Subject-matter Jurisdiction A. raised sua sponte at any level. Unwaivable.

I. Diversity JurisdictionDistrict 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 results2. Speeds economic growth by giving security to out of area investors3. Alienage jurisdiction to avoid state courts disrupting international relations and discouraging foreign investment4. 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 diversity1. 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 cases4. favor creditors over debtors (large commercial interests)5. Federal courts most often apply state law, and states understand their laws better than the government does6. State courts cannot develop law if all their important cases go to US courts7. Interfere with State autronomy

B. Article III, Section 2: Judicial power shall extend to all cases arising between 1. Citizens of different states2. Two or more states3. State or citizen of and foreign state or citizen of4. 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 citizenshipa. 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 incidentEXCEPTION: executor of an estate or for children.

2. Corporation: 28 U.S.C. 1332(c)a. State of incorporation, andb. Principal place of business

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i. Hertz, 2010: PPB where corp. has its “nerve center”—center from which company’s officer’s direct, control, coordinate corp’s 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. PPB4. Unincorporated Association (partnerships, etc.): Each state in which one of the members is a citizen—treated as group of individual litigants.

E. The Amount-in-Controversy Requirement1. 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: P’s claim accepted if: i. Made in good faith, unlessii. Clear to a legal certainty claim is for less than $75,000

b. Nothing in Article III about it; started with Judiciary Act, 1789c. 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 Claimsa. You can

i. Join separate claims against same Dii. “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 P’s against same DEXCEPTIONS: Class actions and “Common undivided interest:” two P’s can sue a trust if amount exceeds $75k, even if it doesn’t exceed twice $75k

ii. Aggregate claims against separate D’siii. Aggregate counterclaims: requirement assessed on original complaint

II. Federal-question JurisdictionA1. 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. (Fed’l 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.

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1. Osborn, 1824: Only need federal “ingredient” in action, whether in P’s complaint or D’s 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 P’s “well-pleaded complaint” (not D’s anticipated answer) (P had free RR tickets). b. Holmes test: suit arises under the law that creates the cause of actionc. Declaratory judgment: Wycoff, 1952: Since declaratory judgment reverses the posture of the parties, look to the character of the threatened action—what P would claim.

2. Exceptions: Plaintiff’s 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 P’s 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 didn’t 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 Jurisdictiona. Is the cause of action created by federal law?

i. Yes—there is jurisdictionii. 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 rule—no jurisdictionii. No

a. Comes in as part of P’s claimc. If federal law comes in as part of P’s 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

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a. If P’s claim satisfies Holmes (created by federal law), but all questions are 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 Reviewa. 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 removeB. 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 rule”—local courts likely not biased against in-state DC. 1441(c) If state and federal claims, entire case can be removedD. 1441(d) civil actions against foreign statesE. 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 groundsB. 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 yearC. 1446(d) Once notice for removal is filed, state court cannot proceed; D must notify all other parties

III. Procedure After Removal—1447A. 1447(b) District Court may order movant to file all records of state proceedingsB. 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 removalC. 1447(d) Order to remand not reviewable on appealD. 1447(e) Court may deny joinder after removal if it will destroy SMJ.

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Personal JurisdictionA. 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 doesn’t offend traditional notions of fairplay and substantial justice.”

I. HistoryA. Basis

1. 5th / 14th amendment: due processa. 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 jurisdiction1. Authority to require D to appear and defend in forum. P can

a. Recover from D’s assetsb. Use Full Faith and Credit Clause to take judgment to another state to recover

C. In rem jurisdiction1. Court has no power over D’s 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. D’Arcy 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 can’t 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 PennoyerA. More interstate activity; notion of “presence” expandedB. 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 doesn’t offend “traditional notions of fair play and substantial justice” (Milliken)2. “Continuous and systematic contacts”—general jurisdiction. PJ even when claim doesn’t arise from contacts.3. Single or isolated contact—PJ 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.

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B. Contacts and Reasonableness1. McGee, 1957: P seeks to collect on insurance policy following son’s 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 CAb. Contract has substantial connection to CAc. Reasonableness factors

i. CA has interest in dispute—CA citizenii. Convenient for P to try in CAiii. Inconvenience to D does not outweigh

C. WHY have contacts? 1. protects the D from burdensome litigation2. 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 Milliken2. In state where process is served Burnham

B. Over a corporation1. In state where incorporated2. In state where it has its principal place of business

V. General jurisdiction: Applying “presence” analysis when suits are not related to D’s 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?

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e. Helikopteros, 1984: Texas resident killed in helicopter crash in Peru. No general jurisdiction in Texas. Activities:

i. Sent executives to Texas for negotiationsii. Accepted checks from Texasiii. Sent personnel to Texas for training

f. Perkins, 1952: General jurisdiction over Philippines corporation satisfied in OHi. President had offices in OHii. Files kept in OHiii. Activities supervised from OH

VI. Specific Jurisdiction Test: Applying minimum contacts analysis when the suit arises out of D’s 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 defendant2. Interests of forum state in adjudicating the claim3. P’s interest in obtaining convenient relief4. Interstate judiciary’s shared interest in obtaining convenient resolution of controversy

a. Consider location of evidence, witnesses5. Shared interest of states in furthering substantive social policies

a. Consider comity among the statesRESULT. If contacts exist, likely jurisdiction even if some factors not satisfied

VII. Specific Jurisdiction and the Stream of CommerceA. When a customer takes product into forum state—no 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 farc. First approach: “stream-of-commerce plus”

i. O’Connor, Robertsii. Mere foreseeability for national / international distributor not enough—need some other act indicating purposeful availment and “submission to authority”

a. Designing product for forum marketb. Advertising in forum statec. 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 “fair”—foreseeability

i. Superior Court in Asahi: “Does business on international scale; not unreasonable for them to defend claims on an international scale.”

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e. WW: “If sale… arises from the efforts of manufacturer or distributor to serve, directly or indirectly, the market… not unreasonable.”

B. World-Wide Volkswagen, 1980: NY distributor; NY retailer. Car driven to OK—blows up. PJ in OK? Court says yes—writ of mandamus. SC: No.

1. Customer took car to OK—WW profited back in NY. 2. Product into stream of commerce not enough—must 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. O’Connor + 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 + 3a. Stream of commerce okay—foreseeability / benefit = fairness / not fair + reasonable otherwise

3. Stevensa. Doesn’t 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 distributor—McIntyre Machinery of America. (OH)

1. Distributor sells all over US at M’s behest.2. M officials attended Vegas trade shows.3. Up to 4 M scrap-metal machines in NJ—biggest scrap-metal state4. Some US patents5. Does not advertise, have offices, pay taxes, own property, have agents in NJ6. Kennedy + 3: PJ is about submission to authority by purposeful availment

1. Explicit consent 2. Domicile 3. Incorporation 4. PPB 5. P.A—indicates 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 + Alito1. Single, isolated sale—stream of commerce not enough; need more

a. Unwilling to say stream of commerce never sufficient—“regular and anticipated flow” might do itb. Doesn’t join dissent—concern for small manufacturers

8. Gisburg + 21. M did not exclude itself from NJ; NJ processes lots of scrap metal; engaged distributor to sell product where it could in US2. Consent is a legal fiction—should be about “fairness”3. Fair + reasonable: steps on toes of no other states (Kennedy would say: inappropriate exercise of jurisdiction always steps on toes—NV might be suitable)

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VIII. Specific Jurisdiction and ContractsA. Burger King v. Rudzewicz, 1985: BK, Florida, enters into contract with Rudzewicz, in Michigan. BK can sue in Florida on basis of Rudzewicz’s 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 benefits3. Breach of contract caused foreseeable injury to FL plaintiff4. Payments under contract go to FL5. Even though

a. Rudzewicz spent almost no time in FL and dealt with regional office6. Use normal fair and reasonable factors in Section VI

B. Keys1. Party not necessarily amenable to suit in forum because other party resides there

a. Consideri. Place and manner of negotiation (did D have a choice)?ii. Provisions of contractiii. Experience under contract

2. Choice-of-law provision does not confer jurisdiction3. Forum-selection clauses usually bind if forum has reasonable relation to state

a. Purposeful availment—you 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 contactsd. Sources came from Forum state

B. Normal reasonableness factorsC. 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 InternetA. 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 hasn’t been dispositive authority)

1. Interactive websites where users buy or sell: jurisdiction

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2. Interactive websites where users merely exchange info (Google): maybe jurisdiction3. 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 residents—CA weather on site, CA news on site

a. Zero IL subscribers to e-newspaper or print newspaper—doesn’t aim at IL3. D did not know Jackson lived in IL4. Hit was to national, not IL, reputation5. Otherwise fair and reasonable?

a. Burden on Db. IL has little interest—no IL subscribers, little chance of repeatc. Evidence in both IL and CAd. Comity? Toss-up—internet 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 there2. Cited no Texas sources3. 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, soa. Did not avail itself of VA market.

