Subject-matter Jurisdiction

A. raised sua sponte at any level. Unwaivable. I. Diversity Jurisdiction District Courts have original jurisdiction over cases where (1) controversy exceeds $75,000 and (2) is between (a) citizens of different states; (b) citizens of a state and citizens of a foreign state; (c) citizens of different states with foreign citizens enjoined; (d) a foreign state as Plaintiff against citizens. A. WHY have diversity jurisdiction: 1. provide neutral forum for out-of-state parties when local bias (elected judges) might affect results 2. Speeds economic growth by giving security to out of area investors 3. Alienage jurisdiction to avoid state courts disrupting international relations and discouraging foreign investment 4. expansion of the law because diversity enables problems of national signficance to be addressed that traditionally remain under state law (med mal, corporate accountability) 5. Concurrent jurisdiction promotes competition and innovation. 6. Class actions often deal with cross border issues of commerce. A2. PROBLEMS with diversity 1. Bias does not really exist (or it would be present in federal juries) 2. chocie of law problem is difficult (forum shopping) 3. too many cases, especially criminal cases 4. favor creditors over debtors (large commercial interests) 5. Federal courts most often apply state law, and states understand their laws better than the government does 6. State courts cannot develop law if all their important cases go to US courts 7. Interfere with State autronomy B. Article III, Section 2: Judicial power shall extend to all cases arising between 1. Citizens of different states 2. Two or more states 3. State or citizen of and foreign state or citizen of 4. Tashire, 1967: Article III requires only minimal diversity. C. 28 U.S.C. 1332(a) District Courts have original jurisdiction in suits between (see above) when amount-in-controversy exceeds $75,000. 1. Need complete diversity: no single P and single D can share citizenship a. Strawbridge v. Curtis, 1806: EACH P must be able to sue EACH D. (1332 int.) D. Determining citizenship / state 1. Individual: domicile; state of residence, plus intent to remain a. Determined at time of filing under Rule 3, not at time of incident EXCEPTION: executor of an estate or for children. 2. Corporation: 28 U.S.C. 1332(c) a. State of incorporation, and b. Principal place of business i. Hertz, 2010: PPB where corp. has its nerve centercenter from which 1

companys officers direct, control, coordinate corps activities. Corp. headquarters. ii. Policy?: Corporations used to just be where they were incorporated. Too easy for them to remove to Fed court. Too many diversity cases in Fed court. EXCEPTION: insurance company (see below). 3. Insurer: 1332(c): 1. Where any insured is citizen; 2. Incorporation; 3. PPB 4. Unincorporated Association (partnerships, etc.): Each state in which one of the members is a citizentreated as group of individual litigants. E. The Amount-in-Controversy Requirement 1. Unless it is clear to a legal certainty (reasonable jury standard that P cannot recover more than $75,000, P meets the requirement simply by a good-faith claim. a. St. Paul Mercury Indemnity Co: Ps claim accepted if: i. Made in good faith, unless ii. Clear to a legal certainty claim is for less than $75,000 b. Nothing in Article III about it; started with Judiciary Act, 1789 c. Diefenthal, 1982: Could not by wildest stretch of imagination recover 10k for embarassment on an airplane. d. Kahn: NV recovery limit $750; if available legal remedy < requirement, no jurisdiction. 2. Aggregating Claims a. You can i. Join separate claims against same D ii. Tag along. Join second P under 28 USC 1367 if first P has valid claim and arising out of same single business dispute. b. You cannot i. Aggregate claims from separate Ps against same D EXCEPTIONS: Class actions and Common undivided interest: two Ps can sue a trust if amount exceeds $75k, even if it doesnt exceed twice $75k ii. Aggregate claims against separate Ds iii. Aggregate counterclaims: requirement assessed on original complaint II. Federal-question Jurisdiction A1. WHY have FQJ? 1. Federal judiciary should have authority to interpret and apply federal law. 2. Existence of alternative forum stimulates state courts to take claims of federal rights seriously (FQJ statute enacted in 1875, as a reaction to Reconstruction in the South following the Civil War) 3. Promotes uniformity, correctness in application of federal law. Since Sureme Court decisions are few, they must be handled sympathetically if federal laws are to be followed uniformly. (Fedl judges have life tenures and are insulated from political pressures; and as a forum for appeal, USSCO can correct unsympathetic interpretations.) A. Article III, Section 2: Original jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States. 1. Osborn, 1824: Only need federal ingredient in action, whether in Ps complaint or 2

Ds answer. B. 28 U.S.C. 1331: Constitution, laws, treaties. 1. Arising under interpreted more narrowly here a. Mottley, 1908: Federal ingredient must appear on the face of the Ps wellpleaded complaint (not Ds anticipated answer) (P had free RR tickets). b. Holmes test: suit arises under the law that creates the cause of action c. Declaratory judgment: Wycoff, 1952: Since declaratory judgment reverses the posture of the parties, look to the character of the threatened actionwhat P would claim. 2. Exceptions: Plaintiffs right to relief under state law necessarilly depends on resolution of a substantial, contested question of Federal Law. 2-prong test in d. a. Franchise Tax Board, 1983: Jurisdiction if well-pleaded complaint creates cause of action, or Ps right to relief necessarily depends on resolution of substantial question of federal law. b. Smith v. Kansas City Title & Trust, 1921: Smith must show KC violated charter, so must show bonds invalid, so must show Congress exceeded authority in creating. Claim (in state contract) necessarily depended on resolving question of federal law. c. Merrell Dow, 1986: P alleges drug negligently manufactured because didnt label under FDCA. No federal cause of action. Held: Allowing claim would open floodgates to wave of litigation and controvert congressional intent. d. Grable, 2005: IRS takes title to property; Grable says no proper notice of seizure. Held: A cause of action satisfies 1331 when i. Claim necessarily raises disputed and substantial federal issue; ii. Court may hear without disturbing federal-state court balance. iii. Gully, 1936: pick substantial causes using common sense C. The Test for Federal-question Jurisdiction a. Is the cause of action created by federal law? i. Yesthere is jurisdiction ii. No a. Cause of action created by state law; must see how federal law enters litigation b. Does federal law come in as a defense the P anticipates? i. Yes a. Mottley, well-pleaded complaint ruleno jurisdiction ii. No a. Comes in as part of Ps claim c. If federal law comes in as part of Ps claim, use Grable. i. Is resolution of the federal issue necessary? Yes to move on. ii. Is the federal issue substantial / important? Yes to move on. iii. Would exercising jurisdiction upset the division of labor between state and federal courts contemplated by Congress? If no, there is jurisdiction. a. That is, would allowing claim likely cause a significant number of similar claims to be brought in federal court? D. Narrow Exception a. If Ps claim satisfies Holmes (created by federal law), but all questions are 3

questions of state law, no jurisdiction i. Shoshone Mining, 1900: Federal law authorizes suit over mining claims; directs suits be decided by local rule. No jurisdiction. E. Supreme Court Review a. 28 USC 1257 allows US Sup Ct. to take cert in cases from state Sup Cts. That involve ingredient / broad Const. view.

Removal
I. In general, D can remove to federal court if P could have filed there originally. Removed to the District Court in control of the area where that state suit is pending. A. 1441(a) If multiple defendants, all must agree to remove B. 1441(b) EXCEPTION: Diversity case is removable only if no D is a citizen of the forum state (but any federal question case can be removed without regard for citizenship) 1. Forum defendant rulelocal courts likely not biased against in-state D C. 1441(c) If state and federal claims, entire case can be removed D. 1441(d) civil actions against foreign states E. 1441(e) Fed Court is not precluded just b/c original state court did not have jurisd. II. Procedure filing 1446 A. 1446(a) D files notice of removal in federal district court, short and plain statement for grounds B. 1446(b) D must file notice within 30 days after receiving pleading, or notice (amended pleading, etc.) that case has become removable, but no removal after 1 year C. 1446(d) Once notice for removal is filed, state court cannot proceed; D must notify all other parties III. Procedure After Removal1447 A. 1447(b) District Court may order movant to file all records of state proceedings B. 1447(c) Motion to remand for lack of subject-matter jurisdiction; motion to remand for any other reason must be made within 30 days after removal C. 1447(d) Order to remand not reviewable on appeal D. 1447(e) Court may deny joinder after removal if it will destroy SMJ.

Personal Jurisdiction
A. Waivable. The authorty to require the Defendant to appear in the forum and defend the action there. Due Process requires that in order for a court to have Personal Jurisdiction over a Defendant there must be minimum contacts such that the nature of the suit doesnt offend traditional notions of fairplay and substantial justice. I. History A. Basis 1. 5th / 14th amendment: due process a. State may not deprive person of property (by judgment) without due process of law: (1) have requisite basis of Power and (2) B. In personam jurisdiction 1. Authority to require D to appear and defend in forum. P can a. Recover from Ds assets b. Use Full Faith and Credit Clause to take judgment to another state to recover C. In rem jurisdiction 1. Court has no power over Ds person; only property in forum state a. Must issue writ of attachment prior to judgment to assert control over property, which can be sold to satisfy claim D. DArcy v. Ketchum, 1850: Full Faith and Credit only applies when D is served with process in state where judgment rendered. D. Pennoyer v. Neff, 1878: 1. For in personam jurisdiction, D must be served within state boundaries; state cant reach into another state to exert authority. 2. For in rem jurisdiction, court can exercise authority over property in state, but must first attach it to establish authority. II. Societal Changes After Pennoyer A. More interstate activity; notion of presence expanded B. Fictive Consent 1. Hess, 1927: Hess, PA, injures Pawloski in MA; statute stipulates Hess, by driving in MA, appointed Registrar as agent of process. State can exclude nonresident until formal appointment of proxy for service made. a. Olberding, 1953: Saying motorist consented is to move in world of Alice D. Other Modifications 1. Milliken, 1940: Domicile sufficient for jurisdiction, even if not served in-state. III. Contacts Analysis: Int. Shoe A. International Shoe, 1945: Int. Shoe, DE and MO, does business in WA. Refuses to pay tax. Is company present in WA to extent necessary for jurisdiction? 1. D need not be present, but must have contacts such that PJ doesnt offend traditional notions of fair play and substantial justice (Milliken) 2. Continuous and systematic contactsgeneral jurisdiction. PJ even when claim doesnt arise from contacts. 3. Single or isolated contactPJ only if contact gives rise to action. 4. Corp that conducts activities in state enjoys benefits and protections of its laws. If benefits give rise to liabilities, fair for D to have to respond in state. 5

B. Contacts and Reasonableness 1. McGee, 1957: P seeks to collect on insurance policy following sons death, who had purchased insurance from AZ corp. International Life took on policy, mailed certificate to CA offering son insurance. Son is only CA customer; no offices; no agents. Mother sues in CA. PJ because: a. Solicited business in CA b. Contract has substantial connection to CA c. Reasonableness factors i. CA has interest in disputeCA citizen ii. Convenient for P to try in CA iii. Inconvenience to D does not outweigh C. WHY have contacts? 1. protects the D from burdensome litigation 2. Ensure states do not reach out from their authority IV. General jurisdiction is always available A. Over natural person 1. In state where he is a citizen Milliken 2. In state where process is served Burnham B. Over a corporation 1. In state where incorporated 2. In state where it has its principal place of business V. General jurisdiction: Applying presence analysis when suits are not related to Ds activities in forum state A. Does D have such continuous and systematic contacts that it is at home in state? 1. Usually lies where corporation has a continuing physical presence a. Reyes v. Marine Management, 1991: General jurisdiction in LA over Hong Kong shipping company because company had corporate office in LA. b. Robbins v. Yutopian Enterprises, Inc. 2002: No general jurisdiction in MD over CA company that had conducted 50 transactions in MD in last year and marketed in MD, because no physical presence. d. Sondergrand, 1993: Alka-Seltzer can be sued in SD over claim arising in Utah; is present in all fifty states. d. Goodyear Dunlop Tires Operations, 2011: Bus crash in France; suit in NC against Goodyear subsidiary from Turkey. Sells tens of thousands (out of tens of millions) of tires in NC yearly. Considerations for general jurisdiction from Goodyear, where general jurisdiction was not found: i. Registered to do business in state? ii. Any physical presence in state? iii. Any advertising in state? iv. Solicit business in state? v. Any employees in state? vi. Volume of in-state business, relation to whole? vii. In general, if you carve out forum market, does it look like a local business? e. Helikopteros, 1984: Texas resident killed in helicopter crash in Peru. No 6

general

jurisdiction in Texas. Activities: i. Sent executives to Texas for negotiations ii. Accepted checks from Texas iii. Sent personnel to Texas for training f. Perkins, 1952: General jurisdiction over Philippines corporation satisfied in OH i. President had offices in OH ii. Files kept in OH iii. Activities supervised from OH VI. Specific Jurisdiction Test: Applying minimum contacts analysis when the suit arises out of Ds activities in forum state 1. Does the state long-arm statute provide for specific jurisdiction? 2. Was there an act by which D purposefully availed itself of the privilege of conducting business within the forum state, invoking the benefits and protections of its laws Hanson v. Denkla, such that it could reasonably expect to be haled into court in the forum state? BK 1. Stream of commerce is somewhat unsettled (see below) 2. Internet purports to use different rules, but reasonably straightforward (see below) 3. Is the lawsuit related to these contacts? 4. If so, is the exercise of jurisdiction otherwise fair and reasonable? Consider 1. Burden on defendant 2. Interests of forum state in adjudicating the claim 3. Ps interest in obtaining convenient relief 4. Interstate judiciarys shared interest in obtaining convenient resolution of controversy a. Consider location of evidence, witnesses 5. Shared interest of states in furthering substantive social policies a. Consider comity among the states RESULT. If contacts exist, likely jurisdiction even if some factors not satisfied VII. Specific Jurisdiction and the Stream of Commerce A. When a customer takes product into forum stateno jurisdiction without other contacts World-Wide 1. When a D injects product into stream of commerce (good args in McIntyre below and in class notes. a. Often through distributor (McIntyre) or sale to third party (Asahi) b. Only plurality opinions so far c. First approach: stream-of-commerce plus i. OConnor, Roberts ii. Mere foreseeability for national / international distributor not enoughneed some other act indicating purposeful availment and submission to authority a. Designing product for forum market b. Advertising in forum state c. Designating sales agent for state iii. Intent to sell generally in U.S. does not confer jurisdiction in any one state. d. Second approach: stream of commerce okay because fairforeseeability i. Superior Court in Asahi: Does business on international scale; not unreasonable for them to defend claims on an international scale. e. WW: If sale arises from the efforts of manufacturer or distributor to serve, 7

directly or indirectly, the market not unreasonable. B. World-Wide Volkswagen, 1980: NY distributor; NY retailer. Car driven to OKblows up. PJ in OK? Court says yeswrit of mandamus. SC: No. 1. Customer took car to OKWW profited back in NY. 2. Product into stream of commerce not enoughmust expect product to reach forum state. Else, every seller of chattels would appoint the chattel his agent for service. a. Brennan: Contacts not necessary. Just balance extent of contacts, fair / reasonable factors. C. Asahi, 1987: Zurcher, motorcycle accident, sues Honda and Cheng Shin, tire-maker. Cheng Shin impleads Asahi, valve-maker. Settlement: now, C-S v. Asahi. (Writ.) Asahi: no direct sales in CA; solicits no CA business; no offices, property, agents; did not design / control system of distribution bringing product to CA. 1. OConnor + 3: Stream of commerce plus a. Confusion about above line from WW: If sale arises b. D must purposefully direct act toward forum state: advertising, sales agent, designing product, etc. c. Not fair + reasonable: shared interest of nations, etc. 2. Brennan + 3 a. Stream of commerce okayforeseeability / benefit = fairness / not fair + reasonable otherwise 3. Stevens a. Doesnt decide on stream of commerce; not fair / reasonable suffices D. J. McIntyre Machinery, 2011: Nicastro injured, sues M in NJ. M incorporated in England, US business through distributorMcIntyre Machinery of America. (OH) 1. Distributor sells all over US at Ms behest. 2. M officials attended Vegas trade shows. 3. Up to 4 M scrap-metal machines in NJbiggest scrap-metal state 4. Some US patents 5. Does not advertise, have offices, pay taxes, own property, have agents in NJ 6. Kennedy + 3: PJ is about submission to authority by purposeful availment 1. Explicit consent 2. Domicile 3. Incorporation 4. PPB 5. P.Aindicates submission to authority. No NJ contact here because no P.A. 2. Free-form notions of fairness cannot transform a judgment rendered without authority into law. 7. Breyer + Alito 1. Single, isolated salestream of commerce not enough; need more a. Unwilling to say stream of commerce never sufficientregular and anticipated flow might do it b. Doesnt join dissentconcern for small manufacturers 8. Gisburg + 2 1. M did not exclude itself from NJ; NJ processes lots of scrap metal; engaged distributor to sell product where it could in US 2. Consent is a legal fictionshould be about fairness 3. Fair + reasonable: steps on toes of no other states (Kennedy would say: inappropriate exercise of jurisdiction always steps on toesNV might be suitable)

VIII. Specific Jurisdiction and Contracts A. Burger King v. Rudzewicz, 1985: BK, Florida, enters into contract with Rudzewicz, in Michigan. BK can sue in Florida on basis of Rudzewiczs contact through contract because 1. Contract governed by law of forum state (availed himself of laws) 2. D reached into forum state to enter into contract, availing himself of benefits 3. Breach of contract caused foreseeable injury to FL plaintiff 4. Payments under contract go to FL 5. Even though a. Rudzewicz spent almost no time in FL and dealt with regional office 6. Use normal fair and reasonable factors in Section VI B. Keys 1. Party not necessarily amenable to suit in forum because other party resides there a. Consider i. Place and manner of negotiation (did D have a choice)? ii. Provisions of contract iii. Experience under contract 2. Choice-of-law provision does not confer jurisdiction 3. Forum-selection clauses usually bind if forum has reasonable relation to state a. Purposeful availmentyou can sue there, too IX. Specific Jurisdiction and Libel (see also and internet) A. Nature of contacts / purposeful availment for writers 1. Is contact directed at the forum market? a. Of particular interest to forum citizens? b. Knowledge that P would be injured in forum state? c. Volume of sales in forum state? i. For national magazines, almost always sufficient contacts d. Sources came from Forum state B. Normal reasonableness factors C. Keeton v. Hustler, 1984: Keeton sues Hustler, national magazine, for libel in NH. 1. Hustler purposefully availed itself of benefits of NH law (sells in NH, etc.) D. Calder v. Jones, 1984: Jones, CA, sues National Enq and writer and editor. 1. Jurisdiction over magazine under Keeton. 2. Jurisdiction over writer, editor, because a. Knowingly wrote about CA resident; b. Subject had particular interest for CA residents; c. P incurred injury in CA; d. Knowingly caused injury to person in CA. X. Specific Jurisdiction and the Internet A. In general, the test for internet contacts is just the test for contacts. Maintaining a website does not confer general jurisdiction. B. Zippo, 1997: Test for specific jurisdiction for websites (though hasnt been dispositive authority) 1. Interactive websites where users buy or sell: jurisdiction 2. Interactive websites where users merely exchange info (Google): maybe jurisdiction 9

