I.

The values of procedure

A.
Introduction
1.
Core theme of course: Substance is largely determined by procedure.
Law is not reason alone. Its reason infused with a concern for values.
2.
Taylor Hess: Expelled for having an innocent knife at school; settled
before appeal hearing (mandatory expulsion otherwise). Illustrates:
a.
Dispute resolution v. public norms models of litigation
b.
Common-sense v. strict fidelity to statutory law
c.
Convenience v. inclusiveness
d.
Lawyers shape outcomes
e.
Procedure shapes outcomes
f.
Importance of having fair procedures
3.
System must treat lawyers choices as clients choices. No way to
resolve this without disadvantaging someone (P, D, or other litigants).
4.
Ways of regulating society: civil law, criminal law, and agency regulation.
B.
Financing litigation
1.
American rule: pay your own way; British rule: loser pays other sides
fees/expenses.
2.
Views of contingent fees: antisocial, insurance, credit system, partnership
b/t lawyer and client.
3.
Common fund theory: Plaintiffs lawsuit must involve some fund from
which attorney fees can be deducted. It shares fees among members of
a class rather than shifting them to another party.
4.
Fee waivers
a.
Civil Rights Act 1983: Can sue any person who under color of
law deprives your rights created by federal law.
b.
Civil Rights Act 1988(b): In an action involving the enforcement
of civil rights, the court may allow the prevailing party (other than
the U.S.) reasonable attorneys fees as part of costs.
i.
Christianburg Garment Co. v. EEOC: May is really
must. (Legislative history.)
c.
Evans v. Jeff D. (US 1986)
i.
Settlement in class lawsuit; no attorney fees; relief much
greater than what would have been at trial.
ii.
Stevens: Fees Act gives plaintiffs another bargaining chip
in the litigation process, so fee waivers should be allowed.
iii.
Brennan (dissenting): Fee waivers will dry up the pool of
attorneys available for poor litigants in civil rights suits.
iv.
More dispute resolution v. public norms.
d.
Buckhannon Board and Care Home, Inc. v. West Virginia
Department of Health and Human Resources (US 2001)
i.
State made legislative changes that rendered Ps suit
moot. P (catalyst theory) argued that it was entitled to
attorneys fees because it was the prevailing party.
ii.
Rehnquist: Not entitled to fees. Prevailing party means
someone who has had a judgment rendered in his favor,
including a consent decree.
iii.
Ginsburg (dissenting): Pro-catalyst theory.
iv.
Under this rule, marginal defendants are more likely to be
sued than extreme ones because the latter ones are more
likely to give in once theyve been sued.
1

e.

C.

Rule 68: If a defendant makes a settlement offer that plaintiff

rejects and plaintiff is awarded a judgment not exceeding the
value of the settlement offer, then the plaintiff is required to pay
defendants post-offer costs. Normally, attorneys fees are not
included.
i.
Marek v. Chesney (US 1985): Whether attorneys fees are
included in these cases depends on the statute under
which attorneys fees are demanded.

Remedies
1.
Legal remedies
a.
Damages
i.
Compensatory: Compensate P for money he has lost or
has had to pay.
ii.
Liquidated: Agreed to by contract.
iii.
Statutory: Specified by statute.
iv.
Punitive: Intended to punish the D.
b.
Replevin: Return something wrongfully taken.
c.
Ejectment: Remove someone from land he does not own.
d.
Extraordinary writs: Do not come with right to jury trial (since
theyre granted by appellate courts)
i.
Habeas corpus: Commands jailor to produce body of
prisoner to court.
ii.
Mandamus: Order to lower court or public official to take
particular action.
2.
Equitable remedies
a.
Injunction
b.
Specific performance: Require contract breacher to perform what
he promised.
c.
Reformation, cancellation, or rescission: Alteration of contract to
correct mistake or obvious injustice.
d.
Accounting: Resolve who owes what to whom.
e.
Quiet title: Resolve disputes as to the title to property.
f.
Constructive trust: Remedy to unjust enrichment. Wrongdoer
becomes constructive trustee and required to turn over, e.g., funds
and whatever profits he makes from them.
3.
Remedial hierarchy: In order to seek equitable remedies, must
demonstrate that legal remedies are inadequate. Easier to demonstrate
this if its a public case rather than just a private dispute. (E.g., Sigma
Chemical Co. v. Harris to protect restrictive covenant, permanent
injunctive relief was necessary (to protect trade secrets)).
4.
Declaratory judgments
a.
2201: To declare rights or other legal relations. Final, reviewable
judgment.
b.
Rule 57
i.
May be tried by jury.
ii.
May be obtained even if other remedies are available.
5.
Provisional relief and due process
a.
The idea is to preserve the status quo to minimize harm.
b.
Brown v. Board of Education of Topeka (US 1955)
i.
Lower courts that must enforce this decision are supposed
to be guided by equitable principles. In determining what
2

c.

d.

e.

to do, they must balance public and private needs. The

courts have equitable discretion.
William Inglis & Sons Baking Co v. ITT Continental Baking Co. (9th
Cir. 1976)
i.
P is entitled to a preliminary injunction when court finds
that:
a.
P will suffer irreparable injury if injunctive relief is
not granted;
b.
P will probably prevail on merits;
c.
In balancing the equities, Ds will not be harmed
more than P is helped by injunction;
d.
Granting the injunction is in the public interest.
ii.
Grant or denial of preliminary injunction is subject to
reversal only if the lower court based its decision upon an
erroneous legal premise or abused its discretion.
iii.
But there is an alternative test that was not applied at trial:
a.
One moving for a preliminary injunction assumes
the burden of demonstrating either a combination of
probable success and the possibility of irreparable
injury or that serious questions are raised and the
balance of hardships tips sharply in his favor.
b.
You have to tip the scales with one of the factors,
rather than meet all four factors of the other tests.
c.
This test is used by the 2nd and 9th Circuits; the 4th
Circuit uses the first test.
iv.
Because this test was not considered, remand for
consideration of it.
Walker v. City of Birmingham (US 1967)
i.
Ds challenged constitutionality of ex parte injunction after
violating it.
ii.
Must ALs collateral bar rule be followed, or is it more
significant that a state law prohibiting violation of
unconstitutional injunctions itself unconstitutional?
a.
Collateral bar rule: One cannot challenge a rule if
they disobey it first.
iii.
Justice Stewart ruled in favor of Ps. Ds did not object to
the injunction pursuant to the prescribed procedures; civil
liberties imply the existence of an orderly society. They
had two days to do so before they protested. Ds were not
constitutionally free to ignore procedures of the law.
iv.
Dissent: Procedure serves substantive ends.
Sniadach v. Family Finance Corp. of Bay View et al. (US 1969)
i.
D defaulted on payments to P. D was served the same
day as garnishment and challenged the constitutionality of
the garnishment procedure.
ii.
Douglas: While this may meet due process in extraordinary
situations, a prejudgment garnishment is a taking which
may impose tremendous hardship on wage earners with
families to support.
iii.
As a practical matter, this procedure may drive a wageearning family to the wall. Wages are property, so this
3

f.

g.

violates the Due Process Clause. There must be a

pregarnishment hearing.
iv.
Harlan (concurring): Anglo-American tradition supports
concept of fundamental fairness, which includes notice
and hearing.
v.
Black (dissenting): Violates states legislative rights.
Fuentes v. Shevin (US 1972)
i.
P obtained an ex parte writ of replevin against D. D was
served with complaint seeking repossession at the same
moment it was seized.
ii.
Stewart: Court has generally insisted that a hearing takes
place before any taking. The Fourteenth Amendment
protects significant property interests, including statutory
entitlements, and these are not confined to necessities.
Constitution protects higher values than efficiency and
speed.
iii.
Only in the following cases can outright seizure occur
without prior hearing:
a.
Seizure is directly necessary to secure important
governmental or general public interest.
b.
Special need for very prompt action.
c.
State has kept strict control over its monopoly of
legitimate forcegovernment official initiated the
seizure and is responsible for determining that it
was necessary and justified, under the standard of
a narrowly drawn statute.
iv.
White (dissent) relies on creditors interest. Most of the
people in these actions are going to default anyways.
Goldberg v. Kelly (US 1970)
i.
Ps received federal welfare and were not given opportunity
to challenge the termination of their benefits. Only posttermination hearings were available.
ii.
Brennan: DP requires a pre-termination hearing.
iii.
Issues
a.
Are welfare benefits protected by the Due Process
Clause? Yes. Theyre property.
1.
Two approaches to determining whether
something is protected by the Due Process
Clause.
2.
First, is it life, liberty, or property? If so,
protected; if not, no protection. This is the
approach used by the Court since Goldberg.
3.
Second, life, liberty, and property stand for
larger principles and should be construed as
broadly as possible. Any grievous harm
deserves due process.
b.
What process is due here? A pre-termination
hearing.
iv.
Balance the harm against the government interest in
summary adjudication. Here, the harm outweighs the
interests, so procedural due process must be afforded.
4

v.

h.

i.

Hearing does not need to emulate a trial; it just needs to

be at a meaningful time and in a meaningful manner.
a.
Decision makers must state reasons for decision
and evidence relied on.
b.
Although the main characteristics of the hearing
make it more like a trial: oral testimony, crossexamination, neutral judge, explanation of decision,
attorney help, etc.
vi.
Goldberg, then, is a decision that makes no one happy.
But Rowe loves it.
a.
Its about higher values. It gives people who are
outside the litigation system a chance to be heard.
It empowers people on the uneven terrain of the
law.
Matthews v. Eldridge (US 1976)
i.
Does due process require hearing before termination of
Social Security benefits?
ii.
Powell: Disabled workers financial needs are not as great
as those of welfare recipients are. In addition, there is less
evidence to be considered with a hearing of this natureit
usually turns on a doctors evaluationso the value of an
evidentiary hearing is lower.
iii.
So a hearing is not required.
iv.
Balancing test
a.
Private interest affected by government action;
b.
Risk of erroneous deprivation of that interest
through the procedures used and the probative
value, if any, of additional or substitute procedural
safeguards; and
c.
Governments interest, including fiscal and
administrative burdens.
v.
This test suffers from the soft-variable factor: Its very
difficult to quantify. And in this case the dignity and values
underlying Goldberg are not present.
vi.
Note: This only applies to state action.
vii.
Mashaw: This decision fails to consider all the values
underlying due process. Utilitarianism doesnt resolve all
issues because it makes it too easy to construe values
narrowly. Individual dignity, equality, and tradition/evolution
should have been considered more.
Rule 65: Injunctions
i.
Rule 65(a)(1): No preliminary injunction shall be issued
without notice to the adverse party.
ii.
Rule 65(b): Temporary restraining order may by granted
without notice to the adverse party only if
a.
It clearly appears that immediate and irreparable
injury loss or damage will result to the applicant
before adverse party can be heard in opposition,
and

b.

D.

Applicants attorney certifies in writing the efforts

that have been made to give notice and the
reasons why notice should not be required.
c.
Shall expire within 10 days or less, unless good
cause is show for an extended period.
d.
Motion for preliminary injunction will be held at
earliest possible time and takes precedence over
all other matters except older matters of a similar
nature. If motion for a preliminary injunction is not
made, then TRO is dissolved.
e.
On 2 days notice (or shorter, if the court so
prescribes) to party who obtained TRO, adverse
party may move to dissolve or modify the TRO.
iii.
Rule 65(c): Applicant must give a security for costs and
damages that may be incurred of suffered by any party
who is found to have been wrongfully enjoined or
restrained. Not required of U.S. or any officer thereof.
j.
28 U.S.C. 1292(a)(1): The exception to the final judgment rule.
This exception exists because injunctions are powerful.
k.
Why not to be a public interest lawyer, or the case of Mrs. G
i.
Client gets an insurance settlement; AFDC claims its
income. Client does everything possible to screw herself
at the hearing.
ii.
But of course this illustrates the virtues of due process
this upstanding member of society got her chance to stick
it to the man!
The origins of the FRCP
1.
28 U.S.C. 2072(b): Rules cannot abridge, enlarge, or modify substantive
rights.
a.
Rules that incidentally affect litigants rights do not violate this if
they are reasonably necessary to maintain the integrity of that
system of rules. Burlington Northern R. Co. v. Woods (US 1987)
2.
28 U.S.C. 2073(a)(1): Judicial Conference shall prescribe and publish
procedures for prescribing rules.
3.
28 U.S.C. 2074(a): Supreme Court shall send rules to Congress no
later than May 1; absent contrary action, the rules become effective no
earlier than December 1.
4.
28 U.S.C. 2077(b): Courts other than the Supreme Court must appoint
an advisory committee to oversee its prescription of rules.
5.
Rule 1: Rules cover disputes that arise under law or equity and shall be
construed and administered to do just, speedy, and inexpensive
determination of actions.
6.
Rule 2: There is one single action.
a.
This is huge. Transsubstantivity: One set of rules governs all civil
disputes.
7.
Should the Court be involved in the promulgation of the Rules?
a.
Does it have the expertise to make rules for lower courts?
b.
Inconsistent with Courts obligation to interpret and decide on the
legality of rules.
c.
Justices Black and Douglas objected to 1934 regime.

i.

E.

Many of the rules so dramatically change the rights of

some litigants that they amount to new legislation.
ii.
The rules do not preserve the right to trial by jury.
iii.
Supreme Court should not have role in rulemaking; under
the current system, it exercises only an occasional veto.
d.
Statement of Justice White: Get the Supreme Court out of
rulemaking.
e.
Charles Clark (architect of Rules) disagreed:
i.
Rulemaking is a task for an expert, not a town-meeting
vote ( la the Judicial Conference).
ii.
The Court gives the profession confidence in the Rules.
Class actions: Rule 23
1.
Rule 23(a): Prerequesites:
a.
Class is so numerous that joinder is impractical;
b.
Common questions of law or fact;
c.
Claims or defenses of representative parties are typical of rest of
class;
d.
Representatives will fairly and adequately protect interests of the
class.
2.
Rule 23(b): Additional requirements for maintenance (OR):
a.
Rule 23(b)(1): Separate actions would create a risk of:
i.
Inconsistent or varying adjudications which would establish
incompatible standards of conduct for opposing party;
ii.
Adjudications which would be dispositive of interests of
other members not parties to the adjudication, or
substantially impair their interests;
b.
Rule 23(b)(2): Opposing party has refused to act on grounds
generally applicable to the class, thereby making declarative or
injunctive relief with respect to class as a whole appropriate.
c.
Rule 23(b)(3): Common questions of law or fact predominate over
individual issues. Consider:
i.
Interest of members in individually controlling their side of
separate actions;
ii.
Extent and nature of any litigation concerning controversy
already commenced by or against members of the class;
iii.
Desirability (or undesirability) or concentrating litigation in
particular forum;
iv.
Difficulties likely to be encountered in management of
class action.
3.
Rule 23(c): When to certify class action
a.
Court must at early practicable time determine whether to certify.
i.
The order must define class and class issues.
ii.
Order may be modified before final judgment.
b.
Court may direct appropriate notice to 23(b)(1 or 2) classes.
c.
Court must direct best notice practicable under circumstances to
23(b)(3) classes, including individual notice to all individual
members who can be identified through reasonable effort. Must
state nature of action, definition of class, class
claims/issues/defenses, etc.

d.

F.

