PART I: JURISDICTION

PERSONAL JURISDICTION: Can P sue D in this state?

FR 12(b): How to present defenses every defense to a claim for relief must
be asserted in the responsive pleading if one is required. Party may assert...
(2) lack of personal jurisdiction

FR 12(h): Waiving and preserving certain defenses

(1) When Some Are Waived. A party waves its defenses listed in rule 12(b)(5)
by
(A) Omitting it from a motion or (B) Failing to either
(i) Make it by motion under the rule or
(ii) Include it in a responsive pleading, or in an amendment allowed as a
matter of course
(2) When to Raise Others. Failure to state a claim upon which relief can be
granted, to join a person required by Rule 19(b), or to state a legal defense to
a claim may be raised
(A) in any pleading allowed under Rule 7(a) (B) by a motion under Rule 12(c);
or
(c) at trial
(3) Lack of Subject Matter Jurisdiction. If the court determines at any time
that it lacks SMJ, the court
must dismiss the action.
FR 4(k)(1)A: Territorial Limits of Effective Service
Federal court has same jurisdictional power as a state court in the state
where the federal court sits.
1i. In personam: Power over D himself because of contacts with the forum;
personal service of process
ii. In rem: Power over Ds property. When claim to the property itself is the
source of the underlying
issue, the state will usually have jurisdiction (D owns property in the state at
the time of lawsuit)
1. Max liability is the value of the property
iii. Quasi in rem: Property which now serves for the basis for state court
jurisdiction is completely unrelated to the plaintiffs cause of action
1. Quasi would use the attachment of property to get jurisdiction for a claim
unrelated to the land; Property needs to be seized at the outset of the suit
International Shoe standard of minimum contacts must apply to all three
forms of jurisdiction so as not to offend fair play and substantial justice
i. Shaffer v. Heitner: Heitner sequesters stocks to get directors of company
into DE (quasi in rem); Property was not the subject matter of the litigation,
therefore did not support states jurisdiction (Essentially does away with quasi
in rem)
III. IMPLEMENTING PERSONAL JURISDICTION
a. State long-arm statutes
i. How states authorize their courts to exercise constitutional authority to
extend jurisdiction to out-

of-staters
1. Looking at long arm statute is the first logical step in analyzing specific
personal jurisdiction
problem (no basis to exercise PJ over non-resident otherwise)
b. FR 4(k)(1)(A) Federal personal jurisdiction: Look to and borrows state long
arm statute
i. Comes with all the limits that apply in state courts including 14th
Amendment requirement of minimum contacts
1. FR 4(k)(2): Possibility of minimum contacts from contacts with U.S. rather
than with state (but unusual) Only for federal question cases
ii. FR 4(k)(1)(B) Bulge rule: Provides personal jurisdiction over party joined
under FR 14 or 19 who is served within 100 miles from where summons was
issued
iii. Cant be used to start an action only to add parties to one already
properly brought
iv. Federal statute: Nationwide service authorized by federal statute; Doesnt
come up much because
hardly any statutes include provision for nationwide service (Exception:
Statutory interpleader)
IV. WHERE CAN A SUIT BE BROUGHT?
A. Can always be sued in:
a. Residence or domicile for individuals
b. State of incorporation AND primary state of business for a corporation
B. 2 Prong Test for forum: (1) Minimum Contacts, THEN (2) does not
violate fair play and substantial justice
(International Shoe Test)
1. MINIMUM CONTACTS
i.

Established minimum contacts with the state that it would be fair to require
them to return and defend a suit; limited to claims arising from (or, perhaps,
related to) Ds contacts with the forum state
Depends on the quality and nature, cannot be casual or isolated
Specific Jurisdiction: Isolated contacts, but are directly related to the cause
of action. D can only be sued for actions relating to contact with the forum
a. Purposeful Availment (rationale of International Shoe): Corporations that
act in a state accept a reciprocal duty to answer for its in-state activities in
the local courts; have reasonable anticipation they may have to defend a suit
in that state, not just that products reach that state
b. Single acts, because of their quality and nature, can be sufficient for
specific jurisdiction
i. Parties that conduct activities in a state accept the risk that those activities
will give rise to
suits, and understand that they may have to return or go to the state where
the activity
was conducted or had effect to defend such suits
ii. McGee v. International Life Insurance Co: CA resident paid with TX life
insurance until
death, sues company for breach of contract 2
Contact only through mail, no insurance agent in CA BUT purposeful

availment because the company had solicited business

c. Consumer movement insufficient
i.

ii.

World-Wide Volkswagen Corp v. Woodson: Products liability action in OK

against distributor (NY) and retailer (NY)
No purposeful availment WWV did not seek out OK market, car was moved
there (unilateral act of third party)
Contact was isolated and casual. Foreseeability is not a valid test
Not fair to have Ds defend a case in OK; OK did not have jurisdiction to hear
case
Hanson v. Denckla: Trust formed in DE, PA woman moves to FL No purposeful
availment Bank did not reach out to FL
FL did not have jurisdiction to hear case
d. Stream of Commerce test: likely requires significant quantity of goods.
Know or should have known the product would reach the market, and would
benefit from such sales
i. J. McInytre Machinery, Ltd. V. Nicastro: Nicastro (NJ) injured hand in a
machine manufactured by JMM (UK), sued in NJ
No purposeful availment Stream of commerce test was not strong
enough:
Isolated contact
The majority is split in their reasoning, so application of this case is limited
o Kennedy adopts OConnors views from Asahi saying more than mere
foreseeability is required and intent to reach needs to be shown
o Breyer doesnt take a stance
o Ginsburg (dissent) would have upheld jurisdiction following Brennans
approach in Asahi, saying that JMM targeted U.S. market
ii. Asahi: Taiwanese D who was suing a Japanese third-party defendant in CA
No jurisdiction despite contacts, because failed the fairness factors from
WWV
Foreseeability is a valid test (seemingly overruled in Nicastro)
o Brennan says contact if D put product into the stream and reasonably
anticipated that it will reach the state
o OConnor argues that you need Brennan + intent to reach the state
Need to target that market through design, advertisement, etc.
e. If only contact is signing a contract, specific jurisdiction (BK)
ii. General Jurisdiction: Continuous and substantial contacts. D can be sued
for any cause of action in a
state regardless of where the claim occurred
a. Individuals: (a) state of residence; (b) Any state where individual is
physically present and
served; (c) state where contacts are systematic and continuous
b. Corporation: (a) State of incorporation; (b) primary place of business

(nucleus of officers, etc);

(c) any state where contacts are systematic and continuous
i. Beyond paradigm forms: Corporations activities need to be such that it can
fairly be at
home in the forum
1. Perkins v. Benguet Consolidated Mining Co.: Philippine corporation
displaced,
were in Ohio for a long time, so at home in Ohio
c. General jurisdiction is not satisfied by the stream of commerce test even if
contacts are
systematic and continuous
i. Daimler AG v. Bauman: Language from IS is misapplied by lower courts to
find beyondparadigm general jurisdiction, but it really only applies to specific jurisdiction
ii. Goodyear Dunlop Tires v. Brows: Defective tires killed 2 kids in bus crash in
Paris, D sues
in NC state court; Foreign subsidiaries of a US corporation are not amenable
to suit in state court on claims unrelated to their activity in the forum state
Ties so continuous that D is essentially at home
No minimum contacts, no purposeful availment, violates notions of FP&SJ

d. Transient jurisdiction likely sufficient; Presence in the forum when served

gives general jurisdiction
i. Burnham v. Superior Court: Mr. B is out of state resident (NJ) served by Mrs.
B (resident) in CA for a suit unrelated to his activities in CA
No Due Process violation General jurisdiction was valid
The majority is split in their reasoning, so application of this case is limited
o Scalia says Pennoyer framework suitable (historical pedigree)
o Brennan argues for Intl. Shoe application in all cases e. Citizen of a state
(Presence + Intent)
i.

Burger King Corp. v. Rudzewicz: BK (FL) sues franchisee (MI)

Purposeful availment: No physical ties to FL, but deliberately reached beyond
MI and signed a contract with FL corporation (therefore gaining the benefits
of FL law)
Contacts are very minimal, but quality of relationship cannot be seen as
random
Held inconvenience must amount to a severe disadvantage, and that
relative wealth of parties does not matter (Nearly impossible to prove
inconvenience under this standard)
i.

Milliken v. Meyer: P sues D in WY after personal service in CO

Due process met: served in personam and met minimum contacts
You can serve people out of state in personam for claims arising from the
forum state

f. Purchases in forum state (even regular purchases) are not enough to

warrant a states assertion of general jurisdiction if cause of action is not
related to purchases (Helicopteros)
2. FAIR PLAY and SUBSTANTIAL JUSTICE
a. If contacts are purposeful, there must be a compelling case that
jurisdiction is unreasonable
b. Factors of fairness
i. Forum states interest in adjudicating the dispute (McGee)
1. State has an interest in providing a forum/protecting citizens
a. State wants its law to apply in the state, incident arose in the state 2. Ps
interest in obtaining convenient & effective relief
a. EX: Piper foreign Ps, TF weak interest
3. Interstate judicial systems interest in obtaining the most effective
resolution &
furthering fundamental substantive social policies a. Location of witnesses,
evidence
4. Inconvenience to plaintiff
c. Fairness may allow for jurisdiction even if contacts are minimal
3. Challenging Plaintiffs Forum Selection
a. FR 12 motion: within 20 days of personal service, can bring either in preanswer motion or answer:
i. FR 12(b)(1) SMJ challenge
ii. FR 12(b)(2) PJ challenge
iii. FR 12(b)(3) Venue challenge
iv. FR 12(b)(4) Insufficient process (something actually wrong with
summons/complaint)
v. FR 12(b)(5) Insufficient service challenge (something wrong with delivery)
vi. FR 12(b)(6) Failure to State a Claim challenge
vii. FR 12(b)(7) Failure to Join an Indispensable Party
b. FR 12(h):
i. Defenses under FR 12(b)(2)-(5) must be put in your first Rule 12 response
(answer or motion) or else they are waived
ii. Defenses under FR 12(b)(6) and (7) can be raised at any time
iii. 12(b)(1) can be raised any timeyou cannot waive lack of SMJ and court
can bring it up on its
own
c. Direct Attack: Motion to dismiss for lack of jurisdictionFR 12(b)(1)-(2)
i. Making a FR 12(b)(2) motion does not subject the D to the PJ he is
protesting (special appearance rulenot used in fed court)
ii. Can never waive SMJ jurisdiction but can waive PJ if not raised with other
motions or answer 4
PJ POLICY
iii. If objection to jurisdiction is denied, D can defend on the merits without
waiving right to appeal on jurisdiction ruling
1. Federal courts generally do not allow interlocutory appeal on personal
jurisdiction d. Collateral Attack
i. Art IV 1: Full Faith and Credit Clause requires one state to recognize and
enforce judgments of another state
1. Ds property or wages in State 2 may be seized to satisfy a judgment in
State 1

ii. Default: If D defaults (does not respond to complaint) in an action in State

1, he may collaterally
attack default judgment by claiming in State 2 (when D is sued to recover for
judgment from State 1) that State 1 lacked PJ or SMJ
1. If the court finds jurisdiction in State 1 was proper, D has waived right to
defend on the merits.
2. If court finds jurisdiction in State 1 was improper, judgment is rescinded
3. If D argues PJ or SMJ in State 1 and loses (there is a judgment on the issue),
then barred
by issue preclusion from collateral attacking in State 2
iii. Collateral attack: D does not enter the case at all but allows a default
judgment to be entered
against them or their property, then attacks the jurisdiction of the court that
entered the default judgment
1. IF YOU LOSE default judgment stands without the opportunity to try on
the merits (dangerous tactic)
1. Power and notice (due process)
a. Power: have valid legal authority based on fairness
b. Notice: need constitutionally adequate legal notice
i. Fifth Amendment for federal courts exercise of personal jurisdiction
1. FR 4(k)(1) tells federal judges to look at Fourteenth Amendment to apply
the limits on PJ
that would apply in the local state court
ii. Fourteenth Amendment for state courts exercise of personal jurisdiction
2. Minimum Contacts
a. Because the courts power to exercise jurisdiction derives from Ds
voluntary relation to the state, the
power should be limited to cases arising out of that relation 3. No
interlocutory appeal for PJ
a. +: Avoid a lengthy delay to process the appeal in case appellate court
affirms the trial courts decision
b. -: May litigate a case that will end up being nullified

