Civil Procedure OutlineProf Oldfather hellip Spring 2006

I An Overview of Civil Procedure

A The Idea amp 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 amp clients have identical goals

- Tension exists bc they do not have identical goals attys can be sloppy and clients can behave poorlyhellip who bears the burden for a mistake (1) client ndash will sue the atty in a malpractice suit (2) the opposing party ndash will have wasted time and effort (3) give amp take from both sides

B Where Suit can be Brought Factors to determine state or federal Convenience tactics political pressure on

judges amp 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 amp above a monetary

limit- 2 types of jurisdiction

˙ General Jurisdiction can hear any claim unless there is a legal authority saying ldquonordquo (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 statersquo 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 properappropriate ct needs subject matter amp personal jurisdiction - USC sect 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 ldquomayrdquo impose sanctions- Bell v Novick Rule 8a2 short amp plain statement on complaint hellip donrsquot have

to tell specifics but Rule 11 para 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 endalter case bc of jurisdiction method demur or vagueness

o R12b(1)-(5) ldquonot hererdquo not the correct place for disputeo R 12b(6) ldquoso whatrdquo failure to state a claim o R 12e ldquoHuhrdquo vague need a more definite statement

- Answer responds to the allegations in the complainto ldquoItrsquos not truerdquo denial of 1more alleges in complaint Can deny

even if unsure of the trutho ldquoYeah butrdquo Affirmative Defenseo ldquoIt wasnrsquot merdquo 3rd party or cross claim someone else is

responsible Cross Claim assert a claim against another when the para

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 paralsquos claim against

o ldquoWell Irsquove got a gripe of my ownrdquo Counter claim doesnrsquot have to be germane to initial lawsuit Compulsory Counterclaim R 13a A counterclaim that

must be asserted bc it related to the opposing partyrsquos 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 partyrsquos 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 legalfactual 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 amp broke up class action suit into 477 separate suits

- Compulsory Joinder the necessary joinder of a party if in the partyrsquos 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 partiesmdashespecially the paralsquos autonomy

E Discovery Info changes and evolves so need to gather info both informally amp formally Lots of toom for strategy 5 Means of discovery

- Disclosures must reveal certain info wout being asked (names basic docs basis for damages)

- Request for Production of Documents records letters emails photos etc (R 34 from opposing party amp R 45 to subpoena from 3rd party)

- Oral depositions- Written Interrogatories- Phys amp Mental Examinations

2

Butler v Rigby patientdoctor privilege Other privileges spouse religiousF 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 para is ther a rational basis

for jury to conclude for para (donrsquot even think about rsquos info) R 56 Houchens v American Home Assurance Co canrsquot pile inferences on inferences Other methods for pre-trial disposition

- Default judgment judgment entered ag a who failed to plead or defend against paralsquos claim Usually a no-show at trial R 55 default judgm ag

- Dismissal termination of claim without further hearing if para does not obey an order of the court during proceedingshellip R 41b

- Voluntary Dismissal para dismissal at own request or by stipulation of all the parties R 41a

G Trial Date Jury selection opening statement(s) para case-in-chief case Rebuttals

Closing args Jury Instructions Jury deliberations Verdict win 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 personjury could

conclude in favor of para Apl Ct disagrees and enters juryrsquos verdict

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 canrsquot re-litigate same cause of action o Issue preclusion any issue that was actually litigated in 1 action canrsquot be

re-litigated- Separate people can have separate claims

I Appeals Appeals only address the correctness of trials court rulings ndash not the attyrsquos 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

3

Judgment as a matter of law

SJ before trialDV during trialJNOV after trial

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 ldquoWhatrdquo 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 (eg damages attempts to restore) Compensatory ldquoactualrdquo damages to try to make para whole

- Ks usually can only recover ldquoexpectationrdquo damages limited by doctrine of foreseeability

- Can include real and non-economic (pain amp 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 inconvenientnonfeasible 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 paras 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 para- Campbell v State Farm Utah went outside its jurisdiction in punishing State

Farm Degree should be a single digit multiplier look to civil 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 drsquos 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) amp Courts of Common Law (Ct of Law) See R 1

Debate if equitable remedies are preferred to substitutionary

4

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 Irsquove been wronged amp you wronged me Still need a casecontroversy

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 amp TROs

- Inglis amp Sons v ITT 2 Tests for Prelim injunctionso Test 1 para is entitled to a prelim injunction if court finds

para will suffer an irreparable injury if injunction not granted para will probably prevail on the merits In balancing the equities will not be harmed more than para

is helped by injunction Granting the injunction is in the public interest

o Test 2 Balancing test One moving for a prelim injunction has the burden of

demonstrating either a combination of probable success and the possibility of irreparable -- or ndash that serious questions are raised and the balance of hardships tips sharply in her favor

- R 65a Prelim injunctionso R 65a2 Temp Restraining Order immediate without notice a

preliminary prelim injunction Go to court wout wout knowing to ask for an order to prevent from doing somethingTRO Preliminary Injunction Trial (permanent inj)

Formality of process- Public interest must be considered- Other processes for provisional monetary relief

o Attachment involves seizure of propertyo Garnishment ask a 3rd party not to pay $ bc para has a claim on it

Provisional Remedies amp Due Process- 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 (eg drugs domestic violence)

- Fuentes v Shevin FL Writ of replevlin was a violation of 14th A DPC Situations for postponing notice amp hearing

o Seizure is direct necessary to secure an important gov general public interest

o Special need for very prompt actiono 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 interesto The risk of an erroneous deprivation of such interest through the

procedures usedo The Govrsquos interest including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural requirement would entail

5

Ct adopts

A type of specific performance

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 Short amp plain statement on jurisdictiono Short amp plain statement of claimo Demand for judgmentrelief

- Purpose notice to the opposing party notice of events amp notice of the legal right the para asserts

- Idea allow para to proceed to discovery unless it appears beyond a doubt that the para can prove no supporting facts to claim that would give para relief

- Exception Rule 9(b) in cases of fraud or mistake claims will be stated with ldquoparticularityrdquo Thatrsquos heightened pleading

- A complaint may suffice even if it does not allege all elements of a cause of action

o Ex Negligence complaint court amp may be OK if para does not specifically allege all neglg elements (duty breach cause drsquos)

- Also para does not need to allege or spell out every fact exact conduct that was negligent

- Judges have discretion on how much leeway- But para should watch for Rule 11 or 12 if para has not alleged an element and

doubts that the para has grounds could motion to dismiss- Relationship btwn Rule 8 amp 11

o Rule 8 complaint need only have ldquobare allegationsrdquoo Rule 11 requires atty to have investigated and have

evidentiary support for factual allegations o From the paralsquos standpoint when atty signs complaint atty is

supposed to have done all the investigation necessary to support complaint But atty doesnrsquot need to put that research into complaint Therefore there might be a tendency on the part of the para atty to cut corners and ultimately violate Rule 11

The Functions of PleadingDilatory Pleas Preemptory pleas

(responses that delay suit but donrsquot address merits of case) (grapple with legal amp factual merits of a claim)Challenges to jurisdiction

ldquonot hererdquoDemurrer

conceded the truth of allegations but questioned their legal sufficiency ldquoso whatrdquo

Pleas in suspension challenged paralsquos right to bring action until some

problem was solved ldquonot nowrdquo

TraverseConceded the legal sufficiency but denied the factual

allegations as true ldquonot truerdquoPleas in Abatement

challenged various other procedural defects in the complaint (eg spelling another claim btwn parties)

ldquonot until defect has been solvedrdquo

Confession amp AvoidanceConceded the truth of facts and the legal sufficiency

but alleged different facts that changed their significance ldquoyes butrdquo

NowRule 12 (b)(1)-(5)

NowDemurrer = Rule 12b6

Traverse = 8b (defense)Confession amp Avoid = Rule 8c (affirmative defense)

- 2 kinds of common law responses to allegations

6

Responsive Pleading = Answer

- These are all now found in Rule 12 b (1)-(5)

- Rule 12 b (6) para has failed to state a claim upon which relief may be grantedo 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 processo 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 amp ethically alter it so that it will withstand a 2nd motion to dismiss

- Haddle v Garrison o Distinction btwn fact amp law is gray events have a legal significance o If parties disagree about

What happened Summary Judgment Given everything that para has shown no reasonable fact

finder could find for para Legal significance of same facts R 12b6

Given all of paras facts are true para does not have a claim No fact-finder needed

o Legal conclusion is law- Consistency in Pleading Rule 8e2

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 trialsettlement 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 amp client conducto Makes standards immediately relevanto Establishes an interlocking set of standards procedures amp sanctions

a mini-regulatory regime that affects but does not directly regulate the entire conduct of litigation

o 11a signature w phone number amp 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

7

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

canrsquot do addtrsquol investigation wout discovery

Denials of facts are warranted on evidence or are based on a lack of infobelief

o 11b2a clients arenrsquot responsible for attyrsquos error of law o 11 b3 A party could be sanctioned for making up factso 11 c provides for sanctions either my a separate motion (within 21

days) or by courtrsquos 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 sanctiono 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

o Fraud or mistake bc punitive damages (remedial purpose) labeling behavior as deceitful stigma

o Need to say ldquowhyrdquo 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 amp complaint oro Within 60 days after the date when the request for waiver was sent if

the summons has been timely waived oro Within 90 days for a with an address outside any judicial district in

the US Pre-Answer Motion

- Rule 7b Motions o Must be in writing with specific relief soughto Need notice of the motion to the other party

8

R 12a

12 b motions1 subject matter jurisd2 personal jurisd3 venue4 insufficiency of process (defect)5 insufficiency of service of process (defect in method)6 failureclaim7 failure to join

o Any info necessary for granting the motion o Memo explaining with reference to the facts of the case and to

supporting authorities the basis for the motion- Pre-answer motions include

o Reasons why the court should not processo Assertions that the complaint (even if true) provides no basis for relief

soughto Denialso Affirmative Defenseso Requests for clarification andor more information

- If pre-answer motion is denied then have 10 days to file an answer

- If donrsquot make motions within time period then waives them (R 12g h)o Except for jurisdiction ndash thatrsquos whenever

- Can combine pre-answer motions in the motion

Answer

- If cannot make a 12b motion then must respond to its factual allegations

- Denialso R 8b Defenses

shall admit or deny allegations in complaint If a party doesnrsquot know ndash then so state and it will be treated

like a denial

Dilatory Pleas(responses that delay suit but donrsquot address merits of case)

Challenges to jurisdiction ldquonot hererdquo

Pleas in suspension challenged paralsquos right to bring action until some

problem was solved ldquonot nowrdquoPleas in Abatement

challenged various other procedural defects in the complaint (eg spelling another claim btwn parties)

ldquonot until defect has been solvedrdquoNow

Rule 12 (b)(1)-(5)

Preemptory pleas(grapple with legal amp factual merits of a claim)

Demurrer conceded the truth of allegations but questioned

their legal sufficiency ldquoso whatrdquoNow 12b6

Preemptory pleas(grapple with legal amp factual merits of a claim)

TraverseConceded the legal sufficiency but denied the factual

allegations as true ldquonot truerdquoConfession amp Avoidance

Conceded the truth of facts and the legal sufficiency but alleged different facts that changed their

significance ldquoyes butrdquoNow

Traverse = 8b (defense)Confession amp Avoid = Rule 8c (affirmative defense)

9

Waiver triggers

12 g amp 12 h

12 e motionmore definitive statement

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 amp no response effect of a denial General denial careful Only when you really deny everything

Ineffective Have to admit the truth in complaint amp answer

Except if you donrsquot know deny

- Affirmative Defenseso Line between factual denial amp affirmative defense is blurry

Affirm Best but then has the burdeno 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 amp facts may change as the

suit develops particularly from discovery- Common for parties to learn that their initial understanding of their

claimsdefenses were wrong or incomplete- Rule 15 governs between 2 goals justice amp prejudice

o Justice = easy amendment so that pleadings can reflect partiesrsquo changed view of the case

o Prejudice = Canrsquot burden the other side will be burdened if storyargument continues to shift

- Two typeso 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

lsquoclosesrsquo 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 amp no time limit either just have to amend before an answer to the counterclaim is filed

o Amendments with leave of court (judgersquos permission consent of other party) R 15 a Most common type of amendment

10

R 15Leave to amend shall be freely

given when justice so requires

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 partiesrsquo 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 partiesrsquo 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

As trial approaches ct becomes less flexible Tension btwn 2 goals (justice amp prejudice) increases

R 15 makes no distinction btwn factual amp legal changes to the pleadings

- Statute of Limitations amp R 15 Not a defense to amendmentso As long as para 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 Canrsquot add an unrelated claim ndash must arise out of the same transaction

IV Discovery

A Modern Discovery Discovery = interplay of relevance privilege amp 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 claimdefense) Discovery Rules establish 3 stages

- Requirement of mandatory disclosure- Provision for further discovery (limited to claims amp defenses)- Provision for broader discovery if party demonstrates lsquogood causersquo 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 providepermit 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 amp Limits Relevance amp Privilege

11

- To be discoverable info must be relevant amp not privileged- Info may be discoverable even though it wonrsquot canrsquot be admissible as

evidence at trial Relevance

- Relevant links discovery ndash law of pleading ndash law of evidence ndash common sense- Still not entitled to all discovery that is relevant- Relevant reasons for event occurring not potential other reasons party

could have used- 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 ndash cliento doctor ndash patiento therapist ndash patiento religious minister ndash 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 amp 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 Computations of damages claimed (make copies allow for

inspection of docs available) or insurance agreements Must be made in writing signed amp served If donrsquot disclose a witnessinfo used R 37c1 will likely bar the

party from using it (unless it is harmless) Duty to supplement this info when more info becomes

available R 26 e1o 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 amp counsel discuss the way discovery amp other pre-trial

matters should proceedo Parties cannot use interrogs deps or any other means before basic

info is exchangedo Exempt categories from initial disclosure (see R 26a1E)

12

ExampleMay 1 Initial mtgMay 14 Last day to exchange basic infoMay 21 Scheduling ConfAll with duty to supplement

Action for review on an administrative record Petition for habeas corpus other proceeding to challenge a

criminal conviction sentence An action brought wout 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 Addtrsquol 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 amp discretionary limits imposed by the judge

Depositions- Deposition = a witnessrsquo sworn out-of-court testimony that is reduced to

writing for later use in court or for discovery purposes- Oral deposition

o Occur in an atty office with all attys present the witness amp court reporter or recording device

o If deposing a non-party send a subpoena to ensure presenceo Counsel doesnrsquot cross-examine unless need clarificationo Deposition may be admitted at trial if witness canrsquot testify in persono Total number of depositions by one side may not exceed 10o No deposition can exceed 7 hrs in one dayo No one can get deposed more than once wout court or opposing

party permissiono A party may depose an organization or corporation orgcorp will

appoint an agent(s) to testify on its behalfo Motion to terminate or limit deposition must be made in a non-

argumentative non-suggestive amp concise mannero If counsel or witnessparty 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

13

R 28 30 31 amp 32

o Atty writes down questions sends them to a ct reporter at the deposition who asks the question and records the witnessrsquo 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 amp 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 amp Inspection of Documents amp Things- Document = any medium of information (email letter photo video

etc)o No limit to of docs requestedo Can only hold back doc if going to use it for perjury

- Procedureo Party send a R 34 request

Request must describe documents sought with reasonable particularity

Permissible to describe the requested documents by categoryo Non-party send a subpoena issued under R 45a1C

- The burden of productiono Party may comply with production by producing relevant

documents as kept in the normal course of businesso Problems with letting the requesting party weed through files

Provides the other party access to irrevelant info Access to files waives the compelled partyrsquos objection

to production of materials that are protected from discovery

Doesnrsquot save time ndash will have to go through files anyway to see what files the other side has seen

- For Physical Mental Exams must show lsquogood causersquo (R 35)o Only can examine people who are parties or who are in the custody of

parties o These custody3rd party ndash 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 doesnrsquot 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 amp

objections Punishes parties for unjustified requests amp refusals Suggest that atty fees will be an approp sanction for most

violations

14

o R 37 Series of devices designed to elicit info or respond to partiesrsquo refusal to supply info Some sanctions are available on the occurrence of

misbehavior (R 37 dampg) 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 amp

29) E-Discovery

D Discovery in an Adversarial System Privilege amp 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 Must be documents or tangible things Prepared in anticipation of a trial litigation Prepared by or for another party or by or for that partyrsquos

representativeo 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 wonrsquot if It reveals mental impressions conclusion opinions or legal

theories of counselo 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 amp testify- 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 amp the expertise is relevanto Experts range from regular professionals to exotic professionals

15

Work Product Doctrine

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 amp

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 amp party canrsquot 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 amp Creatively Bad can demonstrate one-sidedness greed amp 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 para might settle for less

- Settlements control risko Getting something is better than nothingo Trials are unpredictable amp all-or-nothingo Trials are expensive (donrsquot know how long either)

- Factors for companies to consider settlingo Investors bad press

- Contracting to Dismisso Release simplest form of settlement is a K where para 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 decisionso Parties can settle via phone meeting or exchanging docso No ct approval needed for settlement

Exceptions minors class actions multi cases (R 23 e3)

16

Prefiling agreement not to sue

Voluntary dismissal amp agreement not to sue

Dismissal with prejudice

o Settlements are binding Ks that can be attacked on the grounds of fraud duress mistake incapacity unconscionability etc

o Written settlements should contain all basic info amp must be signed and dated

o Prefiling agreements not to sue eliminate all litigation costs and carefully define scope of threatened law suit

o If para sues anyway should use R 8c affirmative defense being the arbitration amp award or should move for summary judgment (R 56b)

o If breaks settlement terms para should sue for breach of Ko Dismissal of Actions

Voluntary Dismissal para voluntarily dismisses claim before answer is filed Valuable to donrsquot need to acceptdeny para claims Valuable to para 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 para 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 donrsquot need to start all over again in back of line (like a breach of K for broken settlement)

A consent decree invokes the courtrsquos jurisdiction to enforce the settlement

Aka stipulated judgmento 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 risko 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- 3rd Party Participation in Settlement Facilitation Encouragement amp Coercion

o Mediation = assisted negotiation = for when settlements fail Goal agreement Positional mediation as what it will take to settle the case Interest mediation discovering monetary amp 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 amp 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 pointless

17

R 56

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 factso If there is an issue of material fact it might change the outcome of

the caseo If there is a genuine dispute of the issue a reasonable jury 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 hearsayo Canrsquot just offer a conclusion need supporting factso A moving party always bears the initial responsibility for informing

district ct of the basis for the motiono No requirement that moving party is required to support its motion

with affidavits etc to negate the non-moving partyrsquos claimo 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 canrsquot reply that evidence is forthcoming If so then use R 56f

If adverse (non-moving) party wins SJ doesnrsquot 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 partyrsquo favor considering which party has the burden

- To wino Moving Party with burden introduce evidence to make their claimo Moving Party wno burden claim that non-moving party doesnrsquot 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

Ctrsquos 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 partyo Yes SJ is not appropriateo No SJ is appropriate

18

Ways to knock out a casePre-answer motion amp SJ

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 donrsquot 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 judgeso 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 judgersquos bias bc a judge still rules on good amount of decisions during the trial

Procedure for recusing judge 28 USC sect 455- Where judge has

o Served as an atty in the matter in controversyo Served in gov employment amp expressed an opinion concerning the

merits of the particular case controversyo 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 amp 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)o Jury trial = R 38o Does not indicate scope of the righto 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 juryApplying the Historical Test to New Claims

- 2 part testo Compare action to actions that were available in 1791o Determine the remedy sought

Only ask 2nd question is there is no appropriate analogy Exceptions Jury wonrsquot hear cases about damages if

Damages are restitutionary

19

Monetary award intertwines with injunction

- Can waive right to jury trial by failing to raise righto 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 para seeks equitable remedies amp counter-claims are money both are entitled to a jury trial

- If para 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 adjudicationo 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 juryrsquos boundaries in their role as

decision makero Law of evidenceo Power instruction juryo Directed verdicto JNOVo 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

K case

para seeks $$ damages Jury

para seeks specific perf Judge

para seeks reformation Judge

para seeks rescindment Judgee

Nuisance property case

para seeks damages Jury

para seeks injunction Judge

Stolen ring

para seeks to recover value (trover) Jury

para seeks to recover the ring

(replevlin)

Jury

Wrongful occupation of property

para seeks damages Jury

para seeks to eject Jury

20

Need some proof of what happened evidence canrsquot 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 amp 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 amp the system of jury trial

dictate the particular forms by which the system tries to assure rationality and its limits

Juries Democracy amp 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 amp 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 lsquopreponderance of evidencersquo = 51o Only matters in a perfectly balanced case which party carries the

burden of persuasion (only when it is 5050 that burden matters)

- Burden of Productiono Basic idea party who bears the burden of production has to produce

each evidence in support of each elemento Party who has the burden of persuasion also have the burden of

productiono para has the burden for the elements of the claim and has the burden

for the affirmative defenseo Requires party to produce find amp present evidenceo Summary Judgment relies on burden of production

Need sufficient evidence to allow a rational trier of fact to find in her favor

o Meeting onersquos burden does not mean that the trier of fact has to rule in your favor only that they are able to

Controlling Juries Before the Verdict- Directed Verdict

o Judgment as a matter of law before vedicto Purpose to take the case away from the jury on the ground that the

evidence is insufficient to support a verdict for the para (R 50a)o First opportunity after paralsquos case Last opportunity before the Jury

Instructions

21

Can move for a directed verdict multiple timeso No 7th A violation

For 7th A need a casecontroversy (legitimate dispute) Constitutional role of fact-finder is not required

o Ct will only look at all evidence from both sides amp ask ldquois there a substantial conflict in evidence

Need a substantial amnt not a scintillao 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 amp substance issues

Can motion multiple timeso 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 wonrsquot reach verdicts

that canrsquot be sustained by the evidence Screen jury to elimination jurors who will likely

reach irrational verdicts (bc of sympathies or dimness)

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 juryo Prerequisite a motion for a directed verdict

Donrsquot move for a DV canrsquot move for a JNOV Purpose of Prerequisite

Preserves sufficiency of the evidence as a question of law

Calls the court amp partyrsquos 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 scripto Judges should not let cases go to jury without a sufficient amount of

evidenceo JNOVrsquos almost always result in an appeal

Only motion denied that can be immediately appealedo Little authority for the standard for reviewing a trial judgersquos JNOVo Credibility issues are always for the jury (Judge shouldnrsquot be 13th

juror)- New Trial

o Granting JNOV = wrong winnero New trial = a start-over not a declaration of who should have wono 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

22

Judgment as a Matter of Law- Directed verdict (R 50a)

before jury- JNOV (R 50b) after jury

Verdict Problem Bad instructions given or jury didnrsquot understand

instructions ldquoJNOV literdquo Judge doesnrsquot want to direct a verdict so will try it

again Judge will rule on new trial amp JNOV motion

together (R 59d)o No interlocutory appeals for new trials in federal ct

VIII Respect for Judgments

- Procedural rules serve 2 purposeso Air disputes completely and reach and accurate amp just outcomeo Seek to end disputes even if outcome is less than desirable

- Finality statutes of limitation claim preclusion amp issue preclusion- Claim preclusion forbids a party from relitigating a claim that should have

been raised in former litigationo Claim preclusion = ldquores judicatardquoo Goals efficiency finality consistent results

- Issue preclusion when some issue involved in that claim has been previously litigatedo Issue preclusion = ldquocollateral estoppelrdquo

A Claim Preclusion Res judicata Same claim amp same parties 4 prerequisites needed

- Claim in 2nd action must be same claim that was litigated in the 1st action- Parties must be the same- Judgment rendered in 1st action must be final- Judgment must have been rendered on the merits of the case

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 para litigated a subset of all available

disputes between the parties in the 1st suit

- Restatement Test of what is a claimo When a valid and final judgment rendered in an action extinguishes a

paralsquos claim the claim extinguished all right of the para to remedies against the with respect 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 ldquotransactionrdquo and what groupings constitute a ldquoseriesrdquo 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 partiesrsquo expectations or business understanding or usage

Between the Same Parties- Claim preclusion only works between those who were the parties to both the

1st amp 2nd lawsuits

23

Note claims that could not be joined will not be barred by claim preclusion

Interrelated by same transaction or series of transactions

2 Constitutional Prerequisites 1- Notice 2- Actual parties must know that they are repping the interests of others

JNOV = R 50New trial = R 59

- Generally separate individuals are regarded as having separate claims- Several exceptions

o Privity an ongoing or contractual relationship (most important)o Substantive Legal relationship ex successive ownership of land with

easements 1 party sues to enforce the easement against the 2nd party amp wins 2nd party sells to 3rd party ndash 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 amp Claim Preclusiono Was the issue decided in the proper adjudication identical with the

issue presented in the action in questiono Was there a final judgmento Was the party against whom the plea is asserted a party or a person

in privity with a party in the prior adjudicationo Was the issue in the 1st case competently fully amp 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 ldquoOn the Meritsrdquo- Not all judgments receive preclusive effect- Cts may attach preclusive effect bc

o Ct actually considered and ruled on the merits of the caseo 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 effecto Full jury trial = Yes preclusive effecto Directed verdict = Yes preclusive effecto Summary Judgment = Yes preclusive effecto 12b6 = depends

Sup Ct has ruled that a dismissal 12b6 ruling is a judgment on the merits

But states have different rules amp 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 amp Compulsory Counterclaims

- Failure to bring a compulsory counterclaim precludes from bringing it againo 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 amp essential to prior judgment- Need an issue of fact or law that was actually litigated and determined by a

valid amp final judgment and the determination is essential to the judgment

24

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 amp 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 litigationo Evidence to the record = trial transcript jury instructions

Between Which Parties- The ldquoVictimrdquo of Preclusion

o Old common law mutuality was a requirement for both claim amp 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 amp 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 wifersquos victory

New rule husband can take advantage of issue preclusion to prevent RR re-litigating case bc RR already had a full amp fair opportunity to litigate

Victim bc if RR won in 1st case canrsquot take advantage bc husband was not a party in the 1st case

- The Precludero General rule where a para 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 para uses the prior determination like a sword

para tries to hold to prior outcome (where litigated amp lost) Good for paras can wait amp 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 para already lost suing another on same issue

o Remember 2 goals of issue preclusion Consistency of verdicts Efficiency

25

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

- Pre-answer Motions requests to the t that it do something to endalter case bc of jurisdiction method demur or vagueness

o R12b(1)-(5) ldquonot hererdquo not the correct place for disputeo R 12b(6) ldquoso whatrdquo failure to state a claim o R 12e ldquoHuhrdquo vague need a more definite statement

- Answer responds to the allegations in the complainto ldquoItrsquos not truerdquo denial of 1more alleges in complaint Can deny

even if unsure of the trutho ldquoYeah butrdquo Affirmative Defenseo ldquoIt wasnrsquot merdquo 3rd party or cross claim someone else is

responsible Cross Claim assert a claim against another when the para

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 paralsquos claim against

o ldquoWell Irsquove got a gripe of my ownrdquo Counter claim doesnrsquot have to be germane to initial lawsuit Compulsory Counterclaim R 13a A counterclaim that

must be asserted bc it related to the opposing partyrsquos 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 partyrsquos 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 legalfactual 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 amp broke up class action suit into 477 separate suits

- Compulsory Joinder the necessary joinder of a party if in the partyrsquos 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 partiesmdashespecially the paralsquos autonomy

E Discovery Info changes and evolves so need to gather info both informally amp formally Lots of toom for strategy 5 Means of discovery

- Disclosures must reveal certain info wout being asked (names basic docs basis for damages)

- Request for Production of Documents records letters emails photos etc (R 34 from opposing party amp R 45 to subpoena from 3rd party)

- Oral depositions- Written Interrogatories- Phys amp Mental Examinations

2

Butler v Rigby patientdoctor privilege Other privileges spouse religiousF 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 para is ther a rational basis

for jury to conclude for para (donrsquot even think about rsquos info) R 56 Houchens v American Home Assurance Co canrsquot pile inferences on inferences Other methods for pre-trial disposition

- Default judgment judgment entered ag a who failed to plead or defend against paralsquos claim Usually a no-show at trial R 55 default judgm ag

- Dismissal termination of claim without further hearing if para does not obey an order of the court during proceedingshellip R 41b

- Voluntary Dismissal para dismissal at own request or by stipulation of all the parties R 41a

G Trial Date Jury selection opening statement(s) para case-in-chief case Rebuttals

Closing args Jury Instructions Jury deliberations Verdict win 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 personjury could

conclude in favor of para Apl Ct disagrees and enters juryrsquos verdict

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 canrsquot re-litigate same cause of action o Issue preclusion any issue that was actually litigated in 1 action canrsquot be

re-litigated- Separate people can have separate claims

I Appeals Appeals only address the correctness of trials court rulings ndash not the attyrsquos 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

3

Judgment as a matter of law

SJ before trialDV during trialJNOV after trial

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 ldquoWhatrdquo 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 (eg damages attempts to restore) Compensatory ldquoactualrdquo damages to try to make para whole

- Ks usually can only recover ldquoexpectationrdquo damages limited by doctrine of foreseeability

- Can include real and non-economic (pain amp 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 inconvenientnonfeasible 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 paras 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 para- Campbell v State Farm Utah went outside its jurisdiction in punishing State

Farm Degree should be a single digit multiplier look to civil 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 drsquos 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) amp Courts of Common Law (Ct of Law) See R 1

Debate if equitable remedies are preferred to substitutionary

4

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 Irsquove been wronged amp you wronged me Still need a casecontroversy

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 amp TROs

- Inglis amp Sons v ITT 2 Tests for Prelim injunctionso Test 1 para is entitled to a prelim injunction if court finds

para will suffer an irreparable injury if injunction not granted para will probably prevail on the merits In balancing the equities will not be harmed more than para

is helped by injunction Granting the injunction is in the public interest

o Test 2 Balancing test One moving for a prelim injunction has the burden of

demonstrating either a combination of probable success and the possibility of irreparable -- or ndash that serious questions are raised and the balance of hardships tips sharply in her favor

- R 65a Prelim injunctionso R 65a2 Temp Restraining Order immediate without notice a

preliminary prelim injunction Go to court wout wout knowing to ask for an order to prevent from doing somethingTRO Preliminary Injunction Trial (permanent inj)

Formality of process- Public interest must be considered- Other processes for provisional monetary relief

o Attachment involves seizure of propertyo Garnishment ask a 3rd party not to pay $ bc para has a claim on it

Provisional Remedies amp Due Process- 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 (eg drugs domestic violence)

- Fuentes v Shevin FL Writ of replevlin was a violation of 14th A DPC Situations for postponing notice amp hearing

o Seizure is direct necessary to secure an important gov general public interest

o Special need for very prompt actiono 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 interesto The risk of an erroneous deprivation of such interest through the

procedures usedo The Govrsquos interest including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural requirement would entail

5

Ct adopts

A type of specific performance

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 Short amp plain statement on jurisdictiono Short amp plain statement of claimo Demand for judgmentrelief

- Purpose notice to the opposing party notice of events amp notice of the legal right the para asserts

- Idea allow para to proceed to discovery unless it appears beyond a doubt that the para can prove no supporting facts to claim that would give para relief

- Exception Rule 9(b) in cases of fraud or mistake claims will be stated with ldquoparticularityrdquo Thatrsquos heightened pleading

- A complaint may suffice even if it does not allege all elements of a cause of action

o Ex Negligence complaint court amp may be OK if para does not specifically allege all neglg elements (duty breach cause drsquos)

- Also para does not need to allege or spell out every fact exact conduct that was negligent

- Judges have discretion on how much leeway- But para should watch for Rule 11 or 12 if para has not alleged an element and

doubts that the para has grounds could motion to dismiss- Relationship btwn Rule 8 amp 11

o Rule 8 complaint need only have ldquobare allegationsrdquoo Rule 11 requires atty to have investigated and have

evidentiary support for factual allegations o From the paralsquos standpoint when atty signs complaint atty is

supposed to have done all the investigation necessary to support complaint But atty doesnrsquot need to put that research into complaint Therefore there might be a tendency on the part of the para atty to cut corners and ultimately violate Rule 11

The Functions of PleadingDilatory Pleas Preemptory pleas

(responses that delay suit but donrsquot address merits of case) (grapple with legal amp factual merits of a claim)Challenges to jurisdiction

ldquonot hererdquoDemurrer

conceded the truth of allegations but questioned their legal sufficiency ldquoso whatrdquo

Pleas in suspension challenged paralsquos right to bring action until some

problem was solved ldquonot nowrdquo

TraverseConceded the legal sufficiency but denied the factual

allegations as true ldquonot truerdquoPleas in Abatement

challenged various other procedural defects in the complaint (eg spelling another claim btwn parties)

ldquonot until defect has been solvedrdquo

Confession amp AvoidanceConceded the truth of facts and the legal sufficiency

but alleged different facts that changed their significance ldquoyes butrdquo

NowRule 12 (b)(1)-(5)

NowDemurrer = Rule 12b6

Traverse = 8b (defense)Confession amp Avoid = Rule 8c (affirmative defense)

- 2 kinds of common law responses to allegations

6

Responsive Pleading = Answer

- These are all now found in Rule 12 b (1)-(5)

- Rule 12 b (6) para has failed to state a claim upon which relief may be grantedo 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 processo 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 amp ethically alter it so that it will withstand a 2nd motion to dismiss

- Haddle v Garrison o Distinction btwn fact amp law is gray events have a legal significance o If parties disagree about

What happened Summary Judgment Given everything that para has shown no reasonable fact

finder could find for para Legal significance of same facts R 12b6

Given all of paras facts are true para does not have a claim No fact-finder needed

o Legal conclusion is law- Consistency in Pleading Rule 8e2

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 trialsettlement 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 amp client conducto Makes standards immediately relevanto Establishes an interlocking set of standards procedures amp sanctions

a mini-regulatory regime that affects but does not directly regulate the entire conduct of litigation

o 11a signature w phone number amp 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

7

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

canrsquot do addtrsquol investigation wout discovery

Denials of facts are warranted on evidence or are based on a lack of infobelief

o 11b2a clients arenrsquot responsible for attyrsquos error of law o 11 b3 A party could be sanctioned for making up factso 11 c provides for sanctions either my a separate motion (within 21

days) or by courtrsquos 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 sanctiono 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

o Fraud or mistake bc punitive damages (remedial purpose) labeling behavior as deceitful stigma

o Need to say ldquowhyrdquo 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 amp complaint oro Within 60 days after the date when the request for waiver was sent if

the summons has been timely waived oro Within 90 days for a with an address outside any judicial district in

the US Pre-Answer Motion

- Rule 7b Motions o Must be in writing with specific relief soughto Need notice of the motion to the other party

8

R 12a

12 b motions1 subject matter jurisd2 personal jurisd3 venue4 insufficiency of process (defect)5 insufficiency of service of process (defect in method)6 failureclaim7 failure to join

o Any info necessary for granting the motion o Memo explaining with reference to the facts of the case and to

supporting authorities the basis for the motion- Pre-answer motions include

o Reasons why the court should not processo Assertions that the complaint (even if true) provides no basis for relief

soughto Denialso Affirmative Defenseso Requests for clarification andor more information

- If pre-answer motion is denied then have 10 days to file an answer

- If donrsquot make motions within time period then waives them (R 12g h)o Except for jurisdiction ndash thatrsquos whenever

- Can combine pre-answer motions in the motion

Answer

- If cannot make a 12b motion then must respond to its factual allegations

- Denialso R 8b Defenses

shall admit or deny allegations in complaint If a party doesnrsquot know ndash then so state and it will be treated

like a denial

Dilatory Pleas(responses that delay suit but donrsquot address merits of case)

Challenges to jurisdiction ldquonot hererdquo

Pleas in suspension challenged paralsquos right to bring action until some

problem was solved ldquonot nowrdquoPleas in Abatement

challenged various other procedural defects in the complaint (eg spelling another claim btwn parties)

ldquonot until defect has been solvedrdquoNow

Rule 12 (b)(1)-(5)

Preemptory pleas(grapple with legal amp factual merits of a claim)

Demurrer conceded the truth of allegations but questioned

their legal sufficiency ldquoso whatrdquoNow 12b6

Preemptory pleas(grapple with legal amp factual merits of a claim)

TraverseConceded the legal sufficiency but denied the factual

allegations as true ldquonot truerdquoConfession amp Avoidance

Conceded the truth of facts and the legal sufficiency but alleged different facts that changed their

significance ldquoyes butrdquoNow

Traverse = 8b (defense)Confession amp Avoid = Rule 8c (affirmative defense)

9

Waiver triggers

12 g amp 12 h

12 e motionmore definitive statement

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 amp no response effect of a denial General denial careful Only when you really deny everything

Ineffective Have to admit the truth in complaint amp answer

Except if you donrsquot know deny

- Affirmative Defenseso Line between factual denial amp affirmative defense is blurry

Affirm Best but then has the burdeno 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 amp facts may change as the

suit develops particularly from discovery- Common for parties to learn that their initial understanding of their

claimsdefenses were wrong or incomplete- Rule 15 governs between 2 goals justice amp prejudice

o Justice = easy amendment so that pleadings can reflect partiesrsquo changed view of the case

o Prejudice = Canrsquot burden the other side will be burdened if storyargument continues to shift

- Two typeso 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

lsquoclosesrsquo 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 amp no time limit either just have to amend before an answer to the counterclaim is filed

o Amendments with leave of court (judgersquos permission consent of other party) R 15 a Most common type of amendment

10

R 15Leave to amend shall be freely

given when justice so requires

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 partiesrsquo 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 partiesrsquo 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

As trial approaches ct becomes less flexible Tension btwn 2 goals (justice amp prejudice) increases

R 15 makes no distinction btwn factual amp legal changes to the pleadings

- Statute of Limitations amp R 15 Not a defense to amendmentso As long as para 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 Canrsquot add an unrelated claim ndash must arise out of the same transaction

IV Discovery

A Modern Discovery Discovery = interplay of relevance privilege amp 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 claimdefense) Discovery Rules establish 3 stages

- Requirement of mandatory disclosure- Provision for further discovery (limited to claims amp defenses)- Provision for broader discovery if party demonstrates lsquogood causersquo 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 providepermit 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 amp Limits Relevance amp Privilege

11

- To be discoverable info must be relevant amp not privileged- Info may be discoverable even though it wonrsquot canrsquot be admissible as

evidence at trial Relevance

- Relevant links discovery ndash law of pleading ndash law of evidence ndash common sense- Still not entitled to all discovery that is relevant- Relevant reasons for event occurring not potential other reasons party

could have used- 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 ndash cliento doctor ndash patiento therapist ndash patiento religious minister ndash 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 amp 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 Computations of damages claimed (make copies allow for

inspection of docs available) or insurance agreements Must be made in writing signed amp served If donrsquot disclose a witnessinfo used R 37c1 will likely bar the

party from using it (unless it is harmless) Duty to supplement this info when more info becomes

available R 26 e1o 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 amp counsel discuss the way discovery amp other pre-trial

matters should proceedo Parties cannot use interrogs deps or any other means before basic

info is exchangedo Exempt categories from initial disclosure (see R 26a1E)

12

ExampleMay 1 Initial mtgMay 14 Last day to exchange basic infoMay 21 Scheduling ConfAll with duty to supplement

Action for review on an administrative record Petition for habeas corpus other proceeding to challenge a

criminal conviction sentence An action brought wout 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 Addtrsquol 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 amp discretionary limits imposed by the judge

Depositions- Deposition = a witnessrsquo sworn out-of-court testimony that is reduced to

writing for later use in court or for discovery purposes- Oral deposition

o Occur in an atty office with all attys present the witness amp court reporter or recording device

o If deposing a non-party send a subpoena to ensure presenceo Counsel doesnrsquot cross-examine unless need clarificationo Deposition may be admitted at trial if witness canrsquot testify in persono Total number of depositions by one side may not exceed 10o No deposition can exceed 7 hrs in one dayo No one can get deposed more than once wout court or opposing

party permissiono A party may depose an organization or corporation orgcorp will

appoint an agent(s) to testify on its behalfo Motion to terminate or limit deposition must be made in a non-

argumentative non-suggestive amp concise mannero If counsel or witnessparty 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

13

R 28 30 31 amp 32

o Atty writes down questions sends them to a ct reporter at the deposition who asks the question and records the witnessrsquo 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 amp 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 amp Inspection of Documents amp Things- Document = any medium of information (email letter photo video

etc)o No limit to of docs requestedo Can only hold back doc if going to use it for perjury

- Procedureo Party send a R 34 request

Request must describe documents sought with reasonable particularity

Permissible to describe the requested documents by categoryo Non-party send a subpoena issued under R 45a1C

- The burden of productiono Party may comply with production by producing relevant

documents as kept in the normal course of businesso Problems with letting the requesting party weed through files

Provides the other party access to irrevelant info Access to files waives the compelled partyrsquos objection

to production of materials that are protected from discovery

Doesnrsquot save time ndash will have to go through files anyway to see what files the other side has seen

- For Physical Mental Exams must show lsquogood causersquo (R 35)o Only can examine people who are parties or who are in the custody of

parties o These custody3rd party ndash 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 doesnrsquot 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 amp

objections Punishes parties for unjustified requests amp refusals Suggest that atty fees will be an approp sanction for most

violations

14

o R 37 Series of devices designed to elicit info or respond to partiesrsquo refusal to supply info Some sanctions are available on the occurrence of

misbehavior (R 37 dampg) 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 amp

29) E-Discovery

D Discovery in an Adversarial System Privilege amp 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 Must be documents or tangible things Prepared in anticipation of a trial litigation Prepared by or for another party or by or for that partyrsquos

representativeo 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 wonrsquot if It reveals mental impressions conclusion opinions or legal

theories of counselo 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 amp testify- 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 amp the expertise is relevanto Experts range from regular professionals to exotic professionals

15

Work Product Doctrine

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 amp

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 amp party canrsquot 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 amp Creatively Bad can demonstrate one-sidedness greed amp 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 para might settle for less

- Settlements control risko Getting something is better than nothingo Trials are unpredictable amp all-or-nothingo Trials are expensive (donrsquot know how long either)

- Factors for companies to consider settlingo Investors bad press

- Contracting to Dismisso Release simplest form of settlement is a K where para 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 decisionso Parties can settle via phone meeting or exchanging docso No ct approval needed for settlement

Exceptions minors class actions multi cases (R 23 e3)

16

Prefiling agreement not to sue

Voluntary dismissal amp agreement not to sue

Dismissal with prejudice

o Settlements are binding Ks that can be attacked on the grounds of fraud duress mistake incapacity unconscionability etc

o Written settlements should contain all basic info amp must be signed and dated

o Prefiling agreements not to sue eliminate all litigation costs and carefully define scope of threatened law suit

o If para sues anyway should use R 8c affirmative defense being the arbitration amp award or should move for summary judgment (R 56b)

o If breaks settlement terms para should sue for breach of Ko Dismissal of Actions

Voluntary Dismissal para voluntarily dismisses claim before answer is filed Valuable to donrsquot need to acceptdeny para claims Valuable to para 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 para 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 donrsquot need to start all over again in back of line (like a breach of K for broken settlement)

