I. JURISDICTION ......................................................................................................................................

4
FEDERAL SUBJECT MATTER JURISDICTION ................................................................................. 4
1. FEDERAL QUESTION28 USC 1331 ........................................................................................ 4
2. DIVERSITY28 USC 1332 .......................................................................................................... 4
SUPPLEMENTAL JURISDICTION ....................................................................................................... 6
ANALYZING SUPPLEMENTAL JURSIDICTION ............................................................................... 7
REMOVAL .............................................................................................................................................. 7
PERSONAL JURISDICTION .................................................................................................................. 8
ORIGINS .............................................................................................................................................. 8
TYPES OF PERSONAL JURISDICTION ............................................................................................ 9
CHALLENGING JURISDICTION ....................................................................................................... 9
CONSTITUTIONAL STANDARDMINIMUM CONTACTS ............................................................ 10
CONSENT .......................................................................................................................................... 11
NOTICE AND SERVICE OF PROCESSFRCP 4 ........................................................................... 12
LONG-ARM STATUTES .................................................................................................................... 13
PERSONAL JURISDICTION ANALYSIS........................................................................................... 14
II. VENUE ................................................................................................................................................. 14
28 USC 1391 .................................................................................................................................... 14
28 USC 1392 .................................................................................................................................... 15
TRANSFER ............................................................................................................................................ 15
FORUM NON CONVENIENS .............................................................................................................. 15
DIFFERENCE B/T FORUM NON CONVENIENS AND TRANSFER............................................... 16
III. PLEADING ......................................................................................................................................... 16
COMPLAINT ......................................................................................................................................... 16
SPECIFICITY OF A COMPLAINT: FRCP 8(a)(2) ........................................................................... 16
PLAUSIBILITY IN PLEADING ......................................................................................................... 17
BURDENS IN PLEADINGFRCP 8(C) .............................................................................................. 19
FRCP 8(c)AFFIRMATIVE DEFENSES ......................................................................................... 19
CONSISTENCY IN PLEADING: FRCP 8(D) ....................................................................................... 19
DISFAVORED CLAIMS: ................................................................................................................... 20
HONESTY IN PLEADINGFRCP 11 ................................................................................................. 21
FRCP 11(a): SIGNATURE................................................................................................................. 21
FRCP 11(b): REPRESENTATIONS TO COURT ............................................................................... 21
FRCP 11(c) SANCTIONS FOR VIOLATIONS OF 11(b)................................................................ 22
FRCP 11(d)INNAPLICABILITY TO DISCOVERY ........................................................................ 22
RESPONDING TO A COMPLAINT ..................................................................................................... 23
DEFAULT .......................................................................................................................................... 23
PRE-ANSWER MOTIONS.................................................................................................................. 23
THE ANSWER .................................................................................................................................... 25
COUNTERCLAIMS .............................................................................................................................. 26
COMPULSORY COUNTERCLAIMS: FRCP 13(a): ......................................................................... 26
PERMISSIVE COUNTERCLAIMS: FRCP 13(b): ............................................................................. 26
CROSS-CLAIMS: .................................................................................................................................. 27
REPLY ................................................................................................................................................... 27
AMENDMENTS .................................................................................................................................... 27
FRCP 15(a) ........................................................................................................................................ 27
FRCP 15(c): RELATION BACK ........................................................................................................ 28
AMENDMENT ANALYSIS ................................................................................................................. 28
IV. PRE-TRIAL DISCOVERY ............................................................................................................... 29
SCOPE AND RELEVANCE .................................................................................................................. 29
PRIVILEGE ........................................................................................................................................... 30
DISCOVERY DEVICES ........................................................................................................................ 30

REQUIRED DISCLOSURES ............................................................................................................. 30

