Académique Documents
Professionnel Documents
Culture Documents
iv) Minimum contacts analysis focuses on the time when the acted, not the time of the
lawsuit
(1) Parties who conduct activities in a state accept the risk that those activities give rise
to suits and understand that they may have to return to the state where the activity
was conducted to defend such suits
(2) COMPARE: Minimum contacts analysis applies whether or not is still acting in
the state at the time the suit is actually filed. Jurisdiction based on service of
process (Burnham v. Superior Ct. of California U.S. 1990) on served w/in a state
requires only that be present in the state at the time that the summons and
complaint are served upon her need not have any contact with the state at the
time of the events giving rise to the suit.
d) Purposeful Availment
i) To help define the quality and nature that make the contact sufficient to support
jurisdiction, many cases rely on the fact that the has purposely avail[ed] itself of the
privilege of conducting activities within the forum State, thus invoking the benefits and
protections of its laws. Hanson v. Denckla (U.S. 1958)
(1) must have made a deliberate choice to relate in some meaningful way to forum
state before she can be made to bear the burden of defending there
ii) World-Wide Volkswagen v. Woodson (U.S. 1980) concluded that the Audi dealer,
Seaway, had not purposely availed itself of the opportunity to conduct activities in OK,
although it could foresee that others would take its cars there
(1) Had not sold cars there, advertised there, cultivated OK customers, or deliberately
focused on OK as a market
(2) No direct benefit from OK activities sufficient to require it to submit to jur. there
iii) Keeton V. Hustler Magazine, Inc. (U.S. 1984) - purposely availed itself of the
opportunity to engage in in-state activities, by distributing magazines w/in the state
iv) Stream of Commerce Cases
(1) Out-of-state component manufacturer sells components to a manufacturer of a
finished product outside the state who then incorporates the component and
distributes the finished product into the forum state.
(a) Asahi Metal Industry Co. v. Superior Court (U.S. 1987) Ct split
(i) OConnors opinion rejected premise that mere awareness that the stream
of commerce may sweep goods into the state after they leave the s hands
suffices to satisfy purposeful availment; OConnor would require clearer
evidence that the seeks to serve the market in a particular state (design,
advertise)
(ii) Concurring Justices sending goods into the stream of commerce, at least in
substantial quantities, constitutes purposeful availment, whether or not the
original maker knows that the goods will be sold in a particular store or
cultivates customers there maker both foresees and benefits from such
sales
(iii)
Difficult to say where the law is today
1. 5 of the Asahi justices have stepped down
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(1) Original seller does not control subsequent flow of the stream but can foresee
(2) Asahi involved a component maker, a third-party , sold to a foreign corporation
(3) Single advertisement in a national magazine deliberate contact w/forum state, but
totality of circumstances weighs against jurisdiction
(4) 8 of Asahi justices found agreed once the deliberate contact is found, the Court must
consider whether it would be fair and reasonable under all the circumstances to take
jurisdiction
xi) Minimum contacts jurisdiction is based on the s deliberate decision to act in the forum
state for her own purposes
xii) Except for general in personam jurisdiction, is only subject to jurisdiction for claims
related to the in-state contacts
xiii) The may be sued in the state on this claim under the minimum contacts test
because it has purposefully conducted activities there, and the claim arises out of this
purposeful contact.
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(2) Even if an alien is domiciled in the U.S., she is still an alien for the purposes of
diversity analysis. Mas v. Perry (5th Cir. 1974)
iv) A case arising under federal law is a separate basis for federal subject matter
jurisdiction
v) may choose to bring the case in state ct even if it satisfies diversity requirements
(concurrent jurisdiction present except in patent, plant variety, and copyright cases for
which Congress has provided federal jurisdiction is exclusive)
vi) cannot gain diversity jurisdiction and then later add on home-state s
vii) Date for determining diversity is the date of filing suit, not of the incident
viii) Intent and residence must coincide at some time to establish a new domicile
ix) Domiciled where residence is current unless committed to moving elsewhere
d) Amount-in-Controversy Requirement
i) Rationale: keep minor cases out of the federal cts
ii) Problem: difficult to determine at the outset of a case
(1) no objective yardstick for lawyers to use in predicting the amount a jury will assess
for pain and suffering, emotional distress, or punitive damages
(2) Rule: a s good faith claim for more than the amount required controls, unless it
appears to a legal certainty that the claim is really for less (St. Paul Mercury
Indemnity Co. v. Red Cab Co. U.S. 1938)
(a) Heavily favors
(b) Makes sense because Congress has not provided that jurisdiction exists only
where the recovers > $75k requirement is that > $75k be in controversy.