A consent decree invokes the courtrsquos jurisdiction to enforce the settlement

Aka stipulated judgmento 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 risko 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- 3rd Party Participation in Settlement Facilitation Encouragement amp Coercion

o Mediation = assisted negotiation = for when settlements fail Goal agreement Positional mediation as what it will take to settle the case Interest mediation discovering monetary amp 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 amp 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 pointless

17

R 56

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 factso If there is an issue of material fact it might change the outcome of

the caseo If there is a genuine dispute of the issue a reasonable jury 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 hearsayo Canrsquot just offer a conclusion need supporting factso A moving party always bears the initial responsibility for informing

district ct of the basis for the motiono No requirement that moving party is required to support its motion

with affidavits etc to negate the non-moving partyrsquos claimo 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 canrsquot reply that evidence is forthcoming If so then use R 56f

If adverse (non-moving) party wins SJ doesnrsquot 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 partyrsquo favor considering which party has the burden

- To wino Moving Party with burden introduce evidence to make their claimo Moving Party wno burden claim that non-moving party doesnrsquot 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

Ctrsquos 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 partyo Yes SJ is not appropriateo No SJ is appropriate

18

Ways to knock out a casePre-answer motion amp SJ

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 donrsquot 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 judgeso 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 judgersquos bias bc a judge still rules on good amount of decisions during the trial

Procedure for recusing judge 28 USC sect 455- Where judge has

o Served as an atty in the matter in controversyo Served in gov employment amp expressed an opinion concerning the

merits of the particular case controversyo 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 amp 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)o Jury trial = R 38o Does not indicate scope of the righto 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 juryApplying the Historical Test to New Claims

- 2 part testo Compare action to actions that were available in 1791o Determine the remedy sought

Only ask 2nd question is there is no appropriate analogy Exceptions Jury wonrsquot hear cases about damages if

Damages are restitutionary

19

Monetary award intertwines with injunction

- Can waive right to jury trial by failing to raise righto 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 para seeks equitable remedies amp counter-claims are money both are entitled to a jury trial

- If para 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 adjudicationo 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 juryrsquos boundaries in their role as

decision makero Law of evidenceo Power instruction juryo Directed verdicto JNOVo 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

K case

para seeks $$ damages Jury

para seeks specific perf Judge

para seeks reformation Judge

para seeks rescindment Judgee

Nuisance property case

para seeks damages Jury

para seeks injunction Judge

Stolen ring

para seeks to recover value (trover) Jury

para seeks to recover the ring

(replevlin)

Jury

Wrongful occupation of property

para seeks damages Jury

para seeks to eject Jury

20

Need some proof of what happened evidence canrsquot 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 amp 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 amp the system of jury trial

dictate the particular forms by which the system tries to assure rationality and its limits

Juries Democracy amp 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 amp 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 lsquopreponderance of evidencersquo = 51o Only matters in a perfectly balanced case which party carries the

burden of persuasion (only when it is 5050 that burden matters)

- Burden of Productiono Basic idea party who bears the burden of production has to produce

each evidence in support of each elemento Party who has the burden of persuasion also have the burden of

productiono para has the burden for the elements of the claim and has the burden

for the affirmative defenseo Requires party to produce find amp present evidenceo Summary Judgment relies on burden of production

Need sufficient evidence to allow a rational trier of fact to find in her favor

o Meeting onersquos burden does not mean that the trier of fact has to rule in your favor only that they are able to

Controlling Juries Before the Verdict- Directed Verdict

o Judgment as a matter of law before vedicto Purpose to take the case away from the jury on the ground that the

evidence is insufficient to support a verdict for the para (R 50a)o First opportunity after paralsquos case Last opportunity before the Jury

Instructions

21

Can move for a directed verdict multiple timeso No 7th A violation

For 7th A need a casecontroversy (legitimate dispute) Constitutional role of fact-finder is not required

o Ct will only look at all evidence from both sides amp ask ldquois there a substantial conflict in evidence

Need a substantial amnt not a scintillao 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 amp substance issues

Can motion multiple timeso 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 wonrsquot reach verdicts

that canrsquot be sustained by the evidence Screen jury to elimination jurors who will likely

reach irrational verdicts (bc of sympathies or dimness)

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 juryo Prerequisite a motion for a directed verdict

Donrsquot move for a DV canrsquot move for a JNOV Purpose of Prerequisite

Preserves sufficiency of the evidence as a question of law

Calls the court amp partyrsquos 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 scripto Judges should not let cases go to jury without a sufficient amount of

evidenceo JNOVrsquos almost always result in an appeal

Only motion denied that can be immediately appealedo Little authority for the standard for reviewing a trial judgersquos JNOVo Credibility issues are always for the jury (Judge shouldnrsquot be 13th

juror)- New Trial

o Granting JNOV = wrong winnero New trial = a start-over not a declaration of who should have wono 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

22

Judgment as a Matter of Law- Directed verdict (R 50a)

before jury- JNOV (R 50b) after jury

Verdict Problem Bad instructions given or jury didnrsquot understand

instructions ldquoJNOV literdquo Judge doesnrsquot want to direct a verdict so will try it

again Judge will rule on new trial amp JNOV motion

together (R 59d)o No interlocutory appeals for new trials in federal ct

VIII Respect for Judgments

- Procedural rules serve 2 purposeso Air disputes completely and reach and accurate amp just outcomeo Seek to end disputes even if outcome is less than desirable

- Finality statutes of limitation claim preclusion amp issue preclusion- Claim preclusion forbids a party from relitigating a claim that should have

been raised in former litigationo Claim preclusion = ldquores judicatardquoo Goals efficiency finality consistent results

- Issue preclusion when some issue involved in that claim has been previously litigatedo Issue preclusion = ldquocollateral estoppelrdquo

A Claim Preclusion Res judicata Same claim amp same parties 4 prerequisites needed

- Claim in 2nd action must be same claim that was litigated in the 1st action- Parties must be the same- Judgment rendered in 1st action must be final- Judgment must have been rendered on the merits of the case

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 para litigated a subset of all available

disputes between the parties in the 1st suit

- Restatement Test of what is a claimo When a valid and final judgment rendered in an action extinguishes a

paralsquos claim the claim extinguished all right of the para to remedies against the with respect 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 ldquotransactionrdquo and what groupings constitute a ldquoseriesrdquo 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 partiesrsquo expectations or business understanding or usage

Between the Same Parties- Claim preclusion only works between those who were the parties to both the

1st amp 2nd lawsuits

23

Note claims that could not be joined will not be barred by claim preclusion

Interrelated by same transaction or series of transactions

2 Constitutional Prerequisites 1- Notice 2- Actual parties must know that they are repping the interests of others

JNOV = R 50New trial = R 59

- Generally separate individuals are regarded as having separate claims- Several exceptions

o Privity an ongoing or contractual relationship (most important)o Substantive Legal relationship ex successive ownership of land with

easements 1 party sues to enforce the easement against the 2nd party amp wins 2nd party sells to 3rd party ndash 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 amp Claim Preclusiono Was the issue decided in the proper adjudication identical with the

issue presented in the action in questiono Was there a final judgmento Was the party against whom the plea is asserted a party or a person

in privity with a party in the prior adjudicationo Was the issue in the 1st case competently fully amp 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 ldquoOn the Meritsrdquo- Not all judgments receive preclusive effect- Cts may attach preclusive effect bc

o Ct actually considered and ruled on the merits of the caseo 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 effecto Full jury trial = Yes preclusive effecto Directed verdict = Yes preclusive effecto Summary Judgment = Yes preclusive effecto 12b6 = depends

Sup Ct has ruled that a dismissal 12b6 ruling is a judgment on the merits

But states have different rules amp 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 amp Compulsory Counterclaims

- Failure to bring a compulsory counterclaim precludes from bringing it againo 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 amp essential to prior judgment- Need an issue of fact or law that was actually litigated and determined by a

valid amp final judgment and the determination is essential to the judgment

24

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 amp 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 litigationo Evidence to the record = trial transcript jury instructions

Between Which Parties- The ldquoVictimrdquo of Preclusion

o Old common law mutuality was a requirement for both claim amp 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 amp 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 wifersquos victory

New rule husband can take advantage of issue preclusion to prevent RR re-litigating case bc RR already had a full amp fair opportunity to litigate

Victim bc if RR won in 1st case canrsquot take advantage bc husband was not a party in the 1st case

- The Precludero General rule where a para 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 para uses the prior determination like a sword

para tries to hold to prior outcome (where litigated amp lost) Good for paras can wait amp 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 para already lost suing another on same issue

o Remember 2 goals of issue preclusion Consistency of verdicts Efficiency

25

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

Butler v Rigby patientdoctor privilege Other privileges spouse religiousF 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 para is ther a rational basis

for jury to conclude for para (donrsquot even think about rsquos info) R 56 Houchens v American Home Assurance Co canrsquot pile inferences on inferences Other methods for pre-trial disposition

- Default judgment judgment entered ag a who failed to plead or defend against paralsquos claim Usually a no-show at trial R 55 default judgm ag

- Dismissal termination of claim without further hearing if para does not obey an order of the court during proceedingshellip R 41b

- Voluntary Dismissal para dismissal at own request or by stipulation of all the parties R 41a

G Trial Date Jury selection opening statement(s) para case-in-chief case Rebuttals

Closing args Jury Instructions Jury deliberations Verdict win 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 personjury could

conclude in favor of para Apl Ct disagrees and enters juryrsquos verdict

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 canrsquot re-litigate same cause of action o Issue preclusion any issue that was actually litigated in 1 action canrsquot be

re-litigated- Separate people can have separate claims

I Appeals Appeals only address the correctness of trials court rulings ndash not the attyrsquos 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

3

Judgment as a matter of law

SJ before trialDV during trialJNOV after trial

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 ldquoWhatrdquo 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 (eg damages attempts to restore) Compensatory ldquoactualrdquo damages to try to make para whole

- Ks usually can only recover ldquoexpectationrdquo damages limited by doctrine of foreseeability

- Can include real and non-economic (pain amp 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 inconvenientnonfeasible 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 paras 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 para- Campbell v State Farm Utah went outside its jurisdiction in punishing State

Farm Degree should be a single digit multiplier look to civil 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 drsquos 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) amp Courts of Common Law (Ct of Law) See R 1

Debate if equitable remedies are preferred to substitutionary

4

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 Irsquove been wronged amp you wronged me Still need a casecontroversy

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 amp TROs

- Inglis amp Sons v ITT 2 Tests for Prelim injunctionso Test 1 para is entitled to a prelim injunction if court finds

para will suffer an irreparable injury if injunction not granted para will probably prevail on the merits In balancing the equities will not be harmed more than para

is helped by injunction Granting the injunction is in the public interest

o Test 2 Balancing test One moving for a prelim injunction has the burden of

demonstrating either a combination of probable success and the possibility of irreparable -- or ndash that serious questions are raised and the balance of hardships tips sharply in her favor

- R 65a Prelim injunctionso R 65a2 Temp Restraining Order immediate without notice a

preliminary prelim injunction Go to court wout wout knowing to ask for an order to prevent from doing somethingTRO Preliminary Injunction Trial (permanent inj)

Formality of process- Public interest must be considered- Other processes for provisional monetary relief

o Attachment involves seizure of propertyo Garnishment ask a 3rd party not to pay $ bc para has a claim on it

Provisional Remedies amp Due Process- 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 (eg drugs domestic violence)

- Fuentes v Shevin FL Writ of replevlin was a violation of 14th A DPC Situations for postponing notice amp hearing

o Seizure is direct necessary to secure an important gov general public interest

o Special need for very prompt actiono 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 interesto The risk of an erroneous deprivation of such interest through the

procedures usedo The Govrsquos interest including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural requirement would entail

5

Ct adopts

A type of specific performance

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 Short amp plain statement on jurisdictiono Short amp plain statement of claimo Demand for judgmentrelief

- Purpose notice to the opposing party notice of events amp notice of the legal right the para asserts

- Idea allow para to proceed to discovery unless it appears beyond a doubt that the para can prove no supporting facts to claim that would give para relief

- Exception Rule 9(b) in cases of fraud or mistake claims will be stated with ldquoparticularityrdquo Thatrsquos heightened pleading

- A complaint may suffice even if it does not allege all elements of a cause of action

o Ex Negligence complaint court amp may be OK if para does not specifically allege all neglg elements (duty breach cause drsquos)

- Also para does not need to allege or spell out every fact exact conduct that was negligent

- Judges have discretion on how much leeway- But para should watch for Rule 11 or 12 if para has not alleged an element and

doubts that the para has grounds could motion to dismiss- Relationship btwn Rule 8 amp 11

o Rule 8 complaint need only have ldquobare allegationsrdquoo Rule 11 requires atty to have investigated and have

evidentiary support for factual allegations o From the paralsquos standpoint when atty signs complaint atty is

supposed to have done all the investigation necessary to support complaint But atty doesnrsquot need to put that research into complaint Therefore there might be a tendency on the part of the para atty to cut corners and ultimately violate Rule 11

The Functions of PleadingDilatory Pleas Preemptory pleas

(responses that delay suit but donrsquot address merits of case) (grapple with legal amp factual merits of a claim)Challenges to jurisdiction

ldquonot hererdquoDemurrer

conceded the truth of allegations but questioned their legal sufficiency ldquoso whatrdquo

Pleas in suspension challenged paralsquos right to bring action until some

problem was solved ldquonot nowrdquo

TraverseConceded the legal sufficiency but denied the factual

allegations as true ldquonot truerdquoPleas in Abatement

challenged various other procedural defects in the complaint (eg spelling another claim btwn parties)

ldquonot until defect has been solvedrdquo

Confession amp AvoidanceConceded the truth of facts and the legal sufficiency

but alleged different facts that changed their significance ldquoyes butrdquo

NowRule 12 (b)(1)-(5)

NowDemurrer = Rule 12b6

Traverse = 8b (defense)Confession amp Avoid = Rule 8c (affirmative defense)

- 2 kinds of common law responses to allegations

6

Responsive Pleading = Answer

- These are all now found in Rule 12 b (1)-(5)

- Rule 12 b (6) para has failed to state a claim upon which relief may be grantedo 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 processo 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 amp ethically alter it so that it will withstand a 2nd motion to dismiss

- Haddle v Garrison o Distinction btwn fact amp law is gray events have a legal significance o If parties disagree about

What happened Summary Judgment Given everything that para has shown no reasonable fact

finder could find for para Legal significance of same facts R 12b6

Given all of paras facts are true para does not have a claim No fact-finder needed

o Legal conclusion is law- Consistency in Pleading Rule 8e2

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 trialsettlement 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 amp client conducto Makes standards immediately relevanto Establishes an interlocking set of standards procedures amp sanctions

a mini-regulatory regime that affects but does not directly regulate the entire conduct of litigation

o 11a signature w phone number amp 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

7

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

canrsquot do addtrsquol investigation wout discovery

Denials of facts are warranted on evidence or are based on a lack of infobelief

o 11b2a clients arenrsquot responsible for attyrsquos error of law o 11 b3 A party could be sanctioned for making up factso 11 c provides for sanctions either my a separate motion (within 21

days) or by courtrsquos 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 sanctiono 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

o Fraud or mistake bc punitive damages (remedial purpose) labeling behavior as deceitful stigma

o Need to say ldquowhyrdquo 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 amp complaint oro Within 60 days after the date when the request for waiver was sent if

the summons has been timely waived oro Within 90 days for a with an address outside any judicial district in

the US Pre-Answer Motion

- Rule 7b Motions o Must be in writing with specific relief soughto Need notice of the motion to the other party

8

R 12a

12 b motions1 subject matter jurisd2 personal jurisd3 venue4 insufficiency of process (defect)5 insufficiency of service of process (defect in method)6 failureclaim7 failure to join

o Any info necessary for granting the motion o Memo explaining with reference to the facts of the case and to

supporting authorities the basis for the motion- Pre-answer motions include

o Reasons why the court should not processo Assertions that the complaint (even if true) provides no basis for relief

soughto Denialso Affirmative Defenseso Requests for clarification andor more information

- If pre-answer motion is denied then have 10 days to file an answer

- If donrsquot make motions within time period then waives them (R 12g h)o Except for jurisdiction ndash thatrsquos whenever

- Can combine pre-answer motions in the motion

Answer

- If cannot make a 12b motion then must respond to its factual allegations

- Denialso R 8b Defenses

shall admit or deny allegations in complaint If a party doesnrsquot know ndash then so state and it will be treated

like a denial

Dilatory Pleas(responses that delay suit but donrsquot address merits of case)

Challenges to jurisdiction ldquonot hererdquo

Pleas in suspension challenged paralsquos right to bring action until some

problem was solved ldquonot nowrdquoPleas in Abatement

challenged various other procedural defects in the complaint (eg spelling another claim btwn parties)

ldquonot until defect has been solvedrdquoNow

Rule 12 (b)(1)-(5)

Preemptory pleas(grapple with legal amp factual merits of a claim)

Demurrer conceded the truth of allegations but questioned

their legal sufficiency ldquoso whatrdquoNow 12b6

Preemptory pleas(grapple with legal amp factual merits of a claim)

TraverseConceded the legal sufficiency but denied the factual

allegations as true ldquonot truerdquoConfession amp Avoidance

Conceded the truth of facts and the legal sufficiency but alleged different facts that changed their

significance ldquoyes butrdquoNow

Traverse = 8b (defense)Confession amp Avoid = Rule 8c (affirmative defense)

9

Waiver triggers

12 g amp 12 h

12 e motionmore definitive statement

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 amp no response effect of a denial General denial careful Only when you really deny everything

Ineffective Have to admit the truth in complaint amp answer

Except if you donrsquot know deny

- Affirmative Defenseso Line between factual denial amp affirmative defense is blurry

Affirm Best but then has the burdeno 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 amp facts may change as the

suit develops particularly from discovery- Common for parties to learn that their initial understanding of their

claimsdefenses were wrong or incomplete- Rule 15 governs between 2 goals justice amp prejudice

o Justice = easy amendment so that pleadings can reflect partiesrsquo changed view of the case

o Prejudice = Canrsquot burden the other side will be burdened if storyargument continues to shift

- Two typeso 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

lsquoclosesrsquo 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 amp no time limit either just have to amend before an answer to the counterclaim is filed

o Amendments with leave of court (judgersquos permission consent of other party) R 15 a Most common type of amendment

10

R 15Leave to amend shall be freely

given when justice so requires

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 partiesrsquo 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 partiesrsquo 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

As trial approaches ct becomes less flexible Tension btwn 2 goals (justice amp prejudice) increases

R 15 makes no distinction btwn factual amp legal changes to the pleadings

- Statute of Limitations amp R 15 Not a defense to amendmentso As long as para 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 Canrsquot add an unrelated claim ndash must arise out of the same transaction

IV Discovery

A Modern Discovery Discovery = interplay of relevance privilege amp 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 claimdefense) Discovery Rules establish 3 stages

- Requirement of mandatory disclosure- Provision for further discovery (limited to claims amp defenses)- Provision for broader discovery if party demonstrates lsquogood causersquo 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 providepermit 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 amp Limits Relevance amp Privilege

11

- To be discoverable info must be relevant amp not privileged- Info may be discoverable even though it wonrsquot canrsquot be admissible as

evidence at trial Relevance

- Relevant links discovery ndash law of pleading ndash law of evidence ndash common sense- Still not entitled to all discovery that is relevant- Relevant reasons for event occurring not potential other reasons party

could have used- 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 ndash cliento doctor ndash patiento therapist ndash patiento religious minister ndash 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 amp 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 Computations of damages claimed (make copies allow for

inspection of docs available) or insurance agreements Must be made in writing signed amp served If donrsquot disclose a witnessinfo used R 37c1 will likely bar the

party from using it (unless it is harmless) Duty to supplement this info when more info becomes

available R 26 e1o 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 amp counsel discuss the way discovery amp other pre-trial

matters should proceedo Parties cannot use interrogs deps or any other means before basic

info is exchangedo Exempt categories from initial disclosure (see R 26a1E)

12

ExampleMay 1 Initial mtgMay 14 Last day to exchange basic infoMay 21 Scheduling ConfAll with duty to supplement

Action for review on an administrative record Petition for habeas corpus other proceeding to challenge a

criminal conviction sentence An action brought wout 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 Addtrsquol 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 amp discretionary limits imposed by the judge

Depositions- Deposition = a witnessrsquo sworn out-of-court testimony that is reduced to

writing for later use in court or for discovery purposes- Oral deposition

o Occur in an atty office with all attys present the witness amp court reporter or recording device

o If deposing a non-party send a subpoena to ensure presenceo Counsel doesnrsquot cross-examine unless need clarificationo Deposition may be admitted at trial if witness canrsquot testify in persono Total number of depositions by one side may not exceed 10o No deposition can exceed 7 hrs in one dayo No one can get deposed more than once wout court or opposing

party permissiono A party may depose an organization or corporation orgcorp will

appoint an agent(s) to testify on its behalfo Motion to terminate or limit deposition must be made in a non-

argumentative non-suggestive amp concise mannero If counsel or witnessparty 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

13

R 28 30 31 amp 32

o Atty writes down questions sends them to a ct reporter at the deposition who asks the question and records the witnessrsquo 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 amp 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 amp Inspection of Documents amp Things- Document = any medium of information (email letter photo video

etc)o No limit to of docs requestedo Can only hold back doc if going to use it for perjury

- Procedureo Party send a R 34 request

Request must describe documents sought with reasonable particularity

Permissible to describe the requested documents by categoryo Non-party send a subpoena issued under R 45a1C

- The burden of productiono Party may comply with production by producing relevant

documents as kept in the normal course of businesso Problems with letting the requesting party weed through files

Provides the other party access to irrevelant info Access to files waives the compelled partyrsquos objection

to production of materials that are protected from discovery

Doesnrsquot save time ndash will have to go through files anyway to see what files the other side has seen

- For Physical Mental Exams must show lsquogood causersquo (R 35)o Only can examine people who are parties or who are in the custody of

parties o These custody3rd party ndash 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 doesnrsquot 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 amp

objections Punishes parties for unjustified requests amp refusals Suggest that atty fees will be an approp sanction for most

violations

14

o R 37 Series of devices designed to elicit info or respond to partiesrsquo refusal to supply info Some sanctions are available on the occurrence of

misbehavior (R 37 dampg) 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 amp

29) E-Discovery

D Discovery in an Adversarial System Privilege amp 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 Must be documents or tangible things Prepared in anticipation of a trial litigation Prepared by or for another party or by or for that partyrsquos

representativeo 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 wonrsquot if It reveals mental impressions conclusion opinions or legal

theories of counselo 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 amp testify- 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 amp the expertise is relevanto Experts range from regular professionals to exotic professionals

15

Work Product Doctrine

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 amp

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 amp party canrsquot 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 amp Creatively Bad can demonstrate one-sidedness greed amp 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 para might settle for less

- Settlements control risko Getting something is better than nothingo Trials are unpredictable amp all-or-nothingo Trials are expensive (donrsquot know how long either)

- Factors for companies to consider settlingo Investors bad press

- Contracting to Dismisso Release simplest form of settlement is a K where para 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 decisionso Parties can settle via phone meeting or exchanging docso No ct approval needed for settlement

Exceptions minors class actions multi cases (R 23 e3)

16

Prefiling agreement not to sue

Voluntary dismissal amp agreement not to sue

Dismissal with prejudice

o Settlements are binding Ks that can be attacked on the grounds of fraud duress mistake incapacity unconscionability etc

o Written settlements should contain all basic info amp must be signed and dated

o Prefiling agreements not to sue eliminate all litigation costs and carefully define scope of threatened law suit

o If para sues anyway should use R 8c affirmative defense being the arbitration amp award or should move for summary judgment (R 56b)

o If breaks settlement terms para should sue for breach of Ko Dismissal of Actions

Voluntary Dismissal para voluntarily dismisses claim before answer is filed Valuable to donrsquot need to acceptdeny para claims Valuable to para 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 para 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 donrsquot need to start all over again in back of line (like a breach of K for broken settlement)

A consent decree invokes the courtrsquos jurisdiction to enforce the settlement

Aka stipulated judgmento 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 risko 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- 3rd Party Participation in Settlement Facilitation Encouragement amp Coercion

o Mediation = assisted negotiation = for when settlements fail Goal agreement Positional mediation as what it will take to settle the case Interest mediation discovering monetary amp 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 amp 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 pointless

17

R 56

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 factso If there is an issue of material fact it might change the outcome of

the caseo If there is a genuine dispute of the issue a reasonable jury 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 hearsayo Canrsquot just offer a conclusion need supporting factso A moving party always bears the initial responsibility for informing

district ct of the basis for the motiono No requirement that moving party is required to support its motion

with affidavits etc to negate the non-moving partyrsquos claimo 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 canrsquot reply that evidence is forthcoming If so then use R 56f

If adverse (non-moving) party wins SJ doesnrsquot 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 partyrsquo favor considering which party has the burden

- To wino Moving Party with burden introduce evidence to make their claimo Moving Party wno burden claim that non-moving party doesnrsquot 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

Ctrsquos 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 partyo Yes SJ is not appropriateo No SJ is appropriate

18

Ways to knock out a casePre-answer motion amp SJ

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 donrsquot 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 judgeso 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 judgersquos bias bc a judge still rules on good amount of decisions during the trial

Procedure for recusing judge 28 USC sect 455- Where judge has

o Served as an atty in the matter in controversyo Served in gov employment amp expressed an opinion concerning the

merits of the particular case controversyo 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 amp 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)o Jury trial = R 38o Does not indicate scope of the righto 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 juryApplying the Historical Test to New Claims

- 2 part testo Compare action to actions that were available in 1791o Determine the remedy sought

Only ask 2nd question is there is no appropriate analogy Exceptions Jury wonrsquot hear cases about damages if

Damages are restitutionary

19

Monetary award intertwines with injunction

- Can waive right to jury trial by failing to raise righto 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 para seeks equitable remedies amp counter-claims are money both are entitled to a jury trial

- If para 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 adjudicationo 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 juryrsquos boundaries in their role as

decision makero Law of evidenceo Power instruction juryo Directed verdicto JNOVo 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

K case

para seeks $$ damages Jury

para seeks specific perf Judge

para seeks reformation Judge

para seeks rescindment Judgee

Nuisance property case

para seeks damages Jury

para seeks injunction Judge

Stolen ring

para seeks to recover value (trover) Jury

para seeks to recover the ring

(replevlin)

Jury

Wrongful occupation of property

para seeks damages Jury

para seeks to eject Jury

20

Need some proof of what happened evidence canrsquot 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 amp 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 amp the system of jury trial

dictate the particular forms by which the system tries to assure rationality and its limits

Juries Democracy amp 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 amp 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 lsquopreponderance of evidencersquo = 51o Only matters in a perfectly balanced case which party carries the

burden of persuasion (only when it is 5050 that burden matters)

- Burden of Productiono Basic idea party who bears the burden of production has to produce

each evidence in support of each elemento Party who has the burden of persuasion also have the burden of

productiono para has the burden for the elements of the claim and has the burden

for the affirmative defenseo Requires party to produce find amp present evidenceo Summary Judgment relies on burden of production

Need sufficient evidence to allow a rational trier of fact to find in her favor

o Meeting onersquos burden does not mean that the trier of fact has to rule in your favor only that they are able to

Controlling Juries Before the Verdict- Directed Verdict

o Judgment as a matter of law before vedicto Purpose to take the case away from the jury on the ground that the

evidence is insufficient to support a verdict for the para (R 50a)o First opportunity after paralsquos case Last opportunity before the Jury

Instructions

21

Can move for a directed verdict multiple timeso No 7th A violation

For 7th A need a casecontroversy (legitimate dispute) Constitutional role of fact-finder is not required

o Ct will only look at all evidence from both sides amp ask ldquois there a substantial conflict in evidence

Need a substantial amnt not a scintillao 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 amp substance issues

Can motion multiple timeso 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 wonrsquot reach verdicts

that canrsquot be sustained by the evidence Screen jury to elimination jurors who will likely

reach irrational verdicts (bc of sympathies or dimness)

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 juryo Prerequisite a motion for a directed verdict

Donrsquot move for a DV canrsquot move for a JNOV Purpose of Prerequisite

Preserves sufficiency of the evidence as a question of law

Calls the court amp partyrsquos 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 scripto Judges should not let cases go to jury without a sufficient amount of

evidenceo JNOVrsquos almost always result in an appeal

Only motion denied that can be immediately appealedo Little authority for the standard for reviewing a trial judgersquos JNOVo Credibility issues are always for the jury (Judge shouldnrsquot be 13th

juror)- New Trial

o Granting JNOV = wrong winnero New trial = a start-over not a declaration of who should have wono 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

22

Judgment as a Matter of Law- Directed verdict (R 50a)

before jury- JNOV (R 50b) after jury

Verdict Problem Bad instructions given or jury didnrsquot understand

instructions ldquoJNOV literdquo Judge doesnrsquot want to direct a verdict so will try it

again Judge will rule on new trial amp JNOV motion

together (R 59d)o No interlocutory appeals for new trials in federal ct

VIII Respect for Judgments

- Procedural rules serve 2 purposeso Air disputes completely and reach and accurate amp just outcomeo Seek to end disputes even if outcome is less than desirable

- Finality statutes of limitation claim preclusion amp issue preclusion- Claim preclusion forbids a party from relitigating a claim that should have

been raised in former litigationo Claim preclusion = ldquores judicatardquoo Goals efficiency finality consistent results

- Issue preclusion when some issue involved in that claim has been previously litigatedo Issue preclusion = ldquocollateral estoppelrdquo

A Claim Preclusion Res judicata Same claim amp same parties 4 prerequisites needed

- Claim in 2nd action must be same claim that was litigated in the 1st action- Parties must be the same- Judgment rendered in 1st action must be final- Judgment must have been rendered on the merits of the case

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 para litigated a subset of all available

disputes between the parties in the 1st suit

- Restatement Test of what is a claimo When a valid and final judgment rendered in an action extinguishes a

paralsquos claim the claim extinguished all right of the para to remedies against the with respect 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 ldquotransactionrdquo and what groupings constitute a ldquoseriesrdquo 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 partiesrsquo expectations or business understanding or usage

Between the Same Parties- Claim preclusion only works between those who were the parties to both the

1st amp 2nd lawsuits

23

Note claims that could not be joined will not be barred by claim preclusion

Interrelated by same transaction or series of transactions

2 Constitutional Prerequisites 1- Notice 2- Actual parties must know that they are repping the interests of others

JNOV = R 50New trial = R 59

- Generally separate individuals are regarded as having separate claims- Several exceptions

o Privity an ongoing or contractual relationship (most important)o Substantive Legal relationship ex successive ownership of land with

easements 1 party sues to enforce the easement against the 2nd party amp wins 2nd party sells to 3rd party ndash 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 amp Claim Preclusiono Was the issue decided in the proper adjudication identical with the

issue presented in the action in questiono Was there a final judgmento Was the party against whom the plea is asserted a party or a person

in privity with a party in the prior adjudicationo Was the issue in the 1st case competently fully amp 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 ldquoOn the Meritsrdquo- Not all judgments receive preclusive effect- Cts may attach preclusive effect bc

o Ct actually considered and ruled on the merits of the caseo 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 effecto Full jury trial = Yes preclusive effecto Directed verdict = Yes preclusive effecto Summary Judgment = Yes preclusive effecto 12b6 = depends

Sup Ct has ruled that a dismissal 12b6 ruling is a judgment on the merits

But states have different rules amp 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 amp Compulsory Counterclaims

- Failure to bring a compulsory counterclaim precludes from bringing it againo 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 amp essential to prior judgment- Need an issue of fact or law that was actually litigated and determined by a

valid amp final judgment and the determination is essential to the judgment

24

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 amp 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 litigationo Evidence to the record = trial transcript jury instructions

Between Which Parties- The ldquoVictimrdquo of Preclusion

o Old common law mutuality was a requirement for both claim amp 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 amp 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 wifersquos victory

New rule husband can take advantage of issue preclusion to prevent RR re-litigating case bc RR already had a full amp fair opportunity to litigate

Victim bc if RR won in 1st case canrsquot take advantage bc husband was not a party in the 1st case

- The Precludero General rule where a para 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 para uses the prior determination like a sword

para tries to hold to prior outcome (where litigated amp lost) Good for paras can wait amp 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 para already lost suing another on same issue

o Remember 2 goals of issue preclusion Consistency of verdicts Efficiency

25

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

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 ldquoWhatrdquo 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 (eg damages attempts to restore) Compensatory ldquoactualrdquo damages to try to make para whole

- Ks usually can only recover ldquoexpectationrdquo damages limited by doctrine of foreseeability

- Can include real and non-economic (pain amp 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 inconvenientnonfeasible 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 paras 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 para- Campbell v State Farm Utah went outside its jurisdiction in punishing State

Farm Degree should be a single digit multiplier look to civil 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 drsquos 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) amp Courts of Common Law (Ct of Law) See R 1

Debate if equitable remedies are preferred to substitutionary

4

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 Irsquove been wronged amp you wronged me Still need a casecontroversy

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 amp TROs

- Inglis amp Sons v ITT 2 Tests for Prelim injunctionso Test 1 para is entitled to a prelim injunction if court finds

para will suffer an irreparable injury if injunction not granted para will probably prevail on the merits In balancing the equities will not be harmed more than para

is helped by injunction Granting the injunction is in the public interest

o Test 2 Balancing test One moving for a prelim injunction has the burden of

demonstrating either a combination of probable success and the possibility of irreparable -- or ndash that serious questions are raised and the balance of hardships tips sharply in her favor

- R 65a Prelim injunctionso R 65a2 Temp Restraining Order immediate without notice a

preliminary prelim injunction Go to court wout wout knowing to ask for an order to prevent from doing somethingTRO Preliminary Injunction Trial (permanent inj)

Formality of process- Public interest must be considered- Other processes for provisional monetary relief

o Attachment involves seizure of propertyo Garnishment ask a 3rd party not to pay $ bc para has a claim on it

Provisional Remedies amp Due Process- 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 (eg drugs domestic violence)

- Fuentes v Shevin FL Writ of replevlin was a violation of 14th A DPC Situations for postponing notice amp hearing

o Seizure is direct necessary to secure an important gov general public interest

o Special need for very prompt actiono 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 interesto The risk of an erroneous deprivation of such interest through the

procedures usedo The Govrsquos interest including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural requirement would entail

5

Ct adopts

A type of specific performance

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 Short amp plain statement on jurisdictiono Short amp plain statement of claimo Demand for judgmentrelief

- Purpose notice to the opposing party notice of events amp notice of the legal right the para asserts

- Idea allow para to proceed to discovery unless it appears beyond a doubt that the para can prove no supporting facts to claim that would give para relief

- Exception Rule 9(b) in cases of fraud or mistake claims will be stated with ldquoparticularityrdquo Thatrsquos heightened pleading

- A complaint may suffice even if it does not allege all elements of a cause of action

o Ex Negligence complaint court amp may be OK if para does not specifically allege all neglg elements (duty breach cause drsquos)

- Also para does not need to allege or spell out every fact exact conduct that was negligent

- Judges have discretion on how much leeway- But para should watch for Rule 11 or 12 if para has not alleged an element and

doubts that the para has grounds could motion to dismiss- Relationship btwn Rule 8 amp 11

o Rule 8 complaint need only have ldquobare allegationsrdquoo Rule 11 requires atty to have investigated and have

evidentiary support for factual allegations o From the paralsquos standpoint when atty signs complaint atty is

supposed to have done all the investigation necessary to support complaint But atty doesnrsquot need to put that research into complaint Therefore there might be a tendency on the part of the para atty to cut corners and ultimately violate Rule 11

The Functions of PleadingDilatory Pleas Preemptory pleas

(responses that delay suit but donrsquot address merits of case) (grapple with legal amp factual merits of a claim)Challenges to jurisdiction

ldquonot hererdquoDemurrer

conceded the truth of allegations but questioned their legal sufficiency ldquoso whatrdquo

Pleas in suspension challenged paralsquos right to bring action until some

problem was solved ldquonot nowrdquo

TraverseConceded the legal sufficiency but denied the factual

allegations as true ldquonot truerdquoPleas in Abatement

challenged various other procedural defects in the complaint (eg spelling another claim btwn parties)

ldquonot until defect has been solvedrdquo

Confession amp AvoidanceConceded the truth of facts and the legal sufficiency

but alleged different facts that changed their significance ldquoyes butrdquo

NowRule 12 (b)(1)-(5)

NowDemurrer = Rule 12b6

Traverse = 8b (defense)Confession amp Avoid = Rule 8c (affirmative defense)

- 2 kinds of common law responses to allegations

6

Responsive Pleading = Answer

- These are all now found in Rule 12 b (1)-(5)

- Rule 12 b (6) para has failed to state a claim upon which relief may be grantedo 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 processo 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 amp ethically alter it so that it will withstand a 2nd motion to dismiss

- Haddle v Garrison o Distinction btwn fact amp law is gray events have a legal significance o If parties disagree about

What happened Summary Judgment Given everything that para has shown no reasonable fact

finder could find for para Legal significance of same facts R 12b6

Given all of paras facts are true para does not have a claim No fact-finder needed

o Legal conclusion is law- Consistency in Pleading Rule 8e2

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 trialsettlement 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 amp client conducto Makes standards immediately relevanto Establishes an interlocking set of standards procedures amp sanctions

a mini-regulatory regime that affects but does not directly regulate the entire conduct of litigation

o 11a signature w phone number amp 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

7

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

canrsquot do addtrsquol investigation wout discovery

Denials of facts are warranted on evidence or are based on a lack of infobelief

o 11b2a clients arenrsquot responsible for attyrsquos error of law o 11 b3 A party could be sanctioned for making up factso 11 c provides for sanctions either my a separate motion (within 21

days) or by courtrsquos 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 sanctiono 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

o Fraud or mistake bc punitive damages (remedial purpose) labeling behavior as deceitful stigma

o Need to say ldquowhyrdquo 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 amp complaint oro Within 60 days after the date when the request for waiver was sent if

the summons has been timely waived oro Within 90 days for a with an address outside any judicial district in

the US Pre-Answer Motion

- Rule 7b Motions o Must be in writing with specific relief soughto Need notice of the motion to the other party

8

R 12a

12 b motions1 subject matter jurisd2 personal jurisd3 venue4 insufficiency of process (defect)5 insufficiency of service of process (defect in method)6 failureclaim7 failure to join

o Any info necessary for granting the motion o Memo explaining with reference to the facts of the case and to

supporting authorities the basis for the motion- Pre-answer motions include

o Reasons why the court should not processo Assertions that the complaint (even if true) provides no basis for relief

soughto Denialso Affirmative Defenseso Requests for clarification andor more information

- If pre-answer motion is denied then have 10 days to file an answer

- If donrsquot make motions within time period then waives them (R 12g h)o Except for jurisdiction ndash thatrsquos whenever

- Can combine pre-answer motions in the motion

Answer

- If cannot make a 12b motion then must respond to its factual allegations

- Denialso R 8b Defenses

shall admit or deny allegations in complaint If a party doesnrsquot know ndash then so state and it will be treated

like a denial

Dilatory Pleas(responses that delay suit but donrsquot address merits of case)

Challenges to jurisdiction ldquonot hererdquo

Pleas in suspension challenged paralsquos right to bring action until some

problem was solved ldquonot nowrdquoPleas in Abatement

challenged various other procedural defects in the complaint (eg spelling another claim btwn parties)

ldquonot until defect has been solvedrdquoNow

Rule 12 (b)(1)-(5)

Preemptory pleas(grapple with legal amp factual merits of a claim)

Demurrer conceded the truth of allegations but questioned

their legal sufficiency ldquoso whatrdquoNow 12b6

Preemptory pleas(grapple with legal amp factual merits of a claim)

TraverseConceded the legal sufficiency but denied the factual

allegations as true ldquonot truerdquoConfession amp Avoidance

Conceded the truth of facts and the legal sufficiency but alleged different facts that changed their

significance ldquoyes butrdquoNow

Traverse = 8b (defense)Confession amp Avoid = Rule 8c (affirmative defense)

9

Waiver triggers

12 g amp 12 h

12 e motionmore definitive statement

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 amp no response effect of a denial General denial careful Only when you really deny everything

Ineffective Have to admit the truth in complaint amp answer

Except if you donrsquot know deny

- Affirmative Defenseso Line between factual denial amp affirmative defense is blurry

Affirm Best but then has the burdeno 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 amp facts may change as the

suit develops particularly from discovery- Common for parties to learn that their initial understanding of their

claimsdefenses were wrong or incomplete- Rule 15 governs between 2 goals justice amp prejudice

o Justice = easy amendment so that pleadings can reflect partiesrsquo changed view of the case

o Prejudice = Canrsquot burden the other side will be burdened if storyargument continues to shift

- Two typeso 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

lsquoclosesrsquo 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 amp no time limit either just have to amend before an answer to the counterclaim is filed

o Amendments with leave of court (judgersquos permission consent of other party) R 15 a Most common type of amendment

10

R 15Leave to amend shall be freely

given when justice so requires

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 partiesrsquo 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 partiesrsquo 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

As trial approaches ct becomes less flexible Tension btwn 2 goals (justice amp prejudice) increases

R 15 makes no distinction btwn factual amp legal changes to the pleadings

- Statute of Limitations amp R 15 Not a defense to amendmentso As long as para 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 Canrsquot add an unrelated claim ndash must arise out of the same transaction

IV Discovery

A Modern Discovery Discovery = interplay of relevance privilege amp 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 claimdefense) Discovery Rules establish 3 stages

- Requirement of mandatory disclosure- Provision for further discovery (limited to claims amp defenses)- Provision for broader discovery if party demonstrates lsquogood causersquo 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 providepermit 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 amp Limits Relevance amp Privilege

11

- To be discoverable info must be relevant amp not privileged- Info may be discoverable even though it wonrsquot canrsquot be admissible as

evidence at trial Relevance

- Relevant links discovery ndash law of pleading ndash law of evidence ndash common sense- Still not entitled to all discovery that is relevant- Relevant reasons for event occurring not potential other reasons party

could have used- 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 ndash cliento doctor ndash patiento therapist ndash patiento religious minister ndash 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 amp 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 Computations of damages claimed (make copies allow for

inspection of docs available) or insurance agreements Must be made in writing signed amp served If donrsquot disclose a witnessinfo used R 37c1 will likely bar the

party from using it (unless it is harmless) Duty to supplement this info when more info becomes

available R 26 e1o 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 amp counsel discuss the way discovery amp other pre-trial

matters should proceedo Parties cannot use interrogs deps or any other means before basic

info is exchangedo Exempt categories from initial disclosure (see R 26a1E)

12

ExampleMay 1 Initial mtgMay 14 Last day to exchange basic infoMay 21 Scheduling ConfAll with duty to supplement

Action for review on an administrative record Petition for habeas corpus other proceeding to challenge a

criminal conviction sentence An action brought wout 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 Addtrsquol 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 amp discretionary limits imposed by the judge