When appropriate, action may be maintained as a class for only

particular issues or a class may be divided into subclasses, each
treated as a class.
4.
Rule 23(e): Settlement
a.
Court must approve settlement, voluntary dismissal, or
compromise of claims/issues/defenses of certified class.
i.
Court must direct notice in reasonable manner to all
members who would be bound by it.
ii.
Court may approve settlement (etc.) that would bind class
members only after hearing that it is fari, reasonable, and
adequate.
b.
Parties seeking approval must submit statement identifying any
agreement made.
c.
In 23(b)(3) actions, court may refuse to approve settlement unless
it affords new opportunity to request exclusion to individual class
members.
5.
Rule 23(f): If made within 10 days of order, court of appeals may within its
discretion permit appeal from order certifying or not certifying a class.
6.
Rule 23(g): Class counsel
a.
Unless statute provides otherwise, court that certifies a class must
appoint class counsel.
b.
Must fairly and adequately represent interests of the class.
c.
Court must consider:
i.
investigatory work counsel has done in this case;
ii.
experience in handling class actions, other complex
litigation, and claims of this type;
iii.
knowledge of applicable law, and
iv.
resources counsel will commit to representing class.
d.
Court may also consider any other matter pertinent to counsels
ability to fairly and adequately represent interests of class.
e.
Court may direct potential class counsel to provide information on
any subject pertinent to the appointment and to propose terms for
attorney fees and nontaxable costs, and
f.
May make further orders in connection with appointment.
g.
Court may designate interim counsel.
h.
When there is only one applicant, court must still consider
requirements above. Must appoint best applicant if there is more
than one.
7.
Rule 23(h): Attorney fees award
a.
Court may award reasonable attorney fees and nontaxable costs
authorized by law or agreement of parties as follows:
i.
Must be made by motion under Rule 54(d)(2) at time set
by court.
ii.
Class member or party from whom payment is sought may
object by motion.
iii.
Court may hold a hearing and must find the facts and state
its conclusions of la on motion under Rule 52(a).
iv.
Court may refer to amount of award to a special master or
to a magistrate judge as provided in Rule 54(d)(2)(D).
Langbein: German advantage in civil procedure
1.
Characteristics of German system
8

a.
b.
c.
d.
e.

II.

German complaint proposes means of proof for its contentions.

The judge serves as the chief examiner.
German civil litigation is conducted in the absence of a jury.
There is no trialeverything is conducted in a series of hearings.
Expert testimony is frequently sought. Court takes initiative in
nominating and selecting the expert.
f.
Judges are career judges. They undergo periodic reviews.
2.
Critique
a.
Little in the American system is designed to match combatants of
similar skill.
b.
There can still be an adversarial system after discovery without
one during discovery.
c.
Attorneys rein in judges who may be prejudiced by directing
discovery.
d.
Discovery should be less partisan.
G.
Fuller: Adversary system:
1.
Through the adversary system we ensure that the parties are not
prejudiced.
2.
Its not the place of lawyers to determine the guilt or innocence of their
clients; duty to represent regardless. Trial is not meaningful unless
accused is represented by an attorney who will argue his best.
3.
But judges and juries shouldnt get involved in those issues. They
shouldnt hear an argument until it comes from the lips of the attorney
giving it.
H.
Chayes: Role of judge in public law litigation
1.
Bilateral v. triangle theories of litigation (Liberal joinder)
2.
Retrospective v. prospective fact-finding (What remedies will solve the
problem? What are the public policy effects?)
a.
Casual v. rigorous fact-finding
3.
Self-contained litigation v. consent decrees (imposed v. negotiated
remedies)
4.
Party-initiated and party-controlled suit v. judge-directed litigation
5.
Evaluation: Judiciary is not a bureaucratic as other branches.
Competency to hear grievances v. other branches.
I.
Development of FRCP and PJ: from strict rules, reformed by realists, who
replaced with vague new ideas. Shared goals of:
1.
Promoting equality
2.
Having a practical system
3.
Advancing New Deal ideas in a modern economy, and
4.
An anti-corporate slant (putting the little guy on the same foot as the
corporation).
Pleading
A.
Allocating the elements
1.
Three burdens
a.
Burden of pleading
b.
Burden of production
c.
Burden of persuasion
i.
Three standards
a.
Civil: Preponderance of evidence
b.
Fraud: Clear and convincing evidence
c.
Criminal: Proof beyond a reasonable doubt
9

2.

B.
C.

D.
E.

F.

How do we allocate the elements?

a.
Research case law on how they have historically been treated.
b.
Look to linguistic clues in the statute.
c.
Absent the above, apply policy concerns, such as convenience,
policy goals. This is ultimately about who we want to win in close
cases.
3.
Gomez v. Toledo (US 1980)
a.
P terminated from police force without hearing and brought a
1983 suit. D claimed P had to show he acted in bad faith.
b.
Some executive officers have qualified immunity for acts done on
the basis of an objectively reasonable belief that the acts were
lawful.
c.
Marshall: But this does not mean that P has to show that D acted
under bad faith; its Ds burden to show he acted under good faith.
i.
The plain terms of 1983 (or the case law) dont state that
P has to establish bad faith.
ii.
P cant know what Ds mental state was.
d.
Thus, D has the burden of pleading.
e.
Rehnquist (concurring): This resolves the burden of pleading but
leaves open the burden of persuasion.
Rule 7(a): There is a complaint, answer, and reply to an answer if it contains a
counterclaim denominated as such. Court may order a reply to an answer.
Rule 8: General rules of pleading
1.
Rule 8(a): A pleading setting forth a claim for relief must contain:
a.
A short and plain statement of jurisdiction.
b.
A short and plain statement showing pleader is entitled to relief;
and
c.
Demand for judgment.
2.
Rule 8(b): In short and plain terms, a party must state his defenses to
each claim and must admit or deny the statements relied upon by the
adverse party.
3.
Rule 8(d): When not denied in a responsive pleading, all statements in a
pleading (except those which relate to damages) requiring a response are
considered admitted. If no response is required or permitted, statements
are denied or avoided.
4.
Rule 8(e)(2): It is acceptable for a party to set forth inconsistent theories
about what happened.
While Rule 8 is quite liberal, it doesnt suffice to aver that D was negligent. Bell
v. Novick Transfer Co.
Rule 9(b): Must plead specifically for fraud or mistake, but can plead generally for
malice, intent, knowledge, or other mental states.
1.
Specificity means things like time, place, and nature of alleged
misrepresentations. Policy is to give allegedly fraudulent party fair notice.
2.
Burden of proof in fraud cases is clear and convincing evidence.
Stradford v. Zurich Insurance Co.
Private Securities Litigation Reform Act
1.
To prevent fraudulent securities fraud lawsuits, Congress enacted this law
against Clintons veto.
2.
P who alleges misleading statements must specify each statement that is
alleged to be misleading.

10

3.

G.

If P makes allegation on information and belief, P must specifically state

all facts on which belief is formed.
4.
If P alleges fraudulent intent, P must state with particularity the facts
giving rise to a strong inference that D acted with requisite mental state.
5.
Discovery is stayed until motion to dismiss for failure to state pleading
requirements is no longer pending.
6.
Professor: This takes away a body of law from the Rules and subjects it to
statutory rules.
Rule 11: Signing of papers and sanctions
1.
Rule 11(a): Each paper must be signed by an attorney or an
unrepresented party.
2.
Rule 11(b): By submitting paper to court, through signing, filing,
submitting, or later advocating, attorney or unrepresented party certifies
that to the best of his knowledge and after a reasonable inquiry:
a.
Rule 11(b)(1): The paper is not being presented for an improper
purpose. (E.g., harass, delay, increase costs of litigation.)
b.
Rule 11(b)(2): Legal contentions (e.g., claims and defenses) are
warranted by existing law or by a nonfrivolous argument for its
extension, modification, or reversalor the establishment of new
law.
c.
Rule 11(b)(3): Factual contentions (e.g., allegations) are supported
by evidence or if specifically so identified are likely to have
evidentiary support after further investigation or discovery.
d.
Rule 11(b)(4): Denials of factual contentions are warranted by the
evidence or if specifically so identified are reasonably based on
lack of information or belief.
3.
Rule 11(c): Court may award sanctions against party, firm, or attorney
who violates 11(b).
a.
Rule 11(c)(1)
i.
Rule 11(c)(1)(A)
a.
A party may initiate an 11(c) motion by specifically
stating the circumstances of the alleged violation
and serving it to the violator pursuant to Rule 5.
b.
The alleged violator has a 21-day safe harbor to
withdraw the challenged statement, paper, etc.
Then the party who initiated the motion may send it
to the court.
c.
The court may award the initiator reasonable
expenses and attorneys fees.
d.
Law firm is jointly responsible for what its
employees do, absent exceptional circumstances.
ii.
Rule 11(c)(1)(B)
a.
A court may enter a motion for sanctions on its own
initiative.
b.
The alleged violator will have to show cause as to
why 11(b) has not been violated.
b.
Rule 11(c)(2)
i.
Sanctions are to be limited to what is sufficient for
deterrence.

11

ii.

H.

Sanctions may include nonmonetary directives, penalty

payable to court, or expenses and attorneys fees to
movant.
iii.
Sanctions may not be imposed on a party for violation of
11(b)(2).
iv.
Sanctions may not be imposed on courts own initiative
unless show cause order is used before voluntary
dismissal or settlement.
c.
Policy issues:
i.
How much do you want to require someone filing a
complaint to disclose? Rule 8 v. Rule 11 (liberal v.
conservative era).
ii.
Rule 11 drives a wedge between the attorney and party
because it creates other obligations for the attorney.
d.
It really does help if an attorney conducts a reasonable
investigation.
i.
Bad things happen when, say, an attorney fails to find out
that not all parties are diverse in a 1332 action. Walker v.
Norwest Corp.
ii.
Worse things happen when an attorney refuses to look at
evidence from the other side that makes the case moot
but his previous conduct cant be considered in sanctioning
him. Christian v. Mattell, Inc.
iii.
It is also quite helpful when an attorney isnt so stupid as to
fail to exhaust administrative remedies. Bridges v. Diesel
Services, Inc.
Rule 12: Defenses and objections
1.
Rule 12(b)
a.
The following defenses may be made by a pre-answer motion:
Three tiers:
i.
Most favored
a.
12(b)(1): Lack of subject matter jurisdiction.
ii.
Favored
a.
12(b)(6): Failure to state a claim upon which relief
can be granted.
b.
12(b)(7): Failure to join a party pursuant to Rule 19.
iii.
Disfavored
a.
12(b)(2): Lack of personal jurisdiction.
b.
12(b)(3): Improper venue.
c.
12(b)(4): Insufficiency of process.
d.
12(b)(5): Insufficiency of service of process.
b.
If responsive pleading is not required, adverse party may assert
any defense in law or fact at trial.
2.
Rule 12(c): Motion for judgment on the pleadings. If more than pleadings
must be considered, treated as motion for SJ.
3.
Rule 12(d): 12(b) and 12(c) motions shall be heard at a preliminary
hearing before trial on application of any party, unless court orders a
deferral.
4.
The other pre-answer motion: Rule 12(e): Motion for a more definite
statement.

12

5.

III.

Rule 12(f): Motion to strike from adverse partys pleading any insufficient
defense or redundant, immaterial, impertinent, or scandalous material.
6.
Rule 12(g): All Rule 12 motions must be consolidated into one motion or
included in the answer, or the party will waive the defense (except as
provided in 12(h)(2 or 3)).
7.
Rule 12(h)
a.
Rule 12(h)(1): 12(b)(2-5) motions are waived if omitted (A) from a
preanswer motion or (B) a responsive pleading or an amendment
thereof permitted under Rule 15(a) as a matter of course.
b.
Rule 12(h)(2): 12(b)(6 or 7) motions or failure to state a legal
defense to a claim may be raised in any pleading permitted by
Rule 7(a), a 12(c) motion, or at trial on the merits.
c.
Rule 12(h)(3): 12(b)(1) may be raised at any time by the parties or
court.
I.
Rule 15: Amendments to pleadings
1.
Rule 15(a)
a.
Party may amend pleading once as a matter of course so long as
no responsive pleading is served or (if responsive pleading is not
permitted) action is not on trial calendar, and it is within 20 days of
the pleading being served.
b.
Otherwise, the court or adverse party must give permission.
2.
Rule 15(b): If an issue is tried by express or implied consent by the
parties, it shall be treated as though it was brought up in the pleadings.
3.
Rule 15(c): An amendment relates back when:
a.
Rule 15(c)(1): It falls within the applicable statute of limitations; or
b.
Rule 15(c)(2): Claim or defense arose out of same conduct,
transaction, or occurrence set forth or attempted to be set forth in
the original pleading; or
c.
Rule 15(c)(3): Change of party or party name.
i.
If it relates back under Rule 15(c)(2); and
ii.
Is within 120 days of service of the pleading; and
iii.
Rule 15(c)(3)(A): The party has received notice of the
action and will not be prejudiced by being included; and
iv.
Rule 15(c)(3)(B): Knew or should have known that the
action would be brought against him but for the mistake.
4.
Rule 15(d): A party may move for supplemental pleading(s) to set forth
transactions, occurrences, or events that occurred since date of pleading
sought to be supplemented. Court may order response to supplemental
pleading.
5.
Beeck v. Aquaslide N Dive Corp. (8th Cir 1977): Consider:
a.
Undue delay
b.
Bad faith or dilatory motive on part of movant
c.
Repeated failure to cure deficiencies by previous amendments
d.
Undue prejudice to opposing party
e.
Futility of amendment.
6.
Whether discovery has completed is often a dispositive factor in a courts
mind in determining whether an amendment relates back. Moore v.
Baker (11th Cir 1993) and Bonerb v. Richard J. Caron Foundation (WDNY
1994)
Discovery
A.
Structure
13

1.

Rule 26: General provisions governing discovery and duty to disclose

a.
Rule 26(a): Required disclosures
i.
Rule 26(a)(1): A party must disclose to another party,
without request and within 14 days of Rule 26(f)
conference:
a.
Contact information of people likely to have
discoverable information disclosing party may use
(to support its claims or defenses), and the subjects
of information they will likely provide;
b.
Copy or description by category and location of all
documents, data, and tangible things in
possession, custody, or control of party and that
disclosing party may use for support;
c.
Computation of any category of damages claimed
by disclosing party;
d.
Insurance agreement, under which someone may
be liable for all or part of the damages, for
inspection and copying.
e.
Exempt: (i) administrative decisions, (ii) habeas
corpus or other challenge to criminal proceeding or
sentence, (iii) person without counsel in custody of
US, state, or state subdivision, (iv) enforcement or
quashing of administrative summons or subpoena,
(v) action by US to recover benefit payments or (vi)
student loans guaranteed by US, (vii) proceeding
ancillary to proceedings in other courts, or (viii)
enforcement of arbitration award.
ii.
Rule 26(a)(2): Expert testimony
a.
Party required to disclose identity of any person
who will present expert testimony at trial.
b.
Must be accompanied by a signed written report
that includes a complete statement of the experts
opinion, any exhibits to be used in support of it, and
the reasons for the opinion, the qualifications of the
expert, including list of publications over past 10
years, compensation to be paid, and listing of other
cases in which witness has testified as expert at
trial or by deposition within past 4 years.
c.
Disclosures must be made within 90 days before
trial date or within 30 days if solely intended to
rebut other partys expert witness.
iii.
Rule 26(a)(3): Party must promptly file with court any new
informatione.g., witnesses to be presented at trial,
witnesses to be deposed, and each exhibit or document to
be used. Must be made within 30 days before trial.
iv.
Rule 26(a)(4): All disclosures are to be written, signed, and
served.
b.
Rule 26(b): Discovery scope and limits
i.
Rule 26(b)(1): Parties may discover anything that is not
privileged that is relevant to the claim or defense of any
party. For good cause, court may order discovery of any
14

c.

d.

matter relevant to subject matter. Relevant information

need not be admissible at trial; it just needs to be
reasonably calculated to lead to evidence that could be
admissible.
a.
Relevance is governed by the substantive law
under which the case arises.
ii.
Rule 26(b)(2): Discovery may be limited by court if:
a.
Rule 26(b)(2)(i): Discovery sought is unreasonably
cumulative or duplicative, or obtainable from
another source that is less burdensome, expensive,
or more convenient;
b.
Rule 26(b)(2)(ii): Party seeking discovery has
ample opportunity by discovery to obtain the
information sought; or
c.
Rule 26(b)(2)(iii): Expense of proposed discovery
outweighs its likely benefit.
iii.
Rule 26(b)(3): Party may obtain materials prepared in
anticipation of litigation only if it has substantial need of the
materials and that the party is without undue hardship able
to obtain the substantial equivalent of the materials by
other means.
a.
But there is no disclosure for mental impressions,
conclusions, or legal theories of attorney.
b.
Without required showing, party may request
statement concerning action or its subject matter
previously made by him.
c.
Note: This only partly codifies Hickman. Hickman
is the governing law for non-tangible materials
e.g., memory from interview with witness.
iv.
Rule 26(b)(4): Expert trial preparation
a.
Party may depose any expert who may testify at
trial.
b.
Unless manifest injustice would result, (i) court
shall require party seeking discovery to pay expert
for time spent responding to discovery under this
subdivision; (ii) and for discovery obtained by other
means in anticipation of trial under 26(b)(4)(B), may
pay other party fair portion of fees and expenses
reasonably incurred in obtaining facts and opinions
from the expert.
Rule 26(c): Upon motion by party or person from whom discovery
is sought, accompanied by certification that they have attempted
in good faith to confer with other affected parties, and for good
cause shown, court may make an order protecting the party from
annoyance, embarrassment, oppression, or undue burden or
expense, if justice so requires, including any of the following:
(options listed).
Rule 26(d): Discovery may not be sought until there is a Rule 26(f)
conference.

