Civil Procedure Outline

Taja-Nia Henderson
Analyzing Civil Procedure Questions
1) Personal jurisdiction: Is there personal jurisdiction
a. Minimum Contacts
b. Notice and opportunity to be heard
2) Venue: Was venue correct? 28 USC 1391
a. District where D resides
b. District where substantial parts of events giving rise to the claim
occurred
3) Subject Matter Jurisdiction: If its a federal case, does the court have SMJ?
a. Diversity
b. Federal Question
4) Pleading: Are the pleadings proper?
5) Discovery:
6) Choice of law: What jurisdictions law applies to the case?
7) Joinder
a. Types of Joinder:
i. Counterclaim
ii. Joinder of claims
iii. Joinder of parties
iv. Intervention
v. Interpleader
vi. Impleader
vii. Cross-claims
viii. Class actions
b. Jurisdiction: See if the PJ or SMJ is satisfied
i. Supplemental jurisdiction: If supplemental jurisdiction applies,
you dont need to meet SMJ
8) Former adjudication: Are the results of some prior litigation binding in the
current suit

Introduction to Civil Procedure

1) Courts Power:
a. Preliminary and Temporary Injunctions: A court of equity has the
power to issue an order to preserve the status quo in order to protect
its ability to render judgment in a case over which it might have
jurisdiction
i. In rem: Federal courts may issue injunctions binding on persons
who come into contact with property which is the subject of a
judicial decree.
ii. Third party prohibition: A party or non-party cannot prevent the
court to enforce its own judgment

iii. Threatened Rights of Prior Litigations: If activities of an

individual threaten the rights of previous litigants adjudicated
from a past decision, the courts can issue a preliminary
injunction to protect their judgments
b. Contempt: Courts have jurisdiction to punish for contempt in order to
protect their ability to render judgment.
c. FRCP 65(d) Forms and Scope of Injunction: Limits the binding
effect of injunctive orders to parties to the action, their agents and
attorneys and those persons in active concert or participation with
them who receive actual notice of the order by personal service or
otherwise
i. Requirements: Every order granting an injunction and every
restraining order shall set forth the
1. Reasons: reasons for its issuance;
2. Specific and Reasonable Detail: shall be specific in
terms; shall describe in reasonable detail, and not by
reference to the complaint or other document, the act or
acts sought to be restrained; and
3. Persons Binding: is binding only upon the parties to the
action, their officers, agents, servants, employees, and
attorneys, and upon those persons in active concert or
participation with them who receive actual notice of the
order by personal service or otherwise.
ii. Non-parties: A decree of injunction also binds parties identified
with the defendant parties in interest, in privity with them,
represented by them or subject to their control
2) US v Hall: Federal district court issued an interim ex parte order restraining
unauthorized persons from entering school grounds and the court served
notice on a non-party but the non-party entered the grounds for the purpose
of violating the order
a. Rationale:
i. Rule 65d: It was meant to embody the courts powers and not
limit it
ii. Threat of the court: The activities of people contributing to racial
disorder imperiled the courts power to make binding
adjudication to the parties in the underlying desegregation suit
iii. Segregation orders: Excite community passions and, like in rem
orders, are vulnerable to disruption by an indefinable class of
persons who are neither parties nor acting at the instigation of
the parties
iv. In rem: A court entering a decree binding on a particular piece of
property is faced with danger that judgment may be disrupted in
the future by members of an undefinable class who may come
into contact with the property
b. Notes:

i. Ex Parte: A proceeding commenced by one party without

providing an opposing party with notice or that is uncontested
by an adverse party
ii. Jurisdiction: Power to decide a case and issue continuing orders
of the case
iii. 5th circuit Decision
3) United States Code: Rule Making Power
a. 28 USC 2071: Rule Making Power Generally
i. Power to Make Rules: SCOTUS and all inferior federal courts can
prescribe rules of conduct consistent with 28 USC 2072
1. District courts: District courts can only make rules under
this section
ii. Notice and Opportunity for Comment Requirement: Any rule
prescribed by a court, other than SCOTUS must give appropriate
public notice and opportunity for comment
1. Exception: If the court determines immediate need for a
rule it does not need to provide this, but must afford it
after
iii. Date and Pending Proceedings: The rule takes place on the date
specified and has an effect on all pending proceedings
iv. Modifications of Rules:
1. District court rules: It remains in effect unless modified or
abrogated by the judicial council of their circuit
2. Other Rules other than SCOTUS: It remains in effect
unless modified or abrogated by the Judicial Conference
v. Copy Disclosure: Copies of all rules other than SCOTUS shall be
furnished to the Director of the Administrative Office of the US
and made available to the public
b. 28 USC 2072: Rules of Procedure and Evidence; Power to
Prescribe
i. Power to Prescribe: The Supreme Court shall have the power to
prescribe general rules of practice and procedure and rules of
evidence for cases in the United States district courts (including
proceedings before magistrates thereof) and courts of appeals.
ii. No Abridgement, Enlargement or Modification: Such rules shall
not abridge, enlarge or modify any substantive right.
iii. Conflicts with other laws: All laws in conflict with such rules shall
be of no further force or effect after such rules have taken
effect.
iv. Finality: Such rules may define when a ruling of a district court is
final for the purposes of appeal under section 1291
c. 28 USC 2073: Method of Prescribing
i. Judicial Conference Duties: shall prescribe and publish the
procedures for the consideration of proposed rules under this
section.

ii. Appointment of Assistant Committees: The Judicial Conference

may authorize the appointment of committees to assist the
Conference by recommending rules to be prescribed under
sections 2072 and 2075
1. Committee Members: Each such committee shall consist
of members of the bench and the professional bar, and
trial and appellate judges.
iii. Appointment of Standing Committees: The Judicial Conference
shall authorize the appointment of a standing committee on
rules of practice, procedure, and evidence under subsection (a)
1. Standing Committee Duties: standing committee shall
a. Review: Review each recommendation of any other
committees so appointed and
b. Recommendations: recommend to the Judicial
Conference rules of practice, procedure, and
evidence and such changes in rules proposed by a
committee appointed under subsection (a)(2) of
this section
c. General welfare: These duties are done as may be
necessary to maintain consistency and otherwise
promote the interest of justice.
iv. Meetings Generally Open to the Public: Each meeting for the
transaction of business under this chapter by any committee
appointed under this section shall be open to the public
1. Exception for Closed Meeting: The meeting does not have
to be open if, in open session and with majority present
a. Public interest: Determines its in the public interest
that all or part of the remainder of the meeting on
that day shall be closed
b. Reason: And if it states the reason for the closing
2. Time Records: Minutes of each meeting for the transaction
of business under this chapter shall be maintained by the
committee and made available to the public
a. Exception for Deletions in Closed Meetings:
Minutes can be withheld from the public if they
include any portion of such minutes, relating to a
closed meeting and made available to the public,
may contain such deletions as may be necessary to
avoid frustrating the purposes of closing the
meeting.
v. Required Disclosures: In making a recommendation under 2072
or 2075, the body making it must disclose three materials
1. Proposed Rule
2. Explanatory Note on the Rule
3. Written Report Explaining the Bodys Action; Including any
minority or separate views
4

vi. Failure to Comply: Failure to comply with this section does not
invalidate the rule under 2072 or 2075
d. 28 USC 2074: Submission to Congress and Effective Date
i. Date to Submit to Congress: The Supreme Court shall transmit
to the Congress not later than May 1 of the year in which a rule
prescribed under section 2072 is to become effective a copy of
the proposed rule
ii. Date Rule is Effective: Such rule shall take effect no earlier than
December 1 of the year in which such rule is so transmitted
unless otherwise provided by law.
iii. Effect on Pending Proceedings: The Supreme Court may fix the
extent such rule shall apply to proceedings then pending
1. Exception: Supreme Court shall not require the application
of such rule to further proceedings then pending to the
extent that, in the opinion of the court in which such
proceedings are pending, the application of such rule in
such proceedings would not be feasible or would work
injustice, in which event the former rule applies.
iv. Evidentiary Privilege Creation, Deletion or Modification: Any such
rule creating, abolishing, or modifying an evidentiary privilege
shall have no force or effect unless approved by Act of Congress.

Due Process
1) Due Process Clause: The Due Process Clauses of the 5th and 14th
Amendments prohibit the federal government and the states from depriving a
person of life, liberty or property without due process of law
a. Affording Due Process: Due Process is afforded wherever someone
is condemned to suffer grievous loss
b. Basic minimal requirements of Due Process:
i. Cross-examine witnesses: Must be able to confront and crossexamine witnesses
ii. Access to counsel: Must have access to counsel
iii. Oral presentation: Must have ability to present orally
iv. Impartial decision-maker: Access to impartial decision maker
v. Grounds for termination: The city must provide the grounds for
the termination and record for any evidence that supports those
findings
vi. Notice and Opportunity to Prepare: An opportunity for notice and
an opportunity to prepare for the case
2) Procedural Due Process: A procedural due process claim assumes that the
law is otherwise valid but asserts that the manner employed in enforcing or
applying it is unfair

a. Government action: Procedural due process comes into play only when
the government acts in an adjudicatory capacity, such as applying the
rule or policy to specific individuals
3) Importance of Due process
a. Expedited and fair trial
b. Confrontation right
c. Right to present a defense
d. Right to an attorney
e. Right to call witnesses
f. Discovery
g. Right to an appeal: Things that can be appealed include final
judgments and certain interlocutory orders
h. Written basis for discovery
i. Court reporter
j. Equal access to resources
k. Right to a jury
l. Sufficient notice of the case
m. No civil jeopardy
n. Impartial third party
4) Opportunity to be Heard and Notice: Procedural due process requires
that before the state may impair an individuals due process rights, it must
give him or her notice and a reasonable opportunity to be heard
a. Evidentiary Hearing for Benefits: The type of hearing required
depends on both timing and formality.
i. Timing and Formality:
1. Timing: The court must decide whether an opportunity to
be heard be afforded before deprivation occurs or if postdeprivation hearings suffice
2. Formality: The court must determine how formal or
informal the hearing may be
ii. Matthews v Eldridge Test: To determine when a hearing must
occur and how elaborate the hearing must be, the Court often
uses a balancing test that takes account of three factors
1. Private interests: The significance of the private interest
that will be affected by the governmental action
2. Risk of erroneous deprivation: The extent to which the risk
of erroneous deprivation of such interests through the
procedures used and the probable value of additional or
substitute procedural safeguards
3. Governmental Interest: The governments interest,
including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail
a. Financial cost: Financial cost alone is not controlling
weight
iii. Existing Procedures: A factor to be considered in determining
whether they comport with due process is the fairness and

reliability of the existing procedures and probable value of

additional safeguards
b. Pre-termination of Benefits
i. Termination of Welfare Benefits: When welfare benefits are
involved, the 14th amendment requires recipients to be afforded
an evidentiary hearing prior to termination of benefits.
1. Minimum procedural safeguards: The only thing
necessary at the pre-termination stage are minimum
procedural safeguards and at the very least, the person
must have an opportunity to state his case orally to an
impartial decision-maker
a. Fair Hearing: A fair hearing is sufficient for an
evidentiary hearing because it will provide the
recipient full administrative review.
2. Not Necessary at pre-termination stage
a. Judicial or quasi-judicial trial
b. Complete record and opinion
ii. Disability Benefits: The Due Process Clause of the 5th
amendment does not require that the recipient be afforded an
opportunity for an evidentiary hearing prior to termination of
Social Security disability benefit payments
1. Establishing continued entitlement of disability benefits:
The worker must demonstrate that he is unable to engage
in any substantial gainful activity by reason of any
medically determinable physical or mental impairment
that can result in death or which has lasted or can be
expected to last for 12 months or more
c. Labeling and Designations:
i. Socialist or Fascist: An opportunity to be heard must be given
before the government labels an individual as a socialist
ii. Designation and Detention of Enemy Combatant: Due
Process requires that a US Citizen being held an enemy
combatant be given meaningful opportunity to contest the
factual basis for his detention
1. Meaningful opportunity requirements:
a. Notice of basis: Notice of the factual basis for the
combatant classification and
b. Opportunity for rebuttal: A fair opportunity to rebut
the governments factual assertions before a
neutral decision maker
2. Balancing Test for Government Power: The court
must weigh the
a. Governmental interests in confining enemy
combatants and
b. The individual liberty rights of the detainee

3. Proceeding requirements: Its not necessary to have

initial due process hearings for captures but those
detained further needs further proceedings
5) Cases:
a. Goldberg v Kelly: NY Welfare recipients sued NYS since they
terminated aid without prior notice but there was no requirement of
prior notice or hearing before termination of aid
i. Rationale:
1. Importance of Welfare: Welfare provides minimum
subsistence and termination of aid pending a hearing
deprives eligible recipients a means to live because it
provides food, clothing, house and medical care
2. Desperate situation: The situation becomes immediately
desperate because there are no other independent
resources and so they must concentrate on finding daily
subsistence instead of seeking redress from the welfare
bureaucracy
3. 14th amendment: Applies
ii. Notes:
1. Evidentiary hearing: A hearing pertaining to the evidence
of the case
2. Quasi-judicial: Function of administrative officers to hear
and determine matters
b. Matthews v Eldridge: State agency, after receiving medical reports,
told the challenger that his disability ceased and told him he could
request extra time but he sued instead challenging the administrative
procedures that assess whether there is a continuing disability and
wanted a pre-termination hearing
i. Rationale:
1. Difference from welfare: A disabled workers need for
uninterrupted payments is less than a welfare recipient
since there is a possibility of access to other resources.
a. Alternate forms of assistance: Other forms of
government assistance are available
b. Procedures exist: The existing pre-termination
procedures are fair and comparatively reliable
c. Condition: Finding someones medical condition is
less ambiguous than finding someones financial
need
2. 5th amendment applies
ii. Notes:
1. Evidentiary Hearing: Hearing pertaining to the evidence of
the case
2. Pre-termination Hearing: A hearing held prior to the
termination of a property interest

c. Hamdi v Rumsfeld: US Citizen in Afghanistan was captured and

classified as an enemy combatant and held indefinitely without formal
charges or proceedings
i. Rationale:
1. No concessions abdicating rights: The challenger did not
make any concessions abdicating his rights to a further
hearing
ii. Notes:
1. Habeas Corpus: A proceeding in which a D brings a writ to
compel a judicial determination of whether he is lawfully
being held in custody
6) Access to the Courts
a. Judicial Dissolution of Marriage: Due process prohibits a state from
denying, solely because of inability to pay, access to its courts to
individuals who seek judicial dissolution of their marriage
i. Inability to pay: Is not a sufficient reason to prohibit access to
the courts
ii. Meaningful opportunity to be heard: If the interest is of
basic importance to American society, it must be given
meaningful opportunity to be heard
7) Access to a Lawyer: 6th amendment right to counsel
a. Termination of Parental Rights: There is no constitutional right to
appoint counsel , unless the indigent litigant, if he loses, may be
deprived of his physical liberty
i. Criminal Cases: There is only a right to counsel in criminal cases
but not civil cases
b. Civil Contempt Proceedings for Child Support: The Due Process
Clause does not automatically require the provision of counsel at civil
contempt proceedings to an indigent individual who is subject to a
child support order
i. Additional Safeguards: A state must provide additional
safeguards to reduce the risk of erroneous deprivation of liberty
in civil contempt cases
ii. Risks of erroneous deprivation and countervailing interests:
Three considerations
1. Ability to pay prior to incarceration: It can be determined
by measures that dont require counsel and it can lower
risk of deprivation
2. Civil contempt hearing: Primarily for the benefit of the
custodial parent who was unrepresented by counsel and
providing the challenger counsel may make the
proceedings unfair or delay the proceedings
3. Available procedural safeguards: That could reduce the
erroneous deprivation
a. Notice to the challenger that his ability to pay is
critical

b. Use of a form: To uncover relevant financial

information
c. Opportunity to be heard to respond to statements
and questions about his financial status
d. Express finding by the court: That the challenger
has an ability to pay
8) Cases
a. Boddie v Connecticut: Indigent married couples sued the state in a
class action challenging state procedures requiring access to the
courts, including requirements for the payment of court fees and
service of process
i. Rationale:
1. Balancing marriage and state monopolization: Based on
the position of marriage in societys values and the state
monopolization of the means for dissolving marriage,
access to courts cant be prohibited based on inability to
pay
2. Limited holding: The court emphasized it went no further
than necessary to dispose of the case before it and it
didnt decide all access for individuals is guaranteed
ii. Notes:
1. Indigent: A person who is poor and is unable to obtain
counsel to defend himself in a criminal proceeding and for
whom counsel must be appointed
b. Lassiter v Department of Social Services of Durham County,
North Carolina: Challenger lost custody of her son due to neglect and
inadequate medical care and was later charged for murder and
imprisoned. Social services sought to terminate her rights and she was
not represented by counsel but did not say she was indigent.
i. Rationale:
1. Outweighing of private interest: While the parent had a
high private interest in maintaining the parental rights,
the two other interests outweighed
2. Adequate Procedure and Paramount Government Interest:
The procedure by which rights were terminated were
found to be adequate and the governmental interest in
protecting the child was paramount
c. Turner v Rogers: Child support law threatens people who are subject
to child support that is able to file orders but fail to do so incarceration
for civil contempt. The challenger was not asked whether he was able
to pay child support and the challenger argued that the 6 th amendment
guaranteed him right to counsel in civil contempt hearings
i. Rationale:
1. 6th amendments right to counsel: Only applies to criminal
proceedings and not civil proceedings because the point

10

is not punishment but coercion to comply with court

orders
2. Civil contempt: 14th amendment allows a state to provide
fewer procedural safeguards than in criminal matters
3. Private interest at stake: The challengers liberty
4. Categorical right of counsel: A categorical right of counsel
has disadvantages that would deprive it of significant
superiority over the other alternatives
ii. Notes:
1. Right to counsel: It is a right conferred by the 6 th
amendment that the accused shall be provided effective
legal assistance in a criminal proceeding
2. Sixth Amendment: Provides the right to a speedy and
public trial by an impartial jury, the right to be informed of
the accusation, the right to confront witnesses and the
right to have the assistance of counsel in all criminal
prosecutions
3. Civil Contempt Cases: The due process clause allows a
state to provide fewer procedural safeguards than in
criminal matters since the 6th amendment right applies to
criminal contempt proceedings and not civil ones

Civil Litigation
Pleadings Introduction
1) Introduction
a. Filing a Complaint:
i. Filing a complaint: The plaintiff begins a civil action by filing in
a court of appropriate jurisdiction a complaint seeking some sort
of judicial relief against specified defendants.
ii. Summons: The court thereupon issues its process (summons)
directing the named defendants to appear
iii. Appearance of the defendant: The defendant appears by
filing some sort of response (answer, motion, demurrer) after
which other pleadings and motions may be filed until the case is
at issue
b. Purpose of Pleadings:
i. Pleadings: Filings submitted by parties to present their cases
ii. Notice: To give notice of the general character of the controversy
between the parties
iii. Narrow issues: Pleadings also narrow and formulate the issues
involved in the case
iv. Scope: The process also helps to determine the scope of the
action during discovery and at trial and defines the scope of any
judgment in the action.

11

2) Pleading Under the Federal Rules of Civil Procedure

a. The basic types of pleadings allowed: FRCP 7a
i. Plaintiff: Complaint and answer to counter-claim
ii. Defendant: Answer which may contain a counter-claim against
the plaintiff
iii. Demurrers: They are eliminated in federal courts and replaced
by FRCP 12b6 (motion to dismiss for failure to state a claim)
b. Requirements: The rules require a short and plain statement of the
claim showing the pleader is entitled to relief
i. Notice pleading: It is also called notice pleading, FRCP 8a2
c. FRCP: Rules 1-11 and Form 11
3) Order of a Trial
a. Opening Statements: Opening statements from both sides
b. Examinations: Plaintiffs lawyer introduces the case with direct
examination
i. Defendant can cross-examine
ii. Will bring evidence
c. Defendants Arguments: D goes
d. Objections: Either lawyer can raise objections but judges can apply the
rule of evidence and overrule the objections
e. Final judgment: Losing party can appeal from a final judgment
f. Interlocutory appeal: They are an appeal at the time of controversy
i. Granted if:
1. The question of law
2. Controlling question
3. Substantial grounds for difference of opinion
4. Immediate appeal materially advances the ultimate
termination of litigation

Complaints
1) Complaint: In most jurisdictions, a civil action is commenced by the filing of
the plaintiffs complaint (FRCP 8a)
a. Plaintiffs burden: Plaintiff has the burden to prove 8a
b. Commences action: The filing of the complaint is deemed to
commence the action. The date of the filing is what counts for statute
of limitation purposes in federal question suits
2) Form: The essential parts of the complaint are:
a. Caption: Rule 10a
i. Elements: A caption sets forth
1. Courts name: The name of the court
2. Number of Action: The number assigned to the action
(stamped by the clerk when action is filed)
3. Pleading designation: A designation of the pleading and
4. Partys names: The names of the parties
ii. Effect of errors: Pleadings must be construed so as to do
justice Courts will disregard errors in the form or caption of the
complaint that do not mislead the party- Rule 8e

12

1. Additional error in the summons: If there is also an error in

the summons and as a result the intended defendant is
not adequately warned that he is being sued, the action
may be brought to dismissal for insufficient process
iii. John Doe Defendants: A litigant may use a fictitious name in
exceptional cases to protect privacy
1. Special and exceptional cases: Courts allow parties to
remain anonymous to protect their privacy in regard to
intimate matters
a. Intimate matters: Abortion, transexuality, mental
illness, and illegitimacy
2. Economic life: Courts should not permit a party to
proceed anonymously with a fictitious name simply to
protect the partys professional or economic life
3. Doe v US Life Insurance: The challenger, a life
insurance applicant, requested the court permit him to
initiate a lawsuit under a pseudonym based on fear that
he might be identified as a homosexual
a. Rationale:
i. Homosexuality: Cases in which a party risks
public identification raise privacy concerns
that support an exception to the general rule
of disclosure
ii. Right to Privacy: An individuals right to be
protected against unwarranted interference
in his personal affairs falling into one of four
categories:
1. Appropriation of likeness:
Appropriating the individuals likeness
or name for commercial benefit
2. Intrusion: Intrusion into the
individuals seclusion
3. Private individual facts: Public
disclosure of private facts
4. False light: Disclosure of facts placing
individual in false light
b. Notes:
i. Conflict: Publics interest in knowing
pertinent facts v right to privacy in regard to
intimacy matters
ii. Limitation:
iii. Diversity cases: The use of Doe Ds may not
be allowed in cases based on diversity
jurisdiction
b. Statement of Jurisdiction

13

i. FRCP 8a1: The complaint must contain allegations showing the

ground upon which the subject matter jurisdiction of the federal
court is invoked
1. Rationale: federal courts are courts of limited jurisdiction
so the complaint must be dismissed if the complaint fails
to set forth the jurisdictional grounds
c. Body
i. Statement of facts: The complaint must also contain a
statement of the facts upon which recovery is sought. (Rule 8a2A short and plain statement of the claim showing that the
pleader is entitled to relief)
ii. Separate causes of action: Each claim or cause of action
should be set forth in a separate group of serially numbered
paragraphs and each paragraph should be limited to a
statement of a single set of circumstances (Rule 10b)
iii. Direct Allegations: The allegations in the complaint should be
simple concise and direct (Rule 8d1)
1. Recitals: It is improper to allege essential facts only by
way of recitals
2. Exhibits: Essential allegations may appear in an exhibit
attached to the complaint if incorporated by reference
into the complaint (Rule 10c)
3. Consequences of defect: Noncompliance with these rules
of form is at most basis for a demurrer or motion
objecting to the defect. Modern day, it is usually
disregarded
iv. Allegations on information and belief:
1. Views:
a. Ordinarily: The plaintiffs allegations should be
based on personal knowledge
b. If the plaintiff lacks personal knowledge on some
element of his claim: Information and belief may
be sufficient under FRCP. In federal courts,
allegations can be made only after reasonable
inquiry and with a belief that the pleading is likely
to have evidentiary support (Rule 11)
2. Denials: A statement that D is without knowledge or
information sufficient to form a belief as to the truth of an
averment has the effect of a denial (Rule 8b5)
3. Importance: The use of allegations on information and
belief is important where a pleading is to be verified by a
party (where the pleading party includes an affidavit that
the pleading is true to the best of the pleaders
knowledge), since the plaintiff should not swear facts to
be true when he has no personal knowledge thereof

14

4. Limitation: Allegations on information and belief are

improper to matters which the pleader obviously knows or
has reason to know or matters as to which she has
constructive knowledge
a. Such cases: pleadings on information and belief will
be disregarded, leaving a complaint subject to a
motion to dismiss
v. Alternative and Inconsistent Allegations
1. Inconsistent legal theories: FRCP 11 may limit the
latitude of allegations of facts based on inconsistent legal
theories
2. Inconsistent Facts: A pleader is also permitted to plead
inconsistent versions of facts (Rule 8d3)
a. Reason: Some jurisdictions require that the facts
alleged indicate some reason why P could not know
which version was true
3. Alternative Defendants: The plaintiff can also plead
one version of the facts against one defendant and
another version against another defendant.
vi. Defenses need not be anticipated: Ordinarily, the plaintiff is
not required in the complaint to anticipate any defense that the
defendant may arise
1. Well pleaded complaint rule: The rule regarding
anticipating defenses corresponds to the well-pleaded
complaint rule for federal question subject matter
jurisdiction
2. Reply to affirmative defense: Although not automatically
required, a court may order a P to reply in an affirmative
defense in an answer. A reply may be appropriate when a
D asserts a defense of qualified immunity
d. Prayer for relief: A complaint must contain a statement of the relief
sought
i. In default cases: If the defendant defaults by failing to defend,
the relief granted cannot exceed what is prayed for in the
complaint or differ from it in kind (Rule 54c)
ii. Contested cases: P is not limited to the relief prayed for in the
complaint. The court may award any relief to which a party is
entitled under the pleadings and proof even if different from or
greater to one prayed- FRCP 54c
1. Trial tactic: When evidence at trial indicates that the
verdict may exceed any damages pleaded, P should seek
leave of court to amend the damage allegations and
prayer upward.
iii. Other functions of prayer: It is ordinarily determinative of the
amount in controversy for jurisdictional purposes

15

e. Subscription: The complaint must be signed by the attorney (or by

the party himself, where he is acting as his own counsel) (Rule 11)
i. Effect of signature: The signature constitutes a certification by
him that to the best of his knowledge, information and belief,
formed after reasonable inquiry, the evidentiary contentions
have evidentiary support or are likely to have such support after
discovery. It also certifies that the claims or defenses are
warranted by existing law or a good faith argument for change
in existing law and the claim or defense is not interposed
primarily for any improper purpose like harassment, delay or
increasing costs
1. Verification: A verification is an affidavit at the end of a
pleading which avers that the pleading is true to the best
of affiants knowledge, information or belief.
a. Affidavit: made by the party or by an attorney or if
another person with better knowledge of the facts
is willing to
b. Federal practice: Verification by a party is the
exception rather than the rule in federal courts.
FRCP 11 expressly provides that pleadings need not
be verified except where specifically required by
rule or statute
3) Pleading Specific Claims: The body of the complaint must contain
allegations showing that the P has a right to recover
a. In General: The elements of a particular cause of action involve both
a substantive and procedural aspect
i. Substance: Substantive law determines whether a specific
incident or transaction results in liability to P
ii. Procedure: The procedural aspect is one of allocation P must
allege enough particulars about the incident to constitute a
prima facie case. Other particulars may be relevant but will only
be considered if D states them in an affirmative defense
b. Federal pleading: This does not mean the elements of a cause of
action may be disregarded in notice pleading jurisdictions- 8A requires
the complaint show P has a right to relief and 2b authorizes a motion
to dismiss for failure to state a claim
i. But FRCP:
1. Allows less detail and specificity and
2. Omissions of allegations are never fatal
ii. Negligence:
1. Duty: P must allege specific facts from which Ds duty
arose
2. Causation: Courts will allow causation to be pleaded in
general terms but the causal chain between each step
and transaction must be clearly alleged

16

3. Defenses need not be anticipated: P is not required in the

complaint to anticipate any defense that D may raise and
allege freedom from fault under.
iii. Frauds Special Pleading Requirement under Rule 9b: The
ultimate facts in a fraud action must always be pleaded with
particularity and general allegations are not sufficient under
FRCP 9b
1. Securities fraud: State with particularity facts giving rise
to a strong inference that D acted with the requisite state
of mind in cases where scienter is an element of the
claim
2. Special damages: Damages that are not natural or a
result of injuries must be specifically stated
3. Deficient Complaint and 9b Specificity
a. Bower v Weisman: Motions for a more definitive
statement and motions for failure to state a claim
with particularity
i. Facts: After a relationship with the defendant
ended, the challenger sought to enforce an
agreement under which the defendant
agreed to continue to provide her and her
daughter financial security. He filed three
motions to her seven count claim
ii. A complaint is deficient if it either
1. Fails to clearly identify which D it
refers to, where there are multiple Ds
a. Essence of complaint: to inform
D the general nature of the
action so he can respond
2. Only generally states that 3 Ds
intentionally misrepresented and
defrauded by making promises and
representations, without stating
specifics
a. Specificity: Pleadings are vague
and fail to provide specificity
required by 9b
3. Or fails to set forth facts to support
the claim
iii. 12e, 9b, and 12b6 analysis
1. 12e: The plaintiff has to identify which
defendant is referred to in each charge
if the essence of the complaint is to
inform multiple defendants as to the
general nature of the action and as to
the incident out of which the cause of
17

action arose and to allow him to

effectively respond. The defendant
needs to know what he is answering to
2. 9b: The degree of specificity in fraud
or mistake cases depends upon the
fats of the case, on a case by case
basis. Courts want to be careful about
when and how fraud is going be
complained since fraud emphasizes
both parties representations and
statements
a. Fraud requirements: The
plaintiff needs to include the
false representations
i. The time
ii. The place
iii. The content
iv. And the detrimental
reliance
b. Dismissal without prejudice:
Dismissal without prejudice
occurs with matters that are
politically charged or for per se
plaintiffs
iv. Rationale:
1. Conflict with generality and specificity:
The case shows a conflict with 8a2
generality and 9b specificity
2. Failure to identify the defendant: The
challenger fails to distinguish between
the defendant and the two codefendants, which are his companies
so the defendant was not able to
effectively respond
3. 9b failure: The challengers pleadings
are vague with respect to
misrepresentation, fraud and deceit
4. No factual basis: The challengers
claim for false imprisonment is
dismissed because she did not show
facts that support her claim she was
confined to a townhouse
v. No element proved: The challenger failed to
show an element for private nuisance, the

18

substantial and unreasonable interference

with property rights
iv. Pleading the common counts: A common count is a simple
pleading form seeking contractual or quasi-contractual relief
under FRCP Forms 4-8
1. Limitation: Pleading by means of common count cannot
overcome a substantive deficiency of Ps claim, as where
P supplied goods to D in circumstances not reasonably
implying a duty on Ds part to pay for them
v. Form complaints: Complaint forms are published for the types
of claims that are commonly made. These complaints are usually
presumptively sufficient under FRCP 84
c. Simplified Notice Pleading
i. Conley v Gibson: The FRCP does not require a complaint to set
out in detail the facts upon which the claim is based in order to
give D fair notice of what Ps claims are and what grounds they
rest on
1. Facts: The challenger brings a class action and argues a
labor contract provision on discharge and loss of seniority
rights were violated alleging that the union failed to
represent them fairly because they were black
2. Conleys no set of facts standard: Any statement
revealing a theory of the claim will suffice unless its a
factual impossibility that can be seen from the face of the
pleadings
3. Rationale:
a. Complaint: It sufficiently alleged that black union
members were discharged wrongfully by their
employer and their union refused to protect jobs as
it did white employees or to help them with their
grievances because they were all black
4. Pros and Cons of Pleading Specificity
a. Pros:
i. Greater access to courts: Without discovery,
the plaintiff does not know facts to allege so
many meritorious claims are dismissed, thus
it creates greater access to the courts
b. Cons:
i. Frivolous litigation: Frivolous litigation is
allowed to continue with non-specific noticepleading
ii. Expensive: Requiring more information would
be more expensive for litigants because the
plaintiff would need to make a minidiscovery, just to make the claim before the
statute of limitations ran out
19

ii. Erickson v Pardus: Pro se Plaintiffs should be held to a lower

standard than pleadings filed by lawyers
d. Plausible Pleadings
i. Motion to Dismiss
1. Bell Atlantic Corp v Twombly: To survive a motion to
dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face
a. Plausible Pleadings Rule: It must be sufficient to
give the court a reasonable inference that the D is
liable for the conduct alleged
i. Labels and conclusions/ Formulaic recitation
of elements: Is insufficient
1. More than speculative: Facts of the
claim must be more than speculative
2. Naked assertions: A complaint does
not suffice if it tenders naked
assertions devoid of further factual
enhancement
b. Presumption: All allegations and facts are still to
be presumed as true in light most favorable to the
pleader
c. Parallel conduct: It is circumstantial evidence
that can infer an agreement but falls short to
establishing a conspiracy. It cannot show only a
natural/independent action
d. Three grounds to prevail on a 12b6 motion
i. Plaintiff fails to state a cognizable claim: So
the substantive law offers no relief for this
type of injury
ii. Plaintiff has failed to plead sufficient facts:
Even if a cause of action exists, the pleading
is not sufficient if the plaintiff does not state
even rudimentary information
iii. If the facts in the complaint do not add up to
the elements of the claimed action
1. Difference with cognizability:
Cognizability goes to whether theres
a claim at all while satisfaction of
individual elements of a claim is a
separate issue
e. Dissent on Informational Assymetry: In Anti-trust
cases, where any evidence of collusion can be held
by D, it is more important to allow complaints to
survive a 12b6 motion to dismiss
ii. Employment Discrimination
20

1. Sweirkiewicz v Sorema: A complaint in employment

discrimination lawsuit does not need to contain specific
facts establishing a prima facie case for discrimination
iii. Ashcroft v Iqbal: A well-pleaded complaint requires nonconclusory, plausible and factual pleadings
1. Facts: A Pakistani was charged with a crime and detained
of certain constitutional rights and he alleged deprivations
occurred because his race, religion or national origin so he
sued the Attorney General and the FBI Director. The
defendants move to dismiss as facially insufficient and
raised defense of qualified immunity based on their
official status
2. Reasonable inference test: Pleadings require factual
content that allows the court to draw the reasonable
inference that the D is liable for the alleged misconduct.
a. More than conclusions: Does not rise to a
probability but requires more than conclusions of
misconduct
3. Rule 9b specificity: Rule 9b does not override the
factual pleading requirements of Rule 8 but merely
requires even greater specificity for the enumerated
claims. It does not allow general pleadings.
4. Defendants rights: The defendant is entitled to notice
and factual allegations informing it of the support for the
claim
5. Two steps to test the sufficiency of a claim under
Rule 12b6:
a. Presumption of truth: Identify pleadings that are
only conclusions and so are not entitled to the
presumption of truth
b. Entitlement of relief: Without looking at
conclusions, presume truth of all factual allegations
in complaint and test plausibility that P is entitled
to relief
6. Rationale:
a. Complaint: Alleges the federal government had a
policy of detaining Arabs after 9/11 until the
defendants were cleared
b. Conclusory allegations: Challenger only states that
the defendants were the principal architect and
principal implementer of policies but failed to
include factual allegations showing that they knew
of the federal officials behavior regarding
confinement

21

c. No entitlement of relief: The challenger was

plausibly held for other reasons and detaining
suspects until cleared doesnt violate the
Constitution
7. Notes:
a. Interlocutory Appeal: The appeal of an issue that
does not resolve the disposition of the case but is
essential to a determination of the parties legal
rights
4) Splitting, Joinder and Consolidation
a. Splitting of Claims: A pleader cannot split a single claim into several
different parts and file separate suits on each one. If P sues on only
part of a cause of action, he barred from suing later due to res judicata.
b. Joinder:
i. No compulsory joinder of claims: There is no requirement
that P join in a single action separate and independent claims.
Even where the claims are factually related, P has the option of
instituting a separate suit on each separate claim although Ps
usually join related claims due to the danger of collateral
estoppel
ii. Permissive counterclaims: FRCP 18a abolishes all restrictions
on the joinder of claims and provides that a party asserting a
claim for relief may join as many claims as she has against an
opposing party regardless of subject matter
1. Limitation in multi-party cases: While there are
norestrictions on the number of nature of claims that may
be joined where a single P is suing a single D, the rules
impose limitations on multi-parties
a. Rule: When there are multiple parties, at least one
of the claims by or against each party must arise
out of the same transaction occurrence or series of
them and must involve a common question
affecting each of the parties joined- FRCP 20a
b. Effect: The joinder of parties rules limits the joinder
of claims in multi-party cases to those where there
is a subject matter relationship
2. Separate trials: In its discretion, a trial court may
remedy and possible inconvenience or prejudice caused
by joinder by ordering separate trials under 20b and 42b
a. Separate suits distinguish: If the claims are brought
in separate suits but have related subject matter, D
may move to have the trials consolidated under
FRCP 42a
3. Distinguish SMJ: In federal court, SMJ must also be
satisfied. For claims that arise out of the same transaction

22

there is usually supplemental jurisdiction with regard to

permissively joined claims
c. Consolidation of Separate Actions: The trial judge has the power to
order separate lawsuits tried together or have them consolidated in
single action if they involve a common question of law or fact- FRCP
42a
i. Actions pending in different courts: If separate actions
involving related facts are pending in different courts, many
jurisdictions permit one or more to be transferred so they can be
consolidated or joined for trial in the same court, either in whole
or in part
1. Federal court: Federal multi-district litigation may be
consolidated in one district for pre-trial purposes
(development of issues, discovery, pretrial conference)(28
USC 1407). But a party has a right to trial in the district
the action was filed unless the action was transferred to
another district where it might have been brought 28
USC 1404a
ii. Courts discretion: The court has broad discretion on its own
motion or on motion of a party to consolidate actions involving
common issues.
5) Technical Pleading Requirements: Rule 10 and Rule 17
a. Rule 10: Addresses matters like the caption and the form of allegations
i. Caption: introductory content that provides a heading for each
pleading and motion
b. Rule 17a: Requires that an action be prosecuted in the name of the real
party in interest
i. Real party in interest: Party who has the right to come to court
and seek relief
1. Usually this is a matter of consulting the applicable
substantive law to ascertain to whom the substantive law
allows recovery for a particular cause of action
ii. Answer the procedural question as to the real party in interest:
by consulting the applicable substantive law
c. Rule 17b and c
i. Concerned with the ability of certain entities to sue
ii. Remember that a party may be the real party in interest but lack
capacity to sue
6) Squibs
a. Dioguardi v Durning: It is sufficient for P to just list the facts so
someone can discern the cause of action even though the plaintiff did
not assert the actual cause of action
b. Sovereign immunity
i. Leatherman: No requirement for Heightened pleading
requirement for cases against state actors in their individual
capacities

23

c.

d.

7) FRCP:
a.

1. Heightened requirement: Ps complaint must state with

factual detail and particularity for the claim which
includes why D cannot successful maintain sovereign
immunity
a. Pattern of similar incidents: must be shown
Plausible Pleadings:
i. Twombly: P must provide grounds for entitlement of relief by
more than labels and conclusions and a formulaic recitation of
elements will not do
1. Plausible: Must be more than speculative
Anonymous Plaintiffs
i. Known Actions
1. Doe v Smith: If peoples actions are already known,
Anonymity will not be justified if it has no effect on
protecting privacy
ii. Distinction with Unknown and Anonymous
1. Romero v Drummond Co: Unknown parties: Unknown is
different from anonymous. Once P discovers the identity
of Ds in a complaint, P must amend the complaints by
naming the actual Ds
iii. Mistake Does Not Apply
1. Jacobson v Osborne: 15c is not allowed because of
inability to identify Ds rather than mistake
Responding to a Complaint
Rules 7, 8, 9 , 12, 13, 14, 55

Answers and Affirmative Defenses

1) Answer: Rule 8b provides for the defendants answer to the complaint
a. Time to respond (12a1): 21 days either through an answer or preanswer motion
i. Motions: Under 12a1A and 12a4; They are not pleadings
b. Three types of responses: Denials, defenses and counterclaims
c. Allegations: All allegations made in the complaint must be denied or
admitted
i. Allegations not denied: they are presumed admitted
ii. Lacks knowledge or information sufficient: It is treated as a
denial
iii. General denials: They must be sincere or truly applicable to the
entire paragraph because if not, the denial will be ineffective
and stricken with all allegations being deemed admitted
2) Answers
a. Function of an answer: The function of an answer is to put at issue
the factual allegations in the complaint. The answer accomplishes this
by denying the allegations or setting forth some affirmative defenses

24

b. Responding to pleadings in the complaint: D can deny, admit, or

say she lacks sufficient information (8b1A, 8b5)
i. Admitting: Makes the allegations as fact
c. Denial:
i. General denial: A single general denial under 8b3 will
controvert all of the allegations in the complaint FRCP 8b3
1. Rule 11: D should be careful based on Rule 11; The basic
requirement of good faith based upon reasonable inquiry
in pleading is required.
2. General denial is usually improper: because there is
something usually in Ps complaint that D in good faith
should admit
ii. Specific Denial: Anything less than a general denial is a
specific denial FRCP 8b4
1. FRCP 8b4: D can go through the complaint, paragraph by
paragraph or sentence by sentence, admitting or denying
each part that is appropriate
2. Negativing Ps allegations: A denial may be effected
merely by repeating the allegation but prefacing it with a
word of denial
a. Be careful with
i. Disjunctives: and and or
ii. Dates and Places: If D denies a certain date,
it may be shown that D admitted
performance of another date
1. How to avoid: Add or at any other
time or at any other place
iii. Denial on lack of information: If the defendant is without
sufficient knowledge or information to enable her to form a
belief as to the truth of allegations in the complaint, she may so
state in her answer. Such a statement is an effective denialFRCP 8b5
1. Information within Ds control: If its information which is in
Ds control, use of denial on information and belief may
be forbidden
2. Public record: If its matters of public record, D cannot
deny for lack of information or belief
d. Effect of Failure to Denial: Failure to make an effective denial
constitutes an admission of the allegations- FRCP 8b6
i. Exception on Damages: Allegations of damages are deemed at
issue, even if not effectively denied
ii. Material v Material allegations: Note that only material
allegations are admitted
1. Material: Allegations not essential to the claim
2. Immaterial: Does not constitute admission and it can be
treated as surplusage

25

a.

b.

c.

d.

