Civil Procedure Outline

Prof Oldfather … Spring 2006

I. An Overview of Civil Procedure

A. The Idea & Practice

Focus on the procedural law = laws that govern resolving disputes in civil litigation
The process of applying civil law
Legal system assumes that lawyers & clients have identical goals.
- Tension exists bc they do not have identical goals attys can be sloppy
and clients can behave poorly… who bears the burden for a mistake? (1)
client – will sue the atty in a malpractice suit; (2) the opposing party – will
have wasted time and effort; (3) give & take from both sides.

B. Where Suit can be Brought

 Factors to determine state or federal? Convenience, tactics, political
pressure on judges, & fed cts have less of a load so faster.
 Subject Matter Jurisdiction: whether a court has power to hear a suit.
- Question of where: small claims ct, family ct
- Depends on nature of the claim and the citizenship of the parties
- For a federal suit:
˙ Involves a federal law
˙ Diversity Jurisdiction: citizens of different states & above a monetary
limit
- 2 types of jurisdiction:
˙ General Jurisdiction: can hear any claim unless there is a legal
authority saying “no”. (all states have at least 1 general jurisdictional
ct).
˙ Limited Jurisdiction: court can only hear those cases that are specially
authorized by statutes that set up the court. (all federal courts are
limited jurisdiction bc of the US Const).
 Personal Jurisdiction: Suit can only be brought in a state where the ∆ is subject to
the state’ power to render a judgment against the ∆ . Applies to both state and
federal cts. (basic: where ∆ lives)
 Venue: the proper or appropriate place for the trial of a case. For
proper/appropriate: ct needs subject matter & personal jurisdiction.
- USC § 1391: Venue: Civil actions may only be brought where ∆
resides, a judicial district where a substantial part of the events occurred, or
a judicial district where the ∆ is subject to personal jurisdiction at the time
the action is started. (FRCP p326)
 Service of Process: Must notify ∆
- Draft complaint
- File a copy of complaint
- Notify ∆ : Waiver of Service or Summons

C. Stating the Case

 Complaint: asks the formal legal system to use governmental power to grant relief.
Attys bear responsibility not to invoke system for improper purposes.
- Bridges v. Diesel: atty violated Rule 11b: failure to exhaust
administrative options. No sanction bc Rule 11c: the court “may” impose
sanctions
 - Bell v. Novick: Rule 8a2: short & plain statement on complaint …
don’t have to tell specifics, but Rule 11: ¶ needs to know specifics and have
a legitimate basis for claim.
Responses to Complaint: pre-answer, answer
- Pre-answer Motions: requests to the t that it do something to
end/alter case bc of jurisdiction, method, demur, or vagueness
o R12b(1)-(5): “not here”: not the correct place for dispute
o R 12b(6): “so what?”: failure to state a claim
o R 12e: “Huh?”: vague, need a more definite statement
- Answer: responds to the allegations in the complaint
o “It’s not true”: denial of 1/more alleges in complaint. Can
deny even if unsure of the truth
o “Yeah but”: Affirmative Defense
o “It wasn’t me”: 3rd party or cross claim: someone else is
responsible.
 Cross Claim: assert a claim against another ∆ when the ¶
sues multiple ∆ s out of same transaction. Rule 13g: Cross
claims have to be germane.
 Third Party claim: ∆ asserts claim against a new party.
R 14: ∆ can file a 3rd Party claim against any party that is
liable to ∆ for ¶‘s claim against ∆ .
o “Well I’ve got a gripe of my own”: Counter claim: doesn’t have
to be germane to initial lawsuit.
 Compulsory Counterclaim: R 13a: A counterclaim that
must be asserted bc it related to the opposing party’s
claim and arises out of the same subject matter. If a ∆
fails to bring a compulsory cc, claim is exhausted.
 Permissive Counterclaim: R 13b: A counterclaim that need
not be asserted bc it does not arise out of the same
subject matter as the opposing party’s claim or involves 3rd
parties over which the ct dos not have jurisdiction. Can be
brought later in a separate action.

D. Parties to the Lawsuit

Joinder the uniting of parties into 1 suit
- Permissive Joinder: the optional joinder of parties if their claims
asserted against them are asserted jointly, severally, or in respect of the same
transaction and there is a common legal/factual question to all.
o Bridgeview v. 11c Music: R20a: all persons may be joined who
have the same transaction. Ct held that the transactions were all
separate transactions & broke up class action suit into 477 separate
suits.
- Compulsory Joinder: the necessary joinder of a party if in the party’s
absence, those in the suit cannot receive complete relief or in the absence of a
party might impair the protection of an interest in the subject of an action and
might leave some other party subject to multiple or inconsistent obligations. (R
19)
 Intervention: the entry into a lawsuit by a 3rd party who, despite not being
named a party to the action, has a personal stake in the outcome. The outcome must
have a substantial effect on them. Competing interest: if outsider is let in, will get a
voice and could interfere with the autonomy of original parties—especially the ¶‘s
autonomy.

E. Discovery
Info changes and evolves, so need to gather info both informally & formally

2
 Lots of toom for strategy
5 Means of discovery:
- Disclosures: must reveal certain info w/out being asked (names, basic
docs, basis for damages)
- Request for Production of Documents: records, letters, emails,
photos, etc. (R 34 from opposing party & R 45 to subpoena from 3rd party)
- Oral depositions
- Written Interrogatories
- Phys & Mental Examinations
 Butler v. Rigby: patient/doctor privilege. Other privileges: spouse,
religious.
F. Summary Judgment
 Summary Judgment: a judgment granted on a claim about which there is
no genuine issue of material fact and upon which the movant is entitled to prevail as a
matter of law.
 Mechanism for weeding out claims where there is no genuine issue of
material fact.
 Key question: in viewing the evidence most favorably to the ¶, is ther a
rational basis for jury to conclude for ¶? (don’t even think about ∆ ’s info)
 R 56
Houchens v. American Home Assurance Co.: can’t pile inferences on inferences.
Other methods for pre-trial disposition:
- Default judgment: judgment entered ag a ∆ who failed to plead or
defend against ¶‘s claim. Usually a no-show at trial: R 55: default judgm ag ∆ .
- Dismissal: termination of claim without further hearing if ¶ does not
obey an order of the court during proceedings… R 41b
- Voluntary Dismissal: ¶ dismissal at own request or by stipulation of all
the parties. R 41a.

G. Trial
 Date  Jury selection  opening statement(s)  ¶ case-in-chief  ∆ case  Rebuttals
 Closing args  Jury Instructions  Jury deliberations  Verdict  w/in 10 days:
loser can move for a judgment as a matter of law, new trial, or both.
 Judgment notwithstanding the verdict: a judgment entered for one party even though
jury verdict was for the opposing party
- Norton v. Snapper Power: Judge enters a JNOV bc no reas person/jury
could conclude in favor of ¶. Apl Ct disagrees and enters jury’s verdict.

Judgment as a matter of
law
SJ before trial.
DV: during trial
JNOV after trial.

H. Former Adjudication
 2nd lawsuit with same facts but no double jeopardy.
 Former Adjudication (Res judicata): an issue that has definitely been
settled by judicial decision
- Claim preclusion: The first claim settled precludes another claim.
Claim must be same in both actions
- Issue preclusion: The binding effect of a judgment as to matters
actually litigated and determined in 1 action on a later controversy btwn parties
involving a different claim but based on the original judgment.
- Rush v. Maple Heights:
o Claim preclusion: can’t re-litigate same cause of action.

3
 o Issue preclusion: any issue that was actually litigated in 1
action can’t be re-litigated
Separate people can have separate claims

I. Appeals
 Appeals only address the correctness of trials court rulings – not the atty’s mistakes
 Appeal only final decisions
 Interlocutory Appeal: appeal a motion. Only available in some states.
 Apex v. Leader: a decision on a discovery judgment is not appealable.

II. Process of Litigation

A. Incentives to Litigate
 Debate over whether there is too much litigation. Are there inconsequential
lawsuits? Maybe not, but fear of lawsuits is prevelant.
 Remedies are the goal of initiating a lawsuit. “What” remedy depends on the type
of litigation.
 3 types of remedies
- Substitutionary
- Specific
- Declaratory.

B. Substitutionary Remedies: remedies other than those designed to get specific thing back.
(e.g., damages, attempts to restore)
Compensatory: “actual” damages to try to make ¶ whole
- Ks: usually can only recover “expectation” damages limited by
doctrine of foreseeability
- Can include real and non-economic (pain & suffering) damages
- Problematic: sometimes injury has no market value, no recoup for
litigation costs
- Lawsuits take time, time = $, so cts will add interet on to damage
amnts. Either prejudgment or postjudgment.
 Liquidated: an amnt contractually stipulated as a reasonable estimation of actual
damages to be recovered if the other party breaches
- Difficult bc actual ds may be hard to calculate; actual ds may be hard
to prove; inconvenient/nonfeasible to otherwise obtain an adequate remedy.
- Most common in K cases.
 Statutory: Statutes that set minimum damages not specifically tied to the amnt
suffered
- Ex. Copyright Act: gives ¶s a choice btwn proving lost profits (v. hard)
or accepting statutory damages.
- Good for offsetting costs of litigation over small but important
matters (ex. Bad check statutes).
 Punitive Damages: aim to punish, deter.
- Only available in extreme cases.
- Critics: wildly unpredictable and is an exception to the rule that
damages serve only to compensate the ¶.
- Campbell v. State Farm: Utah went outside its jurisdiction in
punishing State Farm, Degree: should be a single digit multiplier, look to civil

4
 and criminal penalties for similar acts.

C. Specific Remedies: ct order to do (refrain from) something.

 Specific Performance: a court-ordered remedy that requires precise fulfillment of a
legal or contractual obligation when $$ damages are inappropriate or
inadequate.
 Replevlin: An action for the repossession of personal property wrongfully taken or
detained by the ∆ .
 Injunction: A court order commanding or preventing an action (usually to ∆ ).
- Requirement for Injuction
o Establish that d’s would be inadequate (not impossible to calc)
o Balance the hardships in issuing an injuction
 History: From the English legal system: Court of Chancery (ct of equity) & Courts of
Common Law (Ct of Law). See R 1.
 Debate if equitable remedies are preferred to substitutionary.
 Sigma v. Harris: Injuction bc legal remedies would be inadequate to protect
confidential information. Would otherwise be irreparable harm.
D. Declaratory Relief: a binding judgment that establishes rights and other legal relations of
the parties without providing for or ordering enforcement (R 57)
 For legal problems that neither damages nor specific remedy can solve. A basic
statement that I’ve been wronged & you wronged me.
 Still need a case/controversy

E. Provisional Remedies: temporary, equitable remedy available to a party while the action is
pending. Can be problematic bc judge makes decision with incomplete info bc before
trial.
 Preliminary Injunctions & TROs
- Inglis & Sons v. ITT: 2 Tests for Prelim injunctions:
o Test 1: ¶ is entitled to a prelim injunction if court finds:
 ¶ will suffer an irreparable injury if
injunction not granted
A type of specific  ¶ will probably prevail on the merits
performance  In balancing the equities, ∆ will not be
harmed more than ¶ is helped by injunction
 Granting the injunction is in the public
interest

o Test 2: Balancing test:

 One moving for a prelim injunction has
Ct the burden of demonstrating either a combination of
adopts probable success and the possibility of irreparable -- or –
that serious questions are raised and the balance of
hardships tips sharply in her favor.
R 65a: Prelim injunctions
o R 65a2: Temp. Restraining Order:
immediate, without notice, a preliminary prelim injunction. Go to
court w/out ∆ , w/out ∆ knowing to ask for an order to prevent ∆
from doing something.
TRO  Preliminary Injunction  Trial (permanent inj)
Formality of process
Public interest must be considered.
Other processes for provisional monetary relief
o Attachment: involves seizure of property
o Garnishment: ask a 3rd party not to pay ∆ $ bc ¶ has a claim on it.
Provisional Remedies & Due Process

5
- Due Process = Notice + Opportunity of hearing
o Exceptions: Secure government interest, special need for prompt action, officer of state is
involved in determ.
- Problem for Provisional Remedies bc want to move very fast, before
the other side knows (e.g. drugs, domestic violence)
- Fuentes v. Shevin: FL Writ of replevlin was a violation of 14th A, DPC.
Situations for postponing notice & hearing:
o Seizure is direct necessary to secure an important gov /
general public interest
o Special need for very prompt action
o State keeps strict control over its monopoly of seizing in that
the person initiating the seizure must be a gov official.
- Parties can waive their rights
- 3 factors that determine whether an individual has received due process:
o Private interest that will be affected by the official interest
o The risk of an erroneous deprivation of such interest through
the procedures used
o The Gov’s interest including the function involved and the
fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.

