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CIVIL PROCEDURE OUTLINE-2014

I. Phases of a Lawsuit
A. Disclosing Matters in Dispute
1. STATING THE CLAIM
a) Rule 3 An action is commenced by filing a complaint with the court
b) Dividing Burden of Allegation
(1) Form 9 Complaint for Negligence
(a) Plaintiff required to assert matters in if clause
(b) Defendant required to assert matters in unless clause
(c) If defendant fails to assert matters in unless clause contributory negligence will not
be an issue in case
(2) Disclosing the facts ? ? ?
(a) Party whose case the fact is essential
(b) Party with burden of proving that fact
(c) Party who has special way of knowing that fact
(3) Rule 8(c) Affirmative Defenses
(a) If a party doesnt assert a defense then they waive it
c) Particularity of Allegations
(1) Rule 8(a) Claims for Relief . . . shall contain:
(a) A short and plain statement of the claim showing that the pleader is entitled to relief
(2) Rule 8(e)(1) each averment to a pleading must be simple, concise, and direct.
(3) Sierocinski v. E.I. Du Pont de Nemours & Co. 1939, p. 38
(a) Dynamite crimping statement of claim
(b) Plaintiff alleges he was injured by the premature explosion of a dynamite cap
(c) Complaint dismissed failing to set forth any specific act of negligence
(d) Defendant argues not put on notice by complaint as to whether it must meet:
(i) a claim of warranty
(ii) of misrepresentation
(iii) of the use of improper ingredients
(iv) of faulty inspection

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(e) Judge found:
(i) Plaintiff need not plead evidence
(ii) Short and plain statement of relief Rule 8(a)
(iii) Simple, concise, and direct Rule 8(e)(1)
(iv) Form 9 model of negligence pleading quotes Rule 84 selectively
(f) Rule Beginning of notice pleading in Federal Courts pleading with simplicity and
brevity
(4) Notice Pleading v. Code Pleadingmust assert more factual information in Code Pleading
(5) Conley v. Gibson 1957, p. 39 US Supreme Court
(a) Black members sue union discrimination statement of claim
(b) Black members want union to represent them without discrimination
(c) Complaint alleged the union had not done so
(d) Defendant contention plaintiffs failure to set forth specific facts to support the
general allegations of discrimination
(e) Court found:
(i) A claim should not be dismissed unless it appears beyond doubt that the plaintiff
can prove no set of facts which would entitle him to relief
(ii) Rules do not require a claimant to set out in detail the facts upon which he basis
his claim
(iii) Rules require short and plain statement of the claim
(f) Rule plaintiff can put forth facts in claim that would entitle him to relief without
evidence
d) Statements of Claim in the Alternative
(1) Rule 8(e)(2) plaintiff can submit all the claims he has
(a) Whatever pleaded version of the claim he may eventually establish to the satisfaction of
the adjudicator
(2) Res judicata prevents plaintiff from asserting multiple claims that arise out of the same
transaction (e.g., dynamite crimping)
e) What is a Claim?
f) Frivolous Lawsuits [Rule 11]
(1) Filings and allegations must have evidentiary support or are likely to have evidentiary support
(2) After Conley v. Gibson problem of frivolous claims blossomed
(3) Prior to 1983 attorney must affirm that he had done preliminary work to avoid frivolous suit
subjective standard
(4) 1983 Amendment
(a) Made determination objective
(b) Attorney must seek reasonable inquiry before pleading
(c) Attorney must investigate facts readily available
(5) 1993 Amendment
(a) Safe harbor provision must give offending party 21 day notice to withdraw or
amend to avoid sanctions

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(b) Continuing duty to withdraw frivolous claims throughout pleading process
(6) Mohammed v. Union Carbide Corp. 1985, p. 42
(a) Construction company looses contract with Union Carbide alleges libel and slander,
joining antitrust frivolous suit
(b) Summary judgment for the defendant on all counts
(c) Defendant moves to recover attorneys fees Rule 11
(d) Judge ruled:
(i) Rule states an attorney must make reasonable inquiry into the operative facts
and relevant law before submitting pleading.
(ii) Focus of court examine efforts undertaken by attorney to investigate claim
before filing
(iii) Plaintiff conceded he had no evidence that Gandol had uttered a slanderous
statement or published a libelous account concerning him
(iv) Plaintiffs attorney offered no evidence of inquiry argued he pursued claims in
good faith
(v) By definition charges of defamation are notorious, public acts
(vi) Attorney sanctioned for libel and slander claim but not antitrust
(e) Rule Counsel must make reasonable inquiry into the operative facts and relevant
law before submitting pleading
(7) Heimbaugh v. City & County of San Francisco 1984, p. 527
(a) Softball player protests a hardball only rule frivolous suit
(b) Plaintiff alleges he has been deprived of his rights under the 1st, 4th, and 14th
Amendments also, alleges numerous torts
(c) Judge found:
(i) Plaintiff unable to demonstrate an intent to convey a message, or
(ii) Evidence that if he were conveying message others would understand it,
therefore
(iii) Claim was entirely unwarranted by existing law or a good faith argument for
modification or extension of existing law
(d) Rule Claim must be grounded in existing law or present good faith argument for
modification or extension of existing law

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g) Pleading of Special Matters
(1) Rule 9(g) Special damages must be specifically stated in claim
(a) purpose protect defendant from surprise at trial
(2) Burlington Transp. Co. v. Josephson 1946, p. 495
(a) Doctor sues city for false arrest special damages
(b) In complaint plaintiff alleges false arrest necessarily compelled him to be away from his
business and suffered a large consequential loss
(c) Plaintiff testified he sustained large losses due to being away from remodel
(d) Judge found:
(i) Define special damages those which are the natural but not the necessary
consequence of the act complained of
(ii) he was thereby necessarily compelled to be away from his business specifies
only loss of time in the practice of his profession
(e) Rule special damages are those which are the natural but not the necessary
consequence of the act complained of
(3) Niedland v. United States 1964, p. 498
(a) Dancer hires substitute after car accident special damages
(b) Dancer alleges personal injuries after collision with Post Office vehicle
(c) Testified it was necessary to hire substitute
(d) Court found:
(i) Even under more generalized notice pleading, special damages must be
specifically pleaded
(e) Rule special damages must be specifically pleaded
h) Pleading Requirements
(1) Letherman v. Tarrant County Narcotics 1993, p. 21 of Supplement
(a) Two homes searched 4th Amendment pleading requirements for civil rights
(b) In one house a dog dies in the other the homeowner is assaulted
(c) 5th District ordered the complaints dismissed because of heightened pleading
requirements for civil rights suits
(d) Supreme Court finds:
(i) Federal Rules do not require claimant to set out in detail the facts upon which he
bases his claim
(ii) Must rely upon summary judgment and control of discovery to weed out
unmeritorious claims
(e) Rule Liberal notice pleading is acceptable in civil rights cases District Courts still
require detailed pleadings in civil rights cases, though
(2) Decker v. Massey-Ferguson, LTD. 1982, p. 510
(a) Stockholder alleges securities fraud heightened pleading in fraud cases
(b) Stock price goes from $20 to $3
(c) Stockholder alleges defendants:

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(i) Disseminated false and misleading information about the Company and omitted
material information from annual reports and SEC filings
(ii) Made wrongful foreign payments bribes
(d) Rule 9(b) Heightened pleading requirement for securities fraud fraud claims must
specify facts, cannot be based on conclusory allegations
(e) Court found:
(i) Without Rule 9(b) cases have a higher settlement value courts want to limit in
terrorem settlement value of cases many companies would prefer settle than
risk damaging their reputation
(ii) Only claim upheld was on wrongful bribes had sufficient facts to show fraud
might have occurred
(f) Rule Fraud allegations must be pled in detail
2. DEFENSES AND OBJECTIONS
a) Types of Defenses and Objections
(1) Reasons having no bearing on the intrinsic merits of plaintiffs claim:
(a) Rule 12(b)(1) lack of subject matter jurisdiction case cannot be maintained in any
federal district court
(b) Rule 12(b)(3) improper venue the particular district court selected by plaintiff as
place of trial is wrong
(c) Rule 12(b)(7) failure to join a party under Rule 19 there is another party who ought
to be joined before the action goes forward
(2) Assuming truth of allegations plaintiff has no cause of action:
(a) Rule 12(b)(6) failure to state a claim upon which relief can be granted demurrer
(3) Rule 8(b) Plaintiff does state a claim upon which relief can be granted defendant denies the
truth of one or more of the allegations:
(4) Rule 8(c) Plaintiff does state a claim upon which relief can be granted defendant asserts
affirmative defenses, for example:
(a) Statute of Limitations
(b) Contributory Negligence
(5) Rule 12 (e) Plaintiffs claim is too vague Motion for a more definite statement
(6) Rule 12(f) Pleading is objectionable Motion to strike for example:
(a) insufficient defense
(b) redundant, immaterial, impertinent or scandalous matters defendant wants removed
b) Manner of Presenting Defenses and Objections
(1) Rule 12(b)
(a) All defenses to a claim may be raised in the defendants answer
(b) Seven enumerated defenses may at the option of the pleader be made by motion
before answer
(2) Rule 7(b)(1) suggests that motion is an application to the court for an order
(3) Rule 12(e) & (f) may be made by motion before answer
c) Consolidation and Waiver of Defenses and Objections
(1) Consolidation of Defenses and Objections [Rule 12(g)]
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(a) Must consolidate all 12(b) defenses in one pre-answer motion only one pre-answer
motion claiming 12(b) defenses is allowed
(i) One exception 12(b)(1) lack of subject-matter jurisdiction may be raised at
any time [Rule 12(h)(3)]
(b) Waiver of Defenses and Objections [Rule 12(h)]
(i) Rule 12(h)(1) Rules 12(b)(2-5) are waived altogether if omitted from original
pre-answer motion:
(a) Rule 12(b)(2) lack of jurisdiction over the person
(b) Rule 12(b)(3) improper venue
(c) Rule 12(b)(4) insufficiency of process
(d) Rule 12(b)(5) insufficiency of service of process
(ii) Rule 12(h)(2) Rules 12(b)(1), (6), & (7) may be made in answer or in post-
answer motion:
(a) Rule 12(b)(1) lack of jurisdiction over the subject matter
(b) Rule 12(b)(6) failure to state a claim upon which relief can be granted
(c) Rule 12(b)(7) failure to join a party under Rule 19
(iii) Rule 12(h)(3) Rule 12(b)(1) lack of subject-matter jurisdiction may be raised
at any time
(2) Defenses properly raised by answer
(a) Rule 8(d) must deny all averments if no denial denial is seen as an admission of
guilt
(i) Rule 8(b) Typical answer has at end of every paragraph and the defendant
denies the remaining allegations of paragraph . . .
(ii) Rule 8(b) An answer that you lack knowledge has the effect of a denial
(b) Rules 12(b) & 8(c) any affirmative defenses omitted from the answer are waived
(c) Rule 15(a)
(i) amendments of course allowed on pleadings and answer before any
responsive pleading is filed or before action has been placed upon trial calendar
(ii) waivers may be alleviated by amendments of the answer by leave of court
(3) Objections under 12(e) & (f) must be raised in initial pre-answer motion
(4) HYPOTHETICAL Mental Anguish Case page 47, question 16
(a) Plaintiff claims damages for mental anguish suffered by him by reason of defendants
negligence
(b) Defense counsel knows:
(i) According to the law of some states there exists a right of action for mental
anguish inflicted in the alleged circumstances
(ii) Other states no such right is recognized
(iii) Courts of the state in which the event occurred have not yet spoken on the
question
(c) Defense investigation of the facts indicate:
(i) Likelihood that the plaintiff cannot prove negligence
(ii) Wish to challenge the venue
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(iii) Plaintiff was contributorily negligent
(d) Raise defenses by way of answer instead of pre-answer motion
(i) If case is likely to continue anyway motions cost time and money
(ii) Defenses to include:
(a) Rule 12(b)(3) challenge venue
(b) Rule 12(b)(6) failed to state a claim upon which relief could be granted
point out jurisdictions where right to mental anguish claim is not
recognized assert defenses belief why court ought to recognize other
states policy
(c) Rule 8(b) general denial of allegations of negligence plaintiff
probably cannot prove negligence
(d) Rule 8(c) assert affirmative defense contributory negligence
(e) Raise defenses first by pre-answer motion then with answer
(i) Some defendants prefer pre-answer motions
(a) Extend time before they need to answer the claim
(b) Makes the pre-trial phase of the case longer and more expensive for
plaintiff
(ii) Defenses to assert in pre-trial motion:
(a) Rule 12(b)(3) challenge venue
(b) Rule 12(b)(6) failed to state a claim upon which relief could be granted
(iii) If Rule 12 motion is not successful then file an answer:
(a) Must confirm or deny each charge
(b) Rule 8(b) general denial of allegations of negligence plaintiff
probably cannot prove negligence
(c) Rule 8(c) assert affirmative defense contributory negligence
(f) What if plaintiff has failed to put critical element of their case in claim?
(i) Pre-trial motion may give plaintiff unnecessary advantage if they have missed a
point
(ii) You dont want to educate plaintiffs attorney on the aspects of the law he may
have missed in his research or on the critical facts of his case
(5) Coleman v. Frierson 1985, page 51
(a) Investigator finds fraud and fired failure to state a claim after judgment
(b) Can defense raise the failure to state a claim defense after the issuing of a default
judgment?
(i) Rule 12(h)(2) a defense of failure to state a claim upon which relief can be
granted . . . may be made in any pleading . . . or by motion for judgment on the
pleadings, or at trial on the merits
(ii) Court could not accept 12(b)(6) motion because doing so would:
(a) Create an intolerable delay
(b) Create uncertainty as to final judgment on the merits
(c) Defendant should have raised argument earlier in trial
(d) Show disrespect for the procedural rules upon which justice is hinged
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(c) Rule Parties can raise a Rule 12 motion before but not after entry of default judgment
time when federal rules were interpreted strictly other courts dont need to follow
Coleman, District Court opinion
(6) HYPOTHETICAL Client has similar situation to Coleman case what do you do?
(a) Read decisions critically why would another judge find in your favor?
(b) Arguments for lenient interpretation of 12(h)(2)
(i) A default judgment is no a trial on the merits
(ii) Parties should not win if they dont have a claim we want people to win on the
merits of the case
(iii) When does trial end read rule to mean that the trial includes 10 day grace
period before judgment is entered.
(iv) Rules should be interpreted broadly intent is to preserve this kind of defense
3. REPLYING TO DEFENSES
a) Rule 7(a) If defendants answer is confined to denials plaintiff may not respond
b) If defendants answer contains affirmative defenses plaintiff may not respond barring court
order
(1) Rule 8(d) Averments (affirmation of fact, allegation) in a pleading to which no responsive
pleading is required or permitted shall be taken as denied or avoided
(2) Plaintiffs position regarding affirmative defenses is not fully disclosed by the pleadings for
those defenses for which responsive pleading not allowed
(3) At trial plaintiff may:
(a) Assert the negative (denial)
(b) Assert further matters invalidate claim (avoidance)
(c) Take both positions
(4) Rule 12(f) Plaintiff can motion that defenses answer is insufficient
(a) Rule 12(h)(2) gives plaintiff power to do this throughout the trial
(b) Analogous to defendants ability to do 12(b)(6) motion
4. COUNTERCLAIMS (P 56)
a) Compulsory Counterclaims
(1) Rule 13(a) Defendant must assert claims that arise out of the same transaction or occurrence
that is the subject matter of the plaintiffs.
(a) Judicial efficiency is rational behind rule:
(i) Avoids simultaneous litigation
(ii) Reduces risk of inconsistent judgments
(iii) Avoids wasting time and money
(2) If defendant does not assert a compulsory counterclaim he is thereafter precluded from
asserting it against plaintiff either:
(a) In the plaintiffs pending action
(b) In an independent action
(3) Rule 13(f) permits defendants to set up counterclaim by amendment . . . if through
oversight, inadvertence, or excusable neglect (goes along with 2(a))

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(4) If a defendant has failed to assert a compulsory counterclaim later sues on that claim res
judicata or the like can then be pleaded as a defense (goes along with 2(b))
b) Permissive Counterclaims
(1) Rule 13(b) bring as a counterclaim any claim against the opposing party that by definition
doesnt arise out of the same transaction as opponents claim
(2) Rule 42(b) the court is authorized to order separate trials for any claim, counterclaim, or
issue in an action
(a) in furtherance of convenience, or
(b) to avoid prejudice
Transaction or Occurrence
(3) Rules 13(a) & (b) use words transaction and occurrence legal chameleon relatively
few opinions clarifying definitions
(a) Lots of state codes of procedure dont have compulsory counterclaims
(4) Williams v. Robinson 1940, p. 65
(a) Woman sues for maintenance man sues for divorce, adultery transaction
(b) In Robinsons counterclaim accuses wife of adultery and joins Williams as plaintiff.
(c) Williams answers counterclaim with denial of act of adultery
(d) Williams sues Robinson in separate action libel and slander
(e) Robinson moves to dismiss libel and slander should be compulsory counterclaim
same transaction
(f) Issue: was slander and libel P claims part of same transaction of adultery that D made
counterclaim to in first case?
(g) Court found:
(i) Acts of adultery are happening at one set of time and places
(ii) Statement charging adultery happened at another set of time and place
(iii) Different transactions
(iv) Ds motion to dismiss complaint is overruled
(h) Rule ? ? ?
(5) Common transaction tests to see if counterclaim is compulsory:
(a) Same Evidence Test Judicial Efficiency
(i) Same transaction if same evidence will support or refute the opposing claim
(ii) The greater the evidence deviates, there is less an opportunity to try two cases at
once
(iii) Williams case could have been tried with same evidence truth is defense for
libel !in both cases proving truth of affair will be important
(b) Logical relationship test
(i) A logical relationship between the claim and counterclaimpretty vague
(ii) Broad interpretation of what a compulsory counterclaim iswhen separate trials
would involve substantial duplication of effort, use of evidence, then must use
compulsory counterclaim
c) Responding to Counterclaim (p 61)

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(1) Counterclaims (compulsory & permissive) treated like a complaint for pleading purposes
(a) Plaintiff assumes role of defendant in pleading counterclaim
(b) Rules 7(a) and 12 (a)(2) apply here
(c) If P failed to move, it would be default in favor of D
(d) Problem 32, p. 61: Is there inconsistency between 18(a), plaintiff may join claims, and
13(a) that defendant must assert claims arising from same transaction!language of
rules may look more lenient to P, but P cant bring up new claims because of res
judicata
(e) Problem 33, P. 61: party need not assert a counterclaim that is not matured at time
served pleading; if acquired after D has answered is not compulsory even if it occurs
out of same transaction
d) Recoveries on Claim and Counterclaim
(1) Rule 13(c) Plaintiff will receive or pay the difference in relief given him and the defendant
(2) If Ds recovery is larger than Ps, then have affirmative judgment in favor of D for
difference! affirm. judg. also occurs when P fails on claim and D succeeds on counterclaim
5. AMENDING THE PLEADINGS (P 62)
a) Amendments Before Trial
(1) Rule 15(a) permits party to amend pleading once as a matter of course at any time before a
responsive pleading is served
(a) An answer is a responsive pleading
(b) A motion is not a responsive pleading
(c) Only other way to amend is by leave of court when justice so requires
(2) Why should party be required to ask permission to amend pleadings (after grace period)?
(a) Parties base case on pleadingsmay not investigate matters that arent pleaded if arent
aware of changes
(b) May be allowed to amend pleading if justice is better served
(c) Witnesses may be gone, evidence gone, etc.
(d) May prejudice the case for these reasons
(3) Why allow amendments?
(a) Contrary to justice
(b) Decision would not be based on merits but skill in pleading

a.0) Beeck v. Aquaslide N Dive Corp 1977, p. 63

(1) P was severely injured when used slide allegedly manufactured by D

(2) Investigators from insurance companies of Harker (Ps employer), Kimberly Village (where
incident occurred), and D all concluded that slide was manufactured by D

(3) P sued on theories of negligence, liability, breach of implied warranty

(4) Since D had no other information, answered to complaint by admitting to manufacture of slide

(5) Statute of limitations had run on Ps claim, then Ds owner went to site and said that slide in
question was actually counterfeit slide

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(6) D made motion to amend answer and DENIED manufacture

(7) District Court granted leave to amend

(8) Separate trial was held on issue of manufacture, tried by jury and verdict returned for D

(9) P appealed

(10) Issue: district court improperly applied exercise of discretion on procedural matters in
allowing amendment (Rule 15(a))

(11) Court found

(i) agrees with district court that D did not act in bad faith in initial admission of
manufacture: using evidence of insurance investigators

(ii) agrees with dist. court that decision does not prejudice against P by barring Ps
further litigation

(a) too presumptuous to assume that D would prevail on claim of factual


issue of manufacture and also that P couldnt proceed against other
parties-

(b) also defendant would be prejudiced if didnt allow amendment

(iii) also there no lack of due diligence!reasonable reason for parties failures to
obtain information to plead accurately

(iv) leave to amend shall be freely given under Rule 15(a)

(v) affirms trial courts use of discretion to allow amendment

(4) Factors in (i), (ii), and (iii) above are ones considered by courts in exercising discretion under
Rule 15(a)
b) Amendments At or After Trial
(1) Rule 15(a) imposes no absolute time limit on seeking amendment
(2) Rule 15(b) shows that a motion to amend during the trial may not be too late there may be
circumstances where it may be allowed even after trial is concluded and judgment entered
(3) Rule 15(b)
(a) treats pleadings as amended when opposite side failed to object fully to trial evidence
unambiguously going beyond the pleadings and thus tried those new issues by consent
(b) makes provision when a party seeks to amend after his opponent has successfully
objected to trial evidence as going beyond the pleadings
(c) many times courts will grant continuances to allow other party to retrieve witnesses and
evidence to prevent prejudicing of parties
c) Blair v. Durham 1943, p. 66
(1) Woman sues for negligence timber amended claim
(2) Plaintiffs original claim alleging negligent handling of timbers
(3) Files an amended claim two years after incident alleging negligence in constructing
scaffolding

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(4) The statute of limitations was one year
(5) Defendant moves to dismiss complaint because it states new cause of action beyond statute of
limitationscourt rejects Ds motion
(6) Blair is an example of pleading too specifically, also could have investigated facts better before
writing pleading
(7) Rule claims arise out of the same transaction when both claims allege breaches of the same
legal duty and same injury
(8) This is an issue about Rule 15(c) which is about relation back of amendments, how date of
amendment relates to original pleading for purposes of statutory period of limitationtimely
filed under statute of limitations
d) Blair Transaction Test Used to See if Plaintiff Can Amend Pleadings
(1) Blair court
(a) Accepted amendment if the claims both allege breaches of the same legal duty and
come from the same injury
(b) Purposeallow the plaintiff to get around statute of limitations, allow flexibility of
amendment that creates legal fiction that amendment relates to original complaint so
dates back to original complaint
(c) Also to preserve purpose of statute of limitationsprovide notice to defendant to get
evidence to defend that claim
(d) Ensures that defendant has notice of new claimdefendant should realize that case will
consider all aspects of injury
(e) Were unwilling to allow passage of time to prevent D from answering for his alleged
injury
(f) 15(3)(c) talks about amendments adding new defendantsthey should have known that
new defendant would have been added except for mistake of plaintiff
(2) Some courts read more loosely than Blair:
(a) Allowed if claims arise from common core of operative facts (Conduct, transaction or
occurrence definitions at issue here)
(b) A mere switch in legal theory from breach of warranty to negligence is not enough to
stop the amendment from relating back
6. DISCLOSURE AND DISCOVERY (P. 69)
a) History
(1) Old way to find our information
(a) No discovery process
(b) Private investigator was hired to find bulk of evidence
(c) Costly process usually rich won in litigation
(2) Modern way
(a) Bulk of lawyers efforts are in discovery
(b) Purpose of discovery eliminate surprise and evens the playing field
b) Purposes of Modern Discovery Rules
(1) Preservation of evidence that may not be available at trial witnesses may not be available:
(a) Elderly or ill witness may die
(b) Witness may be out of jurisdiction at time of trial
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(2) Ascertain and isolate issues that are in controversy between parties
(3) Find out what testimony/evidence is available on each of factual issueswhat does the other
side have to make their case
(4) Eliminate surprise at trial for both parties
c) 1993 Amendment: General provisions governing disclosure
(1) Rule 26(a) New Disclosure System
(a) Rule 26(a)(1)
(i) Must disclose certain information without request from opposing party at or
within 14 days of the Rule 26(f) meeting
(ii) Rule 26(a)(1)(A) Must disclose identity of anyone who is likely to have
information concerning the disputed facts (the greater the specificity of the
pleadings the more complete the listing of witnesses should be)
(iii) Rule 26(a)(1)(B) Must disclose copy or description of documents and things in
partys possession
(iv) Rule 26(a)(1)(C) Must disclose a computation of any category of damages
claimed
(v) Rule 26(a)(1)(D) Must disclose insurance agreements
(vi) Rule 26(e) Calls for Supplementation of Disclosures and Responses, amend
as needed
(b) Rule 26(a)(2)
(i) Must disclose the identity of any person who may offer testimony at trial
(c) Rule 26(a)(3)
(i) Must disclose information regarding evidence that may be used at trial other
than solely for impeachment purposes
(ii) Two separate lists must be disclosed list of witnesses who will be called and
those that may be called
(iii) Must disclose documents intended for use in trial separated in lists to be used
and may be used
(2) What good did these changes do?
(a) Save time and money by making suit go more quickly judicial efficiency
(b) Moderates the adversarial behavior of parties causes opposing sides to cooperate
(3) Many courts opted out of several of the new discovery provisions
(4) Justice Scalias Dissenting Statement 1993
(a) New discovery rules are not more efficient but less efficient
(i) Not going to replace discovery
(ii) It will add a layer of discovery
(iii) It will increase the burden on judges trying to determine what is relevant
(b) Net result is increase in cost
(c) New discovery rules dont fit within our adversarial system of justice
(i) Intolerable strain on the lawyers ethical duty to represent his client
(ii) Requiring lawyer to make a judgment on relevant facts causes him to use his
professional skills in the service of his adversary
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(5) New rules encourage (but dont require) plaintiff to plead with particularity so defendant must
turn over all documents within scope in Rule 26(f) meeting
d) General Provisions Governing Discovery
(1) Scope of discovery is wide
(a) Rule 26(b)(1) parties may obtain discovery regarding any matter, not privileged
(b) Evidence that may not be admissible may be discoverable (see problem 46 p. 72,
skylight example)
(c) Matter must be relevant to subject matter of trialcan consult rules of evidence to
determine what is relevant
(d) In general dont allow discovery of net worth because this is violation of rights of
privacy
(i) Exception is if suing for punitive damages because need to know net worth to
determine amount that would deter someone
(e) Rule 26(a)(1)(d) allows for discovery of information of insurance policy
(i) Way for P to determine value of case
(ii) Have separate rule for this so that other party couldnt argue that it wasnt
relevant
(2) Expected to work by action of the parties, without intervention of the court
(a) Physical or mental examination is only discovery devise that must be initiated by
motion addressed to the court: Rule 35!concern about invasion of privacy
(b) All else is by action of the parties:
(i) Depositions upon oral examination
(ii) Depositions upon written questions
(iii) Interrogatories to parties
(iv) Production of documents and things
(v) Requests for admissions
e) Depositions Upon Oral Examination [Rule 30]
(1) General:
(a) This method of discovery comprises oral examination of anyone thought to have
information within the scope of discovery
(b) Rule 30(a) May depose party or nonparty, attendance can be compelled by subpoena
[Rule 45]
(c) Rule 30(a)(2)(a) may take no more than 10 depositions without leave of court
(d) Similar to testimony at trial but there is no judge present
(2) Possible reasons to use oral deposition: The discovering party might . . .
(a) Know or suspect deponent has information that would aid him in his own investigation
and preparation for trial
(b) Be left in the dark by his adversarys pleadings, may want to take adversarys
deposition to uncover the nature of the claim or defense
(c) Be fully familiar with witnesss testimony but witness may be old or about to die, there
is danger that witness may be unavailable at time of trial and want to record his
testimony

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(d) Want a deposition to tie witness down to one story
(e) Want to expose a fatal weakness in adversarys claim or defense thereby strengthening
his position in settlement negotiations
(3) Process of oral deposition:
(a) Notice
(i) Rule 30(b)(1):
(a) Must give reasonable notice to parties
(b) Specifies time and place of deposition
(c) States the name and address of each person being deposed
(ii) Need to subpoena a deponent who is not a partyRule 45
(iii) Notice is sufficient to make a party appear at depositioni.e. dont need
subpoena for parties
(b) Place of deposition
(i) Party where the suit is filed
(ii) Non-party Rule 45
(a) A subpoena may be served at any place within the district of the court by
which it is issued, or at any place without the district that is within 100
miles of the place of the deposition
(b) A person who is not a party or an officer of a party to travel to a place
more than 100 miles from where that person resides, is employed, or
regularly does business transactions in person
(iii) Deposition is taken in the presence of a court reporter in the attorneys office
(See Rule 28(a))
(4) Objections
(a) Two situations:
(i) A question put at the deposition is within scope but would be objectionable at
trial
(a) Deponent should answer the question and objection will be recorded on
books (Rule 30(c) covers recording of objections)
(b) If deposition is ever offered as evidence at trial the objection will be in
effect and the judge will rule on it at that time
(c) Usually when deposition is offered as evidence the opposing party can
still object even though there was no mention in the deposition
(ii) A question may be objectionable for not falling within scope of discovery
(a) If the question would not prove damaging or offensive answer it
(b) If the question is damaging or offensive then object court will rule
(iii) Rule 37(a)(4) objecting party may be held liable for expenses for proceedings
if they are found to have unreasonable failure to answer a proper question
(5) Determining what to ask in a deposition:
(a) Research the law and determine what facts are necessary to establish winning case
(b) Create line of questioning that will get witness to offer facts that are relevant
(c) Ask things that relate to your partys claim

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(6) Preventative Measures in Deposition (Trying to cut out any escape routes) Attorney will
usually:
(a) State who they are and who they represent
(b) Ask deponent if they are sick or on any medications
(c) Ask the deponent to inform the attorney if they dont understand a question
(d) Explain to deponent that it can be brought up in trial if they change deposition before
signing it!try to prevent them from changing their deposition
(7) Advise from Deponents Attorney:
(a) Formulates hypothetical questions
(b) Answer only question that is asked
(c) Make sure to understand the question
(d) Give the shortest, truthful answer
(e) Do not volunteer information
(8) Umphres v. Shell Oil Co. 1971, p. 82
(a) In deposition, defendant questioned plaintiff as to what made up the details of his
conspiracy claim
(b) Issue: Ds attorney made Rule 37(a) motion to compel P to answer certain questions in
oral deposition
(c) Court held:
(i) Defendant cannot ask the plaintiff such questions this would be tantamount to
asking a party for a legal definition
(ii) Cannot ask plaintiff to support claim when question is couched in legal terms
(like what facts constitute a conspiracy)
(iii) This is especially true when defendant had other ways to obtain information
(iv) Court orders plaintiff counsel and defendant counsel to have face to face
meeting to discuss defendants questions
(v) Plaintiff can answer questions regarding facts of case after attorneys have
worked out legal issues
(d) Rule cannot ask purely legal questions in depositions, or on issues couched in legal
terms, like conspiracy
(9) Brandenberg v. El Al Israel Airlines 1978, p. 77
(a) 72-year-old plaintiff claims negligent and reckless treatment by defendant caused her
stress and mental injuries
(b) Defense counsel ask plaintiff:
(i) Do you have a factual basis to support the allegations against . . .
(ii) Do you know of any way the defendant did that was not proper treatment . . .
(c) Plaintiff counsel directs client not to answer on the basis that the questions called for
legal conclusions of a lay witness
(d) D (British Airways) moves for order under Rule 37(a) to compel answers
(e) Court found:
(i) Questions were permissible could ask plaintiff about factual nature of claim

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(ii) Defendant has right to know the factual basis upon which the plaintiffs claim
rests
(iii) Directs plaintiff to respond
(f) Rule party can ask factual questions of an opponent assuming the questions are not
couched in legal terms (ie, can you tell me in your own words what the basis of you
claim against British Airways-)
(10) In notice pleadings, dont require P to allege facts, but in discovery, allow D to sharpen the
facts
(11) Once written record made of depositions, these are made available to deponent for review/
changes
(12) There are significant limitations to scope of discovery
(a) Privilege, irrelevance
(b) Rule 26(b)(2) district courts can limit duplicative or disproportionate discovery
(13) Discovery and Pleadings with potential ambiguity stemming from notice pleadings,
discovery is helpful to flush out facts that support claim
(14) Partys own attorney can ask questions to client during oral depositionhappens when
deponent says something damaging and trying to clarify issue
f) Depositions Upon Written Questions [Rule 31]
(1) Deponent may be party or nonparty
(2) Have questions to deponent, any party can within 14 days serve questions for cross-
examination, which can be followed with questions for redirect and recross
(3) Attorney formulates questions court representative reads questions and records answers
(4) Written depositions are cheaper but are more difficult to get relevant information difficult to
ask follow up questions
(5) Counsel of deponent can rehearse questions before trial
g) Interrogatories to Parties [Rule 33]
(1) Served upon parties only not to exceed 25 in number
(2) Party and their counsel prepare responses while under oath
(3) Rule 33(a) each interrogatory shall be answered separately and fully in writing under oath,
unless it is objected to, in which event the reasons for objection shall be stated in lieu of
answer
(4) Sometimes more preferable to deposition:
(a) (1) Thoroughness of deposition is not required
(b) (2) Information is sought which is available to party but not necessarily known to the
party off handmight not be able to answer this type of question in deposition
(c) (3) Information being sought may be available to the partys lawyer
(d) (Martinez didnt go over last three) Information may be more available to other side
(e) When trying to get specific contentions of party
(f) When requesting things like names of witnesses
(5) Interrogatories have their downsides:
(a) Usually sanitized by opposing counsels lawyer not going to get much out of it
(b) No flexibility no follow-up questions like in depositions

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(c) May only be asked of parties not nonparties
(d) Easy to abuse, can be burdensome to answer create more disputes than any other
discovery device
(6) Possible objections to interrogatories:
(a) Too burdensome, vague, or ambiguous
(b) Seeking irrelevant or privileged information
(7) Can use Rule 37 motion to compel if other side doesnt answer questions
(8) Under Rule 26 can seek protection against interrogatory
(9) OBrien v. International Brotherhood of Electrical Workers 1977, p. 86
(a) Plaintiff alleges constitutional rights were violated when he was suspended and fined by
defendant (union)
(b) Local union chapter suspends and fines plaintiff then international union rescinds
decision and retries plaintiff thereafter fining him
(c) Plaintiff sends list of interrogatories to local chapter
(d) P makes motion to compel discovery on these interrogatories and court must grant or
deny motion
(e) Court finds:
(i) Questions within distinct knowledge of international union are not admissible
(ii) Interrogatory 4: Questions relating facts to law are acceptablei.e. what facts
constituted dissension caused by plaintiffs statements
(iii) Interrogatory 6: Questions of pure law (legal issues unrelated to the facts of the
case) are not permissible cant ask about legal conclusions
(f) Rule interrogatories are admissible as long as they extend to more than pure law,
i.e., legal issues unrelated to the facts of the case
(g) This case considering Rule 33
(10) Answers to interrogatories are not binding because of changing nature of strategy of
case!dont want to chain person to one strategy, could go against deciding case on merits
h) Can ask questions relating to how law apply to facts in interrogatories because answered with lawyer
CANT ask these questions in oral deposition because asking deponent to make legal conclusions
KEEP THESE STRAIGHT
i) Requests for Admission [Rule 36]
(1) Basic Provisions
(a) A party may serve upon any other party a written request for the admission of the truth
of any matters within the scope of Rule 26(b)(1)
(b) Includes requests to verify statements or opinions of fact or of the application of law to
fact, including the genuineness of documents
(2) Sanctions under Rule 37(c) discourage capricious denials
(a) Pay the expenses of making the necessary proof at trail
(b) Likely hood of getting this motion granted
(i) If party had reasonable ground to believe that they might prevail on matter
(3) If dont answer request, then assumed that it is admitted, and deemed conclusively established
for purpose of litigation, but admission cannot be used in any other litigation

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(4) These admissions are binding in trial, can only be changed with formal amending process (as
opposed to interrogatories)
(5) Can get admissions to applications of law to fact
(a) Prior to 1970 you could not
(i) Why does discovery cure the potential problem?
(a) Being chained to legal theories conclusions you dont necessarily want to
be chained to
(b) Problem here is the answers to the admissions are binding at trial, and
therefore some argue we were better off under old rule
j) Production of Documents and Things [Rule 34]
(1) Party may request any document or tangible thing that are:
(a) Within the scope of Rule 26(b), and
(b) In control of the party when the request was made
(2) Good to have before depose witness, can use documents to discipline witnesses
(3) Party must request with reasonable particularity
(a) How do you obtain documents you dont know about but may deal with issues at hand?
Like some documents that relate other than actual contract.
(b) Can give general categorical description: good when dont know what specific
documents exist
(c) e.g., please submit all documents relating to, referring to car accident
(4) How to produce documents (turning documents to other side):
(a) Client produces documents
(b) Before submitting them to adversary must review to see:
(i) If document is called for in the request: i.e. responsive
(a) Dont want to give adversary something that is not called for
(ii) Doesnt violate a privilege (e.g., attorney/client or work/product)
(a) Why should you make sure they are not privileged?
(i) Adversary cannot get documents that are privileged, if you give
them information you waive the privilege.
(b) Why do attorneys have statements on bottom of their emails stating email
is private
(i) Trying to prevent waiver of privilege, make email undiscoverable
(iii) Can be laborious
(a) Cases involve huge quantities of documents.
(c) Two ways to produce to client:
(i) As they are kept in the usual course of business (Rule 34) (preferable, more
difficult for opponent to decide which documents are responsive), or
(ii) Organized by document request
(d) Can you hide documents?
(i) No you are required to produce them
(5) Can only be asked of parties, not nonparties!for non-parties have to use a Rule 45 subpoena
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(6) Usually first step, you can use documents to discipline witness at depositions
k) Physical, Medical and Mental Examination [Rule 35]
(1) Only discovery tool requiring a leave of court to require an exam
(2) Useful when a party refuses to be examined
(3) Rule 35(a)
(a) Court requires motioning party to demonstrate the condition is in controversy and good
cause is shown.
(b) Rule applies only to a party or someone under legal control of a party
(i) Given this how would a litigant prepare on the condition of a non-party? For
example the eyesight of a witness to the accident in the lawsuit. See (4) below.
(4) Condition of a nonparty is very hard to obtain
(a) can ask non-party directly, though unlikely to agree
(i) Done before you go to the court
(ii) Attorneys are not trying to help witness out, they are probably trying to make
witness look bad and not telling the truth when they gave your testimony.
(b) Could try to make them party to suit or under custody or legal control to extend Rule 35
to them
(i) Not enough to claim a third party is your employee and under your custody
(ii) May have to produce a minor for examination since child is in custody or legal
control of the party
(c) Could pursue private investigation to determine condition of nonparty
(d) Could subpoena (Rule 45) for deposition of nonpartyask about medical/physical
condition then
(i) Should you be able to ask about medical condition at deposition
(a) If you can show it is relevant to the truthfulness of their testimony,
maybe
(ii) Could you administer an eye exam
(a) What if you bring an ophthalmologist
(i) You cant compel to a nonparty submit to an examination (Rule
35) the courts approval is required to obtain a medical exam.
(ii) But you arent taking a medical exam you are just asking
questions, you could ask if they do not object (but they would
under Rule 35).
(e) Could subpoena nonpartys doctor for informationmight violate doctor-patient
privilege, unless you waive those rights
(f) Summary, shows value of Rule 35, otherwise you probably wont be able to get this
information at least with respect to parties

(5) Schlagenhauf v. Holder 1964, p. 91


(a) Bus and tractor-trailer rear-end collision Medical examination for bus-driver
(b) Plaintiff (passengers) wants court to order sweeping medical exams against defendant
(bus driver, owner, trailer operator).