F. If D knows P lives in forum and many subscribers there—probably jurisdiction.

XI. How to Challenge Personal JurisdictionA. Special appearance—show up, contest nothing but PJB. Object in answer or file 12(b)(2) motionC. Collateral attack—challenge when D tries to collect. Risky, can only challenge on PJ grounds.

XII. Other Bases for JurisdictionA. 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 property—better claim to itb. Type 2: Not issue of property—want property to satisfy another claim

3. Attachmenta. Pre-judgment attachment: Court attaches at outset of case (to give notice of claim to potential buyers) to establish in rem jurisdictionb. Pre-judgment attachment for security: Court attaches property during proceedings if it suspects D might move property to avoid paymentc. 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.

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4. Shaffer v. Heitner, 1977: DE court sequesters D’s shares in Greyhound corp over claim arising out of contacts in Oregon. Held:

1. In rem jurisdiction is jurisdiction over a person’s 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 II—property 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 PresenceA. 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 D’s. 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, roads3. Stevens: don’t need to choose; both work

D. Corporations under Transient Presence1. Service on transiently present corporate officer does not confer jurisdiction over corporation—legal 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 ProcessA1. 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.” Mullaneb. 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

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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.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 musti. Dismiss the action; orii. 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 courts1. 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 partiesb. Be directed to the defendantc. State name and address of P’s attorney, or, if unrepresented, Pd. State time within which D must appear and defende. Notify D that failure to appear and defend will result in default judgment for relief demanded in complaintf. Be signed by the clerkg. Bear the court’s 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, andii. Over 18 years of age

4. 4(d), Waiver of servicea. D’s 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 outsideviii. Provide D with extra copy of request and postage

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c. Time to answer after waiveri. D who waives must answer complaint within

a. 60 days after waiver request (90 if outside U.S. judicial district)b. increased from normal time as a benefit/incentive

d. Failure to Waivei. 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 serviceb. Order D to pay reasonable expenses in motion to collect expenses

e. Statute of Limitations Trapi. 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 partiesa. 4(e), Serving a natural person

i. As permitted by law of the state in which the federal court is located, ORii. As permitted by law of the state in which P serves process on D, OR

a. Mail, commonlyiii. Deliver process to D personally (“in-hand service”);iv. Leaving copies at D’s 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 folks—power of attorney) or law (Hess) to receive service of process

b. 4(g) serving a child/incompetenti. p. 63 of course pack.

c. 4(h), Serving a domestic corporation or other entityi. As permitted by law of state in which the federal court is located; ORii. As permitted by law of state in which P serves process on D; ORiii. 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 Servicei. By server’s affidavit, under penalty of perjury.

E. Personal Jurisdiction and Service; Not the Same Thing1. Under Pennoyer, can’t serve process in State B for offense in State A; state’s 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.

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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)B. Venue requirements exist to ensure:

1. Court is conveniently located and2. Has some relationship to the lawsuit, or3. 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 ina. A judicial district where any D resides, if all D’s 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; orc. 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 exists2. 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 D’s 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; orc. 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 existsa. Usually crops up for claims arising outside U.S.

3. “Resides” , Meaning of a. For individuals—domicileb. For corporations—28 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 commencedb. 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 commenced”—so, if you waive personal jurisdiction, you can still object to venuee. Non-corporate entities: MacCallum: treated like corporations for venue

4. “Substantial part” testa. Most courts look to entire sequence of events leading to claim, not a single triggering event. Broad. Doesn’t even have to include all Defendants.

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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 reasonablenessb. 8th circuit test

i. D must be responsible for forum-related eventii. 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 infringementc. 2000 – employment discrimination cases

i. any judicial district in the state alleged…and more (p. 371)E. Transfer of venue

1. Which rule to use: Bad Venue Good Venue

Transfer USC 1406 USC 1404Dismis USC 1406 Forum non conveniens

2. Transfer for improper venuea. 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 justicei. 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 P’s choice of forum

i. P’s choice of foruma. Usually given deference unless other factors strong

ii. D’s choice of forumiii. Whether claim arose elsewhereiv. Convenience of partiesv. Convenience of witnessesvi. Ease of access to evidence

b. Public-interest factorsi. Transferee court’s familiarity with governing lawsii. Relative congestion of docketsiii. Local interest in deciding this case at home (comparative)

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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 intersystemi. No state to federal, federal to state, or state to state

d. Intrasystem transfer limitsi. Transferee court must have SMJ, PJ

a. D’s used to argue they would have waived PJi. 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 conveniensA. 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 doctrineB. Forum non conveniens: the test

1. Is there a suitable alternative forum?a. If not, don’t dismiss

i. Clearly unsatisfactory remedy?ii. D not amenable to process?

b. If there is, proceed2. What is P’s choice of forum? How much weight to accord?

a. More weight if home forumb. Less if chosen for favorable law

i. even where capped at $2,500 Gonzalez v. Chrysler Corp. 3. Private-interest factors

a. P’s choice of forumb. D’s choice of forumc. Whether claim arose elsewhered. Convenience of partiese. Ease of access to evidencef. Any 3rd Party Defendants that can get in there

i. have it all out at once; don’t want inconsistent verdicts and need their testimony

4. Public-interest factorsa. Transferee’s familiarity with governing lawsb. Relative congestion of docketsc. Local interest in deciding controversies at homed. 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.

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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, D’s can’t implead Scottish 3rd-party D’s, and case can be brought in Scotland, dismissal granted.D. See general outline for state variations, rise of 1404 transfer (1948)

PleadingA. A paper containing allegations (factual assertions) supporting

1. Jurisdiction2. Legal claims3. Demand for relief (if Complaint)

A1. WHY pleadings?1. give notice2. state facts3. narrow issues for litigation4. 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 law—narrow issues for litigation3. “Fact” or “code” pleading—state facts to weed out insufficient claims4. Federal Rules—give notice of nature of claim or defense

a. Questions after Twombly, IqbalC. FRCP 7(a): Pleadings Allowed

a. Complaintb. Answer to complaintc. Answer to counterclaimd. Answer to cross-claime. Third-party complaintf. Answer to third-party complaintg. Reply to answer, if ordered by courth. FRCP 7(b): Motions

i. requrest for a court order 12(b) = MTD; 12(c)= judgment on pleadings (56)=SJD. 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 person’s knowledge, information, and belief, formed after a reasonable inquiry under the circumstances: 11(b)

i. Document not prepared for improper purpose: harass, delay, increase costsii. Legal contentions warranted by existing law, or non-frivolous arg for changing itiii. Factual contentions have evidentiary support, or if specifically so stated, will likely have evidentiary support after reasonable opportunity for further investigation or discoveryiv. Denials of factual contentions are warranted on the evidence, or, if specifically so stated, are reasonable

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c. If court finds any above representations are untrue, it has discretion to impose sanctions on party or attorney.

i. Motion for sanctionsa. Party may not file motion for sanctions without first serving motion on opposing party

i. Opposing party has 21 days to withdraw or correct offending documentii. 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 Complaint1. A pleading that states a claim for relief must contain 3 things (a,b,c):

a. “Short and plain statement” of grounds for court’s 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 pleading—pleading 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 won’t 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 D’s conduct? If so, allegations do not plausible support P’s 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 dismissed…unless 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 can’t 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

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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 hasn’t given us any clue where to look, could just be a

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 soughtd. 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 you’ve 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 Mattersi. WHY “heightened” pleading in some cases (p.438)?

a. fair notice of exactly what Plaintiff is talkinga boutb. protecting reputationc. protecting the public’s moneyd. 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/Twomblya. Fraud: many elements (reliance, etc.); maybe long history of dealingb. 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 municipalities—“detailed facts.” Rulemakers, not courts, change the Rules.

