civ pro spillenger fall 2012

8/10/2019 Civ Pro Spillenger Fall 2012

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I. JURISDICTION ...................................................................................................................................... 4FEDERALSUBJECTMATTERJURISDICTION ................................................................................. 4

1. FEDERAL QUESTION28 USC 1331 ........................................................................................ 42. DIVERSITY28 USC 1332 .......................................................................................................... 4

SUPPLEMENTALJURISDICTION ....................................................................................................... 6ANALYZING SUPPLEMENTAL JURSIDICTION ............................................................................... 7

REMOVAL .............................................................................................................................................. 7

PERSONALJURISDICTION .................................................................................................................. 8ORIGINS .............................................................................................................................................. 8TYPES OF PERSONAL JURISDICTION ............................................................................................ 9CHALLENGING JURISDICTION ....................................................................................................... 9CONSTITUTIONAL STANDARDMINIMUM CONTACTS ............................................................ 10CONSENT .......................................................................................................................................... 11

NOTICE AND SERVICE OF PROCESSFRCP 4 ........................................................................... 12LONG-ARM STATUTES .................................................................................................................... 13PERSONAL JURISDICTION ANALYSIS ........................................................................................... 14

II. VENUE ................................................................................................................................................. 1428 USC 1391 .................................................................................................................................... 1428 USC 1392 .................................................................................................................................... 15

TRANSFER ............................................................................................................................................ 15FORUMNONCONVENIENS .............................................................................................................. 15

DIFFERENCE B/T FORUM NON CONVENIENS AND TRANSFER ............................................... 16

III. PLEADING ......................................................................................................................................... 16COMPLAINT ......................................................................................................................................... 16

SPECIFICITY OF A COMPLAINT: FRCP 8(a)(2) ........................................................................... 16PLAUSIBILITY IN PLEADING ......................................................................................................... 17

BURDENSINPLEADINGFRCP8(C) .............................................................................................. 19FRCP 8(c)AFFIRMATIVE DEFENSES ......................................................................................... 19

CONSISTENCYINPLEADING:FRCP8(D) ....................................................................................... 19DISFAVORED CLAIMS: ................................................................................................................... 20

HONESTYINPLEADINGFRCP11 ................................................................................................. 21FRCP 11(a): SIGNATURE ................................................................................................................. 21FRCP 11(b): REPRESENTATIONS TO COURT ............................................................................... 21FRCP 11(c)SANCTIONS FOR VIOLATIONS OF 11(b)................................................................ 22FRCP 11(d)INNAPLICABILITY TO DISCOVERY ........................................................................ 22

RESPONDINGTOACOMPLAINT ..................................................................................................... 23DEFAULT .......................................................................................................................................... 23PRE-ANSWER MOTIONS .................................................................................................................. 23THE ANSWER .................................................................................................................................... 25

COUNTERCLAIMS .............................................................................................................................. 26COMPULSORY COUNTERCLAIMS: FRCP 13(a): ......................................................................... 26

PERMISSIVE COUNTERCLAIMS: FRCP 13(b): ............................................................................. 26

CROSS-CLAIMS: .................................................................................................................................. 27REPLY ................................................................................................................................................... 27AMENDMENTS .................................................................................................................................... 27

FRCP 15(a) ........................................................................................................................................ 27FRCP 15(c): RELATION BACK ........................................................................................................ 28AMENDMENT ANALYSIS ................................................................................................................. 28

IV. PRE-TRIAL DISCOVERY ............................................................................................................... 29SCOPEANDRELEVANCE .................................................................................................................. 29PRIVILEGE ........................................................................................................................................... 30DISCOVERYDEVICES ........................................................................................................................ 30


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REQUIRED DISCLOSURES ............................................................................................................. 30DEPOSITIONSFRCP 30 ................................................................................................................ 30INTERROGATORIESFRCP 33 ...................................................................................................... 30REQUEST FOR PRODUCTION OF DOCUMENTSFRCP 34 ...................................................... 31PHYSICAL AND MENTAL EXAMINATIONSFRCP 35 ................................................................. 31REQUESTS FOR ADMISSIONSFRCP 36 ..................................................................................... 32

WORKPRODUCTDOCTRINEFRCP26(B)(3)................................................................................ 32EXPERTREPORTS:FRCP26(B)(4) ..................................................................................................... 33CLAIMINGPRIVILEGEORPROTECTINGMATERIALS:FRCP26(B)(5) ..................................... 33DISCOVERYABUSE&SANCTIONSFRCP26(G)&37 ................................................................ 33DISCOVERYANDPERSONALETHICS ............................................................................................ 34

V. PRE-TRIAL ALTERNATIVES TO ADJUDICATION .................................................................. 35SUMMARYJUDGMENTFRCP56 ................................................................................................... 35

STANDARD: ...................................................................................................................................... 35SUMMARY JUDGMENT INQUIRY: 2 QUESTIONS ........................................................................ 35

VI. TRIAL ................................................................................................................................................. 37PRESUMPTIONSANDBURDENS ..................................................................................................... 37JUDGMENTASAMATTEROFLAWFRCP50 ............................................................................. 38

DIRECTED VERDICTFRCP 50(a) ................................................................................................ 38J.N.O.V.

FRCP 50(b) ....................................................................................................................... 39

MOTIONFORANEWTRIALFRCP59 ........................................................................................... 39

VII. APPEAL............................................................................................................................................. 41FINALJUDGMENTRULE ................................................................................................................... 41EXCEPTIONS ........................................................................................................................................ 41

FRCP 54(b): ....................................................................................................................................... 41COLLATERAL ORDER DOCTRINE (Practical Finality Exception) ................................................ 42

INTERLOCUTORY APPEALS- 1292(b) ............................................................................................ 42WRIT OF MANDAMUS ..................................................................................................................... 42

STANDARDSOFREVIEW .................................................................................................................. 43FACTUAL FINDINGS ....................................................................................................................... 43

MIXED QUESTIONS OF LAW AND FACT ...................................................................................... 43LEGAL RULINGS ON THE MERITS OF CLAIM OR DEFENSE ..................................................... 44ANCILLARY OR DISCRETIONARY RULINGS................................................................................. 44HARMLESS ERROR .......................................................................................................................... 44

VIII. COMPLETED ADJUDICATION ................................................................................................. 45RESJUDICATACLAIMPRECLUSION .......................................................................................... 45

GENERAL RULES: ............................................................................................................................ 453 ELEMENTS ..................................................................................................................................... 451. VALID: .......................................................................................................................................... 462. FINAL JUDGMENT: .................................................................................................................... 473. ON THE MERITS: ......................................................................................................................... 47

COLLATERALESTOPPELISSUEPRECLUSION ......................................................................... 48

TESTS FOR DETERMINING PRECLUSION: .................................................................................. 48DIFFERENCE BETWEEN CLAIM AND ISSUE PRECLUSION: ..................................................... 48PRECLUDE WHEN (CONDITIONS): ............................................................................................... 48ACTUALLY LITIGATED AND DETERMINED: ............................................................................... 49ESSENTIAL TO THE JUDGMENT: .................................................................................................. 49MUTUALITY: ..................................................................................................................................... 49OFFENSIVE USE: ............................................................................................................................. 49

DEFENSIVE USE: ............................................................................................................................. 50PRECLUSIONANDPUBLICLAWLITIGATION: ............................................................................ 50


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I. JURISDICTION

TWO TYPES OF JURISDICTION:Generally need both:

SUBJECT MATTER JURSIDICTION: the power to hear the particular type of case Plaintiffplans to file

The subject matter jurisdiction of the federal courts is defined by who the parties to

the suit are, rather than the subject matter of the underlying dispute.

Anticipated defenses are not part of a well pleaded complaint.

PERSONAL JURISDICTION: jurisdiction over a defendants personal rights, rather thanmerely over property interests.

FEDERAL SUBJECT MATTER JURISDICTION

2 WAYS TO SATISFY:

Article III more widely, federal statute interprets it more narrowly

1. FEDERAL QUESTION28 USC 1331

28 U.S.C. 1331: Grants federal jurisdiction over cases that arise under federal law.

Question: is Plaintiff enforcing a federal right?

o

This is not in Article III, only an interpretation. Constitution would allow Plaintiff or Defendant to raise a question of federal

law

CONCURRENT:

Federal Question jurisdiction is concurrent (can also be brought in state court)

o

If state law creates a cause of action dependent on analysis of some federal issue,usually deny SMJ. (E.g. State tort claim for improperly labeled food, includes FDAstatutes)

o For federal law to be an ingredient of a case, one of the parties in the case wouldhave to rely on federal law to establish either a claim or a defense in the lawsuit, or atleast raise a federal issue in proving her case.

o Exclusive Federal jurisdiction for: patent,

Mottley-only the defense was rooted in federal law (5thamendment defense) but the claim itself was a

matter of state law. Holding: It is not enough for there to be some question of federal law in the case; theplaintiffs claim must itself be founded on federal law (well-pleaded complaint rule).

