dismiss the action until the court rules on the motion b.) After notice of the courts decision, D has 14 days to file his answer D. General Denial i. General denials should only be used when every single aspect of an allegation is intended to be denies. If any component turns out to be something that the defendant had no intention of denying, the court will be in a position to declare the entire denial ineffective. ii. 8(b) provides a party to deny an allegation because it is without knowledge and information sufficient to form a belief as to the truth of an averment The effect of such a response is the same as denial. iii. Improper forms of Denial a.) Negative pregnant denial involves an overly specific denial that repeats every detail of the assertion leaving the possible impression that some other form of the allegation could be true b.) Conjunctive denial a variant of the negative pregnant leaves open the possibility that the defendant did one or two of the three but not all of the things alleged. These types of denials are seen as evasive and should be avoided. E. Affirmative defense i. encompasses two types of defensive allegations: those that admit the allegations of the complaint but suggest some other reason why there is no right of recovery, and those that concern allegations outside of the plaintiffs prima facie case that the defendant therefore cannot raise by a simple denial in the answer ii. Failure to plead an affirmative defense ordinary results in the defense being waived iii. However some courts do not treat non pleaded affirmative defenses as forfeited in cases where there is no prejudice to the plaintiff F. Counterclaim i. The defendant may assert a claim against the plaintiff and the plaintiff is required to answer the counterclaim ii. Failure to reply to an counterclaim will result in those allegations being confessed i. XII. FRCP 15(a) Amending the Pleading A. Amending Before Trial i. A party may amend its pleading once as a matter of course (without permission of the court or the other party) old rule: party could amend any time prior to being served with a responsive pleading a.) 21 days after serving it or

b.) If the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier ii. Otherwise a party may amend the partys pleading only a. With the opposing partys written consent or b. By leave of the court and the court should feely give leave when justice so requires iii. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later. B. Rule 15(a) Standard to grant leave i. In absence of any apparent or declared reason such as undue delay, bad faith or dilatory motive on the party of the movant, repeated failure to cure deficiencies by amendments previously allowed undue prejudice to the opposing party by virtue of the amendment, etc., the leave sought should as the rule requires, be freely given C. Rule 15(c) Amended and Supplemental Pleading; Relation Back of Amendment i. In order to relate back, the change being made to the pleading must be part of the same conduct, transaction or occurrence set forth in the original pleading XIII. FRCP 11 A. A provision that requires attorneys to certify or verify the truthfulness of the pleading they file i. Rule 11(a) Signature a.) Every pleading, motion and other paper must be signed by 1.) Attorney (if represented), or 2.) Party (unrepresented (pro se)) 3.) Also must include signers address, email address and telephone number b.) Subdivision (a) 1.) Pleading generally do not need to be verified/accompanied by affidavit 2.) If not signed, the court will strike (disregard) unless corrected promptly 3.) Local rules/local custom might require the inclusion of additional information ii. Rule 11(b) reasonable inquiry undertaken: merely needs to be reasonable under the circumstances a.) Relevant factors courts consider 1.) whether the signor of the document had sufficient time for investigation, 2.) the extent to which the attorney had to rely on his or her client for the factual foundation underlying the pleading, motion, or other paper,

