CIVIL PROCEDURE OUTLINE

THE CONSTITUTIONAL FRAMEWORK FOR U.S. LITIGATION

I. PERSONAL JURISDICTION
For ct to have personal jurisdiction, needs both amenability and adequate notice.
J U R I S D I C T I O N
O V E R P A R T I E S
N o t i c e . M u l l a n e .
A m e n a b i l i t y
I n R e m
I n P e r s o n a m
Q u a s i I n R e m .
S h a e f f e r .
S p e c i f i c
O t h e r
G e n e r a l
D o m i c i l e
I n c o r p o r a t i o n
C o n s p i r a c y
T r a n s i t o r y . B u r n h a m .
o n ! A r m S t a t u t e
C o n s t i t u t i o n a l
R e " u i r e m e n t s
R e a s o n a b l e n e s s
I n t ' l S h o e . A s a h i .
# i n i m u m C o n t a c t s
I n t ' l S h o e .
T o r t i o u s A c t $ % i n s t a t e
c o n s e " u e n c e s . C a l d e r .
P u r p o s e f u l A & a i l m e n t .
H a n s o n .
S t r e a m o f C o m m e r c e .
W o r l d w i d e .
S i n ! l e C o n t a c t .
M c G e e .
' N e c e s s i t y (
C o n s e n t . C a r n i v a l .
S y s t e m a t i c a n ) C o n t i n u o u s
C o n t a c t s . H a l l .
R e l e & a n t C o n t a c t s .
H a l l . R o s e n b e r .
* o r e s e e a b l y h a l e ) i n t o f o r u m s t a t e .
! e a t o n .
C o n t r a c t .
B u r e r ! i n .
A. The Historic! Roots o" Perso#! J$ris%ictio#
In 19
th
c., amenability was placed in one of the following categories:
1. !esident of the "tate # $ersonally "erved in the "tate % &menable
'. (on)resident of the state # $ersonally "erved in the "tate % &menable
*. !esident of the "tate # $ersonally "erved +utside the state % &menable ,Milliken v. Meyer:
domicile in the state alone is enough. -id Milliken survive Shaffer v. Heitner.
/. (on)resident and non)property owner who was "erved +utside the state)(+0 amenable
1. in rem juris ,if - owns land in that state. $rop must be attached at beginning of lawsuit.
2. quasi in rem juris ,If - owns prop in that state but there is a dispute about an issue other
than the prop. $rop also must be attached at beginning of the lawsuit. 0his was later e3tended to
include attaching debts owed in that state to ma4e creditors liable in any state in which their debtors set
foot.
in Pennoyer, ".5. didn6t actually change these rules: even a more adventurous state statute couldn6t
e3ercise pwr beyond these bo3es under the new 1/
th
&mend -ue $rocess 5l.
-omicile 7 8urisdiction may be e3ercised over a person who domiciled in forum state, regardless of
where they reside. -omicile is based on intent to remain for an indefinite period. Milliken. 5iti9en
of forum state can be served outside of the state.
Incorporation 7 8urisdiction may be e3ercised over a corporation incorporated in the forum state.
&. Stt$tor' Co#stri#ts o# Perso#! J$ris%ictio#
1
1. :ong arm statute);3tends the long arm of state personal juris to other jurisdictions.
'. "ome states impose a limit on state ct juris under its state statutes, which may be below what fed
5on allows. ;arly in '<
th
c.)states had idea that could push their limit, later)when ".5. e3panded
due process, these statutes remained on the boo4s and became restrictive.
*. +ther states do not impose any limits beyond the state and federal 5onstitutions. 0here is a trend
in that dir. :g6est such state%5&.
/. FRCP R$!e ()*+),+- "ervice of a summons=is effective to est juris over the person of a - )A+
who could be subj to the juris of a ct of gen juris ,state ct in the state in which the district ct is
located.
o !eq.s fed ct to obey state juris6al statute.
o If could6ve obtained personal juris over - in state ct in this states, u can also do so in fed
ct >but by implic if u could not have done so >b?c it would be barred by the state6s long)
arm statute@, u can6t do so here.@
o If long)arm statute barred suit in state ct and didn6t have this rule and sued in fed
ctwould disrespect a state policy ,contrary to federalism, would clog fed ct.s w? more
bi9.
1. !ule /,4,': if e3ercise of juris is consistent w? 5on and laws of A."., serving summons?filing a
waiver of service is also effective, w? respect to claims arising under fed law, to est $8 over person
of any - who is not subj to the juris of the cts of any state.
C. The Mo%er# Fr.e/or* E.er0es: Beginning process of changing Pennoyer under due process
clause:
1. In Pennoyer v. Neff)"tate may req corp. to appt an agent to rcv summons to consent to be
sued as a condition for doing bus. there ,dictum
'. 19'<s)If drive in state, consent to be sued in that state".5. upheld those statutes.
*. & co. was not subj to personal juris if co. has no office in that state or doesn6t sell in state
but only solicits?ads in state. 5o.s too4 adv of this, until International Shoe Co. v.
Washington, which said that for a - co. to be subj to a jmt in personam, if he is not in that
territorial juris, he must only have certain minimum contacts w? it such that maintaining a
suit does not violate Ctraditional notions of fair play and substantial justice.D
0o the e3t that a corp e3ercises the privilege of conducting activities w?in a state, it
enjoys benefits and pro of laws of that state. +bligations may result, incl req6ment
that corp. respond to suit brought against it there.
Einimum contacts theory of consent, 1
st
broad departure F Pennoyer
obligations based on min contacts must be related to claim in suit
D. Proce%$res "or Ch!!e#0i#0 J$ris%ictio#
,1 -o nothing. -ecline to appear, suffer a default jmt against you, and attac4 jmt only when $ see4s
to enforce it in a subsequent proceeding in a different jurisdiction. ,5ollateral attac4. 0he only way to
do a collateral attac4 in any juris. is to default.
But there is the serious ris4 that the '
nd
ct might reject the jurisdictional challenge, and - will
not have an opp to attac4?present other dfs on the merits.
,' !aise personal jurisdictional df in pre)answer motion or in answer.
'
In !ule 1',b states)E&8+!I0G !A:;: by showing up there to contest jurishave conferred
juris to det juriscan6t collaterally attac4 in another juris. whether - puts up df on merits or not.
If lose the motion, can then try merits and then appeal on both issues ,preserve rt to
appeal juris.
- must raise juris6al df the 1
st
time it raises any issue ,by motion?appearance?answer or - will
have waived its juris6al challenge.
- must also litigate promptly, in a pre)answer motion, or, if - ma4es challenge in answer, by
promptly moving for dismissal on this gd.
,* Einority rule: Ea4e a Cspecial appearanceD to raise jurisdictional challenge. & Cspecial
appearanceD allows - to object to juris w?o the action of objecting being itself consent for jurisdiction.
If lose the motion, can either default on merits and appeal on juris +! continue on
the merits and appeal the merits if you still lose, but not both.
If - loses ,' or ,*, - might perhaps be allowed to appeal immediately, or might have to wait
to appeal after a final judgment for $ is given.
CHALLENGING PERSONAL JURISDICTION
# a + e m o t i o n t o ) i s m i s s
f o r l a c + o f p e r s o n a l
, u r i s ) i c t i o n - . / ' b ( ' / (
0 i n # o t i o n 1
C a s e i s
d i s m i s s e d .
D w i n s .
o s e # o t i o n
I f ) e f a u l t - n o
c o l l a t e r a l a t t a c +
a l l o $ e ) . D h a ) h i s
2 ) a y i n c o u r t . 2
B a l d w i n v . I o w a .
C o n t e s t t h e
m e r i t s .
0 i n o n m e r i t s 1
C a s e o v e r ,
D w i n s .
o s e o n m e r i t s 1
C a s e o v e r ,
D m a y a p p e a l ,
i n l ! d i n "
p e r s o n a l
# ! r i s d i $ i o n .
C O U R T
U S I N % & R C P
D e f a u l t o n m e r i t s - l e t
, u ) ! m e n t b e e n t e r e ) . 0 h e n
c o u r t t r i e s t o e n f o r c e
, u ) ! m e n t ' f u l l f a i t h a n )
c r e ) i t ( - c o l l a t e r a l l y a t t a c + .
0 i n a p p e a l 1
C a s e o v e r ,
D w i n s
o s e a p p e a l 1
P a y # ! d " m e n $
*
# a + e S p e c i a l
A p p e a r a n c e a n ) m o & e
f o r l a c + o f p e r s o n a l
, u r i s ) i c t i o n .
0 i n # o t i o n 1
C a s e i s
d i s m i s s e d .
D w i n s .
o s e # o t i o n
D e f a u l t o n m e r i t s - l e t
, u ) ! m e n t b e e n t e r e ) -
a n ) a p p e a l t h e c o u r t 3 s
r u l i n ! t h a t i t c o u l )
a s s e r t p e r s o n a l
, u r i s ) i c t i o n
C o n t e s t t h e
m e r i t s .
0 i n a p p e a l 1
C a s e o v e r ,
D w i n s
o s e a p p e a l 1
P a y # ! d " m e n $
0 i n o n m e r i t s 1
C a s e o v e r ,
D w i n s .
o s e o n m e r i t s 1
C a s e o v e r ,
D m a y a p p e a l ,
e ' e p $ o n
p e r s o n a l
# ! r i s d i $ i o n .
S P E C I A (
A P P E A R A N C E
C O U R T
D e f a u l t o n m e r i t s - l e t
, u ) ! m e n t b e e n t e r e ) . 0 h e n
c o u r t t r i e s t o e n f o r c e
, u ) ! m e n t ' f u l l f a i t h a n )
c r e ) i t ( - c o l l a t e r a l l y a t t a c + .
0 i n a p p e a l 1
C a s e o v e r ,
D w i n s
o s e a p p e a l 1
P a y # ! d " m e n $
E. S1eci"ic J$ris%ictio# "ter ,2(3
1. "pecific jurisdiction: min contacts # acts related to "E of the suit ,Carising underD #
reasonableness.
) Eust 1
st
chec4 long)arm statute?common law that e3presses that state intends to e3t personal
juris over non)resident and immunities ,Crocker # !ule / ,4,1,aeven if filed in fed ct.
) Einimum contacts can be established through ,1 in)state tortious act ,even if out of stateH ,'
dealings with residentsH ,* mar4et activities in case of product liabilityH and ,/ contract.
4 FRCP ()*+),+ 7 $ersonal jurisdiction over persons ,a subject to jurisdiction of state in which
court is located, including long arm statutes or ,b within 1<< miles of courthouse if parties added w?in
F!5$ 1/ or F!5$ 19.
'. "ingle)contact ruleIa single transaction may be enough to establish personal jurisdiction over -,
providing claim arises from that single contact and that the 1 transaction has a CsubstantialD connection
w? the state. 0his is viewed as the outer limit of e3ercise of jurisdiction against an outside defendant.
,McGee v. International ife Ins. Co.
*. $urposeful availment testI- must by some act purposefully avail itself of the privilege of
conducting activities w?in forum "tate, thus invo4ing the benefits and protections of its laws. ,Hanson
v. !enckla
/. "uasi in rem pretty much deadIall assertions of state juris must be evaluated according to the
standards of International Shoe and its subsequent cases. 0he standards of personal juris are the same
for in personam and quasi in rem cases, so might as get in personam juris b?c unltd whereas quasi in
rem juris is ltd to the val of the prop. ,Shaffer v. Heitner
/
1. ;conomic test of serving the mar4etIif dir6ly?indir6ly serve m4t in other states, not unreasonable
to subj manu or distributor in one of those states for products liability.
) Eere foreseeability that product will enter forum state not enough. Foreseeability is
significant only if the defendant should have been aware of its minimum contacts with the forum so
that it could Creasonably anticipate being haled into court there.D Consumer#s unilateral act of bringing
-6s product into the forum "tate is not a sufficient con6al basis for personal juris over -. ,Worl$%Wi$e
&olks'agen v. Woo$son
) Jhat if distributor did ship some to +K but not enough for gen juris and not specific car that
injures $s. don6t 4now yet
2. $ersonal juris is distinct from choice of law. ,(eeton v. Hustler Maga)ine* Inc.
L. ;ffects testIin libel cases, a state may have personal juris over -s b?c of their intentional conduct
in another state that is targeted and calculated to cause injury in forum state. ,Cal$er v. +ones
) but the holding here is unclear.
) Mow much - must 4now about causing injury to $ unclear ,Pavlovich
) lower cts have also applied this to II;-
N. In Ks cases, gauge fairness from the circumstances and a wide variety of factors ,,urger (ing v.
-u$)e'ic)
) & choice of law clause is relevant because it shows the defendant has Cpurposefully invo4ed
the benefits and protectionsD of forum law and could reasonably foresee litigation in the forum.
) Factors include if ,1 he has a contract that somehow ties the parties6 business activities into
forum stateH ,' a choice of law clause e3istsH or ,* - could reasonably anticipate being required to
litigate in forum state. ,urger (ing.
4 -istinguishing fact patterns in ,urger (ing:
a. :ocation of decisionma4ing: - 4new that decisions made in F:.
b. -etails of Burger King operation controlled in F:.
c. 5ontract governed by F: law ,which is different than F: jurisdiction
d. $ reached out to BK to negotiate contract.
e. "i9e of contract: '< years, O1 million.
f. $ayments due in F:.
g. 5ontract became binding in F:.
h. (o inconvenience to $ due to ease of modern travel.P
i. - was an e3perienced businessman and accountant.
j. 5hoice of law clause implies some suits can be filed in F:.
4. - participated in decision to send employee to F: for training.
l. Binding arbitration in F:.
9. :ac4 Cof fair play and substantial justiceD can defeat personal juris even when a - has minimum
contacts and state has power. Is this an additional or replacement test to the minimum contacts test.
,.sahi
o ' elements of minimum contacts test: - must have purposeful contact w? the forum
&(- ct must weigh overall fairness of e3ercise of personal juris 5 considering factors
such as the inconvenience to the defendant, the plaintiff6s interest in a ready forum, the
1
state6s regulatory interest in the claim, and the ease of access to sources of proof.
,Worl$%Wi$e &olks'agen v. Woo$son
o Burden shift: &fter plaintiff establishes purposeful contacts, defendant must prove
jurisdiction is unreasonable to avoid personal jurisdiction
o Jeigh 1 factors:
1. burden on -
'. forum state6s ints
*. $6s interest in obtaining relief
/. Interstate judicial system6s interest in obtaining most efficient res of
controversies
1. shared interest of the several states in furthering fundamental substantive social
policies. .sahi.
(ot Eaj: conduct li4e designing product for the m4t in the forum state,
advertising in forum state, est6ing channels for providing reg advice to
customers in forum state +! m4tg product thru a distributor who has agreed to
serve as the sales agt in the forum state
-eclined to decide whether 5ong could authori9e fed ct $8 over alien -s based
on aggregate nat6l contacts
o Facts underlying this case:
1. $roduct intended for general world wide distribution.