3. Passive websites with no interactivity: no jurisdiction C. Jackson v. California Newspapers Partnership, 2005: CA media group posts story on website alleging steroid use; Jackson sues for libel in IL. No specific jurisdiction because 1. Merely maintaining a website does not equal general jurisdiction. 2. Website directed at CA residentsCA weather on site, CA news on site a. Zero IL subscribers to e-newspaper or print newspaperdoesnt aim at IL 3. D did not know Jackson lived in IL 4. Hit was to national, not IL, reputation 5. Otherwise fair and reasonable? a. Burden on D b. IL has little interestno IL subscribers, little chance of repeat c. Evidence in both IL and CA d. Comity? Toss-upinternet is complicated. D. Revell v. Lidov, 2002: Texas resident sues NY website in Texas. No jurisdiction 1. D did not know P lived in Texas, so did not direct activities there 2. Cited no Texas sources 3. Did not think story of particular interest to Texans E. Young v. New Haven Advocate, 2002: Story about CT residents in VA prison. No VA jurisdiction. 1. Paper knew warden lived in VA, but story designed for CT residents, so a. Did not avail itself of VA market. F. If D knows P lives in forum and many subscribers thereprobably jurisdiction. XI. How to Challenge Personal Jurisdiction A. Special appearanceshow up, contest nothing but PJ B. Object in answer or file 12(b)(2) motion C. Collateral attackchallenge when D tries to collect. Risky, can only challenge on PJ grounds. XII. Other Bases for Jurisdiction A. In rem jurisdiction: jurisdiction over a thing (piece of property, etc.) 1. True: court can declare true owner of property (as against the world) 2. Quasi: court can declare who has best claim among litigants a. Type 1: Issue is who owns the propertybetter claim to it b. Type 2: Not issue of propertywant property to satisfy another claim 3. Attachment a. Pre-judgment attachment: Court attaches at outset of case (to give notice of claim to potential buyers) to establish in rem jurisdiction b. Pre-judgment attachment for security: Court attaches property during proceedings if it suspects D might move property to avoid payment c. Post-judgment attachment: Court attaches property after judgment to compel D to pay; court can order sale. (Garnishment of wages) d. Transitive Attachment: Sprint ordered to pay $ to victims, etc. 4. Shaffer v. Heitner, 1977: DE court sequesters Ds shares in Greyhound corp over claim arising out of contacts in Oregon. Held: 10

1. In rem jurisdiction is jurisdiction over a persons interest in property. a. Basically, interest over person himself. 2. So, an exercise of in rem or quasi in rem jurisdiction must satisfy 3-prong Int. Shoe contacts test. a. Usually fine for true and Type 1: property interest is contact. b. Not always for Type IIproperty sometimes unrelated to claim i. You would need the reason D owes $ to come from their owning of that property 3. All assertions of state-court jurisdiction must satisfy Int. Shoe. a. What about in-state service? B. Transient Presence A. Under Pennoyer, service in state is necessary + sufficient for PJ. B. Under Int. Shoe, not necessary. Sufficient? Marshall in Shaffer suggests not, but C. Burnham v. Superior Court, 1990: Burnham and wife agree to divorce in NJ. Wife files for divorce in CA, serves Burnham while he is there on business. 1. Scalia and 3 others: Int. Shoe is a stand-in for physical presence, which has always been sufficient; Int. Shoe is about absent Ds. No absence, no problem. 2. Brennan and 3 others: must satisfy contemporary notions of fair play and substantial justice, but Int. Shoe satisfied here because of purposeful availment business, roads 3. Stevens: dont need to choose; both work D. Corporations under Transient Presence 1. Service on transiently present corporate officer does not confer jurisdiction over corporationlegal entity separate from members. Partnerships, the oppostite. a. James Dickinson State Farm Mortgage Co. v. Harry, 1927: Service on corporate officer not sufficient in state where corp does not do business and is not found, even if officer there on company business. b. First American Corp. v. Price Waterhouse, 1998: Service on one partner in state establishes jurisdiction over partnership. I. Notice and Service of Process A1. Proper service of process requires that the service both be in lines with DPC and FRCP. A. Due Process does not require actual notice, just 1. Notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Mullane a. Means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. Mullane b. Most things are usually fine except for notice by courthouse posting or publication. 2. Jones v. Flowers: Little Rock seizes, resells Jones house because he stopped paying taxes. Commissioner followed statutory scheme, but knew letters had been returned and no actual notice given. In those circumstances, must take reasonable steps to provide notice. a. Argue/ weigh the costs of further options with limited resources, etc. 11

B. Must satisfy both Due Process and FRCP: C. FRCP 3 Commencing Suit 1. An action is commenced when a party files a complaint with the court. 2. FRCP 4(m) Service of process must then occur with 120 days of filing. a. If not, court must i. Dismiss the action; or ii. Order service to be made within specified time. If P shows good cause, a. Court must grant extension. If good cause not shown, b. Court may extend time or dismiss without prejudice. D. FRCP 4: Statutory requirements for notice in the federal courts 1. 4(c) Service of process must include both summons and complaint. 1. 4(b) After P files complaint, presents summons to clerk for signature and seal. If summons meets format requirements, clerk certifies summons and issues it to P so P can serve defendant. a. there is no pre-screening. Could be completely frivolous at this point. 2. 4(a), Form of summons. A summons must a. Name the court and the parties b. Be directed to the defendant c. State name and address of Ps attorney, or, if unrepresented, P d. State time within which D must appear and defend e. Notify D that failure to appear and defend will result in default judgment for relief demanded in complaint f. Be signed by the clerk g. Bear the courts seal 3. 4(c), Service (who can serve) a. Summons must be served with copy of the complaint, by anyone i. Not a party to the suit, and ii. Over 18 years of age 4. 4(d), Waiver of service a. Ds with a duty to waive service: i. D in judicial district litigating the case; ii. D located in foreign country at time of service; iii. D corporations, partnerships, associations b. Form of waiver request: Must: i. Be in writing and addressed to D; ii. Be sent via first-class mail or other reliable means; iii. Be accompanied by copy of complaint; iv. Identify court where complaint filed; v. Informed D of consequences of waiving / not waiving service; vi. State date on which request was sent; vii. Allow D reasonable time to return waiver a. 30 days for D within judicial district, 60 outside viii. Provide D with extra copy of request and postage c. Time to answer after waiver i. D who waives must answer complaint within a. 60 days after waiver request (90 if outside U.S. judicial district) 12

b. increased from normal time as a benefit/incentive d. Failure to Waive i. If D within U.S. fails without good cause to sign and return waiver on P located within U.S., court may a. Order D to pay expenses in making service b. Order D to pay reasonable expenses in motion to collect expenses e. Statute of Limitations Trap i. FRCP 4(d)(4) service of waiver occurs when the waiver is returned. This can effect SOL that put the limit on date of service. 5. How to Serve types of parties a. 4(e), Serving a natural person i. As permitted by law of the state in which the federal court is located, OR ii. As permitted by law of the state in which P serves process on D, OR a. Mail, commonly iii. Deliver process to D personally (in-hand service); iv. Leaving copies at Ds dwelling or usual place of business with someone of suitable age and discretion who resides there; v. Deliver summons and complaint to agent of defendant authorized by appointment (old folkspower of attorney) or law (Hess) to receive service of process b. 4(g) serving a child/incompetent i. p. 63 of course pack. c. 4(h), Serving a domestic corporation or other entity i. As permitted by law of state in which the federal court is located; OR ii. As permitted by law of state in which P serves process on D; OR iii. Deliver copy of summons and complaint to officer, managing agent, or general agent of entity (like a CEO); iv. Deliver papers to an agent authorized by appointment or law to receive process (often Secretary of State for corporations in state); c. 4(f), Parties outside U.S. (see class notes pre-trial; PJ; service of process) d. Last Resort i. Rule 4 provides judge to use discretion to authorize service by alternative method. ii. Publication disfavored. Gaeth v. Deacon: Not allowed after comp. search. 6. 4(l), Proving Service i. By servers affidavit, under penalty of perjury. E. Personal Jurisdiction and Service; Not the Same Thing 1. Under Pennoyer, cant serve process in State B for offense in State A; states authority runs to border and no further. 2. Under Int. Shoe, within due process for State A to reach into another to hale D into court. Since authority runs past border, process can be served out of state. II. Venue (waivable) A. Refers to particular court within court system where P may file suit 1. Federal courts: 94 districts, each a venue. States: many venues (OH, 88) 13

B. Venue requirements exist to ensure: 1. Court is conveniently located and 2. Has some relationship to the lawsuit, or 3. To one or both of the parties C. Point is to ensure location of suit is reasonable and convenient, given location of evidence, witnesses, and D. D. The General Venue Statutes 1. 28 U.S.C. 1391(a) In civil action based on diversity, venue lies in a. A judicial district where any D resides, if all Ds reside in same state; b. A judicial district in which a substantial part of the events or omissions giving rise to claim occurred, or a substantial part of property at issue is situated; or c. A judicial district in which any D is subject to personal jurisdiction, if no other district where venue is proper. i. Subsection 3 (c, above) never applies if proper venue under 1 or 2 exists 2. 28 U.S.C. 1391(b) In a civil action not based solely on diversity, venue lies in a. A judicial district where any D resides, if all Ds reside in same state; b. A judicial district in which a substantial part of the events or omissions giving rise to claim occurred, or a substantial part of property at issue is situated; or c. A judicial district in which any D may be found, if no other viable venue (possible that only proper venues will not have PJ). i. Subsection 3 (c, above) never applies if proper venue under 1 or 2 exists a. Usually crops up for claims arising outside U.S. 3. Resides , Meaning of a. For individualsdomicile b. For corporations28 U.S.C. 1391(c) i. For venue purposes, a corporation resides in: a. Every judicial district in which it is subject to personal jurisdiction when action is commenced b. If state has more than one district i. In any district in that state within which contacts are sufficient to subject it to personal jurisdiction if that district were a separate state; c. If no such district i. The district in which it has the most significant contacts c. Non-corporate entities (partnerships, etc.) i. usually considered as a corporation. Sometimes as a collection of individuals. d. Residence determined at time action was commencedso, if you waive personal jurisdiction, you can still object to venue e. Non-corporate entities: MacCallum: treated like corporations for venue 4. Substantial part test a. Most courts look to entire sequence of events leading to claim, not a single triggering event. Broad. Doesnt even have to include all Defendants. i. Uffner: suit over insurance contract in England, France, Georgia for sunk boat. Venue is proper in Puerto Rico because the insured boat sank there. a. Hardly furthers convenience and reasonableness th b. 8 circuit test 14

i. D must be responsible for forum-related event ii. Event must be point of dispute between parties 5. Specialized venue statutes: supercedes normal venue rules. a. 1402 FedGovt: where Plaintiff resides or incident at issue occurred b. 1400 copyright and patent infringement c. 2000 employment discrimination cases i. any judicial district in the state allegedand more (p. 371) E. Transfer of venue 1. Which rule to use: Bad Venue Good Venue Transfer USC 1406 USC 1404 Dismis USC 1406 Forum non conveniens 2. Transfer for improper venue a. 28 U.S.C. 1406, Cure or Waiver of Defects i. If venue is improper, District Court shall dismiss, or intra-system transfer to a venue where the case could have been brought, if it is in the interests of justice. a. Transfer, not dismissal, usually in interests of justice i. Dis. subjects P to refiling costs, re-service, SOL b. 28 U.S.C. 1404, Change of Venue (even if original venue is proper) a. For the convenience of parties and witnesses, in the interests of justice, District Court may transfer to any other district or division where it could have been brought. b. Defendant seeking change of venue must show: i. P could have brought claim in transferee venue under 1391 (SMJ, PJ, Venue); ii. Case by case, Considerations of convenience and interest of justice weigh in favor of transfer: a. Private-interest factors (Private alone not enough to override Ps choice of forum i. Ps choice of forum a. Usually given deference unless other factors strong ii. Ds choice of forum iii. Whether claim arose elsewhere iv. Convenience of parties v. Convenience of witnesses vi. Ease of access to evidence b. Public-interest factors i. Transferee courts familiarity with governing laws ii. Relative congestion of dockets iii. Local interest in deciding this case at home (comparative) iii. MacMunn v. Eli Lilly Co., 2008: DES case is transferred from DC to MA, where P lives and where ingestion of DES occurred. c. Limits on transfers: no intersystem i. No state to federal, federal to state, or state to state 15

d. Intrasystem transfer limits i. Transferee court must have SMJ, PJ a. Ds used to argue they would have waived PJ i. Hoffman: could have been brought includes without need for waiver ii. 1404(b): can transfer to any division within the court district III. Forum non conveniens A. Judges lack authority to transfer case out of own court system. If convenience / justice suggest case can and should be heard in a foreign jurisdiction, judge can dismiss the case. 1. Forum non conveniens is a common-law doctrine B. Forum non conveniens: the test 1. Is there a suitable alternative forum? a. If not, dont dismiss i. Clearly unsatisfactory remedy? ii. D not amenable to process? b. If there is, proceed 2. What is Ps choice of forum? How much weight to accord? a. More weight if home forum b. Less if chosen for favorable law i. even where capped at $2,500 Gonzalez v. Chrysler Corp. 3. Private-interest factors a. Ps choice of forum b. Ds choice of forum c. Whether claim arose elsewhere d. Convenience of parties e. Ease of access to evidence f. Any 3rd Party Defendants that can get in there i. have it all out at once; dont want inconsistent verdicts and need their testimony 4. Public-interest factors a. Transferees familiarity with governing laws b. Relative congestion of dockets c. Local interest in deciding controversies at home d. Having to learn the foreign law 5. Narrow exception for clearly unsatisfactory remedy: if inadequate, unsatisfactory, no remedy available, no forum non conveniens dismissal. a. Rasoulzadeh: Denied; P would be killed for bringing action in Iran. b. Plymouth Whalers: Denied; Canada offered administrative procedure unlikely to yield remedy, not trial. c. Gonzales v. Chrysler: Granted; Mexico site of purchase / accident; $2500 cap in wrongful death. C. Piper Aircraft v. Reno: CA resident sues CA over Scotland plane crash; case ends up in PA. Because Scottish law might govern, P not in Scotland because US has better law, Ds cant implead Scottish 3rd-party Ds, and case can be brought in Scotland, dismissal granted. 16

D. See general outline for state variations, rise of 1404 transfer (1948)

Pleading
A. A paper containing allegations (factual assertions) supporting 1. Jurisdiction 2. Legal claims 3. Demand for relief (if Complaint) A1. WHY pleadings? 1. give notice 2. state facts 3. narrow issues for litigation 4. help court throw out bogus claims early B. Historical purposes p.410: *. Two values in pleading consantly at war : Substantive justice v. ease of processing claims (notes) 1. Help court throw out bogus claims (always) 2. At common lawnarrow issues for litigation 3. Fact or code pleadingstate facts to weed out insufficient claims 4. Federal Rulesgive notice of nature of claim or defense a. Questions after Twombly, Iqbal C. FRCP 7(a): Pleadings Allowed a. Complaint b. Answer to complaint c. Answer to counterclaim d. Answer to cross-claim e. Third-party complaint f. Answer to third-party complaint g. Reply to answer, if ordered by court h. FRCP 7(b): Motions i. requrest for a court order 12(b) = MTD; 12(c)= judgment on pleadings (56)=SJ D. FRCP 11: Representations to Court and Sanctions a. Every pleading and written motion and other paper filed with court must be signed. b. Signature certifies that, to best of persons knowledge, information, and belief, formed after a reasonable inquiry under the circumstances: 11(b) i. Document not prepared for improper purpose: harass, delay, increase costs ii. Legal contentions warranted by existing law, or non-frivolous arg for changing it iii. Factual contentions have evidentiary support, or if specifically so stated, will likely have evidentiary support after reasonable opportunity for further investigation or discovery iv. Denials of factual contentions are warranted on the evidence, or, if specifically so stated, are reasonable c. If court finds any above representations are untrue, it has discretion to impose sanctions on party or attorney. i. Motion for sanctions a. Party may not file motion for sanctions without first serving motion on opposing party 17

i. Opposing party has 21 days to withdraw or correct offending document ii. Court may still impose sanctions sua sponte. iii. Nature of sanction limited to what suffices to deter repetition of conduct or comparable conduct by others. E. FRCP 8(a)The Complaint 1. A pleading that states a claim for relief must contain 3 things (a,b,c): a. Short and plain statement of grounds for courts jurisdiction; b. 8(a)(2): Short and plain statement of the legal claim. 1. Form 11 Requirement a. time and date of accident, for fair notice to defendant/ res judicata. 2. Twombly-Iqbal test for sufficiency of pleadingpleading must contain sufficient factual matter to state a plausible claim; must show more than mere possibility of illegal conduct, a. Subtract everything that is conclusory; i. a formulaic recitation of the elements wont do. (legal conclusions) b. Treat remaining well-pleaded (not conclusory) facts as true; c. Draw all plausible (not just conceivable) inferences from facts; i. Key question: are well-pleaded facts equally consistent with an alternative, lawful account of Ds conduct? If so, allegations do not plausible support Ps legal conclusions; complaint should be dismissed. aa. Must nudge his complaint across the line from conceivable to plausible 4. All necessary elements for claim to succeed must be present in b or c. ii. See notes for contrast with Conley 1. Conley v. Gibson, 1957 Black RR workers complaint against the Union survives a motion to dismiss for failure to state a clam because: a complaint should not be dismissedunless it appears beyond doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Essentially remove part a, still needed facts for fair notice purposes. iii. Critiques of Iqbal/Twombly a. Defendant is in almost exclusive control of these kinds of facts before discovery (protects corporations and the government.) b. hurts Plaintiffs who lack resources for pre-filing investigation c. unpredictability as judges are left to decide based on their own common sense whether or not this is plausible. d. Infringing on facts usually tried by Jury. e. Discovery costs cant be the only reason, discovery can be really hard with perfectly specific allegations and have no efficiency issues. f. To show discrimination from boss basically have to argue evid. facts iv. Defenses of Iqbal/Twombly a. expensive and growing cost of discovery generous pleading would allow cases to be brought for anything i. huge companies, lots of employers, etc. ii. Plaintiff hasnt given us any clue where to look, could just be a 18

wild goose chase for nothing. b. return to traiditional view of pleading of Defendant notice of logically coherent theory of liability c. A statement of relief sought d. 8(d) i. A pleading may state inconsistent claims or defenses. a. Versus pleaindg yourself out of court, facts that show you cannot leagally recover (ex: how long youve known of claim for SOL). ii. A party may set out alternative statements of a claim or defense. iii. Pleadings must be construed as to do justice; defects ignored if not party prejudiced. iv. Parties must plead simply, directly, and concisely. No technical forms. v. Use general terms and omit evidence, unless heightened pleading required. 2. FRCP 9: Pleading Special Matters i. WHY heightened pleading in some cases (p.438)? a. fair notice of exactly what Plaintiff is talkinga bout b. protecting reputation c. protecting the publics money d. suspect plaintiffs i. 9(b) Must plead fraud or mistakewith particularity. But malice, intent, knowledge and other conditions of the mind may be pleaded generally. i. avoided/skirted in Iqbal/Twombly a. Fraud: many elements (reliance, etc.); maybe long history of dealing b. Mistake: Good Ship Peerless: conflation of two ships; notice ii. So too with special damages a. General damages are foreseeable for D; not special ones i. Fairyland Amusement: Defamation claim dismissed for failure to plead loss of patronage iii. Leatherman: 5th circuit requires heightened pleading for civil rights claims against municipalitiesdetailed facts. Rulemakers, not courts, change the Rules. 3. See general outline for Twombly / Iqbal

I. Responding to the Complaint A. When served with complaint, D has three options: do nothing, MTD and/or answer: 1. Doing Nothing; FRCP 55: Default and Default Judgment WHY?: Dont know, judgment proof, risk that they wont collect, no PJ (risky) 19

