CIVIL PROCEDURE 2011 Table of Contents I. II. Notice a. Service of Process Personal Jurisdiction a. In Personam b.

Property-Based Subject-Matter Jurisdiction a. Diversity b. Federal Question c. Supplemental d. Removal e. Comparative Venue a. Choice of Law b. Venue c. Forum Non Conveniens Erie Doctrine a. Pre-Erie b. Erie Doctrine c. Hanna Test d. Federal Common Law Pleadings a. Complaint b. Answer c. Amendments Discovery a. Procedure & Scope b. Privileges c. Sanctions Dispositive Motions a. Summary Judgment b. Judgment as a Matter of Law Equitable Remedies a. Injunctive Relief Parties a. Joinder of Claims 3 3 4 4 9 9 9 10 10 12 12 13 13 14 14 15 15 15 17 18 19 19 21 21 22 22 23 24 25 25 26 27 27 27 27

III.

IV.

V.

VI.

VII.

VIII.

IX. X.

b. Joinder of Parties c. Class Actions XI. Judgments a. Claim Preclusion b. Issue Preclusion c. Inter-Jurisdictional Preclusion Checklists a. Personal Jurisdiction b. Notice c. Subject Matter Jurisdiction d. Venue e. Erie Doctrine f. Pleadings g. Joinder h. Discovery i. Pre-Answer Motions & Summary Judgment j. Claim Preclusion k. JMOL & Motion for a New Trial

28 30 33 33 35 38 39 39 44 44 48 50 52 59 63 65 67 68

XII.

Notice
Service of Process I. Notice: If court has PJ over D, notice must be given for accuracy and dignitary reasons. a. In personam: Notice by publication is insufficient. b. In rem: Notice by publication and attachment of property. c. Actual notice does not always constitute valid or sufficient service of process. d. Failure to receive actual notice does not always constitute invalid service as long as it was properly served; party may however receive an extension granted by the court if they can prove good cause for not actually receiving the summons. e. Consists of service (delivery to the party) and process (summons and copy of complaint). II. F.R.C.P. 4: Defines proper aspects of notice: a. Process: Documents consist of summons and complaint. Court must stamp summons to certify the document. May be served by any person18 years or older, and not a party to the complaint. i. 4(d) Waiver or service is form of service by mail. Party must mail notice and request for waiver, D must be provided with court where complaint was filed, waiver form, and prepaid return envelope. If D refuses to waive without good cause, D must pay for personal service (normally P pays). 1. Includes service by email; a reliable means. ii. 4(e): Personal service must be in-hand to the party, or left at their home with a suitable individual who also resides there, or delivered to an authorized agent. Service of process may also follow the service laws in the state in which the party is being served. iii. 4(h): Corporations may be served by serving an officer, general or managing agent, or an authorized agent. iv. 4(k): Service does not have to be within state where court is located as long as party is subject to PJ in the state they are being served in; or may serve in state of court (state long-arm statutes). 1. 100 mile bulge rule allows summons to be issued to out of state parties. v. 4(m): Must be served within 120 days and court will dismiss complaint without prejudice (may file again). May extend time for service if P shows good cause. b. Constitutional Sufficiency: i. Reasonable Attempt: 1. Notice received: Constitutional. 2. No notice received: Constitutional. ii. Unreasonable Attempt: 1. Notice received: Unconstitutional. 2. No notice received: Unconstitutional. III. C.P.L.R. 308 a. Process: Party may be served at their home by any person of suitable age and discretion; does not need to live there. If no continues to be at the residence, you can pin it to the door (nail and mail service) and mail copy to party. b. Due Diligence: Party may be served upon motion without notice, made ex parte, if P did due diligence in trying to contact D. IV. Mullane v. Central Hanover Bank: Notice made by newspaper announcement to notify trustees of communal trust fund Bank created to diversify the portfolios. a. Notice was in accordance with NY Banking Law if published in local newspaper once a week, for four weeks, with name of bank and trusts and estates included in the fund. P objected statute violated US Constitution, 14th Amendment Due Process. 3

b. Reasonably Calculated: Supreme Court determined notice must be reasonable under certainty to appraise the interested parties, and while actual notice is not required to all Ds, due diligence is required to take all opportunities to notify D. i. Notice by publication is not sufficient where better notice is available; i.e. if known names and addresses, notice by mail is actual.

Personal Jurisdiction
In Personam I. State Long-Arm Statutes a. Coextensive Statutes: Allows J to the limits of the Due Process Clause; i.e. minimum contacts test. Allows full scope of Constitutionally allowed range. b. Enumerated/Specific Act Statutes: Set forth specific acts or facts that must exist to allow exercise of J. May be narrower than constitutional power, but may not exceed the limits of due process. Enables parts of Constitutionally allowed range. i. Reasonably Calculated Standard: Must be reasonable, in the interest of forum state protecting its citizens, and convenient. c. Analysis: Does state statute authorize exercise of PJ via tortious acts, business transactions, etc., and is assertion constitutional? II. Traditional Basis a. In-State Service: J is valid where D was served with process within the state, unless Ds in-state presence was created through fraud or against ones will. i. Pennoyer v. Neff: Established territorial theory of PJ. Person cannot be subject to in personam J in more than one state at a time, or may have property in rem or property attached via quasi in rem. 1. Neff made two claims: No PJ because he did not own property at the time of judgment so there was no PJ under condition of owning in-state property, and no proper service because property was purchased after judgment was entered. 2. Collateral Attack: If one loses original case and does not appeal, but a second related case comes up, they may collaterally attack original judgment as defense for second one. 3. Territorial Theory of J: Someone is physically present in state, a residence of the state, or owns property in the state. a. Exceptions where person has appointed agent for in-state service. ii. Burnham v. Superior Court: In-state personal service makes in personam J valid, regardless of if Shoe standards are met. 1. Fortuitous or brief presence is sufficient if you serve party while there are in the state; fairness is not relevant issue. 2. Scalia makes argument that continued acceptance of presence for J illustrates tradition prevalence, and allows for predictability. b. Persons Domiciled in State c. Consent, Either Explicitly or Implicitly: J is valid where D voluntarily appeared and proceeded to defend themselves in the action without challenging PJ. i. Voluntary Appearance: D fails to challenge PJ and makes an appearance to defend themselves. ii. Hess v. Pawloski: States have the power to legislate via statute that nonresidents on its highways consent to the appointment of a third party as agent for service. Validates application of implicit consent to PJ. 4

III.

1. Implicates physical intrusion in state, use of state resources; thus subject to states law and J. 2. Differs from contracts, which cannot be construed as consent. Modern Jurisdictional Analysis a. Minimum Contacts: General Jurisdiction i. International Shoe v. Washington: What constitutes sufficient presence in a state? 1. D must have minimum contacts with forum state such that suit does not offend traditional notions of fair play and substantial justice. ii. Four-Position Matrix: Balancing of contacts test. 1. General: Contacts are continuous and substantial, and subject parties to jurisdiction for anything within the state. 2. Specific: Contacts are only sufficient for J over claims arising from said contacts. Presence based on contacts does not establish general J. iii. Guidelines: 1. Minimum contacts apply to individuals and corporations. 2. Limitations on PJ found in long-arm statutes are distinct from the constitutional limits imposed by minimum contacts. 3. If an act is committed outside the state, which is known to have harmful effects within the state, claims arise out of related activities. 4. Analysis focuses on time when act occurred, not time of lawsuit. b. Shoe Spectrum General Decreasing contacts Increasing contacts | no casual or single, related continuous substantial contacts isolated act but limited or pervasive |_____|_________|__________|_____________|________|________|_____| no no specific specific general jurisdiction jurisdiction jurisdiction jurisdiction jurisdiction i. Continuous and Systematic and Related: PJ is always appropriate. 1. International Shoe v. Washington ii. Continuous and Systematic but Unrelated: Possible PJ. Contacts must be substantial. 1. If claim is unrelated to activities, state is neither prohibited nor compelled to assert in personam J, and due process is not violated if it is asserted. iii. Single and Isolated and Unrelated: Never PJ. 1. Helicopteros v. Hall: Unrelated claims must be countered with continuous and systematic activities. a. Helicol had minimum contacts with Texas, but long-arm statute cannot provide PJ conditions broader than the minimum which the constitution asserts. b. Brennan dissent: Failed to consider fundamental transformation of national economy. c. Addresses argument that sometimes J is so unreasonable that what appears to be min. contacts isnt really enough for J, or that sometimes J is so reasonable that less than minimum may be sufficient. iv. Single and Isolated and Related: May qualify as specific jurisdiction. 5

1. Goodyear v. Brown: State has general J over corporation when they have continuous and systematic activities or are domiciled in the state. a. State was neither the place of incorporation or principal place of business, and activities in that state were insufficient. b. Considerations of balancing convenience between P bringing suit in foreign country and D having to defend themselves in the States. c. Sufficiency of Contacts: Specific Jurisdiction: Analysis of minimum contacts and reasonableness. i. Purposeful Availment: D purposefully avails itself of the privilege of acting within the forum state such that it receives benefits and protections of its laws. 1. World-Wide Volkswagen Corp. v. Woodson: Unilateral activity of a party does not satisfy minimum contacts. Party did not knowingly delivers its products into the stream of commerce in forum State and could not have reasonably anticipated having to defend there. a. Product only foreseeably entered other States due to activities of consumer, not retailer. b. Decreased Gray ruling. Due Process may prevent States from exercising K over nonresidents even when other determining factors are present due to lack of availment. c. Brennan dissent: Automobiles are intended to move around, and this retailer should have been able to anticipate their product reaching other states. ii. Intentional Torts: PJ is valid where a party intentionally targets its tortious conduct at a forum resident and causes them harm 1. Calder v. Jones: Libel suit; determined that intentional torts subject party to PJ. a. Intentional conduct in FL was calculated to cause injury to party in CA; thus minimum contacts analysis not necessary. b. First Amendment rights do not outweigh other concerns when there is tortious conduct. c. Effects Test: D must have committed an intentional act, which was expressly aimed at the forum state, and caused harm that brunt of which was suffered and which D knows is likely to be suffered in forum state. iii. Contractual Contact: If there is a contract between the parties, use contractsplus analysis to consider if solicitation, negotiation, and course of conduct support purposeful availment. 1. McGee v. Intl. Life Insurance Co.: J is valid when it is based on contract with substantial connection to the State. a. Balance of convenience between P and D. b. Expansion of permissible scope of PJ attributable to nationalization of commerce. 2. Burger King v. Rudzewicz: Contract alone is not enough to establish J, there must also be foreseeability that D was engaged with forum State. a. D purposefully availed himself to J within the State through the contract, and should have reasonably believed he would be subject to PJ within the corporations state. b. Contracts Plus Test: Just a contract is not enough, must include future consequences that establish minimum contacts. 6

iv. Stream of Commerce: Product has caused harm to party only after traveling through the stream of commerce, i.e. indirectly. 1. Gray v. American Radiator: Even if products are indirectly sold in the forum state, PJ is valid where the products sold cause an injury within the state. State long-arm statute validated PJ. a. Last Event Rule: Negligence cannot be separated from resulting injury, thus tort was actually committed in place of manufacturing; i.e. place of wrong. b. However, where cause of action arises from products use in the forum State, there are sufficient contacts. Party placed product into market and had expectation of benefits from sales in the State. c. Indicates relaxation of Shoe standards: An indirect contact is sufficient and reasonable, as long as it is assumed there is more than one transaction. d. Differs from World-Wide because the product there was a portable tort, placed in the forum State as a result of the consumers actions. Here, purposeful availment of the retailer resulted in the product and accidents location. e. Stream of Commerce Test: Where cause of action arises from alleged product defects, the use of products in the ordinary course of commerce is sufficient contact to justify requirement to defend there. f. Enjoy the Benefits Test: Where accompany receives benefits of the laws of a state by use of its products, it does not matter that purchase was made through middleman. 2. Asahi Metal v. Superior Court of CA: Mere awareness product will enter stream of commerce does not constitute purposeful availment. Must establish more than awareness of products entry. a. Asahis actions did not demonstrate they purposefully availed themselves in CA or anticipated sales there, and State did not have strong enough interest in case. b. OConnor Standard: Party must intend for product to be marketed in the forum State. Narrowed definition of purposeful availment to include directed entry into market. Established reasonableness consideration. Purposeful direction test. c. Brennan Dissent: Party must merely be aware product would be marketed in forum State. Argued for stream of commerce plus awareness theory that participant must be aware final product is marketed in State. 3. Nicastro v. McIntyre Machinery: Established standard of targeting the forum: Must purposefully avail itself privilege of business in state by sending good specifically, not just predicting goods will reach the State. a. A single sale isnt a factual basis for PJ. Actions, not expectations, empower a State to subject one to PJ. b. No majority opinion, no binding authority. Holding yet to be defined because case has not been interpreted. v. Internet Cases: 1. Zippo test: Website alone is not enough to support J, must place site on active/interactive/passive spectrum. 7

IV.

2. GMAC v. Raju: Nationwide contacts analysis. a. Purposeful availment of nationwide targeting validates PJ under F.R.C.P. Rule 4(k)(2). b. Claim arises under federal law, no PJ with other state, aggregate contacts with US, and is constitutionally valid. c. Application of Zippo. d. Implications for future infringement actions to be brought under federal law if they specifically target US. d. Reasonableness Standard: Five factors established/applied in Asahi. i. Burden on D. ii. States interest in adjudicating dispute. iii. Ps interest in convenient relief. iv. Interstate judicial efficiency. v. Shared interests of states in furthering substantive policies. vi. May also take into consideration a partys voluntary association with the forum State. Appearances: a. General: D enters action and defends claim on its merits > submits to J. b. Special: D appears to challenge J and dismiss case. c. Limited: D in quasi in rem case makes appearance limited to defense of attached property > J only extends to property (allowable only in some Js). Action in Rendering Court
Enters judgment for P. Courts usually dismiss action for lack of J; some may order proper service to cure J defect. Enters judgment for P. Usually, appellate court may review decision that J was proper; few may treat defense on the merits as waiver of J objection. Enters default J for P, unless lack of J is clear from complaint. Enters default judgment for P, unless lack of J clear.

Ds Response to Original Suit

D appears, defends on the merits, and loses. D makes special appearance or 12(b)(2) motion; court agrees that it lacks J. D makes special appearance of 12(b)(2) motion; court upholds J; D defaults. D loses on objection to J; defends action on merits; loses; appeals. D defaults, contests J in enforcing court. D defaults, denies liability on merits in the enforcing court.

Action in Enforcing Court

Must enforce the rendering courts judgment, even if D challenges its J because D has waived its objection. If original suit dismissed, no judgment to enforce. P may file new suit in court with J over D. Must enforce J because D already litigated the rendering courts J and lost. If J upheld on appeal, or objection waived by defense on merits, must enforce rendering courts judgment. Enforcing court decides whether rendering court had J; if it did not, refuses enforcement. If it did; must enforce judgment. Enforces the judgment; full faith and credit clause precludes reexamination of merits, settled by the default.

Property-Based I. In Rem: Physical presence of property that is the subject of the dispute. State has power to decide status of property located within its borders and the judgment is binding on all parties with an interest in the property. Limited to the propertys value. 8

II.

Quasi in Rem: Power comes from existence of property, but claim is not arising out of property. a. Quasi in Rem I: Related to the controversy. b. Quasi in Rem II: Unrelated to the dispute. Essentially using property as a hook for J. Recovery is limited to the value of the property because court can only assert J over that value. c. Pennoyer v. Neff: Must attach property prior to seeking judgment. Established power to adjudicate over non-residents through personal service or attachment of property within the state. d. Shaffer v. Heitner: In rem actions must meet minimum contacts and reasonableness standards set forth under Shoe. i. J invalid because attached shared were not related to the cause of action, and did not meet minimum contacts standards. Shareholders had not reason to expect being hailed into court in the forum State solely because situs of stocks were located there. ii. Overruled precedent of freezing assets per quasi in rem attachment in Pennoyer. State should have had a long-arm statute authorizing J. Established that absent Ds must have min. contacts.

Subject-Matter Jurisdiction
I. Article III a. Power to adjudicate all cases arising under federal law. b. 1331 and 1332: Does not utilize all power delineated to courts to adjudicate under Article III. Differences a. PJ is due process right; if D does not object he has waived rights to; SMJ is structural limit on courts ability to hear disputes. b. PJ is horizontal relationship between states and themselves. c. SMJ is vertical relationship between state and federal courts. d. No constitutional guidelines on arranging state court systems. e. Motions regarding lack of SMJ may be raised at any time, and PJ may only be raised preanswer. Federal Court Reasons a. State court may be prejudiced against other states or poorly interpret federal law. b. Federal judges are not accountable to voters as state judges are. c. Corporations can have uniformity.

II.

III.

Diversity Jurisdiction I. 28 U.S.C. 1332: Federal courts have J where parties are citizens of different state and amount-in-controversy exceeds $75,000 exclusive of costs and interests. a. Diversity Question: Article III, 2 requires minimal diversity, 1332 requires maximum diversity. i. Strawbridge v. Curtiss: Complete diversity is required. Not constitutional reading. ii. Rose v. Giamatti: Parties may not be collusively joined to manipulate J; their citizenship status will be ignored for purposes of establishing J unless they have a valid legal interest in the matter. 1. 1359: Prohibits parties collusively joined or made. iii. Not Permissible: alien v. alien, state citizen + alien v. alien, alien v. alien + state citizen, state citizen v. permanent resident alien from same state. 9

iv. Individuals: Domicile, or place of fixed, permanent residence and principal establishment to which you intend to return when absent; i.e. where one votes. v. Corporations: 1332(c)(1); place of incorporation and place of principal business, i.e. headquarters. 1. Nerve center (decisions) + muscle center (most amount of business) + total activities tests (nerve center, unless all activity is in one state). b. Jurisdictional Amount: Must exceed $75,000. Included punitive damages, but not litigation costs and interests. Ps actual recovery at end of litigation irrelevant. i. Legal Certainty Test: If D argues amount P claims, court must find that the claim is for less than $75,000 to a legal certainty before sending it down to state court. ii. Good Faith Assumption: If D does not contest, assume P has stated amount in good faith and will not conduct independent inquiry into amount. iii. Aggregation Rules: 1. 1 P can aggregate all claims against 1 D. 2. 2 Ps cannot aggregate all claims against 1 D unless they share a common and undivided legal interest. a. If 1 P meets the minimum, and the claims are being asserted against only 1 D, claims may be supplementally aggregated. 3. 1 P can aggregate 2 Ds only if they are legally joined and liable. a. If Ds are not legally joined, claims cannot be aggregated. b. If 1 Ds claim is more than $75,000 and the second is not, the second D may not be aggregated. 4. If all Ps have same claim against D, can aggregate is total is $5 million. Federal Question Jurisdiction I. Article I, 8: Authorizes Congress to establish tribunals; i.e. Supreme Court. II. Article II, 2: Judicial power shall extend to all cases arising under the Constitution, laws of U.S., and treaties made. III. 28 U.S.C. 1331: District courts have original J of all civil actions arising under Constitution, laws, of treaties of U.S. IV. Well-Pleaded Complaint Rule a. Louisville v. Mottley: Federal jurisdiction may not be based on claims not arising under federal law or with lack of diversity J based on Ps interpretation that their cause of action arises under federal law. b. Rule: A case arises under federal law only if it appears on the face of a well-pleaded complaint. Cannot anticipate a defense under federal law. i. P may seek declaratory judgments to bring claim under federal law, but D may not, as it is still a defense and not the source of the claim itself. c. Declaratory Judgment Act: Federal court may issue a declaration of rights and other legal relations to an interested party in a case of actual controversy within its J; D basically seeking judgment regarding their rights. No federal question J, still same principle as determine the actual controversy under the well-pleaded complaint. Supplemental Jurisdiction I. Preclusion Doctrine: If a claim has already been litigated, it cannot be done again, so must be sure original case is protected from collateral attack. II. Pendent Jurisdiction a. Pendent Claim J: Joining a state claim with a federal claim. i. UMW v. Gibbs: Brought state law claim in federal court for violation of 303 Labor Mgmt. Relations Act in conjunction with breach of contract. 10

III.

IV.

