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Dispute Pre-Filing Filing Pleading & Complaint Response Discovery

Summary Judgment Motions Trial (5% or less) Post Trial Appeal

Pleading: Documents (complaint & answer)
Discovery: parties provide each other with evidence
Summary judgment: Youve got a smoking gun
Post-trial motions: dictated by the rules
Federal Courts: District courts Circuit Courts Supreme Courts
Where do the rules come from?
o Congress has power to create lower federal courts and power to regulate the procedure of those courts
They delegated this power to the Sup. Court
Rules are made by an advisory committee
o FRCP = 1938; SC = 1985
Goals of the FRCP Rules:
o FRCP 1: ensure a just, speedy, and inexpensive determination of every action
o FRCP 2: There is one form of action; civil action
This system is dependant on being adversarial.
o Other countries let judges decide what claims, evidence available, ask questions
o Cons: Can be expensive, assumes both parties have equal access to skilled lawyers, and have resources
Overview of Jurisdictional Concepts:
o If you file in the wrong place, it can get thrown out
o 1331 & 1332
Art III = governs judiciary
Sets up types of cases that the fed ct can hear
motion: a request to the ct to take some kind of action (not a pleading; it is a request for an order)
either moved to dismiss or a motion to dismiss motion is a noun, not a verb!!
order: the action of a ct (takes an action by issuing an order)
allegations: statements made in numbered Ps of the complaint
sua sponte: ct dismisses the case on its own
evidence: what is used to prove facts
to file: to deliver to the court
to serve: got it to the person
to serve process: to submit/give/send summons and complaint
process: the complaint & summons
response: An argument or brief presented in answer to that of a movant, appellant, or petitioner.
Hearing: on a motion, unlike a trial which is on factual disputes
Personal & Subject Matter Jurisdiction Compared

Two Court systems (main difference is SMJ)

1. Federal
a. Limited jurisdiction: only have SMJ if constitution and Congress allow it
b. PJ not limited by 14th amendment due process clause (only applies to states, not fed govt)
c. 5th amendment imposes its own limits on the power of fed courts to exercise PJ
2. State
a. General jurisdiction: have SMJ unless Congress explicitly makes the claim exclusive to federal courts
b. States have a VERY broad jurisdiction. Can hear just about anything (minus like patent law)
3. Concurrent jurisdiction: when state and federal court simultaneously have SMJ over a lawsuit
3 Requirements for a court to have power/authority over a lawsuit
1. Subject Matter Jurisdiction
a. Jurisdiction over the nature of the case and type of relief sought
i. Federal Question Jurisdiction (28 U.S.C. 1331)
ii. Diversity Jurisdiction (28 U.S.C. 1332(a))
1. Supplemental Jurisdiction
2. Personal Jurisdiction (Personam Jurisdiction)
a. Power of a court to enter judgment against a specific
b. Constitutional requirement Art. III, Section 2
c. Territorial geographical limitation
3. Venue
a. Created for convenience; required by statute, not the constitution (28 U.S.C. 1391, 1404, 1406)

How do the parties initially state and respond to legal claims?

Pleading a document in which the plaintiff sets forth its claims and position on the factual and legal issues in dispute
Purposes: 1. give notice
2. provide a mechanism for ready testing of legal sufficiency of a claim
Procedural Systems:
1. Rules pleading (notice pleading) (FRCP)
a. Certain states and federal courts require that the complaint contain a short & plain statement of the claim
2. Code Pleading (fact pleading)
a. Certain states require that the complaint contain relevant facts that give rise to a claim
b. Emphasis is on the pleading facts: statement of facts sufficient to put the defendant on notice of what cause of
action (CoA) is being pleaded
c. E.g., S.C.: SCRCP 8(a): Claims for relief: a pleadingshall containa short & plain statement of the facts
showing the pleader is entitled to relief
i. Need more factual details
ii. Need more technical detail should plead enough detail to show the court that these are the ultimate
facts rather than mere conclusions of law
3. Common Law
a. writ system
b. If the s disputed issue did not fit in her writ she had chosen at the outset of the case the court would dismiss
Rule 7(a) Only these pleadings are allowed: 3 basic pleadings (complaint, answer, and reply to answer)
(1) complaint
(2) answer to a complaint
(3) answer to a counterclaim designated as a counterclaim
(4) answer to a crossclaim
(5) third-party complaint
(6) answer to a third-party complaint
(7) a reply to an answer, if the court orders one

Complaint the initial pleading that starts a civil action and states the basis for the court's jurisdiction, the basis for the plaintiff's
claim, and the demand for relief
Every complaint must contain three things:
1. A short and plain statement of the grounds for the courts jurisdiction
a. Personal Jurisdiction
b. Subject Matter jurisdiction
2. A short and plain statement of the claim showing that the pleader is entitled to relief (needs legal & factual sufficiency)
3. A demand for relief sought, which may include relief in the alternative or different types of relief
Notice pleading (Rule pleading) pleading is sufficient if it put the Defendant on notice of what she had been sued for; Twiqbal
imposed an additional plausibility requirement for factual allegations
-Conley v. Gibson pleadings must give Defendant fair notice of what the Plaintiffs claim is and the grounds upon which it rests
-In re Plywood Antitrust Litigation a complaint still must contain either direct or inferential allegations respecting all the material
elements necessary to sustain a recovery under some viable legal theory

Code pleading/ Fact pleading requirement of statements of facts or ultimate facts (high detail, rather than claims)
constituting the cause of action, in ordinary and concise language, without repetition, and in such a manner as to enable a person of
common understanding to know what is intended (formalism of language in the pleading)
***In rules pleading, statement of claim, not statement of fact
pleading the evidence plaintiff who alleges facts too specifically (claims are dismissed for stating legal conclusions.)
pleading conclusions of law plaintiff who alleges facts too generally (usu. dont get thrown out for being more specific.)
too much detail vs too little detail
Defendant tested legal sufficiency by filing a general demurrer to the complaint (does not exist in Federal Court 12(b)(6) motion).
Problem: calls for highly detailed pleading too difficult to fully research all the facts needed to bring a complaint before one can
initiate the action, and thus meritorious Plaintiffs can not bring their complaints in time before the statute of limitations expires
In FRCP 8(a)(2), drafters lowered threshold of detail specificity by eliminating the word facts, but the party must still
allege some factual information that will lend to the elements of the claim to the extent that it is true. (Rule 8(a)(2) below)

S.C. Standards
SCRCP 8 A pleading shall contain:
(1) short and plain statement of the grounds including facts and statutes upon which the courts jurisdiction depends
(2) short and plain statement of the FACTS showing that the pleader is entitled to relief
(3) prayer or demand for judgment for the relief of which he deems himself entitled; relief in the alternative or of several different types may be

Stroud v. Riddle (Supreme Court of S.C.)

Residents of separate counties suing those counties because properties of similar value within the school district are
being taxed unequally, because of the different methods of assessing property in the respective counties.
Holding: The court held that this allegation is an ultimate fact. The trial judge erred in holding conclusion of law.
Certain code pleading states require a complaint to contain a statement of ultimate facts for purposes of factual sufficiency. The pleading should
include these types of facts
Dictum: If the complaint had simply alleged that the plaintiffs were being unequally taxed in violation of the due process and equal protection
clauses of the State and Federal Constitutions, it would have been demurrable. Instead, the plaintiffs have said, in effect, in this school district
properties of equal value are being assessed and taxed differently.
South Carolinas fact pleading standard requires more specificity than the federal notice pleading standard
Also heightened specificity under FRCP (b)&(g) claiming fraud, mistake, or special damages (see below)
Ultimate facts facts that the evidence upon trial will prove, and not the evidence that will be required to prove those facts
(alleging factually specific information as to each of the elements of the claim)
Conclusions of law describe legal status, condition, or legal offense
(assertions describing elements of a claim with no real factual detail at all)
Ex. He negligently injured me. or I was taxed unequally in violation of my equal protection rights.

FRCP 8 Breakdown:
Rule 8(a) A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the courts jurisdiction, unless the court already has
jurisdiction and the claims needs no new jurisdictional support AND
Plaintiff must allege that the case is properly within the courts subject matter jurisdiction. (Does not
require allegations of personal jurisdiction or venue)
(2) a short and plain statement of the claim showing that the pleader is entitled to relief AND
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief
Plaintiff tells the court what recovery is sought, i.e., prayer or ad damnum clause (monetary recovery).
No dollar amount required. Plaintiff can demand damages in amount to be shown at trial.
Equitable relief (injunction, specific performance, declaratory judgment)
Can plead for relief in the alternative e.g., damages and specific performance

Rule 8(a)(2) a short and plain statement of the claim showing that the pleader is entitled to relief
What is the level of detail required under Rule 8(a)(2)?
Dioguardi v. Durning (2d Cir. case, affirmed by Supreme Court in Conley v. Gibson)
Complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the
cannot prove a set of facts in support of his claim which would entitle him to relief.
There is enough to state a claim, even if pleading is not very clear, as long as substantive law would provide the
Plaintiff relief when statements are taken as true. Here, Dioguardis pleading was horribly written, but he would be
entitled to relief if all his claims were proven true. ***FACTUAL SUFFICIENCY***
Holding: The FRCP does not require a statement of fact that constitutes a COA, instead, the complaint needs to
contain a statement of the claim showing the pleader is entitle to relief
-Look to the face of the complaint
Rule 8(a)(3) a demand for relief sought which may include relief in the alternative or different types of relief
(1) Often called a prayer for relief
(2) May seek equitable relief, such as
a. Specific performance
b. Injunction (declaratory judgment)
c. Money damages
Damages as pleaded in a lump sum
Legal Sufficiency determining whether the Plaintiff has alleged a claim recognized by the law
Defendant makes a Rule 12(b)(6) motion for failure to state a claim.
The court only looks to the face of the complaint (it does not consider evidence that may support the allegations):
1. assumes (for the purposes of this motion) that the Plaintiffs factual allegations are true.
2. Asks: If these allegations are true, would the law provide a remedy?
3. If the fails to state a claim, the court will grant the Rule 12(b)(6) motion (usually with leave to amend to give the
another chance)
Plaintiff may fail to state a claim, even if the factual allegations are fairly specific, because the law simply does not allow any relief
based on those facts (Garcia, 2nd issue: cannot get relief for statements protected under absolute privilege on labor board hearings).

Factual Sufficiency Plaintiff must allege facts in complaint to some level of specificity. Court will read factual allegations in the
light most favorable to the Plaintiff (isnt a hard threshold to pass).
Standards of Appropriate Specificity:
1. code pleading/ fact pleading
2. FRCP notice pleading (put on notice)
3. Twiqbal (Twombly/Iqbal) plausibility pleading
Garcia v. Hilton Hotels (Fed. Dist. Ct. Puerto Rico)
o Garcia fired: violently discharged. Hilton makes Rule 12(b)(6) motion b/c Garcia did not allege that
slanderous statements were published (element of defamation). Court says it is clear that Plaintiff stated
violently discharged to allege publication, and it reasonably may be conceived that Plaintiff, at trial, could
show evidence to prove publication. factual sufficiency
o Hilton articulates slanderous statements again in hearing at the Labor Dept. Argues that they have absolute
privilege from suit b/c conclusive defense to an action based on utterance. Absolute privilege was given them
via statute.
Conditional Privilege: immunizes a from suit only when privilege is properly exercised in
performance of a legal or moral duty (ex: attorney)
Absolute Privilege: immunizes the from suit no matter how wrongful the action might be, or if done
with improper motives (proceeding authorized by law) (Hilton hotel said it under oath) (ex: priest)
(Absolute privilege for statements made in legislative or judicial proceedings.) Garcia would not be
entitled to relief even if he could prove his allegations were true b/c not actionable according to the
law. legal sufficiency
o Holding: A motion to dismiss (FRCP 12(b)(6)) requires that a P failed to state a claim up on which relief can be
granted, not that the failed to state a CoA. When construing a 12(b)(6), all inferences are drawn in light
favorable to the . Dismissal should not be ordered unless there is no basis for relief.
Vaguness will not defeat a complaint. The complaint alleges that was falsely and slanderously
accused of procuring prostitution. Although the complaint failed to alledge publication and specific
instances of when these statements were made, the complaint should not be dismissed on this basis.
Instead, the shold have to provide more definite statement
Bell Atlantic Corp. v. Twombly
o Plaintiff were consumers who sued a group of regional phone and Internet service providers, claiming that by
agreeing not to compete with each other, the service providers kept fees artificially high. Plaintiffs only allege
conscious parallelism (that defendants were aware of each others actions and engaged in such actions
themselves), which is only actionable if it is a result of an agreement between the defendants. Court holds that
allegations do not eliminate the possibility of independent action. Conscious parallelism OR an agreement
Both are equally possible. Policy: to protect corporations from difficult, expensive discovery phase; no way to
defend w/o some idea of how and why the defendants conspired
o Holding: Plausibility Standard must allege facts that, if true, would plausibily suggest a conspiratorial
agreement. To alledge facts that are merel consistent with a conspiracy is not sufficient
o Takeaway: Plausibility standard must include enough facts in complaint to make it plausible, not merely
possible or conceivable, that they will be able to prove their crimes. **no one really knows what this means**
Ashcroft v. Iqbal
o Muslim citizen in Pakistan suing AG and Director of FBI alleged that after Sept 11 they arrested and detained him under
restrictive conditions. Extended Twombly plausibility
o Issue: are conclusory allegations that high-ranking government officers knew of or condoned allegedly
unconstitutional acts by subordinate officials sufficient to state a claim for unlawful discrimination
o Reduces Twombly to two working principles:
1. ignoring conclusions of law identify the parts of complaint that are merely legal conclusion
Rule 8 does not unlock the doors of discovery for a Plaintiff armed with nothing more than conclusions.
2. applying the plausibility standard to the remaining factual allegations taken as true
conceivable (capable of being grasped mentally) v. plausible (reasonable or probable)
Holding: Iqbal failed to plead sufficient facts to state a claim for unlawful discrimination. Iqbal needed to plead
sufficient facts to show that the s implemented their policies for the purpose of discrimination his complaint did
not do this.
judge must use common sense and experience to determine if the claim is plausible
Takeaway from Twonby & Iqbal:
1. These cases altered deferral court pleading standards, requiring s to include far more detailed facts in a complain if
they want to survive a Rule 12(b)(6) motion to dismiss
2. Plausibility standard

Failure to state a claim

If Plaintiff fails to state a claim Court will grant the Rule 12(b)(6) motion, usually with leave to amend. Courts are liberal in
granting leave to amend, unless the judge concludes that the Plaintiff simply cannot state a claim will enter final judgment.
Plaintiff can still appeal and attempt to convince appellate court to establish a claim based on Plaintiffs facts.
Court will: 1. identify factual allegations in complaint & cross out legal conclusions
2. ask: are they specific enough to give defendant notice of complaint so that Defendant can adequately defend himself?
3. ask: assuming the allegations are true, would the law provide a legal remedy plausible enough to give the relief?

