Civil Procedure:

A.J.C. 2009
Types of Jurisdiction (1) In Personam Jurisdiction a. General Jurisdiction: Occurs if companys activities in a state are of such a continuous and systematic nature that the corporations relations to the forum state are no different than those of a resident. Jurisdiction over any claim in state, even one completely unrelated to in-state activities. Specific Jurisdiction: Covers only the specific act which satisfied the minimum contacts standard.

b.

(2) In Rem Jurisdiction: Juris asserted over a persons real or personal property in-state. Affects interests of all parties in a piece of property; suit is limited to the property itself. (3) Quasi In Rem Jurisdiction: Affects interest of one party in a property a. Type 1: Resolves a dispute about the property itself. b. Type 2: Establishes rights to property where the underlying dispute is not about property. 28 USC 1655 authorized territorial jurisdiction for in-rem and some quasi in-rem cases. Applies to lien/titles existing prior to the suit & present in the district. IF the absent D doesnt appear, the judgment only affects the property that is the subject of the action. Rule 4n2 If PJ cant be obtained after reasonable efforts to contact D, ct may assert juris over Ds assets found in the district. Satisfying jurisdiction Is it statutory? a. State long-arm statute: Rule 4(k)(1)(A) b. Bulge jurisdiction: Rule 4(k)(1)(B)for 3rd parties (r14) & indispensibles (r19) Is it constitutional? a. Minimum contacts (Intl Shoe) b. Reasonableness test (World-Wide Volkswagen)

1. 2.

PERSONAL JURISDICTION
Scope of Personal Jurisdiction State law provides the ultimate source of personal jurisdiction (Rule 4(k)(1)(A)) Federal statute may also provide federal court with personal jurisdiction as per Rule 4(k)(1)(C) R4k2: If no state can exercise personal jurisdiction, allows personal jurisdiction when case arises out of federal law Limit: Due Process 14th Amendment

I. General Jurisdiction:
Systematic contacts (Hall) Presence (Tag Service) Burnham - even after min contacts, presence still enough under 14th Amendment (Husband visits kids for 3 days, served by wife) Grace v McArthur served on plane flying over AK Darrah v Watson sued in VA while on business for a few days Exception: Force or Fraud 2R82 State wont exercise judicial juris. obtained by fraud/unlawful force over D/Ds property Wynam v Newhouse D had meritorious relations w/P. P wrote mother dying, entreated D to come, served in FL. Immunity from service of process (when presence if purpose of participating in another lawsuit as party, counsel, witness) Domicile Where a Person lives, lived, chooses to say indefinitely. Even if not currently in the state. Milliken v Meyer (served in another state) Corporation place of incorporation + primary business activities Consent appearance, contract, seeking license to do business within the state

You can waive T. Jurisdiction, and appear to contest if you wish. (most probably wont) Implied consent no longer valid Hess - Driving car in MA appointed state official as agent = implied consent

II. Specific Jurisdiction

Territorial Jurisdiction When D is out of state (1) State-Long-Arm + (2) Constitutional under 14th Amend. Due Process (Minimum Contacts + Reasonableness)
(1) Long arm statutes (Rule 4k1A): calls nonresident D back to state to defend ( Authorize jurisdiction of based
on specific types of contact)

Tortuous acts
Committed Within State: Nelson v Miller PJ if tortuous acts occurred within state + P states cause of action Committed Outside of State: If they foreseeable affect within the State Calder v. Jones - SC, 1984 intentional & allegedly tortuous actions were expressly aimed at CA Facts: Shirley Jones sues National Enquirer in CA for libel about her drinking habits. Reporter lived in FL but traveled to CA often on business. Editor oversaw just about every function of the magazine. Rule: When s acts outside the forum have foreseeable consequences in the forum, jurisdiction is valid. Gray v American Radiator Conduct from an injury inseparable from injury itself Facts: Manufacturer of valve (OH) installed in PA shipped to ILL Injured P Constitutional: maybe not, bc no proof of any business conducted within the state attempt to stretch long-arm statute to constitutional limits

(1) Constitutional under Due Process Minimum contacts (# of contacts + level of relatedness)
o o Casual + isolated not enough. Need specific acts/continuous & limited acts to convey specific jurisdiction, and pervasive acts to convey general jurisdiction A corporation enjoying benefits/protection of laws of that state. The exercise of that privilege may give rise to obligations

>> Number of Contacts + Relatedness

Intl Shoe Co. v. Washington - SC, Casual+Isolated not enough High contacts / High relatedness 1945 | 163 Facts: is a Delaware corp. w/ principal place of business in Missouri. employed 11-13 salesmen in Washington, commissions of $31K. Salesmen had one sample shoe per pair & would rent out store space. doesnt want to pay into the states unemployment fund. Holding: P availed self, could expect/foresee suit, good reason to sue in state (activity arose in state), state interest to control disputes in state Rule: Consider quality & nature of contacts w/ state. Sometimes a single contact will do, but not contacts that are casual or isolated. Policy: Relationship between , forum, and the litigation becomes the central issue. Perkins v Benguet Consolidated Continuous business activities High contacts / High Relatedness (general juris) Mining Co Facts: Gen juris granted OH for Phillipines mining co during Jap invasion. President moved to Ohio =, maintained co matters, kept office files, correspondence, 2 bank accounts, directors mtgs, drew salary checks McGee v. Intl Life Ins. Co. -SC, 1957 | s 1 contact, high relatedness (specific juris) Facts: Beneficiary of life insurance policy secured from Texas company in California. Defendant had no contact with California except for solicitation of policy through the mail. Contract was delivered to Ps son. Holding: It is sufficient for purposes of due process that the suit was based on a contract w/ substantial connection w/ CA. Weighing State/P interests: State- protect citizens subject to Ks and insurance policies, P- inconvenience of travel to TX for suit

High contacts, High relatedness even if didnt step foot, could reasonably foresee reached out beyond VERY REASONABLE Facts: R buys a BK then stops making franchise payments. Deals w/ HQ in FL & district office in MI. Rs partner goes to BK college in FL. Its clear that any real negotiations will happen w/ FL office. 21-year ongoing business relationship. Issue: Will FLs broad long-arm statute, allowing jurisdiction over any person, whether or not a citizen or resident of this state who breaches a contract in this state, as long as action arises from the breach, hold up? Holding: R deliberately reached out beyond MI, establishing minimum contacts w/FL. Even though he didnt step foot into FL, his business associate did. Further, this is not a case in which inconvenience of achieves constitutional magnitude. Thus, reasonableness test is passed. Weighing: Burden on D substantial but expected, high interest of state to regulate in-state business, interest of P convenience & predictability Policy: There are no talismanic jurisdictional formulas. Indeed, dissent feels that R never purposefully availed himself of the benefits & protections of FLs laws. Burger King Corp. v. Rudzewicz - SC, 1985 | 196 No Minimum Contacts High contacts, Unrelated (no specific juris) Helicoperos Nacionales v. Hall - SC, 1984 | 188 Significant contacts, but not significant enough for general juris. Facts: Columbia helicopter company hired on a Texas pipeline venture in Peru. They go to TX to get the deal, buy choppers in TX &Court train their pilots TX. Money for the venture TX. Copter crashes in Peru. Kulko v. Superior - SC, 1979in |s Tacit consent is notcomes direct from availment/benefit (unilateral not enough) Holding : s contacts TX not sufficiently continuous & systematic. Plus, contacts didnt out of or relate to the Facts : Couple divorces in w/ NY, wife moves to CA. Gradually the kids join her there. Wife sues inarise CA court for more child cause of action. support. Weighing State/P Interests : (against Due Process) noavailment? regulatory interest esp toward negligence claim, P didnt have Issue: Does his tacit consent to the move constitute direct good :reason to sue Holding P was not purposefully directing self to or availing self of CA this was unilateral act by wife/kids. No benefit. Note: If diverse proceedings were in CA, there would be PJ

>> Directly Availed vs Tacit Concent Directly Availed: McGee one letter delivered to son Burger King repeatedly reached out, could reasonably foresee International Shoe purposely availed states protection/benefits Perkins president reached out continuously No Direct Availment (Unilateral Acts) WW Volkswagon had nothing to do with OK
Mullane v. Central Hanover Bank - SC, 1950 Beneficiaries didnt directly avail self | 281 Facts: Judicial settlement of a pool of small trust estates; beneficiaries notified by publication, per NY banking law. Reasonableness: Ds receive benefit, but likely dont even know that trust is in their name. No purposeful availment. State interest: ease of administrating over funds in-state

>> Stream of Commerce + Unreasonable (burden on foreign Ds too high) Gray - Manufacturer of valve (OH) installed in PA shipped to ILL Injured P Jurisdiction allowed Unreasonable & Foreseeability
STREAM OF COMMERCE CONTROVERSY. Unsure if Min contacts met but Reasonableness not met. Facts: Asahi (Japan) (component manufacturer) makes valves. Cheng Shin (Taiwan) puts valves on tires. Gary Zurcher crashes Honda motorcycle, sues Cheng Shin, which indemnifies Asahi. Z & CS settle. CSs case against A remains. STREAM OF COMMERCE CONTROVERSY: Judges arent in agreement and you can argue either way Some judges say: Mere Awareness is enough (minority) OConnor Test: Awareness + Directly Targeting State (ie: marketing) <<< If you meet this test, you pass for sure 5-Factor Reasonable Test: Severe burden on foreign D, Little state reg. interest b/c st. law doesnt apply to indemnity case w/foreign manufs.. Rule: Though the court agrees that jurisdiction doesnt fly, a plurality claims that The stream of commerce refers not to unpredictable currents or eddies, but to the regular and anticipated flow of products from manufacture to distribution to retail sale. Policy: Great care and reserve should be exercised when extending our notions of personal jurisdiction into the international field. Asahi Metal v. Superior Court - SC, 1987 | 212

World-Wide Volkswagen v. Woodson - SC, Unilateral action not enough. Foreseeability too far removed. No 1980 | 172 purposeful availment. (No stream of commerce) Facts: The Robinsons buy a car from Seaway VW in NY. On the way to AZ, they crash in OK & want to bring suit in OK against Seaway (retailer) & distributor World-Wide VW (NY). (Reason for wanting these parties in the suit: to avoid complete diversity & prevent from removing to federal court.) Issue: Purposeful availment (benefit in collateral way)? Could he reasonably anticipate being hauled into ct there? Holding: No purposeful availment. Contact = result of unilateral action by P driving to OK. Not foreseeable. Stream of commerce ends w/ Seaway/WW Policy: Every seller of chattels would in effect appoint the chattel his agent for service of process. >> Property in State must still establish minimum contacts Old case For Quasi-in-rem jurisdiction, property must be attached. Pennoyer v. Neff - SC, 1877 | 147 Constructive notice not enough except for personal status (ie: divorce) (OVERRULED) You cant be served outside the state Facts: Mitchell sues N in Oregon state ct for $253.14. Service is by publication for 6 successive wks in the Pacific Christian Advocate. N did not appear. Default judgment against N for $294.98. Ns Oregon property attached & sold at sheriffs sale to M for $341.60. M sells to P for undisclosed amt. Holding: Power Theory States dont have authority over people through in-state property unless the property is 1 st attached (brings under ct. control) Rule: Fourteenth amendment: Due process. Property isnt sufficient to establish PJ when its not related to claim (Quasi-in-rem Type Shaffer v. Heitner - SC, II) 1977 | 250 Quasi-in-rem, In-rem, and In-personam distinctions no longer matter! Facts: H. sues Greyhound officers & directors for violating their duties. H files quasi in rem type 2 suit against s shares in DE (unrelated to claim). The weird thing: these guys are all officers & directors of a DE company, so in personam jurisdiction might should apply, but DE law bases jurisdiction not on s fiduciary role, but rather on the presence of their property. (They changed this after the suit) Rule: all proceedings are against people Holding: Claims must be sufficiently related to property. Presence of the property alone does not constitute minimum contacts & reasonableness.

