Federal Civil Procedure OutlineTable of Contents Constitutional Requirement of Notice2Issue of Service2Subject Matter Jurisdiction3Federal Question Jurisdiction3Diversity Jurisdiction3Supplemental Jurisdiction5Removal6Personal Jurisdiction6Origins7Modern Constitutional Formulation of Power7Specific Jurisdiction9General Jurisdiction11Tag Jurisdiction11Consent as a Substitute for Power12Long-Arm Statutes12Steps of Personal Jurisdiction Analysis13Venue1428 U.S.C. 139114Residency15Transfer and Forum Non Conveniens15Joinder17Joinder of Claims17Joinder of Parties19Pleadings22Complaints22Pre-answer motions23Answer24Ethical Limitations in Pleading Rule 1126Amendments28Provisional Remedies29Mechanisms for provisional remedies29Standard for TROs and preliminary injunctions29Discovery30Order of Discovery30Scope of Discovery Rule 26(b)31Tools of discovery32Duty to preserve spoliation34Summary Judgment35Purpose35Burdens of the parties35RUle 5635Mechanics of the trial37Timeline of a trial37Judicial Intervention at Trial39Erie Doctrine41The Idea Behind Erie41Substantive Law or Procedural Law42

Constitutional Requirement of NoticeIssue of Service Notice definition: A plaintiff gives notice by serving the summons and a copy of the complaint on the defendant. Constitutional requirement of due process derived from the 5th and 14th amendments. The party commencing an action must give notice to the party or parties being sued that the action is being placed against them. It must come from a process that is fair and there must be sufficient opportunity for the parties to defend themselves. Two FRCP rules central to this issue Rule 3, which says an action is commenced when it is filed. Rule 4, which outlines what makes for appropriate service. Section (d) describes the mechanism of waiving service, through which a filing party mails the summons to the defendant and requests that they waive any objections to the matter of service, thereby granting them an extension of time to answer the complaint. Rules 12(b)(4) and (5) provide a means of defense on based on process. (4) Is insufficient process. (5) is insufficient service of process. To be used if the defendant was not served properly, in a manner compliant with the federal rules. Mullane v. Central Hanover Bank Central issue is the constitutionality of New York States laws outlining the notice bank give to beneficiaries of a trust whose accounts were being settled. Rule: Notice in any proceeding must be reasonably calculated under all the circumstances to apprise interested parties of the action and give them ample opportunity to present their defenses. Subject Matter JurisdictionRelates to the subject matter that a court can entertain. The types of cases a court can here. Federal Question JurisdictionIssues arising under the US Constitution. Power is derived from Article 3, Section 2 of the Constitution. 28 U.S.C. 1331: The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws and treaties of the United States.Louisville and Nashville Railroad v. Mottley Plaintiffs sued defendants after they failed to honor lifetime train tickets following the passage of a federal law that outlawed the granting of similar tickets for the use of bribery.Well-pleaded complaint rule: A suit arises under the Constitution and laws of the United States only when the plaintiffs statement of his own cause of action shows that it is based upon those law or that Constitution.The plaintiff cannot use an anticipated defense of a federal matter in order to justify federal jurisdiction. Look at the face of the well-pleaded complaint, and if on the face you can see a federal question, then there is federal question jurisdiction.Diversity JurisdictionArticle III of the Constitution Section 1 authorizes creation of lower courts. The Judicial power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. Section II grants federal courts jurisdiction over citizens between two states. This is diversity jurisdiction.Reasons for diversity jurisdiction Minimize the likelihood of interstate bias. In the time this was established, an interstate case was more likely to be of greater importance28 U.S.C. 1332 governs diversity jurisdiction Subsection (a) grants diversity jurisdiction for civil actions between Citizens of different States Citizens of a state and citizens or subjects of a foreign state, but not those citizens or subjects of a foreign state who are lawful permanent residents of the US and are domiciled in the same state. Citizens of different states and in which citizens or subjects of a foreign state are additional parties. A foreign state as plaintiff, and citizens of a state or different states. Amount in controversy requirement Subsection (a) requires that where the parties are diverse, only those cases where the amount in controversy exceeds $75,000 have diversity jurisdiction. Subsection (d) refers to class action suits and sets the amount in controversy at $5,000,000. Defendant can challenge jurisdiction based on a failure to meet the amount in controversy Would do so by alleging that to a legal certainty, the plaintiff cannot prove the amount in controversy. Prevents wildly inflated allegations from being the basis for diversity jurisdiction. Multiple plaintiffs with related claims can aggregate their claims to reach the amount in controversy requirement. Redner v. Sanders Plaintiff was a US citizen who claimed to reside in France. Defendants were citizens of NY. Plaintiff tried to get diversity jurisdiction under 1332(a)(2) as a subject of France. That doesnt fly with the court. Plaintiff then tries to claim California residency. That doesnt fly either. In this case, the plaintiff is in between and doesnt get diversity jurisdiction. Rule: In order for parties to be diverse, they must meet one of the bases of jurisdiction explicitly stated in 1332. Complete Diversity Court sets this in Strawbridge v. Curtis No one on one side of the v can be from the same state as someone from the other side of the v.Citizenship of Corporations1332 (c)(1) A corporation shall be deemed to be a citizen of every State and foreign state by which it has incorporated and of the State or foreign state where it has its principle place of business. Hertz Corp v. Friends Corporations have dual citizenship. Rule: A principle place of business is best read as referring to the place where a corporations officers direct, control, and coordinate the corporations activities. The nerve center. The place where the corporation maintains its headquarters. Supplemental JurisdictionDefinition and justification Supplemental jurisdiction stretches federal jurisdiction to cover parts of cases that if brought independently would not have fit within the district courts subject matter jurisdiction. Supplemental comes from Article III of the Constitution, the Cases and Controversies clause. If you can prove that the claim that would not have federal jurisdiction arises out of the same case and controversy as a claim that does, then federal jurisdiction can be extended to that state claim1367(a) In any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the US Constitution.(c) outlines the grounds under which a federal court can deny supplemental jurisdiction. The claim raises a novel or complex issue of State Law. The claim substantially predominates over the claim or claims over which the district court has original jurisdiction The district court has dismissed all claims over which it has original jurisdiction In exceptional circumstances, there are other compelling reasons for declining jurisdiction. Ameriquest Mortgage Co. Complaint that arose out of the Truth in Lending Act, a federal act. Appraisal of mortgage was inflated, which was a state claim. Rule: Claims need to arise out of the same nucleus of operative facts. Operative facts the same in one claim as another. Facts need to tell one story under both federal claim and state claim.Same facts creates one case or controversy.Szendry-RamosLawyers claims against bank include wrongful termination under federal law. Wanted to add supplemental claims under state law. Several claims have nothing to do with the federal claims, so they cant be joined. The court opted to not extend jurisdiction over interrelated claims under 1367(1) and (2). Removal 1441 governs. (a) any civil action in a state court of which the district courts have original jurisdiction, may be removed by the defendant or defendants to the district court.Principles of RemovalIf, on the face of the well-pleaded complaint, a defendant identifies a valid federal claim, the defendant can remove the case to a federal court. This is a mechanism that only defendants can use. Plaintiff can voluntarily dismiss and refile in federal court.All defendants in a case must agree to petition the court to remove to federal court.1441(b) refers to diversity cases. Determining whether a civil action is removable is based on 1332(a). (2) A civil action otherwise removable solely on the basis of jurisdiction under section 1332(a) may not be removed if any parties in interest properly joined and served as defendants is a citizen of the state where such an action is brought. Caterpillar v. LewisCase was filed and the plaintiff was suing an in-state defendant and an outof-state defendant. Plaintiff settled with the instate defendant prior to trial. Defendant removed to federal court. Rule: Once a problem of incomplete diversity is cured, and if it has been cured by the time the decision is rendered, then the decision stands. Subject matter jurisdiction can be raised at any time. Personal JurisdictionOriginsDefinition: A courts power over the parties to the case. If a court does not have personal jurisdiction over a party, any order or judgment that the court may render does not bind that party. Derived from the constitutional right to due process.Categories of Personal JurisdictionIn personam: jurisdiction over the actual defendant. Jurisdiction is limited by the presence of the defendant.In Rem: Jurisdiction over a thing. The property owned by the defendant, which is directly connected to the claim. Power of the state over the thing in the state and there is a connection between the lawsuit and the thing.Quasi In Rem: Property is in the state, but there is no connection between the property and the claim.

