CIVIL PROCEDURE

Introduction and Procedural Overview

Stages of a Lawsuit:
1. Plaintiffs Complaint
2. Defendants answer or dispositive motion (i.e. Motion to Dismiss)
3. Discovery
4. Summary Judgment
5. Trial and Appeal
6. *Joinder of claims and parties/rules of preclusion this is not chronological
Where can a lawsuit be brought?
I. Personal Jurisdiction determines where courts can enter a judgment binding on the
defendant
a. Citizenship place of domicile
i. Person: Domicile: physical presence and intent to remain
Hawkins v. Masters Farms
At time of death, Creals permanent address on licesne listed mothers residence in MO. However,
Creal living in a house with wife and her kids in Kansas, had joint checking account in Kansas to
deposit paychecks and pay bills. No subject matter jurisdiction because decedent was citizen of
Kansas at time of death. Defendant establish a physical presence and intent to remain in Kansas.

ii. Corporation: Domiciled in state where they are incorporated and where they have
their headquarters
II. Subject Matter Jurisdiction Federal courts are courts of limited jurisdiction, meaning they
only have legal authority to hear particular types of cases (federal questions and diversity
cases)
a. 28 USC Section 1332 legal representative of decedent is deemed a citizen of the
same state as decedent
b. Rule of complete diversity no plaintiff can be from same state as ANY defendant
In every case, P must establish that court has personal jurisdiction over defendant and
subject matter jurisdiction over the suit.
Stating the Case
I. The Lawyers Responsibility
a. Bridges v. Diesel Service, Inc
i. Bridges files suit against Diesel without exhausting administrative remedies w/
Equal Opportunity Commission and did not display competent level of research
ii. Rule 11(b)(2)- Must do adequate/diligent/competent research before filing a
complaint.
iii. Court can exercise discretion and not impose sanctions.
Example: Civil rights cases (want lawyers to take, dont want heavy burden)
II. The Complaint
a. Bell v. Novick Transfer Co.
i. Infant plaintiff injured in car accident with D
ii. Rule 8 All pleader needs is a short and plain statement of the claim showing
that the pleader is entitled to relief

a) Dont have to specify in complaint and tell other side everything you know;
can save for discovery
iii. Here, not entitled to more definite statement under Rule 12(e) - Defendant
could obtain by interrogatories or other discovery the facts upon which plaintiff
based its allegations.

PERSONAL JURISDICTION
I. Origins of Personal Jurisdiction
Pennoyer v. Neff
Started with unpaid legal fees and constructive service in a newspaper. P won by default judgment and got money
from sale of land to Pennoyer. The Oregon State Court lacked personal jurisdiction to enter an enforceable judgment
against Neff because he was neither personally served with process in the state (in personam jurisdiction) no was his
property attached prior to the initiation of the lawsuit (in rem jurisdiction).
Pennoyer important because it articulated a requirement that the court must have personal jurisdiction over the
defendant to enter an enforceable judgment and that this requirement is of constitutional magnitude.

Rules from Pennoyer:

a. In personam (jurisdiction over person) personal service of process within state
i. Personal Service (Rule 4) deliver copy of summons/complaint to:
a. Defendant
b. At dwelling of defendant to someone of suitable age
c. An agent authorized to accept on behalf of defendant
ii. Constructive service service by publication in newspaper
iii. Consent*
b. In rem (jurisdiction over property within the state) property is attached at filing of
claim/at outset of case
Attachment = legally sanctioned seizure of property
i. Court not concerned with notice of in rem because it assumes that if youre taking
care of property, you will hear about it if it attached by state; if not, too bad.
ii. Allows court to establish jurisdiction over property at time when owners cant be
found
iii. In rem v. Quasi in rem
a. in rem property is source of dispute
b. Quasi in rem attached property is basis for establishing jurisdiction but lawsuit
has nothing to do with property
*Consent:
D gives consent to litigate case in place that wouldnt otherwise have personal jurisdiction by:
a. Personal appearance (waiver)
b. Statutory consent legislature says if you want to do business here, you have to appoint
an agent to accept service
c. Contract
d. Implied consent implicitly consented by crossing border
Procedures for Challenging Personal Jurisdiction:
a. Default judgment and collateral attack

i. Risky because if court disagrees, you must pay judgment and cannot argue case on
the merits
b. Special Appearance (in some states)
c. Motion to Dismiss for lack of personal jurisdiction
i. Rule 12(b)(2) federal courts
d. File an answer in response to complaint and raise personal jurisdiction as affirmative
defense
i. Then promptly move to dismiss
** Must challenge personal jurisdiction immediately! Or court will deem you consented
Side Note: Full Faith and Credit clause
a. Every state has to respect official judgments of other states
b. Federal courts required to give full faith and credit to judgments rendered by state courts
c. Limits on full faith and credit if court does not have jurisdiction
II. Redefining Constitutional Power
A. Establishing Minimum Contacts
International Shoe Co. v. Washington
Facts: Intl Shoe is a DE corporation, having principal place of business in MO. Intl Shoe has
no office in WA and no contacts except that it has salesmen who reside in WA under direct
supervision of main Intl Shoe office. WA court does not have jurisdiction.
Due process requires only that the defendant have certain minimum contacts with the
forum state such that the maintenance of the suit does not offend traditional notions of fair
play and substantial justice.
Two Categories of in personam jurisdiction:
1. General jurisdiction (any lawsuit)
i. When contacts are so substantial and of such a nature as to justify suit against [the
defendant] on causes of action arising from dealings entirely distinct from those
activities.
1. If Ds contacts with forum state are very substantial, can be sued in the state for
any claim, even ones related to its in-state activities
2. Specific Jurisdiction (Jurisdiction for specific claims in question)
i. Minimum contacts?
ii. Related to claim?
iii. Reasonable form of notice?
Minimum contacts based on quality and nature of the contacts
1. Relatedness
2. Level of Activity
a. Was it a single, isolated incident or continuous and systematic?
3. Fairness
Power of court to exercise jurisdiction should arise from the defendants voluntary
relation to the state and minimum contacts jurisdiction is limited to claims arising from
(or related to) the defendants contacts with the forum state
o Consent = doing business in a forum

o Corporation is domiciled where incorporated or where it has headquarters

o CONSENT + DOMICILE = minimum contacts
B. Absorbing In Rem Jurisdiction
Shaffer v. Heitner
The DE Courts exercise of (quasi) in rem jurisdiction violated due process because
defendant did not have minimum contacts with the state. All assertions of state court
jurisdiction must be evaluated according to the International Shoe minimum contacts
standard.
a. Got rid of Pennoyer in rem jurisdiction difference between person and property (no
more attaching property only is sufficient to establish personal jurisdiction);
essentially, jurisdiction over property is jurisdiction over person.
b. Property can be a relevant contact but must be related to claim to satisfy International
Shoe test.
C. Application of International Shoe
1. McGee v. International Life Insurance Co.
Beneficiary of decedents life insurance policy sued out-of-state TX insurance company for payment. D says
only contact with state was the premium notices that it sent to the decedent who resided in CA. D appeals,
saying no personal jurisdiction.

The Due Process clause did not preclude a CA court from entering a binding judgment on a
Texas insurance company because (1) the suit was based on a contract that had a
substantial connection with the state, (2) CA has a manifest interest in providing effective
means of redress for its residents when their insurers refuse to pay claims, and (3) there was
no contention that the defendant did not have adequate notice of the suit or sufficient time
to defend itself.
Texas insurance company reached out to McGee (CA resident) to initiate business.
2. Hanson v. Denckla
Although Mrs. Donner received trust income and carried on some trust administration in
Florida, the trust company did not have minimum contacts with Florida. Donner created
trust with DE trust company when living in DE. She decided to move to FL. They did not
reach out to do business in FL (no office there, did not conduct transactions there, no
solicitation of business).
It is essential in each case that there be some act by which the defendant purposefully
avails itself of the privilege of conducting activities within the forum state, thus invoking
the benefits and protections of its laws.
IV. Specific Jurisdiction: Modern Cases
A. Continued Application of Min Contact/International Shoe
1. World-Wide Volkswagen Corp v. Woodson
Plaintiffs buy a car in NY and are traveling to AZ when they have an accident in OK. File
suit in OK. An Oklahoma court could not exercise personal jurisdiction over a car dealer
and regional distributor from New York because defendants had no contacts, ties, or
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relations with Oklahoma. Foreseeability alone not enough to establish personal

jurisdiction.
Personal jurisdiction (and due process satisfied) if:
1. Defendant purposefully availed itself of the privilege of conducting activities in the
forum state
Ex. Car dealer in KS advertised in OK to come get cars in OK. Will have purposefully availed and
have minimum contacts
Ex. Designed a car that is designated as a sooner-mobile, will appeal to OK football fans and may
attract them. However, did not purposefully avail themselves in OK.

OR
2. Delivered products into the stream of commerce with the expectation that they will be
purchased in the forum state
Ex. There is a KS car dealership on the OK/KS border. Someone gets into an accident in OK. Dealer
should have expected to be subject to jurisdiction in OK because should have known that after
putting stream into car of commerce, it would be purchased by someone from OK.