3.) whether the case was accepted from another attorney, the complexity of the facts and the attorneys ability to do a sufficient pre-filing investigation, and 4.) whether discovery would have been beneficial to the development of the underlying facts iii. Rule 11(b)(1) proper motivation for filing a.) Under the rule, motivation behind the filing may not be sinister in that it is meant to drive up litigation costs or needlessly delay the litigation b.) Such as harass, delay, increase cost iv. Rule 11(b) (2) soundness of legal argument a.) This rule permits arguments that are soundly based in existing law and argument for changes in law if the arguments are non frivolous b.) A non frivolous filing is both baseless and made without reasonable and competent inquiry v. Rule 11(b)(3) basis for factual allegations vi. Rule 11(b)(4) basis for denial vii. Rule 11 only applies to all papers filed with the courts so letters between the counsel and oral statements made to opposing counsel do not apply B. Rule 11(c) Sanction i. If after notice and a reasonable opportunity to respond court finds a Rule 11 violation, the court may sanction a.) Individual attorneys, law firms, and party ii. (2) by motion (adverse party) a.) Separate from other motions b.) Responder has 21 days after service to withdraw/correct (this is the safe harbor provision) c.) (3) or by court (sua sponte) court must find issue order to show cause iii. Rule 11(c)(4) must be limited to what suffices to deter repetition a.) May include nonmonetary sanctions, fines, and/or payment of costs of moving party iv. Rule 11(c)(5) note some exceptions to awarding monetary sanctions a.) A represented party cannot be sanctioned for a violation of 11(b)(2) [unwarranted legal arguments] IVX. Joinder of Claims and Parties A. FRCP 18(a) A party asserting a claim, counterclaim, crossclaim, or third party claim may join as independent or alternative claims as many claims as it has against an opposing party i. This rule is permissive and does not require joinder ii. This does not concern whether the court has subject matter jurisdiction over the claim iii. Permits a party to assert any claim to join any other claim that they may have to their claim regardless of its relationship with the initial claim B. FRCP 13(a) i. Compulsory Counterclaims

a.) Whether a defendants counterclaim is compulsory requires a determination of whether the claim arises out of the transaction or occurrence that is the subject matter of the opposing partys claim b.) Assert a claim without regard to whether it bears any relationship to the claim asserted against it c.) Transaction is a word with flexible meaning; it may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship d.) A defendants failure to assert a counterclaim will preclude him from asserting that claim in a later action ii. FRCP 13(g) Crossclaims i. Defendant may assert a claim against another defendant ii. Subject matter jurisdiction must exist over crossclaims even if they may be pleaded under 13(g) C. FRCP 20(a) Permissive Joinder of Parties i. Plaintiffs persons may join in one action as plaintiff 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 of fact common to all plaintiffs will arise in the action ii. Defendant persons may be joined in one action as defendants if: a.) Any right to relief is asserted against them jointly, severally, or in the alternative, with respect to or arising out of same transaction or occurrence or series of transactions or occurrences; and b.) By question of law or fact common to all defendants will arise in the action iii. In addition to providing that the claims asserted by or against the joined parties that arises out of the same transaction or occurrences can satisfy the first part of the rule, Rule 20(a) also permits party joinder when the asserted claims arise out the same series of transactions or occurrences iv. Party joinder will be permitted only if any question of law or fact common to all defendants will arise in the action v. 1367(b): applies only to diversity cases a.) Prohibits supplemental jurisdiction over two categories of claims 1.) Claims by plaintiffs against person joined under certain rules and 2.) Claims by persons proposed to be joined as plaintiffs under Rule 19 or 24 b.) No supplemental jurisdiction over claims by plaintiffs against persons who are joined under these rules: 1.) 14(third party defendants) 2.) 19(necessary parties) 3.) 24 intervening parties

