Civil Procedure Outline

By: Lucy Dunn Schwallie

Professor Clyde Spillenger, Fall 2003

I.

Litigation Themes
a. Remedies/ Relief
i. R/R- Common Law
1. Relief will be monetary
2. Compensatory damages (How much you have suffered)
3. Punitive damages- punish the defendant
4. Liquidated damages are used in contract dispute.
ii. R/R- Equity
1. Usually non-monetary
2. Injunctive
3. Specific relief
4. Equitable
iii. Much more flexible equity types of judgments
iv. Now all courts in the US have merged the two types
b. Attorneys Fees
i. American Rule
1. Everyone pays there own attorney fees
2. Has an effect on the way that cases are brought- incentive
ii. English Rule
1. Loser pays attorneys fees of the winning party
2. Disincentive to bring suits (Macro)
iii. Different types of Lawyer- Client payment situations
1. Hourly rate
a. incentive goes to take as much time
2. Contingent
a. incentive is to put in the least amount of time to get the
recovery.
3. Flat fee
c. RULE 68
Components:
If a defendant makes an offer of settlement to a plaintiff more than ten
days before the trial, and the plaintiff refuses it, then if a verdict is returned for
less than the offer, the plaintiff must pay all costs incurred after the settlement
offer was made.
Why have this rule?
- Speaks to the positive outcomes of settling early without trial (saves
money for tax payers)
d. Fed. Subject Matter Jurisdiction

i. 28 U.S.C. 1331: Federal Question: The district courts shall have

original jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States
ii. 28 U.S.C. 1332: Diversity Jurisdiction:
1. Amount of controversy must be at least $75k
2. And between
a. Citizens of different states
b. Citziens of a state and citizens or subjects of a foreign state
iii. Art. III, 2: Judicial power shall extend to all cases, in law and equity, arising
under this Constitution
iv. Lawyer wanted to get into federal court. Why?
1. Dockets are slower in state courts
2. If you knew what judge will be assigned to the case, one might be
more favorable
3. You might get a better jury
4. Federal is a little more important
5. Fast pace- might have an advantage if you are familiar with and the
opposing counsel isnt
6. Rules of evidence are different in Idaho and Federal court- the
lawyer wanted to have the rules let him ask hypothetical situations that
he couldnt do in Pennsylvania
v. When can you get into federal court?
1. When your claim arises under federal law (federal question
jurisdiction)
2. OR when there is a diversity of citizenship between parties when there
is more than 75,000 in controversy (Sec. 2.01-2.3 of constitution) and
(1332 of federal rules
3. What happens if they retain less than 75,000?
a. You cant recover cost, but the verdict will still be in tact
4. If you have a diversity case, then generally it is an issue that could be
under state law. Why diversity jurisdiction?
a. A neutral ground for trials
vi. Rule of Complete Diversity (required under 1332)
1. No party on one side may be a citizen of the same state as any party on
the other side
vii. Citizenship of a corporation:
1. Any corporation is a citizen in its state of incorporation and its
principal place of business
viii. 28 U.S.C. 1367: Supplemental Jurisdiction: District courts shall have
supplemental jurisdiction over all other claims that are so related to claims in
the action w/in such original jurisdiction that they form part of the same case or
controversy .
1. The district court may decline to exercise supplemental jurisdiction if
a. Claim involves a complex issue of state law
b. Claim predominates over the claim which the district ct had
original juris
c. District court dismissed all claims over which it had original
jurisdiction

II.

Phases of a Lawsuit

Pleading Pre-Trial Discovery Pre-Trial (summary judgment) Trial Appeal

a. Pleading
i. What is a pleading?
1. Pleadings are the legal submissions setting forth the parties claims to
relief and defenses.
ii. Why do we need pleadings?
jurisdiction
to let defendant know what the dispute is
relevant questions of law sorted out
can get rid of issues that are agreed upon
the story of what the dispute is has to be told
iii. IMPORTANT: Pleadings consist of allegations. They do not consist as
evidence or proof. They function as a structure for what lines of proof that the
plaintiff will present.
b. The Complaint
i. Common-Law Pleading
1. To wit, lots of mumbo jumbo, very old fashioned and verbose.
2. We study common law pleadings b/c
a. even though it is abolished, it still influences the way judges
and lawyers think about pleadings and the law system;
b. idea behind common law pleading is useful if people agree
about the nature of their dispute, they may find resolution
faster and cheaper;
3. Other things to remember about CL pleading:
a. Theoretically pleadings can go on forever, unless a general or
special demurrer and traverse close the pleading by raising
issues for the court or jury to decide
b. Pleading in the alternative is not allowed each party must
plead consistently
c. D may not raise more than one issue (cant plead in both a
traverse and confession and avoidance)
ii. Code pleading
1. Merger of law and equityabolishes separate law and equity courts, so
that a single court has the authority to hear claims for legal and
equitable relief
2. Abolition of forms of actions plaintiffs complaint need only contain
a statement of facts that form the basis for the grant of a remedy.
3. Fewer pleading -- the number of plaintiff and defendant pleadings is
limited compared to the common law system
4. wanted lots of detail
iii. What we learn from Gillespie (Code Pleading)
1. Must state the necessary facts from which you can assume the
conclusions. You cannot just stat the conclusion
2. Basically, aside from fraud and civil rights cases: Does the other side
no what you are talking about? You cant be too specific or too general
3. Cant be conclusionary

iv. FRCP Pleading

1. Most states use this now
2. a good pleading should be precise, but doesnt have to be legalese
3. Its all about the Short and Plain Statement

Plain English
So What I did do it, but
there is no law against it

Different Types of Defenses

Common Law
(also used with code)
Demurrer

FRCP

Motion to dismiss for failure

to state a claim upon which
relief can be granted FRCP
12 (b)(6)
I didnt do it
Traverse
Factual Denial
Yes, but
Confession and Avoidance
Affirmative Defense
Technical Objections
Dilatory Plea
Motion to Dismiss for lack of
jurisdiction, motion for more
definite statement, ect.
There is no need to consider separately the terminology of Code Pleading. Many of the terms
used under common law survived under the Code
c. Elements of a Cause of Action (Part of the Complaint)
i. The elements are what is held in the cause of action. How can you find the
elements? Practitioners guides, etc.
ii. FRCP 7
Pleadings Allowed
1. 7(a): 6 types of pleadings
a. Complaint factual allegations
b. Answer
c. Reply to counterclaim
d. Answer to cross-claim
e. 3rd party complaint
f. 3rd party answer;
2. 7(a): No other pleading shall be allowed except that the court may
order a reply to an answer or 3rd party answer
3. 7(b): Complaint: shall state w/ particularity the grounds of the suit and
set forth the relief of order sought
iii. FRCP 8a
Claims for relief
1. Short and plain statement of the grounds which the courts jurisdiction
depends
2. Short and plain statement of the claim showing the pleader is entitled
to relief
3. Demand for judgment
iv. What makes a complaint legally insufficient?
1. Missing element
2. Facts are bad
3. Self-conscious effort to reform the law- how far can you go with this
and still be legal under Rule 11? Rule 11 places limitations on how
free-wheeling one may be when filing a lawsuit. Rule 11 does give

some room for making a good faith argument for changing an existing
law
v. HYPO Complaint: Allegation 1: defendant breached duty to me; Allegation 2:
that breach caused me harm; Would this be dismissed?
1. Probably b/c these are legal conclusions, not asserting facts to infer
conclusions
2. Have to say I was in the left lane and he was in the right lane, going 65
mph, when he swerved into my lane causing an accident where I broke
my arm
3. Infer from that that breach duty and caused harm
vi. FRCP 10
Haddle v. Garrison
Issue: Whether at-will Employment is considered Property in order to meet the
second element of the 1983 claim, thus warranting damages under 42 U.S.C.
1985(2).
Holding: The Supreme Court makes a precedential argument:
The plaintiff is an at-will employee, and this property is protected under the
constitution (due process is required only if there is tenure involved) , therefore there
was property damaged. (Trial court had dismissed the case because of the at-will
employee status. )
Comments:
The defendant moved for 12-b-6 because they didnt think that they
stated a claim due to the property issue at hand
there are other areas of the law that protect things such as loss of job,
such as torts, that have been holding before
there is a bigger conception of property

vii. Specificity Problems

1. Rule 11(b)(2) Bad facts and changing the law could be considered
frivolous and the court could slap a Rule 11 sanction on the lawyer.
But a lawyer can make a nonfrivolous argument for the extension,
modification, or reversal of existing law or the establishment of new
law [Rule 11(b)(2)]. Illustration: Borer v. American Airlines, Inc.
(1977), requesting that loss of consortium be extended to parent-child
relationships (the Cal. S.Ct. refused to recognize this claim). Atty
does NOT need to earmark this.
2. If, however, there is precedent against this, then you may definitely
have a 12-b-6, and you are open for Rule 11 sanctions as well.
Borer v. American Airlines
Issue: Is there a cause of action for loss of parental consortium?
Holding: No. Attorney tried to link it to spousal consortium and make a good faith
claim that they were similar, but appeals court agrees with trial court that there are good
reasons for the spousal consortium recovery and not for parental consortium.

viii. HYPO Age Discrimination

1. Statute material elements: Termination, Requisite age, Firing was on
account of age
2. You include: I was fired, I was 57. Does this pass a 12-b-6?
3. No. But, if you included, I was replaced with a 27 year old then you
are making a reasonable jury question, and you will probably not be
denied a 12-b-6. Why?
4. Well, they give the plaintiff the benefit of the doubt. The court does
have the duty to decide that the facts give a reasonable inference that
there is a legal problem. There are many gray lines, most would say
that these three allegations would work as a legally sufficient claim.
ix. HYPO Car Crash
1. : Complaint says that N was driving on Barrington at 55 mph (far
above speed limit) and crashed into S causing S serious injury; N says,
I wasnt even in CA when this happened; will this be dismissed under
12(b)(6)?
a. NOb/c if everything S alleged was true then there would be
a valid COA
b. N is claiming a traverse (it never happened), and this is not
grounds for 12-b-6 dismissal, as it creates a jury question
d. Consistency in Pleading
i. Rule 8(e) and McCormick v. Kopmann (1959)
1. A can file two contradictory COA as alternatives in the quest to
find the truth.
2. Rule 8(e) allows to allege inconsistent legal theories as well as
inconsistent versions of an incident so long as the allegations are
made in good faith and are based on genuine doubt as to which
version is true. Thus, in McCormick v. Kopmann, the court allowed
to plead s negligence in Count I and her decedent husbands
contributory negligence in Count IV. The rationale behind Rule 8(e)
is that rather than having separate trials on each alternative count,
controversies should be settled and complete justice accomplished
in a single action. At trial, has to testify one way or perjure
herself! See also Rule 18(a): Joinder of Claims: A party assessing
a claim for relief, . . ., may join. . . as many claims. . . as the party
has against an opposing party.
3. Only applies to pleadings.
ii. FRCP 8e (Can plead inconsistent facts)
A party may set forth two or more statements of a claim or defense
alternately or hypothetically, either in one count or defense or in
separate counts or defenses.