2. Asahi Metal Industry Co. v. Superior Court

Zurcher lost control of motorcycle on CA interstate, injuring himself and killing his passenger. He filed suit
against Chen Shin, tire manufacturer. Chen Shin (Taiwanese company) files suit against Asahi (Japanese
company), which manufactured valves for tires. Chen Shin claims that 20% of their US sales are in CA and
Asahi was aware of their products use in US. Was mere awareness of Asahi (foreign D) that the components
it manufactured, sold and delivered outside US would reach forum state enough to establish Minimum
contacts? No minimum contacts (just awareness that components could be sold in forum does not constitute
minimum contacts)

A. Minimum Contacts?
i. Plurality Purposeful action by the defendant directed towards the forum state.
ii. Concurrence injecting goods into the stream of commerce with foreseeable
destination
iii. Stevens, concurring depends on volume, value, and hazards character of the
components
B. Fair play and substantial justice (i.e. reasonableness)
i. Burden on defendant
ii. Interests of forum state
iii. Interests of plaintiff
iv. Interests of federal system (especially foreign nations) federalism concerns
8 justices (all except Scalia): Personal jurisdiction in this cause would violate traditional
notions of fair play and substantial justice because the exercise of jurisdiction would be
unreasonable, even if minimum contacts existed.
B. Minimum Contacts and Reasonable Foreseeability
Burger King v. Rudzewicz
Facts: D (MI resident) applied for BK Franchise in MI. Negotiation took place with people in MI office (never
went to FL). Business fell apart, rent unpaid, franchise shut down. BK sues in FL for breach of K (falling
behind on payments) and sued in federal courts because of diversity of citizenship.

Defendant subject to jurisdiction in FL because (1) defendant deliberately reached out

beyond MI and negotiated with a FL corporation for the acquisition of a long-term franchise
(which anticipated continuous, future dealings between the parties) and the benefits that
would derive from affiliation with a nationwide organization, (2) choice of law clause in K
that disputes governed by FL law, and (3) P was sophisticated businessman (reasonable to
require him to defend in FL).
It was reasonably foreseeable that he would be haled into court in FL.
1. Minimum Contacts
a. Purpose of test is to provide individuals with fait warning that their activities within a
forum may subject them to suit there
b. Fair warning requirement satisfied if D has purposefully directed his activities at
residents of forum and litigation results from alleged injuries that arise out of or relate
to those activities
2. Fair play and substantial justice
a. Consider minimum contacts in light of other factors to determine if they comport with
fair play and substantial justice
b. These considerations serve to establish the reasonableness of jurisdiction upon a lesser
showing of minimum contacts
c. When a D who purposefully directed his activities at forum residents, he must provide
a compelling case that the presence of some other consideration would render
jurisdiction unconstitutional
Does wealth of D matter?
a. Burden on D does D have money to defend lawsuit in forum?
i. If they can afford it and knew what they were getting into, more reasonable to
subject P to PJ there
b. Due process/fairness should mean same thing for everyone
C. Specific Jurisdiction Continued
1. Pavlovich v. Superior Court
Facts: Plaintiff, resident of Texas, was the founder and project leader of the LiVid video project (LiVid),
which operated a Web site located at livid.on.openprojects.net. The site only provided information; it did
not solicit or transact any business and permitted no interactive exchange of information between its operators
and visitors. The website posted the source code of a program named DeCSS on its Web site as early as
October 1999. The real party in interest, DVD Copy Control Association, Inc. was the manufacturer of
DeCSS (incorporated in DE, principal place of business in CA). At the time LiVid posted DeCSS, Plaintiff
did not know that the organization manufacturing DeCSS was DVD Copy, or that DVD Copy had its
principal place of business in California until after DVD Copy filed this action. In its complaint, DVD Copy
alleged that Plaintiff misappropriated its trade secrets by posting the DeCSS program on the LiVid Web site.
In response, Plaintiff filed a motion to quash service of process, contending that California lacked jurisdiction
over his person.

The exercise of personal jurisdiction over defendant in CA would violate due process
because his website was neither interactive nor specifically targeted toward the forum and
he lacked knowledge that his activities would cause concrete harm within the state.
Sliding Scale test for internet activities:

1. Clearly doing business in forum = minimum contacts

2. Interactive websites = depends on purposeful action toward forum
a. Was website designed for use in that forum? Target users in forum?
i. Just posting information is not minimum contacts
ii. Just knowing your activity will harm someone in forum is not enough to
establish minimum contacts
b. Level of interactivity between host and users
c. Level of commercialism are website operators making $$ or not?
3. Just posting info = no minimum contacts
2. J. McIntyre Machinery v. Nicastro
Facts: An accident severed four fingers off the right hand of Robert Nicastro who was operating a recycling
machine used to cut metal. A British company manufactured the machine and sold it through its exclusive
U.S. distributor. Nicastro sued J. McIntyre Machinery, Ltd., the British company, and its U.S. distributor,
McIntyre Machinery America, Ltd., in New Jersey state court for product liability.

The New Jersey courts could not exercise personal jurisdiction over an English
manufacturer that neither marketed goods in the state nor shipped them there.
Plurality (Kennedy):
Defendant did not take purposeful action that was directed at the forum state; no minimum
contacts.
A. Due process protects petitioners right to be subject only to lawful authority (as
determined by traditional practice). At no time did petitioner engage in any activities
in NJ that reveal an intent to invoke or benefit from the protections of its laws.
B. Criticizes Brennans Asahi opinion and the dissent on the grounds that they are
inconsistent with the premises of lawful judicial power. * * * Freedom notions of
fundamental fairness divorces from traditional practice cannot transform a judgment
rendered in the absence of authority into law.
Due process = power (stemming from traditional practice); not fairness (or reason)
Breyer, Concurring:
Plaintiff failed to meet his burden to demonstrate that it was constitutionall proper to
exercise jurisidciton over J. McIntyre based on the Courts previous holdings. Plaintiff
loses based on WW VW and other Supreme Court cases; no need to reevaluate personal
jurisdiction here.
Claims that this is an unsuitable vehicle for making broad pronouncements that refashion
basic jurisdictional rules, because this case does not implicate modern concerns, such as
those raised by the Internet.
Ginsburg, Dissenting:
Defendant was subject to personal jurisdiction in NJ because it put its product in the stream
of commerce, knowing that it could be sold there (irrespective of its use of a national
distributor).

Due process = Fairness and Reason; not sovereign power (or tradition)
V. General Jurisdiction
1. Goodyear Dunlop Tires v. Brown
Facts: Accident in France. Plaintiffs from NC. Tires manufactured in Turkey. Plaintiffs sue Goodyear USA
and foreign subsidiaries (France, Turkey, Luxenbourg). Goodyear USA consents to personal jurisdiction in
NC. Foreign subsidiaries challenge personal jurisdiction. Plaintiffs attempt to use stream of commerce
theory to prove personal jurisdiction.

The foreign subsidiaries of Goodyear USA were not subject to general jurisdiction in
North Carolina because their attenuated connections to the State fall far short of the
continuous and systematic general business contacts necessary to empower North
Carolina to entertain suit against them on claims unrelated to anything that connects them
to the State.
Specific jurisdiction (this case) minimum contacts must be related to the claim
a. North Carolina does not have anything to do with case (accident in France, tires
made in Turkey)
b. Business contacts not related to case
General jurisdiction
a. Need continuous and systematic contact
b. Ps are not at home in NC
c. Ds must be at home in foreign state to be sued
2. Burnham v. Superior Court
Facts: Husband files for divorce based on desertion but never served wife with process. She files for divorce
based on irreconcilable differences and serves him when he is in CA visiting his children.

California courts may exercise personal jurisdiction over a non-resident who was
personally served with process while temporarily in the state.
Part II: 4 Justices (Scalia, Rehnquist, Kennedy, White):
Bright Line Rule: Among the most firmly established principles of personal jurisdiction
in American tradition (and one commonly accepted at the Time the Fourteenth
Amendment was adopted) is that the courts of a state have jurisdiction over nonresidents
who are physically present in the state.
Mere physical presence = ability to ber served
Presence unnecessary under Intl Shoe, but sufficient under Pennoyer and traditional
notions
Part II: 3 Justices (Scalia, Rehnquist, Kennedy):
Criticizes the subjectivity, and hence, inadequacy, of Justice Brennans approach.
Brennan, Concurring (joined by Marshall, Blackmun and OConnor):
Case by case Inquiry: The Due Process Clause generally permits a state court to exercise
jurisdiction over a defendant if he is served with process while voluntarily present in the
forum state. Nonetheless, it is necessary to undertake an independent inquiry into the
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fairness of the prevailing in-state service rule. The critical insight of Shaffer is that all
rules of jurisdiction, even ancient ones, must satisfy contemporary notions of due process.
Concurs in judgment because in this case, it is undisputed that petitioner was served with
process while voluntarily and knowingly in the State of California.
Stevens, Concurring
Tradition + Fairness + Common Sense = Easy Case
VI. Consent as a Substitute for Power
Carnival Cruise Lines v. Shute
Facts: Cruise from Los Angeles to Mexico. Mrs. Shute slips and falls (accident takes place on international
waters). Tickets have a forum selection clause that all disputes must be litigated in FL. Supreme Court says
forum selection clause is enforceable.

