1

I. PLEADINGS
1.

Code Pleading
a.
b.

2.

Code pleading used by about 15 states CA and NY included)

Code pleadings must provide ultimate facts addressing each element of the cause of
action to defeat a demurrer (c/l version of 12 (b) (6).
i. Should be just the right amount of facts. Too much detail obfuscates, not
enough isnt fair to the D.
ii. Policy: D needs enough information to constitute adequate notice on how to
defend
iii. Case: People ex rel DOT v Superior Court (mentions only dirt median in a co-a for negligent dangerous condition of public property.)
1. Ct. notes that Judicial Forms not demurrer-proof
2. CT. holds that fact car crossed over dirt median does not provide DOT
with enough information to defend action b/c it does not state the way
in which the dirt median was dangerous (lack of barrier); goes to the
Ds supposedly negligent omission of placing and maintaining a barrier.
3. Policy: fairness, equitability.
iv. Hypo: Which on is just right:
1. On 6/1/06 D was in drivers seat of 2004 Cadillac STS looking
straight ahead and talking to gf Sylvia
2. On 6/1/06 P was injured both physically and mentally by Ds
negligence
3. On 6/1/06 D negligently drove his 2004 Cadillac in such a manner that
it collided with a 1999 Toyota in which P was a passenger. As a result
of Ds negligence P suffered physical and mental injuries.
4. Answer: C. A has too much detail, B too little.
5. Negligently drove his 2004 Cadillac is an ultimate fact.

Federal Notice Pleading

a.

Rule 8 (a) A pleading that states a claim for relief must contain:
i. 8 (a) (1) A short and plain statement of the grounds for the courts
jurisdiction.
ii. 28 U.S.C. 1331: Federal courts have jurisdiction over all civil actions arising
under federal law Constitution, laws or treaties of the U.S.
iii. 28 U.S.C. 1332: Federal courts have jurisdiction over all civil actions where
the amount in controversy exceeds $75,000 AND there is complete diversity
between citizens.
iv. Diversity:
v. Citizenship is established by the state in which a party is domiciled.
vi. It is the citizenship of the parties at the time of the commencing of the lawsuit
that controls.
1. Domicile: Domicile is a place where the party has established:
a. Residence: physical presence
b. Intent to remain indefinitely: Gordon v. Steele (college
student)
i. Intent to remain indefinitely factors: declarations,
voting registration, payment taxes, residence,
workplace, drivers license.
c. Corporations: a corporation is a citizen of any state in which
it has been incorporated and where it has its principal place of
business.
vii. Waiving subject matter jurisdiction: Under 12 (b) you cannot waive SM
jurisdiction. If a court discovers at any point in the process that federal courts
do not have SM jurisdiction, it cannot allow the action to proceed.

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viii. Hypos and Cases:
1. Gordon v Steele: Mormon college student has apartment in Idaho
where she attends college and stated intent not to return home to PA,
partially because there are few Mormon men in PA. On the other hand,
she maintains a bank account in PA, has a PA drivers license, listed PA
as her permanent address in school records (application) and has
returned to PA for summers and holidays. Ct. rules shes a citizen of ID
for purpose of diversity.
2. Binders CA-NV border hypo: DAB rents a one-bedroom apt. in Reno
and works there full time on M, T, TH, F. On W he hikes or skies CA.
On F, Sa, Su nites he rents a room in a guesthouse in CA, where he
works Sa. He intends to continue arrangement for near future. If hes
being sued by NV resident for breach K to rent condo in NV for
$25,000, federal diversity under 28 USC 1332?
a. No, first b/c amount in controversy less than $75,000.
b. No, second b/c spends more nights in NV, works there more
days, pays utilities there, and activities in CA tend to be
recreational.
ix. 8 (a) (2): A short and plain statement of the claim showing that the pleader
is entitled to relief.
1. Purpose: is to notify D of what the claim is so that they can defend
themselves.
2. Requires: all elements of a cause of action
3. How you attack it:
a. 12 (b) (6) claim; failure to state a claim from which relief can
be granted.
b. Rule 11 violation: basically, attorney makes allegations he
cant back up or wont be able to back up.
4. Hypos and Cases:
a. Duncan v AT&T:
i. Claim for c-o-a based on Federal 1981 violation
requires :
1. P is member of racial minority group
2. P applied and was qualified for position
3. Despite qualifications P was not offered
position.
4. ER kept position open and continued to seek
applicants.
ii. Ps claim alleged only third element. Did not allege
that she was racial minority, however this could be
inferred under W&M test, below.
5. Elements missing allegations:
a. Wright and Miller rule: infer from existing allegations that
evidence on missing allegations will be presented.
i. Purpose: avoid wasting time on technical
deficiencies: D can easily figure out what c-o-a is
being alleged.
b. Hypos and Cases:
i. Duncan and AT&T redux:
1. Assume to satisfy 1981 P must allege: 1)
racial minority 2) ER did not give same
treatment as other applicants, 3) because of
Ps race.
2. C-o-a alleges 1) P member of racial minority
2) P applied for position and was qualified

b.

c.

d.

3) D hired other, less qualified people for

position.
3. Can missing element #3 be inferred from
other elements as required to satisfy 8 (a) (2)
under W& M?
4. Yes, because allegations 2&3 can be
combined with allegation 1 to create an
inference that this happened b/c of Ps race.
ii. Missing element hypos, reader pgs 18, 21.
Rule 9 (b): pleading fraud or mistake: special pleading rules
i. Purpose: to give D accused of fraud fair notice of claim and grounds
ii. Particularity: In addition to 8 (a) (2) requirements, claims of fraud and mistake
must state with particularity the circumstances constituting the fraud or mistake.
1. Who, what, where, when: must be alleged.
2. Mental state exception: elements involving mental state may be
alleged generally.
a. Reason: state of mind best known to D.
iii. Cases and Hypos:
1. Stratford v Zurich Co:
a. Insurance company sued for breach K by fraudulent dentist
counterclaims fraud, but doesnt specify when and where
fraud occurred. Ct. dismisses counterclaim but allows leave to
amend. Insurance co. gets it right second time, is granted
summary judgment.
2. Pout hypo, reader pg 40.
Specificity other than fraud:
i. Erickson v. Pardus: US federal court rules prisoner claim conclusory.
1. USSC reverses: No, only Congress can change federal rules.
ii. Bell Atlantic v Twombly:
1. Heightened pleading case?
a. Must plead more than elements.
i. How much more?
1. Facts sufficient to render claim not only
conceivable but plausible.
a. Parallel conduct not sufficient.
b. When might holding apply to other cases?
i. With cases involving complex discovery, like antitrust cases.
ii. Apply Pardus to this standard. Might that case have
involved complex discoveryprison records,
officials, etc?
c. Yep, Twombly is inconsistent with cases such as Pardus.
iii. Dont forget 8 (a) (3): claim must include a demand for relief sought!
iv. Summary On the face vs Beneath the Face:
1. On the face of the complaint:
a. Rule 8 (a) (1)
b. Rule 8 (a) (2)
c. Rule 9 (b)
2. Beneath the face of the complaint:
a. Rule 11
i. 11 (b) 1-3
ii. 11 (c) 1-4
Rule 11: Evidentiary support and reasonable inquiry
i. General: in submitting any paper to the court (pleadings, motion) the attorney
certifies that he/she has conducted an inquiry reasonable under the
circumstances. (exception: discovery)

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1.