A. 55(a) Party against whom relief is sought fails to plead or otherwise defend within 21 days of service, and failure is shown by affidavit, clerk must enter default. (also serve the Defendant). 1. 8(b)(6)means that they have admitted all factual allegations in the complaint 2. Just an entry on the docket, not a final judgment until later; 3. Can be set aside for good cause 55(c) B. Default Judgments: If complaint, viewed in light most favorable to P, states a claim: 1. If request for sum certain, clerk must enter judgment for that amount. 2. If not for sum certain, party applies to court. a. If party in default has appeared, must be served with notice of application at least seven days before hearing. b. Court may conduct hearing to: i. Conduct accounting ii. Determine amount of damages iii. Establish truth of any allegation iv. Make any investigation 3. Hard to set aside default judgment move under FRCP 60(b) a. Plaintiff reliance, was default willfull, meritorious defenses, PJ? 4. Virgin Records v. Lacey: Process for entry of default, default judgment. No need for hearing, because D requests minimum allowable damages under law. 2. MTD; FRCP 12Motion to Dismiss A. If 12(b) defense asserted by motion before answer, 21-day clock stops. 1. If motion is denied, D has 14 days to serve responsive pleading. B. Rule 12(b) grounds for dismissal 1. 12(b)(1) lack of subject-matter jurisdiction 2. 12(b)(2) lack of personal jurisdiction 3. 12(b)(3) improper venue 4. (b)(4) insufficiency of process a. contents of process / notice defective under Rule 4 5. 12(b)(5) insufficiency of service of process a. Means of service were defective under 4(e) or (h) 6. 12(b)(6) failure to state a claim upon which relief can be granted a. Three ways i. Failure to plead enough facts to meet Twombly-Iqbal ii. Even if all facts are true, no law permitting recovery iii. P pleads herself out of court a. Establishes an affirmative defense (SOL) b. Pleads facts disproving element of claim b. in deciding court is limited to the four corners of the complaint. c. Plaintiffs will usually have a chance to amend, either given or FRCP 15 motion. 7. Rule 12(b)(7) Failure to join a party under Rule 19 a. Party required for just adjudication under Rule 19 standard, but joinder is not feasible C. FRCP 12(g) Required Joining of Motions (The Omnibus Motion Rule) 20

(6)

1. Party making a Rule 12 motion cannot make another one that raises a defense or objection that was available but omitted at the time of the first motion. a. So, only one pre-answer motion permitted. b. But if new defense becomes available after amendment (not just more clear), defense can be asserted. Ex: Plaintiff amended claims D. Rule 12(h) Waiving and Presenting Defenses: Waiver trap 1. A party waives a 12(b)(2)-(5) objection by not asserting it in either the preanswer motion, or, if there is none, if the first responsive pleading. a. because they typically just delay a lawsuit rather than end it. b. these kinds of defenses ought to be decided up front 2. 12(b)(1), lack of subject-matter jurisdiction, is never waived 3. 12(b)(6)-(7), failure to state a claim and join required party must be made in pre-answer motion; if not, in answer; if not, by 12(c) motion; if not, at trial. i. only waived if not brought up before end of trial. aa. protect 3rd parties that want to be joined ab. Discovery can be helpful ac. Want to get rid of dumb trials 4. 12(e), motion for a more definite statement (pleading is so vague party cant respond) must be raised in pre-answer motion. i. If granted, other party has 14 days to obey order, or court may strike pleading ii. If granted, second pre-answer motion asserting 12(b) defense might be permitted (if defense was unavailable for vagueness) 5. 12(f) motion (to strike insufficient defense or redundant, immaterial, or scandalous matter) must be made before responding to pleading i. If response not allowed, within 21 days of service with pleading ii. Court may also act on its own iii. For insufficiency is Ps 12(b)(6) iv. only done if 1. The information is irrelevant to the legal claim and 2. Significantly prejudices Defendant. v. Extremely disfavored to use against Plaintiff. 6. Motion for judgment on the pleadings: 12(b)(6) motion made after pleadings are closed. 7. 12(d): On 12(b)(6) or 12(c) motion, if matters outside pleadings are introduced and not excluded by the court, motion treated as Rule 56 motion for summary judgment. E. Matos v. Nextran: Nextran moves under 12(b)(6), 12(f), 12(e). Only one 12(b) granted; other motions are foolishness. Standard for 12(f). F. Hunter v. Serv-Tech: Hunter sues. Offshore moves under 12(b)(5); after amendment, tries to move under 12(b)(2). Waived personal jurisdiction by failing to include in pre-answer motion. Cannot reserve right to make later 12(b) objections. G. Reis Robotics v. Concept: Court strikes affirmative defenses not adequately pled 21

under 8(a) Iqbal /Twombly (split on this p. 496 ), strikes insufficient / immaterial matter, dismisses counterclaim for fraud not pled with particularity. 3. Answering; FRCP 8(b)The Answer a1. What you can do in an answer i. assert unwaived defenses (1,6,7, 2-5 if not waived) ii. admit or deny allegations iii. raise affirmative defenses iv. assert counterclaims or crossclams a. Four possible responses to allegations in complaint (admit or deny) i. AdmitP need not prove that which D admits ii. DenyP must prove what D denies iii. Lacks knowledge or information sufficient to form a belief a. Has effect of a denial b. Must make reasonable inquiry under the circumstancescant say you dont know something you can learn easilyRule 11 iv. General denialdeny every single allegation in complaint a. Rare to be able to do thisP almost never alleges all lies b. If court determines D did not intend in good faith to deny every single allegation, then general denial is ineffective; D is deemed to have admitted entire complaint. Court enters judgment for P. b. Failure to respond i. If you fail to deny an allegation, it is admitted ii. If responsive pleading not required, allegation considered denied a. Answer is allowed for a claim of any kind. c. 8(b)1(B) Must fairly respond to substance of each allegation i. 8(b)(4) Partial denialsD must distinguish between subparts of each allegation, even phrases within sentences, and specify which parts are admitted, denied, etc. ii. cant be vauge with language.. to the extent that d. Additional material D must include in answer i. 8(c) Affirmative defenses (list not exclusive: damages caps) a. Defenses admitting substance of allegation, but alleging some additional reason it should not have its ordinary legal effecta reason P should not recover anyway i. Must be pled in answer or amended answer; otherwise waived ii. Rule seems not to require normal 8(a) pleading standard a. requires 8(b)(1)(A) short and plain standard iii. Ingraham v. US: Affirmative defenses must be raised in response to a pleading; D must not lie behind a log. (Probably allowed by amendment unless prejudicial to P.) a. we dont want Plaintiff not to prepare evidence, etc. b. more policy rationale on p. 448 ii. 13(g) Compulsory counterclaims a. Claims D has against P that arise out of the same transaction or occurrence as Ps claim 22

e. D may include i. 13(b) Permissive counterclaims a. Claims D has against P that dont arise out of same &etc. b. Any unwaived 12(b) defenses. c. Crossclaims against other Ds e. Timing i. Answer must be filed within 21 days of service with complaint a. Dont count day of service b. Period runs through weekends and legal holidays c. Unless service waived under 4(d)60 in US, 90 outside US ii. Party served with counterclaim or crossclaim has 21 days to respond iii. Party ordered to reply to an answer21 days after being served with answer. II. Amending Pleadings I. Rules allow for more liberal amendment to pleadings before trial A. FRCP 15(a)(1), Amendment (as of right) 1. 15(a)(1)(A) P may amend complaint once within 21 days of serving it, 2. 15a1B Within 21 days of D serving an answer or filing 12(b), 12(e), 12(f) motion, whichever is earlier 3. 15a1A D who files an answer without a counterclaim may amend once within 21 days of serving it 4. 15a1B D who files an answer with a counterclaim (responsive pleading required) may amend once within 21 days of P serving an answer (or within 21 days of Ps Rule 12 motion) 5. 15(a)(1) For all parties, one bite at apple: amended pleading does not start a new 21day period. Amendment as of right is allowed only once. B. 15(a)(2) Amendment more than once, or outside period allowed: 1. May get other partys consent 2. Or, may amend by leave of court a. Court should grant leave to amend freely, when justice so requires. Court considers: i. Reasons for amendment a. Discovery of new facts? New legal theory? Deliberate delay? ii. Amending partys diligence iii. Prejudice from amendment in general a. To movant if denied, nonmovant if granted iv. Whether amendment is futile a. If wouldnt survive MTD, wont be allowed; or, if wont relate back v. Partys history of amendments vi. rarely deny: undue burden bad faith, prejudice, repeated failure to cure futility (waste of time. Cant survive a motion to dismiss). b. Beeck v. Aquaslide: D allowed to amend when it found new facts just before trial that it wasnt their slide; court considers above factors. c. New legal theories often allowed as well, based on above factors. 23

C. An amended pleading is a new pleading. 1. If response required, must be made within time remaining to respond to original pleading, or 14 days after service of amended pleading, whichever is later D. If MTD granted before amendment occurs, court often grants with leave to amend 1. Enters final judgment on dismissal only if no amendment before date certain E. FRCP 15(b) Amendments During Trial 1. 15(b)(1) court could: 1. permit amendment if when doing so aids in presenting merits and no prejudice (likely to have come across that evdience already); 2. Grant a continuance for them to go research this; 3. Sustain objection b/c there is bad faith, not allowed to amend. 2. 15(b)(2) Waiver of amended pleadings a. If you dont object and Plaintiff adds compalints in trial youve impliedly consented. i. ALWAYS object to any evidence that is irrelevant to the original claim. ii. example, original (Form 11 negligently drove car against me) in trial say he intentionally drove car against me. F. FRCP 15(c), Relation Back 1. If SOL runs between time the first pleading was filed and the amended pleading is filed, 15(c) allows for relation back so pleading satisfies SOL if: a. For state law claims, if state law allows it; b. For new claims against existing party, if amendment arises out of conduct, transaction, or occurrence set out in original pleading; i. but for relationship not enough (false imprisonment, releasing record) c. For new claims against new parties, i. Same transaction or occurrence ii. Party had notice of claim within 120 days of filing and iii. Knew or should have known that, but for mistake, claim would have been against it. a. Hospital changes name, receives complaint styled toward old name. b. harder questions with Jane Doe lawsuits d. Purpose is notice: if same transaction, D has preserved evidence related to conduct. e. Moore v. Baker: Moore seeks leave to amend. Amendment (negligence during surgery) would not relate back because it arose out of different transaction than original claim (no informed consent before surger) . So, leave is not granted, because amendment would be barred by SOL and therefore futile. f. Azarbal: Amendment does relate back. P wants to add claim that MD didnt get her informed consent before sterilization procedure because he withheld info that fetus was damaged during amniocentesis; original complaint alleged negligence in amniocentesis. Original complaint provided adequate notice, so same transaction; amendment relates back. g. Threshold issue is always leave to amend; sometimes, relation back is intertwined because no relation back = futile. Still have to satisfy 15(a) reqs.

Joinder of Claims and Parties

24

I. Generally, the Rules are liberal about joinder. A. Efficiency, efficiency, efficiency B. Complete resolution of all disputes between parties while theyre in court II. FRCP 18: Joinder of Claims A. A party may join as many claims as it has against an opposing party (even unrelated). a. If joinder would lead to jury confusion or prejudice, court may sever claims for separate trialsFRCP 42. b. Note: claim preclusion often bars bringing a related claim later. B. WHY? Policy rationale 1.Efficiency, get all taken out at once 2. Settlement C. HOW? 1. Put them as separate claims for relief in complaint. FRCP 8. D. 18(b) Contingent/dependent claims can be joined too. III. FRCP 17: Plaintiff and Defendant; Capacity to Sue (SR p. 84) A. 17(a): Real party of interest, with exceptions B. 17(b): Capacity to sue or be sued individual, corporation, etc. 1. Individuals law of domicile a. Historical issues with slavery and women/coverture. 2. Corporations law of state incorporated a. exception for partnerships check notes C. 17(d): Government official for $ (individual) for injunction (official name) 1. If you sue the official you get automatic substitution under FRCP 25 IV. FRCP 25: Substitution A. see SR p. 93 in cases of death, incompetency, etc. V. FRCP 20: Permissive Joinder of Parties Note: Does NOT Confer PJ or SMJ always check!! A. 20(a) Plaintiffs may join in an action if: 1. They assert a right to relief arising out of a common transaction or occurrence or series of transactions or occurrences; and 2. There is any question of law or fact common to all plaintiffs. a. Common transaction i. Hands Dye: 2 Ps sue contractor, subcontractor, insurer, tester over pillar that failed: all claims arise from construction of pillars; joinder proper. ii. Demobski v. CSX Transportation: 4 Ps who were run over by the train at different times could not join, not same occurrence. iii. Mosley: joinder allowed where 20 Ps from different divisions sued GM for discrimination policy. b. Common question of law or fact almost always satisfied if transaction is i. Hands Dye: were the Ds negligent in manufacturing. B. 20(b) Defendants may be joined when 1. The claim asserted against them arises from the same transaction, occurrence, or series of the same; and 2. Common question of law or fact common to all Ds i. Not required to sue all Ds togetherlimitations on jurisdiction, etc. ii. May sue alternative Ds in same action 25

3. Hohlbein v. Heritage Mutual Ins. Co: P can join four Ds on fraud claim. Common question: whether company had policy of fraud. Common transaction: continuing pattern or practice of treatment. VI. FRCP 21. Misjoinder, Nonjoiner A. Not a ground for dismissing action. 1. On motion or on its own, court may on just terms add or drop party, sever claims (prejudice ex Hohlbein). VII. FRCP 42. A. Authorizes court to order separate trials for convenience, to avoid prejudice, or to expedite / economize. Can separate any claims or issues. VIII. FRCP 13: Counterclaims and crossclaims A. Counterclaim: a claim against a party that has already brought a claim against you 1. 13(a) Compulsory counterclaim a. A counterclaim that arises out of the transaction or occurrence (test in general outline Joinder of claims and Parties; Joinder I) that is the subject matter of the opposing partys claim must be stated in responsive pleading. Cannot otherwise be brought later. b. So, must be asserted within 21 days (with another 21 to amend) c. TEST i. Same transactin/occurrence as original issue ii. Doesnt require adding a party without jurisdiciton iii. at the time of its service it exists 2. 13(b) Permissive counterclaim a. A pleading may state a counterclaim against an opposing party that doesnt arise from the same transaction or occurrence as the original claim. 18(a) for Ds i. Likely separated for trial B. 13(g) Crossclaim 1. A claim against a coparty (P1 v. P2 or D1 v. D2) a. Crossclaim are always permissive, never compulsory. Not waived if not asserted. b. A crossclaim must arise out of the same transaction or occurrence as original claim. a. May include a claim that party is liable to pleading party for claim against the pleading party. C. 13(h) Once a counterclaim or crossclaim is filed, other parties can be joined to it under FRCP 19 and 20. 1. Cant bring in a new party by way of crossclaim; must be asserted against existing party first before a new party is added to it. 2. 28 U.S.C. 1367 covers supplemental jurisdiction on counterclaim and crossclaim

IX. Third-party Joinder: Impleader A. FRCP 14 After D serves answer, may serve summons and complaint on nonparty which may be liable for all or part of Ps claim against D. 1. D becomes third-party plaintiff; new party is third-party defendant (need PJ) 2. Service: Within U.S. judicial district not more than 100 miles from where summons 26

issued. B. Two ways of passing on liability: 1. Contribution a. Impleading a new party that contributed to Ps injury. Must be allowed by jurisdiction. 2. Indemnification a. Often based on contract, like insurancenew party has agree to reimburse D in action of this type 3. Cannot implead a party directly liable to plaintiff only a. I didnt injure you, X did is not a basis for impleader 4. Cannot implead to collect for your own injuries a. Has to be connected to the Plaintiff. C. Erkins v. Case Power: Case, manufacturer of backhoe, allowed by NJ law to implead contractors in contribution as joint tortfeasors for negligence in not doing safety talks. D. Timing and Leave of Court 1. May file by right within 14 days of answer 2. After 14 days, only by leave of court. Court considers: a. Is motion timely? State of litigation? b. Will impleader unnecessarily complicate litigation? c. Will it delay trial? d. Will it prejudice original plaintiff? E. Third-party defendant Procedures 1. Must assert any Rule 12 defenses, like normal 2. Must assert 13(a) compulsory counterclaims, like normal 3. May assert 13(b) permissive counterclaims and 13(g) crossclaims, like normal 4. May assert against original P any defense to Ps claim against impleading Defendant i. Defending the defendantthat claim is basis for 3rd-party Ds liability 14a2C 5. 14(a)(2)(D) May assert against P any claim arising from same transaction or occurrence that is subject matter of Ps original claim i. Makes them opposing parties, triggering Rule 13 requirements for crossclaims 6. May serve summons on fourth-party defendant who may be liable to it 14(a)(5) F. Original Plaintiff 1. May assert against third-party D any claim arising out of same transaction or occurrence that is subject matter of original claim a. Done by amending original complaint b. Makes original P and third-party D opposing parties, triggering Rule 13 c. Third-party D must / may then assert all relevant defenses, claims 2. If a counterclaim or crossclaim is filed against the original P, she can implead third party if Rules would allow D to do so. (Plaintiff can also implead 3rd Party). X. Rule 19: Required Joinder of Parties A. While the plaintiff is generally master of her complaint, Rule 19 requires joinder of parties if it would be manifestly unfair to litigate the suit in their absence. (Service: same as impleader). Usually brought up by a 12(b)(7) motion to dismiss for failure to join req party. 1. Step One. Is the person a required party who must be joined if feasible? 27

a. A party is required when, in that persons absence: i. The court cannot grant complete relief among existing parties, or aa. Two people sold lot to Plaintiff fraudently, need both to get back $. ii. The party claims an interest related to the subject matter of the action, and an adjudication in their absence may a. Practically, impede or impair the absent partys ability to protect his interest, or i. Andean v. Secretary of the US Army: husband protecting his pension $ from plaintiff ex-wife suing army b. Leave an existing party subject to substantial risk of incurring double, multiple, or otherwise inconsistent obligations. i. Haas v. Jefferson National bank, other owner of stock may later claim 100% interest in stock from bank double obligations. ii. Landfill case, EPA necessary or else landfill may have inconsistent obligations/regulations placed on it. 2. Step Two. If the person is required, is joinder feasible? a. If feasible: i. Make them a party and continue the case b. Not feasible if (continue to step 3) i. No PJ ii. Could destroy complete diversity (SMJ) iii. Could make venue improper (often predicated on all Ds living in one state) iv. Some other exotic reason (sovereign immunity for indian tribe) 3. Step Three. If joinder is not feasible, can the court in equity and good conscience proceed with the action in the partys absence? 19(b) Court considers a. Extent to which judgment without joinder might prejudice that person or existing parties; b. Extent to which prejudice could be lessened or avoided by i. Protective provisions in judgment; (p.644) ii. Shaping the relief; iii. Other measures c. Whether judgment rendered in that persons absence would be adequate; d. Whether P would have adequate remedy if case dismissed for nonjoinder. 4. Torrington Co. v. Yost: New company INA is a required party because its absence could expose Yost to conflicting contractual obligations and INA cannot guard against its interest in new employee ; joinder is not feasible because it would destroy diversity; suit should be dismissed because prejudice cant be lessened, and Plaintiff can just file in state court. 5. Republic of the Philippines v. Pimental: Republic and Commission are required parties because their absence could expose Merrill Lynch to multiple obligations; joinder is not feasible because they assert sovereign immunity; suit should not proceed anyway because remedy would not be adequate (not settled in full), no way to reduce prejudice, and P, Merrill Lynch, can move to dismiss under 12(b)(7) if a party files another action and Republic and Commission against assert sovereign immunity. XI. FRCP 24: Intervention 28

