A.

Introduction
2. Substance and Procedure
Sibbach v. Wilson (1941)
Facts

Plaintiff: Sibbach
Defendant: Wilson
Sibbach brings personal injury suit against Wilson; Wilson denies allegations of
injuries
o needs to know the extent of the injuries
FRCP 35 Wilson moves to order to demand a physical examination to find the
nature and extent of the injuries
District Court orders examination
o Sibbach refuses to comply

Procedural History
Illinois District Court holds Sibbach in contempt
7th Circuit: Affirmed
SCOTUS: grants cert
Rules
Rules Decision Act (RDA): 28 USC 1652
o State laws provide the rules of decision (substantive laws) even in federal
courts where action takes place

o EXCEPTION
except where federal law otherwise requires or provides
o Consequence
Federal Courts have to apply Substantive Law of The States as rules of
decision where state law is in question
Rules Enabling Act (REA): 28 USC 2072
o SCOTUS prescribes rules of procedure in US district courts
o Rules shall NOT
abridge, change, or modify a substantive right
can we ignore this?
o Conformity
did away with conformity act. Any conflicting laws at state level have
no effect
o Consequence
In federal court, we must follow Federal Rules For Civil Procedure
FRCP
FRCP Rule 35 Procedure or Substance?
o Procedure: The court MAY make a party submit to a physical or mental exam
Illinois Substantive Law no medical examination
Indiana Substantive Law medical examination allowed

Issue
Whether a rule that affects a substantial/important right (freedom from unlawful
invasions of privacy) exceed the SCOTUS authority to promulgate (promote)
procedural rules under the REA.
Rationale
Separate Piles View procedural or substantive (one of the other)
If the medical examination is a substantive right (decides rights and duties of
different people)

o then, RDA
We apply Indiana law (where accident occurred)
If the medical examination is a procedural law (what happens after those rights are
infringed/ anything that involves litigation)
o then, REA
We apply FRCP
Test of Whether a Rule is Valid?
o whether rule really regulates

Holding/ Takeaway
FRCP Rule 35 is valid because it really regulates procedure in Federal Court
SCOTUS may make any rule valid if it really regulates procedure (regardless of
whether it abridges, enlarges, or modifies a substantive right?)
Notes
How are FRCP rules made?
o Modifications recommended by Judicial Conference of the US
o Promulgated (promoted) by SCOTUS
o Congress has 7 months to veto if no veto, rule in question becomes part of
FRCP
o Judicial Conference SCOTUS Congress FRCP

B. Phases of the Lawsuit

1. Introduction to Pleading

INVESTIGATION/ PRE-COMPLAINT

T0:
wrongs

PLEADING

Reasonable
Inquiry/Investigation:
Fed. R. Civ. P. 11(b)

T1: files Complaint

Fed. R. Civ. P. 3, 8(a), 10,
11(b)

INVESTIGATION
Every civil lawsuit starts off the same way
Defendant wrongs/harms Plaintiff, then plaintiff files complaint
Up to here, substantive defines the rights of the parties.
Examples
o Defendant crashes car into plaintiff
o Defendant breaches contract with plaintiff
o Defendant embezzles plaintiffs money
Who can be the plaintiff?
o anyone who has rights
business, person, personal representative, estate of dead
Everything after, procedure determines course of lawsuit (Sibbach)

Reasonable Inquiry/Investigation: Rule 11(b)

By signing the complaint, plaintiff certifies that information contained in the
complaint was formed after a reasonable inquiry under the circumstances
So, theoretically, this means that the plaintiff or their attorney actually did the inquiry
prior to filing the complaint
Complaint
What does a complaint do?: Rule 3
Civil action (lawsuit) begins
First opportunity to compel evidence
o Plaintiff writes down allegation as a matter of fact and law
o Defendant affirms or denies allegations
o Response forms first evidence
First opportunity to write something persuasive to the court
o has to meet a certain threshold to be allowed to move forward
What does a Complaint look like?: Rule 10 and Form 11
Caption provides courts name, title, name of parties
Paragraphs state claims in numbered paragraphs
o Must be simple, short, and concise Rule 8(d)(1)
Outside of these rules, there are no other requirements
o Titanic Napkin Example
o Form 11 is NOT required just a suggestion
Elements of a Complaint: Rule 8(a) complaint requires a short and plain statement
of a claim showing that the plaintiff is entitled to relief

1. Statement of Jurisdiction: must be short and plain. States why that court has the
right to hear the case and why the court would have the power to enforce its
judgment.
o Subject Matter Jurisdiction
Diversity of Citizenship or Federal Question (or Supplemental
Jurisdiction)
o Personal Jurisdiction
Power of the court to enforce a judgment on a certain individual

2. Statement of Claim that Plaintiff is Entitled to Relief: short and plain

o Law + Allegations of Fact
Must be short, simple, and concise: Rule (8)(d)(1)
o How much is needed? (Conley and Twombly)

3. Demand for Relief

o Examples:
Bitch Better Have Ma Money
money and damages
Injunction
force someone to stop something they are doing with court
order
Property
Demand defendant return it to plaintiff

What can you Infer from the Complaint? Rule 11(b)

NOT being used for frivolous reason/ improper purposes
o Harassment

o Causing Delay
o Increasing costs of litigation
Claim/legal contentions are warranted: either by
o Existing law
The D violated Ps rights under existing law; OR
o Non-existing law
The claims are warranted under what should be the law
Facts have either
o Evidentiary support
P can back up what he is saying with evidence
OR
o Will have evidentiary support
P needs reasonable opportunity for further investigation or
discovery
P doesnt currently have evidentiary support but should find it
after granted opportunity to conduct discovery
This is often the case

Cases
Sierocinski v. EI Du Pont de Nemours & Co. (1939)
o Plaintiff is NOT required to plead specific evidence
o Consistency Standard: claim must be conceivable or possible that allegations
are consistent with violation of rights
Bell Atlantic Corp. v. Twombly (2007)
o changes standard of Conley
2. Fact Pleading

Complaint Continued
Rule 8(a)(2) short and plain statement showing that the pleader is entitled to relief
Law + Allegation of Fact
Must the pleader include evidence?
o Sierocinski NO
How much needed?
o First Conley
o Then changes to Twombly

How much evidence is needed in the complaint?