1. Permissible scope of state claim was limited by preemption doctrine. 2. Common Nucleus of Operative Fact: State claims may be brought in federal court if claims are appropriately related and substantial. Test: a. One claim that satisfies federal J (anchor). b. Independent basis for other claims. c. Common nucleus of operative fact. 3. Court exercises discretion in joining claims and considers judicial economy, fairness, and convenience. b. Pendant Party J: Joining a new party with a new claim. Ancillary Jurisdiction a. Ancillary: Adding claims after the complaint has been filed. i. Owen v. Kroger: D enjoins 3rd party who is not diverse from P and original Ds case was dismissed. P wants to remain in federal court under diversity; does not pass well-pleaded complaint rule. 1. Adding frustrates legislative intent on 1332. 2. Two Part Test: a. Is there authority under Article III, Gibbs test? b. Is there any legislations forbidding J? ii. Moore v. NY Cotton Exchange: P claimed D violated Sherman Anti-Trust Act; D counterclaimed for conversion. Federal claim dismissed. 1. Rule 13(a): Compulsory counterclaims must be brought or else party waives right to bring them at all. 2. Federal courts have enough J to decided upon the merits the legal sufficiency of the claims. 3. Would no have been permitted under 1367. Supplemental Jurisdiction Under 1367 a. 28 U.S.C. 1367: i. 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 3 of the US constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties (Gibbs codified). ii. In any civil action of which the district courts have original jurisdiction founded solely on section 1332, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by Ps against persons made parties under Rule 14, 19, 20, or 24 or over claims by persons proposed to be joined as Ps under Rule 19 of such rules, or seeking to intervene as Ps under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332 (implies allowing Rule 20 and 23 joinders by P). 1. Rule 14: P sues D, D impleads X (same state as P). No SJ over claims against X. 2. Rule 19: D asserts other party is necessary, but other party would destroy diversity, so D cannot assert SJ over them. 3. Rule 20: No SJ against parties permissively joined. 4. Rule 24: Claims by prospective parties who seek to intervene. 11

iii. Tolling of Statute of Limitations: If lawsuit was filed close to statute of limitations, and state claim was dismissed by federal court after tolling of statute, party has 30 days to bring claim into state court (1367(d)). b. Analysis: i. Response to Finley; effectively overruled it. ii. J over base claim must exist. Includes additional parties unless there is a statute that negates J. iii. Base claim J under 1332: No supplemental J for additional parties named by P; codifies Owen. iv. Federal discretion: May decline to exercise J if: 1. Claim raises a novel or complex issue of state law. 2. State claim predominates. 3. District Court has dismissed claims over which there was original J. 4. In exceptional circumstances there are other compelling reasons to decline. c. Allapattah: i. Majority adopts Textualist approach; dissent adopts legislative intent. Reviews contamination theory that adding parties that do not qualify for federal J will ruin the entire groups integrity. ii. 1367 authorizes supplemental J over claims of Ps in same Article III case where the other elements of J are present and at least one P satisfies the amount-incontroversy, even if those claims are for less than the amount-in-controversy. iii. 1367 purposefully omits Rule 20 and Rule 23 claims by P. Removal Jurisdiction I. 28 U.S.C. 1441: Opportunity for D to change Ps choice of forum. a. Transfer of case by D from state to federal court is only appropriate where case could have been heard in federal court originally. b. Complete diversity must still be applicable. c. D can remove to federal court unless the original state court claim (arising under state law) is filed in any Ds own state. Federal claims do not regard citizenship of parties. d. Cannot remove back to state court, and can remove to federal court only in the same district. e. Motions for removal are not considered waivers to objections for lack of PJ. f. Removal can only occur to the district court residing in the same district the original case was filed, even if venue is improper. Transfer allows the case to then be moved to an alternate district in the same or different state to the appropriate venue. g. 1446: Procedure for removal. i. Motion must be filed within 30 days of notice in state suit. ii. Ps motion to remand must be made within 30 days of removal. Comparative Jurisdiction I. Article II: If you are domiciled in a country, regardless of nationality, you are subject to its J and the rules applicable to national of that country. a. Only ever applicable basis for general J. II. Article V: Special J. May be subject to J in other countries not domiciles when matters relate to a contract for actions performed in that country (goods and services), matters relating to maintenance (where creditor lives), in tort cases (country of occurrence), in civil claims for 12

III.

damages based on criminal proceedings (in same J so long as they can adjudicate civil claims), and in disputes arising out of operation of some establishment in its location. a. Maintenance claims include divorce suits, so a divorcee can file for divorce in new domicile even if partner is domiciled elsewhere. b. Tort claims must be filed in the country they occurred. c. Suits against corporations must be brought in location of corporation, or in all of the corporations different locations. Article VI: Special J. Subject to J in courts that other Ds in case are domiciles if claims are closely connected and may be heard together, or as a third party in actions on warranty or guarantee in court of original proceedings. a. Even where a D has no contacts or connection with a court, if the other Ds do he must still be party to the case and cannot dismiss for lack of J

Venue
Choice of Law I. Choice of Law a. Three Applicable Rules: Different states may use different standards of determination. i. Apply law of place where accident occurred. ii. Apply law of state where P lives. iii. Apply law of state that has strongest interests in having its law applied. b. Procedural vs. Substantive Law i. State in which claim is brought has guidelines regarding procedurally whether they may apply their own procedural law (including statutes of limitations) or the procedural law of the other interested state. ii. Applying one states procedural law does not determine which substantive law may be applied. iii. Contract stipulations providing which rule of law to be applied in conflicts are not always binding depending on forum States principles; some states may choose not to uphold contractual obligations. c. Allstate v. Hague: Motorcycle accident in WI, across MN border. All parties WI residents. Decedent employed in MN and executor remarried and moved to MN. Decedent had three, separate, insurance policies. i. Controversy over choice of law arose due to substantive law variations; WI did now allow policy stacking, MN did. ii. MN standard of applying law of state with strongest interests and better rule of law according to Professor Leflars five principles: predictability of result, maintenance of interstate order, simplification of judicial task, advancement of forum govt.s interests, and application of better law. d. Constitutional Considerations i. Analysis considers presence or aggregation of contacts with involved parties and occurrence of transaction. 1. Insignificant contact signifies unconstitutional application of law under the Due Process Clause of the 14th Amendment. 2. Differs from minimum contacts analysis for PJ because choice of law focuses on P, versus Ds, contacts. 3. Less stringent standard because choice of law doesnt take into consideration arising out of principle. Venue I. Waiver: Rule 12(h) specifies that parties waive right to challenge venue if motion is not made before responding to the complaint. 13

II.

III.

IV.

28 U.S.C. 1391: Venue Generally a. Based on Diversity i. District in which any D lives, if all Ds live in same state. ii. District in which substantial part of the events or omission giving rise to the claim occurred; predominance test. iii. District in which any D is subject to PJ at time action commenced, if there are no others; wherever D may be served. b. Based on Federal Question i. District in which any D lives, if all Ds live in same state. ii. Predominance test. iii. District where D is found. c. Corporations: Corporation resides where they have PJ at time action commences. Select district with sufficient contacts to establish PJ if district were separate state. 28 U.S.C. 1404(a): Change of Venue a. Venue is proper, but transfer for three considerations: Conveniences of parties, convenience of witnesses, in the interest of justice. Transfer occurs after removal, if case originated in state court. b. Discretionary: May be transferred in any other district where action may have originally been brought. STRONG deference given to initial judges decision if transfer has already been granted or denied, and preference to Ps. (Piper). c. Van Dusen: If D initiated transfer, transferee court must follow choice-of-law rules that prevailed in transferor court. d. Ferens v. John Deere Co.: Ferens injured in PA by Ds machine. Brought contracts action in WI under diversity J, and tort suit in Miss. because court would apply PA substantive tort law (allowing better recovery) but Miss. procedural law (statute of lim. had expired under PA tort law). i. Court held that Miss. statute of limitations applies (Van Dusen). ii. Future implications: Cases will stay in inconvenient Js to apply better procedural laws in order for claims to proceed; i.e. transferor courts law. 1. Will discourage some cases from bringing suit because their options will be limited to potentially random or inconvenient Js. Focuses on convenience. 28 U.S.C. 1406(a): Improper Venue a. District court in which a case is filed in the wrong venue shall dismiss, or in the interest of justice, transfer the case to a district in which is could have been brought. i. Not discretionary: Case may not remain; must either transfer or dismiss. ii. When transferred, new court will apply its law.

Forum Non Conveniens I. Forum non Conveniens: If forum is not convenient, a court with J may use discretion to decline to exercise J if it concludes action would be tried more appropriately in another J. a. FNC Motions: D waives PJ and statute of limitations defenses by challenging venue for fnc. b. Considered Factors: i. Private interest: Party interests, availability of process for compulsory attendance, location of evidence, issues of ease, cost, and timeliness. ii. Public interest: Localized controversies to be decided at home, and having states apply their own law in their own courts because they understand it better. 14

c. Piper Aircraft v. Reyno: PA corp.s plane crashed in Scotland. Parts of plane manuf. by Hartzell (OH), plane operated by Scotland corp., and plane maintained by British Corp. P sued Hartzell and Scotland in CA, and third party in UK. Hartzell removed case to PA and moved to dismiss on fnc grounds. i. Court held that the fact that the alternative forum is less favorable to P should not be given conclusive or substantive weight in interpreting fnc. Granted dismissal. ii. Application of Gilbert balancing test: Balance between Ds convenience and their contacts with the State. 1. Comparative law analysis to determine choice of law inefficient because court wasnt familiar enough with Scottish law. Also, concerns of inconsistency of verdicts.

Erie Doctrine
Pre-Erie I. 28 U.S.C. 1652: Rules Decision Act a. Laws of the states, except where the constitution of treaties of the US or Acts of Congress otherwise require of provide, shall be regarded as rules of decision in civil actions in the court of the US, in cases where they apply. b. Contains many ambiguities. Swift v. Tyson: D (NY) signed bill of exchange in payment for land in ME. Sellers of land assigned bill to P (ME) in satisfactions of prior debt. Later found seller didnt own land, and D refused to P on grounds that fraud nullified note. a. Held: Common law decisions of the state courts did not generally constitute the law of the several states under 1652 for the purposes of the Rules Decision Act. Only state law federal courts sitting in diversity needed to apply were statutes or judge-made lawinterpreting statutes. b. Results: Two different sets of laws for same incident depending on what forum adjudicated, law became fragmented and not universalized, Ps were allowed forumshopping which encouraged discrimination against Ds, and Ps created diversity to avail themselves of federal law.

II.

Erie Doctrine I. Erie R. Co. v. Tompkins: D sues P for negligent operation of train in S.D.N.Y. under diversity seeking to apply Swift rule of federal common law. P sought to apply PA state law, under which travelers on parallel paths like D were trespassers and to which P owed no duty. Lower courts applied federal law, under which P owed duty or ordinary care to travelers on parallel paths. a. Rule: Swift unconstitutional. Federal courts are to apply substantive law of the states in which they sit. Reinterpreted Rules and Decision Act to read laws of several states to mean states common law. Eliminated federal common law. b. Swift Problems: Caused forum shopping, resulted from incorrect statutory interpretation, created discrimination against citizens of states by non-citizens, never created intended uniformity (between state and federal courts), invalidated States rights to create substantive common law, and violated the 10th Amendment Necessary and Proper Clause for limits on federal power (i.e. tort law). c. Twin Aims of Erie: Discourages forum shopping and inequitable administration of the law (different results between state and federal courts). Does not provide a test for distinguishing which rules were subject. II. Outcome Determinative Test: Guaranty Trust v. York. 15

III.

a. Issue: D filed NY federal suit arising out of transactions with P. Conflict of laws under which NY state law barred the claim because the statute of limitations had tolled, and federal law allowed doctrine of laches to override statutes of limitation on claims in equity. b. Rule: In federal cases sitting in diversity, outcome of litigation in federal court should be substantially the same as if it were brought in state court, so far as legal rules determine the outcome of litigation. i. Goal to avoid reaching different results in federal and state courts. ii. Frankfurter: Considered statute of limitations rule in Guaranty substantive. c. Outcome Determinative Test: Relevant inquiry is not whether matter is procedural or substantive, but whether applying federal law would substantially alter the outcome of the case, in which case state law must be applied. Balance of Interests Test: Byrd v. Blue Ridge Rural Electric. a. Issue: P sued for damages from injuries sustained installing power lines; D raised affirmative defense that Ps barred from bringing claim under Workmens Compensation Act. Conflict of laws arising from South Carolina state law stating that a judge determine questions of fact, and federal law stating that state law isnt binding and that questions of fact should be heard by juries. i. 7th Amendment: Not binding on state courts, but overriding federal interest in right to trial by jury. Constitutional to apply outcome determinative federal rules in lieu of state law when there is a strong countervailing federal interest. b. Rule: No longer automatic application of state rule if federal rule is outcome determinative; must balance state and federal interests, or countervailing considerations. i. State decisions requiring judge as fact finder furnish no reasons for selecting the judge over a jury to decide a single affirmative defense in negligence actions. c. Balancing Test: When a rule is not bound up with the definition of the rights and obligations of the parties, state law cannot alter the essential character or function of a federal court. UNGUIDED ERIE TEST York & Byrd 1. Obviously Substantive

No

Yes

2. Outcome Determinative

Yes 3. Affirmative Countervailing Considerations Federal

No

Yes Balance interests: Federal interest in Federal practice

No State 16

State interest in State practice Hanna Test I. Rules Enabling Act: a. 2072: Rules of Procedure and Evidence & Power to Prescribe: i. Supreme Court has power to prescribe general rules of practice and procedure and rules of evidence for cases in district courts. ii. Rules shall no abridge, enlarge or modify any substantive rights. Laws in conflict shall have no further force or effect. iii. Rules may define when a district court ruling is final for purposes of appeal. iv. Constitutional under Article I 8 (Necessary and Proper Clause) and Article III 12 (limits Congress power to vest in inferior courts). II. Hanna v. Plumer: MA law required personal service on executors while F.R.C.P. Rule 4 allowed substituted service. a. Holding: When there is a conflict between federal and state law, if the federal law is constitutionally valid, then the federal law trumps the state law pursuant to the Supremacy Clause. i. Rule (4)(d)(1): Designed to control service of process in diversity actions, and neither exceeded Rules Enabling Act nor constitutional bounds, and thus is standard against which DC should have measured accuracy of service. b. Rule #1: Twin aims of Erie test must determine whether a rule is really procedural, and outcome determinative test thus cannot be read without interference to the twin aim of the discouragement of forum shopping and avoidance of inequitable administration of laws. i. Outcome determinativeness should be focused on at outset of litigation. ii. Importance of state rule is relevant to the point of whether it changes the character of litigation or if failure to enforce unfairly discriminates citizens of the forum state. iii. Lack of test in Hanna because application of state rule would not have barred recovery, it would only have changed the way process was served. c. Rule #2: Rules Enabling Act for non-judge-made rules states that F.R.C.P. would rarely be held unconstitutional. If there is a congressional rule that is relevant, determine its validity, but not through Erie. i. Federal statute is valid where it is procedural. ii. F.R.C.P. is valid where it follows 2072. As long as it is procedural, substantive effects do not matter. d. Hanna Changes: i. Is rule governs procedure, no need to balance federal and state interests. ii. Outcome determinative pre-action: Asks whether rule will cause P to file in one court over another. DETERMINE THE CONFLICT FIRST:
1. Is

there an FRCP, Statute, or Constitutional rule on point?

Yes 2. Direct Conflict

No UNGUIDED ERIE 17

Yes 3. Arguably Procedural (Rules Enabling Act)

No: Not governed by F.R.C.P. UNGUIDED ERIE

Yes No Federal State III. Gasperini v. Center of Humanities: P sold slide transparencies of photos taken on trips to D for educational videotape and was supposed to receive originals after production, but D claims they lost them. a. Issue: Conflict of laws regarding determination of excessive awards; state law uses CPLR 5501 materially deviates standard and appellate judge determines de novo, and federal law uses 7th Amendment shocks the conscience and determined by trial judges discretion and appellate courts abuse of discretion standard. b. Holding: NYs dominant interest can be respected without disrupting federal system once it is recognized that the federal district court is capable of applying the states materially deviates standard, subject to the review of the appellate divisions discretion standard. c. Balancing: i. State interest: NY found shock the conscience test insufficient, so changed it for more careful appellate scrutiny and to promote greater stability in torts and fairness for other Ds in the state. ii. Federal interest: Reexamination Clause doesnt inhibit the authority of the trial judge to grant new trial for any of the reasons trials are generally granted. Federal judge has discretion to grant new trial is verdict appears to be against the weight of evidence. 1. Construed federal rule as narrowly as possible to allow states interest to be represented. Federal Common Law I. Federal Common Law: a. Continues to be allowed post-Erie for exclusively federal causes of action. b. Broad, vague federal statutes with body of case law developed around it. i. Included originally state law claims with the US as a party; i.e. contracts between third parties and US have no governing federal statutes, but cannot have state law applied to the US govt. II. Boyle v. United Technologies Corp.: Copilot drowned in helicopter crash because escape hatch opened outward instead of inward. Brought in federal district court under diversity. a. Issue: Whether military contractor defense is applicable federal law, and whether 2680 applies (authorization for claims against US for improperly applied or failure to apply discretionary functions). b. Holding: Federal policy overrides state law in circumstances that present a significant conflict or uniquely federal interests; i.e. military contractor defense. c. Rule: Contractors cannot be liable for defective design because it satisfies the militarys requirements. Three conditions: i. US approved reasonable precise specifications. ii. Equipment conformed to those specifications. 18

iii. Supplier warned US about the dangers in the use of the equipment that were known to the supplier but not to the US. d. Arguments for Federal Common Law: i. Scalia: Areas involving uniquely federal interests. Federal law reduces government costs. Actively seeks protection for military contractors. ii. Brennan: If suit is between to private parties, there is a federal interest in not extending immunity. Federal common law interferes with congressional power. Immunity should not extend to contractors.

Pleadings
Complaint I. Rule 3: Action commences with filing of complaint with court. II. Rule 7: Pleadings permitted; complaints and answers. III. Rule 8: Rules of Pleading. a. Claims for Relief: Pleading that states a claim for relief must contain a short statement of grounds for J (unless court already has J), statement of the claim showing that P is entitled to relief, and a demand for relief sought. i. Purpose: Sets forth partys factual and legal contentions and helps to focus discovery and trial; must allege all elements of the claim, and provides D with reasons they are being brought to court, illustrating the scope of the claim. ii. Forms: Form 7+ characterizes various forms for different categories of complaints. iii. Rule 10: Names of parties, title, and each claim of defense in numbered paragraphs. iv. Causation: Causation is necessary to establish all of the elements of a claim, otherwise no connection can be made between the incident and the fault of D. v. Conley v. Gibson: Held dismissal is appropriate only when P can prove no set of facts in support of his claim that would entitle him to relief, along with Rule 8(a) which only requires a short and plain statement of the claim. b. Concise and Direct: No technical forms of pleading or motions are required. Parties may set forth two+ statements of claims or defense alternatively or hypothetically. When two or more statements are made in the alternative, and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. Separate claims or defenses may also be made regardless of consistency. IV. Rule 9(b): Special matters heightened pleading requirement. a. Allegations for fraud or mistake must state with particularity the circumstances constituting fraud or mistake. V. Rule 11: Representations to the court. a. Signature: Pleaders attorney must sign pleading. b. Representations: Pleadings, motions, etc. must certify to the best of the persons knowledge, information, and belief, formed after a reasonable inquiry under the circumstances that: i. Case is not being pursued for any improper purpose. ii. Claims, defense, and legal contentions are warranted by existing law or nonfrivolous argument. iii. Factual contentions have evidentiary support or will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. 19

VI.

VII.

iv. Denials of factual contentions are warranted by the evidence or are reasonably based on belief for lack of information. c. Sanctions: If after notice and reasonable opportunity to respond, court determines that 11(b) has been violated, court may impose an appropriate sanction on the attorneys, firms, or parties that have violated it or are responsible for the violation. i. Discretionary: May include legal fees, non-monetary sanctions, striking the pleading. d. Garr v. US Healthcare Inc.: Two attorneys submitted same complaint as initiating attorney; review regarding whether district court abused its discretion in determining whether the two attorneys violated Rule 11 principles. i. Issue: Whether Levin and Sklar failed to look into the claim reasonably by simply copying Malones complaint, and whether Malone made a false claim but selecting Greenfield as class representative without permission. ii. Holding: Rule 11 requires signing attorney to have made a reasonable inquiry personally, and district court, under deferential abuse of discretion standard, properly determined the required sanctions. iii. Sanctions: Attorneys must pay for Ds litigation costs, dismiss complaints, and attend disciplinary hearing. Rule 11 states that severity of sanction is limited to comparable conduct, but judge still has some discretion. Bell Atlantic v. Twombly: Complaint alleges ILECs conspired to restrain trade by engaging in parallel conduct and making agreements between themselves to restrain from competing with one another. a. Issue: Whether a 1 Sherman Anti-Trust Act claim can survive a motion to dismiss when it alleges that companies engaged in parallel conduct absent to some factual context suggesting agreement, as distinct from identical, independent action? i. Ps hoped to gain evidentiary support to allegations during discovery from emails or documents indicating some agreement. b. Holding: Overruled Conley no set of facts standard. Doesnt quite qualify for Rule 9(b) but must contain enough facts to state a claim to relief that is plausible on its face and crosses the line from conceivable to plausible; i.e. plausibility rule. Ashcroft v. Iqbal: Arab Muslim suing Attorney General and Director of FBI among others for violating his constitutional rights under the 1st and 5th Amendment. No federal statute allowing private rights of action against govt., but through development of federal common law, a. Bivens Action: Similar to 1983, allowing private rights of action against states. Court recognized implied private action for damages against federal officers alleged to have violated a citizens constitutional rights. b. Issue: Whether pleading contained factual matter, that if taken as true, state a claim that deprived D of constitutional rights? c. Holding: Used flexible plausibility standard from Twombly, and determined case did not constitute a Rule 9(b) context requiring amplification of pleading standards a la Twombly. Ds had qualified immunity resulting in lack of liability. i. Supervisor Liability vs. Respondeat Superior: Supervisors may be liable for subordinates discriminatory behavior just for knowing that it exists and not taking any action against it; respondeat requires no level of knowledge on part of supervisor and is absolute. Knowledge does not equate liability where there is qualified immunity. ii. Pleading must have proven intent to discriminate, but for causation. 20

Answer

Rule 8(b): Defenses, Admission, & Denials. a. Admission: Take claim as established, no need to provide evidence. b. Denial: Must provide evidence in assertion of claim. i. Lack of Knowledge or Information: Must prepare to prove by gathering evidence in support of claim. 1. Matter of access and not time or energy devoted to researching the factual matter of the claim. ii. Averment: Failure to deny results in admittance of claims not denied or addressed in responsive pleadings. iii. No need to respond to allegations in the complaint that are unrelated to the base claim(s). c. Affirmative Defenses: Not exhaustive list. Exist as roundabout ways to deny the charges by affirming an action that implies one could not have acted as claimed; i.e. denying negligence by stating one acted with due care as a reasonable person. II. Rule 12: Defenses and Objections. a. Timeliness: D must answer within 21 days of being served with summons and complaint, of within 60 days after request for waiver was sent. b. Motions: All defenses to claims must be asserted in responsive pleading as required, except for defenses by motion: i. Lack of SMJ, lack of PJ, improper venue, insufficient process, insufficient service, failure to state a claim upon which relief can be granted, failure to join a party under Rule 19. Amendments I. Rule 15: Amendments. a. Before Trial: Party may amend pleading once as a matter of course within 21 days of serving, or within 21 days after service of a responsive pleading or Rule 12 motion. Party may also amend with opposing partys written consent or the courts leave. i. Responses to amended pleadings must be made within time to respond to original pleading or within 14 days after service of amended pleading; whichever is later. ii. Service of responsive pleading cuts off right to amend. Amendments may be denied when it seems they are being made in bad faith, with undue delay, or with undue prejudice to other party. b. During and After Trial: Court may permit amendments if a party objects that evidence is not within issues raised. When an issue not raised by pleadings is tried by implied consent, it must be treated as if raised in pleadings, and a party may move at any time, even after judgment, to amend pleadings to conform to the evidence. Failure to amend does not affect the result of the trial of that issue. c. Relation Back: Amendments relate back to date of original pleading when: i. Law that provides applicable statute of limitations allows relation back. Allows avoidance of statute of limitations because original claims were made within period. ii. Amendment asserts a claim or defense that arose out of conduct, transaction, or occurrence in original pleading. iii. Amendment changes the party against whom claim is asserted, and within the period under Rule 4(m) (120 days from filing) such that party received notice of action that it will not be prejudiced in defending on the merits, and knew or should have known that the action would have been brought against it but for a mistake in partys identity. 21

I.

d. Supplemental: Court may permit party to serve supplemental pleadings out of any transaction, occurrence, or event that happened after date of pleading to be supplemented, even if original pleading is defective.