Depositions- Deposition = a witnessrsquo sworn out-of-court testimony that is reduced to

writing for later use in court or for discovery purposes- Oral deposition

o Occur in an atty office with all attys present the witness amp court reporter or recording device

o If deposing a non-party send a subpoena to ensure presenceo Counsel doesnrsquot cross-examine unless need clarificationo Deposition may be admitted at trial if witness canrsquot testify in persono Total number of depositions by one side may not exceed 10o No deposition can exceed 7 hrs in one dayo No one can get deposed more than once wout court or opposing

party permissiono A party may depose an organization or corporation orgcorp will

appoint an agent(s) to testify on its behalfo Motion to terminate or limit deposition must be made in a non-

argumentative non-suggestive amp concise mannero If counsel or witnessparty 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

13

R 28 30 31 amp 32

o Atty writes down questions sends them to a ct reporter at the deposition who asks the question and records the witnessrsquo 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 amp 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 amp Inspection of Documents amp Things- Document = any medium of information (email letter photo video

etc)o No limit to of docs requestedo Can only hold back doc if going to use it for perjury

- Procedureo Party send a R 34 request

Request must describe documents sought with reasonable particularity

Permissible to describe the requested documents by categoryo Non-party send a subpoena issued under R 45a1C

- The burden of productiono Party may comply with production by producing relevant

documents as kept in the normal course of businesso Problems with letting the requesting party weed through files

Provides the other party access to irrevelant info Access to files waives the compelled partyrsquos objection

to production of materials that are protected from discovery

Doesnrsquot save time ndash will have to go through files anyway to see what files the other side has seen

- For Physical Mental Exams must show lsquogood causersquo (R 35)o Only can examine people who are parties or who are in the custody of

parties o These custody3rd party ndash 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 doesnrsquot 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 amp

objections Punishes parties for unjustified requests amp refusals Suggest that atty fees will be an approp sanction for most

violations

14

o R 37 Series of devices designed to elicit info or respond to partiesrsquo refusal to supply info Some sanctions are available on the occurrence of

misbehavior (R 37 dampg) 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 amp

29) E-Discovery

D Discovery in an Adversarial System Privilege amp 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 Must be documents or tangible things Prepared in anticipation of a trial litigation Prepared by or for another party or by or for that partyrsquos

representativeo 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 wonrsquot if It reveals mental impressions conclusion opinions or legal

theories of counselo 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 amp testify- 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 amp the expertise is relevanto Experts range from regular professionals to exotic professionals

15

Work Product Doctrine

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 amp

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 amp party canrsquot 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 amp Creatively Bad can demonstrate one-sidedness greed amp 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 para might settle for less

- Settlements control risko Getting something is better than nothingo Trials are unpredictable amp all-or-nothingo Trials are expensive (donrsquot know how long either)

- Factors for companies to consider settlingo Investors bad press

- Contracting to Dismisso Release simplest form of settlement is a K where para 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 decisionso Parties can settle via phone meeting or exchanging docso No ct approval needed for settlement

Exceptions minors class actions multi cases (R 23 e3)

16

Prefiling agreement not to sue

Voluntary dismissal amp agreement not to sue

Dismissal with prejudice

o Settlements are binding Ks that can be attacked on the grounds of fraud duress mistake incapacity unconscionability etc

o Written settlements should contain all basic info amp must be signed and dated

o Prefiling agreements not to sue eliminate all litigation costs and carefully define scope of threatened law suit

o If para sues anyway should use R 8c affirmative defense being the arbitration amp award or should move for summary judgment (R 56b)

o If breaks settlement terms para should sue for breach of Ko Dismissal of Actions

Voluntary Dismissal para voluntarily dismisses claim before answer is filed Valuable to donrsquot need to acceptdeny para claims Valuable to para 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 para 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 donrsquot need to start all over again in back of line (like a breach of K for broken settlement)

A consent decree invokes the courtrsquos jurisdiction to enforce the settlement

Aka stipulated judgmento 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 risko 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- 3rd Party Participation in Settlement Facilitation Encouragement amp Coercion

o Mediation = assisted negotiation = for when settlements fail Goal agreement Positional mediation as what it will take to settle the case Interest mediation discovering monetary amp 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 amp 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 pointless

17

R 56

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 factso If there is an issue of material fact it might change the outcome of

the caseo If there is a genuine dispute of the issue a reasonable jury 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 hearsayo Canrsquot just offer a conclusion need supporting factso A moving party always bears the initial responsibility for informing

district ct of the basis for the motiono No requirement that moving party is required to support its motion

with affidavits etc to negate the non-moving partyrsquos claimo 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 canrsquot reply that evidence is forthcoming If so then use R 56f

If adverse (non-moving) party wins SJ doesnrsquot 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 partyrsquo favor considering which party has the burden

- To wino Moving Party with burden introduce evidence to make their claimo Moving Party wno burden claim that non-moving party doesnrsquot 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

Ctrsquos 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 partyo Yes SJ is not appropriateo No SJ is appropriate

18

Ways to knock out a casePre-answer motion amp SJ

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 donrsquot 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 judgeso 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 judgersquos bias bc a judge still rules on good amount of decisions during the trial

Procedure for recusing judge 28 USC sect 455- Where judge has

o Served as an atty in the matter in controversyo Served in gov employment amp expressed an opinion concerning the

merits of the particular case controversyo 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 amp 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)o Jury trial = R 38o Does not indicate scope of the righto 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 juryApplying the Historical Test to New Claims

- 2 part testo Compare action to actions that were available in 1791o Determine the remedy sought

Only ask 2nd question is there is no appropriate analogy Exceptions Jury wonrsquot hear cases about damages if

Damages are restitutionary

19

Monetary award intertwines with injunction

- Can waive right to jury trial by failing to raise righto 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 para seeks equitable remedies amp counter-claims are money both are entitled to a jury trial

- If para 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 adjudicationo 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 juryrsquos boundaries in their role as

decision makero Law of evidenceo Power instruction juryo Directed verdicto JNOVo 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

K case

para seeks $$ damages Jury

para seeks specific perf Judge

para seeks reformation Judge

para seeks rescindment Judgee

Nuisance property case

para seeks damages Jury

para seeks injunction Judge

Stolen ring

para seeks to recover value (trover) Jury

para seeks to recover the ring

(replevlin)

Jury

Wrongful occupation of property

para seeks damages Jury

para seeks to eject Jury

20

Need some proof of what happened evidence canrsquot 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 amp 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 amp the system of jury trial

dictate the particular forms by which the system tries to assure rationality and its limits

Juries Democracy amp 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 amp 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 lsquopreponderance of evidencersquo = 51o Only matters in a perfectly balanced case which party carries the

burden of persuasion (only when it is 5050 that burden matters)

- Burden of Productiono Basic idea party who bears the burden of production has to produce

each evidence in support of each elemento Party who has the burden of persuasion also have the burden of

productiono para has the burden for the elements of the claim and has the burden

for the affirmative defenseo Requires party to produce find amp present evidenceo Summary Judgment relies on burden of production

Need sufficient evidence to allow a rational trier of fact to find in her favor

o Meeting onersquos burden does not mean that the trier of fact has to rule in your favor only that they are able to

Controlling Juries Before the Verdict- Directed Verdict

o Judgment as a matter of law before vedicto Purpose to take the case away from the jury on the ground that the

evidence is insufficient to support a verdict for the para (R 50a)o First opportunity after paralsquos case Last opportunity before the Jury

Instructions

21

Can move for a directed verdict multiple timeso No 7th A violation

For 7th A need a casecontroversy (legitimate dispute) Constitutional role of fact-finder is not required

o Ct will only look at all evidence from both sides amp ask ldquois there a substantial conflict in evidence

Need a substantial amnt not a scintillao 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 amp substance issues

Can motion multiple timeso 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 wonrsquot reach verdicts

that canrsquot be sustained by the evidence Screen jury to elimination jurors who will likely

reach irrational verdicts (bc of sympathies or dimness)

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 juryo Prerequisite a motion for a directed verdict

Donrsquot move for a DV canrsquot move for a JNOV Purpose of Prerequisite

Preserves sufficiency of the evidence as a question of law

Calls the court amp partyrsquos 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 scripto Judges should not let cases go to jury without a sufficient amount of

evidenceo JNOVrsquos almost always result in an appeal

Only motion denied that can be immediately appealedo Little authority for the standard for reviewing a trial judgersquos JNOVo Credibility issues are always for the jury (Judge shouldnrsquot be 13th

juror)- New Trial

o Granting JNOV = wrong winnero New trial = a start-over not a declaration of who should have wono 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

22

Judgment as a Matter of Law- Directed verdict (R 50a)

before jury- JNOV (R 50b) after jury

Verdict Problem Bad instructions given or jury didnrsquot understand

instructions ldquoJNOV literdquo Judge doesnrsquot want to direct a verdict so will try it

again Judge will rule on new trial amp JNOV motion

together (R 59d)o No interlocutory appeals for new trials in federal ct

VIII Respect for Judgments

- Procedural rules serve 2 purposeso Air disputes completely and reach and accurate amp just outcomeo Seek to end disputes even if outcome is less than desirable

- Finality statutes of limitation claim preclusion amp issue preclusion- Claim preclusion forbids a party from relitigating a claim that should have

been raised in former litigationo Claim preclusion = ldquores judicatardquoo Goals efficiency finality consistent results

- Issue preclusion when some issue involved in that claim has been previously litigatedo Issue preclusion = ldquocollateral estoppelrdquo

A Claim Preclusion Res judicata Same claim amp same parties 4 prerequisites needed

- Claim in 2nd action must be same claim that was litigated in the 1st action- Parties must be the same- Judgment rendered in 1st action must be final- Judgment must have been rendered on the merits of the case

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 para litigated a subset of all available

disputes between the parties in the 1st suit

- Restatement Test of what is a claimo When a valid and final judgment rendered in an action extinguishes a

paralsquos claim the claim extinguished all right of the para to remedies against the with respect 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 ldquotransactionrdquo and what groupings constitute a ldquoseriesrdquo 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 partiesrsquo expectations or business understanding or usage

Between the Same Parties- Claim preclusion only works between those who were the parties to both the

1st amp 2nd lawsuits

23

Note claims that could not be joined will not be barred by claim preclusion

Interrelated by same transaction or series of transactions

2 Constitutional Prerequisites 1- Notice 2- Actual parties must know that they are repping the interests of others

JNOV = R 50New trial = R 59

- Generally separate individuals are regarded as having separate claims- Several exceptions

o Privity an ongoing or contractual relationship (most important)o Substantive Legal relationship ex successive ownership of land with

easements 1 party sues to enforce the easement against the 2nd party amp wins 2nd party sells to 3rd party ndash 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 amp Claim Preclusiono Was the issue decided in the proper adjudication identical with the

issue presented in the action in questiono Was there a final judgmento Was the party against whom the plea is asserted a party or a person

in privity with a party in the prior adjudicationo Was the issue in the 1st case competently fully amp 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 ldquoOn the Meritsrdquo- Not all judgments receive preclusive effect- Cts may attach preclusive effect bc

o Ct actually considered and ruled on the merits of the caseo 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 effecto Full jury trial = Yes preclusive effecto Directed verdict = Yes preclusive effecto Summary Judgment = Yes preclusive effecto 12b6 = depends

Sup Ct has ruled that a dismissal 12b6 ruling is a judgment on the merits

But states have different rules amp 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 amp Compulsory Counterclaims

- Failure to bring a compulsory counterclaim precludes from bringing it againo 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 amp essential to prior judgment- Need an issue of fact or law that was actually litigated and determined by a

valid amp final judgment and the determination is essential to the judgment

24

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 amp 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 litigationo Evidence to the record = trial transcript jury instructions

Between Which Parties- The ldquoVictimrdquo of Preclusion

o Old common law mutuality was a requirement for both claim amp 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 amp 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 wifersquos victory

New rule husband can take advantage of issue preclusion to prevent RR re-litigating case bc RR already had a full amp fair opportunity to litigate

Victim bc if RR won in 1st case canrsquot take advantage bc husband was not a party in the 1st case

- The Precludero General rule where a para 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 para uses the prior determination like a sword

para tries to hold to prior outcome (where litigated amp lost) Good for paras can wait amp 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 para already lost suing another on same issue

o Remember 2 goals of issue preclusion Consistency of verdicts Efficiency

25

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

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 Irsquove been wronged amp you wronged me Still need a casecontroversy

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 amp TROs

- Inglis amp Sons v ITT 2 Tests for Prelim injunctionso Test 1 para is entitled to a prelim injunction if court finds

para will suffer an irreparable injury if injunction not granted para will probably prevail on the merits In balancing the equities will not be harmed more than para

is helped by injunction Granting the injunction is in the public interest

o Test 2 Balancing test One moving for a prelim injunction has the burden of

demonstrating either a combination of probable success and the possibility of irreparable -- or ndash that serious questions are raised and the balance of hardships tips sharply in her favor

- R 65a Prelim injunctionso R 65a2 Temp Restraining Order immediate without notice a

preliminary prelim injunction Go to court wout wout knowing to ask for an order to prevent from doing somethingTRO Preliminary Injunction Trial (permanent inj)

Formality of process- Public interest must be considered- Other processes for provisional monetary relief

o Attachment involves seizure of propertyo Garnishment ask a 3rd party not to pay $ bc para has a claim on it

Provisional Remedies amp Due Process- 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 (eg drugs domestic violence)

- Fuentes v Shevin FL Writ of replevlin was a violation of 14th A DPC Situations for postponing notice amp hearing

o Seizure is direct necessary to secure an important gov general public interest

o Special need for very prompt actiono 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 interesto The risk of an erroneous deprivation of such interest through the

procedures usedo The Govrsquos interest including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural requirement would entail

5

Ct adopts

A type of specific performance

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 Short amp plain statement on jurisdictiono Short amp plain statement of claimo Demand for judgmentrelief

- Purpose notice to the opposing party notice of events amp notice of the legal right the para asserts

- Idea allow para to proceed to discovery unless it appears beyond a doubt that the para can prove no supporting facts to claim that would give para relief

- Exception Rule 9(b) in cases of fraud or mistake claims will be stated with ldquoparticularityrdquo Thatrsquos heightened pleading

- A complaint may suffice even if it does not allege all elements of a cause of action

o Ex Negligence complaint court amp may be OK if para does not specifically allege all neglg elements (duty breach cause drsquos)

- Also para does not need to allege or spell out every fact exact conduct that was negligent

- Judges have discretion on how much leeway- But para should watch for Rule 11 or 12 if para has not alleged an element and

doubts that the para has grounds could motion to dismiss- Relationship btwn Rule 8 amp 11

o Rule 8 complaint need only have ldquobare allegationsrdquoo Rule 11 requires atty to have investigated and have

evidentiary support for factual allegations o From the paralsquos standpoint when atty signs complaint atty is

supposed to have done all the investigation necessary to support complaint But atty doesnrsquot need to put that research into complaint Therefore there might be a tendency on the part of the para atty to cut corners and ultimately violate Rule 11

The Functions of PleadingDilatory Pleas Preemptory pleas

(responses that delay suit but donrsquot address merits of case) (grapple with legal amp factual merits of a claim)Challenges to jurisdiction

ldquonot hererdquoDemurrer

conceded the truth of allegations but questioned their legal sufficiency ldquoso whatrdquo

Pleas in suspension challenged paralsquos right to bring action until some

problem was solved ldquonot nowrdquo

TraverseConceded the legal sufficiency but denied the factual

allegations as true ldquonot truerdquoPleas in Abatement

challenged various other procedural defects in the complaint (eg spelling another claim btwn parties)

ldquonot until defect has been solvedrdquo

Confession amp AvoidanceConceded the truth of facts and the legal sufficiency

but alleged different facts that changed their significance ldquoyes butrdquo

NowRule 12 (b)(1)-(5)

NowDemurrer = Rule 12b6

Traverse = 8b (defense)Confession amp Avoid = Rule 8c (affirmative defense)

- 2 kinds of common law responses to allegations

6

Responsive Pleading = Answer

- These are all now found in Rule 12 b (1)-(5)

- Rule 12 b (6) para has failed to state a claim upon which relief may be grantedo 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 processo 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 amp ethically alter it so that it will withstand a 2nd motion to dismiss

- Haddle v Garrison o Distinction btwn fact amp law is gray events have a legal significance o If parties disagree about

What happened Summary Judgment Given everything that para has shown no reasonable fact

finder could find for para Legal significance of same facts R 12b6

Given all of paras facts are true para does not have a claim No fact-finder needed

o Legal conclusion is law- Consistency in Pleading Rule 8e2

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 trialsettlement 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 amp client conducto Makes standards immediately relevanto Establishes an interlocking set of standards procedures amp sanctions

a mini-regulatory regime that affects but does not directly regulate the entire conduct of litigation

o 11a signature w phone number amp 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

7

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

canrsquot do addtrsquol investigation wout discovery

Denials of facts are warranted on evidence or are based on a lack of infobelief

o 11b2a clients arenrsquot responsible for attyrsquos error of law o 11 b3 A party could be sanctioned for making up factso 11 c provides for sanctions either my a separate motion (within 21

days) or by courtrsquos 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 sanctiono 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

o Fraud or mistake bc punitive damages (remedial purpose) labeling behavior as deceitful stigma

o Need to say ldquowhyrdquo 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 amp complaint oro Within 60 days after the date when the request for waiver was sent if

the summons has been timely waived oro Within 90 days for a with an address outside any judicial district in

the US Pre-Answer Motion

- Rule 7b Motions o Must be in writing with specific relief soughto Need notice of the motion to the other party

8

R 12a

12 b motions1 subject matter jurisd2 personal jurisd3 venue4 insufficiency of process (defect)5 insufficiency of service of process (defect in method)6 failureclaim7 failure to join

o Any info necessary for granting the motion o Memo explaining with reference to the facts of the case and to

supporting authorities the basis for the motion- Pre-answer motions include

o Reasons why the court should not processo Assertions that the complaint (even if true) provides no basis for relief

soughto Denialso Affirmative Defenseso Requests for clarification andor more information

- If pre-answer motion is denied then have 10 days to file an answer

- If donrsquot make motions within time period then waives them (R 12g h)o Except for jurisdiction ndash thatrsquos whenever

- Can combine pre-answer motions in the motion

Answer

- If cannot make a 12b motion then must respond to its factual allegations

- Denialso R 8b Defenses

shall admit or deny allegations in complaint If a party doesnrsquot know ndash then so state and it will be treated

like a denial

Dilatory Pleas(responses that delay suit but donrsquot address merits of case)

Challenges to jurisdiction ldquonot hererdquo

Pleas in suspension challenged paralsquos right to bring action until some

problem was solved ldquonot nowrdquoPleas in Abatement

challenged various other procedural defects in the complaint (eg spelling another claim btwn parties)

ldquonot until defect has been solvedrdquoNow

Rule 12 (b)(1)-(5)

Preemptory pleas(grapple with legal amp factual merits of a claim)

Demurrer conceded the truth of allegations but questioned

their legal sufficiency ldquoso whatrdquoNow 12b6

Preemptory pleas(grapple with legal amp factual merits of a claim)

TraverseConceded the legal sufficiency but denied the factual

allegations as true ldquonot truerdquoConfession amp Avoidance

Conceded the truth of facts and the legal sufficiency but alleged different facts that changed their

significance ldquoyes butrdquoNow

Traverse = 8b (defense)Confession amp Avoid = Rule 8c (affirmative defense)

9

Waiver triggers

12 g amp 12 h

12 e motionmore definitive statement

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 amp no response effect of a denial General denial careful Only when you really deny everything

Ineffective Have to admit the truth in complaint amp answer

Except if you donrsquot know deny

- Affirmative Defenseso Line between factual denial amp affirmative defense is blurry

Affirm Best but then has the burdeno 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 amp facts may change as the

suit develops particularly from discovery- Common for parties to learn that their initial understanding of their

claimsdefenses were wrong or incomplete- Rule 15 governs between 2 goals justice amp prejudice

o Justice = easy amendment so that pleadings can reflect partiesrsquo changed view of the case

o Prejudice = Canrsquot burden the other side will be burdened if storyargument continues to shift

- Two typeso 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

lsquoclosesrsquo 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 amp no time limit either just have to amend before an answer to the counterclaim is filed

o Amendments with leave of court (judgersquos permission consent of other party) R 15 a Most common type of amendment

10

R 15Leave to amend shall be freely

given when justice so requires

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 partiesrsquo 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 partiesrsquo 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

As trial approaches ct becomes less flexible Tension btwn 2 goals (justice amp prejudice) increases

R 15 makes no distinction btwn factual amp legal changes to the pleadings

- Statute of Limitations amp R 15 Not a defense to amendmentso As long as para 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 Canrsquot add an unrelated claim ndash must arise out of the same transaction

IV Discovery

A Modern Discovery Discovery = interplay of relevance privilege amp 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 claimdefense) Discovery Rules establish 3 stages

- Requirement of mandatory disclosure- Provision for further discovery (limited to claims amp defenses)- Provision for broader discovery if party demonstrates lsquogood causersquo 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 providepermit 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 amp Limits Relevance amp Privilege

11

- To be discoverable info must be relevant amp not privileged- Info may be discoverable even though it wonrsquot canrsquot be admissible as

evidence at trial Relevance

- Relevant links discovery ndash law of pleading ndash law of evidence ndash common sense- Still not entitled to all discovery that is relevant- Relevant reasons for event occurring not potential other reasons party

could have used- 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 ndash cliento doctor ndash patiento therapist ndash patiento religious minister ndash 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 amp 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 Computations of damages claimed (make copies allow for

inspection of docs available) or insurance agreements Must be made in writing signed amp served If donrsquot disclose a witnessinfo used R 37c1 will likely bar the

party from using it (unless it is harmless) Duty to supplement this info when more info becomes

available R 26 e1o 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 amp counsel discuss the way discovery amp other pre-trial

matters should proceedo Parties cannot use interrogs deps or any other means before basic

info is exchangedo Exempt categories from initial disclosure (see R 26a1E)

12

ExampleMay 1 Initial mtgMay 14 Last day to exchange basic infoMay 21 Scheduling ConfAll with duty to supplement

Action for review on an administrative record Petition for habeas corpus other proceeding to challenge a

criminal conviction sentence An action brought wout 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 Addtrsquol 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 amp discretionary limits imposed by the judge

Depositions- Deposition = a witnessrsquo sworn out-of-court testimony that is reduced to

writing for later use in court or for discovery purposes- Oral deposition

o Occur in an atty office with all attys present the witness amp court reporter or recording device

o If deposing a non-party send a subpoena to ensure presenceo Counsel doesnrsquot cross-examine unless need clarificationo Deposition may be admitted at trial if witness canrsquot testify in persono Total number of depositions by one side may not exceed 10o No deposition can exceed 7 hrs in one dayo No one can get deposed more than once wout court or opposing

party permissiono A party may depose an organization or corporation orgcorp will

appoint an agent(s) to testify on its behalfo Motion to terminate or limit deposition must be made in a non-

argumentative non-suggestive amp concise mannero If counsel or witnessparty 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

13

R 28 30 31 amp 32

o Atty writes down questions sends them to a ct reporter at the deposition who asks the question and records the witnessrsquo 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 amp 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 amp Inspection of Documents amp Things- Document = any medium of information (email letter photo video

etc)o No limit to of docs requestedo Can only hold back doc if going to use it for perjury

- Procedureo Party send a R 34 request

Request must describe documents sought with reasonable particularity

Permissible to describe the requested documents by categoryo Non-party send a subpoena issued under R 45a1C

- The burden of productiono Party may comply with production by producing relevant

documents as kept in the normal course of businesso Problems with letting the requesting party weed through files

Provides the other party access to irrevelant info Access to files waives the compelled partyrsquos objection

to production of materials that are protected from discovery

Doesnrsquot save time ndash will have to go through files anyway to see what files the other side has seen

- For Physical Mental Exams must show lsquogood causersquo (R 35)o Only can examine people who are parties or who are in the custody of

parties o These custody3rd party ndash 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 doesnrsquot 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 amp

objections Punishes parties for unjustified requests amp refusals Suggest that atty fees will be an approp sanction for most

violations

14

o R 37 Series of devices designed to elicit info or respond to partiesrsquo refusal to supply info Some sanctions are available on the occurrence of

misbehavior (R 37 dampg) 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 amp

29) E-Discovery

D Discovery in an Adversarial System Privilege amp 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 Must be documents or tangible things Prepared in anticipation of a trial litigation Prepared by or for another party or by or for that partyrsquos

representativeo 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 wonrsquot if It reveals mental impressions conclusion opinions or legal

theories of counselo 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 amp testify- 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 amp the expertise is relevanto Experts range from regular professionals to exotic professionals

15

Work Product Doctrine

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 amp

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 amp party canrsquot 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 amp Creatively Bad can demonstrate one-sidedness greed amp 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 para might settle for less

- Settlements control risko Getting something is better than nothingo Trials are unpredictable amp all-or-nothingo Trials are expensive (donrsquot know how long either)

- Factors for companies to consider settlingo Investors bad press

- Contracting to Dismisso Release simplest form of settlement is a K where para 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 decisionso Parties can settle via phone meeting or exchanging docso No ct approval needed for settlement

Exceptions minors class actions multi cases (R 23 e3)

16

Prefiling agreement not to sue

Voluntary dismissal amp agreement not to sue

Dismissal with prejudice

o Settlements are binding Ks that can be attacked on the grounds of fraud duress mistake incapacity unconscionability etc

o Written settlements should contain all basic info amp must be signed and dated

o Prefiling agreements not to sue eliminate all litigation costs and carefully define scope of threatened law suit

o If para sues anyway should use R 8c affirmative defense being the arbitration amp award or should move for summary judgment (R 56b)

o If breaks settlement terms para should sue for breach of Ko Dismissal of Actions

Voluntary Dismissal para voluntarily dismisses claim before answer is filed Valuable to donrsquot need to acceptdeny para claims Valuable to para 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 para 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 donrsquot need to start all over again in back of line (like a breach of K for broken settlement)

A consent decree invokes the courtrsquos jurisdiction to enforce the settlement

Aka stipulated judgmento 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 risko 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- 3rd Party Participation in Settlement Facilitation Encouragement amp Coercion

o Mediation = assisted negotiation = for when settlements fail Goal agreement Positional mediation as what it will take to settle the case Interest mediation discovering monetary amp 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 amp 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 pointless

17

R 56

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 factso If there is an issue of material fact it might change the outcome of

the caseo If there is a genuine dispute of the issue a reasonable jury 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 hearsayo Canrsquot just offer a conclusion need supporting factso A moving party always bears the initial responsibility for informing

district ct of the basis for the motiono No requirement that moving party is required to support its motion

with affidavits etc to negate the non-moving partyrsquos claimo 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 canrsquot reply that evidence is forthcoming If so then use R 56f

If adverse (non-moving) party wins SJ doesnrsquot 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 partyrsquo favor considering which party has the burden

- To wino Moving Party with burden introduce evidence to make their claimo Moving Party wno burden claim that non-moving party doesnrsquot 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

Ctrsquos 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 partyo Yes SJ is not appropriateo No SJ is appropriate

18

Ways to knock out a casePre-answer motion amp SJ

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 donrsquot 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 judgeso 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 judgersquos bias bc a judge still rules on good amount of decisions during the trial

Procedure for recusing judge 28 USC sect 455- Where judge has

o Served as an atty in the matter in controversyo Served in gov employment amp expressed an opinion concerning the

merits of the particular case controversyo 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 amp 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)o Jury trial = R 38o Does not indicate scope of the righto 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 juryApplying the Historical Test to New Claims

- 2 part testo Compare action to actions that were available in 1791o Determine the remedy sought

Only ask 2nd question is there is no appropriate analogy Exceptions Jury wonrsquot hear cases about damages if

Damages are restitutionary

19

Monetary award intertwines with injunction

- Can waive right to jury trial by failing to raise righto 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 para seeks equitable remedies amp counter-claims are money both are entitled to a jury trial

- If para 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 adjudicationo 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 juryrsquos boundaries in their role as

decision makero Law of evidenceo Power instruction juryo Directed verdicto JNOVo 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

K case

para seeks $$ damages Jury

para seeks specific perf Judge

para seeks reformation Judge

para seeks rescindment Judgee

Nuisance property case

para seeks damages Jury

para seeks injunction Judge

Stolen ring

para seeks to recover value (trover) Jury

para seeks to recover the ring

(replevlin)

Jury

Wrongful occupation of property

para seeks damages Jury

para seeks to eject Jury

20

Need some proof of what happened evidence canrsquot 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 amp 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 amp the system of jury trial

dictate the particular forms by which the system tries to assure rationality and its limits

Juries Democracy amp 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 amp 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 lsquopreponderance of evidencersquo = 51o Only matters in a perfectly balanced case which party carries the

burden of persuasion (only when it is 5050 that burden matters)

- Burden of Productiono Basic idea party who bears the burden of production has to produce

each evidence in support of each elemento Party who has the burden of persuasion also have the burden of

productiono para has the burden for the elements of the claim and has the burden

for the affirmative defenseo Requires party to produce find amp present evidenceo Summary Judgment relies on burden of production

Need sufficient evidence to allow a rational trier of fact to find in her favor

o Meeting onersquos burden does not mean that the trier of fact has to rule in your favor only that they are able to

Controlling Juries Before the Verdict- Directed Verdict

o Judgment as a matter of law before vedicto Purpose to take the case away from the jury on the ground that the

evidence is insufficient to support a verdict for the para (R 50a)o First opportunity after paralsquos case Last opportunity before the Jury

Instructions

21

Can move for a directed verdict multiple timeso No 7th A violation

For 7th A need a casecontroversy (legitimate dispute) Constitutional role of fact-finder is not required

o Ct will only look at all evidence from both sides amp ask ldquois there a substantial conflict in evidence

Need a substantial amnt not a scintillao 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 amp substance issues

Can motion multiple timeso 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 wonrsquot reach verdicts

that canrsquot be sustained by the evidence Screen jury to elimination jurors who will likely

reach irrational verdicts (bc of sympathies or dimness)

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 juryo Prerequisite a motion for a directed verdict

Donrsquot move for a DV canrsquot move for a JNOV Purpose of Prerequisite

Preserves sufficiency of the evidence as a question of law

Calls the court amp partyrsquos 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 scripto Judges should not let cases go to jury without a sufficient amount of

evidenceo JNOVrsquos almost always result in an appeal

Only motion denied that can be immediately appealedo Little authority for the standard for reviewing a trial judgersquos JNOVo Credibility issues are always for the jury (Judge shouldnrsquot be 13th

juror)- New Trial

o Granting JNOV = wrong winnero New trial = a start-over not a declaration of who should have wono 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

22

Judgment as a Matter of Law- Directed verdict (R 50a)

before jury- JNOV (R 50b) after jury

Verdict Problem Bad instructions given or jury didnrsquot understand

instructions ldquoJNOV literdquo Judge doesnrsquot want to direct a verdict so will try it

again Judge will rule on new trial amp JNOV motion

together (R 59d)o No interlocutory appeals for new trials in federal ct

VIII Respect for Judgments

- Procedural rules serve 2 purposeso Air disputes completely and reach and accurate amp just outcomeo Seek to end disputes even if outcome is less than desirable

- Finality statutes of limitation claim preclusion amp issue preclusion- Claim preclusion forbids a party from relitigating a claim that should have

been raised in former litigationo Claim preclusion = ldquores judicatardquoo Goals efficiency finality consistent results

- Issue preclusion when some issue involved in that claim has been previously litigatedo Issue preclusion = ldquocollateral estoppelrdquo

A Claim Preclusion Res judicata Same claim amp same parties 4 prerequisites needed

- Claim in 2nd action must be same claim that was litigated in the 1st action- Parties must be the same- Judgment rendered in 1st action must be final- Judgment must have been rendered on the merits of the case

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 para litigated a subset of all available

disputes between the parties in the 1st suit

- Restatement Test of what is a claimo When a valid and final judgment rendered in an action extinguishes a

paralsquos claim the claim extinguished all right of the para to remedies against the with respect 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 ldquotransactionrdquo and what groupings constitute a ldquoseriesrdquo 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 partiesrsquo expectations or business understanding or usage

Between the Same Parties- Claim preclusion only works between those who were the parties to both the

1st amp 2nd lawsuits

23

Note claims that could not be joined will not be barred by claim preclusion

Interrelated by same transaction or series of transactions

2 Constitutional Prerequisites 1- Notice 2- Actual parties must know that they are repping the interests of others

JNOV = R 50New trial = R 59

- Generally separate individuals are regarded as having separate claims- Several exceptions

o Privity an ongoing or contractual relationship (most important)o Substantive Legal relationship ex successive ownership of land with

easements 1 party sues to enforce the easement against the 2nd party amp wins 2nd party sells to 3rd party ndash 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 amp Claim Preclusiono Was the issue decided in the proper adjudication identical with the

issue presented in the action in questiono Was there a final judgmento Was the party against whom the plea is asserted a party or a person

in privity with a party in the prior adjudicationo Was the issue in the 1st case competently fully amp 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 ldquoOn the Meritsrdquo- Not all judgments receive preclusive effect- Cts may attach preclusive effect bc

o Ct actually considered and ruled on the merits of the caseo 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 effecto Full jury trial = Yes preclusive effecto Directed verdict = Yes preclusive effecto Summary Judgment = Yes preclusive effecto 12b6 = depends

Sup Ct has ruled that a dismissal 12b6 ruling is a judgment on the merits

But states have different rules amp 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 amp Compulsory Counterclaims

- Failure to bring a compulsory counterclaim precludes from bringing it againo 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 amp essential to prior judgment- Need an issue of fact or law that was actually litigated and determined by a

valid amp final judgment and the determination is essential to the judgment

24

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 amp 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 litigationo Evidence to the record = trial transcript jury instructions

Between Which Parties- The ldquoVictimrdquo of Preclusion

o Old common law mutuality was a requirement for both claim amp 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 amp 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 wifersquos victory

New rule husband can take advantage of issue preclusion to prevent RR re-litigating case bc RR already had a full amp fair opportunity to litigate

Victim bc if RR won in 1st case canrsquot take advantage bc husband was not a party in the 1st case

- The Precludero General rule where a para 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 para uses the prior determination like a sword

para tries to hold to prior outcome (where litigated amp lost) Good for paras can wait amp 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 para already lost suing another on same issue

o Remember 2 goals of issue preclusion Consistency of verdicts Efficiency

25

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

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 Short amp plain statement on jurisdictiono Short amp plain statement of claimo Demand for judgmentrelief

- Purpose notice to the opposing party notice of events amp notice of the legal right the para asserts

- Idea allow para to proceed to discovery unless it appears beyond a doubt that the para can prove no supporting facts to claim that would give para relief

- Exception Rule 9(b) in cases of fraud or mistake claims will be stated with ldquoparticularityrdquo Thatrsquos heightened pleading

- A complaint may suffice even if it does not allege all elements of a cause of action

o Ex Negligence complaint court amp may be OK if para does not specifically allege all neglg elements (duty breach cause drsquos)

- Also para does not need to allege or spell out every fact exact conduct that was negligent

- Judges have discretion on how much leeway- But para should watch for Rule 11 or 12 if para has not alleged an element and

doubts that the para has grounds could motion to dismiss- Relationship btwn Rule 8 amp 11

o Rule 8 complaint need only have ldquobare allegationsrdquoo Rule 11 requires atty to have investigated and have

evidentiary support for factual allegations o From the paralsquos standpoint when atty signs complaint atty is

supposed to have done all the investigation necessary to support complaint But atty doesnrsquot need to put that research into complaint Therefore there might be a tendency on the part of the para atty to cut corners and ultimately violate Rule 11

The Functions of PleadingDilatory Pleas Preemptory pleas

(responses that delay suit but donrsquot address merits of case) (grapple with legal amp factual merits of a claim)Challenges to jurisdiction

ldquonot hererdquoDemurrer

conceded the truth of allegations but questioned their legal sufficiency ldquoso whatrdquo

Pleas in suspension challenged paralsquos right to bring action until some

problem was solved ldquonot nowrdquo

TraverseConceded the legal sufficiency but denied the factual

allegations as true ldquonot truerdquoPleas in Abatement

challenged various other procedural defects in the complaint (eg spelling another claim btwn parties)

ldquonot until defect has been solvedrdquo

Confession amp AvoidanceConceded the truth of facts and the legal sufficiency

but alleged different facts that changed their significance ldquoyes butrdquo

NowRule 12 (b)(1)-(5)

NowDemurrer = Rule 12b6

Traverse = 8b (defense)Confession amp Avoid = Rule 8c (affirmative defense)

- 2 kinds of common law responses to allegations

6

Responsive Pleading = Answer

- These are all now found in Rule 12 b (1)-(5)

- Rule 12 b (6) para has failed to state a claim upon which relief may be grantedo 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 processo 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 amp ethically alter it so that it will withstand a 2nd motion to dismiss

- Haddle v Garrison o Distinction btwn fact amp law is gray events have a legal significance o If parties disagree about

What happened Summary Judgment Given everything that para has shown no reasonable fact

finder could find for para Legal significance of same facts R 12b6

Given all of paras facts are true para does not have a claim No fact-finder needed

o Legal conclusion is law- Consistency in Pleading Rule 8e2

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 trialsettlement 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 amp client conducto Makes standards immediately relevanto Establishes an interlocking set of standards procedures amp sanctions

a mini-regulatory regime that affects but does not directly regulate the entire conduct of litigation

o 11a signature w phone number amp 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

7

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

canrsquot do addtrsquol investigation wout discovery

Denials of facts are warranted on evidence or are based on a lack of infobelief

o 11b2a clients arenrsquot responsible for attyrsquos error of law o 11 b3 A party could be sanctioned for making up factso 11 c provides for sanctions either my a separate motion (within 21

days) or by courtrsquos 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 sanctiono 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

o Fraud or mistake bc punitive damages (remedial purpose) labeling behavior as deceitful stigma

o Need to say ldquowhyrdquo 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 amp complaint oro Within 60 days after the date when the request for waiver was sent if

the summons has been timely waived oro Within 90 days for a with an address outside any judicial district in

the US Pre-Answer Motion

- Rule 7b Motions o Must be in writing with specific relief soughto Need notice of the motion to the other party

8

R 12a

12 b motions1 subject matter jurisd2 personal jurisd3 venue4 insufficiency of process (defect)5 insufficiency of service of process (defect in method)6 failureclaim7 failure to join

o Any info necessary for granting the motion o Memo explaining with reference to the facts of the case and to

supporting authorities the basis for the motion- Pre-answer motions include

o Reasons why the court should not processo Assertions that the complaint (even if true) provides no basis for relief

soughto Denialso Affirmative Defenseso Requests for clarification andor more information

- If pre-answer motion is denied then have 10 days to file an answer

- If donrsquot make motions within time period then waives them (R 12g h)o Except for jurisdiction ndash thatrsquos whenever

- Can combine pre-answer motions in the motion

Answer

- If cannot make a 12b motion then must respond to its factual allegations

- Denialso R 8b Defenses

shall admit or deny allegations in complaint If a party doesnrsquot know ndash then so state and it will be treated

like a denial

Dilatory Pleas(responses that delay suit but donrsquot address merits of case)

Challenges to jurisdiction ldquonot hererdquo

Pleas in suspension challenged paralsquos right to bring action until some

problem was solved ldquonot nowrdquoPleas in Abatement

challenged various other procedural defects in the complaint (eg spelling another claim btwn parties)

ldquonot until defect has been solvedrdquoNow

Rule 12 (b)(1)-(5)

Preemptory pleas(grapple with legal amp factual merits of a claim)

Demurrer conceded the truth of allegations but questioned

their legal sufficiency ldquoso whatrdquoNow 12b6

Preemptory pleas(grapple with legal amp factual merits of a claim)

TraverseConceded the legal sufficiency but denied the factual

allegations as true ldquonot truerdquoConfession amp Avoidance

Conceded the truth of facts and the legal sufficiency but alleged different facts that changed their

significance ldquoyes butrdquoNow

Traverse = 8b (defense)Confession amp Avoid = Rule 8c (affirmative defense)

9

Waiver triggers

12 g amp 12 h

12 e motionmore definitive statement

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 amp no response effect of a denial General denial careful Only when you really deny everything

Ineffective Have to admit the truth in complaint amp answer

Except if you donrsquot know deny

- Affirmative Defenseso Line between factual denial amp affirmative defense is blurry

Affirm Best but then has the burdeno 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 amp facts may change as the

suit develops particularly from discovery- Common for parties to learn that their initial understanding of their

claimsdefenses were wrong or incomplete- Rule 15 governs between 2 goals justice amp prejudice

o Justice = easy amendment so that pleadings can reflect partiesrsquo changed view of the case

o Prejudice = Canrsquot burden the other side will be burdened if storyargument continues to shift

- Two typeso 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

lsquoclosesrsquo 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 amp no time limit either just have to amend before an answer to the counterclaim is filed

o Amendments with leave of court (judgersquos permission consent of other party) R 15 a Most common type of amendment

10

R 15Leave to amend shall be freely

given when justice so requires

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 partiesrsquo 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 partiesrsquo 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

As trial approaches ct becomes less flexible Tension btwn 2 goals (justice amp prejudice) increases

R 15 makes no distinction btwn factual amp legal changes to the pleadings

- Statute of Limitations amp R 15 Not a defense to amendmentso As long as para 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 Canrsquot add an unrelated claim ndash must arise out of the same transaction

IV Discovery

A Modern Discovery Discovery = interplay of relevance privilege amp 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 claimdefense) Discovery Rules establish 3 stages

- Requirement of mandatory disclosure- Provision for further discovery (limited to claims amp defenses)- Provision for broader discovery if party demonstrates lsquogood causersquo 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 providepermit 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 amp Limits Relevance amp Privilege

11

- To be discoverable info must be relevant amp not privileged- Info may be discoverable even though it wonrsquot canrsquot be admissible as

evidence at trial Relevance

- Relevant links discovery ndash law of pleading ndash law of evidence ndash common sense- Still not entitled to all discovery that is relevant- Relevant reasons for event occurring not potential other reasons party

could have used- 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 ndash cliento doctor ndash patiento therapist ndash patiento religious minister ndash 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 amp 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 Computations of damages claimed (make copies allow for

inspection of docs available) or insurance agreements Must be made in writing signed amp served If donrsquot disclose a witnessinfo used R 37c1 will likely bar the

party from using it (unless it is harmless) Duty to supplement this info when more info becomes

available R 26 e1o 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 amp counsel discuss the way discovery amp other pre-trial

matters should proceedo Parties cannot use interrogs deps or any other means before basic

info is exchangedo Exempt categories from initial disclosure (see R 26a1E)

12

ExampleMay 1 Initial mtgMay 14 Last day to exchange basic infoMay 21 Scheduling ConfAll with duty to supplement

Action for review on an administrative record Petition for habeas corpus other proceeding to challenge a

criminal conviction sentence An action brought wout 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 Addtrsquol 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 amp discretionary limits imposed by the judge

