I.

Federal Jurisdiction
a. Diversity Jurisdiction 1332 - must be completely diverse and amount must be
more than $75,000 not counting interest and cost (If P filed then P likely wants
subject matter jurisdiction so he can be in federal court, if the case is removed then
the D is going to be arguing for jurisdiction because he was the one who removed it
to federal court)
i.
Article 3 of Constitution - broader than 1331 and 1332
1. Section 2 - Between citizens of a different state or state / foreign state
a. Only requires minimal diversity (FL v. FL / CA)
ii
Diversity of citizenship
1 Complete diversity required 1332(a)(1)
a. To be a citizen of a state is someone must be both a U.S. citizen
and domiciled in the state
i.
U.S. citizen domiciled abroad (Johnny Depp) - not a foreign
citizen, not a state citizen, for purposes of diversity he is
stateless, cannot sue or be sued under diversity
ii.
Foreign citizen domiciled in the U.S. (French president) - if not
a U.S. citizen then can't sue or be sued under diversity
iii.
Born in the U.S. then assume birthright citizenship,
naturalized U.S. citizen is a U.S.
b Domicile:
i.
Where does the person reside?
I.
House, Job, memberships, etc.
ii
Do they have a requisite intent?
I.
Majority Approach: Intent to stay indefinitely?
II.
Mas Test: Intent to stay permanently?
b Corporations 1332(c) i
Place of incorporation (might be more than one place)
ii
Principal Place of Business - only one
I.
Hertz Test: Nerve Center
b Partnerships (LLC, LLP) - The LLC is a citizen where ALL the owners
are citizens
i
Exception: Professional Corporation (PC) - Same as
corporation, PPOB and Incorp.
b Representatives
i
Bob dies in FL, the representative of his estate is in CA. Her
capacity of the decedent is in FL.
I.
Hypo: What if the representative is suing on behalf of
Bob in FL for wrongful death AND for NIED for her own
damage - she's a citizen of both (IIED - CA, Wrongful
death - FL)
b Time of filing is the time that matters
2 U.S. v. Foreigners - 1332(a)(2) - People not corporations
a FL v. Citizen of France - Diversity Jurisdiction
b FL v. Citizen of France but Domiciled in FL - Diversity Jurisdiction
(can sue foreigners so this works as long as D doesn't become a
U.S. citizen)
c FL v. Citizen of France, gets a green card, domiciled in New York Diversity Jurisdiction (citizen of FL v. U.S. citizen in different state
2 Foreigners v. Foreigners - 1332(a)(3) - People not corporations
a Must have citizens of different states on each side of the v. then
you can add on foreigners
i
Hypo: FL + France v. NY + Germany (this is ok)
I.
FL v. NY - OK by A1
II.
FL v. GER - OK by A2

III.
FR v. NY - OK by A2
IV.
FR v. GER - OK by A3
ii
Hypo: FL + FR v. GER (this is not ok)
I.
FL v. GER - OK by A2
II.
FR v. GER- Not OK because this would only work if GER
was an additional party to a U.S. defendant
ii
Amount in Controversy must be > $75,000
1 Accept what the plaintiff pleads if it is good faith. Must be legally certain
it cannot be met to not meet this condition (usually because of
requested amount or caps).
a Hypo: $1,000 per unsolicited texts, if someone sues for 10
unsolicited texts then it cannot be over $75,000 - this is known to a
legal certainty.
2 Rules of Aggregation:
a P can aggregate together any amounts in controversy against any
one defendant
i
Hypo - P sues D for battery ($50,000) and for unrelated
breach of contract ($50,000) - this passes
ii
Hypo - P1 and P2 each sue D for battery for $50,000 each, this
cannot be added together
iii
Hypo - P sues D1 and D2 for battery for $50,000 each, this
cannot be added together
iv
Must be different damages
I.
Hypo - P sues D for $50,000 for breaking the contract
and fraud and SL. All three counts are for the same
$50,000. This is $50,000 only not $150,000, cannot be
added on.
Subject Matter Jurisdiction 1331 - Federal Question
i
Article 3 - Constitution permits subject matter jurisdiction if there is any
federal ingredient in the case at all - 1331 is narrower.
ii
Step 1: Well Pleaded Complaint Rule - Only look at the plaintiff's complaint
1 Don't look at anticipated defenses or counter claims
a Mottley - P was seeking damages for breach of contract, they said
that D will assert a federal defense. Court said this was an
anticipated federal defense and doesn't count.
ii
Step 2: Is there a federal question?
1 Holmes Test - Which lawmaker created the cause of action, state or
federal?
a Note: Iqbal sued under a Biven action which is federal common law
- this satisfies the Holmes test
2 Grable Test - Is there an embedded federal issue?
a Example: State claim for negligence but the duty prong is based on
a federal statute
b Grable: State quiet title action (state) but the quiet title action
hinged on the IRS (Federal).
i
Is the federal issue necessarily raised by the state law claim?
Does it turn on resolution of that issue?
ii
Is the federal issue actually disputed?
iii
Is the federal issue substantial? (to the federal system as a
whole, in Grable it went to the federal government's ability to
collect taxes).
iv
Would it upset the balance of dockets between the court?
Don't want to open the flood gates of state courts claims into
federal courts
I.
If any element fails then likely it fails.