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(c) Bus owner cross-claims against tractor trailer was driving too slow and did not have
proper rear lights
(d) Tractor owner and tractor driver respond to cross-claim deny their own negligence and
allege contributory negligence by Schlegenhauf (bus driver) that he was not mentally or
physically capable of driving the bus at the time of the accident.
(i) Why do we have to pay attention to allegations?
(a) Is the mental or physical condition at issue in the allegations?
(e) Bus driver, Schlagenhauf, says shouldnt have to because wasnt opposing party at time
of discoveryhadnt asserted a claim against him at time of discovery!this argument
is rejected because he is a party, though not opposing party.
(a) Want him to be examined by an ophthalmologist, psychiatrist, internal
doctor, and neurologist
(b) Application is based on affidavit that says Schlagenhauf saw brake lights
of the trailer ten to fifteen seconds prior to the condition yet drove on
without change of speed or course; Schlagenhauf admitted in his
deposition that he had been involved in a similar collision; only
eyewitness testified that he had been approaching trailer from rear and
seen lights from about a mile away.
(f) What makes you a party in the lawsuit? Because he was sued, that makes him a party.
(i) His argument is Rule 35 shouldnt cover him here, because people seeking
exams are not opposing parties because they have not asserted claim against
him. His argument is that parties in Rule 35 should pertain only to opposing
parties (someone who asserts a claim against him).
(ii) Discovering party should not have to file a claim against party to be examined
because it would cause a proliferation of cross claims
(g) Shlagenhauf also argues good cause has not been show. You have to show more than
just relevance regarding the condition of the party, and conclusory allegation of the
pleading are not enough, except when the plaintiff puts own physical or mental
condition at controversy or the defendant does the same as defense to a claim.
(h) District court grants requests of examinations; internal medicine, ophthalmology,
neurology; psychiatry.
(i) Supreme Court rules:
(i) Are the pleadings sufficient to justify the exams?
(a) As defendant Shlagenhauf would have to put his own condition in
controversy. It was raised in answer to cross-claim. Eye exam was
probably only exam. When are allegations enough in pleading sufficient
to warrant an exam? This is one defendant asserting something about a
co-defendant. Usually allegations are only sufficient when a party puts
their own condition in controversy.
(ii) Court might have considered ophthalmology exam
(iii) Pleadings alone arent sufficient because P didnt put his own mental/physical
condition at issue. The co-defendant put condition at issue.
(a) What do you do when pleadings are not sufficient?
(i) Going to have to produce more facts to see if a proper showing
can be made. Other facts here come from the only witnesss
affidavit (sworn statement) by attorney. Have to show that each
condition in really in controversy and good cause exists for
ordering each exam, and the ability to obtain information by other

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means is relevant. If you can get info other where there is no good
cause.
(iv) Have to look at each examination and show that good cause exists for each
particular exam. Good Cause for ordering an
(a) Internal medicine exam? The evidence of seeing the lights and prior
accident dont raise an internal medicinal issue.
(b) Neurology Exam? I think there is a cause since this would assess
defendants reaction time. But there is no evidence to present a material
factual issue. Even though there were two accidents, doesnt show there
is a neurological issue.
(c) Psychiatric Exam? Test for mental illness or stresses.
(d) Ophthalmology exam? Eyesight is in controversy because evidence
(witness (stronger) and prior accidents (weaker)) of witness and is
materially at issue therefore there is good cause to order the exam.
Vision and sight were brought into controversy in Shlagenhaufs
pleading.
(e) SCOTUS said nothing in pleadings or affidavits justify internal,
neurological, or psychiatric exam. Where a party has not put into issue
their own mental or physical condition, then there is no right to order
sweeping exams.
(v) District courts are to use discretion in ordering examinations sweeping
examinations are not acceptable
(j) Rule Party must show good cause and condition must be in controversy and use
discretionneed to show more than just relevance to case
(k) What may be good cause for one issue may not be for another
(l) Dont want to risk medical examination results being used for blackmail (Justice
Douglas opinion).
(i) The exam may find an embarrassing or damaging condition to that person if it
got out.
(ii) Could force you to settle the case, or even extort money from you.
(iii) Court warned district court judges of dangers of medical exams and told them to
guard against blackmail and gave them good cause and controversy standards to
prevent unneeded exams.
(m) There has to be a showing by the movant that each condition to which the examination
is sought is really and in controversy.
(n) If you can obtain the information by other means, it may be relevant
(i) Some situations pleadings alone may be sufficient
(a) Plaintiff in negligence claiming mental or physical injury may be subject
to examination
(o) In what situation would good cause be shown in a situation non-negligent case
(i) Mental defense to civil action
(p) Special showing going beyond pleadings should be required when the person has not
put own medical condition at issue
(6) Sometimes pleadings alone are sufficient to merit examinationex. P claims negligence of D
has caused mental/physical condition or D makes defense that calls into question their
physical/mental condition

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(7) Exchange of Reports
(a) Rule 35(b)(1) Request by Party or person to be examined
(i) Examinee or party against whom exam was requested can request detailed
written report of Rule 35 exam
(ii) Party that moved for the examination must on request deliver to requester a copy
examiners report along with reports of earlier examinations of the same
condition
(b) Rule 35(b)(4) Waiver of Privilege
(i) By requesting and obtaining a report of the exam, or deposing examiner, the
examinee waives privilege it may have in the action concerning testimony about
all examinations of the same condition
(ii) Waives any doctor-patient privilege by requesting report
(c) Rule 35(b)(3) Request by Moving Party
(i) Voluntary submission to exam has same application under Rule 35(b)(1)
(ii) Does not exclude discovery of examiners report by any other discovery rule
(iii) The moving party may request all like reports of the same condition made prior
to move for examination, but the party with custody over examinee need not
deliver such reports if it shows they cannot
Question 65 pg. 90
If discovering party delivers these reports, to what does he become entitled? Rule 35(b)(3)(4)
- Discovering party is entitled to prior reports regarding the same conditioned of the examined party.
Question 67 pg. 91
Should an examined party hold the right to have her attorney present during the physical or mental examinations?
- No with respect to psychiatric examinations. (Brandenberg v. Al Israel Airlines). Attorney could object to
findings later. Attorney would interfere with the ethics of the doctor, or the process and completeness of the
exam.
(d) Quid pro quo arrangement
l) Supplementation of Responses
(1) When to supplement Rule 26(e)
(a) Generally: when you find that discovery information was incorrect or incomplete
(b) When responding party has new information about the identity or location of persons
with knowledge of discoverable matters
(c) When the responding party obtains information from which he actually knows that his
response was incorrect or incomplete when made, unless known by other party
(d) When the responding party obtains information from which he actually knows that his
response is no longer true and the circumstances are such that failure to amend it would
be in substance knowing concealment
(2) Duty of candor: Case law supports that there is none for opposing counsel to tell other side
about witness if not asked to do so
Question 68 pg. 92
is a party justified if they stand by and let the other party be misled by answers they know not to be true. Is he
ethically justified in standing silently by.

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When they say ethically justified they mean the ethics of lawyers. The ethics say an attorney is not acting
unethically if they stand by and let the other party be misled. You have a duty to a client to be silent and let the
answers stand. This is occurring during discovery. Look at ethical duty of candor above.
Defendants attorney knew there was an eyewitness but did not tell plaintiffs attorney or the court. The opinion said
it was not improper bc an attorney has to zealously represent their client.
What might a fed trial judge if a party called a witness that had not been deposed or included as a witness surprise
witness
(3) Calling a non-disclosed witness Rule37(c)(1)
(a) Judge might exclude the evidence
(b) Judge might grant a continuance to deal with the new evidence
(4) Surprise witness comes forward with unfavorable testimony must disclose
Discovery request says you must disclose all witnesses that have knowledge of incident. But later a witness appears
who read about story that you did not know about previously, and her story is favorable to your clients case. What
do the rules require you to do, you would need to supplement your discovery response.
Take the same facts but suppose witnesses story is unfavorable to clients case. What should you do then? You have
acquired new information that is unfavorable. Since the information is material you have a duty to supplement the
discovery response per Rule 26(e). You dont need to evaluate witness you just need to give them a name and phone
number.
Regarding lawyers ethics, disregarding the rules of civil procedure. It is not an easy decision to bring in evidence
damaging to your client. There is a rule saying you have to. Can put you in a bind.
m) David L. Shapiro, Some Problems of Discovery in an Adversary Systemp. 94
(1) Argument: Adversary system encourages obstruction of goals of discovery
(2) Wants to curtail substantially role of adv. system during pre-trial
(3) Tension exists: duty of lawyer to disclose discovery with duty to represent client zealously
(4) But hard to legislate or implement change
Question 71 pg. 95 &
In the Sierocinski case, would it be improper under the present rule 11(b) for the plaintiffs lawyer to continue to
pursue the case if discovery revealed to him that there had been no good ground to support the complaint?

n) Use of Products of Discovery in Court Proceedings [Rule 32]


(1) Generally, courts will not allow depositions into evidence considered as hearsay (rules of
evidence) an out of court statement offered for the truth of what it asserts.
(2) If admissible, may be applied as though witness were present and testifying
(3) Depositions are admissible if:
(a) Rule 32(a)(1) Used for purpose of contradicting or impeaching the testimony of
others
(b) Rule 32(a)(3)(A-E)
(i) The witness is dead
(ii) Witness is greater than 100 miles away
(iii) The witness is unable to attend because of age, illness, infirmity, or
imprisonment
(iv) Unable to procure attendance of witness via subpoena

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(v) Rare circumstances where it is in the interest of justice (but generally prefer live
testimony)
(a) Question 72 pg. 95 Rule 43(a) Why the preference for live testimony?
(i) Allows the jury to evaluate the witnesses as opposed to rely on
third parties conveyance of information. Evaluate them for what?
Theoretically truthfulness.
(c) Rule 32(a)(4) The other party has used the deposition
(d) Rule 32(a)(2)deposition of a party can be admitted, anything partys say can be used
against them, it is not hearsay
(i) Why can it be used for any purpose? Admission of a partys opponent is not
hearsay. Anything you say can and will be used against you.
(4) Other products of discovery
(a) May be used so far as permissible under rules of evidence
(i) Like answers to interrogatories
(b) Rule 36 requests for admission are binding
(5) Freed v. Erie Lackawanna Railway 1972, p. 98
(a) Head brakeman [Freed, appellant] is injured when train is backed into him
(b) Defendant [Railway, appellee] responds to interrogatory question stating that the
location of the switch train at the time of the accident was not within the yard limits
(c) Road rules for trains state that trains outside of yard must have lookout posted
(d) At trial, defendant stated that the train was within yard limits
(e) Plaintiff argued that interrogatory was introduced into evidence therefore answer in
interrogatory should be binding
(f) Trial court rules:
(i) Answers to interrogatories must often be supplied before investigation is
completed and can rest only upon knowledge which is available at the time
(ii) The finder of fact must weigh all of the answers and resolve the conflict
(g) Appeals Court affirmscourt correct in not answering jurys question of fact
(h) Rule Answers to interrogatories are not automatically binding Answers to
interrogatories may be made before investigation is completed or simply mistaken.
When answers made in interrogatories differ from answers obtained at trail or
elsewhere the finder of fact (jury) has to weigh the answers and resolve the conflict.
Question 74 pg. 97
What would the result of Freed be if Rule 26(e)(1), requiring a party to correct responses to interrogatories if
material? What about rule 36 request for admission. Or rule 33? Compare.
Rule 36request to admission answers are binding, unlike rule 33
Rule 26(e) -- I imagine the defendant Railroad would have been required to correct the material location of the
incident. The court could exclude the new evidence and make the old evidence the only evidence as a punishment.
Question 75 pg. 97
Would the decision in Freed be different if the plaintiff utilized Rule 36 rather than Rule 33? Assume that the
defendant had admitted the point, and then at trial tried to contradict it. Request to admit (36) vs Interrogatories (33).
Look above.

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o) Work Product
(1) Hickman v. Taylor 1947,
(a) Tugboat accident attorney work product
(b) Facts:
(i) Tugboat sinks Feb. 1, 1943 in while helping carboat across Delaware River
five of the nine crew drown
(ii) Tugboat owners immediately hire law firm worried they are about to get sued
Fortenbaugh assigned defend tug boat owner against potential suits.
(iii) March 4th steam boat inspector hearingfour of the survivors testify, recorded
and made available.
(iv) In anticipation of litigation Fortenbaugh interviews survivors and eyewitnesses
gets signed statements (regarding what happened) from each survivor and made
memoranda on eyewitnesses. March 29, 1943
(v) All but one of crew settle lawsuit follows naming tug owners as defendants.
(vi) Filed 39 interrogatories to tug owners-- #38 was only one defendant objected to
claiming it was privileged, requesting statements taken from crewmembers
calling it a privileged matter in preparation for litigation.
(vii) District court said #38 was not privileged and demand an answer
(viii) Defendant refuses Fortenbaugh imprisoned for contempt of court until they are
produced
(ix) Appeals court reverses calling files work product of the lawyer and hence
privileged from discovery
(c) To what extent may a party discover material from an adverse party Supreme Court
ruled:
(i) Is it relevant yes
(ii) Not attorney-client privilege because between lawyer and third party. Why is
there question about why you may discover it work product privilege, and
court expresses caution
(iii) Jacksons concurring Danger exists, if defendants request were granted, that
attorney would become embroiled in giving testimony.
(iv) Would demoralize attorneys
(a) Free-loader danger: one sides counsel could do less work and take
advantage of work done by other sides counsel
(i) Would force them not to thoroughly prepare for trial, attorneys
would refuse to keep diligent records bc they would be
discoverable.
(b) Would be demoralizing to bar, because you would have to turn over all
the work you had done to the opposing party.
(d) Rule Work product is a privilege that can only be obtained by the showing of
substantial need and undue hardship in getting the information in another fashion
(2) There has to be some fear of the unknown to keep partys honestpreserves some surprise in
trial and preserves adversarial system
(3) Party can get information from attorney via interrogatories to opposing counsel
(4) Rule 26(b)(3)
(a) Includes more than Hickman agents, other partys representatives, not just attorney
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(b) Also covers work product of party himself
(c) What applies under Rule 26(b)(3)
(i) Requires special showing: Must show substantial need and that the party is
unable to obtain substantial equivalent of documents without undue hardship
(ii) Attorneys and other representatives (consultant, surety, indemnitor, insurer, or
agent) are included
(iii) Materials must have been generated in anticipation of litigation
(d) Rule covers documents and tangible things so for non-documents, have to go to
principles of Hickman since Rule itself doesnt specifically apply
(e) Rule covers documents themselves, but not facts within those documents, which can be
discovered via interrogatory of attorney
(f) Rule presents guidelines, but specific exceptions, like eyewitness accounts right after
incident vs. after long lapse of time, are to be taken on discretionary, case-by-case basis
(g) Opinion work product vs ordinary work product (records of written statements, witness
statements,) court draws distinction between type of showing needed to justify
production of work product
(i) Ordinary work product is discoverable if you show substantial necessity and no
undue burden in producing the document, like if the witnesses are unavailable
(ii) Opinion work product SCOTUS in Hickman says opinions of attorneys
specific to the litigation are not admissible in this case. Pg. 1193 if there should
be a rare situation that justifies these matter only under rare circumstances is
work product discoverable. Id it is discoverable a stronger showing is need than
the production that is required for the work product.
(iii) Analyzing the facts in Hickman
(iv) Ordinary work product witnesses written statements. Can an argument be
made that they should not be produced? The other party can interview the
witnesses themselves. The public statements made by the witnesses before the
steamboat hearings. Response to that argument? If time passes effecting the
memory, if a witness dies or is unavailable for later testimony, the transcripts
may not be sufficient because Fortenbaugh collected statements himself. Show
there is no way to get the substantial equivalent of the information.
(h) Cost of insulating attorney work product against discovery
(i) Not a problem here because the plaintiff can discover all pertinent information
through interrogatories, full answer to such would necessarily included all
pertinent information gleaned by Fortenbaugh through his interviews with
witnesses. Information compiled by attorney is available to client for answering
the interrogatories. Doesnt that demoralize the bar? What if plaintiff runs into
defendant at intersection and plaintiff says the light was red and the defendant
says light was green they are the only witnesses and it become a swearing
contest. If defendants lawyer does hard work and finds a hard witness to find
wouldnt you want to reward that hard work.
(ii) Couldnt ask attorney their efforts you must focus on facts of the case in
interrogatories. Have to couch questions in facts and limits ability to get at
attorneys investigation.
(i) Following hickman question if wp protection should extend beyond attorneys. What
showing was necessary to overcome qualified protection. Hickman doesnt really
clarify this issue only referring to necessity, justification, hardship and justice.

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(j) Rule 26(b)(3) limits, in what way is it different than that provided in hickman. Would
Hickman have provided any protection if witness statements were taken by insurance
adjustor
(i) Woulddocu hickman protect an insurance agents taken statements. The facts of
Hickman only consider an attorneys work product. But Hickman is not clear on
this part and the lower courts split.
(ii) How would Hickman be handled under rule 26(b)(3) regarding third party
material (insurance adjustor) now covers activities by those who are not lawyers.
Why would rule makers want those to be protected? Insurance adjustors should
not have to hire lawyers to investigate accidents it is cheaper to cover them
under WP
(iii) Would Rule 26(b)(3) provide Fortenbaugh any basis in his deposition to refuse
to answer anything from witness interviews
(a) No it does not protect against questions at his deposition (mental
impressions at deposition) only deals with documents, if its not a
document you go back to Hickman to try to obtain the discovery.
(k) Hypothetical witness dictates statements to an attorneys secretary at their request but
in their absence. Can it be discovered by opposing party without special showing? If it
is work product you have to make a special showing.
(i) Secretary is an agent of the lawyer is protected. Lawyer is representative to party
but attorney requested the statement taken.
(l) Hypothetical written statement taken by a party and turned over to attorney. Is that
Work Product?
(i) Fact it is turned over to attorney suggests it was prepared in anticipation of trial.
(m) Unsolicited letter giving witnesses version of the events?
(i) It is unsolicited so probably not at request of the attorney, and is not WP.
(5) Rackers v. Siegfried 1971, p. 1236
(a) Work product request in trial over auto accident (insurance adjuster)
(b) Plaintiff wants to secure documents which show the length of the skid marks left by the
defendants automobile at the scene of the accident
(c) Plaintiff argues that defendant had the figures but the plaintiff did not, the defendant
would have a distinct advantage claims substantial need
(d) Defendant suggests two alternative sources for the information:
(i) The personal observation of plaintiff after the accident
(ii) The accident report by the highway patrol
(e) Court ruled:
(i) Plaintiffs measurements after injury of infant child could not compare with the
precision of the insurance adjusters figures
(ii) The parties agree that the highway patrols figures are incorrect
(f) Rule Ordinary work product can be discoverable if the party would be under undue
hardship to get the substantial equivalent elsewhere even if it comes from non-attorney
agent
(g) Could plaintiff discover through interrogatories the info instead of seeking documents
yes, rule 23(b) only protects documents, you can discover facts P acquires all
pertinent information in interrogatories
(6) Duplan Corp. v. Moulinage et Retorderie de Chavanoz 1975, p. 1237
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(a) Throwsters attempt to discover Chavanoz attorneys opinion work product from
previous litigation
(b) Court ruled:
(i) Language in Rule 26(b)(3) clearly states that the court shall protect against
disclosure of the mental impressions . . .
(ii) Court found this to mean that no showing of relevance, substantial need, or
undue hardship should justify compelled disclosure of an attorneys mental
impressions, . . .
(iii) Even though, after termination of the lawsuit, the rule stands. Hickman was
concerned with protecting the thought process of the lawyer if this were
allowable then the adversary system would clearly suffer
(c) Rule No showing of relevance, substantial need, or undue hardship should justify
compelled disclosure of opinion work product before or after judgment (i.e. during and
after litigation)
(d) Instead of seeking the documents could the other party have discovered material
through interrogatories.
(i) Covered by Hickman which protects mental impressions
(7) Some courts make exception for mental impressions when those impressions are pivotal issue
in litigation and need for that information is compellingex. Malpractice
(8) When request goes beyond 26(b)(3), something not in documents, you go by policies in
Hickman
(9) Peterson v. United States 1971, p. 1203
(a) Plaintiff sued for alleged overpayments to the IRS
(b) Plaintiff requests discovery of detailed description of audit reports by IRS agents
(c) Government responds saying request is for opinion work product
(d) Court ruled:
(i) The only thing protected by Rule 26(b)(3) are documents and things but since
the discovery sought is equivalent to the documents themselves (because
seeking detailed description of documents), the request is covered by Rule 26(b)
(3) Martinez says this is questionable argument should have relied upon
Hickman
(ii) The audit records were not prepared in anticipation of litigation, therefore, fall
outside of the scope of Rule 26(b)(3)
(e) Rule Documents not prepared in anticipation of litigation are outside of the scope of
Rule 26(b)(3) and so not protected
(10) Work Product documents covered by 26(b)(3) but not necessarily the facts lawyers have
learned through the work process (see note above)
(11) Ford v. Philips Electronics Instruments, Co. 1979, p. 1204
(a) Defendant subpoenas third party for deposition, and asks about mental impressions of
palintiffs counsel from conversation witness had with plaintiffs attorney earlier.
(b) Plaintiff objects claiming Rule 26(b)(3) opinion work product
(c) Court rules:
(i) Verbal conversation is not within the scope of Rule 26(b)(3) only applies to
documents and things

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(ii) Simply because it is out of scope doesnt mean its discoverable making it
discoverable would fly in the face of Hickman Hickman governs if request for
mental impressions is not in documents
(iii) Questioning was unacceptable if it infringed upon plaintiffs counsels
evaluation of the case
(iv) Questioning was acceptable if it was directed to the substance of the witnesss
knowledge of the facts
(d) Rule Discovery of intangible work product, though outside of scope of Rule 26(b)
(3), is also not acceptable
(12) United States v. Nobles 1975, p. 1241
(a) Defendants investigator used information at trial, and is no longer privileged. Once
investigator offered testimony the defendant had to produce relevant parts of reports
thereby waiving any work product protection in the reports.
(b) Work product in criminal trials even more important
(c) Defendant calls defense investigator as a witness in criminal trial
(d) Prosecutor wants to use material from witnesss testimony
(e) Rule Work product privilege is not absolute . . . it may be waived in instances where
party elects to put person with privilege on the stand material covered on the stand is
no longer privileged
(13) Because lawyers fear waiving protection of work product, they put disclaimer on their email
correspondences
(14) Ordinary v. Opinion Work Product
(a) Ordinary Work Product
(i) Records of written statements
(ii) Under Hickman:
(a) Must show that plaintiff has substantial need for information
(b) Defendant would have undue hardship getting the materials substantial
equivalent
(iii) Under Rule 26(b)(3):
(a) Must show substantial need and that the party is unable to obtain
substantial equivalent of the materials without undue hardship
(b) Opinion Work Product (e.g. mental impressions)
(i) Records of oral statements, personal memos, unrecorded statements,
conclusions, and mental impressions of an attorney
(ii) Under Hickman:
(a) Court left open the possibility that opinion work product can be
discoverable, but only in rare circumstances
(b) Requires stronger showing than ordinary work product
(iii) Under Rule 26(b)(3): The court shall protect against disclosure
p) Persons Own Statements 1208-1209
(1) Party can discover their own previously made statement without special showing
(a) Why have this rule statement of a witness is hearsay, but statement of a party is
admissible as substantive evidence, and should be obtainable bc discovery should
provide access to all evidence of case.
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(b) Statement of party is admissible as substantive evidence as an admission
(c) Statements of non-parties are hearsay
(d) Downside: lose element of surprise in trial, party may tailor testimony to statements
said before.
(i) Take deposition before getting partys statement. That way the party cannot
tailor their answers.
(2) Nonparties may also obtain their own previously made statement without the required
showing:
(a) This is one way around 26(b)(3) nonparties can request their statement then give it to
opposing party
q) Expert Witnesses [Rule 26(b)(4)] p. 1212
(1) Why involve experts in litigation?
(a) Assist the fact finder in interpreting the evidence form someone with special training
(b) Substance of law may require it
(2) Special rules for discovery of experts
(a) Until 1993 only discovery by right was by interrogatories, only done by court order.
(b) Limited discovery because of the idea that experts dont have unique knowledge and
dont want other side to shirk on its duty to prepare for trial (should get their own
expert).
(3) Discovery of experts is allowed to assist opposing party to prepare for cross-examination at
trial
(4) 1993 Amendments
(a) Rule 26(a)(2)
(i) Imposes extensive disclosure obligation without waiting for discovery demand
(ii) Identity of any person who could offer expert testimony at trial
(iii) Include detailed report by an expert witness detained or specially employed to
give testimony, give opinions, give basis and data for opinions, and
qualifications of expert
(b) Rule 26(b)(4)(A) allows routine deposition of expert to testify at trial
(c) Rule 26(b)(4)(B) addresses experts not expected to testify at trial
(i) Have them to help lawyer prepare law suit in unfamiliar areas
(ii) How to discover the information (by interrogatories or depositions)
(a) Rule 35(b) medical report, or
(b) Upon a showing of exceptional circumstances under which it is
impractical for party to obtain facts or opinions on the same subject by
any other means
(iii) Why treat them differently, why make it harder to get this expert information
(a) Dont need to prepare for testimony if expert isnt going to testify
(b) Should pay for their own expert if they want the information
(c) Main reason if your expert has an opinion that hurts your case you
dont want to give that to other side since you identified them as an
expert

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(iv) Can get ordinary discovery of expert information not obtained in anticipation of
litigation
(a) Expert who witnessed an event
(b) Identity of expert under Rule 26(b)(4)(B) identity is not a fact known or
opinion held
(v) Expert who is a regular employee of the party, or if specifically employed to
apply expertise to particular matter in anticipation of litigation, falls under Rule
26(b)(4)(D)
(5) Advisory Notes preclude discovery of experts who are informally consulted and are not
retained or specially employed, it is sufficient to tell the expert that their information will not
help the partythe other party has restricted access to them because they are not expected to
testify at trial. Experts that are regular employees, not employed for anticipation are not
protected.
(6) Only pertains to non-privileged reports only way to get privileged reports is through Rule 35,
and only then if it is asked for by other party
(a) 35(b)(2) waiver of dr. patient privilege is not mandated, if it privliged you can request a
copy of the report made by the discovering party. If report not privliged and not
acquired in anticipation it proceeds as regular discovery material.
(7) Partys delivery of work product to expert may waive immunity of that work product
(8) Berkley Photo, Inc. v. Eastman Kodak Co. 1977, p. 572
(a) Plaintiff requests discovery of four notebooks prepared by defendants attorneys
(b) Notebooks were given to experts to help in preparing their deposition testimony
(c) Judge let defendant get away with it this time but next time its discoverable
(d) Rule A partys delivery of materials to an expert to prepare testimony might waive
work-product immunity
r) Protective Orders [Rule 26(c)]
(1) Purpose to make parties less reluctant to turn over sensitive material to litigators and to
businesses adversaries
(2) Court can protect party wrt discovery sought
(3) Showing necessary to get protection:
(a) Information must be confidential:
(i) Some need showing of substantial effort to keep it secret (i.e. like confidential
stamp)
(ii) Information cannot be generally available outside of the organization
(b) Must be good cause disclosure would cause harm to the party
(4) Public Citizen v. Liggett Group 1989, p. 1218
(a) Original plaintiff sued cigarette company for not warning customers of the dangers of
smoking. Suing for wrongful death.
(b) D got protective order barring nonlitigatory use of many of documents, including
research produced by D during discovery
(c) Two years later a summary judgment is awarded to the defendant
(d) Public Citizen steps in and requests the lifting of a protective order in interest of
discovering information damaging to cigarettes. Trial court grants, D appeals, App
confirms

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(e) Court reasoned:
(i) Must have substantial showing that:
(a) Substantial efforts are made to keep information secret and not generally
available. Must be confidential.
(b) Must have good cause to protect the material disclosure must do harm
of some sort to party
(ii) Original protective orders purpose was to guarantee fair trial not perpetual
secrecy, and dismissal of case eliminated possibility of trial.
(iii) Public interest considerations favored allowing documents to be disseminated to
the public because documents dealt with an important health issue
(f) Court lifted the protective order
(g) Rule Must have substantial showing of confidentiality or good cause in order to
receive and maintain protective order
(h) RulePretrial discovery must be done in public eye unless there is a compelling reason
to deny public access
(i) how should courts react to claims of manufacturers that their information revealed in
trial is open to the public?
(i) Should courts dismiss confidentiality claims in the beginning since public
interests are at stake?
s) Sanctions for Failure to Make Disclosure or Discovery [Rule 37]
(1) Rule 37(a)
(a) A party can get an order compelling disclosure or discovery
(2) Possible Sanctions Rule 37(b)
(a) Can prohibit the party from entering the non-disclosed information into evidence
(b) Can render judgment in default of discovering party
(c) Can hold refusing party in contempt
(3) When party is faced with lack of cooperation:
(a) Must file a directive order, and
(b) May go to court to obtain a sanction if directive order didnt work
(4) Exceptions
(a) Gross Failures Rule 37(d) may immediately obtain sanctions without directive order
(i) Failure to appear at a deposition
(ii) Failure to serve answers or objections on interrogatories
(iii) Failure to serve any written response to a request for inspection
(iv) Can be held in contempt of court if fail to obey subpoena Rule 45(e)
(b) Party cannot be excused because discovery was objectionable unless the party sought
and obtained a protective order get protective order under Rule 26(c)
(5) Rule 26(g): requires signature of attorney or party on disclosures, discovery requests,
responses, and objections
(a) Signature certifies that disclosure, discovery request, etc. is complete and correct and
not in violation of rules of discovery (i.e. not burdensome, harassing, etc.)
(b) If court discovers violation, can impose sanction
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(6) Coca-Cola Bottling Co. v. Coca-Cola Co. 1986, p. 1224
(a) Facts:
(i) Plaintiff sought to compel defendant to release formula for Coke
(ii) Only two people at Coca-Cola Co. knew formula formula was kept in a vault
and would only be released upon the consent of the board
(iii) Defendant bottler alleged that the contract gave them right to purchase Diet
Coke under contracted rate for Coca-Cola Bottlers Syrup
(iv) Dispute is over Cocal-Cola bottlers syrup, bottlers says it includes diet coke
syrup
(v) Coca-Cola Co. argued that Coke and Diet Coke were different products, so diet
coke syrup isnt covered by contract for coke syrup.
(vi) Court compels discovery of formula and issues protective order evidence
necessary to determine if products are different
(vii) Coca-Cola Co. refuses to turn over formula for Coca-Cola commercial interests,
even under terms of protective order.
(b) Plaintiff requests Rule 37(b) sanction strike and rule in favor of plaintiff
(c) Court uses six factor test for a default judgment sanction to decide if degree of fault is
present (which is harsh sanction)
(i) Extent of partys personal responsibility
(ii) The prejudice to the adversary caused by the failure to meet scheduling orders
and respond to discovery
(iii) A history of dilatoriness
(iv) Whether the conduct of the party or the attorney was willful or in bad faith
(v) The effectiveness of sanctions other than dismissal, which entails an analysis of
alternative sanctions
(vi) The meritoriousness of the claim or defense
(d) Court did not allow motion for default judgment, grants motion to compel subject to
protective order
(i) Coca-Cola Co. was willful and responsible
(ii) Coca-Cola Co.s action was not prejudicial
(iii) Coca-Cola Co. had no history of dilatoriness
(iv) Coca-Cola Conduct was in bad faith
(v) The court had other effective sanctions available
(vi) And the refusal of production had a meritorious explanation
(e) Based on above test, there were effective alternative sanctions other than motion for
default judgment
(f) Rule Six element test for considering default judgment sanction, use default judgment
as sparingly as possible look for other effective sanctions to ensure case on the merits
(g) First step is for partys to ask for response, then to ask the other party for a compromise
that is acceptable, then move for failure to comply with an order
(7) Due process requires that party has right to have case heard on merits of casethis would not
support sanctions limitations
(a) Due processhas to be link between misconduct and merits
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(i) Hovee v. Elliot due process precludes a court from ruling against a party as
punishment for failure to comply with court order, but that could undermine
discovery process so the SC decided in another case there has to be a link
between the misconduct and the merits. Distinguished the hovee case on the
ground that disobedience went to merits because it supported a presumption that
party withheld evidence because the party withheld something merits to the
dispute
(b) Disobedience of discovery will easily support link to merits
(c) Requires element of volitionfault has to be found before extreme discovery sanctions
are used
(8) Should the court have ordered the disclosure of the Coca-Cola formula in the first place
(a) The formula is central to the issue, there was a protective order (which are not entirely
reliable public citizen), company could be destroyed in formula escaped. Alternatives to
turning over the formula exists like the fact they taste different. Formula isnt necessary.
(b) But nothing is sacred in court, if the formula would assist the court it should be turned
over
(c) But isnt this policy dangerous to business?
(9) Clients do often suffer from mistakes made by their attorney
(10) Rubenstein v. Kleven 1957, p. 1261
(a) Unmarried woman alleges breach of contract for companionship and other services to a
married man (the defendant), Rubenstein was a prostitute
(b) Defendant uses illegality defense and that agreement is against public policynot
authorized by lawwhich would incriminate P AND D so he is ambiguous in his
responses, didnt want to admit to adultery which was also a crime
(c) Defendant would not answer questions in deposition that might indicate whether
defendant had committed adultery
(d) Plaintiff moved to compel answer
(e) Plaintiffs counsel thought that the answer would be that no adulterous activity took
place
(f) Plaintiffs theory was that defendant was trying to leave impression that there was
adultery by not answering the question and claiming the 5th Amendment
(g) Court said he could not plead the fifth in this case. Plaintiff moved for discovery. Court
gave defendant 20 days to respond to the plaintiffs question or waive the illegality/
criminality defense.
(h) Class notes contract to provide services to married man, general defense is that it is
an illegal contract and therefore no contract exists. Plaintiff takes deposition of
defendant to establish what was illegal about the contract, thought the defendant
wouldnt say anything about adultery then illegality defense would fail. Defendant
refuses to answer, pleading the fifth, court says you cant plead fifth amendment.
(i) Rule Cant assert defense of illegality if you are involved in illegal conduct. Effective
solutions come in all shapes and sizes.
(j) Do you need defendants testimony? Get it from plaintiff. If you are going to assert this
defense you should have to discuss it.
(k) General formula for discovery relevant and non-privileged.
(i) Isnt this privileged since its 5th amendment information, shouldnt suffer for
asserting the 5th amendment.