3. See general outline for Twombly / Iqbal

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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?: Don’t know, judgment proof, risk that they won’t collect, no PJ (risky)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 complaint2. 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 accountingii. Determine amount of damagesiii. Establish truth of any allegationiv. 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 12—Motion to DismissA. 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 jurisdiction2. 12(b)(2) lack of personal jurisdiction3. 12(b)(3) improper venue4. (b)(4) insufficiency of process

a. contents of process / notice defective under Rule 45. 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 waysi. Failure to plead enough facts to meet Twombly-Iqbalii. Even if all facts are true, no law permitting recoveryiii. 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.

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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 19a. 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)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 trap1. A party waives a 12(b)(2)-(5) objection by not asserting it in either the pre-answer 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 waived3. 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 joinedab. Discovery can be helpfulac. Want to get rid of dumb trials

4. 12(e), motion for a more definite statement (pleading is so vague party can’t respond) must be raised in pre-answer motion.

i. If granted, other party has 14 days to obey order, or court may strike pleadingii. 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 pleadingii. Court may also act on its owniii. “For insufficiency” is P’s 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.

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E. Matos v. Nextran: Nextran moves under 12(b)(6), 12(f), 12(e). Only one 12(b)(6) 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 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 Answera1. What you can do in an answer

i. assert unwaived defenses (1,6,7, 2-5 if not waived)ii. admit or deny allegationsiii. raise affirmative defensesiv. assert counterclaims or crossclams

a. Four possible responses to allegations in complaint (admit or deny)i. Admit—P need not prove that which D admitsii. Deny—P must prove what D deniesiii. “Lacks knowledge or information sufficient to form a belief”

a. Has effect of a denialb. Must make “reasonable inquiry under the circumstances”—can’t say you don’t know something you can learn easily—Rule 11

iv. General denial—deny every single allegation in complainta. Rare to be able to do this—P almost never alleges all liesb. 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 respondi. If you fail to deny an allegation, it is admittedii. 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 denials—D must distinguish between subparts of each allegation, even phrases within sentences, and specify which parts are admitted, denied, etc. ii. can’t be vauge with language.. “to the extent that…”

d. Additional material D must include in answeri. 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 effect”—a reason P should not recover anyway

i. Must be pled in answer or amended answer; otherwise waivedii. Rule seems not to require normal 8(a) pleading standard

a. requires 8(b)(1)(A) short and plain standard

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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 don’t want Plaintiff not to prepare evidence, etc.b. more policy rationale on p. 448

ii. 13(g) Compulsory counterclaimsa. Claims D has against P that arise out of the “same transaction or occurrence” as P’s claim

e. D may includei. 13(b) Permissive counterclaims

a. Claims D has against P that don’t arise out of same &etc.b. Any unwaived 12(b) defenses.c. Crossclaims against other D’s

e. Timingi. Answer must be filed within 21 days of service with complaint

a. Don’t count day of serviceb. Period runs through weekends and legal holidaysc. Unless service waived under 4(d)—60 in US, 90 outside US

ii. Party served with counterclaim or crossclaim has 21 days to respondiii. Party ordered to reply to an answer—21 days after being served with answer.

II. Amending Pleadings

I. Rules allow for more liberal amendment to pleadings before trialA. 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 earlier3. 15a1A D who files an answer without a counterclaim may amend once within 21 days of serving it4. 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 P’s Rule 12 motion)5. 15(a)(1) For all parties, one bite at apple: amended pleading does not start a new 21-day 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 party’s consent2. Or, may amend by leave of court

a. Court should grant leave to amend “freely, when justice so requires.” Court considers:

i. Reasons for amendmenta. Discovery of new facts? New legal theory? Deliberate delay?

ii. Amending party’s diligenceiii. Prejudice from amendment in general

a. To movant if denied, nonmovant if granted

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iv. Whether amendment is futilea. If wouldn’t survive MTD, won’t be allowed; or, if won’t relate back

v. Party’s history of amendmentsvi. rarely deny: undue burden bad faith, prejudice, repeated failure to cure futility (waste of time. Can’t survive a motion to dismiss).

b. Beeck v. Aquaslide: D allowed to amend when it found new facts just before trial that it wasn’t their slide; court considers above factors.c. New legal theories often allowed as well, based on above factors.

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 Trial1. 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 don’t object and Plaintiff adds compalints in trial you’ve 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 occurrenceii. Party had notice of claim within 120 days of filing andiii. 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 didn’t get her informed consent before sterilization procedure because he withheld info that

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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

I. Generally, the Rules are liberal about joinder. A. Efficiency, efficiency, efficiencyB. Complete resolution of all disputes between parties while they’re in court

II. FRCP 18: Joinder of ClaimsA. 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 trials—FRCP 42. b. Note: claim preclusion often bars bringing a related claim later.

B. WHY? Policy rationale1.Efficiency, get all taken out at once2. 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 exceptionsB. 17(b): Capacity to sue or be sued individual, corporation, etc.

1. Individuals – law of domicilea. Historical issues with slavery and women/coverture.

2. Corporations – law of state incorporateda. 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 PartiesNote: 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”; and2. 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.

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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 isi. 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; and2. Common question of law or fact common to all D’s

i. Not required to sue all D’s together—limitations on jurisdiction, etc.ii. May sue alternative D’s in same action

3. Hohlbein v. Heritage Mutual Ins. Co: P can join four D’s on fraud claim. Common question: whether company had policy of fraud. Common transaction: “continuing pattern or practice” of treatment.

VI. FRCP 21. Misjoinder, NonjoinerA. 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 crossclaimsA. 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 party’s 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 issueii. Doesn’t require adding a party without jurisdicitoniii. at the time of its service it exists

2. 13(b) Permissive counterclaima. A pleading may state a counterclaim against an opposing party that doesn’t arise from the same transaction or occurrence as the original claim. 18(a) for D’s

i. Likely separated for trialB. 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.

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1. Can’t 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: ImpleaderA. FRCP 14 After D serves answer, may serve summons and complaint on nonparty which may be liable for all or part of P’s 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 issued.

B. Two ways of passing on liability:1. Contribution

a. Impleading a new party that contributed to P’s injury. Must be allowed by jurisdiction.