Kulko v. Superior Ct, said it also applies to individual as well as corporations

Concurrent jurisdiction State ct can hear any case that can be heard in fed ct (unless Congress makes exception). Not true vice versa. Does State have PJ? (over parties) Domicile Milliken v Meyer
state

Presence doesnt apply to corporations (when reps travel through), in state service (Burnham) Consent (privilege of the D, which can be waived ) appearance, contract, seeking license to do business within the

Territorial Long-Arm-Statute (in-state tort, etc) + 14 th Due Process (Min Contacts + Reasonableness) Corporation incorporation, doing business (corporate presence), consent Necessity Mullane (all beneficiaries)

Does Federal have PJ? Rule 4k1a: Only if state also has PJ Exceptions: Federal Statute can authorize, NECESSITY: no juris of any other state, or joined parties from Rule 14 of 19 w/in 100 miles of ct Does State have SMJ? (over actions) General matter jurisdiction - over most claims ie: tort, battery, K breach Does Federal have SMJ?F Only if granted by Article III and Congress 1331 ( cant be waived) (OR) Only if diverse 1332 (+Amt in controversy $75K) Is venue proper? 1391 (a) Diversity (1) Any district any Ds resides if all from same state, (2) Substantial events/property, (3) (Fallback) PJ of any D (b) Not Diversity (1), (2), (3)(Fallback) where any D can be found (c) Corp Resides where PJ (and in that district only) Minimum Contacts: General Jurisdiction Natural Persons domicile Corporations incorporation, doing business Specific Jurisdiction Claim arises out of / relates to contracts Foreseeability Who initiated the contacts? Purposefully directed Stream of Commerce

Reasonableness Interest of the forum state to provide redress to citizens Burden on D

Ps interest in proceeding in this forum Interest of state in efficient conflict resolution (substance) Shared interest with other states in furthering substantive social policies (procedure)

1) State interests: provide redress (YES) protect enforcement of Ks and insurance policies for its citizens (McGee) (YES) regulate in-state business (Burger King) (YES) ease of administration of funds in-state ( Mullane) (NO) no regulatory interest of TX over crash in Peru, esp in a negligence claim ( Helicopteros) (NO) little state interest to regulate b/c state law doesnt deal with indemnity cases with foreign manufacturer ( Asahi) 2) Ps interest in proceeding in this forum (YES) inconvenient for insurance co. to travel to TX from CA ( McGee) (YES) convenience & practical for suit to be litigated in FL headquarters ( Burger King) (YES) trustees received benefits, but likely dont even know that the trust is in their name ( Mullane) 3) Burden on D (NO) High but expected b/c could forsee that negotiations would happen in FL office franchise from MI ( Burger King) (YES) Severe burden on foreign D (Asahi) 4) Further social policies focus on substance ie: a tort law concerning reckless driving.. 5) Shared interest w/other states in efficitn conflict resolution focus on procedure Would other states have a legitimate beef with the state doing this? Where are the witnesses located?

Challenging Personal Jurisdiction

Full Faith and Credit Clause in Article IV, 1 (US Constitution) fed has to accept judgment in state court 28USC 1738 state must give same effect to a valid judgment that is has in the state that rendered the judgment. ***So state courts dont have to give full faith & credit to Fed cts!! the preclusion effect of that comes from common law (therefore, parties can appeal and get review from higher cts)

Special Appearance

Some states will allow you to make a special appearance to challenge the personal jurisdiction without subjecting yourself to personal jurisdiction you must be careful not to raise anything on the merits or you subject yourself to cts juris If an out of state defendant does not appear and suffers default, they are able to collaterally attack the judgments validity based on jurisdiction when action on judgment made. (challenge in the enforcement action) Risky once defendant suffers default, they only have ability to attack jurisdiction, and lose ability to challenge on the merits. Note: You cant challenge PJ in enforcement action if youve already challenged in original action Ability to challenge jurisdiction, (if loses) litigate merits, and preserve right to appeal both jurisdiction and merits Must raise 12(b)(2) at start otherwise waived right to challenge

Collateral Attack

In Federal Courts:

 1331 Federal Questions/Cases (SMJ)

Article 3 permits jurisdiction over any case where federal law is an ingredient. It establishes the judicial system and the power given to the SC and inferior courts. USC 1331 is a statutory limit placed by Congress that limits the power of courts to hear federal cases. Under 1331, district courts have original jurisdiction over civil actions arising from the Constitution, laws, treaties of the US. Constitutional Power - Article III Federal Statutory Power - 28USC1331 Federally chartered (e.g., Bank of US) or incorporated (e.g., Red Cross) groups can have fed Q jurisdiction even re: state claims Holmes test a suit arises under the law that creates the right of action Fed law creates (1) right sued for (enough on its own) + (2) right to sue (not enough on its own)

Well-Pleaded Complaint Rule

The well-pleaded complaint rule applies to original, not appellate, jurisdiction. It is quite broad: under Osburn v Bank of the US, it only requires that one party rely on federal law to establish the claim, defense, or side federal issue proving the main case. Holmes attempts to clarify the requirements of this concept by stating that a suit arises under the law that creates the right of action. Grable & Sons v Darne further stipulates that state claims that turn on a substantial question of federal law have SMJ. Louiseville & Nashville RR v Motley sets forth the rule of the modern well-pleaded complaint rule. Louisville & Nashville RR. v. Motley - SC, 1908 | 349 The well-pleaded complaint rule Facts: Ms released claims in exchange for lifetime RR passes; reneges claiming that the free passes are a violation of recently enacted federal law. Breach of K claim clearly state claim. Rule: (1) Its not enough that a federal issue is raised in complaint, it must be necessary to the complaint. (2) Claim must have federal issue its not enough that Ds defense contains federal issue creates race to the courthouse Policy: Otherwise, people can just insert fed issues into complaint when not necessary. Docket control. Can be overinclusive in application b/c can bring a suit on federal claim, but may not end up litigating on that in the end. Bell v Hood You dont need a valid claim for SMJ Facts: Bell seeks to recover damages from FBI agents Hood for imprisonment/wrongful search and seizure in violation of Constitutional Rights under 4th & 5th Amend. Issue: Is jurisdiction defeated by possibility that averment might fail to state a cause of action? Holding: No. Failure to state claim = judgment on merits, not dismissal for want of jurisdiction. SMJ must be granted before judgment on merits can occur. Can only dismiss when wholly insubstantial/frivolous. As long as theres possibility of good claim, youll survive 12b1. You dont need valid claim for SMJ.

1332 Diversity Jurisdiction

Diversity jurisdiction confers federal jurisdiction over parties that meet the requirements in 1332. The first requirement is that the amount in controversy be greater than $75,000. This is a flexible requirement. Ps only need to show that this figure can be met to a reasonable possibility. Per St. Paul Mercury this can only be defeated if the D can show to a legal certainty that the P cannot recover this amount. For additional confirmation, courts can hold a mini-hearing to determine this. Policy: Diversity jurisdiction is allowed b/c it avoids the prejudice of out-of-state parties being tried in state courts. Cons: s to this are that it consumes resources, fed judges have no special expertise with state law, it can create friction between state/federal courts, reduces the pressure to improve state jud. systems

Aggregation
Under the old rules (pre-1990), multiple plantiffs could not aggregate their claims unless it was a common/undivided interests (ie: co-owners). This was difficult to meet. Snyder v Harris disallowed aggregation of claims in class actions where no single person met the minimum amount. Zahn v International Paper (a class action suit) also dismissed litigants whos separate/distinct claims didnt satisfy the minimum. Under the modern rule, per Allapattah and Star-Kist, parties can aggregate their claims as long as one party meets the minimum. 1332b: Amount in controversy test > $75,000 to a reasonable possibility St. Paul Mercury defeated only if shown to legal certainty that cant recover = good faith a. 1 P can aggregate all claims brought in a single complaint (to single or multiple Ds). b. Modern Rule : if one party meets minimum, parties can aggregate their claims Aggregation was not allowed b/c parties under minimum amount. However, both cases were successfully joined because of supplemental jurisdiction. Exxon Mobile v Allapattah class action aggregation allowed b/c Rule 23 not exempt from 1367b only one party met juris amt contamination theory Star-Kist 9-year-old sliced hand on tuna can family tried to join on emotional distress/med Rule 20

 1332a: Diversity - Litigation between (a)(1) - Citizens of different states - - (must be UC citizen or legal resident alien) (a)(2) - Citizens of a State & citizens/subjects of a foreign state. (a)(3) - Citizens of different States and in which citizens/subjects of a foreign state are additional parties; (a)(4) - Foreign state as a plaintiff. (not defendants) Citizenship is contemplated at commencement of litigation As long as all Ds and all Ps are diverse, its ok if Ds or Ps are from same state ( Strawbridge) Citizens of a state = Domicile sec People: Presence + Intent to stay indefinitely Associations: any state where there are members, Trust: only the state of the trustee, Unemancipated minor has same domicile as parent (R of conflict of laws 22), Corporations:1332 (c) (1) : citizen both principle place of business/place of incorporation o Principle place of business = place of operations, bulk of corporate activity test, nerve center, total activity test o Action against insured: citizen of state where citizen, and incorporated, and principal place of business Baker v Keck Motive doesnt matter, domicile established by actions/surrounding circumstances 1936 Facts: P (OK/IL) filed conspiracy suit against Progressive Mine Workers (OK). P has farm in IL but claims had moved to OK for domicile Rule: Look to acts/circumstances and not to persons declaration to determine domicile Holding: Worked on community project, registered to vote, participated in local activities enough to prove intention to reside in OK even though there was evidence that he intended to return to IL. Look at acts not speculation! Kelly v US Steel Bulk of activities test, (not where final decisions are made) Corp Facts: P = PA citizen. D (USX) incorporated in NJ w/ principal place in NY or PA. NY: BOD, Chairmen & Execs meets there, central place of publications/decisions. PA: General operations: 32% of employees, 33% tangible property, 35% total productive capacity Rule: Look to bulk of activities, day-to-day corporate activity

 1441, 1404, 1406 Removal & Transfer

1441 REMOVAL
The 1789 Judiciary Act was the first time Congress introduced removal. Per 1441(f), a fed ct is not precluded from hearing a case even if the state ct that transferred it lacked juris over it. Its an action intended to protect both parties either can choose to remove to a fed ct in the same district where the state action is pending (stays within state), as long as the dc has original jurisdiction under 1331 or 1332, and as long as D is not is in his home state (he doesnt need to be protected from prejudice). A 1331 claim can be removed regardless of the citizenship/residence of the parties. Under 1441(c), the entire claim is removed even if joined w/ separate and independent claims, although the TC can exercise discretion and remind/remove the state question claims if they want. 1446 governs the procedure for removal. Removal confers venue, regardless of whether or not venue would have been proper under 1391 if the case had been brought in federal ct initially. Per the unanimity rule, all Ds must agree to remove.