Rule 11 (b): That the claims or defenses are warranted by existing law
or a nonfrivolous argument for modifying law.
2. Rule 11 (c): That the factual contentions in the pleading have sufficient
evidentiary support, or will likely have sufficient evidentiary support
after a reasonable opportunity for further investigation or discovery. In
other words, the attorney must do some pre-pleading investigation of
facts.
3. Analyzing a complaint under Rule 11:
a. Does the allegation lack evidentiary support?
b. If not, will the allegation likely have evidentiary support?
c. Was the inquiry into this matter reasonable under the
circumstances?
d. Reasonable inquiry criteria under Rule 11
i. Expense
ii. Relevance
iii. Time frame
iv. Evidence
1. If evidence occurs after the moment of
substantial importance, it is circumstantial.
If before, it is direct.
2. Rule 401, FR Evidence: evidence having
any tendency to make the existence of any
fact more or less probable is admissible.
3. If client has perceived evidence personally,
it is easier to justify relying on their word
(not hearsay).
4. How to attack a pleading or any court document Rule 11: file a
separate motion for sanctions describing the conduct that alleged
violates Rule 11.
5. Sanctions Under Rule 11:
ii. Rule 11 (c): Court may impose sanctions if it finds Rule 11 (b) has been
violated.
1. When sanctions are appropriate:
a. If allegations are not supported by evidence or are not likely to
be so after reasonably discovery.
b. If inquiry was not reasonable under the circumstances.
c. Sanctions must be limited to what suffices to deter repetition
of the conduct. It cant just be fee-shifting.
2. Cases and Hypos:
a. Walker v Norwest: attorney pleads diversity but states facts
tending to show lack of diversity.
b. Christian v Mattel: attorney neglected to check back of
Barbies head for copyright date before filing complaint for
copyright violation.
i. Note: why might you wait to after discovery to file a
motion for summary judgment and then motion for
Rule 11 sanctions?
ii. B/c you want to see the other sides evidence.
Alternative: nasty tactical move to make them spend
as much money as possible.
c. Bridges v Diesel Services:
attorney failed to exhaust
administrative remedies required by law before filing
complaint, but showed remorse. Court also reasons that
dismissal of complaint sufficient to teach a lesson.
d. Hypos:
i. Fred Freeze.

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3.

Defendants Response
a.
b.

c.

d.

A defendants general response is her answer, while she can make specific responses by
motion.
D has 20 days to respond to pleading after being served with summons and complaint. In
responding to a complaint, D has three choices:
i. Do nothing (Default Judgment).
ii. Make pre-answer motion
iii. Answer
Default judgment under Rule 55 (a).
i. Often happens in loan default cases, or if people cant afford an attorney.
ii. If claim is for sum certain or easily computer sum, clerk will enter judgment for
that amount against D who defaulted for not appearing.
iii. In all other cases, judge must enter the default judgment. Steps:
1. Conduct an accounting.
2. Determine damages
3. Establish truth of allegations be evidence
4. Investigate any other matter.
iv. Setting aside a default judgment.
1. Rule 55 (c):
a. A court may set aside a default judgment for good cause or
under 60 (b).
2. Rule 60 (b): Grounds for relief from final judgment, order or
proceeding:
a. Mistake, inadvertence, surprise, or excusable neglect.
b. Newly discovered evidence that could not have reasonably
been discovered in time to move for new trial.
c. Fraud, misrepresentation, or misconduct by opposing party
d. Any other reason that justifies relief
Pre-answer Motions: D can use motions to raise both procedural and substantive
challenges to the complaint.
i. Motion: A written application asking the court to make a specified ruling or
order.
1. Consists of:
a. Notice of motion
b. Declaration
c. Memorandum of points and authorities
ii. Rule 12 (b) motions: A special set of objections that may be made by motion,
including challenges to jurisdiction, venue, and the form of the complaint.
1. Defenses. D make assert following defenses by motion:
a. Lack of subject matter jurisdiction
b. Lack of personal jurisdiction
c. Improper venue
d. Insufficient process
e. Insufficient service of process
f. Failure to state a claim upon which relief can be granted
i. Note: 1-5 do not touch the merits.
ii. Rule 12 (b) (6) motion: failure to state a claim upon
which relief can be granted.
iii. A strategic reason why an attorney might not file a 12
(b) (6) motion even if he suspects Rule 11 sanctions
might be order: to see what evidence the other side
has.
2. Which motions touch the merits of the case: Motions 12 (b) 2-5 do
NOT touch the merits of the case.

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3.

e.

f.

Strategic reasons for motions: 12 (b) motions deal with the content of
the law, not the facts of the case, and thus are strategically important
they can delay or end the lawsuit.
4. Rule 12 (h) Waiving defenses if not motioned: 12 b motions 2-5
MUST be made before responsive pleading or defense waived. 1 and 6
are NOT waivable.
a. What if you forget to claim a defense in your pleading or
answer? (see below, AMENDING PLEADING)
5. Defense motions that can be included in answer. 12 (b) 1-6 can also
be put in the answer.
Answer: the defendants general response to the complaint.
i. Defendant must file an answer within 20 days which admits or denies the
plaintiffs allegations, asserts an affirmative defense, or makes a counterclaim.
1. Admitting, denying or stating lack of sufficient knowledge of Ps
allegations under Rule 8 (b):
a. Rule 8 (b) (1) (b): Party must admit or deny the allegations
asserted against it by an opposing party.
b. Rule 8 (b) (2) Denials-responding to the substance: A
denial must fairly respond to the substance of the allegation.
c. Rule 8 (b) (3): A party that intends in good faith to deny all
the allegations of a pleading may do so by a general denial. A
party that does not intend to deny all the allegations must
either specifically deny designated allegations or generally
deny all those except specifically admitted.
i. Zielinksi v Philly Piers: Dock company denies
forklift accident claim, knowing P doesnt know it
leased forklift to another co. and P has sued wrong
part. Meanwhile, the statue of limitations will expire.
d. Rule 8 (b) (4): A party that intends in good faith to deny only
part of an allegation must admit the part that it true and deny
the rest.
e. Rule 8 (b) (5): States you lack sufficient information or
knowledge to form a belief about the truth of the allegation.
This is treated as a denial. Remember rule 11, however.
i. Examples: Injuries that require medical testimony,
events that D didnt witness. A tire blows up, causing
a car to crash. How can D know what caused tire to
blow at pre-discovery stage?
f. Rule 8 (b) (6): Failure to deny is deemed an admission.
g. Policy:
i. Judicial efficiency
h. Hypo:
i. Reader pg 54 based on Zielinski.
Affirmative defenses:
i. Rule 8 (c) (1): Must be asserted in answer or it is WAIVED. Includes:
1. Statute of limitations
2. Estoppel
3. Res judicata
4. Fraud
5. Contributory negligence
ii. Cases and Hypos:
1. Jones v. Block: Is Ps failure to comply with a statutory requirement an
affirmative defense or an incompletely pleaded claim? Supreme Court
declines to require prisoners filing civil rights claims to prove they have
exhausted administrative options per statute.

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g.

4.