3. Move to strike: D can move to strike from the complaint

whatever she believes to be immaterial allegations before
filing her answer
Procedure in Answering a Complaint
i. Form: The requirements for allegations in a complaint also apply
to the allegations of an answer
ii. Signing: In FRCP, its the same standards as the complaint
1. Lack of sufficient information: FRCP 11b4 allows D to deny
if the denial is reasonably based on belief or a lack of
information
a. Denial is permissible if: After appropriate
investigation, a party has no information
concerning the matter or has a reasonable basis for
doubting the credibility of the only evidence
relevant to the matter. A party shouldnt deny an
allegation it knows is true but is not required to
admit an allegation that it believes is not true,
simply because he lacks contradictory evidence
iii. Time limitations: D must file her answer within x days after
being served with process, except that if she chooses during
that time to file a motion under 12b, this extends the time for
her filing until 10 days after the 12b motion is denied
1. FRCP 12a1Ai and 12a4
2. Service waived: If D waives service of process, the answer
is not due until 60 days after the request for waiver was
sent if addressed to D within the US or 90 days if Ds
outside the country- FRCP 12a1Aii
3. Service on US: The US, agent of US or office or employee
sued for actions occurring in connection with the
performance of official duties is allowed 60 days to file an
answer
Allegations of Answer Deemed Controverted: Except where the
answer contains a counterclaim, no reply to answer is permitted unless
the court directs (FRCP 7a).
i. Allegations of new matter in the answer: are deemed
controverted (meaning P has a right without further pleading to
introduce evidence to defeat or avoid the allegations- FRCP 8b6)
Challenges to an Answer: P who desires to challenge the legal
sufficiency of an affirmative defense may motion to strike any
insufficient defense under FRCP 12f
i. In addition: P may employ motion for judgment on the pleadings
or motion for summary judgment to challenge the new matter
Contains four types of materials at least
i. Admissions and denials 8b
ii. 12b defenses
iii. Affirmative defenses 8c

26

iv. Counter-claims and cross claims 13

e. Theories: D can use answers to assert theories and additional
defenses
f. Impleader or Joinder: Simultaneously, Ds can wish to implead or join
parties
i. Counterclaim joinder 13h
ii. Consolidate: 42a
iii. Motion to intervene 24
iv. Misjoinder 21
v. Whether to claim a jury trial
2) Admissions and Denials
a. Rule 8b
i. Responsive pleading requirement: When responsive pleadings
are required, allegations not denied are admitted
1. Exception: Damages
2. No requirement: An allegation is considered denied or
avoided
b. Penalties: Exist for denying an entire group of averments when the
pleader could have denied a portion and admit the remainder
c. Zielinski: The D should be treated as if it had admitted operation and
control of the vehicle, in part because it had not more carefully
admitted and denied specific averments in the complaint. Purpose =
Dont be casual in admissions or denials
d. Greenbaum: An answer of lack of information will be usually deemed
a denial
i. Exception: If a party may be held to the duty to exert reasonable
efforts to obtain knowledge
3) Affirmative Defenses: D injects new facts into the dispute. It is material
additional to what P alleged
a. Affirmative Defenses: D must plead any defenses or objections that
constitute new matter or an affirmative defense. Such matter is not in
issue under a simple denial
i. Definition: New matter is anything that D must prove in order
to avoid Ps claim. The test is whether D would bear the burden
of proof on the issue at trial
1. Matter not in issue: It will not be introduced in evidence
ii. Federal practice: Although the burden of proof is a substantive
question under Erie, pleading rules are procedural.
1. Result: If an affirmative defense falls within FRCP 8c, it
must always be specially pleaded and this is true whether
or not D has the burden of proof on the issue
2. Application: The following are the most common types
of new matter in federal practice
a. Tort cases: Self defense, consent, justification, or
other privilege, contributory negligence,
assumption of risk, or license

27

i. Not new matter: Lack of causation- Lack of

proximate cause does not need to be
pleaded and it is in issue under a general
denial of an allegation that Ds acts caused
Ps injuries
b. Contracts: Fraud, mistake, duress, incapacity,
release, waiver, estoppel
i. Illegality: It is of course a defense but
evidence can come in even if not pleaded
ii. Lack of consideration: Will be in issue under
simple denial. But consideration need not
always be alleged and where it need not, it is
new matter that must be specially pleaded
iii. Failure of conditions: Condition subsequent
must be specially pleaded but condition
precedent/concurrent a denial by D
sufficiently controverts Ps allegations
concerning conditions
1. FRCP 9c: Requires Ds denial pinpoint
the particular failure or condition on
which she seeks to rely, in effect
requiring an affirmative allegation
iv. Payment: FRCP 8c requires D to affirmatively
plead non-payment if D intends to rely on
payment as a defense
v. Mitigation: Although D bears the burden of
proof on mitigation, it does not require
special pleading
vi. Statute of Frauds: FRCP 8c requires that the
statute of frauds is new matter and must be
specially pleaded
vii. Statute of limitations: Running of statute of
limitations is new matter and must be
specially pleaded
viii. Pleas in abatement: Not defenses on the
merits but assert some reason why the
present action should be put off or not be
heard
1. Special hearing available: Statutes or
rules often require that on motion of
either party, matters of abatement be
heard first since they would dispense
with litigation if proved
c. Effect of failure to plead new matter: If not
pleaded in the answer, new matter is not in issue

28

and D may not offer evidence of such defenses at

the time of trial unless P fails to object to the
introduction of such evidence or the court leaves to
amend
i. PJ, improper service or improper venue: They
are permanently waived unless asserted at
the earliest time so a later motion to amend
cannot revive these waived defenses under
FRCP 12h1
b. 8c1: Lists 19 classic affirmative defenses but it is not exhaustive
c. Ds burden: D should assert an affirmative defense because she may
not be able to present evidence of the defense at trial without
amending
d. Waiver
i. Proctor v Fluor Enterprises: waiver is more easily applied
when a party fails to set forth one of the 19 defenses specifically
listed in 8c and waiver is less clear when a party fails to assert
some other matter that pre-existing case law has not clearly
construed as constituting an avoidance or affirmative defense
under 8c
1. Rare case of ambiguity: Sometimes courts will wish to
place burden on D but not a total affirmative defenses
2. Alternative judicial device: Place pleading burden on P but
require D to plead non-existence of an element as an
affirmative defense and prove it
4) Default by the Defendant: If D fails to answer or plead within the time
permitted, the clerk is required to enter a default under FRCP 55a
a. Obtaining Judgment: P must proceed to obtain a default judgment.
i. Promissory note or other sum certain: The judgment must be
entered directly by the clerk
ii. All other cases: P must present his evidence to the court to
obtain judgment under FRCP 55b1
b. Setting aside default: Ds remedy is to move the court to set aside
the default
i. Timing: A motion to set aside default can be made at any time
until judgment is entered under FRCP 55c
1. A motion to set aside a judgment can be made at any
time within 1 year after judgment or order is entered
under FRCP 60c1
ii. Grounds: D must show
1. She has a valid excuse for her default
2. That she has a meritorious defense to the action and
3. That P will not be prejudiced

Motions Against the Complaint

29

1) Challenges to Complaints: Before responding to the factual allegations in

the Ps complaint, a defendant may challenge the legal sufficiency of the
complaint
2) Preliminary Motions Steps
a. How much time is there to act:
i. Time period: 12a
ii. Extension: 6b
iii. Look at local rules
b. If in federal court: Look at Rule 12 and 8
3) Motion for a more definitive statement (12e): It allows a limited attack
on the form of pleadings similar to a special demurrer for uncertainty in code
pleading practice
a. Standard: If the complaint is so vague or ambiguous that the moving
party cannot reasonably be required to formulate a response
i. It does not address factual or legal insufficiency: It is aimed at a
complaint that cant be understood
b. Amendment: If court grants this motion, P has 14 days in which she
can plead with clarity
i. Defendant: Must respond to the complaint within 14 days after it
is served
c. When available: To challenge a pleading to which a responsive
pleading is allowed
i. Plaintiff: Cannot assert a 12e motion against an answer but must
use 12f to strike the answer
d. As a predicate for a 12b6 motion: The Supreme Court recognized
that in some circumstances, 12e is an important way of making P put
forward specific, nonconclusory factual allegations so it is proper to use
12e before a 12b6 if there actually is a substantial threshold question
that may be dispositive.
e. Improper form or wordy: The court can require a more definite
statement even if the complaint states a claim if the complaint is
unduly wordy or in otherwise improper form
4) Motion to strike (12f): Asks the court to delete from a pleading any
insufficient defense or any redundant, immaterial, impertinent or scandalous
matter
a. Standard: Either party may move to strike an insufficient defense or
any redundant, immaterial, impertinent or scandalous matter in the
others pleadings
b. Strike portions of complaint: A motion to strike may also be used to
attack separate portions of the complaint which are insufficient as a
matter of law
c. Timing:
i. Defendant: Must make a motion to strike before responding to
the complaint
ii. Plaintiff: must move to strike within 21 days after being served
of Ds response
iii. Court: Can strike on its own
30

1. Insufficient defense can be stricken: If it is insufficient as a

matter of law or D failed to allege it with sufficient factual
detail
5) Motions to Dismiss
a. Rule 12b: Under FRCP, the motion to dismiss is the basic challenge to
the legal sufficiency of adversary pleadings. Making such a motion is
always optional with D, since he can raise the same objections in his
answer
i. Permissible grounds: A motion to dismiss can only be made
on the following grounds
1. Lack of subject matter jurisdiction
2. Lack of personal jurisdiction
3. Improper venue
4. Insufficient process
5. Insufficient service of process
6. Motion to dismiss for failure to state a claim: 12b6
7. Failure to join a party under Rule 19: 12b7
ii. 12g and 12h waivers: Certain defenses that can be raised by
a 12b motion will be waived if they are not included in a 12b
motion that is made based for other defenses
1. Waived defenses:
a. Lack of personal jurisdiction
b. Improper service
c. Improper venue
b. Rule 12b6: Failure to State a Claim
i. Rule 12b6 motion: Under a Rule 12b6 motion, D may move to
dismiss Ps complaint on the ground that it fails to state a claim
that entitles to any form of relief
ii. Presumption: All allegations/facts are presumed as true and in
light most favorable to the pleader
iii. Amendment by P if motion to dismiss is granted: Granting
or denying leave to amend rests in the discretion of the court,
but leave must be liberally granted
1. If P amends: He waives any error in the ruling on the
original complaint unless he can show that the outcome of
the action was prejudiced by the erroneous dismissal of
the original complaint
2. If P chooses not to amend: The court will enter a
judgment of dismissal. The ruling on the motion is not an
appealable order but the judgment can be appealed
a. If P appeals and wins: The complaint is reinstated
and D must answer
b. If P loses on appeal or fails to appeal: This generally
bars any further proceedings in an action but the
appellate court has discretion to remand in order to
permit an amended complaint to be filed

31

iv. Answer by D if Motion Denied: D must answer and proceed

with litigation. But D can raise the same issues on appeal from
the final judgment and by subsequent motions, which can also
be reviewed on appeal from the final judgment
v. Grounds for prevailing
1. Facts not explicitly required: Plaintiff fails to state a
cognizable claim- The substantive law offers no relief for
this type of injury
2. No set of facts standard: A cause of action exists but does
not state rudimentary information
3. Plausibility test: The federal court must show affirmatively
that Ps factual allegations make the Ps entitlement to
relief plausible - If the facts of the complaint dont add up
to the elements of the cause of action
a. Different from cognizability because cognizability
goes to whether there is a claim at all
vi. Steps to test sufficiency of a claim
1. Identify pleadings that are only conclusions and not
entitled to presumption of truth
2. Without looking at conclusions, presume true all factual
allegations in complaint
3. Test plausibility that P is entitled to relief
vii. Fraud or Mistake: When claims are based on fraud or mistake,
FRCP 9b requires P to plead with particularity
1. Claims affected: This requirement applies only to claims
where the substantive right to relief depends on proof of
fraud or mistake
2. Application: Courts usually look to whether P has provided
specifics concerning the date and content of
representation on which a fraud claim is based
a. Multiple Defendant Cases: It may be necessary for
P to specify the involvement of each one that
allegedly gives rise to liability, sometimes requiring
very great detail
3. State of mind: Rule 9b also provides that malice, intent,
knowledge and other condition of mind can be averred
generally. This exempts all allegations on these subjects
from the particularity requirement rule
viii. Heightened Specificity for Other Types of Claims: With
regard to certain other types of claims, some federal courts have
developed pleading requirements that go beyond Conley
1. Civil Rights Claims: Courts often insist Ps allege with
specificity the basis for their belief of Ds actions
2. Claims analogous to fraud
3. Qualified Immunity: When plaintiffs plead in cases where
local officials claim qualified immunity against suit

32

4. Supreme Court: Supreme Court has held cases not

covered by Rule 9b, the lower courts may not impose
heightened specificity requirements but it has also held
that giving adequate notice in a complaint can require
specifics
5. Alternative or requiring reply or entertaining a motion for
more definitive statement: The supreme court stated in
suits involving official immunity, a district court must
exercise is discretion so that officials are not subjected to
unnecessary and burdensome discovery of trial
proceedings
a. If P can overcome Ds defense of immunity only with
proof of a wrongful motive: the court may insist
that P put forward specific non-conclusory factual
allegations that establish this motive
b. Courts primary options
i. Court may order a reply to D or a third
partys answer under FRCP 7a or
ii. The court may grant D motion for a more
definite statement under 12e
c. Timing Issues:
i. 12h: Addresses waiver of all seven of 12b defenses but clusters
them into three grounds of timing
1. Selection of forum defenses in 12h1: They are waived if
omitted from 12 motion or if omitted from a responsive
pleading
ii. Timing Principles:
1. Defenses 12b2-5 must be put in the first defensive
response: If not they are waived
2. Defenses 12b6-7 may be raised as late as at trial: Which
is any time before entry of judgment of the court (12h2)
3. 12b1 may be raised at any time (12h3)
6) Procedure on motions under Rule 12: A motion under Rule 12 must be in
writing and must specify the ground upon which it is based under FRCP 7b1
a. Facts: If the motion is based on facts, there must be established by
accompanying affidavits, declarations, depositions or other evidence
b. Time: The motion must be served within the time permitted to D to
serve the answer. The filing operates to extend the time within which
the answer is due until the court rules on the motion
7) Effects of failure to include defenses in a motion: Though D is never
compelled to file a motion under 12, if she does, she must include all
defenses and objections that she could then raise by motion. If she omits
one, she may not make a further motion on the omitted ground FRCP 12g
a. Answer: She will be able to raise the ground in her answer unless it is
a ground that is waived by failure to raise in the first responsive
pleading or motion

33

b. Waiver: The following defenses are waived unless raised by motion or

in the first responsive pleading- FRCP 12h
i. Objections to the form of the complaint
ii. Objections to Venue
iii. Objections to Personal Jurisdiction
iv. Insufficiency of Process
c. Amendments: Even if D fails to raise a given defense in an answer, D
can obtain leave to amend the answer to add the omitted defense
d. Defenses that need not be raised in an Answer: The following
defenses need not be raised in an answer to be raised later by motion
under 12h2, 3
i. Lack of SMJ
ii. Failure to join an indispensable party
iii. Failure to state a claim upon which relief can be granted
e. Limitation: Waiver pertains only to the defenses that could be raised
by a Rule 12 motion and not substantive defenses which can only be
raised in the answer
8) Motion for judgment on the pleadings: If it is brought after D has served
her answer, The court will take all allegations of the complaint is true and
whether they state a legally cognizable claim FRCP 12c
a. Making of the motion: A motion for judgment on the pleadings may
be made by either party at any time after the pleadings have closed,
but within such time as will not delay the trial
b. Standard:
i. Legal sufficiency of pleading: A motion challenges only the
sufficiency of the adversarys pleading in posing a legally
meritorious claim
ii. Matters beyond the pleading: This motion is treated as summary
judgment under 12d
c. Hearing on Motion: A motion for judgment on the pleadings is
generally heard before commencement of the trial but the court may
order the motion deferred until the time of trial- FRCP 12i
9) Additional Rules of Pleadings
a. Materials Considered
i. Pleading on its Face: In general, challenges to the sufficiency of
the pleadings are limited to the allegations of the pleading alone
and consideration of evidentiary materials are not allowed
1. Conversion to summary judgment: If materials outside the
complaint are submitted with a motion to dismiss for
failure to state a claim and are not excluded by the court,
the motion is to be considered a motion for summary
judgment- FRCP 12d
ii. Exhibits: When a document is an exhibit to the complaint, it is
part of the pleadings for all purposes under FRCP 10c. Thus it
can be considered in connection with a motion to dismiss
iii. Superseded pleadings: Reference to earlier pleadings filed by
the same party can present several kinds of problems
34

1. Inconsistent allegations: The fact that P made an

inconsistent allegation in a previous complaint does not
make the current complaint inadequate
2. Omission of fatal details: Where a party has attempted to
cure a defect by omitting an allegation, the court may
look to the previous complaint to determine the
sufficiency of the current complaint
iv. Matters judicially noticed: A pleading construed in light of the
facts that may be judicially noticed: Historical facts, geography,
etc.
v. Materials referred to in the complaint but not attached: Some
courts say these materials were central to the complaint while
others considered them anyway
b. Anticipatory Defenses: A complaint need not anticipate affirmative
defenses that D might rise
i. Built in defenses: If a defense is built into the complaint because
Ps allegations provide support for it, D may raise the defense on
a motion to dismiss for failure to state a claim even though in
general its an affirmative defense
ii. Duty to investigate: Before filing a complaint, Ps attorney
should investigate defenses

Amendments and Supplemental Pleadings

1) Rule 15 In General: Since its the basic function of pleadings to define the
issues in controversy, rules on amendments and supplement are of vital
importance. The problem is the extent to which a party can alter or expand
his case from what was originally set forth. Thus, this depends on the stage of
the proceedings where the amendment was sought
2) Amendment supersedes original pleading: An amended pleading
supersedes the original and the original has no further effect. Thus, the
pleader cant resurrect the original by attempting to dismiss or strike the
amended pleading but she can seek leave to re-amend if she wants to return
to the claim originally pleaded
a. Evidence: But the original pleading can still be used as evidence
3) Amendments of Right and Leave to Amend Rule 15a: Rule 15a
addresses two types of amendments
a. As a matter of course: When a party has a right to amend, she
doesnt need to get a court approval and can just file and serve the
amended pleading
i. Rule 12f Strike: If the defendant feels that there was no right,
she may file a motion to strike under Rule 12f
b. Permissive amendments : The party may amend only if the
opposing party consents in writing or if the court grants leave to
amend

35

4) Amendments as a Matter of Right under Rule 15a1: A pleading may be

amended once as a matter of course (without leave of court)
a. Circumstances for amendments as a matter of right:
i. Defendants right: Amendment of right is allowed once, if it
occurs within 21 days after the pleader served the original
pleading (Rule 15a1A)
ii. Plaintiffs right for responsive pleadings: If a responsive pleading
is required, amendment of right is also allowed even if it
happens more than 21 days after the original pleading was
served, as long as the amendment happens within 21 days
following the earlier of (Rule 15a1B)
1. Service of responsive pleading: Service of the responsive
pleading or
2. Service of motion: Service of the other sides motion
under 12b, e, or f
b. More time: In cases for responsive pleadings, the plaintiff can amend
of right at any time until 21 days after the defendant has served either
an answer or 12b, e or f motion, no matter how much time has elapsed
since the plaintiff served the original complaint
c. Second amendment: A second amendment will be possible only with
leave of court
d. Amending Parties: The courts are split on if a plaintiff may wish to
amend to add new parties to or from the case.
5) Amendment by Leave of Court under Rule 15a2: If the situation does
not fall into one of the above amendment as of right categories, then the
plaintiff may amend only by getting leave of court (permission)
a. Expiration of 21 days: If the time in which there is a right to amend
has expired, the party seeking permission to amend must get:
i. Court permission: Court permission or written consent of the
adverse party to amend or
1. Courts approval: The court should freely give leave to
amend when justice requires (Rule 15a2)
a. Amendment after dismissal: In the case where D
has succeeded with a motion to dismiss the original
complaint, the court will most often give P leave to
amend
2. Courts denial: Normally, leave to amend should be
denied only if it would cause actual prejudice to the other
party
ii. Consent: Written consent of the adverse party to amend
b. Motion: To obtain court permission, the party must make a motion to
leave to amend
6) Response to Amendment under Rule 15a3: When the plaintiff amends,
the defending party must respond, unless the court orders otherwise
a. Timing: The defending party must respond, unless the court orders
otherwise, whatever is earlier in two circumstances

36

i. Time remaining of original pleading: Within the time remaining

to respond to the original pleading
1. Time set: The time remaining for response to the original
pleading refers to the time set forth in Rule 12 for
defensive purposes, which is usually 21 days from the
date of service
ii. After service of amended pleading: Or within 14 days after
service of the amended pleading.
7) Amendments During and After Trial: Variance (Rule 15b): The federal
rules allows substantial deviation of the proof at trial from the pleadings, so
long as the variance does not seriously prejudice the other side.
a. Variance: Variance is inconsistency between the facts pleaded and
those proved.
b. Timing only at Trial for Non-Pleaded Evidence: Its relevance is
only at trial when a party seeks to introduce evidence she did not
plead. It only comes up when a party seeks to introduce evidence at
trial of a claim or defense she did not plead
i. Plaintiff: The plaintiff can use Rule 15b if she seeks to put
evidence she did not include in her complaint
ii. Defendant: The defendant can use Rule 15b if she seeks to put
evidence on an affirmative defense that she did not include in
her answer
c. Limitations: Prejudicial variance is not allowed
i. Definition of Prejudicial
1. Non-prejudicial: If it concerns the same transaction and
the difference did not mislead the other party in preparing
her defense
2. Prejudicial: Where the facts proved at trial show an
entirely new and different cause of action or otherwise
differ so materially from the original pleadings
ii. Determinative factors: Whether a variance is prejudicial
depends on several factors
1. Surprise to the opponent
2. Whether continuance would enable the opponent to meet
the evidence
3. Any elements of inconvenience or unfairness
4. Policy favoring amendments
d. Two possible variance situations 15b1-b2: When a party seeks to
introduce evidence at trial that goes beyond the scope of her
pleadings, the other party may object and ask the court to exclude the
evidence so it will not be part of the trial record that the fact-finder
considers in reaching a conclusion
i. Amendment Over Objection at Trial under Rule 15b1:
Party may object to the variance; Court applies this provision
and is concerned with the possibility of amending the pleadings
at trial

37

1. Seeking Leave to Amend: If he court believes it goes

beyond the scope of the pleadings and bars the
introduction of the evidence, the party proferring the
evidence must seek leave to amend his pleadings
a. Courts standard: Court should freely permit an
amendment when doing so will aid in presenting
the merits and the objecting party fails to satisfy
the court that the evidence would prejudice that
partys action or defense on the merits
2. Burden of prejudice: On the non-moving party. The
objecting party must show prejudice on the merits
a. Litigation by surprise: Is disfavored by the rules and
by our system
ii. Evidence received without objection under Rule 15b2: If
the party agrees to allow the variance, Court applies this
provision and is concerned with conforming the pleadings to the
evidence
1. Waiver: Any variance between pleadings and proof is
waived unless a specific, timely and proper objection to
the evidence is made when offered
2. Conforming the pleadings: It must be treated in all
respects as if raised in the pleadings
a. Effect: The variance is ignored, evidence is
admitted at trial and treat pleadings as though they
were included
3. Motion Timing: A party may move at any time, even after
judgment, to amend the pleadings to conform them to the
evidence and to raise an unpleaded issue
a. Failure to move to amend: FAILURE TO MOVE TO
AMEND DOES NOT AFFECT THE OUTCOME OF THE
TRIAL
iii. Amendments After Trial: The pleadings can be amended to
conform to proof at any time, even after trial and entry of
judgment. Such a motion can be made for the first time on
appeal. But the appellate practice does not consider the grounds
for appeal that were not reasonably raised in trial court
8) Relation Back Doctrine: Relation Back (Rule 15c) deals with the
amendment of pleadings after the statute of limitations has run.
a. Statute of limitations run: The statute of limitations starts running
when the claim accrues and the plaintiff has a certain amount of time
to commence her suit before the statute of limitations ends
b. Two scenarios under Rule 15c1: Under Rule 15c1: The plaintiff may
seek to leave to:
i. Adding a new claim under Rule 15c1B: The plaintiff may
seek leave to amend her complaint to add a new claim or the

38

defendant can seek leave to amend to raise a new defense after

the statute has run
ii. New defendant under 15c1C: The plaintiff may seek leave
toamend to join a new defendant after the statute has run
c. Relation back for Adding a New Claim: When a pleading has been
amended, the amendment will relate back to the date of the original
pleading in two circumstances
i. Statute of Limitations Under 15c1A: If the statute of
limitations expressly allows relation back
ii. Arising out of the Conduct, Transaction or Occurrence: If
the claim or defenses asserted in the amended pleading arose
out of the conduct, transaction or occurrence set out, or
attempted to set out, in the original pleading.
1. A single conduct transaction or occurrence: If whats
amended is simply the plaintiffs claim of theory, the court
will typically find that the same conduct test is satisfied.
a. Sufficient Amendments:
i. Same-Real World Events: Relation back is
permitted when the claim being added
simply espouses a new theory of liability
arising from the same real-world events
alleged in the original complaint
ii. Defective allegation: If the amendment
merely fixed a defective jurisdictional
allegation from the original complaint but
conerns the same real world events as the
original, relation back is appropriate
b. Exception of Material Difference: Where the
underlying facts needed to sustain the new
pleading are materially different from those alleged
in the original complaint, the court is likely to find
that the same conduct standard is not met
iii. When Action is Commenced: According to Rule 3, an action is
deemed commenced as of the date on which the complaint is
filed.
1. Federal question cases: In federal question cases, it is to
the Rule 3 date that the amendment relates back
2. Diversity cases: It is the date that state law regards as the
date of commencement which controls
d. Amending Parties (15c1C): Amendment after the statute has run to
add a new D
i. Change of Party Rule: Where the amendment of the pleading
changes the party against whom the claim is asserted, the
amendment relates back only if it passes four requirements
ii. Four Requirements

39

1. Same conduct, transaction or occurrence: Claim

arises from the same conduct, transaction or occurrence
as stated in the original complaint
2. Notice: Within 120 days of filing the original complaint, D
received notice of the suit under Rule 4m
a. Any source: The notice need not be by service of
the complaint but may come from any source
b. Other Forms Of Notice: Notice does not require
actual service of process on the party sought to be
added- It can be constructive, actual or implied
i. Constructive or implied notice: can be by two
methods
1. Shared attorney method: Where the
attorneys later relationship with the
new D gives rise to the inference that
the attorney, within the 120 day
period, had some communication or
relationship with and thus gave notice
to the newly named D
2. Identity of interests method: Where
parties are so closely related in their
business operations or other activities
that the institution of an action against
one serves to provide notice of the
litigation to the other
3. No Prejudice: That the party receiving notice will not be
prejudiced in defending on the merits and
4. Knowledge: The party knew or should have known that
the action would have been brought against it but for a
mistake concerning the proper partys identity
a. Reasonable mistake: The mistake does not need to
be reasonable but only requires a mistake to be
made
b. Two scenarios of plaintiff mistake of identity
are sufficient: There are two different scenarios
involving a mistake by the plaintiff about the
identity of the proper party, in which the Rule
15c1Cs relation back doctrine will protect the
plaintiff
i. Plaintiff does not know of the D2s existence:
If the plaintiff at the time the complaint is
originally filed only knew of D1 but not D1
and P serves D1 within the limitations period
but by the time P learns that the correct D is
D2, the limitations period has elapsed.

40

1. Requirements: The plaintiff can bring

an amended suit that substitutes D2 if:
a. Should have known: Before the
time for proper service (before
120 days after the running of
the statute) against D2 expired,
D2 knew or should have known
that the action would have been
brought against D2 had P not
made a mistake concerning the
partys identity and
b. Notice: D2 got sufficient notice
that she wont be prejudiced in
defending the action
ii. Plaintiff knows of D2s existence but thinks
D1 is the correct party: If, at the time the
original complaint is filed and served, P
knows of both D1 and D2s existence but
believes D1 is the proper party so she brings
suit only on D1
1. Requirements: The plaintiff can use
the relation back doctrine so long as:
a. Knew or should have known: D2
learns or should have learned
that within the statute of
limitations period plus 120 days
that the suit has been filed and
b. Correct party: That D2 is the
correct party
2. Plaintiffs awareness of D2: The
plaintiffs awareness of D2 does not
make a difference so long as she
believed that D1 was the correct party
to sue
3. Defendants knowledge: 15c1C asks
what the prospective defendant knew
or should have known and not what
the amending party knew or should
have known
iii. Adding plaintiffs: Rule 15c1c only speaks of adding Ds not
plaintiffs so ordinarily relation back is not allowed for claims of
new Ps. But relation back has been allowed in situations in which
new P is the real party of interest
1. Distinguish class actions: The filing of the class action tolls
the running for all members of the class thus class

41

members may be included in the suit after the class is

certified or benefit from this tolling if a class is not
certified or if they opt out of a certified class
iv. Distinguish John Doe Ds: Some states allow the filing of a
complaint against John Does where the true name of D is not
known when the action is filed so the complaint can be amended
to name D when her identity is discovered, even if the statute of
limitations has run
v. Diversity cases: Relation back is applied by federal courts in
diversity cases even if theres no similar local rule. Thus P may
be able to assert a claim in an amended pleading that would be
barred by the state court under the same circumstances
9) Supplemental Pleadings: On motion and reasonable notice, the court may,
on just terms, permit a party to serve a supplemental pleading setting out
any transaction, occurrence, or event that happened after the date of the
pleading to be supplemented. The court may permit supplementation even
though the original pleading is defective in stating a claim or defense. The
court may order that the opposing party plead to the supplemental pleading
within a specified time. FRCP 15d
a. Purpose: update the parties and the court of facts that did not occur
when the pleadings were filed
b. Effect: The function is merely to add to, not modify the original
pleadings. It does not replace the original
i. Federal practice: Rule 15d gives the court discretion to allow
supplemental pleadings despite the fact that the original
pleading is defective or that the supplement would change the
nature of the relief sought
c. Timing: Concerns situations after the pleading was filed. It gives a
party an opportunity to submit events that have happened since the
litigation has been brought forth
d. Procedure: The party seeking leave to supplement a pleading must
file a written motion with a copy of the proposed supplemental
pleading attached
i. Response: Whether a response may be filed is also discretionary
with the court. If the court orders a response, it will likely set the
time within such a response must be served and filed
e. Defect: Doesnt bar supplemental pleadings
i. Separate remote transaction: It can be accepted even if its
brought from a separate transaction that is remotely related
f. Unlike amendments: There is no right to supplement pleadings. The
filing of pleadings is permissive within the sound discretion of the court
i. Must be raised on a motion: By the party seeking leave to
supplement
10)
Responding to Amendments
a. Relation Back
i. Notice
42

1. Singletary v Pennsylvania Department of

Corrections: After the statute of limitations has run, a
new party may not be added to a suit under the relation
back doctrine unless such party received notice of the
institution of the action within 120 days of the filing of the
original complaint
a. Facts: After filing suit and after the limitations
period ran, the challenger sought to add a newly
named defendant under the relation back doctrine,
specifically substituting a known psychologist for
Unknown Correction Officers
2. Lack of Notice: A lack of notice can dismiss the case on
its own
3. Rationale:
a. Lack of knowledge of a persons identity: Is not a
mistake
b. A staff-level employee: A non-management
employee does not share a sufficient nexus of
interests with his employer so that notice given to
the employer can be imputed onto the employee
c. John Doe: A bulk of authority from the court of
appeals takes the position that a John Doe
complaint does not meet the but for a mistake
requirement in 15c3B. The court was not bound but
expressed concern about the interpretation and
they recommended a modification
4. Christopher v Duffy: FRCP 17a Real party (Adding New
Plaintiffs)- It automatically relates back if youre adding a
new plaintiff. Rule 15 does not control for changing
plaintiffs
b. Plaintiffs Mistake in Identity for 15c
i. Krupski v Costa Crociere: FRCP 15c allows an amended
complaint to relate back to a previously filed complaint if the
proper D knew or should have known with the time of service
that but for a mistake in identity, P would have asserted the
claims against the proper D
1. Facts: The challenger was injured on a cruise and she
sued a wrong party and sought to amend a complaint to
name the proper defendant after the time lapsed.
c. Adding a Party or New Theory of Liability: Massachusetts Law
i. Christopher v Duffy:
1. Adding a new party or theory: ADDING A PARTY OR
SOUNDING A NEW THEORY OF LIABILITY SHOULD BE
ALLOWED WITH RELATION BACK AS LONG AS
a. Claiming for the injury first sued on: CLAIMING FOR
THE SAME INJURY FIRST SUED ON AND
43

b. No good reason to deny it: UNLESS THERE IS GOOD

REASON TO DENY IT.
2. Permission to Amend: PERMISSION TO AMEND TURNS ON
WHETHER THE NEW DS WILL BE UNDULY PREJUDICED IN
HAVING TO RESPONDENT TO A DELAYED COMPLAINT.
THIS IS MASS. LAW! FRCP 15 is more stringent.
11)
Statute of Limitations: Most states have statutes requiring that
certain causes of actions be brought within a certain number of years from
when the cause of action accrued
a. Cause of action accrues: when every element of the cause of action
is taken place
b. Tolling Agreements: Sometimes potential parties: will agree to stop
the running
c. Equitable Tolling: Applies in rare cases
i. Burden: The party seeking to invoke it
ii. Must demonstrate
1. Existence of the aforementioned rare and exceptional
circumstance and
2. That those circumstances prevented him from filing a
timely petition despite the exercise of due diligence
a. Reasonable diligence must be shown: But despite
his efforts, extraordinary circumstances beyond his
control prevented successful filing during that time
3. P must demonstrate a causal relationship: between the
circumstance and the lateness of his filing
4. Exceptional circumstances: Possibly illness or mental
incapacity
a. But existence of mental illness alone is insufficient:
It will only constitute if petitioner is unable to
pursue his legal rights during the period.
b. Without a particularized description of how his
condition adversely affected his capacity to
function generally or in relationship to pursuit his
rights: Can't toll

Sanctions
1) Sanctions (Rule 11): Purpose is to deter abuses of the judicial system
2) History:
a. 1983 Version: Good faith of the pleader was no longer an acceptable
excuse for failing to do reasonable pre-filing factual and legal inquiry
b. 1983 amendment: Mandatory sanctions to force lawyers to conduct
adequate factual and legal investigations prior to suit
c. 1993 version: Discretionary sanctions and sanctios are no longer
mandatory

44

3) Signature Requirement under Rule 11a: Under Rule 11a, there is a

signature requirement on the attorney of record for the party
a. Pro-se plaintiffs: If there is no attorney of record, the Rule imposes the
signature on the party herself
b. Necessary documents: Pleadings motion and briefs are to be signed
under Rule 11
i. Discovery Exception: Under Rule 11d, Rule 11 does not apply to
discovery
4) Certification under Rule 11b: Under Rule 11b, the signature represents a
certification of the court
a. Duty of reasonable inquiry: A duty of reasonable inquiry is imposed
on the signer
b. Continuing certification: There is a continuing certification any time
a party presents a document to the court. Certification is made not just
when the lawyer signs but every time she presents the document
i. Presenting a document: Presenting a document includes signing,
filing, submitting or lter advocating
c. Certification: by signing, the person certifies to the best of his
knowledge, information and belief, formed after an inquiry reasonable
under the circumstances.
i. Signer did not present an improper purpose, such as delay or
harassment or increase the cost of litigation
1. Creative Pursuit of Legal Theory: A creative pursuit of
legal theory is not an improper purpose as long as there is
no showing of harassment
ii. Legal contentions are warranted or by non-frivolous argument
for extending, modifying or reversing existing law or establishing
new law
1. Lack of factual basis: A lack of factual basis is a warranted
legal contention if there are no facts available to support
the complaints allegations
iii. Factual contentions have evidentiary support or will likely have
later after a reasonable opportunity for further investigation
1. Lack of precedent: A lack of precedent is not a means to
impose sanctions
iv. Denials of factual contentions: This applies to denials of factual
contentions and whether they are reasonably based on belief or
a lack of information
5) Violations of Sanctions Under Rule 11c:
a. Sanctionable parties: The court can impose a sanction on any
attorney, law firm or party that violated the rule or is responsible for
the violations
i. Law firms: Absent exceptional circumstances, a law firm is jointly
responsible for a violation committed by a partner, associate or
employer

45

1. Why law firms are responsible: Law firms are expected to

supervise their people. If people are making frivolous
arguments, the firm can be sanctioned. Also vicarious
liability.
b. Raising Violations Under Rule 11c1-2
i. Order to Show Cause Under Rule 11c3: The court will enter an
order to show cause requiring a party to show cause why
specified behavior did not violate Rule 11b
ii. Motion by Other Party Under Rule 11c2: A party may move for
sanctions against another party or her attorney or law firm
1. Motions requirements: The motion must satisfy two
requirements
a. Statement of conduct: The motion must state
specifically what conduct allegedly violated Rule
11b and
b. Separate motion: The motion must be brought
separately from other motions
2. Safe Harbor Provisions under Rule 11c2: Rule 11c2 has a
safe harbor of 21 days for the party allegedly violation
Rule 11
a. Allowance of Amendment: It allows an amendment
of pleadings to remove claims without evidence,
before Rule 11 motion for sanctions is filed with the
court
6) Availability of Sanctions:
a. Discretionary: Sanctions are not required but re to be imposed in the
discretion of the court
b. Deterrence under Rule 11c4: The purpose of sanctions is not to
punish wrongful behavior but to deter such behavior in the future
c. Types of Sanctions under Rule 11c4
i. Monetary Directives: It goes to the other side if its payment of
attorneys fees
ii. Non-Monetary Directives: These can incur circulation of judicial
opinionslude reprimands, warnings or directives
1. Treasury: It goes to the treasury of the court-clerk
iii. Penalty Payment
iv. Attorneys fees and other expenses: Equal to people required to
bring the motion or any time taken or expended responding to
frivolous information
1. Requirements: The sanction must be imposed on motion
and warranted for effective deterrence
2. Costs versus attorneys fees:
a. Costs: Costs are the expenses of litigation, such as
filing fees, fees for service of process, discovery
costs, witness fees, costs of notice to others

46

i. Allowance of costs: Under Rule 54d1, costs

should be allowed to the prevailing party
unless the court directs otherwise and such
costs are taxed by the court clerk to the
losing party and included in the judgment
b. Attorneys fees: The loser usually does not pay the
winners attorneys fees unless there is an
exception
7) Limitations on Monetary Sanctions under Rule 11c5:
a. Clients: The court cant impose a monetary sanction against a
represented party for violating 11b2
b. Without a show cause order: The court cant impose a monetary
sanction on its own unless it issued a show-cause order before
voluntary dismissal or settlement of the claims made by or against the
party that is to be sanctioned
8) Requirements of a Sanction under Rule 11c6: An order imposing a
sanction must
a. Description of conduct: Describe the conduct that is being sanctioned
b. Explanation: Provide an explanation for the basis of the sanction
9) Avoiding Sanctions:
a. Distinguish facts
b. Make policy arguments
c. Cite dissenting opinions
10)
Other Notes
a. Civil Rights plaintiffs: Rule 11 disproportionately affects civil rights
plaintiffs. Plaintiffs frequently dont know what D knows or the
information D has and is forced to file an incomplete claim
b. Other possible options: Discovery Rule 27, 28 USC 1297, 12b motions,
12e motion
11)
Case
a. Chaplin v Dupont Advance Fiber Systems:
12)
Squibs
a. Courts review of Sua Sponte Sanctions
i. Hunter v Earthgrains
1. Legal argument: must have absolutely no chance of
success under the existing precedent
2. Although a legal claim may be so inartfully pled that it
can't survive a MTD, such a flaw will not support Rule 11
sanctions
3. Only the lack of any legal or factual basis is sanctionable

Joinder
1) Three Steps of Joinder: Whether a claim can be asserted or a party joined
in federal court requires three steps:
a. Joinder Provision: Is there a joinder provision that allows assertion of
this claim or party

47

b. Subject Matter Jurisdiction: If so, does the claim have subject matter
jurisdiction (venue, PJ too)
c. Supplemental Jurisdiction: If not, whether the claim can be invoked by
supplemental jurisdiction
2) Test For Determining Same Transaction or Occurrence
a. Same issues: Are the issues of fact and law raised by the claim and
counterclaim largely the same?
b. Res Judicata: Would res judicata bar a subsequent suit on Ds claim
absent the compulsory counterclaim rule?
c. Same Evidence: Will substantially the same evidence support or refute
Ps claim and Ds counterclaim
d. Logical Relation: Is there any logical relation between the claim and the
counterclaim
3) Same Transaction or Occurrence:
a. Relevance: The same transaction or occurrence test is relevant for
i. Rule 20: Permissive joinder
ii. Rule 15c: Relation backs
iii. Rule 13g: Cross-claims
b. Scope of Transaction or Occurrence:
i. Broad view- Jurisdiction in first question: When the question is
whether the counterclaim is within the courts supplemental
jurisdiction, it allows the counterclaim to avoid multiplicity of
suits
ii. Narrow- Scope of preclusion in a later action: If the question is
whether D who failed to interpose a counterclaim is barred from
later suing on it, a narrower definition may be used if it would be
inequitable to bar the later suit
4) Overriding the Plaintiffs Joinder Choices: The plaintiffs joinder choices
under Rule 20a can be overridden by forcing the joinder of absentees in three
circumstances.
a. Three Circumstances
i. Compulsory Party Joinder under Rule 19
ii. Impleader Under Rule 14
iii. Intervention Under Rule 24
b. Policy Interests in Overriding the Structure:
i. Efficiency
ii. Avoiding Harm to the Absentee
iii. Avoiding Harm to the Defendant

Joinder of Claims and Consolidation

1) Joinder of Claims: The process by which one who has made a claim may
join further claims with it against the same opponent
2) Joinder of Claims by a Claimant Under Rule 18a: A party asserting a
claim, counterclaim, cross-claim, or third party claim may join, as
independent or alternative claims, as many claimsas it has against an
opposing party

48

a. No limitation: It can be completely unrelated, independent, or

alternate claims. There are no procedural restrictions
b. Permissive: The rule provides that the plaintiff may join as many
claims as she has against the defendant
c. Res Judicata: If you dont bring all your potential causes of actions
and remedies that arise from the same transaction at the same time,
final judgment may not let you bring them later
d. Any Party is Applicable: It applies to any parties that has an
opposing party (must be a claimant FIRST). Plaintiffs are not the only
claimants.
i. Defendant as a claimant: Defendants can become claimants by
asserting counterclaims, cross-claims or third party claims
1. Timing: Note that Rule 18a does not apply to defendants
until they become claimants by asserting one of the
listed claims
e. Subject Matter Jurisdiction: Rule 18a claims can be asserted only if
they invoke federal subject matter jurisdiction
3) Joinder of Contingent Claims Under Rule 18b: A party can join two
claims even if one is contingent on the disposition of another, but the court
may grant relief only in accordance with the parties relevant rights
a. Claim for Money and Claim to Set Aside Fraudulent Conveyance: The
plaintiff can state a claim for money and a claim to set aside a
fraudulent conveyance, without first obtaining a judgment for that
money
4) Not complete freedom: Other procedural laws can compel the party not to
have the claim in that cause of action
a. Preclusion issue: Claim preclusion and res judicata
b. Statute of limitations: Statute of limitations can vary significantly
c. Jurisdiction

Joinder of Parties: Permissive (Rule 20a) and Compulsory

(Rule 19)
1) Joinder of Parties in General: Determining which parties are to be joined
as P or Ds require consideration of the rules of compulsory and permissive
joinder
2) Permissive Party Joinder under Rule 20a: Plaintiffs may join anyone
involved in the transaction that is the subject matter of the suit
a. Proper parties: Rule 20a determines who may be joined in a single
case
b. Parties that may be joined under Rule 20a1 and 20a2:
i. Co-plaintiffs under Rule 20a1: Rule 20a1 defines who may be
joined as co-plaintiffs
ii. Codefendants under Rule 20a2: Rule 20a2 defines who may be
joined as co-defendants

49

c. Permissive Party Joinder Test: Two or more may join together as coplaintiffs (or co-defendants) if their claims pass two requirements:
i. Same transaction or occurrence: The claims must arise out
of the same transaction, occurrence, or serious of transactions
or occurrences
1. Transaction or occurrence: Same issue or interrelation
among Ds conduct or in the interest being asserted by
multiple Ps.
2. Injuries at different times: The court is liberal in permitting
joinder of the defendants when the plaintiff alleges that
her present condition is the result of the combined effects
or that the second incident exacerbated the injuries of the
first, or if the injuries cant be identified separately
3. Henderson Test: Whether two lawsuits across the hall
from each other would have the:
a. Same evidence and (overlap of facts and evidence
and logically related claims)
b. Same questions of law
4. Joint Right of Relief (Lopez NJ): It must be shown that
the joined parties assert a right of relief jointly, severally
or that their claim arises out of the same transaction
a. Arising from a Pattern or Practice: A claim arising
from a pattern or practice is sufficient to show
same transaction and overcome the fact it was
from separate facts
ii. Common Question: The claims must raise at least one
common question of law or fact
1. Predominance or Dispute Not Necessary: The common
question does not need to be of predominant importance
of the case; it must simply exist
2. Factually intertwined claims: But then the court will define
transaction more narrowly by asking if the issues in the
two claims are factually intertwined with one another is
any significant way
d. Adding unrelated claims: As long as the requirements are met, each
party may assert as many claims as she has against the opposing
party under FRCP 18a
e. Extent of Relief under Rule 20a3: Neither a plaintiff nor defendant
need be interested in obtaining or defending against all the relief
demanded.
i. Courts power to grant judgment: The court may grant judgment
to one or more plaintiffs according to their rights and against
one or more defendants according to their liabilities
f. Power of the court to separate trials under Rule 20b: The court
can separate trials for various claims joined under Rule 20b

50

g. Jurisdictional Requirements: Federal SMJ, PJ and venue

requirements must be satisfied as to all parties permissively joined
h. Strategic Issues for Permissive Joinder of Parties:
i. Reason why the plaintiff would fail to join all possible parties:
The plaintiff would fail to join all the possible parties because
there may be jurisdictional limitations doing so
ii. Potential defendants: Generally, plaintiffs prefer to have all
potential defendants joined in the single case
iii. Potential plaintiffs: Generally, plaintiffs prefer not to have all coplaintiffs suing with them
3) Compulsory Party Joinder (Rule 19): Rule 19 provides the framework of
whether an absentee should be joined into the suit
a. Types of Parties and Potential Parties: There are three categories
of parties
i. Proper Parties Under Rule 20a: Proper parties are persons
who may be joined, at the option of the plaintiff, because they
have a sufficient connection to the dispute
ii. Required (or Necessary) Parties Under Rule 19a:
Necessary parties are proper parties whom the plaintiff did not
join, but whose presence is so desirable that the court will
override the plaintiffs choice by requiring them to be joined if
joinder is possible
iii. Indispensable parties: Indispensable parties are necessary
and proper parties who the plaintiff did not join, and who should
be joined (because they are necessary) but cannot be joined
(possible lack of personal jurisdiction) and in their absence, the
court decided that it will dismiss the pending case rather than
proceed without such absences
1. Definition: Indispensable absentees are those who not
only have an interest in the controversy but an interest of
such nature that a final decree cannot be made without
affecting that interest, or leaving the controversy in such
a condition that its final termination may be wholly
inconsistent with equity and good conscience
b. Reason For the Existence of Absentees:
i. Plaintiffs decision: P decided not to join the additional persons
or
ii. Lack of Jurisdiction: P could not join them for jurisdictional
reasons or
iii. Refusal by the Absentee: The additional persons refused the
plaintiffs invitation to join
c. Application of Rule 19:
i. Necessary Party under Rule 19a: First assess whether the
absentee is a required party under 19a

51

ii. Feasibility under Rule 19b: Second, if the absentee is

required, the court asks whether she can be joined in the
pending case by discovering if joinder is feasible under Rule 19b
1. Three factors: The feasibility assessment requires the
court to determine three factors
a. Personal jurisdiction: Whether the absentee is
subject to personal jurisdiction
b. Effect on Diversity: Whether the absentee can be
joined without affecting diversity of citizenship and
c. Venue: Whether the absentee once joined, would
have a valid objection to venue
2. Feasible joinder: If the joinder is feasible, the absentee is
ordered to join
iii. Non-feasible Joinder: If joinder is not feasible, the court must
determine whether in equity and good conscience, the court
should take one of two steps:
1. Proceed: The court can allow the case to proceed without
the absentee or
2. Dismiss under Rule 12b7: The court can dismiss the
case under Rule 12b7
c. Necessary Party Test Under Rule 19a1: The absentee will be
required (or necessary) if the present party structure of the case
satisfies any of the three situations in Rule 19a
i. Complete relief prong under Rule 19a1A: The absente
should be joined if without her the court cannot accord complete
relief among existing parties
1. Two Extreme Interpretations:
a. Failure to Resolve Overall Dispute: An absentee
must be joined to avoid multiple litigation
i. Problem: This interpretation is satisfied every
time there is an absentee who will sue after
resolution of the case.
b. Failure to Resolve Present Dispute: Another
meaning is that an absentee must be joined if nonjoinder means that the pending case cannot wrap
things up in the present case
i. Problem: This test will never be met because
no matter what the judgment, it will wrap up
the dispute among existing parties all the
time
ii. Prejudice Test Under Rule 19a1B: The absentee must claim
an interest to the subject of the action and is so situated that
disposing the action without the absentee may create two forms
of prejudice.
1. Absentees interest Under Rule 19a1bi: The court
must decide whether the absentee is so situated that

52

litigating without her may practically impair or impede her

ability to protect the interest
a. Stare decisis effect: Occasionally but rarely, stare
decisis can constitute relevant harm
b. Beneficiary of the Trust: If a plaintiff sues a trustee
but the absentee is a beneficiary, the beneficiary
can be harmed because the money will be in the
plaintiffs pocket
2. Existing Parties Interests: The absentee must be so
situated that not joining her might subject a party to a
substantial risk of incurring double, multiple or otherwise
inconsistent obligations
a. Defendant: The rule probably focuses on the harm
of the defendant because the plaintiff is the one
structuring the case
b. Harm: Only pertains to double, multiple or
inconsistent obligations
i. Inconsistent obligations are created when
two or more orders put the defendant in
apposition in which she cannot satisfy one
order without violating another
ii. Multiple Litigation is Not Harm: The Rule is
not aimed at multiple litigations so the party
structure only threatens the defendant with
multiple suits, its not enough
d. Feasibility Test Under Rule 19a2: The court must order a required
party to be made a party
i. Three Factors of Feasibility: To find whether an absentee can
feasibly be joined in the pending case, the courts will look at
three factors.
1. Service of process under Rule 19a: Absentee must be
subject to service of process and pass personal
jurisdiction
2. Proper Venue under Rule 19a3: If the absentee objects
to venue and the joinder of the absentee would make
venue improper, court must dismiss the absentee from
the case
3. Subject Matter Jurisdiction under Rule 19a: The
joinder will be feasible if the joinder of the absentee will
not deprive the court of subject matter jurisdiction
a. Assessing Subject Matter Jurisdiction: Since SMJ
attaches to the claim, the claim asserted by or
against the necessary party must be assessed for
SMJ
b. Alignment test: Once the court determines the
absentee should be joined, it must align the
53

absentee in the pending litigation and find if it

should be joined as a defendant or plaintiff. This
depends on whether the absentees interest is
more closely aligned with the plaintiff or the
defendant.
ii. Rule 19a and Rule 24a2 test: An absentee who qualifies for
intervention of right under Rule 24a2 will also be a necessary
party under Rule 19a1Bi
iii. Supplemental Jurisdiction: Supplemental jurisdiction may
help facilitate joinder of absentees under Rule 19 if they are
brought as additional parties to a counterclaim or cross-claim
but does not help when the absentee is directly brought under
Rule 19.
iv. Amendment: If joinder is feasible, the court can give the
plaintiff an opportunity to amend her complaint to add the
absentee but if the plaintiff fails to do so, Rule 19a2 makes a
mandatory court order that the absentee is made a party
e. Courts Discretion Under Rule 19b: If joinder is not feasible, the
court must decide whether it can proceed without the absentee or
dismiss the pending case
i. Standard under Rule 19b: If a person to be joined cant be
made a party, the court must determine whether in equity or
good conscience the action can proceed without him or
whether the action should be dismissed
ii. Difference with 19a: While Rule 19as assessment asks the
court to determine what harm might occur if the absentee is not
joined, Rule 19b asks whether the harm really will occur
iii. Non-Exclusive Factors Under Rule 19b
1. Prejudice to All Parties Under Rule 19b1: The extent
to which judgment rendered without the absentee might
prejudice that person or existing parties
a. Determination: The court can either determine
whether the plaintiffs claim is likely to result in
either harm or if the absentee or defendant can
avoid the harm by taking some sort of action
(impleader or interpleader)
2. Lessening or Avoiding Prejudice Under Rule 19b2:
The court considers whether any prejudice can be
lessened or avoided in three forms of actions:
a. Shaping relief: If the court can shape relief
b. Protective provisions: If the court can lessen
prejudice with protective provisions in the judgment
or

54

c. Other measures: If the court can have other

measures to avoid or lessen potential harm to the
absentee
3. Adequacy of the Judgment Under Rule 19b3:
Whether the judgment can be adequate without the
absentee
a. Goals of 19b3: It balances the goal of avoiding
harm to the absentee and the defendant and also
the interests of courts and the public in complete,
consistent and efficient settlements
4. Adequacy of Plaintiffs Remedy Under Rule 19b4:
Whether P would have an adequate remedy if it was
dismissed.
a. Determination: Courts look to whether the plaintiff
has an adequate alternative forum in the event of
the dismissal
iv. Claim splitting: Claim splitting is not allowed
f. Procedure for Compelling Joinder:
i. Pleading the Reasons for Non-Joinder: In the complaint, P
must set forth the names of all necessary persons who could not
be joined and reasons for their non-joinder under FRCP 19c
ii. Defendant Raising Rule 19 Concerns: D can assert the issue
of non-joinder of necessary parties through a motion to dismiss
in FRCP 12b7, through an answer, or a motion to join a
necessary party
1. Waivable: Failure to object may constitute waiver
iii. Absentees Actions: If the absentee is a necessary party, she
can join in the case on her own volition through intervention
iv. Joinder of Necessary parties if Feasible: If P failed to join
necessary parties, the court will order that they be joined unless
its impossible to do so
1. Involuntary P: If the absentee should be aligned as a P, he
may be joined as an involuntary P under FRCP 19a2
2. Numerous Necessary Parties Under Rule 19d: It is possible
that the case may be handled as a class action
3. Venue: If addition of the necessary party would make
venue improper, the added party must be dismissed if she
objects to venue then the court must decide whether to
dismiss
v. Waiver of Right to Compel Joinder: Non-joinder of an
absentee should be raised at the earliest possible opportunity or
delay may constitute the right to compel joinder
1. Raising Non-Joinder of Indispensable Parties Under Rule
12h2: If absentee is indispensable: his non-joinder can be
raised at any time by pleading or motion, even during trial

