Rule 12(b): Defenses by Motion
1) subject-matter 2) personal 3) venue 4) process 5) service 6) state
a claim 7) join
12(g)(2): cannot make another motion under 12 if omitted from
earlier 12 motion
12(h): waives defenses if omitted or failing to make it by motion or
include in a responsive pleading or amendmen
12(h)(3): court must dismiss action at any time if it lacks subject-
matter juris
If argue that complaint doesn’t state claim arising under federal
law🡪12(b)(6) if there’s any arguable basis for a federal claim, if not
then 12(b)(1)
Personal Jurisdiction
International Shoe: Minimum contacts not offending traditional
notions of fair play and substantial justice – claims from quality and
nature of act (specific jurisdiction)
General Jurisdiction: substantial and continuous🡪any claim
[domicile, incorp/PPoB]
Hanson: D purposefully avails itself of privilege of state🡪invoke
benefit&protection
WWVolkswagon Factors: 1) forum state’s interest in adjudicating 2)
plaintiff’s interest in convenient forum 3)efficient resolution
4)inconvenience to D
Foreseeability – reasonably anticipate being haled into court, efforts
of manufacturer to serve the market for its product in the State
Burger King: K negotiated/performed in state🡪purposeful availment
Asahi: O’Conner: place in stream of commerce is not enough;
Brennan: yes
Designing product for market, advertising, sales agent in
State🡪intent to serve state
Calder Effects Test: D expressly aims tortuous conduct at forum
state and aware his intentional conduct will cause harm in forum
state
Burnham (Transient Jurs): physical presence alone is OK
(tradition of legal system)
Carnival Cruise (Consent): forum-selection clauses OK if not
meant to discourage, PPoB in forum state, no fraud, Ps concede
they had notice of the clause
Mullane: Notice reasonably calculated to inform those affected, or
if not available, the form chosen is not substantially less likely to
give notice than customary ones
RRule 4 – Summons: 4(d) waives, 4(e) for individuals, 4(h) for
corporations
Long-Arm Statutes: Provide more limits for juris. –sending of e-
mails is out of state
Venue/Forum non Conveniens
§1391: (a) is for diversity [where any D resides if all Ds are in same
state, substantial part of events, where D is subject to PJ] (b) is for
non-diversity [same except where D can be found], (c) corps reside
in district where subject to PJ if district was a state
Forum Non Conveniens: Piper: Strong presumption in favor of
P’s choice of forum can be overcome by factors. Private Interest
Factors: ease of access to sources of proof, process and cost of
obtaining unwilling witnesses, view of premises, other practical
problems making trial easy, fast, and cheap; Public Interest
Factors: administrative difficulties from court congrestion, local
interest in having controversies decided at home, forum state with
correct law for diversity, avoidance of problems in conflict of
law/foreign law, unfairness of jury duty in unrelated forum
Transfer: For the convenience of parties and witnesses, in the
interest of justice
§1404: Change of Venue when court has PJ and venue
§1406: Cure or Waiver of Defects: If court is lacking PJ or venue
§1631: Transfer to Cure Want of Jurisdiction
Subject Matter Jurisdiction
Federal Question: § 1331: “Arising Under”
Mottley: Well-Pleaded Complaint Rule: P must present federal
question on face of complaint and must be necessary to P’s case
TB Harms: even though claim is created by state law, could arise
under US if complaint discloses a need for determining
meaning/application of such a law
Diversity: §1332: $75k, corp is citizen of incorporation/prinicipal
place of business
Hawkins: presumption against federal juris🡪party seeking to invoke
it has burden of proof, domicile is physical presence + intent to
remain
Redner: citizenship is measured by date complaint is filed, if
against foreign state, party must be citizen not merely resident
Strawbridge requires complete diversity
Corps: Nerve Center or Everyday Business Activities
Supplemental Jurisdiction
United Mine Workers: Common nucleus of operative facts (entire
action = 1‘case’), discretion if state law dominates, sensitive/novel
state issues, confusion to jury, whether fed issues are resolved early
Aldinger, Kroger, Finley: statutes must confer jurisdiction
§1367: a) so related🡪same case/controversy b)if diversity🡪no supp
juris over parties under rule 14,19,20,24, or where it would destroy
diversity; c) discretion: novel/complex state issue, state claim
predominates, district court dismissed all claims that gave it juris, in
exceptional circumstances🡪compelling reasons
Removal
§1441: a) remove if district courts have original juris; b) fed
question cases are removable without regard to citizenship,
diversity cases are removable only if no Ds are citizen of state the
action is brought in; c)if a fed question claim is joined to state
claims🡪removable; f) fed court is not precluded bc state court
lacked jurisdiction
§1446: a) file notice of removal with short&plain statement of
grounds for removal; b) within 30 days after receipt of complaint,
or 30 days after receipt of amended complaint unless under