D. FRCP 14(a)(1) Third Party Practice (a) only applies to derivative liability claims

Joinder by defendants under this rule is referred to as impleader a.) Timing of the summons and complaint 1.) A defending party, may as third party plaintiff serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it 2.) But the third party plaintiff must, by motion, obtain the courts leave if it files the third party complaint more than 14 days after serving its original answer 3.) The original defendant may implead a non party into a lawsuit ii. 14(a)(2) a.) The plaintiff may assert any claim against the third party defendant arising out of transaction or occurrence that is the subject matter of the plaintiffs claim against the third party plaintiff b.) Even thought joinder may be permissible under the joinder rules, it is still necessary to consider separately whether there is proper subject matter jurisdiction and personal jurisdiction over the claims and parties sought to be joinded E. FRCP 18(a) i. Requires that an action must be prosecuted in the name of the real party in interest and only applies to the plaintiff F. Tips and Pointers about Joinder i. Usually, it is a compulsory counterclaim (Rule 13(a) arises from same transaction/occurrence ii. The court will also have supplemental jurisdiction over the counterclaim a.) 1367(a) so related to claims in the action that they form part of the same case or controversy; same nucleus of operative facts G. FRCP 19, 20, 24 i. FRCP 24 Intervention Parties a.) Parties may either intervene as a permissive intervention or as intervention of right b.) Timely consideration VX. Discovery A. Refers to the process of compelled information exchange that occurs among the parties before the trial B. FRCP 26(b)(1) Discovery Scope and Limitations i. Basic scope of discovery is all information relevant to a claim or defense of any party ii. Relevant material that is privileged is not discoverable iii. Scope of discovery may be expanded by the court to cover any matter relevant to the subject matter involved in the action rather than simply a claim or defense of any party iv. Relevant material under the rule does not have to be admissible but rather simply must be reasonably calculated to lead to the discovery of admissible evidence v. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C)

i.

C. Purpose of Discovery i. Find out facts, freeze testimony for late use for impeachment, preserve testimony, abusive uses a.) Expose sensitive or embarrassing information b.) Impose unnecessary cost D. Scope after Amendments i. The new rule was intended to narrow the scope of discovery E. Protective Order i. Under Rule 26(c), persons who seek protective orders must first meet and confer with the requesting party and make a good faith effort to resolve the discovery dispute without the courts action and as justice requires ii. Then, good cause must be shown and the rule indicates that such orders are appropriate to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense iii. Losing party may be ordered to pay expenses of motion 37(b)(5) F. Discovery i. When non parties are the object, the mechanism for obtaining information from them are more limited under the Rules because not all of the discovery mechanisms are applicable to non parties G. FRCP 26(b)(2) i. Rule permits courts to limit the number and length of depositions or the number of interrogatories in its discretion ii. Protects parties against the burden of having to produce electronically stored information that is not reasonably accessible iii. Permits the court to limit discovery based on factors intended to ensure that discovery request are proportional to the needs, costs, and burdens of all parties involved a.) Proportionality means that although discovery is broad and the parties are entitled to certain information, discovery of information whose cost and burden far outweigh the contribution the information can make to the case need not be permitted H. Undue Burden & Proportionally i. Proportionality and undue burden may fairly be characterized as being at the hear of may if not most disputes concerning the propriety of discovery ii. Responding to discovery request involve financial expense, opportunity costs and the commitment of human and other resources to the response effort iii. The general rule in discovery is that the responding party must pay the expenses associated with responding to a discovery request I. FRCP 26(a) Initial Disclosures i. A party must, without awaiting a discovery request, provide the other party a.) The name, address and telephone number of each individuals likely to have discoverable information

b.) A copy of all document, electronically stored information and tangible things that the disclosing party has in its possession c.) A computation of each category of damages claimed by he disclosing party d.) Any insurance agreement which an insurance business may be liable to satisfy all or part of a possible judgment in the action ii. Discovery Conference a.) At the conference, parties make arrangements to exchange initial disclosure and after they have 14 days to make initial disclosure after the meeting J. FRCP 34(a) Producing Document, ESI, and Tangible Things i. A party may serve on any other party a respect within the scope of Rule 26(b) non parties require subpoena [Rule 34 & Rule 45] ii. Document request can either by specifically focused on particular known documents or may more broadly seek information in categorical term iii. If documents are produced they are to be produces as they are kept in the usual course of business rather than being organized by reference to categories in the request a iv. ESI has brought two highly contentious issues to fore a.) The exact form in which the responding party must produce ESI, such as print out or native format b.) Whether metadata, data about data, should accompanies ESI must be produced 1.) Metadata is information describing the history, tracking or management of an electronic file and indicates that it is usually not apparent to the reader viewing a hard copy or a screen image 2.) Metadata can prove quite useful in tracking the manipulation of documents, which may be concern in instances where there is some question as to the authenticity or integrity of documents that have been produced. If privileged, information is metadata is not discoverable. v. Parties are explicitly instructed to discuss any issue about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced I. Interrogations A. A party may send written questions or interrogatories that the receiving party must answer under other. i. The party is limited to 25 of these questions unless the court grants permission to issue additional interrogatories. ii. If responding to the interrogatory appears likely to be too burdensome, responding parties may object on any ground applicable to other discovery requests such as privilege, relevance or undue burden

II.