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(11) Discovery cannot produce information privileged by 5th Amendmentif there is a valid
privilege, court cant compel answer
7. DEVICES FOR TERMINATING LITIGATION WITHOUT TRIAL (P. 102)
a) Motion to dismiss for failure to state a claim Rule 12(b)(6)
b) Motion for Judgment on the Pleadings [Rule 12(c)]
(1) Available where a pleading is legally insufficient
(2) Rule 12(c):
(a) Made after the pleadings are closed but before such a time that would delay the trial
(b) All parties shall be given reasonable opportunity to present material made pertinent to
such a motion by Rule 56
(3) Used only to resolve questions of law not disputes of fact
(4) When P makes pleading, D has opportunity to make affirmative defenses
(a) These can be struck under Rule 12(f)
(b) If ALL are struck, then P can move for judgment on the pleadings
(5) For purposes of the motion:
(a) Moving party admits his adversarys allegations
(b) Moving parties own allegations are taken as true only if they have been admitted by his
opponents pleading, otherwise motion is denied
Question 82 pg. 108 plaintiff files complain attempting to allege defamation. Defendant answers admitting factual
allegations as to the statement in question and attempts to assert defense of immunity on ground statement was made
in course of judicial proceedings. Defendant moves for judgment on the pleading what are the facts for purposes of
motion.
Those stated in plaintiffs complaint. Why? Because moving party admits adversaires allegations for
purposes f the rule 12
Plaintiff moves for judgment moves on pleadings at same point what are the facts of plaintiffs motion
o Facts stated in plaintiffs complaint that the defendant admitted, and facts in defendants
affirmative defense that statements are made in judicial proceedings
Anytime a plaintiff makes amotion for judgment the plaintiff tests their own pleadings

(6) Legal sufficiency of plaintiffs complaint is always questioned regardless of who makes
motion
(a) If D files motion, then legal sufficiency of Ps claim is questioned
(b) If P files motion, then legal sufficiency of Ds defenses AND Ps own claim are in
question because court wont allow someone to recover without stating a sufficient
claim
(c) Demurrer searches the record for the first fault in the pleading and condemns the first
complaint that is defective
(d) Defendants answer asserts that a 12(b)(6) defense that plaintiffs complaint does not
have legal sufficiency
c) Motion for Summary Judgment [Rule 56]
(1) Purpose: Judicial economy (better to end a case that would not survive at trial)
(2) In general:

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(a) Summary Judgment provides first time where court can go behind the pleadings to see
whether there really is any genuine issue as to any material fact. If not no need for trial.
(b) Movant maintains that there is no genuine issue of fact and that, upon resolution of any
disputed questions of law, he is entitled to judgment as a matter of law
(c) Ordinarily motion for summary judgment is accompanied by affidavits (of moving
party or of others) in support of the contention of the moving party that there is no
genuine issue of fact
(d) Rule 56(e) The opposing party may file like affidavits
(e) Affidavits must set forth such facts as would be admissible in evidence
(f) On the motion, and as long as they would represent admissible evidence, the court will
consider:
(i) Pleadings
(ii) Depositions
(iii) Answers to interrogatories
(iv) Admissions
(v) And any other similar material which would represent admissible evidence
(g) Burden of proof (Burden of production of evidence):
(i) Normally this is on P; if fails, then court will judge for D
(ii) If no one puts evidence then whoever had burden of production loses case
(iii) does a party have sufficient evidence to go to a jury Way to control the jury, the
judge controls the jury.
(iv) Movant seeks to establish that the party against whom the motion is made lacks
sufficient evidence to meet the burden of production in order to send the case to
the jury.
(v) Movant seeks to shift the burden by showing a reasonable fact finder must find
for the party
(vi) Burden of production shifts to the opponent who must respond with evidence of
their own sufficient for a reasonable jury to find for them
(vii) Meeting the burden but not shifting it means that a reasonable party could find
for either party must go to trial
(viii) May summary judgment ever be granted by a judge where the case is of the type
where trial by jury is constitutionally guaranteed and proper jury demand has
been made. parties would have to waive their right to trial by jury. If there is
no question of fact or issue then there is nothing for a jury to decide. Right to
jury trial assumes someone has sufficient evidence to go to the jury.
(h) The judges function:
(i) Determine whether there is a genuine matter of factual dispute, not resolve a
genuine factual dispute found to exist
(ii) If there isnt sufficient evidence to find in favor of party with burden of
production, then judge will take case away from jury
(iii) May only find that no genuine matter of factual dispute exists if a reasonable
trier of fact could not find for the opponent on the matter
(iv) Summary judgment must be denied if a genuine factual dispute is found to exist
(i) A summary judgment may be granted on the entire case or only part of it

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(j) Constitutional right to a jury trial anyone with sufficient evidence to reach a jury
cannot be depraved of a jury trial, but have to have that evidence first
(3) American Airlines v. Ulen 1949, p. 105
(a) Facts:
(i) Plaintiff sues defendant for negligence for damages in plane crash in the
mountains
(ii) Plaintiff alleges defendant was negligent in planning and approving the flight
and operation of the plane, provision in flight plans that says you have to fly
1000 ft higher than highest elevation. Plane crashed at 4000 ft elevation, and
elevation in region was 3,900 ft.
(iii) Defendant answers, admits facts, denies negligence
(iv) Interrogatories show that defendant was negligent.
(b) Why have summary judgment judicial economy.
(c) Usually plaintiffs are not the movant in summary judgment
(i) Usually like to keep case alive to look for smoking gun
(ii) Lessens potential settlement value
(iii) Jury can see plaintiffs story and give big damages
(iv) Burden of production is steep for plaintiff to prevail on this motion
(d) Usually you dont see a motion for summary judgment granted in a negligence case
this is negligence per seclassically the reasonable person standard decided by jury
(e) Issue #1: Was plaintiff entitled to summary judgment for liability?
(i) Defendant was clearly guilty of negligence per se (i.e. negligence as a matter of
law, violated a statute) their flight plan violated Civil Air Regulation (federal
law)
(a) Flight plans and evidence of flight plans, admitted to facts of their
negligence, answers to interrogatories undeniably state that the defendant
was guilty.
(b) Commercial airlines are required to fly at least 1,000 feet above the
highest obstacle within a distance of 5 miles
(c) Flight plan called for plane to fly at 4,000 feet mountain plane crashed
into was 3,910 feet
(d) Under these circumstances there was clearly negligence
(ii) Defendant asserted defense that they had implemented a zigzagging plan:
(a) No evidence to support this poor advocacy on AAs part, couldve put
evidence in record that zigzag pattern was common practice and
therefore allowable under statute
(b) Should have retrieved existing evidence by getting affidavits from pilots
saying it was the standard practice to zigzag
(iii) According to information from interrogatories defendant was clearly negligent
(f) Issue #2 Did the Warsaw Convention put limits on liability for international
commercial transportation?
(i) Regarding damages
(ii) Disagreement on meaning of French word for willful misconduct criminal
misconduct or negligence?
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(iii) Appellate court agreed with trial court that found word to mean with reckless
and wanton disregard of its probable consequences . . .
(iv) No summary judgment on the liability because the jury would have to decide if
the conduct was willful because determination of state of mind must be made
this involves factual determinations upon which reasonable people would
disagree
(v) Trial court rightly left this decision to the jury affirmed
(g) The court may be wrong because violation of a statute does not mean negligence. But
the defendant failed to bring in evidence to show that they had reason for violating the
evidence. Also, summary judgment is used to when there is no question of material fact.
(i) A reasonable jury could decide that the zig-zag plan
(ii) Should have submitted such evidence, proabably from affadavits of other pilots,
who could have said zig-zag plan could be used in conjunction with statute
(iii) But AA didnt submit this evidence, they wanted to case to go away for PR
reasons, but the main reasons is they werent being good lawyers.
(h) Weird because plaintiff moved for summary judgment
(i) Rule --
(4) Celotex Corp. v. Catrett 1986, p. 1273 (How does a defendant show absence of a material
issue at trial) {Rule 56}
(a) Facts:
(i) Plaintiff sues manufacturer whose products contain asbestos
(ii) Plaintiff alleges her husband died from being exposed to asbestos products
(iii) A number of defendants move for summary judgment Celotex being one of
those
(a) Claim that plaintiff has failed to produce any evidence that links Celotex
as one of the products involved
(b) District Court granted summary judgment because no evidence that
plaintiff was exposed to defendants product
(c) Divided panel on appeals court reversed because plaintiff did make
showing of some evidence, and defendant showed no evidence to induce
its motion
(d) Goes to United States Supreme Court no express or implied requirement
that moving party support its motion with affidavits or other evidence
(b) Supreme Court reverses nothing in rules saying that defendant must negate matters in
claim at trial the defendant doesnt have to do anything, plaintiff has burden. BUT
before trial the defendant has to demonstrate an absence of any genuine issue
(c) Non-movant would have burden of proof at trial0
(d) Two Options on how the defendant is supposed to demonstrate the absence of an issue
of fact in moving for pre-trial summary judgment
(i) Traditional approach The defendant must offer evidence so compelling that no
reasonable jury could find for the plaintiff on the issue involved (Celotex rejects
this approach) One extreme
(a) This approach appears to be the opposite what system does at trial
defendant is not supposed to have the burden of proof

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(b) This approach makes it extremely difficult for movant to compel the
opponent to preview their proof even if the opponent has the burden of
proof opponent can win just by withholding his proof
(c) Inconsistent with relaxed pleading requirements of the rules hard to for
defendant to get notice pleading dismissed at beginning, if movant has
rigorous requirement at summary judgment they cannot eliminate
factually deficient claims
(d) Tough for defendant to do this, hard to put forth that much evidence,
defendants may be stuck in cases without merit. Most would agree that
this is a tough standard for defendant to try and meet. As a result they
wouldnt get summary judgment very often.
(ii) Celotex approach The defendant need do nothing more than move for
summary judgment thereby compelling the plaintiff to come forward with
sufficient evidence to convince a reasonable jury Opposite extreme
(a) . . . the burden on the moving party may be discharged by showing
that is, pointing out to the district courtthat there is an absence of
evidence to support the nonmoving partys [affirmative] case.page
1225
(b) Can criticize this approach makes summary judgment a tool for
harassment
(i) Could force opponent to make a substantial showing
(ii) There is a strong incentive to do the motion and raise the costs of
litigation
(c) It is troublesome to enter a judgment for the defendant if there is no
evidence which exonerates the defendant
(d) One response to this is that the plaintiff must arrange evidence in
admissible form for trial anyway not too much of an inconvenience to
show some of it before trial
(iii) Middle ground view moving party without the burden of proof must put on
enough evidence to support a verdict in his favor
(a) Rejected the traditional approach
(b) Made it clear that summary judgment is an important part of the Federal
System
(c) Notice pleadings are rarely dismissed, summary judgment motions must
police the pleadings for frivolous claims
(d) to get summary judgment, defendant must show the basis of its motion
by identifying materials in the record that supposedly supports a
summary judgment
(e) What does P need to do to oppose summary judgment
(i) Can use inadmissible evidence if it can be reduced to admissible evidence at
trial
(ii) In this case, decedents letter could not be reduced to admissible evidence
because D didnt get to cross-examine decedent and he is now dead
(iii) Might be able to use Hoffs letter
(f) On remand, Hoffs letter and Ps indication that Hoff were enough to avoid summary
judgment

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(i) Judge Bork the plaintiff had made no showing that the official had personal
knowledge of the exposure
(g) Brennan (dissent, Celotex)
(i) Need for moving party to search record and identify anything that bears on the
issue then explain to the court how in the light of the material summary
judgment is appropriate
(ii) Problem Assumes there is a record with the material in it Suppose they move for
SJ on day they file their answer, what would they have to do to. Rennan
assumed that answer is in the record not just the complaint. Would the plaintiff
have to show they have enough evidence to jury, well Rule 56 says you need to
allow reasonable time for discovery 56(d) court can order a continuance to allow
discovery.
(iii) Expects defendant to assert affirmative evidence
(iv) What is defendant expected to do? --Provide proof they tracked plaintiff around
for his whole life in order to negate possibility of liability? Cant submit an
affidavit that shows the defendant had never been near their product, all they can
do is argue they have no evidence to support a finding that plaintiff had been
exposed.
(h) How do courts read Celotex?
(i) Some read it saying the movant has no burden of production evidence and can
discharge that burden by pointing out non-evidence in the others case
(ii) Most lower courts say it does not impose significant triggering burden on the
movant, and have either reduced burden dramatically or ignored it completely
not requiring much of defendant in way of burden on the motion for summary
judgment because Celotex is ambiguous
(i) SC rejects that defendant needs to do anything when requesting summary judgment,
and it is not to be disfavored, its supposed to be an integral part of the fed. Rules.
Because notice pleadings are rarely dismissed, the court must police them. Encourages
judges to grant summary judgment in cases.
(j) What showing does a defendant has to make to show summary judgment, a party
seeking sum j always bears responsibility of the basis of its motion by identifiying
materials from the record and affadavits that supposedly support sum j. Where the
argument is being made is that the plaintiff cant prove an element its murky, its not
enough for the moving party to rely on a conclusory assertion that the plaintiff doenst
have enough evidence.
(k) Presumes some discovery by defendant to determine bases of plaintiffs case as a
requisite to the SJ motion. SJ is only proper after adequate time for discovery and upon
motion.
(l) What would the plaintiff have to do on the initial disclosures in discovery
(i) Witnesses, all docs pertaining to claim,
(ii) Once disclosure is complete is defendant then in position to move for summary
judgment, on ground plaintiff has not found evidence to support claimyes
(m) If the defendant just moves for SJ and plaintiff comes back with nothing then SJ
motion is granted and move in Ds favor case is dismissed, attach a rule 11 motion for
sanctions since there was no factual basis for claim (just a possible strategy)
(n) What does plaintiff have to do to defeat motion a party is not required to dipose their
own witnesses, the plaintiff has to show there will be admissible evidence at trial
(evidence a reasonable jury could find for the plaintiff). Inadmissible evidence may be
used to oppose summary judgment as long as it can be reduced to evidence that is
admissible at trial. Catretts letter could be (even though not admissible) if the guy who
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sent it could testify, the fact the letter is inadmissible is not important, we dont know if
Hoff can provide admissible evidence to support the claim of exposure. (letter is on pg.
1282)
(i) Can Hoff testify based on personal knowledge that Catrett was exposed to
defendants asbestos? Hard to say if he had personal knowledge of Catretts
actual contact with asbestos. To his understanding which isnt strong enough
(5) Court made it easier to get summary judgment. no longer a disfavored device
(a) Inadmissible evidence may be used in motion
(b) Moving party doesnt have to prove anything
(c) Is it a wise policy basic showing of issue of fact promotes efficiency although
counter argument is that summary judgment motions take time, effort, and money to
prepare and process and only save money if movant wins motion if not they just add
expense.
(6) Frito-Lay v. Willougby 1988, p. 634
(a) Facts:
(i) Plaintiff had initial burden of proof
(ii) Defendant had ultimate burden of proof
(iii) Defendant files for summary judgment
(iv) Plaintiff remains silent
(v) District court grants motion
(b) Appeals court affirms
(c) Rule Celotex rule applies where a silent, nonmoving party is to bear an initial burden
of proof at trial
(d) RuleThe nonmoving party must come forward with specific facts showing that there
is a genuine issue for trial
(7) Summary judgment before discovery
(a) Summary judgment assumes some discovery as a prerequisite
(b) Rule 56(f) allows court to require continuance of discovery in motion for summary
judgment if non-movant party has not had opportunity to make full discovery
(c) Rule 56(f) premature motion for summary judgment
(i) If party cannot present facts essential to justify partys opposition must be
apparent from reasons stated in the affidavits
(ii) Court can allow a continuance for discovery
(8) Argument for eased summary judgment: provides just results without wasting valuable
judicial resources (p. 1236)
(9) Arguments against eased summary judgment (pp. 1237-38)
(a) Court favoring economic gains over accuracy and justice
(b) Helps Ds more often than Ps, and Ds are haves of society while Ps are have-nots
(c) Doesnt save that much of judges time since he must now look at record and draft an
opinion, may be as time-consuming as a trial
(d) Also, SJ only time-saving when it is granted, which doesnt always happen
B. Trial

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1. THE JURY (P. 140) RULES 38,38, 47, 48
a) General
(1) 7th Amendment guarantees a right to a jury trial!suits of common lawthe right of trial by
jury shall be preserved
(2) Determining whether or not a case will reach a jury or stay with the judge:
(a) Old way was historical test!look at those trials that were allowed a jury as of 1791
(b) Judge may not let the case go to the jury if there is not enough evidence to indicate
factual dispute
(c) Jury only passes on questions of fact, so if judge determines that proof is insufficient to
warrant a reasonable jurys finding a claim or defense established, case is taken from
jury
(d) Jury right may be waived if not claimed
(i) Rule 38(b) A jury trial can be demanded any time:
(a) After initial action but
(b) 10 days after the service of the last pleading directed to such issue
(ii) Rule 38(c) Jury will hear all issues unless otherwise specified
(iii) Rule 38(d) Failure to demand a jury trial constitutes a waiver of the right
b) Jury Characteristics
(1) At common law, had 12-person jury and verdict had to be unanimous
(2) Right to trial by jury in criminal case is protected by 6th Amendment
(3) Is the number of jurors right? (Williams v. Florida)
(a) A six-person jury, acting unanimously in a (non-federal) criminal trial is constitutional
(b) Supreme Court rejected idea that reliability of jury is a function of size
(4) Most federal district courts changed to six-person juries in civil trial
(5) Constitutionality of six-person juries (Colgrave v. Battin pg 142)
(a) Plaintiff asserted local rule (six-member jury in civil cases) violated 7th amendment
right to trial by jury. Made a 7th amendment constitutional claim.
(b) 7th Amendment doesnt say anything about jury characteristics like number of jurors
no evidence that Framers wanted to preserve the common law details of jury trial, the
language in the 7th amendment was a compromise between states, leaving it up to the
states to interpret the amendment
(c) (Aside) reason for limiting interpretation to intent of framers is to protect laws from
judicial interference, dont want judges imposing their own values
(d) 7th Am. doesn't bind civil courts to procedural details of jury trial in a 1791 court (when
amendment passed)
(e) Court ruled:
(i) Number of jurors is not part of substantive aspect of the right to a jury trial
(ii) No constitutional right to 12 member jury at trial
(iii) Found that there was no difference between a jury of 12 and a jury of 6
(6) Unanimous five-person juries violate the Constitution (Ballew v. Georgia)
(a) Groups below 6 would:

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(i) Adversely affect group deliberation
(ii) Adversely affect cross-sectional representation
(iii) As a group, less likely to remember facts accurately
(iv) Less likely to overcome biases
(v) Small juries erect barriers to the representation of minority groups in the
community
(7) Rule 48
(a) Federal courts seat not fewer than 6, not more than 12 jurors
(b) Unless parties stipulate otherwise:
(i) The verdict shall be unanimous
(ii) No verdict shall be taken from a jury reduced in size to fewer than six members
(8) Typically now federal civil juries are eight-person
(9) Practical considerations with 6-person juries (p.from 1996 Advisory Cmte. notes on purpose
of proposed amendment to Rule 48 increasing requirement to 12-person jury)
(a) Decrease representative qualities
(b) Potential for domination
(c) May yield fewer hung juriesin larger juries, some jurors can hide their
disagreement with other jurors
(d) Inability to rise above biases of individual members
(e) Fewer minorities on juries
(f) If there is a dissenter there will most likely only onethis person will more likely be
overcome by the majority in 12 person jury than in 6
(10) Constitutional right to a unanimous verdict of 12-person jury
(a) Old decisions Verdict must be unanimous (Springville v. Thomas, 1897 and American
Publishing Co. v. Fisher, 1897)
(b) Rule 48 says parties can stipulate to verdict by a stated majority
(c) Recent decisions Verdict can be non-unanimous in state criminal trial (Apodaca v.
Oregon, 1972 and Johnson v. Louisiana, 1972)
(i) Sharply divided United States Supreme Court
(ii) Must be 12-person jury
(iii) State criminal trial
(iv) 9-3 verdict is at or very near the constitutional floor for 12-person state criminal
juries
(d) Can you hold off trend of modern cases of moving away from unanimous decision ?
(i) Probably wont be able to make criminal-civil distinction for unanimity because
this was rejected in Colgrove.
(ii) State-federal distinction probably wouldnt hold either because court went from
Williams (state) to Colgrove (federal)
(iii) Is unanimity a greater concern than number of jurors? No Williams (number of
jurors) to Johnson (unanimity case)
(11) Non-unanimous verdict by a 6-person jury is unconstitutional (Burch v. Louisiana, 1979) to
preserve the substance of right to jury trial
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c) Jury Selection
(1) General
(a) Largely a matter of local rule and practice
(b) Litigants are entitled to fair and impartial jurors
(c) Ordinarily voter registration lists were used:
(i) Not a fair cross-section of the community
(ii) Lower socioeconomic groups, minority groups, and younger people were under-
represented
(d) Critics say need to supplement lists ! use pool of licensed drivers, but even this isnt
perfect system
(2) Voir Dire
(a) Rule 47(a) Examination of jurors
(i) Purpose: to see if there is good reason why any of them should not serve in the
case
(a) Excluding jurors for cause Suppose juror knows a party in the case, or
juror is prejudice, difficulty in judging partially.
(ii) Debate: whether judge or attorneys should do questioning
(a) Primarily done by the judge in Federal courts
(b) Primarily done by attorneys in state courts
(iii) Can dismiss a juror for cause if he has some conflicting interest related to
case: relate to ability of juror to be fair and impartial
(b) Peremptory Challenges
(i) Three allowed in civil cases
(ii) Allow litigants to dismiss a juror on a gut feel
(c) Why preemptory challenges (when there is no ground to exclude someone for cause)
(i) Litigants can eliminate people they dont like or fear
(ii) Sometimes the questioning may alienate a juror, so litigant doesnt want them on
the jury, but the litigant may have no reason to dismiss with cause
(iii) Allows the litigant to eliminate people for reasons that you just cant say in
publicperemptory challenges allow litigants to dismiss jurors without having
to embarrass jurors or say unseemly things
(3) Race or gender may not be reason for peremptory challenges (Supreme Court decision in
Batson v. Kentucky 1986) ! goes against equal protection under 14th amendment Empirical
data shows that jury personalities dont matter as much on verdict as evidence presented in
case, and the way the evidence is presented and manipulated by each attorney
(4) [look up] Edmondson v. Leeson race based preemptory challenges in civil cases violates equal
protection clause of constitution. J. Scalia points out that the this actually hurts minority
defendants, bc under Batson decision it was only prosecution who couldnt use race based
challenges. Now however, the criminal defendants are prevented from race based challenges.
(5) SC court extended Batson and Edmonson to sex based challenges in Jay v. Alabama in 1994.
(6) Doesnt evidence convince the jurors and not the actual jurors.
2. ORDER AND METHOD OF PROOF (PP. 156-158, 1291-1295, 1301-1314, 1319-1325) RULES 31(B) AND
50(A)

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a) Burden of Proof
(1) Burden of Production (a.k.a. producing evidence)
(a) Test whether the party has sufficient evidence to go to the jury
(b) Generally, burden of production follows pleadings
(i) If jury is not persuaded on plaintiffs evidence supporting his allegations then
plaintiff will lose
(ii) If jury is not persuaded on affirmative defenses then defendant will lose those
defenses
(c) Allocation of burden of production (p. 1291)
(i) The party having the affirmative of the issue
(ii) The party whose case the fact in question is essential
(iii) The party having peculiar means of knowing the fact
(iv) The party who has the burden of pleading it
(d) Usually plaintiff has initial burden of production
(e) Court doesnt leave burden wholly on jury:
(i) Must be preponderance of evidence in favor of the party who bears burden
(ii) Existence of the fact must be more likely than not
(iii) Jury must be able to be persuaded that what the party is presenting is more likely
than the alternative
(iv) Sometimes higher standards are imposed on a partyclear and convincing
evidence
(f) When plaintiff has trouble meeting burden of proof it can be shifted to the defendant
when substantive policies dictate (Summers v. Tice (California SC) pg 1307)
(i) Plaintiff and defendants were quail hunting
(ii) Defendants shoot in direction of plaintiff and hit him in the eye
(iii) Plaintiff cannot prove which one did it
(iv) Court doesnt want to leave the plaintiff without remedy
(v) Court says that each defendant was culpablethe burden must shift to the
defendants to prove it wasnt their shot that hit plaintiff0
(vi) This rule has been applied to other casesinnocent plaintiff should have remedy
from negligent defendants, negligent defendant will be liable proportional to
their negligence unless they can prove otherwise
(g) Market Share Liability Also look up other tort case regarding DES drugs and the 300
companies that distributed drugs. Defendants were all negligent and had to answer for
their negligence through their market share of the drugs sold.
(h) Burden when evidence indicates defendants innocence. Reed v. San Pedro pg. 1313
(i) Heifer got out onto railroads and was killed by defendants train.
(ii) No liability for the railroad if they can prove the cow went through the gate and
would be liability if the cow went through the broken fence
(iii) Was it more likely than not that the cow went through the broken fence
(iv) Defendant should have won

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(v) Cow was killed a mile from the broken fence, and inference was that cow went
through broken fence
(vi) Plaintiff did not show it was more likely than not that the cow was through the
broken fence
(vii) Where the evidence points to two likelihoods, one resulting in defendants
liability it is up to the plaintiff to present evidence that the defendant was more
likely than not at fault.

(2) Evidence not constituting affirmative proof of facts: Failure to testify [stimpson] disbelief
[cruzan] demeanor [dyer] are not sufficient to meet burden of proof. If Plaintiff has to prove
their case through an adverse party they are in a difficult situation.
(a) Evidence did not warrant submission of the question to the jury (Stimpson v. Hunterp.
1319)
(a) Dentist sues patients father
(b) Question to jury: Was the work done by the [dentist] authorized or
ratified by the [father]?
(c) Father and son dont testifyjury assumes they consented, rule in favor
of P dentist
(d) Failure of defendant to testify [denying authorization] not equal to
affirmative proof of facts necessary to maintain action !D didnt have to
testify unless and until evidence submitted by P warranted submission of
case to jury
(e) Why should this rule apply to this plaintiff and not others? No answer.
(i) Innocent defendant may still be punished resulting in injustice.
One of them is negligent, but not both.
(ii) Burden shifted because defendants have more knowledge of their
actions.
(b) Rule: While the falsehood of testimony may add to the weight to be given evidence to
the contrary, the testimony by itself does not go far enough to establish the fact it denies
(i) Mere disbelief of denials of fact is not equivalent to affirmative evidence
(Cruzan v. New York Central & Hudson River Railroadp. 1319)
(i) P on behalf of deceased sue railroad company for negligent death
brakeman on one train getting hit by another
(ii) Fireman and engineer say they did not see brakeman therefore
they could not warn him
(iii) Even if jury could believe denial of facts which must be proved,
there is no evidence that D saw P
(iv) There is no negligence because D had no duty to look out for P
(v) Couldnt a jury disbelieve the defendants testimony?
(vi)
(ii) Guinan v. Famous Players-Lasky Corp. p. 1319
(i) P got injured by igniting of scrap film
(ii) D (agent of corporation being sued) gave scrap film to Shirley,
who then put in a bag which caught fire

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(iii) D says he had authority to dispose of scrap film ONLY by
delivering to Film Transfer Co.
(iv) Held: testimony created issue of fact for jury on scope of
employment!jury might have believed testimony about Ds
authority but not limitation of authority
(iii) Failure to testify and demeanor of witnesses are not sufficient (in and of
themselves) for trial to go to jury (Dyer v. MacDougall, p.1319)
(a) Plaintiffs allege slander relying upon testimony of witnesses
(b) Defendant produces affidavit from witnesses stating that the slander
never happened and moves for summary judgment
(i) No evidence to support the slander claim, because witnesses and
people who said slander denied hearing it.
(c) P get opportunity to take deposition of witnesses, but chooses not to:
probably believes he can get admission in court that wont get in dep., i.e.
Ps claim depends on demeanor of witnesses in court. P claims issue
needs to submit issue to jury so they can judge the witness.
(d) P cant testify to situation because he wasnt presentanything he says
would be hearsay
(e) Appellate court rejects argument that P should be able to survive SJ:
(i) There would be no way for appeals courts to review a trial courts
judgments if based solely upon demeanor of witnessesverdict
would rest on credibility evidence and appeals court cant see
demeanor- jury might observe the demeanor of these witnesses
and disbelieve them and they might decide the truth was the
opposite of what they where claiming
(ii) If demeanor is enough to get to the jury, all plaintiff would have to
do is call defendant to the stand and argue the demeanor of
defendant and groundless suits would reach the jury all the time,
all the plaintiff has to do is get the defendant to deny the
plaintiffs story.
(iii) There would be no burden of proof obstacle for plaintiff
(iv) Once plaintiff meets the burden of production via other evidence the above type
of evidence can be used to supplement the case
(3) Burden of Persuasion
(a) Where a trier of fact is in doubt of the fact submitted to them, cant decide if one party
has proved a particular fact, the party who will lose if the trier of fact cannot make up
their mind they bear the risk of the non-persuasion on the issue.
(b) Burden of persuasion is on the party who must persuade the trier of fact of the accuracy
of the factual assertions!implemented when trier of fact has DOUBT about a fact
(c) Burden of persuasion NOT ALWAYS on same party as had initial burden of production
for that issue
(d) Judge formulates guidelines for the jury for the standard of persuasion: 1) who has the
burden, 2) degree of persuasion that jurors mind must be brought to
(i) Degree of certainty required to find that a contested fact exists (A.K.A.
Standard of Proof)
(a) Preponderance of the evidence (civil trials)
(b) Beyond a reasonable doubt (criminal trials): higher standard

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(c) Clear and convincing evidence (fraud claims)
(ii) Usually preponderance of the evidenceexistence of the fact is more likely than
not
(iii) Some civil cases use higher standards (Fraudclear and convincing)
(e) When evidence points to two equally strong inferences, plaintiff loses (Reid v. San
Pedro, Los Angeles & Salt Lake Railroad pg 1350)
(i) Plaintiffs cow was killed by defendants train
(ii) Cow could have accessed the tracks via an open gate (then Ps fault) or a hole in
the fence which was under defendants responsibility to repair (then Ds fault)
(iii) Was it more likely or not that the cow went through the broken fence?
(iv) Cow was closer to the gate when she died, one mile from fence!inference
strong if not stronger that cow went through the gate
(v) Plaintiff couldnt show by the preponderance of the evidence that the cow exited
via the hole in the fence (50% / 50%)
(vi) If changed facts that cow was killed right by broken fence, then verdict (for P)
would be upheld
b) Order of proof
(1) Ordinarily plaintiff has initial obligation to bring forward evidence in support of the disputed
elements of the claim
(2) Process:
(a) Opening Statements
(i) Usually plaintiff then defendant before evidence is presented
(ii) What the issues are and what is going to be presented
(iii) Not evidence but they are a preview of the evidence
(b) Presentation of evidence (case in chief)
(i) Party with the burden of proof goes first with its case in chief
(ii) Direct examination/cross-examination and redirect/re-cross-examination process
with each witness
(iii) Why is questioning process used?
(a) Some information is not admissible
(b) Jury must hear all relevant evidence unless the probative value is out-
weighed by other considerations
(c) Objectionable material may be withheld before the answer is given to
keep information from being presented to jury because opposing party
objects to material
(iv) In theory only supposed to put on case in chiefjudges allow some leeway and
allow the plaintiff attorney to anticipate defenses and rebut them
(3) Defendants Case (or side without the burden of proof) RULE 50
(a) Defendant may cut short and rest without offering proof
(i) Defendant is confident the plaintiff has not sustained the burden of proof
(ii) Defendant has little evidence or may risk backfiring
(b) Ordinarily, proceeds to offer his own evidenceopposing evidence and counterclaim

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3. MOTIONS AT THE CLOSE OF ALL THE EVIDENCE [Rules 50(a) & (b)]
a) General
(1) Same standard as summary judgment
(2) Judge is held to a reasonable jury standard
b) Motion for Judgment as a Matter of Law (A.K.A. Directed Verdict) [Rule 50(a) & (b)]
(1) Either side can make motion
(2) Test if a jury could reasonably find a verdict for the opponent
(3) Question 29 pg. 181, is there an action, in a non-jury trial, a motion analogous to a motion for
judgment as a matter of law at the close of evidence
(a) Rule 41(b) motion for an involuntary dismissal, used by defendant when there is no
jury
(4) If P produces absolutely no or not enough evidence for factfinder to find a proposition for
which P has BOP, then judgment as a matter of law for D should be granted
c) Directed Verdict Evidence Tests
(1) Favorable Evidence Only Test [one extreme]
(a) Court should only look at evidence favorable to the opponent of a motion
(b) Completely ignores all other evidence (including unfavorable evidence)
(2) Set Aside Test (a.k.a. All Evidence Test)
(a) Court looks at all the evidence in the record
(b) Judge should direct a verdict if looking at all the evidence, he is bound to set aside a
verdict for the opponent to the motion
(3) Qualified Favorable Evidence Test (same as motion for summary judgment)
(a) Origination (Pennsylvania Railroad v. Chamberlain pg 1335, substantial evidence
test?)
(i) Collision of train cars, P had one witness
(ii) Brakeman on string of cars, string of cars were behind him
(iii) Plaintiffs contention that the railroad employees allowed their string to hit his
string causing his death, but 3 railroad say their string never collided with the
other string
(iv) Conflicting testimony:
(a) Railroad employees testified that their string did not hit plaintiffs, they
were in position to see
(b) D had corroborating witnesses none of them saw the cars hit one
another
(c) Plaintiffs witness (Bainbridge) was unclear as to what happened, was
paying only slight attention, only heard crash but didnt see it, was not in
a position to see if P and Ds strings were moving together, which he says
they were
(v) Trial Court directed verdict for D, Appeals Court reversed
(vi) United States Supreme Court held in favor of D court ruling:
(a) Rule 1: Where proven facts give rise to two (equally supported)
inconsistent inferences, neither of which being established, judgment as a

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matter of law must go against party who was required to sustain one of
these inferences before being entitled to recovery
(b) Rule 2: consider favorable evidence for plaintiff and unfavorable
evidence that is uncontradicted and unimpeached of Ds witnesses
(i) Plaintiffs testimony is that of Bainbridge (inference, not a credible
witness, impossible for him to see if there was a crash) and
Defendants uncontradicted (because they said there was no crash)
(c) Rule 1 applied: Ps witness provided only an inference, his conclusion of
what might have happened; this is not credible evidence of actual
occurrence, and also doesnt negate D employee testimony!judgment
for D as a matter of law
(d) Rule 2 applied: favorable evidence for P coming from Bainbridge,
unfavorable coming from D employees (the uncontradicted unimpeached
testimony of the railroad employees); even with these P could not prevail
because Bainbridge couldnt have possibly seen the two trains collide.
Bainbridges testimony was too insubstantial to sustain a verdict in the
Ps favor
(vii) Scintilla Rule (any evidence in favor of nonmovant; the case could go to the jury
if there was ANY evidence to support a parties contention) vs. Substantial
Evidence Rule (there must be substantial evidence in favor of nonmovant; some
evidence is not enough, there has to be evidence sufficiently persuasive that the
judge thinks a jury can properly perceive) . The general trend of the courts is
to use the Substantial Evidence Test. SCOTUS Rejects the scintilla rule in
Pennsylvania Railroad.
(viii) Hypo: Suppose Bainbridge is only witness! still Bainbridges view of facts is
speculation, based on guess, so should uphold directed verdict for D. You still
have to look at the uncontradicted and unimpeached evidence; STANDARD:
evidence favorable to non-movant and uncontradicted evidence of the
movant. So the plaintiff (the non movant has some evidence that is not
substantial and therefore shouldnt be considered, and the defendant the
proponent of the motion has no evidence
(ix) Hypo pg. 1340: now Bainbridge can see two strings collide; and the testimony
of the other witnesses as summarized in the opinion would you uphold the
direction for D?
(a) What uncontradicted evidence is favorable to the movant (defendant).
Bainbridge says there was and railway employees say there was. So there
is a contradiction.
(b) Have evidence that is favorable to opposition of movant.
(c) SO THE JUDGE WILL ONLY CONSIDER BAINBRIDGES
TESTIMONY
(x) What is the standard? Look at the evidence favorable to plaintiff plus evidence
favorable to defendant that is un-contradicted and un-impeached
(4) Lavender v. Kurn1946, p. 1340
(a) Synopsis: P is representing decedent, who was killed near railroad tracks, had skull
fracture; P says dec. was hit by mail car hook; D says he was murdered by hobo; Doctor
testifies that could have been hit by mail hook or some object wielded by indv.; suit
under FELA (Federal Employee Liability Act)
(b) Procedure: Missouri S. Ct. overturned verdict for P saying case shouldnt have gone to
jury; U.S. S. Ct. reverses

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(c) Rule: Only when there is a complete absence of probative facts to support the
conclusion reached does a reversible error appear. Wherever facts are present that
require reasonable persons to draw different inferences, a measure of speculation is
required to determine the most probably inference.
(d) Rule applied: jury had to do some speculation and conjecture to come up with verdict,
but that doesnt mean it should never have gone to them
(5) Some argue that the rule applied in Lavender should be restricted to FELA cases, others say
that it is applicable in all cases
(6) How would jury decide between competing stories?!doesnt matter, the fact that jury
COULD decide and so case should go to jury, fact that jury has a hard time means that P has
provided substantial evidence
(7) Another Qualified Favorable Test: Wilkerson v, McCarthy1949, p. 1341
(a) Synopsis: P injured when fell from narrow plank stretching across deep pit in railroad
yard; P and another employee say plank habitually used as walkway, other D employees
say no; there is conflicting evidence
(b) Conflicting evidence of witnesses.
(c) Procedure: Utah S. Ct. affirmed directed verdict for D; US S. Ct. reverses holding there
was sufficient evidence going to the jury
(d) STANDARD: look only at evidence of reasonable inferences that support case of
plaintiff against whom the motion is sought. Look at evidence favorable to
opponent of motion (but maybe rest of the evidence to determine inferences that
were reasonable).
(e) Rule: When P claims injury attributable to Ds negligence, it is function of T. Ct. to
determine if evidence in its entirety would rationally support verdict for P, assuming
jury took view of evidence most favorable to P, which it is entitled to do! look at all
evidence and then give credence to that most favorable to P
(f) Rule: When deciding if evidence sufficient to go to jury, need only look at evidence
and reasonable inferences which tend to support the case of the nonmoving party (from
Reeves)!here again looking at favorable evidence to P and uncontested,
uncontradicted evidence unfavorable to P
(g) Rule applied: In this case, jury could rationally support verdict for P, so case should go
to jury
(h) RE Chamberlain look at Bainbridges, then uncontradicted testimony of employees to
see if it is reasonable to infer from Bainbridges testimony that there was a collision.
You would get the same result
(i) QUESTION 9 1341. GOOD EXERCISE
(i) When fed courts decide directed verdict motions they do not limit themselves to
the evidence favorable to non-movant, and sometimes consider evidence
favorable to movant when it is uncontradicted.
(ii) [first part of question] Plaintiffs only evidence showing ownership, referred to
dog as their dog, so if wife moved for DV at close of Ps case should it be
granted and doesnt present and contradicting evidence.
(a) Consider evidence favorable to non-movant, and uncontradicted evidence
favorable to movant.
(i) Evidence of non-movant (defendant) is plaintiffs admission that
it was their dog.
(ii) Evidence uncontradicted in favor of plaintiff is not submitted. She
rests after case.

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(iii) Should not grant directed verdict against defendant. A reasonable
jury could find for the plaintiff.
(iii) Defendant goes on to offer uncontradicted evidence of the husbands sole
ownership.
(a) Evidence favorable to non-movant (defendant) is that they said it was
their dog.
(b) Evidence that is uncontradicted and unimpeachable to movant (plaintiff)
is the husbands sole ownership of the dog
(c) The motion should be granted for the wife, husband is still liable but wife
is out of the case. The our dog statement is no longer considered by a
jury.
(8) Simblest v. Maynard1970, p. 1346
(a) Synopsis: Ps car collided with fire engine driven by D during blackout; P claims had
green light and then blackout turned traffic light off; other witnesses say blackout 10-15
minutes earlier; P claims didnt see fire engine flashing light or hear siren; all other
witnesses say one or other or both were on
(b) Procedure: Ds motion for directed verdict denied; Jury verdict for P; D motions for
judgment nov (notwithstanding the verdict) and T. Ct. grants; P appeals; US Appeals
Court affirms
(c) Rule 1: Under VT law, if fire dept. vehicle sounds siren or displays red light, all other
vehicles are required to pull over to side until fire vehicle has passed; failure to do so is
negligence on part of other driver
(d) Rule 2: the evidence standard has not been determined for diversity cases (federal
cases involving parties from different states in amount over statutory minimum), but in
this case there are two options
(i) Vermont standard: when considering evidence in light most favorable to party
against whom motion has been made, may consider ALL the evidence
(ii) Federal standard: consider only evidence favorable to the opponent AND
uncontradicted, unimpeached evidence favorable to the movant!QUALIFIED
FAVORABLE EVIDENCE STANDARD (See Reid v. Nelson, p. 1380)
(iii) Class notes evidence favorable to plaintiff is that she didnt hear or see lights
and sirens. Evidence favorable to defendant is the flashing lights and siren was
on.
(a) Under the Qualified favorable evidence test Plaintiff is non-movant and
the Defendant is movant
(i) Uncontradicted evidence favorable to the movement is lights were
flashing because plaintiff didnt have opportunity to observe the
light.
(ii) Evidence favorable to plaintiff, is so insignificant it should not
even be considered.
(iii) Defendant witnesses are uncontradicted. Therefore evidence
favorable to movant should be considered and in the absence of
favorable evidence to non-movemant is absent. So directed
verdict was correct.
(e) Rules applied: The court applied the Federal standard. Under either standard, P is
contributory negligent so judgment nov is okay
(i) Vermont: if consider ALL evidence, clear from other witnesses testimony that P
is contributory negligent

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(ii) Federal: this is more restrictive standard, but Ps is ONLY testimony that there
was no light or siren; P doesnt have opportunity to see the light; just because he
didnt hear or see it doesnt mean there is actual evidence that siren/light werent
in operation!Ps proof so insufficient, that it is as if there was no proof at all.
The Ps testimony that he did not see the lights was tantamount to no proof
on the issue, treated as the equivalent as an absence of proof. Therefore, Ds
witnesses that the light was flashing is uncontradicted and therefore
taken into account. Found the P was contributory negligent as a matter of
law.
(f) Hypo: What if Ps observation difficult but not impossible?then Ps evidence
wouldnt be so insufficient so as to be like no proof at all
d) Look at evidence for directed verdict in same way as look at it for summary judgment
(1) Reeves v. Sanderson Plumbing Products, Inc.2000, p. 1349
(a) Synopsis: P sues D employer for discrimination on basis of age; Ps case consists
exclusively of prima facie case of discrimination and sufficient evidence for trier of fact
to disbelieve Ds legitimate nondiscriminatory explanation for its action
(b) Held: D not entitled to judgment as a matter of law
(c) Rule: Wilkerson rule of looking only at evidence supporting nonmoving party refers to
evidence to which T. Ct. must give credence NOT evidence it should review
(d) Rule: In directed verdict decision, court should give credence to evidence favoring the
nonmovant AS WELL AS evidence supporting the moving party that is uncontradicted
and unimpeached, as long as evidence comes from disinterested witnesses
4. SUBMISSION TO JURY AND RETURN OF VERDICT
a) Types of Verdicts
(1) Different Forms of a Jury Verdict
(a) Special Verdict [Rule 49(a)] jury makes specific findings of fact and judge applies
the law to the facts. Here, the jury only finds the facts then the judge applies the law to
the facts
(b) General Verdict [Rule 49(b)] judge instructs the jury on the law and the jury applies
the law to the factsmany times interrogatories accompany jury charge. Jury only says
who wins and what relief is granted
(c) Judge determines the type of verdict to use
(2) Advantages of Special Verdict
(a) Gives the court more power and control over the jury
(b) The jury doesnt have to apply the lawjudge can more aptly apply the law; the jury
may not understand the law and therefore may have trouble applying it.
(c) They will not know how their factual findings will effect either party may help
eliminate bias.
(d) Some argue it improves the efficiency and reliability of the judicial process
(3) Disadvantages to Special Verdict
(a) Weakens juriesmay take away power of jury to nullify unjust legal rules; one of the
purposes of juries is to tempter unjust law, so a special verdict practice might weaken
the power of the jury when their only finding the facts and not applying the law to the
facts (think of Peeveyhouse award of $5000).
(b) Should jury have power to nullify unjust legal rules by means of a general verdict?
(i) Could argue that legislature should change the law

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(ii) On other side, could say allowing it will allow jury to right a potential wrong,
refuse to use laws that are unfair to racial minorities like crack cocaine
punishment as opposed to powder cocaine punishments.
(c) Indicates a mistrust in juries
(d) One of the purposes of the jury system is to temper strict rules of law so the jury can do
justice in the particular case
(e) If only finding factsthe jurys power is severely weakened
(4) Closing Statements
(a) No right to give closing statement to judge but it is a common practice
(b) When theyre using a general verdict, the jury is given jury instruction
b) Jury Instructions
(1) Jury instructions come from counsel on both sides-submitted to judge. They try to come up
with a statement of the law that will be favorable to their case
(2) Jury instructions are generated from:
(a) Pattern jury instructions
(b) Counsels own legal research
(3) Rule 51
(a) Allows parties to make written requests for specific jury instructions
(b) Court must advise counsel of the jury instructions before closing statements
(c) Objection to instructions:
(i) Must object before the jury retires to consider verdict
(ii) Must state distinctly the matter objected to and the grounds of the objection
(4) Must object to the instruction under Rule 51 before jury deliberates or the right to appeal on
the instruction is lost
(5) Rule 52(a) Non-jury trial
(a) When there is no jury and judge must try facts and law; the jury will find facts
separately and conclude specially as a matter of law
(b) Judge must find facts specially and state separately his conclusions of the law thereon
(c) Purpose:
(i) Aids the appellate court on appeal
(ii) Makes judge more careful in finding facts
5. MOTIONS AFTER VERDICT EVEN AFTER VERDICT IS RENDERED, THE LOSER HAS TWO OPTIONS
AVAILABLE

a) Renewed Motion for Judgment as a Matter of Law [Rule 50(b)]


(1) General
(a) Renewed motion for judgment as a matter of law replaced judgment
notwithstanding the verdict (JNOV)
(b) Motion must be made within 10 days after entry of judgment
(c) Sets aside the verdict and judgment is entered for the movant
(d) Motion for directed verdict is at close of all evidence before case goes to jury; Renewed
motion for judgment is after jury comes back with verdict

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(e) Standard is the same as for judgment as a matter of law (directed verdict)only
difference is timing; uses the same QUALITIVE FAVORABLE EVIDENCE TEST
(f) Must have made motion for judgment as a matter of law (directed verdict) in order to
motion for a renewed judgment as a matter of law after the verdict; neither the trial
court or appellate court may order j.n.o.v if no directed verdict motion was made at the
beginning of the case
(2) Judges tend to like judgment notwithstanding verdice approach better when consider how case
will be handled on appeal:
(a) If judgment as a matter of law (directed verdict) is reversed then the case will be
retriednot that efficient
(b) If renewed judgment as a matter of law is reversed then the jurys verdict is used
more efficient
(c) Judicial efficiency supports judgment as a matter of law (judgment notwithstanding the
verdict)
b) Motion for a New Trial [Rule 59]
(1) Rule 59(a) not more than 28 days after the entry of the judgment
(2) Standards:
(a) Judge cannot grant motion just because he feels verdict is wrongthis would subvert
the jury system, would take time that could be spent on other trials and threatens to
undermine right to jury trial
(b) Extremes of standards for new trials:
(i) One extreme: Directed verdict standard (not efficient, would rob the new trial
motion of any independent value)
(ii) Other extreme: Judge asking if jurys verdict was right(sort of be a 13th juror)
also not good because it would strip the jury trial of meaning.
(iii) Standard must be between those twomiscarriage of justice standard
(c) Miscarriage of Justice Standard:
(i) May be granted because the verdict is against the weight of the evidence To let it
stand would be injustice
(ii) If jury could have reasonably reached the result then judgment must stand
(iii) Hypo first trial is set aside due to the weight of the evidence indicating
verdict against weight of the evidence and same for the re-trial. Then the dispute
is final in interest of right to trial by jury.
(3) Second trial is only awarded in exceptional circumstances there is a limit to when a new trial
can be ordered
(4) Grounds for new trial: it is not limited to the weight of the evidence standard
(a) Verdict is against the weight of the evidence
(b) Judge himself committed errorex.: allowing in certain evidence that shouldnt have
been allowed or incorrectly instructing jury
(c) Jury didnt follow judges instructions
(d) Newly discovered evidence

C. Selecting A Proper Court: General Division of Business Between State and Federal
Court Systems

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1. GENERAL (IN WHICH COURTS MAY PARTICULAR LAWSUITS BE BROUGHT IN) SPECIFICALLY, SUBJECT
MATTER JURISDICTIONS

a) Federal Courts
(1) Power of federal government is limited (as established by the Constitution) so power of
federal courts are limited
(2) All other powers are reserved to the states by the 10th Amendment
(3) Only those powers which are enumerated in Article III of the United States Constitution are
what Federal Courts may hear
(4) Federal cases are only a fraction of the casesthe rest of the cases the states must hear
b) State Courts
(1) Even Article III cases can be heard by state as long as Congress has not prohibited it; much of
the power of the state and federal courts is CONCURRENT
(2) Power of states is residual
(3) Nowhere in US Const. prohibits judicial power of states and unless theres an affirmative
reason for state to not exercise a certain power, it has the power to hear a case
2. THE JUDICIAL POWER OF THE STATES
a) 10th Amendment The powers not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to the people
b) Types of jurisdiction:
(1) Concurrent state and federal court has ability to hear the case
(a) much of federal jurisdiction is concurrent
(b) P can decide whether to try in state or federal court
(c) Unless there is some stipulation elsewhere, assume that cases in Article III are
concurrent and be heard in either a state or federal court
(2) Exclusive only a state or federal court may hear a case (ex. bankruptcy and federal antitrust
law cases MUST be heard in federal court). It MUST be held in that particular state of federal
(more often) court
(3) Limited
(a) Court can only hear cases allocated to it by law
(b) Federal courts fall in this category, have the power to hear cases that are within the
judicial power of the United States or types of cases listed in Article III and which have
been statutorily authorized by Congress
(c) Article III sets out the boundaries of the federal Courts of the US
(4) General
(a) Court can hear any case unless denied to it by law
(b) States fall under this category, broadly empowered to hear almost any type of case
(5) Original court is the first one to hear the matter
(6) Appellate
(7) Diversity citizens of different states
Class Questions Re Art 3 pg. 210
3. what type of cases are heard under article three? What extent are the classified by nature of the claims and
characteristics of the parties?