Depositions- Deposition = a witnessrsquo sworn out-of-court testimony that is reduced to

writing for later use in court or for discovery purposes- Oral deposition

o Occur in an atty office with all attys present the witness amp court reporter or recording device

o If deposing a non-party send a subpoena to ensure presenceo Counsel doesnrsquot cross-examine unless need clarificationo Deposition may be admitted at trial if witness canrsquot testify in persono Total number of depositions by one side may not exceed 10o No deposition can exceed 7 hrs in one dayo No one can get deposed more than once wout court or opposing

party permissiono A party may depose an organization or corporation orgcorp will

appoint an agent(s) to testify on its behalfo Motion to terminate or limit deposition must be made in a non-

argumentative non-suggestive amp concise mannero If counsel or witnessparty 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

13

R 28 30 31 amp 32

o Atty writes down questions sends them to a ct reporter at the deposition who asks the question and records the witnessrsquo 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 amp 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 amp Inspection of Documents amp Things- Document = any medium of information (email letter photo video

etc)o No limit to of docs requestedo Can only hold back doc if going to use it for perjury

- Procedureo Party send a R 34 request

Request must describe documents sought with reasonable particularity

Permissible to describe the requested documents by categoryo Non-party send a subpoena issued under R 45a1C

- The burden of productiono Party may comply with production by producing relevant

documents as kept in the normal course of businesso Problems with letting the requesting party weed through files

Provides the other party access to irrevelant info Access to files waives the compelled partyrsquos objection

to production of materials that are protected from discovery

Doesnrsquot save time ndash will have to go through files anyway to see what files the other side has seen

- For Physical Mental Exams must show lsquogood causersquo (R 35)o Only can examine people who are parties or who are in the custody of

parties o These custody3rd party ndash 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 doesnrsquot 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 amp

objections Punishes parties for unjustified requests amp refusals Suggest that atty fees will be an approp sanction for most

violations

14

o R 37 Series of devices designed to elicit info or respond to partiesrsquo refusal to supply info Some sanctions are available on the occurrence of

misbehavior (R 37 dampg) 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 amp

29) E-Discovery

D Discovery in an Adversarial System Privilege amp 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 Must be documents or tangible things Prepared in anticipation of a trial litigation Prepared by or for another party or by or for that partyrsquos

representativeo 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 wonrsquot if It reveals mental impressions conclusion opinions or legal

theories of counselo 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 amp testify- 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 amp the expertise is relevanto Experts range from regular professionals to exotic professionals

15

Work Product Doctrine

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 amp

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 amp party canrsquot 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 amp Creatively Bad can demonstrate one-sidedness greed amp 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 para might settle for less

- Settlements control risko Getting something is better than nothingo Trials are unpredictable amp all-or-nothingo Trials are expensive (donrsquot know how long either)

- Factors for companies to consider settlingo Investors bad press

- Contracting to Dismisso Release simplest form of settlement is a K where para 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 decisionso Parties can settle via phone meeting or exchanging docso No ct approval needed for settlement

Exceptions minors class actions multi cases (R 23 e3)

16

Prefiling agreement not to sue

Voluntary dismissal amp agreement not to sue

Dismissal with prejudice

o Settlements are binding Ks that can be attacked on the grounds of fraud duress mistake incapacity unconscionability etc

o Written settlements should contain all basic info amp must be signed and dated

o Prefiling agreements not to sue eliminate all litigation costs and carefully define scope of threatened law suit

o If para sues anyway should use R 8c affirmative defense being the arbitration amp award or should move for summary judgment (R 56b)

o If breaks settlement terms para should sue for breach of Ko Dismissal of Actions

Voluntary Dismissal para voluntarily dismisses claim before answer is filed Valuable to donrsquot need to acceptdeny para claims Valuable to para 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 para 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 donrsquot need to start all over again in back of line (like a breach of K for broken settlement)

A consent decree invokes the courtrsquos jurisdiction to enforce the settlement

Aka stipulated judgmento 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 risko 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- 3rd Party Participation in Settlement Facilitation Encouragement amp Coercion

o Mediation = assisted negotiation = for when settlements fail Goal agreement Positional mediation as what it will take to settle the case Interest mediation discovering monetary amp 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 amp 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 pointless

17

R 56

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 factso If there is an issue of material fact it might change the outcome of

the caseo If there is a genuine dispute of the issue a reasonable jury 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 hearsayo Canrsquot just offer a conclusion need supporting factso A moving party always bears the initial responsibility for informing

district ct of the basis for the motiono No requirement that moving party is required to support its motion

with affidavits etc to negate the non-moving partyrsquos claimo 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 canrsquot reply that evidence is forthcoming If so then use R 56f

If adverse (non-moving) party wins SJ doesnrsquot 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 partyrsquo favor considering which party has the burden

- To wino Moving Party with burden introduce evidence to make their claimo Moving Party wno burden claim that non-moving party doesnrsquot 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

Ctrsquos 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 partyo Yes SJ is not appropriateo No SJ is appropriate

18

Ways to knock out a casePre-answer motion amp SJ

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 donrsquot 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 judgeso 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 judgersquos bias bc a judge still rules on good amount of decisions during the trial

Procedure for recusing judge 28 USC sect 455- Where judge has

o Served as an atty in the matter in controversyo Served in gov employment amp expressed an opinion concerning the

merits of the particular case controversyo 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 amp 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)o Jury trial = R 38o Does not indicate scope of the righto 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 juryApplying the Historical Test to New Claims

- 2 part testo Compare action to actions that were available in 1791o Determine the remedy sought

Only ask 2nd question is there is no appropriate analogy Exceptions Jury wonrsquot hear cases about damages if

Damages are restitutionary

19

Monetary award intertwines with injunction

- Can waive right to jury trial by failing to raise righto 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 para seeks equitable remedies amp counter-claims are money both are entitled to a jury trial

- If para 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 adjudicationo 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 juryrsquos boundaries in their role as

decision makero Law of evidenceo Power instruction juryo Directed verdicto JNOVo 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

K case

para seeks $$ damages Jury

para seeks specific perf Judge

para seeks reformation Judge

para seeks rescindment Judgee

Nuisance property case

para seeks damages Jury

para seeks injunction Judge

Stolen ring

para seeks to recover value (trover) Jury

para seeks to recover the ring

(replevlin)

Jury

Wrongful occupation of property

para seeks damages Jury

para seeks to eject Jury

20

Need some proof of what happened evidence canrsquot 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 amp 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 amp the system of jury trial

dictate the particular forms by which the system tries to assure rationality and its limits

Juries Democracy amp 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 amp 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 lsquopreponderance of evidencersquo = 51o Only matters in a perfectly balanced case which party carries the

burden of persuasion (only when it is 5050 that burden matters)

- Burden of Productiono Basic idea party who bears the burden of production has to produce

each evidence in support of each elemento Party who has the burden of persuasion also have the burden of

productiono para has the burden for the elements of the claim and has the burden

for the affirmative defenseo Requires party to produce find amp present evidenceo Summary Judgment relies on burden of production

Need sufficient evidence to allow a rational trier of fact to find in her favor

o Meeting onersquos burden does not mean that the trier of fact has to rule in your favor only that they are able to

Controlling Juries Before the Verdict- Directed Verdict

o Judgment as a matter of law before vedicto Purpose to take the case away from the jury on the ground that the

evidence is insufficient to support a verdict for the para (R 50a)o First opportunity after paralsquos case Last opportunity before the Jury

Instructions

21

Can move for a directed verdict multiple timeso No 7th A violation

For 7th A need a casecontroversy (legitimate dispute) Constitutional role of fact-finder is not required

o Ct will only look at all evidence from both sides amp ask ldquois there a substantial conflict in evidence

Need a substantial amnt not a scintillao 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 amp substance issues

Can motion multiple timeso 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 wonrsquot reach verdicts

that canrsquot be sustained by the evidence Screen jury to elimination jurors who will likely

reach irrational verdicts (bc of sympathies or dimness)

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 juryo Prerequisite a motion for a directed verdict

Donrsquot move for a DV canrsquot move for a JNOV Purpose of Prerequisite

Preserves sufficiency of the evidence as a question of law

Calls the court amp partyrsquos 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 scripto Judges should not let cases go to jury without a sufficient amount of

evidenceo JNOVrsquos almost always result in an appeal

Only motion denied that can be immediately appealedo Little authority for the standard for reviewing a trial judgersquos JNOVo Credibility issues are always for the jury (Judge shouldnrsquot be 13th

juror)- New Trial

o Granting JNOV = wrong winnero New trial = a start-over not a declaration of who should have wono 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

22

Judgment as a Matter of Law- Directed verdict (R 50a)

before jury- JNOV (R 50b) after jury

Verdict Problem Bad instructions given or jury didnrsquot understand

instructions ldquoJNOV literdquo Judge doesnrsquot want to direct a verdict so will try it

again Judge will rule on new trial amp JNOV motion

together (R 59d)o No interlocutory appeals for new trials in federal ct

VIII Respect for Judgments

- Procedural rules serve 2 purposeso Air disputes completely and reach and accurate amp just outcomeo Seek to end disputes even if outcome is less than desirable

- Finality statutes of limitation claim preclusion amp issue preclusion- Claim preclusion forbids a party from relitigating a claim that should have

been raised in former litigationo Claim preclusion = ldquores judicatardquoo Goals efficiency finality consistent results

- Issue preclusion when some issue involved in that claim has been previously litigatedo Issue preclusion = ldquocollateral estoppelrdquo

A Claim Preclusion Res judicata Same claim amp same parties 4 prerequisites needed

- Claim in 2nd action must be same claim that was litigated in the 1st action- Parties must be the same- Judgment rendered in 1st action must be final- Judgment must have been rendered on the merits of the case

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 para litigated a subset of all available

disputes between the parties in the 1st suit

- Restatement Test of what is a claimo When a valid and final judgment rendered in an action extinguishes a

paralsquos claim the claim extinguished all right of the para to remedies against the with respect 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 ldquotransactionrdquo and what groupings constitute a ldquoseriesrdquo 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 partiesrsquo expectations or business understanding or usage

Between the Same Parties- Claim preclusion only works between those who were the parties to both the

1st amp 2nd lawsuits

23

Note claims that could not be joined will not be barred by claim preclusion

Interrelated by same transaction or series of transactions

2 Constitutional Prerequisites 1- Notice 2- Actual parties must know that they are repping the interests of others

JNOV = R 50New trial = R 59

- Generally separate individuals are regarded as having separate claims- Several exceptions

o Privity an ongoing or contractual relationship (most important)o Substantive Legal relationship ex successive ownership of land with

easements 1 party sues to enforce the easement against the 2nd party amp wins 2nd party sells to 3rd party ndash 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 amp Claim Preclusiono Was the issue decided in the proper adjudication identical with the

issue presented in the action in questiono Was there a final judgmento Was the party against whom the plea is asserted a party or a person

in privity with a party in the prior adjudicationo Was the issue in the 1st case competently fully amp 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 ldquoOn the Meritsrdquo- Not all judgments receive preclusive effect- Cts may attach preclusive effect bc

o Ct actually considered and ruled on the merits of the caseo 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 effecto Full jury trial = Yes preclusive effecto Directed verdict = Yes preclusive effecto Summary Judgment = Yes preclusive effecto 12b6 = depends

Sup Ct has ruled that a dismissal 12b6 ruling is a judgment on the merits

But states have different rules amp 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 amp Compulsory Counterclaims

- Failure to bring a compulsory counterclaim precludes from bringing it againo 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 amp essential to prior judgment- Need an issue of fact or law that was actually litigated and determined by a

valid amp final judgment and the determination is essential to the judgment

24

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 amp 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 litigationo Evidence to the record = trial transcript jury instructions

Between Which Parties- The ldquoVictimrdquo of Preclusion

o Old common law mutuality was a requirement for both claim amp 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 amp 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 wifersquos victory

New rule husband can take advantage of issue preclusion to prevent RR re-litigating case bc RR already had a full amp fair opportunity to litigate

Victim bc if RR won in 1st case canrsquot take advantage bc husband was not a party in the 1st case

- The Precludero General rule where a para 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 para uses the prior determination like a sword

para tries to hold to prior outcome (where litigated amp lost) Good for paras can wait amp 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 para already lost suing another on same issue

o Remember 2 goals of issue preclusion Consistency of verdicts Efficiency

25

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

- These are all now found in Rule 12 b (1)-(5)

- Rule 12 b (6) para has failed to state a claim upon which relief may be grantedo 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 processo 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 amp ethically alter it so that it will withstand a 2nd motion to dismiss

- Haddle v Garrison o Distinction btwn fact amp law is gray events have a legal significance o If parties disagree about

What happened Summary Judgment Given everything that para has shown no reasonable fact

finder could find for para Legal significance of same facts R 12b6

Given all of paras facts are true para does not have a claim No fact-finder needed

o Legal conclusion is law- Consistency in Pleading Rule 8e2

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 trialsettlement 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 amp client conducto Makes standards immediately relevanto Establishes an interlocking set of standards procedures amp sanctions

a mini-regulatory regime that affects but does not directly regulate the entire conduct of litigation

o 11a signature w phone number amp 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

7

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

canrsquot do addtrsquol investigation wout discovery

Denials of facts are warranted on evidence or are based on a lack of infobelief

o 11b2a clients arenrsquot responsible for attyrsquos error of law o 11 b3 A party could be sanctioned for making up factso 11 c provides for sanctions either my a separate motion (within 21

days) or by courtrsquos 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 sanctiono 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

o Fraud or mistake bc punitive damages (remedial purpose) labeling behavior as deceitful stigma

o Need to say ldquowhyrdquo 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 amp complaint oro Within 60 days after the date when the request for waiver was sent if

the summons has been timely waived oro Within 90 days for a with an address outside any judicial district in

the US Pre-Answer Motion

- Rule 7b Motions o Must be in writing with specific relief soughto Need notice of the motion to the other party

8

R 12a

12 b motions1 subject matter jurisd2 personal jurisd3 venue4 insufficiency of process (defect)5 insufficiency of service of process (defect in method)6 failureclaim7 failure to join

o Any info necessary for granting the motion o Memo explaining with reference to the facts of the case and to

supporting authorities the basis for the motion- Pre-answer motions include

o Reasons why the court should not processo Assertions that the complaint (even if true) provides no basis for relief

soughto Denialso Affirmative Defenseso Requests for clarification andor more information

- If pre-answer motion is denied then have 10 days to file an answer

- If donrsquot make motions within time period then waives them (R 12g h)o Except for jurisdiction ndash thatrsquos whenever

- Can combine pre-answer motions in the motion

Answer

- If cannot make a 12b motion then must respond to its factual allegations

- Denialso R 8b Defenses

shall admit or deny allegations in complaint If a party doesnrsquot know ndash then so state and it will be treated

like a denial

Dilatory Pleas(responses that delay suit but donrsquot address merits of case)

Challenges to jurisdiction ldquonot hererdquo

Pleas in suspension challenged paralsquos right to bring action until some

problem was solved ldquonot nowrdquoPleas in Abatement

challenged various other procedural defects in the complaint (eg spelling another claim btwn parties)

ldquonot until defect has been solvedrdquoNow

Rule 12 (b)(1)-(5)

Preemptory pleas(grapple with legal amp factual merits of a claim)

Demurrer conceded the truth of allegations but questioned

their legal sufficiency ldquoso whatrdquoNow 12b6

Preemptory pleas(grapple with legal amp factual merits of a claim)

TraverseConceded the legal sufficiency but denied the factual

allegations as true ldquonot truerdquoConfession amp Avoidance

Conceded the truth of facts and the legal sufficiency but alleged different facts that changed their

significance ldquoyes butrdquoNow

Traverse = 8b (defense)Confession amp Avoid = Rule 8c (affirmative defense)

9

Waiver triggers

12 g amp 12 h

12 e motionmore definitive statement

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 amp no response effect of a denial General denial careful Only when you really deny everything

Ineffective Have to admit the truth in complaint amp answer

Except if you donrsquot know deny

- Affirmative Defenseso Line between factual denial amp affirmative defense is blurry

Affirm Best but then has the burdeno 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 amp facts may change as the

suit develops particularly from discovery- Common for parties to learn that their initial understanding of their

claimsdefenses were wrong or incomplete- Rule 15 governs between 2 goals justice amp prejudice

o Justice = easy amendment so that pleadings can reflect partiesrsquo changed view of the case

o Prejudice = Canrsquot burden the other side will be burdened if storyargument continues to shift

- Two typeso 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

lsquoclosesrsquo 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 amp no time limit either just have to amend before an answer to the counterclaim is filed

o Amendments with leave of court (judgersquos permission consent of other party) R 15 a Most common type of amendment

10

R 15Leave to amend shall be freely

given when justice so requires

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 partiesrsquo 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 partiesrsquo 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

As trial approaches ct becomes less flexible Tension btwn 2 goals (justice amp prejudice) increases

R 15 makes no distinction btwn factual amp legal changes to the pleadings

- Statute of Limitations amp R 15 Not a defense to amendmentso As long as para 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 Canrsquot add an unrelated claim ndash must arise out of the same transaction

IV Discovery

A Modern Discovery Discovery = interplay of relevance privilege amp 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 claimdefense) Discovery Rules establish 3 stages

- Requirement of mandatory disclosure- Provision for further discovery (limited to claims amp defenses)- Provision for broader discovery if party demonstrates lsquogood causersquo 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 providepermit 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 amp Limits Relevance amp Privilege

11

- To be discoverable info must be relevant amp not privileged- Info may be discoverable even though it wonrsquot canrsquot be admissible as

evidence at trial Relevance

- Relevant links discovery ndash law of pleading ndash law of evidence ndash common sense- Still not entitled to all discovery that is relevant- Relevant reasons for event occurring not potential other reasons party

could have used- 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 ndash cliento doctor ndash patiento therapist ndash patiento religious minister ndash 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 amp 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 Computations of damages claimed (make copies allow for

inspection of docs available) or insurance agreements Must be made in writing signed amp served If donrsquot disclose a witnessinfo used R 37c1 will likely bar the

party from using it (unless it is harmless) Duty to supplement this info when more info becomes

available R 26 e1o 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 amp counsel discuss the way discovery amp other pre-trial

matters should proceedo Parties cannot use interrogs deps or any other means before basic

info is exchangedo Exempt categories from initial disclosure (see R 26a1E)

12

ExampleMay 1 Initial mtgMay 14 Last day to exchange basic infoMay 21 Scheduling ConfAll with duty to supplement

Action for review on an administrative record Petition for habeas corpus other proceeding to challenge a

criminal conviction sentence An action brought wout 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 Addtrsquol 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 amp discretionary limits imposed by the judge

Depositions- Deposition = a witnessrsquo sworn out-of-court testimony that is reduced to

writing for later use in court or for discovery purposes- Oral deposition

o Occur in an atty office with all attys present the witness amp court reporter or recording device

o If deposing a non-party send a subpoena to ensure presenceo Counsel doesnrsquot cross-examine unless need clarificationo Deposition may be admitted at trial if witness canrsquot testify in persono Total number of depositions by one side may not exceed 10o No deposition can exceed 7 hrs in one dayo No one can get deposed more than once wout court or opposing

party permissiono A party may depose an organization or corporation orgcorp will

appoint an agent(s) to testify on its behalfo Motion to terminate or limit deposition must be made in a non-

argumentative non-suggestive amp concise mannero If counsel or witnessparty 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

13

R 28 30 31 amp 32

o Atty writes down questions sends them to a ct reporter at the deposition who asks the question and records the witnessrsquo 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 amp 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 amp Inspection of Documents amp Things- Document = any medium of information (email letter photo video

etc)o No limit to of docs requestedo Can only hold back doc if going to use it for perjury

- Procedureo Party send a R 34 request

Request must describe documents sought with reasonable particularity

Permissible to describe the requested documents by categoryo Non-party send a subpoena issued under R 45a1C

- The burden of productiono Party may comply with production by producing relevant

documents as kept in the normal course of businesso Problems with letting the requesting party weed through files

Provides the other party access to irrevelant info Access to files waives the compelled partyrsquos objection

to production of materials that are protected from discovery

Doesnrsquot save time ndash will have to go through files anyway to see what files the other side has seen

- For Physical Mental Exams must show lsquogood causersquo (R 35)o Only can examine people who are parties or who are in the custody of

parties o These custody3rd party ndash 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 doesnrsquot 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 amp

objections Punishes parties for unjustified requests amp refusals Suggest that atty fees will be an approp sanction for most

violations

14

o R 37 Series of devices designed to elicit info or respond to partiesrsquo refusal to supply info Some sanctions are available on the occurrence of

misbehavior (R 37 dampg) 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 amp

29) E-Discovery

D Discovery in an Adversarial System Privilege amp 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 Must be documents or tangible things Prepared in anticipation of a trial litigation Prepared by or for another party or by or for that partyrsquos

representativeo 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 wonrsquot if It reveals mental impressions conclusion opinions or legal

theories of counselo 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 amp testify- 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 amp the expertise is relevanto Experts range from regular professionals to exotic professionals

15

Work Product Doctrine

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 amp

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 amp party canrsquot 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 amp Creatively Bad can demonstrate one-sidedness greed amp 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 para might settle for less

- Settlements control risko Getting something is better than nothingo Trials are unpredictable amp all-or-nothingo Trials are expensive (donrsquot know how long either)

- Factors for companies to consider settlingo Investors bad press

- Contracting to Dismisso Release simplest form of settlement is a K where para 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 decisionso Parties can settle via phone meeting or exchanging docso No ct approval needed for settlement

Exceptions minors class actions multi cases (R 23 e3)

16

Prefiling agreement not to sue

Voluntary dismissal amp agreement not to sue

Dismissal with prejudice

o Settlements are binding Ks that can be attacked on the grounds of fraud duress mistake incapacity unconscionability etc

o Written settlements should contain all basic info amp must be signed and dated

o Prefiling agreements not to sue eliminate all litigation costs and carefully define scope of threatened law suit

o If para sues anyway should use R 8c affirmative defense being the arbitration amp award or should move for summary judgment (R 56b)

o If breaks settlement terms para should sue for breach of Ko Dismissal of Actions

Voluntary Dismissal para voluntarily dismisses claim before answer is filed Valuable to donrsquot need to acceptdeny para claims Valuable to para 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 para 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 donrsquot need to start all over again in back of line (like a breach of K for broken settlement)

A consent decree invokes the courtrsquos jurisdiction to enforce the settlement

Aka stipulated judgmento 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 risko 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- 3rd Party Participation in Settlement Facilitation Encouragement amp Coercion

o Mediation = assisted negotiation = for when settlements fail Goal agreement Positional mediation as what it will take to settle the case Interest mediation discovering monetary amp 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 amp 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 pointless

17

R 56

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 factso If there is an issue of material fact it might change the outcome of

the caseo If there is a genuine dispute of the issue a reasonable jury 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 hearsayo Canrsquot just offer a conclusion need supporting factso A moving party always bears the initial responsibility for informing

district ct of the basis for the motiono No requirement that moving party is required to support its motion

with affidavits etc to negate the non-moving partyrsquos claimo 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 canrsquot reply that evidence is forthcoming If so then use R 56f

If adverse (non-moving) party wins SJ doesnrsquot 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 partyrsquo favor considering which party has the burden

- To wino Moving Party with burden introduce evidence to make their claimo Moving Party wno burden claim that non-moving party doesnrsquot 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

Ctrsquos 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 partyo Yes SJ is not appropriateo No SJ is appropriate

18

Ways to knock out a casePre-answer motion amp SJ

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 donrsquot 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 judgeso 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 judgersquos bias bc a judge still rules on good amount of decisions during the trial

Procedure for recusing judge 28 USC sect 455- Where judge has

o Served as an atty in the matter in controversyo Served in gov employment amp expressed an opinion concerning the

merits of the particular case controversyo 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 amp 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)o Jury trial = R 38o Does not indicate scope of the righto 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 juryApplying the Historical Test to New Claims

- 2 part testo Compare action to actions that were available in 1791o Determine the remedy sought

Only ask 2nd question is there is no appropriate analogy Exceptions Jury wonrsquot hear cases about damages if

Damages are restitutionary

19

Monetary award intertwines with injunction

- Can waive right to jury trial by failing to raise righto 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 para seeks equitable remedies amp counter-claims are money both are entitled to a jury trial

- If para 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 adjudicationo 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 juryrsquos boundaries in their role as

decision makero Law of evidenceo Power instruction juryo Directed verdicto JNOVo 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

K case

para seeks $$ damages Jury

para seeks specific perf Judge

para seeks reformation Judge

para seeks rescindment Judgee

Nuisance property case

para seeks damages Jury

para seeks injunction Judge

Stolen ring

para seeks to recover value (trover) Jury

para seeks to recover the ring

(replevlin)

Jury

Wrongful occupation of property

para seeks damages Jury

para seeks to eject Jury

20

Need some proof of what happened evidence canrsquot 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 amp 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 amp the system of jury trial

dictate the particular forms by which the system tries to assure rationality and its limits

Juries Democracy amp 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 amp 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 lsquopreponderance of evidencersquo = 51o Only matters in a perfectly balanced case which party carries the

burden of persuasion (only when it is 5050 that burden matters)

- Burden of Productiono Basic idea party who bears the burden of production has to produce

each evidence in support of each elemento Party who has the burden of persuasion also have the burden of

productiono para has the burden for the elements of the claim and has the burden

for the affirmative defenseo Requires party to produce find amp present evidenceo Summary Judgment relies on burden of production

Need sufficient evidence to allow a rational trier of fact to find in her favor

o Meeting onersquos burden does not mean that the trier of fact has to rule in your favor only that they are able to

Controlling Juries Before the Verdict- Directed Verdict

o Judgment as a matter of law before vedicto Purpose to take the case away from the jury on the ground that the

evidence is insufficient to support a verdict for the para (R 50a)o First opportunity after paralsquos case Last opportunity before the Jury

Instructions

21

Can move for a directed verdict multiple timeso No 7th A violation

For 7th A need a casecontroversy (legitimate dispute) Constitutional role of fact-finder is not required

o Ct will only look at all evidence from both sides amp ask ldquois there a substantial conflict in evidence

Need a substantial amnt not a scintillao 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 amp substance issues

Can motion multiple timeso 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 wonrsquot reach verdicts

that canrsquot be sustained by the evidence Screen jury to elimination jurors who will likely

reach irrational verdicts (bc of sympathies or dimness)

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 juryo Prerequisite a motion for a directed verdict

Donrsquot move for a DV canrsquot move for a JNOV Purpose of Prerequisite

Preserves sufficiency of the evidence as a question of law

Calls the court amp partyrsquos 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 scripto Judges should not let cases go to jury without a sufficient amount of

evidenceo JNOVrsquos almost always result in an appeal

Only motion denied that can be immediately appealedo Little authority for the standard for reviewing a trial judgersquos JNOVo Credibility issues are always for the jury (Judge shouldnrsquot be 13th

juror)- New Trial

o Granting JNOV = wrong winnero New trial = a start-over not a declaration of who should have wono 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

22

Judgment as a Matter of Law- Directed verdict (R 50a)

before jury- JNOV (R 50b) after jury

Verdict Problem Bad instructions given or jury didnrsquot understand

instructions ldquoJNOV literdquo Judge doesnrsquot want to direct a verdict so will try it

again Judge will rule on new trial amp JNOV motion

together (R 59d)o No interlocutory appeals for new trials in federal ct

VIII Respect for Judgments

- Procedural rules serve 2 purposeso Air disputes completely and reach and accurate amp just outcomeo Seek to end disputes even if outcome is less than desirable

- Finality statutes of limitation claim preclusion amp issue preclusion- Claim preclusion forbids a party from relitigating a claim that should have

been raised in former litigationo Claim preclusion = ldquores judicatardquoo Goals efficiency finality consistent results

- Issue preclusion when some issue involved in that claim has been previously litigatedo Issue preclusion = ldquocollateral estoppelrdquo

A Claim Preclusion Res judicata Same claim amp same parties 4 prerequisites needed

- Claim in 2nd action must be same claim that was litigated in the 1st action- Parties must be the same- Judgment rendered in 1st action must be final- Judgment must have been rendered on the merits of the case

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 para litigated a subset of all available

disputes between the parties in the 1st suit

- Restatement Test of what is a claimo When a valid and final judgment rendered in an action extinguishes a

paralsquos claim the claim extinguished all right of the para to remedies against the with respect 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 ldquotransactionrdquo and what groupings constitute a ldquoseriesrdquo 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 partiesrsquo expectations or business understanding or usage

Between the Same Parties- Claim preclusion only works between those who were the parties to both the

1st amp 2nd lawsuits

23

Note claims that could not be joined will not be barred by claim preclusion

Interrelated by same transaction or series of transactions

2 Constitutional Prerequisites 1- Notice 2- Actual parties must know that they are repping the interests of others

JNOV = R 50New trial = R 59

- Generally separate individuals are regarded as having separate claims- Several exceptions

o Privity an ongoing or contractual relationship (most important)o Substantive Legal relationship ex successive ownership of land with

easements 1 party sues to enforce the easement against the 2nd party amp wins 2nd party sells to 3rd party ndash 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 amp Claim Preclusiono Was the issue decided in the proper adjudication identical with the

issue presented in the action in questiono Was there a final judgmento Was the party against whom the plea is asserted a party or a person

in privity with a party in the prior adjudicationo Was the issue in the 1st case competently fully amp 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 ldquoOn the Meritsrdquo- Not all judgments receive preclusive effect- Cts may attach preclusive effect bc

o Ct actually considered and ruled on the merits of the caseo 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 effecto Full jury trial = Yes preclusive effecto Directed verdict = Yes preclusive effecto Summary Judgment = Yes preclusive effecto 12b6 = depends

Sup Ct has ruled that a dismissal 12b6 ruling is a judgment on the merits

But states have different rules amp 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 amp Compulsory Counterclaims

- Failure to bring a compulsory counterclaim precludes from bringing it againo 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 amp essential to prior judgment- Need an issue of fact or law that was actually litigated and determined by a

valid amp final judgment and the determination is essential to the judgment

24

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 amp 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 litigationo Evidence to the record = trial transcript jury instructions

Between Which Parties- The ldquoVictimrdquo of Preclusion

o Old common law mutuality was a requirement for both claim amp 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 amp 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 wifersquos victory

New rule husband can take advantage of issue preclusion to prevent RR re-litigating case bc RR already had a full amp fair opportunity to litigate

Victim bc if RR won in 1st case canrsquot take advantage bc husband was not a party in the 1st case

- The Precludero General rule where a para 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 para uses the prior determination like a sword

para tries to hold to prior outcome (where litigated amp lost) Good for paras can wait amp 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 para already lost suing another on same issue

o Remember 2 goals of issue preclusion Consistency of verdicts Efficiency

25

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

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

canrsquot do addtrsquol investigation wout discovery

Denials of facts are warranted on evidence or are based on a lack of infobelief

o 11b2a clients arenrsquot responsible for attyrsquos error of law o 11 b3 A party could be sanctioned for making up factso 11 c provides for sanctions either my a separate motion (within 21

days) or by courtrsquos 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 sanctiono 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

o Fraud or mistake bc punitive damages (remedial purpose) labeling behavior as deceitful stigma

o Need to say ldquowhyrdquo 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 amp complaint oro Within 60 days after the date when the request for waiver was sent if

the summons has been timely waived oro Within 90 days for a with an address outside any judicial district in

the US Pre-Answer Motion

- Rule 7b Motions o Must be in writing with specific relief soughto Need notice of the motion to the other party

8

R 12a

12 b motions1 subject matter jurisd2 personal jurisd3 venue4 insufficiency of process (defect)5 insufficiency of service of process (defect in method)6 failureclaim7 failure to join

o Any info necessary for granting the motion o Memo explaining with reference to the facts of the case and to

supporting authorities the basis for the motion- Pre-answer motions include

o Reasons why the court should not processo Assertions that the complaint (even if true) provides no basis for relief

soughto Denialso Affirmative Defenseso Requests for clarification andor more information

- If pre-answer motion is denied then have 10 days to file an answer

- If donrsquot make motions within time period then waives them (R 12g h)o Except for jurisdiction ndash thatrsquos whenever

- Can combine pre-answer motions in the motion

Answer

- If cannot make a 12b motion then must respond to its factual allegations

- Denialso R 8b Defenses

shall admit or deny allegations in complaint If a party doesnrsquot know ndash then so state and it will be treated

like a denial

Dilatory Pleas(responses that delay suit but donrsquot address merits of case)

Challenges to jurisdiction ldquonot hererdquo

Pleas in suspension challenged paralsquos right to bring action until some

problem was solved ldquonot nowrdquoPleas in Abatement

challenged various other procedural defects in the complaint (eg spelling another claim btwn parties)

ldquonot until defect has been solvedrdquoNow

Rule 12 (b)(1)-(5)

Preemptory pleas(grapple with legal amp factual merits of a claim)

Demurrer conceded the truth of allegations but questioned

their legal sufficiency ldquoso whatrdquoNow 12b6

Preemptory pleas(grapple with legal amp factual merits of a claim)

TraverseConceded the legal sufficiency but denied the factual

allegations as true ldquonot truerdquoConfession amp Avoidance

Conceded the truth of facts and the legal sufficiency but alleged different facts that changed their

significance ldquoyes butrdquoNow

Traverse = 8b (defense)Confession amp Avoid = Rule 8c (affirmative defense)

9

Waiver triggers

12 g amp 12 h

12 e motionmore definitive statement

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 amp no response effect of a denial General denial careful Only when you really deny everything

Ineffective Have to admit the truth in complaint amp answer

Except if you donrsquot know deny

- Affirmative Defenseso Line between factual denial amp affirmative defense is blurry

Affirm Best but then has the burdeno 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 amp facts may change as the

suit develops particularly from discovery- Common for parties to learn that their initial understanding of their

claimsdefenses were wrong or incomplete- Rule 15 governs between 2 goals justice amp prejudice

o Justice = easy amendment so that pleadings can reflect partiesrsquo changed view of the case

o Prejudice = Canrsquot burden the other side will be burdened if storyargument continues to shift

- Two typeso 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

lsquoclosesrsquo 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 amp no time limit either just have to amend before an answer to the counterclaim is filed

o Amendments with leave of court (judgersquos permission consent of other party) R 15 a Most common type of amendment

10

R 15Leave to amend shall be freely

given when justice so requires

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 partiesrsquo 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 partiesrsquo 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

As trial approaches ct becomes less flexible Tension btwn 2 goals (justice amp prejudice) increases

R 15 makes no distinction btwn factual amp legal changes to the pleadings

- Statute of Limitations amp R 15 Not a defense to amendmentso As long as para 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 Canrsquot add an unrelated claim ndash must arise out of the same transaction

IV Discovery

A Modern Discovery Discovery = interplay of relevance privilege amp 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 claimdefense) Discovery Rules establish 3 stages

- Requirement of mandatory disclosure- Provision for further discovery (limited to claims amp defenses)- Provision for broader discovery if party demonstrates lsquogood causersquo 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 providepermit 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 amp Limits Relevance amp Privilege

11

- To be discoverable info must be relevant amp not privileged- Info may be discoverable even though it wonrsquot canrsquot be admissible as

evidence at trial Relevance

- Relevant links discovery ndash law of pleading ndash law of evidence ndash common sense- Still not entitled to all discovery that is relevant- Relevant reasons for event occurring not potential other reasons party

could have used- 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 ndash cliento doctor ndash patiento therapist ndash patiento religious minister ndash 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 amp 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 Computations of damages claimed (make copies allow for

inspection of docs available) or insurance agreements Must be made in writing signed amp served If donrsquot disclose a witnessinfo used R 37c1 will likely bar the

party from using it (unless it is harmless) Duty to supplement this info when more info becomes

available R 26 e1o 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 amp counsel discuss the way discovery amp other pre-trial

matters should proceedo Parties cannot use interrogs deps or any other means before basic

info is exchangedo Exempt categories from initial disclosure (see R 26a1E)

12

ExampleMay 1 Initial mtgMay 14 Last day to exchange basic infoMay 21 Scheduling ConfAll with duty to supplement

Action for review on an administrative record Petition for habeas corpus other proceeding to challenge a

criminal conviction sentence An action brought wout 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 Addtrsquol 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 amp discretionary limits imposed by the judge

Depositions- Deposition = a witnessrsquo sworn out-of-court testimony that is reduced to

writing for later use in court or for discovery purposes- Oral deposition

o Occur in an atty office with all attys present the witness amp court reporter or recording device

o If deposing a non-party send a subpoena to ensure presenceo Counsel doesnrsquot cross-examine unless need clarificationo Deposition may be admitted at trial if witness canrsquot testify in persono Total number of depositions by one side may not exceed 10o No deposition can exceed 7 hrs in one dayo No one can get deposed more than once wout court or opposing

party permissiono A party may depose an organization or corporation orgcorp will

appoint an agent(s) to testify on its behalfo Motion to terminate or limit deposition must be made in a non-

argumentative non-suggestive amp concise mannero If counsel or witnessparty 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

13

R 28 30 31 amp 32

o Atty writes down questions sends them to a ct reporter at the deposition who asks the question and records the witnessrsquo 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 amp 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 amp Inspection of Documents amp Things- Document = any medium of information (email letter photo video

etc)o No limit to of docs requestedo Can only hold back doc if going to use it for perjury

- Procedureo Party send a R 34 request

Request must describe documents sought with reasonable particularity

Permissible to describe the requested documents by categoryo Non-party send a subpoena issued under R 45a1C

- The burden of productiono Party may comply with production by producing relevant

documents as kept in the normal course of businesso Problems with letting the requesting party weed through files

Provides the other party access to irrevelant info Access to files waives the compelled partyrsquos objection

to production of materials that are protected from discovery

Doesnrsquot save time ndash will have to go through files anyway to see what files the other side has seen

- For Physical Mental Exams must show lsquogood causersquo (R 35)o Only can examine people who are parties or who are in the custody of

parties o These custody3rd party ndash 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 doesnrsquot 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 amp

objections Punishes parties for unjustified requests amp refusals Suggest that atty fees will be an approp sanction for most

violations

14

o R 37 Series of devices designed to elicit info or respond to partiesrsquo refusal to supply info Some sanctions are available on the occurrence of

misbehavior (R 37 dampg) 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 amp

29) E-Discovery

D Discovery in an Adversarial System Privilege amp 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 Must be documents or tangible things Prepared in anticipation of a trial litigation Prepared by or for another party or by or for that partyrsquos

representativeo 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 wonrsquot if It reveals mental impressions conclusion opinions or legal

theories of counselo 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 amp testify- 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 amp the expertise is relevanto Experts range from regular professionals to exotic professionals

15

Work Product Doctrine

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 amp

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 amp party canrsquot 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 amp Creatively Bad can demonstrate one-sidedness greed amp 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 para might settle for less

- Settlements control risko Getting something is better than nothingo Trials are unpredictable amp all-or-nothingo Trials are expensive (donrsquot know how long either)

- Factors for companies to consider settlingo Investors bad press

- Contracting to Dismisso Release simplest form of settlement is a K where para 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 decisionso Parties can settle via phone meeting or exchanging docso No ct approval needed for settlement

Exceptions minors class actions multi cases (R 23 e3)

16

Prefiling agreement not to sue

Voluntary dismissal amp agreement not to sue

Dismissal with prejudice

o Settlements are binding Ks that can be attacked on the grounds of fraud duress mistake incapacity unconscionability etc

o Written settlements should contain all basic info amp must be signed and dated

o Prefiling agreements not to sue eliminate all litigation costs and carefully define scope of threatened law suit

o If para sues anyway should use R 8c affirmative defense being the arbitration amp award or should move for summary judgment (R 56b)

o If breaks settlement terms para should sue for breach of Ko Dismissal of Actions

Voluntary Dismissal para voluntarily dismisses claim before answer is filed Valuable to donrsquot need to acceptdeny para claims Valuable to para 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 para 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 donrsquot need to start all over again in back of line (like a breach of K for broken settlement)

A consent decree invokes the courtrsquos jurisdiction to enforce the settlement

Aka stipulated judgmento 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 risko 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- 3rd Party Participation in Settlement Facilitation Encouragement amp Coercion

o Mediation = assisted negotiation = for when settlements fail Goal agreement Positional mediation as what it will take to settle the case Interest mediation discovering monetary amp 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 amp 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 pointless

17

R 56

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 factso If there is an issue of material fact it might change the outcome of

the caseo If there is a genuine dispute of the issue a reasonable jury 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 hearsayo Canrsquot just offer a conclusion need supporting factso A moving party always bears the initial responsibility for informing

district ct of the basis for the motiono No requirement that moving party is required to support its motion

with affidavits etc to negate the non-moving partyrsquos claimo 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 canrsquot reply that evidence is forthcoming If so then use R 56f

If adverse (non-moving) party wins SJ doesnrsquot 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 partyrsquo favor considering which party has the burden

- To wino Moving Party with burden introduce evidence to make their claimo Moving Party wno burden claim that non-moving party doesnrsquot 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

Ctrsquos 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 partyo Yes SJ is not appropriateo No SJ is appropriate

18

Ways to knock out a casePre-answer motion amp SJ

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 donrsquot 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 judgeso 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 judgersquos bias bc a judge still rules on good amount of decisions during the trial

Procedure for recusing judge 28 USC sect 455- Where judge has

o Served as an atty in the matter in controversyo Served in gov employment amp expressed an opinion concerning the

merits of the particular case controversyo 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 amp 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)o Jury trial = R 38o Does not indicate scope of the righto 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 juryApplying the Historical Test to New Claims

- 2 part testo Compare action to actions that were available in 1791o Determine the remedy sought

Only ask 2nd question is there is no appropriate analogy Exceptions Jury wonrsquot hear cases about damages if

Damages are restitutionary

19

Monetary award intertwines with injunction

- Can waive right to jury trial by failing to raise righto 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 para seeks equitable remedies amp counter-claims are money both are entitled to a jury trial

- If para 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 adjudicationo 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 juryrsquos boundaries in their role as

decision makero Law of evidenceo Power instruction juryo Directed verdicto JNOVo 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

K case

para seeks $$ damages Jury

para seeks specific perf Judge

para seeks reformation Judge

para seeks rescindment Judgee

Nuisance property case

para seeks damages Jury

para seeks injunction Judge

Stolen ring

para seeks to recover value (trover) Jury

para seeks to recover the ring

(replevlin)

Jury

Wrongful occupation of property

para seeks damages Jury

para seeks to eject Jury

20

Need some proof of what happened evidence canrsquot 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 amp 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 amp the system of jury trial

dictate the particular forms by which the system tries to assure rationality and its limits

Juries Democracy amp 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 amp 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 lsquopreponderance of evidencersquo = 51o Only matters in a perfectly balanced case which party carries the

burden of persuasion (only when it is 5050 that burden matters)

- Burden of Productiono Basic idea party who bears the burden of production has to produce

each evidence in support of each elemento Party who has the burden of persuasion also have the burden of

productiono para has the burden for the elements of the claim and has the burden

for the affirmative defenseo Requires party to produce find amp present evidenceo Summary Judgment relies on burden of production

Need sufficient evidence to allow a rational trier of fact to find in her favor

o Meeting onersquos burden does not mean that the trier of fact has to rule in your favor only that they are able to

Controlling Juries Before the Verdict- Directed Verdict

o Judgment as a matter of law before vedicto Purpose to take the case away from the jury on the ground that the

evidence is insufficient to support a verdict for the para (R 50a)o First opportunity after paralsquos case Last opportunity before the Jury