V.
NOTICE: Summons (symbol of courts power, signed by the clerk, says
whats needed to avoid default) + Copy of Complaint (gives you notice) =
Service of Process
Rule 4(a): Contents of the summons 4(c)(2): Who must serve D
Any person who is over 18 years of age and NOT a party to the action
4(d): Waiver of service Requires 2 waiver forms plus a self-addressed,
stamped envelope
Waiver of notice as alternative to notice (More time to answer and save you
serving costs = carrot and stick) Have 30 days to respond to request for
waiver
If you waive, get 60 days to answer instead of 21 days
Waiving service doesnt mean you consent to jurisdiction. Can still raise a
12(b)(2)
If waiver not obtained, multiple forms of notice provided If not waived;
service required and D pays for it
a. As specified by federal statue, international treaty, or state statute

b. By personal service of private process server

c. By federal marshal as last resort
4(e)(1): Service can follow the rules of the state where D is being served or
state D is being sued in (works for both individuals and corporations)
4(e)(2): Serving an individual
Personal delivery to D
Leave copy at Ds dwelling or usual place of abode with a person of suitable
age and discretion residing therein
Delivery to an agent appointed by D to receive service of process on Ds
behalf
4(f)(3): Special serving rules; Must meet reasonableness test
Email service of summons and complaint typically limited to foreign D (Rio)
4(h)(1): Serving a corporation in the U.S. (outside the U.S. is 4(h)(2))
Personal delivery to an officer, managing or general agent of D, or to an
agent authorized to receive service of
process
4(k)(1): Territorial limits of effective service
Service or waiver establishes jurisdiction over defendants subject to personal
jurisdiction in the first place 4(m): Service must be made within 120 days of
filing the complaint, or the action may be dismissed

A. B.
VI.
Look at statute language. Classic example: committed tort in state
negligent act was in a different state, so no v. look at where the injury/tort
occurred, so yes (Gray v. American Radiator)
Due process of law under the 14th Amendment guarantees parties the
basic right to notice of a courts intention to adjudicate their rights and an
opportunity for those parties to be heard before the court proceeds to do so
Mullane v. Central Hanover Bank: Trust owners were served constructively
(newspaper)

This was inadequate to afford due process

Mullane test for notice: Requirement of due process in any proceeding is
notice reasonable calculated to
apprise interested parties of the action and afford them an opportunity to
present their objections o Consistent with minimum contacts of IS
VENUE: Which federal district do you go to?
Long arm statutes: Going after a non-resident D for something they did in the
state; Limits where states have jurisdiction, within the realm of constitution
1391 (Federal Venue Generally)
1404 (Change of Venue): Can move cases around freely within the federal
court system in the interest of justice 1406 (Cure or Waiver of Defects):

Courts have the right to dismiss/transfer cases

1607 (Multidistrict Litigation): courts can consolidate similar cases in the
same district 1431 (Transfer to cure Want of Jurisdiction): No jurisdiction but
proper venue

a.
Basic Guidelines: Diversity [1391(a)] and Federal Question [1391(b)]
Venue is proper in a district if all the Ds are domiciled in the same district
a. Citizens and corporations reside anywhere they would be subject to PJ for
this case Venue is proper:
a. 1391(b)(1) In a district that any D lives if all the Ds live in the same
state
b. 1391(b)(2) In a district where a substantial part of the claim arose
c. Aliens can be sued anywhere (limited by PJ laws)
d. If no other venue is appropriate:
i. 1391(a)(3): Diversity cases venue proper in a district where any D is
subject to PJ
ii. 1391(b)(3): Federal Question venue is proper in a district where any D is
found (lower
threshold than diversity)
e. Dee-K Enterprises, Inc. v. Heveafil Sdn. Bhd. (E.D. VA, 1997)
Antitrust action (intl. conspiracy to restrain trade) brought in East district of
VA against indo rubber company
PJ met: U.S. sales agents and customized for US products
Venue depends on where D transacts business (wants case moved to W.D. of
VA)
Because foreign, can be sued anywhere [1391(d)]
Transfer of Venue: Moving from one district to another district within the
federal system
a. D or P can transfer to a district that 1) is a proper venue AND 2) has
personal jurisdiction over the Ds
cannot waive either of these two requirements
b. 1404(a): Can transfer freely between federal courts
i. May be more convenient for witnesses/evidence look to public and private
factors c. 1406(a): Original court is improper
i. Transfer in the interest of justice OR dismiss for improper venue
d. 1406(b): If you dont object to a venue, it can hear your case
e. 1407: allows federal courts to transfer similar cases for consolidation of
pre-trial proceedings
(efficiency)
f. 1631: Venue is proper, but jurisdiction is lacking courts can transfer to a
venue with proper
jurisdiction (avoid SOL issues)
g. After transfer from proper federal forum to another proper federal forum in
another state, court has to
apply law of state that would have applied had there not been a change of
venue (Van Dusen)
i. Trying to eliminate forum shopping
ii. But in case of transfer, law of proper forum governs: Dont get law from the
wrong forum

h. If not proper in district court (because of wrong venue or no jurisdiction),

then court can dismiss or
transfer to another federal forum ( 1406(a))
Forum Non Conveniens: Court can decline jurisdiction (even if it has it),
because there is a different court that is more convenient (appropriate)
Results in dismissal because unable to transfer between judicial systems
a. Original venue must be proper, but other court is adequate and available
b. Only D can file for FNC
c. Helpful when:
i. Cannot transfer state court to state court so forum is helpful
ii. When better forum is a foreign country
iii. Moving from federal back to state (Removal under 1404 is a one-way
street)
d. If motion is granted, burden on P to refile
e. Piper Aircraft v. Reyno: P (Scottish citizens represented by a US law firm)
commenced wrongful death
action in PA for 5 people who died in plane crash in Scotland
P may not defeat a motion to dismiss on grounds of forum non conveniens
merely by showing
that the laws in an alternative forum is less favorable (esp. because they are
foreign no home forum)
b.
i. ii.
c.

I.
SUBJECT MATTER JURISDICTION: Can a claim be brought in state or
federal court? a. Concurrent Jurisdiction: Federal and state courts share lots of
jurisdiction
i. Claims arising under federal law can be brought in either state or federal
court UNLESS federal court has exclusive jurisdiction (e.g.: securities fraud,
patents)
b. Exclusive Jurisdiction: Congress has created statutes requiring that certain
laws be brought in the exclusive forum of the federal or state courts
i. Federal: bankruptcy, antitrust cases
ii. State: divorces, custody suits
c. 12(b)(1): Dismiss for lack of jurisdiction
d. Class Action Fairness Act: allows removal of class actions (group of people
suing a corporation) to
federal court if:
i. Minimal Diversity: ANY member of the class is a citizen of a different
state that the defendant
1. EX: P (100 from CA, 1 from NY) sue CA D (minimal diversity met)
2. Before: Defendant would just include one plaintiff from same state and it
would
eliminate diversity jurisdiction
ii. Amount in Controversy requirement: Excess of $5 million
FEDERAL QUESTION JURISDICTION: Is P enforcing a federal right?
Claim must arise under federal law (either statute or constitutional claim)
i. Well-pleaded complaint only look at claim itself to see if there is a federal

question, NOT the

anticipated constitutional defense or counterclaim
1. Courts have interpreted 1331 to mean that federal courts do not have
jurisdiction unless
the federal issue is necessary for the plaintiffs claim
ii. Louisville & Nashville Railroad v. Mottley: Congress passed law that made
free train passes illegal,
but Mottley had lifetime passes because of settlement with the railroad for a
previous suit
1. Federal court didnt have jurisdiction because an issue arising under
federal law was not
included in the complaint (apart from the anticipated defense) actual issue
was breach of
contract
2. A federal right must be infringed upon
iii. Policy: Sorting cases at the start of the lawsuit before anyone invests too
much time
iv. Failure to prove a federal claim does not mean that P failed to assert a
claim sufficient to give the
federal court arising under jurisdiction
DIVERSITY JURISDICTION
a. The district courts shall have original jurisdiction of all civil actions where
the matter in controversy exceeds the sum or value of $75,000 and is
between

SUBJECT MATTER JURISDICTION: Can the court hear

this kind of case/claim?
Article III, 1: Authorizes congress to establish lower federal courts, gives
judges lifetime tenure
Article III, 2: Limits federal courts jurisdiction to the list set forth (in this
section) cases not listed cannot be heard in federal court (Court of limited
jurisdiction)
I.
II.
a.
28 USC 1331 (Federal Question Jurisdiction): Gives district courts jurisdiction
over cases arising under the Constitution, statutes, or treatises of the
federal government
28 USC 1332
(a)(1): Creates federal jurisdiction over controversies between citizens of
different states and foreign citizens (Codifies Article III, 2)
(c)(1): Corporations are citizens in the state of incorporation and at the
principle place of business

i. Citizens of different states;

ii. Citizens of a state and citizens or subjects of a foreign state 28 U.S.C.
1332
Amount in controversy: Aggregation of claims by a single P against a
single D is allowed
o Not allowed to add extra parties to reach limit

o Exception: Joint-claim uses the total value of the claim, in which case the
number of parties is
irrelevant
b. Citizens of different states: Complete diversity required
i. No diversity if ANY of the Ps are a citizen of the same state as ANY of the
Ds c. Determining Citizenship
i. U.S. Citizens: Has one domicile, subject to SMJ in at least one state
1. Presence in the state
2. Intent to remain/make a permanent home
a. If born in CA and move to NY, then ID, then MS but never desire to remain
in
any of those places, your domicile is still CA even if you havent actually lived
there for a long time
3. Hawkins v. Master Farms (Kan., 2003)
Terrible car crash, husband died, D (KS)
P lived in KS, but had MO paycheck, license, etc.
Court determined Hawkins was domiciled in KS, therefore not DC
Diversity for SMJ of a party may be established by intent to remain in a
state
indefinitely
ii. Corporations: Maximum of two states
1. State where business in incorporated AND principle place of business
(where management meets and conducts business)
2. Hertz Corp. v. Friend: Corporations citizenship is the forum where the
highest level of officers direct, control, and coordinate the corporations
activities (Nerve Center)
NOT where corporation makes the most money
iii. Un-incorporated Businesses: Citizenship of up to all 50 states
1. Use the citizenship of all members; Citizenship in all states its members
are citizens
iv. Foreign citizen [28 USC 1332(a)]: Alien in the U.S. with permanent
residence is deemed a citizen of the state in which he is domiciled
1. Render v. Sanders: P is U.S. citizen, cannot claim diversity as a resident of
a foreign state
He is still a US citizen and therefore technically domiciled in a state
12(b)(1): Case dismissed for lack of jurisdiction
NOTE: Why federal court?
Court Shopping: federal courts are better funded, process cases faster,
maybe more sympathetic, less
likely to impose bias, etc.
III. SUPPLEMENTAL JURISDICTION Only applies to additional claims once
in federal court
a. Claim must have original federal question OR complete diversity
jurisdiction
i. A statute that gave federal courts jurisdiction to decide a case based
entirely on state law
between two citizens of the same state that would be unconstitutional under
Article III, 2
ii. All other state claims must then arise out of a common nucleus of
operative facts (so they

can be tried fairly in one proceeding) (United Mine Workers v. Gibbs)

1. Same facts prove both claims
iii. Must add if a resolution of one claim would impact the other claim b.
Applies to original Ds counter claims and cross claims
i. FR 18 Joinders; FR 21 Interpleaders c. Courts can decline supplemental
jurisdiction when: 1367(c)
28 USC 1367: When a federal court has proper original jurisdiction over a
claim, it may hear all other claims that form part of the same case or
controversy Codifies the Gibbs Decision
(c): Courts can decline supplemental jurisdiction
i. State law predominates

ii. Sensitive or novel issue to the state

iii. More impact on state then federal
iv. Judicial economy and fairness to litigants
v. Whether hearing the claims together might confuse the jury
vi. Whether the federal issues are resolved early in the case, leaving only a
state law claim for
decision
d. Ameriquest Mortgage Co. Lending Practice Litigation: D moves to dismiss
part of Ps claim under 12(b)(1)
i. Courts determine that connection is operative (sufficient nexus) cannot
dismiss state part of the claims without affecting federal claims; Statutory
discretionary factors dont weigh in favor of a decision to decline
e. Szendrey-Ramos v. First Bancorp: P sued for violation of federal
employment law and claims arising under P.R. law; Court declines to exercise
supplemental jurisdiction because:
i. P.R. claims substantially predominate over federal claims (state claims posit
novel and complex issues of state law)
ii. P.R. has never addressed the issue (novel) state should have first
impression of the law
iii. P.R. claims dismissed without prejudice, D may refile in P.R. courts
f. LIMIT: 1367(b) In cases where diversity jurisdiction is the sole reason for
original federal court jurisdiction, no supplemental jurisdiction for claims
made by P against parties who are joined under:
i. FR 14 Impleaders
ii. FR 19 Compulsory Joinders
iii. FR 20 Permissive Joinders
iv. FR 24 Intervention Joinders
b. Want to avoid having ways for P to get around the diversity issue; P cant
have cake and eat it too
SMJ POLICY
IV.
1.
Why only look at Ps claim for federal question?
a. Ps might invoke federal jurisdiction simply by referring in their complaints
to defenses they expected D
to raise, or by speculating about ones the defendant could raise, simply to
create federal SMJ
b. Under well-pleaded complaint rule, the court is able to determine at the