Does new court have SMJ? 1331 can remove regardless of citizenship 1332 diversity req. must be met Cant remove if D is in home state
Removal confers venue (Holds even if that fed ct would not have been the proper venue under USC1391 if case had been brought in fed ct initially 1441(a): REMOVE to fed ct that (1) W/ original jurisdiction (SMJ) under 1331 statute) and 1332 (diversity) (2) To a fed ct in the district where state action is pending. (STAYS WITHIN STATE) Unanimity Rule: ALL Ds must agree to remove! If they disagree, they cant move. Limits 1441(b): D cant remove if hes in his home state - doesnt need to be protected from prejudice. **Exception: Federal claims (1331) can be removed regardless of citizenship/residence of parties 1441(c) Entire claim is removed even if joined w/ separate/indep claims (otherwise non-removable). Trial Court can exercise discretion and remand/remove state question claims if they want. 1445 Exceptions on Removal 1446 Procedure for Removal (a) short/plain st, (b) Within 30 days - If claim didnt assert fed q (not initially removable), notice of removal can still be filed within 30 days o f amended pleading, motion or order that would make it removable

1404 TRANSFER
Venue TJ convenience of parties & witnesses Interests of justice

1404(a) One DC in fed system to another in diff state or district. (CAN MOVE OUT OF STATE) Transferor law governs (old state) Van Dusen v Barrack - prevents forum shopping. - Ferens v John Deere transferred from MI (SOL was okay), to new state, (SOL had run out). New state had to apply MI law so hes ok Transfer for inconvenience to parties AND witnesses Must be where action could originally be heard Hoffman v Blaski Hoffman v Blaski D transferred to place where he had affirmatively moved to recently, but didnt have proper venue @ time of suit. Cannot transfer where couldnt have originally brought suit. Otherwise, D would have more power and could move the action theoretically anywhere could lead to discrimination & harassment. If, after removal, still the wrong court = Piper Aircraft Co. v. Reyno (1981) forum non conveniens Courts use this as a way not to unduly prejudice parties whose claim may be barred by statute of limitations if dismissed for lack of venue (keep alive to avoid SOL to run) 1406A Transfer from wrong ct (without territorial juris) (tho venue can be proper) Transferee law governs Allows for cases field in wrong court to be transferred in interest of justice Initial court can transfer, even if lacks jurisdiction Goldlawr v Heiman Forum nonconveniens harder to show bc dismisses the case entirely & parties must bring up themselves in another district State can transfer to other state. However, typically this is only used in fed ct where party wants to transfer out of country.

Venue
restricts where P can sue, assures suits are tried where there is sensible relationship *Is Ds privilege and may be waived by failing to raise at response (12b3, 12gh) 1391 (a) Venue when Juris founded on Diversity 1. Where any D resides if all in same state 2. Substantial part of events or omissions occurred (or property is located) 3. FALLBACK - Where any is subject to P. jurisdiction if above places cannot be met 1391 (b) Venue when Juris not founded on Diversity 1. Same as (a) 2. Same as (a) 3. FALLBACK - Where any MAY be found (if above cannot be met) 1391 (c) Corporations reside in any judicial district where PJ can be established. If state has multiple districts, PJ is restricted to the district of (1) PJ or (2) most contacts. Focus on judicial districts/ NOT states Reside only in your domicile OR, Reside (for venue) in several districts if many residences maintained. Forum selection clauses upheld generally (agreeing in advance on venue) (even if its an improper district under 1391) See Carnival Cruise v. Shute (1991) Exceptions to 1391 venue: Copyright Patent infringement 1400b Federal officials Interpleaders CL: local actions where land is located! If judge feels venue is inappropriate for justice, may transfer through 1404a even if parties like the venue 1406 Removal for Improper Initial Venue

Erie

1789 Rules of Decision Act (RDA), stated that federal courts would apply the laws of several states
Rules Enabling Act of 1934: 28 USC 2072 2072(b): Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect Swift v. Tyson - SC, 1842 | s450 Use Statutory, not Common Law Facts: Tyson purchased land using a bill of exchange. The bill of exchange was then given to Swift, Tyson refused to pay alleging that he had been fraudulently induced into purchase. Swift sues Tyson. Issue: Was exchange for endorsement valid consideration? Under NY law no. Fed law yes. Holding: Ruled that Judiciary Act of 1789, 34: "the laws of the several states, except where the constitution, treaties or statutes of the United States shall otherwise recognize or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply." only applied to statutory, and not common law Asks judges to look @ common law to reach independent judgment as to proper rule. Supposedly, uniform common law rules would evolve as body of general common law on similar issues accumulated. This failed. In Black & White Taxicab introduced discrimination in favor of out-of-stater by allowing them to pick fed law Use state law on substantive issues where theres no federal-making power & where states have authority to create ite Erie RR v. Tompkins - SC, 1938 | 455 Use Statutory + Common Law Prevent forum shopping + inequitable administration of laws. Facts: T gets hit by a train. Negligence case. T forum shopped to use fed laws ordinary negligence rather than PA laws wanton negligence Holding: The damage of brushing aside the law of a state in conflict with their views is too great for federal courts to continue in the Swift v. Tyson model. Fed courts should follow the states substantive law. Use PA law and threw out case. State law governs: standard of care to trespasser, enforceability of Ks, validity of wills, property transfers Swift overstepped constitutional boundaries b/c allowed federal courts to regulate matters Congress couldnt regulate under Constitution state judicial decisions are binding Twin Aims: prevent forum shopping + prevent inequitable administration of laws Confirms existence of judicial judge-made law Problem b/c corporations could create diversity by incorporating in another state Dissent: This is judicial activism, overruling the Swift regime City Services v Dunlap - 1939 Expanded Erie to extend to procedural issues Burden of proof on validity of title on the land SC found that this burden of proof relates to a substantive right, even though its a procedural issue. Policy: Crap, do we abandon Federal Civil Rules of Procedure for State ones now? Klaxon v StentorFed cts should use State body of conflict laws to determine which states law to 1941 apply Case brought in DE over breach of K, performance of K was in NY. Body of conflict law dictated NY law should apply. Fed cts should resort to each states body of conflict laws principles they look to when they need to choose which State law to use for substantive issues. Policy: Ensures vertical uniformity between state/fed cts within each state, but destroys horizontal uniformity among fed cts in diff states. Ps can choose btwn fed cts in diff states to get diff results. Note: A state court may choose another states substantive law, but they will KEEP THEIR OWN PROCEDURAL LAWS. After a transfer, the original cts statute of limitations will apply

Substantial procedures are not substantive, theyre still Procedural & Fed Laws Apply (FRCP) Medical exam = substantive or procedural? Substantial + procedural. Sibbach- 1942

(Fed. judicial practice) The outcome determinative test (Statute of limits = substantive) Facts: 1942 suit in equity for fraud in connection w/ transactions that took place in 1931. If state statute of limitations applied, case would be dismissed. But, if federal statute of limitations applied, the case would continue. Issue: Whether to apply the strict NY stds for statute of limitations or to apply the more flexible doctrine of laches of fed cts Holding: Consequences that intimately affect recovery should follow State law. Policy: The outcome in federal court should be substantially the same as it would be if tried in State court. Promotes consistency within State. Dissent: As form cannot always be separated from substance in a work of art, so adjective or remedial aspects cannot be parted entirely from substantive ones in these borderland regions. Guaranty Trust Co. v. York - SC, 1945 | 466 Bernhardt v Polygraphic Co. of America Used outcome determinative test to trump Fed Law 1956 Issue: Whether federal court sitting in diversity should enforce the Federal Arbitration Act, passed by Congress, where it conflicts with a state law that contradicts it. Holding: Didnt use fed law despite it being within Congressional power and obviously applicable. Instead, it used outcome determinative test to determine that Erie concerned trumped federal law. Narrowly interpreted fed statute to avoid Erie complications. Confirmed peoples worst fears about the uncertainty in the wake of Erie. (Federal statutes and FRCP were in risk because of Erie jurisprudence under Guaranty Trust) (Fed statute) Balancing test (Weight Fed > State interest) - principle still used --Affirmed that Fed cts follow State law for substantive rights if theyre outcome-determinative Facts: State law would allow judge to det. Employees status in tort . 7 th Amendment - Federal law which would permit the jury to det. His status. Holding: Federal interest in preserving the character and function of juries in federal courts outweigh the concern that applying federal law would lead to different outcome than if state law applied. Policy: Power momentary swings back to Fed a little Byrd v. Blue Ridge Elec. Coop. - SC, 1958-473 PART I: Goal of Erie is to prevent forum shopping/inequitable dist. PART II: FRCP win unless they abridge or modify substantive right (REA) Facts: Mass. Required in-hand service, but P served process by leaving sit at home with person of suitable age and discretion as per the federal rule 4(d)(1) Holding: Rule 4(d)(1) doesnt exceed the REA/Constitution, its the one that should be followed. Outcome determination test is to discourage forum shopping. Rules: When Federal trumps State Law Article III, 1: congress has the power to establish lower federal courts Article I, 8: and make law necessary and proper for exercising that power. NOTE: also there is statutory power since Congress reviews FRCP before taking effect, See 28 USC 2074 Hanna v. Plumer SC, 1965 | 479 (1) Federal Constitutional Provisions Constitution governs via Supremacy Clause (ie: jury verdict Hanna) -A fortiodi if a federal constitutional provision applies, it will control despite a contrary state statute/practice US Const Article VI 2 (what kind of test does this need? Why do we end up applying Hannah II to this p.210 glannon?) (2) Federal Statute Is there a conflict btwn State/Fed? - If not, use Hanna I test Is Fed statute arguably procedural - if so, follow Fed statute b/c Congress has power to enact procedural governing statutes You could try to avoid trouble by arguing that there is no direct conflict (ie: Walker/Gasperini) Ie: governing burden of proof, jury instruction, etc. (3) Federal Rules (FRCP) Does Rule really regulates procedure (valid under REA) - it rarely wont Does Rule abridge , enlarge or modify a substantive right (REA2) Substantive Law = judicial process for enforcing rights and duties - Is is bound up with the substantive claim itself? ie: giving longer life to claim Walker, type/measure of damages Erie, statute of limitations -York) - Pt of statute to govern a non-procedural matter? Or aimed at augmenting efficiency of litigation process? Ie: primary rights outside the ctroom, incidentally affecting them is sometimes ok - Does it favor one party over another? - Does it trench on the policy underlying the states approach? (4) Federal Judicial Practice modified outcome-determinative test Would applying the judge-made law lead to major forum shopping? Inequitable administration of the law? - if so, use State law Ie: inequitable = when Fed law instead of state would open up significant diff. in litigation opportunity, viewed

prospectively

Szantay v Beech Aircraft Corp Balancing all three approaches (York, Hanna, Byrd) Representatives of Szantay (decedent in Illinois) brought suit against Beech (Delaware/Kansas) and Dixie (South Carolina) in federal district court in SC. SC door-closing law that prevented a foreign party from suing a foreign corporation on a foreign cause of action. (crash in TN, service in SC) Outcome Determination (York) Does refusing to apply SC statute materially affect outcome? YES, you can sue in Fed but not State ct Modified Outcome Determination (Hanna) Would this lead to forum shopping/inequitable distribution of laws? Not enough to outweigh federal concerns Do federal interests outweigh state interests (Byrd) Fed: avoid discrimination, convenient forum, State: weak Fed wins **We end up on the Federal Side Day & Zimmerman v Challoner Repudiation of balancing approach for Klaxons choice of law s injured by exploding shell while fighting in Cambodia sued maker of the shell in Texas federal court. Texas conflict of laws rule applied a place-of-the-injury rule, so technically should apply Cambodian law on proof of negligence. Holding: Adhere to Klaxons conflict of laws determination: A federal court in a diversity case is not free to engraft onto those state rules exceptions or modifications which may commend the federal court, but which have not commended themselves to the State in which the federal court sits. . Outcome determinative test (Hanna Part 1) Use state law Inequitable to allow suit to go forward in fed ct that would be barred in State The car accident happens, filing is made within the state statute of limitations, but D not served within the statute of limitations. Issue: Kansas has a 2 year statute of limitations, but does the clock start when the lawsuit is filed, or when the defendant is served? Rules: Rule 3: action is commenced with filing lawsuit is timely. Kansas statute: action is commenced at the date of service lawsuit not timely Holding: This is outcome determinative so according to York, we use State Ct. Walker v Armco Steel Corp (Same)(No conflict between state & fed Rule 3) Hanna Part I analysis Facts of case were exact replica of those raised in Ragan. (Complaint filed against within two year statute of limitations, but service occurs after 2-year period) Holding: Rule 3, which states when a civil action is commenced, does not apply to the issue of tolling the statute of limitations. There is no conflict btwn state and federal rules, each govern their own sphere. Ragan v Merchants Transfer Is there a Federal Rule? Rule 3 doesnt work b/c it states when civil action is commenced, not when statute of limitation tolls. (This is interpreted narrowly b/c otherwise it would infringe on substantive right of D to have peace after certain time) Then apply judge-made law (Hanna Part II) Yes, outcome determinative. Inequitable to use fed over state so must use state There is simply no reason why, in the absence of a controlling federal rule, an action based on state law would concededly be barred in the state courts by the state statute of limitations should proceed through litigation to judgment in fed court solely bc of the fortuity that there is a diversity of citizenship btwn the litigants

Gasperini v. Center for Humanities - SC, 1996 | The Hybrid or Compromise Approach to satisfy state & federal interests 491 Facts: Diversity suit for damages for photographers lost slides: jury awards $450K ($1500 per lost slide); District Court denies Rule 59 motion for amended judgment. Federal Standard: shocks the conscience more deferential ------review of abuse of discretion (1 shot to overrule by showing abuse) New York Standard: deviates materially stricter less deferential ----- de-novo review (2 shots to overrule - @ TC and AC level) Therefore, state court is highly preferable! Issue: Should state or fed law apply to the trial & appellate procedures? Is there a federal rule on point? SC says Rule 59 does not apply (no conflict btwn state/fed rule 59). (Therefore, skip Part I of Hanna analysis) TC Analysis: How about Judge-Made law? 1. Outcome Determinative: Yes (award may be overruled depending on standard) 2. Forum Shopping: Yes (more likely to file in federal to avoid excessive reward being overruled) 3. Inequitable administration of the law: Yes ***Therefore, must apply state law in federal diversity case at trial level AC Analysis: 7th Amendment higher review of abuse of discretion to respect jury decisions (constitutional right) Holding: Combine the two: use state law but also apply higher federal abuse of discretion standard of review to respect state & fed interests. Policy: Rescues Federal Rules *Approved Byrds emphasis on importance of federal interests as a factor in making an Erie choice

Federal Court applying state statutes and law in Diversity jurisdiction 1332 Federal Courts apply state law by: Applying state statutes Following state court interpretation of statutes Applying state laws as

ANNOUNCED or WOULD BE announced by the states highest court.