Instructions

21

Can move for a directed verdict multiple timeso No 7th A violation

For 7th A need a casecontroversy (legitimate dispute) Constitutional role of fact-finder is not required

o Ct will only look at all evidence from both sides amp ask ldquois there a substantial conflict in evidence

Need a substantial amnt not a scintillao 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 amp substance issues

Can motion multiple timeso 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 wonrsquot reach verdicts

that canrsquot be sustained by the evidence Screen jury to elimination jurors who will likely

reach irrational verdicts (bc of sympathies or dimness)

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 juryo Prerequisite a motion for a directed verdict

Donrsquot move for a DV canrsquot move for a JNOV Purpose of Prerequisite

Preserves sufficiency of the evidence as a question of law

Calls the court amp partyrsquos 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 scripto Judges should not let cases go to jury without a sufficient amount of

evidenceo JNOVrsquos almost always result in an appeal

Only motion denied that can be immediately appealedo Little authority for the standard for reviewing a trial judgersquos JNOVo Credibility issues are always for the jury (Judge shouldnrsquot be 13th

juror)- New Trial

o Granting JNOV = wrong winnero New trial = a start-over not a declaration of who should have wono 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

22

Judgment as a Matter of Law- Directed verdict (R 50a)

before jury- JNOV (R 50b) after jury

Verdict Problem Bad instructions given or jury didnrsquot understand

instructions ldquoJNOV literdquo Judge doesnrsquot want to direct a verdict so will try it

again Judge will rule on new trial amp JNOV motion

together (R 59d)o No interlocutory appeals for new trials in federal ct

VIII Respect for Judgments

- Procedural rules serve 2 purposeso Air disputes completely and reach and accurate amp just outcomeo Seek to end disputes even if outcome is less than desirable

- Finality statutes of limitation claim preclusion amp issue preclusion- Claim preclusion forbids a party from relitigating a claim that should have

been raised in former litigationo Claim preclusion = ldquores judicatardquoo Goals efficiency finality consistent results

- Issue preclusion when some issue involved in that claim has been previously litigatedo Issue preclusion = ldquocollateral estoppelrdquo

A Claim Preclusion Res judicata Same claim amp same parties 4 prerequisites needed

- Claim in 2nd action must be same claim that was litigated in the 1st action- Parties must be the same- Judgment rendered in 1st action must be final- Judgment must have been rendered on the merits of the case

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 para litigated a subset of all available

disputes between the parties in the 1st suit

- Restatement Test of what is a claimo When a valid and final judgment rendered in an action extinguishes a

paralsquos claim the claim extinguished all right of the para to remedies against the with respect 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 ldquotransactionrdquo and what groupings constitute a ldquoseriesrdquo 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 partiesrsquo expectations or business understanding or usage

Between the Same Parties- Claim preclusion only works between those who were the parties to both the

1st amp 2nd lawsuits

23

Note claims that could not be joined will not be barred by claim preclusion

Interrelated by same transaction or series of transactions

2 Constitutional Prerequisites 1- Notice 2- Actual parties must know that they are repping the interests of others

JNOV = R 50New trial = R 59

- Generally separate individuals are regarded as having separate claims- Several exceptions

o Privity an ongoing or contractual relationship (most important)o Substantive Legal relationship ex successive ownership of land with

easements 1 party sues to enforce the easement against the 2nd party amp wins 2nd party sells to 3rd party ndash 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 amp Claim Preclusiono Was the issue decided in the proper adjudication identical with the

issue presented in the action in questiono Was there a final judgmento Was the party against whom the plea is asserted a party or a person

in privity with a party in the prior adjudicationo Was the issue in the 1st case competently fully amp 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 ldquoOn the Meritsrdquo- Not all judgments receive preclusive effect- Cts may attach preclusive effect bc

o Ct actually considered and ruled on the merits of the caseo 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 effecto Full jury trial = Yes preclusive effecto Directed verdict = Yes preclusive effecto Summary Judgment = Yes preclusive effecto 12b6 = depends

Sup Ct has ruled that a dismissal 12b6 ruling is a judgment on the merits

But states have different rules amp 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 amp Compulsory Counterclaims

- Failure to bring a compulsory counterclaim precludes from bringing it againo 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 amp essential to prior judgment- Need an issue of fact or law that was actually litigated and determined by a

valid amp final judgment and the determination is essential to the judgment

24

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 amp 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 litigationo Evidence to the record = trial transcript jury instructions

Between Which Parties- The ldquoVictimrdquo of Preclusion

o Old common law mutuality was a requirement for both claim amp 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 amp 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 wifersquos victory

New rule husband can take advantage of issue preclusion to prevent RR re-litigating case bc RR already had a full amp fair opportunity to litigate

Victim bc if RR won in 1st case canrsquot take advantage bc husband was not a party in the 1st case

- The Precludero General rule where a para 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 para uses the prior determination like a sword

para tries to hold to prior outcome (where litigated amp lost) Good for paras can wait amp 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 para already lost suing another on same issue

o Remember 2 goals of issue preclusion Consistency of verdicts Efficiency

25

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

o Any info necessary for granting the motion o Memo explaining with reference to the facts of the case and to

supporting authorities the basis for the motion- Pre-answer motions include

o Reasons why the court should not processo Assertions that the complaint (even if true) provides no basis for relief

soughto Denialso Affirmative Defenseso Requests for clarification andor more information

- If pre-answer motion is denied then have 10 days to file an answer

- If donrsquot make motions within time period then waives them (R 12g h)o Except for jurisdiction ndash thatrsquos whenever

- Can combine pre-answer motions in the motion

Answer

- If cannot make a 12b motion then must respond to its factual allegations

- Denialso R 8b Defenses

shall admit or deny allegations in complaint If a party doesnrsquot know ndash then so state and it will be treated

like a denial

Dilatory Pleas(responses that delay suit but donrsquot address merits of case)

Challenges to jurisdiction ldquonot hererdquo

Pleas in suspension challenged paralsquos right to bring action until some

problem was solved ldquonot nowrdquoPleas in Abatement

challenged various other procedural defects in the complaint (eg spelling another claim btwn parties)

ldquonot until defect has been solvedrdquoNow

Rule 12 (b)(1)-(5)

Preemptory pleas(grapple with legal amp factual merits of a claim)

Demurrer conceded the truth of allegations but questioned

their legal sufficiency ldquoso whatrdquoNow 12b6

Preemptory pleas(grapple with legal amp factual merits of a claim)

TraverseConceded the legal sufficiency but denied the factual

allegations as true ldquonot truerdquoConfession amp Avoidance

Conceded the truth of facts and the legal sufficiency but alleged different facts that changed their

significance ldquoyes butrdquoNow

Traverse = 8b (defense)Confession amp Avoid = Rule 8c (affirmative defense)

9

Waiver triggers

12 g amp 12 h

12 e motionmore definitive statement

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 amp no response effect of a denial General denial careful Only when you really deny everything

Ineffective Have to admit the truth in complaint amp answer

Except if you donrsquot know deny

- Affirmative Defenseso Line between factual denial amp affirmative defense is blurry

Affirm Best but then has the burdeno 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 amp facts may change as the

suit develops particularly from discovery- Common for parties to learn that their initial understanding of their

claimsdefenses were wrong or incomplete- Rule 15 governs between 2 goals justice amp prejudice

o Justice = easy amendment so that pleadings can reflect partiesrsquo changed view of the case

o Prejudice = Canrsquot burden the other side will be burdened if storyargument continues to shift

- Two typeso 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

lsquoclosesrsquo 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 amp no time limit either just have to amend before an answer to the counterclaim is filed

o Amendments with leave of court (judgersquos permission consent of other party) R 15 a Most common type of amendment

10

R 15Leave to amend shall be freely

given when justice so requires

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 partiesrsquo 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 partiesrsquo 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

As trial approaches ct becomes less flexible Tension btwn 2 goals (justice amp prejudice) increases

R 15 makes no distinction btwn factual amp legal changes to the pleadings

- Statute of Limitations amp R 15 Not a defense to amendmentso As long as para 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 Canrsquot add an unrelated claim ndash must arise out of the same transaction

IV Discovery

A Modern Discovery Discovery = interplay of relevance privilege amp 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 claimdefense) Discovery Rules establish 3 stages

- Requirement of mandatory disclosure- Provision for further discovery (limited to claims amp defenses)- Provision for broader discovery if party demonstrates lsquogood causersquo 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 providepermit 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 amp Limits Relevance amp Privilege

11

- To be discoverable info must be relevant amp not privileged- Info may be discoverable even though it wonrsquot canrsquot be admissible as

evidence at trial Relevance

- Relevant links discovery ndash law of pleading ndash law of evidence ndash common sense- Still not entitled to all discovery that is relevant- Relevant reasons for event occurring not potential other reasons party

could have used- 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 ndash cliento doctor ndash patiento therapist ndash patiento religious minister ndash 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 amp 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 Computations of damages claimed (make copies allow for

inspection of docs available) or insurance agreements Must be made in writing signed amp served If donrsquot disclose a witnessinfo used R 37c1 will likely bar the

party from using it (unless it is harmless) Duty to supplement this info when more info becomes

available R 26 e1o 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 amp counsel discuss the way discovery amp other pre-trial

matters should proceedo Parties cannot use interrogs deps or any other means before basic

info is exchangedo Exempt categories from initial disclosure (see R 26a1E)

12

ExampleMay 1 Initial mtgMay 14 Last day to exchange basic infoMay 21 Scheduling ConfAll with duty to supplement

Action for review on an administrative record Petition for habeas corpus other proceeding to challenge a

criminal conviction sentence An action brought wout 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 Addtrsquol 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 amp discretionary limits imposed by the judge

Depositions- Deposition = a witnessrsquo sworn out-of-court testimony that is reduced to

writing for later use in court or for discovery purposes- Oral deposition

o Occur in an atty office with all attys present the witness amp court reporter or recording device

o If deposing a non-party send a subpoena to ensure presenceo Counsel doesnrsquot cross-examine unless need clarificationo Deposition may be admitted at trial if witness canrsquot testify in persono Total number of depositions by one side may not exceed 10o No deposition can exceed 7 hrs in one dayo No one can get deposed more than once wout court or opposing

party permissiono A party may depose an organization or corporation orgcorp will

appoint an agent(s) to testify on its behalfo Motion to terminate or limit deposition must be made in a non-

argumentative non-suggestive amp concise mannero If counsel or witnessparty 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

13

R 28 30 31 amp 32

o Atty writes down questions sends them to a ct reporter at the deposition who asks the question and records the witnessrsquo 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 amp 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 amp Inspection of Documents amp Things- Document = any medium of information (email letter photo video

etc)o No limit to of docs requestedo Can only hold back doc if going to use it for perjury

- Procedureo Party send a R 34 request

Request must describe documents sought with reasonable particularity

Permissible to describe the requested documents by categoryo Non-party send a subpoena issued under R 45a1C

- The burden of productiono Party may comply with production by producing relevant

documents as kept in the normal course of businesso Problems with letting the requesting party weed through files

Provides the other party access to irrevelant info Access to files waives the compelled partyrsquos objection

to production of materials that are protected from discovery

Doesnrsquot save time ndash will have to go through files anyway to see what files the other side has seen

- For Physical Mental Exams must show lsquogood causersquo (R 35)o Only can examine people who are parties or who are in the custody of

parties o These custody3rd party ndash 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 doesnrsquot 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 amp

objections Punishes parties for unjustified requests amp refusals Suggest that atty fees will be an approp sanction for most

violations

14

o R 37 Series of devices designed to elicit info or respond to partiesrsquo refusal to supply info Some sanctions are available on the occurrence of

misbehavior (R 37 dampg) 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 amp

29) E-Discovery

D Discovery in an Adversarial System Privilege amp 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 Must be documents or tangible things Prepared in anticipation of a trial litigation Prepared by or for another party or by or for that partyrsquos

representativeo 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 wonrsquot if It reveals mental impressions conclusion opinions or legal

theories of counselo 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 amp testify- 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 amp the expertise is relevanto Experts range from regular professionals to exotic professionals

15

Work Product Doctrine

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 amp

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 amp party canrsquot 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 amp Creatively Bad can demonstrate one-sidedness greed amp 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 para might settle for less

- Settlements control risko Getting something is better than nothingo Trials are unpredictable amp all-or-nothingo Trials are expensive (donrsquot know how long either)

- Factors for companies to consider settlingo Investors bad press

- Contracting to Dismisso Release simplest form of settlement is a K where para 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 decisionso Parties can settle via phone meeting or exchanging docso No ct approval needed for settlement

Exceptions minors class actions multi cases (R 23 e3)

16

Prefiling agreement not to sue

Voluntary dismissal amp agreement not to sue

Dismissal with prejudice

o Settlements are binding Ks that can be attacked on the grounds of fraud duress mistake incapacity unconscionability etc

o Written settlements should contain all basic info amp must be signed and dated

o Prefiling agreements not to sue eliminate all litigation costs and carefully define scope of threatened law suit

o If para sues anyway should use R 8c affirmative defense being the arbitration amp award or should move for summary judgment (R 56b)

o If breaks settlement terms para should sue for breach of Ko Dismissal of Actions

Voluntary Dismissal para voluntarily dismisses claim before answer is filed Valuable to donrsquot need to acceptdeny para claims Valuable to para 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 para 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 donrsquot need to start all over again in back of line (like a breach of K for broken settlement)

A consent decree invokes the courtrsquos jurisdiction to enforce the settlement

Aka stipulated judgmento 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 risko 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- 3rd Party Participation in Settlement Facilitation Encouragement amp Coercion

o Mediation = assisted negotiation = for when settlements fail Goal agreement Positional mediation as what it will take to settle the case Interest mediation discovering monetary amp 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 amp 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 pointless

17

R 56

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 factso If there is an issue of material fact it might change the outcome of

the caseo If there is a genuine dispute of the issue a reasonable jury 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 hearsayo Canrsquot just offer a conclusion need supporting factso A moving party always bears the initial responsibility for informing

district ct of the basis for the motiono No requirement that moving party is required to support its motion

with affidavits etc to negate the non-moving partyrsquos claimo 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 canrsquot reply that evidence is forthcoming If so then use R 56f

If adverse (non-moving) party wins SJ doesnrsquot 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 partyrsquo favor considering which party has the burden

- To wino Moving Party with burden introduce evidence to make their claimo Moving Party wno burden claim that non-moving party doesnrsquot 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

Ctrsquos 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 partyo Yes SJ is not appropriateo No SJ is appropriate

18

Ways to knock out a casePre-answer motion amp SJ

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 donrsquot 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 judgeso 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 judgersquos bias bc a judge still rules on good amount of decisions during the trial

Procedure for recusing judge 28 USC sect 455- Where judge has

o Served as an atty in the matter in controversyo Served in gov employment amp expressed an opinion concerning the

merits of the particular case controversyo 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 amp 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)o Jury trial = R 38o Does not indicate scope of the righto 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 juryApplying the Historical Test to New Claims

- 2 part testo Compare action to actions that were available in 1791o Determine the remedy sought

Only ask 2nd question is there is no appropriate analogy Exceptions Jury wonrsquot hear cases about damages if

Damages are restitutionary

19

Monetary award intertwines with injunction

- Can waive right to jury trial by failing to raise righto 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 para seeks equitable remedies amp counter-claims are money both are entitled to a jury trial

- If para 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 adjudicationo 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 juryrsquos boundaries in their role as

decision makero Law of evidenceo Power instruction juryo Directed verdicto JNOVo 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

K case

para seeks $$ damages Jury

para seeks specific perf Judge

para seeks reformation Judge

para seeks rescindment Judgee

Nuisance property case

para seeks damages Jury

para seeks injunction Judge

Stolen ring

para seeks to recover value (trover) Jury

para seeks to recover the ring

(replevlin)

Jury

Wrongful occupation of property

para seeks damages Jury

para seeks to eject Jury

20

Need some proof of what happened evidence canrsquot 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 amp 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 amp the system of jury trial

dictate the particular forms by which the system tries to assure rationality and its limits

Juries Democracy amp 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 amp 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 lsquopreponderance of evidencersquo = 51o Only matters in a perfectly balanced case which party carries the

burden of persuasion (only when it is 5050 that burden matters)

- Burden of Productiono Basic idea party who bears the burden of production has to produce

each evidence in support of each elemento Party who has the burden of persuasion also have the burden of

productiono para has the burden for the elements of the claim and has the burden

for the affirmative defenseo Requires party to produce find amp present evidenceo Summary Judgment relies on burden of production

Need sufficient evidence to allow a rational trier of fact to find in her favor

o Meeting onersquos burden does not mean that the trier of fact has to rule in your favor only that they are able to

Controlling Juries Before the Verdict- Directed Verdict

o Judgment as a matter of law before vedicto Purpose to take the case away from the jury on the ground that the

evidence is insufficient to support a verdict for the para (R 50a)o First opportunity after paralsquos case Last opportunity before the Jury

Instructions

21

Can move for a directed verdict multiple timeso No 7th A violation

For 7th A need a casecontroversy (legitimate dispute) Constitutional role of fact-finder is not required

o Ct will only look at all evidence from both sides amp ask ldquois there a substantial conflict in evidence

Need a substantial amnt not a scintillao 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 amp substance issues

Can motion multiple timeso 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 wonrsquot reach verdicts

that canrsquot be sustained by the evidence Screen jury to elimination jurors who will likely

reach irrational verdicts (bc of sympathies or dimness)

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 juryo Prerequisite a motion for a directed verdict

Donrsquot move for a DV canrsquot move for a JNOV Purpose of Prerequisite

Preserves sufficiency of the evidence as a question of law

Calls the court amp partyrsquos 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 scripto Judges should not let cases go to jury without a sufficient amount of

evidenceo JNOVrsquos almost always result in an appeal

Only motion denied that can be immediately appealedo Little authority for the standard for reviewing a trial judgersquos JNOVo Credibility issues are always for the jury (Judge shouldnrsquot be 13th

juror)- New Trial

o Granting JNOV = wrong winnero New trial = a start-over not a declaration of who should have wono 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

22

Judgment as a Matter of Law- Directed verdict (R 50a)

before jury- JNOV (R 50b) after jury

Verdict Problem Bad instructions given or jury didnrsquot understand

instructions ldquoJNOV literdquo Judge doesnrsquot want to direct a verdict so will try it

again Judge will rule on new trial amp JNOV motion

together (R 59d)o No interlocutory appeals for new trials in federal ct

VIII Respect for Judgments

- Procedural rules serve 2 purposeso Air disputes completely and reach and accurate amp just outcomeo Seek to end disputes even if outcome is less than desirable

- Finality statutes of limitation claim preclusion amp issue preclusion- Claim preclusion forbids a party from relitigating a claim that should have

been raised in former litigationo Claim preclusion = ldquores judicatardquoo Goals efficiency finality consistent results

- Issue preclusion when some issue involved in that claim has been previously litigatedo Issue preclusion = ldquocollateral estoppelrdquo

A Claim Preclusion Res judicata Same claim amp same parties 4 prerequisites needed

- Claim in 2nd action must be same claim that was litigated in the 1st action- Parties must be the same- Judgment rendered in 1st action must be final- Judgment must have been rendered on the merits of the case

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 para litigated a subset of all available

disputes between the parties in the 1st suit

- Restatement Test of what is a claimo When a valid and final judgment rendered in an action extinguishes a

paralsquos claim the claim extinguished all right of the para to remedies against the with respect 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 ldquotransactionrdquo and what groupings constitute a ldquoseriesrdquo 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 partiesrsquo expectations or business understanding or usage

Between the Same Parties- Claim preclusion only works between those who were the parties to both the

1st amp 2nd lawsuits

23

Note claims that could not be joined will not be barred by claim preclusion

Interrelated by same transaction or series of transactions

2 Constitutional Prerequisites 1- Notice 2- Actual parties must know that they are repping the interests of others

JNOV = R 50New trial = R 59

- Generally separate individuals are regarded as having separate claims- Several exceptions

o Privity an ongoing or contractual relationship (most important)o Substantive Legal relationship ex successive ownership of land with

easements 1 party sues to enforce the easement against the 2nd party amp wins 2nd party sells to 3rd party ndash 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 amp Claim Preclusiono Was the issue decided in the proper adjudication identical with the

issue presented in the action in questiono Was there a final judgmento Was the party against whom the plea is asserted a party or a person

in privity with a party in the prior adjudicationo Was the issue in the 1st case competently fully amp 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 ldquoOn the Meritsrdquo- Not all judgments receive preclusive effect- Cts may attach preclusive effect bc

o Ct actually considered and ruled on the merits of the caseo 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 effecto Full jury trial = Yes preclusive effecto Directed verdict = Yes preclusive effecto Summary Judgment = Yes preclusive effecto 12b6 = depends

Sup Ct has ruled that a dismissal 12b6 ruling is a judgment on the merits

But states have different rules amp 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 amp Compulsory Counterclaims

- Failure to bring a compulsory counterclaim precludes from bringing it againo 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 amp essential to prior judgment- Need an issue of fact or law that was actually litigated and determined by a

valid amp final judgment and the determination is essential to the judgment

24

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 amp 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 litigationo Evidence to the record = trial transcript jury instructions

Between Which Parties- The ldquoVictimrdquo of Preclusion

o Old common law mutuality was a requirement for both claim amp 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 amp 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 wifersquos victory

New rule husband can take advantage of issue preclusion to prevent RR re-litigating case bc RR already had a full amp fair opportunity to litigate

Victim bc if RR won in 1st case canrsquot take advantage bc husband was not a party in the 1st case

- The Precludero General rule where a para 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 para uses the prior determination like a sword

para tries to hold to prior outcome (where litigated amp lost) Good for paras can wait amp 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 para already lost suing another on same issue

o Remember 2 goals of issue preclusion Consistency of verdicts Efficiency

25

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

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 amp no response effect of a denial General denial careful Only when you really deny everything

Ineffective Have to admit the truth in complaint amp answer

Except if you donrsquot know deny

- Affirmative Defenseso Line between factual denial amp affirmative defense is blurry

Affirm Best but then has the burdeno 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 amp facts may change as the

suit develops particularly from discovery- Common for parties to learn that their initial understanding of their

claimsdefenses were wrong or incomplete- Rule 15 governs between 2 goals justice amp prejudice

o Justice = easy amendment so that pleadings can reflect partiesrsquo changed view of the case

o Prejudice = Canrsquot burden the other side will be burdened if storyargument continues to shift

- Two typeso 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

lsquoclosesrsquo 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 amp no time limit either just have to amend before an answer to the counterclaim is filed

o Amendments with leave of court (judgersquos permission consent of other party) R 15 a Most common type of amendment

10

R 15Leave to amend shall be freely

given when justice so requires

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 partiesrsquo 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 partiesrsquo 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

As trial approaches ct becomes less flexible Tension btwn 2 goals (justice amp prejudice) increases

R 15 makes no distinction btwn factual amp legal changes to the pleadings

- Statute of Limitations amp R 15 Not a defense to amendmentso As long as para 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 Canrsquot add an unrelated claim ndash must arise out of the same transaction

IV Discovery

A Modern Discovery Discovery = interplay of relevance privilege amp 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 claimdefense) Discovery Rules establish 3 stages

- Requirement of mandatory disclosure- Provision for further discovery (limited to claims amp defenses)- Provision for broader discovery if party demonstrates lsquogood causersquo 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 providepermit 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 amp Limits Relevance amp Privilege

11

- To be discoverable info must be relevant amp not privileged- Info may be discoverable even though it wonrsquot canrsquot be admissible as

evidence at trial Relevance

- Relevant links discovery ndash law of pleading ndash law of evidence ndash common sense- Still not entitled to all discovery that is relevant- Relevant reasons for event occurring not potential other reasons party

could have used- 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 ndash cliento doctor ndash patiento therapist ndash patiento religious minister ndash 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 amp 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 Computations of damages claimed (make copies allow for

inspection of docs available) or insurance agreements Must be made in writing signed amp served If donrsquot disclose a witnessinfo used R 37c1 will likely bar the

party from using it (unless it is harmless) Duty to supplement this info when more info becomes

available R 26 e1o 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 amp counsel discuss the way discovery amp other pre-trial

matters should proceedo Parties cannot use interrogs deps or any other means before basic

info is exchangedo Exempt categories from initial disclosure (see R 26a1E)

12

ExampleMay 1 Initial mtgMay 14 Last day to exchange basic infoMay 21 Scheduling ConfAll with duty to supplement

Action for review on an administrative record Petition for habeas corpus other proceeding to challenge a

criminal conviction sentence An action brought wout 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 Addtrsquol 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 amp discretionary limits imposed by the judge

Depositions- Deposition = a witnessrsquo sworn out-of-court testimony that is reduced to

writing for later use in court or for discovery purposes- Oral deposition

o Occur in an atty office with all attys present the witness amp court reporter or recording device

o If deposing a non-party send a subpoena to ensure presenceo Counsel doesnrsquot cross-examine unless need clarificationo Deposition may be admitted at trial if witness canrsquot testify in persono Total number of depositions by one side may not exceed 10o No deposition can exceed 7 hrs in one dayo No one can get deposed more than once wout court or opposing

party permissiono A party may depose an organization or corporation orgcorp will

appoint an agent(s) to testify on its behalfo Motion to terminate or limit deposition must be made in a non-

argumentative non-suggestive amp concise mannero If counsel or witnessparty 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

13

R 28 30 31 amp 32

o Atty writes down questions sends them to a ct reporter at the deposition who asks the question and records the witnessrsquo 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 amp 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 amp Inspection of Documents amp Things- Document = any medium of information (email letter photo video

etc)o No limit to of docs requestedo Can only hold back doc if going to use it for perjury

- Procedureo Party send a R 34 request

Request must describe documents sought with reasonable particularity

Permissible to describe the requested documents by categoryo Non-party send a subpoena issued under R 45a1C

- The burden of productiono Party may comply with production by producing relevant

documents as kept in the normal course of businesso Problems with letting the requesting party weed through files

Provides the other party access to irrevelant info Access to files waives the compelled partyrsquos objection

to production of materials that are protected from discovery

Doesnrsquot save time ndash will have to go through files anyway to see what files the other side has seen

- For Physical Mental Exams must show lsquogood causersquo (R 35)o Only can examine people who are parties or who are in the custody of

parties o These custody3rd party ndash 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 doesnrsquot 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 amp

objections Punishes parties for unjustified requests amp refusals Suggest that atty fees will be an approp sanction for most

violations

14

o R 37 Series of devices designed to elicit info or respond to partiesrsquo refusal to supply info Some sanctions are available on the occurrence of

misbehavior (R 37 dampg) 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 amp

29) E-Discovery

D Discovery in an Adversarial System Privilege amp 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 Must be documents or tangible things Prepared in anticipation of a trial litigation Prepared by or for another party or by or for that partyrsquos

representativeo 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 wonrsquot if It reveals mental impressions conclusion opinions or legal

theories of counselo 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 amp testify- 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 amp the expertise is relevanto Experts range from regular professionals to exotic professionals

15

Work Product Doctrine

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 amp

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 amp party canrsquot 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 amp Creatively Bad can demonstrate one-sidedness greed amp 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 para might settle for less

- Settlements control risko Getting something is better than nothingo Trials are unpredictable amp all-or-nothingo Trials are expensive (donrsquot know how long either)

- Factors for companies to consider settlingo Investors bad press

- Contracting to Dismisso Release simplest form of settlement is a K where para 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 decisionso Parties can settle via phone meeting or exchanging docso No ct approval needed for settlement

Exceptions minors class actions multi cases (R 23 e3)

16

Prefiling agreement not to sue

Voluntary dismissal amp agreement not to sue

Dismissal with prejudice

o Settlements are binding Ks that can be attacked on the grounds of fraud duress mistake incapacity unconscionability etc

o Written settlements should contain all basic info amp must be signed and dated

o Prefiling agreements not to sue eliminate all litigation costs and carefully define scope of threatened law suit

o If para sues anyway should use R 8c affirmative defense being the arbitration amp award or should move for summary judgment (R 56b)

o If breaks settlement terms para should sue for breach of Ko Dismissal of Actions

Voluntary Dismissal para voluntarily dismisses claim before answer is filed Valuable to donrsquot need to acceptdeny para claims Valuable to para 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 para 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 donrsquot need to start all over again in back of line (like a breach of K for broken settlement)

A consent decree invokes the courtrsquos jurisdiction to enforce the settlement

Aka stipulated judgmento 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 risko 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- 3rd Party Participation in Settlement Facilitation Encouragement amp Coercion

o Mediation = assisted negotiation = for when settlements fail Goal agreement Positional mediation as what it will take to settle the case Interest mediation discovering monetary amp 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 amp 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 pointless

17

R 56

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 factso If there is an issue of material fact it might change the outcome of

the caseo If there is a genuine dispute of the issue a reasonable jury 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 hearsayo Canrsquot just offer a conclusion need supporting factso A moving party always bears the initial responsibility for informing

district ct of the basis for the motiono No requirement that moving party is required to support its motion

with affidavits etc to negate the non-moving partyrsquos claimo 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 canrsquot reply that evidence is forthcoming If so then use R 56f

If adverse (non-moving) party wins SJ doesnrsquot 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 partyrsquo favor considering which party has the burden

- To wino Moving Party with burden introduce evidence to make their claimo Moving Party wno burden claim that non-moving party doesnrsquot 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

Ctrsquos 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 partyo Yes SJ is not appropriateo No SJ is appropriate

18

Ways to knock out a casePre-answer motion amp SJ

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 donrsquot 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 judgeso 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 judgersquos bias bc a judge still rules on good amount of decisions during the trial

Procedure for recusing judge 28 USC sect 455- Where judge has

o Served as an atty in the matter in controversyo Served in gov employment amp expressed an opinion concerning the

merits of the particular case controversyo 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 amp 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)o Jury trial = R 38o Does not indicate scope of the righto 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 juryApplying the Historical Test to New Claims

- 2 part testo Compare action to actions that were available in 1791o Determine the remedy sought

Only ask 2nd question is there is no appropriate analogy Exceptions Jury wonrsquot hear cases about damages if

Damages are restitutionary

19

Monetary award intertwines with injunction

- Can waive right to jury trial by failing to raise righto 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 para seeks equitable remedies amp counter-claims are money both are entitled to a jury trial

- If para 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 adjudicationo 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 juryrsquos boundaries in their role as

decision makero Law of evidenceo Power instruction juryo Directed verdicto JNOVo 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

K case

para seeks $$ damages Jury

para seeks specific perf Judge

para seeks reformation Judge

para seeks rescindment Judgee

Nuisance property case

para seeks damages Jury

para seeks injunction Judge

Stolen ring

para seeks to recover value (trover) Jury

para seeks to recover the ring

(replevlin)

Jury

Wrongful occupation of property

para seeks damages Jury

para seeks to eject Jury

20

Need some proof of what happened evidence canrsquot 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 amp 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 amp the system of jury trial

dictate the particular forms by which the system tries to assure rationality and its limits

Juries Democracy amp 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 amp 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 lsquopreponderance of evidencersquo = 51o Only matters in a perfectly balanced case which party carries the

burden of persuasion (only when it is 5050 that burden matters)

- Burden of Productiono Basic idea party who bears the burden of production has to produce

each evidence in support of each elemento Party who has the burden of persuasion also have the burden of

productiono para has the burden for the elements of the claim and has the burden

for the affirmative defenseo Requires party to produce find amp present evidenceo Summary Judgment relies on burden of production

Need sufficient evidence to allow a rational trier of fact to find in her favor

o Meeting onersquos burden does not mean that the trier of fact has to rule in your favor only that they are able to

Controlling Juries Before the Verdict- Directed Verdict

o Judgment as a matter of law before vedicto Purpose to take the case away from the jury on the ground that the

evidence is insufficient to support a verdict for the para (R 50a)o First opportunity after paralsquos case Last opportunity before the Jury

Instructions

21

Can move for a directed verdict multiple timeso No 7th A violation

For 7th A need a casecontroversy (legitimate dispute) Constitutional role of fact-finder is not required

o Ct will only look at all evidence from both sides amp ask ldquois there a substantial conflict in evidence

Need a substantial amnt not a scintillao 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 amp substance issues

Can motion multiple timeso 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 wonrsquot reach verdicts

that canrsquot be sustained by the evidence Screen jury to elimination jurors who will likely

reach irrational verdicts (bc of sympathies or dimness)

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 juryo Prerequisite a motion for a directed verdict

Donrsquot move for a DV canrsquot move for a JNOV Purpose of Prerequisite

Preserves sufficiency of the evidence as a question of law

Calls the court amp partyrsquos 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 scripto Judges should not let cases go to jury without a sufficient amount of

evidenceo JNOVrsquos almost always result in an appeal

Only motion denied that can be immediately appealedo Little authority for the standard for reviewing a trial judgersquos JNOVo Credibility issues are always for the jury (Judge shouldnrsquot be 13th

juror)- New Trial

o Granting JNOV = wrong winnero New trial = a start-over not a declaration of who should have wono 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

22

Judgment as a Matter of Law- Directed verdict (R 50a)

before jury- JNOV (R 50b) after jury

Verdict Problem Bad instructions given or jury didnrsquot understand

instructions ldquoJNOV literdquo Judge doesnrsquot want to direct a verdict so will try it

again Judge will rule on new trial amp JNOV motion

together (R 59d)o No interlocutory appeals for new trials in federal ct

VIII Respect for Judgments

- Procedural rules serve 2 purposeso Air disputes completely and reach and accurate amp just outcomeo Seek to end disputes even if outcome is less than desirable

- Finality statutes of limitation claim preclusion amp issue preclusion- Claim preclusion forbids a party from relitigating a claim that should have

been raised in former litigationo Claim preclusion = ldquores judicatardquoo Goals efficiency finality consistent results

- Issue preclusion when some issue involved in that claim has been previously litigatedo Issue preclusion = ldquocollateral estoppelrdquo

A Claim Preclusion Res judicata Same claim amp same parties 4 prerequisites needed

- Claim in 2nd action must be same claim that was litigated in the 1st action- Parties must be the same- Judgment rendered in 1st action must be final- Judgment must have been rendered on the merits of the case

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 para litigated a subset of all available

disputes between the parties in the 1st suit

- Restatement Test of what is a claimo When a valid and final judgment rendered in an action extinguishes a

paralsquos claim the claim extinguished all right of the para to remedies against the with respect 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 ldquotransactionrdquo and what groupings constitute a ldquoseriesrdquo 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 partiesrsquo expectations or business understanding or usage

Between the Same Parties- Claim preclusion only works between those who were the parties to both the

1st amp 2nd lawsuits

23

Note claims that could not be joined will not be barred by claim preclusion

Interrelated by same transaction or series of transactions

2 Constitutional Prerequisites 1- Notice 2- Actual parties must know that they are repping the interests of others

JNOV = R 50New trial = R 59

- Generally separate individuals are regarded as having separate claims- Several exceptions

o Privity an ongoing or contractual relationship (most important)o Substantive Legal relationship ex successive ownership of land with

easements 1 party sues to enforce the easement against the 2nd party amp wins 2nd party sells to 3rd party ndash 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 amp Claim Preclusiono Was the issue decided in the proper adjudication identical with the

issue presented in the action in questiono Was there a final judgmento Was the party against whom the plea is asserted a party or a person

in privity with a party in the prior adjudicationo Was the issue in the 1st case competently fully amp 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 ldquoOn the Meritsrdquo- Not all judgments receive preclusive effect- Cts may attach preclusive effect bc

o Ct actually considered and ruled on the merits of the caseo 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 effecto Full jury trial = Yes preclusive effecto Directed verdict = Yes preclusive effecto Summary Judgment = Yes preclusive effecto 12b6 = depends

Sup Ct has ruled that a dismissal 12b6 ruling is a judgment on the merits

But states have different rules amp 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 amp Compulsory Counterclaims

- Failure to bring a compulsory counterclaim precludes from bringing it againo 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 amp essential to prior judgment- Need an issue of fact or law that was actually litigated and determined by a

valid amp final judgment and the determination is essential to the judgment

24

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 amp 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 litigationo Evidence to the record = trial transcript jury instructions

Between Which Parties- The ldquoVictimrdquo of Preclusion

o Old common law mutuality was a requirement for both claim amp 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 amp 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 wifersquos victory

New rule husband can take advantage of issue preclusion to prevent RR re-litigating case bc RR already had a full amp fair opportunity to litigate

Victim bc if RR won in 1st case canrsquot take advantage bc husband was not a party in the 1st case

- The Precludero General rule where a para 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 para uses the prior determination like a sword

para tries to hold to prior outcome (where litigated amp lost) Good for paras can wait amp 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 para already lost suing another on same issue

o Remember 2 goals of issue preclusion Consistency of verdicts Efficiency

25

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

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 partiesrsquo 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 partiesrsquo 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

As trial approaches ct becomes less flexible Tension btwn 2 goals (justice amp prejudice) increases

R 15 makes no distinction btwn factual amp legal changes to the pleadings

- Statute of Limitations amp R 15 Not a defense to amendmentso As long as para 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 Canrsquot add an unrelated claim ndash must arise out of the same transaction

IV Discovery

A Modern Discovery Discovery = interplay of relevance privilege amp 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 claimdefense) Discovery Rules establish 3 stages

- Requirement of mandatory disclosure- Provision for further discovery (limited to claims amp defenses)- Provision for broader discovery if party demonstrates lsquogood causersquo 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 providepermit 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 amp Limits Relevance amp Privilege

11

- To be discoverable info must be relevant amp not privileged- Info may be discoverable even though it wonrsquot canrsquot be admissible as

evidence at trial Relevance

- Relevant links discovery ndash law of pleading ndash law of evidence ndash common sense- Still not entitled to all discovery that is relevant- Relevant reasons for event occurring not potential other reasons party

could have used- 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 ndash cliento doctor ndash patiento therapist ndash patiento religious minister ndash 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 amp 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 Computations of damages claimed (make copies allow for

inspection of docs available) or insurance agreements Must be made in writing signed amp served If donrsquot disclose a witnessinfo used R 37c1 will likely bar the

party from using it (unless it is harmless) Duty to supplement this info when more info becomes

available R 26 e1o 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 amp counsel discuss the way discovery amp other pre-trial

matters should proceedo Parties cannot use interrogs deps or any other means before basic

info is exchangedo Exempt categories from initial disclosure (see R 26a1E)

12

ExampleMay 1 Initial mtgMay 14 Last day to exchange basic infoMay 21 Scheduling ConfAll with duty to supplement

Action for review on an administrative record Petition for habeas corpus other proceeding to challenge a

criminal conviction sentence An action brought wout 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 Addtrsquol 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 amp discretionary limits imposed by the judge

Depositions- Deposition = a witnessrsquo sworn out-of-court testimony that is reduced to

writing for later use in court or for discovery purposes- Oral deposition

o Occur in an atty office with all attys present the witness amp court reporter or recording device

o If deposing a non-party send a subpoena to ensure presenceo Counsel doesnrsquot cross-examine unless need clarificationo Deposition may be admitted at trial if witness canrsquot testify in persono Total number of depositions by one side may not exceed 10o No deposition can exceed 7 hrs in one dayo No one can get deposed more than once wout court or opposing

party permissiono A party may depose an organization or corporation orgcorp will

appoint an agent(s) to testify on its behalfo Motion to terminate or limit deposition must be made in a non-

argumentative non-suggestive amp concise mannero If counsel or witnessparty 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

13

R 28 30 31 amp 32

o Atty writes down questions sends them to a ct reporter at the deposition who asks the question and records the witnessrsquo 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 amp 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 amp Inspection of Documents amp Things- Document = any medium of information (email letter photo video

etc)o No limit to of docs requestedo Can only hold back doc if going to use it for perjury

- Procedureo Party send a R 34 request

Request must describe documents sought with reasonable particularity

Permissible to describe the requested documents by categoryo Non-party send a subpoena issued under R 45a1C

- The burden of productiono Party may comply with production by producing relevant

documents as kept in the normal course of businesso Problems with letting the requesting party weed through files

Provides the other party access to irrevelant info Access to files waives the compelled partyrsquos objection

to production of materials that are protected from discovery

Doesnrsquot save time ndash will have to go through files anyway to see what files the other side has seen

- For Physical Mental Exams must show lsquogood causersquo (R 35)o Only can examine people who are parties or who are in the custody of

parties o These custody3rd party ndash 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 doesnrsquot 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 amp

objections Punishes parties for unjustified requests amp refusals Suggest that atty fees will be an approp sanction for most

violations

14

o R 37 Series of devices designed to elicit info or respond to partiesrsquo refusal to supply info Some sanctions are available on the occurrence of

misbehavior (R 37 dampg) 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 amp

29) E-Discovery

D Discovery in an Adversarial System Privilege amp 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 Must be documents or tangible things Prepared in anticipation of a trial litigation Prepared by or for another party or by or for that partyrsquos

representativeo 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 wonrsquot if It reveals mental impressions conclusion opinions or legal

theories of counselo 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 amp testify- 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 amp the expertise is relevanto Experts range from regular professionals to exotic professionals

15

Work Product Doctrine

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 amp

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 amp party canrsquot 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 amp Creatively Bad can demonstrate one-sidedness greed amp 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 para might settle for less

- Settlements control risko Getting something is better than nothingo Trials are unpredictable amp all-or-nothingo Trials are expensive (donrsquot know how long either)

- Factors for companies to consider settlingo Investors bad press

- Contracting to Dismisso Release simplest form of settlement is a K where para 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 decisionso Parties can settle via phone meeting or exchanging docso No ct approval needed for settlement

Exceptions minors class actions multi cases (R 23 e3)

16

Prefiling agreement not to sue

Voluntary dismissal amp agreement not to sue

Dismissal with prejudice

o Settlements are binding Ks that can be attacked on the grounds of fraud duress mistake incapacity unconscionability etc

o Written settlements should contain all basic info amp must be signed and dated

o Prefiling agreements not to sue eliminate all litigation costs and carefully define scope of threatened law suit

o If para sues anyway should use R 8c affirmative defense being the arbitration amp award or should move for summary judgment (R 56b)

o If breaks settlement terms para should sue for breach of Ko Dismissal of Actions

Voluntary Dismissal para voluntarily dismisses claim before answer is filed Valuable to donrsquot need to acceptdeny para claims Valuable to para 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 para 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 donrsquot need to start all over again in back of line (like a breach of K for broken settlement)

A consent decree invokes the courtrsquos jurisdiction to enforce the settlement

Aka stipulated judgmento 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 risko 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- 3rd Party Participation in Settlement Facilitation Encouragement amp Coercion

o Mediation = assisted negotiation = for when settlements fail Goal agreement Positional mediation as what it will take to settle the case Interest mediation discovering monetary amp 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 amp 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 pointless

17

R 56

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 factso If there is an issue of material fact it might change the outcome of

the caseo If there is a genuine dispute of the issue a reasonable jury 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 hearsayo Canrsquot just offer a conclusion need supporting factso A moving party always bears the initial responsibility for informing

district ct of the basis for the motiono No requirement that moving party is required to support its motion

with affidavits etc to negate the non-moving partyrsquos claimo 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 canrsquot reply that evidence is forthcoming If so then use R 56f

If adverse (non-moving) party wins SJ doesnrsquot 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 partyrsquo favor considering which party has the burden