Pennoyer v. NeffMitchell sued Neff for unpaid legal fees. Neff never shows up to court; Mitchell gets default judgment. Mitchell seeks to seize Neffs land in Oregon. The court sells it to pay off debt. Neff not an Oregon resident and was not in the state at the time of the court proceeding. Issue: Did Oregon have jurisdiction over Neff? Rule: A court may not issue a judgment against a non-resident party unless he is served while within the state or the party has property in the state that is attached to the claim prior to the beginning of the litigation. States have jurisdiction over persons or property within the state.Its irrelevant how long the person was in the state, so long as they were served while there. For a state to exercise dominion over any property owned by an out-of-stater, so long as it was attached to the case at its outset. Traditional Pillars of Personal JurisdictionPower: Power of court over things and people within its jurisdiction and the things located within itConsent: Reflection of the consent of the person who enters the state and owns property in the state to the power of the court.As the nations changed, the rules regarding personal jurisdiction did too. Modern Constitutional Formulation of PowerRedefining Constitutional PowerInternational Shoe Co. v. WashingtonInternational Shoe was a St. Louis based company operating in several states, including Washington. Washington thinks that they are required to pay certain taxes, as they had salesmen working in the state. Washington State sues believing that they company owes payments for workers compensation and other benefits. International Shoe headquartered in Missouri and incorporated in Delaware. Issue: Is International Shoe subject to the jurisdiction of the state of Washington?Rule: Parties with certain minimum contacts with the forum state are subject to personal jurisdiction within that state. Contacts must be such that the courts exercise of jurisdiction does not offend notions of fair play and traditional justice. The Minimum Contacts test.Therefore, two parts to Intl shoe: (1) minimum contacts and (2) fairness. Two types of jurisdictionSpecific: Casual presence or single or isolated act connected to the activities alleged in the cause of action. General: Systematic and continuous contact with the forum state. Claim need not be related to the presence within the state. In International Shoe, both types of jurisdiction existed. However, for a court to have jurisdiction over a party, only one need exist. McGee v. International Life Insurance Co.Plaintiff with life insurance moves from Texas to California. The plaintiff had purchased the policy in Texas, and paid premiums from California. Issue arose over collecting the life insurance policy. There were also negotiations between the two parties. In this case, there was sufficient contact to California. The defendant consented to doing business with a California. CA had an interest in protecting its citizens. Hanson v. DencklaA trust was created and managed in Delaware. The creator of the trust moved to Florida. Litigation arose over dividing up the trust. Question arose over whether or not Florida had jurisdiction.Florida does not have jurisdiction in this case. There were no minimum contacts. Just because the creator of the trust moved does not mean that the defendant purposely availed itself to the jurisdiction of the state to which the creator moved. Rule: In each case, there must be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Absorbing In Rem JurisdictionShaffer v. HeitnerFacts: Heitner sued officers and directors of Greyhound in Delaware, asserting a claim arising out of alleged mismanagement of the company. Many defendants had not acted and Delaware, and had no other connection to Delaware that would support Personal Jurisdiction. Delaware had a statute stating that all shares of stock in Delaware companies were present in Delaware. A court order was granted, seizing all the stock owned by the defendants. Gives rise to a quasi in rem case. No connection between the property and the claim, but located within the state. According to Pennoyer, there would be sufficient contact for personal jurisdiction. Rule: A minimum contact analysis is needed for any kind of personal jurisdiction question. Attachment is not sufficient when the claim is not directly connected to the forum state, and the defendants are not connected to the forum state. Per Shafer, the use of quasi in rem jurisdiction is inappropriate when the property attached is the only contact and the action has nothing to do with the property. Specific Jurisdiction World-Wide Volkswagen Corp v. WoodsonCenterpiece of the Personal jurisdiction analysis. Facts: Plaintiff bought an Audi from Seaway Volkswagen in New York. Plaintiff moved to Arizona, and got in an accident in Oklahoma on the way. Plaintiff sued Audi (multinational), Volkswagen (multinational), World-Wide Volkswagen (New York) and Seaway (New York). Plaintiff filed suit in Oklahoma, and World-wide and Seaway challenged grounds for personal jurisdiction. Issue: Was there a strong enough connection between Oklahoma and the New York defendants to establish personal jurisdiction?Foreseeability important in personal jurisdiction analysis.Not foreseeability that the product will get to the forum state, but rather foreseeability that the defendant will be sued in that forum. Rule: There are five factors for determining fairness of exercise of personal jurisdiction. Burden on the defendant Interest of the forum state in adjudicating the disputePlaintiffs interest in obtaining convenient and effective reliefInterest of the interstate judicial system in efficient resolution of controversiesShared interest of several states in furthering fundamental substantive social policies. The exercise of personal jurisdiction must be reasonable (fair) based on the contacts between the defendant and the forum state. Burger King Corp v. RudzewiczFacts: Rudzewicz obtained a Burger King franchise in Michigan. Burger King is a Florida corporation. Burger King brought suit for nonpayment under the franchise agreement. Defendant had never been to Florida, and Burger King filed suit there. Issue: Can Florida exercise personal jurisdiction over the defendants? Two-step processContacts: Determine if there are any contacts.Fairness: If there are contacts, apply the Volkswagen factors to determine reasonableness. Look to see that the exercise of jurisdiction comports with fair play and traditional justice. Rule: The exercise of personal jurisdiction must be reasonable based upon the burden on the defendant, the forum states interest in adjudicating the dispute, the plaintiffs interest in obtaining most efficient resolution of the controversies, and the shared interest of the several states in furthering fundamental, substantive social policies. Rule 4(k)(1)(A) - Territorial Limits of Effective ServiceOutlines the extent to which a federal court can get personal jurisdiction. A federal court has personal jurisdiction over a defendant who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.McIntyre Machinery, Ltd. v. NicastroFacts: Products liability suit filed in NJ. Accident occurred in NJ, machine manufactured in England. Machines distributed by a third party based out of Ohio.Issue: Do New Jersey courts have jurisdiction over McIntyre? Rule: For a foreign defendant to be subjected to the jurisdiction of a state, it must target the market of such state, thus purposefully availing itself of the state. Targeting the United States as a whole is not sufficient. General JurisdictionGeneral Jurisdiction: Where a defendants contacts are sufficiently extensive in the forum state, it is neither unfair nor inconvenient to require it to defend any lawsuit there, including ones that arise in other state. Contacts which are systematic and continuous in the forum state give rise to personal jurisdiction. Goodyear Dunlop v. BrownFacts: Bus accident in France killed several children. Families of two boys sued Goodyear in North Carolina, as well as Turkish, French and Luxembourg subsidiaries. Plaintiffs claim personal jurisdiction because the subsidiaries distributed some tires to North Carolina. However, there was no connection between the tires sold and the accident in question. Issue: Did the Goodyear subsidiaries have sufficient contacts to justify the exercise of personal jurisdiction?The court says that yes, there is a degree of contact, but the