Old, Low Standard
o Conley
(Old/Low) Standard to meet the standard of Rule 8(a)(2)
need only require factual allegations that support a possible or
conceivable entitlement to relief
If you do so, you can beat a motion to dismiss for failure to
state a claim
How can Defendant win on a motion to dismiss?
Demonstrating that there are no set of facts that would entitle
the plaintiff to relief
Does NOT require specific facts to support general allegations
Does NOT require the claimant to set out in detail the facts upon
which they state a claim
Purpose of having low standard to beat motion to dismiss:
b/c plaintiffs were not always in position to have best evidence
to support a claim
Purpose of Pleading to put the defendant on notice of the claim

So as long as there is sufficient or fair notice of alleged

wrongdoing, we will let the parties continue to discovery
Purpose of Discovery court can count on discovery to clarify the
issues
Low standard changed by Twombly

New Standard
Twombly
When there are two possible outcomes from a single set of facts it
is NOT automatically plausible that either has occurred
Moxie Crime Fighter Example
just because something is possible does NOT mean it is
plausible
Complaint requires more than just labels and conclusions or a mere
recitation of the elements
Must be enough to raise a right to relief above the
speculative level
Reasonable Expectation discovery will reveal relevant evidence
Purpose of pleading
1. screen the claim
2. avoid unnecessary expenses
3. weed out frivolous claims
Purpose of discovery
1. avoiding abuse
limiting costs
Cost Benefit Analysis to meet standard of Rule 8(a)(2)
Cd< P(L)
cost of discovery < (probability plaintiff wins) X
(damages)

Summary

Rule 8(a)(2) standards Function (of pleading)

Conley
Notice of claim
possible/conceivable
1957

Discovery Purpose
Clarify those facts
supporting claim
during discovery

Twombly
plausible
2007

Avoid abuse

Pleading is an
opportunity for court
to screen the claim
Judge can draw on
judicial experience
and common sense

Discovery is very
costly
Standard is meant to
avoid expenses and
weed out frivolous
lawsuits

Explanation
If function of pleading
is just notice, then a
conceivable, possible
claim would make it
to discovery (maybe
just 1%)
Must have a probable
cause determination
to see if there is
enough to proceed to
discover; this must be
put forward in the
short and plain
statement required
by R.8(a)(2)

Next Step
FRCP Rule 12(b) Motion to Dismiss
Used when discovery is pointless
Must be filed before the answer is filed
However, defendant can include 12(b) Motion Defenses (MD) in his answer
o 1. Subject Matter Jurisdiction
o 2. Personal Jurisdiction
o 3. Improper Venue
o 4. Insufficient Process
o 5. Insufficient Service
o 6. Failure to state a claim
o 7. Failure to join a party
But remember: Rule 12(h)
o (1) MD 2-5 are waived if they are not included in defendants answer OR
motion to dismiss
o (2) MD 6 + 7 are NOT waived yet
can be in any pleading, any motion or judgment on a pleading, or
at trial
o (3) MD 1 can be at any time, even after trial, even after judgment
Court MUST always dismiss a claim/suit if at any time the court
determines there is a lack of subject matter jurisdiction
Cases
o Coleman v. Frierson
Default Judgment is equivalent of trial on the merits
CANNOT raise MD 6 following courts entry of a judgment
10

The only defense they could have made MD 1 = Lack of SMJ

Pleading Continued
INVESTIGATION

T0:
wrongs

PLEADING

T1: files
Complaint

may file
Motion to
Dismiss

Fed. R. Civ. P. 3,
8(a), 10, 11(b)

Fed. R. Civ.
P. 8, 12(b)

or may
file Motion
for
Judgment on
Pleadings
Fed. R. Civ.
P. 12(c)

must answer complaint

Fed. R. Civ. P. 8, 12

or may bring
counterclaim/crossclaim

Remember: Pleading stage begins

complaint

with a

Fed. R. Civ. P. 13

Motion to Dismiss (MTD): Rule

12(b)
MUST be filed after the complaint but before the answer
Within 21 days of the complaint (unless exception applies) Rule 12(a)
Something to keep in mind: Rule 15(a)
o Even if the complaint is dismissed, court will typically allow for an
amendment to get past the MTD stage

11

Answer: Rule 8 and 12

Must serve and answer: within 21 days after being served with summons and
complaint
What does an answer do?
o Complaint contains allegations
o Rule 8(b)(2) Answer responds to the substance of the allegations
Options:
1. admit
2. deny; OR
3. lack sufficient knowledge, so deny
Rule 8(b)(6) Failure to respond = admitting allegations in
complaint are true
3. Affirmative Defenses, Counterclaims, and Amendments
Answer: Rule 8 and 12
Rule 8(c)(1): Affirmative Defenses (AD)
o MUST be included in your answer.
What AD basically says: even if facts are true, there is a reason why I
dont have to pay you
Examples
Illegality I breached the contract, but contract was to sell
you drugs
Contributory Negligence I did cause your injury, but injury
was partially your fault
Statute of Limitations All of this did happen, but you are too
late
o Answer MUST include AD if you do not use them you lose them

R. 8(c)(2) Affirmative Defenses (AD) v. R. 12(b) Motion Defenses (MD)

12

o Purpose
AD: even if this is all true, I am not liable because (reason X)
MD: this action must be dismissed all together b/c (any of the MDs 17)
o Both can be included in your answer; MD can also be included in MTD
o Waived if you dont include in your answer
AD: ALL are waived if not included
MD: 12(b):(2) Personal Jurisdiction; (3) Improper Venue; (4)
Insufficient Process; (5) Insufficient Service waived if not included
Counterclaim/Cross claim: Rule 13
an opposing claim against opposing party (most likely the original )
Done at the same time as filing of the answer (or other responsive pleading)
Compulsory Counterclaim: Rule 13(a)(1)
o (A) Arises out of the transaction or occurrence that is the subject matter of
the opposing partys claim
o (B) Does NOT require adding another party
o EXCEPTION if the claim on the action has already been filed
If compulsory, MUST include answer or you lose it
o Why?
simple convenience of the court, reduce the cost for everyone
Permissive Counterclaim: Rule 13(b)
o anything that is not compulsory
o MAY state it as a counterclaim
o Do NOT lose it if you dont use it
Notes to remember
o Court MUST have SMJ AND PJ

13

o Rule 42(b) court may order separate trial for convenience, prejudice,
expediting/economizing separate issues, etc.
Case
Williams v. Robinson (1940)
o A compulsory counterclaim is required at the time of filing the answer only
when it arises out of the same transaction/ occurrence that was the subject
matter of the action
o Test for whether a counterclaim is compulsory
Whether the same evidence can be used to support/ refute both claims
Does the subject matter of opposing claims require an examination
into the same basic facts underlying them?
EXPLAIN BOTH SIDES ON THE EXAM
4. Discovery
Intro to Discovery
First point at which real costs are induced
If we are at this point, we know:
o Court has screened the claim
o Court has determined that cost of discovery is less than the probability the
plaintiff will win multiplied by the damages
Cd < P(L)
o Complaint meets standards required by Rules 8 and 12
Discovery requires cooperation from all parties involved
o the less parties cooperate with each other and court, the higher the costs will
be for everyone involved
This is where parties create and gather evidence for all complaints
Scope of Discovery Rule 26(b)(1)

14

If admissible MUST be 1. non privileged and 2. relevant to a claim or defense

If NOT admissible MUST be 1. non-privileged, 2. relevant to a claim or defense
and 3. reasonably calculated to lead to the discovery of admissible evidence
Something to think about New proportionality test
Limitations
o Unreasonably cumulative or duplicative, may be outside scope of
discovery
o Can be obtained from other source that is more convenient, less
burdensome, or less expensive (they want extensive emails but you can just
depose instead)
o Party seeking discovery has had amply opportunity to obtain info
previously in discovery
when new discovery request is just to delay trial or impost costs on
other party

Motion to Compel Rule 37

best way to understand this motion is to look at R. 37. You make a discovery request
(R. 34) and the other side refuses to respond to request. after in good faith you say he
has to, then you can go to court and make motion asking for an order saying other
side has to respond/ respond in a more adequate way.
o this is Sibbach v. Wilson
request for medical examination (R 35) and the person refused then
plaintiff requested for a motion to compel