III. Pleading

A. The Story of Pleading

Telling Stories
- Pleading: A formal document in which a party to a legal proceeding sets forth or responds to
allegations, claims, denials, or defenses.
- The Complaint: Rule 8(a)
o Responsive
Short & plain statement on jurisdiction
o Pleading
Short = statement of claim
& plain
Answer
o Demand for judgment/relief
- Purpose: notice to the opposing party: notice of events & notice of
the legal right the ¶ asserts
- Idea: allow ¶ to proceed to discovery, unless it appears beyond a
doubt that the ¶ can prove no supporting facts to claim that would give ¶
relief.
- Exception: Rule 9(b): in cases of fraud or mistake, claims will be
stated with “particularity”. That’s heightened pleading!
- A complaint may suffice even if it does not allege all elements of a
cause of action
o Ex: Negligence complaint: court & ∆ may be OK if ¶ does not
specifically allege all neglg elements (duty, breach, cause, d’s)
- Also ¶ does not need to allege or spell out every fact / exact conduct
that was negligent.
- Judges have discretion on how much leeway.
- But ¶ should watch for Rule 11 or 12: if ¶ has not alleged an element
and ∆ doubts that the ¶ has grounds, ∆ could motion to dismiss.
- Relationship btwn Rule 8 & 11:
o Rule 8: complaint need only have “bare allegations”
o Rule 11 requires atty to have investigated and have
evidentiary support for factual allegations.
o From the ¶‘s standpoint, when atty signs complaint, atty is
supposed to have done all the investigation necessary to
support complaint. But atty doesn’t need to put that research

6
 into complaint! Therefore, there might be a tendency on the
part of the ¶ atty to cut corners and ultimately violate Rule 11.

The Functions of Pleading

- 2 kinds of common law responses to allegations:
- These are all now found in Rule 12 b (1)-(5)
Dilatory Pleas Preemptory pleas
(responses that delay suit, but don’t address merits of case) (grapple with legal & factual merits of a claim)
Challenges to jurisdiction Demurrer:
“not here” conceded the truth of allegations, but questioned
their legal sufficiency “so what?”
Pleas in suspension: Traverse:
challenged ¶‘s right to bring action until some Conceded the legal sufficiency but denied the factual
problem was solved “not now” allegations as true. “not true”
Pleas in Abatement: Confession & Avoidance
challenged various other procedural defects in the Conceded the truth of facts and the legal sufficiency
complaint. (e.g. spelling, another claim btwn parties) but alleged different facts that changed their
“not until defect has been solved.” significance. “yes but”
Now: Now:
Rule 12 (b)(1)-(5) Demurrer = Rule 12b6
Traverse = 8b (defense)
Confession & Avoid. = Rule 8c (affirmative defense)

- Rule 12 b (6): ¶ has failed to state a claim upon which relief may be
granted
o Key: court must assume that all of the factual allegations of
complaint are true.
- Modern pleading fulfills 3 functions:
o Quickly eliminates cases that sugger from significant
procedural defects using:
 12 b1: lack of jurisdiction over the subject matter
 12 b3: improper venue
 12 b4: insufficiency of process
 12 b5: insufficiency of service of process
 12 b7: failure to join a party under Rule 19
o Shapes the discovery process
o Can eliminate a claim entirely
 12 b6: failure to state a claim upon which relief can be
granted.
· Risky bc so early
- A bad complaint can be cured through amendment process if the ct
grants it, and if atty can honestly & ethically alter it so that it will withstand a
2nd motion to dismiss.
- Haddle v. Garrison
o Distinction btwn fact & law is gray: events have a legal
significance.
o If parties disagree about...
 What happened ... Summary Judgment
· Given everything that ¶ has shown, no
reasonable fact finder could find for ¶
 Legal significance of same facts ... R 12b6
· Given all of ¶s facts are true, ¶ does not have a claim.
· No fact-finder needed.
o Legal conclusion is law
- Consistency in Pleading: Rule 8e2

7
 o A party may set forth 2 or more statements of a claim or
defense alternately/ hypothetically
o A party may also state as many separate claims or defenses
as he has regardless of consistency
o Reason:
 Pleadings are early, so early that parties may not know
everything that they will at trial/settlement
 Allegations in pleadings are tempered by proof
 Eventually, party will have to settle on a single set of facts
to go on
Ethical Limitations
- Rule 11: Regulates attorney & client conduct
o Makes standards immediately relevant
o Establishes an interlocking set of standards, procedures, &
sanctions, a mini-regulatory regime that affects but does not directly
regulate the entire conduct of litigation
o 11a: signature w phone number & address of atty or pro se
litigant on all pleadings
o 11b: On all representations to court (signing, filing, submitting,
or later advocating a pleading or motion) signing party is certifying
that:
 There is no improper purpose
 Legal contentions are warranted and not frivolous
· Claim is either warranted under existing law, or
is asking for an extension, modification, or reversal
of existing law, or establishing new law.
· Basic: need a rational, reasonable argument.
 Have (or likely to have after discov) evidenciary support
· For likely to have evid support after discovery,
need:
 To have done enough investigation
 Need to be in a position to articulate why
can’t do addt’l investigation w/out
discovery
 Denials of facts are warranted on evidence or are based on
a lack of info/belief.
o 11b2a: clients aren’t responsible for atty’s error of law.
o 11 b3: A party could be sanctioned for making up facts.
o 11 c provides for sanctions either my a separate motion
(within 21 days) or by court’s own initiative.
 Required:
· Party has to create motion to sanction
· Serve it to other party
· Wait 21 days
· See if error is corrected
 Yes: Motion to sanction put away
 No: Present motion to sanction to ct.
· Ct has discretion whether or not to sanction
o Possible problem: gives unethical attys permission to throw
anything out there and see if ∆ catches it.
o To prevent back-door negotiations and overreaching,
professional rules prohibit lawyers from communicating directly with
a party represented by an atty, unless the atty consents.
Special Claims
- In contrast to Rule 8, some pleadings need to be more specific

8
 o Fraud or mistake: bc punitive damages (remedial purpose),
labeling behavior as deceitful, stigma,
o Need to say “why” in complaint.

B. Responding to the Complaint

3 options:
- Do nothing  default judgment against ∆
- Pre-answer motion: permits ∆ to raise certain types of objections to
the action at the earliest stage of litigation
- Answer: respond to complaint and assert any additional info or
affirmative claims
 Method:
- ∆ can receive complaint either by mail or in person. (See Rule 4d,
4c)
- Complaint will arrive with Summons form which tells ∆ to respond or
face a default judgment
- Atty will draw up pre-answer motion / answer in:
o Within 20 days after being served with the summons &
complaint; or
R 12a
o Within 60 days after the date when the request for waiver was
sent, if the summons has been timely waived; or
o Within 90 days for a ∆ with an address outside any judicial
district in the US
Pre-Answer Motion
- Rule 7b: Motions:
12 b motions: o Must be in writing, with specific relief sought
1. subject matter o Need notice of the motion to the other party
jurisd o Any info necessary for granting the motion,
2. personal jurisd
3. venue o Memo explaining with reference to the facts of the case and to
4. insufficiency of supporting authorities the basis for the motion
process (defect) - Pre-answer motions include:
5. insufficiency of
service of process
o Reasons why the court should not process
(defect
12 e in
motion: o Assertions that the complaint (even if true) provides no basis
method)
more definitive for relief sought.
6. failure/claim
statement o Denials
7. failure to join
o Affirmative Defenses
o Requests for clarification and/or more information
- If pre-answer motion is denied, then have 10 days to file an answer
Waiver
triggers
- If don’t make motions within time period, then ∆ waives them. (R
12 g & 12 h 12g, h)
o Except for jurisdiction – that’s whenever.

- Can combine pre-answer motions in the motion.

Dilatory Pleas Preemptory pleas

(responses that delay suit, but don’t address merits of case) (grapple with legal & factual merits of a claim)
Challenges to jurisdiction Demurrer:
“not here” conceded the truth of allegations, but questioned
Pleas in suspension: their legal sufficiency “so what?”
challenged ¶‘s right to bring action until some Now: 12b6
problem was solved “not now”
Pleas in Abatement:
challenged various other procedural defects in the
complaint. (e.g. spelling, another claim btwn parties)
“not until defect has been solved.”
Now:
Rule 12 (b)(1)-(5)
9
 Answer
- If ∆ cannot make a 12b motion, then must respond to its factual

Preemptory pleas
(grapple with legal & factual merits of a claim)
Traverse:
Conceded the legal sufficiency but denied the factual
allegations as true. “not true”
Confession & Avoidance
Conceded the truth of facts and the legal sufficiency
but alleged different facts that changed their
significance. “yes but”
Now:
Traverse = 8b (defense)
Confession & Avoid. = Rule 8c (affirmative defense)
allegations

- Denials:
o R 8b: Defenses
 ∆ shall admit or deny allegations in complaint
 If a party doesn’t know – then so state, and it will be treated
like a denial
 Admit: admit so much as it is true and then specifically or
generally deny the rest
 When a response is required and there is no response: effect
of an admission.
 When no requirements & no response: effect of a denial.
 General denial: careful! Only when you really deny everything
· Ineffective
 Have to admit the truth in complaint & answer
· Except if you don’t know  deny