15

e.

f.

g.

Rule 26(e): Duty to supplement or correct disclosure or response

to discovery request if ordered by court or in following
circumstances:
i.
Rule 26(e)(1): Party is under duty to supplement 26(a)(1)
disclosures if party learns information is incomplete or
incorrect or other corrective information has not been
made known to other parties.
ii.
Rule 26(e)(2): Party is under duty to supplement response
to interrogatory, request for production, or request for
admission if party learns that the response is in some
material respect incomplete or incorrect or if additional
corrective information has not been made known to other
parties.
Rule 26(f): Except in cases exempted from initial disclosures,
parties must confer to discuss the nature and basis of the merits
of the case, possibilities for prompt settlement or resolution, to
arrange for required initial disclosures, and to develop discovery
plan concerning:
i.
Changes to be made to timing, form, or requirement of
initial disclosures;
ii.
Subjects on which discovery may be needed, when
discovery should be completed, and whether discovery
should be conducted in phases or focused upon particular
issues;
iii.
What changes should be made in limitations on discovery
imposed by Rules;
iv.
Other orders that should be entered by court under 26(c)
or 16(b and c).
v.
Attorneys and unrepresented parties are jointly responsible
for arranging conference and submitting to court within 14
days after conference a written report outlining the plan.
vi.
Court may order parties to attend conference in person.
Rule 26(g): Discoverys Rule 11
i.
Rule 26(g)(1): Every disclosure made under 26(a)(1 or 3)
shall be signed by at least one attorney of record or an
unrepresented party. Signature of attorney or party
constitutes a certification that the disclosure is complete
and correct (after reasonable inquiry).
ii.
Rule 26(g)(2): Every discovery request, response, or
objection shall be signed and after reasonable inquiry such
signature certifies that the paper is:
a.
Consistent with the Rules and warranted by
existing law or a good faith argument for the
extension, modification, or reversal thereof.
b.
Not interposed for an improper purpose.
c.
Not unreasonable or unduly burdensome or
expensive.
iii.
Rule 26(g)(3): If a certification is made in violation of this
rule, upon motion or upon courts initiative, the court shall
impose upon the person who made the certification or the
party he is representing, or both, an appropriate sanction,
16

which may include amount of reasonable expenses

incurred because of violation, including reasonable
attorneys fee.
B.

Methods of discovery
1.
Rule 28(c): No deposition shall be taken before a person who is a
relative, attorney, or counsel of any of the parties or is a relative of such a
person, or is financially interested in the action.
2.
Rule 30
a.
Rule 30(a): When leave may be required for depositions
i.
A party may depose anyone by oral examination without
leave of court except as provided by 30(a)(2) (next par).
ii.
A party must obtain leave of court (to be granted to extent
consistent with principles in 26(b)(2)) if the person to be
examined is confined in prison or if, without written
stipulation of the parties:
a.
Proposed deposition would result in more than 10
depositions being taken under this rule or Rule 31
by a party (P, D, or 3rd-party D);
b.
Person to be examined has already been deposed
in the case;
c.
Party seeks to take a deposition before time
prescribed in Rule 26(d) unless notice contains
certification and supporting facts that person will
leave the US and be unavailable later.
b.
Rule 30(b): Notice of examination
i.
Rule 30(b)(1): Party desiring to take oral deposition must
notify all other parties to the action. Must include
time/location/name of person to be deposed, etc.
ii.
Rule 30(b)(2): Party taking deposition shall state in notice
method by which deposition will be recorded and will bear
the cost of the recording. Unless court orders otherwise,
must be taken by stenographic, sound and visual, or sound
means.
iii.
Rule 30(b)(3): Any party may request another means of
recording if notice is provided to all other parties and the
deponent. Additional recording shall be made at partys
expense.
c.
Rule 30(c): Examination and cross-examination of deponents may
proceed as it would at trial under the Federal Rules of Evidence.
All objections shall be noted by officer before whom deposition is
being taken, who is also responsible for recording it. In lieu of
participating in oral examination, party may serve written
questions in sealed envelope on party taking deposition, who shall
transmit them to the officer, who will ask the questions to the
witness.
d.
Rule 30(d)
i.
Any objection stated during deposition must be stated
concisely and in a non-argumentative and non-suggestive
manner.
ii.
Unless authorized by court or stipulated by parties,
deposition is limited to one day of seven hours. Court
17

3.

4.

must allow additional time consistent with 26(b)(2) if

needed for fair examination of deponent or if another
person or circumstance impedes the examination.
iii.
Sanction may be imposed for interference
(impediment/delay/other conduct) with a deposition.
iv.
Court may order officer taking deposition to stop doing so
or to limit it pursuant to Rule 26(c) if, by motion of party or
by its own initiative, court determines that examination is
being conducted in bad faith or in a manner that
unreasonably annoys, embarrasses, or oppresses the
deponent or party.
e.
Rule 30(g)
i.
If party giving notice of deposition fails to attend and
proceed therewith but another party attends in person or
by attorney pursuant to the notice, he may order the party
giving notice to pay the other party reasonable
expenses/attorneys fees.
ii.
If party giving notice of a deposition fails to serve a
subpoena on a witness and another party attends, court
may award expenses and attorneys fees to other party.
Rule 31
a.
Rule 31(a)
i.
Party may take testimony in this manner without leave of
court except as provided in 31(a)(2).
ii.
Same as 30(a)(2).
iii.
Must serve notice to all other parties of the identity/contact
information of the witness and officer.
iv.
Within 14 days after notice and written questions are
served, a party may serve cross questions on all other
parties. Within 7 days of being served cross questions, a
party may serve redirect questions on all other parties.
Within 7 days of being served redirect questions, a party
may serve recross questions on all other parties.
b.
Rule 31(c): When deposition is filed party taking it must promptly
notify all other parties.
Rule 32
a.
Rule 32(a): Deposition may be used against any party in court
hearing/trial/etc. if it is in accordance with the evidence rules and
the following provisions:
i.
Any deposition may be used by any party for contradicting
or impeaching testimony of deponent as a witness.
ii.
Deposition of a party or anyone who at the time was taking
deposition on behalf of a corporation/agency which is a
party may be used by an adverse party for any purpose.
iii.
Deposition of witness, party or not, may be used by any
party for any purpose if court finds:
a.
Witness is dead, or
b.
Witness is >100 miles away from place of trial or
hearing, or is out of US, unless absence of witness
appears to have been procured by party offering
deposition, or
18

c.

5.

Witness is unable to attend or testify due to age,

illness, infirmity, or imprisonment, or
d.
Party offering deposition has been unable to
procure attendance of witness by subpoena, or
e.
Upon application and notice, exceptional
circumstances exist that make it desirable, in the
interest of justice, and with due regard to the
importance of presenting testimony of witness
orally in open court, to allow deposition to be used.
iv.
Deposition taken without leave of court under 30(a)(2)(C)
cannot be used against a party who demonstrates that he
was unable to obtain counsel at the taking of deposition or
if he received less than 11 days notice of deposition and
promptly filed for protective order under 26(c)(2).
v.
Rule 32(a)(4)
a.
If only part of a deposition is to be offered as
evidence, adverse party may request that for
fairness the rest of it is introduced.
b.
Substitution of parties pursuant to Rule 25 does not
affect use of prior depositions.
b.
Rule 32(d)
i.
Errors and irregularities in notice for deposition are waived
unless written objection is promptly served upon party
giving notice.
ii.
Objections to taking of deposition.
a.
Competency of witness or
competency/relevance/materiality of testimony are
not waived by failure to make them before or during
taking of deposition, unless ground of objection
might have been obviated or removed if presented
at the time.
b.
Errors or irregularities in questions, manner of
taking deposition, etc., are waived unless
seasonable objection thereto is made at deposition.
c.
Objections to form of written questions submitted
under Rule 31 are waived unless served in writing
upon party propounding them within the time
allowed for serving the succeeding cross or other
questions and within 5 days after service of the last
questions authorized.
iii.
Objections to manner in which testimony is transcribed,
etc., was waived unless a motion to suppress deposition or
a part thereof is made with reasonable promptness after
the defect is, or with due diligence might have been,
ascertained.
Rule 33
a.
Rule 33(a): Any party may serve upon any other party no more
than 25 written interrogatories, including all discrete subparts,
without leave by court. Additional interrogatories may be served
by leave of court if it is consistent with 26(b)(2).
b.
Rule 33(b): Answers and objections
19

i.

6.

7.

Each interrogatory shall be answered fully in writing and

separately, under oath, unless it is objected to, in which
case the party shall state any objections and answer all
non-objectionable parts.
ii.
Answers are to be signed by party making them and
objections by attorney making them.
iii.
Has 30 days from service of interrogatories to respond.
iv.
Objections shall be stated with specificity. Any objection
not stated in a timely manner is waived unless it is excused
by court for good cause.
c.
Rule 33(c): Contention interrogatories
i.
Interrogatories may relate to any matter discoverable
under 26(b)(1) and may be used at trial to extent allowed
by rules of evidence.
ii.
Interrogatory is not objectionable if it is otherwise proper
but its answer contains opinion or contention that relates to
fact or application of law to fact.
d.
Rule 33(d): If answer to interrogatory is contained in business
records and deriving or ascertaining the answer from them is
substantially equally burdensome to either party, it is a sufficient
answer to specify records from which answer may be derived and
to afford other party reasonable opportunity to examine, audit, or
inspect the records and to make copies, compilations, abstracts,
or summaries.
Rule 34
a.
Rule 34(a)
i.
Party may serve on another party a request to inspect
tangible things that are within scope of 26(b) and in
possession/control/or custody of the other party.
ii.
Party may serve on another party a request to permit entry
upon land for inspection, measuring, surveying, testing,
etc., within scope of Rule 26(b).
b.
Rule 34(b)
i.
Request shall set forth each item to be inspected and
reasonable time, place, and manner of making inspection
or other related acts.
ii.
Request may be served before time specified in Rule
26(d).
iii.
Party upon whom request is served shall provide a written
response within 30 days. Response shall state what
inspections are permitted and any objections.
iv.
Party who produces documents for inspection shall
produce them as they are kept in the usual course of
business or shall organize and label them to correspond
with categories in request.
c.
Rule 34(c): Persons not a party may be compelled to produce
documents and things or to submit to an inspection as provided in
Rule 45.
Rule 35
a.
Rule 35(a)

20

i.

C.

If mental or physical condition of a party or person in

custody or control of party is relevant, court may order him
to submit to physical or mental examination by a
licensed/certified examiner or to produce for examination
the person in his custody.
ii.
Order may be made only by motion for good cause and
upon notice to person to be examined and all other parties
which specifies time, place, conditions, manner, and scope
of examination and the person by whom examination is to
be made.
b.
Rule 35(b)
i.
Party that requests examination must furnish copy of
examiners report upon request.
ii.
By requesting and obtaining examiners report or deposing
him, party examined waives any privilege in that action or
in any other involving the same controversy, regarding
testimony of every other person who has examined him or
may do so thereafter regarding the same mental or
physical condition.
8.
Rule 36
a.
Rule 36(a)
i.
A party may serve on another party written requests for
admission, for purposes of pending action only, as to the
truth of any matters within scope of Rule 26(b)(1) that
relate to statements or opinions of fact or of the application
of the law to fact. May not be served without leave of court
before time in 26(d).
ii.
Matter is admitted unless within 30 days after service (or
as the court may order or the parties agree in writing) the
party to whom request is directed serves a written answer
or objection on the party requesting.
iii.
Answer shall specifically deny the matter or set forth in
detail why answering party cannot fully admit or deny the
matter.
iv.
Party requesting admissions may move to determine the
sufficiency of the answers or objections. Unless court
determines that objection is justified, answer shall be
served. If court determines answer does not comply with
requirements of this rule, it may order that matter is
admitted or that amended answer be served.
b.
Rule 36(b): Any matter admitted under this rule is conclusively
established unless court on motion permits withdrawal or
amendment of the admission. Court may admit withdrawal or
amendment when it would serve the presentation of the merits
and the party who obtained admission fails to establish that he will
be prejudiced if a withdrawal or amendment is granted.
Sanctions
1.
See Rule 26(f), above.
2.
Rule 37: Failure to make or cooperate in discovery: Sanctions

21

a.

Rule 37(a): Party, upon reasonable notice to other parties and

others affected thereby, may apply for an order compelling
disclosure or discovery as follows:
i.
Rule 37(a)(1): Motion must be made to court in which
action is pending.
ii.
Rule 37(a)(2)
a.
Any party may move to compel disclosure and for
appropriate sanctions if there is a failure to disclose
under Rule 26(a). Motion must include certification
that movant has in good faith attempted to confer
(or conferred) with party not making the disclosure
in effort to secure disclosure without court action.
b.
Discovering party may move for an order
compelling answer, designation, or inspection if a
deponent fails to answer a question under rules 30
or 31, or an entity fails to designate under Rules 30
or 31, or party fails to answer interrogatory under
rule 33, or if party fails to respond that inspection
will be permitted after request under Rule 34.
iii.
Rule 37(a)(3): Evasive or incomplete
answer/disclosure/etc. is considered a failure to
disclose/answer/respond for purposes of this Rule.
iv.
Rule 37(a)(4): Expenses and sanctions
a.
Rule 37(a)(4)(A)
1.
If motion is granted or if
disclosure/discovery is provided after
motion is filed, court shall, after affording
opportunity to be heard,
2.
Require party or deponent whose conduct
necessitated motion or party or attorney
advising such conduct or both to pay the
moving party the reasonable expenses
incurred in making the motion
3.
Unless court finds that motion was filed
without the movants first making a good
faith effort to obtain the disclosure/discovery
without court action
4.
Or that opposing partys
nondisclosure/response/objection was
substantially justified,
5.
Or that other circumstances make an award
of expenses unjust.
b.
Rule 37(a)(4)(B): If motion is denied, court may
issue protective order and shall, after opportunity to
be heard, require moving party (or other
responsible people) to pay to party or deponent
who opposed motion reasonable expenses incurred
in opposing motion, unless court finds that making
of motion was substantially justified or that other
circumstances make an award of expenses unjust.

22

c.
b.

c.

Rule 37(a)(4)(C): If motion is granted in part and

denied in part, court may do a combination of the
above, in a just manner.

Rule 37(b)
i.
Rule 37(b)(1): If deponent fails to be sworn or to answer
question, it may be considered contempt of court.
ii.
Rule 37(b)(2): If a party or his designee (if party is entity)
fails to obey order to provide or permit discovery, court my
make such orders in regard to failure as are just, including:
a.
Order that matters regarding which order was made
are established for purposes of action;
b.
Order refusing to allow disobedient party to support
or oppose designated claims or defenses, or
prohibiting the party from introducing certain
matters into evidence;
c.
Order striking out pleadings or parts thereof, or
staying further pleadings until order is obeyed, or
dismissing action or proceeding or any party
thereof, or rendering default judgment against
disobedient party;
d.
In lieu of any above orders or in addition thereo,
treating failure to obey orders as content of court
(except orders to submit to physical or mental
examination);
e.
When a party fails to comply with order under
35(a), requiring party to produce another for
examination, any orders in (i-iii), unless party failing
to comply is unable to produce such person.
f.
In lieu of foregoing orders or in addition thereto,
court shall require party failing to obey order or
attorney advising that party or both to pay
expenses caused by failure, unless court finds that
failure was substantially justified or that other
circumstances make award of expenses unjust.
Rule 37(c)
i.
Party who without substantial justification fails to disclose
information required by 26(a) or 26(e)(1) or to amend prior
response as required by 26(e)(2) is not permitted to use as
evidence at trial/hearing/motion any witness or information
not so disclosed.
a.
Court may award attorneys fees and other
expenses or other sanctions authorized under 37(b)
(2) and may include informing jury of failure ot
make disclosure.
ii.
If party fails to admit genuineness of any document or truth
of any matter as required under 36, and party seeking to
prove it later proves it, he may apply for order requiring
other party to pay expenses incurred in making htat proof.
a.
Court shall make order unless it finds that the
request was objectionable under 36(a), admission
sought was of no substantial importance, the party
23

failing to admit had reasonable ground oto believe

party might prevail on this matter, or there was no
other good reason for failure ot admit.
d.