5. Limits on Discovery
Work Product Doctrine Rule 26(b)(3)
Cannot discover products made in anticipation of litigation or trial
Protects mental impressions, conclusions, opinions, or legal theories concerning legal
strategy of the attorneys
*HOWEVER, May be able to discover if you prove very difficult to prove in
court, it is a high bar but not an absolute bar
o substantial need; or
o undue hardship in obtaining info
Cases

15

o Hickman v. Taylor
Privileges
Attorney Client Privilege
o Elements
1. A confidential communication which can either be verbal or
nonverbal
2. Between the attorney and the client and NO ONE else
3. For the purpose of seeking legal advice
ALWAYS protected never discoverable or admissible
only way it would be is if client says it is ok
client holds this privilege
Policy to encourage client to tell attorney everything
Different than Work-Product
Work-Product covers wider range of communication but at the
same time is not absolute like Attorney-Client Privilege
Spousal Communications Privilege
o Elements
1. confidential communication (verbal or non verbal)
2. Between a married couple
have to be married at time where info is being sought
o ALWAYS protected never discoverable/admissible
EXCEPTION when spouses are in an action against one another
(like a divorce), their communications are no longer protected
6. Judgment Without Trial

16

Rule 12(c) Motion for Judgment on the Pleadings (this is a final judgment)
Pleadings must be closed but before discovery starts
Early enough not to delay trial
What can court consider?
o ONLY the pleadings
Rule 56 Motion for Summary Judgment (MSJ) (if discovery has begun)
MSJ is granted if movant shows no genuine issue as to any material fact
After discovery, but before trial
o American Airlines v. Ulen
o Scott v. Harris
o Celotex Corp. v. Catrett
What can the court consider?
o Affidavit Sworn written statement
b/c it is sworn, it can be treated as evidence
o Depositions b/c they are sworn, can be treated as evidence
o Pleadings
can use, but be careful because since they are not sworn, the do not
hold as much weight
cannot say b/c they denied something it can be used as
evidence
have to wait until it is sworn, which happens in
affidavits and depositions
Additional Notes
Plaintiff always prove elements of the claim
Defendant always prove elements of affirmative defense
Burden of Persuasion what you need to prove at trial to win
o party moving for SJ has the burden of persuasion
Burden of Production what you need to get to trial
o showing there is a genuine issue of fact

Moving (Requesting Motion) for Summary Judgment (SJ)

17

Action

Moving Party
(who is asking for
summary
judgment)

moved for SJ on
a claim

moved for SJ on
a claim

moves for SJ on
an affirmative
defense

moves for SJ on
an affirmative
defense

Who has the

Burden of
Persuasion
(whoever is
asking
something from
the court)
( always has
burden of
persuasion on a
claim)
( always has
burden of
persuasion on a
claim)

( always has
burden of
production on an
affirmative
defense)

How can moving party win?

Party that does NOT have burden of persuasion
has 2 ways of winning: (1) disprove, OR (2) show
that burdened party has not met its burden of
persuasion
1. By showing that plaintiff did not reach the
burden of production
2. By introducing evidence that would show s
claim is not plausible
1. By showing that the evidence is so conclusive
that there is no genuine issue of material fact (a
reasonable jury could NOT find in favor of )
NO SECOND WAY FOR PLAINTIFF TO WIN,
b/c does NOT have a burden for CLAIMS. it
is MORE difficult for to win SJ b/c doesnt
have to do/ produce anything

1. By showing that the evidence is so conclusive in

s favor b/c did not reach a plausible
entitlement for his claim (b/c s evidence shows
no genuine issue of material fact, nothing for jury
to decide)
NO SECOND WAY FOR DEFENDANT TO
WIN, b/c has NO burden to produce for an
affirmative defense (opposite of moving for SJ
on a claim) harder for to move for SJ on an
affirmative defense
1. By showing that the defense did not meet its
( always has
burden of production
burden of
production on an 2. By introducing enough evidence to DISPROVE
s affirmative defense
affirmative
defense)

18

Judgment After Trial

Rule 50 Motion for Directed Verdict
Once the plaintiff has submitted everything,
Also called Judgment as a Matter of Law
1. asks whether a reasonable jury would find in favor of the non-moving
party
2. Motion must specify the judgment sought and the law and facts pertaining
to that
must be filed before jury deliberates
when court does not want jury fucking up
Motions to Dismiss, for SJ, for Directed Verdict
Who
What

Motion to Dismiss Rule 12(b)(6)

Defendant

Look at allegations, all

from complaint

The court can dismiss your case without

opportunity to get evidence that is
uniquely in the possession of defendant.
Twombly makes it harder for plaintiff to
win. Can amend complaint but cannot add
new evidence without chance for discovery

Motion for Summary Judgment (SJ)

Rule 56

Motion for Directed Verdict Rule 50

When

Standard

After complaint is
filed and before
answer

No Plausibility
No reasonable
expectation of finding
material fact in
discovery
Costs of discovery are
not worth the benefit

Plaintiff and
Defendant

Plaintiff and
Defendant

Everything except live

testimony, includes
interrogatories,
depositions,
complaint, answer

Everything that does

include live testimony

After discovery
and before trial.
Earliest point
when discovery for
P is over

After Trial
Earliest point
after close of case
of party that has
burden of
persuasion
Latest Point If
you file before the
verdict

19

Screen for cases that

shouldnt go to
discovery
No genuine (carrying
the weight of
plausibility) dispute as
to any material (fact
that tends to prove or
disprove element of
claim or defense) fact
Screen for cases that
shouldnt go to trial
No reasonable jury
would have legally
sufficient evidentiary
basis
Screen for cases that
dont need to go to
trial, dont need the
jury to fuck it up

Differences
Motion to Dismiss Is it plausible based on the allegations of the claim that the
plaintiff is entitled to relief?
Motion for Summary Judgment is there a genuine issue of material fact that would
entitle the non-moving party to a judgment?
Directed Verdict Could a rational/reasonable jury find in favor of the non-moving
party on this particular fact?
1. All of these are ways for the court to determine whether or not it is worth it to move
forward
2. All are ways in which the court remains efficient
3. If you win, the case is over

7. Trial
Law confides the conduct of a trial to the trial judges discretion
o is NOT governed by specific rules
main elements of the traditional course of trial are much the same whether the trial
is by judge AND jury or by the judge alone
Order and Method of Proof Rules: 50(a), 52(c)
Burden of Proof
o Who must prove what?
Plaintiffs claim
plaintiff will lose if the jury is not persuaded of the truth of
the allegations of the complaint (the claim) that the defendant
has denied in the answer
Defendant
defendants affirmative defenses will fail if the jury is not
persuaded of their truth
o What happens if the burdened party does not prove enough evidence to
persuade the jury?
burdened party will lose
o What happens if no evidence is presented on a disputed issue?
Normally, plaintiff has initial burden of production must bring
forward evidence in support of disputed issues in his case or suffer
defeat
Opening Statements
o Purpose
to explain case in such a way that the jury will be better able to
follow the testimony
o Take place before witness are called to the stand
20