outset whether it has

jurisdiction, based on the claims P has asserted, without waiting for Ds
answer
i. Sorting cases at the start of the lawsuit before anyone invests too much
time
REMOVAL
1441: Removal of civil actions 1446: Procedure for removal
Motion must be filed within 30 days by D after receiving pleading 1447:
Procedure After Removal
a.
i.
ii.
iii. iv. v.
RULES OF REMOVAL
One way street: Can only move from state to federal court
a. If removal is improper, remanded back to state court
Straight up: Removal to the federal court that the state court is situated in
(not to a different federal jurisdiction)
Only Ds (and any D) can remove, and there must be unanimity in deciding to
remove
Timely: Must file removal with 30 days of receiving pleading [1146(b)]
Original suit could have been brought in federal court, only then can you
remove. Two exceptions:
a. 1441(b): D cannot remove if he is a state citizen in the state where the
suit is occurring if the
SMJ is diversity; D cannot remove a diversity case if D is a citizen of the forum
i. Removal is proper if there is a federal question in the suit
b. 1146(b): No removal more than one year after case was filed in state
court
i. Encourage Ps to abuse by adding joinder, which would make the case have
federal J
more than a year after complaint 10
vi. b.
c.
d. e.
Supplemental: Federal courts have discretion to hear non-federal claims after
removal (but can
decline)
1441: When can a defendant remove?
i. Federal Question Jurisdiction: Any D can remove to federal court
ii. Diversity Jurisdiction:
a. In-state citizen may not remove (no unfair advantage for D when D is in
home state)
b. Out of state may remove (because potential unfair advantage of the
forum P chose)
c. Need to know if complete diversity at the time of removal (Spencer)
iii. Supplemental Jurisdiction: Federal court has discretion to hear or refuse
removal claims under SJ
1442: Federal defense removal
a. Permits federal officers to remove case to federal court, even if this

wouldnt work under 1441(a) 1445: Non-removable actions

1446: Procedure for Removal
i. Motion to remove must be filed within 30 days of being served; 30 days
refreshes with each newly served D
a. EXCEPT if it is because of lack of SMJ can be removed at any time ii. If
diversity is basis must be within 1 year of complaint
a. Larson v. American Family Mutual Ins. Co: D removed to federal court
P added another D after diversity; which would ruin complete diversity and
remand to
state court
D argued that the motion was not timely filed and new claims did not arise
out of the
same occurrences of the other claims
Court doesnt agree case remanded to state court
1447: Procedure After Removal
a. Removal order is not appealable (not a final judgment)
b. If after removal P seeks to join Ds that would destroy SMJ, the court can
deny joinder or permit
and remove back to state court
c. If after removal, federal question claim is thrown out, case is removed back
to state court
d. Caterpillar, Inc. v. Lewis: Federal court failed to remand case where
removal as improper
Did not have complete diversity of he parties
Judgment upheld if federal jurisdiction requirements are met by the time of
judgment (defects
are cured Considerations of finality, efficiency, and judicial economy) 1369:
Federal multi-party, multi-forum jurisdiction
a. Limited, targeted form of original jurisdiction based on minimal diversity
for big, mass-disaster cases (applies only when 75+ people have died in a
single event)
b. Only need one claimant diverse from one D Trying to make one federal
forum available so no huge headache from split litigation
c. Special removal provision
i. P who has non-diversity state law claim against D in federal action can
intervene and join
in federal action
ii. Presumption that individual damages determinations go back to state court
after liability
has been established in federal court

ERIE: STATE LAW IN FEDERAL COURTS

f.
g.
28 USC 1652: Rules of Decision Act
Law of the state shall be regarded as the rules of decision in civil actions in
federal courts unless the
constitution or acts of congress otherwise require/provide a rule 28 USC
2072: Rules Enabling Act
SC has power to prescribe general rules of practice & procedure for federal

courts
Such rules shall not abridge, enlarge, or modify any substantive right

11
I. Dual-regime problem
a. Swift led to problem that you could get different governing substantive law
just because you were in
federal court as opposed to state court
b. Couldnt predict what law would govern because dont know what forum
youll be in
c. Subverting legitimate state policies
II. Erie Railroad v. Tompkins: Tompkins hurt by train in PA, sues in NY (PA =
wanton negligence; General fed. CL = ordinary n)
Federal courts sitting in diversity action are bound to replicate state
practices (unless congress says otherwise) therefore, must apply PA state
law
III. Erie deals with diversity cases: State = Substantive law (elements of a
claim), Federal = Procedural law
a. Discourage forum shopping and allow equitable administration of the laws
b. ALWAYS apply federal procedural rules (unless there is no statute on point
then apply state law)
c. Substantive: Right granted for one or more non-procedural reasons, for
some purpose not having to do
with the fairness or efficiency of the litigation process
d. Procedural: Body of principles designed to provide a means for
adjudicating controversies over rights
derived from substantive law
IV. Why must a federal court sitting in diversity apply state law in
substantive issues?
a. Constitutional reason, compelled by Tenth Amendment (Erie)
b. Statutory reason
i. Rules Enabling Act - [28 USC 2072(b)] federal rules of civ pro cannot
abridge, enlarge, or modify any substantive right
ii. BUT - Constitution is more important
V. ERIE TESTS should we apply state or federal law? + Hanna test!
ADDRESS ALL 3 ELEMENTS, HANNA FIRST
a. The Twin Aims of Erie
i. No forum shopping
1. Avoid manipulation of the sort upheld in Black & White Taxicab Co. v.
Brown & Yellow Taxicab Co.
2. Avoid discrimination in favor of out-of-state plaintiff who can choose the
court system
ii. Encourage equitable administration of the law (outcomedeterminativeness)
1. Want uniformity, not multiple, varying decisions on recurring issues
2. Moreover, Swift was unconstitutional because it allowed federal judges to
make law
where C had not delegated power
iii. APPLICATION: If federal courts ignored state law, would it cause litigants to
flock to the federal
courts?

1. Yes Apply state law

a. Why? (1) Federal courts are busy (2) unfair to in-state litigants who can't
get federal jurisdiction because they can't invoke diversity jurisdiction
b. Outcome-Determinative Test
i. If applying the states law would affect the outcome of the case, then the
federal court must
apply that substantive law
ii. Outcome of litigation should not differ substantially between federal and
state
iii. Problem - Every rule can be outcome determinative, how do you limit test
(b)?
1. Guaranty Trust Co. v. York: P couldnt get recovery in state court because
SOL had run,
so he filed suit in federal court because of diversity citizenship
Federal court cannot grant recovery because it would be outcome
determinative iv. IF law is O-D, apply state law UNLESS....
c. Balancing Federal/State Interests
i. If the law is outcome determinative, is there a strong federal interest?
ii. Is there a weak state interest?
iii. Strong federal interest and weak state interest, then you should excuse
the state law
1. Byrd v. Blueridge Rural: P sues employer for negligence, state law
determines only remedy is workers comp

12

BUT there are strong federal issues at stake (jury trial P should have
opportunity to offer his own proof) and weak state interests
d. Trans-substantive rule: regardless of the type of case, the same set of rules
apply the hope is to have a uniform set of rules with minor variations for the
different subjects
VI. Hanna Test = Federal rule trumps state (procedure) IF YES NO
NEED FOR ERIE ANALYSIS a. RULE: If there is a FRCP that directly clashes
with state lawApply FRCP
i. FRCP must be on point, valid under 2072 (REA), arguably procedural
1. No FRCP has EVER been deemed invalid (SCOTUS creates the FRCP so
they would be
saying they themselves were wrong, which we know doesnt happen often) ii.
Justification comes from the REA and Supremacy Clause of Constitution
b. HANNA TEST
i. Does a valid FRCP apply?
1. Yes Apply the rule
2. No Assess whether the state law is outcome determinative and if there is
strong
federal interests
c. Byrd & Hanna: Limit Erie, federal courts dont have to necessarily behave
like state
d. Hanna v. Plumer: Husband killed in crash, P serves his wife, civil action with
diversity jurisdiction
Mass. Law: Personal service on executor of estate (D wins)
Rule 4: Can leave with competent adult (P wins litigation continues)

Court finds rule 4 is controlling

e. POLICY: Courts cannot ignore FRCP whenever it alters the mode of
enforcing state-created rights would shut down government and violates
Constitutions grant of power over federal procedure
i. Hanna noted constitutional authority under Necessary and Proper Clause ii.
REA gives broad statutory authority for FRCP
iii. Both take precedent over state rules as long as theyre arguably
procedural because of the Supremacy Clause
VII. Choice of law: Court where an action is brought determines whether to
apply the law applicable in that forum or apply the law of another jurisdiction
which has interest in the controversy (such as where the incident occurred)
(EX: Tort = site of accident; Contract = where contract is formed &
performed, Property = sight of property)

13

ii.
iii. iv.
i.
Flexible plausibility standard (extension of Bell)
1. Bell Atlantic Corp. v. Twombly: Antitrust action, P did not nudge claim
across the line
from conceivable to plausible
Must pass threshold from possibility to probability (extension of Twombly)
1. Ashcroft v. Iqbal: Iqbal held unconstitutionally because of race/religion
after 9/11.
2. Complaint must provide a reasonable inference that the defendant is liable
for the
misconduct alleged (Iqbal contained conclusions of law which are deemed
unacceptable, need actual allegations of fact that make the claim plausible)
3. This is not just limited to antitrust actions
What complaint is deficient? (Stops short of the line between possibility and
plausibility) 1. If complaint only pleads facts that are merely consistent with
Ds liability, uses
conclusory language, or naked assertions devoid of further factual
enhancement Post Twombly-Iqbal: before, courts would read complaint in the
light most favorable to D, now they must also ask are the allegations
plausible?

PART II: THE PROCESS OF LITIGATION

PLEADING

7(a): Pleadings: Defines complaint, answer to complaint, answer to

counterclaim, third party complaint 7(b): Request for a court order is a motion
and must be made in writing and state relief sought
8(a): The complaint must state:
(1) Basis for jurisdiction/statement of SMJ
(2) Short and plain statement of the claim showing pleader is entitled to
relief
o Notice pleading: generally have to put the D on notice by including enough
relevant information to give D a chance to respond
(3) Demand for judgment (asking for relief)

(4) Damages (monetary or equitable)

LIMIT: If complaint
9(b): If alleging fraud, party must state with particularity (details of
circumstances amounting to fraud) 9(g): Must plead with specificity if you
seek relief for special damages
11: Sanctions (for lawyers)
12: Motion to dismiss
13: Counterclaims
15: Amendments
16: Scheduling rule
26: Scope of discovery 37(a): Motion to compel
i. PLEADINGS
a. Purpose of pleading to notify other side of the kind of claim(s) against it
ii. COMPLAINT
a. FR 8(a): How descriptive must a complaint be? (sorting strong and
weak cases)
i. Drafters wanted sorting to happen during discovery
1. Discovery is expensive, but may be the only tool to uncover information
ii. Detailed complaints: Screen weak cases early, but also may eliminate
certain claims that would be strong after discovery
iii. Notice pleading: More weak cases, but may lead to more claims being
resolved justly
1. Conley Test: As long as I can describe some conceivable set of facts that
would entitle
me to relief, I can beat a 12(b)(6) motion (Conley v. Gibson) has notice
problems
2. Must give fair notice, but dont have to plead a prima facie case
(Swierkiewicz)
b. Twombly-Iqbal standard (staple of federal litigation)
c. Rules of Twiqbal
i. Court ignores conclusion of law and looks only at alleged facts