Discovery
Procedure & Scope I. Discovery: Rule 26 a. 26(a)(1)(A) Initial Disclosures: Without receiving a discovery request parties must provide with one another the names and contact information of an individuals with likely discoverable information and the subjects of that information; a copy of all documents, electronically stores information, and tangible items that are in a partys possession that may be used to support its claims or defenses (unless the use is solely for impeachment); computation of damages; and any insurance agreements that may be used for indemnification. Parties are not excused from disclosing if the other party hasnt yet disclosed or if they havent done investigation yet. b. 26(a)(1)(C) Time: Parties must make initial disclosures within 14 days after the Rule 26(f) conference (unless otherwise stipulated by the court). Parties served or joined after the Rule 26(f) conference must make initial disclosures within 30 days. i. Rule 26(f): Parties must make discovery plans at least 21 days before the scheduling conference. Scheduling conferences are due within 120 days of being served, or within 90 days of D making an appearance. c. 26(a)(2) and (3) Witnesses: Parties must also disclose the identities of any witnesses or expert witnesses they may use. d. 26(b)(1) Scope: Parties may obtain any nonprivileged matter relevant to a partys claims or defenses. Court may also order discovery of any materials relevant to the subject matter involved in the action. e. 26(b)(1)(C) Limitations: Parties may not provide discovery of electronically stored information that are reasonably inaccessible due to burden or cost. f. 26(c) Protective Orders: Protective orders may be issued to protect certain information that may fall under 26(b) or may protect parties from annoyance, embarrassment, oppression, or undue burden or expense. Orders may or may not extend to trial proceedings depending on the information and the judges rules. i. Includes: Forbidding the discovery of those items/information, specifying terms and times for discovery, prescribing a method, forbidding inquiry, designating parties to be present during, requiring that deposition be sealed, requiring trade secrets to be protected, and requiring that parties simultaneously file in sealed envelopes. II. Adversarial Discovery a. Interrogatories Rule 33(a): Responses must be served within 30 days. Interrogatories may only be issued to the involved parties, with 25 questions total. i. Rule 33(b): Questions must be answered separately and fully under oath unless party objects to them, and objections may be made only for good cause. ii. Advantages: Parties are under an obligation to make reasonable investigations to determine the answers. Only may be served on parties to the litigation. b. Depositions: Examinations under oath. Party serves subpoenas to individuals to elicit participation via notice of depositions. Parties to the case may not be subject to deposition. i. Advantages: Easier to read peoples intentions in person. 22

c. Request for Production Rule 34(a): Inspections, copies of documents, or other tangible evidence. Obtained by subpoenas. Documents must be kept in the same method of organization and labeling as they are normally stored, and must be produced in the form or forms they are stored in. i. Rule 34(b)(2)(E): Electronically stored documents. d. Mental and Physical Examinations Rule 35: Used in physical injury cases. Requires a court order for good cause shown. Only form of discovery parties may reasonably decline to produce. e. Requests for Admission: Parties must admit or deny the truth of any legal or factual issues. Similar to pleadings but with very specific questions. Privileges I. Attorney-Client Privilege: Not effectuated by a Federal Rule; is a common law development. Offers absolute protection and encourages clients to divulge all relevant information to afford the most complete and accurate protection and representation by their attorneys. Privilege is waived once party in control of the communication discloses the information to an outside third party. a. Elements: i. Asserted holder of the privilege must be a client. ii. The person to whom the communication was made must be a member of the bar of the court or the attorneys subordinate, and is acting in their role as attorney in connection with receiving the communication. iii. The communication must relate to a fact that the attorney was informed of by his client, without the presence of strangers, for the purposes of securing primarily an opinion on law or assistance in some legal proceeding, and not for the purpose of committing a crime or tort. iv. The privilege must have been claimed and not waived by the client. b. Upjohn v. United States: D thought there was fraud involved in the payments one of its subsidiaries was making to some government agencies. Sent out questionnaires to employees of the subsidiaries. IRS became involved and ordered that the questionnaires be disclosed. i. Holding: Information between corporate employees (including lower employees) is protected by attorney-client privilege. ii. Rule: Control group test. Lower level employees in a corporation constitute clients in the attorney-client privilege respect that protects communication when they re in possession of information that cannot be obtained by higher-level corporate employees. 1. Generally not extended to former employees, although work product privilege may be used. II. Work-Product Privilege Rule 26(b)(3) and (5): Designed to protect the work, mental impressions, and prepared materials by attorneys in anticipation of litigation. Extends the protection afforded by attorney-client privilege because it does not have to be claimed by an attorney; it can be claimed by anyone acting on behalf of the party. a. 26(b)(3)(B): If the court orders discovery on those materials, it must protect against disclosure of the mental impressions, conclusions, theories, etc. of the partys attorneys. b. 26(b)(3)(A)(ii): Party must show substantial need for the materials to prepares its case, and that they cannot without undue hardship obtain the substantial equivalent themselves in order to have discovery on privileged information.

23

c. 26(b)(5)(B): If a party produces information that is subject to privilege, the party must notify the receiving party and they must return the information or take reasonable steps to retrieve it, and may not use or disclose it. d. Hickman v. Taylor: P filing suit against tug owners. Attempting to recover numerous interrogatories collected by D in previous related cases, including information about whether D possessed statements of crewmembers taken in connection with the accident. D declined to produce the information claiming work product privilege. i. Holding: Materials were protected by work product immunity. The burden must rest on the P to establish adequate reasons to justify production through subpoenas/court orders, and P made no showing here. ii. Immunity Considerations: Whether they are seeking documents or tangible information; if it was prepared in anticipation of litigation or trial by the other party; if there is substantial need; whether a party able to retrieve info by other means; and whether it involves the mental impressions or legal theories of an attorney. Sanctions I. Sanctions Rule 37: Failure to Disclose or Cooperate in Discovery a. 37(a): Motion for Order Compelling Disclosure of Discovery. Parties that are noncompliant may be compelled to disclose or produce if movant has mad a good faith effort to confer the information prior to taking court action. i. If a party needs to make motions to compel to retrieve necessary info after reasonable attempts to discover, the adverse party must pay the legal fees obtained in acquiring the info. b. 37(b): Failure to comply with court orders. Failures to compel may result in being held in contempt of the court or may result in further court orders including introducing certain matters as evidence, striking pleadings, staying further proceedings, dismissing the action, rendering a default judgment, or contempt of the court. c. 37(c): Failure to disclose, supplement an earlier response, or admit. Parties that fail to provide information or identify witnesses may not be allowed to use that information as evidence and the court may order payment of the opposing partys expenses or other sanctions. d. 37(d): Failure to attend depositions, answer interrogatories, or respond to inspection requests. Directly imposes sanctions without first issuing orders to compel. Courts may order sanctions for all of the aforementioned. Parties may not fail to answer just because the information was objectionable unless they had a pending protective order. i. 37(d)(3): Types of sanctions include those mentioned in 37(b). ii. Failure to comply with physical and mental examinations may be subject to sanctions, except for contempt of court because there is a privacy entitlement to ones physical and mental state. e. 37(e): Failure to provide electronically stored information. Courts may not impose sanctions on parties failing to provide electronic info lost as a result of routine, good faith operation of electronic info systems. i. Spoliation of evidence allows for independent claims for intentional destruction of evidence. f. Rule 501 Federal Rules of Evidence: State privilege of information applies in federal court only when there is no Congressional statute or law enacted.

24

i. Example: Applies to journalists; if there is no state or federal common law principles for journalist privilege, they could be held in civil contempt for failure to divulge.

Dispositive Motions
Summary Judgment I. Rule 12 Motions: Pre-trial and pre-discovery motions. a. 12(b)(6): Demurrers. Motion for failure to state a claim upon which relief can be granted. Doesnt consider the evidence involved, only evaluates the face of the complaint. Dismissal is without prejudice. b. 12(c): Motion for judgment on the pleadings. II. Summary Judgment: Post-discovery and pre-trial motion. a. Rule 56(a): Parties may move for summary judgment on each or part of each claim or defense. Court will grant summary judgment if movant shows that there is no genuine issue of material fact and the movant is entitled to JMOL. b. 56(b): Parties may file for summary judgment within 30 days after the close of discovery. c. 56(c): MOVANT must support assertions that facts cannot be genuinely disputed by showing materials in the record (all discovery materials) or showing that an adverse party could not produce evidence to support the fact that may be disputed. Views moving partys evidence in light most favorable to them. i. Genuine: A reasonable jury could resolve it either way. ii. Material Fact: Fact that will affect the outcome of the case. 1. Disputes raised in the answer are not affirmative evidence of issues of material fact. d. 56(d): If nonmovant shows by affidavit or declaration that it cannot present facts essential to justify its opposition to SJ, court may defer considering the motion or deny it, allow time to obtain discovery, or issue an order. e. 56(e): If a party fails to properly support an assertion as required by 56(c), court may give them an opportunity to address the fact, consider the fact undisputed, grant SJ if the movant is entitled to it, or issue an order. i. Must be based on personal knowledge, must be admissible, adverse partys evidence must demonstrate material issues of fact, and the appropriate standard of proof must be used. f. Celotex v. Catrett: Wrongful death by asbestos. D moved for summary judgment because lacked evidence of proximate cause. Dispute over whether moving partys role in satisfying burden of proof. i. Holding: Burden on moving party may be relieved by showing that there is an absence of evidence supporting nonmoving party. No need to present affidavits, etc. negating the nonmoving partys claim. Rule 56(c) does not explicitly require the use of affidavits in motions for summary judgments, and may be made without. ii. Dissent: Ps motion for SJ presents credible evidence that leads to a directed verdict (shifting burden to D to show issues of fact). Ds motion provides affirmative evidence that negates Ps claims or demonstrates Ps evidence is insufficient by showing an absence of evidence. Judgment as a Matter of Law I. Judgment as a Matter of Law (JMOL): Post-trial and pre-jury motion. 25

II.

III.

a. Rule 50(a): If a party has been heard on an issue during a jury trial and court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issues, the court may resolve the issue against the party or grant a motion for JMOL against the party on a claim or defense. i. Motions for JMOL may be made any time before the case is submitted to the jury. ii. Evidence viewed in light most favorable to non-moving party. b. 50(b): If motion is initially denied, parties may renew motion for JMOL within 10, or within 28 days of jury verdict for new trial under Rule 59. Court may either stay verdict, approve new trial, or direct verdict. c. Questions: Whether the evidence is so overwhelming that jury could not find another way or party has not provided enough evidence for themselves. Strictly based on the strength of the facts. d. Jury: Insulates from jury bias. Jury may not nullify law in civil cases; jury verdicts have no precedential power. e. Dixon v. Wal-Mart: Negligence claim against Wal-Mart for slip and fall; P needed to prove constructive knowledge of dangerous condition. Contention was highly factual but ruling depends on whether the evidence was sufficient as a matter of law to meet burden. i. Holding: Wal-Mart was entitled to JMOL because P had not established a sufficient evidentiary basis on which a jury could reasonably find. Motion for a New Trial: a. Rule 59(a): Court may grant motions for a new trial on some or all issues after a jury or non-jury trial for any reasons available. Court, in non-jury trials, may take additional testimony, amend findings of fact, and direct judgments. i. Verdict must have been against the clear weight of evidence. ii. Always brought together with motions for JMOL. iii. To overturn an order for a new trial, must use abuse of discretion standard. b. 59(b): Motions must be made within 28 days of final judgments. c. Purposes: Where judge error affected outcome, verdict is against evidence, damages are excessive, jury verdict incoherent or jury was influenced, or juror misconduct. d. Rule 51: Parties may submit jury instructions and have opportunity to review and object to instructions prior to delivery to jury. e. Rule 49(a): Special verdict in which jury writes answer in specific, factual answers. Remittitur: Conditional new trial. a. Remittitur: Uses threat of a new trial to coerce P into accepting a lower award than issued by the jury. Conditional denial of new trial depends on Ps acceptance of smaller damages. b. Williams v. Morris: Heavy smoker alleges negligence and deceit against Marlboro. Jury awards compensatory damages of $821,000 along with $79.5 million in punitive damages. i. Holding: Constitution imposes certain limits to awarding grossly excessive amounts of punitive damages and the award amounted to taking property away from D without due process.

Equitable Remedies
Injunctive Relief I. Provisional Injunctive Relief: Used for claims in which a significant delay in obtaining equitable relief will translate into significant additional injury. Preserves Ps ability to secure effective remedies while protecting Ds from wrongful interference. 26

a. Temporary Restraining Order (TRO): Affords emergency relief to Ps in immediate danger or suffering some form of irreparable harm. Preserves status quo until court may consider whether to issue a preliminary injunction with the lawsuit. Prohibitory in nature. i. Procedure: Request is filed simultaneously with complaint. Not subject to appellate review. ii. Rule 65(b): May be obtained ex parte if shown that immediate and irreparable injury, loss, or damage will result to movant before the trial. iii. Timing: TROs expire within 14 days of issuance. May be renewed once more. b. Preliminary Injunction: Rule 65(a): Spares P potential injury during the pendency of the suit. Prohibitory or may impose affirmative obligations to spare P of injury. May never be issued ex parte; party must receive notice and opportunity to be heard. Requirements P must demonstrate to receive: i. Likelihood of success on the merits: Required so that D is not wrongfully enjoined and also subsequently harmed. P must generally show some likelihood or a substantial probability of facts entitling them to relief. ii. Threat of irreparable injury: P must demonstrate they will suffer irreparable injury if request is not granted. Injury suffered during pendency of trial must not be able to be remedied by monetary damages to allow preliminary relief. iii. Balance of hardships: How the irreparable injury and likelihood of success interact with one another. Must analyze one in light of the other to minimize damage to D also; sliding scale factors and public interest. iv. Equitable remedy at law: May only receive equitable relief when there is no other adequate remedy under equity. No amount of damages will make party whole because damages are too difficult to quantify. 1. If a D is wrongfully enjoined, they may recover from P the damages suffered as a consequence of the error. 2. Ps remedy is limited by the requirement that P provide a security bond in provisional relief proceedings for payment of any damages in case of wrongful injunction, and the amount is at discretion of court. 3. D may not obtain damages in excess unless P acted in bad faith. D is also only entitled to damages before the trial court (appeals dont matter). v. 28 U.S.C. 1292(a)(1): Only preliminary injunctions are appealable as interlocutory appeals, despite not being final orders. Court applies abuse of discretion standard. c. Abbott Labs v. Mead Johnson Co.: 2 competitors in OES market. P sues for trade rights violations and seeks preliminary injunction to enjoin them from competing with their toosimilar product. Sought continued injunction after trial as remedy. i. Holding: Established four-factor test for determining validity of preliminary injunctions. Question of federal law not articulated by Rule 65.

Parties
Joinder of Claims I. Counterclaims and Crossclaims a. Counterclaims: i. Rule 13(a): Compulsory counterclaims. Pleadings must state as counterclaims, at time of service, any claims that arise out of the transaction or occurrence of the same subject matter as the opposing partys claim, or does not require adding another party over whom the court doesnt have J. 27

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1. Exceptions: If claim was subject of another pending action at commencement or if the opposing party sued on its claim by attachment or another process that doesnt establish PJ. 2. If a compulsory counterclaim is not raised before the action goes to judgment, the claim is barred from being brought. ii. 13(b): Permissive counterclaims. Pleadings may state any counterclaims that are not compulsory. b. Crossclaims: i. 13(g): Pleadings may state crossclaims by one party against a coparty if the claim arises out of the transaction or occurrence of the same subject matter as the original, or if the claim relates to any property that is the subject matter of the original. Crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for a claim asserted in an action against the crossclaimant. Permissive only. ii. 13(i): Courts have discretion to sever crossclaims for trial under Rule 42(b) and order separate trials to avoid prejudice and promote convenience and judicial economy. Joinder of Claims: a. Rule 18(a): Party asserting claim, counterclaim, crossclaim, or 3rd party claims may join as independent or alternative claims, as many as it has against an opposing party. i. Permissive and not compulsory; no transactional relationship between the claims is required to join them. b. 18(b): Party may join two claims even though one of them is contingent on the disposition of the other, but court may grant relief only in accordance with the parties relative substantive rights. Grumman v. Data General: D sued P for copyright infringement in Mass. federal. P sued D for antitrust violations in CA state. D then moved to dismiss because the claims were compulsory counterclaims under Rule 13(a). a. Holding: Concerned with efficiency, resources allocation (judicial economy), and fairness. Standard for determining if compulsory requires logical relationship between the two claims. Action dismissed without prejudice so claim could be brought as compulsory counterclaim.

Joinder of Parties I. Permissive Joinder a. Rule 20: Permissive joinder of parties. Consists of transactional test and common question. i. Plaintiffs: Persons may join in one action as Ps if they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series, OR if any question of law or fact common to all Ps will arise in the action. ii. Defendants: Persons may be joined in one action as Ds if any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series AND if any question of law or fact common to all Ds will arise in the action. iii. Separate Trials: Court may make orders for separate trials if it will prevent a party from being embarrassed, delayed, or put to expense by inclusion of a party whom they assert no claim and asserts no claim against them. Discretionary function. 28

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b. Guedry v. Marino: Many Ps were permitted to join related claims under Rule 20(a)(1), and Rule 42(a) and (b) permitted the actions to be consolidated for efficiency and to avoid prejudice. i. Multidistrict litigation: Various people in different Js with the same claim may be consolidated for pre-trial purposes; i.e. expediting discovery practices. Compulsory Joinder a. Rule 19: Required joinder of parties. i. Required Parties: Persons subject to service of process and whose joinder will not deprive the court of SMJ must be joined if in that persons absence the court cannot accord complete relief among existing parties, that person claims an interest relating to the subject of the action and disposing of the action in that persons absence may impede their ability to protect the interest or leave an existing party subject to risk of multiple or inconsistent obligations because of that interest. ii. Court Order: If person has not been joined as required, court must order that person be made a party. Unwilling parties may join as Ds or involuntary Ps. iii. Venue: If a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party. iv. When Not Feasible: If a person who is required to be joined cannot be joined, court must determine whether in equity and good conscience the action should proceed among existing parties or be dismissed. Factors: 1. Prejudice: Extent to which a judgment rendered in the persons absence might prejudice that person or existing parties. 2. Mitigation in judgment: Extent to which any prejudice could be lessened or avoided by protective provisions in the judgment, shaping the relief, or other measures. 3. Adequacy of judgment: Whether a judgment rendered in the persons absence would be adequate. 4. Adequate remedy: Whether the P would have an adequate remedy if the action were dismissed for non-joinder. b. Republic of Philippines v. Pimental: Interpleader action claiming civil rights violations by Filipino government, who held investments in Merrill Lynch that aggrieved parties sought entitlement to. i. Holding: Republic of Philippines and Commission were parties to be joined if feasible, but were not able to be joined because of qualified immunity. Thus without the two necessary parties, the action could not go forward and must be dismissed. Ps were unable to recover losses. Impleader: Process by which D brings into an action a 3rd party who is or may be liable to D for all or part of a claim asserted by P against D. Used in indemnification and contribution actions. May not be invoked by a D asserting that P has sued the wrong D. Impleader claim must be within the SMJ and PJ of the court, but will NOT affect venue or diversity (may be from any state). a. Rule 14: Third parties. i. 14(a): When defending parties may bring in 3rd parties. D may, as a 3rd party P, serve a nonparty who is or may be liable for the claim against D. Must obtain courts leave within 14 days after serving original answer. 1. Claims and defenses: 3rd party D (person served with new complaint) must assert any defense under Rule12, counterclaims and crossclaims under Rule 13(a), (b), and (g), defenses to the original P, and any claims 29

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V.

arising out of the transaction or occurrence of the same subject matter against 3rd party P. ii. 14(b): When a P may bring in a 3rd party. P may bring in a 3rd party when a claim is asserted against him if the rule would also allow D to. Interpleader: Used in situations where inconsistent obligations are a concern, and potential Ds need to ensure that adjudication is binding on all persons with claims against them. Generally insurance companies. a. Rule 22: Interpleader. i. By Plaintiff: Persons with claims that may expose P to double or multiple liability may be joined as Ds and required to interplead. Joinder is proper even though the claims of several claimants lack a common origin or are adverse and independent rather than identical, or the P denies liability in whole or in part to any or all of the claimants. ii. By Defendant: A D exposed to similar liability may seek interpleader through a crossclaim or counterclaim. b. 28 U.S.C. 1335: District courts have original J of civil interpleader actions worth $500 or more if: i. Two+ adverse claimants of diverse citizenship, AND ii. P has deposited money or property with the court conditioned by P with the future order or judgment with respect to the subject matter of the controversy. c. 28 U.S.C. 2361: Court may order any interpleader claimants from instituting or proceeding in any other court affecting the property or money involved in the interpleader action until further order. Intervention: When parties do not want or are unable to add a party that wants to interject themselves into the litigation. Must not disrupt PJ or SMJ. a. Rule 24: Intervention. i. Intervention of Right: Court must permit anyone to intervene who is given an unconditional right to intervene by federal statute, or claims an interest relating to the property or transaction that is the subject of the action, and is situated so that disposing of the action may impair or impede the movants ability to protect its interest, unless already adequately represented. ii. Permissive: Court may permit anyone to intervene who is given a conditional right to intervene by federal statute, or has a claim or defense that shares with the main action a common question of law or fact.