D.

E.

Rule 37(d)
i.
If party or representative (if party is an entity) fails to
appear before officer at deposition, respond to
interrogatories, or serve written response to request for
inspection, court may on motion make such orders in
regard to failure as are just, including what is specified in
37(b)(2).
ii.
Any motion under the last two options shall include
certification that movant has conferred in good faith or
attempted to do so with other party.
e.
Rule 37(g): If party or partys attorney fails to participate in good
faith in development and submission of proposed discovery plan
under Rule 26(f), the court may require such party or attorney to
pay any other party reasonable expenses caused by the failure.
Scope and limits of discovery
1.
Relevance
a.
Davis v. Precoat Metals (NDIL 2002)
i.
In class action discrimination suit, Ps sought complaints by
other employees working at same plant and at the same
time in discovery. Permissible?
ii.
Yes. It is narrowly tailored to the specific allegations in the
Ps complaint.
b.
Steffan v. Cheney (DC Cir. 1990): Review of an administrative
decision is confined to the grounds upon which the record
discloses the action was based.
2.
Privilege
a.
Most common privileges are self-incrimination, attorney-client,
doctor-patient, and psychotherapist-patient.
b.
Note that a party who invokes self-incrimination may waive the
privilege, but once he starts discussing the privileged information,
he cannot stop. E.g., denies participation in crimecannot fail to
be cross-examined.
c.
Upjohn Co. v. United States (US 1981)
i.
Control group test: attorney-client privilege extends only to
the top management of a corporation.
ii.
This is incorrect. Low- and mid-level employees can also
have information relevant to an attorneys case. This test
frustrates the purpose of attorney-client privilege.
d.
Butler v. Rigby (EDLA 1998): Printouts of number of patients
referred to by Ps lawyers is discoverable, but not listing of past
and current patients.
e.
Marcus: Discovery containment redux: some discrimination claims
are only possible because of broad discovery. Employment
discrimination law has been built around it.
Work product
1.
Brady v. Maryland (US 1963): All evidence which may be favorable to
accused and is material to guilt or punishment must be given to the
defense.
24

2.

F.

IV.

Trial
A.

United States v. Ruiz (US 2002): Material impeachment evidence does

not need to be disclosed to the other party before a plea agreement with
a criminal D.
3.
Hickman v. Taylor (US 1947)
a.
Ds attorney interviewed survivors of a boat accident in
anticipation of litigation. Ps attorney sought, inter alia, transcripts
of those interviews. Privileged?
b.
Not by attorney-client privilege; it does not extend to
communications, writings, etc. prepared by counsel for his own
use.
c.
Public policy against allowing mental impressions to be
discoverable.
d.
These cannot be discoverable without adequate justification. But
mental impressions are absolutely privileged.
e.
The P in this case just wanted the statements to help him prepare
for trial. The policy implications of allowing P to have this are
undesirable.
f.
Contention interrogatory (one party seeks to discovery broad
allegations underlying general complaint) creates a number of
work product problems, as it delves into an attorneys mental
impressions about the contentions underlying a legal theory.
g.
Note that in anticipation of litigation is usually interpreted very
strictly: In anticipation of actual, not supposed, litigation.
h.
Broad discovery v. Hickman tension.
Required disclosures
1.
Statement of Justice Scalia
a.
Required disclosures amendment will increase the burden on
judges as the parties battle out what is relevant to disputed
facts.
b.
It also requires that an attorney act, in effect, in the interest of his
adversary. This is a threat to the adversary system.
c.
The amendments do not have popular support in the profession.
d.
The amendment has not been well-tested.
2.
Coleman: Civil disclosure
a.
Selective implementation of the required disclosure amendments
has increased the likelihood of forum shopping.
b.
Helps lazy lawyers.
Default judgments and dismissals
1.
Rule 41
a.
Rule 41(a): Voluntary dismissal
i.
By P: May be dismissed without order of court by filing
notice of dismissal before Ds answer is served or of
motion for SJ, whichever comes first, or by filing stipulation
of dismissal signed by all parties.
a.
Dismissal is without prejudice.
b.
Adjudication upon merits when filed by P who has
before dismissed same claim in federal or state
court.
ii.
By court: Upon such terms as court deems proper. If
counterclaim has been pleaded by D prior to service upon
25

B.

D of Ps motion to dismiss, action shall not be dismissed

against Ds objection unless counterclaim can remain
pending for independent adjudication by court. This is
without prejudice.
b.
Rule 41(b): Involuntary dismissal
i.
If P fails to prosecute or to comply with rules or court order,
D may move for dismissal. This is an adjudication upon the
merits (as well as any other dismissal but for failure to join,
lack of jurisdiction, or for improper venue).
c.
Rule 41(c): Dismissal of counterclaim, third-party claim, or crossclaim shall be made pursuant to rules applicable to Ps voluntary
dismissal (before presentation of evidence at trial if no responsive
pleadings).
d.
Rule 41(d): If P has previously dismissed same claim against
same D, court may order costs for previously dismissed action as
it deems proper and may stay proceedings until P has complied
with order.
2.
Rule 55
a.
Rule 55(a): When someone against whom a claim is brought fails
to plead or otherwise defend, clerk shall enter partys default.
b.
Rule 55(b): Judgment by default may be entered:
i.
By clerk: When Ps claim is for a sum certain or
computable sum, request affidavit from P about amount
due; enter judgment for that amount and costs against D, if
D has failed to appear and is not an infant or incompetent
person.
ii.
By court
a.
In all other cases, P shall apply.
b.
Unless there is a representative, no default against
infant or incompetent.
c.
If D has appeared, must be served with written
notice of application at least 3 days prior to hearing
on application.
d.
If necessary to determine damages or facts by
evidence, court may conduct hearings or order
reference as it finds necessary and proper, and
shall grant a jury trial as required by the 7th
Amendment.
c.
Rule 55(c): Court may set aside default for good cause or default
judgment in accordance with Rule 60(b).
d.
Rule 55(e): No default against US or officer/agency thereof unless
P establishes claim or right to relief by evidence satisfactory to
court.
Long shadow of trial
1.
Rule 49
a.
Rule 49(a): Court may order jury to return only a special verdict in
form of special written finding upon each issue of fact. Court shall
give jury explanations and instructions about matter submitted as
may be necessary to enable it to make its findings upon each
issue. If court omits issue of fact raised by pleadings or evidence,

26

2.

3.

4.
5.

jury trial for those issues waived unless its demanded before jury
retires.
b.
Rule 49(b): Court may order jury to return a general verdict with
answers to interrogatories as to specific facts. When answers are
harmonious, judgment entered pursuant to Rule 58.
Rule 50
a.
Rule 50(a)
i.
If during a jury trial a party has been heard on an issue and
there is no legally sufficient evidentiary basis for a
reasonable jury to find for that party on that issue, court
may determine issue against that party on a claim or
defense that cannot be maintained or defeated without
favorable finding on that issue.
ii.
May be made at any time before case is submitted to jury.
b.
Rule 50(b)
i.
May renew above motion by filing it no later than 10 days
after entry of judgment and may alternatively request a
new trial or join a motion for a new trial under Rule 59.
ii.
Court may direct entry of judgment as a matter of law,
order a new trial, or (if a verdict was returned) allow the
judgment to stand.
c.
Rule 50(c)
i.
If renewed motion is granted, court shall also rule on
motion for new trial and shall specify grounds for its ruling.
ii.
If the motion for a new trial is conditionally granted, it does
not affect the finality of the judgment.
iii.
Motion for new trial under Rule 59 by party against whom
judgment as a matter of law has been rendered shall be
filed no later than 10 days after entry of judgment.
d.
Rule 50(d)
i.
If motion for judgment as a matter of law is denied,
prevailing party (on the motion) may explain why he is
entitled to a new trial in the event the appellate court rules
that the trial court erred in denying the motion for
judgment.
ii.
If appellate court reverses judgment, nothing precludes it
from determining that appellee is entitled to new trial or
from directing trial court to determine whether new trial
should be granted.
Renewed motion for judgment as a matter of law called judgment non
obstante veredicto or notwithstanding the verdict at common law.
a.
Cant overturn a verdict just because its based on highly
circumstantial evidence. Jury is permitted to pile inference upon
inference to get to a verdict. Norton v. Snapper Power
Equipment.
Note: The renewed motion must be on the same grounds as the one at
the close of evidence. You cant bring up new reasons.
Rule 59
a.
Rule 59(a): New trial may be granted to any party on any or all of
the issues, when
i.
There has been a jury trial,
27

a.

C.

For the reasons new trials are granted in actions at

law; or
ii.
There has been a bench trial,
a.
For reasons which rehearings have been granted in
actions at equity.
b.
In these actions, courts may take additional
testimony or find more facts.
b.
Rule 59(b): Must be filed < 10 days after entry of judgment.
c.
Rule 59(c): If motion is based on affidavits, must be filed with
motion; opposing party has 10 days after service to file opposing
affidavits. (Court may alter this timeline.)
d.
Rule 59(d): Within same amount of time, court may order new trial
that would justify granting one on a partys motion. Can grant one
for a ground not specified in motions if parties have notice and
opportunity to be heard. Must specify reasons for granting new
trial.
e.
Rule 59(e): Motion to alter or amend judgment shall be filed < 10
days after entry of judgment.
f.
Frequent reasons for granting a new trial:
i.
Flawed procedurese.g., lawyer has made impermissible
argument to the jury or bad piece of evidence admitted.
ii.
Flawed verdictse.g., verdict is against the weight of the
evidence.
6.
Rule 60
a.
Rule 60(b): On motion and such terms as are just, the court may
relieve a party from a final judgment, order, or proceeding for the
following reasons:
i.
Mistake, inadvertence, surprise, or excusable neglect;
ii.
Newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial
under 59(b).
iii.
Fraud, misrepresentation, or other misconduct of the
adverse party;
iv.
Judgment is void;
v.
Judgment has been satisfied, released, or discharged, or a
prior judgment on which it was based has been reversed or
vacated, or it is no longer equitable that the judgment
should have a prospective application; or
vi.
Any other reason justifying relief from the operation of the
judgment.
vii.
Motion shall be made within a reasonable time. For the
first three reasons, not >1 year after judgment was
entered. Motion does not affect finality of judgment.
Summary judgment
1.
Rule 56
a.
Rule 56(a): Claimant may move with or without supporting
affidavits for SJ in his favor >20 days after action commences or
after service of motion for SJ by adverse party.
b.
Rule 56(b): D may move for SJ at any time with or without
supporting affidavits.
c.
Rule 56(c)
28

i.

2.
3.
4.

5.

Motion shall be served > 10 days before hearing date.

Adverse party may serve opposing affidavits before the
day of the hearing.
ii.
Judgment shall be rendered if pleadings, depositions,
answers to interrogatories, and admission on file, together
with the affidavits, show that there is no GIMF and that the
moving party is entitled to judgment as a matter of law.
iii.
An interlocutory SJ may be rendered on issue of liability
alone even though there is a GI as to damages.
d.
Rule 56(d): If motion is made on only part of the case, the court at
the hearing shall if practicable ascertain what material facts exist
without substantial controversy and what material facts are
actually and in good faith controverted. Shall be deemed
established at trial.
e.
Rule 56(e): Affidavits shall be made on personal knowledge, shall
set forth facts that will be admissible in evidence, and shall show
affirmatively that affiant is competent to testify about the matters
stated therein. When motion for SJ is made and supported as
provided in this rule, adverse party may not rest upon mere
allegations or denials of adverse partys pleading, but must be
supported by affidavits or other forms showing that there is a GI
for material trial. If adverse party does not so respond, SJ shall be
entered for movant.
f.
Rule 56(f): If opposing party cannot for reasons stated present by
affidavit facts essential to justify his opposition, court may refuse
application for SJ or may order a continuance to permit affidavits
to be obtained or depositions to be taken or discovery to be had or
may make such other order as is just.
g.
Rule 56(g): If it appears to the court at any time that any affidavit
presented pursuant to this rule is made in bad faith or solely for
the purpose of delay, court shall order party employing them to
pay the other party the amount of the reasonable expenses which
the filing of the affidavits caused the other party to incur, including
reasonable attorneys fees, and any offending party or attorney
may be adjudged guilty of contempt.
The role of SJ: necessary part of Rules, test for pleading, gatekeeper,
makes discovery more important.
Wald: SJ has been over-used to become more of a gestalt verdict early
on. This discriminates against the little people/minority litigants.
Adickes v. S.H. Kress & Co. (US 1970)
a.
P was a white teacher at an alternative school for black kids. She
went into Ds restaurant with some of her students and wasnt
served. She was then arrested on a bogus vagrancy charge.
b.
Claimed that police officer and restaurant conspired.
c.
D moved for SJ; P submitted paper which wouldnt be admissible
as evidence. But SJ for D reversed because it is the moving
partys responsibility to negate Ps case; D didnt foreclose
possibility that there was a conspiracy.
Arnstein v. Porter (2nd Cir 1946): P sued D over a copyright dispute on an
absurd theory and thin evidence; D moved for SJ, claiming that P didnt
have access to his materials. SJ for D reversed; because the conflicting
29

D.

evidence is a credibility question for the jury, D must prove indubitably

that he didnt plagiarize P.
6.
Celotex Corp. v. Catrett (US 1986)
a.
P sued D for his asbestosis. D moved for SJ; granted because P
could not demonstrate that he was exposed to Ds products.
b.
Burden in SJ is on party who has burden at trial. SJ is an integral
part of the Rules, not a disfavored procedural shortcut.
c.
SJ for D upheld. (Rehnquist)
d.
Brennan (dissenting): Celotex didnt meet its burden; movant must
affirmatively demonstrate that there is no evidence.
7.
Matsushita v. Zenith (US 1986): When a MP has carried its burden under
Rule 56, then the NMP must show with specific facts that an IMF is truly
G.
8.
Anderson v. Liberty Lobby (US 1986): Evidence presented by NMP is to
be believed and inferences favorable to him are to be drawn; credibility is
for the jury, not the judge.
9.
Houchens v. American Home Assurance Co. (4th Cir 1991)
a.
Ps husband mysteriously disappeared abroad. Was it an
accidental death, covered by her life insurance policies?
b.
SJ for D. There isnt enough evidence to demonstrate that H died
due to an accident. It was a legally permitted presumption that he
was dead. Too much supposing would have to occur to assume
he died accidentally. Other cases had much stronger facts.
10.
Its very important, then, to take discovery seriously e.g., Bias (parents
attempted to negate Ds depositions of friends tending to show that Ps
son was a drug user with their & the coachs statements about their son
insufficient).
Judge or jury
1.
7th Amendment: In suits at common law, where value in controversy shall
exceed $20, right to jury trial shall be preserved, and no fact tried by jury
shall be reexamined than according to rules of common law.
a.
Three problems: new technology, new procedures, and new
causes of action.
2.
Rule 38
a.
Rule 38(b): Any party may demand a jury trial for any issue
entitled to it by:
i.
Serving upon other parties a demand in writing after
commencement of action and < 10 days after service of
last pleading directed to such issue, and
ii.
Filing the demand as required by Rule 5(d).
b.
Rule 38(c): Party may specify issues which party wishes to be
tried by jury in demand. Otherwise party shall be deemed to have
demanded trial by jury for all issues so triable. Within 10 days of
service of demand, other parties may demand jury trial for any
other issues entitled to such.
c.
Rule 38(d): Failure to demand jury trial constitutes waiver by that
party of jury trial. Demand for jury trial cannot be withdrawn
without the consent of the parties.
3.
Rule 39
a.
Rule 39(a): When issues are demanded to be tried by jury, they
shall be so tried, unless
30

i.

