The Mother of All Civ Pro Outlines

Mention Rule 11 for any motion, lest your grade get sanctioned. She wants us to make arguments concerning fact patterns, not legal theories Show what is not there (this section doesnt apply because) Analyze SMJX, PJX, VENUE, CHOICE OF LAW, every time you get the chance.

SMJX CHECKLIST 1332 covers diversity o citizen of different states presence+ intent to remain=citizenship (does not change until you get there). Corporation is a citizen where it is incorporated (multiple) and its single principal place of business [nerve center, center of operations] Construe against citizenship changes. Allapattah: no SMJ where complete diversity is lacking (quoting Strawbridge) the whole suit may be dismissed following Allapattah, but not always the case. o person seeking federal forum has the burden of proving JX Must have legal certainty that party will recover > $75k o you can argue amount in controversy if it is not backed up by hard facts [bills] 1367 covers supplemental jx o Has to relate back to original claim (same case or controversy under US constitution), check independent jx regardless! If issues w/ two P and two D and jx is lacked by second P 1367b would kick it out, but Rule 47 would allow it to be combined from 2 suits to 1. (allapattah) Congress would need to change 1367 to get around this 1367b prohibits claims by Ps against Rule 14, 19, 20, 24 defendants if diversity o Look for 1367 exceptions that would blow up diversity under 1332.

1331= fed Q Federal Question Jx (1331) is a matter arising out of the Constitution (article 3) i. To have a claim that is not so attenuated and unsubstantial as to be absolutely devoid of merit. Newbury water co. v. Newburyport (1904). ii. Mottley well-pleaded complaint Analysis: Grable: Does a state-law claim necessarily raise a stated federal issue, actually disputed and substantial? i. Substantial: how does it affect the current balance of power b/w State and Fed courts? 1. Also, in dispute: its the critical issue in the case. ii. Clue: no private C of A + no express preemption = likely no SMJX. 1367(b)s exceptions do not apply to 1331 claims. BUT: once you have 1331 JX you can pick up anything transactionally related.

Personal jx checklist: Can contest through special Appearance Cannot be served on special appearance, under fraud/duress, or when in state for defending court action.
1) Can be waived explicitly or through contract. 2) Citizen of state sued in 3) Served in forum state. (Burnham) a. Exception: No Tag JX for corps, or Tag for persons when contesting on special appearance. 4) 4K bulge: applies only to parties under rule 14 and 19. 5) All others: 4K, state long arm statute, notice, comports with due process/constitutionally consistent. a. Does claim arise out of contacts? i. YES: Specific JX 1. Minimum contacts +Fairness of exercising JX a. Min contacts: i. Enjoying benefits of doing business in state. ii. Stream of commerce iii. Foreseeability of being in court iv. Zippo scale v. Single contacts depend on fortuity/unilateral act by P or other actor: 2. Fairness: a. Factors from ASAHI i. If forum state has no real interest, and D has high burden (international context, P is from forum state, etc.) then no JX due to lack of fairness. Yes, minimum contacts International Shoe 10 employees; purposely availed McGee 1 K, directed acts by mail; accepted $ Burger King Large K; forum selection clause implies foreseeability; no bargaining disparity; not required to physically enter No, no minimum contacts WWVW No availmentunforeseeable Hansen Fortuitous; unilateral; interests of justice Asahi Fairness over foreign ; mere awareness not enough; dead Justices

Hustler Exploited market; fairness = states interest Calder Directed effects at state Zippo Purposeful availment; not required to physically enter Bird The inference of DOMAIN NAMESarise from operative facts of contacts

b. NO: General JX i. Systematic + Continous contacts: 1. Is there a physical presence? a. Factors from Perkins & Bird. i. Examples of what counts (when added together): office in state, carrying on correspondence and meetings related to business, payroll from in-state accounts, dealings with corporate policies outside of state, engaging bank to act as transfer agent (basically, running the whole business). ii. What doesnt count: some visits, purchases at regular intervals (from or to) (Helicopteros) iii. Minority Rule: MIT v. Micron (2007-D.Mass): out of state corporation held subject to general JX because it was registered to do business in MA, had customers in MA, and those customers were serviced by salesmen in neighboring NH. Others such as this Gavigan v. Walt Disney World Co (1986 E.D. PA):Disney world subject to general JX in PA: targeted marketing, ticket sales, products, reps promoting travel to DW.

Venue Checklist
12(b)(3): Can only be done by original parties. o Remember that 3PD cannot object to venue Venue can be waived explicitly or by failing to 12(b)(3). 1391(a) (diversity) o district of any D if all D in same state o substantial part of the action occurred o where any D is subject to PJX if nowhere else works (note: mention that this is N/A to0 get points) 1391 (b) (fed question): same 1 and 2 but language of 3 says where any D may be found 1391 (c): Corp resides in district where it is subject to personal jx. If no such district, then district with most significant contacts./ 1404 (a): Change of venue: o Things to consider (Lyons): (1) convenience of witnesses (2) location of documents and relative ease of access to sources of proof. (3) convenience to parties, (4) locus of the operative facts, (5) availability of process to compel attendance of witnesses, (6) relative means of the parties, (7) forums familiarity with governing law, (8), weight of Ps choice of forum, (9) trial efficiently and the interest of justice based on totality of circumstances. Cure of Waiver of Defects: o 1406 (a): court can dismiss or transfer(if in the interest of justice) to district or division where venu is proper. o 1406(b): If party doesnt object, too bad, they are stuck. NOTE: SC allows suit in court that lack venue and PJX to transfer for court that has both. In that case, no van dusen rule, so transferee forum law governs.

Erie Analysis:
State in which district court is found applies state choice of law doctrine (Klaxon) o If unknown, then Weber v. Sobba (guess) If transferred Venue, stays the same (Van dusen) Whats the conflict? State law v. ____? Statute? FRCP? Common law? Local Rule? Constitution? Treaty? o Constitution, treaty, then no Erie, apply Fed law (RDA). RDA: State substantive law to apply when in Fed court. Clearly substantive, bound up, changes substantive rights? (first box) EX: Substantive purpose, regulates conduct outside courtroom, part of substantive statute (exL burden of proof). o If yes, State law o If no, Continue on: Is there a statute or FRCP on point broad enough to cover the question and create a conflict with the state rule? (hanna) o NOTE: here is the place to make the judicial interpretation argument, if there is an FRCP that has been interpreted by the court. Option 1: interpretation is part of the rule (dont do it themselves), not an extension of what language says. Option 2: interpretation is not part of rule, only the language of the rule is (textualism). Interpretation is an extension = common law. If No: Erie path o Is it outcome determinative? By this we mean the twin goals of Erie: Forum shopping b/w state and federal forums? Inequities? If No, apply Federal law. If yes, are there countervailing federal interests (constitution, national security, etc. BIG STUFF0 If yes, maybe apply state law If no, apply state law If Yes: Is there a direct conflict? (walker) o If yes, then is the rule arguably procedural under Hanna, like rule 35 was in Sibbach? (BTW: you are pissing off congress, SC, advisory committee) If yes, then Apply federal law If No, apply state law. o If No, Apply state law.

PLEADINGS, ETC. I. Introduction a. FRCP 1, 2, and 3 i. 2: there is one form of action-the civil action ii. 3: civil action is commenced by filing a complaint with the court Pleading-The complaint a. FRCP: 7, 10, 8(a), 8(d), 8(e), 9(b), and 84 i. 7: Allows a complaint, answer (to complaint, counterclaim, crossclaim), third-party complaint, answer to third-party complaint, court-ordered reply to an answer 1. (b)(2): rules governing captions and other matters of form apply ii. 8(a): claim for relief must contain short and plain statement of the grounds for jx, short and plan statement of the claim, and demand for relief sought 1. Emphasis on short, plain statement: we do not need every single fact iii. 8(d): Pleading to be Concise and direct. No technical form is required. A party may state as many separate claims or defenses as it has, regardless of consistency (3). iv. 8(e): pleadings must be construed so as to do justice 1. -for pleadings, its not a game of skill, can't be thrown out for technicalities 2. -purpose of complaint/pleading rules->to give the defendant fair notice v. 9(b): in alleging fraud or mistake, a party must state the circumstances. Conditions of a persons mind may be alleged generally. vi. 84: forms in the appendix suffice under the rules and illustrate simplicity/brevity b. Forms: 1, 7, 11: 1 (caption), 7 (statements of jx), 11 (complaint for neg). 11 states you need the date, place, the amount to be recovered, and that the plaintiff was injured. i. The point is that everything is very brief and very simple. The facts that are necessary are there, but there is not true evidence. c. Conley v. Gibson i. Facts: African American union members, RR fired/demoted them, union didn't protect them ii. Procedural Posture: Plaintiffs sued for declaratory, injunction, damages; Defendant's motion to dismiss on subject matter jurisdiction because the plaintiffs failed to join the RR as a party and because the plaintiffs failed to make a claim; federal district court granted dismissal on SMJ, Court of Appeals affirmed, Supreme Court reversed iii. The Defendant argued that there were not enough facts in the complaint to show liability (not entitled to relief)-substantively sufficient 1. Must assume the Plaintiff's arguments are true [footnote 1 on page 39] iv. Also not enough information to provide fair notice-formally sufficient 1. -this is 8(a)(2)->Defendant can claim that they did not do this under 12(b)(6) v. Concerning MTD->even if you expect to lose on a MTD, you can file to get more information from the Plaintiffs d. Swierkiewicz v. Sorema i. Facts: Plaintiff is employed by Defendant, Plaintiff is Hungarian, 49 y/o, Demoted and fired, Replaced by younger, non-Hungarian ii. Procedural Posture: Plaintiff sued on age and national origin discrimination, Def moved to dismiss on 12(b)(6) for failure to state a claim, District court dismissed, Court of Appeals affirmed, Supreme Court granted cert and reversed and remanded

II.

III.

iii. Supreme Court says that the Plaintiff would win if facts taken as true 1. According to Conley, "a court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations" e. Can the Court infer unalleged facts from alleged facts? i. the answer is sometimes. When do we draw the line? ii. Pleading is not a game of skill v. more cases to expensive pre-trial iii. the big tension in Courts. More Courts are likely to allow reasonable inferences from the alleged facts f. So why include facts? i. convince Judges, Defendants, be persuasive ii. do not be tedious iii. sometimes there are too many facts, too much alleged, etc. g. Bell Atlantic Corp v. Twombly i. says that the standard is plausibility ii. "Factual allegations must be enough to raise a right to relief above the speculative level" iii. "Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed" iv. the Courts never really said that "there was nothing in this complaint to provide relief, but I can imagine a set of facts that would" v. the facts/allegations must be more than reasonable, more than speculative, they must be plausible vi. Twombly says re: Swierkiewicz: formal, not substantive vii. the Plaintiff did not allege enough to infer discrimination, which is a substantive issue, since there was notice it was a discrimination case viii. Supreme Court is dealing with lower Courts that are doing something incorrect in importing how discrimination cases are litigated into how they are pleaded ix. although Swierk focuses largely on formal sufficiency, and Twombly implies same, that cannot be the case, since it is substantively sufficient as well x. Twombly was dismissed because it cannot possibly be inferred: Plaintiffs here have not nudged their claims across the line from conceivable to plausible h. There is a thin line between not pleading enough and pleading yourself out of court Pleading-Responses a. FRCP 12 i. (a): defendant must answer within 20 days after being served, party must serve an answer to a counterclaim or crossclaim within 20 days as well 1. 60 days if service waived ii. (b): how to present defenses->you can do it through a motion or in an answer. 1. In our motion to dismiss, we include a memorandum which explains why it should be dismissed. You cannot include facts that are not in evidence. You can attach a sworn statement (affidavit) that gives more information. 2. (1) lack of jurisdiction over subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted and (7) failure to join a party under Rule 19. iii. (d) If matters outside the pleading are presented to and not excluded by the court, the motion must be treated as one for summary judgment

iv. (f) Court my strike redundant, immaterial, impertinent, or scandalous matter v. (g) a motion under this rule may be joined with any other motion allowed by this rule. A party that makes a motion under this rule must not make another motion under this rule. vi. (h) A party waives (2)-(5) by omitting it from a motion/responsive pleading. The rest can be raised in any pleading, motion, or at trial. The Court can also dismiss for SMJ at any point vii. (i) any defense listed above must be heard and decided before trial unless the court orders a deferral until trial b. FRCP 8(b) and 8(c): the Answer i. (b)->admit, deny, lack knowledge. The effect of failing to deny is that it is admitted. 1. you can admit, deny, or say you have insufficient knowledge [disclaimer under 8(b)(5)] 2. you can respond to inferred charges "deny that DEF was driving negligently (or any other wrongful act)" 3. try and aver good behavior instead of denying bad behavior 4. you can always request for more time if you don't yet have the information on one of the allegations ii. (c)->affirmative defenses must be raised. The court also must, if justice requires, treat pleadings as if it were correctly designated 1. everything plaintiff says might be true, but I'm still not liable c. King Vision Pay Per View v. JC Dimitris Restaurant i. For too long the Court has dealt with poor pleadings and that Rule 8(b) is simple: admit, deny, or dont have enough information. There is no such thing as demanding strict proof thereof, even if some judges have treated such demands as denials. The Judge finishes his opinion with a warning to others who would file such pleadings, though he does end up backing off in 2001: he gives to defense counsel who file pleadings with errors a list of common errors and makes the attorney fix them without charging the client. ii. The notes make it known that there are traps: sometimes you can amend your answer, but that is not always true. Further, you must specifically deny allegations so that the Plaintiff understands what arguments you are making. d. Carter v. United States i. This case relates to whether or not the maximum amount of $530,000 for noneconomic damages must be raised as an affirmative defense. A cap on damages is only a partial defense, but that is true of any defense that is limited to the amount of damages, and in that respect it is no different from comparative negligence, which clearly is an affirmative defense. However, it is contingent on the amount of damages sought, which the plaintiff is not required to set forth in his complaint. The Court says it does not need to take sides, since failure to plead an affirmative defense in the answer works a forfeiture only if the plaintiff is harmed by the defendants delay in asserting it, and there was no harm here. Neither form of harm (if the plaintiff had some leeway in classifying damages or if knowledge that

IV.

noneconomic damages were unavailable would have induced more time/effort to proving economic damages) were argued. ii. While Rule 8(c)(1) lists nineteen affirmative defensive, federal courts have identified more than twenty defenses that are not mentioned but fit under the any avoidance or affirmative defense, including wording. While the Court has dismissed cases based on statute-of-limitations defenses that were not raised by the defendant, Scalia has argued that the defendant forfeits such defenses by not raising them and thus the court must not raise defenses for parties. Pleadings- Amended and Supplemental Pleadings a. FRCP 15 i. (a): Amendments before trial. A party may amend its pleading once (a) before being served with a responsive pleading; or (b) within 20 days after serving the pleading if a responsive pleading is not allowed and the action is not yet on the trial calendar. 1. In other cases, may amend with the opposing partys written consent or the courts leave (freely given when just so requires) 2. Unless the court says otherwise, required response to amended pleading must be made within time remaining or within 10 days of service, whichever is later 3. Courts would deny if it prejudices D ii. (b) Amendments during and after trial. If a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. Court should freely permit this when it will aid in presenting the merits. 1. When an issue not raised by pleadings is tried by the parties express or implied consent, it must be treated as if raised in the pleadings. iii. (c) Relation back. Amendment relates back to date of original pleading when (a) the law that provides the applicable statute of limitations allows relations back; (b) the amendment asserts a claim or defense that arose out of the conduct, transaction or occurrence; or (c) amendment changes the party or the naming of the party against whom a claim is asserted iv. (d) Supplemental Pleadings. Court may permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. b. Dubicz v. Commonwealth Edison Co. i. Despite the fact that Appellants trial counsel took eight months to file a second amended complaint, the district court erred in denying appellants motion for leave to amend. The court held that delay by itself is normally an insufficient reason to deny a motion for leave to amend. Since this case did not prejudice the non-moving party, the court held that it was proper, no matter how exasperating the delay was. ii. Foman v. Davis is the classic case for 15(a)(2): It defines justice in a negative sense; it lists specific injustices undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed,

V.

undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. c. Tran v. Alphonse Hotel Corp. i. District Court granted motion to amend on the basis that the amendment adding the RICO claim to the original claim under the Fair Labor Standards Act. The Court ruled that the original claim did not refer to general acts of fraud or other predicate acts that might support a RICO claim and thus, the claim did not relate back to the original complaint. Pleadings- Policing Pleadings and Motions [Sanctions] a. FRCP 11 i. (a): Signature ii. (b): representations to court. By presenting to the court a pleading, written motion, or other paper, an attorney or unrepresented party certifies that to the best of the persons knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: 1) not improper; 2) warranted; 3) have evidentiary support or will after discovery; and 4) denials of factual contentions are warranted iii. (c) Sanctions. If 11(b) has been violated, the court may impose an appropriate sanction and the law firm (usually) will be held jointly responsible. A motion for sanctions must be made separately or on the courts initiative. No monetary sanction on its own unless it issued a show-cause order or against a represented party for violating 11(b)(2) iv. (d) this rule does not apply to discovery b. Patsys Brand v. IOB Realty i. Defendant submitted an affidavit and the Court concluded that, rather than risk offending and possibly losing a client, counsel simply closed their eyes to the overwhelming evidence that statements in the clients affidavit were not true. It is important to note that the predecessor counsel (who withdrew) had already stated that this story was false. The fact that the firm (Pennie & Edmonds) said they acted in good faith is not enough. There was no objective reasonableness. The Court held that the publication of the Opinion was enough of a sanction, but is concerned about big firm mentality. c. In Re Pennie & Edmonds LLP i. Vacates the sanctions from above. Because Judge Martin accepted P&Es representation that its lawyers acted with subjective good faith, the Rule 11 sanction must be vacated. The dissent believes that this is not the way to read the Advisory Committees intent. However, the majority says that a lawyer can use the defense of subjective good faith when the lawyer does not have the 21-day safe harbor, provided in Rule 11(c)(2) to correct or retract a sanctionable statement. d. Frantz v. United States Powerlifting Federatoin i. The suit filed was frivolous, given a court case decided a year before this suit. The court decided that the case may be sufficient in form but sanctionable because counsel failed to conduct reasonable investigation before filing. Despite the fact

that the attorneys fees were for 40 hours in filing a response, the Court held that they were not excessive.