B. FRCP 33(d) i. The responding parties the option to permit the questioning party to view the responding partys business record to figure out the answer for themselves a.) Subsection (1) was added o prevent parties from giving their adversaries access to a mass of undifferentiated business records without any guidance as to how the sought information might be found Oral Deposition A. FRCP 30(a)(1) i. Parties may question under oath any person thought to have testimony relevant to their dispute without the courts permission ii. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(3) which is a motion to terminate the deposition because it is proceeding in bad faith iii. (d)(1) Depositions are limited to one day of seven hours unless the court allows additional time iv. (e) A stenographic record is kept of the deposition and upon its completion a transcript is produced, which the deponent or a party may request a copy of to review and correct if necessary v. Oral questions to a party or non party vi. Objection of the question a.) Object to privilege, object to form 30(c)(2) or (c)(3) B. FRCP 35 Physical or Medical Examination i. The critical requirement are that the person to be examined a.) Must be a party b.) That the partys mental or physical condition must be in controversy c.) The party seeking the examination must demonstrate good cause to justify the examination ii. Mental and physical examinations are only to be ordered upon a discriminating application by the district judge of the limitation prescribed by the Rule iii. Requires court order upon motion and with good cause a.) Notice to person examined and all parties b.) Copy of report to examined person upon request but: 1.) Examining party may request any similar report 2.) And examined party waives doctor patient privilege iv. Schalagenhauf v. Holder Party must affirmatively put their mental or physical condition into issue a.) Mental physical injury claimed as part of the case of defense b.) Court must make a discrimination application of the Rule

III.

Discovery Sanctions A. FRCP 37 Failure to Make Disclosures or to Cooperate in Discovery

i.

ii.

iii.

When the parties are at loggerheads over discovery issue, the rule provides that they must meet and confer to try to negotiate a resolution of the dispute before they can seek intervention from the court After the parties meet and confer intervention from the court can then be solicited in two ways a.) The requesting party may file a motion to compel the production of information b.) The responding party who feels that it should not be required to comply with a particular discovery request and disclose certain information may file a motion seeking a protective order FRCP 37(a)(1) a.) On notice to other parties and all affected personas, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort

B. FRCP 26 Protective Order i. A party or person from whom discovery is sought may move for a protective order in the court when the action is pending C. FRCP 26(g)(1) Signing Disclosures and Discovery Request, Responses and Objections i. An order that designated facts shall be taken to be established for purposes of the action ii. An order preventing the disobedient party from introducing certain documents, or supporting or opposing designated claims or defenses iii. The entry of dismissal or default iv. The striking of the pleadings of the offending party v. The award of reasonable expenses, including attorneys fees

A. Over Discovery i. Making discovery request that fall within the scope of discovery but solicit material that is not really of any great interest to the requesting party ii. Dump truck tactic is to produce massive amounts of information in response to a discovery request with critical or even harmful information buried deep within it B. Preservation Obligations & Spoliation i. Discoverable information in the possession of the parties must be available and preserved or litigation ii. The duty to preserve information because it is potentially relevant to pending or future litigation is a common law duty that courts have devised in aid of the need to encourage litigants to retain material that their adversaries will have a right to discover as the case unfolds. A breach of this duty is referred to as spoliation.