- Affirmative Defenses

10
 o Line between factual denial & affirmative defense is blurry
 Affirm ∆ Best, but then ∆ has the burden.
o Need:
 Substantive claim ( list in 8c)
 If the party has mistaken an affirmative defense as a
counterclaim, the court will treat it as if the mistake were done
correctly (the court will switch it on its own)
 Reply
- If the answer has a counterclaim, then Rule 7a requires a reply
- A cautious atty will still reply even if it is an affirmative defense
- Reply should only be to the counterclaim
- Ct can order a reply on its own (rare)
 Amendments
- Pleadings are so preliminary that the arguments & facts may change
as the suit develops, particularly from discovery
R 15: - Common for parties to learn that their initial understanding of their
Leave to amend claims/defenses were wrong or incomplete.
shall be freely - Rule 15 governs between 2 goals: justice & prejudice
given when
o Justice = easy amendment so that pleadings can reflect
justice so
requires. parties’ changed view of the case
o Prejudice = Can’t burden the other side ... will be burdened if
story/argument continues to shift.
- Two types
o Amendments as a right
 All parties get 1 free shot at amending pleadings
 R 15a: can amend as a matter of course
· As a matter of course = without leave of court
or the consent of the adverse party
 Parties have the right to amend once
 The defending party only has a time limit: if their answer
‘closes’ pleadings, they have a right to amend once within 20
days after serving answer.
 If a pleading allows a responsive pleading, R 15a does not limit
amendments as a matter of course to 20 days.
· R 15a: allows 1 amendment as a right at any
time before a responsive pleading is filed
· Example: Complaint  Answer with
Counterclaim  Motion to dismiss counterclaim. Amend
answer? Yes bc a motion is not a responsive pleading, it is
a pre-answer motion. & no time limit, either, just have to
amend before an answer to the counterclaim is filed.
o Amendments with leave of court (judge’s permission / consent
of other party) R 15 a
 Most common type of amendment
 Time will have passed, so need to go to court or other party
for permission
 Courts goal = have trial reflect the true state of evidence and
not the parties’ initial understandings
 Leave to amend shall be freely given when justice so requires
· Presumption = amendments will be allowed so
that the issues framed for trial will reflect the parties’ fully
developed understanding of the case.
 Amendments are not always granted
· Common reason for denying amendment: it is
offered too late, when the opposing party will be unable to
develop the evidence or args to meet the new allegation.

11
 · As trial approaches, ct becomes less flexible.
Tension btwn 2 goals (justice & prejudice) increases.
 R 15 makes no distinction btwn factual & legal changes to the
pleadings.
- Statute of Limitations & R 15: Not a defense to amendments
o As long as ¶ got a complaint in before the statute of
limitations has passed, statute of limitations will not be a defense to
added or amended claims once statute of lims has passed.
o Amended complaint, containing the new claim, will be treated
as though it had been filed when the original complaint was filed.
o Statute of lims is not a defense to the amended complaint any
more than it was to the original claim.
o Rule 15c2: if amendment is allowed, it wil be treated as
though it were filed with the original claim
o Reason: purpose of statute of lims is to give ∆ reasonable
notice of a claim within a period of time so that she can adequately
prepare.
o Can’t add an unrelated claim – must arise out of the same
transaction.

IV. Discovery

A. Modern Discovery
Discovery = interplay of relevance, privilege, & judicial discretion
- Compelled exchange of info btwn parties of a suit
R 26 is Master
Ends lawsuits
- Produces info about the merits of the lawsuit
- Lengthy, time consuming, expensive ... parties wear each other down
Discovery is broad, with some limits (must be related to claim/defense).
 Discovery Rules establish 3 stages:
- Requirement of mandatory disclosure
- Provision for further discovery (limited to claims & defenses)
- Provision for broader discovery if party demonstrates ‘good cause’ to
court.
 If parties need more broad discovery, then can appeal to the court, who
may grant broader discovery of any matter that is relevant to the subject matter
involved, if party shows good cause.
 If a party fails to obey an order to provide/permit discovery, court may
make various sanctions on that party. See R 37 b2.
 Ct can set limit on amount, time, burden of discovery

B. Possibilities & Limits: Relevance & Privilege

- To be discoverable info must be relevant & not privileged
- Info may be discoverable even though it won’t / can’t be admissible
as evidence at trial.
 Relevance
- Relevant links discovery – law of pleading – law of evidence –
common sense
- Still, not entitled to all discovery that is relevant
- Relevant: reasons for event occurring, not potential other reasons
party could have used.

12
 - Relevancy is a vague, relative standard ... District ct has a lot of
discretion ...
- Very low threshold
- Ct can restrict access to info even if it is relevant
o Relevant info is presumptively discoverable, but the court has
discretion to limit discovery for various reasons (R 26b2)
 Privilege
- Communications that are not discoverable even though relevant:
o 5th A (in civil cases, opposing counsel can remark about taking the 5th)
o attorney – client
o doctor – patient
o therapist – patient
o religious minister – lay person
- Privilege: a policy judgment that certain communications are so
important
- If info is privileged, party must describe the nature of the info so
other party can assess it.
- Existence of a privilege does not protect factual info, just the
conversation that transpired btwn the privileged parties.

C. Surveying Discovery: Procedures & Methods

 2 Phase Process:
- Required Initial Exchange (R 26a)
o Must Disclose:
 Basic info that party may use to support its claims / defenses
 Expert testimony (basic info + written statement signed by
expert)
· Expert testimony: see R 26 a 2
 Witness basic info
Example:  Computations of damages claimed (make copies / allow for
May 1: Initial mtg inspection of docs available) or insurance agreements
May 14: Last day to  Must be made in writing, signed, & served.
exchange basic info  If don’t disclose a witness/info used, R 37c1 will likely bar the
May 21: Scheduling Conf party from using it. (unless it is harmless)
All with duty to supplement
 Duty to supplement this info when more info becomes
available. R 26 e1
o Initial meeting: (26 f conference about 26 a info)
 Parties must meet early on by themselves
 14 days after initial meeting, parties must exchange basic info
 Parties must have initial meeting at least 21 days before judge
holds a scheduling conference. (so basic info is exchanged no
later than 7 days before scheduling conference)
o Scheduling conference
 Timeline starts at service of complaint
 Within 90 days after a ∆ appearance or within 120 days after
service, judge will hold a scheduling conference
 Judge & counsel discuss the way discovery & other pre-trial
matters should proceed.
o Parties cannot use interrogs, deps, or any other means before
basic info is exchanged.
o Exempt categories from initial disclosure (see R 26a1E)
 Action for review on an administrative record
 Petition for habeas corpus / other proceeding to challenge a
criminal conviction / sentence

13
  An action brought w/out counsel by a person in custody of the
US, a state, or state subdivision
 An action to squash / enforce an administrative summons or
subpoena
 An action by the US to recover benefit payments
 A proceeding ancillary to proceedings in other courts
 An action to enforce an arbitration award.

- Request for Addt’l Info (R 26b)

o Party may move to compel other side to disclose info
 Moving party must certify that she has conferred with
the objecting party, in an effort to resolve the dispute without
involving the court.
o Methods:
 Oral depositions
 Written depositions
 Written interrogatories
 Production of documents / things
 Physical / mental examinations
 Requests for admission
o Party opposing production of info may take the initiative, and
move for a protective order (R 26c)
o General rule: broad presumptive access to info, constrained by
common sense of counsel & discretionary limits imposed by the
judge.
 Depositions
- Deposition = a witness’ sworn out-of-court testimony that is reduced
to writing for later use in court or for discovery purposes
R 28, 30, - Oral deposition:
31, & 32 o Occur in an atty office with all attys present, the witness &
court reporter or recording device
o If deposing a non-party, send a subpoena to ensure presence.
o Counsel doesn’t cross-examine, unless need clarification
o Deposition may be admitted at trial if witness can’t testify in
person
o Total number of depositions by one side may not exceed 10
o No deposition can exceed 7 hrs in one day
o No one can get deposed more than once w/out court or
opposing party permission.
o A party may depose an organization or corporation  org/corp
will appoint an agent(s) to testify on its behalf.
o Motion to terminate or limit deposition must be made in a non-
argumentative, non-suggestive, & concise manner.
o If counsel or witness/party objects to a question shall be noted
by the court reporter and the examination will proceed subject to the
objections. (R 30c)
o Party can only object:
 To preserve a privilege
 Enforce a limitation directed by the court
 Present a motion bc question(s) are in bad faith (an
unreasonable attempt to annoy, embarrass, or oppress)
Motion makes the deposition suspended.
- Written deposition:

14
 o Atty writes down questions, sends them to a ct reporter at the
deposition who asks the question and records the witness’ answers.
o Not really used, bc similar to interrogatory
 Interrogatories
- Interrogatory = a written set of question submitted to an opposing
party
- Only for parties, not 3rd parties
- Cheap ... but generally ineffective
- Must seek permission from ct to ask more than 25 questions
- Recipient / atty must either respond or object to each question
- Time: party must provide the court with a copy of answers &
objections within 30 days of after service. But ct may give a shorter / longer
time
- An interrogatory otherwise proper is not necessarily objectionable
merely bc an answer involves an opinion / contention that relates to fact or
applying law to fact. Ct may order that such an interrogatory need not be
answered until after discovery has been completed or at another later time.
Productions & Inspection of Documents & Things
- Document = any medium of information (email, letter, photo, video,
etc)
o No limit to # of docs requested.
o Can only hold back doc if going to use it for perjury
- Procedure:
o Party: send a R 34 request
 Request must describe documents sought with reasonable
particularity
 Permissible to describe the requested documents by category.
o Non-party: send a subpoena issued under R 45a1C
- The burden of production:
o Party may comply with production by producing relevant
documents as kept in the normal course of business
o Problems with letting the requesting party weed through files:
 Provides the other party access to irrevelant info
 Access to files waives the compelled party’s objection
to production of materials that are protected from
discovery
 Doesn’t save time – will have to go through files
anyway, to see what files the other side has seen
- For Physical / Mental Exams: must show ‘good cause’ (R 35)
o Only can examine people who are parties or who are in the
custody of parties.
o These custody/3rd party – it must be their condition that is in
controversy
Requests for Admission
- Request for admission to take an issue out of controversy (R 36)
- Best used to eliminate undisputed issues
- Cannot use admission for any other purpose than the immediate
pending action (cannot use as evidence in another trial) (R 36d)
- If party doesn’t respond, treated like an admission
- If party objects, must state why they are denying admission
Ensuring Compliance
- Enforcement mechanisms for discovery:
o R 26g: like R 11
 Requires parties to sign disclosures, discovery requests, &
objections
 Punishes parties for unjustified requests & refusals

15
  Suggest that atty fees will be an approp sanction for most
violations
o R 37: Series of devices designed to elicit info or respond to
parties’ refusal to supply info.
 Some sanctions are available on the occurrence of
misbehavior (R 37 d&g)
 Sanctions cannot be sought until after court orders party to
comply (R 37b)
o Parties have the power to write their own discovery rules (R
26a & 29)
 E-Discovery

D. Discovery in an Adversarial System

Privilege & Trial Preparation
- Work Product: tangible (or electronically recorded) material that was
either prepared b or for a lawyer or prepared for litigation, either planned or
in progress. Hickman v. Taylor (1947)
o Generally exempt / immune from discovery. R 26 b3

o To qualify as work product:

Work Product
Doctrine  Must be documents or tangible things
 Prepared in anticipation of a trial / litigation
 Prepared by or for another party or by or for that party’s
representative.
o For a work product to be discovered:
 Must have a substantial need
 Must be unable to obtain equivalent info by other means
o But if work product is able to be discovered, it won’t if:
 It reveals mental impressions, conclusion, opinions, or legal
theories of counsel
o Ask the right questions: document may be protected, but
maybe info is not:
 Factual info = discoverable
 Mental impressions = not discoverable
o Trial materials are discoverable by they must have a
substanbital need and the requesting party must be unable, without
due hardship, to obtain the info by other means.
o Blurry line:
 Factual materials are discoverable
Witness statements
Factual investigation
 Theory materials are not discoverable
· Mental impressions
· Legal theories
· Credibility issues
· Theory of the case
- Contention interrogatory: one party seeks to discover facts that
underlie broad allegations.
o Purpose: expand on the generalities of the pleading and
prepare for the line of proof needed at trial
o Some refuse to answer questions bc it will result in giving out
theory of case or work product.
Expert Information
- Parties hire experts to analyze case & testify

16
 - Experts are being retained in anticipation of trial, not just witnesses
who happen to be experts.
- Before a court will let an expert testify, the party presenting such
testimony must establish that she is an expert & the expertise is relevant
o Experts range from regular professionals to exotic
professionals
o Return to R 26 about initial disclosures:
 Basic info about expert who will / is likely to be a witness (if
detained in anticipation of trial)
 Basic info about the basis for their testimony
 Opposing party must receive a written report prepared &
signed by expert containing complete statement of all
opinions to be expressed and reasons therefore
 Experts must submit to pretrial deposition
 Special barriers for non-testifying experts
o What is going on with R 26b4B: Expert witness can get
deposed under special circumstances (only expert witnesses who will
testify)
- Testifying Experts: full disclosure
- Non-testifying experts: little discovery
- Privileges
o Exceptional circumstances will favor disclosure:
 Ex: Records are discoverable if there is no other comparable
report prepared during the same time frame & party can’t
obtain the info by any other means

V. Resolution without Trial

A. The Pressure to Choose Adjudication or an Alternative

Method of resolving disputes outside the formal litigation processes
Trial still serves as the backdrop for dispute resolution
Good: people can resolve their disputes economically & Creatively
Bad: can demonstrate one-sidedness, greed, & disregard for fairness

B. Avoiding Adjudication
ADR
Alternatives rely on contract
- Courts will enforce Ks not to litigate or only litigate using special
procedures
- Result: parties have a lot of freedom to write their own procedural
rules
Negotiating Settlement
- Settle bc cheaper, faster, easier (most cases are settled)
- Settlements better?
o Yes: consent is basic principle of justice, settlements can take
account of nuances that can be lost at trial, less risky
o No: parties are less satisfied, allow more powerful to win,
deprives the public of definitive adjudication that may reach beyond
the individual case, ¶ might settle for less,
- Settlements control risk:
o Getting something is better than nothing
o Trials are unpredictable & all-or-nothing
o Trials are expensive (don’t know how long either)
- Factors for companies to consider settling:

17
o Investors, bad press
- Contracting to Dismiss
o Release: simplest form of settlement is a K where ¶ agrees not
to bring suit ot drop one that is already filed in exchange for
something (usually $$)
o Clients (not attys) are empowered to make settlement
Prefiling decisions
agreement not o Parties can settle via phone, meeting, or exchanging docs
to sue
o No ct approval needed for settlement
 Exceptions:
Voluntaryminors, class actions, multi ∆ cases (R 23 e3)
dismissal & o Settlements are binding Ks that can be attacked on the
agreement not grounds of fraud, duress, mistake, incapacity, unconscionability, etc.
to sue o Written settlements should contain all basic info & must be
signed and dated
Dismissal with o Prefiling agreements not to sue: eliminate all litigation costs
prejudice
and carefully define scope of threatened law suit.
o If ¶ sues anyway, ∆ should use R 8c: affirmative defense
being the arbitration & award, or should move for summary judgment
(R 56b)
o If ∆ breaks settlement terms, ¶ should sue for breach of K.
o Dismissal of Actions:
 Voluntary Dismissal
· ¶ voluntarily dismisses claim before answer is filed.
· Valuable to ∆ : don’t need to accept/deny ¶ claims
· Valuable to ¶: can re-file
 Can only use it once to be able to re-file
· R 41 a
 Involuntary Dismissal with Prejudice
· ∆ moves for dismissal bc of ¶ bad behavior, incompetence
· Operates as an adjudication on the merits
· R 41b
 Simple Dismissal with Prejudice
· Best thing to do if settlement calls for future
action
· To enforce settlement, just go back to court-
already in the pipeline, and don’t need to start all
over again in back of line (like a breach of K for
broken settlement)
· A consent decree invokes the court’s jurisdiction
to enforce the settlement.
· Aka stipulated judgment
o Partial Settlement can guarantee trial:
 Settle / stipulate liability, but can take damages to trial
 Take liability to trial, but before hand, stipulate to 1 of 2
damages (usually a high-low). Used to reduce risk
o Should a judge mandate a settlement?
 Yes: Trial could be a waste of time
 No: parties deserve their day in court, violate due process
bc no right to appeal.
- rd
3 Party Participation in Settlement: Facilitation, Encouragement, &
Coercion
o Mediation = assisted negotiation = for when settlements fail
 Goal: agreement
 Positional mediation: as what it will take to settle the case

18
  Interest mediation: discovering monetary & non-monetary
goals
 Not arbitration (arbitration is negotiation)
o A settlement from state court can affect federal ct claims
(Matsushita Elec. Industrtial v. Epstein)
 State court judgment that embodies a settlement can
preclude claims that have exclusive federal jurisdiction so
long as the state law preclusion would give effect to state
judgment.
 Can settle state & fed claims in one settlement release. Or
can just settle state claims or just federal claims,
depending how narrow it is.
C. Summary Judgment
 Alternative to trial when cases are so one-sided that trial would be
R 56 pointless
 Summary Judgment motions are granted when the record shows there is
no issue about material facts and when the moving party is entitled to judgment as
a matter of law (R 56c)
- SJ will work if moving party is not contesting the facts
Ways to
o If there is an issue of material fact, it might change the
knock out a
case: outcome of the case
Pre-answer o If there is a genuine dispute of the issue, a reasonable jury
motion & SJ could come out either way
- Moving party must be entitled to a judgment as a matter of law
o In viewing evidence in best light to non-moving party.
 SJ reaches the factual and legal merits of a case
 Procedure: Need to serve motion at least 10 days before hearing.
- Can make a SJ motion at any time after 20 days after the
commencement of action.
 For SJ: no juries; no witnesses testify. No credibility assessment
 Cts decide SJ motions on basis of documents (R 56 c) (affidavits, deposition
transcripts). R 56e
- Affidavits: must be in regards to personal knowledge, must set forth
facts that would be admissible of evidence, and must show that person who
is writing it would be willing to testify.
o No hearsay
o Can’t just offer a conclusion, need supporting facts
o A moving party always bears the initial responsibility for
informing district ct of the basis for the motion
o No requirement that moving party is required to support its
motion with affidavits, etc to negate the non-moving party’s claim.
o If no affidavits are available, go to R 56f: ct may permit a
continuance to permit affidavits be obtained or other means of
discovery or the court can refuse the application for SJ.
 Ct needs to see evidence ... can’t reply that evidence is
forthcoming. If so, then use R 56f
 If adverse (non-moving) party wins SJ, doesn’t mean that they win
everything, just that there is something to have a trial on.
 The party that will have the burden of proof at trial has the equivalent
burden at the SJ hearing.
- Effect: standard for SJ will be applied differently depending on which
party is moving for SJ.
- Need enough for a reasonable fact0finder to find in party’ favor,
considering which party has the burden.
- To win:

19
 o Moving Party with burden: introduce evidence to make their
claim
o Moving Party w/no burden: claim that non-moving party
doesn’t have enough evidence to meet their burden at trial for a
reasonable jury to find in their favor.
Non-moving party has 3 choices:
- Use R 56f: too soon. Use to delay / deny motion bc can get facts if
had more time.
- Moving party has not established their burden that there is no
material issue of fact
- Introduce own evidence to show that there is an issue.
 Ct’s job: view facts most favorable to non-moving party and ignore
evidence on other side.
- Then: ask, could a reasonable fact-finder find for non moving party?
o Yes: SJ is not appropriate
o No: SJ is appropriate

VI. Identifying the Trier

- Trier = who holds power of decision

- Choice: judge, jury, choice among jury members
A. Judging Judges
 Central importance regarding judge
- Most lawsuits don’t reach trial, much less a jury
- In most cases, the decisions are made by the judge (jurisdiction, discovery,
etc)
- At trial, judges play active role (decision on motions, challenges to jurors,
setting aside jury verdicts, orders new trials)
- System does seek to balance:
o Protect litigants against biased judges
o Giving litigants free reign to recuse judges
 There is a clear bias needing recusal if judge has said how she would rule before
ruling
- But no bias if judge has ruled against atty before or if judge has a bad
attitude toward a certain atty.
- A jury trial does not cancel a judge’s bias bc a judge still rules on good
amount of decisions during the trial.
 Procedure for recusing judge: 28 USC § 455
- Where judge has:
o Served as an atty in the matter in controversy
o Served in gov employment & expressed an opinion concerning the
merits of the particular case / controversy
o A family member with a financial interest in 1 of parties
- Any judge shall disqualify himself in any proceeding in which his impartiality
might reasonably be questioned
o Waiver may be accepted provided it is preceded by a full disclosure
on the record of the basis for disqualification.

B. Judge or Jury: The right to a jury trial

Historical Reconstruction & the 7th A
- Civil jury trial only really in US , derived from Engl but not used much
there
- 7th A: right to jury trial for value over $20. No fact tried by a jury shall
be re-examined by any ct in US (unless common law rules say otherwise).

20
o Jury trial = R 38
o Does not indicate scope of the right
o Courts adopted a historical test for jury trials
 Historical test (back to English law): jury for legal claims
not equitable claims.
· Legal = debt, K, ejectment, takings, etc
· Equity = injunctions, specific performance
 Ask: Would a given claim lay with in the jurisdiction of the
common law courts in 1791?
· Yes = jury
· No = judge
Can amend complaint to get a legal claim to get a jury
Applying the Historical Test to New Claims
- 2 part test:
o Compare action to actions that were available in 1791.
o Determine the remedy sought.
 Only ask 2nd question is there is no appropriate analogy
 Exceptions: Jury won’t hear cases about damages if:
· Damages are restitutionary
· Monetary award intertwines with injunction

K case Stolen ring

¶ seeks $$ damages Jury ¶ seeks to recover value (trover) Jury
¶ seeks specific perf Judge ¶ seeks to recover the ring Jury
¶ seeks reformation Judge
(replevlin)
¶ seeks rescindment Judgee
Wrongful occupation of property
Nuisance / property case
¶ seeks damages Jury
¶ seeks damages Jury
¶ seeks to eject Jury
¶ seeks injunction Judge

- Can waive right to jury trial by failing to raise right

o Parties can also waive right contractually
- Trend: for Supreme Ct to find money damages remedies to be heard
by jury with the exception for patent law
- If ¶ seeks equitable remedies & ∆ counter-claims are money, both
are entitled to a jury trial
- If ¶ claim remedies are both legal and equitable, a jury will hear legal
and then a judge will rule on the equitable claims

VII. Trial

- Trials ≠ adjudication
o Can have adjudication without trial (R 12b6 or SJ)
- Trials are infrequent but shape every part of procedure
- Judges still have many devices for defining jury’s boundaries in their
role as decision maker:
o Law of evidence
o Power instruction jury
o Directed verdict
o JNOV

21
o Grant new trials.