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Nature of claims
o Federal Question Jurisdiction Arise under Constitution, laws, or treaties, maritime & admiralty
Characteristics of parties
o Citizens of different states, states themselves, when the US is a party, ambassadors
o 11th amendmend fed courts dont have jurisdiction between state and its own citizens or _______
4. How has congress vested original jurisdiction in district courts, and are they enumerated in Article III.
A. federal questions
B. diversity of citizenship language says between citizens of different states
B. commerce treaties, deals
C. patents arises under laws of the US, patent originated in congress, and in United States
D. civil rights arise out of laws of the Constitution,
E. Antitrust laws made by US and thus qualify
The portion of article III, and 1337 commerce, arising under the constitution. So Article III does not always
comprehend an entire class of federal cases. 1331 encompasses all federal cases, so it does there. 1332 no only when
there is $75,000 + at stake.

3. THE JUDICIAL POWER OF THE UNTIED STATES


a) General
(1) What must occur for a federal court to hear a case?
(a) Jurisdiction must be granted in Article III, AND
(b) Congress must have provided by statute the jurisdiction to hear that type of case.
Exclusive federal Jurisdiction (fed. Anti-trust cases, bankruptcy).
b) Article III
(1) Outer bound of judicial power of the United States is fixed by Article III
(2) Article III makes Federal Courts courts of limited jurisdiction rather than general jurisdiction
(3) Jurisdiction dependent upon the content or nature of the claim:
(a) Federal question cases arising under the Constitution, laws of the United States, and
treaties
(b) Cases of admiralty and maritime jurisdiction
(4) Jurisdiction dependent upon the types of parties
(a) Cases involving ambassadors, public ministers, and consuls
(b) Cases between two or more states
(c) Cases with the United States government as a party
(d) Cases with citizens of different statesdiversity jurisdiction
(5) Amendment to Article III
(a) Article III included cases between a state and a citizen of another state or between a
state and its own citizen
(b) 11th Amendment removed this jurisdiction from the federal government
(6) Cases and Controversies must involve justicibility issues:
(a) Dispute must not be hypothetical
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(b) Dispute must be live and must not lie in the future or already be resolved by events
(c) Must be tied to real parties with actual interest at stake in the litigation
(d) Must have a type of issue which can be resolved by the court; must be capable of
conclusive resolution by the courts (means that federal courts cannot give advisory
opinions; in some state courts they will give advisory opinions)
(7) Article III mandates the existence of the United States Supreme Court (shall be vested in one
Supreme Court)
(8) Congress has the power to create inferior courts below the Supreme Courtnot mandated, left
to the discretion of Congress
(9) Congress can change the Supreme Courts appellate jurisdiction (You have to look at what
Congress has done and then Article III. For federal jurisdiction to exists you have to show an
affirmative statutory and constitutional basis)
(a) Article III 2 Supreme Court has appellate jurisdiction on issues set out in Article III
unless Congress makes exception
(b) Could be unconstitutional because the Supreme Courts essential constitutional function
is to maintain uniformity and supremacy of federal law
(c) There have been such attempts (e.g., school prayer, abortion)
c) Why Would a Plaintiff Want Federal Jurisdiction?
(1) Federal courts are there to uphold the supremacy and uniformity of federal law; federal courts
are supposed to be the primary protectors of federal rights
(2) State judges are elected often go with popular state law
(3) Article III federal judges are appointed for life salary cannot be affected
(4) Federal judges are more competent and want to preserve federal rights; more familiar with
interpreting federal law
(5) State judges might be hostile to federal interests
Well-pleaded complaint rule: Louisville & Nashville Railroad v. Mottley pg 215; it wasnt enough that the P raised
some anticipated federal defense in order for it to be tried in federal court, unless the issue of federal law appears on
the face of a well pleaded complaint. The reference to the federal issues is not necessary to plead the cause of action
in order to state the claim for breach of contract. The court should pay attention only to the well-pleaded allegations,
or the ones necessary to state a claim
4. HOW CONGRESS HAS VESTED ORIGINAL JURISDICTION IN THE DISTRICT COURTS PG 210
a) Congressional Provisions to Classes of Cases or Controversies
(1) Controversies
(a) 1332 Diversity of Citizenship Under Article III controversies of citizen of one state
and a citizen of another state
(2) Cases cases arising under the Constitution and the laws of the United States
(a) 1331 Federal Question: Under Article II it is Cases arising under Constitution, the
Laws of the United States, and Treaties made
(b) 1337 Commerce: Under Article III it is Cases arising under laws of United States
(c) 1338 Patents and the like: Under Article III Cases arising under laws of United States
(d) 1343 Civil Rights
b) Statutes can give federal courts jurisdiction an entire class of cases others just partial
(1) 1337, 1338, 1343 only part of the class (cases)
(2) 1331 entire class (cases)
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(3) 1332 only portion of class (controversies)
c) Exclusive or Concurrent Jurisdiction
(1) 1331, 1332, 1343, 1337, anti-trust (implied) no expressed statement of exclusive
jurisdiction, presume concurrent jurisdiction unless Congress intends otherwise
(2) 1338 exclusive according to language of statute.
d) Sometimes jurisdiction is dependent upon amount of money
(1) 1337 -- $10,000
(2) 1343, 1338 no indication of amount of money required
(3) 1332 must exceed $75,000 (exclusive of interest and costs)
5. THE FEDERAL QUESTION PROVISION [ 1331]
a) 28 U.S.C. 1331
(1) The district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States
(2) Not exclusive jurisdiction
b) Why Have Federal Question Jurisdiction?
(1) Federal Courts are thought to be more competent in federal lawappointed by President,
approved by Congress, not elected
(2) Federal judges are thought to be more sensitive and sympathetic to federal law
(3) Federal courts preserve federal rights
(4) Federal Courts will try to maintain uniformity in federal law
c) For these reasons, plaintiffs try to get into federal court by trying to establish that their case falls under
federal law
d) Supreme Court Review of Federal Question Cases
(1) Supreme Court has power to review all federal question cases
(2) All state issues which turn on federal issues are subject to review by the United States Supreme
Court
e) Cannot claim Federal Issue when the only federal issue is in anticipation of defense (Louisville &
Nashville Railroad v. Mottley-p. 210)
(1) Plaintiff sued railroad to enforce contract, claims railroad cannot breach contract on the basis
that congress had legislated against free passes
(2) The only issues in this case seem to be federal but not according to the SC.
(3) Case did involve federal issues because P claiming that D stopped giving passes due to
congresss bill prohibiting them and also that congresss bill violates their fifth amendment
rightsbut these issues werent in Ps pleading
(4) United States Supreme Court says federal courts dont have federal question jurisdiction
because case didnt arise under federal laws :
(a) Ps claim did not arise under the federal law under the meaning of 1331 (i.e. under
laws of US) and lower court lacked subject matter jurisdiction
(b) Not a federal question under 1331 (Well Pleaded Complaint Rule)
(i) It is not enough that plaintiff alleges an anticipated defense to his cause of action
(ii) Issue of federal law must appear on the face of a well pleaded complaint
must be in Ps pleading

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(iii) Court should pay attention to the well pleaded allegations reference to
federal law must be necessary to state a claim!this was not the case in Mottley
(iv) Justification of the test
(a) Federal issue may never be raised by defendant as a defense
(b) Limits number of cases before the federal courts
(c) Provides a way to keep cases out of federal courts that ultimately DONT
raise a federal issue
(c) Court did not decide case on the meritsdismiss the case due to lack of jurisdiction by
the lower court
(5) Eventually, Mottley goes to state court, plaintiffs win; D appeals to federal court and win
second time around; Why does Supreme Court hear the case the second time around? The SC
again took away the Mottleys victory and rejected their statutory and meritorious arguments
(a) Arising under federal law is construed broader under Article III than in 1331
(b) Appellate jurisdiction of Supreme Court allows ANY issue involving federal law, so
they could hear second case
(c) The constitutional provision arising under federal law has been given a broader
interpretation than in 1331 even though the language looks the same in Article III. All
questions in which a federal question COULD be raised can be reviewed by the
Supreme Court (based on Article III) read broadly. Can review all state cases that turn
on an issue of federal law.
f) Supreme Court raised this issue of jurisdiction on their ownwithout either of the parties
(1) Objection to subject matter jurisdiction can never be waivedparties cannot by agreement
confer subject matter jurisdiction on court that does not have it because its necessary in order
to preserve our system of federalism (idea that you should not infringe on the authority of the
states)
(2) Cannot force jurisdiction on a court that does not have it
(3) Try to preserve federalism federal courts have limited jurisdiction
g) Class notes 11/19 should the SC have ruled the case did arise under federal law the first time to save
the trouble of a second trial?
(1) One criticism is it may result in removing from fed court cases that ultimately turn on
important federal issues
(2) Essentially the court is posturing and establishing the principle of federal jurisdiction being
limited
(3) How could the supreme court have federal jurisdiction under article III, how could the case
have arises under federal law under article III for SC to consider the case
(a) Language regarding federal jurisdictional law, arising under federal law in Art III has
been given broad language, interpreted to mean all cases in which a federal question
could be raised. Thats how SC was able to take the case that turned
(4) SC raised issue of jurisdiction on its own motion, and not those of the party
(a) Sub matter jurisdiction is never waived and the parties cannot confer sub matter
jurisdiction on a court
(b) Necessary to preserve federal structure, fed courts are courts of fed jurisdiction dont
want to infringe on states
(5) Why have federal question jurisdiction
(a) Fed judges more competent more familiar with fed law

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(b) Fed judges are more sympathetic to fed claims and interests, state judges may be hostile
to fed interest
(c) Fed courts are primary protectors of fed rights
(d) Fed question jurisdiction promotes uniformity
(e) Plaintiffs may try to make claims look like they raise federal questions
(6) In motley there wasnt fed question jurisdiction
(a) Well pleaded complaint rule Ps presented state law claim for breach, fed issue arose
only bc P anticipated D would raise a federal law as defense. It is not enough that you
anticipate a fed defense to the COA.
(b) Case doesnt arise under fed law, unless the issue appears on the face of a well pleaded
complaint but they did refer to federal law in their complaint. So why didnt that
work, because that reference wasnt necessary to plead the state law breach of contract
action so reference is superfluous, not necessary to plead fed issue. Court should pay
attention only to well pleaded allegations that are necessary to state a claim.
(i) Is there less of an issue in fed defense than a complaint? We could just interpret
art III broadly enough to capture federal defenses as well since they are just as
important.
(ii) Main reason is it will limit number of cases in fed court thats why well pleaded
complaint rule. Also saves fed judicial stuff
(c) Question (6) pg. 213 An action for dec judgment differs in that party seeking action
doesnt seek imposition of sanction just of rights and obligations, other non declaratory
actions are called coercive in that they seek sanction backed by government
(i) Mention of fed defense in complaint of dec jug action you can argue that it
seems to be well pleaded bc dec jud would allow a party to defer to the fed
(ii) Go to skelly oil
h) Modification to the Well Pleaded Complaint Test (Skelly Oil v. Phillips)
(1) Court said couldnt circumvent the well-pleaded complaint rule with declaratory judgment; the
act did not get around the Mottley rule
(2) Test federal jurisdiction by applying the well pleaded complaint rule to the coercive action that
would have otherwise resulted if a declaratory judgment was not brought
(3) Coercive action: one that is not a declaratory judgment, action that required sanctions; you test
the well-pleaded complaint rule by what the action would have been (the action was the actual
Mottley case that didnt satisfy the well-pleaded complaint rule)
(4) Would flood the courts otherwise
(5) What would coercive action be brought if you didnt bring dec jug action seeking to declare
rights to free railroad passes under that statute
(a) Actual case, use the coercive action to see if it meets well pleaded complaint rule which
original case didnt bc no fed question jurisdiction
(b) If there is dec judg action in a fed question case you have to apply coercive action test
to see
6. THE DIVERSITY OF CITIZENSHIP PROVISION
a) The diversity jurisdiction was the only kind of jurisdiction that the federal courts had for the first 85
years of existence
b) Questions in book pg. 213
c) 28 U.S.C. 1332

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(1) 1332(a) matter in controversy must be over $75,000 exclusive of interests and costs
(i) Citizens of different States (States are US) yes
(ii) Citizens of a State and citizens or subjects of a foreign state (state is another
country) yes 1332 a2
(iii) Citizens of different States and in which citizens or subjects of a foreign state
are additional parties no jurisdiction for action of two aliens, citizenship at time
action is commenced, no plaintiff can share the same state citizenship with any
defendant
(iv) A foreign state as plaintiff and citizens of a State or of different States
(2) 1332(b) if case is finally adjudged at less than $75,000 (not counting setoff or counterclaim
to defendant) then the plaintiff is subject to:
(a) Denial of costs
(b) Imposition of costs
(3) 1332(c)(1) a corporation is deemed to be a citizen of any State by which it has been
incorporated and of the State where it has its principle place of business
(4) There is no diversity when parties are BOTH citizens of foreign states
(5) Amount of controversy is usually established by looking at cost to plaintiff if relief is denied.
Take damages into account.
d) Determining Citizenship
(1) Citizenship at the time the action commenced is controlling
(2) Citizenship must be completely diverseno defendant can be citizen of same state as any
plaintiff
(3) Domicile Test (Baker v. Keck page 214)
(a) Plaintiff alleges conspiracy from transaction in Illinois after moving to Oklahoma
(i) Plaintiff had rented acreage and a house in Oklahoma
(ii) He had registered to vote and done community work in OK
(iii) Plaintiff said his intention was to stay in Oklahoma
(iv) Plaintiff had livestock in Illinois but chickens in Oklahoma
(v) House in Illinois had burned down
(vi) Plaintiff had told some people he intended to leave Oklahoma for Illinois after
the trial was over
(b) Defendant moves to dismiss saying plaintiff was not a citizen of Oklahoma but was an
Illinois resident
(c) Court decides key to diversity determination is domicile. State citizenship is determined
on a parties domicile
(i) Domicile Requirements: must have both
(a) Physical presence of residence
(b) Intent to remain in state indefinitely
(c) Must look at partys acts as more important than their words (intents)
(ii) Plaintiff in this case was found to be domiciled in Oklahomamet diversity/
domicile standards(a) had house, (b) inferred intent from registering to vote
and did community work, and P had stated that he intended to stay (the courts
may considers a parties declaration to stay but are less important than the acts
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of the P), (c) acts showed P domiciled. He was physically present and residing in
OK. The court inferred his intent to remain in OK indefinitely from the
surrounding circumstances.
(4) Domicile of United States citizen domiciled in England pg. 217
(a) No federal diversity jurisdiction when the party is a United States citizen but domiciled
out of the States (no state citizenship then) domicile in a state is essential to state
citizenship
(b) Domicile is essential for state citizenshipno domicile in any state
(5) Domicile of stateless and undocumented aliens
(a) United States citizenship or status as permanent resident is vital to citizenship. US
citizenship is essential to state citizenship
(b) 1332(a)(2) doesnt give jurisdiction to stateless persons
(6) Foreign citizens who are undocumented aliens (have state but undocumented alien)
(a) 1332(a)(2) gives jurisdiction over foreign citizensdoesnt matter if they are
domiciled in the states. Only the single requirement of citizenship under foreign
diversity jurisdiction
(7) Domicile of person with dual citizenship: US and another country
(a) Leading approach is to allow diversity jurisdiction UNLESS opponent is from same
American state as dual citizen
(8) Domicile of students
(a) Un-emancipated normally same domicile as parent he is dependent upon
(b) Emancipated may acquire domicile of choice
(c) Every person has exactly one and only one domicile
(9) Domicile of Wives
(a) Wife may acquire separate domicile of choice than her husband
(10) Domicile of Corporations
(a) 1332(c)(1)
(i) Citizen of the state it was incorporated incan be multiple states AND
(ii) Citizen of the state where it has its principal place of businessonly one state
(b) Foreign corporations: trend is to consider it citizen of country of incorporation AND of
State/country in which it has principal place of employment
(c) Determining principle place of business (Hertz Corp v. Friend . page 218)
(i) P wanted application of Nerve Center Test
(a) Court would have found that New York was the state of citizenship
because final decisions made in NY
(b) Normally this is where the corporate headquarters is
(c) Courts use this test only when the activities are evenly divided among a
number of states
(d) Identifies the principle place of business as the location where key
policies are made and usually the state where corporate headquarters are
located
(ii) Total Activities Test the competition of the nerve center test

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(a) Site of principle corporate activities and production
(b) The general approach - Most courts use this test (as did the Kelly court,
PA was the principle place of business)
(c) Under this test, in Kelly it was PAno diversity jurisdiction
(d) Looks at where the bulk of the corporate activity takes place
(d) Makes sense to use Total Activities Test:
(i) Purpose of diversity jurisdiction is to shield outsiders from local prejudice;
protect those who might live outside of the state (no bias)
(ii) Total Activities Test picks the state where the corporation is least likely to be an
outsider; therefore, it is consistent with the purpose of diversity jurisdiction
(e) Unincorporated associations
(i) Associations, unions, partnerships
(ii) Citizen of each and every state and country of which one of its members is a
citizen
e) Desirability of diversity jurisdiction
(1) Purpose is to shield outsiders from a local prejudice
(2) Changes over time
(3) Federal judges are more insulated against local prejudice; theyre appointed, not elected
(4) Many criticize diversity jurisdiction more burden on federal courts, makes federal courts deal
with state law, also jury in federal court is still a local jury
7. REMOVAL JURISDICTION OF THE DISTRICT COURTS
a) General
(1) Since most cases are concurrent between state and federal court, plaintiff can choose forum
(2) Sometimes Congress allows the defendant the power to modify the plaintiffs choice of federal
forum
(3) Federal court must have original jurisdiction over the case for the defendant to remove case to
federal court
(4) If the defendant selects the federal forum and the subject matter jurisdiction is met then the
plaintiff cannot remove to the state court; if the P has chosen to sue in state court and the
requirements of removal jurisdiction are met, the D may remove the case to federal court
b) 28 U.S.C. 1441
(1) 1441(a)
(a) Diversity of citizenship makes case removable
(b) Actions under FELA may not be removed (1445(a))
(2) 1441(b)
(a) All federal issues are removableregardless of citizenship
(b) If not federal issue and defendant is being sued in his own state courtnot removable
(presumably there is no need to remove because D wont suffer from local prejudice)
(3) Removal must be made within 30 days
(4) The SC of the US can review a state case where the decision turns on an issue of federal law
28 USC 1257, they have discretion to hear the case (you have no right to be heard in the SC)
c) Mechanics covered under Sec. 1446-1450
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8. CHOICE OF FORUM
a) Considerations that go into choice
(1) Expected bias against litigant
(2) Logistical and practical concerns
(3) Perceived disparity in quality and other characteristics between federal and state judges/juries
(4) Different procedures offered by one or the other court system
b) Statistically, win rate goes down when remove case to federal court versus originating case in federal
court
9. POSSIBLE REVIEW BY THE SUPREME COURT OF STATE COURT ACTIONS
a) General
(1) United States Supreme Court can review any case from the state courts where the issue turned
upon an issue concerning federal law EVEN IF it was not removed
(2) United States Supreme Court cannot review state law cases
b) Supreme Court Review of State Court Decisions [28 U.S.C. 1257]
(1) Desirability
(a) Want to make sure that federal law is being applied uniformly by the states
(b) Want to supervise the state courts to ensure they are interpreting federal law correctly
(2) Procedure: Confined to the state court decisions of final judgments or decrees rendered by the
highest court of the state in which the decision could be made
(a) Problem may resolve itself in the state courts if it can run its coursewould be
inefficient otherwise
(b) Reduces possibility of friction between federal and state courts not to interfere with the
state processesprotects notion of federalism
(3) Re-Consider Louisville & Nashville Railroad v. Mottley
(a) Action was commenced in federal district court
(b) United States Supreme Court said district court did not have jurisdiction since the
jurisdiction was not founded on the well-pleaded complaint
(c) Action goes to state court
(d) State Supreme Court affirms verdict for plaintiff
(e) Defendant appeals to the United States Supreme Court on the same federal issue the
plaintiff tried to get the action in federal court on the first time
(f) United States Supreme Court reverses saying the federal statute was applicable and
constitutional
(g) Here, the S. Cts power to review broader than federal courts federal question
jurisdiction
D. WHAT LAW GOVERNS A PARTICULAR ACTION?
1. STATE LAW (pp. 337-388)
a) Generally
(1) 28 U.S.C. 2072 (Rules Enabling Act)
(a) Federal Rules are principal body of law governing matters of practice and procedure
(b) BUT Rules may not abridge, enlarge, or modify any substantive right

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(2) When a matter is clearly substance, both federal AND state substantive law can apply in
federal courts depending on the matter
(3) P has a choice between bringing action in federal or state court where there is diversity
jurisdiction
(4) 28 U.S.C. 1652: laws of several states shall be regarded as rules of decision in civil
actions in US courts EXCEPT where federal law provides otherwise; included on state statutes,
and common law was not covered by the term laws in the Act.
(5) Old Rule: P can gain advantage in examining federal and state precedents and selecting forum
where decisive precedents are more favorable (Swift v. Tyson--1842)
(a) Swift indorsee from Maine, Tyson acceptor from New York of bill of exchange, in
middle are shady Norton and Keith
(b) Tyson asserted land sale induced by fraudulent representation on part of Norton and
Keith, refuses to pay Swift, doesnt accept discharge of pre-existing debt as
consideration
(c) Swift sues in federal courtfederal jurisdiction because of diversity of citizenship
(d) Issue: whether what indorsee had given in exchange for consideration for the
indorsement was an invalid consideration in the eyes of the law
(e) New York common law: discharge was NOT valid consideration
(f) General commercial law: discharge IS valid consideration
(g) Rule: laws of several states in 1652 includes only state statutes and local usages
having the force of laws NOT states general common law and in absence of
congressional directive, federal courts had power to come to an independent conclusion
as to the true general common law
(i) Court will deduce the law from general principles of commercial law
(ii) Federal court judges will perform same function as state court judges, rely on
special skills of legal reasoning to find general lawfed judges reasoning
was just as good at state court judges
(iii) Rules are objectively reasonable law that is natural, out there waiting to be
found
(h) Rule applied: federal court can use general commercial lawdischarge IS valid
consideration
(i) Swift court divided law into different categories
(i) Positive law (statutes, constitutional provisions) that are deliberate decisions to
shape law one way or another
(ii) General common law (underlying principles of torts, contracts, property, etc.)
that are produced by legal reasoning not just by choice* This is different from
positive law, they assume that there can only be one correct answer, so you
discover the answer by logic and analysis (legal reasoning)
(j) State common law not the law themselves, just evidence of what the true law really
was; federal judges had a right and duty to consider the common law decisions because
those state court judges were just as apt to review cases as the federal court judges
(k) For almost 100 years, federal courts followed the holding of Swift and developed their
views on general common law
(6) New Rule: federal courts have to apply state law in diversity jurisdiction cases (Erie Railroad
v. Tompkins)
(a) Synopsis:

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(i) P walking on right of way parallel to passing freight train and struck by
something projecting from moving cars
(ii) P (PA) brought federal suit against D (NY)
(iii) D wants PA law to controlUsing longitudinal pathways as opposed to
crossings is trespassing, and railroad not liable to undiscovered trespassers for
their negligence unless it be wanton and willfulthey say this is covered under
local usage allowed in Swift
(iv) P wants general lawrailroad has duty to pedestrian using permissive right of
way (doesnt have to be crossing, just open and notorious right of way); this is
what the federal district court applied (trespassers could recover for
ordinary negligence)
(v) P says that PA rule is NOT in a statute, so by precedent of Swift, since this is a
general law question, federal court can decide duty and liability of railroad
(b) Courts Criticism of Swift
(i) Court brings up issue on their ownit is not brought up by P or D, but Court
could have asked counsel for specific briefing on issue of interpretation in Swift
v. Tyson
(ii) (Mason v. United States) statutes are just declaring rules of common law, so if
only allow use of statutes, federal courts making decisions that even US
Congress couldnt enact statutes on
(iii) There was research after Swift that uncovered that 1652 was intended to
include state common law
(iv) There was no uniformity of law that developed after Swift
(v) Hard to draw line between general law and local law
(vi) Forum shopping problem
(a) Diversity litigants could choose federal common law over state common
law but non-diverse litigants werent given that choice
(b) Non-diverse Ds could take advantage if they were willing to move or re-
incorporate and then have their case heard in federal court under more
favorable federal laws instead of less favorable state law (Black and
White Taxi v. Brown and Yellow Taxi)
(vii) Discriminated against citizen by noncitizengoes against principle of diversity
jurisdiction
(viii) Law is not natural development, rather jurisprudential developmentcourts
make the law, choose the law
(ix) Eerie represents an attack on the view that there are objectively viewed
principles for the court to apply
(x) Who raises the issue of the validity of Swift? The Supreme Court raised the
issue on its own (similar to Mottley)
(xi) Should they have asked the parties to brief the issue rather than asserting the
issue on its own? This was the issue of Justice Butlers dissent
(xii) Three reasons why Swift was overruled: according to Justice Brandeis
(1) The interpretation given the Rules and Decisions Act was wrong (the laws
of several states included judicial decisions so that the federal district
courts in diversity cases were REQUIRED to follow state common law)
Said there was new scholarship that showed an earlier version of the Act

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that expressly included state common law as being obligatory in the federal
courts
(2) Experience had proven that the Swift doctrine did NOT have the desired
benefits (it was supposed to encourage uniformity of law hoping that all
courts would eventually agree on the content of common law supposed to
unify and rationalize the law. The fed courts were supposed to be the
vehicle for unification and that state courts would follow the lead of the fed
courts) But the state courts declined to follow the lead of the federal courts
because they thought they had as good or better insight into the true law so
they disregarded fed rules on the nature of general common law.
(3) Also noted that the Swift regime created certain problems: the Swift regime
was unfair (equal protection and fairness to litigants; unfairness came
about because some litigants were given the choice between general
(federal) common law and state common law while others were NOT given
the choice because there was no diversity of citizenship which would have
allowed them to get into the federal courts) Used the Black and White Taxi
case for this example of how the Swift doctrine created litigant unfairness
(4) The instate resident is injured by the ability of out of state residents to
forum shop
(5) The Swift regime had to be overruled because the doctrine of Swift was
unconstitutional - there is no general federal common law and congress
has no power to declare rules of substantive common law and no clause in
the constitution purports to confer such power to federal courts. Some have
questioned that constitutional conclusion
(c) Rule: Except in matters governed by the Federal Constitution OR by acts of Congress,
the law to be applied in any case is the law of the state, and whether that law be
declared by its Legislature in a statute OR by its highest court is NOT a matter of
federal concern
(i) There is NO general federal common law
(ii) Swifts interpretation of 1652 is unconstitutionalconstitution does not confer
on federal courts the power to develop general federal common law
(d) Rule applied: PA law on duty/liability of D was in decision of highest court, so it will
be controllingD had no duty so there is no negligence
(e) After Erie it is difficult to argue that judicial review is value-neutral decision-making
(7) Criticism of Erie
(a) Can infer that intent discovered in new research was not put in 1652 on purpose
(b) Also, Congress hasnt changed 1652 for 100 years after Swift maybe because they
were okay with Swift interpretation of the law
(c) Can argue that federal courts DO have power to determine rules of law that apply to
citizens of different states (Article III, Section 2 been held to give the federal courts
power to develop substantive federal common law in admiralty cases we read Eerie
then to reject this argument)
(d) Article I empowers Congress to make all laws necessary and properCongress has
power to adopt common law that federal courts have to apply
(8) How does Erie decision affect use of federal procedure in diversity cases? If the procedure
affects substance of case, then have to apply state law (see following)
(9) Erie Pendulum: clash between need for certainty and decision-making on individual interests
(desire to do justice on an individual case); decision making on mechanical rules versus
decision making on competing interests. Courts swing back and forth between views. Progeny
of Erie.
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(10) If the matter was the one of substance, state law was to apply. If the matter was procedural,
federal law was to apply. This simplistic approach came to be accepted by the lower federal
courts in the 30s and 40s : SUBSTANCE PROCEDURE DICHOTOMY test to chose
between state and federal law; if matter was one of substance state law applies if it was
procedural fed law governs.
b) Burden of Proof in Diversity Actions
(1) In diversity cases, the federal courts MUST follow law of State as to burden of proof (Cities
Service Oil Co. v. Dunlap1939, p. 347)
(a) Synopsis
(i) P sued in diversity jurisdiction to remove cloud on title to TX land covered by
deed (quiet title)
(ii) D counterclaims that land included in deed by mistake
(iii) P replies that purchased land in good faith and for value without notice of
mistake
(iv) No evidence from either side on Ps reply
(v) T. Ct. and Ap. Ct. found for D, went with federal rule of procedure that BOP on
P to prove he was bona fide purchaser despite opposite TX rule because matter
of procedure NOT substantive law
(vi) State law regarding the burden of proof must be applied in diversity cases; the
burden of proof is a SUBSTANTIAL right. They rejected the Court of appeals
that the BOP was a procedural law and not a substantive law
(b) S. Ct. Rule: When rule of procedure relates to substantial right (burden of proof) under
state law, federal court has to use state procedure for burden of proof in diversity cases
(c) Rule applied: here BOP was right of Texas land holder, so have to use TX procedure
and D has BOP
(2) BOP of contributory negligence in diversity cases (Palmer v Hoffman1943, p. 347)
(a) The D pleaded contributory negligence as a bar to recovery. At trial, the court instructed
the jury that the D had to burden of proof, despite the Ds objection that the state rule
applied and stated that the P had the burden of proof. SC held that the instruction was
WRONG because Rule 8c only governed the matter of pleading.
(b) The burden of proving contributory negligence is of local law and federal courts in
diversity cases MUST apply it
(c) Rule: The question of establishing contributory negligence is a question of local law
which federal courts in diversity of citizenship cases must apply (under federal
procedure D had BOP to prove contributory negligence (Rule 8(c)) and under local law
it was P who had to prove freedom FROM contributory negligence)
c) Choice of law
(1) Generally, as between coequal sovereigns (states or countries) it is the forum courts task to
choose governing lawtwo techniques
(a) Crude and rigid rules to determine law of particular place where event occurred
(b) Interest-analysis: compare each issue and the interests of the involved sovereigns in
having their law applied (ex. CA governmental interest)
(2) Each State has broad power to make their own conflict of laws rules
(3) Klaxon Co. v. Stentor Electric (p.353) better view in conflict of law the rules for ascertaining
damages are matters of SUBSTANCE and not PROCEDURE. And as such, in the instant case,
it called for application of NY law. The SC reversed holding that the fed courts in diversity
cases were required by Eerie to apply the conflict of law rules in the state in which they sit.
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(4) Supreme Court allows state courts to choose governing law and/or apply their own (Allstate
Insurance Co. v. Hague)
(a) Under either Due Process Clause or Full Faith and Credit Clause, look at contacts of
State whose law was applied with parties and with occurrence or transaction giving rise
to litigation
(b) If there is NO significant contact creating state interests, then choice of law of a State is
invalidated (ex. PA)
(5) This is interstate/international horizontal choice of lawErie concerned with vertical
choice of law
(6) Choice of law governed by conflict of laws rules of State in which forum court sits (Klaxon
Co. v. Stentor Manuf. Co.1941, p. 336)
(a) Synopsis: P brings breach of contract cause of action in federal court in Delaware
because there is diversity of citizenship; court applied NY law and added pre-judgment
interest to sum because contract was performed in NY; Supreme Court disagreed
(b) Rule: the prohibition in Erie that federal courts in diversity cases cannot make
independent determinations of which law to apply extends to field of conflict of laws;
each State can determine whether a given matter should be governed by the law of the
State or some other law and federal courts sitting in that State must follow that States
conflict of laws rules
(c) Rule applied: Delaware federal court has to apply Delaware conflict of law rulescase
is remanded!on remand, it was determined that DE WOULD use NY, so prejudgment
stands
(7) Klaxon eliminates forum shopping in area of choice of laws
(8) When right to recover is derived from State law, federal courts in diversity case MUST apply
State law in deciding case (Guaranty Trust Co. v. York1945, p. 354)
(a) Synopsis: P, noteholder, brings suit for breach of trust against D, trustee; there is
diversity of citizenship so try in federal court; D is granted summary judgment based on
NY statute of limitations; Ap. Ct. reverses because there is a federal tolling statute
(interrupts running of SOL in this type of case) IS SOL substantive or Procedural?
(b) Outcome Determination Test
(i) In diversity cases, if federal court is adjudicating a State-created right it is in
effect just another court of the State and therefore CANNOT substantially affect
enforcement of the right given by the State or recovery based on that right
(ii) Would outcome be different if State law was applied in State courtif it would,
then cant use federal law, substantive OR procedural
(iii) Same transaction should not be given one result in federal court and
substantially different one in state court
(iv) Diversity jurisdiction gives litigants an alternative forum but NOT alternative
law
(v) Purpose: avoids forum shopping, prevents discrimination against some litigants
(c) Rule applied: the federal tolling statute would completely bar recovery, so it cannot be
applied, fed court should apply SOL of the state
(9) Erie dealt with clear substantive issue about duty in tort law. State law would apply to
substantive issues and federal law would apply to procedural issues. In this case, the issue of
SOL was not as easy to define
(10) In York the issue is SOLsubstantive or procedural? This is what we apply the Eerie
analysis to, whether the NY state law of negligence applied, or the so called general common
law on negligence applied. This is clearly substantive law
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(11) Purpose of SOL avoid stale litigation, gets Ds off the hook at some point, give repose to
allow the potential D certainty about whether or not they can be sued (peace of mind), judicial
economy limits cases that are on the courts dockets. Do these purposes suggest whether the
SOL is procedural or substantive? Could argue that its procedural because it places a time
limit on the time to bring a lawsuit, tries to make the judicial process more accurate (memories
are still fresh). HOWEVER, the social policy arguments for SOL sounds more substantive than
procedural
(12) The SC held in this case that the State SOL applies and reforms the Eerie test
(13) York case doesnt mention constitutional basis of Erie, just policy reasons for Erie!Erie is
more forum shopping, anti-discrimination case that maintains federal
(14) Problems with the NEW test: federal rules of civil procedure may be different from the state
rules of civil procedure, almost ever procedural rule could be outcome determinative (pleading
could affect the outcome); its difficult to predict the effect on outcome (even though easy in
the actual York case); one of the concerns then after York was that it placed the federal rules in
question.
(15) Application of York
(a) Almost ANY federal rule of procedure could be outcome-determinative because it
affects the outcome (Ex.: notice pleading vs. code/fact pleading; narrow vs. wide
discovery)
(b) Eerie test redefined - NEW TEST: does it significantly affect the result or outcome of a
case for a federal court to disregard the law of the state to be controlling in an action in
the same claim by the same parties in state courts OUTCOME DETERMINATION
TEST
(c) PURPOSE of the TEST: To ensure that in all cases where a federal court is
exercising jurisdiction solely because of diversity of citizenship of parties, the
outcome of the litigation in the fed court should be substantially the same so far as
legal rules determine outcome of litigation, as it would be if tried in a state court
(d) The same transaction should not be given one result in fed court and a
substantially different one in state court. Diversity actions are designed to afford
out of state litigants another tribunal (forum) not another body of law
(e) REASON FOR THE TEST: if the result in the fed court is the same as the result in
state court, this reduces forum shopping and discrimination/unfairness. York goes
farther than Eerie because it goes to arguably procedural matters that are
outcome determinative (versus just substantive claims). Outcome must be same if it
was applied in fed. Court. Same transaction should not substantially affect body of law
applied and therefore result.
(f) CONSTITUTIONAL BASIS: not mentioned in York. Just discusses Eerie polices. The
proper distribution of power between state and fed courts.
(g) Eerie diluted to forum shopping and nondiscrimination case
(h) ISSUES WITH OUTCOME DETERMINITIVE TEST almost any procedural rule is
outcome determinative. Pleadings can affect outcome, discovery under fed rules,
difficult to predict the effect on outcome at the outset of trial
(i) Reformulation of Eerie test based on York the same transaction shouldnt be given
one decision in federal court and a different outcome in state court (outcome
determinative test)\
CASES BELOW APPLY OUTCOME DETERMINITVE REASONING
(j) Ragan v. Merchants Transfer & Warehouse Co.
(i) Synopsis: Diversity case in federal court in KS, personal injury case where state
statute SOL is two years; KS law: SOL starts running at date of service of