Fundamental fairness did not preclude the enforcement of a forum-selection clause

contained in tickets issued by a cruise line to its passengers when there was no bad faith,
fraud, or overreaching (i.e. FL was a sensible place to conduct the litigation) and plaintiffs
essentially conceded that they had notice of the provision.
i. Court likes forum selections clauses: eliminated uncertainty, reduces costs, and can
pass savings onto customers.
ii. Enforceability of forum selection clauses is subject to judicial scrutiny for fairness.
If no forum selection clause, where could Carnival be subject to jurisdiction?
i. Florida general jurisdiction because headquartered there
ii. Washington specific jurisdiction because did business with Shutes in WA
iii. California and Mexico specific?
VII. Constitutional Requirement of Notice
Mullane v. Central Hanover Bank
Facts: A trust was created under NY banking law to invest the funds of many small funds. Notice provided in
an NY newspaper.

i. An elementary and fundamental requirement of due process in any proceeding which

is to be accorded finality is notice reasonably calculated, under all of the
circumstances, to appraise interested parties of the pendency of the action and afford
them an opportunity to present their objections.
a. Notice must be reasonable under the circumstances
ii. Notice of Suit
a. Personal service always adequate and ideal form
b. Publication and Attachment caretaker
i. Person taking care of property will know it is attached or someone who is
watching over it will let them know
ii. Here, caretaker has conflicting interests with the beneficiaries problem
c. Unknown Beneficiary have no other way to know addresses so publication OK
d. Known Beneficiary notify by mail; not always sufficient since personal service
is better

SUBJECT MATTER JURISDICTION

I. Federal Question Jurisdiction
Requires:
1. arises under federal constitution or federal laws
a. Federal courts have exclusive jurisdiction over patent law, bankruptcy law, admiralty
2. Federal question must be raised in plaintiffs cause of action in well-pleaded complaint
a. Defenses, counterclaims, etc cannot be used to determine federal question
Louisville & Nashville Railroad v. Mottley
Facts: Plaintiffs were given lifetime railway passes. Congress later made free railroad passes unlawful. The
railroad refused to honor the Mottleys pass citing the new federal legislation. Mottleys sued for specific
performance.

A suit arises under the Constitution and laws of the United States for purposes of 28 U.S.C.
Section 1331 only when the plaintiffs well-pleaded complaint is based upon federal law.
Here, there was no federal subject matter jurisdiction because issues of federal law would
likely arise only as an affirmative defense and in addressing plaintiffs reply to that defense,
not in plaintiffs original claim (which was for breach of contract under state law).
Federal law issues in this case: whether federal statute applies to Mottleys and due process
claim under 5th Amendment. However, these issues are not central to case. Issues are not in
well-pleaded complaint
i. Personal Jurisdiction can easily be waived;
a. Personal jurisdiction is a due process right of defendant; if D wants to waive
individual right = OK
b. Dont raise at beginning, you consent
ii. Subject Matter Jurisdiction not easily waived; court can bring it up, even if you dont
a. Goes to courts authority to hear a case so if there is no subject matter
jurisdiction
b. Cannot be invoked by consent of parties
II. Diversity Jurisdiction
Requires (28 U.S.C. 1332):
1. Diverse Parties citizens of different states
a. Federal court possesses diversity jurisdiction over the actions between:
i. Citizens of different states in the U.S.
ii. Citizens of a state in the U.S. and citizens or subjects of foreign states
iii. Citizens of different states in the U.S. with additional parties who are citizens
or subjects of foreign states
iv. A foreign state as plaintiff and citizens of a state in the U.S.
b. Individuals citizen of state of domicile (physical presence and intent to remain)
c. Corporation citizen of state of incorporation OR headquarters aka principal place
of business

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i. Can only have one principal place of business = nerve center or the location
where the corporations officers direct, control and coordinate te corporations
activities (Hertz)
2. Amount in controversy in excess of $75,000 (cannot be $75k exactly)
1. Redner v. Sanders
Facts: Redner is a US citizen living in France. Sanders are from NY.

The federal district court dismissed a case against New York defendants for lack of
subject matter jurisdiction because there was no diversity of citizenship. The plaintiff was
neither a citizen of France (which would have authorized diversity jurisdiction under
1332(a)(2)) not a citizen of California (which would have established diversity
jurisdiction under 1332(a)(1)).
i. 1332(a)(1) citizens of different states
ii. 1332(a)(2) citizen of a state and citizen of a foreign state
iii. You officially declare citizenship of a county.
iv. No official way to declare state citizenship. Based on: domicile, physical presence,
intent to remain
v. Courts not keen on diversity, hence they interpret it narrowly
vi. Citizenship of corporation: where they are incorporated and where they have
headquarters
vii. Rule of Complete Diversity: No plaintiff can be from same state as any defendant
viii. Family law outside scope of diversity
Hypos. Is there diversity jurisdiction?
1. Redner domiciled in CA and Ds domiciled in NY
a. Yes. 1332(a)(1)
2. CA Redner and another P (NY) v. NY
a. No. Rule of complete diversity no P can be from same state as any D
3. Mexico v. Japan
a. No. Lawsuits between 2 foreign citizens go to state court
4. CA v. Japan and Mexico
a. Yes. 1332(a)(2)
5. CA and Mexico v. NY and Japan
a. Yes. 1332(a)(3) - Citizens of different states and in which foreign parties are added
b. Courts generally treat foreign citizens the same (no designation by country, all = foreign)
6. Ca and Mexico v. Japan
a. No. No complete diversity because foreign nationals on both sides
7. CA v. NJ in divorce suit
a. No. Family law cases outside scope of DJ.

2. Hertz Corp. v. Friend

Facts: Hertz removes case to federal court based on diversity. Hertz is a citizen of CA because that is
principal place of business aka nerve center

The phrase principal place of business in 28 U.S.C. 1332 refers to the place where a
corporations high level officers direct, control, and coordinate the corporations
activities.
III. Supplemental Jurisdiction
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Authority of the United States federal courts to hear additional claims substantially related to the
original claim even though the court would lack the subject matter jurisdiction to hear the claims
independently.
A federal court must have subject matter jurisdiction over each cause of action alleged in the
complaint. Nevertheless, claims that do not provide subject matter jurisdiction may be combined
with appropriate claims through the courts supplemental jurisdiction, provided that they arise
out of the same case or controversy (28 U.S.C. 1367)
Gibbs: Supplemental jurisdiction applicable when dealing with a state and federal claim that
share a common nucleus of operative facts
Sources of Authority for federal jurisdiction over state claims
1. Article III of the Constitution
i. If part of the same case or controversy
ii. When claims are sufficiently related to a federal case so as to form ONE case or
controversy
2. 1367
a) Over state law claims that form same part of case as federal question
-creates sup jurisdiction that arise out od same common nucelus of facts as Ps
original complaint
P v. D federal Q
P v. d2 state law
(if both claims arise out of same nucleus, sup jur for federal ct even if parties are not diverse)

b) Cannot use supplemental jurisdiction if it would violate rules of complete diversity

NOT applicable to federal question cases
c) Court can decline supplemental jurisdiction
--If state law claims raise complex or novel issues, should be decided by state court
--If state law claims dominate over federal claims, state court should decide
--If federal claim gets dismissed (no federal question anymore), federal court should
decline jurisdiction over remaining state law claim
--Exceptional circumstances
d) Plaintiff has 30 days to re-file claim in state court if federal court dismisses it
1. Ameriquest Mortgage Co.
Facts: 3 counts 1. Federal TILA (misleading disclosures), 2. State law fraud, 3. State law fraud.
Defendant moves to dismiss counts 2 and 3 for lack of subject matter jurisdiction.

The district court denied defendants motion to dismiss plaintiffs state law claims for
lack of supplemental jurisdiction because the state and federal claims were connected by
common and operative facts (they were, in fact, inextricably intertwined), and there was
no compelling reason for the court to decline to exercise supplemental jurisdiction.
2. Szendrey-Ramos v. First Bancorp
Facts: The plaintiff, served as general counsel for First Bancorp in Puerto Rico. Szendrey uncovers a report
of ethical and legal violations by the banks officials and finds irregularities and violations of the banks
Code of Ethics. She reports the violations to outside counsel for the bank, the Board of Directors and bank
officials. Szendrey was fired, the bank blaming her for some of the events she investigated. Title VII and
state law claims (of wrongful discharge, defamation, and tortious interference with contract).