Other Rules for Pleadings:

Rule 8(d) Pleading to be Concise & Direct; Alternative statements; inconsistency
(1) In General. Each allegation must be simple, concise, and direct. No technical form is required.
(2) Alternative Statements of a Claim or Defense. A party may set out two or more statements of a claim or defense
alternatively or hypothetically, either in a single count or defense or in separates ones. If a party makes alternative
statements, the pleading is sufficient if any one of them is sufficient. Ex: if you know one of two ppl did it, but not
didnt know who (wouldnt be fair if they had to choose one so list all)
(3) Inconsistent Claims or Defenses. A party may state as many separate claims or defense as it has, regardless of
consistency. (ex: Can state a claim for battery (intentional tort) or negligence, even though inconsistent, because Plaintiff does
not yet know which one is true and ultimately could not seek relief for both)

Rule 10 Form of Pleadings

(a) Caption; Names of Parties. Every pleading must have a caption with the courts name, a title, a file number, and a
Rule 7(a)(pleadings allowed) designation. The title of the complaint must name all the parties; the title of other
pleadings, after naming the first party on each side, may refer generally to other parties.
Docket number can be left blank on complaint because the case will not be assigned a docket number
until the complaint is filed with the clerk.
(b) Paragraphs; Separate Statements. A party must state its claims or defenses in numbered paragraphs, each limited
as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier
pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence and each
defense other than a denialmust be stated in a separate count or defense.
Rule limits each paragraph to a single set of circumstances not a single fact, and calls for a
commonsense breakdown of allegations as far as practicable. Allegations in a paragraph should
form a logical grouping, relate to each other. Reducing specificity to an atomic level would make the
complaint unduly tedious. (Glannon)
(c) Adoption by Reference; Exhibits. A statement in a pleading may be adopted by reference elsewhere in the same
pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is part of the
pleading for all purposes.
Parties should exercise care in incorporating documents. This creates an admission of the
authenticity of the document, if not their accuracy, which may weaken an argument.

Rule 9 (Pleading Special Matters)

(b) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances
constituting fraud or mistake. Malice, intent, knowledge, and other states of mind may be alleged generally
Heightened Pleading Requirements claimant must allege in more detail than is required under Rule 8(a)(2).
e.g., what happened, what did they say, was it published
Why heightened requirement? easy to make a fraud claim against someone that will damage their reputation, even if suit is frivolous
Higher Std also applies to in his answer pleading one of these as an affirmative defense
(g) Special Damages. If an item of special damage is claimed, it must be specifically stated.
e.g. consequential damages, other damages Defendant might not contemplate (not apparent to Defendant)
Include the amount and possibly how you calculated that amount
Gives warning to of any unexpected/unusual damages

If it doesnt say it has to be stated with particularity, the default is FRCP 8(a)(2). 8(a)(2)= generally
Leatherman v. Tarrant County
It is inappropriate for the court to expand heightened specificity to claims other than those listed in Rule 9.
Holding: Fed cts may not heighten the requirements of the pleadings beyond what is specified in the FRCP 9.
Filing and Serving a Complaint
to file to submit to the court
to serve to submit/give/send to other parties
to serve process to submit/give/send summons and complaint

Rule 4 Summons (how to serve and file the original complaint higher standard to give notice to , make sure he knows)
4(c) Service (not in syllabus)
(1) Summons must be served with a copy of the complaint. Requires service on Defendant, not attorney
(2) service cannot be done by the party (can be done by any person who is a least 18 years old and not a party)
(3) not by regular mail, unless state law allows it certified mail.
Rule 5 Serving & Filing Pleadings & other Papers
(governs subsequent filings now everyone is aware of what is going on)
requires service of process on attorney (to keep parties apart)
allows service by regular mail
possibility of electronic service w/ consent
includes with leave to amend complaints (amended)
5(d)(1): any paper after complaint is required to be served together with a certificate of service
5(a) when required 5(b) how made 5(c) filing

Responding to Complaints
Pre-Answer Motions
How and when should a Defendant respond via motion?

Motion a document in which a party requests that the court make a certain order (court can grant or deny a motion)
Order a document embodying a courts decision

Filing a pre-answer motion under Rule 12(b) is an alternative to answering the complaint. A Defendant who make a motion to
dismiss under 12(b) need not answer the complaint until after the motion is decided.
Policy: to shortcut the litigation process
Two options under 12(b):
1. Raise PRE-ANSWER motions
has valid defense to court proceeding with the case (& save $)
If you prevail on the motion, youll never have to answer!
2. Raise defenses in answer


Must be raised in pre-answer motion or (if no pre-answer motion) in the answer. If fail to raise in initial responsedefense is waived forever


Defendant choosing to make a pre-answer motion may not later make a second one asserting other pre-answer motions. can put in answer or
another motion after pleading or at trial (Rule 12(h)(2)) (unless it is a waivable defense)
Making a 12(b) defense once bars it from having another


Four of the 12(b) defenses will be waived if not raised by the in the FIRST response to a complaint (whether by motion or
1. Personal jurisdiction
2. Venue
3. Insufficient process
4. Insufficient service of process
You can always raise SMJ defense
Rule 12
(a) Time to Serve a Responsive Pleading
(1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:
(A) A Defendant must serve an answer:
(i) within 21 days after being served with the summons and complaint
(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it
was sent to the Defendant outside any judicial district of the U.S.
(B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the
counterclaim or crossclaim.
(C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different
(4) Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows:
(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within
14 days after notice of the courts action; or
(B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days
after the more definite statement is served.
(b) How to Present Defenses. Every defense to a claim for relief to any pleading must be asserted in the responsive pleading if one is required. But a
party may assert the following defenses by motion:
(1) lack of subject matter jurisdiction
(2) lack of personal jurisdiction***
(3) improper venue***
(4) insufficient process***
(5) insufficient service of process***
(6) failure to state a claim upon which relief can be granted
(7) failure to join a party under Rule 19
(g) Joining Motions.
(1) Right to Join. A motion under this rule may be joined with any other motion allowed by this rule.
(2) Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3) a party that makes a motion under this rule
must not make another motion under this rule raising a defense or objection that was available to the party but omitted
from its earlier motion.
(h) Waiving and Preserving Certain Defenses.
(1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)-(5) by:
(A) omitting it from a motion in the circumstances described in Rule (g)(2) or
(B) failing to either:
(i) make it by motion under this rule; or
(ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course
(2) When to raise others. Failure to state a claim upon which relief can be granted, join a person required by rule 19, or to state a legal defense to
a claim may be raised
i. In any pleading allowed or ordered under 7(a)
ii. By a motion under rule 12(c), OR
iii. At trial
(3) Lack of SMJ. If the court determines at any time that it lacks SMJ ct must dismiss the case

How and when should a defendant respond via an answer?
a type of pleading that responds to a complaint
v. making a motion tactical difference = must respond to the substantive allegations in the complaint
2* Things you can do in an answer
(1) respond to allegations Rule 7
a. Admit (establish undisputed facts)
b. Deny Rule 8(b)(2-4)
i. General denial (rule 8(b)(3)) one sentence answer that denies every allegation rare must be made in
good faith
ii. Specific denial respond to each separately
iii. Qualified General Denials need not match the complaint for (ex: admits allegations in 5 and denites
each and everyt other allegation of the complaint)
c. Claim they lack sufficient knowledge to admit or deny (Rule 8(b)(5))
i. Can not be used if the has reasonable access to the information or might be a Rule 11 violation
(2) affirmative defenses raise new matter
a. Rule 8(c)(1) parties must state their affirmative s in the answer. These inject new matter into the dispute
(3) Counterclaim**

Rule 8 (in regards to answers to complaints, etc.)

(b) Defenses; Admissions and Denials.
(1) In General. In responding to a pleading, a party must:
(A) state in short and plain terms its defenses to each claim asserted against it; and
(B) admit or deny the allegations asserted against it by an opposing party.
(2) DenialsResponding to the Substance. A denial must fairly respond to the substance of the allegation.
Counsel should resist temptation to plead contrary facts. Argumentative denial could be an admission (code states).
(3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleadingincluding the
jurisdictional groundsmay do so by general denial. A party that does not intend to deny all the allegations must either
specifically deny designated allegations or generally deny all except those specifically admitted (qualified general
(4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part
that is true and deny the rest.
(5) Lacking knowledge or information. A party that lacks knowledge or information sufficient to form a belief about the
truth of an allegation must so state, and the statement has the effect of a denial.
(6) Effect of Failing to Deny. An allegationother than one relating to the amount of damagesis admitted if a responsive
pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered
denied or avoided.
Allegations not denied are deemed admitted (except allegations regarding the amount of damage).
(c) Affirmative Defenses.
(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense
(listed defenses)
(d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency

What happens if a defendant does not respond?

Failure to Respond Default and Default Judgments
Rule 55
(a) Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise, the clerk must enter the partys default.
i. Attorney should prepare an affidavit showing that the complaint (with amount due) was served and not motion or answer was
received from Defendant.
ii. Clerk must enter partys default.
iii. No requirement to serve affidavit on Defendant
(b) Entering a Default Judgment.
(1) By the Clerk. If the plaintiffs claim is for a sum certain or a sum that can be made certain by computation, the clerkon the
plaintiffs request, with an affidavit showing the amount duemust enter judgment for that amount and costs against a defendant who
has been defaulted for not appearing and who is neither a minor nor an incompetent person.
(2) By the Court. In all other cases, the party must apply to the court for default judgment
i. When the amount is not specified must go to the court
1. Court must exercise some judgment (no sum certain) and might need some evidence to decide how much the
damages will be
ii. or if minor or incompetent person (only if represent by a guardian)
iii. or when the Defendant has appeared!!!! even if sum certain
1. Defendant can show excusable neglect
2. BasicallyIf I request a default for not showing up, but then he appears before the default judgment
hearingthen we have to notify at least 7 days b4 hearing
(c) Setting Aside a Default or a Default Judgment. The court may set aside an entry of default for good cause, and it may set aside a default
judgment under Rule 60(b). (Grounds for relief from a final judgment)
i. How do you get a default judgment removed?
1. can have default removed for good cause (ex: layperson does not know what is going on)
2. excusable neglect Rule 60(b)
a. The defaulting Defendant must convince the court that she was not guilty of culpable conduct, that she
has a meritorious defense, and that reopening the case would not prejudice the Plaintiff
b. not attorney preparedness!!!
Example #2 on Quiz 1
Even though there is a sum certain, the Defendant appeared, and thus Plaintiff has to apply to the court to get a default judgment entered.

Rule 54
(c) Demand for Judgment; Relief to be Granted. A default judgment must not differ in kind from, or exceed in amount, what is demanded in
the pleadings.
Every other final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its
Rule 60(b)
(b) Grounds for Relief From a Final Judgment, Order, or Proceeding
See rule book.

Default a ministerial notion on the courts docket sheet that the Defendant has failed to plead or otherwise respond in time
Defendant fails to respond in any way within the appropriate period Rule 12(a)(1)(A)(i) = 21 days
Not automatic must ask the clerk to enter the default on the docket sheet Rule 55(b)(1)

Default Judgment a final order as concluding the litigation on a claim or entire action in favor of one party or the other
1. By the clerk: Rule 55(b)(1)
o Requirements:
Sum certain or sum that can be calculated
must make request to clerk
must produce affidavit showing the amount due
must not have defaulted for not appearing
cannot be a minor or incompetent person
o If these requirements are met, then the clerk MUST enter default judgment
2. By the Court: Rule 55(b)(2)
must apply to the courts
has no absolute right to default judgment
Default judgment may be entered against a minor or incompetent person ONLY IF represented by a guardian,
conservator, or other fiduciary who has appeared
If its a party who has appeared before, you must serve them with notice of the application for default judgement at
least 7 days before the hearing
Setting aside a default judgment (Rule 60(b))
Good cause
o DJ was set aside because the defaulting party has been distraught over husbands death, had been under the
care of a psychiatrist, was not familiar with legal matters, and did not try to manipulate the proceedings

When may parties change their pleadings?