o Order of opening statements

Plaintiff
plaintiffs attorney tells jury what the issues in the action
are and what he proposes to prove
Defendant
normally defendants attorney follows immediately with a
comparable opening statement
BUT, attorney can sometimes choose to postpone opening
statements until the beginning of the defendants case
Plaintiffs Case
o plaintiffs first witness is called to the stand, sworn to tell the truth, and then
subject to
o Direct Examination
questioned first by plaintiffs attorney
o Cross Examination
questioned by defendants attorney
o Redirect Examination
plaintiffs attorney has a chance to explain or otherwise qualify any
damaging or accusing testimony brought out by the opponent during
cross-examination.
o Recross Examination
defendants attorney is responds to matters that may have arisen during
the redirect examination of the witness
o re-examinations continue until both partys attorneys are satisfied
o other witnesses for plaintiff are called and subjected to the same process of
examination until the plaintiffs attorney is satisfied that he has done all
that he feasibly can to establish the elements of the claim
o plaintiffs attorney is not supposed to anticipate defenses and rebut them, but
courts sometimes allow him to for practicality purposes
o Upon completion of the testimony in support of his case in chief, plaintiffs
attorney rests
Motion at close of plaintiffs case
o After plaintiff rests, if he has failed to present any evidence on an issue
upon which he has burden of production, or if his evidence on it is so
insufficient that it could not persuade any reasonable trier of fact
Defendant may move for judgment as a matter of law
Trial by jury
Rule 50(a)
o motion formerly called a motion for directed
verdict
o must be made at any time after plaintiff rests but
before the case is submitted to jury
21

o MUST specify judgment sought and the law

and facts that entitle movant to judgment
o If judge grants motion,
judge will withdraw case from jury,
and
enter judgment for the defendant
Nonjury trial
Rule 52(c)
o motion for a judgment on partial findings
o MUST be supported by findings of fact and
conclusions of law as required by Rule 52(a)
o court may decline to render any judgment until
the close of evidence
o standard that defendant must meet is much less
stringent (strict)
o Defendant risks nothing by requesting motion for judgment after plaintiff
rests his case
If denied, defendant continues as if no motion was made
o If plaintiff has presented sufficient evidence to permit a reasonable finding in
his favor, judge will not withdraw case from the jury
Defendants case
o Even if motion does not succeed, defendant can still cut short the scenario by
resting without offering proof
Why would defendant do this?
condition of plaintiffs evidence may be such that reasonable
triers could differ
finding for plaintiff may depend on piece of evidence
that a reasonable jury might either believe or not
believe
By resting, defendant stakes chances upon argument to the
jury that they should not accept plaintiffs story as true
Defendant would do so where he has little evidence to offer
OR a lot of confidence, OR where defendants only evidence
would entail great expense OR risk backfiring
o Normally, defendant will proceed to offer his own evidence
may design evidence to disprove one or more of the disputed issues
on which plaintiff has burden to prove; OR
use evidence to break new ground
design evidence to prove matters of affirmative defenses
upon which defendant has burden of proof
o process of direct examination of defendants attorney and cross examination
of plaintiffs attorney is the same as in plaintiffs case
o upon completion, defendants attorney rests
22

Motion at the close of defendants case

o Once defendant rests, plaintiff may move for judgment as a matter of law
under Rule 50(a)/Rule 52(c), without waiving his right to put in rebuttal
evidence if judge denies motion
process for motions is the same as stated above
Rebuttal and rejoinder
o if neither party moves/judge denies motion
o Plaintiff may offer rebuttal evidence
o Proper rebuttal limited to evidence that meets new facts put in by the
defendant
rebuttal can nevertheless go beyond evidence designed to meet an
affirmative defense
if defendant presents supposed eyewitness to car accident
whose testimony contradicts plaintiffs witness testimony
Proper rebuttal putting witness on to testify that
defendants witness was elsewhere at the time of the
accident
o Improper rebuttal
mere reiteration of plaintiffs own evidence for purpose of giving it
added emphasis so as to overcome the effect of contradictory
testimony
reserving material that was properly part of the case in chief
Defendant may have supposed that the case in chief was the
entire case to meet
o Trial judge has wide discretion in these matters
likely to permit testimony that plaintiff in rebuttal that plaintiff
inadvertently omitted earlier
even after both parties have rested at the end of all evidence, court has
some discretion in interest of justice to permit the introduction of
evidence to repair the damage of an inadvertent omission in a
partys proof
o examination of rebuttal witness is the same as already described
o after presenting all rebuttal evidence, plaintiff rests
o defendant may again move for judgment as matter of law
same process
o After rebuttal, defendant may present evidence in rejoinder
same general principles apply

Motions at the Close of all Evidence jury trial

when all evidence is in, either party may move for judgment as a matter of law
Rule 50(a)
o motion MUST state specific grounds
o granting motion results in the withdrawal of the case from the jury
23

Submission to Jury and Return of Verdict Rules 49, 51, 52

if Rule 50(a) is not made/not granted after the close of all evidence, the disputed
issues of fact will be submitted to jury for decision
o jury will announce its decision in the form of a verdict
Closing arguments
o before judge gives case to jury, both attorneys will make closing arguments
to the jury that the proof is with their respective side
normally, party who could make the first opening statement can now
make both initial and final closing arguments
Instructions
o judge will then typically instruct/charge jury as to the law
Rule 51 also leaves timing to judges discretion
judge customarily states to jury
issues in dispute and contentions of the parties with
respect to them; and
who has burden of persuasion on which issues; and
what degree of persuasion jury must reach before
deciding that a party successfully carried the burden;
and
analyze/summarize evidence
Federal judge
o may also choose to express his views on the
facts
provided he makes clear to the jury that
matters of fact are for its
determination and that his views are
not binding
o Lawyers role
Rule 51(a)
gives parties right to file written requests for special
instructions
also have other opportunities to urge judge what instructions should
be
Verdict
o Rule 49 different kinds of verdicts
General Verdict
Jury finds for defendant
Jury finds for plaintiff and assess damages in the sum of $x
Rule 49(b)

24

General verdict accompanied by written requests upon one or

more issues of fact necessary to decision
Rule 49(a)
special verdict in form of a special written finding upon each
issue of fact
when jury has to return a general verdict, regardless if accompanied by
written questions
judge must determine and then instruct jury on rules of substantive
law that govern the case
jury cannot rationally find a verdict without applying rules of
substantive law to the facts as they find them
jury does not and should not know the rules except as
judge states them
will be more particularized than the legal rubrics that the
pleadings invoked or implied
if jury is to return special verdict
judge may reduce scope of instructions on the applicable rules of
substantive law b/c judge will himself apply those rules to the jurys
special findings on the issues of fact
regardless of the type of verdict, jury will retire to deliberate in private
if jury is unable to reach a verdict
judge will discharge the jury
case may have to be retried
if jury reach decision
foreperson of jury will appropriately complete and sign a given
form of verdict
verdict will be returned in open court with the jury present and will
then be recorded
jury will then be discharged
Nonjury Case
court must find the facts specially and state conclusions of law
Rule 52(a)(1); Rule 52(c)

o
o

Motions After Verdict Rules 50, 59

After judgment has been entered, the verdict-loser has 2 options

25

o Renewed motion for judgment as matter of law

Rule 50(b)
permits party whose R. 50(a) motion was denied or not granted
to move to have the verdict/judgment set aside and to have
judgment entered in his favor despite adverse verdict
MUST file no later than 28 days after entry of judgment on
the verdict
moving party MUST have previously moved for a R.50(a)
motion
movant is reasserting same grounds
standard for granting renewed motion for judgment as
matter of law
in theory the same as standard for granting judgment as
matter of law
may happen if after first motion, which was well
founded, judge is uncertain and wants time to reflect
o if jury makes wrong judgment judge can fix by
granting renewed motion
o Motion for new trial
Rule 59(a)(1)
asks that verdict/judgment be set aside and case be retried
MUST file no later than 28 days after entry of judgment on
the verdict
can be granted on 3 grounds
1. Judge is convinced of jury error w/ testimony or
evidence
2. Irregularity during trial
o R. 59(d)
court, on its own, may order a new trial
for any reason that would justify
granting one on a partys motion
o R. 61
jury does not follow instructions
Judge committed error
on instructing jury
ruling on admissibility of
evidence