55

2. Failure to Raise a Defect: The failure of parties to raise the

defect is not a waiver of the absentee because the
judgment is not legally binding on her since shes not a
party
g. Joint Parties: Joint tortfeasors are not necessary parties under Rule
19
h. Co-Obligors: Under Rule 19, co-obligors may be necessary parties but
are not indispensable
i. Action to set aside a Contract: An action to set aside a
contract requires the joinder of all parties
ii. Cause of Actions:
1. Equity actions: In equity actions to determine the rights of
the contract, joinder is required
2. Money damages: Joinder is not required
4) Cases
a. Joint Tortfeasors:
i. Temple v Synthes: Plaintiff underwent surgery and device
screws broke off inside the plaintiffs back so the plaintiff sued
the hospital and doctor for negligence and the manufacturer for
defective design of the device. Defendant filed motion to dismiss
for failure to join necessary parties
1. Rationale:
a. Tradition: There is a strong tradition of allowing the
parties themselves to determine who shall be a
party, what claims shall be litigated and what
litigation strategies will be followed
b. Co-Obligor Under a Verbal Contract: A jointly and severally liable
co-obligor under a verbal contract is not an indispensable party
i. Daynard v Ness: The plaintiff studied much of his career on
how to defeat the tobacco industry. The plaintiff provided advice
to the defendant but gave no written contract of compensation
and only shook hands and agreed to pay 5 percent of attorneys
fees. The defendant won and received millions of dollars and
paid the plaintiff nothing
1. Rationale:
a. Possibility D may bear the entire bill unless second
Ds are joined: Does not make 2nd Ds necessary
under joint and several because P has the right to
satisfy his whole judgment by execution against
one of the multiple Ds liable to him
5) Squibs
a. Lopez v Martin Luther King Jr.: A child not named as P, since it
would destroy Ps diversity jurisdiction, was a necessary party since
the child might later have been precluded if a California court found
privity

56

b. Sierra Club v Watt: Although miners' property rights would be

affected, they were not necessary parties
i. Where what is at stake are essentially issues of public concern
and the nature of the case would require joinder of a large
number of persons, Rule 19's joinder requirements would need
not be satisfied

Misjoinder of Parties and Severance (Rule 21), Separate

Trials (Rule 20b and 42b), and Consolidation (Rule 42a)
1) Misjoinder of Parties under Rule 21: If a plaintiff structures the case in
violation of Rule 20a, Rule 21 provides that such misjoinder of parties is not a
ground for dismissal of the suit
a. Motion to Sever Claims: Instead of dismissing the suit, the court
may sever any claim against a party
i. Severance: It results in two or more separate suits. Each will
have its own docket number and result in its own separate
judgments
b. Adding or Dropping a Party: The court may at any time, on just
terms add or drop a party either by motion or sua sponte.
c. Lopez Considerations (NJ): When considering a motion to sever, the
courts may also consider
i. Different issues: Whether the issues sought to be tried
separately are significantly different from one another
ii. Different testimony: Whether the separable issues require the
testimony of different witnesses and different documentary
proof
iii. Prejudice to Non-Movant: Whether the party opposing the
severance will be prejudiced if it is granted and
iv. Prejudice to Movant: Whether the party requesting the
severance will be prejudiced if its not granted
2) Difference from Ordering Separate Trials Under Rule 20b and Rule
42b:
a. Severance under Rule 21: Severance results in TWO (or more)
separate cases with TWO (or more) separate judgments,
b. Separate trial under Rule 20b, 42b: A separate trial is a separate
adjudication of claims that are part of ONE case and a SINGLE
judgment
i. Separate Trials under Rule 42b: The court may order a
separate trial of one or more separate issues, claims, crossclaims, counterclaims or third-party claims.
1. Reasons for Separate Trial Order: The court may order a
separate trial for three reasons:
a. Convenience: The court may order a separate trial
for convenience

57

b. Avoid Prejudice: The court may order a separate

trial to avoid prejudice
c. Efficiency: The court may order a separate trial to
expedite and economize
2. Preserving Right to Jury: When ordering a separate trial,
the court must preserve any federal right to a jury trial.
ii. Protective Measures Under Rule 20b: The court may issue
orders (which include an order for separate trials to:
1. Protecting a party: protect a party against
embarrassment, delay, expense or other prejudice
2. Arising from Non-Assertion of Claim: that arises from
including a person against whom the party asserts no
claim and who asserts no claim against the party
3) Consolidation under Rule 42a: Rule 42a allows a court in which two (or
more) separate cases are pending to consolidate the cases for any or all
purposes
a. Definition: Separate cases will be treated together for whatever
purposes the court deems appropriate.
i. Appropriate reasons: Possible appropriate reasons may be for
purposes of discovery, for motions, for trial or even for all
purposes
b. Requirement: It must involve at least one common question of law or
fact
c. Separate Cases Not Merged: It does not merge separate cases.
They are still separate and will receive separate judgments, even if
consolidated for all purposes.
4) Lopez v City of Irvington: Challenger sued the City and police department
for failure to supervise the K9 unit and an officer who practiced a pattern of
conduct which the officers allowed dogs to maul suspected felons while in
custody and control of the officer. Four separate incidents
a. Rationale:
i. Same transaction: Each of the plaintiffs claims were similar in
nature to indicate a practice
ii. Common question: It does not matter the plaintiffs suffered
different incidents by different cops at different times and the
pattern of practice of excessive force is a common question of
fact central to the claim

Counterclaims (Rule 13a1A and 13b)

1) Claim Joinder by the Defendant: Parties other than the plaintiffs can be
claimants seeking for relief in the pending case.
a. Jurisdictional Elements: Though subject matter jurisdiction must be
satisfied, venue and personal jurisdiction will not be a problem
i. Personal jurisdiction: By filing a suit, a plaintiff has waived any
personal jurisdiction objection to being sued on a counter-claim

58

ii. Venue: Venue dictates the place where the plaintiff can sue the
defendant but does not require a separate assessment of venue
for counterclaims and cross-claims
b. Response from the Plaintiff Necessary: Since counterclaims and
cross-claims are claims for relief, the party against whom they are
asserted must respond just as the defendant responded to the original
complaint, which can either be by motion or answer.
2) Counterclaims Under Rule 13: A claim asserted against an opposing party,
which is a party who has asserted the claim against the former party
a. Party Asserting Counterclaims: Any party against whom a claim is
made may have a counterclaim back against that party.
i. General matter: Generally, most counterclaims are asserted by
the defendant against the plaintiff
ii. Opposing party: Once one party asserts a claim against another,
the two become opposing parties
b. Claim Not a Defense under Rule 13c: A counterclaim is a claim, not
a defense, thus it does not diminish or defeat the recovery sought by
the opposing party.
i. Recovery under Counterclaims:
1. Exceeding Plaintiffs Recovery under Rule 13c: A
counterclaim may exceed the plaintiffs claim.
2. Different Type of Relief: The counterclaim can be for a
different type of relief than the plaintiffs original claim.
ii. Diminishing or Defeating Recovery Sought: In order to
diminish recovery sought by the opposing party, the defendant
could file responsive pleadings or motions instead
c. Pleading Requirement: A counterclaim must be asserted in a
pleading
i. Pleading in an Answer: Since the defendant asserting the
counterclaim has already been sued, the pleading will be in an
answer
ii. Amendment: If the party fails to assert the counterclaim in her
answer, she may be able to amend the answer to support the
claim
d. Supplemental pleadings under Rule 13e: If Ds counterclaim does
not mature until after D answered, 13e allows D to assert the claim by
supplemental pleadings
e. Counterclaim Against the United States Under Rule 13d: The
Rules under Rule 13a does not expand the right to assert a
counterclaim or to claim a credit against the US or a US officer or
agency
f. Joining Parties to a Counterclaim Under Rule 13h: Rule 19 and
Rule 20 govern the addition of a person as a party to a counterclaim
g. Separate Trials Under Rule 13i: If the court orders separate trials
under Rule 42b, it may enter judgment on a counterclaim under Rule

59

54b, if the court has jurisdiction, even if the opposing partys claims
have been dismissed or resolved
3) Exam Topics:
a. Subject matter jurisdiction: Since Rule 13a1 only provides a
procedural mechanism for asserting the claim, the claim must assert
federal subject matter jurisdiction as well.
i. Compulsory counterclaim: It is deemed ancillary to Ps claim
and therefore within supplemental jurisdiction
ii. Permissive counterclaim: SMJ requirements must be satisfied
on some independent ground of federal jurisdiction
b. Venue: Counterclaims have no effect on venue. The venue statutes
regulate where the action may be brought and this refers solely to
where P filed her complaint
c. Pleading: The sufficiency is tested by the same pleading rules as a
complaint
i. Form under 13a: The counterclaim must set forth as a part of Ds
answer rather than a separate pleading
ii. Caption: A counterclaim must be labeled as such and a reply to
a counterclaim by P is mandatory only if it is denominated. FRCP
7a3
iii. Plaintiffs reply: A responsive pleading by P is required to a
counterclaim labeled as such. It can rely on denials, affirmative
defenses, or ever a counterclaim to the counterclaim
1. Ds motion to Ps reply: D can attack the reply by a motion
for judgment on the pleadings or motion to strike under
FRCP 12
d. Voluntary dismissal: FRCP 41a2 provides that once a counterclaim is
asserted, P cannot dismiss the action without Ds consent
e. Statute of Limitations: Based on Erie, so state law is used
4) Compulsory Counterclaim under Rule 13a1A: A compulsory counterclaim
is a claim arising out of the same transaction or occurrence as the opposing
partys claim.
a. Mandatory: If a party fails to assert a compulsory counterclaim in the
pending case, the party loses the claim and cant assert it in another
proceeding. It is a bar in state court and federal court
b. Requirements:
i. Same Transaction or Occurrence: The claim must arises out
of the transaction or occurrence that is the subject matter of the
opposing partys claim and
1. Landlord Action in Tenancy: Any issue arising during a
tenancy that is based on any action by the landlord, must
be pled as a counterclaim, whether its related to the
landlord-tenant relationship or not
ii. No Required or Necessary Parties: The claim cannot require
the presence of third parties over whom the court has no
jurisdiction (Invokes Rule 19 requirements)

60

c. Exceptions: A counterclaim is not compulsory if

i. Required or Necessary Parties: If the counterclaim implicates
non-parties who should be joined but cannot be joined, it is not a
compulsory counter-claim
ii. Pending lawsuit: There is a pending lawsuit against the party
about that claim already
iii. Lack of Jurisdiction: If the court has not established its
jurisdiction and you dont have to assert a counter-claim that
would submit you to the jurisdiction of the court
d. Non-triable Claims: Even though if the partys compulsory
counterclaim may not have been triable by an associate circuit judge,
the plaintiffs are not relieved of their obligation to file it
e. Timing: Compulsory counterclaims can be raised at any time before
trial
i. After trial: Once the parties go to trial, the claim can become
prejudicial
5) Permissive Counterclaim Under Rule 13b: A counterclaim that does not
arise from the same transaction or occurrence 13b.
a. Optional: If Ds actions against P are unrelated to the claims set forth
in the complaint, it is optional for D to assert them in a counterclaim
b. Claims Joined: Rule 13b allows the defendant to join in the pending
case any and all claims she may have against the plaintiff, regardless if
they are unrelated
c. Rule 18a is Pointless in Counterclaim Situation: If the defendant
has claims against the plaintiff that do arise from the same transaction
or occurrence, she can assert them under Rule 13a1, but if she has
unrelated claims, she can assert them under Rule 13b. Thus, Rule 18a
gives the defendant nothing Rule 13b does not
d. Supplemental Jurisdiction: Since permissive counterclaims doesnt
arise from the same transaction or occurrence, it generally will not
invoke supplemental jurisdiction since it only attaches to claims that
are part of the same case or controversy as an underlying claim
i. Possible Supplemental Jurisdiction: Supplemental jurisdiction is
possible because 1367a is broader than transaction or
occurrence
6) Podhorn v Paragon: The plaintiff-landlord sued the defendant-tenant for
rent and the plaintiff did not file a counter-claim and there was a default
judgment. The plaintiff sued for multiple claims and the defendant motioned
to dismiss claiming it should have been filed as a counter-claim and thus it
must be waived
a. Rationale:
i. Same transaction or occurrence: Plaintiffs claims arise out of the
same transactions that gave rise to the defendants rent action,
which was the plaintiffs tenancy

Cross-Claims (Rule 13g)

61

1) Cross-claims Under Rule 13g: When a party asserts a claim against a coparty and the claim arises from the same transaction or occurrence as the
original action or counterclaim
a. Requirements: In order to create a cross-claim, two requirements
must be present
i. Co-parties: There must be co-parties on one side of the case
ii. Same Transaction or Occurrence: The claim against the co-party
must arise from the same transaction or occurrence as the
original action or of a counterclaim therein
b. Co-Parties: Co-parties are parties that are on the same side of the
case. If there are multiple parties on either side of the case, they are
co-parties with each other.
i. Plaintiffs Original Structure Under Rule 20a: The existence
of co-parties depends on the plaintiffs original structuring of the
suit under Rule 20a.
ii. General Cross-claim: The basic cross-claim must be against a
co-defendant.
iii. Cross-Claimant Adding Parties under Rule 13h: As with
counterclaims however, the cross-claimant may add new parties
against whom with as claims growing out of the same
transaction
iv. Compulsory Counterclaim: Remember once D2 asserts a
cross-claim against D1, the two become opposing parties and if
it arises out of the same transaction or occurrence, D1 must
assert a compulsory counterclaim or lose it
c. Permissive: All cross-claim are permissive and a party is not required
to file the cross-claim in a pending case and if she wishes to, she may
choose to assert it in a separate case
i. No Compulsory Cross-Claims: There is no such thing as a
compulsory cross-claim
ii. No bar: A party who doesnt bring a cross-claim under 13g will
not be barred by res judicata, waiver or estoppel from asserting
the claim at another time
d. Indemnity or contribution: A cross-claim can include a claim against
a co-party that is liable for indemnity or contribution on the plaintiffs
claim.
2) Subject Matter Jurisdiction: Subject matter jurisdiction must be satisfied
a. Supplemental Jurisdiction: Since cross-claims relate to the transaction
of an existing action, it is within the supplemental jurisdiction of the
court
3) Pleading:
a. Form as Part of Answer: A cross-claim should be set forth as part of Ds
answer rather than as an independent pleading
b. Responsive pleading under Rule 7a4: The co-defendant against whom
the cross-claim is asserted must file an answer to cross-claim

62

4) Joining Parties to a Cross-Claim Under Rule 13h: Rule 19 and Rule 20

govern the addition of a person as a party to a cross-claim
5) Separate Trials Under Rule 13i: If the court orders separate trials under
Rule 42b, it may enter judgment on a cross-claim under Rule 54b, if the court
has jurisdiction, even if the opposing partys claims have been dismissed or
resolved

Impleader (Rule 14)

1) Impleader Under Rule 14a: Impleader is a procedure that permits D to
bring into the lawsuit a third person who is or may be liable for all or part of
the Ps claims against D.
a. Permissive: Impleaders are permissive procedures
b. Discretionary: A district court has considerable discretion on whether
to grant a third party complaint
i. Determining If Impleader is Proper: The courts must balance the
benefits derived from the impleader (which are the benefits of
settling related matters in one suit) against the potential
prejudice to P and the 3rd party D
1. Prejudice: Prejudice can be felt by the plaintiff if the need
for additional discovery is outweighed by the benefits of a
more efficient litigation
2. Speculative impleader: Even if impleading is speculative,
it can still be filed because the merits of the third party
complaint are in issue
2) Impleader Under Rule 14a Creates Three Claims
a. Third Party Plaintiffs Claim: The impleader claim asserted by D
against an absentee who may owe her indemnity or contribution on
the underlying claim
b. Original Plaintiffs Claim: The plaintiffs claim against the third party
defendant
c. Third Party Defendants Claim: Downsloping claim asserted by the
third party defendant against the plaintiff
3) Defending Party Requirement: Only a defending party can join an
absentee through impleader. The defendant acts as a Third Party Plaintiff
while the absentee acts as a Third Party Defendant
a. Plaintiff as Defending Party Under Rule 14b: The plaintiff can be a
defending party if another party asserted a cross-claim or counterclaim
b. Impleaded Party as a Defending Party Under Rule 14a4:
Someone who is impleaded is a defending party and can implead if she
has a proper claim
4) Timing Under Rule 14a1: The defending party has a right to implead in two
situations:
a. After Serving Answer: The defending party has a right to implead
within 14 days after she serves her original answer to the plaintiffs
complaint

63

b. Motion to Implead: Beyond 14 days, the defending party must make

a motion seeking court permission to implead
5) Type of Claim: The claim must be against an absentee who is or may be
liable to the defending party for all or part of the claim against it
a. Limitation: Impleader is confined to situations in which D has a right
to indemnity, in whole or in part, against the impleaded party. This
includes claim to contribution in some states
b. Indemnity: A duty to indemnify if a duty to hold someone harmless, to
basically pick up a tab for that persons liability in full
i. Right to indemnity: A right to indemnity is based on
substantive law so the federal court must refer to state statutes
or case law
ii. Distinguishing Alternative Liability to P: It is not sufficient
for impleader that the third party D may be liable to P for Ps
injuries; only when the law gives the present D a right to relief in
the form of indemnity from the third party is impleader
permitted
iii. Potential liability sufficient: It authorizes impleader on
anyone who may be liable. Thus its proper before any loss
actually has been paid to D
c. Contribution: Contribution is similar but usually involves a pro-rate
payment by another person
i. Contribution among tortfeasors: If the state allows contribution
among tortfeasors when judgment is rendered against all of
them, the federal court D cannot implead other tortfeasors to
seek contribution since their liability only arises after P obtains
judgment against all of them
d. Full Payment of Judgment Requirement: Some states provides one
cant sue for indemnity and contribution until she has already paid
judgment in full. However, Rule 14a1 allows the early filing of the claim
but does not ripen until the plaintiff wins the underlying case
e. Non-Existent Contribution/Indemnity Claim: If state law does not
allow contribution among joint tortfeasors, Rule 14a1 does not permit
impleader
f. Admiralty or Maritime Jurisdiction Under Rule 14a6: If the
claims within admiralty or maritime, a third party complaint may be in
rem. Thus, a reference to the summons must include a warrant of
arrest, reference to the defendant or third party plaintiff includes a
person who asserts a right under Supplemental Rule C6ai in the
property arrested
i. See 14c1-2 for more Admiralty and Maritime Claims
5) Third party Defendants Claims and Defenses Under Rule 14a2: The
absentee joined by the impleader has six possible types of actions
a. Compulsory Actions Under Rule 14a2:
i. Defenses: TPD must assert any defense against the third partyplaintiffs claim under Rule 12
64

6)

7)
8)

9)

ii. Compulsory Counter-claims: The TPD must assert any

counterclaim against the third party plaintiff under Rule 13a
b. Permissive Actions Under Rule 14a2:
i. Defense Against Present Plaintiff: the TPD can assert against the
original plaintiff any defense that the third-party plaintiff has to
the original plaintiffs claim
ii. Same Transaction or Occurrence: The TPD may assert against
the original plaintiff any claim arising out of the transaction or
occurrence that is the subject matter of the original plaintiffs
claim against the third party plaintiffs
iii. Cross-claims Against Other Third Party Defendants: The TPD can
assert any cross-claim against another TPD
iv. Counterclaim Against Third Party Plaintiff: The TPD can assert
any counterclaim against the third party plaintiff
Plaintiffs Claims Against a Third Party Defendant: The plaintiff can
assert against the third party defendant any claim arising out of the
transaction or occurrence that is the subject matter of the plaintiffs claim
against the third-party plaintiff.
Motion to Strike, Sever or Separate: Any party can move to strike the
third party claim, sever it or try it separately
Jurisdictional Issues:
a. Personal Jurisdiction: Under Rule 14a1, the TPD must be served with
summons and a third party complaint and must pass personal
jurisdiction
i. Bulge Rule Under 4k1B: The TPD can be served outside the
forum state, even in the absence of a state long arm statute, so
long as she is served within 100 miles of the federal court house
in which the case is pending
b. Supplemental Jurisdiction Over Related Claims: In federal court,
the court has supplemental jurisdiction to adjudicate a claim by the
original D for his own injuries when joined with a claim for indemnity
i. Diversity actions: No supplemental jurisdiction over a claim by
the original P against the third party D even if it arises out of the
original transaction
c. No Effect on Venue An impleader claim is usually ancillary to the
main claim and has no effect on venue requirements.
Subrogation Claims
a. Gross v Hanover:
i. Subrogation: Third party impleader practices encompasses
subrogation claims
1. Subrogation: The substitution of one party for another in
assuming the first partys rights and obligations
ii. Impleader requirements:
1. Someone who is not already a party
2. Claim against a new party: Theory of liability, not a
blanket statement

65

3. Claim against new party must be for all or part of original

Ps claim against original D
10)

Squibs
a. US v Olavarrieta: Rule 14a only allows D to assert a claim on
someone not a party to the original complaint only if the third party's
liability is in some way dependent upon the outcome of the main claim
i. It does not let D assert a separate and independent claim
though the claim arises out of the same general set of facts as
the main claim

Intervention (Rule 24) and Interpleader (Rule 22)

1) Intervention: Intervention is a procedure whereby a non-party, upon timely
application, may become a party in the lawsuit to protect her interests in that
action
a. Balancing tests: Whether intervention is allowed depends on two
policies
i. Ps should be allowed to be master of his action in the sense
joining such parties with him or against him as he wishes and
ii. That other interested parties and the court have an interest in
avoiding multiplicity or litigation or inconsistency of result
b. Effect: An absentee brings herself into a pending case
c. FRCP 24 Types of Intervention
i. Intervention of Right: The court must allow the absentee to join
(24a)
1. Mandatory: Court must allow the absentee to join
ii. Permissive Intervention: The court has discretion to allow the
absentee to join (24b)
2) Intervention of Right: Intervention is granted as a matter of right where a
federal statute confers an unconditional right to convene or whether the
applicant claims an interest relating to the property or transaction that is
subject of the action and is so situated that disposition may impair or impede
the applicants ability to protect that interest
a. Qualification
i. By statute: Under 24a1
ii. Absence of statute: 24a2
1. To protect intervenors interest
a. If she claims an interest relating to the property or
transaction that is subject of the action and
b. That she is so situated that disposing of the action
may as a practical matter impair or impede the
intervenors ability to protect its interest
c. Third possible requirement: The absentee will not
have a right to intervene if an existing party
adequately represents her interest

66

3)

4)

5)

6)

i. Factors: Amount at stake, ability and

resources, existence of a conflict with
interest
Permissive Intervention: Whether to permit the absentee to intervene is
addressed to the discretion of the court
a. Qualification
i. By statute: conditional right to intervene 24b1A
ii. If the absentee has a claim or defense that shares with the main
action a common question of law or fact 24b2
b. Broad discretion of the court: The trial court has broad discretion in
granting and denying and a reversal on appeal is almost impossible to
obtain
c. Conditions imposed by court: Court will often condition intervention by
limiting the intervenors claims to those directly involved in the
pending action
d. Timeliness: The motion for leave to intervene must be made in a timely
fashion
Procedure or Timing:
a. The absentee seeking to intervene must serve on all parties
i. A motion to intervene and
ii. Her pleading on intervention
b. On timely application: It must be timely
Effect of Intervention:
a. Subject Matter Jurisdiction: If the action is a diversity action, there is no
supplemental jurisdiction over claims by intervenors or claims by P
against persons who intervene. There must be an independent basis
for federal court jurisdiction to permit assertion of those claims
b. Venue: The intervenor cannot question the propriety of venue in the
original action since her act of intervening is a submission to the court
in question
c. Judgment: Any judgment rendered subsequent to intervention is
binding on the intervenor as if she was a similar party
Absence of one element
a. US v Northern Indiana Public Service Co: A motion to intervene
under FRCP 24a2 must be denied where any of the four conditions of
the rule are absent
i. Motion to intervene under FRCP 24a2s four conditions:
1. Timely application
a. Satisfied: If movant promptly motions after
knowingly or having reason to know its interest
may be adversely affected by the litigations
outcome
2. Interest relating to the property or transaction subject to
the case
a. Interest: Must be legally protected
3. The disposition of the action may as a practical matter
impair or impede his ability to protect that interest and

67

4. The interest is not adequately represented by the existing

parties
ii. Present case: D is the only party with a legal interest because he
is the sole owner of the property
7) Interpleader: A procedural device that allows someone in possession of
property or money to force all adverse claimants to that property to litigate
the ownership of that property in a single proceeding
a. Release of Stakeholder: Once the stakeholders right to interplead is
established and he has deposited the funds or property in court, he can
be released or discharged from litigation; Its up to the adverse
claimants to litigate their claims to the property
b. Multiple Liability: An individual or corporation who is or may be
exposed to double or multiple liability may also initiate the joinder of
parties who have asserted or could assert such claims.
c. Claims: Must be demanding the same thing or obligation
i. Example: Piece of property, a prize or proceeds of an insurance
policy
d. Trial court determination: Must first consider whether there is real
potential for exposure to multiple liability for a single claim
e. Procedure: The party against whom claims are being made may
institute the interpleader action himself or may interplead in any action
pending. If he is named as D, he may interplead by filing a counterclaim
f. Types of Interpleaders:
i. Statutory Interpleader 28 USC 1335: if
1. Two or more claimants of diverse citizenship are making
adverse claims to the same debt owed or held by P and
2. The debt and instrument has a value over 500
ii. Rule 22 Interpleader: It permits interpleader in any action that
meets the normal jurisdictional requirements in federal court
g. Erie Doctrine: Whether an interpleader remedy is available is a
procedural matter decided by federal courts

Discovery
Discovery Introduction and Work Product
1) Discovery: Discovery involves simplified non-technical pleadings and
enlarged joinder
2) Introduction
a. Benefits of Discovery:
i. Elimination of surprise
ii. Preserving unavailable testimony
iii. Diminishes importance of pleadings
iv. Focuses the trial on main points of controversy

68

v. Allowing each side to assess strengths and weaknesses to have

a settlement
b. Role of Discovery: To provide litigants with an opportunity to review
all of the pertinent evidence prior to trial
i. Preservation of information that may become unavailable and
ascertain issues that are in conflict
ii. Summary judgment: It helps facilitate summary judgment
iii. Other Roles: It helps reach a settlement and promotes
transparency
1. Settlement: It enables the parties to assess the merits of
their case well before trial
2. Decreases risk of ambush: It reduces the chance of trial
by ambush and facilitates determination upon the merits
of the case
3. Efficient: It reduces the drain on the resources of the court
because discovery educates the parties and often narrows
the scope of the issues in dispute
c. When a party is entitled to Discovery: Rules 26-37
d. 2000 amendment: Narrowed discovery from what is relevant to the
issue in general
3) Work Product: Materials prepared and information developed by or under
the direction of a party or her attorney in anticipation of litigation are subject
to discovery only if the discovering party can show a substantial need and an
inability to obtain equivalent material by other means- FRCP 26b3A
a. Matters protected: The focus of this protection is on the process of
preparing for litigation. It covers any materials prepared in anticipation
of litigation or for trial
i. Possibility of litigation foreseen: If there is absolutely no
foreseeable possibility of litigation at the time the materials are
prepared, then the protection cant apply
b. Showing to justify disclosure: To obtain production that is protected by
work product, a party must make a showing of substantial need and
undue hardship
i. Substantial need: the parties must show that the material
sought is of substantial importance to the case
ii. Inability to obtain equivalent: the party must show that its
unable to obtain the substantial equivalent without undue
hardship
c. Special protection for mental impressions of attorney: If a showing has
been made to justify disclosure, materials containing the mental
impressions of the attorney are given special protection
i. Federal Rules FRCP 26b3B: States that in ordering discovery of
work product, the court must protect against disclosure of the
mental impressions and legal theories of an attorney
d. Difference with Hickman and Rule 26b3:

69

i. Trial preparation by non-lawyers: Hickman only protects work by

lawyers but FRCP includes partys consultant, agent, surety,
indemnitor, insurer
ii. Tangible materials: FRCP only protects documents and tangible
things but Hickman may allow a deposition of the attorney
inquiring into her trial strategies
e. Witness statements: Some statements of witnesses may be subject to
either attorney-client or work product
i. Statements made by party to own attorney: Protected by
attorney-client privilege
ii. Statements by employee of corporation: Attorney-client privilege
applies to communications made in confidence by employees
iii. Statements of non-party witnesses: they are usually held to be
work product
1. FRCP: Witness himself is entitled to a copy of his
statement as a matter of right under FRCP 26b3C
2. Attorney-client privilege: Witnesses interviews are not
covered by attorney-client privilege
iv. Statements made by party to adverse counsel: No privilege
applies
f. Expert Reports
i. Nontestifying Experts: Under FRCP 26b4B, facts known to and
opinions held by non-testifying experts are discoverable only in
exceptional circumstances
1. Reimbursement for fees under 26b4Cii: The court is to
require the discovering party to reimburse the party who
retained the expert
ii. Testifying experts: FRCP allows broad discovery regarding
testifying experts and impose a requirement to provide a written
report that applies to most experts
1. Required disclosure: Without formal discovery request,
each party must identify each person that the party will
call to offer expert testimony under FRCP 26a2A
2. Timing: In the absence of other direction, disclosure must
be made at least 90 days before trial- FRCP 26a2c
a. Rebuttal: Within 30 days after disclosure by an
opposing party, a party may add another expert
intended to offer testimony solely to rebut or
contradict the expert
3. Required report: A party must provide a detailed report
from the expert under FRCP 26a2B
a. Experts covered: Whose duties regularly include
giving expert testimony.
b. Statement of experts opinions: The report is to
include a complete statement of all opinions the

70

expert will express in testimony along with the

basis and data and information
c. Experts qualifications: The report must include th
witnesss qualifications, including publications
preceding 10 years and a list of all cases in which
the expert testified during the preceding four years
d. Experts compensation: Must be shown
e. Supplementation: The report should be
supplemented with new information that is
developed after its submitted- FRCP 26e2
4. Deposition of right: any party has a right to take the
deposition of a testifying expert. Where a report is
required, this deposition may not take place until after the
report is provided- FRCP 26b4a
a. Supplementation: Although not required, a party
has a duty to supplement the deposition testimony
of its expert witnesses- FRCP 26e2
4) Adversary System
a. Hickman v Taylor: Materials obtained by counsel in preparation of
litigation is work product of the lawyer and while such material is not
protected by the attorney-client privilege, it is not discoverable on
mere demand without showing necessity or justification
i. Rule 26b Test: A party is entitled to demand the discovery of
anything that is
1. Relevant to the claim or defense of any party
2. Is not reasonably cumulative or burdensome
3. Not privileged
ii. Attorney work product:
1. Non-discoverable unless
a. Production of those facts is essential to the
preparation of the case
i. Gives evidence of location of certain facts or
ii. Useful for impeachment or corroboration or
iii. Justified if the witness is no longer available
or can only be reached with difficulty
2. When the requested information becomes work product:
When it is no longer a verbatim transcript of what
happened in the interview (if its impossible to remove the
attorneys impressions)
iii. Qualified privilege: It can be subject to discovery if the
discovering party can show a substantial need and an inability to
obtain equivalent material by other means
1. FRCP 26b3A
iv. Matters protected: Any materials prepared in anticipation of
litigation for trial
v. Rationale:

71

1. Not essential: P already knows that the survivors said:

Since they asked for full interrogatories about the events
surrounding the event
2. No prejudice: Plaintiff did not show that denial of the claim
would be prejudice since P can interview the survivors
themselves
3. No necessity: P gave no justification or necessity for
getting the interviews
4. No admissibility: Since nothing the plaintiff could get
would be admissible in court, it is likely only to be used by
Ps attorney (Courts rarely allow parties to get access to
the counsels brain)
5. Decreases fear of repurcussions: The work product
doctrine helps lawyers be more candid with clients
without fear of repercussions
a. Clients would be less forthcoming if they knew you
had to disclose everything they said
6. Lawyer as a witness: The lawyer wont recall the witnesss
exact statements anyway and forcing production of the
interview would be like forcing the lawyer to testify and
act as a witness himself to defend his reputation
5) Refusing Discovery: If the other party refuses to give discovery, the
plaintiff has to show why they are entitled to get it by showing why the
particular information is important
a. Partys options: Party who receive discovery requests who dont want
to comply can either:
i. Object to the request: If the party responding objects, the
requesting party can
1. Abandon or reframe the request or
2. Motion to Compel: They can bring the dispute to the
attention of the court by filing a motion to compel
ii. File a protective order under 26c
b. Motion to Compel under FRCP 37a1: Before sanctions can be
imposed, the party must obtain an order compelling discovery
i. Evasive or incomplete answer: Is treated as a failure under FRCP
37a4
1. Exception:
a. Complete failure to respond: If a party completely
fails to file response to the request or to attend his
deposition, sanctions can be brought immediatelyFRCP 37d
b. Failure to make required disclosures: If a party fails
to make a required disclosure under FRCP 26a or
supplement under FRCP 26e1, the court should
usually exclude undisclosed materials from
evidence and my also impose 37b sanctions

72

i. Grounds for declining sanctions: If the party

has a substantial justification for its failure to
disclose or when the failure was harmless
ii. Need to meet and confer: Before filing a motion to compel, the
party must attempt to meet and confer with the other in an
effort to secure compliance without court action- FRCP 37a1, d
c. Sanctions for failure to comply with order: If sanctions re
authorized because of disobedience, the court has a variety of options
under FRCP 37b2A. Many of them affects the merits of the case
i. Order establishing facts: The court may order that matters
pertinent to discovery be taken as established in favor of the
party seeking discovery- FRCP 37b2Ai
ii. Order disallowing claims or defenses: the court may deny the
offending party the right to present claims or defenses raised in
the pleadings or exclude certain matters of evidence- FRCP
37b2Aii
iii. Dismissal or default: Court can dismiss or default the offending
party and render judgment in favor of the other- FRCP 37b2Av, vi
iv. Contempt: Court can impose contempt sanctions under FRCP
37b2Avii
v. Discretion to select proper sanction: The trial court has
substantial discretion to select a proper sanction
d. Culpability Necessary for Sanctions
i. Due Process Requirements: There are due process limitations on
the power of court to impose sanctions that affect the merits
1. The party must be able to comply
2. The misconduct must be related to the merits
ii. Willfulness, bad faith or other fault: The court looks to see if the
party was guilty of willfulness, bad faith or other fault in
connection with the failure to comply with the courts order
iii. Loss of ESI: A federal court may not impose Rule 37 sanctions for
failure to produce ESI that was lost due to routine, good faith
operation of an electronic information system. A preservation
obligation may require a party to modify or suspend routine
operation of its information if that operation can destroy
discoverable information after it has notice to the claim- FRCP
37e
e. Imposition of Costs of Discovery Proceedings
i. Motion to compel: The court will require the losing party to pay
the other side the cost of making or defending against the
motion to compel FRCP 37b2C
ii. Failure to obey order: The court may be required to pay the
moving party the cost of seeking sanctions + the sanction FRCP
37b2C

73

iii. For failure to attend deposition: FRCP 30g1 authorizes the

imposition of costs for a failure of a party to attend a deposition
HE scheduled
6) Appellate Review: Discovery orders are not final judgments and are not
appealable

Scope of Discovery
1) Scope of Discovery: Discovery may inquire into all information that is not
privileged but is relevant to the claim or defense, whether or not the material
would be admissible for proof. It is sufficient if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence- RCP
26b1
2) Relevance: Whether it is reasonably calculated to lead to the discovery of
admissible evidence. If it will tend to prove or disprove a given proposition
a. Relevant evidence: Any evidence that has a tendency to make the
existence of any fact of consequence to the determination of the action
more probable or less probable than it would without evidence (FRE
403)
i. Fact of consequence: Includes all matters that are pertinent to
the decision of the case. It includes all issues raised by the
pleadings
b. Relations to claims and evidence: The discovery may relate to the
claims or defenses of either party and is not limited to the information
that the discovering party needs to satisfy his own burden of proof
c. Matters not in dispute: Information may be subject to discovery even
though it bears on issues that are not in dispute- FRCP 26b1
d. Information on the credibility of witnesses: may be discovered
e. Financial status: GENERALLY, financial condition is not relevant even
though this information might affect settlement negotiations
f. Exception under Committee Note: Not entitled to use discovery to
develop claims or defenses not already identified in the pleadings
3) Limitation of Disproportionate Discovery Under 26b2C
a. Unreasonably cumulative: If discovery is unreasonably cumulative or
duplicative or if it is obtainable from some other source that is more
convenient or less burdensome
b. Party already had opportunity to discovery
c. Unduly burdensome: In view of the needs of the case, amount in
controversy, limitations on the parties resources and importances of
issues at the stake of the information
4) Moss v Blue Cross Shield of Kansas: When court can find adequate
guidance for the scope of a broad discovery request, then it will require party
to answer it.
a. Relevancy: 26B says a discovery request is relevant if there is any
possibility the information sought will lead to relevant info for the claim
or defense of either party

74

b. When discovery sought appears relevant: The party resisting discovery

has the burden to establish lack of relevancy
i. Relevancy is not readily apparent: Requesting party has to
establish relevancy
c. The party resisting discovery on grounds that it is overly broad and
unduly burdensome: has the burden of demonstrating that the time or
expense involved in responding to the requested discovery is unduly
burdensome, unless the discovery request is unduly burdensome on its
face
i. Burdensome on its face: If it requires the answering party to
engage in mental gymnastics to determine what information
may be remotely required
1. Relating to or regarding to a general category of
documents: are unduly burdensome on its face
2. No guidance: It is overly broad if the plaintiff does not
provide sufficient guidance and the court cannot fashion
its own reasonable guidance
5) Privileged Material: It is excluded from discovery Attorney Client Privilege
a. Requirements
i. Legal advice sought: This privilege applies only to
communications in which legal advice is sought, not business
advice
ii. From lawyer: It only applies to communications seeking legal
advice from a professional legal adviser acting in that capacity
iii. Confidential:
1. Presence of other people: May show that its not
confidential unless the presence of those people are
necessary
2. Eavesdroppers: The privilege is not held to preclude
testimony from an eavesdropper
b. Other Communication Privileges: Other privileges protect other
communications from disclosure
i. Spousal communication
ii. Doctor-patient
iii. Psychotherapist-patient
iv. Priest-penitent
c. Specificity of privilege claim: If a party withholds information from
discovery on the grounds of privilege, it should describe the materials
withheld with sufficient specificity in order to enable other parties to
assess the applicability of the privilege- FRCP 26b5A

Tools and Techniques of Discovery

1) Tools of Discovery: Each party has six tools for discovery.
2) Mandatory Initial Disclosures 26a: The Federal Rules have provided for
required disclosures in which each party must make even though nobody

75

asks for them. Each party must produce information at three stages of
litigation.
3) Required Initial Disclosures Under Rule 26a1: Rule 26a1 provides for
disclosure of certain information before commencement of formal discovery
a. Types of Required Initial Disclosures:
i. Preliminary information: Name, address, and phone number
of each person likely to have discoverable information, along
with subjects of that information, that the disclosing party may
use to support its claim or defenses, unless the use would be
solely for impeachment
ii. Copy of description of supporting documents: A copy (or
description by category and location) of all documents ESI and
tangible things in the possession or control of the disclosing
party that she may use to support her claims or defenses
(unless impeachment)
1. May use: It is not limited to use at trial. It can be anything
used in connection with any motion or pre-trial conference
iii. Computation of damages: P must provide a computation of
damages claimed and evidentiary material on which
computation is based
iv. Insurance agreement: D must identify any insurance
agreement under which the insurer may be liable to satisfy all or
part of the judgment
b. Exceptions to Required Initial Disclosures Under Rule 26a1B:
There are certain types of cases exempt from initial disclosures
i. Review: An action for review on an administrative record
ii. Forfeiture Action: Forfeiture action in rem arising from a federal
statute
iii. Habeas Corpus and Conviction Challenges: A petition for habeas
corpus or any other proceeding to challenge a criminal
conviction or sentence
iv. Pro se Plaintiff in Custody: An action brought without an attorney
by a person in the custody of the US, a state or subdivision
v. Summons or Subpoena: An action to enforce or quash an
administrative summons or subpoena
vi. Benefit Payments: An action by the US to recover benefit
payments
vii. Ancillary Proceeding: A proceeding ancillary to a proceeding in
another court
viii. Arbitration Award: An action to enforce an arbitration award
c. Early conference of counsel: Counsel must meet and confer as soon
as practicable after the suit is filed to discuss the nature and basis of
the claims and defenses, issues preserving discoverable information,
and develop a proposed discovery plan and specify materials to be
included FRCP 26f2

76

d.

e.

f.

g.

h.

i. Plan presented to the court: The discovery plan is to be

presented to the court in writing within 14 days or orally at the
courts scheduling conference pursuant to Rule 16
ii. No formal discovery until meeting: Unless stipulated or by court
order, no formal discovery until FRCP 26f conference is
completed
1. Exception of Witness Leaving Country: A party may take a
deposition earlier if the witness is expected to leave the
country and may be unavailable for deposition in this
country unless examined before the meeting FRCP
30a2A
Timing of disclosures: made at or within 14 days after the meeting
of the counsel pursuant to 26f or unless otherwise agreed by the court
(26a1C)
i. Before 16b conference: The conference must occur at least 21
days before the 16b conference
Disclosure of materials disclosing party may use: Pre-discovery
disclosure is required regarding witnesses and documents that the
disclosing party may use to support its claims or defenses
i. Impeachment materials are excluded: Materials a party would
solely use for impeachment
ii. Categories of cases exempted: Some categories under FRCP
26a1B are exempted from the disclosure requirement and the
accompanying attorney conference and discovery moratorium
provisions
iii. Objection suspends duty to disclose: If a party objects during the
conference that disclosure is not appropriate and states that
objection in the Rule 26f report to the court, the obligation to
disclose is suspended until the court rules FRCP 26a1D
iv. Disclosure by later added parties: A party first served or joined
after the 26f conference must make its disclosure within 30
days- FRCP 26a1D
Signature: (26g1A) Every disclosure must be signed by at least one
attorney. The signature represents that to the best of the lawyers
knowledge, formed after a reasonable inquiry, the disclosure is
complete and correct at the time made
Duty to supplement: If a party learns the disclosures were incorrect
or there is additional information, party must supplement the
disclosures (26e1)
Discovery Sanctions Under 37a1: a party must obtain an order
compelling discovery
i. Sanctions: Under 37c, there is an automatic sanction for failing
to disclose under 26a
ii. Exemptions of certain cases: 26a1B
1. Objections: Obligation is suspended until court rules on
objection 26a1D
77

2. Person first served or joined after 26f conference: Must

make disclosure with 30 days (26a1D)
4) Required Disclosures of Expert Witnesses Under Rule 26a2:
a. Timing: Information must be produced at least 90 days before trial date
26a2cI
b. Failure to produce the information: Sanctions
c. Expert Witnesses: Qualified by knowledge skill experience training or
education and may give opinions at trial
d. Disclosure of identity: Requirement that each party to disclose to each
other party the identity of anyone who may be used at trial to present
expert testimony
i. Two types of experts must be identified:
1. Those who must also provide a written report(26a2b)
a. Expert retained expressly to provide expert
testimony
b. One whose duties as the partys employee regularly
involve giving epert testimony
c. Those who dont need to provide a written report
(26a2c): Any expert not hired or does not routinely
testify as an expert
e. Written Report: Must contain information listed in Rule 26a2Bi through
vi
f. Does not apply to: Consulting experts
7) Discovery Techniques
a. Rules of Evidence
b. Depositions: A deposition is an examination of a witness under oath
in the presence of a court reporter. All parties have a right to be
represented by a counsel at a deposition and counsel may examine
and cross-examine witnesses
i. Usage: Used to question potential witnesses under oath about
their knowledge of and participation in certain events or
circumstances concerning the underlying action
ii. When Timely:
1. Before suit filed: A deposition may be taken before an
action is filed or while an appeal is pending from a final
judgment, but only by leave of court granted for the
purpose of perpetuating testimony based on a showing
that the party seeking to perpetuate testimony is unable
to show the cause of action brought- FRCP 27a
2. Moratorium after commencement of suit: FRCP 26d1
provides that formal discovery of witnesses about to leave
the country must be deferred until after the parties have a
conference under 26f
3. Simultaneous proceedings: All parties may take
depositions simultaneously unless the court directs
otherwise- FRCP 26d2

78

iii. Transcription of deposition: The witness may request the

opportunity to review the deposition testimony and correct any
errors before signing it under the penalty of perjury FRCP 30e1
1. Use of deposition testimony at trial: statements in
depositions are hearsay and are generally inadmissible at
trial
2. Exceptions:
a. Party admissions under FRCP 32a3: Deposition
statements by party-witnesses are admissible
b. Impeachment under FRCP 32a2: A deposition by a
non-party witness that contradicts testimony given
at trial by that witness may be admitted for the
purpose of impeaching witnesses who changed
their story
c. Unavailable of deponent: The deposition may be
used in lieu of her live testimony under FRCP 32a4
iv. Subpoena: The best way to get someone in for a deposition is
getting a subpoena, which holds them in contempt if they dont
show up
1. Issuance of subpoena: At the request of a party, the court
clerk will issue a subpoena commanding the named
witness to appear and give testimony at a designated
time or place. The attorney can also issue a subpoena
under FRCP 45a3
2. Service of subpoena: A subpoena is served on the witness
personally and must be accompanied by a tender of the
fee for one days attendance plus reimbursement for
mileage- FRCP 45b1
3. Place of deposition: A witness may be required to appear
at a deposition at any place within 100 miles of the place
where he resides, employed or transacts business- FRCP
45c3Aii
4. Non-party witness: It is not necessary to serve a subpoena
on an adverse party, or an officer or agent of that party to
compel attendance- FRCP 37d1Ai
5. Deposition of Corporation or Organization: The party
taking the deposition need not identify the individual who
is compelled to give the deposition. She need state only
the matters on which she proposed to examine the
organization and the organization must then designate
the appropriate witness- FRCP 30b6
6. Failure to show up 30g: The witness must pay fees or
expenses

79

v. Reasonable notice: A party wishing to depose someone must

give notice of the deposition, which must she must give written
notice to all the parties of the deposition
1. Form of Notice 30b1: The notice must name the person to
be deposed and indicate the date, time and place of the
deposition
2. Time for notice: Notice must be given a reasonable length
of time in advance of the scheduled date for the
deposition FRCP 30b1
3. Production of documents: The subpoena or notice may
direct the witness to bring along and produce at the
deposition any documents that can properly be sought by
request for production of documents FRCP 30b2
a. Effect of timing: More notice is required though,
which is 30 days- FRCP 30b2
vi. Objections: FRCP 30c2 limits the types of objections that can
be raised in a deposition
1. Limitation on instruction not to answer: A witness may be
instructed not to answer a question to preserve a
privilege, enforce a evidential limitation or present a
motion for a protective order- FRCP 30c2
2. Motion to compel: The examining party may move for an
order of the court compelling an answer- FRCP 37a3Bi
3. Failure to obey the order: If the witness disobeys an order
to answer, the witness may be held in contempt and a
party-witness may be held to other sanctions as wellFRCP 37b
4. Protective order for witness: If questioning is conducted in
an unreasonably oppressive manner, the witness may
move for a protective order limiting or terminating the
examination- FRCP 30d3
5. No waiver: Failure of the witness to object to a question
on deposition does not constitute a waiver of her right to
object to the same question or answer at trial- FRCP 32a1,
b
6. Exception matters of form: Errors in the taking of a
deposition that might be cured if promptly presented but
which were not, may not be raised as grounds for
exclusion of the deposition evidence at trial. This includes
objections to the form of questions or answers or in the
manner of taking deposition- FRCP
a. Exception matters of form: Errors in the taking of
a deposition that might be cured if promptly
presented but which were not, may not be raised as
grounds for exclusion of the deposition evidence at

80

trial. This includes objections to the form of

questions or answers or in the manner of taking
deposition- FRCP 32d3B
vii. Amount of depositions: No one can be deposed more than
once in a case unless the court ordered an additional deposition
30a2Aii
1. Limits of 10 depositions each case 30a2Ai
2. Limit per side: The 10 deposition limit is not per party but
calculated cumulatively for Ps, Ds, and third party Ds
3. Witness: The rules provide that a given witnesss
deposition may be taken only once
4. Change by stipulation or order: the parties may stipulate
to vary the deposition limitation and the court may so
order
viii. Amount of time: A single day of no more than 7 hours FRCP
30d1
ix. Questioning other than Oral:
1. Deposition on written questions: FRCP 31 allows a
deposition on written questions
2. Deposition by telephone: If parties stipulate in writing,
depositions by telephone is allowed- FRCP 30b4
x. Advantages:
1. Follow up on new information revealed
2. Less scripted
3. Available for use at trial
4. Non-parties can be deposed: after being subpoenaed
5. No supplemental requirement: If new information is found
later
xi. Disadvantage: Expensive
c. Interrogatories: Written questions may be submitted to an opposing
party and must be answered in writing, under oath and returned within
the specified time period 33
i. Parties: It can only be sent to other parties
ii. Business records option: 33d allows an interrogatory that
provides business records option
iii. Presumptive limit: Each party may serve one set of a max of 25
interrogatories on each other party in the case 33a1
iv. Supplementation: Requirement to supplement with new
information
v. Advantage:
1. Cheap to draft and admissible at trial
2. Get detailed/non-controversial information
vi. Disadvantage:
1. Skillfully crafted and not spontaneous
2. No follow up question
3. Lawyers delay until they are compelled by a judge

81

d. Production: any party may request another party to produce

documents and things and may inspect and copy those documents and
things before returning them to the producing party 34
1. Production: Can include turning over a copy of the
requested information or making it available at a specified
time and place
2. Materials: Must be in the possession custody or control of
the party whom request is made
a. Document: Broadly construed and can be deemed
as inspection
3. ESI: Is allowed
a. Form of ESI: A party requesting for production of
ESI can specify the form in which ESI is produced
34b1C
b. Objection: A responding party may object to the
requested form for ESI 34b2D
4. Request: The party making the request drafts a request
under 45b1: It must be set with reasonable particularity
a. Response: Party must respond within 30 days of the
service and must either indicate the inspection will
be allowed or assert objections
5. Subpoena limitation: Modern Rule allows a party to
subpoena document even from a non-party in conformity
with the requirements for a subpoena
6. Supplementation: Requirement to supplement with new
information
7. Advantage: May document request from non-parties and
has a broad scope
8. Disadvantage: Difficult to balance over and under
inclusiveness
ii. Examinations under Rule 35: Physical and/or mental
examination of a person may be requested when the person's
condition is in controversy and the person to be examined is
given proper notice
1. Necessary elements:
a. Court approval
b. Showing of good cause
c. Affirmative showing: That each condition as to
which examination is sought is really and genuinely
in controversy
2. Request: Must give medical reports if requested
iii. Admissions under Rule 34: Usually question and answer
statements
1. Limitation: There is no limit
2. Advantage: Once admitted, it is unable to refute and it is
considered for trial purposes

82

a. Exception: Court may allow amending or

withdrawal under Rule 36b
iv. Informal Discovery: refers to any form of extrajudicial research
or inquiry that attempts to obtain facts relevant to the case
1. Examples:
a. Non-party interviews
b. Site visits
c. Exchange of information
d. Requests for information from government
agencies
e. Publicly available records
f. Private investigation
g. Internet research
2. Benefits: Less cost and other party has no notice
3. Disadvantages: May be inaccurate and may violate
professional ethics

Electronic Discovery and Rules of Evidence

1) Electronic Discovery:
a. Electronic Discovery
i. Mandatory Initial Disclosure of electronically stored information:
26a1Aii
ii. Discovery plan under 26f: parties must discuss the preservation
of electronic documents at the early discovery conference and
must develop a discovery plan that addresses "any issues about
disclosure or discovery of electronically stored information,
including the form or forms in which it should be produced"
1. Cost shifting under 26c: Must be discussed
2. Inform duty: You must inform clients about when they
must suspend any ordinary or extraordinary practices that
can destroy digital evidence
iii. Sanctions under Rule 37d: No sanctions if electronic data lost in
good faith as a result of routine, good faith operation of an
electronic information system
1. Good faith analysis: Review of the steps the party took to
comply with its preservation obligation
a. Example: Automatic deletions
2. Safe harbor: It provides a safeharbor that under certain
conditions, insulates a party from sanctions for failing to
preserve certain evidence
iv. Spoilation: party is responsible for preserving information that
they know is important, if they fail or destroy the information
intentionally: Seek sanctions against the party that destroyed
information, or have a cross claims dismissed, and may request
the court to issue a cautionary warning to the jury the d
destroyed relevant information intentionally).