Discovery
o RULE 26: Limits on discovery: relevance, privilege, proportionality. Evidence need not be admissible at trial to be discoverable. Just has to be have a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence (evidence rules meaning in rule 26(b)(1) is as least as broad). Sanyo Laser Product v. Arist Records (2003 S.Dist Indiana): parties are able to obtain discovery that is relevant to the subject matter involved in the pending action if good cause is shown. Party resisting discovery has burden to establish the lack of relevance by demonstrating that the requested discovery is of such marginal relevance that the potential harm would outweigh the ordinary presumption in favor of broad disclosure. Three reasons for limiting Disco (26(b)(2)(C): (1) unreasonably cumulative or duplicative or can be obtained from some other source that is more convenient, less burdensome, or less expensive, OR (2) Party seeking disco has had ample opportunity to obtain the info by discovery in the action, OR (3)burden or expense of the proposed discovery outweighs its likely benefits, considering the needs of the case, the amounts in controversy, the parties resources, the importance of the issue at stake in the action, and the importance of the discovery in resolving the issue.

What is discoverable under 26(b)(1)? o Parties trying to discover can get it if it is relevant to the subject matter involved in the pending action if good cause is shown (Sanyo Laser Products v. Aristo Records) If party resists discovery, then discovery can be compelled under rule 37. Party resisting bears burden of showing that info should not be discoverable. (Sanyo Laser Products v. Aristo Records) Standard for denial: if the discovery sought is unreasonably cumulative, or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive.Also, before denying, the court should consider the totality of the circumstances, weighing the value fo the material sought against the burden of providing it, and taking into account societys interest in furthering the truthseeking function in the particular case before the court (Sanyo Laser Products v. Aristo Records (2003, dist ct. of SW Indiana), court granting motion to compel answers to interrogatories and document requests). Limits on discoverability of Electronic Stored Information (ESI)

Court must limit if it is unreasonably accessible due to burden or cost (26(b)(2) EXCEPT for a showing of good cause from other party. Reasonably accessible is defined as either active online data, near line data (ex: disks), storage archives (ex: organized disks/tapes). Unreasonably accessible is either unorganized tapes (sequential recording) or erased/damaged/fragmented files. (Zubulake as used in Aubochon v. Benefirst) If unreasonably accessible, then good cause showing is determined by a balancing test of the following seven factors, weighted first to last: 1. Specificity of discovery request 2. Quantity of information available from other and more easily accessed sources. 3. The failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources 4. The likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources 5. Prediciotns as to the importance and usefulness of the further information 6. The importance of the issues at stake in the litigation 7. The parties resources. NOTE: court also said that these factors were not to be applied mechanically but to be aimed at the central issue of how important is the sought after evidence in comparison to the cost of production? o If test warrants discovery then it can be compelled at either partys expense. (cost shifting under 26(b)(2) court may specific conditions for the discovery.

o o o

Electronically stored information (ESI): see rule 26 in supplement + case on point (healthcare one). 7 factors in there Mechanics Scope Attorney/Client Privilege & Work Product doctrine

Case management: o Rule 16: pretrial conferences, scheduling, Management.: judge makes schedule. Can manages procession of case. Can only modify orders to prevent manifest injustice. Can issue any just sanction if an attorney is unprepared, doesnt show up, or fails to obey an order. o Tower Ventures v. City of Westfield (2002 1st cir): Dismissal of Ps case when violating scheduling orders is fine so long as P has committed extreme misconduct. Disobedience of court orders counts as such. IF you dont have a good faith reason, you can get slapped down like that. RMR v. Muscogee County SD: (1999-11th circuit): Extra witness shows up late in the case, wasnt listed on the pretrial order: Didnt get to testify, court of appeals upheld it. Of course, the point of managerial judging is to avoid all of this sort of stuff (judge got surprised here).

Judge and Jury: o 7th amendment: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. So, not everything in a jury trial has to be tried by the jury. Rather, Markman v. Westview Instruments (1996): Court outlines how it looks at a 7th amendment claim to a trial by jury. Uses two tests: Historical Test: Is the cause of action one that either was tried at common law at the time of the founding, OR is at least analgous to one that was? (If action is based on statute, then must a jury be used to protect the common law version of it that existed in 1791?). IF yes, then jury trial. Is the interest being decided within a jury trial necessarily a jury interest? In other words, does the issue at hand need to be tried by a jury in order to preserve the substance of the common-law right of trial by jury? Markman hearings come out of this wherein the judge decides what the scope of the claim is in pre-trial hearings. o Summary Judgment: Rule 56: Excerpt: The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Celotex Corp v. Catret (1986): The plain language of rule 56(c) mandates the entry of SJ, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that partys case, and on which that party will bear the burden of proof at trial. Principal purposes of SJ is to isolate and dispose of factually unsupported claims or defenses. Rule 56 should be interpreted in a way that allows it to accomplish that. NOTE: Non moving party does not need to present evidence in a form that would be admissible at trial,

NOTE2: judge can grant SJ sua sponte Anderson v. Liberty Lobby: definitions of material and genuine: Material: Substantive law identifies it as only disputes of fact that affect the outcome of the suit under the governing law are considered material. All else is irrelevant and will not stop SJ from being entered. Genuine: evidence is such that a reasonable jury could return a verdict for the nonmoving party. NOTE: judge is not supposed to weigh the evidence. Rather, judge is supposed to determine if there is enough evidence to go to trial. Standard for SJ the same as it is for JMOL (directed verdict), under rule 50. Scintilla rule is out, new rule is that there has to be enough evidence that a jury could properly find for party producing it. Scott v. Harris (2007): (1) quotes Adickes v. SH Kress.: courts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the *summary judgment] motion. (2) Then, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for the purpose of ruling on a motion for summary judgment. Car chase video case.

Judgment as a matter of law & new trials: Rule 50: JMOL appropriate If party has been fully heard and no reasonable jury would have a legally sufficient evidentiary basis to find for the party on that issue. Motion can be renewed after jury verdict so long as it was brought before verdict (renewed, duh) NOTE: some interaction with the rule 59 motion for a new trial. Reeves v. Sanderson Plumbing products, inc. (2000): Court to stay out of making any determinations about credibility of witnesses, etc. Prima Facie case of discrimination (even in case with higher pleading standard), coupled with evidence to rebut Ds defense is not grounds to grant JMOL for D. Basically, if you make a prima facie case, you get to the jury.

Rule 59: motion for a new trial. Court can do so on motion or sua sponte after the trial (10 days). Much more lenient standard to grant than JNOV. Montgomery Ward & co. v. Duncan (1940): The motion for a new trial may invoke the discretion of the court in so far as it is bottomed on the claim that the verdict is against the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to the party moving; and may raise questions of law arising out of alleged substantial errors in admission or rejection of evidence or instructions to the jury. Unitherm v. Swift-Ekrich (2006): If party files 50(a) motion, but fails to file 50(b) motion (or rule 59), the denial of a 50(a) motion is not appealable. (so no appeal about DV, JNOV, or new trial). Other random thoughts: suits that are just about injunctive relief, not damages, do not necessarily need jury trials. If you win trial one, opponent gets a 59 motion granted and you lose trial two, then you can appeal both the result of the new trial and the 59 motion that got it there to begin with. Standards of review: Directed verdict, JNOV and sum judge: De novo New trial motion: Abuse of Discretion 50c: more often than not, if the judge goes with the JNOV, they will also conditionally give the new trial.

Joinder:

o o

Counters and Crosses. 13(a): compulsory counter (trans/occurance) gets SMJX Claim joinder: Rule 18 allows claim joinder. (note: no claim splitting under preclusion doctrine). EX: P v D (tort and K claim at same time) Painter v. Harvey (1988-4th circuit): standards to look at for determining if a counterclaim is compulsory: (1) largely the same issues of law and fact, (2) Would res judicata bar subsequent suit absent the compulsory counterclaim rule? (3) will substantially the same evidence support or refute the claim as well as the counterclaim? (4) is there any logical relationship b/w the claim and counterclaim? Party joinder Permissive and necessary parties Permissive parties can be joined under rule 20, so long as they are being joined in an action based on the same transaction or occurrence and there is any question of law or fact common to all Ps and Ds. Dont get tricked here, a P can permissively join a pair of Ds so long as they are jointly, severally, or alternatively liable for something coming out of the same transaction or occurance AND any q of law or fact is common to all Ds. EX: P + P v. D + D Impleader: Lehman v. Revolution Portfolio (1999 1st cir). Impleader only usable for derivative liability AKA indemnification and contribution That is when the 3pD is liable to the 3pP if 3pP is found liable to P. Note, cannot be used if 3pD is liable instead of or in addition to the 3pP (aka D). Hence why BE in the exam couldnt be impleaded. Must file within 10 days of submitting answer or else has to ask for leave of the court to do so (court should allow it if there is a colorable claim of derivative liability and it will not unduly delay or otherwise prejudice the ongoing proceedings). If you can get an impleader going you can tag a claim under rule 18 to it as well even if the rule 18 claim is not transactionally related. Impleaded party cross claims:

Asher v. Unarco (2008, ed KY): Limited opinion. If one of two codefendants implead a 3rd party, the other cannot go after impleaded party using corssclaim device (works in opposite as well). Thomas v. Barton Lodge (1999 5th cir): to not allow 3pD to crossclaim against original D means that they would have to file separate suit and then move to consolidate them. Nonsensical idea, so crossclaim allowed. Crossclaims definitely OK for parties of like status. EX: two partied impleaded as joint tortfeasors. Rule 19 Required Parties: Makah Indian Tribe v. Verity (1990 9th cir): If a party is indispensable, then the suit needs to be dismissed if they cant be joined. Here is the test: Figure out if the party is necessary by (1) is complete relief possible among those already party to the suit? If yes, then joinder needed. If no, then party not needed (2) does the absent party have a legally protected interest in the suit? (see p. 391 for what qualifies). If yes, then (a) will suit impede persons ability to protect interest? (b) could it leave an existing party subject to a substantial risk of inconsistent or double obligations because of the interest? If yes, then joinder needed, if no, joinder not needed In no, then joinder not needed IF party is necessary, then look to 19(b)(1-4) for factors that court should consider before continuing or dismissing suit.

Preclusion: o Two types: Claim Preclusion and Issue preclusion: o Dont forget full faith and credit. Claim Preclusion: Restatement (2d) of judgments: 17Effects of Former Adjudication: Except on appeal, or other review, judgments are conclusive as follows: If for P, claim is extinguished and merged into judgment. New claim may arise on the judgment (enforcement). For D, claim extinguished, subsequent claims barred. Whether for P or D, conclusive in subsequent actions b/w them on any claim that involves issue determined as part of this judgment. 24: dimensions of claim for purposes of merger or bar. Claim extinguished includes all rights to remedies against D from all or part of the transaction or series of connected transactions out of which action arose. What a transaction or connected series is depends on how they are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to parties expectations or business understandings or usage. VERY ARGUABLE. This all prevents claim splitting, wherein a P sues D twice on two claims coming out of one situation. Does not prevent P from suing for declaratory judgment, then injunction or damages later. Also, does not prevent P from refilling claim if procedurally thrown out of court (venue, etc.) Rush v. City of Maple Heights (1958Ohio SC): Cant split your injury and property claims against single party if it all comes out of the same occurrence. Issue preclusion: Mutuality doctrine: both parties need to be party to prior suit. Non-mutuality: only one party needs to be in prior suit. Restatement (2d) of judgments:

27: issue preclusion: If issue decided in a judgment, determination is conclusive in subsequent action b/w the parties whether on same or separate claim. 28: exceptions (see page 331 of casebook) Parklane Hosiery v. Shore (1979): (1) it is a violation of due process for a judgment to be binding on a litigant who was never a party or a pricy therefore has never had an opportunity to be heard. (2) Under BlonderTongue defensive collateral estoppel (P loses against other D on same issue, D can block Ps new suit). (3) if P could have easily joined earlier action, or if it would be unfair to D (ex: opposing results), then no offensive collateral estoppel. BUT: if not the case, then offensively estopp away!

Personal JX & Venue o Basic Information

Rule 4(K)is where it all starts:

A Defendant is subject to personal JX of a district court when they would be subject to personal JX in a court of general JX in the state that the district court is located in. An impleaded party or a defending party required to be joined is subject to personal JX when served within a judicial district of the US and not more than 100 miles from where the summons was issued. When authorized by a federal statute.

There also must exist a state long-arm statute that grants the state the ability to go after out of state Ds.
A person can always consent to personal JX. When a Plaintiff files suit s/he consents to personal JX in the court s/he has filed in. You can always sue a Defendant in the state in which they are a citizen, or if you serve them in the state that trial will happen in. Federal courts are treated the same as state courts when it comes to personal JX. 3 major problems that courts have to deal with when it comes to choice of forum: Convenience, Bias, and Choice of Law.

o Then, does claim arise out of contacts? OConnor v. Sandy lane hotel (2007 3rd circuit): summarizes the state of the law
to see if claim arise out of contacts. Says there are three tests courts use: (1) Proximate cause test (are Ds contacts relevant to merits of Ps claim?) (2) Butfor causation: but-for Ds contacts, would P be harmed? (3) substantial connection of discernable relationship (court rejects this argument, but refuses to adopt other two). THEN, court cops out and goes flexible, holding that specific JX is the cost of enjoying the benefits of doing business in the forum state.

o If so, Specific JX needed, head for Minimum Contacts and Fairness

Pennoyer v. Neff (1878): No state can have JX over an out of state person even if the out of stater has substantial connections to the state. (two exceptions: when a piece of property was at issue, or when the D was served within the state).

International Shoe v. Washington (1945): To get in personam jurisdiction, there needs to be a claim arising out of the Ds conduct, and then minimum contacts + fairness. OR there need to be systematic and continuous contacts if the claim does not arise out of the conduct. This is the split between specific and general JX. There also must exist a state long-arm statute that grants the state the ability to go after out of state Ds. But what about cases where there is a single contact b/w D and the state? Mcgee v. International Life Insurance Company (1957): Life insurance policy holders estate can sue out of state insurance company that refused to pay where policy was only contact. Hints at states interest in providing redress for these types of situations. Hanson v. Denckla (1958): When trust owner moved from DE to FL, trustee in DE was not subject to suit in FL. Court says that It is essential that there be some act by which the D purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. The unilateral activity of Donner in moving to FL cannot satisfy the requirement of contact with the forum state. NOTE: No one disputed that FL law could be applied if the DE court chose to do so. Losing argument: since FL law could apply, FL should have PJX as well. WWVW v. Woodson (1980): The forum state does not exceed its powers under the due process clause if it asserts personal JX over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state NOTE 1: when a corporation purposefully avails itself of the privileges of conducting activites within the forum state, it has clear notice that it is subject to suit there, and can act to alleviate the risk. Sticking product into the stream of commerce that ends in that state fulfills this. NOTE 2: In the present case, WWVW did not do this, so they were off the hook for PJX. The unilateral move by P to take car to Oklahoma was viewed as being analogous to the move in Hanson v. Denckla to FL. Losing argument: the contacts test from Intl Shoe was just a way of giving content to the determination of fairness and reasonableness. The reality is that all

companies anticipate their stuff being mobile and should anticipate being sued in other places. NOTE 3: Gets into the fairness test, and includes in the calculation the burden on D, the forum states interest in adjudicating the dispute (originally from Mcgee). Ps interest in obtaining convenient and effective relief when that interest is not adequately protected by ability to choose forum, the interstate judicial systems interest in obtaining the most efficient resolution, and the shared interest of the several states in furthering fundamental substantive social policies. Stream of commerce ends with the consumer. Keeton v. Hustler Magazine (1984): P sues D magazine in state with small circulation and where P was not a resident. Court rules (1) that Ps status is N/A, (2)that D deliberately exploited the states market, and (3) state has an interest in discouraging the deception of its citizens, so JX is proper. Calder v. Jones (1984): intentionally tortuous libel aimed at the forum state and specifically at a forum states resident, but done outside of it is enough for PJX in the state as the effects of the conduct happened in forum state. Burger King corp. v. Rudzewicz (1985): If D never enters state, but purposefully directed business efforts towards the forum state, then PJX exists in forum state. NOTE1: A contract on its own is not sufficient to grant PJX, but the court will look to see if the contract reflects a prior negotiations and future consequences aimed at the forum state. If so, then minimum contacts exist. Losing argument: exercising PJX would result in small time consumers being hauled into foreign states to pay up on small contracts. Sup Ct. gets rid of this by claiming that guy was big time business and so a disparity in negotiating power didnt exist. IF HE WAS SMALL TIME BUSINESS THIS MIGHT GO DIFFERENTLY. Asahi Metal Industry v. Superior Court (1987):crazy decision. See below Part 1: unanimous: the facts. Part 2a: four: putting something into the stream of commerce, even if where it lands is foreseeable, is not enough for JX unless the product is purposefully directed towards the forum state. Part 2b: eight: if forum state has no real interest, and D has high burden (international context, P is from forum state, etc.) then no JX due to lack of fairness.