ii
i

Exclusive Federal Questions: Patent, copyright

1257 (a): U.S. Supreme court gets the final say state decisions involving
federal questions
ii
12(H)(3) Lack of Subject-Matter Jurisdiction. If the court determines at any
time that it lacks subject-matter jurisdiction, the court must dismiss the
action.
Supplemental Jurisdiction - Cannot have supplemental jurisdiction without
original jurisdiction
i
1367: Rules added to increase efficiency. Supposed to encompass old
common law rules. Allows a state claim to be attached to a federal claim in
federal court. This avoids having two separate trials.
1 (a) give supplemental jurisdiction
2 (b) take away - supplemental jurisdiction
a Is it diversity only, if so would supplemental jurisdiction wreck
diversity? If so, use joinder analysis
i
Is it someone brought in by one of the other joinder rules?
ii
Or is it rule 19?
iii
Or is it rule 24?
b Hypo: A (Texas) sues B (Missouri) who through rule 14 brings in C
(Texas) and D (Missouri) all for negligence all over $500,000. A - B
and B - C are ok but B - D doesn't have diversity, 1367(a) says it
can be brought in because the claim is from the same facts.
Analysis: Diversity only, wrecks diversity, this is a claim by D under
rule 14 and thus it's ok.
i
The court can still choose to decline to exercise supplemental
jurisdiction through 1367(c)
2 (c) punt
3 (d) saving clause (statute of limitations)
a It can be refiled within 30 days in state court
ii
1367 (a): Supplemental jurisdiction cannot be the only reason you are
claiming jurisdiction. It can only supplement 1331 and 1332. Allows a state
claim to be attached to a federal claim in federal court. This avoids having two
separate trials.
iii
1367 (b): If a claim is coming only from 1332 (diversity), the district court
will not have jurisdiction if someone is brought in by the true party plaintiff
that wrecks diversity.
iv
1367 (c): The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if
1 the claim raises a novel or complex issue of State law,
2 the claim substantially predominates over the claim or claims over which
the district court has original jurisdiction,
3 the district court has dismissed all claims over which it has original
jurisdiction, or
4 in exceptional circumstances, there are other compelling reasons for
declining jurisdiction.
ii
Must show that the original claim and the supplemental claim share
commonalities that go to the heart of the case. If there is a common nucleus
then 1367(a) permits supplemental jurisdiction.
Removal
i
Removal - plucked from State court to Federal Court (sought be D ONLY, all D's
must join or consent to the removal)
1 Remove the entire action not a claim
2 First step - there must be federal original jurisdiction (must have
diversity or federal question or both)

II

1441(b)(2) In State Defendant Rule - Can't remove if it wrecks diversity

OR if D is a citizen of that state (assuming there is not subject matter
jurisdiction)
a Hypo - FL citizen sues in CA court a citizens of CA and NY. This could
have been filed in federal court based on diversity. Assume it is
filed in CA state court, D cannot remove because D is from CA.
i
Change: If the case was filed in FL State court then it could be
removed to Federal in FL
2 1441(c)(1) Removable federal claim joined with a nonremovable state
claim
a Hypo - FL v. FL seeking $1 for copyright infringement and $1 for
unrelated battery. Claim 1 is removable but claim 2 is not. Must
remove the whole claim not just part. So the whole claim is
removed then claim 2 is remanded back to state court.
2 1446 - Mechanics of Removal
a Timing of removal must be within 30 days of D being served
i
Last Served Rule: 30 days from the last defendant served
ii
Hypo: FL v. FL + GA in state court. Cannot be removed
because no complete jurisdiction.
I.
Six months later D from FL is dropped so it becomes FL
v. GA, now removable
II.
Eighteen months later D from FL is dropped so the 1
year statute of limitations for removable is violated.
Can't remove based on diversity past one year from the
original filing
1. Exception: Bad faith - P tells FL to stay in the case
for a year so GA can't remove then he drops FL
after the 1 year statute is gone. 1 year period
wouldnt apply
ii
Hypo: FL v. FL, claim is state trademark, case goes on for 18
months then P adds a claim for federal trademark - case can
be removed 1446(c)(1) - case first became removable when
the federal claim was added
I
One year statute of limitations for removal is only for
diversity
2 1454 - Specialized statute for copyright or patent claim in the case,
regardless if it is in the complaint or the counter claim then the case can
be removed by either party.
ii
Remand - sent back to state court - 1447 - Mechanics of Remand
1 Timing depends on the basis for remand
a Procedural defect in removal - P has 30 days after filing of the
notice of removal
i
Defendants remove case 6 months after it was initially
removable (violation of 30 day rules).
b Federal court lacks subject matter jurisdiction - P can request
remand any time up to final judgment (judge can also remand if
there is no jurisdiction)
Personal Jurisdiction
a Rule 4
i
Rule 4(k) - When you're in federal court you should analyze jurisdiction as if
you are in state court which says look at state long arm statute and any
authorizing state statute and 14th amendment due process.
1 Establishes personal jurisdiction over party joined under rule 14 or 19
served within a judicial district and not more than 100 miles from where
the summons was issued