'. Involves indemnification between two foreign defendants.
*. 5alifornia geog6ly inconvenient forum for -.
/. Foreign - would be subjected to A.". law.
1. 5alifornia had no interest)$ had settled.
2. "ale and shipments too4 place entirely overseas.
F. Ge#er! J$ris%ictio#
1. Ge#er! 6$ris%ictio# e3ists when the defendant6s contacts with the state are substantial enough to
justify jurisdiction over the defendant based on any claim 7 even one that is completely unrelated
to the defendant6s forum contacts, whereas s1eci"ic 6$ris%ictio# e3ists when the defendant has
relatively few contacts with the forum, but the claim arises directly out of those contacts.
'. International Shoe dictum: continuous and substantial bi9 may justify suit against a corp. for c?as
not related to those activities.
*. ;ven when c?a does not arise out of or relate to the foreign corp.6s activities in the forum "tate, due
process is not offended if corp. does Ccontinuous and systematicD bi9 in that state. ,Perkins v.
,enguet Consoli$ate$ Mining Co.
/. "ometimes qualitative nature doesn6t w4)if a lot of buying but not a lot of selling there
,Helicopteros Nacionales v. Hall
1. For indivs., hard to 4now what this might meanIfn 1 of ,urnham, ".5. reserved jmt on
thatsuggests that general juris only applies to corp.sleaves open . of assoc.s and partnerships
,no ".5. holdings, lower cts go both ways
Indivs can be taggedtransitory juris under Burnham
2. Is a co. engaged in constant Internet selling to consumers in a state subject to general jurisdiction in
that state. 7 Je don6t 4now, b?c Gator.com vacated. "ome states have developed a sliding scale
2
analysis to determine whether a site is subj to personal juris based on the level of interactivity of
the website and whether website targets the forum state.
G. Co#se#t
1. Jhen $ files lawsuit, $ consents to personal juris there.
'. &ctual consent:
a. By coming into ct and filing general appearance.
b. File answer w?o objecting to personal juris or other actionswaives obj to personal juris, or
c. 5onsent before suit filed. For e3ample, by a forum)selection cl in a K ,Carnival Cruise
ines.
) But there are probs of in%bargaining powermay not be valid under the state6s law of
Ks.
) :oo4 at law of where K written to see whether?not barred such a clause.
) In principle, may be cases in which K so unfair or bargaining so unfair that%-ue
$rocess violat ,but we haven6t had a case yet.
) 5onsent before filing is allowed if ,a applicable state law is metH ,b fundamental
fairness test is met. Fundamental fairness determines if power is too unbalanced by
loo4ing at location of business, present of fraud or overreaching, consent of -.
*. Implied consent)19'<s: if drive in state, consent to be sued there. Apheld in yrs before
International Shoe for corp.s and for indivs driving there.
) $rob6ly would be analy9ed under min contacts analysis, not consent analysis today.
) -on6t 4now if ".5. would uphold a consent theory if claim arising F actions ta4en outside of
forum.
H. Tr#sie#t J$ris%ictio#
1. Individual tagged in forum state subj to personal juris there ,,urnham v. Superior Ct
'. ;3ception: - has immunity if fraud or duress were involved in luring - into the state. Wyman.
*. -oes not apply to corporations, because officer of corp. must be doing something on behalf of
corp. in that state to be tagged for service, and so get specific juris
/. 5ould ,urnham ever be distinguished on its facts. 7 only * days, on bi9 and to see 4ids
o Jhat about ne3t person who has even less contacts.
o "eems to say yes, but no cases
I. J$ris%ictio# &se% o# Pro1ert'
1. In rem)involves title to land and objects, sei9ures, mortgage foreclosures, div of prop, etc.state
has juris to adjudicate
'. -ivorces are treated as in remcan dissolve marriage wherever 1 spouse lives ,but only applies to
marriage itself, not prop?custody of children which are in personam matters
*. "uasi in rem unimp under Shaffer but might still want b?c long)arm statute doesn6t reach far
enough to est in personam juris or to grab for security or psych6al reasons ,but in that case, might
have to pay bonds
/. ' j.s in Shaffer suggested that may still have quasi in rem for real prop for hist6al reasons
J. E7ce1tio#s
1. 5onspiracy) :ower cts have held that if as a matter of substantive law, ppl would be considered
coconspirators and 1 coconspirator subj to personal jurisother coconspirators are also subj to
personal juris w?o req6ment of Cpurposeful availment.D ,Gu$aitis
L
) 0he states have diff standards to det. 0here is no agreement on what conspirator must have
done. 0his is new and controversial.
'. Fraud) Wyman ,tagging b?c fraud
*. (ecessity) If no place where can be adjudicated, suggestion that juris by necessity, but no holding
on this issue
) Footnote in Shafferfootnote in Hall: ".5. e3plicitly refused to decide doctrine of juris by
necessity
) If no juris in A.". and no place that all * -s could be sued$ could sue in multiple
jurisdictions
) Eaybe improper to focus on fairness to $ rather than the fairness for - req6d by 1/
th
&mend
-ue $rocess 5lause
/. Jitnesses to testify in crim trials are immune from being tagged in that state
K. Notice
1. Jas F!5$ !ule / or state equivalent complied w?.
'. Failure to comply w? the statutes that govern how notice must be donejudge may enforce the
rule by granting motion under !ule 1' ,b ,1 to dismiss or !ule 2< ,b to vacate jmt.
) 5t would grant such motions for deterrent effect, to send msg to $, process serving
community, and othersprivate m4t repercussions
*. 5on. req.s best notice available that6s practicable under the circumstances. ,Mullane
/. $ersonal service is not always necessary. ,Mullane
1. 5on.6ly actual notice is sufficient. ,Mullane
2. "ubstitute service allows for process papers to be left with a person of Csuitable age and discretion
residing in the dwelling place in questionD, F!5$ /,e,', or through mail, if ac4nowledged, F!5$
/,d,'. "ee F!5$ / for ,h corporationsH ,f foreignerH ,g incompetentsH ,i Anited "tatesH and ,j
other govts.
L. (otice not invalidated by lying or fraud, unli4e an enticement to get - into juris to tag -.
L. Reo1e#i#0 J$%0.e#ts
&ll states have a motion to reopen jmt, li4e !ule 2<,b, but often time limits and give judges
discretion to refuse to reopen jmts even if conditions met. It is easy to overstate the success rate of
such motions.
Eore li4ely judges will reopen default jmts than if - has shown up, esp if reason to believe
something fishy about service of process.
F!5$ !ule 2<,b allows to reopen for:
,1 mista4e, inadvertence, surprise, or e3cusable neglect
,' newly discovered evidence
,* fraud, misrepresentation, or other misconduct of an adverse party
,/ jmt is void
,1 jmt has been satisfied, released, or discharged, or a prior jmt upon which it is based has
been reversed or otherwise vacated, or it is no longer equitable that jmt should have
prospective application
,2 any other reason justifying relief from the operation of the jmt
,1),*) Eotion must be made w?in 1 yr
,ran$on v. Chicago ,./.0.: case can only fall into a single category.
N
II. VENUE8 FORUM NON CONVENIENS8 TRANSFER
V E N U E
4 u r i s ) i c t i o n
o & e r P a r t i e s
5 . 6 7 .
D 3 s r e s i ) e n c e
P l a c e o f e & e n t s
o r p r o p e r t y
8 s c a o e 9 a t c h
& O R U ) N O N
C O N V E N I E N S *
T R A N S & E R
S t a t e
* e ) e r a l
* e ) e r a l T r a n s f e r
* e ) e r a l * o r u m
N o n C o n & e n i e n s
' c o m m o n l a $ (
S t a t e T r a n s f e r
' s t a t u t e (
S t a t e * o r u m N o n C o n & e n i e n s
' c o m m o n l a $ (
5 . : ; : ' a ( 1 T r a n s f e r
5 . : ; < 1 I m p r o p e r = e n u e
5 . : ; > 1 P r e t r i a l # o t i o n C o n s o l i ) a t i o n
5 . < 6 . 1 I m p r o p e r 4 u r i s ) i c t i o n
A. Ve#$e
Qenue refers to the place within a sovereign jurisdiction where a given action is to be brought. It
matters only if jurisdiction over parties has been established.
"tatutory limitation
Fed: in which district action can be brought, state: in which cty
-esigned to spread cases out
"ome critics: don6t need b?c personal juris, but 5ong hasn6t agreed w? those critics
8ust trac4 the fed?state statute
'N A.".5. R 1*91,a: ,1 where any - resides if all live in same state
,' where substantial part of events?omissions giving rise to claim occurred,
or a substantial part of property that is the subject of the action is situated
,* In diversity cases, venue lies in any judicial district where any - is subject
to personal jurisdiction when action started if no district in which action might
otherwise be brought. In federal question cases, venue lies in any judicial
district Cin which any defendant may be found, if there is no district in which the
action may otherwise be brought.D R 1*91,b,*.
o & corporate - is deemed, for venue purposes, to reside wherever it is subject to personal
jurisdiction. R 1*91,c
o &ssociation is deemed a resident of its principal place of business.
o &lien is subject to venue anywhere in the Anited "tates. R 1*91,d.
R 1*91,d also applies to alien corporations, subjecting them to suit not just where
they do business, but in any judicial district.
"upreme 5ourt held that 'N A.".5. R 1*91,d eliminates any special statutory venue
impediment to suit only with respect to foreign -s because they, as aliens, may be
sued in any federal district. 0he other -s may not necessarily be sued in any
9
judicial district because they may not inhabit, be found, or transact business
everywhere in the A."..
fn '/: would allow any domestic co. to be sued anywhere if foreign - allowed, and
that6s bad policy1*91,b must be met for &m. -s before add foreign -s
Qenue is waived unless challenged in a timely fashion ,before motion or answer.
B. For$. No# Co#9e#ie#s : Tr#s"er allow the dismissal or transfer of a claim for reasons of justice
or convenience, normally by -.
For forum non conveniens, has to be at least 1 place where can be brought.
$resumption in law in favor of $6s choice, but can be overcome if private and pub int factors
outweigh, must be balanced
$rivate interest factors ,affect parties themselves include
,a relative ease of access to sources of proofH
,b availability of compulsory process for attendance of unwilling witnessesH
,c cost of obtaining willing witnessesH
,d possibility of view of premises, if appropriateH
,e any practical problems that ma4e trial of a case easy, e3peditious, and ine3pensive.
$ublic interest factors ,int of polities include
,a administrative difficulties flowing from court congestionH
,b local interest in having locali9ed controversies decided at homeH
,c interest in having the trial of a diversity case in a forum that is at home with the law
that must govern the actionH
,d the avoidance of unnecessary problems in conflicts of laws or in the application of
foreign lawH and
,e the unfairness of burdening citi9ens in unrelated forum with jury duty. 5hoice of law
is not a factor. Piper .ircraft.
"tate 0ransfer, controlled by statute, allows transfer between counties. (o new case is started.
"tate Forum (on 5onveniens, common law, allows dismissal of claim for new trial in another
state or country.
Federal Forum (on 5onveniens, common law, allows dismissal of claim for new trial in
another country.
o 0he possibility of a change in law should not be given substantial weight unless the
remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that
it is no remedy at all. If ct had to give weight to possible change in law, forum non
conveniens doctrine would become virtually useless b?c $s usu select forum where
choice)of)law rules are most advantageous, and already clogged A.". cts would be
flooded w? litigation. Piper .ircraft.
1<
o -ismissal could, at court6s discretion, include requirement to consent to jurisdiction and
waiver of statute of limitation in new court.
o -ismissal on forum non conveniens never tried ,either no case?v small settlement
&m cts 4now this, reluctant to do so, have put lots of conditions on ,incl. admit
liability and then just decide damages abr based on foreign country6s laws
Federal 0ransfer, statutory, allows transfer to another federal district. Note- !equires court
permission.
o Ander ; ,(<()+, can be transferred to any district ct where could6ve been brought in 1
st
place. 0hus, venue and federal jurisdiction requirements must be met in new court.
o if $8?venue lac4ing, ct may -I"EI"", or
Ander ; ,(<=, transfer is allowed from a district where venue is improper in the
Cinterest of justice.D
Ander ; ,=>,, transfer is allowed from a court with venue but without personal
jurisdiction to a court with jurisdiction, stating that Cthe action shall proceed as
if it had been filed in = the court to which transferred.D
law of transferor state doesn6t go w? case, apply law of transferee state
o Ander ; ,(<?, a judicial panel is established to consolidate pretrial proceedings of
multidistrict litigation in a single district.
Asually, is it defendant who moves for transfer or forum non conveniens. 5ase may only
transferred to a district where $ would have had the right, independent of -, to bring the action.
Qan -usen rule: after transfer, apply the law of the transferor state ,substantive law orig forum
would have applied follows case. 0his does not apply if the original venue is improper.
o Ferens -octrine 7 &pply Qan -usen -octrine even when venue changed by $.
III. FEDERAL SU&JECT MATTER JURISDICTION
S U + J E C T
) A T T E R
J U R I S D I C T I O N
S t a t e C o u r t 1
G e n e r a l S u b , e c t
# a t t e r 4 u r i s ) i c t i o n
* e ) e r a l C o u r t 1
i m i t e ) S u b , e c t
# a t t e r 4 u r i s ) i c t i o n
D i & e r s i t y
* e ) e r a l
Q u e s t i o n
C o m p l e t e
D i & e r s i t y
A m o u n t i n
C o n t r o & e r s y
S U P P ( E ) E N T A (
J U R I S D I C T I O N
D i & e r s i t y
* e ) e r a l
Q u e s t i o n
11
S$@6ect Mtter J$ris%ictio# is jurisdiction over a 4ind of case. "tate 5ourts have general
subject matter jurisdiction. Federal 5ourts have limited subject matter jurisdiction, including
ambassadors, interstate conflicts, admiralty, diversity cases, and federal question cases.
;3clusive federal jurisdiction over admiralty, antitrust, copyright?patent, Fed 0ort 5laims &ct,
and ban4ruptcy cases. R 1***, 1**/, 1**N.
& $ may choose federal over state courts because of ,a greater speedH ,b less biasH ,c choice
of judgesH ,d jury poolH ,e convenienceH ,f access to witnesses.
$ has burden of showing case is within the court6s subject matter jurisdiction.
