Civil Procedure Outline Lauren Calton Spring 2009

Professor Bloom
SECTION 1: JURISDICTION
I.

II.

Background
Article III of US Constitution (establishes the federal court system) -- things not included, courts can't hear.
Article IV, Section 1 of US Constitution- "full faith and credit clause". (if they had jurisdiction).
14th Amendment.
Personal Jurisdiction where question. Under DPC, courts can only hear cases when they have PJ over the
defendant. PJ=courts power to hear case over a D.
1. Background
a. Pennoyer v. Neff : No longer good lawEstablishes a very rigid rule, establishing PJ as part of whats
required under the DPC. It says that in determine PJ, look at presence in particular state and owning
property in state allows court to exercise PJ in state. But Neff buys property after judgment and usit
wasnt about property so court holds for Neff. Case says if in state, PJ, if out of state, no PJ.
b. Miliken v. Meyer Partners for oil well sued each other in Wyoming but on in CO. Court hodls that
there is PJ even though he is not physically present in the state. Leaving state physically doesnt
abolish connections with stateit is fair for court to exercise PJ over someone who owns property
in state. With privs of state come responsibilities such as paying taxes/being subject to courts there.
Expands the original personal jurisdiction from Pennoyer.
c. International Shoe Co. v. Washington: Court holds the company is subject to PJ of WA courts even
though it not a resident and its factory not there. Court says for first time that court can exercise PJ
over non-resident D if D has minimum sufficient contacts in state such that jurisdiction does not
contradict due process (fairness).
1. Minimum sufficient contacts: Look at how regular business was, quality and nature of Ds
activity, # of employees there, amount of revenue derived, if company takes advantage
of enough of rights of state to be sued there.
d. 3 types of Jurisdictions
i. In Personam Jurisdiction (and assets) Most common. PJ over the person D then PJ over
a person or corp and all their assets
a. Ex. Times v. Sullivan-PJ over Times and 4 neighbors. Also McGee and
Denckla cases.
b. McGee. V. International Life Insurance-PJ exists. Franklin, CA resident,
purchase life insurance policy from insurer which mailed reinsurance certificate
to Franklin in CA offering to insure him. He accepted by paying premiums by
mail from his home to insurers Texas office. When insurer stopped paying
after Franklins death, McGee estate sued in CAthere is PJ, held for McGee
estate, since with increasing nationalization of commerce increases business
conducted across state lines and modern transportation makes it less
burdensome for party to defend himself in a state where he engages in
economic activity. Due process binds insurer since suit based on contract
which was substantially connected to CA since premiums mailed from there and
insured resident of CA.
c. Hanson v. Denckla-No PJ. Mrs. Donner created trust, funded by public traded
stocks. She lived in PA, but trust created in DE, with DE bank as trustee. She
then moved to FL and died there, her will probated in FL. Issue: Does FL
court have PJ over the trust? Holding: FL lacks PJ, so 3 daughters share equally.
Under shoe standard, no minimal contacts in FLD trust company has no
office in FL/does no business there.
ii. In Rem Jurisdiction PJ over a thing or tangible itemusually real property.
a. Ex. If bro calls you up and asks to borrow your car, gets caught smuggling
drugs across Mexico, govt has in rem PJ over the car.
iii. Quasi in-Rem Jurisdiction establishes PJ over a person by seizing assets as leverage to
make him appear to get in personam. Its a mix of the two
1. Shaffer v. Heitner (one approach)
1

2. Facts: 21 Ds (Board of directors of Greyhound in DE) property was seized when P

stockholder sued for causing Greyhounds substantive damages in private anti-trust suit.
None of directors lived in DE. Concerns seizure of shares (stocks) of Greyhound.
3. ISSUE: does quasi-in rem require the same jurisdiction as international shoe?
4. HOLD: yes -The seizure of property cannot create in rem jurisdiction if the subject of
the suit is not that property. (Application of Intl Shoe). No PJ, held for board of
directors. Neither statutory presence of appellants stock in DE nor their positions as
directors of DE corporation can provide sufficient contacts to support jurisdiction.
2. Establishing Personal Jurisdiction
a. CONSENT - Plaintiffs consent to the jurisdictions of the court they file in, that they opted into that
jurisdiction. Ds can consent to a courts personal jurisdictionParties can waive the right to challenge
personal jurisdiction (unlike SMJ)
i. Ways to consent
1. Start litigating-dont challenge it at al
2. Blunder-forget to challenge PJ in the right way or at the right time
a. NY Times v. Sullivan-times messed up by arguing SMJ, but what they did then
is actually ok now under 12H, B and G
i. 12B2-you can file motion to dismiss for lack of PJ so long as rule 12G2
says ok
ii. 12G2-you can file motion to dismiss with other motions, so long as you
challenge PJ at your first opportunity
iii. These rules tell us you must challenge PJ at first chance, or its gone
3. Sign something/enter into contract can be type of consent (forum selection clauses)
a. Carnival Cruise
b. Perhaps in Burger King
ii. When do you Consent?
1. Gibbons vs. Browns no PJ since facts do not bring it within requirements of Florida long
arm statute.
a. Facts: 2 suits. Ms. Gibbons, Texas resident, sues Mr. Brown in FL alleging his
neg driving caused injuries to both passengers. 2 years later, Mrs. Brown seeks
to recover for her own injuries/sues Ms. Gibbons for giving bad directions.
b. ISSUE: Whether Ms. Gibbons consented to personal jurisdiction in FL by
filing first suit?
c. HOLDING: No. In personam jurisdiction over non-resident D requires 2
pronged showing1) facts to bring D within coverage of long-arm statute
(FL statute says D must be engaged in substantial and not isolated activity
within the stateCourt says shes not engaging in other activities. And 2) For
due process, must show D had sufficient minimum contacts as in Shoe2. Adam vs. Saenger - Sanger brought suit against Adams then Adams sued him back and
Sanger tried to get out of it but couldntthere was PJ since it was one case (juts
counterclaim), whereas Gibbons was 2 cases. + there was consent.
iii. 2 types of consent
1. HARD Consent/exclusive consent Any contractual provisions between the parties?
The claim can only proceed in a particular jurisdiction (i.e. forum selection clauseswe
consent to litigation in this forum only as in Carnival)
a. Carnival Cruise Lines P sues Carnival in WA court when one slips on deck, but
Cruise ticket that has Florida law forum clause on ticket.
b. Holding: No PJ in WA, rather it is in FL and lower court erred in not enforcing
the forum-selection clause. No bad faith motive, legitimate interest in having
forum in Florida (principal place of business in FL, many cruises from FL ports,
since it travels so muchcould open it up to suits anywhere), forum selection
clause spares litigants time in figuring out where, although there is no bargaining
parity.
c. Forum selection clause does 2 things-it defeats PJ in WA, consents to PJ in FL
2. SOFT Consent/non-exclusive consent-Suit can proceed in this forum.
2

a.

Consent to jurisdiction clause: we consent to jurisdiction of a court if litigation happens (but

doesnt limit litigation to that particular jurisdiction)
b. Choice of law clause: might be example of soft consent (i.e. I consent to PJ in Florida
even though you could sue me in Michigan, as in BK)
i. Burger King-example of soft consent b/c Ds should have known that choice of law
clause might subject them to that forum, contract didnt limit it to FL.
Note: A partys consent to PJ in a prior suit doesnt establish her consent in second suit
Gibbons: Ds filing of case in FL in first suit does not mean consent to Florida PJ in future
cases
b. ESTABLISH DUE PROCESS: we have to ask whether its fair or reasonable to force Ds to appear in
certain court . 2 options:
i. General Personal Jurisdiction: (any claim) Party has sufficient connection with the state.
Court can adjudicate any claim against the D connection between the defendant and the court
is a lot it is still fair and reasonable. (need one).
1. Substantial and continuous contacts (applies to both corps and individuals)
a. Perkins Case-SUFFICIENT
i. Perkins (non-resident of Ohio) sues a Mining Company (properties in
Phillipines) in Ohio.
ii. Court says Ohio has general PJ because there are substantial and
continuous contacts (not just minimumopening it up to general PJ)
President had office files there, offices there, drew salary checks,
correspondences, etc (laundry list of things) *Judicial necessity because
no Phillipines court, no remedy for P if cant sue in Ohio.
b. Helicopteros Case-INSUFFICIENT
i. Helicopteros is a Columbian corporation (cause of action was in Peru).
Bought helicopters at regular intervals from TX, sent pilots to train there,
received money wired from TX banks, CEO went once for negotiations
ii. Court says no general PJ mere purchases is not enough to hold a
jurisdiction over a nonresident since not substantial/continuous contacts
(also had a forum selection clause for Peru)
2. Principle place of business / or state of incorporation
3. Domicile (I) - only applies to individual. **does not always mean residence** Often where
they reside but could be wehre they intend to staythe place you call home if you arent
really there.
4. "Tag" (I)-applies to individuals who are temporarily in state while getting served with
process if they are voluntarily there.
a. Burnham-if you are served with process in hand while in borders of particular state
and voluntarily there, there is PJ.
i.
Defendant was served with a summon while on a voluntary business trip to
San Francisco.
ii.
Court says there is general PJ when husband goes to visit kids and wife
serves him with divorce since he was there voluntarily. Tag (Pennoyer
not completely gone)
ii. Specific Personal Jurisdiction: (specific claim) Party has sufficient connection with the state
for that claim. Contacts with the state are directly related to the cause of actions and the
substance of the lawsuit. You need both contacts and reasonableness, but it is a sliding scale
the more you have have one, the less you need of the other, as in BK and Asahi below. *Must do
all Ds separately and federal courts use same PJ model as state courts.
1. World-wide Volkswagen Corp:
a. Plaintiff buy Audi in NY, get in accident in OKI, and sue D VW in Oklahoma
but defendants say there is lack of contacts for Jurisdiction. (they attack
collaterally and sue the judge)
b. No in personam PJ since D had no contacts, ties or relations with OK.
Upholds Shoemust be minimum contact between D and forum state. Test:
Forseeability is not irrelevant, but Ds conduct and connection with forum state
3

are such that he should reasonably anticipate being hailed to court there. Here,
not reasonable, no purposeful availmentno min. contacts (see test below)
For specific PJ there must be
1. "Minimum Sufficient Contacts"-that are purposefully directed to the target
state/purposeful availment, that are connected to the suit. Can be things you 1) you did
inside the state physically or 2) you did outside the state that had effects in the state.
2. Reasonableness (established by WWVC)
a. *Burden on defendant - defendant's interest /fairness (key factor)
b. Ps interest in forum (fairness)
c. States interest (federalism)-event happened there, so some state interest
d. Interstate interest in efficient resolution (federalism)-whether there would be
better place to litigate it with regards to where evidence is
e. Shared interest of several states in furthering fundamental substantive social
policies (federalism)
***purposeful availment***-D took some purposeful action to avail itself ot he
benefits of that state
2. Asahi Metal Industry Co (Japanese co.) v. Superior Court-there is no PJ
a. CA citizen P injured on motocycle when collied with tractor, filed product
liability action in CA against Taiwanese tire manufacturer, who then ifled 3rd
party complaint seeking indeminification from Asahi, manufacturer of tubs
valve assembly (Japanese co). Asahi was aware that parts were ending up in Cali
(forum). Is this sufficient for minimum contacts?
b. Due Process Clause requires more than that D was aware of its products entry
into the forum State through the stream of commerce rather you need
Purposeful Availment. forseeability
c. Holding: No PJ. All justices agree that the reasonableness test fails here. Mere
awareness that tire tubes will end up in CA is not enoughNo min. contacts
3. Burger King Corp. v. Rudzewicz-there is PJ
a. D fell behind on franchise payments. P sued in Florida federal district court
because Ps headquarters in FL.
b. Holding: There is PJ since D franchisee entered into contract w/ FL based
corporationpurposefully directed his activities at FL.
c. RULE: Sliding scale. More reasonable it is, the less you need contacts. Less
contacts but more reasonableness since made sense to litigate in FL)
4. Pavlovich v. Superior Court-no PJ
a. Pavlovich (texas resident) posted anti-encryption technology on his website
hurt DVD CCA. He was in Indiana but now Texas resident. CCA sues him in
CA, arguing he hurts motion picture and computer industry).
b. Affects Test-Jurisdiction can be established based on the effects of conduct in
forum state if they were purposeful. You dont have to actually step into the
forum if you can reasonably expect to have an effect in the forum which would
expose you to lawsuit.
c. HOLDING: Court says no PJ since no purposeful availment.
c. STATE LONG ARM STATUTE
i. State courts can regulate so long as there are consistent with the due process clause. They can be
more demanding than due process, but not less. Rationale: preserve court resources, limit
opportunistic Ps. They can go as far as Due process (ex. California) -- co extensive. Due
process is floor, not ceiling.
ii. Do 2 things
1. Apply state long arm statute
2. Make sure state long arm statute doesnt contradict due process clause

III.

NOTICE-Making defendant aware of pending legal action. Closely related to PJ, but dont conflate the 2. Under
DPC: deprivation of life, liberty, or property by adjudication must be preceded by notice and opportunity for hearing
appropriate to the nature of the case.
Rule 4(k) - Can establish PJ by serving person whom the state court has gen jurisdiction.
You need two things:
i. Notice-notification given to a D regarding pendency of action against him
1. Personal Service/In-hand service of process
a. Advantages-emphatic, clear, and if you want PJ in that state, can get tag jurisdiction
b. Disadvantages-could be hard to find person, expensive
2. Certified Mail-Acceptable, easy, cheapr, but some things can get lost
3. Publication (last resortsee Mullane below)-Newspaper can be practical if you can show inhand and mail are impractical.
4. 98% of cases D waives right to formal notice. Why?
a. Rule 4D (must know!)-waiving service of process
i. Money-D could have to pay for cost of service of process if you dont wave
unless there was good reason not to waive
ii. Time-If you waive service, you get more time to respond to complaint.
ii. Opportunity to be heard/respond
1. Must be fair -- Reasonably Calculated to notify and allow D enough time to respond
Mullane v. Central Hanover Bank & Trust Co.
i. Trusts: assets deposited by a first party (settler) with second party (trustee) for the benefit of third
parties (beneficiaries).
ii. Notice was sent via newspaper but the Defendant had their addresses.
iii. Court said this was not reasonable Parties should make reasonable effort to give notice. Court ruled
that an elementary and fundamental requirement of due process in any proceeding is notice
reasonably calculated to apprise interested parties of the pendency of the action and afford them an
opportunity to be heard. Notice by publication is not suffiecient when addresses and persons ar e
known.
Waiver of Serve: if D doesnt refuse to waive service, costs by P go to D for effecting service.

IV.

VENUE authorized by 1391 Another limit on where case can proceed, focusing on districts. Venue=location
of court where suit would take place. Can be waived.
Source of law: PJ is derived from due process/long arm statutes and venue comes form federal 28 USC 1391.
Scope: PJ applies to state and federal courts and venue applies only to federal courts (states have their own venue
statutes but 1391 applies only to federal courts)
Breadth and focus of analysis
o In PJ have to go through each D one by one, but for venue, look at case caption as a hwole
o PJ looks at borders of states, but venue focuses on districts. Districts are little subdivisions of geographic
areas within states by population (CA has 4 judicial districts-northern, eastern, southern, and central)
Type of Case/SMJ (1391 A or B)
For jurisdiction based on diversity citizenship 28 USC 1391(a)
1. 1391(a)(1) RESIDENCE: In federal district where any D resides, if all Ds reside in same
state
a. Ex. CA P against two Ds in NYjurisdiction in Bronx or Albany so A1 satisfied
b. Ex. CA P against D in NY and D in MAA1 not satisfied
2. 1391(a)(2) SUBSTANTIAL EVENT: In federal district where a substantial part of the
events occurred or substantial piece of the property is
a. Ex. CA P sues D from NY and Idaho and accident happens in Connecticut. A1 not
satisfied but A2 is satisfied n Connecticut since venue exists (accident there)
b. Ex. Same facts as above but try to sue in Texasno A1 or A2 venue
c. Ex. Same facts as above but accident in Mexicono A1 since Ds in dif. States, no
A2 since no judicial districts outside of the US.
3. 1391(a)(3) PJ FALLBACK: Federal district (not state) in which any D is subject to PJ at
the time the action is commenced, if there is no district where action may be brought)
5

a.

Ex. CA P sues D from NY and Idaho and they have car accident in Mexico. Could
try to sue in NY or Idaho, but each D will make motion to dismiss since no PJ, so
have to sue each separately or just sue one
Everything
else
1391(b).
Not all about diversitycould be federal question or federal question +

supplemental jurisdiction
1. 1391(b)(1) RESIDENCE: where any D resides, if all Ds reside in the state.
a. Ex. CA P sues Ds in Montgomery and Birmingham for copyright violation (federal
question) so P can sue in either Montgomery or Birmingham
2. 1391(b)(2) SUBSTANTIAL EVENT: where substantial part of the events occurred.
a. Ex. Texas P sues Texas and Ohio Ds about labor dispute in Michiganthere is
venue in Michigan
3. 1391(c)(3) FALLBACK: Judicial district in which any D may be found, if there is no
district in which the action may otherwise be brought (similar to A3this is distinction but
not a differencethis means subject to PJ)
Type of Defendant (C or D)
Corporate defendants-Corporations reside in any district where it is subject to PJ at the time the action is
commenced plug it back into 1391(a)(1) or (b)(1).
i. Ex. Oregon P vs. Seatle D and Anheizer Bush, filed suit in WAA1 is satisfied for Seattle D, but
not for corporate D, so
1. Ask where corp. is subject to PJ=where it resides. Anheizer Bush resides anywhere where it
is subject to PJ and it sells things everywhere, so WA is appropriate under A1.
2. Plug info into A1 or B1.
Alien (non-US citizen)-may be sued in any district
A case removed from st to feral, has venue where such action is pending 1441(a).
Dee-K Enterprises v. Heveafil-there is venue and PJ
i. Dee-K (P), a Virginia corp, bought rubber thread from Heveafil D, Malaysian company, an dother
foreign companies to make bungee cords. P alleged that D and other coprs were engaged in
conspiracy to fix prices, brought antitrust action in Virginia. D moved to dismiss suit, arguing no
venue and no PJ.
ii. Holding: There is PJ and Venue for Malaysian Ds that make rubber for bungee cords. General
venue statute, providing that aliens may be sued in any district, overrides special venue laws that
place venue more specifically. D had exclusive sales agent for US, customized product for US
market, so applying shoe, there is PJ. Clayton Act lays venue in any district where D is found or
where it transacts businesswhile D does not meet these requirements, 28 USC 1391 says aliens
may be sued in any federal district and this overrides special venue statute in Clayton act.
*PJ, Notice, Venue, and SMJ are not always sufficient to proceed in a case, because there are 2 discretionary devices federal
courts, and sometimes state courts can use to reject cases even if they have PJ
V.

TRANSFER AND FORUM NON CONVENIENS-not very common, transfer more common, but forum
nonconveniens has only succeeded at SC twice.
Transfer (statutory): - 1404- Change of venue within federal court system
i. 1404(a) for the convenience of parites and witnesses in the interest of justice, a district court may
transfer any civil action to any other district where it might have been brought (has PJ)can
happen by party motion, or at courts own discretion. CONJUNCTIVE TEST:
1. Where? Is there an Alternative Fed. Court ( with PJ, Notice, Venue & SMJ). Big issue is
venue since the others are easy (D opts in)
2. When? When the alternative court is better than the first court for the interest of Justice
and convenience of parties and witnesses and also access to evidence
a. Ex. CA P v. Connecticut D about 7-11 frnachise caught on fire in Ohio. P sued in
Connecticut federal court since there is PJ since D resdies there (domicile), there is
notice and SMJ and gets venue under A1. But there could also be venue in Ohio
since fire took place there under A2, so you can transfer from Connecticut federal
court to Ohio federal court. It makes sense since witnesses and evidence are there.
ii. No need to dismiss and refile, law that would have applied in original court gets transferred with the
case.
6

VI.

Forum Non Conveniens (common law) Like transfer but difference since it is common law motion to
dismiss and can only be brought by the parties (not by court, unlike transfer). (2 cases ever Gulf Oil/Piper).
It eliminates it from federal court system altogether because litigating in federal court system is insensible
even though all 4 things (PJ, notice, venue, SMJ) exist. Court can only dismiss it with instruction to refuel. It
can be used to get to different state, but it is usually used to dismiss, saying it should be refilled in foreign
country.. Federal courts have no authority to force case into foreign system without refilling, so thats why
its a dismissal.
i. TEST:
1. Is there a valid alternative forum? (to foreign court) ---- reverse forum-shipping by D.
Almost always an international court and never another federal court. Even if the move is to
slightly less favorable place for the P, court can still grant motion to dismiss for forum non
conveniens.
2. Reasonableness private/public interest factors (Piper)
a. Private interests: more focused on litigants in particular case, relative ease of access
to sources of proof, evidence, and witnesses.
b. Public interests: court efficiency, choice of law, jury not being confused, local
interest in having localized controversies decided at home.
Piper Aircraft v. Reyno: grants aircraft company Ds motion to dismiss for forum nonconveniens since Scotland
is proper place rather than PA.
i. Facts: Plane crashed in Scotland. 5 died and their P brought wrongful death suit against Piper in CA
state court. D moved for removal to CA federal court, then transferred it to PA (where they had
offices, planes made there), then made motion to dismiss for forum non conveniens, arguing
Scotland was proper forum. P opposed, arguing Scotish law less advantageous to her since no strict
liability there.
ii. Holding: motion to dismiss for forum nonconveniens granted since Scotland proper place rather
than PA. P may not defeat motion for forum non conveniens by showing alternative forum less
advantageous to him. Private and public interest lean toward Scotland sice all evidence and witnesses
there.

