Civil Procedure Class Outline Dont do the triple-lundy!

Rule 1: The FRCP should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding. Rule 8: Affirmative Defenses dont forget about these and get caught up in cross and counterclaims, you have to assert these right up front when you are the defendant Contributory Negligence! Exam Tips: FIRST THING: Find the nominal party. Point them out. Cite Pete Rose. REMEMBER: This final exam should be easy. Spend most of your time pointing out and analyzing obvious stuff. That is the bulk of the exam. Just do it. No triple-lundies. Use only one-word citations. Rule 13 = heavily tested because we spent a lot of time on it If you assert a 13(a), then Penrose wants you to try to work it in for SMJ under 1331 (FQJ) or 1332 (Diversity) even though it probably fits under 1367, because the judge might look at your 13(a) and decide to call it a 13(b) Remember that due to anonymous grading, you must start from square 1, explain everything, even obvious stuff, and write clearly and concisely o State the definition from class of a compulsory counterclaim. State all definitions. Write everything out. At the time of the filing, FREEZE. FIND EVERY RULE AND FRCP THAT APPLIES + 12(b)s AND AFFIRMATIVE DEFENSES AND MAKE SURE THAT YOUR ANSWERS. If you have a traditional basis for personal jurisdiction, then do not get into International Shoe, it is either/or, not both. If you discuss Intl Shoe then always discuss MC AND TNFPSJ (The White Test) NOT just one or the other. Example of reasoning for the ACLU hypo o No office, no business, specific details on length of time, not arising out of, no intentional direction, no purposeful availment, no MC, no TNFPSJ The final will have one traditional basis of jurisdiction The final will have multiple plaintiffs and multiple defendants Always have the defendant answer and file a counterclaim The following things will undoubtedly be on the final, if you dont see them, you arent looking hard enough. Personal Jurisdiction Subject Matter Jurisdiction Venue Erie doctrine Summary Judgment Joinder of Parties o 13a, 13b, 13g, 20 and 14 these rules will all be on the final Queen Latifa she is MLB in the Pete Rose case! She is not a party-in-interest and the Artful pleading doctrine applies. (this will be a way to pick up some surreptitious points) For SMJ, make sure to list out each item! > E.g. 1 of 36

(1) loss of scholarship, $20k, (2) medical bills, 50k, etc Tips from the NASCAR session: The bare minimum for the final, the things Penrose sees in nearly every case in practice, includes PJ, SMJ, V, Erie, *, 12, 13abg, and 14. Maybes for the final are 17, 18, 22, 20. Even if the s move before trial, you still have to do a domicile analysis and explore what would happen if their move was not successful in changing their domicile. Even if it seems obvious. Hoffman v. Blaski: if you consider a transfer, then you cant transfer where could not have brought, THEREFORE, YOU NEED A DOMICILE ANALYSIS FOR EACH for diversity. FQJ will probably be on the multiple choice because you must test Erie. Following Shaffer, the law is in flux on Pennoyer part 4, so it probably wont be tested. Dont forget to SAY the basic Erie rule on the exam. Dont assume Penrose knows it. Federal courts must apply federal procedural and state substantive law. Even if somewhere is a crappy venue, do your best to fully analyze it as if you were going to conclude that it was proper you can mention convenience to ALL parties including witnesses. Look at whether some parties travel a lot and people expressing interest in visiting or not visiting. Point out all the traditional bases of jurisdiction that you can; dont skip them just because the person waived them by failing to file a 12(b)(2). The essay will have 13(a) and (g), possibly (b), 14, and 20. Rule 19 will not be on the exam and if you even mention it, then you will lose points. Removal is automatic if the reqs are met, watch for already being in fed. ct. due to removal. If moves to remand to state court, they have to be alleging no diversity or something. Maybe they want to argue that they have not changed their intent to remain indefinitely. You must file all the 12(b)s together or you waive them. Always start a Penrose PJ discussion with, Personal Jurisdiction is a courts power or authority over an individual or entity. It stems from the due process clause of the 14th/5th amendment of the constitution. It is a personal right that can be waived. (See Pennoyer, p. 76) o Even if the forum selection clause is good, you have to go on and do the other MC + TNFPSJ test, or youll get screwed on the final. Penrose wants you to assume that this is like a complaint where you argue every alternative or lose the rights to it later on. Do a thorough basic analysis and stick to McGee and Hanson and the really clearly applicable cases, make one quote that goes to the heart of the issue and move on. The One Word Rule of Personal Jurisdiction: Presence. The Blackmer Principle: All courts have personal jurisdiction over you when you have (1) a residence infact in the state AND (2) intent to remain indefinitely (measured by an objective test) The Traditional Bases of Personal Jurisdiction 1. Domicile 2. Consent o Express OR Adam principle: Filing in an unconnected jurisdiction is express consent o Implied (usually implied by law in an implied consent statute) 3. Property in-state PLUS attachment to the case before adjudication

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o Attachment requires seizure which aids in giving due process notice. This is especially required when the defendant is out-of-state and you try constructive publication notice. Pennoyer Constructive Notice (Publication) Rule: Publication is insufficient to give due process notice to a person out of state. Exceptions: Status (like marriage) AND attachment before judgment In Personam: The court exercises its power to render a judgment for or against a person by virtue of his presence within the states territory or his citizenship there. In rem: The court exercises its power to determine the status of property located within its territory, and the determination of the court is binding with respect to all possible interest holders in that property. Quasi-in-rem: Judgment for or against a person, but recovery limited to the value of property within the jurisdiction. Pennoyer was a collateral suit, i.e., it did not dispute the legal fees of the original suit. Hess Inherently dangerous activity lends itself to implied consent because (1) reciprocity of law protection and jurisdiction (2) danger to States citizens and use of States property International Shoe The Constitutional Due Process Limit to Long-Arm Statutes: Minimum contacts with the state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Rule: Exercising privilege of conducting activities within a state avails one of the benefits and protection of the laws of that state. This exercise may give rise to obligations to come back. Minimum contacts factors: 1. Nature AND 2. Quality of the contacts Minimum contacts types: General Jurisdiction: Requires contact tantamount to citizenship (Siegels) Specific Jurisdiction: Requires litigation regarding in-state activity, not unrelated matters Two Types of Long-Arm Statutes: 1. Maximum to the International Shoe limit 2. Enumerated according to the matters specified in the long-arm statute Gray v. American Radiator This is a parochial case limited to Illinois. The rule here is that if an inference can be drawn that your business results in substantial use in Illinois, then Illinois has specific jurisdiction (I think). 1/18/2010 Intl Shoe expanded on Pennoyer to add MC + TNOFPSJ to literal, physical presence McGee, p. 82 One contact is enough IF it has: o Sufficient nature o Sufficient quality Reissue of a life policy to a CA resident meets this test Hanson, p. 101 Distinguished from McGee in that no act was done or transaction consummated in forum o Court points out that solicitation in McGee is different in nature then back and forth mailing of trust documents where there is no solicitation

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The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. WWVW cited to Hanson to point out that foreseeability alone is not dispositive Defendant must have purposely availed itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. Motions 12(b)(1) motion to dismiss for lack of subject matter jurisdiction 12(b)(2) personal jurisdiction 12(b)(3) venue 12(b)(5) service 12(b)(6) state a claim upon which relief can be granted (demurrer) World-wide Volkswagen, p. 105 Justice Whites foreseeability test: The correct foreseeability test is whether the defendant reasonably would foresee himself being haled into court in the forum based on his actions. Justice Whites Five Factor Fairness Test: 1. Burden on Defendant 2. Forums interest in adjudicating 3. Plaintiffs interest in convenient and effective relief (when that interest isnt sufficiently protected by the plaintiffs power to choose the forum) 4. The interstate judicial systems interest in obtaining the most efficient resolution 5. The shared interest of the several States in furthering fundamental substantive social policies WWVW Take on Gray The stream of commerce ends at the retail sale and does not extend to products that tend to move around like cars. Penrose: But what if you know something that makes it foreseeable that the product will move to a specific forum? Keeton P does not have to have minimum contacts, period. Kulko The Divorce Case The one contact must have the appropriate nature and quality. The Effects Test: This applies only to wrongful activity without the state causing injury within it or to commercial activity affecting state residents, when application of the test is not unreasonable. Harris Rutsky, p. 119 9th Circuit three-prong effects test (misnomer because its really a purposeful direction test) (based on the Calder effects test: (1) intentional act; (2) expressly aimed at the forum; (3) causing harm, the brunt of which is suffered and which the defendant knows is likely to be suffered in the forum state Burger King (Brennan), p. 119 Nature of contact: Contract with FL Corp. with choice of law of FL + mail correspondence including payments following contractual negotiations. Quality of contact: Correspondence was substantial and continuous. A contract with a company in FL is not enough. A contract with a FL Corp. that contemplates a structured 20-year relationship involvinhg continuing and wide-reaching contacts with the FL HQ is sufficient. The contact with the FL HQ was not random, fortuitous, or attenuated. The Asahi Plurality, p. 129 OConnor, Renquist, Powell, and Scalia said foreseeable SoC meets N&Q for MC only with PA Brennan, White, Marshall, Blackmun concurrence not listed: Said no PA required.

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Stevens, White, and Blackmun concurrence listed: Stephens wanted to point out that the MC test is dicta and irrelevant to the holding because of TNFPASJ and that the PA test is flawed. 1/25/2011 General Jurisdiction Specific Jurisdiction = 98.9%; General Jurisdiction = 1.1% Perkins v. Benguet, p. 139 Penrose thinks this is the best case illustrating General Jurisdiction This is the only case where General Jurisdiction was established through the substantial systematic and continuous contacts test. (1) directors meetings; (2) business correspondence; (3) banking; (4) stock transfers; (5) payment of salaries; (6) purchasing of machinery, etc Helicopteros, p. 142 Rule: Mere purchases, no matter how many (4 mil or so) do not count as substantial for the substantial, systematic and continuous contacts test. The Supreme Court held the plaintiffs counsel to their mistake of not arguing specific jurisdiction Pebble Beach, p. 150 9th Circuit Purposeful availment = in-forum action that avails of the benefits and protection of the law Purposeful direction = the Calder 3-prong effects test, foreseeable effect + something more the third prong Burnham (Brennan style): You are using the police and the fire dept even when you stay in a hotel for the night, ipso facto, using the police means using the benes and protections of the forum laws. The Zippo Test: p. 155 1. Active websites: businesses use to carry out transactions with residents of the forum state = yes 2. Interactive websites: permit a user to exchange information with the business maybe 3. Passive websites: no reciprocal ability, no different from a billboard, no direction of contact The Step-by-Step Analysis for an Exam: 1. Personal Jurisdiction is a courts power over a person or entity. Does the court have it? 2. It emanates from 14th amendment due process. See Pennoyer. 3. There are four traditional basis for jurisdiction a. Physical Presence and service including transient jurisdiction; See Grace p. 79. b. Domicile c. Consent d. Property + Attachment + Service 4. One modern basis for jurisdiction THE LONG-ARM STATUTE (legitimized in Hess) a. Hess v. Paloski legitimized long-arm statutes b. Intl Shoe limited them by the due process test of MC + TNOFPASJ. c. This requires a long-arm statute. First, look at the statute (Max v. Enumerated) 1/27/2011 Shaffer, p. 161 Justice Marshall said that all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny. o Certain parts of his analysis starting on p. 164 III including footnote 37 p. 166 arguably indicate that the absolute language used in his conclusion came with some qualifications. Shaffer is another great example of an implied consent statute, like Hess