26

misbehavior by a participant
3. newly discovered evidence

Joinder of Motions
o verdict-loser may, and usually does, make motion for new trial [R.59(a)(1)]
together with any R. 50(b) motion
o If judge denies both, verdict stands
o If judge denies R.50(b) but grants R.59(a)(1)
judge sets aside verdict and any judgment decided thereon
case will stand again for trial
o If judge grants R.50(b)
judge sets aside verdict and any judgment thereon
contrary judgment will be entered
judge will also rule on the new trial motion
either conditionally granting or conditionally denying
R. 50(c)(1)
o if the judgment entered is reversed on appeal,
there will be a new trial or not, ordinarily in
accordance with the trial judges decision on the
new trial motion, which was conditional on such
reversal

C. Remedies and Settlement

1. Remedies
Kinds of Relief Rules 54, 57
Rule 54(c)
every final judgment should grant the relief to which the party is entitled, even if the
party has not demanded such relief in the pleadings except that a judgment by
default must not be different in kind from or exceed in amount what the party
requested in the demand for relief

27

2. Settlement
P = Probability of winning
L = Liability = How much the plaintiff is seeking
C = Costs for
C = Costs for
S = settlement
When should settle: Settlement > (P)(L)C
When should settle: Settlement < (P)(L)+C
Expected Costs of = (P)(L)C
Expected Costs of = (P)(L)+C
Expected Costs of < Settlement < Expected costs of

Plaintiffs expected net recovery

P(L) C
o Probability you will win (the potential remedy, liability) costs of litigation
o Probability is ALWAYS in terms of plaintiff winning

28

Defendants expected net recovery

[P(L)+C]
o Negative [Probability you will win(the potential remedy) Costs of
Litigation]
o It is ALL a loss
Even if defendant wins at trial, they are going to lose money because
they are paying for their court costs
When should the plaintiff settle?
S > P(L) C
When settlement is great than the expected net recovery from trial
When should defendant settle?
S > [P(L)+C] OR
S < P(L) C
When settlement is greater than the expected net recovery from trial
OR
When settlement is less than s expected net recovery from trial
o depends on whether will accept settlement
Settle so long as costs for plaintiff and defendant are BOTH positive numbers
0 < C + C
Settlement purpose is to encourage people to stay out of court, for to gain the most
amount of money, and for to lose the least amount of money
Each party has a different view on their probability of winning, because of
asymmetric information.
o One role of discovery reduce asymmetric information

29

Are we losing anything with settlement?

o Precedent
o There are usually non-disclosure agreements that must sign before pays
does not want publicity

D. Subject Matter Jurisdiction (SMJ) federal courts

People want to be in federal courts because they think the judges are more competent etc.
General
Federal Courts are courts of limited jurisdiction
o they cannot hear any type of issues
o Limited to cases where
parties are diverse diversity citizenship
when there is a federal question
NOTE: State Civil Courts are courts of general jurisdiction
o They can hear cases on any type of issue
o Policy there is always a court for a plaintiff to bring a claim
You must always evaluate the claim itself as well as the other parties to determine
if federal court is proper
Parties CANNOT consent to subject matter jurisdiction
o Why? Because, according to the Constitution, Federal Courts do not have
power to declare law

US Constitution Art. III 2

30

Judicial power extends to all cases arising under this Constitution, US federal law,
and treaties made under their authority
Includes Special Parties: US, individual states, ambassadors, public ministers
Includes citizens of different states

1. Federal Question Jurisdiction

evaluate Federal Q first when determining if court has SMJ
o if claim involves federal law, citizenship DOES NOT matter
o just look what plaintiff is suing for
will tell you if it constitutes federal question jurisdiction
28 USC 1331: Federal Question Jurisdiction
The district courts have original jurisdiction over all civil actions arising under the
constitution, laws, or treaties of the United States
Cases
Louisville v. Nashville RR v. Mottley (1908)
Bell v. Hood (1946)
2. Diversity of Citizenship Jurisdiction
Individual/natural people are only citizens of ONE place
Businesses/corporations always have TWO places of citizenship

31

28 USC 1332: Diversity of Citizenship Jurisdiction

(a) District courts have original jurisdiction of all civil actions where the amount in
controversy exceeds $75,000 ($75,000.01) and (diversity) is between
1. Citizens of different states
2. Citizen of a state v. Citizens/subjects of a foreign state
3. Citizens of different states v. citizens/subjects of a foreign state as
additional parties (dont deal with this a lot)
4. Foreign state as Plaintiff against citizens of a state (P could be a trick)
(c) State of incorporation and Principal Place of Business (PPB) (nerve center)
o Unincorporated everywhere a member of business is a citizen
every state where its individual members are citizens
How to determine citizenship
Citizenship is measured at the exact moment the complaint is filed
o You can move up until the minute before it is filed
Natural Person Baker v. Keck
o Domicile; mind and behind at the time complaint is filed
MIND you must intend to stay there indefinitely
BEHIND you must actually have physical presence there
Persons have only one domicile at any given time
Corporation/Business citizen of state of incorporation and state of nerve
center (can be the same state) Hertz
o Where officers control, direct, and coordinate corporations activities
Complete Diversity
o All plaintiffs and all defendants must by completely diverse
o There cannot be any matches of state of citizenship

32

Cases
Baker v. Keck
Hertz v. Friend
4. Supplemental Jurisdiction
kind/form of SMJ
hook: where court normally would have SMJ
General
Federal District courts have limited jurisdiction
Can only hear cases based on
o Federal Question claim itself arises under federal law
o Diversity of Citizenship complete diversity between parties, over $75K
($75,000.01)
What does this mean?
o Court must have SMJ over all individual claims, individual counterclaims,
and individual crossclaims
o BUT if no Federal Question jurisdiction/Diversity jurisdiction, we can
look at Supplemental Jurisdiction
28 USC 1367 Supplemental Jurisdiction
(a) For Federal Q and Diversity
o Where district courts have original jurisdiction (have ability to hear these
cases)
o District courts then have Supplemental Jurisdiction over all other claims
related to and forming part of the same case/controversy of the original
claim
(b) For Diversity and Plaintiff ONLY Kroger;
o District courts SHALL NOT have jurisdiction over claims by plaintiffs
against persons made parties under FRCP rules OR over claims by persons
proposed to be joined as plaintiffs or seeking to intervene as plaintiffs,
even if there is a counter claim
Rule 24 3rd party defendant