A. Allows non-party with interest in an action to assert that interest; allows stranger to a suit, which has stake in the proceedings, to join in. (often public interest/ industry ) 1. 24(a) Intervention of Right a. On timely motion, court must allow party to intervene if party i. Is given unconditional right to intervene by federal statute, or ii. Claims interested related to property or transaction that is subject of action, and a. Disposing of the matter may impair or impede its ability to protect its interest, and b. Interest is not adequately represented by existing parties. b. Is the motion timely? Balance: i. Stage of lawsuit ii. Purpose of intervention iii. When party knew of action / interest iv. Prejudice to original party c. Bisanz Brothers: Ford moves to intervene when property owners sue RR to close storage tracks; Ford would not be able to operate auto plant. Ford, as a party, can block a settlement. 2. 24(b) Permissive intervention a. If non-party cant intervene by right, court may permit intervention if i. Federal statute allows a conditional right to intervene; or ii. Non-party has claim or defense that shares common question of law or fact with primary action. b. Court considers: i. Complexity of action and complexity of claim or defense ii. Length of time action has been pending iii. Delay / prejudice likely to result c. Very broad. Could intervene in suit for products liability if injured by same (broader than standard under 20(a) joining parties). XXII. FRCP 22: Interpleader A. Used where P has some property that would expose P to multiple liability from adverse claims. Stakeholder can file action in interpleader to resolve liability where there are two or more adverse claimants. Decides who gets property. B. Statutory Interpleader: 1335, 1397, 2361 a. 28 U.S.C. 1335: Subject-matter Jurisdiction i. District courts have original jurisdiction in interpleader actions when a. Party is in possession of money or property worth $500 or more; b. Two or more adverse claimants are diverse; (minimal diversity) c. P deposits money with court or gives bond of compliance; d. Allowed even if claims not of common origin b. 28 U.S.C. 1397: Venue i. May be brought in judicial district where one or more claimants resides. c. 28 U.S.C. 2361: Personal jurisdiction (and no later action on property) i. Court can issue process and enter order in any state or U.S. court. Nationwide personal jurisdiction, even in absence of contacts within that state. Just need 29

minimum contacts in the United States at large. (5th Amd. DPC). d. Why Statutory over Rule? i. easier to get SMJ ii. easier to get PJ iii. Only time you would use rule interpleader is if all claimants from same state C. Rule Interpleader; FRCP 22 a. By Plaintiff. Persons with claims that may expose P to multiple liability may be joined as Ds and required to interplead. i. Joinder is proper even if claims lack common origin b. By Defendant: D may seek interpleader through crossclaim or counterclaim. c. Normal contacts analysis for PJ d. Diversity compares citizenship of stakeholder to that of all defendants i. Complete diversity required (claimants vs. plaintiff/stakeholder) e. Normal 1332 amount-in-controversy requirement f. Normal 1391 venue requirements D. Pie-slicing interpleader a. P may interplead defendants if their claims might expose it to multiple claims. E: Complaint a. State jurisdiction, venue, etc., why proper b. Claim: Exposure to multiple liability c. Prayer for Relief: pay stake into court and bow out d. 2361 and Rule authorize injunctions barring Ds from later action V. Supplemental Jurisdiction A1. WHY do we have Supp Jurisdiction? 1. otherwise we waste judicial resources with two cases that try the same material facts. 2. or we end up with cases in state court and we dont like Fed Law in state court. A. Liberal joinder creates subject-matter jurisdiction problems. Nothing in Article III, Section 2 explicitly authorizes courts to hear related state claims in federal cases. 1. Gibbs v. United Mine Workers: Gibbs sues under federal law and joins state claim. Held: Federal courts have pendant jurisdiction over state claims that arise from the same nucleus of operative fact as the federal claims to which joined. OLD Gibbs Rule: a. A federal court has pendent jurisdiction to hear a state-law claim that arises from the same nucleus of operative fact as the federal claim to which it is joined. i. focuses on facts, not legal theories a. facts are related in time, space, origin, or motivation, whether they form a convenient trial unit ii. Gibbs v. United Mine Workers: Gibbs claims had Supplemental Jurisdiction because they both arose out of how the union reacted to the opening of a mine. b. The court does not have to exercise jurisdiction, and should decline if judicial economy, convenience, and fairness to litigants are not served. Consider: i. Is the federal claim dismissed early? a. Unless there has or will be lengthy pretrial work ii. Do state issues really predominate? a. vast majority of evidence relvant to only the state law claims? 30

iii. Is state law unsettled/complex? Should a state court decide it? iv. Possibility of jury confusionsubtle differences in claims? c. Rationale: Article III: same case or controversy 2. Kroger: Kroger, IA, sues OPPD, NE, which impleads Owen. OPPD MTD; drops out. Owen turns out to be from IA, not NE. Case is now IA P v. IA D in federal court on a state claim in negligence. Held: 1332 requires complete diversity. Gibbs interpreted Art. III, not 1332 diversity requirement. So Congress needs to make a statute. B. 28 U.S.C. 1367 1. 1367(a) In an action where District Court has original jurisdiction, it also has supplemental jurisdiction over all claims so related to the main Federal claim that they form part of the same case or controversy under Article III. (same as Gibbs standard) including claims that involve the jonder or intervention of additional parties. 2. 1367(b) Exceptions a. In diversity cases, the court doesnt have supplemental jurisdiction over i. Claims by the plaintiff against persons made parties under Rule 14, 19, 20, or 24, (Kroger v. Owen would fail here) or ii. Claims by persons proposed to be joined as plaintiffs under Rule 24 b. When exercising jurisdiction would be inconsistent with 1332 diversity. 3. 1367(c) Discretion Court can decline jurisdiction over supplemental claims when i. Claim raises novel or complex issue of state law; ii. State claim predominates over federal claim; iii. Court has dismissed all federal claims; iv. In exceptional circumstances, other compelling reasons to decline. a. some consider this list to be exclusive (while it was not in Gibbs test) 4. 1367 (d) IF so, SOL tolled on state claims when pending, and for thirty days after dismissal. Justified by Necessary and Proper Clause.

Class Actions
I. A class action allows many similarly-situated Ps to adjudicate claims in one action. A. Promotes efficiency, protects Ps in negative-value suits B. Problem 1. Binding judgment in personam on a nonparty. Pennoyer and Due Process a. 23(a), fact that they arent Defendants, and Phillips Petroleum (PJ) cover it 2. NOTE: MAKE SURE STILL CHECK FOR SMJ, PJ, VENUE C. FRCP 23: Initiating 1. P files complaint, noting in caption, description suit is styled as class action 2. Complaint identifies class in some fashion 3. P files motion for certification order. Has burden to show / jump through 2 hoops: a. Class meets general prerequisites of 23(a) b. Specific requirements of 23(b) 4. 23(c)(1) Court determines to certify class at some early practicable time, with enough discovery to determine whether certification is proper D. 23(a) Prerequisites One or more members of a class may sue as representatives only if 1. Numerosity: class is so numerous Rule 20 joinder is impracticable 31

a. Usually 20-40 b. Geography can play a role in practicality/efficiency too. 2. Commonality: questions of law or fact common to entire class a. Just one will do; if class from many states, certify statewide subclasses i. because otherwise differing applicable tort laws will undercut commonality 3. Typicality: Claims and defenses of representatives are typical of claims and defenses of class as a whole a. Ensures reps feel the pain of whole class. Too much individualized inquiry = not typical. b. If reps seek remedy not available to all class members, stakes are different, claims not typical. c. Problem in Teflon was everyone had different advertisements promoting it d. AGAIN being from different states can undercut this, b/c seeking different relief 4. Adequacy: Reps will fairly and adequately represent interests of the class a. Adequate counsel i. 23(1)(B): requires the court in certification order to appoint class counsel under 23(g). b. Adequate representationmust seek all relief available to all members i. representatives owe the class both a duty of loyalty and a duty of vigorous representation ii. In Re Teflon failed this because they dropped personal injury damage from claim. E. 23(a) Implicit requirements 1. Class definition must be so crafted to ensure membership can be ascertained objectively. (Who is bound, who to give $ to). 2. Class representatives must in fact be members of class. a. Not LMF, actually do some discvoery to see if this is true. F. In re Teflon (application on p.694): Class definition not objective; not sure reps are part of class; too much individualized inquiry for typicality (when items were bought, etc.); representatives not adequate because bring no claim for personal injury. G. Hansberry v. Lee: Burkes wife sued Klieman to stop him from leasing to black tenant; K stipulated 95% of homeowners agreed to covenant. Burke tries to sell to Hansberry; Lee sues; is Burke bound by 95% finding in first judgment? No. Burke did not have same interest as any party in first suit; interest was surely not adequately represented; court adopted no procedures to protect nonpartiesdidnt designate class or purport to bind in decree. G. Rule 23(b) specific requirements: must be satisfied for class to be certified as certain type. 1. 23(b)(1): The Prejudice Class. Class action may be maintained if 23(a) satisfied and a. Prosecuting separate actions would create the risk of i. Inconsistent adjudications that would establish incompatible standards for party opposing class, or ii. Adjudications that would substantially impair or impede ability of nonparties of class to protect their interests. a. Bank may be sued for many injunctions requiring different disclosures b. 1200 people want $3 million each; company only worth $300 million 2. 23(b)(2): The Civil Rights Class. Party opposing the class has acted or refused to act 32

on grounds applying generally to class, so injunctive or declaratory relief is appropriate for class as a whole. a. Common in discrimination suitscompany has refused to promote any blacks b. If monetary damages sought as well i. Some courts say injunctive relief must predominate ii. Others, that $ damages must be incidentalnecessary part of injunction a. In Re Teflon fails here b/c listed $ relief first. 3. 23(b)(3): The Damages Class. Court finds that questions of law or fact common to all class members predominate over questions affecting only individual members, and that class action is superior to other available methods for fair, efficient adjudication. a. Predominance of common questions 23(a) commonality +. Consider: i. Do elements of claim require same proof? ii. Class bound by mutual interest more than divided by individual? iii. Resolution of common questions would advance litigation? iv. Common qs central to all members claims? v. Same theory of liability? Same defenses? a. In Re Teflon fails b/c didnt show how they would prove claims (i) and there were too many individual questions ex: cookware caused harm? Vs what type, when bought, what ads b. Superiority of class action to other available methods. Consider: i. Interest of class members in individually controlling litigation; ii. Stage of any litigation already commenced; iii. Desirability of concentrating litigation in one forum; iv. Difficulties in managing class action. c. Other available methods? i. Individual actions a. Value of claim? b. Trying a test case? ii. Rule 20 joinder? (geography, numerosity) iii. Transfer multidistrict litigation to one forum for pretrial (1407) iv. Go to govt agency, complain d. Notice Requirements i. 23(2)(B) requires each Plaintiff to receive notice where practicable. ii. opt out option 4. In re Teflon: Class cannot be certified under 23(b)(2) because injunctive relief is not primary relief sought; warning label is lame and theyre looking for $. Not a 23(b)(3) class, eithercommon qs dont predominate (claims cant all be proven on same evidence); class action not superior; individual proof of injury, SOL thing make it too hard to manage; negative-value suit outweighed by difficulty of managing suit as class action. 5. 23(c) Certification Order: at early practicable time a. Define class and claims, issues, defenses, appoint counsel under 23(g) b. May be amended before final judgment c. 23(f) COA may allow interlocutory appeal 6. 23(c) Notice requirements 33

a. (b)(1), (b)(2) i. Court may direct appropriate notice b. (b)(3) i. Court must direct best notice practicable under circumstances 7. 23(d) Conducting action a. Court may issue orders to manage case and direct notice to members regarding steps in proceedings. 8. 23(d) Settlement, voluntary dismissal, compromise a. Court must give approval on any and must direct notice to those bound i. May approve only after a hearing on finding settlement is fair, reasonable, and adequate. Considers: a. Strength of Ps case; b. Size of offer; c. Likely length of litigation; d. Opposition by objectors; e. State of proceedings ii. Parties seeking approval must file statement disclosing all agreements made. iii. 23(b)(3): court may refuse to approve unless members given opt-out notice iv. Any class member may object a. Objection may only be withdrawn with courts approval b. Can FRCP 24 Intervene 9. 23(g) Court must appoint class counselconsider experiences, resources, knowledge 10. 23(h) Court may award reasonable attorneys fees. 11. Synfuel Technologies: Class members objected to proposed settlement: $600,000 for attorney, $10k for rep, vouchers or $30 for members. $75 mil damages alleged. Held that court abused discretion by not considering all factors (which claims were barred? Value of litigation?) in determining whether fair, reasonable, and adequate. H. When you are a Plaintiff with greater injuries than others, options 1. 23 opt out 2. 23(5) make a new sub class 3. 23(4) sue for declaration on faultiness. H. Class Actions and Subject Matter Jurisdiction / Supplemental Jurisdiction (P.708) 1. Ben-Hur, 1921: Only reps citizenship need be different than Ds. a. led to lots of forum shopping. Pick any rep and state you want b. bi-furcation forum shopping, places that did diamages first, easy settlements 2. Exxon, 2005: 1367 allows supp jurisdiction over claims arising from same case or controversy as class reps if claim for more than $75k. a. Keeps most class actions in state court i. Friendlier to Ps, possibility for sweetheart dealsforum shopping 3. CAFAmostly a response to forum shopping (SR P. 383) a. Federal courts have original jurisdiction over all class actions with at least 100 class members where amount-in-controversy (aggregate) exceeds $5 million if i. Any member of P class diverse from any D. (minimal diversity) b. Removal allowed in actions satisfying above even if i. More than a year after action filed; ii. Not all Ds agree to remove; 34

iii. Removing D is a citizen of the forum state (1441(b)) c. Exceptions for actions with high state interest: i. Home State: see general outline: minimal diversity doesnt apply a. 2/3 class and all primary Ds from forum state (SR p.386) ii. Local Controversy: see general outline: Court must decline jurisdiction a. 2/3 class, 1 D, principal injuriesforum state iii. Discretionary jurisdiction: see general outline a. 1/3-2/3 class from forum state, all Ds forum state d. Likely impact i. Multistate actions in federal court ii. Fewer multistate class actions a. State-only actions i. Risk of inconsistent judgments, not efficient ii. Ds dont care: Ps have less bargaining power because claims smaller b. Ds are happy i. More bargaining power in statewide class action ii. No multistate action in state court that defines nationwide liability iii. Federal courts friendlier a. Judges not elected b. Interlocutory appeal on certification

DISCOVERY
I: Timeline A. Pleadings close 35

B. 26(f) Parties meet and confer to make discovery plan at least 21 days before 16(b) 1. Discuss claims, changes to discovery schedule, e-discovery, etc 2. Discovery plan due to court within 14 days a. May include objections to required disclosures in discovery plan 3. 29Parties may stipulate to changes in discovery procedure. A stipulation that extends time frame must have court approval if it would delay discovery, hearing, trial. C. 26(a)(1) Required disclosures due 14 days after meet-and-confer: 1. Persons likely to have info disclosing party may use to support its own claims or defenses 2. Documents and tangible things party may use to support its claims or defenses 3. Computation of damages 4. Any insurance agreement under which insurer may be liable to satisfy judgment D. 16(b) Scheduling / discovery orderwithin 120 days of service or 90 of appearance 1. What types of discovery will be permitted 2. How long discovery will last, etc. E. Core discoverysee below F. Subsequent required, unilateral discoveries include: 1. 26(a)(2) 90 days before trial, identify and reports of experts who will testify 2. 26(a)(3) 30 days before trial, identities of fact witnesses who will testify 3. 26(a)(3) 30 days before trial, documents / exhibits disclosing party may use at trial G. 16(e) Final pre-trial conference: As close to start of trial as is reasonable 1. Judge and at least one attorney for each party a. Plan for submission of evidence b. For length of trial, etc. H. 16(e) Final pre-trial order 1. Sets forth facts to which parties have stipulated, factual and legal contentions, evidence, witnesses to be presented at trial 2. May be modified only to prevent manifest injustice J. Trial II. Core Discovery. FRCP 26(b)(1): Parties may obtain discovery regarding any nonprivileged matter that is relevant to any partys claim or defense, and that is reasonably calculated to lead to the discovery of admissible evidence. A. Primary tools 1. Rule 33 Interrogatoriesserved only on a party 2. Rule 30, 32 Oral depositionssubpoena to compel depo of nonparty 3. Rule 32, 32 Written depositionssubpoena to compel from nonparty 4. Rule 34 Requests for productionsubpoena to compel from nonparty 5. Rule 35 Physical or mental examinationparty or person in partys legal custody or control 6. Rule 36 Requests for admissionserved only on a party B. Party who receives request should determine whether to comply by undertaking following analysis: 1. Properly requested? Does it comply with all rules, discovery order, any protective orders issued? 2. Is it relevant to the claim or defense of any party? 26(b)(1) 36

3. Is it unreasonably cumulative or burdensome? 26(b)(2) 4. Is it reasonably calculated to lead to discovery of admissible evidence? 26(b)(1) 5. Is it privileged? a. Attorney-client privilege 26(b)(1) i. Communication made in confidence between privileged persons for purpose of obtaining or providing legal assistance for client; Upjohn 6. Or protected? a. Work-product doctrine 26(b)(3) i. Documents and tangible things prepared in anticipation of litigation by or for another party or its representative (some exceptions) a. Specific claim? Ad hoc? Primary purpose approach? See general outline 7. Unreasonably cumulative or duplicative? Too late? Burden outweighs benefit? 26(b)(2)(C) 8. Annoying? Embarrassing? Oppressive? Undue burden? 26(c) 9. For e-info, is it not reasonably accessible because of undue burden or cost? 26(b)(2)(B) C. Raising Objections 1. Object and wait for 37(a) motion to compel a. Objection excuses deponent from answer in only 3 circumstancesotherwise, objection is recorded, by deponent continues to testify 30(c)(2) i. When testimony would violate a privilege ii. When testimony would contravene discovery order or protective order iii. When deponent intends to move under 30(d)(4)ask court to end deposition or limit its scope / manner of taking because it is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress deponent or party b. Motion to compel 37(a) i. Movant must first try to confer with other side to resolve dispute without court intervention c. Sanctions for failure to obey order to compel 37(b)(2); Mazda i. Hold non-complying party in contempt ii. Dismiss lawsuit or part thereof iii. Enter default judgment in favor of party seeking discovery iv. Preclude noncompliant party from introducing evidence on the matter v. Deem matter conclusively established for requesting party vi. Mazda: Court abuses its discretion by 1. Imposing sanctions / making orders without considering needs of case (26(b)(2)(C); 2. Imposing sanctions that are unnecessary, given the circumstancesserious sanctions should be reserved for bad-faith discovery misconduct. d. Party may skip compel order and move initially for sanctions only if 37(d) i. Stonewalls discovery by not responding at all and not objecting ii. Fails to attend its own deposition 2. Move for protective order under 26(c) a. A protective order limits discovery by, for example, directing that discovery not be directed into a particular area, or limiting methods that can be used, or the amount of discovery that can be taken, or who can access materials produced (say, 37

non-sharing protective order to protect trade secrets) b. Movant must first try to confer with adverse party to resolve dispute without court intervention D. Duty to Supplement Discovery 26(e) 1. Mandatory disclosures under 26(a) and responses to interrogatories, requests for production, and requests for admission must be supplemented in a timely manner i. No duty to update depositions E. Attorney-Client Privilege 26(b)(1) 1. Communication made between lawyer and person who is or sought to be a client; 2. Communication was made in confidence outside presence of strangers; 3. Communication made for the purpose of obtaining or providing legal assistance for the client. 4. Privilege waived if communication is in controversy. 5. Privilege protects communication, not the underlying facts. 6. When client is a corporation, who speaks for the client and is protected by privilege? a. Before Upjohn, limited to control group of important employees b. Upjohn: privilege exists not just to give legal advice, but so attorneys can obtain information to help form that advice. i. Under Upjohn, privilege extends to communications between attorney and lower-level employees with whom the attorney communicates to gather facts &etc. F. Work-product protection 26(b)(3) Hickman 1. Party may not discover documents and tangible things prepared in anticipation of litigation by or for another party or its representative. But may be discoverable if: a. Otherwise discoverable; b. Party shows substantial need and cannot get equivalent without substantial hardship. 2. Can be prepared by attorney or for attorney (by client, paralegal) 3. Anticipation of Litigation a. Specific-claim approach: Documents must have been prepared with specific claim and facts in mind b. Ad hoc approach: Protected if done prior to emergence of claim, to help client avoid litigation or strengthen available defenses c. Primary purpose approach: Primary motivation of preparing product was to prepare for litigation a. Ordinary business purposeno b. To comply with regulationno 4. If court orders discovery, must protect against disclosure of opinion work product as opposed to factual work product a. Mental impressions b. Conclusions c. Opinions d. Legal theories 5. Absolute protection unless mental impressions pivotal issue in litigation; Holmgren. G. Party may discover its own previous statement without required showing. H. If you wish to resist discovery on privilege or protection grounds, expressly make claim 38