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The district court granted defendants motion to dismiss plaintiffs state law claims for
lack of supplemental jurisdiction because the Puerto Rico law claims predominated over
plaintiffs federal claim under Title VII and there were novel and complex issues of
Puerto Rico law.
a. Title VII is a sex discrimination claim not what case predominately about;
mainly wrongful discharge/retaliation against whistle blower
b. Complex issue of PR law: There was a breach of attorney-client privilege to assert
claim against client; can lawyer disclose privileged information? Question for PR
courts
IV. Removal
A defendant may remove a case from state court to federal court if the case originally could have
been brought in federal court. (28 U.S.C. 1441)
28 U.S.C. 1441 Removal of Civil Actions
a. If complaint filed in state court and would fall in original jurisdiction of federal court, P
can remove case to federal district located in the state
Exceptions:
i. Cannot be removed in home state of defendant (diversity designed to protect
defendants from discrimination of out-of-staters, D will not be discriminated against in
home state
c. If federal question in complaint, whole case is removable
-- If there is a federal question, related state claim and unrelated state claim, court should
sever claims over which it has no original or supplemental jurisdiction (aka unrelated
claims) and send back to state court.
28 U.S.C. 1446 Procedure for Removal of Civil Actions
i. 30 days to file notice of removal from time D serve with complaint, otherwise right to
removal is waived
ii. If multiple defendants, all must want removal
iii. (b)(3) If case not originally removable, Defendant has 30 days from time it becomes
removable to file notice
Example: P from MI, D from MI and D from IL. If D fro MI drops out, diversity now exists; 30 days to
file

a. Case may not be removed under (b)(3) if it has been pending for over a year
unless court finds P acted in bad faith to prevent removal
(Intentionally lowballing amount in controversy to stay in state court is bad
faith)
28 U.S.C. 1447 Procedure after Removal
i. Motion to Remand any defect other than lack of subject matter jurisdiction 30 days
ii. Can be remanded at any time during case that it appears court does not have subject
matter jurisdiction (court cannot hear cause they do not have authority to hear)
iii. Order to remand not reviewable on appeal or otherwise
Caterpillar, Inc. v. Lewis
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Facts: Defendant, a resident of Kentucky, filed a lawsuit in Kentucky state court after sustaining injuries while
operating a bulldozer. Defendant named as defendants both Plaintiff Caterpillar, Inc. the manufacturer, a
Delaware corporation with its principal place of business in Illinois, and the company that serviced the
bulldozer, Whayne Supply Company, a Kentucky Corporation. Defendant later entered into a settlement
agreement with Whayne, and shortly thereafter Plaintiff filed for removal to Federal District Court in Kentucky,
asserting diversity jurisdiction. Defendant objected to the removal and moved to remand the case to state court.

A district courts error in failing to remand a case improperly removed is not fatal to the
ensuing adjudication if federal jurisdictional requirements are met at the time judgment is
entered.
Once a diversity case has been tried in federal court, with rules of decision supplied by state
law under the Erie doctrine, considerations of finality, efficiency and economy become
overwhelming.
***BOTH personal and subject matter jurisdiction must be satisfied

Erie Problem: What Law Applies in a Diversity Case?

A. Issue in Historical Context
I. Rules of Decision Act, 28 U.S.C. 1652
The laws of the several states, except where the Constitution or Acts of Congress otherwise
require or provide, shall be regarded as rules of decisions in civil actions in the courts of the
United states, in cases where they apply. (applies in diversity cases)
II. What are the applicable laws of the several states?
a. Substantive Positive Law (statutes, regulations) YES
b. Rules of Evidence and Procedure NO
c. State Common law? MAYBE
i. Swift YES
ii. Erie - NO
III. Swift v. Tyson
1. Supreme Court declined to apply NY common law to commercial law issue in a diversity
case.
2. Court held that decisions of state court are not law (courts do not engage in lawmaking
but rather find the law) and that Rules of Decision Act applied only to substantive
positive law.
3. Federal Courts were otherwise free to apply general law (ie. Whatever rules they
preferred (often favoring business interests))
B. Constitutionalizing the Issue
Erie Railroad v. Tompkins
Facts: Plaintiff was walking down railroad and open refrigerator door took off his arm and argued state law
should apply.

Swift v. Tyson should be overruled, thereby requiring federal courts to apply state
common law in diversity cases.
The Constitution requires federal courts to apply state common law in diversity cases. State
substantive laws apply whether laws created by legislatures or judges. It was already clear
14

that state positive law applied in diversity cases and as Justice Reeds concurring opinion
recognized, no one doubts federal power over procedure.
C. Interpreting Eries Constitutional Command
1. Guaranty Trust Co v. York
Outcome-determinative test: (resulted in application of state law when it conflicted with
federal law (basically all the time because even seemingly procedural things can affect
outcome)
i.
Federal courts sitting in diversity should apply a state law that conflicts with federal
practice when disregarding the state law would significantly affect the outcome of
the litigation.
ii.
The lower federal courts therefore erred by refusing to apply the state statute of
limitations based on a contrary federal practice (should have dismissed case because
state SoL expired).
2. Byrd v. Blue Ridge
The federal court was not required to follow a state supreme court decision holding that the
trial court, rather than a jury, should determine whether a plaintiff was a statutory employee
who was covered by the state workers compensation statute.
The requirement appeared to be merely a form and mode of enforcing the immunity, and
not a rule intended to be bound up with the definition of the rights and obligations of the
parties, and the importance of the federal practice outweighed the likelihood of a different
result in state court.
i. Should not follow state rule if it disrupts judge-jury relationship in federal courts
ii. If you have a strong federal interest and only a marginal chance of a different
outcome, federal courts should follow federal practice.
iii. Developed Byrd Balancing Test
D. De-constitutionalizing the Issue
Hanna v. Plumer
Service of process in a diversity case in federal court is governed by Rule 4 of FRCP.
Framework for Analysis following Byrd and Hanna:
1. Substantive rules of state law apply under Erie. If, however, state-law rule or practice is
rationally capable of classification as either substantive or procedural, then:
2. Does FRCP of federal statute govern the situation and conflict with state law?
a. If so, is FRCP permissible under the Rules Enabling Act (ie. rules of practice
and procedure)? 1652
b. If so, is FRCP or statute constitutional?
c. If 1 or 2, federal rule applies under Hanna. Period.
3. If answer to (2) is no, court should:
(Get to third part of analysis when there is a conflict between federal and state law based
on a federal practice that is not codified (custom/tradition)).
Or answer Question 2 NO based on narrow interpretation of the law.

15

a. Balance the importance of a conflicting federal practice against the likelihood

of a different outcome in state court under Byrd; and/or
b. Examine, under Hanna, whether disregarding the state law would:
i. Encourage unseemly forum-shopping, or
ii. Lead to the inequitable administration of the laws
If so, court should apply state-law rule.
If not, court should apply federal practice.
Example: State statute of limitations expired. P tries to go to federal court. P would certainly lose in state but
could win in federal court.
Forum-shopping
Definitely inequitable administration of laws
Example: legal v. letter size paper
No one forum shops due to this
Example: Voir dire
How important? Would people forum shop because of different state and federal voir dire practices?

Litigation as a Means of Resolving Disputes and Securing Remedies

Remedies:
I. Monetary Damages
a. Compensatory damages restore injured party to position he would have been in were it
not for the other party
b. Punitive damages
II. Specific Relief
a. Injunction P wants court to order D to do or refrain from doing something
b. Declaratory judgment P wants a court declaration of his rights
III. Provisional Remedies parties cannot always wait until time consuming process till the end
of litigation for relief (ex. spousal abuse need restraining order now; protest permit for
parade)
FRCP 65
A. Preliminary Injunction
i. Cannot be issued without notice
ii. Hearing can be merged with decision on the merits
iii. Immediately appealable order
B. *Temporary Restraining Orders (*may come before PI)
i. Can be issued without a hearing for up to 14 days (or longer if D agrees)
ii. Rule requires explanation from P and D to proceed ex parte
i. May get TRO before lawsuit even starts because need it now or would be
dangerous to wait until after suit has been filed
Winter v. NRDC
Facts: Navy with sonar training, without having previously put together environmental impact statement, is violating
NEPA and other environmental laws and they should stop training.