SUBJECT MATTER JURISDICTION: Review Sua Sponte (upon its own initiative). Power and authority of
court to enter binding judgment on this kind of case, has to do with type of claims. It has to do with allocation
between state and federal courts, and unlike PJ, notice, and venue, it is NOT wiavable.
State courts General Subject Matter Jurisdiction-can hear all types of claims
i. Congress can exlude them from certain areas (patents, securities, and antitrusts: 1333 (admiralty),
1334 (bankruptcy).
ii. SMJ can help us figure out venue as well (since diversity or federal question will help you know if you
are in 1391A or 1391B.
Federal Courts Limited Subject Matter Jurisdiction. Article III articulates federal judicial power, says SC is
required but it is up to Congress to create lower federal courts. Federal courts have original SMJ in two
places:
i. Federal Question: Arises Under 1331-District courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treatises of the US (federal laws). Must be part of
Ps actions (cant be in anticipation of a defense)
1. Well pleaded complaint rule-does a federal question arise on the face of the complaint (cant
be in anticipation of responses/defenses)
2. Su a Sponte-Federal governments obligation to patrol SMJ borders (Motley)
a. Motley-FACTS/PP: A congressional statute made rail-road passes illegal and RR
refused to renew Mottleys passes. Motleys held them b/c of a previous settlement
when injured riding RR. Federal courts granted them relief, and they filed action in
federal circuit court for western dist. of Kentucky (but contract law=state law!). Ps
and Ds both citizesn of Kentucky so no diversity. Ps tried to establish federal
jurisdiction by claiming D could raist constitutional defesne as answer.
b. HOLD: No federal jurisdiction since no federal question since it doesnt arise on
the face of the complaint must have a well pleaded complaint. no SMJ
3. Why have federal question jurisdiction?
a. Expertise-federal courts could be better at federal law
7

b. Consistency-more uniformity among federal judges

c. Supremacy
ii. Diversity 1332-like federal question, is connected to Article III, but Congress limits the scope of
federal judicial power by statute. Unlike federal question, about state law (includes torts/contracts)
Two Part Conjunctive Test:
1. Amount in controversy over 75kCongress raised this because of inflation and to
reduce docket pressures/caseloads
a. Ask what is P reasonably seeking? D can challenge the amount allege by the P, but
Ds have to show to reasonable certainty that it is not that amount
b. If P claims more than 75K, but wins less than that, court can charge the difference
to the P (this decreases amount of claims). 1332(b): If the winning is less, the court
can get it.
c. Complications:
i. Lots of cases dont just involve money damages, many ask for injunctions
which are hard to quantifythen they try to guess the value.
ii. Aggregation: Individual P can aggregate multiple claims against an
individual D, can add claims together using Supp.J.
2 Ps cannot aggregate their individual claims against same D
If one P satisfied 75K, others can piggy back along
2. Diversity of Citizenship (req. complete diversity we go over Article 3/ need complete
diversity across the v.). 1332 statute requires complete diversity, but constitution Article III
requires only minimal diversity). Policy motivation for diversity: Neutrality and anti-bias,
fairness. Protects against biased juries, but doesnt protect against biased legislatures.
a. Ways to get in:
i. 1332 (a)(1) Citizen v. Citizen (Citizens of different states) (ex. NY v. AL)
Redner: time of the filing rule/ not filed correctly
ii. 1332 (a)(2) Citizen v. Alien (Citizens of a state and citizens of foreign state)
Redner: citizen residence. P not citizen of France.
iii. 1332 (a)(3) Citizen (+alien) v. citizen (+alien) Citizens of different states
against each other AND foreign citizens on both sides (foreign citizens can
only be against each other if there are citizens of different states on both
sides of the v)
iv. 1332 (a)(4) Foreign State vs. citizen of a US state (ex. Germany sues me)
b. Redner: No diversity. P filed complaint in NY fedl court, alleging that he was a
citizen of US residing in France and that Ds are residents of NY. D moved to
dismiss for lack of SMJ, saying residency in foreign country does not equate with
citizenship of foreign country, as required under 1332(a)(2). HOLDING: For
diversity jurisdiction under 1332(a)(2), controversy must be between citizens of state
and citizens of foreign state, not merely residents of foreign state. P is citizen of
US, not France, so no diversityno SMJmotion to dismiss granted.
c. Individuals are citizens of one state
d. Corporations have 2 citizenships (like PJ) in state of incorporation and principal
place of business
i. Principal place of business-3 options
Center of manufacturing or profit-making activities
Corporate headquarters
Combination of above 2
e. Partnerships are deemed collections of individuals and could be citizen in multiple
states.
f. Mobile individuals, we look at domiciled=physical presence + intent to remain
indefinitely.
g. Legal representative (of decedent, infant, incompetent): where person represented is
citizen
h. Resident Aliens are citizens of their place of residence, but see Saddeh
i. Saadeh v. Farouki: Saadeh (P, Greek citizen) loaned money to Farouki D,
Jordanian citizen living as permanent resident in Maryland. D defaulted on
8

loan, P sued in fedl dist. court for breach of contract (state law).
HOLDING: Grants dismissal since no diversity so no SMJ. Intent of 1332
was to allow citizen and alien to go to court, not alien and alien. Must be
complete diversity.
ii. Literalism vs. Intentionalism
Literla interpretation: OK to hear this case
Intentional interpretation: not within Congresss intentnot ok
i. Citizenship is determined at the time of filing (this allows Ps to refile cases just
under better pleading).
3. Two exceptions that cant get into federal court
a. Domestic relations (divorce, child custody, and alimony proceedings)
b. Probate (Anna Nicole Smith case)
SMJ Hypos
i. Indiana v. Delaware/Idaho on federal claim-both diversity and federal question
ii. Indiana v. Delaware/Idaho on breach of contract for 80K-only diversity, no fed question since state
iii. Indiana v. Delaware/Idaho on 2 claims under breach of contract and federal claim-SMJ for both
iv. Indiana v. Indiana/Idaho on breach of contract and federal claim-for state claim, no fed question and
no diversity since no complete diversity, so what can you do?
1. File federal claim in fed. court and state claim in state court
2. File both in state court since states have general SMJ
3. Try to get both into federal court despite the fact that state claim couldnt get there on its
ownsupplemental jurisdiction
v. Supplemental Jurisdiction - (SMJ) 1367. Federal SMJ over things that brought independently or
alone wouldnt get into federal court. State claims pigging back on core fed. claims.
1. Remember that there are other ways (break up, both state courts, etc.).Section 1367 is
different in two key ways
i. Instead of constraining, it expands the jurisdiction of the federal courts
Rose from the notion of a case, all of the legal claims that grow
from a particular eventone thing can give rise to many things
Economy efficienty for courts and parties (do it once instead of
twice)
Avoids inconsistent judgments (legitimacy concern)
Treating them all at the same time prevents preclusion problems
where parties race to get judmgment in more favorable forum first,
to affect the other.
b. It is not independent like 1331 (federal question) or 1332 (diversity) to get into
federal court, it almost always follows 1331
c. 1367: Ion any civil action in which district courts have orig. jurisdiction, the district
courts shall have supplemental jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that they form part of the same
case or controversy.
i. You can only supplement things that are there with things that are related
enough
TEST: 3 Elements
2. STEP 1: Anchor/Hook is any part independent (via 1331)? Some claim that gets into
federal court on its own (focus is on federal question)
3. STEP 2: Relation/Common Nucleus of Operative Facts- If there is anchor, there must
be connection/relations. Are claims in federal court dependently and sufficiently related?
Are they part of same case or grow form same event or series of events?
a. Ameriquest Mortgage: Skanes P claimed house appraise D inflated value of her
property to increase loan amount and increase Ameriquests other D potentital
profit. She field federal claim under Truth in Lending Act, and alleged state fraud
claim. D Trevino moved to dismiss state law claims.
b. HOLD: Supplemental jurisdiction is proper where there is sufficient nexus between
state and fedl claimscourt already had jurisdiction over fedl claim, so it has supp
jur. Over state claims since they are factually connected to fedl claim. SMJ over
9

4.

5.

6.

7.
8.

TILA (federal) claim and no SMJ over II/III over fraud (state), but suits of each will
effect another. If court dismissed state claims, it might have been unable to grant
the full measure of relief Skanes sought in her federal claimSJ
c. Applying broadly or narrowly?
STEP 3: Discretion - Courts have discretion not to hear claims in federal court under
1367C. Can decline if there is:
a. 1367(c)(1): claim raises a novel or complex issue of state law - Szendry
b. 1367(c)(2): state claim substantially predominates over the claim or claims over
which the district court has original jurisdiction. - Szendrey
c. 1367(c)(3): The district court has dismissed the state claim or all claims over which
it has jurisdiction
d. 1367(c)(4): In exceptional circumstances, there are other compelling reasons for
declining jurisdiction.
Example: Szendrey-Ramos v. First Bancorp
a. Facts: Szendry finds bad conduct and gets fired for uncovering it. She files for
Puerto Rico state laws and Title VII fed employment.
b. HOLD: There is no supplemental jurisdiction because under 1367c1, state claim
raises novel and complex issue of state law and under c2 state claim predominates
(in # and scope). b/c of attorney/client state bar matters, no supplemental
(1367(c)1+2). Since courts in Puerto Rico hadnt decided how legal ethics rules
applied to Ds situation, court didnt want to decide this case.
Example: P (Ca) v. D (CA) on copyright claim (federal law and breach of contract (state
law). There is no diversity since both from same state, 1331 is only satisfied for copyright
claim). Federal courts can have jurisdiction over state claim since there is a hook, and
depending if they ocome from same case based on same facts.
1367(d): Statute of limitations stops while SJ request is pending and for 30 days after that
1367(b): diversity: if your only hook is diversity, you cant add other non-diverse 3rd parties.
You cant wait for other parties to come in and then say now that youre here, Im going to
sue you too. This statute tries to get a end the runaround to 3rd party (not on test)
a. CA v. Co and you only have diversity then CO adds CA so its now CA v. CO and
CA, cant sue CA unless there is SMJ in that single suit on its own

REMOVAL 1441 - StateFederal Defendant second guessing the Ps choice of forumthe relocation of
a case from state trial court to federal trial court closest to the state court and in that district. Once you
remove case, then can transfer, but first remove to closest federal district court. When there is removal,
assume venue exists.
i. Test-2 Elements
1. Recipient federal court has original SMJ over the case-2 options
a. Federal Q=hook for removal=removal OK
b. Diversity-hook for removal=removal ok only if no D is a resident in that state
i. Rational: purpose of removal is to prevent bias against Ds
2. Recipient court is the federal district that engulfts the original state court
ii. Process of Removal2 steps
1. 1446: D files a notice of removal in state court (not a motion, all Ds have to agree). Must
notify state court and the parties. Filing a notice of removal is not consent to PJ. First thing
you do when you get to district court is file a motion to dismiss for lack of PJ.
a. Time Limits
i. Federal Q: D can remove within 30 days after receiving service of process.
***1446(b): If D wants to remove a case, D has 30 days from
commencement of action (service). After 30th day passes, D cant remove
it. But if 30 days passes and it wasnt removable but on day 40 or up until a
year something changes that makes it removable then you have another 30
days after that change to file for notice of removal)
ii. Diversity: D can remove within 1 year after federal SMJ over case
established (1332)
These time limits try to force Ds to make removal choices quickly
10

iii.
iv.

v.
vi.
vii.

viii.

2. 1447: Can be Remanded.

a. Option 1: P can challenge removal (at federal court) through motion to remand
(taking it back to court it came from)
i. P has 30 days to challenge that removal procedure itself was invalid
ii. P can challenge SMJ at any time
b. Option 2: 1441c-Court can monitor SMJ via sua sponte or on grounds where state
law predominates
1441(a): Removal is only proper when the federal court would have had original jurisdiction anyways
under 1331 (federal question) or 1332 (diversity)
1441(b): home state defendant rule- under diversity, D cant be from same state as case.If removal
is federal Q, no problem, but if you are trying to remove on basis of diversity, you ave to show that
none of the Ds are from that state.
1. Why wouldnt we allow home state Ds? If the purpose of diversity is to protect Ds from bias
of state courts, if D is from the state court state, we arent worried about them.
1441(c): When on D files a notice of removal, whole case goes district court decides which claims
wont;
Why allow removal? Because we believe in 1331 and 1332, either that D should have federal question
case heard in federal court, or if there could be bias, that diversity claim is heard in federal court.
Caterpillar, Inc.:
1. Facts: Lewis P in bulldozer accident sues 2 Ds (manufacturer of bulldozer Caterpillar-DE
corp with pl. of bus. In Il and service company, Kentucky corpo). Case removed to federal
dist. court at Caterpillars D request even though no complete diversity of citizenship among
parties. Lewis P moved to remand to state court for lack of fedl jur.., arguing that dist.
court did not have jur. at the time of removal. Holding: Removal is fine. Lack of SMJ at
time of removal is not fatal to later adjudication of caseonly issue is whether there is SMJ
at time judgment entered, and here, when judgment entered, complete diversity did exist, so
there was SMJ to adjudicate case (in favor of Caterpillar D).
2. Exception to the time of filing rule-- its okay if its cured by the time the case goes to jury
trial. If district court hears removed case b/c of erroneous diversity SMJ, but defect is
cured before judgment b/c hinging party drops out, then removal was valid. This is
different than Saadeh where the court looked at the time of filing.
Original SMJ but no Removal Option
1. Sometimes a case can get into federal court originally, but not through removal
2. Example: P from CA sues D from NY in NY over state claim
a. Original case-can sue in federal court because of diversity
b. Removal-cant remove to federal court because their basis for federal SMJ is
diversity, and D is being sued in home state

SECTION 2: ERIE Comes via Diversity(1332) or Supplemental (1367). When a federal court sits in diversity jurisdiction,
what law does it apply?
I.
How is Erie different than other things we have discussed?
i. Erie is not about the exercise of power, rather it is a law question, and specifically what law. It is a Q
that comes after the preconditions.
ii. Its connected structurally in that it picks up on separation of powersinteractions of state and federal
governments
iii. Its about choice of law (like in BK)
iv. Its connected analytically with SMJ (in particular with diversity and supplemental)
v. *Erie doctrine concerns federal courts addressing diversity or supplemental jurisdiction cases. Erie is off
the table if federal courts are addressing federal Q.
II.

First ask: What choice of law does the state have (lex loci, lex flori or lex domicilli), and then compare that law to
the federal law. Is there a conflict? -- 1652 laws of several states must apply. When discussing Erie, courts apply
1652, which says that laws of the several states, except where the Constitution or treatises of the United States or
Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of
11

the United States, in cases where they apply. When courts addressing questions of state law, they apply the laws of
the states. What this means has changed over time.
Swift v. Tyson (1841): laws of several states does not mean case law, state law not binding, federal common law
appliessays state court opinions are not laws.
i. Fed. Court can deduce federal common law from statutes.
1. Problems with Swift:
Allows a lot of forum shopping: Black and White vs. Brown and Yellow: Brown and Yellow
Taxicab had contract to keep Black and White out of the market and Kentucky state
courts had said that monopoly contracts like that were illegal. Brown and Yellow have
no way to get it into federal courts since no diversity (both from Kentucky), so they
move to Tennessee to get diversity to get into Kentucky federal court since then federal
court wouldnt have to apply state Kentucky law under Swift and court can enforce this
contract, which the federal court did. (this is forum shopping that helped them).
Inequitable Administration of the Law: dramatically divergent answers from courts just
across street from one another (if one is state court and the other is federal court)
Allows for general law, federal court independence, allowing too much federal intrusion
on state power and separation of powers problem, allowing courts to make law in ways
Congress couldnt.
2. The Erie court calls Swift unconstitutional.
Erie Railroad v. Tompkins: laws of several states includes state common law.
i. Facts: Tompkins from PA was walking feet from train tracks, as train passed, open door hit him,
knocking him under train, severing arm. He brought suit in fedl dist. court of NY (fel court answering
question of state law since tort). Erie RR was NY corp so PJ, and SMJ since diversity. D wants PA law
to apply since under that law, Tompkins was trespasser and RR only liable for wantonnegligence. P
wants general federal law (as under Swift) to apply since P would be licensee and only have to show
ordinary negligence.
ii. Holding: Swift is unconstitutional since it violates federalism (allowing fedl courts to invade sovereignty
of states) and separation of powers (allowing fedl courts to make general law ehre Congress couldnt).
Justice Holm rejects the notion of federal general common law and is a move from Natural Law
(brooding omnipresent) to Positivism. While fed courts may apply their own rules of procedure,
substantive issues must be decided with applicable state law (usually state in which court sits). Court
must follow PA case law (willful negligence), which would deny recovery for P Tompkins.
iii. Rule: No Federal general common law, must respect state (federalism). When federal courts are
answering questions of state law or supplemental, they have to figure out which law applies through
choice of law opinions, and then look at state constitutions, statutes provisions, and do what state law
says.
iv. Choice of Law-Erie requires federal courts to follow state choice of law rules. States have choice of law
rulesstandards for which law to apply in particular cases (often in court decisions or in statutes
1. Many states adopt a lex loci approach, the law of the location of the event.
2. Some have lex fori-the law of the forum
3. Some have lex domicile-law of the domicile of one of the parties
4. Most of these choice of law provisions are default rules (courts can negotiate away from them
by contracting.
v. Justice Reeds Concurrence: The line between substance and procedure is hazy.
vi. *Interests are countervailing: We want uniformity of decisions but we want federal courts to be
somewhat different and the tests for this evolve over time.
THEN ASK: Codified? Is the federal rule codified? Mention Erie and the blurring of lines according to Justice Reed.
III.

Non-Codified Rules (common law) Apply Byrd:

Byrd does 2 things
i. It rethinks York
ii. It creates new type of test, not just thinking about outcome determinative test anymore but creates 2
step analysis
1. Define State law
Is it about form and mode/procedural?
12

IV.

If it is about rights and obligations/substantive/duties in real world apply State.

2. If its about form and mode, do balancing test of
Federal interest (in Byrd it is constitution 7th amendment right to jury)
Outcome determinative test (York)
Byrd case
i. Apply the Byrd Balancing Byrds balancing test: federal interest vs. outcome determinative test.
1. Federal Interest: Byrd: Byrd injured while on construction job for D and sued in tort.
Whether he is an independent contractor (can sue for tort) or statutory employee (workers
comp). and who decides (judge or jury). D wants fed law (requiring jury) and P wants judge
(state South Carolina law) and fed court holds that jury is essential to federa law (constitution)
so D has right ot jury under 7th amendmentfed courts dont have to apply state law here
because 2 part test (federal interest v. outcome determinative-says judge/jury question is not
outcome determinative)
2. Outcome determinative: Guaranty Trust Co. v. York: P sued Guaranty Trust in fedl diversity
action about bonds alleging breach of trust (state issue). Case filed in fedl NY ocurt since
statute of limitations had run in state court. D asserted defense that limitation had run, and P
argued that it did not bar suit since in federal court (since it was procedural). HOLDING:
Federal court bars P suit since state statute of limitations has run and fedl court must apply
state law since application of state rule would change the outcome of case (dont ask if it is
procedural/substantive.)
3. Byrd holding: Use federal law when form and mode rule involves enough federal interest. The
court decides it was a question of form and mode vs. rights/obligations. Federal law wins
in this case since jury is a big deal (strong federal interest rooted in 7th amendment) and the
outcome might not change by applying federal law (jury) instead of state law (judge)
Semtek: has more outcome determinative than federal interest. Vertical consistency
over horizontal.

Codified Rules apply Hanna (de-constituionalizes Erie):

Ask
i. Is there a conflict between federal and state law? Yes.
ii. Figure out what is on either side of the conflict. Does the issue in conflict comport with the relevant
statute? i.e. Ask what the relevant statute is: Rules Enabling Act (Hanna) or RODA?
Do
Hanna
2 part test

i. Does the rule of federal civil procedure fit under the Rules Enabling Act (is it really procedural?) (Court
says in Hanna Rule 4 about service is procedural). This is a statutory question Hanna deconstitutionalized the Erie issue.
1. 2072: Rules enabling act: allows federal courts can make federal procedural rules except
2072(b) but cant be substantial)
2. No Rule has ever failed to satisfy the Rules Enabling Act
3. 1642: State Rules of decision act What is laws of several state (Swift tries to answer).
ii. Is the procedure specified in the rule constitutional? (Erie) Will it create Erie concerns?
1. Avoid Forum Shopping
Black and White vs. Brown and Yellow: A contract case (KY says the contracts are invalid).
They instead sue in TN and get into federal court to get the opposite decision.
Court says in Hanna people wont organize litigation around who will answer door for
servicenot an incentive to get into or out of state court
2. Avoid inequitable administration of laws.
i. Seemtek: see below
ii. Hanna: In div. suit for personal injuries (state issue), Plumer D represented
estate of one of the drivers involved in fedl court. MA law said suits required
personal service of process on estates of executor, but process instead served
under Fed Rule 4e2b, which allowed for complaint to be left with competent
adult at Ds residence. HOLDING: Federal law on service of process trumps
state law since it is slightly procedural. Erie doctrine mandates that federal
courts are to apply state substantive law and fed procedural law, and where
both could apply, Const. grants federal court system power to regulate their
13

practice and pleading. Court rejects the outcome deteriminative test (York)
and asserts that any rule must be measured against Rules Enabling Act (says
federal courts can make rules of procedure as long as not substantive) and
Constitution. The Court (service of process) thought wouldnt get different
answer and that that this issue passed the test and was reversed.
iii. ***If the rule passes both above i and ii questions, then it must be applied even if it differs from state
practice in significant way. If the rule fails either test (not procedural or not constitutional) then state
law applies. Every time a federal rule has run through Hanna test, federal rule is applied!
V.