and describe nature of communication on privilege log so other side can assess. 26(b)(5) I. If you accidentally produce privileged or protected info: 26(b)(5) a. Make claim b. Other party must return, sequester, or destroy c. Claimant preserves info, presents to court for ruling III. Tools of Discovery (look in class notes) A. Rule 33, Interrogatories 0. Written questions to another PARTY. Answered under oath. 1. No more than 25, to parties only. May relate to any discoverable material. 2. Must be answered under oath by party to whom directed within 30 days. a. If party is an entity, must be answered by officer or agent who must furnish all information that is available to the party. b. application of law to fact; no law only. 3. Option to produce business records a. If answer may be determined by examining business records, and burden of finding answer equal for either party, responding party may specify records that must be reviewed and give other party reasonable opportunity to examine, make copies, etc B. Rule 34, Requests for Production / Inspection / Entry onto Land 1. May serve on any party; nonparty by subpoena. a. May take without leave unless parties have not stipulated, and would result in i. More than 10 being taken, or ii. Same person being deposed more than once, or iii. Depo being taken before 26(f) meet-and-confer 2. Other party must produce documents and tangible things in its possession, custody, or control, or permit entry onto land for property possessed or controlled by party. 3. Request must describe with reasonable particularity items to be inspected/produced. 4. Other party has thirty days to comply. 5. Must produce documents, e-info: a. As kept in usual course of business; or b. According to categories in request. Say, chronological order. 6. McPeek v. Ashcroft: When Rule 34 request is unduly burdensome (common, esp. for e-discovery), and responding party objects under 26(b)(2)(C) or moves under 26(c), court may undertake cost-benefit analysis and specify conditions for discovery under 26(b)(2)(C) or authorize protective order under 26(c). C. Rule 30, Interrogatories 1. Useful: spontaneous answers to informed questions 2. The examination of a live witness under oath outside the presence of the judge 3. To parties by request, nonparties by subpoena. 4. Notice to parties must state: a. Time and place b. Deponents name, address c. Materials requested d. Method of recording 5. If you want to depose a corporation or other entity: 30(b)(6) 39

a. Describe with reasonable particularity matters for examination; b. Entity designates officers to testify about all info known or reasonably available to organization. 6. Must take place before officer, who administers oath, records, etc. 7. Objections, motions to terminate or limit in objections above. 8. Limited to one day of 7 hours. 9. Who goes? a. Lawyers b. Officer (court reporter) c. Deponent 10. Subpeona Duces Tecum 30b2 (can get nonparties to bring in docs) D. Rule 31, Depositions by written questions 1. Rules more or less parallel written depo, except a. Noticing party gives officer a copy of questions and notice; officer 31(b) i. Takes deponents testimony; ii. Prepares and certifies the deposition; iii. Sends it to party, attaching questions and notice 2. Other parties may submit questions a. Cross-questions due 14 days after service with notice and direct questions b. Redirect questions within 7 days of service with cross-questions c. Recross-questions within 7 days of service with redirect questions E. Rule 32, Using depositions in court 1. All or part of a deposition may be used in court if: a. Party was present at deposition or had reasonable notice, b. The particular evidence is admissible (not hearsay, etc.), and i. It is used to impeach a witness, or ii. As an admission by a party-deponent, or iii. For any purpose if witness is dead, not subject to subpoena for trial, ill, infirm, etc., or iv. On motion and notice, that exceptional circumstances make its use just. 2. If one party uses only part of a deposition, adverse party can introduce the other parts in fairness. 3. Objecting to use a. Any objection can be made that would be available if witness were present and testifying 32(b) 4. Waiver of objections 32(d) a. Objection to notice is waived unless promptly served in writing on noticing party b. Objection to officers qualifications is waived if not made i. Before deposition begins, or promptly after basis for objection becomes known c. Objection to competence, relevance, or materiality is not waived by failure to object at deposition, unless i. Ground for objection could have been cured at that time a. Basically, by reformulating question d. Objection to error or irregularity at oral deposition is waived if i. It relates to a matter that could have been cured at the time, and 40

ii. It was not timely made during the deposition e. Objection to written question is waived if not served on submitting party in writing within time for serving responsive questions (14 days or 7) F. Rule 45, Subpoena 1. Served on nonparties 2. Command appearance 3. Must contain certain information 4. Usually used when court where issue is pending has no personal jurisdiction over deponent 5. Every subpoena must: a. State court from which issued; b. State title of action, court where action is pending, and civil-action number; c. Command person to do the following at a specified time and place: i. Attend and testify; ii. Produce docs, e-info in persons possession, custody, or control, or permit inspection of land or property; iii. State text of 45(c) and 45(d) (consequences for not complying) d. Must state method of recording 6. From which court? a. For hearing or trial, court where hearing or trial held b. For attendance at deposition, district where deposition taken c. For production or inspection, district where production or inspection will occur 7. Clerk must issue blank subpoena on request. Party completes it. 8. 45(b) Service by anyone at least 18 and not a party. 9. Service within U.S.: subpoena may be served at any place: a. Within the district of the issuing court; b. Outside that district, but within 100 miles of the place specified for deposition, production, etc.; c. Place the court authorizes for good cause, it federal statute allows. 10. 45(c) Protecting subpoenaed persons a. The issuing party must take reasonable steps to avoid undue burden or expense, and the issuing court must impose sanctions on noncompliant parties. i. An objecting party must object within 14 days or time specified for compliance, whichever is earlier. a. Serving party can then move to compel on notice to person. i. A compel order must protect nonparty from significant expense. b. The subpoenaed person can move to quash or modify a subpoena. The court must, on timely motion, quash or modify if i. The subpoena doesnt allow reasonable time to comply; ii. It requires a nonparty to travel more than 100 miles from home or business a. But party may be commanded to do so for trial if traveling from within the state where the trial is to be held iii. The subpoena requires the disclosure of privileged or protected material; or iv. The subpoena subjects the person to undue burden. c. The court may quash or modify a subpoena if it requires i. Disclosing a trade secret or other confidential info; 41

ii. Disclosing an unretained experts opinion as an expert; iii. A nonparty to incur substantial expense to travel more than 100 miles to attend trial d. Court may, instead of quashing or modifying, order appearance or production under specified conditions if i. Serving party shows substantial need and cant otherwise get info without undue hardship, and ii. Ensures subpoenaed person is reasonably compensated. 11. 45(d) Responding to a subpoena a. Must produce documents as kept in usual course of business, or as requested; must produce e-info in usable form. b. If objection to request 37(a) to compel or 26(c) for protective order; subpoenaed person must show not reasonably accessible; court may order discovery, considering limitations of 26(b)(2)(C), if serving party shows good cause c. Privilege / protection procedures same as above (make claim, note, etc.) 12. 45(e) Contempt a. If persons fails to obey subpoena without adequate excuse, issuing party must go to court and obtain a court order for contempt. i. But failure is excused if person was asked to attend or produce at a place outside the courts district and more than 100 miles from the persons home or business. G. Rule 35, Mental and physical examinations 1. Available against parties and persons in parties custody or legal control 2. Examination is limited to conditions in controversy 3. Requesting party must move for examination and show good cause H. Rule 36, Requests for Admission 1. May serve on any other party a written request to admit truth of matters relating to a. Facts, application of law to fact, or opinions about either, and b. Genuineness of any described document 2. Other party has 30 days to respond or object; otherwise, matter is taken as admitted. 3. Admitted matters are conclusively established as true for purposes of the present action only. 4. Can admit, deny, or assert lack of knowledge or information (only if reasonable inquiry made and information known is insufficient to admit or deny)

Dismissal of Actions
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I. FRCP 41(a), Voluntary Dismissal (before trial) A. 41(a)(1) A plaintiff can dismiss an action without a court order by filing either 1. A notice (not a motion) of dismissal, before the other party answers or moves for summary judgment, or (answer, summary judgment are point of no return) a. SJ can = 12(d) a 12b6 motion with facts/evidence outside the pleadings (data). 2. A stipulation of dismissal signed by all the parties who have appeared. a. Dismissal is without prejudice unless the notice or dismissal states otherwise. b. But, if the plaintiff previously dismissed the same claim, a notice of dismissal (but not dismissal by court order or stipulation) operates as an adjudication on the merits. Two-dismissal rule. B. 41(a)(2) Except as above, plaintiff can only (motion) dismiss by court order, on terms the court considers proper. The order is without prejudice unless it states otherwise. 1. The court will dismiss with prejudice or other terms (costs, etc.) when it finds plain legal prejudice to D: a. Has D spent time and $ litigating? b. Where is the litigation? Are we in discovery? &etc. (p. 986 factors) c. Having to defend another lawsuit not enough C. WHY, voluntary dismiss? 1. List on p. 982 in gray box II. Rule 41(b), Involuntary Dismissal A. Defendant may move to dismiss if the plaintiff 1. 46(b) Fails to prosecute, or 2. Fails to comply with the Rules. 3. The dismissal is with prejudice unless the order states otherwise, except for a. 12(b)(1) or 12(b)(2) lack of subject-matter or personal jurisdiction b. 12(b)(3) improper venue c. 12(b)(7) failure to join a required party under Rule 19 i. Because these are unrelated to the merits of the case B. 41(d) If a plaintiff who previously dismissed brings the action against the same defendant, the court may order P to pay Ds costs from the first action. III. Point of no return A. If a D answers or moves for summary judgment, he has probably spent time, $ on case B. If, on 12(b)(6) or 12(c) motion, P introduces materials outside the pleadings and they are not excluded by the court, 12(d) turns motion into Rule 56 motion for summary judgment, and the point of no return is reached. IV. In re Bath and Kitchen Fixtures: Court grants leave to amend after Ds 12(b)(6) and P notices voluntary dismissal under Rule 41(a); because D did not answer or move for summary judgment, P can do so. Point of no return is a bright line rule.

FRCP 56 Summary Judgment

43

I. Generally A. Use where material facts are not in dispute, and all that remains is to apply the law. B. Notice pleading is vague; 12(b)(6) motions often dont weed out meritless claims. Summary judgment does. Celebrated in Celotrex. Policy Rationale: Page 1013. 1. Tests sufficiency of evidentiary basis for claim, not sufficiency of pleading. C. Who decides? The judge decides motion as a matter of law, but cannot 1. Weigh the evidence, or 2. Make credibility judgments D. Partial summary judgment 1. Court may hold there is a genuine issue only as to certain claims, or as to parts of claims a. Say, on liability, but not on damages E. Summary judgment is a trial preview. 1. So court only considers evidence that could be admitted at trial (in some form) a. Nothing inadmissable or promised is considered b. exception for affidavits, etc. otherwise not summary i. really narrow exception: 56c4 must be made on personal knowledge and set out facts that would be admissable in evidence. 2. The motion is decided on the undisputed facts in movants and non-movants materials that would be admissible at trial F. Process 1. Identify applicable law 2. What is material for this law? 3. Are the material facts disputed within the proper record, what evidence have sides shown? 4. If not disputed apply to the applicable law: a. Has the Moving Party met its burden of proof? (some evidence; prep of evid) b. If yes, has the non-movant successfully rebutted with evidence? II. Rule 56(a) A. A party can move for summary judgment on any part of any claim or defense. The movant has the burden to show: 1. There is no genuine dispute as to any material fact a. A dispute is genuine if a reasonable jury could return a verdict for nonmovant b. Light most favorable to nonmovant; all inferences for nonmovant c. Underlying substantive law decides which facts are material 2. The movant is entitled to judgment as a matter of law. B. 56(b) Party may move for summary judgment at any time until 30 days after close of discovery. 2. Under 56(d), nonmovant may show by affidavit or declaration that facts to oppose the motion are unavailable to it. The court may allow time for discovery or deny the motion. III. 56(c) Supporting a motion for summary judgment A. Party must cite to materials that would be admissible at trialmotion is trial preview 1. Use: depositions, documents, stipulations, admissions, etc. 2. Narrow exception for affidavits and declarations: a. Must be made on personal knowledge; 44

b. Must set out facts that would be admissible at trial; c. Statements are sworn, under penalty of perjury B. Other party may object that material cant be presented in a form admissible at trial 1. No unsworn material except admissions (so no pleadings, generally) IV. Shift in burden A. The burden of persuasion always rests with the same party (usually the plaintiff) B. The burden of production on motion for summary judgment shifts as follows: 1. Moving party has burden of production a. If moving party fails to meet burden, motion is denied b. If moving party meets burden, burden of production shifts to nonmovant i. If nonmovant fails to meet burden of production, motion is granted ii. If nonmovant meets burden of production, motion is denied V. Relationship between burden of persuasion and burden of production A. If the movant has the burden of proof at trial (usually P): 1. Proof of the Elements Motion: very difficult a. Must present undisputed facts supporting each element of claim or defense b. Usually results in partial summary judgment, especially for Ps: i. Undisputed facts rarely establish damages a. So, usually summary judgment as to liability only B. If the movant does not have the burden of proof at trial (usually D): 1. Disproof of an Element Motion a. Produce real evidence to prove the nonexistence of an essential element i. Slaven v. City: City showed didnt know of suicide risk. 2. Absence of Proof Motion a. Since burden is on the other party, movant can obtain summary judgment by showing other party has unearthed no evidence to carry burden on an essential element of the claim. (usually easier than #1) i. Celotrex: Conclusory assertion is not enough; must review for court materials in record and discuss evidence. Otherwise, every D would move for summary judgment in every case and shift burden to P, whether justified or not. a. So: have to point out the element and that they dont have evidence. C. Slaven v. City of Salem: City is entitled to summary judgment because it proffered three affidavits showing officers did not know Ps decedent was a suicide risk, and such knowledge was an essential element of Ps claim. This shifted burden of production to nonmovant, who neither moved under 56(d) nor produced evidence establishing a genuine issue of material fact on which a reasonable jury could find for her. Lying affiant standard and scintilla of evidence standard not enough. D. Duplantis v. Shell: Shell points to affidavits showing that no witness has asserted it was responsible for board on ship, an essential element of Ps claim. This shifts burden of production to P, who only produces unsworn letter from expert that doesnt even address issue of responsibility. Since P has failed to show the existence of a genuine issue of material fact that would allow a reasonable jury to find for him, Shell is entitled to summary judgment. Absence of Proof motion for summary judgment. VI. Related Motions 45

A. 12(b)(6) based on facts in complaint; B. 12(c) based on facts in complaint, answer, and reply; i. 12(d) can convert either into Rule 56 motion, includes evidence outside pleadings; D. 56 (SJ) based on undisputed facts in movants and nonmovants materials that would be admissible at trial; E. 50(a) after Ps case based on all evidence presented in Ps case; F. 50(a) after Ds case based on all evidence presented at trial. Rule 50(a) Motions for Directed Verdict and Rule 50(b) Motions for JNOV I. 50(a) motion for DV appropriate when: A. Party has been fully heard on an issue, and court finds: 1. Reasonable jury would not have legally sufficient evidentiary basis to find for party on issue. Court may a. Resolve issue against party and grant JMOL on claim or defense that depends on issue B. Motion may be made at any time before case goes to jury. Movant has burden to 1. Specify the judgment sought, and 2. Specify law and facts entitling the movant to judgment C. If made at close of Ps case, court applies law to facts presented by P. 1. Plaintiff may ask for opportunity to re-open case D. If made at close of Ds case, court applies law to facts in entire trial record. II. 50(b) Motion for JNOV (non obstante verdictum, judgment notwithstanding the verdict) A. 50(a) motion may be renewed as a 50(b) motion within 28 days of entry of judgment a. No 50(b) without 50(a) first i. Idea is that 50(a) conditionally submits case to jury and reassess after B. Same standard as 50(a): Judgment may be reversed if it lacked a legally sufficient evidentiary basis. C. Courts prefer 50(b) to 50(a) 1. If judge grants 50(a), losing party appeals; new trial necessary if it wins 2. If judge grants 50(b), losing party appeals; perfectly good verdict if it wins D. Critical question: Just what is a legally sufficient evidentiary basis? 1. Evidence is such that without weighing the credibility of the witnesses, or otherwise considering the weight of the evidence there can be but one conclusion as to the verdict that reasonable persons could have reached. A. What is considered? i. P evidence ii. D evidence that is uncontradicted and unimpeached B. Weighing? i. NOT credibility of witnesses, but strength of the evidence (ie: circumstantial vs. direct evidence doesnt directly contradict it..). 2. Pennsylvania RR Co. v. Chamberlain: Ps testimony based solely on eyewitness who only inferred a collision and could not have seen one; collision a necessary element of Ps claim. D presented direct evidence in form of eyewitnesses that collision did not occur. Since Ps testimony gave rise to equally strong inference that collision did not occur, it did not actually impeach Ds direct testimony. Evidence so 46

overwhelmingly to one side that there is no legally sufficient evidentiary basis to find for P; directed verdict appropriate. Jury Trial? I. Seventh Amendment A. In suits at common law, where value in controversy exceeds $20, right of trial by jury shall be preserved, and no fact tried by a jury shall be reexamined in any court of the United States, than according to the rules of the common law. a. Redman, 1935: Right preserved as under English common law, 1791jury trial for legal claims, bench trial for equitable claims. i. Historical Test: In considering whether party has right to jury trial: a. Does the claim more closely resemble a legal or an equitable action? b. Is the remedy sought legal or equitable in nature? i. Remedy is the most important. $ and return of property is legal; special remedies like injunction, declaratory judgment, specific performance equitable. II. FRCP 38: Right to Jury Trial Preserved inviolate A. Party may demand by serving other parties in writing no later than 14 days after pleadings close. May demand jury trial on only some issues; must so state. 1. If only demanded on some issues, other parties have 14 days to serve demand for jury trial on other issues. 2. Right is waived if not properly served, filed. Only one party need demand. III. For mixed actions that have a mixture of legal and equitable claims, the court will: A. Try the legal issues to a jury first; i. EVEN if it is a counterclaim; see Beacon Theatres B. Judge must then take the jurys findings of fact as true for the relevant equitable claims. C. McCulloch v. Dairy Queen: DQ wants jury trial on damages arising from breach of contract; judge characterizes those legal claims as incidental to demand for accounting, injunctive relief. DQ seeks writ of mandamus. Held: Right to jury trial on legal claims cant be abridged even if claims are incidental. Breach of contract will be tried to jury, damages awarded, and finding on breach applied in bench trial on equitable claims.Calling it accounting and not debt doesnt suffice. D. Beacon Theatres: Fox files for declaratory judgment that it did not violate antitrust laws, and injunction to stop Beacon from suing. Beacon counterclaims, alleging antitrust violations. Held: Counterclaim must be tried, as it is legalseeks damages. Finding will be applied in equitable action for declaratory judgment. IV. Modern Encroachments on Jury Right A. Directed verdicts, 6-person juries, partial new trial, administrative agencies, statutory causes of action that didnt exist in 1791 see NLRB v. Jones & Laughlin 1. Court typically holds that Seventh Amendment preserves fundamental elements of jury trial and not 1791 proceduresjust substance of right. V. FRCP 39, Trial by jury or by court A. When jury trial is demanded, court must note so on docket. Trial must be by jury unless: 1. The parties stipulate to a nonjury trial; or 2. Court, on motion or on its own, finds no right to jury trial. B. 39b If no demand is made, issues will be tried by the court. But the court may, on motion, 47

order jury trial on any issue for which jury trial hasnt been demanded. 1. When you forget to file timely noticedepends on stage of litigation, etc. C. In an action that doesnt give a right to jury trial, the court may convene an advisory jury. 1. Judge empanels jury; not bound by verdict. VI. Cons of jury trial A. Long; jury may struggle to understand complex cases; must be one continuous sequence; costts more; (weighed against how your side will be viewed by the bench) notes p. 10 VII. FRCP 42, Consolidation, Separate Trials A. If actions before court involve common questions of law or fact, court may 1. Join for hearing or trial all issues; 2. Consolidate the actions; or 3. Issue any other orders to avoid cost or delay. B. For convenience, fairness, economy, court may sever claims for trial. Must preserve right to jury trial. New Trial and Relief from Judgment I. FRCP 59: New Trial; Altering or Amending a Judgment Procedure A. On motion or on its own, court can grant new trial on all or some issues if 1. After jury trial, for any reason new trial has been granted before; 2. After nonjury trial, for any reason a rehearing has been granted before. a. After a nonjury trial, the court may, on motion, open the judgment, make new findings. Easier for one judge than an entire jury. B. A party has to move for new trial no later than 28 days after entry of judgment. If the motion is based on affidavits, party must file them with motion. 1. Opposing party has 14 days to respond with its own affidavits. C. Court may order new trial on its own initiative within 28 days of entry of judgment. 1. Parties get notice / opportunity to be heard 2. Court may grant timely motion for new trial for reason no stated in motion 3. Court must specify reasons in order D. Motion to alter or amend judgment must be within 28 days of entry of judgment II. New Trial: Reasons, Standards A. If evidence was not insufficient to support a verdict (substantive OR money judgment), but court cannot grant JMOL 1. But may grant a new trial for one of three reasons: a. The verdict was clearly erroneous because it was not supported by the weight of evidence i. Judge actually weighs evidence (doesnt mess up jury rightnew trial) ii. Can consider jurors couldnt understand material, etc. aa. But juries are considered much better at deciphering credibility in a hesaid; she-said trial. b. Process errors in conduct of trial or jury caused prejudice and affected the verdict (FRCP 61most errors are harmless) c. Losing party finds new evidence after trial (FRCP 60rare) B. Standards 48