A plaintiff seeking a preliminary injunction must establish (Need all 4):

1. That he is likely to succeed on the merits
2. He is likely to suffer irreparable harm in the absence of preliminary relief
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3. That the balance of equities tips in his favor

4. An injunction is in the public interest
Dicta: Ninth Circuits standard (only requires a possibility of irreparable harm in some
circumstances), is too lenient and that plaintiffs must demonstrate that irreparable harm is
likely in the absence of a preliminary injunction.
Even if you can show irreparable injury, may be outweighed by public interest. (ex. Navys
interest in training effective sailors. National security>speculative environmental concerns)
Hypo: Rio Blanco
Trying to avoid harm of having water shut off (no water to drink)
1. Likelihood of success on merits
2. Irreparable harm only water supply for Navy base; will prevent them from doing exercises/interfere with
national security; no water for people, hospitals, etc on base
3. Balanced equities Harm to Puerto Rico govt Navy freeloading and using more than their fair share of water
(and PR suffering from drought); severely impacts PR people when PR cannot enforce their laws against Navy
4. Public interest

Beginning of the Litigation Process Pleadings

Pleadings -----------> Discovery ----------------> Summary Judgment --------------->Trial

Rule 8(a)
A pleading shall contain:
1. A short and plain statement of the grounds upon which the courts jurisdiction depends
(statement of jurisdiction)
2. A short and plain statement of the claim showing that the pleader is entitled to relief, and
3. A demand for judgment for the relief the pleader seeks (request for relief)
Rule 9: Pleading Special Matters
i.
Certain matters must be pleaded with extra detail/particularity (fraud)
A. Stating a claim
1. General Principles (Rules 7-10)
Haddle v. Garrison
Facts: Plaintiff cooperates with a federal criminal investigation. Subsequently fired from his job. D argues
that P is at-will employee and therefore has no constitutional protections.

The district court erroneously dismissed plaintiffs complaint for failure to state a claim
upon which relief can be grated because interference with at-will employment may give
rise to a claim for damages under the Civil Rights Act of 1871. (Court says Congress

17

likely had tort analogy in mind when they passed CRA because it was tort claim was
cognizable for interfering with employment).
2. Requiring and Forbidding Specificity in Pleading
Bell Atlantic Corp v. Twombly
Plaintiffs complaint did not state a claim for relief under 1 of the Sherman Act because
stating such a claim requires a complaint with enough factual matter (taken as true) to
suggest than an agreement was made. (ie. Plausible factual allegations are required)
i. Not just legal conclusions, need facts (showing pleader is entitled to relief
Ashcroft v. Iqbal
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim for relief that is plausible on its fact. (Twombly standard
applies to all civil actions)
Is a complaint sufficient?
1. Disregard mere legal conclusions (contra Conley v. Gibson) (We begin our
analysis by identifying the allegations in the complaint that are not eniteled to the
assumption of truth.)
2. Assess whether remaining (well-pleaded) factual allegations plausibly give
ruse to an entitlement of relief
a. Is it more likely than that that defendant is liable based on the well-pleaded
facts?
OR
b. Is there a (significantly?) more plausible, alternative explanation
Stradford v. Zurich Insurance Co.
Facts: Insurance policy lapsed and P sends a no claims letter and asks for reinstatement. He reinstates it and
a week later makes a claim for reimbursement for water damage for $150k and insurance pays. Then,
Stradford files another claim for $1.2 million. Insurance company says the damage happened when his
policy lapsed and they will not pay.
Stradford sues insurance company for breach of K. D files counterclaim against P for fraud. P files motion
to dismiss under Rule 9(b) no particularity; insurance company recounted story but did not specify what
the lie was (who said it, what date, what statements were fraudulent); Leave to amend Ds claim flood
happened during lapse and that Ps no claims letter was the lie OK.

Defendants counterclaim failed to plead the circumstances constitution fraud with

sufficient particularity under Rule 9(b) because it did not specifically identify plaintiffs
alleged lies, but the district court granted leave to amend the pleading and concluded that
defendants subsequently satisfied the requirements of the rule.
3. Ethical Limitations
FRCP Rule 11
a. Each document signed by attorney and vouching it is made in good faith (both
facts and legal argument)
b. Acknowledge case law against you and why your case is distinguishable or why
court should overrule previous case law
c. Factual contentions have evidentiary support (or will after discovery)
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d. 11(c)(1) must give other party notice and reasonable opportunity to respond
e. 11(c)(2) give 21 days to correct
f. Court may impose sanctions (not mandatory)
a. Other party can make motion
g. Order to Show Cause (courts initiative)-before case voluntarily dismissed/settled
a. Non-monetary
b. Monetary sanctions to be paid to court
c. Reasonable attorneys fees paid to opposing party
d. Cannot be partys failure to conduct legal research lawyers job
h. Not applicable to discovery
Walker v. Norwest Corp.
Facts: Walker (SD), Norwest (MN), Officers of company (some SD residents). Norwest sends attorney
Massey a letter that there is no diversity and no subject matter jurisdiction, drop case and re-file in state
court. Massey ignored the letter. Brings to court and Ds file Motion to Dismiss for lack of SMJ and Motion
for Rule 11 sanctions Massey must pay.

Plaintiffs complaint violated Rule 11 because it did not even allege that complete
diversity of citizenship existed. Moreover, the district court did not abuse its discretion by
imposing monetary sanctions for this violation or denying plaintiffs motion to amend the
complaint.
i. Massey violated Rule 11(b)(2) in failing to conduct competent legal research.
ii. Rule 11(b)(3) requires factual obligation (to figure out citizenship of people) didnt
know which ones were SD citizens to dismiss them and create diversity
Christian v. Mattel, Inc.
Facts: Attorney Hicks brought suit on behalf of Christian, claiming that Mattels Barbie dolls infringed
Christians Claudene doll sculpture copyright. The District Court found that Plaintiff should have
discovered prior to commencing the civil action that Defendants dolls could not have infringed Christians
copyright because, among other things, the Defendants dolls had been created well prior to the Claudene
doll and the Defendants dolls had clearly visible copyright notices on their heads. After determining that
Hicks had behaved boorishly during discovery and had a lengthy rap sheet of prior litigation misconduct,
the District Court imposed sanctions pursuant to FRCP 11.

Although the district court did not abuse its discretion by awarding sanctions under Rule
11 based on the lawyers inadequate factual investigation, the district courts order was
tainted by its consideration of other misconduct that cannot be the basis for sanctions
under Rule 11 such as discovery abuses, misstatements made during oral argument, and
conduct in other litigation.
B. Responding to the Complaint: Dispositive Motions and Answers (Rules 8, 12)
Rule 12 Pre-Answer Motions
i. Motion to Dismiss right off the bat never have to respond to merits of allegations in
complaint
ii. Subject matter jurisdiction can be asserted at any time
iii. 12(b)(6) Motion for Failure to state a claim upon which relief can be granted
a. assert at any time; P cannot win if he fails to state a claim upon which relief
can be granted
iv. If motion denied, D must file an answer

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Rule 8 - Answers
i. Admit or deny allegations; Cant say I dont know but can say you dont have
sufficient information to admit or deny (treated as a denial)
ii. Respond paragraph by paragraph to corresponding allegations
iii. Can admit some things and deny some allegations from same paragraph
iv. Affirmative defenses at the end of the answer basis for denying Ps claim even if
factual allegations are true
v. 8(b)(6)- if you dont respond to an allegation by denying, then will be deemed admitted
Zielinski v. Philadelphia Piers
Facts: Carload Contractors took over business and leased equipment from Philadelphia Piers. Johnson did not
know because it was a paper transaction. If Johnson had complied with Rule 8(b) and provided a specific denial,
it would have informed the plaintiff that Johnson was not in the employ of PP and thus, would have learned they
sued the wrong defendant.

Defendant violated Rule 8(b) by failing to provide a more specific answer, which would have
provided plaintiff with the information necessary to determine that he sued the wrong
defendant.
The court therefore issued an order that (falsely) instructed the jury that the defendant
employed the alleged tortfeasor on the date of the accident, and explained that defendant
would not be prejudiced by this order because it was represented throughout the litigation by
the same company that insured Carload Contractors.
Bottom Line: Be specific in response to complaint deny specific things, consent to specific
things
C. Amendments to the Pleadings
Why parties amend pleadings:
1. Failure to state a claim upon which relief can be granted not enough factual specificity
a. Can amend with more facts to state grounds
2. Can add things they didnt think of before
3. Parties may want to add claim/defense for something parties learned during discovery
Rule 15
i. (a) Can amend (once) within 21 days without asking permission before other sides
responsive pleading submitted
ii. Opportunities to amend freely given
iii. If other party declines amending, must get courts permission
iv. Relation Back Amendment 15(c)
a. Original complaint, SoL expires and party wants amendment
b. Does amended company relate back to original complaint/did it arise out of same
transaction/occurrence?
Beeck v. Aquaslide N Dive Corp
Facts: P alleges that the slide involved in the incident was manufactured by D. D admitted. Ds want to amend

20

Answer to deny that they are the manufacturers of the slide. Aquaslide moves for separate trial. (If Ds not
allowed to amend, they would be defending design of a counterfeit manufacturer); SoL for accident passed but
Beeck could sue other manufacturer for fraud for counterfeit product to recover (no SoL)

The district court did not abuse its discretion by allowing the defendant to amend its answer to
deny manufacturing the slide because the defendant had a good reason for initially admitting
that it manufactured the slide and the plaintiff would not be unduly prejudiced by amendment.
Nor did the district court abuse its discretion by ordering a separate trial on the issue of which
corporation manufactured the slide because a separate trial would advance the goals of
efficiency and fairness.
Moore v. Baker (violation of informed consent/negligence)
Facts: Original complaint was for violation of state informed consent law (filed on last day of SoL). D files Mtn
Summary Judgment. P tries to amend complaint for medical malpractice and negligence in performance of
surgury and postoperative costs.