Justice Harlans Concurrence from Hanna helpful tool. When deciding whether something is substantive or
procedural, ask if the choice of rule substantially affects those primary decisions respecting human conduct which
our constitutional system leaves to state regulation. Things that happen in real world are primary (substantive/rights
and obligations) and things that happen in court are secondary (procedural/form and mode).

Swift: contract defenses are primaryfollows state law

Erie: where you walk/railroad tracks are primaryfollows state law
Hanna: service of process is secondaryapply federal law
Byrd: jury is secondaryapply federal law
York? About statute of limitationscourt said apply state law but this is hard case

i. belowSemtek P sued Lockheed D for breach of contract and torts claims.

Removed to fed court in CA, then action dismissed since it was barred by CAs
2 year statute of limitations. Semtek P filed same claims in state court in
Maryland, which had 3 year statute of lim. (Fed Rule 41 says you cant refile)
Maryland dismissed on grounds of res judicataMaryland court of appeals
affirmed, but CA law said dismissals based on statute of limitations ground you
can refile in other court, but federal law gives preclusive effect, saying cant
refile. HOLDING: State law here did not ban refilling in other state, so P
could refile claim in Maryland state court. State rule of claim preclusion
applies to dismissals ordered by either state or federal courts, except where
state law is incompatible with fed. interest, and there is no conflicting federal
interest here--Scalia says rule 41(b) doesnt apply.

Seemtek: state law applies

FACTS: Semtek P filed for breach, business torts in Cal. State court, removed to federal courts, Dist Ct. dismissed for
expire statute of limitation. P then brought suit in MD state court, then removed to MD D. Ct.
ISSUE: Federal law says preclusion (cant refile), and CA law says no on preclusion (refilling allowed.).
REASON: The codified rule on the issue 41(b), Scalia says isnt codified. It would fail the Hanna test, so Scalia goes
through Byrds analysis. He decides that since its form/mode, the Byrd Balance test goes with Vertical consistency
(sacrifice horizontal consistency). State rule of claim preclusion applies to dismissals ordered by either state or federal
courts, except where state law is incompatible with fed interest, and there is no conflicting federal interest here, so rule
41B doesnt apply, rather rtate law is applied.
HOLD: State law here does not ban refilling in other state, so P can refile claim in Maryland state court.
Affects of Semtek-apply state law
If claim is dismissed in state or federal court, CA and federal courts are consistent (consistency between state
and federal court in that state)
Federal decision in diversity case in CA may have different decision than federal decision in different state (no
more consistency between federal courts)
Federal courts are supposed to do what state courts would do in X case, but what if state courts havent
answered this before? Federal courts are supposed to try to predict what state courts would do. If court
predicts wrongly, losing party can use Rule 60 to say the law has changed, this judgment cannot be sustained,
I want to reopen case. Or court can send certified question to state supreme court (federal courts cant do
this) but most of the time state courts wont answer and arent given the factual contexts of the questions

14

When you think about Erie

1. Federal court answering state law question sitting in diversity
2. Have the parties signed a choice of law agreement? Yes then apply state law (asking if consent can be justified see
Carnival and BK. If No, then ask next question.
3. Is there conflict between state law and federal law in particular case (only need conflict on the fact you are presenting).
Ask what is on the federal side of the conflict. If no conflict then you follow the federal rule and youre done.
4. Ask whether to apply Byrd (common law, not codified) or Hanna (codified) (it is harder for federal rule to prevail
under Byrd)
a. Byrd-Is it common law federal rule, something courts do, in practiceapply Byrd (Byrd was about juries)
i. Define state law-if about rights and obligations (substantive) apply state law, if about form and mode
(procedural), then
1. Balance state interest v. federal interest
2. Outcome determinative test
b. Hanna-Is the federal law codified? (like in Federal Rules of Civil procedure)apply Hanna (federal rules
have always survived under Hanna)
i. Rules Enabling Act-Ask if federal law is procedural or substantive (has to be procedural)
ii. Erie/Constitutional
1. Will it cause forum shopping?
2. Will it cause inequitable administration of laws

15

SECTION 3: INCENTIVES TO LITIGATE

I.

II.

III.

IV.

Shift away from the American Rule:

a. Who pays for litigation?
i. American Rule: each party pays its own fees unless frivolous claim or answer
1. Except: contract situpuation, CL (bad faith suit, or by statute civil rights sue).
ii. British Rule: losing party pays the attnys fees of both sides.
b. Weve inched towards the English Rule.
c. Rule 54(d)(1) slightly discretionary- costs (not attorneys fees) should be allowed to the prevailing party.
d. Rule 68(d) to encourage settlement. If P wins less than the settlement offers, P pays for Ds costs after the
offer.
The divide between substitutionary and specific remedies represents historical divide which has been eliminated
through Rules 1-2 of the FRCP.
a. 2 courts in England2 types of remedies
i. Courts of Common law: legal remedies$
ii. Courts of Equity (Chancery): equitable remediesinjunctions
b. Rule 1 of FRCP collapses this distinction. Federal district courts have the power to administer both of these
types of remedies, often in the same case. You are only supposed to get injunction (equitable relief) if legal
remedes are inadequate and the harm is irreparable (money just wont do). Injunction can be harder to get
since you have to prove that legal relief $ wont do.
Fee Shifting what is prevailing party
a. Settlements? no: Evans v. Jeff D (1986)-settlement that waives attys fees approved
i. Facts- Atty represented emotionally disturbed kids seeking injunctive relief from state of Idaho to
improve their treatment. Atty accepted settlement in civil rights case that granted P class generous
injunctive relief, but denied atty his statutorily authorized attys fees. Legal Aid argued atty forced to
accept settlement to get best relief for clients and that court had duty to reject settlement. stipulated
no fee shifting even though statute said must pay fees.
ii. Finding-District ct was correct to accept settlement per FRCP 23 even though deprived atty of fees
in civil rights suit. Fees act applied to prevailing parties, Ps attorney had to waive fees he was
entitled to under the Fees ActP is prevailing party when he secures settlement
iii. Why ethical conduct, same pockets (the state of Idaho)
b. Catalyst theory (voluntary changes by the D)? depends. Yes in CA, no in Buckhannon
i. Facts- P operated assisted living homes, ivolates state reg that required resident to be sufficiently
ambuilatory to get out of burning building. P got cease and desist order from state requiring its
closure, and P brought suit, seeking declaratory and injunctive relief that the requirement violated
federal housing and disability statutes. West Virginia leg. then enacted legistlation to eliminate the
self-preservation requirement, mooting Ps case. P then requested attys fees as prevailing party.
ii. Holding: No shifting of fees allowed since catalysts of change are not prevailing parties. Award of
attys fees/costs to prevailing party under fed statutes may be awarded only to a party who has
secured a judgment on the merits or court ordered consent decree.
REMEDIES
Substitutionary Remedies
o Compensatory
o Liquidated
o Statutory
o Punitive
Specific Remedies
o Injunctions
o Other
a. Substitutionary Remedies a replacement of the loss/harm. Aimed to give P adequate and appropriate
placement/substitute for the loss of the harm (ex. Get money to buy a new car). Money is fungible, often a
substitutionary remedy. Legal Remedies.
i. Compensatory Damages-to make you whole, compensate you for the harm
1. Economic damages money damages that are almost always easily quantifiedsalary lost,
bills have to pay (does not include attorneys fees)
16

2. Non-Economic damages money to compensate for pain +suffering, emotional distress,

loss of consortium, loss of partnership, harm to reputation, etc.
a. Problematic since harder to calculate
ii. Liquidated Damages
1. Amount agreed by parties via a contract for its breach. Preset damage awards often built
into contract, typically only available when actual damage award is difficult to calculate.
iii. Statutory Damages: where statute sets the amount of damages
1. Some statutes use floors or ceilings (caps) and some use both.
iv. Punitive Damages- damages to punish and deter the offense/defendant, not to compensate P
1. Specific Deterrence: deter this specific D.
2. General Deterrence: deter others in a s similar position.
3. Concerns: lottery like, too high, too predictable.
a. Windfall to P-nondeserving P receive huge punitive damages award after already
made whole by compensatory damages. Solution? In CA 75% given to state.
b. Punitive damages are often excluded from insurance (people wont be deterred if
someone else is paying the bill)
c. Astronomical figures, can be very high. Catch 22: If you get huge compensatory
damages, you dont need as much punitive damages, but if you get low
compensatory damages, you wont get much in punitive damages since it is single
digit ratio.
4. State Farm v. Campbell (2003)
a. Cambells insurer, state farm D, refuses to settle case for 50K and takes case to trial
where jury determined Cambell 100% at fault, judgement of 185K against Cambell.
D refuses to cover Cambells excess liabilityinjured parties and Cambell P join in
bad faith action against D. D then appeals $145 mil of punitive damages on a $185
K claim, arguing that excessive punitive damages violate the 14th Amendment.
b. Hold: Punitive damages excessive. Court uses 3 guideposts from BMW of North
America v. Gore in considering punitive damages Due process limits:
i. grossly excessive standard: disparity between punitive damages in this
case and statutory limitations for similar cases
ii. Degree of reprehensibility of Ds conductstatefarm not very
reprehensible. Trickery or deceit would make it more reprehensible.
Consider factors like whether physical or just economic harm, does it
involve trickery or deceit, does Ds conduct target the vulnerable, reckless
disregard to health and safety of others.
iii. Ratio of actual compensatory to punitive: single digit ratio between
punitive and compensatory, up to 9x.
5. Texual Problem with ratio rule: not due process. Nothing in U.S. Constitution says anything
about punitive damages, nor does due process clause. It would make more sense to turn to
8th amendment (cruel and unusual punishment) but court instead looks to due process.
6. Empirical problem: Data isnt perfect--punitive damages are not common nor unrestrained.
Rather theyre decreasing.
7. Theoretical Problem: how does single digit ratio help deter? Must be large to deter.
8. Practical Problem (huge): not needed when you have big compensatory award (crt says).
b. Specific Remedies Equitable relief. Mobilizes the power and authority of a court to tell a party to do
something often to restore the status quo by delivering what was promisedcan require performance of the
contract or to give you item back. Seeks to restore directly and specifically that which D has taken from the
P, seeking specific performance of the contract (ex. get car back). Usually done via an injunction. In
contract, getting someone to live up to their side of contract is specific remedy and in landlord tenant context,
getting someone to move out is specific remedy. Replevin is court order requiring sheriff or marshall to
return an item to its woners. $ before injunctions because injunctions are harder for courts and more
intrusive to parties, infringing on autonomy and liberties.
i. Historical Background British court systems
1. Courts of Common Law legal remedies.
2. Courts of Equity (Chancellery courts) equitable remedies (injunctions)
17

ii. There are collapsed into one. Rule 2 (or 1?): there is one form of action- the civil action". Federal
courts have the power to administer both types of these remedies, often in same case.
iii. Injunction: order from a court telling a party to do something or stop doing something. Most
common type of equitable relief, enforceable by contempt proceedings leading to fines or jail.
Courts regularly deny injunctions since either legal remedy is adequate, Ps harm not irreparable, or
too much hardship for D.
1. $ before injunction since injunctions are more intrusive to parties, infringing on autonomy
and liberties and
2. Injunctions are harder for courts.
iv. Permanent injunctions-(Sigma chemicals case)-order from court that comes after trial, after
determination of the merits and when you are entitled to legal relief.
1. Sigma Test for when you can get injunction: First look to see if the contract is validif it is
reasonably constrained as far as its geographic and temporal scope, then must meet 2
conditions for permanent injunctions to be appropriateneed both.
a. Would $ be inadequate/would P suffer irreparable harm without injunction? There
is no adequate legal remedy ($ just wont do). D cant write check or hard to
calculate how much check would be.
b. Balance of hardships-party who wants injunction and wouldnt get it v. party who
doesnt want it and gets it
2. Contents-3 requirements-Rule 65D-injunctions of all types are supposed to be as specific
and detailed as possible.
a. Reasons why issued
b. Specific terms
c. Acts restrained/required in reasonable detail
3. Sigma Chemical Co v. Harris
a. D (Harris) possessed imp knowledge, and works for Ps competitor, helping it find
new sources of various chemicals. His contract w/ Sigma had non-compete and
non-disclosure clauses. P Sigma sues D Harris for breach of empl. Contract, seeking
permanent injunction.
b. Hold: Injunctive relief granted. Hardship to Sigma is significant and strong threat
of irreparable injury to Sigma Harris cant work for ICN for 2 yrs + give secrets.
The main prerequisite of obtaining injunctive relief is a finding that P is threatened
by some injury for which he has no adequate legal remedybalance interest of the
parties (hardship on P if relief denied as opposed to hardship on D if granted).
c. Policy: Court hesitant. Rule 56(d)(1) contents of the injunction (reasons, terms,
detail)
4. Ex. I am blooms neighbor and dont like his lights display, cant sleep and no money that he
can pay that would satisfy my need for sleep. Legal (substitutionary) remedies wont work,
so need court order telling him to take it down. If I get injunction and he doesnt take it
down/stop action, I can go back to court and court can hold him in contempt by 1) fining
him 2)jailing him or both until he complies
v. Preliminary Injunctions: often a decisive decision on small evidence, order that comes before trial
and can come when you file complaint (invasion even more of a concern here). An order issued by
the court before adjudication on the merits at the commencement of an action, requiring a party to
refrain from conducting a specified activity that is the subject of the controversy, until the matter is
determined. Some harms/risks are so great that courts need to step in even if court has yet to
determine the merits.
1. Immediate Appellate review (1292A), ask for as early as day of filing
2. Problem-Its all or nothing-big decision based on little info, happens before discovery, courts
say they arent decisions on merits but they really are and could be final, decisive decisions.
Also informs settlement.
3. How alleviate problem? Courts allow immediate appellate review (1292a) and use
standards/tests that give courts lots of discretion. Standard of review: abusive discretion.
4. Test-2 options
a. Inglis I Test-4 Elements (district court)
i. P will suffer irreparable injury if injunctive relief not granted.
18

ii. P will probably succeed on the merits

iii. D will not be harmed more than P would be helped by preliminary
injunction (balance of hardships)
iv. Granting injunction is in the public interest
OR
b. Alternate Inglis II Test-2 options
i. Probable Success and possibility of irreparable injury or
ii. Serious questions and balance of hardships tips sharply in Ps favor (sliding
scalethe more likely you are to win, the less you have to show irreparable
harm. The more irreparable harm, the less you have to show that you are
going to win. )
1. More serious Q, less hardship; less serious Q, more hardship
iii. No public interest component)
c. Contents-As with permanent, Rule 65D has 3 requirements
i. Reasons why issued
ii. Specific terms
iii. Acts restrained/required in reasonable detail
5. William Inglis vs. ITT (1976)
a. Inglis P sued for prelim. Injunction against ITT and other bakers in antitrust action,
arguing bakers underpricing bread in short term to get competitors out.
b. Holding: Inglis could get prelim. Injunction-Reviewed under the standard abuse of
discretion: District court applied Standard 1 and denied relief saying P would not
probably succeed on merits, but this court says should apply the alternate test too.
Reversed and remanded.
6. Southwest voter Registration: All or nothing dilemma
a. Facts: In a voter fraud case about the CA recall election, P fileds suit alleging that
planned use of punch cart balloting machines in CA recall election violated EPC
and Voting Rights Act, asked for preliminary injunction to delay election until it
could be conducted without use of pre-scored punch card.
b. Holding: Court rules that since P probably wont win (hardship is too much on
state resources/voters), district court decision was right to deny preliminary
injunction (elections go on as planned).
7. At most, PI can force someone out of business, at least, it can force settlement.
c. Declaratory Relief-Rule 57-neither damages nor a specific remedy can solve the problem. Parties seek a
declaration of their rights without any coercive relief such as damages or injunction. Unlike equitable relief,
which is available only in the absence of adequate legal remedies, declaratory relief may be chosen by a party
even though other avenues open to her. But declaratory judgments raise 2 problems for federal courts.
i. Line between a hypothetical case and a concrete factual controversy.
ii. Jurisdictional problemsaction for declaratory relief does not fit comfortably inside the idea of the
well pleaded complaint rule. If either party could state a claim for coercive relief that would arise
under federal jurisdiction, then an action for a declaratory judgment will arise under federal law.

19

SECTION 4: PLEADINGS-documents that get the litigation rolling

I.

Background
A. 3 types of pleading regimes:
i. Common law writ pleadings: used for centuries, reflects division between law and equity, goal was
to plead your way into particular side of royal jurisdiction, narrowing down the issue to fit as a writ
(there were specified # of writs)
1. Benefits-very rule based, easy to apply, predictable, straightforward
2. Cost-highly artificial, inflexible, hard to plead harms into fixed # of existing writs
ii. **Code/Field/Fact Pleadings (CA courts still use fact pleadings)-Collapses distinction between law
and equity, gets rid of focus on writs and instead focuses on cause of actionabout pleading enough
facts to show you are entitled to relief. Requires great deal of fact specificity at the very beginning.
Problem: P doesnt always have all facts he needs to be as specific as court wants him to be.
1. Twombly pushes it into this fact pleading context
iii. Notice Pleadings-used by federal courts, adopted by FRCP and majority of states. All Rules require
are short and plain statement of the claim that gives D fair notice of what Ps claim is and its grounds
(Conley)
1. Easier for Ps since dont have to have facts initially and dont have to squeeze your way into
existing writs
2. Policy rationale-initiates litigation. Provides notice of the nature and grounds of the claim,
influence judge at outset, influence or shape settlement by revealing weakness
3. 3 balances notice pleading tries to strike
a. Fairness to Ps and Ds-gives Ds information about what theyre being sued about,
while fair to Ps in what we hold them to know this early
b. Caseload-not too many or too few. Want meritorious claims to get through but not
frivolous ones.
c. Length of pleadings-not too long (burdening court) or too short
4. Notice pleadings are supposed to facilitate adjudication on the merits-its a game of skill!
B. 8 Types of Pleadings-Rule 7 (must know for test)-Odds are claims for relief, evens are responses
i. Complaint (claim for relief) PD
ii. Answer to a complaint DP
iii. Counterclaim (D suing P back) DP
iv. Answer to a counterclaim PD
v. Crossclaim-original D1 sues original D2 D1D2
vi. Answer to crossclaim D2D1
vii. 3rd party complaint (when you bring in another person into litigation that is not already there
almost always indemnification actions (ex. Asahi)
viii. 3rd party answer
Close ended list for pleadings (motions are not closed ended). Odd numbers are claims for relief, evens
are responses.
Exception: Replies-P cant file a responsive pleading to Ds answer unless court requests

II.

Rule 10 Form of pleadings (see example on pg. 340)

A. Have to caption complaint and name the parties
B. Must # paragraphs
C. May adopt by referenceif you have lots of claims that grow from same set of facts, you dont have to
restate facts every timecan adopt those facts by reference.
Claims for relief: says something happened to P that entitles him to some sort of legal remedy (an answer is also a
pleading saying he doesnt owe any relief).
A. Rule 8(a)-A pleading that states a claim for relief must contain all 3 things:
i. JURISDICTION: Short and plain statement of the claim of the ground for courts jurisdiction (must
say this court has PJ and SMJ for these reasons)
ii. GROUNDS FOR RELIEF: Short and plain statement of entitlement to relief (why P should win,
this is the legal claim, the meat of the complaint)
1. Notice pleadinggenerally only have to put the other side on notice by including enough
information to give a fair chance to respond. is it dead with Twombly?

III.

