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Article III 2: Federal Courts are authorized to hear cases b/t states, b/t citizens of different
states, b/t citizens and aliens, cases arising under the federal Constitution and federal law, and a
few other narrow categories of suits
Why would you want to get into Federal Court?
Dockets are slower in State courts
If you knew what judge will be assigned to the case, one might be more favorable
Might get a better jury
Federal is a little more important
Fast pacemight have an advantage if you are familiar with the Fed Ct and the opposing
counsel isnt
Rules of Evidence are different in Federal Ct vs state court
When can you get into Federal Court?
When your claim arises under federal law (federal question jurisdiction)
OR when there is a diversity of citizenship b/t parties when there is more than 75,000 in
OR supplemental jurisdiction applies
Federal courts are courts of limited jurisdiction---they can hear only such cases as are
specifically authorized by the Constitution and statute; the rest are for State tribunals
A. Federal Question Jurisdiction
28 U.S.C. 1331: Federal Questionthe district courts shall have original jurisdiction of
all civil actions arising under the Constitution, laws, or treaties of the United States
o Article III only gives the Supreme Court original jurisdiction over civil action
arising under the Constitution NOT the lower courts (1331 does this)
o Spillengers Definition of Arising Underwhen a Federal statute/law or the
Constitution creates the cause of action
Louisville & Nashville Railroad v. Mottley (1908)Mottleys given free passes on a
railroad for life but Federal govt passes a statute prohibiting RRs from issuing free
passes; when RR refused to renew passes, Mottleys filed cause of action for breach of K
(state claim) in Federal Court
o Although the parties themselves did not raise the issue, the Court raised the issue
of subject matter jurisdictionSua Sponte consideration
o Diversity not available but Mottleys claimed that they should be allowed in Fed
Court b/c the RR was going to raise a defense under Federal Law
o HOLDING: The mere allegation of an anticipated defense that arises by some
provision of the Constitution does not create a federal question giving a federal
court jurisdiction---the plaintiffs claim must itself be founded on federal law in
order to be considered arising under

Well-pleaded complaint Rule: Whether the cases arises under federal law is to be
determined by reference to the plaintiffs complaint and whether she has raised a cause of
action created by federal law
NOTE: This same rule does not necessarily apply to Article III---Congress therefore
could change the interpretation of arising under if it wanted to

B. Diversity Jurisdiction
Article III 2Grants Supreme Court jurisdiction over all diversity cases regardless of
the amount in controversy (difference with the power granted by Congress to lower
o Complete Diversity not required under Constitution
28 U.S.C 1332: Diversity Jurisdiction
o Amount in controversy must be at least 75K
o And b/t
Citizens of different states
Citizens of a state and citizens or subjects of a foreign state
Strawbrideg v. Curtiss (1806)Must be complete diversity b/t the parties in order for
there to be a statutory grant of jurisdiction to lower courts
Complete DiversityNo party on one side may be a citizen of the same state as any party
on the other side
o State citizenship for diversity = domicile
o Domicile = the state where a person has taken up residence with the intent to
reside indefinitely
Residency is necessary but not sufficient
o Indefinitely = person has no definite intent to leave the state
Citizenship of a corporationany corporation is a citizen in its state of incorporation and
its principal place of business
o Partnerships are considered a collection of individuals not a single entity
therefore each partners must be diverse from all the opposing parties
o Principal place of business is a question of fact
Corporate nerve center is one possible test
Citizenship for diversity purposes is determined at the commencement of the action
which is when the complaint if filed
Newman-Green Inc. v. Alfonzo-Larrainpermitted a court to retain jurisdiction by
dismissing a nondiverse party not held to be indispensable (Rule 19)
Redner v. Sanders (2000)P was a US citizen residing in France that sued two NY Ds in
Federal courts claiming he diversity since he was a resident of France
o Court dismissed based on lack of subject matter jurisdiction b/c 1332 says must
be citizen of a foreign country rather than just residing there
o Court also rejected Ps argument that he was domiciled in California since P had a
Cali drivers license and a license to practice law in California
Saadeh v. Farouki (1997)D (Farouki) was a citizen of Jordan but had permanent
residency and citizenship for purpose of domicile in Maryland (not a US citizen when
case filed); P (Saadeh) was a citizen of Greece; P sued D in Federal court for a breach of
K (state claim)

o Issue: Does diversity of citizenship exist between an alien and an alien who has
permanent resident status in the US?
o Holding and Rule: No. Diversity of citizenship does not exist between an alien
and an alien who has permanent resident status in the US
o IMPORTANTCourt ignored the plain language of the 1988 amendment to 1332
b/c Congress intended to eliminate diversity in suits b/t citizen and an alien with
permanent resident status living in the same state----amendment not intended to
create diversity jurisdiction for suits b/t an alien and another alien w/ permanent
resident status
Arguments against Diversity Jurisdiction
o Creates a lot of cases for the Federal courts
o Serves no vital function---State prejudice is no longer a serious issue
Guidelines for aggregating claims for amount in controversy
o Single P w/ two or more unrelated claims against single D may aggregate to
satisfy the amount
o Two Ps with claims against a single D may not aggregate if their claims are
regarded as separate and distinct

C. Supplemental Jurisdiction
UMW v. Gibbs (1966)P filed suit against D under a Federal Statute (boycott) and state
law (contract interference)
o Issue: whether the district court acted properly in exercising jurisdiction over both
the state law and federal law claim
o Holding: State claim can be joined with the Federal claim if they come from the
same nucleus of operative fact
o Decided prior to 1367
o (a)Defendant, as third-party plaintiff may implead an additional defendant
who known as the third-party defendant if the third-party defendant may be
obligated to reimburse the third party plaintiff
Third-party defendant can then sue the original plaintiff for any claim
arising out of the same transaction or occurrence that is the subject matter
of the plaintiffs claim against the third party plaintiff
Kroger v. Omaha Public Power District (1975)Kroger (Iowa) filed suit against OPPD
(Nebraska) for wrongful death of her husband during electrocution; OPPD impleaded
owner of the crane, OE; Kroger amends complaint to include OE who later turns out to
be an Iowa citizen
o Issue: Whether a court can hear a plaintiff's claim against a third-party defendant
when there is no independent basis for federal jurisdiction over that claim in an
action in which federal jurisdiction is based on diversity of citizenship, a
circumstance called ancillary jurisdiction
o Holding: NO, as the P Kroger chose Federal Court and whether or not OE is liable
does not necessarily depend on whether OPPD is liablethus upheld the
complete diversity requirement of 1332
o Two limitations on the Gibbs holding (which applied to pendent jurisdiction or
bringing in additional claim whereas here they are bringing in additional parties)

Non-Federal claim must be ancillary and dependent on the original claim

More leniency to defendants than to plaintiffs since plaintiffs can choose
where they bring the cause of action while Ds cannot
Finley v. United States (1989)P (California) sued city of San Diego in state court (only
place they could) for wrongful death based on crash of plane that hit electrical lines; later,
also sued Federal government who actually controlled the lines under Fed Tort Act that
required such a suit in Federal court; P tried to condense the claims in Federal Court
o Issue: whether Petitioner can establish pendent jurisdiction in federal courts over
defendants with state claims when there is no independent basis for bringing the
action there
o Holding: just because the Act required Respondent to be challenged in federal
court does not mean that other defendants can be brought into federal court if
there is no independent basis for doing so. There needs to be more than a common
nucleus of facts, but rather express authority given by Congress or through the
o IMPORTANT: case overruled by 1367
28 U.S.C 1367
o (a) Except as provided in subsection (b) and (c) or as expressly provided
otherwise by Federal statute, in any civil action of which the district courts have
original jurisdiction, the district courts shall have supplemental jurisdiction over
all other claims that are so related to claims the action within such original
jurisdiction that they form part of the same case or controversy under Article III
of the United States Constitution. Such supplemental jurisdiction shall include
claims that involve the joinder or intervention of additional parties
o (b) In any civil action of which the district courts have original jurisdiction
founded solely on 1332 of this title, the district courts shall not have
supplemental jurisdiction under subsection (a) over claims BY PLAINTIFFS
against persons made parties under Rule 14, 19, 20, or 24 of the FRCP, or over
claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules,
or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising
supplemental jurisdiction over such claims would be inconsistent with the
jurisdictional requirements of 1332.
Kroger codified in 28 U.S.C. 1367District courts shall have supplemental jurisdiction
over all other claims that are so related to claims in the action w/in such original
jurisdiction that they for part of the same case or controversy
o District Courts may decline to exercise supplemental jurisdiction if
Claim involves a complex issue of state law
Claim predominates over the claim which the district court had original
District Court dismissed all claims over which it had original jurisdiction
Exxon Mobile Corp. v. Allapattah Services, Inc. (2005)Exxon dealers file class action
against Exxon corporation in Federal court; however, not all of the dealers claims against
Exxon met the amount in controversy
o Issue: "whether a federal court in a diversity action may exercise supplemental
jurisdiction over additional plaintiffs whose claims do not satisfy the minimum
amount-in-controversy requirement"

o Holding: Yes, as long as one of the plaintiffs claims meets the amount in
controversy requirement, then the District Court may exercise supplemental
jurisdiction over all of them
o Dissenttreating amount in controversy differently than diversity of citizenship
since if one of the plaintiffs is from the same state as the Exxon corp, the entire
case would be thrown out
D. Removal
28 U.S.C. 1441, 1446, 1447
28 U.S.C. 1441
o (a)D or Ds may remove civil action brought in State court if the federal district
court have original jurisdiction
o (b)Can remove if there is Federal question or parties are diverse
o (f)---Federal court can still hear a case removed to Federal court even if the State
court from which the case was removed did not have jurisdiction
1446Procedure for removal
1447---Procedure after removal generally
D files a notice of removal in the Federal court---ministerial action by the Defendant
requiring no action by the Court
If the plaintiff believes that the case lacks federal jurisdiction, then the Court can remand
the case to State court
o Plaintiff will have to move in Federal court to have the case remanded to State court--only situation will there will be motions/pleadings in Federal court

What is pleading?
o Pleadings are the legal submissions setting forth the parties claims to relief and
Why do we need pleadings?
o Jurisdiction
o To let defendant know what the dispute is
o Relevant questions of law sorted out
o Can get rid of issues that are agreed upon
o The story of what the dispute is has to be told
IMPORTANT: Pleadings consist of allegations. They do not consist as evidence or proof.
They function as a structure for what lines of proof that the plaintiff will present
The Complaint
A. Common-Law and Code Pleading
Common Law Pleading
o to wit, lots of mumbo jumbo, very old fashioned and verbose
o We study common law pleadings b/c

Even though it is abolished, it still influences the way judges and lawyers
think about pleadings and the law system;
Idea behind common law pleading is usefulif people agree about the
nature of their dispute, they may find resolution faster and cheaper
o Other things to remember about CL pleading:
Theoretically, pleadings can go on forever, unless a general or special
demurrer and traverse close the pleading by raising issues for the court or
jury to decide
Pleading in the alternative is not allowed---each party must plead
D may not raise more than one issue (cant plead in both a traverse and
confession and avoidance)
Code Pleading
o Merger of law and equity---abolishes separate law and equity courts, so that a
single court has the authority to hear claims for legal and equitable relief
o Abolition of forms of actions---plaintiffs complain need only contain a statement
of facts that form the basis for the grant of a remedy
o Fewer Pleading the number of plaintiff and defendant pleading is limited
compared to the common law system
o Wanted lots of details
What we learned from Gillespie (Code Pleading)
o Must state the necessary facts from which you can assume the conclusions. You
cannot just state the conclusion
o Basically, aside from fraud and civil rights cases: Does the other side know what
you are talking about? You cant be too specific or too general
o Cant be conclusory