Counterclaims: When filing your answer, you sometimes HAVE to include

counterclaims if they are compulsory:
i. Rule 13 (a) Compulsory counterclaims:
1. Rule 13 (a) (1): a pleading must state as a counterclaim any claim that
that the time of its servicethe pleader has against an opposing
party if the claim:
a. Arises out of the same transaction and occurrence that is the
subject matter of the opposing partys claim, and
b. Does not require adding another part over whom the court
cannot acquire jurisdiction.
i. Example: two parties get in a car accident. P sues for
injuries caused by Ds negligence, if D believes P
was also negligent, D must counterclaim or lose this
claim due to claim preclusion. (res judicata).
ii. Rule 13 (b) Permissive counterclaims: A pleading may state as a counterclaim
against an opposing party any claim that is not compulsory.
iii. Rule 7 (a) (3): An answer to a counterclaim designated as a counterclaim.
1. A counterclaim asks for affirmative relief (as opposed to offering a
defense against the opposing claim)
2. Therefore, replies to counterclaims look a lot like answers: admissions
and denials.

Amending Pleadings
a. Rule 15 (a) (1): A party may amend its pleading once:
i. (a) Before being served with responsive pleading (if pleading was complaint,
answer with counterclaim, cross claim, or third party complaint), or
ii. (b) Within 20 days after serving the pleading if a responsive pleading is not
allowed (eg, if the pleading was an answer) AND action is not yet on trial
calendar.
b. Rule 15 (a) (2): In all other cases, a party may amend its pleading only with the opposing
partys written consent or the courts leave. The court should freely give leave when
justice so requires.
i. General principles: Amender should have good reason for getting it wrong the
first time, and other side shouldnt be hurt too badly by the change.
1. Ways to analyze a motion to amend. Is there:
a. Dilatory motive (trying to stall)
b. undue delay
c. bad faith
d. repeated failure
e. prejudice to the opposing party
f. prejudice to the moving party
g. futility of amendment
ii. Cases and Hypos:
1. Beeck v Aquaslide: D relied on conclusions of three different insurance
companies including its own that it manufactured slide in question that
injured P. During trial, president of company examined slide and
determined it was not made by his company. Meanwhile, statute of
limitations had run.
2. Court rules that lack of bad faith for mistake on Ds part, as well as
prejudice to D (being blamed for injury caused by slide it didnt make)
outweighed prejudice to P.
3. Rule 15 (a) hypo, Reader pg 62
c. Rule 15 (c): Allows some amendments to relate back to the date of the original pleading.
i. Separate from Rule 15 (a): Whether an amendment relates back has nothing to
do with whether the party needs to obtain the courts permission to amend.
Rules 15 (a) and 15 (c) are entirely different questions.

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ii. Rule 15 (c) is important when a party wants to add new claims after the statute
of limitations has expired. In other words, even if you can amend under 15 (a),
amendment to add a time-barred claim would be futile unless it relates back to
the date of the original complaint.
iii. Purpose of Statutes of Limitations and how this purpose relates to 15 (c):
Part of the purpose of statutes of limitation are to prevent forcing a D to defend a
claim long after memories have faded, witnesses have disappeared or died, and
evidence has been destroyed.
iv. When an amendment relates back: An amendment to a complaint relates back
when it asserts a claim that arises out of the conduct, transaction, or
occurrence set out in the original pleading.
1. Notice test: A claim will relate back if the facts set out in the original
complaint are sufficient to put the D on notice that the new (amended)
claim could be brought.
a. Sufficient = whether the adverse party, viewed as a reasonable
and prudent person, ought to have been able to anticipate or
should have anticipated(Wright and Miller)
2. Scope of claim: A claim encompasses more than a single cause of
action or a single legal theoryit encompasses any legal theory.
3. Wright and Miller: 15c reflects the fact that a complaint warns the
defense to collect and preserve evidence on the event or transaction and
to be prepared for any possible legal theory arising from the transaction
or occurrence.
4. Cases and Hypos:
a. Moore v. Baker:
i. P tries to change her c-o-a from violation of informed
consent statute to negligent malpractice.
ii. Court reasons that while original claim focused on
pre-surgery consultations, new cause focuses on
actions during and after surgery. Events therefore
occurred at different times and P would have to prove
completely different sets of facts. Denied.
b. Bonerb v. Richard Caron Foundation:
i. Ct. allows P to change c-o-a from negligence to
counseling malpractice when he fell while playing
basketball as part of a mandatory exercise program at
his rehab clinic.
ii. Ct. reasons that both claims stemmed from the same
incidentthe fall on the basketball court. Thus,
evidence such as witnesses are the same. Ct.
probably allowed under 15 (a) b/c P had gotten a new
attorney who had brought the new claim.
c. Hypos:
i. Rule 15 (c) hypos Reader pg 65
ii. Rule 15 (c) hypo: Price v. XYZ
5.

Injunctions under Rule 65

a. Injunctions are specific relief that can be placed on individuals or companies.
b. They are prohibitive: Dont release film, or stop selling a certain stock.
c. Process:
i. Ask for TRO which is of short duration
ii. Have a hearing on the injunction which is an actual trial
iii. Judge will either grant or not
iv. This is usually the ball game, as the same judge will also preside over the real
trial.
v. Judge writes findings of fact and conclusion of law

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d.

e.

When injunctions are appropriate:

i. P must prove that it is likely to prevail on the merits of the case.
ii. P is being threatened by injury for which there is no adequate legal remedy.
iii. The hardship on the P if relief denied must exceed that on the D if granted.
1. Therefore, the decision whether or not to issue an injunction involves
balancing the harm to the plaintiff and that to the defendant.
Cases and Hypos:
i. Sigma Chemical Co. v. Harris
1. D, an engineer for a P-chemical company, quits his job and goes to
work for a rival company in violation of an agreement he signed. He
also gives new ER trade secrets, also in violation of the agreement. P
asks for injunction.
2. Court rules that fact that P stands to lose 40 years of trade secrets
constitutes an injury for which there is no adequate legal remedy, and
facts that D possessed vast knowledge of trade secrets which constitute
Ps competitive advantage establishes that Ps hardship will outweigh
Ds, particularly when other former EEs of P have found employment
without violating their agreements.

Discovery
6.

Rule 26 (b) Discovery Scope and Limits

a. Discovery refers to the mechanism by which parties obtain information about the case
both from other parties in the case and third parties not in the case. These rules are called
discovery.
i. Interrogatories
1. Up to 25
ii. Depositions
1. Up to 10 (usually negotiated up by parties)
2. Cant last longer than one 7 hour day
3. You can depose an entity, which must designate one person to testify.
a. That persons testimony binding on entire organization.
4. Objections to questions will be held until contents of depo are before
court. Only objections that can prevent a witness from answering
during the depo are ones pertaining to privilege: attorney-client, work
product.
b. Rule 26 (b) (1): General standard stating that a party can discover information relating to
any matter, not privileged, that is relevant to the claim or defense of any party
regardless of whether it is admissible at trial (e.g. hearsay).
i. Privileges. A privilege protects information from being disclosed by a particular
source. The party may still obtain the information from other sources.
1. Common privileges:
a. Self-incrimination
b. Attorney-client
c. Doctor-patient
d. Spousal
2. If claiming privilege, party must make claim expressly and provide a
description of what is being withheld to allow requesting party to
determine if privilege exists. (Rule 26 (b) (5)
3. Privilege can waived either by failing to assert it, or taking an action
inconsistent with itsuch as disclosing privileged info to third party.
a. What if you accidentally provide a privileged document to
opposing party?