83

v. Teague v Target Corp: A court may issue jury instructions that

allow a jury to draw an adverse inference from a partys
destruction of evidence that is relevant to the claims and
defenses in a case, if the party has an obligation to preserve the
evidence and destroys it with a culpable state of mind
1. Plaintiffs duty: To preserve evidence relating to her claims
and her efforts to mitigate damages
a. Arises: long before the initial pleading
2. Culpable state of mind: Bad faith/knowing destruction,
gross negligence and ordinary negligence
vi. Helmert v Butterball: Discovery of relevant nonprivileged
electronically stored information is limited if the party from
whom discovery is sought establishes that it is unreasonably
cumulative or duplicative or that the burden or expense of the
proposed discovery outweighs its likely benefit
1. FRCP 26b: Allows parties to obtain discovery regarding
any non-privileged matter that is relevant to any partys
claim or defense
a. Request for discovery allowed: Unless it is clear
that the information has no possible bearing to the
claim
b. Foreign/Transnational
i. Foreign discovery: It is less expansive and only have depositions
if witness is unavailable for trial
ii. Transnational discovery: Needs a letter of request to ask for
discovery materials from judge in your court to an appropriate
foreign official
c. Informal Discovery: 26b governs the permissible scope of all formal
discovery
2) Rules of Evidence:
a. Discovery rules are broader than rules of evidence:
i. If evidence sought in discovery is admissible at trial: It is
definitely within the scope of discovery
ii. Relevance: If discovery is reasonably calculated to lead to
admissible evidence it is relevant under 26b1
iii. If Ps only evidence with regard to a particular element is not
admissible: P must use discovery to acquire admissible evidence
of that element
b. Cases usually requires circumstantial evidence: Rarely done with direct
evidence
c. Federal Rules of Evidence on Impeaching a Witnesss Credibility
i. Bias
ii. Contradictory statement
iii. Bad reputation for truth and veracity
iv. Documentation of a conviction for a felony or a crime involving
dishonesty or false statement
v. Prejudice
84

d. Hearsay: a statement, other than one made by the declarant [the

person who makes a statement] at the trial or hearing, offered in
evidence to prove the truth of the matter asserted" Can be written or
oral
i. Even if an out of court statement introduced to prove the truth
of its contents is signed or under oath: It is still hearsay
e. Admissions: Any statement made by the party-opponent. It doesnt
matter if the opponent isnt admitting anything
i. Relevance: It still needs to be relevant
f. Opinion Rule: Normally makes opinions by lay persons inadmissible
i. Fact: You can say it is fact and let the fact finder decide
g. Privileges: Courts look to other sources for the applicable evidence
rules
i. Examples:
1. Attorney-client
2. Priest-penitent
3. Spousal
4. Psychotherapist-patient
3) Squibs
a. ESI Tests
i. McPeek: The more likely it is that ESI contains information
relevant to the claim or defense, the fairer it is that the
responding party pay production or search costs
ii. Zubulake: Cost shifting is potentially appropriate where the
material requested is inaccessible (backup tapes and data
erased, fragmented, damages and is not readily usable)
1. Ultimate balance: must be between cost of production
and importance to request
4) Final Thought:
a. Discovery Main Points: It comes down to breadth, relevance and
hardship
b. Attorneys: Must be careful to craft instructions that can survive
objection and wont get stricken by the judge
i. Broad requests: You can strategically make broad requests and
dial them down but you must be careful
5) FRCP
a. Rules 16, 26-37,

Right to a Jury Trial and Judicial Control of Trial

Outcomes
1) The Right to a Jury Trial
a. 7th Amendment: The right to a jury trial is preserved in civil suits at
common law where the value in controversy shall exceed 20 dollars
i. FRCP
1. Rule 38: Demanding a jury trial
a. Writing: Requires jury demand be made in writing

85

b. Waived: If a party fails to demand one, it is waived

i. If both parties have the right: One party can
override another by waiving their right
2. Rule 39: Court may use its discretion to permit to go to
jury
a. When 7th amendment doesnt apply: Court can use
its discretion
b. Non-binding advisory jury: The jury may hear the
claim and return an opinion that the judge may
accept or reject. If all parties consent, then the
jurys verdict is binding (under court discretion for
the jury)
3. Rule 48: Dictates how many jurors are required
a. Generally: between 6 to 12
b. Unanimity: If 12, it doesnt have to be unanimous
ii. United States Code: 28 USC 1863-1871
1. Plan for jury selection
2. How many names are pulled out
3. Outlines qualifications for a jury: Not a convicted felon or
having pending criminal charges
4. 1866-71: Fees paid to jurors, process of challenging, how
selection records are maintained and how a challenge can
be brought to court
iii. Suits at common law: Distinguished from suits at equity
iv. Preserved: It is not created or granted, so it locks federal courts
into a historical test
b. To have a right for a jury trial: Party must make a timely demand for a
jury trial and then you analyze the constitutional scope
2) Test: First look at whether the claim asserted has a relevant historical
analogue and seond to the nature of remedy sought
a. Historical Analog Theory: Whether the matter would have been tried in
the law courts in 1791 in England
i. Look at similarities and look at the issues of the claim
b. Analysis of the Remedy: Determine whether the remedy P seeks would
have been granted by a court of law or court of equity
i. Common law remedy: Damages, monetary recovery to
compensate the plaintiff
ii. Hybrid cases:
1. Beacon Rule- 7th amendment attaches to issues and not
claims
a. If an issue of fact underlies a claim for legal relief: It
must be tried to a jury, without regard to whether
the overall thrust of the case is equitable
b. If an issue of fact underlies both legal and equitable
relief: Jury
c. Only if the issue of fact underlies a purely equitable
matter: Tried by judge and no jury

86

d. Unless there are imperative circumstances which

we cannot anticipate: Jury issues shall be tried
before the equity issues
e. Order of trial: Ensures the judge will be bound by
the jurys determination of facts
2. Dairy Queen Rule: It does not matter whether the legal
relief is incidental and jury issues are to be tried first,
absent exceptional circumstances the court cant foresee
a. FRCP 53b: Allows a district court to appoint a
special master to aid the jury in calculating
damages
3) Values and Historical Background
a. Right to Jury Trial in Civil Cases in Federal Court
b. Statutory Remedies: With types of claims that existed when a
constitutional guarantee was adopted, the historical inquiry is usually
easy and determinative. But legislation redefines common law rights,
replace traditional claims with new forms, and create novel statutory
rights. Thus, historical analogies are needed
i. When new right is involved: Congress may provide for nonjury trials when the right to be enforced is one not known at
common law and practical considerations justify withholding the
right to a jury in order to assure efficient disposition especially if
initial adjudication and enforcement of the right are assigned to
a federal administrative agency rather than an Article 3 court.
1. When an action on a new statutory right can be initiated
in federal court, the approach requires examining both the
nature of the issues involved and the remedy sought.
a. Remedial inquiry: More important
2. Chauffeurs, Teamsters and Helpers: A plaintiff in an
action against a union for breach of fair representation is
entitled to a jury
ii. Whether a party is entitled to a jury: Depends on whether the
1. Issue is legal or equitable
2. Remedy sought is legal or equitable
4) Jury Selection: Techniques and Purposes
a. Attorney Behavior
i. Summons of the venire: Trial juries are selected from a larger
panel of citizens. Prospective juries are summoned by the court
1. Twelve not required by due process: 12 jurors is not
required by due process clause but 6 is required in a
criminal case
2. Number of jurors in state court civil trials: Depends on
state laws
3. Federal court: 48 provides the court shall seat a jury of
not fewer than six and not more than 12 jurors

87

a. Excuse: Allows the excuse for good cause during

trial or deliberations so long as six steal remains
ii. FRCP 47a: Leaves to judges discretion whether to conduct
examination of potential jurors himself or allow parties or
attorneys to conduct examinations
b. Federal Selection Practice
i. Local plans: Jury selection methods in federal courts now
conform to plans promulgated by local district courts in
conformity with national standards
ii. Fair-cross section required: The national policy requires juries be
selected at random through a fair-cross section of the
community
iii. Voter registration lists: Are used to pick jurors
1. When required: If there is an underrepresented group of a
certain race, color, religion, nationality or economic origin
c. Peremptory Challenges and Discrimination
i. Voir Dire Examination: After the venire has been initially
screened by the court to remove persons who should be
excluded, exempted or excused, prospective jurors are
examined for potential biases
1. Challenge for cause: a party may challenge a prospective
juror if the juror has a financial stake, immediate family,
or sufficient reason that juror is impartial= Unlimited
ii. Peremptory challenge: Each side is entitled to a limited number
of challenges without showing cause
1. Federal courts: 3 peremptory challenges
iii. Constitutional requirements:
1. Systematic exclusion is prohibited: Systematic exclusion
from jury panels of any religious, racial, ethnic or political
group is an unlawful denial of the equal protection of laws
2. Cross-section not required: Jury service can be confined to
certain standards of intelligence
iv. Wrongful challenge: Once D makes a prima facie case that
prosecution used peremptory challenges wrongfully: Burden
shifts to the government
1. Actions are sanctioned
2. Gender Discrimination: Equal protection clause forbids the
use of peremptory strikes to remove jurors on the basis of
gender
3. Racial grounds for exercise: EPC of the 5th amendment
precludes a private party from using peremptory
challenges on the basis of race
4. Batson Rule:
a. Party opposing must show circumstances
surrounding a strike permits an inference the
peremptory challenge was race based

88

b. Burden shifts to the opponent to provide a raceneutral reason

i. Does not need to be persuasive or plausible
c. If prosecution satisfies the burden: incumbent must
prove the use of the strike was motivated by
purposeful discrimination
i. If race neutral reason for striking applies
equally to one whos impaneled: Evidence
can support purposeful discrimination
5. Language barrier: Uphold challenges based on differences
in language but not ethnic origin
v. Rule 38b: Both parties may waive the right to a trial by jury
1. A party must demand a jury trial in writing with regard to
any issue within 28 days of the service of the last
pleading directed to that issue.
5) Squibs
a. Unanimity:
i. Jazzabi v Allstate: jury had to unanimously agree that the
insured was not an arsonist before awarding damages under the
insured contract
b. Complexity: In complex civil cases, Con does not require a jury trial
i. Ross v Bernard footnote factor: The practical abilities and
limitations of the jury
c. Markman v Westview Instruments: When a statute provides litigants a
constitutional right by jury, constitutional analysis is not necessary
d. Discrimination Suits
i. Intentional race discrimination: Trial by jury in suits brought
under USC 1981 but not title 7
ii. Civil Rights Act: Provided trial by jury in intentional employment
discrimination cases

Summary Judgment
1) Summary Judgment Rule 56: There must be no genuine dispute of
material fact and the movant must be entitled to judgment as a matter of law
2) Timing of Motion Under Rule 56b: A motion can be made at any time
until 30 days after the close of all discovery
a. Local rule or court order: can permit a different timing
b. Plaintiff: must wait until 20 days after the commencement of the action
or after service of motion for summary judgment by the opponent
3) Supporting Factual Positions Under Rule 56c: A party can support their
position either by:
a. Record: Citing to particular parts of the record or
b. Lack of evidence: Showing that the materials cited do not establish the
absence or presence of a genuine dispute or that an adverse party
cannot produce admissible evidence to support that fact

89

4) Materials Used in Summary Judgment Under Rule 56c: To support

factual positions, each party can support their assertions by:
a. Particular parts of the record: Including depositions, documents,
ESI, affidavits, declarations, stipulations, admissions interrogatory
answers or other materials
i. Affidavits or Declarations: A written statement executed
under oath
1. Specific Issues: Can be targeted at specific issues or
tailor-made to support summary judgment
2. Requirements:
a. Made on personal knowledge
b. Set out facts that would be admissible in evidence
and
c. Show that the affiant or declarant is competent to
testify on the matters stated
3. Not mandatory: the party does not have to submit an
affidavit for evidence
4. Affidavit or Declaration in Bad Faith Under Rule 56h: If an
affidavit is submitted in bad faith or solely for delay, the
court, after notice and reasonable time to respond, may
order the submitting party to pay the other party
reasonable expenses, including attorneys fees. An
offending party may also be held in contempt and
subjected to sanctions
ii. Depositions and answers: They must be executed under oath
and must satisfy the requirements listed above for affidavits
1. Admissions: Non-verified pleadings may be relevant
because they contain an admission
iii. Verified pleadings Under 56c4: If they meet the
requirements, they are considered the functional equivalent of
affidavits or declarations
1. Pleadings: The opposing party may not rest on allegations
of pleadings in response to a motion. Any mere allegation
in an unverified pleading will NOT be sufficient on a
summary judgment, it would have to be a sworn pleading
(person swears to tell the truth).
a. May be relevant: because they contain admissions
iv. Admissions: Admissions can be considered under Rule 36 or
made at any point in the case
v. Brief for the motion of summary judgment
b. Authentication: Anytime the court considers documentary evidence,
the document must be authenticated
i. Authenticated: The party proferring it must provide admissible
evidence from a person with first hand knowledge sufficient to
allow her to have the document submitted in evidence

90

5)

6)

7)

8)

9)

c. Admissibility Under 56e: Materials concerned in connection with a

motion for summary judgment must be generally capable of admission
into evidence
i. Possible relaxation for the moving party: Although the moving
party must present material that would be admissible, it may be
that the opposing party is not held to such requirements as long
as he can show that he will have admissible evidence at trial
1. Materials need not be in admissible form: Affidavits
usually arent admissible because they are hearsay but
they suffice to oppose a motion for summary judgment
when they indicate the affiant would be able to testify at
trial to the facts recited
a. Thus: Non-moving party need not produce evidence
in a form that would be admissible at trial in order
to avoid summary judgment
ii. Determination of admissibility: Before evaluating evidentiary
materials to determine whether SJ should be granted, the court
can entertain objections to the admissibility of some material
and exclude them from consideration if theyre not material
Postponement of summary judgment Under Rule 56d: A party can
argue saying it doesnt have enough facts yet and judge can postpone it or
dismiss it. The court can take the following steps:
a. Motion; The court can defer considering the motion or deny it
b. Obtaining documents: The court can allow time to obtain affidavits or
declarations or to take discovery
c. Other Order: The court can issue any other appropriate order
Parties that Can Motion: Any party may move for summary judgment. The
claimant can seek it on her claim or a defendant can seek it on his affirmative
defense
Partial Summary Judgment Under Rule 56a: When only some claims or
defenses are ripe for summary judgment, it can be granted as to some but
not all the claims or defenses before the court
Standard: Rule 50 outlines when judgment as a matter of law is appropriate.
Same as directed verdict.
a. Burden of Proof on Issue Raised: Thus it is appropriate to focus on
whether the moving party has the burden of proof on the issue raised
by the summary judgment motion
Case by Case Determination: The courts evaluation must be made on a
case-by case basis
a. All reasonable inferences: The court is to make all reasonable
inferences in favor of the opposing party and to view the evidence in
the light most favorable to that party
b. Court may not weigh the evidence: The court is to determine
whether there is a genuine dispute, if there is, it may not choose
between two versions of events and grant summary judgment to the
party whose version is more pervasive
91

10)

11)

c. Witness Credibility: Witness credibility cannot be assessed in the

summary judgment stage because this is left for the jury
d. Disbelief evidence: Although the jury may ordinarily disbelieve even
an un-contradicted witness, the logical possibility that this belief would
persuade the jury that the truth is actually the opposite of what the
witness claims is irrelevant.
i. Rationale: Allowing such determinations to satisfy the burden
or proof would immunize the trial courts ruling on JMOL from
appellate review since demeanor of witnesses is usually not
preserved on record
ii. Partys story blatantly contradicted by record: When the
version of the facts offered by one party witness is contradicted
by others and also contradicted by unimpeachable evidence in
the record, the court may grant summary judgment because no
jury could reasonably accept the contradicted story at trial
e. Motive, intent and state of mind: If issues of motive, intent or state
of mind are presented, summary judgment is generally inappropriate
Genuine Dispute as to Material Fact
a. Materiality: determined by the substantive law creating the claim or
defense. It is one that might affect the outcome of the case
b. Order Establishing Material Facts Under 56d1: If summary
judgment cannot be entirely granted, the court may enter an order
determining that certain facts are established and this order will
govern the further course of the action
c. Inability to provide responsive materials Under Rule 56f: When
the opposing party is unable to provide opposing materials, the court
may continue the hearing to allow materials to be obtained
i. Showing required: The opposing party is said to be required to
make a showing that continuance is appropriate. 56f allows
continuance for specified reasons in the opposing partys
affidavits
ii. Facts material and important: A continuance is appropriate only
if the additional fats appear important to the disposition of the
summary judgment motion
iii. Facts can be obtained: A continuance is appropriate only if there
is some reasonable possibility that the additional facts the
opposing party wishes to be present can be obtained
Burden of Proof at Trial
a. Role of higher burden of proof: If a party has a heightened burden
at trial, the court should use that higher standard in scrutinizing
evidence at the summary judgment stage
b. Plaintiffs burdens: Plaintiff has the burden of production and
persuasion
i. Persuasion: The conclusions your evidence leads to
ii. Production: All about timing and who can put it first

92

12)

c. Movant has the burden of proof: If the party moving for summary
judgment has the burden of proof raised in the issue of the motion,
summary judgment should be granted only if the evidence favoring the
moving party is of such strength that the jury could not disbelieve the
moving partys evidence
d. Opposing party with burden of proof: If the opposing party has the
burden, summary judgment should be granted only if the opposing
party fails to present sufficient evidence to permit a jury reasonably to
find for him. Thus, unless the opposing party comes forward with
sufficient evidence to support a verdict in her favor, summary
judgment should be entered in favor of the non-moving party
Procedure:
a. Initial Showing: The court should not reach the question whether
there is a genuine dispute until it evaluated the moving partys
showing to determine whether it suffices to justify pretrial scrutiny of
evidence
i. Movants burden: the movant must demonstrate there is no
genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law
1. Moving party with burden of proof: Must prove
evidence that no reasonable jury could find for the
opposing party
a. Definition: The moving party has the burden to
demonstrate the elements
2. Moving party without a burden: A party who does not
have the burden of proof at trial may move for summary
judgment without producing evidence
a. Pointing to Lack of Evidence Under Rule 56c1B: The
movant can show that the record is devoid of
evidence supporting the other partys position
b. Celotex Rules:
i. Mere conclusory assertion: A bald assertion
that the opposing party lacks sufficient
evidence to support his case is not sufficient
ii. Initial responsibility: The movant party has
the initial responsibility of informing the
court of the basis for its motion
iii. Prima facie case: the party must identify
those portions of the record which it believes
demonstrates the absence of a genuine issue
of material fact
iv. Methods of making showing
1. Affirmative evidence: movant can offer
affirmative evidence that negates an
essential element

93

2. Preview of opposing partys case: If

the movant can point to discovery
calculated to elicit from the opposing
party any evidence he had to support
the case and then demonstrate the
evidence is inadequate
3. Possible initial disclosure: The content
of such disclosures may be used to
satisfy the initial showing requirement
by providing a preview of the opposing
partys case
ii. Opposing partys burden:
1. Initial showing not made: If movant did not make an
initial showing, there is no burden on the opposing party
to make a showing
a. No advance determination of sufficiency of initial
showing: If the opposing party is not entitled to
advance notice of the courts attitude toward
sufficiency of the movants showing. Thus, the
opposing party should submit opposing evidence
unless hes absolutely sure of the insufficiency
b. Attacking showing: The opposing party can call the
courts attention to other material in the record that
demonstrates the existence of a genuine issue
2. Initial showing made: Then the burden is on the
opposing party to come forward with evidentiary material
that establishes the existence of a triable issue
13)
Notice: The opposing party is entitled notice of the motion for
summary judgment and an opportunity to submit opposing materials
a. Notice 56c: 28 days
14)
Courts Discretion: The court is never required to grant a summary
judgment
15)
Effect of Summary Judgment: If motion is granted, judgment is
entered if not, the litigation continues
16)
Differences with 12b6 and judgment as a matter of law:
a. Difference with Rule 12b6: It is aimed at the claimants allegations.
It does not look beyond the face of the pleadings
i. Allegations: Court assumes that plaintiffs allegations of fact are
true and plausibly support a claim that the law recognizes. It
does not look at evidence
1. Summary judgment: Courts look beyond the pleadings
and can consider evidence
b. Judgment as a matter of law difference:
i. Timing:
1. Summary judgment: Usually made before trial and D can
move for summary judgment at any time and P can move

94

17)

18)

for summary judgment 20 days after commencement of

the action
2. Matter of Law: Usually made at the close of the evidence
and it may be renewed after a verdict is returned
ii. Nature of material:
1. Summary judgment: based on pre-trial written
submissions
2. Matter of law: based on live testimony and other evidence
presented in a trial
iii. Burden of proof:
1. Summary judgment: Moving party must make an initial
showing to justify scrutiny of evidence
2. Matter of law: Not required for the motions at or after trial
if the moving party does not have a burden of proof
c. Movants: Any party may move for summary judgment
i. A party can move on a claim or defense or on part of each claim
or defense
Extraordinary Remedy
a. Adickes v SH Kress and Co: In an action based on conspiracy,
summary judgment may not be granted unless a D can show that no
evidence thereof exists
i. Burden of summary judgment: On the moving party to
affirmatively show the absence of a genuine issue as to any
material fact
1. A moving party without the burden of proof had to make
as strong a showing as one with the burden of proof to
invoke summary judgment
2. Non-movants burden in initial case: The fact that the
burden would be on the other party on the same fact at
trial is of no matter here.
Focal Point of Litigation
a. Celotex Corp v Catrett: Summary judgment must be entered against
a party who fails to make a showing sufficient to establish the
existence of an element essential to this case and on which he bears
the burden of proof at trial
i. Moving party: The movant only ha the burden to inform and to
identify
1. Duties:
a. Inform: has the initial responsibility of informing the
court of the basis for its motion;
b. Identify: the party must identify those portions of
the record which it believes demonstrates the
absence of a genuine issue of material fact
2. Unclear: How much more than a conclusory assertion this
is designed to require
3. Affidavits: Affidavits made on personal knowledge of
facts, showing that the affiant would be competent to
95

testify to these facts in court, may form the basis of a

ruling on a motion for summary judgment. But, the
moving party is not required to submit affidavits
a. There is no express or implied requirement on Rule
56 that the movant support its motion with
affidavits or other similar materials negating the
opponents claim.
4. Movants additional actions:
a. Can depose witnesses
b. Establish inadequacy of documentary evidence
c. Parties can review admissions and point to specific
admissions and interrogatory responses
ii. Opposing party: The opposing party can call the courts
attention to other material in the record that demonstrates the
existence of a genuine issue
1. Defendant as non-movant: D has the burden of production
to show there is a genuine issue of fact or D has the
opportunity to request additional time
2. Absence of record evidence: Allows defendants to move
for summary judgment on the basis of an absence of
record evidence supporting an element of the plaintiffs
claim
a. Defendant forces the plaintiff to produce evidence
supporting the aspects of her claim: All D has to
say is that P didnt prove her case
iii. Plaintiffs burden: Plaintiff always has the burden of production
and persuasion at trial.
1. Plaintiff as movant: essentially saying judgment is on their
side and D has no evidence at all
iv. Concurrence/Dissent:
1. Concurrence: The party moving for summary judgment
must meet the burden placed on him by the FRCP
2. Dissent: The summary judgment was improper since D
failed to meet this burden of production.
a. Burden of movant: The party moving for SJ has the
burden of establishing the non-existence of a
genuine issue.
b. Two components of the burden:
i. Initial burden of production: Which shifts to
the non-moving party if satisfied by the
moving party
ii. Ultimate burden of persuasion: Which always
remains on the moving party. It never shifts
c. Rationale: D failed to attack the adequacy of the
evidence in its initial requirement and thus
summary judgment is improper

96

19)

v. Extra Notes:
1. Difference with Adickes: Celotex is an easier standard
because all D has to do is poke holes while in Adickes, the
court stated you havent established that there wasnt an
offer in the store and didnt address Ps evidence
a. Celotex requires D to force P to put their whole
case on the table as a preview: All D has to say is
that P didnt prove their case
b. Scott v Harris: A police officer who stops a high speed chase by
ramming a fleeing suspects car does not violate the 4 th amendments
protection against unreasonable seizure
i. Balancing of interests: The need to prevent harm and high
probability P himself would have been harmed by Ds use of
force and the initiator of the occurrence
ii. Two different stories: where opposing parties tell two different
stores, one of which is blatantly contradicted by record, so that
no reasonable jury would believe it, the court should not adopt
that version of the facts for purposes of ruling on a motion for
summary judgment
Squibs
a. Anderson v Liberty Lobby
i. Summary judgment inquiry: functionally similar to a ruling on a
motion for directed verdict. It requires the court to predict what
would happen to the case at the directed verdict stage.
1. Difference between Directed Verdict is in Timing: SJ
happens before you impanel a jury and DV happens
during trial
ii. Non-movant must produce more than scintilla: She must
produce sufficient evidence from which a reasonable jury could
conclude that P failed to show actual malice by clear and
convincing evidence. However, the non-moving party does not
need to provide its evidence, as long as the court points to or
leads to admissible evidence
b. Matsushita Elec Industrial Co v Zenith Radio Corp: Raises
standard for surviving summary judgment to unambiguous evidence
that tends to exclude an innocent interpretation. Where the record as
a whole could not lead a rational trier of fact to find for the non-moving
party, there is no genuine issue of material fact
i. Judge: is still required to consider the quantum and quality of
proof. This inconsistency is not really reconcilable.
ii. Plaintiffs: required to come forward with more persuasive
evidence than would otherwise be required to defeat summary
judgment
1. Determination of Sufficiency: Courts consider The nature
of evidence being presented and the quantity of evidence
being presented
97

2. Party opposing summary judgment: To receive the benefit

of all reasonable doubts as to whether there is a genuine
dispute of fact
3. Doubts: must be reasonable and not speculative when
assessing the non-moving partys position
4. Implausible theory of liability: Is not enough- Courts can
determine how much evidence a non-movant must
produce for summary judgment
20)
Final Thought: The three decisions have led to inconsistencies for
summary judgments and have ultimately led to fewer summary judgments
a. Three Musketeer Cases: These are cases where summary judgment
can and should be used

Voluntary/Involuntary Dismissals and Types of

Verdicts
1) Voluntary Dismissal (41a): The plaintiff has filed a case and now wants to
dismiss it possibly due to a settlement
a. Examples of voluntary dismissals:
i. Lack of jurisdiction
ii. Lack of venue
iii. Failure to join a necessary party under Rule 19
b. Notice of Dismissal:
i. Timing: An effective notice of dismissal must be filed before the
filing of the adversarys answer or motion for summary
judgment
ii. Number of dismissals: The plaintiff is limited to one voluntary
dismissal by notice. Therefore any dismissal operates as a
dismissal with prejudice under FRCP 41a1B
iii. Limitations of voluntary dismissals without a court order
(41a1A):
1. Plaintiff must file a written notice of dismissal
2. The plaintiff may dismiss by stipulation of dismissal by all
parties who have appeared: Thus the P cannot dismiss
without the defendants consent or by court order
iv. Sanctions: Unless the court has already issued an order to
show cause why sanctions should not be imposed at the time of
the voluntary dismissal, it may not impose monetary sanctions
on its own initiative under FRCP 11c5B
c. Voluntary dismissals by court order: (41a2)- In any situation not
covered by 41a1, the court may grant a Ps motion anytime prior to
judgment, even after the trial has commenced
i. Presumption: Presumed without prejudice
ii. When counter-claim is pending: The court should dismiss
against a Ds objection only if the counterclaim can remain
pending for an independent adjudication
98

iii. Number of dismissals: The court is not limited as to the

number of times it may grant motions to dismiss the same
action without prejudice as long as there is a legitimate reason
for the requests
d. Without Prejudice: Voluntary dismissal is without prejudice unless P
previously filed and dismissed the same claim
i. Definition: It means that the claim will not have a res judicata
effect
ii. Conditions of dismissal: If P applies but had this claim
dismissed before, Then the court may award the costs of the
action previously dismissed to the opposing party FRCP 41a2
1. Conflict in fee shifting: Whether this fee shifting includes
attorneys fees for the previously dismissed claim and if
they can whether the court must first give notice of the
appropriate costs or allow Pan opportunity to withdraw
their motion to voluntary dismiss
e. Continuing Jurisdiction- Stipulated Dismissal: When dismissal by
stipulation pursuant to Rule 41a1Aii provides that the court shall retain
jurisdiction to enforce a settlement agreement, the court has
continuing jurisdiction but otherwise dismissal terminates the courts
jurisdiction
f. Applying for voluntary dismissal: P can apply for VD even after the
adverse party answered/motioned for SJ and the court may grant it on
terms the court considers proper
i. Parties that can file a voluntary dismissal: Defendant can motion
for voluntary dismissal of third party claims, counterclaims and
cross-claims
2) Involuntary Dismissal (41b):
a. Provides for dismissal for three cases: Failure of P to
i. Prosecute the case
ii. Comply with FRCP
iii. Or comply with a court order
b. Other cases (41b)
i. Examples:
1. All defenses in 12b: May result in an involuntary dismissal
2. Serious violation of ethical rules: May result in a voluntary
dismissal
3. Serious discovery sanctions
4. Summary judgment
ii. Allows dismissal of an action or a claim: Can dismiss less than
the entire case
iii. Defendant: Can move to dismiss as well
c. Res judicata effect: Involuntary dismissals have res judicata effect
because they operate as adjudication on the merits
d. Without prejudice determination
i. Generally: the claim is distinguished
ii. Three exceptions:

99

1. Court may provide to the contrary

2. If dismissal is based on lack of jurisdiction: It is not
considered to be on the merits
3) Types of Verdicts:
a. Special verdict: Where the judge gives questions to structure jurys
reasoning process
b. General verdict: Yes or no on liability
4) Bifurcation and Trifurcation
a. Bifurcation: (Rule 42b to try parties or causes separately has nothing to
do with bifurcation)
i. Usually into
1. Fault: liability and causation
2. Damages
ii. Bifurcation with two different juries: May violate the 7 th
amendment right to 1 trial judging on same essential issues
1. Only distinct issues: only distinct issues may be separated
without injustice can be separated
a. Example: Liability, damages, causation and
affirmative defenses
2. 7th amendment violation: Is in 2 juries deciding the same
issues and allowing them to reconsider a jury verdict; But
it isnt a violation in having 2 juries review the same
evidence
iii. Arguments for Bifurcation:
1. Efficiency
2. Eliminates emotional prejudice of horrid injuries
3. Good for products liability cases
b. Trifurcation:
i. Usually into
1. Liability
2. Causation
3. Damages
5) Notes on Juries
a. Rule 51 on Jury Instructions
i. Counsel: Judge may require counsel to submit proposed jury
instructions prior to trial and the judge must inform counsel
about the instructions before closing arguments
ii. Issue on appeal: If a judge decides on record not to use a
proposed jury instruction, then the issue is preserved for appeal
1. Objection: An objection is required to preserve point for
appeal
b. Jury Control Mechanisms
i. Rules of Evidence
ii. Summary Judgment
iii. Directed Verdict/JNOV (JML)
iv. New trial motions because verdict is against the weight of
evidence
v. Bifurcation

100

vi. Verdict types

vii. Instructions
viii. New trial motions based on remitter and additur
c. Remittitur: If damages are excessive, a judge may threaten a party to
grant a new trial if they dont agree to reduction in damages
d. Additur: If damages are inadequate, a judge may threaten a party to
grant a new trial if they dont agree to an addition in damages
i. Constitutionality is challenged: because remittitur is included
within the jury verdict ( just excise the excess) but additur was
not included
ii. Usage: When adding liquidated amount of damages like in a
contract or easily calculable interests
iii. If either Additur or Remittitur is refused: The udge can grant a
new trial or new trial just on damages
6) FRCP
a. Rules 12b6, 41, 42, 49, 50, 52, 59, 60

Directed Verdict
1) Directed Verdict (50): Motion for Judgment as a Matter of Law
a. Definition: At trial and based on the evidence, the judge concludes the
jury should not be permitted to determine the facts because there is
insufficient evidence to justify having the jury consider it.
2) Standard: A reasonable jury would not have a legally sufficient evidentiary
basis to find for the non-movant. No dispute to a material issue of fact. Thus,
there must be an absence of evidence or a defect of proof of a crucial
element of the challenged claim or defense.
a. Movant: Must show that just for 1 element, that no reasonable fact
finder would have a legally sufficient basis to return a verdict for the
non-movant.
3) Case-by case Determination: The courts evaluation process must be made
on a case-by-case basis and discussion of given cases should involve careful
examination of the facts presented and inferences of them
a. Presumption: The court must give the non-moving party the beneficial
weight of the evidence. All reasonable inferences must be made in
favor of the opposing party
b. Court may not weigh evidence: The court is to determine whether
there is a genuine issue to present to the jury; It may not choose
between two versions of events and grant JMOL to the party whose
version seems more persuasive
i. Evidence to be considered: The federal rule is that all evidence
presented in light most favorable to the opposing party
4) Usage: It can be used when:
a. No legal claim: The facts are clear but clearly do not satisfy the legal
requirements
b. Non-credible witnesses: If other party witnesses are not credible

101

5)

6)

7)
8)

c. Multiple likely outcomes: If the evidence allows for 2 equally likely

treaties
Burdens
a. Plaintiffs Burdens
i. Burden of production: The plaintiff has the burden to produce
evidence at trial in support of her claim that is sufficiently
persuasive
ii. Burden of proof: The plaintiff must establish that her version of
events is probably more true than the defendants, that a simple
preponderance of the evidence favors Ps version of her events
b. Movant with burden of proof: If the movant has the burden of proof,
judgment as a matter of law is appropriate only if the evidence
favoring the moving party is of compelling strength that the jury cant
find for the opposing party.
c. Non-movant with burden of proof: The motion should be granted only if
the non-movant has no substantial evidence to permit a jury
reasonably to find in its favor
i. Scintilla rule contracted: Under this rule, a party with a scintilla
of evidence would be allowed to have her case presented by the
jury but the federal courts rejected this rule in Galloway
Timing of the Motion:
a. At the close of Ps evidence: D will move for judgment as a matter of
law, arguing P did not satisfy its burden to produce credible evidence in
support of each claim
b. Judges decision
i. If the judge agrees: The judge may withdraw the case from a
jury
ii. If the judge disagrees: D will present evidence to rebut Ps case
or establish affirmative evidence
c. After D rests: D can move again for judgment as a matter of law
i. The motion challenges the sufficiency of both P and Ds evidence
ii. P can also move for judgment as a matter of law at this point,
after D shows his defense
Difference with MNT: Court does not have the power to enter it on its own
but the court has inherent authority to enter the less drastic order of new trial
Difference with JNOV: If a motion for JMOL is made before a verdict but is
denied and the verdict goes against the moving party, the party may make a
motion for JNOV. The motion uses the same standard so it asks the same
question at different times- Whether the case should be or should have been
submitted to the jury
a. Pre-verdict motion as predicate for new motion: In federal court, a
party may not make a renewed motion unless she moved for a
judgment as a matter of law after the opposing party was fully heard
on an issue and before submission of the case
b. Timing of the motion: The rule requires that the pre-verdict motion be
made after the opposing party has been fully heard on the issue raised

102

by the motion, which may be much earlier in the trial, perhaps even
before the opposing party has completed offering all of its proof
c. Deferring decision until after the verdict: Judges presented with
motions for judgment as a matter of law may consider a variety of
factors in deciding whether to defer decision when they find the
motions persuasive
i. Jury will agree: If a judge feels one sides case is so weak that
judgment as a matter of law is proper, it is likely the jury will feel
that way and a jury verdict will be harder to overturn on appeal
ii. Judge may be wrong: If judge grants judgment as a matter of
law and is reversed on appeal, it will be necessary to hold a
second trial, whereas the appellate court may be able to
reinstate the jury verdict if it reverses a post-verdict decision to
grant judgment as a matter of law, and avoid thereby the need
for re-trial
iii. Time savings: By granting a pre-verdict motion, the judge saves
time. This can be before P has even finished its case in chief;
granting the motion in such a case would avoid the time needed
for the reminder of Ps case in chief, for Ds case in chief and
rebuttal evidence
9) Partial JML: The judge can grant a partial JML for some of Ps elements if D
doesnt deny them in his answer or stipulates/admits to them on the witness
stand
10)
No opportunity for a new trial: If evidence P submitted at trial is
found inadmissible and absent that evidence, D is entitled to JML, judge may
enter judgment for D. P does not get an opportunity for a new trial since P
was already heard
11)
FRCP 52 for Bench (Non-jury Trial) Trial: Rule 52 allows a judge to
enter judgment as a matter of law after the party has been fully heard on an
issue and that issue is dispositive in the case
a. No language for legally sufficient evidentiary basis: Because even if
the judge is not persuaded about the legally sufficient evidence, the
judge can enter a Judgment as a Matter of Law.
b. Judge is the trier of fact: So the judge can grant the motion if it finds
Ps proof is unpersuasive
12)
Reasons to make a Motion for Judgment as a Matter of Law
a. Insufficient evidence: insufficient evidence on an element to allow
reasonable people to find it as true
b. Speculation: No one knows what happened so P cant make a prima
facie case
c. No facts: Reasoanble people cant find facts to meet the legal standard
d. Not credible: Reasonable people would not believe the evidence P
presented was credible
e. Inconsistent inferences: The evidence permits two equal but
inconsistent inferences and the jury has to guess

103

f.

13)

Defendants demeanor: D presented evidence and Ds demeanor

shows that the jury would disbelieve Ds evidence
g. Defeat: Evidence must be believed which will defeat one of Ps
necessary elements or affirmative defense proved
Constitutional Guarantee based on JNOV
a. Galloway v US: The power of a judge to direct a verdict, thereby
preventing evidence from going to the jury, does not violate the
constitutional guarantee of trial by jury; Thus a court has the power to
direct a verdict for insufficiency of the evidence
i. Standard for determining whether proof is sufficient: Mere
speculation cant take the place of probative facts after making
allowances for all reasonable inferences in favor of the nonmovant
ii. 7th amendment right: Does not prevent a court from relieving a
jury of its functions by directing it to return a verdict for one of
the parties
1. It preserves only the most fundamental aspects of the
institution of a jury trial and not all the procedural
enactments of a jury trial that eisted at the time of its
enactment
2. Right of a jury in suits of common law: This right does
not prevent the court from relieving a jury of its function
by directing it to return a verdict for one of the parties
iii. Demurrer: The assertion that the opposing partys pleadings are
insufficient and that the demurring party should not be made to
answer. A party had to admit all the facts that his opponent
sought to prove and the judge would make a final judgment
1. Demurring party: Party must admit all the facts his
opponent sought to prove and the judgment makes a final
judgment in the facts
2. If demurring party lost; He cannot attempt to disprove the
facts admitting by the demurrer
3. Since a demurrer and a motion for a new trial produced
contradictory results: Amendment did not enact any one
device to allow the judge to a remove a case from the jury
thus courts have a power to direct a verdict by
insufficiency of evidence
4. Modern day: It is replaced by 12b motions to dismiss,
specifically 12b6
iv. Directed verdict: Allows either party to move after the
presentation of the other partys evidence
1. If motion denied: Party can still present his own evidence
in rebuttal and the case will go to the jury
a. Device used: to test the sufficiency of the other
partys evidence

104

b. Judge: Must evaluate the evidence to see if it tends

to prove the elements alleged by the party against
whom the motion is made
2. Motion granted: If there is an absence of evidence or a
defect of proof of a crucial element of the challenged
claim or defense
v. Framers Intent: Just because a directed verdict was not known
at the time of the enactment of the 7th amendment does not
mean its unconstitutional
1. 7th amendment only sought to preserve the most
fundamental elements of a jury
2. Judges option: At the time of adoption, a judge could
remove a case from jury consideration by demurrer or a
motion for a new trial
vi. Dissent: DV is not appropriate since
1. Jury is fact-finder: the jury is the best judge of disputed
facts.
2. DV is different from demurrer: In a demurrer, the movant
undertook a great risk in admitting facts while there is no
risk in DV because if the motion is denied, it goes to the
jury
3. DV should be limited: Only where there is no room in the
evidence ofr an honest difference of opinion
vii. Extra Notes
1. Non- Hearsay: A party statement to another is always
admissible; It is never hearsay.

Judgment Notwithstanding the Verdict (JNOV)

1) Judgment Notwithstanding the Verdict (50b) : Renewed Motion for
Judgment as a Matter of Law
a. Definition: Judge has let the case go to the jury and jury reached a
conclusion reasonable people could not have reached so the judge
enters judgment for the other party
b. Renewal of earlier 50a: JNOV is a renewal of the earlier directed
verdict motion. There is no JNOV if the party failed to move for a
directed verdict at the end of Ps case or at the end of the trial
2) Grounds: The JNOV can only be based on the grounds that were alleged in
the original motion for a directed verdict
3) Reservation of legal questions: 50b reserves some legal questions that may
have been raised in a 50a motion even if the court does not grant the 50a
motion; the JNOV can still have those considered even if they were previously
considered un-meritorious.
4) Timing: It must be brought 28 days after entry of the judgment
a. Directed verdict prior: Party must have moved for directed verdict
before submission to the jury

105

i. Reason: There is a tension with the 7th amendments right to a

jury trial and the inability to revisit a jury verdict
b. Failure to renew a JML after the verdict: may waive an opportunity to
challenge the sufficiency of the evidence on appeal
5) Standard: Same as Judgment as a matter of law
a. The fact that the standard is met: Does not compel the court to grant it
but the court can actually grant a lesser remedy of a new trial
6) Writing: The motion does not need to be made in writing but can be oral as
per Rule 7b1
7) Requirement: Only the party seeking RJMOL have moved for JMOL at trial. It
is no longer required party move for JMOL at the close of the evidence
8) Joined with Motion for a New Trial: A post verdict motion for judgment as
a matter of law can be joined with a motion for a new trial
a. If JNOV is granted: The court should nevertheless rule in the
alternative on the motion for a new trial. In that way, if there is an
appeal, the appellate court will have full knowledge of the trial judges
decision- FRCP 50c1
b. If Judgment denied:
i. Appeal: the party whose motion is denied may appeal from the
judgment as entered (but not from denial of the motion, which is
a non-appealable order)
ii. Responding partys ground for a new trial: If movant does
appeal, the party seeking to preserve the verdict should assert
any alternative grounds he may have for a new trial. Otherwise,
the issues may not be preserved for consideration by the
appellate court, which might reverse and order entry of
judgment contrary to the verdict- FRCP 50e
9) Three circumstances a party can move for a JNOV
a. 50b: within 28 days after verdict
b. 50a: A judge must find that the jury would not have a legally sufficient
evidentiary basis for the party on that issue
i. Example: You failed to meet your burden of persuasion or
production since you did not provide credible evidence
c. If the evidence is close: If the evidence can go either way and a judge
grants a DV without going to the jury, it may be reversed on appeal
and a whole new trial will occur
i. Appeals JNOV: If the jury makes a decision and the judge grants
JNOV, if the appeals court reverses JNOV it can reinstate the
original verdict
10)
Concerns of the JNOVs:
a. Legitimacy: It could decrease the legitimacy of the process by just
letting the judge make the decision regardless of what the jury thought
b. Prevention of legal error: But this is a way to prevent legal error, which
is the judges job. Decisions should be consistent with precedent,
replicable, and have some predictability and be fair

106

c. Settlement: If the court delays judgment, at instead of at the end of

the evidence presentations it encourages the parties to settle and
provides more information of what a settlement should be
d. Efficiency: Weak/frivolous cases wont clog the system

Motion for a New Trial

1) Motions for a New Trial (59a): A federal court may order a new trial in a
jury case on all or part of the case
2) Timing: No later than 28 days after the entry of the judgment
3) Effect of New Trial Motion: Take the judgment away from the winning party
and start over with a new trial
4) Standard:
a. A motion for a new trial must state the grounds for the new trial: For
any reason for which a new trial has heretofore been granted in an
action at law in federal court. Basically any reason from precedent
makes it ok to grant the motion
b. Prejudicial misconduct: An defect from the court, jury or adversary that
tainted the result of the trial
i. Examples:
1. Error jury instruction or erroneous law
2. Misconduct of party
3. Juror misconduct: Juror drunkenness, bribery, consulting
of documents not in evidence, telling the public about
deliberations, averaging all the ideas of all the jurors
a. Hard to prove: because we dont want to make
jurors testify
4. Verdict is inadequate or excessive: Thus it shows that the
jury acted with extreme prejudice or misunderstood its
duty. e.g. damages
ii. Three types of errors
1. Reversible error: errors that would result in a reversal if
the case was appealed
2. Impact on verdict/Non-reversible: Errors that have an
impact on the verdict but dont justify reversible
3. Harmless errors: Errors that do not significantly impact
the outcome of the trial. If it was not prejudicial or was
adequately corrected with appropriate instructions from
the judge- FRCP 61
iii. Accident or surprise: A new trial may be granted if a party is
unfairly surprised by the evidence presented at trial
iv. Newly discoverable evidence: A new trial may also be granted in
order to consider evidence discovered after trial
v. Improper evidence: A new trial may be granted to correct an
erroneous ruling on the admissibility of evidence, provided the
error was prejudicial and was subject of timely objection

107

vi. Verdict contrary to law: A new trial may be granted if evidence is

not legally sufficient to support a verdict. An order granting the
JNOV may also be appropriate if the procedural requirements for
a motion were met
vii. Weight of the evidence: A new trial may be ordered if the judge
finds the verdict to be contrary to the manifest weight of the
evidence
1. Standards
a. Directed verdict standard
b. 13th jury standard: if a judge disagrees with the jury
c. Majority rule: The judge asks if the jury reached a
seriously erroneous result by weighing the
evidence, assessing credibility of witnesses and
drawing inferences from the evidence
2. Constitutionality: Since the motion for a new trial existed
at common law, there has been no serious challenge to its
constitutionality, even though it may seem to erode the
value of the right to jury trial
3. Appellate Review: If the refusal to grant the motion was
an abuse of discretion- This means that if the evidence
was seriously arguable, the trial judge should not
substitute his view of the evidence for that of the jury
4. Review of grant of new trial: Its not immediately
appealable because its not a final judgment. On appeal
from final judgment following the second trial, however,
appellant may claim error in the grant. If appellate court
agrees, it can reinstate the verdict from the first trial
5. Excessive or inadequate damages: Trial judge may find
that jurys award is against the weight of the evidence.
Thus, a partial or conditional trial can be ordered and they
are only generally reviewable for abuse of discretion
c. Court is not required to view the evidence in light most favorable to the
party
d. Or The court is free to grant a new trial on any ground
i. Possibilities
1. For any reason new trials are granted in federal courts
2. When appellate courts would grant a new trial on appeal
because of a trial courts reversible error
3. When jury verdict is so excessive/inadequate showing the
jury misunderstood or acting in prejudice
4. With jury misconduct
5. When inquiring into the validity of a jury verdict: jurors
may not testify about deliberations, only about prejudicial
information or outside influence

108

5) Grounds for a motion- Non-Jury Trial: If trial was conducted without a jury, a
motion for a new trial is essentially a hearing and can be granted on the
following grounds
a. Newly discoverable evidence
b. Erroneous findings of fact
c. Error in the conduct of the trial
6) Procedural Requirements for the New Trial Motion:
a. Necessity of a motion: A federal court can grant a new trial on its own
motion. However, if the losing party does not make a post-verdict
motion and the district court doesnt grant it on its own motion, the
appellate court may not grant it even if the losing party made a preverdict Rule 50a motion for JMOL
b. Timelessness: Motion must be served within 28 days after entry of
judgment
c. Affidavits: A motion for a new trial may be accompanied with affidavits
i. Time for filing: Movants affidavits must be filed at the time of
filing a motion
d. Hearings: Motion must be heard by the judge who conducted the trial,
unless shes disabled
e. Time for decision: There is no time limit on the judges ruling for the
motion
7) Partial and Conditional Orders of a New Trial:
a. Partial: Instead of ordering a new trial on all issues, court may grant a
partial new trial for one or some issues
i. Usage: A limited trial may be used only when it clearly appears
that the issue to be retried is so distinct and separable from the
others that a trial of it alone may be had without injustice
b. Conditional order: A order granting a new trial only if a party rejects
the condition the court put on the order
i. Method: By which a court attempts remitter of an excessive
verdict
ii. Remittur: A remittitur is an order for a new trial, subject to recall
if P consents to a reduction of the damages award, and if P
consents, a new trial is denied
1. Waiver: If P agrees to a remittitur: Most courts hold that
he waives the right to appeal the propriety of the
remittitur except if D appeals, the P may cross-appeal
from the reduction of damages ordered by the judge
2. Appellate court: A federal appellate court may review a
remittitur but only for trial abuse of discretion in applying
the governing standard
iii. Additur: It is an order granting a new trial unless D consents to
an increase in the amount of the verdict
1. Federal practice: It was held forbidden in federal courts as
violation Ps right to a jury trial on the issue of damages.