The district court did not abuse its discretion by denying the plaintiffs motion to amend her
complaint after the SoL had run on her negligence claim because that claim did not arise out
of the same conduct, transaction, or occurrence as the claims in her original complaint.
i. Violation of consent law would happen before surgery what doctor told patient before
a. Narrow claim
ii. Negligence happened during/after surgery how surgery and postop care were
conducted
a. Broad claim
iii. 2 things happened at different times/focus on different evidence
iv. Hard to add broad to narrow
v. Courts flexible on single transaction based on practical considerations
Bonerb v. Richard J. Caron Foundation
Facts: Original complaint negligent maintenance of bball court at rehab facility. SoL expires. Plaintiff wants to
amend complaint to include counseling malpractice. Here, D should be on notie that they would have been sued
for counseling malpractice also when alleged negligence of bball court.

The amended complaint arose out of the same conduct, transaction, or occurrence as the
original complaint and therefore related back to the filing of the original complaint for
purposes of the statute of limitations because the operational facts of the original complaint
put defendant on notice of the claim that the plaintiff later sought to add.
Moore and Bonerb:
Could argue that courts were wrong in both.
A. Moore
a. Doctor was responsible for all allegations should have been on notice for medical
malpractice
B. Bonerb
a. Maintenance of court done by custodians while counseling done by counselors
b. Original complaint saying this bball was mandatory and P should have never been
made to play during his treatment
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c. So treatment was negligent similarity in problem with treatment

Discovery
A. Possibilities and Limits of Discovery: Relevance and Spoliation
Scope:
i. Non-privileged information matter relevant to partys claim/defenses (that is not
privileged)
ii. Relevant: information reasonably calculated to lead to discoverable information
iii. Not unreasonably Cumulative/unduly burdensome
Stages of Discovery
1. Initial disclosures Mandated for everyone by Rule 26(a)(1) - info that every party has
to provide to opposing party w/o request
a. Need only to disclose info used to support claims or defenses
b. Favorable witnesses and favorable evidence
i. For experts, include name and contact info and expert must prepare a report to
submit to opposing party
c. Request for damages and supporting materials
2. Party-initiated discovery info that one party requests from other side
a. Voluntary; lawyers typically comply
3. Pre-Trial disclosures info every party has to give to other party right before trial;
basically final/revised draft of initial disclosures
a. Witnesses, specific testimony, documents, exhibits
b. 30 days before trial
c. in writing, signed and served
d. court rules on all objections
FRCP 26
(a) Cant not disclose because other side didnt
Identify any testifying experts a party may use at trial
26(b)
In general, parties may obtain discovery regarding any nonprivileged matter that is relevant
to any partys claim or defenseFor good cause, the court may order discovery of any
matter relevant to the subject matter involved in the action. Relevant information need not be
admissible at the trial if the discovery appears reasonably calculated to lead to the discovery
of admissible evidence
Limitations:
1. When permitted the court may alter the presumptive limits and set forth in the rules on
the number and length of depositions, and the number of interrogatories and requests for
admissions
2. When required the court must limit the frequency or extent of discovery otherwise
allowed if it determines that:

22

a. The discovery sought is unreasonable cumulative or duplicative or more easily

available from another source
b. A party already had ample opportunity through discovery to obtain the
information
c. Unduly burdensome burden or expense of the proposed discovery outweighs its
likely benefit under the circumstances
i. Need not provide discovery from electronic sources as not reasonably
accessible because of undue burden or cost
Davis v. Precoat Metals
Facts: Hostile working environment in terms and conditions of employment. Also making comments in the
workplace and making them feel uncomfortable. Plaintiffs want prior complaints of race discrimination from
other employees at the same plant.

Defendant was compelled to produce complaints of race discrimination that were recently
filed by other employees in the same plant because this information was relevant, and
plaintiffs requests were narrowly tailored to the specific claims in the case.
i. Relevant establishes pretext if others complaining of discrimination, likely D is
engaging in it
ii. Relevant to hostile work environment if tons of people think they are discriminated,
more likely
iii. Court says not burdensome because request specifically to race discrimination (same as
complaint) in same plant
3 Questions for Discovery
1. Is information privileged?
2. Is information relevant? (make material facts more/less likely to be true)
3. Would it be unduly burdensome to produce (given needs of case)?
Steffan v. Cheney
Facts: Plaintiff sues for constructive discharge alleging miltarys policy of excluding gays and lesbians is
unconstitutional. During depositions, DOJ asks plaintiff if he ever engaged in homosexual conduct. He refuses
to answer (even after court order).

The district courts discovery order and subsequent dismissal of the case was based upon an
error of the law, because judicial review of an administrative action is confined to the
grounds upon which the record discloses that the action was based. Since plaintiff was
discharged for declaring his sexual orientation, whether he had engaged in homosexual
conduct was irrelevant.
Silvestri v. General Motors Corp.
Facts: Silvestry hires attorney Moench, who hires accident reconstruction experts. Specialists coclude that
airbags should have deployed and suggest to Moench that he should let GM see the vehicle. Neither plaintiff
nor Moench took steps to preserve the vehicle or notify GM of potential claim.

Dismissal of the plaintiffs complaint as a sanction for the spoliation (destruction, material
alteration, failure to preserve property for anothers use as evidence in pending or reasonably
foreseeable litigation) of evidence was not an abuse of discretion because plaintiff violated
23

his duty to notify defendant of the existence of the evidence, and defendant suffered
extraordinary prejudice as a result.
i. Defendant cannot defend case by having its own expert look at car failed to give them
equal opportunity to inspect
ii. Owed a duty to inform GM of existence of evidence
B. Surveying Discovery: Procedures and Methods
Rule 26: Privileged Matters
i. Attorney-Client privilege: communication between client and lawyer rendering legal advice
privileged during discovery
a. Employees of a corporation are clients in case and their communication with
lawyer are privileged
ii. Attorney work product
iii. Doctor-patient
a. P can waive this for personal injury cases
iv. Deliberative process privilege: pre-decisional advice rendered by public officials on public
policy matters
Tools for Discovery
1. Depositions (Rule 30) interview of a witness or party under oath that is transcribed
i. Any person with discoverable information can be seved
ii. Each party will have their lawyer there
iii. Non-party witnesses may also have lawyer
iv. (b)(6) can take depo of an organization; org must designate person to testify on its
behalf; obligation to produce a witness to knows information
v. (c)(2) objection during depo must be noted but still proceeds
a. can only refuse to answer to enforce privilege, violate court order, or make
motion that other lawyer using bad behavior
vi. (d)(1) limited to one day, 7 hours
vii. Rule 32
a. Depos can be used at trial
b. Can be used to impeach witness based on earlier testimony
c. Objections to relevance always preserved (even if not brought up at depo)
d. Objections to form of question are waived if not brought up at time
2. Interrogatories (Rule 33) written questions you submit to opposing party they must answer
truthfully, under oath
i. To a party
ii. Limit 25 questions, answer within 30 days
iii. (d) can tell inquirer to figure it out for themselves if it would be same amount of work for
both parties
3. Production of Documents (or things) (Rule 34) parties wan all relevant documents in
possession of other party
i. Includes photos, videotapes, emails on hard drives and backup tapes
ii. May be issued to parties and non-party witnesses
iii. Produce documents in the way they are in daily business or way they are requested

24

4. Physical and Mental Exams (Rule 35)

i. Need to get courts permission to take exam of a party
a. If his condition is in controversy (important to the case) and good cause (exam will
be useful)
ii. Person who gets exam is entitled to copy but then you have to give your medical records
to other party
5. Requests for Admissions (Rule 36) trying to force other party to admit things you think are
undisputable to make issues narrow for trial
i. Admission for pending action only
ii. Respond within 30 days or everything admitted
iii. Answer like an Answer admit, deny or assert you lack info
Sanctions (Rule 37)
i. (a) authorizes Motion to Compel Discovery if party refuses to produce something in
discovery and other party think they are entitled to documents
C. Limitations: Privilege and Trial Preparation Material
Hickman v. Taylor essentially codified in Rule 26(b)(3)
An attempt, without purported necessity or justification, to secure written statements, private
memoranda, and personal recollections prepared or formed by an adverse partys counsel in
the course of his legal duties falls outside the arena of discovery and contravenes the public
policy underlying the orderly prosecution and defense of legal claims.
i. Court protects attorneys work product
Categories of Information (Rule 26(b)(3)):
Attorney work product can be overcome if there is substantial need for information and
cannot without undue hardship obtain info from other means
1. Underlying Facts not protected from discovery
2. Attorneys Memos qualified privilege potentially overcome by necessity
3. Mental Impressions absolutely protected
D. Limitations: Expert Information and Privacy Concerns (Rule 35)
Testifying experts: views freely discoverable
Non-testifying experts: views not subject to discovery
Thompson v. The Haskell Co.
There were exceptional circumstances justifying the disclosure of a non-testifying
psychologists observations because the plaintiffs mental and emotional state ten days after
her termination was highly probative to an essential element of her case and the defendant
could not obtain the information contained in the report by any other means.
i. Plaintiff was fired from job and lawyer recommended she go to psychologist
ii. Retained in anticipation of litigation
iii. Even though psychologist was a non-testifying expert, report subject to discovery
because defendants own exam, months later, would not be as useful as psychologist who
observed plaintiff near time of events