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b. Rule 26 (b) (5) (B) and Rule 16 (pg 47 FRCP)
Butler v Rigby
a. D serves medical providers notice of depositions in auto
accident case. Medical providers move for protective order on
grounds, inter alia, that this info protected by doctor-patient
privilege.
b. Court rules that even though evidence was relevant to case
under 26 (b) (1) and not unduly burdensome under 26 (b) (2),
it was protected from discovery under doctor-patient privilege.
ii. Relevance. The most important step to determining whether information is
discoverable is to determine whether it is relevant. Relevance is a low
threshold.
1. Definition. Information is relevant as long as it helps a party prepare
his case. It need not necessarily be information that the party uses at
trial.
2. Relevance to partys claim. Used to be subject matter of action. Now
must be relevant to a claim or defense.
3. Need not be admissible at trial. 26 (b) (1): Relevant information
need not be admissible at trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.
a. Example: Witnesss telephone number
b. Example: Hearsay evidence.
4. Financial information of parties: Only in the matter of punitive
damages (court has to know how much someone is worth since the
amount necessary to punish a defendant depends on the defendants
wealth.
iii. How do you establish the relevancy of your evidence? Say, in preparing for a
deposition?
1. Federal Rule of Evidence 401 Relevant evidence means evidence
having any tendency to make the existence of any fact of consequence
to the determination more or less probable than it would be without the
evidence.
2. Factual Propositions and Evidence: A factual proposition depends on
a moment of substantive importance. Circumstantial evidence is
anything that is not direct evidence on the moment of substantive
importance. All circumstantial evidence relies on the premise. Often
the evidence in a case can cut both ways.
a. What do you want to prove (factual proposition)?
b. What evidence do you want to uncover? What is the answer
you are seeking?
c. How is this relevant to the claim?
Hypos:
i. 7-11 hypo Reader pg 67
1. Factual proposition of Prosecution: Jones robbed 7-11
2. Factual proposition of Defense: Jones did not rob 7-11
3. Sample item of evidence: Jones was in store twice in the month before
the robbery.
4. This evidence tends to make the Prosecutions factual proposition more
likely b/c thieves often case stores before they rob them.
5. This evidence tends to make the Defenses factual proposition more
likely b/c people who rob stores tend not to rob stores they often visit,
because they are more likely to be recognized.
a. Exception: but what about crimes of opportunity/desperation.
b. The more exceptions a factual premise has, the weaker it is.
ii. Sullivan and Cromwell and related hypos:
4.

c.

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1.

2.

Female lawyers who were not hired at law firm sue for sex
discrimination. Ct. denies Ps discovery sought in interrogatories that
examined rate at which firm promoted female associates to partner as
compared with male associates.
Appeal court overrules, reasoning that law firms partnership practices
cannot be said to have no probative bearing on allegations of sexual
discrimination in the hiring of associates.

iii. Hypo:
1. What Ps wanted to prove (their factual proposition): In 1970, S&C
refused to hire female associates because they were women.
2. What was the answer Ps were seeking? Women were not offered
partnerships at the same rate as men in 1975.
3. How is this relevant to the claim? Law firms that do not offer
partnerships to women at the same rate as men in 1975 are often biased
against women. (premises: law firms that promote men over women
often think that women cant work as well as men. Aftrer all, if a
company promotes one class of EEs over another, it is often b/c they
think the ones they havent promoted cant work as well.) And if a law
firm is biased against women in 1975, it will often have been biased
against women in 1970. (Premise: often when an institution holds a
point of view, it held that view at a prior point in time too). And if a law
firm is biased against women in 1970, it often will not hire women as
associates at that time b/c they were women. (Premise: companies that
are biased against a certain class of people often will not hire that class
of people for entry level positions)
iv. Hypo: Price v. XYZ.
v. Dixons potential factual propositions, Reader pg 104
7.

Attorney work product under Rule 26 (b) (3)

a.
b.
c.

d.
e.

f.

General category: a limitation on discovery even of relevant non-privileged information.

Rule 26 (b) (3) or Work Product rule: Covers documents and tangible things
prepared in anticipation of litigation. These things may only be obtained on a showing
of need.
History: Hickman v Taylor:
i. An attorney defending the owners of a tug boat that sank against suits by
representatives of the drowned crew members interviewing survivors and took
statements from them with an eye to the anticipated litigation. A public hearing
was also held at which survivors testimony was taken. A year later, attorneys
for the Ps submitted interrogatories asking whether statements were made and
demanding the statements.
ii. Court ruled that attorney didnt have to turn over the statements as they reflected
the thoughts of the attorney, and they didnt want to interfere with the
adversarial process, and they didnt want the attorney called as a witness. Also,
the Ps had access to the information through the public hearing.
Hickman Rule: Under federal rules, attorney work product is never discoverable unless
the opposing party can show special circumstances such as undue need.
What is never discoverable under Hickman: Rule 26 (b) (3) is actually about what
CAN be obtained on a showing of need. What CANT be obtained UNDER ANY
CIRCUMSTANCES are non-tangible things such as mental impressions by, say, an
attorney or an insurance investigator.
Work product: Rule 26 (b) (3) allows discovery of documents and tangible things that
were otherwise discoverable under 26 (b) (1) that were prepared in anticipation of
litigation by the party or the partys representative.
i. Documents and tangible things.
ii. Must be relevant and not privileged

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8.

iii. In anticipation of litigation

1. Case need not have been filed. Document taken after event from which
litigation arises is protected.
2. Protection does not extend to documents prepared in the ordinary
course of business, such as personnel records or medical records.
a. Differing degrees of on the margin:
i. A general in-house report.
ii. An in-house report to a legal or claims department,
but not necessarily for this litigation.
iii. A report prepared for prior litigation.
iv. Representatives: can be attorney, consultant, surety, indemnitor, insurer, agent
and may include other representatives.
g. When work product can be discovered: A party may discover work product only by
demonstrating that it has 1) substantial need for the information and that 2) the
substantial equivalent of the information cannot be obtained from another source without
undue hardship.
i. How request is made:
1. Interrogatories
2. Depositions
ii. Demonstrating need: Need considers both the importance of the information
and whether the equivalent can be obtained by other means.
1. The information must be important to your case. How is the
information essential to proving your factual proposition?
2. If you obtained info from a primary party, party requesting work
product exception must go to the same source. Substantial cost or a
hostile witness are reasons why the requesting party may be able to get
a work product exception.
a. Example: P goes hiking on Ds land with buddy, injures self.
P sues D. D deposes buddy. P requests Ds notes from the
interview. Likely to be turned down b/c P can go directly to
buddy for info.
b. Example: A witness in a fraud case has moved to Paris. What
arguments can party requesting work product exception that it
would constitute undue hardship to get information directly
from him? What arguments that it wouldnt constitute undue
hardship?
3. Mental Impressions: Under Rule 26 (3) (B), when ordering discovery
of work product, a court is obligated to protect against disclosure of the
mental impressions, conclusions, opinions, or legal theories of the
attorney or other representatives. To the extent that the work product
information reveals these matters, the court will order it turned over
only if there is no other way for the requesting party to obtain the
information.
a. Example: In prior example, say D taped interview with buddy.
In addition, buddy signed written statement. Court should
order disclosure of the statement but not the tape. The tape, in
the selection and order of the questions, may reveal Ds legal
strategies. Once P has the statement, he doesnt need the tape
to discover the buddys info.
4. Hypos:
a. Work product hypos Reader pg 74-5
b. Excising Mental Impressions & Legal Theories Hypo, Reader
pg. 77
Sanctions for non-compliance with discovery:
a. Rule 26 (g):

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b.

i. Features same language as Rule 11 (remember Rule 11 doesnt apply to

discovery)
ii. Discovery cant be to harass, cause undue delay, can be neither unreasonable nor
unduly burdensome nor expensive.
iii. Court can sanction for violations.
Rule 37: comes into play when a party refuses to comply with a court order instructing
him to comply.
i. Have to answer all interrogatories and questions in depositions.
ii. Evasive or incomplete answers are treated as refusals to answer.
iii. 37 (c): if a party fails to provide information, the party is not allowed to use that
information at trial.
iv. 36 (b) sanctions for non-compliance with a court order instructing compliance
include striking pleading, staying proceedings, dismissing action, rendering
default judgment, or contempt of court.

