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PART ONE: CHOOSING A PROPER COURT

1) MINIMUM CONTACTS (p. 3)


a) Pennoyer v. Neff (U.S. 1877) - cannot bring suit wherever she wants
b) Personal jurisdiction for not from forum state based on minimum contacts test
i) International Shoe v. Washington (U.S. 1945) HELD that cts of a state may exercise
per. jur. over a if she has such minimum contacts w/the forum state that it would be
fair to require her to return and defend a lawsuit in that state.
(1) Corporation that chooses to conduct activities w/in a state accepts (implicitly) a
reciprocal duty to answer for its in-state activities in the local cts
(2) International Shoe decision discusses a spectrum of increasing contacts: NOTE: In
(a)-(d), only subject to jur. for claims arising out of those minimum contacts
(a) No contact w/forum state state has no authority to exercise personal
jurisdiction over , unless consents
(b) Causal or isolated contacts are insufficient to support jurisdiction
(c) Single acts, because of their quality and nature specific in personam
jurisdiction
(i) McGee v. International Ins. Co. (U.S. 1957) insurer reached into CA by
sending an offer there to reinsure a Californian
(ii) Gerken this is an early case; really an exception to the rule; Burger King
gives you a better idea of where the SCt is now
(d) Continuous but limited activity in the forum state specific jurisdiction (jur.
over claims arising out of that continuous activity)
(i) Burger King Corp. v. Rudewicz (U.S. 1985) ongoing business relationship
(e) General in personam jurisdiction very substantial contacts; may be sued
for any state claim, even one completely unrelated to his in-state activities
(i) Helicopteros Nacionales de Colombia (U.S. 1984)
(ii) SCt has not clearly indicated where the line falls between contacts that
support general in personam jurisdiction and those that support only specific,
minimum contacts jurisdiction
(iii)
Appropriate when s activities so substantial and continuous that she
expects to be subject to suit there on any claim and would suffer no
inconvenience from defending there.
ii) Rationale: performing certain acts in a state carries w/it predictable consequences,
including a duty to return to defend those acts in court
c) Guidelines in applying minimum contacts
i) Applies to individual as well as corporate s (Kulko v. Superior Court U.S. 1984)
ii) Limits in long-arm statutes on personal jurisdiction distinct from constitutional limit
imposed by minimum contacts test
iii) may have sufficient contacts with a state to support minimum contacts jurisdiction
there even though she did not act within the state (Calder v. Jones U.S. 1984
subject to personal jurisdiction in CA for allegedly defamatory article written in FL,
since article was to be circulated in CA)
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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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2. some cts continue to apply a fairly broad stream-of-commerce approach


based on World-Wide, and take jurisdiction in cases that OConnor would
not reach
3. other cts adopt OConnors view
4. IS CLEAR that if s contacts satisfy OConnors test, they will support
jurisdiction, since the other Asahi opinions require a lesser showing
(2) Manufacturer sells finished products to a wholesaler outside the state, the wholesaler
then resells to a retailer in the forum state, and the retailer resells to a consumer
e) Other Factors in the Jurisdictional Calculus
i) Interest of the forum state in providing redress to its citizens
ii) Interest of the in obtaining relief in a convenient forum
iii) Interest of the states in enforcing their substantive law or policy
iv) Extent of inconvenience to the if she is forced to defend away from home
v) Notes
(1) Burger King suggests that, where the has purposely directed its activities to the
forum state, jurisdiction is presumptively reasonable, and she will have to make a
compelling case that other considerations make the exercise of jurisdiction
unreasonable
(2) It is only when deliberate contacts exist between and the forum state that other
factors will be weighed in determining whether the exercise of jurisdiction would
comport with fair play and substantial justice
f) Examples
i) Personal jurisdiction rules are -oriented is the price s pay for deliberate efforts to
derive benefits from or conduct activities in a state
ii) SCt has chosen a narrow view of personal jurisdiction, focusing on the scope of the
activity of the seller (), rather than the predictable area of use by the buyer ()
iii) Jurisdiction must arise out of the s voluntary contacts w/the state, w/2 exceptions
(1) Transient jurisdiction permissible to obtain personal jurisdiction over an
individual by serving her with the summons in the state where the suit is brought
(2) General in personam jurisdiction
iv) Car accident is sufficient to support in personam jurisdiction motorists who use the
roads of a state should realize that this purposeful activity in the forum subjects other
drivers to serious risks, that people may be injured and sue
v) World-Wide Volkswagen rejected the rule of foreseeability that the seller of a portable
product is subject to nationwide jurisdiction, making the chattel his agent for service of
process
vi) may reach into the forum state by advertising/soliciting business
vii) Personal jurisdiction is NOT based on the most or the best contacts but on minimum
contacts
viii) may be subject to minimum contacts jurisdiction in more than one state for a claim
that arises from a transaction involving contacts with a number of states
ix) Jurisdictional doctrine is largely based on a common sense appraisal of what people
should expect
x) Stream of Commerce Example
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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) STATUTORY LIMITS ON PERSONAL JURISDICTION: Long-Arm Statutes (p. 23)


NOTE: did not include examples at end of chapter due to slight coverage of topic in class
a) Due Process (DP) clause of the fourteenth amendment to the Constitution imposes
fundamental limitations on the power of state cts to exercise jurisdiction over s
i) State may only assert jurisdiction over s w/significant to relation to forum state
(1) Domicile
(2) In-state Presence
(3) Consent to suit in that state
(4) Minimum contacts with the state that give rise to suit
ii) DP clause only defines outer bounds of permissible jurisdictional power, and state
legislature must actually grant power to its cts to exercise personal jurisdiction
(1) Ex. CA has a very expansive provision that is self-adjusting
b) Enumerated Act Long-Arm Statutes
i) long arm statutes authorize cts to exercise jurisdiction over s based on specific
types of contact with the forum state reach out to call nonresident s back into the
state to defend lawsuits
(1) tend to be liberally granted, as the lawsuits are usually invoked by s who live in
the state and prefer to sue at home
(2) CAUTION: some long-arm statutes may exceed their constitutional grasp
(3) All long-arm statues that base personal jurisdiction on specific enumerated acts
require that the claim sued upon arise out of the act itself (International Shoe)
ii) Specific categories of jurisdiction conveyed by the long-arm statute are to be interpreted
as liberally as the due process clause will allow

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3) CHALLENGES TO PERSONAL JURISDICTION (p. 41)


a) Cts of a state may not exercise judicial power over a unless that has submitted to the
jurisdiction of the courts of that state
i) May be subject to jurisdiction under the due process analysis on the basis of
(1) Domicile in a state
(2) In-state service of process
(3) Consent to jurisdiction
(4) Continuous or substantial contacts
(5) Minimum contacts that give rise to a particular cause of action
ii) Section explores options available to a such as
(1) Challenge in a court in which the original action is brought (rendering state)
(2) Challenge in another state where enforcement of the original judgment is sought
b) Challenging Jurisdiction in the Rendering State
i) Special appearance (state)
(1) allowed to appear before court at the beginning of the action for the sole purpose
of challenging its power to exercise personal jurisdiction over her
(2) may litigate the jurisdictional question w/o submitting to jurisdiction
(3) must take care not to raise any other issue: If she raises any objection or argument
that the court can construe as a defense on the merits, the court may conclude that
she has waived her jurisdictional objection thereby submits herself to jurisdiction
ii) Special appearance (federal)
(1) Rule 12(b)(2) - may appear before answering to the merits of the complaint and
object to personal jurisdiction
(a) may also raise other objections at the same time, w/o waiving the objection to
personal jurisdiction (Ex. Could also move to dismiss with 12(b)(6) motion)
(b) Rule 12(b) objection to jurisdiction must be raised immediately or lost
c) Challenging Jurisdiction in the Enforcing Court
i) may ignore the suit entirely risks entry of default judgment
ii) Money judgments against out-of-state s usually enforced by taking the judgment to a
state where the lives or owns property and then seeking a court order to authorize the
sheriff to sell s assets to satisfy the judgment
iii) Full Faith and Credit Clause (Article IV, 1)
(1) Requires courts of each state to honor the judgments of other states by entering
judgments upon them and allowing out-of-state creditors to use ct process to collect
(2) EXCEPTION: enforcing ct may always inquire as to whether the rendering state had
jurisdiction in the original action and refuse enforcement if it did not (Pennoyer v.
Neff U.S. 1877)
(a) Collateral attack - challenges the original cts jurisdiction in the enforcement
action rather than in the original suit
(i) EXCEPTION: may not challenge personal jurisdiction in the enforcement
action if she has already done so in the original action (collateral estoppel)

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4) DIVERSITY JURISDICTION (p. 55)


a) Federal courts hear limited categories of cases (U.S. Constitution, Art. III, 2)
i) Jurisdiction over all other sets of cases left to state courts
ii) Diversity jurisdiction cases between citizens of different states
(1) Subject matter jurisdiction defined by who the parties to the suit are, rather than the
subject matter of the underlying dispute
(2) Requirements: a diverse , claim for > $75k
(3) Rationale: framers fear that out-of-state citizens would suffer prejudice if they were
forced to litigate against local citizens in the local state cts
iii) Art. III authorizes Congress to create lower cts and to hear types of cases enumerated in
Article III, 2 (which authorizes jurisdiction over all diversity cases)
iv) 28 U.S.C. 1332 is narrower than Art. III. 2 it includes an amount in controversy
requirement
v) Strawbridge v. Curtiss (U.S. 1806) all s must be from different states than all s;
parties on the same side of the v may be co-citizens
vi) State Farm Fire & Casualty (U.S. 1967) - diversity is present as long as some opposing
parties to the action are diverse.
b) The Meaning of State Citizenship
i) Natural persons
(1) Domicile the state where a person has taken up residence w/the intent to reside
indefinitely
(2) Test: domicile w/subjective intent (plus physical presence if new domicile)
(3) the person has no definite intent to leave to make a home elsewhere; met as long as
the person has no definite plans to move at a particular time or upon the occurrence
of a particular event
ii) Corporations
(1) 28 U.S.C. 1332(c) provides statutory definition of state citizenship of corporations
(a) (c)(1) where the principal place of business is located
(i) Test: place of operations or bulk of corporate activity
(ii) Rationale: same as for diversity jurisdiction where the corp. employs the
most people, conducts the most activities, and has the most interaction w/the
public the corporation will most likely be perceived as local
(iii)
nerve center test used to identify citizenship when there are
dispersed corporate activities, usually the corporate headquarters or home
office
(iv) consistently interpreted to mean corporation can ONLY have ONE principal
place of business for diversity purposes
(b) (c)(1) state in which it is incorporated
c) Examples
i) Place of suit is irrelevant in diversity analysis.
ii) Parties from the same state on both sides of the v violates diversity jurisdiction.
iii) Alien person who is a citizen or subject of another country
(1) Article III, 2 separately authorizes jurisdiction over cases between citizens of
different states and cases between citizens and aliens
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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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5) PERSONAL AND SUBJECT MATTER JURISDICTION COMPARED (p. 73)