B. Pleading Under the FRCP (1-16)

Most states use this now---a good pleading should be precise but doesnt have to use
All about short and plain statement
Different types of Defenses
Plain English
Common Law
So WhatI did do it, but
Motion to dismiss for failure
there is no law against it
to state a claim upon which
relief can be grantedFRCP
12 (b)(6)
I didnt do it
Factual Denial
Yes, but
Confession and Avoidance
Affirmative Defense
Technical Objections
Dilatory Plea
Motion to Dismiss for Lack of
jurisdiction, motion for more
definite statement, etc
Elements of a Cause of ActionFRCP 7(a), 8, 10
Elements are what is held in the cause of action
FRCP 7Pleadings allowed

o 7(a)6 types of pleadings

ComplaintFactual allegations
Reply to counterclaim
Answer to cross-claim
3rd party complaint
3rd party answer;
o 7(a): no other pleading shall be allowed except that the court may order a reply to
an answer or 3rd party answer
o 7(b): Complaint: shall state w/ particularity the grounds of the suit and set forth
the relief of order sought
FRCP 8aClaims for Relief
o Short and Plain statement of the grounds which the courts jurisdiction depends
o Short and plain statement of the claim showing the pleader is entitled to relief
o Demand for judgment
What makes a complaint legally insufficient?
o Missing element
o Facts are bad
o Self-conscious effort to reform the lawhow far can you go w/ this and still be
legal under Rule 11? Rule 11 places limitations on how free-wheeling one may
be when filing a lawsuit. Rule 11 does give some room for a making a good faith
argument for changing the existing law
HYPO: Complaint: Allegation 1: D breached duty to me; Allegation 2: that breach
caused me harm; Would this be dismissed?
o Probably b/c these are legal conclusions, not asserting facts to infer conclusions
o Have to say I was in the left lane and he was in the right lane, going 65 mph,
when he swerved into my lane causing an accident where I broke my arm
o Infer from that the D breach duty and caused harm
Haddle v. Garrison (1998)P alleged that D fired him from his job in retaliation for
obeying a federal grand jury subpoena and to deter him from testifying at a federal
criminal trial; As required by the relevant statute, P alleged that he had been injured in his
person or property by the acts of DsAt trial, Ds 12(b)(6) motion was granted based on
previous case that said at-will employee had no property interest in his employment and
thus, no cause of action under the statute P alleged was violated
o Issue: Whether at-will employment is considered property in order to meet the
2nd element of 1983 claim, thus warranting damages under 42 U.S.C. 1985
o Holding: The P is an at-will employee, and this property is protected under the
Constitution (due process is required only if there is tenure involved), therefore
there was property damaged. (Trial court had dismissed the case b/c of the at-will
employee status)purpose of the statute is to prevent intimidation or retaliation
against witnesses in Federal court proceedings
Mitchell v. Archibald & Kendall (1978)(W)--P is delivering to the D but there is already
another truck there so the D told P to park across the street but on property that did not
belong to the D---while waiting across the street, P is approached by a robber and shot in

the face---P sues the D claiming that D knew or he should have known of the danger due
to previous robberies
o Ps allegation included claim that the P was on the Ds premises but the D won on
a 12(b)(6) motion
o IssueWhether the 12(b)(6) motion was procedurally proper in this case?
o Holding: Yes, because the Ps argument that a jury could find that the street area
was a part of the Ds premises set forth a new theory of liability---Illinois law had
already defined premises
Consistency in PleadingFRCP 8(d)(2), 18(a)
A party may set out two or more statements of a claim or defense alternately or
hypothetically and a party may state as many separate claims or defenses as it has,
regardless of consistency
Reasons for allowing such inconsistencies in pleading
o Pleadings come early in the case before the parties know everything they will
know by the time discovery has been conducted
o Allegations in pleadings are tempered by burdens of proof
o The lawyer will often have to settle on a single version of the story before the case
comes to trial
v. Kopmann (1959)Ps husband killed in accident with the D; P sued the D

alleging that he negligently crossed the line and P also sued third party (Huls) for serving
the Ps husband alcohol in violation of an Illinois statute and claimed that Huls got her
husband drunk causing him to swerve into Kopmann---if the second allegation was true
then the D would not be guilty due to contributory negligence
o D moved to have the complaint dismissed claiming that the P had pled herself out
of court by admitting contributory negligence
o Issue: Whether inconsistent allegations can be pleaded simultaneously?
o Holding: Yes, because P could not have known which version of the facts were
true and Rule 8(d) allows for inconsistent pleadings as long as the P segregates
the different causes of actions with their respective allegations
a party sue for both causes of action at once?

o Hedges your bets

o Less expensive and time consuming
o Allows the party to wait and see during discovery
o **Subtle message that the jury may get that their job is to decide which of the 2
defendants is liable rather than whether they are liable at all
o Recruit the Ds to fight against each other
Specificity in Pleading
The Death of Notice Pleading
Conley v. Gibson (1957)(overruled by Twombly)a short and plain statement of the
claim is sufficient if it gives the defendant fair notice of the nature of the plaintiffs claim
and the grounds upon which it rests
Bell Atlantic Corp. v. Twombly (2007)(p.359)Group of telephone subscribers (Ps) sued
a number of local companies (Ds) alleging that they were violating federal antitrust laws
by agreeing not to compete with one another and by preventing competition from others

w/in their respective marketsDs moved for 12(b)(6) claiming that Ps failed to state a
o IssueShould a complaint in an antitrust case be dismissed if it states a claim that
could possibly provide relief but does not provide some evidence showing that the
claim is plausible?
o Holding: Yes, the case should be reversed because P did not provide any facts to
suggest that their claim is not just conceivable but plausible (new standard)
Overruled the Conley that said that claim should only be dismissed if the P
can prove no set of facts in support of his claim that would entitle him to
Standard went from reasonable/conceivable to plausible
12(b)(6) requires that factual allegations must be enough to raise a right to
relief above the speculative level, on the assumption that all the allegations
in the complaint are true (even if doubtful in fact)
Seems to say that 51/49 is the minimum standard for an inference to be
considered plausible
Good case to change the pleading standard b/c antitrust cases are
expensive to litigate and the issues are difficult for jurors to get right
o DissentMajority bases its departure from settled law on the grounds that
antitrust litigation can be very expensive and jurors in this case might misinterpret
evidence---these concerns can be addressed by strict controls of discovery and
clear jury instructions but do not justify dismissal of a complaint
Ashcroft v. Iqbal (2009)Iqbal filed suit claiming that government officials
discriminated against him in violation of 1983 by designating him as person of high
interest in the investigation of 9/11 based solely on his race/religion---Iqbal alleged
abuse by multiple guards but simply alleged that Ashcroft and other used discrimination
as basis of detaining him---govt filed for 12(b)(6)
o Issue: whether conclusory allegations that high-level government officials had
knowledge of alleged wrongdoing by subordinate officials are sufficient to
survive a motion to dismiss in an action brought under Bivens.
o Holding: Court held that case should be dismissed under 12(b)(6) b/c the
complaint did not contain facts plausibly showing that their policy was based on
discriminatory factors
o Iqbal established that Twombly did not just apply to anti-trust cases
o Court also rejected Iqbals argument that Rule 9(b) allowed his claim b/c it said
that malice, intent, knowledge, or other conditions of a persons mind may be
alleged generally---Court said these dont apply b/c this isnt a fraud case
o Criticism of majority opinion---substituting "plausible" doesn't make much sense
because it just inserts a different word
A lot of danger when courts are involved in comparative plausibility b/c
then the judges are starting to find facts rather than rule on the law

Common-Law Fraud and Securities Fraud

Rule 9 (b)In alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake. Malice, intent, knowledge, and other
conditions of persons mind may be alleged generally

o Heightened pleading standard b/c of the reputational effects of something like

fraudrequires a strong inference of fraud
o Does not work against Rule 8still only notice pleading but a higher level of
notice for fraud cases
o Pleader usually has to allege:
Time/place/and contents of false misrepresentations and how they were
Identity of the person making the misrepresentations
How the misrepresentations misled the Plaintiff
What the speaker gained from the fraud
Stradford v. Zurich Insurance Co. (2002)P missed payments on his insurance
premiums for coverage of his dental office and policy cancelled on 8/10/1999; P begins
paying again on 12/6/1999 after submitting no claims letter saying that he had no losses
from October to that date; on 12/14/1999 P files claim for water damage to his office
including expensive dental implants and total claim for 150,000+----P received this claim
money but amended claim to be for over a million; Insurance company didnt pay this
o P sued the insurance company who then counterclaimed against P claiming that P
defrauded the Ds
o P moved for dismissal based on Rule 9(b) failure to state their claims with
sufficient particularity---D motioned for leave to amend their counterclaims and
submitted proposed counterclaim
o Issue: Did Ds counterclaims state the claim of fraud with sufficient particularity
pursuant to Rule 9(b)?
o Holding: No, b/c did not state the time, place, and nature of the alleged
Didnt identify statement by P that was false---unclear whether the Ds
assert that the losses were improperly inflated, that the office never
flooded, or that the offices flooded during time that P was not paying for
the policy
Primary purpose of Rule 9(b) is to give notice of the claim and the factual
ground on which it is based---Ds counterclaims did not do so
o Holding: Court allowed the Ds to amend their complaint based on the proposed
amended pleading submitted to the court
Why have a Private Securities Litigation Reform Act (PLSRA)
o Securities fraud cases were going up b/c people were suing b/c they thought that
there must be something illegal/unethical going on
o Mistakes is not fraud---people make mistakes
o People thought that these lawsuits were menacing, businesses were forced to
settle even when there wasnt evidence of fraud due to expense of litigation
Comments about particularity:
o Pleading ParticularityStrong InferenceSubstantive Standard
o Substantive standard does not change overall, but P will have a harder time
getting the case to actually get to the place where you can try and decide this
Tellabs, Inc. v. Makor Issues & Rights (2007)Ps brought a claim under the Private
Securities Litigation Reform Act (PSLRA) which requires Ps to state with particularity

both the facts constituting the alleged violation, and the facts evidencing scienter or the
Ds intention to deceive, manipulate or defraud
o Issue: What are the pleading requirements under PSLRA---in particular, must a
court consider competing inferences in determining whether a securities fraud
complaint gives rise to a strong inference of scienter
o Holding: When considering a claim covered by PSLRA, Court should:
Consider the complaint in its entirety---question is whether all of the facts
alleged, taken collectively, give rise to a strong inference of scienter, not
whether any individual allegation, scrutinized in isolation, meets that
Standard for strong inference of scienterWould a reasonable person
deem the inference of scienter at least as strong as any opposing
inference?---must plead facts rendering an inference of scienter at least as
likely as any plausible opposing inference
o Purpose---creates a standard that curbs frivolous, lawyer-driven litigation while
preserving investors ability to recover on meritorious claims
o Scalia Concurrencethe test should actually be whether the alleged facts create
an inference that is more plausible than any other opposing inference b/c there is
no evidence that the statute intended to change the normal rule of tie goes to the D
o Alito ConcurrenceFacts should not be considered if they are not pleaded with
sufficient particularity---rather than viewed in the entirety
o Stevens Dissentstandard should be the familiar probable cause standard
Civil Rights Litigation
What do you need to bring a 1983 claim?
o D must have deprived P from some Federal, constitutional, or statutory right
o Under color of state lawstate must have done it
v. Tarrant County Narcotics (1993)---Two Ps brought cause of action under