Amendments to Pleadings
Rule 15(a) Amendments before trial
Rule 15(a)(1) Amending as a Matter of Course without having to make a motion and have it granted by the judge
A party may amend its pleading once as a matter of course within:
(a) 21 days after serving it, or
a. for answers Defendant has 21 days after serving the answer to amend it without leave of court. Rule
(b) if the pleading is one to which a responsive pleading is required (i.e., a complaint or an answer w/ counterclaims), 21
days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b) (defenses), (e)
(motion for a more definite statement), or (f) (motion to strike), whichever is earlier. Rule 15(a)(1)(B)
a. If a pleading does require a responsive pleading (complaint or an answer w/ counterclaims),
i. the party may amend within 21 days after the answer or pre-answer motion is served on them

Rule 15(a)(2)Amendments with Leave of Court

In all other cases, a party may amend its pleading only with the opposing partys written consent or the courts leave. The
court should freely give leave when justice so requires.
You must either:
o Obtain the courts permission; or
o Obtain the consent of the adverse party
Professional courtesy says you should allow to amend unless its a detriment to your
clients case
Liberal standard justice so requires
o Depends on how far into litigation the case is fairness
o Depends on the judge
Rule 15(a)(3) Time to Respond
Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to
respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.
Example #5 Quiz 1
Plaintiff files a complaint in federal court on March 1, 2014, and has process properly served the same day. On
March 5, 2014, she serves and files an amended complaint, adding three new claims. By which date must Defendant
respond to the amended complaint?
Time to remaining to respond to original pleading until March 22, 2014 By this date.
14 days after service of amended pleading March 19, 2014
Rule 15(b) Amendments during and after trial
Amendments that are:
(1) Based on an Objection at Trial.
a. Pleadings are the blueprint for the litigation. Sometimes evidence will be introduced for issues not in the pleadings.
i. Objection of Variants made when evidence for new issues varies from what is in the pleadings
b. Court can admit or reject evidence if party can show detriment
i. But not if parties have acted as if issue was there all along
(2) For Issues Tried by Consent.
a. Implied consent is established if there is no objection to new issues raised in trial that was not raised in pleadings.
b. Court will act as though the issue was in the pleading all along

Rule 15(c)(1) - Relation Back of Amendments A Way to Beat the Statute of Limitations
Provides that an amendment to a pleading relates back to the date of the original pleading if it arises from the conduct,
transaction, or occurrence set forth in the original pleading.
o This means that the claim asserted in the amended pleading will be treated as through it had been asserted in the
original pleading.
o Rule provides that once you have sued the Defendant for a certain transaction or occurrence, any amendment to
add new claims based on the same conduct, transaction, or occurrence of the original action will be treated, for
statute of limitations purposes, as though it had been in the original complaint
i. The relation back provision addresses the common situation in which a party adds a claim by amendment
after the limitations period for that claim has passed.
a. statute of limitations requirement that sets a time for when suit can be filed
i. The purpose of the limitations period is to provide notice to the Defendant within a prescribed
period of time. The relation back provision does not destroy this notice b/c Defendant is
already placed on notice that shed been sued for the overall event.
ii. Thus, the statute of limitations will not bar the claim, even though, it was asserted in an
amended pleading filed after the limitations period has run.
15(d) - Supplemental Pleadings
The court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that
happened after the date of the pleading.
a) Ex: oral argumentswhen judge asked us a question and we didnt know, we asked to answer in a supplemental
pleading (didnt state the claim or defense in original pleading)

What provisions assure that parties will be truthful in their allegations?

Rule 11 Provisions to Ensure Truthfulness in Allegations
In reaction to perceived need to curb frivolous litigation Rule 11 Certifications made my attorneys
Rule 11 governs signatures of pleadings, motions, and other court documents.
Rule 11(a) An attorneys signature on a complaint certifies to the court that the attorney believes, after reasonable inquiry, that the
factual allegations in the complaint have evidentiary support or (for specifically identified allegations) will likely have evidentiary
support after a reasonable opportunity for further investigation or discovery. (Rule 11(b)(3)).

Rule 11(b) **ONGOING DUTY** subjective (to the best of the persons knowledge, information, and belief) AND objective
(reasonable inquiry) standard Certifying = promising
after an inquiry reasonable under the circumstances
a. (a)not an improper purpose
2. Example: What if client comes to you the day before statute of limitations runs? allegations
would only be based on an interview with your client Still, this is reasonable under the
circumstances b/c the client just came to you
3. If there is time to do more, a reasonable investigation should involve taking other steps. A
lawyer must go beyond what her client tells her
4. If all evidence supports the opponent, the lawyer is not violating Rule 11 by proceeding.
a. The lawyers evidence is the clients word Client could testify in court
i. Clients story must be facially and reasonably credible so that the lawyer has
reason to believe that this is evidentiary support.
b. Lawyer should council client and tell him that he will not prevail
(1) nonfrivolous argument or warranted by existing law
5. the argument has been re-affirmed many times or was just decided
6. Sometimes there are reasons to sue even when one cannot win. Bad court decisions must be
challenged if they are to be overruled, but the early challenges are certainly hopeless. (Eastway
Construction Corp. v. City of New York)
7. party cant be sanctioned for violating 11(b)(2)
(2) evidentiary support or likely have evidentiary support
1. promises about the facts reasonable investigation
reasonable belief
2. Must have a factual basis beyond mere opinion or speculation to support the pleaded facts, as well
as a colorable argument for the legal positions asserted in the complaint
3. Certainty or admissible evidence is not required

(3) Denials based on evidence or investigation reasonable belief

1. Denials are warranted on evidence or
2. believe find lack of evidence

11(c) Sanctions
(1) a ct may impose sanctions but doesnt necessarily have to
(2) Safe Harbor Provisiona motion for sanctions must be made separately from any other motion and must describe the
specific conduct that allegedly violates Rule 11(b)
a. Must be served under Rule 5, but dont have to file it bc it gives an opportunity to fix pleading so
dont have to bother judge about it. If not fixed, then Im filing it.
b. Gives you a chance to amend or remove claim.
c. Have a right not to be sanctioned w/o having benefit of 21 days safe harbor.
d. Protects party who may have made a mistake, a chance to amend.
e. Keeps a lot of motions from going to the court.
(3) Ct may order attorney, or law firm or party to show cause why conduct described in order has not violated 11(b)
(4) Nature of a Sanction look in rule book
(5) Limitations on Sanctions ct must not impose monetary sanction against
f. A represented party for violating 11(b)(2) or
i. If unrepresented (not included)
g. Own its own, unless it issued the show-cause order under rule 11(c)(3), need ct order
i. Has to be before voluntary dismissal or settlement of claims
(6) Order imposing sanction must describe sanctioned conduct

Rector v Approved Federal Savings Bank

1) Rule 11 required that notices be served w/in 21 days (safe harbor provision)
2) In order to assert the safe harbor provision, Rector needed to file a motion asserting the provision as a
defense, He did not do this, so the possibility of raising the defense is waived.
3) 21 day provision is waivable
a. Rector did not raise issue in time
4) Protects party to fix mistake
5) Protects bickering from going to ct they dont want to hear rule 11 motions
11(d) -- This rule doesnt apply to disclosures and discovery requests, responses, objections, and motions under rules 26 -37

How can parties learn about each others cases before trial?
File complaint Submit 26(f) report 16(b) conference (optional) 16(b) order final pre-trial conference trial
Two meanings of discovery:
1. Phase of litigation
2. Disclosure giving each other information
Discovery is the process by which parties request information from each other, and if necessary, enlist the courts power to compel
each other to respond.
1. preservation of evidence that might otherwise be lost before trial
2. provide mechanisms for narrowing the issues in dispute between the parties
3. permit parties to acquire greater information about their own and the others side
a. strongest evidence of wrongdoing will be in the possession of the alleged wrongdoer Plaintiff would otherwise
not have the necessary proof
-The discovery rules allow parties to learn, well in advance of trial, what evidence the other side has in support of its claims or s
-The discovery rules also permit parties to acquire information for the purpose of strengthening their own cases. The strongest
evidence of wrongdoing will be in the possession of the alleged wrongdoer without access to this information, the plaintiff would
not have the necessary proof to have a successful case.

FRCP 26(f) Early conference

As soon as possible but at least 21 days before a scheduling conference is to be held or scheduling order is due under Rule
Consider claims and defenses start thinking about settlement to save $$
Arrange for automatic disclosure under FRCP 26(a)
Develop proposed plan (used by judges in creating scheduling order)
No formal discovery can commence until after this conference has occurred
Summary requires parties to confer about disclosure and the subsequent course of discovery

Disclosures: The act or process of making known something that was previously unknown; a revelation of facts
Rule 26 Duty to Disclose; General Provisions Governing Discovery
Rule 26(a)(1) Required Initial Disclosures (Automatic Disclosure)
i. Requires each party to disclose certain information without any request by another party:
i. name, address, and telephone number of each individual with discoverable information
ii. a copy of all documents, electronically stored information, and tangible things in
possession, custody, or control
iii. computation of each category of damages and documents used to compute damages
iv. insurance liability insurance produced by the defending party that will satisfy
judgment (purpose to encourage settlement)
ii. Limited to discoverable information and witnesses the party may use to support its claims or defenses (NOT
information the party plans to use against the other party, even if within the scope of discovery under Rule
26(b)(1)) aka: the good stuff
1. Parties can only obtain damaging information through interrogatories, document requests, and
depositions. Now you should find out what information the parties have against you!
iii. 26(a)(1)(C) disclosure at or w/in 14 days of 26(f) and categories of info that must be disclosed.
iv. 26(a)(1)(E) a party must make its initial disclosures based on the info then reasonably available to it, not excused
from making disclosure because it has not fully investigated the case.
v. 26(a)(4) disclosures must be in writing, signed, & served

Example: What if Defendant alleges contributory negligence, but does not provide any evidence before disclosure date?
Can be a violation of Rule 11, but if alleged upon information and belief, may not violate Rule 11.

Rule 16 Scheduling Conferences

Rule 16(a) Scheduling conference/Pre-trial conference
o Optional meeting of the parties and their lawyers with the court to prepare a scheduling order
o Case management & judges involvemet in settlement efforts
Rule 16(b) Scheduling order
o As soon as possible, but within the earlier of 90 days after the has been served or 60 days after the has appeared
o Lays out datelines for discovery and time leading up to the trial
o Usually have amended scheduling order
Rule 16(f) Final Pre-trial Conference
o Final pretrial conference order bluepring for the trial (every factual/legal contention, every witness, every piece of
evidence that will be introduced, etc)
What kind of information are parties entitled to?
The Scope of Discovery Rule 26(b)-(c)
Rule 26(b)(1) any nonprivileged matter that is relevant to any partys claim or defense and proportional to the needs of the case
What does this mean exactly?
1. Relevant
a. Based on the complain and answer (pleasings)
b. Fuzzy Standard as to what revelant means -- Federal Rule of Evidence 401 Relevant evidence means evidence
tending to make the existence of any material fact more probable or less probable than it would be without the
2. Proportional
a. Producing party pays the costs of production 26(b)(2)
b. JUST ADDED by rule drafters
c. the scope of discovery is broader than admissibility need not be admissible at trial
i. Ex: hearsay
3. Nonprivileged
a. Protected information based on a defined relationship privilege will prevail even if information withheld is
crucial (unlike work product)
i. attorney-client effective representation requires full and frank communication between lawyer and client
1. Can respond: The defendant objects to Interrogatory #7 on the ground that the requested
information is protected by the attorney-client privilege.
2. Claiming Privilege or Protecting Trial-Preparation Materials
a. Create a privledge log that expressly states and describes in sufficient detail the
documents, communicatins, or things not produced so as to enable the other parties to
assess the claims
b. Rule 26(b)(5)(A) requires a party to claim the privilege expressly and to describe in
sufficient detail the documents, communications, or things not produced so as to enable
other parties to assess the claim
c. Rule 26(b)(5)(B) inadvertent disclosure of privileged information does not waive the
privilege provided the holder of the privilege took reasonable steps to prevent disclosure
and also took reasonable steps to rectify the error
ii. Other privileges priest-penitent doctor-patient, psychotherapist-patient, husband-wife
b. What is protected? the communication and NOT the underlying facts
i. not protected just because the facts were told to an attorney
ii. Ex: What did you tell your lawyer about how much gas was in the tank at the time of the accident? v. How
much gas was in the tank at the time of the accident?
c. Work Product Protection
i. Rule 26(b)(3) Protection of material prepared in anticipation of litigation
1. does not require that litigation actually commenced
a. Test the prospect of litigation is the driving force behind the preparation of the
i. Work Product Protection is not an absolute protection, information may
still be discoverable if:
1. discoverable under Rule 26(b)(1) AND
2. requesting party shows that it has substantial need and an undue
hardship involving in obtaining the same information elsewhere
2. 26(b)(3)(B) If work product is discoverable, Court must protect against disclosure of opinion
work product (thought process in preparing a case, such as legal theories or litigation strategy)
a. unless work product is a factual issue in the case (ex: issues involving good faith)
b. Court will order a redacted version (blacken out counsels opinions/notes/etc)
3. Courts regularly deny protection to documents prepared in the ordinary course of business
a. Not prepared in anticipation of litigation standard procedure
b. Ex: accident reports and insurance claim assessments
4. Future litigation?
a. Some courts protection continues only if the subsequent litigation is related to the case
for which the material was originally prepared
b. Some courts parties must be the same
5. Hickman (common law) applies to intangible information (opinions, etc) 26(b)(3) only applies
to documents and tangible things.
a. Hickman v. Taylor (first recognition of work product production)
i. Plaintiff attempted to secure the production of written statements and mental
impressions contained in the files and the mind of the attorney without any
showing of necessity or any indication or claim that denial would unduly
prejudice the preparation of the case or cause hardship or injustice. (statements
of witnesses)
ii. Plaintiff admitted that he wanted the statements only to help prepare himself.
1. Seeks written and oral statements of witnesses whose identity is well-
known and available
iii. Court holds Information is privileged.
1. Counsel does not have to reconstruct an interview.