A. The Limits of Rational Interference

 US procedure: judgment should be based only on inferences that a
reasonable person could rationally draw from the evidence presented at trial
 Need some proof of what happened, evidence can’t just be an inference.
Need logic.
 If there is no jury, then the judge needs to state finding of facts and
conclusions of law (separately) (R 52a)
- OK if judge, at the conclusion of evidence, states facts & conclusion
of law orally as long as it is recorded. Otherwise, state it in an opinion or
memorandum of decision filed by the court.
- Finding of fact made by a judge can be set-aside later if it is clearly
erroneous (R 52b)

B. Procedural Control of Rational Proof

- Tradition of adversarial responsibility for proof & the system of jury
trial dictate the particular forms by which the system tries to assure
rationality and its limits
Juries, Democracy, & Rationality
- Jury = fact-finding body, community voice, temporary lay and
democratic institution that stands at the core of a permanent, professional,
and elite institution (the judiciary)
- Being the community voice & the temporary law democr institution
sometimes conflict with the fact finder.
- Try to ensure that cases that reach jury are close enough only for a
rational fact-finder to decide either way.
Adversarial Responsibility for Proof
- Shift the responsibility from the court to the parties
- SJ will weed out the easy, clear cases
- Result: verdict may not be an announcement of the truth but a
judgment about who presented the more credible version of the case
- Burdens of proof follow from the design of entire procedural system
Burdens
- Burden of Persuasion (for tie-breaker)
o Defines the extent to which a trier of fact must be convinced
of some proposition to render a verdict for party who bears the
burden
o In Civil cases, only need ‘preponderance of evidence’ = 51%
o Only matters in a perfectly balanced case which party carries
the burden of persuasion (only when it is 50/50 that burden matters)

- Burden of Production
o Basic idea: party who bears the burden of production, has to
produce each evidence in support of each element.
o Party who has the burden of persuasion, also have the burden
of production
o ¶ has the burden for the elements of the claim, and ∆ has the
burden for the affirmative defense
o Requires party to produce find & present evidence
o Summary Judgment relies on burden of production
 Need sufficient evidence to allow a rational trier of fact
to find in her favor
o Meeting one’s burden does not mean that the trier of fact has
to rule in your favor, only that they are able to

22
  Controlling Juries Before the Verdict
- Directed Verdict
o Judgment as a matter of law before vedict
o Purpose: to take the case away from the jury, on the ground
that the evidence is insufficient to support a verdict for the ¶/∆ (R
50a)
o First opportunity: after ¶‘s case; Last opportunity: before the
Jury Instructions.
 Can move for a directed verdict multiple times
o No 7th A violation:
 For 7th A, need a case/controversy (legitimate dispute)
 Constitutional role of fact-finder is not required
o Ct will only look at all evidence from both sides & ask “is there
a substantial conflict in evidence?
 Need a substantial amnt, not a scintilla
o Moving party wil ask judge to take case away from jury
 A judge should only direct a verct if there is no rational
basis for a jury to find in favor of the party against
whom the verdict is directed.
 Will raise credibility, inference, evaluation, & substance
issues.
 Can motion multiple times
o Directed verdict black letter law is not clear ... so gray
 Cts will be tempted to weigh in on the credibility of
witnesses
 Basic test: Would reasonable persons differ?
- Excluding Improper Influences
o Judges prefer not to enter judgments as a matter of law
 Will do everything they can that jurors won’t reach verdicts
Judgment as a Matter of that can’t be sustained by the evidence
Law: · Screen jury to elimination jurors who will likely
Directed verdict (R 50a), reach irrational verdicts (bc of sympathies or
before jury dimness)
JNOV (R 50b), after jury · Will rule on the law of evidence so juror will only
consider screened info
· Will instruct jurors not to talk to others and to
only decide on the basis of evidence presented in
the courtroom.
 Controlling Juries After the Verdict
- Judgment Notwithstanding the Verdict
o Take verdict away from the jury
o Prerequisite: a motion for a directed verdict
 Don’t move for a DV, can’t move for a JNOV
 Purpose of Prerequisite:
· Preserves sufficiency of the evidence as a
question of law
· Calls the court & party’s attention to any
alleged deficiencies in the evidence at a time when
opposing party still has time to correct them
 Make DV part of trial script
o Judges should not let cases go to jury without a sufficient
amount of evidence
o JNOV’s almost always result in an appeal
 Only motion denied that can be immediately appealed
o Little authority for the standard for reviewing a trial judge’s JNOV

23
o Credibility issues are always for the jury (Judge shouldn’t be 13th juror)
- New Trial
o Granting JNOV = wrong winner
o New trial = a start-over, not a declaration of who should have
won.
o A judge or a party can move to have a new trial. (R 50c, 59)
o 2 situations for a new trial
 Process Problem
· Process leading up to the verdict was flawed
· Impermissible argument or evidence allowed
 Verdict Problem
· Bad instructions given or jury didn’t understand
JNOV = R 50 instructions
New trial = R 59 · “JNOV lite”
· Judge doesn’t want to direct a verdict, so will try
it again
 Judge will rule on new trial & JNOV
motion together. (R 59d)
o No interlocutory appeals for new trials in federal ct

VIII. Respect for Judgments

- Procedural rules serve 2 purposes:

o Air disputes completely and reach and accurate & just outcome
o Seek to end disputes, even if outcome is less than desirable.
- Finality: statutes of limitation, claim preclusion, & issue preclusion
- Claim preclusion: forbids a party from relitigating a claim that should have
been raised in former litigation
o Claim preclusion = “res judicata”
o Goals: efficiency, finality, consistent results
- Issue preclusion: when some issue involved in that claim has been previously
litigated
o Issue preclusion = “collateral estoppel”

A. Claim Preclusion
 Res judicata
 Same claim & same parties!
 4 prerequisites needed:
Note: claims - Claim in 2nd action must be same claim that was litigated in the 1st action
that could not - Parties must be the same
be joined will
not be barred
- Judgment rendered in 1st action must be final
by claim - Judgment must have been rendered on the merits of the case
preclusion  Precluding the Same Claim
- Claim Preclusion is designed to impel
parties to consolidate all closely related matters into 1 suit
- A ∆ may invoke claim preclusion when
the ¶ litigated a subset of all available disputes between the parties in the 1st
suit.

- Restatement Test of what is a claim:

24
 Interrelated by
o When a valid and final judgment
same transaction or rendered in an action extinguishes a ¶‘s claim ..., the claim
series of extinguished all right of the ¶ to remedies against the ∆ with respect
transactions. to all / any part of the transaction, or series of transactions, or series
of connected transactions, out of which the claim arose.
o What factual grouping constitutes
a “transaction” and what groupings constitute a “series,” are to be
determined pragmatically, giving weight to such considerations as
whether the facts are related in time, space, origin, or motivation,
whether they form a convenient trial unit, and whether their
treatment as a unit conforms to the parties’ expectations or business
understanding or usage.
 Between the Same Parties
- Claim preclusion only works between
those who were the parties to both the 1st & 2nd lawsuits.
- Generally, separate individuals are
2 Constitutional regarded as having separate claims
Prerequisites: - Several exceptions:
1- Notice
2- Actual
o Privity: an ongoing or contractual
parties must relationship (most important)
know that they o Substantive Legal relationship:
are repping the ex: successive ownership of land with easements. 1 party sues to
interests of enforce the easement against the 2nd party & wins. 2nd party sells to
others. 3rd party – 3rd party must obey previous suit.
o Express Agreement: agree to be
bound by lawsuit (like a waiver)
o Procedural Representation: like in
a class action.
Good Test for Parties & Claim Preclusion:
o Was the issue decided in the
proper adjudication identical with the issue presented in the action in
question?
o Was there a final judgment?
o Was the party against whom the
plea is asserted a party or a person in privity with a party in the prior
adjudication?
o Was the issue in the 1st case
competently, fully, & fairly litigated?
 After a Final Judgment
- Usually a claim preclusion assumes a
prior judgment
- A party can move that final judgment
should be relieved bc the judgment has been satisfied, released, or
discharged or a prior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the judgment should abe
a prospective application. (R 60b5)
 After a Final Judgment “On the Merits”
- Not all judgments receive preclusive
effect
- Cts may attach preclusive effect bc:
Ct actually considered and ruled on the merits of the case
A party misbehaved and the ct dismissed the suit as a sanction.
 If parties were allowed to
start over after a sanction, would encourage bad behavior
to get a new trial as a strategy.
Preclusive effect?

25
 o Full jury trial = Yes preclusive
effect
o Directed verdict = Yes preclusive
effect
o Summary Judgment = Yes
preclusive effect
o 12b6 = depends
 Sup Ct has ruled that a
dismissal 12b6 ruling is a judgment on the merits
 But states have different
rules & reasons
 12b6 for formal or
meritorious reasons
 Fed ct must follow state
law
o 12b2 (personal jurisd) = No,
o Dismissal for failure to prosecute
= Yes, preclusive effect.
- Unless the ct says otherwise, every
dismissal (except for lack of jurisdiction, improper venue or failure to join a
party) operates as a dismissal on the merits. (R 41b)
- Ask: does it make sense to give it
preclusive effect?
- Think: did the party have a meaningful
opportunity to have the claim ruled on?
 Claim Preclusion & Compulsory Counterclaims
Failure to bring a compulsory counterclaim precludes from bringing it again.
Could lead to inconsistent outcome

B. Issue Preclusion
 Collateral estoppel
 Issue Preclusion bars from re-litigation only that specific issue that was litigated and
determined & essential to prior judgment
- Need: an issue of fact or law that was actually litigated and determined by a
valid & final judgment and the determination is essential to the judgment.
The determination is conclusive in a subsequent action btwn the parties,
whether on the same or different claim.
o Must be an issue that was essential to the verdict
 Ask: whether the finding had come out the other way in the 1st
lawsuit, would the judgment be the same? (if yes, then the
issue was not essential.) Bc want to ensure that the jury
actually considered the issue
o Cts may require the jury to submit a special verdict form (R 49a)
 4 Elements:
- An issue is of fact or law that was
- Actually litigated and determined by
- A valid and final judgment and
- The determination was essential to the judgment
 Threshold question: the identity of the issue to be precluded
 Remember the burden of proof is different for civil & criminal cases
- Civil suit has lesser burden
- A dismissal based on discovery is not valid for issue preclusion
 Burden is on the party asserting issue preclusion
- A litigant can use outside evidence to the record to establish which issues
were actually determined in previous litigation
o Evidence to the record = trial transcript, jury instructions