Part 3: four: no min contacts (4) no fairness (8), judgement reversed (8). Brennans Dissent (4): Thinks minimum contacts have been met, but fairness has not. If D is aware that the final product is marketed in the forum state, then they are aware of the possibility of suit. Also, they may not seek the benefit of the laws of the state, but they still receive them, so minimum contacts exist. SO, it is arguable that Brennans broader test would agree that targeting something towards a forum state is enough for making the contacts (which is the Oconnnor 4s test).. This gives us a majority view. Well, sorta. ( However, while this is a sufficient condition, it is not a necessary one) IT APPEARS THAT WWVW STILL RULES THE ROOST. And now onto Internet Issues of PJX: Zippo Manufacturing co v. Zippo Dot Com (1997-W.D. PA): Physical presence not required (BK). Sliding scale: more commercial the activity, more likely that JX can be exercised. (1) if commercial site transmits files to paying customers in forum state, then PJX can be. (Compuserve v., patterson). (2) If interactive website where info is exchanged b/w user and host THEN as level of interactivity and commercial nature increase so does likelihood of PJX, (Maritz v. Cybergold) (3) Passive site that does little more than make information available does not meet requirement for PJX (Bensusan Restaurant). STILL APPLIES THE MINIMUM CONTACS TEST AND THE FAIRNESS TEST AFTER DETERMINING THAT THIS IS A COMMERCIAL SITE. Lists Inset Systems as the outer limits of the exercise of PJX. Website that had an advertisement on it and then an 800 number. Court reasoned that company was doing business in state because unlike TV or Radio ads, the advertisement is available continuously to any internet user. Court acknowledges the gap b/w the this and Bensusan based on different laws in different JXs about what constitutes doing business. RANDOM NOTE: case is really old. Seems to ignore much of what is true about websites today. OPEN ISSUE: if an online business such as Amazon has merely not shipped to a state on fortuitous grounds, then what? If it hasnt blocked orders to that state, then maybe it is doing business in that state or maybe not (no customers=no contact).

May not matter as claim would not rise out of the contact, and so P would need general JX to sue.

o General jx & Presence:

GENERAL JX Bird v. Parsons (2002 6th circuit): To get general JX, systematic and continuous contacts need to be shown. Examples of what counts (when added together): office in state, carrying on correspondence and meetings related to business, payroll from in-state accounts, dealings with corporate policies outside of state, engaging bank to act as transfer agent (basically, running the whole business). What doesnt count: some visits, purchases at regular intervals (from or to). Notes Cybersell v. Cybersell.(1997-9th cir):passive website that has ad on it does not warrant specific JX, so definitely no general JX. Minority Rule: MIT v. Micron (2007-D.Mass): out of state corporation held subject to general JX because it was registered to do business in MA, had customers in MA, and those customers were serviced by salesmen in neighboring NH. Others such as this Gavigan v. Walt Disney World Co (1986 E.D. PA):Disney world subject to general JX in PA: targeted marketing, ticket sales, products, reps promoting travel to DW. PRESENCE General JX appropriate whenever a Ds contacts with state are so extensive that they are considered to be present there. This includes citizens, or if served there. Burnham v. Superior Court (1990): Personal JX established when served in forum state. BEEF in opinion analysis though. Scalia +2: hey, its traditional & historical, too bad. White: SOOOOO obvious. DUH. Brennan +3: still has to comport with due processand it does. Stevens: look assholes, you are all right, this is cake. Courts since this have used it to justify GPJX over persons (not corporations) unless D was fraudelenty lured in by P for service, or was in state for court proceedings. NOTE: D served out of state always has option to either appear and contest JX (but then has to submit to judgment) or to take the default judgment and then collaterally attack its enforcement in the home state (but, if you lose JX case there, you are bound by default judgment against you). Carnival Cruise Lines v. Shute (1991): Forum selection clause on back of ticket is to be enforced, even if it makes it hard for P to sue. However, if company had done that with intent to make it hard to sue, then perhaps not enforceable (fundamental fairness required to make it enforceable). Federal long arm JX:

Few federal statutes that give nationwide PJX: ERISA (pensions, benefits), antitrust laws, some securities fraud. In these cases, the courts are unclear as to what suffices as sufficient contacts. Some courts: minimum contacts with US, others: Minimum contacts with a state.

 Venue:
o o Purpose is to protect D from Ps selection of unfair location for trial. ORIGINAL VENUE: 1391 deals with venue: 1391 (a): In diversity cases, a case can only be brought in a federal district that (1) That any D lives in (if all Ds reside in same state), OR (2) where a substantial part of the events, or omissions giving rise to claim occurred/where property giving rise to claim is situated OR (3) If 1 or 2 dont work, then any district where any D is subject to PJX at the time the action is commenced. 1391 (b): In fed question cases (or fed Q + diversity tag along), case can nonly be brought in judicial districts that (1) That any D lives in (if all Ds reside in same state) OR (2) (2) where a substantial part of the events, or omissions giving rise to claim occurred/where property giving rise to claim is situated OR (3) If 1 or 3 dont work, in any district where any D may be found. 1391 (c): Corporations: If subject to PJX in a district, then considered to reside there. In states with more than one district, each district is like a state, corp resides in those that it would be subject to PJX in via contacts. If no such district, corp resides in district with most significant contacts. 1391 (d): Aliens: any district 1391 (e): US official in official role: (see supplement P. 301) Change of Venue: 1404 (a) for convenience of parties and witnesses, and in interest of justice, a district court can transfer any civil action to any other district or division in which it could have been brought. Could have been brought? Hoffman v. Blaski (1960): D cannot try to transfer to venue where there is no PJX over D and then consent to PJX. (nice try D). VanDusen v. Barrack (1964): new venue must apply the state law that would have been applied in old venue. Interest of Justice? Burden on D to show need to move venue Ps right to choose forum v. Ds convenience and justice arg. Things to consider (Lyons): (1) convenience of witnesses (2) location of documents and relative ease of access to sources of proof. (3) convenience to parties, (4) locus of the operative facts, (5) availability of process to compel attendance of witnesses, (6) relative means of the parties, (7) forums familiarity with governing law, (8), weight of Ps choice of forum, (9) trial efficiently and the interest of justice based on totality of circumstances.

1404 (b) if everyone agrees, then transfer to any other division in district is ok. (note, in rem clause in supplement) 1404 (c) district court may order any civil action to be tried at any place within division in which it is pending.

Cure of Waiver of Defects: 1406 (a): court can dismiss or transfer(if in the interest of justice) to district or division where venu is proper. 1406(b): If party doesnt object, too bad, they are stuck. NOTE: SC allows suit in court that lack venue and PJX to transfer for court that has both. In that case, no van dusen rule, so transferee forum law governs. NOTE: 1407 all about multidistrict litigation (p.303).

 Subject matter JX
o Opening thoughts: SMJX cannot be waived by a party State courts are courts of general jurisdiction; Federal courts are courts of limited jurisdiction. Unless state court has cause of action denied to it, it has SMJX over everything. Federal court only has SMJX over stuff that it has been given SMJX over through statute or consititution. Federal JX is assumed to be concurrent unless there is evidence that congress has intentionally conferred exclusive JX on the federal courts. Starts with Article 3 of constitution: Judicial power of the US shall extend to all cases arising under this constitution, the laws of the US, and treaties made under their authority. To get into court on federal question jurisdiction you need: 1. To have a claim that is not so attenuated and unsubstantial as to be absolutely devoid of merit. Newbury water co. v. Newburyport (1904). 2. To have a well pleaded complaint, which means that the federal question is necessary to the complaint. To test this, go claim to claim, and see if the counts would pass 12(b)(6) muster without the federal question in it. If not, then the federal question if necessary to the count. If so, then it is not necessary, and the count should be dismissed for lack of subject matter jx. Getting into court on federal questions embedded in state law cases is a little messier. Old precedents seem to be at odds with each other: Smith v. Kansas City Title & Trust (1921): if the right to relief depends on the construction or application of federal law, then federal JX is appropriate. Moore v. Chesapeake & Ohio Railway(1934): a suit that brings within the purview of the [state] statute a breach of duty imposed by the federal statute does not arise under the laws of the United States. New Precedent SUBJECT TO GRABLE: Merrell Dow Pharmaceuticals v. Thompson (1986): When there is no federal private right of action in a statute, there is no

o Fed question aka 1331 JX:

federal jx, even if raised as an element of a state law claim, unless a sufficient federal interest is at stake. To figure out whether or not there is a federal private right of action look to the statute itself, the legislative history, intent, etc. If congress didnt intend private individuals to be able to sue, then they shouldnt be able to sue in federal court. HOWEVER: if there was a sufficient federal question in the claim then the federal court could exercise JX (footnote 15, page 537). Newer Precedent, and THE LAW: Grable & SonsMetal Products, Inc. v. Darue Engineering & Manufacturing (2005): Test for Federal JX of fed Q imbedded in state law claim: (1) Necessarily raises federal issue (2) Federal issue is substantial and in dispute (3) Granting fed question does not upset the balance of federal and state judicial responsibilities. Looks to federal cause of actions as evidence of balance of judicial responsibilities, but does not consider it to be a necessarily determinative factor. In this case, allows federal JX over bankruptcy issue embedded in state law claim as (1) its necessary to the complaint (motley). (2) federal issue is all that is in dispute and it will decide the case. (3) Bankruptcy law is solely federal, and so it does not upset the existing balance (no shifting of responsibilities). NOTE: the Grable test has been messy when applied. Decisions all over the map. Seems like the courts favor pure questions of law (see Empire Health Choice (2006) Page 547). o Also, the courts sometimes deny JX to claims that do have federal private rights of action in the statute if the statute says that the claim should be decided by local law (Shoshone mining). So, where are we at on federal subject matter jx dealing with embedded actions? Possibilities:

1) No private c of a, then no jx (MD majority) Last word=congress 2) Always (brennan MD dissent, smith) Last word=State courts/legislature 3) Case by case assessment (Grable) Last word=Federal courts 4) Never (Thomas dissent in Grable, Holmes dissent from earlier) Last word=Federal Courts (but decided once and for all). So, who is right? The MD majority (but its not precedential). Its confusing as hell, but since Congress gave the power for JX to the courts, they should retain that power and can signal through the statutes and the way they construct them what they want JX to be. Also, Congress is representative of the people and accountable, unlike the courts. So, it looks like the MD case is still controlling despite the grable decision.

o Diversity JX:
Starts with article III again: confers jurisdiction on suits between citizens of different states. 28 USC 1332 defines it as needing parties of (1) diverse citizenship, and (2) an amount in controversy that exceeds $75K. Diversity under 1332(a)(1) must be complete: all the Ps must be diverse from all the Ds. Strawbridge v. Curtis (1806). (minimal diversity exceptions for interpleaders under 1335, single accidents with over 75 deaths under 1369, and class action suits under 1332(d)). Steps in Analysis: Determine citizenships Figure out amount in controversy. Citizenships: People: All from Sheehan v. Gustafson Burden is on party seeking federal JX to demonstrate by preponderance of evidence that parties are citizens of different states. (decision to be reviewed under abuse of discretion standard). Domicile and citizenship are equivalent terms.

Courts look to facts on the day that the suit is filed. CITIZENSHIP TEST: (1) Presence, (2) Intent to remain indefinitely. o Evidence often reviewed includes: Bank accounts, property ownership, vehicle registration, business locations, medical people you visit, tax returns, passport, drivers license, last will & testament, place of personal belongings, social organizations, etc. (pretty much anything that is admissible). People can only be a citizen of one state at a time (Williamson v. Osenton). Corporations: Corporations can be citizens of multiple states. Criteria is as follows (according to 1332(c)(1): State(s) it is incorporated in (AND) State the corporations has its principle place of business in (only one principle place allowed). Two tests for thispick what fits best (Peterson v. Cooley): 1. Nerve Center test: Home office or where the corporations officers direct, control and coordinate its activities, determinative. (OR) 2. Place of operations test: The place where the bulk of corporate activity takes place. Unincorporated Associations: Trade unions, partnerships, charities, etc.: Based on citizenship of all the members. So, if any member is a citizen of the state, then the association is a citizen of that state. (Carden v. Arkoma Associations (1990)) American LLSs are considered to be unincorporated Associations (Wise v. Wachovia, 7th cir 2006), but foreign LLCs are sometimes considered corporations if they have legal attributes similar to a corporation. (Lear corp v. Johnson electric Holding Ltd., 7th cir, 2003). Amount of cash money in controversy: If one P v. one D, look at bottom line of complaint.

Complaints against multiple Ds cannot be aggregated unless Ds are jointly liable. Claims cannot be aggregated amongst multiple Plaintiffs to get to the jurisdictional amount (75k). Del Vecchio v. Conseco (2000 7th cir)ruling based in Snyder v. Harris (US Sup. Ct. 1969). Exceptions: One Res (one indivisible harmsuch as an award to an estate that will then be distributed amongst the survivors). Punitive Damages can be used in the potential damages calculation if (1) the state law allows for punitive damages to be recovered (2) unless it is clear beyond a legal certainty that the P would under no circumstances be entitled to recover the jurisdictional amount. NOTE: dont forget State farm v Campbell: single digit multipliers of compensatory damages to punitive damages are most likely to satisfy due process. Presumption against 145 to 1 stuff. Large multipliers may be appropriate where Ps harm was small monetarily, or in the case of dignitary harms. D must have been on notice that such a large award could be granted. Courts are split on how to value injunctions. Do we value them based on what P will gain or based on what D will lose? Get ready to argue. (looks like Del Vecchio court would go for what P would get as they rejected what D gained through fraud in present case).

o Supplemental subject matter JX:

Historical view vs. Present view: old decisions vs. 1367. Old school decisions: United Mine Workers v. Gibbs (1966): Pendant claim JX appropriate when judicial economy, convenience, and fairness to litigants are present and the case comes out of the same nucleus of operative fact. (all part of the same constitutional case.) Aldinger v. Howard (1976): for Pendant Party JX to exist, Article III must permit it, and that congress has not negated a cause of action for the claim against a certain type of party. Kroger (1978): If diversity case, then no rule 14 claim against impleaded 3rd party by P if it would blow up diversity. To get the claim through it must (a) have original jx (which in practical terms means it wont mess up diversity) and (b) come out of the same transaction or occurrence as the Ps suit against the D.

Finley v. US (1989): State law claims against additional Ds do not have pendant party/claim jx as congress never gave it to the courts. Current Law: 28 USC 1367 (check page 299 in supplement): With exceptions from subsection (b) and (c) or other statutorily prescribed stuff, if a district court has original JX then it also has supplementary JX over all other claims that are part of the same case or controversy under article III of the US constitution. Supplemental JX extends to claims that involve the joinder or intervention of additional parties. HOWEVER: In actions founded solely on 1332 (diversity) the district courts do not have supplemental JX over claims by Plaintiffs against persons made parties under rules 14 (impleader) 19 (required joinder of a party) 20 (Permissive joinder) 24 (intervention), or persons proposed to be joined as Ps under rule 19, or seeking to intervene as palintffs under rule 24 IF THOSE CLAIMS WOULD DESTROY DIVERSITY/AMOUNT OF CONTROVERSY UNDER 1332. OTHER WAYS OUT OF SUPP JX: Court may deny supp jx for any of the following reasons: If the supplementary claim raises a novel or complex state law issue. The claim substantially predominates over the claim or claims that the district court does have original JX over. District court dismisses all claims that it does have original JX over In exceptional circumstances, there are other compelling reasons for declining JX o ARGUABLE AS TO WHAT IS COMPELLING Under Exxon Mobil Corp v. Allapattah Services (2005): if one plaintiff meets the JX amount and the diversity requirement, then 1367 allows a second P to file suit for an amount lower than the jurisdictional amount against the same D.

EXAMPLES: T1 + T2 v. K: o Before 1367, both have to be over 75K o After 1367, only one has to be over 75K (Allapattah) T1 v. K1 ($80k) + K2 ($40k): o One K is over 75k, one is under. Over the 75k Kentuckian, yes, over the $40K, No (joined by rule 20--1367 exception) So, no supplemental JX. o Can dismiss the claim against K2, or dismiss claim altogether.

T1 v. K1 ($80K) + K2 ($80K) o Yup, has original JX over both suits if they were brought individually, so all good. T1(80k Each) + T2(40k each) v. K1 + K2. o Nope. While T1 and T2 could each go after K1 and K2 individually, joining these defies the rule 20 provision of 1367. So, either two suits have to be filed or T2 has to be dropped and file in state court. T1(80K) + T2 (40k) v. K1 o By rul 20 party, against a D, not by a P against a rule 20 party. o 1367 only prohibits claims against people made parties under rule 20 So all good. K1 + T1 v T2. o No matter the dollars, no supp JX because it blows up diversity JX of original claim (no original jx, so no Supp jx). Has to dismiss the entire thing since there is no JX at all. Cant just dismiss the non-diverse plaintiff because the diverse plaintiff could never get diversity JX to begin with. So, guess what, Allapattah drives the lower courts nuts because congress screwed up the drafting. OOPS, turns out some law professors wrote it.