ii
iii

Rule 4(K)(1)(c) - Scope of jurisdiction

Rule 4(K)(2) - Federal long arm, often used against foreign defendants, only
implemented under 3 conditions
1 Claim arises under federal law (copyright, etc.)
2 4(K)(1)(a) cannot be available anywhere (not under general jurisdiction
of the federal court)
3 PJ must not violate the 5th amendment, must have sufficient minimum
contacts
Jurisdiction over property in state court
i
Is there a state statute or rule that permits the state to exercise power of the
property?
ii
Does it violate the fourteenth amendment?
1 Pennoyer - if the property is located within the state the state has power
over it
2 Schaffer - Changed to International Shoe standard
a Justice Marshall - If property is being sued you have to ask what
type of suit is it regarding the property.
i
Pure in Rem - property is the subject matter of the suit and
everybody would be bound (probate proceeding). If it is within
the state then the court will have jurisdiction.
ii
Quasi 1 - Property is the subject matter of the suit but the only
parties being bound are the litigants (sale or real estate). If it
is within the state then the court will have jurisdiction.
Property is within the state so there likely will be minimum
contacts
iii
Quasi 2 - Property is related to the suit but is not the subject
matter I
Somebody slips and falls on property and sues but not
for possession of the property but just for monetary
damages, the property being in the state is relevant to
the lawsuit but is not directly at issue. The court isn't
clear but there might be jurisdiction
II
If the property is totally unrelated to the law suit
(Situation in Schaffer) then the supreme court said no
jurisdiction without more contacts
b Powell and Stevens Concurrences: If it is property (permanently in
the state) then it should be sufficient to establish jurisdiction, this
avoids some of the uncertainty from international shoe
In Personam Jurisdiction in state court
i
Long-Arm Statute
1 Enumerated - On an exam discuss every part of the statute that might
matter, see if each part is satisfied
2 Unemerated - California - Analysis is coextensive with due process, if due
process is satisfied then so is the long arm
Traditional Basis of Personal Jurisdiction
i
Domicile ii
Consent and Waiver 1 Consent - When you do something that leads PJ
2 Wavier - when you fail to do something which leads to the loss of the
ability to object to PJ
a Stipulation
b General appearance
c Forum selection clause
d Sanction - discovery
e Implied Consent - sufficient contacts

ii

Transient presence 1 Must be a human defendant, not a corporation

2 Voluntary in the state
3 Burnham analysis (only if there is a legitimate service in the state person and voluntary)
a Scalia - use the traditional basis, if you're in the state and served
then it's valid
b Brennan - Use the minimum contacts test
Modern Basis of Personal Jurisdiction - Minimum contacts
i
General Jurisdiction - All-purpose jurisdiction , the contacts don't have to be
related to the claim. If there is general jurisdiction over a person then they can
be sued in that state for any reason
1 Systematic and continuous contacts making the defendant at home
a If a corporation then any place it is incorporated, it's PPOB, and
possibly other places. Just systematic and continuous is not enough
but it can be, must be so systematic and continuous.
i
Extraordinary / very rare circumstance - unclear law
ii
Specific Jurisdiction - Case specific (doesn't have to be systematic and
continuous and doesn't require there to be only one contact)
1 Purposeful availment - Did D purposefully avail itself to the benefits and
advantages of the forum state? Make intentional contacts in the state
and uses the benefits of the state.
a Talk about the contacts
b Argue by analogous cases
i
International Shoe
ii
Hess
iii
Contract - Burger King - anticipated contacts, prior
negotiation, duration, amount of the contracts
iv
Intentional Torts - Calder and Walden - Targeting, harm in the
forum state
b Stream of commerce analysis - component of a product or the final
product which through the chain of distribution (manufacturer distributor - final sale) and is bought in the forum state or causes in
an injury in the forum state
i
Brennan - Regular stream of commerce. Regular and
anticipated sales in the forum state which D is aware of
ii
O'Connor - Uses Brennan approach then look for a plus factor
I
Advertising aimed at the forum state
II
Help lines aimed at the forum state
III
Distributors aimed at the forum state
IV
Products designed for the forum state
ii
Stevens - Look at the volume, value, and hazardous nature
2 Giving rise to the claim
a Evidence Test - are the defendants contacts evidence of the claim?
Are there any contacts in the forum state that are evidence of the
claim?
b But For Test - But for the defendants contacts with the state there
never would have been a claim
c Broader test - just ask about the nature of the contacts
2 Reasonable factors
a When purposeful availment is shown, reasonableness is presumed
b Defendant has the burden of showing unreasonableness
c The burden is high, must show a compelling case
i
Is the defendant going to be burdened?