14

ii. The facts must support a plausible claim

iii. Court uses its experience and common sense to assess plausibility (very
subjective)
iv. Courts more generous with complaints by pro se plaintiffs (Erickson)
iii. RESPONDING TO THE COMPLAINT: Either answer (pleading) or motion
a. NO ANSWER FR 55(a): Default Judgment: a court may rule against nonmoving party for their failure to
plead or defend claims
i. Cannot differ in kind or amount from what is demanded in the pleadings
ii. Want to incentivize people to come to court only if they have a defense
b. PRE-ANSWER MOTIONS FR 12 motions
i. Must raise any and all motions for FR 12(b) (2-5) together and in the very
first response either before or with the answer, or waived
ii. FR 12(b)(6-7) can be raised for the first time anytime through trial (cannot
raise on appeal)
iii. Motions: Often strategic moves - do not have to address substantive
claims, stops procedural
clock and buys time, do not have to put forth defenses

iv. Motions do not require party to set forth their version of the facts (unlike
complaint/answer)
v. Different motions:
1. FR 12 (b)(1): Jurisdiction subject-matter (can always raise)
2. FR 12 (b)(2): Jurisdiction personal
3. FR 12 (b)(3): Improper venue
4. FR 12 (b)(4): Insufficient process Documents in process are faulty
5. FR 12 (b)(5): Insufficient service of process Documents okay but served
incorrectly
6. FR 12 (b)(6): Failure to state a claim upon which relief can be granted
(cannot raise on
appeal)
a. Substantive; This is where Twiqbal issues come in
b. If granted, P can appeal because it effectively ends the case
c. Courts assume all allegations in complaint are true
7. FR 12 (b)(7): Failure to join an indispensible party under FR 19 (cannot
raise on appeal)
8. FR 12 (e): Motion for a more definite statement: Make the party file a
pleading that is
more definite and certain (rarely used, and we rely on discovery instead)
9. FR 12(f): Motion to strike: Allows a party to challenge a part of a pleading
that fails
under the substantive law
a. Allows a party to force the removal of irrelevant, repetitive, and prejudicial
allegations in a pleading
b. Decision may depend on if the pleadings will be read by a jury and if it
might
prejudice the jury
c. ANSWER [FR 8(b)]: Must answer within 21 days (if waived personal
service, 60 days)
i. Must include substantive defense
ii. Respondent must go through complaint and make 1 of 3 responses to each
issue:
1. Accept/admit: Specific admit to each claim, must respond to the
substantial allegations
2. Challenge/deny: Shifts burden back to P; If you fail to deny, then you
are admitting to it
(except damages)
3. Say lack sufficient information: FR 8(b)(5) specifies it has to be something
not in Ds control
iii. Inadequacies in answer not treated as stringently as those in complaint
1. Courts will usually just make lawyers amend answer (Milton)
2. Some courts dee defective answers to allegations as admissions (King
Vision)
iv. Affirmative defenses: Burden on D to prove, not a denial but shifts the
legal consequences and context (needed in answer or risk waiver)
1. Must state defenses in short and plain terms
2. FR 8(c)(1) affirmative defenses (examples, not a complete list):
a. Accord and satisfaction/release previously settled
b. Contributory negligence, duress, fraud, illegality

15

c. Res judicata - issue and claim preclusion

d. Statute of limitations
v. Federal courts split on whether Twiqbal standards also apply to answer
1. Some courts (sharp divide) have come down in favor of applying Twiqbal
standards to Ds affirmative defenses (Racick)
a. Wouldnt apply to denials or statements of lack of information/knowledge
2. Fairness concerns: Ds have less time to answer than P does to file
complaint
d. Counterclaims must still respond to Ps claims and must clearly mark
counterclaims
i. FR 13(a)- Compulsory Counterclaims: a pleadings must state its
counterclaims specifically (all
claims arising from the same transaction or occurrence) 1. Use it or lose it
ii. Permissive counterclaims: can throw in the kitchen sink, but must still
establish jurisdiction iv. AMENDMENTS (Rule 15)
a. FR 15(a)(1): No need for permission
i. P is allowed to amend once before D files answer (in 21 days) as a matter
of course
ii. D is allowed to amend once within 21 days of service
b. FR 15(a)(2): Needs permission (from court or other party) after the 21 days
i. Court supposed to freely give leave when justice so requires (Forman v.
Davis)
ii. Liberal spirit of the rule can trump considerations of finality (final judgment
in Williams v.
Citigroup)
c. Tension between 2 goals:
i. Easy amendment: allows pleading to reflect the parties changing views on a
case as it develops
ii. Prejudice: at some point, you have to make a decision of what case to
present
d. Reasons to deny amendment
i. Lawyer should have obviously considered the legal theory sooner
ii. Might not give defense enough time to prepare experts, depos, discovery
iii. Legally insufficient, clear prejudice, or bad faith
iv. Already had opportunity to amend, but didnt
e. FR 15(c)(1)(c): Relating Back
i. Relation Back Doctrine: If D has been advised of the general facts from
which belated claim
arises, the amendment relates back even if SOL has run
1. One who has been given notice of litigation concerning a given transaction
or
occurrence has been provided with all the protection the SOL is designed to
afford
2. Must arise out of the same conduct, transaction, or occurrence set out
(or attempted
to be set out) in the original pleading)
a. Does new legal theory rely on same facts as original pleading? (Tran v.
Alphonse
Hotel)

3. Must be added 120 days after complaint was filed

4. Knew or should have know that the action would have been brought
against you
ii. Changing D because of misnomer
1. Must be within 120 days
2. Will new party be prejudiced in defending on the merits?
3. Did the party know, or should have known, that the action really should
have been
brought against them but for mistake regarding the proper partys identity?
a. Focus is on constructive notice to new party (Krupski)
f. LIMITS ON PLEADINGS
i.
ii.
FR 11: Pleadings, motions, and other papers signed by attorney
1. Restricts a lawyers ability to file a pleading when he has no more than a
hope that a
favorable fact or law will emerge as the case progresses
2. Must be signed and attested to by party (via attorney)
If FR 11(b) is violated on attorney, firm or party. Motion for sanction must be
party-initiated and made independently (under FR 5) Sanction is on the
lawyer, with the firm jointly responsible

16

1. FR 11(b)(2) Safe Harbor Rule: Must be served but doesnt have to be filed
right away allows attorney to change their behavior (party-initiated)
2. FR 11(b)(3): Court orders attorney to show cause why conduct has not
violated FR 11, and attorney given a chance to respond
3. Purpose is to ensure integrity of process and conduct of parties, attorneys,
and firms
4. Does not cover sanctions for discovery abuses or misstatements made to
the court
during oral presentation
5. Can provide for opposing sides attorneys fees, nonmonetary directives, or
anything to
deter conduct
a. Focus on deterrence, not on compensation
6. Standards
a.
b.
Objective reasonableness test (no subjective, bad faith requirement)
i. Certifying to truth after a reasonable inquiry (improper purpose of suit,
frivolous suit, lack of evidentiary support, denial of facts)
ii. Need to show legal contentions are warranted by existing law (Frantz)
Provision in FR 11(b)(3) permits factual contentions that dont presently have
evidentiary support if they are labeled as such and will likely have evidentiary
support after a reasonable opportunity for further investigation or discovery

JOINDER Watch out for SMJ

FR
FR
FR
FR

13:
14:
19:
20:

Counterclaims
Claim joinder - Impleader FR 18: Claim joinder
Compulsory joinder
Permissive joinder

FR 22: Interpleader
FR 24: Claim joinder - Intervention
Interplay of the rules: Joinder of parties (FR 20) v. Joinder of claims (FR 18 &
13)
o FR 20 allows joinder of parties, and FR 18 and 13 allows joinder of claims
against opposing parties
(once they are properly joined under FR 20) Conflicting Rules? FR 13 and 14
limit FR 18
o FR 18: Can join all cases, either independently or alternative claims o FR
13: Can join only same transaction
o FR 14: Can join only transactionally related claim against 3rd party
I. CLAIM JOINDER [FR 18(a)]
a. A party asserting a claim, counter claim, cross claim, or third party claim
may join, as independent or
alternative claims, as many claims as it has against an opposing party
b. P can join all claims against the same D, even if they are not
transactionally related
c. Never compulsory, but claim preclusion may apply depending on state law
d. Rules authorize joinder of a claim, but there must be sufficient jurisdiction
of that claim as well
i. Tension between: FR 18 (broad joinder of related claims to promote
efficiency) and Article III (limits on federal court jurisdiction)
e. Joinder claim in federal court MUST have SMJ
i. Claims can have INDEPENDENT basis for jurisdiction (do not all have to be
arising under or diversity)
but still must pass jurisdiction test
ii. Owen Equipment v. Kroger: Joinder of Krogers claim against 3rd party D,
permissible under FR 14,
makes sense to hear claim in the same action with the main claim & 3rd
party claim court did not
extend sup. jurisdiction to provide a basis for SMJ over 3rd party claim
f. EXCEPTION: Supplemental jurisdiction can provide jurisdictional basis for
additional claims
a. LIMIT: In cases where diversity jurisdiction is the sole reason for original
federal court jurisdiction - no supplemental jurisdiction for claims made by P
against parties who are joined under: FR 14 Impleaders; FR 19 Compulsory
Joinders; FR 20 Permissive Joinders; FR 24 Intervention Joinders

17

II.
i. WHY? 1367(b) If P sues in federal court based on diversity, they could
then join every other D from the same state (which would normally destroy
diversity)
Ds COUNTERCLAIM (FR 13) Claim can be asserted procedurally, but also
need SMJ (diversity or FQ; supp.) a. Compulsory: FR 13(a): Arising out of the
same transaction or occurrence as Ps claim
i. Logical relations test (Painter): Satisfied if the same aggregate of facts
go to both claims and the counterclaim
1. Are the issues of fact and law raised by the claim and counterclaim largely
the same?
2. Would res judicata bar a subsequent suit on Ds claim absent the

compulsory
counterclaim rule?
3. Will substantially the same evidence support or refute Ps claim as well as
Ds
counterclaim?
4. Is there any logical relation between the claim and the counterclaim?
ii. Affirmative answer to any question means counterclaim is compulsory
iii. Use it or lose it: Must be asserted in the answer or it is waived
iv. EXCEPTION: If the court lacks jurisdiction over a 3rd party who is necessary
to the action, then
the counterclaim is not waived
v. Establish compulsory claim = establish jurisdiction (supplemental) Will
always have
supplemental jurisdiction in compulsory unless 1367(b), which only applies to
P
a. CHECKLIST
Why the claim is procedurally okay
I. II.
III.
IV.
i. SMJ i.
ii. a.
Compulsory counterclaim, opposing party, same transaction or occurrence
Demonstrate why no diversity (citizenship or amount in controversy), no
federal question (state law claim), then look at supplemental
1367(a) and 1367(b)
Permissive: FR 13(b): Does not arise from the same transaction or occurrence
as Ps claim
i. May be asserted, but if not, can still sue separately
ii. No supplemental jurisdiction, must have independent SMJ
iii. FR 42(b): Courts may separate suits for efficiency
PS CROSSCLAIM [FR 13(g)] Must arise from the transaction/occurrence as
Ps claim
a. Asserted by either party against co-party (P v. P) or (D v. D) Requires
multiple parties
b. NEVER compulsory
c. If OG claim has federal question jurisdiction, then supplemental jurisdiction
exists even if cross-claim
does not have independent federal question SMJ
PERMISSIVE JOINDER (FR 20) Gives P the right to add multiple Ps or
multiple Ds
a. Joining of Ps is voluntary if: FR 20(a)(1)
i. Arises out of the same transaction/occurrence
ii. Raise a common question of law or fact
b. Joining of Ds (at Ps option): FR 20(a)(2)
i. Claim against the Ds arises out of the same transaction/occurrence ii. Raise
a common question of law or fact
c. PJ for joining parties: Each D must have individual PJ i. Service: Must be
personally served
ii. Contacts: Each D must meet minimum contacts threshold

iii. Long Arm limits: States statutory jurisdictional authority must reach D
d. SMJ for Joining Parties
i. Federal Question Claim = supplemental J may apply
ii. Diversity claim = no supplemental J, MUST maintain complete diversity &
satisfy amount in controversy requirement
e. Mosley v. General Motors: action b/c of racial discrimination w/ 10 Ps, court
severs the actions, permissive joinder (arise out of same t/o or common q of
law/fact) - REVERSED

18

Ps want them joined to show systematic discrimination

D wants them separate to show individual cases & point to problems with
single P
V. JOINDER OF ADDITIONAL PARTIES TO A COUNTERCLAIM OR
CROSSCLAIM (FR 13(h))
a. Allows addition of parties to a counterclaim or crosslaim and says FR 19
and 20 govern the joinder VI. COMPULSORY JOINDER (FR 19) P, D, and
Absentee
a.
b.
c.
d.
Party is required/necessary if: Apply all 3 tests
i. 19(a)(1)(A): There is no complete relief for the parties without X (focusing
on efficiency)
ii. 19(a)(1)(B)(i): Xs interests may be harmed if she is not joined (focusing on
absentee)
iii. 19(a)(1)(B)(ii): Xs interests may subject D to multiple or inconsistent
obligations/judgments
(joint tortfeasors are not necessary)
Is joining of party feasible?
i. Court must have PJ over X
ii. X must not destroy SMJ (diversity)
iii. FR 19(b): IF JOINDER NOT POSSIBLE, proceed without X or dismiss the
case
a. FR 19(b)(4): Will plaintiff have an adequate remedy available if this is
dismissed?
i.
i. If no, then dont dismiss. If yes, then label X indispensible and 12(b)(7)
motion Typically operates when there is some connection of property,
contract rights, or obligation between those who are initially made parties
and those who have not been joined
Temple v. Synthes: P sued D (manufacture of medical device) in LA on
diversity J & then sued doctor who performed surgery separately DC
ordered P to join suits under 19(a) b/c they were joint tortfeasors, judicial
economy
SC held that it is NOT necessary for all joint tortfeasors to be named as Ds
in a single lawsuit they are merely permissive parties
A party does not become compulsory to an action to determine rights under a
contract simply because that persons rights or obligations under a separate
contract will be affected by the result of the action

