Erie and PJ- analytical framework VENUE and Discovery- memorize those rules Jurisdiction = In personam In rem Quasi

in rem type I Quasi in rem type II Power (Nexus) Presence Presence of Property Presence of Property Presence of Property + Notice Personal Service (in state) Publication Publication____________ Attachment + Publication

I. Personal Jurisdiction (PJ)- Power over something- Parties A) Can the P sue the D in this state? (Doesnt matter- whether state or federal court) B) Types of PJ- prefer In personam 1) In personam- Power over the defendant herself- contacts with the forum 2) In Rem- Over the Ds property- real or personal property- Shaffer 3) Quasi in rem (QIR)- over the Ds property C) Steps 1) State statute that grants PJ in this case 2) Constitutional valid/OK? Within the Due Process circle D) In personam 1) General- D can be sued in this forum on a claim that arose anywhere in the world 2) Specific- D sued on a claim that arose in the forum state (activities 1) Relatedness (Does the claim arise from the Ds contact with the forum?) E) Constitutional limits of PJ 1) Pennoyer v. Neff- Traditional bases of In Personam jurisdiction a. D is served w/ process in the forum-PRESENCE (General Jurisdiction) b. D is DOMICILED in the forum- GENERAL JURISDICTION c. D consents to PJ- Hess v. Pawlowski 2) Milliken v. Meyer- Upheld PJ based on Ds domicile in the forum, even though D was not personally served w/ process in the forum. (Domiciliary of the forum who was absent from the state) 3) Hess v. Pawloski- implied consent- expands Pennoyer a. PA driver to MA- car wreck in MA b. Upheld under non- resident motorist act- by driving into our state, you consent to jurisdiction for a case arising from your driving. You also appoint a state officer as your agent in that state for service of process. 4) Gray v. American Radiator- stream of commerce, indirect benefit a. Gray sued American Radiator and Titan under an Illinois statute that claimed that corporations and individuals were liable in Illinois courts for tortious acts committed in Illinois. b. Statute was satisfied b/c the tortious act takes place where the last act or resultant injury occurred (almost always in the forum state) rather where the negligent manufacturing of the product took place (outside the forum state) 5) International Shoe- new formula- DOES NOT OVERRULE PENNOYER a. D must have such minimum contacts with the forum so that jurisdiction does not offend traditional notions of fair play and substantial justice b. Minimum Contacts: Are contacts within a state Continuous and systematic or single and isolated? i. If continuous and systematic arising out of in-state activities, then always enjoy jurisdiction. ii. If C+S and substantial, but unrelated to cause of action, then general jurisdiction. iii. If single and isolated, then specific jurisdiction. iv. If S+I and unrelated, then NO JURISDICTION.

e.

f.

g.

h.

i.

j.

c. Reasonableness Factors: i. Inconvenience for the D and her witnesses- Analyze with Burger King- gravely inconvenient ii. The forum states interest- McGee iii. Ps interest- litigating at home iv. The legal systems interest in efficiency v. Shared substantive policies- Kulko v. Superior Court d. We can serve process outside the forum a. If the D is not present when served McGee- Specific Jurisdiction over NON-RESIDENT- quality of contacts over quantity a. Three Factors: i. Solicitation - D reached out to CA to do business with McGee ii. Relatedness - P's claim arises from the D's contact with the forum iii. Interest - CA has interest in providing justice its citizens. 1. TX said no, refused to enforce judgment, said CAs statute violates due process, CA doesnt have jurisdiction collateral attack (full faith and credit question). b. Jurisdiction is Ok in California over Texas company c. One K of insurance in California i. Texas company solicited business in California ii. California had an interest Hanson v. Deckla- PURPOSEFUL AVAILMENT a. Under Shoe, the contact must result from PURPOSEFUL AVAILMENT i. D must reach out to the forum (avail herself of the forum) ii. Woman set up trust with Delaware bank, moved to FL iii. DE didnt avail itself of FL WWVW- 1980- no jurisdiction a. NY family buys car in NY dealership. Gets into wreck in Oklahoma. In Oklahoma court, products liability b. Held: Oklahoma had no jurisdiction over the NY retailer or distributor. c. The two NY Ds didnt avail themselves of Oklahoma. Ps drove to Oklahoma, no good d. Foreseeability is relevant, but not that the product might get there is not enough. e. It must be foreseeable that D can be sued in that forum. Burger King (1985) a. K case brought in FL. Jurisdiction over two Michigan Ds. Sued in FL. b. There are 2 parts to International Shoe i. Contacts part- 20 year franchise with Florida 1. Must have a relevant contact before you even LOOK at fairness ii. Fairness part- to drag us to Florida 1. SC said no, you can travel, Michigan guys 2. Ds must show that it is so gravely inconvenient, that you are at a severe disadvantage in the case Ashahi- Stream of commerce a. Make valves in state A; sell them to manufacturers in state B; sends to C, D, E. My component blows up, injures someone in state C, D, E. b. 4-4 split i. Brennan approach: it is a contact if I put it into the stream and I reasonably anticipate that it will get to state C, D, or E. There was a contact here ii. OConnor: you need Brennan plus an intent to serve state C, D, or E. (Target C, D, or E) McIntyre- stream of commerce a. English company-metal shears sells them to company in Ohio. Ohio sells machines to other states, NJ. P sues English company in NJ b. Court holds no jurisdiction in NJ 6