2. DIVERSITY28 USC 1332

28 U.S.C. 1332

(a): Federal courts shall have jurisdiction of all civil actions where the matter in controversyexceeds $75,000 w/o interest and costs, and is between--

(1):citizens of different states


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COMPLETE DIVERSITY:

All plaintiffs in a suit are from different states than all defendants at the time suit is brought

o Citi zenship is determined at time of f il ing sui t.

o Const. Art III 2: jurisdiction over controversies between citizens of different states.o It is clear that Article III now allows diversity jurisdiction as long assomeopposing

parties to the action are diverse.

Hawkins v. Masters-

Holding: Man dies in tractor accident. Girlfriend and mother sue for recovery of himin federal court but found that his domicile did not create complete diversity.

AMOUNT-IN-CONTROVERSY REQUIREMENT

Aggregating Claims:

Single Plaintiff can aggregate any claims against single Defendant to reach therequirement, regardless of same case or controversy

Two Plaintiffs cannot aggregate claims against single Defendant if claims are

separate and distinct Multiple Plaintiffs against multiple Defendants must have undivided interest

and single title or right. Class actions: all members must individually satisfy the requirement

If original claim is over 75k, then the counter-claim from other side can be heardregardless

Actual recovery is irrelevant:

Case is dismissed if claim is apparently less than $75,000 to a legal certainty

What about cases of intangible loss where the outcome is uncertain?

A plaintiffsgood-faith claim for more than the amount requiredcontrols, unless it appears to a legal certainty that the claim is really for

less

CORPORATE CITIZENSHIP

Corporation is citizen of state where incorporated and principal place of doing business (SeePersonal Jurisdiction | International Shoe)

Corporation that is incorporated is outside US is alien, but could also have state citizenship ifit has a principal place of business inside the US.

Test:Direct control nerve center. The statutes language supports the approach and theresadministrative simplicity. Language seems to support simplicity in statute.

o

Where the corporation maintains its headquarters and whre its officers direct, control,and coordinate the corporations activities

Partnerships- different, every single partner counts a separate domicile (so its difficult tohave diversity if you have a lot of partners)

Hertz v. Fri end- Principal Place of Business= nerve center


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MEANING OF STATE CITIZENSHIP"DOMICILE"

o

The courts have equated state citizenship for diversity purposes with the common lawconcept of domicile

Domicile:defined as the state where a party has taken up residence with theintent to reside indefinitely (or you don't have a specific intention of going

somewhere else)

Problem with domicile: determining what it means to intend to stayindefinitely in a state.

Persons can only have one domicile for purposes of diversity jurisdictiono

It means that a persons presence inthe state is open-ended.

Redner v. Sanders-

Holding: a person is a citizen of New York but lives in France. Lacks Domicilefor Diversity.

SUPPLEMENTAL JURISDICTION

28 USC 1367:jurisdiction overstate claims that forms part of the same case or controversy with

federal court claimLegal justification- efficiency, convenience, and fairness to litigants, would beawkward to permit them to join claims under rule 18 and then preclude federal courtsfrom hearing the entire case.

1367(a):grants jurisdiction if it is part of the same case or controversy; includes joinder ofadditional parties

1367(b): takes away jurisdiction: applies only to diversity cases, not fed. Question cases.1367(c): district court can decline supplemental jurisdiction

To get to 1367c, logically you have to figure out if the power even exists as filteredthrough 1367 (a) + (b)

If claim raises novel issue of state law, state law claim dominates, original jurisdiction claimshave been dismissed, or other compelling reasons/exceptional circumstances

If the federal claim gets dismissed early on in litigation process, it's proper todismiss state claim

If the federal claim gets dismissed very late: it would be serious waste ofresources to dismiss

First, claim must have federal jurisdiction under federal question or diversity

o Second, claim can be heard if it satisfies supplemental jurisdiction

To satisfy supplemental jurisdiction:o

State and federal claim must derive from a common nucleus of operative facto

So closely related that p would be expected to try them all in one judicialproceeding.

NOTE: a second claim can be against a different Defendant if common nucleus of operative fact(STO)


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ANALYZING SUPPLEMENTAL JURSIDICTION

Does 1367(a) grant supplemental jurisdiction to this claim?o

YES if it is part of same case or controversy

Does 1367(b) take away supplemental jurisdiction?o

Applies only to diversity cases, not federal question caseso Only takes away supplemental jurisdiction in claims brought by Plaintiffs against:

Rule 143rdparty

Rule 19: compulsory joinder

Rule 20: permissive joinder

Rule 24: intervention If additional Plaintiff is joined under Rule 19 or 24

UMW v. Gibbs- tri ed before existence of 1367, language codif ied in 1367Plaintiff loses job: brings federal Labor Mgt Relations Act claim and state conspiracy claim.HELD: State and federal claims must "derive from a common nucleus of operative fact." Soclosely related that Plaintiff "would be expected to try them all in one proceeding. The federalclaim gets into federal court under federal question jurisdiction. Second claim doesn't havefederal subject matter jurisdiction but it does arise from same nucleus: therefore, it can belitigated in federal court.

I n re Ameriquest-TILA Intertwined

Count 1 of the complaint under the federal Truth in Lending Act, seeking rescission of themortgage and statutory damagesCount 2 and 3 are state law fraud claims against all defendantsHELD: YES, the federal court can evaluate the state claims because Skanes claims are explicitlyconnected that her TILA claims would be affected by a dismissal of the state claimsIf courts dismiss counts 2 and 3, they may be unable to grant the full measure of relief Skanesseeks in Count 1. Because they cannot conclude that the resolution of one of her state claims willhave no effect on the resolution on her federal claims, they cannot deny supplemental jurisdictionThe court has to resolve one claim before deciding the remedy of the other, so the case hinges onthe declaration of what P owed because they were intertwined.

Szendrey Ramos v. F ir st Bancorp-really a case about State law that Federal court doesnt

want to hear because of the federal claims insignificance

Sued alleging violations of federal employment law (Title VII) and violations of the PRConstitution, defamation and tortuous interference with contractsHELD: NO. The PR law claims will not be under supplemental jurisdiction and will be dismissedwithout prejudice

o

The PR claims far outnumber the federal claims, and their scope exceeds the federalclaims

o They have their own elements of proof that are not necessary to establish the Title VIIclaims

o Also have complex or novel issues of state law (subsection 1 of 1367 c)

REMOVAL

There are many cases of concurrent jurisdiction: if Plaintiff files a concurrent claim in state court,Defendant may remove it to federal court. But only original defendants can remove, those madedefendants by a counterclaim cannot (SCOTUS statutory interpretation)


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UnderPennoyer, a deserted spouse could sue for divorce (though not alimony or child support) even if absentspouse could not be served within the state.

Pennoyerbecame impracticaltransient presence in the state: automobiles and corporations

TYPES OF PERSONAL JURISDICTION

1. IN PERSONAM:jurisdiction over a person. Presence of D in the state. Normal form of action

against an individual, company, or some entity

2. IN REM: Jurisdiction over the thing. Property in State. (attaching property, must be atbeginning of suit). Whatever damages can be recovered are limited to the value of theproperty.

"TRUE" IN REM: action literally against the property.Probate, registration of title.Once they are adjudicated, determines rights of everyone

QUASI IN REM:2 Types

TYPE I: dispute is really about the property itself, property is the subject matter ofthe underlying dispute. Not an adjudication against all the world, its an adjudicationagainst finite number of defendants.

This will never result in a conclusive judgment against everyone

EX: Quite title- when people are suing each other over the land

TYPE II: Attachment of propertyPlaintiff's claim is usually not connected to the property that is attached. Notnecessarily true that the underlying dispute is about the property. It is a way ofgetting litigation started.

GENERAL JURISDICTION

Defendants contacts with the forum state are sufficiently substantial to support jurisdiction overclaims unrelated to the contacts." Contact with the states are so pervasive that any aspect of theiroperation can be sued

SPECIFIC JURISDICTION

The more closely related the contacts and the facts giving rise to the claim, the more likely thecourt is to uphold jurisdiction. Claims only related to the contacts.

CHALLENGING JURISDICTION

COLLATERAL ATTACK: a defendant may attack a judgment rendered without jurisdiction in a2nd, collateral proceeding if the defendant did not appear at all in the proceedings

PRE-ANSWER MOTION (12(b)(2)): Or raise it as a defense in the answer

SPECIAL APPEARANCE:show up for the purpose of contesting jurisdiction. This is differentfrom presence and consent.