& court can dismiss case any time for lac4 of subject matter jurisdiction. 1',h,*
"E8 has to do w? bounds of pwr of ct itself
A. Fe%er! A$estio# J$ris%ictio#
'N A"5 R 1**1 gives the federal courts jurisdiction over Call civil actions risi#0 $#%er the
5onstitution, laws, or treaties of the Anited "tates.D
Jell)pleaded complaint rule: 0he federal question must appear on the plaintiff6s well)pleaded
complaint.
o $6s original c?a must arise under A.". law or the fed 5onstitution.
o It is not enough that $ asserts a state)created claim that requires an interpretation of
federal law or that anticipates that - will raise constitutional defenses. ouisville 1
Nashville -ailroa$ Co. v. Mottley.
o For efficiency ,may trump rationality?fairness
-eclaratory 8mt &ct ,R ''<1)5an sue for declaration that in compliance w? all laws and
standards
o Eaj view: can6t sue for declaratory jmt that - couldn6t br?K
o But arising under can be invo4ed in cases where - could6ve sued, to preempt other side
5on6al provisions read to give 5ong a lot of pwr, juris6al statutes read much more narrowly
&. Di9ersit' J$ris%ictio#
'N A"5 R 1**' gives the federal courts jurisdiction over controversies btwn citi9ens of diff
states or btwn citi9ens of a state and citi9ens or subjects of a foreign state.
0his requires ,1 complete diversity as well as satisfying ,' amount in controversy.
,1 5omplete -iversity 7 Ander diversity jurisdiction, no plaintiff can be a citi9en of the same
state as any defendant. Stra'2ri$ge v. Curtiss ,(ote: jurisdiction stems from 5onstitution,
&rt III, and has been limited by 5ongress. & non)diverse party can be removed to create
diversity unless indispensable under F!5$ 19,b.
determined based on citi9enship at commencement of action.
1'
& person is a citi9en of a state of the A.". w?in meaning of 'N A.".5. R 1**' if that
person is a citi9en of the A.". and is domiciled w?in the state in question.
-omicile: $hy presence ,residence?dwelling # intent to remain indefinitely
0he statute requires diversity of citi9enship, not residence in a foreign state, and the
' are not synonymous. -e$ner. France case
& resident alien is a citi9en of state where domiciled.
&lienage jurisdiction e3ists where suit is between A.". parties and foreign parties,
but does not include suit solely between foreign parties.
but construed to e3cl when diverse adverse A" citi9ens # foreign nat6ls on both
sides of v., to prevent circumvention of just foreign nat6ls suing ea other by just
adding A" citi9en as co$ or co-
& corporation is a citi9en of any state ,1 where incorporated and ,' where it has its
principal place of business, either ,a home office >nerve center test) where decisions
are made, the MS@H or ,b location of main production or service >muscle test) where
the corporation does more stuff than anywhere else@. R 1**' ,c,1.
$artnerships, associations, and unincorporated groups are deemed citi9ens of any
state where a member is a citi9en. R 1**',c,1.
Eaj rule: domiciled wherever any gen partner lives
"ome cts: distinction btwn partnership as whole and what may tric4le down
non)diverse party can be dismissed if 1 of many co$s
but if partnership sued and 1 not diverse, doesn6t change, still at time suit
filed
Ander 'N A"5 R 1*19, a court will ta4e jurisdiction of a suit in which a party has
been Cimproperly or collusively joinedD to destroy diversity ,although $ could
always claim less than OL1,<<< to defeat diversity.
'<<1)5ong added 1**',d)widely opens class actions to fed cts under min6al
diversity
,' &mount in 5ontroversy 7 must e3ceed OL1,<<<, not counting interest on the claim or costs.
8udge doesn6t '
nd
)guess what $ has claimed unless can be shown with legal certainty
that $ can6t recover that much. St. Paul Mercury
&ctual, eventual recovery irrelevant, although court could deny or impose costs
under 'N A"5 R 1**',b.
Injunctive cases)still have to meet OL1,<<<circuits split
"ome: loss to -
"ome: val to $ if wins
"ome: whichever is lg6er
A00re0tio#
o & single $ may aggregate all claims against same - to meet amount
requirement.
1*
But $ who has aggregated his claim against a - may not join other
-6s for less than jurisdictional amount. R 1*2L.
o Eultiple $s may not aggregate against single or multiple -s, unless they are
enforcing a right or title they have a common and undivided interest in. R
1*2L.
Mave collective rt e.g. property, can6t enforce separately
Eay not aggregate if claims are Cseparate and distinctD
o Jith joint claims, use the total value of that claim
o &t least class rep in class action must satisfy min, can6t just aggregate all the
class members6 claims.
If $ satisfies statutory minimum, compulsory counterclaim ,arises out of the same
transaction or occurrence as the plaintiff6s claim may be heard regardless of
amount. ;.g. OL1,<<1 but counterclaim for O'
$ermissive counterclaim requires independent juris6al basis
C. S$11!e.e#t! J$rsi%ictio#
'N A"5 R 1*2L,a allows new parties and?or new claims to be added to a basic controversy that
by itself satisfies federal subject matter jurisdiction.
o related to fed claim to e3t that $s would ordinarily be e3pected to try them all in 1
proceeding.
;fficiency)Interests of judicial econ., convenience, and fairness support e3ercise of
supplemental juris.
Mist6al conte3t
o &ncillary juris) fed ct6s pwr to hear claim by -, 0$ -s, interveners, etc. ,such as
ctrclaims and claims against 0$s arising out of same facts ,same
occurrence?transaction as those being relied on in $6s claim against -.
o $endent juris)fed ct6s pwr to hear claim based on state law that were closely related,
involved same facts as fed claim being asserted by $ in the same case
o Gi22s case)sued Anited Eine J4er6s Anion under fed law, joined another claim on 0(
state conspiracy law
".5. upheld pwr to hear state claim b?c derived F Csame nucleus of operative
fact.D
&rt. III of 5on e3tended fed pwr that far b?c arose F same controversy under
&rt. III
o line)drawing prob, acads muttered about lac4 of statutory basis for this
".5. v. restrictive of interpretation of R 1**', but still ma4ing up huge new
doctrines to allow fed juris
1/
o 3inley case)plane crashvic Er. Finley thought private power co. and fed air
controllers responssued A" under Fed 0ort 5laims &ct, power co. under theory of
pendent juris
Anli4e Gi22s, pends a - as well as theory
".5.: in absence of statute, couldn6t entertain this type of lawsuit
o cts6 inventions of doctrine at ris45ong passed R 1*2L
e3plicitly authori9ed what had been pendent and ancillary juris
changed name to supp juris
codified standard of Csame case or controversy under &rt. IIID
R 1*2L,a supplemental jurisdiction includes claims that involve the joinder of
additional parties, overruling 3inley
but in ,b, ltd attaching related parties 7 only when founded only on diversity juris
*)part analysis under R 1*2L:
1. 5on6al basis?common nucleus of facts ,Gi22sIbased on the same facts as fed law claim
and is so related that it is essentially the same case?controversy.
'. "tatute grants authority
*. If "E8 based on 1**', must loo4 to see if R 1*2L,b a prob
"upplemental jurisdiction is granted at the court6s discretion.
5ourts may decline if ,1 claim raises a new or comple3 issue of state lawH
,' claim substantially predominated over original claimH
,* district has dismissed all claims over which it had orig jurisH or
,/ other e3ceptional circumstances. R 1*2L,c.
1*2L,d)fed saving statute)e3tends "o: after juris6al dismissal, only lasts *< daysfed statute
e3tends state "o:
o A.". ".5. has held *<)day e3tension uncon6al as applied to a claim against a state
agency that has not consented to such a provo
$ersonal jurisdiction must still be independently satisfied ,however, remember 1<< mile bulge
rule under F!5$ /,4,1,b. Qenue is not an issue.
Federal Suestion 5ases 7 "upplemental jurisdiction may apply to closely related ,pendant
state)law claims that involve the parties. 'N A"5 R 1*2L also allows additional parties to the
state law claim to be brought into the case.
-iversity 5ases 7 "upplemental jurisdiction may apply to these diversity cases:
,a !ule 1*,a compulsory counterclaims ,including counter)counter claims, even if against
third party -sH
,b !ule 1*,h joinder of additional parties to compulsory counterclaimsH
,c !ule 1*,g cross claimsH
11
,d !ule 1/ impleader of third party - for claims by and against third party -s, e3cept claims
by original party against third party -sH
0he following diversity cases are not covered by supplemental jurisdiction:
,a 5laims by $ against third party -H
,b !ule 19,a compulsory joinderH
,c !ule '< permissive joinderH
,d !ule '/ interventionH
,e !ule 1*,b permissive counterclaimsH
,f !ule 1N joinder of claimsH
D. Re.o9!
Ander BC U.S.C. ;,((,, a defendant can move to remove the action to federal court if there is a
federal question in the plaintiff6s well)pleaded complaint or if there is diversity of citi9enship.
!emoval is possible only if the plaintiff could have brought the action in federal court in the
first place.
-iversity 5ases 7 &ction may only be removed if
,1 no - is a citi9en of the state in which action is pending ,under R1//1,bH
,' all of the defendants properly served join in removalH and
,* removal is sought within *< days after case became removable and no later than 1 year after
commencement after action ,unless fraud on behalf of T
Federal Suestion 5ases 7 &ction may only be removed if
,1 all of the defendants join in the petition for the removal ,unless it is separate and
independent from other, non)removed claimsH and
,' removal is sought within *< days after the case became removable ,R 1//2,b.
!easons for removal include potential bias against litigant, logistical concerns, procedural
differences between state and federal court, and the differing nature of federal and state jury
pools.
!emove only to the federal district embracing the state court where the claim was filed.
Ander R 1//1,f, the district ct is not precluded from hearing and deciding the case even tho the
state ct did not have juris over the copyright claim.
) 5ase never could have been brought in state ct in 1
st
place
IV. THE ERIE DOCTRINE
A. Histor' !e%i#0 $1 to Erie
!ules of -ecision &ct ,'N A"5 R 121', based on "upremacy 5lause of 5onstitution, states
that
12
Jhere supplemental
jurisdiction inconsistent with R
1**' ,diversity jurisdiction
,a federal constitution, treaties, and statutes enacted by 5ongress always ta4e precedent, where
relevant, over all state provisions ,in federal and state court proceedingsH and
,b in the absence of federal constitutional or statutory provision on point, federal courts must
follow state constitutions and statutes.
S'ift v. 4yson held that under !-&, federal courts have to apply only state statutory laws and
laws of local usage, not state common lawH federal courts are free to apply federal common law.
o Fed cts e3ercising diversity of citi9enship jurisdiction need not, in matters of general
jurisprudence, apply the highest state ct6s judge)made law but are free to e3ercise an
independent jmt as to what the common law of the state is or should be.
o prevented the uniformity in law that it was supposed to promote, created confusion as to
the difference between general law and local law, promoted discrimination that diversity
jurisdiction was conceived to prevent, and made equal protection impossible.
Erie Doctri#e 7 0here is no federal general common law. Federal courts must apply the Claw
of several states, e3cept where the 5onstitution or = acts of 5ongress otherwise require.D 0o
ascertain state law, in the absence of a statute, the federal court loo4s ,a decision of highest
court in the stateH ,b intermediate court decisionsH ,c prior diversity cases, other authorities,
etc. to determine what would highest state court decide.
o 5ong has no power to declare substantive rules of common law for commercial or tort
law to apply in a state. (othing in the 5on gives such a power to the fed cts.
:aw to be Followed in -iversity 5ases
&e"ore ,2>C A"ter ,2>C
S$@st#ti9e L/ Federal ,S'ift "tate ,0rie
Proce%$re "tate ,5onformity &ct >for ClawD
cases@
Federal ,F!5$
&. Erie Ds I..e%ite Pro0e#'
Guaranty 4rust Co. v. 5ork ,19/1 ,p. '*': "5+0A" held that a federal court e3ercising
diversity jurisdiction must apply the state statute of limitations to an action in equity.
o &pplied 0rie rule to doctrine of laches ,li4e "o:, but not a statute)unwritten, equitable
doctrine, gen6ly regarded as procedural
o 0he 5ourt also crafted the C+utcome)-eterminative 0estD which instructs the district
court to apply state law to any issue that could affect the result of the action.
(o longer applies
o 0he 5ourt noted that the essence of the 0rie decision was to insure that in all cases
where a federal court was e3ercising diversity jurisdiction, the outcome would be
substantially the same, so far as legal rules determine the outcome of litigation.
Jhether affects manner and means of recovery vs. result of litigation
1L
o But contradicted himself by saying fed ct can give equitable remedy even if state ct
can6t
-agan v. Merchants 4ransfer 1 Warehouse Co.: state law, rather than fed., det when an action
CcommencedD for purposes of satisfying state "o:s
Cohen v. ,enefical In$us. oan Corp.: fed diversity ct must apply state statute allowing corp. to
req $ to post bond for e3penses if $ lost
,ernhar$t v. Polygraphic Co. of .merica: state law concerning enforceability of arbitration
agreements should control in diversity action
C. A Eho/ toF "or # Erie #!'sis "or co#"!ict @t/# stte #% "e% 1roce%$re-
C O N & ( I C T + E T , E E N
S T A T E A N D & E D E R A (
S T A T U T E , C O ) ) O N
( A , , O R P R O C E D U R E
P r o c e ) u r a l
# a t t e r
N o a p p a r e n t c o n f l i c t
b e t $ e e n f e ) e r a l
a n ) s t a t e p r a c t i c e 1
A p p l y s $ a $ e p r a $ i e
A p p a r e n t c o n f l i c t
b e t $ e e n f e ) e r a l
a n ) s t a t e
p r a c t i c e
R e a l c o n f l i c t
e ? s t s . D e t e r m i n e
b a s i s f o r f e ) e r a l
p r a c t i c e
N o r e a l c o n f l i c t o n c e e ? a m i n e ) @ @
r u l e s c a n e ? i s t s i ) e b y s i ) e
' W a l " e r (
A p p l y s $ a $ e p r a $ i e
S t a t u t o r y * e ) e r a l R u l e # H a n n a h $ # e r e P r a c t i c e
S t a t u t e & a l i )
u n ) e r
C o n s t i t u t i o n 1
A p p l y s $ a $ ! $ e
S t a t u t e n o t
& a l i ) 1
A p p l y s $ a $ e
p r a $ i e
R u l e & a l i ) u n ) e r
R 8 A a n )
C o n s t i t u t i o n 1
A p p l y r ! l e
R u l e & i o l a t e s
s u b s t a n t i a l r i ! h t
a n ) i s n o t & a l i ) 1
A p p l y s $ a $ e
p r a $ i e
A p p l y
H a n n a h t e s t
A p p l y H a n n a h t e s t
a n ) ) o B % r d
i n t e r e s t a n a l y s i s .
S u b s t a n t i & e
# a t t e r
* e ) e r a l s t a t u t e
a p p l i c a b l e 1
A p p l y
- e d e r a l l a w ,
. / U S C 0 1 2 3 .
N o a p p l i c a b l e
f e ) e r a l s t a t u t e
S t a t e s t a t u t e
a p p l i c a b l e 1
A p p l y
s $ a $ e l a w ,
. / U S C 0 1 2 3 .