ii

b
II

II

Does the plaintiff have an interest? What is the nature of the

interest?
iii
What is the interest of the forum state?
iv
Efficiency? Where are the witnesses / evidence?
v
Shared concerns of the states regarding substantive social
policy? The substance of the claim, does the forum state and
other states all agree about regarding recovery (product
liability)? Is it a common cause of action that we all agree we
should provide recovery for?
If both specific and general are presented by the fact pattern then
talk about both separately

Service of Process
a Rule 4 - Service of the summons and complaint
i
Summons is what is used to assert power over a person
ii
By a non-party
iii
Defendant can waive service which gives D extra time to answer
iv
Rule 4(e) - service on an individual residing in the U.S.
1 In federal court you can use any basis for service that is allowed in the
relevant state court
2 Or the federal basis such as personally or leaving it with a person of
suitable age that resides at D's house
b Rule 6 - Timing
Venue - looks at federal districts not states
a Not a constitutional requirement, it's statutory
b Typically looks to where the parties reside and where things happened
c 1441(a) - Tells us the proper venue for a case that is removed from state to federal
court - the corresponding federal court
d 1390 e 1391 - Governs venue for a case that is originally filed in federal court
i
1391(b)(1) - Where do the defendants reside?
1 Can lead to multiple proper venues
2 If all of the defendants reside in the same state then venue is
appropriate in any district where a D resides
a If defendants do not reside in the same state then B1 is not
satisfied
2 For purposes of B1 use domicile for individuals (1391 (c)(1))
a Hypo: Resident is not domiciled in the U.S. -> can be sued in any
district
b Hypo: PA v. Miami, Tallahassee, and France -> B1 can be used for
purpose of venue. Even though they do not reside in the same
state, the foreign person doesn't count for this analysis (1391(c)
(3)).
ii
1391(b)(2) - Where stuff happened?
1 Can lead to multiple proper venues
2 Can use a broad approach or a narrow approach
ii
1391(b)(3) - fallback that only kicks in if there is no place that satisfies b1 and
b2
1 Usually B2 would be out of the U.S. for this to happen and P / D from
different states
2 Fallback is any district where any defendant is subject to PJ with respect
to such action (problem is you likely can't get PJ over multiple
defendants in the same place)
ii
1391(c)(1) - Use domicile to tell residents
iii
1391(c)(2) - venue is for districts not states, for corporations they reside in
any venue where they have the capacity to sue or be sued under personal

jurisdiction (treat districts as if they were states). Tells us where corporations

reside for the purpose of B1 venue (not necessarily where venue is).
iv
1391(d) - aimed only at corporations (not other business venues) and for
states with multiple districts. In measuring residence it is in any district where
the corporation is subject to PJ, could be all districts in a state or just one.
Similar to C2 but this allows a corporation that doesn't have minimum
contacts in any district alone in a state, so there isn't PJ in any district but
there is with the state overall. If this occurs then use the district with the most
substantial contacts
b 1404 - Venue is valid, Court can still transfer to another district where venue would
be proper or all parties have consented - if everybody agrees then you can seek a
transfer
i
Looks at the convenience of the parties
ii
Gilbert Factors (Piper) - Public and private interest factors
1 Private - litigants themselves
a Ease of access to sources of proof
b Availability and cost of obtaining unwilling witnesses
c Possibility of abuse of premises
d All other practical problems that make a case easy, expeditious and
efficient
2 Public - court system more broadly
a Court congestion
b Local interests in having local controversies decided at home
c Diversity cases in a forum that understands the applicable law
d Fairness of burdening jurors in a court that is unrelated to the issue
b 1406 - If venue is lacking, the federal court can dismiss or transfer to a place where
there is venue (also can transfer to a place where there is PJ, SMJ already exists
because it applies to the entire federal system)
c Forum Non Convenience - only arises in certain circumstances. PJ and Venue are
appropriate but D says there is a significantly more convenient place. Asks judge to
dismiss so the case so P can refile in the better place.
i
Court will often require D to waive right to statute of limitations because of
refiling time
ii
Court is going to give a strong presumption that P gets forum of choice but is
questioned when the P is not from the forum.
iii
Doesn't normally consider change of law that is unfavorable to the P, only if
the change of law means that there would be no remedy at all
Pleadings
a Rule 7
i
Kinds (not exhaustive) 7 total
1 Complaints
2 Answer
3 Answer to Counter Claim
4 Answer to Cross Claims (P sues D1 and D2, D1 cross claims against D2,
D2 must answer)
5 Third party defendant answer (P sues D and D brings in a third party
defendant)
1 Answer to an answer (not required, pretty rare)
b Rule 8 General Rules of Pleading
i
Rule 8(a) Claim for relief must contain 3 elements
1 Short claim stating court's jurisdiction
2 Short and plain statement showing that pleader is entitled to relief
3 Actual request for damages / relief
a Rule 8(a)(2) is what matters for a 12(b)(6) they are mirror images of
each other