Protective Orders Rule 26(c)

A party who receives a discovery request may seek a protective order form the court limiting discovery, even of information clearly
within the standard of Rule 26(b)(1) (above), to protect a party or person from annoyance, embarrassment, oppression, or undue
burden or expense.
-Ex: if they ask a women how many ppl she picks up at a bar, or how many men she has slept with
1. Motion must include certification that movant has in good faith conferred or attempted to confer with other affected parties in
an effort to resolve the dispute without court action. Ask the party to withdraw the request

Main discovery devices:

Interrogatories (FRCP 33)
Request for Production of Documents (FRCP 34)
Oral Depositions (FRCP 30 (a)-(c))

Interrogatories -- Rule 33
1. Questions propounded by one party to another (rule doesnt cover nonparties), seeking information relevant to the issues in
2. Pros: most frequently used, inexpensive, effective in providing basic background information
3. Cons: (1) interrogatories are frozen = no follow up questions (2) opponent will construe questions differently
4. 33(b)(2) party must serve answer within 30 days after being served w/ interrogatories
5. Are answered under oath (Rule 33(b)(3)) subject to perjury
6. 33(d) Option to produce business records (if a business is on the receiving end, allows responding party to give access to
files/business records rather than writing a response)
a. specifying the records that must be reviewed in sufficient detail to enable the interrogating party to locate and
identify them as readily as the responding party could; AND
b. giving the interrogating party reasonable opportunity to examine and audit records and to make copies,
compilations, abstracts and summaries
c. burden has to be the same for both sides
d. Dont usually do this because they might find docs that 1) dont relate but want to keep private or 2) find something
you dont want them to or 3) youre probably going to have to go through it anyways
7. A party answering interrogatories has no duty to go out and conduct a detailed investigation of facts beyond her control in
order to respond. It is sufficient to respond with information you know or that is within your control.
8. Even if all the ?s are objectionable, you still have to answer w/ objections stated with specificity
a. Attorneys sign the objections because theyre coming from the law and it is their job to know when to object
9. SC has standard Interrogatories pre approved. sounds similar to automatic disclosure

Requests for Production of Documents -- Rule 34

1. Authorizes a party to require an opponent to produce designated documents or things in its possession, custody, or control
for inspection and copying.
a. Or a persons right to those documents (transcripts and medical records)
2. Authorizes inspection of tangible things (ex: inspection of car or urine sample)
3. Parties resist document requests by construing them narrowly and by liberally invoking the priviledges and other objections
a. Note: if objections are asserted without basis, the responding party may be sanctioned
4. Drafted broadly to ensure that opposing party doesnt avoid discovery by narrowly construingdocs mean
5. Parties can offer to open their records as they are kept in the ordinary course of business Rule 34(b)(2)(E)(i)
a. Cause greater burden on requesting party
6. In sum, items requested may be
a. Documents, electronically stored info, or tangible things
b. Permission to enter designated land/property
7. Can you destroy documents?
a. You have an ethical obligation to preserve and not to destroy evidence
i. Litigation hold: if there was a lawsuit, or there is very likely going to be a lawsuit, you cannot delete
documents having to do with related topics
8. Time to respond: party that has to respond to request must do so in writing within 30 days after being served. 34(b)(2)(A)
Discovery of Electronic Documents Rule 34(b)(2)(E)
1. Leads to production of massive amounts of material
2. The process of reviewing and producing records can be enormously complicated and expensive
3. Metadata information that is associated with electronic files (cant see in a PDF, but out the other may require ESI form)
4. Once litigation starts, the duty to preserve kicks in
a. Sanctions against spoliation
b. Record retention programs

Mental and Physical Exams Rule 35

1. Need court order intrusive and invasive
a. which will only be granted for good cause (Rule 35(a)(2)(A))
b. BUT parties can arrange together without a court order
2. Normally court stipulates in 26(f) conference at the beginning of the discovery phase
3. Professional does not have to be a medical doctor only suitably licensed or certified examiner
4. Who can be examined? A party to the case or person under the custody or control of the party (kid) Rule
a. Ex: Cannot get a medical examination on a nonparty (i.e. witness), but you can depose them, ask them to bring a
copy of medical report.
5. Both sides can get copy of report and all like reports of earlier examination or later if requested (Rule 35(b)(3))
6. The person who was examined can get the report from the Plaintiffs examiner (Rule 35(b)(1)). By doing so, the examined
party waives any privilege as to any of their own reports from their own doctors. (Rule 35(b)(4)).

Requests for Admission Rule 36

1. A means of narrowing the scope of trial by eliminating uncontested issues. things admitted are deemed established for
purposes of the case
2. Authorizes a party seeking admission of certain facts to send a request to an opponent to admit those facts. The receiving
party is required to admit or deny the truth of the statements, or raise an objection to the request.
a. Effect if not responding by objection or an answer (30 days) admission
3. Admitting party may learn later that she had grounds to contest facts previously admitted can move withdraw the
admissions (Rule 36(b)).
a. Judges often grant theses requests b/c they want the issues resolved on the evidence and not concessions

Rule 30 -- Depositions
A deposition is the taking of testimony from a witness under oath. Counsel for both parties sit down with the witness, and the
attorneys requesting the depositions questions the witness. The testimony is recorded by a court stenographer.
1. Can take the deposition of any person, including a party. persons who are not parties (witnesses, physicians, custodians
of relevant records, etc.) Rule 30(a)(1)
2. If a person to be deposed is not a party, she must also be subpoenaed for the deposition under Rule 45.
a. A subpoena is a court order to appear and give testimony.
b. If deposing counsel wishes a non-party deponent to produce records or other tangible evidence for the deposition,
she must serve a subpoena duces tecum to command the production of the requested items, specifying the
documents or tings to be brought to the deposition.
3. Person deposed is under oath and on the record may be examined by deposing counsel on any issues within the scope of
a. Objections
i. Counsel representing the deponent may object, but the witness is usually required to answer the question
(Rule 30(c)(2)).
1. Counsel frequently stipulate at the beginning of the deposition that they will save all objections
(except to the form of the question or as to privilege) until the time of trial.
ii. Where an objection is based on privilege (or enforce limitation by court order or present a motion under
30(d)(3)) Counsel for the deponent will instruct deponent not to answer the question
4. Counsel for the deponent has the right to cross-examine after deposing counsel has finished (usually for clarification b/c can
talk to her own witness privately)
a. If the deposition is a trial deposition (one that will be used at trial in place of the witnesss live testimony), counsel
will cross-examine fully
5. Rule 30(b)(g) an agent of an organization binds the organization in their deposition. The organization has a duty to prepare
and designate
6. Glannon:
a. Most effective method of obtaining detailed information: gets to see the party answer, party must answer
spontaneously and uncoached, counsel can frame follow-up ?, its on the record
b. Drawback: time and $$ (cost of court reporter per page)
c. Should be taken at the end of discovery when you have a lot of information
Duty to Supplement Rule 26(e)
1. Supplementing Disclosures (automatic) and Responses (Interrogatories)
a. Disclosures made under Rule 26(a), responses to interrogatories, requests for production, or requests for admission
must supplement or correct if incorrect or incomplete w/in a timely manner
b. 26(e)(2) changes must be disclosed by the time parties pretrial disclosure.
i. No duty to supplement lay witnessesalmost impossible too massive hundreds of questions
2. Not covered by the rule: depositions of non-experts!!!

Discovery Certifications Rule 26(g)

1. 26(g)(1) Signing Disclosures and Discovery Requests, responses, and objections (Rule 11 for disclosures) must be signed
a. making certifications by signing
b. similar to Rule 11(b)
2. 26(g)(3) sanctioned for improper certification w/o substantial justification ct determines if substantial justification
a. Who gets pays?
i. The signer, the party, or both
b. Who gets the sanctioned $?
i. Sometimes the aggrieved party
ii. Sometimes the court

Discovery Sanctions Rule 37 (Failure to make disclosures or to cooperate)

1. 37(a): Motions to Compel.

a. What is covered?
i. Covers total and partial disclosure-related failures
1. 37(a)(3)(A) Party fails to make disclosures under 26(a)
ii. Situations where Rule 33 (interogattories) and 34 (production of documents) responses are served but the
responding party fails to address particular interrogatories/requests, either by skipping them or by raising
illegitimate objections:
1. 37(a)(3)(B):
a. corportation/entity fails to make designation under 30(b)(6)
b. party fails to answer an interrogatory under Rule 33
c. Party fails to produce documents, fails to respond that inspection will be permitted, or
fails to permit inspection under Rule 34
iii. Situaitons where a deponent shows up for the deposition but does not answer a particular question
1. 37(a)(3)(B) deponent fails to answer a question under 30 or 31
iv. Note: 37(a)(4) evasive or incomplete disclosure, answer, or response is treated as a failure to disclose,
answer, or respond
1. They have responded but left something out

2. 37(b): Disobedience of Court Order. Note that this provision is normally triggered only where the court has already issued
an order in response to a motion to compel or a motion for a protective order. (ct grants motion to compel)

3. 37(c): Failure to Disclose, to Update Discovery Responses, or to Admit a Fact.

a. Failures to disclose or supplement under Rule 26(a) and (e)
b. Failures to admit under Rule 36
c. Note: This provision lists some specific situations applicable to these problems

4. 37(d): TOTAL FAILURE of Party to Attend Own Deposition or to Serve Rule 33 or 34 Responses.
a. Note the difference between these situations and partial failures covered by 37(a).
i. Difference btw this and 37(a)?
1. 37(a) covers partial failures. This section talks about TOTAL failures
2. This is talking about failure to appear not disclosure. 37(d) is also failure to serve where 37(a) is
failing to make designation or failure to answer.
b. Whats covered?
i. Party didnt even show up to its own deposition
ii. Party didnt serve ANY answers to interrogatories
iii. Party didnt respond AT ALL to a request for inspection

5. 37(e): Electronically Stored Information (ESI). This provision notes that a party cannot be sanctioned if it negligently
loses ESI in good faith or destroys ESI in good faith because of an existing document destruction/retention policy.
HOWEVER, a court may issue these sanctios upon a finding that a party intentionally failed to preserve such ESI in order to
deprive other parties of it. Note that a party acquires an affirmative duty to suspend its normal document destruction policy as
soon as it reasonably anticipates litigation. At that point, the destruction policy will not be an excuse for failing to provide
requested docs under Rule 34.

6. 37(f): The 26(f) Conference. A party may be sanctioned for failing to participate in good faith with opposing counsel in
framing a discovery plan.


A Set of Ordered Questions for Discovery-Sanctions Situations

1) Did party disobey order? 37(b).

2) If not, did party fail to serve responses/appear at depos? 37(d). Fail to serve disclosure at all? 37(a)(3)(A) and 37(c)(1).

3) If party served disclosure but did not answer particular q. or disclose particular fact, 37(c)(1) applies and party cannot use info at
trial, and jury may be informed. Also, other sanctions in 37(b)(2)(A)(i)-(vi). (See 37(c)(1)).

4) If party served discovery resp. or showed for depos. but did not answer particular q./request, move to compel under 37(a). Can
get costs of motion if its granted.

5) If party served disclosures/discovery responses but disclosures/responses were incorrect, incomplete, not in good faith, not made
after reasonable investigation, 26(g) applies. Court must impose appropriate sanction. 26(g)(3).

When and how may parties request juries?

7th Amendment preserves right to jury
Federal Courts ONLY (state courts look to their constitution to see what they reserve a jury right for)
1. Right exists at law, not in equity
a. How to tell if someone has a right to jury trial? look at the remedy that the claimant is seeking If legal
remedy (usually $$$), then there is a 7th amendment right to a jury trial.
i. Legal claim remedies: usually $$ damages
ii. Equitable Claim remedies NO RIGHT TO JURY
1. Injunction
2. Specific Performance
3. Rescission
4. Reformation
b. Mixing legal claims and equitable claims
i. Preclusion doctrine: when legal claims mixed w/equitable claims, court will allow jury to hear the facts on
the legal claim first. This later binds the court will allow the equitable claim to be heard.
c. This a right to have a jury; there is no right to refuse a jury (that another person properly demanded)
2. Jury trial is waived unless a partys demand is properly served and filed.

3. How do you invoke the right to jury trial?

a. Make a written demand can be included in the complaint
i. No later than 14 days after last pleading

When can a judge decide a case without a trial?


1. Rule 56(a) Authorizes the Court to enter judgment whenever it appears that there is (1) no genuine dispute of material
fact and (2) the movant is entitled to judgment as a matter of law
2. Allows early resolution of cases in which the Plaintiff meets the minimal burden to plead the elements of a compensable
claim (defeats 12(b)(6)), but cannot prove one or more of those elements.
3. 56(b) Can make motion for SJ any time until 30 days after the close of all discovery (filed before trial)
4. 56(c)(3) The court need consider only the cited materials BUT it may consider other materials in the record
5. Partial summary judgment (Rule 56(g)) disposes of some, but not all, issues in the case

6. Test If the evidence, taken in the light most favorable to the nonmoving party, shows that there are no genuine
issues of material fact and that the moving party is entitled to judgment as a matter of law.
a. Another test whether a reasonable jury could find for the non-moving party

7. Two situations for summary judgment:

1. parties agree on all the facts and the dispute is entirely about the law
2. parties disagree about the facts, but there is no genuine dispute one side has so little evidence
that no reasonable jury could find for that side

8. Assessment of the Evidence (for situation #2)

a. Court is allowed to go beyond the allegations of the pleadings and to assess evidence (unlike for 12(b)(6)).
i. If court looks to evidentiary materials in ruling on 12(b)(6), simply converts motion into one for summary
ii. Court considers materials such as affidavits or other sworn statements such as depositions or interrogatory
answers. All the evidence is considered in written form.
1. affidavits a voluntary declaration of facts written down and sworn to by the declarant
b. Court should draw from the evidence all reasonable inferences on behalf of the non-moving party, but must decide
that inferences are reasonable.
i. Court does not assess credibility (for jury)
1. If the resolution of the case turns on which witness is believed, the court will deny summary
c. Burden:
i. burden of production the obligation of one side to come forward with evidence to support its claim
ii. burden of persuasion the degree of certainty the fact finder must have before it can find for one side
1. No summary judgment for Defendant if Plaintiff has met burden of production
2. No summary judgment for Defendant if evidence unreasonably favors the party with the burden
3. No summary judgment granted where reasonable minds can disagree
9. Whats the difference btw summary judgment and 12(b)(6)?
a. 12(b)(6) based on the face of a complaint allegations
b. 12(b)(6) applies to insufficient pleadings
c. Sum. Judgment (Rule 56): after evidence revealed any reasonable fact finder would have to find only one way.
d. In sum. Judgment, a non movant can make a legal argument doesnt have to be in dispute for the judge to
determine summary judgment not permitted.
i. Motion to dismiss - court relies solely on the pleadings to determine the facts
1. All facts alleged in the complaint are assumed to be true (if theyre plausible)
ii. Motion for SJ court looks beyond the pleadings and considers material ssuch as affidavits or other sworn
1. In ruling on a motion for SJ, the court does not assess credibility court views evidence in favor
of the non-moving party
e. Coble v. City of White House
i. Coble claimed that Officer Carney used excessive force against him during an arrest for drunk driving. The
District Court entered SJ in favor of Carney
ii. Issue: Whether the District Court erred in fining that there was no question of fact for trial because Coble
stestimoney regarding the force was contradicted by a contemporaneous audio recording
iii. Holding:
1. Even if the partys story is blatantly contradicted by the record, this does not permit the court to
discredit his entire version of the events.
2. In reviewing a summary judgment motion, credibility judgments are prohibited.
3. When the non-moving party presents direct evidence refuting the moving partys motion for
summary judgment, the court must accept that evidence as true.
f. Timeline: __________________________________________________________________________________

10. Responding to Motion

a. When a summary judgment motion is made and adequately supported, the non-movant must respond by producing
admissible evidence that tends to prove the challenged element. Rule 56(c)(1), (2)
b. If non-movant produces such countervailing evidence, summary judgment must be denied.
i. Thus, the burden is on the party opposing summary judgment to show that he has legally competent
evidence upon which a jury could resolve the factual issues in his favor.
c. If the non-movant does not produce countervailing evidence, he has not demonstrated that there is a factual dispute
for the jury to decide.
d. Celotex Motion: a party may motion for SJ when an nonmovant/opposing party has a burden of proof and fails to
provide factual support to establish the burden of proof.
i. Nonmovant has burden of proving something and movant can point to a lack of evidence on that point
ii. A party can support a SJ motion with materials that show that opponent who has the burden of proving a
material (essential) fact cannot prove that fact
iii. How?
1. Attach an interrogatory answer where nonmovant says that they dont have evidence on that point.
Thats enough to support the burden for motion of SJ, so the burden is shifted back to the P to

What motions can the party make after evidence has been presented?