The common law duty to preserve, many statutes and regulations impose legal obligations to preserve certain documents or material a.) The violation of statutory duties give rise to an inference of spoliation b.) The better view seems to be that a breach of a statue or rule based duty to preserve may only be the basis for a spoliation finding when the party seeking the inference is a member of the general class of persons that the regulatory agency sought to protect in promulgating the rule iv. Standard for imposing an adverse inference sanction a.) That the party having control over the evidence had an obligation to preserve it at the time it was destroyed b.) That the records were destroyed with a culpable state of mind c.) That the destroyed evidence was relevant to the partys claim or defense such that a reasonable trier of facts could find that it would support that claim or defense v. Evidence of bad faith in the destruction of evidence will suffice to demonstrate that the information was relevant a.) When simple negligence is shown however the aggrieved party must establish that the destroyed information was relevant to this case C. Safe Harbor Provision in Rule 37(f) i. Under the new provision, when ESI destroyed due to the routine, good faith operation of an electronic information system, courts may impose rule based sanctions absent exceptional circumstance a.) The routine operation of computer system includes the alteration and overwriting of information, often without the operators specific direction or awareness, a feature with no direct counterpart in hard copy document b.) Good faith requirement of Rule 37(f) means that a party is not permitted to exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue in order to destroy specific stored information that it is required to preserve I. Privilege and Work Product Protection A. Attorney-Client Privilege i. A matter is privileged if it is covered by a privilege rule that gives certain persons the right to withhold information from disclosure from various reasons. ii. Elements of Attorney-Client Privilege a.) The asserted holder of the privilege is or sought to become a client b.) The person to whom the communication was made 1.) Is a member of the bar of a court, or his or her subordinate and 2.) In connection with this communication is acting as a lawyer c.) The communication relates to a fact of which the attorney was informed

iii.

B.

C.

D.

E.

1.) By his client 2.) Without the presence of strangers 3.) For the purpose of securing primarily either i. An opinion of the law ii. Legal services or iii. Assistance in some legal proceeding and 4.) The privilege has been claimed and not waived by the client Work-Product Doctrine i. FRCP 26(b)(3) Trial Preparation Material ii. Two different conclusions regarding how the phrase in anticipation of litigation should be interpreted a.) Some courts adhere to the notion that documents are protected by work product privilege if they are prepared primarily or exclusively to assist in litigation b.) The majority of court follow the prepared because of litigation approach when a document should be deemed prepared in anticipation of litigation, if in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have prepared or obtained because of the prospect of litigation iii. The work product doctrine applies once a party has been given notice of litigation iv. To overcome work product protection, a requesting party must show a substantial need for information a.) To demonstrate substantial need, a party must demonstrate an inability to obtain equivalent evidence without undue hardship b.) High standard requesting party needs to do their own work and spend their Opinion Work Product i. Protection against Disclosure. If the court order discovery of those materials, it must protect against disclosure of the mental impressions, conclusion, opinions ii. Parties asserting privilege or work product must expressly state the claim and describe the withheld material Privilege Waivers i. Attorney-client privilege only holds up if it is not waivered, which can occur whenever the protected communication is disclosed to a third party ii. Once a waiver occurs with respect to one party, the communication can no longer be claimed as privileged with respect to others for subject matter waiver iii. Waiver of a privileged communication may constitute Experts and Trial Preparation i. Parties must disclosure identity of experts it may use at trial ii. Disclosure includes experts written report if the expert is a.) Retained or specially employed

A. Default Judgments i. FRCP 55(a) a.) When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter a partys default b.) Default applies if defending party 1.) Fails to plead (answer) or otherwise defend ii. This rule set up a two-stage process a.) Once the defendant fails to plead as required by the rules or fails to otherwise defend itself via motion, the opposing party may bring that fact to the attention of the court clerk and seek the clerks entry of the defendants default b.) After the clerk has entered a default, the opposing party may then seek a default judgment from the court iii. The court has adopted a policy disfavoring default judgments and encouraging decisions on the merit iv. Once a default has been entered a party may petition the court to set aside the default a.) The court will do so if the petitioner shows good cause a determination courts have typically made based on 1.) Whether the default was willful or the result of the defendants culpable conduct 2.) Whether the set-aside will prejudice the plaintiff 3.) Whether the defendant had a meritorious defense b.) It may also be set-aside by Rule 60(b) in conjunction with the good cause factors v. Damages for Default Judgments a.) A plaintiff may successfully obtain a default judgment limits her recovery to the amount prayed for in the complaint B. Setting Aside a Default Judgment i. The court may set aside an entry of default for good cause and ii. It may set aside a default judgment under Rule 60(b) iii. Rule 54(c) a default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings, IV. FRCP 41 Dismissal of Actions A. Two types of dismissals i. Voluntary ii. Involuntary C. Involuntary Dismissal i. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it ii. The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion

Unless the court states otherwise in its order, the effect of an involuntary dismissal is dismissal with prejudice, meaning that the matter is deemed to have been adjudicated on the merits D. Voluntary Dismissal i. The plaintiff may termination an action rather than proceed voluntary without the courts permission or consent of the other parties in the suit if the plaintiff files a notice of dismissal prior to the filing of an answer or summary judgment motions ii. To allow voluntary dismissal is based on the discretion of the court, a.) Whether the party has presented a proper explanation for its desire to dismiss b.) Whether a dismissal would result in a waste of judicial time and effort c.) Whether a dismissal will prejudice the defendant iii. The plaintiff may only voluntary dismiss its case without the prejudice once iv. If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court a.) May order the plaintiff to pay all or part of the cost of that previous action b.) May stay the proceedings until the plaintiff has complied I. Summary Judgment A. FRCP 56 Summary Judgment i. Summary judgment is appropriate when there an no genuine issue as to any material fact as a manner of law ii. A pretrial disposition, by motion, on the merits, in favor of any party, following a consideration of the pleadings and other evidentiary material a.) The function of the trial and the jury in our system is to resolve factual disputes and if there are no facts in dispute, no need for a trial judge can apply law iii. D may meet summary judgment standard either by a.) Negating Ps claim (Adickes) or b.) By showing P has inadequate evidence to support claim (P cannot prove its claim or P has failed to produce any evidence) iv. Non movant/opposing partys obligations a.) May not rest on her own allegations or denials in her pleading b.) Must set out specific facts showing a genuine issue for trial c.) Using affidavits or other materials and non movant is not limited to using only admissible material B. Scope of Motion i. Either party may move as to a.) Entire action b.) Any claim (partial summary judgment) c.) Any part of any claim (partial summary judgment C. Unless local rule or courts set a different time:

iii.

A party may move for summary judgment at any time until 30 days after the close of all discovery ii. A party opposing the motion must file a response within 21 days after the motion is served or a responsive pleading is due, whichever is later; and iii. The movant may file a reply within 14 days after the response is served iv. Motion usually cannot be made until discovery is substantially completed D. Burden for Summary Judgment i. The moving party may meet the summary judgment standard either a.) By negating Ps claim or by showing Ps claim or b.) By showing P has inadequate evidence to support claim ii. No requirement that the movant must produce material negating the Ps claim E. Summary i. Law is not in moving partys favor or ii. Moving party failed to meet initial burden as to factor or iii. The existence of specific facts showing that there is a genuine issue for trial F. Motivation behind Summary Judgment i. To get the court to lean in your direction ii. Because moving party may get lucky iii. To keep opposing counsel busy iv. To compel court to rule as to applicable law v. To win or maybe get partial summary judgment I. Trials A. 7th Amendment: Trial by Jury in Civil Cases i. The amendment begins by indicating that it applies to suits at common law ii. It declares that the right of trial by jury is to be preserved iii. Under the amendment no facts tried by a jury may be reexamined other than in accordance with the rules of the common law iv. Fed. R. Civ. P. 38(a) a.) The right of trial by jury as declared by the 7the Amendment to the Constitution or as provided by a federal statue is preserved to the parties inviolate. v. Differences between Equitable and Common Law a.) A legal suit is generally for monetary damages and equitable law is trust, property, and restitution relief. A equitable law does not provide for a jury right but Congress can provide for one per statute vi. Trial for Jury trial a.) Must be requested in the pleading and it is waivable if it is not requested b.) 38 On any issue triable of right by jury, a party may demand a jury trial by:

i.