42 1983 against Tarrant County (D) for improper search of their home; One plaintiff
alleged that the officers had assaulted him and the other plaintiff alleged that officers had
killed her dogs during a search conducted in her absence---District Court dismissed the
case b/c the Fifth Circuit had enacted a heightened pleading standard for claims brought
under 42 1983 and the Court of Appeals Affirmed
o Issue: Whether a federal court may apply a heightened pleading standard other
than normal Rule 8(a) standard for civil rights cases alleging municipal liability
under 42 1983?
o Holding: No, a Federal court may not apply a heightened pleading standard
Rule 8(a) states that the complaint must only put the D and the court on notice of
the causes of action by alleging facts and the basis for the claim
Rule 9 is for fraud cases only and may not be extended to other types of
Why did the fact that qualified immunity exists facilitate an argument for a heightened
pleading standard?---Why did the Fifth Circuit before Leatherman institute a heightened
pleading standard?

o Purpose of the qualified immunity defense is to keep individuals from costly

litigation battles and long discovery periods, so it logically leads to a heightened
pleading standard
o Ds will just respond with a motion that contains the affirmative defense seeking
that the complaint itself is inadequate
Honesty in Pleading
Rule 11imposes sanctions for failure to do adequate legal or factual research
o Rule 11 (a)either the attorney or the party (if the party is representing
themselves) must sign the documents
o Rule 11 (b)ways you can violate Rule 11
Filing for an improper purpose such as harassment or unnecessary delay
Subjective Standard
Legally Frivolouslegal contentions must be based on existing law or
must be a non-frivolous argument to extend/modify/reverse existing law
Objective TestWould a reasonable lawyer think?
At the time of the complaint, the facts you are alleging, as opposed to the
legal argument, are warranted based on evidentiary support OR if you
identify them, will have evidentiary support after discovery
Objective Test
o Rule 11 (c)Sanctions
Court may impose Rule 11 sanctions or ask for briefing on Rule 11
without a motion by the party
Motion by a party for sanctions should be separate for other motions
courts may impose costs of the sanctioned party for this motion
o Cooling off Period---parties must wait 21 days before filing a Rule 11 motion
although the court can do so immediately
o Notes on Rule 11 sanctions
No monetary sanction can be imposed on a represented party for legal
Not meant to be compensatory or cost shifting---meant to be a deterrence
(even though sometimes attorney's fees will be awarded but only as
Sometimes a court will strike certain allegations from a complaint which
then can functionally act as a dismissal of the complaint OR if the
defendant has violated Rule 11, the Court can deem certain allegations to
be admitted
Not a requirement for the Court to impose ANY sanctions
Walker v. Norwest Corp. (1996)Walker (P) from South Dakota and his lawyer,
Massey, filed suit against Norwest (D) and other Ds for state causes of action in Federal
court; complaint stated that jurisdiction was based on diversity but the complaint
contained factual allegations that some of the other Ds were South Dakota residents; D
informed Massey that he should dismiss complaint or D would file Rule 11 motion;
District Court granted Rule 11 sanctions and Ps appealed

o Issue: Did the district court abuse its discretion by imposing Rule 11 sanctions for
failure to correct an obviously inadequate jurisdictional foundation in the
o Holding: No, the District Court acted within its discretion when sanctioning
Massey---Ps burden to plead citizenship of the parties when invoking diversity, P
has burden of making a reasonable investigation to determine Ds citizenship
before filing diversity complaint
o Example of a legally frivolous argumentfailure to do adequate legal research
Christian v. Mattell, Inc. (2003)P and his lawyer, Hicks, filed complaint in Federal
court against Mattell claiming that Mattell violated copyright law but using one of Ps
dolls (Claudene) to develop other dolls Cool Blue and Va Tech Barbie; D presented
evidence that the copyright predated Claudene by six years and that the copyright year
was on the back of the dolls head; D moved for SJ and filed Rule 11 motion which Court
granted; Court also found that Hicks had acted boorishly during other parts of the trial
o Issue: Did the District Court abuse its discretion in imposing Rule 11 Sanction?
o Holding: PossibleRule 11 orders vacated and case remanded
Court did not abuse its discretion by ruling that the complaint was
frivolous given the ease with which Hicks could have determined that
Mattells dolls predated Ps
However, Rule 11 does not allow for sanctions for misconduct outside the
pleadings, written motions, and other papers---since District Court
mentions these things, it is unclear whether those issues were part of the
District Courts consideration when sanctioning Hicks
Golden Eagle v. Burroughs (1986)P filed suit against D in Minnesota state court; D
removes to Federal Court and then has the case transferred to a District Court in
California; D moves for SJ claiming that California not Minnesota law should govern and
the statute of limitations has run in California and the economic losses sought by P are
not recognized in California state law; District Court rules against D in SJ motion and
asks for briefing on Rule 11 violation since the D did not clarify that he was asking for an
extension of existing law and D did not cite adverse authority
o Issue: Whether Rule 11 requires the court to enforce ethical standards of advocacy
beyond the terms of the Rule itself?
o HoldingNo, Rule 11 sanctions were not appropriate in this case
Rule 11 does not require that counsel differentiate b/t a position which is
supported by existing law and one that would extend it---Court says this
would be an unmanageable distinction
Although unprofessional, not citing adverse authority is not sanctionable
under Rule 11
1983 Amendment
o Rule 11 was chilling the creativity of lawyers (i.e. lots of sanctions with civil
rights issues)
o What was changed?
Sanctions are now discretionary as opposed to mandatory
There is a cooling off period of 21 days
o Reasons for Amendments

Fears that availability of Rule 11 takes away from merits of the case to
satellite issues and threats of Rule 11 as a litigation weapon

Allocation of Pleading Burdens

Burden of PleadingWho ought to lose if the jury thinks the evidence is weighed 50/50?
o Who has the burden of pleading in a qualified immunity good faith defense?
o How does the court decide?
Which party has better access to the info that relates to the issue
The language of the statute
D is often in a better position to know the mental states needed to have a
cause of action
Burden of ProductionIf P has this burden, at trial P must produce enough evidence on a
particular point to get to a juryif not, then DV
Burden of PersuasionAssuming parties have produced enough evidence, the party
w/burden of persuasion can be defined as the party who bears the risk of losing when the
evidence is equal
Gomez v. Toledo (1980)P brought a 42 1983 claim against D claiming that his
discharge for the police force violated his right to procedural due process; P filed 12(b)(6)
claiming that since D was entitled to qualified immunity for acts done in good faith w/in
the scope of his official duties, P was required to plead as part of his claim that D acted in
bad faithDistrict Court agreed and granted motion to dismissCourt of appeals
o Issue: Whether in an action brought under 42 USC 1983 against a public
official whose position might entitle him to qualified immunity, a P must allege
bad faith in order to state a claim or whether the D must plead good faith as an
affirmative defense?i.e. Who has the burden of pleading for qualified
o Holding: Since qualified immunity is an affirmative defense, the D has the burden
of pleading and Ps complaint cannot be dismissed under 12(b)(6) for failing to
allege bad faith
o P may have no way of knowing in advance whether the official actually had the
requisite belief or if the public official will even claim qualified immunity
o Concept of qualified immunity does not appear in the text of 1983, but was
read into the statute by the Supreme Court in the twentieth century. The
original state was enacted in 1871 and the drafters of that statute did not
concern themselves with concepts like qualified immunity (T/F Question)
Defendants Response to the Complaint
A. Default
FRCP 55Entry of default will be made by clerk if there is no responsive paper filed by
the D; but P still has to move for default judgment based on default and get a ruling on
damages if those are involved
Can have your default removed if you file an answer before there is default judgment

B. Pre-Answer Motions and Rule 12 (b) Defenses

On a motion to dismiss on FRCP 12 (b)(6) grounds, the court determines whether, even
assuming that the facts alleged are true, the complaint states a claim upon which relief
can be granted
o D is never compelled to file a motion under Rule 12 but if he does, he must
include therein all defenses and objections that he could then raise by motion---if
he omits an available defense or objection, he may not make a further motion on
the omitted ground
o 12(a)--Must be w/in 21 days of being served with the summons and complaint
o 12(b)---list of possible defenses to a claim
Lack of subject-matter jurisdiction
Lack of personal jurisdiction
Improper venue
Insufficient process
Insufficient service of process
Failure to state a claim upon which relief can be granted
Failure to join a party under Rule 19
o 12(e)party may move for a more definite statement if the pleading is so
ambiguous/vague that cannot prepare a response---must be made before filing a
responsive pleading and must point out defects complained of and details desired
o 12(h)defenses in 12(b)(2)-12(b)(5) are waived if not waived initially---12(b)(1), 12(b)(6), and 12(b)(7)
In a 12(b)(6) motion, the Court should assume the truth of the complaints factual
allegations and simply ask whether the complaint sufficiently states a valid cause under
Rule 8(a)
You would rather raise a 12(b) defense in a motion instead of in an answer b/c it might
get dismissed and then you wouldnt have to answer at all
C. The Answer
Must contain a specific denial or admission of each averment of the complaint, or a
general denial w/ specific admissions of certain averments
o Where D is w/o knowledge or information sufficient to form a belief, a statement
to that effect constitutes a denial
o Failure to deny constitutes an admission
o Answer may also contain any of the 12(b) motions, and it may state any
affirmative defenses, counterclaims, cross-claims, or 3rd party claims
General Denialat common law, the D could have a general denial of each and every
one of the allegations. B/c of 12(b)(4), this doesnt happen a lot---In California, there are
more general denials b/c the pleading process is as important
o Complaints that are verified are sworn in California, which then makes it
available for impeachment purposes
o D is not allowed to issue a general denial when there is a verified complaint
You can deny if:

o You think it isnt true

o You arent sure, but you have no reason to believe it is true
o Some one told you it was true, but you dont know this for a fact
FRCP 8(b)
o To respond to a pleading, parties must state their defenses (in short and plain
terms) and admit or deny the allegations asserted against them. Denials must
fairly respond to the substance of the allegations. If a responsive pleading is
required, parties are deemed to have admitted all allegations they do not deny
(except for allegations relating to the amount of damages)
Zielinski v Philadelphia Piers, Inc. (1956)P sued D for personal injuries arising out of
a collision of two forklifts that had Ds initials painted on their sides. Paragraph 5 of
complaint alleged that the forklift causing injury to P was owned, operated, and
controlled by the D.D answered with a general denial as to the averments of
paragraph 5---after the SOL had run, P learned that someone else owned the forklift and
P had sued the wrong party---P moved for the court to deem it admitted that D owned and
operated the forklift b/c D acted in bad faith by not alerting P of the mistake
o Issue: Does a vague general denial of liability, where a specific denial of
ownership was required constitute bad faith pleading and give rise to an
admission of Ds ownership where P, in reliance on Ds misleading pleading, is
precluded by the statute of limitations from suing the right owner?
o Holding: Yes, motion granted---Ds general denial was pleaded in bad faith,
misled P, and D failed to inform P of the mistake w/in a reasonable time after its
discovery---therefore, D estopped from denying ownership after expiration of
o Easier case for the court b/c the insurance company was paying either way since
they represented both potential Ds

Affirmative Defenses
FRCP 8(c)
D confesses the truth of the complaints allegations but avers that Ps theory of liability,
even though sustained by the evidence, does not apply to D b/c of additional facts that
place D in a position to avoid any legal responsibility for his action. An affirmative
defense must be presented in the answer; otherwise, it is waived and cannot be introduced
at trial
Special Affirmative Defense: the Statute of Limitations
Specifically mentioned in Rule 8(c)
What is the value of a statute of limitations?
o Preserve the record, societies interest in making sure the litigation process has
some procedure
o Protects defendants from stale claims, at some point you should be free from the
threat of litigation
o Ensures repose for the D by allowing her to move on with her life
o Encourages Ps to bring suits promptly
Statute of limitations---uniquely different b/c you could put it in a pre-answer motion,
which you cant for most other affirmative defenses