Class Actions I. Rule 23 Class Actions: One person or small group of persons represents a larger class of persons sharing common interests. Three common aspects of class actions are exit (ability of class members to avoid membership), voice (ability of class members to participate in litigation), and loyalty (assurance that interests of the named representative are the same as those absent class members). a. Prerequisites: i. Numerosity: So numerous joinder is impracticable. ii. Commonality: Questions of law or fact common to the class. iii. Typicality: Claims and defenses of representatives are typical of the claims or defenses of the class. iv. Representation: Parties will fairly and adequately protect the interests of the class. b. Types of Class Actions: Three main types. Actions are maintainable if (a) satisfied and: 30

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i. Prosecuting separate actions by or against individual class members would create risk of: 1. Inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class. 2. Adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests. ii. The party opposing the class had acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. iii. Court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Consists of naturally forming classes and parties with nominal claims. Pertinent matters include: 1. Class members interests in individually controlling the prosecution or defense as separate actions. 2. Extent and nature of any litigation concerning the controversy already begun by or against class members. 3. Desirability or undesirability of concentrating the litigation of the claims in the particular forum. 4. Likely difficulties in managing a class action. c. Certification: Certifying class, notifying class members, judgments. i. Certification Order: Must be timely and define class and claims, issues, or defenses under Rule 23(g) at early practicable time. ii. Notice: 1. (b)(1) or (b)(2) Classes: Court directs appropriate notice to class. 2. (b)(3) Classes: Court must direct best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. Notice must state: a. Nature of action, definition of certified class, claims, that members may enter an appearance, that court may exclude members requesting exclusion, how to request exclusion, and the binding effect of class judgments on members. 28 U.S.C. 1332(d): Class Actions Fairness Act. a. Jurisdiction: District courts have original J of any civil action in which matter in controversy exceed the sum or value of $5,000,000, exclusive of interests, and is a class action in which: i. Any member of a class of Ps is a citizen of a State different from any D. ii. Any member of a class of Ps is a foreign state or a citizen or subject of a foreign state and any D is a citizen of a State. iii. Any member of a class of Ps is a citizen of a State and any D is a foreign state or a citizen or subject of a foreign state. b. Declining Jurisdiction: Courts have discretion in declining to exercise J in the interests of justice where between 1/3 and 2/3 of the member of a class of Ps are citizens and the primary Ds are citizens of the State in which the action was originally filed based on consideration of several factors. 31

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V.

VI.

Notice and Costs: a. Eisen v. Carlisle & Jacquelin: Rule 23(b)(3) class action where individual claims were not viable on their own. i. Holding: Suit not maintainable as a class action because of difficulties in distributing recovery to all members and delivering notice to all members of the class. Imposing significant notice costs on D because P was unable to bear the costs alone was considered a ruling on the merits pre-certification and not valid. ii. Appealability: Orders regarding class certification are appealable within 14 days after order is entered. Certification of 23(b) Classes: a. Defining Classes: i. 23(b)(1): Members had some connection or commonality to one another BEFORE being joined as a class in relation to the injury or exposure to injury; circumstantial commonalities. ii. 23(b)(2): Members of a naturally occurring class as in (b)(1) and have something in common even BEFORE their common injury or exposure to the injury; inherent commonalities. iii. 23(b)(3): Members are common to one another AFTER they have all received some common exposure or injury; surface commonalities that do not inherently bind parties to one another. b. Wal-Mart v. Dukes: Largest class action ever certifiable under Rule 23(b)(2) for gender discrimination of all past and present Wal-Mart employees. i. Holding: Class not certifiable because they lacked commonality issues in terms of disparities in measuring the amount of discrimination and discretionary practices applicable to each class member, AND (b)(2) actions call for injunctive relief, which is not probable in a discrimination suit seeking damages in the form of back-pay. Certification of Mass Tort Actions: a. Bridgestone/Firestone: Rule 23(b)(3) class action including parties who have already been seriously injured by defective tires and parties who have suffered only financial damages. i. Holding: Class not certifiable for two primary reasons: 1. Parties suffering personal injuries may seek independent adjudication because nature of injury and choice of law problems (must apply state law of place where harm occurred, which is impracticable with a large class), causing class to not satisfy superiority of litigation option. 2. Class of parties with only financial damages also involved adjudication under many different Js because the individual products purchased vary among claims making nature of claims essentially different. Class thus fails the predominance standard. Settlement Cases: Courts may certify a class provisionally for settlement purposes, in which members are notified of both settlement and certification simultaneously. Court hold fairness hearing to determine if class meets certification requirements and finds if the settlement is fair, then approves the class. a. Amchem Products v. Windsor: Class of parties exposed to asbestos products made by 20 different Ds. Included parties both only exposed and those personally injured by products. i. Holding: Class failed to meet requirements of 23(a) given divergent interests of currently injured parties and those suing for exposure-only. 32

1. Settlement classes were not required to show superiority, effectively loosening the requirement for future classes. Purpose of superiority regulates representation and determines whether the class is actually triable. 2. Class still failed to show predominance of common questions between those who were sick and those who were exposed. Predominance standard used to regulate disparities between damages amounts and is definitive of the class itself for certification. 3. Adequacy of representation not fulfilled because some damages would have to be taken away from those who were actually/would actually be damaged for those who were only exposed and may never actually be injured.

Judgments
Claim Preclusion I. General Preclusion: Judgments acts as a bar to second attempts at relitigation. Preclusion used as affirmative defense (under Rule 8(c)) that can be waived if not brought up at an early stage of the litigation. Differs from stare decisis because stare decisis deals only with pure issues of law and may be overruled, with broader applications. Preclusion deals with both issues of fact and law, and is absolute. Preclusion also deals with finality and fairness to the involved parties, and stare decisis affects and affords predictability for the entire legal system. II. Claim Preclusion: Res judicata precludes collateral attacks. Prohibits any claim that was or should have been asserted prior to proceedings. a. Requirements for Preclusive Effect: i. Judgment must have bee rendered by a court of competent J. ii. Judgment must have been a final judgment on the merits, and appellate remedies have been exhausted or foregone. 1. Finality: A judgment rendered by the trial court is considered final for res judicata purposes, and the pendency of appeals or motions for reconsideration do not delay or suspend res judicata effects. 2. On the Merits (versus a procedural technicality): Includes Rule 12(b)(6) dismissals, voluntary dismissals, and dismissals that decided whether the claim is valid (summary judgment). a. Does Not Include: Dismissal for lack of J, improper venue, or expiry of the statute of limitations. iii. Same cause of action and the same parties, or privies, were involved in both suits. b. Transactional Test for Preclusive Effect: i. Whether a different judgment in the second action would impair or destroy rights or interests established by the judgment entered in the first action. ii. Whether the same evidence is necessary to maintain the second cause of action as was required by the first. iii. Whether the essential facts and issues in the second were present in the first. iv. Consider: Causation, temporal relatedness, overlapping evidences, including witnesses. v. Summary: Essentially test asks whether or not the primary Ps right, Ds wrong, and duty are the same in each action. c. Rule 41(b): Involuntary dismissal effect. If P fails to prosecute or comply with rules of court order, a D may move to dismiss the action or any claim against it. Unless dismissal 33

order otherwise states, a dismissal and any dismissal not under this rule, except for lack of J, improper venue, or failure to join a party under Rule 19, operates as an adjudication on the merits. d. Rule 60(b): Grounds for relief from a final judgment, order, or proceeding. Court may relieve the party from a final judgment for the following reasons: 1Mistake, inadvertence, surprise, or excusable, neglect; 2Newly discover evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); 3Fraud, misrepresentation, or misconduct by an opposing party; 4The judgment is void; 5 Judgment has been satisfied, released, or discharged, based on an earlier judgment that has been reversed or vacated, or applying it prospectively is no longer equitable; and 6any other reason that justifies relief. i. Does not Include: Assertion of a new legal theory. Once a claim has been litigated, new theories related to the same claim in the form of different issues are permitted. e. Same Claim: Preclusion law increasingly requires and persuades parties to consolidate their claims into single, initial action. i. Rush v. City of Maple Heights: P previously sued for damages to motorcycle from bumpy road and sought to bring subsequent action for personal injuries sustained. 1. Holding: Res judicata applies because a single tort is the basis of one action, and the personal injuries and property damages were the result of the same, individual wrongful act. ii. Herendeen v. Champion International Corp.: P sought damages for lost commissions and pensions in state court in first suit, seeks damages of injunctive relief and exemplary and punitive damages in federal court in second action. 1. Holding: Claim not barred by res judicata because complaint sets forth separate and distinct causes of action from those previously adjudicated. iii. Successive Acts or Events: Generally, when there are past due installments of a K, a party must sue for the entire amount due in one action. A party may also bring consecutive actions for a temporary nuisance causing continuing or recurring harm, but must bring a suit for both present and future harm when the nuisance is permanent. f. Exceptions to Claim Preclusion: i. Federated Department Stores, Inc. v. Moitie: Seven antitrust lawsuits of different claims brought against common D for fixing retail prices. All claims are dismissed in federal court. 5 appealed in federal court, but 2 Ps bring the same claims in state court. 1. Holding: Appeals in state court are barred by res judicata because the plaintiffs forfeited their right to appeal on the initial claim in federal court. 2. Rule: There are no exceptions to the finality of a partys failure to appeal simply because their claims are substantially similar to other parties who have successfully appealed their claims against the same D in a consistent venue. ii. Costello v. United States: US brought claim revoking Ps citizenship under predecessor to 340(a) of Immigration and Nationality Act, which was dismissed for failure to file the affidavit of good cause. US brought 2nd action under 340. 1. Holding: A dismissal for failure to file the affidavit of good cause, while no an explicit exception under Rule 41(b), that did not specify without 34

prejudice, is considered a dismissal for lack of J under the meaning of Rule 41(b) exceptions. 2. Rule: Exceptions encompass dismissals based on Ps failure to comply with a precondition required for the court to move forward in determining the merits of a substantive claim, and for a decision to be on the merits, there must be at least one decision on the substantive rights of the parties. Issue Preclusion I. Issue Preclusion/Collateral Estoppel: Arises after it has been determined that claim preclusion is not applicable. Prevents issues of fact or law from being relitigated. a. Requirements (27 Restatement of Judgments): i. An issue must be actually litigated and determined in the first proceeding. 1. Includes: Issues raised in pleadings and submitted to decision on motion or trial. 2. Does Not Include: Stipulations to the existence of a fact, default judgments, failure to raise an issue as an affirmative defense, and allegations admitted without adducing evidence. ii. The first proceeding must produce a valid final judgment. iii. The issue must have been essential to the judgment. iv. The determination, or issue, must be the same in the second proceeding as it was in the first. b. Exceptions to Issue Preclusion (28): At discretion of trial court. i. The party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action, OR ii. The issue is one of law and (a) the two actions involve claims that are substantially unrelated, or (b) a new determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws, OR iii. A new determination of issue is warranted by differences in the quality or extensiveness of the procedures followed in the two courts or by factors relating to the allocation of J between them, OR iv. The party against whom preclusion is sought had a significantly heavier burden or persuasion with respect to the issue in the initial action than in the subsequent actions; OR v. There is clear and convincing need for a new determination of the issue (a) because of public policy and potentially adverse effect on public interest, (b) because it was not sufficiently foreseeable at the time of the initial action that the issue would arise in a subsequent action, or (c) because the party sought to be precluded did not have an adequate opportunity or incentive to obtain a full and fair adjudication. c. Verdict Distinctions: General verdicts refer to a jury verdict that simply awards a verdict for one of the parties and does not articulate reasoning. Special verdicts refer to verdicts in which the jury makes a finding of fact. i. If the judgment of the trial court is based on the determinations of two issues, either of which stated independently would support the result, the judgment is not conclusive in a later action with respect to either issue. ii. There should be no preclusion if the party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action. d. Traditional Issue Preclusion: 35

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i. Little v. Blue Goose Motor Coach Co.: P alleges negligence against D in suit during the pendency of successful suit against P by D to recover personal injury damages arising out of the same accident. 1. Holding: P is estopped by the verdict in the initial action by D because the judgment against him was a final determination of that issue between the parties and is conclusive amongst them, and P is thus precluded from relitigating the issue of his negligence. e. Modern Issue Preclusion: Nonparty to the first suit seeks to use issue preclusion against one who was a party. i. Kaufman v. Eli Lilly Co.: DES case after Bichler; nonparty seeks to use jurys finding that D acted on concerted action in a second action. 1. Holding: Collateral estoppel effect was not given to the jurys findings that D acted on concerted action because it was based on an unresolved question of law, but D was precluded (collaterally estopped) from contesting their decided negligence by relitigating the remaining issues relevant to the action. 2. Exception to Preclusion: D was not collaterally estopped from relitigating the jurys findings because it was not an issue initially raised in trial and thus D was not permitted to raise the issue on appeal. f. Vicarious Representation: Exceptions to the general rule that a person can only be bound to an action if they were a party to the action. i. Exceptions to Same-Party Preclusion: 1. Consent. 2. Actual control of the litigation. 3. Substantive legal relationships (privity). 4. Relitigation of a prior judgment through a proxy. 5. Adequate representation in a properly structured litigation. 6. Statutory schemes that expressly provide for the binding of nonparties. ii. Taylor v. Sturgell: P filed suit under Freedom of Information Act against Federal Aviation Administration. Ps acquaintance, Herrick, had initially filed an identical suit against the same D and lost. Question of whether P was virtually represented by Herrick and thus precluded from bringing the claim. 1. Holding: Doctrine of preclusion by virtual representation was disapproved because it expanded claim preclusion too broadly and potentially violated due process rights, and P was thus permitted to maintain his suit despite Herricks previous claim. 2. Virtual Representation: District court applied five-factor test. [Same identity of interests + Adequate representation] + (Close relationship between present party and putative representative OR Substantial participation by the present party in the first case OR Tactical maneuvering on the part of the present party to avoid preclusion on the prior judgment). Mutuality: Principle that only a party to the litigation or in privity with such a party can be bound or take advantage of a prior judgment. a. Defensive Non-Mutual Estoppel: Same P, different Ds. Defendant is asserting another partys victory against P as a defense. Seeks to encourage joinder of multiple Ds in an initial action to prevent multiple litigations. i. Entire Controversy Doctrine: Some courts require a P to join all potential different Ds with substantially similar claims in the initial suit, precluding 36

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subsequent suits even if P was successful in the initial suit. Suits will not be dismissed under Rule 19(b) is all potential Ds are not joined, but P will be precluded from future litigation. ii. Bernhard v. Bank of America National Trust & Savings: Sathers estate brought suit against Sathers caretakers to recover funds entrusted to them without permission during her lifetime, and lost. Sathers estate then brought suit against B of A to recover the same funds for the same reason, and B of A asserted defensive non-mutual issue preclusion successfully, even though there was lack of privity and mutuality. iii. Rule: Res judicata may only be pleaded AGAINST parties that were bound by the earlier litigation, but there is no requirement as to WHOM is pleading res judicata (non-mutual). iv. Test: 1. Was the issue decided in the prior adjudication identical to the one presented in the present action? 2. Was there a final judgment on the merits? 3. Was the party against whom the plea is asserted a party to, or in privity, with a party to the prior adjudication? b. Offensive Non-Mutual Estoppel: Different Ps, same D. Plaintiff is asserting another partys victory against D to preclude D from contesting the issue of liability. Discourages joinder of Ps because others will be allowed to take advantage of earlier litigation. Initial P may also have absorbed a disproportionate share of the litigation costs that may prevent future Ps from benefitting. i. Parklane Hosiery Co. v. Shore: Initial SEC suit against Parklane for alleging fraudulent proxy statements. Stockholders then filed class action against Parklane seeking to offensively use judgment against Parklane from SEC action. 1. Holding: No justifications justifying a refusal to allow the use of offensive estoppel present because Ds received a full and fair chance to litigate the initial claims, and 7th Amendment rights not violated. ii. Wait and See: Plaintiffs that may have been permitted to join in the initial lawsuit may be precluded from filing subsequent suits and seeking to use offensive non-mutual preclusion because they adopted a wait and see attitude to allow initial Ps to litigate for them and then decide if they could recover. iii. Problems: Does not always promote judicial economy by giving an incentive to join all Ps initially and will have the opposite effect of having potentially joined Ps wait to see how the suit will prevail. May be unfair to a D who does not fully litigate the initial suit because there is not a large claim at stake, when subsequent Ps with bigger claims seek to use earlier judgments that may have been settled. Judicial Estoppel: Places additional limits on the positions a litigant can take in court. Equitable doctrine that looks primarily to the behavior of a party, instead of the effect of a judgment. Provides that a party can not bring subsequent suits and change their position on issues when their interests change; prevents inconsistent party behavior. a. Test: i. A partys later position must be clearly inconsistent with the position that it took in the earlier lawsuit. ii. Inquire whether the party succeeded in persuading the court to accept the partys earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either he first or the second court was misled. 37

iii. Whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. Inter-Jurisdictional Preclusion I. Inter-jurisdictional Preclusion: Promotes interjurisdictional uniformity and protects reliance interests and stability of outcomes within the federal system. a. Full Faith and Credit i. Article IV, 1: Full Faith and Credit shall be given in each State to the public acts, records, and judicial proceedings of every other Stat. And the Congress may be general laws prescribing the manner in which such acts, etc. shall be proved, and the effect thereof ii. 28 U.S.C. 1738: The records and judicial proceedings of any court of any State and Territory shall have the same full faith and credit in every court within the US as they have by law or usage in the courts of such State from which they are taken iii. Differences: 1. Statute makes clear that a judgment must receive the same respect that is has received in the issuing State. 2. Statute imposes the duty on every court within the US and its Territories, while the Constitution speaks only to each State. b. State/Federal Preclusion: Whether a state adjudication precludes a litigant the opportunity of litigating a federal question in a federal court. i. Allen v. McCurry: P invoked 4th and 14th Amendments in state court to suppress evidence, was denied and P was convicted. D seeks federal court relief for constitutional violations under 1983. 1. Rule: Collateral estoppel appropriate because federal issues should not be relitigated after having had a full and fair hearing in state court, even if the state courts decision may have been erroneous. ii. Test of Appropriateness of Federal Remedy: 1. Where state substantive law was unconstitutional. 2. Where state procedural law was inadequate to allow full litigation of a constitutional claim. 3. Where state procedural law, though adequate in theory, was inadequate in practice. iii. Administrative Agencies: Unless the federal statutory scheme indicates an intent to override federal preclusion law, federal courts will give the un-reviewed findings of state administrative agencies the same preclusive effect that the state courts would give. iv. Marrese v. American Academy of Orthopedic Surgeons: Antitrust issue raised in second suit between mutuality of parties indisputably could not have been raised in initial suit in state court because it was an exclusively federal issue. 1. Holding: Suit not barred by issue preclusion because the issue had never been litigated and was not essential to the judgment, but the claim was barred under claim preclusion because the issue could have been raised with the initial (had it been in the proper forum). 2. Rule: Federal court must follow preclusion policies of the state that the initial judgment was made in (outcome determination test) pursuant to 1738. In Marrese, the state applied choice of law and asked whether of 38

not the state judgment, under state law, would have preclusive effect that could not have been brought under state procedure. c. Federal Diversity Judgments: Erie doctrine used in determining whether state or federal law should control the effect of the judgment from a federal court sitting in diversity; must balance outcome with conflicting results under Rule 41(b). i. Semtek v. Lockhead Martin Corp.: Diversity case removed from state to federal court. Federal dismissed on merits due to bar under S of L. P brought same suit in Maryland state court, where it was unable to be removed to federal for lack of diversity and federal question. State court barred claim for preclusive effect from judgment on the merits in initial federal court. 1. Holding: Claim preclusive effect of a federal diversity judgment are a matter of federal common law, only applicable to federal judgments, and the federal common law should apply the preclusion law of the forum state, creating a system of federal common law with deference to state preclusion law. 2. Rule 41(b): Dismissal operates as adjudication on the merits under federal law, and would be preclusive in federal court, but is not controlling in state court. 3. Erie Doctrine: Allowing preclusive effect would encourage forum shopping via removal from state to federal court to be granted a Rule 41 dismissal, being immunized from refilling the claim in a state without an expired S of L. 4. Federal Law: If the claim is based on federal law, the state court will have to give the same preclusive effect as federal common law.