i. 4 say Kennedy- no jurisdiction because English company didnt target NJ ii. 2 Breyer- dont take a position iii. Dissenters (Ginsburg)- consistent with Brennan- targeted US, should be subject to PJ k. Burnham (4-4 split) a. NJ citizen sued in California. Served process in California. Act occurred in NJ. General jurisdiction. b. Does presence when youre served in the state give general jurisdiction after International Shoe? There was general jurisdiction in California c. Approaches i. Traditional basis good by itself, don't need to look at minimum contacts - good b/c historical pedigree (Scalia in personam always good) ii. Every case must be assessed by Int'l Shoe Burnham derived benefit & availed himself of benefits of state (Brennan) l. Helicopteros- substantial continuous and systematic ties with the forum- General jurisdiction a. General jurisdiction- Corporations- continuous and systematic or doing business or corporate presence in state m. Goodyear 2011 a. Continuous systematic ties with the forum b. D is essentially at home in the forum i. Domicile ii. Corporations 1. Principal place of business/Incorporated c. General jurisdiction can NOT be based on buying and selling in that state; need physical presence in that state B) Analytical Framework 1) Does a traditional basis apply? Pennoyer- PRESENCE, DOMICILE a. If yes, based on Burnham- the split 2) International Shoe a. Relevant contact b/t D and the forum? a. Purposeful availment by the D- under McGee b. Foreseeability- that D could get sued in that Forum b. Assess relatedness- Specific or General jurisdiction a. Does Ps claim arise from the Ds contact with the forum? i. Yes- Specific ii. No- General- Goodyear c. FAIRNESS FACTORS Is jurisdiction fair on the facts of this case? a. Inconvenience for the D and her witnesses- Analyze with Burger King- gravely inconvenient b. The forum states interest- McGee c. Ps interest- litigating at home d. The legal systems interest in efficiency e. Shared substantive policies- Kulko C) Statutory inquiry- State Statute 1) Non-motorist statute 2) Long-arm statute- specific jurisdiction- Gray v. American Radiator- tort committed in forum state. a. Allows you to sue a non-resident who committed a tort in state B a. D committed a tort in the forum i. I manufacture widgets in State A. You order a widget in state B. Blows up in state B, sues in state B court. Long-arm statute. ii. Some courts say I didnt do anything in state A, no jurisdiction. 1. Or the injury is in state B D) Hypo: P lives MD, drives to VA. Goes to the clock shop and buys it. Drives back to MD, with the clock.