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CA: this is called "move to quash service of process" (If denied, Defendant must seek immediateappellate review)

CONSTITUTIONAL STANDARDMINIMUM CONTACTS

Minimum contacts can establish either General of Specific Jurisdiction depending on the contacts:

I nternational Shoe Co. v. Washington(1945)Minimum Contacts: substantial justice and fair play

Shoe: incorporated in Delaware and principal place of business in Missouri. No offices and didnt makecontracts in WA.HELD: state can assert personal jurisdiction b/c Shoe has minimum contacts w/forum state so "suitdoesnot offend traditional notions of fair play and substantial justice."2 part test: Contacts and Fairness.

Minimum Contacts: depends on quality and natureof contacts: soliciting business, sales reps.:receiving benefit and protection of laws.Fairness: factors to determine: magnitude, purposefulness, systematic and continuous nature;relation b/t contacts and cause of action; forum state's interest in suit. rem

NOTE: ShoeoverruledPennoyeronly with in personam cases

No Contacts Casual or Single Continuous Substantial orIsolated Act But limited Pervasive

No No Specific Specific GeneralJurisdiction Jurisdiction Jurisdiction Jurisdiction Jurisdiction

Applicability of minimum contacts to individuals and in rem jurisdictiono

Property alone in the state is not sufficient forgeneral jurisdictionthere has to be someother contacts

o If the property were the subject of the litigation,specific jurisdiction, then it is ok.

Shaff er v. HeitnerProperty won't support general jurisdiction but it will specific jurisdiction

Heitner filed derivative suit in Delaware against officers. (Quasi in rem Type II). HELD: the State cannotassert jurisdiction over a person on the basis of property alone. If the claim concerns the property itself,then jurisdiction exists. If the property is unrelated, jurisdiction on the presence of the property alonewould not support the State's jurisdiction. If a direct assertion of personal jurisdiction over the defendantwould violate the Constitution, an indirect assertion of jurisdiction should be equally impermissible. It isfundamentally unfair to the defendant. There must be some contact with the state. Concurring Opinion:said that real property could support general jurisdiction.

NOTE: Now, use Shoe'minimum contacts' test for all assertions of jurisdiction (quasi in rem too).Attachment jurisdiction is not gone: can't be used over unrelated claims or when the Defendantdoesn't have other contacts within the state.When Defendant is in the state but evading process, it would be ok to attach his property.

What types of contacts count to satisfy jurisdiction?

1980 1985 1990 2011 2011

WWV Burger King Burnham McIntyre Goodyear Pavlovich

Specific Specific specific

World-Wide Volkswagen Corp. v. WoodsonContacts: Purposeful Availment

Robinson bought Audi in NY; driving to AZ they crash in OK and sue retailer and regional distributor inOK. HELD: no personal jurisdiction when the only connection is the accident. Ds have no minimum


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contacts w/OK b/c they did not purposefully avail themselves to the state. Factors to determinejurisdiction:

o Foreseeability: foreseeable that a car will end up in OK But it's NOT foreseeability that a car will end up in OK Foreseeability thatD shouldreasonably anticipate being hailed into court in forum

state

Here, Ds do not advertise or distribute in OK, P's unilateral action took car there.

o Stream of Commerce:

o

Purposeful availment: the defendant chose to have some contact with the state;the idea ofpurposeful direction of products into the forum

Minimum contacts and fairness analysis:

Burger King Corp. v. RudzewiczContinuous but Limited: Specific JurisdictionBK (FL corp) sues Mich franchise in FL for back rent. HELD: Contract hadsubstantial and continuousconnection with the state: specific jurisdiction. Where Defendant has purposely directed activities to theforum state,jurisdiction is reasonable and Defendant will have to argue why it is unreasonable.

o Contacts: Defendant deliberately reached out beyond Mich and negotiated with a FL corporation. D purposefully availed himself of the protection of FL laws by entering into contract

governed by FL law.o Fairness: to defeat jurisdiction must show that litigation is 'so gravely difficult and

inconvenient' that a party is unfairly at a 'severe disadvantage' in comparison to his opponent. Wealth and negotiation power of P over D doesn't seem to matter.

AfterBurnham: (assuming Scalia's plurality opinion is good law) must ask if there are minimumcontacts or if there is residence (defined as presence in the state).

Bur nham v. Superi or Court(Plurality) No Need Contacts: Presence is Enough

W moved to CA. H served w/divorce papers while in CA doing business and visiting children. HELD:Scalia:jurisdiction based on physical presence alone constitutes due processb/c it is one of thecontinuing traditions of our legal system. Minimum contacts are fine but Shoe and the minimum contactstest were devised to apply only to cases that fall outside thePennoyer theory. Contacts are not an issuewith individuals. (But must still look to contacts with people).

Brennan: reaches the same result but applies reasonableness and fairness: protected by CA laws, etc.Contacts do apply. (Spilly: trivial and in any way at looking at the case).

McIntyre CaseFair to the defendant to subject them to litigation in forum only if they have purposely availedhimself or herself in that forum.

Pavlovich- not the typical internet case, since its not commercial

CONSENT

A Defendant can consent to jurisdiction: this creates jurisdiction in a court that would otherwise lackjurisdiction


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NOTICE AND SERVICE OF PROCESSFRCP 4

BACKGROUND

Pennoyer:

Equated power with personal service of process (didn't deal with notice)

Seizure of property accomplishes notice b/c law assumes that people keep an eye ontheir property

o

In rem proceedings

Today, Notice and Consent are separate: there could be a legitimate assertion of personaljurisdiction with insufficient notice and vice versa.

2 STANDARDS FOR NOTICE:

CONSTITUTIONAL STANDARD

Mull ane v. Central Hanover Bank & Trust Co.Due Process

Notice by mailDefendant notified customers of annual proceeding through newspaper ad. Proceeding determines

whether administrator violated fiduciary duty. HELD: due process requires notice to be such thatit is reasonably calculated to reach interested partiesand afford them an opportunity to presenttheir objections. If a person's whereabouts are unknown after reasonable efforts to find them,publication is probably sufficient. If their residence is known, notice by publication is not enough:must mail them. Whenproperty is brought into court,publication is not adequate.

**NOTE: the court acknowledged that some letters would not get through to recipients butreasoned that under the circumstances, where all recipients had the same interests, contacting acertain number of people in the group would serve approximately the same function as contactingthem all.

STATUTORY STANDARD: FRCP 4

4(d): Waiver of Service of Process: you don't have to make service if defendant agrees to waive it

(1)

Defendant who waives service does not waive objection to venue/jurisdiction(2)

Plaintiff may request that defendant waive service by sending request through mail.a)

If Defendant is in the US and fails to comply with waiver, Defendant must payfor costs of service

b)

Costs to effect process, costs + reasonable atty fees for any motion to collect(3)

Incentive to waive: Defendant gets 60 days to answer complaint instead of 20(4)

By waiving service, Defendant waives 12(b)(4) and (5) objections

4(e): Service upon Individuals in US

(1)

Besides (2), you can use any procedure that the state authorizes for service of processin their courts: (E.g. if the state allows for mail service, then mail service is ok)

(2)

Classic personal service: Serving Defendant personally or leaving a copy at his housewith someone of suitable age and discretion: you hire someone to do this.

4(m):Service must be within 120 days of filing complaint (court may extend with good cause)

4(k):See Long-Arm Statutes, next page.


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LONG-ARM STATUTES

Statutes authorizing courts to reach beyond their borders

1. Is it constitutional?2. Does it comply with the applicable long-arm statute?

28 USC 2361: FEDERAL INTERPLEADER RULE

In any civil action of interpleader under 1335, a district court may issue process anywhere in theUS: it doesn't have to remain in one area.

Gibbons v. Br own-Personal Jurisdiction for D whose only contact is lawsuit in FL earlier?

G sued Mr. B in FL for crash; 2 yrs later, Mrs. B sues G in FL for her injuries in same crash. Rule: FLlong-arm statute: Defendant must be "engaged in substantial and not isolated activity within the state."HELD: no personal jurisdiction over G. Mrs. B must show that long arm extends to G (statutory) and thatthe minimum contacts are sufficient to satisfy due process (constitutional). Case 1 was 2 years earlier andinvolved G plus a non-party (Mrs. B not even involved.) Even suit with same subject matter is not'substantial' enough contact.

NY Long-arm:Defendant must regularly solicit business or engage in any other persistent

conductand should reasonably expect act to have consequences in the state.