(c) But is ineffective in keeping many types of diversity cases out of court
iii) Problem: how to measure the amount in cases involving multiple claims or parties
(1) Aggregation of damages rule: single may aggregate any claims he has against a
single to reach the sum but cannot add claims against different s or those of
another
(2) Exception: common undivided interests (joint owners of property)
(3) CAVEAT: traditional aggregation rules may be superceded by supplemental
jurisdiction
(a) So long as one satisfies the amount-in-controversy requirement, other s may
add their claims under supplemental jurisdiction
(b) In re Abbott Laboratories (5th Cir. 1995) upholding jurisdiction over a class of
members in a class action where a representative satisfied the amount-incontroversy requirement
e) Examples
i) No piggybacking: B can only sue with A if he could have sued alone in federal ct
(1) CAUTION: supplemental jurisdiction may still allow the suit (See caveat above)
(2) Split in lower federal cts as to whether 1367 authorizes supplemental jurisdiction
over certain claims
ii) Rule that s may aggregate claims against a single applies to claims for separate
losses, not to demands for the same damages based on different theories.
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iii) If, looking at the pleaded facts, it appears that the might recover > $75k, the
requirement is met. It is only where it is clear to a legal certainty that the definitely
will not recover that much on the claim he has asserted that the court dismisses for
failure to meet the monetary threshold.
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(1) Certain actions relating to interests in land which must be prosecuted in the county or
district in which the land is located
(2) Transitory action an action that is not a local action and may be brought in any
proper venue
f) Venue in Cases Involving Corporations
i) 1391(c) defines corporate residence as any district in which the corporation is
subject to personal jurisdiction
(1) Includes place of incorporation, extensive production facilities, minimum contacts
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Art. III, 2
DP (14th
amend.)
Statutory limit
(1) good argument for transferring if the claim did not arise in the state and s activities
are completely unrelated to the action before the court
iv) EE of a corporation: if negligence occurs in the course of work, it is a minimum contact
of the corporation because the contacts of the corporations agents while acting on its
behalf are attributed to the corporation
v) Transient personal jurisdiction (that obtained by service of process) does NOT apply
to corporations
vi) General in personam jurisdiction: rationale is that extensive corporate presence w/in
the state reduces the inconvenience of litigation and affiliates the corporation with the
state in such a substantial way as to make it fair to sue it there for any claim. If that
presence exists at the time the suit is brought, the rationale is satisfied.
vii) Same 3 rings must also be satisfied if a suit is brought in state court.
(1) Broad subject matter jurisdiction
(2) Venue analysis depends on that states statute
(3) Personal jurisdiction analysis likely to be the same no matter what ct system.
viii) Removal Analysis
(1) Case must have been w/in the original subject matter jurisdiction of the federal ct
(2) Removal barred if any is a citizen of the forum state
ix) In any state where the corporation does enough business to support general in personam
jurisdiction, the diversity and personal jurisdiction rings will be satisfied.
(1) However, venue will still only be proper in those districts in which it does business.
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(a) Instead adopted Holmess view that federal ct must look to the body with the
authority to make rules in choosing its rules of decision
(b) ignoring state common law rules invades rights reserved to the states under the
federal system of divided powers
ii) Erie Ct (Justice Brandeis) really overruled Justice Storys interpretation of the RDA (that
it not include state common law), rather than the RDA itself
e) Whats Easy about Erie
i) In diversity cases federal courts must apply the law that would be applied by the courts
of the state in which they sit their job is to apply state common law
(1) State law reigns supreme in most cases because there can be no other law (Hanna
v. Plumer U.S. 1965)
f) Examples
i) Erie held that the RDA require federal cts to apply state law whether judge-made or
statutory, in diversity cases, rather than following their own perception of the best rule.
(1) Rationale: the grant of jurisdiction over diversity cases in Article III is not a grant of
authority to displace state substantive rules of decision, but only to apply those rules
in a federal, presumably neutral form.
(2) Since only the state has power to make law on general tort issues, the federal ct must
apply the states law rather than creating its own law
(3) Source of applicable law is the state if it is not within legislative authority
(4) Erie policy and constitutional division of powers
ii) Supplemental jurisdiction authorizes a federal ct to entertain related state claims that
arise from the same facts as the federal claim
g) Ascertaining State Law
i) To determine state law, federal cts look to the state supreme ct
ii) Flexibility: federal judges must predict how the issue before them today would be
decided by the state supreme ct, if that ct decided the issue today (Standard)
(1) Look at all available data: states lower cts, trends, dicta, legislative developments
(2) Commissioner v. Bosch (U.S. 1967) a federal ct construing state law should give
proper regard to decisions of trial and intermediate cts, but that its job is to apply the
law as announced, or as it would be announced, by the states highest ct.