a) Three basic requirements that limit the proper courts for any lawsuit
i) Personal jurisdiction over the
ii) Subject matter jurisdiction over the type of case the wants to litigate
iii) Chosen forum must be proper venue under the applicable venue statute
b) Basic Distinctions
i) Personal jurisdiction geographical limitation on the places where a may sue
(1) Turns on the relationship between the and the state where suit is brought
(2) For federal cts, reach is restricted in most cases to those of the cts of the state
ii) Subject matter jurisdiction concerns the cts authority to hear generic types of cases
(1) Much more limited for federal cts than for state cts
(2) For fed. cts: established either by diversity or presence of a federal question [TEST
NOTES 11/15]
(a) Louisville and Nashville R.R. v. Motley (U.S. 1911) dismissed for lack of
subject matter jurisdiction because the federal question in the case arose as a
defense
(b) Fed law creates duty and implied or expressed remedy easy question
(c) What if state law creates the duty and the remedy but relies on some Federal law?
(i) Ex. MA OSHA law allows private individual to enforce those laws
(ii) Problem: incorporating federal standard. Fear that state law will change
standard. If an important enough federal interest will take it away from
the state courts. Look at what Congress has decided within the act.
c) Sources of Confusion
i) Concurrent Jurisdiction
(1) State cts have concurrent jurisdiction over cases within the federal judicial power
unless Congress has made federal ct jurisdiction exclusive for a particular type of
claim
(2) Federal cts do not have concurrent jurisdiction over state law actions (unless the
parties are diverse)
(3) Fed cts have broad subject matter jurisdiction in that they hear a case between
citizens of different states.
ii) Domicile
(1) Natural person subject to personal jurisdiction in the state where she is domiciled,
the last state where she has established residence w/the intent to reside indefinitely
(2) State citizenship (for diversity jurisdiction) also uses the domicile concept but asks a
different question: whether the s domicile is in the state where the suit is brought
(a) Rule: compare domiciles of and to ensure that they differ
iii) General jurisdiction
(1) Basic state trial courts exercise general jurisdiction: broad subject matter jur. over
many types of suits
(2) Personal jurisdiction context: general jurisdiction refers to the authority of the
states cts to hear any claim against a particular , whether or not it is related to the
s in-state contacts (general in personam jurisdiction)
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d) Personal Jurisdiction in the Federal Courts


DP Clause of 14th
Amendment
DP Clause of 5th
Amendment

Does not limit the federal cts power to exercise


personal jurisdiction
Applies only to states
Does apply to the federal government
Imposes its own limits on the power of federal cts
to exercise personal jurisdiction

i) 28 U.S.C. 2361 authorizes nationwide interpleader actions (nationwide jur. in fed


cts)
(1) Conflicting claims to the same property or fund
(2) Mirror image of Rule 19 (indispensable party)
ii) Unless such a provision applies, authority for fed cts to serve process outside the state
where they sit is restricted by Rule 4(k)
(1) Policy: confining the reach of personal jurisdiction in federal ct eliminates ground
for forum-shopping on purely procedural considerations
e) Examples
i) Domicile in the forum state is an adequate basis for asserting personal jurisdiction, even
if the claim sued upon did not arise in the state. Milliken v. Meyer (U.S. 1940)
(1) Submits himself generally to personal jurisdiction of cts, as a quid for pro for
enjoying the benefits and protections of living within the state
(2) Reasonable to have to respond for intentionally tortious acts w/in the state (specific
in personam jurisdiction)
ii) Subject matter jurisdiction analysis focuses on the nature of the case asserted; personal
jurisdiction analysis focuses on the relationship between the underlying events and the
state
iii) When jurisdiction is based on domicile, it is irrelevant that the CofA did not arise there
iv) A state court has broad subject matter jurisdiction over cases as a class (not merely over
those arising within that state). Ex. Battery occurs in CA, with suit in NV
v) CHECK for a federal claim or other basis for federal subject matter jurisdiction.
vi) A court that lacks personal jurisdiction may still hear the case if the does not object.
(1) waives the objection by failing to raise it. Rule 12 (b)(2), (g), (h)
vii) Federal ct must refuse to hear a case if it lacks subject matter jurisdiction. Rule 12 (h)(3)
viii) Rule: the general trial cts of each state have subject matter jurisdiction of almost any
kind of case, unless it has been exclusively delegated to a specialized state court or to the
federal courts (Congress could make federal jurisdiction exclusive if it so desired)
ix) Diversity is NOT a substitute for personal jurisdiction.
x) Congress may create exclusive federal court jurisdiction over cases w/in the Article III
power. (state cts lack subject matter jurisdiction)

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6) REMOVAL (p. 85)


a) Traditional rule: chooses the forum, in which to bring the suit, subject to the limitations of
personal jurisdiction, subject matter jurisdiction, and venue
i) Exception: Removal
(1) Federal removal statutes allow the , after has chosen a state court, to secondguess that choice by removing some types of cases from the state ct to a federal ct
(2) The case becomes a federal case, and the state court loses jurisdiction over it.
(3) Rationale: s as well as s should have the option to choose federal ct for cases
within the federal jurisdiction. Federal jurisdiction is intended to protect both
parties, and both should have access to it.
(4) 1441(a) - removal available ONLY in cases could have commenced in fed ct
(a) Rationale: not meant to expand federal jurisdiction, but to make it available to s
(b) Federal district ct is the only ct that can host a removed action
(5) CAUTION: some cases not removable, even though could have originally brought
them in fed ct
(a) 1441(b) if any is sued in home state, may not remove on basis of diversity
(i) Rationale for exception: has no need to be protected from local prejudice,
since is from the forum state.
(6) Congress provided for removal in the Judiciary Act of 1789
(7) 1441(e) federal ct is not precluded from hearing a case simply because the state
ct lacked jurisdiction over it (Ex. State ct cannot hear patent claim, but it can still be
removed to federal ct)
(8) Usual federal venue rules do not apply in removed actions.
(9) Removal applies to cases, not claims: entire suit is removed
(10)
Removal is a one-way street: cannot remove to state ct
b) Removal Compared to Transfer of Venue
i) 28 U.S.C. 1404(a) geographical transfer from one district ct within the federal
system to another in a different state or district
(1) Displaces the s geographical choice for litigation
ii) Removal authorizes transfer from state ct system to federal ct system w/in same state
(1) Displaces the s choice of the state ct system in favor of a federal ct w/in the same
geographical area
iii) Piper Aircraft Co. v. Reyno (U.S. 1981) removed and then transferred, then dismissed
for forum non conveniens
c) Examples
i) Motley Rule: jurisdiction is determined by looking at the s complaint, to determine if
he seeks recovery under federal law (federal issue must arise on the face of the wellpleaded complaint)
ii) In a multi- case, all s must agree to remove
iii) has a permissible form of forum shopping: present a colorable claim against at least
one non-diverse OR structure claim to avoid satisfying amount in controversy
requirement
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d) The Procedure for Removal (1446)


i) Removal decision is not irrevocable can move in federal ct to remand back to state ct
(1) If the basis for the motion is failure to comply w/procedural requirements: 30 days
(2) Motion to remand on basis of lack of subject matter jurisdiction can be made at any
time prior to final judgment in the case
e) Examples
i) 1446(a) allows to include in his notice of removal any further allegations that are
necessary to demonstrate his right to remove (Ex. that damages may be > $75k)
ii) 1446(b) If a case is removable as originally filed, the notice of removal must be filed
w/in 30 days after the complaint is served on the .
(1) Burden on to find out if the case was removable from the beginning
iii) Once the case is removed, the state court loses all power over it, even if it was
improperly removed
iv) Only the s actually served need join in the removal
v) The right to removal is waived by failing to file within 30 days, even if another is
subsequently joined.
vi) Removal only changes the court in which objections or defenses are presented.
(1) Removal does not revive objections that are waived by answering before removal
(a) Ex. objection to personal jurisdiction

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7) PROPER VENUE IN FEDERAL COURTS (p. 101)


NOTE: did not include examples at end of chapter due to slight coverage of topic in class
a) Venue rules are meant to further restrict the places where the may choose to bring suit
i) Every ct system has venue rules, generally established by statute
b) Venue Based on Individual Residence
i) 28 U.S.C. 1391(a)(1) and (b)(1) authorize venue in a judicial district where any
resides, if they all reside in one state
(1) Contrast w/in personam jurisdiction: A person who is subject to personal jurisdiction
w/in a state is subject to jurisdiction anywhere in that state
(2) Residence for venue purposes is equated w/domicile (only one district)
c) Venue Based on Events or Omissions Giving Rise to the Claim
i) 1391(a)(2) and (b)(2) venue is proper in a judicial district in which a substantial
part of the events or omissions giving rise to the claim occurred, or a substantial part
of property that is subject to the action is situated.
ii) Purpose: assure a relation between the underlying events that are litigated and the place
where the case is tried.
d) The Fallback Provisions in Section 1391
i) 1391(a)(3) authorizes venue in a judicial district in which any is subject to
personal jurisdiction at the time the action is commenced, if there is no district in which
the action may otherwise be brought.
ii) 1391(b)(3) authorizes venue in a judicial district in which any may be found, if
there is no district in which the action may otherwise be brought
iii) Only apply if there is no district, anywhere in the U.S., which would be a proper venue
under the first two sections
e) Three Other Important Points
i) Venue, like personal jurisdiction, is considered a privilege of the
(1) waives her objection to venue by failing to raise it when she responds to the s
complaint (Rule 12(b), (h), (g))
(2) Parties may even agree in advance to a particular venue for suits that may arise
between them.
(a) Forum selection clauses generally held enforceable in federal cts, even if they
lay venue in a district that would not be proper under 1391
(b) Carnival Cruise Lines, Inc. v. Shute (U.S. 1991) upholding forum selection
clause in absence of showing of unfairness
ii) 1391(a) and (b) are general venue provisions that apply to diversity and other federal
cases except as otherwise provided by law
(1) Specialized venue provisions govern many types of claims that appear to be covered
by 1391(a) and (b)
(2) Ex. 1400(b) restricts venue in patent infringement actions
iii) Exception for local actions
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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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8) CHOOSING A PROPER COURT (p. 119)


a) Each of the 3 rings has a different legal source and serves a different purpose
Subject matter
jurisdiction
Personal jurisdiction
Venue