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o Immediately following Shaffer, Delaware enacted an implied consent statute covering anyone being a director or officer of a Delaware corporation o The consent applies to litigation related to their directorship The Burnham Plurality, p. 175 Everyone concurs that we will not do away with the traditional basis of physical presence, even the transient physical presence of Grace Scalia and Brennan are diametrically in apposition on why. Scalia salvages Pennoyers physical presence by construing Shaffer (in his typical hyperbolic manner) as only making in personam and quasi-in-rem one and the same. Brennan, of course, believes in jurisdiction mainly based on the modern convenience of travel and slightly on purposeful availment by presence. M/S Bremen v. Zapata Off-Shore Co., p. 188 Penrose, If this case didnt come out the way it did, then no one would want to do business with the U.S. Carnival, p. 189 The Forum Selection clause test: [This is a constitutional muster test] 1. It has to be conspicuous (you cant sneak it in) 2. It cant be so unfair and unreasonable as to discourage litigation (no arbitrary far-away locations) o look for ink, bold, all caps, location, etc o look at distance from other forums, reasonableness, weird stuff like fed ct. only Penrose pointed out the two-part test, but the court listed other factors on p. 189 on the last that might be worth looking at 2/10/2011 1331 = Federal question /AV (arising under) 1332 = CD + RJA Presumption: There is a presumption against the party wanting federal jurisdiction. People can have only one citizenship and it equals their domicile. Students, military, inmates what do they do for the summer, voter reg, car tags, DL, etc Corporations can have two citizenships, (1) state incorporated AND (2) principal place of business Three tests for principal place of business: 1. The Nerve Center Test: The locus of corporate decision-making authority and overall control 2. The Corporate Activities or Operating Assets Test: Greater weight is attached to the location of a corporations production or service activities in this test. 3. The Total Activity Test: This is a hybrid test; really a totality of the circumstances test. It is realistic, flexible, and nonformalistic. Unincorporated business associations are citizens where their members are citizens. p. 281 Limited partnerships are citizens where their partners are citizens. p. 282 Rose v. Giamatti rule: Federal courts only look at parties in interest and not nominal or formal parties for purposes of complete diversity. (Penrose indicated that this probably wont be on the final) Two St. Paul Mercury Rules: (1) Damages for the Amount in Controversy must be: 1. Pled in Good Faith 2. Pass the legal certainty test a. Legal Certainty: If the judge can say to a legal certainty that the damages will not be recoverable, then he can exclude them from the total amount calculation. 6 of 36

(2) The amount is measured either by: 1. The plaintiffs losses OR 2. The profits unjustly received by the defendant. ALSO 3. Punitive damages may be included if permitted under controlling law General Rule: Each plaintiff must meet the Amount in Controversy requirement for each defendant. Exception: Exxon v. Allapattah was a narrow exception for class actions only. Aggregation (probably not on final): You can aggregate unrelated claims. You cant aggregate plaintiffs, UNLESS you seek to enforce a single title or right, in which there is a common and undivided interest. E.g. If one plaintiff failed to collect his share, the others would get it. You cant subpoena someone in Alaska and force them to come to Texas to testify. Federal Question Jurisdiction Osborn, p. 297: Article III 2 limits jurisdiction to cases with a federal law ingredient. This case went as far as to indicate that any suits where the U.S. Bank was a party would have that ingredient. Mottley, p. 299: This construed 1331 and Article III differently, limiting it to the arising under test. This helped deal with the congested docket overload following the Civil War. T.B. Harms v. Eliscu, p. 303 The Holmes Creation test: The suit arises under the law that creates the cause of action. > This case seems to imply that all courts do is statutory interpretation. 02/15/2011 1331 is Federal Question Jurisdiction 1332 is Diversity Jurisdiction 1367 s Supplemental Jurisdiction (claims that do not meet 1331 or 1332) General Rule: In supplemental diversity, P cannot do through 1367 what P cannot do through 1332. In other words, you still need complete diversity.

Subject Matter Jurisdiction

This stems from Article III of the U.S. Constitution. DIVERSITY Strawbridge, p. 272 o You need complete diversity o Exception: Minimal diversity laws Federal courts have (1) judges appointed for life; (2) broader geographical range of jurors; (3) more resources; (4) arguably less frequently changing procedural rules and juridical background Mas v. Perry, p. 278 (The Domicile Rules) o The diversity must be present at the time the complaint is filed o Jurisdiction is unaffected by subsequent changes in citizenship o The burden of pleading is on the party invoking federal jurisdiction, if challenged, then that party also bears the burden of proof o Citizen of a State requires: (1) Citizen of the United States AND; (2) Domiciliary of that State o Domicile = his true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom. o Changing domicile requires (1) taking up residence in a different domicile and (2) doing so with intent to remain there o Mas overturned the classic rule that a wifes domicile is that of her husband AMOUNT IN CONTROVERSY A.F.A. Tours, Inc. v. Whittchurch, p. 285 7 of 36

Supreme Court Rule from St. Paul Mercury Indemnity Co.: The sum claimed by the plaintiff controls if o (1) The claim is apparently made in good faith. AND o (2) It appears to a legal certainty that the claim is really for less than the jurisdictional amount to justify a dismissal. The amount may be measured either by o (1) The Plaintiffs losses OR o (2) The profits unjustly received by the defendant. ALSO o (3) Punitive damages may be included if permitted under controlling law Note 7 The Value of Injunctive Relief Some courts use the rule that only the value to the plaintiff may be used. Others apply the either viewpoint rule Diversity cases generally dismiss probate and domestic-relations for lack of subject-matter jurisdiction. This interestingly stems from the idea that they only hear civil cases, not ecclesiastical cases. The Supreme Court in Ankenbrandt upheld this distinction, but limited it to divorce, alimony, or child custody. They treated domestic relations as a matter of statutory interpretation, not constitutional prohibition. FEDERAL QUESTION JURISDICTION Osborn v. Bank of the United States, p. 297 In this 1824 seminal case for federal question jurisdiction Marshall decided that when the congressional act chartering the bank authorized it to sue and be sued in any Circuit Court of the United States that this included all federal courts, period. Louisville & Nashville R. Co. v. Mottley, p. 299 Showing that a constitutional defense will probably be raised is not the same as the cause of action arising under the Constitution Though the language tracked the language of Article III, the court held that Section 1331 did not extend federal jurisdiction to the full Article III limit, but rather to the arising under test. This helped deal with the congested docket overload following the Civil War T.B. Harms v. Eliscu (2d Cir. 1964 cert. denied), p. 303 (The Creation Test) Infringement does not include everything that may impair the value of the copyright; it is doing one or more of those things which the Act reserves exclusively to the copyright owner. The case talks about the ingredient theory of Article III under Osborn The Holmes creation test: The suit arises under the law that creates the cause of action. The crucial issue is whether or not Eliscu executed the assignment to Dreyfus, and theres possibly a contractual interpretation thing in there too o These do not require an interpretation of the Copyright Act, ergo, no federal jurisdiction. This case seems to imply that all the federal courts do is statutory interpretation, this isnt true though, see E&E p. 77 n. 5 re: a fed. question dispute wholly over the facts, not the interpretation. Private Rights of Action p. 307 these are suits brought by private litigants against private persons allegedly acting in violation of a statute. Cort v. Ash, p. 307 four-part test for determining whether a private right of action should be implied from a federal statute that does not expressly provide for a private remedy 1. Is the plaintiff one of the class for whose especial benefit the statute was enacted?

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2. Is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? 3. Is it consistent with the underlying purposes of the legislative scheme to imply a remedy for the plaintiff? 4. Is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? Transamerica Mortgage v. Lewis In this case, the court backed off the Cort test and said that it is just a matter of statutory construction. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, p. 307 The court authorized a damage action against a federal official for 4th Ammendment violation despite no congressional authorization. The court instructed the Court of Appeals to develop the details on remand. Merrell Dow Pharmaceuticals Inc. v. Thompson, p. 309 (5-4 split on Fed Question) Federal question jurisdiction would exist only if plaintiffs right to relief depended necessarily on a substantial question of federal law. Cites Holmes creation test The issue of the litigation-provoking problem where a vindication of a right under state law turns on a construction of federal law The court finds that the congressional determination that there should be no federal remedy for the violation of this federal statute is tantamount to a congressional conclusion that the presence of a claimed violation of the statute as an element of a state cause of action is insufficiently substantial to confer federal-question jurisdiction. The court distinguishes Smith and Moore on p. 312 footnote 12 Dissent: (Brennan, White, Marshall, Blackmun) Under Smith, there may be federal question jurisdiction even though both the right asserted and the remedy sought by the plaintiff are state created. Brennan believes that the court decided that there is no private cause of action only because the parties made a similar assumption. Brennan points out that federal question jurisdiction and private federal remedies are not interrelated issues with the same reasons behind withholding both. Rule: State courts can hear federal cases except when the federal statute explicitly says that the cases have to be brought in federal court, see e.g., 28 U.S.C. s. 1338(a) regarding patents and copyrights 2/17/11 Supplemental Jurisdiction ( 1367) There are three doors to the federal courthouse, two front (1331 and 1332) and one back (1367) Supplemental jurisdiction requires discretion, albeit discretion cabined under the Gibbs factors Executive Software, p. 343 Rule: The court must set forth the Gibbs factors before using discretion. 1367(a) District courts have jurisdiction over related claims that are part of the same case or controversy under Article III. Penrose: There is no clear test for same case or controversy It could be (1) nucleus of facts [Gibbs] or (2) close in time or scope or space or (3) part of a continuum of events, etc 9 of 36

 1367(b) You cannot join parties if it destroys complete diversity. 1367(c) District Courts can decline supp. jur. if: 1. Novel or complex issue of State law, 2. Substantially predominates over the original jurisdiction claims, 3. All original jurisdiction claims have been dismissed, OR 4. In exceptional circumstances, there are other compelling reasons for declining jurisdiction Pendant Jurisdiction, p. 324 = When the plaintiff in her complaint, appends a claim lacking an independent basis for federal jurisdiction to a claim possessing such a basis. Ancillary Jurisdiction = Either a plaintiff or a defendant injects a claim lacking an independent basis for federal jurisdiction by way of a counterclaim, cross-claim, or third-party complaint. Counterclaims o Compulsory: One where it is in the same action/transaction or whatever and you have to raise it in order to resolve the complaint. You must raise it or lose it. o Permissive: A separate and unrelated counterclaim that is not covered under res judicata and you could raise it in a whole separate suit if you wanted to, or raise it at any time during the litigation, unlike the compulsory one, you dont have to raise it in the answer. Cross-claim: A claim asserted between codefendants or coplaintiffs in a case and that relates to the subject of the original claim or counterclaim. Third-party complaint: A asserts a claim against a third party, turning the into a third-party . United Mine Workers of America v. Gibbs, p. 325 Facts: Mine shuts down and puts 100 UMW workers out. Wholly owned subsidiary of the same mining company hires Gibbs to open a new mine nearby using a different union. UMW workers show up and cause an armed ruckus. Gibbs cannot open the mine and loses his job and cant get other work because of the whole UMW incident. Hurn v. Oursler: state law claims are appropriate for federal court determination if they form a separate but parallel ground for relief also sought in a substantial claim based on federal law. Hurn decided before Fed Rules of Civ Pro merged law and equity and at the time, the meaning of cause of action was disputed, though the Hurn court meant it as the same limits of res judicata. Reasoning: Courts have read Hurn unnecessarily narrowly to be limited to cases where the federal and state claims are little more than the equivalent of different epithets to characterize the same group of circumstances. This is wrongly narrow. Rule: Pendent jurisdiction, instead, applies when (1) the entire action comprises but one constitutional case (2) the federal claim has substance sufficient to confer SMJ (3) The state and fed claims must derive from a common nucleus of operative fact In summary, if P would ordinarily be expected to try them al in one judicial proceeding, then, assuming substantiality of the federal issues, the fed courts have the power to hear the whole deal. Pendant jurisdiction, however, is not a plaintiffs right, but rather a courts discretion in providing (1) judicial economy,(2) convenience and (3) fairness to litigants Factors to consider include (1) whether theres a state law hegemony (2) jury confusion in applying two sets of laws (3) insubstantiality of the fed claim (4) early disposition of the fed claim Additional Rule: Though power over the claims is established in the pleadings, the court may exercise their discretion sua sponte anytime throughout the litigation Ultimately, the court finds that the lower court did not have to dismiss the state claims, and also that Tennessee law doesnt allow the conspiracy theory, REVERSED Owen Equipment & Erection Co. v. Kroger, p. 332 10 of 36