P gets injured in MD. Wants to sue VA clock maker in MD for a tort in MD. Long arm statute- MD PJ over a non-resident who commits a tort in MD. 1) Did Uncle Joe commit a tort in MD? a. No.- negligent in VA made clock in VA. b. Yes. P was injured in MD, there was a tort in MD. 2) Constitutional- PJ here? a. No traditional basis (Pennoyer)- no service, domicile b. International Shoe a. Relevant contact b/t Uncle Joe and MD? Purposeful availment of MD? i. WWVW- no purposeful availment; P took the clock to MD. Unilateral act of a third party. b. What if Uncle Joe advertises in MD, does business w/ MD? i. Looks like McGee- solicited business c. Relatedness (Does the claim arise from the Ds contact with the forum?) a. Yes, specific jurisdiction. d. Fairness factors a. Inconvenience for D- Burger King (gravely inconvenient, at a severe disadvantage). i. No, this is a neighboring state. VA, MD. b. MDs state interest in this case- tort against of one of its citizens c. Ps interest- injured, hard to travel to VA when injured d. The legal systems interest in efficiency- hard to apply here e. Shared substantive policies- Kulko- NOT really applicable here E) In Rem- Property in the Forum 1) Who owns that property F) Quasi In Rem- Property 1) Nothing to do with ownership 2) Ex: Pennoyer. Mitchell had a breach of K claim against Neff. a. Neff had land in Oregon- QIR jurisdiction b. Held: Seize property at the beginning of the case 3) Need a state attachment statute a. We have jurisdiction over the property where the D owns or claim to own it. b. Shaffer v. Heitner- seizing the property at the outset of the case isnt enough. Must also show that the D meets International Shoe. (minimum contacts) II. Notice- Service of Process A) FRCP 4- All constitutional 1) Process consists of a summons FRCP 4(a)(1) and a copy of the complaint 2) FRCP 4(c)(2) Service can be made by any non-party who is at least age 18 3) FRCP 4(e)(1)- Use state law methods where the service is effected, or where the federal court sits a. A lot of states allow mail service 4) FRCP 4(e)(2) Human Service a. Personal In-Hand Service- anywhere at all b. Substituted Service- only possible at Ds dwelling or usual abode; must serve someone of suitable age and discretion who resides there c. Defendants Agent- by K, by law (non-resident motorist act) 5) FRCP 4(h)(1)- serving a business- officer, or a managing or general agent a. managing or general agent- someone with enough responsibility 6) FRCP 4(d)- Waiver of Service- waiver by mail a. P mails process and 2 copies of waiver form, self-addressed stamped envelope to D a. Doesnt waive other defenses if signs the form b. If D doesnt sign the waiver, then you need formal service. Then D pays the cost of service. B) Constitutional Standard for Notice- Mullane v. Central Bank 1) Notice must be reasonably calculated under all the circumstances, to apprise the party of the

proceeding. a. Actually getting the service is not necessary if you meet Mullane b. Exception: Jones v. Flowers (2006) a. If you become aware it was not received, you may have to try other means of giving notice. b. Letters-taxes constantly unclaimed by D III. Subject Matter Jurisdiction (SMJ)- Over cases and claims A) What court do we go to in that state- state court or federal court? Can the court hear this case? B) Types of cases federal courts can hear: 1) Diversity of citizenship 28 USC 1332 a. The case is between citizens of different states a. Complete diversity (Strawbridge)i. No diversity if any P is a citizen of the same state as any D b. Citizenship of a human being (natural person)- 1 state i. US citizen- citizen of the state where domiciled (one domicile) 1. To establish a new domicile, you need physical presence and you must form the intent to make it your permanent home c. Citizenship of a corporation 1332(c)(1)- 2 states i. States where incorporated ii. Where the company has its principal place of business (PPB) 1. Hertz Corp. v. Friend- PPB- nerve center test- (where managers direct, control, and coordinate corporate activities)- usually the HQ d. Citizenship of unincorporated businesses- use the citizenship of all members- can have 50 citizenships. Ex: Teamsters cant be sued under DIVERSITY- all 50 states b. Amount in controversy exceeds $75k a. More than $75K- the claim b. Aggregation- add multiple claims to get over $75k i. Aggregate Ps claims if there is 1P v. 1D- claims dont have to be related ii. CANNOT aggregate if you multiple parties on either side 1. Ex: 1 P v. 2Ds; P brings one claim 40k and second claim 60K c. With a joint claim you use the total value of the claim- # of parties is irrelevant i. Joint tortfeasors/Joint owners of property 2) Federal Question Jurisdiction 28 USC 1331 a. Citizenship and amount in controversy are irrelevant b. Need a claim that arises under federal law a. Well-pleaded complaint rule (Mottley)- look ONLY at the complaint. In the complaint, ignore everything but the claim itself. i. RRs cant give away free passes- federal statute ii. Is the P enforcing a federal right under that federal law? 1. In Mottley- they had a K claim, not a federal question case C) Supplemental Jurisdiction- additional claims that dont meet SMJ- 28 USC 1367 1) For every single federal claim, there has to be federal SMJ (diversity of citizenship/FQ) 2) United Mine Workers v. Gibbs- Federal Ct. can hear claim 2 if its part of the same overall case a. If the claims share a common nucleus of operative facts, federal ct. can hear it. b. Two claims, TN v. TN- Claim 1 (Federal Labor Law); Claim 2 (State Law) 3) Mechanics a. Does 1367(a) grant supplemental jurisdiction? Yes, if it meets Gibbs. b. 1367(b) can kill supplemental jurisdiction- applies ONLY in diversity cases, NOT FQ CASES a. Only certain claims by Ps in a diversity case, NOT Ds D) Removal 1) (Move from state to federal, just file notice of removal) NEVER FEDERAL TO STATE 2) Or you can remand back to state if removal 3) Rules for Removal