2. Indemnificationa. Often based on contract, like insurance—new party has agree to reimburse D in action of this type

3. Cannot implead a party directly liable to plaintiff onlya. “I didn’t injure you, X did” is not a basis for impleader

4. Cannot implead to collect for your own injuriesa. 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 answer2. 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 Procedures1. Must assert any Rule 12 defenses, like normal2. Must assert 13(a) compulsory counterclaims, like normal3. May assert 13(b) permissive counterclaims and 13(g) crossclaims, like normal4. May assert against original P any defense to P’s claim against impleading Defendant

i. “Defending the defendant”—that claim is basis for 3rd-party D’s liability 14a2C5. 14(a)(2)(D) May assert against P any claim arising from same transaction or occurrence that is subject matter of P’s original claim

i. Makes them opposing parties, triggering Rule 13 requirements for crossclaims6. May serve summons on fourth-party defendant who may be liable to it 14(a)(5)

F. Original Plaintiff1. 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

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b. Makes original P and third-party D opposing parties, triggering Rule 13c. 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 PartiesA. 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?a. A party is “required” when, in that person’s absence:

i. The court cannot grant complete relief among existing parties, oraa. 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 party’s 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 caseb. Not feasible if (continue to step 3)

i. No PJii. Could destroy complete diversity (SMJ)iii. Could make venue improper (often predicated on all D’s 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 party’s 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 person’s 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

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its interest in new employee ; joinder is not feasible because it would destroy diversity; suit should be dismissed because prejudice can’t 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: InterventionA. 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 Righta. On timely motion, court must allow party to intervene if party

i. Is given unconditional right to intervene by federal statute, orii. 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, andb. Interest is not adequately represented by existing parties.

b. Is the motion timely? Balance: i. Stage of lawsuitii. Purpose of interventioniii. When party knew of action / interestiv. 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 interventiona. If non-party can’t intervene by right, court may permit intervention if

i. Federal statute allows a conditional right to intervene; orii. 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 defenseii. Length of time action has been pendingiii. 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

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a. 28 U.S.C. 1335: Subject-matter Jurisdictioni. 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: Venuei. 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 minimum contacts in the United States at large. (5th Amd. DPC).

d. Why Statutory over Rule? i. easier to get SMJii. easier to get PJiii. Only time you would use rule interpleader is if all claimants from same state

C. Rule Interpleader; FRCP 22a. By Plaintiff. Persons with claims that may expose P to multiple liability may be joined as D’s and required to interplead.

i. Joinder is proper even if claims lack common originb. By Defendant: D may seek interpleader through crossclaim or counterclaim.c. Normal contacts analysis for PJd. Diversity compares citizenship of stakeholder to that of all defendants

i. Complete diversity required (claimants vs. ‘plaintiff’/stakeholder)e. Normal 1332 amount-in-controversy requirementf. Normal 1391 venue requirements

D. “Pie-slicing interpleader”a. P may interplead defendants if their claims might expose it to multiple claims.

E: Complainta. State jurisdiction, venue, etc., why properb. Claim: Exposure to multiple liabilityc. Prayer for Relief: pay stake into court and bow outd. 2361 and Rule authorize injunctions barring D’s from later action

V. Supplemental JurisdictionA1. 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 don’t 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

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a. facts are related in time, space, origin, or motivation, whether they form a convenient trial unitii. 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?

iii. Is state law unsettled/complex? Should a state court decide it?iv. Possibility of jury confusion—subtle 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. 13671. 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 doesn’t have supplemental jurisdiction overi. 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 P’s to adjudicate claims in one action. A. Promotes efficiency, protects P’s in negative-value suitsB. Problem

1. Binding judgment in personam on a nonparty. Pennoyer and Due Process

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a. 23(a), fact that they aren’t Defendants, and Phillips Petroleum (PJ) cover it2. NOTE: MAKE SURE STILL CHECK FOR SMJ, PJ, VENUE

C. FRCP 23: Initiating1. P files complaint, noting in caption, description suit is styled as class action2. Complaint identifies class in some fashion3. 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 if1. Numerosity: class is so numerous Rule 20 joinder is impracticable

a. Usually 20-40b. Geography can play a role in practicality/efficiency too.

2. Commonality: questions of law or fact common to entire classa. Just one will do; if class from many states, certify statewide subclasses

i. because otherwise differing applicable tort laws will undercut commonality3. 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 itd. AGAIN being from different states can undercut this, b/c seeking different relief

4. Adequacy: Reps will fairly and adequately represent interests of the classa. Adequate counsel

i. 23©(1)(B): requires the court in certification order to appoint class counsel under 23(g).

b. Adequate representation—must seek all relief available to all membersi. representatives owe the class both a duty of loyalty and a duty of vigorous representationii. In Re Teflon failed this because they dropped personal injury damage from claim.

E. 23(a) Implicit requirements1. 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: Burke’s 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

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as any party in first suit; interest was surely not adequately represented; court adopted no procedures to protect nonparties—didn’t 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 anda. Prosecuting separate actions would create the risk of

i. Inconsistent adjudications that would establish incompatible standards for party opposing class, orii. 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 disclosuresb. 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 on grounds applying generally to class, so injunctive or declaratory relief is appropriate for class as a whole.

a. Common in discrimination suits—company has refused to promote any blacksb. If monetary damages sought as well…

i. Some courts say injunctive relief must “predominate”ii. Others, that $ damages must be “incidental”—necessary 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 q’s central to all members’ claims?v. Same theory of liability? Same defenses?

a. In Re Teflon fails b/c didn’t 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 gov’t agency, complain

d. Notice Requirements

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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 they’re looking for $. Not a 23(b)(3) class, either—common q’s don’t predominate (claims can’t 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 judgmentc. 23(f) COA may allow interlocutory appeal

6. 23(c) Notice requirementsa. (b)(1), (b)(2)

i. Court may direct appropriate noticeb. (b)(3)

i. Court must direct best notice practicable under circumstances7. 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, compromisea. 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 P’s 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 noticeiv. Any class member may object

a. Objection may only be withdrawn with court’s approvalb. Can FRCP 24 Intervene

9. 23(g) Court must appoint class counsel—consider experiences, resources, knowledge10. 23(h) Court may award reasonable attorney’s 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, options1. 23© opt out2. 23©(5) make a new sub class3. 23©(4) sue for declaration on faultiness.

H. Class Actions and Subject Matter Jurisdiction / Supplemental Jurisdiction (P.708)1. Ben-Hur, 1921: Only rep’s citizenship need be different than D’s.

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a. led to lots of forum shopping. Pick any rep and state you wantb. 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 rep’s if claim for more than $75k.

a. Keeps most class actions in state courti. Friendlier to P’s, possibility for sweetheart deals—forum shopping

3. CAFA—mostly 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 D’s agree to remove;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 doesn’t 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 injuries—forum stateiii. Discretionary jurisdiction: see general outline

a. 1/3-2/3 class from forum state, all D’s forum stated. Likely impact

i. Multistate actions in federal courtii. Fewer multistate class actions

a. State-only actionsi. Risk of inconsistent judgments, not efficientii. D’s don’t care: P’s have less bargaining power because claims smaller

b. D’s are happyi. More bargaining power in statewide class actionii. No multistate action in state court that defines nationwide liabilityiii. Federal courts friendlier

a. Judges not electedb. Interlocutory appeal on certification

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DISCOVERY

I: TimelineA. Pleadings closeB. 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, etc2. Discovery plan due to court within 14 days

a. May include objections to required disclosures in discovery plan 3. 29—Parties 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 defenses2. Documents and tangible things party may use to support its claims or defenses3. Computation of damages4. Any insurance agreement under which insurer may be liable to satisfy judgment

D. 16(b) Scheduling / discovery order—within 120 days of service or 90 of appearance1. What types of discovery will be permitted2. How long discovery will last, etc.

E. Core discovery—see belowF. Subsequent required, unilateral discoveries include:

1. 26(a)(2) 90 days before trial, identify and reports of experts who will testify2. 26(a)(3) 30 days before trial, identities of fact witnesses who will testify3. 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 reasonable1. Judge and at least one attorney for each party

a. Plan for submission of evidenceb. For length of trial, etc.

H. 16(e) Final pre-trial order1. Sets forth facts to which parties have stipulated, factual and legal contentions, evidence, witnesses to be presented at trial2. May be modified only to prevent “manifest injustice”

J. Trial

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II. Core Discovery. FRCP 26(b)(1): Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense, and that is reasonably calculated to lead to the discovery of admissible evidence.