Art. III, 2
DP (14th
amend.)
Statutory limit

authorizes fed jur over certain types of


cases
limits power of states to require out-ofstate s to defend suits in their courts
imposes separate constraints on the place
of trial to protect parties from inconvenient
litigation

b) Standards that govern each are closely related


i) Domicile
(1) Test determines state citizenship of individuals for diversity purposes
(2) Proper basis for exercising personal jurisdiction over an individual
(3) Relevant to venue because most cts have held that an individual resides under the
venue statute in the district in which he is domiciled
ii) Corporate Citizenship
(1) For establishing subject matter jurisdiction of the basis of diversity, corporation is a
citizen of the state of its principal place of business, as well as the state in which it is
incorporated
(2) Personal jurisdiction over corporations: general in personam jurisdiction analysis
(substantial and continuous business activities)
(3) Venue in suits against corporations will lie in any judicial district in which a
resides, if all s reside in the same state (residence defined in 1391(c) for corps. as
any judicial district in which its contacts would suffice to support personal
jurisdiction)
c) Relation of the Claim to the Forum
i) One ring may require a relationship that is irrelevant to the other rings
ii) Venue in cases against corporations is proper where the corporation is subject to personal
jurisdiction
(1) BUT false that [(If personal jurisdiction over corp.) venue]
(a) Personal jurisdiction based on some other claim would not suffice
(b) Venue statues only authorize particular districts within a state where the has
contacts some districts w/in the state may still be improper venues
d) Examples
i) Venue in diversity cases is governed by 1391(a), which authorizes laying venue in the
district where the s reside (a)(1) or where a substantial part of the events giving rise to
the claim took place (a)(2).
ii) General in personam jurisdiction proper if has a substantial, continuous presence is in
the state (Ex. training facility)
iii) 1404(a) ct can transfer cases for the convenience of parties and witnesses, in the
interest of justice, including cases in which the has already satisfied all 3 rings
- 17 -

(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.

- 18 -

PART TWO: STATE LAW IN FEDERAL COURTS


9) EASY ERIE (p. 135)
a) The Rule of Swift v. Tyson
i) Rules of Decision Act (1789, RDA) The laws of the several states [except where
otherwise provided] shall be regarded as the rules of decision in trials at common law
ii) Justice Story interpreted the laws of the several states in the RDA to refer only to the
statutes and certain established local usages of the state, not to judicial decisions
interpreting gen. principles of common law
(1) Federal ct should examine all the common law authorities to ascertain the proper rule
(2) Choose the right rule of consideration, rather than follow a rule some other judge
deemed to be the right one.
b) The Philosophical Underpinning of Swift
i) Premise that a court does not make law but merely finds or declares law
(1) transcendental body of law (Holmes), brooding omnipresence
ii) Problems
(1) The law could be different in separate states if the legislature so declared it
(2) Black & White Taxicab v. Brown and Yellow Taxicab (U.S. 1928) federal ct had the
authority under Swift to reach its own conclusion on the common law issue of
whether such exclusive contracts should be enforced. (company had reincorporated
in Tennessee to then bring suit in federal district court in Kentuckyforum
shopping)
c) The Legal Realist Attack on Swift
i) Holmes dissent in Black & White Taxicab attacked the basic philosophical premise
(1) But there is no such body of law.
(2) The law is a set of rules laid down by those w/the power to do so, to govern behavior
in a given place in a given time.
ii) So, the law can be one thing in one state and another in a second state: different
legislatures have exercised their authority
iii) Each rule may be right in the sense that it is appropriate for its time and place, but it is
not right because it is the one true rule for all time on a particular issue.
iv) The legal realist should ask what body has the authority to make the rules governing the
issue usually the states.
d) The Erie Decision
i) Overruled Swift w. Tyson for several reasons
(1) Swift failed to achieve the goal of uniformity gradual accumulation of general
common law did not induce state judges to recognize the rightness of those
decisions
(2) Federal practice of making common law had led to grave discrimination in the
administration of justice Swift had introduced diversity in favor of out-of-state s
(3) Unconstitutional authorized federal judges to make law in areas in which the
federal govt had no delegated powers
- 19 -

(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

- 20 -

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

- 21 -

10) EERIE ERIE: THE SUBSTANCE/SUBSTANCE DISTINCTION (p. 159)


a) Which issues are governed by the command of Erie?
i) Clearly requires federal cts to apply state law to issues upon which there is no federal
law-making power substantive issue
ii) What about clearly procedural issues?
b) The Emergence of the Problem
i) Cities Service Oil Co. v. Dunlap (U.S. 1939) held that the burden of proof issue
relates to a substantial right so that Erie mandated application of state law
ii) Guaranty Trust Co. v. York (U.S. 1945) issue was whether a federal diversity ct must
apply the state SoL to a claim, or whether it was free to apply its own more flexible
laches doctrine to the case
(1) Held that the state SoL statute must be applied, in order to implement the Erie policy
that in diversity cases, the outcome of the litigation in the federal ct should be
substantially the same as it would be if tried in State ct: outcome-determinative test
(2) Broadest interpretation: York would mandate use of the state rule, although there is
federal constitutional authority to establish a different rule would not be much left
of the FRCP in diversity cases
c) The Pendulum Swings Backa Little
i) Byrd v. Blue Ridge Rural Electrical Cooperative, Inc. (U.S. 1958) issue was whether
the judge or the jury should determine the s status as an EE of the
(1) Reaffirmed holdings of Erie and York
(a) Constitutional prong of Erie: fed ct must follow state law in those areas where it
has no power to create law
(i) Byrd: the issue was a matter a procedure as to which the federal ct was not
constitutionally compelled to apply state practice
(b) Broad York: fed ct, to assure uniformity of outcome, applies outcomedeterminative state law even on procedural issue as to which there is a federal
constitutional authority to apply a separate rule
(i) Byrd: broader policy that fed cts should follow state practices even of form
and mode (cts follow state law as a matter of policy rather than constitutional
command), if ignoring them would substantially affect the outcome of the
litigation
(2) Held: in deciding whether to follow state law in matters of form and mode, fed ct
must consider both the York policy of uniform outcomes and any countervailing
federal policies that arise from the federal cts status as an independent judicial
system
(a) Given the importance of the right to a jury trial in federal cts. Brennan concluded
that the Erie policy of maximizing uniformity of outcome should yield to the
federal policy of broad availability of jury trial
ii) Still appeared after Byrd that state procedural rules might supercede FRCP
d) The Rules Rescued: Hanna v. Plumer
i) Issue: service of process appropriate under Rule 4(d)(1) but not under MA statute
ii) argued that York says: use state law if doing so will affect the outcome
- 22 -

(1) Rejected by the Warren ct in favor of a modified outcome-determinative test


(a) Whether a federal procedure is outcome-determinative must be viewed in light of
the policies underlying Erie, to prevent forum shopping and inequitable
administration of the laws
(2) Concluded in this case that the test did not require the fed ct to substitute the state ct
rule for its own
e) Hanna Part 2: A Distinct Analysis for Federal Rules Conflicts
i) FRCP are officially promulgated by the U.S. Supreme Ct under the Rules Enabling Act
(REA) and implicitly endorsed by Congress
(1) Congress and the SCt have broad constitutional authority to promulgate any rule that
is arguably procedural
ii) Hanna ct endorsed an entirely different analysis for cases in which an official FRCP
conflicts w/state law
iii) Point: due to Hannas broad construction of the constitutional and statutory authority to
promulgate the Federal Rules, a party who argues that a federal rule is beyond the
bounds of federal authority because it is not procedural faces a very steep uphill battle
iv) REA: A Rule, though procedural under the first subsection of the REA because it
regulates the judicial process, is invalid under the second if it impinges on substantive
rights
v) Question: what exactly is substantive?
f) A Framework for Analysis
Conflicts between a Federal
Constitutional Provision and State Law

- 23 -

The Constitution is the supreme law of the


land (Art. VI, 2), and its provisions apply
even if they conflict w/state law (substantive
or procedural)

Conflicts between a Federal Statute and


State Law

Conflicts between a Federal Rule and


State Law

Conflicts between a Federal Judicial


Practice and State Law

Issue: whether the state law is valid


Hannas arguably procedural test
If the test is met, the statute must be
applied if it conflicts w/state practice
because Congress has the authority to
enact the statute, and valid federal statutes
are the supreme Law of the Land
Hanna Part 2
If a FRCP conflicts w/state law, the Rule
applies if it is valid.
Valid unless they abridge, enlarge,
or modify a substantive right under
the REA
Congress has the constitutional power to
authorize the SCt to adopt a federal rule,
if the Rule is rationally capable of
classification as a procedural regulation
(Hanna)
Federal judicial practices are invalid if
they purport to establish rules of primary
behavior which there is no federal
constitutional power to make.
Hanna: Diversity ct should still choose
the state rule if the difference between it
and the federal practice could prove
outcome determinative

g) Problems in Applying the Hanna Analyses


i) When is there a direct conflict between a federal statute or Rule and state law?
(1) Some cases avoid displacing state law by claiming there was no conflict.
(a) Walker v. Armco Steel Corp. (U.S. 1980) held that FRCP 3, which provides that
a suit is commenced by filing, is not intended to govern when the SoL period is
tolled
(i) Ct then turned to Hanna Part I to determine whether tolling the limitations
upon filing rather than upon service was a permissible federal judicial
practice concluded that ignoring state rules would lead to inequitable
administration of the laws
(2) Federal statute: same analysis
(a) Remember that a federal statute will not trump a state law unless the two conflict
ii) When does a Federal Rule abridge, enlarge, or modify substantive rights? (REA)
(1) very seldom will have to have a substantial impact on a state policy unrelated to
litigation to be declared invalid
(2) heavy presumption of validity for formal rules promulgated by the SCt
(3) Burlington Northern R.R. v. Woods (U.S. 1987) held that procedural rules that
incidentally affect substantive rights are permissible under the REA
- 24 -

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)