iii) Additional option: Certification
(1) Allows a federal ct faced w/a thorny issue to certify the issue to the state supreme ct
(2) Problems: lengthy, expensive, creates the anomalous situation of federal cts
determining the state supreme cts workload
h) Examples
i) Role of lower cts: follow the law established by the highest ct of the state, not to
speculate (may write an encouraging opinion): mandatory precedent
ii) Federal cts: may disregard state supreme ct opinions upon strong evidence
(1) Freedom to predict what the law will be opens up a narrow opportunity for
diversity s to choose more favorable substantive law despite Erie
(2) Result in state ct is likely to be dictated by mandatory precedent, but not in fed ct
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iii) State judges are not bound by federal judges (even appellate) predictions of what state
law will be: but is persuasive authority
iv) Federal district cts: normally bound to follow the precedents of their supervisory ct of
appeals
(1) In diversity cases, they guess at state law: makes sense to follow federal appellate
cts decisions because it will be overruled otherwise
v) Erie policy v. Finality of Judgments
(1) Not all diversity judgments are subject to revision once a state ct later addresses the
issue
(2) sometimes it is more important that a judgment be stable than correct
vi) State trial cts must follow the rule established by the appellate ct for that district
vii) Judge Shadur
(1) Northern District of Illinois
(2) Argues that the federal judges job is to assure that the suit comes out the same way
in federal ct that it would in state ct (Abbott Laboratories) Policy is to prevent
forum shopping for a better rule of law
(3) Most cts follow the Supreme Ct Predictive approach which Shadur calls illusory
(a) Few cases do get that far so, this approach will often yield a different
approach than that which the parties would obtain in state ct
(4) Very difficult to assure absolute uniformity in treatment w/in the two ct systems
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iii) What differences are sufficient to lead to inequitable administration of the laws?
(1) Discrimination
(2) Hanna Part Is modified outcome-determinative test is more narrow than Yorks
(3) A tough substance/substance distinction between the analyses of Hanna Part I and II
iv) What is the current status of Byrd?
(1) Very much alive: many lower federal cts rely on Byrds emphasis on the importance
of the federal interests as a factor in resolving conflicts under Hanna Part I.
h) Examples
i) York Frankfurter concluded that fed cts should follow state rules if the difference
between the state and the federal rules could be outcome determinative
ii) Byrd fed cts must follow state rules that define the rights and obligations of the
parties (substantive rights) which the federal govt has no authority to create
(1) Fed ct should generally defer to state rules in matters of form and mode
(procedure) if they are likely to be outcome determinative (for uniformity)
(a) Unless countervailing considerations require application of a federal rule
(2) Problem: does not specify what federal policies will outweigh the Erie/York policy of
assuring that diversity cases come out the same in state ct and federal ct
(a) Ex. Right to jury trial (yes)
iii) State Rule (or statute) v. FRCP Hanna Part 2 (arguably procedural test)
(1) FRCP applies unless invalid
(a) Unless abridges, enlarges, or modifies substantive rights (murky)
(2) Heavy presumption of validity accorded to FRCP (guide procedure, too)
(3) Rationale: fed govt has authority to regulate procedure in federal cts, including
matters can rationally be classified as procedural
(a) Ex. FRCP 15: an amendment will relate back if it would relate back under state
law
iv) State Rule (or statute or practice) v. Federal Judicial Practice Hanna Part 1
(1) Question is whether the twin aims of Erie would be compromised by allowing the
federal cts to ignore the state statute in favor of their usual practice (fortuity)
(a) Forum shopping
(b) inequitable administration of the laws
v) State Rule (or statute) v. Federal Law Hanna Part 1 (see above)
(1) In all these cases, it is the nature of the federal provision, not the competing state
provision, that determines the analysis.
(2) Issue is when federal law is valid and applies in federal ct
(a) Applicable if it governs the litigation and valid if it passes the Hanna Part 1 test
(3) Federal law will apply despite a conflicting state provision because it is the supreme
law of the land
(a) Must be constitutional
vi) State Rule (or statute) v. Federal Constitutional Provision Hanna Part 2 (see above)
vii) Be aware that the type and measure of damages recoverable is usually governed by state
law (no federal authority)
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i) When applying another states law, a state ct cannot make law for the other state and
has to engage in an Erie-type analysis of what the other states law is on the point
ii) Recent approaches are based on judgmental balancing of interests
(1) Ambiguous and involve a balancing of policy considerations
(2) More difficult to predict which states law a ct will use (slushy)
(3) can only try to forum shop
iii) Factors that might lead a state to apply its own law even though the incident took place
in another state
(1) Residence of the parities at the time of the accident
(2) Interests promoted in the application of a particular tort principle
(3) Place of the negligence that led to the accident
(4) Place in which the effect of the injuries is felt
iv) Strategic Considerations
(1) Locations of witnesses
(2) Convenience of
(3) Inconvenient for
v) A check on forum shopping: just because a ct decides to apply the law of another state, it
may not apply the law of the s state of choice
vi) If a states law is in the process of change, the federal ct may have more flexibility to
anticipate those changes than the state trial ct would.
vii) Must a ct, when choosing to apply the law of another state, apply the whole law of the
other state, including matters of procedure?