FORK: what if states highest court hasnt decided on the issue?

Court with Claim State trial court, appellate court

Applying State Law Mandatory authority= States highest court May look at federal courts application as PERSUASIVE authority if state appellate or supreme court has not made a decision. State Sup Ct Stare decisis, unless it decides to overturn previous decision Federal District Court Mandatory authority= States highest court Unless, no decision by them, then may look at what appellate courts have said, or GUESS what states highest court would do. Federal AC Mandatory authority= States highest court Persuasive Auth = other federal courts guessing what states highest court would do. Supreme Ct Mandatory authority = only itself. Persuasive authority = states highest court. **if a federal court applies the law, guesses what state court would do, but a year later, state supreme court goes the other way? Certification fed courts can certify an issue with state supreme ct. (state courts discretion to review issue or not) (Uniform Certification of Questions of Law Act) increased expense, burden on state ct, threat to judicial function of fed cts in diversity (diminished sense of responsibility) Can the court reopen if parties request Rule 60 (b)(6)? TENSION: o NOfinality is important, its not fair to have diversity judgments never be final o YESimportant not to have weird judgments out there/ its not fair

Joinder
Rule 20 (optional) Can join in one action as (1) Plaintiffs and as (2) Defendants:
multiple claims if arise out of same transaction/occurrence or series of trans/occur. + common question of law or fact Claims: Jointly, severally, or in the alternative More efficient Consistent judgments

Joinder is NOT required, but permitted. b/c has right NOT to sue if they dont want to! For SMJ and P. Jurisdiction issues/concerns

Rule 13
given

(a): compulsory counterclaim, - juris by supp 1367 If it occurs out of the same transaction/occurrence use it or lose it! Perhaps, brings out fair issues all at once, prevents from waiting, taking it somewhere else and suing . NOTE: SMJ and P jurisdiction in this forum is NOT an issue, b/c already has PJ over simply by virtue of them filing claim there. (b): permissive counterclaim (unrelated claim), efficiency says, settle all (g): cross claim against co- . If occurs out of same transaction/occurrence (optional)

claims w/o separate suit. still need SMJ juris given by supp 1367 Responding to counterclaim (within 20 days) Rule 12
Williams v. Robinson (D.C. 1940) - Not same transaction Facts: Husband sued his wife & X in divorce proceeding for adultery. X brings separate suit against husband for libel based on the charges for adultery. Husband moves to dismiss for failure to state claim upon which relief can be granted Holding: Motion dismissed to hold it as the same transaction or occurrence would admit there was an adulterous affair, and fails same evidence test.

Rule 18(a): a party can join all claims against another ONLY IF (one) proper claim has already been asserted. (optional) >>>> still need SMJ

Rule 14 D brings in 3rd Party optional

14(a): for to implead new parties against whom she has claims related to main claim; all or part must follow R8-11 Impleaded 3P is allowed to assert defenses against both . 14(a)(2)(A): assert defense against 3P 14(a)(2)(C): assert defense against original . (D): assert claim against original (same subj matter) (3) can assert against 3P (if same subject matter) 14 (a) (1) timing: sue 3P within 10 days of answering w/o Ct Permission, but generally Cts still have discretion Make sure SMJ is met in all cases Factors Courts Consider: In favor of impleader Efficiency of hearing related claims Denial of Impleader Undue delay in seeking Complication of main issues

Avoid repeated suits Avoid inconsistent judgments

Potential prejudice to from impleading sympathetic 3P.

Jurisdiction Issues: 3P doesnt count for venue 1367 a supplemental jurisdiction 3P doesnt have to be diverse from anyone.

Essentials and Interlopers: Rules 19 and Rule 24

Rule 19(a) Must join if feasible when:
Should party be joined? 19(a)(1)(A): when ct cannot accord complete relief amongst existing parties UNLESS absentee also brought in, Eg: joint owners, and only sues 1 Eg: sue landlord who is leasing from someone else. (19a3) - waivable Is joinder feasible? -Do they object to venue

Is the party indispensible? - Is there PJ/Ter Juris? waivable 19(a)(1)(B)(i): Or if proceeding w/o person impairs their ability to protect their interest. - Will it deprive ct of SMJ? non-waivable 19(a)(1)(B)ii): Or if NOT joining exposes one of the original parties to multiple obligations Shields v. Barrow (U.S. 1855) old school interpretation of R19. Seller (CA) sues against two (MS) of six endorsers of a bad note. Other four endorsers + buyer left out of the action bc theyre from CA & would destroy diversity. In 1855, the court threw the case out because the missing parties could not be joined. Note that R19 has changed (due to 1966 amendments) since its application in Shields. 19(a): parties should be joined because judgment in federal court as present endorsers may hold them severally liable or it might prejudice

Rule 19(b): If Person should be joined under 19(a) but cannot? 3 Options: TODAY: Courts Consider the factors a) Would judgment in absence prejudicial to parties joined & not? b) Extent protection can be used to avoid prejudice c) Adequate w/o party? d) gets adequate remedy (in another ct) if dismissed?

Yoonjees Joinder Chart

Stage in Trial Designing that lawsuit Parties 20(a) multiple suing together 20 (b) multiple s to a suit Can also use rule 20 when is 13 a /13b counterclaimingor cross claim. 14 (a)-- D1 can IMPLEAD D2 who for liabilities to 1 (not original P) Completely voluntary. 19a--must be joined if feasible 19b--what to do if not feasible. Is this a move by the ? Usually used for the 19b purpose, the get the claim dismissed. Claims 18(a)--With one valid claim, can bring all kinds of claims (for efficiency)

Defensive moves after suit is filed

13(a) compulsory counter claims 13(b) permissive counter claims Once 13 counterclaims attached, 18a, bring all your claims. 14 (a)2(A)--D2 can counterclaim against D1 (B) defend against P, (C) claim against P, (4) vice versa

Parties that want IN (within 10 days after suit is filed)

24 (a)1-- right to join if there is statute (US govt) 24 (a)2--right to join IF 3 conditions MET 24b1B -- if 24a doesn't work.

Rule 24 Intervention
24(a)(1) MUST grant intervention if theres a statute authorizing: Eg: for govt (uS AG, trademark office, etc) OR (2) (3 conditions) (a) interest relating to the property/transaction subject of action (b) and interest may be impaired if not allowed in case AND (c) absentees interest not already adequately represented by parties to the action 24(b)(1)(B): MAY grant permissive intervention when Ct has ultimate control When: Limitations: o same question of law, o Timely under 24b3? (will it delay or prejudice?) o shared interest, o Require reopening of discovery? o more efficient o Did they attempt intervention sooner? o Given conditional right by fed statute

Rule 22 Interpleader

Allows Ps to interplead Ds whos claims may expose P to double/multiple liability, even if claims are independent, and even if P denies liability. Allows Ds exposed to similar liabilities to interplead through cross/counter-claims Rule interpleader -Limited by Rule 4 effective service requirements and by general venue requirements in 28 USC 1391. -Complete diversity req. (both sides of v) -Normal rules of PJ -Minimum: $75,000. Statutory interpleader Limited by 28 USC 1397 venue requirements, but it has nationwide service of process under Rule 4(k)(1)(C) Personal jurisdiction is much less restrictive than the normal requirements. Minimal diversity between any two claimants (the insurance company, a.k.a. the stakeholder, is not even considered). Minimum claim requirement is $500. Only available to diversity of citizenship claims Statutory interpleader is intended to allow people to be brought into federal court, so service of process is less limited.

Supplemental Jurisdiction 1367

Pendant jurisdiction: Federal claim + related state claim
See united mine workers v. Gibbs, federal LMPA + state contract interference. (1) Pendant Juris = Common nucleus of operative fact United Mine Workers v. Gibbs - SC, 1966 | 376 (2) Ct has power to reject this Facts: G loses job/benefits, sues for violations of 303 of the Labor Management Relations Act of 1947 (fed SMJ) + TN state common law. Issue: Whether the court properly entertained jurisdiction of the claim based on TN law. Holding/Rule: (1) SMJ when state & fed claims arose from the same nucleus of operative fact. (2) SMJ up to Cts discretion. (consider judicial economy, convenience and fairness to litigants- state issue should not be predominating claim). Aldinge Gibbs met (Constitutional) BUT no Statutory grant of juris. (OVERRULED BY 1367) r Facts: Gibbs test met but State claim inconsistent w/ apparent intent of Congress to bar Fed. Civil right claims under1983 Rule: (overruled by supp juris) In addition to Article III power (under Gibbs), the court must also have statutory power to hear the case Do we have power to hear claim? o common nucleus of operative facts test o Federal courts have power to hear state claim, but not required. Ct can sever. Does it make sense to hear claim together? YES federal court | NO dismiss, goes to state

Factors: o State law claim predominates? o Sensitive issues of state law? o Confuse jury? o Federal issues resolved early?