How Sherry wants us to analyze it: o Is there original JX? 1367(a): Is it the same case or controversy? 1367(b): exceptions? o 1367(c): More exceptions? Court may do it. Doesnt have to.

 Removal Procedure:
Federal courts jurisdiction is presumptively concurrent: so, absent congressional intent to give exclusive federal JX, federal claims can be brought in state court. If a D wants to remove to federal court it is under 1441. D can remove all claims over which there is original JX unless the D has been sued on a diversity claim in their own state court. o If something under 1331 is joined with a non-removable claim, then District court has option to take non-removable claims or to remand them to state court. PLAINTIFF CAN NOT REMOVE PERIOD, EVEN IF IT IS OVER A FED QUESTION COUNTERCLAIM. If a defendant wants to remove a case to federal court, then the court has to analyze if the P could have brought it in federal court. All the rules apply. If it could have been brought (with all claims) then it can be removed. o Only D can remove o Circuits are split about impleaded 3rd party Ds trying to remove. Diversity D cant remove case that is filed in own state court. On fed Q you can. D has to remove within 30 days of complaint IF there is JX If fed JX attached later, then 30 day clock starts at that point (P adds fed Q later, etc. D finds out that they are diverse, etc.) Cant remove diversity case after a year, no matter what. o

 Choice of Law Doctrine

o Intro 1789: Rules of Decision act: Except where the constitution, treaties or federal statutes require or provide otherwise, state law applies in civil actions in US courts. Old Rule: Under Swift v. Tyson (1842) state statutory law applied in federal court, but state common law did not. New Rule: Erie Railroad Co. v. Tompkins (1938): Substantive state statutory law and common law that has been stated by a states Supreme Court is now applied in federal court. (procedure still controlled by FRCP). Old rule created unequal protection in diversity claims Forum shopping Inequities Congress has no power to make/declare substantive state statutory law or common law. Guaranty Trust of New York v. York (1945): Further refines Erie, Introduces the outcome determinative test as a way of deciding whether or not state law applies. (note: statute of limitations case) Eschews substance/procedure distinction, says that Erie was about the proper distribution of judicial power between state and federal courts. Ragan v. Merchant Transfer & Warehouse (1949): upholds York, also states that if a cause of action created by local law is to be measured by the local laws about it (another statute of limitations case). Rutledges dissent keeps hammering away at the false procedure/substance distinction. Byrd v. Blue Ridge Rural Electric Corp (1958): If there is a countervailing federal interest against the state rule, then the state rule should yield to the federal one. Present case: distribution of responsibilities b/w judge and jury (something the constitution speaks to). Court does not think that either rule will be outcome determinative. (leaves some room for argument about how relevant this decision is).

The court has rarely cited Byrd, and has never used the countervailing test to apply a federal rule that that would create a different outcome than the state rule as determined under the Erie-York formulation. Sibbach v.Wilson & Co. (1941): If a rule really regulates procedure (is arguably procedural) then it is within the scope of the Rules Enabling Act. Hanna v. Plumer (1965): If the conflict comes from an FRCP or federal statute, and using the federal rule would encourage forum shopping (and hence, inequities), then the state rule should apply. Walker v. Armco steel Corp (1980): The analysis in Hanna only applies if the FRCP in question, when given a plain meaning, is broad enough to control the issue before the court. Another statute of limitations case. State statute of limitations applies. NOTE: the court explicitly says that they have not decided how state statute of limitations laws effect suits under federal Q law. They do say that the court hinted in Ragan that the federal statute of limitations law would apply. (this must be for suits in state court that have been removed).

o Assuming that state law should be applied, then what?

Fed court should apply the law that would be applied by the state in which the district court is located. (Klaxon co v. Stentor Electric Manufacturing (1941)). NOTE: each state has its own choice of law doctrine. Dont make the mistake of thinking that it is the law of that state that applies. Rather, it is the law that the state would choose to apply (could be another states law). Fed court should look to statute or highest court decision to figure out what state law is. If that is fruitless, Weber v. Sobba holds that When state law is unsettled or unclear on a particular question, it is our duty to apply the rule we believe the state supreme court would follow. Courts can look at state lower court decisions as well as relevant state precedents, analogous decisions, dicta, scholarly works, and other reliable data tending to show how the highest court in the state would decide the issue. (Nationwide Mutual InsuranceCo. v. Buffetta3d cir. 2000) NOTE: persuasive authority to all other circuits

On appeal, the federal appellate courts should review the determination of state law de novo. They are not to give deference to the lower courts decision as to what local law is. (Salve Regina College v. Russell (1991)). If the case is transferred to another venue, the law that would have been applied in the state in which the lawsuit was filed will still be applied in the new venue. (Van Dusen v. Barrack). Other option: certification request. Only Missouri and North Carolina do not have certification statutes. MESSY: takes forever. Federal decisions about state law are not precedential. Also, if federal court comes to a reasonable conclusion about state law, then when ruling is on appeal as state appellate court comes to the opposite conclusion, then the federal appeals court has to rule in accordance with the state appellate court unless they have reason to believe that the state supreme court would rule oppositely. (McMahan v. Toto, 2003, 11th circuit)

Good Q to ask: Is the interpretation of a federal rule a piece of federal common law? Is interpretation a judicial interpreataion (ex scintilla is nowhere in the rules).

NOTES AND SUCH Civil Procedure: M: 1-3, 12-28 (casebook) 25-26 (supplement) F:

Writs/common law courts: contracts, torts, property. Sometimes a jury. Dominant old English system. Handled damages mostly. Equity: no jury, run y chancellor. Smaller system, not part of the common law courts. (handled frauds, and whatever else couldnt be covered in common law). Handled injunctions mostly Big problem: common law was all procedure, equity was all substance. Never the twain shall meet in 17th century England. Dual system plagued American courts to some degree throughout the 1800s. Equity rules of 1912 sought to resolve some of this within the federal courts. 1934: rules enabling act (28 USC, sec. 2071-72) lets the supreme court start making the federal rules of evidence and procedure (as to be independent from the states in which the courts are located). These new rules mixed law and equity together into one system. 8/25/08 So, this course is all about how to do a lawsuit. Will not focus on the legal basis for the cases (ie, torts, contracts, etc.). Rarely will the substance effect the procedure, but it is worth knowing what the cases are all about. The procedures are usually the same regardless of the substance. NOTE: criminalprocedure is different than civil procedure. So, get ready to learn a couple of different systems. Procedure is important because: Because you could be a litigator If you are doing transactions you need to know how to structure your deal to make it as advantageous to your client as possible. After all, it could go wrong. o What docs could be discoverable o Who is exposed? Who can be sued? o You need to be able to evaluate procedure in order to be able to improve the legal system. Well be handling federal procedure. State procedures differ, but are often similar. You have to apply state interpretations to state rules, federal interpretations to federal rules, etc. Of course, once you have an understanding of the federal system, all of the state systems will make a lot more sense. Sources of Civ pro (top to bottom) US Constitution: limits the jurisdiction of federal and state courts. Puts a limit on personal jurisdiction and subject matter jurisdiction o Federal statutes: subject matter jurisdiction. Rules enabling act as well.

Federal Rules of Civil Procedure: come from the US supreme court/advisory committee in 1938. Amended since then. Its the civ pro Bible. Majorly restyled in 2007. (NOTE: earlier cases may refer to subsections and language that are not in the 2007 version. Rules stayed the same way (basically). These are always subject to a congressional veto. Congress can and has passed some of the rules. The FRC are generally treated as statutes. Judicial precedent/decisions: Interpretations of the above stuff. Most of the cases that we will be reading come from lower courts.

Litigation is your LAST option (keep that in mind). You usually have options prior to entering into a civil action. Claim/cause of action/legal basis: Need a law that has been broken (statute) in order to act. Or a common law area (breach of K, tort, etc.). This is the substance of the suit, listed in counts. o You do have to make choices about which law you will bring suit under. You can also get a Joinder to bring all the counts into one suit (this takes some doing, learn about it later). Remedy: damages, injunction, restitution, etc. This is what you want out of a suit. o Any claim can lead to any remedy unless there is a statute stating otherwise. However, not all rights have remedies. Jurisdiction: o Which system shall you sue in? State or Federal? (subject matter jurisdiction (Jx)). State courts (gen jx) always has jurisdiction unless the congeress has taken it away from them in a statute. Feds only has jx if there is constitutional or federal statutes give it to the court. Federal Question jx: Diversity jx: Parties from different states (citizenhow do you define that?) AND more than 75K at stake in the suit. o Which location within the fed or state system? (personal jurisdiction). Venue is an issue that arrives only after Sub jx and Per jx has been established. Venue has to do with physical location (Knoxville v. Nashville). So lets say that you are going to sue in federal court. You have Sub jx and Pers Jx and a venue. o SO, YOU FILE A COMPLAINT with the court (rule 3). RULE 8 deals with what the complaint has to say: Service of process follows (notice) Process servers do this. SEE RULE 4. o THEN, the defendant answers the complaint or can move to dismiss. Somewhere in here there can be an amendment to the pleadings. o There can be fun permutations of all of this (the reply, etc.) often these things are ordered. AFTER all this, there is discovery. If a case gets settled, it is usually during this time period. What you ask for is usually a strategic decision.

SEE SYLLABUS for the sequence of what usually follows (class is kind of taught in sequence of what actually happens). Friday: read 2a.

8/29/08 Rule 8 (a): 8(a)(1): Show JX 8(a)(2): Enter Conley: o Supreme court case o Facts: Black RR workers get fired, Unions does not protect them. o Procedural Posture: Ps sued for relief including declaratory judgment, injunction, and damages o Defendants move to dismiss o No subject matter jurisdiction Fed dist court granted this motion, appeals affirmed, Supreme court reversed/remanded. o Needed to join the RR o Failed to state claim. o Issue/Questions: o Did they have jx? Held: yes o Need to join the RR? Held: No o Was there a failure to state a claim? Held: No failuredid state claim. o Some procedural stuff: o Defendants: claims that there are not enough facts in the complaint to show liability (hence P would not be entitled to relief). (substantive issue) o D: claims that there is not enough information to give fair notice. (formative/formally issue). These were filed under FRCP 12(b)(6)that is the rule for motions about dismissal due to rule 8(a)(2). o Standard: Substantive and formal sufficiency tests (p36 in the casebook). Sweierkiewicz:

o o

Court assumes that he plaintiffs allegations are true when considering motions to dismiss. (see footnote 1 in Sweierkiewicz). Facts: Sweierkiewicz was 49, Hungarian, demoted then fired. A younger, non-Hungarian less experienced replacement was hired to energize the department Sweierkiewicz formerly in charge of. PP: Plaintiff sued on age and national origin discrimination statutes. Defendant moves to dismiss under rule 12B6 for failure to state a claim. Dist dismiss, appeals affirmed, SCourt reversed, and remand.

o o 8(a)(3): Relief sought The forms showed in the federal rules of civ pro are sufficient (rule 84). The purpose of notice pleading is to give the defendant fair notice, therefore technicalities dont necessarily matter so long as the defendant is given fair notice. Basically, there is The sample pleading on page 43 of the casebook is sufficient for the federal courts. o Shows diversity jurisdiction (citizens of different states, amount in controversy over 75K). Can also get there for federal question jurisdictionbut there is none in this case. o Not specific about the type of damages they want. o Specific $ number is included, however, is not always necessary (except in a few state courts that have an ad damnum clause that requires a number).

9/1/08 Back to swierkiewicz: If swierkiewicz can prove what he alleges in his complaint THEN he will withstand the motion to dismiss, and THEN he will win his suit. o Has given fair notice (formal test) o He has stated a claim under which he is entitled to relief (substantive) Taken from Conley: a court may dismiss a complaint only if it is clear that the no relief could be granted under any set of facts that could be proved consistent with the allegation. o No matter what evidence the defendant brings in, the court may not dismiss the case HOWEVER, they may move for summary judgement. o NEED: basic facts, fired, fired because of age & nationality. So, where do we draw the line with regards to what can be inferred and what needs to be stated in a complaint?

Probably depends on the nature of the inference. Specifically, what the inference will do with regards to notice, and the ability for the defendant to come back with a motion for summary judgment if the inferred facts are wrong. Different courts balance the tension between the not a game of skill and eliminating expensive cases that are non-meritorious from going further. Most courts (including US supreme court) lean towards the not a game of skill camp. However, it tends to go both ways, so always tell your story persuasively but not tediously.

What kind of sufficiency was at issue in swierkiewicz? How do the allegations in Twombley compare to swierkiewicz and to form 11? What happens if we apply Twombley standard to swierkiewicz and to form 11? 9/2/2008: On the overruling of Conley: the reality is that the reason the court in swierkiewicz rules that the complaint was valid was that there were actual facts alleged. Hence, the language about conceivable facts does not really applyand hence what the Twombly case is all about. So, swierkiewicz must be both formally and substantively sufficient or else the court would not have reversed the lower courts ruling. If the complaint had not been sufficient in both areas they would have noted so and rejected the appeal or affirmed the lower court. Furthermore, they quote the language of the substantive test in the decision. NOTE: if both arent there, then it is not sufficient. Hence why they focus mostly on formal sufficiency, and leave much of the substantive sufficiency up for the last few paragraphs. Twombly: Legal claim: conspiracy to monopolize/non-compete via parallel conduct. Violation of Sherman anti trust act. Allegation: agreement/contract between the companies (para 51 of complaint) Evidence: Parallel conduct PROBLEM: parallel conduct is consistent with both an agreement OR independent behavior. Swierkiewicz: Legal Claim: discrimination Allegation: Fired because of natl origin/age (para 42 and 44). Factual evidence: Was demoted/fired, doing stellar work, replaced by non-hungarian who was younger. PROBLEM: firing is consistent with discrimination OR another basis. Form 11:

Legal Claim: Negligence Allegation: Negligent driving Evidence: Car hit plaintiff PROBLEM: consistent with Negligence OR reasonable care/plaintiffs negligence/whatever. Possible explanations throwing out the Twombly case: Expense: More plausible Need more specificity PROBLEMS WITH ALL OF THESE: Its the legislatures job to address the changes needed to heighten the pleading standard. 9/3/08 Twombly: Plausibility test When a motion is filed to dismiss the court can either grant it or deny it, resulting in either dismissing the case or allowing it to continue. They can also postpone. On the topic of what happens when a person inflates their damages to get diversity Jx: If the attorney does this, they have violated RULE 11improper pleading. Plaintiff can amend the pleading if needed to get over the 75k benchmark (or for other reasons if the damages have reasonably grown) RULE 15. Limits on 12b6-7 are the result of the conference between judge and counsels together. Trial specific. RULE on INFERENCES: the court must draw all reasonable inferences in favor of the plaintiff. If you want to contest facts you can either go motion for Summary Judgement or 12(b)(6) which will convert to Summary Judgement. NOTE: be sure to file all of this at once lest you waive defenses 2 through 5.

9/8/08 Other responses besides motions to dismiss: The Answer

Options with regards to answering the complaint: Admit, Deny, disclaimer: insufficient knowledge to do either (8(b)(5)). o However, you can add more to this, such as the aver thing which allows you to tell your story in the response. Dont mess up this part, or else the judge can treat it as an admission of the allegation. o The affirmative defense must come with an admission. You can deny by using the term aver(s) o Defendant admits to PP4 but aver driving carefully. o OR o D admits PP4 except that D denies driving negligently (or any other wrongful act). Swierky handout: See notes on handout.

If a case can be disposed of based solely on the pleadings and a matter of law, then an affirmative defense can be successfully used as part of a 12b6 motion QUIZ: due Sunday at 5:00 pm. Affirmative Defenses: Yup, it happened, BUT Im still not liable. Assuming there is no dispute of the facts, then the defense becomes a question of law. Statute of Limitation defense can be raised in an answer or in a 12(b)(6) motion. Any purely legal defense can be used in a 12(b)(6) motion (ex: preclusion). Fraud as a defense raises a factual issue, and therefore must be raised in the answer. 9/9/08 Amending the Pleadings: NOTE: the standard for diversity jurisdiction moved up from 50k to 75k in 1996. Sherrys example of the day: 1) 2) 3) 4) Plaintiff files suit, claims Diversity jurisdiction, greater than 50K Defendant files 12(b)(1) motion (no subject matter jurisdiction) on the 20th day. Plaintiff amends complaint from 50k to more than 75k (assuming it is the real value of the case). Plaintiff does not need permission to amend so long as the answer has not been served.

Alternate hypothetical:

1) 2) 3) 4)

Plaintiff files suit, claims Diversity jurisdiction, greater than 50K Defendant answers the complaint and raises D(jx) in the answer 12(b)(1) Plaintiff then falls under 15(a)(2). Has to ask defendant or court Court should freely give leave to amends when justice so requires.