When two or more statements are made in the alternative and one of
them if made independently would be sufficient, the pleading is not

made insufficient by the insufficiency of one or more of the

alternative statements.

A party may also state as many separate claims or defenses as the

party has regardless of consistency and whether based on legal,
equitable, or maritime grounds.

iii. FRCP 18a (Joinder of Claims)

A party asserting a claim to relief as an original claim, counterclaim,
cross-claim, or third-party claim, may join, either as independent or
as alternate claims, as many claims, legal, equitable, or maritime, as
the party has against an opposing party.

McCormick v. Kopmann
Issue: Can you plead alternatively and inconsistently? (Plaintiff brought wrongful death
claim as well as a dram shop claim against separate defendants that had inconsistent
facts.)
Holding: Yes, Given inconsistency, it is still OK to go ahead with both b/c:
P does not know the true facts (still cant just do anything) it is reasonable to say
diametrically opposite things if you dont know
Even if he had lived, he still would not have to know the factshe is not obligated to
know whether his alcohol level amount to intoxication
Rule 8acan plead alternatively or inconsistently, but still need to be in compliance with
Rule 11 (allegations must be grounded in fact)
Rule 11 b3 retrospective determination of what was reasonable under the circumstances
back when the complaint was drafted ( to find evidentiary support)
iv. Why should you sue both causes of action at one?
1. You are hedging your bets, you have more of a chance of winning
2. Less expensive, less time
3. They wanted to keep their options open and figure out facts in
discovery
4. Subtle message that the jury may get that their job is to decide which
of the two defendants is liable, not whether they are liable
5. Each defendant was recruited to fight against each other
e. Honesty in Pleading
i. FRCP 11: Basically are the client and lawyer acting in good faith?
a. 11(b): When presenting info to the court after an inquiry
reasonable under the circumstances (ex. a lawyer facing a tight
deadline might do something reasonable in those circumstances
that he wouldnt normally) the lawyer is certifying that
b. 11(b)(1): It is not being presented for any improper purpose
i. Subjective, state-of-mind element

c. 11(b)(2): Warranted by existing law or by a nonfrivolous arg for

the extension, modification, or reversal of existing law or the
establishment of new law
i. Legal underpinnings have to be somewhat sound
ii. ex. in Borer was asking for modification of existing law
but it was nonfrivolous
iii. Measured by objective reasonableness would a reasonable
lawyer have regarded this arg as nonfrivolous?
d. 11(b)(3): Allegations have evidentiary support OR are likely to
have evidentiary support after further investigation or discovery
i. NEED to earmark those allegations that you dont have
evidentiary support for at the time of filing the complaint,
but you think after reasonable discovery you will
e. 11(b)(4): Are reasonably based on a lack of info
i. Basically what iii and iv is saying is that it cant be blatant
lies
ii. Measured by objective reasonableness would a reasonable
lawyer have regarded this arg well grounded?
f. Can be raised by court sua sponte, 11(c)(1)(b), or by the , 11(c)
(1)(a)
g. 11(c)(2)(a): no monetary sanctions shall be awarded against a
represented party for a violation of 11(b)(2)
ii. Safe Harbor Period: Mandatory 21-day cooling off period after service of the
motion on the offending party prior to filing the motion w/ the court, to give
the party an opportunity to w/draw the offending paper
1. If the issue is raised by a judge sua sponte, there is NO cooling off
period (Ex. Ridder)
2. Any Rule 11 motion that is filed after the offending paper has been
disposed of will be dismissed so, you need to file Rule 11 before you
ask for summary judgment (b/c that would dispose of the case) (Ex.
Ridder)
iii. Rule 11 Addressed to a category of sins:
1. Improper purpose 11-b-1
2. Legal frivolousness 11-b-2
3. Factually well-grounded 11-b-3/4
Golden Eagle v. Burroughs
Issue: Rule 11 sanctions were imposed originally..
1. Because they acted like they were using existing law, but it was actually an
extension of the existing law, and they did not clarify
2. Because they did not cite adverse authority
Is this okay?
Holding: The court of appeals said
1. They are clear that in the issue of citing adverse authority, it is not
sanctionable under rule 11, although it is unprofessional
2. You dont have to distinguish between using existing law and making a good
faith argument
iv. 1983 Amendment
1. Rule 11 was chilling the creativity of lawyers (i.e. lots of sanctions
with civil rights issues)

2. What was changed?

a. sanctions are now discretionary(as oppose to mandatory)
b. there is a cooling off period/safe harbor period
3. Reasons for amendments
a. fears that availability of Rule 11 takes away from merits of the
case to satellite issues and threats of rule 11 as litigation
weapon
b. Therefore, amended to include a cooling off 21 days to fix
error;
Business Guides v. Chromatic
Issue: Were rule 11 sanctions appropriate when:
1. filed for a TRO (which grants relief immediately) w/o need
2. no further research went into the claims
3. they obstinately pressed forward
Holding: Court held that the lawyers failed to reasonably inquire into the allegations
even after it was shown that some allegations were wrong claimed it was coincidence
w/o looking into it acted unreasonably in failing to investigate after error had been
found; the initial filing was not unreasonable.
Lawyers were sanctioned for these acts:
There was no reasonable inquiry lack of due diligence(didnt investigate after initial
conversation with judges clerk alerted them of the 3 mistakes). At hearings claimed
mistakes were coincidences
Allegation was factually not well grounded in fact
Lawyers off the hook for filing the complaint b/c under the circumstances they had to
do it asap
Clients were responsible for TRO sanctions
v. Can the party, as oppose to the lawyer be subjected to Rule11
1. YES, as in Business Guides client -- see Rule 11 pre1993 (ctr rejects
argument that only signing must violate rule, but the only signing that
are violations of the rule are signings by attorneys representing
someone OR signing by persons pro bono, therefore the text does not
warrant
Ridder v. City of Springfield
Issue: Can rule 11 sanctions be imposed when the plaintiff was given plenty of chances
to amend his complaint and ultimately it was proved that his complaints were
ungrounded?
Holding: No sanctions! Why cant they sanction?
- they didnt give the 21 day safe haven notice
- they sanction after the summary judgment had occurred, so there was basically nothing to
withdraw
- they could have filed sanctions and the summary judgments at the same time, and
therefore
- if a judge raises it, then there is no 21 day safe harbors, and could do it after summary
judgment

f.

Sufficiency in pleading

Mitchell v. Archibald & Kendall

Issue: Was across the street from the truck area legally considered premises? If not, it
there any way that the claim could survive a 12-b-6?
Holding: Was not considered premises. This is a legal issue, not a factual issue, so it had
to be dismissed under 12-b-6.
Comments: To avoid 12b6, P may just say I was on the premises, but this might be
legally frivolous under Rule 11 (existing law says across the street does not equal the
premises; to imply that the law accepts idea that across the street and on the premises is a
friv. legal theory), but might pass under the good faith argument because premises has
legal contention. Dissent points out another tort that the COA could have been saved
under.
g. Specificity in pleading
i. Fraud
1. Olsen v. Pratt & Whitney
a. The claim needed to be stated carefully, particularly.
b. The fireman needed to be specific to be entitled to damages
2. FRCP 9B
In all averments of fraud or mistake, the circumstances
constituting fraud or mistake shall be stated with
particularity. Malice, intent, knowledge, and other
conditions of mind of a person may be averred generally.
3. Flow chart for fraud cases:
GREAT DETAIL OF ALL FACTS STRONG INFERENCE RECKLESSNESS
In re Silicon Graphics Securities Litigation
Issue: Was a complaint adequate to survive a 12-b-6 if it creates an inference of
recklessness?
Holding: No. Needs a strong inference. Here, they found that s factual allegations are
insufficient to create a strong inference of deliberate recklessness. The court states that in
order to show a strong inference of deliberate recklessness, plaintiffs must state facts that
come closer to demonstrating intent, as opposed to mere motive and opportunity. Simply
put, the court interpreted the PSLRA to mean that a STRONG inference of deliberate
recklessness is required when the normal standard for fraud cases is a REASONABLE
inference. By this interpretation, the court made it significantly more difficult for s to
survive a motion to dismiss in private securities fraud litigation. A
Comments: What do you have to do to create a specific inference?
o
Specific facts
o
Great detail
o
All facts are included
4. Why have a PSLRA?
a. securities fraud cases were going up because people were
suing because they thought that there mustbe something fishy
going on
b. mistakes is not fraud, people make mistakes

c. people thought that these lawsuits were menacing, businesses

were forced to settle even when there wasnt evidence of fraud
5. Comments about particularity:
a. Pleading particularity Strong Inference Substantive
Standard (such as deliberate recklessness)
b. The substantive standard does not change overall, but plaintiff
will have a harder time getting the case to actually get to the
place where you can try and decide this
c. Procedure and substance are intimately linked, because
procedure can always effect outcome
ii. Civil rights
1. What do you need to bring a 1983 claim?
a. D must have deprived P from some federal, const. or statutory
right
b. color of state law the state must have done it
2. Should there be a heightened standard for civil rights claims against
municipalities?
Leatherman v. T. County Narcotics
Issue: In 1983 cases against municipalities, should a plaintiffs be required to plead with
particularity?
Holding: The Supreme Court ruled in this case that there was no basis in Rule 9(b) for
federal courts to apply a heightened pleading standard in 1983 cases. Although
Leatherman involved a municipal (no immunity defense raised, and no vicarious
liability), this could be applicable as well to individuals w/ qualified immunity.
3. Why would the fact that qualified immunity exists facilitate an
argument for a heightened pleading standard?
o The purpose of the qualified immunity defense is to keep
individuals from costly litigation battles and long discovery
periods, so it logically leads to the heightened pleading
standard
o The defendants will just respond with a motion that contains
the affirmative defense (Yes, but) seeking that the complaint
itself is inadequate
Schultea v. Wood
Issue: Does a plaintiff need to fully anticipate an immunity defense by pleading with
particularity?
Holding: A pleading need not fully anticipate the official immunity defense and can be
pleaded with generality, but once raised, a reply pleading (7a) with requisite particularity
and specificity may be required.
Comments: A court takes it upon themselves to require the 7a reply. The court ignores
the fact that 9b does not address qualified immunity here because the FRCP cannot
overrule substantive law. This idea of a reply kind of salvages both the defense and the
plaintiffs right of not pleading with particularity from the beginning.