1. Against weight of evidence; clearly erroneous; seriously erroneous 2. For awards: does amount of award shock the judicial conscience? C. When Appropriate 1. Should be avoided if verdict depended heavily on credibility judgmentsjuries are good at thatbut more appropriate if trial was complex. III. Altering the Judgment A. Pursuant to Rule 59(e), party may move to alter judgmentoften, award 1. Remitturjudge reduces award to that which does not shock judicial conscience a. May take maximum from comparable precedent, minimum, or average b. P may accept or risk new trial c. Rationale: reasonable party of jury verdict; really, existed in 1791 2. No such thing as additur in federal court. Rationale: not part of jury verdict; really, didnt exist in 1791 IV. Partial New Trial 59(a)(1) claim or element A. BUT: If new trial on one issue would cover same ground as another issue, the two should be tried together 1. If damages / liability are interlinked, should not be partial new trial on damages. V. Review A. Not appealable until after FINAL judgment / whole new trial ends B. App Cts give district court a lot of leeway: present and better able to appraise than from the cold record. V. Combined Motions A. Party moves in alternative for JMOL and new trial. 1. If court grants JMOL but doesnt decide on new trial, appeals court might reverse the JMOL decision. Then, it would have to remand for the motion for a new trial. a. So, 50(c): The trial court conditionally rules on the motion for a new trial. That ruling is used if the JMOL judgment is vacated or reversed. 2. If JMOL is denied, the winner has no reason to ask for a new trial. But, the appeals court could reverse on the denied JMOL. a. So, 50(e) allows the verdict winner to assert grounds for a new trial. VI. Triveldi v. Cooper: P alleges D 1. Created hostile work environment; 2. Failed to promote him; 3. Retaliated against him. D moves under 50(a) on retaliation and failure to promote at end of Ps case; denied. At close of case; renewed with 50(b); denied as to creation of hostile work environment because not preserved with 50(a) motion. Other two claims involve credibility determinations and are not unreasonable with legally insufficient evidentiary basis. Moves in alternative for new trial. Verdict seems to be against weight of evidence, maybe, but depends heavily on credibility judgments. Denied. 59(e) to alter judgment: Award is crazy ($700k). Remitutter: P can accept $50k or risk new trial. New trial on all claims, because the damages award is bound up with findings on liability. VII. FRCP 60: Relief from a Judgment or Order 1. The court can correct all clerical mistakes until the appeal is docketed with the appeals court. Then, it needs leave. 2. On motion and just terms, the court can relieve party from judgment for: a. For mistake, surprise, excusable neglect (usually default judgment) b. Newly discovered evidence that due diligence would not have found in time for trial 49

c. Fraud on the court (paying jurors, forging documents, etc.) i. all above have a 1 year limit d. Judgment is void (usually, no service or jurisdiction in default judgment) e. You have paid award, or injunction is satisfied f. Any other justifiable reason (almost never; must be extraordinary) i. no hardline time limit; just within a reasonable time 3. Motion must be made within a reasonable time. For a-c, no later than 1 year after judgment. 4. Court can set aside judgment for fraud on the court at any time on its own for #3 or #4. 5. Pretty ungenerous. Pease: P unsuccessful on motion when lawyer basically abandoned his case before it was over. a. Even for default judgmentmust show meritorious defense, excusable neglect. Not easy. VIII. FRCP 61, Harmless Error A. Unless justice requires otherwise, no error is ground for granting a new trial, setting aside the verdict, or disturbing a verdict. The court disregards errors that dont affect substantial rights. 1. cumulative evidence; party won that was helped; jury worked on a different theory; evidence cam in anyway in another way; curative/corrected instruction B. Non-harmless errors (not listed in rule) Must effect a partys substantial rights 1. Irrelevant, prejudicial evidence 2. Improper grant of dispositive motion 3. Serious instructional errors (some instructional errors are fine) 4. Serious jury misconduct (going to a psychic)

Remedies and Post-Judgment Procedures

Remedies I. FRCP 62: Stay of Proceedings to Enforce a Judgment A. No judgment is executed until at least 14 days after it is entered. Exception, even if appeal taken and unless court orders otherwise, for: 1. Injunctions, receiverships, or direction for patent accounting B. The court may stay execution of a judgment on appropriate terms for security pending: 1. A Rule 50(b) motion for JMOL; 2. A Rule 52 motion to amend findings; 3. A Rule 59 motion for new trial or to alter the judgment; 4. A Rule 60 motion for relief from judgment. C. Injunctions while appeal is pending 62(c) 1. While an appeal is pending for a judgment that grants or denies an injunction, the court may grant, modify, or suspend the injunction for bond, or other terms that secure the opposing partys rights. D. 62(d), Stay with bond on appeal. An appellant can obtain a stay by supersedeas bond enough $ to show the court youre good for the amount of the judgment. E. When considering whether to grant stay, court considers, basically, preliminary injunction factorslikelihood of success on appeal, likelihood of irreparable harm, balance of equities, effect on public interest. ($ judgment irreparable? Other party might not returnespecially 50

in class actions.) II. FRCP 64: Seizing a Person or Property A. During and after an action, every remedy is available that, under law of the state where the court is located, provides seizing a person or property to secure satisfaction of judgment. B. Specific remedies available include: 1. Arrest 2. Attachment (seize propertyany propertyto ensure presence of assets to satisfy judgment) 3. Garnishment (as with wages or bank accountsproperty coming from 3rd party indebted to debtor, who is indebted to creditor) 4. Replevin (seizing property wrongfully taken from P by D) 5. Sequestration (seize specific property in controversy pending outcome; a Picasso) 6. Corresponding or equivalent remedies C. Fuentes v. Shevin: Fuentes bought a gas stove from Firestone on credit; Firestone retains title until payments complete. Fuentes is in default. Under FL law, Firestone obtains writ of replevin for stove and phonograph by 1. Filling out form for clerk saying goods are wrongfully detained, but not showing it; 2. Posting a security bond for double value of the goods. Writ commands sheriff to take goods, which he does. Fuentes gets notice of action when goods are taken, has no hearing, but can post double bond within three days to regain possession. Held: Violates due process. 1. Parties whose rights are to be affected are entitled to be heard. 2. Notice, hearing must occur at time when deprivation of property can be prevented. a. Security bond inadequate substitute, and Ps chance to post also deprives her of property. 3. P lacked full title, but nonetheless had possessory interest, which is a property interest. 4. In historical replevin, if P asserted goods were his, right to be heard. 5. Dissent: Seller has more of a property interest than buyer / if default disputed, opportunity for hearinglow chance of false claims of default (bond, litigation, losing) a. Replevin gets you a court order and lawful agent to seize property. b. When you repossess property, you can do it without a court order, but cant breach the peace in the process. III. Rule 69: Execution A. A money judgment is enforced by a writ of execution. B. The procedure is governed by state law. 1. MDNC forms a. Writ commands U.S. marshal to seize property to be sold b. Some properties are exempt: residence, burial plot, tools of trade i. Want to avoid complete indigencewont take your house or your hammer C. In aid of judgment or execution, creditor can obtain discovery from any person, including the debtor, as the Rules provide. 1. P can learn where $ is, and who owns what a. Can use info to garnish wages, bank accounts, etc.

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IV. FRCP 70: Enforcing Judgment for a Specific Act A. If the judgment requires a party to act, and it doesnt 1. Court may order act done at partys expense by a person the court appoints B. If property at issue is within the district where the court sits, the court can enter an order divesting the party of title and vesting it with another. Has effect of legal conveyance. C. Obtaining a writ of attachment or sequestration 1. The party entitled to the performance applies to the court 2. The clerk must issue the writ of attachment or sequestration D. Obtaining writ of execution or assistance 1. The party who obtained the judgment or order for possession applies 2. The court must issue the writ of execution or assistance E. The court may hold a disobedient party in contempt. V. FRCP 65: Injunctions and Restraining Orders A. The court can only issue a preliminary injunction on notice to the adverse party. B. The court may advance the trial on merits for an injunction and consolidate with a hearing for a preliminary injunction. Even when there is no consolidation, evidence that would be admissible at trial that is advanced at the hearing becomes part of the trial record. But, jury right must be preserved. C. 65(b) Temporary Restraining Orders 1. The court can issue a TRO without notice to adverse party (dangerous!) only if a. Movant shows, by affidavit or verified complaint, that she might suffer immediate and irreparable injury or loss before the other party can be heard b. Movants attorney certifies efforts to give notice, why it shouldnt be required 2. The TRO expires after 14 days, but court can extend another 14 for good cause 3. A TRO issued without notice must contain: a. Date and hour issued b. Describe injury and why its irreparable c. Describe why it was issued without notice d. Must be promptly filed at clerks office, entered in record 4. An expedited hearing can turn a TRO into a preliminary injunction: a. If TRO issued without notice, motion for preliminary injunction must be set for hearing at the earliest possible time. Takes precedence over all other matters. i. At hearing, court must dissolve TRO if movant doesnt proceed with motion b. On 2 days notice to obtaining party, adverse party can appear and move to dissolve or modify the order. Court must hear as promptly as justice requires. D. 65(c) The court can only issue a TRO or preliminary injunction if the movant gives security in an amount the court considers proper to pay costs and damages to a party wrongly restrained or enjoined. E. 65(d), Contents and Scope. Every preliminary injunction and TRO must: 1. State reasons why issued, 2. State its terms specifically, and 3. Describe in reasonable detailnot by reference to complaintacts to be restrained or required F. A preliminary injunction or TRO binds only those who have actual notice by service: (contempt of court if you violate). Constructive notice is insufficient. 52

1. Parties 2. Parties agents, employees, attorneys, officers, servants 3. People acting in concert or participation with parties 4. Not limited by constructive notice, only actual 5. A person not in concert or participation is not bound by the order, but is still bound by other laws G. When considering whether to grant preliminary injunction, court considers: 1. Is the party likely to succeed on the merits? 2. Will the party likely suffer irreparable harm without the injunction? a. Is it just money, or something that the court cant fix? 3. Does the balance of equities tip in the partys favor? a. Harm to P vs. harm to D 4. Is the injunction in the public interest? a. How will this affect third parties? VI. University of Texas v. Camenisch: Camenisch, grad student at UT, wants sign-language interpreter per federal law. Seeks declaratory relief, a preliminary injunction through the end of the case, and a permanent injunction beyond the end of the case. Court allows on $3,000 bond from Camenisch. Interlocutory appeal: COA affirms. By that time, Camenisch has graduated and argues the case is moot. COA agrees, wants to decide who pays for interpreter based on finding that preliminary injunction was proper. Held: 1. Grant of P.I. depends on four factors above 2. Who pays for interpreter depends on final adjudication on the merits 3. The two have different standards: a. Hearing for preliminary injunction is hasty, informal b. Party not required to prove case in full c. Findings of fact, conclusions of law not binding at trial d. If expedited trial appropriate, 65(a)(2) allowsbut requires notice to parties, full opportunity to present cases; procedure not followed here. i. Remanded for adjudication on the merits. VII. Zenith Radio Corp. v. Hazeltine Research, Inc.: HRI licenses patents to Zenith and alleges Zenith infringed them. Z answers with counterclaim for treble damages and an injunction, alleging patent misuse and conspiracy in restraint of trade under Sherman. Two weeks before counterclaim, Z and HRI stipulated that Hazeltine, HRIs parent company, was to be considered same entity as HRI for litigation. Zenith gets injunction on foreign TV stuff, $65 million against HRI, Hazeltine. Is Hazeltine bound by injunction / judgment? Held: No. 1. A judgment in personam cannot bind persons not named as defendants or made parties by service of process. An injunction binds only parties, parties agents, etc., and those acting in concern with parties. a. Hazeltine not named as a party, never served, never formally appeared, did not sign stipulation. b. If Hazeltine had directed litigation for HRI i. Probably bound c. If HRI were a shell company, and Hazeltine and HRI alter egos i. Probably bound d. If Hazeltine had stipulated or was acting in concert with HRI 53

i. Probably bound. VIII. 28 U.S.C. 2201, Declaratory Judgment Act A. In a case of actual controversy, court may declare rights and other legal relations of any party seeking such declaration, whether or not further relief is sought. Has effect of final judgment; reviewable as such. 1. Case of actual controversymust be real injury, etc. Can only get declaratory judgment as mirror image of actual suit. IX. Rule 57: Declaratory Judgment A. Existence of another adequate remedy doesnt preclude declaratory judgment action B. Court may order a speedy hearing C. Preserves the jury right 1. Traditionally an equitable remedy; but, reverses the posture of the parties and often actually decides a damages claim a. Flip the case. If the flipped case provides a jury right, you can demand jury trial. II. Appeals I. FRAP Rule 3: Appeal as of Right: How Taken A. Filing the notice of appeal (not asking, telling) 3(a) 1. Filed with clerk of District Court within 30 days of final judgment (needs to know it should stay proceedings) 2. Clerk sends copies to all other parties 3. Clerk sends notice to the Court of Appeals B. Contents of Notice. 3(c) 1. Must name each party taking appeal in the caption (for class action, name rep) 2. Must designate judgment or order being appealed 3. Must name court to which appeal is taken. II. FRAP Rule 4: Appeal as of Right: When Taken A. 4(a) Must be filed with District Clerk within 30 days of entry of judgment 1. Jurisdictional limitcourt considers sua sponte 2. 4(a)(5) District court may extend limit if: a. Party moves for extension no later than 30 days after limit expires; b. Party shows excusable neglect or good cause 3. 4(a)(3) In one party files timely notice, other party can file notice within 14 days or end of 30-day limit, whichever is later. 4. 4(a)(4) Time to appeal runs from entry of order disposing last of following motions: a. 50(b) for JNOV b. To amend under 52(b) c. Attorneys fees under Rule 54 d. To alter or amend under Rule 59; new trial under Rule 59 e. Relief under Rule 60, if motion filed not later than 28 days after entry of judgment i. All above motions toll the appeals clock

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III. 28 U.S.C. 1291 A. Courts of Appeals have appellate jurisdiction from all final decisions of U.S. District Courts. 1. Except where review may be had in the Supreme Court. 2. Different for CoA for Federal Circuit. IV. 28 U.S.C. 1292 A. Courts of Appeal have jurisdiction of appeals from: 1. Interlocutory orders on injunctions, receiverships. B. When a judge makes an order not otherwise appealable, but thinks that the order involves an unclear area of law and that immediate appeal would advance litigation, he must say so in the order. 1. Party must apply to CoA within ten days of order. CoA may, at its discretion, permit appeal from the order. C. Weird jurisdiction rules for CoA for Federal Circuitpatents and such. D. Supreme Court may make rules allowing interlocutory appeals. V. Appeals: The Process A. Generally, Courts of Appeal correct legal errors made by the trial court. B. Process 1. Lose, identify prejudicial error, and file notice in DC within 30 days 2. With help of clerk, compile record appendix a. Set of relevant documents to submit with briefs: all necessary docs, transcripts necessary for Court of Appeals to understand proceedings 3. File a brief a. Statement of proceedings below, facts giving rise to case, issues you claim wrongly decided, arguments explaining position 4. Other party files answer brief refuting arguments 5. First party likely files reply brief 6. Panel of judges assigned to case; usually three a. Straightforward casesbased strictly on briefs, record appendix b. More complexcourt hears oral arguments i. Paper record, no witnessesnot a retrial ii. Court only considers issues raised by appellant iii. Different standards of review based on types of rulings VI. Reviewability A. For error in trial court to be reviewable on appeal, it must be prejudicial, preserved below, and presented above. 1. Prejudicial a. A party must be aggrieved by the error. FRCP 61 directs court to ignore harmless errors; both the trial court and the appeals court use the Rule 61 standard. 2. Preserved Below a. Party must object in trial court, which gives the trial judge the opportunity to correct the error (making appeal unnecessary) and puts the objection in the record, along with the judges response, for the appeals court to consider. i. Also puts the other party on notice and gives it an opportunity to respond in trial court; prevents surprise on appeal. ii. Exceptions: For plain legal error. 55

a. Was there error? b. Was it plain? i. So clear and obvious DC should have noticed it even without argument. (ex: wetback) c. Did it affect substantial rights? d. Court also considers i. Pure question of law? Will refusal to reconsider result in miscarriage of justice? ii. Does it raise significant question of public concern? iii. Did the movant have an opportunity to contest at Dist Ct.? b. Different for appellee i. A party can make any argument supported by the record to affirm the judgmentthe CoA reviews the trial courts judgment, not its opinion. 3. Presented Above a. Must present and argue the error to the Court of Appeals if you want to disturb the judgment i. Must actually argue, not just list, in brief a. Provides guidance for CoA and notice to other party i. Often, even reply brief is too late 4. MacArthur v. University of Texas Health Center at Tyler: M asserts five claims: 1. Retaliation under 1st amendment; 2. Sex discrimination Title VII; 3. IIED; 4. Retaliation Title VII; 5. Equal Protection claim. Argues Title VII discrimination, 1st amendment retaliation, and IIED at trial. Judge instructs on those three claims; M objects that EP not included (not sleeping; a choice). Jury returns $65k on IIED, for D on others. M appeals and argues Title VII retaliation only in brief. Held: 1. Title VII discrimination not presented above; 2. Won on IIED; 3. EP not presented above; 4. Title VII retaliation presented above, but not preserved below; 5. 1st amendment retaliation not presented above. i. Then, D wins IIED on cross-appeal. V. Appealability: The Finality Principle and appellate Jurisdiction A. 28 U.S.C. 1291: CoAs have appellate jurisdiction over all final decisions of DCs 1. WHY? : Piecemeal appeals throughout litigation would disrupt efficiency, burden CoA 2. What is final? a. Usually, the final decision of the case: an order that ends the litigation on the merits and leaves nothing for the trial court to do but execute the judgment. i. Conclusion of litigation in district court ii. Entry of judgment for one party or another iii. Ends litigation on the merits b. If one claim by plaintiff is dismissed, but others remain: not final c. If all plaintiffs claims dismissed, but counterclaim remains: not final i. Attorneys fees dont keep judgment from being final 3. Why the finality rule? Why so few interlocutory exceptions? a. Congestion60,000 appeals in 2009, most from final judgments 56