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summons; Fed. Rule (3): SOL starts running at filing of suit; Under KS law, P
missed the date for SOL; Under Fed. Law P did not
(ii) Rule applied: D should get summary judgment and have case kicked out
because state law applies
(iii) Apply state rule over federal rule
(k) Woods v. Interstate Realty Co.
(i) Synopsis: P Tenn. Corp., D Miss. Corp.; Action for brokers commission; Miss.
Statute: without filing for written power of attorney, contracts of foreign
corporation are not void but they are unenforceable in Miss. Courts; P has not
filed for written pwr of atty
(ii) Rule applied: In this case, federal court is just another state court and so federal
court cannot enforce Ps contract
(iii) Using procedural rule to promote state policy to force companies to consent to
personal jurisdiction and service process
(l) Cohen v. Beneficial Industrial Loan Corp.
(i) Synopsis: P small stockholder, D corporation and managers; P sues D in federal
court shareholders derivative action; NJ statute allows D to require P to give
security for reasonable expenses, including attorneys fees (in case it lost); D
says state statute applies and case should be dismissed if P doesnt pay security
of $125,000
(ii) Rule applied: security rule creates liability where there was not one before so it
is NOT an issue of procedurefor D
(iii) state law will be outcome determinative so it should not be dismissed.
(iv) How can a bond requirement affect the outcome bar the suit in the first place,
it would be so much it would be impossible for plaintiff to sue. The use of
procedure has substantive purpose.
d) Federal Determination of State Law
(1) General Rule (Vandenbark v. Owens-Illinois Glass Co.): any federal court should use the latest
available data in deciding what state law is
(a) (Note) Federal court has to try and predict how states highest court would decide a
case if there is no on-point recent highest court case
(b) (Note) Federal court not obligated to follow state lower courts if it does not believe it
would be followed by states highest court.
(c) It could undermine Erie policies because an ancient state decision would promote
forum shopping for party that wanted law to apply
(2) Considerations that go into determining state law (Bernhardt v. Polygraphic Co. of America)
(a) If old casethat there is no later authority from States highest court
(b) That there is no fracture in the rules announces in earlier cases has appeared in
subsequent rulings or dicta that casts shadow of doubt over established rules
(c) That no legislative movement is under way to change the result in the cases
(d) If you do find those factors then you have an argument to not apply old state court
decision
(3) 5th Circuit Court Considerations: What this court considers when there is no state law or
common-law that speaks to an issue. Required to attempt to rule how the highest court in the
state would rule IF there is no state SC case on point.
(a) Lower state court decisions
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(b) State supreme court dicta
(c) Lower court ruling in case
(d) General rule on issue
(e) Rule in other states (CA) that are often looked to by states courts;
(f) Other available legal references like treatises or law review commentary
e) State determination of state law:
(1) Ways that federal courts can shift burden of determining state law in diversity cases
(a) Abstention:
(i) In deference to state interests, federal court can decline to exercise federal
jurisdiction
(ii) Example: when federal court presented with difficult question of state law
bearing on policy problems of substantial public import whose importance
transcends results of case at bar
(iii) Pullman Abstention Doctrine: appropriate when there is issue of state law that is
contentious!federal court maintains jurisdictions, gives state law question to
state court and then if there are any federal issues remaining it comes back to
federal court
(b) Certification
(i) Federal court retains jurisdiction but certifies unsettled question directly to
highest court of state
(ii) Several states have adopted statutes authorizing highest court to answer certified
questions
(iii) Supreme Court also approves certification, as evidenced in many cases
(iv) Problems with Certification:
(a) Inevitable delay/increased expense to parties as federal court decides
which questions should be certified and state court answers
(b) Imposes a burden on the States highest courtabstract question hard to
answer
(c) Diminishes the authority and sense of responsibility of the federal court
(2) Byrd v. Blue Ridge Rural Electric Cooperative1958, p. 364 END OF Pure OUTCOME
DETERMINITIVE TEST (should judge or jury decide question of fact)
(a) Synopsis: P employee of Ds contractor; P brings negligence suit against D with
diversity citizenship; D makes affirmative defense that Ps work the kind also done by
Ds employees, so D has statutory immunity from suit and Ps only remedy is workers
compensation; P cant sue in tort because workers comp is exclusive remedy available.
(b) Fact dispute is whether P is contractor or employee. Within meaning of workers
compensation act.
(i) South Carolina Rule: judge is fact-finder for affirmative defenses (reason not
given by South Carolina high court, just custom)
(ii) Federal Rule: 7th amendment mandates that jury is fact-finder for affirmative
defenses
(c) Rule: The policy of uniform enforcement of state-created rights and obligations
CANNOT in every case exact compliance with a state rule (not bound up with rights
and obligations) which disrupts the federal system of allocating functions between
judge and jury
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(d) Rule Reasoning: Because of 7th Amendment right to trial by jury there is strong federal
policy against allowing state rules to disrupt judge-jury relationship in federal court
(e) Rule applied:
(i) Under outcome-determination test ONLY: they would go with SC rule
(ii) Since South Carolina high court didnt give a reason for their rule it is not
bound up in rights and obligations of the parties (fact that judge decides
question)
(a) Possible reasons for state policy: South Car wanted impartial judges to
decide on this defense, may want more uniform interpretation of defense,
wanted to get this issue out of the way by judge, juries may be
sympathetic so you dont want them answering questions, since issue is
jurisdictional it may be easier to decide before trial
(iii) SO, weak state policy cant disrupt strong federal policy: Jury will be fact-finder
in affirmative defense in this case
(iv) Under York judge may determine issue differently, and therefore Fed court
should decide using state practice.
(v) Probably will NOT yield different outcome though because federal judge has
more power than state judgescan weigh the evidence and credibility of
witnesses and grant new trial if verdict appears to him to be against weight of
evidence
(f) Balancing Of Interests Test
(i) Look at interest of state rule (strong or weak, integral part of statutory scheme)
(ii) Look at federal rule/policy (strong or weak)
(iii) Look at outcome determinative effect (certain or uncertain)
(3) In York the issue was 100% outcome-determinative, whereas in Byrd it was more uncertain
chance of forum shopping would go down since parties cant really say what outcome would
be in a given forum
(4) Criticisms of Byrd Balancing Test
(a) Hard to apply (not objective standard)
(b) Inconsistent results by federal courts
(c) Hard to evaluate strength of state policy
(d) Hard to determine legis. history of statute, weigh state interests
(e) Federal court not always impartial in weighing state interest
(5) Hanna v. Plumer1965, p. 350 SCOTUS Decision (what law governs when state law
conflicts with fed rule of civ procedure. Is it valid under rules enabling act and const.?)
(a) Synopsis: P citizen of Ohio brings suit against X citizen of Mass. in Mass. federal
court; X is dead, so executor was named as D; Issue is over manner of service; P in
compliance with federal rule, but not state rule on service of summons
(i) Federal Rule: Rule 4(e)(2) allows summons to be given at Xs residence in
hands of person of suitable age and discretion
(ii) Mass Rule: executor needs to be serviced summons by personal delivery within
a year of when he became executor or he is not liable
(b) Rule 1: Whether a federal procedure is outcome determinative must be viewed in light
of the policies underlying Erie, which are to prevent forum shopping and inequitable
administration of the laws

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(c) Modify Outcome Determinative Test: move it to time when decision between state and
federal court is madeapplied here method of service would not factor into that
decision
(d) Rule 1 applied: doubtful that that a P would choose a forum based on method of
service, since this is trivial; also difference between methods of service wouldnt
administer law inequitably
(e) Rule 2: Article III of Constitution AND Rules Enabling Act provide authority for
adoption of Federal Rules, allowing federal court to make rules governing practice and
pleadings, which in turn includes power to regulate matters which are rationally capable
of classification as either substance or procedure!Erie does not affect right of federal
courts to make housekeeping rules
(f) Test of Validity for Fed Rule under REA:
(i) Whether a rule really regulates procedurethe judicial process for enforcing
rights and duties recognized by substantive law and for justly administering
remedy and redress for disregard or infraction of them
(ii) Is the rule within Congresss constitutional power Necessary and Proper
Clausethere is power (given by Congress to federal courts in REA) to make
federal rules to operate federal courts since there is power to create federal
courts
(iii) If it is, then federal rule applies, not state law rule
(iv) RULE 35; valid because it has substantive and procedural validity and within
congress constitutional power
(g) Rule 2 applied: no way D can get around federal rule since it can be classified as
procedure
(h) Where state law conflicts with federal rule of civil procedure provided it was valid
under REA (rules shall not abridge, enlarge or modify any substantive rights) and
const.
(i) Byrd doesnt apply because federal statute not policy is at issue hereRule 4 valid
under REA!Federal law supreme
(j) Test for Choosing between state law and Federal Rules:
(i) Does Federal Rule Apply? Move to step two
(ii) If there is a conflict between state and federal ruleis federal rule valid under
REA? If yes move to step three
(iii) If valid under Const. and REA, then it applies because federal law is supreme
(may ignore conflicting state rules)
(6) Initially lower courts apply Hanna rule to Federal Rules
(7) But then they start becoming more flexiblefirst outside of federal rules and then in federal
rules
(8) In this case P tried arguing issue was outcome determinative. SCOTUS said outcome
determinate test is not absolute, but have to look at twin policies of Erie. Application of
Outcome determinate test to procedural rule, no effect on outcome in choosing the forum, and
look above its there. Must assess outcome determination at commencement of suit, Erie has
never been used to void a federal rule before.
(9) Summary Erie objectives are not frustrated by use of fed rule, and Federal law is supreme.
(10) Simple test
(11) Szantay v. Beech Aircraft Corp.1965, p. 360

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(a) Synopsis: P bought plane from D (Del. Co. w/ place of business in KS), flew to FL,
then SC where D2 (SC Co.) serviced the plane; Later plane crashed in TN and P and
others died; sued D for negligent design and manufacture; sued D2 for negligent
servicing; diversity case in federal court; since D does business in SC, wanted SC
door-closing statute which barred nonresident plaintiff from bringing suit against
foreign corporation on foreign cause of action to apply
(b) Rule: (good synopsis of law until now) federal court in diversity case must make
following analysis wrt to state law
(i) If state provision, either legislative or judicial, is the substantive right or
obligation at issue, it is constitutionally controlling (Erie)
(ii) If state provision is procedure intimately bound up with the state right or
obligation, it is likewise constitutionally controlling (Guaranty Trust)
(iii) If state procedural provision NOT intimately bound up with right being enforced
BUT its application would substantially affect the outcome of the litigation,
federal diversity court must still apply it UNLESS there are affirmative
countervailing federal considerations!not a constitutional requirement, but one
dictated by comity (judicial courtesy) (Byrd, Hanna); in this case, apply
balancing test from Byrd
(a) Outcome-determinative effect
(b) Reasons for adopting state law
(c) Reasons for adopting federal policy
(c) Rule applied: no state interest at stake, just desire to keep such lawsuit off state-court
docket, but there were significant federal interests which would have been defeated by
application of state law so court refused to apply door-closing statute; used balancing
from Byrd case
(12) Day & Zimmerman Inc. v. Challoner1975, p. 361
(a) Synopsis: P in combat in Cambodia when D manufactured gun round exploded
prematurely; P (WI) sues D (TX Co., principle place of business PA) in Texas federal
district court; T. Ct. says TX strict liability rules apply, and jury finds for P; D appeals
saying Klaxon controls, which says TX conflict-of-laws rules should apply, and in TX
there is law-of-the-place-of-injury rule; D says Cambodian law that required proof of
fault should apply; Ap. Ct. said NO, federal interests outweigh state ones so federal law
should apply; goes to S.Ct.
(b) Rule: same as Klaxon, have to use state laws conflict-of-laws rules
(i) Judgment based on strict liability should be reversed
(c) Rule applied: Ap. Ct. was wrong, case is remanded to apply TX conflict-of laws rules
(d) Facts here call out relief from Klaxon rule
(e) Interpretation: stare decisis is important, Byrd balancing should not apply to overturn
settled law
(13) Criticism of Klaxon and Day & Zimmerman
(i) Different states have different conflicts-of-laws!causes interstate forum
shopping
(ii) Prevented federal court rational and equitable choice of law rules despite their
unique position to do so
(14) Support of Klaxon
(a) State conflict of laws rules preserves state law principlesmitigates intra-state forum
shopping

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(15) Middle: when arguments against Klaxon rule were strong, then use federal law or when weak
apply federal law (i.e. if there is strong federal interest or weak state interest, then should make
exception to Klaxon)
(16) Re-affirm Klaxon rule, even though there were sympathetic plaintiffs, refuse to create
exception to Klaxon
(17) Does it mean Byrd approach is not operative, no it means its not to be applied to overturn
settled precedent
(18) Walker v. Armco Steel Corp.1978, p. 363 RELIES ON RAGAN
(a) Synopsis: (negligence case involving shattering of nail that causes permanent injury to
Ps eye) same as Ragan, diversity case where OK law says SOL starts running with
serving of summons but Fed. R. Civ. Pro. Rule 3 says civil action is commenced with
the filing of a complaint; by state service statute, D has legitimate SOL defense; P
argues that Hanna applies and since state law conflicts with federal rule, federal rule
should apply
(b) Rule: For the Hanna analysis to apply (i.e. federal rule trumps state law) the scope of
the federal rule must be sufficiently broad to cover/control the issue before the court
(i) There must be a direct collision between the federal rule and the state law
(ii) If there is NO direct collision, then policies of Erie apply and must consider
whether adoption of federal rule would encourage forum shopping or inequitable
administration of law
(iii) (Note) Federal Rules should NOT be interpreted narrowly to avoid collision
with state law, but should be given their plain meaning
(c) Rule applied: P is wrong, state law applies because Rule 3 just covers commencement
of suit, does not directly say anything about federal rule tolling state service statute
(i) OK statute was substantive decision that service on and notice by D is an
integral element of SOL (establishes deadline for D, gives him peace of mind,
makes it unfair after SOL to make D put together defense against claim)
WHEREAS federal rule doesnt specifically address SOL at allthey can stand
side by side, each controlling intended sphere of conduct without conflict
(ii) So have to look at principles of Erie: this doesnt encourage forum shopping,
but would be inequitable administration of the law
(d) Criticism: there might be forum shopping because P would opt for federal law since it
is easier
(19) Walker illustrates that if S. Ct. has applied Erie to a certain case involving rule, then Court will
uphold it when new case comes up with similar fact pattern
(20) Burlington Northern Railroad v. Woods1987, p. 366
(a) Synopsis: Personal injury case, diversity of citizenship; P got big money damages, D
obtained stay pending appeal; Ap. Ct. affirmed judgment for P and applied a penalty
against D in accordance with Alabama statute (AL statute: Upon affirmance of stayed
money judgment, court must award penalty equal to 10% of judgment); AL also had
similar rule to Federal Rule 38 has discretionary provision for frivolous lawsuits
(b) Did state statute (mandatory penalty) or discretionary App rule 38 apply?
(c) Rule: Hanna applies to appellate procedure using reasoning in Walker
(d) Rule applied: state law does NOT apply because federal rule sufficiently broad to
cover question of stay AND does NOT mandate 10% penalty; federal Ap. Ct. may want
to apply less than 10% penalty, so state law is in direct collision with federal rule, so
federal rule applies. Rule 38 conflicts with state statute and is valid because it deals
with procedural matters.

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(e) SO it satisfies constitutional and rules enabling acts standards because if affects process
of enforcing litigant rights and not rights themselves.
(f) Did defendant appeal because they thought it was likely to succeed or just to delay
payment to delay payment for months or years
(i) They are just trying to delay
(ii) AL statute is probably trying to deal with that issue, so AL imposed fine on
every unsuccessful defendant appellate
(g) is their concern substantive or procedural, State didnt think penalty undermined Rule
38, but SC said it did conflict with statute because App Ct might want to award less
than 10% for damages of undue delay
(h) Rule 38 forbids automatic penalty
(i) Rule 38 is valid and arguably procedural and does not abridge substantive rights
(i) Doesnt abridge substantive rights affects process of enforcing litigants rights
and not rights themselves
(21) Gasperini v. Center for Humanities, Inc.1996, p. 366
(a) Synopsis: P journalist and photographer, gave D slides for their video; D supposed to
return slides but they lose them; P brings diversity case in NY federal court for breach
of contract, conversion, negligence; Jury awards $450,000 in damages!expert
testimony said industry standard value of lost slide is $1500, times 300 slides yields
damage award; Ap. Ct. applies NY law to reduce damage award to $100 K, saying that
expert testimony insufficient to justify verdict; P says 7th Am. should apply and Ap. Ct.
shouldnt be allowed to review jury verdict
(i) Old NY Common law: Only excessive jury verdicts that shocked the
conscience of the court could be reduced
(ii) New York law (CPLR S 5501(c)): allows Ap. Ct. in state case to review size of
jury verdict and order a new trial if it finds damage materially deviate from
what would be reasonable!courts to look at awards approved in similar cases
to determine reasonableness
(iii) Federal law: 7th amendment (trial by jury) allocates trial court functions
between judge and jury and also controls allocation of authority to review
verdicts (no fact tried by a jury shall be otherwise re-examined in any Court of
the United States, than according to the rules of common law) BUT Ap. Ct. can
review T. Ct.s decision under abuse-of-discretion standard
(b) Does NY law apply in a diversity case in a federal court located in NY the ISSUE
(c) HOLDING NYs law controlling compensation awards for excessiveness or
inadequacy can be given effect, without detriment to the 7th Amendment, if the review
standard set out in the CPLR 5501(c) (NY law) is applied by the federal trial court
judge, with appellate control of the trial courts ruling limited to review for the abuse
of discretion. P.384
(d) Rule: Nothing in the 7th Amendment precludes appellate review of the trial judges
denial of a motion to set aside a jury verdict as excessive
(e) Rule applied:
(i) 5501 is both substantive (deviates materially standard controls Ps damage
award) and procedural (assigns decision-making authority to Appelate division)
(ii) Since it is procedural, have to determine whether 5501 affects essential
characteristic/concern of federal system (from Byrd case)

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(a) It does NOT because Ap. Ct.s already have a standard for review,
abuse-of-discretion, of T. Ct. decisions that is similar to 5501 deviates
materially standard in NY
(b) This is different from Burlington because NY statute isnt capping
damages, just requiring court to look at case law to decide whats
reasonable
(iii) So now consider substance, apply twin aims of Erie: if DONT apply 5501, then
there is different result in state and federal court, so it IS outcome determinitive,
would cause forum shopping and would be inequitable administration of the law
(iv) Byrde deals with allocation of trial authority, this one doesnt
(v) Nothing in 7th amend that precludes app review of trial motions to set aside jury
award as excessive
(f) DISSENT: Rule 59 governs this case (new trial allowed for reasons only where trials
have been granted up to this point in courts of UScourts of US only allowed new trial
when there was miscarriage of justice) and there is no option to resort to state law
f) Roadmap for choice of law in diversity cases:
(1) If there is Congressional statute that governs: apply supremacy clause analysis (Article VI)
does law cover area, is it valid under const., if it is, then it applies
(2) If there is a Federal Rule that governs: Hanna analysisrule promulgated under REA, ex:
federal rules of evidence, appellate procedure, civil procedure
(a) Does federal rule apply?
(b) Is there a conflict between federal rule and the state ruleHave to look at the cases for
guidance on conflict (Hanna, Burlington Northern), might be room for argument, have
to show both sides
(i) If there is no conflict, then apply federal rule AND state law
(ii) If there is conflict go to step three
(c) Is the rule valid under REAdoes it abridge, enlarge, modify substantive right
(i) Issue is whether there is substance or procedureagain room for arguments,
have to show both sides
(ii) Hard to reach conclusion that federal rule is not validS. Ct. has NEVER found
that federal rule does that (going against authority of S. Ct., Advisory Cmte, and
Congress, saying they are all wrong); not even with rule 35 (medical exams)
(iii) Is rule constitutional, if it affects procedure it is
(3) Federal practice: not compelled by Rule or statutedo Byrd balancing
(a) Look at federal interest, state interest, and see what impacts are on outcome result
(i) This is what court did in Gasperini (Scalia (dissent) would have applied fed
supremacy approach, do a Hannah analysis, and applied rule 59 and st law),
byre, and syzanti
(ii)
have a fed rule of evidence, procedure then we have a Hannah analysis
If it doesnt involve those but invlolves practice then do the byrde analysis
On sum jud, mot direct verdict qualified current evidence test is one we apply (its current)

RE: exam

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look at exam sample, give us fact patterns to analyze, set out only relevant law we will use to apply to the facts,
apply the law as it exists today, dont need to provide history give arguments pro and con (there will be room to
argue) can cite cases as a way of making arguments quickly, conclusion.
Write in paragraphs
Answer all the questions (will have suggested time limits)
If case law is split then let him know, if facts are ambiguous let him know
Spend time making outlines for answers then start to write once Ive spotted issues that jump out.
Biggest problem will be having too little time.
All short answer questions
Ex: if they move for sum jud ro mot for dir verdict how should it be decided
Well known cases will get points, and its an easy way to make points quickly, so they may be useful (if it is well
known can use one party name)
He is in office in the mornings
When balancing federal practice and state he is talking about federal rules promulgated in out blue rule book. If you

END OF SEMESTER
g) Role of Congress
(1) Within constitutional limits, Congress can expressly or impliedly make choice between state
and federal law and its choice will bind federal courts
(a) Under Const. structure, Congress is more suited to articulate federal interest
(b) If Congress chooses federal law, it can specify the content of federal lawbut
sometimes delegates this task to federal courts
(2) Examples of Congressional Choice of law:
(a) Evidence Rule 501: State privilege rules apply in certain circumstances [not federal
rules]
(i) There is no federal interest strong enough to justify departure from State policy
(ii) If didnt apply State policy, then forum shopping would be promoted
(b) Evidence Rule 407: federal law governs admissibility of subsequent remedial measures
2. FEDERAL LAW
a) US Constitution generally dictates choice of federal law in federal courtsbut not always
(1) Erie court said that there is NO general common law
(2) But on same day as Erie there was S. Ct. case that said there is still a need for federal common
law to preserve federal interests
(3) Example: interstate commerce, international disputes, admiralty, Indian relations
b) Clearfield Trust Co. v. United States1943, p. 381
(1) Synopsis: Federal reserve bank check sent out to B; B never got check, someone else did; that
other person forged signature, went to JCP and got cash and merchandise with check; JCP
endorsed over to D; B notified US Govt (P) of forgery; P delayed notice of forgery to D for 8
months, then brought suit against D for reimbursement; P sued in federal court because of 28
USC S1345 which vests original jurisdiction to federal courts over civil actions in which is US
is P;
(a) T. Ct. said law of PA applies and that delay of notice barred suit

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(b) T. Ct. went to state law because there was no federal statute but there is S 1652 (Rule of
Decision Act) which says that if there is no federal statute, you go to state law
(2) Rule: The rights and duties of United States on commercial paper which it issues are governed
by federal common law rather than local law
(3) Rule applied: Erie doctrine doesnt apply to this action; old federal case law shows that delay
in notice does NOT bar suit
c) S. Ct. in Clearfield did not clearly state where source of authority to make federal common law comes
from, but there are some possibilities:
(1) Comes from federal courts original jurisdiction over some of these cases
(2) Court performing constitutional function
(3) Rooted indirectly in federal statutes and Constitution
(4) Federal interest in some situations is so important because the rule in the case is so important
(5) ALSO S 1652 only says that state law applies only in cases where they applycould just
read that broadly and say that cases like Clearfield fall under cases where they dont apply
d) Whats the content of federal common law?
(1) There is not always a federal standard
(2) State law could be incorporated OR
(3) Uniform federal law could be fashioned that applies in all the states to achieve uniformity and
predictability
e) Multi-state corporations have trouble predicting what law applies, why should federal government get
special leeway? argument for is that federal govt are dealing with our money; argument against is
that federal govt shouldnt get special privilege
f) United States v. Kimbell Foods, Inc.1979, p. 383
(1) Synopsis: Two cases, (1) TX, debtor has federal loan from SBA and also debt from private
party on same collateral, TX law says private lien has priority; (2) GA, debtor has federal loan
from FHA, and also debt from repairman on collateral of tractor, GA law same as TX; Lower
courts differed on which law should applyT. Ct. applies TX law, Ap. Ct. creates rule out of
existing federal common law and applies that, saying there is a substantial enough federal
interest to do that
(2) Test: Federal programs that by their nature must be uniform in character nationwide
necessitate formulation of controlling federal rules BUT when there is little need for national
uniform body of law, state law may be incorporated as federal rule of decision
(a) If choose state law
(i) Have to consider whether state law would frustrate specific objectives of federal
programs
(ii) State law would be preferred if commercial relationships undertaken in reliance
of local law
(b) If choose federal law
(i) Have to consider whether application of federal law would disrupt commercial
relationships predicated on state law
(ii) Have to show that program relies on nationwide acts of federal government
emanating in a single form from a single source
(3) Rule: Absent congressional directive, the relative priority of private liens and consensual liens
arising from Government lending programs is to be determined under nondiscriminatory state
law (here there was no necessity for national standard and making a federal law would disrupt
commercial rules proven workable over time)
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(4) Rule applied: There is no problem wrt to frustrating federal interests, also programs run by
local staff, familiar with local law, so it would not be difficult to apply local law; thus GA and
TX law applies, private liens get priority
g) Illinois v. City of Milwaukee1972, p. 386
(1) Synopsis: State of IL brings suit against 4 cities, 2 local sewage commissions in WI to abate
public nuisance caused by Ds pollution of Lake Michigan; when P brought suit there was no
federal statute on nuisance, but later Congress enacted water pollution act that governed
situation
(2) Rule 1: Absent federal statute, federal common law can be applied because it is covered under
laws of the United States in 28 USC S 1331 (Federal Question)
(3) Rule 2: When Congress addresses a question previously governed by federal common law, the
need for unusual exercise of lawmaking by federal courts disappears
(4) Rules applied: When P brought suit, it was decided applying federal law of nuisance, but after
Congress passed act, that act governed and decision changed in accordance with act

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E. STATE COURTS
1. These cases are reverse Erie problemstate courts applying federal law
2. REA does not apply, Supremacy Clause of Article VI DOES apply
3. Hinderlider v. La Plata River & Cherry Creek Ditch Co.1938, p. 387
a) Synopsis: Col. corp. brought suit in state court against State Engr of Col. to stop him from
preventing Ps use of river that ran from Col. to NM; Issue arose of relative water rights of two states
b) Rule: Whether the water of an interstate stream must be apportioned between the two States is a
federal question of federal common law upon which neither States statutes or common law can be
conclusivefederal common law binding even in state courts by Supremacy Clause of Article VI of
Const.
c) Rule applied: Col. state court had to apply federal law
4. Bombolisbasic rule that federal actions tried in state court will get benefit of federal substantive law but
would have to defer to state procedure (distinguished by Dice in that jury trial is too fundamental a right
to defer to state law)
5. Dice v. Akron, Canton & Youngstown Railroad1952, p. 387
a) Synopsis: P brought FELA action in OH state court; P alleging that D was negligent; P had signed Ds
release of all claims; P claims he was tricked into signing it, thought it was a receipt for back wages;
D claims they were not negligent and that P legitimately signed release of claims
b) Ohio law
(1) Releases: A person of ordinary intelligence who can read is bound by release he signs even
though he had been induced to sign it by deliberately false statement
(2) Trying factual questions of fraud: In negligence case, judge is permitted to resolve factual
issues of fraud rather than jury
c) Federal law
(1) Releases: Release of rights under FELA is void when induced by deliberately false statement
as to contents of release
(2) Trying factual questions of fraud: all factual issues of fraud MUST be tried jury
d) Rule 1: In federal actions, regardless of which court they are heard in, federal common law applies
e) Rule 2: The right to trial by jury is too substantial a part of the rights accorded by FELA to permit it
to be classified as mere local rule of procedure
f) Rules applied: Release governed by federal law because FELA actions are federal actions and factual
questions about it must be tried by jury, so if they decide it was based on false statements, then it is
void
6. Question raised by Dice is how far does state court have to go in following federal procedure
a) Federal right to jury trial is essential to FELA action
b) But state courts will probably not have to go so far as to apply federal rules of civil procedure
7. Brown v. Western Railway1949, p. 389
a) Synopsis: P brings FELA case in GA court; D railroad files general demurrer that pleading did not set
forth cause of action and was insufficient in law; GA rule is to construe pleading allegations most
strongly against pleader; Federal rule is simple notice pleading; State court applied GA rule and
dismissed Ps complaint
b) Rule: Strict local rules of pleading CANNOT be used to impose unnecessary burdens upon rights of
recovery authorized by federal laws otherwise desirable uniformity in adjudication of federally
created rights could not be achieved

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c) Rule applied: Federal rules apply, court shouldnt have dismissed complaint and P should be allowed
to try his case
8. Norfolk & Western Railway v. Liepelt1980, p. 390
a) Synopsis: FELA action for wrongful death in IL state court; IL court refused Ds request to instruct
jury that their award was non-taxable so they should not consider taxes when fixing award
b) Rule: Jury instruction as to taxability of award is governed by uniform federal common law, which
allows the instruction
c) Rule applied: Jury should have been instructedit would not be prejudicial to either party and would
eliminate area of doubt or speculation

II.Authority to Adjudicate
A. Supplemental Jurisdiction
1. FEDERAL QUESTION
a) Bell v. Hood pg 424
(1) P alleges that D (FBI agents) deprived him of due process and performed illegal search and
seizure in violation of the 4th and 5th Amendments to the United States Constitution; T. Ct. says
that there is no Federal Question so federal court does not have subject matter jurisdiction
(2) Ds argument that case did not state a claim under federal law:
(a) Complaint states a claim for the state common law tort of trespass
(b) Rule 12(b)(6) motionfailure to state a claim upon which relief can be granted--
because the Constitution does not authorize recovery of money damages for
constitutional amendment violation and Congress has not allowed this by statute (these
were federal officials rather than state, who Congress had provided to bring money
damages against. Now you can recover against federal officials under Constitution, they
are called Bivens Actions (sp))
(c) When fed officials violate rights, there was no statute enacted by congress that allowed
recovery, so D says the P didnt state a claim.
(3) Courts response:
(a) Rule 1:
(i) Federal courts must look at the way the complaint is drawn to see if there is a
right to recovery under federal law and if the complaint seeks to recover directly
under Const. or laws of United States, federal court must entertain the suit
(ii) Exceptions that are NOT substantial federal claims and will NOT get federal
jurisdiction:
(a) Where claim appears immaterial
(b) Wholly insubstantial and frivolous
(b) Rule 2:
(i) Federal question jurisdiction is not defeated simply because of Rule 12(b)(6)
(ii) Court must take jurisdiction to see if plaintiffs claim has merit and could
recover damages under the Constitution
(4) Rules applied: Ps complaint clearly states violations of Const. and seeks recovery under
Const., not just state law tort claims so federal court must entertain claim and then decide
based on merits whether it fails to state a claim (12(b)(6))
(5) Dissents concernwould give federal courts jurisdiction over state law claims

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(6) Summary P must present a substantial non-frivolous question of federal law. On a lesser
note, you may recover for violation of a federally conferred right violated by federal official
under the constitution.
(7) Suppose case was remanded Lower court has jurisdiction to hear claim. Suppose P also has
state law trespass claim, and no independent jurisdiction in fed court for state law trespass
claim (no diversity). Can fed court hear state law trespass claim? PENDANT CLAIM
JURISDICITON is used when single P, properly has a claim in fed court, and P APPENDS
onto claim that by itself is not allowed in federal court.
2. PENDENT CLAIM JURISDICTION
a) Defined
(1) Used when a single plaintiff has a claim properly in federal court against a single defendant
and the plaintiff adds onto his claim that in and of itself cannot be brought in federal court
independently
(2) Could arise when first claim is based upon federal law and non-diverse plaintiff seeks to add a
claim under state law
(3) Nothing in Article III expressly states that federal courts have jurisdiction over state law issues,
but Supreme Court has allowed it for policy reasons (see below)
b) Policies Promoted
(1) Judicial efficiencymore efficient to have a single resolution of related cases (since you could
have same efficiency in state courts, there is second policy)
(2) Encourages litigants to vindicate their federal claims in federal courts
c) Required Connection Between Federal and State Claims in Pendant jurisdiction
(1) Early history of Pendent claim (Hurn v. Oursler)
(a) Federal judicial power extends to cases that include all related facts and issues
(b) Required virtually total factual identity between the claims OLD RULE
(c) Three causes of action (1) copyright infringement [fed law], (2) unfair competition is
use of same play [state law], (3) unfair competition in use of revised version of play
[state law].
(i) Two distinct grounds that support a single cause of action, when only one arises
under federal law, is different than two distinct causes of action are alleged only
one of which is federal in question.
(2) Break through case on pendent claim jurisdictionAnswers question of what must connection
(United Mine Workers v. Gibbs) 423
(a) State and federal claims brought to the district courtJNOV on federal claim but
district court heard the state claim
(b) United States Supreme Court affirms sets out three element test:
(i) Must determine that there is a substantial, non-frivolous federal question (Hood)
federal question CANNOT be colorable
(ii) State law claim and federal law claim must arise from a common nucleus of
operative facts (i.e. same transaction, logical relationship test)this rejected the
Hurn requirement of factual identity
(iii) Claims would ordinarily be tried in one proceeding
(a) Ignoring state or federal nature of claim, IF plaintiffs claim is one which
the plaintiff would ordinarily be expected to try them all in one judicial
proceeding then federal court can try case

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(i) What does that means.
(ii) 1. Determine if there is a substantial non-frivolous federal
question (Bell v. Hood)
(iii) 2. Must arise from common nucleus of operative fact use
common sense, must arise from same transaction [called the
logical relation test] i.e. would it save time and effort if claim is
tried together.
(iv) 3. Would claim be solved in same proceeding. Satisfying 3 usually
follows if requirement 2 is met.
(v) Note fed courts have discretion to exercise pendant jurisdiction
(b) Usually satisfied by the common nucleus of operative fact test
(c) Types of cases where federal courts should not have jurisdiction:
(i) If the federal claims were dismissed before trial
(a) This was suggested by Gibbssince federal claim was dismissed, federal
court shouldnt hear the state claims
(b) However, it might be bad to dismiss state claims since there might have
been considerable effort already put into trial
(i) Thats why Supreme Court later softened this
(ii) Must have sufficient judicial investment in the claim in order to
hear state claim
(ii) If the state issue is predominant
(iii) If it is likely that the jury will be confused by treating divergent legal theories
(iv) If the state law is difficult or unresolved by the state courts
(d) If the state claim is closely tied to federal policyargument for pendent jurisdiction
might be strong
(e) Gibbs gives federal courts discretion over exercising discretion
(i) Creates inconsistency in application
(ii) Also Congress under Article III is supposed to have discretion of jurisdiction
3. ANCILLARY JURISDICTION [OTHER MAIN TYPE OF SUPPLEMENTAL JURISDICTION. MAINLY USED BY
DEFENDANTS]

a) Background
(1) (Blacks) A court's jurisdiction to adjudicate claims and proceedings that arise out of a claim
that is properly before the court. For example, if a plaintiff brings a lawsuit in federal court
based on a federal question (such as a claim under Title VII), the defendant may assert a
counterclaim that the court would not otherwise have jurisdiction over (such as a state-law
claim of stealing company property). The concept has now been codified, along with the
concept of pendent jurisdiction, in the supplemental-jurisdiction statute. 28 USCA 1367.
(2) Applies when claims asserted against P or third party over which federal court does not have
jurisdiction but are related to claims that federal court DOES have jurisdiction
(3) Claim to be added must arise out of the same transaction which was originally in federal court
use logical relation test to determine if in the same transaction
(4) Purposemore efficient to try cases with one lawsuit instead of multiple
b) Rules that resulted in the need for ancillary jurisdiction

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(1) Rule 13(a)compulsory counterclaims (EX: counterclaim does not involve diversity or
federal question, then ancillary jurisdiction gives federal court jurisdiction) (a citizen of TX
sues B a citizen of TX on a fed claim, and b has a state law counterclaim against a that arises
out of same transaction. There is no diversity, but there is ancillary jurisd that allows fed court
to hear state law counter claim because it arises out of same transaction.)
(2) Rule 13(g)cross-claims, claim by one party against a co-party (EX: defendant 1 sues
defendant 2)
(3) Rule 14(a)impleader, defendant sues a party who is liable to defendant because of the
original claim brought by plaintiff (EX.: A v B, diverse; B says if I am liable to A, then C is
liable to me, but C is non-diverse wrt to A)
c) Revere Copper & Brass Inc. v. Aetna Casualty & Surety Co.1970, p. 410
(1) Synopsis: P sues D in federal court, surety on performance bonds on construction Ks, allege
that Ds principal (F) failed to perform K obligations; diversity case; D denies recovery,
impleads F under Rule 14(a), claims that F agreed to indemnify P for all losses from
suretyship; F agreed with D but disagreed with and made claim against P; P tries to dismiss
case for lack of diversity
(2) Definition of ancillary jurisdiction: claim is ancillary when it bears a logical relationship to the
aggregate core of operative facts which constitutes the main claim over which the court has an
independent basis of (federal) jurisdiction
(a) 13(a) counter-claim IS anc. b/c it necessarily arises out off same transaction/occurrence
as original claim
(b) 13(b) permissive counterclaims MAY be anc., require indp. grounds of federal juris. b/c
may or may not arise from same t/o as original claim
(c) 13(g) cross-claim against co-party IS anc. because relate to original claim or counter-
claim thereto
(d) 14(a) Third Party Practice IS anc., not because arise from same t/o as original but
because impleader action would NOT exists without threat of liability arising from
original claim
(e) 24(a) Intervention IS anc. because third party claim relates to same property/transaction
as original claim
(3) Rule 1: A claim has a logical relationship to the original claim (and is therefore ancillary) IF it
arises out of same aggregate of operative facts as original claim in two senses
(a) That aggregate core serves as basis for both claims OR
(b) That aggregate core activates additional legal rights in a party defendant that would
otherwise remain dormant
(4) Rule 2: Ancillary jurisdiction is made available to litigants in a defensive posture who would
otherwise be prevented OR greatly burdened in adequately protecting their interests
(5) Rules applied: Fs claim comes out of same aggregate coreno doubt there is logical
relationshipso it is ancillary and federal court has jurisdiction
d) Questioning of Ancillary Jurisdiction (Owen Equipment & Erection Co. v. Kroger) 429
(1) Facts:
(a) Decedent was electrocuted when he hit an electrical wire while operating a steel crane
(b) Plaintiff (Iowa resident) sued Oklahoma Power District in federal court (diversity)
saying they negligently operated power line that caused Ps death
(c) OPPD filed an impleader attaching D crane manufacturer saying that Ds negligence
was proximate cause of Ps deathOPPD is dropped out of suit properly attached
Owen under ancillary jurisdiction