In analyzing a 8(a)(2) there can be a legal deficiency or a factual

deficiency
i
Legal deficiency - it isn't a violation of the law or the violation
doesn't have a reward
ii
Factual deficiency I
Conley 1. Only dismiss if there is no set of facts out there that
would entitle to relief. Twombly and Iqbal changed
this prong.
2. Fair notice standard - could contain sufficient
information / facts so that the defendant can start
preparing its defense (should have the who, what,
when, where). This is still good law even after Iqbal.
II
Iqbal / Twombly - must be measured against the
governing law (if negligence then think about prima facie
of negligence).
III
Need facts for each and every element of the prima facie
IV
Problem is when there is a hole in the factual allegations.
1. Twombly - there were no facts suggesting a
conspiracy. Court said it was enough to make a
consistent inference (Iqbal further clarified)
2. Iqbal - no facts suggesting there was an intent to
discriminate based on nationality and religion.
1 Was fair notice provided to D in the pleading?
Consider the entire complaint (facts and legal
conclusion). D needs to know who is suing
and for what.
2 Does the complaint show entitlement to
relief?
1 Twombly - facts given must give a
reasonable expectation that facts found
during discovery will fill in the hole
1 Possible v. Probably
1 Possibly is not enough (Under
Conley this was enough)
2 Probability is not required
3 Plausibility is what you need something like believable,
court is willing to buy it
1 Court uses judicial
experience and common
sense
2 Separate the legal conclusions from the facts
and make your own determination. Accept the
facts as true and use your own experience to
test the legal conclusions.
1 Justice Breyer (dissent) won't accept all
facts as true, no little green men or time
travel
ii
Rule 8(d) Pleadings should be concise and direct
iii
Rule 8(e) Pleadings may be construed so as to do justice
Rule 9 Special Matters
i
Things that may require additional specificity or considerations
ii
Rule 9(b) - fraud, misrepresentation - requires more specificity concerning the
circumstances of the fraud

II

Rule 10 Form of Pleadings

i
Rule 10(a) - must have the names of all parties and titles of other pleadings,
may be general
ii
Rule 10(b) - must have numbered paragraphs
iii
Rule 10(c) - should have references and exhibits
b Rule 3 Commencing an Action
i
A civil action is commenced by filing a complaint with the court
b Rule 11: Good faith pleading by attorney or else (c) sanctions
Defendant's Options
a Rule 12(a) - D has 21 days to respond
b Default (Rule 55)
i
55(a) - Entry of Default - P can by affidavit let the clerk know that D didn't
show, doesn't entitle P to relief. P needs a default judgment.
1 Note: Doesn't count if D is a minor or incompetent person
ii
55(b) - Default Judgment - D or P can default. If entered by the court it can be
entered against a minor / incompetent person only if represented by a legal
guardian etc. If the party shows up then they must be served with written
notice at least 7 days before the hearing. Court needs to
1 Conduct an accounting;
2 Determine the amount of damages;
3 Establish the truth of the allegation by evidence; or
4 Investigate the matter
b Pre-Answer Motion
i
12(b)(1) - last of subject matter jurisdiction
1 Can be raised at any time (even on appeal)
ii
12(b)(2)-5 - lack of PJ, wrong venue, improper process, improper service of
process
1 Waived if not raised in the initial response (Initial Response Rule). They
are personal defenses, if D doesn't care enough to raise them then the
court doesn't care.
a Exception: If initial response is an answer and the you amend that
answer under 15(a)(1) as a matter of course
b Exception: if the response wasn't available at the time
c Hypo: first response, claim lack of PJ - denied, second response
claim wrong venue - can't be raised. On the second response if you
raised wrong venue and no SMJ then the SMJ can be waived but not
the wrong venue
d Hypo: Answer lack of PJ then amended answer claims lack of venue
- depends on the time frame, must be within 21 days
i
Relevant Rules 12(h)(1)(a)(2) and 15(a)(1)
ii
12(b)(7) failure to join a party under rule 19. This may be used with rule 19 to
try to get the whole claim dismissed. Somebody who is necessary who should
be joined but can't be joined therefore the whole thing should be thrown out.
1 12(b)(6) and 12(b)(7) can be raised through trial (really late). There's no
claim or the absent person is necessary then it should be thrown out.
ii
12(e) seeking more specific complaint
iii
12(f) motion to strike, used to strike scandalous or unrelated matters
1 Legal vehicle P can use to get an insufficient answer from D thrown out.
a Example: P sues cop for battery. Cop answers with 2 responses: P is
ugly and cops can beat up anyone whenever they want. Claim 1
can be struck because it is scandalous / unrelated. Claim 2 can be
struck because it is an insufficient defense.
b Answer (Rule 8(b) and 8(c))
i
Admit / Deny - can partially deny and partially admit to a claim if it contains
multiple parts