4. Allocation of the Pleading Burden

a. Burden of Pleading: Who ought to lose if the jury thinks the
evidence is weighted 50/50?
b. Who has the burden of pleading in a qualified immunity
good-faith defense?
i. Defendant
c. How does the court decide?
i. Which party has better access to the info that relates to
the issue
ii. The language of the statute,
iii. The defendant is often in a better position to know the
mental states needed to have a cause of action
d. Burden of Production: If has this burden, at trial must
produce enough evidence on a particular point to get to a jury.
If fails, then DV.
e. Burden of Persuasion: Assuming the parties have produced
enough evidence, the party w/the burden of persuasion can be
defined as the party who bears the risk of losing when the
evidence is in equal
f. FRCP 8c
i. Affirmative defenses go in the answer
ii. Any defense that vitiates the opposing parties claim
Gomez v. Toledo
Issue: In a 1983 claim against a public official whose position might entitle him

to qualified immunity, does P has the burden of pleading that D acted in bad faith
in order to state a claim for relief?
Holding: Nope. Defendant has to argue this. Q.I. is an affirmative defense that has to be
argued by the defendant.
Comment: Reasons: How would the plaintiff know about the good faith of the defendant?
If an element of a 1983 claim was that the officer was acting in bad faith, then the
burden would be on the plaintiff. This is not the case, however.
g. DOG BITE HYPOS
h. Response to the complaint
i. pre-answer motion and 12-b defenses
1. A Motion is a request for an order, it doesnt set forth any factual
allegations. There are seven types of motions one can make, according
to FRCP 12.
2. Rules for response:
a. twenty days to respond, but this happens almost never
b. service of process on a defendant can be waived by the
defendant, and they want to do this because they then have
sixty days to respond to the complaint
c. What happens if a defendant files a 12-b-6 and it is denied?
i. They then have ten days to respond
d. FRCP 6a
Any time that there is a time period specified under the
rules, you start with the next day after what has

occurred. So, start day after the serving, and count until
the end of the numbers.
i. If the last day ends on a weekend, you wait until a
business day
ii. If it is more than ten days, then you count weekends
and holidays
iii. If it is ten days or less then you do not count weekends
or holidays
e. Statute of Limitations: time when you file with court, you have
three years until you serve the defendant
f. ONLY ONE Pre-Answer MOTION RAISING 12-b
DEFENSES!
3. The Pre-answer motion is itemized in 12-b all the different types of
defenses that can be made by motion, they could also be made in an
answer, but they can be in a motion.
a. Rules 12-g and 12-h provide a series of principles governing
when and under what circumstances you can actually raise
these circumstances
b. 12-b-2 through 5 are waived if you dont raise them in the first
motion
c. the defense of 12-b-7, 12-b-1, 12-b-6 does not get waived
4. FRCP Rule 12(b) Defenses Prior to filing an answer, may, if he
chooses, file a motion and raise any or all of the following defenses:
(1)
(2)
(3)
(4)
(5)
(6)

Lack of subject matter jurisdiction;

Lack of personal jurisdiction;
Improper Venue;
Insufficiency of Process
Insufficiency of Service of Process;
Failure to state a claim upon which relief can be
granted; or
(7) Failure to join a party needed for a just adjudication
(includes necessary & indispensable parties).
5. In a 12(b)(6) motion, the Court should assume the truth of the

Complaints factual allegations and simply ask whether the

Complaint sufficiently states a valid cause under Rule 8(a).
6. You would rather raise a 12-b defense in a motion instead of in an
answer, because it might get dismissed and then you wouldnt have to
answer at all.
ii. Default
1. FRCP 55: Default:
You can default if dont comport w/ Rule 12 (file an answer w/in
20 days or waive service of process which means you have 60
days to file an answer)
a. Entry of default will be made by clerk if there is no responsive
paper filed by the ; but still has to move for default
judgment based on default and get a ruling on damages if those
are involved

b. Can have your default removed if you file an answer before

there is default judgment
i.

The Answer
i. General things: The answer must contain a specific denial or

admission of each averment of the complaint, or a general denial

w/specific admissions to certain averments.
- Where is w/out knowledge or information sufficient to form
a belief, a statement to that effect constitutes a denial.
- A failure to deny constitutes an admission.
- The answer may also contain any of the 12(b) motions, and it
may state any affirmative defenses, counterclaims, crossclaims, or 3rd party claims.
ii. Timing
1. If no Rule 12 motion is made, a who was formally served w/a
summons and complaint must present an answer w/in 20 days
after service, but there are many exceptions. A to whom the
complaint was mailed and who waives formal service of process
must answer w/in 60 days after the request for waiver was mailed
to her.
2. If a Rule 12 motion is made and the court does not fix another
time, the responsive pleading is to be served w/in 10 days of the
courts denial or postponement of the motion.
3. The answer is due w/in 10 days of service of a more definite
statement if the court grants a 12(e) motion.

Zielinksi v. Philadelphia Piers, Inc.

Issue: What happens when a defendant denies an allegation because one part of it was
false, even though they knew for a fact that the whole thing isnt false?
Holding: Defendant was estopped from denying agency at trial, now, because then there
would be inaccurate statement on the record. Denials must meet the substance of the
averments denied. You have to specify if you are only denying part of something!
Comments: This was an easier case to decide because the insurance company was trying
to confuse the plaintiff by mixing up who should be the real defendant. Because the
insurance company was paying either way, it was easy for the court to order that the
defendant was i
iii. Denials
1. General Denial- In common law, the defendant could have a general
denial of each and every one of the allegations. Because of 11-b-4,
there doesnt happen a lot. In California, you see them more because
there isnt as important of a pleading process.
a. complaints that are verified are sworn in California, which
then makes it available for impeachment purposes
b. the defendant is not allowed to issue a general denial when
there is a verified complaint

2. You can deny if:

a. You think it isnt true.
b. You arent sure, but you have no reason to believe it is true.
c. Some one told you it was true, but you dont know this for a
fact
3. FRCP 8b:
"a party shall state in short and plain terms his defenses to each
claim asserted and shall admit or deny the averments upon which
the adverse party relies... Denies shall fairly meet the
substance of the averments denied. When a pleader intends in
good faith to deny only a part or a qualification of an averment,
he shall specify so much of it as is true and material and shall
deny only the remainder."
iv. Affirmative defenses
1. Affirmative defenses are where the defendant confesses the truth of the
complaints allegations but avers that s theory of liability, even
though sustained by the evidence, does to apply to it b/c of additional
facts that place in a position to avoid any legal responsibility for his
action. An affirmative defense must be presented in the answer;
otherwise, it is waived and cannot be introduced at trial.
Laymen v. Southwestern Bell Co.
Issue: Do affirmative defenses need to be introduced in the answer? Is a general denial
acceptable? (Telephone company had an easement that they didnt introduce until trial.)
Holding: A defendant is obligated to plead affirmative defenses in its answer. If a

defendant only pleads a general denial, it may not offer evidence establishing
affirmative defenses in the rest of the trial.
Comments:
2. Remember affirmative defenses are assumed to have been denied by
the plaintiff, and that you can move to strike as insufficient with 12(f)
v. Statute of Limitations
1. FRCP Rule 8(c) The statute of limitation defense is officially

included in Rule 8(c). It is built in. However, it raises

complicated issues.
2. What is the value of a statute of limitations?
a. Preserve the record, societies interest in making sure the
litigation process has some procedure
b. Protects defendants from stale claims, at some point you
should be free from the threat of litigation
3. Statute of limitations- uniquely different because you could put it
in a pre answer motion, which you cant for most other
affirmative defenses
United States v. Kubrick
Issue: When does a cause of action start to accrue?
Holding: A cause of action begins accruing when the plaintiff knows the injury and

the cause of injury.

Comments: Options: 1) injury, 2) knowledge of injury, 3) knows of cause of injury, 4)
knows has a legal claim.
vi. Counterclaims
1. Generally Claims that defendant may have against a plaintiff

may be pleaded in the answer as counterclaims. Rule 13 allows

such counterclaims. There are two types: (1) compulsory and
(2) permissive.
2. FRCP 13
a. 13(a): Compulsory Counterclaims: A pleading shall
state as a counterclaim any claim which at the time of
serving the pleading the pleader has against the opposing
party, if it arises out of the same transaction or occurrence
(STO) that is the subject matter of the opposing party's
claim
b. 2 tests for determining STO
i. Logical relationship -- one most courts use
ii. Degree of overlap in evidence
c. Doesn't require an independent basis for federal
jurisdiction (b/c it meets the STO test of supplemental
jurisdiction)
d. If you do NOT assert a compulsory counterclaim you
waive it forever
e. 13(b) Permissive Counterclaims: Permissive
Counterclaims: A pleading may state as a counterclaim
any claim against an opposing party not arising out of the
same transaction or occurrence
i. Requires an independent basis for federal subject
matter jurisdiction (it will NOT satisfy
supplemental jurisdiction or else it would be a
compulsory counterclaim)
ii. If you do not assert a permissive counterclaim you
do NOT waive it forever
3. What are the consequences of a compulsory counterclaim?
a. It cant be heard in federal court if you want to bring it later
4. What makes a counterclaim compulsory?
a. One that arises out of the same transaction or occurrence
5. Exceptions to compulsory counterclaims
a. 13(a)(1): counterclaim is already subject to pending action
b. 13(a)(2): opposing party brought suit upon the claim by
attachment or other process by which the court did not acquire
jurisdiction
6. Difference between permissive and compulsory: Issue is purely
jurisdictional. A permissive counterclaim must have an independent
jurisdictional basis, while a compulsory counterclaim falls within the
ancillary jurisdiction of the federal courts even though it would
ordinarily be a matter for the state court consideration.

7. 28 USC 1367 is the statutory authority for allowing federal courts to

hear claims that otherwise dont have jurisdiction over that claim
8. What is the STO test?
a. Arises out of the same transaction or occurrence
b. Different tests can be:
i. Issues of fact and law
ii. Same evidence and fact
iii. Logical relation
1. When a counterclaim arises from the same
aggregate of operative facts in that the same
operative facts serve as the basis of both
claims
Plant v. Blazer
Issue: Can a claim that arises under state law and has no SMJ be allowed to be heard to a
federal court when brought as a counterclaim to a claim that does have SMJ?
Holding: Yes. Debt claims are compulsory counterclaims to Truth-in-Lending act claims.
They use the same aggregate set of facts, so it is exactly what c.c. are set up for.
9. The reply Joinder and Counterclaims are analogous (see pg. 175 in
binder)
a. Joinder: under Rule 18a you may join as many claims as you
have against and if you don't bring a claim w/ the rest you
lose it forever
b. Counterclaim: under Rule 13b you can raise any available
counterclaims and if you don't bring a compulsory
counterclaim you lose it
j.