26
  Between Which Parties?
- The “Victim” of Preclusion
o Old common law: mutuality was a requirement for both claim & issue
preclusion.
 Still a requirement for claim preclusion
 Not a requirement for issue preclusion
o The requirements of due process forbid the assertion of issue
preclusion against a party unless that party was bound by the earlier
litigation in which the matter was decided. (issue preclusion victim)
 Ex: Husband & wife in collision with RR. Wife v. RR Co and
wife wins. But after, husband will be allowed to bring his suit,
separately, and sue RR. RR cannot assert claim preclusion bc
different parties.
⋅ Old rule: husband could not take advantage of wife’s
victory.
⋅ New rule: husband can take advantage of issue
preclusion to prevent RR re-litigating case bc RR
already had a full & fair opportunity to litigate.
⋅ Victim bc if RR won in 1st case, can’t take advantage
bc husband was not a party in the 1st case.
- The Precluder
o General rule: where a ¶ could easily have been joined in the earlier
action or where application of issue preclusion would be unfair to a
∆ , a trial judge should not allow action.
o Offensive Issue Preclusion: ¶ uses the prior determination like a
sword
 ¶ tries to hold ∆ to prior outcome (where ∆ litigated & lost)
 Good for ¶s: can wait & see, and then if 1st case is successful,
can piggy-back off of it.
 Cts are hestitant to use it.
o Defensive Issue Preclusion: ∆ invokes past trial like a shield
 ¶ already lost suing another ∆ on same issue
o Remember 2 goals of issue preclusion
 Consistency of verdicts
 Efficiency

IX. Constitutional Framework for US Litigation

A. Constitutional Limits in Litigation

Basic Jurisdiction
- Jurisdiction: the power to declare law
- Judicial Jurisdiction: the power of a court to render a judgment that
other courts & gov agencies will recognize & enforce
Jurisdiction & Constitution
- Personal Jurisdiction: a court’s power to bring a person into its
adjudicative process
- Subject Matter Jurisdiction: jurisdiction over the nature of the case
and the type of relief sought.
- Constitutional provisions relating to jurisdiction
o Article 3: Establishment of courts
 Section 2 sets limits for federal judicial authority
o Article 4, section 1: Full Faith & Credit Clause:

27
  Requires each state to recognize & enforce judgments of
other states
 Only if the court rendering the decision had the jurisdiction
to do so.
o DPC of 14th A: no state shall deprive any person of life, liberty
or property w/out due process of the law.

X. Personal Jurisdiction

- Whether the court has the power to render judgment against the ∆ ?
In personam jurisdiction: jurisdiction over the person
- The power to adjudicate a claim to its fullest extent.
- Ct can take this judgmente to acny state via the FFC Clause to have it
enforced.
- If ct has in personam jurisdiction, then it has adjudication power
involving personal jurisdiction
In Rem jurisdiction: court’s power over a thing (not over a person)
- Only jurisdiction over the property.
o Ct may have in rem if property is within the territory of state
o Ex: “quiet title action”: tell us who owns it.
Quasi-in rem jurisdiction: would be in personam jurisdiction, if court had jurisdiction over the
person
- When there is no other forum to get ∆
- ¶ will attach property that ∆ owns that is in state and, if successful,
will only get the value of that property
o Ct seizes property, and if it finds for ¶, can give it to ¶ or sell it
and give money to ¶.
o Not really about the property, but ct just uses property bc it
has jurisdiction over the property and not over the person.
o Constructive notice is ok for quasi-in rem.

A. The Origins
Pennoyer v. Neff
- Basic:
o 2 lawsuits: Mitchell v. Neff. Neff owed Mitchell money, so
Mitchell sued him for it. At time of filing, Neff owned no property in
OR. Mitchell won bc Neff didn’t show up for court (default judgment).
After judgment, Neff bought 300 acres. As relief, Mitchell got Neff’s
newly bought property and sold it to Penoyer. Neff found out and
then: Neff v. Penoyer to get property back.
o This was an in personam jurisdiction
 Not a suit to determine who owns what.
 If Neff had property all along and court seized it from the
outset, then would have been quasi-in rem
 Mitchell & Neff, when Mitchell contracted his labor to Neff- he could have made Neff sign a waiver,
consenting to OR jurisdiction.
o Neff’s problems:
 No notice (only constructive notice – in newspaper)
· Constructive notice is not ok for non-residents
· If it was ok, then there would be ramant fraud
and oppression.
 Didn’t have the property at the time

28
  NotPennoyer test for
convenient in back to Oregon
to go
 personam jurisd:
General unfairness
o Pennoyer’s basic, Constitutional args (well-established)
Presence?
Y: jurisdiction  Every state possesses exclusive jurisdiction and
N: no jurisdiction sovereignty over persons and property within its territory
 No state can exercise direct jurisdiction over
Continual presence
is required. persons/property outside its territory
o Scheme: Power (in personam), Consent (none), Notice
(constructive or in-person)
o State can not go outside of its territory to serve someone
Challenge & Waiver
- Collateral Attack: a risky but simple way for ∆ s who are not subject
to personal jurisdiction
o Do nothing, decline to appear, default judgment entered, then
attack judgment when ¶ seks to enforece the relief in a subsequent
proceeding
- In fed rules, ∆ can raise jurisdictional defense in the answer or pre-
answer motion
o Lack of personal jurisdiction is a defense that can be used in a
pre-answer motion. (R 12b2)
o Waive defense of lack of personal jurisdiction if it is omitted
from a pre-answer motion. (R 12h1A)
o Waive defense of lack of personal jurisdiction if it is omitted in
an answer or amendment. (R 12h 1B)
o Join all motions together, can’t make an additional motion
after one is already filed (except can make a subject matter
jurisdiction motion at any time). (R 12g)
 Any motion filed will trigger 12g
 Make all motions together & right away!

B. The Modern Constitutional Formulation of Power

- 3 themes in modern law of personal jurisdiction:
o Power
o Consent
o Notice
 Redefining Constitutional Power
- Problem with Pennoyer aftermath: what to do with defendants who
are corporations
o Would be looking for a physical presence or things suggesting
that corporation was present
o If corporation is present, then can use any type of claim
jurisdiction
- Domicile in state is sufficient to bring an absent ∆ within reach of the
state’s jurisdiction for in personam jurisdiction by a substituted service
o Substituted service: service other than personal service.
- International Shoe v, Washington
o Rule: In personam jurisdiction depends on what claim and how
much contact it has with the state
Minimum Contact Rule! o Test: Due Process requires only that in order to have personal
jurisdiction (in personam jurisdiction) over a ∆ & ∆ is not present
within the territory, then ∆ has to have certain minimum contacts
with it, such that the maintenance of the suit does not offend
“traditional notions of fair play & substantial justice.
 Casual and/or continual presence in the state is not
enough.

29
  When a corp does business with the state, it enjoys certain
benefits and protection of the laws, so that it gives rise to
obligations
 Here, Intl Shoe Corp had a systematic and continuous
presence in the state, so the method of notice (mailing it
to company HQ and giving a copy to one of its salesmen)
was reasonable.
o Parties were arguing over presence and consent
o Business can’t hide in one state; will be held accountable
wherever they do business
o However no workable standard offered.
 General Jurisdiction: claim doesn’t have to relate to a contact in state. ∆ has so much contact
(likeNeed
domicile) thatcontact
to analyze someone & can bring any claim against them in that state.
claim to differentiate btwn · As long as there are sufficient contacts, ∆
general & specific.
company can be adjudicated about anything
 Specific Jurisdiction: claim has to have a specific tie to state.
· Minimum contacts establish a close enough
relationship btwn the contacts and the claim in
question
 In Rem Jurisdiction
- Int’l Shoe left 2 jurisdiction questions open:
o Did not discuss what to do with individuals
o Did not discuss in rem & quasi in rem.
- Quasi in rem was most expanded in Harris v. Balk:
o Treated debt like property: Debtor represented lender’s
property
o So, whenever debtor went into a state, that state could
acquire in rem jurisdiction over lenders.
o Result: made creditors liable where ever debtors traveled.
- Due process does not preclude one state court from adjudicating against a business of another
state who had sufficient contacts in its state.
- More on minimum contacts:
o Contacts need to be at least minimal, for a specific jurisdiction
o Factors to consider:
 Solicitation,
 The parties
 What type of business
o There is a limit, though
 Really do need some contacts, ties or relations
Shaffer v. Heitner pretty
much squelched quasi  A law saying intangible property (e.g. stock) is deemed
in rem. If you have the property within a state is not enough.
contacts, just go with in  Property holder must have some ties to forum state
personam!

o Even though Shaffer limited quasi in rem, it still exists- like if a

∆ is out of the country.
 Jurisdiction by Necessity doctrine: used when there
should be jurisdiction, but there is no other forum
available.
· Allows for jurisdiction under an in rem theory
when it is too difficult to find who the ∆ is.
 Specific Jurisdiction
- Claim & ∆ has to have a specific tie to state
o Continuous & substantial contact with forum state

30
 - Foreseeability has never been a sufficient benchmark for
o Foreseeability is not the mere likelihood that a product (sold &
marketed in another state) will find its way into the forum state
o Arg for foreseeabily (using Volkswagon case)
 Accident happened in forum state
 It is a mobile item
 Efficiency- all witnesses, etc are here
o Arg against foreseeability (using Volksw case)
 Possible to take any chattel across state lines ... would
dismantle contacts rule
· State lines do matter.
 This was a product liability suit, not an accident suit
- ∆ must purposefully avail themselves to the rights and benefits of
state law.
- Purposeful availment: ∆ is purposefully and intentionally causing
contacts with the forum state and will be subjected to personal jurisdiction.
 General Jurisdiction
- Where the requisite minimum contacts btwn ∆ and forum state are
fairly extensive
o For corps: state of incorporation or the principle state of business
o For people: the state of domicile.
- If a ∆ is subjected to general jurisdiction, then any claims against ∆
can be brought
- Qualification: ct may use ‘reasonable analysis’ for denying jurisdiction
when there are contacts in forum state.
Dismissal for lack of personal jurisdiction: R 12 b 2 motion
- ¶ bears the burden of demonstrating personal jurisdiction by a
preponderance of evidence

Non-resident presence
- Jurisdiction based on physical presence alone constitutes due process
bc it is one of the continuing traditions of our legal system that define the
due process standard of “traditional notions of fair play & substantial justice.
- Courts of a forum state have jurisdiction over non-residents who are
physically present in the state.
o No presence  “Minimum contacts”
o Presence = presence
o Any type of visit is presence and is purposeful availment of
state’s benefits
 States benefits = fire, ambulance, roads, etc
o Unfair results: lay over at an airport is presence.

C. The Constitutional Requirement of Notice

 Pennoyer established a scheme: Notice, Consent & Power
- In order to exercise jurisdiction over a ∆ , a forum state must have either:
o Power (minimum contacts at the least); or
o Consent from ∆ (through pre-litigation agreement or from ∆ ’s waiver
or failure to challenge jurisdiction at appearance).
- Notice
o Traditional: personal service of process was power & notice
o States started to expand concept of notice, but the went to far.
 Ex: NJ Non-resident motor statute (use of roads was
consent for both jurisdiction and service of process by Sec
of State). Law was struck down by US Supreme Ct.