(Directed Verdict) Rule 50(a) Judgment as a Matter of Law aka JMOL Post trial
1. FRCP 50(a) Judgment as a MOL in a jury trial:
a. If the court, having heard the evidence at trial, concluded that no reasonable jury could find for one side, the court
may enter judgment without submitting the case to the jury
b. Even if the court believes that the preponderance of the evidence favors one party, if jury could rationally find for
the other party, it must be given an opportunity to assess the case
c. JMOL: determined before the jury goes out, taking the case away from the jury
i. Used as a device by judges that they may use to control the jurys decision making process
ii. Either party may move for a JMOL (directed verdict)
iii. Determines the outcome as a MOL
d. Party can move on a single issue (ie: motition for judgemnet on one issue)
e. Very hard to get judges want a jury verdict to work with and usually juries get it right
2. Standards:
a. Three standards:
i. Case should go to jury if there is even a scintilla of evidence to support the opposing partys case
ii. Requires judge to consider only evidence that supports the case of nonmoving party judge must assume
the truth of all evidence offered by nonmoving party, take all inferences from the evidence in light most
favorable to that party, and enter jmol only if that evidence would not support a verdict for the nonmoving
1. Test: Whether the jury, if it chooses to believe the nonmovants evidence, would have sufficient
evidence to support a verdict for that party
iii. Requires the judge to consider the nonmoving partys evidence in its most favorable light but also consider
any evidence put forward by the moving party that is not impeached or contradicted by the opposing
partys evidence
3. Difference between SJ:
a. The court, in Sj, makes its ruling on the basis of affivadits before trial while DV is granted on the basis of the
evidence directed at the time.

Renewed JMOL (JNOV) Rule 50(b)

1) FRCP 50(b) JNOV (Renewed JMOL) (hard to win this motion)
a) A party may move for JNOV after jury renders an unfavorable verdict (up to 28 days after judgment rendered) only if the
party made a motion for JMOL before the jury retired to deliberate
b) Sidesteps 7th Amendment b/c instead of stripping verdict from jury, this supposes that court is revisiting a motion for JMOL
thus, court is determining a question of law, not re-examining a jury determination on a question of fact
c) Why would the court deny a JMOL before a verdict, and approve a JNOV after the verdict?
i) Faith in the jury system judicial system has faith juries will arrive at correct answer without judicial intervention
ii) Preserving a verdict if judge grants JMOL before the verdict, and the appellate court reverses the case, the entire trail
must be redone b/c the jury never rendered a verdict
2) Standard
a) Same as SJ: court may enter JNOV if evidence presented only allows for a reasonable jury to come to only one conclusion
b) Court must view the facts in the light most favorable to the non-moving party

New Trial Rule 59

1. Not dispositive
2. Any party can motion for new trial at bench or jury trial
3. Two general categories of cases in which courts have traditionally granted new trials:
a. Procedural Errors in the trial process (a violation of due process) may taint the juries decision making process
b. Process was fair but judge believes result was clearly wrong (verdict went against the great weight of the evidence)
4. Notice that a new trial can be granted by (1) motion from a party or (2) on the courts own initaitve
5. If JMOL motion was denied (meaning there was enough evidence for reasonable minds to disagree, but the great weight of
the evidence goes a certain way), judge can grant a new trial.
a. cannot take the case away from the jury if reasonable minds can agree
b. LOWER STANDARD THAT JNOV: with a 50(b) you have to show NO reasonable juror could have come with the
verdict. With Rule 59, its saying the scale was in your favor and its fishy that its coming out this way
i. Can make a 50(b) before the verdict and a rule 59 as in the alternative
6. Test Judge may grant a new trial if the jurys verdict is against the clear weight of the evidence.
7. The judge may consider the credibility of the witnesses
8. Judge may also grant partial new trials
9. If the right to jury trial is invoked, the first and the second trial must go before a jury Rule 38

Dadurian v. Underwriters at Lloyds of London CoA reverse the trial courts denial of a new trial. The jury;s verdict was against the
great weight of the evidence strong evidence that knew he was giving false testimony

Back-up: If you miss the 28-day window to request under Rule 59, see if Rule 60(a)-(c) can save you.
If you discover evidence more than 28 days after the judgment, party can move for relief under Rule 60, provided the motion
is filed no later than one year after entry of the judgment.

Rule 60 Relief from an order

(a) Clerical mistakes
(b) Judgment
(i) Gives legal effect
(ii) If it was jmt for the claimant, they become a judgment creditor
1. You can use legal mechanisms (sheriff can seize property)
(iii) Provokes preclusion doctrine cant relitigate same claims
(iv) Allows court to vacate a jmt
(1) Usually by
(2) New evidence evidence had to have existed at the time of the intial trial (miracle drug example)
a. Wed never have any finality if this wasnt the case
May parties include additional claims and parties in their lawsuit?
Glannon p. 259 hypos

1. Traditional rule in American courts the Plaintiff is master of his claim

a. Plaintiff can decide who the parties to the suit will be and which claims will be asserted in the action
2. Allows for efficiency and avoids inconsistent judgments
3. Does not require parties to be joined recognizes differences in parties wishes and jurisdictional problems

Joinder of Additional Parties

Rule 20(a) Initial Joinder
(1) Plaintiffs. Persons may join in one action or action as plaintiffs if:
(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences; AND
(B) any question of law or fact common to all plaintiffs will arise in the action.
Rule 20(a)(1) allows Plaintiffs to sue together if they assert claims arising out of the same transaction or occurrence (or series of transactions or
occurrences) AND their claims against the Defendant(s) will involve a common question of law or fact.
If 20(A) satisfied, inevitably satisfies 20(B)
Does not require parties to be joined whenever the criteria in the rules are met
(2) Defendants.
Rule 20(a)(2) allows Plaintiff(s) to sue multiple Defendants in a single action if the same criteria are met.

Joinder of Claims
Rule 18(a)
In General. A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as
many claims as it has against an opposing party.
Provides that a party seeking relief from an opposing party may join with his original claim any additional claims he has against
that opposing party
Party means any party seeking relief against another party (not just the original Plaintiff)
No common transaction or occurrence requirement permissive (can join unrelated claims)
o Save costs filing costs , etc& money judgment all at once

Rule 42(b): Separate Trials. For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of
one or more separate issues, claims, cross-claims, counterclaims, or third-party claims. When ordering a separate trial, the court may
preserve any federal right to a jury trial.
a) Policy of Rule 42: weighing efficiency, convenience, and justice. Rule 42 lurks in the background.
b) Orders separate trial if it would be confusing for the jury to hear everything in one.

Rule 13 Counterclaims and Crossclaims (comes in two flavors)

a) Compulsory Counterclaim 13(a) = related
a. the defending partys counterclaim arises from the same transaction or occurrence as the claim against him
b. he must assert it in the original action or lose it
c. forces parties who are already adversaries to litigate all claims arising from the same set of facts in a single action
d. Must be asserted or else the party loses the ability to assert it later in litigation
i. If fails to assert compulsory counterclaim in the first action, and attempts to assert the claim in later
litigation, can use Rule 13 as defense by making a motion for SJ (56), evidenced by the pleadings prior to
trial, to bar from asserting the claim
1. Here, compulsory counterclaim is a defense and SJ motion is the procedural mechanism to raise
that defense
ii. Policy: would be inefficient to have a separate lawsuit about the same accident.
b) Permissive Counterclaim 13(b) personal autonomy theme
a. Any claim that is not compulsory
b. Court will almost certainly order a separate trial under Rule 42(b)
c. allows a Defendant, once brought before the court, to settle all his claims against his opponent without having to file
a separate lawsuit
g) Crossclaim 13(g)
a. assertion of crossclaims arising out of the same transaction or occurrence as the main claim
b. A crossclaim is a claim asserted by one party against a co-party (someone on the same side of the v as the claimant)
c. allowing assertion of these claims in the main action promotes efficiency and consistency because the same
underlying facts will be litigated on the main claim and on the crossclaim
d. crossclaim is optional (will not be waived)
e. Rule 18 a party seeking relief from an opposing party may join with his original claim any additional claims he has
against the opposing party (**hardest thing about 18 is to remember that its there**)
i. No need for common transaction or occurance
ii. Note: pleader includes original , party counterclaiming, party crossclaiming, or a third party claim
c) Joining Additional Parties go to rule 20 Rule 13(h)
Rule 20 Joining Parties
Applies to or to asserting counterclaims
When can a join several s?
o When the claims arise out of the same transaction AND
o Any question of law/fact in common
o Most of the time, if you satisfy (A), you satisfy (B)

Jurisdictional Issues with Joinder Joinder rules do not confer any rules about jurisdiction
Joinder claim is still must be subject to subject matter jurisdiction in the federal courts.

Impleader Rule 14
When can a defendant bring in a new party and assert a claim against him or her?
o The third-party plaintiff
o The impleaded third-party defendant
Rule 14(a) gives the a limited right to implead new parties against whom she has claims related to the main action.
o may bring in a person not yet a party to the suit who may be liable to her for all or part of any recovery the Plaintiff
obtains on the main claim. derivative liability
indemnification complete reimbursement
contribution partial reimbursement
Made by common law, by contract, or by statute The state substantive law must allow for contribution or indemnification.
The impleaded party may escape liability by defeating either:
o The s original claim (because if the doesnt have a claim against the original , the impleaded party will also not
be held liable)
o The derivative claim against her
The rule allows 3P impleader to assert defenses to both
Not required may under 14(a)(1)
Allowed to tack on 18(a) claims if has a claim that relates first

First General v. Miller

- In SC, cannot implead a third-party defendant under Rule 14 for contribution (partial amount), only for indemnification.
Because the original defendant must have paid before an action for contribution is viable lawsuit isnt done yet.
- S.C. can implead for indemnification, NOT contribution Claim for contribution not ripe until original has paid
more than his share of damages until judgment against
FOR EXAM: Assuming that the relevant state law authorizes contribution among joint tortfeasors.
** In SC, cannot implede someone as joint tortfeasor in contribution equitable indemnity**

Marvicka v. Brodhead-Garrett Co.

all or part of Plaintiffs claim
1. Contribution based upon the common, though not necessarily identical, liability of two or more actors for the same
injury. It equalizes the burden on the wrongdoers by requiring each to pay his own proportionate share of damages.
2. Indemnity enables one tortfeasor to shift the entire burden of the judgment to another; allows one who has been
compelled to pay solely because of a certain legal relationship to shift the ultimate burden
The fact that contribution may not actually be obtained until the original defendant has been cast in judgment and has paid does not
prevent impleader.

Rule 14(a)(1)
Impleader claim is treated like an original suit (ie: for pleading, filing, process,etc purposes) The defendant as third-party
plaintiff must file a third-party complaint against the impleaded third party defendant only if nonparty liable to
Third-party complaint (original ) must comply with the pleading requirements of Rules 8-11 & must be served under Rule 4
Third-party Defendant must respond under Rule 12 and has the same options to answer or move to dismiss.
Original Defendant may implead a 3P within 14 days of answering the original complaint without obtaining leave of court.
Automatic Impleader provision
outside this period it is always within the courts discretion to refuse to entertain the impleader claim
Factors favoring: efficiency of hearing the related claims together and avoidance of repeated suits or inconsistent
Factors suggesting denial of impleader: delay in seeking impleader, complication of the issues in the main action,
and potential prejudice to the plaintiff from impleading a sympathetic third party

Rule 14(a)(2)
What a Third-Party Defendant Can Do: act like a normal
must assert any defense against third-party plaintiffs claim under rule 12
The impleaded party may escape liability by defeating either the Plaintiffs original claim or the Defendants derivative claim
against her. Consequently the rule allows her to assert defenses to both. 14(a)(2)(A) Defenses to third-party claim
14(a)(2)(C) Defenses to plaintiffs claim against original defendant
i) Derivative liability: only used for reimbursement, theories of indemnification (from express k provision or implication)
or contribution (jointly and severally liable in tort)
(1) Third partys liability derives from you as a defending party being liable to your opponent
(2) Impleaded party is only liable if:
(a) Original D is found liable; and
(b) Original D successfully demonstrates the 3P is liable for all or part of the Ps remedy
b) Not mandatory b/c defending party may not have chosen the forum

Jurisdictional Issues with Impleader

Impleading a third-party defendant does not affect the courts jurisdiction over the original claim!!!!! p. 274
However, there must still be a basis for subject matter jurisdiction over the impleader claim. If there isnt subject
matter jurisdiction, there will usually be supplemental jurisdiction.
The impleaded party is also disregarded in determining whether venue is proper.
Can a party pursue its claim in a given court system?
Subject Matter Jurisdiction

Federal courts have limited subject matter jurisdiction, which means they can hear only specific types of cases.
There is a presumption against federal jurisdiction.
Three categories of federal subject matter jurisdiction:
1. federal question cases that arise under federal law
2. diversity cases
3. supplemental jurisdiction

State courts (anything not fed COAs) have general subject matter jurisdiction, which means that they can hear any cognizable claim
at all.
- (Except those over which the federal courts have exclusive subject matter jurisdiction admiralty, bankruptcy, patent
and copyright infringement, antitrust, and securities cases.)