CA long-arm:authorizes jurisdiction in any case that would be permitted by ConstitutionDon't need 2 part inquiry (just Constitutional inquiryminimum contacts)

Long-arm that specifies activities or effects within state: pretty similar to minimumcontacts

NO FEDERAL LONG-ARM STATUTE

FRCP 4(k): Provides federal system with long-arm principles

(1)(A): the state long-arm statute will govern federal court sitting in state

(2):there is nationwide service of process: authorizes constitutional jurisdiction beyondlong-arm statute ONLY in situations where personal jurisdiction would be availablenowhere else in the US

NOTE: **This only applies to federal question cases, not federal diversity cases.** Also, 4(k)cannotcreate personal jurisdiction where Constitution does not permit it

COMPARISONPERSONAL v. SM JURISDICTION

Domicile is relevant to both types of jurisdictiono

But in applying the concept to determine personal jurisdiction, the court will ask whether

the defendants domicile is in the state where suit is brought.o When invoking this concept to determine subject matter jurisdiction based on diversity,

the court will compare the plaintiffs domicile to the defendants to make sure they differ.

Consent

o Personal: you can consent to personal jurisdictiono

Subject Matter: you can't consent to this


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PERSONAL JURISDICTION ANALYSISIs federal subject matter jurisdiction fulfilled?Check for waiver.

Notice: both statutory (FRCP 4) and Constitutional (Mullane)

Jurisdiction:o

Statutory: state long-arm or FRCP 4(k)(1)(B-D)o Constitutional:

General: Continuous and systematic contacts or

Specific: fewer and discrete

Jurisdiction based on presence alone constitutes due process (Burnham)

o NOTE: Split in Burnham (Mention this)

Little business in state does not equal general jurisdiction (WashingtonEquipment)

Minimum Contacts cannot offend notions of fair play and substantial justice (Int'lShoe)

Applies to all assertions of jurisdiction (Shaffer)

Fairness factors (Int'l Shoe):fairness

Defendant must foresee being haled into court (WWV): contactso

Plaintiff's unilateral act is not enough

Numerous contacts may overcome fairness unless gravely difficult (BK):both

If internet: must have intent to aim at forum audience (Young): contactsDetermines which district within the state has jurisdiction. Flows solely from statutory rather thanconstitutional sources.

**With determining venue, we're only determining whether venue is propermust still ask whetherthe state is proper.

In analyzing venue problems, first determine whether the action is based solely on diversityjurisdiction12(b)(3) is the defense for improper venue.

II. VENUE

28 USC 1391

(a): venue for an action based only on diversity:

(1): district where any defendant resides, if all defendants are from the same state(2): where a substantial part of the events occurred, or substantial part of property is situated.(3):a district in which any defendant is subject topersonal jurisdiction at the time action is

commenced, if there is no district in which the action may otherwise be brought.

(b):venue for non-diversity only actions:

(1):same as for (a)(2):same as for (a)(3):a district in which any defendant may be found if no other district is available.

(c):corporate defendants reside in any district where it is subject to personal jurisdiction

(1): If state has multiple districts, treat district as separate state and to see if jurisdiction exists(2):If no districtcorporation resides in district where it has the most significant contacts.


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Dee-K Enterpr ises Inc. v. Heveafi l

Cause of action: antitrust. Clayton Act lays venue in any district where the defendant is "found"or where it "transacts business." Foreign defendants cannot be found in any jurisdiction. 1391says American Defendants can be sued in any district where it can be found. Use sufficient

contacts analysis to determine "found."

(d):An alien may be sued in any district. (Personal jurisdiction must still be met though).

28 USC 1392

Any local civil action, involving property located in different districts in the same state, may bebrought in any of such districts.

TRANSFER

Transferring the case from one federal court to another.

28 USC 1404(a): for the convenience of parties and witnesses, in the interest of justice, a district courtcan transfer case to another district where it might have been brought.

Venue is proper but want to move it somewhere else.

28 USC 1406(a):when venue is improper, dismiss or transfer to proper venue (if interest of justice)

1406(b):if D waives venue objection, don't have to dismiss or transfer

28 USC 1631:when a civil action is filed in a court w/no jurisdiction, court shall transfer (if interest ofjustice) to any court where it could have been brought.

The action proceeds as if it had been filed in correct court on the date it was filed in wrong court.Venue is proper, but no personal jurisdiction.

Distinction between 1404 and the other two:

o With the others, the court was improper to begin with Once it's transferred using these two, the newcourt's laws should apply

o But with 1404(a): the new court should apply the substantive law that would have beenapplied by the oldcourt because there was no technical defect with the first court.

FORUM NON CONVENIENS

Even if a court has personal jurisdiction, subject matter jurisdiction, and proper venue, it may refuseto hear a case. (e.g. the case is so much more centered in a different district)

Required that an adequate alternate forum exists(can be other judicial system)

State courts can use this. (e.g. if all the evidence is in another state).

Piper A ir craft v. Reyno

Plane crashed in Scotland w/Scottish decedents. HELD: Plaintiff's forum choice is only overcome whenprivate and public interest factors point to a different forum.

Private: access to sources of proof, availability and costs of witnesses, possibility of view ofpremises, ease of case: all point to Scotland


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Public: strong "interest in having localized controversies decided at home," administrativedifficulties, trial of diversity case where law governs, avoidance of conflict of law problems,unfairness of burdening citizens in unrelated forum w/jury duty: all favor Scotland.

The possibility of a change in substantive law should ordinarily not be given substantial weight in theinquiry. This doesn't mean that it should never be a consideration: if the remedy provided by the alternativeforum is so inadequate, the unfavorable change in law may be given substantial weight.

DIFFERENCE B/T FORUM NON CONVENIENS AND TRANSFER

Forum non conveniens: common law, available to Defendant only, less discretion, original courthas personal jurisdiction and venue

Transfer: statutory, available to Plaintiff and Defendant, more discretion, orginal court need nothave personal jurisdiction and proper venue

III. PLEADING

The legal submissions that set forth the parties claims to relief and their defenses. It sifts out the factsand legal issues of the incident and gets things started. Two things are designed to do this:

Complaint & Answer

FRCP 7: PLEADINGS ALLOWED; FORM OF MOTIONS

(a)

Pleadings Allowed: a complaint; an answer; a reply to a counterclaim; an answer to any cross-claim; a third-party complaint; and a third-party answer.

(b)

Establishes the procedure for motions: an application to the court shall be made in writing, shallstate with particularity the grounds therefore, and shall set forth the relief or order sought.

(c)

Got rid of the old Common law pleadings

COMPLAINT

A.

COMMENCES ACTION:Filing commences action and is what accounts for the statute oflimitations

B.

FRCP 8(a):Elements and Specificity of a Complaint: A shor t and plain statement:1.

of the grounds upon which the courts jurisdiction depends2.

of the claimshowing that the pleader is entitled to relief, and3.

and a demand for judgment for the relief the pleader seeks

Form 11 is an example of a short and plain statement

SPECIFICITY OF A COMPLAINT: FRCP 8(a)(2)

Plaintiff must make a short and plain statement of the claim showing that she is entitled to relief.

May need to be more specific to avoid a demurrer (see Pre-Answer Motions)

ELEMENTS OF A CAUSE OF ACTION: a complaint must identify all the elements of the claim(the cause of action) at issue

1.

Some elements refer to conduct, others to mental states, and other to conditions.2.

Plaintiff must prove all elements to win: they have the burden of proof3.

If no cause of action is stated, defendant can file a demurrer:

Haddle v. Garr isonSurvived a 12(b)(6) motion


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Defendant filed for a demurrer under rule 12(b)(6) stating that Plaintiff was not injured in hisproperty because his at-will job was not his property. HELD: just because at-will employment isnot property for purposes of the Due Process Clause does not mean that the loss of at-willemployment may not injure petitioner in his person or property for 1985(2) (can count asinjury). The complaint is sufficient to infer a cause of action.

Gil li spie v. GoodyearDidnt survive a 12(b)(6) motion

HELD: demurrers are affirmed b/c the complaint did not state facts to support a cause of action.Not enough to allege an injury and call it negligence; negligence is not a fact, but is the legalresult of certain facts.

The problem with Gillispies complaint is that it pleaded legal conclusions ratherthan the elements of each legal claim.

This is in code pleading regime; under FRCP this would have been sufficient

Mitchell v. Archibald & KendallQuestion of law versus question of fact

Ds employees told Plaintiff to park across the street (where they usually told truck drivers). HELD: casedismissed. Plaintiffs argument imposes a new theory of liability. You cant base a claim on a new theoryof liability without claiming to extend or change the law. If Plaintiff alleged he was across street, then12(b)(6) is appropriate b/c no duty to P. If Plaintiff said I was on premises, then no 12(b)(6) (because they

are covered by the law) but they risk Rule 11 sanctions: 11(b)(3) ungrounded factual assertions.