33

Rule 19 Required Joinder

Rule 20 Permissive Joinder
Rule 24 Intervening Parties
o NOTE this applies to third parties brought in by both plaintiff and
defendant
Court may allow third party for crossclaim under FRCP 14(b) BUT
court would NOT have supplemental jurisdiction over this new claim
Must interpret the statute as it is written
o NOTE if there is a Federal Question, P can do all of this as long as it
forms part of the same case/controversy
(c) Discretion can use this for counterargument
o District Courts may decline to exercise supplemental jurisdiction over a
claim (We are not going to let the tail wag the dog)
Claims raising a novel or complex issue of state law
If the new claim substantially predominates over the claim where the
district court has original jurisdiction
District court has dismissed all of the claims under original
jurisdiction (where the hook has been dismissed)
(d) Federal Savings Statute you have 30 days to re-bring claims that were part of
original claim that was dismissed

Notes
D cannot implead to destroy diversity because P is master of the complaint but also
because an impleader of a 3rd party does NOT affect complete diversity over the
original claim
If D impleads a non-diverse party, however, the plaintiff may NOT assert claims
against the 3rd party this is to prevent what happened in Kroger
If P does have a claim against a 3rd party, P may assert the claim as long as it arises
from the same transaction or occurrence
o This does NOT require the P to do so
o If 3rd party is non-diverse, P can only bring claim in state court
o Unlike counterclaims/crossclaims for the original D, plaintiff does not lose
claims against 3rd party if he does not use them
Cases

United Mine Workers v. Gibbs (1966)

34

Kroger (Indiana) v. Omaha (Nebraska) (1978)

35

Ultimate Test for SMJ ******

1. Evaluate each claim/ crossclaim/ counterclaim individually
2. Is there a Federal Question? 28 USC 1331
Does the claim itself arise under federal law? Mottley
If YES there is SMJ; If NO move to 3.
3. Is there Diversity of Citizenship? 28 USC 1332
Is total over $75K ($75,000.01)?
o If YES move on to citizenship
o If NO No SMJ
Determine citizenship of all P and all D
o Natural Person physical presence with an intent to remain there indefinitely
Baker v. Keck
o Corporation 2 different citizenships
state of incorporation
Principle Place of Business (Nerve Center) Where high ranking
officers control, direct, and coordinate corporations activities; Hertz
Is there Complete Diversity? Strawberry v. Curtiss
o No P can share citizenship with any D
If YES there is SMJ
If NO move on to 4.
4. Is there Supplemental Jurisdiction? 28 USC 1367
Is there a hook? will depend on 2 and 3
o Is there another claim where the court has jurisdiction that this claim can
attach itself to?
o If NO No SMJ
Does the supplemental claim form part of the same case or controversy as the
hook?

36

o Do they derive from a common nucleus of operative fact? Kroger

o Does the claim activate the same rights? Revere
o If NO No SMJ
Is the hook founded solely on Diversity of Citizenship?
o If YES
Is the supplemental claim made by a P against a non-diverse party
made under FRCP 14, 19, 20, or 24?
If YES No SMJ 28 USC 1367(b); Kroger
o If NO
SMJ as long as the supplemental claim forms part of the same
case or controversy as the federal claim (compulsory)
5. REMEMBER Court has discretion (Use as However, the counterargument of
analysis)
Even if there is supplemental jurisdiction, court can decline if
o Novel/complex issue of state law
o supplemental claim predominates over hook
o District Court dismisses hook
o Exceptional circumstances
4. Removal
28 USC 1441: Removal Supplemental Jurisdiction
(a) Generally any civil action brought in a state court, of which the district courts
have original jurisdiction, can be moved by the defendant to the district court of
the US
(b) Civil actions can be removed based on diversity of citizenship
(2) A civil action otherwise removable solely on the basis of the jurisdiction
under 1332(a) may not be removed if any of the parties in interest that
properly joined and served as defendant is a citizen of the State in which such
action is brought.
(c) Joinder of federal law claims and state law claims
28 USC 1446: Removal Procedure

37

Must be filed within 30 days after receipt of the complaint by the defendant
All D must be properly joined or consent
Diversity
o may NOT be removed after more than 1 year of commencement of action
UNLESS bad faith

28 USC 1447: Remand

Anything but Subject Matter must be made within 30 days after filing of
notice of removal
Subject Matter can be made at anytime before final judgment
Court has discretion to ? if diversity is destroyed by joinder
Rules of Removal
Only Up: you can only go from state court to federal court
Straight Up: you can only remove to the federal district embracing the state where
the case was filed
Defendants Only: plaintiffs cannot remove, as they have the choice in the forum in
which they bring the suit
Choice of Forum Why remove?
1. Expected bias against a litigant
2. Logistical and practical concerns
3. Perceived disparity in quality of judges/juries
4. Different procedures

38

E. Personal Jurisdiction (PJ) If no PJ, there can be no SMJ. the court might have SMJ
but they cannot bring the party in
US Constitution Amendment V and XIV 1 Due Process
Due Process no state shall deprive any person of life, liberty, or property, without
due process of the law; nor deny to any person within its jurisdiction the equal
protections of laws

US Constitution Article IV, 1 Good Faith and Full Credit Clause

Good faith and Full Credit clause states must have respect to public acts, records
and judicial proceedings of every other state

FRCP Rule 4(k)(1)(A)

Allows a federal court to exercise jurisdiction if the local state court could
Federal courts acts as court in forum state
Establishes PJ over a defendant who is subject to the jurisdiction of a court of general
jurisdiction (state court) in the state where the district court is located

FRCP Rule 4(k)(1)(C)

Allows federal court to assert jurisdiction when a federal statute allows them too

28 USC 1738: States Full Faith and Credit

39

States must give the same effect to a valid judgment that it has in the state that
rendered the judgment
Also applies to all state and federal courts

Fraud and Force

A state will not exercise judicial jurisdiction that has been obtained by fraud or
unlawful force, over a defendant and his property
If one state chooses to exercise judicial jurisdiction in such circumstances, new state
must abide
Long Arm Statutes
Is it ok under the state long-arm statute?
Is it ok under due process clause?
Assume that in this state the courts have as much jurisdiction as the constitution
allows unless otherwise noted

In Personam v. In Rem/ Quasi In Rem

In Personam
What?
Service

In Rem or Quasi in Rem (substantially)

Over Person

Over things; property; rights against the world

Presence
1. Presence
Personal service in forum state (temporary time
in state is enough);
Appearance in forum state (NOT special
appearance)
2. Consent (Acts in the State)
Forum selection clause
Drive on rodas?
3. Domicile
No Presence
4. Minimum Contacts (specific or general
jurisdiction) that do not offend traditional notions of fair play
and substantial justice
Domicile if you are subject to the benefits of
being a resident, you are also subject to
burdens/responsibilities, with mind and behind, you are
subject to jurisdictions of their courts (reciprocity, free
loading)
Can be appearance (not special appearance but

40

Property in the forum state + substitute service

Service by publication is sufficient

Substitute service through publication, nailing

the summons and complaint on the door of court

this depends on state rules); consent; acts

Catch All: International Shoe
Minimum Contacts such that it does not offend
tnfpsj

Reasonin
g

Grace v. MacArthur: an airplane flyover can be enough

(argue he didnt purposefully avail)

If you own property, you will have someone

check on it (watch keeper)