Checklists
PERSONAL JURISDICTION CHECKLIST
A. FEDERAL OR STATE COURT? If the case is in state court, the limits on state court jurisdiction apply. Proceed to Part B of this checklist. If the case is in federal court. Rules 4(k) & 12 must be consulted. 1. Rule 4(k) Does the general rule of 4(k)(I)(A) apply or is there an alternate applicable provision for establishing jurisdiction? If one of the alternate provisions applies, then compliance with 4(k)(I)(A) which incorporates states' standards of personal jurisdiction - will be unnecessary. Possible options under Rule 4(k) to consider: a. 100-Mile Bulge Rule Is the party one that was joined under Rule 14 or 19 & served within a judicial district not more than 100 miles from the place where the summons issues? If so, jurisdiction can be established under Rule 4(k)(I)(B). If not, proceed to the next question. Interpleader Is the party subject to federal interpleader jurisdiction under 28 U.S.C. 1335? If so, jurisdiction can be established under Rule 4(k) (1)(C). If not, proceed to the next question. Federal Statutory Provision Is there a federal statute involved here that has its own service provisions, compliance with which would establish personal jurisdiction? If so, jurisdiction can be established under Rule 4(k) (1) (D) by complying with the special service provision. If not, proceed to the next question. Alien Provision Is this a claim arising under federal law against a person not subject to personal jurisdiction in any state? If so, service will render the defendant subject to personal jurisdiction if it has minimum contacts with the United States (Rule 4(k) (2)). Proceed to the constitutional analysis below in Part C but analyze minimum contacts with reference to the United States rather than a particular State. Rule 4 (k)(I)(A) - if none of these alternative provisions of Rule 4(k) apply, you will have to follow Rule 4(k)(I) (A), which requires you to determine whether the defendant could be subjected to

b. c.

d.

e.

39

the jurisdiction of a court of general jurisdiction in the state in which the district court is located. Refer to the analysis beginning at Part B of this checklist to make this determination. 2. Possible Waiver? Consult Rule 12 - FRCP Rule 12 requires defendants to raise any challenge to personal jurisdiction in their initial response or the challenge is waived. (Filing a notice of removal prior to submitting any other-response does not constitute waiver of a personal jurisdiction challenge). Thus, it is critical at this point to determine whether the defendant has waived a personal jurisdiction challenge. If so, personal jurisdiction is appropriate.

B. LONG-ARM STATUTE - does the state's long-arm statute authorize Personal jurisdiction under these facts? 1. Type of Long-Arm Statute - what type of long-arm statute does the forum state have? a. Rhode Island Model - authorizes courts to exercise jurisdiction to the constitutional limit. If this type of statute is involved, no further statutory analysis is required & you may proceed to the constitutional analysis beginning at Part C.

b. Enumerated Act Model- specifically articulates factual circumstances where courts can exercise personal jurisdiction. If this type of statute is involved, proceed to the next question. 2. Statutory Analysis - Do the facts presented fall within one of the categories articulated in the long-arm statute? (Remember, in practice, it is best to refer to the interpretation of the long-arm statute given by the state's highest court to see if the statute is interpreted as extending jurisdiction to the constitutional limit, notwithstanding its status as an enumerated act statute.) a. b. Yes. If the facts fall within the long-arm statute, proceed to the constitutional analysis of Part C. No. If the facts do not fall within the long-arm statute, then personal jurisdiction cannot be exercised over the party. Your analysis ends here. (If you are uncertain of this conclusion, the better practice may be to continue on with your analysis in the event that your conclusion regarding the long-arm statute is incorrect. However, where the facts dearly do not fall within the terms of the long-arm statute, & the statute is not one that has been interpreted to extend to the constitutional limit, you should not waste valuable exam time engaging in a needless constitutional analysis.) C. CONSTITUTlONAL ANALYSIS - does the assertion of jurisdiction satisfy the requirements of due process? 1. Traditional Bases for Persona l Jurisdiction - is one of the traditional bases for personal jurisdiction applicable? a. In-state service. Was the. defendant served with process within the state? If so, jurisdiction is proper. Burnham v. Superior Court, 495 U.S. 604 (1990). However, where the defendant's in-state presence. is procured by fraud, jurisdiction is not proper. Wyman v. Newhouse, 93 F.2d 313 (2d Cir. 1937). Voluntary Appearance. Has the defendant voluntarily appeared & waived any challenge to personal jurisdiction? If so, the court will have personal jurisdiction over the defendant.

b. 2.

Exceptions to Jurisdictional Analysis - If no traditional basis for personal jurisdiction is present, does an exception to traditional jurisdictional analysis apply? a. Consent. Did the defendant consent to jurisdiction in the state? i. Forum Selection Clause - is there a forum selection clause? If so, does it apply to this dispute? See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991) (holding that forum selection clauses are generally enforceable). ii. State Domestication Statute - is there a state statute exacting consent from the defendant (e.g., through corporate registration; non-resident motorist statute)? If so, such consent is generally disfavored; look for actual consent & question whether jurisdiction should be based on fictitious consent. If the defendant knew that certain actions, such as corporate registration, constituted consent to service on a particular state agent, that is more akin to actual consent.

40

However, if the defendant can be said to have been unaware of the consent to appoint an agent for in-state service, such as is the case with non-resident motorist statutes, consent may be more suspect.

b.

Status - Does the action concern the status of the plaintiff? If so, cases involving the personal status of the plaintiff, such as divorce actions, can be adjudicated in the state where the plaintiff resides. (Because divorce actions are treated as in Rem proceedings in most states, it may be more appropriate to say that the plaintiffs residence in a state locates his other marital status within that state, which gives that state authority to exercise in rem jurisdiction over the divorce action.) Shaffer v. Heitner, 433 U.S. 186 (1977); Pennoyer v. Neff, 95 U.S. 714 (1878).

c.

State Citizens - Is the party challenging personal jurisdiction a citizen of the forum? If so, forum courts may exercise personal jurisdiction over that party as a state citizen. Milliken v, Meyer, 311 U.S. 457,463 (1940). Non-resident Plaintiffs - Is the party challenging personal jurisdiction the original plaintiff in the action? If so, that party has already consented to jurisdiction by choosing to bring the action in the forum. Adam v. Saenger, 303 U.S. 59, 67-68 (1938). Estoppel- Is the defendant estopped from challenging jurisdiction for some reason? See Ins. Corp. Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982) (finding the defendant to be estopped from challenging jurisdiction because of the defendant's refusal to cooperate with jurisdictional discovery orders); Farmingdale Steer-Inn, Inc. v. Steer Inn Realty Corp., 274 N.Y.S.2d 379 (Sup. Ct. 1966) (defendant estopped from challenging jurisdiction after misrepresenting that it was registered to do business in the state).

d.

e.

3.

International Shoe Test - if none of the above exceptions applies, then you must ask, Does the assertion of jurisdiction satisfy the standard of International Shoe? a. In rem Actions - is this an in rem action? i. If so, Shaffer has indicated that such actions will generally meet the minimum contacts standard (to use the language of International Shoe, these are isolated but directly related contacts that warrant jurisdiction). ii. If not, proceed to the next question. b. Four-Position Matrix - determine whether the contacts serving as the basis for jurisdiction are systematic & continuous or single & isolated & whether they are related or unrelated to the cause of action. i. Continuous & Systematic & Related Personal jurisdiction is appropriate. See Int'l Shoe; Keeton v. Hustler Magazine, 465 U.S. 770 (1984). ii. Continuous & Systematic but Unrelated Possible situation permitting general jurisdiction. Ask whether the contacts can be described as "substantial" & compare them with the contacts in the following 2 cases: Perkins v. Benguet, 342 U.S. 437 (1952) provides the general jurisdiction standard & illustrates facts sufficient to support a finding of general jurisdiction. Helicopteros v. Hall, 466 U.S 408 (1984) provides facts insufficient to support general jurisdiction. If the unrelated contacts are insufficient to support general jurisdiction, proceed to specific jurisdiction analysis to see if any related but isolated contacts also exist.

iii. Single & Isolated & Unrelated - no personal jurisdiction. iv. Single & Isolated & Related - this is a specific jurisdiction fact pattern. Proceed to the specific jurisdiction analysis. 4. Specific Jurisdiction Analysis - can specific jurisdiction be exercised over the defendant? The answer depends on a two pronged analysis of minimum contacts & reasonableness. a. Minimum Contacts - are there minimum contacts between the defendant & the forum state?

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i. Purposeful Availment - has the defendant purposefully availed itself of the privilege of acting within the forum state such that it has received benefits & protections of the state? Hanson v. Denckla, 357 U.S. 235 (1958). If so, the minimum contacts requirement is satisfied, Proceed with the reasonableness analysis of Part C.4.b below. This requirement assures that the defendant will be able to reasonably anticipate where its conduct will subject it to personal jurisdiction. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980). Purposeful availment cannot exist on the basis of the unilateral actions of parties other than the defendant. Worldwide Volkswagen v. Woodson, 444 U.S. 286 (1980).

ii. Intentional Torts - if an intentional tort has been alleged, has the defendant intentionally targeted its tortuous conduct at a forum resident & caused harm to that resident in the forum? Calder v. Jones, 465 U.S. 783 (1984). If so, then personal jurisdiction over the defendant in the forum state is appropriate under the Calder effects test. iii. Contractual Contact - does the defendant have a contractual relationship with a forum resident? If so, use contracts-plus analysis (i.e., consideration of the place of negotiation, execution, & performance of the contract) to consider whether the contract solicitation, negotiation, & course of conduct support finding of purposeful availment. Burger King v. Rudzewicz, 471 U.S. 462 (1985), See also McGee o. Int'l Life Insurance Co., 355 U.S. 220 (1957). If purposeful availment is found, proceed with the reasonableness analysis of Part C.4.b below. iv. Stream of Commerce Cases if this is a stream of commerce case - meaning that a product of the defendant has caused harm to the plaintiff only after traveling through the stream of commerce - do the facts satisfy the O'Connor or Brennan standard for purposeful availment? Asahi Metal v. Superior Court, 480 U.S. 102 (1987).` OConnor Standard the defendant must have intended for its product to be marketed in the forum state in order to have purposefully availed itself of the forum. Brennan Standard the defendant merely must have been aware that its product would be marketed in forum state in order to satisfy the purposeful availment requirement of the International Shoe test. Reasonableness Analysis if purposeful availment is found here, proceed with the reasonableness analysis of Part C.4.b below. If not, still proceed with the reasonableness analysis in light of the approach taken in Asahi where O'Connor analyzed reasonableness even after finding no purposeful availment.

v. Quasi in Rem Cases - is jurisdiction being asserted based on property located within the state? If so, you must still analyze the in-state property as you would any other contacts. Property ownership is considered' an isolated contact for jurisdictional purposes. Shaffer v. Heitner, 433 U.S.186 (1978). vi. Internet Cases - is this a case where the contacts are through the Internet? If so, analyze whether the Internet contacts show purposeful availment, (Internet-speciflc tests need not be used exclusively in one's analysis. If an intentional tort is alleged, the effects test of Calder can also be relevant. Even where an Internet-specific test is used, it should be done in the context of a traditional analysis & not in isolation. That means still considering purposeful availment & reasonableness rather than rote application of the Zippo sliding scale.) If purposeful availment is found, proceed with the reasonableness analysis of Part C4.b below. Inset Systems v. Instruction Set, Inc., 937 F. Supp. 161 (D. Conn. 1996) - Under Inset, the presence of a website advertising one's product is sufficient to establish purposeful availment in every state where the website is available. This approach has generally been repudiated by the courts.

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Zippo Mfg. v. Zippo Dot Com, 952F. Supp. 1119 (W.D. Pa. 1997) - under Zippo, a website alone is not enough to support jurisdiction. The propriety of jurisdiction depends on the location of the site on the active-interactive-passive spectrum. (It should be noted that these classifications should really be used simply to determine whether the website satisfies the purposeful availment requirement. Thus. the better approach is to continue on with a reasonableness analysis after applying the Zippo test rather than reaching a conclusion solely based on the active / interactive / passive classification attached to the website.) Passive - is the website passive? If so, jurisdiction is not appropriate based on the website per Zippo. Active is the website active? If so, jurisdiction is appropriate under Zippo. Interactive - is the website interactive? If so, then jurisdiction will depend on the degree of interactivity & the commercial nature of the website. A highly interactive commercial website will generally support personal jurisdiction. (It may be worthwhile to ponder the difficulties with this approach when you are applying it on an exam. Shortcomings of the Zippo model include its focus on commercial websites. its outdated view of the nature of activity on the Internet, & the lack of clarity in the meaning of an interactive website & the jurisdictional consequences associated with operating such websites.)

b.

Reasonableness - if your analysis has indicated that the defendant has purposefully created minimum contacts with the forum state, then ask, Would the exercise of jurisdiction be (un)reasonable? Analyze with reference to the following five factors applied in Asahi, noting that a balancing of the first three of these factors is typically determinative. The balancing of these interests is somewhat a subjective exercise that depends on the facts. i. Burden on the Defendant. Would the inconvenience to the defendant be constitutionally burdensome, meaning it would impact the defendant's ability to mount a defense? A yes answer would weigh against reasonableness. ii. State Interest. Does the State have a strong interest in resolving the dispute? The state's interest is greater where its laws or policies are at stake, or where state citizens or corporations are involved. An affirmative answer here weighs in favor of reasonableness. iii. Plaintiff Interest. Does the plaintiff have a strong interest in obtaining relief in the forum? If so, that is a factor favoring reasonableness. iv. Systemic Efficiency. Would jurisdiction promote the interstate judicial system's interest in efficient resolution of controversies? v. Furtherance of Social Policies. Would jurisdiction promote the shared interest of the States in furthering fundamental substantive social policies?

PERSONAL JURISDICTION POINTS TO REMEMBER

Do not forget to determine whether the state's long-arm statute permits jurisdiction if the case is in state court or in federal court where jurisdiction is being evaluated under state standards. Traditional bases & exceptions do not automatically confer jurisdiction, they simply provide instances where the exercise of jurisdiction would be constitutional. The relevant state long-arm statute must still be satisfied in order for jurisdiction to be exercised in those circumstances.

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When analyzing specific jurisdiction, try to do both the minimum contacts & the reasonableness analyses (an example is Justice OConnor's Asahi opinion) to cover your bases. You can cite Justice Brennans slidingscale approach as the reason for such a belt-&-suspenders approach, but note that his approach is not the clear favorite of the Court. The Court has not quite come to terms with how to align the purposeful availment & reasonableness prongs of the International Shoe test. Fact patterns in exam questions won't necessarily fit into neat boxes. There may be Internet contacts & an intentional tort or a case may involve products placed in the stream of commerce & a contract with a forum resident. Be prepared to analyze cases across categories, synthesizing the analysis as necessary. Distinguish among different defendants. The jurisdictional fate of one does not necessarily apply to all. If there are alternate approaches to resolving or analyzing an issue (e.g., O'Connor v. Brennan in Asahi; Scalia v. Brennan in Burnham; Inset v. Zippo) acknowledge the existence of the alternate approaches, select one to apply, & explain your selection. where one approach is preferred or enjoys majority support, that should be acknowledged & generally followed; however, if there are good reasons for following the alternative approach, do so & articulate why the alternative is better.

NOTICE & THE OPPORTUNITY TO BE HEARD CHECKLIST

A. NOTICE - was adequate notice given to the defendant? Was notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action & afford them an opportunity to present their objections? See Mullane v. Central Hanover Bank & Trust Co. To make this determination, consider the following questions: 1. Adequate Information - does the notice convey sufficient information to notify the party of how & by when it should respond? a. b. 2. a. b. 3. Yes. If so, proceed to the next question. No. If not, the notice is inadequate. Yes. If so, proceed to the next question. No. If not, the notice is inadequate.

Timeliness - does the notice allow reasonable time to appear?

Method - is the method of giving notice a method that one desirous of actually informing the party might reasonably adopt to achieve actual notice? To answer this question, ask, Was the most reasonable means available employed? a. b. No. If there is a better means that is available & reasonably practical, then it should be employed. Yes. Where a superior method exists but is too expensive, time consuming, or burdensome, then it need not be employed over more practical methods under Mullane. The notice given to the defendant was adequate.

NOTICE & THE OPPORTUNITY TO BE HEARD POINTS TO REMEMBER

A party must receive notice of the pendency of an action before their rights can be determined. It is not just the method of notice that matters, but the content & timing of the notice as well. Actual notice is not required; only a method reasonably calculated to apprise the party of the action is required. This requires the best means practicable, not the best means available.

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Service by publication is generally not adequate for in personam actions. For in rem or quasi in rem actions, constructive notice or notice by publication is permissible only if the names & contact information of the property owners are not known or reasonably ascertainable. The Due Process Clause does not require pre-deprivation hearings nor does it require that deprivation decisions be reviewed by a judge. Rather, the standard is a fact-dependent one that principally considers the protections against erroneous deprivation & the interests at stake. Thus, procedures that are adequate in one context may be inadequate in another.

SUBJECT MATTER JURISDICTION CHECKLIST

A. ORIGINAL FEDERAL COURT JURISDICTION - is there original jurisdiction over the claim by the plaintiff? 1. Diversity Jurisdiction - does the action satisfy the requirements of 28 U.S.C. 1332 such that the court may hear the case on the basis of diversity? a. Citizenship of the Parties - what is the citizenship of each of the parties in the action? i. Individuals - citizenship for individuals is determined based on their domicile; to establish domicile a person must be physically present in a place & have the intention to remain there indefinitely. ii. Corporations - for a corporation, citizenship-is based on its place of incorporation & the place where its principal place of business is located. 28 U.S.C. 1332(c)(1). Nerve Center Test - the corporation's principal place of business is the location of decision- making authority, typically its headquarters. Muscle test - the corporation's principal place of business is the location of the bulk of the corporation's production or service activities.

iii. Partnerships & Unincorporated Associations Partnerships & unincorporated associations are citizens of every state & country of which its partners or members are citizens. iv. Legal Representatives - legal representatives are deemed to be citizens only of the state of the party whom they represent. 28 U.S.C. 1332(c)(2). b. Diverse Parties - are the parties diverse in one of the enumerated ways identified in 1332? i. Are the adverse parties citizens of different states (the District of Columbia, Puerto Rico, & U.S. Territories are treated as states under 1332)? If so, the parties are diverse; proceed to Part A.1c. ii. Does the case involve a state citizen versus an alien? (Remember, the alien cannot be a permanent resident residing in the same state as the adverse party). If so, the parties are diverse; proceed to Part A.1.c. iii. Does the case involve citizens of different states with aliens as additional parties on either side or both sides (remember that permanent resident aliens are treated as state citizens for Purposes of destroying diversity)? If so, the parties are diverse; proceed to Part A.1.c. iv. Does the case involve a foreign state as a plaintiff versus a state citizen? If' so, the parties are diverse; proceed to Part A.1.c. v. Not permissible: alien v. alien; state citizen + alien v. alien; alien v. alien + state citizen; state citizen v. permanent resident alien from same state. c. Complete Diversity - are all of the parties on one side of the action diverse from all of the parties on the other side other side of the action? (Aliens on either side of the action may be from the same country). Strawbridge v. Curtiss, 7 U. S. 267 (1806). i. Yes. If so, then complete diversity as is required exists. ii. No. If not, there is not complete diversity & there can be no diversity jurisdiction over the claim.

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d.

Collusive Joinder - is there evidence that a party has been improperly or collusively named simply for the purpose of creating a basis for diversity jurisdiction? If so, the citizenship of the collusively or improperly named party may be ignored for diversity purposes. 28 U.S.C. 1359. Amount in Controversy - is the claim for more than $75,000? 28 U.S.C. 1332(a). If so, & the diversity of citizenship requirement has been satisfied, then diversity jurisdiction exists. Consult the following questions to determine the amount in controversy: i. Punitive Damages Included - are there punitive damages that can be added in to reach the jurisdictional amount? ii. Costs & Interest Excluded - are there costs & interest that need to be excluded before evaluating whether the amount in controversy is satisfied? iii. Aggregation - can the plaintiff's separate claims be aggregated to satisfy the amount in controversy? Only if one of the following circumstances exists: There are multiple claims by one plaintiff against one defendant. There are multiple plaintiffs asserting an undivided interest. There are multiple defendants with joint & several liability.

e.

2.

Federal Question Jurisdiction - does the action satisfy 28 U.S.C. 1331 or one of the other statutes conferring Federal Question jurisdiction? a. Essential Federal Element - does the claim contain an essential federal element such that it arises under federal law? i. Creation Test - is the claim created by or brought pursuant to federal law? ii. Yes. If so, the claim arises under federal law; proceed to Part A.2.b. No. If not, proceed to the next question.

Substantial Federal Interest Test - if the claim is a state law claim, does the plaintiff's right to relief depend upon application or interpretation of' federal law? If so, is the federal interest implicated substantial? Yes. If so, the claim contains an essential federal element. Proceed to the next question. No. If not, then the claim lacks an essential federal element & federal question jurisdiction does not exist.

b.