Ancilliary jurisdiction: claims by over other 3P

Close connection between original and added state claim SINGLE court case Available for: o 14(a)(1): D interpleads 3pD o 13(g): crossclaim against co-party o 24(a): intervenor Deny for 13(b) permissive counterclaims. (not same subj matter) Owen Equip v Gibbs met BUT no Statutory grant of juris (1332 diversity conflict). (OVERRULED BY 1367) Kroger Facts: Went against diversity 1332 to allow interpleading of nondiverse 3rd party D (14a) Rule: (overruled by supp juris) In addition to Article III power (under Gibbs), the court must also have statutory power to hear the case

Finley v. US

1367 Supplemental jurisdiction

made a statute in 1990 added statutory grant of jurisdiction in response to Kroger/aldinger 1367 (a) Very broad, same as Gibbs, BUT 1367 (b) Limits on claims brought by P under 14, 19, 20, 24 (preserving limits from Kroger) 3 part analysis Is the constitutional power Art III 2 to hear supplemental claim? A proper claim exists within federal court jurisdiction? (SMJ/diversity) Related claim arises from same operative facts? Gibbs Statutory grant of jurisdiction over supplemental claim? [newly provided by 1367(a), limited by (b) in diversity cases P claims] Use discretionary factors to decide whether to do so. NOTE: If theres no supplemental juris, always ask: Is there Independent SMJ?? (diversity/$)

Ch 17 Jurisdiction vs. Joinder - checking power (rules) + jurisdiction (1331,1332)

*If there is a separate basis for SMJ (via federal law) for some parties, their citizenship is exempt in the determination of diversity for the others. What rule that authorizes? Rule 13, 14, 18, 19, 20, 22, 24 (some req. same transaction/facts or law) Is there Independent SMJ? (Diversity + Amount) Is there Supplemental Jurisdiction? Same nucleus of facts? Gibbs Is it a diversity case? - Kroger nod 1. Did PS CLAIM destroy diversity? 1367b (14-3rdpD, 19-req joinder, 20-permissive joinder, 24intervenor) 2. (OR) proposed Ps under 19 (req) or 24 (intervenor)

Rule 23 - Class Actions &

Collusive Agreements

a1 - So numerous, joinder infeasible b1 possibility of inconsistent judgments, pool of funds insufficient (no notice req) a2 - Common question of law or fact b2 D made characteristics of class a basis for own conduct (no notice req) a3 - Typicality b3 class action superior to individual actions (notice req for all potential Ps) a4 Adequacy of representations c members can opt out of b3 --d (power of representative), e (settlement) cant settle w/out ct approval

Derivative actions by shareholders Rule 23.1 When one or several shareholders sue on behalf of all the other holders to get company to do something/stop doing something Action takes on characteristics of a class action. Actions relating to unincorporated associations Rule 23.2 Class action can be used against unincorporated associations by naming a few members of the association as representatives. By naming a few members in class action, lawyers satisfy diversity easily and limit the venue and service requirements Collusive Actions Kramer v Caribbean Mills 1969 D entered agreement to purchase stock in Panama Finance Co. Paid down, but no installments. Assigned interest to Kramer (P) for $1, who promised to pay Panama 95% recovery. Collusive Agreements cannot be used to create diversity of citizenship 1359 Collusive Agreements Rose v Giamatti Rose sued D (commissioner) in OH state court. D removed them to fed. Rose tried to defeat diversity by joining 2 unincorporated assoc (major league baseball & Cincinnati reds) to destroy diversity. Nominal/formal parties will be ignored suit will stay in fed ct uses case law to establish (NYTimes)

Service of Process
Service of process
= delivery to a party or witness court orders. = service of initial notice to of filing of lawsuit

Rule 4:Service of Process

Rule 4(c )(1): what docs (summons + complaint) Rule 4(a) contents of summons 4 (e) and 4(d): how papers served o 4(e): serve individuals: (1) follow state law or (2) Personal delivery, leave copies at individuals dwelling or usual place of abode w/ person of suitable age/discretion who resides there, deliver to agent appt by D to receive o 4(c) (2): after 1980: anyone over 18 and NOT a party can deliver, usually s lawyer hires someone o 4(e)(1) for ppl outside of statefollow state laws where is. 4(h): serving corporations: o 4(h)(1) if corporation is in US serving officers, manager, or general agent is OK. o 4(h)(2) if corporation is outside of the US 4(m): must serve D within 120 days of complaint filing date 4(c )(2): who must serve 4(d) waive requirement of service (get deadline extended to 60 days from 20 days) o 4(d) waiving is sort of mandatory since 4(d)(2)B: impose cost of service to if w/o good cause 4(d)(3) gives 60 days to respond if they waive. Cf to 20 days. Service grants personal jurisdiction when 4k1a - State court has PJ (by long-arm), then Federal (in that state) automatically does too + ( own test) 14th Due process 4k1b - Impleaded parties (R14,19) served within judicial district <100 mi away 4k1c - Authorized by federal statute For Federal claims (under Fed law) 4k2a D not subject to any other state cts jurisdiction + (rule requires this, not constitution) Constitutional/laws (5th Amendment, req min contacts w/US as a whole) 4(n) - Ct can assert juris over property if authorized by fed statute

Defensive move: 12(b) (5): attacks adequacy of method used in service to give notice.
*State statute for service complied + notice not received = Constitutional *State statute not complied with + notice received = Constitutional

Procedural Due Process gives person opportunity to be heard b4 gov unduly impairs
his property/interest (14th)
State law determines in state ct, Rule 4 determines in Fed Ct (1) Informs D that action has been filed and failure to respond = default (2) Formally subjects D to authority of gov. Mullane v. Central Hanover Bank U.S. 1950 Reasonably ascertainable information Facts: Beneficiaries of NY trusts given notice through publication without names, whereas at time trust set up bank sent mail notice.

Rule: Notice by publication constitutional if ordinary due diligence would not find location of beneficiary, even if never received. HOWEVER, when whereabouts are known/easily known, notice by publication unconstitutional. Holding: In-hand service not required (too many people), but notice by mail req b/c they knew their addresses. Emphasizes balance between cost and practicality: Court acknowledges that not everyone will get mail notice, but because there is unity of interests individuals not notified will be protected by those who did relevant to class actions. Mennonite Board of Missions v Adams Mail notice req. @ minimum to last known address Facts: Proceedings to sell real property after owners nonpayment of taxes notice was posted on county courthouse and published multiple times. Certified mail was sent. Mortgagee learned of proceedings after title had passed during quiet sale Rule: (1) Mortgagee has substantial property interest thats significantly affected in tax sale (Right to be heard) (2) Constructive notice must be given to last known available address MAIL NOTICE IS REQUIRED at the minimum Holding: Publication in local newspaper inadequate to inform landowner whos name was known to the city and on official records. Jones v Flowers Not adequate if KNOWS didnt reach party Facts: Owner of property fell behind in tax payments. Tax authorities sold in attack sale. Jones didnt get notice until after 30-day post-sale redemption pd ran out. Tax authority had gotten notice but Jones didnt receive. Received letter back labeled unclaimed Holding: Not proper b/c tax commission KNEW it didnt reach Jones. Lehr v Adequate b/c didnt know address - Fathers responsibility to put name in registrar Robertson Facts: Father had not est. relationship w/child but wanted to be notified of his adoption. Rule: Not putting his name on the putitive father registry so they didnt have last known address was his own fault.

Prejudgment, Garnishment, Attachment, Notice

Matthews v Eldridge 3-FACTOR BALANCING TEST
Facts: 3-factor balancing test for garnishment (1) Interest of individual in keeping property. -If its very serious, youll be more inclined to provides additional safeguards (pre-judgment, etc) Ie: pre-judgment if not sensible to wait til the end, interlocutory judgment if other person may use/move resources (2) Risk of erroneous deprivation (procedures/probable value) vs value of additional procedural safeguards (3) Cost/admin burden of additional safeguards + Government interest in efficient adjudication Ex-parte = seizing w/out knowledge of party theyre not notified Benefit they wnt take property and run, so you might want to attach first allows post-seizure opportunity to challenge (see if it comported with due process) Its hard to get ct to allow you to do this Affadavit can help assure judge claim isnt frivolous (factual allegations/probable cause, etc) Bond can reduce risk of error (CONSTITUTIONAL) 3 auto accidents- (1) ordinary mail from which registered mail had been returned unclaimed, (2) publication in newspaper after registered mail laws returned unclaimed, (3) delivery of summons/complaint to insurance carrier + ordinary mail to Ds last known address. ok b/c it was the conduct of the Ds in removing without informing people of whereabouts that caused failed service. Wages are type of property & garnishment prior to hearing violates due process (UNCONSTITUTIONAL) Statute allowing seizure by posting bond, other party could regain if posted bonds for double value within 3 days Not enough proof before seizing, or notice after. CONSTITUTIONAL) Statute allowed seizing, gave other party right to immediately reclaim, whereupon P must provide proof of right to property. Constitutional b/c put burden of proof on party seizing and gave immediate venue for relief (UNCONSTITUTIONAL) statute allowed seizing w/ affidavit that stated amt claimed + reason. thats still mere conclusory allegations, not real proof. Affidavit must show probable cause.

Dobkin v Chapman Sniadach Fuentes Mitchell v Grant North Georgia Finishing Inc

Stating the Claim: Rule 8(a), (c), (e), (f), 9(b), 11 - asserts if clause,
asserts unless clause
Specificity - Rule 8 short & plain (cause of action) (8a) - (1) grounds for jurisdiction, (2) entitlement to relief, (3) type of relief sought Dont need to plead evidence, general theory of negligence is enough

Sierocinki: P sues manufacturer for exploding dynamite cap. D motions for more def. statement (12e), dismissal for failure to state claim (12b6). Ct: P need not plead ev., can be found through Rule 33 interrogatories, general theory of negl. = ok Policy: wastes courts time to determine if theyre facts, conclusions or evidence. Case decided on merits, not pleading, w/increased anonymity, unjust to require facts

Plausibility Test Twombly 2007: alleged Bell Atlantic engaged in parallel conduct; illegal conspiracy in restraint of trade. Established plausibility test: higher standard to overcome 12b6 (failure to state a claim). Overruled Conleys possible standard (plain and simple). Policy: Changed rules, higher pleading reqs give courts more sway to dismiss a pleading before it is heard 1. legal sufficiency est. legal theories to weight facts against 2. factual detail particular mention of factual circumstances of each element, enough to permit judge to find that liability is reasonably plausible Judge wont assume conclusions are correct Factually allegations assumed as true: Pardus (SC 2007): Facts: brought civil rights claim against prison officials from wrongful termination of medical treatment (hep C) that endangered his life. Holding: pleaded element in conclusory fashion, departure from Fed Rules of Civil Procedure b/c judge must accept as true all factual allegations in the complaint no ref to plausibility test

Factual allegations dismissed:

- Ashcroft v Iqbal (SC 2009): Facts: Pakistani Muslim sues Attorney General & FBI director on allegations of harsh conditions of confinement on account of race, religion, or national origin. Conclusory allegations are disregarded bc they didnt show anything: that def had been treated such because of discrimination. You could say they were purposefully discriminating in the wake of 9-11. Determining plausibility requires ct to draw on experience/common sense: does nonconclusory factual allegations allow the ct to draw the reasonable inference that is liable for alleged conduct? Exception: alleging fraud/mistake (9b): state with particularity 8c: Affirmative Defenses must be raised here if you want them in the trial 8d: Claim in the alternative: allows P to make multiple inconsistent claims assists P who is unsure of which claims to apply to Form 11: Date/Place, $med. expenses, $judgment

Sanctions Rule 11
Lawyers must make reasonable inquiry into if there are good grounds to support a claim - 1983: started req. attny to certify legal claim huge increase in sanction claims - 1993 amendments Sanctions only apply when lawyers continue to assert claims that he or she knows to be groundless P must acknowledge assertions he cant prove at that point but that he or she believes will eventually be proven. Allows reasonable opportunity to respond to notice, can corrects within 21 days Firms should be held jointly responsible for violations committed by partners with some exceptions Not a fee-shifting rule 11(c)(2) states sanctions should limited to what is sufficient to deter conduct by other similarly situated. Murphy v. Cuomo (N.Y. 1996) D manufactured stun guns, granted summary judgment on claim of conspiracy with NYPD to spray innocent people. Even after 20 months, could produce no evidence. Rule 11 sanctions: imposed. Rule 11c2 motion cannot be filed if challenged claim is corrected within 21 days after service

Defenses/ Motion to Dismiss

Once sued, s Options: 12(a) answers (OR) 12(b) pre-answer motion to dismiss

*Dont need to answer the rest of complaint until after motion is decided Were defenses 12b(2-5) available in pre-answer motion? If so, must be raised with all. If not, can raise later w/out being waived.
Denial Rule 8(b) Affirmative defense Rule 8(c) Enumerated defenses Rule 12(b) must be consolidated into pre-answer motion Lack of subject matter jurisdiction Lack of personal jurisdiction -- (2-5 waivable) Improper venue Insufficiency of process Insufficiency of service of process Failure to state a claim upon which relief can be granted (if all facts admitted, there must still be no basis for relief) (67) can be in trail, post-answer Failure to join a party

1. 2. 3. 4. 5. 6. 7.