1.) Serving the other parties with a written demand which may be included in a pleading no later than 14 days after the last pleading directed to the issue is served; and 2.) Filing the demand in accordance with Rule 5(d) B. Statutory Rights to Relief i. The 7th Amendment does apply to actions enforcing statutory rights, and requires a jury trial upon demand, if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law ii. A jury trial must be available if the action involves rights and remedies of the sort typically enforced in an action of law iii. It has long been settled that the 7th Amendment right to trial by jury does not apply in actions against the Federal Government C. Two Part Test i. First, compare the statutory action to 18th century actions brought in the courts of England prior to the merger of the courts of law and equity ii. Second, examine the remedy sought and determine whether it is legal or equitable in nature. iii. Third, analyze the practical abilities and limitations of the jury D. State Action i. The majority finds the exercise of peremptory challenges by litigants to be state action while the dissent feels that Government bears no responsibility for how a litigants uses a peremptory challenges ii. Although peremptory challenges need not be explained, if the adversary party suspects that a challenges has been exercised for discriminatory reasons, that party can require the party making the peremptory challenge to discriminatory basis for exercising the challenge II. Selecting a Jury A. Rule 48 i. A jury must begin with at least 6 and no more than 12 members, ad each juror must participate in the verdict unless excused under Rule 47 ii. Unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least 6 members B. Venire i. Cours randomly select the panel for jury service ii. The court and parties select the jury via voir dire a.) Vior dire to see to speak; the questioning of prospective jurors by a judge and/or attorneys in court b.) The purpose of vior dire is to determine if any juror is biased and/or cannot deal with the issues fairly, or if there is cause not to allow a juror to serve iii. 28 USC 1865 statutory grounds for juror disqualifications a.) Non citizen/ cannot read or write/non English/felon/mentally or physically infirm

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b.) Preemptory challenges no cause needed but limited to amount (3) and constitutional concerns c.) Judge or attorney ask vior dire questions and attorneys challenge for cause (unlimited), opposing party tries to rehabilitate and judges usually rule on the spot iv. Peremptory Challenges the right of the plaintiff and the defendant in a jury trial to have a juror dismissed before trial without stating a reason C. To determine if it is a state action: i. Lugar Two Part Test a.) Source of the alleged deprivation of rights b.) Whether the private party charged with the deprivation can in all fairness be described as a state actor ii. Then, apply the three factors Judgment as a Matter of Law A. Rule 50 i. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: a.) Resolve the issue against the party; and b.) Grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue ii. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment Jury instructions A. FRCP 51 i. Courts set time to make judgment instruction request ii. Courts must give parties an opportunity to object on the record and out of jurys hearing to proposed judgment before instructing jury and before final jury arguments (rule 52(b)) B. FRCP 48 Verdict i. After the close of all evidence, judge instructs jury ii. Jury retires and deliberates confidential iii. Rule 48 verdict must be unanimous unless parties agree otherwise iv. Deadlocked jury mistrial dismissal = new trial C. General and Special Verdict i. FRCP 49 ii. General Verdict occurs when a jury is able to reach a verdict, the typical form of the verdict is ordinarily a simple finding of either in favor of the plaintiff or defendant a.) Potential problems with general verdicts is 1.) Juries are carefully instructed on the law and told of each of the issues they must resolve to reach a particular result

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2.) General verdicts make it more difficult to discern whether an erroneous instruction tainted the verdict when multiple grounds for a given result exist Relief from Judgment i. FRCP 60(b)(c) ii. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order or proceeding for the following reasons: iii. A motion under Rule 60(b) must be made within a reasonable time and for reasons (1),(2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding iv. Rule 60(b) motions are rarely granted a.) Rule 55/Rule 60(b) motion to set aside a default judgment is more liberally granted