Standard Rule for SOLTime period is computed from the day on which the P could
have commenced suit (i.e., date the action accrued) to the day on which he actually
commenced the suit
United States v. Kubrick (1979)P underwent surgery in a VA hospital in April
1968After his release, Kubrick was diagnosed with bilateral nerve deafness by an ear
specialist. A doctor suggested that the loss might have been due to the use of neomycin
when the VA treated his right femur. Kubricks claim for increased benefits was denied,
resubmitted, and denied again. VA later recognized that hearing loss might have been
caused by neomycin but rejected Ps claim claiming treatment was in accord with
accepted medical practices---P sued and district court found that P had no reason to
suspect negligence until conversation in 1971---Court held that Ps claim accrued June
1971 and was within two year SOL
o Issue: For statute of limitations purposes, does a tort claim accrue when a plaintiff
learns that his injury was negligently inflicted?
o Holding: No. A tort claim does not accrue for the purposes of the statute of
limitations when a plaintiff learns that his injury was negligently inflicted.
o The facts about causation of an injury may be unavailable to P or at least very
difficult to obtain.
o The court held that under these facts, P need only have made inquiry to a doctor
of average training to determine that he should not have been treated with
neomycin under these circumstances.
o Stevens Dissent--Normally a tort claim accrues at the time of injury but it is well
settled that the normal rule does not apply to medical malpractice
In medical malpractice cases the harsh consequences of the standard
approach has been generally considered unacceptable.
P exercised reasonable diligence in attempting to establish a medical basis
for increased disability benefits- The issue of diligence in a negligence
case should be resolved by the finder of fact.

D. Counterclaims
GenerallyClaims that D may have against a P; come in two different types
o Compulsory or Permissive
FRCP 13Counterclaim and Crossclaim
o 13(a)(1)Compulsory Counterclaims--must state counterclaims arising out of the
same transaction or occurrence (STO) that gave rise to the Ps complaint---so
closely related to Ps claim that they can be adjudicated in the same action w/o
creating confusion for trier of fact
Potential Inquiries for STOCourts vary on how many if any of these are
required before counterclaim is compulsory
Whether the issues of law and fact in the various claims are
essentially the same
Whether, in the absence of the compulsory counterclaim rule, res
judicata would bar a subsequent suit on the counterclaim
Whether the same evidence could be used to support the
Whether a logical relationship exists b/t claim and counterclaim

Exceptions to STO
Immature Claims
Inapplicable to Claims until service of pleading
Lack of Jurisdiction over Third Partiesif counterclaim requires
joinder of some addtl person not subject to courts jurisdiction
Pending Lawsuitsalready filed in another court
Ps complaint rests on courts quasi in rem/in rem jurisdiction
Injunction/Declaratory Judgment Actions
o 13(b)Permissive CounterclaimsPleading may state as a counterclaim any
claim against an opposing party not arising out the same transaction or occurrence
Requires an independent basis for federal subject matter jurisdiction (it
will NOT satisfy supplemental jurisdiction or else it would be a
compulsory counterclaim)
If you do not assert a permissive counterclaim you do NOT waive it
o Difference b/t permissive and compulsory---"A permissive counterclaim must have
an independent jurisdictional basis, while it is generally accepted that a compulsory
counterclaim falls within the ancillary jurisdiction of the federal courts even if it
would ordinarily be a matter for state court consideration."
Plant v. Blazer Financial Services (1979)P borrowed money from D and then sued D
under the federal Truth-in-Lending-Act for failing to make certain disclosures at the time
the loan was made; D counterclaimed for breach of K (state claim) and lacked an
independent basis for federal subject matter jurisdiction. Trial court found that Ds claim
was compulsory and thus w/in Courts ancillary jurisdiction. P appealed
o Issue: whether a state debt counterclaim in a truth-in-lending action is compulsory
or permissive
o Holding: Counterclaim to Truth-in-Lending action is compulsory b/c a single
aggregate of operative facts, the loan transaction, gave rise to both P and Ds
o Most common/important test---is there a logical relation b/t the b/t the claim and
the counterclaimhere, same operative facts serve as basis for both claims
o Policy Considerations
For compulsory---judicial economy intention of Rule 13
For permissiveDont want to discourage those individual from bringing
claims due to fear that they will be met with a response

Type of Claim

Addition of
Second Claim by

FRCP Pleading Rule: Can

Claim or Counterclaim be
P may join as many
claims as she has against
Source: FRCP 18(a)

Federal Jurisdiction
The additional claims
may be heard by the
federal court even if they
lack an independent basis
for federal jurisdiction if,
together with the claim
that is independently

Consequences of
Failure to Raise
Claim (Preclusion)
Failure to join the
additional claims
will result in their
being forever barred
if they arose out of
the same transaction
as the initial claim

supported, they form a

single case or
controversy (i.e. there is
a common nucleus of
operative fact

Third-Party claim
by D (=3PP)
against 3PD

Claim by P
against 3PD

Source: the principle of

jurisdiction as codified
in 28 U.S.C. 1367
D (=3PP) can raise any
Ds third-party claim
available counterclaim
may be heard by the
against 3PD, if and only if federal court even if it
3PD is liable for all or part lacks an independent
of Ds liability to P
basis for federal
jurisdiction if it arise out
of the same transaction or
Source: FRCP 14(a)(1)
occurrence as the Ps
Source: 28 U.S.C.
1367 and case law
Once D has validly
The counterclaim may be
asserted a third-party
heard by the federal court
claim against 3PD, P can
even if it lacks an
assert against 3PD a claim independent basis for
if and only if it arise out
federal jurisdiction if it
of the same transaction or arise out of the same
occurrence that is the
transaction or
subject matter of Ps claim occurrence as a Ps
against D
Source: FRCP 14(a)(3)

The Reply

FRCP 7(a)

Source: 28 U.S.C.
1367 and case law

Source: Federal
case law applying
the same
transaction theory
of claim preclusion

Ds failure to raise
an available thirdparty claim will
NOT result in its
being barred by
preclusion principles
in a later proceeding

Failure to raise the

counterclaim will
result in its being
forever barred if it
arose out of the
same transaction or
occurrence as the
Ps claim
Source: Federal
case law on
counterclaims and
claim preclusion
(FRCP 13(a)
embodies this rule,
but it is not the
source of law for it

o Usually pleadings end with the answer. However, Rule 7(a) requires P to file a
responsive pleading (reply) to a counterclaim. Reply is required where Ds
answer contains a counterclaim designated as a counterclaim
o P need not reply to an affirmative defense---deemed to deny or avoid the
allegation of the defense
Amendments to Pleadings
A. Prejudiceidea that at some point the other side has to make decisions about how to present
their case which becomes difficult if the other side keeps changing their story
FRCP 15(a)Party may amend their pleading once within:
o 21 days of serving the pleading or
o If pleading requires a responsive pleading, 21 days after service of responsive
pleading or 21 days after service of a motion under Rule 12(b), (e), or (f)
whichever is earlier
o Otherwise, have to get permission of the courts leave or permission of opposing
Beeck v. Aquaslide (1977)P sued D based on belief that D was the manufacturer of a
slide on which P was severely injured during a gathering put on by Ps employer; three
different insurance companies (Ds, employers, and apartment complexs) held
independent investigations determining that D was the manufacturer so D admitted to
manufacturing the slide in their answer; 6 months after the SOL runs on Ps claim, D
finds out they are not the manufacturer; D moved for leave to amend its answer and have
separate trial regarding who manufactured the slide; Trial court grants both motions and
jury finds that D was not the manufacturer---Trial judge enters judgment for D and P
o Issue: Did the trial court abuse its discretion in granting the motion for leave to
amend and the motion for a separate trial on the issue of who manufactured the
o Holding: No, the trial court did not abuse their discretion b/c no evidence of bad
faith on part of the D and rules require that leave to amend should be freely
Would have been prejudicial to the D to deny the amendment since D was
just asking to contest a disputed factual issue at trial
o P argues prejudice since the SOL has already run on the personal injury claim so
they won't recover at all from anyone---Court said that P had the burden to prove
this and failed to do so
B. Relation Back
FRCP 15 (a)regulates when and how an amendment can be made (must be satisfied
before moving on to the requirements in FRCP 15(c)
FRCP 15(c)Relation back permitted when:
o SOL governing a particular COA permits relation back of amended pleadings
Makes sure that Rule wont contravene SOL which permits relation back--defers to a SOL only if the statute is more generous on relation back

o Amended claim or defense arose out of the same transaction or occurrence as the
original pleading
o Amendment changes the party or the naming of the party and satisfies following
Arises from same transaction or occurrence as the original pleading (Rule
Fair notice and awareness of a mistake in identity
Fair notice---w/in 120 days and opposing partys opportunity to
prepare a defense was not prejudiced by delay
Awareness of a mistake in identitythe person joined knew or
should have known that the person would have been sued under
the original pleading but for some mistake in identity
Moore v. Baker (1993)P sued D after D performed heart surgery that went badly; P
filed suit on last day before SOL alleging that D violated informed consent law; D filed
for SJ and P moved to amend complaint to assert a medical malpractice claim related to
Ds performance of the surgery; District court denied motion stating that medical
malpractice barred by SOL; P appealed
o Issue: Whether the proposed amendment asserting the medical malpractice claim
relate back to the original complaint so as to save the medical malpractice claim
from the SOL?
o Holding: The amended complaint did not relate back b/c Ps original complaint
was a separate occurrence and did not put D on notice of a possible medical
malpractice claim---two claims were completely distinct since one involved Ds
action before the surgery and another involved Ds action during/after surgery
Bonerb v. Richard J Caron Foundation (1994)P is rehabbing at Ds facility and is
injured while playing basketball; Files complaint alleging negligence in maintaining the
bball court; P gets a new lawyer and then moves to amend his complaint to counseling
malpractice; D objects b/c 2 year SOL has passed and amendment does not relate back
o Issue: Does the proposed amendment asserting the counseling malpractice claim
relate back to the original complaint?
o Holding: Proposed amendment does relate back b/c Court finds that the new
amendment arises from same transaction or occurrence and the D is properly put
on notice of the potential lawsuit---therefore, all protection of SOL has been
Worthington v. Wilson (1992)---P files suit against D in state court exactly two years after
he is arrested and allegedly suffers injury from three police officers; P does not
specifically name the officers just says unknown officers and the City removes to
Federal court; several months later, P moves to amend the complaint by adding the name
of the officers; Ds move to dismiss amended complaint b/c 2 years SOL has run
o Issue: Does Plaintiffs amendment of its complaint to identify the two police
officers relate back to the date the original complaint was filed under Rule 15(c)
of the Federal Rules of Civil Procedure?
o Holding: Relation back does not apply b/c this is not an example of mistake
concerning the proper party---P didnt make a mistake, P just did not know who
the three officers were

o Court does find that the Ds had to be aware b/c the Ds admitted that they were
aware that they were the officers in question
o Three requirements for relation back:
Amendment changes the party or the naming of the party
Defendant received notice of the action w/in the service of process period
Defendant knew that it was the party being sued
Scope and Relevance
Ends lawsuits for two reasons
o Produces information about the merits of the lawsuit and permits parties to make
informed judgments about the strength of their own position and their opponents
o Costs time and money which might enable one of the parties simply to wear down
the other---or both sides wear each other downw/o regard to the merits of the
Discoverable Information---must be relevant to either a claim or defense or if judicial
permission is granted , to the subject matter of the lawsuit
Legal Relevanceinformation tends to prove or disprove something the governing
substantive law says matter
o Spillenger Requirementdoes it make more or less likely that something is or is
not true
FRCP 26 (b)(1)---Scope in General
o Discovery allowed of any matter that is relevant to the claim or defense of any
party in the pending action and is not privileged
o Evidence need not be admissible to be relevant or discoverable
FRCP 26 (b)(2)Limitations on Frequency and Extent
o Court required to limit discover that is:
unreasonably cumulative or duplicative
obtainable from another source more conveniently
the burden/expense of the proposed discovery outweighs the likely benefit
party seeking the discovery has had ample opportunity to obtain the
information during prior discovery
o Electronically Stored Information (ESI)Dont have to provide discovery of ESI
from sources that the party identifies as not reasonably accessible b/c of undue
burden/cost---balancing test b/t the burden of producing the information vs the
benefit from discovery of the information
Party from who discovery is sought must show that the info is not
reasonably accessible
Davis v. Precoat Metals (2002)-- Ps worked in D's plant and file suit under Title VII
alleging race discrimination due to a hostile work environment including racial insults by
D's management and discrimination against African Americans and Latinos in
hiring/promotion practices; Ps file a motion to compel seeking information about other
complaints made against the D by other nonclerical/nonadministrative employees
working the same plant as P during the same time period

o Issue: Whether the information sought by Ps is discoverable?