20

B.
C.

D.
E.

2. Policy: "Res Geste" - telling a story (may need to make it longer w/ judge + otherside
reading). Short and plain statement approach is rarely honored. Parties often include a lot
more to scare the other party, get them to settle and because court will read this and this is
your first chance and probably only uninterrupted chance to make your case.
3. Whats discoverable in a case depends on whats relevant, and whats relevant depends on
the content of the pleadings.
4. Conley v. Gibson: Black railway employees filed against hteir union, alleging breach of their
duty to represent w/out discrimination all employee of union (sought injunction, declaratory
relief, and damges). Ds moved to dismiss. Holding: Motion to dismiss denied. It was
wrong for court below to dismiss complaint for lack of jurisdictionCourt not supposed to
dismiss on 12b6 motion unless beyond doubt there is no state of facts where P can
prevail--Very plaintiff friendly, broad standard.
5. Bell Atlantic Corp v. Twombly: P telephone/internet subscribers allege that companies violating
antitrust laws by agreeing not to compete with each other. Court dismissed for failure to
state claim, court of appeals reversed. Holding: Motion to dismiss for failure to state a
claim granted. For complaint to survive dismissal on pleadings, it must include enough facts
to state a claim to relief that is plausible on its face (cant be entirely speculative).
iii. DEMAND FOR RELIEF(remedies-$, injunction, etc)
1. Rule 9(g)must plead with specificity if you seek relief for special damages (those that do
not normally flow from an event.
You need to do all three of these and can also demand a jury trial under Rule 38 (but not required by Rule 8).
Consistency: you can put inconsistent or alternative theories. Rule 8(d)(3). This is subject to limitations by
Rule 11.
i. Ex. You are P and youre not sure that you are independent contractor or statutory employee, so you
plead both. This works for defenses too.
ii. Why not plead alternatives?
1. Appearances-could frustrate judge or jury so at some point (at least by trial) have to choose
one)
2. Facts-after pleading is discovery, and discovery tells you which you are, so amend pleadings
to narrow the facts.
Rule 8a says nothing about enforcement, so there is rule 12b6 motion to dismiss, which argues failure to state
a claim upon which relief can be granted (that what P says in complaint doesnt entitle P to legal relief, that P
failed rule 8a2. 12B6 is the enforcement mechanism for 8A.
Challenging a complaint: If D doesnt think Ps claim is good, D can
i. File answer (if D wants time before answering D can waive service of process, file pre-answer
motion, or ask the court)
ii. File pre-answer motion to dismiss under Rule 12B (closed list)
1. Lack of SMJ-bring up anytime
2. Lack of PJ-bring up before or with answer, if notwaived
3. Improper venuebring up before or with answer; if notwaived
4. Insufficient process (whats in the pile of papers fails to specify what shes being sued for)bring up before or with answer; if notwaived
5. Insufficient service of process (piles of papers is fine, but never got delivered in the right
way
6. Failure to state a claim upon which relief may be granted
a. Allows courts to clean out frivolous claims
b. Assume the facts are true as alleged in complaint as long as not wildly implausible (P
friendly standard). Does not consider whether facts alleged in complaint are true
and does not resolve factual disputes.
c. Standards of evaluation
- Conley: dismiss only if theres nothing that can be proved that would
entitle P to reliefthis is broadthere must be no set of facts upon
which P can prevail
- Twombly: dismiss only if its extremely implausible that P can prove any
facts. Facts in a claim need to be plausible.
21

*Courts never really apply Conley since they were always screening for
plausibility anyways, so Twombly just tweaks the language. Conley was
saying take all the facts as true, and Twombly just says take all plausible
facts as true.
- We are still in notice regime.
d. What does judge do under 12B6 motion?
- Assume facts are true as alleged in the complaint (P friendly standard)
- Decide the matter of lawif the wrong P claims is not a recognized legal
rightdismissal
1. If this is P friendly standard, why do Ds file themchance of
winning, quick and easy (but not easy to get), buys time, but not a
final win
2. If D wins, getting motion to dismiss, D wins without prejudice, so
P can amend the complaint and refile. But second time case
dismissed is with prejudice (a real loss for P)
e. Timing: Dont have to bring up until trial is over
- Rationale: initially, court can only look at the facts in the face of claim
- Discovery process works people into legal box, after which theres no
claim
7. Failure to join a party
iii. Haddle v. Garrison:-SC holds that dismissal of Ps case for failure to state claim was error
1. Facts: Haddle P alleges he was fired to deter his participation as witness at federal criminal
trial and sues employer for violating fed law allowing cause of action for causing injury to
person or property for cooperating in fed investigation. D argues P was at will employee.
Ct of App affirms 12(b)(6) motion b/c pleadings did not allege P wasnt an at-will employee.
2. Rule-Complaint must allege all elements as set out by statute or case law and Civil Rights act
requires that P suffer actual injury and discharge from at will employment does not cause
actual injury.
3. Holding: Held for P. Court grants Ds 12B6 motion, court of appeals affirms saying no
injury since he was at will employee, but SC reverses, holding that fact that employment is at
will is not property does not mean that loss of employment does not cause injury, so
dismissal of Ps complaint for failure to state a claim was an error.
F. Heightened Pleading standards Rule 9 (more than what Rule 8 requires since sometimes there is exception
to the plain and short statement rule.)
i. Burden of pleading is on the D: Court is hesitant shift this without legislative action - Jones v. Block
P prisoner sued for injuries he suffered when staff refused to reassign him to work he could do in
light of his injuriesCourt held that P need not plead and demonstrate exhaustion of administrative
remedies in the complaint (that should be in affirmative defense). Court wont heighten pleading
standards. To determine the if heightened standard of review, look at:
a. Text and history of the statute
b. Related rules (rule 8(a) here)
c. Consequences
d. Precedence
ii. 3 types of burdens
1. Burden of pleading-pleading the facts and law sufficient
2. Burden of production-producing evidence to sustain the pleading
3. Burden of persuasion-convincing the trier of fact (judge or jury)
iii. Spectrum of burden of proof
1. Beyond reasonable doubt (the highest)
2. Clear and convincing evidence
3. Preponderance of the evidence
iv. Rule 9 not following rule 8(a) additional pleading standards.
1. Rule 9(a) capacity/authority of party A party need not allege a partys capacity to sue or
be sued (can do affirmative defense)
2. Rule 9(b)- Fraud and Mistake-When you sue for fraud or mistake (misrepresentation), you
have to do more than 8ayou have to
22

a.

State the circumstances of the fraud or mistake with particularity (fraud and mistake
have different damages and hurt reputations, must say when, where, who involved,
time, consequences, not just why). If P wants jury trial, must demand one here
(Rule 38)
b. Condition of the persons mind may be alleged generallyyou have to allege what
the fraud is, but not why they did it.
c. Stradford v. Zurich Insurance Co.
- P is a dentist in Staten Island, failed to pay insurance premiums. Filed for
damages against insurance company.
- Counterclaim for fraud by D against P. Heightened standards of pleading
for fraud because of the tendency of the charge to damage the accused,
regardless of its validity. P moved to dismiss counterclaim on grounds of
lack of particularity.
- Ds counterclaim lack specificity of date, time, and place. So Ds
counterclaim dismissed under 9b. Court allow D to use Rule 15(a) ability
to amend freely when justice requiresLeave to amendsummary
judgment for Ds.
d. If D doesnt file pre-answer motion or answerdefault judgment.
IV.

Ethical Limitations in Pleadings

A. Overview of Rule 11-Unlike how most rules tells lawyers how to operate the system, courts can sanction
parties for improper written papers submitted to court. Rule 11 regulates the way lawyers and clients conduct
themselves, esteablishing standards for investigation of law and facts. It is a behavioral rule embodying a
standard of professional conduct, keeping attorneys in lineit affects but does not directly regulate the entire
conduct of litigation.
i. Scope: It only covers signed written documents submitted to the court (primarily pleadings and
motionsdoes not include discovery or bad oral arguments)Mattel case
1. Pleadings: all CRGs and Answers
2. Motions: open list (can file a motion for anything)
ii. Policies for this rule
1. To scare attorneys and keep them in line
2. Dont want to waste court resource and time litigating frivolous things
iii. 11(a): Signatures-Every document you submit to court must be signed by attorney or by party if party
representing herself (pledge to comply).
-If you dont sign it, court will send it back or strike it
-Signature is a guarantee/promise that attorney complied with Rule 11B below
iv. 11(b): Attorney, by signing something, is certifying to the best of knowledge after reasonable inquiry
that he is acting in good faith, has done as much work as expected to doyou can be wrong just not
lazy or deceitful.
11(b)(1): Purpose is proper (not frivolous or to harass or delay)
11(b)(2): Legal arguments are reasonable and made in good faith only lawyers get
sanctioned says 11(c)(5) Walker
11(b)(3): Factual assertions have evidentiary support, or will after a reasonable opportunity
for further investigation (facts arent known to be untrue)
11(b)(4): Factual denials are warranted on the evidence or reasonably based on belief or lack
of information.
B. Sanctions Process2 optionsRule 11(c)Appellate standard of review is abuse of discretion
i. 11(c)(2): by partys motion. Satisfy 3 things:
a. It must be specific on what the conduct was that violates 11B (big dealbe very particular,
cuts down on excessive motions)
b. It has to be separate (can't attach it with another motion).
c. Safe Harbor provision: Before you file motion with court, you have to give other party a copy
of the motion 21 days before, giving party 21 days to self correct.
ii. 11(c)(3): Court can order sanction on its own initiative
1. Like Safe Harbor: has to issue order to show cause show cause why you shouldnt be
sancitoned
23

2. Has to give party an opportunity to respond

iii. 11(c)(4): Sanction - Almost always money, but can be injunctive relief, letters of apology, continuing
legal education. Goal: retribution and deterrence. (Crank v. Crank apology + legal education).
iv. 11(c)(5): Court must not impose a monetary sanction against a represented party for violating
11B2clients cant be sanctions for their lawyer screwing up the law, Parties and attorneys can be
sanctions for 11B1, B3, or B4, but only attorneys can be sanctioned for 11B2.
C. Walker v. Northwest Corp:
i. Facts- P filed claim in fed court in in atty failed to plead complete diversity, instead pleaded facts
that showed incomplete diversity. D wrote to P saying complaint showed there was no diversity
jurisdiction, asking him to dismiss and he would seek sanctions if not. Ps atty got it but no response.
Dist court ranted Ds motion to dismiss and sanctions against Walker and Massey, they appealed.
ii. Holding-District ct did not abuse discretion by awarding attys fees. has responsibility to research
citizenship. Poorly researched and drafted complaints waste cts time and money. Rule 11 sanctions
are appropriate for atty filing a clearly defective complaint and taking no steps to amend/dismiss.
iii. PP: 11(c)(2) motion by D -- flawed process? No Safe Harbor (D sent letter), 11(c)(5) applicable..
D. Christian v. Mattell, Inc.
i. Facts- P who created USC cheerleader dolls, sued Mattell for copyright infringement for its Barbie.
Mattell D produced evidence that its copyright predated her doll and P refused to voluntarily dismiss
after D gave her 21 days to w/draw per Rule 11; lower ct awards sanctions based on pleadings and
behavior at discovery mtg/misrepresentation to court during oral argument.
ii. Finding- Reverses b/c ct cannot award sanctions based on anything but pleadings and written
documents (not based on conduct). Must specify exact reasons for sanctions.
V.

Response: What are the Ds options when they are served with a complaint?
A. Default-You lose the case on the meritsjudgment entered against you (Rule 55)
B. File Pre-Answer Motion (not a pleading)Rule 12: within 20 days of service (extended to 60 if service waive)
i. Why? buy time, cheaper than litigating all way, easycould take months for court to resolve
ii. Rule 12(b)seven defenses can be raised either in your answer or by motion
a. (1) SMJ
b. (2) PJ
c. (3) Venue
d. (4) insufficient process (summons and complaint)
e. (5) insufficient service of process
f. (6) failure to state a claim
g. (7) failure to join an indispensable party
2. Rule 12(e)Motion for a More Definite Statement
3. Rule 12(f)Motion to Strike
4. Rule 12(g) and (h)
a. defenses under 12(b)(2), (3), (4), and (5) and 12(e) and 12(f) must be put in your first
Rule 12 response (answer or motion) or else they are waived
b. defenses under 12(b)(6) and (7) can be raised for the first time any time through trial
c. 12(b)(1) can be raised any timeyou cannot waive lack of SMJ and court can bring
it up on its own
B. File Answer: A pleading that responds to the facts and allegations, stating defenses.
i. Two ways you can respond: (Rule 11 sanctions apply to all written documents)
1. Respond to the facts alleged against you Rule 8(b)
a. Admit
b. Deny (Rule 8(b)(6) - if you fail to deny an allegation, it is deemed an admission
except damages). If you deny everything (blanket denial), and it is in bad faith, can
be sanctioned under Rule 11.
c. Disclaim knowledge Rule 8(b)(5)if you cant admit or deny something, say you
need more info during discovery. Cant demand more proof, but can file motion for
more definite statement.
d. Zielinski v. Philadelphia Piers, Inc.
i. Facts: P sues for injuries by forklift operated by Sandy Johnson. P sued
Phil. Piers but Sandy actually working for Carload Contractors. D Piers
24

knew of Ps mistake and P didnt find out suing wrong party until pretrial
conference. P requests ruling that for this case, forklift owned by PP (PP
would be stopped from denying facts it allowed P to believe).
ii. Holding: D Phil Piers uses 8(b)(3) for a general denial when it was aware of
mistakeA D who makes ineffective denial of part of complaint and
knowingly allows P to conitinue to rely on facts as stated in the complaint
may be stopped to deny the facts. P gets his request.
iii. WHY? justice requires? Court doesnt say bad faith but opinion reads
that way. Same insurance company? Lesson: be meticulous in denials.
2. Articulate affirmative defenses (add new facts to tell story in different way) - Rule 8(c)
a. Open ended list-8(c)(1)
b. Ds burden of pleading to assert these. Must be raised in initial answer to be valid
Layman v. Southwest
i. Layman owns property, Southwest Bell comes onto it and starts digging
trench without Laymans permission. Layman sues for trespass, and court
barred defendant, who just responded to the facts and failed to plead an
affirmative defense of easement, from introducing it into evidence.
ii. Other examples: contract wasnt vlaid, statute of limitations has run, P
failed to exhaust under Prisoner Litigation Reform Act
c. Not a counterclaim i.e. not a claim for relief. General rule is that P disagrees with
Ds affirmative defense.
C. Counterclaim- Rule 13-A claim for relief when D wants to sue P back (counterclaim is not answer), then P
must file motion to dismiss or answer
i. Compulsory CounterclaimRule 13(a)-Counterclaim is compulsory if it arises out of the same
transaction or occurrence that is the subject matter of the opposing partys claim. D must file claim
now or it will be waived, but doesnt have to bring counterclaim if D doesnt want to.
1. Conditions
a. D is an original party to the suit
b. Bring the above claim doesnt require adding another party to the suit
2. This creates efficiency/consistence judgments since all in one court.
ii. Permissive CounterclaimRule 13(b)-A pleading may state counterclaim against an opposing party
any claim that is not compulsorythen up to the court how it wants to adjudicate (separate claims or
not)
iii. Court corrects mistaken designationRule 8(c)(2)If party mistakenly designates a defense as a
counterclaim or counterclaim as a defense, the court must, if justice requires, treat pleading as
correctly designated.
D. Crossclaim: suit by a party against a co-party. P1 sues P2 or D1 sues D2---Rule 13(g)
i. Rule: You can sue a coparty as long as your claim grows out of the same transaction or occurrence as
the original claim, or relates to the property involved in the orginal claim.
ii. If crossclaim is filed, party against whom it is filed is now a D, and has to respond as any D would
E. Reply (rare) 3rd pleading Ps response to Ds answer. Rule 7(a)
i. A reply is necessary under Rule 7(a) if there is a counterclaim by D.
ii. It occasionally comes up to affirmative defenses. They can be mandated by the court.
iii. P must get a court order allowing a reply, to reply.
VI.

Amendments Rule 15Changing your pleadings

A. Very amendment friendly standardmotivating policy is to do justiceadjudicate case on merits
i. Reasons to deny request to amend are prejudice to other parties, bad faith, undue delay. Burden falls
on party opposing amendment to show it should not be allowed (Beeck case).
B. Breaking down the rule 15 (applies to all pleadings)
i. Amending before trial- Rule 15(a)
1. Without Permission
a. 15(a)(1)(A): P can amend ONCE when he hasnt yet received Ds response
b. 15(a)(1)(B): D can amend once within 20 days after filing his answer
2. With Permission
25

a.

ii.

iii.

iv.

v.

Rule: party can get permission to amend from court or other party (ask other party
first and party can stipulate to amendment; if multiple Ds, need permission of all)
b. Standard: should freely give leave to amend when justice so requires-15(a)(2)
During & After Trial Rule 15(b). Court should freely permit it, if it doesnt prejudice either party.
You can go back and look at your pleadings either during or after trial and retrofit them to make
them look like accurate representation of what happened at trialallows parties to amend pleadings
so they can have perfect record on appeal (hardly ever happens)
Beeck v. Aquaslide N Dive Corp
1. P Beeck injured while using slide, alleging Aquaslide D liable . D answered, admitting it
manufactured slide in question in reliance on opinion of 3 insurance investigators. Dist.
court granted Ds leave to amend answer to deny this fact and permitted separate trial on
question of manufacture. Court found for Aquaslide, SJ against Beeck P. By time of
amendment, SOL for Beecks P cause had run, and Beeck P appealed.
2. Holding: Allowing leave to amend was right. Rule 15(a): amendments are to be freely given
when justice requires. Except when bad faith, undue delay, etc. Party opposing motion for
leave must show he will be prejudiced by grant of leave, and court did not abuse it discretion
in exonerating D.
3. Possible rule 11(b) violation: lack of reasonable inquiry.
Relation Back: Amending after SOL has run out. When is it allowed? - Rule 15(c): When the statute
of limitations has run and you want to add a new claim to something you filed before it ran, you can
connect a new claim to an old claim when the amendment asserts a claim or defense that arose out
of the conduct, transaction or occurrence set outor attempted to be set outin the original
pleading (a lot like common nucleus of operative facts)
1. 15(c)(1)(A): If the statute/applicable law on statute of limitations allows it
2. 15(c)(1)(B): When adding a new claim arising out of the conduct, transaction or occurrence
set forth in the original complaint. Broadly vs. narrow application.
a. Moore v. Baker: Medical malpractice--Moore P sues Dr Baker after his recommended
surgery (warned of risks) left P permanently disabled. Ps initial complaint only
alleged violation of Georgias informed consent law. Trial court granted Ds motion
for SJ. Later P sought to amend complaint to include negligence claim, asserting
new claim relates back to date of original complaint. HOLDING: Court DENIES
Ps relation back request, says that it was not foreseeable and rose out of different
facts. Claim that does not arise out of same conduct, transaction, or occurrence as
orig. claim may not relate back to orig. pleading.
b. Bonerb v. Richard J. Caron Foundation: P slipped while playing bball at Ds foundation
in mand. Exercise program. Ps orig. complaint alleged Ds court negligently
maintained, but later sought to amend to include new claim for counseling
malpractice, seeking to relate back malpractice claim to date or original complaint
since SOL had expired for his malpractice claim. HOLDING: Ps motion to amend
granted, says that it arose from same nucleus of operative facts as original
complaint. Main factor is whether facts in orig. complaint put D on notice of claim
that P later seeks to add, and here, P is using same factual allegations, just changing
legal theory.
3. 15(c)(1)(C)): Changing a Party: If wrong party was sued, but right party knew or should have
known that it should be sued instead. As not to prejudice, thus need (1) they must have
had notice so (2)be added within 120 days of filing of suit (3)Same transaction or occurrence.
Supplemental pleadings: Rule 15(d):. On motion and reasonable notice, court can allow party to
supplement pleading to articulate new events/add new evidence that happened after the original
pleading was filed.

26

SECTION 5: DISCOVERY-process by which parties collect facts, evidence, and information for use at subsequent stages in
litigation (oftentimes before trial).
I.

II.

Policy for Discovery

a. Pros
i. Informational: get information out to the parties and the courts, more info=better litigation
ii. Efficiency: peel away whats frivolous to allow parties to narrow down/focus legal disputes
iii. Facilitative: brings parties together, often leads to settlement by influencing ways parties think about
their case, changing their cost equations. Value=outcome of trial +/- costsmore info changes the
outcome, driving up or down, encouraging parities to settle by pushing them into settlement range
b. Cons
i. Requires lawyers to use their professional skills to serve adversary
ii. Automatic disclosure seems to be contrary to adversarial nature of litigation
iii. Burdensome
3 Types of Discovery handled predominately by the partiesautomatic disclosure, formal, and informal.
a. Automatic Disclosure (Rule 26(a))-Except as exempted under Rule 26a1B, a party has to turn the following
over without request
i. 26(a)(1)(A) things that the discloser will use only for support of Defense or Claim (unless for
impeachment). Helps Scalias idea.
1. 26(a)(1)(A)(i) Name and if known the address and phone # of people who might have
discoverable info that you are going to use to support your claims and defenses.
2. 26(a)(1)(A)(ii) Must disclose tangible thingscopies of all documents and tangible
things the party plans to use in support of its claims or defenses
3. 26(a)(1)(A)(ii) computation of each category of damages (how you reached these figures)
4. Insurance agreements that may impact who pays for this particular stuff
ii. 26(a)(1)(B) - Exceptions like habeas corpus and courts can opt out of automatic disclosure
requirements in particular cases.
iii. 26(a)(1)(C) Do it by 14 days within 26(f) conference (relevant discovery scheduling conference very
early on in litigationusually within 3 months after filing case no later than 84 days since case filed.
iv. 26(a)(2) - Expert
v. Policy for Automatic Disclosure: Justice Scalia disapproval. Enlists the service of the adversary.
Parties required to cooperate, contrary to nature of our adversary system. Scalia was attacking older
rule that you have to turn over all relevant info, now the rule is just turn over info you plan to use.
1. Why do we have this rule? The parties have info so they have to turn it over, otherwise info
wouldnt get out thereits a necessary evil. We have it b/c justice.
b. Formal Discovery Mechanism Rule 27-32. Very expensive mechanisms to get things you didnt get in
automatic disclosure.
i. Depositions / party or non-party2 types (written and oral)
1. You can depose live oral testimony under oath; non-party can be subpoenaed (Corporations
supposed to designate person to depose/make him available)
2. Parties each get 10 depositions at least and court can allow for more
3. Written: Rule 31-can use with parties or non-parties
a. Number of questions need to be reasonable (25 is loose standard)
b. Pros: Relatively cheap
c. Cons: cant assess demeanor (hard to tell if person lying since cant see), cant ask
follow-up questions.
4. Oral- Rule 30-more common-can use with parties or non parties, usually comes after some
other types of formal discovery mechanisms so you can narrow your questions.
27

a.

ii.

iii.

iv.

v.