Well-Pleaded Complaint Rule - does the essential federal element appear on the face of the plaintiffs well pleaded complaint? Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149 (1908). i. Federal Responses Ignored - are there anticipated or actual federal defenses or counterclaims presented that must be ignored for purposes of assessing the propriety of federal question jurisdiction? Artful Pleading Doctrine - is the presence (or absence) of a federal element genuine or artfully pleaded?

ii.

B. SUPPLEMENTAL JURISDICTION - if a claim does not qualify for diversity or federal question jurisdiction, does the claim qualify for supplemental jurisdiction under 28 U.S.C. 1367? 1. Section 1367(a) - does the broad grant of supplemental jurisdiction in 1367(a) apply to the claim? a. b. Freestanding Claim - is there a claim over which the court has original jurisdiction? (See analysis supra Part A). Common Nucleus of Operative Fact - is the supplemental claim at issue based on the same common nucleus of operative fact as the freestanding claim? United Mine Workers of America v. Gibbs, 383 U.S. 71 (1966).

2.

Section 1367(b) if 1367 (a) is satisfied, does 1367(b) nonetheless bar supplemental jurisdiction in this case? a. Diversity Claim? Is the court's jurisdiction based solely on diversity? i. No. If not, 1367(b) will not prevent supplemental jurisdiction.

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ii. Yes. If so, proceed to next question. b. Supplemental Claim by Plaintiff? Does the supplemental claim at issue consist of a claim by a plaintiff or by prospective plaintiffs joining the case under Rule 19 or 24? i. No. If the claim is not made by a plaintiff of any kind, then 1367(b) will not prevent supplemental jurisdiction. ii. Claim by a Rule 19 or 24 Plaintiff. If the claim is by a plaintiff joined under Rule 19 or Rule 24, the claim will not quality for supplemental jurisdiction if such jurisdiction would be inconsistent with the requirements of the diversity jurisdiction statute. iii. Claim by a Plaintiff. If the claim is by an existing plaintiff, then proceed to the next question. c. Against Certain Joined Parties? Js the claim against persons made parties under Rule 14, 19, 20, or 24? i. No. lf not, 1367(b) will not prevent supplemental jurisdiction. ii. Yes. If so, supplemental jurisdiction is not permissible 3. Discretionary Basis for Denial of Jurisdiction? If 1367(b) is not an obstacle, are one of the circumstances of 1367(c) present such that supplemental jurisdiction should not be exercised? a. b. Novel State Issue. Does the supplemental claim involve a novel or complex state issue? State Claim Predominates: Does the state claim substantially predominate over the federal claim (e.g., the bulk of the evidentiary showing will relate to state issues; the federal claim is minor compared with state claims)? Federal Claims Dismissed. Have the federal claims been dismissed? Other Circumstances. Are there other exceptional circumstances that would suggest that the supplemental claims should not be heard in federal court (e.g., jury confusion)?

c. d.

C. REMOVAL JURISDICTION if the case has already been filed in state court, is there a basis for removing some or all of the claims to federal court? 1. Original Jurisdiction - would the federal district courts have original jurisdiction over the plaintiff's claims if they were filed in federal court? 28 U.S.C. 1446(a). a. Yes. If so, the case may be removable, provided other requirements are met. Proceed to the next question if the case is a diversity action; proceed to Part C.5 if jurisdiction would be based on the presence of a federal question. No. If not, the case is not removable.

b. 2.

Diversity Basis - if the claim could have been brought in federal court based only on diversity, is the defendant who is seeking removal a citizen of the state where the case has been brought? 28 U.S.C. 1441(b). a. b. Yes. If so, removal is impermissible. No. If not, removal may be possible. Proceed to the next question.

3.

Time Limit - have 30 days passed since the defendant received service of the initial pleading setting forth the removable claim or notice of a change in the removability of the case? 28 U.S.C. 1446(b). a. b. Yes. If so, then the defendant has waived the right to remove the case. No. If not, proceed to the next question.

4.

Defendant Unanimity - have all of the defendants agreed to removal? Chicago, Rock Island & Pacific R. Co. v. Martin, 178 U.S. 245 (1900). a. b. No. If not, the court will remand after removal. Yes. If so, removal will be permissible.

5.

Federal Question Basis - if the claim could have been brought in federal court based on federal question jurisdiction, then the claim is removable, provided there is defendant unanimity & the 30 day time limit for removal has not expired. Check to see whether there are separate & independent non-federal claims that can be removed along with the federal claim.

47

6.

Motion to Remand - if an action has been removed can a party seek to remand the case to state court? Only if a' motion to remand is filed within 30 days of the filing of the notice of removal.

SUBJECT MATTER JURISDICTION POINTS TO REMEMBER

For diversity jurisdiction there must be complete diversity, meaning no plaintiff may be from the same state as any defendant; thus, be sure to check the citizenship of all parties on all sides. Remember that the amount in controversy must exceed $75,000; thus, claims for $75,000 will be insufficient. When aggregating claims to achieve the jurisdictional amount in controversy involving either multiple plaintiffs or defendants, only do so when the multiple parties are suing jointly on an undivided interest or are being sued jointly. The defendant's claim or defenses cannot form the basis for federal question jurisdiction nor can they be the basis for removal jurisdiction. Both types of jurisdiction must be based on the plaintiff's complaint. Where diversity serves as the sole basis of jurisdiction, remember to analyze both 1367(a) & (b) to determine if supplemental jurisdiction is proper. Where the supplemental claims are by plaintiffs against certain joined parties (parties joined under Rules 14, 19, 20, or 24) or by plaintiffs to be joined under Rules 19 or 24, the claims will not qualify for supplemental jurisdiction if jurisdiction over such claims would be inconsistent with the requirements of diversity jurisdiction.

VENUE CHECKLIST
A. WAIVER - has the party challenging venue waived the challenge? If so, then venue is proper. 1. Forum Selection Clause - is there a forum selection clause that covers the situation & binds the parties involved? Such a clause would typically prevent a party from challenging venue that is proper under the clause Failure to Object - has the party challenging venue already made a response to the complaint without challenging venue such that the challenge is waived under Rule 12(h)?

2.

B. SPECIAL VENUE STATUTE - is there a special venue statute that applies? If so, then venue must be evaluated under the special statute, not 1391. 1. Title 28 - is there a provision within Title 28 that carves out special venue provisions for certain types of cases? a. b. c. d. 2. United States as Defendant - is this a suit against the United States? If so then venue is governed by 1402. Federal Interpleader - is this a federal interpleader action? If so, then venue is governed by 1397 Copyright & Patent Actions - is this a copyright or patent action? If so then venue is governed by 1400. Shareholder Derivative Suit - is this a shareholder derivative suit? If so then venue is governed by 1401.

Other Federal Statute - is this a case. arising under a particular federal statute? If so, the provisions of that statute should be consulted to determine whether it includes a special venue provision.

C. GENERAL VENUE STATUTE if no waiver has occurred & no special venue provision applies, then apply the general venue statute (28 U.S.C. 1391). 1. First test under the general venue statute: Do all the defendants reside within the same state? a. Identify the residency of each defendant. i. Individuals - residency is equated with citizenship (domicile).

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ii. Corporations - resident in districts where they are subject to personal jurisdiction. For multi-district states, resident only in those districts where they would be subject to personal jurisdiction were the district a separate state. b. c. 2. If all defendants reside in the same state, venue is proper in a district where any of the defendants reside. Continue on to the next test because it could possibly present another viable alternative venue.

Second test under the general venue statute: Is there a district where a substantial part of the events or omissions giving rise to the claim took place or where property that is the subject of the action is located? a. b. Yes. If so, venue is proper in any such districts. No. If not, & venue could not be determined based on the first test, proceed to determine whether venue is possible under the fallback provision.

3.

Fallback Provision - if no proper venue can be identified based on..the first two tests, then determine venue with reference to the fallback provisions of 28 U.S.C. 1391 (28 U.S.C. 1391 (a)(3) & (b)(3)). a. b. Diversity Cases - if this is a diversity-only case, is there a district where any defendant is subject to personal jurisdiction? If so, venue is proper in any of those districts. Non-Diversity Cases - if this is not a diversity-only case, ask whether there is a district where any defendant can be found? If so, venue is proper in any of those districts.

D. Transfer of Venue - if venue is improper, can the case be transferred to another district? 28 U.S.C. 1404, 1406. 1. Jurisdiction & Venue in Transferee Court? Is the transfer being made to a district, within the same judicial system, where the action could have been brought initially? a. b. 2. No. If not, then the case may not be transferred to that district. Yes. If so, proceed to the next question.

Convenience & Justice? Would a transfer be [f]or the convenience of the parties & witnesses & in the interest of justice? If so, then the court may transfer the case to' the other district.

E. Forum Non Conveniens - Have the two prerequisites for a dismissal on forum non conveniens grounds been met? 1. Adequate Alternate Forum - is there a forum outside of the federal system that is available for the prosecution of plaintiff's claim? If no adequate alternate forum exists, a dismissal for forum non conveniens is not proper. Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). a. Unfavorable Law - will the plaintiff face less favorable law in the alternate forum? If so, that is no impediment to recognition of the forum as a viable alternative. Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). Bar to Relief - are the doors to the courts virtually closed to the plaintiff for some reason, preventing the ability to seek relief in the alternate venue? If so, then the alternate venue might not qualify as an adequate available alternative.

b.

2.

Public & Private Interests - do private & public interests weigh in favor of having the case heard in the alternate forum? Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). a. Private Interest Factors - the following factors should be used to evaluate the viability & desirability of hearing a case in a proposed alternate forum: i. Location of the events giving rise to the case; ii. Availability of compulsory process for attendance of the unwilling; iii. Ability to implead other parties in the court; iv. Ability to take a view of premises involved in the dispute ; v. Ease & cost of access to sources of proof, which depends on the location of relevant witnesses & documentary evidence; & enforceability of a judgment if one is obtained. b. Public Interest Factors - the following factors reflect interests of the government & local community of the proposed alternate forum that should be considered in determining whether hearing the case in that forum would be desirable:

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i. Whether the dispute involves local people or events; & ii. Whether the dispute is likely to be decided under the local law of the forum.

VENUE POINTS TO REMEMBER

Always check to see if any venue objections have been waived by consent or under Rule 12(h). Defendants must all reside in the same state for venue to be proper based on their districts of residence. Sections 1391 (a)(3) & (b)(3) are fallback provisions, meaning these provisions may only provide the basis for venue where the other provisions fail to identify any proper venue. Transfers of venue are only proper to judicial districts within the same Judicial system where the case could have originally been brought. Forum non conveniens dismissals are only proper where the more appropriate forum is outside of the judicial system where the case was filed. The court systems of each state, the federal courts, & foreign courts are all part of separate judicial systems.

ERIE DOCTRINE CHECKLIST

A. DIVERSITY ACTION - is this a federal question case or a diversity case? There is no need to conduct an Erie or Hanna analysis for federal question cases. (If there are both diversity & federal question claims within a single action, the Erie doctrine applies to the determination of what law to apply to the diversity claims). If this is a diversity case, then proceed to the next question. B. PRESENCE OF A FEDERAL RULE OR STATUTE Hanna instructs that the initial question should be whether the issue before the court is potentially covered by a Federal Rule of Civil Procedure or federal statute as opposed to an uncodified federal practice. 1. 2. Federal practice not embodied in a statute or rule where no federal rule or statute is at stake, the federal practice will have to be evaluated with reference to the Erie analysis below in Part E. Federal practice embodied in a statute or rule - if there is either a federal statute or rule in the picture, proceed to the next question.

C. CONTROLLING FEDERAL RULE OR STATUTE is the federal rule or statute sufficiently broad to control the issue before the court? Walker v. Amco Steel Corp., 446 U.S. 740 (1980). That is, is the federal rule or statute intended or designed to govern the issue at hand such that the rule's purposes would be served by applying it? 1. 2. Not Controlling - in the absence of a controlling federal rule or statute, the determination of whether to apply state law must be made with reference to the Erie analysis below in Part E. Controlling - if the federal rule or statute is controlling of the issue before the court, proceed with the Hanna analysis. Direct Conflict- is the applicable federal rule or statute in direct collision with the law of the relevant state? Hanna v. Plumer, 380 U.S. 460 (1965). a. b. 2. No Direct Conflict - if there is no direct conflict between an applicable federal rule or statute & state law then the federal law should be applied & no further analysis is required. There is a Direct Conflict - if there is a direct conflict between an applicable federal rule or statute & an otherwise applicable state law, then proceed to the next question.

D. HANNA ANALYSIS 1.

Constitutionality of the Federal Rule or Statute - does the rule regulate matters that are procedural or capable of being classified as either substantive or procedural? To determine whether a federal rule really regulates procedure ask whether the rule regulates the judicial process for enforcing rights &

50

duties recognized by substantive law & for justly administering remedy & redress for disregard or infraction of them. Sibbach v. Wilson & Co. 312 U.S. 1 (1941). a. b. The Rule/Statute Regulates Substance - if the federal rule or statute at issue regulates clearly substantive matters, then it may not be enforced in lieu of conflicting state law. The Federal Rule/Statute is Procedural - if the rule or statute regulates procedural matters, or if it can be classified as both procedural & substantive, then the constitutional standard is satisfied. i. Federal Statute? If a federal statute is at issue, & it has been deemed to be procedural, there is no need to determine compliance with the Rules Enabling Act. The analysis is complete & the federal statute should be applied. Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22 (1988). ii. Federal Rule? If a Federal Rule is at issue, proceed to the next question. 3. Compliance with the Rules Enabling Act - if a Federal Rule is at issue, does the rule comply with the Rules Enabling Act? a. Rules Defining Legal Rights - does the Federal Rule define legal rights or simply define. the judicial process by which such rights are enforced? i. Defines Legal Rights - if the Federal Rule defines legal rights, then it is substantive & may not be applied in lieu of an applicable state law. ii. Defines Enforcement of Rights - if the Federal Rule merely pertains to the means of enforcing legal rights, then it is procedural. Proceed to the next question. b. Abridgement of State Substantive Rights - does the Federal Rule "abridge, enlarge or modify" any substantive right? i. No. If not, the rule complies with the Rules Enabling Act & is valid. The federal rule should be applied. ii. Yes. If so, proceed to the next question. c. Procedural interests Advanced? If it appears that substantive rights are modified, can it be said that the Federal Rule advances clear procedural interests & only incidentally affects litigants' substantive rights? .Burlington Northern Ry. v. Woods, 480 U.S. 1 (1987). i. Yes. If so, then the rule complies with the Rules' Enabling Act & is valid. The federal rule should be applied. ii. No. If not, the rule violates the Rules Enabling Act & should yield to conflicting state law. E. ERIE ANALYSIS - if no federal statute or Rule covers the issue before the court, then the question becomes, Should the federal practice in question or the conflicting state practice be applied? 1. Substance v, Procedure Test - can the issue be readily labeled as substantive & thus beyond the scope of federal courts to regulate within states? a. Substantive Rules of Common Law - do the conflicting rules prescribe substantive duties & obligations, such as those embodied in the law of torts, contracts & property, as opposed to the mere form & mode of enforcing those duties & obligations? i. Yes. If so, the federal standard may not be applied & must yield to conflicting state law, regardless of whether the state law is embodied in statutes or the decisions of state courts. ii. No. If not, then the next set of questions must be considered to determine which standard should be applied. 2. Modified Outcome-Determinative Test - if the competing state & federal standards are not readily susceptible to classification as either substantive or procedural, then the outcome-determinative test as modified by Hanna should be applied. a. Forum Shopping Encouraged? Would application of the federal standard impact a plaintiff's decision regarding whether to file suit in federal or state court? i. Yes. If so, the Erie policy of discouraging forum shopping is disserved. Proceed with the Byrd balancing approach to determine if there are any countervailing federal policies

51

that warrant application of the federal standard notwithstanding its promotion of forum shopping. ii. No. If not, proceed to the next question. b. Inequitable Administration of the Laws Likely? Would application of the federal standard result in "substantial" variations between outcomes in state & federal courts? i. Yes. If so, the Erie policy of avoiding inequitable administration of the laws is disserved. Proceed with the Byrd balancing approach to determine if there are any countervailing federal policies that warrant application of the federal standard notwithstanding its promotion of inequitable administration of the laws. ii. No. If not, then neither of the twin aims of Erie are implicated & the federal practice should be followed. 3. Byrd Balancing Approach - outcome determinativeness must be evaluated against the substantive policy interests furthered by the respective state & federal practices. To do so, ask the following questions: a. State Substantive Policy Furthered? Is the state practice bound up with the definition of the rights & obligations of the parties, such that the practice furthers some substantive state policy? i. Yes. If so, then it must be determined whether there is a countervailing federal policy that would warrant application of the federal practice. Proceed to the federal interest analysis below. ii. No. If not, then the presence of a federal policy that will be furthered by application of the federal rule will allow the court to ignore the state practice. Proceed to the next question. b. Countervailing Federal Interest? Does the federal practice promote an important federal substantive policy interest that outweighs the significance of the state policy underlying the state practice? i. Yes. If there are important substantive policy interests that are furthered by the federal practice that are more important than the state interests at stake, the federal practice should be followed. ii. No. If there are only slight federal substantive policy interests at stake as compared with the substantive policies furthered by the state practice, the state practice should be followed.

THE ERIE DOCTRINE POINTS TO REMEMBER

An Erie analysis is necessary only for claims based on diversity jurisdiction. Always determine first whether there is an applicable, controlling federal rule or statute before conducting further analysis; this question determines whether an Erie analysis or a Hanna analysis is necessary. Federal rules & statutes are generally going to be deemed to be valid & constitutional once the Hanna analysis gets to that point. Thus, the critical issue typically is the determination of whether the rule or statute applies & controls the issue at hand. For an Erie analysis, take the time to go through all three analytical approaches (substance v. procedure; modified outcome- determinative test; & the Byrd balancing approach)

PLEADINGS CHECKLIST
A. ADEQUACY OF THE COMPLAINT - is the complaint (or answer setting forth counterclaims) sufficient under the Federal Rules?

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1.

Jurisdiction - does the complaint adequately allege the grounds for the court's subject matter jurisdiction? a. Diversity Jurisdiction - if diversity of citizenship is alleged as the basis for jurisdiction over a claim, does the face of the complaint reveal the complete diversity of citizenship of the adverse parties in the case & satisfaction of the required amount in controversy? If so, the jurisdictional allegation is sufficient. Federal Question Jurisdiction - if diversity of citizenship is not alleged as the basis for jurisdiction, does the complaint allege some federal law or constitutional provision or treaty out of which the claim arises? If so, the jurisdictional allegation is sufficient. Supplemental Jurisdiction - if neither diversity of citizenship nor a federal question is alleged to support the jurisdiction over the claim, does the complaint allege the existence of original (diversity or federal question) jurisdiction over other claims & supplemental jurisdiction with respect to this claim? If so, the jurisdictional allegation is sufficient.

b.

c.

2.

Statement of the Claim - does the complaint adequately state a claim showing that the pleader is entitled to relief? a. Special Matters - does the pleading aver fraud or mistake? i. Yes. If so, are the circumstances constituting fraud or mistake stated with particularity? See FRCP Appendix Form 13 (example of fraud allegation). If not, then the pleading is insufficient. FRCP Rule 9(b). ii. No. If not, the general pleading standard of Rule 8(a) (2) applies. Proceed to the next question. b. All Other Claims - does the pleading give the adverse party fair notice of what the plaintiff's claim is & the grounds upon which it rests? Conley v. Gibson, 355 U.S. 41 (1957). Ask 2 questions: i. Is the defendant given enough information to figure out what the plaintiff is generally alleging? If so, proceed to the next question. ii. Does the claim as plead, if true, entitle the plaintiff to relief? If so, then the pleading standard of Rule 8(a) has been satisfied. iii. One should also check to see whether the pleading party has used one of the official forms in the Appendix to the Federal Rules. If so, Rule 84 declares these Forms to satisfy the requirements of the Rules & the complaint is therefore adequate. c. Admissible Evidence Question - sometimes the question you face on an examination may be phrased as, Can a party present evidence on a particular claim? i. Where that is the question, answer it by first asking, Did that party adequately plead the claim as required under the Rules? Yes. Refer to Parts A.2.a & A.2.b above. If the matter was properly pleaded, then the party may introduce evidence pertaining to that matter. No. If the matter was not properly pleaded as required by the Rules, proceed to the next question.

ii. Prejudice. Would the adverse party be unfairly prejudiced by permitting the admission of the evidence at this time? 3. Yes. If unfair prejudice or surprise would result from the admission of the evidence on matters not properly pleaded, the evidence should be excluded. No. If no prejudice would result from admission of the evidence, the court may choose to allow the evidence to be submitted.

Damages - does the complaint adequately demand judgment for the relief the pleader seeks? An alternative form of this question may be whether the plaintiff may recover for certain damages? The answer to this question will depend on whether the damages were sufficiently pleaded under the Federal Rules. a. General Damages/Relief - are the damages being recovered for injuries pleaded in the complaint? i. Yes. If so, the complaint supports the damages award.

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ii. No. If not, proceed to next question to determine whether the damages should be considered special damages. b. Special Damages - if the damages being sought at trial are challenged as being special damages that should have been separately pleaded, the question becomes whether the damages at issue were indeed special under the rules. i. Natural & Foreseeable? Are the damages the natural, foreseeable, or inevitable result of injuries or events mentioned in the complaint? No. If the damages are not natural & foreseeable but rather are unpredictable, they may be considered special damages & will have to be specifically stated in the pleading to be pursued. FRCP Rule 9(g). Yes. If the damages are natural & foreseeable, they should not be considered special damages & the complaint will support the' recovery of the damages.

c.