- 25 -

11) ERIE AND STATE CHOICE OF LAW: (p. 183)


a) The Problem of Choosing the Proper State Law
i) Choice of law the need to choose a body of substantive law to apply to the dispute
before the court
ii) Rule: the court should apply its own rule, the law of the state where the suit is brought
(1) Does not apply in all cases
(a) Would obviously encourage s to forum shop
(b) Policy: unwise to decide a controversy under a substantive rule completely
foreign to the events in dispute
(i) Factors: substantial connections, expectations, state interest
(ii) If there is a strong connection to another state, many cts would choose to
apply the substantive law of the other state
(iii)
Result may be that a ct in one state hears the suit but chooses to apply
the substantive law of another state
b) Approaches to Choice of Law when to choose the law of another state instead
i) Modern approach weigh the interests of each affected state in applying its law to the
case
ii) Apply the law of the state with the most significant relationship to the case in light of
policy considerations
(1) expectations of the parties
(2) the policy interests of the states with connections to the case,
(3) uniformity in enforcement
iii) The selection of the applicable law will depend on the choice of law approach of the
court in which the suit is filed.
c) Federal Courts Choosing State Law
i) Choice not only of state cts in different states, but also federal cts in each of those states
ii) Klaxon v. Stentor Manufacturing Co. (U.S. 1941) held that the policy underlying Erie
mandates the application of the forum states choice of law rules as well as its
substantive law
(1) Federal ct must do whatever the state ct within that state would do
(2) Rationale: Erie teaches that s should not obtain an advantage due to the accident
of diversity that they would not have in state court fed ct must do whatever state
ct would do
(3) Counterargument: Klaxon impedes development of conflicts of law and promotes
forum shopping
(4) Klaxon has been reaffirmed in subsequent SCt opinions
iii) Vertical uniformity: between state and federal cts w/in each state
iv) Horizontal uniformity destroyed: among the federal cts in different states
v) Erie has not ended forum shopping for a more favorable substantive law it has just
changed the rules of the game
(1) s may get the same result by choosing between federal cts in different states or
between state courts in different states
d) Examples
- 26 -

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
- 27 -

ii) may engage in issue shopping


(1) Chancy because a ct may deny a motion

- 28 -

PART THREE: THE SCOPE OF THE ACTION


12) THE BASIC RULES OF JOINDER (p. 205)
a) Traditional rule: the is the master of his claim
b) Joinder of Parties
i) Rule 20(a) governs initial joinder of parties and authorizes s to sue together:
(1) Criteria:
(a) They assert claims arising out of the same transaction or occurrence, and
(b) Their claims against the or s will involve a common question of law or fact
(2) Does not require parties to be joined when (a) and (b) are met
(a) Rationale: procedural difficulties such as differences of opinion as to tactical
choices, jurisdictional problems hampering efficiency
(b) Compare to Rule 19: requires joinder of certain persons under limited
circumstances
(i) 19(a) necessary party balancing test
(ii) 19(b) indispensable party same, but consider whether the suit will be
dismissed if this party is not included
(3) Allows joinder if relief is sought against the s jointly, severally or in the
alternative
ii) Rule 20 allows to sue multiple s in a single action if the same criteria are met
iii) Rationale: efficient to litigate those same issues once in a combined action, rather than
repeatedly in separate suits AND avoids the possibility of inconsistent judgments on the
same issue (reflects unfavorably on the judicial system)
c) Compare Rule 20 to Rule 18 and Rule 13
i) Rules 13 and 18 authorize parties, once they are properly joined in a law suit, to assert
additional claims against opposing parties
ii) Rule 13 authorizes counterclaims defending party in a suit asserts a claim back
against the party who has claimed against him
(1) Rule 13(a) compulsory counterclaim if the defending partys counterclaim
arises from the same transaction or occurrence as the claim against him, he shall
(must) assert it in the original action or lose it (Ex. same contract)
(a) Rationale: forces parties who are already adversaries to litigate all claims arising
from the same set of facts in a single action
(2) Rule 13(b) permissive counterclaim involves events completely unrelated to the
original claim
(a) Cannot be justified on efficiency grounds. Ct may order separate trial (Rule
42(b))
(b) Rationale: ought to at least have the opportunity to settle disputes w/the in a
single action. Fairness: gives s same opportunities has under Rule 18(a).
(3) Rule 13(g) cross-claims arise out of the same transaction or occurrence as the
main claim and is asserted by one party against a co-party (one against another )

- 29 -

(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.

- 30 -

13) JOINDER OF PARTIES UNDER RULE 14 (p. 221)


a) Rule 14 permissive: gives a a limited right to implead (to bring into the suit) new parties
against whom she has claims to the main action
i) Standard: Rule 14(a) - bring a person not yet a party to the suit who may be liable to the
for all or part of any recovery the obtains on the main claim
ii) Rule 14(a) also authorizes impleaded party to assert a related claim back against the
original (must arise out of same transaction or occurrence)
iii) Tort cases: contribution judgment that the third party is liable to pay the main part
of the damages she is ordered to pay the
iv) Claims for indemnity against an insurer
v) Distinguish from situations in which the contends that another person is liable directly
to the but not to her
(1) Does not allow s to suggest new targets for the , but rather allows s to bring in
targets of their own if they may be able to pass on liability to the impleaded party
vi) The liability of third-party s depends on the outcome of the main claim
b) Impleader claim is treated like an original suit for pleading, service, and other purposes
c) Rule 14 - may implead a third party within 10 days of answering the complaint, w/o
obtaining leave of ct
i) But always w/in the cts discretion to refuse to entertain the impleader claim
ii) Factors suggesting denial of impleader: undue delay, complication of issues, potential
prejudice to from a sympathetic third party
iii) Third party citizenship irrelevant to diversity and venue analysis, but ct must still have
subject matter jurisdiction over the impleader claim itself
d) Examples
i) Rule 14 cannot be used to foist alternate s on the
ii) may implead multiple third-party s for joint or several liability: no reason why a
should have to limit his impleader claims to one third party when several may be liable
to him
iii) Third-party defendant liability must be derivative of the main suit
iv) Must always meet the requirements of personal jurisdiction: due process rights would
clearly be abridged if impleaded party forced to defend in a forum with which he lacks
contracts as if he were forced into such a ct as the original
v) Rule 14(b) - , now a on a counterclaim, may implead a party who may be liable to
her for all or part of a judgment the counterclaiming obtains from her

- 31 -

14) SUPPLEMENTAL JURISDICTION (p. 233)


a) Pendent Jurisdiction
i) asserts a jurisdictionally proper claim against a nondiverse party and added on a
related state law claim
ii) United States Mine Workers v. Gibbs (U.S. 1966) SCt established guidelines for the
exercise of jurisdiction over pendent claims
(1) Held that the federal ct had pendant jurisdiction over the state law claim because it
was joined with the federal labor law claim
(2) Rationale: Article III grants jurisdiction over entire cases, not just over particular
claims or issues constitutional power to hear claims arising out of the same
common nucleus of operative facts
(a) Consistent w/the intent of the framers, who wrote of cases and controversies
iii) Did not require federal cts to hear pendent claims
(1) Second step in Gibbs analysis: discretionary decision by the ct
(a) Does it make sense to exercise jurisdiction based on the following factors?
(i) Does the state law claim predominate?
(ii) Require decision on novel issues of state law?
(iii)
Whether hearing the claims together might confuse the jury
(iv)Whether the federal issues were resolved early in the case
b) Ancillary Jurisdiction
i) Related claims asserted by s or other additional parties after the initial complaint
ii) Moore v. New York Cotton Exchange (1926) counterclaim was compulsory because it
arose out of the same accident as the main claim, but the ct lacked independent
jurisdiction over it because it was based on state law and did not satisfy the amount-incontroversy requirement
(1) close connection between the original, jurisdictionally proper claim and the added
claim making them part of a single constitutional case
(2) Standard: logical relationship to the main claim
c) Two Other Important Background Cases
i) Owen Equipment & Erection Co. v. Kroger (U.S. 1978) Held that extending ancillary
jurisdiction to the claim would inconsistent with the long-standing interpretation of
1332, requiring complete diversity between the parties
(1) Principle: federal jurisdiction is not only limited by the Constitution but also must be
conveyed to the federal district cts by Congress in a jurisdictional statute
ii) Finley v. United States (U.S. 1989) case of pendent party jurisdiction
(1) Same principle as Owen
(2) Held that the district ct had no jurisdiction over the pendent part claims
iii) HISTORY!!! Now 1367 governs these issues
d) 1367 provides a statutory basis for supplemental jurisdiction in federal cts
i) If the brings a proper federal claim or diversity claim, so that the federal ct has
original jurisdiction, the ct may hear all the claims that are part of the same case or
controversy under Article III [includes counterclaims, cross-claims, etc.]

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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.

Third, ct has discretion to hear the related


claims based on factors in 1367(c).

Gibbs held that the constitutional power to


hear the related claim exists if (1) there is a
proper claim within the jurisdiction of the
federal ct, and (2) the related claim arises from
the same nucleus of operative facts.
1367(a) grants jurisdiction over all related
claims that are part of the same case
(constitutional test).
1367(b) limits certain claims in diversity
cases which would contradict the limitations in
1332
1367(c) codified second half of the Gibbs
analysis

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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15) JURISDICTION vs. JOINDER (p. 255)


a) A suit is proper only if both the joinder rules and the jurisdictional requirements are met
i) No party may assert a claim against another party in the federal cts unless one of the
joinder rulesRules 13, 14, 18, 20, or 24authorizes assertion of that claim
ii) The fact that the rules authorize joinder is not sufficient to assure that the federal ct may
hear the claim.
iii) Power and permission come from constitutional doctrine
(1) All federal jurisdiction must be found in Article III
(2) FRCP promulgated by the Supreme Court
(a) May not use its rule-making power to expand their jurisdiction
iv) The good sense of joinder rules may be thwarted by the limitations on federal subject
matter jurisdiction (absolutes)
b) Examples
i) Rule 20(a) governs joinder of multiple s and only authorizes joinder if the s claims
against both s arise out of the same transaction or occurrence
(1) Or, Rule 21: ct may drop a , eliminating the joinder problem, and then the may
proceed with a separate independent suit
ii) Rule 18 is the ultimate in permissiveness
iii) Classic pendent claim a jurisdictionally insufficient claim that arises from the same
nucleus of operative facts as the proper federal claim (Gibbs)
(1) Now authorized by 1367(a) ct can hear claims that are part of the same case or
controversy as the jurisdictionally sufficient claim
iv) Avoiding destruction of diversity: watch for a separate basis for jurisdiction over one of
the parties (then diversity is not destroyed)
v) Permissive counterclaims will always pass the Gibbs test.
vi) Rule 13(g) cross-claims should always satisfy the test for supplemental jurisdiction if
they arise from the same set of events as the main claim
(1) Exception: 1367(b) sometimes deny supplemental jurisdiction to cross-claims
brought by s
vii) Personal jurisdiction and venue are always satisfied by s domiciled in the state.
viii) Claims must be analyzed individually as to jurisdictional power.
(1) CHECK for independent subject matter and supplemental jurisdiction
ix) 1367(a) expressly states that supplemental jurisdiction includes claims that involve the
joinder or intervention of additional parties.
(1) ct may hear counterclaims even if complete diversity is lacking
(2) bias by barring claims by s that are inconsistent w/complete diversity, but
allowing similar claims by defending parties
x) Intervention
(1) Rule 24(b) allows a party to seek intervention if her claim shares a question of fact or
law with the main claim
(a) Exception: 1367(b) bars supplemental jurisdiction over claims by persons
seeking to intervene as s under Rule 24when exercising supplemental
jurisdiction that would be inconsistent with the jurisdictional requirements of
1332.