Reply
i. FRCP Rule 7

Usually, pleadings end with the answer. Rule 7(a), however,

requires plaintiff to file a responsive pleading, which the rule calls
a reply to a CC. A reply is required where defendants answer
contains a counterclaim denominated as such. The reply must be
served w/in 20 days after service of the answer or, if the reply is
ordered by the court, w/in 20 days of the court order. RememberPlaintiff need not reply to an AD; he is deemed to deny or avoid
the allegation of the defense.
k. Amendments
i. Prejudice
1. FRCP 15a Amendments
- May amend as a matter of course at any time before a responsive
pleading is served or, if no response required, w/in 20 days after
the original pleading to be amended was served, provided case
hasnt been placed on courts calendar
- Otherwise, may amend only by leave of court or by written
consent of the adverse party; and leave shall be freely given
when justice so requires

Beeck v. Aquaslide Co
Issue: Should an amendment be allowed that pretty much destroys the plaintiffs claim
because it proves that the defendant is not the proper defendant in this case?
Holding: Yes. Court holds that the possible prejudice to the is an insufficient

basis on which to deny the proposed amendment (TC's ruling was not going to be
disturbed except for an abuse of discretion)
Comments: This is a When Justice so Requires amendment. After this happened, th
plaintiff sued for Negligently answering a complaint, which, if they could have proved
that they could have found the proper plaintiff and that plaintiff could have paid had they
not been mislead by Aquaslide before the SOL ran out, they could have gotten damages
from Aquaslide
.
2. Rule 15(a) is liberally construed and leave to amend should be

granted when justice so requires absent

(1) undue prejudice to the party opposing the
amendment, OR
(2) undue delay on the part of the party seeking the
amendment, OR
(3) bad faith.
ii. Relation back
1. FRCP 15(c)
Arises if you wish to amend you pleading after the SoL has
passed, so you can relate your amendment back to the original
pleading in certain situations; has to be filed w/in 120 days; the
potential party has to be on notice that they could be sued
a. 15(c)(2): claim or defense asserted in the amended pleading
arose of STO set forth in the original pleading
b. 15(c)(3):the amendment changes the party or the naming of the
party and the party to be brought in by amendment
i. (a): has received such notice of the institution of the
action that the party will not be prejudiced in
maintaining a defense on the merits
AND
ii. (b): know or should have known that, but for the
mistake concerning the identity of the proper party, the
action would have been brought against the party
2. What are the criteria that are put in place when someone wants to
amend and change the parties?
a. Same transaction or occurance
b. Sufficient notice that there is a lawsuit going on before 120
days after the filing of the original complaint
c. But for a mistake they would have been named the defendant
d. They have to have notice that there is a lawsuit has been filed
3. Worthington v. Wilson
a. Fictitious defendant is not actually a mistake in the seventh
circuit they differentiate between a mistake and a lack of
knowledge
4. Moore v. Baker

o First claim: bad advice

o Second claim: medical malpractice
o Amendment is denied.
5. Bonerb v. Richard J. Caron Foundation
o First claim: negligence in maintenance
o Second claim: Counseling malpractice
o Amendment is permitted.
6. Why are they different?
a. Different set of facts in Moore, in Bonerb the second claim
actually came out of the same facts.
b. A lot of it is the idea of notice
7. Although this isnt mentioned in the rule, practically speaking, judges
will be more willing to accept an amendment before discovery,
summary judgment, etc. Courts also dont want to rock the boat, so
they usually affirm unless abuse of judgment.

III.

Pre-trial discovery
a. General view
1. The vast majority of rulings on discovery are subject to an abuse of
discretion standard. The higher courts will be very reluctant to overturn
a lower courts ruling on discovery.
2. Discovery is all about getting information
3. Most federal DCs have there own rules, which arent supposed to
conflict w/FRCP, and they are adapted to their dockets
4. A major point of discovery is to prevent sides from being surprised at
trial
5. Issues: Resources, adversarial system, etc.
b. Scope and relevance
1. FRCP 26
* (a)(1): general idea is that certain kinds of info are so routinely
necessary that the drafter/amenders of the rule want to make that
kind of info immediately disclosed w/o having to wait for
requests
a. Names, addresses, numbers of anybody likely to have
discoverable info UNLESS solely for impeachment
b. All documents, data compilations, and tangible things that are
in the possession, custody, or control of the party and that the
disclosing party may use to support its claims or defenses
UNLESS solely for impeachment
c. Computation of damages
d. Insurance
* (b)(1): Parties may obtain discovery regarding any matter, not
privileged, that is relevant to the claim or defense of any party;
relevant info need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the discovery of
admissible evidence
* (b)(2): limits on what information can be requested
* (c): protective orders against discovery to protect a party from
annoyance, embarrassment, oppression, or under burden or
expense; usually trade secret, employee files

* (f): rules say that you should not start discovery until the
discovery conference
2. 12-b-1 gives us the governing test for relevance
3. Relevant information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of
admissible evidence.
4. Anybody making a case at trial is trying to prove things from a variety
of sources and evidence. Many times they are inevivetably dropped or
deemed inadmissible, but that doesnt mean that they arent relevant.
Blank v. Sullivan and Cromwell
Issue: Is the information sought by Ps about partnership hiring at Ds firm relevant to Ps
sexual discrimination claim for associate hiring?
Holding: Court ultimately rules that there is a relevance because 1) there is an inference
as to the relevance and 2) the fact, that even if evidence is not strictly relevant, the lack of
its admissibility at court does not prevent its discovery under 26b (it could lead to
discovery of evidence that is admissible at trial under any std names of people to
depose, resumes of people hired/not hired, HR complaints about sexual harassment)
Comments: They are trying to establish a chain of inference the farther down the
chain makes it harder to prove the discovery relevant.
5. The relevancy of a discovery issue is its inference link and /or its lead
to discovery of other information that is admissible at trial
Stefan v. Cheney
Issue: Do deposition questions directed towards whether plaintiff engaged in homosexual
conduct have to be answered if the COA is a discharge because of homosexual status?
Holding: No. Judicial review of an administrative action is confined to the grounds
upon which the record discloses that the action was based
Comments: While conduct may be relevant, the court says that it must be relevant

to claims and defenses disputed (not remedies necessarily)

c. Privilege
1. 26-b-1 makes relevant, unprivileged information discoverable
2. There are matters that are recognized as privileged in the law

of evidence:
a. attorney-client communications
b. physician-patient communications
c. marital communications
d. priest-penitent
e. corporate communication might also be protected (top
management, as well as lower echelon)
f. news papers privilege to keep sources confidential
g. privilege against self-incrimination the 5th Amendment
provides constitutional privilege against selfincrimination but it is only applicable in criminal
proceedings

3. Privilege and Privacy There is no privacy privilege. Do not

assume that privilege attaches to anything private. Note that

w/ patient-doctor, or penitent-priest privilege, etc., the privilege
protects communication only. Therefore, a doctor may have to
reveal the names of patients, for example, unless a state statute
provides otherwise.
4. A party may still shield confidential matters from discovery by
obtaining a protective order pursuant to Rule 26(c)
d. Discovery devices:
i. Required disclosure
1. Why disclose something like a witness?

o Sanctions could impose that you would not be able

to put that witness on later when you try to use them
o You dont have to disclose if you arent intending to
use them in your case, if you are only using it for
impeachment
2. FRCP Rule 26a1
a. Names of Witnesses
b. Description of Documents
c. Calculations of Damages
d. Copies of Insurance Agreements
e. Self-disclosure is a new concept (prior to that duty to
self-disclose was triggered only by highly particularized
pleadings, hence an incentive for particularized
pleadings)
e. Interrogatories
i. Written questions
ii. Always define key words in the beginning (like what is an employee) so
iii.
iv.

v.

vi.

vii.
viii.

there can be no disputes over what it means later

Relatively inexpensive (cheaper than depositions)
Good way at getting leads, but can't get dramatic concessions and no
ability to follow up on interesting answers
1. Frame them concretely (not subjectively or generally)
Limited value as admissible at trial (hearsay)
1. Can be used for impeachment charged if someone testifies to
something than what they said in their interrogatory
Presumptive maximum of 25 interrogatories (including all discrete
subparts)
1. Completely inadequate in big cases
2. Most of the time if it's important the judge will allow you to get
more
Only for parties
Types of interrogatories:
1. Source (identification)

a. ex. interrogatory that says name all the employees

responsible for handling claims of defective merchandise

over the last 5 years
2. Substantive
a. ex. interrogatory that asks party to identify each witness
whose testimony you plan to introduce at trial
b. Speaking to the case the other side is going to develop
3. Contention (very important)
a. ex. do you contend that plaintiff was inside or outside the
crosswalk at the time?
b. Trying to get directly to the theory of the other sides case
ix. Rule 33(d) allocates the costs of responding to certain broadly framed
interrogatories a party served with interrogatories can point the other
party to the records or documents that answer its questions and let them
do the fishing, that is the interrogated party has the option of producing
its business records;
f.