b. DuplicationMany interlocutory issues can be considered after final judgment c. DelayMany appeals would bring litigation in DC to a halt d. Expensebriefs, time, resources for lawyers, CoA e. Often unnecessary i. If parties settle, no appeal ii. If party wins, wont appeal f. Proper relationship between courtsDC decides on merits, CoA reviews errors in result B. Exceptions to Finality Principle (Interlocutory Appeals) 1. Rule 54(b): Final by Direction (not really an exceptionjust unusual finality) a. The court may direct judgment to fewer than all claims or parties if the court decides there is no just reason for delay. Otherwise, an order adjudicating fewer than all claims is not final and may be revised at any time. i. Summary judgment granted to D, but many parties in case. Since the judgment isnt final, D wont know its out of the case until appeal following final judgment. a. 54(b) allows D to move for entry of final judgment b. If there is no just cause for delay, court may enter final judgment i. Is the claim factually separable from others in the case? If it is, immediate appeal would not overlap with later appeal from final judgment. If it is not, CoA would probably have to consider same issue twicejust cause for delay. c. If court grants 54(b) motion, 30-day appeals clock begins to run. d. Court will never grant 54(b) on part of a claimno final judgment as to liability alone. The court doesnt decide a claim until it decides the proper remedy. 2. 28 U.S.C. 1292(a): Orders concerning injunctive relief that are not final a. Allows interlocutory appeal for orders concerning injunctive relief. i. All injunctions, not just preliminary injunctions ii. Why? Ruling on injunction usually effects life on the ground by irreperably harming the losing party. 3. 28 U.S.C. 1292(b): Discretionary Review of Certified Questions a. Some interlocutory decisions raise controlling questions of law, sound the death knell for litigation (say, not certifying a class), etc. Solution: let judges decide ad hoc whether to take appeal. b. Standard: i. Does the order concern a controlling and novel question of law? ii. Is there substantial ground for disagreement on the answer? iii. Would appeal help advance ultimate termination of litigation? c. If all three i. District Court certifies the question by so noting in its order ii. If application made within 10 days, CoA may, at its discretion, take the appeal. 4. The Collateral Order Exception (p.1154) a. A non-final order may be appealed if: ( compromises separability finality, urgency, importance) 57

i. It is unrelated to the merits of the case; ii. It has been completely resolved below; iii. incapable of vindication on appeal from final judgment iv. There is an important issue of controlling law (not just trial courts discretion) b. Collateral order: A Rule 24 motion to intervene is denied. Another: Court finds Philippines lacks sovereign immunity. Unreviewable in first case because youd have to do trial over; in second, because the point of sovereign immunity is to keep sovereigns out of court. c. Not a collateral order: Sued in Alaska; no contacts. 12(b)(2) denied. Can be reviewed on appeal from final judgment (apparently PJ is about not paying, not not appearing.) 5. 28 U.S.C. 1651: Extraordinary Interlocutory Appeal by Mandamus a. Request CoA to command DC to fix something when DC clearly screwing up b. Trial judge is respondent c. Must show: i. No other means of relief (appeal not other means if must endure trial) ii. Clear and indisputable right to relief. C. In re Recticel Foam Corp.: 2,000 Ps, 200 Ds in hotel fire. CMO orders cost-sharing plan among all Ds in return for P waiving work product protection. RFC notices interlocutory appeal, seeks writ of mandamus. 1. 28 U.S.C. 1291: CoA may only review final decisions. a. CMO like a discovery orderdeals with preliminary matters; orders are frequent, repetitive, and fragmented. Also subject to modification, may be altered or amended, and interruption of discovery process decreases efficiency. 2. Doesnt fall under collateral order exception a. Unrelated to merits? CMO intertwined with main case. (separability) b. Completely resolved below? (finality) Further orders forthcoming; dont know total costs c. Effectively unreviewable on appeal from final judgment (urgency): RFC can appeal from final judgment and recoup funds; other interested parties involved, too d. Important question of controlling law (importance): clearly within courts discretion to impose reasonable cost-sharing orders e. Would also disserve trial court CoA relationship f. No subject-matter jurisdiction over appeal VI. Standards of Appellate Review: How its reviewed once its there A. CoA judges good at law; trial courts good at finding facts and issuing orders i. Continuum on page 1176. ii. Based on each courts specialties and weaknesses (p.1176) B. De Novo standard 1. Like new 2. Used for questions of law and, sometimes, mixed questions of law and fact when the question is whether the trial court correctly applied law to admitted facts a. Did Ds act constitute intentional discrimination? 3. CoA has advantage on law questions, and promotes uniformity in the law 58

C. Clearly Erroneous standard 1. Although there is evidence to support finding, reviewing court is left with definite and firm conviction that mistake has been committed (similar to weight of evidence) a. If there are two plausible ways to view it, reversal is not appropriate. 2. Used for findings of fact by trial judge (in jury trial: on PJ, SMJ, other non-merits defenses in bench trial: all facts) 3. Measure of deference to trial judgeadvantage in making credibility judgments a. Anderson: standard applies even when findings based on written record that CoA sees: CoA cant reverse just because it would have found differently; an appeal is not a retrial; duplication of effort; trial judges role; Rule 52 makes no exception; parties shouldnt have to convince two courts of case D. Abuse of Discretion Standard 1. Used for decisions made in managing casediscovery, scheduling, admit evidence. 2. Was this the sort of thing a trial judge should do? 3. Hard to pin down real level of deference, but its wide. a. Case managementlots b. Entry of default judgmentless (severe) E. Reviewing JMOL motions for directed verdict, judgment notwithstanding the verdict 1. CoA applies the reasonable jury standard to the verdict, just like trial court 2. But then it reviews what the judge did: a question of law: reviewed de novo III. Claim PreclusionRes judicata I. WHY? The claim preclusion doctrine prevents claimants from litigating claims they fully litigated in a previous case. Three purposes for claim preclusion: A. Promotes fairnessD should be able to repose after first suit B. Preserves public confidence in judiciaryavoids inconsistent judgments C. Most importantly, promotes efficiency within the judicial system. II. Three elements necessary in order to bar a claim under claim preclusion: A. The claim must be the same as the claim (case) litigated in the previous case. i. Transactional test, usually B. The previous case must have resulted in a valid, on final judgment on the merits. i. Validhad jurisdiction, notice (sometimes valid without jurisdiction) ii. Finaljudgment entered (appeals, pending motions dont affect) iii. On meritsSOL counts C. The parties must be the same parties who litigated the first claim, and the claimant in the second case must be the same as the claimant in the first case. i. Unless there is an exception because of adequacy of representation / legal relationship III. 1. Claim must be the same as the claim litigated in the first case. A. Transactional test is most common to evaluate whether claim is the same 1. Under this test, different theories of recovery constitute a single claim if they arise out of the same group of operative facts. Focus on facts, not legal theory. a. Consider: are facts related in time, space, origin, and motivation? Do they form a convenient trial unit? Like compulsory counterclaims for plaintiffs. i. Now that we have Rule 18, and you can bring claims together, you must. B. Same evidence test: older, out of vogue 59

1. The suit is barred if the evidence needed to sustain the second suit would have sustained the first. a. Focus is on facts and legal theory. Holdover from pre-Rule 18 days, when plaintiffs may not have been able to join related claims. C. Primary rights test is rareseparate claim for each right that was violated. IV. River Park, Inc. v. City of Highland Park, 1998: River Park wanted permit to develop property; applied to City. Alleges City intentionally dragged its feet so property would be foreclosed and City could purchase at reduced price. Sues in federal court alleging Due Process violation under 1983. Dismissed with prejudice. Brings six-count claim in state court in tort, breach of contract, abuse of government power. 1. If court uses same evidence test, suit wont be barred. The evidence needed to prove a Due Process violation under 1983 differs from the evidence needed to prove the claims asserted in the present suit. 2. If court uses transactional test, suit will be barred. 1983 claim and present claims are all based on the alleged refusal to process and approve plans for development. 3. Court adopts transactional testif both tests are used, same evidence test renders transactional test a nullityany claim barred under same evidence is also barred under transactional, but same evidence allows many claims that would be barred by transactional test. Transactional test better promotes fairness, faith, and fficiency. IV. 2. The first claim must have resulted in a valid, final judgment on the merits. A. Validthat is, not void under 60(b)(4) 1. Void judgments usually result from lack of PJ, SMJ, or insufficient notice. Pennoyerjudgment void because court did not acquire jurisdiction over property by prejudgment attachment. a. Exceptions to rule i. If claim was fully and fairly litigated, even in the absence of jurisdiction, judgment probably valid unless court manifestly abused its authority. (Not just, got it wrong.) Default judgmentnot fully and fairly litigated. B. Finalwas case resolved such that nothing to do but execute the judgment? 1. Judgment is final and claim is precluded if court enters judgment, even if motions are pending and even if losing party appeals. 2. Filing concurrently in different courts doesnt preclude either claim, but one court usually stays proceedings. C. Judgment on the merits 1. Summary judgment, JMOL, usually default judgment (if you know and dont show up)all on merits 2. Rule 41(a) voluntary dismissal, lack of jurisdiction, improper venue, Rule 19not on merits (problem is with the court, not the claim) 3. SOLtrend is to consider it on the merits V. 3. Parties in second case must be same as parties in first case. A. Typically, judgment doesnt preclude nonparty from relitigating identical claim. 1. Nonparty gets his day in courtOne is not bound by a judgment in personam in litigation to which he has not been made a party. Hansberry, Pennoyer 2. Nonparty may have more incentive to fight than first party B. Exception: Nonparties in privity or having legal relationship with first party that ensures their interests were fairly represented. Six exceptions: 60

1. The person agreed to be bound by the first judgment, as in a test case where all plaintiffs have actions based on the same occurrence. 2. Nonparty has substantive legal relationship with first party: succeeding owner of property, bailee and bailorbased on needs of property law. 3. Nonparty was adequately represented by party with the same interests in the earlier suitclass actions, fiduciaries, guardians. 4. The nonparty assumed control of litigation in the first case and so had day in court. 5. The first party is trying to relitigate through a proxyold P controlling new case. 6. Special statutory scheme for certain causes of action that may only be brought on behalf of public at large (like bankruptcy). 7. Sometimes courts use virtual represenation exception: 7 balancing factors on p. 1202 i. Rejected by App Ct. in Taylor v. Sturgell C. Taylor v. Sturgell: Taylor filed suit seeking documents under Freedom of Information Act. Herrick, who restores aircraft with Taylor, already filed suit to obtain same documents. Taylor represented by same lawyer as Herrick, and Herrick gave him some documents obtained during discovery. DC Circuit held Taylors suit is precluded because Herrick qualified as his virtual representative by employing a seven-part balancing test. 1. Court likes clear-cut exceptions to the Hansberry / Pennoyer rule. 2. Virtual representation is like a common-law class action without Rule 23 safeguards. 3. The balancing approach provides no firm guidance and encourages broad discovery. 4. Not precluding claim wont spawn litigation; who wants to bring a suit they know theyll lose? (stare decisiswhy waste money?) 5. Remanded to determine whether Taylor is acting as Herricks proxy. i. Agency lawis Herrick the mastermind? Does he have the right to control Taylor and direct his legal moves? D. Counterclaims 1. A claim is only precluded if the claimant in the second action is the same as the claimant in the first action. a. 13(a) compulsory counterclaim rule has same effectRule preclusion. If party doesnt assert all counterclaims arising out of same transaction or occurrence, they cant be brought in a later action. b. If a defendant asserts a 13(b) permissive counterclaim, must bring all counterclaims arising from same group of operative facts, assuming transactional test, to avoid preclusion. Claimaint is the same not P/D are the same. VI. General Exceptions to Claim Preclusion 1. Consent. Claim preclusion is waivable; D can give his permission. 2. Court in first case reserved your right to relitigatesays wont treat claim as precluded. 3. P couldnt bring an aspect of the claim in the first suitjurisdiction or joinder problem. 4. P is explicitly permitted to relitigate by statute. 5. P experiences continuing or recurrent harm. a. Chemical burnclaim for pain, suffering. 50% chance of cancer. Cant sue on the chance; can sue later if cancer develops. 6. Some other extraordinary reasondoesnt come up much. Issue PreclusionCollateral Estoppel

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I. Prevents a party from relitigating an issue that was fully and fairly litigated in a previous lawsuit. A. Issuesmaller than a claim. Some element of a claimownership of property, etc. Harder to foresee than claim preclusion, which is why issue preclusion applies only to issues that were, not just could have been, litigated. 1. exs: ownership of property, validity of an instrucment, family relationship, contributory negligence. 2. Felger v. Nichols, issue of legal malpractice was precluded b/c brought up as defense in original suit. B. How to assert issue preclusion: 1. Move under 12(b)(6) and attach transcript from first case. 12(d) converts to 56 if court doesnt exclude documents. P cant move under 56(d)more facts wont help. II. Six elements must be present in order for issue preclusion to apply: A. The issue in the two lawsuits must be the same. B. The issue must have been actually litigated with full and fair opportunity in the first lawsuit. C. The court must have issued a valid, final judgment on the merits. E. The issue must have been essential to the outcome in the first suit. F. The party against whom the doctrine is asserted must have been a party or in privity with a party in the first lawsuit. III. The issue in the two lawsuits must be the same. A. In Panniel, causally related was close enough to causation. B. Issue can be one of fact or law. C. Look to legal effect. If P established causation, jury instructed to assume it. If D established lack thereof, ground for summary judgment for D. E. Panniel were the injuries caused by motor vehicle accident. IV. The issue must have been actually litigated and decided with a full and fair opportunity for parties to make case. A. Actually litigated A. A full trial isnt necessary. Some forum that involves submission of evidence and discovery will suffice. (comes up with administrative proceedings, workmans comp) i. Was there an opportunity to appeal? Was action in small claims court? ii. witnesses, evidentiary hearing. B. Issue preclusion doesnt apply if the issue was decided by ___ in the first suit. 1. Stipulation, admission, default judgment, confession C. Actually decided 1. Written decisions are easy; general verdicts require some inference a. Look to substantive law i. If D pleads contributory negligence, and general verdict for P: a. Decided that D was negligent, and P was not ii. If D pleads contributory negligence, and general verdict for D: a. Could be that D was not negligent; could be P was contributorily negligent. Not actually decided. 2. Doesnt matter if court probably got it wrongappeal is the remedy for that, not denial of issue preclusion. V. The court must have issued a valid, final judgment on the merits. (see Claim Precl) 62

A. Look at rules for finality. 54(b) is final, etc. If two cases are pending at once, and P gets partial summary judgment on causation, cant use it. Only part of a claim; judge can still revise it; cant be certified as final. VI. The issue determination must have been essential to the judgment. Cambria A. Concern that non-essential findings not considered as carefully. Just dicta. B. Appeals problem. Court finds D negligent and P contributorily negligent. D wins, and so cant appeal. Without requirement of legal necessity, the finding on negligence could be used against him in an action against P. Dont want winners to appeal b/c of issue precl. C. The question: Did the party win or lose the judgment because of a certain finding? 1. Suit 1: Court finds Jeffery, P, was not negligent; Cambria, D, was. a. Both are essential to judgment. Jeffery can use finding he was not negligent if Cambria sues him. 2. Suit 1: Court finds Jeffery, P, was negligent; Cambria, D, was negligent too. a. Finding of Cambrias negligence is dicta and not essential to judgment; Jeffery cant recover if he was negligent, regardless of what Cambria did. Jeffery cant use issue preclusion to bar relitigation on issue of Cambrias negligence in second suit. 3. Suit 1: Jeffery, P, negligent; Cambria, D, not negligent. a. Each finding is independently sufficient as a basis for judgment for Jeffery. Neither is essential. i. Circuit split on the issue. Some say no issue precluded; others, look to trial record. VII. The party against whom the doctrine is asserted must have been a party, or in privity with a party, to the first suit. A. Like legal relationships, adequacy of representation, proxy factor in exceptions to party requirement for claim preclusion. 1. Is there a substantive legal relationship between the first party and the party against whom claim preclusion is asserted? 2. Did the new party mastermind the first suit, or is the old party masterminding this one (relitigating by proxy)? B. Panniel: Parties found in privity, because insurance company adequately represented the Ds interests in the first lawsuit. SACHS says they got this wrong. VIII. Even if all elements of issue preclusion are present, court may deny issue preclusion at its discretion if one of five excepting factors is present and there is a clear and convincing need for a new determination on the issue. A. As a matter of law, the party was unable to appeal in the first case. i. Safeguard for full and fair litigation B. The issue is one of law, and i. The claims are really unrelated, or ii. A change in the law might allow a different outcome C. There is a change in the quality or extensiveness of procedures from the first case to the second i. Goes to full and fair, sort of first court has weird procedures we dont trust D. Party against whom preclusion is asserted had a heavier burden of persuasion in the first action E. Possibility of adverse impact on public interest, or it was not foreseeable at the time of the first action that the issue would arise again, or because the party sought to be precluded, 63

because of adversarys conduct or circumstances, lacked adequate opportunity or incentive to litigate fully and fairly in the first action i. Usually used only for public interest In Panniel, used for Diaz, hospital because court got in privity wrong ii. Might apply if there was a low amount in controversy in the first action IX. Cases on Issue Preclusion A. Issue preclusion generally 1. Felger v. Nichols: Nichols sued Felger for unpaid legal fees. Felger defended on ground that services were inadequate and introduced a lot of testimony to that end. Felger loses, then sues for legal malpractice. Nichols moves under 12(b)(6)12(d)56 for summary judgment. a. Felger fully litigated the issue of incompetence, and the final judgment for Nichols necessarily depended on a finding that he was not incompetent. Legal malpractice claim necessarily depends upon a showing of incompetence; issue preclusion bars Felger from bringing claim. B. Elements of issue preclusion 1. Panniel v. Diaz: P injured in auto accident; loses toes. Arbitration for PIP benefits against NJM Insurance, where arbitrator finds loss of toes causally related to accident. Panniel moves for partial summary judgment on causation in tort action against NJM, Diaz, driver of ambulance, RWJ, hospital. a. Issues identical: causally related and causation close enough. b. Actually litigated + decided with full and fair opportunity: evidentiary hearing, cross-examination, expert witnessesa mini-trial c. Valid, final judgment on merits: yes d. Essential to judgment: direct finding on causal relation e. Parties same or in privity: dramatically poor decisionDiaz and JWR not involved in first action; NJM is not controlling them in this one (they stand to lose); no substantive legal relationship f. Courts chooses not to exercise issue preclusion at its discretion because RWJ and Diaz didnt have adequate opportunity to litigate in first suitclear and convincing need for new determination. C. Was issue determination essential to the judgment? 1. Cambria v. Jeffery: Cambrias servant drove his car upon Jefferys; Jeffery sues in negligence. Court finds both parties were negligent. Cambria sues Jeffery; jury returns verdict for Cambria; JNOV for Jeffery on ground that Cambrias negligence was established in earlier action and issue preclusion bars relitigation. a. Finding on Cambrias negligence not essential to judgment in first action. Jeffery did not recover because he was contributorily negligentnot because Cambria was negligent, too. Issue preclusion does not bar relitigation on issue of Cambrias negligence. III. Non-mutual Issue Preclusion I. Non-mutual issue preclusion: issue preclusion when the parties to the second suit are not identical to the parties in the first suit. II. Non-mutual defensive issue preclusion: A defendant fends off liability by asserting issue 64

preclusion based on a prior finding against the plaintiff. (theyve already lost on that issue) 1. Can only be used against a party that had an opportunity to litigate fully and fairly in the first suit. Rationale: that party shouldnt be able to keep relitigating the claim so long as the supply of plaintiffs holds out. 2. Cannot be used against a party that was not a party to the first suit. Pennoyer &etc. B. Blonder-Tongue Labs v. University of Illinois Foundation: University sued a lab for infringing its patent. The jury decided the patent was invalid. Later, the University sued Blonder-Tongue for infringing the same patent. The Supreme Court approved the use of issue preclusion to prevent relitigation on the patents validity. a. Relitigation is a waste of resources. b. Trying one suit after another reeks of the aura of the gaming table. c. Based on an inquisitive vision of the judicial system i. Court finds truth on issue of validity a. Incentives Ps to fight like hell d. Rather than an adversarial vision i. Court simply adjudicates a dispute to see whos got the better claim C. Bernhard v. Bank of America: Relatives of deceased sue Cook, executor, for stealing money; jury finds money was a gift. Same relatives sue bank, saying money was improperly paid to Cook; issue preclusion, since Ps litigated and lost on propriety of conveyance of $ in first suit. III. Non-mutual offensive issue preclusion: A plaintiff tries to establish a defendants liability by asserting issue preclusion based on prior findings against the defendant. Still saves time and $ for claims that have already been litigated, and prevents the aura of the gaming table approach, but raises some fresh concerns: A. Incentive to join first suit 1. For defensive, there is an incentive for plaintiffs to join all defendants, since a finding against the plaintiff could bar later suits. 2. For offensive, there is an incentive for plaintiffs to wait in the wings, because a finding against the defendant would help them, and a finding for the defendant wouldnt hurt them. B. Incentive to litigate vigorously in first suit 1. For defensive, plaintiff can foresee later suitsshe would bring themand knows that if she doesnt fight and loses, she loses those claims, too 2. For offensive, the defendant cant foresee later suitstheyd be brought by other, absent plaintiffsand so takes a risk by not fighting like hell C. Prior inconsistent judgments against party against which preclusion is sought 1. For defensive, no inconsistent judgmentsfinding against party precludes later suits 2. For offensive a. What if first 25 Ps lose, and 26th wins? Can 27th use judgment? b. What if the first plaintiff is the 26tha statistical anomaly in a strong case for D? c. Increases leverage for early Ps in settlement, since finding against D establishes liability d. Promotes strategic use of attractive plaintiffs by attorneys D. Party lacked access to procedural opportunities in first action? 1. For defensiveplaintiff chooses the forum 2. For offensivedefendant is haled into court wherever plaintiff likes 65