On merits not technicalities vs. not prejudicing/unfairness to the defendant. Reasons to deny (unfairness/prejudice): (from Dubicz, but quoted within it from elsewhere) Undue delay Undue prejudice Bad faith If an issue is tried by consent then the pleadings can be amended at the end of the trial. 15(b)(2). Notice is here There is no claimed prejudice (if there was there would be no consent). These are all cases/rules where adequate notice/no prejudice is balanced against some other factor. 8(a) & 12(b)(6) formal sufficiency 8(c) affirmative defense 15(a) Dubicz 15(b)(2) 15(c)(1)(B) Tran 9/10/08 QUIZ goes up to today at noon, and comes down Sunday at 5:00 10 questions Just the black letter law Not testing ability to make arguments or the ability to apply fact patterns to the black letter law. Bits from the quiz: Use Twombly standard for sufficiency of complaints. Onto Rule 11: Yup, its the one that can get you busted, but it is not the only one. There are other statutes and rules that you can be sanctioned under (dont forget the rules of professional conduct that your state bar imposeshence your professional responsibility course that the ABA requires). Rule 11 is limited to defects in the pleadings or the motions.

You can rely on your client when their statements are objectively reasonable (page 90, patsys, quoting the 2nd circuit), after having done a reasonable inquiry. If you have contradictory evidence, you would then do more inquiry, etc. As to the inquiry: the circumstances dictate the reasonableness (less inquiry if there is not time due to a statute of limitations). If you are continuing to advocate for it, you need to continue to believe it is true. If you find out that your client is lying, you need to stop advocating.

On towards Discovery: Depositions: oral questions, can be done to anyone o Adv: flexible: can change your questions, follow up, etc. Lots of info, limited us (30(c)(2)). Deponent has to answer the questions unless asserting a privilege, enforcing a court order, or if the deposition is heading towards abusive territory and the lawyer makes a motion to terminate the deposition. But objections can be made and will be ruled on later by the judge. Hence, not everything will make it into the court. o Dis: Very expensive: both counselors are there, stenographers, etc. Lots of advance prep time. Can go in a lot of different directions. Depositions are rarely usable in court (which some exceptions: a partys depositionor their agent, impeachment, unavailable witness (rule 32)). Interrogatories: written questions, can only go to a party o Adv: Cheap o Dis: Unfocused tool Not flexible: to follow up you would have to send another interrogatory, and there are limits to the number of questions you can ask--25 (sometimes this is changed in large casesstipulation or court). You get less information. Can object and not answer. The requestor has to go to court to get it reinstated. o Written depositions: Like interrogatories, can be sent to non-parties. So here is how it tends to go: BUT, under 26(d)(2)(a), you can do this in any order you want to. Each party gets to make their own choices. o 26(a)(1): Mandatory disclosures: Stuff you have to send out, whether the other party asks for it or not. Then you send out your interrogatories and document request:

Ask for all documents referred to and cited during answering the interrogatories. Then we are on towards oral depositions. More doc requests, non-party disclosures.

More rarely used stuff: o Admissions Underused: Narrow but useful Get a fact admitted that is obvious, but needed for your case. o Did you fire the plaintiff? o Authenticate a document o Foundation for witnesss credibility (yup, it really is the Vicepresident of the company). Despite all of these devices, the discovery is not an end in itself: what you are looking for here is a set of facts that is useful for your case. Either info that refutes the Ps case or established your case (if you are the P). Its best to keep in mind when writing qs for discovery that it needs to serve either to support you case. Interrogatories: some strategy o Simple objective questions. (name each person with knowledge about the claim, list the amounts of chemicals bought, and sold (as a way to figure out how much may have been spilled)). Stay away from anything that gets directly to the issue. Instead, get the facts that will allow you to construe the facts necessary for your case. Best ideas: names, dates, data, etc. Documents: some strategy o Too specific of a request: you wont get anything. o Too general: youll get the haystackgood luck with the needle. Proceed from specific to the general. EX: All documents that name these people or were sent from person A to person B. (plaintiff, and their boss, for example) Expand: any documents that name a particular department or position (HR department to P) Documents that refer to particular products, incidents, etc. (Ps firing) Docs that relates to particular conduct. (Ps claim, etc. Ds defense). Define the documents broadly: tape recordings, electronically stored information, etc. A word about electronic documents: o Pose special problems:

Objections available to the substance and the form. (34(b)(2)(D). Get your objection on that the form is not something that you wish to provide. (tempered by 34b2e) Object if it is not reasonably accessible. Puts the burden on the person asking for it. Object if it is privileged or confidential. A word about metadata: o MD is the stuff that is encoded in the document, but would not appear in print form. o It is the respondents responsibility to prevent the inadvertent distribution of privileged metadata o Requestors responsibilities vary from jurisdiction to jurisdiction. Check out the rule that deals with inadvertent jurisdiction. ABA: think you can go metadata mining. Other JX say that you cant mine, but can use it if you accidentally find it, etc. Basically, it runs the spectrum. Responding to discovery requests: o No harm to you: be helpful! May help you get your stuff faster. o You can object if you have a colorable claim o Interpret and answer narrowly: dont give them anything more than what they asked for. Honest, but not forthcoming. o Use lots of paper If they dont write their document requests carefully, bury them in paper. Thoughts on depositions: o Prepare like you would for a trial. Get ready for exam and cross exam (and prep like it) o Tell your witness: dont volunteer, dont speculate on an answer, dont interpret (ask the asker to clarify). o Rule 30(B)(6). Designation: allows you to ask a corporation/agency/organization to designate someone to answer your questions. That way you dont need to figure out for yourself who you need to talk to. o They may designate more than one person. o Rule 30(g): no shows: No show of a party: you get sanctions No show of witness: you pay costs if the subpoena wasnt issued. IF you did subpoena the witness then you dont owe other partys costs. However, issuing a subpoena may not be the best move as your witness may not like you if you get a marshal at their door giving them service. Some more discovery real world stuff: o Rule 26 is one of the most amended rules out there.

Discovery can be abusedover discover, bad faith fishing expeditions, under responding, etc. Problem here is that the burden is on the requestor to move the court to compel discovery. o Nothing happens if the abuser is not called on it, and calling somebody on it takes some doing. However, your reputation can suffer if you become a discovery abuser. Sherrys advice: tit for tat. Take it to their level, but dont go any further. Respond, dont escalate.

Assignment for Wednesday: 30 minutes max, groups ok, you are representing a client in a case in the US district court for middle TN. You have been sent a request for admissions. What do you need to do? Is there anything special that you need to know when you are answering requests for admissions? Special forms? Etc.FRCP 83 9/16/08 More discovery than you can handle. Two ways you can get into court on a discovery dispute: o Compel Discovery: 37(a) o Protective order: 26 (c)(1) No discovery A gag order In cameracourt looks at info and then rules on discovery. Often used for privilege Ways a responder hates on the interrogatories: o Object, then not answer. Requestor must confer and try to resolve with the responder, then Back to a 37(a) motion to compel discovery. o Then back to responder conferring to resolve. Then a 26(c) motion for protective order. Court looks to relevance, privilege & proportionality as the guiding factors for compelling discovery: o Relevance: 26(b)(1): relevant to the claims /defenses. You can ask for it to be expanded (relevant to the subject matter), standard for evaluating this motion for expanded discovery is good cause. Relevance: affects likelihood of the truth. o Proportional: 26(b)(2)(c): Unduly burdensome is the standard for determining proportionality. Basic cost/benefit analysis based on the resolution of the case. Court can order requestor to pay if financial burden is too high

Now, for ESI stuff, to determine whether or not it is discoverable, you start with 26(b)(2)(B), then you move over to 26(b)(2)(c) limits if the prior rule does not limit your discovery. To figure out the good cause provision of the rule for discovery, look to the advisory notes on 26 (b)(2)(C). There are seven factors listed there (also in Aubuchon case, see page 135). o All of the these factors affect all cases, but are given special weight in ESI cases. o General rule though is this: does the cost outweigh the benefits of having the information? Two level thing for ESI: Accessible? Then, good cause? o ESI is the one area where the burden can shift. IF it is found to be inaccessible, then the burden to prove that it is not unduly burdensome (or good cause to mitigate that) shifts to the requestor.

9/17/2008 Oh, the smell of civ pro in the morning. TN fun: 36.01: supplement no later than 30 days before trial. Refers to 33.01: state request, then answer. o This stuff is relevant because they are the local rules. The local rules fill in the gaps, be sure to look up the local rules before you litigate in a given court, because each court should have them. And now back to privilege: Work product doctrine, 26(b)(3), codified in Hickman (gives the reasons for the doctrine, and is broader in scope than the rules). o Hickman only deals with the Attorney, 26(b)(3) deals with anyone involved (party, agent, representatives). o 26(b)(3)(a): any document prepared in anticipation of litigation can be considered privileged Most litigated area of 26 (how do you tell that the document was for fear of suit or just a standards operating procedure). So, if you represent a company, tell them to mark their stuff in anticipation of legal actionor some other phrase like thatif it is something that could be in the gray area. o You can get around the privilege if what you are requesting is within the scope of discovery, and that that requesting party has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. 26(b)(3)(A)(i-ii). Hickman is the ruling that goes further than this by keeping deponents from having to describe a document that is otherwise privileged.

This ruling is made mostly on policy grounds as the rules (at the time) did not have a protection in it for attorney work products. The rules later added it in.

Back on the privilege thing (worksheet). o Typically, when a privilege is waived, it is not done intentionally. Its usually an inadvertent actionoften a document that is accidentally sent out. Traditionally, any slip ups = a waiving These days, reasonable precautions to avoid it= non waiver. However, the court usually has to decide if a waiver has occurred and whether or not that disclosure is waivered. o NEW RULE: Fed R. of Ev. 502Reasonable precautions does not =waiver.

9/22/2008 Expert opinions discoverability/waiving of privilege. 22.1.b.4unretained experts are not discoverable. BUT there is a good chance that the expert is considered a 3rd party. Beware of using hypotheticals with these guys, as they can be asked about the hypotheticals. Page 143: Asking an attorney what the witnesses told them has the same effect as asking him to write them down. BUT, not covered under 26(b)(3) limited to tangible things. So, you can ask an attorney what a witness told them, but you cant ask them to write it down. On to Regional Airport: Attorney client privilege: Complete privilege Agent of clients attorney For purpose of legal assistance Work Product Doctrine: Incomplete privilegedisco can be granted in accordance with 26(B)(3)(B). In anticipation of litigation. Done by agent or party Retained expert that will testify: Attorney client Privilege/work product doctrine waived when using an expert that testifies as per 26(a)(2) and 26(b)(4). Held as so in Regional Aitport. Some debate, however, there was a minority rule in existence at the time of the ruling. So, in summary:

Paid expert, not testifying, but advising: generally not discoverable (unless undue hardship and substantial need dictate it) as part of attorney client privilege and work product doctrine. Paid expert, testifying: discoverable, privilege is waived, reports are discoverable as well.

Current changes to rules being considered that would limit the discoverability of info given to testifying experts. On towards Case Management: Tower Ventures, inc. v. City of Westfield Council for Tower ventures didnt follow schedule order, case dismissed. Court of appeals sees this as messing with other litigants ability to get a speedy trial, and so it holds up the decision.

RMR v Muscogee School District Extra witness shows up late in the case, wasnt listed on the pretrial order: o Didnt get to testify, court of appeals upheld it. OF course, the point of managerial judging is to avoid all of this sort of stuff (judge got surprised here).

Of course, all of this has to do with the fact that we are still in an adversarial system, and that discovery is very liberal. So we have notice pleading, fixed by discovery, which is then fixed by case management.

9/23/08 Coming later in the week: Summary judgement: no disputed fact, just a matter of law. Judge issues verdict (more tomorrow, rule 56) Directed verdict: based on evidence, judge decides, done after the presentations of a case. Keep the jury out of it JNOV: Judge rules, putting aside verdict. Motion for new trial: Do over. Onwards to the judge and jury action: The point at which the law is applied to the facts is done by the jury. Whether or not something has to go to the jury is actually a fairly litigated area. The Supreme Court gets involved in this every three or four years.

So why do we use juries: o Representative of community o Allows law to bend a little o Community accountability and autonomy o Checks the power of judges Why judges? o Special knowledge o Uniformity o Check jury power

Markman v. Westview Instruments. Patent claim: describes the legal boundaries of the patent (what is does, not how). Infringement case tried by jury BUT o Not every piece/issue is required to be tried by a jury UNLESS it Is necessary to preserve substance essential to the jury trial. Court goes looking for an analogous case, surprise, nothing from back in the 1700s fits with regulatory cases of the modern era. Heck, what would the analogous case be? Then they look to relative ability/expertise of the jury or the judge: specifically document construction. This argument seems to get some traction. Then they look at the uniformity of decisions as a necessity of the court of appeals for the federal circuit. Again, traction. So, this really gets us nowhere because the lower courts now have to haggle this out until the Supreme Court gets back into it on this issue. This pretty much tells us about patent claims and that is it. DEVELOPMENT OUT OF CASE: Markman hearings: judges now hold pretrial hearings in which they decide what the scope of the claim is, and the case may or may not be decided without a jury.

9/24/08 Judgment as a matter of law Summary judgment Rule 50 Rule 56 Close of evidence Before trial Granted if there is no genuine issue of material fact (same). OR If no reasonable jury could find for the non-moving party Trial Evidence Discovery, affidavits, pleadings

Form of evidence does not need to be admissible (though the evidence does need to be) for the summary judgment motion. (Celotex) A party moving for SJ can get it without evidence if they can prove that the other side has no evidence through asking for it during discovery and waiting for them to not come up with it. Works especially well if you are the defendant as the burden of proof is on the plaintiff.

10/1/08 Quiz notes: avg=92 New quiz: due 5:00 Sunday! Rule 50: Judgment as a matter of law. Governed by same standard as summary judgment: no reasonable jury could find for the non-moving party. All evidence and inferences made in favor of the non-moving party. Scintilla rule no longer applies here. If a reasonable jury could find for non-moving party then motion is denied o 50a: before verdict o 50b: after verdict In practice, granted less often than the motion for summary judgment. Even on the same facts (probably has something to do with case management). Hmmm reason for renewal provision is a workaround for the 7th amendment. Its a way of keeping the judge from reexamining the jury verdict. Both 50a&b must be on the same grounds. o NO 50a, then NO 50b allowed. If you want a chance to appeal, you must motion 50a and then 50b or 59.

Reeves v. Sanderson Plumbing Products, inc. If you meet the prima facia case for discrimination THEN you get to the jury (no JNOV for the defendant). Things juries do: credibility, common sense, values, weighing/balancing stuff. Funny thought here: we give the jury the hard cases, but not the easy cases.

In discrimination suits in 1960s (title 7) no damages, jut backpay + reinstatement. This kept it away from the juries in the southbackpay and rehiring is a relief at equity (a judge decision) rather than damages (a jury choice). New trial action (59) Standard of review for a grant of a new trial is abuse of discretion For rule 50 it is De novo. In some circuits, you have to file a rule 50a motion before you can file a rule 59 motion

10/6/08 Unitherm: you cant appeal a 50a motion, but you can appeal a 50b or 59 motion (duh, the 50a is the first part of a renewable motion). Also, without filing a 50a you dont get to file a 50b or 59. AH! The jury verdict suffices as the final judgment that is needed for the appealhence why you can for a 50b or 59. If you win trial one, opponent gets a 59 motion granted and you lose trial two, then you can appeal both the result of the new trial and the 59 motion that got it there to begin with. Standards of review: Directed verdict, JNOV and sum judge: De novo New trial motion: Abuse of Discretion 50c: more often than not, if the judge goes with the JNOV, they will also conditionally give the new trial. More stuff: 18(a): get your join on! You can join as many claims as you have against the opposing party. (no transactional requirement). However, if transactionally related, they likely will be precluded. If not, then you can keep them separate. This is a preclusional rule, not necessarily the 18a standard (double check that, not sure). 13(a): this is the stuff for defendants counterclaims. If you have one that comes out of the same transaction or occurrence you must bring it. If it comes from other action, you may, but are not required(13b). Federal jx, with counterclaim that is not federal: supplemental jx happens if the counterclaim arises out of the same trans/occurrence. This is called supplemental jx and is compulsory. If the counterclaim is permissive (not the same trans/occurrence) then there is not supplemental jx.

Independent jx is enough for joinder even when it arises not form the same trans/occurance. Hard Q from rule 18: what counts as the same transaction/occurance? Look to the list in Painter v. Harvey (guideline, not litmus test). o Same evidence o Law qs of fact and law o Logical relationship So, if you have to amend a pleading to add a counterclaim, rule 15 kicks in (amendments) and governs the way it works. Rule 13f parallels rule 15a2. In a case where statute of limitations has run out, rules 13 and 15 are involved for the counterclaim. Tran gets involved here as well. Usually a defendant cant get a counterclaim of this sort amended into the complaint. If D doesnt file counterclaim, and does so as a new suit, he is precluded if it came out of the same occurrence/transaction. That, however, can be messy to determine. So, the transaction/occurance language is interpreted broadly in JX scenarios, and narrowly in situations where preclusion might keep people from litigating. For relation back under 15c., the language is interpreted somewhere in the middle of the other two. Lesson of that day: the same language means different things in Civ pro. Crossclaims: not compulsory, you can only bring those that are transactionally related. (13g) then take all the rules and layer them to see what happens to the crossclaime dparty.