- To wino Moving Party with burden introduce evidence to make their claimo Moving Party wno burden claim that non-moving party doesnrsquot 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

Ctrsquos 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 partyo Yes SJ is not appropriateo No SJ is appropriate

18

Ways to knock out a casePre-answer motion amp SJ

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 donrsquot 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 judgeso 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 judgersquos bias bc a judge still rules on good amount of decisions during the trial

Procedure for recusing judge 28 USC sect 455- Where judge has

o Served as an atty in the matter in controversyo Served in gov employment amp expressed an opinion concerning the

merits of the particular case controversyo 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 amp 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)o Jury trial = R 38o Does not indicate scope of the righto 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 juryApplying the Historical Test to New Claims

- 2 part testo Compare action to actions that were available in 1791o Determine the remedy sought

Only ask 2nd question is there is no appropriate analogy Exceptions Jury wonrsquot hear cases about damages if

Damages are restitutionary

19

Monetary award intertwines with injunction

- Can waive right to jury trial by failing to raise righto 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 para seeks equitable remedies amp counter-claims are money both are entitled to a jury trial

- If para 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 adjudicationo 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 juryrsquos boundaries in their role as

decision makero Law of evidenceo Power instruction juryo Directed verdicto JNOVo 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

K case

para seeks $$ damages Jury

para seeks specific perf Judge

para seeks reformation Judge

para seeks rescindment Judgee

Nuisance property case

para seeks damages Jury

para seeks injunction Judge

Stolen ring

para seeks to recover value (trover) Jury

para seeks to recover the ring

(replevlin)

Jury

Wrongful occupation of property

para seeks damages Jury

para seeks to eject Jury

20

Need some proof of what happened evidence canrsquot 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 amp 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 amp the system of jury trial

dictate the particular forms by which the system tries to assure rationality and its limits

Juries Democracy amp 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 amp 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 lsquopreponderance of evidencersquo = 51o Only matters in a perfectly balanced case which party carries the

burden of persuasion (only when it is 5050 that burden matters)

- Burden of Productiono Basic idea party who bears the burden of production has to produce

each evidence in support of each elemento Party who has the burden of persuasion also have the burden of

productiono para has the burden for the elements of the claim and has the burden

for the affirmative defenseo Requires party to produce find amp present evidenceo Summary Judgment relies on burden of production

Need sufficient evidence to allow a rational trier of fact to find in her favor

o Meeting onersquos burden does not mean that the trier of fact has to rule in your favor only that they are able to

Controlling Juries Before the Verdict- Directed Verdict

o Judgment as a matter of law before vedicto Purpose to take the case away from the jury on the ground that the

evidence is insufficient to support a verdict for the para (R 50a)o First opportunity after paralsquos case Last opportunity before the Jury

Instructions

21

Can move for a directed verdict multiple timeso No 7th A violation

For 7th A need a casecontroversy (legitimate dispute) Constitutional role of fact-finder is not required

o Ct will only look at all evidence from both sides amp ask ldquois there a substantial conflict in evidence

Need a substantial amnt not a scintillao 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 amp substance issues

Can motion multiple timeso 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 wonrsquot reach verdicts

that canrsquot be sustained by the evidence Screen jury to elimination jurors who will likely

reach irrational verdicts (bc of sympathies or dimness)

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 juryo Prerequisite a motion for a directed verdict

Donrsquot move for a DV canrsquot move for a JNOV Purpose of Prerequisite

Preserves sufficiency of the evidence as a question of law

Calls the court amp partyrsquos 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 scripto Judges should not let cases go to jury without a sufficient amount of

evidenceo JNOVrsquos almost always result in an appeal

Only motion denied that can be immediately appealedo Little authority for the standard for reviewing a trial judgersquos JNOVo Credibility issues are always for the jury (Judge shouldnrsquot be 13th

juror)- New Trial

o Granting JNOV = wrong winnero New trial = a start-over not a declaration of who should have wono 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

22

Judgment as a Matter of Law- Directed verdict (R 50a)

before jury- JNOV (R 50b) after jury

Verdict Problem Bad instructions given or jury didnrsquot understand

instructions ldquoJNOV literdquo Judge doesnrsquot want to direct a verdict so will try it

again Judge will rule on new trial amp JNOV motion

together (R 59d)o No interlocutory appeals for new trials in federal ct

VIII Respect for Judgments

- Procedural rules serve 2 purposeso Air disputes completely and reach and accurate amp just outcomeo Seek to end disputes even if outcome is less than desirable

- Finality statutes of limitation claim preclusion amp issue preclusion- Claim preclusion forbids a party from relitigating a claim that should have

been raised in former litigationo Claim preclusion = ldquores judicatardquoo Goals efficiency finality consistent results

- Issue preclusion when some issue involved in that claim has been previously litigatedo Issue preclusion = ldquocollateral estoppelrdquo

A Claim Preclusion Res judicata Same claim amp same parties 4 prerequisites needed

- Claim in 2nd action must be same claim that was litigated in the 1st action- Parties must be the same- Judgment rendered in 1st action must be final- Judgment must have been rendered on the merits of the case

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 para litigated a subset of all available

disputes between the parties in the 1st suit

- Restatement Test of what is a claimo When a valid and final judgment rendered in an action extinguishes a

paralsquos claim the claim extinguished all right of the para to remedies against the with respect 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 ldquotransactionrdquo and what groupings constitute a ldquoseriesrdquo 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 partiesrsquo expectations or business understanding or usage

Between the Same Parties- Claim preclusion only works between those who were the parties to both the

1st amp 2nd lawsuits

23

Note claims that could not be joined will not be barred by claim preclusion

Interrelated by same transaction or series of transactions

2 Constitutional Prerequisites 1- Notice 2- Actual parties must know that they are repping the interests of others

JNOV = R 50New trial = R 59

- Generally separate individuals are regarded as having separate claims- Several exceptions

o Privity an ongoing or contractual relationship (most important)o Substantive Legal relationship ex successive ownership of land with

easements 1 party sues to enforce the easement against the 2nd party amp wins 2nd party sells to 3rd party ndash 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 amp Claim Preclusiono Was the issue decided in the proper adjudication identical with the

issue presented in the action in questiono Was there a final judgmento Was the party against whom the plea is asserted a party or a person

in privity with a party in the prior adjudicationo Was the issue in the 1st case competently fully amp 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 ldquoOn the Meritsrdquo- Not all judgments receive preclusive effect- Cts may attach preclusive effect bc

o Ct actually considered and ruled on the merits of the caseo 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 effecto Full jury trial = Yes preclusive effecto Directed verdict = Yes preclusive effecto Summary Judgment = Yes preclusive effecto 12b6 = depends

Sup Ct has ruled that a dismissal 12b6 ruling is a judgment on the merits

But states have different rules amp 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 amp Compulsory Counterclaims

- Failure to bring a compulsory counterclaim precludes from bringing it againo 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 amp essential to prior judgment- Need an issue of fact or law that was actually litigated and determined by a

valid amp final judgment and the determination is essential to the judgment

24

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 amp 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 litigationo Evidence to the record = trial transcript jury instructions

Between Which Parties- The ldquoVictimrdquo of Preclusion

o Old common law mutuality was a requirement for both claim amp 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 amp 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 wifersquos victory

New rule husband can take advantage of issue preclusion to prevent RR re-litigating case bc RR already had a full amp fair opportunity to litigate

Victim bc if RR won in 1st case canrsquot take advantage bc husband was not a party in the 1st case

- The Precludero General rule where a para 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 para uses the prior determination like a sword

para tries to hold to prior outcome (where litigated amp lost) Good for paras can wait amp 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 para already lost suing another on same issue

o Remember 2 goals of issue preclusion Consistency of verdicts Efficiency

25

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

- To be discoverable info must be relevant amp not privileged- Info may be discoverable even though it wonrsquot canrsquot be admissible as

evidence at trial Relevance

- Relevant links discovery ndash law of pleading ndash law of evidence ndash common sense- Still not entitled to all discovery that is relevant- Relevant reasons for event occurring not potential other reasons party

could have used- 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 ndash cliento doctor ndash patiento therapist ndash patiento religious minister ndash 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 amp 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 Computations of damages claimed (make copies allow for

inspection of docs available) or insurance agreements Must be made in writing signed amp served If donrsquot disclose a witnessinfo used R 37c1 will likely bar the

party from using it (unless it is harmless) Duty to supplement this info when more info becomes

available R 26 e1o 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 amp counsel discuss the way discovery amp other pre-trial

matters should proceedo Parties cannot use interrogs deps or any other means before basic

info is exchangedo Exempt categories from initial disclosure (see R 26a1E)

12

ExampleMay 1 Initial mtgMay 14 Last day to exchange basic infoMay 21 Scheduling ConfAll with duty to supplement

Action for review on an administrative record Petition for habeas corpus other proceeding to challenge a

criminal conviction sentence An action brought wout 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 Addtrsquol 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 amp discretionary limits imposed by the judge

Depositions- Deposition = a witnessrsquo sworn out-of-court testimony that is reduced to

writing for later use in court or for discovery purposes- Oral deposition

o Occur in an atty office with all attys present the witness amp court reporter or recording device

o If deposing a non-party send a subpoena to ensure presenceo Counsel doesnrsquot cross-examine unless need clarificationo Deposition may be admitted at trial if witness canrsquot testify in persono Total number of depositions by one side may not exceed 10o No deposition can exceed 7 hrs in one dayo No one can get deposed more than once wout court or opposing

party permissiono A party may depose an organization or corporation orgcorp will

appoint an agent(s) to testify on its behalfo Motion to terminate or limit deposition must be made in a non-

argumentative non-suggestive amp concise mannero If counsel or witnessparty 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

13

R 28 30 31 amp 32

o Atty writes down questions sends them to a ct reporter at the deposition who asks the question and records the witnessrsquo 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 amp 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 amp Inspection of Documents amp Things- Document = any medium of information (email letter photo video

etc)o No limit to of docs requestedo Can only hold back doc if going to use it for perjury

- Procedureo Party send a R 34 request

Request must describe documents sought with reasonable particularity

Permissible to describe the requested documents by categoryo Non-party send a subpoena issued under R 45a1C

- The burden of productiono Party may comply with production by producing relevant

documents as kept in the normal course of businesso Problems with letting the requesting party weed through files

Provides the other party access to irrevelant info Access to files waives the compelled partyrsquos objection

to production of materials that are protected from discovery

Doesnrsquot save time ndash will have to go through files anyway to see what files the other side has seen

- For Physical Mental Exams must show lsquogood causersquo (R 35)o Only can examine people who are parties or who are in the custody of

parties o These custody3rd party ndash 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 doesnrsquot 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 amp

objections Punishes parties for unjustified requests amp refusals Suggest that atty fees will be an approp sanction for most

violations

14

o R 37 Series of devices designed to elicit info or respond to partiesrsquo refusal to supply info Some sanctions are available on the occurrence of

misbehavior (R 37 dampg) 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 amp

29) E-Discovery

D Discovery in an Adversarial System Privilege amp 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 Must be documents or tangible things Prepared in anticipation of a trial litigation Prepared by or for another party or by or for that partyrsquos

representativeo 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 wonrsquot if It reveals mental impressions conclusion opinions or legal

theories of counselo 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 amp testify- 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 amp the expertise is relevanto Experts range from regular professionals to exotic professionals

15

Work Product Doctrine

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 amp

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 amp party canrsquot 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 amp Creatively Bad can demonstrate one-sidedness greed amp 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 para might settle for less

- Settlements control risko Getting something is better than nothingo Trials are unpredictable amp all-or-nothingo Trials are expensive (donrsquot know how long either)

- Factors for companies to consider settlingo Investors bad press

- Contracting to Dismisso Release simplest form of settlement is a K where para 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 decisionso Parties can settle via phone meeting or exchanging docso No ct approval needed for settlement

Exceptions minors class actions multi cases (R 23 e3)

16

Prefiling agreement not to sue

Voluntary dismissal amp agreement not to sue

Dismissal with prejudice

o Settlements are binding Ks that can be attacked on the grounds of fraud duress mistake incapacity unconscionability etc

o Written settlements should contain all basic info amp must be signed and dated

o Prefiling agreements not to sue eliminate all litigation costs and carefully define scope of threatened law suit

o If para sues anyway should use R 8c affirmative defense being the arbitration amp award or should move for summary judgment (R 56b)

o If breaks settlement terms para should sue for breach of Ko Dismissal of Actions

Voluntary Dismissal para voluntarily dismisses claim before answer is filed Valuable to donrsquot need to acceptdeny para claims Valuable to para 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 para 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 donrsquot need to start all over again in back of line (like a breach of K for broken settlement)

A consent decree invokes the courtrsquos jurisdiction to enforce the settlement

Aka stipulated judgmento 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 risko 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- 3rd Party Participation in Settlement Facilitation Encouragement amp Coercion

o Mediation = assisted negotiation = for when settlements fail Goal agreement Positional mediation as what it will take to settle the case Interest mediation discovering monetary amp 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 amp 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 pointless

17

R 56

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 factso If there is an issue of material fact it might change the outcome of

the caseo If there is a genuine dispute of the issue a reasonable jury 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 hearsayo Canrsquot just offer a conclusion need supporting factso A moving party always bears the initial responsibility for informing

district ct of the basis for the motiono No requirement that moving party is required to support its motion

with affidavits etc to negate the non-moving partyrsquos claimo 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 canrsquot reply that evidence is forthcoming If so then use R 56f

If adverse (non-moving) party wins SJ doesnrsquot 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 partyrsquo favor considering which party has the burden

- To wino Moving Party with burden introduce evidence to make their claimo Moving Party wno burden claim that non-moving party doesnrsquot 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

Ctrsquos 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 partyo Yes SJ is not appropriateo No SJ is appropriate

18

Ways to knock out a casePre-answer motion amp SJ

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 donrsquot 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 judgeso 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 judgersquos bias bc a judge still rules on good amount of decisions during the trial

Procedure for recusing judge 28 USC sect 455- Where judge has

o Served as an atty in the matter in controversyo Served in gov employment amp expressed an opinion concerning the

merits of the particular case controversyo 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 amp 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)o Jury trial = R 38o Does not indicate scope of the righto 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 juryApplying the Historical Test to New Claims

- 2 part testo Compare action to actions that were available in 1791o Determine the remedy sought

Only ask 2nd question is there is no appropriate analogy Exceptions Jury wonrsquot hear cases about damages if

Damages are restitutionary

19

Monetary award intertwines with injunction

- Can waive right to jury trial by failing to raise righto 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 para seeks equitable remedies amp counter-claims are money both are entitled to a jury trial

- If para 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 adjudicationo 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 juryrsquos boundaries in their role as

decision makero Law of evidenceo Power instruction juryo Directed verdicto JNOVo 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

K case

para seeks $$ damages Jury

para seeks specific perf Judge

para seeks reformation Judge

para seeks rescindment Judgee

Nuisance property case

para seeks damages Jury

para seeks injunction Judge

Stolen ring

para seeks to recover value (trover) Jury

para seeks to recover the ring

(replevlin)

Jury

Wrongful occupation of property

para seeks damages Jury

para seeks to eject Jury

20

Need some proof of what happened evidence canrsquot 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 amp 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 amp the system of jury trial

dictate the particular forms by which the system tries to assure rationality and its limits

Juries Democracy amp 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 amp 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 lsquopreponderance of evidencersquo = 51o Only matters in a perfectly balanced case which party carries the

burden of persuasion (only when it is 5050 that burden matters)

- Burden of Productiono Basic idea party who bears the burden of production has to produce

each evidence in support of each elemento Party who has the burden of persuasion also have the burden of

productiono para has the burden for the elements of the claim and has the burden

for the affirmative defenseo Requires party to produce find amp present evidenceo Summary Judgment relies on burden of production

Need sufficient evidence to allow a rational trier of fact to find in her favor

o Meeting onersquos burden does not mean that the trier of fact has to rule in your favor only that they are able to

Controlling Juries Before the Verdict- Directed Verdict

o Judgment as a matter of law before vedicto Purpose to take the case away from the jury on the ground that the

evidence is insufficient to support a verdict for the para (R 50a)o First opportunity after paralsquos case Last opportunity before the Jury

Instructions

21

Can move for a directed verdict multiple timeso No 7th A violation

For 7th A need a casecontroversy (legitimate dispute) Constitutional role of fact-finder is not required

o Ct will only look at all evidence from both sides amp ask ldquois there a substantial conflict in evidence

Need a substantial amnt not a scintillao 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 amp substance issues

Can motion multiple timeso 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 wonrsquot reach verdicts

that canrsquot be sustained by the evidence Screen jury to elimination jurors who will likely

reach irrational verdicts (bc of sympathies or dimness)

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 juryo Prerequisite a motion for a directed verdict

Donrsquot move for a DV canrsquot move for a JNOV Purpose of Prerequisite

Preserves sufficiency of the evidence as a question of law

Calls the court amp partyrsquos 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 scripto Judges should not let cases go to jury without a sufficient amount of

evidenceo JNOVrsquos almost always result in an appeal

Only motion denied that can be immediately appealedo Little authority for the standard for reviewing a trial judgersquos JNOVo Credibility issues are always for the jury (Judge shouldnrsquot be 13th

juror)- New Trial

o Granting JNOV = wrong winnero New trial = a start-over not a declaration of who should have wono 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

22

Judgment as a Matter of Law- Directed verdict (R 50a)

before jury- JNOV (R 50b) after jury

Verdict Problem Bad instructions given or jury didnrsquot understand

instructions ldquoJNOV literdquo Judge doesnrsquot want to direct a verdict so will try it

again Judge will rule on new trial amp JNOV motion

together (R 59d)o No interlocutory appeals for new trials in federal ct

VIII Respect for Judgments

- Procedural rules serve 2 purposeso Air disputes completely and reach and accurate amp just outcomeo Seek to end disputes even if outcome is less than desirable

- Finality statutes of limitation claim preclusion amp issue preclusion- Claim preclusion forbids a party from relitigating a claim that should have

been raised in former litigationo Claim preclusion = ldquores judicatardquoo Goals efficiency finality consistent results

- Issue preclusion when some issue involved in that claim has been previously litigatedo Issue preclusion = ldquocollateral estoppelrdquo

A Claim Preclusion Res judicata Same claim amp same parties 4 prerequisites needed

- Claim in 2nd action must be same claim that was litigated in the 1st action- Parties must be the same- Judgment rendered in 1st action must be final- Judgment must have been rendered on the merits of the case

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 para litigated a subset of all available

disputes between the parties in the 1st suit

- Restatement Test of what is a claimo When a valid and final judgment rendered in an action extinguishes a

paralsquos claim the claim extinguished all right of the para to remedies against the with respect 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 ldquotransactionrdquo and what groupings constitute a ldquoseriesrdquo 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 partiesrsquo expectations or business understanding or usage

Between the Same Parties- Claim preclusion only works between those who were the parties to both the

1st amp 2nd lawsuits

23

Note claims that could not be joined will not be barred by claim preclusion

Interrelated by same transaction or series of transactions

2 Constitutional Prerequisites 1- Notice 2- Actual parties must know that they are repping the interests of others

JNOV = R 50New trial = R 59

- Generally separate individuals are regarded as having separate claims- Several exceptions

o Privity an ongoing or contractual relationship (most important)o Substantive Legal relationship ex successive ownership of land with

easements 1 party sues to enforce the easement against the 2nd party amp wins 2nd party sells to 3rd party ndash 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 amp Claim Preclusiono Was the issue decided in the proper adjudication identical with the

issue presented in the action in questiono Was there a final judgmento Was the party against whom the plea is asserted a party or a person

in privity with a party in the prior adjudicationo Was the issue in the 1st case competently fully amp 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 ldquoOn the Meritsrdquo- Not all judgments receive preclusive effect- Cts may attach preclusive effect bc

o Ct actually considered and ruled on the merits of the caseo 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 effecto Full jury trial = Yes preclusive effecto Directed verdict = Yes preclusive effecto Summary Judgment = Yes preclusive effecto 12b6 = depends

Sup Ct has ruled that a dismissal 12b6 ruling is a judgment on the merits

But states have different rules amp 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 amp Compulsory Counterclaims

- Failure to bring a compulsory counterclaim precludes from bringing it againo 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 amp essential to prior judgment- Need an issue of fact or law that was actually litigated and determined by a

valid amp final judgment and the determination is essential to the judgment

24

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 amp 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 litigationo Evidence to the record = trial transcript jury instructions

Between Which Parties- The ldquoVictimrdquo of Preclusion

o Old common law mutuality was a requirement for both claim amp 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 amp 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 wifersquos victory

New rule husband can take advantage of issue preclusion to prevent RR re-litigating case bc RR already had a full amp fair opportunity to litigate

Victim bc if RR won in 1st case canrsquot take advantage bc husband was not a party in the 1st case

- The Precludero General rule where a para 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 para uses the prior determination like a sword

para tries to hold to prior outcome (where litigated amp lost) Good for paras can wait amp 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 para already lost suing another on same issue

o Remember 2 goals of issue preclusion Consistency of verdicts Efficiency

25

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

Action for review on an administrative record Petition for habeas corpus other proceeding to challenge a

criminal conviction sentence An action brought wout 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 Addtrsquol 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 amp discretionary limits imposed by the judge

Depositions- Deposition = a witnessrsquo sworn out-of-court testimony that is reduced to

writing for later use in court or for discovery purposes- Oral deposition

o Occur in an atty office with all attys present the witness amp court reporter or recording device

o If deposing a non-party send a subpoena to ensure presenceo Counsel doesnrsquot cross-examine unless need clarificationo Deposition may be admitted at trial if witness canrsquot testify in persono Total number of depositions by one side may not exceed 10o No deposition can exceed 7 hrs in one dayo No one can get deposed more than once wout court or opposing

party permissiono A party may depose an organization or corporation orgcorp will

appoint an agent(s) to testify on its behalfo Motion to terminate or limit deposition must be made in a non-

argumentative non-suggestive amp concise mannero If counsel or witnessparty 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

13

R 28 30 31 amp 32

o Atty writes down questions sends them to a ct reporter at the deposition who asks the question and records the witnessrsquo 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 amp 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 amp Inspection of Documents amp Things- Document = any medium of information (email letter photo video

etc)o No limit to of docs requestedo Can only hold back doc if going to use it for perjury

- Procedureo Party send a R 34 request

Request must describe documents sought with reasonable particularity

Permissible to describe the requested documents by categoryo Non-party send a subpoena issued under R 45a1C

- The burden of productiono Party may comply with production by producing relevant

documents as kept in the normal course of businesso Problems with letting the requesting party weed through files

Provides the other party access to irrevelant info Access to files waives the compelled partyrsquos objection

to production of materials that are protected from discovery

Doesnrsquot save time ndash will have to go through files anyway to see what files the other side has seen

- For Physical Mental Exams must show lsquogood causersquo (R 35)o Only can examine people who are parties or who are in the custody of

parties o These custody3rd party ndash 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 doesnrsquot 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 amp

objections Punishes parties for unjustified requests amp refusals Suggest that atty fees will be an approp sanction for most

violations

14

o R 37 Series of devices designed to elicit info or respond to partiesrsquo refusal to supply info Some sanctions are available on the occurrence of

misbehavior (R 37 dampg) 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 amp

29) E-Discovery

D Discovery in an Adversarial System Privilege amp 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 Must be documents or tangible things Prepared in anticipation of a trial litigation Prepared by or for another party or by or for that partyrsquos

representativeo 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 wonrsquot if It reveals mental impressions conclusion opinions or legal

theories of counselo 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 amp testify- 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 amp the expertise is relevanto Experts range from regular professionals to exotic professionals

15

Work Product Doctrine

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 amp

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 amp party canrsquot 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 amp Creatively Bad can demonstrate one-sidedness greed amp 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 para might settle for less

- Settlements control risko Getting something is better than nothingo Trials are unpredictable amp all-or-nothingo Trials are expensive (donrsquot know how long either)

- Factors for companies to consider settlingo Investors bad press

- Contracting to Dismisso Release simplest form of settlement is a K where para 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 decisionso Parties can settle via phone meeting or exchanging docso No ct approval needed for settlement

Exceptions minors class actions multi cases (R 23 e3)

16

Prefiling agreement not to sue

Voluntary dismissal amp agreement not to sue

Dismissal with prejudice

o Settlements are binding Ks that can be attacked on the grounds of fraud duress mistake incapacity unconscionability etc

o Written settlements should contain all basic info amp must be signed and dated

o Prefiling agreements not to sue eliminate all litigation costs and carefully define scope of threatened law suit

o If para sues anyway should use R 8c affirmative defense being the arbitration amp award or should move for summary judgment (R 56b)

o If breaks settlement terms para should sue for breach of Ko Dismissal of Actions

Voluntary Dismissal para voluntarily dismisses claim before answer is filed Valuable to donrsquot need to acceptdeny para claims Valuable to para 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 para 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 donrsquot need to start all over again in back of line (like a breach of K for broken settlement)

A consent decree invokes the courtrsquos jurisdiction to enforce the settlement

Aka stipulated judgmento 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 risko 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- 3rd Party Participation in Settlement Facilitation Encouragement amp Coercion

o Mediation = assisted negotiation = for when settlements fail Goal agreement Positional mediation as what it will take to settle the case Interest mediation discovering monetary amp 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 amp 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 pointless

17

R 56

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 factso If there is an issue of material fact it might change the outcome of

the caseo If there is a genuine dispute of the issue a reasonable jury 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 hearsayo Canrsquot just offer a conclusion need supporting factso A moving party always bears the initial responsibility for informing

district ct of the basis for the motiono No requirement that moving party is required to support its motion

with affidavits etc to negate the non-moving partyrsquos claimo 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 canrsquot reply that evidence is forthcoming If so then use R 56f

If adverse (non-moving) party wins SJ doesnrsquot 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 partyrsquo favor considering which party has the burden

- To wino Moving Party with burden introduce evidence to make their claimo Moving Party wno burden claim that non-moving party doesnrsquot 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

Ctrsquos 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 partyo Yes SJ is not appropriateo No SJ is appropriate

18

Ways to knock out a casePre-answer motion amp SJ

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 donrsquot 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 judgeso 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 judgersquos bias bc a judge still rules on good amount of decisions during the trial

Procedure for recusing judge 28 USC sect 455- Where judge has

o Served as an atty in the matter in controversyo Served in gov employment amp expressed an opinion concerning the

merits of the particular case controversyo 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 amp 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)o Jury trial = R 38o Does not indicate scope of the righto 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 juryApplying the Historical Test to New Claims

- 2 part testo Compare action to actions that were available in 1791o Determine the remedy sought

Only ask 2nd question is there is no appropriate analogy Exceptions Jury wonrsquot hear cases about damages if

Damages are restitutionary

19

Monetary award intertwines with injunction

- Can waive right to jury trial by failing to raise righto 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 para seeks equitable remedies amp counter-claims are money both are entitled to a jury trial

- If para 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 adjudicationo 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 juryrsquos boundaries in their role as

decision makero Law of evidenceo Power instruction juryo Directed verdicto JNOVo 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

K case

para seeks $$ damages Jury

para seeks specific perf Judge

para seeks reformation Judge

para seeks rescindment Judgee

Nuisance property case

para seeks damages Jury

para seeks injunction Judge

Stolen ring

para seeks to recover value (trover) Jury

para seeks to recover the ring

(replevlin)

Jury

Wrongful occupation of property

para seeks damages Jury

para seeks to eject Jury

20

Need some proof of what happened evidence canrsquot 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 amp 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 amp the system of jury trial

dictate the particular forms by which the system tries to assure rationality and its limits

Juries Democracy amp 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 amp 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 lsquopreponderance of evidencersquo = 51o Only matters in a perfectly balanced case which party carries the

burden of persuasion (only when it is 5050 that burden matters)

- Burden of Productiono Basic idea party who bears the burden of production has to produce

each evidence in support of each elemento Party who has the burden of persuasion also have the burden of

productiono para has the burden for the elements of the claim and has the burden

for the affirmative defenseo Requires party to produce find amp present evidenceo Summary Judgment relies on burden of production

Need sufficient evidence to allow a rational trier of fact to find in her favor

o Meeting onersquos burden does not mean that the trier of fact has to rule in your favor only that they are able to

Controlling Juries Before the Verdict- Directed Verdict

o Judgment as a matter of law before vedicto Purpose to take the case away from the jury on the ground that the

evidence is insufficient to support a verdict for the para (R 50a)o First opportunity after paralsquos case Last opportunity before the Jury

Instructions

21

Can move for a directed verdict multiple timeso No 7th A violation

For 7th A need a casecontroversy (legitimate dispute) Constitutional role of fact-finder is not required

o Ct will only look at all evidence from both sides amp ask ldquois there a substantial conflict in evidence

Need a substantial amnt not a scintillao 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 amp substance issues

Can motion multiple timeso 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 wonrsquot reach verdicts

that canrsquot be sustained by the evidence Screen jury to elimination jurors who will likely

reach irrational verdicts (bc of sympathies or dimness)

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 juryo Prerequisite a motion for a directed verdict

Donrsquot move for a DV canrsquot move for a JNOV Purpose of Prerequisite

Preserves sufficiency of the evidence as a question of law

Calls the court amp partyrsquos 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 scripto Judges should not let cases go to jury without a sufficient amount of

evidenceo JNOVrsquos almost always result in an appeal

Only motion denied that can be immediately appealedo Little authority for the standard for reviewing a trial judgersquos JNOVo Credibility issues are always for the jury (Judge shouldnrsquot be 13th

juror)- New Trial

o Granting JNOV = wrong winnero New trial = a start-over not a declaration of who should have wono 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

22

Judgment as a Matter of Law- Directed verdict (R 50a)

before jury- JNOV (R 50b) after jury

Verdict Problem Bad instructions given or jury didnrsquot understand

instructions ldquoJNOV literdquo Judge doesnrsquot want to direct a verdict so will try it

again Judge will rule on new trial amp JNOV motion

together (R 59d)o No interlocutory appeals for new trials in federal ct

VIII Respect for Judgments

- Procedural rules serve 2 purposeso Air disputes completely and reach and accurate amp just outcomeo Seek to end disputes even if outcome is less than desirable

- Finality statutes of limitation claim preclusion amp issue preclusion- Claim preclusion forbids a party from relitigating a claim that should have

been raised in former litigationo Claim preclusion = ldquores judicatardquoo Goals efficiency finality consistent results

- Issue preclusion when some issue involved in that claim has been previously litigatedo Issue preclusion = ldquocollateral estoppelrdquo

A Claim Preclusion Res judicata Same claim amp same parties 4 prerequisites needed

- Claim in 2nd action must be same claim that was litigated in the 1st action- Parties must be the same- Judgment rendered in 1st action must be final- Judgment must have been rendered on the merits of the case

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 para litigated a subset of all available

disputes between the parties in the 1st suit

- Restatement Test of what is a claimo When a valid and final judgment rendered in an action extinguishes a

paralsquos claim the claim extinguished all right of the para to remedies against the with respect 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 ldquotransactionrdquo and what groupings constitute a ldquoseriesrdquo 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 partiesrsquo expectations or business understanding or usage

Between the Same Parties- Claim preclusion only works between those who were the parties to both the

1st amp 2nd lawsuits

23

Note claims that could not be joined will not be barred by claim preclusion

Interrelated by same transaction or series of transactions

2 Constitutional Prerequisites 1- Notice 2- Actual parties must know that they are repping the interests of others

JNOV = R 50New trial = R 59

- Generally separate individuals are regarded as having separate claims- Several exceptions

o Privity an ongoing or contractual relationship (most important)o Substantive Legal relationship ex successive ownership of land with

easements 1 party sues to enforce the easement against the 2nd party amp wins 2nd party sells to 3rd party ndash 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 amp Claim Preclusiono Was the issue decided in the proper adjudication identical with the

issue presented in the action in questiono Was there a final judgmento Was the party against whom the plea is asserted a party or a person

in privity with a party in the prior adjudicationo Was the issue in the 1st case competently fully amp 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 ldquoOn the Meritsrdquo- Not all judgments receive preclusive effect- Cts may attach preclusive effect bc

o Ct actually considered and ruled on the merits of the caseo 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 effecto Full jury trial = Yes preclusive effecto Directed verdict = Yes preclusive effecto Summary Judgment = Yes preclusive effecto 12b6 = depends

Sup Ct has ruled that a dismissal 12b6 ruling is a judgment on the merits

But states have different rules amp 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 amp Compulsory Counterclaims

- Failure to bring a compulsory counterclaim precludes from bringing it againo 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 amp essential to prior judgment- Need an issue of fact or law that was actually litigated and determined by a

valid amp final judgment and the determination is essential to the judgment

24

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 amp 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 litigationo Evidence to the record = trial transcript jury instructions

Between Which Parties- The ldquoVictimrdquo of Preclusion

o Old common law mutuality was a requirement for both claim amp 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 amp 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 wifersquos victory

New rule husband can take advantage of issue preclusion to prevent RR re-litigating case bc RR already had a full amp fair opportunity to litigate

Victim bc if RR won in 1st case canrsquot take advantage bc husband was not a party in the 1st case

- The Precludero General rule where a para 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 para uses the prior determination like a sword

para tries to hold to prior outcome (where litigated amp lost) Good for paras can wait amp 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 para already lost suing another on same issue

o Remember 2 goals of issue preclusion Consistency of verdicts Efficiency

25

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

o Atty writes down questions sends them to a ct reporter at the deposition who asks the question and records the witnessrsquo 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 amp 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 amp Inspection of Documents amp Things- Document = any medium of information (email letter photo video

etc)o No limit to of docs requestedo Can only hold back doc if going to use it for perjury

- Procedureo Party send a R 34 request

Request must describe documents sought with reasonable particularity

Permissible to describe the requested documents by categoryo Non-party send a subpoena issued under R 45a1C

- The burden of productiono Party may comply with production by producing relevant

documents as kept in the normal course of businesso Problems with letting the requesting party weed through files

Provides the other party access to irrevelant info Access to files waives the compelled partyrsquos objection

to production of materials that are protected from discovery

Doesnrsquot save time ndash will have to go through files anyway to see what files the other side has seen

- For Physical Mental Exams must show lsquogood causersquo (R 35)o Only can examine people who are parties or who are in the custody of

parties o These custody3rd party ndash 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 doesnrsquot 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 amp

objections Punishes parties for unjustified requests amp refusals Suggest that atty fees will be an approp sanction for most

violations

14

o R 37 Series of devices designed to elicit info or respond to partiesrsquo refusal to supply info Some sanctions are available on the occurrence of

misbehavior (R 37 dampg) 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 amp

29) E-Discovery

D Discovery in an Adversarial System Privilege amp 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 Must be documents or tangible things Prepared in anticipation of a trial litigation Prepared by or for another party or by or for that partyrsquos

representativeo 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 wonrsquot if It reveals mental impressions conclusion opinions or legal

theories of counselo 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 amp testify- 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 amp the expertise is relevanto Experts range from regular professionals to exotic professionals

15

Work Product Doctrine

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 amp

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 amp party canrsquot 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 amp Creatively Bad can demonstrate one-sidedness greed amp 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 para might settle for less

- Settlements control risko Getting something is better than nothingo Trials are unpredictable amp all-or-nothingo Trials are expensive (donrsquot know how long either)

- Factors for companies to consider settlingo Investors bad press

- Contracting to Dismisso Release simplest form of settlement is a K where para 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 decisionso Parties can settle via phone meeting or exchanging docso No ct approval needed for settlement

Exceptions minors class actions multi cases (R 23 e3)

16

Prefiling agreement not to sue

Voluntary dismissal amp agreement not to sue

Dismissal with prejudice

o Settlements are binding Ks that can be attacked on the grounds of fraud duress mistake incapacity unconscionability etc

o Written settlements should contain all basic info amp must be signed and dated

o Prefiling agreements not to sue eliminate all litigation costs and carefully define scope of threatened law suit

o If para sues anyway should use R 8c affirmative defense being the arbitration amp award or should move for summary judgment (R 56b)

o If breaks settlement terms para should sue for breach of Ko Dismissal of Actions

Voluntary Dismissal para voluntarily dismisses claim before answer is filed Valuable to donrsquot need to acceptdeny para claims Valuable to para 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 para 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 donrsquot need to start all over again in back of line (like a breach of K for broken settlement)

A consent decree invokes the courtrsquos jurisdiction to enforce the settlement

Aka stipulated judgmento 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 risko 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- 3rd Party Participation in Settlement Facilitation Encouragement amp Coercion

o Mediation = assisted negotiation = for when settlements fail Goal agreement Positional mediation as what it will take to settle the case Interest mediation discovering monetary amp 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 amp 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 pointless

17

R 56

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 factso If there is an issue of material fact it might change the outcome of

the caseo If there is a genuine dispute of the issue a reasonable jury 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 hearsayo Canrsquot just offer a conclusion need supporting factso A moving party always bears the initial responsibility for informing

district ct of the basis for the motiono No requirement that moving party is required to support its motion

with affidavits etc to negate the non-moving partyrsquos claimo 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 canrsquot reply that evidence is forthcoming If so then use R 56f

If adverse (non-moving) party wins SJ doesnrsquot 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 partyrsquo favor considering which party has the burden

- To wino Moving Party with burden introduce evidence to make their claimo Moving Party wno burden claim that non-moving party doesnrsquot 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

Ctrsquos 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 partyo Yes SJ is not appropriateo No SJ is appropriate

18

Ways to knock out a casePre-answer motion amp SJ

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 donrsquot 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 judgeso 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 judgersquos bias bc a judge still rules on good amount of decisions during the trial

Procedure for recusing judge 28 USC sect 455- Where judge has

o Served as an atty in the matter in controversyo Served in gov employment amp expressed an opinion concerning the

merits of the particular case controversyo 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 amp 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)o Jury trial = R 38o Does not indicate scope of the righto 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 juryApplying the Historical Test to New Claims

- 2 part testo Compare action to actions that were available in 1791o Determine the remedy sought

Only ask 2nd question is there is no appropriate analogy Exceptions Jury wonrsquot hear cases about damages if

Damages are restitutionary

19

Monetary award intertwines with injunction

- Can waive right to jury trial by failing to raise righto 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 para seeks equitable remedies amp counter-claims are money both are entitled to a jury trial

- If para 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 adjudicationo 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 juryrsquos boundaries in their role as

decision makero Law of evidenceo Power instruction juryo Directed verdicto JNOVo 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

K case

para seeks $$ damages Jury

para seeks specific perf Judge

para seeks reformation Judge

para seeks rescindment Judgee

Nuisance property case

para seeks damages Jury

para seeks injunction Judge

Stolen ring

para seeks to recover value (trover) Jury

para seeks to recover the ring

(replevlin)

Jury

Wrongful occupation of property

para seeks damages Jury

para seeks to eject Jury

20

Need some proof of what happened evidence canrsquot 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 amp 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 amp the system of jury trial

dictate the particular forms by which the system tries to assure rationality and its limits

Juries Democracy amp 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 amp 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 lsquopreponderance of evidencersquo = 51o Only matters in a perfectly balanced case which party carries the

burden of persuasion (only when it is 5050 that burden matters)

- Burden of Productiono Basic idea party who bears the burden of production has to produce

each evidence in support of each elemento Party who has the burden of persuasion also have the burden of

productiono para has the burden for the elements of the claim and has the burden

for the affirmative defenseo Requires party to produce find amp present evidenceo Summary Judgment relies on burden of production

Need sufficient evidence to allow a rational trier of fact to find in her favor

o Meeting onersquos burden does not mean that the trier of fact has to rule in your favor only that they are able to

Controlling Juries Before the Verdict- Directed Verdict

o Judgment as a matter of law before vedicto Purpose to take the case away from the jury on the ground that the

evidence is insufficient to support a verdict for the para (R 50a)o First opportunity after paralsquos case Last opportunity before the Jury

Instructions

21

Can move for a directed verdict multiple timeso No 7th A violation

For 7th A need a casecontroversy (legitimate dispute) Constitutional role of fact-finder is not required

o Ct will only look at all evidence from both sides amp ask ldquois there a substantial conflict in evidence

Need a substantial amnt not a scintillao 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 amp substance issues

Can motion multiple timeso 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 wonrsquot reach verdicts

that canrsquot be sustained by the evidence Screen jury to elimination jurors who will likely

reach irrational verdicts (bc of sympathies or dimness)

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 juryo Prerequisite a motion for a directed verdict

Donrsquot move for a DV canrsquot move for a JNOV Purpose of Prerequisite

Preserves sufficiency of the evidence as a question of law

Calls the court amp partyrsquos 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 scripto Judges should not let cases go to jury without a sufficient amount of

evidenceo JNOVrsquos almost always result in an appeal

Only motion denied that can be immediately appealedo Little authority for the standard for reviewing a trial judgersquos JNOVo Credibility issues are always for the jury (Judge shouldnrsquot be 13th

juror)- New Trial

o Granting JNOV = wrong winnero New trial = a start-over not a declaration of who should have wono 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

22

Judgment as a Matter of Law- Directed verdict (R 50a)

before jury- JNOV (R 50b) after jury

Verdict Problem Bad instructions given or jury didnrsquot understand

instructions ldquoJNOV literdquo Judge doesnrsquot want to direct a verdict so will try it

again Judge will rule on new trial amp JNOV motion

together (R 59d)o No interlocutory appeals for new trials in federal ct

VIII Respect for Judgments

- Procedural rules serve 2 purposeso Air disputes completely and reach and accurate amp just outcomeo Seek to end disputes even if outcome is less than desirable

- Finality statutes of limitation claim preclusion amp issue preclusion- Claim preclusion forbids a party from relitigating a claim that should have

been raised in former litigationo Claim preclusion = ldquores judicatardquoo Goals efficiency finality consistent results

- Issue preclusion when some issue involved in that claim has been previously litigatedo Issue preclusion = ldquocollateral estoppelrdquo

A Claim Preclusion Res judicata Same claim amp same parties 4 prerequisites needed

- Claim in 2nd action must be same claim that was litigated in the 1st action- Parties must be the same- Judgment rendered in 1st action must be final- Judgment must have been rendered on the merits of the case

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 para litigated a subset of all available

disputes between the parties in the 1st suit

- Restatement Test of what is a claimo When a valid and final judgment rendered in an action extinguishes a

paralsquos claim the claim extinguished all right of the para to remedies against the with respect 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 ldquotransactionrdquo and what groupings constitute a ldquoseriesrdquo 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 partiesrsquo expectations or business understanding or usage

Between the Same Parties- Claim preclusion only works between those who were the parties to both the

1st amp 2nd lawsuits

23

Note claims that could not be joined will not be barred by claim preclusion

Interrelated by same transaction or series of transactions

2 Constitutional Prerequisites 1- Notice 2- Actual parties must know that they are repping the interests of others

JNOV = R 50New trial = R 59

- Generally separate individuals are regarded as having separate claims- Several exceptions

o Privity an ongoing or contractual relationship (most important)o Substantive Legal relationship ex successive ownership of land with

easements 1 party sues to enforce the easement against the 2nd party amp wins 2nd party sells to 3rd party ndash 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 amp Claim Preclusiono Was the issue decided in the proper adjudication identical with the

issue presented in the action in questiono Was there a final judgmento Was the party against whom the plea is asserted a party or a person

in privity with a party in the prior adjudicationo Was the issue in the 1st case competently fully amp 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 ldquoOn the Meritsrdquo- Not all judgments receive preclusive effect- Cts may attach preclusive effect bc

o Ct actually considered and ruled on the merits of the caseo 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 effecto Full jury trial = Yes preclusive effecto Directed verdict = Yes preclusive effecto Summary Judgment = Yes preclusive effecto 12b6 = depends