12e more definite statement, 12f strike should be in pre-answer motion but can be heard @ cts discretion

Coleman v. Frierson (Ill. 1985) - , special investigator, sued under civil rights statute for lost wages and injuries after
wrongful termination. = willfully delinquent in discovery and judge held them liable by default. Jury found damages for . filed motion to set aside verdict based on res judicata, 12(b)(6), etc. Holding: Motion denied. 12(b)(6) cannot be raised on appeal after judgment as been rendered Doing justice between litigants, after all, hinges as much on respect for the procedural rules governing the progress of the lawsuit as on affording parties liberal scope in making their arguments on the merits.

Amendments to Pleadings
Rule 15
a(1)(ab) - 1st time as matter of right before any responsive pleading or within 20 days of pleading (response within 10 days) a(2) - Other times w/ written consent @ cts discretion should freely give when justice so allows (party consent works too) b(2) Issues tried by consent (c) Relation back (when out of same conduct, transaction or occurrence Gibbs test) Does state statute allow relation back? (c1a) or same conduct, mistaken party etc check c for examples.

Blair v. Durham (6th Cir. 1943) Amendment relates back to same transaction Facts: Contractor sued for negligence of sub-contractor employees; SOL runs; amended complaint to include construction of scaffolding, for which contractor is responsible, unlike the negligence of sub-contracted workers.

- Will there be prejudice? Beeck v Aquaslide 1977 P injured on waterslide. D admitted to manufacturing, then found out they didnt and amended. Holding: allowed b/c error in good faith & due diligence. Prejudice no sufficient. -Is party acting in bad faith? Did they have opportunities to amend before? Pleadings Its where the parties state their claims, their defenses, what theyre going to argue! Motions When parties ask the court to DO something Eg: 12(b)(6) demurrermoving to dismiss the claim for failure to state a claim that entitles to relief

Discovery
RULE 6b extension of time ct may grant if request is made b4 original time expires #1 Rule 26(a) PRETRIAL automatic disclosure
name/addresses, within 14 days after 26f conference (a)(2-3) disclosure of expert testimony 90 days before trial (opinions/qualifications can be deposed l8r) Fed Rules of Evidence 702: expert witness A person whose testimony will assist trier of fact in understanding b/c of special knowledge, skill, experience, training, or edu. (3) Pretrial disclosures 30 days b4 trial, objections in 14 days

#2 RULE 26(f) CONFERENCE #3 Then, discovery can proceed

Rule 26 (b)(1) very broad SCOPE but also limited to any nonprivileged matter relevant to any partys claim or defense, Used to be even broader before 2000. See Oppenheimer Fund, Inc. v. Sanders (US 1978) (committee recommended reining in at the outer bounds of relevance) Purpose of broadness: designed to help define and clarify the issues Info doesnt need to be admissible at trial of discovery appears it will reasonably lead to discovery of admissible evidence Privileged info: o Attorney-client (FRE 501)(rationale: for effective representation need full and frank communication. Notion of client expanded to include any employee of a corporation. See Upjohn v. US, US 1981) o Priest and penitent o Doctor-patient o Husband wife o Psychotherapist-patient o Work products (26b3)= docs/tangible things developed in anticipation of litigation & legal theories/litigation strategies 26b3b Hickman v Taylor tugboat sank and didnt req. release of statements of crewmembers after accident b/c no under hardship since witnesses readily available & other party had access to them o Nontestifying experts 26b4b (only in exceptional circumstances) o Electronically produced docs that impose undue burden 26b2b

Exception: Rule 26 (b)(3) WORK PRODUCT BY REQUEST

documents and tangible thingsprepared in anticipation of litigation or for trial by or for another party or its representative only obtained in discovery if requesting party can demonstrate substantial need for materials and equivalent information through other means w/o undue hardship Note: courts may choose to protect info, and when they do, dont need to disclose. cannot obtain

***Rule 26(b)(3)(B).

Also, even if showing is made, mental impression, conclusions, opinions, or legal theories of a partys attorney or other rep shall be protected. 1. Docs prepared for litigation are barred 2. Information that cannot be obtained may be ordered to be produced by court 3. Opinion work products are protected

***Rule 26(b)(4)(B) discovery of non-testifying experts only in exceptional circs (a) may be deposed Because it would be like prying into the strategy of the opposing party. Theyre fully involved in the prep of a case for trial, procedure, theories of recovery, preparing witnesses, etc. Would delve deeply into opponents trial strategy. **26(b)(5) Privileged info must be described describe nature of docs, communications or things not produced or disclosed in a matter that, without revealing info privileged or protected, will enable other parties to assess the applicability of the privilege or protection Rule 26(c)(1): protective orders from discovery requests After receiving a discovery request, parties can seek a protective order from annoyance, embarrassment, oppression, or undue burden or expense.

***Even if a motion to dismiss is pending, parties are still entitled to discovery from each other however, if they really dont want that they can ask for a protective order until motion/objection has been resolved. The courts will only allow this if the facts are not related to the merits of the claim (bc thats what the motion hinges on) (BUT they can still move for protective order) Rule 26(d)(2) cannot seek discover until after pretrial conference 26f (e) must correct something you know was wrong earlier (f) pretrial conference parties must confer as soon as practicable and at least 21 days before scheduling conference is held or scheduling order 16b (g) like rule 11 sanctions attny signature req and can be sanctioned Rule 37 compel disclosure + sanctions (must first prove that in good faith conferred w/ other party) if successful, other party may have to pay fees provides sanctions (striking claims, taking disputed facts as established, excluding evidence, dismissing an action)

Rule 11(3)(b) Discovering on Uncertain Claim - Even if youre not sure you have a claim yet, you can

invoke this rule for discovery if it is reasonable under the circumstances that the factual contentions, if identified, will have evidentiary support after reasonable opportunity for further investigation or discovery

Basic Methods of Discovery

ABA Model Rules of Professional Conduct Rule 3.1 Meritorious Claims and Contentions good basis in law/fact, for modification of existing law, not frivolous Rule 3.2 Expediting Litigation reasonable efforts to expedite litigation consistent with interest of client Mostly a self-help thing. Pretrial conferences must be made before parties can use interrogatories, req for docs, and depositions (R26f)

Rule 26 (a) (1)Automatic disclosure

Created in 1993, rationale that certain info will always be requested, so mandate w/o need for a request. Amended in 2000: removing awkward obligation to disclose unfavorable witnesses and info. limited to discoverable info and witnesses the party may use to support its claims or defense Does not force disclosure of damaging information. If party does not intend to present at trial. Rule 26 (a)(1)(B): 8 categories of cases exempted from discovery Rule 26(f) requires parties to meet and confer about disclosure and discovery Rule 26 (d)(1) parties are barred from traditional discovery until the meeting

Rule 33 Interrogatories

no more than 25 allowed, any matter under 26b, objections must be made within 30 days Questions to parties only seeking relevant information Good because theyre cheap, answers are planned w/help of lawyer MOST EFFECTIVE: for getting background information Also useful to force opponent to specify ground of general claims in contention interrogatories

Responding party can Only have to answer what you know/within your control 33(d) instead of answering involving business records, may invite responding party to inspect records impose discovery cost on other party OBrien v International Brotherhood of Electrical Workers - Parties can ask for interrogatories for anything except issues of pure law even opinion or contention that relates to fact or application of law to fact 33(a)(2), R33(c) Brandenberg v Israel Airlines 33(a)(2) Interrogatories can ask about scope 26b . P sues 2 airlines for negligence but doesnt remember events, was asked by D on factual basis of claim. P doesnt remember, pleads that this is legal question. Holding: D is entitled to as about factual basis for claim against them.

Rule 33(d) allow a search through records

Umphres v Shell P asked D to answer questions about conspiracy. Holding: D is allowed to ask facts on Ps def of conspiracy

Rule 34 Production of documents

nonparties can be compelled by subpoena (34c) Parties are obviously resistant to this and will not reveal unless asked in many cases, and will try to construe them narrowly and liberally to invoke privileges or other objections. Payment is worked out between the parties. Rule 34 (b)(1)(B) opening files allows responding party to open all files create burden on requesting party to go through them. Rule 34 (a)(1) sampling and testing allows production for testing and sampling, and entry on land for testing, etc. Rule 37 if you resist too much you can be sanctioned

E-discovery

(Rule 16 pretrial conf allows this) Changes in 2006 to allow discovery of electronic storage Rule 26(b)(2(B): disputes over e-docs not reasonably accessible: court considers whether to order production, deny production, or order with restrictions. And decides who pays. (but even if not reasonably accessible, can force to do w/due cause) Rule 26(b)(5)(B) if party inadvertently discloses info, may notify opponent who then MUST destroy, return, hold info. ( says parties can also discuss what happens with inadvertent disclosure in scheduling conference) Rule 37(e) No sanctions for destruction of e-docs through routine good faith operation of e-info system. However, there may be sanctions if party failed to prevent auto-deletion of info relevant to litigation.

Rule 16(b)(5)(B)(iv)

DEPOSITION: taking testimony from witness under oath can only take 10 Both parties sit with witness and questions A(2) can only do once before need leave of ct Rule 30(c)(1)Witness is sworn, testimony subject to penalties for perjury Most effective means for getting detailed info from witnesses before trial o Counsels get to SEE the party/witness; assess effectiveness as witness o b/c required to answer spontaneously, provides better preview of testimony than interrogatories o follow up questions allow counsel to explore detailed issues o gets deponent on record so they cant change their story later drawback: time and expense Rule 30(a)(1): says any person including the party can be deposed. If deponent a party, end notice of time/place Rule 30 (b)(1) NOT a party RULE 45 subpoena required. Rule 30(c)(2): even if opposing counsel objects, deponent answers, objection noted saves time b/c the most cases dont go to trial and thus dont need objections litigated prior. Unless Rule 30(d)(2): sanction Opposing parties have right to cross-examine. (to clarify statements, or if its a trial deposition instead of discovery deposition, opposing counsel will fully cross examine) Trial deposition = deposition used instead of witness LIVE testimony at trial. For whenwitness cannot be subpoenaed to testify in trial district, or unable to testify in person. Can depose in a different state if needed to serve via subpoena Rule 31 Written Depot - cheaper, but party can frame answer, so usually not used 30(d) can halt exam if its too offensive
Rule 30 Oral

Rule 35 physical or mental examination

Parties must obtain a court order to authorize physical and mental exams of parties whose condition is at issue b/c of intrusive nature, and only for good cause. See Rule 35(b)(1) party must provide a copy of independent examiners report to party Rule 35 (b)(3) party must also provide copy of exams and reports from own physicians. Schlagenhauf v. Holder Facts: Collision between bus and tractor-trailer. Contributory negligence alleged on bus driver. Holding: Not good cause for physical examination. Schlagenhauf did not put his physical condition in controversy. Still, it appears that R 35, in most cases should not apply to a -- s are not the one who actively put their medical conditions in controversy. When a files a personal injury suit, their medical conditions are immediately in controversy. Narrows the scope of trial by eliminating uncontested issues Party sends request to opponent to admit facts. Must admit or deny, or raise objection. But if a party makes a mistake, judges allow withdrawal of admissions b/c they would rather case be decided on merits, no on mistaken concessions.

Rule 35 (a)(2)

Rule 36(b) Requests for admission :

Rule 37 Sanctions for Failure to Make Discovery: Order to compel discovery : if the opposition
doesnt comply with request for really important info Rule 37(a)(1), party must first confer informally with opponent to resolve dispute without court involvement Rule 37(a)(3) move to compel disclosure or discovery. Rule 37(a)(5) if the motion granted court MAY order paying moving partys expenses and fees for the motion to compel. Rule 37 (a)(5)(C) protective orders defining scope of required discovery Rule 37(b) authorizes sanctions if compelled party still respond adequately.