E. Parklane Hosiery Co., Inc. v. Shore, 1979: Shore files class action against Parklane alleging false and misleading proxy statements. SEC brings suit against Parklane alleging misleading proxy statement and prevails in four-day trial. Shore moves for partial summary judgment on issue of false and misleading proxy statement. Problems: see above. a. Trial courts have broad discretion in allowing plaintiffs to use non-mutual offensive claim preclusion. Court should not allow if factors below exist, but okay here. i. Did P have opportunity to join first suit, or is P manipulating doctrine? a. Shore could not have joined SEC declaratory judgment action ii. Did D have little incentive to litigate vigorously in first suit? a. Parklane did; serious allegation, door open to new Ps if lost iii. Prior inconsistent judgments against D? a. None here iv. Did D, in first action, lack access to procedural opportunities available in 2nd? a. Nopefull and fair opportunity, with incentive v. Motion granted; issue of proxy statement is precluded vi. On right-to-jury-trial question, court says: since this is two cases, not just one, its okay to use the bench judgment in the second case, where there is a right to jury trial. F. Most states allow non-mutual defensive collateral estoppel, but not non-mutual offensive. Arbitration I. 9 U.S.C. 1-11 lays down rules for arbitration. In arbitration A. Parties agree to submit a dispute to a private decision-maker, and to be bound by his judgment. 1. May submit an existing controversy or one thereafter arising 2 a. Thereafter arising controversialreally a species of waiveryou give up your right to sue in court before you know what the dispute is B. 9 U.S.C. 2 Validity; enforcement of agreement to arbitrate 1. An agreement in a contract to submit disputes thereafter arising to arbitration, or a written agreement to submit an existing controversy to arbitration, is valid, irrevocable, and enforceable, unless there are grounds in contract law that make the contract itself revocable. a. No meeting of the minds, unconscionable contract, etc. C. Choosing an arbitrator 1. By name, agree to pick later, designate body of arbitratorsmost common (AAA) D. 9 U.S.C. 3 Stay of proceedings when issue referable to arbitration 1. If a party to an arbitration agreement initiates a legal action on an issue potentially referable to arbitration, the other party must apply to the court to stay the proceeding. The court will do so to decide if the matter is referable to arbitration, and if it is, the proceeding is stayed until arbitration is over. E. 9 U.S.C. 4 Failure to arbitrate under agreement 1. If an controversy arises and the other side wont participate in arbitration, you must petition the appropriate District Court for an order to compel arbitration. Five days notice, normal service rules for other party. To get the order, you must prove: a. There was an agreement; 66

b. The other side failed to comply. 2. If the issue is in dispute, the party in default can demand a jury trial. Jury decides whether there was an agreement and whether the party is in default. If the jury finds both, court grants order compelling arbitration, and failure to comply lands you in contempt of court. F. Emeronye v. CACI: E hired at CACI as temporary coder, then offered position as paralegal. E signed copy of standard Employer Agreement providing that any controversy arising from agreement should be settled first by mediation, and, failing that, by arbitration. P alleges failure to promote and retaliation. D moves to dismiss and to compel arbitration. 1. Circuit City established that FAA exemption for workers in interstate commerce applies only to transportation workers (1925 understanding of commerce clause). E not exempted. 2. E alleges adhesion contractno meeting of the minds. No fraud, duress, or mental mistakeunder VA law, your signature binds you unless one of those three. Contract is valid. 3. P alleges clause not enforceable because contains no clear waiver of statutory rights. Concern is that employers can make waiver of rights a condition of employment. But, she didnt waive rights; just agreed to assert them in a different forum. Agreement must be fair enough to preserve your substantive rights. (Cant say, arbitrate in AK.) 4. 9 U.S.C. 3 says court can dismiss when all issues in complaint must be submitted to arbitration, and that is so here. P wants a stay so she can exercise post-arbitration right to appeal without refiling. No. G. 9 U.S.C. 9 Confirmation of award of arbitrators 1. If parties have agreed that judgment of the court will be entered upon an arbitration award, and specify the court, any party can go within one year of the award to apply to the court for an order confirming the award. Court must grant order unless award is vacated, modified, or corrected. a. If no court specified, use district court for district where award made. b. Notice of application must be served on adverse party. H. 9 U.S.C. 10 Vacating the award 1. Award is only vacated for really serious stuffbasically, stuff so bad the arbitrators werent even being arbitrators. a. Purpose of arbitration is efficiencyquick and dirty way to settle disputes. Informal. b. Getting the law wrong not clear ground to overturnnot like an appeal. 2. Award can be overturned if a. It was procured by corruption, fraud, or undue means b. Evidence of impartiality or corruption in arbitrators c. Arbitrators guilty of misconduct that prejudiced a party d. Arbitrators exceeded power or exercised power so poorly that mutual, final, and definite award was not made. i. If time for award has not expired, court may direct re-hearing. ii. A non-party aggrieved by award can apply to the court to vacate. I. 9 U.S.C. 11 Modification or correction of award 1. On application of party, court can modify or correct award if: 67

a. Material miscalculation of figures or mistake in persons, property in award

Erie Doctrine
I. Old View: Law the Story Way A. Legislatures make laws. Legislative statutes abrogate the common law, which rests below statutory law. B. Courts interpret and apply these laws. II. New View: Law the Holmes Way A. By creating superior courts, legislatures impliedly confer upon the court authority to make law. B. Federal courts make federal law by decision. State courts make state law by decision. C. The common law is not a brooding presence out there. Law is the command of the sovereign and is made, not ascertained, by courts. The law is a judicial creation, a thing not ascertained, by made or declared. III. 28 U.S.C. 1652: The Rules of Decision Act A. The laws of the several states, except where the Constitution or treaties of the United 68

States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in the courts of the United States, in cases where they apply. 1. Issue: Do the laws of the several states include state common law? Holmes say yes; Story says no. IV. NY Const. Art. I, S14typical reception statute A. New York incorporates as state law: 1. Legislative acts in force through 1938, and post-1938 legislative alterations; 2. Resolutions of 1787 NY convention; 3. Resolutions of Revolutionary Congress; 4. Colonial statutes as they stood in 1775; 5. The common law as of 1775. B. So, a court trying to apply New York law looks to this statute. It says, look to the common law. 1. If a state court and federal court both look, and find different resultsshould be okay. They both followed the statute. V. Swift v. Tyson, 1842: Norton and Keith swindled Tyson. Tyson paid Norton with a bill of exchange, which Norton signed over to Swift. When Swift tried to collect from Tyson, Tyson had learned that the land he bought didnt exist; he refused to pay. Swift sues in SDNY, which certified question to Supreme Court. 1. Question is whether pre-existing debt is a negotiable instrument (we know that Swift is the bona fide holderif its a negotiable instrument, he can collect.) 2. Tyson says, recent NY cases support my claim. RDA says that federal courts have to follow state law, and decisions of NY courts are part of NY law. 3. Swift says, decisions of NY courts are evidence of the law, and not laws themselves. RDA directs federal courts to apply only state statues and fixed and ancient local customs. a. Story: Laws in the Judiciary Act of 1789 (became RDA) means, the positive statutes of the state and the construction state courts put upon them, as well as fixed and ancient local customs. b. Laws does not extend to questions of general law that dont depend on local statutes. c. Why? State and local courts do the same thinglook to general law and try to ascertain what it is. i. Here, if Swift cant recover, our whole system of credit is undermined. ii. And many places would allow itEngland, CT, MA. 4. Under Swift, federal courts sitting in diversity are bound to follow: a. State statutes; b. Maybe customs pertaining to local matters. 5. They are not bound to follow the common law as interpreted by the state, though theyll look to it. Instead, they look at all common law, in order to divine the true rule on the issue. VI. Black and White Taxicab: Brown and Yellow Taxi was a KY corporation. It dissolved in KY and re-incorporated in TN, then entered into an exclusive contract with a KY railroad. When Black and White infringed upon its exclusive contract, it sued. 1. Under KY law, the contract is void as against public interestmonopolistic. a. Not in any statute or state constitutioncommon-law rule. 2. In most other states, such contracts are okay. 69

a. State and federal courts go to the same source to interpret the common law, and both try to ascertain the rule. KYs principles are part of the general common law and are not local, so the Court is not bound to apply its rule on the contract. i. Most states allow- Lochner erafreedom of contractokay. 3. Holmes, in very important dissent a. There is no transcendental body of law outside of any particular state. The law does not exist without some definite authority behind it. b. States make laws in two ways: by legislature, by judiciary. Both are equal. c. If a state constitution said the state supreme courts decisions were law, federal courts would follow it. But in creating a supreme court, the constitution impliedly gives that power anywayso state common law has the force of statutory law. VII. Problems under Swift 1. Forum-shopping for out-of-state plaintiffs a. If federal law considers the Ds act illegal, P can sue in diversity in federal court. b. If state law considers Ds act illegal, P can sue in state court; D is barred from removing under 1441(b). 2. The idea was that state laws would tend to converge as the federal interpretation of the common law was applied; didnt happen. VIII. Erie Railroad Co. v. Tompkins, 1938: Tompkins walking along right-of-way in PA. Struck by train, loses arm. PA law: Tompkins is a trespasser, and RR has no duty to him in mere negligence. General common law: duty in mere negligence. Erie is NY corporation; diversity suit. CoA applies general common law and affirms judgment for Tompkins. 1. Brandeis: Recent scholarship indicates that Swift misinterpreted the Judiciary Act, and that the First Congress wanted federal courts to apply state common law. 2. Taxicab case showed how Swift doctrine can be manipulated by forum shopping. 3. Expectation: state judges would stop adopting federal interpretation of common law after Swift. Didnt happen. Swift sought uniformity in national law; what we have instead is lack of uniformity in state law, because acts covered by state law are judged differently forum by forum. 4. Constitutional problem: Congress cant declare substantive state laws; its power are enumerated. Nothing says the courts can do it, either: there is no federal general common law. 10th amendment problem governance in those areas is reserved to the states. The Judiciary Act, as applied in Swift, is unconstitutional (but its correct interpretation is not). 5. Fallacy of Swift: the notion that there is a true body of substantive law for judges to discover. a. Remanded for CoA to apply PA law. 6. The Rule of Erie: a. Except in matters governed by the Constitution or Acts of Congress, federal courts sitting in diversity must apply state law, whether statutory or common. 7. Reed in dissent: Swift misinterpreted the laws, but its application isnt unconstitutional. Not at all clear that, absent the judiciary act, federal courts couldnt interpret general common law for themselves. Article III, Section 2 might imply it, and the First Congress thought it unclear enough to pass the RDA. And, this might imply that Congress cant prescribe procedural rules for federal courts.

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Erie II I. Under Erie, in cases not governed by federal law, federal courts must apply state common law rather than taking their own view of what the common law might be. What if law is unclear? A. The State Supreme Court Predictive Approach: The Erie Guess 1. Federal court not bound by DC or CoA decisions 2. Instead, decide how state supreme court would decide the case. If there is no supreme court precedent, or only very old precedent, federal court looks to: a. Supreme court precedent in analogous areas, dicta, trends, decisions from lower courts, other, similar states, scholarship b. Court must be firmly convinced court would not follow old precedent i. Mason, 1957: Federal court predicts MS supreme court would reject privity requirement in products liability, though precedent said it would. But, rare. 3. Lower state courts just follow precedent. They dont have to guess, because the case will get to the state supreme court eventually. B. Certifying the Question 1. State statutes often allow federal courts to certify questions to supreme court. a. Some allow only when no controlling precedent 2. Rarely used: clogs dockets, time and $, most cases settle II. If state law changes between final judgment and appeal, appellate court applies new law. III. Erie and Choice of Law A. Old choice-of-law provisions were consistentplace of incident. B. Now, more complicated. Whose choice-of-law provisions to use? C. Klaxon Co. v. Stentor Electric Mfg. Co., 1941: Stentor transfers business from NY to DE; contracts with Klaxon to use best efforts to sell product; Stentor dissolves in NY in 1919. Stentor sues for breach of contract in 1929, gets judgment of $100k. Asks court to use NY law to calculate interest, adding $79k to judgment. Court grants because rights of parties are governed by NY law, which makes interest mandatory. CoA goes to Restatement of Conflicts, which says to use the law of the place of performance. 1. Erie demands that federal courts not make independent judgments on choice of law. 2. Otherwise, in diversity, federal and state courts in same stateon same street would dispense justice unequally. 3. Produces lack of uniformity among federal courtssuch is federalism. 4. The Rule of Klaxon a. A federal court sitting in diversity must apply the choice-of-law provisions of the state where it sits. D. Klaxon and Forum Shopping 1. Under Klaxon, a plaintiff cant walk across the street to be governed by different law. Intended to cut down on forum-shopping and ensure in-state uniformity. 2. But, in a diversity case, one party will always have an interest in being in federal court. Ps can file there, and out-of-state Ds can remove. If there were a uniform federal rule on choice of lawsay, lex loci delicti, the law of the place of the tortthe same law would apply in almost all diversity cases. Initial forum-shopping would be limited to state-federal for Ps, but D could remove if P chose state. 3. Under Klaxon, more forum-shoppingstate-by-state in federal court, especially when D is subject to general jurisdiction in many. Example: 71

a. Suing Wal-Mart over Fla slip-and-fall. FL law says, use place of incident. NY law says, use place of most significant interestNY, where P lives. AK law says, use place of most significant interestAK, where D lives. Three choices. E. Problems with Klaxon 1. Has impeded development of sound body of interstate law 2. Federal courts in different states apply different lawfederal forum-shopping IV. The Federal Common Law A. Brandeis in Hinderlider, same day as Erie: Question of apportionment of interstate stream between two states is a question of federal common law upon which neither statutes nor decisions of either state can be conclusive. B. That is, there are some areas of law reserved to the federal government. If Congress hasnt legislated in those areas, federal courts need to made federal common law to fill the gaps. 1. Not inconsistent with Eriefederal law governs; just hasnt been made yet. C. United States v. Standard Oil, 1947: U.S. soldier hit by truck. Government sues for indemnificationpay while he was hospitalized, hospital bills. 1. A matter that is essentially federal must be governed by federal law, and not the laws of the states. a. This is a matter of federal law because it relates to relationship between govt and soldierderived from federal sources, governed by federal authority. b. Federal fiscal concerns, as well. Govt money used to pay bills came from treasury. c. Clearfield: liabilities arising out of forged endorsement of govt check must be governed by federal law; authority for check had origin in Constitution and federal statute; not dependant on law of state. d. Erie was about keeping federal decision-making out of state law, not about extending state law into federal decision-making. e. Why shouldnt states govern? a. State has no incentive to allow govt to recover i. But, McCullochcant tax govt alone ii. If nobody can recover, state must have reason for it iii. We dont usually care about state laws that apply to govtspeed limit b. Dont want variation from state to state i. But, we always have that with laws (see speed limits) f. Should Court create federal right to indemnification? No. a. Congress knows federal employees get hurt, but it hasnt acteddont want to intrude or create surprise in well-settled field 2. The Rule of Standard Oil a. Where Congress has not acted affirmatively to regulate an essentially federal matter, the federal judiciary has the power to address it by creating federal common law. 3. Different than Hinderlider a. CA can made law; Court just thinks it shouldnt apply. V. 3 Options for Court: create right to recovery, wait for Congress, or incorporate state law by reference. A. If federal law is needed, but doesnt have to be uniform, court may borrow state law. 72

1. Establish a national bank, but, in fairness, set interest rates according to state law. B. Or, simply incorporate state law into the body of federal law. 1. Kimball Foods: Court determines priority of federal agency as creditor in reaching assets is a matter of federal law, but incorporates state law to determine priority. a. FTCA mostly incorporates state tort law C. Action and Reaction 1. Common for Congress to abrogate federal common law by statute a. Fifteen years after Standard Oil, Federal Medical Care Recovery Act creates statutory right to indemnity for injuries to soldiers. III. Erie Eerie A. Which issues are governed by the command of Eerie? 1. Substantive issues a. Issues that congress has no Constitutional authority to create law on B. Whats the problem? 1. Congress does have Constl rights for procedural laws (necessary and proper clause) C. So Whats Procedural? 1. Guaranty Trust Use State law if it affects chance of winning. Outcomedeterminative test. a. anything can do this. Constl they are allowed to do this, but as a matter of policy we want to keep all the cases the same for forum shopping concerns. 2. Byrd v. Blue Ridge same, except also take countervailing federal policies into account (right to jury is really important to us) 3. Hanna v. Plumer i. Part 1 for judical practice v. state rule look to the twin aims prospectively ii. Part 2 for Rule, test of constl, statutory authority. 4. Flow chart see notebook paper D. Issues 1. What is inequitable administration of the laws in Hanna 1? a. the suit will come out differently if the plaintiff is a citizen of a different state. b. Walker v. Armco Steel: a state citizen doesnt get the extra time added to SOL but the diverse citizen does, thats unfair. No reason Defendant should have to react differently depending on Plaintiff. 2. When are they really in conflict? a. Sometmes you can just get around it. b. Walker v. Armco Steel; FRCP 3 civil action is commenced by filing a complaint is not in direct conflict with state law that says commence means to serve process because the FRCP 3 means commence for Federal rules not everywhre. No Fed rule on point=apply Hanna 1. 3. What about 2072(b), what does it mean to abridge, enlarge, etc. a. Different views. b. Shady Grove: i. Plurality if it passes 2072(a) it is really procedural, so it cannot fail on 2072(b), they are two sides of the same coin. ii. Stevens opinion is the state rule substantive? And even if it isnt substantive, is it intertwined with substance so as to define the scope of the 73

right? If you are in the grey area you should go with the state. (ex: SOL, Burden of Proof rules, Appellate standards of review).

74