A. Primary tools1. Rule 33 Interrogatories—served only on a party2. Rule 30, 32 Oral depositions—subpoena to compel depo of nonparty3. Rule 32, 32 Written depositions—subpoena to compel from nonparty4. Rule 34 Requests for production—subpoena to compel from nonparty5. Rule 35 Physical or mental examination—party or person in party’s legal custody or control6. Rule 36 Requests for admission—served 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)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 outline7. 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 Objections1. Object and wait for 37(a) motion to compel

a. Objection excuses deponent from answer in only 3 circumstances—otherwise, objection is recorded, by deponent continues to testify 30(c)(2)

i. When testimony would violate a privilegeii. When testimony would contravene discovery order or protective orderiii. 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

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i. Hold non-complying party in contemptii. Dismiss lawsuit or part thereofiii. Enter default judgment in favor of party seeking discoveryiv. Preclude noncompliant party from introducing evidence on the matterv. Deem matter conclusively established for requesting partyvi. 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 circumstances—serious 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 objectingii. 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, 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 depositionsE. 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 employeesb. 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) Hickman1. 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”

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a. Specific-claim approach: Documents must have been prepared with specific claim and facts in mindb. Ad hoc approach: Protected if done prior to emergence of claim, to help client avoid litigation or strengthen available defensesc. Primary purpose approach: Primary motivation of preparing product was to prepare for litigation

a. Ordinary business purpose—nob. To comply with regulation—no

4. If court orders discovery, must protect against disclosure of “opinion work product” as opposed to “factual work product”

a. Mental impressionsb. Conclusionsc. Opinionsd. 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 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 claimb. Other party must return, sequester, or destroyc. 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 recordsa. 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 Land1. May serve on any party; nonparty by subpoena.

a. May take without leave unless parties have not stipulated, and would result ini. More than 10 being taken, orii. Same person being deposed more than once, oriii. 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.

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5. Must produce documents, e-info:a. As kept in usual course of business; orb. 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, Interrogatories1. Useful: spontaneous answers to informed questions2. The examination of a live witness under oath outside the presence of the judge3. To parties by request, nonparties by subpoena. 4. Notice to parties must state:

a. Time and placeb. Deponent’s name, addressc. Materials requestedd. Method of recording

5. If you want to depose a corporation or other entity: 30(b)(6)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. Lawyersb. 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. Take’s deponent’s testimony;ii. Prepares and certifies the deposition;iii. Sends it to party, attaching questions and notice

2. Other parties may submit questionsa. Cross-questions due 14 days after service with notice and direct questionsb. Redirect questions within 7 days of service with cross-questionsc. Recross-questions within 7 days of service with redirect questions

E. Rule 32, Using depositions in court1. 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, orii. As an admission by a party-deponent, oriii. For any purpose if witness is dead, not subject to subpoena for trial, ill, infirm, etc., or

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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 partyb. Objection to officer’s 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 timea. Basically, by reformulating question

d. Objection to error or irregularity at oral deposition is waived ifi. It relates to a matter that could have been cured at the time, andii. 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, Subpoena1. Served on nonparties2. Command appearance3. Must contain certain information4. Usually used when court where issue is pending has no personal jurisdiction over deponent5. 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 person’s 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 recording6. From which court?

a. For hearing or trial, court where hearing or trial heldb. For attendance at deposition, district where deposition takenc. 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.

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10. 45(c) Protecting subpoenaed personsa. 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 doesn’t 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; oriv. The subpoena subjects the person to undue burden.

c. The court may quash or modify a subpoena if it requiresi. Disclosing a trade secret or other confidential info;ii. Disclosing an unretained expert’s 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 can’t otherwise get info without undue hardship, andii. Ensures subpoenaed person is reasonably compensated.

11. 45(d) Responding to a subpoenaa. 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 causec. Privilege / protection procedures same as above (make claim, note, etc.)

12. 45(e) Contempta. 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 court’s district and more than 100 miles from the person’s home or business.

G. Rule 35, Mental and physical examinations1. Available against parties and persons in parties’ custody or legal control2. Examination is limited to conditions in controversy3. Requesting party must move for examination and show good cause

H. Rule 36, Requests for Admission1. 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

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b. Genuineness of any described document2. 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

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 DismissalA. Defendant may move to dismiss if the plaintiff

1. 46(b) Fails to prosecute, or2. 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 jurisdictionb. 12(b)(3) improper venuec. 12(b)(7) failure to join a required party under Rule 19

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i. Because these are unrelated to the merits of the caseB. 41(d) If a plaintiff who previously dismissed brings the action against the same defendant, the court may order P to pay D’s 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 caseB. 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 D’s 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

I. GenerallyA. 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 don’t 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, or2. Make credibility judgments

D. Partial summary judgment1. 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 damagesE. 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 consideredb. 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 movant’s and non-movant’s materials that would be admissible at trial

F. Process1. Identify applicable law2. 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?

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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 facta. A dispute is “genuine” if a reasonable jury could return a verdict for nonmovantb. Light most favorable to nonmovant; all inferences for nonmovantc. 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 judgmentA. Party must cite to materials that would be admissible at trial—motion is “trial preview”

1. Use: depositions, documents, stipulations, admissions, etc.2. Narrow exception for affidavits and declarations:

a. Must be made on personal knowledge;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 can’t be presented in a form admissible at trial1. No unsworn material except admissions (so no pleadings, generally)

IV. Shift in burdenA. 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 productiona. If moving party fails to meet burden, motion is deniedb. If moving party meets burden, burden of production shifts to nonmovant

i. If nonmovant fails to meet burden of production, motion is grantedii. If nonmovant meets burden of production, motion is denied

V. Relationship between burden of persuasion and burden of productionA. If the movant has the burden of proof at trial (usually P):

1. “Proof of the Elements” Motion: very difficulta. Must present undisputed facts supporting each element of claim or defenseb. Usually results in partial summary judgment, especially for P’s:

i. Undisputed facts rarely establish damagesa. 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 elementi. Slaven v. City: City showed didn’t know of suicide risk.

2. “Absence of Proof” Motiona. 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)

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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 don’t have evidence.C. Slaven v. City of Salem: City is entitled to summary judgment because it proffered three affidavits showing officers did not know P’s decedent was a suicide risk, and such knowledge was an essential element of P’s 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 P’s claim. This shifts burden of production to P, who only produces unsworn letter from expert that doesn’t 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 MotionsA. 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 movant’s and nonmovant’s materials that would be admissible at trial;E. 50(a) after P’s case based on all evidence presented in P’s case;F. 50(a) after D’s 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 to1. Specify the judgment sought, and2. Specify law and facts entitling the movant to judgment

C. If made at close of P’s 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 D’s 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 judgmenta. No 50(b) without 50(a) first

i. Idea is that 50(a) “conditionally” submits case to jury and reassess after

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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 wins2. 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 – doesn’t directly contradict it..).

2. Pennsylvania RR Co. v. Chamberlain: P’s testimony based solely on “eyewitness” who only inferred a collision and could not have seen one; collision a necessary element of P’s claim. D presented direct evidence in form of eyewitnesses that collision did not occur. Since P’s testimony gave rise to equally strong inference that collision did not occur, it did not actually impeach D’s direct testimony. Evidence so 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, 1791—jury 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 jury’s findings of fact as true for the relevant equitable claims.

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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 can’t 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 doesn’t 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 legal—seeks damages. Finding will be applied in equitable action for declaratory judgment.

IV. Modern Encroachments on Jury RightA. Directed verdicts, 6-person juries, partial new trial, administrative agencies, statutory causes of action that didn’t exist in 1791 see NLRB v. Jones & Laughlin

1. Court typically holds that Seventh Amendment preserves “fundamental elements” of jury trial and not 1791 procedures—just “substance of right.”