N o a p p l i c a b l e
s t a t e s t a t u t e 1
A s e r $ a i n a n d
a p p l y s $ a $ e
o m m o n l a w ,
E r i e D o $ r i n e
In cases where there I" an applicable federal rule?statute:
1. -etermine whether or not there is a re! co#"!ict between the federal statute?rule and the state
statute?rule.
a. If there is no conflict, use the state rule?statute. Mowever:
i. ;ven if a federal rule or statute doesn6t e6plicitly conflict with a state rule or
statute, if the federal rule is construed to preempt or $isplace state law, you use
the federal rule. >"upremacy 5lause@.
1. For e3ample, R1/</ may CpreemptD or CdisplaceD a state law allowing clauses in contracts
that mandate the forum in which a potential lawsuit would be litigated.
1N
) .sh'an$er doctrine: decide case narrowly if possible ,analogy: construe narrowly to
avoid conflict w? F!5$
'. (e3t, determine the so$rce of the federal rule. Is it a statute or a rule. 0his is important
because R '<L' +(:G applies to rules. Federal statutes can override R '<L'.
*. If there I" a conflict and the source of the federal rule is a rule, determine whether or not the
rule ""ects s$@st#ti9e ri0hts.
a. "ubstantive rights: Uenerally, any right that affects human behavior in the real world.
b. $rocedural rights: Uenerally, any right that affects a party in the courtroom, only
activated once become a party to a lawsuit.
c. If the federal rule affects substantive rights, it may run afoul of R '<L', in which case
you should apply state law.
i. In order to determine whether or not the federal rule?statute runs afoul of R '<L',
do the following things:
1. :oo4 at and analy9e the te7t of the rule.
'. -etermine the 1$r1ose of the federal rule.
*. &s4 yourself: -oes this rule infringe on any substantive rights. If so, apply state law?rule.
If not, continue with analysis.
/. If the federal rule?statute only affects 1roce%$r! ri0hts, be sure that it is constitutional.
a. If the federal rule?statute, is (+0 constitutional, apply state law.
b. If the federal rule?statute is procedural, constitutional and ,in the case of a federal rule
if it is valid under R '<L', then Hanna dictates that you use the federal rule?statute.
In cases where there is (+0 an applicable federal rule?statute ,just custom or practice:
1. In ,yr$ jurisdictions, determine:
,1 Jhether the state law?rule is C@o$#% $1 /ith ri0hts #% o@!i0tio#s o" the 1rties.D
a. 0o do this, loo4 at how much a state would care if the rule or statute was superseded.
:oo4 at the policies behind the rule?statute.
b. If the state rule is Cbound up with rights and obligations of the parties,D this would be
one factor in ma4ing a determination to apply the state rule. "tate law governs because
some procedural practices are so much a part of substantive law that they should be
followed.
,' ;ven if it isn6t part of the substantive rights and obligations, would its application determine
the outcome of the case.
,* If so, are there Caffirmative countervailingD considerations of federal judicial administration
present. 0his is a balancing test between state and federal issues.
'. If the state law?rule is merely procedural, then do one of two things: ,circuits are split.
a. ,yr$ analysis:
i. -o an interest analysis by balancing the interests of the state in applying its law
with the interests of the federal courts in applying their custom?practiceH and
ii. -etermine whether or not the federal practice would lead to forum)shopping or
inequitable administration of the laws.
b. Hanna footnote 9:
i. -etermine +(:G whether or not the federal practice would lead to ,a "or$.4
sho11i#0 or )@+ i#eG$it@!e %.i#istrtio# o" the !/s )%iscri.+.
7. If either of these is li4ely, the state law rather than the federal practice
should prevail.
19
8. CJhether the application of the rule would ma4e so important a
difference to the character or result of the litigation that failure to enforce
it would unfairly discriminate against citi9ens of the forum state.D Hanna
E7.1!es-
,a 8udge?jury allocation: follow federal practice. ,yr$.
,b "tatute of limitations: follow state practice. -agan. Guaranty 4rust.
,c "ervice of process: follow federal practice. Hanna.
Jhere we are now:
1. under Hanna)follow F!5$ unless violates !ules ;nabling &ct or violates 5on.
'. if fed rule intended to preempt?displace state rule, also apply F!5$, even if not dir6ly in
conflict ,Walker
*. will always be arguments about it
/. before come to concl that F!5$ does collide, ma4e sure there is a direct collision ,Walker
1. if no fed rule, loo4 to ints as in ,yr$ or measure forum)shopping and discrim ,Hanna.
THE PROCESS OF LITIGATION
V. REMEDIES
normally, monetary damages are the remedy, and only when they are inadequate will equitable
remedies be given
A. Pre!i.i#r' Re.e%ies
1. "ei9ure of $roperty >F!5$ 2/@ ) $ against - to ensure that assets will be there to satisfy
eventual judgment.
) Uarnishment of wages, arrest, or attachment of property, etc..
'. $reliminary Injunction >F!5$ 21,b@ 7 "tandard%/ things have to show ,Schiavo case:
1. "ubstantial li4elihood of success on the merits ,reqs showing only li4ely?probable,
rather than certain success.
'. Irreparable harm suffered unless injunction issued
*. 0hreatened injury outweighs any damage injunction could cause opposing party
/. Injunction wouldn6t be adverse to interests of the public
) Jhere Cbalance of the equities weighs heavily in favor of grantingD injunction $s need
only show a substantial case on the merits.
) !equires $ to post a security?bond to cover possible damages and loss to -. Eay be
appealed under R 1'9',a,1. ;nforced through contempt proceedings.
) File complaint b?c under !. 1 and *, fed ct can only hear civil action, which has to be
commenced by filing complaint, # summons # Eotion for prelim injunction # affidavit #
Eemorandum of law ,brief, cites affidavit)tell ct why has pwr and how to e3ercise it # bond
,offer that if wrongly gets prelim injunction and costs - money, $ will pay money to - for any
'<
costs wrongfully incurred. "erve all these things on other side, accompanied w? certificate of
service to other side ,!. 1,d.
*. 0emporary !estraining +rder >F!5$ 21,b@ ) $ against - when ,a Cimmediate and
irreparable injury, loss, or damage will result to the appellant before the adverse party can
be heard in oppositionDH and requiring ,b certification to the court in writing that the
efforts, if any, which have been made to give notice and reasons why notice should not be
required. 5an be granted without a hearing and sometimes even without notice.
) protects against irreparable harm and preserves status quo til a meaningful decision on
the merits can be made.
) "tandard%/ things have to show ,Schiavo case:
1. "ubstantial li4elihood of success on the merits ,reqs showing only li4ely?probable, rather than
certain success.
'. Irreparable harm suffered unless injunction issues
*. 0hreatened injury outweighs any damage injunction could cause opposing party
/. Injunction wouldn6t be adverse to ints of the pub
) Jhere Cbalance of the equities weighs heavily in favor of grantingD injunction $s need
only show a substantial case on the merits.
) standard%before opposing party6s atty can be heard in opposition
) ;3pires in 1< days if not renewed and eventually requires a preliminary or permanent
injunction.
) !equires $ to post a security to cover possible damages and loss to -.
) Eay be appealed under R 1'9',a,1.
) ;nforced through contempt proceedings.
/. "anctions for misconduct during litigation
&. Fi#! Re.e%ies
1. 5ompensatory -amages)Eonetary award to restore the injured party, as nearly as possible,
to the position he would have been in had it not been for the wrong of the other party.
o Includes ,a restoration of property ,at fair mar4et value?replacement costH ,b loss of
use from time of loss to prudent replacementH ,c medical e3pensesH ,d loss
wages?earning capacityH ,e pain and suffering.
o Eerely a judicial statement that - owes $ money. 8udgment must be e3ecuted.
"ubstantial and procedural limitations may limit this action. - may attempt to hide
assets, although a fraudulent conveyance act may assist $ in preventing this. $ may also
call for a court e3amination of -6s assets. $ may also have -6s employer garnish their
wages.
o In calc6ing pain and suffering:
&llowed: instruction to have sum for pain every 1< min times '< years, no
standard, $ describe on stand how much pain she6s in, e3pert testimony about
what other ppl similarly suffered
(ot allowed: pay unto $ what you would have paid unto you to have that pain,
telling what6s awarded in similar cases)not allowed
'1
'. $unitive -amages) requires malice?willful?wanton conduct, may intro testimony as to -6s
net worth.
o $unitive damages aimed at deterrence and retribution, same purposes as crim penalties
but -s in civil cases don6t have protections of -s in crim cases.
o &ward not reasonable?proportionate to wrong may be arbitrary deprivation of prop of -
in violat of -ue $rocess 5l.
o "ingle)digit multipliers more li4ely to comport w? due process, while still achieving
state6s goals of deterrence and retribution than much higher ratios, but there are no rigid
benchmar4s. Jealth of - can6t justify an otherwise uncon punitive damages award.
,State 3arm Mut. .uto. Ins. Co. v. Camp2ell
o ,MW of North .merica v. Gore: cts reviewing punitive damages should consider *
guideposts: ,1 degree of reprehensibility of -6s misconductH
,' disparity btwn actual?potential harm and punitive damages awardH and
,* diff btwn punitive damages awarded by jury and civil penalties authori9ed?imposed
in comparable cases.
*. $ermanent Injunction?+ther ;quitable !elief
)replevin)req sheriff?marshall return an item to its +.
)injunctions enforced through contempt proceedings.
)constructive trust, rescission?cancellation?reformation of K
)ejectment
)writ of mandamus)ct orders lower ct?pub official to perform act req6d by law ,also
legal
/. "tatutory !emedies
1. -eclaratory 8mts
2. 5osts)law)imposed e3penditures
L. 5ounsel fees sometimes: under fee)shifting statutes which provide an incentive to plaintiffs
to file suit, an incentive to lawyers to represent those plaintiffs, and a deterrent to defendants at ris4 of
such suits ,act as private attys)gen.
o &merican !ule states that each side pays their own fees normally.
o Ne'man v. Pickie Clark 0nterprises)- won in civ rts case, but ".5.: should award if
blac4 $ wins but not if white - wins
o 192N) Fees &ct)can win atty6s fees in any R 19N* action ,action against state gov6t?state
instrumentality for violating fed rt
VI. PLEADING
A. &rie" histD! o9er9ie/
8udicial pwr shifted F Baron6s 5ts to King6s 5ts ,consolidated as ;ng emerged F medieval times
5ommon law: ma4e ur declaration correspond to an e3isting writIe3actly
o Jrit)for ea type of suit, had its own proced6al system
o trap for $s, Barons jealously guarded their pwr, ltd Kings 5ts to only those case v
precisely covered by writs b?c got fees for every case filed in their manorial cts, vigorously
opposed any e3pansion
''
o $ had to 4now all facts and give orig theory of case at outset b?c no discovery?amend 7 v
rigid system of law
o -s could deny?file demurrer ,even if everything in complaint true, still doesn6t have
caseprecursor to motion to dismiss for failure to state claim on which relief can be
granted
;quity completely diff system of proced
o Innovations)Interventions, related cases consolidated, class actions, counterclaims,
rudimentary discovery
o -ecided w?o jury
5ollapsed into 1 system)pleading reformed, req6d that parties plead the facts of the c?a, not just
mere concls. 0he Field 5ode ,-avid -udley Field)still method of pleading used in some big
states incl (G and 5& ,write very long, detailed complaints, much more than req under F!5$
o $lead Cthe facts constituting a c?aD
o "teven 8. Field)got Field 5ode adopted in 5& ,his bro6s idea
o $robs: In complaint, $ had to choose only 1 c?a. 5ts threw out complaints whose facts
too gen and too specific ,evidentiary rather than ultimate facts, b?c were read to
jurymight prejudice, cont even tho that practice ended.
19*N)adoption of F!5$, many states adopted similar ,5harles ;. 5lar4
o !. N: must provide Ca short and plain statement of the claimD 7 not facts, not Ca c?aD that
had probs under Field 5ode
in fed ct)also reqs statement about "E juris and request for relief
o -on6t req v much in a complaint now, use discovery to sort thru later
o "ometimes thrown out b?c missing something so imp ,,ri$ges, or sometimes too much
o Iqbal: o#!' c!i.s tht stte 1!$si@!e c!i. o" re!ie" .' @e 0r#te%
Co.1!i#t8 Res1o#ses8 A.e#%.e#ts
!esponses)client sends u complaintcan:
,1 file motion
) 1',a,/)see whether grants?denies motion to dismissIif granted, doesn6t need to ans, if
denied has 1/ days to ans after notified of ct6s decision
,' file ans
,* motion for more definite statement
,/ get more time by as4ing for $6s and then judge6s consent ,go along w? to curry favor w? judge
and b?c might need a favor F other sidenormal to consent to delay
,1 default
,2 start negotiation on merits for settlement before ans filed
F!5$ $leading ?
Eotion
Jho and Jhen Jhat
* 5omplaint $ to 5ourt
Note- 5ourt permission not
required.
5omplaint commences action and is
filed by $. *.
N Co.1!i#t
i# "e% ct
$ to 5ourt ;lements: ,a 5aptionH ,b
8urisdictionH ,c "tatement of the
'*
0o9er#e% @'
FRCP C
claimH ,d !elief. N,a.
$laintiff must ma4e a short and plain
statement showing that they are
entitled to relief. N,a,'.
:egal theory need not be stated. N,a.
&lternative theories can be pleaded.
N,e.
Eust incl statement of juris ,amt in
controversy, where reside in diversity
claim
11,a "ignature ;very pleading, motion, paper
shall be signed by at least one
attorney or party member and state
signer6s address and telephone
number.
;3cept when specified by rule or
statute, pleadings do not need to be
verified or accompanied by
affidavit.
Ansigned paper shall be stric4en
unless omission of the signature is
corrected promptly after being called
to the attention of the attorney or
party.
11,b !eps to
5ourt
"ignature, filing, submitting or
advocating a pleading, motion, or
other paper certifies that to the
best of the person6s 4nowledge,
information and belief, formed
after a reasonable inquire, that:
,a it is not presented for improper
purpose, such as harassment,
delay, or needless increase in
litigation costH
,b it is warranted by e3isting law
or by non)frivolous argument for
the e3tension, modification, or
reversal of e3isting law or
establishment of new lawH
,c allegations?contentions have
evidentiary support or, if
identified, are li4ely to have
evidentiary support after a
reasonable opportunity for
discoveryH
,d denials are warranted on
evidence or are reasonably based
on a lac4 of information or belief.
Frivolous lawsuits disallowed. 11.
!ule 11 requires lawyers to thin4,
investigate, and research carefully
before bringing a suit or
conducting litigation.
!ule 11 is only violated if the
signing of the document was
objectively unreasonable when it
was signed.
!ule 11 sanctions e3ist primarily
to deter improper conduct and
should be reserved for e3ceptional
circumstances where the claim is
obviously unmeritorious or
frivolous ,substantive not
procedural.
v little case law under !. 11 as to
how many facts nec, so fact)
specific that provides almost no
guidance
Initiated by ,a service of motion
which shall not be filed with court
until '1 days after serviceH ,b
court sua sponte. 11,c,1.5ourt
cannot sua sponte award money
'/
R$!e ,, )c+- Ct MAH i.1ose
s#ctio#s8 #ot SHALL8 0i#st
!/'er8 #ot c!ie#t
sanctions unless court issues order
to show cause before a voluntary
dismissal or settlement.