10

ii

ii
ii

II

Allegation is to admit or deny. Failing to deny is the same as admitting

(exception is for damages)
2
Rule 8(a)
3
Rule 8(d)
Defenses
1 Rule 12(b) defenses that you can still assert
a Waiving of these is handled through the waiver provisions in rule 12
2 Rule 8(c) is a long list of affirmative defenses (not exhaustive)
a Waiving of affirmative defenses is through case law (how long did
they wait, is it unfair to allow them to do it late)
Cross Claims
1 Discussed in Joinder section
Amendments
1 Rule 15(a) - if it is too late or you've already used your one amendment
then you can seek amendment by getting consent from the other side or
through the court (will be granted unless results in injustice).
2 Rule 15(c)(1)(a) - relation back - only if there is a specialized rule or
statute present
3 Rule 15(c)(1)(b) - relation back - statute of limitations problem and
parties are the same but the claim or defense is being changed or added

Joinder
a Rule 18
i
Rule 18(a) - the party that is asserting a claim may assert with that claim any
other claims against that party even if they are unrelated to the original claim
1 Example: P v. D1 and D2 for negligence (three car crash). D1 crossclaims
against D2 is limited, can't sue for unrelated breach of contract under
13(g).
b Rule 13
i
Rule 13(a) - Compulsory Cross Claim 1 Same transaction or occurrence as the claim
2 Can't be pending in an existing proceeding
ii
Rule 13(b) - Permissive Cross Claim - Anything that's not compulsory
1 Usually an unrelated claim or pending somewhere else
ii
Rule 13(g) - cross claims are never compulsory
b Rule 14
i
14(a) - permissive - may serve a summons or complaint if third party is liable
for what is owed to P. Could be that the third party is liable to P or D.
ii
Hypo: P sues D (hospital) for negligence (car crash), Dr. C operates on P.
Hospital also sues Dr. W who was P's doctor somewhere else and Dr. C.
Hospital has an employee relationship with Dr. C. so the hospital is liable for
Dr. C.
1 Indemnification - special relationship makes one liable
2 Contribution - something that one tortfeasor seeks from another, both
are negligent
b Rule 20
i
Permissive joinder of parties requires all of the Ps or Ds are suing for the same
transaction, occurrence, or series of transactions / occurrences.
ii
Hypo: P sues D1, D2, D3
iii
Hypo: P1, P2, P3 sues D1
iv
Hypo: P1, P2 sue D1, D2
v
Be able to explore same transaction / occurrence
b Rule 19
i
Compulsory joinder of parties
ii
Rule 19(a)
iii
First question? Is the person necessary

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iv

II

II

Second question. Is it feasible? Does it destroy diversity?

1 If the person is necessary and it is feasible then the court should join
ii
Rule 19(b) ultimate decision is up to the court.
1 If not feasible then the court must decide to continue without the party
or dismiss. Factors it considers:
a Will a judgment without that person prejudice that person or the
existing parties
b The extent the prejudice can be lessened or avoided by protective
provisions, shaping the relief, or other measures
c Whether the judgment without the party would be adequate
d Whether P would have an adequate remedy if the action were
dismissed for non-joinder
ii
Applies to both plaintiffs and defendants. Parties are supposed to tell the court
if there are any parties that are required to be joined.
1 Usually is asserted by D through a rule 12(b)(7) motion to dismiss
ii
This is a "non-joinder" and is a potential basis for dismissal of the action
b Rule 22 Interpleader
i
Involves property, real estate, bank account, etc. and multiple claimants
ii
Guitar example with three claimants over the found guitar. Finder can drag
them into court and have them plead amongst themselves to determine who
the owner is.
1 Still must have diversity jurisdiction or subject matter (including
$75,000)
ii
Statutory interpleader only requires $500 but there must be minimal diversity
between the plaintiffs (people claiming the guitar), not complete diversity.
b Rule 21 Misjoinder
i
Misjoinder is not a grounds for dismissal. The court can drop a party but keep
the case.
Class Action
a Rule 23(a) - numerosity, commonality, typicality and adequate representation
b Rule 23(b) - types of class actions
i
Rule 23(b)(3) - most common, product liability. Court must conclude the class
action is superior to other methods and that the questions of law and fact
predominate.
Discovery
a Rule 26
i
Rule 26(a) - requirement of disclosures. Disclosures are things you have to
give up even if not asked
1 Rule 26(a)(1) various things like insurance information, names and
locations if you are planning on using it in support your own case
a You don't have to give up information that hurts your case but other
side can seek discovery
ii
Rule 26(b) discoverable information is not discoverable if it is privilege
1 Privileged vs work product
2 Rule 26(b)(5) gives procedure to use if there is a waiver. Privileges
are only gone if they are waived, court can't order away privilege.
Work product the court can take if there is a substantial need for
the information.
1 Rule 26(b)(3) protects work product doctrine (Hickman) - protects
agents, attorneys etc. however it rule 26(b)(3) only protects tangible
objects which is narrower than Hickman
2 Supplement - not necessary if the information has become available to
the other side, otherwise you must continue to supplement once you
have given information