a. Can remove if the case couldve been brought in federal court- (Diversity, FQ) a. Exception: cannot remove a DIVERSITY if any D is a citizen of a forum (IN STATE D RULE); does NOT APPLY IN FQ cases i. Hypo: P(SC) vs. D1(NY) and D2(GA); in GA court- cannot review b. Must remove w/in 30 days of service of process c. All Ds who have been served w/ process must join the removal- UNANIMITY d. The 30 days starts anew w/ each NEWLY served D 4) 1441 5) 1446 6) 1447 IV. Venue- Which federal district? A) Ps Choices on Venue 1391(b)(1),(2) 1) (b)(1)- in any district where all Ds reside. If all Ds reside in forum state, then you can lay venue where any one of them resides. a. Residence for venue purposes- NOT CITIZENSHIP a. A human being resides in district where domiciled b. Business- all districts where subject to PJ in this case 2) (b)(2)- where a substantial part of the claim arose- can be more than one district B) Transfer of Venue (from one federal district to another federal district)- 1404, 1406 1) Original federal court is the transferor; the court to which we transfer is the transferee 2) In both statutes, the transferee MUST be a PROPER VENUE and have PJ over D. 3) 1404- the transferor is a PROPER VENUE; we may transfer based up on convenience and the interest of justice. (CENTER OF GRAVITY) a. Look at private and public factors- discretionary 4) 1406- the transferor is an IMPROPER VENUE; court may dismiss or transfer in the interest of justice. C) Forum Non Conveniens- court will dismiss b/c theres another court thats the center of gravity 1) Transfer would be impossible (different judicial systems). Foreign country or federal/state 2) Piper Aircraft v. Reno- Scotland plane crash, case brought in PA. a. SCOTUS said the case in PA should be dismissed, belongs in Scotland (center of gravity) b. Looked at public and private factors- footnote 6 3) The other court must be adequate and available. Remedy is not a V. Erie Doctrine (Diversity case)- Must the federal court follow state law? A) Erie v. Tompkins- must apply state substantive law. 1) Definition of a claim 2) B/c of RDA 1652; 10th Amendment- Reserve powers B) Hanna v. Plumer- two doctrines 1) Is there a federal directive (statute/FRCP/Constitution) on point that conflicts w/ state law? a. If yes, it trumps the state law- based on supremacy clause. b. Test the FRCP with the REA- Rules Enabling Act (2072); valid if it doesnt modify substantive rights. a. Arguably procedural- See Shady Grove. c. If no federal directive, go back to Erie, see if its substantive. a. Outcome determinative- Guaranty Trust v. York- state SOL is substantive i. Pure Erie problem. SOL is outcome determinative. If you ignore the state law, you get a different outcome than if you apply the state law. Therefore, its substantive. b. Balance the interests- Byrd v. Blue Ridge- state law no jury, judge wants to send it to the jury. i. Apply state law unless federal system has an interest in doing it differently. In this case, state law didnt have a reason. c. Twin aims of Erie- Hanna- If the federal judge ignores this state law, will people flock to federal court? i. Avoid forum shopping