Helzberg Diamond Shops v. Valley West Des Moines Shopping Center: P

entered into lease agreement with D to be the only jeweler. D leased to more
jewelry stores so P sued for injunction under diversity jurisdiction
o D appealed b/c they said this ruling would prejudice the other jewelry store
(Lords) & TF must be joined under FR 19
o Court held that any inconsistency in obligation to Lords resulted from
Wests voluntary execution of 2 leases which impose inconsistent obligations
VII. CLAIM JOINDER: IMPLEADER (FR 14) D brings in a third party who
may be liable to D
a.
b. c.
Derivative Liability: FR 14(a) D may bring in another party (third party
defendant) who is or may be liable for some or all of the claim (must arise
from same transaction or occurrence)
i. LIMIT: D cannot claim that third party defendant is the only liable party
(cannot say, Its him, not me). Impleading says, If Im responsible, so is he.
ii. PERMISSIVE is never compulsory (Because what if they could not
establish PJ?)
iii. Price v. CTB: Price hired Lacto to build a chicken house. Lacto impleaded
nail manufacturer
rd
original D must be found guilty in order to find 3 party liable
iv. FR 14(a)(3): After D brings in 3rd party, P can also make a claim against
same 3rd if claim has
same T/O as Ps claim against D.
Impleading with the P: FR 14(b) If D files a counterclaim against P, P can
bring a suit against a new third party defendant IF it arises from the same
transaction or occurrence
rd
v. Any claim by P against 3 party D must have independent SMJ (no
supplemental) Impleader Jurisdiction
vi. 100-mile bulge: service may be made with 100 mile range surrounding the
courthouse even of outside state or long arm. FR 4(k)
vii. Automatic Supplementary Jurisdiction no need to satisfy diversity
viii. Third party defendant has no impact on venue (as long as it was valid
between the original P and
D)

19

d. Owen Equipment & Erection Co. v. Kroger: in an action where federal

jurisdiction is based on diversity, a P may not circumvent complete diversity
by using supplemental jurisdiction to implead (join) a claim against a D who is
a citizen of the same state as P
VIII. INTERPLEADER (FR 22)
a. Device for stakeholders to consolidate claims of multiple claimants whose
claims are identical
with each other (and possibly mutually exclusive or inconsistent)
i. E.g. Insurance carrier would want to use interpleader if two claimants are
brinigng suit
against it, but it thinks it should only have to pay one of them If litigation
brought
separately by two claimants, they both win, exposing carrier to double or

multiple b. Statutory interpleader (1335)

i. More expansive than FR 22
ii. Minimal diversity requirement of claimants making sure federal forum
available when
problem of scattered claimants
iii. Provides for nationwide service
IX. CLAIM JOINDER: INTERVENTION (FR 24) When a party (X) inserts
herself as a P to assert a claim or a D to defend a claim
a. Intervention by Right: FR 24(a) only if
i. FR 24(a)(1): Federal statute allows; or
ii. FR 24(a)(2): Intervention by right if
1. X claims an interest relating to the property or transaction that is the
subject matter of the action
2. Xs interests may be harmed if not joined (same test as necessary party
raised by D under FR 19)
3. Xs interests are not already adequately represented
b. Permissive Intervention
i. FR 24(b)(1): Must show that Xs claim or defense has a common question of
fact
with existing suit
1. Must be timely, though the court has discretion not to allow it
2. Intervention is more likely to be granted if the party seeking it can show
that it brings a special expertise or a different perspective to the controversy
than the original parties, or if refusing intervention may lead to other suits
litigating the same issues
ii. FR 24(b)(2) applies to government agencies/officers
c. Must always have independent SMJ for an intervention-ists claim
d. Natural Resources Defense Council v. US Regulatory Commission: 3
different groups seek to
intervene in a case regarding environmental impact statements (which are
not legally required in New Mexico)
One intervener is granted to enjoin and the other 2 are still pending
Court holds that all intervener should be allowed: judicial economy, worry
that one
intervener will not represent the interests of everyone, everyone bound by
the
same decision
e. If you are not party to a lawsuit you are not bound by the decision
i. There is NO mandatory intervention or impermissible collateral attack
doctrine
ii. Burden is on the parties to join any affected parties under FR 19
iii. Martin v. Wilks: outside parties are not precluded from bringing a suit even
though they had knowledge of suit & opportunity to intervene (but didnt)
JOINDER POLICY
+: Efficient to litigate the same issue once instead of repeatedly in separate
suits; Avoid inconsistent judgment
-: Undue delay in seeking joinder; Complication of the issues in the main
action; Potential prejudice to P from imleading a sympathetic third party

20

CLASS ACTION

I. CLASS ACTION (FR 23)

a. When representative(s) sue on behalf of a group of people who are
similarly situated (called a class)
b. Constitutionally permissible under DPC (Hansberry)
c. Before case begins, the class must be certified. 2 requirements:
a. 23(a): All classes must satisfy 4 criteria (two implicit: adequately
definable class, class representatives must be members of the class)
1. Numerosity: Too many people in a class so that joinder is impracticable
2. Commonality: Question(s) of law or fact common to the class suffered
the same injury
a. Defined in Wal-Mart (makes commonality a much more restrictive
standard)
b. Common issue must be capable of a class wide resolution important thing
is
common ANSWER to the resolution, not common questions
3. Typicality: Claims/defenses of the representative are typical of the claims
or defenses of the
class
a. Class representatives stand in the same shoes as average class member
4. Adequacy: Class representative(s) and class attorney will adequately
protect the interests of the class
b. 23(b): All classes must fall into 1 of 3 types of class action
i. 23(b)(1): Risk of conflicting judgments (used very rarely - forget about this
one)
ii. 23(b)(2): Injunctions/declaratory judgment
1. No monetary relief that is not incidental to injunctive or declaratory relief
iii. 23(b)(3): Catch all [if you cant fit under (1) or (2)] (usually used when
seeking damages) 1. Additional requirements:
a. Predomination: Common issues predominate over individual issues
b. Superiority: Class action is the superior way of resolving the issue
i. Class action better than individual cases because of efficiency (What if
individual is really harmed? Makes more sense to bring their own claim)
iv. Criteria for certification of class entirely procedural
1. Nothing about whether the claims have substantive merit; Courts not
supposed to
influenced by substantive strength of the class claims c. Adequacy [23(a)(4)]
i. Hansberry v. Lee: covenant in a neighborhood against black neighbors,
court found that RJ was not appropriate & the new family was not bound by
prior action because they were not designated a party by service & TF there
was a violation of due process, court found prior action (Burke) was NOT
representing a class
ii. Amchec Products Inc. v. Windsor: settlement case (asbestos) that decided
set amount of damages for all Ps going forward, found that 23(a)(4) was not
satisfied no assurance that the class representative properly understood
their representational responsibilities, diverse medical conditions; 23(b)(3)
predominance requirement was not met
1. Very hard for Ps to opt out, no notice because some Ps arent Ps yet (not
sick)

21

d. Certification [23(c)]

i. Class must be certified by the court

1. Not a class action UNTIL certified
ii. Certification order defines the class, claims, issues, defenses, appoints
counsel
e. Appointing counsel to a class action [23(g)(1)]
i. More intense process than individual litigation
ii. Courts consider: counsels experience in handling class actions, knowledge
of applicable law, resources counsel will commit, the work counsel has done
in identifying/investigating claims
f. Due process and class action: notice of pendency
i. Lose right to bring the case individually
ii. What process is due before that right can be taken away?
1. Notice of the class action, opportunity to opt out, adequate representation
2. 23(c)(2)(A) - (b)(1) and (b)(2): Appropriate notice; No right to opt out
(mandatory)
3. 23(c)(2)(B) - (b)(3): Individual notice to all members who can be identified
with
reasonable effort; Right to opt out and represent individually
g. Personal Jurisdiction
i. Defendant: Strong interest in not being sued in state without minimum
contacts 1. fairness, personal service, etc.
ii. Plaintiff: Weak interest in not being part of a class in a state where they
have no minimum contacts
1. Notice through mail or email AND an option to opt out of the class
2. Phillips Petroleum v. Shutts: P claimed that class could not be certified
because KS does
not have PJ over the out of state Ps because it is a denial of due process.
Ps in class action are not treated the same as Ds to satisfy personal
jurisdiction
because their burden is not the same. The Ps were notified and could have
optedout (Mullane) and so PJ is adequate
h. Multi-state class action? = Choice of law question, apply the law in the
state suit is brought in
i. SMJ?
i. Diversity
1. The representative must be diverse from all of the Ds (class membership
doesnt
matter)
2. Amount in controversy: Representatives claim must exceed $75,000
(Exxon Mobil Corp.
v. Allapattah)

22

26: Scope of discovery (master rule for discovery) 16: Scheduling conference
rule
37(a): Motion to compel
I.
j. Class Action Fairness Act
i. Federal Jurisdiction
ii. Minimal diversity between any member of that class and any P

iii. Aggregate claim over $5 million

iv. Can be brought in federal courts or removed
v. Federal court has discretion to decline jurisdiction
k. Attorney fees - What is fair?
i. Common fund doctrine: fees come out of the settlement
ii. Calculating fees
1. Contingency fee (%)
2. Lodestar method (estimate hours that attorney worked, and then come up
with
reasonable fee)
a. Reward attorney who does more work on the case
l. Wal-Mart v. Dukes: Brought as a 23(b)(2) claim. Having the same claim,
discrimination under Title VII, does not mean that all claims can be
productively litigated at once.
Crux of the case is commonality must suffer the same injury, but it does
not have to be suffered in the same way
No showing of a common mode of managerial discretion pervaded entire
company
Employees back pay claim was improperly certified under 23(b)(2) no
certification of
monetary relief that are not incidental to injunctive or declaratory relief
o 23(b)(3) class is more appropriate
Put those who deserve money at a disadvantage because they couldnt
bring a separate claim
m. Class Action Settlements [FR 23(e)]
i. Needs judicial approval: Must be fair, reasonable, and adequate
ii. Reasonable notice, disclosure of any agreements between parties,
opportunity to object
iii. 23(e)(4) Judge MAY refuse to approve a settlement unless class
members are given another
chance to opt out.
n. Problem of average recovery
i. Uniform damages everyone suffers equally
1. $10 per person, and everyone get $10 back = fair
ii. Different damages
1. P1-$15;P2-$5
2. Is it fair to average damages?
3. Essentially circumventing the legal system (individualized determinations)
PROBLEM: Attorneys generally make a lot of money of class actions, while Ps
make little, coupon settlements concern of who is actually benefiting from
this action

DISCOVERY
REQUIRED DISCLOSURES [FR 26(a)]
a. 26(a): Parties have a duty to disclose information without courts order or
request from opposing party
at beginning of discovery (parties names, document locations, general
computation of damages, etc.) i. FR 26(a)(1) Initial Disclosures: Requires
exchange categories of information that the disclosing
party may use to support its claim or defenses. Must exchange without

having been requested by other side (Names, addresses of witnesses, basic

damages calculation, insurance)
1. Everyone who may have discoverable information and all documents
(including ESI) that may be used at trial

23

a. Not required to produce document just describe them by category and

location
2. Arent required to identify name of individuals/witnesses who may hurt
case ii. FR 26(a)(2) Experts: List of any expert witnesses (generally after
discovery)
1. All opinions/basis for experts conclusions, experts qualifications, facts
relied on b. FR 26(a)(3) Evidence to be used a trial: List of witnesses,
documents
i. Due 90 days before trial (complete statement made by witness), list of facts
used to support claim, exhibits, witnesss qualifications, other cases and
statement of compensation
ii. FR 26(e) Supplements: for additional (new) information later discovered
1. Sanctions if not admitted or amended in a timely manner under 26(g)
c. Process
i. FR 26(d): Cant seek any discovery until parties have conferred 1.
Essentially a moratorium on discovery
ii. FR 16(b)(1): Judge supposed to set time for later scheduling conference
with judge and parties
1. Scheduling the scheduling conference
2. FR 26(f)(1): Count back 21 days from scheduled time for scheduling
conference, and
parties get together to set time for them to conference
a. FR 26(f)(2): Parties have Rule 26 conference
b. Within 14 days of Rule 26 conference, supposed to come up with discovery
plan
to judge (FR 26(f)(3)) and make initial disclosures (FR 26(a)(1)(C))
3. Finally have scheduling conference with judge
II. SCOPE OF DISCOVERY [26(b)]: Any non-privileged matter that is
relevant to a partys claim or defense; Relevant is anything reasonably
calculated to lead to admissible evidence (relevant is broader than
admissible)
a. FR 26(b)(1): Information need not be admissible at trial if calculated to lead
to discovery of admissible evidence (can ask for stuff not admissible at trial if
it may lead to other stuff); Need not disclose information that will impeach
your claim or defense, unless specific-requested later on by opposing party;
court can grant broader discovery with good cause
i. Can seek a protective order
1. Burden and expense of producing the information; Potential for use of
discovery to
annoy or intimidate an opponent; Protect proprietary business information,
etc.
a. Objections to Discovery: Relevance, Privilege, Undue Burden, Vagueness
b. Privileged information is non-discoverable
i. Based on relationship: attorney-client, doctor-patient, spousal, priest
ii. Limits discovery to protect privacy of parties and right to confidential

communication
iii. Does NOT block the facts, but merely protects certain parties
iv. Privileges must be asserted or they are waived
1. Intentionally waived, OR
2. Unintentionally waived: by disclosing information or acting inconsistent
with the
rd
privilege (telling a 3 party)
3. FR 26(5)(B) Claw-back provision: try to get back the document that
waived privilege
rights (party accidentally gave away)
v. LIMITS: If information is unreasonably duplicative, can be obtained
elsewhere more easily, or if
the other party had ample opportunity to discover and did not, or if the
burden and expense less than likely benefit
1. EXCEPTION: If a party shows good cause, the court can grant broader
discovery of subject matter in controversy
c. Work Product/Trial Preparation Materials [FR 26(b)(3)]: Material
prepared in anticipation of litigation; created by party or its representatives.
(Federal Courts do not limit this to solely attorneys, States differ)
i. LIMIT: If the other party shows substantial need and cannot, without undue
hardship, obtain equivalent information, judge can order disclosure
1. BUT: Mental impressions, conclusions, opinions and theories regarding the
case are always protected