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ii

ii

ii
Rule
i
i
i

Rule
i
i
ii
i
ii

Rule
i
ii

Rule

Rule 26(b)(2)(B) - If the electronic information is not easily attainable

then the party must convince the court it is too much of a burden, other
party can move to compel under rule 37.
4 Rule 26(c) - protective orders, must first assert that the parties have
tried to resolve the issue without court action and then the court can
issue a protective order to stop annoyance, embarrassment, etc.
5 Rule 26(g) - sanction provision, similar to 11(a), must be signed, can't do
discovery to harass or delay
Upjohn - Corporation was asserting attorney client privilege, question was
whose communication within the company counted as privileged.
1 If attorneys are to be retained to represent the interests of an entire
corporation, it stands to reason that the corporations employees should
enjoy the full benefits of attorney-client privilege in their
communications with counsel. Any other holding would have significantly
chilled corporate counsels ability to properly investigate possible
liabilities and therefore impaired their effectiveness.
2 Case by case interpretation - who has the relevant information is the
standard not the control group
3 8 Requirements for attorney-client privilege:
a Where legal advice of any kind is sought
b From a professional legal adviser in his capacity as such
c The communications relating to that purpose
d Made in confidence
e By the client
f Are at his instance permanently protected
g From disclosure by himself or by the legal advisor
h Except the protection be waived.
Hickman - materials are prepared in anticipation of litigation, thus work
product doctrine. The information was the lawyers notes / memories of his
interviews of the witnesses. S.C. denied the other sides ability to get this
information, protected the work product of the attorney
1 Exception: for people who were unreachable
2 Now rule 26(b)
3 Not talking to the client but the witnesses
Rule 26(f) along with rule 16 provide the rules for pretrial conferences
30 - Depositions
Should wait until interrogatories and requests are answered before doing this
Rule 30(b)(6)-Must find someone who can answer the question and they must
be informed
Opposing counsel is present and can object but may only instruct their
witness not to answer to enforce judicial-mandated limits on discovery
33 - Interrogatories
Generally limited to 25
Rule 33(b)-if you don't have the answers to you have to find them.
Rule 33(b)(4)-objections must be stated with specificity and timely.
In corporations, must find someone to be designated to answer them
If the interrogatory requires compiling information, may simply make the
information available to them instead
34 - Request for Documents
Rule 34(a) can request anything within the scope of 26(b), anything having to
do with the trial
Rule 34(b)(1)(A)-objection must be made with particularity (can't just say give
me every time card ever, must specify a date range).
36 - Requests for Admissions

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Scope is 26(b). You can either admit, deny, or say don't have sufficient
information (same as deny). Admissions are used to clear the underbrush.
b Rule 37 - Sanctions
i
Rule 37(a) motion to compel
ii
Rule 37(b) when there has already been a court order response to discovery
and it has been violated.
iii
Rule 37(c) failure to supplement, the information can be precluded from the
trial
iv
Rule 37(d) major or total failure to participate in discovery
Summary Judgment
a Rule 56
i
Rule 56(a) 1 can be applied to the entire case or part of the case
2 Granted if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.
ii
Rule 56(b) any time until 30 days after the close of all discovery.
iii
Rule 56(c)- must show that the fact cannot be genuinely disputed by citing to
particular parts of materials in the record (affidavit, etc.) or showing that the
other party cannot produce admissible evidence to support their side.
iv
Rule 56(c)(3) Materials Not Cited. The court need consider only the cited
materials, but it may consider other materials in the record. - Theoretically a
judge can do outside research
v
Rule 56(d) If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition, the court
may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
I
Rule56(g) gives the court the option to only grant partial summary judgment
II
What does it mean to have a genuine dispute of fact?
a Sham affidavit: you didn't do your homework in preparing the witness
and the witness makes damaging statements so you make an affidavit
disputing the deposition trying to create a dispute of fact.
I Burden of Production v. Burden of Persuasion
a Burden of Persuasion (jury): More likely than not, plaintiff's burden
i
If the defendant claims an affirmative defense (emergency, etc.) they
now have the burden to prove this.
b Burden of Production (judge): Judge trying to make a determination about
judicial resources, is there enough evidence to send to a jury in the first place.
i
If the matter is in equipoise then the judge has come to the conclusion
that a rational jury could go either way then it goes to the jury
ii
Burden of production shifts when the party moving for summary
judgment is claiming that the jury could only side with him
1 The defendant raising summary judgment must do something,
can't just say "you don't have any evidence, show your cards."
II Multiple ways to move for summary judgment
a Put forward their own information
b Celotex route - point out that the other party is lacking evidence to fulfill their
claim
II Adickes: A party that wants to discharge its burden of production must present some
evidence.
a Defendant wanted to discharge burden of production in summary judgment
motiondid not quite get therewould have to put forward evidence that
essentially knocks down evidence the plaintiff would put forth at trial.