o Holding: Yes, the information is discoverable b/c the Ps narrowly tailored their
request to complaints made in the relevant time frame, at the same plant, and only
complaints regarding race/national origin discrimination
o Information still discoverable even if not admissible b/c reasonably calculated to
lead to the discovery of admissible evidence
o Discovery orders are subject to appellant review since courts dont like
overturning a sentence based on discovery order
Steffan v. Cheney (1990)P sued Secretary of Defense (D) claiming he was
constructively discharged from the Navy b/c he said he was gay; P is challenging the
constitutionality of discharging individual b/c they identify that they are a homosexual; P
refuses to answer deposition questions about homosexual conduct during/after his tenure
as a midshipman (5th Amendment self-incrimination due to sodomy laws of Maryland);
District Court dismissed the case since P would not answer questions
o Issue: Did the District Court abuse its discretion in dismissing Ps lawsuit for
failure to comply with its discovery order?
o Holding: Yes, the District Court did abuses its discretion b/c P was discharged
based on a statement that he was homosexual not for homosexual conduct--therefore, questions about homosexual conduct are irrelevant to the actual COA
o If P had denied that he said he was a homosexual, then perhaps this would be
relevant but he admitted that fact so it is no longer relevant
o Homosexual conduct may affect the relief P is seeking (reinstatement to the
Academcy) but that does not make the info relevant to the COA


Common Privilegesattorney-client, doctor-patient, spousal, priest-penitent, corporate

communications sometimes, newspapers privilege to keep sources confidential, privilege
against self-incrimination
Implied Waiverparty can waive a privilege by failing to assert it or taking some action
inconsistent w/ claiming the privilege such as disclosing the privileged information to a
3rd party
FRCP 26(b)(5)(B)Information Produced
o If a party has produced information they believe may be privileged, the party may
provide written notification to the party to whom the information was given
o Notification should provide sufficient detail to allow the receiving parties to
evaluate the claim for privilege
o After a party receives such a notification, must return, sequester, or destroy the
specified info and all copies which includes reasonable efforts to retrieve any
privileged information that has been passed on to 3rd party
o If the party disagrees w/ the claim for privilege, the party can present info to court
but cannot use the information until the claim has been resolved
Privilege and PrivacyThere is no privacy privilege. Dont assume that privilege
attaches to anything private. Note that w/ patient-doctor, or priest-penitent privilege, the
privilege protects communication only. Therefore, a doctor may have to reveal the
names of patients, for example, unless a state statute provides o/w

If a states substantive laws are being applied (in Federal or State court), that states laws
of privilege also apply, except as to the attorney work product protection, which is
governed by federal common law
Upjohn Company v. United States-- Upjohn Co. conducted an internal audit and
investigation that revealed alleged illegal payments made to foreign officials in exchange
for business. Upjohn volunteered notice of such actions to the Internal Revenue Service
(IRS), who issued a summons for information collected by Upjohn, including internal
questionnaires developed and sent by General Counsel to managerial employees. Upjohn
maintained those documents were protected by the attorney-client privilege
o Issue: Whether within the corporate context attorney-client privilege extends to
employees not w/in the control group of the corporation
o Holding: Court held that the information was protected by the attorney-client
privilege and rejected the notion of the privilege being limited to the control
o Lower level employees may have information needed by the attorney and without
attorney-client privilege, the attorney cant get the information b/c employees
afraid their communications arent protected

Discovery Devices
A. Required Disclosures
Certain information must be disclosed at the outset of discovery w/o a request by the
opposing party
FRCP 26(a)(1)Initial Disclosures
o Names of witnesses and individual that are likely to have discoverable
information that the disclosing party may use to support its claims/defenses unless
the use would be solely for impeachment
o Copy or description of documents that the party has in its possession, custody,
control and may use to support its claim or defenses unless the use would be
solely for impeachment
o Calculation of damages including the non-privileged documents supporting the
computation which includes documents bearing on the nature and extent of
injuries suffered
o Copies of insurance agreements that may provide coverage for part or all of any
judgment that might be entered in the action
B. Interrogatories
Questions from one party to another (no non-parties)
Presumptive maximum of 25 interrogatories but leave of court may be obtained for more
and local rules may provide for a different maximum
Cheaper than Depos but less effective in obtaining anything but the most skeletal kinds of
Usually used at the outset of the discovery phase in order obtain basic info such as
identity of witnesses, and to pin down opponents legal theories

Responding party has a duty to make reasonable inquiries in order to answer the
Types of Interrogatories
o Source (identification)
Ex. Interrogatory that says name all the employees responsible for
handling claims of defective merchandise over the last 5 years
o Substantive
Ex. Interrogatory that asks party to identify each witness whose testimony
you plan to introduce at trial
Speaking to the case the other side is going to develop
o Contention (very important)
Ex. Do you contend that Plaintiff was inside or outside the crosswalk at
the time?
Trying to get directly to the theory of the other sides case
FRCP 33(d)allocates the cost of responding to certain broadly framed interrogatories
a party served w/ interrogatories may produce business records in lieu of answering the
interrogatory when the burden of extracting the requested info would be substantially
equal for either party
o Responding party must state that the document DO contain the information rather
than simply saying the MAY contain the information
o The burden of deriving the answer must be substantially equal for the requesting
party and the producing party---producing party bears the burden of proof here

C. Request for Admissions

No presumptive maximum
Only served on parties but does not necessarily have to be an adverse party
Usually articulated as: Do you or do you not admit that?
Only used to admit/deny FACTS---not assessments of law
Admissions made in response to a request under FRCP 36 are deemed to be admitted
factsBUT only for the purpose of the pending litigation (i.e. no preclusive effect in
subsequent litigation)
Back specifically by the incentives created by the sanction described in FRCP 37(c)(2)
basically says that if you fail to admit what is requested under Rule 36 and it turns out to
be true, then the requesting party may move that the party who failed to admit pay the
reasonable expenses of proving it was true---however, there are a lot of loopholes for this
so look at the rule closely
D. Depositions
Can depose anyone rather than just the parties---have to compel someone to show up
through subpoena---Only discovery device you can use on non-parties
Timingsubject to the restrictions of FRCP 26(d) which presumptively postpones the
commencement of discovery until after the discovery conference
Presumptive max of 10 depositionsfurther depos require a court order but fairly easy to

More expensive than interrogatories b/c of attorneys fees and costs of a court reporters
services but usually more effective in pinning down deponent b/c testimony is taken
under oath and follow-up question by attorney is possible
More useful than interrogatories as evidence at trial; although deposition testimony is
hearsay evidence that will ordinarily not be admitted when the witness is available to
testify in open court, it is often admissible for purposes of impeachment
FRCP 30(b)(2)Deponent may be requested to bring particular documents w/ her to the
depo (so as to avoid futility in questioning on particular subjects); if attendance is
compelled by subpoena, this order is known as a subpoena duces tecum
FRCP 30(b)(6)Organizational (corporate) party may be required to designate
appropriate individual to be deposed on particular subjects of the deposition identified by
the deposing party
Rule 30(c)(2)Objections
o Objections must be stated in non-argumentative form and are to be recorded in the
record but the examination proceeds
o Attorney may not advise a client not to answer a question except to preserve a
privilege, suspend the privilege to seek a protective order, or to enforce a
limitation on the scope of the deposition established by the court

E. Requests for Production

Timingsubject to the restrictions of FRCP 26(d), which presumptively postpones the
commencement of discovery until after the discovery conference described in FRCP
No presumptive maximumbut of course the possibility of limiting discover under
FRCP 26(b) remains
FRCP 34 (c)---possibility of compelling production from non-parties under limited
circumstances---Rule 45
With respect to requests for production of documents, there is a difference b/t concluding
(as a responding party) that a particular document is not even included in the adverse
partys request, and concluding that it is objectionable on some ground such as relevance
, privilege, or work product---read FRCP 26(b)(5)
Party must produce documents as they are kept in the usual course of business or must
organize and label them to correspond to the categories in the request
F. Medical Examinations
No presumptive maximum
Timingsubject to the restrictions of FRCP 26(d), which presumptively postpones the
commencement of discovery until after the discovery conference described in FRCP
No presumptive maximum
Only discovery device that requires a higher threshold than FRCP 26(b)(1)s relevance
standard---always requires a court order
Must show both that mental or physical condition is in controversy and that there is
good cause for examination

The Work Product Doctrine

Hickman v. Taylor (1947)---P brought wrongful death suit against D after Ps husband
who was an employee of D, died during an accident on Ds tugboat; Prior to but in
anticipation of litigation arising out of the incident, Ds attorney interviewed several
people w/ information about the incident; information took three forms, private
memoranda of interviews w/ witnesses, written statements of witnesses, and oral
recollection of interviews w/ witnesses; P sought discovery of this infoDistrict Court
ruled that info was not privileged but Court of Appeals reversed claiming info was work
product of the lawyer
o Issue: Is the information prepared by Ds attorney in anticipation of trial
privileged and hence protected from discovery?
o Holding: Information is relevant and not within the attorney-client privilege b/c
not communication b/t attorney and client---HOWEVER, still protected from
litigation b/c of a conditional privilege for attorneys work product
o Relevant and nonprivileged materials prepared by attorney w/ eye to litigation are
protected unless other party can show
Substantial need for the materials and
An inability to obtain equivalent material by other means
o Written statements/private memo contained info available to the P and the oral
statements are not made available b/c involves the Ds attorneys mental
o Ruling included in the FRCP 26(b)(3)expanded to include any party
representative rather than just attorneys and gave absolute protection to the
mental impressions, conclusions, or opinions of a partys attorney or other
FRCP 26(b)(3) Requirements to be Protected as Work Product
o Document/Tangible Thingstill applies to other forms of discovery
o For or in anticipation of specific litigationbut for the litigation, the document
would not have been created
Has to be a reaction to specific litigation
Most of the litigation is over this issue
o Has to be prepared by the party or the partys representative
o FRCP (b)(3)(B)Court must protect the disclosure of mental impressions,
conclusions, opinions/legal theories of partys attorney or other representatives
o FRCP 26 (b)(3)(A)(ii)Non-opinion based documents that would otherwise be
classified as ordinary work product, then IF the party seeking has substantial need
and non-disclosure of the info would impose an undue hardship, then discoverable
How to work through a Work Product Problem
o Do you have a work product Problem: Are there documents/tangible things
collected in anticipation of litigation by a party/representative?
o If yes, then you go to the 2nd step: Is it Ordinary Work Product or Opinion
Work Product?
Ordinary Work Productdoes not include thought processes
Written statements
Takes something objective looking and sounding to be ordinary
work product