V. FRCP 39, Trial by jury or by courtA. 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; or2. 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, order jury trial on any issue for which jury trial hasn’t been demanded.

1. When you forget to file timely notice—depends on stage of litigation, etc.C. In an action that doesn’t 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 TrialsA. 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; or3. 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 ProcedureA. 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.

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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 heard2. Court may grant timely motion for new trial for reason no stated in motion3. Court must specify reasons in order

D. Motion to alter or amend judgment must be within 28 days of entry of judgmentII. 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 (doesn’t mess up jury right—new trial)ii. Can consider jurors couldn’t understand material, etc.

aa. But juries are considered much better at deciphering credibility in a he-said; she-said trial.

b. “Process errors” in conduct of trial or jury caused prejudice and affected the verdict (FRCP 61—most errors are harmless)c. Losing party finds new evidence after trial (FRCP 60—rare)

B. Standards1. “Against weight of evidence;” “clearly erroneous;” “seriously erroneous”2. For awards: does amount of award “shock the judicial conscience?”

C. When Appropriate1. Should be avoided if verdict depended heavily on credibility judgments—juries are good at that—but more appropriate if trial was complex.

III. Altering the JudgmentA. Pursuant to Rule 59(e), party may move to alter judgment—often, award

1. Remittur—judge reduces award to that which “does not shock judicial conscience”a. May take maximum from comparable precedent, minimum, or averageb. P may accept or risk new trialc. 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, didn’t exist in 1791

IV. Partial New Trial 59(a)(1) – claim or elementA. 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 endsB. App Cts give district court a lot of leeway: present and better able to appraise than from the cold record.

V. Combined MotionsA. Party moves in alternative for JMOL and new trial.

1. If court grants JMOL but doesn’t decide on new trial, appeals court might reverse the JMOL decision. Then, it would have to remand for the motion for a new trial.

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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 P’s 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 Order1. 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 trialc. Fraud on the court (paying jurors, forging documents, etc.)

i. all above have a 1 year limitd. Judgment is void (usually, no service or jurisdiction in default judgment)e. You have paid award, or injunction is satisfiedf. Any other justifiable reason (almost never; must be extraordinary)

i. no hardline time limit; just within a reasonable time3. 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 judgment—must show meritorious defense, excusable neglect. Not easy.

VIII. FRCP 61, Harmless ErrorA. 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 don’t 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 party’s substantial rights1. Irrelevant, prejudicial evidence2. Improper grant of dispositive motion3. Serious instructional errors (some instructional errors are fine)4. Serious jury misconduct (going to a psychic)

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Remedies and Post-Judgment Procedures

RemediesI. 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 accountingB. 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 party’s rights.

D. 62(d), Stay with bond on appeal. An appellant can obtain a stay by supersedeas bond—enough $ to show the court you’re good for the amount of the judgment. E. When considering whether to grant stay, court considers, basically, preliminary injunction factors—likelihood of success on appeal, likelihood of irreparable harm, balance of equities, effect on public interest. ($ judgment irreparable? Other party might not return—especially in class actions.)

II. FRCP 64: Seizing a Person or PropertyA. 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. Arrest2. Attachment (seize property—any property—to ensure presence of assets to satisfy judgment)3. Garnishment (as with wages or bank accounts—property 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.

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a. Security bond inadequate substitute, and P’s 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 hearing—low 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 can’t breach the peace in the process.

III. Rule 69: ExecutionA. A money judgment is enforced by a writ of execution.B. The procedure is governed by state law.

1. MDNC formsa. Writ commands U.S. marshal to seize property to be soldb. Some properties are exempt: residence, burial plot, “tools of trade”

i. Want to avoid complete indigence—won’t take your house or your hammerC. 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 whata. Can use info to garnish wages, bank accounts, etc.

IV. FRCP 70: Enforcing Judgment for a Specific ActA. If the judgment requires a party to act, and it doesn’t…

1. Court may order act done at party’s expense by a person the court appointsB. 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 court2. The clerk must issue the writ of attachment or sequestration

D. Obtaining writ of execution or assistance1. The party who obtained the judgment or order for possession applies2. 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 OrdersA. 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 ifa. Movant shows, by affidavit or verified complaint, that she might suffer immediate and irreparable injury or loss before the other party can be heard

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b. Movant’s attorney certifies efforts to give notice, why it shouldn’t be required2. The TRO expires after 14 days, but court can extend another 14 for good cause3. A TRO issued without notice must contain:

a. Date and hour issuedb. Describe injury and why it’s irreparablec. Describe why it was issued without noticed. Must be promptly filed at clerk’s 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 doesn’t proceed with motionb. 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, and3. Describe in reasonable detail—not by reference to complaint—acts 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.

1. Parties2. Parties’ agents, employees, attorneys, officers, servants3. People acting in concert or participation with parties4. Not limited by constructive notice, only actual5. 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 can’t fix?3. Does the balance of equities tip in the party’s favor?

a. Harm to P vs. harm to D4. 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 above2. Who pays for interpreter depends on final adjudication on the merits

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3. The two have different standards:a. Hearing for preliminary injunction is hasty, informalb. Party not required to prove case in fullc. Findings of fact, conclusions of law not binding at triald. If expedited trial appropriate, 65(a)(2) allows—but 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, HRI’s 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 boundc. If HRI were a shell company, and Hazeltine and HRI alter egos…

i. Probably boundd. If Hazeltine had stipulated or was acting in concert with HRI…

i. Probably bound.

VIII. 28 U.S.C. 2201, Declaratory Judgment ActA. 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 controversy”—must be real injury, etc. Can only get declaratory judgment as “mirror image of actual suit.”

IX. Rule 57: Declaratory JudgmentA. Existence of another adequate remedy doesn’t preclude declaratory judgment actionB. Court may order a speedy hearingC. 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 TakenA. 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)

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2. Clerk sends copies to all other parties3. 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 appealed3. Must name court to which appeal is taken.

II. FRAP Rule 4: Appeal as of Right: When TakenA. 4(a) Must be filed with District Clerk within 30 days of entry of judgment

1. Jurisdictional limit—court considers sua sponte2. 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 JNOVb. To amend under 52(b)c. Attorney’s fees under Rule 54d. To alter or amend under Rule 59; new trial under Rule 59e. Relief under Rule 60, if motion filed not later than 28 days after entry of judgment

i. All above motions toll the appeals clock

III. 28 U.S.C. 1291A. 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. 1292A. 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 Circuit—patents and such.D. Supreme Court may make rules allowing interlocutory appeals.

V. Appeals: The ProcessA. 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 days2. 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

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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 arguments5. First party likely files reply brief6. Panel of judges assigned to case; usually three

a. Straightforward cases—based strictly on briefs, record appendixb. More complex—court hears oral arguments

i. Paper record, no witnesses—not a retrialii. Court only considers issues raised by appellantiii. Different standards of review based on types of rulings

VI. ReviewabilityA. For error in trial court to be reviewable on appeal, it must be prejudicial, preserved below, and presented above.

1. Prejudiciala. 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 Belowa. 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 judge’s 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.”

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 appelleei. A party can make any argument supported by the record to affirm the judgment—the CoA reviews the trial court’s judgment, not its opinion.