Previous Case law does not permit the inference in the complaint

What constitutes being on the premises?o on premises means the definition of premises under Illinois law comes into play, and

the jury shouldnt be able to decide on the definition since its defined under case law.o

A Plaintiff does not have to specify that their complaint asks for an extension of existinglaw, they have to take their chances that their case is reasonable

Another theory on which we could regard the complaint as legally sufficient.

o If you affirmatively send someone into a dangerous area, then under the law of Illinois,there should be another duty that doesnt require you to be on the premises.

The dissent cited the Restatement of Torts which stated this.

PLAUSIBILITY IN PLEADING

Strength of InferenceRule: Pleading not only has to be factually presented but also plausible.

Bell Atl antic Corp. v. Twombly (2007)

Parallel business conduct is insufficient to prove a violation of federal antitrust laws; cause ofaction requires an agreement not to compete.

The claim was dismissed for failure to state a claim 12(b)(6), as the complaint only allegedparallel business conduct and then inferred an agreement.

Introduced a PLAUSABILITY requirement. PLAUSIBLE- seems to mean higher than

reasonable SCOTUS distinguished the requirement from heightened pleading under Rule 9.

Must introduce some facts that nudge the complaint from merely conceivable to plausible.(good reason for thinking its more likely than the alternative)

RULE:An antitrust claim cannot survive a motion to dismiss when it only alleges that themonopolists engaged in certain parallel conduct unfavorable to competition, if there is nofactual context suggesting conspiracy or agreement to do so.

Ashcroft v. I qbal (2009)


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A well-pleaded complaint requires non-conclusory, plausible, factual pleadings.

If there are no supporting facts and there is an obvious alternate explanation, theclaim is possible, but not plausible.

Showed that Twombly ruling was not only for antitrust cases, probably for all cases

Repercussions: harder for P to move a case into discovery. Seems to be more likely in complexcases where the plaintiffs dont have the best evidence at the beginning. 8(a)(2) is being

subjected to a higher standard


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BURDENS IN PLEADINGFRCP 8(c)

How do you allocate the burden to one party or another? Sometimes there will be statutes or commonlaw. It comes down to a policy choice in most cases.

1)

Burden of PleadingWho has to state something first

2)

Burden of Proofa.

Burden of Productionwho has to come forward with the evidence?b.

Burden of Persuasionwho has to persuade the court/jury of the elements of the claim?i.

Preponderance of evidence (civil cases)

FRCP 8(c)AFFIRMATIVE DEFENSES

In pleading to a preceding pleading, a party shall set forth affirmatively any defenses and arewaived if not included.

Gomez v. ToledoDefendant has burden of proving bad faith (See Qualified Immunity 9(b))

If its an affirmative defense, the P doesnt have to talk about it.

Plaintiff was demoted and wasnt offered a hearing. Defendant filed 12(b)(6) for failing to state aclaim because he did not allege he was fired in bad faith. Since qualified immunity is a defense,the burden of pleading it rests with the defendant. Also, the facts were within the knowledge of

Defendant.

Jones v. Bock- Prison case. Failure to Exhaust is an Affirmative DefenseUnder a 1983 claim it is necessary that all other avenues be exhausted. Failure to exhaust is anaffirmative defense. Whoever has the burden of pleading an element of a case also has the burden ofproducing evidence to determine that allegation.

Natural assumption that if P has the burden of pleading, they will have the burden of proving.o

If he fails on even one of the burdens, he could have a verdict directed against him.

A municipalities cannot raise the defense of qualified immunity

CONSISTENCY IN PLEADING: FRCP 8(d)

Rule 8(d): A party may state as many claims and defenses as it has, regardless on inconsistency. Thepleading is sufficient if any one of them is sufficient.

While separate inconsistent claimsand defensesare permitted, the factual allegations withineach claim or defense cannot be inconsistent with the alleged right of recovery, or else itwould defeat itself.

The ruling does not include cases where the plaintiff pleads contradictorily while knowing thetruth

The pleading is sufficient as long as any one of the claims is sufficient

On motion a judge can decide to sever the cases

McCormi ck v. Kopmann:Example of Alternative, Contradictory ClaimsPlaintiff alleged two inconsistent counts: wrongful death against Kopmann and violations ofDram Shop Act against the tavern. Freedom from contributory negligence is required to recoverunder count 1 and intoxication is required under count 4. HELD: the alternative counts werepermissible to each other by law. She did not know full truth and pleaded in the alternative.


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Why not try them both in separate cases?

o If separate: each jury might find that the other defendant (not being sued is liable)o Strategic advantage of having them both in the same case because jury might think

(erroneously) that they have to pick one or the otherPlaintiff is more likely to win.o When both Defendants are sued, each Defendant will find evidence against the other

to release their own liability.

DISFAVORED CLAIMS:

FRAUDFRCP 9(b) HEIGHTENED PLEADING REQUIREMENTS

Requires a Certain Particularity in Allegations

In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be statedwith particularity. Malice, intent, knowledge, and other condition of mind of a person may be averredgenerally.

Scienter= intent or knowledge of wrongdoing

Why do we have a special rule for alleging fraud specifically?

Fraud is uniquely bad for Defendants reputation; so Plaintiff has to be more specific. Protect Defendant against strike suits: a lawsuit that doesnt have much merit to it but the

Defendant wants to settle quickly because they dont want to deal with it.o This is the kind of situation and claim that supposedly gives rise to such suits.

Stradford v. Zur ich: Stradford stopped paying for his insurance, it cancelled. He started paying for itagain, and tried to make a claim 10 days later. Zurich counterclaims saying that Stradford was actingfraudulent and Stradford tries to dismiss it for a 9(b) claim under 12(b)(6). Court let Zurich amend itsclaim to further state what occurred.

PSLRA: Plaintiff must plead, in great detail, facts that constitute strong circumstantial evidence ofthe required state of mind. Both requirements, securities fraud and the required state of mind, must

be pleaded with particularity.

Tellabs v. Makor- Based on PSLRA. Supreme Court trying to resolve Circuit Court differencesComparative evaluation- must consider not only inferences urged by the P but also competinginferences rationally drawn from the facts alleged.

What is strong inference of the required state of mind?

it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent(higher standard than pre-Twombly)

Question of how it interplays with Twombley and Iqbal, since it sets a lower pleadingstandard even though the court was trying to set a higher standard

CIVIL RIGHTSNO HEIGHTENED PLEADING STANDARD42 U.S.C. 1983: Requirements:

1.

Deprivation of a constitutional (federal) right2.

Under color of state

Qualified Immunity: Affirmative Defense

o Government officials are liable if their actions or orders violate constitutional rights, but,they enjoy a qualified immunity if those actions took place under a reasonablemisapprehension of the law.

Available only to individual officers, not municipalities


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When Defendant is a municipality, Plaintiff must prove a "pattern or custom"(part of the second element)

o

Conundrum: Defendant must litigate to prove that he doesnt have to litigate

Leatherman v. Tarrant County Narcotics I ntelli gence & Coordination Un itNo Heightened

Pleading Standard for Civil Rights--**Does not apply to Individual Officials

Two separate incidents: forcible entry into a home based odors associated with narcotics. SC Held: thecourts cannot apply a heightened pleading standard in civil rights cases. Required under FRCP 8(a)

is a short and plain statement of the claim. Rule 9(b) does not include municipal liability. IfCongress wanted to include civil rights complaints, they would have.

HONESTY IN PLEADI NGFRCP 11

This chills creative advocacy because it sanctions lawyers.

FRCP 11(a): SIGNATURE

Signature constitutes endorsement of pleadings

FRCP 11(b): REPRESENTATIONS TO COURT

Requires four things: that a pleading, written motion, or other paper, is formed under the best of thepersons knowledge. The party is certifying that:

1.

Certifies that what lawyer files is not for improper purpose2.

Certifies that what the lawyer files is legally non-f ri volousan argument for extension of law will not violate this: you DO NOT have to specifythis with legal arguments. If you were making factual assertions that are not based onlaw, you DO have to specify an extension. (See Golden Eagles and Mitchell).

3.

Certifies that allegations arewell -grounded in fact4.