Opinion Work Productinclude mental impressions of the attorney

Oral recollections
Memoranda of interviews (saturated w/ theories)
o If it is Ordinary Work Product, then it can be made discoverable if:
Show substantial need for the material AND
Cannot obtain material w/o undue hardship
o If it is Opinion Work Product---absolute protection and NOT discoverable at all
Discovery Abuse, Sanctions and Electronic Discovery
Silvestri v. General Motors Corp. (2001)P files products liability claim based on a
faulty airbag against D after he is in an accident in a car manufactured by D and owned
by Ps landlady; P waits 3 years to give D notice of the claim so D has no chance to
inspect the vehicle before it was repaired; District Court dismissed Ps lawsuit on ground
that P breached his duty to either preserve the vehicle or notify D about the availability of
the evidence
o Issue: Was dismissal of Ps lawsuit an appropriate sanction for the spoliation of
evidence in this case?
o Holding: Yes spoliation was an appropriate sanction due to the extraordinary
prejudice to Ds case since this was the only evidence from which D could
develop a defense
o Spoliation---destruction, material alteration, or non-preservation of evidence
pertinent to pending or reasonably foreseeable litgation---Court-imposed
sanctions based on Courts inherent power to control he judicial process and
o Even though P did not own the vehicle, if he anticipates litigation involving the
evidence he must give the opposing party notice of access to the evidence or of
the possible destruction of the evidence
FRCP 26 (g)requires parties to sign disclosures, discovery requests, and objections and
punishes the parties for unjustified requests and refusal even when the parties behavior
does not violate a court order
o Suggests that attorneys fees will be an appropriate sanction for most violations
o No requirement that the plaintiff must first file motion to compel before sanction
can be imposed under FRCP 26(g)operates like FRCP 11 but for discovery
FRCP 37 (b)
o Only comes into play when the party refuses to comply w/ a specific court order
instructing him to comply---not when an objection is raised (unlike Rule 26)
o If a party specifically objects to her opponents discovery request, she cannot be
sanctioned under FRCP 37 with respect to that request unless her opponent first
makes a successful motion to compel and the party does not comply w/ the
ensuing order to compel
Summary Judgment
Burden of Production
o Declares which side needs to produce sufficient evidence

o If the other side doesnt show this, then you would move for a judgment as a
matter of law
o It is what you have to do to get to a jury
Two Questions for Summary Judgment Analysis
o Has the Moving Party done enough to.(get us to question #2)?
o Has the Non-Moving party done enough to avoid Summary Judgment?
o 56(a)Court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law
Adickes v. S.H. Kress & Company (1970)P is refused service at a racially segregated
lunch counter and sues the restaurant owner (D). Liability depended on whether or not
the business had acted in concert with local authorities thus satisfying the color of law
requirement under 1983. Even though undisputed that officer was present, P produced
no evidence of communication b/t police and D. D produced evidence from D and police
claiming no communication. D moved for SJ.
o Issue: Whether the moving party has the burden of showing that there is no
genuine issue of material fact in summary judgment motion
o Holding: SJ inappropriate in this case b/c D (moving party) failed to carry its
burden of showing the absence of any genuine issue of fact
o D had the burden of foreclosing the possibility that there was a policeman in
Kress store and that this policeman reached an understanding w/ Kress employee
Catrett v. Johns-Manville Sales Corp. (DC Cir. 1985)P files suit against several
corporations for wrongful death of her husband who worked for these companies and
died due to exposure to asbestos; District Court granted SJ to D b/c P failed to produce
evidence that D was the proximate cause of the injuries allegeddidnt prove that Ds
asbestos created Ps harm
o Issue: Whether SJ can be granted where the D does not produce any evidence of a
lack of genuine issue of material fact but only points to Ps failure to produce
o Holding: No, SJ should not have been granted b/c D did not produce any evidence
to support its motion for summary judgment
o Party moving for summary judgment carries the burden of proving the absence of
a material issue of fact even on issues where the other party would have the
burden of proof at trial
o Party opposing the SJ only bears the burden of responding after the moving party
has met its burden of coming forward w/ proof of the absence of any genuine
issues of material fact
o Directed Verdict and SJ are not the same thing where an unsupported SJ motion is
made by the party not having the burden of proof at trial
o Dissentwaste of Courts time to allow a case to go to trial when judge is going
to grant a DV
Celotex Corp. v. Catrett (1986)-- P files suit against several corporations for wrongful
death of her husband who worked for these companies and died due to exposure to
asbestos; District Court granted SJ to D b/c P failed to produce evidence that D was the

proximate cause of the injuries allegeddidnt prove that Ds asbestos created Ps harm;
Court of Appeals overturned SJ granted by DC
o Issue: If information derived through discovery indicates that the nonmoving
party cannot prove an essential element of her COA, must the MP still come
forward w/ evidence in the form of affidavits/other info to show the absence of
genuine issue of material fact w/in meaning of Rule 56(c)
o Holding: No b/c the burden on the moving party may be discharged by showing
that is, pointing out that there is an absence of evidence to support the nonmoving
partys case
o Summary judgment should be granted where nonmoving party has failed to make
a sufficient showing on an essential element of her case with respect to which she
has the burden of proof.
o Effectively overrules the decision in Adickes
o DissentIf the burden of persuasion at trial would be on the nonmoving party the
moving party may satisfy Rule 56s burden of production in either of two ways:
Submit affirmative evidence that negates an essential element of the
nonmoving partys claim
Demonstrate to the Court that the nonmoving partys evidence is
insufficient to establish an essential element of the nonmoving partys
HYPO: What if the moving party was the plaintiff in Celotex?
o Different standard--Moving Party with burden of proof must present enough
evidence that a jury would be required to find for the plaintiff
Arnstein v. Porter (1946)P accused noted songwriter of copyright infringement---P
alleged that D took several of his songs by having "stooges" follow him, live in the P's
apartment building, and break in to steal material---D denies having ever seen or heard
any of the P's compositions or having him followed; DC granted SJ to the D but Court of
Appeals overturned
o Issue: Whether the DC properly granted SJ to the D?
o Holding: No, b/c the similarity of the songs coupled with the access to the songs
on the radio is sufficient to get to a jury
o StandardCould a reasonable jury find for the non-moving party?
o Credibility of conflicting witnesses/parties is something to be left to the jury
o DissentSJ appropriate b/c the P provided no evidence whatsoever of Ds access
to his compositions
o NMP parties should be considered in its own terms---however, this is more of an
older traditional rule which is holding less and less weight
Realistically today, SJ motion where the MPs documentary evidence
dwarfs that of the NMP, then the judge is likely to consider it
Visser v. Packer Engineering Associates, Inc. (1991)--- Visser was part of a dissident group
within the Packer Engineering Associates; after part of the dissident group left and formed
their own group, Kenneth Packer demanded that Visser pledge his loyalty to Mr. Packer
himself; Visser refuses and Packer fires him a few months before Visser is eligible for his
pension; Visser filed suit against D for age discrimination; Packer included an affidavit that
provides reasons other than age that Visser was fired; Visser provided his own affidavit and
several affidavits for other dissenters; Packer files for SJ

o Issue: Did P do enough to defeat the SJ motion?

o Holding: No, there was no evidence that age or pension costs played a substantial,
or indeed any factor in the firing of Visser
o If Visser could show that age was a substantial factor, then the burden shifts to the
D (at which point summary judgment should not be granted)D would then carry
the burden of showing that age is not the but-for cause---if D didnt carry that
burden, then P could win by directed verdict
T/F Question---On summary judgment, the P-NMP is entitled to all reasonable inferences
that can be drawn from the evidence he presents in opposing the motion, but he may not
rely on the allegations in his complaint in resisting summary judgment. See FRCP 56(c).

Question 1: Has MP done


Question 2: Has NMP done

enough to survive SJ?

Would a reasonable jury have
to find for the MP in the
absence of any opposing
Could a reasonable jury find
for NMP?

Celotex; FRCP 56(c)(1)

Could a reasonable jury find

for NMP?

Judgment as a Matter of Law
Judgment as a Matter of Law (JML)used to be referred to as Directed Verdict and
Judgment Notwithstanding the Verdict (JNOV)
o Directed Verdictmotion made before the case is ever given to the jury
D can motion for DV after the P rests their case or at the close of all the
P can only motion for DV after all the evidence has been presented
Judges cannot technically direct a verdict w/o a motion on the part of the
parties---however, judge can hint strongly that a party should do so
o Judgment Notwithstanding the Verdict (JNOV)after the case is given to the
jury, the losing party will move for judgment and the judge can mandate a verdict
in their favor
o DV v. SJ
In summary judgment, unlike with directed verdict, the moving party must
make a showing as well. If the MP in a SJ hasnt done so, then the NMPs
failure to meet her burden of production shouldnt result in summary
FRCP 50if you want to make a motion for JNOV, you must have already made a motion
for directed verdict prior to the case going to the jury and the motion was denied
o Why would a judge ever deny DV and then grant JNOV after the jury deliberates?
Judge might be trying to give the jury the chance toget it right so that
the judge doesnt have to take the case from the jury
Important ReasonWhen you grant JNOV, the Court of Appeals can
overturn and mandate that the trial court enter judgment for the party

granted judgment by the jury---if you grant DV and the case is overturned
by the Court of Appeals, then there has to be an entirely new trial
Burden of Production v. Burden of Persuasion
o Burden of Productionwhen you meet your burden of production, the case can
get to the jury/survive summary judgment
o Burden of Persuasion (almost always the same party as the party w/ burden of
production)should be the party that loses if the jury feels like it is 50/50
Reid v. San Pedro, Los Angeles & Salt Lake RR (1911)P sued RR (D) to recover
damages for killing of Ps cow by the RR. The cow was in an enclosed fence near the RR
and got on to the tracks through either a broken fence or a gate left open. Cow found a
mile from the broken fence and near the gate. Utah law says that RR liable if the cow got
through hole in the fence but not through open gate. Jury found for the P. D appealed
o Issue: Was the evidence (which fails to show where and under what
circumstances the cow got on to the tracks )sufficient to support the verdict?
o Holding: Evidence was insufficient b/c P never proved beyond a reasonable doubt
that the cow got on the RR track via the Ds gate---based on the evidence, the cow
could have gone through either opening
o P failed to satisfy burden of production b/c there was no rational basis for the jury
to find in Ps favor based solely on the evidence P produced
Railroad v. Stout (1873)Child hurt while playing on a turntable owned by a RR
company; turntable was a little ways out of town but did not have a functioning latch to
prevent it from being turned; evidence showed that an employee had noticed children
playing on the turntable at a previous time; P sued D claiming negligence
o Issue: Was there sufficient evidence for a jury to find negligence on the part of the
RR company in the management or condition of its turntable?
o Holding: there was sufficient evidence for the jury to conclude that the turntable
was a dangerous machine which would likely cause injury to children who played
on it and that D had omitted the care and attention it ought to give and that this
negligence caused the injury to P
o Standard: If, upon any construction which the jury was authorized to put upon the
evidence, or by any inferences they were authorized to draw from it, the
conclusion of negligence can be justified, the defendant was not entitled to this
order, and the judgment cannot be disturbed
o Negligence is an evaluative fact and it has to go the jury---there are no material
facts to be disputed but still has to go to a jury
Not all mixed questions of law and fact (evaluative facts) are always
questions for the factfinder rather than the court---some such probable
cause or cruel and unusual punishment are decided by courts
sometimes and even a question of fact will be taken away from the
factfinder if no reasonable jury could find for one of the parties on that
o Jury determines the inferences that can be drawn from the undisputed facts
Difference b/t DV and JNOV from SJRule 50(a) motion raised at trial and decided based
testimony and evidence given at trial---SJ is made before trial and determined solely on the
basis of documentary evidence such as depos and affidavits