Resolution Without Trial

1.

Default Judgment: A party who fails to respond to a claim can be declared in default and may
have judgment rendered against it. Defaults and default judgments are governed by Rule 55.
There are two stages of default judgment:
a. Entry of default: Rule 55 (a) allows for entry of default whenever a party fails to plead
or otherwise defend against a claim within the prescribed time allowance (20 days).
i. Failure to plead or answer a pleading:
1. Can be Ds failure to answer a pleading or Ps failure to answer a
counter-claim
ii. Otherwise defend.
1. On the merits requirement:
a. 12 (b) motions and summary judgment motions constitute
defense of a claim, since they involve the claims merits.
b. Other motions, such as to transfer venue, probably do not
since they do not touch the merits of the case.
iii. Sanction default: entered by court, not clerk, and plead or otherwise defend
language of Rule 55 (a) doesnt apply.
b. Default judgment: The default judgment may be entered by the clerk or the court.
i. Clerk enters judgment if:
1. claim is for sum certain
2. entry of default was for a partys failure to appear.
ii. Court:
1. If the claim is not for sum certain, court holds a hearing at which
claimaint proves damages or parties contest damages.
c. Challenging default judgments:
i. Rule 55 (c): Court may set aside an entry of default for good cause.
ii. Rule 60 (b): Grounds for relief from a Final Judgment, Order, or Proceeding:
1. Mistake, inadvertence, surprise, or excusable neglect
2. Newly discovered evidence that with reasonable diligence, could not
have been discovered in time to move for a new trial
3. Fraud, misrepresentation, or misconduct by opposing party
4. The judgment is void
5. The judgment has been satisfied, released, or discharged; it is based on
an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable
6. Any other reason that justifies relief.
iii. Rule 60 (b): motion for grounds for relief must be filed within one year after
judgment. After that, Rule 60 (d) (1) offers possibility of independent action
to relieve a party from a judgment, order, or proceeding.

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d.

2.

3.

Cases, Hypos:
i. Peralta v Medical Heights
1. D sought to set aside default judgment on grounds that there was nullity
of service; trial court ruled that he must show a meritorious defense
before it set aside judgment (in other words, he needed to show that he
had been harmed by default judgment).
2. Supreme Court rules that a default judgment cannot be sustained
against a D who was not properly served on the basis that he was not
harmed. This violates the Due Process clause of the U.S. Constitution.
Dismissals
a. Involuntary: Defendants counterpart to the default judgment. Court dismisses Ps
action because P is not active or as a sanction. Governed by Rule 41 (b)
i. Two reasons court may involuntarily dismiss an action:
1. Failure to prosecute
2. Failure to comply with rules or court order
ii. Effect of dismissal:
1. If it is an adjudication on the merits, the P cannot sue again on the
basis of claim preclusion (res judicata). Cannot bring the same claim if
it grows out of the same transaction or occurrence.
2. RULE: An involuntary dismissal operates as an adjudication on the
merits unless one of the following is true:
a. The court dismisses for lack of subject matter jurisdiction,
personal jurisdiction, or failure to join a necessary party.
b. The court specifies that the dismissal is not on the merits.
b. Voluntary: Governed by Rule 41 (a). A party may dismiss an action without a court
order by filing:
i. A notice of dismissal before the opposing party serves either an answer or
motions for summary judgment.
ii. A stipulation of dismissal signed by all parties who have appeared (for instance
if theres a settlement).
iii. Ordinarily dismissals are without prejudice. However, if P previously dismissed
any action in any court based on the same claim, the dismissal serves as an
adjudication on the merits and P cannot refile on the basis of res judicata.

Summary Judgment
a.

b.

General: a way to resolve a case before trial. Summary judgment gives the court a
limited ability to look past the pleadings to the actual facts that each side has marshaled to
support its case. The governing rule is Rule 56.
i. Different from Judgment as a matter of law under Rule 50, which occurs
during the trial. Summary judgment motion must be made before trial
commences.
Procedure: A party requests a summary judgment by filing a motion. A party can seek
summary judgment on all claims, or just some claims.
i. Both parties can move for summary judgment, but the paradigm case is that the
D moves for summary judgment against the P, or the P moves against the D on
an affirmative defense.
1. Key question: which party has the burden of proof? Think of parties
as movants and respondents.
a. Times when the defendant might have the burden of proof.
i. Affirmative defenses
1. Statute frauds
2. Contributory negligence
3. Counterclaims
2. Burden of production: the need for a claimant to produce some
evidence on every element of the claim, enough to establish an issue of
material fact.

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c.

Standard for summary judgment: Rule 56 (c) requires that the defendant show that
there is no genuine issue of material fact.
i. A material fact is an element of a cause of action stated as a factual
proposition. Must have within it a moment of substantive importance.
1. Example: Breach K
a. Existence of valid contractD signed promissory note
ii. A genuine issue is an issue of fact that a jury could decide one way or
another.
iii. Generally normative issues such as negligence are considered particularly
appropriate for juries.
iv. Generally, inferences are considered a matter for the jury. However, in some
situations the inference is simply too improbable or far-fetched to be allowed.
1. Houchens: Ps husband died on a trip to Thailand, and was eventually
declared legally dead. P sued when her husbands insurance companies
refused to pay. Ds defended on grounds that contracts required that
death be accidental. Court ruled that there was insufficient evidence
allowing one to infer from the legal presumption that husband had died
accidentally.
v. Defendants duty: defendant has initial duty to demonstrate to the court an
absence of genuine issue of fact. It may:
1. Submit affirmative evidence that negates an essential element of the
plaintiffs claim.
2. Demonstrate to the court that the plaintiffs evidence is insufficient
to establish an essential element of the plaintiffs claim.
a. Celotex: Defendant need not offer proof that negates
plaintiffs case. It need only show that plaintiff has failed to
meet burden of production.
i. Ps factual contention was that her husband had been
injured by working with defendants asbestos
product.
ii. Court ruled that summary judgment was proper
because P failed to produce evidence that any
Celotex product was the proximate cause of the
injuries alleged.
b. Bias v Advantage Intl Inc: to establish a genuine issue of
material fact, evidence offered by respondent party must rebut
evidence offered by movant, not just offer affirmative
evidence.
i. P sues sports manager for losses stemming from
misrepresentation re: a life insurance contract. D
moves summary judgment based on testimony that
that decedent was drug user and no insurance
company will insure a drug user, thus no causation. P
presents testimony from decedents coach and family
that he wasnt drug user.
ii. Court rules that non-moving party failed to establish
a genuine issue of material fact because its evidence
did not impeach the drug use testimony and
decedents coach and family werent present at
specific circumstances where he was said to be using
cocaine.
3. Hypos: Re: Which Initial Option is the Moving Party Employing.
vi. Materials under 56 (e):
1. A supporting or opposing affidavit must be made on:
a. Personal knowledge
b. Set out on facts admissible in evidence

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c.
d.

d.