25

Chiquita International Ltd v. M/V Bolero Reefer

There were no exceptional circumstances warranting discovery of the observations of
plaintiffs non-testifying expert witness because the defendant was not precluded from
sending its own expert to the scene by forced beyond its control.
i. Was defendants ship, could have sent an expert at any time court will not let them
freeload off plaintiff
ii. Plaintiff hired expert to inspect ship in anticipation of trial (non-testifying expert)
Stalnaker v. Kmart
The court granted a protective order to preclude discovery of voluntary sexual activities of
non-party witnesses, except to the extent that they involved Mr. Graves (the alleged
perpetrator of sexual harassment) and showed conduct on his part to encourage such activities.
i. Highly relevant to the case
ii. Burden exceeds benefit extremely invasive (but here, highly relevant)
iii. Voluntary relations relevant shows tendencies of Graves to come onto coworkers

Summary Judgment
Rule 56:
A court shall grant summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to relief to a judgment as a matter of law.
Used successfully in 2 categories of cases:
1. Pure Question of Law
a. Requires consideration of undisputed evidence outside pleadings
b. Everyone agrees what happened and question is a matter of law
i. Whether policy is constitutional or not (court will resolve issue of law, no need
for trial because no dispute of question of fact)
2. One party moves for SJ based on evidence and facts are so one-sided that trial is
unnecessary
a. Show with affidavits, documents, depos/interrogatories/admissions
b. No genuine issue as to matter of fact and they all weigh to one side
Celotex Corp v. Catrell
Responsibility of Moving Party:
Canvass Record: Of course, a party seeking summary judgment always bears the initial
responsibility for informing the district court of the basis of its motion, and identifying those
portions of the record that it believes demonstrate the absence of a genuine issue of material
fact.
But not refute claim: There is no requirement in Rule 56 that the moving party support its
motion with affidavits of other similar materials negating the opponents claim. Rule 56(c),
which refers to the affidavits, if any, suggests the absence of such a requirement. Moreover,
the burden of the moving party may be discharged by showing that is, pointing out to the
district court that there is an absence of evidence to support the non-moving partys case.
i. D does not need to refute Os claim
ii. Enough for D to say that P has no evidence (that P was exposed to Ds product)
iii. P needs to canvass record and express rationale for its motion for SJ

26

iv. P has to produce evidence that would allow a rational jury to conclude that decedent had
been exposed to Ds product
Responsibility of Non-Moving Party who bears burden of proof:
Produce cognizable evidence that establishes genuine issue of fact for trial:
Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery,
against a party who fails to make a showing to establish the existence of an element
essential to that partys case, and on which that party will bear the burden of proof at trial.
The standard for summary judgment mirrors the standard for a directed verdict under Rule
50(a).
SJ is an integral part of the Rules: (not something the court should refuse to grant in certain
cases). Before the shift to notice pleading, accomplished by the Federal Rules, motions to
dismiss a complaint or to strike a defense were the principal tools by which factually
insufficient claims or defenses could be isolated and prevented from going to trial. But with
the advent of notice pleading, the motion to dismiss seldom fulfills this function anymore
and its place has been taken by motion for summary judgment.
Bias v. Advantage International, Inc.
Summary Judgment was granted in favor of defendants because it was undisputed and that
Bias was a drug user who could not have obtained a valid life insurance policy prior to his
death.
i. No genuine issue of fact
ii. Undisputed drug user: specific eyewitness testimony from partygoers trumps general
(from partens, coach) who were just with him on occasion
iii. Undisputed that he could not get life insurance policy

The Division of Authority Between Judges and Juries

A. Judgment as a Matter of Law (Rules 50, 51)
Timing:

Must make directed verdict motion or else you waive right to JNOV later
Rule 50(a) judgment as a matter of law: whether a jury could find in favor of nonmoving party based on evidence

Directed Verdict
Pennsylvania Railroad v. Chamerlain
Facts: Crash in railroad yard in which plaintiff died. Plaintiffs case was based entirely on Bainbridges
testimony.

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The defendant was entitled to a directed verdict because a reasonable jury could not conclude
that defendants negligence caused the accident.
1. Plaintiffs circumstantial evidence supported conflicting inferences
2. Defendant presented uncontradicted, direct evidence to defeat liability
a. D presents direct eyewitnesses that said no crash occurred; actually in a position
to see what happened
3. The testimony of plaintiffs witness was not credible
B. New Trials and Limits on Jury Impeachment (Rule 59)
JNOV no evidence from which a rational jury could have found in favor of party who
won verdict; JNOV = final judgment, so immediately appealable
Motion for New Trial (Rule 59) filed by party/entered sua sponte by court; evidence so
in favor of one side
o Correct flawed procedures something happened at trial that made it impossible
for jury to make correct decision (ex. judge allowed evidence that should not have
been admissible, jury instructions erroneous)
o Correct flawed verdicts if jury goes against great weight of evidence
Lind v. Schenley Industries
Facts: Jury finds for P. Trial judge grants new trial because the jury verdict was against the great weight of the
evidence. Case turns on credibility determination (of witnesses/P/D). Granting a new trial infringing on jurys
role. There was evidence in the record, if believed, could have lead jury to decide for P.

The district court substituted its judgment for that of the jury and therefore abused its
discretion by granting defendants motion for a new trial in a simple case turning entirely on
credibility determinations
Dissent: Wide discretion should be accorded to the trial judge because granting a motion for
a new trial has provided the one important limitation on the power of the jury to make an
unimpeachable decision on the facts, even where the evidence is conflicting.
i. Only safeguard is to grant new trial P will still have right to jury trial
ii. judge was there, should defer to trial judge
Peterson v. Wilson
The district court abused its discretion by ordering a new trial based on ex parte comments
made by jurors to the court indicating that the jury had disregarded its instructions. The jurys
verdict cannot be impeached based on evidence of its deliberations; a court may only
consider evidence of improper outside influences for this purpose.
i. New trial = abuse of discretion
ii. Evidence of jury deliberations cannot be used to grant new trial
iii. Improper outside influences CAN be considered to grant new trial
a. Threat, bribe, one juror threatening another

Respect for Judgments

A. Claim Preclusion (Rule 13) preventing a party from litigating a claim that was or should
have been litigated in a prior case

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Traditional Approach one suit precludes a second where the parties and the cause of
action are identical
Restatement of Judgments (federal courts follow modern approach) all claims arising
from a single transaction must be litigated in a single, initial lawsuit, or be barred from
being raised in subsequent litigation
Generally, claim preclusion can only be invoked against someone party to first suit
If first case litigated in federal court based on diversity of citizenship, Apply preclusion
law of court in which the law sits in subsequent cases

Frier v. City of Vandalia

Facts: Friers cars were towed. P sues city for replevin. Loses case in state court. Files in federal court.

Majority: Frier should have asserted his constitutional claim against the city in the initial
lawsuits because both actions involved the same common core of operative facts and the
same transaction.
Concurrence: Rejects the application of res judica based on Illinois continued adherence to
the traditional approach, but would affirm the district courts judgment on the merits.
Hypos:
1. First case in federal court based on federal question. Second suit is federal law of
preclusion
a. Federal law follows restatement
b. State and federal courts generally have concurrent jurisdiction over federal
questions
2. First claim in state court based on special procedure for expedited replevin action (can
only sue for replevin and cannot assert other actions).
a. No preclusion. If he could not have brought other claims in first one, not
precluded in second
3. Third claim for overcharging on tax bills.
a. No preclusion. Different transaction and different cause of action.
Searle Brothers v. Searle
Facts: First suit = Mr. and Mrs. S in divorce; Slaugh house awarded to Mrs. S. Second suit = partnership v. Mrs.
S for title to Slaugh house.

A partnership was not precluded from litigating its alleged ownership interest in property
based on prior litigation because it was neither a party to the prior action nor in privity with a
party.
Crockett, Dissenting: These plaintiffs, the sons of the parties to the divorce action, were
sufficiently involved and interest therein that they should properly be regarded as parties in
privilty thereoto.
Taylor v. Sturgell
Lawsuit 1: Herrick v. FAA (federal court/FOIA. P lost.

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Lawsuit 2: Taylor v. FAA (federal court/FOIA).