This case elucidates the rule in 1367(b) that cant do through 1367 what they cannot do through 1332. can get around it as a third-party , but if original ever ammends their complaint in a way that destroys complete diversity then 1267(b) kills the lawsuit. Note 3 After Hurn, courts were hung up on the single or multiple causes of action language and some courts were finding cause of action to mean theories of recovery, but Gibbs clarified that causes of action are unimportant and the key is fact relatedness Note: 1367(a) defines SJ as including claims that form part of the same case or controversy, its generally accepted that this section invokes the Gibbs test, but instead of common nucleus of facts congress used the term related Executive Software North America, Inc. v. C.D. Cal., p. 343 The Gibbs factors are no longer enough on their own, you have to have them and explain why theres an exceptional need to decline to hear the case. This is based on a reading of the word other in (c)(4) that indicates that the (1), (2), and (3) reasons must be compelling Dissent: The statute doesnt force the court to exercise jurisdiction. Note 1 Executive Software says that section 1367(c) provides the only valid basis upon which a district court may decline jurisdiction and remand pendent claims p. 370 the different venue statutes nexus Removal ( 1441) Moving from federal court to state court is not removal, it is transfer. There are six main rules of removal: 1. Only s can remove 2. Removal is vertical only 3. The Mottley well-plead complaint rule applies, i.e., the plaintiffs complaint controls subject, of course, to artful pleading doctrine 4. has thirty days from notice of service to remove (30 days) 5. All s must join the removal motion unless they have a separate and independent cause of action 6. 1441(b): Local being sued solely on diversity cannot remove There are four main ways to make a case removal-proof: 1. Add a non-diverse, non-nominal party 2. Exclude all federal claims from your complaint 3. Claim > 75k, even if you could claim more. (Dont, however, make yourself look underhanded by doing something stupid like trying to claim 75k when you sue on a 100k contract.) 4. Use 1441(b), sue a party-in-interest in their homecourt See Week 5, Removal for more information. 2/22/2011 Venue, Transfer, and Forum Non Conveniens 1391 Always ask yourself, Is it solely based on diversity or diversity plus something? Resides, if Substantial part of subject to may be AISS events or property PJ, if no found, if no alternatives alternatives (a) Solely on diversity X X X (b) Not Solely on X X X 11 of 36

diversity Corporations: (1) venue where theres PJ; (2) if multiple districts, then any districts that would have PJ if they were a state; (3) otherwise in the district with the most significant contacts 1404 (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. (b) If all parties agree, you can transfer, in the courts discretion, to any other court within the same district 1404 must be so much more convenient as to venue as to justify disrupting s choice. (p. 388 Natl Psto.) 1406 (a) If a case is filed in the wrong place, then the court may dismiss or transfer it, (if justice requires) (b) Even if the filing is wrong, the parties can waive their rights to object to proper venue 1406es are filed to cure defects. Local Action Doctrine: There are local and transitory actions and the local action doctrine applies to local actions. See Reasor-Hill Corp. p. 374. Local actions are ones involving injury to a particular piece of land. The action had to have occurred locally because it injured local land. A transitory action could have happened anywhere. Penrose: Local action doctrine has mostly been engulfed by statutes Citizenship/Residency for Venue Diversity: See n. 2, p. 381 Courts do not look to the individual residences of unincorporated association members. See Denver & R.G.W.R. Co. p. 381. Penrose: Organizations like the ACLU may or may not be incorporated Bates v. C & S Adjusters, Inc., p. 378 Substantial part probably doesnt require fault and can require vague, indirect intent Hoffman v. Blaski, p. 383 Supreme Court Majority: might have been brought in 1404 means where could have brought it originally. Brennan (of course) Dissents: Points out ambiguity of the language. See p. 386. Penrose: Take from this case that cant do what couldnt do originally. See p. 388, n. 3 for in-depth interpretation of Hoffman. Van Dusen v. Barrack, p. 389 Supreme Court 1404 transfer = transferor courts law applied 1406 = transferee courts law applied If you transfer in order to cure a defect, then the transferee law applies Van Dusen applied to diversity, theres some dispute about whether it applies to FQ, See p. 389 Ferens v. John Deere Co., 389 Supreme Court filed in a state with a long statute of limitations because their suit was time-barred where they watned to bring it, THEN filed a 1404(a) and had it transferred back where they wanted it. The trial court didnt allow it, appeals affirmed, and the Supreme Court reversed, sticking to their Van Dusen guns in the face of apparent specious choice of law maneuvering. Goldlawr, Inc. v. Heiman, p. 390 Supreme Court The court can rule on a 12(b)(3) before considering a 12(b)(2) if you file both. Bruce Anton. Forum Non Conveniens

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Forum Non Conveniens is a doctrine separate from 1404 and 1406, but similar to the premise of 1404(a). Many states recognize it. Federal courts have applied it to international cases. Gulf Oil Corp. v. Gilbert, p. 391 The Supreme Court factor test for forum non conveniens. The Gilbert factor test: 1. Relative ease of access to sources of proof 2. Availability of compulsory process and cost of paying witnesses to come 3. Possibility of view of the premises, if appropriate to the action 4. All other practical problems that make trials easy, expeditious and inexpensive 5. Factors of public interest like administrative congestion 6. Unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed Penrose: Filing for a forum non conveniens presupposes a better alternative forum. The alternative forum must be functional. See p. 402, Nemariam v. Federal Democratic Republic of Ethiopia. Piper Aircraft v. Reyno, p. 392 's choice of forum (due to strict liability laws) does get some weight, but the trial court gets wide discretion on weight and the weight assigned gets significant deference on appeal Bottom line: No one wants to force U.S. taxpayers to pay for a trial where everyone involved is Brittish. Furthermore, no one getting jury duty wants to do an all-Brittish trial. Marshall isolates the connections to Scotland and focuses on them to make his point. Rule: Courts may condition forum non conveniens dismissals on a defendants waiver of a defense to being sued in the foreign forum. See n. 8, p. 402. n. 9, p. 403 The Goldlawr case rule applies to forum non conveniens as well as 12(b)s Penroses Forum Non Conveniens checklist: 1. Alternative forum with functionality 2. You are always applying for a dismissal with FNC, never a transfer and the dismissal can be conditioned on waiving defenses to suit in the foreign forum. 3. Private and public interests are at stake Can a federal court transfer a case to state court? NO!!!!!!! Federal courts remand to state courts. State courts remove to federal courts. State courts transfer to other state courts. Federal courts transfer to other federal courts. John Moore Hypo: Remember that FedEx might be a citizen of DE and TN for PJ, but for Venue, they are a resident of every state. See 1391(c). Ricky Martin Hypo: Remember to ask about forum selection clauses! Forum Selection Clauses and Venue: The clause waives your rights to both PJ and Venue, BUT, Venue is a hybrid. The court may still use judicial discretion in the interest of convenience and justice over venue. Personal Jurisdiction = personal right that is waivable Subject Matter Jurisdiction = institutional right that is not waivable Venue = Both personal and institutional right hybrid. You can waive your right to object to venue. Nevertheless, the court has discretion over venue based on convenience and justice. See 1404, 06. 1404 = transfer 1406 = transfer Forum Non Conveniens = dismissal (conditional on waivers) 12(b)(3) = dismissal 1441 = removal

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Penrose: 12(b)(2) and (3) refer to waivable personal rights. You can still, however, instead of dismissal, try for transfer via the other methods. You must do it timely, though, if you wait too long, the court is unlikely to use their discretion and more likely to hold you to your waiver. 2/24/2011 Erie doctrine part I The Essential Erie Rule: In diversity cases and claims, federal courts must apply state substantive law and federal procedural law. Swift v. Tyson, p. 405, 1842: Interpreted the Rules Enabling Act 1652 as applying only to the statutory law of the states, not the general common law derived from reason (Frankfurters York description). Erie R. Co. v. Tompkins, p. 408, (Brandeis, 1938) There is no federal general common law. p. 410 Policy concern: Noncitizens unfairly imposing non-forum law on forum citizens. Erie hints at being a constitutional issue (Supremacy Clause), but it probably isnt. p. 414, n. 1. Guaranty Trust Co. v. York, p. 416 Basic principal: The courthouse door you walk into should not determine your case. o The operation of a double system of conflicting laws in the same State is plainly hostile to the reign of law. o See highlighted text on p. 419 pointed out by Penrose for more explanation and quotes. Frankenfurters exposition on law: Law is now law because it was made law previously. Law is no longer derivative of reason. The brooding omnipresence of reason has been cast aside. The York Outcome Test: If state law affects the outcome, it is substantive and applies, but if it doesnt then it is procedural and the federal version applies. o York does a poor job of explaining the difference, the outcome test either makes almost nothing procedural or is ambiguous. Most people think its ambiguous. See p. 418, 4. Note 1, p. 421 discusses whether Statutes of Limitations are procedural or substantive. Byrd v. Blue Ridge Rural Electric Cooperative, Inc., p. 424 (Brennan) This case sets out the Byrd Balancing Test which either greatly modifies or supplants the York Outcome Test. Byrd Balancing Test aka relatively unguided Erie: This is like a see-saw with the York test on one end and the Strength of the Federal Interest The Twin Aims of Erie on the other end. o The 7th Amendment right to jury trial gives the Fed. Interest the highest possible weight, as does any constitutional concern. o If the York side is low, then it often seems like a procedural issue and the Fed. Interest side wins. Ergo, Ties probably go to Fed. Int. when York is low and to York when York is high. o York is low when the issue is whether a judge or jury should decide the merits. o The Twin Aims of Erie are listed below. They can act to offset the Strength of the Federal Interest in applying the Byrd balancing test. (1) discouragement of forum-shopping (2) avoidance of inequitable administration of the laws > The 7th Amendment guarantees a jury trial in cases over $20, btw. > In federal court, the court has discretion to order mediation at any point. > In state court, parties have a right to object to mediation. > The Erie dissent thought that the majority overruled the Rules of Decision Act (1652), the majority didnt think that they were overruling it. 14 of 36