Show that affiant is competent to testify on matters stated.

Hypos:
i. Celotex relies on affidavit from decedents coworker
saying that when they worked together they never
used Celotex asbestos.
1. How can he remember after all this time?
2. Is he an expert on recognizing that product?
3. Was he working with decendent all the time?
ii. Dixon relies on an affidavit from Bezinis secretary
saying Borlund often told Bezini that FF was not sure
it could obtain financing.
1. Doesnt show she was competent to testify
b/c it doesnt affirmatively show she was in
a position to hear such things. What were
the circumstances?
2. If paper is referred to in affidavit, copy must be included with affidavit.
Affidavits may be supplemented by depositions, answers to
interrogatories, or additional affidavits.
3. Always analyze an affidavit supporting or opposing a motion for
summary judgment under 56 (e) first.
vii. Summary of possible stumbling blocks for the defendant:
1. The defendant moving for summary judgment against a party with the
burden of proof at trial may not be able to satisfy its initial burden in at
least one of the following four circumstances.
a. The credibility of the defendants affiant shown to be an issue
b. The defendant presents an affidavit based on the testimony of
a central player about his/her state of mind on a central issue.
c. The defendant tries to satisfy its initial burden through weak
circumstantial evidence.
d. The defendants affidavit fails to comply with 56 (e).
viii. Summary of possible stumbling blocks for the plaintiff.
1. When responding to a motion for summary judgment, a plaintiff may
fail to satisfy the burden to produce enough evidence to show there is a
genuine issue re: a material element if the responding partys response
affidavit (s) do one or more of the following:
a. Fail to satisfy 56 (e).
b. Present only a scintilla of evidence.
c. Indicate the credibility of the plaintiffs affiant is an issue.
d. Attempt to revoke a prior admission.
ix. Hypos:
1. scintilla of evidence
a. In negligence case for speeding, D was twenty minutes late for
meeting, therefore he was speeding.
i. Too many exceptions to inference that people who
are late to meetings speed.
2. Moving partys Initial Burden and Credibility
3. Failure to carry initial burden and state of mind
When plaintiff moves for summary judgment, his evidence must be substantial on every
element of the claim. Summary judgment for plaintiff is rarely granted because even if
the D presented no evidence, the jury might still decide not to believe any of Ps
evidence. Plaintiffs evidence must still comply with 56 (e).

Judgment as a matter of law

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1.

2.

3.

General: When it is clear from the evidence that one side should prevail, the judge may take the
case from the jury by entering judgment as a matter of law.
a. It used to be that if this entered before the verdict, it was caused a directed verdict.
b. If it was entered after the verdict, it was called judgment notwithstanding the verdict or
JNOV.
Rule 50 (a): If a party has been fully heard on an issue during a jury trial and the court finds that a
reasonable jury would not have had a legally sufficient evidentiary basis to find for the party on
that issue. In the case of JNOV, it is if the jury has made its determination against the weight of
the evidence. You have to file the motion after the verdict, at which time the court will allow
judgment on the verdict, order a new trial, or direct entry of judgment as a matter of law.
Reasonable jury
a. Credibility: normally credibility is left to the jury, unless witnesss tale is inconsistent or
completely contradicted by testimony of other witnesses.
i. Pennsylvania RR v Chamberlain.
1. Plaintiffs eyewitnesss testimony directly on point, but court rules it
was impossible to believe given the distance and angle from which the
witness viewed the event, especially when a number of other witnesses
contradicted him.
b. Inferences and burden of production: the same issues as summary judgment, in that in
cases of competing inferences, if both are of same strength, then party without the burden
of production by necessity wins.
i. Reid v San Pedro, LA and SL RR.
1. P sued RR when her cow was killed on RR tracks. The cow could have
gotten onto the tracks either from an open gate (therefore P would bear
loss) or a break in the fence (RR would bear loss). The cow was closer
to the gate than the break. Court rules that b/c inference that cow came
through gate was just as if not more likely than that it came through
break, P had burden of production and therefore had failed to provide
sufficient evidence.

Pre-Trial Conferences:
1.

Under Rule 16, the final pre-trial conference sweeps away the pleadings and governs
everything in the upcoming trial.
a. Note that Rule 15 (c) still allows the relation back of amendments, if the plaintiff wants to
change theories but runs up against a statute of limitations.
b. A court has broad discretion to hold the parties to the trial plan decided upon in the pretrail conference. This can only be modified to prevent manifest injustice.
c. McKey v Fairbairn
i. In a negligence suit against a landlord, the tenants attorney moved to introduce
housing regulations as evidence, but the court denied the motions b/c the
regulations were not contained in the pre-trial conference.

Jurors and Voir Dire

2.
3.

4.

Jurors must be drawn from a fair cross-section of the community. This allows their ruling to have
a normative effect.
Attorneys may exclude prospective jurors by exercising two types of challenges.
a. Challenge for cause: may be for bias toward one of the parties or subject matter, or who
has too much prior knowledge of the facts. There is no limit to the number of challenges
for cause.
b. Preemptory challenge: for reasons that might not satisfy challenge by cause. A reason
does not have to be stated. There is a limit usually three.
Thompson v Altheimer & Gray: In a case involving racial discriminations, a small business owner
in the jury pool stated a sincere belief, due to her prior experience, that people sometimes filed

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spurious claims against their employers. The court held that the expression of a sincere belief
does not of itself establish bias. The next step must be taken, to question whether the belief would
impair the jurors judgment. Since the trial court did not take this step, reversed.

Respect for Judgments

Claim preclusion (res judicata): prevents parties from raising certain claims that
were litigated or should have been litigated in the first action.
1.
2.

3.

4.

5.
6.

Overall Purposes: to impel parties to consolidate all closely related matters into one suit for
judicial efficiency, and to ensure consistency in judgments.
Basic elements:
a. Same parties
b. Same claims
c. Final judgment
d. On the merits
Parties: if parties are in privity and one is bound by a judgment, claim preclusion binds both
parties.
a. Privity exists when the parties are litigating the exact same legal right.
b. Searle v Searle:
i. Wife sues husband for divorce. In dividing martial property, husband claimed
he owned piece of property jointly with a partnership. Partnerships consisted of
husband and two sons. Court awarded property to wife. Partnership then sued
to protect its half interest in the property. Wife claimed claim preclusion on
basis that partnership was in privity with husband.
ii. Court ruled that since husband and partnership owned the property jointly, they
did not have the exact same legal right (mutual or successive interest) regarding
the property.
Claims: Claims are identical where evidence necessary to sustain a second verdict would sustain
the first; where the causes of action are based on a common core of operative facts.
a. Standard only satisfied if claims share some of the same relevant evidence.
b. Restatement (Second):
i. When a valid and final judgment rendered in an action extinguishes a plaintiffs
claimthe claim extinguished all rights of the plaintiff to remedies against the
defendant with respect to all or any part of the transaction, or series of
connected transactions, out of which the claim arose.
ii. What factual grouping constitutes a transaction and what groupings constitute
a series are to be determined pragmatically, giving weight to such
considerations as whether the facts are related in time, space, origin, or
motivation, whether they form a convenient trial unit, and whether their
treatment as a unit conforms with the parties expectations or business
understanding or usage.
c. In installment contracts, each installment is considered a separate transaction.
d. Barring defenses:
i. Rule 13 (a) requires that any claim arising from the same transaction or
occurrence as the original claim must be a compulsory counterclaim. (but
make sure the party actually filed a pleading in the prior action.)
Final Judgment: A final judgment is one that completely wraps up the matter in question, leaving
the trial court with nothing more to do. In most jurisdictions, a judgment has claim preclusion
effect even if it is currently on appeal.
On the merits: Claim preclusion bars all claims arising from the same core of facts. Claim
preclusion only applies if the court actually resolved one or more claims involving those facts.
a. Consistency: the logical implications of the former judgment
i. RULE: Where there is a final judgment on the merits, res judicata acts to
bar subsequent actions based on the same transaction.
1. 12 (b) (6) dismissal: on the merits