9 $articularity $ or - when ma4ing a claim that
includes:
denial of any party6s legal
capacity, 9,aH
circumstances constituting any
fraud or mista4e, 9,bH
occurrence or denial of
performance of a condition
precedent, 9,dH
official documents or acts on
which pleader plans to rely, 9,dH
judgments on which pleader plans
to rely, 9,eH
material facts of time and place,
9,fH
special damage, 9,g.
Eust plead with particularity ,not
merely a short and plain statement.
/ "ervice of
5omplaint
$ on - either before?within 1'<
days of complaint filing. /,m.
For complaint and summons.
N &nswer - to 5ourt within '1 days after
service of complaint, 1',a, unless:
F!5$ 1' motion filed, then 1/
days after court denies, 1',a,/
,&H Jaiver of formal service, then
2< days ,9< days if foreigner,
1',a,1,&,iiH or ,/ 5omplaint
amended, then 1/ days after
service of amended pleading or
time remaining on original '1
days, whichever is later 11,a,*.
Note- Jaiver of formal service
does not mean waiver of
jurisdiction or venue.
In an answer, - asserts in short and
plain terms his defenses to each claim
asserted and admits or denies each
count of $6s complaint. N,b.
&verments in a complaint not denied
are admitted. N,d. 0ypes of denial
include: ,a generalH ,b specificH ,c
qualifiedH ,d denial of 4nowledge or
informationH ,e denial based on
information and belief.
) N,b)for dfs?denials, go allegation by
allegation, not para by para.
N,c &nswer $arty shall state in short and plain
terms dfs to ea claim asserted and
admit?deny averments of other
party. Jhen intends in good faith
to deny only part?qualification of
averment, shall specify so much of
it as true and material and deny
only remainder.
) - should ma4e clear just what is
denying and what is admitting.
4 ;quitable estoppel doctrine: - may
be estopped if ma4es inaccurate
statement and statements in record,
which it 4new or could6ve 4nown
were inaccurate, that will have
'1
&ffirmative defenses must be
included in defenses. N,c.
deprived $ of rt of action. ,9ielinski v.
Phila$elphia Piers
) ;3. assumption of ris4, contributory
negligence or res judicata, duress or
fraud.
) 0est of whether an affirmative df:
whether - intends to rest df on some
fact not included in allegations
necessary to support $6s case.
&ffirmative df destroys claim,
whereas denial avoids claim.
) If - has df in nature of a confession
of facts of $6s petition but states that
$6s theory of liability even tho
sustained by evidence doesn6t apply
to it b?c additional facts place - in
position to avoid any legal respons for
its action, then such df must be set
forth in ans. ,ayman v. South'estern
,ell 4elephone Co.
) &ffirmative dfs not pleaded are
wv6ed ,maybe allow to amend, but
judge might disallow if $ has
detrimentally relied on it
) some cts: by pleading as affirmative
df, - has ass6ed burden of proof on
the issue, even tho wouldn6t have had
if had pleaded as denial
L,a !eply $ to 5ourt and - ,1 within '<
days after service of counterclaim,
1',aH ,' with court consent, L,aH
or ,/ &nswer w? counterclaim
amended, then 1< days or time
remaining on original '< days,
11,a.
If the answer contains a counterclaim,
$ must reply. L,a.
11,a &mendment ,1 &mendment as of right?course:
,a 5omplaint may be amended
once at any time before the answer
is served >motions do not matter@H
,b &nswer may be amended once
within '< days after - has served
it >if answer contains
Jhen a pleading has been amended,
the amendment will relate bac4 to the
date of the original pleading if the
claim or defenses asserted in the
amended pleading Carose out of the
conduct, transaction or occurrence set
for or attempted to be set forth in the
'2
counterclaim, the answer may be
amended until time $ has served
reply@, 11,aH
,' &mendment by leave: C"hall
be freely given when justice so
requires.D 11,a. :eave normally
given unless amendment causes
actual prejudice to other party:
,a must be no bad faith on
amender6s part
,b must not prejudice other side
too much
,court permission required)more
li4ely to grant if sooner

,* 5onsent: $arty may amend
with consent of other party, 11,aH
,/ 5onform to the ;vidence: If
new evidence is presented during
trial with e3press or implied
consent ,failure to obj to evidence
intro6ed at trial of parties, they
will be treated as if raised in
pleadings, which will be
considered amended to conform to
the new evidence. 11,b
original pleading.D 11,c,'.
) when amend to pleading adds new
claim after "o:, can be treated
that goes bac4 to when
complaint orig6ly filed ,"o:
satisfied
) even if claim?legal theory entirely
diff ,,oner2 v. -ichar$ +. Caron
3oun$ation
) - not unduly prejudiced b?c pd for
discovery not yet e3pired,
depositions of personnel not yet
ta4en, e3pert witness info not
yet e3changed and parties have
consented to trial before the
undersigned.
11,c,*)Jhen an amendment
changes the party against whom the
claim is asserted, the amendment
relates bac4 only if ,1 the amendment
covers the Csame transaction or
occurrenceH ,' the party to be brought
in by amendment received actual
notice within 1'< days of original
serviceH ,* before the end of the 1'<
day service period, the new party new
or should have 4nown that Cbut for a
mista4e concerning the identity of the
proper party, the action would have
been brought against the >new@ party.D
Note- "tatute of limitations is an
affirmative defense.
Motio#s
A0i#st
P!e%i#0s
Note- !ule N* allows district
courts to develop local rules that
may alter motions and pleadings.
Note- If court denies
motion?postpones its disposition until
trial, the responsive pleading must be
served within 1/ days after notice of
the court6s action 1',a,/,&H or ,B.
1',b,1 :ac4 of
jurisdiction
over subject
matter
&nytime, even on appeal. 1',h,*
'L
1',b,' :ac4 of
jurisdiction
over the
person
-isfavored four: Jaived if not
raised by answer or motion,
whichever is first. &mendment of
answer to include defense allowed
under 11,a as a matter of course if
no motion made. 1',h,1
1',b,* Improper
venue
1',b,/ Insufficiency
of process
&sserts that te3t of summons is
insufficient
1',b,1 Insufficiency
of service of
process
&sserts that means of summons
insufficient.
1',b,2 Failure to
state a claim
upon which
relief may be
granted
Eay be raised anytime before trial
as a motion ,unless prior motion or
answer filed, answer, motion for
judgment on the pleadings, or at
the trial on its merits. 1',g, 1',h
,'
&sserts that on facts pleaded by $, no
recovery is possible under any legal
theory. +nly facts have to be assumed
trueIfacts that turn on interpretation
of law are not assumed.
1',b,L Failure to
join an
indispensable
party
1',e Eotion for
more definite
statement
should be made before responsive
pleading
&sserts that complaint is so Cvague or
ambiguous that the - cannot
reasonably be required to frame a
responsive pleadingD
1',f Eotion to
stri4e
&sserts that complaint includes
Credundant, immaterial, impertinent
or scandalousD material that should be
stric4en.
4 R$!e ,B)0+- Co#so!i%tio# o" De"e#ses i# Motio# 5 -efendant will consolidate defenses in his
initial motion if he chooses to ma4e a motion
) Ander !ule 1',d, there will be preliminary hearings on !. 1',b defense and the court will ma4e a
determination on it before trial, unless the court orders that the hearing and determination thereof be
deferred until the trial.
) may be resolved V pretrial conf., if not, not resolved til trial
) R$!e ,B)c+- Motio# "or J$%0.e#t o# the P!e%i#0s 5 &fter the pleadings are closed, motion asserts
that upon those pleadings the moving party is entitled to judgment in his favor on a particular claim.
Based only on issues of law, not facts.
) Ase of this challenge typically is limited to situations in which the facts as shown in the
complaint and answer reveal an affirmative defense absolutely barring plaintiff6s claim, such as the
statute of limitations.
) Eay also be used when the sole defense relied upon by the defendant in the answer is
insufficient as a matter of law.
'N
Re1!'i#0 to %e"e#ses
R$!e ?)+- P!e%i#0s 5 If the answer pleading is confined to denials or affirmative defenses,
the plaintiff may not reply.
R$!e C)%+- E""ect o" Fi!$re to De#' 5 &verments in a pleading to which a response is
required are admitted when not denied in that responsive pleading.
VII. JOINDER
F!5$ Jho and Jhen Jhat "upp
5laim $ against -.
&ny 0$ - against $ ,if
arising out of same
transaction or occurrence
that is subject of $6s claim
against -
$ against 0$ - ,if arising
out of same transaction or
occurrence as long as
jurisdictional requirements
independently met.
File a claim
Note- (o court permission required.
Note- Failure to join claims under 1N,a
may result in claim preclusion.
(o
1N,a 8oinder of
5laims
&ny $ against any - that $
has filed against
&ny - against any $ that
- has counterclaimed
against
&ny 0$ - against any $ or
- or 0$ -' that 0$ -1 has
filed against
Eay ma4e any other claim against that
party
,a Carising out of the same transaction
or occurrenceD or if
,b independent subject matter
jurisdiction e3ists or
,c when aggregating for amount in
controversy requirement in diversity
cases.
Note- (o court permission required.
Eay separate claims for convenience.
/',b. (o limit to W. 1N,a.
(o
'9
1*,b $ermissive
5ounterclaim
&ny - against any $ that
has filed against -
&ny $ against - who has
counterclaimed against $
&ny $ against 0$- who
has filed against $
&ny 0$- against -
&ny 0$- against $ who
filed against 0$-
&ny 0$- against 0$-'
who has filed against 0$-
(ew parties can be
brought into suit by !ule
19 and '<. 1*,h
Eay bring Cany claim = not arising out
of the transaction or occurrence that is
the subject matter of the opposing
party6s claimD that independently
satisfies subject matter jurisdiction.
(ote: "tatute of limitations may time
bar
Note- (o court permission required.
(o
1*,a 5ompulsory
5ounterclaim
&ny - against any $ that
has filed against -
&ny $ against - who has
counterclaimed against $
&ny $ against 0$ - who
has filed against $
&ny 0$ - against -
&ny 0$ - against $ who
has filed against 0$ -
&ny 0$ - against 0$ -'
who has filed against 0$ -
(ew parties can be
brought into suit. 1*,h.
Eust file any claims that arise Cout of
the transaction or occurrence that is the
subject matter of the opposing party6s
claimD even if no independent subject
matter jurisdiction e3ists.
/ tests ,if yes to any, counterclaim
compulsory:
1 &re the issues of fact and law
raised by the claim and ctrclaim
logically the same.
' Jould res judicata bar a
subsequent suit on -6s claim
absent compulsory ctrclaim.
* Jill substantially the same
evidence support?refute $6s claim
as well as -6s ctrclaim.
/ Is there any logical relation btwn
claim and ctrclaim. ,Eost pop.
)Mave to ma4e or are waived.
Note: "tatute of limitations may time
bar.
(o court permission req6d.
Ges
*<
'< $ermissive
8oinder of
$arties
&ny $6s or -6s who share
claims of relief that
,a arise from a single
:transaction* occurrence,
or series of transaction or
occurrencesDH and
,b contain a common
question or la' or fact.
Eultiple $6s may join togetherH or
$6s may ma4e several parties co)-6s to
claim
$urpose of !ule '<,a to promo trial
convenience and e3pedite final det of
disputes, thereby preventing multiple
lawsuits.
Note- 5ourt permission required.
(o
19,a 5ompulsory
8oinder of
(ecessary
$arties
&ny $ or - who
,1,& in their absence,
complete relief cannot be
accorded among those
already partiesH or
,1,B,i who has interest
relating to action and
trying the case without
absentee will either impair
absentee6s interest or
,ii leave one of the parties
subject to multiple or
inconsistent obligations.
Eust be joined if possible. If not, must
see if they are Cindispensable party.D
Note- 5ourt permission required.
8oint tortfeasors not necessary parties.
&dvisory 5ommittee (otes to !. 19,a:
tortfeasor w? usu. Xjoint)and)several
liability6 is merely a permissive party.
,4emple v. Synthes Corp.
)19,a,1,B,i)would injunctive relief
be detrimental to absentee. ,Hel)2urg
!iamon$ Shops v. &alley West !es
Moines Shopping Center
(o
19,b 5ompulsory
8oinder of
Indispensable
$arties
&ny $ or - who is a
Cnecessary partyD and is
indispensable based on
) e3tent of prejudice to
absentee or those already
partiesH
) possibility of framing
judgment so as to mitigate
,lessen?avoid such
prejudiceH
) adequacy of a remedy
that can be granted in
party6s absenceH
) whether $ has adequate
remedy if action
dismissed.
Eust be joined if allowed. 8oinder not
allowed if no personal jurisdiction
>waiverable@, diversity destroyed, or
venue destroyed >waiverable@. If not
allowed, then case must be dismissed.
Note- 5ourt permission required.
) none of absentee6s rts ultimately
determined in suit in which not a party
)person doesn6t become indispensable to
an action to determine rights under a K
simply b?c that person6s rts?obligations
under entirely separate K will be
affected by result of action. ,Hel)2urg
!iamon$ Shops v. &alley West !es
Moines Shopping Center
(o
*1
1/,a Impleader
,0hird $arty
$ractice
&ny - against any third
person liable to him Cfor
all or part of $6s claim
against -.D Includes
indemnifiers ,by
K?common law?statute
and joint tortfeasors
,contribution.
&ny $ counterclaimed
against by - against a 0$
-. 1/,b
&ny 0$ - who has been
impleaded against a third
person liable.
- may assert claim against
any1 not a party to orig
action if that 0$6s liability
is in some way dep upon
outcome of orig action, 0$
liable to - for some?all of
$6s damages ,Price v.
C4,.
Eay Cimplead such a person as a 0$-D.
0$ liability must in some way be
derivative or 'ndary of orig claim
,Price v. C4,
- can6t implead 0$ claimed to be solely
liable to $
)Cit6s him, not meD doesn6t w4
)device for sharing not passing blame
Note- ,a Jithin 1< days of service of
answer without court permission or ,b
with court permission ,leave of court.
Anless lateness?reliance issues, would
allow impleader.
fed district ct will always have "E juris
over a properly impleaded 0$ defendant
b?c impleading a 0$ defendant is an
e3ercise of supp juris, and under R
1*2L,a can only have supp juris over
same case?controversy ,satisfying R
1**1, which applies to joinder, and b?c
R 1*2L,b doesn6t allow for supp juris
over parties joined under !ule 1/ in
diversity cases if e3ercising supp juris
over them would be inconsistent w? R
1**'6s juris6al req6ments. 0hus, R 1**1
and R 1**' are satisfied, so fed cts have
"E juris.