diversity jurisdiction and 1 yr after commencement of action
§1447: c) motion to remand on any defect other than lack of subject
matter juris within 30 days after filing of notice of removal;
d)remand of case is non-reviewable unless civil rights case (1443);
e) if P joins Ds that destroy subject matter juris, court can deny
joinder or permit it and remand to state court
Metropolitan Life: Congress pre-empts area so complaint is
necessarily federal
Caterpillar: failure to remand case from improper removal not fatal
if federal jurisdictional requirements are met at final judgment
Erie Doctrine
Law to be applied is law of the State – no general federal common
law
Diversity must apply conflicts principle of forum state
§1652: State Laws as Rules of Decision
York – Outcome Determinative Test: fed court is free to ignore state
procedural rules unless it would substantially change outcome
Byrd: If outcome determinative, are there affirmative countervailing
considerations of federal judicial administration (right to jury is
essential for US Constitution)
Rule must be bound up with definition of rights&obligations of the
parties and not merely a form and mode of enforcing to be followed
Hanna pt 1: State law unless failure to do so would likely result in
forum shopping between state and fed ct bc of likelihood of dif
outcome –
Hanna pt 2: if a rule is not procedural or is unconstitutional then
state practice applies (how to serve process-federal) – can’t impinge
on substantive rights
Certification has fed ct ask state sup ct to answer question on state
law
Incentives to Litigate
Punitive Damages: Oberg: Constitution imposes substantive limit
on awards
Gore Guideposts: 1) degree of reprehensibility of defendant’s
conduct (harm was physical or economic, indifference/reckless
disregard of health/safety of others, repeated actions or isolated,
result of intentional malice, trickery); 2) disparity between harm
suffered and award (single digit ratio unless egregious act with
small economic damage amount); 3)difference between award and
similar civil penalties
State Farm: cannot punish D for acts committed outside State
Injunctive/Declaratory: P must demonstrate legal remedy
(damages) inadequate
Sigma: balance hardship on P if relief is denied with hardship to D
if it is granted
§2201 authorizes declaratory judgments, and procedure is Rule 57
Preliminary Injunction/TRO – Rule 65: a1) requires notice, a2)
hearing can be consolidated with trial on merits, b)1TRO without
notice only if irreparable harm before adverse party can be heard
🡪movant must give security to pay cost/damage
Abbott: party seeking prelim injunction must show: 1) likelihood of
success on merits and no adequate legal remedy and suffer
irreparable harm if prelim relief is denied; then consider 2) balance
harm to each if granted/denied and public interest
Sliding Scale: more likely P will succeed, less balance of harm
needed
Fuentes: must give D hearing before being deprived (even
temporarily) of significant property interest, except extraordinary
situations with valid gov’t interest
Complaints
Rule 3: A civil action is commenced by filing a complaint with the
court
Rule 8: a) state jurisdiction, claim that entitles relief, demand for
relief sought; b) respond with defense to each claim and admit/deny
allegations( general denial, deny part, lack knowledge/info=denial,
no denial=admitted); c)affirmative defenses – if mix up defense and
counterclaim the court must if justice requires treat it as if correct;
d)party can state as many claims/defenses it has regardless of
consistency
Rule 9: pleading special matters
Rule 10: each claim founded on a separate transaction or
occurrence and each defense other than a denial must be stated in a
separate count or defense
Rule 12(b) lists defenses that must be made by motion before
pleading
Haddle: 12(b)(6) attacks legal sufficiency of claim (even if true,
law affords no relief
Ashcroft (Twombly Rule): Legal conclusions must be supported
with factual allegations🡪Plausibility standard if P pleads factual
content that allows court to draw reasonable inference (more than a
sheer possibility); recitation of elements are conclusory and not
entitled to be assumed true; applies to all civil actions
Ethical Limits
Rule 11: b) presenting a pleading, written motion, or other paper
(signing, filing, submitting, later advocating) certifies that to best of
person’s knowledge, info & belief formed after an inquiry
reasonable under the circumstances: [1)not presented for improper
purpose (harass, delay, increase cost); 2)legal contentions warranted
by existing law/nonfrivolous argument for modifying law; 3)factual
contentions have evidentiary support or will likely have it after
discovery; 4) denials are warranted by evidence or reasonably based
on belief or a lack of info]; c)court can impose sanction on attorney,
party, or law firm(must be held jointly liable for employee) either
by motion or on court’s initiative🡪must deter repetition of conduct;
cannot impose monetary sanction on its own
Walker: didn’t give all info on diversity🡪poor knowledge of well-
established law