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(d) Defendant is found to be citizen of Iowa so there is no diversity and D moves to dismiss
for lack of subject matter jurisdiction and P then names Owen as a D and sues. But
there is no diversity between P and Owen. Ancillary jurisdiction over claim doesnt
apply because there is no federal claim present (no diversity jurisdiction).
(2) Supreme Court rejects jurisdiction:
(a) Even if case satisfies Gibbs test, that is not the end of inquiry [arose from same
operative facts] must also look to statutory limitationsIf case would undermine
congressional intent for complete diversity in 28 U.S.C. 1332 then ancillary
jurisdiction doesnt apply.
(b) Court fears that plaintiff could circumvent complete diversity requirement by suing
only diverse defendants and waiting for them to implead non-diverse parties
(c) Focused on posture of the party seeking the claim against a 3rd party
(i) Plaintiff in an offensive posturesince she brought the suit in federal court she
must abide by the rules of the court
(ii) Ancillary jurisdiction is usually used by defendant haled into court against his
will (defensive posture)fairness to the party in the defensive posture should
help guide the court
(d) Rule: Neither the convenience of litigants NOR considerations of judicial economy can
suffice to justify extension of the doctrine of ancillary jurisdiction to a Ps cause of
action against a non-diverse D in a diversity case

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4. CODIFICATION OF SUPPLEMENTAL JURISDICTION

a) 28 U.S.C. 1367 Supplemental jurisdiction


(1) Statute is a response to Finleybased on Findley, parties would have to split claims, there are
issues of res judicata between claims
(a) Finley Case P sues D1 (City) a non-diverse party. Wants to sue D2 (U.S.) as well.
Which means that a federal district court must hear the case because of exclusive
jurisdiction over the claim. So the claim against D2 is properly in fed court, and court
exerts pendant party jurisdiction over the city.
(b) 9th circuit rejected jurisdictional claim over the city
(c) SCOTUS re pendant party jurisdiction: They affirmed 9th circuit rejection of
jurisdiction, and say there is no pendant party jurisdiction. Cant exercise jurisdiction
over a non-diverse party to a state law claim.
(d) Now the P has to split her claims between fed and state court, and that doesnt make
sense in judicial economy standpoint
(e) Why did the court do that?
(i) The court could not circumvent statutory law.
(ii) 2 things necessary to obtain jurisdiction. 1. The constitution AND 2. An act of
congress
(a) Gibbs court held that there was pendant claim jurisdiction, but they
didnt examine whether there was statutory support for it OR pendant
party jurisdiction
(b) Not all types of pendant jurisdiction is invalid, only pendant party
jurisdiction
(f) After decision, all types of supplemental (including pendant) jurisdiction was in
question
(2) Tried to codify Gibbs (common nucleus of operative facts) and expand it to all forms of
supplemental jurisdiction
(3) Subsection A
(a) Common nucleus of operative facts test is laid out
(i) Supplemental jurisdiction may be applied when there is enough connection
between the claims as to promote judicial economy
(b) Expressly provide for pendent party jurisdiction, joinder, intervention, impleader
(c) Includes federal question and diversity cases
(4) Subsection BSpecial limitations to diversity actions:
(a) Implemented concerns set out in Owen
(b) Not allowed when it would encourage plaintiff to evade complete diversity requirement
by initially naming only those defendants who were diverse citizens and later adding
claims not within original jurisdiction
(c) Allowed when plaintiff is in a defensive posture because then P is not trying to
circumvent complete diversity requirement (EX: 3rd party D asserts claim against P, P
may assert compulsory counterclaim against 3rd party D)
(d) Only prevents federal courts from hearing supplemental claims asserted by a plaintiff in
an offensive posture against a non-diverse 3rd party

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(i) Once P is placed in defensive posture, then extending supplemental jurisdiction
over logically or factually related claim would not encourage circumvention of
diversity requirement
(ii) 3rd party D asserting claim against P, then rule 14 provides that P asserts
compulsory counterclaim against Ds claim, even though D may be a non-
diverse party, the fed court may exercise supplemental jurisdiction over the issue
(a) How does the 3rd party get into the suit?
(5) Subsection C
(a) Codification of Gibbs factors for when district court could use discretion to decline
jurisdiction:
(i) The state claim raises a novel or complex issue of state law
(ii) The state claim substantially predominates over the claim or claims over which
the district court has original jurisdiction
(iii) The district court has dismissed all claims over which it has original jurisdiction
(iv) Discretionary remand of pendent claims allowed when there are exceptional
circumstance and other compelling reasons for declining jurisdiction
(6) Executive Software North America, Inc. v. United States District Court
(a) Synopsis: P (African American) brings federal and state discrimination claims against
D; D removes to federal court; Federal T. Ct. refuses to retain jurisdiction
(b) Rule 1: A federal court can only exercise its discretion to retain or decline
supplemental jurisdiction only IF one of the four categories in 1367(c) applies
(c) 1367 codifies the discretionary factors that warrant declining jurisdiction
(d) Rule 2: S 1367(c)(4) (exceptional circumstances) should carefully channel courts
discretion by requiring the court to identify HOW the circumstances that it confronts
and in which it believes that the balance of the Gibbs values of economy, convenience,
fairness and comity provide compelling reasons for declining jurisdiction are
exceptional
(e) Rules applied: since T. Ct.s reasoning for decline doesnt really fit 1367(c)
requirements, they are ordered to reconsider granting jurisdiction

B. Territorial Authority to Adjudicate


1. THE FRAMEWORK
a) History
(1) Early English proceduresheriff would arrest the defendant and he would await trial in jail
(2) Eventually abandoned this idea and jurisdiction was established by service of process
b) Territorial JurisdictionA Starting Point (Pennoyer v. Neff, Supreme Court1878) pg. 475
c) This system protects defendants, by forcing plaintiffs to go find where defendants are, and prevents
defendants from being forced to present themselves in Ps court.
(1) 1st Lawsuit (Mitchell v. Neff)
(a) Mitchell sues Neff in Oregon state court claiming Neff owed him for legal services
(b) Neff was served by publication in local paper
(c) Neff failed to responddefault judgment to Mitchell
(d) Three days later Mitchell sells land to Pennoyer
(2) 2nd Lawsuit (Pennoyer v. Neff)
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(a) Neff sues to regain title to land in fed court in Oregon
(b) Lower court found for Neff because the affidavit was improper
(3) Court says there must be a showing by the court that it has territorial jurisdiction
(a) Process of the tribunals of one state cannot run into other states
(b) Authority of each tribunal is necessarily restricted by the territorial restrictions of the
state
(c) Within its limits, the state has almost exclusive power
(4) SCOTUS
(a) Had 2 things to consider 1. Was affidavit proper 2. Territorial jurisdiction
(i) Neff alleges that judgment in first lawsuit was void for lack of jurisdiction over
Neff.
(ii) Why should we require a showing that court has jurisdiction.
(a) Court must be able to grant relief
(i) Process of tribunals from one state cannot run into another state
aka they are concerned with ability to have power over parties to
the suit
(ii) Authority of each court is limited by the territorial limits of the
state in which it is established. Outside of those limits state has
virtually no power.
(b) Because Neff wasnt in Oregon the Oregon court had no power over him.
(iii) Service of process is how you bring defendant to the court, by directing them to
file an answer. So why shouldnt a state be able to exercise authority over people
outside of its territory?
(a) Protecting Ps interests
(iv) why cant process from one state run into another state
(a) its not from the constitution (14th amendment not in effect)
(b) common law principals, describe rights of states. Every state possesses
exclusive jurisdiction over persons within its territory. No State can
exercise jurisdiction over persons outside its territory.
(i) If neff was served personally in Oregon, would CA lose its
jurisdiction over him no whenever he is subject to suit in both
states
(ii) Then the question is how exclusive is every states power?
(iii) What if neff was not served in Oregon, but appeared by action
(waive personal jurisdiction by appearing before the court) then
he has submitted to Oregon jurisdiciton. Then the question is how
can individual give up state right (CA) look at case
(b) Power test jurisdiciton based on courts authority, and imposed categorization test
upon courts (power over whom or what) so divided jurisdiction into three categories
below
(5) Pennoyer gives rise to three categorizations for territorial jurisdiction:
(a) In Personam Jurisdiction
(i) When judgment makes defendant personally liable
(ii) Only by personal process within the forum state, or
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(a) Even if present in the state only briefly
(iii) By consent
(iv) When impossible to serve others inside forum state there are other alternatives
in rem and quasi in rem
(v) Power over person requires presence in the state or consent, so publication
would not suffice.
(vi) If you cant personally serve defendant then alternative is in rem jurisdiction
(b) In Rem Jurisdiction
(i) Property is the focus of the suit its the physical presence of the property that
gives state right to adjudicate rights of person to property whether they are in
state or not
(ii) Personal service within the jurisdiction is not necessary
(iii) Physical presence of the property within the state vests the state with jurisdiction
to adjudicate the rights of any individual whether that person was in the state or
not
(iv) Only allows the court to adjudicate rights of people anywhere in the world but
only with respect to their rights in that property
(v) In rem jurisdiction didnt give authority to assess damages against any
individual or in anyway control that persons rights apart form that persons
interest in the property
(c) Quasi In Rem Jurisdiction
(i) Substance of the case has nothing to do with the in-state property but the state
lacks authority to assert in personam jurisdiction
(ii) Can assert jurisdiction within the state by attachment or garnishment at the
beginning of the suit to allow seizure of the property to secure any judgment
that the plaintiff might ultimately obtain on the claim
(a) A from IL who sues B from NY in IL state court for damages for breach
of a contract. B is not subject to in personem jurisdiction but does own a
piece of IL property. The property is not relevant to substance of case, A
may sue B for value of IL property by attaching it at the time of the suit.
Further if value of property is not equal to judgment costs, A may still
sue B.
(b) Cases involving status of states inhabitants may be adjudicated
(i) One spouse leaves state, and spouse left behind seeks divorce,
may decree divorce without personal jurisdiction without the
spouse. Because marital status is like property it is like in rem
jurisdiction. Cannot decide questions of alimony without in
personem jurisdiction over plaintiff.
(c) State may insists on consent to jurisdiction in advance.
(i) If company wants to do business they may do this before business
is granted
d) Seizure of Property is not Constitutionally Necessary (Closson v. Chase, Wis.1914)
(1) Court saysactual seizure of the property is not constitutionally necessary
(2) Plaintiff only has to direct the action toward some specific in-state property at the onset of the
action
(3) Butmost states require seizure of the property as a prerequisite for non-personal jurisdiction

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NOTE HE ASKED WHAT IS PROPERTY, IS A LAW DEGREE PROPERTY, ARE EARNINGS PROPERTY, what
about bank accounts where is your money what state is it in where does your bank account reside. Hard to apply
pennoyer quasi and in rem jurisdiciton when dealing with intangible property.
e) Quasi In Rem Jurisdiction is Extended to Intangible Property (Harris v. Balk, Supreme
Court--1905) pg 490
(1) Debt clings to debtor
(2) Notice of debtee not requiredhe will get notice from seizure
(3) Problem of trying to apply quasi in rem approach
(a) P is trying to apply Ds property to satisfy a claim unrelated to the property
(b) Facts Harris owed Balk and Balk owed Epstein. Harris, NC and Balk is NC. Balk
owes Epstein who is a resident of Maryland. While Harris is in MY he is attached to a
judgment by Epstein. Harris returns to NC and pays Epstiens attorney. Balk tries to get
repaid by Harris, and Harris says he already paid Epstein.
(c) Court says that garnishee is found in state and process is served there then the court can
(d) 1st suit in MY Epstein v. Balk with Balks property being Harris who is Balks
debtor. The jurisdiction in MY is quasi in rem. Location of the property (debt doesnt
have location) but Balks property is in the state of MY. Debt must cling to the debtor
(Harris) because Balk could catch Harris in MY and sue on the debt
(e) Effect of decision presence of debtor is sufficient expands quasi-in rem
(i) Pennoyer might be distinguishable in that it dealt with real property but was still
quasi in rem
(ii) Do you want to limit quasi in rem to real property? If D had no real property you
would be out of luck. So no.
(iii) It is better to distinguish Pennoyer on the grounds that quasi in rem deals with
tangible property
(f) Is this type of quasi in rem jurisdiction fair.
(i)
f) Two Exceptions from Jurisdictional Requirements
(1) Cases involving the status of a states residence does not require personal servicemarriage
(divorce when person has left the state)
(a) Marriage status is like propertyin rem jurisdiction
(b) Plaintiffs state can only decree the divorcecant decide alimony or child support
without in personam jurisdiction over the defendant
(2) State might insist upon consent to jurisdiction before it allows a person to engage in activities
in the state

2. JURISDICTION OVER PERSONSTHEORY IN EVOLUTION

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a) Presence as Basis for Jurisdiction
(1) Transient Jurisdiction
(a) Physical presence in the state is enough to have jurisdiction (Pennoyer v. Neff)
(b) Jurisdiction is established if defendant is served in the state even if only for a few hours
(Darrah v. Watson, Iowa1873) pg. 498
(c) Jurisdiction is established if defendant is served above the state in an airplane (Grace v.
MacArthur, Arkansas1959)
(2) Enforcement of judgments in other states:
(a) Judgment for plaintiff can be enforced in the state it was rendered
(b) Enforcement of judgment in other states:
(i) Bring action in other states courts
(ii) Defendant can collaterally attack judgment by claiming its invalid
(c) Requirements for a valid judgment before it can be enforced:
(i) Court must be competent to hear the casemust have subject-matter jurisdiction
(ii) Court must have sufficient basis for adjudicatory authority over defendant or
other target of actionmust have territorial authority/j in personam, in rem, or
quasi in rem j
(iii) Person to be legally affected must have had the opportunity to be heardmust
be procedural due process
(d) If judgment is found to be validother state must give judgment the full faith and
creditsame effect of valid judgment in original state
(e) The law applied to determine the validity of the judgment is the law of the rendering
court subject to certain constitutional limits
(i) Ex. Darrah- Iowa ct looked to Va law to see if J had been acquired and then
asked if it had been consistent with due process
(3) Exceptions to transient jurisdiction:
(a) Cannot fraudulently entice a person into a state to serve them (Wyman v. Newhouse, 2nd
Cir.1937)
(b) In most states a non-resident party, witness, or counsel is immune from service of
process when present in the state for attendance at litigation and for reasonable time to
and from
(c) Burnham v. Superior Courtrevisit this one**
b) Domicile as Basis for Jurisdiction
(1) Domicile alone is sufficient for jurisdiction (Milliken v. Meyer, Supreme Court1940)
(a) Domicile in the state is alone sufficient to bring an absent defendant into reach of the
states jurisdiction for purposes of a personal judgment by means of appropriate
substitute service
(b) Authority of a state over one of its citizens is not terminated by his mere absence from
the state
c) Consent as Basis for Jurisdiction
(1) Consent before jurisdiction sought is usually effective
(a) Usually in contracts that say defendant will consent tot jurisdiction if there is a breach
(b) Actual consent to jurisdiction
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(c) Issue is if defendant voluntarily, intelligibly, and knowingly consented
(2) Consent after the fact
(a) Done by accepting or waiving service even though he is physically outside the state
when he does the acts constituting the acceptance or waiver
(b) Done by entry of general appearance in an action by the defendant in person or by his
authorized attorney
(3) Implied Consent (Hess v. Pawloski, Supreme Court1927)
(a) Massachusetts statute appointing state official agent for out of state drivers that drove
through state
(b) Notice done by registered mail to defendant
(c) Power to regulate its justification even if state cant forbid the conduct (cars are
dangerous machines)
(d) Implied because presumes driver knows the law of the state before he drives
through it
(e) Problem with implied consentno clear stopping pointstate can regulate almost
anything
d) Acts Done in State as Bases for Jurisdiction
(1) State has power to adjudicate claims where defendant acted in the state and a claim arose from
those actions
(2) Cannot exclude defendant from doing business in the state and thus cannot establish consent as
a condition to permitting business to enter state (Flexner v. Farson, Supreme Court517)
(3) State can regulate and demand jurisdiction where special interest (Henry L. Doherty & Co. v.
Goodman, Supreme Court1935)
(a) State has special interest in regulating certain industries (like securities) because of risk
of fraud
(b) State can demand jurisdiction in these special interest cases
(4) When a state has a special interest in regulating activity personal jurisdiction can be recognized
(e.g., real estate ownership) (Dubin v. City of Philadelphia, Supreme Court1938)
(a) Defendant can be held liable for suits arising from their land in the state
(b) State has interest in regulating real estate ownership
(5) If you sue in a jurisdiction then the court has jurisdiction over you for any cross-actions
arising from the lawsuit (Adam v. Saenger, Supreme Court 1938)
(a) Plaintiffs voluntary act to bring the original suit
(b) Submits him to jurisdiction of the court
(c) Court has jurisdiction for all purposes to give justice to defendant
(d) Price a state may exact for opening its courts up to out-of-state plaintiffs
(6) Appearance as Defendant
(a) Defendant could ignore suit and collaterally attack the judgment when plaintiff
tries to enforce the judgment in the defendants state
(i) If defendant tries to collaterally attack the judgment then he may not attack
the merits of the claim
(ii) May only attack the validity of the judgment
(b) Can challenge personal jurisdiction in the original suit
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(i) Problems:
(a) Used to beany appearance in case authorizes jurisdiction
(b) Many states have allowed defendant a special appearance to
challenge jurisdiction
(i) Sole reason for appearance must be for special appearance
(ii) Not submitting to courts jurisdiction
(iii) Defendant must do nothing that looks like a general
appearance
(ii) Federal rules have no provision for a special appearance
(a) Defendant can raise jurisdiction question by a Rule 12(b)(2) motion
or
(b) As a defense in the answer
(c) If defendant challenges personal jurisdiction, fails, then challenges the merits of
the case
(i) Some states say you lose the right to appeal and challenge of jurisdiction by
going forward and challenging the merits
(ii) Most states and federal courts, however, allow you to challenge the merits
and appeal the matter of jurisdiction
e) Jurisdiction Over Corporations
(1) Domestic Corporationsincorporation in the state gives the state jurisdiction for any
action against the corporation regardless of where the action arose
(2) Foreign Corporations
(a) Originally could not get jurisdiction over corporations incorporated outside of the
state unless they consented to jurisdiction
(b) Overcoming this:
(i) Firstcorporation must consent to jurisdiction to do local business in the
state and appoint an agent for process (forced consent)
(ii) Secondif foreign corporation did local business in state, personal actions
could be brought against the corporation for actions done in the state,
personal actions could be brought against the corporation for actions done
in the statebreaking point because state did not have power to exclude
corporations from doing business in their state
(iii) Thirdpresence of corporation in the stateif it does business in such a
manner and to such an extent as to warrant the inference that it is present
in the state, allowed claims at least in the actions on claims arising from
business done within the state
(3) Foreign corporation who did not consent, does business in the state, but the claim did not
arise from the business it did in the state
(a) Some cases say no jurisdiction for claim unconnected to business in the state
(b) Some cases allowed
(4) International Shoe and Its Progeny
(a) Minimum Contacts (International Shoe Co. v. Washington, Supreme Court1945)
(i) Company wouldnt pay into state unemployment workers compensation fund
(ii) Pennoyer labels abandoned
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(iii) Two Step Test:
(a) Level of activity in the forum state
(b) Degree of claims relatedness to activity
(iv) Four Categories of Test for Minimum Contacts
(a) Category #1Continuous and Substantial Activity and a Related Claim
sufficient contact for jurisdiction
(b) Category #2Casual or Isolated Activity and an Unrelated Claimin
general, insufficient contact for jurisdiction
(c) Category #3Continuous and Substantial Activity and an Unrelated
Claim
(i) When defendants activities are so substantial then the court can
have jurisdiction over an unrelated claim
(ii) General Jurisdictiona corporation might have sufficient contact
with a state to justify asserting jurisdiction over it for all claims
(iii) Specific Jurisdictiona court might be able to establish
jurisdiction over a corporation but only over claims related to that
activity
(d) Category #4Casual and Isolated Activity and a Related Claim
depends upon the nature of the activity
(v) Exercise of jurisdiction must not offend traditional notions of fair play and
substantial justice
(vi) International Shoe doctrine applies to corporate as well as individual defendants
(b) General Jurisdiction (Perkins v. Benguet Consolidated Mining Co., Supreme Court
1952)
(i) Filipino businessman in Ohio conducting business from Ohio
(ii) Category #3Continuous and Substantial Activity and an Unrelated Claim
(iii) General jurisdictiondefendant can be sued for unrelated activities if overall in-
state activity is substantial enough
(c) Convenience Test (McGee v. International Life Insurance Co., Supreme Court1957)
(i) Only activity in the statedefendant sold and maintained insurance policy
(ii) Category #4Casual and Isolated Activity and a Related Claim
(iii) High-water Mark for personal jurisdiction
(iv) Factors to consider for jurisdiction (McGee Test):
(a) Plaintiffs interests and conveniences
(b) Convenience of the witnesses
(c) Defendants interests and conveniences
(d) States interests in having the suit there:
(i) Has a special interest in regulating insurers (statute)
(ii) Interest in provident effective remedy for their citizenry
(v) McGee broadens the focus: defendant and plaintiffs interests are now
considered
(vi) Two part approach after McGee:

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(a) First consider minimum contacts
(b) Second consider all the interests to determine whether exercising
jurisdiction would be reasonable
f) Jurisdictional Statutes
(1) Relaxation of jurisdiction authority in International Shoe encouraged states to expand their
jurisdictional reach
(2) Long-arm Statutes in General:
(a) Base jurisdiction on defendants activities within the forum state or
(b) Commission of any one of a series of enumerated acts within the jurisdiction
(c) Long-arm statutes were narrow or broadsome extended to any basis except what is
unconstitutional by state or federal standards
(3) Need statutes because courts dont have inherent power over jurisdiction
(4) Illinois Long-arm Statuteinterpreted to the limits of due process (Nelson v. Miller, Ill.
1957)
(5) Example of interpretation of long-arm statute (Gray v. American Radiator, Ill.1961)
(a) Plaintiff suing defendant who made a valve and sold it to an out-of-state boiler
manufacturer who sold it to Illinois companyboiler blows up in Illinois
(b) Difficult to interpret tortious activitywhere did it take place?
(c) Look at where the last event takes place to determine where tortious act occurred
(boiler blew up in Illinois)
(d) Nelson said that the courts could go to the limits of due process when the plaintiff
alleges a tortious activity; (when international shoe and its progeny would allow it)
(6) Two step process for personal jurisdiction:
(a) Is there a forum state statute authorizing assertion of personal jurisdiction over persons
outside the forum state under circumstances similar to the case?
(b) Does the assertion of jurisdiction meet the constitutional standards of International
Shoe and its progeny?
(7) California long-arm statute:
(a) Advantages
(i) Pulls two part inquiry into one questionare the due process requirements met?
(ii) Just have to be concerned with International Shoe and progeny
(iii) Maximizes jurisdictional reachbetter for plaintiff
(b) Disadvantagesnarrow statutes give more warning to defendants about their being
subject to state jurisdiction
(8) Nelson Overruled (Cook Associates v. Lexington United Corporation, Ill.1981)
(a) Illinois long-arm statute does not go to the limits of due process
(b) Have to do two-part analysisstatute and due process
(c) Doing Business Standard
(i) Doing business when conducting business of such a character and extent to
warrant inference that the corporation subjected itself to jurisdiction of the state
(ii) No regularity of activitiesmust have fair measure of permanence and
continuity

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3. SOME COMPLEX CASES
a) Complex Problems of Relationship to the Forum State
(1) Jurisdiction by Necessity (Mullane v. Central Hanover Bank & Trust, Supreme Court1950)
(a) New York statute allowed pooling of trust funds
(b) Central Bank wants an accounting beneficiaries given notice by publishing
(c) Court does not stress Pennoyer categoriesdont need in rem/in personam distinction,
just need minimum contacts
(d) Court opts for Jurisdiction by Necessity:
(i) State must have the power to clear up title to property in the state
(ii) Jurisdiction sometimes exercised in an action with multiple and indeterminate
parties because practical necessity requires that one forum have the power to
adjudicate the claim
(2) Unilateral Activities of the Defendant Cannot Satisfy Minimum Contacts Requirements
(Hanson v. Denckla, United States1958)
(a) Delaware trust creator appointed new beneficiaries in Florida
(b) Reinstates Pennoyer categoriesin rem action but the trust is Delaware instead of
Florida
(c) Floridas jurisdiction over Delaware trustee is unconstitutional
(i) However minimal burden of defendant is in a foreign tribunal, cannot force
jurisdiction unless defendant has minimum contacts
(ii) Trustee had no minimum contactsno office, no solicitation of business
(d) Activities of Donner are insufficient:
(i) Unilateral activities of those who claim some relationship with an out-of-state
defendant cannot establish minimum contacts
(ii) Must be some act by which the defendant purposely avails himself to the
privilege conducting activities in the state thus invoking the benefits and
privileges of the state
(e) Court distinguishes this case from McGee:
(i) Solicitation in McGee was an act by which the defendant purposely availed
himself
(ii) No forum state interests
(f) Trustees business relationship with creator might be purposeful availment, but the
court didnt want rich sisters to take money away from the kids
(g) Restricts jurisdictionmust look at defendants activities
(3) All assertions of state court jurisdiction must meet test in International Shoe and its progeny
(Shaffer v. Heitner, Supreme Court1977)
(a) Derivative action brought on behalf of corporation because officers made Greyhound
liable for anti-trust
(b) Quasi in rem jurisdictioncourt seized stock shares in the state
(c) Supreme Court reversed jurisdiction
(i) All assertions of state court jurisdiction must meet test of International Shoe and
its progeny

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(ii) Presence of property may bear upon jurisdiction by providing contact with the
forum state and defendant
(iii) Two examples where there may be an exception to the rule:
(a) Claim is to property itself as the source of the underlying controversy (in
the case of title to the propertydefendants claim to the property is the
purposeful availment to the state)
(b) Claim arises out of rights and duties of land ownershipsuit by a person
injured on defendants land claiming land was not safely maintained
(iv) Presence of property alone will no longer give jurisdiction, must show other ties
among the defendant, state, and the litigation
(v) May use quasi in rem jurisdiction if no other forum is available to the defendant
(vi) Jurisdiction was found to be improperproperty did not show minimum
contacts, no other acts by defendant related to the claim in the forum state
b) The FrameworkRestructured or Resurrected?
(1) Applying the Doctrines (Kulko v. Superior Court Supreme Court1978)
(a) Mother and children moved to California, father consented to the move
(b) Mother in California wanted to increase child support, California upheld jurisdiction
because the father voluntarily assented to custody change
(c) Supreme Court says no jurisdiction
(i) Defendant did not purposely avail himself of the privileges and protections of
California state law
(ii) If jurisdiction were valid, defendant would have had to prevent the children
from going to California to halt jurisdictionthis would put an undue burden
upon the family unit
(iii) Defendant got no commercial benefit from sending children to California
(iv) Would offend the notions of fair play and substantial justice if ex-spouse could
decide where to sue the other person
(2) Power Branch and Convenience BranchA Merging of the Doctrines (World-Wide
Volkswagen Corp. v. Woodson, Supreme Court1980)
(a) Power Branch (Hanson and Pennoyer)
(i) Power branch acts as threshold testmust be addressed 1st before determining
jurisdictionif power test is met then must go on to convenience test
(ii) Inquiry focused upon defendants activities alone
(iii) Quality/quantity of defendants state related activitiesminimum contacts
(International Shoe)
(iv) Defendants activity must purposely avail himself to the state (Hanson)
(v) Defendants activity in the forum state must be such that should cause the
defendant to reasonably anticipate being haled into the states court
(vi) Foreseeability of products ending up in state
(a) Not unreasonable to subject defendant to suit in forum state if defendant
makes effort to serve the states market directly or indirectly
(b) Reasonable person must expect to be sued in forum state

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(i) E.g., state has jurisdiction over a defendant who has delivered
products into the stream of commerce with the expectation that it
will be purchased by consumers in the forum state?
(b) Convenience Branch (McGee) the court doesnt consider the convenience branch
there was clearly no jurisdiction according to the power branch
(3) Another Overview of the Doctrines (Burger King Corp. v. Rudzewicz, Supreme Court1985)
(a) Facts:
(i) Burger King, a Florida Corporation, contracted with defendant in exchange for a
fee, monthly payments, and regulations
(ii) Defendant from Michigan
(a) Applied and negotiated in Michigan
(b) Signed contract that included submission to regulation by plaintiff
(c) Agreed to application of Florida law in construing the contract
(iii) Plaintiff sues for breach of contract in Florida court, defendant is served in
Michigan
(b) Supreme Court rules that judgment was valid, applies a two step analysis:
(i) Power Branch
(a) Were defendants activities such that he purposely availed himself to the
forum state?
(b) Has defendant purposely established minimum contacts (fair warning)?
(c) Do minimum contacts relate to the claim?
(d) Conduct must be such that they would reasonably anticipate jurisdiction
was established
(e) Two examples:
(i) Interstate contractual obligationsparties who reach out beyond
one state who create continuing relations with parties in another
state
(ii) Stream of Commerce
(ii) Convenience Branch
(a) Five part analysis:
(i) Burden on defendant
(ii) Forum states interest in adjudicating the dispute
(iii) Plaintiffs interest in obtaining convenient and effective relief
(iv) Interstate judicial systems interest in obtaining the most efficient
resolution of the controversies
(v) The shared interest of the several states in furthering fundamental
substantive social policies
(b) These serve to establish the reasonableness of jurisdiction upon a lessor
showing of minimum contacts than would otherwise be required
(c) The convenience branch may render a jurisdiction unreasonable even
with sufficient minimum contacts
(iii) Court left open the possibility that if undue influence or unweaning bargaining
power were present that it would make jurisdiction unreasonable
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(4) Convenience Branch can overpower the Power Branch (Asahi Metal Industry Co. v. Superior
Court, Supreme Court1987)
(a) Japanese corporation impleaded a Taiwan corporation who challenged jurisdiction
when the original suit by an American plaintiff was settled
(b) Supreme Court ruled that there was no jurisdictionapplied two-part analysis:
(i) Power Branchsplit on minimum contacts and stream of commerce
(a) Justice OConnor
(i) Mere act of defendant placing product into the stream of
commerce is not enough to make purposeful availment
(ii) Need more to be a purposefully directed act to the forum state
(iii) Additional conduct might indicate an intent to sell the product in
the state
(iv) Defendants awareness that stream of commerce will bring
product into state will not convert the act into an act purposefully
directed to the forum state
(v) Defendant must intend to serve the market (e.g., designing
product for forum states market, advertising, establishing
channels for providing advice for consumers in forum state,
marketing through distributors)
(b) Justice Brennan
(i) Asahi purposely availed itself
(ii) As long as party is aware that the final product is marketed in the
forum state, defendant has purposely availed himself
(iii) Most courtsjurisdiction based upon placement of a product in a
stream of commerce is enough to establish power branch
(c) Stream of Commerce question left unresolved
(ii) Convenience Branch (Eight justices agreed)
(a) Unreasonable to assert jurisdiction
(b) Must consider
(i) Defendantthere are unique burdens on one who must defend
oneself in a foreign legal system (defendant would have to come
all the way from California and be forced to submit to another
countries laws)
(ii) Plaintiffvery slight interest, his claim has already been
adjudicated
(iii) Stateno California citizens were left in suit
(iv) Interstate judicial system--? ? ?
(v) Advancement of Substantive policies of the several states
(c) Court analyzed the shared interests of the several states in furthering
substantive social policies:
(i) Procedural and substantive policies must be considered
(ii) When it is an interstate adjudication procedural and substantive
policies of other states must be considered
(iii) Must take great care when other nations are involved
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(c) The Convenience Branch can overpower the Power Branch
(d) The Supreme Court has never left an American plaintiff without a place to sue a
defendant in a local forum
(5) Transient Jurisdiction Re-visited (Burnham v. Superior Court, Supreme Court1990)
(a) Wife moved to California with the kids and sued the husband for divorce
(b) Husband went to California on business, took child to San Francisco, served while in
California
(c) Shaffer had called jurisdiction into doubt when there is not enough minimum contacts
defendant argued that International Shoe and its progeny should be used, and that
since his contacts with the state were not continuous and systematic that he could not be
sued here on a claim that did not arise from any activities in the state
(d) Supreme Court upheld Transient Jurisdiction
(i) Justice Scalia plurality opinion (writing for 3 judges)
(a) Traditional form of jurisdiction
(i) Have jurisdiction over person who is physically present in the
state even non-residents
(ii) In-state personal service has always been recognized as sufficient
to confer person jurisdiction even if the claim is unrelated to the
activity
(b) Jurisdiction on physical presence alone meets due process standards
because it is a continuing tradition of the legal system that defines
traditional fair play and justice
(c) Nothing in International Shoe that supports that a Ds presence in the
state does not support jurisdiction
(d) Said Shaffer was referring to quasi in rem jurisdiction this type of
jurisdiction has to satisfy the requirements of International Shoe.
(e) Validity of in-state service to establish jurisdiction is established by its
pedigree relying on the phrase traditional notions of fairplay
(i) Focused upon traditional notions of fair play and substantial
justice
(ii) Jurisdiction by in-state service is established because it is firmly
approved by tradition and still observed and still favored
(iii) Court cannot find a widely followed traditional practice for
jurisdiction to be violative of due process it cant be
unconstitutional because its the widely followed tradition that is
generally observed
(f) Emphasis on pedigree is improper because it would have justified quasi
in rem as well
(ii) Justice Brennan (disagrees with Scalia writing for four justices)
(a) Shaffer says that all rules of jurisdiction even ancient ones, must
satisfy contemporaneous notions of due process. The fact that the SC in
Shaffer was willing to reexamine the constitutionality of quasi in rem
jurisdiction showed that the court did not agree that the pedigree was not
dispositive. Liberal justice that applies contemporary ideas of due
process
(b) Evaluation: Transient jurisdiction upheld by International Shoe and its
progeny
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(i) Defendant got benefits of California law by visiting California
health and safety protected, fruits of the economy, free to travel on
state roads
(ii) Justice Scaliathat three days worth of benefits is inadequate for
California to get possession of his life belongings
(iii) Justice Brennancentury-old practice of transient jurisdiction
should give reasonable notice of jurisdiction. Should create
reasonable expectations supporting jurisdiction so the D had clear
notice that he was subject to suit if he was personally served in the
state
(iv) Transient jurisdiction provides symmetrynonresident can sue
resident and resident can sue nonresident
(6) Jurisdictional Reach of District Courts [Rule 4]
(a) Rule 4(f)limits the service of process to defendants found in the territory of the state
of the district court
(b) Three exceptions to the limit:
(i) Congress in some cases authorizes nation- or world-wide service of process
(ii) Rule 4(e)authorizes federal courts to use forum state statutes for servicing
process outside of the state (long-arm statutes)
(iii) Rule 4(f)serve outside forum state but within 100 miles of the claims action
if necessary to add a 3rd party under Rules 14 or 19
4. VENUE, TRANSFER OF VENUE AND FORUM NON CONVENIENS
a) 28 U.S.C. 1391, Venue requirements also limit the places where lawsuits can be brought.
(1) Venue is a personal privilege of the DEFENDANT only the D as to whom venue is improper,
can raise the point
(2) A defect in venue can be waived if it is not asserted in a timely fashion
(3) A defect in venue does not render a judgment invalid and subject to collateral attack
(4) When a plaintiff brings an action they waive in advance any venue objections to counter
claims
(5) Question 4, p. 234 (a) District court of Vermont, or Western District of NY
(6) Jurisdiction is founded upon diversity may be brought only in
(a) A judicial district where any defendant resides, if all defendants reside in the same state
(b) A judicial district in which a substantial part of the events or omissions giving rise to
the claim occurred, or a substantial part of property that is the subject of the action is
situated
(c) A judicial district in which any defendant is subject to personal jurisdiction at the time
the action is commenced, if there is no district in which the action may otherwise be
brought
(7) Jurisdiction is not founded solely upon diversity may be brought only in
(a) A judicial district where any defendant resides, if all defendants reside in the same state
(b) A judicial district in which a substantial part of the events or omissions giving rise to
the claim occurred, or a substantial part of property that is the subject of the action is
situated
(c) Same effect as 1391(a)(3)
(8) Corporations 1391(c)
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(a) Shall be deemed to reside in any judicial district in which it is subject to personal
jurisdiction at the time the action is commenced
(b) In a state which has more than one districtdistrict can only assume jurisdiction where
the defendant would have sufficient contacts in that jurisdiction
(9) Aliens can be sued in any district
1. Forum non conveniens is a discretionary action that court can choose to not hear the case despite the
fact that it is a proper venue and jurisdiction when there is another more convenient court. Often a court
will impose conditions before they dismiss. (Such as waiver of SoL, consent to J, and etc.)
(1) Bad conditions
(a) Limiting discovery to only 1 party, due process concerns, etc.
(2) Common law doctrine
(3) Differs from transfer of venue
(a) transfer is appropriate when practical factors suggest another more convenient forum
and that forum is within the same judicial system.
(b) Forum non conveniens permits dismissal of a case over which a court has
jurisdiction and venue on the ground that practical factors indicate that is should be
heard in another court and that court is outside the same judicial system
(4) To obtain dismissal on forum non conveniens, two requirements:
(a) There must be an adequate alternative forum available for the case
(b) There must be a showing that interest of convenience to the parties and certain public
interests argue in favor of the alternative forum notwithstanding plaintiffs choice of the
current forum.
a) Factors Gulf Oil Corp v. Gilbert P cant choose an inconvenient forum to harass D
(1) Have to show:
(a) Adequate alternate forum. If no forum exists, cant invoke forum non conveniens
(i) Unfavorable Law
(ii) Bar to Relief -
(b) Public and Private Interests
(i) Private convenience factors that affect the convenience of the litigants
(a) Relative ease of access and sources of proof
(b) Availability of compulsory process
(c) Possibility of a view of the premises if a view would be appropriate
(d) Enforceability of a judgment
(e) All other practical problems that make a trial easy, efficient, etc.
(ii) Public interests factors that affect the interest of the forums
(a) Court congestion
(b) Unfairness of burdening citizens of jury duty when the community has
no relation to litigation
(c) Where cases affect the interests of many people. A reason to try the case
in a remote location.
(d) Local interests in having local controversies decided at home
(e) Interests in having a trial in a diversity case. In a home where the law is
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going to govern the action. (at home with the law)
(f) Avoidance of unnecessary problems and conflicts of law or the
application of the forum law.
(2) Unless the balance is struck strongly in favor of the D there is a preference for the Ps choice
of forum
b) Piper Aircraft Co. v. Reyno (p. 645) Ct will not dismiss based on unfavorable change in law for P
alone
(a) Facts: Plane crash in Scotland. Several Scottish citizens killed in the accident, estates of
the people killed bringing wrongful death actions against D. Alternative forums are
California and Scotland. Plan was manufactured in Pennsylvania and Hartzell made
propellers in Ohio. Owner of plane was British. Operator was Scottish and wreckage
was in England. Reyno was the executrix and legal secretary to file the lawsuit. Brought
the actions in California. Surivors brought separate actions in UK. Reyno admits they
were filed in U.S. because of U.S. law.
(i) D moved to dismiss based on forum non conveniens because there was an
alternative forum California
(ii) Survivors brought separate actions in the UK
(b) Rule of law: Possibility of unfavorable change in law should not, by itself, bar
dismissal
(i) Just because Scottish law doesnt recognize strict liability, gives less in damages,
etc doesnt mean that it should be held in U.S. courts. Unfavorable change in
law for the P will not prevent dismissal from courts.
(c) Reyno admits that the action against Hartzel was filed in U.S. because of favorable law

(i) Why is this case in the U.S.?
(a) b/c Scottish law doesnt recognize strict liability in tort
(i) Dont need to prove negligence with strict liability
(ii) Easier theory to win under
(b) Ps are basically forum shopping exactly what courts should
discourage. This is an example of forum shopping (trying to get the most
favorable law)
(d) When piper moved to transfer case to Penn.
(i) Thats where they made the plane - Piper is based in Penn. (reason to transfer
from Cal. to Penn.)
(ii) Pipers records and witnesses are in Penn. and
(iii) No significant interest to keep case in CA no witnesses
(e) Piper transferred under 1404(a) [CA venue was proper then and there was personal
jurisdiction in CA], but Hartzell moved to dismiss
(i) To Hartzell CA did not have personal jurisdiction over it
(ii) Piper transferred on basis of 1404(a) because it was proper venue and proper
jurisdiction
(iii) Hartzell ended up transferring under 1406(a) b/c there was no personal
jurisdiction over Hartzell
(f) What law applies to claims against Piper?
(i) based on Van Dusen they use Cal. choice of law rules (transferor), thus Penn.