Certifies that denialsare warr anted on evidence or are reasonably based on a l ack of

information

Golden Eagle v. Bur roughs:11 (b)(2)-Sanctions not allowed for not claiming extension ofexisting law

Argument: not substantiated by existing law and not specified as an extension. District judgeimposed Rule 11 sanctions against Defendant for not stating good faith extension and not citingcontrary authority. HELD: Rule does not require counsel to differentiate between supported byand extension of law. District Ct. makes the Rule more complex and creates costly obstacles forlawyers. Rule 11 does not require a lawyer to find all contrary authority and decide whether it isindeed contrary or distinguishable as long as the argument is objectively reasonable. Doesn't

sanction frivolous arguments, only frivolous pleadings.

Walker v. Northwest: 11(b)(2) Legal Frivolousness. Sanctions for failing to plead complete

diversity.

If he had alleged that party on other side were all citizens of SD, it would have been untrue=11(b)(3), but his contention that federal court has jurisdiction is just to plead own and state someof defendants are different. This fails to do what the law requires so his complaint is deemedfrivolous.

Claudene Chr istian v. Mattel, Inc.: 11(b)(3)Lawyer didnt adequately research because the back of the Mattel doll clearly says 1991, whichimplies that it came first. But the other misconduct cant be included, dont know if Rule 11sanctions should be used.


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FRCP 11(c)SANCTIONS FOR VIOLATIONS OF 11(b)

Initiated by:1.

Motion: can be made by either party. made separately from other motions and shall describethe specific violation of (b).

(A)

It shall be served within 21 days after service of motion (giving it to the other party)(B)

A law firm shall be heldjointly responsible for violations committed by its partners,associates, and employees.

2.

On Courts Initiative: the court may enter an order describing the violation of (b) and directan attorney to show cause why it has not violated (b).

(A) No monetary sanctions against a represented party (11(c)(5)) for a violation of11(b)(2)

Implies that a represented party may be sanctioned.

Nature of Sanctions: Limitations:A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition ofsuch conduct. The sanction may consist of: directives of a nonmonetary nature, an order to pay apenalty into court, or, if imposed on motion, an order directing payment to the movant of some or allof the reasonable attorneys fees and other expenses incurred as a direct result of the violation.

SAFE HARBOR PERIOD

When Rule 11 sanctions are initiated by motion, there is a 21 day safe harbor period so that theparty who submitted the challenged paper has an opportunity to withdraw or correct within that timeframe. If Rule 11 sanctions are initiated by the court, no safe harbor period exists, rather the partyhas the opportunity to explain why they dont deserve sanctions.

FRCP 11(d)INNAPLICABILITY TO DISCOVERY

This rule does not apply to disclosures and discovery requests, responses, objections, and motionsthat are subject to the provisions of Rule 2637.


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RESPONDING TO A COMPLAINT

DEFAULT

FRCP 55DEFUALT

(a)

Entry: when a party has failed to plead or defend, the clerk shall enter the partys default.A defaulting party is deemed to have admitted all well-pleaded allegations of thecomplaint.

(b)

Judgment: Judgment by default may be entered as follows:1.

By the clerk: Can only be made if three prerequisites are met:a.

Defendant was defaulted because of a failure to appear andb.

Defendant is not an infant or incompetent person andc.

The moving party submits an affidavit establishing that the amount due iseither a sum certain or a sum that can be made certain by computation

2. By the court:in all other cases the party entitled to a default shall apply to the court(c) For good cause, the court may set aside an entry of default(d) A default judgment may be entered against US govt only if claimant establishes a claim or

right to relief by evidence that satisfies the court

o It is still incumbent on the plaintiff to prove the damages, just because default judgmentis against D, doesnt mean that plaintiff is entitled to all the relief he is requesting

o The entry of default deprives a defendant of the right to contest the factual allegations ofthe complaint but does not prevent Defendant from appearing to challenge the amount ofdamage

PRE-ANSWER MOTIONS

What is a motion and how does it differ from a pleading?o Pleadings: make factual allegations

o

Motion: simply a request to the court for an order. The motion itself is quite brief.

The type of motions you can make are limitless.

They are supported by a brief that makes the arguments.

FRCP 12

FRCP 12(a)(1): (A) A defendant must serve an answer (i) within 21 days after being served withthe summons and complaint, or (ii) if service of the summons has been timely waived on requestunder Rule 4(d), within 60 days. Government has 60 days regardless.

FRCP 12(b): defenses by motion that may be made at the discretion of the pleader:A motion asserting any of these defenses must be made before pleading if a responsive

pleading is allowed.(1)

lack of jurisdiction over the subject matter(2)

lack of jurisdiction over the person(3)

improper venue(4)

insufficiency of process(5)

insufficiency of service of process(6)

failure to state a claim upon which relief can be granted: can be made sua sponte ifpatently meritless

o

Can be raised at anytime before trial but only once(7)

failure to join a party under Rule 19


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Filing a pre-answer motion under Rule 12(b) is an alternativeto answering the complaint

When a federal court grants a 12(b)(6) motion, it is almost always done with a leave for thePlaintiff to amend the complaint.

FRCP 12(c): Motion for judgment on the pleadings:After the pleadings are closedbut early enough not to delay triala party may move forjudgment on the pleadings

Can be made at any time. E.g. If Defendant admits all relevant allegations but puts forth anaffirmative defense that Plaintiff believes is not sufficiently stated: If true, Plaintiff should win.Defendant admitted all allegations and defense is unsustainable. If Plaintiff loses, then theresstill a trial but NOT on the facts of the case, only on the affirmative defense (the facts havealready been admitted by Defendant).

FRCP 12(g): Only 1 pre-answer motion is allowed, must lump all defenses

If a party omits any defense or objection then available to the party, the party shall not thereaftermake a motion based on the defense or objection omitted, except a motion as provided insubdivision of (h)(2). Only waivable if available.

FRCP 12(h): There are 3 categories of 12(b) defenses:

1) Technical12(b)(2)-(5): These are disfavored because they are technical. If

Defendant does not raise them in first piece of paper to court, they cannot be raisedEVER.

2)

On the Merits12(b)(6)&(7): These are more favored because they are on themerits of the claim so they can be raised anytime before trial.

3) 12(b)(1): Can be brought up any time because subject matter jurisdiction is based on

the legitimacy of the court and is very important.

Other FRCP 12 motions:

FRCP 12(e):more definite statement (rarely granted): D claims that complaint is so vague thatshe cant respond

FRCP 12(f):motion to strike (rarely used/granted)Can eliminate part of the pleadingsConceptual relationship between 12(f) and 12(b)(6):


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THE ANSWER

1. DENIALSFRCP 8(b) I didnt do it:A party shall state in short and plain terms the partys defensesto each claim asserted and shall admitor deny the averments upon which the adverse party relies.8(b)(6)- any allegation that is not denied is deemed admitted

a.

Types of Denials:i.)

General Denial :D denies every allegation in Ps complaint. Dangerous becauseat trial, D must actually contest each and every allegation, or face Rule 11sanctions.

ii.)

Specific Denial: Defendant denies particular allegations

Zieli nski v. Phil adelphi a Piers, I nc.A general denial must be made in good faithPlaintiff sued the wrong party for an accident. HELD: the denial should have been more specificas to which parts of the complaint they deny and admit. Since D was not specific enough, areasonable P would have understood the denial to be for negligence and not for owning theforklift. P should have split the statement of negligence and ownership. D waited until trial to

raise their defense that P sued the wrong party, which is evidence of lack of good faith.

2. AFFIRMATIVE DEFENSESYes, butMust raise in answer, not at trial. ?FRCP 8(c) (see above):Lists the affirmative defenses Defendant can raise (list not exhaustive)

Layman v. Southwestern Bell Telephone Co.

Plaintiff sued for trespass. D issued a general denial and tried to put into evidence an easementallowing their use of the land. HELD: an easement is an affirmative defense and Defendant hasduty under 8(c) to set forth an affirmative defense. The problem with Ds general denial is that itclaims that they didnt do it. But the easement is not I didnt do it evidence; it is a Yes, butdefense.