Depositions
i. Can depose anyone, hostile witness though, not friendly ones (not just

parties)--have to compel someone to show up thru subpoena

1. THIS IS THE ONLY DISCOVERY ADVICE YOU CAN USE
ON NON-PARTIES
ii. Live questioning w/ follow up
iii. Only entitled to one 7 hour day (not realistic in most cases, so you have
to ask the court for more)
iv. Presumptive maximum of 10 depositions; further depos require court
order
v. Much better than interrogatories b/c you can pin down the other side
1. More expensive than interrogatories b/c you have attorneys
present and a court reporter
vi. You can only make an objection on the record
vii. Even though you cant get a judicial ruling at the deposition that the
objection is sustained, you can get the objection to mature later.
viii. Can be used for impeachment charged if someone testifies to something
than what they said in their deposition
ix. Rule 30(b)(6)Deposition of corporation: identify the issues you want to
treat in deposition and let the corporation choose the member best
qualified to answer them
x. Rule 30(b)(5): Subpoena duces tecum (bring it w/ you):
1. Subpoena that asks the deposed to bring certain kinds of
documents or materials w/ them to consult when answering
questions
2. Only for party witnesses; non-party witness is Rule 45a1c
xi. Rule 30(d)(1): **Can NOT tell someone not to answer
1. If someone doesn't answer then you make a motion to compel
under Rule 37(a)
g. Requests for Production of Documents FRCP 34

i. Other side can inspect and copy pretty much anything that might help

ii.
iii.

iv.
v.

their case -- provide all documents, memoranda, and reports relating to

the incident
This is where high costs are incurred in discovery process
If the documents are in a room of 150,000 documents you can ask thru
Rule 34 for all documents relating to x and make the other side go
through the material to get it to you OR via an interrogatory framed in
the appropriate, narrowing way needle in the haystack problem
imposes the duty on the other side to go through the stuff
34(b): If you have an objection to a requested document (assuming that
it is w/in the request) you have to note that objection
Difference between Rule 34 and Rule 33(d) Under Rule 33(d), if you
ask a party a question through an interrogatory which can only be
answered through business records, the party has the option to let you
see all his business records. Under Rule 34, the party must pull all the
relevant documents out for you and send them over. This is more
advantageous.

h. Medical Examinations
Schlagenhauf v. Greyhound
Issue: What is required to determine whether a partys medical state is in controversy?
Holding: Court says that since plaintiff did not assert his mental or physical

condition either in support of or in defense of a claim, it cannot be said that the

pleadings alone are sufficient to meet Rule 35(a)s in controversy and good cause
requirements. Also, examinations were ordered in very broad, general areas, thus
there was no compliance w/Rule 35s requirement that the trial judge delineate the
conditions and scope of the examinations.
Comments: There is a problem with in controversy and good cause because of
a couple of issues:
constitution and privacy issues
rules enabling act- these rules shall not abridge or enlarge any substantive right
i. FRCP 35a Court may order a party or a person in
the custody of or under the legal control of a party to
submit to physical or mental examination if:
a. the physical or mental condition of the person to
be examined is in controversy (we need more
than just mere conclusory allegations); [tightens
the ordinary relevance standard in 26(b)(1)
by requiring some specificity in the pleadings
concerning the partys particular medical
condition.]
b. good cause for the examination is shown;
[MP must show that it cannot get the info any
other way.]
c. notice is give to the person to be examined and
to all parties; and

d. the court order specifies the time, place,

manner, conditions, and scope of the
examination and the person(s) who shall
conduct the examination.
i.

Requests for admission

i. FRCP 36: Request for Admission
1. Used in interrogatories -- ask is this true or a fact? -- have to

ii.
iii.
iv.
v.
j.

admit or deny, if it's admitted then you have an established fact

for the trial
2. Only used to admit/deny facts (not assessments of law)
Usually articulated as: Do you or do you not admit that.?
Creates a useful way to cut costs and litigation, can simplify things
If a party refuses to answer or answers wrongly, then you may have to
pay the costs, but there are lots of loopholes
You have to relitigate an admission if it is from a different litigation, you
cant use it

Work product
i. What is work product?
ii. Three specific parts (see 26-b-3):
1. Documents/tangible things
a. After Hickman, oral recollections fall in here
2. In anticipation of litigation
3. By a party/representative (not limited to lawyers)
iii. Just because it is work product doesnt mean that it is not discoverable,

if there is need or hardship, they can get non-opinion work product

discovered
iv. Names/ Addresses of witnesses- Has to be answered!
v. Descriptive statements- Does not have to be answered!
vi. Names of witnesses youve interviewed Does not have to be answered!
vii. Name of the people who saw a defect- Has to be answered!
Hickman v. Taylor
Issue: Are a lawyers interviews with victims of a crash work product?
Holding: Witness interviews can be given to the other attorney if there was
substantial hardship in getting the interview, but generally they arent.
Comments:
How to work thru a Work Product Problem
a) Do you have a work product problem: Are there documents/tangible things
collected in anticipation of litigation by a party/representative?
i) If you do, then you go to the second step: Does it have attorneys mental
thought processes and impressions?
(1) If it is not of the thought process type (ordinary work product) then it can
be made discoverable if
(a) Must show substantial need for the material
(b) Cannot obtain material w/o undue hardship

(2) If it is work product of the thought process type (opinion work product) it
is NOT discoverable under any situation.
b) Ordinary work product (only a qualified protection)
i) Written statements
ii) Takes something objective looking and sounding to be ordinary work product
c) Opinion work product (absolute protection)
i) Oral recollections
ii) Memoranda of interviews (saturated w/ theories)

k. Discovery abuse and sanctions

i. FRCP relief
1. 37.a.- MOTION TO COMPEL

If the person responding to the request is objecting,

it is not an immediate signal for sanctions. The requesting
party should then move to compel. If the judge then orders
the discovery, you then have an order to compel. If at this
stage the party still does not allow discovery, then you have
a situation for sanctions. This is different from a situation in
which someone just doesnt answer.
26.g.- SANCTIONS
The rule 11 of discovery. A request or discovery response
that is frivolous or imposed for improper purposes may
then impose sanctions.Working understanding of
Sancctions needed
37.b. KINDS OF SANCTIONS
Tells you the kinds of sanctions that are suitable in different
situations.
37.c. REQUIRED DISCLOSURE; REQUESTS FOR
ADMISSIONS
If someone does not give the 26.a. required disclosures, or
answer the requests for admission tells us what to do.
37.d. FAILURE TO RESPOND
Serious offense, and you now have the case for immediate
sanctions.

IV.

ii. Discovery and ethics

1. movie kodak. Put more in later
Pre-trial alternatives to adjudications
a. Summary Judgment!
i. BURDEN OF PRODUCTION
1. conceptually central to summary judgment
2. declares which party needs to produce sufficient evidence
3. if the other side doesnt show this, then you would move for a

directed verdict (it is actually known as judgement as a matter of

law)
4. it is what you have to do to get to a jury

ii. BURDEN OF PERSUASION

1. which party is supposed to lose when the jury finds a verdict,

when the evidence makes everything seem 50-50

2. when the plaintiff has the burden of persuasion, which is usually

the case, that means that if the plaintiff and defendant are tied the
plaintiff will
3. only matters when the jury doesnt know

V.

b. See Teddys Summary Judgment Outline

TRIAL
a. Jury Issues
i. RULE 48: Number of jurors-participation in verdict in fed court

1. At least 6 jurors; no more than 12

2. Parties can stipulate to a jury than less than 6
a. Has to be unanimous
b. Parties can stipulate to something less than unanimous
3. No alternate jurors
ii. Parties have a right to waive a jury trial
iii. Parties have a constitutional right to a jury trial if it is established
historically under the common law or if it is provided for under the
statute (7th Amendment!)
b. Taking the Case away from the Jury- Directed Verdict JNOV - Judgment
notwithstanding the verdict
i. RULE 50: Calls DV- Judgment as a matter of Law and JNOV a renewed
motion for Judgment as a matter of law. Gives guidelines for procedure. You
cannot have JNOV unless you moved for DV. Both of these procedural tools
challenge the legal sufficiency- i.e. even if the evidence is believed it doesnt
establish the legal theory of the party. Rests on the concept of burden of
production.
Reid v. San Pedro Railroad
Issue: When a case seems 50/50, is DV appropriate because of the burden of persuasion?
Holding: Tie goes to the defendant b/c plainitff has the burden to prove his claims by a

preponderance of evidence. The has the burden of production and proof to provide
evidence that is more likely than not that is liable in order to overcome a motion for
DV.
Comments: The jury cant get the case if there is no reasonable basis to choose one or the other.
In this case instead of finding fact, the jury was going to find inference. That isnt really fair.
ii. The sufficiency of the evidentiary foundation of a jurys verdict is determined
by the burden of proof.
iii. When should a party move for Judgment as a matter of law (DV)?
1. Made when opposing party has been fully heard on the relevant issues.
2. Anytime after Plaintiffs case: Defendant may move for JNOV
3. Anytime after Defendants case: either plaintiff or defendant can move
for JNOV
iv. What do you need to survive a Judgment as a Matter of Law (DV) or JNOV?
1. Directed Verdict should be granted if and only if a jury could not

find for the NMP.

2.

Scintilla rule: a scintilla of evidence is supposed to be enough to

deny a directed verdict.

3. TODAY, we need more substantial evidence; i.e., more like 3

scintillas. Should the MPs evidence be scrutinized at all? If there is a
mountain of evidence on the MPs side, then the judge can take this
evidence into account.
v. Federal Standard: The court should consider all of the evidencenot just
that evidence which supports the non-movers casebut in the light and
with all reasonable inferences most favorable to the party opposed to the
motion to the motion. If the facts and inferences point so strongly and
overwhelmingly in favor of one party that the Court believes that reasonable
men could not arrive at a contrary verdict, grant of the motions is proper. On
the other hand, if there is substantial evidence opposed to the motions,
evidence of such quality and weight that reasonable and fair-minded men in
the exercise of impartial judgment might reach different conclusions, the
motions should be denied, and the case submitted to the jury.
Chamberlin v. Pennsylvania Railroads
Issue: Could a reasonable jury find for the plaintiff when numerous eyewitnesses who were

said there was no collision (including one who was on the train right behind the one that
the deceased was on)?
Holding: SC directed verdict for the RR because the plaintiffs evidence wasnt enough to have a
jury find for them. The fact that a witness heard a loud crash doesnt determine there was a
collision, it allows for equal inferences to what may have happened.
Comments: It seems like in this situation they were making judgments based on witness
credibility. This isnt really allowed, but it is difficult for judges not to do this. This verdict shows
how both sides evidence is taken into account when directing a verdict.
vi. Remember- JNOV and DV cannot use witness credibility! That is purely a jury
question and cannot be inferred from testimony.
Railroad v. Stout
Issue: Is negligence enough of a disputed fact that it can make a case go to a jury?
Holding: Yes. Negligence is an evaluative fact, and therefore it has to go to a jury. The RPP
standard is a jury question. While there are no material facts to be disputed, it still has to go to a
jury in these cases.
Comments: The jury determines the inferences that can be drawn from the undisputed facts.
vii. Juries embody local community standards. It might be that negligence

doesnt need the universality, clarity, etc. means that are usually needed
from court decisions.
viii. Difference between DV and JNOV from Summary Judgment? The Rule
50 (a) motion is raised during trial and decided on the basis of the
testimony and documentary evidence offered at trial, while the summary
judgment (rule 56) is made before trial and determined solely on the
basis of documentary evidence such as depositions and affidavits.