3. Presented Abovea. 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 briefa. Provides guidance for CoA and notice to other party

i. Often, even reply brief is too late4. 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

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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: CoA’s have appellate jurisdiction over all “final” decisions of DC’s1. WHY? : “Piecemeal” appeals throughout litigation would disrupt efficiency, burden CoA2. 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 courtii. Entry of judgment for one party or anotheriii. Ends litigation on the merits

b. If one claim by plaintiff is dismissed, but others remain: not finalc. If all plaintiff’s claims dismissed, but counterclaim remains: not final

i. Attorney’s fees don’t keep judgment from being final3. Why the finality rule? Why so few interlocutory exceptions?

a. Congestion—60,000 appeals in 2009, most from final judgmentsb. Duplication—Many interlocutory issues can be considered after final judgmentc. Delay—Many appeals would bring litigation in DC to a haltd. Expense—briefs, time, resources for lawyers, CoAe. Often unnecessary

i. If parties settle, no appealii. If party wins, won’t appeal

f. Proper relationship between courts—DC 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 exception—just 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 isn’t final, D won’t know it’s out of the case until appeal following final judgment.

a. 54(b) allows D to move for entry of final judgmentb. 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 twice—just cause for delay.

c. If court grants 54(b) motion, 30-day appeals clock begins to run.

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d. Court will never grant 54(b) on part of a claim—no final judgment as to liability alone. The court doesn’t decide a “claim” until it decides the proper remedy.

2. 28 U.S.C. 1292(a): Orders concerning injunctive relief that are not finala. Allows interlocutory appeal for orders concerning injunctive relief.

i. All injunctions, not just preliminary injunctionsii. 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 orderii. 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)

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 judgmentiv. There is an important issue of controlling law (not just trial court’s discretion)

b. Collateral order: A Rule 24 motion to intervene is denied. Another: Court finds Philippines lacks sovereign immunity. Unreviewable in first case because you’d 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 Mandamusa. Request CoA to command DC to fix something when DC clearly screwing upb. Trial judge is respondentc. 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 P’s, 200 D’s in hotel fire. CMO orders cost-sharing plan among all D’s 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.

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a. CMO like a discovery order—deals 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. Doesn’t fall under collateral order exceptiona. Unrelated to merits? CMO intertwined with main case. (separability)b. Completely resolved below? (finality) Further orders forthcoming; don’t know total costsc. Effectively unreviewable on appeal from final judgment (urgency): RFC can appeal from final judgment and recoup funds; other interested parties involved, tood. Important question of controlling law (importance): clearly within court’s discretion to impose reasonable cost-sharing orderse. Would also disserve trial court – CoA relationshipf. No subject-matter jurisdiction over appeal

VI. Standards of Appellate Review: How it’s reviewed once it’s thereA. CoA judges good at law; trial courts good at finding facts and issuing orders

i. Continuum on page 1176.ii. Based on each court’s specialties and weaknesses (p.1176)

B. De Novo standard1. “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 D’s act constitute intentional discrimination?3. CoA has advantage on law questions, and promotes uniformity in the law

C. Clearly Erroneous standard1. 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 judge—advantage in making credibility judgments

a. Anderson: standard applies even when findings based on written record that CoA sees: CoA can’t reverse just because it would have found differently; an appeal is not a retrial; duplication of effort; trial judge’s role; Rule 52 makes no exception; parties shouldn’t have to convince two courts of case

D. Abuse of Discretion Standard1. Used for decisions made in managing case—discovery, 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 it’s wide.

a. Case management—lotsb. Entry of default judgment—less (severe)

E. Reviewing JMOL motions for directed verdict, judgment notwithstanding the verdict1. CoA applies the “reasonable jury standard” to the verdict, just like trial court2. But then it reviews what the judge did: a question of law: reviewed de novo

III. Claim Preclusion— Res judicata

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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 fairness—D should be able to repose after first suitB. Preserves public confidence in judiciary—avoids inconsistent judgmentsC. 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, usuallyB. The previous case must have resulted in a valid, on final judgment on the merits.

i. Valid—had jurisdiction, notice (sometimes valid without jurisdiction)ii. Final—judgment entered (appeals, pending motions don’t affect)iii. On merits—SOL 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 relationshipIII. 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 same1. 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

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 rare—separate 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 won’t 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 test—if both tests are used, same evidence test renders transactional test a “nullity”—any 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. “Valid”—that is, not “void” under 60(b)(4)

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1. Void judgments usually result from lack of PJ, SMJ, or insufficient notice. Pennoyer—judgment void because court did not acquire jurisdiction over property by prejudgment attachment.

a. Exceptions to rulei. 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 judgment—not fully and fairly litigated.

B. “Final”—was 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 doesn’t 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 don’t show up)—all on merits2. Rule 41(a) voluntary dismissal, lack of jurisdiction, improper venue, Rule 19—not on merits (problem is with the court, not the claim)3. SOL—trend is to consider it “on the merits”

V. 3. Parties in second case must be same as parties in first case.A. Typically, judgment doesn’t preclude nonparty from relitigating identical claim.

1. Nonparty gets his day in court—“One is not bound by a judgment in personam in litigation to which he has not been made a party.” Hansberry, Pennoyer2. 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:

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 bailor—based on needs of property law.3. Nonparty was adequately represented by party with the same interests in the earlier suit—class 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 proxy—old 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. SturgellC. 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 Taylor’s 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.

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4. Not precluding claim won’t spawn litigation; who wants to bring a suit they know they’ll lose? (stare decisis—why waste money?)5. Remanded to determine whether Taylor is acting as Herrick’s proxy.

i. Agency law—is Herrick the mastermind? Does he have the right to control Taylor and direct his legal moves?

D. Counterclaims1. 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 effect—“Rule preclusion.” If party doesn’t assert all counterclaims arising out of same transaction or occurrence, they can’t 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 Preclusion1. Consent. Claim preclusion is waivable; D can give his permission.2. Court in first case reserved your right to relitigate—says won’t treat claim as precluded.3. P couldn’t bring an aspect of the claim in the first suit—jurisdiction or joinder problem.4. P is explicitly permitted to relitigate by statute.5. P experiences continuing or recurrent harm.

a. Chemical burn—claim for pain, suffering. 50% chance of cancer. Can’t sue on the chance; can sue later if cancer develops.

6. Some other extraordinary reason—doesn’t come up much.

Issue Preclusion—Collateral Estoppel

I. Prevents a party from relitigating an issue that was fully and fairly litigated in a previous lawsuit.

A. “Issue”—smaller than a claim. Some element of a claim—ownership 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 doesn’t exclude documents. P can’t move under 56(d)—more facts won’t 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.

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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 isn’t necessary. Some forum that involves submission of evidence and discovery will suffice. (comes up with administrative proceedings, workman’s comp)

i. Was there an opportunity to appeal? Was action in small claims court?ii. witnesses, evidentiary hearing.

B. Issue preclusion doesn’t 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 lawi. If D pleads contributory negligence, and general verdict for P:

a. Decided that D was negligent, and P was notii. 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. Doesn’t matter if court probably got it wrong—appeal 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)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, can’t use it. Only part of a claim; judge can still revise it; can’t be certified as final.

VI. The issue determination must have been essential to the judgment. CambriaA. 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 can’t appeal. Without requirement of legal necessity, the finding on negligence could be used against him in an action against P. Don’t 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 Cambria’s negligence is dicta and not essential to judgment; Jeffery can’t recover if he was negligent, regardless of what Cambria did. Jeffery can’t use issue preclusion to bar relitigation on issue of Cambria’s 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.

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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, andi. The claims are really unrelated, orii. 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 don’t trustD. Party against whom preclusion is asserted had a heavier burden of persuasion in the first actionE. 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, because of adversary’s 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” wrongii. Might apply if there was a low amount in controversy in the first action

IX. Cases on Issue PreclusionA. 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 preclusion1. 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

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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 witnesses—a mini-trialc. Valid, final judgment on merits: yesd. Essential to judgment: direct finding on causal relatione. Parties same or in privity: dramatically poor decision—Diaz and JWR not involved in first action; NJM is not controlling them in this one (they stand to lose); no substantive legal relationshipf. Courts chooses not to exercise issue preclusion at its discretion because RWJ and Diaz didn’t have adequate opportunity to litigate in first suit—clear and convincing need for new determination.