Fraud or force has to be the but for cause of presence in the

forum

Lesser notice is sufficient for property rights

because the owner should be responsible for
property at all times

Domicile Milliken v. Meyer if you are domiciled, you are

subject to their laws regardless

Reciprocity (social club theory) you are being protected

by their laws, you have to submit to their laws as well

Specific jurisdiction
1. Act that gives rise to litigation or claim
2. Continuous and systematic activities
General Jurisdiction
1. Unrelated Acts (domicile)
2. Substantial + continuous corporate operations

41

Cost/Benefit does not require too much

process if you want things

We have land, we want to do things to it as a

society, we cant let process wag the dog. Due
process is not complete process

TEST FOR PJ
1. Minimum Contacts (MC)
(Consent) TRADITIONAL
o Forum Selection Clause (not like Burger King)
(Property + Substitute Service) TRADITIONAL
Presence TRADITIONAL
o Tag jurisdiction (presence in the forum for unrelated reason) + personal
service Burnham
o Appearance
Domicile TRADITIONAL
o Milliken v. Meyer
Specific Jurisdiction act in the forum
o Purposeful availment mere foreseeability is not enough
o Unilateral conduct breaks chain; Volkswagon
General Jurisdiction not in the forum
o substantial and continuous activity; corporate analog of domicile Perkins
Burger King
Somewhere in between
These categories overlap
If some MC, then tnfpsj
2. Traditional notions of fair play and substantial justice (TNFPSJ)
Asahi to determine if PJ is reasonable based on tnfpsj
o P interest in forum court having PJ
o D interest in forum court having PJ
o Forum interest in its court having PJ protecting its citizens
o Interstate Judicial systems interest in efficient resolution of disputes
o state and federal shared interest in furthering social policy

SPECIFIC V. GENERAL JURISDICTION

SPECIFIC

GENERAL

- Intl Shoe, Burger King

- Perkins, Milliken v. Meyer

42

claims based on a single act that involve the

contact
- act that you did within the state

- claim that doesnt have to be an action in state if ties

to state are so much that you can be sued there

- contacts with forum are regular/ substantial

- direct and insular claim arises out of contact

with forum
- even when in-state activity is limited
- defendant is only subject to jurisdiction for claims
arising out of those minimum contacts
- purposeful availment
- unilateral activity of plaintiff is never sufficient for
purposeful availment Volkswagen

43

- defendant can be sued in the state for any claim,

even one completely unrelated to its in-state activities
- defendants activities in forum are so substantial
and continuous that she would expect to be subject
to suit there on any claim and would suffer no
inconvenience from defending there
- individuals: domicile (mind and behind/ at
home) (Milliken)
- corporations: primary place of business (PPB),
incorporation (Perkins Continuous and
systematic)

Notes From E&E

Chapter 1 Personal Jurisdiction: The Enigma of Minimum Contacts
When D has no contacts with forum state, state can only exercise PJ over D if D consents to
it
Enjoying benefits of a state carries with it the burden of related litigation
Specific PJ (SPJ) D can only be sued in the state for claims arising from/ related to activities
(contact) within state
single act of D that establishes contact with forum state
continuous but limited acts of D that establishes contact with forum state
General PJ (GPJ) D can be sued in the state for any claim, even one completely
unrelated to its in-state activities (contacts)
Ds in-state contacts are very substantial
D corporation is subject to General PJ in state of incorporation and state of its
primary place of business (PPB)
o where corporation is at home
unclear whether corporation can be subject to GPJ in other states in addition to states
of incorporation and PPB
analysis should focus on extent of Ds in-state activity

28 USC 1332(c)(1) defines corporations state citizenship for diversity purposes to

determine SMJ
Minimum Contacts (MC)
Test
o applies to both individual and corporate defendants
enjoying benefits of a state carries burden of related litigation
o limitations for PJ found in long arm statutes are distinct from constitutional
limit imposed by MC test
o a D may have sufficient contacts with a state to support MC there even though
she did not act within the state
If D commits act outside of state that he knows will cause harmful
effects w/i state, sufficient MC for claims arising from that act to
establish PJ
Analysis focuses on time when D committed act, not time of the lawsuit
applies whether or not D is still acting in the state at the time the suit is actually filed

44

Purposeful Availment
D must purposefully avail itself of the privilege of conducting activities within the forum
state, thus invoking benefits and protections of its laws
D must make a deliberate choice to relate to the state in some meaningful way before
she can be made to bear burden of defending there
unilateral contacts of plaintiffs or others are not enough
When Ds goods reach forum state through Stream of Commerce
1. an out-of-state component manufacturer sells components to manufacturer of a
finished product outside state/country, then manufacturer incorporates component
into a finished product and distributes finished product into the forum state (Asahi)
o party at beginning of stream of commerce (component manufacturer) did not
import product into forum state; it sold to others who did
2. manufacturer sells finished product to a wholesaler outside the state, wholesaler
resells to a retailer in forum state, retailer resells to consumer
o party at beginning of stream of commerce (manufacturer of finished product)
did not import product into forum state itself; it sold to others that did
A foreign manufacturer/component maker that sells its products to wholesalers outside
the US, without cultivating the US market in any way, will likely not be subject to jurisdiction,
even if its product is imported into the US and injures a consumer here
A foreign manufacturer/component maker that sells its products to wholesalers outside
the US, and develops a relationship with US distributor, sells goods to that distributor, and
encourages US sales, it will likely be subject to jurisdiction for sales arising from those sales in
the state where it directs its goods where the US distributor is located
A foreign manufacturer that engages in conduct intended to promote its goods in a state
will be subject to SPJ for claims that arise out of sales, both direct and indirect, in that state

Traditional Notions of Fair Play and Substantial Justice (TNFPSJ)

Where D has purposefully directed activities to the forum state, jurisdiction is
presumptively reasonable
D will have to make compelling case that other considerations make the exercise of
jurisdiction unreasonable (Burger King)
45

MC must not offend TNFPSJ

if they do, no PJ (Asahi)
tnfpsj are not sufficient to establish PJ if MC are lacking
Determining whether tnfpsj are offended only takes place when D purposefully
avails himself of the opportunity to conduct activities within the forum state has MC
with forum state
Chapter 2: Statutory Limits on PJ
Due process clause of 14th Amend. imposes fundamental limitations on the power of state
courts to exercise PJ over Ds in civil suits
states can only assert jurisdiction over Ds who have established significant
relationship to the forum state, such as domicile, in-state presence, continuous and
substantial business within state, consent to suit in state, or MC with state that give
rise to claim in suit
clause does not confer any jurisdiction to state courts, it only defines outer bounds of
permissible jurisdictional power
If D not subject to PJ of forum state, court cannot adjudicate claim
It is up to state legislature to grant power to its courts to exercise PJ through jurisdiction
statutes
Every PJ issue involves two-step analysis
court must ask whether there is a state statute authorizing it to exercise PJ under
circumstances of case
if yes, court must ask whether it is constitutional under due process clause to exercise
PJ over D
some state legislatures give state courts blanket authority to exercise PJ to the limits of
the due process clause
some do not.
states instead pass long arm statutes authorizing their courts to exercise PJ over
defendants based on specific types of contact with the forum state
o passed in reaction to Intl Shoe
once Shoe established that certain types of contacts were sufficient bases for
exercising PJ over non-residents, states adopted long arm statutes to authorize
their courts to hear cases arising out of such contacts
o types of contacts
46