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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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PART FOUR: STEPS IN THE LITIGATION PROCESS


16) SERVICE OF PROCESS IN THE FEDERAL COURTS (p. 267)
a) Due process of law under the fourteenth amendment
i) Guarantees parties the basic right to notice of a cts intention to adjudicate their rights
and an opportunity for those parties to be heard
ii) In civil suits, this requirement of notice is satisfied by service of process
(1) Service of the initial notice to the of the filing of a lawsuit against him
(2) Notifies the that he has been sued and informs him that the ct intends to proceed to
adjudicate his rights
iii) Governed by the elaborate provisions in Rule 4
b) The Relation of Service of Process to Personal Jurisdiction
i) 12(b)(5) motion
(1) Motion to dismiss for insufficiency of service of process
(2) Attacks the adequacy of the method used by the to give the notice of the action
ii) 12(b)(2) motion
(1) Challenges the ct to exercise personal jurisdiction over the
c) Examples
i) Burnham service of process in the state confers jurisdiction over an individual
(1) Does not suggest that a corporation is subject to personal jurisdiction in a state
simply because an officer is served while there for an unrelated purpose
ii) Rule 60(b) Relief from judgment
(1) Gives a judge discretionary power to undo the finality of a judgment for various
reasons, including inadvertence, surprise, or excusable neglect (Rule 60(b)(1)) and
any other reason justifying relief from judgment (Rule 60(b)(2))
(2) Rationale: allow the ct to relieve a party from the effect of a judgmenteven a valid
judgmentwhen fairness supports reopening the case (Ex. lack of actual notice)
(3) Judge might refuse for other policy reasons (Ex. upsetting expectations of parties)
iii) Most cts have held that a federal ct can exercise jurisdiction under the Fifth Amendment
over a who has contacts anywhere in the United States

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17) THE MOTION TO DISMISS (p. 287)


a) s Options in Responding to s Complaint
i) Filing an answer (Rule 12(a))
ii) If has preliminary objections to the suit, avoid answering immediately by filing a
motion to dismiss the complaint for failure to state a claim upon which relief can be
granted) (Rule 12(b)(6))
(1) Asserts that even if the were to prove all the allegations in the complaint, she
would still not be entitled to any relief
(2) Alternative to answering the complaint
(3) Optional
(a) s not required to use it to raise the defenses listed in Rule 12(b), as each of
those may be raised in the answer instead
(4) Unlike other pre-answer defenses because it challenges the substantive merits of the
complaint
(5) will almost always be given at least one opportunity to amend the complaint to
state a compensable claim
(6) Rationale: short-circuit the litigation process in cases in which the has a valid
defense, evident from the outset
iii) Other pre-answer defenses
(1) Fatal Defenses will lead to dismissal if upheld by the ct
(a) Rule 12(b)(1) the ct lacks subject matter jurisdiction
(b) Rule 12(b)(3) ct is not a proper venue
(c) Rule 12(b)(2) ct lacks personal jurisdiction over the
(2) Other defenses raise defects in the procedure by which initiated the action
(a) Rule 12(b)(5) defense of insufficiency of service of process
(b) Rule 12(b)(7) defense of failure to join an indispensable party
(c) The two above are generally curable defects that will not require dismissal but
must be remedied before the case can proceed
b) Waiver of Defenses Under Rule 12
i) Consequences of not raising Rule 12 defenses governed by 12(g) and (h)
ii) Disfavored Defenses
(1) Will be waived for all time if not raised in the first response to the complaint
(2) Rationale: if suffers prejudice from these preliminary defects, she should become
aware of it when the complaint is served on her. Also avoids wasted judicial
resources.
(3) Personal jurisdiction 12(b)(2), venue 12(b)(3), the form of the process, or the method
of service of process 12(b)(5)
c) Policy of the exception to waiver under Rule 12(b)(6)
(1) Fundamental challenge to the merits of the s claim
(2) If has committed no legal wrong, should not be held to waive this defense merely
because she failed to raise it at the beginning of the suit
(3) 4 Disfavored Defenses are distinguishable since they are all procedural objections

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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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18) THE SCOPE OF DISCOVERY (p. 301)


NOTE: did not include examples at end of chapter due to slight coverage of topic in class
a) Demise of Pleading and Rise of Discovery
i) Current pleading practice the complaint and the answer provide a tentative view of
the parties positions, based on preliminary research and investigation
ii) Once issues more clear, full development of the parties positions evolves through
discovery
(1) Court-mandated production of information from other parties and non-party
witnesses
(2) Parties may usually amend pleadings to conform to their evolving understanding of
the dispute
(3) Discovery is conducted by the parties, not by the court; judge just resolves disputes
b) Major Tools of Discovery (powerful)
i) Rule 33 interrogatories
ii) Rule 34 requests for production of documents
iii) Rule 30 oral depositions
iv) Rule 26(a) automatic disclosure
c) The Basic Test of Relevance
i) Rules of discovery are powerful because they compel production of evidence and
because of the broad scope of the evidence that must be produced.
ii) Scope of discovery is governed by Rule 26(b)(1)
(1) Virtually any evidence arguably relevant to the issues in the case, or to matters that
might become issues in the case, may be demanded
(2) Standard: so broad that it creates a presumption that anything related to the case may
be sought in discovery
(a) Burden on a party opposing the production of evidence to explain why it does not
satisfy the standard
(3) Information is NOT automatically subject to production if it meets the broad
production standard discoverable unless otherwise limited by the court
(a) Motion for protective order (Rule 26(c)) empowers to ct to limit discovery
to protect a party or person form annoyance, embarrassment, oppression or
undue burden or expense.
(b) Ct has discretion to limit or bar information w/in the scope of Rule 26(b)(1) after
considering
(i) The requesting partys need for the info.
(ii) The burden and expense of producing it
(iii)
The potential for revealing intimate facts that should remain private
(iv)The potential for use of discovery to annoy or intimidate an opponent
(v) The admissibility of evidence
d) Privilege Objections to Discovery
i) Important exceptions to discovery exist
ii) Rule 26(b)(1) itself limits discovery to information that is not privileged
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(1) Privilege some policy favoring confidentiality is judged to be more compelling


than access to the evidence
iii) Attorney-client privilege bars inquiry into communications between a client and her
counsel in the course of legal representation
(1) Rationale: effective representation requires full and frank communication between
lawyer and client. Upjohn v. United States (U.S. 1981)
(2) Communication will be inhibited if opposing counsel would listen in on these
communications by asking about them at trial or in discovery
iv) Other privileges recognized by cts: priest and penitent, doc and patient, psychotherapist
and patient, H/W
v) Privileges may be created by state or federal common law or statute or in the U.S.
Constitution.
vi) Point: recognize why cts might choose to protect information despite its relevance, and
that where they so, the information need not be disclosed in discovery.
e) Work Product Objections
i) Bars production of certain materials developed in anticipation of litigation
ii) Hickman v. Taylor (U.S. 1947) - s counsel in a wrongful death case sought discovery
of defense counsels notes of interviews with various witnesses to the tugboat sinking
that caused death
(1) Also requested, through interrogatories, the substance of other interviews that the s
lawyer had conducted but had not written down wanted Fortenbaugh to write out
his memory of the interviews in response to the interrogatories
(2) Argued that allowing this discovery would improperly interfere w/ the privacy of his
trial preparation
(3) When the case was decided, Rule 26 provided no explicit exception for mental
impressions contained in the files and minds of the attorney
(a) Troubling: very difficult to separate factual information in trial preparation
materials from the thought processes of the lawyer who developed them
(b) Concern that allowing discovery of trial preparation materials would allow
lawyers to ride on their adversarys coattails in preparing for trial
(c) Concern about lawyers ending up as witnesses in their own cases if the
statements they produced contradicted other testimony from the same witness
(4) Denied production of the requested information
(5) Held that written statements given by witnesses might be subject to discovery if the
party seeking discovery made a sufficient showing of need for the material and
inability to obtain it through other means. Ct also expressed considerable doubt that
an attorneys mental impressions or personal notes on a witness interview would ever
be subject to discovery.
iii) Rule 26(b)(3) codified work product doctrine
(1) Standard: documents and things prepared in anticipation of litigation can only be
obtained in discovery if the requesting party demonstrates that she has substantial
need for the materials and cannot obtain substantially equivalent information through
other means w/o undue hardship
(2) Even where such a showing is made, the mental impressions, conclusions, opinions
or legal theories if an attorney shall be protected from disclosure
(3) Three categories of work product

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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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19) BASIC METHODS OF DISCOVERY (p. 323)


NOTE: did not include examples at end of chapter due to slight coverage of topic in class
a) Modern Procedure
i) Premised on full access to information possessed by adversaries and third parties before
trial
ii) Policy: broad discovery makes trial a matter of clear, orderly presentation of evidence
known to all litigants. Also encourages settlement by educating the parties about the
strengths and weaknesses of their cases
iii) 1993 amendments to FRCP
(1) Introduced some automatic disclosure requirements for the first time (Rule 26(a))
iv) For the most part, discovery remains an antiphonal process under which adversaries
either provide requested information or raise an objection to doing so
b) Interrogatories (Rule 33)
i) Most frequently used form of discovery
ii) Questions propounded by one party to an opposing party, seeking information relevant to
the issues in dispute
iii) Advantage: inexpensive means of getting information from the other side
(1) Most effective for obtaining basic background information
(2) Useful to force an opponent to specify the grounds of the general claims raised in a
complaint or answer (contention interrogatories)
iv) Disadvantage: often less effective than one might expect
(1) Rule 33(b)(1) requires the responding party to answer each interrogatory under oath
(unless she has an objection) but those answers are crafted by the opposing partys
lawyer to reveal as little as possible
v) Timing: use early in the case to help develop a plan for further discovery through
document requests and depositions
c) Requests for Production of Documents (Rule 34)
i) Policy: litigation should be based on open access to all relevant information
ii) Rule 34 authorizes a party to require an opponent to produce designated documents or
things in its control for inspection or copying
(1) Parties tend to draft requests for production broadly to snare as much information as
possible
(2) Parties responding sometimes prefer to open their records as they are kept in the
ordinary course of business for examination by the requesting party
(a) Can impose a greater burden on the requesting party
(b) Rule 33(d) - at minimum, the responding party should indicate how the records
are organized, what records respond to which requests, and any other necessary
information necessary to locate requested items
(3) Disputes often arise over who is going to search for relevant documents and who is
going to pay for it
(a) Requesting party will usually pay the costs of the search initially, though these
costs may be taxable to the losing party if the case goes to trial