Laywers are present, usually in an office. Very court-like, court reporter there,
recorded, person deposed under oath.
b. Rules: Deposition lasts 7 hours max (1 day) unless court allows more, like when
deponent refuses to answer questions court thinks it should answer
c. At the time, lawyer can object to a question to his clientRule 30(d)(1)?
i. Objections based on relevance: must answer anyway
ii. Objections based on privilege: dont have to answer
iii. Waiving: if dont object in deposition, ability to object in trial waived
d. Advantages-can assess demeanor, ask follow up Qs, push harder on things, generate
costs to other side, ask people to bring things with them (coupling with request to
produce and Rule 45 if non-party)
e. Disadvantages-very expensive, time consuming, usually only get one chance.
Interrogatories Rule 33 / APPLIES TO PARTIES ONLY, looks a lot like depositions
1. Write down questions, send to other side, parties under oath with 30 days to respond
2. Can only ask 25 questions (include sub-sections) to each individual party but court can give
permission for more. Parties can object.
3. Pro: cheap, Cons: no follow up questions, cant assess demeanor
Request to Produce - parties only (Rule 34), non-parties (Rule 45 can use to get documents from
non-parties, from subpoena)
1. Should be as specific as possible because request can be challenged as
overbroad/cumbersome and maybe other party will comply and give you everything which
would be too much.
2. Must respond within 30 days.
3. Pro: cheap to ask, as many as you need. Cons: underdiscover, overdiscover.
Request for ExaminationPhysical and Mental Exam Rule 35 / court order just for parties
1. Must provide notice, get court permission, and higher standard. Must do balancing test and
show 2 things:
a. Condition is in controversy (especially relevant, look to the pleadings CFR/answer)
b. Show good cause to perform this examination (balancing bodily autonomy +privacy
w/ req. for justice)
2. Procedure: Doctor of requesting party performs the procedure.
3. Examiners report (Rule 35(b) mutuality provision)-If you get court to grant exam of other
party, you can choose Dr. to examine them and get the report. Other party can get report
under Rule 35(b) mutuality requirement by just asking for it but when he does this, he has to
make it available a quid pro quo (waiving privilegehe now has to give over previous Dr.s
reports to other party)
4. Schlagenhauf v. Holder writ of mandamus to appeal discovery
a. P seeks 4 exams and lower court orders 9 mental and physical examinations of bus
drive after he got in accident, injuring passengers.
b. Court applies the balancing test says drivers eyesight in controversy since its in the
pleadings, and there is good cause since there is disagreement over testimony, but
other exams not in pleadings/controversy, so no mental examinations.
Request for admission Rule 36Just applies to parties
1. Request to get the other party to agree to something, admit to something, kind of like
pleadings you can get the other side to admit about law and facts. Send party piece of
paper we request that you admit this to take it out of controversy)
a. Can be about the facts or about law. Ex. You want Sullivan to admit that ad ran on
X date (fact) or you can request admission about the law that applies.
2. Often the most powerful, but Parties use this rarely, most underused.
28

3. Cheap, easy, lead to efficiency.

c. Informal Discovery do your own work Ex. If you are going to sue a restaurant, drive out to look at it.
See Hickman v. Taylor.
III.

Limitations on Discovery enforced by the parties.

a. Must be Relevant: (sum of two parts) 26(b)(1)piece of info is relevant if it tends to prove or disprove
something that is material to the dispute (it can be a claim or a defense). Info does not have to be admissible
at trial to be relevantrelevance is flexible term, and requires 2 parts
1. Probative: the evidence has a tendency to prove or disapprove something. +
2. Material: Of consequence to a particular case (look at pleadings + substantive law).
ii. Steffan v. Cheney (D.C. Cir, 1990, P 411)
1. Facts- Navy moves to compel to admit to gay acts after he sues for being fired for
allegedly saying he was gay.
2. Finding-Ct does not allow discovery b/c finds prior acts not relevant to orientationhis
conduct was not basis for his dismissal (it was probative, but not material). Only evidence
that is relevant to the issue being litigatedmay be discovered.
b. Cant be Unreasonably cumulative, duplicative, overly burdensome - 26(b)(2)
i. Benefit of the info must be outweighed by the burden of getting it, so you have to narrowly tailor
your claim (Davis) Can bar discovery when there are other convenient ways to get the info or the
costs outweigh the benefits. 26(b)(2)(C)
ii. 3 Limits: court must enforce on its own (or parties can file motion to enforce)
1. Information sought not unreasonably cumulative, duplicative, or burdensome
2. Party couldnt get info otherwise (or at earlier time)
3. Burden/expense doesnt outweigh benefits
iii. Davis v. Precoat Medals (Ill. District, 2002, P 409)
1. Facts-P and other minority employees at Ds plant sued employer alleging race
discrimination and retaliation. P sought discovery regarding other employees complaints
made against co. by nonclerical-non-administrative employees who worked at same plant as
P over last 4 years. D argued this info not discoverable, arguing not relevant/privileged.
2. Finding-Allows discovery b/c narrowly tailored to time, location and type of discrimination;
may lead to admissible evidence & not too burdensome. Co wide or all types of
discrimination likely too burdensome. Didnt ask for stuff that could have gotten otherwise,
and it is relevant because it is 1) probative and 2)material to dispute.
c. Court Discretion -no particular rule, courts have huge range of discretion to shape discovery in front of
them (talking particularly about trial court judges). Most discovery decisions are not final judgmentsdont
end case completely. Judges tend to not like discovery (more concerned with merits) so dont get involved.
i. What do district courts control?
1. Timing/Scheduling obligations put on the parties.
a. Rule 26(f)-except when court orders otherwise, the praties must confer as soon as
practicable, and in any event at least 21 days before scheduling conference held
2. Numbers and amounts
a. Court can say only 5 depositions
ii. Appellate courts apply abuse of discretion review
d. Cant be Privileged Information Rule 26(b)(1)Privilege is protection against disclosure or particular
information because of the type of information involved, the context in which it was communicated, and the
source.
i. Types of privilege: 5th Amendment privilege against self incrimination (Can invoke the 5th in crim
context where court cant draw negative inference, but court can draw negative inferences in civil
29

context), attorney-client (Hickman v. Taylor), doctor-patient, spousal (no parental privilege),

psychiatrist-patient privilege, clergy, sometimes journalist-source (unlikely courts recognize widely)
ii. Why have this limit? Keeps info out that might be dispositive in a particular case, but is a social
choice. Balance between access to info and freely open communication necessary for relationships
like Dr.-patient. *federal courts in diversity apply state privilege rules b/c privilege rules substantive
iii. Waiving privilege: Just because you have it doesnt mean you have to invoke it. It can be waived by
the holder of the privilege (like the patient/client.) Ways to waive:
1. Give info up, answer the question (direct)
2. Share info with 3rd parties (indirect)
3. Call issue into controversy itself
iv. Ex. For IIED claim, allen seeking psychotherapy, and barb wants to add this to trial. It is relevant, it
is privileged under psychotherapist-patient, but there is implicit waiver because he brought the
subject of his mental state into controversy, waiving the privilege in this suit.
v. Ex. Al tells atty he was at fault for accident since driving blindfolded at night with headlights on, barb
wants info. It is relevant, but privileged depending on who Barb asks and how asks it.
1. If Barb asks Al if headlights working, he has to answer since you cant privilege facts just by
telling them atty. Atty-client privilege protect communication not the underlying facts.
2. If Barb asks al if he told his atty this, he doesnt have to answer but he can waive it.
3. If Barb asks atty, it is privileged and he cant waive it.
vi. Al sues Barb for intentionally driving her car itno his. His lawyer asks did you intentionally collide
with Albert? Barb cant reject on grounds that it is irrelevant, but could object on 5th amendment
privilege since intentionally hitting someone would be battery, a crime (although court can draw
negative inference in civil action).
e. Privacy (motion for protective order) Rule 26(c) You can go to court and convince them that info is
sensitive enough even if relevant, non-cumulative, court has discretion, and non-privileged. The court may,
for good cause, issue an order to protect a party if disclosure would 1) annoy, embarrass, oppress, or impose
undue burden/expense on someone and 2) not relevant under 26(b)(1)
i. Anybody, a party or any person from whom discovery is sought may seek protective order.
ii. To get protective order you must
1. Meet and confer or attempt to confer with the other party. If you meet and confer and cant
make agreement, you go to court go get order. If party wont meet, can still get court order.
2. Good cause-at court, you must show you have good, specific, and particularize cause.
Default is in favor of discovery/information.
iii. Rule 412 (rape shield rule)-only applies to vicitms
iv. Opposite of protective order: Motion to compel (Rule 37)
v. Stalnaker v. Kmart Corp.1. P bring sexual harassment suit against employer, Kmart, and another employee Graves. P
sought to discover info concerning voluntary romantic conduct of 4 other employees who
were not parties to action, and Kmart moved for protective order against discovery.
2. Holding: Court allows stuff to enter about Mr. Graves (relevant info about Graves
relationships might show he encouraged/solicited type of conduct in workplace), but
protects other conduct. (hard to separate). There is no relationship between voluntary
romantic conduct of nonparty witnesses and Ps allegations. Protective orders are
appropriate to preclude discovery of irrelevant and private information.
f. Work Product Doctrine- Rule 26(b)(3) codified rule in Hickman v. Taylor
i. Rule 26(b)(3) Trial Preparation: Parties may not discover documents or tangible things prepared in
anticipation of litigation or trial by or for another party or its reps.
1. Who does the preparing? Open list of people participating in legal servicescould be party,
atty, insurer, consultant, etc.
30

2. What are they preparing? Documents and tangible things (emails, charts, etc). Nothing else
is covered by WDP.
3. What does anticipation for litigation/trial mean? What they will use with regard to case that
has been filed or will probably be filed. WDP does not extend too far.
ii. No discovery unless of documents or other tangible things in anticipation of litigation or trial
UNLESS (conjunctive list)
a. Otherwise discoverable under 26B1 (relevant and non-privileged)
b. Party has substantial need for the materials to prepare its case
c. Cant obtain comparable or identical info without undue hardship
iii. Absolute Immunity: 26(b)(3)(b), Some things are never discoverable, including attorneys thoughts
such as mental impressions, conclusions, opinions, or legal theories or other rep concerning the
litigation.
1. This protects whats left of adversarial process and is anti-free riding rule (we want attys to
do their own work and want to give candid advice)
iv. 26(b)(3)(c)- Some things always discoverable--Can always get your owns statements (usually talking
about clienets or witnesses). You say something to atty, can go request copy of your statement.
v. Hypos
1. Bloom seeks memo written to me by atty, giving me candid assessment of my legal
claimsBloom cant get it since covered by WPD (mental impressions) and privilege
2. Bloom wants transcript of an interview that my atty did with eye witnesshe can get it if it
is otherwise discoverable, necessary, and cant get it without undue hardship
3. My atty involuntarily discloses info to other party he didnt mean toHe can ask for it back
under Rule 26(b)(5)(b), which doesnt always work and if does, other party designs around it
vi. Hickman v. Tyler (1947)
1. Facts: 5 of 9 crew members drowned when tug sank. Public hearing held where survivors
examinedtestimony recorded, available for all. Ds attorney interviewed survivors later in
prep for possible litigation. P tries to discover the materials prepared from the conversation
and counsel for D.
2. Holding: Party seeking to discover material obtained by adverse partys counsel in prep for
possible ligtigation must show justification for such production. Material P seeks is not
covered by atty-client priviliege but constitutes work product of the lawyer. No discovery
since no necessity/justificationinfo here is available elseware (public hearings). Policy:
other party should not benefit from wk and wits of the other side in our adversarial system.
g. Experts (26)(b)(4)-experts are common and very persuasive on judges/juries. 2 types of experts:
i. Testifying experts (26(b)(4))
1. Must disclose names of people they think might testify at trial to the other side (Rule
26(a)(2)) and must give copy of their report.
2. May depose testifying experts (Rule 26(b) (4))get 10 depositions
3. Rationale: no surprise at trial, efficiency (effective cross-examination), liberal discovery
ii. Non-testifying experts (26(b)(4)(b))1. No discovery of facts known or opinions held by experts who were retained in anticipation
of litigation or trial but are not expected to testify at trial UNLESS
a. Rule 35(b) Mutuality principle for mental and physical examinationsthe other
party can get the report just by asking for it but when other party asks for a copy of
it, he has to make available quid pro quo, waiver of privilege, making him have to
give over his previous doctors reports to you. OR
b. Exceptional circumstances such that it is impracticable for you to get that info or
sufficiently good information otherwise/scene or info cant be reproduced, or
parties behaved less than commendably
31

2. If you later decide that the will testify, you must amend pleading and hand over all info.
3. Why limit this info?
a. To encourage parties to seek expert advice
b. To encourage experts to participate (protection/anti-harrasment)
c. Discourages free ridingdo your own work!
4. Thompson v. The Haskell Co. (1994)
a. Facts-P alleges wrongful termination (sexual harassment) that caused depression;
psych report 10 days after her firing was only comparable report within weeks
following firing; D was unaware of suit until later. D seeks report and P sought
order to protect the psychological records.
b. Holding: Discovery allowed. Dr. Lucas was an expert and attained in preparation for
trial, court says this is highly probative of her mental state at the time. Since
unique info that D can get no other waydiscovery allowed.
5. Chiquita International Ltd. V. M/V Bolero Reefer (1994)
a. Facts-Shipper Chiquita P sued cargo carrier D for cargo loss and damages, alleging
crane malfunctions damaged fruit. P hired marine surveyor to examine boat shortly
after it arrived. He is a non-testifying expert. D moves to compel discovery, arguing
that he was a fact witness rather than an expert and that exceptional instances
compelled discovery.
b. Holding: No discovery. Rule 26(b)(4)(b) no discovery of facts known or opinions
held by a non-testifying expert and so anticipates that such an expert may make his
or her own investigation. This does not meet exceptional circumstances b/c D
could have sent own expert. D may have had a better opportunity than P, and even
though info that Ps nontestifying expert had wasnt replicable-no discovery.
To enforce these limits on discovery, we use sanctions, protective orders, and order to compel.
IV.

Discovery Sanctions (2 sanctions rulesRule 26G and Rule 37)

a. Sanctions can involve lots of thingsthrowing out case, costs and fees, thrown in jail
b. Why have sanctions rules?
i. Trying to limit partys ability to exacerbate unequal power
ii. Incentives of litigationincentives not always in favor of good behavior. Reality of discovery
pushes against good behavior, so sanctions help encourage people to do good things.
iii. Discovery designed largely self-executed without much involvement from court with few exceptions.
c. Problems: overdiscovery, stonewalling (underdiscovery), mismatching (disparity of power).
d. System is suppose to be self-executing and autonomous w/o court intervention.
e. Sources of Discovery Powers designed to overcome the partys incentives to not cooperate:
i. Rule 26(g) (start here first)COMPELS COURT TO SANTION: you get sanctions if you
misbehave in context of 26A automatic disclosure and if you misbehave in discovery request. Looks
a lot like Rule 11 since it has same trigger device (signature) and makes it look like sanctions are
mandatory/immediate.
1. 26(g)(1) everything must be signed. (similar to 11(b) but Rule 11 covers written documents
to court like pleadings and motions and 26g is about discovery requests/responses.
a. Every disclosure or discovery request/response/objection is signed by atty
2. If it is not signed, the court and the otherside can ignore the paperwork.
3. 26(g)(3)- for violations/signing something when you knew it wasnt correct, you get chance
to prove why what you did was justifiable, otherwise court MUST impose sanctions.
a. 26(g) has mandatory tone since added b/c the courts were not imposing sanctions
enough under Rule 37, but courts still automatically revert to rule 37.
32

4. Sanctions usually $$
ii. Rule 37: PERMITS COURT TO SANCTION
1. To get order to compel (opposite of protective order) you have to
a. Meet and confer with other party first
b. Prove that you are entitled to discovery (whereas to get protective order you have to
just show good cause to block discovery, there is higher burden here). (37(a)(2) can get it in any court that has jurisdiction your court or another court where the
deposed is located)
c. If you get order to compel and party still doesnt hand over discovery, you can get
sanctions for violation of order.
i. See Stefan v. Cheney case-they filed motion to compel him to answer
questions, got it, and he still wouldnt answer, violating court order so court
can throw out case entirely.
2. Can take a while: Unlike 26G, there are as many as 8 steps here, taking longer and very
expensive--meet up, file motion, court orders, wait for response, seek sanctions. Regardless,
courts still automatically revert to Rule 37, and between 2 rules, cover most discovery abuses
but not all since some happen before discovery starts /cases even filed (Silvestri and
Zubulake cases). Cant use these rules to punish parties misbehaving before case filed so
court has to use spoliation doctrine, or courts inherent powers.
iii. Courts inherent powers: Covers things before the case is filed. (26/37 only cover stuff afterwards).
1. Spoliation: destruction/significant alteration of evidence/failing to preserve property for
anothers use as evidence in pending or reasonably foreseeable litigation.
a. Test for Spoliation:
i. Duty: Party has duty to preserve evidence and/or to notify (giving
reasonable time to inspect). Party should reasonably should know that the
evidence may be relevant to anticipated litigation
1. Court in Silvestri (below) said that while it was not his car, he had
duty to notify General Motors so breached his duty.
ii. Determine Appropriate Sanctions for Breaching Duty (Adverse Inferences)
1. Culpability: How culpable/blameworthy is party that god rid of
evidence? Was acting in bad faith? If too culpable, then adverse
inference.
2. Prejudice: Will this prejudice the other party? If party is not
blameworthy but the prejudice is very high (like preventing a
defense), extreme sanctions like case dismissal in Silvestri may
apply.
b. Destroying evidence less common since incentives not to spoliatepunishment can
be extreme (lose case altogether), attys deal with each other all the time, plus always
another copy of something.
c. Why have this doctrine?
i. Influence how parties behave in real world
ii. Maintain integrity of the court
2. Zubulake v. UBS Warburg LLP
a. Facts: P sues UBS for gender discrimination and illegal retaliation. Ps production
request sought all electronic documents about her. D only produces 100 pages from
5 email accounts, and she moved for more since parts of tapes missing.
b. Hold: UBS D must make additional disclosures of its internal emails to Pactive
email files and emails saved on optical disks since readily and inexpensively
accessibleD pays. But emails on back up tapes not readily accessible/expsensive
33

to produce, so UBS at its own expense shall produce any relevant emails from any 5
backupt tapes. Motion to compel granted, with cost shifting issue reserved. Court
says there was no spoliation. There was duty, and culpability (at least negligent), but
court wont allow adverse inference since we cant say D especially culpable and
cant say P was very prejudiced because emails not very relevant.
3. Silvestri v. General Motors Corp
a. Facts: P (unsympathetic party) drives drunk and hits a pole. He sues GM for
defective airbags. Attorney doesnt notify GM and neither P nor his atty take steps
to preserve vehicle, and dont notify until 3 years later when P began action.
b. Hold: Court dismisses the case b/c spoliation. Silvestri had the duty to preserve it,
and it denied GM access to the only evidence of the case. A partys duty to preserve
material evidence extends to the period before litigation, when a party reasonably
should know that evidence may be relevant to anticipated litigation, and therefore
the object of discovery.
What if you dont like what happens in discovery? District court disputes on discovery mistakes are not appealable
immediately (but object now so can appeal later). It seems inefficient to require waiting until final judgment/case completely
done, but reasons for waiting are 1) respect for district courts to manage discovery (so be hands off) 2) avoid piece meal
litigations 3) Avoid unnecessary appeals (if you go through trial and still win, you wouldnt appeal that discovery dispute).
EXCEPTION TO WAITING: when parties succeed on writ of mandamus (Schlagenhauf)

34

SECTION 6: ADJUDICATION WITHOUT TRIAL

PleadingsDiscoveryTrialAppealJudgment More than 97% of cases stray from this path
Disincentives to trial: costly, risk, and increase in non-trial options
Non-trial options
a. Alternative Dispute Resolution-negotiation, mediation
b. Settlement
c. Federal Rules of Civil Procedure (pre-trial dispute mechanisms that are built into the structures of the rules)
i. Rules 41 and 55-both involve parties who dont want to be bothered with litigating. Rule 41 focuses
on Ps and Rule 55 on Ds. You have to stay in the game or you will lose.
ii. Rule 12B-Rule 12B6 motions happen before trial, getting rid of cases where there is fundamental
flaw, like failure to state a claim
iii. Rule 56-Summary Judgment
I.