The Rules Enabling Act (28 2072) (1934): (a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts and courts of appeals. (b) Such rules shall not abridge, enlarge, or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. The Rules of Decision Act (28 1652) (1789): The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply. Erie Doctrine, part II 1. Diversity? 2. Are the federal and state laws different? 3. Is the federal way statutory or constitutional or common law? In other words, what is the source of the federal (not the state) law? a. Constitution > Federal Way b. F.R.C.P. > Direct Conflict? I.e., In applying traditional methods of statutory interpretation, does the scope of the federal law encompass the issue, such that it precludes the state way of doing things, or in other words, the federal and state ways are mutually exclusive? i. If no, then > State Way ii. If yes, then > Rules Enabling Act analysis 2072 1. Does power to make the rule exist? 2. Does the rule abridge, enlarge, or modify state substantive rights? c. Statute i. Direct collision? Is the law on point? ii. Constitutional analysis (Art. I [legislative] and III [judicial]) > Congress can create lower courts, ergo, it can create rules for them to a certain extent. > See the Rules Enabling Act 2072 and ask yourself, Is the rule arguably procedural? d. Form, mode, or practice i. Apply the Rules of Decision Act and use modified York/Byrd analysis (the see-saw) Exam tip: Most issues are a, b, or c. Only some outlying issues are d. The final will only have either a, b, or c, which all have virtually the same or similar analysis OR d, which requires a completely different seesaw analysis. Furthermore, if you do both analysis, you will not get points for both. Multiple states is a choice of law issue that transcends Erie Sibbach v. Wilson, p. 439 (1941) We talked in class in some depth about Sibbach and how, if bodily integrity isnt a substantive state right, then what is? Justice Roberts said that taking into account the importance of the alleged right would invite endless litigation and confusion. The right therefore, must either (1) go to the merits of the case or cause of action in a way that is seemingly not procedural or (2) be somehow more important than the bodily integrity of a compulsory physical exam. (This is a less-than-straightforward interpretation of the REA.) Hanna v. Plumer, p. 431 (1965) Erie cannot be used to void a F.R.C.P.; This case states the twin aims of Erie. No one would choose federal court over state court because service of process is slightly easier. The federalism concerns discussed in the Harlan concurrence in Erie include: 15 of 36

1. freedom to experiment 2. flexibility in tailoring regulation to local needs 3. decentralization as a strategy to minimize factional control 4. independence as a source of strengthened protection of rights 5. the superior democratic pedigree that comes from closer contact with the citizenry Walker v. Armco Steel Corp., p. 442 When Rule 3 says, a civil action is commenced by filing a complaint with the court, SCOTUS says that that does not indicate language of a scope broad enough to encompass the ending date of a state Statute of Limitations. Ipso Facto, there is no direct conflict and state law controls. Burlington Northern R. Co. v. Woods, p. 447 If the issue is discretion v. no discretion, then those are mutually exclusive and ipso facto in direct collision Justice Marshall: Rule 38 affects only the process of enforcing litigants rights and not the rights themselves. This seems to imply that the rights are co-extensive with the merits of the case Stewart Organization, Inc. v. Ricoh Corp., p 448 Alabama wont enforce a forum-selection clause, 1404(a) allows for discretion (justice and convenience); SCOTUS holds that the district court MUST look at fairness and convenience because 1404(a) plainly demands it.

York Outcome Determinative Test

Federal Interest in light of the Twin Aims of Erie

2/10/2011 Pleading Rule 8 Three pleading requirements 1. Short and plain SMJ 2. Short and plain entitlement to relief o Twombly: Beyond speculation, plausible, not likely or probable o Balancing test with notice pleading on one end and in terrorum concerns on the other, resulting in different standards for simple tort injuries vs. RICO or Antitrust claims. 3. Demand for relief Four answer Rules 1. Short and plain defense for each claim 2. Admit or deny each allegation o General, Specific, or Qualified General o Can plead idk, but must be lack of both info and knowledge Reasonable investigation and honesty-in-pleading reqs. 3. Admitted if not denied 4. Must raise affirmative defenses (See tests on page 285) Alternative, inconsistent, or hypothetical pleadings always allowed and are not concessions

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Rule 9 (a) You dont have to plead capacity, authority, or existence of entity (b) You can generally allege mind conditions for Fraud or Mistake (c) Generally allege conditions precedent happened, particularly deny them (d) You need to allege official docs are legally issued or done and that is sufficient (e) In pleading judgment of any court or tribunal, can plead judgment without showing jurisdiction to render (f) You need to put time and place in there (g) You must plead special damages (h) Admiralty, see p. 291, Supp. Penrose: Twombly seems to judicially broaden Rule 9 because it is somewhat inconsistent with notice pleading. Twomblys plausibility standard overruled the beyond doubt that cant recover standard. 12(e)s and 12(f)s are disfavored. 12(e) = motion for clearer statement 12(f) = motion to strike (can be sua sponte, must be filed before response [alternatively w/in 21 days] can be done for insufficient, redundant, immaterial, impertinent, or scandalous stuff) 12(b)(6) = failure to state a claim upon which relief can be granted This motion is on the merits; therefore you cannot file again if you lose it, the case is decided, res judicata 12(b)(7) = failure to join a party under Rule 19 Texts and emails deleted can be subpoenaed from the company; who apparently stores them!?!? Who knew?
Gillispie v. Goodyear Serv. Stores, p. 555 Facts: alleged that caused her to be in jail and she suffered humiliation and ridicule Issue: Is this a plain and concise statement of the facts constituting a cause of action? Rule: You need the issuable facts and the material, essential and ultimate facts upon which s right of action is based Holding: No, it needs the Who, What, Where, Why, and When components. Reasoning: The facts comprising the legal theory, including some reasoning, need to be set out in order to pick the law to apply. o Example: You cannot say something happened, then label it negligence. You, instead, must connect the facts to the elements of a negligence theory. The Four Functions of Traditional Pleading 1. providing notice of the nature of a claim or defense; 2. identifying baseless claims; 3. setting each partys view of the facts; 4. narrowing the issues N. 2, p. 558 Code v. Notice Pleading Code = Field Code derivatives: E.g. The Principals of Transnational Civil Procedure require a fuller statement of the facts and evidence supporting the claim. Accomplishes all four. Notice = Under notice, the last three are handled through discovery. Baseless claims are dealt with by a short and plain statement together with a certification of non-frivolity. Cook, Statements of Fact in Pleading under the Codes, p. 556 Logic alone (and semiotics) cannot tell you whether, B owes A $500 is a conclusion of law or an operative fact. Dioguardi v. Durning, p. 559

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Facts: Pro se pleads some incomprehensible thing about tincture imports being seized and sold off. Dismissed for fails to state facts sufficient to constitute a cause of action. Vociferously redrafted and dismissed again. Appealed yet more volubly, yet equally vague. Rule: Under the new rules of civil procedure, there is not pleading requirement of stating facts sufficient to constitute a cause of action Holding: entitled to his day in court Reasoning: The D.C. did not state why it concluded that the complaints showed no claim upon which relief could be granted and the U.S. Attorneys brief for just prognosticates that the most cursory examination of [the complaints] proves the dismissal. Bautista v. Los Angeles County, p. 564 The trial judge might need to offer guidance on how to amend the complaint before dismissing with prejudice Also, facts as to why you are a member of a protected class may or may not need be set out Swierkiewicz v. Sorema N. A., p. 565 Court of Appeals says you must allege (1) membership in a protected group; (2) qualification for the job in question; (3) an adverse employment action; and (4) circumstances that support an inference of discrimination. Prima facie case the pleading standard Unlikeliness of ultimate recovery is not the test Bell Atlantic Corp. v. Twombly, p. 568 A 12(b)(6) basically claims a violation of Rule 8 or 9 Twombly vitiated Conley, supplanting the beyond doubt standard with plausibility Effectively, rather than avoiding foreclosure of relief, a complaint must suggest entitlement. This flexible standard changes with the cause of action, e.g., car accident = very concise; antitrust or RICO = facts need to be set out that go beyond ambiguity as to culpability See Supp. p. 369. In terrorum complaints, also, seem to be a primary concern. Ashcroft v. Iqbal (2009) established that Twombly was not limited to antitrust, as dissent might suggest. > The initial complaint took four years to have its sufficiency settled!?! The issue between Maj. and Dis. seems to be the divisibility of discovery. Maj. says its indivisible. Dis. says, Why not take a deposition from one exec. from each corp., then, if it still doesnt seem plausible, go ahead and dismiss? > sounds pretty persuasive to me (go figure its Stephens) The Majority cites a 1989 law review article concluding that trial judges are impotent to curb discovery abuse due to a lack of information, inter alia. Garcia v. Hilton Hotels Intl, Inc., p. 579 Allegation of defamatory publication followed by judicial proceeding statement that was unquestionably absolutely privileged as a matter of law 12(e)s are disfavored They require, so vague or ambiguous that the party cannot reasonably prepare a response, must point out the defects and details desired, also 14 days after notice or time set by court, pleading may be struck or other appropriate order. Rule 12(e) N. 1, p. 583 Given the theory of notice pleading, a 12(e) will be denied when the information sought is available through discovery.

3/22/2011 Alternative and Inconsistent Allegations are allowed. Rule 8(2), (3). Rule 8(3) is often construed to require separate causes of action and defenses to be separately pled. Rule 10(b) requires numbered paragraphs. It asks as far as practicable for each paragraph to be limited to a single set of circumstances. It also asks different transactions and occurrences to be separately numbered if doing so would promote clarity. Ziervogel v. Royal Packing Co., p. 595

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Actual notice was held insufficient. I.e. even if the other side has actual notice of special damages that you are arguing for, you still have to plead them. General damages = the inevitable and necessary result of the injuries set out in the petition, in other words, the natural results of the act Special Damages = Basically, damages that the would want to be put on notice about so as not to be prejudiced by not being able to put together an argument in response to it o Penrose tip: You can plead too much or too little. E.g. of too much, this case where they pled with a catchall phrase at the end and due to, essentially, noscitur a sociis the catchall was limited to the terms listed and didnt cover the raised blood pressure. E.g. of too little, general denials never work, they are read like general damages. Also, pleading everything Im entitled to doesnt give notice and winds up being construed as a general prayer. N. 3, p. 598 if special damages might result from a contract breach, you have to inform the other party that the special damages might result. Penrose: Rule 9(g) [special damages] seems to carve an exception out of Rule 1. [Im not sure that I agree with that statement] Common Special Damages include: 1. Attorneys fees 2. Mental anguish and counseling 3. Medical expenses (outside of hard bills) 4. Loss of reputation Federal Rule of Civil Procedure 54(c) Demand for Judgment; Relief to Be Granted. A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings. Every other final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings. Bail v. Cunningham Brothers, Inc., p. 599 Under Rule 54(c) ad damnums and all pled damages are nothing more than recommendations As long as argued 100 and defended 100, if the jury awarded 150k then 150l is fine under Rule 54(c), assuming Rule 9(g) [special damages] was complied with. Also, theres no (1) indication of passion and prejudice on the jurys part or (2) indication that the damages were excessive. Anheuser-Busch v. Johnn Labatt, p. 601 asked for punitive damages a week before trial and got 5 mil, trial court set asside, appellate affirmed without quoting fed. rules, cert. denied. Responding 12(b)(1)-(5) = not on merits 12(b)(6) = on the merits, formerly known as the demurer, demurrers still exist in CA The design of the FRCP is to resolve cases on the merits, not on the pleading. American Nurses Assn v. Illinois, p. 603 Posner Motion to Dismiss for Failure to State Claim If a party pleads 19 alternatives and the twentieth alone has merit, then you cannot dismiss with prejudice. See Rule 8(d)(2).