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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

d) Oral Depositions (Rule 30)


i) The taking of testimony from a witness.
ii) Because the witness is sworn, her testimony is subject to the penalties of perjury (Rule
30(c))
iii) Advantages: the most effective means of obtaining detailed information from witnesses
before trial
(1) Counsel gets to see the party or witness evaluate how effective they will be as
trial witnesses
(2) Witness required to answer questions spontaneously a much better preview of the
witnesss trial testimony than sanitized interrogatory answers
(3) Counsel can frame follow-up questions based on previous answers
(4) Deposition is on the record commits the witness to a detailed version of the
relevant events; changing the testimony at trial can be used effectively to impeach
that testimony
iv) Disadvantage: time and expense
(1) Taking a deposition requires a full understanding of the case, which takes time
(2) Deposition itself can last from hours to days
(3) Cost of the ct reporter is substantial
e) Taking Depositions: Timing and Mechanics
i) Conventional wisdom is that depositions should come after interrogatories
ii) Taking early depositions can make tactical sense
(1) Pin down an opponent to a particular version of the facts or legal position early on
iii) Rule 30 - allows counsel to take depositions of any person, including a party
(1) Rule 45 if the person to be deposed is not a party, she must also be subpoenaed
(a) Court order to appear and give testimony
(b) If a deposing counsel wishes a non-party deponent to produce records or other
tangible evidence for the deposition, she must serve a subpoena with the notice
of deposition specifying the documents or things to be brought to the deposition.
iv) Counsel representing the deponent may object to questions on a number of grounds (Ex.
irrelevance), but the witness is usually required to answer the question even if she has an
objection to it (Rule 30(c))
(1) Most evidentiary objections made with the intent of keeping evidence from being
produced at trial
(2) When the objection is based on a privilege, counsel for the deponent may instruct
her not to answer the question (Rule 30(d)(1))
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(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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- 47 -

20) DISMISSAL FOR FAILURE TO STATE A CLAIM COMPARED TO SUMMARY


JUDGMENT (p. 365)
a) Devices s may use to challenge the merits of the s case before trial (pretrial resolution)
i) 12(b)(6) motion to dismiss for failure to state a claim on which relief can be granted
ii) Rule 56 motion for summary judgment
b) The Rule 12(b)(6) Motion
i) may move to dismiss the s complaint on the ground that it fails to state a claim that
entitles the to any form of relief
ii) The wrong that the describes is not recognized as a violation of any legal rights
(1) Ct would not be able to grant damages or other relief to the even if he proved all
the facts alleged
iii) Standard: whether the complaint itself states a legally sufficient claim
(1) Assumes that the facts are true and the will prove them
(2) Purely legal question: whether, if the proves the allegations in the complaint, he
will have established a cause of action entitling him to some form of relief from the
court
iv) Cts give every benefit of the doubt to the in deciding the motion
(1) Conley v. Gibson (U.S. 1957) held that a complaint should not be dismissed under
Rule 12(b)(6) unless it appears beyond doubt that the can prove no set of facts in
support of his claim which would entitle him to relief
(2) Pleadings must be liberally construed in favor of sustaining the complaint ct can
infer what the is alleging
v) Types of defective complaints that are vulnerable to dismissal
(1) has sought relief for acts that are not proscribed under current law
(2) has failed to allege the necessary elements of a claim that, if properly pleaded,
would state a sufficient claim
(a) if an oversight, ct will allow to amend the complaint, and suit will proceed
(b) if cannot allege the necessary element, the complaint is fatally defective
c) Examples
i) Rule 12(b)(6) motion is available to resolve difficult issues of law as well as clear ones
(1) Some cts may be reluctant to grant motions to dismiss if the state of the law is
unsettled may sense that the issue is close and could be better decided on a full
record after discovery or trial
ii) For purposes of the motion to dismiss, ct only knows what is in the complaint
(1) Under Conley v. Gibson, ct must ask whether the , on the allegations of the
complaint, could prove any set of facts that would entitle her to relief
(a) If the ct can reasonably infer that has stated a valid CofA, must deny the
motion to dismiss
(2) s plead generally in order not to reveal weaknesses in their cases or simply to
avoid giving the opposing party any free discovery
(a) will use SJ motion to flush out such weaknesses anyway

- 48 -

(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
- 49 -

(2) Motion frames a single dispositive issue for the court


(3) If the ct agrees with the s legal argument, it will deny SJ
(4) If the ct decides the element is not satisfied will enter judgment for the because
he is entitled to judgment as a matter of law
ii) Resolve individual claims in a multi-claim lawsuit
f) Examples
i) Admissible evidence deemed sufficiently reliable, under established rules of evidence,
for a jury to hear and consider in reaching its decision of facts
(1) Since the point of the SJ motion is to see if there is any evidence on the challenged
allegation for the jury to consider the evidence used to support the motion should
be evidence that the jury could hear at trial
ii) Rule 56(c) no genuine issue of material fact
(1) Dispute must be on an issue that is material to the right to recover
(2) Ambiguity in Rule 56
(a) 56(c) provides that SJ can only be granted if there is no genuine issue as to any
material fact
(i) SJ often decided even if there are unresolved issues in the case
(ii) So, the language must mean no factual dispute concerning the particular
element of the claim that is challenged by the motion
iii) Ct may grant partial summary judgment for the (on one element)
iv) Rule 56(e) SJ granted if appropriate where the moving partys materials would
suffice to establish that partys version of the facts that the burden shifts to the opposing
party to introduce contrary evidence
(1) If the evidence offered could give rise to two inferences, one of which would support
the opposing partys case, ct would assume jury would make that inference and deny
SJ (even if opposing party does not file materials)
(2) 56(e) provides that a party may not avoid SJ by resting on contrary allegations in the
complaint
(a) SJ motion challenges to show he can prove it, not just allege it
v) Whether the SJ motion should be granted turns on whether the moving party can get SJ
by pointing out that the party w/the burden of proof lacks adequate evidence to meet that
burden, without producing any evidence of its own to disprove the alleged facts
vi) Celotex Corp. v. Catrett (U.S. 1986)
(1) Issue: whether s decedent had been exposed to asbestos products
(2) Held: a party can support a SJ motion w/materials that show that the party who has
the burden of proof of an essential fact cannot prove that fact
(3) Held: if the demonstrated that there was no evidence in the record to support s
claim of exposure to its product, and the did not produce evidence tending to
prove exposure could get SJ w/o presenting any evidence to show lack of
exposure
(4) entitled to JAML if , who held burden of proof on the issue, had no evidence to
carry the burden
(5) s put in a difficult position: must aggressively develop evidence before the motion.
If does not, will lose because he has not gathered the evidence necessary to prove
it.
- 50 -

(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

- 51 -

21) JUDGMENT AS A MATTER OF LAW (DIRECTED VERDICT) (p. 385)


a) Summary Judgment is justifiable in cases where there is nothing for the jury to do
i) Judge uses devices to control the jurys decision-making process
(1) Judgment as a matter of law (JAML)
(2) New trial (MfNT)

no proof
for

weaker evidence for

stronger evidence 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
- 52 -

(a) Change in name only in federal courts


(2) Judge does not resolve factual issues but makes a legal judgment that the evidence is
so lopsided that there really is no meaningful factual dispute for a jury to consider
d) The Timing of the Motion
i) Typically, will move for JAML at the close of the s evidence
(1) Ground: has not produced enough evidence to support a rational verdict in her
favor
(2) If the judge denies the motion will present her evidence to rebut the s case or
to establish affirmative defenses
ii) After the rests, she may move again for JAML
(1) Ground: challenging the sufficiency of all the evidence, both s and s, to support
a verdict for
e) The Standard for Entering Judgment as a Matter of Law (see class notes)
i) Difficult to articulate a workable standard for deciding when evidence crosses X and Y
ii) Rule 50(a) specifies that JAML may be entered when there is no legally sufficient
evidentiary basis for a reasonable jury to find for the nonmoving party
iii) Possible tests
(1) Case must go to the jury if there is even a scintilla of evidence to support the
opposing partys case
(a) If the has any evidence to support the elements of her claim, she will get to the
jury (point W on the diagram)
(b) Gives the greatest latitude to the jury at the expense of effective judicial control
or irrational jury decision-making
(2) s evidence standard: requires the judge to consider only the evidence proffered
by the nonmoving party.
(a) Judge must assume the truth of all evidence offered by the nonmoving party, and
direct a verdict (enter JAML in federal ct) only if that evidence would not
support a verdict for the nonmoving party
(b) Judge may NOT determine the credibility of witnesses (a jury decision)
(c) Test: whether the jury, if it chooses to believe those witnesses, would have
sufficient evidence to support a verdict for the
(3) Federal standard: requires the judge to consider the nonmoving partys evidence in
its most favorable light, but also to consider any evidence put forward by the moving
party that is not impeached or contradicted by the opposing partys evidence
(a) If, after considering all that evidence, there can be but one reasonable conclusion
as to the verdict, the judge must direct a verdict for the moving party.
(b) Very widely followed in state cts, too
f) Examples
i) JAML is a bit of a misnomer: judge makes a factual judgment that the evidence is too
farfetched to justify a finding for the
(1) To reach the jury, the must present credible evidence on each element of her claim;
if proof fails on any one, the is entitled to JAML

- 53 -

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

- 54 -

22) THE JUDGE AND THE JURY (p. 405)


a) Judge may allow the jury to deliberate and reach its verdict on the evidence but refuse to
enter judgment on the verdict rendered
i) Traditionally, the judgment notwithstanding the verdict (j.n.o.v) delayed (or
renewed) motion for a directed verdict
(1) Standard: same as that for directing a verdict: granted if the opponents evidence is
so weak that no reasonable jury could have reached a verdict for him
(2) Asserts that the jury acted irrationally, in disregard of the evidence in reaching a
verdict for the party opposing the motion
ii) Now called judgment as a matter of law
(1) Takes the case from the jury to prevent an irrational result
(2) New name refers to both the pre-verdict and post-verdict motion
iii) Reasonable judges may differ about whether a given case is strong enough to go to a jury
(debatable)
(1) Judges entry of JAML before the jury deliberates will frequently be appealed
(a) If the appellate ct concludes the evidence was sufficient, it reverses the judges
entry of judgment and orders a new trial
(b) Requires a wasteful repetition of the entire first trial
(2) If judge withholds decision on the sufficiency of the evidence by denying JAML at
the close of evidence, the jury (recognizing the evidence is weak) will frequently
return a verdict for the nonmoving party
(a) If the jury returns a verdict for the party against whom the judge considered
directing a verdict judge can still enter JAML
(i) If the case is then appealed, no need for a new trial: if the appeals ct reverses
the judges order, it can then enter judgment on the jurys verdict
b) Prerequisites to the Renewed Motion
i) Limitations on the right to seek JAML
(1) Rule 50(b) the motion must be filed w/in ten days of the entry of judgment on the
jurys verdict
(2) Party may only move for JAML after the verdict if he made the same motion before
the verdict
(a) Rationale: party moving at the close of evidence must state his grounds for
concluding that the case should not be submitted to the jury (Rule 50(a)(2)).
Alerts the ct and the opposing party to the defects in the partys case before the
jury has gone out, while there is still time to offer further evidence to cure the
defect.
(b) Prevents a party from sandbagging his opponent by raising defects in the
opponents evidence after the jury has been discharged, when it is too late to cure
them
ii) Policy: the entire thrust of the Rules is to ensure that suits are determined on the merits,
not on the procedural skills of counsel
c) New Trial Distinguished
i) Rule 59 - the grant of a new trial does not end the case but leads to a second trial on all
or part of the case
- 55 -

ii)

iii)

iv)

v)