Sup Ct has ruled that a dismissal 12b6 ruling is a judgment on the merits

But states have different rules amp 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 amp Compulsory Counterclaims

- Failure to bring a compulsory counterclaim precludes from bringing it againo 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 amp essential to prior judgment- Need an issue of fact or law that was actually litigated and determined by a

valid amp final judgment and the determination is essential to the judgment

24

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 amp 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 litigationo Evidence to the record = trial transcript jury instructions

Between Which Parties- The ldquoVictimrdquo of Preclusion

o Old common law mutuality was a requirement for both claim amp 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 amp 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 wifersquos victory

New rule husband can take advantage of issue preclusion to prevent RR re-litigating case bc RR already had a full amp fair opportunity to litigate

Victim bc if RR won in 1st case canrsquot take advantage bc husband was not a party in the 1st case

- The Precludero General rule where a para 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 para uses the prior determination like a sword

para tries to hold to prior outcome (where litigated amp lost) Good for paras can wait amp 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 para already lost suing another on same issue

o Remember 2 goals of issue preclusion Consistency of verdicts Efficiency

25

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

o R 37 Series of devices designed to elicit info or respond to partiesrsquo refusal to supply info Some sanctions are available on the occurrence of

misbehavior (R 37 dampg) 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 amp

29) E-Discovery

D Discovery in an Adversarial System Privilege amp 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 Must be documents or tangible things Prepared in anticipation of a trial litigation Prepared by or for another party or by or for that partyrsquos

representativeo 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 wonrsquot if It reveals mental impressions conclusion opinions or legal

theories of counselo 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 amp testify- 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 amp the expertise is relevanto Experts range from regular professionals to exotic professionals

15

Work Product Doctrine

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 amp

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 amp party canrsquot 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 amp Creatively Bad can demonstrate one-sidedness greed amp 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 para might settle for less

- Settlements control risko Getting something is better than nothingo Trials are unpredictable amp all-or-nothingo Trials are expensive (donrsquot know how long either)

- Factors for companies to consider settlingo Investors bad press

- Contracting to Dismisso Release simplest form of settlement is a K where para 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 decisionso Parties can settle via phone meeting or exchanging docso No ct approval needed for settlement

Exceptions minors class actions multi cases (R 23 e3)

16

Prefiling agreement not to sue

Voluntary dismissal amp agreement not to sue

Dismissal with prejudice

o Settlements are binding Ks that can be attacked on the grounds of fraud duress mistake incapacity unconscionability etc

o Written settlements should contain all basic info amp must be signed and dated

o Prefiling agreements not to sue eliminate all litigation costs and carefully define scope of threatened law suit

o If para sues anyway should use R 8c affirmative defense being the arbitration amp award or should move for summary judgment (R 56b)

o If breaks settlement terms para should sue for breach of Ko Dismissal of Actions

Voluntary Dismissal para voluntarily dismisses claim before answer is filed Valuable to donrsquot need to acceptdeny para claims Valuable to para 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 para 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 donrsquot need to start all over again in back of line (like a breach of K for broken settlement)

A consent decree invokes the courtrsquos jurisdiction to enforce the settlement

Aka stipulated judgmento 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 risko 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- 3rd Party Participation in Settlement Facilitation Encouragement amp Coercion

o Mediation = assisted negotiation = for when settlements fail Goal agreement Positional mediation as what it will take to settle the case Interest mediation discovering monetary amp 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 amp 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 pointless

17

R 56

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 factso If there is an issue of material fact it might change the outcome of

the caseo If there is a genuine dispute of the issue a reasonable jury 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 hearsayo Canrsquot just offer a conclusion need supporting factso A moving party always bears the initial responsibility for informing

district ct of the basis for the motiono No requirement that moving party is required to support its motion

with affidavits etc to negate the non-moving partyrsquos claimo 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 canrsquot reply that evidence is forthcoming If so then use R 56f

If adverse (non-moving) party wins SJ doesnrsquot 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 partyrsquo favor considering which party has the burden

- To wino Moving Party with burden introduce evidence to make their claimo Moving Party wno burden claim that non-moving party doesnrsquot 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

Ctrsquos 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 partyo Yes SJ is not appropriateo No SJ is appropriate

18

Ways to knock out a casePre-answer motion amp SJ

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 donrsquot 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 judgeso 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 judgersquos bias bc a judge still rules on good amount of decisions during the trial

Procedure for recusing judge 28 USC sect 455- Where judge has

o Served as an atty in the matter in controversyo Served in gov employment amp expressed an opinion concerning the

merits of the particular case controversyo 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 amp 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)o Jury trial = R 38o Does not indicate scope of the righto 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 juryApplying the Historical Test to New Claims

- 2 part testo Compare action to actions that were available in 1791o Determine the remedy sought

Only ask 2nd question is there is no appropriate analogy Exceptions Jury wonrsquot hear cases about damages if

Damages are restitutionary

19

Monetary award intertwines with injunction

- Can waive right to jury trial by failing to raise righto 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 para seeks equitable remedies amp counter-claims are money both are entitled to a jury trial

- If para 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 adjudicationo 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 juryrsquos boundaries in their role as

decision makero Law of evidenceo Power instruction juryo Directed verdicto JNOVo 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

K case

para seeks $$ damages Jury

para seeks specific perf Judge

para seeks reformation Judge

para seeks rescindment Judgee

Nuisance property case

para seeks damages Jury

para seeks injunction Judge

Stolen ring

para seeks to recover value (trover) Jury

para seeks to recover the ring

(replevlin)

Jury

Wrongful occupation of property

para seeks damages Jury

para seeks to eject Jury

20

Need some proof of what happened evidence canrsquot 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 amp 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 amp the system of jury trial

dictate the particular forms by which the system tries to assure rationality and its limits

Juries Democracy amp 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 amp 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 lsquopreponderance of evidencersquo = 51o Only matters in a perfectly balanced case which party carries the

burden of persuasion (only when it is 5050 that burden matters)

- Burden of Productiono Basic idea party who bears the burden of production has to produce

each evidence in support of each elemento Party who has the burden of persuasion also have the burden of

productiono para has the burden for the elements of the claim and has the burden

for the affirmative defenseo Requires party to produce find amp present evidenceo Summary Judgment relies on burden of production

Need sufficient evidence to allow a rational trier of fact to find in her favor

o Meeting onersquos burden does not mean that the trier of fact has to rule in your favor only that they are able to

Controlling Juries Before the Verdict- Directed Verdict

o Judgment as a matter of law before vedicto Purpose to take the case away from the jury on the ground that the

evidence is insufficient to support a verdict for the para (R 50a)o First opportunity after paralsquos case Last opportunity before the Jury

Instructions

21

Can move for a directed verdict multiple timeso No 7th A violation

For 7th A need a casecontroversy (legitimate dispute) Constitutional role of fact-finder is not required

o Ct will only look at all evidence from both sides amp ask ldquois there a substantial conflict in evidence

Need a substantial amnt not a scintillao 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 amp substance issues

Can motion multiple timeso 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 wonrsquot reach verdicts

that canrsquot be sustained by the evidence Screen jury to elimination jurors who will likely

reach irrational verdicts (bc of sympathies or dimness)

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 juryo Prerequisite a motion for a directed verdict

Donrsquot move for a DV canrsquot move for a JNOV Purpose of Prerequisite

Preserves sufficiency of the evidence as a question of law

Calls the court amp partyrsquos 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 scripto Judges should not let cases go to jury without a sufficient amount of

evidenceo JNOVrsquos almost always result in an appeal

Only motion denied that can be immediately appealedo Little authority for the standard for reviewing a trial judgersquos JNOVo Credibility issues are always for the jury (Judge shouldnrsquot be 13th

juror)- New Trial

o Granting JNOV = wrong winnero New trial = a start-over not a declaration of who should have wono 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

22

Judgment as a Matter of Law- Directed verdict (R 50a)

before jury- JNOV (R 50b) after jury

Verdict Problem Bad instructions given or jury didnrsquot understand

instructions ldquoJNOV literdquo Judge doesnrsquot want to direct a verdict so will try it

again Judge will rule on new trial amp JNOV motion

together (R 59d)o No interlocutory appeals for new trials in federal ct

VIII Respect for Judgments

- Procedural rules serve 2 purposeso Air disputes completely and reach and accurate amp just outcomeo Seek to end disputes even if outcome is less than desirable

- Finality statutes of limitation claim preclusion amp issue preclusion- Claim preclusion forbids a party from relitigating a claim that should have

been raised in former litigationo Claim preclusion = ldquores judicatardquoo Goals efficiency finality consistent results

- Issue preclusion when some issue involved in that claim has been previously litigatedo Issue preclusion = ldquocollateral estoppelrdquo

A Claim Preclusion Res judicata Same claim amp same parties 4 prerequisites needed

- Claim in 2nd action must be same claim that was litigated in the 1st action- Parties must be the same- Judgment rendered in 1st action must be final- Judgment must have been rendered on the merits of the case

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 para litigated a subset of all available

disputes between the parties in the 1st suit

- Restatement Test of what is a claimo When a valid and final judgment rendered in an action extinguishes a

paralsquos claim the claim extinguished all right of the para to remedies against the with respect 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 ldquotransactionrdquo and what groupings constitute a ldquoseriesrdquo 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 partiesrsquo expectations or business understanding or usage

Between the Same Parties- Claim preclusion only works between those who were the parties to both the

1st amp 2nd lawsuits

23

Note claims that could not be joined will not be barred by claim preclusion

Interrelated by same transaction or series of transactions

2 Constitutional Prerequisites 1- Notice 2- Actual parties must know that they are repping the interests of others

JNOV = R 50New trial = R 59

- Generally separate individuals are regarded as having separate claims- Several exceptions

o Privity an ongoing or contractual relationship (most important)o Substantive Legal relationship ex successive ownership of land with

easements 1 party sues to enforce the easement against the 2nd party amp wins 2nd party sells to 3rd party ndash 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 amp Claim Preclusiono Was the issue decided in the proper adjudication identical with the

issue presented in the action in questiono Was there a final judgmento Was the party against whom the plea is asserted a party or a person

in privity with a party in the prior adjudicationo Was the issue in the 1st case competently fully amp 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 ldquoOn the Meritsrdquo- Not all judgments receive preclusive effect- Cts may attach preclusive effect bc

o Ct actually considered and ruled on the merits of the caseo 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 effecto Full jury trial = Yes preclusive effecto Directed verdict = Yes preclusive effecto Summary Judgment = Yes preclusive effecto 12b6 = depends

Sup Ct has ruled that a dismissal 12b6 ruling is a judgment on the merits

But states have different rules amp 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 amp Compulsory Counterclaims

- Failure to bring a compulsory counterclaim precludes from bringing it againo 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 amp essential to prior judgment- Need an issue of fact or law that was actually litigated and determined by a

valid amp final judgment and the determination is essential to the judgment

24

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 amp 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 litigationo Evidence to the record = trial transcript jury instructions

Between Which Parties- The ldquoVictimrdquo of Preclusion

o Old common law mutuality was a requirement for both claim amp 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 amp 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 wifersquos victory

New rule husband can take advantage of issue preclusion to prevent RR re-litigating case bc RR already had a full amp fair opportunity to litigate

Victim bc if RR won in 1st case canrsquot take advantage bc husband was not a party in the 1st case

- The Precludero General rule where a para 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 para uses the prior determination like a sword

para tries to hold to prior outcome (where litigated amp lost) Good for paras can wait amp 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 para already lost suing another on same issue

o Remember 2 goals of issue preclusion Consistency of verdicts Efficiency

25

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

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 amp

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 amp party canrsquot 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 amp Creatively Bad can demonstrate one-sidedness greed amp 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 para might settle for less

- Settlements control risko Getting something is better than nothingo Trials are unpredictable amp all-or-nothingo Trials are expensive (donrsquot know how long either)

- Factors for companies to consider settlingo Investors bad press

- Contracting to Dismisso Release simplest form of settlement is a K where para 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 decisionso Parties can settle via phone meeting or exchanging docso No ct approval needed for settlement

Exceptions minors class actions multi cases (R 23 e3)

16

Prefiling agreement not to sue

Voluntary dismissal amp agreement not to sue

Dismissal with prejudice

o Settlements are binding Ks that can be attacked on the grounds of fraud duress mistake incapacity unconscionability etc

o Written settlements should contain all basic info amp must be signed and dated

o Prefiling agreements not to sue eliminate all litigation costs and carefully define scope of threatened law suit

o If para sues anyway should use R 8c affirmative defense being the arbitration amp award or should move for summary judgment (R 56b)

o If breaks settlement terms para should sue for breach of Ko Dismissal of Actions

Voluntary Dismissal para voluntarily dismisses claim before answer is filed Valuable to donrsquot need to acceptdeny para claims Valuable to para 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 para 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 donrsquot need to start all over again in back of line (like a breach of K for broken settlement)

A consent decree invokes the courtrsquos jurisdiction to enforce the settlement

Aka stipulated judgmento 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 risko 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- 3rd Party Participation in Settlement Facilitation Encouragement amp Coercion

o Mediation = assisted negotiation = for when settlements fail Goal agreement Positional mediation as what it will take to settle the case Interest mediation discovering monetary amp 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 amp 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 pointless

17

R 56

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 factso If there is an issue of material fact it might change the outcome of

the caseo If there is a genuine dispute of the issue a reasonable jury 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 hearsayo Canrsquot just offer a conclusion need supporting factso A moving party always bears the initial responsibility for informing

district ct of the basis for the motiono No requirement that moving party is required to support its motion

with affidavits etc to negate the non-moving partyrsquos claimo 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 canrsquot reply that evidence is forthcoming If so then use R 56f

If adverse (non-moving) party wins SJ doesnrsquot 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 partyrsquo favor considering which party has the burden

- To wino Moving Party with burden introduce evidence to make their claimo Moving Party wno burden claim that non-moving party doesnrsquot 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

Ctrsquos 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 partyo Yes SJ is not appropriateo No SJ is appropriate

18

Ways to knock out a casePre-answer motion amp SJ

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 donrsquot 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 judgeso 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 judgersquos bias bc a judge still rules on good amount of decisions during the trial

Procedure for recusing judge 28 USC sect 455- Where judge has

o Served as an atty in the matter in controversyo Served in gov employment amp expressed an opinion concerning the

merits of the particular case controversyo 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 amp 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)o Jury trial = R 38o Does not indicate scope of the righto 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 juryApplying the Historical Test to New Claims

- 2 part testo Compare action to actions that were available in 1791o Determine the remedy sought

Only ask 2nd question is there is no appropriate analogy Exceptions Jury wonrsquot hear cases about damages if

Damages are restitutionary

19

Monetary award intertwines with injunction

- Can waive right to jury trial by failing to raise righto 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 para seeks equitable remedies amp counter-claims are money both are entitled to a jury trial

- If para 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 adjudicationo 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 juryrsquos boundaries in their role as

decision makero Law of evidenceo Power instruction juryo Directed verdicto JNOVo 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

K case

para seeks $$ damages Jury

para seeks specific perf Judge

para seeks reformation Judge

para seeks rescindment Judgee

Nuisance property case

para seeks damages Jury

para seeks injunction Judge

Stolen ring

para seeks to recover value (trover) Jury

para seeks to recover the ring

(replevlin)

Jury

Wrongful occupation of property

para seeks damages Jury

para seeks to eject Jury

20

Need some proof of what happened evidence canrsquot 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 amp 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 amp the system of jury trial

dictate the particular forms by which the system tries to assure rationality and its limits

Juries Democracy amp 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 amp 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 lsquopreponderance of evidencersquo = 51o Only matters in a perfectly balanced case which party carries the

burden of persuasion (only when it is 5050 that burden matters)

- Burden of Productiono Basic idea party who bears the burden of production has to produce

each evidence in support of each elemento Party who has the burden of persuasion also have the burden of

productiono para has the burden for the elements of the claim and has the burden

for the affirmative defenseo Requires party to produce find amp present evidenceo Summary Judgment relies on burden of production

Need sufficient evidence to allow a rational trier of fact to find in her favor

o Meeting onersquos burden does not mean that the trier of fact has to rule in your favor only that they are able to

Controlling Juries Before the Verdict- Directed Verdict

o Judgment as a matter of law before vedicto Purpose to take the case away from the jury on the ground that the

evidence is insufficient to support a verdict for the para (R 50a)o First opportunity after paralsquos case Last opportunity before the Jury

Instructions

21

Can move for a directed verdict multiple timeso No 7th A violation

For 7th A need a casecontroversy (legitimate dispute) Constitutional role of fact-finder is not required

o Ct will only look at all evidence from both sides amp ask ldquois there a substantial conflict in evidence

Need a substantial amnt not a scintillao 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 amp substance issues

Can motion multiple timeso 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 wonrsquot reach verdicts

that canrsquot be sustained by the evidence Screen jury to elimination jurors who will likely

reach irrational verdicts (bc of sympathies or dimness)

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 juryo Prerequisite a motion for a directed verdict

Donrsquot move for a DV canrsquot move for a JNOV Purpose of Prerequisite

Preserves sufficiency of the evidence as a question of law

Calls the court amp partyrsquos 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 scripto Judges should not let cases go to jury without a sufficient amount of

evidenceo JNOVrsquos almost always result in an appeal

Only motion denied that can be immediately appealedo Little authority for the standard for reviewing a trial judgersquos JNOVo Credibility issues are always for the jury (Judge shouldnrsquot be 13th

juror)- New Trial

o Granting JNOV = wrong winnero New trial = a start-over not a declaration of who should have wono 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

22

Judgment as a Matter of Law- Directed verdict (R 50a)

before jury- JNOV (R 50b) after jury

Verdict Problem Bad instructions given or jury didnrsquot understand

instructions ldquoJNOV literdquo Judge doesnrsquot want to direct a verdict so will try it

again Judge will rule on new trial amp JNOV motion

together (R 59d)o No interlocutory appeals for new trials in federal ct

VIII Respect for Judgments

- Procedural rules serve 2 purposeso Air disputes completely and reach and accurate amp just outcomeo Seek to end disputes even if outcome is less than desirable

- Finality statutes of limitation claim preclusion amp issue preclusion- Claim preclusion forbids a party from relitigating a claim that should have

been raised in former litigationo Claim preclusion = ldquores judicatardquoo Goals efficiency finality consistent results

- Issue preclusion when some issue involved in that claim has been previously litigatedo Issue preclusion = ldquocollateral estoppelrdquo

A Claim Preclusion Res judicata Same claim amp same parties 4 prerequisites needed

- Claim in 2nd action must be same claim that was litigated in the 1st action- Parties must be the same- Judgment rendered in 1st action must be final- Judgment must have been rendered on the merits of the case

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 para litigated a subset of all available

disputes between the parties in the 1st suit

- Restatement Test of what is a claimo When a valid and final judgment rendered in an action extinguishes a

paralsquos claim the claim extinguished all right of the para to remedies against the with respect 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 ldquotransactionrdquo and what groupings constitute a ldquoseriesrdquo 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 partiesrsquo expectations or business understanding or usage

Between the Same Parties- Claim preclusion only works between those who were the parties to both the

1st amp 2nd lawsuits

23

Note claims that could not be joined will not be barred by claim preclusion

Interrelated by same transaction or series of transactions

2 Constitutional Prerequisites 1- Notice 2- Actual parties must know that they are repping the interests of others

JNOV = R 50New trial = R 59

- Generally separate individuals are regarded as having separate claims- Several exceptions

o Privity an ongoing or contractual relationship (most important)o Substantive Legal relationship ex successive ownership of land with

easements 1 party sues to enforce the easement against the 2nd party amp wins 2nd party sells to 3rd party ndash 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 amp Claim Preclusiono Was the issue decided in the proper adjudication identical with the

issue presented in the action in questiono Was there a final judgmento Was the party against whom the plea is asserted a party or a person

in privity with a party in the prior adjudicationo Was the issue in the 1st case competently fully amp 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 ldquoOn the Meritsrdquo- Not all judgments receive preclusive effect- Cts may attach preclusive effect bc

o Ct actually considered and ruled on the merits of the caseo 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 effecto Full jury trial = Yes preclusive effecto Directed verdict = Yes preclusive effecto Summary Judgment = Yes preclusive effecto 12b6 = depends

Sup Ct has ruled that a dismissal 12b6 ruling is a judgment on the merits

But states have different rules amp 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 amp Compulsory Counterclaims

- Failure to bring a compulsory counterclaim precludes from bringing it againo 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 amp essential to prior judgment- Need an issue of fact or law that was actually litigated and determined by a

valid amp final judgment and the determination is essential to the judgment

24

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 amp 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 litigationo Evidence to the record = trial transcript jury instructions

Between Which Parties- The ldquoVictimrdquo of Preclusion

o Old common law mutuality was a requirement for both claim amp 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 amp 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 wifersquos victory

New rule husband can take advantage of issue preclusion to prevent RR re-litigating case bc RR already had a full amp fair opportunity to litigate

Victim bc if RR won in 1st case canrsquot take advantage bc husband was not a party in the 1st case

- The Precludero General rule where a para 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 para uses the prior determination like a sword

para tries to hold to prior outcome (where litigated amp lost) Good for paras can wait amp 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 para already lost suing another on same issue

o Remember 2 goals of issue preclusion Consistency of verdicts Efficiency

25

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

o Settlements are binding Ks that can be attacked on the grounds of fraud duress mistake incapacity unconscionability etc

o Written settlements should contain all basic info amp must be signed and dated

o Prefiling agreements not to sue eliminate all litigation costs and carefully define scope of threatened law suit

o If para sues anyway should use R 8c affirmative defense being the arbitration amp award or should move for summary judgment (R 56b)

o If breaks settlement terms para should sue for breach of Ko Dismissal of Actions

Voluntary Dismissal para voluntarily dismisses claim before answer is filed Valuable to donrsquot need to acceptdeny para claims Valuable to para 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 para 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 donrsquot need to start all over again in back of line (like a breach of K for broken settlement)

A consent decree invokes the courtrsquos jurisdiction to enforce the settlement

Aka stipulated judgmento 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 risko 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- 3rd Party Participation in Settlement Facilitation Encouragement amp Coercion

o Mediation = assisted negotiation = for when settlements fail Goal agreement Positional mediation as what it will take to settle the case Interest mediation discovering monetary amp 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 amp 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 pointless

17

R 56

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 factso If there is an issue of material fact it might change the outcome of

the caseo If there is a genuine dispute of the issue a reasonable jury 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 hearsayo Canrsquot just offer a conclusion need supporting factso A moving party always bears the initial responsibility for informing

district ct of the basis for the motiono No requirement that moving party is required to support its motion

with affidavits etc to negate the non-moving partyrsquos claimo 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 canrsquot reply that evidence is forthcoming If so then use R 56f

If adverse (non-moving) party wins SJ doesnrsquot 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 partyrsquo favor considering which party has the burden

- To wino Moving Party with burden introduce evidence to make their claimo Moving Party wno burden claim that non-moving party doesnrsquot 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

Ctrsquos 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 partyo Yes SJ is not appropriateo No SJ is appropriate

18

Ways to knock out a casePre-answer motion amp SJ

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 donrsquot 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 judgeso 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 judgersquos bias bc a judge still rules on good amount of decisions during the trial

Procedure for recusing judge 28 USC sect 455- Where judge has

o Served as an atty in the matter in controversyo Served in gov employment amp expressed an opinion concerning the

merits of the particular case controversyo 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 amp 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)o Jury trial = R 38o Does not indicate scope of the righto 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 juryApplying the Historical Test to New Claims

- 2 part testo Compare action to actions that were available in 1791o Determine the remedy sought

Only ask 2nd question is there is no appropriate analogy Exceptions Jury wonrsquot hear cases about damages if

Damages are restitutionary

19

Monetary award intertwines with injunction

- Can waive right to jury trial by failing to raise righto 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 para seeks equitable remedies amp counter-claims are money both are entitled to a jury trial

- If para 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 adjudicationo 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 juryrsquos boundaries in their role as

decision makero Law of evidenceo Power instruction juryo Directed verdicto JNOVo 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

K case

para seeks $$ damages Jury

para seeks specific perf Judge

para seeks reformation Judge

para seeks rescindment Judgee

Nuisance property case

para seeks damages Jury

para seeks injunction Judge

Stolen ring

para seeks to recover value (trover) Jury

para seeks to recover the ring

(replevlin)

Jury

Wrongful occupation of property

para seeks damages Jury

para seeks to eject Jury

20

Need some proof of what happened evidence canrsquot 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 amp 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 amp the system of jury trial

dictate the particular forms by which the system tries to assure rationality and its limits

Juries Democracy amp 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 amp 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 lsquopreponderance of evidencersquo = 51o Only matters in a perfectly balanced case which party carries the

burden of persuasion (only when it is 5050 that burden matters)

- Burden of Productiono Basic idea party who bears the burden of production has to produce

each evidence in support of each elemento Party who has the burden of persuasion also have the burden of

productiono para has the burden for the elements of the claim and has the burden

for the affirmative defenseo Requires party to produce find amp present evidenceo Summary Judgment relies on burden of production

Need sufficient evidence to allow a rational trier of fact to find in her favor

o Meeting onersquos burden does not mean that the trier of fact has to rule in your favor only that they are able to

Controlling Juries Before the Verdict- Directed Verdict

o Judgment as a matter of law before vedicto Purpose to take the case away from the jury on the ground that the

evidence is insufficient to support a verdict for the para (R 50a)o First opportunity after paralsquos case Last opportunity before the Jury

Instructions

21

Can move for a directed verdict multiple timeso No 7th A violation

For 7th A need a casecontroversy (legitimate dispute) Constitutional role of fact-finder is not required

o Ct will only look at all evidence from both sides amp ask ldquois there a substantial conflict in evidence

Need a substantial amnt not a scintillao 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 amp substance issues

Can motion multiple timeso 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 wonrsquot reach verdicts

that canrsquot be sustained by the evidence Screen jury to elimination jurors who will likely

reach irrational verdicts (bc of sympathies or dimness)

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 juryo Prerequisite a motion for a directed verdict

Donrsquot move for a DV canrsquot move for a JNOV Purpose of Prerequisite

Preserves sufficiency of the evidence as a question of law

Calls the court amp partyrsquos 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 scripto Judges should not let cases go to jury without a sufficient amount of

evidenceo JNOVrsquos almost always result in an appeal

Only motion denied that can be immediately appealedo Little authority for the standard for reviewing a trial judgersquos JNOVo Credibility issues are always for the jury (Judge shouldnrsquot be 13th

juror)- New Trial

o Granting JNOV = wrong winnero New trial = a start-over not a declaration of who should have wono 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

22

Judgment as a Matter of Law- Directed verdict (R 50a)

before jury- JNOV (R 50b) after jury

Verdict Problem Bad instructions given or jury didnrsquot understand

instructions ldquoJNOV literdquo Judge doesnrsquot want to direct a verdict so will try it

again Judge will rule on new trial amp JNOV motion

together (R 59d)o No interlocutory appeals for new trials in federal ct

VIII Respect for Judgments

- Procedural rules serve 2 purposeso Air disputes completely and reach and accurate amp just outcomeo Seek to end disputes even if outcome is less than desirable

- Finality statutes of limitation claim preclusion amp issue preclusion- Claim preclusion forbids a party from relitigating a claim that should have

been raised in former litigationo Claim preclusion = ldquores judicatardquoo Goals efficiency finality consistent results

- Issue preclusion when some issue involved in that claim has been previously litigatedo Issue preclusion = ldquocollateral estoppelrdquo

A Claim Preclusion Res judicata Same claim amp same parties 4 prerequisites needed

- Claim in 2nd action must be same claim that was litigated in the 1st action- Parties must be the same- Judgment rendered in 1st action must be final- Judgment must have been rendered on the merits of the case

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 para litigated a subset of all available

disputes between the parties in the 1st suit

- Restatement Test of what is a claimo When a valid and final judgment rendered in an action extinguishes a

paralsquos claim the claim extinguished all right of the para to remedies against the with respect 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 ldquotransactionrdquo and what groupings constitute a ldquoseriesrdquo 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 partiesrsquo expectations or business understanding or usage

Between the Same Parties- Claim preclusion only works between those who were the parties to both the

1st amp 2nd lawsuits

23

Note claims that could not be joined will not be barred by claim preclusion

Interrelated by same transaction or series of transactions

2 Constitutional Prerequisites 1- Notice 2- Actual parties must know that they are repping the interests of others

JNOV = R 50New trial = R 59

- Generally separate individuals are regarded as having separate claims- Several exceptions

o Privity an ongoing or contractual relationship (most important)o Substantive Legal relationship ex successive ownership of land with

easements 1 party sues to enforce the easement against the 2nd party amp wins 2nd party sells to 3rd party ndash 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 amp Claim Preclusiono Was the issue decided in the proper adjudication identical with the

issue presented in the action in questiono Was there a final judgmento Was the party against whom the plea is asserted a party or a person

in privity with a party in the prior adjudicationo Was the issue in the 1st case competently fully amp 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 ldquoOn the Meritsrdquo- Not all judgments receive preclusive effect- Cts may attach preclusive effect bc

o Ct actually considered and ruled on the merits of the caseo 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 effecto Full jury trial = Yes preclusive effecto Directed verdict = Yes preclusive effecto Summary Judgment = Yes preclusive effecto 12b6 = depends

Sup Ct has ruled that a dismissal 12b6 ruling is a judgment on the merits

But states have different rules amp 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 amp Compulsory Counterclaims

- Failure to bring a compulsory counterclaim precludes from bringing it againo 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 amp essential to prior judgment- Need an issue of fact or law that was actually litigated and determined by a

valid amp final judgment and the determination is essential to the judgment

24

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 amp 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 litigationo Evidence to the record = trial transcript jury instructions

Between Which Parties- The ldquoVictimrdquo of Preclusion

o Old common law mutuality was a requirement for both claim amp 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 amp 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 wifersquos victory

New rule husband can take advantage of issue preclusion to prevent RR re-litigating case bc RR already had a full amp fair opportunity to litigate

Victim bc if RR won in 1st case canrsquot take advantage bc husband was not a party in the 1st case

- The Precludero General rule where a para 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 para uses the prior determination like a sword

para tries to hold to prior outcome (where litigated amp lost) Good for paras can wait amp 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 para already lost suing another on same issue

o Remember 2 goals of issue preclusion Consistency of verdicts Efficiency

25

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

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 factso If there is an issue of material fact it might change the outcome of

the caseo If there is a genuine dispute of the issue a reasonable jury 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 hearsayo Canrsquot just offer a conclusion need supporting factso A moving party always bears the initial responsibility for informing

district ct of the basis for the motiono No requirement that moving party is required to support its motion

with affidavits etc to negate the non-moving partyrsquos claimo 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 canrsquot reply that evidence is forthcoming If so then use R 56f

If adverse (non-moving) party wins SJ doesnrsquot 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 partyrsquo favor considering which party has the burden

- To wino Moving Party with burden introduce evidence to make their claimo Moving Party wno burden claim that non-moving party doesnrsquot 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

Ctrsquos 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 partyo Yes SJ is not appropriateo No SJ is appropriate

18

Ways to knock out a casePre-answer motion amp SJ

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 donrsquot 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 judgeso 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 judgersquos bias bc a judge still rules on good amount of decisions during the trial

Procedure for recusing judge 28 USC sect 455- Where judge has

o Served as an atty in the matter in controversyo Served in gov employment amp expressed an opinion concerning the

merits of the particular case controversyo 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 amp 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)o Jury trial = R 38o Does not indicate scope of the righto 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 juryApplying the Historical Test to New Claims

- 2 part testo Compare action to actions that were available in 1791o Determine the remedy sought

Only ask 2nd question is there is no appropriate analogy Exceptions Jury wonrsquot hear cases about damages if

Damages are restitutionary

19

Monetary award intertwines with injunction

- Can waive right to jury trial by failing to raise righto 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 para seeks equitable remedies amp counter-claims are money both are entitled to a jury trial

- If para 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 adjudicationo 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 juryrsquos boundaries in their role as

decision makero Law of evidenceo Power instruction juryo Directed verdicto JNOVo 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

K case

para seeks $$ damages Jury

para seeks specific perf Judge

para seeks reformation Judge

para seeks rescindment Judgee

Nuisance property case

para seeks damages Jury

para seeks injunction Judge

Stolen ring

para seeks to recover value (trover) Jury

para seeks to recover the ring

(replevlin)

Jury

Wrongful occupation of property

para seeks damages Jury

para seeks to eject Jury

20

Need some proof of what happened evidence canrsquot 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 amp 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 amp the system of jury trial

dictate the particular forms by which the system tries to assure rationality and its limits

Juries Democracy amp 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 amp 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 lsquopreponderance of evidencersquo = 51o Only matters in a perfectly balanced case which party carries the

burden of persuasion (only when it is 5050 that burden matters)

- Burden of Productiono Basic idea party who bears the burden of production has to produce

each evidence in support of each elemento Party who has the burden of persuasion also have the burden of

productiono para has the burden for the elements of the claim and has the burden

for the affirmative defenseo Requires party to produce find amp present evidenceo Summary Judgment relies on burden of production

Need sufficient evidence to allow a rational trier of fact to find in her favor

o Meeting onersquos burden does not mean that the trier of fact has to rule in your favor only that they are able to

Controlling Juries Before the Verdict- Directed Verdict

o Judgment as a matter of law before vedicto Purpose to take the case away from the jury on the ground that the

evidence is insufficient to support a verdict for the para (R 50a)o First opportunity after paralsquos case Last opportunity before the Jury

Instructions

21

Can move for a directed verdict multiple timeso No 7th A violation

For 7th A need a casecontroversy (legitimate dispute) Constitutional role of fact-finder is not required

o Ct will only look at all evidence from both sides amp ask ldquois there a substantial conflict in evidence

Need a substantial amnt not a scintillao 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 amp substance issues

Can motion multiple timeso 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 wonrsquot reach verdicts

that canrsquot be sustained by the evidence Screen jury to elimination jurors who will likely

reach irrational verdicts (bc of sympathies or dimness)

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 juryo Prerequisite a motion for a directed verdict

Donrsquot move for a DV canrsquot move for a JNOV Purpose of Prerequisite

Preserves sufficiency of the evidence as a question of law

Calls the court amp partyrsquos 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 scripto Judges should not let cases go to jury without a sufficient amount of

evidenceo JNOVrsquos almost always result in an appeal

Only motion denied that can be immediately appealedo Little authority for the standard for reviewing a trial judgersquos JNOVo Credibility issues are always for the jury (Judge shouldnrsquot be 13th

juror)- New Trial

o Granting JNOV = wrong winnero New trial = a start-over not a declaration of who should have wono 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

22

Judgment as a Matter of Law- Directed verdict (R 50a)

before jury- JNOV (R 50b) after jury

Verdict Problem Bad instructions given or jury didnrsquot understand

instructions ldquoJNOV literdquo Judge doesnrsquot want to direct a verdict so will try it

again Judge will rule on new trial amp JNOV motion

together (R 59d)o No interlocutory appeals for new trials in federal ct

VIII Respect for Judgments

- Procedural rules serve 2 purposeso Air disputes completely and reach and accurate amp just outcomeo Seek to end disputes even if outcome is less than desirable

- Finality statutes of limitation claim preclusion amp issue preclusion- Claim preclusion forbids a party from relitigating a claim that should have

been raised in former litigationo Claim preclusion = ldquores judicatardquoo Goals efficiency finality consistent results

- Issue preclusion when some issue involved in that claim has been previously litigatedo Issue preclusion = ldquocollateral estoppelrdquo

A Claim Preclusion Res judicata Same claim amp same parties 4 prerequisites needed

- Claim in 2nd action must be same claim that was litigated in the 1st action- Parties must be the same- Judgment rendered in 1st action must be final- Judgment must have been rendered on the merits of the case

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 para litigated a subset of all available

disputes between the parties in the 1st suit

- Restatement Test of what is a claimo When a valid and final judgment rendered in an action extinguishes a

paralsquos claim the claim extinguished all right of the para to remedies against the with respect 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 ldquotransactionrdquo and what groupings constitute a ldquoseriesrdquo 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 partiesrsquo expectations or business understanding or usage

Between the Same Parties- Claim preclusion only works between those who were the parties to both the

1st amp 2nd lawsuits

23

Note claims that could not be joined will not be barred by claim preclusion

Interrelated by same transaction or series of transactions

2 Constitutional Prerequisites 1- Notice 2- Actual parties must know that they are repping the interests of others

JNOV = R 50New trial = R 59

- Generally separate individuals are regarded as having separate claims- Several exceptions

o Privity an ongoing or contractual relationship (most important)o Substantive Legal relationship ex successive ownership of land with

easements 1 party sues to enforce the easement against the 2nd party amp wins 2nd party sells to 3rd party ndash 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 amp Claim Preclusiono Was the issue decided in the proper adjudication identical with the

issue presented in the action in questiono Was there a final judgmento Was the party against whom the plea is asserted a party or a person

in privity with a party in the prior adjudicationo Was the issue in the 1st case competently fully amp 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 ldquoOn the Meritsrdquo- Not all judgments receive preclusive effect- Cts may attach preclusive effect bc

o Ct actually considered and ruled on the merits of the caseo 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 effecto Full jury trial = Yes preclusive effecto Directed verdict = Yes preclusive effecto Summary Judgment = Yes preclusive effecto 12b6 = depends

Sup Ct has ruled that a dismissal 12b6 ruling is a judgment on the merits

But states have different rules amp 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 amp Compulsory Counterclaims

- Failure to bring a compulsory counterclaim precludes from bringing it againo 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 amp essential to prior judgment- Need an issue of fact or law that was actually litigated and determined by a

valid amp final judgment and the determination is essential to the judgment

24

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 amp 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 litigationo Evidence to the record = trial transcript jury instructions

Between Which Parties- The ldquoVictimrdquo of Preclusion

o Old common law mutuality was a requirement for both claim amp 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 amp 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 wifersquos victory

New rule husband can take advantage of issue preclusion to prevent RR re-litigating case bc RR already had a full amp fair opportunity to litigate

Victim bc if RR won in 1st case canrsquot take advantage bc husband was not a party in the 1st case

- The Precludero General rule where a para 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 para uses the prior determination like a sword

para tries to hold to prior outcome (where litigated amp lost) Good for paras can wait amp 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 para already lost suing another on same issue

o Remember 2 goals of issue preclusion Consistency of verdicts Efficiency

25

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

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 donrsquot 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 judgeso 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 judgersquos bias bc a judge still rules on good amount of decisions during the trial

Procedure for recusing judge 28 USC sect 455- Where judge has

o Served as an atty in the matter in controversyo Served in gov employment amp expressed an opinion concerning the

merits of the particular case controversyo 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 amp 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)o Jury trial = R 38o Does not indicate scope of the righto 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 juryApplying the Historical Test to New Claims

- 2 part testo Compare action to actions that were available in 1791o Determine the remedy sought

Only ask 2nd question is there is no appropriate analogy Exceptions Jury wonrsquot hear cases about damages if

Damages are restitutionary

19

Monetary award intertwines with injunction

- Can waive right to jury trial by failing to raise righto 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 para seeks equitable remedies amp counter-claims are money both are entitled to a jury trial

- If para 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 adjudicationo 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 juryrsquos boundaries in their role as

decision makero Law of evidenceo Power instruction juryo Directed verdicto JNOVo 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

K case

para seeks $$ damages Jury

para seeks specific perf Judge

para seeks reformation Judge

para seeks rescindment Judgee

Nuisance property case

para seeks damages Jury

para seeks injunction Judge

Stolen ring

para seeks to recover value (trover) Jury

para seeks to recover the ring

(replevlin)

Jury

Wrongful occupation of property

para seeks damages Jury

para seeks to eject Jury

20

Need some proof of what happened evidence canrsquot 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 amp 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 amp the system of jury trial

dictate the particular forms by which the system tries to assure rationality and its limits

Juries Democracy amp 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 amp 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 lsquopreponderance of evidencersquo = 51o Only matters in a perfectly balanced case which party carries the

burden of persuasion (only when it is 5050 that burden matters)

- Burden of Productiono Basic idea party who bears the burden of production has to produce

each evidence in support of each elemento Party who has the burden of persuasion also have the burden of

productiono para has the burden for the elements of the claim and has the burden

for the affirmative defenseo Requires party to produce find amp present evidenceo Summary Judgment relies on burden of production

Need sufficient evidence to allow a rational trier of fact to find in her favor

o Meeting onersquos burden does not mean that the trier of fact has to rule in your favor only that they are able to

Controlling Juries Before the Verdict- Directed Verdict

o Judgment as a matter of law before vedicto Purpose to take the case away from the jury on the ground that the

evidence is insufficient to support a verdict for the para (R 50a)o First opportunity after paralsquos case Last opportunity before the Jury

Instructions

21

Can move for a directed verdict multiple timeso No 7th A violation

For 7th A need a casecontroversy (legitimate dispute) Constitutional role of fact-finder is not required

o Ct will only look at all evidence from both sides amp ask ldquois there a substantial conflict in evidence

Need a substantial amnt not a scintillao 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 amp substance issues

Can motion multiple timeso 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 wonrsquot reach verdicts

that canrsquot be sustained by the evidence Screen jury to elimination jurors who will likely

reach irrational verdicts (bc of sympathies or dimness)

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 juryo Prerequisite a motion for a directed verdict

Donrsquot move for a DV canrsquot move for a JNOV Purpose of Prerequisite

Preserves sufficiency of the evidence as a question of law

Calls the court amp partyrsquos 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 scripto Judges should not let cases go to jury without a sufficient amount of

evidenceo JNOVrsquos almost always result in an appeal

Only motion denied that can be immediately appealedo Little authority for the standard for reviewing a trial judgersquos JNOVo Credibility issues are always for the jury (Judge shouldnrsquot be 13th

juror)- New Trial

o Granting JNOV = wrong winnero New trial = a start-over not a declaration of who should have wono 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

22

Judgment as a Matter of Law- Directed verdict (R 50a)

before jury- JNOV (R 50b) after jury

Verdict Problem Bad instructions given or jury didnrsquot understand

instructions ldquoJNOV literdquo Judge doesnrsquot want to direct a verdict so will try it

again Judge will rule on new trial amp JNOV motion

together (R 59d)o No interlocutory appeals for new trials in federal ct

VIII Respect for Judgments

- Procedural rules serve 2 purposeso Air disputes completely and reach and accurate amp just outcomeo Seek to end disputes even if outcome is less than desirable

- Finality statutes of limitation claim preclusion amp issue preclusion- Claim preclusion forbids a party from relitigating a claim that should have

been raised in former litigationo Claim preclusion = ldquores judicatardquoo Goals efficiency finality consistent results