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law would apply against Piper based on Cal. choice of law rules
(ii) DC said that these rules would lead to the application of PA law against Piper
(iii) 1404(a) law
(g) What law applies against Hartzell (propeller manufacturer from Ohio)?
(i) also based on Van Dusen, use transferee (the court youve transferred the case
to) law thus PA choice of law rules applies (which say that Scottish law should
be used)
(ii) 1406(a) law
(h) Had Cal. court dismissed the claim entirely, the P would have to re-file elsewhere and
lost the advantages of Cal. choice of law rules diff between transfer and forum non
conveniens significant in terms of choice of law
(i) Mightve ended up applying Scottish law to Piper
(i) Factors that bear on ct. decision on ground of forum non-conveniens (case that
should not even be in U.S. district court granted the motion)
(i) S.C. interprets 3rd circ- Dismissal is never allowed that will result in a change of
law that is not favorable to the P (3d Cir. said this) Supr. Ct. says that, contrary
to 3rd circ, choice of law considerations should usually be irrelevant, but where
remedy provided by the alternative forum is so clearly inadequate that it is no
remedy at all, the unfavorable change in law may be given substantial weight
(ii) Court cites Phoenix case (footnote 22, p.652) refused to dismiss under forum
non conveniens where alternate forum was Ecuador because unclear if Ecuador
would hear the case there.
(iii) Alternative forum here Scotland
(a) argument against moving case to Scotland (if the remedies afforded there
were inadequate); arguments against Scotland as an alternative forum
(i) there is no strict liability, no jury trial, no contingent attorneys
fees, smaller damages awards, and may have a different sense of
justice/fairness or due process (dont help out P enough) these
might suggest that this is not an adequate alternative forum
(ii) court rejects above bc Scotland is a common law country and
there is no danger they will be treated unfairly in those courts and
remedy would be sufficient
(iv) Court rejects the notion that Scotland will be an inadequate forum. Even though
they might not be able to rely on a strict liability theory, there is no danger that
they will be deprived of any remedy or treated unfairly
(v) What if the only theory on which they could recover wouldve been a
products liability theory which Scotland doesnt recognize? That might
support a strong argument NOT to dismiss the case
(vi) Courts concern is over foreigners taking advantage of American law
(vii) Another consideration is that American judge isnt familiar with Scottish law, so
it makes more sense to send the whole case to Scotland and let them hear it
(a) Scotland has a strong local interest it should have the local controversy
tried at home
(b) American interest isnt sufficient here
(viii) private interests factors (similar to convenience factors witnesses)
(a) Pipers witnesses and documents are in U.S.

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(i) Plane manufacturers
(b) Plaintiffs witnesses/documents are in Scotland
(i) easier for Pipers witnesses to go to Scotland than for Ps
witnesses to come to U.S.
(ix) Public interest factors 1404(a)
(a) Choice of law issue evoked to support moving it
(b) dont want to apply penn. law to Piper and Scottish law to Hartzell
(i) Penn law too confusing, Judge not familiar with Scottish law. Best
to send to Scotland and have uniform law applied to both. Make
litigation more manageable
(ii) Scotland has strong interest in litigation because accident
occurred there and the people who died were Scottish. Local
interest in having local controversies decided at home
(iii) American interest is not sufficient to justifiy commital judicial
time and resources
(x) Presumption of plaintiffs choice of forum is applied with less force when the
parties are foreign
(xi) Note that the courts may dismiss a case and then require a D to make certain
concessions to the P in connection with litigation elsewhere.
i. For example, requiring stipulations waiving statutes of limitations or
venue before dismissing on forum non-conveniens grounds
ii. Will create conditions before dismissing a case on forum non-
conveniens
iii. See Question 71, p. 655 In re Union Carbide Corp. for example of
limitations
(xii) Good example of forum shopping attorneys seeking to obtain favorable law
(xiii) Court afraid of foreigners taking advantage of favorable American law courts
flooding
(xiv) Due process clause limits the power of courts
(xv) Another requirement imposed by the due process clause the requirement that
the parties be given reasonable notice of the SUIT and an opportunity to be
heard. An additional constitutional requirement for the validity of a judgment

5. Transfer of Venue
(1) Permits transfer to a more convenient forum even though venue is proper
(2) Norwood v. Kirkpatrick says that it allows an easier showing of convenience that when the
standard was to dismiss. The factors are still from Gulf Oil, but the courts discretion is wider.
1404(a) permits transfer on a lesser showing of inconvenience
(3) After 1404(a) plaintiff can take advantage of transfer of cases as opposed to when there was
only dismissal
(a) Reasons
(i) Amend the complaint with new defendants upon which the venue would not be
proper
(4) If the more convenient forum is another federal court the case can be transferred with no
reason to dismiss. It is only when the more convenient forum is another country will a case be
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dismissed on the grounds of non conveniens
(5) 1404(a) and 1406(a) transfers
(a) For the convenience of parties and witnesses and in the interest of justice a district court
might transfer a civil action to another district where it might have been brought
(changed remedy from dismissal to a transfer of the action to a more convenient forum)
(b) What does the statutory language mean when it says, where it might have been
brought?
(c) Where it might have been brought
(i) Hoffman v. Blaski
(a) Suit for patent infringement in Texas and P wanted to transfer to Illinois.
(b) Venue would not be proper in IL
(c) Since defendants were willing to waive venue and personal J objections,
was Illinois a district in which an action might have been brought? No
the willingness to waive is irrelevant. Might have been brought is not
read as might have been brought with Ps consent
(d) Personal jurisdiction and venue wouldve been satisfied as to all the
defendants without regard to consent of the defendants
(e) Restricts the transferee forum under 1404(a) to those in which personal
jurisdiction and venue would have been satisfied with respect to all Ds
without regard to the consent of the Ds. -
(ii) Van Dusen v. Barrack
(a) Suit in Penn. District court for wrongful death from air crash in Boston,
take off from Philadelphia. Defendants moved to have case moved to
Mass. Dist. Court. and won. Court of appeals overturned
(b) Plaintiffs were not qualified to bring the case in Mass. Dist. Court and
thus Mass. Dist. Court was not a court in which the action could have
been brought because the P were not qualified to initiate the action in
Mass.
(c) Supreme Court reversed holding that mightve been brought must be
construed with reference to federal law dealing with venue and
Jurisdiction, limit J without regard to state law concerning the capacity of
fiduciaries to sue
(i) Reference to federal law, not going to look at state law
(d) Another issue: What was the applicable choice of law on the transfer
since there was a substantive difference in law (Mass. was not favorable
as Penn.)
(i) S.C. held that transferee court is required to apply the state law
that would have been applied had there been no change of venue
(ii) Sec 1404(a) should not be used to defeat the advantage of a
plaintiff that has chosen a proper court (for example: a more
favorable law)
(e) What about when a plaintiff wants to transfer? Ferens v. John Deere Co.
p. 642
(i) P (from PA) lost hand in a harvester manufactured by the D (DE
corporation)
(ii) D principal place of business in IL, but does business
everywhere
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(iii) Sued in W.D.Penn. then moved to S.D.Miss. (which would
lengthen SoL) where negligence and product liability SoL
limitations are higher (6 years)
(iv) P moves to transfer the second case to PA under 1404(a) motion
granted
(v) Transferee court applied PA Statute of limitations, and court of
appeals affirmed
(vi) US SC reversed saying that transferor law applies regardless of
who moves to transfers under 1404(a)
(vii) Transferor law applies regardless of who moves to transfer under
1404 (a) they wont deprive the of the benefit of the choice of
state law from transfer.
(d) 28 U.S.C. 1404 An action may be transferred to an alternate venue within the federal
system
(i) Cases where the venue was proper to begin with.
(ii) Either party may seek a transfer and such can be granted by the court for the
convenience or parties and witnesses and in the interest of justice
(iii) Transfers can ONLY BE MADE to the districts where the case couldve been
brought originally regardless of whether the defendant now consents to suit in an
alternate forum.
(e) 28 U.S.C. 1406 Court has the authority to either dismiss or transfer the case to a
district with proper venue if the court deems that such a transfer to be in the interest of
justice
(i) 1406(a): Courts can transfer a case when venue is improper.
(a) District court can dismiss and transfer the case to any district that it
couldve been brought. Where original district venue is improper
(b) Should be distinguished from 1404(a) because 1404(a) presupposes that
venue in the district of commencement is proper
(ii) Rule 12(b)(3) Defendant can move for dismissal of the action if the venue is
improper
(iii) Golbar v. Herman deals with 1406(a) p. 643
(a) Treble damages action antitrust E.D.Penn. Dist. Court lacked J and
transferred the case to S.D.N.Y. by which time the SoL ran and S.D.N.Y.
dismissed.
(b) District court lacked personal jurisdiction and there was improper venue
so transfer to Southern district of NY
(c) By the time SOL had run out
(d) NY federal court dismissed on grounds that Penn court lacked personal
jurisdiction
(e) S.C. reversed said language of 1406(a) is broad enough to transfer cases
however wrong and doesnt matter if court had personal jurisdiction.
(f) 1406 is broad enough to transfer a case no matter how improper
(iv) Martin v. Stokes
(a) Virginia P filed a suit against KY defendants for injuries in an automobile
accident in the Western District of VA
(b) Diversity action against Ken. And Cal. Defendants and sue for injuries in
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a car crash
(c) Defendants move to quash service and the court refused but transferred to
W.D.Ken. who dismissed based on Ken. 1 year SoL.
(d) Transferee court granted motion to dismiss based on KY 1 year SoL even
though tranferor court wouldve applied Virginias 2 yr SOL. Plaintiff
Appealed
(i) Ct of Appeals ruled that in state law questions, transferor state law
applies in a 1404(a) transfer. 1404(a) Operates only when
transferor court is a proper forum (in personal jurisdiction and
venue are both proper under this)
(ii) Transferee applies in a 1406(a) transfer law applies to places
cases transfer to where transferor court is an improper forum.
(iii) In order to determine which one (1404 or 1406) the court
remanded back to western district of KY so that they can figure
out whether the transferor court had personal jurisdiction.
(e) 1406(a) applies the transferee law 1404(a) applies transferor law. The ct.
app. remanded to determine whether transferor court had J which would
determine 1404 or 1406
(v) Refer to Piper case (above)
(vi) Due process in India (??)

III.Notice before seizing property p.665


1. Remedies
a) Party cannot get relief until after trial but there are some remedies (like prejudgment seizure of
property to insure that it will be available to satisfy the judgment) that will be before the trial
b) Seizure requires some kind of hearing before seizure.Sniadach case:
(1) Facts: Sniadach employee withheld 50% income pending the outcome of a trial and paid
employee the other half.
(a) Wisconsin statute provided for:
(i) Court clerk summons garnishment at request of plaintiff, who by serving the
garnishee can freeze wages.
(ii) Defendant has to be served with summons of complaint within 10 days of
service of garnishee. d
(iii) If defendant wins main suit on the merits the wages are restored, but in the
meantime the defendant is deprived of the wages until the end of trial.
(2) D moved to dismiss but court denied it.
(3) D appealed as violation of due process, court ignored. S.C. reversed.
(a) S.C. focused on the tremendous hardship that seizure of this special type of property
(wages) would have on behalf of the employee
(b) THE RULE: Needed an opportunity to be heard BEFORE the garnishment (to satisfy
Due Process)
(c) What is the tremendous hardship? Wages allow you to survive, also the fact that
garnishment used to cause people to lose their jobs.
2. Mennonite when there are other substantial interests in the outcome (mortagage, etc.) the other parties
must be sent notice as well.

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3. Fuentes v. Shevin
a) FACTS
(1) P purchased stove and stereo under conditional sales K that provided for monthly payments
and repossession by seller in case of default in pmt. by buyer
(2) Seller retained a UCC security interest in goods pending full payment, but buyer was entitled
to possession absent default
(3) a year later, after a dispute over servicing the stove, P still owed $200 (of the approx. $600
total)
(4) seller brought action for repossession, and obtained writ of replevin ordering state agents to
seize stove and stereo
(5) Florida statute provides for summary issuance of writ of replevin upon ex parte application to
ct. clerk by someone suing on claim to possession of any wrongfully detained property and
upon the Ps posting of a bond for double the value of the property. No requirement that the
applicant make a convincing showing before seizure that the goods are wrongfully detained.
Just a conclusory assertion that he is lawfully entitled to the possession of the property.
(a) property is held for 3 days by the agent who makes the seizure, during which time D
may regain possession of the property upon posting his own bond for double the
propertys value
(b) if D does not act, the property then passes to P, pending the final disposition of the
underlying repossession action (trial)
(6) P sued in fed. court shortly after the seizure, on procedural due process grounds based on the
FL statute, and he lost
(7) Supr. Ct. held that the Florida procedure violated the 14th Am. by failure to provide notice and
opportunity to be heard before deprivation of a possessory interest in property
(a) Purpose of the right to be heard requirement is to minimize substantially unfair or
mistaken deprivations of property. If it is to serve its purpose, it has to be granted in a
time when the deprivation can still be prevented.
(b) FL statute flies in the face of this principle. Doesnt provide for a hearing to rule on
the deprivation of property. A prior hearing is the only true safeguard against the
arbitrary deprivation of property.
(c) PROBLEM HERE: lack of pre-seizure hearing
(d) Ct. idea is that competing presentations at the pre-seizure hearing is the best way
to ensure accuracy and prevent mistaken deprivations of property
(8) If accuracy is the goal, then why is the adversary proceeding the only way?
(a) Is there any reason to believe that creditors would not be expected to seek these
remedies without good grounds?
(9) How meaningful is a pre-procedure hearing that deals with seizure for people that dont have
lawyers?
(10) Why not require the judge to evaluate the claim?
(11) Court says that a hearing is required except in extraordinary situations. Recognizes that
other cases have allowed postponing notice before a hearing:
(a) when the seizure is absolutely necessary to secure governmental or public interest
(b) special need for prompt action
(c) person initiating seizure is a government official
(12) However, seizure prior to hearing might be allowable where creditor can make a showing that
other party (debtor) may destroy or conceal disputed goods, etc. the evidence (property)
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(13) Some argued that this case threatened to that Due Process would run amuck
(14) Why should creditors care about these hearings? Because the Ds probably wont even show
up to the hearing
(a) Efficiency?
(i) The constitution recognizes higher values than efficiency in trying to protect a
vulnerable citizen
(b) Concerned with Cost?
(i) Prior hearing poses some cost the constitution recognizes higher values than
efficiency in order to protect a vulnerable citizen
(ii) Does the issue of cost merit more consideration?
(iii) Increased procedures that are required to bring about the desired result, and are
these increased procedures worth the extra cost that will be brought about. Do
the costs outweigh the value that is increased by accuracy?
(iv) Creditors might increase their prices to offset these procedures; creditors might
also use self-help to bring about their desired results
(a) which would not be subject to due process limitations under
constitutional law
(b) due process only protects against state action
(v) The reason is to protect people
4. Mitchell v. W.T. Grant Co. p. 667 (2 years after Fuentes)
(1) FACTS
(a) D sold appliances to P under installment sales contracts
(b) D sued a year later for overdue and unpaid balance P had paid less than a quarter of
his total principal obligation
(c) D alleged having a vendors lien on the goods securing unpaid balance, that would
expire under state law if P transferred possession
(d) D then obtained writ of sequestration and had state agents arrest P and seize the goods
(e) P moved to dissolve the writ of sequestration for failure to provide procedural due
process and submitted the affadavit of its credit manager that attested to the debt of
Mitchell and had the reason to believe that Mitchell would dispose of the property
(i) D may immediately seek dissolution of the writ of a post-seizure hearing that
must be ordred unless the P proved the grounds on which the writ was issued
(ii) D could regain possession by posting his own bond for 125% of the value of the
claim
(2) La. ct. approved the sequestration procedure (held it was constitutional)
(3) S.C. affirmed there was NO violation of due process here - (joining the dissenters from
Fuentes) saying due process clause doesnt guarantee petitioner the use and possession of the
goods until all issues in the case were judicially resolved after full adversary proceedings had
been completed
(4) White (majority) says that Fuentes is not overruled, but merely distinguished from this
case
(a) La. statute is procedurally different than the statute in Fuentes (they dont require a pre-
deprivation hearing). These differences ensure accuracy and prevent deprivation of
property short of requiring a pre-deprivation hearing
(b) What are the differences in the LA process?
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(i) Requires more than a bare conclusory claims
(ii) Ct. here requires a judge to decide on whether or not to issue the writ (Fuentes
was the court clerk). The Judge has legal training.
(iii) The SC is substituting judicial scrutiny for an adversarial presentation
(iv) La. procedure requires more than a bare conclusory claim (specificity is
important to give the judge something to consider in deciding whether to grant
the writ of sequestration)
(a) Fuentes specificity was minimal
(b) Requiring specifics can winnow out some claims Rule 9(b)
(c) How much specificity can you expect? And about what? Should the P be
required to identify specifics about the debtors possible defenses?
(v) standard to be applied in La. is more precise than the broad law standard in
Florida
(a) in La. you could get a writ for claiming ownership
(b) Fla. you could get a writ if the property was wrongfully obtained
(vi) LA debtor may demand a prompt post-seizure hearing in which P has the burden
of proving grounds for the issuance of the writ.
(5) Powell (concurring) says that Mitchell substantially overrules Fuentes
(a) Fuentes is overruled b/c Mitchell says you dont even need advanced notice of a
hearing
(b) 2 prongs of Fuentes extraordinary situation analysis are not satisfied in Mitchell
(WHAT ARE THE 2 PRONGS?) (1) seizure necessary to secure an important public
interest (2) initiation of proceeding by a government official
(c) Seems like the seizure would not have been justified under Fuentes
(d) How did they reach such an inconsistent result?
(6) Stewart (dissent) said that Mitchell unmistakably overruled the decision of the court that was
barely 2 years old and they did it without pointing out any change in societal perceptions or
constitutional standards against stare decisis that might justify the disregard of this
(a) There was a shifting personnel on the court (addition of Rehnquist and Powell)
(b) Despite all of this, Justice Whites opinion goes to say that Fuentes is not overruled and
they just distinguish it
5. North Georgia Finishing, Inc. v. Di-Chem
a) FACTS
(1) Di-Chem sued N. Ga. for goods sold and delivered, simultaneously obtaining process for
garnishing Ds bank account from clerk after P filed affidavit asserting the debt and that he had
reason to garnish the bank account
(a) Plaintiff or attorney had to
(i) Make an affidavit before some officer or some clerk of any court in which said
garnishment is being filed
(a) Stating the amount claimed to be due
(b) P has Reason to apprehend the loss unless garnishment is issued
(c) P must file a bond double the amount sworn to be due
(d) D can dissolve the garnishment by filing a bond

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(2) after service of process D filed bond to dissolve garnishment and moved to dismiss
garnishment proceedings and discharge its bond (arguing violation of procedural due process
for failure to provide notice and hearing in connection with issue dealing with garnishment)
b) Decision of Ga. Supr. Ct. approved the garnishment and denied Ds motion
c) S.C. reverses says that the GA statute violates due process
(1) Ga. ct. failed to apply Fuentes required a hearing and other safeguards against mistaken
repossession
(2) Ga. statute was vulnerable for the same reasons in Fuentes: see below
Bank account was garnished by issuance of court clerk (2without notice to D for an early
hearing, or 3participation of judicial officer)
Mitchell case didnt save procedure statute didnt require that judge issue writ, and affidavit
didnt go beyond conclusory assertions and didnt set out specific facts
(3) Ct. relied in part on Fuentes. Does this court insist that there be an opportunity for a pre-
seizure hearing? NO Fuentes means you have to provide an opportunity for a hearing or
some other safeguard against mistaken repossession
(4) Would Ga. statute have been acceptable if it provided for an immediate post-seizure hearing as
did the LA statute in Mitchell?
(a) Probably not b/c Mitchell seemed to require the additional safeguards against mistaken
repossession (posting bond, etc?????)
6. Connecticut v. Doehr
a) P sued D for battery and assault and seeks to attach the Ds house (to ensure that D had enough assets
to pay for Ps recovery)
(1) Suit did not involve the real estate and had no preexisting interest in Doehrs home
(2) S.C. said Connecticut statute violates due processprobable cause to sustain the validity of
the Ps claim;
(a) Due process is not a concept unrelated to place and context. It is not a technical
conception
b) Whats the rule now for pre-judgment proceedings that the court sets out? (whats the test?)
(1) 3 prong balancing test for pre-judgment seizure due process is not a technical
conception with a fixed content unrelated to time, place and circumstances
(a) Consideration of the private interest that will be affected by the prejudgment measure.
(b) Examination of the risk of an erroneous deprivation through procedures under attack
and probable value of additional / alternative safeguards
(c) Principal attention to interest of the party seeking the prejudgment remedy with due
regard to any ancillary interest the government may have in providing the procedure or
foregoing the additional burden of providing greater protections
c) Applied in this case
(1) Private Interests (what private interests are affected here) - Attachment clouds the title to
the house, impairs the ability to sell the house, and prevents loans. The house is at stake, its
what theyre trying to attach. The property interest is significant.
(a) Although this is a partial impairment it is still subject to due process just like a full
deprivation. Not a complete deprivation of property (hes still residing in the house) but
partial impairments are also subject to due process
(2) Evaluate the risk of erroneous deprivation of property - The risk of erroneous deprivation
is substantial. The underlying transaction in this dispute was an assault but theres only a
skeletal affidavit that had to be filed. The judge couldnt make a realistic assessment of the
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likelihood of the actions success based on this one side of the facts. The affidavit only gives
the Ps version of what happened. Fairly complicated case that doesnt lend itself to
documentary proof = likelihood of error.
(a) Safeguards that State provides dont adequately reduce the risk.
(i) The state provides expeditious post attachment adversary hearing and judicial
review in double damages acts if the original suit is commenced without
probable cause
(ii) This was ok in Mitchell, but distinguished here b/c in Mitchell it involved
uncomplicated matters that lent themselves to documentary proof, the risk of
error was minimal then, AND the P was required to post a bond and had a
vendors lien to protect (none of that presence here)
(3) Interest in favor of ex parte attachment particular the interests of the P
(a) Ps interest no legal interest other than the mere fact of attachment. Too minimal
because he had no preexisting interest in the Ds real-estate.
(i) no allegation that D would transfer or encumber the real estate (to prevent P
from reaching this property)
(ii) thus no exigent circumstances that would justify postponing this hearing until
after the attachment
(b) Govt interest minimal b/c states only interest is protecting the Ps rights (and they
were minimal here). No interest that the government has affects the analysis
(c) Ps interest here is minimal.
(4) Does the CN statute violate due process? Yes. Due process is not a technical conception with a
Does the possibility of waiver of notice and opportunity to be heard, does it undermine elaborate constitutional
protection? Overmeyer v. Frick p. 679
7. Possibility of waiver of notice Overmyer Co. v. Frick
a) FACTS:
(1) Warehousing company Ks. And the company defaults on payments. After renegotiation work
was resumed and Overmyer was satisfied, but asked for more time to pay installment
payments. New K with
(a) New K had cognovits - consent to obtaining a judgment without hearing
(b) Both parties were corporate parties represented by counsel
(c) Later P ceased to make payments claiming breach of contract due process required
notice and a hearing
b) ISSUE: Can D waive in advance the constitutional right to notice and opportunity to be heard?
(a) Yes. Just like people can waive 5th amendment rights if they are done voluntary,
intentionally, knowingly, and intelligently made in criminal cases
(i) Here they did intelligently and intentionally waive the right.
(ii) Standard: voluntarily, knowingly and intelligently made, OR intentionally
abandoning a known right
(iii) Criminal standard is satisfied here
(iv) The case may have been different if this was a contract of adhesion, where there
is great disparity of bargaining power, and where the debtor receives nothing for
the cognovits provision
(v) This case involved commercial properties, represented by counsel, and the
provision serves a useful purpose in the commercial world

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c) APPLICATION:
(1) How as an attorney for the seller would you draft a K to get the cognovits term to apply? Make
sure there
(a) Consideration
(b) Make it clear with notice all caps, easy to see
(c) Make it known that the waiver is voluntary
(d) Discuss negotiation
(2) How would you argue it was unconstitutional as attorney to the buyer
(a) Too fundamental to be waived the right to notice and opportunity to be heard
(b) Point out that theres no consideration nothing given in return for the provision
(c) Try to argue that it wasnt a knowing waiver
(d) Try to show that there was unequal bargaining power in reaching that agreement

IV. Contours of Litigation


A. Former Adjudication p. 686
1. GENERAL OBSERVATIONS
a) Res Judicata (Claim Preclusion) - putting an end to litigation
(1) Sometimes used to refer to all types of preclusion doctrines, which is not correct. It refers to
the prohibition on relitigating a claim that has already gone to judgment
(2) Sometimes claim preclusion is used to refer to res judicata
(3) Federal Rules dont provide for res judicata
(4) Giving finality to judgments is one of the purposes of civil procedure
(5) Res judicata is often used incorrectly to mean all forms of preclusionin fact, only refers to
the prohibition of re-litigating a claim which has already gone to judgment
(6) Two main ideas of the doctrine of claim preclusion merger and bar:
(a) Merger
(i) Plaintiff has already obtained final judgment in his favor
(ii) Above claim is extinguished and merged into the judgment
(iii) P cannot re-litigate in second action
(b) Bar
(i) Plaintiff suffers judgment against her
(ii) Claim is also extinguished
(iii) Barred by the judgment from re-litigating the same claim in second action
(c) The Merger and Bar are only applied when the second action is based on the same
claim
(d) Defendant has to plead claim preclusion as a defense to the second action.
(e) Claim preclusion bars litigation on grounds that might have been presented in the first
action but werent
b) Collateral Estoppel (Issue Preclusion) different type of exclusion doctrine

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(1) Applicable in situations that are not covered by res judicata or claim preclusion because the
second action is not based upon the same claim as the original action
(2) Forecloses re-litigation of issues that were actually litigated which means they were contested
by the parties and submitted to the court for determination and that were essential to the first
judgment
(a) Contested by the parties and submitted to the court for determination
(b) Were essential to the first judgment
(3) Important difference between claim preclusion and collateral estoppel (issue preclusion)
(a) Claim preclusionprecludes re-litigation of a claim without regard to what issues were
litigated in the first action
(b) Collateral Estoppal (Issue preclusion)only precludes the re-litigation of issues that
were actually litigated and necessarily determined in the first suit
Ex: P sues D for personal injury, after verdict in Ps favor, P brings suit for property
damage from the same accident. D pleads claim preclusion. In the second action, claim
preclusion bars litigation of every ground of recovery actually presented in the action
namely, personal injury, but also grounds that might have been presented but were not
presented in the first action (e.g. property damage)
c) Final Judgments
(1) Doctrines of claim and issue preclusion only apply to final judgments
(2) So what is a final judgment?
(a) Claim preclusiona final judgment is one that terminates litigation on the merits and
leaves nothing to be done but enforce the judgment
(b) Issue preclusionless strict in finding finality, decided after adequate hearing and full
deliberation, discretion of second court if it is controlling. If an issue was decided after
an adequate hearing and full deliberations, then a second court has the discretion to give
the decision preclusive effect.
(3) PAGE 690, QUESTION 1: See Notes on the page
(4) A judgment is not deprived of finality for res judicata purposes just because
(a) There is still time to file a motion in the trial court for a new trial or
(b) That such a motion has already been filed or
(c) That an appeal has been taken
(5) If a judgment in the first action is overturned plaintiff can still get relief from a second
judgment based upon it by appropriate proceedings [Rule 60(b)(5)]
2. CLAIM PRECLUSION
a) Dimensions of a Claim
(1) Claim preclusion prohibits the re-litigation of a claim must ask: When are claims identical?
What is the identity of a claim? Prohibits repetitive litigation of the same claim
(2) Key requirement: The identity of the claim. When are claims identical?
(3) Williamson v. Columbia Gas & Electric Corp. p. 692
(a) 1st ActionPlaintiff alleged defendant and others conspired, Sherman Act (conspiracy),
violation of anti-trust laws, a Sherman Act violation
(b) 2nd ActionPlaintiff sued defendant on Clayton Act violations, not conspiracy (alleged
defendant acted alone). Brought in the US District of Delaware the same court as the
first action

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(c) Actions were pending in the same court at the same time based upon same actions of
the defendant (trying to take over plaintiffs business) both of the claims were based
on the same actions of the D, that the D was trying to take over and buy out the stock of
the plaintiff
(d) Lost in 2nd action due to stipulation and statute of limitations; court dismissed the
complaint ended first.
(e) Defendant then moved for summary judgment on the 1st action claiming res judicata or
claim preclusion. D won, P appealed
(f) Issue: Was the first action barred by claim preclusion? YES
(g) Procedural issues
(i) Court notes that it is irrelevant which action was started first for purposes of res
judicata
(ii) Doesnt matter if 2nd case was decided on a stipulation and on the ground that
the second case was dismissed because it was barred by the statute of
limitations. Didnt prevent res judicata from being applied.
(iii) What is a stipulation? An agreement by the parties to agree to a particular issue.
Theyre going to stipulate that something is the case. Sometimes they do it to
avoid having to litigate the issue at hand. Usually attorneys will do this because
they believe the trier of fact is going to reach the same conclusion on the issue
anyway way to save time and money
(iv) Here, they stipulated as to when the claim accrued as to the purposes of the
statute of limitations (p. 693). Then the case got dismissed (Action No. 2) on the
basis of the stipulation (SOL). Risky stipulation
(v) The P also argued that res judicata shouldnt be applied because the two actions
involved different claims because they involved different legal theories
(Sherman Act v. Clayton Act violation). Court rejects this argument to show that
these are different claims. Say instead that these are the same claims for
purposes of claim preclusion . The only thing that is different under these
theories is recovery.
(h) Subject matter
(i) NOTE: Traditional viewidentical claims based on different legal theories are
not the sameThis court rejected traditional view
(ii) Used modern transactional approach instead as to what constitutes a claim. A
claim includes all rights of a P to remedies against a D with respect to the
transaction from which the action arose.
(4) Modern Transactional Approach
(a) Claim includes all rights of the plaintiff to remedies against the defendant with respect
to the transaction or series of connected transactions from which the claim arose.
(b) Transaction is a pragmatic question and turns on factors in Restatements of Judgments
24
(i) Are facts related in time, space, origin, or motivation?
(ii) Do the facts form a convenient trial unit? (e.g., same evidence, witnesses, etc.)
(iii) Does their treatment as a unit conform to the partys expectations or business
understandings?
(iv) Here the Ps rights arose out of the same transactions coming out of the same
wrongful action of the Ds. Same witnesses, documents, evidence. So therefore,
were dealing with the same claim

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(c) The only one decided in this case, was the Clayton Act, not the Sherman Actwhy
have preclusion then for claims that were not decided? They didnt decide the Sherman
Act conspiracy allegations
(d) Policy behind Modern Transactional Approach in favor of the doctrine of res judicata
(i) Preserve/Conserve judicial resources dont have to spend time and money
determining the other claim
(ii) Persuade plaintiffs to bring their claims in one law suit pleading in the
alternative
(iii) Avoids inconsistent outcomes
(iv) Not desirable to let plaintiff keep suing defendant on different theories until he
wins (hits the jackpot) the court system would lose integrity
(v) Not good policy to allow plaintiffs to keep suing defendants as form of
harassment
(e) Concerns about claim preclusion Is res judicata a fair doctrine?
(i) Doesnt defendant get a windfall victory?
(ii) What about the concern for truth?
(iii) What about cases like Williamson where it appears that the attorney set a trap
door?
(iv) See Question (1) on page 696
(f) Splitting Claims
(i) Whenever plaintiff is unable in the 1st action to present the entire claim because
of a jurisdictional or procedural limitation on the legal theory or remedy,
plaintiff can bring the second action on that theory or for that remedy
(ii) Barred if plaintiff could have brought the entire suit in the same court system
(Sutcliffe)
(iii) If diversity or supplemental jurisdiction could be used to hear a state claim in
federal court, 2nd action in state court is barred (must be clear that plaintiff could
have brought the state claim in federal court)
(5) States Under Modern Transactional Approach
(a) Smith v. Kirkpatrick (NY) p. 696
(i) 1st action breach of contractStatute of Frauds. D wins summary judgment
because the statute of frauds applied because it was an oral agreement
(ii) P given leave to amend and did amend - 1st action amended pleaded breach of
informal oral contract and oral contract of joint venture Trial without a jury
and the judge dismissed the claim on the merits. One cause of action was left out
(quantum meruit). Court said D had gotten windfall because of the statute of
frauds problem and the failure of the P to allege quantum meruit. The P doesnt
appeal but instead brings a second action
(iii) P files 2nd action quantum meruitpermitted. Question: Was action no. 2 the
same claim and barred by claim preclusion. Court says the doctrine of claim
preclusion did not apply
(iv) Used strict Same Evidence Test to prevent defendant from getting a windfall
victory and in classifying this as a different claim
(a) Claims are not identical if they involve different rights and wrongs
(b) When a new rules of substantive law arises the cases are said to involve
different rights and laws.
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(c) Used different evidence to prove different elements therefore not the
same claim because P would be required to prove different elements. The
evidence used would vary materially.
(d) Claim preclusion does not apply
(v) Is this consistent with Williamson? Is the decision of the court here consistent
with the court in the Williamson case? The Smith case is contrary to the modern
approach for determining when claims are identical. Its the older approach to
these sorts of issues.
(vi) Does this case reach a desirable result? It seems like justice is served. The D
didnt obtain a windfall and maybe the court didnt want the doctrine of claim
preclusion or res judicata to apply
(vii) If the court is sympathetic to a P who has a good claim but lost because of bad
lawyering, should that be a factor in deciding whether or not to apply claim
preclusion? could create inconsistent outcomescould be helpful though to
those who are the victim of a poor representation
(viii) Still used by some states
(b) OBrien v. City of Syracuse (NY) p.698 Comes up 28 years later also in the NY
court system
(i) 1st actionP sues D city for de facto taking of property. The case was dismissed
for failure to established de facto taking. App Court affirmed but said that Ds
act might have constituted trespass
(ii) 2nd actionP brings suit against same D for trespass to the same property at
various times. D moves to dismiss on res judicata and court denies. Appellate
Ct. reverses and applies the doctrine (res judicata). NYs highest court affirms
and applies res judicata.
(iii) Plaintiffs arguments that claim preclusion should not apply
(a) Actions are based on different theories (Smith) de facto taking versus
trespass. Actions invoke different rules of substantive law and therefore
involve different rights and wrongs
(b) Different evidence needed to establish the claims and so these claims
should be considered different under the Smith case and that claim
preclusion should therefore not apply
(iv) Courts reply rejects Ps argument
(a) De facto taking theory is just an aggravated trespassso the evidence
needed for each action is the same, identical if you use the Same
Evidence Test.
(b) Even if actions involved different elements of proof, 2nd action is still
barred because the state of NY has adopted the Modern Transactional
Approach for determining the identity of claims
(i) Once a claim has been brought to final judgment, all claims out of
the same transaction are barred even if you use different legal
theories or seek a different remedy
(ii) Claims are based upon the same actions of defendant (same
transaction).
(iii) Court overrules the Smith v. Kirkpatrick approach different
right, different wrong, same evidence approach
(iv) The transactional approach is now to be used to determine if
claims are identical

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(c) To the extent that Smith is inconsistent, it is overruled (but other states
may still use test similar to Smith)---use transactional test now
(v) Remaining claims against the city
(a) Claims covered by the first category in Ps complaint were barred by res
judicata
(b) Not barred because they are based upon actions after 1973
(c) Barred because no timely notice of claim on the citythe city didnt get
notice of the claim based on post 1973 events
(6) Federal suits on res judicata
(a) Hennepin Paper Co. v. Fort Wayne Corrugated Paper Co. p. 699
(i) P lost the first action, brings action no. 2 to reform the written contract to make
it correspond to the true intent of the parties.
(ii) P in action no. 2 is seeking a different remedy than that sought in the first action.
(iii) Question: Is this second action barred by res judicata? The court said yes.
(iv) The Ps right to the remedy of reformation arises from the same transaction as
the first action so is therefore barred. Under the Federal Rules the P couldve
sought remedy of reformation in the earlier action. The fact that action no. 2
seeks a different remedy did not make it a different claim
(v) Must bring all theories of recovery or action on the same transaction in the 1st
suit
(b) Questions p. 681
(i) Question 4 P sued in state court for unfair competition. Then brings anti-trust
claim in fed ct. There is no bar. The general rule is that whenever the P is unable
in the first action to present their entire claim because of a jurisdictional or
procedural limitation that prohibits asserting a certain legal theory or demanding
a certain remedy, then the P can bring a second action on that theory or for that
remedy.
(ii) Question 5 You need to know if there is a procedural or jurisdictional issue to
keep them from bringing the state law claim in the first action. If there was
diversity jurisdiction then you couldve brought that claim in the first action or
were allowed to bring it under supplemental jurisdiction. It has to be clear that
the P couldve brought the same claim in the federal court in the first action.
Also have to know whether supplemental jurisdiction was available. So if they
couldve brought the state claim in the first action, then they will be barred from
the second action res judicata would then apply.
(c) Sutcliffe Storage & Warehouse Co. v. United States p. 702
(i) 4 cases filed in the same district court, basis for the lawsuit is for rent due for
occupancy of the same real estate for different periods of time in Boston.
(ii) District courts jurisdiction was limited to matters of less than $10,000, so the P
had to go to Court of Claims to sue for more than that (since defendant was
United States Navy). If you sue the US for more than $10,000 you have to go to
the Court of Claims in Washington. The D is the United States in this case
(a) Determine if they can split the claim (sim to Q4 above)
(iii) The D makes a motion to dismiss based on another defense: prior action
pending. The result of a dismissal based on a prior action pending Its a
dismissal without prejudice