109

But the court hinted in Gasperini that it was willing to

rethink the constitutionality of additur
iv. Settlement: A judge can threaten to grant a new trial to
encourage a settlement
8) Moving for New Trial and RJMOL in the alternative:
a. Rule 50c1: Allows the party whose motion for RJMOL is granted to ask
the court to rule conditionally for the motion of a new trial as well
b. Reason: Entry of RJMOL is appealable and it skips the steps of appeal
c. Conditional grant of the motion for a new trial under 50c2: Does not
affect finality or appealability
9) Motion for a New Trial Because Verdict is Wrong: If its against the weight of
the evidence
a. Different from directed verdict: because theres not enough evidence
on a dispositive issue

Motion to Vacate Judgment

1) Motion to Vacate Judgment (Rule 60): Motion to set aside the verdict
a. Rule 60: Allows a party to seek relief from a judgment or order
2) Two parts of Rule 60
a. Clerical mistake: Allows a court to correct a clerical mistake or a
mistake arising from oversight or omission found in the judgment,
order or other part of the record: Court can act on its own or pursuant
to a motion
i. Clerical mistake: One that misrepresents what the court actually
intended to order, but it does not include mistakes made by a
judge
1. Judicial errors: Should be attacked by motion to alter or
amend under 59e
ii. Procedure: Corrects can be made on motion or sua sponte
iii. Timing: There is no time limit on the power to correct
b. Allows the trial court to correct substantive errors that cannot be
addressed under 60a
i. Six bases for which a court may grant relief under 60b
1. Mistake, inadvertence, surprise, or excusable neglect
a. Timing: Must be brought within 1 year of judgment
b. Common situation: when losing party is unable to
have a trial because of default judgment
c. Neglect of counsel: Is not a sufficient ground for
relief
2. Newly discovered evidence that could not have been
discovered with reasonable diligence in time for a new
trial motion
a. Timing: Must be brought within 1 year of judgment
3. Fraud, misrepresentation or other misconduct of an
adverse party
a. Timing: 1 year within judgment

110

3)

4)

5)

6)

b. Burden on party guilty of fraud: The responding

party has the burden of showing that fraud did not
affect the outcome
4. Judgment is void
5. Change of circumstances: Judgment has been satisfied or
a prior judgment which its based on has been reversed or
vacated and also pertains to equitable relief
6. Any other reason that justifies relief
a. Timing: Can be brought any time
b. Relief must be granted: In just terms
Timing: Must be made within a reasonable time
a. Motion under 1-3: Cannot be made more than 1 year after the entry of
the judgment. It is the absolute limit of FRCP 60c1
Decision of whether to grant a motion: Always vested in the courts
discretion (other than iv)
a. No right: to set aside judgment
b. Requirements: No failure to appeal and must show meritorious claim or
defense
Default Judgments: 60b1 often used to set aside a default judgment based
on mistake
a. Newly discoverable evidence under 60b2: Limited to that of with
reasonable diligence that could not have been discovered in time to
move for a new trial
b. Fraud or misconduct under 60b3
c. Judgment is based on earlier judgment reversed or vacated: 60b5Possibly one judgment that is closely related to another it has a
preclusive effect
d. Catchall provision: 60b6 allows relief for any other reason that justifies
relief
i. Only invoked when:
1. Case must not satisfy any other bases of relief unde r60
2. The moving party must establish extraordinary
circumstances for relief
e. Relief for void judgment: 60b4- Court has no discretion and it must set
aside the judgment
Motion to set aside a default judgment
i. Brandon v Chicago Board of Education: FRCP 60b1 applies
to errors by both the district court clerk and the parties
attorneys
1. FRCP 60b1: applies to errors by a district court clerk and
the parties attorneys
a. 60b: Motion to vacate judgment pursuant to 60b1
must be brought within one year of the judgment
2. A lack of due diligence: is not excusable under neglect
under Rule 60b1 by failing to bring the motion in a timely
fashion

111

3.
4.

5.

6.

7.
8.

a. Inexcusable neglect: The attorney did nothing for

one year
Denial of a 60b1 motion can only be reversed: if there is a
showing of an abuse of discretion
If Rule 60b1 applies, Rule 60b6 cannot: because inherent
in the structure of Rule 60b is the principle that the first
three clauses and the catchall clause are mutually
exclusive. Thus if the asserted grounds for relief fall within
the terms of the first three clauses of 60b, relief under the
catchall provision is not available
Clerical mistakes in 60A: Transcription mistakes in a
formal order coming from the court. It does not cover
mistakes on behalf of the clerks in mailing envelopes
(covered by 60b1)
a. 60b1: Also includes errors made by officers of the
court, including the clerk
Rule 60b2: Evidence that you could not have gotten
within the 28 days after judgment when you filed a
a. If you had the opportunity to find the fraud before,
you dont get relief
b. When the judgment itself is an error within its text
(ie. A request for an injunction was entered but
later decided the injunction was too vague)
Rule 60c1: Reasonable time only applies to 60b(4-6)
General Rule 60: It will render a judgment null and void
but you can try to get a new trial

Appeals and Review

1) Appeals: Concerns whether the action of the lower court is one that permits
the case to be taken to a court of appeals at that point
a. Deals with: Issues and standard of review. The court looks beyond the
rights of individual parties before them and attempts to create a
uniform law to predict outcome of future cases
b. Circuit Courts of Appeal: There are 13, 11 numbered, 1 in DC and 1 for
the Federal Circuit
c. Appeal Reviews of Lower Court Rulings: To assure that the trial court
conducted litigation in the proper manner and judgment conforms to
the law
d. Federal law: Statutory appeal is exhibited in 28 USC 1291
e. Waiver of Right: Right of appeal can be lost by
i. Express waiver
ii. Untimely assertion
iii. Voluntary compliance of judgment
iv. Acceptance of benefits

112

2) Standard: Appellate courts only hear about alleged errors contained in the
factual record
a. Timing: Appellant needs a timely objection to the error, if not its not
preserved for appeal
i. Alleged error: must have materially affected the outcome of the
case
b. Factual findings: No factual findings are reconsidered on appeal
3) Appellate Procedure:
a. Filing: Commenced by notice of appeal which is a written statement
that appellant invokes jurisdiction of the appellate court
b. Time limits: must be filed within 30 days after entry of a judgment of
civil cases or 60 days if US is a party
c. Amount of judges: Three judges sit on the court of appeals
d. Standards of Review:
i. Findings of fact: Set aside finding of facts only if they are clearly
erroneous
ii. Conclusions of Law: Conclusion of law reviewed de novo
iii. Mixed Fact/Law: Reviewed only by clearly erroneous standard
iv. Discretionary rulings reviewed for abuse of discretion: Ruling
overturned only if appellate court was convinced it was wrong
4) Rulings Subject to Appeal
a. Final Decision: Generally speaking, only a final decision may be
appealed. Finality is required in lower courts before an appeal can be
heard
i. Non-appealable orders: No immediate appeal may be taken from
most orders of the court
1. Orders after judgment
a. Federal Practice: An order granting a new trial is
not appealable in federal court
b. Orders denying a new trial: Not itself a final
appealable order but it leaves intact the final
judgment from which appeals can be taken
c. Appealable orders: An appeal may be taken from
other orders made after judgment that has the
effect of vacating the judgment or staying its
execution
b. Exceptions to the Final Decision Requirement
i. Partial final decisions under 54b: If multiple claims or parties are
involved in the action, an order disposing of fewer than all
claims ordinarily is not a final judgment so it is not appealable
until the remainder of claims are disposed of
ii. Review of equitable remedies: Modern practice reserves the
right to interlocutory review of equitable remedies that are not
final orders but which might result in irreparable consequences
1. Granting or denying injunctions
2. Appointment of receivers
3. Decisions in patent infringements actions or accounting

113

4. Admiralty proceedings
5. Writs of mandamus and prohibition: an order or
requirement of an action from a public official, including
the lower courts judge
iii. Discretionary review: Interlocutory appeals may be permitted by
leave of the court 28 USC 1292b
1. Certifies there is substantial ground for difference of
opinion and it would speed the ultimate resolution of the
case
2. Court of appeals grants leave to appeal
3. Interlocutory appeals: It is made while the case is pending
in trial court, before adjudication on the merits
iv. Collateral orders: A qualification established by case law in
federal courts allows an immediate appeal from orders that are
final with respect to collateral matters.
1. Rationale: The order is an offshoot of the principal
litigation and appeal wont delve into the merits of the
case
2. Requirements are
a. Important issue completely separate from its merits
b. Order effectively unreviewable on appeal from final
judgment
c. Conclusively determines disputed issue: Requires
trial court made its final decision on issue
challenged on appeal
5) Scope of Appellate Review: Appellate review must be sufficiently broad to
assure that the trial court properly applied the controlling substantive law and
that the procedure conformed to applicable standards
a. Exception: Appellate review does not extend to retrying the facts or
supplanting the trial judges decision in matters committed to her
discretion
b. Findings of Fact subject to Limited Review
i. Jury verdicts: When findings are embodied in a jury verdict, the
role of appellate court is the same as a trial judge
ii. Judicial findings in non-jury trials
1. Explicit findings required: when a case is tried before a
jury, the trial judge usually is required to make explicit
findings of fact in order to facilitate review of her decision
by the appellate court
c. Fact and law distinguished
i. Errors of law: If the jury was erroneously instructed on the law,
the verdict cannot stand
ii. Erroneous conclusions
1. Explicit conclusion required: In anon-jury trial, judge must
state conclusions of law either in a record oral statement
or in writing to facilitate appellate review (52a1)
2. Effect of erroneous conclusions: Judgment cannot stand
114

iii. Mixed issues of law and fact

d. Review of discretionary rulings: Many decisions by trial judges are
entrusted by law to their discretion so appellate court will not
substitute its discretion in the absence of the trial judges clear abuse
i. Harmless error standard under FRCP 61: Appellate court may not
reverse lower court judgment unless the trial court committed a
prejudicial error (one that affected the substantial rights of the
parties)
1. Burden: Burden of showing prejudice is usually on the
party claiming it
2. Jury trials: assumed jurors will be influenced by improper
evidence so this rule does not apply
e. Waiver of Objections in Lower Court: An appellate court may not
reverse to correct error that might have been avoided if the appellant
timely made an objection
i. Jury instruction under 51d1: An error in the jury instruction
usually will not be the basis for reversal unless the appellant
made a timely objection to the charge and proposed a correct
instruction
ii. New matter under 60b2: Newly discovered evidence or other
matters coming to light after trial are not appealable and it must
be presented to the trial court for a motion for a new trial or
relief from judgment
iii. Exceptions: An appellate court may review notwithstanding the
failure of an appellant to make a timely objection when
1. Subject matter jurisdiction: When the court below lacked
SMJ, no objection is necessary since the jurisdictional
issue can be raised belatedly or even sua sponte (12h3)
2. Clear and fundamental error
6) Appellate Review by Extraordinary Writ:
a. Prerogative writs: In exceptional cases, review of non-appealable
orders can be made by prerogative writs
i. Mandamus: An order directing the judge to perform her legal
duty and
ii. Prohibition: Order enjoining judge from conduct tha exceeds her
lawful authority
b. Source of power: 28 USC 1651a: Authorizes all federal courts to issue
writs as necessary in aid of their respective jurisdictions and agreeable
to the usages and principles of law

Remedies
1) The Role of the Judge
a. Brown v Plata: A remedial order issued by a three judge panel that
requires a state to address unconstitutional prison conditions by
reducing prison population to 137.5 percent of the prisons design

115

capacity within two years is consistent with the requirements and

procedures of the PLRA.
i. Four requirements to limit prison population
1. Crowding is the primary clause
2. No other relief would remedy the violation
3. Relief must extend no further than necessary to correct
the violation
4. Determination of the court must: Give substantial weight
to the aderse impact on public safety or operation of the
criminal justice system caused by the belief
a. It does not require a court to certify that it
absolutely ha no possible adverse effects
ii. Population limit: Courts must order the population reduction
achieved in the shortest period of time reasonably consistent
with public safety
b. PLRA exhaustion requirement: Prisoners must exhaust their
remedies before filing a suit

Choice of the Appropriate Court: Personal

Jurisdiction/Notice/Venue/Traditional View of
Personal Jurisdiction
1) Personal Jurisdiction: The exercise of a courts power over an individual
a. Fairness: Fairness of compelling someone to appear in court to defend
a lawsuit
b. Due Process: Includes the appropriate limits on when a person can be
brought into court
c. Enforcement
i. Full faith and credit: Full faith and credit clause only applies
when the judgment issuing court had personal jurisdiction,
subject matter jurisdiction and notice
2) Choosing a Court
a. Three layers of federal court
i. Federal district court: Assigned to districts whose geographic
boundaries correspond with those of the smaller states or with
parts of the larger states
1. Original jurisdiction- They are where judicial cases
originate
2. Limited subject matter jurisdiction: Statutes authorize
them to hear certain kinds of cases
a. Federal question cases
b. Diversity cases
ii. Appellate courts: Authorized only to review appeals from district
courts, certain specialized federal courts or administrative
agencies
1. 12 geographic circuits
116

iii. SCOTUS:
1. Original jurisdiction: in cases affecting ambassadors and
in which states are parties
2. Appellate jurisdiction: In others
a. Discretionary review: Free to hear based on
granting a writ of certiorari
3) Jurisdiction Over the Person or Property
a. Personal jurisdiction: The power of the state to hear a case and
enforce its judgment over the particular parties or property involved
i. State sovereignty: each state retains its own sovereignty.
ii. Full faith and credit: A valid judgment entered by a court in State
A, is entitled under our constitution to full faith and credit in all
other states
1. If the judgment is against a citizen of state B: That state,
when requested by P, must recognize and enforce it
against the D and any assets found within state B
b. How Problems of Territorial Jurisdictions arise:
i. Restrained by limitations on territorial jurisdiction
1. Territorial jurisdiction: Courts jurisdiction over persons or
things
c. Limits on Territorial Jurisdiction
i. State Courts:
1. Due Process Clause of the 14th: Protects the non-resident
D from suffering unreasonably from Ps choice of forum
a. Claim: it is property within the meaning of due
process
b. Affords litigants: Rights to notice and opportunity to
be heard
2. Forum non conveniens dismissal: A dismissal on the
ground that there is a more convenient place for
jurisdiction
3. Long arm statutes: Endow their courts with all or nearly all
the jurisdictional authority permitted by due process
ii. Federal Courts:
1. Due Process does not apply:
2. 5TH amendment: It permits greater geographical reach
than the 14th
a. Not a great difference: Federal courts are
dependent as their state counterparts on the
legislative branch to delegate their powers by the
statute
i. Absent a statute: Federal courts will be
limited to the jurisdictional reach of a state
court
4) Territorial Jurisdiction
a. In Personam: Personal jurisdiction provides courts with a basis for
entirely determining controversies involving personal obligations

117

i. In personam jurisdiction: It permits courts to enter a judgment

that is personally binding on D, either ordering her to do or
refrain from doing an act or decreeing that P can collect a
certain amount of damages from P
ii. Source: From the Constitution Article 4: requires other states to
enforce the judgment by giving full faith and credit to the
judgment
iii. Jurisdiction: It is jurisdiction exercised over D himself because he
has some appropriate connection with the forum
1. Examples: D lives there, committed an act there, had
some impact there
2. Seizure: Service of a summons which emanates
governments power over D
3. Valid judgment of in personam: Creates a
a. Personal obligation that P is entitled to recover from
D
i. If D does not pay the judgment amount: P
will enforce the judgment by asking the
court to seize Ds property in that locality
and sell it to a public auction
b. Full faith and credit: A valid judgment of the courts
of one state are entitled to enforcement in the
courts of other states
b. In Rem: Courts use this form of jurisdiction to adjudicate disputes
concerning the ownership and control of property to settle questions
against the world
i. Courts power: Over the defendants property and the property
must be seized at the outset of litigation
ii. In rem: Permits a court to adjudicate the rights of all possible
claimants to a specific piece of property, like a condemnation
proceeding
iii. Used when: P cannot executive a valid in personam judgment
but D has some property in that forum that can give a court
power to adjudicate the matters
c. Quasi in Rem: Operates on property located within the forum and not
directly against the person
i. Two types:
1. First: Cases involving individual disputes related to
property under the courts control
a. Specific performance of a contract to purchase land
2. Second: Involved essentially personal disputes where the
court could not assert personal jurisdiction over D but had
jurisdiction over property belonging to D
a. The property: would be seized by P and used to
satisfy the claim if P prevailed

118

i. It is severely limited on Constitutional

grounds
ii. Limitation: The value cannot exceed the value of the property
iii. Similarities
1. In rem: It binds parties only with the reference to their
interests in property
a. Limitation; The value cannot exceed the value of
the property
2. In personam: It can be used to adjudicate personal
obligations
5) Forms of Personal Jurisdiction
a. Suits in Defendants Home State
b. By Waiver or Express Consent
c. Transient Jurisdiction: Based on service within the forum of a nonresident D who happens to be in a state for a brief period
6) Traditional Conception
a. Pennoyer v Neff: Where the object of the action is to determine the
personal rights and obligations of the parties, service by publication
against non-residents is ineffective to confer jurisdiction on the court
i. Due Process Limitations on Jurisdiction
1. Service of process requirement: Defendant must be
brought within its jurisdiction by service of process or by
voluntary appearance
a. Two types of service:
i. Personal service: Personally given
1. In personam: Requires personal
service
ii. Constructive service: Publication
1. Quasi-in-rem: Can be satisfied with
constructive notice if property is
located within the state so long as the
property is ATTACHED at the
BEGINNING of the proceeding
b. Quasi-in-rem Attachment of Property Requirement:
This requires a proper pre-judgment attachment to
the property
c. In rem Hypothetical: It would have been ok if its an
in rem case because the person would have gained
constructive notice when his land was seized by the
government
2. Boundaries of a forum state: A state cannot serve an
individual domiciled in another state with process and
summon that person to respond to a lawsuit against him
a. Exclusive jurisdiction: Every state possesses
exclusive jurisdiction and sovereignty over persons
and property within its territory

119

i. Protection: Each state has the responsibility

to protect the people and property within its
borders
b. Limitation: Process from one tribunals cannot run
into another state and summon parties domiciled to
leave its territory
i. Property: property can be owned by someone
who is not a resident of the state
3. Methods to obtain jurisdiction
a. Residence: If someone resides in a forum, that
person is within the boundaries of the state and is
subject to the power of the states courts
b. Consent: A defendant may waive the constitutional
protection from being sued in a forum that does not
have personal jurisdiction so she can consent to
jurisdiction in any state
i. Consent: A party anywhere can consent to a
courts jurisdiction over them by
1. Failing to challenge the courts
jurisdiction: Filing an answer without
challenging jurisdiction
a. Special appearance: D can
make a special appearance to
only contest the courts
jurisdiction
2. Implied consent: Is allowed
c. Presence in the forum when served with process
d. Presence of an agent in the forum for service of
process: Both consent and presence together. A
state can require anyone doing business or
entering a contract within the state to appoint
someone to receive service of process
i. Appointing an agent for service of process in
another state: can be seen as D being
present in that state through an agent
ii. Agent appointment: Made in exchange for
doing business in the state
4. Exceptions:
a. Status: A state court could determine the status of
one of its citizens toward a non-resident even
without service within a state
i. Quasi-in-rem: It is litigation to determine the
interests of persons in a thing
b. Consent: States can require non-citizens to consent
to suit as a condition for conducting activities
within the state

120

i. Depends: on the states right to forbid or

exclude activity
ii. Limitations on the power of a state to
exclude non-citizens:
1. Doctrine of implied consent: Holds
that Ds in-state activities are sufficient
to justify service for suits related to
the activities, despite doubts about
the power to forbid them
5. Notice:
a. Notice not sufficient to establish jurisdiction: A
states power over individuals ends at its borders,
so that process from a states courts cannot run
into another state and force persons domiciled
there to appear in a legal proceeding
b. Notice not required to establish jurisdiction: The
prejudgment seizure of Ds property would be
sufficient because property is always in the
possession of the owner so its seizure will inform
the owner
6. Collateral attack: Pursuing an attack in another court. It
asks the federal court to intervene, saying the other
judgment violated his constitutional rights and the federal
court should interfere. You must assert this jurisdictional
defense from the get go
7. Status: The state has the authority to adjudicate the
status of its citizens via non-citizens
b. Harris v Balk: A debtors obligation to pay debt accompanies him
wherever he goes, and the question of jurisdiction is not dependent on
either the situs of the debt or the nature of the debtors stay in the
state
i. Scope of property: Since the debt accompanies the debtor
wherever he goes, the debt was sufficiently present to permit its
seizure to provide a basis for exercise of jurisdiction to the
extent of that debt
ii. Quasi-in-rem 2 expansion: Jurisdiction can be exercised over
intangible property
c. Hess v Pawloski: In advance of a non-residents use of its highways,
a state may require the non-resident to appoint one of the state
officials as his agent on whom process may be served in proceedings
growing out of such highway us
i. Doctrine of implied consent: Holds that Ds in-state activities
are sufficient to justify service for suits related to the activities,
despite doubts about the power to forbid them

121

1. Driving within a state: is an implied appointment of a local

official as Ds agent for service of process in the state in
any suit in that state on claims arising from that driving
2. Notice: Served upon the state registrar (a government
attorney for the state) and notice of such service and a
copy was sent by registered mail to D
ii. Specific jurisdiction: Jurisdiction is created only for a claim
that arises from activity within the forum particularly
iii. Expansion of In Personam Regarding Individuals: State
can simply allow the motorist to enter, on condition that she
thereby impliedly consents to in personam jurisdiction and to
the appointment of a local agent for service in process

Long Arm Statutes

1) Long Arm Statute: Long arm statutes supplement those principles by
implementing the authority recognized in International Shoe to reach
nonresidents who, falling outside the traditional categories, engage in
activities in the state that give rise to the plaintiffs claim.
a. For a court to assert jurisdiction over an out-of-state D: There
must be a statute or rule that gives the court the authority to exercise
jurisdiction
i. State court: the authority is usually in the form of a long arm
statute, which operates as enabling legislation
ii. First step in judicial analysis: To examine the legislation and
determine whether it covers the case presented
1. Involves: statutory interpretation, which is deciding what
the legislators or rule-makers meant by the words
selected for the statute
b. Relationship with In Personam
i. Traditional Pennoyer Grounds: Long arm statutes do not supplant
the traditional grounds for in personam jurisdiction
ii. Erie Doctrine: It implements the authority in Shoe to reach nonresidents who, falling outside the traditional categories, engage
in activities in the state that give rise to the plaintiffs claims
2) Types of Long Arm Statutes:
a. Full power statutes: Long arm statutes in a few states explicitly
authorize exercise of jurisdiction whenever it would not violate the
Constitution
i. Only issue: The constitutionality of jurisdiction
b. Specific acts: Most long arm statutes designate specific acts as
warranting the exercise of jurisdiction
i. Examples:
1. Transaction of any business within the state
2. The commission of a tortious act within the state
3. Ownership, use or possession of real property

122

4. Contracting to insure any person, property or risk located

in the state at the time of contracting
5. Maintenance of a marital domicile in the state in an action
for divorce
ii. Common sense reading: In general, courts say that they will give
the words of the rule or statute their ordinary meaning but in
some instances they can extend that reading
iii. Different legal theory: If Ds specific act is within the statute,
claims based on the same act but a different legal theory usually
can also be asserted in the action
iv. Arising out of requirement: Usually, long arm statutes that
designate specific acts require that claims arise out of that act.
1. Problem: This presents a problem similar to determining
whether there is a relationship between the claim and the
contacts and whether general or specific jurisdiction is
being invoked
v. Tortious act: The tortious act requirement is generally held to be
satisfied whenever P alleges that Ds act was tortious
vi. Full power through interpretation: Some long arm statutes
specifically extend jurisdiction to the constitutional limit
1. In those states that have specific act statutes: Some
courts interpreted the statutes to extend jurisdiction to
the constitutional limit
3) Two step analysis:
a. Statutory interpretation: By its text, does the long arm statute cover
this conduct
b. Constitutionality inquiry: Does the courts exercise of jurisdiction over
D reach beyond the constitutional limitations of international shoe? Are
there minimum contacts
4) Federal Court Jurisdiction for Long Arm Statutes: In general, federal
courts exercise jurisdiction no broader than that authorized by state long arm
statutes
a. In personam jurisdiction
i. Subject to jurisdiction of the state court: Process from a federal
court will confer jurisdiction over D if the D would be subject to
jurisdiction of a court of general jurisdiction in the state in which
the federal court is located FRCP 4k1A
1. Result: If D could be served in a suit in the state where
the federal court is located, the D can also be served in
the federal court suit
2. Constitutionality: The constitutional exercise is the same
as if the case were in state court
ii. Rule 14 or Rule 19 Joinder: Bulge jurisdiction - Even if local law
does not permit service, a party who is served within a judicial
district and within 100 miles of the place from which the

123

summons was issued is subject to jurisdiction if joined under

Rule 14 or Rule 19 FRCP 4k1B
iii. Interpleader or other federal statutory basis: Sometimes a
federal statute authorizes nationwide jurisdiction. If so, federal
courts can exercise jurisdiction even though state courts could
not
1. Examples:
a. Interpleader: 28 USC 2361
b. Securities fraud: 15 USC 78aa
c. FRCP 4k1C service in actions within the federal
courts multiparty
d. Multi-forum jurisdiction: may be made at any place
within the US or anywhere outside the country if
otherwise authorized by law 28 USC 1697
i. Example: (28 USC 1369 civil cases involving
at least 75 individual deaths from a single
action from a single accident at a discrete
location)
b. Minimum Contacts within the US: For claims arising under federal law,
federal courts can exercise jurisdiction even though D is not subject to
the jurisdiction of the courts of general jurisdiction in any state, if this
is consistent with the Constitution FRCP 4k2
i. Common situation: A situation that involves a foreign defendant
ii. National v State Contacts: This provision would apply if Ds
national contacts permit exercise of jurisdiction even though no
state has sufficient contacts to support it
iii. Narrow long arm statute: This provision can also apply if the
state in which the court is located has a narrow long arm statute
that does not apply to the circumstances presented in the case
although there are constitutionally sufficient grounds for
exercise of jurisdiction
iv. Showing D is not subject to jurisdiction: A P who invokes this
jurisdiction must certify that D cant be sued in any district
5) In Rem Jurisdiction: The federal court may assert jurisdiction by seizing a
Ds assets found within the district only if D cant be served by an otherwise
authorized means, and then only in the manner provided by the law of the
state in which the district court is located- FRCP 4n2
a. Shaffer exception: It may still be possible to challenge the seizure
under Shaffer v Heitner
6) No Court Created Authority: It is likely that Congress has been acting on
the assumption that federal courts cannot add to the scope of service
Congress authorized and thus Court rejected that it should authorize
nationwide service of summons for a federal claim that Congress did not
provide for

Specific and General Jurisdiction

124

1) Specific and General Jurisdiction

a. Traditional grounds for in personam jurisdiction:
i. Domicile or citizenship
ii. Incorporation in the forum state
iii. Service of process in the state
iv. Appearance in court
v. consent
b. Specific jurisdiction authorized by long arm statutes: Must be
compared with general jurisdiction, which is the power over all claims
related to Ds activities within the forum state or not
i. Specific jurisdiction: Requires that Ps claims arise out of a
particular act performed by D within the forum state
c. General Jurisdiction: The territorial limitations are still relevant because
if they are not met, the Minimum Contacts Rule will be satisfied
i. Rule: A non-residents conduct of continuous, systematic and
substantial business in the forum would also subject D to
general jurisdiction over any claim, regardless of where it arose
2) Personal Jurisdiction in Federal Court: The vehicle controlling PJ in
federal court is FRCP 4
a. FRCP 4k1a: Incorporate the local state long arm statute as a constraint
on federal jurisdiction
i. Federal long arm jurisdiction: The FRCP makes the federal long
arm equivalent to a states long arm
b. FRCP 4k1B 100 mile bulge rule: Authorizes jurisdiction over an
impleaded party not otherwise within the district courts reach if
service was effected 100 miles of the court
c. 4k1C: Provides for nationwide service when authorized by a federal
statute
d. FRCP 4k2: Extends federal power to the outermost constitutional limits
in federal claims cases
i. Three elements required
1. Ps claims must arise under federal law
2. D must be beyond the jurisdictional reach of any state
court
3. The exercise of jurisdiction must not violate the
defendants rights under the constitution, meaning that
even though defendants contacts are so scattered that
no one state has jurisdiction, there are sufficient
aggregate contacts with the U.S. as a whole to satisfy the
5th Amendments Due Process clause.

Minimum Contacts
1) Minimum Contacts Test: To subject D to a judgment in personam, due
process requires only that he have certain minimum contacts with the forum

125

such that maintenance of the suit does not offend traditional notions of fair
play and justice
a. Factors:
i. Directly related
ii. Systematic and continuous activity: Systematic and continuous
nature of contacts in the state is sufficient
b. How a Judge Would Determine Jurisdiction
i. Look at Contacts: Are they substantial and continuous
1. Only look at contacts if:
a. There is no long arm statute
b. Long arm doesnt apply
c. The long arm statute would offend due process
ii. Substantial justice and fair play
1. Look at States interest, Ps interest and Ds interest
iii. Burdens and Benefits analysis
2) Contemporary and Constitutional Grounds for State Court
Jurisdiction
a. Contacts with the Forum: There is a two stage analysis for determining
whether exercise of jurisdiction over D is proper
i. Purposeful availment: There must be some act by which D
purposefully avails itself of the privilege of conducting activities
within the forum state, thus invoking benefits and protections of
its laws
1. Definition: Looks into the voluntary action by D
establishing relationship with the forum
2. Foreseeability: Standing alone, reasonable foreseeability a
suit may be filed is insufficient.
a. Critical foreseeability: That Ds conduct and
connection with the forum state is such that he
should reasonably anticipate being haled into court
there
i. Unilateral act of P is insufficient: A unilateral
act of P in bringing a product to the forum or
relocating in the forum is insufficient to
establish the requisite connection
ii. Entering into a long term relationship with a
forum resident: It suffices to establish
minimum contacts
iii. Seeking to serve: If it were shown that D
indirectly through others served or sought to
serve the market
iv. Stream of commerce: A forum state may
assert personal jurisdiction over a
corporation that delivers its products into the
stream of commerce with the expectation
that they will be purchased by consumers in
the forum state
126

1. Retail seller: It ends with the retail sale

of the product, even if its foreseeable
that the purchaser will take the
product to another state
2. Manufacturer of component supplier:
Jurisdiction over a component supplier
whose product was sent into the forum
state as part of a product
manufactured by its customer
a. Asahi difference: Placing a
product into the stream of
commerce is not sufficient and
some additional conduct must
indicate an intent or purpose to
serve the forum state
v. Targeting or intending effects in forum: At
least for intentional torts, jurisdiction can be
obtained over non-resident D if the D
intended his actions could have an effect in
the forum
1. Generally focused on wrongful or
commercial activity: The effects test
was intended to reach wrongful
activity outside of the state causing
injury within the state or commercial
activity affecting state residents
3. Relationship between contacts and forum and claim
asserted: Jurisdiction is proper for claims related to the
forum contacts that satisfy the purposeful availment
requirement (specific jurisdiction)
4. Commercial v Non-commercial: Purposeful can be found
more easily with regard to defendants commercial
activity than with regard to non-commercial activity.
a. D must seek commercial benefit from solicitation of
business from a resident of the forum state
5. Reasonableness insufficient to satisfy purposeful
availment requirement Other factors cannot outweigh the
importance of the purposeful availment requirement
ii. Fair play and substantial justice: The jurisdictional inquiry also
takes account of a number of other factors to see whether the
exercise or jurisdiction in a state is reasonable
1. Factors:
a. Burden on D
b. Forum states interest in adjudicating the dispute

127

c. Ps interest in obtaining convenient and effective

relief
d. Interstate judicial systems interest in obtaining the
most efficient resolution of the dispute
e. Shared interest of the several stats in furthering
fundamental substantive social policies
2. Overlap: Same facts may be relevant to more than one of
the factors
3. None are critical: The fact certain factors dont support
forum jurisdiction is not fatal to jurisdiction
4. Easy to satisfy: Where a D who purposefully has directed
his activities at forum residents seeks to defeat
jurisdiction, he must present a compelling case that the
presence of some other considerations would make
jurisdiction unreasonable
5. Foreign Ds: There are greater burdens on foreign
defendants
iii. Internet Activities
1. Same general analysis applies: the same minimum
contacts that is used for other litigation applies to suits
arising from Internet activities as well
a. Contracts via internet: Entering into an ongoing
contract via communications will suffice to support
jurisdiction at the forum of either party
b. Causing effects may suffice: Calders effects test
may suffice
c. Relation to state long arm requirements: Courts
apply their usual long arm analysis when
determining personal jurisdiction in internet cases
2. Specific issues
a. Ability of forum residents to access Internet site
usually not sufficient by itself
b. Level of interaction and nature of webpage is
relevant
i. Passive: Merely provides information,
jurisdiction is not found
3) International Shoe v Washington: For a state to subject a non-resident D
to in personam jurisdiction, due process requires that he have certain
minimum contacts with it such that the maintenance of the suit does not
offend traditional notions of fair play and substantial justice
a. Systematic and continuous Contacts: Must be such as to make it
reasonable to require defendant to defend the suit brought in the
forum state
i. Analysis: Examines the:

128

1. Estimates of inconvenience to D for traveling here:

Distance to travel, how much is it going to cost to defend
the suit there
2. Quality and nature of Ds activity: Isolated, continuous,
regular and size of scope of the activity
3. Substantial contacts
4. Purposeful availment
ii. Estimate of inconveniences: An estimate of inconveniences that
would result to the corporation from a trial away from its home
is relevant
1. Casual or isolated activities: Produces an unreasonable
burden on a non-resident defendant
a. Exception: If the nature, quality and circumstances
of the act makes it sufficient to render a
corporation liable to the suit
b. In Personam Jurisdiction: Grounded on courts de facto power over Ds
person so his presence was a prerequisite to its rendition of a judgment
personally binding him
c. Four part model for when jurisdiction is appropriate:
i. Two variables:
1. Level of activity of D in forum: Casual or
Continuous/Systematic
2. Whether the claim asserted against D is related to Ds
activities in the forum: Unrelated or related
d. General in personam jurisdiction: The Defendants contacts with the
forum is so substantial that D can be sued there for a claim that arose
anywhere in the world
4) Worldwide Volkswagen v Woodson: The forum state does not exceed its
due process powers if it asserts PJ over a corporation that delivers its
products into the stream of commerce with the expectation that they will be
purchased by consumers in the forum state
a. Minimum Contact Test: First find relevant contact and then look into
fairness
i. Fairness: Protects defendants from litigation in an unduly
burdensome forum
ii. Contact: It ensures that states do not impinge upon the
sovereignty of other states by overreaching their own
jurisdictional power
1. No matter how far reaching fairness is: There can be no
jurisdiction if there was no initial finding that D has
relevant contact with the forum
b. Assessing Contact: There must be purposeful availment and
foreseeability
i. Purposeful availment: Consists of Ds doing something to avail
herself of the benefits of the forum in some way.

129

1. Majority: The defendant must do more than just place

their product into the stream of commerce
2. Dissent: The defendant only needs to place its product
into the stream of commerce
ii. Foreseeability: It must be foreseeable that D will get sued in the
forum. Ds conduct and the connection with the forum state are
such that he should reasonably anticipate being haled into court
there.
1. Non-critical foreseeability: It does not matter if it is likely
that a product will find its way into the forum state
c. Fairness Factors
i. Burden on the Defendant: Primary concern
1. How much money will it cost and how many people will be
needed to travel
ii. Forums state interest in adjudicating the dispute
1. Protecting citizens or protecting general welfare
iii. Plaintiffs interest in obtaining convenient and effective relief
1. How much is at stake, how many people were killed and is
there a greater interest in stake
iv. The interstate judicial systems interest in obtaining the most
efficient resolution of controversies
v. The shared interest of the several states in furthering
fundamental substantive social policies
d. Dissents
i. Brennan: The sale of a car injects the car into the stream of
commerce since the value of the car is derived from a highway
system
ii. Marshall:
1. Intent: Jurisdiction is based on the deliberate and
purposeful actions of D and D chose to engage in his
business.
2. Cars nature: D must have anticipated that a substantial
portion of the cars it sold would travel out to NY so it
should alert a reasonable businessman that a defect can
manifest itself in another state
3. Economic advantage: P knowingly reached out of the
state and received economic advantage from the fact its
product can be moved out of state
iii. Difference with majority and dissent in the nature of the stream
of commerce: Do we look at the global supply chain of the
product in general or the specific supply chain? What is
purposeful availment?
e. Extra Notes:
i. Separate Analysis: The minimum contact analysis and the
foreseeability analysis and the burden and benefits analysis are
three separate categories that must be considered separately
ii. Concerns for Minimum Contacts
130

1. We dont want to greatly inconvenience D

2. Element of fairness: Costs of having lawyers in every state
or bringing lawyers to every state
3. Reasonableness: If the benefits of having a product
traveling on the roads of your state is super attenuated,
then it doesnt justify tbe investment of resources for a
business
4. States obligations to protect its own citizens and the
interest of the forum in adjudicating the dispute
5) Calder v Jones: A state may exercise jurisdiction over an out of state party
whose intentional conduct is calculated to cause and does cause injury to the
complainant in the forum state
a. Calder effects test: Relevant contact between D and the forum can be
established not only by the D going to the forum and doing something
there but by her intentionally causing an effect there
6) Commerce and Contracts: Stream of Commerce
a. Issue: The unilateral act of a third party manufacturer
b. Asahi Metal Industry Co. v Superior Court of California:
Minimum contacts sufficient to sustain jurisdiction are not satisfied
simply by the placement of a product into the stream of commerce
with awareness that its product would reach the forum state. There
must be some act by which D purposefully avails itself of the privilege
of conducting activities within the forum state
i. Purposeful availment: Purposeful availment of the forum has to
be purposeful and specific to that case
1. OConnor Theory: Requires additional conduct that
indicates an intent or purpose to serve the market in the
forum state
a. Putting a product into a stream of commerce: Not
enough
b. Examples:
i. Designing the product for the forum state
market
ii. Advertising in the forum
iii. Establishing channels for giving advice to
customers in the forum
iv. Marketing through a distributor who agrees
to serve as a sales agent in the forum
2. Brennan Theory: So long as D places a product in the
stream of commerce and is aware that the final product is
being marketed in the forum state
a. No burden of litigation: Because D benefits
economically
ii. Once minimum contacts is satisfied: The fairness requirement
must be met as well but its harder to do in the case of a non-use
resident

131

1. Contact analysis: Is fact-specific, you must show that D

acted with the purpose of serving people within the forum
state
a. Percentages of goods,
b. Supply chain,
c. Advertisements, etc.
d. Designing products for use with x
e. D established channels to provide advice to a forum
state
f. D engaged a 3rd party distributor to act as a
distributor in the forum state
iii. Extra Notes:
1. Impleader: A party must always implead before it can
cross-claim
2. Changes from past cases: Before the idea of minimum
contacts were a safeguard for fair play but now these
concepts are distinct and both must exist for jurisdiction
3. Due process requires: It is reasonable to bring D into the
court there
4. Only Supreme Court Case that has rejected PJ on the basis
of unfairness
c. J. Mcintyre Machinery v Nicastro: In products liability cases, the
stream of commerce doctrine cannot displace the general rule that the
exercise of judicial power is not lawful unless D purposefully avails
itself of the privilege of conducting activities within the forum state,
thus invoking the benefits and protections of its laws
i. Jurisdiction is only possible: Where the Defendant has targeted
the forum
1. Not enough: That D might have predicted that its goods
will reach the forum state
ii. New intentionality: Lawfulness of a judgment depends on
whether the sovereign has authority to render it which depends
on submission by the D to the authority of the state
iii. Brennans concurrence: A single isolated sale, even if
accompanied by the kind of sales effort indicated here, is not
sufficient
iv. Raises question: Is fairness no longer part of the question?
d. Burger King Corp v Rudzewwicz: A party who establishes
purposeful minimum contacts with a state is subject to that states
exercise of personal jurisdiction over him
i. Contract cases: The Shoe doctrine applies in contract cases for
personal jurisdiction
ii. WWV two part test
1. Relevant contact between D and the forum: It is sufficient
for D to reach out to the state to negotiate a contract, if
the corporate headquarters called all the shots, and if the

132

contract expressly provides that the disputes are

governed under Fla. law
2. Fair play and substantial justice:
a. Burden to show unfairness: The defendant holds
the burden
b. Mere inconvenience is not enough: D must show
that the forum is unconstitutional
i. Unconstitutional test: The defendant must
show that litigation in the forum is so gravely
difficult and inconvenient that a party
unfairly is at a severe disadvantage
compared to his opponent
ii. Due process: does not guarantee the best
forum of even a reasonably good forum
c. Assessing whether the burden is great: The
relevant wealth of the parties is irrelevant
d. Fairness: an especially strong showing of fairness
might justify jurisdiction on a lesser showing of
contact
iii. Contract: The contract is just one factor but we are more
concerned with the parties conducts
1. Courts should look at:
a. Course of dealings after the contract
b. Negotiations
c. Terms are to be considered with negotiations
d. Intended consequences of the contract
e. Choice of law provision: Reinforces a purposeful
contact. It implies an intent that the case should be
tried in Florida
iv. Convenience: Do not use convenience as a factor. The question
is not whether it is convenient for the parties and the distinction
between burden and convenience is that the burden is very
specific
v. Sliding scale: The specific facts first have to be applied to the
minimum contacts analysis and then our substantial justice
requirements
e. Motion to Dismiss in a Contract Action
7) Personal Jurisdiction in Cyberspace
a. Als Scan Inc v Digital Service Consultants: A state may not
exercise personal jurisdiction over an out of state person whose only
contact with the state is through internet activity that is not directed at
the state. A state has jurisdiction over a party when that party directs
electronic activity within the state for the purpose of engaging
business in that state and that engagement would establish a cause of
action for a person within the state

133

i. Zippo test: A state may exercise judicial power over a person

outside the state when
1. That person directs electronic activity into the state
2. With the manifested intent of engaging in business or
other interactions with the state and
3. That activity creates a potential cause of action
cognizable in the courts in a person within a state
ii. Zippo Contact: The likelihood that PJ can be constitutionally
exercised is directly proportionate to the nature and quality of
commercial activity that an entity conducts over the internet
1. Active website: One which D engages in activities such as
transmitting files to the forum state over the internet or
entering contracts with the residents of the forum =
Contact
2. Interactive website: Website from which D can send or
receive information.
a. Considerations: Court must consider
i. Level of interactivity and
ii. The commercial nature of the exchange of
information
3. Passive website: Which D merely posts information and it
does little more than make information available to those
who are interested in = No contact
8) Litigating Jurisdiction
a. Defendants alternative options other than personal jurisdiction
objections
i. Default: The defendant can disregard the process and allow her
default to be taken. If an effort is later made to enforce the
resulting default judgment, D can argue that full faith and credit
should not be given to the judgment because it was entered by
a court without jurisdiction
ii. Appearance to Litigate: D can appear in the action and litigate
jurisdiction in the court which the suit was filed
1. In federal court and most state courts: The jurisdictional
objection can be raised along with other defenses
2. Special appearance: In a few states, D would have to
enter a special appearance that only raises the
jurisdictional issues
iii. Discovery: The court can order discovery regarding the factual
issues that are pertinent to the resolution of a personal
jurisdiction objection
1. By making a personal jurisdiction objection ;D consents to
the courts jurisdiction with respect to discovery
iv. Binding Effect: Once D appeared and litigated jurisdiction, D
cannot re-raise the issue collaterally to resist full faith and credit
and she is estopped from relitigating the issue

134

1. Appellate review: D whose jurisdictional objections are

rejected can appeal that decision in the court system the
decision was made.