(1) No, judges would have to learn too many procedural systems (insupportable)
(2) To avoid this, the substance/procedure distinction has emerged in conflicts of law
doctrine as under Erie.
viii) Erie mandates application of state law in diversity cases, NOT wholesale
abandonment of federal procedure
(1) Where a valid Federal Rule covers an issue, it may be applied in a federal diversity
case despite contrary procedure in the state ct.
e) The Impact of Transfer
i) Practical reason: site of the accident and many witnesses and documents in a state
ii) What law to apply if the case is bounced to a transferee court: a change of venue does
not effect a change of law
(1) Honor the s forum-shopping choice rather than allow s to displace it through
transfer
(2) Determine what the choice of law rules for the transferor state are, and what states
law the courts of the transferor state would have chosen under that choice of law rule
(a) Then, under Erie, determine what the substantive law of that state is and apply it
f) Examples
i) A state ct has no authority to send a case to another states ct (autonomous ct systems)
(1) Different in federal ct because all federal cts are branches of same federal ct system
(2) Option: dismiss under forum non conveniens
(a) Ct may dismiss a case where the interests of justice indicate that it should be
litigated elsewhere
(b) Rationale: sometimes cases that are properly filed belong somewhere else
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(a) Promotes efficiency and consistency because the same underlying facts will be
litigated on the main claim and the cross-claim
(b) Optional
(4) Rule 13(h) authorized to bring in an additional party on a counterclaim, so long as
requirements of Rule 20(a) are met
(5) Combination of Rules 13(a) and (b) authorize any defending party to assert a
counterclaim against a party who has claimed against him
iii) Rule 18(a) broad and permissive: a party seeking relief from an opposing party may
join with his original claim any additional claims he has against that opposing party
(1) Authorizes a pleader to assert as many claims as he has against an opponent
(2) Applies to any party seeking relief against another party
(3) Can add totally unrelated claims once a proper claim has been asserted
(4) Rationale: once the parties become proper adversaries in a lawsuit they ought at least
to have the opportunity to resolve all their differences in one suit
d) Examples
i) Rule 20(a) does not require that the s seek recovery for exactly the same injuries or on
a joint interest [only requires (a) and (b) above)]
(1) Policy: efficiency and consistency goals (save time for parties, witnesses, and ct)
ii) Rule 20(a) does not require that the s seek recovery on the same theory
iii) CAUTION w/Rule 18(a): the rules of res judicata will force a to join all his claims
against a in a single action if the claims arise out of the same transaction or occurrence
iv) Counterclaim rules are written in general language to apply to all defending parties, not
just original s
e) Joinder rules do not provide a basis for subject matter jurisdiction they only govern who
may properly be made parties if the ct has jurisdiction.
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ii) Adopts the same standard as Gibbs: cases that arise out of the same nucleus of operative
facts as the proper federal claim
iii) Congress responded to Finley by providing the necessary statutory authority to hear the
related claims
e) Limits on Supplemental Jurisdiction
LOOPHOLE NOTES
11/15
i) 1367(a) grants supplemental jurisdiction in very broad terms
(1) requires that the ct have original jurisdiction over some claim before supplemental
jurisdiction can be invoked to add other claims
ii) 1367(b) preserves limits on ancillary jurisdiction
(1) supplemental jur. shall not extend to certain claims by s in diversity cases
(2) tries to catalogue various joinder possibilities under the Rules that would allow the
to circumvent the limits of the Strawbridge rule (suggested by Kroger)
(a) bars claims by s against impleaded parties (Rule 14)
(b) inconsistent w/jurisdictional requirements of 1322 that requires each to
meet the amount-in-controversy requirement independently
iii) 1367(c) codifies the second holding of Gibbs: gives the trial ct discretion to decline to
exercise pendent jurisdiction
f) Supplemental Jurisdiction Requires a Three-part Analysis
First, determine whether there is a
constitutional power under Article III, 2,
to hear the supplemental claim.
Second, ct must determine whether there
is a statutory grant of jurisdiction over the
related claim.
g) Examples
i) The importance of supplemental jurisdiction
(1) W/o it, would have a strong incentive to sue in state ct in order to have his entire
case resolved in one proceeding.
(2) Many federal law cases would be heard in state rather than federal cts, even though a
primary purpose of federal cts is to expound and develop federal law.