ix. Judge will grant DV or JNOV over SJ for a couple of reasons: if the

judge senses that the case will turn on questions of fact that are not fully
elucidated by the record, or purely the desire to give each party the
opportunity to present their evidence at trial before a decision is made to
withdraw the case from the jury.
x. Why JNOV if a DV is denied?
1. Usually to get around having an appeals court reverse and have
to grant a new trial. In most cases the jury will decided the way
that the judge wants them to anyway
2. When a judge grants JNOV and the losing party appeals, the
appeals court just reinstates the old verdict instead of requiring a
whole new trial as they would with the DV.
c. New Trials
i. FRCP 59:
1. Time: Within 10 days of judgment
2. Conditional rulings on New Trial motions: (FRCP 50(c))
3. No requirement of previous motions
4. Why Requested: All the reasons that courts have traditionally
used to grant new trials
a. Flawed procedure. Evidence should not have been
admitted, improper jury instructions
b. Flawed verdicts: miscarriage of justice, jury finds
against the weight of the evidence
ii. Easy cases (Lind) jurys decision should usually be left alone. Hard
cases (complicated) Judges may scrutinize evidence more closely.
iii. Happens when there is some flaw in the trial, ex. judge erroneously
admitted evidence into the trial and affected the trial or the verdict itself
is flawed b/c there was something flawed in the form in which the
verdict was given.
Lind v. Schenley Ind.
Issue: What is a trial court judges flexibility in granting a new trial?
Holding: Where nothing indicates that the jury was not properly presented with correct
evidence, the judge may not nullify the jury verdict by granting a new trial so long as
there evidence could have lead a reasonable jury to decide their verdict. An appellate
court has to use a De Novo standard. (Abuse of Discretion.) The original verdict was put
back into place for the plaintiff.
Comments: The power is very narrow- in this case it was purely on a witness credibility
issues. That isnt enough.
iv. Assessing witness credibility is okay when determining a motion for a new
trial.
v. Difference between JNOV and New Trial. Jury is not taken out of the picture
with new trial - you just get another jury whereas the judge takes decision for
himself in a JNOV motion. A trial judge may grant JNOV with new trial in the

alternative so that if the JNOV decision is overturned on appeal, the case will
be reheard.
vi. In the federal court, what is the proper standard for a new trial?
1. Generality: No miscarriage of justice
2. Hornbook: If and only if there is a definite and firm conviction that a
mistake has been made
3. Somewhere between the thirteenth juror idea and the Reasonable
jury idea
vii. A special verdict is one in which the jury answers different questions: did the
do A? Did the do B? Then allow the judge to decide whether the is or is
not liable. Yet there seems to be a systemic reluctance to substitute special

verdicts for general verdicts.

viii. When can a motion for a new trial be appealed?
Y- jnov Y-nt
Y-jnov N-nt
Can be appealed
Can be appealed
N- jnov Y-nt
N- jnov N-nt
Can not be appealed
Can be appealed
This is because in none of the other boxes is a final decision. You cant appeal something
that isnt a final decision.

VI.

APPEALS
a. Who can appeal, what can be appealed
i. Only parties that have suffered an adverse decision
ii. Appelate courts review results, not theories
iii. If relief under one theory entitles the appealing parties to alternate relief

(ex. punitive damages) then an appeal lies.

iv. One cant bring new theories in an appeal, they can only use theories
that they brought in the original trial/case. Same goes for objections- you
must have made the objection up before in order to rely on it in an
appeal.
b. Final Judgment Rule
i. 28 US 1291: Subject to exceptions, in the federal courts one cannot
appeal a non-final (interlocutory) order or ruling.
Liberty Mutual Insurance Co. v. Wetzel
Issue: Whether finding liability was considered a final judgment when remedy was not
granted.
Holding: One of several claims is disposed of by partial summary judgment - rule 54 b
(MULTIPLE parties only) allows this to stand as a final judgment as to that claim and
therefore, it can be appealed. This doesn't help D here, because 54b is not applicable to a
claim in a case involving one D.
Comments: There was only one claim, but the district court was acting as if there was
multiple claims and therefore it should be final judgment and be able to be appealed. Had
there been a ruling on a remedy, there would have been final judgment.
ii. Examples/Negations of Final Judgment

Examples OF Final Judgment

NO Final Judgment

Jury Verdict
Directed Verdict/ JNOV
Grant of a 12-b-6
Summary Judgment
Absolute Immunity

Discovery orders
Denial of a 12-b-6
Denial of JNOV, grant of a New Trial

c. Exceptions to Final Judgment Rule

i. Collateral Order Doctrine

In order to appeal a non-final (interlocutory) judgment it must:

1. Conclusively determine the disputed question
2. Resolve an important issue completely separate from the merits
of the action (usually, anything that is jurisdictional)
3. Be effectively unreviewable on appeal from a final judgment
4. Example of judgments under CO doctrine: qualified immunity,
personal jurisdiction issues, etc.
Lauro Lines v. Chasser
Issue: Could a ruling that a forum selection clause did not have to be honored be
appealed?
Holding: D fails to satisfy condition 3 of Collateral Order Doctrine because Ds right to
not to be haled for trials before tribunals outside the agreed forum is not essentially
destroyed if its vindication must be postponed until trial is completed. Their right isnt not
to be sued, it is not to have a binding judgment against them.
Comments: The right not to have to go to court in the US that the company is fighting for
isnt a very important right, says Scalia. The right is not sufficiently important to
overcome the policies militating against interlocutory appeals. If it was an issue of
immunity, that would be more important right to us.
ii. Discretionary Certification
1. 28 US 1292b- district court must certify that the order
a. involves a controlling question of law as to which there

is a substantial ground for difference of opinion and that

b. an immediate appeal from the order may materially
advance the ultimate termination of the litigation.
2. The appellate court must agree (if it doesnt, then there is no
certification)
iii. Extraordinary writs Mandamus
1. Review available in situations that wouldnt warrant review
under collateral order
2. A writ of mandamus orders a public official to perform an act
required by law
iv. 54b FRCP 54(b)

1. allows a party that has multiple claims (or where there are

multiple parties) to appeal the final judgment on one claim, even

if the other claims lack final judgment and are not appealable.
2. Where claims have been joined in a manner consistent with the
federal joinder rules, Rule 54(b) allows the court to enter a final
judgment as to one or more fewer than all of the claims. This
allows an appeal to be taken pursuant to section 1291.
d. Scope of Review
i. De Novo
1. The appellate court can answer the question with no deference to
what the district court has decided; must be a ruling of law [such
as a 12(b)(6), which assumes that all facts are true; thus there is
only a matter of whether there is a claim of action] no
deference is given to trial court as to the statement of what the
governing law is.
2. Do trial as if new again
3. EX: Summary Judgment, JNOV, 12-b-6
ii. Abuse of discretion
1. Discretion will be given to the trial court application of the
pieces of evidence to the law. In a motion for a new trial, the
standard of review is abuse of discretion.
2. Motion 42 and evidentiary ruling falls within this Dont reverse
unless their interpretation of the law was really really bad.
3. EX: New Trial Motion, Evidentiary Motion, Choice of sanction
under Rule 11, Motion for Severance (rule 42), Motion to Exclude
Evidence

iii. Clearly erroneous

1. The appellate ct should reverse the trial judges ruling when they

find that the trial judge was clearly erroneous. Example: a trial
judge who makes a finding of facts. Dont reverse unless it was
really obvious that the lower court was wrong
2. EX: Fact finding, mixed-fact finding
Pullman Standard v. Swint
Issue: Is Discriminatory intent a fact that can be reviewed, and does it have to be held
to a clearly erroneous standard?
Holding: If its a fact, it can only be reviewed under the clearly erroneous standard,
theres no exception for ultimate or central facts (Overturned 5th cir). Appellate Ctrs are
not suppose to make findings of fact they can only reverse on facts where it is clearly
erroneous (FRCP 52)
Comments: The appropriate thing to do would be to have remanded the case for trial to a
lower court if they found that the facts found were clearly erroneous.
e. Standards of Review

Type
Factual Findings
- judge
- jury
Mixed Question of Law
- negligence (Stout)
- intent to discriminate (Title VII
Pullman v. Swint)
- actual malice (defamation)
Legal Ruling that goes directly to a
claim or a defense
Discretionary Rulings by a trial judge
motion for a new trial
motion for severance (FRCP 42)
evidentiary rulings
choice of sanction under Rule 11
JNOV
12b(6)
SJ
f.

STANDARD OF REVIEW
Clearly erroneous
Abuse of discretion
Clearly erroneous
Clearly erroneous
De novo
De novo
Abuse of discretion

De novo

Harmless Error
i. An appellate court using the appropriate course of review can find an
error at the D. Ct. level and still find that the holding is good & was
unaffected by the error.
ii. Even if they screwed up, the mess up didn't change the outcome

VII. Preclusion- Res Judicata

a. Claim Preclusion (Res Judicata)
i. General Rule - The general rule of res judicata is that a valid, final

judgment, rendered on the merit, constitutes an absolute bar to a

subsequent action between the same parties, or those in privity with
them, upon the same claim or demand. It operates to bind the parties
both as to issues actually litigated and determined in the first suit, and as
to those grounds or issues that might have been, but were not, actually
raised and decided in that action.
1. Res Judicata is an affirmative defense. It is usually brought as a
motion for summary judgment.
2. Goals are judicial economy and certainty of judgments.
ii. Requirements
1. There must be final judgment -Sometimes, judgment is
considered final even if an appeal is pending. Other courts,
however, only give RJ effect to judgments if time for appeal has
passed or the case has been fully resolved by the appellate court.
2. Judgment must be on the merits.

a. General - Does not include improper venue, lack of pj,

and party joinder dismissals. Includes 12b6 dismissals

b/c of the theory that a whose complaint is dismissed
for failure to state a claim is allowed liberal opportunities
to amend. However, some state courts allow a second
action b/c comparatively little litigation goes into thee
preliminary dismissals, and hence a basic value
underlying res judicata, preservation of scarce judicial
resources, is not compromised by allowing a 2nd action
Summary Judgment, Directed Verdict, Dismissal for
failure to comply w/discovery order.
b. If doesnt pursue case, it will be dismissed for failure to
prosecute. This is deemed judgment on the merits b/c
had a full opportunity to litigate the merits in the first
action. who defaults same reasoning as above.
Judgment under Rule 50 (Judgment as a Matter of Law)
c. Dismissals of Action: Rule 41 Involuntary dismissal
[Rule 41(b)] is a dismissal with prejudice and operates as
a judgment on the merits. It is therefore precluded. On
the other hand, voluntary dismissal [Rule 41(a)] is
dismissal without prejudice. It is NOT a judgment on the
merits (unless that same claim was dismissed once
before).
3. Claims must be the same in the first and second suits.
a. Under the transaction or occurrence test (STO),
preclusion turns on the right to join the claim in the
original action, not on whether the claim actually was
asserted.
b. Claims for future nonpayment are not rj barred b/c has
no right to sue for these claims until they accrue.
c. must recover for all her damages in the original action,
including those suffered prior to trial and all future
damages that are reasonably likely to ensue. (i.e.
although asbestos cases are the exception).
d. The rights of different s to relief arising out of a single
incident are not considered one claim simply b/c they
arise out of one transaction or occurrence. Every
potential who suffers injury from a transaction or
occurrence has a distinct claim for rj purposes. Thus, in
an accident w/two s, each can sue in a separate suit.
e. All theories for recovery arising out of a single
transaction or occurrence constitute a single claim for
preclusion purposes.
4. Privity - Parties in the 2nd action must be the same as those in the
first (or have been represented by a party to the prior action).

a. Courts note that it is possible for someone not formally

named as a party to be so closely connected to a suit that

it is appropriate to treat her as if she were named.
Privity therefore merely express the conclusion that the
person whose name was not on the caption of the first
case should nevertheless be bound. This includes:
b. Beneficiaries, Holders of future interest, Unborn or
unascertained persons, Members of a class (note that the
class has to certify at the outset that the representative(s)
of the class is (are) adequate), Successors in interest,
Transferees of property, And persons vicariously liable
for others.
b. Collateral Estoppel (Issue Preclusion)
Issue Preclusion: When:
1.
2.
3.
4.