24

ii. Hickman v. Taylor: Attorney interviewed crew members after boat sank, D
requested transcripts and P refused under 26(b)(3)
1. Court sided with P because D could interview the crew members
themselves (no showing of necessity)
d. Trial Prep Experts [26(b)(4)]: Experts may be deposed after submitting
report i. Communications and drafts are protected
e. Non-Testify Experts [26(b)(4)(D)(ii)]: The facts or opinions of nontestifying experts developed in preparation for litigation may only be
discovered with a showing of exceptional circumstances (If a party has
opportunity to obtain info and they do not, they cannot depose non-testifying
witnesses)
i. Thompson v. The Haskell Co.: employee was sexually harassed and went to
a psychiatrist, Ps motion to compel witness was granted because time has
passed between incident & pleading so they have no other way to get the
information about the emotional trauma
f. Unintentionally disclosed [FR 26(b)(5)(B)]: Inadvertent disclosure isnt
waiver if party took reasonable steps to prevent disclosure and then to rectify
the error
i. Party must ask receiving party to immediately return, sequester, or destroy
the privileged document and they may not use the document until the claim
is resolved
g. Proportionality: Even if something is relevant and not privileged, might
be part of a huge mass of information and not worth getting into (Aubuchon)
i. If ESI is reasonably accessible, it is disclosable or discoverable
ii. Requested party can assert that ESI is not reasonably accessible because
of undue burden or

expense
1. On motion to compel, requested party must show that ESI is not
reasonably accessible
2. If undue burden on requested party but good cause for request, can order
cost-shifting
iii. FR 37(e) Safe Harbor: Bars, absent exceptional circumstances, sanction for
the loss of ESI due to routine, good faith operation of an ESI retention
program
Motion to Compel [37(a)]
o If party refuses to answer discovery requests, requesting party can file a
motion to compel
o Sanctions: Dismissal of case (P sanction); Prohibit use of defense (D
sanction, if documents are missing,
court prohibits raising any defense they may have indicated); contempt (both
requires bad faith)
DISCOVERY POLICY
III.
1.
Work product
a. Would interfere with confidentiality of trial preparation
b. Would be difficult to separate factual information in trial preparation
materials from the thought
processes of the lawyer who developed them
i. Could reveal legal theories, evaluation of witnesses, and plans for trial and
settlement
c. Could lead to riding on an adversarys coattail in preparing for trial by
allowing opposing counsel to do all the work
d. Lawyers could end up as witnesses in their own cases if the statements
they produced contradicted other testimony
TOOLS OF DISCOVERY
FR 30: Depositions by oral examination (can be used for both parties and
non-parties who are subpoenaed)
FR 31: Written depositions (#rare) Poor mans deposition device because no
opportunity to ask follow-up questions FR 32: Using depositions in court
proceedings
FR 33: Interrogatories to parties (only parties)
FR 34: Producing documents, electronically stored information, and tangible
things (can be used for both parties [under 34(a) and (b)] and non-parties
who are subpoenaed [under 34(c)])
FR 35: Mental and physical examinations (can be ordered of a party or
somebody in the partys custody or legal control) FR 36: Request for
admissions (only parties)

25

2.
3.
4.
5.
6. 7.
IV.
1.

2.
1.
Depositions (FR 30): Oral questions of parties to the suit. No judge, but
recorded by transcript
a. Critical but expensive; free lawyers from some constraints no objections
(but may not be included at
trial); better than interrogatories
b. Limits: No more than 10 allowed by a party, cannot last longer than 7
hours, only allowed a second
deposition with courts permission
c. When answering:
i. Allowed to object if outside the scope of knowledge (must then be
answered later) ii. Must answer if information was readily available to all in
the organization
iii. If not well known, need to ask person designated as company officer
iv. May ask for additional time if party was uncooperative or disposition
impeded
d. FR 32: Specific provision to ensure compliance, depositions may be used a
trial to impeach testimony
Interrogatories (FR 33): 25 written questions used for disclosure of routine
information. Answers are in writing and under-oath
a. Questions written by lawyers, cannot follow up evasive answers, cheap but
of limited use for mostly background information; Can only ask parties of suit
to respond to interrogatories
b. Cannot ask contention interrogatories (aka are you liable for this tort?)
Request for admissions (FRCP 36): Similar to interrogatories, used to
eliminate essentially undisputed issues
a. Party is forced to admit or deny any discoverable matter
b. D is incorporated in WA, car is registered to P, etc.
c. FAILURE TO DENY = ADMISSION
Request for documents (FR 34): Tangible evidence and electronic evidence
(broad scope)
a. If electronic data is relevant, it should be produced (presumption is to limit
it)
b. Parties should determine the type of document production that is best in
the pretrial conferences or
initial disclosures
c. Cannot request documents before disclosures required in 26(a)
d. Must be produced as they are kept in the usual course of business
(organized)
Request for mental or physical exam (FR 35): Courts only allow with a
showing of good cause
a. Special protection because of invasiveness (limits discovery), could
otherwise be used as a tool of
harassment
b. Must have a court order, can only be ordered of a party or person under
control/custody of party
Information from non-parties [FR 45(a)(1)(c)]: Subpoena for deposition or
non-party does not have to attend Alternatives to formal discovery:
Investigation, informal talks/interviews with friendly witnesses, surveys,

Internet
LIMITS IMPOSED BY COURT
Protective Orders [26(c)]
a. Court may protect (make non-discoverable) evidence that:
i. Might embarrass, oppress, annoyance, or unduly burden or expense a party
AND if It outweighs its potential value
1. If a party wants to object, must do so in a timely matter or objection is
waived
2. Gives judge power to prevent abuse by parties
b. Stalnaker v. Kmart Corp: P sues for sexual harassment, requests testimony
from other employees (nonparty witnesses) about Ds conduct; D files 26(c) motion & grants limited
discovery can not ask about
relationships, but can ask about harassment
Sanctions [26(g)]: Affirmative duty to engage in pretrial discovery in a
responsible manner
a. Certification: mist sign a letter saying that disclosures are complete,
correct, consistent with the law, & not unreasonable or unduly burdensome
b. Deterrent to excessive discovery (tougher than FR 11) 26
FR 26(c) + (g)+ (b)(1): Limits on discovery
FR 5(d)(1): Required Filings
FR 37(a)(3)(b)(iii): Compel disclosure of discoverable information FR 37:
Spoliation
3. FR 26(b)(1): Limits material discoverable to matters relevant to a claim or
defense
4. FR 5(d)(1): Forbids parties from fulfilling many discovery responses until
they are filed at the court
a. Courts were running out of space to hold everything
5. Compel Disclosure of Discoverable Information [FR 37(a)(3)(b)(iii)]:
Parties must show good faith effort to find
information. Otherwise, will be treated as contempt of court.
6. Spoliation (FR 37): parties have a duty to not destroy, materially alter
evidence, or fail to preserve property for
anothers use as evidence in pending litigation or foreseeable litigation.
a. Federal power of spoliation comes from the court, not substantive law
b. Scope: anyone who anticipates being a party must not destroy unique,
relevant evidence
c. Duty to preserve extends beyond period of the lawsuit
i. Silvestri v. General Motors: product liability action against GM for airbag,
but D never got to look at the car, P did not preserve it & argues he didnt
have to because there wasnt yet a lawsuit; Case dismissed b/c of spoliation
(bad faith & prejudice to D)
d. Adverse interference: Jury infers from the facts that evidence that is
missing would be favorable to the opposing party
i. Zubulake v. UBS Warburg LLP: Z sues for gender discrimination, evidence
she needs is in emails, some are missing; asks for adverse interference
instruction 3 part test:
1. 2.
(1) Does party have an obligation to preserve? [Yes] (2) Were the records
destroyed with a culpable state of mind/gross negligence? [Yes] (3) Was the

destroyed evidence relevant? [No info in multiple places]

TF no adverse interference instruction

RESOLUTIONS
FR 55: Default Judgment
FR 56: Summary Judgment; FR 56(c)(4): Affidavits; FR 56(d): Premature
Motion FR 50: Judgment as a matter of law
FR 59: New Trial
FR 60: Proper notice & reopening suits
I. PRE-TRIAL ADJUDICATION
a. Default Judgment FR 55(a): When D does not respond to complaint
i. Allows a court to rule for moving-party because the non-moving partys
failure to plead or defend claims
1. FR 55 is a judgment on the merits (LIMIT: Appealable)
ii. LIMIT: Default cannot be entered (or is not valid) if D has not received
proper notice
1. FR 60: A D who did not receive proper notice can reopen the suit
2. Can be set aside for good cause (FR 55(c) and FR 60(b))
a. Court does not want to reward winners by technicality
II. BEFORE DISCOVERY
a. FR 12(b)(6): Failure to state a claim upon which relief may be granted
i. Assume all facts put forth by P are true, look only at the complaint
(Iqbal/Twombly standard) 1. Ignore conclusions of law, and look only at the
allegations of fact to see if they state a
plausible claim
III. AFTER DISCOVERY
a. Summary Judgment (FR 56) Want to weed out cases that do not need a
trial; Judge makes decision based
on evidence, not pleadings (though pleading can be relevant if it contains an
admission that D failed to deny)
i. FR 56(a): Allows dismissal of a suit to be granted when the record shows
that there is no genuine
issue as to any material fact (facts are not disputed) and entitled to
judgment as a matter of law
ii. Court reads evidence in light most favorable to the non-moving party

27

iii. Higher standard than 12(b)(6): Look outside complaint to see if there is
support for the facts (affidavits/documents/depositions) complaint and
pleadings DO NOT count as evidence unless they contain admissions
iv. Twiqbal made FR 56 easier for D by raising standard of proof in pleading
stage
1. P must prove evidence establishes every element of the claim
v. How much evidence is enough to create a disputed fact?
1. Courts generally dont weigh the strength of the evidence, pretty much
any evidence will
create a dispute of fact (very subjective)
vi. Affidavits [FR 56(c)(d)]: Written document of testimony by affiant, cannot
be used at trial because it
is hearsay affiant must testify in court
vii. Premature Motion [FR 56(d)]: Party can file for SJ at any time (must be 30
days before trial); don't

want to file too early court may defer judgment until more discovery
viii. FR 56(e): Responding party must come forward with specific facts
showing there is a genuine issue
for trial
ix. POST-CELOTEX: Merely needs to point out that moving party has no
evidence supporting an
essential element
1. Burden of production at SJ the same as it is at trial
a. What happens if the party without burden of production at trial moves for
summary judgment?
i. Can put in positive evidence on issue for which it doesnt bear the burden
ii. May also point to absence of evidence that suggests that party with burden
couldnt put in enough information to enable a rational jury to come out in
movants favor
1. Party moving for SJ (that doesnt have burden of production) doesnt have
to put on evidence proving the negative (Celotex); Can put on positive
evidence but doesnt have to could just show that there is no evidence by
which nonmoving party could satisfy burden
2. Burden irrelevant on issues of law: Burden is only a consideration when
there is a genuine dispute as to a material fact and the resolution of the facts
in the case would have to go to the jury
x. LIMIT: Appealable and often doesnt work (lower judges dont want to be
overturned) IV. DURING TRIAL/AFTER TRIAL
a. Judgment as a Matter of Law (JMOL) (FR 50)
i. FR 50(a): Dismissal because party has not presented a case that would
permit a jury to decide in his
favor no legally sufficient evidentiary basis 1. Must be filed before the
verdict
a. FR 50(a)(2): Cannot be filed before opposing party has been heard in court
2. Renewed JMOL Post-verdict motion (FR 50(b)): If you filed under FR 50
before verdict, you
may ONLY THEN renew the motion after trial. Must file within 28 days
a. Courts may then: (1) allow judgment on the verdict, (2) order a new trial
(FR 59), or
direct the entry of judgment as a matter of law
b. Want to make sure non-moving party was on notice
c. Formerly judgment not withstanding the verdict (JNOV)
3. Lind v. Schenley Industries: P wins suit claimed he had oral contract with
his boss to get a raise, D moved for JNOV (judgment not withstanding the
verdict), and in the alt, a new trial granted by court
a. Overturned: easy case, TJ inserting his opinion by granted JNOV ii. Party
lacked any evidence supporting a necessary element of the claim or defense
1. Reasonable minds could not differ
2. No need for a jury to assess credibility or weigh evidence (facts are not in
dispute)
3. Judge may let iffy issue go to jury early on in trial to see if party with
burden can put on
evidence