No claim preclusion (not a party in previous action); rejects idea of virtual representation

Taylors FOIA claim was not precluded on the theory that he was virtually represented in
the prior litigation by Herrick because Taylor was not a party to the first suit, and the
application of claim and issue preclusion to non-parties runs up against the deep-rooted
historic tradition that everyone should have his own day in court.
i. Fundamental rule that you have to be a party to suit to be precluded
ii. Requires knowledge of representation formally representing another party
iii. Decision based on federal common law because it was a federal question
iv. If it was a diversity case, court would have followed claim preclusion law of state in
which court was sitting
Gargallo v. Merrill Lynch
A prior state court judgment does not bar a subsequent federal lawsuit on the same cause of
action when the state court lacked subject matter jurisdiction over the action.
i. Was there a judgment on merits in first case?
ii. If so, would second lawsuit normally be precluded under relevant rules of claim
preclusion?
B. Issue Preclusion only precludes issues that were actually litigated, doesnt have to be same
claim
o

Ex. 2 separate car accidents with 2 people. First case it is decided that one driver was required to wear
glasses. In second suit, (second suit not precluded because totally different accident), but eyeglasses
issue prevented from being litigated again

Restatement Second, Section 27: When (1) an issue of fact or law is (2) actually litigated and
determined by (3) a valid and final judgment, and (4) the determination is essential to the
judgment, the determination is conclusive in a subsequent action between the parties, whether on
the same or different a claim.
Illinois Central Gulf Railroad v. Parks
Lawsuit 1 (State ct IN): BP (personal injuries) v. IC Bertha wins
JP (loss of consortium) v. IC Jessie loses because contrib negligent
Lawsuit 2: JP (personal injuries) v. IC claim preclusion and issue preclusion
o No claim preclusion because IL follows traditional approach not same cause of action
o NO Issue Preclusion RR failed to satisfy burden of showing that the issue of contributory negligence
was litigated and decided against Jessie in first lawsuit. (he could have lost case for other reasons.. jury
not persuaded that he suffered damages for loss of consort. Not that he was necessarily contrib neg)
Jessie might want to invoke issue preclusion against RR from re-litigating their negligence regarding their
accident
o The only way for bertha to win case is for jury to find that RR was negligent and that they caused her
injuries

Plaintiff was not barred from re-litigating his alleged contributory negligence because
defendant failed to meet its burden of showing that the issue was actually litigated and
decided in prior litigation between the parties.
Alternative Grounds for Decision:

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1. District Court Decision: The first Restatement of Judgments took the position that when
alternative grounds for decision existed, both should be precluded in subsequent
litigation. The Restatement (Second) of Judgments Section 227 Comment I opines that
neither determination should be binding in subsequent litigation
2. Decision of Court of Appeals: Comment o describes the preclusive effect of alternative
grounds for decision when there is an appeal, and essentially provides that issues that are
affirmed on appeal have preclusive effect, while those that are not addressed by the
appellate court do not, even when the district courts judgment is affirmed.
i. Whatever issues court of appeals addresses have preclusive effect
ii. Whatever issues court of appeals does not address does not have preclusive effect
Parklane Hosiery Co v. Shore Offensive, Non-mutual collateral estoppel
#1) SEC v. Parklane false and misleading proxy statement D lost
#2) Shore v. Parklane false and misleading proxy statement
Shore trying to invoke issue preclusion by filing partial summary judgment saying Parklane should be
prevented from re-litigating issue that its statement was false and misleading
Should court allow for Offensive Non-mutual Collateral Estoppel (ONCE) New party wants to invoke
issue preclusion against someone who was a party to earlier proceeding but they were not (ie. Parklane party
to both cases but Shore not P in first case)
If Parklane won, could not preclude because Shore not a party to the first case and everyone entitled to their
day in court

The preferable approach for dealing with the potential problems of offensive, non-mutual
collateral estoppel in the federal courts is not to preclude the use of the doctrine, but to grant
trial courts broad discretion to determine when it should be applied.
Factors to consider:
1. Could plaintiff have easily joined the prior action?
2. Were the stakes in the first lawsuit sufficiently high?
3. Would the second lawsuit provide additional procedural safeguards?
4. Are there already inconsistent judgments on the issue?
5. Are there other reasons to question the reliability of the prior judgment?

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 Stakes in first case not high enough, inconsistent judgments, not great procedures
may not give preclusive effect

Joinder of Claims and Parties

A. Joinder of Claims (Rules 13, 18)
Rule 18(a) joinder of claims in federal court
Counter-claim (D against P)
o D v. P
Cross-claim (more than one D in case and one D wants to sue the other)
o D v. D
Third party claim original D wants to assert claim against 3rd party based on theory that
if original D is held liable to P, third party needs to reimburse D for portion of its liability
Rule 18 does not require parties to join claims but the failure to do so may require claim
preclusion

Rule 13: When D files answer, should also submit compulsory counter-claims; if D fails to
submit counter, prohibited from doing so in the future
If D has claims against P that arises out of same transaction/occurrence (must bring them
up) but can also (dont have to) bring up claims for something else unrelated
Joinder problems always involve 2 questions
o 1. Is joinder allowed by the rules (Rule 14)?
o 2. If so, does the court have jurisdiction over the claims and the parties?
If D not subject to personal jurisdiction in forum court cannot exercise
jurisdiction over them
If no SMJ, court cannot exercise SMJ
Cannot use it to get around complete diversity
Plant v. Blazer Financial Services
The creditors action to recover an unpaid debt is a compulsory counterclaim (subject to
supplemental jurisdiction in federal court) in a lawsuit brought to enforce the Truth in
Lending Act because both claims arise out of the same transaction or occurrence.

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i. Same transaction/occurrence = compulsory counter claim and can join

ii. Not out of same transaction = permissive counter claim and rule 13(b) allows joinder
B. Joinder of Parties (Rules 14, 20, 21, 42)
Rule 20: Permissive Joinder of Parties
i. Multiple Ps can join to file a lawsuit to file against multiple Ds
ii. 2 requirements to join as Ps
1. Assert claims that arise out of the same transactions or occurrences
2. There is a common question of law or fact (that would arise in claims being
asserted by each P)
iii. Protective measures
a. Ps asserting claims that have no bearing on 3rd D, could order separate trial to
protect D3 from prejudice
Rule 21: Misjoinder/Nonjoinder of parties
i. Can challenge joinder of a party and party may be dropped from case
ii. not a grounds for dismissal for prejudice
iii. If it would be unwieldy to handle a case with so many Ds or claims, can break up into
separate, smaller units
Rule 42: Can break up into smaller units on courts own motion
i.
Consolidation consolidate pending actions that involve common question of law or
fact
ii.
Separate trials (on particular claims or particular issues)
a. To avoid prejudice, expedite and economize
Mosley v. General Motors Corp
10 Ps v. 3 Ds (2 divisions of GM and the union) violations of Title VII, race discrimination, sex discrim,
hiring, promotions, firing, retaliation claims
Directed each P to bring separate actions (dist ct agrees) certified
Complaint = common question of fact, same transactions (same discriminatory policy)
Ds dont want Ps to join because jury will hear multiple counts of discriminatory activities all at once
instead of just one, which may be harder to believe

The district court abused its discretion by severing plaintiffs actions because their
allegations of a company-wide policy of employment discrimination arose out of the same
series of transactions and occurrences and involved a common question of law or fact under
Rule 20(a).
P v. D v. 3PD
D thinks there are other parties that should be involved
D can bring non-parties into case in 3 ways
Rule 14 authorizes derivative liability
o 3PD should be required to reimburse D for 3pds portion of the liability
Rule 13 (h) - ****ON EXAM***
Allows D to bring others into case when case should not go forward without that
person
o New D can be added when requirements of rule 20 are satisfied (same thing for
D asserting cross claim and bringing in new D pursuant to rule 13(h) and 20 req)
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Price v. CTB, Inc

Price v. Latco defective chicken house (fed dist ct in AL diversity)
Latco v. ITW defective nails

Under Rule 14(a), a defendant may assert a claim against someone not a party to the
original action if that third partys liability is in some way dependent upon the outcome
of the original action. The third party liability must in some way be derivative of the
original claim; a third party may be impleaded only when the original defendant is
trying to pass all or part of the liability onto that third party.
Because Rule 14 is merely a procedural rule, the propriety of its application depends upon
the existence of a right to derivative liability under the substantive law (contribution in tort or
indemnification of contract).
Although Alabama does not recognize a right to contribution among joint tortfeasors, it does
recognize a doctrine of implied contractual indemnity where (1) the seller is without fault, (2)
the manufacturer is responsible, and (3) the seller has been required to pay a monetary
judgment. Because this doctrine could apply under the circumstances, Latcos third-party
complaint against ITW was proper.
Hypo: Could Latco have used Rule 14 to implead a neighboring farmer who vandalized Ps
chicken house?
o No. No substantive basis for derivative liability.
o Not joint tortfeasors (no contribution in tort)
o No indemnification in K
Cant use rule 14 to implead someone you are accusing of liability if no basis for derivative
liability (when you are saying, its not him, its me)
Still could have blamed farmer, but as a defense. Not a third party claim.
Rule 13(b): 2) permissive counterclaim (optional): any claim that does not arise out of the
same transaction or occurrence, the defendant can sue plaintiff for those things. Defendant can
sue, but dont have to sue these things.

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