ii. Avoid inequitable administration of the law d. Gasperini 2) Hypo (Shady Grove) FRCP 23 allows class actions. Diversity case, claim asserted under state law. State law says this claim has to brought individual. Can the federal court ignore the state law? a. Is there a federal directive- yes, FRCP 23- valid- joinder of claims 3) Hypo: state law- sue for med mal-must go to arbitration. If you dont like the arbitration award, you can go to court, but jury is told about the award. Does the federal judge have to apply the state law? a. No federal directive on point here. b. Outcome determinative? Argue it both ways- maybe c. Balance the interests? Yes, the state has a huge interest. Federal, not as much. d. Twin aims of Erie? Ignoring the state law here will lead to forum shopping. That is inequitablein-staters wont be able to go to federal court. VI. Pleadings- Documents filed in court A) The Complaint (P) 1) Rule 8(a)- must have: a. A statement of SMJ b. Short and plain statement of the claim a. Twombly and Iqbal i. Court ignores conclusions of law and looks only at alleged facts ii. The facts must support a plausible claim iii. Court uses its experience and common sense to assess plausibility (subjective) c. Demand for relief 2) Rule 9(b)- when alleging fraud- you need details in the pleading B) Ds Response- Answer 1) Rule 12- must respond w/in 21 days after service of process a. By motion (request for a court order) or; a. 12(e)- motion for more definite statement- gibberish complaint b. 12(f)- motion to strike- ask court to strike a part of pleadings c. ***12(b)- motion to dismiss defenses OR in answer i. Lack of SMJ ii. Lack of PJ iii. Improper venue iv. Insufficient process- problem w/ summons or complaint v. Insufficient service of process- not served right under FRCP 4 vi. Failure to state a claim vii. Failure to join an indispensible party b. By answer a. Must respond to the complaint- Admit, deny, or lack sufficient information [8(b)(5)] i. Lack sufficient information- when not in your control ii. Failure to deny is an admission on any allegation except damages b. Raise affirmative defenses FRCP 8(c)(1)- injecting a new fact i. SOL, statute of frauds ii. Raise affirmation defenses or waive them 2) 12(g); 12(h) a. 12(b)2-5 must do it in your first response, or else theyre waived b. 12(b)(6-7) can be raised anytime through trial, NOT ON APPEAL c. 12(b)(1) SMJ can be raised anytime during the case, even on appeal 3) HYPO- P sues and D moves to dismiss for insufficient service of process- 12(b)(5) a. Court denies 12(b)(5). D asserts no PJ in her answer. D could NOT raise PJ, it was waived. VII. Joinder of Parties- how big the trial gets A) Claim Joinder by the P- FRCP 18(a) 1) P can join any claims she has