contacts are neither connected to the incident nor systematic and continuous enough establish general jurisdiction. Rule: Sporadic sales of products unrelated to the litigation are not sufficient contacts with a forum state to justify subjecting the defendant to the general jurisdiction of the states courts. Tag JurisdictionBurnham v. Superior CourtFacts: Petitioner, a resident of New Jersey, was served with divorce papers while in California on business. Does mere physical presence in a state give rise to personal jurisdiction?Rule: A state may exercise personal jurisdiction over a non-resident if the nonresident if the nonresident is served while temporarily in the state, even if the cause of action is not related to the presence within the state. Scalias View: validity of jurisdiction is based on a long tradition of doing so. Minimum contacts test unnecessary as the test is for people who are not physically present in the state. Brennans view: Minimum contacts are important. If you subject yourself to the forum state, then you are subject to its jurisdiction. Even one who temporarily visits a state is purposefully availing himself of the laws of the state. Consent as a Substitute for PowerPersonal jurisdiction is a defense, and thus a party can waive it either expressly or by taking actions inconsistent with the defense. Parties can consent to the exercise of personal jurisdiction. Doing so would eliminate the necessity of a minimum contacts test. Carnival Cruise Lines, Inc. v. ShuteFacts: Plaintiff went on a Carnival cruise and was injured while on board. Sued Carnival in Washington. On the back of the ticket, there was a forum selection clause that limited jurisdiction to Florida. Issue: Is a forum selection clause enforceable? Rule: A fair and reasonable forum-selection clause in a contract between two parties amounts to consent to jurisdiction to a given forum.Fair to the plaintiff because they did not have to consent to the clause. They could have chosen to not go on the cruise if they found the clause unacceptable. Long-Arm StatutesA states explicit grant of jurisdiction of their own courts to give guidance to the courts of when they can have jurisdiction over an out-of-state defendant. The first step in any personal jurisdiction analysis is to look at the long-arm statute and see if it applies. If it does apply, then you can go on to do a constitutional analysis.A long arm statute may not exceed the bounds of due process. Cant authorize jurisdiction, which would be impermissible under the Fourteenth Amendment. However, a state can opt to limit the personal jurisdiction. Gibbons v. BrownFacts: Defendant injured in a car accident due to faulty directions from Plaintiff. Plaintiff had sued defendants husband in a prior case. Defendant then brought a cause of action in Florida to recover for her injuries. Issue: Can the second case be brought in Florida?Using Brennans reasoning, it would seem that personal jurisdiction would be appropriately exercised in this case. However, it is not acceptable under the long-arm statute of Florida, which is more restrictive than Due Process would allow. It was an isolated incident, which is not consistent with Floridas long arm statute. Take-away: just because there appears to be personal jurisdiction over a defendant as per the Due Process clause, doesnt mean that a states long-arm statute will allow the exercise of personal jurisdiction.

Steps of Personal Jurisdiction Analysis1) Asses the applicability of the states long arm statute2) Assess the constitutionality of exercising jurisdiction. 1) Traditional basis PennoyerMaybe traditional basis aloneOr with an international shoe analysis. 2) International Shoe Analysis Sufficient contacts which dont offend traditional notions of fair play and substantial justice 1. Relevant Contact between defendant and the forum Purposeful availment by the defendant (McGee Hanson) Foreseeability that defendant can get sued in the forum. 2. Relatedness of the contacts Specific or General Jurisdiction Does the claim arise from the defendants contact with the forum? If yes, its specific jurisdiction. If no, must have general jurisdiction3. Reasonableness (Fairness) Apply factors from World Wide Volkswagen Burden on the defendant Interest of the forum state in adjudicating the dispute Plaintiffs interest in obtaining convenient and effective relief Interest of the interstate judicial system in efficient resolution of controversies Shared interest of several states in furthering fundamental substantive social policies. VenueThird piece of knowing whether a case can be in a particular district of the court. Venue flows from statutory rather than constitutional sources. Plaintiff gets to decide venue, and if it is legitimate, the court will typically respect the plaintiffs choice. 28 U.S.C. 1391 (a)(1) Sections governs the venue of all civil actions brought in district courts of the United States(b) Venue in General. Discusses where a civil action may be brought.(1) A judicial district in which any defendant resides if all defendants are residents of the state in which the district is located. If the defendants dont all live in the same state, venue cant be determined by defendants residence. (2) A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated(3) If there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the courts personal jurisdiction. To be used only when (1) and (2) dont apply. Still limited by the due process clause. (c) defines residency for venue purposes(1) Permanent, legal residents deemed to reside in the judicial district in which that person is domiciled. (3) A defendant not resident in the United States may be sued in any judicial district, and the joinder of such a defendant shall be disregarded in determining where the action may be brought with respect to other defendants.Disregard foreign defendants for venue purposes when there are also defendants who are US citizens. Figure out US citizen or corporation venue first, then lump in foreign defendant.(d) residency of corporations in states with multiple districtsIn a state which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate state. (e) is of actions where the defendant is an officer or employee of the United States.Can be brought in a district in which (A) a defendant in the action resides.(B) A substantial part of the events or omissions giving rise to the claim occurred(C) the plaintiff resides if no real property is involved in the action. When doing a venue analysis, you will apply a similar minimum contacts test as is applied for Personal Jurisdiction. However, the test will focus on the judicial district within the state, rather than the forum state as a whole. ResidencyIndividual citizens: residency refers the District where the defendant is domiciled or any district where the defendant is subject to personal jurisdiction.Corporations: residency in any district where there are sufficient contacts to establish personal jurisdiction.Aliens: Any district.In a case where an alien is among domestic defendants, a venue analysis must first be done for the domestic defendants and then apply it to the alien defendant. Dee-K Enterprises, Inc. v. Heveafil Sdn. Bhd. Facts: Two American purchasers of rubber thread allege an international conspiracy to restrain trade in and fix prices of the thread in the United States. The defendants were international corporations. Rule: 1391(c)(3) overrides any special venue statute. Transfer and Forum Non ConveniensTransfer28 U.S.C. 1404 is the mechanism for transferring venue. (a) in interest of justice a court may transfer any civil action to any other district or division where it might have been brought or to an district or division to which all parties have consented.1406(a) the district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought. If all parties consent to the transfer, the court may do it. The court may also transfer the case if doing so would be in the interest of justice. Must be raised in the first act by a defendant. If venue is thought to be improper, it must be raised at the outset. If you fail to raise a venue issue, you have essentially waived it. A choice of venue is proper if there is correct personal jurisdiction and venue in the district that the claim was brought in.If the choice of venue was a proper one, venue can be transferred to any other proper venue or any other venue that all parties consent to. Done in the interest of convenience.