Subject matter jurisdiction cannot be waived by the parties (rule 12) or the court, because for the court to exercise jurisdiction
over the case would be unconstitutional. Court would otherwise be acting unconstitutionally.
Likewise, parties cannot create subject matter jurisdiction by consenting to suit in the federal courts (or if one party never
makes a motion).
Court can/will/should dismiss sua sponte (court dismisses case on its own).

Two Types of Sub Matter Jur

1. Original S.M. Jur (must be in this jdxn for removal)
2. Appellate S.M. Jur
**for the most part anything that can be heard in fed ct can be heard in state ct**
Federal Question
1) US Const. Art. III, 1 & 2
2) 28 U.S.C. 1331: Federal Question. The district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the U.S.
a) Statute interpreted more narrowly than the Constitution
b) State jurisdiction over cases raising federal questions is concurrent absent exclusivity to the federal courtsthis is referred to
as concurrent jurisdiction
i) Concurrent jurisdiction: When more than one court has SMJ over a case, and a litigant can choose which court to bring
the case. Often refers to when both state and federal courts have SMJ. It takes an affirmative act of Congress to take
jurisdiction away from state courts.
c) Ordain and establish clause: means that Congress can give the lower courts all or just some of the jurisdiction granted by the
d) The US Supreme Court has jurisdiction to review state court decisions involving federal questions even when lower federal
courts do not have the jurisdiction under the federal question statute.
e) Policy:
i) Promotes uniformity of federal law
ii) Encourages judicial expertise in interpreting federal law
iii) Protects against possible state-court hostility to claims arising under federal law

3) Arising Under Jurisdiction

a) Federal Ingredient Test: SMJ exists if, at a minimum, one part of the COA involves a federal issue. Osborn v. Bank of US.
i) i.e. tort claim but FDA regulates labels (Merrel Dew Case)
(1) Merrel Dew was a negligence claim based on a drug failed to complyt with FDA regulations
(a) Tried to say failure to comply w/ fed. Reg. was a breach of duty of negligence (state tort law)
(b) SCOTUS said there are times when a federal issue is embedded within a state claim exception, but this is not
one of them. There are so many regulations that dont provide a cause of action and if they let this case
bootstrap its way into federal court, itd open the flood gates
b) substantial federal issue approach: (Grable v. Darue; pg. 224)
i) A federal court ought to be able to hear claims recognized under state law that nonetheless turn on substantial questions
of federal law
ii) In Grable, the sued the IRS because they seized his land for non-payment and that notice and seizure were invalid
(1) Embedded in this state law issue (property) is a federal issue (court will have to rule on federal tax policy to answer
state issue). Can adjudicate the state issue w/o ruling on Fed. Issue which will effect fed. Gov.
(a) SCOTUS says this is different from Merril Dow because the IRS will have difficulty selling property if
different state courts get to interpret federal seizures. No uniformity.
(i) Says there is a substantial federal issue
iii) Factors to Consider:
(a) There is federal subject matter jurisdiction if:
(b) Necessary to resolving state law claim?
(c) Is the issue substantial?
(d) If subject matter jurisdiction is granted, would it disturb the balance between federal and state power?

c) Well-pleaded Complaint rule (sets forth only a claim, unadorned by anticipated defenses or other extraneous material): P
cant anticipate a defense. The federal question must be integral to the Ps COA, as revealed by Ps complaint.
i) Louisville & Nashville RR Co. v. Mottley (pg. 215 F&P)
ii) Has the effect of funneling many questions of federal law out of federal courts and into state courts
iii) SMJ, based on a suit arising under the Constitution and the laws of the US, is established only when the s statement of
his own cause of action shows that it is based upon those federal laws or constitution.
(1) It is not enough for the to allege an anticipated to his cause of action and assert that is invalidated by some
provision of the US Constitutoin

28 U.S.C 1332(a)-(c)
Two requirements for a diversity case:
1. must involve citizens of different States
2. amount in controversy must exceed $75,000
1. Claim cannot be dismissed for failure to meet AIC unless it appears with a legal certainty that the
claim is for less than the jurisdictional amount
2. Punitive damages are allowed to be included if reasonably recoverable
1. eliminates home field advantage
a. federal court must apply the same law that the state court would apply
2. to protect outsiders
3. prevent prejudice for bigger cases where bias might matter bc worth more

Complete Diversity Rule

1. Diversity jurisdiction exists only if all plaintiffs are of diverse citizenship from all defendants.
2. Home field advantage does not exist where there are opposing parties from the same state.

How to Determine Citizenship

1. citizenship is determined at the time the case is filed!!!! (adversarial strategy to choose a not in the same state)
2. domicile a person can have only one domicile at a time, and thus can be a citizen of only one state at a time
3. everyone is prescribed a domicile at birth, which is usually based on the domicile of her parents
a. this is retained until it is affirmatively changed (use the last place of domicle if you dont have a current one)
i. Requirements for Changing Domicile:
1. Physically present AND
2. Intent to remain there
a. Courts look at a variety of factors:
i. voter registration
ii. purchase of a house
iii. payment of taxes
iv. in-state college tutition
Corporations 1332(c)
1. state in which it has been incorporation
a. can be incorporated in multiple states
2. state where it has its principal place of business
a. state where headquarters is located OR
b. the nerve center from which the corporate operations are directed by officers and directors
3. Either one of these can destroy diversity
4. Also, this means that a corporation can have citizenship in more than 1 state.

1332(a)(2) if have permanent residence w/green card no diversity if in same state

Mas v. Perry: Found that the couple was only a student of Louisana. Not the domicile. Additionally, the court noted that
although the appellees only amount in controversy requirement is determined by the amount claimed by the in good faith. As a
result, the federal jurisdiction is not lost because a judgment is less than the jurisdictional amount awarded.
Amount in Controversy
1. $75,000 + = at least $75,000.01 (periodically increased in pursuit of inflation)
a. This includes:
i. compensatory damages
ii. punitive damages, unless relevant state law bars punitive damages
iii. maybe attorneys fees in certain cases (ex: civil rights cases)
iv. not costs (ex: filing fees, costs of discovery, etc.)
2. Standard: Plaintiffs good faith claim for more than the amount required controls, unless it appears to a legal certainty that
the claim is really for less
a. Plaintiff controls unless it is quite clear that there is no way that recovery will reach $75,000.01
b. Unless Defending Party shows that there is no legal possibility that the Plaintiff could recover at least $75,000.01
i. How could Defendant show this?
1. liquidated damages
2. damages limited by statute
3. any other legal cap on damages
3. in controversy Where there is legitimate debate as to whether the jury might return a verdict above that amount, the
Congressional mandate is satisfied Court does not have to hear the case
4. Aggregation
a. Rule: Where a single Plaintiff asserts two or more claims against a single Defendant, the amounts may be added
together to reach the required amount. (even if the claims are unrelated)
i. A single Plaintiff cannot aggregate amounts sought from different Defendants. He must meet the amount
requirement against each individually.
ii. Multiple Plaintiffs may not add their claims together to meet the amount requirement, in which neither
party meets the amount requirement
iii. If one Plaintiff satisfies the amount requirement and another Plaintiff does not federal court will have
supplemental jurisdiction over the smaller claim, but only in a case against a single Defendant.
iv. Cannot aggregate when Plaintiff has multiple theories of relief (Ex: Defendant cannot be negligent and act
v. Joint tortfeasors since either might be liable for entire amount, the amount in controversy will be
satisfied against each (>75K goes towards both)
Additional Joinder Rules:
Rule 19: Required Joinder of Parties
b. Designed to look out for someone affected by the lawsuit.
i. Ex: Rocks K w/ mall. Bling K w/ mall. Bling might be an impleader because theyre directly affected by
the lawsuit.
Rule 24: Intervention
The non-party jumps in on their own. Really similar to Rule 19.

Supplemental Jurisdiction
1. Joinder of claim over which there is no independent basis of subject matter jurisdiction
2. The efficiency goals of the Rules favor inclusion of related claims
3. logical relationship between claims the close connection between the original, jurisdictionally proper claim and the
added claim make them part of a single constitutional case
4. 28 U.S.C. 1367
a. 1367(a) giveth jurisdiction if claims forms part of the same case or controversy
i. can add non-subject matter jurisdiction claims to claims that have already been deemed federal
b. 1367(b) taketh away
i. If diversity claim, no subject matter jurisdiction over claims, if claims would be inconsistent with 1332:
Big 1. by Plaintiffs against persons made parties under Rule 14, 19, 20, 24
Picture 2. by persons proposed to be joined as Plaintiffs under Rule 19 we didnt study
3. when seeking to intervene as Plaintiffs under Rule 24 we didnt study
c. 1367(c) Court has discretion not to hear it(even if you make it past A and B)
d. 1367(d) Statute of Limitations is tolled while the claim is pending so that the party has an opportunity to file
suit in state court. Tolled until the case is dismissed or heard.
5. What is same case or controversy?
a. common nucleus of operative fact
6. Breakdown:
a. (a) original jurisdiction fed. ? or diversity in a trial court level
i. Now someone is trying to add more claims
1. Extra arrows not based on fed ? or diversity? Yes, the arrow can still be added so long as (b)
doesnt apply and the court decides to hear it
2. New arrows have to be so related to the claim w/i original jx that they form part of the same
3. This statute is letting in arrows not constitutionally allowed BUT the legislature says is not about
the new individual arrows, but rather, the entire case
ii. Test common nucleus of operative facts
1. Ask if the new arrow: Has fed question? Diversity? Or common nucleus?
iii. YOU NEED AN ANCHOR CLAIM. Other things can be attached.
b. (b) stems from when the anchor claim is ONLY because of diversity
i. Limits supplemental jurisdiction of diversity claims by ORIGINAL or joined or seeked to be a
ii. Basically, you cant just bootstrap
c. (c) when fed courts can decline sup jx
i. Note: novel = unsettled
d. To analysis jurisdiction claims, ask (1) is it original jurisdiction? And then (2) is there supplemental?

28 U.S.C. 1441(a)-(c);
1. The federal removal statutes allow the Defendant, after the Plaintiff has chosen a state court to second-guess that choice by
removing some types of cases from the state court to a federal court. has to file in federal court, then file a notice
a. Notice motion, it is a document that informs the ct & other parties that the is taking a step it is entitled to take
2. 1441(a) only authorizes removal of state court actions of which the district courts of the US have original jurisdiction
a. Can be removed if it could have brought before a federal court to begin with
b. Exception: 1441(b)(2) diversity case may not be removed if one of the Defendants is being sued in home state
i. b/c no local prejudice against Defendant
3. Amount in Controversy for Diversity Claim
a. 1446(c)(3)(A) information relating to the amount in controversy in the record of the State proceeding, or in
responses to discovery shall be treated as other paper under subsection (b)(3).
i. Thus, receipt of discovery answers or court filings that clarify the amount of damages being sought may
trigger a proper removal later in the case
4. There is only one lonely court that can host a removed action: the federal district court for the district and division embracing
the place where such action is pending in state court ( 1441(a)).
a. Therefore, Plaintiff still gets to choose the state where the action will be litigated.
b. Federal venue provisions do not apply to removed actions.
5. Sever-and-Remand ( 1441(c))
a. The general removal statute applies to cases, not claims. When the Defendant property removes a suit to federal
court, the Defendants entire suit is removed, including supplemental jurisdiction claims.
b. The federal court shall sever any claims not within the original or supplemental jurisdiction of the district court or a
claim made non-removable by statute.

Procedure for Removal 1446(a)-(d);

1. The Defendant or Defendants must file a notice of removal in the appropriate federal district court, together with all
pleadings, process, and other papers on file in the state action ( 1446(a)).
a. Must be filed within 30 days of receiving Plaintiffs pleading ( 1441(b)(1)), OR
b. If the pleading does not need to be served and was filed with the court, 30 days of receiving service of the summons
i. Whichever is shorter.
2. The last defendant joined may try to get the earlier joined s to remove a case, even if the time lapsed for the earlier joined
s 1446(c)
3. A case may not be removed under subsection (b)(3) on the basis of jurisdiction more than 1 year after commencement of the
action, unless the district court finds the s acted in bad faith. 1446(c)
4. State court loses control of the case automatically after filing notice of removal. ( 1446(d)). Fed ct has control unless it
a. s shall give written notice to all adverse parties after filing notice of removal
5. Plaintiff can move to remand in the federal court to remand the case back to state court.
a. If the basis for the motion is failure to comply with procedural requirements (e.g., failure of all Defendants to join in
the notice, or failure to remove within the 30-day period), the motion must be made within 30 days after removal or
it is waived.
b. A motion to remand on the basis of lack of subject matter jurisdiction, however, may be made at any time prior to
final judgment in the case.
6. If the right to remove is not clear from the face of the complaint, Defendant may have to allege why it exists in his notice of
a. Removing Defendant can allege in the notice of removal any facts necessary to demonstrate the grounds for
removing the suit 1446(a)
Procedure after Removal 1447(a)-(c)
1. The district court may issue all necessary orders and process to bring all parties 1447(a)
2. Might require removing party to file all records/proceedings w/ state court 1447(b)
3. If there is a defect in removal, must move to remand w/in 30 days of receiving notice 1447(c)
a. If fails to remove for remand w/in 30 days, the waives procedural defect and the case CANNOT be remanded
b. If it appears at anytime the district court lacks SMJ it will be remanded
i. Can happen via sua sponte

Personsal Jurisdiction (In Personam)

Can a party sue this in this state?
1. Procedural due process
2. Waivable defense 12(b)(2) lack of personal jurisdiction because personal jurisdiction deals with the rights of the
Defendant and he/she must choose to exercise these rights
3. Purpose:
a. protects the Defendant against the burdens of litigating in a distant or inconvenient forum
b. acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their
status as coequal sovereigns in a federal system Federalism/State sovereignty issue
i. Full Faith and Credit Clause (Constitution) every State must enforce the judgments of every other
1. Exception: unless the court that rendered the judgment lacked personal jurisdiction over the
Specific Personal Jurisdiction jurisdiction based on a persons minimum contacts with the forum state when the claim arises
out of or is related to those contacts
4. Minimum Contacts Test is the s conncection to the forum state sufficient so that it would not violate his due process
right to force him to defend the action there?
a. Did Defendant purposefully avail himself?
i. Should have deliberate contacts w/the state
b. Is the Defendant amenable to suit?
i. Look at s interests as well and determine if exercising jurisdiction would be reasonable