(3) , supplemental jurisdiction assures that s who prefer the federal forum will have
access to it.
ii) Gibbs: jurisdictionally insufficient claims are part of the same case if they arise out of
the same nucleus of operative facts as the federal claim.
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iii) CHECK for independent basis for subject matter jurisdiction and then for supplemental
jurisdiction
iv) Impleader claims must arise out of the same set of facts as the main claim to satisfy the
requirements of Rule 14 they will meet the common nucleus test of Gibbs and the
statutory test of 1367(a)
v) Supplemental jurisdiction extends to claims by or against other parties, even if the has
not asserted any jurisdictionally sufficient claim against the added party.
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(i) Would allow one citizen from a state to sue another in federal ct (evading the
complete diversity requirement of Strawbridge)
(ii) Rationale: supplemental jurisdiction should not provide a means of evading
the complete diversity requirement
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(4) May not always be easy to determine whether a complaint fails to state a claim at the
outset
d) Examples
i) Rule 12(g) provides that a who chooses to make a pre-answer motion must include in
that motion all of the 12(b) (and (e)) defenses she has at the time
(1) Any of the defenses that are omitted from the motion are waived w/the exception of
those preserved by Rule 12(h)(2) and (3)
(2) Rationale: prevents from nickel and diming the be repeated motions to dismiss
on different grounds
(3) Rule 12(h)(1) provides that these defenses are waived if
(a) (a) the makes a pre-answer motion and leaves them out, or
(b) (b) answers and leaves them out
ii) Rule 12(g) requires consolidation of 12(e) motions (for a more definite statement)
iii) Ambiguity in motion to dismiss for lack of subject matter jurisdiction
(1) Language of Rule 12(g) would support that motion is barred if not raised in first
response (because it is not an exception listed in 12(h)(2)), but
(2) Rule 12(h)(3) provides that the exception to subject matter jurisdiction may be raised
anytime
iv) Even if unable to determine whether venue is proper, rules require immediate assertion
of the defense
(1) Possible solution: move for extension of time to file a response (Rule 6(b))
v) Tactical advantages of moving to dismiss rather than answering
(1) may avoid, temporarily, the s allegations
(2) Answer requires response to substantive allegations in the complaint
(a) Rule 8(b) - must make admissions or denials
(b) Rule 8(c) - must raise any affirmative defenses
(c) Rule 13 must assert any counterclaims
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(a) Documents prepared in anticipation of litigation that contain information that can
reasonably be obtained through other means discovery barred
(b) Substantial need for the materials, and similar information cannot be obtained
through other means without substantial hardship ct may order production of
materials
(c) Opposing counsels thought process in preparing a case, such as legal theories or
litigation strategy (opinion work product) cannot be discovered
f) Discovery of Experts
i) Expert witness a person whose testimony, because of her specialized knowledge, skill,
experience, training, or education, will assist the trier of fact in understanding the facts
and reaching conclusions on the contested issues
ii) Testifying Experts
(1) May provide background information to help trier of fact understand the case
(2) May offer opinions on issues critical to the case
(3) Rule 26(a)(2) parties are required to disclose the names of their testifying experts
at least 90 days before trial, together with a report concerning their opinions and the
bases of those opinions, their qualifications, compensation.
(4) Rule 26(b)(4)(A) - testifying experts may be deposed as well.
(5) Rationale: broad trend toward liberal discovery experts cannot be effectively
cross-examined without the opportunity to conduct discovery concerning their
opinions and the bases for those opinions
iii) Non-testifying Experts
(1) Hired to help the parties understand the issues in a case
(2) Rule 26(a) does not require disclosure of the identity or opinions
(3) Rule 26(b)(4)(B) provides that a party may only seek discovery upon a showing of
exceptional circumstances
(4) Policy: non-testifying experts are fully involved in the preparation of a case for trial.
Allowing discovery from these crucial participants would allow counsel to delve
deeply into her opponents trial strategy, and would stultify open exchange between
counsel and her own experts.