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Penrose: Courts can sua sponte order a 12(e) [more definite statement]. Further more, 12(b) (6)es [failure to state claims] get filed all the time and courts frequently conditionally grant them with the condition being a 12(e). I.e. they get a chance to amend and/or cure. 12(f) Motion to Strike: disfavored; Penrose: unusual; can be sua sponte The court may strike from a pleading an insufficient defense or any (1) redundant, (2) immaterial, (3) impertinent, or (4) scandalous matter. Normally, post 12(b)(6), the plaintiff gets one chance to amend. Shaw v. Merritt-Chapman & Scott Corp., p. 609 Absent specific language to the contrary by the district court, a Rule 12(b)(6) motion constitutes an adjudication on the merits. The Speaking Demurrer (CA allows this, most states dont) The three-part 12(b)(6) Rule: (1) only look at the complaint (4 corners); (2) All s facts are assumed true; (3) All inferences drawn in s favor. Penrose: The minuet you look outside the complaint, it becomes a motion for summary judgment. 12(d). All the 12bs except 6 are equivalent to the common-law Plea of Abatement Motion for Summary Judgment (Rule 56): No genuine issue of material facts and entitled to judgment as a matter of law. Motion for Judgment of the Pleadings (12)(c): Motion for Failure to State a Claim 12(b)(6): Gateway Bottling, Inc. v. Dads Rootbeer Co., p. 611 12(f)s To strike as scandalous, it must be obviously false and unrelated to the subject matter of the action. Cobell v. Norton, p. 611 12(f)s 12(f)s are often dilatory and prejudicial and are rarely granted. You can file motions to strike on late pleadings and ones that dont comply with some rule. 12(c) is for Judgment on the Pleadings. You can move for it at the close of pleadings, but early enough not to delay trial. The Answer Rule 8: You can only (1) Admit; (2) Deny; or (3) plead insufficient info (Rule 8(b)(5)), which has the effect of a denial. Rule 4 expresses a strong preference for waiver of service and imposes a duty on to do it when asked by , with damages being expenses by in making service and expenses incurred in collecting expenses. Also, gets 60 days to answer instead of 21. Rule 12(a)(1)(A)(i). Rule 15(a)(1) (maily s rule): A party may amend its pleading once as a matter of course at any time before being served with a responsive pleading Rule 15(a)(1)(B) (s rule): has a free twenty day window, post-answer, to amend. Denials Rule 8 requires a defendant to make one of three responses to the contents of plaintiffs complaint. (1) Admit; (2) Deny; (3) plead insufficient information. Kortum v. Raffles Holdings, Ltd. (p. 612): You cannot answer that the documents speak for themselves To avoid default admissions, defendants often use a catchall paragraph denying each and every averment of the complaint unless otherwise admitted. The general denial is discouraged. It must be in good faith and only in situations in which everything in the complaint can be denied legitimately. Using general denials is risky. (p. 612) If the court

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decides that the general denial doesnt fairly respond to the substance of the allegation, it may deem defendant to have admitted plaintiffs specific averments. Under Rule 9, capacity and conditions precedent must be challenged specifically. Amendments Rule 15(a)(2) governs Zielinski and Beeck. It says that in any case, a party can amend with (1) written consent of the other party; or (2) leave of the court. Furthermore, The court should freely give leave when justice so requires. The purpose of a limitations period is to provide notice to the defendant, within a prescribed period of time, that the plaintiff has brought an action against her arising out of a given set of events, not cause of action. Glannon Consequently, Rule 15(c)(1) provides that amendments relate back as long as the new allegations arise from the same litigation events as the original pleadings. Rule 15(1)(C) provides that amendments adding a new party do not relate back UNLESS (1) the claim arises from the same conduct, transaction or occurrence as the original one, (2) the new party had notice, within the filing date plus 120 days, that the suit against the original party was filed; AND (3) the new party knew or should have known that, but for mistaken identity, the original suit would have been against him. Rule 15(b) allows amendments at trial if a party will not be prejudiced on the merits or if the parties expressly or impliedly consent to try the issue. (If parties dispute an issue, it might be impliedly pled) Rule 15 does two things: (p. 623) 1. Permissively allows amendments in order to make sure that trials are decided on the merits and not on procedure. 2. It underscores the principal that fact revelation and issue formulation occur in discovery Zielinski v. Philadelphia Piers, Inc., p. 612 General denial. Turns out later, that the forklift that injured wasnt even owned by . Because the SoL had run, would be prejudiced by an amendment or construction whereby the general denial somehow denied ownership of the forklift. Other factor for judicial discretion: The same insurance company covered the true owner of the forklift. This raises issues of potential tactical maneuvering and a 15(a)(2) justice analysis. Beeck v. Aquaslide N Dive Corp., p. 623 Rule 15 discretion: One hand, s claim might be barred by the SoL here, but since we dont know where the real slide maker is, we dont know how long the SoL is in their homecourt. Other hand, deserves to dispute the issue and their diligence was lacking, but not so lacking. On these facts, the court comes to the opposite result from Zielinski and allows the amendment. Rule 8(b)(5) allows denial for lack of info, but under Oliver, you cant do this is the matter is presumptively within s knowledge. See p. 617. Negative Pregnant: If alleges you owe her 89k and you deny owing her 89k, thats a negative pregnant and you might have admitted to owing $88,999.99. Conjunctive Denial: If you deny using s exact words, it might be considered evasive and counted as an admission. Rule 8(c) (Affirmative Defenses/Avoidances): These must be raised specifically and they are either (1) concern allegations outside s prima facie case; OR (2) admits the allegations, but suggests another reason for no recovery. Courts look at statutes and state practice to decide if a defense is affirmative. Examples include: accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of limitations; and waiver. 21 of 36

Ingraham v. United States, p. 618 Rule 60(b) says that final judgment may be cancelled for, inter alia, mistake, new evidence, fraud, void judgment, discharge of judgment, prospective change not equitable, OR any other reason that justifies relief. Principal: Where an affirmative defense is raised in the trial court in a manner that does not result in unfair surprise, technical failure to comply with Rule 8(c) is not fatal. Holding: Failure to plead a damage cap was fatal. The damage cap was an avoidance for Rule 8(c) purposes because it alleged a new matter contrary to the ordinary legal effect. Rule 7(a) only allows) a complaint; an answer to a complaint; an answer to a counterclaim designated as a counterclaim; an answer to a crossclaim; a third-party complaint; an answer to a third-party complaint; and if the court orders one, a reply to an answer. Adams v. Quattlebaum (p. 627): A motion to dismiss doesnt have the same effect as a response on Rule 15(a). Moore v. Moore, p. 627 (D.C. Cit. App.) (Implied Consent under 15(b)) The court looks at the purpose of Rule 15(b) being to put the parties on actual notice of unpleaded matters that are being litigated and provide (1) adequate opportunity to litigate and (2) to cure any surprise from introduction of new matters. Examine the record to see if the parties impliedly contested a matter and had notice that the matter was contested and opportunity to litigate without undue surprise. The Implied Consent Rule, p. 629, n. 5 N. 6 Delay alone, (in one court) cannot support the denial of a request to amend. The Relate-Back Provision of 15(c): If the amendment relates back to the date of the original pleading, then you can bypass the SoL. Worthington v. Wilson, p. 630 (Suit against unnamed police officers) Holding: Filing against people who you dont know the names of isnt a mistake, its intentional and it does not serve to put the actual defendants on notice. The facts indicate that the failure to name was due to a lack of diligence in learning the names. 3/29/2011 Side note: Twomblys plausible standard replaced the old beyond doubt that cant recover standard Surowitz, p. 636: This case illustrates the principal of the FRCP, which is to get things to the merits and not bog them up in procedure. This old lady relies on her nephew Mr. Brilliant to point out that shes getting ripped off on some stocks. She was allowed to rely on him to verify a pleading that was beyond her level of financial sophistication. Hadges v. Yonkers Racing Corp., p. 642 2d Cir. Rule 11(3) allows sua sponte judicial sanctions. This case holds Rule 11(3) to require a show cause notice (adequate notice) and opportunity to respond. The principal of Rule 11 is to allow you to fix issues before sanctioning people Rule 11 At first, the rule was just that you had to plead in good faith. In 1983, the rule became reasonable factual and legal inquiry plus factually well-grounded and legally warranted plus mandatory sanctions In 1993, the rule became reasonable inquiry under the circumstances plus nonfrivolous plus factual contentions have or probably will have evidentiary support plus no harassment, delay, or cost

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increase plus instead of mandatory sanctions, you have a notice and respond (usual response is a fix) opportunity Other Party: The other party can serve a motion for sanctions on you,, then 21 days later, may file it with the court, or; Judge: the court can issue a show cause order sua sponte and give adequate notice and opportunity to respond. Counterclaim: A claim for affirmative relief against an opposing party. Crossclaim: A claim for affirmative relief against a coparty. Rule 13 (1) Anything is allowed as a permissive counterclaim. Anything is, of course, limited by jurisdictional concerns. (2) Anything that arises out of the transaction or occurrence that is the subject matter of the opposing partys claim is compulsory. You waive it forever if you do not raise it. The only important exception is when the compulsory counterclaim is already being litigated somewhere else. 13(a) = Compulsory 13(a) exception: already being litigated 13(b) = Permissive 13(g) = Permissive, crossclaim 13(e) = these come after the lawsuit is filed, they are permissive and supplemental United States v. Heyward-Robinson Co., p. 658 Rule 13 This case lays out the logical relationship interpretation of the same transaction language of Rule 13. You automatically have supp. jur. over compulsory counterclaims o Reason: 1367 (Supp. Jur.) requires same case or controversy (Art. III), while compulsory counterclaims under Rule 13 require same transaction which is virtually the same. For counterclaim purposes, courts use at least four tests for same transacton 1. Are the issues of fact and law raised by the claim and counterclaim largely the same? 2. Would res judicata bar a subsequent suit on defendants claim absent the compulsory counterclaim rule? 3. Will substantially the same evidence support or refute plaintiffs claim as well as defendants counterclaim? 4. Is there any logical relation between the claim and the counterclaim? All courts agree that same transaction should be construed liberally to promote judicial economy. Spectator Management, p. 668: Compulsory counterclaim asserted and no objection to PJ asserted. Court held that the counterclaim amount could be added to SMJ. If you dont raise a compulsory counterclaim then courts bar in later based on either (1) res judicata, (2) waiver, or (3) estoppel. One court in Fantecchi v. Gross decided that fed court could not enjoin state court from allowing relitigation of an unasserted compulsory counterclaim. Penrose: Rule 14 is usually used for indemnification. Rule 14: (1) can bring in for contribution anyone who is or may be liable to it for all or part of the claim against it. must do this within 14 days of their answer or obtain the courts leave. (2) third-party must treat /third-party just like a regular (for Rule 12 & 13). Third-party may assert defenses to and may assert claims arising from and s transaction that gave rise to original suit. (3) can amend against third-party anything from the same transaction. Third-party now becomes just like a regular and must assert all the regular stuff and may assert all the regular stuff. (4) Anyone can move to strike, sever or try separately.

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(5) Third-party can plead in new third-party s for contribution and start Rule 14 all over again. (b) If a claim is asserted against , then can bring contributors in just like can under this rule. Rule 14 Policies: 1. multiplicity of suits 2. inconsistent verdicts 3. just speedy and equitable resolution of cases 4/1/2011 Rule 17 (real-party-in-interest rule): (1) real-party-in-interest (2) reasonable time to join the real-party-in-interest (3) Capacity (a) individuals law of domicile (b) corps law of organization (c) others law of the state of the court (4) lists next friends that can sue on behalf of and in the name of people
Ellis Canning Co. v. International Harvester Co., p. 675 Kan. 1953 Facts: negligently started a fire in 's tractor while servicing it. 's insurance co. paid him off. There was a subrogation clause. sued in his own name for the use and benefit of the insurance company, maybe to establish diversity or to look sympathetic. Issue: Can invoke the real party in interest rule in Rule 17 to block the suit? Holding: Yes, the insurance co. is the real party in interest. Side note: Under Rule 17(3), of course, the court cannot dismiss until giving a reasonable time for the real party to ratify, join, or be substituted in. Under Rule 21, the court can add the insurance company.