10/7/08 Crazy chart action: So, if you have sued someone, and they counterclaim on a separate issue (permissive), then if you dont counterclaim yourself on the same issue you will be precluded (makes your stuff compulsory). Under 20a1: as long as you have one question of law or fact coming out of the same transaction/occurance (or series) you can join the plaintiffs. 20a2: even a small amount of fact or law question is enough to join (ex: did the tire blow out, was I injured?).

19a: is the party necessary? 19b: if they cant be joined, are they so necessary that the suit should not proceed without them? (indespensible?) Makah v. Verity Makahs want more fish, also wants the secretary of commerce to play by the rules. Defendants motion to dismiss under 12b7 for failure to join necessary parties (the absent tribes). So, rule 19a kicks inis the party necessary? 19a1a: Can complete relief be granted? OR 19a1b1: 3rd party interest impaired? OR 19a1b2: inconsistent obligations? Now, rule 19bis the party indispensible? 19baany party or 3rd party prejudiced? If yes, closer to dismissal 19b2can relief be shaped to lessen prejudice? If yes, closer to proceed 19b3adequate remedy in absence of 3rd party? If yes closer to proceed 1964alternative forum? If yes closer to dismissal

10/8/08 Joint tortfeasors are never necessary parties under rule 19 (what about joint nuisance?)

Q: if a 3pD does not file a claim against the P does the 3pD lose the right to bring that claim later (preclusion)? 10/13/08 Back to joinder for more fun! See the cheat sheet for all the notes action. P against D: 18 P joined together: 20 D joined together: 20 Circumstances for involuntary joinder: 19

Claims that D can or Must assert 13a 13b Claims D may or must assert against each other 13g D joining additional parties 14 Claims against additional parties 14 Asher v Unarco: Different definitions of co-parties exist. Any non adverse non-opposing party. Any parties same side of main suit. Under Asher (limited ruling): Co defendants can jointly implead a 3rd party, BUT, If that doesnt happen, then only one of them can claim against each 3rd party.

10/14/08 Joinder problem day Q still bugging me: What if the relief sought is an injunction that will only work with both Ds being ruled against at the same time? 14(a)(3): Under Kroger this rule needs independent jx AND has to be transactionally related (its the only rule that works this way).

10/15/08 PRECLUSION UNIT

Preclusion: Res Judicata (a thing adjudicated) 1. Claim preclusion (also called Res Judicata). Restatement 17(1), 17(2) 2. Issue Preclusion: 17(3), 27-28 a. Direct estoppelssame claim b. Collateral estoppelsdifferent claim

Onto hypo fun: 1) BatteryP loses 2) 1982 suit, excessive force. a. Can this second suit be filed? i. No, arises out of the same transaction (24(1)) Even if P wins, he cant bring the 1983 suit under 17(1) (doesnt matter if he won or lost, he is still precluded from bringing it again). Now, what if after the battery case (P loses), the P claims libel against the D? Precluded if it could have been consolidated. OK, so we look at trans/occurance differently b/w JX and preclusion (differs from relation back for amended pleadings). So, if an issue is decided in a prior suit BUT IT IS NOT NECESSARY TO THE PRIOR JUDGMENT then they can be relitigated in a future suit. Otherwise, no way. Lots of exceptions to this, see 28.

Traditional rule: For issue preclusion to take effect, the parties both must be bound by the original decision. Blonder-Tongue: Defensive non-mutual collateral estoppel. New defendant can use decision of prior case ruling against current plaintiff to move for SJ. Prevents one plaintiff from continually coming after one defendant after another over the same identical issue. You cannot use a prior judgment against a party that was not a party to the prior judgment because it violates their right to due process. Parklane: Offensive nonmutual collateral estoppel ok in certain situations. See page 339. o Easily joined? Not allowed o Unfair to Defendant? Not allowed Different incentives Different procedures Inconsistent verdicts

Random fact: Moving from one court to another, the second court has to follow the first courts preclusion rules. Has to do with JX issues.

Rule 19 action: check out the note on 346-347 about firefighters.

10/20/2008 need to pick up 2.0 points to get over median. 346=current median total. 373 is top 20%. I can get there need 5 over median each time to get up there. JURISDICTION TIME!!! Pennoyer v. Neff M sues N in Oregon state court In Personam, published notice in newspaper (property is unattached). M sues N, M buys, sells to P, N sues P to get his property back (federal case). Trial court finds for N due to insufficient public notice Upheld at Court of appeals Supreme court affirms, but on jx groundsand therefore voids the judgment all together. Specifically, no personal jx over him. Uses the 14th amendments due process clause as a way to get at the jx issue. o M could have sued quasi in rem to get at the property to pay the debt/the legal fees. Needs to attach the property (sheriff goes and tacks a notice of attachment onto the property itselfkinda weird). o If you attach the property, you need no other notice. o If you track the dude down in another state and serve him state court notice, but do not attach the property, then you still dont have jx. So, under Pennoyer to get JX over out of-staters you have to: o Serve them in your state if they come there o Attach property they own in your state o Argue for implied cosent (legal fiction out of hess v. pawloski, if you drive through, you can be sued). In rem: About property, property is attached. Its like suing the land to get it to declare who is its owner. Quasi in rem: attached, un related to property. International shoe v. Washington 3 part continuum: Single contact (land ownership) o General jx: Claim is unrelated to the contacts, need to attach land. Minimum contacts o Specific jx: the claim rises out of the contacts Systematic & continuous contacts o General jx: Claim is unrelated to the contacts Under International Shoe. So if youve got land, you can attach it and get jx.

 If youve got minimal contacts and the cause of action rises out of those contacts, then jx. o International Shoe is this situation If youve got systematic & continuous contacts, then youve got jx period. o NOTE: transmission, long time, regular part of business probably not enough to get you there. So, what if a product is shipped from TN to KY, sold there, and then taken to AL? o Kinda depends on if the product: Is designed to travel Regular avenue into KY Illegal purchasing Wholesalerretailerdistribute throughout Common resale items Part to a bigger product Basically, it all depends on whether or not there is a high likelihood of the product being moved about the country. See next set of cases.

10/21/08 Get to know minimum contacts (specific jx), systematic and continuous contact (general jx), the black letter that comes out of Pennoyer and International shoe and World Wide VW. However, there is no way that we can know whether or not there is enough for minimum contacts because it is standards based and therefore Long Arm Statutes dont get the states any Jx beyond what US SC gives it as a product of the Due Process clause (14th amendment).

Is one business transaction enough to get minimum contacts in a state? Definitely arguable! o McGee v. intl life=Yes. o Fairness grounds=who know? (ebay seller being different than amazon). o Hanson v. Denckla=NO. Hypo: Penn citizen enters into trust in Delaware. Trustee is in Delaware. Penn citizen stay in PA till death. o Who has jx over trustee? (more than one state can have jx). Del (trustee is citizen) PA (volitional act, intent to do business, avail self of laws, etc. Donner). Hypo: what if Donner doesnt die, but thinks trustee is defrauding her?

o o

Trustee didnt withdraw, so it seems like she can get her sue on. (hes doing business theremcgee). BUT, under Donner no way. These cases are irreconcilable, so it is all about the argument you can make.

In cases where there are two states have jx, then theres a race to the courthouse. Full faith and credit clause reinforces this. You are a citizen until you get where you are going. World-Wide Volkswagen Corp v. Woodson P was trying to keep it out of Federal court (figured they would get a better jury this way). Sued the distributor and the seller as a way of keeping it in State court. o Attempt to manipulate the joinder rules to make this happen. Foreseeability doctrine doesnt change depending on the victim. (bystander or drivers). Definitely limits the ruling in Intl shoe. You need fairness and minimal contacts to (p443). o Fairness: stays away from perjudice o Min: stays away from exercising control over people with no relationship to state.

10/22/08 So, to go back to World-Wide, Audi conceded specific Jx, but may have been able to argue for general jx due to the fact that the claim did not rise out of the contacts that they had with Oklahoma (they sold it in NY not OK). Asahi Metals v. Superior Court Stevens: Yes on minimum contacts: Test? Brennan +3: Yes: placing stuff into the stream = minimum contacts. WWVW: Yes Court: Min contacts? Yes. Fair? No. II(B) (Scalia sits this one out) Surprise!! There is no precedential value here. Typically, the opinion that joins in the judgment that has the narrowest grounds is considered of precedential value. However, in here, that doesnt happen. So, no precedential value. So, it appears that the best you can do is to use the dictum to argue from for future cases. So, what do lower courts do: 1) cite wwvw 2) Brennan + stevens=5 3) OC + Brennan=5

4) More Js of the Oconnor opinion are still on court. Factors towards fairness: Prejudice to D, Forum states interest, Prejudice to P, Efficiency. Hmmmm but it appears that if Zurcher had not settled with Cheng Shin THEN Jx would exist over Asahi. The reason being that the fairness grounds would include the Plaintiff and likely no longer include the states interest (see section IIB) Asahi rules have a perverse incentive on international defendants to not settle because of the unlikely ability to get indemnification of Asahi in another countrys court. Even under Brennans theory, the unpredictable eddies of the market dont get you minimum contacts. An oddity in the stream of commerce doesnt get you there. What Brennan and Oconnor says matters here.

10/27/08 Last week: Personal JX. Fairness, doctrine, ambiguity, room for argument, less coherence, etc. Changes in meaning of terms, etc. The line is a lot more fuzzy than in the rules. There are a lot less right answers here in jx land. Specific jx test: minimum contacts + fairness. Zippo Manufacturing v. Zippo Dot Com, inc. Passive: Posting o No purposeful availment of laws. No control over who reads it, and so not control over personal JX. Would otherwise lead to jx in every state. Would also deter websites in general. Intermediate: interactive. o Commercial entities: Ex: Amazon.com. Places that you can place and order. o Level of interactivity matters. If site has tried to avoid JX by not shipping products, then unlikely JX If it has been fortuitous that there is no shipping, then JX is possible if the level of interactivity & commercial aspects is high enough. Doing business: transferring files (seems meaningless as all websites do that). For example, the NY times crossword hypo that is on page 470. o Depends on business model o Transferring files? Well, thats all websites

Depends on shipments. If they dont ship to a certain place, they basically make the website passive, and then get out of Jx in that state.

Hypo: interactive website, toll free number, no online ordering: Dude orders off the toll free numbers, product is shipped to foreign state, hurts dude: o Jx? Yup. Did business in state. Minimum contacts: specific jx. Dude travels to foreign state to buy from storm o Jx? Yup. Minimum contacts Specific JX. Wont ship to TN. Dude goes to MO to buy. o JX? Nope, fortuitous, (WWVW) consumer moved it after the company deliberately avoided JX. Stream of commerce ends wherever the consumer buys it. Advertise in foreign state, will ship to some states (not dudes), also will name a store for you to go buy it at out of state. o JX: Yup. Targeted advertising (asahiOconnor opinion) gets you there. At that point you are availing yourself to do business in the state. (specific jx). Back to website and toll free #. Suit for copyright infringement, no products shipped yet. o No jx. Passive site Bensusan says no, but no toll free # (didnt need one) Inset Systems says yes, toll-free #. But, outer limits of personal Jx

If a decision is in one state about a company that resides in another, you take the judgment to the other state and file there for enforcement under the full faith and credit doctrine/rule. As for International companies, it depends on whether or not that country would have found for personal jx. (not a matter of US law). IF D doesnt show up, takes default judgment, and P comes up to Ds state to ask for enforcement, then the D can collaterally attack the JX of the original state in the proceedings for enforcement. o Risky: you lose ability to try case on merits. If D doesnt object to personal JX in answer, then you waive it. You can consent to JX in a given court via contract. Strictly construed. Includes the fine print. Personal JX requires sufficient contacts AND sufficient notice (due process). o Have to argue notice in a special appearance. o Type of notice given has to meet the constitutional standard. (see page 498). Notice must be reasonably calculated to make sure that the party knows they are being sued. (balancing test).

10/28/08 Personal Jx: more fun. Bird v. Parsons Enough for specific jx, not enough for general jx. If this was widgets, youd probably get general jx (Helicolpters and Perkins are the only two supreme court cases on general jx ever) o SO, what do you need for systematic & continuoys contacts? Physical presence What is the test for needing general jx vs. specific jx? That the claim arises out of or is related to the contacts. NOTE TO SELF: double check what exactly qualifies as minimum contacts. At what point do the contacts rise to the level of minimal? Hypo time: No store, Two contacts: ships shoes, employs salesman in WA. o Can WA sue them over unemployment ins? Suit arises out of the contacts, so specific JX needed: minimum contacts? Fair? (Yup, Yup) and viola, they can sue. o Can employees sue over breech of K? Contact: employees, min? (employees), fair? (yup) o Stock fraud? Needs general jx (not out of contacts). Sales not enough, employees not enough, need physical presence. o Now, if the stock fraud somehow goes to the employment or shipment of shoes then you might be able to get specific jx rather than general jx. o P buys shoes in St. Louis? related to for minimum contacts: can likely get specific jx. More Bird What If the Dotster defendants owned property in Ohio? o No general JX. Attach propertyquasi in rem And get your sue on.

BUT, Wait, no you cant Shaffer says NO, unless owning the property gets you up to the level of minimum contacts (or you are suing in rem). Shaffer may apply to in rem suitscourts are split. WORTH READING!

Burnham v. Superior Court o Yup, JX exists. All lower courts side with the Scalia4. Black letter BABY!! Exceptions: Special appearances (cant be served for present lawsuit). Q: if you are in for one suit, and they hit you with another that could be joined THEN , what happens? Lured in by fraud.

Driving through

Scalia 4 Yup

Visit dying child

Yup

Brennan 4 Is it fair? How long? Advantage/benefits LIKELY Maybe. NOT FAIR

Stevens Who knows

On crack, still

White and Oconnor are consistent with themselves. All other justices are not on the burnham court (stream of commerce and presence stuff). Interesting: Scalia is taking after brennan because of an incoming abortion case incolving the due process clause.

10/29/08 Sherry really wants us to hit 4(k) before going into JX issues for all things federal. Remember to include this on the exam. 4(K)(2) is a fall back only for international defendants that have enough contacts for Fed jx, but not for any states jx. Ten P, KY D. Accident in KY. Can P sue in TN st ct? o Nope. No personal jx. (no contacts, etc.) TN fed ct.? o Subject matter jx?

No: on federal Question Diversity? (if over 75k) yes. Personal JX? 4(k)(1)(a) State long arm statute? Yup. Notice (assume yes) Specific jx: no minimum contacts + fairness, claim arising out of the contacts. Not in this case General jx: Not citizen, not served in state, so NO.

Ten P, employed in KY. KY D corporation. Suit over fed employment discrimination in TN: Federal court? o Subject matter? Yup (fed Q) Personal JX: o 4(k)(1)(a): No (no contacts) o 4(k)(1)(b): N/A o 4(k)(1)(c): N/A Ten P employed in KY, KY defendant corp. Owner is TN corp. Employment Discrimination Suit in TN Fed ct? Subj matter? o Yup. Fed Q Personal JX? o Sue owner corp in TN. Owner corp will implead KY corp under rule 14. Then 4(k)(1)(b) will kick in to get JX over the KY corp so long as they are within 100 miles. However, if KY d is out of 100 miles, then the TN corp will have to file in a separate suit. (otherwise, the KY corp will file 12(b) motion to dismiss for lack of JX, and they will be off the case).

Sherry wants to sue Minn under ERISA over her retirement: ERISA gives nationwide fed jx: o 4(k)(1)(c): brings in ERISA. Functions as fed long arm statute o Need contacts: (courts are split, either minimum contacts with US, or minimum contacts with state). TN P, NC D, Accident in Indiana, service of D in TN: o Subject matter jx? Diversity jxdiff states, over 75k. o Personal JX?

Yup, served in Tn (Burnham). Is Venue appropriate? Look to 1391(a) 1391(a)(1): No, D lives in NC, not TN 1391(a)(2): No, accident happened in IN, not TN 1391(a)(3): No, only comes into play if there is no other place that actions could have been brought. o Could have been in NC under 1 o Could have been in IN under 2 SO, what happens? Under 1406, the court can transfer to another venue, or dismiss it. Likely instigated under 12(b)(3) motion to dismiss for improper venue Now, let us say that D motions 12(b)(2) to dismiss for lack of JX? Denied biotch! JX exists. OOPS, tries, 12(b)(3). o Denied! Waived under 12(g) and 12(h) for not having moved at the same time as earlier motion. Result: stuck.

NOTE: Jx is full state, venue is district by district. GET JX, then worry about venue.

To get jx: you always need: o Long arm statutes (state or FRCP 4K) o Meet/satisfy Due process Contacts Fairness o Notice

11/04/08 Federal Question jx Diversity JX (Tomorrow) Supplemental JX (Monday) Removal JX D can remove it to fed court. Party removing needs to show that the feds have jx. Fed Q JX: Plaintiff has to allege the federal question in the complaint. Defendants defense, even if based in federal law, is not enough for federal jx. o Anticipating the defense being based in federal law, and adding that into the complaint doesnt get you to federal jx. o Must be Necessary to a well-pleaded complaint. So, the federal Question must be necessary to the complaint. Translation, there is no cause of action without the federal question. (Mottley). AH HAH: If the complaint would survive a 12(b)(6) motion w/o the federal question then it is not necessary. If it will only survive with the federal Q, then it is considered to be necessary. o Tacking on a count to the complaint that is non-federal is allowed. Supplemental jx kicks in for you to get this. o Analyze the claims count by count to see if any of the claims are necessary to that count. If one is, then federal Q jx is established for that count. Then, to pick up supplemental jx over non-federal claims the counts have to be related to the same transaction or occurrence (Back to joinder rules and decisions). o Buzz word: Concurrent JX There is a presumption of this for cases where Congress has not limited jx to exclusive federal jx. If P brings suit in federal court it stays. o If P brings suit in state court D can have it removed to Fed court (stays there). Seems like the founders/congress didnt trust that state courts could be fair to people in diversity suits or competent with federal questions. Even if the federal Question is necessary to at least one count, is there still the possibility of a lack of federal JX?