The Shoe Spectrum: General

Decreasing contacts Increasing contacts |
no casual or single, related continuous | substantial
contacts isolated act but limited | or pervasive
no no specific specific | general
jurisdiction jurisdiction jurisdiction jurisdiction jurisdiction

5. Minimum Contacts International Shoe

b. Facts: State of Washington is suing International Shoe to recover unpaid contributions to unemployment
compensation fund.
Minimum contacts employs salesmen who exhibit samples and solicit orders, and then transmits orders to
companys office in St. Louis
c. Rule:
i. Personal Jurisdiction
1. Fact: A corporation that chooses to conduct activities within a State accepts a reciprocal duty to
answer for its in-state activities in the local court.
2. Rule: Due process requires only that in order to subject a Defendant to a judgment in
personam, if he be not present within the territory of the forum, he have certain minimum
contacts with it such that the maintenance of the suit does not offend traditional notions of
fair play and substantial justice.
a. General Jurisdiction
i. The Defendants forum contacts are very substantial
1. continuous and systematic
ii. state of incorporation and state of its principal place of business
iii. Plaintiff can assert claims against person/corp. even if the contacts are unrelated
to the claim
b. Specific Jurisdiction
i. Suits in which the contacts are related to the claim
d. Holding: Washington has personal jurisdiction over International Shoe. Establishes Specific Jurisdiction
2. Statutory limitations
a. Every state can pass statutes detailing the situations in which its courts will exercise personal jurisdiction
3. Statutory sources for personal jurisdiction
a. Physical prescence in the forum state when served with process
b. Domcile
c. Consent express or implied
d. Waiver occurs where the acts in a way that is inconsistent with his argument that the forum lacks a basis for
asserting personal jx over him
e. Long-arm Statutes a state law allowing the states courts to exercise jx over out-of-state or nonresident s . Today,
every state has a lon-arm statute.
i. Limited enumerated
ii. Unlimited unenumerated
4. Constitutional Limitations:
a. Internationla Shoe Due process requires that, in order to subject a to a jmt in personam, if he be not present
within the territory of the forum, he have certain minimum contacts with is such that the maintencance of the suit
does no offend traditional notions of fairplay and substantial justice
b. Two Components:
i. Minimum Contacts
ii. Fairness
6. Other Cases
a. McGee v. Intl Life Insurance Co.
i. Facts: McGee () the beneficiary of a life insurance policy held by International Life (). a Texas company,
brought suit in California when International Life refused to pay.CA citizen purchased insurance from TX
1st -Statutory Limits:
company. Court held that CA state court had personal jurisdiction over TX company even though the
(1) Longarm company only mailed the person his reinsurance certificate to CA.
2 Constitutional Limits: ii. Rule: A state may exercise jurisdiction over a defendant whose contacts with that state consist of only a
(1)Minimum Contacts: single act, provided that that act is what gave rise to the claim for which jurisdiction is being sought. and
Purposeful was deliberately directed toward the state.
Availment b. Hanson v. Deckla (Purposeful Availament)
Foreseeability i. Woman created trust, executed in DE naming a Delaware bank as trustee, designated recipients in Fl
(2)Fairness: (retired to FL). Court held that when the trust was created, there was no connection with Florida. Court
Ashai Factors found that the later move to Fl was not sufficient to create jurisdiction
ii. As a general rule, the States exercise of power requires some act by which the Defendant
purposefully avails itself of the privilege of conducting activities within the forum State, thus
invoking the benefits and protection of its laws.
1. s actions must be intentionally directed to the forum state
iii. no jurisdiction over a unilateral activity by the Plaintiff
1. Distinguished from McGee bc there was no instance in which the trustee performed acts in FL, no
purposeful availment
c. Gray court ignores Hanson
i. Plaintiff sued Defendant in Illinois that had negligently manufactured a water heater valve in OH, which
was incorporated in a water heater in Pennsylvania by a different manufacturer. The assembled water
heater was later sold in Illinois and exploded there.
ii. Rule As a general proposition, if a corporation elects to sell its products for ultimate use in another
State, if is not unjust to hold it answerable there for any damage caused by defects in those products.
Illinois Court has jurisdiction (stream of commerce)
d. Asahi Metals Stream of Commerce
i. Facts: motorcycle accident. Plaintiff (injured party) v. Cheng Shin (Taiwan) impleads Asahi (Japan)
stream of commerce case. Plaintiff settles with Cheng Shin. Issue is Cheng Shin v. Asahi in California
Supreme Court.
ii. Rule: No majority decision in rule that governs minimum contact in stream of commerce cases:
1. OConnor
1) placement in stream of commerce PLUS (+) some kind of conduct directed at the forum
i. Ex: advertising
ii. OConnor says no personal jurisdiction because not enough minimum contacts
(fails test above).
2. Brennan
1) Mere placement in stream of commerce is enough to constitute purposeful avaiablement
i. Brennan says Asahi passed the minimum contacts test, but failed in the fairness
1. California may be treading on Taiwans interest in overseeing this
2. high burden on the parties
3. low jurisdictional power?? This case is based on contract entered
into in Asia
iii. Holding: Court was unanimous in holding that CA does not have personal jurisdiction over Asahi, but no
majority decision for the rule governing minimum contacts for stream of commerce cases.
e. J. McIntyre Machinery v. Nicastro
i. Facts: Nicastro injured by machine (machine chops off finger) manufactured by J. McIntyre (company
based in the UK). Nicastro sues in NJ state court.
1. Contacts (1) an independent company agreed to sell J. McIntyres machines in the US (2)
attends annual conventions in the US but never in NJ (3) no more than four machines ended up in
NJ (4) has both European and US patents (5) US distributor structured its advertising and sales
efforts in accordance with J. McIntyres direction and guidance
ii. Rule: Plurality applies the OConnor Test (still does not establish majority rule):
1. The placement of a product into the stream of commerce, without more, is not an act of the
Defendant purposefully directed toward the forum State.
2. Does not pass the minimum contacts test, so cannot consider the fairness factors such as NJs
strong interest in protecting its citizens from defective products
iii. A single sale of a product in a state does not constitute an adequate basis for asserting jurisdiction over an
out-of-state , even if places good in stream of commerce, aware that such a sale will take place.
iv. Touchstone of purposeful availment is deliberate, intentional, and conscious targeting of the forum state by
f. (Foreseeability) World-Wide Volkswagen
i. Facts: World-Wide Volkswagen is a distributor of cars bought by Plaintiffs. Car was involved in accident
in OK. Plaintiffs sued in OK.
ii. Rule: A state court may exercise personal jurisdiction over a nonresident Defendant only so long as there
exist minimum contacts between the Defendant and the forum State.
1. The foreseeability that is critical to due process analysis is not the mere likelihood that a product
will find its way into the forum state. Rather, it is that the Defendants conduct and connection
with the forum State are such that he should reasonably anticipate litigating there.
2. Mere unilateral activity of those who claim some relationship with a nonresident Defendant
cannot satisfy the requirement of contact with the forum state. like Hanson case
iii. Holding: World-Wide Volkswagen is not amenable to suit in OK. (No PJ)
iv. Dissent: Policy implications based on accident in OK, and fairness to Robinsons bc they moved to OK so it
is hard to litigate in NY.
g. (Fairness)
i. Ashai fairness factors:
1. Burden on the
2. The interests of the forum state in the litigation
3. The interests of the in litigating the matter in that state
4. Interstate efficiency
5. Interstate policy interests
7. Keeton v. Hustler Magazine Intentional tort
a. Plaintiff sued Magazine in New Hampshire because it was the only State in which her action would not be barred by
statute of limitations. (Magazine is circulated nationwide.)
b. The Court upheld personal jurisdiction not only as to her injury suffered in New Hampshire, but also for her injury
suffered in all other states as a result of the copies that were distributed there, but only for related claims.
i. specific jurisidiction
c. Plaintiff is not required to have minimum contacts with the forum state before permitting the state to assert PJ over a
8. Calder v. Jones Intentional tort
a. CA citizen sued about an article in the National Inquirer (which is widely distributed in CA) for defamation. Both
the writer and editor were citizens of Fl. Neither traveled to CA to write article. Article was written and edited in Fl.
Court upheld personal jurisdiction in the writer and the editor. Jurisdiction was proper in California based on the
effects of the Florida conduct in CA. their intentional, and allegedly tortious, actions were expressly aimed at
9. Burger King Corp. v. Rudzewicz
a. Facts: Defendant entered into a franchise contract with Burger King. Burger King (headquartered in Fl) is suing to
recover back payments.
b. Rule: minimum contact + fairness factors
i. Physical presence
1. Jurisdiction may not be avoided merely because the Defendant did not physically enter the forum
State, so long as a commercial actors efforts are purposefully directed towards Burger King
Headquartered in FL (a diff state)
ii. Fairness Factors
1. Once it has been decided that a Defendant purposefully established minimum contacts within the
forum State, these contacts may be considered in light of other factors to determine whether the
assertion of personal jurisdiction would comport with fair play and substantial justice.
2. Defendant must present a compelling case that the presence of some other considerations would
render jurisdiction unreasonable.
3. FACTORS: see holding for some analysis
1) burden on the Defendant to the extent that it would be fundamentally unfair
2) forum States interest in adjudicating the dispute
3) Plaintiffs interest in obtaining convenient and effective relief
4) interstate judicial systems interest in obtaining the most efficient resolution of
5) shared interest of the several States in furthering fundamental substantive social polices
c. Holding: Court says Rudzewicz is amenable to suit.
i. Contacts:
1. voluntary assumption of a contract with a FL company (not dispositive)
1) Court says this is an intermediate step serving to tie up prior business negotiations with
future consequences which themselves are the real object of the business transaction
(and must be evaluated for minimum contact purposes)
2. terms of contract says (1) FL applies, (2) Payment is due in FL fair notice of suit in FL
3. worked a lot with headquarters in Miami
d. 4(k)(1)(A): serving a summons or filing a waiver of service establishes PJ over a who is subject to the
jurisdiction of a court of general jurisdiction in the state where th district court is located.

10. Long-Arm Statutes

a. Purpose: reach out of the state to call nonresident s back into the state to defend lawsuits.
b. Enumerated:
i. State statutes that authorize the courts to exercise jurisdiction over Defendants based on specific types of
contact with the forum State.
1. Examples:
1) committing a tortious act within the state
2) transacting business in the state
3) owning property in the state
c. All long-arm statutes that based personal jurisdiction on specific enumerated acts require that the claim sued upon
arise out of the act itself!!!!!
d. Two-Step Analysis = Long arm + DP
i. Is there a state statute that authorizes the state court to exercise personal jurisdiction under the
circumstances of the case? (almost always yes)
ii. If there is a statute, would it be constitutional to exercise personal jurisdiction over the defendant? (14th
amendment/real analysis)
1. minimum contacts + fairness factor analysis
***When a has a choice in jurisdictions bc the meets more than one what might the want to consider?
Choice of law settles conflicts of law by stating which state rules govern

General Personal Jurisdiction Jurisdiction arising when a persons continuous and systematic contacts with the forum state enable
the forum states courts to adjudicate a claim against the person, even when the claim is not related to the persons contacts with the
forum state (Far end of sliding spectrum)
at home
1) Goodyear
a. Facts: Brown's () son was killed in a bus accident in France caused by a defective tire manufactured by a foreign
subsidiary of Goodyear (), and Brown brought suit in North Carolina.
b. Issue: Are foreign subsidiaries of a US parent corporation amenable to suit in state court on claims unrelated to any
activity of the subsidiaries in the forum State?
c. Rule:
i. General Jurisdiction
1. A court may assert general jurisdiction over foreign corporations to hear any and all claims against
them when their affiliations with the State are so continuous and systematic as to render them
essentially at home in the forum State.
a. Continuous-and-systematic contacts test Goodyear subsidiaries do not have
contacts in NC and no affirmative action to have their tires shipped to NC
2. Interest in providing a forum for Plaintiff is not weighed (States interest in protecting citizens)
based on Defendants relationship to forum
a. only in specific jurisdiction could this potentially strengthen the case (fairness factors)
ii. Specific Jurisdiction
1. Depends on an affiliation between the forum and the underlying controversy, principally, activity
or an occurrence that takes place in the forum State and is therefore subject to the States
2. confined to adjudication of issues deriving from, or connected with, the very controversy that
establishes jurisdiction
a. Bus accident occurred in France and the tire alleged to have caused the accident was
manufactured and sold abroad no specific jurisdiction here (tires not sold in U.S.)
d. Holding: Court measured against wide gap between Perkins and Helicopteros. It held that Goodyear is in no sense
at home in North Carolina. No general jurisdiction, lacked continuous and systematic contacts w/in the state of
N.C. Court
2) Perkins
a. During WWII, company relocated from Philippines to Ohio and maintained an office there keeping company files
and supervising the company from the Ohio office. Yes General Jurisdiction
b. 100% of business operations take place in forum State
3) Helicopteros
a. US citizens died in helicopter crash in Peru instituted wrongful death action in Texas state court. The Columbian
corporation had no place of business in Texas and was not licensed to do business there. Purchased helicopters,
equipment, and training services for substantial sums in Texas No General Jurisdiction
i. Rule: mere purchases in the forum State, even if occurring at regular intervals are not enough to warrant a
States assertion of general jurisdiction
4) Traditional Bases for General Jurisdiction
a. domicile
b. principle place of business
c. consent
i. appointing an agent for service of process within the State
ii. conduct in litigation (passively, not objecting)
iii. by sanction of the court
iv. contracting to litigate only in a designated forum
1. not dispositive Court must decide whether to enforce contract
d. transient presence (tag jurisdiction) (Gotcha!)
i. Defendant was physically in the State when served with process. Burnham
1. Facts: was served when he went to visit kids in Ca. At the time he was undergoing a divorce
(from NJ). Ms. Burnham filed divorce in Cali custody of children
2. Issue: Is service of process enough to be constitutionally amenable to suit in Cali?
a. Yes, transient jdxn was constitutional notion of fair play and justice
b. Justice Brennan thinks Tagging gives minimum contact but also need fairness factors
(Prof Eichhorn and other justices do not agree)
e. Continuous or substantial in-state contacts