Rule # 13(a) 13(b) 13(g) 13(e) 17 20 19 18

What it does/definition same transaction; counterclaims Anything; counterclaims same transaction; crossclaims Immature claim Real Party in Interest Rule, inter alia You can join anything, including contingent claims

Permissive or Mandatory Mandatory Permissive Permissive Permissive Mandatory

Basic Aggregation Rule: 1 v. 1 : can add claims related and unrelated Must consider in a 13(b) 13(a)s and 13(g)s always automatically have jurisdiction through 1367, i.e., same transaction or occurrence is read the same as same case or controversy. 1367 (Supp. Jur.) is same case + Codified Gibbs, not one or the other. 13(b)s must have FQJ or meet the Basic Aggregation Rule for Diversity (I.e., you can add 13(a)s and 13(b)s to meet the RJA for the 13(b)s). Penrose Rule: cannot do through 1367 (Supp. Jur.) what they cannot do through 1332 (Diversity). In other words, if s complaint is solely based on diversity, then cant assert supplemental claims that

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destroy complete diversity. No one can. See 1367(b) (no jurisdiction when exercising supp. jur. would be inconsistent with the jur. reqs of 1332 (Diversity)). Rule 18: (a) You can assert as many claims as you have. They can be related or unrelated. (b) You can assert contingent claims. Rule 21: Misjoinder merits cure rather than dismissal. Court can sua sponte, on just terms, at any time, add or drop a party. Court can also sever claims. Rule 20 (Permissive Joinder) Prong 1: logically related as a series of transactions or occurrences Prong 2: question of law or fact common to all M.K. v. Tenet, p. 682 D.C. 2002 Holding: (Rule 20 prong 1) The alleged repeated pattern of obstruction of counsel is logically related as a series of transactions or occurrences and (Rule 20 prong 2) the question of law or fact common to all is whether the defendants have engaged in a common scheme or pattern of behavior that denies legal right to counsel. Rule 20 Policy: policy is to (1) promote trial convenience, (2) expedite the final determination of disputes, and (3) prevent multiple lawsuits. Rule 19 (Compulsory Joinder): In a nutshell, you have to join people when (1) the court needs them for complete relief and (2) it is feasible to join them.
Bank of California Nat. Assn v. Superior Court, p. 688 Rule 19 necessary v. indispensable parties Rule at common law: compulsory joinder for joint rights New Rule: when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must then order them brought in. Reasoning: In this case, theres some intl s that are necessary, but maybe not indispensable. There are truly indispensable parties where if you didnt have them, the judgment would be in danger of avoidance by collateral attack, then there are parties that might possibly be affected and might be necessary for a final and complete settlement, but a decree can be rendered between the parties at hand. Provident Tradesmens Bank & Trust Co. v. Patterson, p. 693 Rule 19 Required Joinder SCOTUS 1968 Facts: The appellate court did not follow the provision of Rule 19 that findings of indispensability must be based on pragmatic considerations. Reasoning: Loaner had an interest in having his 100k insurance fund preserved to cover potential liability of his. His other trials where the other passengers are suing him are as yet undecided for unknown reasons. An adjudication of permission that would be binding on all interested persons, was not feasible because joining loaner would kill diversity Holding: The court of appeals erred in not allowing the judgment to stand. Four interests: o (1) 's interest in having a forum (includes interest in preserving judgment) o (2) wish to avoid multiple litigation, inconsistent relief, or sole responsibility for shared liability (this should be foreclosed on appeal if not asserted) o (3) Interest of the outsider whom it would have been desirable to join. o (4) Interest of courts and public in complete, consistent, and efficient settlement. Everyone was willing to accept a limitation of all claims to the amount of the policy. That is the point of 19(b)(2)(B) shaping the relief. The court can play with the relief. The equity and good conscience part of the test is not about substantive rights

Rule 42 (Consolidation and Separate trials): Both are allowed in the interests of economic, prejudicial, dilatory, or other reasons.

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 1359 Parties Collusively Joined or Made: A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court. Rule 17(a)(3) limited to where proper party to sue is difficult to ascertain or when an excusable mistake has been made. p. 677, n. 3. Capacity = minors, mental incompetents, etc Rule 17 allows the following to sue in their own name without joining the beneficiary: executor; administrator; guardian bailee; trustee of express trust; party with whom or in whose name a contract has been made for anothers benefit; and party authorized by statute 4/5/2011 Final Exam Reminder: Rule 18 = Claims Rule 20 = Parties Reference each rule as you write the exam and do NOT mix these two up. Penrose: Use this quote on page 670 on the final, The words transaction or occurrence are given a broad and liberal interpretation in order to avoid a multiplicity of suits. See Lasa. What rule allows Jerry and Elaine to sue together? Rule 20 What rule allows Kramer and Newman to be joined together? Rule 20, applies to s and s. Can one crossclaim against another ? YES! 1367 bars using Rule 1367 to destroy complete diversity for Rule 14 (contribution), Rule 19 & 20 (Permissive and Compulsory Joinder) and Rule 24 (Intervenor), but NOT Rule 13, particularly 13(g). One can crossclaim against another without them being diverse. if it arises out of the same transaction. Rule 14 has a set time frame attached, but the rest go under Rule 15 for amendments. If Kramer wins the race to the courthouse, then his claim falls under a 13(a) exception and he doesnt have to raise it against Jerrys suit. If Jerry defames Kramer after litigation starts, Kramer can bring it in under 13(e). 4/7/2011 s Checklist: 1. 12(b)1-5 2. 12(b)6 3. 12(e)/12(f) 4. Affirmative Defenses (Rule 8) 5. Counterclaims (Rule 13) 6. and ANSWER, always, always, always, answer Tanbro Fabrics Corp. v. Beaunit Mills, Inc. Tanbro wants to raise the empty chair defense, which is to blame someone not in the lawsuit Rule 20, however, always lets you fill that empty chair, Rule 19 might force you to fill it, but probably not and not on the final exam Penrose: Joinder is usually good for plaintiffs. Answering the Policy Question on the Exam: 1. Start with Rule 1 (just, speedy, and inexpensive determination of every action) 2. Avoid multiplicity of suits and liability, excessive costs, prejudice to parties, i.e., with a class action, the multiple injuries might seem to add up to a win for the plaintiffs, whereas, each individual claim might not look so strong on its own 26 of 36

3. Sometimes trials can be split where a common set of facts is tried, then the numerous suits are sent to their individual locales for just the issue of damages. Courts have fairly wide latitude to order fixes like this under Rule 42 (Separate trials and consolidation for economic, prejudicial, and dilatory, or other reasons) Rule 19 (compulsory joinder) (not on final exam) Theres a difference between necessary and indispensable parties. See Bank of California, p. 688. You must join parties when the court needs them for complete relief and it is feasible to join them. Rule 19 and Rule 22 (Interpleader) can trump s chosen structure. Provident Tradesmens Bank & Trust Co. v. Patterson, p. 693 Rule 19 Required Joinder SCOTUS 1968 Holding: The court of appeals erred in not allowing the judgment to stand. Four interests: o (1) 's interest in having a forum (includes interest in preserving judgment) o (2) wish to avoid multiple litigation, inconsistent relief, or sole responsibility for shared liability (this should be foreclosed on appeal if not asserted) o (3) Interest of the outsider whom it would have been desirable to join. o (4) Interest of courts and public in complete, consistent, and efficient settlement. Rule 19(b)(2)(B) (shaping the relief) allows the court to play with the relief and work something out. In this case, where all s were willing to voluntarily limit their recovery to the policy, interest 2 was moot. Penrose: Rule 19 is like the lottery; you try it a lot and it rarely works. Rule 19 is antithetical to the adversarial process. Rule 14 (Third-Party Practice) Rule 14: (1) can bring in for contribution anyone who is or may be liable to it for all or part of the claim against it. must do this within 14 days of their answer or obtain the courts leave. (2) third-party must treat /third-party just like a regular (for Rule 12 & 13). Third-party may assert defenses to and may assert claims arising from and s transaction that gave rise to original suit. (3) can amend against third-party anything from the same transaction. Third-party now becomes just like a regular and must assert all the regular stuff and may assert all the regular stuff. (4) Anyone can move to strike, sever or try separately. (5) Third-party can plead in new third-party s for contribution and start Rule 14 all over again. (b) If a claim is asserted against , then can bring contributors in just like can under this rule. Jeub v. B/G Foods, Inc., p. 705 DC Minn. 1942 Penrose: Rule 14 is always discretionary any party can challenge the parties being added Rule 14 is always contingent if me, then you This case conclusively establishes that you do not have to wait for a judgment before impleading for contribution. 4/12/2011 A Rule 14(a)(2)(D) is a mutant claim because it is not a crossclaim and it is not a counterclaim Interpleader: Statutory interpleaders only benefit is not having to post the stake. Interpleader Rule 22 is supplemental to Rule 20 (permissive joinder for (1) joint, several, or alternative relief; (2) question of law or fact common to all s), Rule 22 (Interpleader): (a)

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(1) If claims might expose a to double or multiple liability then the potential claimants can be required to interplead as s. You can do this even if the claims lack a common origin or are not identical and if denies liability in whole or in part to any or all of them. (2) s with similar liability can do impleader through crossclaims or counterclaims. The federal statute has no explicit similar allowance for s (Supp. p. 521), but case law seems to allow it just like Rule 22. Disinterested stakeholders generally get attorneys fees. (Supp. p. 518). Rule 22 doesnt require turning over the asset, but under Rule 67, you can and s often do. 1335 Interpleader This is like a whole new way to get Federal SMJ. You just need to deliver some interest to the court or post a bond for it thats more than or equal to $500. Then, you need just one potentially adverse claimant to have diverse citizenship. The claims dont have to come from the same source or be related in any way to the interest. 1397 Venue Interleader You can bring this wherever one claimant resides. 2361 Nationwide PJ and service. Rule 22, on the other hand, is regular PJ and service. The court can enjoin all other actions on the interest anywhere. The court can (1) discharge s further liability; (2) fashion a permanent injunction for the interest; and (3) make all other appropriate orders to enforce its judgment. Double Vexation Requirement: You must show actual threats demonstrating reasonable probability of double vexation once two suits are filed, you cannot initiate interpleader State Farm Fire & Casualty Co. v. Tashire, p. 727 SCOTUS 1967 The injunctive power of interpleader is limited to the interpled portion of the action. I.e. the tail cannot wag the dog. Rule 24 interventions must be timely. p. 739, n. 5. Intervention Rule 24 (Intervention): (a) Court must permit intervention when (1) federal statute says so; and (2) when disposition may practically impair movants ability to protect its interest, unless existing parties adequately represent that interest. (b) Court may permit when (1)(A) federal statute gives a conditional right to intervene; or (1)(B) intervenor has a claim or defense that shares with the main action a common question of law or fact. (2) Also, govt officers and agencies can intervene when their orders and regs are involved. (3) Court must consider undue delay and prejudice to the adjudication of the original parties right when they think about a permissive intervention motion. (c) You have to serve the motion on the parties under Rule 5 (Service Rule) and state the grounds and set out the claim or defense.
Smuck v. Hobson, p. 734 D.C. Cir. 1969 Facts: trial court finds that the school district unconstitutionally segregated. former superintendent tries to appeal as an individual and in his former capacity. He tries to do this under Rule 24(a)(2) by saying that he has an interest, but the court decides that he doesnt because he wont get his job back no matter how the appeal turns out. That leaves his standing as an individual, which is insufficient. Then one lone board member tries to appeal and also lacks standing. The board as a whole voted not to appeal. Additional grounds for assertion of inadequacy of representation: (1) applicants interests are not represented at all; and (2) applicant and his attorney are antagonistic; and (3) collusion between the rep and the adverse parties. Natural Resources v. New York, p. 738: Different motives to litigate are irrelevant if both partys have a demonstrated sufficient motivation to litigate vigorously and to present all colorable contentions.