4.

5.

Parties or their attorneys of record consent to bench trial

by written stipulation filed with court or by equivalent oral
stipulation or
ii.
The court upon motion or of its own initiative finds that a
right to jury trial by some or all issues does not exist.
b.
Rule 39(b): Court may in its discretion upon motion may order jury
trial for any or all issues (for which jury trial has not been
demanded).
c.
Rule 39(c): In issues not triable by jury, the court may on its own
initiative of motion try any issue with an advisory jury or (except in
actions against US when a statute of US provides for bench trial)
the court may order jury trial with consent of both parties, where
verdict will have same effect as if jury trial had been a right.
Rule 47
a.
Rule 47(a): Court may permit parties or their attorneys to conduct
examination of prospective jurors or it may do so. In the latter
case, court shall permit parties or their attorneys to supplement
examination by such further inquiry as it deems proper or shall
itself submit to the prospective jurors such additional questions of
the parties or their attorneys as it deems proper.
b.
Rule 47(b): Shall allow number of peremptory challenges provided
by 1870.
c.
Rule 47(c): Judge may for good cause excuse juror from service
during trial or deliberation.
Rule 51
a.
Rule 51(a)
i.
A party may at the close of evidence or at an earlier
reasonable time that the court directs, file and furnish to
every other party written requests that the court instruct the
jury on the law as set forth in the requests.
ii.
After the close of evidence, a party may:
a.
File requests on issues that could not have been
reasonably anticipated at an earlier time for the
above requests, and
b.
With the courts permission file untimely requests
for instructions on any issue.
b.
Rule 51(b)
i.
The court must inform the parties of its proposed
instructions and proposed action on the requests before
instructing the jury and before final jury arguments;
ii.
The court must give the parties an opportunity to object on
the record and out of the jurys hearing to the proposed
instructions and actions before the instructions and
arguments are delivered;
iii.
The court may instruct the jury at any time after trial begins
and before the jury is discharged.
c.
Rule 51(c)
i.
A party who objects to an instruction or the failure to do so
must do it on the record, stating distinctly the matter
objected to and the grounds for the objection.
ii.
An objection is timely if:
31

a.

b.

A party that has been informed of an instruction or

action before jury is instructed and the final
arguments objects after close of evidence, as
provided by Rule 51(a).
Or a party that has not been informed objects
promptly after learning that the instruction or
request will be, or has been, given or refused.

d.

6.

Rule 51(d)
i.
A party may assign as error on appeal:
a.
An error in an instruction actually given if that party
made a proper objection under Rule 51(c), or
b.
A failure to given an instruction if that party made a
proper request under Rule 51(a) (unless court
made a definitive ruling on the record rejecting the
request) also made a proper objection under Rule
51(c).
ii.
A court may consider a plain error in the instructions
affecting substantial rights that has not been preserved as
required by this subdivision.
The 7th Amendment is a constitutional stupidity.
a.
Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry (US
1990)
i.
Ps were laid off and recalled as temporary workers a
number of times; asked union to file a grievance. Union
did it twice and lost and refused to do it a third time. Ps
sued the union and their employer.
ii.
Court applied historical test to determine whether Ps were
entitled to jury trial. Was it a breach of trust? Malpractice
action? Breach of contract?
iii.
Court says we need to consider the nature if the issue to
be tried, not the character of the overall action. Here,
because theres a tie in terms of what the issue is (akin to
breach of contract (L) and breach of trust (E)), look at the
remedy to be sought. Backpay is legal in nature, so lets
give them a jury trial.
iv.
Brennan (concurring): Just look at the remedy; this
historical test is ridiculous.
b.
The court has tended to allow right to jury trial under 7th
Amendment for new causes of action that seek money damages
when Congress is silent (ADEA, FLSA, Title VIII of Civil Rights
Act). But not with Title VII (employment discrimination) not clear
whether backpay is a legal remedy.
i.
But right to jury trial has been very restricted in patent
cases.
ii.
But the courts usually defer to Congress when it says
whether there is or is not a right to jury trial.
c.
Beacon Theatres v. Westover (US 1959): Right to jury trial is
constitutional, but no similar requirement protects bench trials.
(e.g., no right to bench trial in equitable claims.) Absent
exceptional circumstances, cannot try equitable claims first to
prevent trying the case by jury.
32

7.

V.

Supplementary materials
a.
Amateurish laypeople v. important role in democracy.
b.
Juries as legislative assemblies.
c.
Juries legitimize stringent decisions.
d.
More disagreement among judges and juries when it comes to
damage issues than liability. (Jury awards about 20% higher)
e.
80% of jury trials conducted in US.
f.
Justice Black on juries: Got very sympathetic Ps with weak cases
before juries and won.
g.
The case of medical malpractice: Juries have to decide standards
of medical care. This creates unreliable justice.
E.
Jury selection
1.
First step: Pool of prospective jurors summoned. Then the members of
the jury are selected from the pool.
a.
1861: Entitled to juries selected at random from a fair cross
section of the community.
b.
1862: No exclusion based on race, color, religion, sex, national
origin, or economic status.
c.
1867(c): Party may challenge jury pool before voir dire or within
7 days after party discovered or could have discovered by the
exercise of diligence the grounds therefore, whichever is earlier,
by moving to stay the proceedings on the grounds of substantial
failure to comply with provisions governing petit jury selection.
d.
1870: 3 peremptory challenges per party (multiple parties are
considered one for this purpose).
2.
Marshall (concurring) in Batson v. Kentucky:
a.
Peremptory challenges should be abolished because theyre used
to exclude black jurors. Anyways, its been consistently held that
right to peremptories is not of constitutional magnitude.
b.
The majority in this case had held that whether a prima facie case
of discrimination has been established required consideration of
all relevant circumstances, including whether there has been a
pattern.
3.
Edmonson v. Leesville Concrete Co. (US 1991)
a.
P (black) sued D for negligence and D used 2 of its peremptories
to exclude blacks from the jury. P is black. D gave a bogus raceneutral explanation for why he excluded potential jurors.
b.
Is it state action?
c.
Kennedy: Yes. When private litigants select jurors, they serve
important function within government and act with its substantial
assistance.
d.
So courts must entertain an equal protection challenge to racially
discriminatory peremptory exclusions.
e.
Majority in Batson applies to civil cases.
f.
OConnor (dissenting): Not everything that happens in the
courtroom is state action.
g.
Scalia (dissenting): This adds another complexity to the system.
One more responsibility for the courts. Peremptories are often
used to assure a diverse jury.
Final judgments
A.
Rule 13
33

1.

B.
C.
D.

Rule 13(a)
a.
Pleading shall state as counterclaim any claim which arises out of
same transaction or occurrence as opposing partys claim and
does not require presence of third parties over which court cannot
acquire jurisdiction.
b.
Pleader need not include claim if at the time action was
commenced it was the subject of another pending action, or the
opposing party brought suit upon claim by attachment or other
process by which court did not acquire jurisdiction to render a
person judgment on that claim, and that the pleader is not stating
an counterclaim under this rule.
2.
Rule 13(b): Pleading may state as counterclaim any claim against an
opposing party not arising out of the same transaction or occurrence.
3.
Rule 13(c): Counterclaim may or may not diminish or defeat the recovery
sought by the opposing party. May claim relief exceeding amount or
different in kind from that sought in pleading of opposing party.
4.
Rule 13(e): Claim which matured or was acquired after serving a pleading
may with permission of court be presented as a counterclaim by
supplemental pleading.
5.
Rule 13(f): When justice so requires, pleader may with leave of court
assert counterclaim omitted by oversight, inadvertence, or excusable
neglect set up the counterclaim by amendment.
6.
Rule 13(g): Pleading may state cross-claim against co-party arising out of
transaction or occurrence that is subject matter either of original action or
counterclaim therein or relating to any property that is subject matter of
original action.
Article IV, 1: FF&C by each state to laws, records, and judicial proceedings of
every other state.
1738: Federal courts shall give FF&C to acts, records, and judicial proceedings
of the states.
Res judicata: Claim preclusion
1.
Requirements:
a.
Same claim
b.
Same parties
c.
Valid, final judgment
d.
On the merits
2.
Same claim
a.
Efficiency
i.
Code pleading systems use a restrictive core operative
facts or same evidence/primary right test.
a.
Frier v. City of Vandalia (7th Cir 1985)
1.
Ps car was towed by the city because it
violated a city ordinance. P refused to pay
fines and filed a replevin action to get it
back, in state court. Lost. P then filed a
1983/due process claim in federal court.
Claim precluded?
2.
Same evidence/underlying claim test v.
transactional test.
3.
Yes, precluded. Involve same core
operative facts.
34

ii.

3.

The federal courts use a same transaction test.

a.
Restatement (2nd) of Judgments 24: Transaction
is defined pragmatically. Consider whether facts
are related in space, time, origin, or motivation;
whether they form a convenient trial unit; whether
their treatment as a unit conforms to the parties
expectations or business understanding or usage.
b.
Goldberg consider opportunity to be heard/values
of system.
iii.
Rush v. City of Maple Heights (OH 1958): P sues for
property damage after running into a pothole. After she
wins, she files another suit for personal injuries. Precluded
because theyre the same tort arise from the same
transaction.
iv.
Semtek Intl Inc. v. Lockheed Martin Corp. (US 2001):
Diversity federal judgment has same preclusive effect as if
that judgment had been rendered in state court. Apply
preclusion law of state where court sits.
b.
Consistency
i.
Martino v. McDonalds System, Inc. (7th Cir 1979)
a.
P and D had a consent decree (court-approved
settlement with findings of fact) regarding Ps
breach of a non-compete agreement; P then filed
an antitrust action against D regarding the noncompete agreement.
b.
Counterclaim exception: when there is no
compulsory counterclaim rule, and it could have
been raised in the first lawsuit. (Suppose a lawsuit
ends in early stages. Judicial economy is not
obstructed by allowing the other cause of action to
proceed.)
c.
Precluded because its a direct attack on the
previous judgment, even though theres no
compulsory counterclaim rule.
Against same parties
a.
Searle Brothers v. Searle (UT 1978)
i.
In divorce action, property S was granted to W to even out
distribution. In this action, sons claimed that S was a
partnership with H, and that they were entitled to their
share of it.
ii.
Ps interest in the property wasnt identical to Hs and their
interests werent represented in the prior action (couldnt
be joined). Thus, theyre not precluded.
iii.
Dissent: Actively participated in lawsuit but asserted no
claim for themselves.
iv.
Note: Three situations usually result in binding a nonparty
to the results of a lawsuit:
a.
Substantive legal relationships:
1.
Successive owners of property.
2.
Decedents and their survivors (for injuries
and wrongful death, respectively).
35

4.

5.

6.

3.
Beneficiary-trustee. Heirs-executors.
4.
Mother-child NOT considered the same.
b.
Express agreement to be bound by the decision.
1.
E.g., A and B are passengers in car driven
by C, which gets in accident. Bring lawsuits
against C. A agrees to be bound by courts
determination of Cs liability in Bs suit if C
doesnt contest extent of injuries.
c.
Instances of procedural representation:
1.
Guardians ad litem appointed to represent
minors or incompetents.
2.
Class actions.
3.
Virtual representation.
After a valid, final judgment is entered
a.
Usually, when a judgment is appealed, it still has preclusive effect.
b.
In federal courts, its when the trial court rules.
c.
In CA, its when the supreme court rules.
On the merits
a.
Obviously met if there was a jury trial.
b.
But what if suit was dismissed for partys misbehavior?
i.
Dismissal would be futile if party could refile.
c.
What about a 12(b)(6) dismissal?
i.
Yes. Because of the ease of amendments and the lax
pleading requirements, see Rule 41(b).
ii.
But some states dont have this rule.
d.
Gargallo v. Merrill Lynch, Pierce, Fenner & Smith (6th Cir 1990)
i.
P owed money to D; D sued Pcounterclaimed for
fraud/churning; refused to comply with discovery requests.
Counterclaim dismissed with prejudice. (State court
action.) P then filed securities law claim in federal court.
ii.
Dismissal for res judicata reversed. State judgment cannot
have preclusive effect when state court doesnt have
jurisdiction over claim (federal exclusivity for securities
claims). So even though this was on the merits, it cant be
given preclusive effect.
Limits on claim preclusion
a.
Restatement (2nd) on Judgments 26: Exceptions to claim
preclusion:
i.
First judgment was plainly inconsistent with fair and
equitable implementation of statutory or constitutional
scheme, or it is the sense of the scheme that P should be
able to split his claim.
ii.
For substantive policy reasons, P is given option to sue
once for total harm, or to sue from time to time for
damages incurred to date of suit, and chooses latter
option.
iii.
P can show with clear and convincing evidence that
preclusion policies overcome for an extraordinary reason,
a.
Such as the apparent invalidity of a continuing
restraint or condition having a vital relation to
personal liberty
36

b.

E.

Or the failure of the prior litigation to yield a

coherent disposition of the controversy
Collateral estoppel: Issue preclusion
1.
Requirements
a.
Same issue of fact or law
b.
Fully litigated and determined
c.
After a valid, final judgment
d.
Essential to the judgment
2.
Same issue of fact or law
a.
Must consider procedures under which an issue is decided
criminal v. civil v. administrative. Different procedures make
different issues.
3.
Is actually litigated and determined
a.
Illinois Central Gulf Railroad v. Parks (IN 1979)
i.
Ds train collided with Ps. P1 recovered for personal
injuries. P2 then sued for loss of consortium of P1.
ii.
Jury verdict for D. Was it based upon contributory
negligence or minimal evidence? Court says that we
should assume the latter since there is not enough
evidence of the former.
b.
Evidence outside of the record may be used to establish what
issues were actually decided in the previous litigation.
4.
By a valid and final judgment (entered pursuant to Rule 54)
5.
Determination is essential to the judgment.
a.
Restatement (2nd) of Judgments 27, Comment i: When there are
two or more alternative grounds for a decision, none should have
preclusive effect in a subsequent suit.
b.
(Party may be deterred from appealing because theres something
else to uphold the case on and determination in alternative may
not have been as carefully considered.)
c.
But: Comment o: If appellate court upholds trial courts decision,
preclusive effect. Conclusive as to only the determinations the
court upholds.
6.
Between which parties?
a.
Principle of mutuality has essentially eroded in issue preclusion.
Extend so the victim has a full and fair the full and fair
opportunity to litigate the matter in the first suit.
b.
Non-mutual offensive issue preclusion
i.
Parklane Hosiery Co. v. Shore (US 1979)
a.
In stockholders class action, allegations that Ds
(corporation and its officers) issued a materially
false and misleading proxy statement.
b.
SEC filed basically the same suit and prevailed. Ps
moved for partial SJ on relitigating the issue.
c.
NMOIP does not promote judicial economy like
NMDIP does. Also NMOIP is unfair to Ds who, say,
have less at stake in the first lawsuit and may put
up a non-spectacular defense as a result.
d.
When P could have easily joined in the earlier
action NMOIP should not be allowed.