Jurisdiction Based on Presence of the Defendants

Property
1) Jurisdiction Based on the Presence of Defendants Property: The
presence of Ds property in the jurisdiction often may suffice to make
jurisdictional constitutional but ordinarily only because it establishes a
relevant contact between D and the forum
2) Location of property:
a. Tangible property: Tangible property is located in the state if it is
physically present
b. Intangible property: If some transaction related to the property
occurred within the state. When intangible property is embodied in an
instrument, it is usually located in the state the instrument is located
3) Contacts test: The minimum contact analysis should be applied to
jurisdiction over property
a. Presence of property supports jurisdiction: The presence of
property in a state may bear on the existence of jurisdiction by
providing contacts among the forum state, D and the litigation
i. True in rem cases: The state has jurisdiction based on the
presence of property in true in rem cases
ii. Pre-existing claim to property: actions for specific performance
to perfect a claim of property can be permissible in the state
where the property is located
1. Contract: This does not apply to an action by the owner of
local property to force a non-resident to perform an
alleged contract to purchase property since the presence
may not imply any connection with D and the state
2. Must be a claim to specific property: Property attached as
security for eventual money judgment will not suffice
iii. Claim related to the rights and duties arising from ownership:
Court also noted that jurisdiction could be sustained on the basis
of the presence of the property where the claim relates to the
duties of the owner
1. Movable property: If injures inflicted by movable property
produces a claim against the owner, seizure of the
property may support jurisdiction even if the owner did
not cause the property to be on the forum
iv. Real property: Concurrence in Shaffer argued that the rule
should not invalidate jurisdiction in actions against non-resident
owners of real property in the state

135

v. Absence of another forum: This may sanction jurisdiction by

necessity
vi. Securing judgment in another forum: Quasi-in-rem is not
necessary to prevent a D from moving his assets to a state in
which he is not subject to suit
1. In such a situation: it may be proper for P to attach the
property as security for a judgment being pursued in a
state that has in personam jurisdiction over D
vii. Enforcing a valid judgment: The court noted that once a
judgment is entered by a court with in personam jurisdiction, it
is proper for another state to enforce the judgment even if it did
not have jurisdiction to decide the case as an original matter
b. Presence of unrelated property is insufficient for jurisdiction:
When property is completely unrelated to the Ps cause of action, its
presence alone will not suffice to support jurisdiction
i. Overrules Balk
c. Insurance obligations: States cant obtain jurisdiction over nonresident Ds in automobile tort actions by treating the Ds insurers
obligation to defend and indemnify as property in the state and
garnishing the insurer
d. In personam alternative: Whenever D is subject to in rem, it is
important to consider in personam as well
4) Shaffer v Heitner: Jurisdiction cannot be founded on property within a state
unless there are sufficient contacts within the meaning of the International
Shoe Test
a. Central concern of PJ: The relationship among D, the forum and the
litigation, rather than mutually exclusive sovereignty of the states
b. Holdings:
i. A state cannot obtain PJ over a party merely because of the
partys ownership of the property in the state. But owning
property may yield to sufficient contacts
1. Attachment of property: The case does not affect
attachment of property overall but only affects quasi in
rem attachment as an assurance of judgment for a nonforum court with a non-resident D
ii. Quasi-in-rem in subject to minimum contacts analysis
c. In rem and quasi-in-rem: The relevant inquiry is not simply whether the
property serving as the jurisdictional predicate was attached at the
outset but is based on the Shoe test. It combines in rem, quasi in rem
and PJ into the SHOE TEST.
d. The presence of property in a state: may bear on the existence of
jurisdiction by providing contacts among the state, D and the litigation
i. Three examples
1. When claims to the property itself are the source of the
underlying controversy: It would be unusual for the state

136

where the property is located not to have jurisdiction (in

rem, QR1)
a. The defendants claim to the property: would
indicate that he expected to benefit from the
states protection of interests
b. Presence of property: Satisfies the Shoe test
2. Presence of property may favor jurisdiction in QIR-2 cases
where the jurisdictional predicate caused the injury to P
a. QIR2 cases where the property is completely
unrelated to Ps cause of action: Seizure of the
property is a substitute for jurisdiction over the
person so if jurisdiction over the person would
require satisfaction of Shoe, so should QIR2
3. Adjudications of status

Jurisdiction Based on Personal Service Within the State

1) Jurisdiction Based Solely on Personal Service Within the Forum
State: Service of process within the jurisdiction was presumptively sufficient
to support jurisdiction
a. Possible minimum contacts requirement: Burnham upheld the
constitutionality of transient jurisdiction, obtained by service on a nonresident temporarily within the state, even though the suit was
unrelated to Ds activities in the state
i. This will not suffice: If Ds presence was not intentional or
voluntary
b. Fraudulent inducement: When D is personally served in the forum
state, the court will not exercise jurisdiction on that ground if D was
lured into the jurisdiction by Ps false statements
i. Trickery to effect service: Using trickery to effect service on D
already in the jurisdiction generally does not interfere with the
effectiveness of service
2) Burnham v California: The 14th amendment does not deny a state
jurisdiction over a person personally served with process while temporarily in
a state, in a suit unrelated to his activities in the state. A state can gain PJ
over a non-resident who was personally served with process while
temporarily in the state, even if his purpose for being in the state is unrelated
to the matter before the court
a. Issue: Does service of process within the forum suffice or does
jurisdiction have to be assessed under the Shoe doctrine?
b. Rule: Jurisdiction can be based on presence in the forum when D was
served with process, without assessment of the Shoe standard
i. Service of process is not necessary to exercise in personam
jurisdiction: But it is sufficient for the exercise of personal
jurisdiction

137

ii. Shoe doctrine: is only set forth if D is not present in the forum
and in cases of in-rem and quasi-in-rem jurisdiction. It does not
extend to transient jurisdiction
c. Extra Notes:
i. P chose personal service: because otherwise shed need to rely
on a long arm state or minimum contacts analysis that is far
more difficult to establish
ii. Big burden: Is community property state so that property is split
in half in a divorce
1. Important: It is relevant to the resource element of the
fairness analysis
iii. Long arm statute is not applied: because the state gets general
jurisdiction over the Defendant
iv. Rules v Standards Debate
1. Rule (Scalia) : If you are in the state, you can be served
2. Standard (Brennan/Fairness): Balancing burdens and
benefits

General Jurisdiction
1) General Jurisdiction: SCOTUS distinguishes between specific and general
jurisdiction
a. General and Specific
i. If general jurisdiction is justified: D is subject to suit on a claim in
any forum
ii. Specific jurisdiction: gives rise to jurisdiction only for claims
related to the jurisdictional contact with the state
2) Relation to the claim: The general jurisdiction analysis is important when the
relation between Ds contacts with the jurisdiction and the claim sued upon is
not sufficient for specific jurisdiction
a. Where there is not a sufficient relation between contacts and the claim:
One may look for a basis to exercise general jurisdiction
3) Rationale: The purpose of general jurisdiction is to provide a safe harbor
where P may bring suit without the worry that a court might later question
the existence of sufficient contacts under International shoe
a. The expansion of specific jurisdiction may call for a more cautious use
of general jurisdiction: Broad constructions of general jurisdiction are
generally disfavored
4) Natural persons: General jurisdiction is available in the state of a persons
domicile
a. Domicile: One acquires a domicile by being present in a state with the
intent to make it ones home for an indefinite period
5) Corporations: A corporation is subject to general jurisdiction in its state of
incorporation and in the state in which its headquarters are located
a. Substantial contacts: Corporations have been held subject to suits on
unrelated claims in states in which they conduct substantial activity.
b. Temporary headquarters: Jurisdiction is upheld
138

i. Ongoing operations in the forum: Before, a relatively small office

of D corporations suffice to hold general jurisdiction but courts
may be tightening those requirements
1. Office in forum: sufficient
2. Sales in forum: Not sufficient
3. Purchase of equipment and execution of contract:
Defendants contacts are insufficient
4. Regular purchases: insufficient
6) Helicopteros Nacionales de Colombia v Hall: One trip to a state by the
petitioners executive officer for the purpose of negotiating a transportation
service contract cannot be regarded as a continuous and systematic contact
and cannot support general jurisdiction
a. Acceptance of checks: It is of negligible significance for determining
whether there were sufficient contacts
i. Rationale: people can get checks everywhere
b. Purchases from a manufacturer and training trips: Were insufficient
basis for systematic and continuous contacts
7) Goodyear Dunlop Tires: A state may not exercise general personal
jurisdiction over a foreign subsidiary of a US corporation where the subsidiary
lacks continuous and systematic business contacts with the state
a. General jurisdiction: requires that D have substantial and continuous
contacts with the forum
i. Stream of commerce: it cannot be based upon a stream of
commerce theory
1. Shipping products through the stream of commerce into
the forum: cannot constitute such substantial and
continuous contact to justify general jurisdiction
ii. Contacts: contacts must be such that D is essentially at home in
the forum
1. Essentially at home:
a. Individual: Domiciled
b. Corporation: Where it is incorporated and where it
has the principal place of business

Consent
1) Consent: A defendant may consent to jurisdiction in the forum.
2) Express consent: It can be made either before or after the suit is filed and
suffices to support jurisdiction without reference to other contacts with the
forum
a. Registration by corporation: In many states, foreign corporations that
engage in business in the state are required to register and appoint an
agent for service of process in the state, thereby consenting to suit
there
3) Implied Consent: By filing suit, P is deemed to have consented to the
jurisdiction of the forum for the purpose of a counterclaim by D. But this

139

implied consent does not extend to a counterclaim unrelated to the subject

matter of the Ps claim against D
a. Class actions: In class actions, the failure of unnamed P class members
to opt out of the class action constitutes consent to adjudication of
their claims in the forum.
i. Does it apply to Defendant class?
4) Appearance: A partys voluntary appearance in an action is sufficient by
itself to support jurisdiction
a. Definition: An appearance occurs when D defends litigation on the
merits
b. State courts: D who wishes to preserve PJ must make a special
appearance raising only jurisdictional issues
c. Federal courts: D need not make a special appearance, all grounds of
defense including lack of PJ can be asserted in a motion or answer
i. Waiver: If D fails to raise PJ in an initial motion, the objection is
waived
ii. Consent to jurisdiction to decide jurisdiction: D consents to the
power of the court to decide the question of jurisdiction,
including the power to order discovery pertinent to the
jurisdictional question
1. Binding effect: D who appears and litigates cannot later
raise jurisdiction as a bar to full faith and credit. To
preserve jurisdictional objection as a ground for resisting
full faith and credit, D must default
iii. Extent of jurisdiction conferred: A general appearance may be
limited to the claims made or issued raised in the action at the
time of appearance
iv. Alternative of default: D who believes that jurisdiction is
improper may disregard the suit and permit default judgment
1. When P later attempts to enforce the default judgment in
another jurisdiction under full faith and credit: D can then
challenge on the ground that rendering court lacked
jurisdiction
5) Carnival Cruise Lines Inc: A forum-selection clause in a form ticket
contract will be reasonable and fair as long as it does not limit all liability of
the carrier or avoid the right of any claimant to a trial by a court of
competent jurisdiction
a. Reasons why a reasonable forum clause is permissible
i. Cruise line: has a special interest in limiting the forum
ii. Reduction in costs: the clause reduces costs for D and the costs
to the system overall (Parties would be able to file complaints in
wrong jurisdictions, increasing the burden on the system and
increasing confusion)
iii. Dispels confusion: The clause dispels confusion about where
suits arising must be brought, thus sparing litigants time and

140

money arguing the correct forum and conserving judicial

resources
iv. Passengers can get reduced fars due to the reduced costs
v. No bad faith: No indication that the establishment of the state
with jurisdiction was to discourage passengers from pursuing
legitimate claims since it was its principal place of business, P
got notice and no evidence that accession was obtained by
fraud
b. Possible problems: It may allow multinational companies to create a lot
of hardship for unsophisticated people
c. Congresss law: After Carnival, Congress passed a statute that allowed
P to bring a suit anywhere. The law was amended so its back to
Carnival Cruise standing at least somewhat

Notice
1) Notice: Notice: In addition to PJ and venue, problems of notice should be
considered. It is essential to a valid judgment
2) Constitutional requirements: Due process requires that reasonable efforts
to provide notice be made with regard to persons whose interests are to be
determined
a. In rem cases: notice requirement applies to in rem cases
b. Method: The method of giving notice must have a reasonable
prospect of giving actual notice
i. Means: The means employed must be such as one desirous of
actually informing the absentee might reasonably adopt to
accomplish it
ii. Personal Delivery: Personal delivery of notice is the traditional
method
iii. First Class Mail: Court required mailed notice to those whose
addresses were known since mails are recognized today as an
efficient and inexpensive means of communication
1. Class actions: Under FRCP 23b3, there must be mailed
notice to all class members who can be identified with a
reasonable effort
2. Prisoners: Notice of a forfeiture proceeding mailed to a
prisoner is constitutionally sufficient because he prison
used reasonable means to deliver mail to prisoners
iv. Posted Notice: Notice by posting on Ds residence is not
sufficient because they are often torn off doors
v. E-mail Service: Under FRCP 4f3, a court may authorize service
via e-mail when service by more conventional means has been
shown to be impossible
c. Effort to identify: Reasonable efforts to identify and locate affected
persons are required

141

i. Class actions: Failure to identify a significant number of class

members is fine
1. Rationale: Notice reasonably certain to reach most of
those interested in objection is likely to safeguard the
interests of all, since any objection sustained would inure
to the benefit of all
2. Distinguish future claims class actions: In class actions
involving future claims by members who did not manifest
an illness yet, Providing adequate notice may be
impossible due to problems of identification and
uncertainty caused for those who may not even know of
the exposure by the time notice was given
d. Contents: The notice must advise D the nature and place of the
proceeding
e. Constructive Notice: In some instances, if D cant be located after
reasonable efforts, publication or constructive notice is sufficient
f. Effect of Failure to Receive: If a constitutionally valid procedure is
used, the judgment is binding even if some people dont receive
notice. Due process requires reasonable efforts but have never actually
required actual notice
g. Duty to Make Further Efforts if Notice not Received: When the
state learns that its initial effort failed but were reasonable, it must
take reasonable additional steps to provide notice
3) Service of Process: The usual method for giving notice is service of a
summons and complaint on D directing that D file an answer or suffer from
default
i. Jurisdiction distinguished: Questions of jurisdiction and method
of service should be kept separate. Even where method of
service is proper, D can still challenge exercise of jurisdiction
ii. Methods of service:
1. Personal delivery: Process may be served on the person
a. Corporation: Service may be made to an officer or
management agent or an agent authorized by law
2. Substituted Service
a. Federal Rules
i. At Defendants Home: A copy of the
summons and complaint can be left at the
usual place of abode of the person to be
served with a person of suitable and
discretion residing within FRCP 4e2B
ii. In accordance with state law: Service can be
made pursuant to the law of the state where
the district court is located or pursuant to the
law of the state which service is effectedFRCP 4e1

142

iii. Waiver of Service: P may ask D to waive

formal service by sending a request for
waiver by first class mail
1. D who fails to waive service without
good cause: Can be liable for the costs
of formal service since D has a duty to
avoid unnecessary costs of service
2. Additional time: D who waives
receives additional time to answerFRCP 4d
iv. Defendant in Foreign Country: D may be
served by an internationally agreed means or
if there is none, as directed by the law of the
place of service, including personal delivery
or any form of mail requiring a signed receipt
or as directed by the court (unless forbidden
by that countrys law) FRCP 4f
b. State Law: State law on substituted service varies
i. At Ds office or home: A copy can be made to
office or abode plus mailing a copy to that
place
ii. Mail within a state: Copy can be mailed if the
person executes and returns an
acknowledgement of service
iii. By mail outside the state: Copy can be
served by using return-receipt mail, without
the need for execution of acknowledgement
by D
c. Service in Diversity Cases: The service procedures
of Federal Rule 4 are to be applied
iii. Immunity from service: In some jurisdictions, there are rules that
forbid service of process on a person who is in the state only to
participate in a legal proceeding
4) Timing of Notice- Prejudgment Seizures:
i. History:
1. Common law: P could have Ds property seized as a
method of coercing D to come to trial (replevin,
attachment, garnishment, sequestration)
2. Over time: The seizure came to be used to provide
security for any judgment the P might obtain in the
action.
a. Before D received notice: Very often, such
prejudgment remedies were available before D was
given notice of the action

143

ii. State law requirements: States placed limits on such

prejudgment remedies. The court must first consider whether
the prejudgment seizure by P is authorized by state law
1. Federal courts: Federal courts must apply state law
concerning the availability of pre-judgment remedies
unless a federal statute provides a prejudgment remedy
FRCP 64
iii. Procedural Due Process Requirements for Prejudgment Seizure:
In a series of cases, SCOTUS considered the constitutional
requirements for procedures attending issuance of prejudgment
remedies
1. Wages: Not sufficient because its a type of property
2. Chattels: If there is no provision for notice and a
preseizure hearing for procedures for writs of replevin, it
is not sufficient
a. Exceptions for extraordinary situations
i. If seizures are directly necessary to the
important governmental or general public
interest
ii. If the delay would be inimical to the public
interest and
iii. The seizures are limited to circumstances
where the state controls the initiation of the
proceedings
3. Household appliances: Allowed for writ of seizure
4. Bank account: Not sufficient because the property had no
intrinsic relation to the claim
5. Attachment of property without prior notice and an
opportunity for a hearing as applied in the case
a. Matthews Three Step Analysis
i. Private interest: E.g., Interests were
significantly affected because Attachment
can cloud title, impede sale and interfere
with borrowing on the property
ii. Risk of erroneous deprivation: Substantial
risk of erroneous deprivation
iii. Governmental interest: There must be a
significant interest of the state/government
1. Compared to other states: States
cannot have more exacting
requirements for seizure without
notice
b. Post-Doehr Decisions
i. Drug-forfeiture: Seizure of Ds home after his
conviction for drug trafficking violated due

144

process since he didnt receive pre-seizure

notice or opportunity to be heard
1. Erroneous risk of error: Owners are
entitled to affirmative defense of
innocent ownership
2. Government interest: Real property
cannot be abscond
ii. Cognovit Notes: If such arrangements are the
result of arms length negotiation between
sophisticated commercial entities, they are
enforceable over procedural due process
objections
1. Cognovit notes: In which debtor
agrees that in a default, the credit
may immediately and without notice
obtain a judgment against the debtor
iii. Delay in hearing: Administrative needs may
justify a delay of up to 30 days even though
unreasonable delay in holding a postdeprivation hearing may violate due process
5) Mullane v Central Hanover Bank and Trust Co: A state may determine
the rights of non-resident beneficiaries in the settlement of trust accounts if
the notice provided is constitutionally adequate
a. Notice: must reasonably convey the required information and must
afford a reasonable time for those interested to make their appearance
b. Due process only requires: Notice reasonably certain to reach most of
those interested in objecting
c. Publication notice: It is upheld if nothing else is reasonably practicable,
such as when the parties are missing or unknown or if theyre
whereabouts could not be ascertained by due diligence or for whom
future interests were too conjectural to be known with certainty
i. When parties addresses were known: It is unconstitutional
d. Personal notice on all parties: It is not necessary. Sometimes notice to
a few will likely get notice to others
e. Serious effort: The defendant does not need to receive the notice but
just requires P to make a serious effort
f. Other requirements:
i. State: States have different rules for how old someone has to be
for service or what service is necessary
ii. Forums technical specifications: Notice must also meet the
forums technical specification of its form

Venue and Forum Non Conveniens

145

1) Venue: Determines where (geographically) the case will be filed within the
chosen court system. It gives P choices of where to bring the suit
a. Definition: Venue is a statutory limitation on where a suit may be
brought. It may prevent a plaintiff from bringing suit in a particular
court even though the court has jurisdiction.
b. Purpose: Venue Rules are designed to prevent P from suing where it
would be burdensome for D to appear and defend
c. Application: It applies to the original parties of the action and are not
affected by third parties added by impleader or otherwise
2) Timing: Venue usually is considered after it is determined that there is
statutory authorization for the exercise of jurisdiction and that the exercise of
jurisdiction is constitutional
3) Waivable Under Rule 12h1: An objection must be raised in a timely
manner or is waived, but unlike PJ, proper venue is not a constitutional
requirement and cannot be raised by way of collateral attack challenging
enforcement
4) Improper Venue: If venue is improper, D can:
a. Move for dismissal under 12b3: In federal court venue is waived unless
its raised in the first Rule 12 motion or in the answer if there is no Rule
12 motion
b. The court may move the case to the appropriate court under 28 USC
1404 in the interest of justice
5) Local and Transitory Actions:
a. Local Actions: Generally, a local action is one that directly involves
title, possession or injury to land.
i. Statutory: In most states, local action is statutory and may
possibly include some actions other than in rem and quasi-in
rem
ii. Federal court: Local action rule is abolished
b. Transitory Actions: Transitory actions are actions that may be brought
wherever the defendant can be served
6) Transitory Actions Rules Under Section 1391: Venue in the federal
courts is determined solely by federal law
a. Federal districts: Venue in the federal system is tied to the 94 federal
districts
b. Venue Choices Under Section 1391b: Congress put all the general
venue choices for all cases in Section 1391b
i. Residence of the Defendants
ii. Events Underlying the Claim
7) Venue Based Upon Residence of the Defendant Under Section
1391b1: Under this section, the plaintiff may lay venue in any district which
any defendant resides, if all defendants are residents of the state in which the
district is located
a. Proper Venue: Venue can be proper in two situations
i. All Defendants Have the Same Residence: If all the defendants
reside in one district, that district is proper

146

ii. Different Districts: If all defendants reside in different districts of

the forum state, venue is proper in any district in which a
defendant resides
b. Defining Residence: The residence of an individual is not their
citizenship
i. Natural Persons Under Section 1391c1: The natural person
resides in the judicial district where he is domiciled
1. Alien Defendant: Section 1391c1 applies to aliens with a
permanent residence and they reside where they are
domiciled
2. Natural Person Not Residing in US Under Section 1391c3:
Any natural person not residing in the US may be sued in
any district
ii. Business Associations Under 1391c2: The residence of all
business associations are the districts in which it is subject to
personal jurisdiction with respect to the civil action in question
1. Corporations and Non-incorporated Businesses: Rule
1391c2 applies to them
2. Personal jurisdiction: Once the court assessed personal
jurisdiction, it also assessed the defendants resident
3. Businesses in a State with Multiple Districts Under Rule
1391d: A businesss residence is assessed with respect to
each district and not with regard to the state as a whole
a. Significant contacts: A corporation resides in the
district in which it has the most significant contacts
b. Minimum contacts analysis: The court treats each
district as a separate state to see if the
corporations contacts justify personal jurisdiction
there
8) Venue Based on Events Under Rule 1391b2: The plaintiff may lay venue
in any district in which a substantial part of the events or omissions giving
rise to the claim occurred
a. General jurisdiction: A business is subject to general jurisdiction where
it is formed and where it has its principal place of business
b. Specific personal jurisdiction: Beyond general jurisdiction, we can
assume there will be districts in which the business is subject to
specific jurisdiction since an act or omission there gave rise to the
claim against it
9) Fallback Venue Provision Under Section 1391b3: The fall back provision
applies only when no district anywhere in the US satisfies either of the first
two choices.
a. Authorization of Venue: The plaintiff may lay venue in any district in
which any defendant is subject to the courts personal jurisdiction with
respect to such action, if there is no district in which the action may
otherwise be brought

147

b. Rare cases: Such a case is rare and almost always involves a claim that
arose entirely outside the US
c. Defendants residence: Fallback cannot be used if all Ds are residents
of a single state since 1391a1 and b1 would apply
i. Single D cases: Venue not proper in a district where PJ can be
obtained if D is a resident of another state
d. Substantial portion of acts giving rise to the claim: Does not apply
since section 1391a2 or b2 suffices.
i. Only: Fallback provision only applies if no substantial portion of
the acts or omissions giving rise to liability happened in this
country
10)
Cases Removed from State Court Under Rule 1390c: The venue
rules only apply when a plaintiff files a case in federal court
11)
Special Venue Statutes
a. Additional venue options: Venue may be proper in certain locations in
addition to the districts allowed under the general rules
i. Patent infringement actions: Venue proper if D has a regular and
established place of business in the district where patent
infringement occurred 28 USC 1400b
ii. Copyright suits: Venue in copyright suits is proper in any district
where D or his agent may be found 28 USC 1400a
b. Substitute venue: In a few type of cases, venue is proper only in the
districts specified by the special statute
i. Federal tort claims under 28 USC 1402b: Proper only in the
district where P resides or where the act complained of occurred
ii. Statutory impleader under 28 USC 1397: venue is proper only in
a district where a claimant to the fund resides
c. Aliens: In a suit against an alien, venue is proper in any district under
28 USC 1391d
i. Distinguish citizenship for determination of diversity: Where the
residence of an alien must be considered to determine where
there is SMJ due to complete diversity of citizenship, an alien
admitted to the US for permanent residence is deemed a citizen
of the state in which the alien is domiciled
12)
Federal Transfer Provisions: Within a federal system, cases can be
transferred from one federal district to another; state lines are irrelevant.
a. Ways to Transfer
i. Motion to Transfer:
1. Defendant: The defendant can seek transfer by making a
motion to transfer under the appropriate statute
2. Plaintiff: Occasionally the plaintiff will move to transfer
but this is odd because the plaintiff chose the forum
ii. Court order: The court can order transfer sua sponte but the
judge must inform the parties of the possibilities and hear
objections

148

b. Burden of proof: The party seeking transfer has the burden of showing
that the case should proceed in another place in the judicial system
c. Transferee Court: The court in which the case is transferred takes over
the case at its present stage, and it does not start the litigation over
afresh
d. Common Themes of Transfer:
i. Improper venue: All judicial systems permit transfer when the
transferor court is not a proper venue
ii. Proper venue: Statutes generally permit transfer based on an
assessment of the relative convenience to the parties and
witnesses
e. Transfer Statutes in Federal Court: In federal court there are two
transfer statutes
i. Two Transfer Statutes:
1. Section 1404a: 1404a applies when the transferor court is
a proper venue
2. Section 1406a: 1406a applies when the transferor court is
the improper venue
a. Dismissal: A case filed in an improper venue is
subject for dismissal as well under Rule 12b3
ii. Determination: The assessment of which statute applies requires
an analysis of whether the original federal court is a proper veue
f. Section 1404a Transfer: This section permits transfer for the
convenience of parties and witnesses in the interest of justice
i. Center of gravity test: The court must find whether another
district is a place where the litigation makes more sense than
the proper venue
ii. Plaintiffs choice of forum: The plaintiffs choice of forum is
entitled to some deference
iii. Considerations: The court makes the following considerations
1. Events: Where the relevant events took place
2. Witnesses: Whether one court could compel attendance of
witnesses more readily
3. Location: Location of evidence and witnesses
4. Court docket: Relative court docket loads in the two court
5. Law: Familiarity with applicable law
6. Forum Selection Clause: Existence of a forum selection
clause
g. Section 1406a Transfer: Since cases involving this section are pending
in an improper venue, the court may dismiss it or if transfer if its in
the interest of justice

13)

Forum Non Conveniens:

a. Forum Non-Conveniens: Even when jurisdiction and venue are
proper, courts may decline to exercise jurisdiction on the ground that
the location the P selected for the case is grossly inconvenient

149

b.
c.

d.

e.

i. Dismissing on FNC grounds: Court can dismiss even without

resolving whether SMJ or PJ if it determines that a foreign
tribunal is a more suitable forum
1. Exception: If the other forum doesnt hear claims like the
one at hand, then the other forum is not an alternative so
it wont be dismissed
Time Limit: Since FNC is not in Rule 12b, the federal courts generally
conclude that there is no set time limit for raising it
Present Use
i. Federal Courts:
1. Transfer: When the inconvenience can be solved by
transfer to another federal district, court may not dismiss
2. Dismissal: If the proper forum is another country, the
federal court can dismiss
ii. State Court: when the convenient court is not within the state
and transfer is therefore not possible, forum non-conveniens
remains important
Rationale: Courts are not required to make their jurisdiction available
to parties who engage in unfair forum shopping and thereby impose
substantial inconvenience on other parties and expense and burden on
the courts of the forum selected by P
Piper Test: Only if a party can show that an alternative forum is
clearly more appropriate, should a motion for forum non conveniens be
granted
i. Test for Granting a Motion for Forum Non Conveniens
1. Availability of the court: To see if the court is available, the
court msut balance Private and Public Factors
2. Adequacy: The other court must also be adequate
ii. Balancing test: Both public interest factors and private interest
factors must be weighed
1. Public Interest Factors: Public factors include
a. Administrative difficulties in keeping the case
b. Local interest in having localized controversies
decided at home
c. The desire to have a case tried in a forum well
versed in the law that will apply
d. Avoiding undue problems with conflicts of law or
foreign law and
e. The unfairness of burdening citizens with jury duty
in a case unrelated to the forum
2. Private interest factors: The private factors include
a. Relative ease of access to evidence
b. Ability to compel attendance of witnesses at trial
through subpoena
c. Expense of obtaining attendance of willing
witnesses

150

iii. Adequacy: Only if the remedy provided by the alternative is so

clearly inadequate or unsatisfactory that it is no remedy at all
should the unfavorable change in applicable law be given
substantial weight
f. Procedure: D must make a motion to dismiss on grounds of
inconvenience
i. Showing required: D must show that P selected a grossly
inconvenient location for suit
1. Distinguished from transfer: In federal court, the showing
necessary for transfer is not as compelling as the showing
needed to justify dismissal
ii. Factors: Court is to consider a number of private and public
factors in making a decision to dismiss
iii. Weight given Ps choice: Usually substantial weight is given
to Ps choice to sue in a forum where venue and jurisdiction
requirements are satisfied. When P is foreign, that deference is
not warranted
iv. Change in Substantive Law: The fact that law in the more
convenient forum is less favorable to P has no significant weight
v. Adequate Alternative Forum Available: The court cannot
dismiss unless an adequate alternative forum is available to P
1. Adequate remedy: The alternative forum must offer an
adequate remedy; If there is no possibility of foreign
judicial relief, the American court may consider the forum
is inadequate
a. Differences sufficient: The remedy does not need to
be the same as in American court and the
procedure of the foreign court can differ
2. Jurisdiction: The alternative forum must have jurisdiction
over D, but the problem can be solved by a stipulation by
D to submit to jurisdiction there
vi. Conditions on Dismissal: The court can condition the
dismissal to protect against unfairness to D, usually by
conditioning the motion upon the defendants waiving certain
defenses or agreeing to certain things
1. Common example: Stipulation by D that SOL will be tolled
as of the time suit was filed in the inconvenient forum, so
P does not risk a limitations defense between the delay
vii. Motion to stay the Pending Case: Though forum non conveniens
is usually raised in a motion to dismiss, the defendant can make
a motion to stay the pending case. The court will keep the case
in the docket but will not permit activity on that case
g. Effect on Choice of Law: Because FNC results in a dismissal, P must
file a new suit and the choice of law rules that apply are determined by
the forum of the new suit

151

h. Contractual Limitations on Forum: Dismissal in favor of litigation in

another forum can also occur where the dispute arises out of a
contract where the parties have agreed to litigate in a specific forum
but transfer isnt possible
i. Federal law: Federal common law, clauses are generally
enforceable even if they result in a dismissal because the forum
chosen is in another country
1. Printed passenger ticket: A forum selection clause on a
printed passenger ticket is enforceable even though not
the subject of bargaining unless enforcing it would violate
fundamental fairness
a. Ship passenger tickets: Congress invalidate such
clauses under 46 App. USC 183c, but later reamended the statute to restore the original
language, although apparently intended to change
the result of Carnival Cruise Lines
b. Other consumer situations: Such clauses may be
valid in other consumer situations
ii. State law: In many states, the enforcement of such clauses are
limited since the parties cannot by agreement oust a court with
jurisdiction to decide the dispute
iii. Choice between state and federal rules in federal court: SCTOUS
did not decide this question but it did decide that where transfer
to the selected forum is possible under 28 USC 1404a, the
existence of the clause is a significant factor
14)
Piper Aircraft v Reyno: Dismissal may not be barred solely because
of the possibility of an unfavorable change in law
a. Starting point of 1404a: The plaintiffs choice of forum is entitled to
some deference
i. Greater deference in dismissal cases: because it is harsher than
transfer
1. Foreign citizens: The courts accord less deference to a
foreign P
ii. Test: Only if a party can demonstrate that an alternative forum is
clearly more appropriate should a motion under FNC be granted
b. Rule: When an alternative forum has jurisdiction to hear a case and
when trial in the chosen forum would establish oppressiveness and
vexation to a D out of proportion the Ps convenience or when the
chosen forum is inappropriate because of considerations affecting the
courts own administrative and legal concerns, the court may dismiss
the case in the exercise of sound discretion by applying the list of
private and public interest factors
c. Conditional dismissals: the court will grant Ds motion to dismiss
conditioned upon D waiving certain defenses or agreeing to certain
things

152

d. Motion to stay: D can make a motion to stay the pending case

(suspend). A court may prefer to do this to ensure that litigation in the
other court actually may proceed
i. By staying the case: P need not worry that the statute of
limitations might be running in the interim

Subject Matter Jurisdiction

1) Issue: Subject matter jurisdiction concerns whether a type of case may be
brought in federal court
2) Subject Matter Jurisdiction: Whether a court has authority to hear a case
may depend on the subject matter involved
a. Limitations reflect the notion: of the proper relation between federal
and state power
b. Concurrent authority: The federal and state courts largely share subject
matter authority and many diversity and federal question cases can be
heard in either
3) Difference with Personal Jurisdiction
a. Personal jurisdiction: Limits the power courts over persons based on
geographic location
b. Subject matter jurisdiction: it limits the power of court based on case
type. It allocates authority between court systems or courts among a
given system
c. Requirements: The court must both possess personal and subject
matter jurisdiction
d. Collateral attack: Unlike notice and PJ, a defect in SMJ cannot be
challeneged in a collateral attack
4) Defects Not Waivable: Lack of SMJ is not waivable so it may be raised as a
basis for dismissing the case at any time
a. Plaintiffs burden: plaintiff must include in the complaint allegations
stating the SMJ jurisdiction of the court FRCP 8a1
b. Defendant can raise an objection at any time: D can raise the objection
at any time during the pendency of the case, even after final judgment
is entered and the case has been appealed- FRCP 12h3
i. Removal: D can even remove the case to federal court, lose here
and then raise lack of SMJ for invalidating judgment for D
ii. Collateral attack: SMJ can be even raised on collateral attack,
after all appeals have been exhausted or waived and the
judgment has become completely final
c. Court to raise Sua Sponte: Even if the parties do not raise the issue,
the court can raise SMJ on its own motion
d. Jurisdiction must be resolved before courts addresses merits of suit:
The question of whether a court has jurisdiction must be resolved
before the merits of the case
i. Personal jurisdiction timing: PJ may be resolved before SMJ
challenge

153

ii. Forum non conveniens: A district court can dismiss on the

grounds of FNC without resolving first the jurisdictional
challenges if D meets the heavy burden to justify a dismissal
5) State Courts: State courts usually exercise general jurisdiction, however
there may be SMJ limitations
a. Specialized courts: There are specialized courts that deal exclusively
with certain types of cases
b. Monetary limitations: In some states, there are courts that have
jurisdiction over claims below a certain dollar amount (small-claimscourts)
c. General jurisdiction: Each state has some court of general jurisdiction,
so any type of claim can be brought except claims within the exclusive
jurisdiction of federal courts
d. Concurrent jurisdiction: Generally, state courts have jurisdiction
concurrent with the federal to hear federal claims.
i. Plaintiffs choice: P may choose to file her case in either federal
or state courts
ii. State courts refusal; State court may not refuse to enforce
federal claims unless federal law provides otherwise
iii. Exception: Federal law grants the federal courts exclusive
jurisdiction in certain types of cases so state courts cant
adjudicate those claims
1. Examples
a. Patents, copyrights, and trademarks- 28 USC 1338
b. Federal anti-trust litigation
c. Federal Securities Act- 15 USC 78a
d. Distinguish-Federal defense: When an issue arises
as a defense to a state law claim, the fact that a
claim for affirmative relief on the federal ground
would be subject to exclusive federal jurisdiction
does not prevent the state court from considering
that defense
6) Federal Courts Jurisdiction
a. Limited jurisdiction: Federal courts, unlike state courts, are courts of
limited jurisdiction
i. Constitutional grant: Article 3 establishes the scope of federal
SMJ as claims
1. Arising under the Constitution
2. Federal law
3. Affecting ambassadors or
4. Between citizens of different states
ii. Statutory grant: There must also be some statutory grant by
Congress vesting the federal courts with jurisdiction. It is not
enough that an exercise of federal jurisdiction is permitted under
the Constitution
b. Tactical Considerations: Litigants with a choice between state and
federal court often prefer federal court for many reasons
154

i. Location: Federal courts are located in more popular areas

ii. Broad discovery: Federal courts afford broader opportunities for
discovery
iii. Speedy trial: Federal courts offer a shorter delay to trial but if
the delay is greater, a party wanting delay might want to litigate
there
iv. Single assignment system: In most federal courts, cases are
assigned to a single judge at the outset so it may be more
efficient
v. Source of jurors: Federal juries are drawn from the entire federal
district
vi. Manner of selecting judges: Federal district judges are
nominated by the President and confirmed by the Senate so
they are not under political pressure
7) Two Subject Matter Statutes
a. Federal Question Statute: 28 USC 1331
b. Diversity Statute: 28 USC 1332

Federal Question
1) Constitutional Grant
a. Scope of Federal Questions
i. Constitutional claims
ii. Federal laws
iii. Treaties
iv. Ambassadors and consuls
v. Admiralty and maritime
vi. US is a party
b. Broad view: SCOTUS allowed federal jurisdiction over a case where
the Bank of US, a private bank created by Congress, was a party
because the bank was a federal creation
i. Special federal question statutes: SCOTUS found such broad
definition in some federal question statutes like the Foreign
Sovereign Immunities Act
c. Claims based on federal substantive law: Congress can assign to
the federal courts jurisdiction over claims it creates only by
promulgating or providing for a body of federal substantive law to
govern the claims or delegating authority to create such substantive
law to the courts
2) General federal jurisdiction statute Under 28 USC 1331: It grants
jurisdiction over a case that arises under any federal law.
a. State court jurisdiction over cases raising federal questions: Jurisdiction
in such cases is concurrent between state and federal courts
b. Supreme Court Review: The Supreme Court has jurisdiction to review
decisions of state courts involving federal law issues under 28 USC
1257
3) Standards for Determination: There are two possibilities

155

a. Federal law creates claim: If federal law creates a claim to be sued

upon, there is no problem
i. Under-inclusive test
ii. Implied claims: The federal claims include claims implied by
courts in addition to private rights of action explicitly created by
Congress
b. Non-federal claim that turns on construction of the federal law:
If the claim being sued upon is not one crated by federal law but
resolution on the suit requires construction, FQ is proper where the
vindication of a right under state law necessarily turned on some
construction of federal law
i. Absence of implied federal claim: No implied federal cause
of action if a circumstance would flout the will of Congress
1. Absence of a federal right of action: is evidence relevant
to, but not dispositive of, the determination whether there
is FQ
ii. Substantial bearing on the outcome: Where federal law is
an element of a state law claim, it suffices to support federal
question jurisdiction only where it is important to the outcome of
the case
iii. Nature of the federal interest: It is helpful to focus on the
nature of the federal issues at stake. Validity of the act is
substantially related
1. Federal claim not necessary: A federal right of action is
not necessary for federal question jurisdiction over a state
law. The federal interest may have a nature and
importance required by that decision in other ways
4) Well-pleaded complaint rule: A federal court will not have FQ unless the
federal question appears in Ps well-pleaded complaints
a. Answer: federal questions raised by an answer is not sufficient
b. Federal element of non-federal claim properly included under
pleading rules: The federal issue must be an element of the state-law
claim that is required to be included in the complaint to state a claim
under the applicable rules of pleading
i. Situation: Sometimes P who cant get diversity injects a federal
law issue into a complaint even though its not required to be
included by the rules governing pleadings
c. Anticipation of defense insufficient: An allegation in a complaint
that is in anticipation of a defense is not a sufficient basis for FQ
jurisdiction
d. Federal counter-claim insufficient: A counter-claim based on
federal law, even if compulsory does not create a federal question
e. Removed cases: A case cannot be removed on the basis of FQ unless
FQ appears on the face of Ps well-pleaded complaint. The fact D raised
a federal defense is irrelevant

156

i. Ps election not to assert federal claim: To prevent D from

removing, P is allowed to artfully plead her cases to avoid
federal questions
1. Partial exception: Supremacy Clause makes it possible for
a state cause of action to be preempted by federal law
a. Congress: may completely preempt a particular
area that any claim in that area is necessarily
federal in character
2. Distinguish- Federal claim preclusion: Even though a claim
is barred under res judicata, this effect does not displace
state law in the same manner as Congress has done in
the statutory schemes above and claim preclusion is an
affirmative defense.
a. If P later files a state court suit asserting only a
state law claim based on the same events: It is
usually subject to res judicata but it is not ground
for removal on the basis of this sole fact
ii. Federal counter-claim insufficient: A federal law counterclaim in
state court does not create federal SMJ and does not provide a
basis for removal
f. Declaratory Judgment Cases: When actions are filed under the
Declaratory Judgment Act, jurisdiction does not depend on whether a
federal question appears on the complaint but the court must pretend
the action is for a coercive remedy and determine whether a wellpleaded hypothetical complaint for that coercive remedy would have
presented a federal question
i. Declaratory Judgment Act: Under the Declaratory Judgment Act,
parties are allowed to seek a declaration of rights rather than a
specific remedy
g. Supreme Court Jurisdiction: The well-pleaded complaint rule does
nt apply to cases appealed from state courts to SCOTUS, even though
lower federal courts didnt have SMJ
5) Centrality of the Federal Issue: Section 1331 provides a forum for the
vindication of federally created remedies. If Congress did not create a federal
right of action, the court was not free to supplement that decision in a way
that makes the decision meaningless
a. Grable Test: The court gave a three factor test for determining whether
a state law claim arises under federal law
i. Federal issue: The claim needs to raise a federal issue
ii. Substantial: The federal issue must be disputed and substantial
and
iii. Balance: The federal jurisdiction shall not disturb any
congressionally approved balance of federal and state judicial
responsibilities
1. Swamp courts: The claim cannot swamp federal courts

157

6) Plausible assertion of federal right sufficient: A federal claim or

question is sufficient to vest the court with jurisdiction unless it clearly
appears to be immaterial or made solely for the purpose of obtaining
jurisdiction or where the claim is wholly insubstantial and frivolous
a. Effect of dismissal on the pleadings: If the court later dismisses the
case for failure to state a federal claim, the decision is on the merits.
i. Res Judicata Differences between effect of dismissal for lack of
SMJ and dismissal for failure to state a claim: If the court
dismisses for failure to state a claim, that decision acts as res
judicata. Lack of SMJ has no res judicata effect
ii. Supplemental Jurisdiction: If a court dismisses for lack of
jurisdiction, it cant hear any part of the case. But if the court
decides it has jurisdiction and dismisses for failure to state a
federal claim, it may exercise supplemental jurisdiction over
related state law claims
7) No jurisdictional amount: There is no minimum amount of controversy
requirement
8) Louisville and Nashville RR Company v Mottley: Alleging an anticipated
constitutional defense in the complaint does not give a federal court
jurisdiction if there is no diversity of citizenship between the litigants
a. Plaintiffs complaint: Must be based on the federal laws of the
Constitution to confer jurisdiction on the federal courts. Even if its
evident that a federal question will be brought up at trial, the Ps cause
of action must be based on a federal statute or Constitution to have a
federal question that would grant jurisdiction to the courts
b. Appellate Level: A suit may be dismissed at the appellate level for lack
of subject matter jurisdiction
c. Well-pleaded complaint rule: To tell whether there is federal question
jurisdiction, the court only needs to look at Ps complaint
d. Rule 12: Even though P or D never addressed a federal question
jurisdiction, the court has a duty to consider if jurisdiction was
appropriate

Diversity Jurisdiction
1) Diversity Jurisdiction Under 28 USC 1332: Controversies between
citizens of different states
a. Purpose: To afford an alternative forum to out of state litigants who
might be victim of local prejudice against outsiders
b. Diversity: The plaintiff and D have diverse citizenship if one is a
citizen of one state and the other is a citizen of another state or an
alien or foreign national.
i. Two aliens from different countries: There is no diversity of
citizenship

158

ii. Minimal Diversity Required: The Constitution requires that only

one P be of different citizenship from one D, even if there are coparties who are not of diverse citizenship
iii. Current residence: Current residence is not enough. There must
be an intention to remain indefinitely
9) Diversity Jurisdiction Analysis:
a. What are the citizenship of each parties?
b. Are the parties diverse?
c. Is there complete diversity?
d. Is there collusive joinder?
e. Does it pass the Amount in Controversy Requirement?
10)
Diversity of Citizenship
a. Complete Diversity Requirement: Every plaintiff must be of diverse
citizenship from every defendant.
i. Parties on the same side: Parties on the same side of the dispute
can be co-citizens
ii. Rule 21 Misjoinder: The courts can use Rule 21 to maintain
jurisdiction since it relates back to the date of the complaint, but
only if the parties dropped are not indispensable under Rule 19
b. Statutory Exceptions: Congress authorized federal court diversity in
some instances where there is no complete diversity
i. Interpleader Under 1335: Permits a federal court to exercise
jurisdiction in interpleader actions whenever any two or more
adverse parties are of diverse citizenship
ii. Class Action Fairness Act: Over certain class actions in which
there is minimal diversity between the class members and
named D
iii. Multi-party/Multi-forum Jurisdiction Under 1369: Confers
jurisdiction arising from accidents that involve the deaths of at
least 75 people so long as there is minimal diversity between
adverse parties
c. Alienage Diversity Jurisdiction:
i. Foreigner: 1332a2 confers federal SMJ over cases involving a
citizen and a foreigner
ii. Additional party aliens: 1332a3 Confers SMJ over cases involving
complete diverse citizens of states where additional aliens are
additional parties
d. Determining Citizenship
i. Natural persons: A person is a citizen of the state if it passes
two requirements:
1. Two requirements of citizenship:
a. American Citizen: Citizen of the US
b. Domicile: Domiciled in that state
2. One Domicile: A person has one domicile at any given
point
a. Changing Ones Domicile: To change ones
domicile, there must be two concurrent factors

159

i. Physical Presence: Establishing physical

presence in the new state with
ii. Subjective intent: The subjective intent to
make the state her home for the foreseeable
future
b. Subjective Intent: Courts often look to objective
facts to determine intent. They consider
information such as
i. Voter registration
ii. Payment of taxes
iii. Location of bank accounts
3. US national living abroad: An American citizen
permanently living abroad has no domicile within US and
is not a citizen of any state. Such a person cant sue or
cannot be sued in federal court on grounds of diversity
4. Aliens with Permanent Residence: The permanent resident
aliens are treated aliens and not as citizens of the US
5. Citizens of DC, PR and US territories: They are treated as
citizens
ii. Corporations: A corporation is a citizen of every state it is
incorporated in and of the state in which it has its principal place
of business
1. Corporate Citizenship: A corporation is a citizen of
a. Incorporation; Every state in which it is
incorporated and
b. Principal place of Business: A state in which it has
its principal place of business
2. Principal place of business: The principal place of business
is the place where a corporations officers direct, control
and coordinate the corporations activities.
a. Generally: In practice it should be the place where
the corporation maintains its headquarters
b. Headquarters: The actual center of direction,
control and coordination, and not simply an office
where the corporation holds its board meetings
3. Distinguish venue: A corporate D is usually treated as a
resident of every state in which it is subject to PJ, not
merely its principal state of business
iii. Other artificial entities: Unincorporated entities created by
state law are viewed as citizens of each state in which any
member is a citizen
1. Partnerships: A business partnership is viewed as an
association so citizenship of each partner must be
considered
a. Limited partnerships: The liability of limited
partners is restricted to the amount of their

160

investment and they have negligible power to

control the partnership. Citizenships of all limited
partners must be taken into account
i. Difference from general partnerships: In
general partnerships, partners have full
individual liability for the partnerships debts
ii. Distinguish- professional corporationBecause the shareholder attorneys in them
remain individually liable for legal
malpractice, their citizenship should be
considered for purposes of determining
complete diversity
1. Lower federal courts: Only the
citizenship of the professional
corporation should be considered
2. Labor unions: Citizenship of all union members must be
considered since theyre unincorporated
3. Underwriting syndicate: Underwriting syndicate can have
citizenship of diversity for every name (investor)
a. Real party interest exception: A real party in
interest only needs to be considered
4. Business trusts: If a state law gives the trustees power to
sue and be sued as individual in their capacity as trustees
in connection with trust affairs, the trustees sue or sued in
their own right and their citizenship and not hat of nonparty shareholders is to be considered
5. National bank: 28 USC 1348- The Comptroller of the
Currency of US Treasury is deemed a citizen of the state
in which its main office is located
6. Class Action Fairness Cases: An unincorporated
association is the citizen of the state where its principal
business is in and of the state under whose laws it is
organized
iv. Executors, Guardians and Trustees Under 1332c2: The legal
representative of an estate or infant or incompetent has the
citizenship of the decedent, infant or incompetent
v. Fictitious Defendants: If D is unable to ascertain the name of a
potential D, some states allow P to sue the unknown D under a
fictitious name
1. Some federal courts: Held cases could not be heard due
to uncertainty
2. 28 USC 1441 amendment: For purposes of removal,
citizenship of unknown D is to be disregarded
a. Fictitious D: neither destroys diversity jurisdiction
nor require fictitious D to be named or dropped
from the case
161

e. Time for Determination: Diversity need only exist at the

commencement of the action
i. Change before filing: Immaterial parties had same citizenship
when the claims arose and a party may even move to another
state to create diversity, so long as there is a genuine change of
citizenship
ii. After filing: A change in either partys citizenship after filing will
not deprive the court jurisdiction
iii. Substituted party: If P transfers his interest after filing and the
transferee is substituted for P, diversity is not destroyed
iv. Partial exception- removal: Where an action is removed to
federal court from state court, diversity must exist at the time of
filing of the suit and on the date of the filing of the notice of
removal
f. Realigning Parties: In determining diversity, Courts will look to the
real interests of parties and may realign them according to their real
interests. Generally, courts look to the ultimate interests of the parties
in realigning
i. Shareholder derivative action: An action where a shareholder
brings a suit to enforce a right of the corporation because the
officers refuse to bring the suit directly
1. Diversity: The corporation is likely to be realigned as D for
diversity purposes if it is controlled by persons
antagonistic to the shareholder P
g. Efforts to Create Diversity: 28 USC 1359 provides that there is no
jurisdiction when a person has collusively or improperly has been made
a party or joined in order to invoke federal jurisdiction
i. Assignment of claim: When a claim is assigned to establish
diversity or assigned without significant consideration, the
assignment will not create diversity if diversity would not exist
had the action been brought in the name of the assignor
1. Exception: If substantial consideration is given for the
assignment, jurisdiction exists even with no diversity
between assignor and D
ii. Appointment of executor: Appointment of an out-of-state
executor will not create diversity since the executor is a citizen
of the decedents state
iii. Distinguish-change of citizenship: A genuine change of
citizenship can create diversity
h. Efforts to Defeat Diversity: There is no similar statute forbidding
efforts to defeat diversity
i. Joinder of non-diverse D: P may add claims against non-diverse
D and defeat diversity
1. Limitations