Ges
*'
'/,a Intervention
of !ight
,1 &nyone authori9ed by
statute to intervene.
,' &nyone that
,a claims Cinterest
relating to the property or
transaction that is subject
of actionDH
,b is Cso situated that
disposition may s
1rctic! .tter impair
or impede >their@ ability to
protect that interestDH and
,c shows that this interest
is not Cadequately
represented by e3isting
parties.D
Eay join case as a $ or -
Note- !equires timely application
,probably before end of discovery
) Eost litigation on adequate
representation
) Jright and Eiller: if int similar but
not identical, ordinarily should be
allowed to intervene unless clear that
party will provide adequate rep for
absentee.
) !ule '/,a,' only reqs impairment Cas
a practical matter,D not just strictly legal
consequences li4e res ;u$icata. ;3.
stare $ecisis effect resulting F a case of
1
st
impression ,Natural -esources
!efense Council v. <nite$ States
Nuclear -egulatory Commision
(o
'/,b $ermissive
Intervention
,1 &nyone authori9ed by
statute to intervene
,' &nyone that has claim
or defense involving a
Cquestion of law or fact in
commonD with the
pending action.
Eay join case with leave of court.
Note- !equires court permission.
) ct sh!! co#si%er /hether the
i#ter9e#tio# /i!! $#%$!'
%e!':1re6$%ice the %6$%ictio# o"
the rts o" the ori0 1rties.
) !. '/ entirely permissive, up to party
as to whether to try to intervene ,doesn6t
say must intervene to pro rts
) '/,b jmt rarely overturned
(o
Prties to the !/s$it h9e the @$r%e# o" 6oi#%er o" %%itio#! 1rties /ho .' @e %9erse!'
""ecte% i" the' 1re9i!8 rther th# 1!ci#0 o# 1ote#ti! %%itio#! 1rties %$t' to i#ter9e#e
/he# the' cG$ire *#o/!e%0e o" the !/s$it. ,Martin v. Wilks
o 8oinder under !. 19, rather than 4nowledge of suit and opp to intervene, is the method
by which potential parties are subjected to the juris of the ct and bound by jmt?decree.
o !. 196s provos for joining int parties designed to accommodate sort of comple3ities that
may arise F decree affecting numerous ppl in various ways.
**
C!ss Actio#s4FRCP B>
) Basic purposes served by class action suits:
,1 to promo judicial econ and efficiency by obviating need for multiple adjudications of same issues,
,' to afford aggrieved persons remedy if not econ6ly feasible to obtain relief thru multiple indiv
damage actions.
(a) Prerequisites to a Class Action.
One or more members of a class may sue or be sued as representative parties on behalf of all
only if (1) the class is so numerous that joinder of all members is impracticable [Numerosity],
) $s all over the state, don6t live near ea other, don6t 4now where all they are, other side
has the records
(2) there are questions of la or fact common to the class [!ommonality],
(") the claims or defenses of the representative parties are typical of the claims or
defenses of the class [#ypicality], and
($) the representative parties ill fairly and adequately protect the interests of the class%
(b) Class Actions Maintainable. (a) &'
(1) the prosecution of separate actions by or a(ainst individual members of the class ould
create a ris) of
(*) inconsistent or varyin( adjudications ith respect to individual members of the class
hich ould establish incompatible standards of conduct for the party opposin( the class, or
(+) adjudications ith respect to individual members of the class hich ould as a
practical matter be dispositive of the interests of the other members not parties to the
adjudications or substantially impair or impede their ability to protect their interests, or
(2) the party opposin( the class has acted or refused to act on (rounds (enerally applicable to
the class, thereby ma)in( appropriate final injunctive relief or correspondin( declaratory relief
ith respect to the class as a hole, or
) Eonetary relief does not predominate in ,b,' certifications, unless is incidental to requested
injunctive?declaratory relief ,damages that flow dir6ly F liability to class as a whole on claims forming
basis of injunctive?declaratory relief, should be capable of obj calc.. ,.llison v. Citgo Petroleum
Corp.
- &dvisory 5ommittee (otes on !. '*: class certification doesn6t e3t to cases in which
appropriate final relief relates e3clusively?predominantly to money damages, implying that at least
some form?amt of monetary relief o4. Eonetary relief must be incidental to injunctive relief
) &lmost ever cir.: .o#etr' re!ie" .' @e o@ti#e% i# )@+)B+ c!ss ctio# so !o#0 s
1re%o.i##t re!ie" so$0ht is i#6$#cti9e:%ec!rtor'.
(") the court finds that the questions of la or fact common to the members of the class
predominate over any questions affectin( only individual members, and that a class action is
superior to other available methods for the fair and efficient adjudication of the controversy% #he
matters pertinent to the findin(s include'
(*) the interest of members of the class in individually controllin( the prosecution or
defense of separate actions,
(+) the e.tent and nature of any liti(ation concernin( the controversy already commenced
by or a(ainst members of the class,
(!) the desirability or undesirability of concentratin( the liti(ation of the claims in the
particular forum,
(/) the difficulties li)ely to be encountered in the mana(ement of a class action%
) 5ompulsory ctrclaims under F!5$ 1*,a applies to class certification analysis. ,Heaven v. 4rust Co.
,ank
*/
!epresentative &dequacy)!. '*,a,/
jmt in CclassD ? Crep6iveD suit, to which some members of class are parties, may bind members of
class?those rep6ed who weren6t made parties to it.
0o be so bound, must adequately rep ints of absent parties b?c -ue $rocess
Hans2erry v. ee: "igners?successors who are interested in challenging validity of restrictive
covenant and resisting performance were not of same class as a prior case enforcing the covenant
in sense that interests identical so that any grp who had elected to enforce rts conferred by
agreement could be said to be acting in int of any others who were free to deny its obligation. 0hat
does not afford process to absent parties that due process reqs.
o -s in 1
st
suit not treated as rep6ing others or as foreclosing by their df the rts of others.
(otice)!. '*,c,'
(*) 0or any class certified under 1ule 2"(b)(1) or (2), the court may direct appropriate notice to
the class%
- doesn2t req notice, permits ct to order notice (rare)
- much loer req2ment, cheaper
- 3hy don2t you need notice under (b)(2)4 +ecause it really doesn2t matter if the people
)ne about it or not, injunction ill happen anyay for all
(+) 0or any class certified under 1ule 2"(b)("), the court must direct to class members the best
notice practicable under the circumstances, includin( individual notice to all members ho can be
identified throu(h reasonable effort%
) Forum state may e3ercise juris over claim of absent class action $ even tho that $ may not have
minimum contacts w? forum that would support $8 over a -. $ must have notice # opp to particip. &
fully)descriptive notice sent to ea class member by best practicable means, w? e3planation of rt to Copt
outD satisfies due process. -ue $rocess reqs that named $ at all times adequately rep ints of absent
class members ,req6d by !ule, judicial control of action, notice. ,Phillips Petroleum v. Shutts
) Burdens placed by state on absent class action $ not of same order?magnitude as those on
absent -Iabsent $ class members don6t need to hire counsel?appear, almost never subj to ctrclaims?Y)
claims?liability for fees?costs?coercive or punitive damages?remedies, adverse jmt won6t bind absent $
to damages, although valid adverse jmt may e3tinguish any of $6s claim which was litigated. -ue
$rocess 5l needn6t and doesn6t afford class action $ as much pro F state)ct juris.
) $s not haled anywhere to defend selves on pain of default jmt.
5lass &ctions in -iversity 5ases
only citi9enship of named parties satisfies
Sny$er v. Harris: can6t aggregate claims of ea class member to satisfy amt in controversy ,OL14
9ahn v. Int#l Paper Co.: ancillary juris can6t be used for other class members6 claims, precluded by
1**'
5ircuits split, ".5. split /)/ on when 1 named $ satisfying amt in controversy # others joined under
supp juris
o F!5$ N': F!5$s shall not be construed to e3t?limit juris of A.". district cts or the venue of
actions therein.
o but 1*2L gave the power to e3pand juris. ,overrules 9ahn
5lass &ctions Fairness &ct ,'<<1
*1
!epubs pushing, -ems opposed
Eany state cts had respectable class action proceds, gave handsome settlements
&lso, prolif in coupon settlements
o 5orps. didn6t li4e b?c $s6 lawyers search for wrongdoing, get richer so can finance more
lawsuits
Eany -s wanted to remove to more conservative fed cts, but couldn6t b?c amt in controversy
req6ment
(ow, atty6s recovery based on amt of coupons actually redeemed by class members. 5t must
approve proposed coupon settlement after notice and a hearing, may req unredeemed coupons be
given to charitable?gov6tal orgs.
Bars proposed settlement that would result in net loss to class members, unless ct ma4es written
finding that non)monetary benefits to the class members substantially outweigh monetary loss
!eqs notification to appropriate state?fed officials to allow to eval fairness to all class members of
proposed settlement and assess compliance w? regulatory policies
&ggregate e3ceeds O1 mil
Ein6al diversity)only btwn rep6ed $ and a -
o But can decline if many members and imp - F same state ,1?* 7 '?* $ class members and
primary -s
5an remove later than 1 yr, even if in -6s home state
(ot retroactive
VIII. DISCOVERH
F!5$ -evice Jho and Jhen "cope and :imitations
;ach method,
e3cept
e3aminations,
operates
without
intervention of
court.
,(o court
permission
;very request for
discovery, responses,
and objections must
be signed by preparing
lawyer.
Eust certify that
consist w? law, not
unreasonably?unduly
burdensome?e3pensive
F!5$ '2,g.
Ge#er! Sco1e #% !i.ittio#s- $arties Cmay
obtain discovery regarding #' .tter8
),+ #ot 1ri9i!e0e%8
)B+ /hich is re!e9#t to the subject matter
involved in the pending action.D F!5$ '2,b.
!elevant includes information that is not
admissible but may still ,a serve as a lead to
admissible evidenceH or ,b relates to the identity
or whereabouts of any witness thought to have
discoverable information.
F!5$ !ule '2,b,': discovery may be limited if
5t determines that it is unreasonably cumulative or
duplicative or that Cthe burden or e3pense of the
proposed discovery outweighs its li4ely benefit...D
*2
'2,a
,1
&utomatic
-isclosure
Note- "ome
courts have
Copted outD of
automatic
disclosure.
& party, even w?o a
request from the
opposing party.
$arties meet no later
than 1/ days before
prescheduling conf,
'2,f. !equires
mandatory disclosure
at this meeting or w?in
1< days after it. '2,a
,1.
Sco1e- ,& (ame, address, and phone number of
witnesses li4ely to have discoverable information
to support its claims or dfsH
,B 5opies or description by category and location
of all documents in party6s possession to support
its claims or dfsH
,5 5omputation of claimed damagesH
,- ins agreementH
,; ;3emptions
) '2,a,',&: also disclose identity of any
potentially testifying e3pert
*< +ral
-eposition
&gainst a party.
&gainst a non)party
through use of a
subpoena. /1,a,1,5.
-eposition must be no
more than 1<< miles
from where non)party
resides, wor4s, or
regularly transacts
business. F!5$ /1,c
,*,a,ii.
Li.ittio#s- ,1 :imited to 1< depositions total,
unless opposing party agrees or court issues order
allowing more. F!5$ *<,a,',aH ,' (o
individual deposed twice without court
authori9ation.
Note- $arty ordering deposition can arrange to
have it recorded. F!5$ *<,b,'. &ny person who
ma4es a statement to a party or party6s lawyer may
obtain a copy of that statement without any special
showing. F!5$ '2,b,*.
*1 -eposition on
Jritten .s
"ame as oral
deposition.
Note- Eainly used for deposing distant non)party
witnesses.
**,a Interrogatory &gainst a party. Li.ittio#s- :imited to '1 questions unless party
agrees or court orders otherwise.
*2 !equest for
&dmission
&gainst a party. Sco1e- & written request for admission of ,1
statements of opinion or factH ,' application of
law to factH or ,c the genuineness of any
documents.
False -enial leads to payment of costs incurred to
prove denial, *L,c,'.
*/ !equest to
$roduce
-ocuments or
Inspect
$roperty
&gainst a party
&gainst non)party:
subpoena duces
tecum.
Sco1e- ,1 $roduction of documents or thingsH or
,' Inspection, photography, or survey of lands
under their control.
*L
*1 $hysical and
Eental
;3amination
&gainst a party.
!equires ,1 a motionH
,' notice to party to
be e3aminedH ,*
showing of good
cause why
e3amination is
neededH and ,/ a
court order.
Sco1e- $hysical or mental condition of the party
must be in controversy.
Note- Eedical report of e3amination is
discoverable by other side. It may also be
requested by person e3amined. Mowever, once the
person e3amined requests this report, all
e3amination reports made of the person are
discoverable.
'2,e -uty to
"upplement
& party who ma4es a
disclosure during
discovery and then
learns that disclosed
information
incomplete? incorrect.
Sco1e- &pplies to ,1 any automatic disclosureH ,'
any disclosure regarding e3pertsH ,* any responses
to an interrogatoryH ,/ any request for productionH
or ,1 any request for admission. $arty must
disclose complete and correct information.
/1 "ubpoena (on)parties 5ommands ea person to whom dir6ed to attend and
give testimony?produce and permit inspection and
copying of designated b4s, docs or tangible things
in possession, custody, or control of that person, or
to permit inspection of premises
Failure to obey maycontempt
!ule '2,a,*: $retrial -isclosures 7 !equires disclosure, shortly before trial, of trial
witnesses and the li4e regarding non)impeachment evidence. Includes trial e3hibits.
R$!e B=)@+)B+- Disco9er' Li.ittio#s 5 0he court may limit discovery if it finds the
discovery sought is unreasonably cumulative or duplicative, the party has had ample
opportunity to obtain the information sought, the burden of e3pense outweighs the li4ely
benefit.
o 5onsider !. '2,b,' factors in tailoring discovery requests, co)op w? other party
,4hompson v. !epartment of Housing an$ <r2an !evelopment
!. '2,b,1)if claim that a doc is privileged?protected as trial prep materials, must describe
doc.
R$!e B=)c+- Protecti9e Or%ers 5 5ourt may ma4e an order to protect a party from
annoyance, embarrassment, oppression or undue e3pense by, for e3ample, sealing discovery
or prohibiting it.
A. Sco1e o" Disco9er'
1. !elevance
Eust be relevant to "E of litigation
In discrim case, other employees6 complaints of discrim may be relevant to est prete3t
,!avis v. Precoat Metals
*N
when reviewing admin agency, only thing relevant is what was relevant to decision
below ,Steffan v. Cheney, citing Chanery
'. $rivilege
P R I V I ( E % E
S t a t e l a $ o f
p r i & i l e ! e o r
* e ) e r a l R u l e s o f
8 & i ) e n c e A ; .
0 o r + P r o ) u c t
I m m u n i t y
Q u a l i f i e ) I m m u n i t y
A b s o l u t e I m m u n i t y
+nly the person who could assert the privilege may resist discovery. Invo4ing privilege
requires an e3press claim describing nature of protection. $rivilege is waived if a party
brings up the issue into play in court.