3. A SPECIAL AFFIRMATIVE DEFENSE: THE STATUTE OF LIMITATIONS

US v. Kubri ckNotice of Injury Standard. Once you know the existence and cause of injury, the

clock starts running.Plaintiff injured when medication for surgery caused hearing loss. In malpractice + negligence claims musthave notice of injury standard. HELD: SOL accrues when P has notice of probable cause of injury, not

when injury begins or when P has notice of injury or infringement on legal right. P had power to get infobefore S of L ran out.

o Clock begins to run when claim accrues (important point). Court is implicitly sayingthat you should reasonably know that you have a cause of action when you know thecause

o

Accruement: date on which Plaintiff could have commenced suit.o

Requires reasonable inquiry on the part of the Plaintiffo Dont want stale claims

o Fraudulent concealment can toll the case

Plain English Common Law FRCP

So What Demurrer Motion to Dismiss for failure to state a claim uponwhich relief can be granted, 12(b)(6)

I didnt do it Traverse Factual Denial 8(b)

Yes But Confession and Avoidance Affirmative Defense 8(c)

Technical Objections Dilatory Plea Motion to dismiss for lack of jurisdiction, Motionfor more definite statement, etc. 12(b)(1)-(b)(7)


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Unlike other affirmative defenses (easement, cont. neg.), all of which require the setting out ofadditional facts, the statute of limitations is built into Plaintiffs claim itself.

o

Courts allow you to file it in a pre-answer motion b/c no new facts are alleged, just dates

COUNTERCLAIMS

The goal of Rule 13 is judicial economy furthered by a single presentation of facts

COMPULSORY COUNTERCLAIMS: FRCP 13(a):

Compulsory if it arises out of the same transaction or occurrence(STO) that is the subjectmatter of the opposing party's complaint. Compulsory counterclaims provide relief to D for beinginvoluntary brought to court

2 implications:1. Must be asserted or forever waived (BARRED by res judicata if not asserted in thefirst lawsuit)

2. The only kind of counterclaim that can be heard by a federal court even if it doesnthave its own independent basis of jurisdiction, as long as its arises from same transactionor occurrence.Supplemental Jurisdiction (28 USC 1367):jurisdiction over all other claims that arerelated in the action

Plant v. Bl azer F inancial ServicesCompulsory Counterclaim

P sued under TILA for failure to make disclosures required by the Act. D counterclaimed for money.HELD: debt counterclaim is compulsory. Reasoning: relationship of the claims and rights of theparties and the common factual basis (the loan) of the claims shows a relationship between the claimand counterclaim.

PERMISSIVE COUNTERCLAIMS: FRCP 13(b):

Counterclaim is permissive if it does not arise out of the same transaction or occurrence as the

plaintiff's complaint. If not brought, it is not waived.Must have I ndependent basis of Subject Matter Jur isdiction:Supplemental jurisdictionis not available because a permissive counterclaim does not arise out of the STOAlways check to see if there is a federal question or diversity first1367(b) does not kill supplemental b/c counterclaim is by D not P

Type: Addition of Claim byPlaintiff or Counterclaim byDefendant

Can Claim or Counterclaimbe Raised?

Federal JurisdictionRequirement

Consequences of Failure toRaise Claim

Addition of claim Plaintiff may join as manyclaims as she has againstDefendant

Source: FRCP 18(a)

The additional claims may beheard by the federal courteven if they lack anindependent basis for federal

jurisdiction if there is acommon nucleus ofoperative fact

Source: the principle of

pendent or supplemental

jurisdiction as codified in 28

USC 1367

Failure to join the additionalclaims will result in their

being forever barred if theyarose out of the sametransaction as the initial claim

Source: Federal case law

applying the same

transaction theory of claim

preclusion

Counterclaim Defendant can raise anyavailable counterclaimagainst Plaintiff

Source: FRCP 13(b)

Counterclaim may be heardby the federal court even if itlacks an independent basis forfederal jurisdiction if it arisesout of the same transaction

Failure to raise thecounterclaim will result in its

being forever barred if itarose out of the sametransaction or occurrence as


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or occurrence as thePlaintiffs claim.

Source: 28 USC 1367 and

case law

the Plaintiffs claim.Source: FRCP 13(a)

CROSS-CLAIMS:

FRCP 13(g):a party may bring a cross-claim against a co-party arising out of the same transaction or

occurrence. Permissive and must have SMJ.Since they always arise from STO, they have supp. Jur.

REPLY

Usually pleadings end with answer.FRCP 7(a):requires the plaintiff to file a responsive pleading to a counterclaim.

-

Answer to another partys answer. Only when the court orders it.-

Plaintiff can use all the same 12(b) motions as Defendant had available-

Counterclaims can be confused for affirmative defenses:

o E.g. Fraud: can be affirmative defense to breach of contract or can constitute acause of action

AMENDMENTS

FRCP 15(a)

A party may amend once before a responsive pleading is served as long as no prejudice, unduedelay or bad faith. (Done because a party may want to change story or discovery may revealfacts).

a.

If no responsive pleading required, may amend within 21 days after it is servedb.

If D serves motion, P still has a right to amend (motion is not pleading)

PREJUDICE:at some point, a party ought to be able to pin down the other side.

The court can freely give leave when justice so when requires.

Beeck v. Aquaslide N Dive Corp.Investigations by 3 ins. co. found it made by D and D answered that he did manufacture it. Uponinspection, he concluded that he didnt and amended. HELD:justice requires amendment. P mustshow prejudice to oppose but it was not the shown here. D did not act in bad faith when amended.They relied on Plaintiffs insurance and other insurance companies reports.

The tension in this case: Defendant has questionable excuse for having mispleaded in the firstplace, and Plaintiff will suffer crushing prejudice if amendment is allowed.

Is there prejudice?

o If Defendant wins on the issue of manufacture, then Plaintiff will not be able to sue

because of the statute of limitations;

But the real wrongdoers deceptively similar slide might be the basis of fraudand might toll the statute of limitations.

o What is the prejudice then?

If he will be able to proceed against the proper wrongdoer, the prejudiceseems less obvious.

Is Plaintiff being deprived of his remedy if it werent for Defendant?

No: hard to find the real wrongdoer

Why does the court decide the way they did?


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o If it went to trial, what would happen at trial? The trial would be a farce: a falsecontention: They wouldnt be able to bring up the issue that they werent themanufacturer

o

Even if Beeck finds MR.X, the real defendant, Beeks isnt really going to get muchso maybe its better for Aquaslide to not be forced to go through it (Lesser of twoevils)

FRCP 15(c): RELATION BACK

FRCP 15(c)(1): if Statute of Limitations has run:

(a)Relation back is permitted by law that provides the statute of limitations applicable to theaction, or

(b)

The claim asserted in the amended pleading arose out of thesame transaction or occurrence,or

Moore v. BakerNot Same T/O, No Relation BackP alleged pre-surgery issue, amendment tried to include surgery and post-surgery.HELD: the new claim does not arise out of the same T/O. The complaint did not put Don notice that new claims of negligence might be asserted. P would have to provecompletely different facts.

Bonerb v. Richard J. Caron FoundationSame T/O Yes Relation BackP alleges court was negligently maintained and wants to add counseling malpractice.HELD: P can amend to include counseling malpractice. The allegations in bothcomplaints derive from thesame nucleus of operative facts. Plus, the complaint gave

adequate notice of a new cause of action. Discovery has not yet expired allowingDefendant to do the remaining discovery.

NOTE: Rule doesnt have anything to do about notice but the courts add it in there toresolve these grey area cases. Also inMoore,there was discovery but not inBonerb.

(c)

Changes the party or the naming of the party; the party to be brought in by amendment, giventhat the party:

a.

Has received such notice of the action that the party will not be prejudiced inmaintaining a defense on the merits, and

b.

Knew or should have known that, but for a mistake about the identity of the properparty, the action would have been brought against him.

Worth ington v. WilsonDefinition of Mistake, NO Relation BackP filed complaint naming unknown police officers and amended naming the real Ds.HELD: The amendment does not relate back under FRCP 15(c) because the amendmentdid not correct a mistake, rather corrected a lack of knowledge at the time of theoriginal complaint

AMENDMENT ANALYSISHas statute of limitations run on new claim?

1.

Nodo Rule 15(a) analysisblameworthiness of D + prejudice to P2.

Yesdo Rule 15(c) relation back analysisa.

Does claim relate back?i)

Rule 15(c)(2): The claim asserted in the amended pleading arose out of thesame transaction or occurrence, OR

ii)

Rule 15(c)(3): D received notice?i.

Then do 15(a) analysis


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IV. PRE-TRIAL DISCOVERY

GENERALLY

Discovery often ends litigation:o Used to find evidence to prove/disprove claims: make more informed decisions.

(intimately tied to summary judgment or settlement)

o Inequality of resources: one side can wear down the other

Eliminates surprise at trial: imposes reasonable disclosure requirements on the parties

FRCP 26: general provisions governing discovery

SCOPE AND RELEVANCE

FRCP 26(b)(1)Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim ordefense of any party.

RELEVANT:reasonably calculated to lead to admissible evidence(broader than admissible): itdoesnt need to be admissible to be relevant

o Another test: Probative of an allegation: inferential information

Davis v. Precoat Metals- Relevant b/c of PretextPlaintiff filed a request for previous complaints of racial discrimination. HELD: Narrowly tailoredto the motions of the complaints so they granted the motion to compel. The idea of pretext madethe discovery relevant.