Challenging Personal Jurisdiction Defendants objection to the exercise of personal jurisdiction over him 12(b), (g), & (h)
1) Defendants first option is to appear in the original action at the beginning of the suit and object to the courts exercise of
jurisdiction over her. (Direct Attack)
a. special appearance (common law)
i. Defendant is allowed to appear before the court at the beginning of the action for the sole purpose of
challenging its power to exercise personal jurisdiction over her
ii. If the Defendant is careful to appear specially, she may litigate the jurisdictional question without
submitting to jurisdiction by the very act of appearing before the court.
iii. Defendant must exercise extreme care not to raise any other issue court may construe as a defense
on the merits waived her jurisdictional question
b. Under the FRCP 12(b)(2)
i. Defendant may appear before answering to the merits of the complaint and object to personal jurisdiction
ii. unlike common law Defendant may also raise other objections at the same time, without waiving the
objection to personal jurisdiction.
1. Defendant can make 12(b)(6) motion at the same time which clearly goes to the merits of the
suit in common law rule, court would hold that the objection to personal jurisdiction has been
c. How the can appeal varies by jx. Some states make you go through the whole trial before you can appeal denial,
others let you appeal denial before moving on to trial.
2) The second option for the Defendant is to ignore the original suit entirely. very risky
a. Traditional procedure Plaintiff files a new action on the judgment in the state where the Defendant is
b. Some states The judgment creditor (Plaintiff) files a certified copy of the judgment in the state where the
Defendant is
i. Full Faith and Credit Clause requires the courts of each state to honor the judgments of other states by
allowing out-of-state creditors to use the court process to collect judgment
c. Exception the state where the Defendant is may always inquire as to whether the rendering state had jurisdiction
in the original action and refuse enforcement if it did not
i. Thus, if the Defendant ignores the first summons and complaint, he will still have an opportunity to protect
his property from being sold for execution of judgment.
1. Defendant can assert in the enforcement action in his State that the other State lacked personal
jurisdiction over him. Collateral Attack
2. Still, Full Faith and Credit Clause does not allow Defendant to reopen the merits of the underlying
action Therefore, if the Defendants state decides that the other State had personal jurisdiction
over Defendant, it will automatically enforce the default judgment
a. The default judgment will be enforceable in any state.
b. vice versa
i. If the Defendants state decides that the other State did not have personal
jurisdiction over Defandant Plaintiff is barred from relitigating the
jurisdiction issue in any other State Collateral Estoppel
1. Full Faith and Credit honoring the holding of the court that reached
the jurisdictional issue
d. Exception Defendant may not challenge personal jurisdiction in the enforcement action if he has already done so
in the original action. (This includes waiving the challenge in the original action by consent, arguing the merits, etc.)
i. Exception to the Exception Most states allow the Defendant, after raising the jurisdictional objection
and losing, to take the safer course of defending the merits and then appealing the decision on jurisdiction.
1. Few states Defendant waives the jurisdictional objection by defending the case on their merits.
common law special appearance
a. theory inconsistent for Defendant to appear and litigate in that court and at the same
time claim that the court lacks jurisdiction over her
Other Issues Affecting Choice of Court

Venue If a case is in the right federal/state court system, is it also in an appropriate court within that system?
1) Venue rules are meant to further restrict the places where the Plaintiff may choose to bring suit, to assure that suits are tried
in a place that bears some sensible relationship to the claims asserted or to the parties to the action.
2) States have their own venue rules the ones set out below (FRCP) are for the federal courts
3) BASICALLYrequire that the s sued in a district where the reside or where important events relevant to the suit took place
4) Purpose of venue:
a. Overall efficiency direct litigation to a place w/some relation to lawsuit
b. Added protection for defending party
1) Limits where can file suit
2) Domicile of is one of the acceptable venue choices (not based on constitutional consideration/lower than
constitutional fairness)
5) Waivable defense under 12(b)
a. Defendant waives by failing to raise it when she responds to the Plaintiffs complaint
6) Forum Selection Clauses in Contracts
a. parties agree in advance to a particular venue for suits that may arise between them
b. generally have been held enforceable in the federal courts, even if the selected venue would not be proper under this
7) Choice of Law:
a. See below in venue transfer section.
8) Venue applies to WHOLE action (not just 1 claim)
9) 28 U.S.C. 1391
a. 1391(b) sets forth the basic options for venue in most federal cases; operative provision focuses on judicial
districts; not on states (If b1 doesnt apply b2 then b3 last)
1) (b)(1) subject to venue in district where any of the Defendants reside, if they all reside in the same
1. only use if all s in the same state
2) (b)(2) district where substantial part of the events occurred or where substantial part of property is
1. Ex: products liability case (1) where the product was manufactured (2) location of injury
3) (b)(3) is available only if there is no district that is a proper venue under either (b)(1) or (b)(2)
1. must find a district in which any one of the Defendants is subject to personal jurisdiction

b. 1391(c) defines the residence of individuals for (b)(1)

1) domicile
1. where Defendant actually lives
a. use the domicile test for citizenship for diversity jurisdiction
2. takes care of subject matter and personal jurisdiction
2) any district in which Defendant is subject to personal jurisdiction
3) foreign Defendants may be sued in any judicial district
1. disregard foreign Defendants when joined with other Defendants
2. foreigner may be sued in any district anywhere but PJ and SMJ must be satisfied

c. 1391(d) defines the residence of corporations for (b)(1)

1) residence = any district in which the personal jurisdiction analysis would suffice as it does for States
1. General Jurisdiction
a. District of incorporation
b. District of principal place of business headquarters
2. Specific Jurisdiction
a. District where there are minimum contacts from which the claim arises

10) Applicability of Section Except otherwise as provided by law ( 1391(a))

a. There are Specialized Venue Provisions (statues) that restrict venue many types of claims
1) when and where does it apply in fed cts

11) Removal Venue provisions in 1391 do not apply to actions removed to federal court!!!
a. Removal The proper venue for a removed action is the district and division embracing the place where such
action is pending in state court.

12) 1404 Change in Venue (challenging the place, not the law)
a. When the original venue was proper (a valid choice), but Defendant feels that venue is not fair or convenient and
wants to transfer to another district that would be equally proper
1) In the interest of justice and overall convenience, Defendant can request transfer
1. may be due to burden or expense
2. Defendant is an outsider
b. Where can cases be transferred?
1) 1404(a) to any district where suit might have been brought
c. The law of the current district will travel to the new venue!!!
1) Apply same substantive law transferor court would have applied (unless transfer was to enforce a
forum selection clause)
d. Atlantic Marine
1) Facts: Contract had a forum selection clause. Plaintiff brought suit in a federal district that was proper,
but was not the one named in the clause. Defendant moved to dismiss or transfer (in the alternative).
2) Issue: Does the forum selection clause make this a 1404 or 1406 case?
3) Holding: Court held that contracts are irrelevant to the question of an improper venue. Defendant can
move to transfer under 1404.
1. Court should give controlling weight to forum selection clause (should be enforced) but dont
necessarily have to enforce it.

13) 1406 Cure or Waiver of Defects

a. Original venue is improper defect to be cured
b. Court has discretion, can:
1) Dismiss (for Plaintiff to refile)
2) Transfer to a location where case could have been filed (i.e. if agreed upon in K)
c. The law of the current district does not travel to the new venue!!!!!
1) Apply choice of law rules of transferee state (because original venue wasnt right, you shouldnt
apply the improper distrcits law)

14) Choice of Law: each state has own choice of law doctrine; which state rules govern?
a. Rule 1: federal ct in diversity action applies choice of of law rules of the state in which it sits
1) Rules dictate whole law applies
b. Rule 2: 1404(a) transfer, transfer is simply change of courtroom so dont change law applied
c. Rule 3: 1406 use transferee law bc not supposed to be there

Forum Non Conveniens If the court is technically proper but it is burdensome for the to litigate there, may the get a dismissal?
A federal procedural common law doctrine (not statutory)
allows court to dismiss bc burdensome for to litigate there even though the venue is technically proper
predates 1404 & 1406 (now we dont really have to use this because you can use 1404&1406 to transfer without dismissing)
still applies in certain situations
i.e. foreign parties, heavy burden, intersystem dismissals and refilings
if youre in state court, but it would make logical sense for it to be heard within another state
The Court may, in the exercise of its sound discretion dismiss the case. (Usually after this happens, cases settle)
Piper Aircraft Co v. Reyno
Facts: The estates of Scottish citizens brought a wrongful death suit against Piper a/c in Pennsylvania federal court as a
result of an airplane crash in Scotland.
Issue: May a court dismiss a case if an alternate forum has jurisdiction to hear the case and litigating in the present forum
would be overly burdensome to the and the court system, even though the law of the alternate forum is less favorable to
the ?
Holding: Yes, under the doctrine of FNC, a court may dismiss a case if there is an alternate forum with jurisdiction and if
proceeding forum would impose a heavy burden on the parties in the court.
o Court must consider various private and public interest factors in addition to the s choice of venue.
Analysis of factors: In this case, the private interests of the parties weigh in favor of trial in Scotland because most of the
evidence and witnesses are located in Scotland and the defendants could more easily add third parties and claims to the
lawsuit, which would not be feasible in Pennsylvania. Similarly, public interest factors also point to suit in Scotland
because the claims in Pennsylvania would involve application of Scottish law to Piper Aircraft (1) and Pennsylvania
law to Hartzell (parts manufacturer) (2), which would confuse to the jury. Additionally, Scotland had a strong interest
in the outcome of the litigation, as the real parties in Interest were Scottish and the events occurred within its airspace.
Because these private and public interests establish the Scottish courts as the more convenient forum, the district court
did not abuse its discretion in granting the dismissal.
What does the court consider?
o Factors
o There has to be a specific alternative forum
Balancing Test
o Private Interest Factors (between parties)
choice (master of the claim)
Access to evidence and ability to subpoena witnesses
ability to implead others
other factors creating burdens for the
If the isnt from the forum state/country
o Public Interest Factors Does the local have an interest in this particular suit
Familiarity with substantive law Does the Court have to study up on foreign law? Experts are
appointed to educate the court, but this process is burdensome and costs money.
floodgate of cases (ct congestion)
local interests need some interest in the situation if were going to use up rescources to litigate
Jury confusion unnecessary complexity for jurors b/c of multiple standards that they must apply to
the facts
****Difference in the substantive law cannot change the analysis (should not factor in), unless the alternative forum is so
inadequate or the cause of action is not recognized (no remedy) for the Plaintiff.
****Forum selection clauses in contracts only looks at the public interest factors and cannot look at private interest
(negotiated out)

How do parties know which law governs their cases?

Applicable Law

Erie Doctrine: How does a party know whether state or federal law governs its DIVERSITY claim in federal court?
There is no general federal common law after Erie
Federal courts apply the substantive law of the forum state in which the federal court is sititng.
Any federal case by diversity or supplemental state law
o State law based on choice of law rules for state in which it sits
o Judges job is to apply the substantive law that would have bene applied in the state court had it been heard there

History & Interpretation of the Rules of Decision Act:

o RDA 28 USC 1652 The laws of the several states, except where the Constitution, treatises or statutes of the
US shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of
the US, in cases where they apply.
o Swift v. Tyson laws of the several states refers only to the statutes. If there was no state statute (common law)
then federal judge had freedom to use discretion
Problems w/ Swift:
Allowed s to forum shop, verticle forum shopping, where could pick based on favorable
substantive law
Discrimination between citizens & noncitizens
Constitutional problems: federal governemtn was making law in areas that the constitution has
reserved for the states
o Erie Railroad v. Tompkins In diversity cases, federal courts must apply ALL the law (common law, statutes,
local usages) that would be applied by the courts of the state in which they sit.
Rather than create general (federal) common law, the court must apply state common law.
It didnt overturn the RDA, it just changed the way in which the RDA was interpreted
Why the Erie Doctrine is good policy?
o Evens out unfair differences between diverse s who could shop and non-diverse parties that couldnt
o Stopped violating the 10th amendment
What if no precedent in state? Or old? or muddled? Or novel?
o Two options:
o federal judge has a duty to predict, make an educated guess as to how states highest ct would decide
look @ other state high courts
look @ lower ct decisions w/in same state
look @ fed supreme ct
developing trends in law
o federal ct can send certified question (altho not mandatory the state supreme ct answer)
Not mandatory UNLESS if no controlling precedent and can be determinative for outcome of case
Problems: lengthy and expensive litigation; fed cts determining state Supreme Courts workload
A party did not like the outcome of the litigation. May he or she try again?
Former Adjudication Doctrines

Res Judicata (claim preclusion): When is a party barred from re-litigating a specific claim?
Disallows efforts of a party to re-litigate events that have already been litigated and decided in a prior suit
claim preclusion an affirmative defense
o The says even if you prove it I have a separate and independent reason why I cant be held liable
Defendant could:
o answer complaint (must do an investigation of the claims) raising res judicata
o just make summary judgment or partial summary judgment (more efficient)

Elements of Res Judicata No repeat litigation of claim if:

1. There was a final judgment (includes dismissals and summary judgment)
2. Final judgment was on the merits(with prejudice) 12(b)(6)
not a procedural issue. Refers to the substantive law or lack of all elements met
3. Same claim
same transaction or occurrence
use joinder rules
4. Same parties
one claimants right to relief from one other party

What can an unhappy do?

Appeal (if allowed, normally dont appeal on factual issues)
Rule 50 (JNOV)
Rule 60 (Relief from Judgment)

*this doctrine does have some variation by jx b/c this is a common law doctrine
ex: in some states a 12(b)(6) motion is considered a final jmt, in other states its not.

Collateral Estoppel (Issue Preclusion): When is a party barred from re-litigating a specific issue?
Dissects a lawsuit into its various issues and surgically removes from consideration any that have been properly decided in a
prior action
issue preclusion can be used by defendant as a defense, but can also be used by a Plaintiff (to not be required to provide
evidence on some issue at trial)
o How does a claimant (usu. a Plaintiff) use this? Does not have to re-litigate issues already proven can make a
partial summary judgment motion for issues based on collateral estoppel

Elements Repeat litigation of issue if:

1. same issue
2. actually litigated
3. actually decided
4. necessary for the judgment (determine outcome of case)
why is it necessary? Might not be given as much care to issue and the decision if not necessary