Mattel: filing meritless claim without reasonable investigation
violates rule; sanctions can only be limited to paper (not conduct in
depositions, behavior, etc)
Responding to Complaint
Rule 12: a) 21 days after service or 60 if signed waiver, 21 days for
counterclaim, US gets 60 days, 14 days after a motion is denied;
c)judgment on the pleadings; d) if matters outside pleading are
presented🡪treat as summary judgment; e)motion for more direct
statement; f)motion to strike; g)joining motions - if made a motion
under12, cannot raise a defense or objection under 12 that was
omitted; h)waiving
Default: failing to respond to a complaint enters default judgment
against them
Zielinski: Denial is ineffective when only portions of paragraph
being denied actually didn’t happen🡪should make clear what he is
denying/admitting
Ingraham: Whether a defense is affirmative: logical relationship
between defense and the cause of action asserted by P (necessary
element of P’s cause of action?, which party has access to evidence,
policy considerations)🡪no unfair surprise
Amendments
Rule 15: a) amend 21 days after service, otherwise only with
consent, must respond within 14 days; c)An amendment relates
back when: [1)statute of limitations allows it; 2)it asserts
claim/defense that arises out of same conduct,
transaction/occurrence; 3)for parties: had notice within 120 days &
knew action would be brought to him
Beeck: Burden is on party opposing amendment to show prejudice,
bad faith, or undue delay (courts generally allow amendments
[when justice requires])
Moore: actions after surgery did not relate back to actions before
surgery
Bonerb: Amendment that changes legal theory is appropriate if
factual situation upon which the action depends remains same and
was brought to D’s attention at pleading
Discovery
Rule 26b: 1)Scope: any nonprivileged matter relevant to any
party’s claim or defense, relevant info need not be admissible if
reasonably calculated to lead to discovery of admissible evidence;
2)party must show info is not reasonably accessible bc of undue
burden/cost in response to motion to compel, court could still order
discovery if there is good cause, court must limit discovery if:
[i)unreasonably duplicative or can be obtained from an easier
source; ii)party seeking discovery had ample opportunity; iii)burden
outweighs likely benefit];
3)Party cannot discover documents/tangible things prepared in
anticipation of litigation unless: discoverable under b1 and party has
substantial need and cannot without due hardship obtain an
equivalent, court must protect against mental impressions,
conclusions, opinions, or legal theories, OK for own previous
statement
5)If claiming privilege party must expressly make the claim and
give description
Rule 26c: Protective Orders
Davis: Other employees’ complaints of discrimination may be
relevant for pretext
Steffan: whether P engaged in homo acts was irrelevant bc case was
about statement
26(a) is for required disclosures, 33 for interrogatories, 36 for
admissions, 34-5 for production requests, 27-32 for depositions
Marrese: motion to limit discovery requires comparison of hardship
to parties of allowance/denial
Privilege can be waived by failing to assert it or disclose to a third
party
Upjohn: Control Group Test: If employee making communication
can control decisions then he personifies corp and has privilege;
broader: middle/lower employees can by actions embroil corp in
legal difficulties and will have the relevant information🡪privelege is
greater than convenience of discovering for gov’t
Hickman: Without necessity/justification to secure written
statements, private memoranda, and personal recollections prepared
in course of legal duties, production could be justified if witness is
no longer available🡪must show substantial need (for
impeachment/corroboration) and inability to obtain equivalent
material
Resolution Without Trial
Rule 41 – Dismissal: Voluntary Dismissal by P: before being
served answer or stipulation by all parties, or by court order
(without prejudice); Involuntary dismissal by D’s motion =
adjudication on merits; rule applies to counterclaims
Rule 55 – Default Judgment: fails to plead or defend
ADR act of 1998 – each fed d ct to implement an ADR program
Morgan’s Foods: Rule 12 gives court authority to order litigants to
participate in mediation & gives judge authority to impose sanctions
for failure to comply – person with authority to negotiate must be
present and memoranda must be submitted
Federal Arbitration Act: agreements to arbitrate are valid as
matter of federal law
Ferguson: Arbitration agreements are enforceable unless grounds
that eist for revocation of any contract – procedural
unconscionability: oppression/surprise; substantive
unconscionability: compels arbitration for claims employees are
most likely to bring and exempts those that Countrywide would
most likely bring, fee provision gives employee any expense
beyond usual costs🡪insidious pattern
Carter: Strong presumption in favor of arbitration🡪party seeking
invalidation has burden of establishing validity (texas law does not
hold K unconscionable)