(1) Must be filed within 10 days of entry of judgment


(2) Allows the judge to vacate the verdict and order the case retried in order to assure the
parties a fair trial procedure
Two categories of cases in which the cts have granted new trials
(1) New trials for error in the trial process
(a) Policy: every litigant is entitled to due process of law, including a fair trial
procedure before his rights are determined
(b) Errors of this sort may taint the jurys decision-making process, leading it to
consider inappropriate information in reaching a verdict or to use the wrong rules
of law in assessing liability or damages
(2) Trial process was fair but the result was wrong: verdicts against the weight of the
evidence
(a) Various standards
(i) Judge may grant a new trial if the jurys verdict is against the clear weight,
the overwhelming weight, or great weight of the evidence;
(ii) when it is quite clear that the jury has reached a seriously erroneous result
(b) Judge cannot displace the jury simply because he disagrees with the jury
(i) But may order a new trial when the evidence is strong enough to rationally
support the jurys verdict, but he believes the jurys verdict is seriously
erroneous (point Q on the diagram)
(ii) When the evidence is within the arena for jury decision BUT judge disagrees
(3) Important difference between (1) and (2) on appellate review
(a) Trial error: can be reviewed de novo by the court of appeals
(b) Against the great weight of the evidence: includes balancing of evidence which
usually only the trial judge has a full opportunity to observe
(i) Rare for appellate judges to second-guess MfNT on this ground
(ii) Trend: review new trial grants under an abuse of discretion standard
1. Gasperini v. Center for Humanities, Inc. (U.S. 1996)
a. Does the seventh amendment mandate this particular result? Even if
not, federal cts have adopted rules about this. [Gerken: Use the
BYRD TEST]
Judge may consider the credibility of witnesses
(1) Acting as thirteenth juror in making an independent assessment of the evidence
(2) Decides whether it is would serve the ends of justice to have another jury hear the
case
Arguably, the judge is more intrusive w/ MfNT than with JAML
(1) Standard for granting a new trial is less stringent
(2) Counterargument: it is a new jury, not the judge, that will reconsider the case if the
motion is granted
Refer to diagram on Glannon, p. 411: The Judges Power to Displace the Jurys
Verdict

for

weaker evidence for

Evidence
Evenly
Balanced

- 56 -

stronger evidence

Evidence too
weak to
support
rational
verdict for

A verdict for
is
supportable,
but against
clear weight
of the
evidence

Judge does not


agree with
jury, but
cannot say
verdict for
is against clear
weight of the
evidence
Judge may
Judge may
Judge will
enter directed order new trial order entry of
verdict or
judgment on
the jurys
j.n.o.v. for
verdict

Judge and jury


concur the
preponderance
of the
evidence
favors
Judge will
order entry of
judgment on
the verdict for

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

vi) No final decision on which to base an appeal


(1) But some state systems allow an interlocutory appeal from the grant of a new trial
vii) Judge may grant partial new trials
d) Examples
i) Rule 50(b) requires that the motion be made before verdict (d.v.) in order to preserve
the right to make the motion after verdict (j.n.o.v.)
(1) Rationale: put on notice of the alleged weakness in his case
(2) Ct has chance to consider the sufficiency of the entire evidence before sending the
case to the jury
(3) Motion must be made w/in 10 days of the entry of judgment
ii) Rule 59 contains no analogous requirement of a prior motion for JAML (d.v.) or for a
new trial in order to move for a new trial on the ground that the verdict is against the
clear weight of the evidence
(1) Motion must be made w/in 10 days of the entry of judgment
(2) The making of one post-trial motion does not suspend the time for making the other
(3) Policy: strict limit on the time for granting a new trial reflects a strong policy in
favor of finality of judgments
iii) can make three motions together after a trial (w/in 10 days):
(1) Renew motion for JAML (seek j.n.o.v.) under Rule 50(b), if she believes evidence
was too weak to support a rational verdict for
(2) Join a motion under Rule 59 for a new trial
(3) assert improper jury instruction as an alternative ground for a new trial
iv) If judge enters JAML against (j.n.o.v.) for , Rule 50(c)(2) allows to move for new
trial w/in 10 days on ground that evidence was improperly excluded
v) May not appeal grant of a new trial until after the new trial is held because a new trial
grant is not considered a final judgment under federal practice.
(1) Requires a second trial before appeal
(2) Some states allow interlocutory review of new trial grants
e) Combined Motions and Appellate Review
i) Rule 50(c) and (d) set forth the procedure for presenting objections for motions for
JAML and MfNT, and for appellate review of such combined motions
- 57 -

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

Grants s motion for j.n.o.v., and


his conditional motion for new
trial
Grants s motion for j.n.o.v., and Agrees with both decisions
grants his conditional motion for
new trial
Denies s motion for j.n.o.v., and Agrees on j.n.o.v.,
disagrees on new trial
grants his conditional motion for
new trial
Denies s motion for j.n.o.v., and Disagrees on both
grants his conditional motion for
new trial

Grants s motion for j.n.o.v., and


denies his conditional motion for
new trial

Disagrees on both

- 58 -

Action by Appellate Court


Enter judgment for , since s case
too weak to support a verdict
Enter judgment for , since both cts
agree s case too weak to support a
verdict
Cannot do anything until appeals
new trial grant after second trial. Ct
will reverse order for a new trial and
order entry of judgment for the on
the original verdict.
Have to wait until after second trial.
Ct will reverse order for new trial
BUT will enter judgment for the
anyway, since s motion for j.n.o.v.
should have been granted at end of
first trial
Case is immediately appealable.
Reverse the entry of judgment for the
, but remand back to trial court.

- 59 -

PART FIVE: THE EFFECT OF THE JUDGMENT


23) RES JUDICATA (p. 427)
a) FRCP create a flexible procedural system in order to prevent procedure from dominating
substance, to assure that the merits of the parties claims, not procedural missteps, determine
the outcome of lawsuits
i) Examples of procedural liberality:
(1) Parties are given broad power to join claims and parties in a single suit (Rules 13, 14,
18, 20, 24)
(2) Given latitude to plead al their possible claims against opposing parties, within the
limits of proper pleading (Rules 8(a), 8(e)(2), 11)
(3) Pleadings are liberally construed (Rule 8(f), Conley v. Gibson)
(4) Amendments to pleadings freely allowed (Rule 15(a))
(a) Even if amendments are not offered, courts can treat the pleadings as though they
had been amended when justice so requires (Rule 15(b))
(5) Cts may grant the parties the relief to which they are entitled even though they never
asked for it. (Rule 54(c))
(6) Ct may grant relief from judgment (Rule 60(b)) or a new trial (Rule 59)
ii) Opposite is true for rules governing relitigation
(1) Once the parties have had a full and fair opportunity to be heard under the flexible
rules, the process comes to a halt
b) Res judicata is strict and uncharitable
i) A claim is merged into the judgment a party has won (extinguished and replaced)
ii) A claim is barred by an adverse judgment, so that no further suit could be brought on
that claim.
iii) Rationale: litigation is burdensome enough the first time around (no justification for
multiplying the costs and delay of litigation after the first full opportunity). Without the
certainty provided by res judicata, parties would not be able to rely on court decisions in
planning their future conduct.
iv) Efficiency would not be justified if it were achieved at the expense of fairness.
(1) If amendments are liberally allowed in the first suit, it is fair to bar a second action
on theories left out of the first suit.
(2) Res judicata encourages parties to take full advantage of the Rules to present their
claims initially
c) Four prerequisites to res judicata:
1) Final judgment
2) Judgment must be on the merits
3) Claims the same in the 1st and 2nd
suits

- 60 -

Entered by trial ct. Jurisdictions differ on


whether a suit on appeal has RJ effect.
needs only to have had a full opportunity to
litigate the merits in the first action
Test: transaction or occurrence test of the
federal joinder rules (need not have been
litigated for RJ, only need to have been

available)
Or have been represented by a party in the
prior action

4) Same parties

d) The Same Claim Requirement for Res Judicata


i) Test: equates a partys claim for res judicata purposes with the transaction or
occurrence test of the federal joinder rules
(1) Claim preclusion turns on the right to join the claim in the original action, not on
whether the claim actually was asserted.
(2) Claims need not have been litigated to be barred in a later action; they need only
have been available to the in the first suit
ii) A party who has asserted a right to relief arising out of a particular transaction or
occurrence must join all the claims she has arising from it, or the omitted claims will be
barred by res judicata
iii) Res judicata should not bar claims that could not have been joined in the first action.
e) Judgment on the Merits
i) Paradigm: a full trial followed by a verdict and a judgment
ii) Some dismissals do not bar a second action because they did not reach the merits
(1) Improper venue or lack of personal jurisdiction
(2) Basis of dismissal in these actions is that the ct does not have the power to reach the
merits
iii) Jurisdictions differ as to whether a 12(b)(6) motion should bar a second action
(1) Restatement says it should be barred: a whose complaint is dismissed for failure to
state a claim has already been given liberal opportunities to amend. Federated
Department Stores v. Moitie (U.S. 1981)
(2) Some state cts allow a second action because comparatively little litigation effort
goes into preliminary dismissals so a basic value underlying RJ (preservation of
scare judicial resources) is not compromised by allowing a new action
iv) Actually, cts need not reach the merits for judgment to have full RJ effect needs
only to have had a full opportunity to litigate the merits in the first action
(1) Rationale: If she doesnt take the opportunity, she must accept the RJ consequences.
Same rationale for a who defaults.
f) Final Judgment
i) Generally, cts remain free to reexamine interlocutory rulings made in the course of a
suit, including a ruling dismissing one of the s claims.
ii) Until final judgment is entered in the trial ct, it remains too uncertain to support a res
judicata plea in a separate action between parties
iii) Restatement view differs
(1) Many cts give res judicata effect to a judgment once it has become final in the trial
ct, even if an appeal is pending.
(2) A judgment may bar relitigation even though the original case is still being litigated
and is not yet enforceable by execution or otherwise.
g) Examples
- 61 -