162

a. Valid claim: P must have a valid claim against the

non-diverse D or the presence of this D is
disregarded
b. Alternative grounds for federal jurisdiction:
Removal may be possible if non-diverse Ds are
sued if federal jurisdiction can be justified on some
other basis, such as federal question
c. Class Action Fairness Act: Joining a non-diverse D
does not preclude subject matter jurisdiction since
the statute only requires minimal diversity
ii. Appointment of non-diverse representatives: The appointment of
a non-diverse executor or administrator cannot defeat diversity
since the citizenship is the same as the decedents
i. Effect of Lack of Diversity
i. Dismissal of non-diverse party: P can solve lack of diversity by
dismissing the non-diverse party
ii. Necessary party: If the non-diverse party is a necessary party, P
may be unable to proceed in federal court
11)
Complete Diversity
a. Ochoa v. PV Holding Corp: Evidence of recent employment in a
state along with a subjective statement of intent to live in the state
indefinitely, do not necessarily satisfy a partys burden of showing
diverse citizenship in order to invoke a courts subject matter
jurisdiction
i. Possible evidence of domicile
1. New drivers license
2. New bank account
3. Lease of a new apartment
ii. Possible undermining of domicile:
1. Lack of objective evidence to support intent
2. Ties to a different state
3. Where the D was when the accident occurred
iii. Party seeking diversity: Has the burden to show citizenship
12)
Amount in Controversy Under 1332a: The diversity statute limited
federal jurisdiction to cases in which more than a certain minimum amount
was in controversy. The amount is determined by the sum claimed by P in
good faith
a. Amount in Controversy: The amount in controversy must exceed
$75,000
i. Time for Computing: The amount is computed as of the date
of commencement of the action
ii. Interests and Costs are Excluded: The amount requirement
is exclusive of interests or costs
1. Interests: That which accrues because of delay in
payment

163

a. Exception: If the interest claimed is itself the basis

of the suit, its included in the amount of
controversy
2. Costs: Costs are all the expenses of litigation, except
attorneys fees and so include things like filing fees, fees
to compel attendance of witness, discovery costs
a. Exception: Attorneys fees if recoverable can be
included in the amount in controversy
iii. Plaintiffs Ultimate Recovery is Irrelevant: The plaintiffs ultimate
recovery in the case is irrelevant
iv. Recovering Less than AIC Under 1332b: If a plaintiff ultimately
recovers less than 75k, the plaintiff may not recover her costs
from the defendant and the plaintiff may have to pay the
defendants costs
b. Legal Certainty Test: The jurisdictional amount is satisfied unless Ps
complaint shows to a legal certainty that she could not recover more
than the minimum amount
i. No need to itemize damages in the complaint: P does not need
to show how she arrived in the amount of damages claimed
1. FRCP exception: FRCP requires that certain disclosures be
made, including a computation of any damages
ii. Good faith limitation: If the claim was made in good faith, there
only needs some legal possibility of recovering the minimum
amount
1. Removed cases: Determination may be less strict in
actions removed from state to federal since P would
presumably have no incentive to inflate her claim to
satisfy federal jurisdictional requirements
iii. Effect of judgment for a lesser amount: The fact actual recovery
does not exceed the amount does not affect the jurisdiction as
long as the claim was made in good faith
1. Courts discretion: But the court may deny Ps costs of suit
or impose them on P under 28 USC 1332b
iv. Valuing claims for non-monetary relief: Where the remedy is not
money, courts are split whether the relief should be valued from
Ps perspective or Ds perspective
v. Valuing claims for declaratory relief: Amount in controversy is
the amount of the claim that would be asserted by the
declaratory relief D against the declaratory relief P. The analysis
should resemble the non-monetary relief analysis
vi. Interests and costs: Interests and costs are excluded
1. Exceptions: attorneys fees that are recoverable by
contract or by statute are considered part of the matter in
controversy

164

c. Aggregation of Claims to Satisfy Requirement: Whether separate

claims for less than the jurisdictional amount can be aggregated to
satisfy the requirement depends on certain factors
i. Claims of single P against single D: All claims of P against D,
whether or not related, can be aggregated to meet the minimum
ii. Claims of single P against several D: Only claims for which all D
are jointly liable to P may be confined
1. Joint tortfeasors: It would not arise where Ds are joint
tortfeasors
2. Joint co-owners: Joint liability arises where Ds are coowners of property
3. Conspiracy: When P alleges D inflicted separate harms on
her due to conspiracy, allegations of conspiracy may
make Ds jointly liable and therefore permit aggregation of
amounts
iii. Claims of several Ps against single D: Claims of multiple Ps can
be aggregated only if they have a common undivided ownership
interest in the claim
iv. Counter-claims: In general, the amount sought on a counterclaim cant be aggregated with Ps small claim to satisfy the
amount
1. Distinguish- Jurisdiction over counter-claim where P
satisfied the minimum:
a. Compulsory counter-claim: When Ds counter-claim
is compulsory, it need not satisfy the jurisdictional
minimum because it is within the supplemental
jurisdiction of the court
b. Permissive counter-claim: There must be an
independent jurisdictional basis and the minimum
requirement must be satisfied
2. Distinguish- Compulsory counterclaim sometimes
considered when D does not move to dismiss: A few lower
courts allow the amount of Ds compulsory counterclaim
to establish jurisdiction if
a. Requirements:
i. The suit was originally filed in federal court
ii. Amount satisfies 75k minimum
iii. D does not move to dismiss on the basis of
lack of jurisdiction
b. Removal exception: This approach does not justify
using a counter-claim to satisfy the jurisdictional
amount for removal since it would permit D to
override Ps choice to sue in state court
v. Class Action Fairness Act: The claims of class members are
aggregated and federal court jurisdiction exists if the amount

165

sought for the class exceeds 5 million, even if no claims exceed

75k under 28 USC 1332d6
13)
Exceptions to Exercise of Diversity Jurisdiction: Courts decline to
exercise jurisdiction in some cases
a. Domestic Relations: It prohibits issuance of divorce, alimony or custody
decrees.
i. Exception: It does not allow a federal court to refuse to exercise
diversity jurisdiction over a tort action for damages, even when
the claims are brought by one divorced parent on behalf of
children
b. Probate Proceedings: No jurisdiction over the probate or annulment of
a will or administration of a decedents estate or in disposal of property
that is in custody of state probate court
i. Exception: Court must exercise jurisdiction even though issues
may e involved in litigation before a state probate court
c. Local Actions: Some federal courts treat the rule that actions regarding
title to real property should be litigated at the location of the property
14)
Proposals to Repeal Diversity Statute: Many people try to repeal
the diversity statute since any residue of prejudice against outsiders is
insufficient to justify imposing the burden of deciding diversity cases in
federal courts
a. Complex litigation: There is a sentiment favoring expanding it to cope
with the demands of repeated litigation of related matters
15)
Class Action Fairness Act of 2005: The act expanded federal
courts original jurisdiction over certain class actions based on state law and
included some safeguards for settlements
a. Requirements must be met to have original jurisdiction over class
action under the Act:
i. Minimal diversity: There must be minimal diversity between the
class members and named Ds
1. Minimal diversity requirements
a. Any member of a P class is a citizen of a state
different from any D
b. Any member of a P is a citizen of a foreign country
and any D is a citizen of a US state
c. Or any member of P is a citizen of US while any D is
a citizen of a foreign country
ii. Aggregate claims of over 5 million: The claims of all class
members aggregated must exceed 5 million
iii. Minimum class size: There must be at least 100 members in the
proposed class under 28 USC 1332d5B
b. Excluded actions: Certain class actions are excluded under the act
i. Primary Ds are states or governmental entities: No federal court
jurisdiction if primary Ds are states, state officials or other
government entities against whom the court may be foreclosed
from ordering relief- 28 USC 1332d5A

166

ii. Claims based on securities or corporate governance: No

jurisdiction over a class action that solely involves a claim under
federal securities law or that relates to the internal affairs of a
corporation and is based on the laws of the state of
incorporation- 28 USC 1332d9
c. Decline of jurisdiction: Court may decline jurisdiction over a class
member even if it meets the requirements
i. Mandatory decline: A district court must decline jurisdiction if 28
USC 1332d4
1. Requirements
a. More than 2/3rds of members of the proposed P
class are citizens of the state in which the action
was filed
b. A D from whom significant relief is sought of a
citizen of that state and
c. The principal injuries occurred in the state which
the action was filed
ii. Discretionary decline: A district court may decline jurisdiction if
1. Requirements 28 USC 1332d3
a. More than 1/3rd but less than 2/3rds of the class are
citizens
b. Primary D are also citizens
2. Consideration: Court considers a variety of factors
a. Whether claims involve matters of national interest
b. Whether the claims will be governed by the law of
the state where it was filed
c. If the state has a distinct nexus with the class,
alleged harm, or Ds
d. Provisions for protection of class members: The CAFA also included
provisions designed to protect the interests of class members in
connection with proposed settlements

Supplemental Jurisdiction
1) Supplemental Jurisdiction: Supplemental jurisdiction allows a federal court
to hear claims that could not get into federal court themselves
a. Situation: At this point, the plaintiff filed a claim that invoked a basis
for subject matter jurisdiction but now there may be additional claims
asserted in the case
b. Effect: The decision may be based on state law issues alone.
2) Ancillary Jurisdiction: Ancillary jurisdiction involved assertion of a claim by
a party other than the P that was related to the claim made by the plaintiff.
Allows the court to hear a related claim against a party impleaded by the
original D.

167

a. Compulsory Counter-claims: A counterclaim arising from the same

transaction as Ps claim fell within the ancillary jurisdiction of the court
b. Impleader: There is ancillary jurisdiction over the third party claim
i. Distinguish claim by P against third party D: If P asserted a claim
against the third party D in a diversity case, there had to be an
independent basis for federal jurisdiction over that claim
ii. Contrast- Third party D claim against P: Ancillary jurisdiction is
sufficient for a claim by a third party D against P
1. Compulsory counterclaim by P: If P had a counterclaim
arising out of the same events from which Ds claim
arose, the counterclaim against the third party D would be
within the courts ancillary jurisdiction
a. Exception: This may be changed by the
supplemental jurisdiction statute
c. Cross-claims: There is ancillary jurisdiction over a cross-claim
d. Intervention: When they could intervene of right, there is ancillary
jurisdiction over the participation of the parties
i. Permissive intervention: An independent jurisdictional basis is
required
e. Necessary parties: An independent basis for jurisdiction is required
for necessary parties
3) Pendent Jurisdiction: If P had both federal and non-federal claims against a
non-diverse D arising from the same event, the court has jurisdiction over the
state law claims, which were appended to the federal claim (You need FQ
jurisdiction)
a. Pendent Party Jurisdiction: If P has a claim within original federal
jurisdiction against the defendant and also an additional claim that is
so closely related to the plaintiffs original claim as to be part of the
same overall dispute, the federal court can hear the additional claim
i. Common Nucleus of Operative Fact: The additional claim
can be added on if the claim derived from a common nucleus of
operative fact with the claim that invoked federal subject matter
jurisdiction
1. Same transaction or Occurrence: The common nucleus
test is always satisfied if claims arise from the same
transaction or occurrence
ii. Diversity claim: SCOTUS refused to allow a P to assert a claim
against a non-diverse third party D because allowing this would
enable P to circumvent the complete diversity requirement
iii. Federal question claim: Even where there was exclusive
federal jurisdiction over a federal claim against 1 D, there is no
jurisdiction over a related, non-federal claim against a nondiverse party because a grant of jurisdiction over claims
involving particular parties does not itself confer jurisdiction over
additional claims by or against different parties

168

b. Class Actions: Where a class action was brought under diversity

jurisdiction, each member had to have a sufficient claim unless the
claims were joint
i. Distinguish FQ class action: There is no jurisdictional problem
since the amount in controversy requirement does not apply and
each class member would have a claim within the SMJ
c. Lack of statutory basis: Finley casted doubt to claims against added
parties without express congressional authorization
4) Supplemental Jurisdiction Statute: Congress enacted the supplemental
jurisdiction statute of 28 USC 1367
a. Jurisdictional Power to Limit of Constitution: The statute grants
federal courts that have original jurisdiction over a claim supplemental
jurisdiction over all other claims that form part of the same case or
controversy under Article 3.
i. Common Nucleus Test Under 28 USC 1367a: Supplemental
jurisdiction is granted over all claims asserted in a federal civil
action if they share a common nucleus of operative fact with the
claim that invoked federal subject matter jurisdiction
ii. Standards for supplemental jurisdiction in federal
question cases
1. Three part test
a. Substantial federal claim: The federal claim must
be sufficiently substantial to support federal
question jurisdiction
b. Common nucleus of operative fact: The federal and
non-federal claims must derive from a common
nucleus of operative fact
c. One judicial proceeding: Both claims must be such
that P would ordinarily be expected to try them in
one proceeding
iii. Diversity Cases: The same test may apply to determine the
outer constitutional limits of diversity jurisdiction
1. Minimal diversity: Since only minimal was required, as
long as one D is diverse, there is no constitutional
difficulty, including if there is non-diverse parties
iv. Pendent Party Jurisdiction: Section A of the statute grants
supplemental jurisdiction over claims that involve the joinder or
intervention of additional parties
v. Time of Decision: The time of decision will be resolved on the
pleadings
vi. Contrast to Original Jurisdiction Statutes: Unlike statutes
granting FQ and diversity which was interpreted not to go
beyond the constitutional limit, subsection A does go to the
maximum extent allowed by the Constitution

169

vii. Mandatory Exercises: Federal courts should exercise

supplementary jurisdiction unless a ground for declining exists
under 28 USC 1367c
b. Exception for Diversity Cases Under 28 USC 1367b: When federal
SMJ is founded solely on diversity, supplemental jurisdiction is limited
under 28 USC 1367b
i. Claims by P: No supplemental jurisdiction over claims by Ps
against persons made parties under impleader, necessary party
joinder, permissive party joinder or intervention
ii. Claims by P joined as P under Rule 19 or 24: No
supplemental jurisdiction over claims by persons proposed to be
joined pursuant to Rule 19 or intervene as plaintiffs under Rule
24
1. Distinguish Rule 20 joinder: The supplemental jurisdiction
statute has no provision excluding Ps permissively joined
a. Claims by a completely diverse P when one P has a
claim satisfying the requirement but others with
related claims that do not, come within
supplemental jurisdiction
b. Exception- Incomplete diversity will destroy
jurisdiction to all claims
2. Distinguish- Class Actions: Related claims of class
members may be appended to the jurisdictionally
sufficient claims of P class representatives, even though
the class members claims themselves do not satisfy the
amount in controversy requirement
a. Supplemental jurisdiction can only etend: to belowamount claims of diverse and non-diverse unnamed
class members alike
3. Distinguish- Compulsory Counterclaims by P: Under prior
case law, ancillary jurisdiction is over a compulsory
counterclaim by P against a non-diverse D in a diversity
case
a. Unclear: Whether this rules survives the
supplemental jurisdiction statutes prohibition of
jurisdiction over claims by P against such parties
4. Distinguish- Claims against Ds joined under Rule 20:
Section 1367b excludes supplemental jurisdiction
a. FRCP 42a: If separate suits are filed against each D,
Ps can solve this problem and may seek to
consolidate these separate suits for combined
treatment
c. Discretionary Decline of Jurisdiction Under 28 USC 1367c: The
statute explicitly authorizes courts to decline jurisdiction in certain

170

circumstances that largely implement discretionary factors identified in

Gibbs
i. Grounds to decline: A federal court may decline supplemental
jurisdiction only on the basis of one of the following grounds
1367c
1. Novel or complex issue of state law: If the law to be
applied to a non-federal claim is uncertain, the court may
decline to entertain that claim so that the parties can get
a surer-footed reading of applicable law from the state
court
2. Non-federal claim substantially predominates: If the nonfederal claim is the real body of the case
3. All original jurisdictional claims dismissed: If all claims
over which the federal court had original jurisdiction were
dismissed, the court may dismiss non-federal claims
a. Consideration: Courts should consider the amount
of time invested in the case by the court
4. Extraordinary circumstances: The federal court may also
decline in extraordinary circumstances if there are other
compelling reasons for declining jurisdiction
a. Complication of case: Complication of the case in
federal court would justify refusal to entertain nonfederal claims
b. Distinguish- State law tied to questions of federal
claims: When the state law claim is closely tied to a
question of federal policy, this link argues in favor
of exercise of supplemental jurisdiction
i. Compare preemption defense: Preemption is
usually an affirmative defense and not
ground for exercise of federal question
jurisdiction
ii. Timing of decision: The question of whether to decline remains
open throughout the case
1. Reason to retain: The longer the court waits, the more
effort it puts or invest, may be a reason to retain
jurisdiction
iii. Dismissal of claim: When the court exercises its discretion under
Rule 1367c and declines supplemental jurisdiction, it dismisses
only the supplemental claim but not the original claim that
properly invoked federal SMJ
1. Without prejudice: The court dismisses it without
prejudice so the plaintiff can assert the claim in state
court
d. Tolling of Limitations Under 1367d: The limitations period for any
claim asserted under SJ or any other claim in the same action

171

voluntarily dismissed at the same time or later is tolled while the claim
is pending in federal court and for 30 days after the court dismisses it
i. Application: The tolling limitations only applies if its dismissed
under Section 1367c
ii. Extension: A state statute can extend tolling for a longer time
iii. Tolling provision constitutional: In an action against a county, a
tolling provision that directed that state law claims could be filed
in state court after the limitations period runs is constitutional
iv. Voluntary dismissal of claim within original jurisdiction: If a claim
asserted under supplemental jurisdiction is dismissed, the tolling
provision will also apply to any claim that was properly within
federal jurisdiction that P dismisses along with the supplemental
claim
5) United Mine Workers of America v Gibbs: Under pendent jurisdiction,
federal courts may decide state issues that are closely related to the federal
issues being litigated
a. Rule on Pendent Jurisdiction: When there are both state/federal claims
involved in the same set of facts and the claims are such that P would
ordinarily be expected to try them all in one suit, the federal court has
the power to hear both claims
i. Federal claims: Must have substance sufficient to confer subject
matter jurisdiction on the court
ii. Relationship: The factual relationship between state and federal
claims must be so close that they ought to be litigated at the
same trial
iii. Discretion: Pendent jurisdiction is a doctrine of discretion
b. Factors: Courts should look at
i. Judicial economy
ii. Fairness to litigants
iii. Convenience
c. Limitation: If the issues are so complicated that they are confusing to
the jury, the court should dismiss the state claims
d. Open throughout litigation: The issue of whether pendent jurisdiction
has been properly assumed remains open throughout litigation
e. Dismissal of federal claim before trial: Then the state claim should also
be dismissed
6) Owen Equipment and Erection Company: In a diversity action, the
plaintiff cannot assert a claim against a third party defendant when there is
no independent basis for federal jurisdiction over that claim
a. Rule on Ancillary Jurisdiction: Diversity jurisdiction does not exist
unless each D is a citizen of a different state from each P, even where
the non-diverse D is impleaded through ancillary jurisdiction
b. Present case:
i. Claims: There was no claim based on substantive federal law
ii. Not ancillary dispute: It was a totally new claim with a new
defendant and different facts

172

iii. Rationale: If common nucleus of facts were the only requirement

for ancillary jurisdiction in a diversity case, there would be no
reason P would not have joined her cause of action against D in
her original complaint as ancillary to the claim against the third
party D
c. Courts limitation: Courts have limited jurisdiction and can only hear
cases that Congress authorizes
7) Finley v US (OVERRULED): The Federal Tort Claims Act does not permit the
assertion of pendent party jurisdiction over additional parties
a. Prior Law on Pendent Party Jurisdiction:
i. Holding: The joining of non-federal claims against parties who
are not named in any claim to which there is independent
original federal jurisdiction is not allowed
1. Relationship between added claims and original
complaint: Based on mere factual similarity
ii. Act interpretation: The act does not say civil actions that include
requested relief against US or civil actions in which there is a
claim against the US but only on civil actions on claims against
the US
b. Modern Law: Congress enacted a new supplemental jurisdiction statute
that allows for pendent party jurisdiction unless a federal statute
precludes it
c. Difference from Gibbs: This case P has substantially federal claims
against first D and state claims against 2nd D but Gibbs only held that
state claims could be joined against the first D.
8) 28 USC 1367
a. Statute overrules Finley: The statute now allows federal courts to
entertain additional claims against existing parties as well as claims
against additional parties to the action where no independent basis of
SMJ exists over those claims
b. (a) Except as provided in subsections (b) and (c) or as
expressly provided otherwise by Federal statute, in any civil
action of which the district courts have original jurisdiction,
the district courts shall 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 III of the United States
Constitution. Such supplemental jurisdiction shall include
claims that involve the joinder or intervention of additional
parties.
c. (b) In any civil action of which the district courts have original
jurisdiction founded solely on section 1332 of this title, the
district courts shall not have supplemental jurisdiction under
subsection (a) over claims by plaintiffs against persons made
parties under Rule 14, 19, 20, or 24 of the Federal Rules of

173

d.

e.

f.

g.

h.

Civil Procedure, or over claims by persons proposed to be

joined as plaintiffs under Rule 19 of such rules, or seeking to
intervene as plaintiffs under Rule 24 of such rules, when
exercising supplemental jurisdiction over such claims would be
inconsistent with the jurisdictional requirements of section
1332.
(c) The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if
i. (1) the claim raises a novel or complex issue of State law,
ii. (2) the claim substantially predominates over the claim
or claims over which the district court has original
jurisdiction,
iii. (3) the district court has dismissed all claims over which
it has original jurisdiction, or
iv. (4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
(d) The period of limitations for any claim asserted under
subsection (a), and for any other claim in the same action that
is voluntarily dismissed at the same time as or after the
dismissal of the claim under subsection (a), shall be tolled
while the claim is pending and for a period of 30 days after it is
dismissed unless State law provides for a longer tolling period.
(e) As used in this section, the term State includes the
District of Columbia, the Commonwealth of Puerto Rico, and
any territory or possession of the United States.
(a) Where the federal court has original jurisdiction (has
subject matter jurisdiction, either federal question or
diversity), a court 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 III of the United States
Constitution. Such supplemental jurisdiction shall include
claims that involve the joinder or intervention of additional
parties.
i. But when were talking about supplemental jurisdiction, we are
only talking about claims that the district court doesnt have
subject matter jurisdiction over it.
ii. This applies to all the claims in the case
(b) federal courts can exercise their 1367(a) power except for
when the basis for original jurisdiction is solely based on
diversity (usc 1332), then it cant be applied to claims brought
by the P against non-diverse Ds.
i. Supplemental jurisdiction will not extend to certain claims by P
against persons made parties under impleader, necessary

174

parties, permissive parties or intervention, or persons claimed to

be proposed to be joined as Ps under Rule 19
i. (c) The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if
i. (1) the claim raises a novel or complex issue of State law,
ii. (2) the claim substantially predominates over the claim
or claims over which the district court has original
jurisdiction,
iii. (3) the district court has dismissed all claims over which
it has original jurisdiction, or
iv. (4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
j. (d) The period of limitations for any claim asserted under
subsection (a), and for any other claim in the same action that
is voluntarily dismissed at the same time as or after the
dismissal of the claim under subsection (a), shall be tolled
while the claim is pending and for a period of 30 days after it is
dismissed unless State law provides for a longer tolling period.
k. (e) As used in this section, the term State includes the
District of Columbia, the Commonwealth of Puerto Rico, and
any territory or possession of the United States.
9) Common situation: Ancillary jurisdiction usually involved by D or by
another person whos rights will be irretrievable unless they bring their claims
in the action or else it will be forever barred
a. Courts willingness: Courts are more willing to grant ancillary
jurisdiction for Ds compared to Ps because Ps choose the court and Ds
dont
10)
Ancillary Jurisdiction Analysis
a. If the federal court has constitutional power under Article 3 to hear the
claim
i. If no: Nothing else matters
b. Gibbs analysis: Is it a related claim and does it arise from the same
common nucleus of facts?
i. Are the facts common enough?
11)
Considerations for Federal v State Court
a. Favorable procedural rules
b. Quality of judges
c. Sizes of judgments
d. History of outcomes in either court
e. Lawyers experience
f. Potential statutory limitations
g. Jury instructions in either court

Removal

175

1) Removal: Removal is a mechanism to transfer a case at the defendants

behest from a state trial court to a federal trial court
2) Parties that Can Remove: Only original defendants can remove a case
a. Third party Defendants: Only original Ds can remove a case, not
third party Ds
b. Multiple defendants Under Section 1446b2A: If there are multiple
defendants, all defendants, who have been properly joined and served,
must agree to remove a case and if one refuses, the case cannot be
removed
i. Served Defendants: Only the defendants named in the
complaint and served with process must join in removal
ii. Separate and independent claim ground: Only D against whom
this claim is asserted need seek removal
iii. Exception CAFA: Class actions governed by CAFA may be
removed by a single D without the consent of other Ds
3) Procedure for removal: D seeking removal must file a notice setting forth
the facts supporting removal in the federal district court and division within
which the action is pending
a. Copy of notice: should be sent to the other parties and to the state
court
i. Written Notice Requirement Under 1446d: After filing notice of
removal in federal court, the defendant must promptly give
written notice of the removal to all adverse parties and file a
copy of the notice in state court
1. Filing: The filing in state court effects removal and the
state court shall proceed no further unless and until the
case is remanded
b. Notice Under 1446b1: The notice of removal must be filed in federal
court within 30 days after receipt by the defendant, through service or
otherwise of the complaint in the case she wishes to remove
i. Last-Served Approach Under 1446b2: The 30 days begin to run
when the last defendant is served with process
c. No Court Permission Required: The defendant does not need
permission to remove a case and she starts this process by filing the
notice of removal in federal court
d. Waiving the Right to Remove: The defendant can waive the right to
remove by taking some action in state court that she is not required to
take, like asserting a permissive counterclaim
e. Personal Jurisdiction: By removing a case to federal court, the
defendant does not waive the defense of lack of personal jurisdiction
f. State Court Lack of SMJ: The federal court has jurisdiction over an
otherwise properly removed action even if the state court lacked
jurisdiction but it only applies to cases in section 28 USC 1441f
i. Other cases: The removal of an exclusive federal jurisdiction
case improperly filed in state court is not allowed and the case

176

must be remanded to state court for dismissal and refilling in

federal court
4) Grounds for removal Under 1441a: A defendant can remove a case if it is
one of which the district courts of the US have original jurisdiction and if the
federal district embraces the place in which the action is pending
a. Embraces: The word embraces means geographically the state court
in which the case is pending
b. Lack of subject matter jurisdiction: If the case does not satisfy a
basis of federal subject matter jurisdiction, the federal court must
remand to state court
i. Difference in operation: If the case in which jurisdiction was
lacking was filed in federal court originally, the case is dismissed
but if the case was filed originally in state court and removed to
federal court, the case is not dismissed but remanded
c. Federal question: If Ps state court complaint raises a federal
question, D can remove
i. Federal defenses not considered: The fact D raised a federal
defense to Ps state law claim is not sufficient
ii. Defendants burden of proof: The defendant has the burden of
establishing SMJ and must do so on the basis of the plaintiffs
complaint, not through answer or counterclaim
1. Federal counterclaim not considered: The fact D has
interposed a counterclaim asserted a federal claim does
not provide a basis for removal
iii. Plaintiff omits a federal claim: If P chooses not to assert a
possible federal claim, D may not remove the case by citing the
unasserted claim
1. Amendment to assert a federal claim: If P amends the
complaint to assert a federal claim, D can remove the
case
2. Exception- Complete preemption: If federal law
completely preempts state law on the matter and
converts Ps claim into one of federal law, that satisfies
the well-pleaded complaint requirement and makes the
case removable
iv. Effect of Supplemental Jurisdiction Statute: Under SJ statute, any
case in which a federal claim is asserted in state court should be
removable even though it includes D against whom only state
law claims are asserted, as long as the claims against these Ds
form part of the same federal constitutional case
v. Effect of 11th Amendment Immunity: If a state is D and joins in
removing a FQ case that includes claims barred by the 11 th, the
court may not hear the barred claims but has jurisdiction over
the remaining claims
d. Diversity of citizenship: If P could have filed the action in federal
court using diversity, D can remove the case to federal court only if the
177

requirements for diversity are met both at the time the case was filed
in state court and at the time the defendant removes the case
i. Complete Diversity:
1. Local Defendant Under 1441b2: Removal not permitted if
any D is a citizen of the forum state in which the action is
brought
a. Exception- Class Action: In a class action claims
based on state law that could have been filed
originally in federal court pursuant to the act, D
who is a citizen of the state in which the action is
filed may remove to federal court
2. Fictitious D: Fictitious Ds are disregarded in determining
whether there is complete diversity for removal
3. Fraudulent joinder Under 1447e: If P joins D who is a
resident to destroy diversity and there really is no basis
for the claim against the non-diverse party, the court may
deny joinder or permit joinder and remand to the state
court
ii. Jurisdictional amount: Jurisdictional amount requirement
applies to removal in diversity cases
1. General Rule Under 1446c2: The plaintiffs dollar demand
in her complaint is deemed to be the amount in
controversy
2. Exceptions: There are exceptions to the general rule if the
plaintiff sues for
a. Nonmonetary relief
b. Monetary relief without stating an amount
c. Monetary relief of 75k or less in a state in which the
claim does not cap what she can recover
3. Hearing Under 1446c2B: When the defendant removes
after asserting that the amount is satisfied, the federal
court will hold a hearing and keep the case only if it finds
by a preponderance of the evidence, the amount exceeds
75k
iii. Time Limit Under 1446c1: A diversity action cannot be
removed more than 1 year after the commencement of an
action. This provision only applies in case that were not
removable when filed but are removable later
1. Exception: A diversity case can be removed more than 1
year after commencement if the district court finds that
the plaintiff acted in bad faith to prevent the defendant
from removing the action
a. Bad faith Under 1446c3B: The plaintiffs deliberate
failure to disclose the actual amount in controversy
is bad faith

178

e. Separate and Independent Federal Claim Under 1441c: If the

state court case asserts a claim arising under federal law, to which the
plaintiff joins a state law claim that does not invoke diversity nor
supplemental jurisdiction, the entire case may be removed to federal
court but the federal court must then sever the state law claims and
remand them to state court
i. Unanimity: Unanimity rule is not required since removal can be
effected b the defendant against whom the federal question is
asserted
f. Special removal statutes: In certain cases, special removal statutes
apply
i. Examples:
1. Civil/Criminal Rights: when a state court D in a civil or
criminal case cannot adequately protect her federal civil
rights regarding racial equality in state court, it can be
removed to federal court
2. Federal officers sued for acts performed under color of
office
3. Multiparty, Multiforum Trial Jurisdiction Act: May be
removed without regard to whether D is a citizen of the
state where the action is brought and different timing
requirements may apply
ii. Removal forbidden in employment injury cases: FELA or workers
compensation laws are not removable
1. Distinguish- Fair Labor Standards Act: Removable is
allowed unless the statute expressly forbids removal
iii. Removal under CAFA: Class actions based on state law that
could have been filed originally in federal court may be removed
to federal court
5) Remand Under 1447c: If removal is improper for some reason other than
lack of subject matter jurisdiction, the plaintiff must move to remand within
30 days after the removal
a. Improper Removal: If there was improper removal, federal court should
remand it to state court unless final judgment was entered
i. Jurisdictional defect before final judgment: If there was a
jurisdictional defect at the time of removal, the case was not
remanded and defect is cured before final judgment, the defect
should be disregarded on appellate review
ii. Time limit for motion to remand on ground other than lack of
SMJ: The motion must be made within 30 days after the notice of
removal is filed
iii. Lack of subject matter jurisdiction: If there is no federal subject
matter jurisdiction, there is no time limit for the plaintiffs
moving to remand the case to state court

179

b. Supplemental claims after dismissal of federal claims: When the court

would otherwise dismiss the supplemental claims after disposing of
federal claims, it may instead remand them to state court
c. Other grounds for remand: Remand is not allowed where the case was
properly removed
i. 28 USC 1447e: If P seeks to add additional D whose addition
would destroy SMJ, the court may permit joinder and remand
d. Appellate review: An order remanding a case to state court on grounds
of lack of SMJ or defect in removal is not reviewable on appeal 28
USC 1446D
i. Review via mandamus: Was allowed when a district court openly
remanded on a ground not authorized by statute
ii. Collateral order: Upheld remand order based on abstention
principles under the collateral order doctrine
1. Distinguish remand motion erroneously denied: P does not
need to obtain interlocutory review to preserve the error
for review after final judgment, although denial of the
motion to remand will not justify reversal if the
jurisdictional defect is cured before final judgment
2. Appellate Review under CAFA: The court of appeals has
discretion to accept an appeal provided that the
application for review is made within 7 days of entry of
the order
e. Attorneys fees on remand: The court has discretion to award
attorneys fees to the party seeking remand
6) No Reverse Removal: There is presently no method by which D can remove
a case originally filed in federal court to state court
7) Analysis
a. First Question: Would the federal court have original jurisdiction in this
matter (If P could have brought the claim due to diversity or FQ?
i. It would be removed to the district court embracing the place
where it was pending
ii. All states have multiple federal courts
iii. We need to know what town she filed her claimed in because
where she filed it determines which federal court it should be
removed to
b. When Original jurisdiction comes from the federal question, it can be
removed
i. Diversity: It can only be removed if none of the Ds are citizens of
the state where it was filed

Choice of Law Erie Doctrine

1) Erie Doctrine Issue: The federal courts are required to apply state rather
than federal law

180

2) Rules of Decision Act: The starting point- The laws of the several states,
except where the Constitution, treaties or Acts of Congress otherwise require
or provide, shall be regarded as the rules of decision in civil actions in the
courts of the US, in cases where they apply
3) Erie Railroad Co v Tompkins: P, Pennsylvania citizen, sustained personal
injuries when he was struck by an Erie Railroad Company, incorporated in NY,
freight train in Pennsylvania when he was walking on a footpath next to the
tracks. P brought the suit in federal district court in NY. D argued Pennsylvania
rule should apply.
a. Rule: Although the 1789 Rules of Decisions Act left federal courts
unfettered to apply their own rules of procedure in common law
actions brought in federal court, state law governs substantive issues.
State law includes not only statutory law but case law as well
b. Conflict of Law:
i. Plaintiff seeks Federal Law: Since no state statute addressed the
issue, federal common law should apply which regards P a
licensee.
ii. Defendant seeks state law: Persons using pathways adjacent to
railways were trespassers
c. Overruling of Swift: Erie held that in the absence of an Act of
Congress providing governing law, a federal court should follow
applicable state common law principles rather than developing and
applying its own general common law.
i. Reasoning of Erie: There are three distinct rationales
1. Statutory interpretation: The language of the rules did
not intend to exclude all state general common law but
the term laws of the several states includes state
common law, general and local and positive state law
2. Lack of uniformity and resulting discrimination: The
persistence of differing views on common law questions
between state and federal created a possibility for
discrimination among litigants depending on the forum in
which the case was tried
a. Equal protection red herring: The Swift doctrine
made equal protection impossible- The equal
protection term here refers to non-constitutional
problems of non-uniformity in administration of
state law and unfairly disparate treatment of
litigants
b. Promotion of forum shopping: Swift introduced
grave discrimination by non-citizens against
citizens through the ability of an out-of-state-party
to control the choice of forum in diversity litigation
i. An out of state party: can effect removal to
federal court if sued in state court

181

ii. Local citizens: can move out of state and

bring suit in federal courts
iii. Corporations: Can reincorporate in another
sate
3. Unconstitutionality of Swift:
a. Holding: The constitutional portion of Erie is
holding, not dictum
b. Basis of unconstitutionality: There is an absence of
any clause in the Constitution to confer upon either
Congress or the federal courts the power to declare
substantive rules of common law applicable in a
state
i. Constitution: Preserves autonomy of the
states and supplanting their law with federal
law is permissibly only by powers granted by
the Constitution.
ii. Federal Courts Power: Federal courts dont
have power to create federal common law
since its not granted under the Constitution.
There is no federal common law.
iii. 10th amendment alone not a basis of Erie:
Even without the 10th amendment, Swift is
unconstitutional since its interpretation
presumes a general law making power not
granted to the federal government
iv. Commerce power a possible basis: Through
Congresss commerce power, Congress could
have provided for a substantive tort law
governing accidents involving interstate
commerce or could have authorized federal
courts to develop common law in the area
but Congress did not
4. Extra Notes:
a. Brandeiss three concerns
i. Statutory interpretation and history: When
Congress passed the act, they did not mean
to limit the definition of laws only to the
states legislature
ii. Uniformity problem: state courts werent
following what the federal courts set up as
general law. The plan was if the federal
courts made a general law then the state
courts will follow their decisions

182

1. Possibility of injustice: more potential

for injustice if federal courts can make
up laws
2. No consistency and lack of
predictability: same claim can have
different outcomes
iii. Constitutionality of practice concern: Might
have been talking about the 10th amendment
and how what isnt assigned to the federal
government goes to the states
b. Different Views of Law
i. Swift: Idealist view of transcendental law and
courts just find the law and are reflections of
what the law is and not the law itself. State
court decisions are just evidence of what law
is
ii. Erie: Legal realist view- Common law is not
common because if we think about it, well
get it, its law because its enfored by the
government
d. Erie as a revolution on federal court practice: Progression to
i. More application of state substantive common law rather than
general common law
ii. And towards a uniform federal procedural law instead of diverse
local practice
e. Main Guideline: In matters in the federal courts arising under state
law, the governing laws are
i. State substantive law and
ii. Federal procedural law
f. Rules of Enabling Act: Congress delegated to SCOTUS the authority
to prescribe general rules of practice and procedure for federal courts
4) Guaranty Trust Co v York: D breached a fiduciary trust claim and P brings
a class action. D moved for summary judgment on the grounds the state
statute of limitations run.
a. Outcome Determination Test: In all cases where a federal court is
exercising diversity jurisdiction, the outcome of the case should be
substantially the same, so far as legal rules determine outcome, as it
would be if tried in state court (if the ultimate result would be different
depending on what law you would apply.
i. Main determination of Erie: Whether the state law merely
concerns the manner and the means by which a right to recover
is enforced or whether it would substantially affect the result
b. Conflict of Laws:
i. Plaintiffs federal law: Plaintiff can assert the equitable argument
of laches in response to the defendants statute of limitations
argument

183

ii. Defendants state law: Statute of limitations passed

c. Issue: Whether a state statute of limitations or the more flexible
federal decisional rule of laches should determine the timeliness of an
equitable state law claim filed in federal court
i. Specific holding: The NY statute of limitations is controlling
because they have strong substantive overtones in that they
provide for repose (when the time to sue passed, people can
stop worrying about being sued)
ii. Outcome determination test: The outcome of the litigation in
federal court should be substantially the same so far as the legal
rules determine the outcome of a litigation, as it would be if
tried in state court
1. Dual concerns
a. It was contrasted with whether a state law concerns
merely manner or means by which a right to
recover is enforced
b. Purpose is to avoid providing litigants with a second
conflicting body of law
iii. Rationale:
1. Federal courts position: A federal court sitting in diversity
is acting as a state court and a federal court cant alter
the rights guaranteed by that states law
2. Distinction of substantive and procedural: The court
abandons the distinction between substantive and
procedural since theyre always fact specific
considerations
3. Erie effect: Erie overruled both Swifts regard to
substantive law and also the judicial process of the
federal courts disregarding state law when it leads to
different results
5) Byrd v Blue Ridge: P, a NC resident, was injured in South Carolina during
his course as a subcontractor for D, a SC corporation. Under SC law, if D was
Ps statutory employer, Ps award would be limited to workmens
compensation. D raised an affirmative defense that it was Ps statutory
employer. Under South Carolina law, the issue of immunity was to be tried as
a judge. Under the Constitution, P deserves a trial by jury.
a. Rule: The Erie doctrine requires that federal courts in diversity cases
respect the definitions of rights and obligations created by state courts
but state laws cant alter the essential characteristics and functions of
the federal courts and the jury function is such an essential function
(provided for in the 7th amendment) . The Erie Doctrine does not
mandate that state law be applied in determinations of rights
regardless of conflict with the federal law and the Constitution.
b. Interest Balancing Approach: The test must also be balanced along
with federal and state interests in the rules that could be applied

184

i. Balancing Approach: Byrd discusses three main types of

factors
1. Relation between state rule in question and
underlying state right: Whether the state intended the
rule to be bound up with the underlying state law rights
and obligations being enforced
a. Aim: To determine whether the state procedural
practice was an integral part of the state
substantive right or if the state system followed it
for some independent reason that might relate
more to state court internal housekeeping and
therefore have less call to be followed in federal
court
i. If yes: The federal court should follow the
rule
ii. If no: The federal court should still consider
the underlying state interest in achieving
uniformity between claims heard in state
court or diversity claims heard in federal
court.
1. State interest balance: The state
interest is balanced with any federal
policies that arise from the concept
that the federal court is independent
to the states and is bound by its own
rules and not by the rules of the
several states
2. Countervailing interests of the federal judicial
system: The strength of the federal policy involved and
the danger that following the state rule would disrupt
policy
a. Narrow range: They dont pertain to the substance
of the law but the federal courts interest in the
smooth functioning, uniformity and coherence of
the decisional principles
3. Likelihood on the effect on the outcome
ii. Uncertainty to Outcome: If there is no certainty that a
different result would be achieved, its appropriate to apply the
federal rule
1. Choice of state law: If it does not involve any essential
relationship or determination of rights created by state
law and if it was merely a determination of the form and
mode of enforcement, federal law shall apply

185

a. Erie can still reach form and mode determinations:

If there are no affirmative countervailing
considerations
b. Form and Mode or Remedy (Trial by jury or judge):
These questions are not necessarily the province of
the states where essential federal rights are
involved.
c. Issue: Whether federal or state law should govern in a situation
involving a conflict with federal law and the Constitution
i. Conflict of Laws:
1. Plaintiff: Plaintiff argues that the 7th amendment trial by
jury applies
2. Defendant: Defendant argues that state law should apply
and the case should be tried by a judge
ii. Rationale:
1. Determination of immunity: The determination of
immunity was based on form and mode and it did not
involve any essential relationship of rights created by
state law.
2. Blind adherence to the state rules form and mode: Would
violate the spirit of the 7th amendment
6) Hanna v Plumer: P, an Ohio resident, was involved in a car accident in SC
with Osgood, a Massachusetts resident. P sued Osgoods executor and served
process by leaving summons with his wife under Rule 4d1. State rule states
service upon an executor must be handed personally within 1 year.
a. Conflict with FRCP: The Erie doctrine mandates that federal courts
are to apply state substantive law and federal procedural law but
where matters fall roughly between the two and are rationally capable
of classification as either, the Constitution grants federal courts the
system to regulate their pleading and practice under the Necessary
and Proper Clause
i. Rule on Point: If there is a federal rule on point to the situation,
the federal rule is controlling.
b. Specific Holding: FRCP 4 allowing substituted service of process on
Ds spouse at their home, rather than personal service required by the
state law, was valid and controlling even though the substituted
service would not have sufficed had the same state law action been
brought in state court
i. Conflict
1. Plaintiff: Under Rule 4d1, service can be made upon the
executors wife personally
2. Defendant: Under state law, service can only be made
personally
ii. Two parts of the Opinion:

186

1. Outcome Determination+: The outcome determination

test is to be applied in modified form in light of the
policies underlying Erie.
a. Twin Aims of Erie
i. Discouragement of forum shopping
1. Forum shopping: The concern should
not be treated in isolation but in
tandem with the second aim
ii. Avoidance of inequitable administration of
laws
b. Application: If the test applies, FRCP would govern
because the different rules in federal and state
court regarding service would neither encourage
forum shopping nor cause unfair discrimination
c. Focus of determination: The outcome
determination test should focus on the outset of the
case making the question whether the difference
between applying the laws would lead the plaintiff
to prefer a federal forum
i. If plaintiff would prefer a federal forum: The
federal court applies state law
ii. If not: The federal court applies federal law
2. Holding with respect to validity of FRCP
a. The Byrd approach does not apply: Because
Congress provided a different standard in the Rules
Enabling Act, under which the Federal Rules are
promulgated
i. Rules Enabling Act: It gives SCOTUS the
power to adopt federal rules regarding
practice, procedure and evidence in the
federal court as long as the rules dont
abridge, enlarge or modify any substantive
right
1. Federal rules are to be applied: unless
they violate the Constitution or the
terms of the Enabling Act themselves
b. Constitutional Restrictions: The power to
regulate procedure in the federal courts have been
granted to Congress under Article 3, Section 1 by
the Necessary and Proper Clause and Congress
delegated part of the power to SCOTUS under the
Rules Enabling Act
i. Only constitutional restriction: That the rules
be arguably procedural
1. Arguably procedural: the power to
make procedural rules is broad enough
187

to include matters which through

falling within the uncertain area
between substance and procedure, are
rationally capable of classification as
either
c. Enabling Act Limitations
i. Practice and procedure requirement: If it
really regulates procedure the judicial
process for enforcing rights and duties
recognized by substantive law and for justly
administering remedy and redress for
disregard or infraction of them
ii. Substantive rights limitation: This
limitation is not addressed to merely
incidental effects on the litigants rights
iii. Strong presumption of validity: When
there is a conflict with state and federal,
there is a very strong presumption in favor of
the validity of the federal rule
1. Rule is to be applied: unless the Rules
Advisory Committee, Supreme Court
and Congress erred in their initial
judgment that the rule did not
transgress the enabling act or the
Constitution
3. Harlans Concurrence: Court extended the rule too far
a. Primary private activity: Harlan emphasized state
power over primary private activity
c. Modern Approach under Erie and Hanna:
i. Analysis by Henderson
1. First: Does the federal rule that is perceived to be in
conflict with state law that governs the issue
a. If no: Then there is no conflict/relevant state rule
and state rule governs
2. Two: If yes, is there a direct conflict
a. If no: Read that the federal and state rules co-exist
3. Three: If direct conflict exists, one should determine the
source of the arguably applicable federal rule of law (or if
the federal rule exceeds the power of the federal congress
on the Courts)
a. Sources of Exceeding Power: Constitution,
Congresss Rule Enabling Act, FRCP, FRAP, FREP or
decisional rule developed by federal courts and not
resting on interpretation
b. The source: Determines the test for its validity and
governing force
188

d. Conflict determination stage: Federal and state rules of law might

apply in a situation and not conflict
i. Examples:
1. Only one system may purport to have an applicable rule
at all or the two rules
2. The two rules may address different points and may both
be applied
3. Rules may agree and call for the same result
ii. No Conflict: If no conflict, Hanna rule is not necessary
1. But if there is an inequitable administration of the laws:
The state rule is preferred
iii. FRCP 3- No Direct Conflict: FRCP 3 does not need to be read
as speaking to when a state statute of limitations is tolled on a
state cause of action thus if a state law provides action is not
tolled until process is served, the state rule applies in state law
actions in federal court, rendering Hanna inapplicable
iv. Uncertainty about construction to avoid conflict: Federal
Rules should be given that plain meaning and if that reading
leads to a direct collision with state law, Hanna applies
1. Not narrowly construed: FRCP should not be narrowly
construed to avoid conflict with state law
a. FRCP interpretation: FRCP should be interpreted
with sensitivity to important state interests and
regulatory policies, which may permit a finding of
no direct conflict between state and federal laws
b. Limiting constructions of Federal Rules: Is allowed
to minimize or avoid problems with the Rules
Enabling Acts substantive rights limitation
e. Conflict Resolution Stage: It is essential first to determine the
source of the potentially applicable federal rule of law. The answer
provides the approach for determining whether the rule is valid
i. If the rule is valid: Under the Supremacy Clause, it prevails
over state law
ii. Federal Constitution: Since the Constitution is paramount law,
if it speaks to a situation before a court, it governs, without
regard to any contrary state law or practice
iii. Acts of Congress: Because of Congresss broad constitutional
power over federal courts, if Congress passes a statute
governing federal court procedure, that statute is valid and
prevails over any contrary state law if it is arguably procedural
1. Inquiry: One should look only to the procedural nature of
the federal statute in determining whether it is valid and
governing; the substantive nature of any contrary state
rule would be relevant and there is no place for Byrds
balancing since Congress already done the balancing

189

iv. Federal Rules: A federal rule promulgated pursuant to the

Rules Enabling Act is judged by the standards of the Act. The
Rule applies unless it appears that relevant Advisory Committee,
SCOTUS, Congress erred in their initial judgment that the Rule
did not transgress the Rules Enabling Act or the Constitution
1. Rule Enabling Acts substantive right limitation:
Whether the court would ever strike down a federal rule
for violating the Enabling Act depends primarily on
whether it would be willing to give significant independent
force to the portion of the Enabling Act that requires Rules
not abridge, enlarge or modify any substantive right
a. Incidental effects: Incidental effects that leave
untouched the content of state substantive law,
while providing a somewhat different manner or
means to enforce it is disregarded
b. Possibility of Conflict with Substantive Right: Court
has never entertained the possibility that a
generally valid Federal Rule may impermissibly
conflict with a substantive state rights but the court
was willing to adopt limiting constructions of FRCP
to minimize or avoid problems with the Rules
Enabling Acts substantive rights limitation
v. Judge-made procedural rules: If potentially applicable federal
rule is purely decisional, the Erie test in Hanna governs
1. Internal housekeeping matters: Twin aims approach
may also apply if state courts have a rule governing
purely internal housekeeping matters and federal courts
have nothing that amounts to a rule but do have a
practice differing from that followed by the court
2. Caution: Court shown a willingness to consider possible
outcome variation and forum choice influence in
interpreting a FRCP thus making the twin-aims approach
relevant in at least some cases besides those involving
decisional federal procedural rules or non-rule practice
3. Sufficiency of evidence: In state law cases in federal
courts, lower federal courts are divided whether to apply
state or judge made federal standards to the issue of
whether evidence is sufficient to go to the jury- Trend is
towards the federal standard
a. Standard for reviewing jury awards: When a federal
trial judge considers a new trial motion based on
alleged excessiveness of a jurys award in a state
law case, the state law supplies the governing
standard since it reflects state policy on how much
of a check to place on excessive damages
190

4. Infrequency of similar problems

a. NASCO case: Conflict involved inherent power of
federal courts to impose sanctions for bad faith
conduct in litigation before the courts even in state
law cases where the state courts would not have
similar sanctioning power
i. Court upheld rule: No forum shopping
incentives or inequity
5. Limited survival of Byrd Approach: The survival of
Byrds balancing or accommodation of state and federal
interests appears to be limited to a subpart of this
category of cases involving judge-made federal
procedural law when an as of yet not clearly defined
essential characteristic of the federal court system is
involved
a. Balancing of accommodation is not necessary in
positive federal law: because Authoritative law
makers already did the balancing
b. The purposive twin-aims modified approach should
be followed: unless an essential characteristic of
the federal court system is involved
7) Which States Law Applies? Federal courts must often decide which
states law to govern
a. General Rule: In diversity cases, as to matters for which the federal
court is required to follow state law, it will apply the law of the state in
which it sits. This law includes the states choice of law rules
i. Thus: If the states choice of law rules require application of
another states law, the federal court is to do the same
b. Statutory Interpleader extension was applied in the past
c. Exceptions: Federal legislation may provide a federal choice of law
rule
8) Determining Applicable State Law: Erie referred to the law of a state as
declared by the states highest court but there may be problems if there is no
definitive rule
a. General Rule Proper Regard: Proper regard must be given to state
court precedents. In some cases, a federal court will not be bound by
the ruling of a state intermediate appellate court on a point of state
law, and a fortiori not by a state trial court decision but courts
opinions are relevant data for ascertaining state law
b. Implementing Eries Aims: Determination of unclear state law
seems best approach with Eries twin aims. Many lower courts look to
all relevant sources, giving due regard to the varying weights of
different authorities within the state system, in an attempt to discern
how the state supreme court will decide.