Judge will grant DV or JNOV over SJ for a couple of reasonsif the judge senses that the
case will turn on questions of fact that are not fully elucidated in the record, or purely the
desire to give the party the opportunity to present their evidence at trial before a decision is
made to withdraw the case from the jury

1. Res Judicata (Claim Preclusion)

Claim Preclusionforbids a party from litigating a claim that was, or could and should
have been raised, in former litigation
Goals of Claim Preclusion
o Efficiency
o Finality
o Avoidance of Inconsistency
Requirements for res judicata: (1) there must be a final judgment (2) the judgment must
be made on the merits; (3) claims must be the same in the 1st and 2nd suits; and (4) the
parties in the 2nd action must be the same as those in the 1st (or have been represented by
a party to the prior action
The Different Theories: Same Cause of Action vs. Same Transaction
What is the same claim---modern understanding is a claim that should have been brought
in the original lawsuit
o Most jurisdictions use the same transaction or occurrence testparty who has
asserted a right to relief out of a particular transaction or occurrence must join all
claims she has arising from it or the omitted claims will be barred by res judicata
o Preclusion turns on the right to join the claim in the original action, NOT on
whether the claim was actually asserted
Frier v. City of Vandalia (1985)P sues City of Vandalia (D) in state court seeking
replevin of his vehicles that have been towed b/c they were blocking a city street. Trial
court declined writ of replevin. P then sues in federal court under 1983 for violation of
DPC of 14th Amendment alleging that he was not offered a proper hearing by the City
and that it was the official policy of the city not to do so. District court dismissed
complaint for failure to state a claim (should have been an SJ b/c based on transcript of
the replevin case in State court)
o Issue: Was the 1983 action the same cause of action as the replevin action?
o Holding: Yes and therefore correct for the Federal claim to be dismissedP
attacked the same conduct in all of his suits
o 28 U.S.C. 1738law of Illinois governs the preclusive effect given to the
judgment in the replevin action
o Illinois applies traditional testCOAs are identical where the evidence necessary
to sustain a 2nd verdict would sustain the first---COAs are based upon a common
core of operative facts

o ConcurrenceIllinois law really focuses on whether the evidence is the same

(more traditional test) in the two COAsin this case, the evidence would be quite
differentstill reaches same result but through different analysis
Replevin actionmust show superior possessory rights
Due Processmust show that process was flawed
Full Faith and Creditboth 28 USC 1738 and Article IV Section I include a full faith
and credit provision which mandates that States recognize and uphold judgments by
other state courts
o 1738 is more clear that SAME full faith and credit must be given by Federal and
State courts to decisions made in other State courts
Seems to rule out giving the judgment greater effect as wellparty
against whom such greater preclusive effect were asserted might even
have a constitutional (due process) argument on the ground that he
litigated in the rendering court based on knowledge of what that courts
rules of preclusion were
o Although authority is debated, State courts must also apply Federal laws of
preclusion if the second claim is in State court

Identity of Parties: Privity and Representation

Basic Principle---every P has the privilege to bring your case; you are not obliged to join
litigation that is easy for you upon pain of having your own claim precluded at a later
Any party that is being sought to be barred from re-litigating an issue has to be present in
the original lawsuit
in privitysituation where it is possible for someone not formally named as a party to
be so closely connected to a suit that it is appropriate to treat her as if she were named
Searle Brothers v. Searle (1978)D sues her husband Woodey for divorce; Court awards
an entire piece of property known as the Slaugh House to the D even though Woodey
argued that the property was owned by a partnership consisting of Woodey and his sons;
Ps, the partnership, sued P for an undivided one-half interest in the property alleging that
the property was paid for w/ partnership funds. Trial Court determined that res judicata
and collateral estoppel barred the COA.
o Issue: Does the judgment in the 1st action bar Ps from litigating their claim against
the property in the present action on the grounds that Ps are in privity w/ Woodey
o Holding: No b/c the Ps interest is neither mutual nor successive and therefore not
in privity.
o Ps asserting their own independent separate partnership interest which arose
before the 1st action, co-owners of the property rather than successors, and agents
and principals do not have any mutual or successive relationship in property
o Dissentsons were sufficiently involved and interested in the divorce
proceedings to be considered in privityfully aware of the suit since they were
witnesses at the trialFather was managing partner of the partnership so he was
representing the partnerships interest during the first suit
Three broadly defined situations where a non-party may be bound to the results of a

o Substantive Legal RelationshipsIf the substantive law of the relationship treats

A as a substitute for B, B will be bound by the results of a lawsuit in which A
Ex. A owns land and B establishes a prescriptive easement on that land. C
buys As land. B still has an easement over Cs land
o Express Agreement to be bound by a decision to which one is not a party
Ex. A and B are injured in a collision w/ a car driven by Cboth A and B
bring separate lawsuits but A agrees to be bound by the courts
determination in B v. C
o Instances of procedural representation
Ex. Class Actions where the entire class is considered represented
Final Judgment and Judgment on the Merits
Final judgmentjudgment may be considered final even if an appeal is pending---but
some courts may require any appeals to be finished before RJ will apply
Judgment on the meritsDoes not include improper venue, lack of personal
jurisdiction, and party joinder dismissals
o 12(b)(6)Federal courts and some state courts consider this on the merits b/c a
P whose complaint is dismissed for failure to state a claim is allowed liberal
opportunities to amend
Some state courts dont bar relitigation in this case b/c little litigation
effort goes into these preliminary dismissals and therefore scarcity of
judicial resources not compromised
o P files suit but then doesnt pursue the case---barred from relitigating
o Default judgment---litigated on the merits and relitigation barred
Gargallo v. Merrill Lynch, Pierce etc. (1990)--- P brought counterclaim in previous suit
alleging that D caused the losses through negligence, misreps, and that D violated Fed
securities law. Even though lacked subject matter jurisdiction over the Federal securities
claim, Ohio court dismissed the counterclaim w/ prejudice b/c P failed to comply w/
discovery orders. P brings suit against D in Federal district court for violation of
securities law on the same transaction and District Court dismisses the case on ground of
res judicatal. P appeals
o Issue: Is a prior state court judgment upon a claim w/in the exclusive jurisdiction
of the federal courts a bar to a subsequent federal lawsuit involving the identical
cause of action?
o Holding: No , b/c Ohio State law would not give preclusive effect to a judgment
that is invalid due to lack of subject matter jurisdictionin this case, the Federal
courts have exclusive jurisdiction over Federal securities claims
o Under 28 U.S.C. 1738, Federal court does have to apply the States claim
preclusion law though---in this case, Ohio law would not grant preclusive effect
to the first case
2. Collateral Estoppel (Issue Preclusion)
Black letter of Issue Preclusion---When (1) an issue of fact or law is (2) actually litigated
and determined by (3) a valid and final judgment, and (4) the determination is essential to
the judgment, the determination is conclusive in a subsequent action b/t the parties

Common Law added 5th requirementthe party burdened w/ issue preclusion have had
an adequate opportunity, and incentive to litigate the issue in prior proceedings
Same Issueissues must be identical rather than just similar
o However, civil decisions cannot be used in criminal proceedings but decisions in
criminal cases can be used in civil decisions since the burden is higher in criminal
vs civil
Purpose of Issue Preclusion---application of the doctrine of issue preclusion represents a
decision that the needs of judicial finality and efficiency outweigh the possible gains of
fairness or accuracy from continued litigation of an issue that previously has been
considered by a competent tribunal

Actually Litigated and Determined

Must be presented to a judge or jury and
Is determined when its considered by the judge or jury
o An issue can be raised in a prior action but not be actually litigated
Illinois Central Gulf RR v. Parks (1979)P and his wife Bertha are injured in an
accident. Bertha sues for her injuries and wins. P sues for loss of consortium but loses. P
then sues same D for his own injuries. Trial court decided that the claim was not barred
by claim preclusion and that the prior action did not preclude Jessie on the issue of
contributory negligence
o Issue: Does res judicata or collateral estoppel bar Ps attempt to recover for his
own injuries?
o Holding:
Res judicataNo b/c different causes of action and Indiana must use the
older same evidence testunder STO probably claim preclusion
Collateral Estoppelimpossible to know whether the jury in the first case
decided for D b/c P did not sustain damages or b/c P was contributorily
negligent---therefore cannot say that the issue was actually litigated and
In re Sammy DailyCourt held that even though a prior case was decided based on a
Rule 37 sanction, the party deliberately avoided resolution of factual issues and had a
reasonable opportunity to defend himself on the merits but chose not to---issue was
therefore still precluded
Essential to the Judgment
Decision on the issue must have been necessary to the courts judgment
When an alternative ground for a decision existed in past litigations and you dont know
which ground the decision was on, then neither issue is preclusive on subsequent
litigation (Parks)
o Determination in the alternative may not have been as carefully or rigorously
considered as it would have if it had been necessary to the result and in that sense
has some characteristics of dicta
o Losing party, although entitled to appeal from both determinations, might be
dissuaded from doing so b/c of the likelihood that at least one of them would be
upheld and the other not even reached

Traditionally, the parties in the two suits had to be the same parties in order to use issue
preclusion (just like in claim preclusion)
Modern courts have relaxed this standardmany recognize the doctrine of non-mutuality
in issue preclusion
Defensive Use of Non-Mutual Collateral Estoppel
o Where a P loses on issue A and a new D pleads collateral estoppel to bar P from
re-litigating the same issue he lost to D1
o Increases Efficiencygives P a strong incentive to join all potential Ds in the 1st
action if possible
Offensive Use of Non-Mutual Collateral Estoppel
o Where a D loses on issue A and a new P pleads collateral estoppel to bar D from
re-litigating issue A
P2 waits until a cases is found against a D before bringing his case against
the same D and then seeks to bring finding in Case 1 in to preclude
hearing on the issue
In non-mutual preclusion situations, court must consider not only the basic
requirements for estoppel, but also add the additional factors set out by
Parklane to preclude re-litigation of findings from prior action in a new
suit involving a new party
o Can actually increase litigation
o Despite the differences between offensive and defensive uses, Courts dont see
this as a reason to limit it only to defensive
Parklane Hosiery Co v. Shore (1979)P sued D for issuing misleading and materially
false statements in connection with a merger; Prior to this trial, SEC brought a separate
actions alleging the same conduct and won declaratory judgment; P moved for partial SJ
as to the issues litigated in SEC action; DC denied the motion claiming 7th amendment
violation but Crt of Apps reversed
o Issue: whether a party who has had issues of fact adjudicated adversely to it in an
equitable action may be collaterally estopped from re-litigating the same issues
before a jury in subsequent legal action brought against it by a new party?
o Holding: Yes, b/c the P could not join the SEC action and Ds are not prejudiced
b/c they had every incentive to litigate in the first case and this case does not offer
any new procedural advantages
o General Rulejudge should not allow offensive nonmutual collateral estoppel
P could easily have joined in the earlier action
Application of collateral estoppel would be unfair to the D
B/c he lacked incentive to litigate in the first case
b/c the 2nd action provides procedural opportunities not available in
the 1st case
o General Rule---in most jurisdictions if there are inconsistent results in other
decisions, then issue preclusion will not be available even if all the other criteria
are satisfied
Issue Preclusion does not apply to the United States Government

o US gov appeals selectively the cases where important issues of law/fact are
present---issue preclusion would force the US govt to appeal everything
however, other large litigants face similar problems but are not afforded the same
o District courts decide issues of constitutional law and if issue preclusion applied,
these decisions would become precedent binding all court including SCOTUS
State Farm Fire & Casualty v. Century Home Components (1976)50 separate actions
filed against D to recover for losses in a fire; Question of Ds negligence tried four times
with one judgment for D and 2 for the plaintiffs; current Ps were not parties in previous
suits but want to use prior judgments against D to establish Ds negligence causing the
o Issue: Is it unfair to a D to apply nonmutual offensive collateral estoppel where
the determination of an issue in prior actions is basically inconsistent?
o Holding: Yes b/c would be unfair to the D to penalize D for losses in previous
cases and not reward D for wins in previous cases