Steff an v. CheneyIrrelevant because not used as support for an inferencePlaintiff was discharged from Navy because he was openly gay. He refused to answer questionsabout prior conduct. HELD: The navy is claiming that he was discharged because of his status asa homo, so conduct is irrelevant; only relevant if it was a basis for discharge. Discovery must berelevant ot the claim itself, not relevant defenses by the other side.If he had denied his status as a homosexual, then conduct would have been relevant: inferentialrelationship between the two.

FRCP 26(b)(2): LimitationsLimitations by the court if it determines:(i)

Unreasonably cumulative or duplicative or is obtainable from some other source that ismore convenient, less burdensome, or less expensive

(ii)

Ample opportunity to obtain the information sought(iii)

The burden or expense of the discovery outweighs its likely benefit taking into accountthe needs of the case, the amount in controversy, etc.

FRCP 26(c): Protective OrdersThe court may order to protect a party from annoyance, embarrassment, oppression, or undueburden or expense.

Motion must be made in good faith and must show that they tried to resolve the disputew/o court order.

FRCP 26(e): Supplementation of Disclosure and Responses(1)(A): duty to seasonably amend a response to an interrogatory, request for production, orrequest for admission if you become aware that it is incorrect in any material way

Failure is equivalent to disclosing false information.Does NOTinclude depositions: already built-in incentive to be truthful: its a swornstatement.

FRCP 26(f):discovery is postponed until after 26(f) discovery conference


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PRIVILEGE

FRCP 26(b)(1):Parties may obtain discovery of any matter, not privileged,that is relevant to the claimor defense of any party

Drawn from the laws of evidence.

Protects information from certain sources:

o

It does not block the underlying facts: the information could be discovered from adifferent source. All privileges can be waived (explicitly by party or implicitly by action)

Traditional privileges:o Attorney-client, doctor-patient, priest-penitent, spouses, self-incrimination

Privileges have nothing to do with relevance.

DI SCOVERY DEVICES

REQUIRED DISCLOSURES

FRCP 26(a): a party must provide basic information without awaiting a discovery request.

(1)

Basic info on parties, documents used to support, computation of damages, insurance.Must be made at or within 14days after the 26(f) conference(A)(i): must disclose information (name, address, telephone number) of each individualthat is :

Likely to have discoverable informationMay support claims/defensesNot for impeachment (to question the credibility of the particular witness)

(2)

Disclosure of expert testimony that may be used at trial, accompanied by a report(3)

Disclose witnesses and evidence/documents that may be offered.

Must disclose all witnesses that you might want to use later. Cant hoard them and surprise the other side, must givenotice. (so if it comes up in discovery, then you can use)

DEPOSITIONSFRCP 30

(a):no more than 10 depositions without court order (must subpoena nonparties)(b)(6): Corporation has to designate someone but its unresolved if the person they designate hasto really know (check textbook)

(c)(2):Objections(d): attorney may instruct not to answer only to assert privilege or limitation placed

by court(d)(2):court may impose sanctions on party for delay or frustration

Advantages and disadvantages:

o Can follow-up with additional questions (sworn-in, on the record, transcribed)o

Can depose non-party personso

Can havesubpoena duces tecum:subpoenaed nonparty (witness) shows up with certainmaterials so they can consult and answer your questions

You cant serve interrogatories on anyone

o Higher costs than interrogatories

37(a)(3)(B)(i)- motion to compel for depositions

INTERROGATORIESFRCP 33

Not quite an affidavit, but seems to be more official nowadays.


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(a): any party may serve interrogatories, not exceeding 25 in numberCan serve additional interrogatories upon court order

(b)(1): Each interrogatory shall be answered separately and fully unless it is objected to(4) Objections: Overly broad, unduly vague, and ambiguous; burdensome and oppressive;privileged information; attorney work product; non-discoverable expert information; notcalculated to lead to the discovery of admissible evidence

(c):interrogatories may relate to any matter which can be inquired into under Rule 26(b)(1)(d):Where the answer to a question may be ascertained from the business records, it is a

sufficient answer to such interrogatory to specify said records

37(a)(3)(b)(iii)- MOTION TO COMPEL (just for interrogatories)

Different types of interrogatories:o Source (identify all employees who have been responsible for handling claims)

o Substantive (identify each witness you mean to introduce at trial)o Contention interrogatory (do you contend that Plaintiff was inside the crosswalk)

Cannot ask for other sides legal theories/questions

Advantages of interrogatories:o Relatively inexpensive and less time consumingo Good way to get leads or identify people you want to depose

Responding party has duty to make reasonable inquiries to answer Disadvantages of interrogatories:

o No spontaneous responses from other side (typically written by lawyers)o Cannot follow-up inquiryo Responding to interrogatories is like growing mushrooms: you keep them in the dark and

feed them mushrooms

REQUEST FOR PRODUCTION OF DOCUMENTSFRCP 34

(a):any party may request documents or tangible things, or entry on land(b)(1): request these items with reasonable particularity

Relation to FRCP 33(d): business records can be produced in lieu of interrogatory

answer. A party may be better off using a rule 34 request because they may have tosearch for the answer

NOTE: there is a difference between concluding that a document is not included in the request andconcluding that the requested document is objectionable on some grounds

Broad requests are usually allowed because they dont know what the other side has

o No presumptive maximum: this is where discovery gets out of control

For non-party you dont make a 34 request, you serve a sub-poena

PHYSICAL AND MENTAL EXAMINATIONSFRCP 35

(a): when the mental or physical condition is in controversy, the court may order examinationonly on motion for good causeshown. (Higher threshold-needs to show that its actually inissue)

(b):the party causing the examination shall deliver a copy to the requesting party. After deliverythe party causing the examination shall be entitled upon request of a like report of anyexamination, previously or thereafter made, of the same condition.

Only discovery device that always requires a court order.


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REQUESTS FOR ADMISSIONSFRCP 36

(a): written request for the admission of the truth of any matters within the scope of Rule 26(b)(1)Objections: must detail why answering party cannot truthfully admit/deny

(b):Any matter admitted under this rule is conclusively established. (Not evidence, but deemedto be admitted fact for purposes of pending litigation only)

FRCP 37(c)(2): sanctions for not admitting the truth in Rule 36 request.

NOTE: diff b/n admission and interrogatory: when admitted, its established and cannot be litigated. Whenanswered in an interrogatory, its bad for you, but its not established for the purposes of litigation.

If you want them to withhold the information, you have to expressly make the claim and describe the nature of thedocuments without revealing the information.

WORK PRODUCT DOCTRINEFRCP 26(b)(3)

ORDINARY: A party is not allowed to discover, (i) documents, (ii) prepared in anticipation oflitigation, (iii) by another party or a party's representative, unless,

o The party seeking discovery can show substant ial need of the materials, ANDo The party is unable without undue hardship to obtain the substantial equivalent of the

materials by other means

OPINION: Mental impressions, conclusions, opinions, or legal theories of an attorney or otherrepresentative of a party are neverdiscoverable.

A party or person may obtain a statement previously made.

Facts are not work product.

H ickman v. TaylorNo showing of necessity (before actual rules)

Plaintiff requested all statements Defendant collected about the incident from the surviving crewmembers. HELD: Plaintiff sought discovery of oral and written statements of witnesses whoseidentity is well known and whose availability to petitioner is unimpaired. There is no showing ofnecessity or any indication or claim that denial of such production would unduly prejudice the

preparation of Plaintiffs case or cause him any hardship or injustice.

Work product is not a privilege: it is a protection or defense.

In anticipation of pending litigation: doesnt have to be litigation that has already commenced,imminent. Having done it for a prior litigation does notimmunize it for future litigation.

Policy for work product:o If not, it would lead to opposing attorneys exploiting contradictions in what the person

recalls and what the person said: there will always be contradictionso

Lawyers wont write things down anymoreo Make false notes of an interview (sharp practices)

Work Product Analysis:

1. Relevant?2. Privileged?3. Work Product?

o If yes: is it the kind that has attorneys mental impressions?

YES: Absolutely Protected: No discovery NO: Conditionally Protected: Is there substantial need and undue

hardship?

YES: Discovery

NO: No discovery


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EXPERT REPORTS: FRCP 26(b)(4)

A written report and a list of information about the expert must follow.

Expert reports will often be the last significant discovery event.

Distinction between experts that testify at trial and those that are only employed for trialpreparation.

Must be identified 90 days before trial

Occasionally included in work product rule to include experts

CLAIM ING PRIVI LEGE OR PROTECTING MATERIALS: FRCP 26(b)(5)

A)

When a party withholds information otherwise discoverable by claiming that the information isprivileged or subject to protection the party must

a.

Expressly make the claim ANDb.

civ pro spillenger fall 2012

Documents