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(a) Dismiss without prejudice (the P can refile the same claim), if another
action on the same claim between the same parties is pending in the same
state or federal court while the present action is commenced and the
action is still pending
(i) Can raise it immediately to avoid defending against multiple
lawsuits
(b) Used to avoid harassment of repetitive law suits
(c) To establish the defense of prior acting pending, you must establish the
actions involve the same claim and that a judgment in one action would
bar judgment in the other actions
(d) These involve the same claims in this case
(iv) Court
(a) Yes- Suits involving the same claim because of an ancient legal principle
that claims for amounts due under a lease must include all amounts due at
the time the suit is brought (done to avoid piecemeal adjudication) in
this case, a judgment in one action would bar the other actions. The last
three actions should therefore be dismissed
(b) Limit of district court to $10,000 does not change the res judicata result
because plaintiff could have brought all claims by selecting the Court of
Claimsthis court is in the same system of courts as the original court.
The exception to the limitation didnt apply where the P couldve brought
all other claims in another court in the same system of courts
(i) Here, in the fed ct system. They could have brought the claims in
the court of claims, so P couldnt split claims.
(c) Less severe remedy of prior pending action might bar use of res judicata
some courts say that defendant who does not object to another suit
pending means that defendant acquiesces to waiving res judicata
Might have let the first claim go through to judgment, and the other claims would be precluded by
res judicataalso seen in Williamson: let the one action go to judgment and used it to bar the next
claimP is lucky; but should the us atty do that (ethically) to defeat a citizen P?
(d) These cases tell us to use Modern Transactional Approach to determine whether
claims are identical
(i) Apply to extinguish a claim by plaintiff against defendant, even if plaintiff
presents evidence or legal theories not brought in the 1st action (Williamson and
OBrien)
(ii) Even if plaintiff is seeking remedies not demanded in the 1st action (Hennepin)
(iii) Likely problems in applying the Modern Transactional Approach, is it fair/
workable? Problem with determining what counts as the same transaction.
Example in Commerical Box (below)
(e) Commercial Box & Lumber Co. v. Uniroyal, Inc. p. 706
(i) Contract to deliver ammunition boxes
(ii) 1st actionP suing D to recover loses in labor and lumber incurred in the re-
delivery, plaintiff wins in this case
(iii) 2nd action
(a) Arose from the same contract as the 1st actioncontract terms let
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(b) P alleges that defendant wrongfully deducted discounts from its payment
prices during a certain time period
(c) D moved for summary judgment saying action was barred by claim
preclusion.
(iv) Court of Appeals
(a) Narrowly defines transaction
(b) Claims were different because 2nd claim was based on different wrongful
acts namely Ds wrongful deduction of discounts. Action was based on
different CONDUCT complained of
(c) Could define transaction more broadly - say that it is the same transaction
because it arises out of the same contract and do the 3 Modern
Transactional Approach element analysis. Are the facts of the cases
related in time, space and origin? Would it be convenient to hear these
actions as a unit?
(v) Point of casethere are problems with the Modern Transactional
Approach
(a) In particular, its hard to figure out which factual groups constitute the
same transaction. Court used a narrow description to conclude that these
actions arise from different transactions
(b) Court could use discretion to create ad hoc decisions
(c) Why court took the narrower view court influenced because defendant
told plaintiff that if the 1st action was confined then defendant would
have higher chance of paying plaintiff. Footnote (p.707-08)
(f) Does it matter if the court defines the claim narrowly or if it accepts certain exceptions
to res judicata? Might be more fair to have exceptions so the judgments are not made
in an ad hoc fashion
(g) Should we be concerned that courts may be able to manipulate the doctrine to define
claims narrowly so as to avoid claim preclusion?
(h) Another example of the flexibility of the Modern Transactional Approach: Trust that
was established to produce the highest possible income consistent with reasonable
security. Trust said trustee had to invest in certain kinds of debt instruments from
1928-1961 the value of the trust decreased from 400,000 to 335,000. In first action,
beneficiary successfully sued trustee to lift the restriction. In action no. 2 the
beneficiary sued the trustee for mismanagement and breach of fiduciary duty during the
period before 1961 seeking damages in removal of the trustee. QUESTION: Did these
suits arise from the same transaction
- Could take a narrow view and argue that they did NOT arise from the same
transaction because theyre based on different wrongful acts of the D action no.
1, the wrongful act is that the trustee wouldnt life the specific investment
restriction. Action no. 2 wrongful acts of the trustee were the mismanagement
and breach of fiduciary duty. The two actions are based on different conduct of the
D and therefore different transactions and claim preclusion should NOT apply
- Could take a broader view and argue that they DID arise from the same transaction
because they arise out of factual groupings related in time and space. They arise
out of the decrease in value of the trust under the trustees care. Could argue that it
would be convenient to try them together and no reason the parties wouldnt expect
that
- The court concluded in the actual case that they did NOT arise out of the same
transaction

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(i) Does it matter whether a court proceeds by defining a claim narrowly (Commerical
Box) so as to avoid claim preclusion, or would it be better to just recognize some
exceptions to claim preclusion or res judicata?
(j) Harrington v. Vandalia-Butler Board of Education p. 687
(i) Both suits were over the same transaction (sex discrimination)
(ii) 2nd suit used new legal theory ( 1983) because Supreme Court decision during
the 1st suit (a Title VII claim) overruled a case that did not allow plaintiff to use
1983 for damages (Monell)
(iii) Action no. 2 filed immediately after the Monell decision the P suing under
1983. D argues that the claim is barred by claim preclusion
(a) Granted in saying could have raised 1983 claim in first action
(iv) Does the change in law regarding section 1983 does that preclude the
availability of claim preclusion in this case. Claim preclusion applies in this case
(v) Res judicata still applies even if intervening change in laws
(a) 2 actions based on same transactionsame act of discrimination
(b) 1983 claim was available at time of 1st actionplaintiff could have
challenged the validity of the rule that was established in the earlier case
of Monroe v. Pape just like the plaintiff did who won the case
(c) Even if plaintiff had lost on 1983 suit in the 1st action because of
Monroe rule, res judicata would still apply after the change in law
because the general rule is that: a judgment on the merits even if
erroneous will be deprived of its preclusive effect only if vacated,
reversed, or set aside on direct appeal
(vi) Any hope for plaintiff??exception to res judicata
(a) Res Judicata would not be applied if their application would contravene a
public policy or manifest injustice. How would applying res judicata
here would contravene an overriding public policy?
(b) Applying might contravene a public policy
(i) The public policy here seems to be the policy of awarding
compensatory damages for sex discrimination the court says that
this policy isnt adequate
(ii) Court said this is not as important as other policies (racial
discrimination, but even this policy the court says in prior cases
on p. 710, wouldnt necessarily preclude the application of res
judicata) didnt rise to the degree of importance in society to
override res judicata.
(iii) In United States v. LaFatch, there was a public policy sufficient to
override res judicata the policy to encourage cooperation with
law enforcement in thwarting attempts at bribery and extortion.
But the court doesnt necessarily explain why THIS is a sufficient
public policy and racial or gender discrimination isnt.
(iv) Was unfair but not manifestly unjust if it was manifestly unjust
that would be an exception to res judicata. How could you argue
that it would be manifestly unjust under these circumstances to
apply res judicata?
(v) Court says a certain degree of unfairness will be apparent in any
application of res judcata but doesnt mean its manifestly unjust

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(vi) Court shows it is tough to establish either exception to res
judicata
(vii) Plaintiff could have asserted the 1983 claim without violating Rule 11 if she
had asserted a good faith argument to change existing law. You would make it
known though that there is a Supreme Court case directly on point to cover
yourself
b) Adjudication Not on the Merits
(1) Historically judgment must be on the merits, based upon the substance of the suit in order for
claim preclusion to apply the TRADITIONAL RULE (Waterhouse v. Levine p. 712)
(a) First action was dismissed because it had been prematurely brought, claim hadnt
matured. Claim 2 brings same claim but is matured. D argues that it is barred by claim
preclusion
(b) Action no. 1 wasnt decided on the merits, claim was dismissed so res judicata did
not bar the second action.
(c) Shows that there is a need for some kind of not on the merits exception for res
judicata
(d) This traditional approach has gotten smaller as the years go
(e) Counterexample
(i) Trial that was dismissed because it was prematurely brought was not decided on
the merits so res judicata did not ban bringing another suit on that claim
(2) Rule 12(b)(6) - Traditional Approach. What happens when a dismissal is based on a demurrer?
Is that a decision on the merits? (Keidatz v. Albany p. 691)
(a) Claim 1: Action to rescind a contract alleging fraud and failure of consideration and did
not allege damages because it did not allege that the property was worth less than they
had agreed to. D demurred to the second amended complaint for failure to allege an
essential element of the claim. P failed to amend within the time allowed so judgment
for the D. The claim was dismissed for a missing element in the complaint.
(b) Claim 2: 4 months later, P brought action alleged fraudulent inducement to buy the
house and this time corrected the defect in the pleadings from the first action. Was P
barred by res judicata from bringing the second action NO
(c) A dismissal on the grounds of demurrer does not bar the second action where the P
has corrected the defects on the pleading
(d) Dismissal (12(b)(6)) did not bar a second action where the plaintiff corrects the defects
in the pleading.
(i) Claim preclusion didnt bar the defective action
(ii) True even if the plaintiff had taken advantage of the opportunity to amend the
complaint
(iii) Traditional Approach on demurrer or failure to state a claim (12(b)(6))

(iv) Restatement (Second) of Judgments 19 p. 716


(3) Rule 12(b)(6) - Federal Courts dealing with res judicata (Rinehart v. Locke - p. 694)
(a) 1st suitcivil rights action under 1983 for unlawful arrest, Rule 12(b)(6) dismissal,
defect was that plaintiff failed to allege that defendant lacked probable cause in
arresting the plaintiff, judge denied P leave to amend, no appeal
(b) 2nd suitmore than a year later, identical complaint in substance, plaintiff alleged lack
of probable cause based on the same arrest. Did the first action bar the second action?
YES. Notice that the court denied leave to amend in the first action fairly unusual for

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a court to do (Rule 15). This may have been an abuse of discretion but the P did not
appeal that issue and instead chose to file the second lawsuit. In accordance with the
traditional approach, the P could argue that claim preclusion shouldnt bar the suit -
Keidatz
(c) Plaintiff barred in bringing second suit
(i) Court in 1st action denied leave to amendliberal standard to allow
amendments, district court may have abused its discretion, plaintiff did not
appeal this
(a) The P should have appealed the denial of the amendment
(ii) Plaintiff argued traditional approach allows 2nd suit when he corrects the defect
in the pleadings
(iii) Courtrejects this argument, Rule 41(b) makes earlier dismissal preclusive,
adjudication on the merits unless court in its order states otherwise
(a) What are the dismissals under the subdivision that operate as
adjudication on the merits unless the court otherwise specifies?
dismissal for failure to prosecute, failure to obey court order or rule
(b) What are dismissals not provided by this rule that is adjudication on the
merits unless the court otherwise specifies?court says you have to look
to whether the defendant is put to inconvenience of preparing to meet the
merits
(c) Court thought that the D was put to the inconvenience of preparing to
meet the merits in this case. So the dismissal for failure to state a claim
which did not specify that the dismissal was without prejudice operated
to bar the second action.
(d) Dismissal that does not state it is without prejudice is a bar
(iv) Could question the decision since defendant might not have been
inconvenienced because it did not take much to defeat the 1st suit. Were they
really put to an inconvenience?
(v) Originally, a judgment operated as a bar only if had been decided on the merits,
only if it was based on the substance of the action, either after trial or summary
judgment. Over time, that has been applied more broadly, sometimes applied
even if judgment wasnt based on evaluation of the substance of a claim. Better
approach
(a) Consider the purposes of res judicataincentive for plaintiff to combine
all the claims in one suit (liberal amendment policy is warning to plaintiff
to bring all claims as one)
(b) Apply res judicata because plaintiff can amend when he finds new
information
(4) Traditionally, judgment was a bar only if it was based on the substance of the action (on the
merits), now applied more broadly (even if judgment was not actually based upon the
evaluation of the substance of the claim)
c) Counterclaim p. 697
(1) When a defendant actually raises a counterclaim then all aspects of it are subject to the rules of
claim preclusion, and must assert all claims that arise out of the same transaction that form the
basis of the counterclaim
(2) What happens when a defendant fails to raise a counterclaim that arises out of the same
situation?
(a) Multiple situations

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(i) Fails to raise a permissive counterclaim can the defendant sue on that claim
later?
(a) In general, the defendant is unaffected by claim preclusion with respect
to not raising permissive counterclaims
(b) What if the D alleges as a defense the same facts that would support a
permissive counterclaim? In that case, the D would be not be precluded
from maintaining a subsequent action on the counterclaim?
(c) Example: Schwabe v. Chantilly, Inc. p. 720
(i) Claim 1: Suit for failure to pay rent. The D raised affirmative
defense saying they were fraudulently induced to sign the lease
and won. WI made all counterclaims permissive counterclaims
(ii) Claim 2: P sues for fraud and malicious prosecution. D moved to
strike fraud cause of action since affirmative defense in first
action was based on the same facts. Argued that P had to bring
fraud theory in first action
(iii) TC agreed, P appealed. Were Ps barred from being fraud action in
the second action since they raised fraud as an affirmative defense
in the first action? NO
(iv) 2nd claim not barred 1) In Wisconsin all counterclaims were
permissive. 2) Court sets out GENERAL RULE for this
situation: When permissive counterclaim facts are shown they
are not precluded from filing another action as long as they
won the first action.
(v) If the D lost in the first case, then the D IS barred from
bringing a new action. Otherwise the D could attack acts
established by the first judgment. The D cannot upset facts
that have been previously established.
(vi) The Ps won the first action so they werent attacking any
previously established facts
(vii) Arguments for: D should be able to choose their own claim
(viii) Arguments against: Undermines the policy of settling all related
actions in one case.
(ii) Fails to raise a compulsory counterclaim claim arising out of same transaction
as the Ps claim. Claim preclusion or something similar will apply.
(a) Claim preclusion or something similar applies when you fail to assert a
counter claims Rule 13(a)
(i) Some see it as equitable estoppel or waiver instead of seeing it as
res judicata doctrine.
(b) Horne v. Woolever p. 724
(i) Action 1: Suit in Ohio court for personal damages and D removed
to federal court and did not assert a counterclaim and the case was
settled and dismissed with prejudice
(ii) While action 1 was pending, P sued D for personal injuries from
same car crashes brought in federal
(iii) New D asserted that judgment 1 was bar to second action and
won. Rule 13 required him to assert his own claims. Even though
Ohio had no comparable rules. Ohio state court had to give the
federal court full faith and credit.

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(iv) Rule 13(a) required Horne to assert his own claim as a
compulsory counterclaim to the first action. So the OH state court
had to give the federal court judgment full faith and credit.
(c) Whitney v. Dindo p. 703
(i) P sued D for damages suffered in a car crashed while D was
driving.
(ii) The case settled and the insurance company paid Whitney some
money
(iii) Second action - D sued P saying that P put his arm through the
steering wheel which caused the action. The same insurance
company defended P and the court agreed that second action was
barred because of failure to assert a compulsory counterclaim.
(iv) 2nd case was not allowed because it was a compulsory
counterclaim.
(v) Is the second action barred by Rule 13?
(vi) Dindo argued that it should NOT be barred by rule 13 because 1)
the first action was settled and therefore not decided on the merits
(court rejected this) 2) asserting rule would be inequitable
because he did not realize he had a counterclaim until the 1st
action ended (court accepted this as a possible argument). Court
notes that the bar arising out of Rule 13 is sometimes called res
judicata but other courts see Rule 13 as an estoppel or waiver.
(vii) This is a better approach the second view, at least when the first
action is settled before trial. If Dindo knew that he had a
counterclaim then Rule 13 would bar it (so the court said) or if
Dindo failed to give the insurer a full and true account of the
accident that might result in estoppel barring the counterclaim
3. ISSUE PRECLUSION (COLLATERAL ESTOPPEL) - P. 729
a) The doctrine of issue preclusion forecloses the relitigation of issues that were actually litigated, that is,
were contested by the parties and were submitted for summation and determination for the court and
were necessarily decided by the court
b) First q to consider: How do you tell what issues were decided in the first case?
c) Requirements of the Rule
(1) What was decided in the first case? (Little v. Blue Goose p. 729)
(a) 1st suitdefendant sued plaintiff for damage caused in a collision, defendant (Blue
Goose) won after trial before the justice of the peace, appeal was dismissed for lack of
prosecution
(b) 2nd suit while first action was pending plaintiff sued in IL city court, defendant for
injuries in collision, executrix alleged defendant was negligent and was wanton and
willful in the negligence. Dr. Little dies and his executrix is now substituted as the P.
Blue Goose defended on the ground that Littles action was precluded because the
earlier found that Little was contributorily negligent and that barred any recovery in the
second action. The issue of Littles issue of negligence could not be relitigated. The
executrix won in the city court App court reversed holding that P was collaterally
estopped to relitigate Littles contributory negligence
(c) Why 2nd suit not barred by claim preclusion because of compulsory counterclaim?
(i) Illinois may not have compulsory counterclaim rule

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(ii) Likely that Justice of the Peace court had limited jurisdiction and could not hear
the 2nd suit ($5,000 claim not cognizable)
(d) Executrix was bound by the 1st action even though she was not a party
(i) Raises the idea of privity the doctrine of claim and issue preclusion only apply
when the second action is between persons who were parties or who are in
privity with persons who are parties in the first action
(ii) Executrix is the successor in the interest of plaintiff and is bound by the Ps
litigation failures in her connection with the claims that shes asserting in her
role as the executor
(iii) If executrix was hurt in the crash and is now suing for her own injuries would
she be bound by the first judgment NO, not bound by the 1st suit unless she
allowed plaintiff to sue on her behalf
(e) How do you determine which issues were actually decided in the 1st action?
(i) Ask the judge or justice of the peace to write up what was decided at the time of
judgment/decisionrequired by Rule 52 federal judges
(ii) Jury trial what if the first case was a jury trial, should we then ask the jurors?
(a) Cant ask jurors to tell you reasoningnot all will agree
(b) Instead, you have to look at what was necessarily determined by looking
at the pleadings and the jury instructions
(c) Reason backwards to determine what should have been decided to
warrant the outcome/generate the result of the case
(iii) The earlier decision must mean that plaintiff was contributorily negligent
because defendant won against plaintiffso the first court must have found
him negligent. Thats a total bar to recovery in the second action
(iv) Willful negligence claim? Dr. Littles executrix sued for willful or gross
negligence.
(a) 1st suit necessarily found defendant (blue goose) was not contributorily
negligent because defendant won against plaintiff and that wouldve
barred recovery by blue gooseeven though he was found negligent in
the first action, blue goose could not use negligence as a defense if blue
goose was found grossly negligent in the second action
(b) The issue of contributory negligence must have been decided see
footnote (a) the issue of blue gooses negligence was necessarily
resolved.
(c) Precluded because plaintiff was required to plead and prove freedom
from contributory negligence
(f) Fair to give the judgment of a Justice of the Peace a preclusive effect? (Limited
jurisdiction (small $ amts) and de novo appeal). Should the nature of the first court bear
on whether we should give binding or preclusive effect to that first judgment?
(i) De novo appeal (hear the suit anewnone of judges findings are considered
except, perhaps, his reasoning) might indicate reason for no preclusive effect
not much faith in Justice of the Peaces decisions
(ii) If 1st action was a very small claimproblem because defendant does not have
much of an incentive to litigate the claim (issue of fairness) if the amount of
money at stake is not very large so it might not be fair to give that first judgment
preclusive affect. Keep the issue of fairness in mind when you go through issue
preclusion cases not much incentive for D to litigate with little at stake

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(g) If plaintiff (Little) had won the 1st action in the Justice of the Peace court, on a general
verdict, you cannot tell what issues were resolved (plaintiff contributory negligent or
defendant not negligent), so there would be no preclusive affect in these circumstances.
(2) Dealing with the requirement that the issue must actually be litigated and determined
(Jacobson v. Miller p. 732)
(a) 1st actionP sued for rent under a written lease, no denial of execution of the lease by
the Ds. One D argued that he wasnt liable because he didnt occupy the residence. P
won .
(b) 2nd actionaction for rent again for the same lease, same defendant now denies
execution of the lease. P tried to say that D was collaterally estopped from challenging
the execution of the lease because he didnt bring it up in the first action
(c) Court held: There was No preclusionissue of leases execution was not actually
litigated and decided in the 1st action. Collateral estoppel did not preclude litigation of
that issue
(d) What about the collateral estoppel affect of a default judgment no collateral estoppel
affect because nothing was actually litigated or decided. Admissions during discovery,
or stipulations or judgment as a result of settlement and consent judgments typically
cannot be used as a basis for collateral estoppel.
(e) Could argue that the lease was held to be valid in the first action therefore issue
preclusion
(f) Judge probably felt in this case that the lease was invalid
(3) When is collateral estoppel not allowed
(a) Default judgmentsnothing was litigated or decided
(b) Admissions during discovery
(c) Stipulations
(d) Judgments on settlement
(e) Consent judgments sometimes have collateral estoppel effect if intended by the parties
(4) When collateral estoppel is allowed when judgments are given collateral estoppel effect
(a) Summary judgmentson the merits
(b) Judgments on Directed verdictsjudgment on the merits and not on the parties
consent
(5) Necessary/Essential to the judgment
(a) Cambria v. Jeffery p. 736 majority view- issue preclusion only applies to
terminations that are essential to the judgment
(i) 1st actionJeffery sued Cambria for injuries and damages to Jeffreys car,
Cambria won, but court said both were negligent. Jeffrey lost because hed been
contributory negligent
(ii) 2nd actionCambria sued Jeffery, appeals court holds that the 1st action/
judgment did not adjudicate that Cambrias servant was negligent
(iii) Did the first action collaterally estop Cambria from litigating the issue of his
negligence? No- collateral estoppel
(a) Although the Issue was actually litigated1st requirement met
(b) There could be No preclusion because it was not essential or necessary to
the judgment of the 1st action the sole basis for the judgment in the
first action was defendants contributory negligence

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(c) How to tell whether a Finding necessary/essential to the judgment in the
first action???
(i) Did the party to be precluded have any incentive to appeal in
order to overturn the earlier finding?
(ii) Cambria had no incentive to appeal the first action because doing
so would not have changed the result in the case. He won on the
finding that the P was contributory negligent (plaintiff would
still win because defendant was still contributorily negligent)
(iii) Another test: Did the finding support the 1st judgment? No
finding that fails to support the judgment in the first action is
essential to it
(iv) plaintiffs (Cambria) negligence in the 1st suit does not support
judgment for plaintiff in that case
(v) only finding supporting judgment was defendants negligence in
the 1st case. No reason to decide if Cambria was negligent.
Judgments comment about Ds neg was only dicta statement by
the court that is not essential to the judgment
(vi) Whats the Purpose of this rule (dicta)dicta is not be carefully
considered, theres no incentive to appeal dicta and we dont want
to encourage the courts to make unnecessary pronouncements or
statements. Cambria expresses the majority view in this type of
situation. Later MA case w/ sim facts Homeowners (p.737)
findings of the product of full litigation and careful decision by
the court. This view has been heavily criticized only held by a
minority of courts. collateral estoppel covers findings not
essential to judgment in final action where clear that the findings
were treated as ~essential?
(6) What if party wins with Alternative Determinations or grounds each of which standing alone
would be enough to support a judgment in their favor?
(a) Ex, in Little v. Blue Goose; in 1st action, suppose Little not neg and Blue goose cont
negeither one suff to support decision for little
(b) 1st Restatementtook the position that the judgment is binding on both issues
(c) This is dealing with a different idea than Cambria because the finding of defendants
negligence would not support the 1st judgment. Here, either finding would be sufficient
to support the judgment
(d) In the context of alternative determinations, there may be problems similar to Cambria
situations: lack of careful consideration of the alt grounds; may also be probs about
incentive to appeal
Halpern v. Schwartz p. 738
(i) 1st action- adjudicated bankrupt on 3 grounds
(ii) Three alternative theories, one was on actual intent to defraud of creditors
(iii) 2nd action: sought discharge in bankruptcy; couldnt get discharge if she acted w/
intent to defruad creditors
(iv) Halpern denied- her determination to defraud precluded the 2nd action
(v) Judgment resting on alternative grounds Not preclusive to any of the alternative
grounds (contrary to the 1st Restatement), not sure which ground defendant won
on. A judgment resting on alternative grounds is not preclusive as to any of the
grounds

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(vi) Arguments in Support of this decision
(a) Judge may not have given careful consideration to each alternative
ground if the court in the 1st action found that one of the grounds was
clearly sufficient to support the judgment then the judge might not be as
careful with respect to considering the other grounds. Therefore we
shouldnt give any of the alternative grounds collateral effect because
were not sure which the judge gave careful attention to
(i) Not clear if they were carefully considered
(ii) Might have been carefully consideredmust plead fraud with
particularly because it has the ability to damage a person
(b) Second argument: Since there are alternative grounds which could
independently support the judgment, parties lack incentive to appeal
because the loser has little incentive to appeal erroneous finding because
even if their claim were sustained the judgment could be affirmed on one
of the other grounds. Therefore, the argument is that we should not give
collateral estoppel effect to any of the alternative holdings
(vii) Problem because it might force an attorney to choose one theory and forego
additional alternative theories for fear of preclusion in later litigation. This rule
(Halpern) might deter from asserting several theories in support of a result.
(shows that halpern rule no good)
(viii) Majority view: Majority of jurisdictions take a position contrary to this holding -
when alt grounds, each would independent support the judgment- issue
preclusion applies to each alt holding
(ix) Restatement second of judgments follows Halpern, except that
(x) Sometimes other side will argue that alternative ground is just dicta
(7) What about inconsistent judgments? p. 739
(a) The last judgment in time is controlling Donald v. J.J. White p. 739
(8) Berlitz School of Languages in America v. Everest p. 740
(i) First Action found that a disclaimer was sufficient to dispel any confusion about
who was putting the books out because it made it clear that it was Charles
Berlitz putting out the books and not the school.
(ii) 2nd action same P sued under federal law of smaller insufficient disclaimer and
likely to confuse consumers about the origins of the goods. Claimed that the
disclaimer was in smaller print and Berlitzs name was in bigger print and
therefore collateral estoppel should not bar litigation of whether the disclaimer
was sufficient.
(iii) Issues identical- likely to confuse consumers. Court said the factual situations
didnt differ.
(iv) Collateral estoppel barred litigation because the difference in the size and the
name in the disclaimer were not sufficient to warrant a new claim in the
preceding. If the facts had been more substantial then collateral estoppel would
not have barred the new proceeding. Here, the factual circumstances did not
differ substantively, the disclaimers were pretty much the same, therefore
collateral estoppel applied to bar litigation of whether the disclaimer was likely
to confuse consumers about the origin of the goods.
(v) What about the problem that 1st action was state claim and the second was a
federal court? Irrelevant because the facts and actions were the same. It is the
same issue in both actions.
(vi) This case is raising the problem of the reach of rule of collateral estoppel in
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the face of different factual and different legal circumstancespermitted
issue preclusion, but it left open the possibility that the rule of issue
preclusion may not be applicable if the facts changed substantially.
(b) How far does Collateral Estoppel reach? How close do the facts have to be?
(i) If they are sufficiently different Collateral Estoppel does not apply.
d) Exceptions to the Rule
(1) United States v. Moser
(a) 1st actiondefendant sued for retirement pay of next higher rank, Moser in naval
academy during the civil war; Moser won?
(b) Another suit said statute did not apply to academy cadets, relied on an overlooked
statute in the 1st trial
(c) Later Moser suits, relied on the 1st judgment and gave benefits to Moser
(d) Governments argumentscollateral estoppel should not apply to the issue of law
wrongly decided in the first trial
(e) Supreme Court
(i) Collateral estoppel does not apply to pure issues of law
(a) Not estopped from saying the law is otherwise
(b) Arguments
(i) Apply to the issues of lawjudges are better able to resolve legal
disputes than factual disputes, so give a collateral estoppel effect
(ii) No collateral estoppeldo not freeze the law, later judges are
equally capable of resolving the law
(ii) No collateral estoppel if the case involves a fact, question, or right distinctly
adjudged in the 1st action and this cannot be disputed in subsequent actions even
if it was erroneouscollateral estoppel may apply to mixed issues of law and
fact
(2) Montana v. United States
(a) 1st actionUnited States challenged tax on public construction contracts on grounds of
discrimination in Montana state court, state tax upheld
(b) 2nd actionUnited States challenged tax in federal court
(c) Questions
(i) Are the issues the same in each action? Yes, the issue of the constitutionality of
the tax
(ii) Are there any exceptions to issue preclusion here?
(a) Have controlling facts or legal principles changed significantly?
(i) Factsjudgment must be made based upon those facts? No major
change
(ii) Lawmust be a major doctrinal shift
(b) Pure issues of law in successive actions involving substantially unrelated
claimsimportant in constitutional litigationdont want to freeze
litigation/development in law
(c) Reason to doubt the quality, extensiveness, or fairness of procedures
followed in prior litigationgovernment chose the state court in the first
action
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(3) Unforeseeability of future litigation
(a) Apply collateral estoppel to issues determined in the 1st action only when it is
reasonably foreseeable that the issue would be of importance of possible future
litigation (Evergreens)
(b) Justificationnot as much incentive to litigate an issue if you could not foresee the
importance of future cases
(c) Spilker v. Hankin
(i) 1st actiondefendant gave attorney several notes for legal services, did not pay
2nd note, defendant pleaded duress . . ., attorney wins, no appeal
(ii) 2nd actionDefendant sues for remaining notesmoves for collateral estoppel
(iii) Normal ruledefenses which fail in 1st suit are normally foreclosed to
subsequent litigation
(iv) Exceptionwhere applying collateral estoppel would contravene important
public policy
(a) Fee contracts between attorney and client are a special concern to the
courtsthese override applying collateral estoppel
(b) Seems to be a very general exception to issue preclusionwhere there is
a strong public policy that counsels against issue preclusion then it is not
used
(v) Could read this rule narrowly
(a) Only precludes fiduciary relationships
(b) Based upon plaintiff did not have adequate incentive to litigate the issue
because 1st case was for a small amount
(4) Restatement 28
(a) Party against whom collateral estoppel could not as a matter of law have obtained a
review of the 1st actions judgment
(b) Issue is of law
(i) Two actions involve claims that are substantially different (Montana, Moser)
(ii) New determination is warranted to take change of the law into account
(Montana)
(c) Warranted by differences in the quality/extensiveness of the procedures (Montana)
(d) Party had a significantly heavier initial burden, the burden has shifted, adversary now
has a significantly heavier burden
(e) Clear and convincing need for a new determination
(i) Potential adverse impact of determination on public policy (Spilker)
(ii) Subsequent action not sufficiently foreseeable (Evergreens)
(iii) Party did not have adequate opportunity/incentive to obtain a full and fair
adjudication of the 1st action (Spilker)
(5) Federated Department Stores v. Moitie
(a) 1st claim dismissed for failure to state a claim, only 5 appealed, later reversed
(b) 2nd new action on another theory, not allowed because of collateral estoppel
(c) Court of Appeals

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(i) Non-appealing parties may benefit from a reversal when their position is closely
interwoven to that of the appealing party
(ii) Claim preclusion should give way to simple justice and public policy
(d) Supreme Court
(i) Res judicata used as claim preclusion here
(ii) Rejected the interwoven exception
(iii) Rejected the exceptions based on simple justice
(a) Simple Justice is achieved when claim preclusion is applied even-
handedly
(b) No principle of law or equity can sanction rejection of claim preclusion
(c) Reject exception to res judicata on public policyhas to be end to
litigation; claim preclusion to be given weight to public policy in its own
right
(iv) Harrington allowed exception to res judicata for public policy reasons
distinguish Moitie since this was business matters
(v) Does not affect Spilkers policy exceptions for issue preclusion because this case
is over claim preclusion
(6) Exceptions based upon the posture of the party
(a) If in 1st action you are in special posturerepresentative for a trustee
(b) No bar in 2nd action if it is brought in the individual capacity of the representative
(c) Special posture in the 1st action meant that there was no fair and full opportunity to
have the case litigated
4. EFFECTS ON PERSONS NOT PARTIES
a) Persons Bound by Prior Judgment
(1) Traditionalonly binds parties and those in privity (a relationship between two parities out of
which arises mutuality of interestnon-party bound by judgment both in claim preclusion and
issue preclusion)
(2) Restatement ??
(a) Does not discuss privity
(b) Three categories where non-parties are bound
(i) Persons actually represented by a party to an action (principles represented by
agents, beneficiaries represented by trustee)
(ii) Successors in interest to a partys property involved in an action (A conveys
property to C after judgment, C bound to 1st action)
(iii) Non-parties who control the prosecution or defense of an actionperson must
have effective choice in the legal theory and proof advanced in the suit and have
a chance to appeal the suit
(3) Indemnity
(a) Have a relationship where if one party is subjected to liability, another party will
indemnify the party for his lossinsurers are Indemnitor, policy holder is indemnitee
(b) Indemnitee can vouch in the indemnitor by giving notice of an action and offer control
of the defense
(c) Bound by judgment once you are vouched in irrespective if they control the defense

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(d) Indemnitor represented by indemnityrepresentation allows privy of a stranger to the
action
(4) Show-World v. Walsh
(a) 1st actionlandlord sued to challenge safety order against a tenant
(b) 2nd actiontenant sued on similar grounds
(c) Res judicata did not bar the action
(i) Extent that property interests can establish privity
(a) Existence of landlord/tenant relationship is not enough at least not where
landlord is asserting tenants constitutional rights
(b) Might be enough if the case is over the title
(ii) Extent to which strangers conduct can make it privity
(a) Conduct was Show-Worlds failure to intervene
(b) Mere failure to intervene is not enough to make it privity
(iii) Virtual representation
(a) May be applicable
(b) Sometimes may say person bound by a judgment even though he was not
a party if the party to the suit is so closely aligned with their interests to
be their virtual representative
(c) Court said it was not enough for privity
(d) Virtual Representation Doctrine is very narrowly appliedmust have a
finding of an expressed or implied reliance where the party to the 1st
action is accountable to the non-party; accountable in class action where
the government sues for citizens
(5) Neenan v. Woodside Austoria
(a) 1st actionHuppman sued for damages in a crash, won because defendant was
negligent and plaintiff not contributorily negligent
(b) 2nd actionplaintiff (passenger on bus) sued Huppman and defendant for personal
injuries, judgment against both, Huppman tried to introduce the 1st judgment to
preclude finding his negligence
(c) No collateral estoppel
(i) Neenan had not had her day in court in the 1st suitshe was neither a party nor
in privity
(ii) Issue was not foreclosed by the 1st judgment
(iii) Holding she was bound is not consistent with Due Processmust have an
opportunity to be heard or so identified with a party that her interests were
litigated (virtual representation)
b) Persons Entitled to Benefits of Prior Judgment
(1) Mutuality of estoppel
(a) Traditional approachpersons could not benefit from collateral estoppel unless they
would also be bound by the judgment
(b) Turns on fairness of due process
(2) Developed over time
(a) **Bernhard v. Bank of AmericaCA p.765 [Traynor]
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(i) 1st actionBernhard sued Cook saying the money was embezzled, court says it
was a gift
(ii) 2nd actionsued defendant as executrix seeking to recover money Cook
withdrew, Bank said plaintiff was collaterally estopped to dispute the money as a
gift
(iii) Issue: did collateral estoppel not apply bc BOA wasnt bound by judgment in
first action?
(iv) Doctrine of mutuality of estoppel is rejected
(a) Due Process forbids assertion of res judicata or collateral estoppel
against a party unless a party or privity to the 1st action
(v) *No compelling reason for the party asserting res judicata or collateral
estoppel to be required to be a party or privity in the 1st action
(a) Argument against mutualityplaintiff already had a chance to argue the
issue and would not be economic to allow re-litigation of an issue
(b) Arguments for mutuality
(i) Findings in litigation do not represent the truthjust resolution of
a particular case
(ii) Failing to apply mutuality gives a stranger to the 1st action a free
ride to have the issue determined
(iii) Not efficient to give up mutuality because defendants in 1st action
will have to litigate everything strenuously (to the max) because
the judgment could be used against them in a later case
(b) Bernhard became very influential
(i) Dicta seemed to reject the whole doctrine of mutuality of estoppel. So !
(c) Four situations to understand how far other courts should go with Bernhard
(i) Plaintiff sues defendant and defendant wins, loser plaintiff sues new defendant,
can new defendant use collateral estoppel?
(a) Strongest case for collateral estoppel
(b) Courts more sympathetic to using estoppelbecause the plaintiff chose
the court and the adversary in the 1st action
(c) New D wants to use the judgment defensively: Defensive use of
collateral estoppel: stranger wants to use prior judgment as a defense to
the 2nd action (Bernhard is an ex of this situation)
(ii) Plaintiff sues defendant and plaintiff wins, loser defendant sues new defendant,
can new defendant use collateral estoppel?
(a) Defensive use of collateral estoppel
(b) Party to prior action did not choose court in that actionmight be reason
not to allow collateral estoppel, could have been an inconvenient forum
(hard for D to defend there)
(c) ! Courts think that defensive use of collateral estoppel presents fewer
problems than offensive use; (defenseive use: when new party uses col
estoppel to defend)
(iii) Plaintiff sues defendant and defendant wins, new plaintiff sues loser plaintiff,
can new plaintiff use collateral estoppel?
(a) Offensive use of collateral estoppelplaintiff using judgment against
defendant
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(b) Significant that it is used as a sword rather than a shield
(i) Creates liability problem against loser plaintiffopen up liability
from all sides
(ii) Other (potentially new) Plaintiffs can wait and see attitude and
take advantage of 1st judgment
(iv) Plaintiff sues defendant and plaintiff wins, new plaintiff sues loser defendant,
can plaintiff use collateral estoppel?
(a) D didnt choose the forum
(b) Hardest case for collateral estoppelproblem of the multiple claimant
(i) i.e. 50 passengers injured in RR accident. P1 sues RR and loses.
P2, 3, and 4 bring suit and also lose. P5 wins. Can P6-50 win
through collateral estoppel? This is a mass tort situation.
(c) Collateral estoppel may be too powerfulcourts deal with this by
denying collateral estoppel to later plaintiff if defendant has prevailed in
any prior action
(d) After Bernhard- Tendency in some courts to permit defensive use and not allow
offensive use
(e) Federal Courts
(i) Blonder Tongue v. University of Illinois p. 770 defensive use collateral
estoppel
(a) 1st actionplaintiff sued defendant for patent infringement, plaintiff lost
because patent was invalid
(b) 2nd actionplaintiff sues new defendant over patent, issue is the validity
of the patent
(c) New defendant could use prior judgment to show invalidity of the patent
defensive use of collateral estoppel
(i) Held: Supreme Court rejected mutuality as a matter of
federal law at least to the extent of defensive use of collateral
estoppel
(ii) Question if it is any longer tenable to give more than one
opportunity to litigate an issue (lead to inefficiency in judicial
administration, problem: makes litigation look like a Gaming/
gambling table- if you allow repeated litigation as long as you
have an unrelated supply of Ds)
(d) Safeguardsjudgment will not preclude re-litigation if:
(i) If you can show that the 1st action failed to allow fair opportunity
procedurally, substantively, and evidentially to litigate/pursue the
issue. They mustve had a full and fair opportunity to litigate
the issue in the earlier case. Based on the courts sense of
fairness, justice and equity.
(ii) Factors to determine the fairness of the first action - choice of
forum who chose the forum (in the first action), incentive to
litigate, was prior case a rare case where the court failed to
grasp the technical subject matter of the issues, was the party
deprived of crucial evidence and witnesses
(ii) Parklane v. Shore p. 773 Offensive use of collateral estoppel in the federal
courts

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(a) 1st actionseeking damages (for jury to decide), over misleading proxy
(b) 2nd actionSEC filed same suit against same Ds as the 1st alleging proxy
statement was false and misleading; sought injunctive (equitable) relief
(trial by judge); judge found for SEC
(c) 1st plaintiffs moved for summary judgment against Parklane (D)-
estopped to dispute proxy statementdefendant collateral estopped from
litigating issue
(d) Court of appealsno collateral estoppel bc would deny the people the
right to a jury trial (what they sought in the 1st action); COA reverses
(e) Supreme Court- does the 2nd judgment collaterally estop Parklane (D) in
other proceeding? Yes.
(i) Court must determine whether stockholders can use offensive
estoppel. ! Allowed offensive use of issue preclusion
(ii) Preferable approach is to grant the trial court the discretion if
offensive use of collateral estoppel is appropriate in the situation
(iii) Limits to trial ct discretion !
(f) Several factors in deciding that the offensive use of collateral estoppel
should not be permitted
(i) Know whether 2nd plaintiff could have easily joined the 1st lawsuit
problem of the wait and see plaintiff ! increases litigation and
does not promote judicial economy
(ii) To promote judicial economy, dont allow offensive estoppel
when you have a wait and see P
Questions relevant in this first factor
Were there any legal impediments to jointing the action?
Here this wasnt the case of a wait and see P :
stockholders prob couldnt join SEC bc statute that
prevented Ps from joining the suit
Were there any practical impediments to joining the
action (joinder)? Should the court consider cost and
inconvenience of joining the other suit maybe so, the
court here doesnt say.
If P couldnt have easily joined the other lawsuit, then
court must ask: would it be unfair to foreclose re-
litigation by the defendant?3 categories of concern.
(1) different stakes at issue in the earlier action, lack of
incentive to litigate vigorously the earlier action
especially if future lawsuits arent foreseeable, (2) are
there different procedural opportunities, allowing
offensive collateral estoppel may be unfair where second
action gives D procedural opportunities that were
unavailable in the first action and that could readily
cause a different result see footnote 15 on p. 775, (3)
inconsistent results weigh against the use of offensive
collateral estoppel its unfair to apply offensive
collateral estoppel if the judgment relied upon if the a
basis for the estoppel if it is itself inconsistent with one
or more previous judgments in favor of the D
(g) The adversary system doesnt work perfectly in all cases so the argument
here is that it is unfair to bind the D by one juries decision where there
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are other different jury decisions Applied here, the judgment the court
says in the SEC action was not inconsistent with any previous decision
(h) Taking these factors into consideration court says it WAS fair to apply
offensive collateral estoppel on the facts of this case
(i) There is no unfairness in applying offensive collateral estoppel here
main focus in this type of case is whether it is fair to apply this type of
collateral estoppel

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