Origins: Pennoyer v. Neff

Exercise of valid state court jurisdiction today must comport w/ the DPC of 14th
Amendment which means it must comport w/ fair play and substantial justice
In personam jurisdiction---judicial power over a natural person, corporation, or
unincorporated association
o Basic Litigation of A v. B that occurs regularly in civil litigation
Quasi in rem and in rem jurisdictionjudicial power concerning property
o Quasi in rem jurisdictionPlaintiff attaches, or seizes, the Ds property in order
to satisfy a prior personal claim that the P has against the D
Type 1: Dispute over property itself (property is the basis of litigation)
Not a proceeding against all of the world
Have to adequately notify all people who may have a right
Ex. Quiet title proceeding (who the property belongs to)
Type 2: Attachment
Not about the property, property is just seized as a way of getting
litigation started
Property is merely a method to encourage a D to come and litigate
o True in rem jurisdictionaction against a piece of propertya way of
adjudicating rights against all the world
P seizes the Ds property in order to satisfy an interest in the property
(title, possession) that the P claims in the property
Pennoyer v. Neff (1877)
o First Case in personam: Mitchell sues P in Oregon state court to recover attorney
fees; P does not make an appearance in the action and is a nonresident of Oregon
and was not physically present in Oregon at the time of service. Service made by
publication in newspaper; Default judgment against P

o Second Case quasi in rem: Mitchell obtained writ of execution ordering Oregon
sheriff to sell Ps Oregon property to pay off his debt to Mitchell---Pennoyer
obtains title to Ps property by purchasing from the sheriff
o Final Case is in rem: P sued D in Fed Crt (diversity) claiming that he was rightful
owner of the propertyFederal trial ruled in favor of P holding that the affidavits
in the quasi in rem proceeding was defective
o Issue: Did the Oregon state court have valid in personam jurisdiction over P in the
first Mitchell v. Neff proceeding?
o Holding: Oregon state court did not have valid in personam jurisdiction b/c Court
may only enter judgment against a nonresident if the party (1)is personally served
with process while w/in the State or (2) has property w/in the state and that
property is attached before litigation begins
o Two possible sufficient and necessary conditions for establishing PJ
Presence in the Statemeans being in the State not necessarily having a
home or living there (not domicile)
Property in the State and the basis of Case A is about seizure of that
property but if this is the basis then any judgment that is ultimately
rendered can be for no more than the value of the property
o Common law rule allows a court to exercise jurisdiction over a person
temporarily present in the State---Court validated this idea recently in Burnham v.
Superior Court
Minimum Contacts and Its Discontents
Problems w/ Pennoyer
o New modes of transportation and communications made rule hard to apply
o Rise of corporations also made it difficult to apply this test
Important Aspects of the Minimum Contacts Test
o Applies to individuals as well as corporations
o Limitations on personal jurisdiction found in long-arm statutes are distinct from
the Constitutional limit imposed by the minimum contacts test
o Clear that a D may have sufficient contacts w/ a state to support minimum
contacts jurisdiction there even though she did not act w/in the state
o Minimum contacts analysis focuses on the time when the D acted, not the time of
the lawsuit
Milliken v. Meyer (1940)Two partners sued each other; D had been resident of
Wyoming but was at the time of the suit served personally in ColoradoMeyer did not
appear in Wyoming and the Court rendered judgment against himMeyer attacked the
judgment collaterally
o SCOTUS held that the judgment was valid b/c domicile in the State is alone
sufficient to bring an absent D w/in the reach of the states jurisdiction for
purposes of personal jurisdiction
International Shoe Co. v. Washington (1945)State of Washington (P) sued
International Shoe (D), a Delaware corporation with principal place of business in
Missouri; Suit to recover unpaid unemployment compensation contributions; suit took
place in Washington; D had dozen employees in Washington but staff could not make Ks
or gather collection nor did he have an office or store merchandise in Washington

o Issue: Is it permissible under the 14th Amendment for a Washington court to

exercise personal jurisdiction over D on the basis of Ds activity w/in the state,
where Ps lawsuit is limited to the recovery of unpaid contributions to the state
unemployment compensation fund?
o Holding: Yes, b/c D maintained minimum contacts with the State of
o Contacts were systematic and continuous and accorded D benefits and protections
of the laws of Washington State
o STANDARD: due process requires only that in order to subject a D to a judgment
in personam, if he be not present w/in the territory of the forum, he have certain
minimum contacts w/it such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice
General vs. Specific Jurisdiction
o General Jurisdiction---D has such a substantial contact w/ the forum state to make
it fair to assert jurisdiction even over claims unrelated to those contacts
o Specific Jurisdictionshort of general jurisdiction and only allows jurisdiction in
certain cases---jurisdiction exists for the specific claim in question but not
necessarily for other claims
Ex. Driver is travelling through Missouri for the first time and hits a
pedestrian---injured victim can bring suit for her injuries against the
Driver but only for that specific issue
Ds may consent to personal jurisdiction even if you could have won a case contesting
that jurisdiction---if you show up and litigate, then you waive your claim that the forum
state lacks personal jurisdiction
o Collateral attack on a previous case based on lack of PJ could probably only occur
when the 1st case was a default judgment
McGee v. International Life Insurance Co. (1957)Beneficiary of Franklin (D) sued out
of state insurance company D for nonpayment after Franklin diedFranklin was resident
of California and mailed his premium payments to D in Texas; D also mailed a notice of
the insurance plan to P in California
o Issue: Can the forum state exercise PJ over D on a claim related to the insurance
o Holding: Yes, b/c the D had sufficient contact with the state through the insurance
K since delivered in California, premiums mailed from Cali, and insured was a
resident of Cali
Hanson v. Denckla (1958)Donner creates a trust in Delaware bank while Donner is
living in Pennsylvania; Donner moves to Florida and dies there where her will is
probated; Donners relatives file suit in Florida claiming an interest in the trust property
against Delaware trust company (D)
o Issue: Was Floridas exercise of in personam jurisdiction over the Delaware trust
company constitutionally valid?
o Holding: No, b/c the Delaware trust did not purposefully avail itself of the laws of
Floridano purposeful contacts with Florida and received no benefits from
Florida law
o Distinguished from McGee

Trustee received order but no benefits from the forum state whereas
insurance company received premiums from forum state
Forum state in this case had no special interest in litigating the lawsuit
whereas the forum state in McGee had a special interest in providing a
convenient forum for its citizen injured by a nonresident engaged in
activity that the state treats as exceptional and subject to special litigation
Shaffer v. Heitner (1977)P files suit against officers of a Delaware corporation w/
principal place of business in Arizona; alleged activities all took place in Oregon; P files
motion for an order of sequestration of the Delaware property (stocks) of the Ds (quasi in
rem type 2 jurisdiction); Ds appeal the order claiming lack of PJ
o Issue: Does the International Shoe test of fair play and substantial justice apply to
assertions of quasi in rem jurisdiction
o Holding: Yes, International Shoes test applies but the Ds only contact with
Delaware is the stock and there are not enough contacts b/t the Ds, the forum
state, and the underlying litigation to satisfy minimum contacts and
reasonableness for the type of litigation before the court
World-Wide Volkswagen Corp. v. Woodson (1980)Ps purchase an Audi from D
Seaway in NY---drive to Arizona but on the way they get into an accident in Oklahoma;
bring products liability suit in Oklahoma against several Ds; Seaway (retail dealer) and
World Wide Volkswagen (regional distributor) contest personal jurisdiction
o Issue: Whether an Oklahoma court may exercise in personam jurisdiction over a
nonresident automobile retailer and its wholesale distributor in a products-liability
actions, when the Ds only connection w/ Oklahoma is the fact that an automobile
sold in NY to NY residents became involved in an accident in Oklahoma?
o Holding: No, b/c there are not sufficient minimum contacts with the forum state
o Ds have no activity in the forum State and do not avail themselves of the
privileges of the State
o Foreseeability alone is not sufficient to establish minimum contactsalthough
can play a role as far as whether D should reasonably foresee that he would be
haled into court in that State
o Brennan Dissentopinion underappreciates the States interest in the case and
does not explore inconvenience to the D
D could not realistically believe that their products would stay w/in a
limited geographic space
Burger King v. Rudzewicz (1985)D, along w/ a partner bought a BK franchise by
applying at a Michigan office and then engaging in negotiations w/office in Miami and
Michigan; Ds partner attended training session in Miami and K included clause that said
Florida law would be applied; D and partner failed to pay rent and BK sued in Federal
district court in Florida; D challenged PJ
o Issue: Did District Courts exercise of PJ over Ds offend due Process?
o Holding: No, DCs exercise of PJ was appropriate in this case
o D reached out to negotiate w/ Florida Corp, agreed to long-term K w/ Florida
corp, made payments to Florida corp etc---therefore minimum contacts
o Once you establish that D purposefully establish minimum contacts, then consider
contacts in light of other factors to determine whether they comport with fair
play and substantial justice

Burden on D
Forum States interest in adjudicating
Interstate judicial systems interest in obtaining the most efficient
Shared interest of the several states in furthering fundamental substantive
social policies
o Temporary victory for Brennan in his effort to expand the considerations in PJ
Burnham v. Superior CourtDuring divorce dispute, D travelled to CA from NJ for
business and then visited his children in north CA; During visit, D is served with CA
court summons by his wife regarding the pending divorce
o Issue: Is it consistent w/ due process for CA to exercise PJ over a nonresident who
was personally served w/ process while temporarily w/in CA for a claim that is
unrelated to his in-state activities (i.e. is transient jurisdiction constitutional?)
o Holding (plurality): Yes but for different reasons
4 Justicestransient jurisdiction comport w/ traditional notions of fair
play and substantial justice b/c it has been consistently upheld since the
19th century and is supported by consensus of state courts
4 Justicestransient jurisdiction passes the fairness test b/c it satisfies
both the minimum contacts test and reasonableness subtests
D avails himself of the States benefits such as health and safety
Modern transportation/communication makes it less inconvenient
for Ds
o Two different approaches
Scaliafor in-state service, Pennoyer idea still rulesfor cases of in-state
service, no worry about specific vs. general jurisdiction due to the power
of the State to exert jurisdiction over those in the State
Brennanminimum contacts should be the standard for individuals in the
State too---very much relying on quid quo pro idea
Gap in reasoning of Brennansince this case did not arise out of
the contact with California, then there must be General Jurisdiction
for Mr. Burnham?
Different Considerations used in these Cases
o Foreseeability
o Purposeful availment (BK, not in WWW)
o Quid pro Quo (getting benefits from the forum state)(I-Shoe, Brennan in
o Stream of commerce (WWW)