28
iii.

iv. v.
a. If they cant, then judge can grant JMOL
b. Do this so that if loser appeals, and court of appeals agrees with appellant,
then at
least theres a jury verdict to fall back on and wont have to conduct an
entirely new trial
Application
1. Court should review all of the evidence in the record, but then winnow
down the issue to
evidence that favors the non-movant, plus what the non-movant put in
trying to prove the negative (Reeves)
a. Court should also give credence to evidence favoring movant that is
uncontradicted and unimpeached (Reeves) At least to the extent that
this evidence comes from disinterested parties
Why not use SJ before trial?
1. SJ was not applicable before, trial does not go as planned, nature of the
evidence changed
at trial (witness didnt show up, etc.)
When facts give equal support to 2 inconsistent inferences, then JMOL must
go against the party who had the burden of proof
1. Penn. Railroad v. Chamberlin: death of brakeman allegedly caused by fall
from cars colliding, witness testimony says otherwise; D files JMOL granted;
P had the burden of proof
2. Norton v. Snapper Power Equipment: Ps fingers cut off by lawnmower,
faulty device jury found for P, D moved for JNOV & won but appeals
overturned because it was an abuse of discretion (jury could have reached
that conclusion)
b. FR 60 Relief from judgment: Come back after denial of FR 50(b) up to a
year after everything in trial court is over
i. Generally hard to get because of high value placed on finality, but
permitted on some grounds like clerical errors, new evidence, etc.
JMOL POLICY
1. Why require motion before jury decides?
a. Alert the court and the opposing party to the defects in that partys case
before the jury has decided,
while there is still time to offer further evidence to cure the defect
i. Prevents sandbagging by raising defects in the opponents evidence after
the jury has been
discharged, when its too late to cure those defects 2. Why wait until after the
jury has entered a verdict?
a. If appellate court concludes that the evidence was sufficient to send the
case to the jury, it will reverse the judges entry of judgment and order a new
trial Better to have jurys answer and avoid having to repeat an entire trial
V. AFTER TRIAL
a. New Trial (FR 59(a)(1)) Made by party within 28 days of entry of
judgment OR Judge can order it (sua
sponte)
i. For any reason for which a new trial has been granted in action at law in
federal court; Have to look
to history because rule doesnt specify grounds for granting a new trial 1.

Flawed procedures: Process leading up to verdict is flawed

a. Prejudicial remarks/evidence, incorrect instructions, misbehavior 2. Flawed
verdicts: Result of the verdict is unjustifiable
a. More controversial
3. Conditional new trials
a. Limited to damages: No influence to verdict, just to damages awarded
b. Remittitur: Have party agree to reduce damages instead of granting a new
trial
c. Additur: Increase the amount of an inadequate award made by jury verdict,
as a
condition of a denial of a motion for a new trial, with the consent of D (not
allowed
in federal system; see Dimick)
4. Factors to consider

29

a. Granting motions for new trial because of weight of evidence is more

controversial than granting on procedural grounds
b. Judge should scrutinize verdicts more in complex cases
5. 7th Amendment: No fact tried by a jury shall otherwise be reexamined in
any court of the
US prevents judge from overturning a verdict b/c they would have decided it
differently if
they were on the jury ii. FR50v.FR59
1. FR 50: Party has no evidentiary support for at least one essential element
of claim/D
2. FR 59: Begins the contest again lower standard than FR 50 since rather
than granting
victory to opposing party, simply takes away victory from winning party

PART III: TRIAL

RELIEF: Damages (how do we value injury? v. Injunctive relief (stop it.) v.
Declaratory judgment (statement that rights have been violated) Damages
= Law Remedy, Injuction = Equity Remedy
1. Jury Instructions (FR 51)
a. Filed at the close of evidence or at any earlier reasonable time that the
court orders
b. Explain substantive law, written for jury and appellate court (so they wont
overturn)
c. Often, juries do not get a copy but it is read to them
d. FR 51(c-d): Objection to instructions
i. Trying to give court opportunity to correct mistake before case goes to jury
and its too late ii. Party can assign as error an instruction given only if party
properly objected; If party fails to
object, then they cant present that issue via post-trial motion or on appeal
because it was not
properly preserved
e. Improper Influence
o Damages (How do we value injury?)
o Injunctive Relief (Stop it. Stop what you are doing. Right. Now.)
o Declaratory Judgment: Declaration that rights have been violated, often

given if IR is not

THE JURY
1. Right to a Jury Trial (FR 38): Declared by 7th amendment and is
available on demand Federal Civil Court
a. Party waives a jury trial unless its demand is properly served & filed
(must request jury)
i. Demand can be included in the pleadings or filed separately
ii. Lutz v. Glendale Union High School: If you waive jury, cant amend claim
and renew right to jury
b. 7th Amendment: Right of trial by jury shall be preserved and no fact tried
by a jury shall otherwise be reexamined Does not create, but preserves,
right to jury for law, but not equity
i. NOT APPLICABLE TO STATE COURTS they have not embraced civil juries
well
ii. Old rule was if mixed law and equity claims, whichever issue predominated
decided whether jury
or not, now it is issue by issue within overall claims
c. Terry Test
i. Is the claim asserted analogous to the claim that existed at common law in
1791? 1. Almost always yes
ii. Focus on the remedy sought by the plaintiff
1. Makes a difference between remedies at law (damages) and remedies at
equity
FR 38: Right to a jury trial
FR 48: Number of jurors
FR 51: Jury instructions
FR 47: Jury selection (Vior dire, preemptory challenge, excusing a juror)
d. Mixed Law/Equity

30

i. Determine jury right by issue, not by center of gravity (Dairy Queen)

ii. If issue of fact underlies both law and equity, jury is proper (Beacon
Theatres)
1. Judge still serves as fact finder for non-common issues
iii. Declaratory Judgment: Right to jury in a declaratory judgment action is
determined by the type of
action (legal or equitable) that would have been pursued in the absence of
the declaratoryjudgment device (see note 5 CB p. 273)
iv. Generally, try the jury issues first
1. In imperative circumstances, where equitable proceeding needs quick
resolution, a court might allow one side to bring in damages claim without it
having to go to jury trial (Katchen)
2. Qualifications
a. Congress put some areas of law (especially new regulatory areas) before
administrative agencies for
adjudication
i. When matter is adjudicated by agency, no jury involved (but still
constitutional)
1. Agency actions are reviewable in federal court, but not tried again judge
just reviews the administrative record and makes a legal determination

regarding the correctness of the agencys action

ii. Sovereign immunity: Sovereign can be sued only with its consent but not
otherwise only if Congress has consented to be sued by legislation can it be
sued
1. Congress has long consented for U.S. to be sued on breach of contract,
tort, etc, but has limited suits to trial without juries
3. Number of Jurors, Verdicts (FR 48)
a. Jury must have at least 6 (Colgrove v. Battin) and no more than 12
b. Verdict must be unanimous and returned by a jury of at least 6 members
(federal states differ)
c. Hung jury: if jury cant come up with a unanimous decision = redo trial in
front of new jury
i. Modern juries are supposed to know nothing about the case except what
they learn at trial
ii. Instructed not to discuss the case and decide based only on the evidence
4. Jury Selection
a. Vior Dire (FR 47): Courts or attorneys can examine prospective jurors
(discover biases that make them unfit,
and lawyers often use it to discreetly present their cases)
b. Preemptory Challenge [FR 47(b)]: allowed to dismiss jurors for no reason
(4x)
i. Essentially picking your jury
ii. Parties have a hunch about a juror that does not rise to the level of
challenge of cause
iii. Also might be someone that they offended through vigorous vior dire
questioning
iv. Batson Challenge (challenge dismissals)
1. Prima facie: preemptory challenge involved individuals of the same
race/sex
a. Burden on party exercising challenge to give non-discriminatory reason for
it
c. Excusing a Juror [FR 47(c)]: Challenge for cause
i. Court can grant motion if juror shows actual prejudice or bias, either by (1)
admission or (2) proof
that juror has close connection to the facts at trial that bias is presumed
(must be for good
cause)
ii. Thompson v. Altheimer: P lost racial discrimination case & appealed b/c
Juror Leiter should have
been struck from case (if correct, P gets a new trial); Juror owned small
business & said during voir dire that she would be biased against P case
was reversed (P gets a new trial

31

I.
When can you appeal?
Judges don't want decisions to be dismissed on appeal so they often dont
grant motions (favor P) Appeals depend on
o Must wait until case is over (final judgment)
o Losing party identifies an error & shows that the error resulted in an
erroneous outcome AND Standard of Review

II.
III.
misapplication of legal standard something that will have a broad impact
Final judgment (28 USC 1291)
a. A party can only appeal a final decision (cannot appeal interlocutory
rulings)
b. Final judgment: Decision that ends litigation on the merits and leaves
nothing for the court to do but
execute judgment
c. Difficult to pinpoint: too late (and miss deadline) or too early (often
dismissed)
d. POLICY: Avoid unnecessary appeals that burden the system
e. Liberty Mutual v. Wetzel: Appeal found for P (gender discrimination), SC
dismissed for lack of final
appealable order (DC did not enter final judgment on damages, only liability)
f. Exception: FR 23(f): Allows the court of appeals discretion to hear an
appeal of a class certification ruling
a. Certification of certain issues for interlocutory appeal g. Exception:
Injunctions [1292(a)]
a. Can appeal interlocutory order of DC granting, modifying, refusing, or
dissolving injunctions (trials take a long time, can burden parties by waiting)
h. Exception: FR 54(b): Trial judge can expressly treat a judgment as final for
that claim or party
a. Only available with case with multiple claims or multiple parties Trial judge
can expressly treat a
judgment as final for that claim or party
i. Exception: Collateral Order Doctrine Involves a controlling question of
law where there is a substantial
ground for difference of opinion and that an immediate appeal from the order
may materially advance the termination of litigation; Issue is collateral to the
merits of the case
a.

i. ii.
b.
i.
Deferential review
Findings of fact by judge and jury
Trial judges rulings on any matters of pretrial and trial management (e.g.
discovery matters)
a. Trial judge better equipped to make credibility determinations and
judgments about the behavior of the parties and developments on the ground
Abuse of discretion
1. Not supposed to reverse unless court of appeals thinks trial judge was
outside appropriate
range of discretion
De novo
Asking whether the trial court got it right or wrong
1. Will come into play where its especially important to have uniformity, like
with confusion or

APPEALS
28 USC 1291: Final judgment
28 USC 1292(b): Interlocutory appeals collateral final orders 28 USC
1292(a): Injunctions (appeals)
FR 52(a): Scope of Review
Motion
Granted
Denied
Motion to Dismiss (FR 12)
Appealable
Not Appealable
SJ (FR 56)
Appealable
Not Appealable
JMOL (before verdict) (FR 50(a))
Appealable
Not Appealable
JMOL (after verdict) (FR 50(b))
Appealable
Appealable

32

IV.
a. Ex: Qualified immunity for government officials (allowed to appeal right
away so as not to interfere with duties)
b. No real clarity between non-appealable, non-final orders and those that are
appealable and not final
c. Test: Entitlement to avoid suit (v. other types of entitlements like to only
be sued in a particular
forum)
d. Lauro Lines v. Chasser: Cruse ship hijacked, P sues for damages in NY,
tickets had a forum selection
clause that mandated they be sued in Italy and D moved to dismiss based on
the forum selection, SC held that a forum selection clause is not a decision on
the merits that is immediately appealable - essentially ruling that forum
selection clause is not important enough that it needs to be protected/falls
under collateral order doctrine
Scope of Review
a. Finding of fact, whether based on oral or other evidence, must not be set
aside unless clearly erroneous (appeals is left with definite & firm conviction
that a mistake has been made)
b. Trial judge determines the facts of the case & holds an important position
because they are present for testimony & case proceedings
a. TF he is right unless there is a powerful reason for thinking he is wrong
b. Empirical belief that trial judge is more likely than appeals court to be
correct in his judgment
c. Anderson v. Bessemer City: DC found discrimination under title VII (gender
discrimination); appeals reversed
b/c clear error (erroneously found discrimination); SC reversed DC is
correct, appeals erred by not allowing the DC to interpret & discern the
credibility of oral testimony