37(c) Striking claims, taking disputed facts or claims as estb. Excluding evidence, dismissing action, ordering payment of feeds and expenses BOTTOM LINE: even if there is a threat of sanction in the background, the difficulty/time/irritating the judge most discovery issues get left unresolved/resolved w/o court intervention

Rule 32 exceptions to here-say rule where depositions can be used in ct

can use deposition to contradict/impeach testimony given by deponent as witness (if a witness says something in deposition, then something else in ct) Federal Rules of Evidence 802-803 Heresay Rule out-of-court statements cannot be used to prove a statement Freed v Erie Lackawanna Railway: Facts: During trial produced testimony that conflicted with statements made during interrogatories; argued that should be bound by interrogatory responses. Holding: Issue of discrepancy between interrogatory and trial evidence is for finders of fact to consider (admissions are different though because issue treated as closed)

45 Subpoena (b) Depositions -r30, (c) electronically stored info r26, (d) produce r34
anyone at least 18 years old and not a party can serve 45(b)(2) - may b served in (a) district of issuing ct, (b) district within 100 miles of place for depot, hearing, trail, production, inspection, (c) within state of issuing ct MUST BE DELIVERED IN PERSON (b)(1) 1- day fees + mileage must be given

Dismissal for Failure to State a Claim (12b6) Cf. to Summary Judgment (Rule 56)
*Its harder to for party bearing burden of proof to get Summary Judgment. Theyll usually have to wait for JMOL after jury deliberates. Rule 12(b)(6) Failure to state a claim no legally sufficient claim Rule 12b6 allows D to dismiss a complaint that does not state a legally sufficient claim. Court doesnt consider other pleadings or evidence, but will assume facts are true in favor of pleader DRASTIC! Because P will not have opportunity to present case to jury OR gather evidence through discovery SO, courts generously allow AMENDMENT (at least once) Does not weed out cases where cause of action is properly alleged, BUT cannot prove it! - A general claim (fewer details) helps you b/c ct cannot make any assumptions.

Rule 56 Motion for Summary Judgment no dispute over MATERIAL facts

Summary judgment is a motion that can be entered into 20 days after the action commences (or after the opposing party motions for SJ) (r56a), and at least 10 days before the trial. It sets for that there are no disputes over material facts, and is used in situations where the P meets the burden set forth by 12b6 (stating a claim) but fails to prove one or more of those elements. A motion should only be approved when the (r56c) material facts are no longer in dispute; rather the dispute is only about the legal implication of these facts. Anderson v Liberty Lobby holds that a judge must take into account the burden of proof in determining the motion: as the Ps BOP rises, the standard cts impose on granting SJ motion by the D decreases. [In this case ] On the other hand, Celotex holds that a party moving for SJ need only show that the opposing party lacks evidence to support its case, whereupon the burden shifts to P to provide evidence to oppose the motion. [ ] Pro: This motion avoids the risk of irrational decision-making by the jury and the delay/expense of trying improvable cases. Cons: Potential judge error in making ultimate decision of whether issues of material fact exists. Decision could come before sufficient discovery, materials used in support of SJ may not be admissible at trial, so the quality of evidence may be lower. Facts are mutually agreed upon, dispute about legal implication. 56(c), (d) Resolve individual claims in a multi-claim lawsuit Judges role: determine only whether parties evidence reveal such a factual dispute, if so, send to jury More difficult to grant for the party w/ burden of proof 56(c): Appropriate only if evidence demonstrates there are no disputed issues of material fact to be tried, and moving party is entitled to judgment on the undisputed facts o 56 (c), 56 (e) Support motion with : affidavits, depositions, answers to interrogatories, admissions, admissible docs. o R.56(f) allows court to grant parties permission to seek more information through discovery o These things dont always have to be admissible at trial. o Partial or full grant ok 56(e): other party has to respond giving evidence why sum judgment should NOT be granted (countervailing evidence).

o o o

Burden of opposing party: simply show he has legally competent evidence on which a jury could resolve the factual issues in his favor. Cannot respond solely with allegations must show proof now However, you can respond by saying that the party w/burden of proof lacks adequate ev. to meet the burden, without pleading evidence of your own Celotex Corp v Catrett showing opposing party lacks evidence sufficient to support its case is enough

The Summary Judgment Trilogy Celotex Corp v Catrett (1986) - the Court held that a party moving for summary judgment need only show that the opposing party lacks evidence sufficient to support its case Anderson v Liberty Lobby, Inc. (1986) Cannot have summary judgment w/out clear and convincing proof. Tells judge to take into account burden of proof. Matsushita Elec. Indus. Co v Zenigh Radio Corp (1986) antitrust case range of plausible inferences that you can draw from facts (similar to Twombly) at the Summary Judgment stage American Airlines v Ulen Ulen sued airline for negligence after suffering injuries in a plane crash. Court granted her motion for summary judgment after answers to interrogatories showed plane was flying too low. Only material fact = damages, they requested to impanel a jury to det. damages. Scott v Harris video of police car hitting car SC granted summary judgment based on video

Motion to dismiss 12b6 56 sum judge Standard for success

50 jmol New trial

Assuming it's all true (in can challenge those factual allegations. the pleading), has the person presented a **you've gone through discovery, have evidence to show valid claim? Effectively, the same as SUM JUDGE. Just looking at the pleadings, De novo. Cannot weigh the credibility Judge has to weigh the jury's verdict against the great weight of the evidence. De novo **abuse of discretion. (standard for appeal much higher)

Judge

Standard of review ON APPEAL Moving party's burdens

De novo

no.. Just based on complaint/amended pleadings

Celotex: you don't need to do anything really, Anderson: at trial, they have to prove clear and convincing evidence, but when moves for sum judgment, court should take into account the nature of the burden of proof at trial! Note: that could make it easier for to get sum judgement if the needs to meet higher burden at trial. Paradox: youre not supposed to weigh evidence Matsushita: not as imp. Really only for antitrust conspiracy claims.

Judgment as a Matter of Law (Directed Verdict) Rule 50

3 ways to resolve a case: 1. 2. 3. 12b(6) dismissal Summary judgment Jury trial No jury trial is OK because there is no genuine issue of material fact for jury to consider. Right to jury trial protected by constitution

2 ways for a judge to control the jurys decision making process: 1. JMOL 2. New trial s burden of production

Between X and Y, judge should NOT take the case from the jury.
Point W. Where there is no proof for PL

Line Xburden of production; after which jury could legit find proved each element

Line Zwhere evidence is equal

Line Y burden of proof; after which reasonable jury HAS to conclude PL proved case

Rule 50 (a)(1)(B): motion for judgment as a matter of law Previously known as directed verdict; new name better b/c : 1. it removes any indication that jury had anything to do with the outcome. 2. Emphasizes judge does not resolve factual matters, just legal judgment that evidence so lopsided no meaningful factual dispute Made by party seeking to have judge take the case from jury on the ground that evidence is too weak to support a verdict TIMING: anytime b4 case submitted to jury. (For renewing motion after trial, <10 days after judgment, <10 days after jury discharged) Rule 50 (a)(1) JMOL standard: no legally sufficient evidentiary basis to find for non moving party

What is legally sufficient?? 3 options:

o o A few states: scintilla of evidence enough to support jury. See Brown v. Turner (AL 1986) Judge looks at ONLY evidence that supports case for nonmoving party, assume truth, take all inferences and enter JMOL only if evidence would not support verdict for non-moving party. See Reeves v. Sanderson Planting Products, inc (US 2000) ; Wilkerson v. McCarthy, US 1949) NOTE: judge may not determine credibility of the witnesses; rather, if jury believed witnesses Rule 50(a) federal standard: Judge considers the nonmoving partys evidence in most favorable light, BUT ALSO, consider any evidence put forward by moving party that is not impeached or contradicted as in considering all the evidence. See Boeing Co. v. Shipman (5th Cir, 1969).

Judgment notwithstanding the verdict =

asking judge to decide differently from what jury came up with b/c the evidence was clearly pointing one way. Not the jurys way. Standard is same as directed verdict. See Chapter 24. = opponents evidence so weak that no reasonable jury could have reached a verdict for him. Asserting that jury acted irrationally. 1991: jnov changed to JMOL Rule 50

(b)

Rationale for allowing JNOV AFTER jury deliberation Frequently appealed. And when appealed, the evidence is debatable, COA may send back for jury trial and then its more efficient to have had the jury trial to fall back on. Rule 50(b) Prerequisites to renewed motion:
Motion must be filed within 10 days of entry of judgment. See Can only move after verdict, if preserved the right by moving before ITS MUST ALSO BE ON THE SAME GROUND AS BEFORE o Silly historical reason: 7th amendment o b/c Rule 50 (a)(2) says party moving for JMOL before verdict needs to state their grounds for concluding not to send to jury, and at that time, the opposing party has a chance to fix any problems (cure the defect). Its to prevent sandbagging the other party by raising defects AFTER jury has been dismissed. Goes back the aspiration of the FRCP to determine suits on the MERITS not on the procedural skills.

Rule 58, 79(a)

Rule 59 New Trial

2 categories where ct traditionally grant new trials: *If new trial is granted, the party winning the first trial cannot appeal until 2 nd trial is over (b/c there was no final

judgment yet) 1. Errors in the trial process a. b/c every litigant has right to due process of law (14 th) b. things like improper admission/ if the losing party MOVES right away, Rule 59 allows judge to vacate and order retrial. If the losing party MOVES and judge denies, party will APPEAL and COA would reverse, and new trial. 2. Judge believes trial process was fair but the result is clearly wrong against the clear weight, overwhelming eight or great weight of the evidence See Goldsmith v. Diamond Shamrock co, (8th Cir, 1985) When it is quite clear that the jury has reached a seriously erroneous result See Lind v. Schenley Ind. (3 rd Cir, 1960) When new trial is necessary to prevent injustice See Whalen v. Roanoke County Board (4 th Cir, 1985) Evidence is strong enough to rationally support jurys verdict but believes verdict is erroneous. *NOW, the judge can weigh the evidence Pros and Cons of a new trial: Judge is acting like a 13th juror, its not as bad as JMOL b/c its still being decided by jury it sucks b/c USC 1291 says grants for new trial may not be appealed b/c there is no final decision at trial level yet! o Note: some state systems allow interlocutory appeal. Different Standards for appellate review: 1. Questions of law: reviewed de novo, from scratch, w/o deference to trial judges decision 2. Questions of Great weight over evidence reviewed w/deference to trial judge rare for appellate to 2 nd guess grant for new trial. FORK: OLD cases show federal courts reluctant to overturn grants for new trial; NEW trend: review them under abuse of discretion standard. Approved by SCOTUS in Gasperini. Rule 50 (c)(1) judges faced with combined motions must rule on both the JMOL (JNOV) and make conditional ruling on alternative new trial so that COA can address both at appeal. Rule 50 (d)

Rule 50 (e)

Res Judicata
Operates to prevent relitigation of claims already litigated and claims that could and should have been litigated. Policy: (based on social policyaims to be functional, rather than pure technicality). Legal System: Ct would waste precious public resources where it doesnt have to, reliability of ct judgments D Not fair to subject Ds to serial suits otherwise judgment would be worth nothing if still subject to suit after winning. P Avoid cutting off potential meritorious claims that have never been litigated

On the merits: w/prejudice, where had leave to amend (ie: 12b6 fail to state claim), full trial on the merits, failure to prosecute Not on the merits: Rule 41 lack of juris, improper venue, failure to join r19 Requirements: Final judgment
-some allow RJ even if on appeal, others wait for it to run

On the merits (Rule 41) - mere dismissal is not a bar, unless notice/order states otherwise Same transaction or occurrence
- if claim didnt exist @time of action, its not the same claim