committing tortious acts within forum state

transacting business in the state
owning property in the state

long arm statutes give courts some leeway to reject PJ in cases having little connection to
the state w/o making constitutional pronouncements
Long arm statutes primary purpose is to reach out of state and call nonresident Ds
back into the state to defend lawsuits
legislatures tend to grant statutory jurisdiction liberally since it is usually invoked by
Ps who live in the state and prefer to sue at home
however, reach of a states long arm statute may sometimes exceed its constitutional
grasp
o where these types of statutes may be constitutional as applied to some cases
but not all, the courts do not invalidate the statute entirely; they simply refuse
to apply it to cases that fall outside the bounds of due process
All long arm statutes that base PJ on specific enumerated acts require that the claim
sued upon rise out of the act itself
this limitation is rooted in Intl Shoe analysis
o holds that limited in-state contacts only support PJ over claims that arise from
those contacts SPJ
PJ Based on Acts Committed Outside the State Burger King
A party can commit acts that have an impact in a state w/o ever actually entering the state
in some circumstances, such contacts suffice under due process clause to support
exercise of PJ over out-of-state actor
o a number of provisions in long arm statutes authorize PJ in such cases
Enumerated act long arm statutes are intended to reach to the limits of due process
means that the specific categories of jurisdiction conveyed by the long arm statute
are to be interpreted as liberally as the due process clause will allow
the going-to-the-limits-of-due-process language commands liberal interpretation of
specific provisions of the long arm statute; it does not fill in any interstices those
provisions fail to cover
Chapter 3: Seeking the Home Field Advantage Challenges to PJ
Defendants may be subject to jurisdiction of a state court under due process analysis on basis of
domicile in a state
in-state service of process
47

consent to jurisdiction
continuous or substantial in-state contacts
Minimum Contacts (MC) w/ forum state that give rise to a particular cause of action

Challenging Jurisdiction in Rendering State (Direct Attack)/Challenging

Jurisdiction in Enforcing Court (Collateral Attack)
Options for defendants looking to challenge jurisdiction of rendering state court
appear in the original action at the beginning of the suit and object to courts exercise
of jurisdiction over you (direct attack)
o procedure varies from state to state
in some states, defendant who objects to jurisdiction files a special
appearance
defendant is allowed to appear before the court at the
beginning of the action for the sole purpose of challenging
courts power to exercise jurisdiction
defendant can litigate jurisdictional question without
submitting to jurisdiction by the very act of appearing before
the court
may NOT raise any other claim
raising objections or arguments that court can construe
as a defense on the merits allows court to conclude
defendant has waived her jurisdictional objection
in other states, R. 12(b)(2), as under the special appearance
defendant may appear before answering to the merits of
complaint and object to PJ.
defendant may also raise other objections at the same time
without raising the objection to PJ
R. 12(b)(6)
o defendant may move to dismiss for lack of PJ
and, at the same time, for failure to make a
claim upon which relief can be granted
under both, objection to PJ must be raised immediately or it is lost
defendant who answers on the merits and later decides to
challenge PJ will have waived the objection by failing to raise
it at the outset
if defendant properly raises objection in forum court, under either
approach, court will hold a hearing on the issue
if no basis for PJ, court dismisses suit
if basis for PJ, court proceeds with case
o in most states, if you lose PJ objection you can defend the merits of the suit
without waiving your objection to jurisdictional ruling
48

if you lose, you can appeal claiming trial courts conclusion on PJ

objection was wrong
o in some states, if you lose PJ objection you can take an immediate appeal to
appropriate appellate court in that state
if appellate court conclude trial court was wrong, case is dismissed
some states even require this
this process referred to as interlocutory review

ignore the original suit entirely (collateral attack)

o if forum court lacks PJ over defendant, any judgment it enters will be
unenforceable anyway
o Procedurally, defendant does have a right not to appear if court lacks PJ
BUT, this poses a serious risk
if defendant fails to appear, court will probably enter a
default judgment
if PJ is valid, defendant loses case without having opportunity
to properly defend it
o usual method of enforcing money judgments against out of state defendants is
for plaintiff to take her judgment against defendant to a state where
defendant lives/has property and seek a court order from courts of that
state to authorize the sheriff to sell defendants assets to satisfy the
judgment
plaintiff must first obtain recognition of original judgment
domesticating judgment
traditional procedure = filing new action on judgment in
enforcing state
seeking a judgment on the judgment
alternative registration procedure
plaintiff files a certified copy of the original judgment
in defedants states court, eliminating the need to file
a new suit there
US Constitution Art. 4 1 Full Faith and Credit Clause
requires courts of each state to honor judgments of other states
by entering judgments upon them and allowing out-of-state
creditors to use court process to collect them
important exception
enforcing court may always inquire as to whether
rendering state had jurisdiction in original action
and refuse enforcement if it did not
o known as collateral attack
defendant challenges original courts jurisdiction in enforcement
action rather than directly in original suit
49

more convenient for defendant b/c they dont have to travel to other
state
also allows him to litigate jurisdictional issue in home state
possible home state court will be more sympathetic to
defendant
strategy poses great risk to defendants
Full Faith and Credit Clause (US Const. Art. 4 1) allows
defendant to question rendering courts jurisdiction but not
reopen the merits of original, underlying action
idea of this is that defendant has right to stay away from
court lacking jurisdiction but not from court that has
jurisdiction
o if you dont show up, you lose your right to
defend claim
important exception only in case of collateral attack
defendant may not challenge PJ in enforcement
action if he has already done so in original action
o rules of collateral estoppel provide that a party
who has fully litigated an issue in one action
may not re-litigate it in another

50

Defendants Response to the

Original Suit
D appears, defends on merits,
and loses

Action in the Rendering

Court
Enters judgment for P

D makes special appearance

or 12(b)(2) motion; court
agrees that it lacks jurisdiction

In most cases, dismisses

action for lack of jurisdiction;
in some, may order proper
service to cure jurisdictional
defect
Enters judgment for P

D makes special appearance

of 12(b)(2) motion; court
upholds jurisdiction; D
defaults
D loses on objection to
jurisdiction; defends action on
its merits; loses; appeals

D defaults, contests
jurisdiction in enforcing court

D defaults, later denies

liability on merits in the
enforcing court

In most states, appellate court

may review decision that
jurisdiction was proper; a few
may treat defense on merits as
a waiver of the jurisdictional
objection
Enters default judgment for P,
unless lack of jurisdiction is
clear from complaint

Enters default judgment for P,

unless lack of jurisdiction is
clear from complaint

51

Action in the Enforcing

Court
Must enforce rendering courts
judgment (US Const. Art. 4
1), even if D challenges the
rendering courts jurisdiction;
D has waived his objection by
defending suit on its merits
If original suit is dismissed,
there will be no judgment to
enforce. However, P may file
a new suit in a court that has
jurisdiction over D
Must enforce judgment
because D already litigated the
rendering courts jurisdiction
and lost
If jurisdiction upheld on
appeal, or objection waived by
defense on merits, must
enforce rendering courts
judgment
Enforcing court may decide
whether rendering court had
jurisdiction; if it finds it did
not, it refuses enforcement. If
it finds that it did, it must
enforce the judgment
process of Full Faith and
Credit Clause (US Const. Art
4 1)
Enforces the judgment; Full
Faith and Credit Clause
precludes reexamination of
merits, which are settled by
default