Default Judgment / Voluntary Dismissal

a. Rule 55 Default Judgment (defendant doesnt engage in litigation)
i. Defendants must respond via motion or answer OR they lose on the merits, putting burden on D to
contest claims against her. D has to file answer or motion to dismiss, and if doesnt respond within
right time (12-20 days unless you waive service of process then 60 days), clerk must enter default.
ii. Rule 55 can go get one after 21 days (or 61 if process waived) but should wait.
1. 55(a): Entry of Default. Must show via affidavit + the clerk must enter the partys default.
2. 55(b): Judgment: 2 options:
a. (b)(1): Clerk can enter both default and the judgment if its easily calculated (sum
certain, mechanical amount) and it is not young, incompetent D.
b. (b)(2): Otherwise, judge enters it. Courts can hold hearings to calculate damages. D
gets notice if they have appeared (shows up but does not engage in merits)
c. 55(c): set aside a default or default judgment/trap door provisionThe court may
set aside a default judgment if party has good cause (open ended list, much court
discretion like attorney incompetence, failure to receive notice, honest mistake,
surprise) via Rule 60(b) (relief from judgment).
i. Courts are often generous since courts want adjudication on actual merits
and want Ps to exhibit some good faith, reaching out to other party if they
havent responded.
3. What does D do if gets service of process?
a. Call other party and ask them to stipulate to extension of time and get courts
approval.
b. If party doesnt agree, ask for court permission.
c. Or, do nothing at all and hope trap door of setting default judgment aside
iii. Peralta v. Heights Medical Center (pg. 475).
1. Facts- Peralta is guarantor of debt for hospitals patient. Medical center sues Peralta to pay
medical expenses for one of Peraltas employees. Peralta improperly served, but center
entered default on peraltas failure to respond and property attached and sold. Peralta tries
to void sale/set aside default as service was invalid, but lower ct grant summary judgment
b/c cannot show Peralta cant show meritorious defense; ct concedes service flawed, though
he did actually receive service.
2. Finding-Reversed. Violates due processa meritorious defense is not required to set aside a
default entered after improper service. Cites Pennoyer and Mullane must give fair notice
or 14th amendment violated and due process demands that default be set aside.
35

II.

3. Rationale- Shows courts will enter default judgments but greatly prefer to see cases
determined on the merits.
b. Rule 41 - Voluntary/Involuntary Dismissal (plaintiff doesnt engage anymore because new facts undercut
Ps claim or life happensmoving on, running out of money, new priorities)
i. Rule 41(a) Voluntary Dismissal
1. Sought by P
a. 41(a)(i) P can dismiss the case unilaterally just by telling court and parties as long
as Ds didnt file answer or counterclaim (this is incentive for Ds to respond quickly
b. 41(a)(2) must get courts approval if D has answered or filed SJ/all parties agree.
2. By the court-courts will generally grant these motions for dismissal on terms the court
considers proper. On first time, the court adjudicates it without prejudice, so P can go refile
elsewhere, but second time case is filed, it is adjudicated on the merits, so P cant re-file again
3. Texaco Inc. v. Pennzoil: To avoid Texaco, D should always file answer right away so that his
permission is needed before P can dismiss, otherwise P can refuel in more favorable forum.
a. Facts: P filed originally in Delaware seeking injunctions. D opposes injunction but
didnt answer. Court denied the injunction saying P would probably lose.
b. P dismisses the case voluntarily, and re-files in Texas. Wins $10 billionIf D had
answered, P would have needed both D and courts permission to dismiss, which
would have been unlikely.
ii. Rule 41(b) Involuntary Dismissal:
1. If plaintiff fails to prosecute/comply w/ rules or abide courts scheduling orders or cause
unreasonable delay, D can move to dismiss action.
2. Serves as adjudication on merits (unless it has to do with jurisdiction, venue, etc.)
a. Semtek exception to this rule, reads 41(b) very strangely
Alternate Dispute Resolution
a. Settlement
i. Courts are very settlement friendly. See Matsushita. Settlement occurs in more than 90% of cases,
have monetary starting points, and discovery drives up litigation and outcome value.
ii. Advantages/Disadvantages
1. Advantages of Settlement:
a. Consent: justice and consent. Can split the difference (while trial is all/nothing),
everyone walks away with some sort of victory
b. Control Costs/Risk: can more adequately predict (trials are expensive)can stop
paying court fees/witness fees/attorneys fees/stress
c. Systemic: judicial efficiency since courts overburdened.
d. Nuance/Detail: can put pressures on things you wantsettlement allows juries to
give slightly more detailed answre
2. Disadvantages
a. Exacerbates party inequalities: esp. financial, favors the wealthy since they can hold
out, hire better attorneys, paper the other party to death
b. No Legal contribution: no case/opinion to contribute to common law/future cases,
diminishing legal dialogue
c. Day in court: Loss of procedural rightsparties get the final say
iii. Mechanics of Settlement-4 issues to consider
1. Content of contract: should contain how much D will pay for P to agree not to sue/refile.
Drafting must be precise, enforceable, and in writing.
2. Timing Issues-D can make offer of settlement 10 or more days before trial begins (Rule 68)
3. Role of the Court
36

a.

If pre-filing agreement not to sue, courts dont have to approve substance of

settlement except with few exceptions: multiple Ds, minors, class actions (people
arent in position to self protect)
b. If case has been filed, P files motion to dismiss under Rule 41 stipulated dismissal
(courts usually grant these) and usually under 41A but sometimes under 41B,
meaning with prejudice and P cant refile.
c. If P agrees to not sue but sues anyway, D answers complaint immediately with
affirmative defense of settlement (Rule 8c) and at same time files motion for SJ with
copy of settlement contract. D cant just use motion to dismiss for failure to state
claim.
d. If D doesnt pay under settlement, P can sue D for breach of contract (state law). D
can only get into federal court through diversity. D can get court to integrate
settlement agreement into court order.
4. Limits on what to put in settlement contract not many limits, courts settlement friendly
(Matsushita)
iv. Consent Decree Memorializes the agreement between the parties w/ a court order
1. Limits of Consent Decree (not many) Matsushita Elec. IndustrialCo. v. Epstein
a. Matsushita D acquired MCA D. Class action filed in DE state court against
directors of MCA D for failing to maximize shareholder value. At same time,
another suit filed in CA fed court for violation of Williams Act. Two lawsuits, (1)
Delaware st. (2) federal 9th circuit. While fed case under appeal, DE state suit
negotiated settlement/got consent decree for state claim.
b. Holding: Settlement of class action suits in state court may release exclusively federal
claims pending in federal court b/c of 1738 (full faith and credit act), the supreme
court says that parties can enter settlement contracts that they dont have authority
to adjudicate. Required federal court to uphold DE state courts decision that the
latter didnt have jurisdiction to hear to begin with. The state court approved the
settlement, and thus it has to be held as fair and the court will enforce this
settlement
c. Lesson: Can get courts to memorialize in settlement contracts things that those
courts didnt have authority to hear in first place. Seems like justice was lost. No
due process? It was waivedWhat about Peralta? Doesnt this encourage finding
plaintiffs attorney to settle??
v. Confidentiality and Settlement
1. Why? protect sensitive info about individuals, employment, finances etc, prevent abuse of
exploitation of that info, avoid precedence that future parties could use against them, public
policy concerns
2. Limits Kalinauskas v. Wong
a. P sued D Caesars for sexual harassment. P wants to depose 3rd party who earlier
settled w/ D. Settlement had a confidentiality clause, so D seeks protective order.
b. Since witness had information relevant to new case, confidentiality clause in former
settlement agreement not enforcedNo protective order for barring witness for
from testifying in new case. Courts allows the info. for the current claim, but
inquiry into the terms of settlement is not necessary.
c. Rule: court trying to encourage settlement, but also not allowing buying silence.
Even when courts pierce confidentiality terms, they do as little as possible.
b. Private Adjudication: Arbitration and Mediation
i. Arbitration is a decision by a judge, while mediator has no authority to enter decisions. Courts
enforce decisions of the Arbitration. Arbitration is outside typical federal-state context, and is
37

private, binding, and non-judicial. Parties mostly have arbitration agreements in contracts
(employment/real estate contracts and even employment applications)
ii. Benefits/Costs
1. Benefits:
a. Control Parties have more control over process, can decide what substantive law
applies and rules of procedure/evidence/discovery, can make entire thing
confidential
b. Costs Parties have more control over costs, although some arbitrators charge a lot
c. Expertise Parties can pick an expert arbitrator, giving more nuanced outcomes
(No req. that must be expert or attorney)
d. Helps Courts/Systematic keep court dockets shorter plus no appeals. Courts
strongly in favor of arbitration but cant arbitrate some issues like securities law,
anti-trust laws, big civil rights cases.
2. Costs
a. Mistake If arbitrator makes mistake, less appellate protection. Hard for courts to
intervene and undo arbitrator decision
b. Less law/precedent-arbitrators can ignore law altogether/decisions not on books
c. Exacerbates party inequalities- Ex. Job applicant cant say I want this job but only if
no arbitration clause)
iii. Federal Arbitration Act lays down how to proceed w/ arbitration. (does not invest federal courts).
Must have another hook to get in the federal court.
iv. Process of fighting an arbitration agreement:
1. Front end (not on the merits) accords with FAA. Agreement enforceable? Relates to
enforceability of the agreement, before any decision on merits. You have pleadings and then
ask courts to go into arbitration.
a. P files D motion P says arbitration contact is unenforceable.
b. Arbitration = contract laws, thus court applies state law. Ferguson and Carter
below different verdicts because different state law.
c. Ferguson v. Countrywide (CA)
i. Facts: P sues for sexual harassment etc. D moves to compel arbitration
pursuant to her employment contract. Dist. court refused to enforce it
under unconscionability.
ii. Holding: No arbitration. Arb. Agreement is unconscionable, and therefore
unenforceable, where it is prereq. to employment, job applicants not
permitted to modify terms, and terms are one sided, favoring employer.
Look at procedural (process through which formed-unequal bargaining
power here) and substantive unconscionability (terms of contract-here one
sided forcing employees to go to arbitration but no employers and
discovery limits unfair). says the agreement is both.
d. Carter v. Countrywide (TX)
i. Facts: P, former and current employees, sue to recover overtime
compensation. D moves to compel arbitration pursuant to indiv.
Agreements signed by employees as condition of employment (agreement
required employees to pay half the arbitration costs).
ii. Held: Ds motion to compel arbitration granted. Not unenforceable on
grounds that employees right to judicial forum under FLSA claims cant be
waived. Payment issue moot since D sent memo saying would pay for most
costs, it is not procedurally/substantially unconscionable just because
38

employer was in superior bargaining position. Presumption is in favor of

arbitration.
2. Back end (on the merits) Arbitrators decision enforceable?-You have arbitrators decision
and someone in court challenging it (parties not likely to win since standards are arbitrator
friendly on substance & procedure)
a. Very difficult to vacate the award try the front end more.
i. FAA 9 U.S.C. Section 10 - Courts can only vacate arbitrators award
federal policy)- Order to vacate
a. " corruption fraud or undue means"
b. partially or corruption"
c. "misconduct in refusing to postpone the hearing"
d. "arbitrators exceeded their power" (ruled on issue parities
didnt agree to arbitrate, ignored some aspect of contract,
or awards say property instead of cash payments)
ii. 9 U.S.C. Section 11 - modification of the award (federal policy)
1. (a) Material miscalculation.
2. (b) Ruled on matter not submitted
3. (c)Award is imperfect in matter of formdoesnt affect merits
b. Courts tend to be very deferential to the arbitration decisions b/c of expertise, etc..
c. Cant contract into a higher scope of review Hall Street Assocs. V. Mattel.
d. Ferguson v. Writers Guild of America (1991)
i. Facts-After Guild arbitration proceeding found that P Ferguson should
only get partial writing credits for film, P sued to set aside arbitration
proceeding, sued in state court to get court to make own determination
about the credits, or in alternative, to vacate arb. Decision for procedural
defects. seeks to get out of arbitration against him, where arbitrators can be
stricken for cause initially, but then are unknown and there is little chance
for appeal. The guild has an elaborate sys.
ii. Held: Back end challenge to arb. denied. Jud. Review of arb. Proceedings is
limited to whether the parties agreed to arb., whether arb. Proceedings
provide fair opportunity to be heard, and whether administrators exceeded
powers. Ct refuses to undo arbitration decision; gives great deference to
professionals on how to manage business due to their expertise; will only
rev. for inconsistency w/ own procedures. Will not order ID of arbitrators.
Arb. Agreement here is commonly used and easy to understand.
III.

Summary Judgment
a. Standard of Review: De Novo Review. Dispute about law, facts are stipulated, or where one party lacks
evidence supporting critical element of case
b. Rule 56
i. Rule 56(a) claiming party (one that files claims for relief) files w/ affidavits (must be based on
personal knowledge)and can move for SJ on all or part of claim
1. 56(a)(1) can file after 20 days
2. 56(a)(2) or after the other side files SJ motion.
ii. Rule 56(b) defending party may move for SJ at any time before trial
iii. Rule 56(c) TEST--Motions for SJ are to be granted when
1. Any materials/affidavits show that there is no genuine issue
a. Legitimate dispute actually basis for disputecant be willfully blinding.
2. As to any material fact.
39

a. Affects the trial of consequence to the case.

b. Ask if reasonable judge/ jury could find either way (need not be 50/50). Witness
credibility not to be assessed at SJ stage
3. And moving party is entitled to judgment as a matter of law
iv. Rule 56(f) if affadavits are unavailable, court can deny (1), order a continuance (2), issue just order
(3)
v. Sway facts for non-moving party and look past pleadings to evidence. Like 12B6 motion, assume
facts in plaint are true then ask whether facts support any basis for legal relief
vi. Witness credibility
1. Conflicting witness testimonies on exact same pointNO SJ
2. Remember Len Bias case: one testimony was more general than the other, so court didnt
interpret it as conflictingSJ entered.
3. Only one witness testimonySJ ok.
c. Celotex Corp v. Catrett -focuses on what party moving for SJ must do to win SJmovant only need identify
gaps in other partys evidence.
i. Facts- P sued Celotex D for death of husband from exposure to asbestos manufactured by D. D
move for SJ because P had no evidence that decedent was exposed to Ds asbestos in statutory
period.
ii. Held/Rule-Grants Ds motion for SJ. Rule 56(c) mandates summary judgment against a party who
fails to make showing sufficient to establish existence of an element essential to their case, such that a
reasonable jury could find for them, on which that party bears burden of proof. The, there is no
genuine issue as to any material fact. D does not have to negate an opponents claim in a motion for
summary judgment + do not need to make an affirmative showing. The burden on the moving party
is met by showing an absence of P evidence. Here, P failed to identify witniss who could testify
about husbands exposure and no showing husband was exposed to Celotexs product within
statutory period, so summary judgment for D proper.
iii. POLICY- This interp necessary to keep cases lacking merit from going to trial now that notice
pleading makes motions to dismiss far less likely to succeed. Also, mandates serious use of
discovery.
d. Approach to summary judgment (SJ is non-moving party friendly)
i. Look at Elements/Burden of Proof
ii. If moving party makes initial showing
1. If burden of proof -- must use evidence to show that there is no genuine issue to any
material fact.
a. Ex. A raises a contract as an affirmative defense, so to prove, A needs to prove the
contracts existence.
2. If no burden of proof can bring affirmative evidence to disprove one of elements moving
party is trying to show or may use evidence to show or poke holes (if you bear burden of
proof at trial, can only bring affirmative evidence, cant poke holes)
a. Ex. A raises a contract as an affirmative defense, so to oppose, B only needs to say
contract doesnt exist.
iii. Rebut/Fill gaps inferences in favor of non-moving party. Non-moving party has chance to rebut
e. Bias v. Advantage International Inc. (1990): focuses on what non-moving party must do to defeat SJ
i. Facts: basketball player overdoses on cocaine; family claimed breach of contract against agent for
failure to get insurance policy; D moves for SJ, arguing no damages since even if he had tried, he
couldnt have gotten a policy because he was a drug user; family said he doesnt use drugs but
teammates say he did.
ii. Held: SJ granted. Non-moving party must establish specific facts showing a genuine issue for trial.
There is no genuine issue of material fact because the specific evidence of teammates/insurance cos
40

f.

IV.

inquiring about drug use for big policies trumps the general denials. Parents failed to contest witness
testimony by 2 teammates, so court believes it.
iii. POLICY: Bloom says this case not appropriate under Rule 56 since not drawing all reasonable
inferences in favor of non-moving party. Court may be asking should it go to the jury, rather then could
it. Specific > General.
Abuses of SJ: SJ is used for docket control/case resolution instead of always finding if trier could come out
either way. Courts do this because of (1) logistics (trying to clean docket pressure) (2) psychological reasonsRule 56 doesnt say should, it asks whether finder could come out either way 3) Courts have other ways to
clean upRule 16 below allows court management of litigation generally they think is appropriate, speedy
and 11 and 37 also make more efficient.

Court Management-Rule 16
a. Standard of Review: Abuse of Discretion.
b. Great deal of power to allow the Dist. court to manage litigation (use local rules about calendars) Rule 16
allows court management at trial stage, increase justice by increasing court control/efficiency
c. Rule 16(a); pre-trial conferences court may order parties and unrepresented parties to appear for one or
more pre-trial conferences for open ended list of purposes like expediting disposition, establishing control,
discourage wasteful pre-trial activities, improving quality of trial, facilitating settlement, etc.
d. Rule 16(c): Attendance and matters for pre-trial conference-courts can do things to push parties
alongprocedure drives substance
e. Rule 16(f): Sanctions: Courts can draw adverse inferences or dismiss case
i. Court can sanction party for failing to appear at scheduling or other pretrial conference, showing up
unprepared or not participating in good faith, or failing to obey scheduling or other pretrial order.
ii. How much court intervention is too much?
f. McKey v. Fairbairn
i. Facts-P brings suit for leaking pipe in apt (she slipped) based on breach of duty on lease. Claiming
negligence; mid-trial, tries to amend pre-trial order to include on housing codes violations (she would
clearly win if allowed). ** In earlier stage, could have amended pleadings per FRCP 15 (judge asks to
make sure) Dist. court judge denied her motion and entered DV for D. She appeals.
ii. Finding-Appellate court upheld dist. courts denial to allow amendment after deadline because no
abuse of discretion since w/in judges discretion not to allow amendmenttrial judges have broad
discretion to exclude evidence supporting a theory of recovery not raised in complaint.
iii. Rationale- Judges dont want to help out one side; inconsistent w/ adversarial system. Require case
be outlined in pre-trial order to prevent dragging out of trial. must stay within the agreement.
g. Sanders v. Union Pacific Railroad Co.
i. Facts P sued employer for work-related back injury. Court order setting deadline for pre-trial
conference. Ps attny had delay + missed courts deadline. Judge warned in form that he would
dismiss the case if party missed in Rule 16. At conf. w/ clerk, attny says hes not ready for trial.
Judge dismisses the case Sua Sponte.
ii. Held: Reversed eventually (case not dismissed). A case may be dismissed for failure to comply with
court order if there is prejudice to other party and lesser sanctions unavailable. Ps attys failures
impaired Ds efforts to prepare for trial (so circuit court affirms). Appellate court en banc panel
overturns district courts dismissal of Ps case because clerk presided over pre-trial conference and
moves it to dif. Judge.
iii. Problem was with the process NOT the substance

41

V.