Rule 56 – Summary Judgment: until 30 days after close of
discovery, opposition to motion within 21 days after service; no
genuine issue as to any material fact 🡪 judgment as a matter of law
(based on pleadings, discovery, affidavits); affidavits must be made
on personal knowledge&set out facts admissible as evidence
Lundeen: The clear affidavits from the only persons in a position to
be aware of a factual situation can serve as a basis for a summary
judgment, as long as affiant is not biased, dishones, mistaken as to
facts and his affidavits are internally consistent
Cross: Summary judgment is not appropriate where inferences
parties seek to be drawn deal with questions of motive, intent, and
subjective feelings & reactions
Celotex: No requirement that moving party support its motions with
affidavits or other similar materials negating the opponent’s
claims🡪burden may be discharged by showing there is absence of
evidence to support nonmoving party’s case
Jury Trial
Seventh Amendment: Right to a trial by jury shall be preserved
Rule 38: On any issue triable of right by a jury, a prty can demand
it
Suits at common law get a jury triel while courts of chancery
(equitable remedies) do not🡪Look to see whether a given claim lay
within common law jurisdiction in 1791
Terry: 1) compare statutory action to 18th centry actions; 2)examine
remedy sought as legal or equitable in nature
Torcomian: joinder of an equitable claim/relief with legal
claim/relief will not defeat jury trial – equitable main claim won’t
preclude jury on legal compulsory counterclm
Questions of law go to judge and questions of fact go to jury
Dobson: interpretation of type of K is question of fact (legal effect
is result of facts)
Reid: Where the undisputed evidence of P points with equal force to
two inferences, one of which renders D liable and the other not, the
P must fail (Cow)
Rule 50 – JML: a)if ct finds that a reasonable jury would not have
a legally sufficient evidentiary basis to find for the party🡪judgment
as matter of law (any time before case is submitted to jury); b)28
days after judgment movant can file a renewed motion for jml with
request for new trial; c)if grants renewed jml, it must conditionally
rule on any motion for new trial
Chamberlain: where there is direct conflict of testimony upon
matter of fact, must be for jury, but here there is no conflict (no
direct evidence & 1 testimony is suspicious)
Rule 59 – New Trial: a) for any reason one has heretofore been
granted (28 days)
Granted when process leading up to verdict was flawed or verdict
was unjustifiable
Lind: motion for new trial on ground that verdict was against
weight of evidence is ordinarily nonreviewable bc within the
discretion of the trial court (not for procedural defect leading to
verdict🡪standard is great weight of evidence
Judge can order new trial limited to issue of damages or
remittitur/additur
Claim Preclusion (Res Judicata)
Heaney: Former adjudication concludes parties and privies for
every matter offered & received to sustain/defeat the claim and to
every matter which might & should have been litigated in 1 st suit ;
damage and mandamus not required consolidated
Policy: litigation which is repetitious/inefficient burdens
parties/judicial system
§1738: Full Faith & Credit
Frier: Narrow Cause of Action Test: evidence necessary to sustain
a second verdict would sustain the first (causes of action based on
common core of operative facts)
Modern Restatement Test: Claims arising from single “Transaction”
(matters related in time, space, origin & motivation) must be
litigated in single lawsuit
Rule 13(a) – Compulsory Counterclaim: pleading must state
claim if it arises out of the same transaction or occurrence & if party
added doesn’t defeat jurisdiction
Martino – Common law compulsory counterclaim rule: res judicata
bars a counterclaim when its prosecution would nullify rights
established in prior action
Gargallo: fed ct determines preclusion by whether state ct would
preclude it
Rule 41(b) – Involuntary dismissal operates as adjudication on the
merits
Semtek: dismissal on statute of limitations does not preclude in
states that have a longer stateu of limitations (preclusive effect in
fed diversity action should be same if a state ct in the forum state
had rendered it)
Issue Preclusion (Collateral Estoppel)
When an issue of fact or law is actually litigated and determined by
a valid and final judgment and the determination is essential to the
judbment, then it is conclusive in a subsequent action between the
parties, whether on the same or different claim
prevail on civil burden of preponderance does not mean it could for
reasonable doubt
Parks – General Verdict: if jury could have decided on two
grounds, no preclusion
Benson&Ford: Privity: person so identified w other 🡪represents the
same legal right
A non party will be considered in privity when: 1)nonparty has
succeeded to a party’s interest in property, 2)non party who
controlled the original suit, 3)if interests were represented
adequately by a party in the original suit; not enough that nonparty
supplied attorney, helped to finance litigation, testified as witness