37

Issue preclusion is not repugnant to the 7th

Amendment.
f.
Here, Ps couldnt be joined in the first action and D
had a full and fair opportunity to litigate his
defenses in the first action. Issue precluded.
g.
United States v. Mendoza (US 1984): Parklane
doesnt apply to the US.
ii.
State Farm Fire & Casualty Co. v. Century Home
Components (OR 1976)
a.
Fire started allegedly due to Ds negligence. Over
50 actions for recovery due to the fire were
initiated. Some Ps won, others lost; they attempted
to issue preclude liability issue by taking advantage
of winning verdicts.
b.
When there are inconsistent determinations in
pending actions, it would be patently unjust to
preclude the losing party from relitigating the issue.
iii.
Restatement (2nd) of Judgments 29: Factors to consider
in whether a party should be allowed to relitigate:
a.
Procedural opportunities
b.
Joinder in first action
c.
Inconsistency
d.
Compatibility with administrative scheme
e.
Special relationships in one action
f.
Prejudice of interests
g.
Reconsideration of law issue, or
h.
Other compelling circumstances.
c.
Non-mutual defensive issue preclusion: Invented by Traynor in
1942; generally accepted since mutuality was abolished. P chose
to file the lawsuit.
Limits on issue preclusion
a.
Restatement (2nd) on Judgments 28: May relitigate when:
i.
Party against whom preclusion is sought could not seek
review of first action as a matter of law.
a.
E.g., criminal acquittal.
ii.
Issue is one of law and two actions involve claims that are
substantially unrelated and a new determination is
warranted in order to take account of an intervening
change in the applicable legal context or otherwise to avoid
inequitable administration of the law.
iii.
New determination of the issue is warranted by differences
in the quality or extensiveness of the procedures followed
in the two courts or by factors relating to the allocation of
jurisdiction between them.
iv.
Party against whom preclusion is sought had significantly
higher burden of persuasion in initial action with respect to
that issue, the burden has shifted to his adversary, or the
adversary has a significantly heavier burden than he had in
the first action.
v.
There is a clear and convincing need for a new
determination of the issue because of:
e.

7.

38

a.
b.
c.

VI.

The potential adverse impact of the determination

on the public interest or the interests of persons not
themselves parties in the action
Because it was not sufficiently foreseeable at the
time of the initial action that the issue would arise in
the context of a subsequent action, or
Because the party sought to be precluded as a
result of the conduct of his adversary or other
special circumstances, did not have an adequate
opportunity or incentive to obtain a full and fair
adjudication in the initial action.

Settlement and ADR

A.
Rule 16
1.
Rule 16(a): In any action, court may order unrepresented parties and
attorneys to appear before it for a conference(s) before trial for such
purposes as:
a.
Expediting disposition of action.
b.
Establishing early and continuing control so that case will not be
protracted because of lack of management.
c.
Discouraging wasteful pretrial activities.
d.
Improving quality of trial through more thorough preparation.
e.
Facilitating settlement.
2.
Rule 16(b): After receiving 26(f) report, court shall enter scheduling order
that limits time to join parties, file motions, and complete discovery. May
also include modifications on time limits for disclosures, dates for
conferences, and any other matters. Shall be made as soon as
practicable but in any event within 90 days of Ds appearance and within
120 days after complaint has been served on D.
3.
Rule 16(c): Any conference may consider and take appropriate action on:
a.
Formulation and simplification of issues.
b.
Obtaining admissions of fact and documents (to avoid
unnecessary proof).
c.
Avoidance of unnecessary proof and of cumulative evidence.
d.
Appropriateness and timing of summary adjudication.
e.
Control and scheduling of discovery.
f.
Identification of witnesses and documents.
g.
Advisability of referring matters to a magistrate or master.
h.
Settlement.
i.
Form and substance of pretrial order.
j.
Disposition of pending motions.
k.
Need for special procedures.
l.
Order for separate trial.
m.
Presenting evidence that would be basis for judgment as a matter
of law.
n.
Reasonable limit on time allowed for presenting evidence.
o.
Other matters which may facilitate the goals of the rules.
4.
Rule 16(d): Conference shall be held as close to trial as is reasonable.
Formulate plan for trial and program for facilitating admission of evidence.
Unrepresented parties and at least one attorney conducting trial must
attend.

39

5.

B.

C.

D.

E.
F.
G.

Rule 16(e): After conference, court shall make order indicating the action
taken.
6.
Rule 16(f): If party or his attorney fails to appear, follow an order, or is
substantially unprepared, etc., court may upon motion or its own initiative
make whatever orders are just, including the orders specified in Rule 37
and expenses.
Early options to trial: ADR Act of 1998
1.
Early neutral evaluation: Evaluators are typically volunteer lawyers or
magistrate judges.
2.
Nonbinding arbitration.
3.
Summary jury trial (usually < 8 jurors): Present abbreviated case and jury
returns nonbinding verdict.
4.
Consent decrees: Basically letting someone else do your homework.
Matsushita Elec. Industrial Co. v. Epstein (US 1996)
1.
Two class-action securities violation lawsuits against D were filed. One
settled in state court, which didnt have SMJ (federal exclusivity). Does it
have preclusive effect on the first one?
2.
Must follow states preclusion rules. These indicate that there is no
fundamental right to litigate a federal claim in a federal court. The first
judgment does have preclusive effect.
Fiss: Against settlement: Settlement is bad because:
1.
Imbalance of power. But judgment aspires to an autonomy from those
inequalities.
2.
Settlements are not always voluntary; there are putative representatives,
contractual obligations. Rule 23 leaves approval to the judge.
3.
Judgment is not necessarily the end of the process; and settlement
generally impedes vigorous enforcement.
4.
The purpose of adjudication is to serve societal ends; it uses public
resources and uses public officials. When parties settle, society gets less
than what appears.
Some studies suggest that trial is better for Ps v. corporate Ds than ADR.
Resnik: Trial as error: Trial has become the exception; the special docket
problem.
Confidentiality agreements
1.
Kalinauskas v. Wong (DNV 1993)
a.
P sued D for sexual discrimination. Sough discovery from T, who
had a confidential settlement with D on a similar claim.
b.
Allowing full discovery into Ts settlement would discourage similar
settlements.
c.
But not doing so would allow buying witnesses off and her
deposition is likely to lead to relevant evidence.
d.
Deposition permitted. There is much in common with their cases
and P has attempted to acquire the information from other
sources. But it cannot touch the substantive terms of her
settlement.
2.
Is litigation bilateral (between the parties) or a triangle (the public interest
is a factor too)?
3.
Gillers: With secrecy, society doesnt find out what its paying for.
4.
Epstein: Abandoning secrecy will reduce the cost of filing lawsuits. Some
secret settlements are there for a good reason e.g., trade secrets.

40

H.

Abandoning secrecy would discourage companies from creating new

products, as liability would increase.
Arbitration
1.
Arbitration permits parties to shape the procedural and substantive laws
they want to follow in resolving their dispute. They may also choose their
decisionmaker.
2.
Six kinds: binding, non-binding, mandatory, voluntary, pre-dispute
agreement, and post-dispute agreement to arbitrate.
a.
Professor dislikes binding, mandatory, pre-dispute arbitration. The
national preference for arbitration puts the Rules in danger.
3.
Federal Arbitration Act allows for enforcement of arbitration agreements in
federal courts. 9 USC:
a.
2: Arbitration agreements are valid, irrevocable, and enforceable
as a matter of federal law, except for the reasons in law or equity
for the revocation of any contract.
b.
3: If a party nonetheless starts a lawsuit, court shall on
application of one of the parties stay the trial until arbitration
completes, unless the applicant is in default in arbitration.
c.
4: If another party refuses to arbitrate and the underlying dispute
would provide federal courts with jurisdiction, the party suffering a
loss from it will have the ability to seek in a district court an order
direction that arbitration proceed as provided in the agreement.
4.
Historically, Supreme Court had an aversion to mandatory arbitration of
statutory claims. In the1980s, however, court enforced arbitration
agreements covering claims under securities-related acts and RICO (civil
provisions). Court now accepts arbitration agreements. Sometimes
arbitration agreements conflict with statutory schemee.g., if congress
mandates a judicial forum to resolve disputes arising under the statute.
5.
Floss v. Ryans Family Steak Houses, Inc. (6th Cir 2000)
a.
Ps applied for jobs at Ds restaurants but were rejected.
Arbitration clause in application. Did Ps waive rights to file suits
under ADA, FLSA, etc.?
b.
Third-party arbitrator with whom clause contracted Ps gave the
arbitrator full discretion to change rules without Ps consent and to
follow whatever rules it wanted.
c.
For an agreement to be acceptable, there must be consideration.
d.
The arbitrators promise is illusory, and thus does not provide
consideration, because it can alter any rules and procedures
without notification or consent. No waiver.
6.
Lyster v. Ryans Family Steak Houses, Inc. (8th Cir 2001)
a.
Same situation but involving sexual harassment. After
termination, P filed complaint with EEOC and received right to sue
letter.
b.
Is it an unconscionable adhesion contract?
i.
Undue harshness in terms of contract?
a.
Insufficient evidence here.
c.
It is an arbitrable claim. D is entitled to order compelling P to
arbitrate.
7.
Third wave in arbitration: Agreements still widely accepted but some
weariness about them. One court rejected an agreement because it was
blatantly one-sided. Other courts have rejected agreements because the
41

VII.

forum is not as hospitable to the claim as a court. One form of

inhospitability is a limitation on remedies; another is requiring P to pay
half of the fees when the government would normally pay all.
8.
Andrews: Predictable costs in medicine mandatory arbitration. Kaiser
contracts upheld.
9.
WSJ article: Some contracts contain jury waiver clauses if an arbitration
clause is stricken. GA & CA have held these clauses cant be enforced.
Personal jurisdiction
A.
Personal jurisdiction: Courts power to render a judgment binding on a resident of
another forum.
B.
Two primary themes:
1.
Movement from rules to standards.
2.
Personal jurisdiction is like tofu it picks up every jurisprudential flavor
and fad that surrounds it.
C.
Pennoyer and its progeny
1.
Pennoyer v. Neff (US 1877)
a.
N hired M but failed to pay him. M was in Oregon but D did not
reside there. M obtained a default judgment against N in Oregon;
Ns land there was seized. M purchased the land and promptly
sold it to P. N then sued P for ejectment.
b.
Due Process requires that P be personally served or make a
voluntary appearance. But this isnt the main point. The main
point is power. States are sovereigns.
c.
Personal jurisdiction can be acquired in two ways:
i.
In personam: Over the person.
a.
Necessary when money judgment or injunctive
relief sought. Sufficient for ownership issues.
b.
Presence and service in forum state.
1.
Actual presence.
2.
Constructive presence.
c.
Consent
1.
Actual (e.g., waive 12(b)(2) motion, show up
in court w/o a special appearance)
2.
Constructive (e.g., motorist driving through
state).
ii.
In rem: Over property. Must attach.
a.
Available for deciding ownership of property when
one cannot obtain in personam jurisdiction.
b.
But may also be used for claims unrelated to
property. (Quasi in rem.)
c.
If non-residents have no property in the state, then
it cannot exercise jurisdiction over them.
d.
The court must attach property before the action.
e.
Two types:
1.
Type 1: Dispute over property to determine
who has better title.
2.
Type 2: Acquiring jurisdiction over a nonresident.
f.
Seizure of property
1.
Tangible
2.
Intangible (e.g., debts)
42

2.

3.

g.
Status (divorce).
iii.
Notice (feathered out by Mullane)
d.
Limitations:
i.
Marriage and the like: State may authorize proceedings to
determine status of one of its citizens towards a nonresident, even if it is made without notice or process to
non-resident.
ii.
Corporations: State may require non-resident entering into
a partnership or association within its limits, or making
contracts enforceable there, to appoint an agent or
representative in that state to receive service of process
and notice in legal proceedings, or a place where such
service may be made, or a public officer designated for
that purpose.
iii.
Consent: Can consent to jurisdiction (by contract).
e.
Doctrine of collateral attack: D may in some cases attack in a
second proceeding a judgment rendered without jurisdiction. (No
FF&C required for judgments made without jurisdiction.)
f.
Four types of jurisdiction:
i.
Specific jurisdiction: Few contacts with the state that are
highly related to the subject of the lawsuit.
ii.
Specific and general jurisdiction: Many contacts with the
jurisdiction; highly related to the subject of the lawsuit.
iii.
General jurisdiction: Many contacts with the jurisdiction
that are unrelated to the lawsuit.
iv.
No jurisdiction: Few contacts with the jurisdiction; unrelated
to the lawsuit.
Problems with the Pennoyer scheme:
a.
Grace v. MacArthur (EDAR 1959): Served in plane flight.
b.
Hess v. Pawloski (US 1927): D (CA) got into accident in MA and
went back home. Statute dictated that implied consent to
jurisdiction is given by driving on highways upheld.
c.
Harris v. Balk (US 1905)
i.
D owed P (NC) money and P owed E (MD) money. D
traveled to MD from NC. E served D with process and MD
court entered judgment saying that D should pay debt to E,
not P. P challenged this order.
ii.
Court upheld order. State can acquire jurisdiction over
persons whenever debtors are present in that state by
attaching the debts.
iii.
Abandoned in Shaffer.
So this was about power, consent, and notice. Later expansions:
a.
Power: jurisdiction.
b.
Consent: designating agent, etc.
i.
Host states can place conditions on foreign corporations.
a.
Presence has also been used: corporations have
to either consent or be present. Present when you
conduct a certain level of activity there.
ii.
Implied consent of individuals: use of states services, such
as highways, amounts to consent.
c.
Notice: Personal service of process.
43

4.
D.

In many state systems and older cases, D could raise challenge to

jurisdiction by making a special appearance.
International Shoe and Mullane
1.
Milliken v. Meyer (US 1940)
a.
Domicile is sufficient to bring absent defendant within reach of
states jurisdiction by means of substituted service.
i.
Is service reasonably calculated to give actual notice of
proceedings and opportunity to be heard?
a.
If yes, then traditional notions of fair play and
substantial justice are satisfied.
ii.
Is not dependent upon continuous presence in the state.
2.
International Shoe Co. v. Washington (US 1945)
a.
D was incorporated in another state but provided door-to-door
selling with some customers in WA. D was not in compliance with
WAs unemployment tax laws. Notice was served on a salesman.
b.
Whether due process has been satisfied depends upon the quality
and nature of the activity in relation to the fair and orderly
administration of the laws which it was the purpose of the due
process clause to ensure.
c.
Doing business (using its privileges) in a state may give rise to
obligations.
d.
Ds operations in WA establish sufficient contacts with WA to make
it reasonable and just to permit state to enforce obligations D has
incurred there.
e.
Test is whether notions of fair play and substantial justice are
satisfied. + Relational/contextual analysis.
f.
Black (dissenting): If the corporation has anything to do with a
state, then theres jurisdiction. Doesnt want discretion for judges.
g.
General jurisdiction: Substantial contacts in state to make it fair to
assert jurisdiction over claims unrelated to those contacts.
h.
Specific jurisdiction: Contacts fall short of general jurisdiction so
jurisdiction over only claims related to contacts.
3.
Mullane v. Central Hanover Bank & Trust Co. (US 1950)
a.
In settlement of accounting with state, D notified all of the
beneficiaries via newspaper ad (in compliance with state statute).
Appellant objected to notice procedures.
b.
Mere gestures do not satisfy due process. Notice must be
reasonable given the practicalities and peculiarities of the case,
and reasonably calculated to apprise interested parties of the
pendency of an action and afford them an opportunity to raise their
objections.
c.
The statutory notice here satisfies due process for the
beneficiaries whose locations are not known but is insufficient for
those whose locations are known because it is not reasonably
calculated to reach those who could be easily informed by other
means at hand.
d.
The means employed must be such as one desirous of actually
informing absentee might reasonably adopt to accomplish it.
e.
Application of test:
i.
Known addresses: Attempt to mail it.
ii.
Unknown: Publication notice is okay.
44

a.

E.