2) Then you have to assess SMJ B) Claim Joinder by D 1) Counter-claim- FRCP 13(a),(b)- claim against an opposing party, in the answer. Usually against P. a. Compulsory FRCP 13(a)(1)- arises from same transaction or occurrence (T/O). a. Must assert this claim in the pending case, or the case is waived. Use it or lose it. b. Always meets 28 USC 1367, Gibbs. b. Permissive 13(b)- doesnt arise from same T/O. a. May assert it in this case, but you dont have to. 2) Cross-claim- 13(g)- against a co-party. Multiple Ps/Multiple Ds- Same T/O a. NEVER COMPULSORY!! b. Hypo- A, B, C car crash. All claims >$75K. No FQ. You represent C, what claims will you file? a. C files compulsory counter-claim against A. SMJ is fine here. b. C may file a cross-claim against B. (Co-party, same T/O) NO SMJ here- no diversity, no FQ. i. Supp. Juris.- 1367(a)- yes. 1367(b), fine, since claim by D. C) Proper Parties- who may be joined? FRCP 20- available to P a. 20(a)- Co-plaintiffs- T/O, common question of law/fact b. 20(b)- Co-Ds- T/O, common question of law/fact c. Check for SMJ D) Necessary and Indispensible Parties- FRCP 19. Who should be/must be joined? 1) *Is A(Absentee/Non-party) necessary/required? 3 tests a. Test 1 [FRCP 19(a)(1)(A)]- Without A, the court cannot accord complete relief among the parties. Efficiency b. *Test 2- [FRCP 19(a)(1)(B)(i)]- As interest may be harmed if she is not joined. Focus on absentee. c. Test 3- [FRCP 19(a)(1)(B)(ii)]- As interest may subject D to multiple or inconsistent obligations. Hypo- 1000 shares of stock in XYZ Corporation. D says he paid for 500 shares. P sues XYZ Corp, wants an order to have stock reissued. C is the absentee. Is Absentee necessary? Yes. FRCP 19- Test 1 met. Test 2 met-harmed. Test 3, multiple obligations. Is Joinder feasible? Assess PJ, and SMJ over absentee. If bringing in absentee wont destroy diversity. If joinder is not feasible? Then the court must either proceed w/out absentee OR dismiss the case. FRCP 19(b) factors: (b)(4) If the court dismisses, will the P have an adequate remedy? If court dismisses, then absentee is indispensable- 12(b)(7) Joinder checklist: Procedurally SMJ- diversity (amount, citizenship); FQ Supp. Jurisd.- 1367(a),(b) Starts with C- Counterclaim/cross claim (Existing parties) Starts w/ I- Joining a new party Impleader/Third Party Practice- FRCP 14 D will join a 3rd party D. Because the TPD may be liable to the D for the Ps claim. (Indemnity/contribution on that claim) 2 Joint tortfeasors injure P. TPD is a new party. P can assert a claim against the TPD. TPD can assert a claim against P. MUST arise from same T/O. 3 claims D vs. TPD. TPD v. P.

P v. TPD

SMJ Supplemental Intervention- FRCP 24- raised by absentee. Absentee brings herself into the case; either as a P or a D. Either to assert a claim or defend a claim. Need to assess SMJ over the claim, then Supp. Juris. Two Types: 24(a)(2)- Intervention of Right- if the absentees interests are harmed if not joined. 24(b)(2)- Permissive- Your claim or defense, and the pending case have a common question of fact or law. Class Actions FRCP 23 Where the P rep sues on behalf of the group 4 requirements- 23(a) Numerosity- joinder is impracticable Commonality- At least one question of law/fact common to the class- See Wal-Mart- no commonality Typicality- the reps claim must be representative of the class Fairness- rep fairly and adequately protect the interests of the class Types of Class Action- Choice 23(b) 23(b)(3)- common questions predominate over individual questions; the class action is the superior way to resolve the dispute 23(b)(1), (2)- mandatory classes Motion to Certify Class Action 23(c)- court certifies, appoints class counsel, defines the class Notice of Pendency 23(c)(2)(B) Under FRCP 23b(3) class- individual notice to parties reasonably identifiable Who is bound by class action? All class members, except those who opted out of a 23(b)(3) FRCP 23(e)- cant settle or dismiss class action unless court says its OK SMJ Class Action- for citizenship- look only at the rep. Rep must be diverse from all Ds. Amount in controversy- Exxon Mobil v. Allapatah- OK if the reps claim is >$75K VIII. Discovery A) Required Disclosure FRCP 26(a)(1)- Some stuff has to submitted 1) (a)(1)(A)- Initial disclosurea. Identify people who have discoverable information that you might use at trial. b. Must identify documents and ESI (electronically stored information) c. P must give a calculation of damages; D must tell us about insurance 2) (a)(2)- expert testimony 3) (a)(3)- pretrial disclosures- witnesses, allegations B) 26(b)(1)- Can discover anything relevant to a claim or defense 1) reasonably calculated to lead to admissible evidence C) 26(b)(3)- Trial Prep material/WORK PRODUCT 1) Material prepared in anticipation of litigation; protected from discovery generally a. Can override work product protection- if you can show substantial need, and you cannot otherwise get that evidence. b. BUT some work product is absolute- mental impressions, conclusions, opinions and legal theories c. Can be generated by a party or ANY representative of a party.