Case Smith v KC title Moore v. Ches/Ohio RR Shosh. Mining v rutter Merrell Dow v Thomson Grable v. Darue

C of A State State Fed State State

Applic law Fed Fed State Fed Fed

Jx Y N N N Y

Federal cause of action is not enough if only state law is at issue. (no real federal claim). o Nor is it necessary to have a federal cause of action. Merrell Dow: Does the complaint satisfy Mottelly? Yup. o Nature of federal interest must be substantial. Only true for federal questions that are embedded in state causes of action. o Court holds that its not substantial in this case because congress did not intend for private citizens to be able to sue over FDCA. There is no private cause of action, hence no fed jx for private suits. o So, what Merrell Dow actually decided was: 1) Majority: No private cause of action, then no JX Dissent: Any fed q always gives rise to fed JX. Dissent: Case by case assessment is too malleable. (gets picked up in Grable in the end). o THE TEST is the test, as it currently stands, is on 544 from Grable. Dissent: Thomas: never does a fed q embedded in a state action give rise to fed jx. (Homles Dissent in American Well Works).

So, where are we at on federal subject matter jx dealing with embedded actions? Possibilities: 5) No private c of a, then no jx (MD majority) Last word=congress 6) Always (brennan MD dissent, smith) Last word=State courts/legislature 7) Case by case assessment (Grable) Last word=Federal courts 8) Never (Thomas dissent in Grable, Holmes dissent from earlier) Last word=Federal Courts (but decided once and for all). So, who is right? The MD majority. Its confusing as hell, but since Congress gave the power for JX to the courts, they should retain that power and can signal through the statutes and

the way they construct them what they want JX to be. Also, Congress is representative of the people and accountable, unlike the courts. So, it looks like the MD case is still controlling despite the grable decision. Of course, the Congress can always change 1331 to deal with any of this if they would like, but they havent done it in 30 years so dont hold your breath.

11/05/2008 Diversity JX day: Complete diversity doesnt care about what happened within one side of the v. its all about one side of the v. being diverse to the other side of the v. Options if Diversity jx. Isnt there Amend the complaint to make it so Court can dismiss it all and require a refilling. i. Either in state or in fed minus the non-diverse party Court can dismiss the non-diverse parties Sheehan v. Gustafson: Court of appeals is highly likely to affirm the district court in diversity issues as the standard of review is clearly erroneous due to the fact that it is a mixed question of fact/law. So, whatever the district court rules is pretty much going to stand. Burden of proof is on person seeking Diversity JX. So, if it is really close, the person seeking diversity JX loses.. o Strictly construed, so err against JX. NOTE: difference b/w citizenship for diversity jx and the ability of a court to exercise personal jx over a person in state courts (you know, minimum contacts, etc.). o Citizenship may be different for different purposes. o Probably can get general JX in Minnesota over G Hypos on 554: Test=presence and definite intent to leave. Courts will apply common sense presumptions to get at the intent to remain criteria. For example, college students are assumed to be citizens of the state they are from (not the state they are going to school in) unless they do things that indicated intent to remain. For ex: gets DL, registers to vote, lines up a job, rents apartment past term of graduation, etc.

Until you have presence, intent doesnt establish citizenship. For ex: renting place in CA, but not there yet, then you are still citizen of wherever you came from. On to Corporate Citizenship: Two tests for corporate principal place of business: o Nerve center o Place of operations Court picks one of two tests to use. Most courts look to see a) if there is a place of operations (if so, use P of Op test), and then b) the nerve center test if no P of Op exists.

And onto the damages issue of diversity: Only look at Ps amount of damages for diversity jx, not the counterclaim, etc. Diversity jx still holds if the amount awarded is less than the 75k need (hey, its whats in question, not what is awarded). Take JX seekers word on amount unless there is a legal certainty that they cannot recover more than 75k. o Legal certainty is the buzzword here. If burden is on P then the plaintiff needs to show that it is not a legal certainty that she cant get 75k o OR, D has to show that they cant get 75k. o OR, P has to show that there is a possibility of getting 75k. Most cases that are hard in this area have to do with punitive damages or with psychological harm.

11/10/08 More diversity (jx) Two P v one D for 50k each. o No jx (damages arent joint, not 75k) You cant have a hanger-on according to Delvecchio.was the traditional rule, may change up in light of future cases (tomorrows reading). If state law makes joint tortfeasors jointly and severally liable, then you can aggregate damages, otherwise, no way. P cant aggregate claims against muiltiple defendants in order to get to 75k o What, however, happens, if the P states 75K against one but not all of the Ds? Under traditional rules, no subj (JX) over the non-75k claims. Supplemental JX: what claims can tag along with a claim that meets federal subject matter jx. Common nucleus of operative fact (Finley) is the same standard as found in preclusion.

For something to be precluded, it needs to have a common nucleus of operative fact, and not be brought. o Also, this standard is highly similar (its a paraphrasing) to same transaction or occurrence. Unless congress negates pendant party jx, then pendant party jx is interpreted broadly. o This is why Aldinger comes out the way it does Under Aldinger: Unless congress has denied it, pendant party jx exists. o Under Finley: Unless congress has authorized pendant party jx, then jx doesnt exist.

Kroger: Diversity suit. A sues B, B impleads C. A cant sue C (no supp jx) if it blows up complete diversity. o AH: Congress, by requiring complete diversity in 1332 has explicitly denied pendant party jx (Fits under the Aldinger case/principle). 1367: Congress uses the constitutional language case or controversy as the outer limit of supplementary jx. Its a way of making the courts take cases. Extension of the pissing match. Designed to be as broad as the constitution allows. If a defendant wants to remove a case to federal court, then the court has to analyze if the P could have brought it in federal court. All the rules apply. If it could have been brought (with all claims) then it can be removed. Only D can remove Circuits are split about impleaded 3rd party Ds trying to remove. Diversity D cant remove case that is filed in own state court. On fed Q you can. D has to remove within 30 days of complaint IF there is JX If fed JX attached later, then 30 day clock starts at that point (P adds fed Q later, etc. D finds out that they are diverse, etc.) Cant remove diversity case after a year, no matter what.

11/11/08: Hangers on in Federal Court. T1 + T2 v. K: o Before 1367, both have to be over 75K o After 1367, only one has to be over 75K (Allapattah) T1 v. K1 ($80k) + K2 ($40k): o One K is over 75k, one is under. Over the 75k Kentuckian, yes, over the $40K, No (joined by rule 20--1367 exception) So, no supplemental JX. o Can dismiss the claim against K2, or dismiss claim altogether. T1 v. K1 ($80K) + K2 ($80K) o Yup, has original JX over both suits if they were brought individually, so all good. T1(80k Each) + T2(40k each) v. K1 + K2. o Nope. While T1 and T2 could each go after K1 and K2 individually, joining these defies the rule 20 provision of 1367. So, either two suits have to be filed or T2 has to be dropped and file in state court. T1(80K) + T2 (40k) v. K1 o By rul 20 party, against a D, not by a P against a rule 20 party. o 1367 only prohibits claims against people made parties under rule 20 So all good. K1 + T1 v T2. o No matter the dollars, no supp JX because it blows up diversity JX of original claim (no original jx, so no Supp jx). Has to dismiss the entire thing since there is no JX at all. Cant just dismiss the non-diverse plaintiff because the diverse plaintiff could never get diversity JX to begin with.

So, guess what, Allapattah drives the lower courts nuts because congress screwed up the drafting. OOPS, turns out some law professors wrote it. Hmmm what if there is a mix of diversity and fed q subject matter JX? Then what? How Sherry wants us to analyze it: o Is there original JX? 1367(a): Is it the same case or controversy? 1367(b): exceptions? o 1367(c): More exceptions? Court may do it. Doesnt have to.

Random factoid about Original subject matter jx (diversity). If P sues a diverse and a non-diverse party, then there is no original JX (original law suit: look at all Ps and all Ds) if you are looking for 1367 supplemental JX, analyze the original lawsuit to begin with, then look to 1367 exceptions, etc. o Hence no one can get out of federal court by drawing in someone else or my intervening on their behalf. Whole case has to be removed, all Ds have to agree with it. BIG FAT TIP FOR EXAMS: Sherry wants you to go through all the steps. Ex: o Citizenship? Where was he a resident? Has he changed his domicile? o Presence? Intent to remain? Arguments. o Presumption against federal JX MORE TIPS: o You dont need to name cases unless you are using a case to argue from: Know the rule, and be able to state it OR know the case. o While Allapattah would lead us to believe that a judge should dismiss the whole case, this is unlikely to happen. Rather, the judge wouldas is typicaljust remove the nondiverse party from the case o Show her you know your stuff. o She doesnt penalize for wrong answers. o Joinder, Personal JX, Subject matter JX, Eerie will be on the exam FOR SURE. o When something is arguable, then pick a side at the end of the analysis. o Some Qs have obvious answers, some are close, some are totally toss ups. Be sure to know what you are looking at and act accordingly. o Always give the rule (Implead under 14(a)). o Discovery: you are responsible for what is on the chart. As well as the basic stuff.

11/17/08 Hypo 1: hypo: sherry hit a guy with her car...she lives in TN, he lives in GA...he wants state law to apply because it's
strict liability...if its in federal court it won't apply

So, Under swift, someone trying to avoid a body of law could do so by moving, limiting the damaged they ask for, etc. It can be manipulated by either P or D depending on what is advantageous to them.

Eerie changes things so that state common law decided by the states supreme court is considered law under the ____ Act. Statutes were always considered to be law under that act (includes Swift decision). Hypo 2: So, dude wants to sue under NSRA (national snowmobile registration act)goes to fed court (fed Q) Dude adds tort claim under GA. o All good for fed subj matter JX (Fed Q + Supp jx) Fed standard applied to fed statute State standard applied to state tort claim. Any time there is a state law claim in federal court, it is subject to Eerie, and hence is governed by state law. Now, what if congress doesnt like a states law? o Cant change state law (p.593) o Pre-emption will get you there Build the NSRA with a pre-emption clause that establishes a federal negligence law, and that all claims must be brought in federal court. Moving to the harder stuff about Eerie: substance and procedure Substantive rules: State law applies under Eerie Procedural rules: federal law (FRCP) applies, (sometime)

So, what is procedural law under our cases? How litigation should proceed **Not outcome determinative** Manner and means form and mode What is substantive? **Not outcome determinative** (Ragan, Guaranty trust) Hypo: D files answer after 25 days. FRCP says 20 days, state rule says 30 days. Under Guaranty and Ragan, this is considered to be substantive law o Ragan goes on to say that FRCP applies in Fed Q cases, but not always in diversity cases as there may be a conflicting state rule. So, this gets messy because the FRCP are now substance and not procedure??? (there has got to be a way to fix this) So, what is the purpose of applying state substantive rules? o Avoiding inequality/unfairness based on citizenship o Avoids forum shopping (moving around to get a state of fed forum based on what you want to get).

Perhaps these are the tests then for whether or not something is substantive or procedural. Test out of Sibbach the test must be whether a rule really regulates procedure. o Means that it actually, arguably, seems to regulate procedure.

Byrd v. Blue Ridge Rural Electric Coop. Integral part of statute bound up with rights and obligations o THEN, state law applies. BUT, since this was not the case, the court looked to see if the use of a judge over a jury was outcome determinative. o And concluded that it was likely outcome determinative. Which makes it substantive BUT, the court says that there is a balancing test based on countervailing federal interests. o So, the court rules that the fed law should apply. Three tests for whether something is procedural or substantive (and therefore covered under Eerie) 1) Outcome determinative? (York/Ragan) 2) (really) regulated procedure? (arguably regulates) (Sibbach) 3) Balancing Test (Byrd) a. Fed v state interests.

11/18/08: More eerie than you know what to do with Q1: how do you tell the difference b/w substantive and procedural given our wacky test? Q2: What about the FRCP? Hanna v. Plumer Probably the most important case in the Eerie line Doesnt overrule York, but limits its outcome determinative test to being based in the twin policies of Eerie (Avoid forum shopping, avoid inequities). See page 611 at bottom o Measured at the time of the filing. Kicks out the balancing test from Byrd. Hypo: P fails to object to jury instructionsunder FRCP waives ability to appeal over that. Then tries to appeal under Eerie doctrine (York). Does the FRCP hold here? To hold, if outcome determinative, it must avoid encouraging forum shopping and avoid inequality to P and D. o Wouldnt know ahead of time that this would arise: no forum shopping

Would not derive advantage in outcome ahead of time: no inequality Federal rule holds.

So, ultimately, you have to argue how related to the merits something is, how visible it was at filing, how unequal it may be, etc. Everything has some effect on forum shopping or on forum shopping, so you have to argue that there is not enough effects to make it substantive. There is no mechanical test here. Hanna helps out, but does not give us a mathematical formula for it yet. Sibbach/Hanna -2: Must apply FRCP unless not arguably procedural. (losing argument in Hanna, wins in Sibbach). Hmmm if its outcome determinative then not applying state law would be to federally create state substantive law (or so the court seems to think). FRCP are treated as statutes, even though they really arent statutes. (critics want multiple tests for statutes, FRCP, and federal common law). If there is an FRCP on point it applies if it is arguably procedural Doesnt apply if against constitution, rules enabling act, etc. If rule 35 is arguably procedural, then what isnt? Back to Ragan: Does it survive Hanna? (Ragan: state statute of limitations holds) How to analyze an Erie question: Is it clearly substantive? OR Is it bound up with rights and obligations/integral part of statute (Byrd) Does it abridge/modify/enlarge substantive rights (2072) o If yes, Erie holds that you apply state law o If No, then: Does the conflict arise from an FRCP or statute? (Hanna) If yes: Sibbach path: Is there a direct conflict? (walker) o If yes: Is it arguably Procedural? If Yes: apply federal law (Sibbach) If no: apply state law If No, then head down the Erie path: o Is it outcome determinative? (does it encourage forum shopping or create inequities?) If no, apply federal law (because it is not outcome determinative and therefore no substantive in the Erie sense).

If yes: Are there countervailing federal interests? (Byrd) No: apply state law Yes: Do those interests outweigh the interests of using state law? (ex: juries, something in courtroom) REALLY RARE o Yes: apply federal law o No: apply state law.

Walker v. Armco. Steel Corp. Interpretation of rule 3 here is a little suspect. So, there is a difference in the approach b/w this and Hanna. Here they looked at it narrowly, in Hanna they looked at it broadly o Usually the courts look at it broadly. However, the recent momentum is moving more narrowly (towards Walker). Seems like they are really driven by the fact that they do not want to overrule themselves, so they are drawing fine lines to avoid that result. Klaxon: apply states choice of law doctrin (law that would be applied by state law). Van Dusen: In cases of transfers, apply law that the original states courts would apply. Webber v. Sobba So what if there isnt a ruling from the state supreme court, but a federal court needs to make a decision. 1) Certification 2) Predict how the state supreme court would rule. Did the 8th circuit get it right? (in reversing the lower court). o Well, they looked at other case law o The state court didnt grant summary judgment against the plaintiff (state court seems to be ok with defense). o Rone decision o Used the restatement, although Arkansas doesnt always stick to it. o District court (in Arkansas) denied SJ. This is an erie guess. Perhaps a misapplication of smith. NOTE: All but two states have certification statutes: Some are broad, some narrow. Rarely used because it is a hassle. Takes forever. State courts are not bound by Eerie guesses of federal courts. State supreme courts are the ultimate arbiters of state law.

12/1/08 Choice of law problem. See file. Sherrys exam tips: Review tomorrow Q&A on Friday December 12, 1:00 Moore room. Send in Qs by 7:00 am that day. Will not answer Qs after it is over. Basics: 4 hours Monday 8:30 to 12:30. Pickup exam between 8:00 and 8:30. Probably 2 essay question (sometimes 3) May have some short answer Qs (less than a paragraph, sometimes a list will do). Four guaranteed subjects: Joinder, PJX SMJX, Erie. May be combined, may not. Will be on the exam. NOTE: take a look at sherrys model answer, get an idea of how she creates her own list. Get points for statements of law, application of law to facts, good argument. No points for treatises, incorrect statements of law Irrelevant arguments Slight boost for good writing and organization. No subtractions for wrong anwers.

Case names: not necessary (can describe them). Makes referencing them easy. Sometimes the doctrine is all you need to know. (ex: minimum contacts + Fairness). Avoid abbreviations (no style points). If you use them, use the standard ones (see her slides). Can refer inside Qs, not in between Qs. Make VERY clear what your reference is. IF you run out of time, use outline style in writing (you can still get some points). If you get sick, emergency situation, etc. Call of Email Dean Sandine ASAP.