But do you have to make a reasonable effort to find

out where they are? It depends on the
circumstances of the case.
f.
Mullane was later applied to in rem actions.
The remnants of Pennoyer and the conflict over International Shoe
1.
How much of Pennoyer survives? Pennnoyer is power-limiting and
International Shoe & Mullane protect individual rights.
2.
Shaffer v. Heitner (US 1977)
a.
P filed a derivative suit in OR against Ds, directors/executives of a
corporation, because Ds allegedly got the company into
unnecessary liability. P moved to sequester Ds stock, in DE.
b.
Ds jurisdictional objections rejected in DE courts because it was a
quasi in rem proceeding and so contacts dont matter.
c.
Marshall: But the Pennoyer scheme is no longer valid.
International Shoe should be read broadly and applies as the
jurisdictional law.
d.
Perhaps Ds are subject to DEs substantive law, but because they
have no contacts in that state, it is the inappropriate forum.
e.
Brennan (dissenting): Have the Ds voluntarily associated
themselves with the state? (Different approach to minimum
contacts.)
f.
Anti-Cybersquatting Consumer Protection Act: In rem jurisdiction
where registrar of domain names is located.
g.
Carolina Power & Light Co. v. Uranex (NDCA 1977): Garnishment
proceeding in CA may continue even though there is arbitration in
NY because it is not on the meritsits to secure the NY
determination.
3.
Burnham v. Superior Court (US 1990)
a.
P married W in WV, moved to NJ, and then separated. Agreed
that W would have custody of children; intended to move to CA. P
would not accept the terms of the divorce he and W had
previously agreed upon; W filed for divorce in CA. P made special
appearance in CA after briefly seeing his kids in SF and being
served.
b.
P attempted to rely on Shaffer. Scalia argued that Shaffer meant
that quasi in rem jurisdiction was really in personam jurisdiction.
c.
Jurisdiction based on physical presence alone constitutes due
process because it is a tradition in the system that continues to
define traditional notions of fair play and substantial justice.
d.
Pennoyer still lives; the other cases should be interpreted
narrowly.
e.
Brennan (concurring): Tradition is not dispositive. By being
physically present, D avails himself of benefits of state. Need to
be in state for substantial amount of time. Apply International
Shoe / due process factors here, D availed himself of benefits by
being there 3 days.
f.
Rowe thinks B, not S, is correct.
g.
Note: Neither opinion is controlling; only 4 votes for each opinion +
Stevens opinion.

45

h.

F.

G.

Later cases held that although a casual individual visitor may be

subject to general jurisdiction, Burnham does not apply to
corporations.
Forum selection clauses
1.
Carnival Cruise Lines v. Shute (US 1991)
a.
P injured on Ds ship. Forum-selection clause on ticket contract
required P to go to FL.
b.
Blackmun: Clause upheld. P benefits from the clause by reduced
ticket prices.
i.
The Bremen (US 1972): Forum selection clauses are
prima facie valid. (Freely negotiated forum clause upheld.)
c.
Cruise line has special interest in limiting fora in which it has to
litigate a claim.
d.
No evidence that this clause was included with bad-faith motive
(of discouraging litigation).
e.
Stevens (dissenting): Clauses like this are typically product of
disparate bargaining power.
Specific jurisdiction after International Shoe
1.
Three general requirements:
a.
Relatedness: Transaction in question must have some relation to
the forum.
b.
Purposeful availment: D made gesture toward state. Dispute as to
whether this means intent or knowledge.
c.
Fair play and substantial justice factors: Is it part of the minimum
contacts analysis, a separate test (Asahi), or a sliding scale
(Burger King)?
2.
McGee v. International Life Insurance Co. (US 1957)
a.
P (C) had a mail-order life-insurance policy with D (TX). He
renewed it every year in response to letter sent by D. P was only
customer in CA. Where can they litigate over suicide clause?
b.
Black: Trend of expanding permissible scope of state jurisdiction
over foreign corporations and other nonresidents.
c.
Seems to rely on fact that D took affirmative action toward CA.
Also, P would be seriously disadvantaged if D doesnt fall within
CA jurisdiction. Jurisdiction established.
3.
Hanson v. Denckla (US 1958)
a.
Dispute over estate of Mrs. D. Established trust in DE and later
moved to and died in FL. Can FL acquire jurisdiction over DE
trustee?
b.
Warren: No. Trustee never committed any acts in FL, trust co.
never had an office in FL, etc. Ps unilateral actions arent
enough.
4.
Keeton v. Hustler (NH 1984)
a.
D (OH corp.) sold magazines in all states but only a few in NH. P
(NY) allegedly libeled in magazine. (Statute of limitations had run
in all states but NH.)
b.
NH has jurisdiction because D sells magazines in NH.
5.
World-Wide Volkswagen Corp. v. Woodson (US 1980)
a.
Ps (NY), as they were driving through OK, another car struck
them, causing a fire severely burning P1 and her children.

46

b.

6.

7.

Sued local dealer (NY), manufacturer (Germany), national

distributor (NY), and regional distributor (incorporated in NY &
distributes parts to NY, CT, and NJ).
c.
Ds challenged in personam jurisdiction, which was denied.
d.
White: Manufacturer and national distributor knew they sold cars
in OK. Jurisdiction there.
e.
But not for the regional distributor or local dealer. Ds do nothing in
OK. And foreseeability of use in OK cant be a criteriontoo
overreaching. No contacts, ties, or relations with OK; no
purposeful availment, etc. So no jurisdiction here.
f.
Brennan (dissenting): Ds knew that an automobile is not a
stationary object. Convenience to P and location of evidence
(both OK) are key.
Asahi Metal Industry Co. v. Superior Court (US 1987)
a.
D was injured in motorcycle crash; filed products liability suit. D1
(Japan) sold parts to D2 (Taiwan); D2 knew his products were sold
to CA, but D1 claims he didnt know that.
b.
Reasonableness factors:
i.
Burden on D
ii.
Interests of forum state
iii.
Ps interest in obtaining relief
iv.
Interstate judicial systems interest in obtaining most
efficient resolution of controversies
v.
Shared interests of several states in furthering
fundamental substantive social policies.
c.
This would seriously burden D and P isnt even a resident of CA
so CA doesnt have much of an interest in the action. Thus, no
jurisdiction here.
d.
OConnor: Due process requires that D purposefully direct himself
at forum state. (4 justices)
e.
Brennan: Due process only requires that D knows hes directing
himself at a forum state (i.e., injecting goods into stream of
commerce). (4 justices)
f.
Circuit split as to which test to adopt.
Burger King Corp. v. Rudzewicz (US 1985)
a.
D (MI) opened up BK in MI. Ps HQs in FL but regional office in MI
also dealt with D; D went to FL for manager training. P terminated
D after violation of agreement. Proceed in FL?
b.
Brennan: Yes. D knew he was affiliating with an enterprise based
in FL, negotiated with people in FL, and franchise agreement
provided that all disputes would be in FL and resolved under FL
law. D availed himself of benefits and protections of FL laws, so
FL courts have personal jurisdiction.
c.
Concerns about making Ds in small purchases/claims get hauled
into another state are not present here.
d.
So this is a sliding scale: Lots of contacts, fair play is less
important. Not a lot of contacts, fair play is much more important.
e.
Stevens (dissenting): Principal contacts were with MI office and P
chose the forum. Its just unfair.
f.
Diamond HealthCare of Ohio, Inc. v. Humility of Mary Health
Partners (4th Cir 2000): P (VA) contracted with D (OH),
47

H.

approaching D in OH; most services were to be performed in OH

and law governed contract. All paperwork passed through VA. P
sued for breach of contract. VA doesnt have jurisdiction.
8.
Pavlovich v. Superior Court (CA 2002)
a.
D (TX) lived in IN during college and founded website there that
linked to other websitesconducted no businessthat posted
code cracking DVDs. No relations whatsoever to CA. Sued in CA
by code owner for posting trade secrets.
b.
Effects test for defamation/libel: Can sue for defamation based on
effects of defamation in forum state (D knows effects of
defamation will be felt in that state).
i.
Here, the connection is too tenuous. Holding that there is
jurisdiction would create overreaching liability. D didnt
know P was a CA corporation until he was sued.
c.
Sliding scale analysis for internet: At one end are sites which
clearly conduct business over internet, at the other are sites where
D has just posted information on a passive website. In middle are
sites which have interactive information (exchange information
with host computer). Whether to exercise jurisdiction in those
cases depends on level of interactivity and nature of exchange of
information that occurs on site.
i.
No interaction here.
General jurisdiction
1.
Individuals: Domicile. Corporations: Incorporation/principal place of
business.
2.
LLBean/MMBean hypo:
a.
L thinks M is infringing on its copyright. M files suit in CA seeking
declaratory judgment. Jurisdiction over L?
b.
Suppose L has 6% of its sales online in CA.
c.
Many courts have ruled, yes, this is enough for general
jurisdiction. (No evidence of contacts related to the lawsuit.)
d.
Usually something more is required like massive manufacturing
plants, or company headquarters, or incorporation in the state, or
something else showing a substantial "presence." 6% of US sales
and a few mouse clicks coming from California, I suggested, is a
bit short for general jurisdiciton, although as I said, some courts
have (unfortunately) gone this way.
3.
Coastal Video Communications Corp. v. The Staywell Corp. (EDVA 1999)
a.
In copyright infringement declaratory suit, P (VA corp.) and D (DE
corp. with PPOB CA). D sells some of the disputed products in VA
and over the internet.
b.
D has established online storefront that is available to every VA
resident. Most reliable indicator of nature and extent of Ds
contacts is amount of sales generated. P directed to seek
discovery.
4.
Gator.com Corp. v. L.L. Bean, Inc. (9th Cir 2003)
a.
Interactive website, soliciting of business in CA, etc. establish
consistent and substantial pattern of business relations.
i.
Is it random, fortuitous, or attenuated? No.

48

ii.

VIII.

Sliding scale test: Party must do business over internet

and the internet business contacts with forum state must
be substantial or continuous and systematic.
a.
Must approximate physical presence.
iii.
Limited by reasonableness.
b.
CA can assert jurisdiction here.
I.
Service of process
1.
Rule 4
a.
Rule 4(a): Requirements for summons. Court may allow all
summons to be amended.
b.
Rule 4(c): Service may be effected by any person who is not a
party and who is at least 18 years old. P may request that US
marshal do it.
c.
Rule 4(d): D who waives service does not thereby waive and
objection to venue or jurisdiction of court. D who before being
served with process returns a timely waiver (within at least 30
days or 60 if D addressed outside US) shall not be required to
serve answer until 60 days after date on which request for waiver
was sent or 90 says if D is addressed outside US.
d.
Rule 4(k): Service of summons or filing of waiver is effective to
establish jurisdiction over person of D:
i.
Who could be subjected to general jurisdiction there;
ii.
Who is party joined under Rule 14 or 19 and is served at
place within US and not more than 100 miles from place
from which summons issues;
iii.
Who is subject to federal interpleader jurisdiction under
1335; or
iv.
When authorized by statute of US.
v.
If exercise of jurisdiction is consistent with constitution and
US laws, it is also effective to establish personal
jurisdiction of any D who is not subject to jurisdiction of
courts of general jurisdiction of any state, in claims arising
under federal law.
e.
Rule 4(m): Service of summons and complaint must be made
within 120 days of filing complaint, or court may dismiss action
without prejudice on its own initiative or by motion. If P shows
good cause for failure, court may extend period.
2.
Rule 5: Rules for serving papers on a party.
J.
Long-arm statutes
1.
CAs long-arm statute: Jurisdiction may be exercised on any basis not
inconsistent with CA or US constitution.
2.
Other statutes are more restrictive, like NY and FLs: base it on specific
behaviors, like tortfeasors.
Subject matter jurisdiction
A.
Subject matter jurisdiction: Power of a court to hear a certain kind of case.
B.
The Constitution establishes the outer limits of SMJ; for a court to have SMJ,
there must be a Constitutional and statutory grant.
C.
Article III, section 1: Congress need not establish lower courts; Supreme Court is
only mandatory court.
D.
Article III, section 2: Judicial power shall extend to:
1.
All cases arising under federal laws, Constitution, or treaties;
49

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

E.

F.

All cases affecting ambassadors and other public ministers/consuls;

All cases of admiralty and maritime jurisdiction;
Controversies to which US shall be a party;
Controversies between two or more states;
Between a state and citizens of another state;
Between Citizens of the same state claming lands under grants of a
different state;
8.
Between a state or citizens thereof and foreign states, citizens or
subjects.
Challenging SMJ
1.
12(b)(1) v. 12(b)(6) to challenge case that may not arise under federal
law: If there is an arguable basis for federal jurisdiction, consider it as a
12(b)(6).
2.
Generally, if a party fails to challenge jurisdiction in one suit, it cannot later
be attacked in another. But there is an exception: Kalb v. Feuerstein (US
1940): In bankruptcy case, when state court has no jurisdiction, no
preclusive effect on federal courts; may make the collateral attack.
3.
If SMJ and personal jurisdiction are challenged, court does not have to
decide on basis of SMJ because it will have narrowest effect. Trial courts
have discretion in handling their dockets. (Ruhrgas AG v. Marathon Oil
Co. (US 1999)).
Federal question jurisdiction
1.
Osborn v. Bank of the US (US 1824): Even the slightest federal ingredient
satisfies Article III.
2.
1331: Original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the US.
3.
Louisville & Nashville Railroad v. Mottley (US 1908)
a.
Ps were given a lifetime pass on Ds railroad; congress later made
lifetime passes illegal. Ps sought specific performance of their
contract.
b.
Arising under: when Ps statement of his own cause of action is
based upon federal law, not some anticipated defense to his
action.
c.
Well-pleaded complaint rule: Federal claim must appear as part of
Ps original statement of his cause of action. Cannot consider
anything unnecessary to the claim.
d.
No jurisdiction here (no diversity either).
e.
Plain text of rule/congressional intent v. administrative concerns.
4.
Skelly Oil Co. v. Phillips Petroleum Co. (US 1950): Declaratory judgment
by a potential D in another lawsuit against the P in a matter of purely state
law does not establish arising under jurisdiction.
5.
Ideological question: How available should federal courts be to people?
a.
Neuborne: Federal judges are smarter, less subject to political
pressure/have the ivory tower syndrome, more likely to listen to
the Supreme Court, etc. So its better to have federal claims
heard in federal court.
b.
Rubenstein: Actually, more recently, state courts have been more
receptive to gay rights claims. They see them in family court. But
perhaps this isnt incompatible with Neuborne gay issues are
group equality claims, which state courts seem more receptive
to, but Neuborne was talking about civil liberties claims.
50

G.

Diversity jurisdiction
1.
1332: Original jurisdiction of all civil suits where matter in controversy
exceeds $75,000, exclusive of interests and costs, between:
a.
Citizens of different states;
b.
Citizens of a state and citizens/subjects of a foreign state;
c.
Citizens of different states and in which citizens or subjects of a
foreign state are additional parties;
d.
Foreign state, as plaintiff and citizens of a state or different states.
e.
Alien admitted to US for permanent residence is citizen of state in
which he is domiciled.
f.
If it is finally determined that P is entitled to less than the required
amount, court may deny him costs and/or impose costs on him.
g.
For purposes of this section and 1441, corporation is citizen of
state in which it is incorporated and state of its principal place of
business.
i.
Courts have looked at a corporations nerve center where
executives and administrative functions are controlled; they
have also looked at the muscle, where the everyday
business functions are performed. Some courts look at
both. Generally if theyre in different places, go with the
nerve center.
h.
Legal representative of estate of decedent shall be deemed to be
a citizen only of the same state as the decedent.
2.
Strawbridge v. Curtiss (US 1806): Complete diversity required by 1332.
3.
National Mut. Ins. Co. v. Tidewater Transfer Co. (US 1949): Citizens of
DC are citizens of a state.
4.
Redner v. Sanders (SDNY 2000)
a.
P is citizen of US residing in France. Ds are residents of NY. P
claimed that he had jurisdiction under citizens of state and citizens
of foreign state.
b.
No jurisdiction as P originally stated. P attempted to respond by
saying that he had connections with CA. But hes not domiciled
there. Dismissed for lack of SMJ.
c.
Diversity is determined by when the action commences, even if
the P moves to another state.
5.
1359: No jurisdiction when parties have collusively or improperly joined
parties to get diversity jurisdiction.
6.
Saadeh v. Farouki (DC Cir 1997)
a.
P (alien/Greece) sued D (MD resident/citizen of Jordan) over a
loan. While suit was going on, D became citizen of US.
b.
No SMJ here. The 1988 amendment (resident alien = citizen of
state where he resides) was intended to contract diversity
jurisdiction. Read literally, it would expand it here. There is no
citizen of one state in this suit; its alien v. alien.
c.
Note: The 3rd Circuit has disagreed about the policy of the 1988
amendment.
7.
Hawkins v. Masters Farms, Inc. (DKS 2003)
a.
There is no diversity jurisdiction when decedent sues D (KS).
Decedent was a citizen of MO, and went back there occasionally,
but lived in KS with his girlfriend, then wife and kids, and there
were no signaled plans to move back to MO.
51

b.