Forum Non ConveniensIn General Inconvenient forum. A court can dismiss a case for forum non conveniens in cases in which the court has jurisdiction, but the case would be more appropriately heard in a different forum. Forum non conveniens rests in the sound discretion of the trial court. Piper Aircraft v. ReynoFacts: Plaintiff the executor of the estate of the victim of a plane crash over Scotland. The case was filed in California, where the executor lived. There were both foreign and domestic defendants. Rule: Courts shouldnt weigh the favorableness of alternative forums when considering whether to grant a forum non conveniens motion. However, if the alternative forum is so unfavorable that a remedy would be no remedy at all, it may be given weight. The court laid out private interest factors and public interest factors which effect the convenience of the litigants. Private interest factors Relative ease of access to sources of proofAvailability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses.Possibility of view of premises, if view would be appropriate to the actionAll other practical problems that trial of a case easy, expeditious and inexpensive. Public Interest FactorsAdministrative difficulties flowing from court congestions.Local interest in having localized controversies decided at homeInterest in having the trial of a diversity case in a forum that is at home with the law that must govern the action. The avoidance of unnecessary problems in conflict of laws, or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty. Dont use the possibility of a less-favorable verdict as a factor unless recovery is precluded in another jurisdiction.JoinderJoinder of ClaimsJoinder of Claims by PlaintiffDefinitionsAdding claims against parties already involved in the lawsuit. Counterclaim: a claim the defendant files against a plaintiff.Compulsory counterclaim: Must be joinedPermissive counterclaim: need not be joined, but may be joined. Crossclaim: two parties on the same side sue each other. Third Party Claim: A complaint against a nonparty who is or may be liable to a defendant for all or part of the claim against it. Rule 18 Joinder of Claims(a) A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party.

Joinder and JurisdictionRule 18 cannot act as a substitute for personal jurisdiction, subject matter jurisdiction and venue. Subject matter is typically the main one dealt with in joinder of claims. To add a claim, there must be some independent basis for jurisdiction. Federal Question (1331)Diversity (1332)Supplemental Jurisdiction (1367)Look to 1367 to seek basis for supplemental jurisdiction when bringing in a state claim. Additional claims must still arise out of the same nucleus of operative facts as the original claim. Same case or controversy. Claim PreclusionRes judicata: The thing has been adjudicated Collateral estoppel: barred from bringing the same claim. Claims by the Defendant: Counterclaims Counterclaims are governed by Rule 13Can be either permissive or compulsoryPermissive even if it is not raised in the initial claim, it may still be raised later. Needs independent basis for jurisdiction. Compulsory counterclaim must be raised initially or else it is waived. Arises out of the same transaction or occurrence. Compulsory CounterclaimRule 13(a)(1) A pleading must state as a counterclaim any claim thatat the time of its servicethe pleader has against an opposing party if the claim(A) arises out of the transaction or occurrence that is the subject matter of the opposing parties claim; and(B) does not require adding another party over whom the court cannot acquire jurisdiction. Must arise out of the same nucleus of operative facts. When dealing with a counterclaim, look at whether or not it arises out of the same nucleus of operative facts.If yescounterclaim is compulsoryIf compulsory, there will always be supplemental jurisdiction over the claim as it arises out of the same case or controversy as the original claim. If no counterclaim is permissive. Plant v. Blazer Financial ServicesFacts: Plaintiff borrowed money from Defendant and was supposed to make monthly payments on the money. Plaintiff made no payments for eight months and the sued the defendant under the Truth-In-Lending Act. Defendant filed a counterclaim for the unpaid balance. Court finds a logical relationship between the adoption of the debt and the way the debt is marketed to the borrow, and whether or not that borrow upholds his obligation under the debt. Take-away: Four tests for determining if a counterclaim is compulsory.1. Are the issues of fact and law raised by the claim and the counter claim largely the same?2. Would res judicata bar a subsequent suit on defendants claim absent the compulsory counter claim rule?Will substantially the same evidence support or refute the plaintiffs claim as well as the defendants counterclaim?Is there a logical relationship between the claim and the counterclaim? Cross-claim (rule 13(g))If parties on the same side sue each other, they can only do so when the claim arises out of the same nucleus of operative facts of a claim already raised in the lawsuit. (g) a pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action.

Joinder of PartiesRule 20 Permissive joinder(a)(1) persons may join in one action as a plaintiff if:(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and(B) any question of law or fact common to all plaintiffs will arise in the action. Personal jurisdiction and complete diversity can be limitations to joining parties. There must be an independent basis of Subject Matter Jurisdiction, Personal Jurisdiction, and Venue. Joinder By PlaintiffsMosley v. General MotorsFacts: Plaintiffs alleged discrimination against race and sex arising out of a policy at General Motors. 10 parties want to join as plaintiffs in the case, though the extent and the manifestation of the discrimination differed. Rule: Joinder of parties is appropriate where the claims of each of the plaintiffs are logically related events entitling a person to institute a legal action and some question of law or fact is common to all the parties arises in the action. By Defendants: Third-Party Claims (Impleading)Rule 14(a)(1) A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the courts leave if it files the third-party complaint more than 14 days after serving its original answer.A defendant must acknowledge that it is liable to the plaintiff in some way. It can then implead a third party claiming that they too are liable. Defendants cannot use rule 14 to say, its him, not me.Rule 14 hinges on WICS. WICS is the grounds for which Rule 14 can be applied.W WarrantyI Indemnity C ContributionS SubrogationThird-Party DefendantsMust: Assert any defenses against third-party plaintiffAssert compulsory counterclaims against third-party plaintiff MayAssert permissive counterclaims against third-party plaintiff.Assert cross-claims against another third-party defendant.Assert claims against the plaintiff arising out of the transaction that is the subject matter of the plaintiffs claim against the third-party plaintiffPlaintiffs may assert claims against the third-party defendant if the claim arises out of the nucleus of operative facts that is the subject matter of the claim against the third-party plaintiff. Rule 14 and rule 1367(b) An issue arises when there is a third-party defendant who is added appropriately under Rule 14, and yet that defendant could defeat diversity if adding the defendant defeats diversity.1367(b) rule about destroying diversity only applies to plaintiffs, not defendants. . A defendant can add a third party defendant even if doing so would defeat diversity.However, when a defendant adds a third-party defendant that would defeat diversity, a plaintiff MAY NOT introduce new claims against that third-party defendant. Price v. CTB, Inc.