191

c. No deference to local federal judges: Federal appellate courts are

not to defer to the interpretation of state law by federal trial judges but
must review district courts state law determinations de novo
d. State certification laws: Many states authorize their highest courts
to answer questions of state law certified by federal courts before
which cases are pending. Where this procedure is unavailable, a
federal court may seek an authoritative answer to uncertain questions
about state law rather than speculating on them
9) Federal Common Law: Erie stated there is no federal general common law
a. Hinderlinder rule: Court held that federal common law governed on the
specific issue of apportionment of waters in an interstate stream
b. Resolution to contradiction: The federal courts have authority to create
common law in particular areas of federal authority or interests
c. Examples of Federal Common Law Areas
i. Borrowed State Law: If federal statutes are silent to particular
issues so federal courts can borrow law of the relevant state so
long as it doesnt undermine the purposes of the underlying
federal law
ii. Authorization by Congress
iii. Sufficient Federal Interest
iv. Interstate Disputes
v. US Foreign Relations
10)
Walker v Armco Steel Corp: P, from Oklahoma, was injured while
hammering a nail that D, a foreign corporation manufactured. P sued in
federal district court of Oklahoma. D motioned to dismiss since it was barred
by Oklahoma statute of limitations.
a. Rule: In Diversity actions, FRCP 3 (which states that a civil action is
commenced by filing a complaint with the court) governs the date from
which various timing requirements begin to run but does not affect
state statute of limitations, thus state law is followed in determining
when an action is commenced for the purpose of tolling a state statute
of limitations
i. Direct Collision: In order for Federal Rule to control, it must be
broad enough to cover the issue but if not, Erie requires the
enforcement of state law
ii. Avoidance of Conflict: If the court can avoid a conflict
between the state law and federal rule, it will try to interpret
both rules consistently
iii. Federal Custom: If a conflict involves federal custom and
practice and the state rule, it is not the same as a conflict
between a state rule and federal rule because custom and
practice lacks the creation process
iv. Interpretation of Federal Statute: Only when a collision with
state law arises from the plain meaning of the statute does the
Hanna analysis come into play
b. Conflict of Law

192

i. Plaintiff: Plaintiff argues FRCP 3 governs the time that an action

is commenced, which is the time the complaint was filed
ii. Defendant: The states statute of limitations applies and action
is not commenced until the defendant is served.
c. Rationale:
i. Federal statute: No indication that the rule was intended to toll a
state statute of limitations or displace it
ii. State statute: The state statute is a statement of a substantive
decision by the state that actual service and notice are integral
policies served by SOL
d. New Test of Direct Collision
i. First step: Instead of looking at conflict, see if the federal rule
applies
1. If yes, look at the other parts of the Hanna analysis
ii. Hanna Analysis: Only when the collision with state law arises
with plain meaning of the FRCP, does Hanna analysis come into
play, and the courts must find whether the rule is within the
scope of the Rules Enabling Act and is constitutional
11)
Gasperini v Center for Humanities: P, a journalist, loaned 300
slides to D. D lost the slides and the jury applied the industry standard and
granted P 450k. D moved for a new trial on the grounds the award was
excessive.
a. Situation: It invoked Byrd when the possibly applicable federal rule of
law was purely decisional and might involve an essential characteristic
of the federal court system (aspect of the relationship among jury, trial
and appellate)
b. Conflict of Law:
i. Plaintiff: The plaintiff argued that the federal courts shocks the
conscience standard should apply (higher standard).
ii. Defendant: The defendant argued that the NY state laws
deviates materially standard should apply
c. Limited Byrd Test: A federal trial court can apply state law governing
the excessiveness or inadequacy of compensation awards without
running afoul of the 7th amendments prohibition against reexamination of a fact tried by jury so long as the state standard is
applied by the federal trial court judge and appellate control of the trial
court ruling is limited for abuse of discretion
d. Rule: State law should govern the way a federal judge sitting in
diversity determines whether an award for damages is excessive and
should be subject to remittur
e. Rationale:
i. Adopting different standards for appellate review between
state/federal: Forum shopping is enhanced
ii. It is meant to avoid inequitable administration of laws
f. Extra Notes:
i. Debate between Gasperini and Center

193

1. Counsel for Gasperini: State the rule is procedural and the

standard of review is in direct conflict with the 7 th
amendment because the common law requires a shocks
the conscience standard thats more demanding than a
material deviation standard
2. Center Counsel: The Rules Enabling Act argues that FRCP
cannot modify any state substantive rights and if federal
court failed to follow state law, different outcomes would
result and lead to forum shopping
ii. Damages Cap: As long as it only applies to the substantive right
of how much can be awarded, it is not procedural
iii. State law is applied: If there is either forum shopping danger or
non-uniform decisions
1. Forum shopping analysis: Fact specific to litigants, not
future litigants
iv. Conflicts: Courts will avoid finding a conflict if it doesnt have to.
If there was, the court would have been looking to see if the
federal rule was proper
v. Federal custom: Its not a statute or rule so theres nothing to
give deference to
12)
Shady Grove Orthopedic Association v Allstate: FRCP 23, which
governs whether P may proceed as a class action, preempts state law as to
when a class action lawsuit may be filed in federal court
a. Rule 23: Unless Rule 23 exceeds its statutory authorization or
Congresss rulemaking power it governs in conflict
i. Rationale: state statute did not preclude a federal court sitting in
diversity from hearing a class action from Rule 23
ii. Rules Enabling Act: Controls the validity of FRCP, even if that
results in opening the federal courts to class actions that cant
proceed in state courts (Erie is not the controlling factor)
b. Other Decisions
i. Concurrence: In some cases, federal courts should apply state
procedural rules in diversity cases since they function as part of
the states definition of substantive rights or remedies
ii. Dissent: The opinion overrode NYs statutory restriction on the
availability of damages from 500 dollars into 5 million dollars
13)
Suggested Flow Chart
a. Is there a federal directive on point: Is there some federal
provision (Constitution, statutes, federal rules) that governs the matter
addressed by state law
i. If yes: Hanna applies and Erie does not
1. Valid: As long as the federal directive is on point, it applies
so long as its valid
2. Interpreting federal directives
a. Shady Grove test: Courts should employ the
narrower of two possible interpretations

194

b. Walker: Narrow application

c. Gasperini: Narrow application
ii. If no: Apply the Erie (RDA) prong
b. Erie Prong:
i. Byrd test: Is the state law part of the states definition of rights
and obligations
1. If yes: the state law applies
2. If no: Ask whether the state rule is bound up with the
states definition of rights or obligations
ii. Bound up test: If the rules are closely related to matters of pure
substance
1. If yes: State law applies
2. If no: Form and mode test
iii. Form and mode: Whether ignoring state law in federal court
would be outcome determinative
1. Guaranty Trust Test: Whether the case would come out
differently if we ignore state law than if we apply it?
a. If the decision comes out differently: Use state law
b. If not: Apply the Byrd Test, whether there is a good
reason not to apply state law
2. Twin Aims Test: Whether at the outset of litigation, would
ignoring state law give parties incentive to forum shop or
would it be an inequitable administration of laws
a. If yes: Apply state law
b. If no: Apply the Byrd Test- Whether there is a good
reason not to apply state law

Finality and Preclusion

1) Former Adjudication: There is a set of rules that prevents re-litigation of
claims and issues
a. Applicable only to new actions: The rules of Former Adjudication
only applies to new actions in which the original judgment was
rendered and do not apply to further proceedings in the same action in
which the original judgment was rendered
b. Two situations where issues are raised:
i. When the first case ended and the judgment has been entered:
The issue is whether that judgment from Case 1 precludes
anyone from litigation in cause 2
c. Affirmative Defenses Under Rule 8c1: Both issue and claim
preclusion are affirmative defenses under Rule 8c1. The defendant
must raise them or he risks waiving them
i. Burden of proof: Once the defendant raises the defense, she
bears the burden of proof on the issue
d. Difference from Stare Decisis: Precedent should not be overturned
but precedent can be overturned if it is argued as necessary.

195

2) Only Parties Are Bound: The rules of former adjudication generally apply
only to the parties to the first action, not to strangers of another action
a. Exception of Privity: There are some situations in which someone
who is not a party in the first action was so closely linked to someone
who was, that the stranger will be bound by the first result as if he had
been a party
i. Successor in interest: If the first plaintiffs claim is assigned to
the second plaintiff or passes by action of law, the second
plaintiff is precluded
ii. Liability of one defendant depends on liability of another:
One potential defendant may be held to be responsible for the
conduct of another. In such cases, a judgment exonerating one,
precludes an action on the same claim against another
3) Claim Preclusion Res Judicata: A final judgment on acclaim or cause of
action precludes reassertion of that claim or cause of action in a subsequent
suit. The claimant only gets one opportunity to assert a claim
a. Merger: Under the rule of merger, if the plaintiff wins the first action,
his claim is merged into his judgment. He cannot later sue the same
defendant on the same cause of action for higher damages
b. Bar: Under the doctrine of bar, if the plaintiff loses his first claim, his
claim is extinguished and he is barred from suing again on the same
cause of action
4) Claim Preclusion Requirements: In order for a prior judgment to have a
claim preclusive effect, the claim must
a. Same claim: The claim must be part of the same cause of action as a
prior claim
b. Final valid judgment on the merits: The judgment must be a final
valid judgment on the merits
c. Same Parties: The parties in the present suit must be the same
parties or in privity with the parties in the previous suit
5) Same Claim: A final judgment on the merits bars further claims by parties or
their privies based on the same cause of action
a. Cause of action: A cause of action is a single core of operative facts
that give rise to a remedy
b. Application to claimants: Claim preclusion applies to parties who
assert the same claim twice, thus it does not only apply to plaintiffs
c. Modern Test in Restatement Second of Judgments: Claim
preclusion applies to all or any part of the transaction or series of
connected transactions out of which the action arose
i. Transaction or series of transactions: What factual
groupings constitute a transaction or series are to be
determined by giving weight to three considerations:
1. Relation: Whether they are related in time, space, origin
or motivation
2. Convenient trial unit: Whether they form a convenient
trial unit

196

d.

e.

6) Final
a.

b.

3. Conforming to Expectations: Whether their treatment as a

unit conforms to the parties expectations or business
understandings or usage
ii. Permissive Joinder Comparison: The analysis requires an
analysis similar to assessing the permissive joinder of parties
Mere change of legal theory is not sufficient: Res judicata bars a
second lawsuit arising from the same operative set of facts even when
an analysis of the rights, duties and injuries involved in the second suit
reveals that they are materially different from the first
i. Issues that could be raised in litigation: The prior litigation acts
as a bar also to issues that could have been raised in that
litigation
ii. Same Analysis: Res judicata bars a second lawsuit arising from
the same operative set of facts even when an analysis of the
rights, duties and injuries involved in the second lawsuit reveals
that they are materially different from those at issue at the first
Difference Between Knowable and Unknown Facts: The plaintiffs
are not punished for unknowable facts but are punished if they or their
counsel does not know knowable facts
Valid Judgment on the Merits:
Final: If prior adjudication of an issue in another action is determined
to be sufficiently firm to be accorded conclusive effect. In a final
judgment, it leaves nothing for the state courts to do but execute
judgment.
i. Interlocutory: Every other order in a case that is not final, is
interlocutory, which means its not final. Unlike final judgments, it
can be amended during the course of litigation
ii. Pendency on Appeal: The judgment is not entitled to a
preclusive effect until all of the appeals are exhausted
iii. Reversing or Vacating Judgment in Appeal: If the appellate
court reverses or vacates the final judgment, that judgment is
no longer entitled to a preclusive effect
On the merits: A judgment is deemed to be on the merits if the claim
has been tried and determined (if the court ruled P has or has not
established his claim)
i. Meritable judgments: This includes a determination by
summary judgment on the pleadings, nonsuit and directed
verdict and determination after trial and verdict
1. Trial: A final judgment is on the merits if the case went to
trial and resulted in a judgment
2. Default and consent judgments: Default and consent
judgments terminate the cause of action and hence have
a preclusive effect
3. Involuntary Dismissals:
a. Dismissals for Failure to Prosecute or Comply
with the Rules: If a dismissal is for the failure of
197

the plaintiff to prosecute or comply with the rules

or any order of a court, a dismissal is on the merits
unless the court says otherwise
i. Failure to prosecute: Failure to prosecute
means failure to comply with a court order or
possibly failure to comply with any of the
rules
ii. Court says otherwise: The court can assert
that the judgment is not on the merits
ii. Rulings not on the merits: Rulings not on the merits generally
are preclusive only as to issues. These judgments are based
upon something unrelated to the underlying dispute, such as
some procedural or jurisdictional basis
1. Direct estoppel: Ruling on the merits is determinative of
issues decided. This occurs if the second suit is on the
same claim
2. Voluntary Judgments: Voluntary judgments under Rule
41a is without prejudice, which means its not deemed on
the merits
3. Involuntary dismissals under Rule 41b: Involuntary
dismissals are not entitled preclusive effect if they are
based on lack of jurisdiction, improper venue or failure to
join a party under Rule 19
4. Semtek Choice of Law Rule: Rule 41b does not state a
universal truth for purposes of preclusion. Whether the
first courts dismissal is on the merits requires an analysis
of the federal common law, which requires to look at the
law of the state that the federal court sat.
iii. Dismissals : If an action is dismissed on a ground closely
related to the merits, the following approaches apply:
1. Dismissals for failure to state a claim: The plaintiff is
allowed to amend but if she cannot, its presumably
because she has no right to relief under the law.
2. Punitive dismissal: Punitive dismissals, dismissals based
on a partys refusal to obey trial orders, terminate the
cause of action and have a claim preclusive effect; but
they do not involve issue preclusion regarding issues
going to the merits
c. Valid: This requirement focuses on whether the court in Case 1 had
subject matter jurisdiction and personal jurisdiction over the parties. If
it did, the judgment is valid.
i. Invalid judgments: A judgment is valid unless
1. Subject matter jurisdiction: The court lacked subject
matter jurisdiction
2. Failure of notice: If notice given to the defendant failed to
conform to due process requirements
198

3. Personal jurisdiction: If the court lacked personal

jurisdiction over the defendant
7) Parties are the Same or Are in Privity: Judgments may have a preclusive
effect on parties and those in privity with a party
a. Parties: A party to a judgment is bound by claim preclusion and issue
preclusion
b. Privies: A person in privity with a party is usually bound to the same
extent as the party. Privity indicates that the person in question has a
relationship to the party such that he should be bound
c. Situations where Non-Party Preclusion is Appropriate:
i. Privity:
1. Pre-Existing Substantive Relationship: A non-party
that is bound by a pre-existing substantive legal
relationship, such as successive holders of an interest in
real property.
2. Adequate Representation: A non-party is bound
because she was adequately represented by one of the
parties in Case 1.
a. Examples: Class action, fiduciaries (incapacitated
persons)
b. Opt-out class actions: Those who opt out of class
actions will not be bound by the judgment but
those who dont are bound
ii. Consent: A person who agrees to be bound by a judgment will
be bound according to the terms of the agreement or because
they agree to be bound
1. Consent is vitiated: Evidence of non-consent if the latter
group initiates their action while the earlier case was still
pending
iii. Assumption of Control: A non-party who assumes control over
a case may be bound by the judgment in that case
iv. Use of a Proxy: A party may not re-litigate an issue by using a
proxy, such as an undisclosed agent
v. Statutes: Special statutory schemes may prohibit repetitive
litigation by non-parties if the scheme is consistent with due
process
d. Categories of privity: There are generally two categories of privity
i. Representative: If the party acted in the first action as the
representative of the non-party, the judgment therein binds the
non-party
ii. Substantive privity: Privities may arise out of substantive
legal relationships, with the non-party bound because of a prior
legal relationship to the party
1. Examples of Substantive Privity

199

a. Bailment: Either the bailee or the bailor can sue a

third party for injury to bailed chattel and an action
by one precluded an action by the other
b. Medical losses of child or spouse: In most states,
medical expenses paid by a parent or spouse can
be recovered either by the injured person or
parent/spouse who paid hem thus an action by one
precludes an action by the other
c. Successor in interest: A successor in interest is
bound by a judgment regarding that interest to
which his predecessor was a party
d. Beneficiary of estate: A beneficiary of an estate is
bound by an action litigated on behalf of the estate
by the trustee
e. Public official authorized by law to act on persons
behalf: If a public official is authorized by law to act
on a persons behalf, the person is bound by the
officials litigation on his behalf
iii. Virtual Representation: In unusual and exceptional
circumstances, courts may say that even if there is no formal
representational role, an earlier litigant was the virtual
representative of the later litigant and the later litigant is
therefore bound
1. Balancing Test: For virtual representation the courts
must consider the totality of the circumstances to
determine whether they justify a reasonable inference of
a non-partys potential of actual involvement as a
decision-maker in an earlier decision
a. Timely notice: If the later plaintiffs received timely
notice of the earlier suit
b. Responsibility and Accountability: If the earlier
plaintiffs were responsible for or accountable to the
later plaintiffs
c. Close relationship: If there was a special type of
close relationship between the two groups
2. Same Claim Represented By the Same Attorney: The
dismissal of a claim does not preclude a second individual
from bringing a similar claim when both claims involve the
same project and the parties to each suit are represented
by the same attorney
3. Taylor Situation: The Supreme Court stated that nonparties cannot be bound by virtual representation (but its
not overruled)
iv. Exceptions of family relationships: The fact that parties
have a legal relationship with each other does not make them

200

privies so thus a husbands lawsuit is not binding on his wife, nor

a parents binding on their children
e. Non-Parties: Non-parties are generally not bound to judgment
because a person has not had his day in court and as a matter of due
process, cannot be denied a valuable right
i. Federal statutory exception: For cases involving federal
employment claims, Congress in the Civil Rights Act of 1991
gave binding effect to a litigated or consent judgment or order
when the non-party had adequate notice and opportunity to
present objections or when the non-partys specific interests had
been adequately represented by another
ii. Due Process Limits on Extreme Application of State
Preclusion Law: Although states are generally free to decide
the content of their own preclusion law, federal due process
imposes some limits on extreme applications to non-parties
iii. Non-Party Benefit: A non-party may benefit from the judgment
in an action to which he was not a party
1. Claim preclusion: If two defendants have a relationship
in which one is responsible for another, a judgment
exonerating either potential defendant precludes an
action on the same claim against the other
a. Exception for Joint or Concurrent Liability: The form
of claim preclusion applies only to vicarious liability
and not in cases of joint or concurrent tort liability
iv. Non-Party Identicality: Non-parties may be barred from bring
suit by res judicata in a prior suit based on the same facts if, and
only if, there is identicality between them and the parties in the
earlier case
1. Identicality of parties: Identicality of the parties
depends on privity
a. Privity: Depends on whether the plaintiffs had
substantial control over the earlier plaintiffs or were
virtually represented by them
b. Substantial control: Substantial control depends
on the totality of the circumstances, such as what
arguments are presented, what sources of law are
relied on, what motions are filed. It goes beyond
input
c. Virtual Representation: It involves the identity of
interests and requires actual or constructive notice.
There is a balancing of equities.
2. Totality of the Circumstances: The court must consider
the totality of the circumstances to determine whether
they justify a reasonable inference of a nonpartys

201

potential of actual involvement as a decision maker in the

earlier litigation
8) Exceptions to Claim Preclusion: Only under extraordinary circumstances
may a party relitigate a claim that has been reduced to judgment. The losing
party would have to establish grounds for setting aside the judgment and
that she has a good cause on the merits.
a. Unappealed Adverse Judgment: Res judicata bars relitigation of an
unappealed adverse judgment where other plaintiffs in similar actions
against common defendants successfully appealed the judgments
against them.
b. Restatement Second of Judgments 26(1):
i. Consent to Split Claim: The court allows parties to case 1 to
expressly or impliedly consent that the claimant will split her
claim without preclusive effect
ii. Limitations: If the claimant in Case 1 could not have sought all
rights to relief for her claim because of limitations imposed on
the court in Case 1.
iii. Contrary to Scheme: Another exception is one that recognizes
that claim preclusion would be contrary to the appropriate
implementation of a constitutional or statutory scheme
1. Declaratory judgment e.g.
iv. Fairness Exception: There is an exception to claim preclusion for
public policy and simply justice (Supreme Court denied it in
Moitie)
9) Defenses and Counterclaims
a. Compulsory Counter-claims: If the defendant fails to bring the
claim, she is barred from asserting the counterclaim either as a
defense or as the basis for affirmative relief in an independent action
i. Nullification Exception: If a former defendant seeks relief in a
later suit based on a claim that could have been asserted as a
counterclaim and the relief sought would nullify the judgment
entered in an earlier suit, the later action is barred even if there
was no applicable compulsory counterclaim rule in the earlier
action
10)
Cases:
a. Car Carriers Inc v Ford Motor Company: An automobile transporter
sued Ford, its major customer under the Sherman Antitrust Act based
on a conspiracy that was against its trade agreements. The district
court dismissed the complaint with prejudice since P did not suffer the
type of harm that the antitrust laws were designed to recompense. P
brought a new complaint using the same fact situation but this time
against violations of the RICO act and the Interstate Commerce Act
b. Brent Taylor v Robert Sturgell, Federal Aviation: P1 filed a
Freedom of Information Act request seeking plans for a aircraft from
the FAA. The FAA refused to turn it over as protected trade secrets. The

202

district court found for D. P2, represented by P1s attorney, filed

another FOIA request.
i. Burden of Proof: Since preclusion is an affirmative defense,
the defendant bears the burden of proof and the burden of
persuasion.
ii. Rationale:
1. Nonparty preclusion: Must be balanced against the
historic tradition that everyone should have her own day
in court
2. Virtual representation: Should be applied rarely and under
delineated exceptions to the general rule.
3. Remanded: The case was remanded to see whether P2
was P1s undisclosed agent.
c. Gonzalez v Banco Central Corp: P1 brought a fraud suit against D,
the selling developers. The court rendered a verdict for D. P2 tried to
join in vain in its own suit against D, 5 months after the start of
litigation.
i. Rationale:
1. No involvement: P2 were initially rebuffed in attempting to
join the P1s, but five years later were asked by the same
Ps to join the ongoing litigation
2. No virtual representation: A balancing of the equities
resulted in finding that P2 were not virtually represented
3. No timely notice: There was no evidence that P2 had
timely notice of the earlier suit
4. No accountability: There was no evidence that P1 was
accountable to P2
5. No special close relationship: No evidence that there was
a special close relationship
6. No consent: No evidence that there was consent,
explicitly or implicitly
a. Contrary evidence: P2 initiated their action while
the earlier course was still pending

Collateral Estoppel
1) Issue Preclusion (Collateral Estopel): If the second lawsuit involves a
different claim, the first judgment may be invoked as to all matters actually
litigated and determined in the first action and essential to the judgment. It
narrows the scope of what must be litigated in case 2
a. Issue Preclusion Parties: The basic rules is that a party who
litigates an issue against one party and loses may not relitigate that
issue with another party

203

i. Rationale: If a party has had a full and fair opportunity to litigate

an issue in one action, there is no reason to waste the time of
the court and other persons in relitigating that issue
b. Five requirements of Issue Preclusion: Issue preclusion has five
requirements
i. Valid Final Judgment On the Merits: The prior case must have
ended in a valid final judgment on the merits
ii. Same Issue Actually Litigated: The same issue presented in
Case 2 must have been litigated and determined in case 1
iii. Essential: The issue must have been essential to the judgment
in Case 1
iv. Party: Issue preclusion can only be asserted against one who
was a party or in privity with a party in Case 1
v. Mutuality: The court must assess mutuality, which concerns the
question of who may assert issue preclusion
c. Collateral Estoppel Issues:
i. Multiple Grounds - Impossibility: When a case could have been
decided on multiple grounds but its impossible to figure out
which ground it was decided on, none of them can be
collaterally estopped
ii. Multiple Issues- Some: When multiple issues are presented in a
case but only one or some of them are actually grounds for
judgment, the one that is not explicitly stated as grounds for
judgment is not collaterally estopped
iii. Multiple Grounds- Explicit: When a case has been explicitly
decided on multiple grounds and its impossible to tell which
ground, all such grounds are collaterally estopped
iv. Burden of Proof: The burden of proof is always on the party
seeking preclusion
1. Standard: The standard of proof is certain to every
extent
2) Same Issue Requirement: Collateral estoppel precludes relitigation of the
central issue in a prior suit
a. Actually Litigated: The issue preclusive effect of a prior judgment
applies to issues actually litigated in the former action, but not to those
that merely could have been litigated therein
i. Burden of Proof: The party asserting issue preclusion bears
the burden of establishing that the requirements are met. This
burden involves presenting an adequate record to support the
assertion
ii. Determining Whether the Issue was Litigated: The
appropriate question is whether there has been an adversary
presentation and a consequent judgment that was not the result
of the parties consent.
1. Generally: Generally, this situation is easy if Case 1 went
to trial and evidence was presented on a particular issue

204

iii. Non-Litigated Issues: Bench trials, jury trials in which neither

special verdicts nor interrogatories were used.
1. Decided without a Trial or Hearing: E.g., a voluntary
dismissal with prejudice, default judgment, facts admitted
into pleadings or admission for failure to respond under
Rule 36 has a claim preclusive effect but since it had no
issue litigated, it will not have an issue preclusive effect
iv. Summary Judgment: Summary judgment can carry a issue
preclusive effect. Determining there is no material factual
dispute is an adjudication on what facts exist.
b. Determining Whether the Issue was Determined: If the factfinder determines one theory is established and ignores others or a
party withdraws the issue before submission to the fact-finder, the
issue was not determined
i. Identity of Issues: Collateral estoppel may be applied only
when there is an identity of issues. When the prior judgment is
ambivalent, the doctrine is not utilized
1. General verdicts v Special Interrogatories: Collateral
estoppel is more readily available when the prior case
contained special interrogatories
a. General verdicts: Most actions involve general
verdicts without specific findings by juries, and in
those cases its difficult to find an identity of issues.
i. Examples: Bench trials or cases without
special verdicts or interrogatories
b. Special verdicts or Interrogatories: In jury
trials, the jury can be pinned down on specific
determinations through the use of special verdicts
or interrogatories
ii. Centrality: An issue is considered decided under collateral
estoppel if the issue is integral, essential to, or the centerpiece
of a prior final judgment.
1. No explicit finding: Even if the jury in the prior suit did not
make an explicit finding, but such finding was a necessary
component of the decision reached, it constitutes a
centerpiece of the case
iii. Issues not Determined:
1. Alternative theories: If the claimant presents
alternative theories and the jury bases its decision on one
of the alternatives and ignores the other
2. Withdraw Evidence: If the parties present evidence on
an issue and then withdraw the issue before submission
to the fact finder
c. Determining Whether the Cases Involve the Same Issue: The
determination depends on how the court characterizes the issue
decided in Case 1. It can see it narrowly or broadly.
205

i. Restatement Determination: Restatements instructs the

courts to examine certain factors:
1. Overlap of Evidence and Arguments: degree of overlap
between the evidence in arguments in both cases,
2. Same Rule: whether new evidence or argument in Case 2
involves the same rule of law as in case 1,
3. Pre-Trial Preparation: whether pre-trial preparation in case
1 could reasonably have embraced the new evidence or
argument in case 2, and
4. Close Relationship: whether there is a close relationship
between the claims asserted
ii. Unclear Factors: In the end, it may prove best to find that
identical issues are involved only on a strong showing that
relitigation would present matters that clearly bore on the
ultimate issues raised in the first action or would jeopardize
significant interests of justifiable reliance or repose. As with
claim preclusion, such showings must be narrowly tailored to the
distinctive considerations that arise from litigating and living
under the different rules of substantive law.
d. Split of Authority
i. Default Judgments: There is a split of authority on whether a
default judgment creates issue preclusion
1. Circuit decisions: Many decisions hold that a default
judgment is conclusive as to all issues that were
necessarily involved in the former suit, even though the
action went by default and there was no actual litigation
thereof
2. Restatements: Restatement 2nd of Judgments holding that
actually litigated, requires evidence presented to, and a
decision by, a trier of fact (so that default judgments do
not qualify
a. Better view: This is believed to be the better view,
since a person defaulting to a complaint may not
have foreseen that the admissions created thereby
would return to haunt him in a subsequent
unrelated lawsuit
ii. Stipulated Judgments: There is a split authority on whether a
stipulated (consent) judgment is preclusive
1. Comment: Even if an issue conceded through a default or
consent judgment is not treated as within issue
preclusion, it will still be admissible as admissions
iii. Jury vs. Non-Jury Trial: The presence or absence of a jury in
the first trial is a neutral factor (matters actually litigated in
action 1 may be held collaterally estopped in action 2, even if

206

there was no right to a jury in the earlier action), thus the

present suit is jury triable
3) Essential to the Judgment: Collateral estoppel only applies to those
matters decided in the earlier lawsuit that was essential to the courts
determination, which is essential to the cause of action or defense
established by the judgment therein
a. Assessment: Assessment of essentiality must focus on the difference
between the issue decided and the judgment entered in the case. An
issue is essential only if it appears that the judgment could not have
been reached without determining the issue.
i. Determination: Whether judgment would be the same if the
finding on the issue had come out the other way. If so, the
finding is not essential to the judgment because the judgment
does not rest on the findings on that issue
b. Dismissals: When parties stipulate to dismiss a case, nothing has
been litigated and because any claim has more than one element, it
will be the rare case that a party can show that an issue was essential
to the case
c. Alternate Determination: Findings on issues, any one of which
would be sufficient to compel the judgment that was entered in which
either one would result in the same judgment
i. Effect: Courts are split
1. Restatement of Judgments Second: If there are
alternative judgments, both are deemed not to be
essential to the judgment in Case 1 and neither one is
entitled to issue preclusion
ii. Significance of Appeal: Some courts distinguish between
cases in which the earlier judgment was appealed and those in
which it was not. If no appeal was taken, they will hold that
neither finding is preclusive. If an appeal is taken, however,
there is preclusion with respect to those issues that the
appellate court reaches that support its judgment.
4) Exceptions to Issue Preclusion: Issue preclusion is not as strictly applied
as claim preclusion (Restatement Second of Judgments 28)
a. When the two actions involve the same parties: Under
Restatement of Judgments section 28, the loser may be allowed to
relitigate in an issue in a subsequent action if
i. Appellate review was unavailable
ii. Even if review was available, the nature of proceedings in a
court handling the first action was informal or expedited, as in
small-claims court
iii. The stakes involved in the second suit was much larger, such as
the first was in small-claims while the second was a majorpersonal injury claim
iv. The issue is one of law and the claims in the two actions are
substantially unrelated
207

v. The burden of proof is materially different or shifted

vi. There is a clear and convincing need for a new determination
because, for instance, the party who lost on the issue could not
have been expected to foresee that the issue would arise in the
later action
b. When the second action involves a different party: All these
exceptions apply, and in addition, the loser may relitigate if there are
other factors that justify allowing her to do so
5) Non-Mutual Issue Preclusion: By whom can preclusion be asserted by?
a. Mutuality Background: Mutuality of estoppel prevented a non-party
from having the benefit of issue preclusion in his favor. The theory was
that an estoppel should apply only if it was mutual (since the nonparty
would not have been bound by the issue had it been decided the other
way, because he had not had his day in court), he should not be able
to invoke estoppel in his favor based on the earlier judgment.
i. Parties: Only people who can use preclusion in Case 2 are the
people who would be bound by judgment in Case 1
b. Non-mutual collateral estoppel: Under nonmutual collateral
estoppel, a new party is allowed to invoke issue preclusion against a
party who litigated and lost on an issue in a prior action
i. Common law exceptions: Common law exceptions only apply
in cases involving an indemnification relationship
1. Vicarious liability: Non-mutuality applies in vicarious
liability where the primarily liable party is found not
negligent, the plaintiff is contributorily negligent
c. Offensive vs Defensive use of Prior Judgment: Earlier decisions
held that issue preclusion could be used defensively against a plaintiff,
but not offensively against a defendant (to block defendants attempt
to relitigate issues on which he had lost I nthe earlier trial) But the
Supreme Court held this was not a crucial distinction.
i. Nonmutual Defensive Issue Preclusion: A doctrine that may
be invoked by a defendant against a plaintiff, whereby the
plaintiff is prohibited from relitigating issues litigated and
determined in a prior proceeding against another defendant
1. Generally: In defensive estoppel, the party being estopped
is usually the plaintiff in the original suit and chose the
forum and the defendant against whom to litigate that
issue
2. Example: Plaintiff claims to be injured by concurrent acts
of D1 and D2. In an action against D1, P suffered no injury.
If P sues D2 for the same loss, D2 can use issue preclusion
defensively.
ii. Nonmutual Offensive Issue Preclusion: A doctrine that may
be invoked by a plaintiff whereby a defendant is prohibited from

208

relitigating issues litigated and determined in a prior proceeding

against another plaintiff
1. Generally: In offensive use of collateral estoppel, a new
plaintiff seeks to borrow a finding from a prior action to
impose liability on a party who was a defendant in that
action
2. Example: P1 and P2 are hurt when the train collides. P1
wins the suit against the railroad. Most decisions permit
P2 to use the earlier judgment as conclusive proof against
the railroad in a suit by P2.
3. Requirements: Nonmutual offensive issue preclusion is
appropriate only if the court in the second case is
convinced of two factors:
a. Difficult to Join First Action: If the party using issue
preclusion could not easily have joined in the
earlier action and
b. Fair: That the use of issue preclusion is not unfair to
the defendant in three ways
i. Defendant sued for small amount: If a
defendant is sued for a small amount of
money has little incentive to defend with
vigor, especially if she foresees no other
litigation concerning the event. If she lost in
case 1, its unfair to allow preclusion where a
claimant seeks recovery
ii. Multiple judgments: If there were multiple
judgments concerning the underlying events,
it would be unfair to let the claimant get
issue preclusion from one in which D won
and another which D lost
iii. Full and fair opportunity: Unfair to allow issue
preclusion if D did not have a full and fair
opportunity to litigte
6) Limitations of Non-Mutual Issue Preclusion: Although issue preclusion
can be used offensively or defensively, the benefits of such estoppel may be
denied under circumstances
a. Issue would not be conclusive between the parties: If the issue
would not be treated as conclusive between the parties to the first
action, it cannot be conclusive in favor of a third person not a party to
the first action
b. Unjust under the circumstances: A third person cannot have the
benefit of issue preclusion against a party to the first action if it would
be unjust in the circumstances.

209

i. Determination of unjust: In deciding whether preclusion

would be unjust, the court may consider relevant factors such as
the following
1. Possible joinder: Whether the person seeking benefit
could have joined in the prior action but chose to sit out
2. Inconsistency: Whether the prior determination was itself
inconsistent with an earlier determination of the same
issue
3. Serious consequences: Whether the consequences in the
second action are much more serious than those in the
first action
4. Procedural opportunities: Whether the party estopped has
procedural opportunities in the second action (broad
discovery, ability to get important witnesses) that were
not available in the earlier action
5. Compromise verdict: Whether the prior finding was
apparently a compromise verdict
6. Reconsideration: Whether the issue is one of law whose
reconsideration should not be foreclosed
7. Other: Whether other compelling circumstances justify
relitigation
7) Full Faith and Credit: Congress has specifically required all federal courts
to give preclusive effect to state court judgments whenever the courts of the
state from which the judgments emerged would do so
8) Cases
a. In operation
i. David P Hoult v Jennifer Hoult: D sued P, her father, for
assault, battery IIED, and presented evidence that D sexually
abused and raped her. The jury found for D and awarded
damages. D wrote to several professional associations stating D
raped her. P brought a defamation action
1. Rationale:
a. No explicit jury finding necessary: Even though the
jury in the prior suit did not make a finding that P
raped D, such finding was a necessary component
of the decision reached by the prior jury.
b. Centerpiece charge: The rape charges were pivotal
and constituted a centerpiece of her case
c. Counsels opening/Closing statements: Both her
counsel and the defense counsel referred to the
rape in the opening and closing statements
b. Essential to the judgment
i. Jarosz v Palmer: P hired D to assist P and his 3 partners in the
acquisition of a company. 2 suits were filed.
1. First suit: First, by P against his partners and the
corporation after the partners terminated him. The

210

company and partners retained D as the attorney and P

moved to disqualify D based on his attorney-client
relationship with D in the corporate acquisition. Motion
was denied since P failed to prove that D previously
represented him individually
2. Second suit: P filed one against D for alleged malpractice.
D defended those claims on the ground that he never
represented P individually. Due to the motion to disqualify
was denied in the second case, issue preclusion
prevented P from asserting D represented him
3. Rationale:
a. Actually litigated: The alleged attorney-client
relationship was litigated and the requirement for
actual litigation does not require a court to hold an
evidentiary hearing or trial before issue preclusion
can apply.
i. Reason: The issue was briefed, there was a
hearing and there was a determination
b. Denial of the motion to disqualify: The denial of the
motion to disqualify was not essential to the
judgment of the underlying case
c. Holding: Issue preclusion cannot apply
c. Nonmutual issue preclusion
i. Parklane Hosiery Co Inc v Shore: P1, the SEC, filed suit
seeking injunction against D alleging the company issued a
materially false and misleading proy statement that violated
federal securities laws. The court found that the proy was false
and misleading and entered a declaratory judgment. P2, and
other stockholders sued D in a class action alleging the same
thing. P2 moved for partial summary judgment asserting D was
collaterally estopped from relitigating the issue it resolved
against it in the action brought by P1. District court denied the
motion since it would deny D of its 7th amendment right. Court of
appeals reversed
1. Trial courts discretion: The trial court has broad
discretion to determine when offensive estoppel should be
applied, unless the application would be unfair to the
defendant
2. Rationale:
a. No unfairness is shown: D received a full and fair
opportunity to relitigate its claims with P1.
b. Reasons why defensive and offensive estoppel
should be used differently:
i. Judicial economy: Does not promote judicial
economy in the same manner defensive use

211

does, since defensive precludes a plaintiff

from relitigating identical issues by merely
switching adversaries
ii. Unfair: Offensive estoppel may be unfair to
the defendant
3. Notes:
a. Proxy statement: A statement, containing specified
information about the SEC, in order to provide
shareholders with adequate information upon which
to make an informed decision regarding the
solicitation of their proxies
d. Issue Preclusion in Mass Tort Litigation
i. Hardy v Johns-Manville Sales Corp: Class of Ps sued various
Ds for personal injury due to asbestos exposure. One theory was
products liability based on failure to warn. Ps moved for
collateral estoppel order based on a jury finding in a prior case
that the same Ds failed to warn of the danger of asbestos but it
was unclear from the record as to when the jury believed the
duty to warn came into being. In the present action, warnings
were placed by D at various times from 1965-1969.
1. Rationale:
a. Ambivalent prior judgment: The jury in the prior
action could have found that the duty to warn arose
any time between 1963-1969, when it held the duty
to have warn is unclear from the record
b. Defendants warnings: Since Ds began to issue
warnings as early as 1964, its possible it fulfilled
any duty to warn it may have had

Counterweights to Finality
1) Federated Department Stores Inc v Moitie: P, the government, brought
an anti-trust action against D alleging it violated the Sherman Act by agreeing
to fix the retail price of womens clothing in N. Cali. 7 parallel civil actions
were filed by private Ps seeking treble damages on behalf of the proposed
class of retail purchasers, including P-Moitie1 in state court and P-Brown1 in
federal district court. MB1s complaints tracked almost verbatim the
allegations of Ps complaint, but M1 referred only to state law. All of the
actions were assigned to a single federal judge who dismissed all the actions
due to pleading defects. P in five suits appealed in federal court of appeals,
while the single counsel representing MB chose not to appeal but refilled 2
actions in state court (MB2).
a. Issue: Does res judicata bar relitigation of an unappealed adverse
judgment where other plaintiffs in similar actions against common
defendants successfully appealed the judgments against them?

212

b. Rationale: Yes
i. Judgment based on Erroneous View of Law: A judgment, merely
voidable because its based on an erroneous view of law, is not
open to collateral attack but can only be corrected by a direct
review and not by bringing another action upon the same cause
of action.
ii. BM1 and BM2: BM1 were final judgments on the merits and
involved the same claims and parties as BM2. Both the parties
seek to be the windfall beneficiaries on an appellate reversal
procured by other independent parties and its apparent that BM
made a calculated choice to forgo their appeals
iii. Removal support: The court agreed that some claims had
sufficient federal character that supported removal to federal
court and BM attempted to avoid removal by artfully casting
their essentially federal law claims as state law claims
c. Notes:
i. Treble Damages: An award of damages triple of the amount
awarded by the jury and provided for by the statute for violation
of certain offenses
2) Allen v McCurry: P was convicted in state court after his motion to suppress
certain evidence on grounds of unconstitutional search and seizure was
denied in part. Upheld in appeal and he was unable to pursue federal habeas
corpus since he didnt assert that the state courts denied him a full/fair
opportunity to litigate his claim. Next, he brought suit in federal court under
Section 1983, seeking damages from D and other cops, who was responsible
for seizing evidence. D raised the state courts partial rejection of the claim
as a collateral estoppel defense.
a. Rationale:
i. Section 1983: Section 1983 was designed to allow federal relief
when state courts were unable or unwilling to protect federal
rights so its an exception to preclusion where there was not a
full and fair opportunity to litigate the constitutional claim or
issue in the state court proceeding
ii. Not Unlimited: Every person asserting a federal right is not
entitled to one unencumbered opportunity to litigate that right
in a federal court, regardless of the legal posture in which the
federal claim arises
iii. Inability to Obtain Habeas Corpus: Ps inability to obtain federal
habeas corpus relief upon his 4th amendment claim does not
render preclusion inapplicable
iv. Undecided issue: Whether the normal rules of claims preclusion
should apply where a Section 1983 P seeks to litigate in federal
court a federal issue which he could have raised but did not
raise in an earlier state court against the same adverse party.
b. Notes:

213

i. 42 USC 1983: Provides that every person, who under color of

state law, subjects or causes to be subjected any citizen of the
US or person within its jurisdiction to be deprived of rights,
privileges and immunities guaranteed by the federal
Constitution and laws, is liable to the injured party at law or in
equity

Class Actions
1) Introduction: One or more members of a class of persons similarly situated
may sue or be sued on behalf of all members of that class. Such lawsuits are
permitted where considerations of necessity or convenience justify an action
on behalf of the group rather than multiple actions by the class members
individually
2) Federal Rule 23: Members of a class can sue or be sued with binding effect
on the class as a whole
a. Prerequisites: All four of the following conditions under Rule 23a
must be established in any type of class suit. All class actions must
also fit into one of the categories of Rule 23b
i. Conditions of 23a
1. Numerous parties: The class must be so numerous that
joinder of all members individually is impractical
a. No fixed minimum: There is no fixed minimum
number required to make a class too numerous for
joinder of all members individually.
i. 50 or less: Whether a class will be permitted
turns on the following factors
1. Size of each members claim: Smaller
the claim, more likely a class suit is
allowed
2. Practical likelihood that individual suits
will be brought: Lower likelihood, more
likely a class suit
3. Public importance of the right being
forced: greater public importance,
more likely a class action
4. Geographic location of class members:
more difficult the geographic location
makes it for members to intervene,
more likely class action
b. No fixed maximum: There is no fixed maximum size
for a class action
i. Limitation of Rule 23b3: The class must be
manageable because the likely difficulties in
managing a class action is one of the factors

214

ii. Limitation of notice requirements: In some

class suits, all identifiable members of the
class must be given individual notice to the
action
c. Need for ascertainable class: The class must be
defined with sufficient clarity that its members be
identified
i. Injunctive relief: This concern may be less
important in injunctive relief because
injunctions can be fashioned without
knowing the identities of members
d. Minimum number of class members under the Class
Action Fairness Act: Under the Act, the jurisdictional
provisions are available only if the class has more
than 100 members
2. Common question requirement: The action must involve
questions of law or fact common to the class
a. Predominance of common questions: The common
questions must predominate under 23b3 but under
Rule 23a2, predominance is not required
b. Fact question needed: it is usually essential that the
common question have factual content that would
make common litigation desirable
c. Distinguish-permissive joinder: Ordinarily, a closer
factual connection is required to satisfy the class
action common question requirement that the
common question requirement for permissive
joinder
d. Problem of individual damages: If class members
suffered individual damages, that presents
individual questions
i. The need to assess individual damages will
not always be a problem: since there may
also be common questions regarding liability
e. Problem of variation in state law: If the claims are
based on state law and class members live in
different states, common questions need not be
present because the factual questions to be
resolved turn on different legal principles
3. Representatives claims typical
4. Adequacy of Representation
3) Class Action Practice, Policy and Context
4) Due Process Foundations
a. Adequacy of Representation
i. Hansberry v Lee
b. Participation

215

i. Phillips Petroleum Co

216