DEPOSITIONSFRCP 30 ................................................................................................................ 30
INTERROGATORIESFRCP 33 ...................................................................................................... 30
REQUEST FOR PRODUCTION OF DOCUMENTSFRCP 34 ...................................................... 31
PHYSICAL AND MENTAL EXAMINATIONSFRCP 35 ................................................................. 31
REQUESTS FOR ADMISSIONSFRCP 36 ..................................................................................... 32
WORK PRODUCT DOCTRINEFRCP 26(B)(3)................................................................................ 32
EXPERT REPORTS: FRCP 26(B)(4) ..................................................................................................... 33
CLAIMING PRIVILEGE OR PROTECTING MATERIALS: FRCP 26(B)(5) ..................................... 33
DISCOVERY ABUSE & SANCTIONSFRCP 26(G) & 37 ................................................................ 33
DISCOVERY AND PERSONAL ETHICS ............................................................................................ 34
V. PRE-TRIAL ALTERNATIVES TO ADJUDICATION .................................................................. 35
SUMMARY JUDGMENTFRCP 56................................................................................................... 35
STANDARD: ...................................................................................................................................... 35
SUMMARY JUDGMENT INQUIRY: 2 QUESTIONS ........................................................................ 35
VI. TRIAL ................................................................................................................................................. 37
PRESUMPTIONS AND BURDENS ..................................................................................................... 37
JUDGMENT AS A MATTER OF LAWFRCP 50 ............................................................................. 38
DIRECTED VERDICTFRCP 50(a) ................................................................................................ 38
J.N.O.V.FRCP 50(b) ....................................................................................................................... 39
MOTION FOR A NEW TRIALFRCP 59 ........................................................................................... 39
VII. APPEAL............................................................................................................................................. 41
FINAL JUDGMENT RULE ................................................................................................................... 41
EXCEPTIONS ........................................................................................................................................ 41
FRCP 54(b): ....................................................................................................................................... 41
COLLATERAL ORDER DOCTRINE (Practical Finality Exception) ................................................ 42
INTERLOCUTORY APPEALS- 1292(b) ............................................................................................ 42
WRIT OF MANDAMUS ..................................................................................................................... 42
STANDARDS OF REVIEW .................................................................................................................. 43
FACTUAL FINDINGS ....................................................................................................................... 43
MIXED QUESTIONS OF LAW AND FACT ...................................................................................... 43
LEGAL RULINGS ON THE MERITS OF CLAIM OR DEFENSE..................................................... 44
ANCILLARY OR DISCRETIONARY RULINGS................................................................................. 44
HARMLESS ERROR .......................................................................................................................... 44
VIII. COMPLETED ADJUDICATION ................................................................................................. 45
RES JUDICATACLAIM PRECLUSION .......................................................................................... 45
GENERAL RULES: ............................................................................................................................ 45
3 ELEMENTS ..................................................................................................................................... 45
1. VALID: .......................................................................................................................................... 46
2. FINAL JUDGMENT: .................................................................................................................... 47
3. ON THE MERITS:......................................................................................................................... 47
COLLATERAL ESTOPPELISSUE PRECLUSION ......................................................................... 48
TESTS FOR DETERMINING PRECLUSION: .................................................................................. 48
DIFFERENCE BETWEEN CLAIM AND ISSUE PRECLUSION: ..................................................... 48
PRECLUDE WHEN (CONDITIONS): ............................................................................................... 48
ACTUALLY LITIGATED AND DETERMINED: ............................................................................... 49
ESSENTIAL TO THE JUDGMENT: .................................................................................................. 49
MUTUALITY: ..................................................................................................................................... 49
OFFENSIVE USE: ............................................................................................................................. 49
DEFENSIVE USE: ............................................................................................................................. 50
PRECLUSION AND PUBLIC LAW LITIGATION: ............................................................................ 50

I. JURISDICTION
TWO TYPES OF JURISDICTION: Generally need both:
SUBJECT MATTER JURSIDICTION: the power to hear the particular type of case Plaintiff
plans to file
The subject matter jurisdiction of the federal courts is defined by who the parties to
the suit are, rather than the subject matter of the underlying dispute.

Anticipated defenses are not part of a well pleaded complaint.

PERSONAL JURISDICTION: jurisdiction over a defendants personal rights, rather than
merely over property interests.

FEDERAL SUBJECT MATTER JURISDICTION

2 WAYS TO SATISFY:
Article III more widely, federal statute interprets it more narrowly
1. FEDERAL QUESTION28 USC 1331
28 U.S.C. 1331: Grants federal jurisdiction over cases that arise under federal law.
Question: is Plaintiff enforcing a federal right?
o

This is not in Article III, only an interpretation.