Permissible Award - beyond the adequacy of the pleading, a question may arise as to whether the party may be awarded relief beyond that prayed for in the demand for relief. To answer this question, ask, Is relief being granted pursuant to a default judgment? i. Yes. If so, then relief is limited to the relief prayed for in the demand for judgment. FRGP Rule 54(c). ii. No. If not, then the final judgment can grant all relief to which the party is entitled based on the evidence. Some courts may evaluate whether the adverse party would be prejudiced unfairly by allowing a recovery for a substantially different degree of relief. See, e.g., Bail v. Cunningham Brothers, Inc., 452 F.2d 182 (7th Gir. 1971).

B. ADEQUACY OF THE ANSWER - is the defendant's answer (or the, plaintiff's reply) sufficient under the Federal Rules? 1. Timeliness - was the answer filed within the required time period under Rule 12(a)? a. b. 2. Waiver of Service - has the defendant waived service pursuant to a request under Rule 4(d)? If so, the defendant has 60 days to respond (90 days for foreign defendants). Service of Summons - if the defendant was served with process, the defendant has 20 days to respond unless granted an extension by the court or through consent of the adverse party. Express Admissions - does the answer explicitly admit an allegation or set of allegations? i. Yes. If so, those allegations are admitted & the defendant cannot introduce evidence seeking to disprove those allegations unless an amendment is permitted (see Part C below). ii. No. If not, proceed to the next question. b. Implicit Admission - are there allegations to which the defendant does not respond? i. Yes. If so, those allegations will be deemed admitted, see FRCP Rule 8(b), & the defendant cannot introduce evidence seeking to disprove those' allegations unless an amendment is permitted (see Part C below). ii. No. If not, & no express admission is offered, then you are dealing with a denial. Proceed to the next question to determine whether the defendant has effectively denied the allegations in question. 3. Denials - are the defendant's denials sufficient to deny the averments made in the complaint? If not, the defendant cannot introduce evidence seeking to disprove the ineffectively denied allegation unless an amendment is permitted (see Part C below). a. General Denial - did the defendant set forth a general denial? i. Yes. If so, is there any portion of the allegations that were generally denied that are manifestly true or that the denying party knew was true when they denied it? Yes. If so, the general denial will be deemed to be ineffective & the allegations will be deemed admitted. The defendant cannot introduce evidence seeking to disprove the ineffectively denied allegation unless an amendment is permitted (see Part C below).

Admissions - are there allegations that the defendant has expressly implicitly admitted? a.

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No. If not, the general denial is effective to deny all of the allegations to which it pertains.

ii. No. If no general denial is involved, proceed to the next question. b. Lack of Information - if the answer pleads a lack of information sufficient to form a belief as to the truth or falsity of an allegation, is the matter presumptively within defendant's knowledge? i. Yes. If so, then such a response is impermissible under Rule 8(b). The response will be treated as an admission. The defendant cannot introduce evidence seeking to disprove the relevant allegation unless an amendment is permitted (see Part C below). ii. No. If not, then such response is permissible under Rule 8(b). It will be treated as a denial. c. Negative Pregnants & Conjunctive Denials - is the denial so specific that it leaves open the possibility of the allegation being true in a technically different respect? If so, such denials may be viewed as evasive & thus ineffective. Specific Denials - if none of the above defects exist & specific denials are made, then the answer effectively meets the allegations of the complaint & the denied allegations will be properly placed before the finder of fact for resolution.

d.

4.

Affirmative Defenses - if a defendant seeks to introduce evidence pertaining to an affirmative defense, the question will be, Has the defendant sufficiently pleaded the defense in its answer? a. Affirmative Defense? Is the defense to be treated as an affirmative defense? i. Rule 8(c) - is the defense listed in Rule 8(c) as one of the affirmative defenses that must be set forth? Yes. If so, it must be set forth affirmatively in a responsive pleading. No. If not, proceed to the next question.

ii. Substantive Law - does the applicable substantive law define the defense as an affirmative defense? Yes. If so, it must be set forth affirmatively in a responsive pleading. No. If not, proceed to the next question.

iii. Definitional Approach- does the defense seek to controvert plaintiff's cause of action or provide an excuse or justification that absolves the defendant of liability? Ordinary Defense. If the defense merely controverts an aspect of the plaintiff's cause of action, then an ordinary defense is involved. Affirmative Defense. If the defense provides an excuse or justification that absolves the defendant of liability, it is an affirmative defense that must be set forth affirmatively in a responsive pleading. If the defense limits liability without absolving or avoiding liability altogether, some courts may consider the defense to be an affirmative defense, others may not. Compare Ingraham v. U.S., 808 F.2d 1075 (5th Cir. 1987) (treating a limitation of liability as an affirmative defense), with Taylor v. U.S., 821 F.2d 1428 (9th Cir. 1987) (declining to treat a limitation Of liability as an affirmative defense).

b.

Ordinary Defense - if the defense is not classified as an affirmative defense under one of the above formulations, but rather is a defense that logically flows from plaintiff's allegations, then evidence supporting the defense is admissible under the denials provided in the answer. (Example: the defense that there is no contract in a breach of contract action is not an affirmative defense & thus need not be set forth affirmatively).

C. AMENDMENTS - is the proposed amendment proper under the Federal Rules? 1. Amendment as a Matter of Course - is the amendment one the party is entitled to make as a "matter of course" without leave of the court under Rule 15{a)? a. Response Permitted - if a responsive pleading is permitted, then the question is has the permitted responsive pleading been filed yet?

55

i. No. If the responsive pleading has not yet been filed, the party may amend the pleading without leave of the court. ii. Yes. If the responsive pleading has been filed, then it is too late for the party to amend the pleading without leave of the court or consent of the adverse party. Proceed to Part C.2 to determine whether the amendment can be made with leave of the court. iii. Motions. Motions are not considered pleadings under the Federal Rules. Thus, the filing of a pre answer motion in response to a pleading does not count as a responsive pleading for the purpose of applying Rule 15(a). b. Response Not Permitted - if the pleading to be amended is one to which a responsive pleading is not permitted the question is, Has 20 days passed since the filing of the pleading to be amended? i. Yes. If so, then it is too late to amend the pleading without leave of the court or consent of the adverse party. Proceed to Part C.2 to determine whether the amendment can be made with leave of the court. ii. No. If not, the party may amend the pleading as a matter of right without the court's permission. 2. Amendment Not as a Matter of Course - if a party is not entitled to make the amendment as a matter of course, should the amendment be permitted? a. Consent - has the adverse party consented to the amendment? i. Yes. If so, the amendment should be permitted. ii. No. If not, permission of the court will be required. Proceed to the next question. b. Leave of the Court - should the court permit the amendment? This question is answered by asking, Will the interests of justice be furthered by permitting the amendment? Yes answers to either of the following questions raise the possibility that justice will not be served by permitting the amendment (the court could still permit the amendment in its discretion). i. Prejudice. Will the adverse party be unfairly prejudiced by permitting the amendment? ii. Bad Faith. Is the failure to present the information contained in the amendment earlier due to bad faith intentional delay? 3. Amendment to Conform to Evidence - if the amendment seeks to conform a pleading to evidence presented or sought to be presented at trial, should such an amendment be permitted? a. Consent - have the parties expressly or impliedly consented to trying the issues not raised in the pleadings that are raised in the amendment? i. Express Consent - the parties may have expressly agreed to try certain issues not raised in the pleadings. If so, then the amendment is permissible. ii. Implied Consent - can consent of the parties be implied? Ask, Was any objection raised to the introduction of evidence having no relevance to issues raised in the pleadings? No. If no objection was raised, that is strong evidence of implied consent. Yes. If an objection was raised, then no consent may be implied. The court will have to resolve whether the amendment should be permitted. Proceed to the next question.

b.

Leave of the Court - should the court grant an amendment to conform pleadings to the evidence in the face of an objection? This question is answered by asking, Would the objecting party be prejudiced by permitting the amendment? i. Yes. If the objecting party would be unfairly surprised & prejudiced in its ability to maintain their action or defense, the amendment should not be permitted. ii. No. If the objecting party would not be unfairly prejudiced by permitting the amendment, then the court should permit the amendment.

D. RELATION BACK OF AMENDMENTS if an amendment is proper & has been allowed, does it relate back to the time of filing? 1. Statute of Limitations Law - does the law providing the statute of limitations applicable to the action perrnit relation back under the circumstances? FRCP Rule 15(c) (1).

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a. b.

No. If not, proceed to the next question to determine whether relation back is possible under another provision of Rule 15. Yes. If so, & the statute of limitations is supplied by state law, ask whether the state rule should be followed in the face of a conflicting result from application of the other provisions of Rule 15(c). Shades of Erie come into play here: i. Diversity Cases - in diversity actions, the state practice most likely should be followed, but it is a fair question to ask whether Rule 15(c) (2) or Rule 15(c) (3) is an applicable & valid Federal Rule that should be applied to the facts under Hanna (see Chapter 5 for explanation of the Hanna analysis)', ii. Federal Question Cases - the better practice is probably to apply the federal standards, However, where federal law incorporates state statute of limitations law, & that law permits relation back, a fair question is whether the state law or one of the other provisions of Rule 15(c) applies. See, e.g., Worthington v. Wilson, 790 F. Supp. 829 (C.D.1ll. 1992). iii. NOTE: This is a general analysis that simply raises the issues. Resolution of the question may require a full Erie analysis but more likely in an examination a simple mention of these issues will do in the context of a pleadings question. [Check with your professor to learn his or her views on this issue].

2.

Amendment Involving Claim or Defense if the amendment involves a claim or defense, does it arise out of the same conduct, transaction, or occurrence set forth in the original pleading? a. b. No. If the claim or defense pertains to separate events (a distinct transaction or occurrence), it does not relate back to the time of the original pleading. Yes. If the claim or defense arises out of the same transaction or occurrence, then it relates back to the time of the original pleading.

3.

Amendment Involving a New Party - if the amendment seeks to change the party against whom a claim is asserted the answer to each of the following questions must be yes to permit the amendment to relate back: a. Satisfaction of Rule 15(c)(2) - are the requirements of Rule 15(c) (2) satisfied? See analysis supra at Part D.2. i. No. If not, the amendment may not relate back. ii. Yes. If so, proceed to the next question. b. Notice - did the party to be brought into the action receive, within 120 days, notice of the institution of the action such that it will not be prejudiced in mounting a defense on the merits? i. No. If not, the amendment may not relate back. ii. Yes. If so, proceed to the next question. c. Awareness of Real Party Status - did the party to be brought into the action know that but for a mistake concerning the identity of the proper party that the action would have been brought against that party? This question can be broken down into 2 separate questions: i. Did the party know that they were the intended party? No. If not, the amendment may not relate back. Yes. If so, proceed to the next question. No. If not, the amendment may not relate back. Yes. The amendment relates back to the time' of the filing of the original pleading.

ii. Was the failure to name the party originally due to a mistake?

E. RULE 11 - are sanctions under Rule 11 appropriate in this case? 1. Violation of Rule 11? Has there been a violation of Rule 11?

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a.

Pre-Filing Inquiry - did the attorney or self-represented party signing the filing conduct a reasonable inquiry into the factual & legal matters presented in the filing before submitting it to the court? FRCP Rule 11(b). i. No. If there was no reasonable pre-filing inquiry, a violation of Rule 11 has occurred. Proceed to Part E.2 to determine if sanctions can be imposed. ii. Yes. If a reasonable pre-filing inquiry has occured, then proceed to the next question.

b.

Improper Purpose - has the filing been made for an improper purpose, such as harassment, delay, or to increase the cost of litigation? FRCP Rule 11(b)(l). i. Yes. If there is evidence of improper purpose, a violation of Rule II has occurred. Proceed to Part E.2 to determine if sanctions can be imposed. ii. No. If no improper purpose is evident, then proceed to the next question.

c.

Frivolous Legal Arguments - are the legal contentions made in the filing supported by the law as it now exists or by a non frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law? FRCP Rule II (b)(2). i. Existing Law - does the filing cite to applicable law that supports the legal claims made in the filing? Yes. If so, then there is no violation of Rule 11 (b)(2). No. If not, proceed to the next question.

ii. New Law- if the filing argues for a modification of the law, is it in an area of the law that lacks current binding precedent & based on persuasive precedent from other jurisdictions or evidence of changing legal attitudes towards existing law? No. If the argument is in an area of the law where clear, recent & binding precedent controls the outcome, the argument for modification of the law is frivolous & in violation of Rule 11 (b) (2). Yes. If the argument for modification of the law is in an area where applicable law is stale & more recent indications from other jurisdictions & from within the jurisdiction suggest support for a modification of the law, then the argument is non frivolous & has sufficient support to avoid running afoul of Rule 11 (b) (2).

d.

Unsupportable Factual Allegations - do the factual allegations or denials thereof have evidentiary support or, if so identified, are they likely to have evidentiary support after further investigation? FRCP Rule 11(b)(3). i. No. If there is no current or prospective evidentiary support for a factual allegation or denial, then Rule 11 (b)(3) or (b)(4) has been violated. Also, if it turns out that no evidentiary support develops after further investigation, further advocacy of the allegation or denial constitutes a Rule 11 violation. ii. Yes. If the allegations or denials do have evidentiary support or are likely to have such support after further investigation, Rule 11 has not been violated.

2.

Sanctions - if a violation of Rule 11 has occurred can the court impose sanctions? a. Motion - has a motion for under Rule 11 been made? i. Yes. If so, have 21 days passed since the motion was served on the adverse party? Yes. If so, has the adverse party withdrawn the challenged filing? No. If not, then the motion may be filed with the court; the court may enter sanctions it feels would serve the goal of deterring future Rule 11 violations. Yes. If so, then the motion may not be filed with the court & sanctions cannot be entered on the basis of the motion.

No. If 21 days have not passed, the motion cannot properly be filed with the court & sanctions thus cannot be entered on the basis of the motion.

ii. No. If no motion has been made, proceed to the next question.

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b.

On Court's Initiative - has the court directed the attorney, law firm, or party to show cause to support a finding that it has not violated Rule 11(b)? i. Yes. If the court has directed the attorney, law firm, or party to show cause & the court finds that Rule 11 has been violated, it may enter sanctions if it feels that the goal of deterrence of future Rule 11 violations would be served. ii. No. If the court has not directed the attorney, law firm, or party to show cause, it may not declare a violation of Rule 11 & enter sanctions.

PLEADINGS POINTS TO REMEMBER

Resolving pleadings problems will require the use of legal judgment. There are not many black & white rules in this area; rather, the Rules set forth standards that require assessments of justice & a balancing of the parties' interests. Weigh the issues on each side & reach a reasoned result based on your own judgment that you can defend. Think about the pleadings material not simply from the perspective of the party making the pleading, but from the perspective of the opponent. These rules are not just a how to of pleading; they provide rules that if not followed, can prevent admissibility of evidence if objected to by the opponent. Always be on the lookout for ineffective responses to allegations. If ineffective responses or no responses are present, admissions will result, which will have implications for the admissibility of evidence. Admitted allegations cannot be contested at trial absent an amendment. Look at the pleadings requirements & amendment requirements as going hand-in-hand. If a pleading turns out to be deficient in some respect, immediately ask whether an amendment can be permitted to cure the deficiency. Remember that amendments can be made at any time, not just before trial; they can be made during & after the trial, so long as the rules for permitting amendments are satisfied. The Federal Rules heavily favor the granting of amendments in order to further the goal of resolving disputes on the merits. Thus, the degree of prejudice warranting the denial of amendment must be substantial & unfair. Be aware of potential Erie questions that could appear in the context of a relation-back question; whether an applicable state statute of limitations provision via Rule 15(c) (1) or the federal standards of Rules 15(c)(2) & 15(c)(3) govern relation back of party amendments is an issue that could be tested on an exam. Do not forget about the safe-harbor provision when considering the propriety of sanctions under Rule 11. The court cannot grant a motion for sanctions under Rule 11 if the party making the motion has not served the adverse party with the motion 21 days prior to submitting it with the court & provided the challenged filing has not been corrected or withdrawn.

JOINDER CHECKLIST
A. PERMISSIBILITY OF THE CLAIM. Is the joinder of the claim permitted under the Rules? Note: this analysis only determines whether the claim can be pleaded. A separate analysis is necessary to determine whether the court will have subject matter jurisdiction. to hear the case & venue. 1. Defending Party's Claim against Opposing Party - is the claim in question being asserted against a party who has asserted a claim against the claimant? a. b. No. lf not, proceed to Part A.2 Yes. If so, the claim may be asserted as a counterclaim. Next ask whether the claim arises out of the same transaction or occurrence as the claim asserted against the counterclaimant. This question. Is answered with reference to the logical relationship test: is there a logical relationship between the claims? Will requiring. separate trials result in duplicative multiple litigation? i. Yes. If the claims arise out of the same transaction & occurrence, the counterclaim is compulsory & must be asserted or it will be waived.

59

(This statement is made with the caveat that if adjudication of such a counterclaim would require the presence of third parties over whom the court cannot acquire jurisdiction, the counterclaim cannot be brought. Fed. R. Civ. P. 13(a).) ii. No. If the claims do not arise out of the same transaction & occurrence, the counterclaim is merely permissive & may be brought at the counterclaimants option. 2. Claim against Non-Aggressor (a party who has not asserted a claim against the claimant) - if the claim is not being made against an opposing party asserting a claim against the claimant, against whom is the claim being asserted? a. An Opposing Party Defendant - if the claim at issue is being asserted against an opposing party defendant, the claim may be joined with the claimant's original or existing claim under Rule 18(a). Co-party - if the claim is being asserted against a coparty (a party aligned on the same side of the "v,") does the claim arise out of the same transaction & occurrence as the subject matter of the original claim or a counterclaim .therein or assert that the party against whom it is asserted is or may be liable to the claimant for all or part of a claim against the claimant? i. Yes. If so, the claim may (not must) be asserted as across-claim under Rule 13(g). ii. No. If not, the claim may not be asserted as a cross-claim unless the claimant has already successfully asserted a claim against the co-party, in which case the claim at issue could be joined to that existing claim under Rule 18(a). c. Rule 14 Party- if the claim is against an existing third-party defendant, what is the party status of the claimant? i. Third-party Plaintiff - if the claimant is the third-party plaintiff, the claim at issue can be joined to the existing third-party claim under Rule 18(a). ii. Plaintiff - if the claimant is the plaintiff, does their claim against the third-party defendant arise out of the same transaction & occurrence as the plaintiff's claim against the third-party plaintiff? Yes. If so, the claim may (not must) be asserted against the third-party defendant. No. If not, the claim is not permitted under Rule 14(a). However, if the plaintiff has already successfully asserted a claim against the third-party defendant, the claim at issue can be joined to that existing claim under Rule 18(a).

b.

iii. Co-party- if the claimant is a co-party of the third-party defendant, conduct analysis at supra Part A.2.b. d. The Plaintiff by a Third-Party Defendant - if the claim is by a third-party defendant against the plaintiff, does the claim arise out of the same transaction & occurrence as the plaintiff's claim against the third-party plaintiff? i. Yes. If so, the claim may (not must) be asserted against the plaintiff. ii. No. If not, the claim is not permitted under Rule 14(a). However, if the third-party defendant has already successfully asserted a claim against the plaintiff, the claim at issue can be joined to that existing claim under Rule 18(a). e. Rule 19 or 24 Party - the permissibility of claims against such parties depends on their status in the lawsuit once joined. Determine which of the abovementioned party-classifications properly describes the position of the party in the action & apply that analysis.

B. PERMISSIVE PARTY JOINDER. Is the joinder of a party permissible? 1. Joinder of Defendants - is the plaintiff asserting against the defendants a right to relief arising out of the same transaction & occurrence & involving a common question of law or fact? a. b. 2. Yes. If so, the plaintiff may join the defendants in a single action under Rule 20(a). No. If not, the plaintiff may not join the defendants together in a single action.

Joinder of Plaintiffs - are the plaintiffs asserting a right to relief arising out of the same transaction & occurrence & involving a common question of law or fact?

60

a. b. 3. a.

Yes. If so, the plaintiffs may join together in a single action under Rule 20(a). No. If not, the plaintiffs may not join together in a single action. No. If not, the party may not implead a non-party into the action as a third-party defendant under Rule 14(a). Proceed to Part C to determine whether the party can seek compulsory joinder of the party through Rule 19. Yes. If so, is the party seeking to assert against the non-party a claim that the non-party is liable to the impleading party for all or part of the plaintiff's claim against the defending party? i. Yes. If so, the claim is a proper & can properly be asserted against the non-party. The non-party becomes a third-party defendant. ii. No. If not, the party will not be able to implead the non-party into the action as a thirdparty defendant.

Joinder of Non-Parties - is the party seeking joinder a defending party?

b.

4.

Joinder by Non-Parties - if the party seeking joinder is a non-party, do they have a right to intervene under Rule 24(a) (2)? a. Interest in Action. Does the non-party have an interest in the subject of the action? i. No. If not, the non-party has no right to intervene under Rule 24(a) (2). Proceed to Part B.4.d to determine whether (heir intervention is permissible. ii. Yes. If so, proceed to the next question. b. Impairment to Interest. Would disposition of the action impair the non-party's ability to protect their interest? i. No. If not, the non-party has no right to intervene under Rule 24('1.) (2). Proceed to Part B.4.d to determine whether their intervention is permissible. ii. Yes. If so, proceed to the next question. c. Adequate Representation of interest. Is the non partys interest adequately represented by existing parties? i. Yes. If so, the non-party has no right to intervene under Rule 24(a) (2). Proceed to Part B.4.d to determine whether their intervention is permissible. ii. No. If not, & the previous questions have been answered affirmatively, the non-party has a right to intervene under Rule 24(a) (2). d. Permissive Intervention - do the non-party's claim or defense & the .main action have a question of law or fact in common? i. Yes. If so, then the non-party may be permitted to intervene in the discretion of the court under Rule 24(b). ii. No. If not, the non-party is not permitted to intervene.