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

8.

A consent decree acts as a judgment on the merits.

Judgment after trial and summary judgment is on the merits
Dismissal for lack of jurisdiction is not on the merits
Statute of limitations: not on the merits
Under 41 (a) and 41 (b), voluntary and involuntary dismissals act as
adjudication on the merits.
Martino v MacDonalds:
a. P sued by MacDonalds for breach K; he settles and court
enters consent judgment in which P acknowledges validity of
Macs contract. P then reconsidered and sued MacDonalds on
anti-trust grounds. MacDonalds defended by asserting under
Rule 13 (a) P had to assert this claim as a compulsory
counterclaim.
b. Court rules in dicta that Rule 13a doesnt apply because P
never filed a pleading or answer. However, court rules that res
judicata bars second suit on grounds that it would be
inconsistent with first judgment affirming validity of
MacDonalds contractcourt would now be saying the
opposite and consistency in judgments must be upheld.
Federal courts must give preclusive effect to state court judgments
if that judgment would preclude claims under the laws of the state.
a. Gargallo v Merrill Lynch
i. Disgruntled investor files suit against broker for
violations of federal securities law after broker sued
him for collection of debt. State court dismisses
counterclaim with prejudice for noncompliance with
discovery. Investor then files suit in federal court.
Does federal court have to apply state claim
preclusion law in deciding whether a prior state court
judgment has preclusive effect in the case at hand?
ii. Court reasons yes. Court then determines that state
court lacked jurisdiction over subject matter of
counterclaim because it arose under federal law.
Court further determines that under Ohio state law, a
judgment from a court lacking subject matter
jurisdiction is not on the merits and therefore does
not have preclusive effect.

Issue Preclusion (collateral estoppel): prevents parties from relitigating certain

issues that were actually litigated in the first case.
1.
2.

3.
4.

5.

Even when a party can bring a claim (passes res judicata test) certain issues relevant to that claim
may be controlled by the outcome of prior litigation.
Issue preclusion:
a. Same issue
b. Actually litigated
c. Actually decided
d. Issue was necessary to the decision
e. Party precluded had opportunity and incentive to litigate
Exception to litigated requirement: jurisdiction.
Same issue:
a. Burden of persuasion: if an issue is litigated in criminal court, it can then be litigated in
civil court because the burdens of persuasion are different: beyond a reasonable doubt
vs preponderance of the evidence. Note, however, that issue cannot move the other
way.
Actually litigated:

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6.

7.

8.

a. Default judgments and dismissals do not have any issue preclusion effect.
Actually decided: Usually most difficult issue.
a. Have to analyze the first decision:
i. If the fact had to have been decided in a particular way for the court to reach its
result, issue preclusion will apply.
ii. If the court could reach the decision in two or more different ways, issue
preclusion will not apply.
iii. Ilinois Central Gulf RR v Parks:
1. P and wife injured at RR crossing. P and wife sue, wife for injuries, P
for loss consortium. Wife wins, but P loses. P then brings suit for his
own injuries. RR claims issue preclusion, claiming that P lost b/c court
held he was contributorily negligent, therefore this issue is precluded
and he cannot recover damages b/c contrib. negligence has been
established.
2. Court rules otherwise, reasoning that P may have lost first decision b/c
he could not prove damages for loss consortium, not because he was
found contributorily negligent. Therefore, contributory negligence has
not actually been decided, and P is free to go forward with his suit.
3. Hypo: P sues D for breach of K for not paying an installment on a
promissory note. P prevails. P then sues D at a later date for the entire
promissory note. D precluded from challenging the validity of the
promissory note since this issue was litigated and was actually decided.
Necessary to the judgment: comes up whenever a judgment explicitly sets out alternate bases
for the holding.
a. Courts are split: some allow alternative holdings to have issue preclusive effect. Others
do not.
b. Independent grounds rule: A case dismissed in federal court for following reason is taken
up in state court. Outcome?
i. Subject matter: not precluded
ii. Personal jurisdiction: precluded
iii. Subject matter and personal jurisdiction cited as alternate holdings: No, we dont
know on which the decision was based.
iv. Subject matter jurisdiction affirmed on appeal: not precluded
v. Subject matter jurisdiction and personal jurisdiction affirmed on appeal:
precluded. After appeal its assumed both issues have been fully considered.
Parties precluded had opportunity and incentive to litigate:
a. Defensive issue preclusion: used by a party defending on a claim in the second suit.
i. D2 takes advantage of judgment earned by D1
ii. Plaintiff gets his day in court and losesdoesnt get another chance
1. Example: P sues child for negligence, loses. P then sues parents of
child on same facts and issue.
b. Offensive issue preclusion: used by a party trying to recover on a claim in the second
suit.
i. To prevent free riding and inconsistent judgments, courts will apply the
following criteria to limit offensive issue preclusion:
1. Could P2 have easily intervened in suit #1?
2. Did D have full incentive to defend suit by P1?
3. Does D have available procedural opportunities in suit by P2 that
were not available to D in suit by P1?
a. Prior court may not have allowed full scale discovery.
4. Is there a problem with inconsistent prior judgments?
a. If D has won some and lost some issue preclusion will not
apply.
ii. Parklane Hosiery Co. v Shore
1. P brought a class action suit against the defendant in wake of an SEC
action that resulted in declaratory judgment against defendant. P then

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2.

3.

moved for summary judgment, using offensive issue preclusion to

claim that D was estopped from litigating same issues that were
resolved in SEC action.
Court allows issue preclusion, applying above standards and reasoning
that P could not have joined with suit by SEC since SEC is regulatory
agency, and that D had full incentive to defend suit against SEC due to
the seriousness of the charges and the fact that shareholder often sue in
the wake of an SEC decision.
Parklane was a rule change decision that overturned the mutuality
requirement: that parties be the same.

Personal Jurisdiction
1.

2.

3.

4.

5.