C. Was issue determination essential to the judgment?1. Cambria v. Jeffery: Cambria’s servant drove his car upon Jeffery’s; Jeffery sues in negligence. Court finds both parties were negligent. Cambria sues Jeffery; jury returns verdict for Cambria; JNOV for Jeffery on ground that Cambria’s negligence was established in earlier action and issue preclusion bars relitigation.

a. Finding on Cambria’s negligence not essential to judgment in first action. Jeffery did not recover because he was contributorily negligent—not because Cambria was negligent, too. Issue preclusion does not bar relitigation on issue of Cambria’s 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 preclusion based on a prior finding against the plaintiff. (they’ve 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 shouldn’t 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 patent’s 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 P’s to “fight like hell”…

d. Rather than an “adversarial” vision…i. Court simply adjudicates a dispute to see who’s 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

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paid to Cook; issue preclusion, since P’s litigated and lost on propriety of conveyance of $ in first suit.

III. Non-mutual offensive issue preclusion: A plaintiff tries to establish a defendant’s 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 suit1. 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 wouldn’t hurt them.

B. Incentive to litigate vigorously in first suit1. For defensive, plaintiff can foresee later suits—she would bring them—and knows that if she doesn’t fight and loses, she loses those claims, too2. For offensive, the defendant can’t foresee later suits—they’d be brought by other, absent plaintiffs—and so takes a risk by not fighting like hell

C. Prior inconsistent judgments against party against which preclusion is sought1. For defensive, no inconsistent judgments—finding against party precludes later suits2. For offensive

a. What if first 25 P’s lose, and 26th wins? Can 27th use judgment?b. What if the first plaintiff is the 26th—a statistical anomaly in a strong case for D?c. Increases leverage for early P’s in settlement, since finding against D establishes liabilityd. Promotes strategic use of attractive plaintiffs by attorneys

D. Party lacked access to procedural opportunities in first action?1. For defensive—plaintiff chooses the forum2. For offensive—defendant is haled into court wherever plaintiff likes

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 P’s 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. Nope—full and fair opportunity, with incentive

v. Motion granted; issue of proxy statement is precludedvi. On right-to-jury-trial question, court says: since this is two cases, not just one, it’s okay to use the bench judgment in the second case, where there is a right to jury trial.

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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” 2a. “Thereafter arising” controversial—really a species of waiver—you 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 arbitrate1. 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 arbitrators—most 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 agreement1. If an controversy arises and the other side won’t 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;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 contract—no “meeting of the minds.” No fraud, duress, or mental mistake—under 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,

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she didn’t waive rights; just agreed to assert them in a different forum. Agreement must be “fair enough” to preserve your substantive rights. (Can’t 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 arbitrators1. 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 award1. Award is only vacated for really serious stuff—basically, stuff so bad the arbitrators weren’t even being arbitrators.

a. Purpose of arbitration is efficiency—quick and dirty way to settle disputes. Informal.b. Getting the law wrong not clear ground to overturn—not like an appeal.

2. Award can be overturned ifa. It was procured by corruption, fraud, or undue meansb. Evidence of impartiality or corruption in arbitratorsc. Arbitrators guilty of misconduct that prejudiced a partyd. 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 award1. On application of party, court can modify or correct award if:

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

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Erie Doctrine

I. Old View: Law the Story WayA. 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 WayA. 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 ActA. The laws of the several states, except where the Constitution or treaties of the United 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, S14—typical reception statuteA. 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 results—should 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

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learned that the “land” he bought didn’t 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 holder—if it’s 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 don’t depend on local statutes.c. Why? State and local courts do the same thing—look to general law and try to ascertain what it is.

i. Here, if Swift can’t recover, our whole system of credit is undermined.ii. And many places would allow it—England, 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 they’ll 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 interest—monopolistic.a. Not in any statute or state constitution—common-law rule.

2. In most other states, such contracts are okay. a. State and federal courts “go to the same source to interpret the common law,” and both try to ascertain the rule. KY’s 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 era—freedom of contract—okay.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 court’s decisions were law, federal courts would follow it. But in creating a supreme court, the constitution impliedly gives that power anyway—so state common law has the force of statutory law.

VII. Problems under Swift1. Forum-shopping for out-of-state plaintiffs

a. If federal law considers the D’s act illegal, P can sue in diversity in federal court.b. If state law considers D’s act illegal, P can sue in state court; D is barred from removing under 1441(b).

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2. The idea was that state laws would tend to converge as the federal interpretation of the common law was applied; didn’t 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. Didn’t 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 can’t 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 isn’t unconstitutional. Not at all clear that, absent the judiciary act, federal courts couldn’t 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 can’t prescribe procedural rules for federal courts.

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 Guess1. Federal court not bound by DC or CoA decisions2. 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, scholarshipb. 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 don’t have to guess, because the case will get to the state supreme court eventually.

B. Certifying the Question

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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 settleII. 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 consistent—place 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 state—on same street—would dispense justice unequally. 3. Produces lack of uniformity among federal courts—such 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 Shopping1. Under Klaxon, a plaintiff can’t 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. P’s can file there, and out-of-state D’s can remove. If there were a uniform federal rule on choice of law—say, lex loci delicti, the law of the place of the tort—the same law would apply in almost all diversity cases. Initial forum-shopping would be limited to state-federal for P’s, but D could remove if P chose state. 3. Under Klaxon, more forum-shopping—state-by-state in federal court, especially when D is subject to general jurisdiction in many. Example:

a. Suing Wal-Mart over Fla slip-and-fall. FL law says, use place of incident. NY law says, use place of most significant interest—NY, where P lives. AK law says, use place of most significant interest—AK, where D lives. Three choices.

E. Problems with Klaxon1. Has impeded development of sound body of interstate law2. Federal courts in different states apply different law—federal forum-shopping

IV. The Federal Common LawA. 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 hasn’t legislated in those areas, federal courts need to made federal common law to fill the gaps.

1. Not inconsistent with Erie—federal law governs; just hasn’t been made yet.C. United States v. Standard Oil, 1947: U.S. soldier hit by truck. Government sues for indemnification—pay while he was hospitalized, hospital bills.

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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 gov’t and soldier—derived from federal sources, governed by federal authority.b. Federal fiscal concerns, as well. Gov’t money used to pay bills came from treasury.c. Clearfield: liabilities arising out of forged endorsement of gov’t 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 shouldn’t states govern?

a. State has no incentive to allow gov’t to recoveri. But, McCulloch—can’t tax gov’t aloneii. If nobody can recover, state must have reason for itiii. We don’t usually care about state laws that apply to gov’t—speed limit

b. Don’t want variation from state to statei. 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 hasn’t acted—don’t want to intrude or create “surprise” in well-settled field

2. The Rule of Standard Oila. 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 Hinderlidera. CA can made law; Court just thinks it shouldn’t 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 doesn’t have to be uniform, court may borrow state law.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 lawC. Action and Reaction

1. Common for Congress to abrogate federal common law by statutea. Fifteen years after Standard Oil, Federal Medical Care Recovery Act creates statutory right to indemnity for injuries to soldiers.

III. Erie EerieA. Which issues are governed by the command of Eerie?

1. “Substantive” issuesa. Issues that congress has no Constitutional authority to create law on

B. What’s the problem? 1. Congress does have Constl rights for procedural laws (necessary and proper clause)

C. So What’s Procedural?

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1. Guaranty Trust – Use State law if it affects chance of winning. Outcome-determinative test.

a. anything can do this. Const’l 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 prospectivelyii. Part 2 – for Rule, test of const’l, statutory authority.

4. Flow chart – see notebook paperD. 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 doesn’t get the extra time added to SOL but the diverse citizen does, that’s 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 isn’t substantive, is it intertwined with substance so as to define the scope of the right? If you are in the grey area you should go with the state. (ex: SOL, Burden of Proof rules, Appellate standards of review).

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