a. Doesnt have to be created by a lawyer!! d. Ex: Boat wreck, hires private investigator who writes a memo about the wreck. Protected by work product. D) Discovery Tools- what about info from a non-party? 1) Deposition- FRCP 30 (oral); FRCP 31 (written)- under oath, orally before trial. a. Can be parties or non-parties. Non-party MUST BE subpoenaed! 2) Interrogatories- FRCP 33- written questions in writing under oath- ONLY TO PARTIES 3) Request to Produce FRCP 34 written request for access to stuff/documents a. 34(c)- can get information from nonparties, with a FRCP 45 Subpoena 4) Medical Examination FRCP 35- Need a court order. a. Can be ordered of a party, or a partys custody or legal control a. Ex: Parent and child 5) Request for Admission FRCP 36- Only to parties a. Force a party to admit or deny any discoverable matter IX. Pre-Trial Adjudication A) 12(b)(6)- Motion to dismiss for failure to state a claim- before the litigation began 1) Court NEVER looks at evidence. 2) Only looks at the Ps allegations in the complaint. Ignores conclusions of law- looks at allegations of facts. Whether the facts alleged state a PLAUSIBLE CLAIM. B) Motion for Summary Judgment FRCP 56- court will look at evidence- (Depositions, interrogatories, affidavits, declarations) 1) DO WE NEED A TRIAL?? No dispute of fact, dont need a trial. 2) Standard 56(a)- Discretionary a. No genuine dispute on a material fact. a. If there is, must deny motion for summary judgment. b. Youre entitled to judgment as a matter of law. 3) Matsushita, Anderson, Celotex- loosen up summary judgment a. Still, a Ps motion for summary judgment is rarely granted Ex: P is a pedestrian, got hit by D. D moves for summary judgment, gets affidavits from 3 people. P needs evidence, doesnt have to decide credibility (must deny summary judgment). Goes to trial. Scott v. Harris- videotape can show that there is no dispute, can go to trial. X. Trial A. Right to a Jury- Disputes of fact- damages and credibility of witnesses. No jury-bench trial a. FRCP 38(b) demand for jury trial or else you have waived b. 7th Amendment- Federal Civil Cases i. Preserves the right to a jury, doesnt grant or create that right. ii. Only in cases at law, not cases at equity. c. Historical Test under 7th Amendment- right to jury in common law England 1791 i. Chauffeurs Union v. Terry (SCOTUS 1990) 1. Two part test a. Is the claim analogous to a claim that existed in English common law in 1791? (Usually answer to this is YES) b. Focus on the remedy sought by the P (at law v. at equity)- law court i. Only at law- damages, but now equity and law are combined ii. Beacon Theatre; Dairy Queen 1. Determine jury right, issue by issue, NOT center of gravity (all or nothing) 2. If an issue of fact underlies both law and equity, you get a jury. 3. Generally, we try the jury issues first. iii. Equitable remedies