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II

b Stands for the proposition that you must prove summary judgment (Celotex
disproves this assumption)
c Celotex: Absence of some element in proving your claim can be fatal when the
other party moves for summary judgment (because plaintiff has burden of
persuasion). Properly applied rule 56.
i
Catrett only presents hearsay evidence which is not disproven
II Scott v. Harris - If there is no question of fact you don't have to make one, only if there
is a genuine dispute as to the facts.
a There are three basic approaches to the question of what burden a movant for
summary judgment should bear
b Adickes approach
i
In order to require a non-movant to respond, a movant must establish
the truth of his position, whether or not he would have the burden of
proof at trial
1 Often associated with Prof. J. William Moore
b Professor Louis approach
i
The movant would only have to meet a burden of production, or to
demonstrate through discovery the absence of proof of an essential
elements of the non-movants case
b Professor Curries approach
i
Summary judgments would be treated in the same manner as a motion
for judgment as a matter of law at trial pursuant to Rule 50, imposing no
burden of production on a movant who would not bear the burden of
production at trial, in order to require the non-movant to come forward
with her supporting evidence
Seventh Amendment & Jury Trial
a Law and Equity
i
Rule 18 combines legal and equitable claims
ii
Under Dairy Queen common issues must be decided by a jury
b Terry Test
i
Is there a cause of action that existed in 1791 that is sufficiently analogous?
ii
The nature of the remedy? Is it equitable or legal?
1 Money = Legal
2 Injunction / specific performance = Equitable
3 Can be exceptions (Dairy Queen)
ii
Justice Brennan (Dissent) said get rid of the first prong, just look at the
remedy
Post-Trial Motions
a Rule 50(a) Directed Verdict (before or during trial)
b Rule 50(b) J.N.O.V. (after trial)
i
Must have moved under 50(a) during the trial to request a 50(b) motion after
b Federal standard is the substantial evident standard. Court is permitted to look at
both sides evidence and ask whether a reasonable juror could find for the
nonmoving party.
i
Doesn't weigh evidence, only looks at evidence that doesn't conflict
b State scintilla rule - only looks at the nonmoving parties evidence, do they have any
evidence at all.
Erie Doctrine
a First question: Is there a conflict between federal and state law
i
If between the constitution and the state law: Constitution wins
ii
If between a federal statute and a state law: Ask if the federal statute is a
valid statute under the constitution and congresses power - if so then the
federal statute wins
iii
If FRCP or REA and state law then you have an issue

15

II

First is a constitutional analysis, presume the constitutional validity of

the federal rule, if it might be is arguably procedural then it is
constitutional
2 Second is a REA analysis - presume the statutory validity (Shady Grove)
a The rule needs to really regulate procedure and should not
enlarge / abridge / modify a state right. This analysis is unclear and
Scalia and Stevens disagree
i
Scalia - Just look at if it really regulates procedure, that's it
ii
Stevens - Look at the nature of the state right and see if is
being impacted in any major way
ii
Federal procedural law and state law: Handled under the Rules of Decision Act
(Hanna 1 and York)
1 Determine if it is outcome determinative?
2 Look to the twin aims of Erie (forum shopping and inequitable
administration of laws). If using federal law would change the result
ii
Federal general common law and state substantial law: S.C. says the state
substantial law wins, Federal courts cannot come up with federal common law
when there is substantive state law(Erie)
1 Determine the relevant state law: Klaxon says use the state law where
the federal court sits. However, sometimes the state law says to use
another state or country's law (this happened in Piper).
a Usually look to the state supreme court to determine what the state
law is. The Erie Prediction or Guess is the district court predicting
what the state supreme court would hold.
Preclusion
a Claim Preclusion
i
Requires the same party and can include things that were or were not
litigated, always look at the call of the question
b Issue Preclusion
i
Can deal with parts of a case, a defense, factual issue
ii
Only applies to issues that were actually decided / necessarily decided
1 Historically involved the same parties or their privies
ii
Mutuality requirement: Federal court says you don't need mutuality anymore
subject to due process
1 If one party is new then you have a non-mutual holding and you can't
use issue preclusion (fair representation / right to argue your own case).
a Only can be used against someone who is privy to or was in the
previous claim
ii
Additional requirements
1 Full and fair opportunity
2 If offensive: Did P in the second suit would have the option to join in the
prior suit
3 Prior and consistent judgments
4 Major differences in the systems

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