iv) Rule 26(b)(1) testimony of experts is within the presumptive scope of discovery rule
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(4) Presumption: virtually any document that fits the broad relevance standard of Rule
26(b)(1) must be produced
(5) Not limited to documents also applies to tangible things such as samples, places,
tests on relevant items of evidence
iii) Parties resist document requests by construing them narrowly and by liberally invoking
privileges and other objections
(1) If such objections are asserted w/o a substantial basis, the responding party may be
sanctioned under Rule 37
(a) Rationale: the whole point of the privilege is to protect that information from
disclosure at all, not just disclosure at trial
v) Counsel for the deponent has the right to cross-examine
(1) May be important to clarify statements right away
(2) Necessary if a trial deposition rather than a discovery deposition
(a) Will be read into the record at trial in place of the witnesss live testimony
f) Physical or Mental Examinations (Rule 35)
i) Rule 35 authorizes physical or mental examination of parties whose condition is at issue
in the case
ii) Due to the intrusive nature of such examinations, parties must obtain a court order for a
physical or mental exam
(1) Standard: will be granted for good cause shown (Rule 35(a))
(2) Invoked to allow to obtain an independent medical examination of the in cases
involving physical injury
iii) Rule 35(b)(1) if a party does obtain an examination of another party under Rule 35, she
must provide a copy of the independent examiners report to the examined party if she
requests it
g) Requests to Admit (Rule 36)
i) Not really a discovery device, but a means of narrowing the scope of trial by eliminating
uncontested issues
(1) Matters that are admitted are deemed as established for purposes of the case (Rule
36(b))
ii) Rule 36 authorizes a party seeking admission of certain facts to send a request to an
opponent to admit those facts.
(1) Receiving party required to admit or deny the truth of the statements, or raise an
objection to the request
iii) Not always possible to rely on admissions to remove an issue from dispute
(1) Opponents will usually go as far as ethical constraints allow in refusing to admit
damaging facts
(2) If the admitting party has not thoroughly prepared, she may learn later that she
grounds to contest facts previously admitted, and move to withdraw the
admissions
(a) Policy: judges will grant the motion because they prefer to see cases resolved on
the evidence rather than on mistaken concessions of counsel
h) Automatic Disclosure (Rule 26, see caveat below)
i) Rule 26(a)(1) parties are required, at the outset of the case and without a request from
any other party, to disclose to other parties the names and addresses of persons with
relevant information, copies or descriptions of relevant documents and tangible
evidence, computations of damages with supporting documentation, and copies of
insurance contracts covering claims in the suit
ii) Rule 26(a)(2) parties must disclose the identities and reports of experts,
iii) Rule 26(a)(3) parties must disclose documents and depositions each party expects to
offer in evidence at trial
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iv) Rule 26(f) requires to parties to meet and confer about disclosure and subsequent
course of discovery
v) Rule 26(d) until the meet and confer, parties are barred from traditional discovery by
interrogatories, requests for documents, and depositions
vi) Rule 26(e) duty to supplement inaccurate or incomplete disclosures or discovery
responses
vii) Policy: speed the process of discovery and reduce its cost
(1) Remains to be seen whether automatic disclosure will work as designed
(a) Disclosure takes place primarily at the outset of the case, when the parties
knowledge of the case will be limited when they make initial disclosures
(b) Rule 26(e) has proved very difficult to enforce
(c) Critics claim there will be new battles about the sufficiency of disclosure, and the
rules may raise ethical conflicts between counsels duty to her client and to the
court under the disclosure rules
viii) Rules are somewhat radical
(1) CAVEAT: Rule 26(a) specifies that these requirements shall apply unless otherwise
stipulated or directed by order or local rule
(a) Authorizes each federal district to decide for itself whether to require automatic
disclosure
(b) Many districts have rejected it national uniformity of the FRCP has been
compromised
(2) Beginning Dec. 1, 2000, courts wont be able to opt out of early disclosure
requirements anymore.
(a) However, will only have to disclose evidence you will use to support your
claim/defense. Rationale: References to proportionality.
i) Discovery: Court Supervision and Sanctions (Rule 37)
i) In the cases of discovery rules, the consequences of failure to comply depends on your
opponent.