Owen Equipment and Erection v. KrogerCompulsory Joinder of PartiesSteps for compulsory joinderDoes the party need to be joined?If yes, can the party be joined?If not, what should the court do?If a party is missing from an action when it should have been included, then that party must be joined. The court can order that the plaintiff amend their complaint to add the missing party. Party is indispensible to the claim if:It has an interest in the lawsuit and failure to join them would cause defendant harm; orComplete relief cannot be given without the presence of the absentee. Rule 19 governs(a)(1) A person who is subject to service of process and whose joinder will not deprive the court of subject matter jurisdiction must be joined as a party if:(A) in that persons absence, the court cannot accord complete relief among existing parties; or(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the persons absence may:(i) as a practical matter impair or implead the persons ability to protect the interest; or(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. Rule 19(b)In some cases, a party cannot be added:Lack of subject matter jurisdictionLack of personal jurisdictionImproper venue.In this situation, the court must decide whether to proceed with the case or dismiss it based on fairness and equality. The court considers factors laid out in 19(b) in deciding fairness and equity. the extent to which a judgment rendered in the persons absence might prejudice that person or the existing partiesthe extent to which any prejudice could be lessened or avoidedWhether a judgment rendered in the persons absence would be adequate Whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder. PleadingsComplaintsDefinition and purposeThe plaintiffs grievances and the remedies sought.Function of giving notice to opposing parties. Requirements Rule 8(a): A pleading that states a claim for relief must contain:(1) a short and plain statement of the grounds for the courts jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support. (2) a short and plain statement of the claim showing that the pleader is entitled to relief. (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. Generally, detailed assertions of fact are not required to in the complaint. However, the plaintiff must state facts supporting a plausible claim. See Ashcroft v. Iqbal and TwomblyHaddle v. Garrison

Twombly and IqbalThree General Rules1. The court ignores conclusions of law.The tenant that a court must accept as true all of the allegations contained in a complaint doesnt apply to legal conclusions.Only a complaint that states a plausible claim for relief survives a motion to dismiss. 2. The plaintiffs must plead facts supporting a plausible claim3. The court will use experience and common sense to decide if claim is plausible. Ultimate reach not very clear. Exceptions for even more detail. Rule 9(b) and 9 (g) 9(b) Allege fraud or mistake, must give detail 9(g) Special damages, must give detail. Pre-answer motionsMotion to dismissRule 12(b)Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. Defenses which can be asserted by motion(1) lack of subject matter jurisdiction Can be raised at any time(2) lack of personal jurisdiction must be raised in the first response to the complaint(3) improper venue must be raised in the first response to the compliant(4) insufficient process must be raised in the first response to the complaint(5) insufficient service of process must be raised in the first response to the complaint(6) failure to state a claim upon which relief can be granted May be raised at any time before or during trial(7) failure to join a party under Rule 19 May be raised at any time before or during trial. 12(b) defenses can be raised in an answer or by motion.A court will dismiss a complaint under Rule 12(b)(6) if: The complaint fails to state a cognizable circumstance The complaint provides insufficient facts; or The complaint contains an allegation that negates one or more of the elements of the cause of action. Rule 12(e) motion for more definite statement Rule 12(f) motion to strikeAllows a party to challenge a part of the pleading that fails under substantive law, even though the rest of the pleading states a claim or defense.Like a 12(b)(6) motion for single allegations or a cluster of allegations. Rule 7 Lays out what the pleadings are and their relationship to each other. Each affirmative claim requires a response. If a party obligated to file the response does not, then the claims can be granted on default against the party who failed to respondMotion must: Be in writing unless made during a hearing or trial; State with particularity the grounds for seeking the order; and State the relief sought. Permissible types of pleadings Complaint Answer to complaint Answer to counterclaim Answer to cross-claim Third-party complaint Answer to third-party complaint Reply to answer, if ordered by court AnswerAn answer must State in short and plain terms its defenses to each claim asserted against it; andAdmit or deny the allegations asserted against it by an opposing party. Rule 8(b)(1)Three responses to factual allegations:Deny allegation or part of an allegationLack knowledge or information necessary to admit or denyAdmit allegationDont have to admit the whole allegation. Just some. Not responding amounts to admitting to the allegations. DenialsMust fairly respond to substance of allegationCan include a general denialdenial of all allegations of the pleadingor a specific denial, by either denying specific allegations or denying all except those specifically admitted. Failing to deny an allegation serves the same purpose as admitting an allegation. Lacking Knowledge or InformationRule 8(b)(5) allows the respondent to claim they lack knowledge or information sufficient to respond.This response has the same effect as a denial.Must be done in good faith. Affirmative Defenses Parties must affirmatively state any affirmative defense it has to an allegationAffirmative defenses put the burden of proof on the defendant.Type of affirmative defense raised depends on the nature of the claim. Examples of affirmative defenses Contributory negligenceDuressEstoppelFraudIllegalityRes judicataStatute of limitations. General rules for pleadings: Rule 8(d) Concise and direct; alternative statements; inconsistencyAllegations must be simple, concise and directParties may set out two or more statements of a claim or defense alternatively or hypothetically. Pleading is sufficient if any alternative statement is sufficient. Party may state as many separate claims as it has, regardless of consistency Ethical Limitations in Pleading Rule 11Scope and PurposeMechanism for litigants and courts to police each other and ensure that everyone in the court system is following the rules. Ensures that the system is being used for intended purposes. Forbids a lawyer from making groundless allegations. Rule 11 restricts a lawyers ability to file a pleading when he has no more than a hope that favorable facts or law will emerge as the case progresses. Calls for a lawyer to zealous advocacy within the bounds of the law. Rule 11(a) Signature Pleadings, written motion and other paper must be signed by at least one attorney of record. Court must reject any unsigned paper that doesnt comply with the rule.Rule 11(b) Representation to the courtBy presenting to the court a pleading written motion, or other paperan attorney or unrepresented party certifies that to the best of the persons knowledge, information and belief, formed after an inquiry under reasonable circumstances: (1) is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation. (2) the claims, defenses, and other legal contentions are warranted by existing law or for establishing new law. (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or lack of information. You must have a good faith basis for the claims that you assert. Either a legitimate argument under existing law or a legitimate arguing extending, modifying, reversing existing law or establishing new lawRule 11(c) SanctionsIf you bring a case with a frivolous basis or with no evidentiary support, you may be held in violation of Rule 11. (1) party making a motion of a Rule 11 violation must give notice to the other party that they intend to seek sanctions. (2) Motions for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b)Safe Harbor Provision: Motion must not be filed or presented to the court if the challenged paper, claim, defense, contention or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. Safe harbor provision gives the offending party a way out. Has a chance to correct the offending action before the motion is presented to the court. (3) Court may order an attorney, law firm or party to show cause why conduct specifically described in the order has not violated Rule 11(b). (4) A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. Sanctions may include nonmonetary directives, an order to pay a penalty into the court, or if imposed on motions on motion and warranted for effective deterrence, an order directing payment to the movant of part of all of the reasonable attorneys fees and other expenses directly resulting from the violation. Nonmonetary sanctions may include, but are not limited to: Striking offending paperIssuing admonition reprimand or