An issue of fact or law is

Actually litigated and determined by
A valid and final judgment, and
The determination is essential to the judgment, the determination
is conclusive in a subsequent action b/tw the parties, whether on
the same or a different claim
A. Unlike claim preclusion, under which theories are barred even if not raised, issue
preclusion only estops an issue actually decided in the prior action
ii. What is an Issue?
A. Have to consider the different burdens of proof
B. Level of scrutiny affects issue preclusion
a. If A loses in Case I when the level is preponderance, hes not barred form using
as his defense the very issue he lost in case I when criminality tried in Case II.
Just b/c he lost at 51% evidence doesnt mean he will lose at 99%.
b. Must build into issue its substantive contours and the procedural conditions
under which it was determined
iii. Actually Litigated and Determined
An Issue is Actually Litigated When:
A. Its presented to a judge or jury and
B. Is determined when its considered by the judge or jury
a. An issue can be raised in a prior action but not be actually litigated
IL Central Gulf Railroad v. Parks
A. Case I: B sues for injuries; J sues for loss of Bs services and consortium
a. B recovers, but J doesnt
B. Case II: J sues for his injuries
C. FIRST LOOK FOR CP: see what TEST applies in the state
a. Ind. doesnt use STO test and this isnt a different coa (same evidence) no CP
D. THEN TO IP: look at what issues were ACTUALLY litigated in the 1 st suit
a. But here the 1st case was a jury case
b. Black box jury verdict doesnt indicate whether he was found to be contributorily
negligent in the consortium claim
c. The harm claimed for consortium is different from harmed claimed in the
negligence case (maybe jury didnt find J suffered a loss of consortium)

iv. Essential to the Judgment

The decision on the issue must have been necessary to the courts judgment.
When an alternative ground for a decision existed in past litigations and you dont know which
ground the decision was on, then neither issue is preclusive on subsequent litigation (Parks)
v. Mutuality
A. Many courts have abandoned the mutuality requirement for issue preclusion (it remains
for claim preclusion)
a. Traditionally, IP and CP were limited to the situation in which the parties to the
subsequent action were the same parties or in privity w/ the parties to the prior
action
b. Rationale: the victim of IP had a full and fair opportunity to litigate the matter in
the 1st suit
B. Non-Mutual Collateral Estoppel
a. Allows a new party to invoke collateral estoppel against a party who had litigated
and lost on an issue in a prior action. The use of estoppel is non-mutual b/c the
party asserting the estoppel on the issue was not a party to the action in which
the issue was first litigated
C. Defensive Use of Non-Mutual Collateral Estoppel D seeks to use it
a. Where a P loses on issue A and a new D pleads collateral estoppel to bar P from
relitigating the same issue he lost to D1
b. Increases efficiency: gives P a strong incentive to join all potential Ds in the 1 st
action if possible
D. Offensive Use of Non-Mutual Collateral Estoppel P seeks to use it
a. Where a D loses on issue A and a new P pleads CE to bar P from relitigating
issue A
i. P2 waits until a case is found against a D before bring his case against
the same D and then seeks to bring finding in Case I in to preclude
hearing on the issue
ii. In non-mutual preclusion situations, court must consider not only the
basic requirements for estoppel, but also add the additional factors set
out by Parklane to preclude relitigation of findings from prior action in a
new suit involving a new party
b. Can actually increase litigation
c. Despite the differences b/tw offensive and defensive uses, courts dont see this
as a reason to limit it only to defensive
Parklane Hosiery
A. Case I: SEC claimed PH had issued a false and misleading proxy statement
a. Judgment against PH
B. Case II: Ps, in a class action suit against PH based on the same proxy statement,
invoked CE against PH on the question of whether the statement was false and
misleading
C. Court applied doctrine of offensive use of non-mutual CE and held PH was collaterally
estopped from relitigating the issue
D. Court noted these risks posed by the offensive use of estoppel
a. Ps might hold back from joining suits and wait and see result of 1 st suit
b. Party might not have litigated the issue aggressively in the first action if the
stakes were small or the forum was inconvenient

c.

One or more inconsistent judgments on the issue may suggest that it would be
unfair to give conclusive effect to any one of them
d. Offensive n/m estoppel cant be used against the govt
E. SC leaves it up to the courts to examine all these issues and decide whether offensive
n/m should be applied
Exceptions to Non-Mutuality
A. Procedural Opportunities
B. Incentive to litigate
C. Inconsistent Judgments
D. Govt
vi. Preclusion and Public Law Litigation: Martin v. Wilks
Martin v. Wilks
A. Case I: Black firefighters v. Birmingham: sue city for race-conscious promotion system
under Title VII. City issues a consent decree
B. Case II: White firefighters v. Birmingham: white FF sue city, alleging reversed
discrimination
a. City wants issue preclusion (defensive CE), but FFs say they werent parties
C. SC agrees w/ white firefighters
a. There is no duty to intervene
b. The parties who were in the first suit have the duty to bring in as parties all those
who they would like to bar from litigating separately in a separate case
D. Ps in case 2 must have the opportunity to collaterally attack the legality of the terms of
the consent decree
E. Civil Rights Act of 1991: overrules Wilks by applying a compulsory intervention
requirement for employment cases resulting in a consent decree
AUTHORITY TO ADJUDICATE IN A FEDERAL SYSTEM
A. Personal Jurisdiction
General: Whether in personam, in rem, or quasi in rem, the exercise of valid state court
jurisdiction today must comport w/ the Due Process Clause (14 th Am), which means it must
comport w/ fair play and substantial justice
Traditional Test (Pennoyer)
2 Prongs
1. D must be present in the Forum state (Burnham temporary presence is okay)
2. Notice must be personally served in the forum states
Modern Basis
3 Ways
1. Domicile
2. Consent
3. Minimum Contacts
4. Presence in State
Types of Personal Jurisdiction
1. In Personam judicial power over a natural person, corporation, or unincorporated
association; rights can be fully adjudicated, making him fully liable for what is being
requested by P
2. In Rem
a. True in Rem
i. Action against a piece of property a way of adjudicating rights against
all the world
ii. P seizes the Ds property in order to satisfy an interest in the property
(title, possession) that the P claims in the property

iii. Ex. probate

b. Quasi In Rem
i. P attaches Ds property in order to satisfy a prior personal claim that the
P has against the D
1. Type 1: Dispute about the property itself (property is the basis for
litigation)
a. Not a proceeding against all of the world
b. Have to adequately notify all people who may have a
right
c. Ex: quiet title proceeding (who the property belongs to)
2. Type 2: Attachment
a. Not about the property, property is just seized as a way
of getting litigation started
b. The property is merely a method to encourage a D to
come and litigate
i. Origins: Pennoyer v. Neff (1077,1080)
Case I: Mitchell (lawyer) v. Neff
Case II: Neff v. Pennoyer
In Personam:
a) All Ds, whether residents or nonresidents, must be served w/
process personally
b) D must be present in the state when the service is made
a. Exception: abandoned spouse
In Rem
a) If the person isnt present, you can attach property (if they own
any w/in the state)
b) The seizure notifies D and also serves to assert power (now you
have to have notice when you attach)
ii. Minimum Contacts and Its Discontents
General The minimum contacts test
1. Min Contacts applies to individuals and corps
2. D may have sufficient contact w/ a state even if he didnt act w/in
the state
3. Based on time of the act in question
Different Considerations to Determine Minimum Contacts
a) Purposeful availment (BK, not in WWV)
b) Quid pro quo (getting benefits of the forum state) (I-Shoe)
c) Stream of commerce must be foreseeable (WWV)
d) Purposefully directed (Asahi)
e) Must have some connections b/tw litigation, D, and forum state (mere presence of
property isnt enough Shaffer)
Minimum Contacts
1) Protect D from burdens of litigating in a distant or inconvenient forum
2) Maintains federalism by preventing states from reaching out too far
International Shoe focuses on fair play and justice
a) The forum state may exercise PJ over a D if D has had such minimum contacts w/ the
state that it would be fair to require him to return or come to the state to defend the
lawsuit in that state

b) Whether PJ is permissible depends on the quality and nature of the contacts w/ the state.
In some cases, even a single contact will do, but not contacts that are casual or isolated
a. International Shoe: Wash sued I. Shoe (out-of-state corp incorporated in Del,
located in MO) over unpaid contributions
b. I. Shoe made a special appearance to challenge in personam jurisdiction
c. SC ruled that in personam jurisdiction was appropriate b/c Due Process Clause
gives courts authority to exercise in personam jurisdiction only if minimum
contacts, ties, or relations, exist b/tw D and the forum state
d. I. Shoe had minimum contacts: Ds doing business in Wash constituted a valid
basis for in personam jurisdiction that didnt offend traditional notions of fair play
and substantial justice
c) This was a case of specific jurisdiction, but b/c Ds in-state activities were found to be
substantial this could also be viewed as a case of general jurisdiction (D can be sued on
any claim when there are strong connections
Shaffer v. Heitner quasi in rem absorbing in rem jurisdiction
a) This case established that I. Shoes constitutional test (fair play and substantial justice)
apply to assertions of quasi in rem jurisdiction
b) H filed a derivative suit and seized stock (Del)
c) P attached property (Pennoyer told us we could do this)
d) Presence of stock in Del was totally unrelated to Ps coa and there wasnt enough
contacts among Ds, forum state, and underlying litigation to satisfy minimum contacts
and reasonableness standard
e) Property itself cant be a basis for gen jur (extends I. Shoe)
WWV [in personam] product in stream of commerce
a) Ps involved in a car accident in OK; distributor and seller contested exercise of PJ over
them in OK
b) Requirements
a. Foreseeability
i. D has to have knowledge that he would be liable in that state
ii. Common sense perception that you could be sued in that state
iii. Likelihood that a reasonable person would expect to have to answer in
that state, not the likelihood of a specific event happening in that state
iv. Brennan: says this is circular
b. Purposeful Availment
i. Necessary ingredient: the way D connects himself to the forum state
ii. If D connects himself to the state, its foreseeable hed be haled to court
there
c. Quid Pro Quo get something from the state
i. Brennans justification for saying something is purposeful availment
(Burnham)
d. Stream of Commerce
i. Applicable in commercial situations (WWV, BK, Asahi)
c) Must have purposeful availment and foreseeability for jurisdiction
d) WWV: D didnt have purposeful availments b/c didnt have contacts w/ OK and
knowledge that the car may be driven through OK isnt enough for foreseeability
e) Brennan (dissent): cant just look at fairness to D, must also look at Ps costs of litigating
in another forum and at the states interests
Asahi
a) II-A (only 4 join, not binding precedent)
a. A didnt have minimum contacts b/c in a stream of commerce case the
substantial connection necessary for contacts must come about by a action
purposefully directed toward the state
b) II-B (8/9)