ii) If information is important, the opponent will likely move for an order to compel
discovery under Rule 37
(1) Rule 37(a)(2) must first confer informally w/opponent
(a) If informal means do not resolve the matter, the requesting party must move to
compel disclosure
(2) Rule 37(a)(4) if the motion is granted, the ct may order the noncomplying party to
pay the moving partys expenses and fees for the motion to compel
(a) Rule 37(a)(4)(C) ct may also enter protective orders defining the scope of
required discovery and barring unwarranted or harassing discovery
(3) Rule 37(b) if the party still does not respond adequately, the rule authorizes
sanctions
(a) Striking claims, taking disputed facts or claims as established, excluding
evidence, dismissing the action, or ordering payment of fees and expenses caused
by failure to comply
iii) Going to ct tends to absorb the parties resources, irritate the judge, leave counsel feeling
unsupported by the ct, and yield compromise positions that satisfy no one
(1) vast bulk of discovery disputes left unresolved by the parties
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(3) may plead specifically because it is more helpful to the ct and may trigger more
specific responses from the in his answer
iii) If did not allege an element because he has no support for his theory dismiss
iv) Rule 12(h)(2) authorizes to raise the objection of failure to state a claim in any
pleading, by motion for judgment on the pleadings or even at trial
v) Distinguish legal sufficiency of the claim from the factual issue of whether the
allegations are true factual issues cannot be resolved by 12(b)(6) motions
d) Summary Judgment Distinguished (Rule 56)
i) Purpose: allow early resolution of cases in which the meets the minimal burden to
plead the elements of a compensable claim, but cannot prove one or more of those
elements
ii) Summary judgment entry of judgment by the ct in favor of either the or the w/o
trial
(1) Before evidence is presented to the jury
iii) Standard: Appropriate only if the evidence before the ct demonstrates that there are no
disputed issues of material fact to be tried and that the moving party is entitled to
judgment on the undisputed facts (Rule 56(c))
iv) Motion challenges s ability to prove an essential element of his claim
(1) When the motion is made and adequately supported, must respond by producing
admissible evidence that tends to prove the challenged element (Rule 56(e))
(a) Such evidence would demonstrate that there is a genuine issue of material fact
as to the issue
(b) Burden to produce legally competent evidence upon which a jury could resolve
the factual issues in his favor
(i) If there is a genuine issue of material fact, the jurys role is to resolve it
(ii) The judges role is only to determine whether the parties evidence reveals a
factual dispute
(2) If countervailing evidence is produced by , SJ is denied
(a) SJ intended only to determine whether there are genuinely contested issues of
material fact, NOT to try the facts
v) Rationale: If there is no factual dispute for the jury to try, the jury would have no
legitimate basis on which to find for the . A verdict for him could only reflect
irrational decision-making. SJ avoids this risk, as well as the delay and expense of
trying unprovable cases.
vi) A motion for SJ may be supported by affidavits, depositions, answers to interrogatories,
admissions, and admissible documents (Rule 56 (c), (e))
(1) Materials are not always admissible at trial themselves, but they demonstrate that the
party has access to evidence that would be admissible and supports the claim
(2) Allegations in the pleadings are not admissible evidence (are only assertions as to
what the parties can prove)
e) Summary Judgment in Other Types of Cases
i) Cases in which parties agree on the underlying facts but disagree as to the legal
implications of those facts
(1) presents legal argument that the evidence satisfies an element
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(a) Moving party can force opponent to this effort w/o showing any of the contrary
proof he will produce at trial
(b) has recourse to Rule 56(f) allows ct to grant continuances to allow the
opposing party to develop the case
(i) Discretionary be ready to specify exactly what further discovery is
necessary in order to properly respond to the s Celotex motion
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no proof
for
X
Z
Y
burden of production
evidence evenly balanced
s proof so strong that any
has produced evidence
reasonable jury would have
to conclude
that is sufficiently persuasive
that has proved her case
that a jury, acting rationally,
could find that she has proved
each element of her case
Note: s burden of proof in a civil is case is that a
preponderance of the evidence favors her version of
the events. Evidence must fall to the right of the Z line
for to carry her burden of proof.
b) Arena for jury decision
i) Arena for legitimate differences of opinion as to the proper outcome (between the X and
Y lines)
(1) If reasonable minds can differ as to the result, the case is for the jury, not the judge
(2) Jury must be given the opportunity to consider the case, even though the judge
believes that the preponderance of the evidence favors the
c) The Motion for Judgment as a Matter of Law (JAML)
i) Cts have long provided procedural means for judges to take cases away from the jury if
the s evidence does not reach the magical X line
(1) No jury, acting rationally on the evidence before it could find for the allowing
the case to go to the jury invites irrational decision-making based on irrelevant or
prejudicial factors
(2) Judge has traditionally had the authority to guard against flawed verdicts by refusing
to send cases to the jury if there is no legitimate doubt as to which side should
prevail
(3) Motion may also be granted for s (if s evidence is so strong as to pass the Y line)
ii) Device: motion for judgment as a matter of law
(1) Traditionally known as motion for a directed verdict
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ii) Rule 50(a) motion for JAML may be appropriate as soon as the part has completed
presentation on a fact essential to the partys case
(1) Addresses judges power to enter a judgment in a case tried to a jury
(2) Modern tendency for judges to aggressively manage cases in order to speed their
disposition (Ex. Rule 16 authorizing scheduling and pretrial conferences)
(a) Judge can order that certain issues are tried first
(b) Policy: some lawyers feel this managerial approach unfairly encroaches on
their traditional prerogative to present their cases in their own way.
(i) But marked tendency is federal cts to curtail counsels autonomy in litigation
procedure in the interest of efficient resolution of cases
(ii) Rule 50 extends this practice to directed verdicts as well
iii) Credibility of witnesses
(1) Ct may not pass on issues of credibility in ruling on a motion for JAML
(2) If there is a legitimate conflict in the evidence, the jury must resolve it.