Judges and Recusal: Recusal presumption in favor of recusal proper in D courts

a. You do not always have right to jury in all civil cases, can be pivotal whether trier is judge/jury, judges
randomly assigned (might get biased judge but safety valve is recusal)
b. Even in jury cases, judges do essential things: control discovery, resolve pretrial motions like 12B6 and 56,
and also post-trial motions like JNOV.
c. Recusal: device to remove biased judges from adjudicating a case. Federal courts have recusal approaches
and states vary as does enforcement. Federal approach is that you are stuck with judge unless he recuses
himself.
i. CA: Parties get 1 free peremptory challenge.
d. Statutes that govern Recusal:
i. 28 USC S144 bias or prejudice of judgeJUST FEDERAL DIST. COURT JUDGES
1. After the motion, another judge decides
2. File the motion if you believe the judge is biased. Careful: may antagonize judge
3. Can only file it once per case, and file affidavits supporting it. Be specific with facts/reasons
(no simple judge shopping will do). Risk: if you win, next judge might not be better and if
you lose, judge wont like you.
a. Exception: If everyone is biased, can bring in another judge from a different
circuit/district.
ii. 28 USC S455 covers any federal adjudicators(disqualification of judge, justice, magistrate, or referee
in bankruptcy--more common/broader, includes all federal system judges) - Party motion or sua
sponte. 455 motions are decided by the judge party wants recused whereas 144 heard by another
judge. 455 puts onus on judge to recuse herself
1. (a): when impartiality may be reasonably questioned Can Waive
2. (b): under the following circumstances Cannot waive
a. (b)(1) personal bias/prejudiced against a party - 144
b. (b) (2)once involved in another capacity/was lawyer involved on the matter in
controversy (in this particular case, not the issue generally)
c. (b) (3) Served as govt employee or expressed an opinion about the particular case in
controversy
d. (b) (4) Has financial interest in subject matter in controversy (may divest and still
proceed)
e. (b) (5) He or his spouse or has relation in this case
i. If there are any of these 5 things, parties cant waive recusal, but if its just
impartiality may be reasonably questioned, parties can waive recusal
3. A party can file a writ of mandamus to move for recusal of non-district court judge if judge
doesnt do it sua sponte.
iii. Why have recusal?
1. fairness/due process,
2. Public relations-we want judges to appear impartial
3. Because of concern for these two things, when judges have doubts they favor recusal but
must still limit judge shopping by not allowing recusal on demand.
iv. In re Boston Children First
1. Facts: P filed suit to challenge Bostoms elementary school assignment process, claiming
violations of state and fed law based on race. Judge Gertner denies injunction. Atnny for P
goes to the press. Judge Gertner writes a letter in a response, and says this case is more
complex. Attny files a motion for 455(a) to recuse the judge,
2. HOLD: court says yes, judge is recsued because case high profile statement was open to
misinterpretation by reasonable person. Rule: The appearance of partiality, even in absence
42

of actual partiality, can constitute sufficient grounds for recusal of judge. .i.e. dont go to the
press.
v. Justice Scalia-Recusal in Cheney:
1. Sierra Club wants Scalia to recuse himself since Cheney named party D and they went duck
hunting together, questioning his impartiality.
2. Scalia says while 455 applies to all federal adjudicators, SC justices are different since seat
would be vacant, one vote could be decisive. Says friendship is good thing and Cheney is
sued in his official capacity, not as person, and that you cant let runaway press turn garbage
into standard that leads to recusal.The presumption in favor of recusal is not proper in the
supreme court.
vi. Mental/Physically disabled judges
1. Judges are protected w/ Article 3 Salary Protection, Life Tenure for federal judges unless
they are impeached
2. Risks: Protection.
a. 28 U.S.C. 270(b) certificate of disabilitysaying this person not capable of
performing their function doesnt happen very often.
VI.

Jury Trial
a. Basis:
i. Right to a Jury Trial: Demand Rule 38
1. Rule 38(a) Right to a Jury trial is preserved by 7th amendment or statutes
2. Rule 38(b) any party (P or D) can demand in writing a jury trial in pleadings or 10 days
after the last pleading directed to the issue (usually within 10 days of an answer)
3. Rule 38(c) can demand jury trial on all parts or just some parts. If you dont demand jury,
you waive right to jurybench trial default
4. Rule 38(d) if you make demand, you dont need other partys permission. waived if not
requested you can also withdraw your demand w/ consent of other pty
th
ii. 7 Amendment:
1. Right to jury trial in suits at CL shall be preserved and no fact tried by jury shall otherwise
be re-examined in any court of the US, than according to rules of common law.
2. 7th Only applies to federal courts. States have their own rules and are less generous in
granting jury trials since its more expensive and states have less resources
3. Preserves: (1) The right to a jury trial as it existed at the Time -1791 (when 7th amendment
ratified) (2) Law (3) Jury Itself . If claim didnt exist in 1791see Terry case.
4. History two types of cases. We look to British system since codified in 7th amendment
a. Court of common law: Juries available for Legal Relief, $ damages, decided by jury
b. Court of equity: No Juries for specific remedies (injunctions), decided by bench
b. When do you get jury? the TEST
i. Is Rule 38 Satisfied-party proper time/place jury demand? If noBench Trial. If yes then ask
ii. Can this issue go to the jury? separate claims out then look to 7th amendment/Terry case
1. Old Claim look at 1791if right existed then, do what they did then.
2. New Claim
a. Ask if Congress gives answer? - often said in a statute/what Congress wants. If not
specified by Congress, then do
b. Historical Analogy Test 2 part conjunctive test, but remedy more important
i. Find Closest Analogy to Claim that Existed in 1791 and
ii. Examine Remedies Sought (legaljury, equitablejudge)

43

3. Capacity and expertise-missing 3rd element Would judges or juries be better suited to hear
this type of claim based on expertise and reliance on outside knowledge?
iii. Chauffeurs, Teamster v. Terry 1. Facts: 27 ppl w/ seniority status lose their rights/fired. They are part of a collective
bargaining agreement and unhappy with result, filed action against union D, contending that
D breached its duty of fair representation by only representing 2 or their 3 claims. D moves
to strike Ps jury demand.
2. Held: Ps get jury. Ps in fair representation suit against union are entitled to a jury. 2 issues
here1)whether McLean breached collective bargaining agreement (like breach of contract
action which gets jury) and 2) whether union breached duty of fair rep (new claim but using
HAT- like breach of fiduciary duty by trusteean equitable action). So issues are both legal
and equitable, but remedy sought is back pay (like $ damages), so more like one of law,
getting jury.
3. REASONING: This is a New Claim. Congress doesnt tell us, so the court applies the
H.A.T. the court reasons that it is the most similar to trustee. They are also seeking
monetary damages, thus the this is legal relief Jury Trial is granted.
iv. Markman Case --- Deviation from norm Functional/ Consequential focused analysis.
1. The court decided Judges are better suited in Patent cases. --- the Patent case depended
more on complexity, intricate, etc -- i.e. Better to have Judge to figure it out.
c. Order of Operations for partial jury cases
i. Jury claims precedes judge, according to Beacon, and jurys findings would control as to any
common factual issues in the rest of the litigation.
1. This may be an incentive for parties to include legal claims to get a jury.
ii. Amoco Oil Co. v. Torcomian:
1. Facts: Torcomian D took over service station/tried to become franchisee of Amoco P.
Amoco P sues for 6 different claims, seeking ejectment and lost profits as result of wrongful
possession. At beg. of trial, P sought to orally amend complaint to delete portions seeking
money damages to prevent D from getting jury trial. D filed counterclaim for breach of
contract, seeking damages. Trial court ruled for P, saying no jury, and D appeals.
2. Held: Some claims get jurynew trial granted (error not harmless). Equitable main claim
cannot preclude jury trial on legal compulsory counterclaim. Court looks at all the claims
asserted (esp. compulsory claims). The district court sent all the claims to a bench trial, but
the App. Court decides that there were legal claims need to go to the jury. The court should
separate the claims. When case has both, party still entitled to jury trial on legal claims. New
trial-jury trial goes first, then bench.
iii. Parkland Hosiery v. Shore: Where a judge enters a judgment on an equitable claim, that judgment will
control, and thus preclusde a jury trial on any subsequent legal claim arising from same issuehere,
the judges finding in a previous equitable suit controlled the second action.
d. Jury Trial Basics
i. Abuse of Discretion Standard
ii. Why have Jury? -- Positive/ Negatives
1. Sociological: a better cross-section of people. Benefits of collective decision making.
Wisdom of crowds leading to better outcomes.
2. Political: jury is safeguard of people, a check on govt, can nullify laws by preventing
enforcement
3. Historical: 7th amendment. Its what we do.
4. Social: jury verdict confers social legitimacy on verdict since by cross section of people.
5. Practical/tactical: People take tactical advantage of it, takes a lot longer, costs a lot more and
a lot of attorneys believe that it is more bending to emotional appeals.
44

iii. Size: Rule 48 - as low as 6 jurors, and as many as 12 (often have +2 alternatives).
iv. Decision Making Limits: Must decide unanimously in federal courts unless parties stipulate otherwise
(which is rare) + supposed to follow judge instructions.
v. Who qualifies to serve on jury?
1. Venire random calling from public records to get jury pool of qualified 50-100 people.
a. 28 U.S.C. 1861-1881 rules of venire
i. Has to be US citizen, have lived in relevant judicial dist. for over year, must
be literate and speak English, must be non-felon or restored.
2. Voir Dire the process by which you question prospective jurors, trying to figure out when
to use challenges to ultimately choose jury. In fedl court, judge asks questions, in state
courts, attys ask questions.
a. Goal: to obtain an unbiased Jury. / Reality: the attnys are using it get favorable jury.
b. Challenges: 2 ways to shape the jury
i. For Cause - ill-suited for a particular suit (kind of like recusal)juror has to
show some bias/financial stake in litigation/prejudice
1. Must tell the court why a particular juror should be removed for
cause.
2. You get as many for cause challenges as you need.
ii. Peremptory: for anything: except for race, gender or religion.
1. No explanation necessary.
2. Get 3 peremptory challenges you can use at anytime.
3. To challenge peremptory challenge
a. Step 1- Must make prima facie case of discrimination by
showing a pattern
b. Step 2- Other party can rebut by articulating neutral
reasons (like he squirmed when I showed pics, or
didnt like his hair cut.)
c. Step 3- Moving party must rebut, Show that it was a
pretext hard to win since courts very willing to accept
most peremptory challenges
c. Thompson v. Althemer : biased jury is structural error that is harmful error always
i. Thompson sued employer, alleging racial discrimination. During voir dire,
juror state she is business owner which may sway her judgment. Judge
refused to strike juror for Ps cause, and P didn't have any peremptory
challenges left. Case tried, and jury found for D employer. P appealed,
saying juror should have been struck for cuase.
ii. HOLD: Juror must be excused for cause if they hold belief that would
impede them in giving due weight to evidence and following instructions.
The judge should have asked her specifically if she can separate an average
case (which she sees as spurious), from this particular case. Harmful error
presumedreversed and P gets new trial.
vi. Court Controlling the Jury Devices
1. Before trial:
a. Control over discovery - controls the evidence.
b. Rule 16 courts manage structure and time of litigation.
c. Rule 12B6-Motions to Dismiss for failure to state a claim
d. Rule 56-Summary Judgment
2. After Trial
a. Judgment as a matter of law
45

b. New trial
3. During Trial **focus**
a. Courts can exclude evidencewhat jury decides influenced by what it sees
b. Jury preparation-courts assist in creating jury
c. Jury instructions -- Rule 51 limits what juries consider and dont considertrying
to satisfy 2 audiences
i. Jury-often not lawyers, need straightforward instructions
ii. Appellate courts-instructions must be technically accurate
d. Judge's relationship w/ the Jury -- jury wants to please the judge and looks for cues
from judge
e. Directed Verdicts-see next pg.

SECTION 7: TRIAL
Get juryopening statementsevidenceclosing statementsjury instructionjury deliberationverdict (general or
specialjudges prefer general)
*Only 2-3% of federal civil cases actually go to trial. Note: Bench trials dont give verdictsthey give opinions divided into
findings of facts and conclusions of law (required by Rule 52 to facilitate appellate review)
3 Standards of Appellate Review
1. Abuse of Discretion
2. Clear error-findings of fact reviewed on clear error, deferring to trial court. Reviewing court must be left with definite and
firm conviction that mistake was made
3. De Novo-conclusions of law reviewed de novo, no deference to trial court
I.

Burdens-assigned to a party to do a particular thing before or during trial

a. Types of burdens
i. Burden of Pleading - write down what you claim or else its waived. P bears burden of pleading
claims in writing, D bears burden of pleading affirmative defenses
ii. Burden of Production - show evidence to prove your casecould be witnesses/tangible items. Most
cases built on circumstantial evidence (little facts)
iii. Burden of Persuasion- burden of convincing the fact finder that you are right (P presents evidence
first since she bears burden of proof)
b. Standard of Proofs what you have to do to prove your point. (effected by prod +pers)
i. Beyond a reasonable doubt (about 100%, used in criminal cases)
ii. Clear and convincing evidence (60-65%), rarely applied
iii. Preponderance of evidence - 50% + - more likely than not (standard for civil cases)
c. Inferences- the law tries to keep them reasonable, set up facts to lead finder to draw inferences (see Reid)
d. Reid v. San Pedro, LA & Salt Lake RR
i. One of Reids P cows got on tracks and hit by Ds train and killed. Cow had access either by going
through negate negligently left unrepaired by train or gate negligently left open by Reid. Cow hits a
train. Issue: how did the cow get on to the track ? RR not liable if gate/liable if fence. Jury found
for P and D appealed.
ii. HOLD: for D RR. P has burden of presenting evidence that it is more probable than not that D is
laible in order to overcome a motion for DV by the D. The plaintiff (Reid) has the burden of
showing that RR was liable w/ preponderance of evidence (50%+1). Court takes case out of jurys
hands, and awards the RR.
46

II.

III.

Directed Verdicts
a. Even when looking the light most favorably to the other party, there is only ONE reasonable way it comes
up (similar to summary judgment).
i. Differences from SJ:
1. Timing: Direct verdict comes during trial after the other side presents evidence.
2. Evidence presented: different types (more or less)
3. Relevant Rule: Rule 56 for summary judgment, Rule 50 for Directed Verdict
b. Rule 50 Directed Verdict-decision by judge that the claim can only come out one way, that there is only one
reasonable set of inferences so he takes decision away from jury.
i. Standard of Review: Do Novo Review
ii. Rule 50(a): applies to jury case, claims or defenses, all or part
1. The legal standard is "reasonably jury would not have a legally sufficient evidentiary basis".
All reasonable inferences in the light most favorable to the non moving party.
2. Timing: 50(a)(2): Party can request directed verdict after other side is fully heard but
before the jury instructions. Opening statementsP presents all evidenceD can move for
DVD presents evidenceeither party can move for DVclosing statementsjury
instructions (can no longer move for DV)delib./verdictpost trial motions like JNOV
iii. Rule 50(b): Can file post-trial motions 10 days after- JNOV and New Trial.
1. They are renewed, and thus require pre-req of Direct Verdict motions before JNOV/NT.
iv. DVs are like SJ because look at evidence in favor of non-moving party but different because
1. SJ is before trial, DV during trial.
2. SJ is vaguer, more predictive, no evidence given yet whereas DV made on evidence already
seen at trial.
3. Different rules-SJ is Rule 56, DV is Rule 50 (judgment as matter of law applies to SJ, DV, &
JNOV motions).
v. Why would court deny DV motion?
1. Reasonable jury could come out either way.
2. Efficiency: Courts may let this play out and wait until after the trial for efficiency reasons
If Dist. Court denies DV motion, but jury enters wrong result, judge can issue JNOV, and
appellate court affirms JNOV or remand using jurys decision w/out ordering new trial.
c. Pennsylvania Railroad v. Chamberlain (see also Reid above)
i. Facts: action for negligence by train brakesmans heir against the RR contending that certain rail cars
collided killing the brakesman. P has 1 witness, D has 9 witnesses. Ps witness did not see the
collision (requires inference); Trial court entered DV for railroad company D. Reversed on appeal.
ii. HOLD: DV for D RR is appropriate (affirming dist. court). Where there is true conflict of
testimony, evidence must be left the jury, but here there was no such conflict (like Bias case)
1. The court is making credibility determinations here. Asking should instead of could.
JNOV and New Trial devices courts use after trial--must file directed motion during trial.
a. Both are usually filed together and courts can allow a new trial on just a part of it (rare).
i. JNOV post-trial judgment as a matter of law
1. Standard of Review: legal, so De Novo Review
2. Rule 50(b) same idea as Directed Verdict, just different timing. Ask if only one reasonable
outcome after drawing all reasonable inferences on the non-moving party.
3. The legal standard is "reasonably jury would not have a legally sufficient evidentiary basis".
4. Timing: You have 10 days after trial to file your JNOV motion (renew DV motion)
5. Cant file JNOV if didnt properly file DV during trial. Why have a conditioned precedence?
a. Efficiency Since so obvious, should have given dist. court opportunity earlier.

47

b. 7th Amendment:- no fact tried by jury shall be retriedyou cant reexamine facts
found by jury unless common law allowed it. Common law allowed DVs but not
stand alone JNOVs so we put them together, saying its just renewal.
ii. New Trial Rule 59can be all or part do-over
1. Standard of Review: Abuse of Discretion
2. Timing: You have 10 days after judgment to file for new trial.
3. Can grant a new trial for any reason a new trial has heretoforebeen granted can be
granted on two grounds
a. Errors in Procedure:
i. Errors made by the court (jury instructions, evidence, bad arguments, etc.)
that might have had real impact. Not about what the jury did.
ii. Can do it Sua Sponte. Rule 59(d)
b. Errors in Outcome: About what jury did. 2 different types
i. Jurys verdict legally untenable, internally inconsistent (Ex. special verdicts)
ii. Jury reaches a dubious result running against great weight of evidence.
(similar to JNOV but judge not confident enough to say jury got it
right/wrong). Lind case identifies 2 factors.
1. Complexity of case (too hard for jury to understand)
2. Character of evidenceis this type of evidence jurors can deal with
well? Ex. Jurors understand witness testimony but many not heavy
documentary review.
4. Rule 50(c): If court grants JNOV motion, it must rule on any new trial motion. JNOV
motion is final even if new trial granted. If JNOV motion appealed, could then get new trial.
5. Lind v. Schenley Industries
a. Facts-P sues employer D for breaching oral promise to give him increase in
pay/share of commissions. P and his bosss secretary testify to such promises, Ds
agents deny. Jury found contract was created/awarded damages to P. Trial court
granted Ds motion for JNOV, and alternatively for new trial because against great
weight of evidence.
b. Held: Reversed in favor of Pno JNOV for D and no new trial. Nothing indicated
that jury was not properly presented with correct evidence, and judge cant nullify
jury verdict by granting new trial if evidence admits of conclusion made by jury (we
trust jury to interpret witness testimony). Here, the problem was error in outcome.
Judge shouldnt be looking at the veracity of the witnesses like the 13th juror. It is
improper for judge to order new trial on grounds that verdict was against the weight
of the evidence, so dist. court abused its discretion.
c. Factors: type of evidence is it hard to figure out or no? since this case is about
the witnesses, the jury can figure it out.
IV.

Jury Deliberations
a. Reexamination clause of the seventh amendment provides substantive protections for Jury D.
b. 2 Principles of Jury Deliberation
i. Black Box idea: what happens in the jury, stays in the jury.
ii. Anti-Tampering idea: Jury should not be tampered by outsiders, the judge or attnys. Contradiction:
How can figure out if tampering if jury in black box?
iii. Policy: WHY have this?
1. History: Have had it since early 20th century.
2. Finality: Have to trust jury at some point
48

3. Protect Jurors: stop losing parties from harassing the jurors and public scrutiny (dont even
allow jurors to waive it)
4. Protect deliberative process: (kind of like privilege).
iv. Peterson v. Wilson
1. Fact: P filed suit after fired as grant directors and jury awarded him. Ds moved for new trial,
and dist. court granted it because of comments mad eby jurors after verdict indicating they
had disregarded courts instructions. Case was retired and Ps claims rejected by 2nd jury. P
appealed the grant of new trial.
2. Hold: Held for P employee, no new trial, he gets first trial verdict. The admission of juror
testimony to impeach jury verdict is impermissible. Trial ct judge impermissibly interviewed
jurors, for reason besides determining if there had been extraneous influences, and then
admitted that info as evidence and made decision outside presence of parties and counsel.
a. Ex Parte: Judge impermissibly met with jururs w/out presence of the parties.
b. Judge cant use this info anyways (Fed Rule of evidence 606b-info about
deliberation cant be used. (see rule right below)
v. Rule 606(b): Only applies to Jurors but in both civ. and crim. trials. Cant use juror testimony about
jury deliberations to impeach verdicts those jurors have reached.
1. Jurors cant testify about internals of deliberation: " a Juror may not testify as to any matter
or statement occurring during the course of the jury's deliberation as to the effect of
anything upon that or any other juror's mind or emotion as influencing the juror to asset to
or dissent from the verdict.
2. Can testify about EXTERNAL stuff:
a. Home projects (evidence not introduced), the use of the bible is external.
b. Outside influences like bribes, threats, etc
c. Drugs, etc.. is not external (see Tanner)
vi. Tanner:
1. D gets convicted for fraud against the U.S. government. Jurors contact Ds attny to testify
about the jury conduct alcohol, drugs, drug dealings, jurors falling asleep, etc. Ds file for
new trial and court denies it citing rule 606B.
2. Hold: Supreme Court says these are Internal factors, like a virus, bad food, or lack of sleep
within the scope of Rule 606(b). Justice OConner also redefines jury deliberation as entire
trial/any jury talk during thetrial (broad definition)
V.