C. COMPULSORY PARTY JOINDER. Must a non-party be joined in an action? 1. Necessary Party Status. Is the absentee a necessary party under Rule 19(a)? a. Availability of Complete Relief - in the non-party's absence, is the court able to afford complete relief among those who are already parties to the action? i. No. If not, the non-party is a necessary party. Proceed to the feasibility analysis. ii. Yes. If so, proceed to the next question. b. Impairment to Absentee's Claimed Interest - would disposition of the action in the non-party's absence impair or impede the non-party's ability to protect their claimed interest relating to the subject of the action? i. Yes. If so, the non-party is a necessary party. Proceed to the feasibility analysis. ii. No. If not, then proceed to the next question c. Threat to Existing Parties - would disposition of the action in the non-party's absence leave existing parties subject to a substantial risk of incurring multiple or inconsistent obligations by reason of the non-parties claimed interest relating to the subject of the action? i. Yes. If so, the non-party is a necessary party. Proceed to the feasibility analysis.

61

ii. No. If not, & the previous questions have received negative responses, the non-party is not a necessary party whose joinder may be compelled under Rule 19. 2. Feasibility of Joinder - if a non-party is deemed to be a necessary party, is their joinder in the action feasible? a. Personal Jurisdiction - can the court obtain personal jurisdiction over the necessary party? Refer to the personal jurisdiction checklist in Chapter 1 for the necessary analysis. i. No. If not, then the joinder of the necessary party is not feasible. Proceed to Part C.3 to determine whether the party is indispensable. ii. Yes. If so, proceed to the next question. b. Subject Matter Jurisdiction - will the joinder of the party deprive the court of subject matter jurisdiction over the action? Refer to the subject matter jurisdiction checklist in Chapter 3 to determine whether the court would have subject matter jurisdiction over the claim. i. Yes. If the court would be deprived of subject matter jurisdiction, the joinder of the necessary party is not feasible. Proceed to Part C.3 to determine whether the party is indispensable. ii. No. If not, proceed to the next question. c. Venue - has the necessary party objected to venue? i. Yes. If so, does joinder of that party render venue improper? Refer to the venue checklist inChapter 4 for the appropriate analysis. Yes. If so, the necessary party must be dismissed from the action. Proceed to Part C.3 to determine whether the party is indispensable. No. If not, & personal jurisdiction & subject matter jurisdiction exist, the joinder of the necessary party is feasible & the party must be joined in the action.

ii. No. If the necessary party has not objected to venue, & personal jurisdiction & subject matter jurisdiction exist, the joinder of the party is feasible & the party must be joined in the action. 3. Indispensability of the Party if joinder of the necessary party is not feasible, should the court dismiss the action 'in the partys absence? a. Lessening of Prejudice. Can the prejudice to existing parties or the necessary party that would result from the necessary partys absence be lessened or avoided through protective provisions In the judgment, the shaping of relief, or other measures? i. Yes. If so, that suggests that the necessary party may not be considered indispensable; the court could retain jurisdiction over the case & 'shape relief to protect the relevant party's interests. However, this must be evaluated with reference to the next question. ii. No. If not, that would suggest the court should consider the necessary party to be indispensable. However, this must be evaluated with reference to the next question.

b.

Adequacy of Remedy. Will the judgment rendered in the absence of the necessary party be adequate from the plaintlff's perspective? i. No. If not, that favors a determination that the necessary party is indispensable. Proceed to the next question. ii. Yes. If so, that suggests that the necessary party might not be considered indispensable, if there is no prejudice or prejudice can be lessened or avoided. If prejudice cannot be avoided, proceed to the next question.

c.

Adequate Remedy Elsewhere. If the action is dismissed, will the plaintiff have an adequate remedy? i. Yes. If the plaintiff can obtain adequate relief if the action is dismissed, then that would favor a determination that a party is indispensable & the action should be dismissed.

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ii. No. If not, that suggests that the party should not be deemed to be indispensable & the action should not be dismissed.

JOINDER POINTS TO REMEMBER

Joinder is a topic where diagramming the facts will really help. Before you begin your analysis, take the time to sketch out the posture of the parties & the actions being asserted by each against the other. Recognize the connection between joinder issues & issues of subject matter jurisdiction & venue, Whether a counterclaim, cross-claim, or a claim against a third party may be heard by the court depends on whether such claims can independently satisfy the requirements of venue & subject matter jurisdiction (&, in the case of third-patty claims, personal jurisdiction). Thus, it will generally be necessary to engage in a venue or subject matter jurisdiction analysis in the context of a joinder question. Personal jurisdiction becomes a factor when new parties are being joined. Although there are several tests for determining whether a counterclaim arises from the same transaction & occurrence as an original claim, the predominant test is the logical relationship test. However, this test is interpreted in different ways by different courts, In applying the test in an examination context, always refer to the policy behind compulsory counterclaims - the avoidance of fragmented, duplicative litigation - to evaluate whether a counterclaim should be considered compulsory. Look out for co-parties who have been cross-claimed against. They are nm~ adversaries against the crossclaimant & must assert any available compulsory counterclaims.

DISCOVERY DISCOVERY CHECKLIST

A. DISCOVERABILITY - is the material requested discoverable under the Federal Rules? 1. Relevance - is the material relevant to a claim or defense of any party in the action? a. No. If the claim is not relevant to a claim or defense, it is beyond the permissible scope of discovery absent an order from the court permitting discovery of material relevant to the subject matter of the action. Yes. If the material is relevant to a claim or defense, it is discoverable, unless the court decides to limit the discovery or it is material that is protected from discovery.

b. 2.

Limitations - do circumstances exist that require the court to limit discovery of the material in question? The court is required to limit discovery if any of the following questions can be answered in the affirmative: a. b. c. d. Duplicative - is the requested material unreasonably cumulative or duplicative of material already sought & received? Less Burdensome Alternative - is the requested material obtainable from some other source that is more convenient, less burdensome, or less expensive? Missed Opportunity - has the requesting party had ample opportunity by discovery to obtain the information sought? Cost Surpasses Benefit - does the burden or expense of the proposed discovery outweigh its likely benefit? The following factors are to be considered when making this determination: i. ii. iii. iv. The needs of the case; The amount in controversy; The parties resources; The importance of the issues at stake in the litigation; &

63

v. 3.

The importance of the proposed discovery in resolving the issues.

Protective Orders - are there circumstances that would permit the court to limit the discoverability of the material through entry of a protective order? That question is answered with reference to the following question: Is there a need to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense? a. Yes. If so, the court may enter a protective order that orders anyone of the following: i. The discovery will not be had; ii. The discovery may be had only on specified terms & conditions; iii. The discovery may be had only by a method of discovery other than that selected by the party seeking discovery; iv. That certain matters not be inquired into or that the discovery be limited to certain matters; v. That the discovery be conducted with no one present except persons designated by the court; vi. That a deposition after being sealed be opened only by order of the court; vii. That a trade secret or other confidential information not be revealed or only be revealed in a designated way; or viii. That the parties simultaneously file specified documents or information enclosed in sealed envelopes as directed by the court. b. No. If there is no need for protection, the court will not enter a protective order covering the requested material.

B. ATTORNEY-CLIENT PRIVILEGE - assuming the material is discoverable & there are no limitations or protective orders imposed on discovery of the material in question, is the material privileged from disclosure? 1. Communication - does the material pertain to a communication? a. b. 2. No. If not, the information is not protected by the attorney-client privilege & will be discoverable unless work-product protection applies. Yes. If so, proceed to the next question.

Confidentiality - did the communication occur in confidence exclusive of any third parties not party to the privileged relationship? a. b. No. If not, the information is not protected by the attorney-client privilege & will be discoverable unless work-product protection applies. Yes. If so, proceed to the next question.

3.

Between an Attorney & Client - did the communication involve an attorney acting as such & their client or was the communication among the client's employees generated by or at the behest of an attorney acting as such? a. b. No. If not, the information is not protected by the attorney-client privilege & will be discoverable unless work-product protection applies. Yes. If so, proceed to the next question. No. If not, the information is not protected by the attorney-client privilege & will be discoverable unless work-product protection applies. Yes. If so, proceed to the next question.

4.

Legal Advice - was the communication for the purpose of giving, or seeking legal advice? a. b.

5.

Waiver - if the answer to each of the above questions is yes, was the privilege waived by disclosure of the communication to third parties outside of the privileged relationship? a. b. No. If not, the privilege applies to the material & it is not discoverable & need not be disclosed. Yes. If so, the privilege has been waived & may not be asserted to prevent disclosure of the material. However, proceed to Part C to determine whether work-product protection applies.

C. WORK-PRODUCT PROTECTION - is the material protected from discovery by the work-product doctrine?

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1.

Legal Thoughts - does the material contain the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of the party concerning the litigation? a. b. Yes. If so, that portion of the material may not be disclosed under any circumstances. Proceed to the next question to determine whether any remaining material must be disclosed. No. If not, proceed to the next question to see if the material is protected work product. Yes. If so, proceed to the next question. No. If not, the material is not protected by the work product doctrine.

2.

Trial Preparation - were the materials prepared in anticipation of litigation? a. b.

3.

Preparer of Material - was the material prepared by or for the party receiving the request or by or for that party's representative? a. b. Yes. If so, the material is protected work product. Proceed to the next question to determine whether the court can nonetheless order it to be disclosed to the requesting party. No. If not, the party receiving the request may not claim work-product protection over the material & will have to disclose it.

4.

Substantial Need - can the party requesting the material demonstrate they have a substantial need for the materials to prepare their case? a. b. No. If not, the party will not be able to overcome the objection that the material is protected work product. Yes. If so, proceed to the next question.

5.

Other Means - can the party requesting the material demonstrate that they are unable without undue hardship to obtain the substantial equivalent of the materials by some other means? a. b. Yes. If so, the court may order that the work product be disclosed to the requesting party. No. If not, the party will not be able to overcome the objection that the material is protected work product.

DISCOVERY POINTS TO REMEMBER

Discoverable material need not be admissible at trial. So long as the material is likely to lead to admissible evidence, it is discoverable. The scope of discoverable material extends to all material relevant to a claim or defense raised in the action. This is narrower than the pre-2000 standard of relevance to the subject matter of the action; however, the court can expand the scope of discovery to that standard upon request. Be on the lookout for waiver or lack of confidentiality for privilege questions. The presence of or disclosure to any third-parties who are not part of the privileged relationship will destroy the privilege. Work product is a broader doctrine than the attorney client privilege in that the material need not have been prepared by counsel to be protected. However, work product doctrine is weaker than the privilege in that it can be overcome if a sufficient showing is made.

PRE-ANSWER MOTIONS & SUMMARY JUDGMENT CHECKLIST

A. ABILITY TO RAISE THE DEFENSE - can the defense being asserted be raised at this time? 1. Nature of Defense - is the defense claiming lack of personal jurisdiction, improper venue, ineffective process, or ineffective service of process (the waivable defenses)? a. Yes. If so, proceed to the next question.

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b. 2.

No. If not, the defenses or objections can be raised at any time through trial. The objection that there is a lack of subject matter jurisdiction can be raised at any time.

Timing of Motion - if one of the waivable defenses is being raised, has any other defense, objection or responsive pleading already been submitted to the court? a. b. Yes. If so, the waivable defense has been waived & may not be asserted. No. If not, the defense may be raised & must be raised along with other waivable defenses a party intends to assert.

B. VALIDITY OF THE DEFENSE (FAILURE TO STATE A CLAIM) - should the motion to dismiss for failure to state a claim be granted? (Remember, the validity of the other defenses can be assessed with reference to material covered in prior chapters on personal jurisdiction, subject matter jurisdiction, & venue. A motion challenging process or service of process is simply evaluated with reference to the requirements set forth in Rule 4. A motion for judgment on the pleadings will be evaluated according to the same standards indicated here for the motion to dismiss for failure to state a claim.) 1. Factual Challenge? Does the motion challenge the factual allegations of the complaint? a. Yes. If so, the motion is not properly a motion to dismiss for failure to state a claim & may not be granted. However, if such motion s supported by affidavits or other factual evidence, the motion will be converted to a summary judgment motion. No. If not, proceed to the next question.

b. 2.

Legal Challenges - if the motion challenges the legal sufficiency of the complaint, does the complaint, assuming the allegations to be true, entitle the claimant to relief under the applicable substantive law? a. b. Yes. If so, the complaint properly states a legal claim & may not be dismissed under Rule 12(b) (6). No. If not, the complaint fails to state a claim & should be dismissed.

C. SUMMARY JUDGMENT - should the court enter summary judgment against a party? 1. Movants Party Status - is the movant the party bearing the burden of proof on the claim at trial? a. b. Yes. If so, the movant must present the court with sufficient factual evidence (from the existing record or through additional submissions) to support their claim. Proceed to the next question No. If not, the movant only has the burden of showing the court that no genuine issue of material fact exists. i. This burden may be discharged through the presentation of affidavits or other factual evidence or simply by pointing to the existing evidence & arguing that it fails to support the non-movants claim. ii. Once this is done, the non-movant has the burden of persuasion; proceed to the next question. 2. Discharging the Plaintiff's Burden of Proof - has the party bearing the burden of proof at trial pointed to or presented sufficient factual evidence to support their claim such that summary judgment should not be entered? a. Admissible Evidence - has the party carrying the burden of proof supported their claim with admissible factual evidence? i. No. If not, the party has failed to meet their burden & summary judgment should be granted. ii. Yes. If so, proceed to the next question. b. Persuasive Evidence - is the party's evidence persuasive or does the party's evidence disprove alternate reasonable explanations regarding the defendant's challenged conduct? Matsushita v. Zenith, 475 U.S. 574 (1986). i. No. If the party's evidence is unpersuasive, can be discounted, or fails to disprove more reasonable alternate explanations, a court may determine that the evidence is insufficient to create a genuine issue of material fact & enter summary judgment. ii. Yes. If the party's evidence is persuasive, proceed to the next question.

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c.

Evidentiary Standard - does the party's evidence prove their case to the degree required under the relevant evidentiary standard that would be applicable at trial? Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). i. No. If not, summary judgment should be entered against the party. ii. Yes. If so, summary judgment should not be entered against the party.

MOTIONS & SUMMARY JUDGEMENT POINTS TO REMEMBER

Always be alert for waiver when it comes to the defenses of lack of personal jurisdiction, improper venue, insufficient process, & insufficient service of process. These defenses must be raised initially together or they are waived. The motion to dismiss for failure to state a claim basically says to the plaintiff, So what? Even if what you say is true, the law does not give you any right to relief. Thus, no factual disputes are appropriately resolved here; only challenges based on legal insufficiency may be asserted via a motion to dismiss under Rule 12(b)(6). The standards surrounding summary judgment are a matter of debate, controversy, & confusion. The Celotex trilogy unquestionably altered summary judgment standards but failed to provide the clearest of guidance regarding how to make summary judgment determinations. It might be useful to articulate these issues in the context of your own analysis on an examination. Remember that the movant always has the burden of showing the basis for their motion, which means that that party must demonstrate to the court how the existing record reveals an absence of a genuine issue of material fact. If the movant does not have the burden of proof at trial, however, simply pointing to the record, without producing any additional factual evidence, will suffice to shift the burden of proof to the nonmovant. To determine the propriety of summary judgment, ask whether a jury looking at the presented evidence would reasonably be able to reach a verdict for either side in the dispute. Where one side lacks sufficient evidentiary support to permit a jury finding in their favor, a trial would be useless & summary judgment should be entered against that party. If the party bearing the burden of proof at trial identifies admissible factual evidence that supports its claim, as opposed to mere opinions or unsupported allegations, then summary judgment against that party should probably be denied. However, the Anderson & Matsushita holdings will complicate such a conclusion & should be considered/discussed in any exam answer.

CLAIM PRECLUSION CHECKLIST

a. Claim Preclusion: Is claim barred by a prior adjudication? i. Same Claim: Is current claim the same as a claim raised in the prior action? 1. Identical Claims: Are the claims exactly identical? a. Yes: Claims in both actions are the same, proceed to Same Parties. No: Proceed. 2. Transactionally Related Claims: Do the claims arise out of the same transaction or series? a. Yes: The claims in the both action are the same, proceed to Same Parties. No: Claims are not sufficiently identical to grant preclusive effect to the earlier adjudication. ii. Same Parties: Does the current action involve the same parties that were parties to and adversaries in the original action? 1. Identical Parties: Are the parties in both action identical? a. Yes: Identity of parties requirement is satisfied. Proceed to Final Judgment. No: Proceed. 2. Parties in Privity: If a party in the current action was not a party to the original action, is there a relationship between that party and a party in the original action that warrants treating the nonparty to the initial action as if it were a party?

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b.

Substantive Relationship: Is there a substantive legal relationship that unifies the interests of the nonparty and the party to the initial action? i. No: Proceed. Yes: Identity of parties requirement is satisfied. Proceed to Final Judgment. b. Representation in Prior Action: Was the nonparty represented in the prior action by a party to the initial action? i. No: Identity of parties requirement not satisfied. . Yes: Identity of parties requirement is satisfied. Proceed to Final Judgment. iii. Final Judgment: Was the prior action concluded by a final judgment on the merits? Based on the validity of the claims at issue in the case, rather than on procedural grounds. 1. Yes: Resolution is then considered a final judgment on the merits. Judgment may have preclusive effect if all of the previous requirements have been satisfied. 2. No: Case was resolved on procedural grounds, such as lack of J, improper venue, etc., and does not constitute a final judgment on the merits and has no preclusive effect given to the prior action. Issue Preclusion: Has an issue already been conclusively resolved between the parties in a prior action? i. Same Parties: Does the current action involve the same parties that were parties to and adversaries in the original action? 1. Yes: Proceed. No: Issue preclusion not appropriate. ii. Same Issue: Is the issue raised in the prior action identical in all respects to the issue raised in the current action? 1. Yes: Proceed. No: Issue preclusion not appropriate. iii. Actually Litigated and Determined: Was the issue actually litigated and determined in the prior action, meaning the issue was raised and argued by the parties? 1. Yes: Proceed. No: Issue preclusion not appropriate. iv. Necessary to the Judgment: Was resolution of the issue in question necessary to the judgment reached in the case? 1. Outcome Determinative: Would a different decision regarding the issue have affected the outcome of the case? a. Yes: Determination of the issue was necessary to the judgment and should be given preclusive effect in the subsequent action. b. No: Determination of the issue was not necessary to the judgment and it should not be given preclusive effect in the subsequent action. 2. Multiple Grounds: Is it unclear on which of the multiple grounds for relief a judgment relies? a. Yes: No preclusive effect may be given to the prior determination. b. No: If it is clear on which ground(s) the judgment relies, the determination of those issues are to be given preclusive effect.

a.

JMOL & MOTION FOR A NEW TRIAL CHECKLIST

I. Judgment as a Matter of Law & Motion for a New Trial
a. Judgment as a Matter of Law i. Timing: May JMOL be entered at this time? 1. Close of Non-Movants Case: Has party against whom JMOL be entered completed presentation of its evidence? a. No: JMOL inappropriate at this time. Yes: Proceed. 2. Submitted to Jury: Has case been submitted to jury? a. Yes: JMOL may not be entered unless: i. Jury has rendered a verdict. ii. Prior motion for JMOL was made before the case was submitted to the jury. iii. Earlier motion is now being renewed. Proceed. b. No: JMOL may be entered at this time if appropriate. Proceed. ii. Evidentiary Support: Is non-movants case supported by sufficient evidence that a reasonable jury could find in favor of that party? 1. No Evidence: Non-movant failed to present evidence establishing an essential element of their claim. a. Yes: JMOL against them is appropriate. No: Proceed. 2. Substantial Evidence: Do facts and permissible inferences point overwhelmingly in favor of one party, such that reasonable people could not arrive at a contrary verdict? View the evidence in the

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light most favorable to the party opposing the motion and resolve all credibility issues in that partys favor. a. No: JMOL should not be entered. Yes: JMOL is appropriate and should be entered against the party failing to support its case with sufficient evidence. b. New Trial i. Time Limit: Have 10 days passed since judgment was entered in the case? 1. Yes: New trial may be ordered. No: Proceed. ii. Ground: Are there grounds for ordering a new trial? 1. Legal Errors: Reversible legal error? a. Yes: Court may order new trial. No: Proceed. 2. Erroneous Jury Verdict: Does jury verdict go against the great weight of the evidence? a. Yes: Court may order a new trial. No: Proceed. 3. Excessive Verdict: Is verdict grossly excessive such that it shocks the conscience? a. Yes: Court may use remittitur to lower the awarded amount, forcing P to accept the lower amount of face an order for new trial. No: Proceed. 4. New Evidence: Has new evidence been discovered? a. Yes: Could evidence have been discovered earlier through the exercise of due diligence? i. Yes: Court should disregard the evidence and not order new trial. ii. No: Is the evidence material, in that it is likely to have an impact on the verdict? 1. Yes: Court may order a new trial in light of new evidence. No: Court should disregard. b. No: If no new evidence has been discovered, proceed. 5. Improper Jury Influence: Has a juror(s) been improperly influenced in such a way as to undermine our faith in the verdict as the product of impartial decision-making based only on the evidence presented at trial? a. Yes: Court may order new trial. No: If no other grounds for ordering new trial, court will not.

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