censureRequiring participation in seminars or other educational programsOrdering a fine payable to the courtReferring the matter to disciplinary authoritiesFactors for considering sanctionsWillful or negligentPattern of activity or isolatedInfected the entire pleading or one aspect of itSimilar conduct in other litigationIntended to injureWhether responsible party is trained in the law What is needed to deter responsible personWalker v. NorwestPlaintiff has burden to allege and prove basis for diversity jurisdiction. When a lawyer choses to not conduct an investigation of parties domicile, he can be implicated under Rule 11. Also, cannot engage in willful blindness regarding diversity jurisdiction. Christian v. MattelRule 11 sanctions are limited to papers signed in violation of the rule.Mechanism used for sanction must fit the misconduct. AmendmentsRule 15Before trial (as a matter of course) can be done once:Within 21 days of serving, orIf the pleading is one to which responsive pleading is required. In all other cases, a party may amend only with the opposing partys written consent or the courts leave. The court should freely give leave when justice so requires. PrejudiceThe provision of Rule 15 which says that leave to amend should be freely given when justice so requires lays out the presumption that the amendment should be allowed, unless it prejudices the nonmoving party. Courts can be liberal when granting leaveIf an amendment would harm the nonmoving party, however, it should not be granted.Burden rests with the nonmoving party to show that he or she will be prejudiced by the amendment. Beeck v. AquaslideIn ruling on a motion for leave to amend, the trial court must inquire into the issue of prejudice to the opposing party, in light of the particularly facts of the case.Relation back Rule 15(c)An amendment to a pleading relates back to date of original pleading when:The law that provides the applicable statute of limitations allows relation backThe amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrences set outor attempted to be set outin the original pleadingsImportant in situations when information about a new claim arises, but the statute of limitations on that claim has already run. Plaintiff can argue that the claim relates back in time to the original pleading. This will treat the new claim as if it had been filed as the original claim, and the statute of limitations does not prevent the claim from being adjudicated. If the new claim arose out of the same nucleus of operative facts as the original, it doesnt harm the defendant, as the defendant was already on notice of all claims arise out of that transaction or series of transactions. Provisional RemediesMechanisms for provisional remediesTemporary Restraining Order Rule 65(b)Granted by a court when it is necessary to prevent irreparable injury to a party, and the injury will result before a preliminary injunction hearing can be held. First step in obtaining provisional remedy. Typically filed at the outset of the case, as part of a request for a preliminary injunction. Must give the opposing side notice of the TRO request. If granted, usually limited in time until a full preliminary injunction can be heardPreliminary injunction Rule 65(a)Sought by a party prior to a trial on the merits of the complaint.Court may only issue a preliminary injunction on notice to the adverse party. Equitable remedies are to be determined by judges, not juries. StaysMechanisms used by courts to hold the proceedings. An appellate court can stay a provisional remedy. It will stop what the district court said should happen because there is an appeal pending. Standard for TROs and preliminary injunctionsA plaintiff seeking a preliminary injunction must establish that:He is likely to succeed on the merits;He is likely to suffer irreparable harm in the absence of preliminary relief;The balance of the equities tips in his favor; ANDThe injunction is in the public interest.All four factors need to be satisfied.Burden is on the moving party to establish each of these elements in order for an injunction to be granted. Winters v. NRDCThis is the standard, and there arent going to be multiple standards based on degree of irreparable harm. DiscoveryOrder of DiscoveryService of Complaint/AnswerMeet and conferAt least 21 days before scheduling order to prepare initial discovery plan.Rule 26(f)(3)Initial pretrial conferenceRule 16(b)(2)Court issues Scheduling orderRule 16(b)Preliminary disclosuresRule 26(a)(1)(A)Things to be included at the outset, without requestNames of individuals with discoverable informationCopy or description of all documents, electronically stored information and other tangible thingsComputation of each category of damages claimed by disclosing party. DiscoveryRules 26-35Expert DisclosuresRule 26(a)(2)(D)Final Pretrial orderb. Rule 16(e)Scope of Discovery Rule 26(b)In general: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any partys claim or defenseincluding the existence, description, nature, custody, condition and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. Standard for relevance Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Information sought in discovery doesnt have to be the kind that is admissible at trial.Relevant information is discoverable unless otherwise limited by court order.Limits on discoveryThe court has discretion to limit discovery ifThe discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.The party seeking discovery has had ample opportunity to obtain the information by discovery in the action The burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issue. Rule 26(b)(2)(C)PrivilegesCertain privileges bar discovery of information, even if it might be relevant. If information is privileged, the party holding the privilege may refuse to testify. The information protected need not be revealed at all. Existence of privilege does not protect factual information simply because it was communicated in a privileged conversation. When withholding information by claiming privilege, the party must:Expressly make the claim; andDescribe the nature of the documents, communications or tangible things not produced or disclosedand do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claimRule 26(b)(5)(A)Types of Privileges Marital privilegePriest-penitent privilegeTherapist-patient privilegePhysician-patient privilegeAttorney-client privilegeProtective Orders Rule 26(c)(1)A party receiving a discovery request may seek a protective order, which would allow for the court to limit discovery to protect that party from annoyance, embarrassment, oppression or undue burden or expense.The motion for a protective order must include a certification that the movant has in good faith conferred or attempted to confer with the other affected parties in an effort to resolve the dispute without court action. Potential reasons to issue a protective orderBurden and expense of producing the informationPotential for revealing intimate facts which should remain privatePotential for use of discovery to annoy or intimidateSequence of Discovery DemandDemandObjections/ResponsesAttempt to ResolveMotion to compel (Rule 37)Order to compel or protective orderTools of discoveryDepositionRule 30Examination of the witness under oath. Limited to 10 per side, without leave of court.Limited to 7 hours. Can be longer with court orderUsed at trial to impeach a witness, or if the witness is unavailable. Transcript is reviewed by the witness to ensure accuracy. InterrogatoriesRule 33Questions sent by one party to be answered by the other, seeking information relevant to the issues at dispute. Limited to 25 per party, except by leave of court.Party receiving interrogatory must respond or object in 30 days.Production of Documents and other tangible thingsRule 34Request must describe with reasonable particularity each item or category of items to be inspectedMust specify reasonable time, place and manner for the inspection and performing the related actsMust specify the form or forms in which electronically stored information is to be produced. Must respond or object within 30 days. Mental and Physical examinationsRule 35The court may order a party whose mental health or physical condition is in controversy to submit a physical or mental examination by a suitably licensed or certified examiner.To request examinations, the party must obtain a court order, which will only be granted for good cause. Request for admissionsRule 36A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to Facts, the application of law to facts, or opinions about either; andThe genuineness of any described documentsA matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. Failure to respond deems the matter admitted. Order to compelRule 37(a)Offers the party seeking discovery a tool for forcing the other party to respond to a discovery demand. Motion to compel must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosures or discovery.If motion is granted, the court may order the noncomplying party to pay the moving partys expenses and fees for the motion to compelCourt must not order payment ifThe movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court actionThe opposing partys nondisclosure, response, or objection was substantially justified; orOther circumstances make an award of expenses