Same parties/privies *Once a party is joined, all claims must be made against them too or theyre lost (if same transaction) *If a motion was made and denied litigation, it wont be barred later *You cant bind someone not party to Suit 1 Check Does the counterclaim bar apply?
2R25-26 P must assert all claims arising from the same transaction/occurrence, or will lose unasserted part BUT you dont have to join all parties Claim Splitting Sutcliff Storage P brought 4 separate actions on renewed leases against gov to avoid suing in fed ct ct said you cant split those claims (in same district, identical actions), must bring together = preclusive effects Williamson v Columbia Gas OBrian v City of Syracuse Hennepin v Fort Wayne Rinehart v Locke Waterhouse v. Levine 2 actions on 2 diff claims/law 1. conspiracy, 2. tort. Action 2 dismissed for statute of limitations, Judgment on 2 precluded 1. Doesnt matter whats brought first, what finishes first will preclude the other Same underlying transaction same facts, evidence, relief) Initial claim: takings, 2nd: trespass. Different theory, same transaction = Barred P loses on K claim, then 2nd moves to alter K. Barred = should have altered in 1st suit. Dismissal for failure to obey court orders treated as on the merits and given preclusive effect so as not to take teeth out of the sanction Dismissal for prematurity is not judgment on the merits when later rebrought with different facts, its not barred (b/c you dont yet have that claim) Statute of limitations acts as judgment on merits only within same jurisdiction

Counterclaims
Compulsory

(depends on jurisdiction)

According to federal judge-made/common law, compulsory counter claims must be pleaded or else they are lose. Some states dont have compulsory counter-claim laws, and in those jurisdictions, they dont necessarily have to be pleaded. However, regardless, common law can overrule state statutes by barring any counter-claims brought later that would nullify previous judgments (see Menard v Liteway) (2R of Judgments 22). The exception to this is that you wont be required to claim something you could not have asserted in your original claim (see Dindo v Whitney) If court doesnt have rule, it may STILL be barred if conflicts w/judgment in Suit 1 Menard v Liteway Barred despite no court rule b/c counter-claim #2 attacks judgment in Suit 1 Suit 1: LM (unpaid invoices). L wins. Suit 2: ML (didnt reimburse fully for unpaid returns) - Merely an attempt to collaterally attack original jdmt Exception to Counter-Claim Bar No Knowledge Dindo v Whitney P brought personal injury against D in driving accident. Suit 1: settled for certain amount. Then D realized he had counterclaim based on new facts. Suit 2: D brought action against P. D said he had no idea he could have filed it earlier. Ct didnt expend a lot of effort on dismissal (settlement) Whitney didnt demand that Dindo release all claims against him. He should have req. release as a condition of

settlement

Permissive
Permissive claim dont have to be pleaded. Restatement (Second) of Judgments 58 where the defendant does not interpose a counterclaim although he is entitled to do so, he is not precluded thereby from subsequently maintaining an action against the plaintiff on the cause of action which could have been set up as a counterclaim.) - HOWEVER, Preclusion applies when a second claim is related in such a way that if the D prevailed on the claim in the subsequent action, the effect would be to nullify the prior judgment Permissive counterclaim preclusive effect depends on who won Permissive action barred IF Suit 2 directly attacks Suit 1 (Landlord/Tenant fraudulently induced lease signing). D raises as affirmative defense in Suit 1 but now brings separately in Suit 2. Question: Does something in Suit 2 constitute an attack on Suit 1? Schwabe v. Chantilly Holding: Preclusive effect of initial action depends on who won. If P won, D cannot file new claim collateral estoppel (would potentially upset judgment) If D won, D can file new claim (would not upset judgment; no inconsistency)

Privity
Successors in property interest Substantial legal relationship (ie: landowner/tenant = privity when regarding legal right to own land, exception below) People represented by a party in the action ( Taylor v Sturgell Test) (1) Interest of 2 parties aligned (2) Party in Suit 1 really protected later party (3) Absent party knew about Suit 1 (sometimes req. notice) Did the nonparty control the defense of the first suit? Did they have full & fair opportunity? Exception: Showworld landowner owns property, showworld leases one space. City ordinance imposes eviction. Even tho same attorney represented both parties, showworlds interests were different (diff. legal interest) (landowner/tenant rel. not upheld) Neenan bus crash w/driver. Suit 1: driver vs bus, driver wins w/no negl. Suit 2: passenger sues, wins against both. There was no privity b/c interests werent represented. We dont want to shift liability upon an irresponsible person who cared little about a judgment against him. Must give interested party an opportunity to litigate. (no party, no privity, interests not represented) Claim theories 18a: even though may join, RJ means that practically speaking, USE IT OR LOSE IT MUST However, 18a does not bar claims the court could not hear b/c lack of jurisdiction. Claim parties: more generous than claim theories. Claims against additional parties who COULD be joined not barred by RJ. b/c is the master of the claim HOWEVER, the first suit may have some preclusive effect. b/c of C. Estoppel

One suit with joined s

2 separate suits

Collateral Estoppel, aka Issue Preclusion

STEPS (1) 4 basic reqs for mutual estoppel (same issue, litigated/full-fair opp, decided, necessary to judgment) (2) Do exceptions 2R28 apply? (3) K, does it fit non-mutual estoppel?
Equitable Estoppel Inconsistent Prior Conduct (ie: prior lawsuit, or something else) Reliance in ct ---Judicial Estoppel (cant change your story in 2nd trial) Inconsistent Prior Conduct in Judicial Proceeding *dont need reliance just stops you from bringing up diff stories *ie: a position they took (ie: I did this on Thursday jk, on friday) *strictly applied

Mutual Estoppel
Must be same issue (fact/fact+law) Issue must have been litigated (not just raised) Valid & Final Judgment (Valid 8 types) Was there full and fair opportunity to litigate? (Full incentive to litigate?) Judgment must have been decided Was the issues necessary to courts judgment? (otherwise it could not have been appealed) Alternative or Essential determination? - A fact can become preclusive when its the basis for judgment (Cambria) but
Blue Goose v Little Necessary Issues are precluded Action 1:BG sues L and wins (L negligent, BG not contributily negligent). | Action 2: L sues BG. Holding: Precluded bc BGs non-negligence + Ls negligence already decided, & both essential to the judgment (if either changed, outcome different) Jacobson v Miller Cambria v Jeffery Helburn(?) v Schwarz You can raise defenses in later suit various considerations: smallness of amt in controversy, difficulty of getting evidence, expense of litigation, own situation @ the time. Not necessary = no preclusion. A mere fact adjudicated but not found essential to judgment = no preclusion Suit 1 negligence, Suit 2 D (C) sues but the negligence made no determination made no diff so you can use that issue in suit 2. There were alternatives so not precluded

Alternative Determinations (more than one issue could have led to judgment) 1st Restatement (Majority View) - both are preclusive Provides incentive to appeal & reverse one so wont be precluded 2nd Restatement (Minority View) neither is preclusive unless affirmed on appeal - no incentive Essential Determination both barred **You dont have to worry about the alternative det. If the 2 nd hypothetical was exactly the same (also an either determination) Exceptions - Restatement 28 Intervening Change in Law (more likely for business than for individuals corps. live forever) see Moite Party could not have obtained review of judgment in initial suit Substantial Difference in the Court Procedures Not foreseeable that issue would arise in context of subsequent action Heavier burden of proof in initial action, than in later. (procedural differences) Inability to Appeal: winner may not appeal, so is not precluded No fair/full opportunity to litigate Nonmutual offensive estoppel against the U.S. government is not permitted (Mendoza) - Because government is frequent repeat player in litigation so preclusion would be crippling Defensive mutual estoppel still available against the government Where nonparty could have joined in prior action Whether important relationships between parties in first action absent in second Whether preclusion may complicate second action or prejudice another party Public Interest - - Indemnity Exception when 2nd lawsuit would render 1st useless

Spilker v. Hankin: payment to attorney by series of notes. Suit for nonpayment on two notes attorney wins. Second suit for nonpayment as to rest of notes. Court does not preclude issue because fiduciary relationship requires ethical conduct, making relitigation better suited to obtain justice. Use of New Law (only if preserved by appeal) Federated Department Stores v. Moitie, Suit 1: Ps brought price-fixing action against dept stores all dismissed. Suit 2: Another P brought later action based on diff theory, and was barred by res judicata. Suit 1: Ps won in appeal. Can P2 benefit from appeal in Suit 1? No, res judicata we want an end to litigation for public policy **Change in law: If party does not properly preserve its objection to a ruling by appealing TC decision, judgment final/preclusive. But on appeal, ct will apply the law in effect at the time of appeal (new law). Symtec In the same district ct, Rule 41 will govern both cases. It tells you the ability of that ct to govern its own processes. In other districts, Rule 41 will just act as a guide.

Non Mutual Collateral Estoppel aka NMIP

#1 Fair and Full opportunity? (2R29 against nonparties only if f&f) ---- did they have opportunity to appeal Defensive New D precluding past losing party (usually P) from raising litigated point Loser D, D estops Capacity of person suing she was Administrator of estate rep same persons/interests (same P!) Issue already decide? Bernhard v. Bank of America Natl Trust & Savings Assoc.: 1: sues lawyer, loses (gift), 2: sues bank. same fact, same issue, litigated Blonder-Tongue v U.Illinois patent declared invalid (1), sues new P for infringe (2) Full/fair opportunity Issues already decided Offensive- P imposes liability on loser in prior action. P Loser #2 Parklane Test (1: SEC won action against D, 2: NP sues D) 1. Could party have joined in first action? (Dont incentivize wait and see) - here, no b/c had to wait for first trial to resolve 2. Would it be unfair? i. Was it vigorously defended/strong incentive? ii. Inconsistent w/previous judgments? iii. Procedural opportunities in suit 2 not available in suit 1? (Remember, D didnt pick forum earlier)
This is harder to prove allow b/c D (in first suit) didnt choose forum

Restatement of Judgments 27: c. estoppel Party stopped from relitigating an issue he had litigated in a prior suit and lost. Non-mutual issue preclusion:
Allows a new party to invoke IP against a party who litigated and lost on an issue in a prior issue. party must have had full and fair opportunity to litigate issue in first action 2R29 Issues to consider: could nonparty have joined in prior action, was prior determination inconsistent with some other determination of same issue, will it prejudice or complicate 2 nd action? Bernhard v. Bank of America National Trust & Savings Assn. First established NMIP First claim: Mrs. B Cook, claimed funds were part of estate. Second claim: Mrs. B bank, for the funds given to Cook. o Bank claimed IP b/c in Suit 1, issue of who had the right to funds had already been litigated. Claim Preclusion Valid and final judgment On the merits Same or related claim Same parties or their privies Issue Preclusion Valid and final judgment Issue was actually litigated (full and fair opp) Issue was actually determined, and determination was necessary to the judgment Same parties or their privies, but

Judgment before final suits are over Collateral order doctrine: When treating judgment as final even before its reached final stages. (1) claim of rights separate from merits, (2) (2) final judgment (3) unreviewable on appeal of final judgment (ie: incorrect forum, final conclusive determination, immunity) Interlocutory Appeal - Categorical 1292(a): For orders affecting injunctions or orders involving directing sale of property Interlocutory Appeal - Ad hoc 1292(b): A controlling question of law, where there is substantial ground for difference of opinion, whereby the interlocutory appeal would materially advance the ultimate termination of the decision. (AC must approve) (i.e., conflicting decisions in two lower courts, needs decision from appellate court to advance litigation) Rule 54(b): Get final judgment on some claims (just need approval of judge) cts may direct final judgment (R58) Writ of Mandamus when lower ct has overstepped boundaries.. Appeal: 30 days from final judgment to get appeal (starts when final judgment entered under Rule 58), 60 days if involves US. Appeals can make non-precedent opinions on TC judgments. 1291 Final Decision Rule: TC must come to final judgment b4 appeal minimize transaction costs, may prove moot Deadlines to: File a claim: look to SOL Respond to complaint: 21 days after being service complaint/summons (Rule 12a1Ai). (crossclaims is also 21 days 12a1b) OR: 60 days is service is waived. (Rule 12a1Ai) Respond to counter/crossclaim: 20 days. (12a1B) Request a more definite statement: 10 days after notice of order. (12e) Response to request for more definite statement: 10 days (12a4B) Amend a pleading: anytime before responsive pleading is served, or within 20 days after serving the pleading if responsive pleading is not allowed and the action is not on the trial calendar (15a1A-B). OR if opposing party consents or the court's leave (15a2). R16 pretrial conferences: Judge may order ASAP, but must do it within 120 days after defendant served, or 90 days after defendant appeared. (16b2) 26f conference: schedule