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 2403(b) allows the U.S. to step in and show that a suit is collusive and there is no case or controversy or to weigh in on equal protection issues or other constitutional issues, even to weigh in that a suit can be decided on nonconstitutional grounds Rule 24 interventions must be timely. p. 739, n. 5. n. 6: Does an intervenor need independent SMJ? n. 7: In a 5-4 decision, SCOTUS said that you can never require someone to intervene. They always have to option to bring a suit later if they dont intervene.

----------------------------------Discovery and Summary Judgment----------------------------Discovery Rule 26

(a) Required Disclosures (1) Initial Disclosure (A) In General (i) you have to provide the name, address, and phone of everyone likely to have info supporting your claims or defenses, unless impeachment, and you have to disclose the subject of the info (ii) you also have to provide a copy or description of your evidence, unless impeachment (iii) you have to compute the damages and provide the computation (iv) you have to provide insurance info (B) Proceedings Exempt from Initial Disclosure (i) action for review on an admin record (ii) petition for habeas corpus or anything else challenging a criminal thing (iii) pro se actions while in custody (iv) action to enforce or quash admin summons or subpoena (v) U.S. action to recover benefit payments (vi) action by U.S. to recover on U.S. guaranteed student loan (vii) proceeding ancillary to a proceeding in another court, and (viii) action to enforce an arbitration award (C) Time for Initial Disclosures-General: at or within 14 days of the Rule 26(f) conference unless otherwise stipulated by court, or unless objection in proposed discovery plan. (D) Time for Initial Disclosures-Served or Joined Later: within 30 days of service or joinder unless otherwise stipulated by court (E) Basis for Initial Disclosure-Unacceptable Excuses: Disclosures to be made based on info reasonably available. No excuse due to lack of full investigation or sufficiency challenge or other partys failure. (2) Disclosure of Expert Testimony (A) In General: Must disclose experts identity if under 702, 703, or 705. (B) Written Report: Expert has to supply a written report. It has to have the following: (i) complete statement of all opinions to express and basis and reasons for them (ii) data or other info considered by the witness in forming opinions (iii) exhibits that will be used to summarize or support opinions (iv) qualifications, including list of publications authored in past 10 years (v) list of all other cases testified in during past 4 years at trial or deposition (vi) statement of compensation for study and testimony (C) Time to Disclose Expert Testimony: Must follow court stipulations. Otherwise: (i) at least 90 days before trial ready date (ii) within 30 days after other partys disclosure if intended solely to contradict or rebut another experts Written Report (D) Supplementing the Disclosure: Must supplement when required under 26(e) (3) Pretrial Disclosures (A) In General: must provide and promptly file evidence for trial, except impeachment

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(i) name, address, and phone, if not done already, for expected witnesses and witnesses to call if the need arises, delineated. (ii) list of deposition expected to use and, if not taken stenographically, transcript of pertinent parts of it (iii) list of each document or other exhibit, including evidence summaries, delineating expect to offer and may offer if the need arises. (B) Time for Pretrial Disclosures; Objections: must make at least 30 days before trial. May file objections within 14 days or as stipulated. Can object to the list of deposition under Rule 32(a) and to admissibility of the docs and exhibits. Objections waived unless excused by court for good cause. (4) Form of Disclosures: Unless ordered otherwise, all required disclosures must be in writing, signed, and served. (b) Discovery Scope and Limits (1) Scope in General: Unless stipulated, scope is any nonprivileged, relevant matter. Includes people who know where to find info. Court can order anything relevant for good cause. Relevant doesnt mean admissible if reasonably calculated to discover something admissible. (2) Limitations of Frequency and Extent (A) When permitted: court may alter under Rule 30. Court may limit number of requests under Rule 36 by order or local rule. (B) Specific Limitations on Electronically Stored Information: No req. for getting this if not reasonably accessible because of undue burden or cost. On motion to compel, must show this standard met. Court may order it anyways, if requesting party shows good cause, considering the courts rights to limit discovery. Court may specify conditions. (C) By motion or sua sponte, court may limit frequency or extent otherwise allowed when: (i) unreasonably cumulative or duplicative, or more convenient, less burdensome, or less expensive source available (ii) ample opportunity to obtain the info by discovery was already had (iii) burden or expense of proposal outweighs its likely benefit, considering (1) needs of the case (2) amount in controversy (3) parties resources (4) importance of issues (5) importance of discovery in resolving those issues (3) Trial Preparation: Materials (Codification of the work-product doctrine, Hickman p. 896) (A&B) In a nutshell, you generally cannot discover stuff prepared in anticipation of litigation and if you can because you showed a substantial need for them and cannot obtain them without undue hardship then the court must protect against disclosure of mental impressions, conclusions, opinions, or legal theories. (C) You can ask for previous statements and get them, with attorneys fees awarded if need be (4) Trial Preparation: Experts (A) You can depose experts and you can wait until you get their Written Report if you want (B) You cant if they arent expected at trial unless exceptional circumstances impracticable to obtain facts or opinions on same subject by other menas (C) Unless manifest injustice, court must require you to pay the expert a fee to respond and pay the other party a fair portion of the fees and expenses reasonably incurred in getting the experts facts and opinions. (5) Claiming Privilege or Protecting Trial-Prep Materials (A) If you withhold info and call it privileged, you must: (i) expressly make the claim; and (ii) describe the stuff in a way that lets the other side assess your claim (B) If you deliver stuff then change your mind and want to withhold it, the other side must promptly return, sequester, or destroy it and copies, cant use it till claim resolved, must make reasonable steps to retrieve it, and may promptly present it to the court under seal for claim determination. Producing party, must preserve info till claim resolved. (c) Protective Orders In a nutshell, the court can issue these for good cause to protect from annoyance, embarrassment, oppression, or undue burden or expense. The court has specified and fairly wide latitude to shape relief. (d) Timing and Sequence You have to wait till the Rule 26(f) conference or other stipulation. Unless stipulated, you can discover in any sequence and one partys discovery doesnt delay the others. (e) Supplementing In a nutshell, you must supplement timely when you learn of incompleteness or incorrectness and correction has not otherwise been made or as stipulated. This extends to expert witness stuff. (f) Conference of the Parties; Planning for Discovery

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Parties must confer as soon as practicable, and at least 21 days before scheduling conference or Rule 16(b) scheduling order due. Plan submitted w/in 14 days of conference. (3) Discovery Plan (A) timing of disclosures made or to be made (B) subjects, completion date, phases or issue focus (C) electronic issues, forms of production (D) privilege or protection as trial-prep issues (E) changes on regular limitations or local rules (F) other orders that the court should issue on Protective Orders and Rule 16(b)-(c) issues (g) Signing Disclosures and Discovery Requests, Responses, and Objections This is kind of like Rule 11 very similar. Rule 27 Rule 27 lets you perpetuate testimony when theres danger of it being lost, but for some reason a civil action cant yet be commenced. In re Petition of Sheila Roberts Ford, p. 829 Facts: Sheila is the Administratrix of her father Fred. She thinks maybe the Sheriff or a deputy shot him dead wrongfully, but apparently cant sue him without a likelihood of evidentiary support under Rule 11 and, furthermore, qualified immunity requires detailed factual allegations of a violation of a clearly established federal right. Holding: Court holds that she is in a pickle, admits the Catch 22, admits to knowing of no way out, and holds Rule 27 inapplicable. Some other court came to a different holding based on an In Pari Materia reading of Rules 11 and 27, but it was wrong. Rule: Rule 27 is for perpetuation meaning to make perpetual, preserve from extinction, or cause to last indefinitely. Kelly v. Nationwide Mutual Ins. Co., p. 832 Facts: generally denied, then tried to discover what would use for his case, rather than try to discover facts on the issues. Can he do this in Ohio state court? Case quote: Interrogatories may seek information relevant to any issue of the action and to all sides of the case. Also, Many states have liberalized their statutory procedure, pointing toward, if not actually adopting, the very extreme liberal FRCP discovery rules. This case illustrates different approaches to the concept of relevance. Here, discovery must be relevant to action issues, not pleading issues. Lindberger v. General Motors Corp, p. 835: Court allows discovery of changes to machine made after production. Generally, subsequent repairs arent admissible at trial. Court orders discovery anyways because the repairs are relevant to knowledge of the need for them and negligent maint. N. 3, p. 836: The line between info relevant to claims and defenses and relevant only to the subject matter of the action is blurry. Rule 26 allows claims and defenses and for good cause further discovery of any matter relevant to the subject matter involved in the action. WWF v. William Morris Agency, p. 836: no discovery of s contractual agreements with third parties due to lack of relevance to this contract Relevance is limited by proportionality ((b)(2)(C) Limiting Discovery) Marrese v. American Academy of Orthopaedic Surgeons, p. 837 Facts: These docs are sore about not getting into this prestigious academy and sue. They want membership admissions records for a Sherman Act (antitrust) suit. They actually lost this case in state court, then tried it under the Sherman Act in fed. court. Go figure. Posner thinks they are sore losers and just want to pilfer info via the liberal FRCP on a baseless Sherman Act claim. The Dissent thinks the claim is not so baseless, because the trial judge didnt seem to think it was. Rule: Under Rule 26(d) (Sequence and timing) the judge can look at nonsensitive discovery first to evaluate, As a threshold matter, the court should be satisfied that a claim is not frivolous, a pretense for using discovery powers in a fishing expedition.

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Rule: You must, under 26(c), compare the hardship to the discloser to the hardship to the seeker and the nature and magnitude of hardship. A first amendment interest to expression by choosing your voluntary associations in an exclusive membership organization make the hardship on the discloser HIGH in this case. Rule: Usually, the judge will require you to finish discovery before moving for summary judgment, rather than allowing some discovery, then a motion, then more discovery, then a motion, then more discovery, then another motion. Reasoning: Theres a hint of predatory discovery where didnt seek access to the fed. court system and its liberal discovery rules, till they lost their state-court suit. Rule: Methods to avoid prejudice include the Redaction Method, and the In Camera review. Dissent: Picks apart Posner and would direct to review in camera and consider redaction, but would uphold the contempt holding and 10k fine for not releasing the documents. Seattle Times Co. v. Rhinehart, p. 845 26(c) (Protective Orders) This small religious organization sues a newspaper for defamation. Newspaper compels discovery of the orgs donors and wants to publish it under their 1st amendment rights, but they cant due to a Rule 26(c) Protective Order. The US Supreme Court affirmed the Washington Supreme Court ruling that no 1st amendment scrutiny will be given to protective orders with good cause, limited to the context of pretrial civil discovery that do not restrict dissemination of the info if gained from other sources. N. 1, p. 847: good cause = moving party demonstrates that disclosure will work a clearly defined and very serious injury. Cummings v. General Motors Corp., p. 849 Facts: Theres a car crash and the co. is saying this lady reclined her seat too much or turned around and shes saying she couldnt have due to this back-looking car seat that they clam was front-looking. After losing, she challenges non-disclosure of videotapes that came up in a different trial of crash dummy baby testing with frontlooking seats. The trial judge found her motion untimely and lacking in support. Rule 26(a) requiring initial disclosures of all stuff in possession that disclosing party may use to support its claim or defenses means that if there are some relevant videotapes, but the disclosing party has no intent to use them, then they do not have to disclose them The old version required disclosure of everything relevant to the disputed facts N. 1, p. 851: Mandatory disclosure. Cons: (1) inconsistent with adversarial principles and (2) increased expense and delay. Pros: ------------------------ End 1------------------------------Materials Prepared in Anticipation of Trial Hickman v. Taylor, p. 897 Tug boat sinks, atty talks to survivors and takes notes, wants the notes, says they are privileged due to being work-product in preparation for litigation Reasoning: the notes are not protected by the attorney-client privilege. With regard to the notes and Rule 26, the atty summarized and delivered all facts before, during, and after that he knew about, isnt complaining of bad faith or defect in delivery, but rather wants the exact transcripts gleaned by atty. , moreover, has full access to the witnesses and could get the relevant info himself rather than getting the tapes and transcripts and attorney's notes regarding the stuff. Holding: The attorney must disclose facts learned, but doesnt have to produce the notes and tapes and transcripts in identical form under the work-product exception. Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney. forcing an attorney to repeat or write down whatever he remembers being told by witnesses raises grave dangers of inaccuracy and untrustworthiness. That is evidence that wouldnt qualify as admissible and reduces the atty from officer of the court to witness. This case elucidates the work-product doctrine, subsequently codified in Rule 26(b)(3). Snead v. American Export, p. 906: wants film of injuries. Court is worried about her trying to conform her testimony to the film only if it exists. The court has her deposition 1st then video.