Uenerally, in diversity cases, state statute?common law of privilege applies. In federal
question cases, F!; 1<1 applies.
;3. $rivilege against self)incrimination, psychotherapist)patient privilege
&. Wor* Pro%$ct
Wor* Pro%$ct I..$#it'- ;3ists for ,a documents ,b prepared in anticipation of litigation
,c by a party or that party6s representative. !epresentative includes attorney, consultant,
insurance, investigators, and anybody wor4ing for those representatives.
o ;3ception to '2,b,*: can discover report itself ,1 that written under circs as
ordinary bi9 and not in prep for litigation +! ,' if can show substantial need for
it and an inability to obtain equivalent materials Cwithout undue hardship.D
$erson not party can get statement made to other party F other party if
signed?substantially verbatim
o A@so!$te Wor* Pro%$ct I..$#it': ;3ists for ,a documents ,b prepared in
anticipation of litigation ,b that show the Cmental impressions, conclusions,
opinions, or legal theories or an attorney or other representative of a party
concerning the litigation.D F!5$ '2,b,*.
o Hickman v. 4aylor: attempt, w?o purported necessity?justification, to secure
written statements, private memo, and personal recollections prep6ed?formed by
adverse party6s counsel in course of legal duties falls outside arena of discovery
and contravenes pub policy underlying orderly prosec and df of legal claims
if can get same info F interviews, has not shown that the info nec or
prejudice would result if didn6t comply w? requests.
If attys req6d to provide w4 product in response to discovery requests,
much of what now put in wrtg would remain unwritten.
Jould demorali9e legal profession
-on6t let other side do the w4 for u
*9
E71erts: ,1 ;3pert called to trial: ,a must be identified without request to opposing
partyH ,b must prepare and sign a reportH ,c be available for deposition. F!5$ '2,a,'
,aH ,a,',bH ,b,/,c.
,' ;3pert retained but not called to trial: non)testifying e3pert usu immune F
discovery, discovery concerning their identity, 4nowledge, or opinion requires a showing of
e3ceptional circumstances ma4ing it impracticable for the party see4ing discovery to obtain
the information by other means. F!5$ '2,b,/,B.
) 4hompson v. 4he Haskell Co. vs. Chiquita
) applies to depositions # doc discovery
,* Anretained e3pert not called to trial: (ot discoverable. ,/ $articipant
e3perts and e3perts as party are treated as ordinary witnesses.
C. Doc$.e#t ReG$ests
Protecti9e Or%er: 0he judge may ma4e Cany order justice requires to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or e3pense.D F!5$ '2,c. &
prohibition of public disclosure allows trade secrets or other information to be discovered but then
bars public disclosure by party.
D. De1ositio#s
$resent)steno, lawyers F both sides, and witness being deposed
!arely a j. present, no 1 to mediate disputes
+bjection- !. *<,d,1)& party may object to a discovery request, but must be concise and
nonsuggestive. +ral objections are noted, deposition continued, and objections dealt w? later by
judge. $arty may not answer only due to privilege or court order.
o +bjections because of relevance or privilege
o +bjections as to form:
a witness has already ans6ed .
b . is argumentative
c . is compound
d . is misleading
e . calls for speculation or conjecture rather than facts
f . is ambiguous or unintelligible
!. *<,d,*: may impose sanctions, incl reasonable costs of attys6 fees
E. Disco9er' S#ctio#s
F!5$ -evice 0rigger "anction
Note- 5ourt permission required for
all below orders and motions.
/<
B=)0+
,1
"igning of
-isclosure
;very disclosure shall be signed by at
least one attorney or party member and
state signer6s address.
"ignature constitutes a certification that
disclosure is complete and correct.
Jithout substantial justification, a
certification made in violation of
rule, the court may, upon motion or
sua sponte, impose an appropriate
sanctions, which may include
reasonable e3penses incurred
because of violation, including a
reasonable attorney6s fee. '2,g,*
'2,g
,'
"igning of
-iscovery
!equests
;very discovery requests, response, or
objection shall be signed by at least
one attorney and shall state their
address.
"ignature constitutes a certification that
request, response, or objective, to the
best of signer6s 4nowledge,
information, and belief, after a
reasonable inquiry:
,a consistent with rules, warranted by
law, or a good faith argument for
e3tension, modification, or reversal or
e3isting lawH
,b not interposed for improper
purpose, such as to harass, cause delay,
or needlessly increase cost of litigationH
,c not unreasonably or unduly
burdensome or e3pensive given the
needs of the case, the discovery already
in case, amount in controversy, and
importance of issues at sta4e.
If a request, response, or objection
not signed, it shall be stric4en unless
signed promptly after the omission is
called to the attention of the party
ma4ing itH and the party receiving it
shall not be obligated to ta4e any
action until it is signed.
Jithout substantial justification, a
certification made in violation of
rule, the court may, upon motion or
sua sponte, impose an appropriate
sanctions, which may include
reasonable e3penses incurred
because of violation, including a
reasonable attorney6s fee. '2,g,*
'2,e -uty to
"upplement
& party who has made a disclosure or responded to a discovery request, is
under a duty to supplement or correct if
) ordered by the courtH
,1 party learns that some material respect to disclosed information is
incomplete or incorrect. For e3perts, this duty e3tends to both information in
report and to depositionsH
,' party learns that a response to interrogatory, request for productions, or
request for admission is in some material respect incomplete and incorrect.
><)%+
,*
Impediment to
-epositions
If ct finds that any impediment, delay,
or other conduct has frustrated the fair
e3amination of deponent
may impose sanctions, incl
reasonable costs of attys6 fees
/1
*<,d
,/
Eotion to
0erminate )
-epositions
&t any time during a deposition, on
motion of party or deponent, upon
showing that e3amination is being
conducted in bad faith or in such
manner as unreasonably to annoy,
embarrass, or oppress.
0he court may order officer
conducting the depositions to cease
or may limit the scope and manner of
the ta4ing or the deposition. If
ceased, can only be resumed upon
order of court.
5ourt may order officer to pay
reasonably e3penses incurred in
ma4ing the motion, including
lawyer6s fees.
>?,a Eotion for
+rder to 5ompel
-iscovery
If a party fails to ma4e a required
disclosure, the other party may move to
compel discovery and for appropriate
sanctions. Eotion must include
certification that movant has in good
faith attempted to confer with other
party. *L,a,'. ;vasive or incomplete
answer is considered a failure to
answer. *L,a,*
5ourt may order side losing motion
to pay reasonably e3penses incurred
by other side in ma4ing?opposing the
motion, including lawyer6s fees,
unless court finds that the ma4ing of
motion was substantially justified or
other circumstances ma4e an award
of e3penses unjust. *L,a,/
>?,b Failure to
5omply with
+rder
*L,b,1
If a deponent fails to be sworn or
answer a question after being directed
to do so by court, failure may be
considered contempt of court.
*L,b,'
5ourt may ma4e such orders as just,
among others the following:
,& order facts establishedH
/'
,B deny claims, defenses, or
introduction of evidenceH
,5 stri4e out pleadings or parts,
dismiss, or enter defaultH
,- order treating actions as
contempt of court >e3cept physical
e3am refusal@
as well as pay reasonable e3penses,
including attorney fees, unless court
finds failure justified.
Asu req finding of bad faith?willful
misconduct to support severest
remedies under !. *L,bIstri4ing
pleadings?dismissal. 5onsider
whether less drastic remedy would
be more tailored to misconduct and
better serve purpose of !. *L.
,Pressey v. Patterson
*L,c Failure to
-isclose
If a party fails to disclose, unless
failure is harmless, may not use
evidence in future, plus sanctions as
appropriate ,see right.
*L,d Uross Failure Failure to ,1 appear at deposition,
,' answer interrogatory,
,* answer request for inspection.
Eotion for ,b and ,c require a
certification that attempt to confer was
made.
Eay impose any above sanctions
immediately.
+bjections can only be raised if
protective order pending.
F. Disco9er' A@$ses
S e e + p r o t e c t i & e
o r ) e r
A + U S E O &
D I S C O V E R 4
# a + e
o b , e c t i o n
C o n f e r $ i t h
o p p o s i n ! a t t o r n e y
& A I ( U R E T O
C O O P E R A T E
S e e + o r ) e r
c o m p e l l i n !
) i s c o & e r y
R e s o l & e )
C o u r t i s s u e s o r ) e r
c o m p e l l i n ! ) i s c o & e r y
O r ) e r ) e n i e )
O r ) e r ) i s o b e y e ) .
S a n $ i o n s i m p o s e d .
O r ) e r o b e y e )
O b , e c t i o n s ) e a l t
$ i t h l a t e r e n
m a s s e b y , u ) ! e
C o u r t i s s u e s
p r o t e c t i & e o r ) e r
O r ) e r ) e n i e )
S a n $ i o n s
i m p o s e d .
% R O S S & A I ( U R E
T O C O O P E R A T E
/*
Doc$.e#t Destr$ctio#
loo4 at: F!5$ and case law interpreting, state crim law or fed crim lawIobstruction of justice,
local rules, maybe tort of spoliation
-estruction when /cable but not yet filed lawsuitsanctionable ,William 4. 4hompson v. GNC)
actual holding applied to destruction occurring after suit filed tho.
o 0his dicta couldholding in ne3t case
-5 5rim 5ode R '')L'*: crime if person 4nows?has reason to 4now that official proceeding
begun?li4ely to be instituted to alter, destroy or conceal a doc w? intent to impair its
integrity?avail for use in the proceeding.D
Fed obstruction of justice statute ,1N A.".5. R 11<*: Jhoever corruptly=obstructs=or
impedes=the due admin of justice shall be punished=>by@ imprisonment for not more than 1<
yrs, a fine under this title, or both.
o <.S. v. un$'all: indictment upheld
19N/)5& declared spoliation tortious conduct, but repealed mostly in 199N ,sanctions w?in civ
litigation should deter enough, not in separate suits but fn: possibly may still e3ist if other party
had no reason to 4now that docs destroyedmost of the time.
If t. judge in case decides that destroyed improper may give jury the adverse inference rule ,jury
may draw inference that destroyed evidence as bad as could possibly be
Per6$r'
Eaterial misstatement under oath
".5.: ,ronston v. <.S.: must be a lie, evasive ans that not literally false is not perjury
o (o perjury if true but deliberately misleading
<nite$ States v. !e9arn ,2
th
5ir: if . not as4ed artfully ,.6er misspo4e, but 4now what
clearly meant, then evasive ans%perjury
o -istinguished F ,ronston b?c in ,ronston, literally true answers were nonresponsive,
thereby alerting the .6er and permitting .6er to pursue line of inquiry further
o -eZarn instead gave responsive and categorical answers in order to mislead even tho
literally true, based on lg6er conte3t
F!5$ '2,e
;thics !. *.*
II. SECRECH AGREEMENTS
!. 1,d)disclosures and stuff unless used not filed w? ct
(alinauskas v. Wong: $ can discover some facts of a frmr case covered by a secrecy
agreement related to $6s case and of legit pub concern
o &llowing full discovery of prior case could discourage similar settlements, which
quic4ly resolve disputes and result in greater satisfaction to the parties.
o But
,1 preventing discovery results in condoning practice of buying silence of
witness w? a settlement agreement. $ub concern more pressing as additional
indivs harmed by identical?similar action.
,' -eposition li4ely to relevant evidence. If don6t allow, could wasteful
efforts in discovery.
//
I. ALTERNATIVES TO TRIAL
2 0ypes)more than 9<[ of dispositions, trials about 1[
1. negotiated settlement ,about 2<[, ' ways)- agrees to pay and $ voluntary dismissal +!
consent jmt
) 5onsent jmt most advantageous to $
) $ can use jmt to get sheriff to enforce it ,e3ecution
) Injunctive case)can use consent jmt to contempt of ct prison
) jmt has pref in ban4ruptcy over mere debts
) for claims under fee)shifting statute)Buc4hannon ,'<<1)".5.: fee)shifting statutes
op for prevailing party, only when prevailing reflects a ct jmt, incl a consent jmt
) Both can invo4e preclusion
jmt for damages)judicial statement ,not injunctive that - ,jmt debtor owes money to $ ,jmt
creditor
) may ta4e some w4 to collect ,v. boring
) can e3ecute it, have sheriff sei9e other person6s
) substantive restrictions in state law ,e3. if own prop in its entireties, may be e3empt,
prop in F:, etc.
) proced restrictions),1 to e3ecute, may have to post substantial bond to pro sheriff F suit
if jmt attac4ed under state law and ,' if jmt debtor leaves jurista4e to other state to
get jmt on a jmt
) but tend to hide assets outside juris, in spouse6s name, often before jmt)most but not all
states have passed Aniform Fraudulent 5onveyance &ct)can ma4e suit against wife if
not conveyed for full val ,if fully paid, must trac4 down money
) wage garnishment order)[ to jmt creditor every mo., employers hate it b?c huge admin
e3pense ,192N)firing prohibited after 1, allowed after ', v slow
) most states allow to e3amine jmt debtor under oath to find out where assets are 7
,1 must serve again and ,' if doesn6t show up, in contempt, but police less willing to
do that than solve violent crime and ,* if 4now that lying, can put in jail but if u 4now
that, pt of e3am worthless
'. default jmts ,!. 11) - fails to appear. 8udgment is entered for $.
*. !. 1' dismissals
/. Involuntary dismissals by ct, upon motion by - ) !. /1,b)can throw out against $ if lawyer
neglects case or doesn6t comply w? rules
1. Qoluntary dismissal by $)!. /1,a,1: dismissal as of rt or ,' by order of the ct ,by that time, -
has put some w4 into case, may req $ to reimb - for that w4
2. "ummary judgment)!. 12: when no genuine issue of material fact, no reasonable trier of fact
could do anything other than rule in favor of moving party, Eoving party entitled to 8E+:.
) 5an have partial summary jmt to limit issues in case
) !. 12,c mandates entry of summary jmt, after adequate time for discovery against a
party who fails to ma4e showing sufficient to est e3istence of an element essential to that
party6s case, and on which that party will bear burden of proof at trial.
) Eoving party may discharge its burden by showing to district ct lac4 of $6s evidence on
every element to show that $ ,non)moving party cannot meet burden of proof.
,Celote6
/1
) "pecific evidence trumps generali9ed evidence ,,ias
) !. 12,e: to w?stand summary jmt motion once moving party has made prima facie
showing to support its claims, nonmoving party must come fwd w? specific facts
showing that there6s a genuine issue for trial.
II. ALTERNATIVE DISPUTE RESOLUTION
"ubj to restrictions in state law?5on, parties can K to ta4e cases out of cts altogether. "ome state
laws outlaw certain 4inds of mandatory arbitration agreements.