Even more advice. Dont look for issues that arent there, dont make the issues go away. Show your work. If you get the right conclusion, but dont say how you go there, you get no cash money Make arguments on both sides, but be sure to reach a conclusion. Follow through on toss up questions: analyze it both ways. KNOW ASAHI AND BURNAMs plurality opinion. Random oral argument re: diversity JX. Errors appellants lawyer makes? How would you answer judges Q? What would you ask for at the end of your argument? If you are appellee lawyer, what would you do next? Federal court does not have JX over a state court that has gotten JX through going in rem.

The Review Class: Ps POV o Who to include as other Ps and Ds Always ask do the rules allow me to make this claim against this particular party? Who may I join? What claims may I join? Who must I join? What claims must I join? (look to preclusion law to sort out which claims must be joined) Is a transactional relationship required? o Which of the multiple possible courts to bring suit (federal or state) Determined by SMJ and PJ and Venue Is there SMJ for every claim against every party? o Four ways to get SMJ: 1332, 1331, supplemental 1367, removal 1441 & 1446. 1331 fed q: must be necessary to the individual count (well-pleaded complaint rule). If we pulled fed Q out of this count, would it survive 12b6? If no, then necessary. 1331 if fed claim is embedded in a state law cause of action, then move to the Merrell Dow and Grable cases, look to the congressionally approved balance b/w state and federal courts test: is the private cause of action a missing welcome mat or door key? Looking to congressional intent, etc. arguments re: appropriateness. 1332: complete diversity. No P can be of same state as any D. Figure out citizenship of individuals. If you know where they were, see if it has changed. If you dont know, then see where they are and if they have intent to remain/no intent to leave. Always must have some domicile/citizenship. Corporations (1331(c): incorporation(s) and principal place of businessnerve center place of activitybothwhichever is more appropriate (argue for test). 1332: complaint is worth over 75k (unless it is legal certainty that the P cannot get over that amount) do look at whole complaint if one P is suing one D. Cant aggregate over multiple Ps/Ds

Sherry will tell us if the Ds are jointly and severally liable. Supplemental jx under 1367: Transactionally related to claim over which there is original JX (same case or controversy, common nucleus of operative factvery broad interpretations) Allapattah kept kroger: held that 1367 modified some parts of pre 1367 rules. A P that does not meet the JX amount can tag along with a P that does meet the amount, but not against a D that is under amount. o This gets all weird when it comes to counterclaims. Check this out. Removal: see slides. Is there PJX? Need either state long arm statute or rule 4(k). Needs to have notice too Constitutional authority: Citizenship Consent/waiver Service in forum state Sufficient contacts plus fairness o Specific jx: Claim arises out of contacts o Then, minimum contacts o Then fairness: traditional notions of fair play and substantial justice. o (Its all about analogies, arguments, etc. the zippo scale, etc. get crizazy) General JX: o Claim not out of contacts o Systematic and continuous contacts (usually physically presence) o OR: citizen, consent, service in forum state. (all count as general jx even if not minimum contacts). VENUE? For the original lawsuit in federal court, ask is the venue appropriate? Once a venue is appropriate, you are all good 1391 governs this.

Venue is appropriate in Ds state, where the cause of actions events occurred, fall-back: wherever PJX can be established (if first two options dont work). 1391(c): corporations: o Citizen o Where it resides (any state, then any district in which it has sufficient contacts so as to have PJX) If state has multiple districts, analyze contacts district by district. What should we plead? (see slide).(8(a), Rule 9, conformity to rule 11: Attny does reasonable inquiry, warrantednot frivolous/have or likely to have evidentiary support by disco). 15(a) Amednments: Before responsive pleading If no responsive pleading, then 20 days Otherwise, permission of judge or party 15(c): relation back Only needed if statute of limitations has expired. Same transaction or occurrence.

o What to allege in the complaint o Ds POV: o End case fast: Rule 12 dismissals 12(b)(6): can raise any purely legal questions (claim is precluded, etc.) NOTE: waiver: SMJ, and 12(b)(6), and failure to join a necessary party are unwaivable, all others are waived if they are not part of the first paper you file. 12(b)(7) and rule 19: o See slides Summary judgment: Directed verdict, JNOV (Rule 50) o Blame someone else Back to joinder Sherry is hitting on the fact that a few courts have interpreted 1367 to say that some of what we would normally consider to be 13b coutnerclaims do have

supplemental JX because they are so close to being part of the same case or controversy (see notes). 13g crossclaims are not precluded if not brought. 13h allows D to bring in an additional defendant or P in the counter or crossclaim. Can add new Ps to the counterclaim. Rule 14: Only for derivative liability. But, once joined as a party, rule 18 allows 3rd pP to join in other claims. Again, Pjx and Smjx need to be there. 3rd P D can claim against the original P under 14a2 (trans related) then add claims under rule 18. P can have claim against 3rd pD, under 14a3 o Kroger exception: these 14a3 motions need independent JX as well. o Deny, deny, deny. Rule 8 Rule 11 Pre-litigation questions: discovery. o Whats discoverable? Relevant, proportional, not privileged, does not need to be admissible, just needs to be likely to lead to admissible evidence. o Privilege: attny/client communication in confidence, for purpose of legal assistance o Attny work product: protects materials produced in anticipation of litigation, unless substantial need and undue hardship for opposing party would result. Mental impression are still privileged. o REMEMBER: all pretrial activity is supervised by judge under rule 16. They have a lot of power to do stuff here. Litigation Questions: Jury Trial and Erie: o Judge decides law, jury decides facts. Judge instructs jury on facts o Right to jury trial: In common law cases, o Erie thing: Byrd is questionable as it is basically never used. Post-litigation Questions: o New trial: against the weight of evidence, easier to get than JNOV or DV. OR, legal errors in the trial. o Make both motions together o Preclusion law: see slides. Claim preclusion (res judicata) Issue preclusion: collateral estoppel. Federal Jurisdictions: non-mutual defensive collateral estoppel:

o New D uses old case against same P Federal court: Non-mutual offensive collateral estoppel o New party P uses case against old party D ONLY if new P could not easily have joined the original suit. New party is never bound.

Choice of Law Problem 1) Bar membership pleading issue Rule 11 conflict Not clearly substantive/bound up/modifying substantial rights, etc. (Erie, Byrd, 2072) o Conflict is from FRCP 11 and NC rule 3. So Hanna applies Look at plain meaning (walker). Is there a direct conflict?: (no bar # in FRCP vs. rule doesnt contemplate this, list is not exhaustive. Make args on both side) If YES: No bar # in FRCP. Arguably procedural (Sibbach) o So apply Federal law. If NO: Erie outcome determinative test. No FS, no creation of Inequity o So, apply federal law.

2) Contributory Negligence issue Clearly substantive issue of law. So, under Erie, state law applies. Whats the law? Assuming that NCs law applies. Erie (state law from SC applies) i. Moron: no recovery 1. Q: is it still good law? (Weber v. Sobba): a. YES: nothing has changed at the SC. They havent reversed lower court contrib. neg. To overrule would be to undermine Erie itself. b. NO: state SC would overrule as evidenced by not reversing lower court comparative negligence rules. Mojority view is different now. c. N/A: different state interests, etc. Different level of contrib. neg. d. Alternative: go for certification. BUT rarely used for an Erie guess, and has all sorts of other problems. 3) Jury questioning issue. Not clearly subs/bound/abridging rights, etc. Conflict comes from local 47.1 and the state doctrine. If treated as FRCP

IF not treated as FRCP: Eerie Dual test: FS? Y Ineq? N i. Countervailing federal interests? Not sure if Judge will look to this. Not sure if the test applies. But, if it does then NO: Apply state law. YES: apply federal law.

Fun with JX Cybersell: FL citizen corporation Advertises on web Sells to all 50 states over the web o Ships via email or postal mail Cyber-sell: AZ citizen corporation SM name Beanies Unlimited CA citizen corp Webpage made by Cybersell OOPS, beanie of the month prints out as babe of the month (Cybersell employee probably did this) Hawthorne: MA citizen Sees cybersell online ad Visits their facility in FL, took class o Trips on floorboard and breaks leg

Carslon: TN citizen Kids print out beanie of the month. OOPS, get the babe o Pissed 1) Can Cyber-sell sue Cybersell in AZ for infringing its SM name? Does it matter if Cybersell has customers in az? a. YES. i. Contacts not systematic & continuous, but minimum contacts do exist (inset, INtl Shoe, Zippo). ii. Contacts are good enough to get specific jx: Bird v parsons, substantial connection enough to justify specific jx in copyright case. iii. Fairness? Huge corp, of course. b. No, but makes it easier What Sherry does: Specific or General JX?

o o

Is there a contact with AZ? Y Specific JX needed: Min contacts? Interactive site, commercial (Zippo)Highly interactive (because you can order/enter into contract on site). Enough for Min contacts. OR Ebusiness: transmission of files, minimum contacts. Fairness? What is they havent sold to anyone in AZ? Well, is it fortuitous or deliberate? If they have reasonably avoided AZ, deliberate availment not there. o Then its basically a passive site in AZ. Passive = no JX. If they have not avoided AZ, but just havent shipped there, then its fortuitous, and the interactivity of the website comes into play. Interactivity gets us to minimum contacts (Zippo), and voila, back to personal JX. Fairness? o Unfair, Reasonable effort to avoid jx in AZ. So, unduly burdensome to go there.

2) Beanies v. cybersell breach suit in CA? a. Yes i. Minimum contacts exist (web page was shipped, paid for, etc.) Entered into stream of commerce (WWVW, Intl shoe, Burger King). ii. Dispute arises out of those contacts (Breach of K, product shipped to Cali) iii. Fair? Yup. More Sherry: Specific or general? (whats the contact? Does the claim arise out of them?) o Specific: arises out of K, defective product, and shipping of site to Beanies Need min + fairness: Min contacts? o Entered into K o Solicited in Cali via website o Shipped physical product into Cali (different than Mcgee and Hansen, which were just Ks, whereas this is an actual product being shipped). What is they didnt know they were shipping to CA? o If they werent trying to avoid it, then they are still on hook. o If they were trying to avoid it, then they may be off the hook.

Fairness? Low burden, Asahi is different (foreign corps only), Cali state interest. No attempt to avoid Jx. 3) Hawthorne sue in MA for Neg? a. NO i. Minimum contacts exist, but claim does not arise out of them.

Sherry: Does the claim arise out of contacts? No o General jx needed then. Systematic and continuous contacts + fairness. (International Shoe) Only contact is Website (not continuous/systematic). o One contact isnt enough to get there (intl shoe). What if there is targeted advertising (New England snowbirds)? o Might get you to purposeful availment due to targeted advertising. May get you to minimum contacts. (not enough for general jx) Unlikely that it will get you to specific jx either because the advertisement isnt what the claim is about. o Disneyworld is one of the handful of cases that can get you to specific jx with the advertising. Due to the huge appeal of Disney. o For most courts, the fact that the P has to come to the D from the forum state keeps specific jx from being granted. 4) Carlson sue cybersell in TN for IIED? i. Depends on asahi, WWVW. 1. WWVW: Yup. Min contacts. Claim rises out of the contacts. Fair a. Like Audi. b. Not fortuitous. 2. Asahi: Maybe. a. States interest is still implicated b. Intent to get it into all states: built to deliver to all + adverstising. More Sherry: Specific jx: claim arises out of the harm o Where does stream of commerce end? In abstract: consumer Reality: Could be site viewer, could be Beanies. Could go either way. o Asahi: Under oconnor, not enough o Brennan: enough Designed to travel. Knew it was on the move. o

Joinder Problem 1) Barry can: a. File a permissive counterclaim under 13(b) regarding the car wreck needs independent jx. b. Implead Camille and David under 14(a)(1) for the roof i. Then add a claim against David under 18(a) after impleading him (derivative liability). But, needs independent jx. ii. Add D to the counterclaim under 13(h) and then 20(a)(2). c. Raise defenses under rule 12 or rule 8c (in his answer). 2) Camille can: a. Implead David under 14(a)(5) b. Raise defenses under rule 14(a)(2)(C) and 14(a)(2)(A) against Alice and Barry. c. Cant sue Alice over yarn 14(a)(2)(D). 3) David can: a. Implead Camille under 14(a)(5) b. File a counterclaim under 13(a) against Barry regarding the installation c. File a counterclaim under 13(b) and under 14(a)(2)(B) against Barry regarding the car wreck. Needs independent jx. d. Raises defenses against Alice and Barry under rule 14(a)(2)(C) and 14(a)(2)(A). e. Claim against Alice under 14(a)(2)(D) for the car. f. 13(a) counterclaim against Barry for reputational damage. g. Weird possibility: David might be able to file a motion under 13(h) to join B to the 14(a)(2)(D) motion against A. Under Thomas, this might be okay (same side of v.) under Asher, likely not. 4) 3 parts: a. David can: i. Implead Camille under 14(a)(5) ii. File 13(a) counterclaims for both roof and car against Barry. iii. File a 14(a)(2)(D) claim for the car against Alice. iv. Raise defenses against both Barry and Alice under rule 14(a)(2)(C) and 14(a)(2)(A) b. Before David acts, Alice can: i. File claims against David under 14(a)(3) for the car and roof (has supp JX.) BUT, if B is from another state, then this will need independent JX. (Kroger). c. After David acts, Alice can: i. Bring 13(a) counterclaim against David for car (has supplemental jx) ii. Bring a 13(b) counterclaim against David for the roof (permissive, needs independent jx) iii. Implead her insurance under 14(b). iv. File claims against David under 14(a)(3) for the car

v. File a 14(a)(3) claim against David for the accident (needs independent jx under Kroger). vi. File a 14(a)(3) claim against Camille for the roof (needs independent jx).(iffy under Asher as Camille is a 4th party Defendant not a 3rd party defendant). vii. Raise defenses against David and Barrys claims under rule 12 & 8 5) Camille can: a. File counterclaim against David under 14(a)(2)(B) b. Defend against David under 14(a)(2)(A) and against Camille under 14(a)(2)(C). c. Crossclaim against Barry under 14(a)(2)(B). (Not under Asher). d. Assuming that Alice successfully filed a 14(a)(3) against Camille, then Camille can file a 13(b) permissive counterclaim under 14(a)(3) (needs independent jx) (Asher says you cant do this BUT may allow for a regular 13(b)OK in all other courts).

Subject Matter JX problem: Party Alice Barry Camille David Claim 15k car 4K car 100K p/s 100k economic (missed business deal) Abuse by Elvis False writeup of accident 60K painting 3k car N/A Citizenship MN FL? MN? WIsco MN Other 1L, but applied for MN tutition Work in MN Enviro troublemaker

Elvis

MN

Police

1) Can any of the Defendants remove to Fed Court? a. STD: Fed court must have JX over the parties and claims for removal to happen. P must have been able to file suit in Fed court to begin with. b. No fed question. c. Diversity JX? i. 75k? 1. David: NO 2. Camille: Yes 3. Barry: Yes ii. Diversity? 1. David: no 2. Camille: yes 3. Barry: Yes d. So, original JX exists in claims against B and C e. Then head for 1367: Supp JX? i. 1367(a) Same claim or controversy? 1. Yes ii. 1367 (b) Exceptions? 1. If D is joined under rule 20 he blows up JX under 1332. So, No. f. Since David blows up diversity under 1367(b), there is no supplementary JX for fed court, and therefore removal is not feasible. g. Mottley Rule: Dont look at the counterclaims, just look at the Plaintiffs filing to establish the cash money number. i. There are two ways this doesnt work. 1. STD: can this suit be filed in fed court to begin with? a. Less than 75K: no b. Non-diverse: no

2)

3) 4) 5) 6)

7)

c. Your analysis was right, but the wrong analysis to do Can Barry Sue Camille or Alice in Fed Court? a. Original JX needs Fed Q or Diversity JX: i. No fed Q ii. Diversity jx? 1. Camille? Yes. Diverse, amount over 75K 2. Alice? Depends on Barrys citizenship. a. Did Barry Change Citizenship to MN? i. Presence? Yup ii. Intent to remain (debatable, but evidence includes going to school there and residency application). iii. Alternate Theory: Can he meet the amount in controversy? If not, no JX. 1. Std: Is it legally certain that he cannot recover over 75k (4 K car, 71K nightmares)? a. Arguments: i. Might depend on similar cases ii. Ask about other expenses 1. Shrink 2. Stopped work, school, etc? 3. School performance. iii. Everybody has nightmares: totally absurd. 1. Artificial inflation of damages to get it into federal court. a. Easy to allege, hard to prove. Yes, Diverse, over 75K No, 1441 (b). No removal in diversity case in own state. No, Delvecchio no aggregating claims. a. But they could if one was over 75K (Attalawhatthhecka) No. No complete diversity (required under 1332) a. Attalwhatthehecka: no contamination. b. What will happen: Either drop Alice or dismiss complaint i. Under Allapattah the court should dismiss the whole thing. c. Other Issue: i. A has alleged less than 75K. Is there still subj matter jx? 1. Original JX exists over C v. D. But not over A v. D 2. Is there Supp JX? a. 1367(a): Same case or controversy? Yes b. 1367(b): exceptions? NO i. Allapattah: since 1367 does not exclude cases such as this, supp JX is not denied based on amount in controversy in this case. Yes. Fed Question. Federal cause of action. 1331.

a. NOTE: can remove under 1441. (nonremoval from home state court only exists in diversity cases).