- Issue preclusion when some issue involved in that claim has been previously litigatedo Issue preclusion = ldquocollateral estoppelrdquo

A Claim Preclusion Res judicata Same claim amp same parties 4 prerequisites needed

- Claim in 2nd action must be same claim that was litigated in the 1st action- Parties must be the same- Judgment rendered in 1st action must be final- Judgment must have been rendered on the merits of the case

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 para litigated a subset of all available

disputes between the parties in the 1st suit

- Restatement Test of what is a claimo When a valid and final judgment rendered in an action extinguishes a

paralsquos claim the claim extinguished all right of the para to remedies against the with respect 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 ldquotransactionrdquo and what groupings constitute a ldquoseriesrdquo 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 partiesrsquo expectations or business understanding or usage

Between the Same Parties- Claim preclusion only works between those who were the parties to both the

1st amp 2nd lawsuits

23

Note claims that could not be joined will not be barred by claim preclusion

Interrelated by same transaction or series of transactions

2 Constitutional Prerequisites 1- Notice 2- Actual parties must know that they are repping the interests of others

JNOV = R 50New trial = R 59

- Generally separate individuals are regarded as having separate claims- Several exceptions

o Privity an ongoing or contractual relationship (most important)o Substantive Legal relationship ex successive ownership of land with

easements 1 party sues to enforce the easement against the 2nd party amp wins 2nd party sells to 3rd party ndash 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 amp Claim Preclusiono Was the issue decided in the proper adjudication identical with the

issue presented in the action in questiono Was there a final judgmento Was the party against whom the plea is asserted a party or a person

in privity with a party in the prior adjudicationo Was the issue in the 1st case competently fully amp 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 ldquoOn the Meritsrdquo- Not all judgments receive preclusive effect- Cts may attach preclusive effect bc

o Ct actually considered and ruled on the merits of the caseo 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 effecto Full jury trial = Yes preclusive effecto Directed verdict = Yes preclusive effecto Summary Judgment = Yes preclusive effecto 12b6 = depends

Sup Ct has ruled that a dismissal 12b6 ruling is a judgment on the merits

But states have different rules amp 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 amp Compulsory Counterclaims

- Failure to bring a compulsory counterclaim precludes from bringing it againo 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 amp essential to prior judgment- Need an issue of fact or law that was actually litigated and determined by a

valid amp final judgment and the determination is essential to the judgment

24

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 amp 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 litigationo Evidence to the record = trial transcript jury instructions

Between Which Parties- The ldquoVictimrdquo of Preclusion

o Old common law mutuality was a requirement for both claim amp 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 amp 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 wifersquos victory

New rule husband can take advantage of issue preclusion to prevent RR re-litigating case bc RR already had a full amp fair opportunity to litigate

Victim bc if RR won in 1st case canrsquot take advantage bc husband was not a party in the 1st case

- The Precludero General rule where a para 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 para uses the prior determination like a sword

para tries to hold to prior outcome (where litigated amp lost) Good for paras can wait amp 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 para already lost suing another on same issue

o Remember 2 goals of issue preclusion Consistency of verdicts Efficiency

25

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

Monetary award intertwines with injunction

- Can waive right to jury trial by failing to raise righto 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 para seeks equitable remedies amp counter-claims are money both are entitled to a jury trial

- If para 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 adjudicationo 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 juryrsquos boundaries in their role as

decision makero Law of evidenceo Power instruction juryo Directed verdicto JNOVo 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

K case

para seeks $$ damages Jury

para seeks specific perf Judge

para seeks reformation Judge

para seeks rescindment Judgee

Nuisance property case

para seeks damages Jury

para seeks injunction Judge

Stolen ring

para seeks to recover value (trover) Jury

para seeks to recover the ring

(replevlin)

Jury

Wrongful occupation of property

para seeks damages Jury

para seeks to eject Jury

20

Need some proof of what happened evidence canrsquot 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 amp 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 amp the system of jury trial

dictate the particular forms by which the system tries to assure rationality and its limits

Juries Democracy amp 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 amp 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 lsquopreponderance of evidencersquo = 51o Only matters in a perfectly balanced case which party carries the

burden of persuasion (only when it is 5050 that burden matters)

- Burden of Productiono Basic idea party who bears the burden of production has to produce

each evidence in support of each elemento Party who has the burden of persuasion also have the burden of

productiono para has the burden for the elements of the claim and has the burden

for the affirmative defenseo Requires party to produce find amp present evidenceo Summary Judgment relies on burden of production

Need sufficient evidence to allow a rational trier of fact to find in her favor

o Meeting onersquos burden does not mean that the trier of fact has to rule in your favor only that they are able to

Controlling Juries Before the Verdict- Directed Verdict

o Judgment as a matter of law before vedicto Purpose to take the case away from the jury on the ground that the

evidence is insufficient to support a verdict for the para (R 50a)o First opportunity after paralsquos case Last opportunity before the Jury

Instructions

21

Can move for a directed verdict multiple timeso No 7th A violation

For 7th A need a casecontroversy (legitimate dispute) Constitutional role of fact-finder is not required

o Ct will only look at all evidence from both sides amp ask ldquois there a substantial conflict in evidence

Need a substantial amnt not a scintillao 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 amp substance issues

Can motion multiple timeso 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 wonrsquot reach verdicts

that canrsquot be sustained by the evidence Screen jury to elimination jurors who will likely

reach irrational verdicts (bc of sympathies or dimness)

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 juryo Prerequisite a motion for a directed verdict

Donrsquot move for a DV canrsquot move for a JNOV Purpose of Prerequisite

Preserves sufficiency of the evidence as a question of law

Calls the court amp partyrsquos 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 scripto Judges should not let cases go to jury without a sufficient amount of

evidenceo JNOVrsquos almost always result in an appeal

Only motion denied that can be immediately appealedo Little authority for the standard for reviewing a trial judgersquos JNOVo Credibility issues are always for the jury (Judge shouldnrsquot be 13th

juror)- New Trial

o Granting JNOV = wrong winnero New trial = a start-over not a declaration of who should have wono 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

22

Judgment as a Matter of Law- Directed verdict (R 50a)

before jury- JNOV (R 50b) after jury

Verdict Problem Bad instructions given or jury didnrsquot understand

instructions ldquoJNOV literdquo Judge doesnrsquot want to direct a verdict so will try it

again Judge will rule on new trial amp JNOV motion

together (R 59d)o No interlocutory appeals for new trials in federal ct

VIII Respect for Judgments

- Procedural rules serve 2 purposeso Air disputes completely and reach and accurate amp just outcomeo Seek to end disputes even if outcome is less than desirable

- Finality statutes of limitation claim preclusion amp issue preclusion- Claim preclusion forbids a party from relitigating a claim that should have

been raised in former litigationo Claim preclusion = ldquores judicatardquoo Goals efficiency finality consistent results

- Issue preclusion when some issue involved in that claim has been previously litigatedo Issue preclusion = ldquocollateral estoppelrdquo

A Claim Preclusion Res judicata Same claim amp same parties 4 prerequisites needed

- Claim in 2nd action must be same claim that was litigated in the 1st action- Parties must be the same- Judgment rendered in 1st action must be final- Judgment must have been rendered on the merits of the case

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 para litigated a subset of all available

disputes between the parties in the 1st suit

- Restatement Test of what is a claimo When a valid and final judgment rendered in an action extinguishes a

paralsquos claim the claim extinguished all right of the para to remedies against the with respect 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 ldquotransactionrdquo and what groupings constitute a ldquoseriesrdquo 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 partiesrsquo expectations or business understanding or usage

Between the Same Parties- Claim preclusion only works between those who were the parties to both the

1st amp 2nd lawsuits

23

Note claims that could not be joined will not be barred by claim preclusion

Interrelated by same transaction or series of transactions

2 Constitutional Prerequisites 1- Notice 2- Actual parties must know that they are repping the interests of others

JNOV = R 50New trial = R 59

- Generally separate individuals are regarded as having separate claims- Several exceptions

o Privity an ongoing or contractual relationship (most important)o Substantive Legal relationship ex successive ownership of land with

easements 1 party sues to enforce the easement against the 2nd party amp wins 2nd party sells to 3rd party ndash 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 amp Claim Preclusiono Was the issue decided in the proper adjudication identical with the

issue presented in the action in questiono Was there a final judgmento Was the party against whom the plea is asserted a party or a person

in privity with a party in the prior adjudicationo Was the issue in the 1st case competently fully amp 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 ldquoOn the Meritsrdquo- Not all judgments receive preclusive effect- Cts may attach preclusive effect bc

o Ct actually considered and ruled on the merits of the caseo 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 effecto Full jury trial = Yes preclusive effecto Directed verdict = Yes preclusive effecto Summary Judgment = Yes preclusive effecto 12b6 = depends

Sup Ct has ruled that a dismissal 12b6 ruling is a judgment on the merits

But states have different rules amp 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 amp Compulsory Counterclaims

- Failure to bring a compulsory counterclaim precludes from bringing it againo 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 amp essential to prior judgment- Need an issue of fact or law that was actually litigated and determined by a

valid amp final judgment and the determination is essential to the judgment

24

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 amp 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 litigationo Evidence to the record = trial transcript jury instructions

Between Which Parties- The ldquoVictimrdquo of Preclusion

o Old common law mutuality was a requirement for both claim amp 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 amp 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 wifersquos victory

New rule husband can take advantage of issue preclusion to prevent RR re-litigating case bc RR already had a full amp fair opportunity to litigate

Victim bc if RR won in 1st case canrsquot take advantage bc husband was not a party in the 1st case

- The Precludero General rule where a para 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 para uses the prior determination like a sword

para tries to hold to prior outcome (where litigated amp lost) Good for paras can wait amp 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 para already lost suing another on same issue

o Remember 2 goals of issue preclusion Consistency of verdicts Efficiency

25

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

Need some proof of what happened evidence canrsquot 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 amp 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 amp the system of jury trial

dictate the particular forms by which the system tries to assure rationality and its limits

Juries Democracy amp 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 amp 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 lsquopreponderance of evidencersquo = 51o Only matters in a perfectly balanced case which party carries the

burden of persuasion (only when it is 5050 that burden matters)

- Burden of Productiono Basic idea party who bears the burden of production has to produce

each evidence in support of each elemento Party who has the burden of persuasion also have the burden of

productiono para has the burden for the elements of the claim and has the burden

for the affirmative defenseo Requires party to produce find amp present evidenceo Summary Judgment relies on burden of production

Need sufficient evidence to allow a rational trier of fact to find in her favor

o Meeting onersquos burden does not mean that the trier of fact has to rule in your favor only that they are able to

Controlling Juries Before the Verdict- Directed Verdict

o Judgment as a matter of law before vedicto Purpose to take the case away from the jury on the ground that the

evidence is insufficient to support a verdict for the para (R 50a)o First opportunity after paralsquos case Last opportunity before the Jury

Instructions

21

Can move for a directed verdict multiple timeso No 7th A violation

For 7th A need a casecontroversy (legitimate dispute) Constitutional role of fact-finder is not required

o Ct will only look at all evidence from both sides amp ask ldquois there a substantial conflict in evidence

Need a substantial amnt not a scintillao 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 amp substance issues

Can motion multiple timeso 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 wonrsquot reach verdicts

that canrsquot be sustained by the evidence Screen jury to elimination jurors who will likely

reach irrational verdicts (bc of sympathies or dimness)

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 juryo Prerequisite a motion for a directed verdict

Donrsquot move for a DV canrsquot move for a JNOV Purpose of Prerequisite

Preserves sufficiency of the evidence as a question of law

Calls the court amp partyrsquos 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 scripto Judges should not let cases go to jury without a sufficient amount of

evidenceo JNOVrsquos almost always result in an appeal

Only motion denied that can be immediately appealedo Little authority for the standard for reviewing a trial judgersquos JNOVo Credibility issues are always for the jury (Judge shouldnrsquot be 13th

juror)- New Trial

o Granting JNOV = wrong winnero New trial = a start-over not a declaration of who should have wono 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

22

Judgment as a Matter of Law- Directed verdict (R 50a)

before jury- JNOV (R 50b) after jury

Verdict Problem Bad instructions given or jury didnrsquot understand

instructions ldquoJNOV literdquo Judge doesnrsquot want to direct a verdict so will try it

again Judge will rule on new trial amp JNOV motion

together (R 59d)o No interlocutory appeals for new trials in federal ct

VIII Respect for Judgments

- Procedural rules serve 2 purposeso Air disputes completely and reach and accurate amp just outcomeo Seek to end disputes even if outcome is less than desirable

- Finality statutes of limitation claim preclusion amp issue preclusion- Claim preclusion forbids a party from relitigating a claim that should have

been raised in former litigationo Claim preclusion = ldquores judicatardquoo Goals efficiency finality consistent results

- Issue preclusion when some issue involved in that claim has been previously litigatedo Issue preclusion = ldquocollateral estoppelrdquo

A Claim Preclusion Res judicata Same claim amp same parties 4 prerequisites needed

- Claim in 2nd action must be same claim that was litigated in the 1st action- Parties must be the same- Judgment rendered in 1st action must be final- Judgment must have been rendered on the merits of the case

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 para litigated a subset of all available

disputes between the parties in the 1st suit

- Restatement Test of what is a claimo When a valid and final judgment rendered in an action extinguishes a

paralsquos claim the claim extinguished all right of the para to remedies against the with respect 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 ldquotransactionrdquo and what groupings constitute a ldquoseriesrdquo 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 partiesrsquo expectations or business understanding or usage

Between the Same Parties- Claim preclusion only works between those who were the parties to both the

1st amp 2nd lawsuits

23

Note claims that could not be joined will not be barred by claim preclusion

Interrelated by same transaction or series of transactions

2 Constitutional Prerequisites 1- Notice 2- Actual parties must know that they are repping the interests of others

JNOV = R 50New trial = R 59

- Generally separate individuals are regarded as having separate claims- Several exceptions

o Privity an ongoing or contractual relationship (most important)o Substantive Legal relationship ex successive ownership of land with

easements 1 party sues to enforce the easement against the 2nd party amp wins 2nd party sells to 3rd party ndash 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 amp Claim Preclusiono Was the issue decided in the proper adjudication identical with the

issue presented in the action in questiono Was there a final judgmento Was the party against whom the plea is asserted a party or a person

in privity with a party in the prior adjudicationo Was the issue in the 1st case competently fully amp 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 ldquoOn the Meritsrdquo- Not all judgments receive preclusive effect- Cts may attach preclusive effect bc

o Ct actually considered and ruled on the merits of the caseo 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 effecto Full jury trial = Yes preclusive effecto Directed verdict = Yes preclusive effecto Summary Judgment = Yes preclusive effecto 12b6 = depends

Sup Ct has ruled that a dismissal 12b6 ruling is a judgment on the merits

But states have different rules amp 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 amp Compulsory Counterclaims

- Failure to bring a compulsory counterclaim precludes from bringing it againo 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 amp essential to prior judgment- Need an issue of fact or law that was actually litigated and determined by a

valid amp final judgment and the determination is essential to the judgment

24

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 amp 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 litigationo Evidence to the record = trial transcript jury instructions

Between Which Parties- The ldquoVictimrdquo of Preclusion

o Old common law mutuality was a requirement for both claim amp 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 amp 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 wifersquos victory

New rule husband can take advantage of issue preclusion to prevent RR re-litigating case bc RR already had a full amp fair opportunity to litigate

Victim bc if RR won in 1st case canrsquot take advantage bc husband was not a party in the 1st case

- The Precludero General rule where a para 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 para uses the prior determination like a sword

para tries to hold to prior outcome (where litigated amp lost) Good for paras can wait amp 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 para already lost suing another on same issue

o Remember 2 goals of issue preclusion Consistency of verdicts Efficiency

25

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

Can move for a directed verdict multiple timeso No 7th A violation

For 7th A need a casecontroversy (legitimate dispute) Constitutional role of fact-finder is not required

o Ct will only look at all evidence from both sides amp ask ldquois there a substantial conflict in evidence

Need a substantial amnt not a scintillao 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 amp substance issues

Can motion multiple timeso 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 wonrsquot reach verdicts

that canrsquot be sustained by the evidence Screen jury to elimination jurors who will likely

reach irrational verdicts (bc of sympathies or dimness)

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 juryo Prerequisite a motion for a directed verdict

Donrsquot move for a DV canrsquot move for a JNOV Purpose of Prerequisite

Preserves sufficiency of the evidence as a question of law

Calls the court amp partyrsquos 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 scripto Judges should not let cases go to jury without a sufficient amount of

evidenceo JNOVrsquos almost always result in an appeal

Only motion denied that can be immediately appealedo Little authority for the standard for reviewing a trial judgersquos JNOVo Credibility issues are always for the jury (Judge shouldnrsquot be 13th

juror)- New Trial

o Granting JNOV = wrong winnero New trial = a start-over not a declaration of who should have wono 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

22

Judgment as a Matter of Law- Directed verdict (R 50a)

before jury- JNOV (R 50b) after jury

Verdict Problem Bad instructions given or jury didnrsquot understand

instructions ldquoJNOV literdquo Judge doesnrsquot want to direct a verdict so will try it

again Judge will rule on new trial amp JNOV motion

together (R 59d)o No interlocutory appeals for new trials in federal ct

VIII Respect for Judgments

- Procedural rules serve 2 purposeso Air disputes completely and reach and accurate amp just outcomeo Seek to end disputes even if outcome is less than desirable

- Finality statutes of limitation claim preclusion amp issue preclusion- Claim preclusion forbids a party from relitigating a claim that should have

been raised in former litigationo Claim preclusion = ldquores judicatardquoo Goals efficiency finality consistent results

- Issue preclusion when some issue involved in that claim has been previously litigatedo Issue preclusion = ldquocollateral estoppelrdquo

A Claim Preclusion Res judicata Same claim amp same parties 4 prerequisites needed

- Claim in 2nd action must be same claim that was litigated in the 1st action- Parties must be the same- Judgment rendered in 1st action must be final- Judgment must have been rendered on the merits of the case

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 para litigated a subset of all available

disputes between the parties in the 1st suit

- Restatement Test of what is a claimo When a valid and final judgment rendered in an action extinguishes a

paralsquos claim the claim extinguished all right of the para to remedies against the with respect 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 ldquotransactionrdquo and what groupings constitute a ldquoseriesrdquo 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 partiesrsquo expectations or business understanding or usage

Between the Same Parties- Claim preclusion only works between those who were the parties to both the

1st amp 2nd lawsuits

23

Note claims that could not be joined will not be barred by claim preclusion

Interrelated by same transaction or series of transactions

2 Constitutional Prerequisites 1- Notice 2- Actual parties must know that they are repping the interests of others

JNOV = R 50New trial = R 59

- Generally separate individuals are regarded as having separate claims- Several exceptions

o Privity an ongoing or contractual relationship (most important)o Substantive Legal relationship ex successive ownership of land with

easements 1 party sues to enforce the easement against the 2nd party amp wins 2nd party sells to 3rd party ndash 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 amp Claim Preclusiono Was the issue decided in the proper adjudication identical with the

issue presented in the action in questiono Was there a final judgmento Was the party against whom the plea is asserted a party or a person

in privity with a party in the prior adjudicationo Was the issue in the 1st case competently fully amp 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 ldquoOn the Meritsrdquo- Not all judgments receive preclusive effect- Cts may attach preclusive effect bc

o Ct actually considered and ruled on the merits of the caseo 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 effecto Full jury trial = Yes preclusive effecto Directed verdict = Yes preclusive effecto Summary Judgment = Yes preclusive effecto 12b6 = depends

Sup Ct has ruled that a dismissal 12b6 ruling is a judgment on the merits

But states have different rules amp 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 amp Compulsory Counterclaims

- Failure to bring a compulsory counterclaim precludes from bringing it againo 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 amp essential to prior judgment- Need an issue of fact or law that was actually litigated and determined by a

valid amp final judgment and the determination is essential to the judgment

24

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 amp 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 litigationo Evidence to the record = trial transcript jury instructions

Between Which Parties- The ldquoVictimrdquo of Preclusion

o Old common law mutuality was a requirement for both claim amp 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 amp 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 wifersquos victory

New rule husband can take advantage of issue preclusion to prevent RR re-litigating case bc RR already had a full amp fair opportunity to litigate

Victim bc if RR won in 1st case canrsquot take advantage bc husband was not a party in the 1st case

- The Precludero General rule where a para 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 para uses the prior determination like a sword

para tries to hold to prior outcome (where litigated amp lost) Good for paras can wait amp 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 para already lost suing another on same issue

o Remember 2 goals of issue preclusion Consistency of verdicts Efficiency

25

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

Verdict Problem Bad instructions given or jury didnrsquot understand

instructions ldquoJNOV literdquo Judge doesnrsquot want to direct a verdict so will try it

again Judge will rule on new trial amp JNOV motion

together (R 59d)o No interlocutory appeals for new trials in federal ct

VIII Respect for Judgments

- Procedural rules serve 2 purposeso Air disputes completely and reach and accurate amp just outcomeo Seek to end disputes even if outcome is less than desirable

- Finality statutes of limitation claim preclusion amp issue preclusion- Claim preclusion forbids a party from relitigating a claim that should have

been raised in former litigationo Claim preclusion = ldquores judicatardquoo Goals efficiency finality consistent results

- Issue preclusion when some issue involved in that claim has been previously litigatedo Issue preclusion = ldquocollateral estoppelrdquo

A Claim Preclusion Res judicata Same claim amp same parties 4 prerequisites needed

- Claim in 2nd action must be same claim that was litigated in the 1st action- Parties must be the same- Judgment rendered in 1st action must be final- Judgment must have been rendered on the merits of the case

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 para litigated a subset of all available

disputes between the parties in the 1st suit

- Restatement Test of what is a claimo When a valid and final judgment rendered in an action extinguishes a

paralsquos claim the claim extinguished all right of the para to remedies against the with respect 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 ldquotransactionrdquo and what groupings constitute a ldquoseriesrdquo 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 partiesrsquo expectations or business understanding or usage

Between the Same Parties- Claim preclusion only works between those who were the parties to both the

1st amp 2nd lawsuits

23

Note claims that could not be joined will not be barred by claim preclusion

Interrelated by same transaction or series of transactions

2 Constitutional Prerequisites 1- Notice 2- Actual parties must know that they are repping the interests of others

JNOV = R 50New trial = R 59

- Generally separate individuals are regarded as having separate claims- Several exceptions

o Privity an ongoing or contractual relationship (most important)o Substantive Legal relationship ex successive ownership of land with

easements 1 party sues to enforce the easement against the 2nd party amp wins 2nd party sells to 3rd party ndash 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 amp Claim Preclusiono Was the issue decided in the proper adjudication identical with the

issue presented in the action in questiono Was there a final judgmento Was the party against whom the plea is asserted a party or a person

in privity with a party in the prior adjudicationo Was the issue in the 1st case competently fully amp 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 ldquoOn the Meritsrdquo- Not all judgments receive preclusive effect- Cts may attach preclusive effect bc

o Ct actually considered and ruled on the merits of the caseo 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 effecto Full jury trial = Yes preclusive effecto Directed verdict = Yes preclusive effecto Summary Judgment = Yes preclusive effecto 12b6 = depends

Sup Ct has ruled that a dismissal 12b6 ruling is a judgment on the merits

But states have different rules amp 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 amp Compulsory Counterclaims

- Failure to bring a compulsory counterclaim precludes from bringing it againo 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 amp essential to prior judgment- Need an issue of fact or law that was actually litigated and determined by a

valid amp final judgment and the determination is essential to the judgment

24

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 amp 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 litigationo Evidence to the record = trial transcript jury instructions

Between Which Parties- The ldquoVictimrdquo of Preclusion

o Old common law mutuality was a requirement for both claim amp 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 amp 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 wifersquos victory

New rule husband can take advantage of issue preclusion to prevent RR re-litigating case bc RR already had a full amp fair opportunity to litigate

Victim bc if RR won in 1st case canrsquot take advantage bc husband was not a party in the 1st case

- The Precludero General rule where a para 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 para uses the prior determination like a sword

para tries to hold to prior outcome (where litigated amp lost) Good for paras can wait amp 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 para already lost suing another on same issue

o Remember 2 goals of issue preclusion Consistency of verdicts Efficiency

25

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

- Generally separate individuals are regarded as having separate claims- Several exceptions

o Privity an ongoing or contractual relationship (most important)o Substantive Legal relationship ex successive ownership of land with

easements 1 party sues to enforce the easement against the 2nd party amp wins 2nd party sells to 3rd party ndash 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 amp Claim Preclusiono Was the issue decided in the proper adjudication identical with the

issue presented in the action in questiono Was there a final judgmento Was the party against whom the plea is asserted a party or a person

in privity with a party in the prior adjudicationo Was the issue in the 1st case competently fully amp 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 ldquoOn the Meritsrdquo- Not all judgments receive preclusive effect- Cts may attach preclusive effect bc

o Ct actually considered and ruled on the merits of the caseo 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 effecto Full jury trial = Yes preclusive effecto Directed verdict = Yes preclusive effecto Summary Judgment = Yes preclusive effecto 12b6 = depends

Sup Ct has ruled that a dismissal 12b6 ruling is a judgment on the merits

But states have different rules amp 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 amp Compulsory Counterclaims

- Failure to bring a compulsory counterclaim precludes from bringing it againo 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 amp essential to prior judgment- Need an issue of fact or law that was actually litigated and determined by a

valid amp final judgment and the determination is essential to the judgment

24

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 amp 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 litigationo Evidence to the record = trial transcript jury instructions

Between Which Parties- The ldquoVictimrdquo of Preclusion

o Old common law mutuality was a requirement for both claim amp 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 amp 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 wifersquos victory

New rule husband can take advantage of issue preclusion to prevent RR re-litigating case bc RR already had a full amp fair opportunity to litigate

Victim bc if RR won in 1st case canrsquot take advantage bc husband was not a party in the 1st case

- The Precludero General rule where a para 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 para uses the prior determination like a sword

para tries to hold to prior outcome (where litigated amp lost) Good for paras can wait amp 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 para already lost suing another on same issue

o Remember 2 goals of issue preclusion Consistency of verdicts Efficiency

25

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

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 amp 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 litigationo Evidence to the record = trial transcript jury instructions

Between Which Parties- The ldquoVictimrdquo of Preclusion

o Old common law mutuality was a requirement for both claim amp 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 amp 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 wifersquos victory

New rule husband can take advantage of issue preclusion to prevent RR re-litigating case bc RR already had a full amp fair opportunity to litigate

Victim bc if RR won in 1st case canrsquot take advantage bc husband was not a party in the 1st case

- The Precludero General rule where a para 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 para uses the prior determination like a sword

para tries to hold to prior outcome (where litigated amp lost) Good for paras can wait amp 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 para already lost suing another on same issue

o Remember 2 goals of issue preclusion Consistency of verdicts Efficiency

25

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

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 amp gov agencies will recognize amp enforce Jurisdiction amp Constitution

- Personal Jurisdiction a courtrsquos 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 jurisdictiono Article 3 Establishment of courts

Section 2 sets limits for federal judicial authorityo Article 4 section 1 Full Faith amp Credit Clause

Requires each state to recognize amp 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 wout 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 courtrsquos power over a thing (not over a person)

- Only jurisdiction over the propertyo Ct may have in rem if property is within the territory of stateo Ex ldquoquiet title actionrdquo 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 - para will attach property that owns that is in state and if successful will only

get the value of that propertyo Ct seizes property and if it finds for para can give it to para or sell it and

give money to parao Not really about the property but ct just uses property bc it has

jurisdiction over the property and not over the persono Constructive notice is ok for quasi-in rem

A The Origins Pennoyer v Neff

- Basic

26

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

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 didnrsquot show up for court (default judgment) After judgment Neff bought 300 acres As relief Mitchell got Neffrsquos 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 amp Neff when Mitchell contracted his labor to Neff-

he could have made Neff sign a waiver consenting to OR jurisdiction

o Neffrsquos problems No notice (only constructive notice ndash in newspaper)

Constructive notice is not ok for non-residents If it was ok then there would be ramant fraud and

oppression Didnrsquot have the property at the time Not convenient to go back to Oregon General unfairness

o Pennoyerrsquos basic Constitutional args (well-established) Every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory No state can exercise direct jurisdiction over

personsproperty outside its territoryo Scheme Power (in personam) Consent (none) Notice (constructive

or in-person)o State can not go outside of its territory to serve someone

Challenge amp Waiver- Collateral Attack a risky but simple way for s who are not subject to

personal jurisdictiono Do nothing decline to appear default judgment entered then attack

judgment when para 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 canrsquot 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 amp right away

B The Modern Constitutional Formulation of Power- 3 themes in modern law of personal jurisdiction

o Powero Consento Notice

Redefining Constitutional Power- Problem with Pennoyer aftermath what to do with defendants who are

corporations

27

Pennoyer test for in personam jurisd

PresenceY jurisdictionN no jurisdiction

Continual presence is required

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

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 statersquos

jurisdiction for in personam jurisdiction by a substituted serviceo 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 stateo Test Due Process requires only that in order to have personal

jurisdiction (in personam jurisdiction) over a amp 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 ldquotraditional notions of fair play amp substantial justice

Casual andor continual presence in the state is not enough

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 consento Business canrsquot hide in one state will be held accountable wherever

they do businesso However no workable standard offered

General Jurisdiction claim doesnrsquot have to relate to a contact in state has so much contact (like domicile) that someone can bring any claim against them in that state

As long as there are sufficient contacts 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- Intrsquol Shoe left 2 jurisdiction questions open

o Did not discuss what to do with individualso Did not discuss in rem amp quasi in rem

- Quasi in rem was most expanded in Harris v Balko Treated debt like property Debtor represented lenderrsquos propertyo So whenever debtor went into a state that state could acquire in

rem jurisdiction over lenderso 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 contactso Contacts need to be at least minimal for a specific jurisdictiono Factors to consider

Solicitation The parties What type of business

o There is a limit though Really do need some contacts ties or relations

28

Minimum Contact Rule

Need to analyze contact amp claim to differentiate btwn general amp specific

Shaffer v Heitner pretty much squelched quasi in rem If you have the contacts just go with in personam

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

A law saying intangible property (eg stock) is deemed property within a state is not enough

Property holder must have some ties to forum state

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 amp has to have a specific tie to state

o Continuous amp substantial contact with forum state- Foreseeability has never been a sufficient benchmark for

o Foreseeability is not the mere likelihood that a product (sold amp 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 businesso For people the state of domicile

- If a is subjected to general jurisdiction then any claims against can be brought

- Qualification ct may use lsquoreasonable analysisrsquo for denying jurisdiction when there are contacts in forum state

Dismissal for lack of personal jurisdiction R 12 b 2 motion- para 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 ldquotraditional notions of fair play amp substantial justice

- Courts of a forum state have jurisdiction over non-residents who are physically present in the state

o No presence ldquoMinimum contactsrdquo o Presence = presenceo Any type of visit is presence and is purposeful availment of statersquos

benefits States benefits = fire ambulance roads etc

o Unfair results lay over at an airport is presence

29

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

C The Constitutional Requirement of Notice Pennoyer established a scheme Notice Consent amp Power

- In order to exercise jurisdiction over a a forum state must have eithero Power (minimum contacts at the least) or o Consent from (through pre-litigation agreement or from rsquos waiver

or failure to challenge jurisdiction at appearance)- Notice

o Traditional personal service of process was power amp noticeo 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

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 warningnoticeo Key must use lsquoreasonablersquo efforts to reach most people

- Personal service of summonscomplaint will always be constitutionally adequate

o Non-resident is less likely to have personal service- 2 guidelines for notice

o Time must give a reasonable time to respondo Content must reasonably convey info Must actually give some

minimum amnt of info- Process that is a mere gesture is not due process- Canrsquot 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 yrsolder (more expensive) File complaint Have 120 days to send Forms 1A amp 1B to if fail then ct

will dismiss complaint without prejudice para can ask for an extension (R 4m)

- R 4 Schemeo Personal jurisdiction over anyone whom the forum statersquos court would

have jurisdiction (R 4 ka)o Personal jurisdiction over someone joined under R 14 (3rd party by

either para or ) or R 19 (Joinder of persons needed for just adjudication)o Personal Jurisdiction over anyone in the country when a statute says

thatrsquos possibleo Personal jurisdiction over foreign defendants who donrsquot have

minimum contacts with any one forum but who have minimum contacts when aggregated over all the states

- International Businesso Hague convention allows perople to serve process on foreign s

D Venue Where within a given court system a case should be filed

30

Basic question so there is an assumption here that states canrsquot go out of their territory to serve notice

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

- A statutory createure- Generally where resides or the place where the claim arose

E Declining Jurisdiction transfer amp 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

- Discretion to the court to decline adjudication (ct has the authority to decide)

o In deciding FNC dismissal When para chooses a forum need a good reason to take it out

of the forum One good reason if the burden and

ldquooppressivenessrdquo to the defendant is out of proportion to the convenience of the para

OK reason but not that great is that the court has an overloaded docket

Ct must consider amp balance private interest factors with

public interest factors

Interests o

American para has priority over foreign para

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 wonrsquot 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 (sect 1404 1406 amp 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)

Private Interest Factors Public interest factorsRelative ease of access to sources of proof

Administrative difficulties flowing from court congestion

Availability of compulsory process for attendance of unwilling witnesses amp the cost of obtaining attendance of willing witnesses

The local interest in having localized controversies decided at home

Possibility of view of premises if view would be appropriate to the action

The interest in having the trial of adversity case in a form that is at home with the law that must govern the action

All other practical issues that make a case as easy expeditious and inexpensive

The avoidance of unnecessary problems in conflict of laws or in the application of foreign lawThe unfairness of burdening citizens in an unrelated forum with jury duty

31

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

o States have their own transfer system

- sect 1404 Change of venue- sect 1406 Cure or waiver of defect- sect 1631 Transfer to Cure Want of Jurisdiction

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 federalrsquos jurisdiction

Federal Cts are limited jurisdiction- Limited by Art 3 sect 2 of the Constitution

o Provision sets outerbounds for subject matter jurisdictiono Congress can enact statute that gives less jurisdictiono We have less subject matter jurisdiction than the Const allowso Congress has given federal cts exclusive jurisdiction over some

controversies (patent immigration)- R 8a reflects limited jurisdiction

o Short amp plain statement so that court can judge jurisdictiono Sorting to occur at beginning rather than end of trial

So not much is invested- Art 3 sect 1 Congress bestows on lower cts some but all of jurisdiction

o Most important are maritime amp diversityo 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 sect 1331) Under federal limited jurisdiction a case must arise under federal law

- Only when the paralsquos 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 para anticipates a defnse that has to do with fed laws or Constitution

- Statutory ldquoarising underrdquo is more narrow than Constitutionrsquos meaning When challenges subject matter jurisdiction 3 issues arise

- Is there a federal issue at all- Does paralsquos claim arise under fed law- If it isnrsquot a primary issue is fed law a dominating enough issue to make it a

federal caseo 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

32

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

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

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

meritso 12 b 6 failure to state a claim

Federal law doesnrsquot actually support para claim Judgment on the merits with preclusive effect

- No waiver can object to subject matter jurisdiction at any time

C Diversity Jurisdiction (USC sect 1332) Historical courts would be prejudiced against out of states sect 1332 amended to restrict diversity Rule Need to have diversity amp amount in controversy

- Amnt in Controversyo Only applies to diversity jurisdiction

Does not apply to federal question jurisdictiono para can add multiple claims against 1 to get to ldquoamnt in controversyrdquo

but canrsquot add different paras amnts to get to ldquoamnt in controversyrdquo

o Amount is statutory in nature changes every so often Now above $75000

Needs to be $7500001 or more- Diversity

o Citizens of different stateso Citizens of a state v citizens of a foreign stateo Citizens of different states v citizens of foreign stateo Foreign state as para v citizens of 1all different states

- Citizens of different stateso Canrsquot have parties from same states on either side of ldquovrdquoo For purposes of diversity jurisdiction resident aliens are considered

citizenso Need all citizens of 1 state on 1 side canrsquot mix it upo 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

ldquoHQrdquo Usually the place used

Where stuff gets done- Citizens of 1 state and citizenssubjects of a foreign state

o Residence and citizenship arenrsquot synonymouso Citizen = citizen of US and domiciled within the state in question

Domicile + intent to remain indefinitelyo Domicile = true fixed permanent home amp principle of establishment

amp to which she has intention of returning whenever she is absent from there

Everyone only has 1 domicile

33

Need to be diverse at time of filing

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

Changing domiciles requires Establishing physical presence in a new place of

domicile Subjective intent of making that new place my

domicile indefinitely Otherwise if both arenrsquot 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 stateo A citizen of a state can sue a foreign

- Foreign state as para 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

sect 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 paras ag persons made parties under intervention joinder permissive joinder or 3rd party bring-in by para or

- It is up to the discretion of the judge ndash judge may decline the supplemental o If the claim raises a novel or complex (complex difficult) issue of

state lawo If the state law claim dominates substantially over the claim that has

original jurisdictiono If district court has dismissed the federal claimso If for any exceptional circumstances

Case law from United Mine v Gibbs- Supplemental jurisdiction exists whenever there is a claim within the

constitutional jurisdiction amp the relationship between that claim amp 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 amp 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 canrsquot motion to move fed ct state ct- sect 1441 Removal state fed- sect 1446 Procedure for Removal

o Motion filed within 30 days after the receipt of service or summonso Must be a short amp plain statement of the grounds for removal with a

copies of the process pleadings and orders served upon

34

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

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- sect 1447 Procedure for Challenging Removal- Diversity canrsquot 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 considerationso 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

- sect 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 inequalityo 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 amp 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 amp outcomeso 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 amp 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 amp substantive law- Supreme Court has tried to mediate btwn 2 opposing principles

o Erie requires a deference to state courtso Federal courts are independent judicial system with autonomy

Interpreting the Constitutional Command of Erie- Guaranty Trust Co v York

o Erie shouldnrsquot be about procedural substantive law divideo The outcome should be the sameo Outcome-determinative Test

35Expansion

of Erie

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

A state rule that was outcome determinative should be followed no matter what it is labeled

o Sharply attacks the proposition that if something is not ldquoproceduralrdquo 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 outweigh the

outcome determinative testo In addition to outcome-determinative also look at 2 policy

considerations Rights Obligations

o Test Would it be outcome determinitive

Yes state law governs No either statefed is OK

Is the law bound up with the rights and obligations are there other considerations that call for federal law

Yes Apply fed law No Apply state law

o In Byrd found that SC state law was not bound up with the rights amp 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-determinativeo So look prospectively and see if it will lead to forum shopping or

litigant inequalityo 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 amp State Law Y Fed Const wins N No conflict presume in harmony- either

Is the conflict btwn fed statute amp state law Ask Did Congr have authority to enact stat

Y Fed statute wins N State law wins

Is the conflict btwn FRCP amp state law Ask Is FRCP valid (constit amp within REA canrsquot

enlargeabridge right) Y FRCP wins N state law wins

36

Ct is swinging back a little

If there is no conflict just apply state law

Use state law where ct is determining the rights amp obligations of parties

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

Is the conflict btwn fed judicial practice amp 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 amp 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 amp bc those rules are constitutional fed cts must follow them

- Burlington Northern v Woods amp Stewart v Richoh suggest that the Sup Ct would stretch far to find an applicable federal law covering the situation

- Limitso Gasperini v Center for Humanities sign of Sup Ct for accommodating

state law where both state amp 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 para 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 para 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 Californiarsquos 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 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 abridgeenlarge

any substantive right Bc ldquoon the meritsrdquo wasnrsquot 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

37

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

would give a similar conclusion from that statersquos state court

XIII Joinder

- Modern civ pro has 2 featureso Discovery deptho 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 amp subject matter jurisdiction

Remember supplemental jurisdiction sect 1367 common nucleus of operative fact

A Joinder of Claims Joinder of Claims by Plaintiff

- Common Lawo para could only join claims using the same writ but could join some

whether or not the claims were factually relatedo A mistake could lead to a demurrer or upsetting the verdict

- Federal Ruleso Rule 18 permits joinder but does not compel it

No compulsory joinder A single para can join any and all claims (related or unrelated)

against the o R 42b a judge can sever claims for trial convenience

- Joinder amp Jurisdictiono para can join all claims against o Potential problem jurisdiction Ct may lack subject matter

jurisdiction sect 1367 Supplemental jurisdiction grants jurisd on 3

variables The basis of the original jurisdiction over the case The identity of the party (para or ) seeking to invoke

supplemental jurisd The Rule authorizing the joinder of the partyclaim

over whom supplemental jurisdiction is sought Joinder of Counter-Claims by Defendant

- might have claims against para (ldquoNow that you mention it I have gripes toordquo)

- Common law could not join counterclaims- 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 assertedo Permissive

38

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

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 wonrsquot be able to join it bc if

it were same facts then would be compulsory anywayB Joinder of Parties

Joinder of Parties by Plaintiff- Rule 20a all persons may join in 1 action as paras if they assert any right to

relief jointly severally or that they have claims rising out of the same transaction

- R 20b amp R 42b vest in the district judge the discretion to separate trials- Getting paras all together

o Joinder is good for paras bc easier to prove pattern of events similar events if all paras are in front of a jury instead of trying everything separately

Maybe not so good for para atty ndash gives up control

o Bad for s easier to attack each para story separately than doing it all together

- Getting all s togethero Good for para bc of issue preclusion

If lose on 1st one may lose amp 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 15 is guilty so award para and let s figure it out

- Permissive Joinder must have 2 prerequisiteso Same transaction or occurrence series of transactions amp 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 partyrsquos liability is in some way dependent upon the outcome of the original action

o Limit must in some way be derivative of original claimo Join 3rd party only when the original is trying to pass all or some of

the liability onto the 3rd party- Derivitive Liability ldquoIf I lose you payrdquo

o Indemnity Permissive Counter-claim More efficient administratively to have claims in 1 suit Minimizes possibility of inconsistent judgments Donrsquot 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- para may assert any claim against the 3rd party arising out of the same

transaction or occurrence that is the subject matter of the paralsquos claim against the 3rd party para (the original )

o paras donrsquot like when s bring in 3rd party bc makes case more costly more slow less control

- para may challenge 3rd party

39

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40

o Did original deliberately delayo Would impleading (bringing a new party into law suit) unduly delay or

complicate trialo Would impleading prejudice the 3rd party (unfair ndash not enough time

etc)o Whether original state a claim upon which relief can be granted (if

not then prob wonrsquot be able to implead)

- Always remember jurisdiction (personal amp subject matter)o Remember 100 mi bulge rule (R 4k1B)

Gives an extra 100 mi to courtrsquos jurisdiction Ask where fed ct house is and draw a 100mi radius

circle was served within 100 mi of that court houseo Fed subject matter gets a similar boost from sect 1367 supplemental

jurisdiction shall include claims that involve the joinder or intervention of addtrsquol parties

Joinder by the Rules- Joinder of Claims = 18 (a) para may join as many claims as she has against the

- Joinder of Parties = 20 (a) para 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 paras 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 partyrsquos claim

- Joinder of Cross-claims = 13 (g) = joinder of claims against a co-party ( ag or para ag para) For the same transaction that is the subject matter of the original action or of a counter claim

40