H.
I.

Test: Domicile: Intent to remain and physical presence. Miss.

Band of Choctaw Indians v. Holyfield (US 1989)
8.
The argument against diversity:
a.
Large part of federal courts caseload. Useless unless it serves a
vital function.
b.
But it doesnt serve a vital function. There is no prejudice in state
courts anymore.
9.
Amount in controversy
a.
To reject it, it must be proven to a legal certainty that claim is really
less than for jurisdictional amount to justify dismissal. St. Paul
Mercury Indemnity Co. v. Red Cab Co. (US 1938).
b.
Generally cant rely on punitive damages to bring you up when
you have very low actual damages (e.g., a small cut on your
forehead). Salmi v. D.T. Management, Inc. (NDIL 2002).
c.
Injunctions: At least 4 approaches:
i.
Value to P
ii.
Cost to D of complying
iii.
Cost or value to party invoking federal jurisdiction
iv.
Or any of the above if it yields jurisdictional amount.
d.
Aggregation
i.
If P has 2 or more unrelated claims against single D, can
aggregate.
ii.
If 2 Ps each have claims against a single D, may not
aggregate if claims are considered separate and distinct.
a.
E.g., joint owners of property.
iii.
If 2 Ps are suing one D and only one has claim that meets
statutory limit, then only the one P can sue in federal court
(and second one may seek supplemental jurisdiction).
iv.
If there are multiple Ps and/or Ds, and they have a
common undivided interest and single title or right, then
the value of the total interest will be used.
v.
Class actions
a.
At least some members must be able to satisfy
amount.
b.
Zahn v. International Paper. Co. (US 1973): Each
class member must satisfy jurisdictional amount.
c.
But more recent courts have held that only the
representatives have to satisfy it.
e.
Permissive counterclaims, but not compulsory ones, must satisfy
the jurisdictional amount. Unclear what happens when
counterclaim is >75K but Ps claim isnt.
10.
Exception to diversity: Family law matters/domestic relations. Akenbrandt
v. Richards (US 1992)
a.
1738A: Criteria for interstate FF&C/modification of child custody
determinations when there is diversity.
11.
Class actions: Supreme Tribe of Ben Hur v. Cauble (US 1922): Only
consider citizenship of named parties for diversity.
1257: Interpreted broadly: Final decisions by the court of last resort in a state
are reviewable in the USSC if there is a federal question involved.
Interpleader: 1335
1.
Original jurisdiction in interpleader (or cases of that nature) if:
52

a.

J.

K.

It is filed by someone who possesses more than $500 worth of

something in dispute, and
b.
Two or more adverse claimants of diverse citizenship are claiming
or may claim to be entitled to that property, or to any benefits
arising from it, and
c.
P has deposited the money/property with the court.
Removal jurisdiction
1.
1441
a.
1441(a): Any action which could have been filed in federal court
but was filed in state court can be removed by the D (or all Ds, if
there are multiple Ds cannot disagree) to the district court
division where the action is pending.
b.
1441(b): Suits with 1331 jurisdiction shall be removable without
regard to citizenship of the parties, but all other suits shall be
removable only if none of the Ds is a citizen of the state in which
action is brought.
c.
1441(c): 1331 cases which are joined with separate, independent,
and non-removable claims: Whole action may be removable and
district court may determine all issues therein or in its discretion
may remand all matters in which state law predominates.
d.
1441(d): Bench trial in actions a foreign state D removes to federal
court.
e.
1441(e): Special rules.
f.
1441(f): Federal court under removal jurisdiction may hear claims
even if state court didnt have jurisdiction over them.
2.
1446
a.
1446(a): D(s) who want to remove shall file notice of removal,
signed pursuant to 11, containing a short and plain statement of
the grounds for removal, along with all process, pleadings, and
orders served upon D(s).
b.
1446(b): Notice of removal shall be filed within 30 days after Ds
receipt of copy of initial pleading setting forth claim for relief upon
which the action is based, or within 30 days after service of
summons, whichever period is shorter, or amended pleading that
makes a non-removable case removable (except theres a oneyear limit for cases that would be under 1332 jurisdiction).
3.
1447
a.
1447(c): Motion to remand the case based on any defect other
than lack of SMJ must be made within 30 days after filing of
removal notice. Remand order may require payment of just costs
and actual expenses incurred as a result of the removal.
b.
1447(d): Remand order is not reviewable (on appeal or otherwise)
unless case was removed under 1443.
i.
1443: Removal for defendant (wronged) in cases
implicating civil rights (including criminal prosecutions).
4.
Trying to tinker with the jurisdictional amount in controversy before
judgment is entered wont work. Rogers v. Wal-Mart Stores, Inc. (6th Cir
2000).
Supplemental jurisdiction
1.
1367

53

a.

2.

3.

1367(a): Except as provided in (b) and (c), there is supplemental

jurisdiction over claims that are so related that they are part of
same case or controversy under Article III over which there is
original federal jurisdiction. Includes claims involving joinder or
intervention of additional parties.
i.
Note: This overrules Finley (US 1989), in which Scalia
ruled that pendent party jurisdiction is unacceptable.
b.
1367(b): When it would be inconsistent with 1332 requirements,
no supplemental jurisdiction over claims by P against people
joined under Rules 14, 19, 20, and 24, or by persons proposed to
be joined as Ps under 19, or seeking to intervene as Ps under 24.
c.
1367(c): May decline to exercise supplemental jurisdiction if:
i.
Claim raises novel or complex state law issue.
ii.
Claim substantially predominates over claim(s) over which
there is original federal jurisdiction.
iii.
District court has dismissed all claims over which it has
original jurisdiction, or
iv.
There are other compelling reasons in exceptional
circumstances.
v.
Note: This codifies Gibbs discretionary factors, below.
Some debate as to whether its discretionary anymore.
d.
1367(d): After a pendent state law claim brought under (a) is
dismissed in federal court, it can be refiled within 30 days in state
court, even if a state statute of limitations has expired, unless a
state statute provides for a longer period.
United Mine Workers v. Gibbs (US 1966)
a.
P filed S conspiracy claim and F FLRA violation claim.
b.
Brennan: S and F claims must derive from common nucleus of
operative facts. That is, they are co closely related that they are
part of the same case or controversy under Article III.
c.
This case is eligible for federal jurisdiction, but its within a district
court judges discretion to determine whether it will be heard there.
d.
Factors:
i.
Judicial economy
ii.
Fairness to litigants
iii.
If federal claims are dismissed before trial, then state ones
should be as well
iv.
If state issues substantially predominate
v.
Jury confusion in treating divergent theories of legal relief
Three kinds of supplemental jurisdiction:
a.
Pendent
i.
P brings F claim against D and seeks to bring S claims
against him as well.
b.
Ancillary
i.
Claims arising out of same transaction, over which there is
no independent basis for F jurisdiction, that are brought
after initial complaint is filed.
a.
Judicial economy/FRCP goal of resolving
everything at once v. limited federal jurisdiction
ii.
Examples

54

a.
b.
c.

P brings F claim against D and D (compulsory)

counterclaims with an S claim.
P brings 1332 claim against D1; D1 impleads
nondiverse TPD under 14. Proper only if there is
ancillary jurisdiction.
P brings 1331 claim against D1; D1 impleads TPD
(same state as P); P makes claim against TPD.
Proper only if ancillary jurisdiction.

c.

L.

Pendent party
i.
Adding a jurisdictionally insufficient claim against one D to
a jurisdictionally proper claim against another D.
ii.
Examples
a.
P brings F claim against D1 and seeks to bring S
claim against D2.
4.
Problems with 1367 as drafted v. as intended
a.
1367(b):
i.
P1 (CA) files 1332 claim and joins under 20 P2 (CA) with
$20k claim against same D (NY). Obviously not allowed
(no aggregation), but language of 1367(b) would permit it,
since no claim is being brought against someone joined.
ii.
Class actions: Zahn does not permit aggregation, but 1367
does not mention class actions. So read literally 1367
seems to overrule Zahn. Circuit split on this; TBD by
Supreme Court this term.
5.
Decision tree:
a.
Are any claims subject to F jurisdiction?
i.
No: Go to S court.
ii.
All: Go to F court. 1367 not needed.
iii.
Some, but not all: Go to step 2.
b.
Is original basis of lawsuit 1332?
i.
No: Go to step 3.
ii.
Yes: 1367(b) applies.
a.
Is it the P who seeks supplemental jurisdiction?
1.
No: Go to step 3.
2.
Yes: Continue to the next subpart.
b.
Joinder is then problematic and presumptively
unavailable.
1.
If P seeks to pursue claims that do not
independently meet F jurisdiction
requirements, then supplemental jurisdiction
is NOT available.
2.
If persons joined as Ps under 19 or 24 seek
to pursue claims that do not have an
independent jurisdictional basis, then
supplemental jurisdiction is NOT available.
c.
Are all claims part of a single case or controversy under Article III?
i.
No: No supplemental jurisdiction.
ii.
Yes: Court must analyze 1367(c) factors to determine
whether supplemental jurisdiction should apply.
1333: Original, exclusive jurisdiction in admiralty cases or cases involving
prizes brought into US or their condemnation.
55

M.

Erie problem
1.
Federal law
a.
Rules of Decision Act: 1652: Laws of several states are rules of
decision in civil suits in the district courts when they apply, except
as provided or required by Constitution, treaties, or acts of
Congress.
b.
Swift v. Tyson (US 1841): There is a federal common law. (Good
old Swifty)
c.
Erie Railroad v. Tompkins (US 1938)
i.
Swift hasnt quite yielded the benefits expected from it.
a.
Discrimination by non-citizens against citizens.
ii.
Unless the matter is governed by the constitution or by
acts of Congress, state law controls. There is no federal
general common law.
d.
Klaxon Co. v. Stentor Elec. Mfg. Co. (US 1941): Apply conflicts of
law principles of forum state in diversity cases.
e.
Federal common law which persists:
i.
Admiralty/maritime law.
ii.
Statutory mattersfilling in gapse.g., antitrust.
a.
Textile Workers Union of America v. Lincoln Mills
(US 1957): Federal common law authorized under
Taft-Hartley Act.
f.
Just like International Shoe and the Rules, Erie is about equality.
Erie clears the path for Brown because it clears federal dockets
and indirectly encourages federal courts to focus on civil rights.
2.
Four views:
a.
Frankfurter: Outcome-determinative test.
b.
Brennan in Byrd v. Blue Ridge: Balancing test.
c.
Henry Hart & Harlan: Affecting primary private conduct. Rejected
in Hanna.
d.
Hanna: See chart. Anything vaguely procedural is a matter of
federal law.
3.
Procedures
a.
Hanna v. Plumer (US 1965)
i.
In diversity suit, P served according to federal rules rather
than state rules.
ii.
This is a Rules Enabling Act question. Rule 4(d)(1) passes
muster under that.
iii.
Erie is not a check on the federal rules. Otherwise it would
disembowel the constitutions grant of power over federal
procedure or congress attempt to exercise that power in
the enabling act. See flowchart below for the rest of it.
4.
Flowchart
a.
First question: Is it pertinent? If no valid, relevant federal law,
Rules of Decision Act commands that state law be applied.
b.
Second question: If so, is it valid?
c.
Source of procedural law:
i.
Constitution
a.
Always valid. Trumps any contrary state law. State
law is irrelevant.
b.
Result: Apply Constitution.
56

ii.

IX.

Act of Congress
a.
Valid if Constitutional.
1.
Determined by Arguably procedural test.
a.
If it could be classified as either
substantive or procedural, then it
meets this test.
b.
Valid federal law preempts state law. State law is
irrelevant.
c.
Result: Apply valid statute. If invalid, Rules of
Decision Act states to apply state law.
iii.
Federal Rule promulgated pursuant to the Rules Enabling
Act
a.
Valid if:
1.
Constitutional and
2.
Meets requirements of Rules Enabling Act
a.
Rule of practice and procedure
b.
Does not abridge, enlarge, or modify
any substantive right
b.
Valid federal rule preempts contrary state law.
c.
State law may be relevant in determining whether
the federal rule has modified a substantive right.
d.
Result: Apply federal rule, if valid. Rules of
Decision Act states that state law applies if the rule
is invalid.
iv.
Federal common law practice or policy
a.
Valid if:
1.
Constitutional,
2.
Consistent with federal law,
3.
And satisfies Hannas twin aims test:
a.
Discouragement of forum-shopping
b.
Avoidance of inequitable
administration of the laws
b.
Valid federal practice preempts contrary state law.
c.
But state law may be relevant in determining
federal practice will give rise to twin evils (Erie
designed to eliminate).
d.
Result: Apply valid federal policy. If invalid, apply
state law (RDA).
Complex litigation: Joinder of claims
A.
Rule 18(a): A party asserting a claim may join (either as independent or alternate
claims) as many claims, legal, equitable, or maritime, as the party has against an
opposing party.
B.
Note: This requires that the party has a proper, related claim asserted against
that person. You cant just randomly join unrelated claims; you can only do that
after you have a good claim.
C.
Rule 13 revisited: Very permissive.
D.
1367 revisited: Considers three variables:
1.
Basis of original jurisdiction over case
2.
Identity of party seeking to invoke supplemental jurisdiction.
3.
Rule authorizing joinder of the party or claim over whom supplemental
jurisdiction is sought.
57

E.

F.

G.
X.

XI.

Plant v. Blazer Financial Services (5th Cir 1979)

1.
P defaulted on a promissory note to D, but filed a Truth in Lending Act suit
and prevailed on that. Is the claim about the underlying debt a
compulsory counterclaim?
2.
Tests re/whether claims arise from same transaction for Rule 13:
a.
Issues of fact and law raised by claim and counterclaim largely the
same?
b.
Would res judicata bar the subsequent suit on the Ds
counterclaim absent the compulsory counterclaim rule?
c.
Will substantially the same evidence support or refute Ps claim as
well as Ds counterclaim?
d.
Logical relation between claim and counterclaim? (5th Cir test)
i.
Loose standard which tries to avoid multiplicity of suits.
ii.
Arises from same aggregate of operative facts.
3.
But allowing the counterclaim to be joined here would undermine the TILA
enforcement scheme because they often exceed the value of the TILA
claim.
4.
But congress didnt insulate TILA claims from such counterclaims in
federal court. Theyre obviously interrelated, so its compulsory.
5.
Professor: Factors arent very helpful because they restate the issue. The
outcome of this case is contingent upon ones view of litigationbilateral
or public.
a.
What is the purpose of including attorney fees in TILA claims?
Deter/punish Ds? Encourage potential Ps to be private attorneys
general?
Rule 42
1.
Rule 42(a): When actions involving a common question of law or fact are
pending before the court, it may order a joint hearing or trial of any or all
the matters in issue in the actions; it may order all actions consolidated;
and it may make such orders concerning proceedings therein as may
tend to avoid unnecessary costs or delay.
2.
Rule 42(b): In furtherance of convenience or to avoid prejudice, or when
so doing would be conducive to expedition and economy, the court may
order a separate trial of any claim (cross-claim, etc.).
Class actions
1.
Three types of litigation: individual; committee; class.

Venue
A.
A brief note on venue: 1391(a): Venue in a diversity suit is:
1.
Wherever any D resides if all Ds live in same state;
2.
Where substantial part of events/omissions giving rise to claim occurred,
or substantial part of property that is subject of the action is situated; or
3.
Where any D is subject to personal jurisdiction at the time the action is
commenced, if there is no district in which action may be otherwise
brought.
Appeals
A.
Three levels of scrutiny:
1.
Questions of law: De novo: As if lower court never made the ruling.
2.
Questions of fact: Clear error: When the judge did not make a rational
inference.
a.
Very deferential; very difficult to get a ruling overturned.
b.
Mixed questions: Somewhere in between.
58

3.
4.

Matters of discretion (e.g., application of law): Abuse of discretion: Very

murky. Judge bases decision on factors hes not allowed to consider.
See 1291-5.

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