1. Injunction 2. Specific performance 3. Rescission 4. Reformation B. Special Motions at Trial a. Judge decides whether plaintiff out enough evidence AT TRIAL i. Motion for JMOL Rule 50 (a)- Directed Verdict- takes case away from the jury 1. 50(a)(1)- grant this motion if reasonable people could not disagree on the result a. MUST BE BY MOTION, court cant do it on its own 2. 50(a)(2)- cant move for this until the other side has been heard at trial 3. Basically like summary judgment ii. Renewed RJMOL 50(b)- but comes up after trial; after denied JMOL 1. After jury is entered for the other side- take the judgment away from the winner and enter it for the loser a. Same standard as JMOL 2. Within 28 days after the judgment 3. Must move for JMOL at a proper time AT TRIAL or else you waive RJMOL iii. Motion for a new trial FRCP 59(a)(1) 1. Within 28 days after the judgment 2. Only if judge thinks something went wrong at trial; lets start over 3. Any grounds pretty much; discretionary 4. Sua sponte- on its own; or with a motion XI. Appeals A. Final Judgment Rule (FJR) 1. Every order that the judge makes is either final or interlocutory (not final) 2. Can ONLY appeal from a final judgment. 3. After making this order, does the trial judge have anything left to do on the merits of the case? a. If Yes, then not appeal. b. If No, then can appeal 30 days after the final judgment. Summary judgment not appealable. Cannot appeal motion for a new trial B. Interlocutory review (orders that are not final) 1. Statute a. 1292(a) Interlocutory Orders appealable as of right- mostly injunctions b. 1292(b) Certifications of Certain issues for interlocutory appeals 2. FRCP a. Rule 23(f)- allows Ct. of appeals discretion to hear an appeal of a class certification ruling b. Rule 54(b)- multiple claims or multiple parties, then the trial judge can expressly treat as final a ruling on that party or claim 3. Common law a. Collateral order doctrine- where the trial court ruled on an important issue, but its collateral to the issues on the merits of the case. b. Make sure this issue is not reviewable- court of appeals discretion. XII. Claim and Issue Preclusion 41(b) A. Claim Preclusion (Res Judicata) [13(a)] a. You only get to sue once on the same claim. If you do, second case gets dismissed. b. Three Requirements i. Case 1 and Case 2 were brought by the same claimant against the same defendant ii. Case 1 must have ended in a valid final judgment on the merits

1. FRCP 41(b)- Every judgment is on the merits unless its based on jurisdiction, venue, or indispensable parties iii. Case 1 and Case 2 asserted the same claim 1. Majority view (Same transaction/occurrence) 2. Minority rights primary rights- different claim for each right invaded a. One lawsuit for body, one for property c. Hypo# 1: A sues B for personal injuries, final judgment. A sues B for property damage from the same crash. 1. Element 1- Yes 2. Element 2- Yes (valid final judgment on the merits) 3. Under Majority view- yes (Same T/O); under minority view- No d. Hypo #1: Same facts as Hypo #1. A sues B- final judgment. B sues A. i. Dont dismiss under claim preclusion- Element 1 not met ii. Dismiss under compulsory counterclaim e. Apply the preclusion of the system (federal or state that the case was heard in) that decided case 1 B. Issue Preclusion (Collateral Estoppel)- takes one issue out, streamlines case 2. a. Five elements i. Case 1 must have ended in a valid final judgment on the merits. ii. Show that the same issue was litigated in Case 1. iii. That issue must have been essential to the judgment in Case 1. iv. Against whom is preclusion used? Only used against somebody who was a *party (includes those in privity- Taylor v. Sturgell) to Case 1 (Due Process/Constitutional Rule) v. By whom is preclusion asserted? Mutuality rule- can only use preclusion if you were a party to Case 1 1. (Non-mutual issue preclusion)- used in Case 2 by someone not a party in Case 1 a. Non-Mutual Defensive- it is the defendant in Case 2 is using it; Most courts say yes if the other party had a full chance to use it. i. You lend your car to your roommate- vicariously liable for what your roommate does with your car. Roommate is in a collision with Uncle Rich. 1. Case 1- Rich sues roommate, roommate wins. Rich negligent. 2. Case 2- Rich sues you. You cant get it dismissed under Claim Preclusion. a. Element 1 met; 2 met- same issue; 3- issue essential; 4- yes; 5- non-mutual- Yes, most courts say yes, if the party had a chance to litigate it. b. Non-Mutual Offensive- it is the plaintiff in Case 2 who is using it. Most courts reject non-mutual offensive. Federal trend say its OK if its fair. i. You lend your car to your roommate- vicariously liable for what your roommate does with your car. Roommate is in a collision with Uncle Rich 1. Case 1- Rich sues roommate, roommate wins. 2. Case 2- You sue Rich. b. Parklane Hosiery - non-mutual offensive Ok if you base it on fairness factors: i. Other party had a full chance to litigate it in Case 1. ii. I could foresee multiple suits.

iii. You could not have joined easily in Case 1. iv. No inconsistent judgments. (Cant pick and choose previous judgments)