RES JUDICATA & COLLATERAL ESTOPPEL Preclusion

Doctrines
b. Res judicata (Claim Preclusion) CB: 330
c. Collateral estoppel (Issue Preclusion) CB: 338;348
d. - Bars bringing the same CLAIM (cause of action with the same operative
facts) more than once
e. - Broader
f. - Same party + same claim + final
judgment on the merits
g. - Can SOMETIMES bar related claims
as well (Frier)
h. - Bars relitigating the same issue (single piece of a cause of action)
i. - More narrow
j. - Requirement is that the issue was litigated &
necessary to the judgment
k. - Can decide a case on the merits that does not
decide an issue
I.
28 USC 1738: Full Faith & Credit Act, requires all courts in the US to treat a
state court judgment with the same respect that it would receive in its state
of origin Apply preclusion law of the system where case A was decided
CLAIM PRECLUSION (res judicata): Forbids a party from litigating a claim
that was, could, or should have been raised in former litigation. Can only sue
once on a claim. Case A precludes Case B if...
a. Same party (or those in privity) in case A and B in the same configuration
(C v D and then D v C not okay)
b. Same claim or claim arising out of common set of operative facts (mirrors
joinder rule)
i. Primary rights (minority view): Have a different claim for each right invaded
c. Final judgment on the merits (cannot be based only on procedural
ground such as jurisdiction, venue, etc.)
i. Federal court may not give claim preclusive effect to a prior judgment by a
state court upon a cause of action which the state court had no SMJ
ii. FR 41(b): Every judgment is on the merits, unless its based on
jurisdiction, venue, or indispensible parties
d. Gargallo v. Merril Lynch: Suit brought in Ohio state court about federal
securities was dismissed w/ prejudice, G then refiles in federal court full
faith & credit would bar the claim BUT state court never had authority to hear
case SO no RJ
i. For federal claims: preclusive effect of a 12(b)(6) dismissal bars not only the
claim pleaded but all claims arising from the same transaction or occurrence

33

e. TEST:
i. Is this the same transaction or occurrence?
ii. Was there a final judgment in the first suit?
iii. Were the parties or parties in privity the same?
iv. Was the issue in the first case competently, fully, and fairly litigated?
f. RJ bars claims that are also closely related if the common core of operative
facts is the same

i. Frier v. City of Vandalia: Parked car on the street & got towed, had day in
State court with replevin
action, then filed a due process claim in federal court arising from same T/O.
Fed court: RJ applied, full
faith and credit
g. Unlitigated claims can be precluded (BUT dont overstate principle)
i. Must have been a claim at the time of the first suit
ii. If first judgment lacked jurisdiction over precluded claim, they can refile
h. Goals: Efficiency & consistency
i. People can & should combine suits arising from the same operative facts
ii. BUT dont necessarily all get tried in the same suit
iii. 42(b): gives court authority to sever claims for trial
i. Adequate representation
i. Interests of the non party & party are aligned
ii. Either the party understood herself to be acting in a representative
capacity (not nec. legal), or the court took care to protect the interests of the
non party
j. Virtual representation: Too broad of a claim preclusion standard party
has a right to know when its interest are being litigated & may be precluded
in the future
i. NOT an accepted form of privity
ii. Taylor v. Sturgell: Herrick requested documents about plane from FAA (SJ),
Taylor refilled same
request and got SJ again remanded
iii. If VR were allowed, it would allow preclusion based on identity of interests
& some kind of
relationship between party & nonparty
k. Due process (must be allowed day in court) v. stare decisis (precedent)
i. Burden imposed upon hearing similar cases, but it is not a big burden
l. Connection between RJ & notice, tied together by due process
i. Mulaney v. Hanover: what notice is required interests are similar &
therefore will be represented by those they actually get in touch with
II. ISSUE PRECLUSION (collateral estoppel): Some issue involved has been
litigated previously
a. Prevents inconsistent judgments on the same issue; Promotes judicial
economy
b. Can include people who werent parties but were so closely connected it is
appropriate to treat them as if
they were
c. TEST: If an issue of fact or law was decided in case A, that issue cannot be
relitigated in case B if the issue
was...
i. (1) An issue of fact or law (2) actually litigated and determined by (3) A
valid & final judgment AND
(4) The determination of that issue was essential to the judgment, the
determination is conclusive in a subsequent action between parties, whether
on the same or a different claim, and (5) The party burdened with the issue
preclusion have had an adequate opportunity and incentive to litigate the
issue in the earlier proceeding
ii. (2): Problem with jury trials because it is hard to determine if the actual

issue was determined

1. Illinois Central Gulf Railroad v. Parks: no way of knowing how jury came to
their conclusion, TF
nd
2 suit has no CE or RJ
Jessie & bertha both injured in car accident, Bertha sued for her injuries
and Jessie sued for
damages b/c of Berthas loss of services
nd
nd
o Jessie files 2 suit for his own damages - strategic to hold back 2 suit
2 bites of the apple
o BUT case arose out of the same operative facts? Subjective standard
d. Mutuality: Case A & B involve the same party (uncontroversial) 34
e. Non-mutual: Case A & B involve different parties (controversial)
f. Defensive CE: less controversial, used to defeat a cause of action this is
fair because D already had a full &
fair opportunity to litigate
i. D B&C harms P A
ii. Case 1: A sues B, A loses because A was not injured
iii. Case 2: A sues C, C can assert CE defensively against A
iv. Searle Brothers v. Searle: house given to wife in divorce proceedings, but
sons share interest in the
property with father through a partnership, defensive CE failed because the
sons were not bound by
the previous judgment b/c they did not have a chance to litigate
g. Offensive CE: more controversial, used to establish a cause of action USE
FAIRNESS TEST
i. D B hurts P A&C
ii. Case 1: A sues B, A wins
iii. Case 2: C sues B, C can use CE offensively against B (b/c the issue was
decided against him in case 1)
iv. Unfairness: If A wins, C can free ride and assert CE, If A loses, C is not
bound by judgment and has
another shot at wining against B
1. Motivation to bring separate claims b/c you can free ride, get another shot
v. Trial court has BROAD discretion to determine when offensive CE should be
applied
1. Parklane Hosiery Co. v. Shore: stockholder class action officer had issued
materially false and misleading proxy statement regarding a merger, P used
offensive CE against D regarding the issue of if proxy statement was false b/c
this was decided in a previous case
vi. FAIRNESS TEST
a. Full chance to litigate issue in previous case
b. Multiple lawsuits were foreseeable
c. New party couldnt have joined easily in first case (maybe geographically
inconvenient)
d. There are not inconsistent judgments (probably most important)
h. Where inconsistent determinations result in prior suits on issue, the
application of CE would most likely be unfair (regardless if it undermines
judicial consistency)
i. Suit 1 & 2 come out differently = No CE

ii. State Farm Fire v. Century Home: 48 cases consolidated for CE hearing, D
appeals from 13 actions
about damages from a fire at their warehouse b/c he was CE from contesting
liability but the cases
had inconsistent rulings D is allowed to relitigated the issue of liability
i. When should issue preclusion not be allowed?
i. Courts must have a way out of former decisions if substantive,
constitutional law changes or if there is a history of inconsistent prior
decisions
ii. The parties did not have the ability to amend or appeal, change in
substantive law, difference in forum or procedures in courts, change in
burden for a party or risks involved
iii. Problem: discriminatory nature of the return of the ticket money was never
litigated, which was Ps claim public policy justification.
FR 49: Special Verdict: ask for more detailed description of what issues were
decided on
III. Inter-jurisdictional preclusion: When second litigation decided in
different forum than first, related litigation,
then second forum (F2) is supposed to apply preclusion law that would
govern in courts of system that rendered the first judgment (F1)
I. E.g. What is F1 (federal court) and F2 (federal or state court)?
i. If first action about federal law matter, then federal common law that
applies is
supposed to be the uniform federal common law of preclusion What
SCOTUS and
other federal courts have said should be the law RE: preclusion
ii. If first action about a matter of state law, then usually federal common law
of preclusion
to which F2 must look is the borrowed preclusion law of the state where
the federal
court rendering the first judgment sat
IV. Blocking Collateral Attack: In defense of RJ
a. Doctrine of finality: Former adjudication (Article IV State courts must
recognize sister-state judgments) + full faith & credit (28 USC 1738 - full
faith & credit)

35

i. Effectively makes final judgments ACTUALLY final

ii. BUT has the potential to lead to injustice if they perpetuate Ds
fraudulent concealment of
evidence
b. EXCEPTION: Can always collaterally attack a judgment on the grounds that
the court lacked jurisdiction to
hear the case
i. Gargallo: decisions from states that declare judgments but lack SMJ are still
subject to attack at
anytime (w/o SMJ, holding is not valid) c. EXCEPTION TO THE EXCEPTION:
i. Baldwin: Party who appears and argues lack of PJ is bound by the courts
decisions about the jurisdiction
ii. Durfee: judgment is entitled to full faith and credit (even to question of
jurisdiction) when the second courts inquiry disclosed that those question

have been fully and fairly litigated and finally decided in the court which
rendered the original judgment
P brought action in Nebraska to quiet title to land on the Missouri river,
ruled land was in Nebraska
Opponent then brought the same suit in Missouri RJ, bound by decision of
Nebraska court
d. LIMIT: If you do not appear you can raise a collateral challenge to PJ, but
this is not certain for SMJ
IV. Reopening Judgments as Alternative to Collateral Attack
a. 60(b): Opportunity to re-open a suit because of a special circumstance
b. 60(b)(2): Can open a case within 1 year of conclusion if new evidence is
discovered
i. defines the line between finality of adjudication and the sense that an
injustice has occurred
ii. US v. Beggerly: govt was assembling land for natl. seashore, P said he
owned the land but had no
deed case settled. 12 years later, found record that the land was privately
owned in the national archives suit was NOT reopened because the
information was available to both parties at the time of the original suit, TF
the judgment was not a grave miscarriage of justice that required departure
from doctrine of RJ
b. 60(b)(3): can reopen if a party misrepresents (lies, hides info, fraud) during
the suit i. OTHERWISE very limited. Must be exceptional situation.
c. EXCEPTION: Default judgments [55(a)] are much easier to reopen because
they were not decided on the merits
ISSUE PRECLUSION POLICY
1. Potential problems with nonmutual issue preclusion
a. D didnt choose the forum in the first case
b. May encourage Ps to wait and see instead of joining
c. D may not have litigated aggressively in the first case OR may lead D to
over-litigate issues for fear of
issue preclusion in later action
d. Procedural rules of the court in the first case may have been more
restrictive than would be in the
second case
e. Generates additional litigation about the preclusion issue itself
Settlement
a. Judicial authorization
a. (FR 16) Express authorization for judges to talk to parties regarding
possibilities for settlement
b. Not the only pretrial disposition
a. A lot of cases disposed of by settle, but also by: pretrial motions, summary
judgment, sanctions
motions, default judgment
c. American rule: Pay your own lawyer, win or lose
a. 1920: Prevailing party entitled to non-fee costs
b. Prospect of having to pay high attorney fees often narrows gap between
the parties at the
settlement table

36

c. Maybe encourages access to justice? People not discouraged to pursue

litigation on the prospect of losing
d. Exceptions to American rule
a. Statutory: Sometimes provide for prevailing party or prevailing P to recover
attorney fees
i. Fee-shifting provision of Civil Rights Attorney Fees Act (Marek)
b. By contract (contracts of adhesion)
c. Decision (sanction for bad faith)
Formal Settlement Offers (FR 68)
a. FR 68(4): A party defending against a claim can serve an opposing party
an offer saying he/she/it is willing to
have a court enter judgment against it in amount specified in offer
b. FR 68(d): If offeree doesnt accept offer, but also doesnt end up doing
better in court, then offeree is liable
for offerors post-offer costs
a. When fee-shifting statute in the case, P also loses entitlement to post-offer
fees (and costs) *Civil
Rights Attorney Fees Act, 1988(b), Marek)
b. P liable for Ds post-offer attorney fees? Unsettled
i. Not before court in Marek; Most courts say P is not liable for Ds post-offer
fees because would go against general interpretation of fee-shifting statutes
like CRAFA
ii. General interpretation of 1988 in Christiansburg: Losing P not liable for Ds
attorney fees unless Ps claim was frivolous, unreasonable, or groundless
c. Where D just plain wins, FR 68 not in the picture
i. Just the usual FR 54(d)(1)
Alternative Dispute Resolution
a. Arbitration: Federal Arbitration Act
a. Enacted in 1920s to overcome then judicial hostility toward arbitration
b. Agreements to arbitrate are valid, irrevocable, and enforceable, save upon
such grounds as exist at law or in equity for the revocation of any contract
(AT&T Mobility v. Concepcion)
a. Arbitration agreements can only be invalidated by generally applicable
contract defenses like fraud, duress, or unconscionability
i. But a states contract defenses cannot discriminate against arbitration
contracts; Cant use unconscionability doctrine to strike down an arbitration
provision or a whole arbitration agreement just because it contains a class
action waiver (Concepcion)
ii. After Concepcion, can be valid class arbitration waivers, but still room for
general contract defenses to other arbitration provisions or aspects of
arbitration agreement

37