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Impeachment is solely for the purpose of casting doubt on the veracity of a witness. The Extent of Work-Product Protection The usual view has been that the same rules of privilege apply to discovery as apply at the trial. Attorney-Client Privilege requires, p. 908 1. is or sought to be a client 2. member of bar or subordinate and acting as a lawyer 3. informed by client without strangers for purpose of securing either opinion on law or legal services or assistance in legal proceeding and not for purpose of doing a crime or tort and 4. privilege claimed and not waived by the client UpJohn Co. v. U.S., p. 908 SCOTUS Pharmaceutical co. senior mgmt. finds out about some graft in other countries. They report it to the SEC and the IRS. IRS follows up wanting info directed from emps. to General Counsil. Is it protected by the atty/client privilege? The communications at issue were made by emps to counsel acting as such, at the direction of corporate superiors in order to secure legal advice from counsel. Info, not available from upper-echelon mgmt was needed to supply a basis for legal advice c Procedure: The lower courts drew a distinction between upper level mgmt of corps and others. SCOTUS doesnt and just views everyone as an embodiment of the corp. Holding: because the emps are so many and so dispersed, the substantial need and inability to obtain the equivalent without undue hardship req is probably met, but the communications would either violate atty/client privilege or reveal attys mental processes. In either case, they cannot compel this, even through the exception. N. 5, p. 915: There are absolute and qualified privileges. Attorney/Client is absolute, no exceptions can get you around it. Others, are qualified, like for example the undue hardship qualification. Moloney v. United States, p. 916: The atty asserted attorney/client and work-product privileges, then later changed to federal self-critical analysis privilege, federal medical peer review privilege, and state statutory privilege. Court did not allow this and held them to have waived the privilege. Expert Information Krisa v. Equitable Life Assurance Society, p. 917 Penn. D.C. Equitable denied Krisas app for disability under a policy Issue: Theres a split of authority on whether core attorney work product shared with a partys expert is discoverable. Bogosian holding: core work produce generated by attorney shielded from discovery even if disclosed to an expert Other courts have held that Rule 26(a)(2) is designed to mandate full disclosure of materials reviewed by an expert witness, regardless of whether they constitute opinion work product The court does not allow compulsion of the documents from the expert that contain core work product of the attorney Close the loophole for attorney product to slip through in the expert clause of Rule 26 Expert discovery used to be limited to interrogatories unless otherwise stipulated. Sanctions and Judicial Supervision of Discovery Cine Forty-Second St. Theatre Corp. v. Allied artists Pictures Corp ., p. 920 Movie theatre owner thinks others colluded to prevent him from getting the good movies and brings an antitrust suit Cine complains bitterly that the interrogatories that they belatedly answered insufficiently were harassing, they never asked to strike them at the time. Instead, they filed similarly defective supplemental answers and disobeyed two subsequent orders compelling stuff. Issue: Does gross negligence in failing discovery orders justify the severest disciplinary measures available under FRCP 37? Theres an issue about whether they honestly didnt understand the order or willfully neglected it. Reasoning: It would be unfair and irrational to prevent a party from being heard solely because of a nonculpable failure to meet the terms. Holding: Negligence = not enough; Gross negligence = enough when it amounts to a near total dereliction of professional responsibility

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 Concurrence: wants to write about his reluctance to impute sins of counsel on clients N. 4, p. 925: The extreme sanction of dismissal or judgment is disfavored because courts are reluctant to deny a litigant her day in court.

Summary Judgment
Rule 56 (a) Claimant can move on all or part of claim. Dont need affidavits. (b) Defendant . (c) Timing (1) local rules or court orders can change these defaults (A) Can move between close of discovery and 30 days. (B) Response filed later of responsive pleading due or 21 days after service (C) Movant may file reply to response within 14 days of response service (2) Should grant if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. (d) Case Not Fully Adjudicated on the Motion (1) court should, to the extent practicable, figure out what material facts are not genuinely at issue by examination and interrogation. The court should then order those facts settled. (2) Interlocutory summary judgment may be granted and proceed only on damages. (e) Affidavits; Further Testimony (1) affidavits must be made on personal knowledge, set out admissible facts, and show competence to testify as to the matters stated. (2) Response must set out specific facts showing a genuine issue and cannot merely rely on allegations or denials in its own pleading. (f) When Affidavits Are Unavailable (1) court may deny the motion (2) court may order a continuance to enable them to be obtained, depositions taken, or other discovery. (3) court may issue any other just order (g) Affidavit Submitted in Bad Faith If an affidavit is submitted in bad faith or solely for delay, the court MUST order to pay the other partys reasonable expenses incurred. Court may also hold in contempt. Poller v. CBS (p. 961): private antitrust, 1962, SCOTUS, held complex litigation involving intent and motive should not be decided on summary judgment. Chilled complex case summary judgment for two decades. Lundeen v. Cordner, p. 961 8th Cir. 1966 Facts: Interpleader action on life insurance policy with disputed benes. Intervenor comes in with affidavits and exhibits showing that deceased did everything he could to effect a bene change before death. Summ Jud granted for Intervenor. Appeal by listed benes. Rule: an insureds attempt to change his bene will be given effect if all that remains to be done is a ministerial duty on the insurers part. Reasoning: presents no counter evidence nor in any way indicates that interveners evidence is not worthy of belief. p. 964. Mr. Burks, the fellow employee supervising the change, seems to be the key here. The court is doing a 180, and rather than requiring that his credibility be weighed at trial, they just accept what he said, due to the circumstances and lack of response on the plaintiffs part. Burk, however, (1) is apparently unbiased; (2) is competent and directly observed; (3) participated in the transaction in the regular course of his job duties; (4) the affidavits are positive, internally consistent, unequivocal, and in full accord with the documentary exhibits. Holding: A vague supposition that something might show up at trial is no longer enough. Cross v. U.S. (p. 967): income tax refund suit. Appeals court reversed summary judgment so the govt could test Professors credibility, motive, intent, and subjective feelings and reactions. A judge may not on a motion for summary judgment, draw fact inferences. The professors legitimacy could be called into question at trial, therefore trial was appropriate.

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Dyer v. MacDougall (p. 970): suit for slander, got sum jud., affirmed because even if the guy convinced a jury that all the witnesses were wrong and he alone was right, the court could still have directed a verdict against him, so why let him try? Even if the judge erred in directing the verdict, it wouldnt be appealable because it would be based solely on demeanor. Adickes v. S.H. Kress & Co., p. 970 Facts: Lady tries to take students into Library, kicked out, then store, crowded, then Kress store, kids served, but not her, then they left and she was arrested for vagrancy. She alleged a conspiracy between a police officer and the store and that her civil rights were violated. Kress moved for summary judgment and got it on the conspiracy issue. Appeal. Problem: While s reply wasnt sufficient b/c hearsay and unsworn, Kress didnt meet their burden of persuasion because they submitted nothing controverting the original allegation that a police officer was in the store. If an officer was in the store, a jury, in light of the sequence that followed could have inferred a conspiracy, even if it was just an expression of disapproval to a store employee that led to the refusal. The store manager claims that he refused to serve her because he wanted to avoid a riot One reading of Adickes is to impose a foreclose the possibility standard on the defendant that requires negating the existence of all issues in dispute. Celotex Corp. v. Catrett, p. 973 SCOTUS 1986 Asbestos claim for negligence, warranty breach, and strict liability. Procedure: Celotex moved for summary judgment because respondent failed to identify any witnesses who could testify about the asbestos exposure. produced (1) transcript of a deposition; (2) letter from an officieal of a former employer; (3) letter from an insurance company to respondent's attorney. Celotex contended that these were all inadmissible hearsay. Motion granted. Appeals court reversed under the foreclosure of all possibility rule of Adickes. SCOTUS refined the rule to showing of no material fact in dispute not proving not material fact in dispute and remanded. You dont have to produce evidence, you just have to show, i.e., point out a lack of evidence as to material fact. Summary judgment is not a disfavored procedural shortcut, but rather an integral part of the FRCP Whites concurrence: Agrees w/dissent that conclusory statements are not enough, but feels that pointing out the hearsay is enough, and agrees to remand to decide. Brennans dissent: says that Celotex was required to do more than conclusorily state that the three pieces of evidence were hearsay, but explain why they were hearsay. o Points out that you can (1) negate an element essential to the other partys claim or (2) show that the opposing party lacks sufficient evidence to establish an essential element of its claim. On remand, a divided court found that one of the letters might fall under the business records exception to the hearsay rule and that Celotex failed to challenge as hearsay that particular document, which made it admissible. Ultimately, Ms. Catrett indicated intent to call the letters writer as a trial witness, which would change it from hearsay to admissible evidence. The dissent on remand said that the mere listing of a witness, without claiming that the witness has personal knowledge of asbestos exposure, does not constitute specific facts and is not enough. Also, failed to answer a bunch of interrogatories. Scott v. Harris, p. 981: Trial court denied summary judg, appellate affirmed, SCOTUS reversed. Guy tells a story that he was trying to pass a driving test or something. Peace officer tells the story that he was driving recklessly and endangering lives. Guy was seriously injured when officer forced him off the road. Guy tries to argue excessive force (4th ammdt). SCOTUS thinks that the videotape eviscerates the guys testimony and leaves no material issue of fact. Anderson v. Liberty Lobby, Inc., p. 984 Libel lawsuit requiring actual malice, i.e., knowledge that the statements were false or with reckless disregard of whether they were true or false. SCOTUS (White): Issue is whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of evidence required by the governing law or that he did not. Holding: The clear-and-convincing standard of proof should be taken into account, but the judge should not decide facts or take over any of the jurys role. Matsushita Electric Industrial Co. v. Zenith Radio Corp., p. 986 SCOTUS 1986

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Trial court granted motion blocking antitrust suit against Japanese TV makers, appellate reversed, SCOTUS pointed out two errors; (1) the direct evidence had little if any relevance to the predatory pricing conspiracy; and (2) the court failed to consider the absence of a plausible motive to engage in predatory pricing.

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