Personal jurisdiction concerns the question of whether a court in one state has the power to enter a
valid judgment against a citizen of another state. Whether the court has this power is decided
under the Due Process clause of the Constitution. In turn, this is decided by decisions of the U.S.
Supreme Court interpreting that clause of the Constitution.
Two kinds of personal jurisdiction:
a. In personam: jurisdiction in personam is jurisdiction over the defendant herself.
i. Jurisdiction obtained by serving the person with process
b. In rem: jurisdiction in rem is jurisdiction over a particular item of property owned by a
person.
i. Jurisdiction obtained by seizing the property
ii. Quasi in rem jurisdiction is when you attach land to initiate an action that has
nothing to do with the land.
Pennoyer v Neff
a. Neff (P) sought to recover possession of land which had been seized and sold off to pay
for a default judgment against him, claiming that the judgment was invalid as the court
involved had not had personal jurisdiction over him.
b. Court rules for P, reasoning that every state possesses exclusive jurisdiction and
sovereignty over persons and property within its territory, therefore, the courts of the state
may enter a binding judgment against a non-resident only if he is personally served with
process while within the state, or if he has property within the state, if that property is
attached before the litigation begins.
What do you do if you get served with process for a suit in another state and you think the
state doesnt have jurisdiction?
a. Special appearance: allows you to object to jurisdiction without the objection itself being
basis for jurisdiction
b. Jurisdiction may also be challenged by:
i. Pre-answer motion 12 (b) (2)
1. Must join motions; cannot make a 12 (b) (6) motion and then a 12 (b)
(2) motion.
ii. Answer if there hasnt been a pre-answer motion.
iii. If jurisdiction is not challenged in either a pre-answer motion or an answer
pleading, it is waived.
Minimum Contacts: jurisdiction is proper over defendant who has certain minimum contacts
with the state such that maintenance of the suit does not offend traditional notions of fair play
and justice.
a. Specific jurisdiction: single act or continuous but limited contact
i. Claim must arise from contact
b. General jurisdiction: substantial or pervasive contacts
i. Claim need not arise from contact
ii. Example: General Motors, or a cigarette company being sued in any state.
c. International Shoe Co. v Washington:
i. State of Washington attempted to levy unemployment tax on defendant, a
corporation that employed salesmen in the state that did not enter into contracts,

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6.

7.

8.

9.

10.

11.
12.
13.

but merely sent order to home office. When defendant did not pay, state sued it
in Washington.
ii. Court reasoned that state of Washington had personal jurisdiction: defendant had
sufficient contact with the state, and claim arose out of those contacts.
Contact can be a single act provided that act is what gave rise to the claim and it was
purposefully directed toward the state.
a. McGee v Intl Life Insurance Company
i. P, beneficiary of life insurance policy, sues in CA for breach of contract when a
Texas life insurance co. refuses to pay. Texas court refuses to enforce judgment
for P obtained in CA on grounds that CA never had personal jurisdiction over
life insurance co.
ii. Court rules for P, reasoning that defendant knowingly held a life insurance
policy in CA and communicated with the holder there.
Minimum contacts also applies to in rem jurisdiction in cases where the action does not arise
from the property. This is the Shaffer v Heitner ruling, which essentially prevents the use of
quasi in rem jurisdiction where property is the only contact and the action has nothing to do
with the property.
A connection counts as a contact only if a defendant has purposefully directed an act at the
forum state.
a. WW Volkswagon Corp. v Woodson
i. NY resident purchase auto in NY. Purchaser was then injured in Oklahoma
while driving to Arizona. Purchaser sued the NY dealer and the manufacturer in
Oklahoma.
ii. Majority court rules that the dealer did not have contact with Oklahoma since
while it might have foreseen that someone would drive one of their autos there,
they did not direct any act toward Oklahoma to establish minimum contacts.
Minority (Brennan): It should be enough that defendant knew that its product
could be taken in Oklahoma; interests of forum state are important here as well
as burden on defendant.
Application of minimum contacts test:
a. First determine if contact exists.
i. Claim must arise from contact
ii. personal availment of the privilege of conducting activities within the forum
state.
b. Second, apply the fairness factors:
i. Burden on the defendant
ii. Interest of the plaintiff in obtaining convenient and effective relief
iii. Interests of forum state
iv. Intestate judicial system in obtaining the most efficient resolution of
controversies
v. Shared interests of several states in furthering fundamental substantive policies
c. Finally, consider whether there was reasonable notice:
i. Of the actual litigation
ii. Prior notice that may be haled into court.
Lack of fairness rarely defeats jurisdiction:
a. Exception: Asahi v Superior Court, where burden on defendant due to language and legal
system differences overcame the contacts that existed. Morever, forum state had no great
interest in an action between Taiwanese and Japanese companies.
Burden on the defendant:
a. Travel
b. Any other circumstances that would make defending in the forum difficult (Asahi)
Interest of the plaintiff
a. Witnesses, evidence in forum state
b. Plaintiff from forum
Interests of forum state
a. Maintaining safety or laws (safety of OK highways in WW VW)

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b. Defending its citizens
14. Applying the minimum contacts test to contracts:
a. Merely entering into a contract with a resident of a forum is insufficient.
b. However, if a contract is negotiated or to be performed in the forum, that is evidence the
parties have purposefully availed themselves of forum.
c. Burger King Corp. v Rudzewicz
i. MI resident enters into a franchise agreement with BK, based in FL. When
agreement soured, BK sued in FL.
ii. Court held that b/c franchisee knew he was negotiating with a FL corporation
and made payments to FL office, meaning performance took place in FL. Thus
he had purposefully availed himself of FL.
15. Stream of commerce cases:
a. Stream of commerce: when a defendant distributes its goods nationally through a third
party. Although the defendant has knowledge that its goods go to a particular state, it
does not know exactly where, nor particularly care.
b. Does purposefully injecting goods into the stream of commerce constitute purposeful
availment?
c. Supreme Court split
i. OConnor: mere awareness is insufficient. D must also purposefully direct acts
at forum state, like advertising or designing product for specific needs of forum.
ii. White: mere awareness is enough to qualify as a contact.
16. Internet cases:
a. Can someone who views a web site sue the person who operates the site in the viewers
home state?
b. Depends on type of web site:
i. Passive: one that can be viewed but the viewer cannot submit information.
ii. Active: one where the viewer may input information and enter into a transaction.
iii. Interactive: somewhere in between. Viewer can enter information but not enter
into a transaction.
c. Rules:
i. Passive: no jurisdiction
ii. Active: jurisdiction as active site constitutes a contact
iii. Interactive: courts look to the circumstances, including level of activity and
whether site is commercial.
17. Served while present. A state has jurisdiction over any defendant who was served while present
in the state. Only exception is if presence is not voluntary.
a. Burnham v Superior Court
i. D served while present in state on matter unrelated to the plaintiffs claim.
ii. Divided Supreme Court rules that under Pennoyer, state can exercise personal
jurisdiction over a defendant who is physically present in that state. Thus, the
minimum contacts rule doesnt even come into it.
18. Party can consent to personal jurisdiction:
a. Express consent
i. Forum selection clause. Whether or not these are enforceable is a matter of state
law.
b. Implied consent
i. Waiving under FRCP.

More subject matter jurisdiction

1.

For a claim to arise under federal law, the complaint must show that the cause of action
arises under federal law. Its not enough for an anticipated defense to involve federal law.
a. Louisville RR v Mottley
b. P sought to enforce contract for free lifetime RR passes after a federal statute banned free
lifetime passes. P claimed breach of K in federal court, but anticipated defense involving
federal statute by declaring it unconstitutional.

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c.

Court ruled no subject matter jurisdiction as the plaintiffs federal question must appear
in the complaint, not in anticipated defenses.

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