Appeal

PleadingsDiscoveryMotions to dismiss/SJTrialJNOV/New trial motionsAppealPreclusion

a. Responsibilities of the Parties TEST
i. Steps of Appellants (the one who files the appeal, wants a change in what lower court did)
1. At District Court: Must raise the issues (raise it or waive it) and must state the reasons (and
stick with them, unlike appellee) (no need for formalities - Rule 46)
a. Why raise it or waive it? trial is main event, give dist. court chance to self-correct,
dont want parties t disguise things then bring up later, etc
b. Cant waive: SMJ, dramatic change in the law, Plain Error standard (court will only
reverse waived issue if plain error standard appliesabout the integrity, dignity,
reputation of the courts).
2. At Circuit Court: file a notice of appeal/proper paperwork and bring up those issues. (in
crim. court have 10 days to appeal, in civ. cases 30 days)
a. Must show up and show that the trial court made an error.
49

b. Error was of some consequence (harmful)

ii. Steps for Appelles (want the verdict to stand)
1. At D Court: Sustain what D court did. Can bring up other reasons on appelllants appeal as
long as in the record, regardless of whether district court relied upon them (can bring up
things that were ignored/overlooked).
2. At Circuit Court:
a. Show there was no error, or no harm.
b. Can also file a cross-appeal. (same rules as above)
b. Who can appeal? (see Forney)
i. Losing Party rule: Only losing/aggrieved parties in the case that lost a part of the remedies can
appeal. Party must be at least party subject to adverse decision.
1. Look at the remedies of relief sought must lose remedies sought not claims (you can lose a
claim but not any remedy)
2. Remedies can include $$$ and other stuff. If you get less than what you wanted, can appeal.
3. Lots of errors at dist. courts go uncorrected on appeal because if you are winning party you
cant appeal and if you are losing party you can only appeal if show you didnt get everything
you wanted and that error was harmful.
ii. Forney v. Apfel (1998)-she can appeal.
1. Facts: Forney sought disability benefits from SS administration and they were denied to her
so she triest to appeal to district court, asking for reversal, and in alternative, remand..
2. Issues: She wants (1 - all) outright reversal or (2- half) rehearing of the case. Can she appeal
if the court grants her option (2)?
3. Hold: Dist. court does not reverse but instead remandspartial victory for P. She is in fact
aggrieved party because she didnt win entirely-she only got half of what she wanted so she
can appealLosing Party Rule.
iii. Aetna case: Aetna loses on fraud claim but wins on contract claim. It seems like Aetna cant appeal
the fraud claim since more generous treatment but court says Aetna can appeal since Aetna argues
that although they didnt lose out on any $, losing fraud judgment, since they are going bankrupt,
loses them a valuable place in line.
c. When can parties file an Appeal? Have 30 days in civil cases, 10 in criminal cases.
i. RULE: Final Judgment Rule- 28 USC 1291. one which end the litigation/makes final judgment
on the merits and leaves nothing for the dist. court to do but execute the judgment.
1. Rule 58- Dist. court needs to enter judgment via separate documents (often doesnt)
2. FJR codified in 28 USC 1291-governs move from dist. courts to circuit courtscourt of
appeals have jurisdiction of appeal from all final decisions of dist. courts and review sua
sponte. (move from circuit to SC governed by 1254, while circuit court needs to wait,
supreme court doesnt and can grab)
a. Why require final judgment? Policy
i. Focus: To keep the focus on trial as main event.
ii. Efficient: Want to avoid piecemeal litigation.
iii. Obviation: Waiting may obviate the need for more litigationif you got
what you wanted, no need for circuit court to intermeddle
iv. Docket: fewer cases by forcing parties to wait
v. Counterargument: unnecessary delay, costs, inefficient, financial imbalance
favoring wealthier parties who can stay in game until final judgment.
3. Ex. JNOVdist. court got it so wrong that circuit court doesnt just vacate but reverses. If
you file JNOV motion and win it, nothing left for dist. court to dofinal judgment so other
party can appeal.
50

4. Ex. New TrialYou file for new trialif you lose motion that is final judgment and you
can appeal immediately. If you win new trial motion, something left for dist. court to do
(new trial) so other party cant appeal.
JNOV
New Trial
Final Judgment?
L
L
Yes
W
L
Yes
W
W
Yes (50C)
L
W
No
*50(c) you have to grant new trial conditionally even if you grant JNOVdoesnt change
finality of JNOV
5. Liberty Mutual v. Wetzel
a. Facts: P Wetzel sued Liberty Mutlas D employee insurance benefits and maternity
regs discriminated against women. She seeks $, attys fees, and injunctive relief. P
wins partial SJ on the merits on issue of liability only. Damages/relief not yet
issued. Circuit court found Jurisdiction via 1291.
b. Hold: No final judgment so not appealable. Still things for the D court to do. Rule
54B is limited expressly to multiple claims actions in which one or more, but less
than all, of claims have been finally decided. Does not satisfy any of the exceptions
(not 54(b))b/c there is only one legal claim for relief.
ii. 4 EXCEPTIONS to FJR (when you can appeal immediately): Policy:cant allow exceptions to
swallow FJR.
1. Rule 54(b): (see Liberty Mutual above) Immediate appeal allowed when case has lots of
things going on and court says its done with this part/you can appeal this part right away
(partial FJR). 2 part conjunctive test
a. Multiple Claims and/or Multiple Parties (3 or more) +
b. Expressed determination (written) of FJ on claim/ no just reason for delay
2. 1292 Interlocutory appeals for Injunctions or 4 big Qs
a. 1292(a): Can appeal decision granting, rejecting, or modifying Injunctions OR
i. Example: Southwest Voters (yes court allowed appeal because there was
decision denying request for injunctive relief), Wetzel (appeal not allowed
since no ruling on injunctive relief)
ii. Does not apply to TROs since they are time limited (10 days), mitigating
effect of TROs.
b. 1292(b): Can appeal immediately when 3 Big Questions- Test
i. Issue is one controlling question of law (central to merits, unlike collateral)
ii. Substantial ground for difference of opinion (look for other courts to
disagree, not enough that you just disagree with court)
iii. Immediate appeal might materially advance termination of litigation (FJ)
1. 1292(b) is very expansive (many things meet these 3 things) but not
used often because of limits:
a. Text: Dist. court must certify (write it down that it meets
these 3 things), Circuit court has discretion not to write it
down and usually thinks it got it right. Parties must apply
for immediate review within 10 days after entry of the
order and appellate court can deny thisso you have to
get courts at both levels to agree you satisfy 3
requirements.
51

b. General Practice Exceptions: Reserved for really big

cases. mass torts, environ cases, affirmative action
(controlling issue of law, various opinions about it, and
immediate appeal might advance FJ)
3. Collateral Order Doctrine (C.O.D) - Appeal from an interlocutory order may be brought
to hear and determine claims collateral to the merits of the case and which could not be
granted adequate review on appeal. They are pre-judgment decisions that will impact the
outcome of the case, but are separate from the merits of the case.
a. Conclusively determine the disputed question +
b. The issue is important and collateral +
c. The issue is effectively unreviewable on appeal from FJ (tough to satisfy)
i. Right must be destroyed if not appealed right away.
d. Has been recognized in immunity/right to be in the litigation -- Right = not to enter
the court (this is destroyed if you wait until FJ).
e. Does not apply to 12(b) Rules.
f. Lauro Lines v. Chasser No C.O.D
i. Forum selection clause for wrongful death case does it apply C.O.D?
ii. No although it satisfied (a) and (b), it is not effectively unreviewable on
appeal. Court can reverse the judgment (doesnt care about costs)
iii. Rule C.O.D. applies only if your legal right is effectively destroyed.
g. Dr. Sell vs. United States Yes C.O.D. (Crim Case)
i. Dr. Sell prosecuted for fraud and attempted murder. Dr. Sell is forced to
take meds to be sane. Can he appeal? -- no FJR
ii. It fits the C.O.D. it is effectively unreviewable, but may not be collateral.
iii. Scalia Dissent: (1) Practicality (more will do this) (2) Jurisprudential court
is expanding C.O.D. more.
4. Writ of Mandamus Quasi-exception to FJR because it is new claim filed at a superior
court, asking for extraordinary writ-an order from a court to somebody (can be another
federal official, often from superior to lower court) telling them/court to do something.
Mandamus is different because you must file a new action vs. the judge.
a. 1361 empowers D courts to issue Writs of M to compel federal employees or
agency to perform duty owed to P
b. 1651 empowers federal courts to use writs to protect their own jurisdiction,
protect usurpation of judicial power, usually when court wont resolve merits (sits
on it), or when court wont transfer, judge wont recuse (In re boston), when court
decides to exercise PJ when it shouldnt (WWVW)
c. Embarrassing for judges, and rarely issued. Ex: Gertners recusal, PJ cases (Asahi)
d. Cheney v. US District Court for DC:
i. P wants info about who goes to NEPDG meetings. D court allows
discovery. Cheney seeks writ of mandamus.
ii. DC Court: denies the writ b/c Cheney should have first invoked executive
privilege. Mandamus is the last shot- but the Court gives detailed
instructions. (done very often)
iii. Appeals court grants writ, and SC reverses, Kenneyd says that there are no
other adequate means because invoking exec privilege would embarrass
executive, and that Cheney not required to assert it before separation of
powers arguments raised in petition could be considered. The supreme
court says this test is not proper for Executive Branch.
e. Cheneys 3 conditions for Writs of Mandamus:
52

i. Party seeking writ has no other adequate means to attain relief he desires
ii. Right to writ is clear and indisputable/unmistakable-its obvious what
lower court is doing is wrong
iii. Writ must be appropriate in circumstances-even after you show you are
entitled to something, have to show its appropriate/within courts discretion

d. Standards of Appellate Review-USE ON TEST!

i. Abuse of Discretion-most deferentialCourt management--Rule 11, 26(g), 37 (sanctions), 16 (mechanical
court organization), 59 (new trial)all about district courts ability to manage things going on in
front of it. Q is whether there was abuse of discretion outside the realm of that court.
ii. Clear Error-some deference-Apply when Questions of FactAlthough there is little evidence to support it,
reviewing court is left with the definite and firm conviction that mistake has been committed.
Appellate court cant see witnesses to determine credibility so more deferential. Trial court has
experience/expertise, proximity, efficiency (doesnt make sense for documentary, but no distinction).
(see Anderson case below)
iii. De Novo Reviewno deferencelook at it anew--Apply when Questions of Lawappellate court just as
good to make decision as trial court. Ex. Questions of statutory interpretation, 12B6, SJ, directed
verdict, JNOV
1. Plain Error MOST deferential-"where the error has seriously affected the fairness,
integrity, or public reputation of judicial proceedings" most common in crim cases where
witnesses lie or prosecution hides evidence, when parties have waived the issue, can only be
reversed on plain error.
e. WHAT TO DO WHEN FACED WITH HARD CASE
i. Ask if question of law (do you have to know anything about law to answer question) or question of
fact?
1. Separate the pieces (Cooter v. Gell).
vi. Review what district court did.
1. Did district court commit an error? (depends on standard of review).
a. Anderson v. Bessemer City fact = clear error.
- Facts- P sues D for gender discrim, when denied position of Rec.
Director because of her sex. At a bench trial, district ct found that
discriminatory intent was present. The judge adopted almost verbatim the
findings of fact and law proposed by P. App ct reversed, holding that
lower courts findings were clearly erroneous.
- Finding- Reversed, held for P, affirming her dist. court verdict. Under
Rule 52A, a finding is clearly erroneous only when, although there is
evidence to support it, reviewing court is left with definite and firm
conviction that a mistake has been made. Cir ct incorrectly conducted a
de novo weighing of the evidence and changed findings of fact where
there were two plausible conclusions. Thus, b/c its finding of fact were
plausible, the district ct was not clearly erroneous.
2. If yes then ask was the error Harmless? If error made no difference, dist. court decision
wont get reversed.
a. There are few situations where harmless error doesnt apply, like with structural
errors like SMJ, bad and biased jury composition (Thompson), serviceno mistake
is harmless, errors presumed to be harmful
a. Harnden v. Jayco Inc. pushes the idea of harmless back.
i. Facts Harden bout Jayco rec vehicle, defects never fixed, sued D
manufacturer for breach of contract (8 claims total). Expert report by D
53

employee said problems were minor and did not stem from manufacturer,
and P did not rebut these conclusions. Dist. court granted D summary
judgment, and on appeal, Ps atty objected to admission of expert report
since not an affidavit or sworn statement required by Rule 56E, so was
inadmissible hearsay.
ii. Hold: 6th Circuit allows report, because while there is a mistake, it doesnt
matter. Admission of expert report is harmless error where opposing party
knew the contents of the report, and remanding the case would result only
in change in format of the report. P could have reubutted it but did not.
So even though dist. court relied on inadmissible evidence to grant SJ for
D, court affirms since it was harmless error, leaving error in place.
1. Rule 61 Harmless error-default is dont reverse unless justice
requires (if causes harm)
2. Sec. 2111 ignore errors that dont affect partys substantive rights.
3. Policy: efficiency. Why worry about something that wont matter?
VI.

Preclusion
a. Basics:
i. Outcome or decision in the first case will "preclude" litigation in a second case.
ii. You can waive preclusion affirmative defense if you forget to bring it up in enough time.
iii. Due Process (get at least one chance) vs. Preclusion (Limits a party to the one chance) Why?
1. Policies:
a. Efficiency. It is economical to do it only once/conserves judicial resources (favors
winning parties and the courts)
b. Finality/Repose: want ppl to be able to rely on previous court decisions.
c. Fairness: due process ensures you get your opportunity, but preclusion protects Ds
from having to defend multiple times.
d. Consistency/Comity: respect for judgment and respect legitimacy. (cant appeal w/
2nd case - Martino)
iv. Most are subsequently filed cases, but for concurrently/simultaneously pending cases (both pending
in federal dist. court at same time)
1. Related Case Principle: Judge can issue related case order to bring cases under 1 judge (only
works if all in same federal district)
2. First File Rule: If in different districts, related case orders dont work so courts use first file
rulefirst case filed goes first, 2nd case waits and goes second.
a. Policy behind this rule? Consistency in judgment and efficiency (one judge can
organize discovery but cost is that there are races to courthouse).
b. Claim Preclusion Res Judicata
i. When looking for preclusion, it pops up in second case as Ds affirmative defense. D raises
preclusion as affirmative defense via 8(c) in its answer + makes motion for SJ (attaching judgment
from 1st case).
ii. Court 2 tries to follow the laws of the rendering jurisdiction of Court 1 (preclusive effect)
1. Statefederal: Section 1738 Full Faith and Credit Actproceedings in one state have the
same affect in other states. Ex. If MO state court would say precluded, federal courts have
to say claim precluded.
2. StateState: Full Faith and Credit Clause of the Constitution
iii. Recipe for Claim Preclusion
1. Both cases involved Same Claim
54

a.

2.

3.

4.

5.

Look at court 1s definition of claim Primary Rights vs. Restatement 2nd because
what first court does controls.
b. (1)Federal Courts use Restatement 2nd definition: Claim defined broadly and
includes anything that was related to the event/transaction that gave rise to the
initial suit, regardless of whether they litigated it or not. Majority of states use this.
c. (2)Some states (like CA, IL, and NY) use Primary Rights: narrower definition of
Claim focusing on common facts, evidentiary requirements, and legal arguments
(how much overlap between claim initially brought and claims could have brought,
do you have to prove same things in first case to win second case?)
i. Frier
1. D police had garage tow Friers P gar because it was parked in
trafficP didnt receive citation or hearing and
2. Case 1: P sued D and garage in state court for replevin (to get car
back). City wins-judgment on the merits.
3. Case 2: P filed 42 USC 1983 suit in federal court, seeking equitable
relief and compensatory and punitive damages from D for
depriving him of car without due process. Dist. court dismissed
for failure to state claim, and P appealed, arguing no preclusion
since under dif legal theory than first state court action.
4. Issue: Is the second case precluded?
5. Hold: Ps claim precluded since 2nd claim arose out of same
transaction. It was the same claim-both alleging same conduct that
D towed and detained cars. Illinois applies primary rights
approach which instead of just connecting back to same
transaction, is harder because looks for same operative facts.
Involved the Same Parties required for claim preclusion but not issue preclusion
a. Can Include: The named parties, Person in Privity "so identified in interest with
another he represents the same legal right" (successive property rights, survivors of
estates, insurer and insured, trustees), if someone signed expressed
agreement/contract to be bound, procedural/virtually represented parties (class
actions)
b. Searle
i. Case 1: Divorce caseEdlean v Woody. Slaugh House is 1/2 of Woody's.
Edlean wins entire property.
ii. Case 2: Searle Bros. the partnership sues Edlean claiming undivided onehalf interst in it. Trial court held precluded.
iii. Hold: Though interest of father were fully defended in divorce case and 2
sons had half interest in house, sons interests werent same as fathers, and
they could not have joined the suitnot same partiesno claim
preclusion. The father is not an agent of the party sons may sue.
Final Judgment on the first claim - any court (even trial). In federal court decision is final
when trial court is done, even if appeal pending. In practice, wait and see what happens on
appeal.
Judgment on the merits: ex. Verdict, SJ, JNOV, motions to dismiss, Consent Decrees,
12(b)(6) motion, with prejudice = on the merits.
a. Not on the merits: personal jurisdiction, service, venue,
Judgment by a court of competent jurisdiction
a. Apply the law of the 1st court. It must have had jurisdiction to issue decision in the
first place.
55

b. Includes SMJ and PJ, maybe notice, but not venue

c. Gargallo v. Merrill Lynch et al-define competent jurisdiction way the first court would
i. Gargallo P had brokerage account with Merrill Lynch D. When
investments went poorly, Gargallo P ended up owing ML $.
ii. First Case: ML v. G in state court. G files a counterclaim. G says they
violated federal securities act - Federal SMJ). State ct dismisses Gs
counterclaim for failure to comply with discovery requests.
iii. Second Case: G v ML in federal court. Court dismissed based on res
judicata (ML files affirm defense of claim preclusion) and P appeals.
d. Hold: No claim preclusion Ohio state court would not give preclusive effect to
judgment on which they had no SMJ.
c. Issue Preclusion (collateral estoppel)-issues are narrower subcomponents of claims.
i. Same Policy
ii. Basic Notes:
1. New party can use issue preclusion against an old party. Old party cant use issue preclusion
against new party because due process guarantees new party day in court. A party that never
had opportunity to litigate cannot be precluded from doing so.
2. Defensive non-mutual issue preclusion new defendant using issue preclusion against old
plaintiff
a. P1 v. D1 (P1 loses on issue X), P1 v. D2 (the new D2 uses an old resolution of
an issue to get issue preclusion on issue X)
b. Non-mutual defensive issue preclusion is okay since good use of judicial resources,
efficient, finality (encouraging Ps to get all Ds in one spot since otherwise new Ds
can use issue preclusion against you).
3. Offensive non-mutual issue preclusion (more contentious) new plaintiff using IP against
old defendantnot always okay, use test from Parklane
a. P1 v. D1 (D1 loses), P2 v. D1 (the new P2 tries to piggy back off the work of P1)
i. If P1 loses, that means nothing to P2, but if P1 wins, P2 can also win if gets
issue preclusion, providing wait and see incentive for new Psbut courts
dont say well never allow offensive issue preclusion, but instead apply
abuse of discretion review allowing it when 2 things inform discretion of
trial court
1. Look at behavior of 2nd P-was the P just engaged in cynical wait
and see attitude or was P2 engaged as much as he could be but
limited by procedure options? Ex. In Shore, Shore could not have
joined the SEC team even if he wanted to, so Shore gets benefit of
issue preclusion.
2. Ds incentive to litigate vigorously/defend themselves in 1st case
(like if 1st case was for $1 and 2nd for $1 million., or did D have
every opportunity to vigorously defend himself?). Ex. In Shore,
Parklane D had every opportunity to defend itself in 1st case (could
have even gone out of business).
iii. Recipe for Issue Preclusion
1. Same Issue (fact or law)
a. Narrower than a claim can include parts of a claim, particular causes of action,
particular defenses, or standard/ burden of proof (OJ case),
b. Issue needs to be litigated and determined --- claim does not have to be litigated
(compensatory counterclaims)
c. Over determined verdicts: jurisdictions + restatements are split.
56

d. *Dont need the same parties.

2. Actually litigated and determined (unlike claim preclusion where it only could have been
litigated)
a. Illinois Central Gulf Railroad v. Parks
i. Parks P and his wife injured when car collided with Ds train.
ii. Case 1: Parks P wife recovered $ for her own injuries (court finds RR
negligent), but judgment rendered for D RR on Ps claim for loss of
service/consortium.
iii. Case 2: P sues RR for his own injuries.
iv. Rule: If jury makes decision on two or more options in a general verdict,
then none of the issues is precluded because it is not possible to know if
both were actually litigated and determined. -- it could have been b/c many
reasons in this case.
v. 1st jury could have found P contrib. negligent or J not injured. Because not
clear which option the jury chose, cannot say that issue was litigated or
determined, so no issue preclusion. (Given that jury had to find RR
negligent for wifes injuries in order for her to win.)
vi. No P can piggy back on finding of negligence in first case, but RR cant get
issue preclusion on contributory negligence because cant tell if actually
litigated/determined or essential to judgment.
b. See above about defensive vs. offensive.
c. Parklane Hosiery Co. v. Shore - Offensive Issue Preclusion allowed in this instance
i. Shore P brought shareholders class action against Parklande D alleging D
had made materially false/misleading statement in violation of Securities
Exchange Act.
ii. Case 1:SEC sues Parklane about statementsSEX wins, with second case
pending.
iii. Case 2: Shore (stockholders) v. Parklane about same studentsdoes not fit
claim preclusion because not same parties.
iv. Issue: Can P Shore get issue preclusion?
v. Hold: defensive is usually fine (policy of efficiency, fairness, finality, etc)
but offensive preclusion doesnt fit these ideas look at incentives by both
parties. Here, P Shore could not have joined in SEC first case and D had
opportunity to defend.
1. Did the P have an opportunity to enjoin in the first case? - if no, it
seems more sinister.
2. Did the D have the full opportunity and incentive to litigate
vigorously?
3. Essential to Judgment
a. For over-determined verdicts (verdicts in alternative) or cryptic decisions from juries
in special verdicts where not clear what they relied upon.
i. Take them all as essential to judgment
ii. Take none as essential to judgment
4. Final Judgment
5. On the Merits
6. In a court of competent jurisdiction.

57