31
  Method of Notice
- ∆ s under in personam must get some form of real notice.
- Method of service must be reasonably certain to provide actual notice
- If addresses are known, then there is no excuse
- Constructive notice is only OK when it is not possible or practicable to give a
more adequate warning/notice
?? Basic question:
o Key: must use ‘reasonable’ efforts to reach most people
so there is an
- Personal service of summons/complaint will always be constitutionally
assumption here
adequate.
that states can’t
go out of their o Non-resident ∆ is less likely to have personal service
- territory to serve 2 guidelines for notice:
notice. o Time: must give ∆ a reasonable time to respond
o Content: must reasonably convey info. Must actually give some
minimum amnt of info.
- Process that is a mere gesture is not due process.
- Can’t use regular mail. Need some type of confirmation like trackable mail
or request signature.
 Service of Notice
- 2 options: (R 4)
o Waiver: deliver through 1st class mail and ∆ mails back a form
waiving summons
 Not all ∆ s can waive summons
 Time:
⋅ Within US: ∆ has 30 days to respond
⋅ Outside US: ∆ has 60 days to respond
o Summons: by a non-party adult who is 18 yrs/older. (more expensive)
 File complaint
 Have 120 days to send Forms 1A & 1B to ∆ , if fail then
ct will dismiss complaint without prejudice. ¶ can ask for
an extension. (R 4m)
- R 4 Scheme
o Personal jurisdiction over anyone whom the forum state’s court would
have jurisdiction (R 4 ka)
o Personal jurisdiction over someone joined under R 14 (3rd party by
either ¶ or ∆ ) or R 19 (Joinder of persons needed for just
adjudication)
o Personal Jurisdiction over anyone in the country when a statute says
that’s possible.
o Personal jurisdiction over foreign defendants who don’t have
minimum contacts with any one forum but who have minimum
contacts when aggregated over all the states.
- International Business:
o Hague convention allows perople to serve process on foreign ∆ s.

D. Venue
 Where, within a given court system, a case should be filed
- A statutory createure
- Generally where ∆ resides or the place where the claim arose.

E. Declining Jurisdiction: transfer & Forum Non Conveniens

Forum Non Conveniens
- Doctrine that an appropriate forum may divest itself of jurisdiction, if
for the convenience of the litigants and the witnesses, it appears that the
action should proceed in another forum in which the action could have
originally ben brought

32
 - Discretion to the court to decline adjudication (ct has the authority to
decide)
o In deciding FNC dismissal:
 When ¶ chooses a forum, need a good reason to take it out
of the forum
· One good reason: if the burden and
“oppressiveness” to the defendant is out of
proportion to the convenience of the ¶
· OK reason, but not that great, is that the court
has an overloaded docket
 Ct must consider & balance private interest factors with
public interest factors.

Private Interest Factors Public interest factors

Relative ease of access to
sources of proof
Availability of compulsory
process for attendance of
unwilling witnesses & the
cost of obtaining attendance
of willing witnesses
Possibility of view of
premises, if view would be
appropriate to the action
All other practical issues
that make a case as easy,
expeditious, and
inexpensive
Administrative difficulties
flowing from court congestion
The local interest in having
localized controversies
decided at home
The interest in having the
trial of adversity case in a
form that is at home with the
law that must govern the
action.
The avoidance of
unnecessary problems in
conflict of laws or in the
application of foreign law
The unfairness of burdening
citizens in an unrelated forum
with jury duty.

· Interests o
 American ¶/∆ has priority over foreign ¶/∆
· If not, then we are inviting anyone in the world
who has been injured by a US product to have the
opportunity to bring claim in American courts.
- Key: a court that is considering a FNC motion is considering a motion
to dismiss
o Most likely that a FNC dismissal won’t ever come back
- FNC dismissal are conditional
o Judge will grant FNC dismissal on condition (ex. That ∆ will waive statute of limitations or that ∆
will allow a certain discovery rule)
Transfer (§ 1404, 1406, & 1631)
- Not a motion to dismiss, just a motion to transfer case to another
court
- Transfer can only happen within a court system (fed to another fed
ct)
o States have their own transfer system

- § 1404: Change of venue

- § 1406: Cure or waiver of defect
- § 1631: Transfer to Cure Want of Jurisdiction

33
XI. Subject Matter Jurisdiction

A. Basic Subject Matter Jurisdiction

Every claim in fed ct must satisfy either:
- Federal Question
- Diversity
- Supplemental
 Basic: Assuming that the forum ct has personal jurisdiction over ∆ , which state (fed
or state or both) can hear the claim?
- Federal courts have limited subject matter jurisdiction
- State courts have general subject matter jurisdiction
- Concurrent cases: cases that can fit into either state or federal’s jurisdiction
 Federal Cts are limited jurisdiction
- Limited by Art 3, § 2 of the Constitution
o Provision sets outerbounds for subject matter jurisdiction
o Congress can enact statute that gives less jurisdiction
o We have less subject matter jurisdiction than the Const allows
o Congress has given federal cts exclusive jurisdiction over
some controversies (patent, immigration)
- R 8a reflects limited jurisdiction
o Short & plain statement so that court can judge jurisdiction
o Sorting to occur at beginning, rather than end of trial
 So not much is invested
- Art 3, § 1: Congress bestows on lower cts some but all of jurisdiction.
o Most important are maritime & diversity
o Most important absence: general jurisdiction
- Federal Declaratory Act: cts can hear a case just when a ∆ seeks a
declaration of rights
o Act does not expand the jurisdiction of the fed cts

B. Federal Question Jurisdiction (USC § 1331)

 Under federal limited jurisdiction, a case must arise under federal law.
- Only when the ¶‘s statement of his own cause of action shows that it
is based upon those laws or the Constitution.
o Would have to mention fed law when proving elements of
cause of action.
o Not enough that the ¶ anticipates a defnse that has to do with fed
laws or Constitution.
- Statutory “arising under” is more narrow than Constitution’s
meaning.
When ∆ challenges subject matter jurisdiction 3 issues arise:
- Is there a federal issue at all?
- Does ¶‘s claim arise under fed law?
- If it isn’t a primary issue, is fed law a dominating enough issue to
make it a federal case?
o Federal Law interest might be an argument for fed jurisdiction:
 If there is antional interests in disponsing of case.
 How likely is it that the national interest will in fact be
implicated?
 How likely is it that the Supreme Ct will use its limited
resources to decide the federal issue where the record is
made in state court?
Challenging Federal Subject Matter Jurisdiction
- Dismissals with Rule 12:

34
o 12 b1: Jurisdiction
 If it is clear that there is no bais for federal claim
 No federal question
 Whatever the outcome of motion, no judgment on the merits
o 12 b 6: failure to state a claim
 Federal law doesn’t actually support ¶ claim
 Judgment on the merits with preclusive effect.
- No waiver: can object to subject matter jurisdiction at any time.

C. Diversity Jurisdiction (USC § 1332)

 Historical: courts would be prejudiced against out of states
 § 1332 amended to restrict diversity
 Rule: Need to have diversity & amount in controversy
- Amnt in Controversy
o Only applies to diversity jurisdiction
 Does not apply to federal question jurisdiction
o ¶ can add multiple claims against 1 ∆ to get to “amnt in controversy”, but can’t add different ¶s
amnts to get to “amnt in controversy”
o Amount is statutory in nature: changes every so often
 Now: above $75,000.
· Needs to be $75,000.01 or more.
- Diversity:
o Citizens of different states
o Citizens
Need to beof a state v. citizens of a foreign state
diverse
o atCitizens
time of filing
of different states v. citizens of foreign state
o Foreign state as ¶ v. citizens of 1/all different states.
- Citizens of different states
o Can’t have parties from same states on either side of “v.”
o For purposes of diversity jurisdiction, resident aliens are
considered citizens.
o Need all citizens of 1 state on 1 side, can’t mix it up.
o Partnerships are not considered as entities but as collection of
individuals: citizenship of each member of a partnership must be
considered.
o Corporate parties have 2 citizenships:
 State of incorporation
 Principle place of business
· Will only have 1 principle place of business
 Corporate Nerve Center
⋅ “HQ”
⋅ Usually the place used
 Where stuff gets done
- Citizens of 1 state and citizens/subjects of a foreign state
o Residence and citizenship aren’t synonymous
o Citizen = citizen of US and domiciled within the state in
question
 Domicile + intent to remain indefinitely
o Domicile = true fixed, permanent home & principle of
establishment & to which she has intention of returning whenever
she is absent from there.
 Everyone only has 1 domicile
 Changing domiciles requires:
· Establishing physical presence in a new place of
domicile

35
 · Subjective intent of making that new place my
domicile indefinitely
· Otherwise, if both aren’t met, you keep current
domicile until there is physical presence in new
place and the intent to stay.

- Citizens of different states v. citizens of foreign state

o A citizen of a state can sue a foreign ∆
- Foreign state as ¶ v. citizens of a state / different states.

D. Supplemental Jurisdiction
 Jurisdiction over a claim that is part of the same case or controversy as
another claim over which the court has original jurisdiction
- Need: Common Nucleus of Operative Fact.
§ 1367:
- (a) in any civil suit, where the fed district ct would have original
jurisdiction, the district cts will have supplemental jurisdiction over all other
claims that are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy (under
Article 3, US Const).
o Shall include claims that involve the joinder or intervention of
addtl parties
- Fed district cts shall not have supplemental jurisdiction over claims
by ¶s ag persons made parties under intervention, joinder, permissive
joinder, or 3rd party bring-in by ¶ or ∆ .
- It is up to the discretion of the judge – judge may decline the
supplemental.
o If the claim raises a novel or complex (complex ≠ difficult)
issue of state law
o If the state law claim dominates substantially over the claim
that has original jurisdiction
o If district court has dismissed the federal claims
o If for any exceptional circumstances.
Case law from United Mine v. Gibbs:
- Supplemental jurisdiction exists whenever there is a claim within the
constitutional jurisdiction & the relationship between that claim & the claim
outside of jurisdiction permits the conclusion that the entire action before
the court comprises 1 constitutional case. The federal claim, of course, must
have the sufficient substance to confer subject matter on the court. State &
federal claim must derive from common nucleus of operative fact.
Jin v Minstry of State Security:
- 2 Part test to supplemental jurisdiction:
o State claim must share a common nucleus of operative fact
with the federal claim
o Court must conclude that in the interest of judicial economy,
convenience, and fairness support the exercise of supplemental
jurisdiction.