unjust.Sanctions for not adequately responding to motion to compel Rule 37(b)Striking claimsTaking disputed facts or claims as establishedExcluding evidenceDismissing actionOrdering payment of fees. Duty to preserve spoliation When litigation is reasonably anticipated, you have a duty to preserve any discoverable evidence.Spoliationor the destruction of evidencecan be sanctionable.The court has broad discretion in choosing appropriate sanctions, but the applicable sanctions should be molded to serve the prophylactic, punitive, and remedial rationales underlying the spoliation doctrineSilvestri v. General MotorsDismissal of the case might be an appropriate sanction if the destruction of the evidence extraordinarily prejudices the defendant, preventing them from adequately defending the case. Adverse inferenceIn some cases, when a party destroys evidence, a jury may be instructed that it can infer that the party who destroyed the potentially relevant evidence did so out of a realization that the evidence was unfavorable. Elements for adverse inferenceParty having control over the evidence had an obligation to preserve it at the time it was destroyed;The records were destroyed with a culpable state of mind; andThe destroyed evidence was relevant to the partys claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. Zubulake v. UBS WarburgSummary JudgmentPurposeWhen a court has enough information before it that it can resolve a claim or the entire case without resorting to a trial, they might grant a motion for summary judgment.There must be no facts in dispute that warrant a jury trial or trial before a judge. Burdens of the partiesThe movant has the burden of persuasion on a motion for summary judgment. Once the moving party makes a prima facie showing that summary judgment is appropriate, the burden of proof shifts to the opposing party to set forth specific evidence showing the existence of a genuine issue of material fact. When a plaintiff files an affirmative motion for summary judgment, they have the burden of showing affirmatively that they can win in their claim. Under Adickes v. S.H. Kress, the party moving for summary judgment had the burden of showing the absence of a genuine issue as to any material fact, and material lodged must be viewed in the light most favorable to the opposing party. This is no longer the standard. Today, the nonmoving party has the burden of showing that there is a genuine dispute of material fact, and the moving party need only show that the other side hasnt carried its burden. See Celotex Corp v. Catrett.RUle 56Rule 56 (a) motion for summary judgment or partial summary judgmentA party may move for summary judgment, identifying each claim or defenseor the part of each claim or defenseon which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Matters outside the pleadings can be considered in a motion for summary judgment. Motion for summary judgment may be supported or opposed by affidavits or other materials in the record. Genuine DisputeNo genuine dispute when the only facts present point in one direction. When one party comes forward with no admissible evidence to tell its side of the story, there is no genuine dispute. If there is an issue of credibility of admissible evidence, then the summary judgment motion should not be granted. Credibility is to be determined by finders of fact. Any material factA fact that is central to the outcome of the case. Rule 56(b) timingUnless a different time is set by local rule or the court orders otherwise, a party may files a motion for summary judgment at any time until 30 days after the close of discovery.Rule 56(c) Procedures2. (1) supporting factual positions. A party asserting that a fact cannot be or is genuinely disputed must support this assertion by:a. citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers or other materials; b. Showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. 3. (2) objection that a fact is not supported by admissible evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. 4. (3) materials not cited. The court need consider only the cited materials, but it may consider other materials in the record. Rule 56(d) When facts are unavailable to the nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:Defer considering the motion or deny it;Allow time to obtain affidavits or declarations or take discovery; orIssue any other appropriate order. If a party has ample time to get information, but choses not to, the court does not need to allow them an opportunity to gather it, and can rule against them. If the nonmoving party doesnt have a real opportunity to gather facts, the court should deny the motion until they have time to gather facts. Rule 56(e) failing to properly support or address a fact. If a party fails to properly support its assertion of fact or fails to properly address another partys assertion of fact as required by Rule 56(c), the court may: Give another opportunity to properly support or address that fact;Consider the fact undisputed for purposes of the motionGrant summary judgment if the motion and supporting materials show that the movant is entitled to it; orIssue any other appropriate order. Rule 56(f) [sua sponte] judgment independent of the motion. After giving notice and a reasonable time to respond, the court may:Grant summary judgment for a nonmovant;Grant the motion on grounds not raised by a party; orConsider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute. The court has some flexibility to invite summary judgment motion, but must give notice and a reasonable time to respond.Rule 56(g) Relief other than granting motion. If the court does not grant all the relief requested by the motion, it may enter an order stating any material factincluding an item of damages or other reliefthat is not genuinely in dispute and treating the fact as established.Rule 56(h) Affidavit or declaration submitted in bad faith. If satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay, the courtafter notice and a reasonable time to respondmay order the submitting party to pay the other party the reasonable expenses, including attorneys fees, it incurred as a result. An offending party may also be held in contempt or subject to other appropriate sanctions. Mechanics of the trialTimeline of a trialFinal pretrial conference and order 16(a)The scope of the trial is sorted out. Parties and judge will go through what the evidence will be. Any objections to evidence will be raised at this stageMotions of LimineParties will move to have issues or witnesses excluded. Voir Dire Jury SelectionIn federal courts, the judges ask the potential jurors the questions.In state courts, the lawyers ask the questions. Each side gets a set amoung to preemptory challenges, which allows them to strike potential members of the jury if they think there is some reason they shouldnt be on the jury.Parties have the ability ask the court to strike a potential member for cause. This is to be used if someone gives evidence of bias. This does not cost the party a preemptory challenge. Opening statementsEach side gets a limited amount of time to state what the case is about.Plaintiff presents caseUnless the only thing left to try are affirmative defenses, then the defendant will present its case.After plaintiff presents case, the defendant might move for summary judgment.Defendant presents case.Plaintiff rebuttalA plaintiff does not need to rebut, but they can. A judge might also request a rebuttal to give the plaintiff an opportunity to give their side of a story.Motion for Directed VerdictJury instructionsJury Deliberation and verdictRenew directed verdictRole of the judgeControl the conduct of everyone in the courtroom.Evidentiary rulingsSchedulingJury instructionsJury selectionMotions of limineOrder of presentation of evidenceOpening statementsJudicial Intervention at TrialRight to a jury trial7th AmendmentGuarantees the right to a jury trial. Some types of claims are tried before a judge and some before a jury (or a judge in a trier of fact role).You can waive you right to a jury trialRule 38On any issue triable be a jury, a party may demand a jury trial by: Serving the other parties with a written demandwhich may be included in the pleadingno later than 14 days after the last pleading directed to the issue is served; and Filing the demand in accordance with Rule 5(d). A request for a jury trial must be done explicitly and in a timely manner. If you fail to request a jury in a timely manner, then you waive your right a lose your ability to have a trial by jury. Judgment as a matter of law and Renewed Judgment as a matter of lawPreviously called a directed verdict and judgment not withstanding the verdict (JNOV). The purpose of a JNOV motion is to ask the trial judge to take the case away from the jury on the grounds that the evidence is insufficient to support a verdict for the plaintiff. In a case where the plaintiffs proof is patently inadequate to establish her claim, the judge has the authority to bar the jury from deciding the case by entering judgment for the defendant. Judgment as a Matter of Law/Directed Verdict Motion made before the case is decided by the jury. May be made at any time before the case is submitted to the jury. Renewed Judgment as a Matter of Law/JNOV If the judge denies the first JMOL, the