Virtual Representation: party to 1st suit is so closely aligned with
nonparty’s interest
A party who has never had an opportunity to litigate an issue cannot extent of litigation already begun, desirability of concentrating
be precluded claims in particular forum, manageability concerns)
Defensive CE: P was estopped from asserting claim he had c) certification – best notice practicable with individual notice to all
previously litigated members identified through reasonable effort, with chance to
Offensive CE: P is seeking to estop D from relitigating issues he request exclusion; d)conducting the action; e)settlement – notice,
litigated before hearing that it is fair, if under b3, must have opportunity to exclude;
Parklane: where P could easily have joined in earlier action or h)attorney’s fees
application of offensive estoppel would be unfair to D🡪not allowed Communities for Equity: rigorous analysis into prerequisites before
to use offensive estoppel certification; adequacy of representation (rep must have common
Century Home: Where outstanding determinations are actually interests, rep will vigorously prosecute interests through qualified
inconsistent on the matter sought to be precluded🡪estoppel is unfair counsel)
(half win/half lose) Causey: Mass accident should be class action where: limited to
Restatement: party is precluded from relitigating with an opposing issue of liability, members support action, choice of law problems
party is also precluded with another person unless he lacked a full are minimized by action occurring/all plaintiffs in same jurisdiction
and fair opportunity to litiage the issue or: incompatible with [dif damages will not make incompatible obligations under
scheme of administering remedies, forum in 2nd action has 23(b)(1)]
procedural opportunities not available originally, person could have Hansberry: A judgment in a class action binds absentee members
effected joinder, determination was inconsistent with another only if they have been adequately represented
determination on same issue, based on compromised verdict, issue Shutt: forum can adjudicate claims of absent members absent
is law so cannot reconsider legal rule minimum contacts
Joinder Eisen: Best notice practicable under circumstances (individual
Rule 18(a): party can join as many claims it has against the notice to members who can be identified through reasonable effort)
opposing party Castano: immature tort🡪any judicial resource savings is speculative
§1367 grants supp juris on: 1) basis of original jurisdiction; and procedural problems overwhelm any imagined savings🡪judicial
2)identity of party seeking to invoke supp juris; 3) the Rule blackmail bc all-or-nothing
authorizing joinder of party/claim Amchem: for settlement-only class certification, don’t look at
Rule 13: Compulsory/Permissive Counterclaims manageability problems but heightened attention towards blocking
Plant: Test for same transaction/occurrence: issues of fact/law the overbroad class definitions (interests are not aligned in this medical
same?, would res judicata bar a subsequent suit on D’s claim?, same case)
evidence support claims?, logical relationship,[underlying debt is
compulsory in truth-in-lending cause of actions]
Great Lakes: Counterclaim is logically related where separate trials
on each claim would involve a substantial duplication of effort/time
[claims that D had bad faith]
Rule 20/21 – Joinder of Parties: join as P or D if assert any right
to relief arising out of same transaction, occurrence, or series of
transactions or occurrences and any question of law/fact will arise
in action; Misjoinder is not a ground for dismissal
Rule 42 – Consolidation: court can join any/all matters at issue,
consolidate the actions, issue other orders to avoid unnecessary
cost/delay; or separate trials
Mosley:All logically related events entitling person to legal action is
regarded as same transaction/occurrence; discriminatory character
of D’s conduct is same
Rule 14(a) – D can bring 3rd party if he is liable for all/part of claim
against it
Watergate: 3rd party must be secondarily or derivatively liable to D
in the event D is held liable to P (can’t say it’s not me, it’s him)
[breach of K ==negligence]
Rule 19: Compulsory Joinder: if doesn’t destroy subject matter
juris, party must be joined if: court can’t accord complete relief,
person claims an interest in action (judgment may impair their
interest, give party risk of inconsistent obligations); if cannot be
joined look at factors: (prejudice, other options, adequate remedy?)
Temple: A tortfeasor with joint and several liability is permissive
Helzberg’s: person is not indispensible simply bc their rights will
be affected
Class Actions
Rule 23: a) 1)numerosity 2)commonality 3)typicality 4)adequacy of
representation; b1)separate actions creates incompatible standards
of conduct or individual adjudications would be dispositive of
interests of other parties; b2)D has acted on grounds that apply
generally to the class so injunctive relief is appropriate for whole
class; b3)common questions of law/fact predominate and class
action is superior (interest in individually controlling law suit,