E. Removal
Removal: gives the ∆ to move the state claim to federal court
- A one-way street; can’t motion to move fed ct  state ct.
- § 1441: Removal: state  fed
- § 1446: Procedure for Removal
o Motion filed within 30 days after the receipt of service or
summons

36
 o Must be a short & plain statement of the grounds for removal
with a copies of the process, pleadings, and orders served upon ∆ .
o File motion with district court and then file a copy with state
court
 Nothing shall happen in state court until the case has been
denied removal and remanded to state court.
- § 1447: Procedure for Challenging Removal.
- Diversity: can’t remove cases from state court where the ∆ is a
citizen of that state.
- Fed Question: Can always move to remove fed question.
- If the fed district court makes a mistake and removes it, general
efficiency considerations may trump fairness considerations.
o But it may remand it. (Standard, no bright line rule)

XII. The Erie Problem

In federal court, for diversity jurisdiction only, what law applies: federal or state?
Constitution creates the framework for US litigation
- 1st limitation: personal jurisdiction
- 2nd limitation: subject matter jurisdiction
A. State Courts as Law Makers
The Issue
- § 1652: Rules of Decision Act (RDA)
o Laws of the several states shall be regarded as rules of
decision in civil actions (except where the Constit or Congr Acts
apply)
- Swift v. Tyson
o Holding: that NY case law was not binding on the federal
district so could apply general, federal common law
o Result: led to forum-shopping, and litigant inequality
o Position: federal judges were better at achieving federal
common law

Constitutionalizing the Issue

- Erie v. Tompkins
o Same year that FRCP came out (1938)
o Holding: federal courts must follow both state statutes & case
law in deciding cases for diversity cases
 For substantive law
o Created: more uniformity across courts (less forum-shopping,
litig ≠ )
 Similarly situated cases should receive same treatment in
laws & outcomes
o Overturned Swift bc of federalism principles
 Federal, general common law my not displace state law in
areas where the Constitution has delegated lawmaking
power to the states
B. The Limits of State Power in Federal Court
- Now the question is whether & how to apply procedural law to Erie.
o Erie established that federal courts sitting in a diversity action
were bound to replicate state practices in some circumstances
 Procedural divide in bwtn procedural law & substantive law
- Supreme Court has tried to mediate btwn 2 opposing principles

37
o Erie requires a deference to state courts
o Federal courts are independent judicial system with autonomy.
Interpreting the Constitutional Command of Erie
- Guaranty Trust Co. v. York
o Erie shouldn’t be about procedural / substantive law divide
o The outcome should be the same
o Outcome-determinative Test:
 A state rule that was outcome determinative should be
Expansion
followed, no matter what it is labeled.
of Erie
o Sharply attacks: the proposition that if something is not
“procedural,” it is not governed by Erie.
o Here, used state procedure to prevent unfair results for opting
to go to fed ct.
- Byrd v. Blue Ridge Co-operative
o Sometimes other policies may be sufficiently strong to
Ct is swinging outweigh the outcome determinative test.
back a little o In addition to outcome-determinative, also look at 2 policy
considerations:
 Rights
 Obligations
o Test:
 Would it be outcome determinitive?
· Yes:Use
state law
state lawgoverns
where
· No:cteither
is determining is OK
state/fed
 Is the
thelaw bound
rights & up with the rights and obligations, are there other considerations that call for
federal law? of
obligations
parties. · Yes: Apply fed law
· No: Apply state law
o In Byrd, found that SC state law was not bound up with the
rights & obligations, so it must not be that important. But also found
that there were other considerations (7th A to jury) so the federal law
would trump anyway.
De-Constitutionalizing Erie
- Whether fed courts should follow the state practice is a constitutional
question
- Hanna v. Plumer
o Modified York test:
 Outcome determinative test must be read with the aims of
Erie:
· Stop forum shopping
· Avoid ≠ administration of the laws (litigant
inequity)
o Every procedural variation would be outcome-determinative
o So, look prospectively and see if it will lead to forum shopping
or litigant inequality.
o Take home:
 Do Modified Outcome-Determinitve Test:
· O-D? Based on 2 interests of Erie:
 Forum shopping
 Litigant Inequality
· Y: State Law
· N: Either

 If the conflict is btwn Fed Const & State Law?

· Y:IfFed Const
there is no wins
conflict, just apply
state law
38
 · N: No conflict, presume in harmony- either
 Is the conflict btwn fed statute & state law
· Ask: Did Congr have authority to enact stat?
 Y: Fed statute wins
 N: State law wins
 Is the conflict btwn FRCP & state law?
· Ask: Is FRCP valid (constit & within REA, can’t
enlarge/abridge right)
 Y: FRCP wins
 N: state law wins
 Is the conflict btwn fed judicial practice & state law?
· Apply out-come determinative test:
 Yes, o-d: state law
 No, not o-d: Fed law

Determining the Scope of Federal Law: Avoiding & Accommodating Erie

- Hanna:
o The Erie ruling cannot be used to void a federal rule. As long
as there is a federal statute (that is constitutional) governing
procedural rule, no Erie analysis is necessary.
o Congress has power over procedural matters with respect to
the federal courts. Because Congress has set the rules of civil
procedure for federal courts & bc those rules are constitutional, fed
cts. must follow them.
- Burlington Northern v. Woods & Stewart v. Richoh suggest that the Sup Ct would stretch far to
find an applicable federal law covering the situation
- Limits:
o Gasperini v. Center for Humanities: sign of Sup Ct for
accommodating state law where both state & fed interests were
significant and equal, to apply state law
o Semtek v. Lockheed Martin:
 Key question: The Supreme Court had to decide: what law
does a state court follow in federal claim (diversity court)
preclusions?
· If the preclusion was given by another state
court, the Full Faith and Credit clause of Article IV of
the Constitution holds that state courts must follow
the decisions of other state courts.
· If the preclusion was given by a state and then
¶ brought the case to federal court, there is the Full
Faith and Credit statute. Fed courts to follow the
decisions of state courts as binding.
· If a federal court precluded the claim and then ¶
tried to refile in another fed court, federal common
law (federal judicial decisions) would hold that all
federal courts giver deference to a federal district
court decision.
 Here: state court is Maryland who is trying to figure out
how to interpret a federal court in California who applied
California’s state statute of limitations rule.
 Problem with R 41b: Any dismissal constitutes an
adjudication of merits.
· Lockheed wanted R 41b to decide case bc other
case was dismissed on the merits, and now in
federal court, so 41b should rule.

39
 · But Sup Ct found that if R 41b operated like
that, it would violate Erie by creating substantial
differences between state and federal litigation.
· R41b would enlarge the RDA
 RDA = Rules shall not abridge/enlarge
any substantive right.
· Bc “on the merits” wasn’t really true.
 Basic conclusion:
· Lockheed was trying to promote forum shopping
· State courts should not give federal judgments
from diversity jurisdiction broader scope that it
would give a similar conclusion from that state’s
state court.

XIII. Joinder

- Modern civ pro has 2 features:

o Discovery: depth
o Joinder: breadth
 Jurisdictional problems can limit or defeat joinder
 Rules establish fine line by seeking broad inclusion byt
trying to keep inclusiveness from preventing resolution of
the dispute.
 Any claim or party that is joined has to be on that there is
personal & subject matter jurisdiction
· Remember supplemental jurisdiction § 1367:
common nucleus of operative fact!
A. Joinder of Claims
Joinder of Claims by Plaintiff
- Common Law
o ¶ could only join claims using the same writ but could join
some whether or not the claims were factually related
o A mistake could lead to a demurrer or upsetting the verdict.
- Federal Rules
o Rule 18 permits joinder, but does not compel it
 No compulsory joinder
 A single ¶ can join any and all claims (related or unrelated)
against the ∆
o R 42b: a judge can sever claims for trial convenience.
- Joinder & Jurisdiction
o ¶ can join all claims against ∆
o Potential problem: jurisdiction. Ct may lack subject matter jurisdiction.
 § 1367 Supplemental jurisdiction grants jurisd on 3
variables:
· The basis of the original jurisdiction over the
case
· The identity of the party (¶ or ∆ ) seeking to
invoke supplemental jurisd
· The Rule authorizing the joinder of the
party/claim over whom supplemental jurisdiction is
sought.
Joinder of Counter-Claims by Defendant
- ∆ might have claims against ¶. (“Now that you mention it, I have gripes, too”)
- Common law: ∆ could not join counterclaims

40
- Today, R 13 permits ∆ s to join counterclaims
o Compulsory
 Counterclaim that arises out of the same transaction or
occurrence
· Logical Relation Test: a loose standard that
permits a broad realistic interpretation in the
interest of avoiding a multiplicity of suits. Need
to arise from the same aggregate of operative
facts.
 Must be asserted
o Permissive
 To join permissive counterclaims, must be original
jurisdiction in federal ct or would have to fall under
supplemental jurisdiction
· Common nucleus of operative fact.
 If no original jurisdiction, prob won’t be able to join it bc if
it were same facts then would be compulsory anyway.
B. Joinder of Parties
Joinder of Parties by Plaintiff
- Rule 20a: all persons may join in 1 action as ¶s if they assert any
right to relief jointly, severally, or that they have claims rising out of the
same transaction.
- R 20b & R 42b: vest in the district judge the discretion to separate
trials
- Getting ¶s all together:
o Joinder is good for ¶s, bc easier to prove pattern of events /
similar events if all ¶s are in front of a jury, instead of trying
everything separately.
 Maybe not so good for ¶ atty – gives up control.

o Bad for ∆ s; easier to attack each ¶ story separately than

doing it all together.
- Getting all ∆ s together:
o Good for ¶ bc of issue preclusion
 If lose on 1st one, may lose & may lose ability to go after
the rest.
o Also, jury will see all 5 ∆ s pointing fingers at each other and
jury will likely say obviously 1/5 is guilty, so award ¶ and let ∆ s figure
it out.

- Permissive Joinder: must have 2 prerequisites:

o Same transaction or occurrence / series of transactions &
occurrences
 Logically related events entitle a person to institute a legal
action against another (absolute identity of all events in
not needed.
o Same question of law or fact common to all the parties must
arise in the action
Joinder of Parties by Defendants: 3rd Party Claims
- Rule 14a: ∆ may assert a claim against anyone not a party to the
original action if that 3rd party’s liability is in some way dependent upon the
outcome of the original action.
o Limit: must in some way be derivative of original claim.

41
 o Join 3rd party only when the original ∆ is trying to pass all or
some of the liability onto the 3rd party.
- Derivitive Liability: “If I lose, you pay”
o Indemnity:
 Permissive Counter-claim
 More efficient administratively to have claims in 1 suit
 Minimizes possibility of inconsistent judgments.
 Don’t have to worry about re-litigation.
o Joint Tortfeasors:
 ∆ can bring in 3rd party who was part of it and who should
pay as well.
- ¶ may assert any claim against the 3rd party ∆ arising out of the
same transaction or occurrence that is the subject matter of the ¶‘s claim
against the 3rd party ¶ (the original ∆ ).
o ¶s don’t like when ∆ s bring in 3rd party bc makes case more
costly, more slow, less control
- ¶ may challenge 3rd party ∆
o Did original ∆ deliberately delay?
o Would impleading (bringing a new party into law suit) unduly
delay or complicate trial?
o Would impleading prejudice the 3rd party ∆ (unfair – not
enough time, etc)?
o Whether original ∆ state a claim upon which relief can be
granted (if not, then prob won’t be able to implead)

- Always remember jurisdiction (personal & subject matter)

o Remember 100 mi bulge rule (R 4k1B)
 Gives an extra 100 mi to court’s jurisdiction
 Ask where fed ct house is and draw a 100mi radius
circle ... was ∆ served within 100 mi of that court house?
o Fed subject matter gets a similar boost from § 1367 ...
supplemental jurisdiction shall include claims that involve the joinder
or intervention of addt’l parties.
Joinder by the Rules
- Joinder of Claims = 18 (a): ¶ may join as many claims as she has
against the ∆
- Joinder of Parties = 20 (a): ¶ : all persons may join as co-plaintiffs if
they assert their right to relief jointly, severally or claims arise out of the
same transaction, occurrence, etc. AND if they have the same question of
law or fact.
o ∆ : people can be joined as defendants if there is an asserted
claim against them jointly, severally, or the right to relief stems from
the same transaction, occurrence, etc. AND if they have the same
question of law or fact.
- Joinder of Counterclaims = 13 (a) = allows ∆ s to assert claims
against ¶s. Are either compulsory or permissive.
o 13 (a) = compulsory counterclaims. ∆ must join a claim that arises out of the transaction or
occurrence that is the subject matter of the opposing party’s claim
- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party
(∆ ag ∆ or ¶ ag ¶). For the same transaction that is the subject matter of
the original action or of a counter claim.

42