party against whom the jury decided may file a renewed JMOL Done no later than 28 days after the jury decision. Standard for motion for Judgment as a Matter of LawA judge may grant a JMOL motion if a reasonable jury would not have a legally sufficient evidentiary basis for finding for the party opposing the motion. Rule 50(a)For a Renewed JMOL, the party filing the motion must have first made a motion before the case went to the jury. New TrialRule 50(c)A judge, when issuing a judgment as a matter of law, should generally state whether it would grant a new trial in the event that the decision to grant a JMOL is reversed on appeal. The appellate court can remand the case for a new trial. Rule 59 Standard for a New Trial (1) The court may on motion grant a new trial on some or all of the issues as follows:after the jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; orafter a nonjury trial for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court. Grounds for a new trialVerdict against the clear weight of the evidenceBased on false evidenceWould result in a miscarriage of justice. Judicial RecusalJudicial Canon of EthicsJudges must be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers and other with whom the judge deals in an official capcity.Due Process grants the right to be heard before an impartial adjudicatorIn some cases, judicial recusal is almost automatic, particularly when a judge has a stake in the caseRuling would impact their investmentsWould affect a family memberGrounds for recusalPersonal BiasInvolvement in the case in some wayFinancial interest in the outcome Standard for RecusalRecusal is required when the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable.Erie DoctrineThe Idea Behind ErieIn situations were a plaintiff sues in federal court on the basis of diversity and supplemental jurisdiction, the court must determine what substantive law and rules of procedure will govern the action. If the action is a federal question claim, federal substantive and procedural law will control.Erie tries to help us distinguish when to apply state law and when to apply federal lawRules of Decision ActFirst Judiciary Act created the court system and provided for federal diversity jurisdiction. Rules of Decision Act says that [t]he laws of the several states, except where the Constitution or Acts of Congress otherwise require or provide, shall be regarded as rules of decisions in civil actions in the courts of the United States, in cases where they apply. Seems clear that Congress intended for federal courts to apply relevant state law in diversity cases. There emerged a dispute about what the laws of the several states means, and even further, what laws means. Swift v. TysonIn Swift, the court held that the phrase the laws of the several states in the Rules of Decision Act (RDA) meant only statutes passed by the state legislatures, and not the common law decisions of the state court. Therefore, the only state laws that the federal courts were bound to apply were statutes.Under Swift where no statute exists, the court should apply general (federal) common lawAfter Swift, federal courts would often reach their own conclusions about the proper rule in common law cases, even if those conclusions contradicted the governing case law of the state in which they sat. Erie Railroad Co. v. TompkinsFacts: Defendant was injured by a freight car of Plaintiff Erie Railroad in PA. Defendant brought suit in federal district court in New York and asked the court to apply general law for negligence, rather than Pennsylvania common law. Pennsylvania law required a higher degree of negligence for recovery. Rule: There is no federal common law. The laws of the several states means statutes and state common law. This undoes Tyson. Federal common law was unconstitutional as it encroached on the states authority to make laws. Congress had no authority to codify the types of laws that the federal courts were creating, and therefore, it was unconstitutional for the federal courts to create federal common law. Under Erie, the federal court in a diversity case cannot apply federal law or its own perception of the proper rule under general common law.After Erie, a federal diversity court is not a law-making court; it is a law applying court and the law it applies is the law of the relevant state. Substantive Law or Procedural LawAs per Erie, in a diversity action, the district court must apply the substantive state law that would be applied in the state in which the court is located. However, the federal courts still apply federal procedural rules. If a procedural issue is addressed by a valid federal law (statute, FRCP, FRE), the federal law will be applied, even if a state rule or statute is in conflictThere is a hazy line between substantive law and procedural law. Guaranty Trust Co. v. YorkFacts: Plaintiffs sue a bond trustee in a federal diversity action alleging misrepresentation and breach of trust. Defendant invoked the New York statute of limitations. Issue about statute of limitations. Application of the states statute of limitations barred the suit, the federal laches doctrine, applied in equity cases, did not bar the suit. Outcome determinative test: Will the application of a particular rule determine the outcome? If it does, then it is substantive, not procedural. York expanded Erie from a constitutional doctrine, under which federal courts applied state law in diversity cases because there was no other constitutional possibility, to a broader doctrine based on the policy of promoting uniform outcomes in diversity cases in the two court systems. This is not how the law has evolved today.Byrd v. Blue Rural ElectricFacts: Plaintiff injured while on a construction for the defendant, he sued in Tort. Plaintiff was employed by an independent contractor. Defendant contended that the plaintiff was doing the same work as the defendants regular employees, and thus was a statutory employee whose exclusive remedy was under the South Carolina Workmens Compensation Act. The question emerges about whether or not the trial should be decided by a judge or a jury. Court finds that there are some cases in which federal policy is strong enough to make the federal rule control. Interests test: Weigh the competing interests between state and federal systems. Constitutional interest trumps. The state rule calls for trial by judge, not jury. But that infringed upon the important federal right to a jury trial. Sometimes, policy interests may be sufficiently strong to outweigh Yorks emphasis on uniform state/federal outcomes. Hanna v. PlumerFacts: Plaintiff sued defendant in federal court in MA, on the basis of diversity jurisdiction. The plaintiff served the defendant pursuant to Rule 4(e)(2)(B) of the FRCP, which allowed for the summons and complaint to be left with a competent adult at the residence of any defendant. Massachusetts law provided that suits required personal service of process on a defendant served as an executor of an estate. Both the Enabling Act and the Erie rule say roughly that federal courts are to apply state substantive law and federal procedural law. Court recognized that conflicts between state and federal practice arise in two different contexts:1. Procedural rules developed by federal judges but not mandated by federal statute or a Federal Rule. Court suggests that a more focused version of the outcome-determinative test ought to be used to decide between state law and federal judicial practices which are not prescribed by the FRCP. Twin aims of the Erie Rule: Discouragement of Forum Shopping Avoidance of inequitable administration of the laws. The court should consider whether applying the federal approach rather than the state rule would lead to forum shopping and inequitable administration of the laws The court should ask if the litigant, before filing suit, would have significantly greater litigation opportunities in federal court if the court followed its own practice rather than state law on the disputed issue.2. Valid Federal Statutes for procedure If there is a valid federal statute or Federal rule which covers the disputed issue, that rule governs. Semtek v. Lockheed MartinFacts: Petitioner filed complaint against respondent in CA state court alleging breach of contract and various business torts. Respondents removed to federal court on diversity grounds. Respondent then moved to dismiss petitioners claims as barred by Californias 2-year statute of limitations. Case was dismissed on the merits and with prejudice. Case was then refilled in MD, which had a longer statute of limitations. The Supreme Court had to decide what the effect of the CA federal courts dismissal has on the Maryland court. Court decided that there was an important state interest here. Want to give it the order the same treatment that a CA court would give it. Erie Three-Step Process (SEMTEK)1) Is there a Federal Rule directly on point?Apply this rule regardless of any outcome determinative effect2) Unless there is an important state interest at stake.Then apply the state rule.3) Even if there does not appear to be a federal rule directly on point, if there is some federal interest at stake, apply the federal rule. Federal interest, when weighty, overrides state interests.

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