(egotiation and mediation can ta4e place outside of litigation
(egotiation, arbitration, and mediation can be done after suit filed to dispose of it
8udges encourage parties to settle, some cts req mediation before go to trial or non)binding
arbitration
o parties go thru arbitration proceedingorder, but a party who doesn6t li4e may still as4
for a trial
o if don6t do better in trial than arbitrationoften have to pay other side6s atty fees for trial
o ct)ordered mediation)usu no penalty for going to trial, but may prejudice judge
arbitration agreement can either req arbitrator to follow law as judge would or agree on diff
legal sys ,equity, etc.
no limits in private negotiations and mediation, maysomething ct couldn6t?wouldn6t order
v fashionable, but a bac4lash against &-!
o not much quarrel about when lg corps. see4 voluntary
o but has widely spread when sta4es relatively small
o paying for arbitrator may be more than cost in disputecosts may be much higher than
litigation
o involuntary &-! b?c K terms
o when parties have v diff levels of bargaining pwr and sophistication
cts v friendly to &-! agreements ,less bi9 for cts to deal w?
R 1 of Fed &rbitration &ct applies to Ks of employment, only e3empts Ks of employment of
transportation w4ers
large employers tend to be more successful in arbitration after repeat e3periences than
employees not familiar w? arbitration, arbitration can be faster and cheaper, and avoids stigma of
being found liable for discrimination and so forth b?c proceedings are private.
III. TRIALS
A. Tri! Pre1rtio#
inde3 mil pgs of docs, computeri9e inde3, fill in gaps in investigation, prep .s, rehearse
testimony, moc4 Y)e3amination, sol6ns to evidentiary probs, trial brief, opening statement,
instructions, jury selection strategy, etc.
!. *2)&dmissions ,not really a discovery device)only Cyes?noD, 0otally foreclose issue if admit
it?don6t respond, satisfies burden of proof on the issue.
o !. *L,c,')sanctions for failure to admit improperly%person who as4ed . may prove
matter then sue for counsel fees
/2
&. Pretri! Co#"ere#ces #% Or%ers
!. 12)$retrial conf)mtg, often in private in judge6s chambers in which discuss
) 0o get judge involved to help manage case
) some local rules req attys to prep for, ma4e parties do most of the w4)describe which
factual issues still in dispute, discovery disputes, witnesses, docs, how long trial needed,
etc.
) "ome juris)tries to get parties to settle at pretrial conf subtly)assess strengths and
wea4nessesmay reali9e closer to settlement than 4new, persuade attys to limit
!. 12,b)encourages pretrial conf ,not req6d, judge req6d to ma4e pretrial order incl all
admissions and stipulations, remaining w4, .s to jurors in voir dire, submission of jury
instructions
) $retrial orders can only be amended to avoid manifest injustice.
) In deciding Cmanifest injustice,D failure of counsel to bring forth this theory of liability
til during trial must be weighed against possible prejudice to - in then permitting
departure F pre)trial order. ,Mc(ey v. 3air2airn
) 5onsider whether failure to incl in pre)trial order deliberate and whether any possible
disadv to -s6 e3p6ed counsel could have been corrected w? continuance ,Mc(ey.
C. The Ri0ht to J$r' Tri!
L
th
& in fed system)preserves rather than creates rt to trial by jury, based on what was in law or
in equity in 1L91
0raditional types of suits in which both legal and equitable claims
o If entirely separate facts)jury decides legal, judges equitable
o If factual issues common)".5.: apply equity ma3im that equity hear case only if no
adequate remedy at lawlaw ta4es precedence
characteri9. of state)created claim as legal?equitable for purposes of determining jury trial based
on fed law. ,"ee .moco /il
&t least when counterclaim compulsory, even equitable main claim can6t preclude jury trial on
legal counterclaim. +therwise, would deprive of L
th
& thru preemption and doctrine of res
judicata. ,.moco /il
,eacon: if factual issue in common, then jury gets to decide what was said, but in fn 2: judge
can decide mesne profits if jury: no franchise agreement
8ury selection
o &s4 .s in voir dire, * peremptory stri4es and challenge for cause
o In big cases:
community attitude assessment?survey)thin4 about sociological categories, thin4
about stereotypical categories, but dangerous b?c regional and local diffswant
to ma4e survey about town?cty ,can6t tal4 to potential jurors, but can as4 ppl just
li4e them)as4 about gen facts then sociological.
5an also do a sociologically similar moc4 trial.
o jury panel investigation ,med)si9e case)names of jury panel made publawyers can
investigate as long as don6t tal4 to them. :oo4 at pub sources, voter registration lists, cts
maintain records of prior jury svc, prop records, ct records, Uoogle, local newspaper
arts. 0al4 to friends and neighbors ,be up front, say that routine)hope that juror doesn6t
hold it against u. Jindshield survey)loo4 at home, cars, etc.
/L
D. &$r%e# o" Proo"
1. burden of production)enforced by judge, ta4es case away F jury
'. burden of persuasion)j. instructs jury
Asu allocated to ea side based on burden of pleading
Asu present evidence on both sides
- wins if e3actly in equipoise b?c $ has burden of persuasion ,more li4ely than not
E. Tri! Proce%$re- T'1ic! SeG$e#ce o" Tri!
8ury "election
+pening "tatements
$arties present cases)+rder of witnesses very important)trying to build story, but only allowed
to put witness on stand once
-irect e3amination has * objectives:
,1 Uet doc?testimony into evidenceIget facts out.
,' Ea4e jury believe that are true
,* &ppeal to jury6s emotions as well as persuade that actually happened
inference)permissible concl that may be drawn by normal trier facts based on normal e3pected
behavior of ppl?law of nature
) If jury allowed to ma4e inference and rules for $, $ has satisfied burden of prod
!ebuttable presumption)$ wins unless - can show some evidence to rebut
) (- rebuttable presumptions: official duty performed regularly, j. who decided prior case
had juris to decide it, if possessed something then owned it ,possession 9?1< of the law,
if paid O to another owned it, person not heard F for last L yrs dead, law obeyed, date on
a doc the true date of doc, letter mailed rcv6ed, thing found to e3ist cont to e3ist for as
long as things of that type usu e3ist
Mow ea witness begins and ends testimony ,jury remembers)primacy and recency, order of
facts w?in testimony, pace and modulation
:eading .s improper, less persuasive
Y);3amination).6ing witnesses, rarely to learn new facts ,don6t as4 . don6t already 4now ans to,
but wrong b?c 1<[ of cases have no discovery so sometimes have to do that
) 0ry to get witness to recant depositionimpeach?say what already 4now
) -iscredit w? inconsistencies, poor pwrs of memory?observation, bias
) Asu only ans .s that could ans CyesD or CnoD ,only as4 leading .s
) +wn lawyer can as4 .s on redirect to let witness to qualify
Both sides rest, 8E+: motions denied
5losing statements)combo evidence w? law, in light of that must win ,e3act moment when put
theory together w? facts
Final step)j. instructs jury
) +ften standard instructions ,pattern instructions
) But lawyers allowed to as4 for more specific instructions ,!. 11
) way in which law can be reformed)e3. as4 for strict liability rather than negligence,
trial on negligence. If lose, have an appealable issue in the case. & way to create a
test case if - hasn6t challenged u on law at an earlier stage
/N
8ury rets and ma4es decision)in fed sys., must be unanimous, but not nec in state sys
Asu gen verdict, but may give special verdict ,F!5$ /9, or both ,to ans part. .s)might be
inconsistentshow that jury didn6t understandv rare to as4 for, but channels jury6s thin4ing
on v comple3 cases
(o trial by jury)e3. consent to bench trial, equity matter, no1 has requested w?in time limit,
when granted summary jmt?complaint dismissed
F. J$%0.e#t s Mtter o" L/ ) 8nov?directed verdict, now called 8E+: ,!. 1<,a
1. 0est for granting j.n.o.v. and directed verdict: consider evidence in light most favorable to non)
moving party and grant motion only if evidence so strongly and favorably points in favor of moving
party that reasonable ppl could not arrive at a contrary verdict.
'. "ame analysis as summary judgment motion)judge ,and, on appeal, the appellate ct not to
substitute on own opinion but must decide that no reasonable juror could have found as this jury
did.
*. If outcome so uncertain that could be found either way, then whatever jury decides should be
upheld by app ct ,and 0. judge.
$req)may not ma4e 8E+: after verdict unless have made at end of all the evidence ,!. 1<
o 8udges have opp to let side that has committed error correct it before goes to jury
Jhen evidence on both sides F which could suppose own inferences, allow jury to stretch as far
as reasonable jury can stretch in favor of nonmoving party ,aven$ar v. (urn
&llows jury to reach verdict that will stand if judge is reversed on appeal, thus no need for new
trial.
G. Motio# "or Ne/ Tri! ,F!5$ 19
"tandard: was there a miscarriage of justice here.
Uranted for ,a evidentiary errorH
,b improper conduct by party, witness, lawyer, or juryH
,c verdict against clear weight of evidenceH
,d verdict based on false evidenceH
,e verdict that results in miscarriage of justiceH
,f e3cessive?inadequate verdict
Eay also be granted for newly discovered evidence if ,a evidence was discovered since the end
of trialH ,b the movant was reasonably diligent in his search for the evidence before and during
the trial an d could not reasonably have found the evidence before the end of trialH ,c the
evidence was material and in fact li4ely to produce a different resultH and ,d injustice would
result.
IIII. APPEAL
'N A.".5. R 1'91: cts of appeals have appellate juirs over all final decisions of the district cts.
'N A.".5. R 1'9',a: cts of appeals have appellate juirs over interlocutory orders regarding
injunctions, receiverships, and liability of parties to admiralty cases.
/9
'N A.".5. R 1'9',b: cts of appeals have appellate juirs over interlocutory orders # district ct
judge in doubt about # controlling . of law # 0. judge states in writing # 5t of &ppeals must
agree in its discretion.
," 1*
must appeal to A" ".5. F state ct on a federal . 7 state app ct might rule in ur favor later, avoid
wasting ".5.6s time, and respect for state cts
Interlocutory orders are not appealable.
".5. in Cogen v. <nite$ States: +rders made on pretrial motions or motions made during a trial
to secure or suppress evidence are interlocutory. +nly when a party does not comply with the
order and is punished criminally for contempt can the party have appellate review before final
judgment is entered.
IIV. RESPECT FOR JUDGMENTS
A. C!i. Prec!$sio# )res judicata+ ) $ cannot sue - for previously decided cause of action.
1. Eajority view: 1 tort is the basis of only 1 c?a, so all damages must be sued for in 1 suit to
prevent multiplicity of suits, burdensome e3pense, and delays to $s and ve3atious
litigation to -s. & later suit on another theory is precluded if it is brought based on the
same event or transaction and facts. ,see -ush v. City of Maple Heights
&. F$!! Fith #% Cre%it
) & second court must give a first court6s judgment the same effect that that judgment would
have in the state which rendered it. 0his includes e3ecution of judgments and res judicata
effects.
) Eotion for judgment on a judgment) see4ing enforcement of an out of state verdict.
) ;3ception: 5ollateral attac4.
C. Reo1e#i#0 J$%0.e#ts
&ll states have a motion to reopen jmt, li4e !ule 2<,b, but often time limits and give judges
discretion to refuse to reopen jmts even if conditions met. It is easy to overstate the success rate
of such motions.
Eore li4ely judges will reopen default jmts than if - has shown up, esp if reason to believe
something fishy about service of process.
F!5$ !ule 2<,b allows to reopen for:
,1 mista4e, inadvertence, surprise, or e3cusable neglect
,' newly discovered evidence
,* fraud, misrepresentation, or other misconduct of an adverse party
,/ jmt is void
,1 jmt has been satisfied, released, or discharged, or a prior jmt upon which it is based has
been reversed or otherwise vacated, or it is no longer equitable that jmt should have
prospective application
,2 any other reason justifying relief from the operation of the jmt
,1),*) Eotion must be made w?in 1 yr
,ran$on v. Chicago ,./.0.: case can only fall into a single category.
1<
ISSUES CHECKLIST
1. $ersonal 8urisdiction Issue.
'. "ubject Eatter 8urisdiction Issue.
a. !emoval. !emand.
*. Qenue Issue. 0ransfer.
/. ;rie -octrine Issue.
1. $leadings Issue.
2. Eotion Issue.
L. -iscovery Issue.
N. 5lass &ction.
SNEAKH LAWHER TOOLS
1. &mbiguity in word meaning:
a. "tatutory interpretation 7 does the statute actually apply. 5an we twist the words in an evil,
diabolical way.
b. If word or phrase used in two different places, do they have the same meaning. 06ample=
:.rising un$er >? in statute versus .rticle III.
c. &re there implied meanings. 0he word CmayD can be construed as permissive or as meaning
Cmust.D
d. :egal theories: Jhat legal theories were used. 5an we see a different basis for the ruling or
application of the rule.
e. Is it misleading.
f. If statute = does it actually authori9e private suits.
'. &ppellate court treatment 7 can we distinguish or draw parallels between the way the appellate
court treated the trial court.
a. -id it show deference to the court.
b. -id it show deference to the fact finder.
*. +ther alternatives.
a. &re there available alternatives that provide the same relief.
/. !eal ;ffects
a. -oes it lead to real, if unintended effects.
1. $olicy arguments
a. Jhat is the legislative?court intent.
b. Jhat broad social purpose is being fulfilled.
2. Is it mere common law that can be changed by statute.
L. Interpretative shenanigans:
a. If old statute or case, what was its meaning bac4 then. +riginal intent.
b. Jhat if the court6s ruling is construed narrowly. Mow about broadly.
L. $rocedural B.".:
a. 5an an e3tension be granted to avoid adverse action.
b. Is an amendment or refilling allowed.
11
MOTION ANALHSIS
1. "hould it have been plead with particularity under F!5$ 9.
'. "hould it have been included as an affirmative defense under F!5$ N,c.
*. Mas it been waived under F!5$ 1'. ,(ote: Eotions not covered by F!5$ 1' can be made pretty
much at any time
/. Is it untimely.
1. -oes it require judge approval that has not been granted.
2. &re the F!5$ requirements not satisfied.
L. Is there a common law interpretation that applies.
&AD LAWHER ANALHSIS
1. !ule 11: frivolous, harassing, lac4ing evidence claims. 5ertification that filing is accurate. !esult:
sanctions.
'. !ule '2,g: certification that discovery is complete, made in good faith, not meant to harass,
delay, or increase cost. !esult: &ppropriate sanctions.
!ule '2,e: duty to supplement.
*. !ule *<,d. 5annot conduct e3amination in bad faith or to unreasonably annoy, embarrass, or
oppress. !esult: "ee4 protective order under '2,c. &ward e3penses I&J ,in accordance with
*L,a,/.
*. !ule *L: -iscovery sanctions after order to compel. Uross failure. !esults: see rule for several
options.
/. &B& !ules. !esult: disbar, discipline.
1. 5riminal statutes.
2. Bison case heralding new standard.
1'