a. Have to have both minimum contacts and, separately and independently, that its
reasonable and fair
b. Minimum contacts may not be reasonable it theres not justice and fair play
Burger King contract
a) A factor (K, residence, etc) + substantial and continuous relationship can establish PJ
b) Franchise dispute grew directly out of a K which had a substantial connection w/ FL
c) Brennan: quid pro quo argument (hard to be persuaded by this)
a. Feels strongly about letting state courts bring suits into their state
Young v. New Haven Advocate
a) Basic theory of Internet cases is just setting up a site where its foreseeable that people
from other states will see it isnt enough
b) Couldnt have reasonably anticipated being haled into Virginia courts (foreseeability) and
didnt have sufficient contacts
Burnham Transient Jurisdiction
a) W serves process on H who comes to Cal to visit children
b) Jurisdiction based on physical presence alone constitutes due process b/c it is one of the
continuing traditions of our legal system that defines the due process standard of
traditional notions of fair play and justice
c) Brennan (concurs): believes that after I.Shoe and Shaffer all cases must beat the
minimum contacts test, Scalia doesnt agree
d) Scalia: old process is due process; Brennan: still need to pass fairness scrutiny
e) Brennan must be saying that GJ exists b/c his claim isnt out of his contacts w/ the state
(this is why his approach is unpersuasive to Spilly)
iii. Jurisdiction to Determine Jurisdiction
Specific v. General Jurisdiction (developed for min con doctrine)
a) Specific J
a. D only has a certain amount of contacts to a state
b. Causes of action have to be related to these contacts
b) General J
a. Requires more contacts than specific (usually residence, place of business, or a
state of incorporation)
b. Cause of action doesnt have to be related to contacts
Joinder of Claims
a) PJ is over a D, not a claim
b) Once you have PJ for one claim you can bring others
To Challenge Jurisdiction
a) Default
a. Just dont show up for 1st court and then argue in the 2nd court that 1st court had
no jurisdiction (collateral attack)
b. But you waive all other defenses by defaulting, so if 2 nd court finds that 1st court
had jurisdiction, you lose the whole case w/o getting to argue on the merits
b) Special Appearance
a. Appear w/o conceding jurisdiction of the court
b. Cant be used to lure a D into a state to serve him w/ process
c. If you win the case is over
d. If you lose you can stay and litigate or leave (if you leave you have no basis for
collateral attack)
e. If you lose then you have to litigate case on the merits, but can raise 12(b)(2)
again on appeal

iv. Consent
Consent can create jurisdiction where it wouldnt normally exists
a) One example of this is showing up in court, or waiving your 12b2
b) You cant waive SMJ, but you can waive PJ
Can waive consent 2 ways
a) By litigating on the merits in a case, you consent to PJ (youve waived any objection)
a. Under the proper circumstances, you might still be able to renew on appeal your
objection to PJ that you made at the threshold of the case
b) When parties have inserted a forum selection clause in their contract
a. Can confer jurisdiction on a court that might not otherwise legitimately be able to
exercise it
b. Depending on the wording of the clause, it could also serve to oust a court of
jurisdiction that it would otherwise have
c. Functions as a kind of consent to PJ where such jurisdiction would not
otherwise be valid
Carnival Cruise Lines
a) SC made an economic argument about why forum selection clauses are okay shouldnt
subject one party to jurisdiction anywhere
b) Divested all other courts of jurisdiction
v. Notice and Service of Process
There is a constitutional minimum to be met for notice to be valid
2 Requirements must be met for Service of Process
a) Constitutional Question (Mullane)
b) Statutory/Rule Question (what does the governing rule say?)
Mullane
a) Tried to just post notice of the judicial accounting in the paper
a. Kind of like attachment: seizure + notice
b) Court said that for anybody whose whereabouts can be feasibly obtained, you have to at
least send them a letter
c) For those whose whereabouts cant be easily obtained, publishing in the newspaper is
fine (even though these are the least likely to see it)
d) Service must be reasonably calculated to reach the party in interest
e) But court doesnt really tell us what minimum is necessary
FRCP 4 (tells us ways to make proper service under Rule 4)
4(d) waiver of service of process
- You can send the complaint to the D w/ the waiver form, they can send it back and agree
to waiver of service of process and you dont have to worry about it anymore
- D gets more time when they waiver service of process (60 days instead of 20)
4(e)(2) personal service to person of suitable age
4(e)(1) any mode of service prescribed by the rules of the state (catchall)
- Mail and nail is common
4(k) Federal courts are bound by state long-arm statutes in state law cases (no federal longarm statute)
4(m) have max of 120 days to serve the D after you file w/ the court
If you are never notified, you may attack that judgment collaterally (Fundamentally, its a
jurisdictional defect)
This doesnt mean that every defect in service of process gives you the right to collaterally attack

vi. Long-Arm Statutes

PJ (must satisfy):
a) Constitutional Q
b) Long-Arm Statute
a. Statues began authorizing their courts to reach beyond their own borders
b. Some states say that the state may exercise jurisdiction on any basis not
inconsistent w/ the Constitution
c. Other states are given more limited jurisdiction
d. 100 mile bulge
Rule 4(k)
4(k)(1) Functions as a long-arm statute in its own right for fed cases
In most fed cases, you apply the long-arm statute of the state where that fed ct is sitting
4(k)(2)
Deals w/ a very rare situation
a) A D is sued in fed court; the coa is based on fed law, and D cant legitimately be
subjected to PJ anywhere in the U.S.
b) 4(k)(2) says that under these circumstances, well regard him as being sueable in any
federal district
vii. Venue
In General:
a) Not a constitutional question, venue is statutory
b) Just b/c venue is appropriate doesnt mean PJ is
c) Objections to venue will come from D (P has the original choice)
d) Usually, more than 1 federal district may be proper
To determine venue:
a) Find out whether claim brought in case is based on diversity - 1391 (a and b)
a. Based Solely on Diversity
i. Can be brought where any D resides if all Ds reside in the same state
ii. District where a substantial part of the events or omissions giving rise to
the claim occurred or a substantial part of property thats the subject of
the action is situation, or
iii. If 1 and 2 dont apply, then any district where any D is subject to PJ at
the time the action is commenced (default provision still have to ask if
PJ allows all of the Ds to be tried there)
b. Not based Solely on Diversity
i. Same
ii. Same
iii. If 1 and 2 dont apply, then any district where any D may be found
c. 1391(d) alien may be sued anywhere
viii. The Doctrine of Forum Non Conveniens
a) Doctrine that functions like transfer, get the case into a court where you think its proper
b) But this is used when you need to get to a court that isnt in the system (so you cant
use transfer)
c) This and 1404(a) come into play when there may be more than one court that has
legitimate power to hear the case, but a court that has a much better reason to hear the
case hasnt been selected
a. Piper Aircraft v. Reyno: more rational to have it decided in Scotland
ix. Transfer
Can only transfer w/in the federal judicial system

a) Cant transfer a case out of fed court system to a state system and states cant transfer
cases to other states intrasystem device
b) 1406 where venue is proper transfers to a fed ct w/ proper venue rather than
dismissing the case (new ct applies its own laws)
c) 1631 where PJ is lacking in fed ct where case was originally brought (same as 1406
except lack of PJ)
d) 1404(a) Change of Venue
a. Idea of transferring a case from a venue where PJ and venue are proper, but
there are good reasons for transferring the case somewhere else
b. Discretionary
c. New court is supposed to apply the same substantive law as the original law did
(b/c the case wasnt transferred b/c there was improper venue cant be used to
find better law)
-

c. The Subject Matter Jurisdiction of the Federal Courts

SMJ 12(b)(1) is never waived!
1) Federal Question
2) Diversity
3) Supplemental

i. Federal Question Jurisdiction (1331)

a) Cause of action must arise under federal law
ii. Diversity Jurisdiction (1332)
a) Rule of Complete Diversity
a. Every P must be diverse from every D
b) >$75,000 in question
iii. Supplemental Jurisdiction 1337
a) So long as a counterclaim arises from the STO, federal court may hear the claim
although it lacks independent basis for jurisdiction
b) State and federal claims must arise from a common nucleus of facts
a. United Mine Workers v. Gibbs
i. Allegations of secondary boycotts (fed statute) and state law conspiracy
claim arose from the same nucleus of operative fact
ii. Cant say that the federal issues were so remote that in effect only the
state claim was tried
iii. DC didnt abuse its discretion by hearing both claims
c) Just b/c the court has authority (juris) in fed ct to hear the claims, doesnt mean that the
fed ct has to, or even should, hear the claims - discretionary
d) If the fed claim is dropped the state claim should probably be dropped as well so that the
state court can hear it
a. Sometimes if the fed claim isnt dropped until very late, it may be permissible for
the fed ct to continue to adjudicate the claim (efficiency reasons)
e) Preclusion Consequences
a. If its a claim that would have qualified for supplemental jurisdiction, the Ps
failure to raise it means that its barred
b. Obviously, if you bring the claim and the federal judge refused to hear it, you can
still bring it in state court
iv. Removal 1441
a) Congress has given Ds the power to second guess the Ps through removal
b) Removal rests on the notion that there are many situations where state and fed courts
have concurrent jurisdiction

c) P gets the 1st pick, but if they choose to go to state, D had the right to remove the case
from state to fed ct
a. D just does it, no argument
b. P cant protest until theyre actually in fed ct
c. Remand appropriate only if the removal was wrong
d) One impt exception to removal
a. If the basis for fed SMJ is diversity, and the D is a citizen of the state in which the
case is brought, theres no right to remove
b. Comes from the historical viewpoint of diversity
c. No reason to permit removal when the original claim was filed in Ds own home
territory

c.