(3) Will be a jury issue UNLESS the ct concludes that the testimony is inherently
incredible
iv) Rule 50(a) compared to Rule 56
(1) Difference is essentially procedural
(2) Rule 50(a) motion is raised during the trial and decided on the basis of the testimony
and documentary evidence offered at trial
(3) Rule 56 SJ motion made before trial and determined solely on the basis of
documentary evidence such as depositions, interrogatories, and affidavits
(4) Many cts more reluctant to grant SJ (56) than JAML (50(a))
(a) Not unusual for ct to deny SJ but subsequently grant JAML for the same party
(b) Tend to give party opposing SJ benefit of the doubt by allowing the case to
proceed to trial
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ii)
iii)
iv)
v)
for
Evidence
Evenly
Balanced
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stronger evidence
Evidence too
weak to
support
rational
verdict for
A verdict for
is
supportable,
but against
clear weight
of the
evidence
A verdict for
is
supportable
but against
clear weight
of evidence
Judge
concludes that
evidence is so
compelling
that no
reasonable
jury could find
for (rare)
Judge may
Judge enters
order new trial directed
verdict or
j.n.o.v. for
ii) Rule 50(c)(1) trial judge confronted with a combined motion for JAML and MfNT
must not only rule on the j.n.ov. but must also make a conditional ruling on the
alternative motion for a new trial
iii) Ct of appeals can then address both issues at once in one consolidated appeal.
iv) Standard: must be some final judgment
f) Examples
i) may appeal judges combined ruling, even though new trial was conditionally
granted (Rule 50(c)(1))
(1) Allows appellate ct to fully dispose of both motions in a single appeal w/o remand
for post-trial decisions
ii) If Appellate Ct concludes judgment should have been granted for because s
evidence was too weak to get to the jury, it may enter JAML (j.n.o.v.) itself
(1) J.n.o.v. is a question of law that the appellate ct reviews de novo
iii) If Appellate Ct concludes JAML (j.n.o.v.) was properly denied and verdict was not
against the clear weight of the evidence will consider whether new trial should have
been granted due to legal error in the instructions
(1) Issue of proper rules for the jury is a question of law the ct of appeals decides de
novo.
iv) Assume won verdict, that seeks JAML (j.n.o.v.) on the basis that evidence was too
weak to support s verdict, and, in the alternative, a new trial on the ground that the
judge mistakenly excluded important evidence offered by . (p. 416)
Trial Court
Disposition of Appellate
Court
Agrees that j.n.o.v. proper,
but not new trial
Disagrees on both
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available)
Or have been represented by a party in the
prior action
4) Same parties
i) A judgment need not be right to preclude further litigation; it need only be final and on
the merits.
(1) If exclusion of evidence was improper in the first suit, appeal rather than relitigate
the same issue in a second suit (Moitie)
ii) Res judicata bars not only those claims that were asserted in the first suit, but also any
others arising out of that transaction or occurrence that could have been asserted but
were not. ( cannot just switch theories should include multiple theories in first
complaint)
iii) Cts generally reject relitigation for future damages for injuries surfacing after first
judgment
(1) (Policy: finality of judgments; Rule: must recover for all her damages in the
original action, w/ exception in some asbestos cases)
iv) Every potential who suffers injury from a transaction or occurrence has a distinct
claim for res judicata purposes
v) Separate breaches of contract in successive years are different occurrences that may be
sued on separately (if they could not have been raised in the same action)
vi) CHECK to see if jurisdiction has a compulsory counterclaim rule (Rule 13(a))
vii) Dismissal for lack of subject matter jurisdiction does not constitute judgment on the
merits.
viii) Summary judgment and JAML are considered to be on the merits.
ix) General rule: s in federal ct must assert their supplemental claims or lose them by
operation of res judicata.
x) Cases must be decided according to the law at the time of trial and not relitigated if that
law changes (appeal!; Moitie) would undermine RJ policies of judicial economy and
certainty of judgments
xi) Majority rule in federal cts: ct may not grant relief from judgment due to a change in
the substantive law once the period for appeal has passed
(1) But, if the law changes while the period for appeal is still running, many cts would
allow to seek relief from judgment on this ground.
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(b) Foreseeability of future suits from other s arising out of same accident
(c) Same ct (federal? State?): not likely to be procedural advantages in the second
suit that were not available in the first
(d) Absence of other factors suggesting unfairness
(i) Procedural system in second suit more flexible
(ii) More witnesses available in second suit that were unavailable in first
(iii)
deliberately decided not to join in order to get the advantage of
nonmutual collateral estoppel w/o taking the risk of losing on the issue in the
first action (burdens ct system w/additional litigation)
vi) Nonmutual estoppel cases always discretionary (full and fair opp. to litigate)
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