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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24) RES JUDICATA AND THE RULES OF JOINDER (p. 447)


a) Ought to be a close relationship between the parties right to join claims in their first lawsuit
and the scope of res judicata in subsequent suits between them
i) The system ought to offer parties a chance to have all their claims heard, through either
(1) Limited claims in multiple suits, or
(2) Multiple claims in a single suit
(a) Federal cts (and many state systems) choose this route
(b) Implemented by extremely broad rules governing pleading and joinder
(i) Rules (8)(a)(3), 8(e)(2), 13, 14, 18, 20
(ii) Liberal joinder rules give s broad power to join all their theories of
recovery in initial suit
(iii)
The may of these rules means must when the effects of RJ are
considered.
(iv)Exceptions when initial joinder of a particular claims is not available under
Rule 18(a)
ii) Theories that could have been joined are generally barred
iii) Scope of permissible joinder of parties is much broader than the dimensions of a single
claim for res judicata purposes
(1) In many cases, claims against additional parties could be joined under the Rules but
will not be barred by res judicata if they are not
(2) s rights to recover from separate s are considered distinct claims under res
judicata analysis, even though they arise out of the same occurrence
(3) Same parties requirement not met since the s differ in the two actions
(4) Policy: is the master of his claim (favor freedom of choice over efficiency)
(5) However, the first action may have some preclusive effect
(a) Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation (U.S.
1971)
(b) Inhibits freedom of choice to some extent, since cannot start action w/a
completely clean slate
b) Examples
i) Rule 20 says s may sue > 1 , not required to do so
ii) Res judicata all theories for recovery arising out of a single transaction or occurrence
constitute a single claim for preclusion purposes
(1) Applies not only to s, but to all parties in the suit who have asserted claims
iii) Intervention
(1) Rule 24(b)
(a) Permissive: cts may deny for a number of reasons
(2) Intervention as a matter of right (Rule 24(a))
(a) Demonstrate prejudice (will be barred from future litigation of claim)
(b) Not required of parties (optional)
(c) CHECK on jurisdictional problems (Ex. destroying complete diversity)
iv) In some systems, counterclaims are NOT compulsory even in these jurisdictions, it is
sometimes held that a party waives his right to sue separately on an omitted
counterclaim if the issues were raised defensively in the prior action
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v) CHECK for subject matter jurisdiction over additional claims (1367)


vi) Policy: amendment rules are liberal, but not meant to encourage s to hold back on
some claims and then spring them on s right before trial
(1) Fairness to the
(2) Need to expedite litigation

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25) COLLATERAL ESTOPPEL (p. 459)


a) Res Judicata Compared to Collateral Estoppel
i) Res judicata indiscriminately stops efforts of parties to relitigate events that have
already been litigated and decided in a prior suit
(1) Forcing to bring all claims she has arising from the original action
(2) A second suit based on a repeated action would not be barred by res judicata because
it is not the same incident as the original action
(3) Applies only to parties and their privies
ii) Collateral estoppel dissects a lawsuit into its various issues and removes from
reconsideration any that have been properly decided in a prior action
(1) More narrowly focused: precludes only issues decided in the previous action
(2) Only precludes a party from relitigating issues that were actually litigated and
decided in a prior action with the same party
(3) The repeated action would be collaterally estopped because that issue was litigated
and decided
(4) Collateral estoppel is needed because issues already litigated may come up again in
later litigation based on separate events
(a) Precludes relitigation of an issue even if res judicata is inapplicable
(b) Broader: can foreclose litigation of a particular issue in an entirely new context
(5) Can be used by someone who is not a party to the suit
b) Prerequisites for Estoppel
i) The issue in the second case must be the same as the issue in the first.
ii) The issue must have been actually litigated
(1) Just because an issue is raised does not mean it was actually litigated
(2) Policy: The interests of conserving judicial resources, of maintaining consistency,
and of avoiding oppression or harassment of the adverse party are less compelling
when the issue on which preclusion is sought has not actually been litigated before.
iii) The issue must have been actually decided in the first action
iv) The decision on that issue in the first action must have been necessary to the cts
judgment
(1) Judge may decide on a number of issues that do not ultimately determine the
outcome of the case
(2) If there are two independent sufficient grounds for a decision, the Restatement would
deny collateral estoppel effect to either decision since it is impossible to tell which
decision was necessary to the judgment
(a) Rationale: a decision in the alternative may not have been as carefully
considered. The losing party might be dissuaded from appealing because of the
likelihood that at least one of the determinations would be upheld and the other
not reached.
(i) Halpern v. Schwartz (2d Cir. 1970) even subsequent cases have limited this
holding to bankruptcy cases in the Second Circuit
(b) Rationale NOT universally accepted: some cts have given collateral estoppel
effect to both alternative determinations
c) Further Complications
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i) Offensive use of estoppel and nonmutual estoppel


(1) Parklane Hosiery Co., Inc. v. Shore (U.S. 1979) see next section
d) Examples
i) Analysis of collateral estoppel issues should always begin with a determination of
what was decided in the first action.
(1) Different factual issues must be litigated in the new suit
(2) Collateral estoppel does not affect claims or defenses that could have been raised but
were not
(3) Can work for either party
ii) Relief from judgment (Rule 60(b)(2)) applies only to reopen an original action
iii) General verdict jury asked to find for (and damages) or
(1) Impossible to tell which issue is decided collateral estoppel will not bar
relitigation of either issue
(2) Neither holding is entitled to preclusive effect because the losing party had no
incentive to appeal on one arguably incorrect ground if the other would support the
judgment
iv) Denial of motion for SJ (or JAML) does NOT actually decide an issue
v) Value of invoking collateral estoppel: save litigation time, assure same favorable result
obtained in first suit

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26) NONMUTUAL COLLATERAL ESTOPPEL (p. 477)


a) Collateral Estoppel
i) Issues decided in one lawsuit may have effects in another suit between the parties at a
later time or in a different ct
ii) Traditional preclusion principles a party may be estopped from relitigating an issue
that he had litigated in a prior suit and lost
iii) Nonmutual collateral estoppel goes a step beyond this doctrine
(1) Allows a new party to invoke collateral estoppel against a party who litigated and
lost on an issue in a prior action
(2) Mutuality rule has been abandoned in many jurisdictions
(a) Prior Rationale: parties that take the risk of litigating are the ones that face the
consequence of being bound in subsequent suits by the decision, and only they
should benefit from collateral estoppel. Also, w/o the rule there is the problem of
over-litigation of issues in the original action for fear of unknown risks of
estoppel in future actions involving new parties.
(3) Bernhard v. Bank of America National Trust & Savings Assn. (Cal. 1942, Traynor)
concluded that it was not categorically improper to allow a new party to take
advantage of findings in an earlier suit to estop a party who had litigated the issue in
the prior action.
(a) The party against whom estoppel was asserted had been a party to the first action
and had had a full and fair opportunity to relitigate the issue. The court saw no
reason to allow her to relitigate the decided issue by simply switching
adversaries.
(4) Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation (U.S. 1971)
SCt endorsed use of nonmutual estoppel in the federal cts
(a) Ct emphasized that preclusion was only appropriate if the precluded party had
a full and fair opportunity to litigate in the first action
(b) Lower cts have not construed this holding as limited to patent cases
b) Defensive Nonmutual Estoppel
i) Nonmutual because the party asserting the estoppel on the issue was not a party to the
action in which the issue was first litigated
ii) Defensive assertion of nonmutual estoppel is more easily justified than the offensive use
of estoppel in Parklane
iii) Defensive estoppel the party being estopped was usually the in the original suit and
chose the forum and the against whom to initially litigate the issue
(1) Rationale: hardly seems fair to bind the to the first resolution of the recurring issue
c) Offensive Nonmutual Estoppel
i) Usually involves a new who seeks to borrow a finding from a prior action to impose
liability on a party who was a in the prior action
(1) New uses finding against in a prior suit to establish a claim in a new suit against
that
ii) Parklane Hosiery Co., Inc. v. Shore (U.S. 1979) held that lower cts should exercise
discretion in deciding whether to allow such offensive assertions of estoppel
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(1) If in doubt, the ct can deny estoppel.


iii) Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation ct in the second
action must be convinced that the estoppel party had a full opportunity to litigate the
issue in the first case.
iv) Reasons for the cts to exercise caution in deciding whether to apply nonmutual collateral
estoppel:
(1) in the first action did not choose the forum in which the case was initially decided
(2) Risks noted in Parklane
(a) May lead to wait and see attitude by s hold back from joining in the first
s suit
(b) A party might not have litigated the issue aggressively in the first action if the
stakes were small or the forum inconvenient (little incentive)
(c) It may not have been possible for the losing party to litigate effectively in the
first action if the procedural rules of the ct that decided the first case were more
restrictive than those hearing the second
(d) One or more prior inconsistent judgments on the issue may suggest that it would
be unfair to give conclusive effect to any one of them.
d) Nonmutual collateral estoppel is a form of collateral estoppel.
i) It must meet all the basic prerequisites for application of estoppel
ii) The court must also consider the additional factors to determine whether it would be fair
to preclude relitigation of findings from the prior action in a new suit involving a new
party.
iii) While mutuality has been abandoned in the federal cts, some states still apply the
doctrine.
e) Examples
i) Every litigant is entitled to DP of law before a ct adjudicates his rights.
(1) Efficiency is outweighed by fairness
ii) Bernhard nonmutual collateral estoppel party seeking in invoke estoppel was NOT a
party to the suit in which the issue was initially litigated
(1) Standard: did the party being estopped litigate the issue in the prior action
iii) Mutuality doctrine confines estoppel to the parties to the original suit or those in
privity with the original parties who actually litigated those issues
(1) Jurisdictions that have abandoned mutuality: ct may allow use of defensive estoppel
by a new party, so long as the party being estopped was a party to the prior action
and litigated the issue there
iv) Offensive estoppel party not in original action invokes a finding from the first action
to establish an element necessary for recovery against the in both the first and second
suits
v) Parklane: HELD that the federal cts may apply offensive mutual collateral estoppel in
situations in which a new invokes estoppel to establish an issue that was decided
against the in the prior suit
(1) Ct will NOT automatically bar relitigation: examine circumstances from first case
(a) Adequate opportunity to litigate
(2) Factors favoring application of estoppel
(a) Serious injuries indicate strong incentive to defend action vigorously
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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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