Constitution would allow Plaintiff or Defendant to raise a question of federal
law

CONCURRENT:
Federal Question jurisdiction is concurrent (can also be brought in state court)
o If state law creates a cause of action dependent on analysis of some federal issue,
usually deny SMJ. (E.g. State tort claim for improperly labeled food, includes FDA
statutes)
o For federal law to be an ingredient of a case, one of the parties in the case would
have to rely on federal law to establish either a claim or a defense in the lawsuit, or at
least raise a federal issue in proving her case.
o Exclusive Federal jurisdiction for: patent,
Mottley- only the defense was rooted in federal law (5th amendment defense) but the claim itself was a
matter of state law. Holding: It is not enough for there to be some question of federal law in the case; the
plaintiffs claim must itself be founded on federal law (well-pleaded complaint rule).
2. DIVERSITY28 USC 1332
28 U.S.C. 1332
(a): Federal courts shall have jurisdiction of all civil actions where the matter in controversy
exceeds $75,000 w/o interest and costs, and is between-(1): citizens of different states

COMPLETE DIVERSITY:
All plaintiffs in a suit are from different states than all defendants at the time suit is brought
o
o
o

Citizenship is determined at time of filing suit.

Const. Art III 2: jurisdiction over controversies between citizens of different states.
It is clear that Article III now allows diversity jurisdiction as long as some opposing
parties to the action are diverse.

Hawkins v. Masters-

Holding: Man dies in tractor accident. Girlfriend and mother sue for recovery of him
in federal court but found that his domicile did not create complete diversity.
AMOUNT-IN-CONTROVERSY REQUIREMENT
Aggregating Claims:
Single Plaintiff can aggregate any claims against single Defendant to reach the
requirement, regardless of same case or controversy
Two Plaintiffs cannot aggregate claims against single Defendant if claims are
separate and distinct
Multiple Plaintiffs against multiple Defendants must have undivided interest
and single title or right.
Class actions: all members must individually satisfy the requirement
If original claim is over 75k, then the counter-claim from other side can be heard
regardless
Actual recovery is irrelevant:
Case is dismissed if claim is apparently less than $75,000 to a legal certainty
What about cases of intangible loss where the outcome is uncertain?
A plaintiffs good-faith claim for more than the amount required
controls, unless it appears to a legal certainty that the claim is really for
less
CORPORATE CITIZENSHIP
Corporation is citizen of state where incorporated and principal place of doing business (See
Personal Jurisdiction | International Shoe)
Corporation that is incorporated is outside US is alien, but could also have state citizenship if
it has a principal place of business inside the US.
Test:
Direct control nerve center. The statutes language supports the approach and theres
administrative simplicity. Language seems to support simplicity in statute.
o Where the corporation maintains its headquarters and whre its officers direct, control,
and coordinate the corporations activities
Partnerships- different, every single partner counts a separate domicile (so its difficult to
have diversity if you have a lot of partners)
Hertz v. Friend- Principal Place of Business= nerve center

MEANING OF STATE CITIZENSHIP"DOMICILE"

o

The courts have equated state citizenship for diversity purposes with the common law
concept of domicile
Domicile: defined as the state where a party has taken up residence with the
intent to reside indefinitely (or you don't have a specific intention of going
somewhere else)
Problem with domicile: determining what it means to intend to stay
indefinitely in a state.
Persons can only have one domicile for purposes of diversity jurisdiction
o It means that a persons presence in the state is open-ended.
Redner v. Sanders-

Holding: a person is a citizen of New York but lives in France. Lacks Domicile
for Diversity.
SUPPLEMENTAL JURISDICTION
28 USC 1367: jurisdiction over state claims that forms part of the same case or controversy with
federal court claim
Legal justification- efficiency, convenience, and fairness to litigants, would be
awkward to permit them to join claims under rule 18 and then preclude federal courts
from hearing the entire case.
1367(a): grants jurisdiction if it is part of the same case or controversy; includes joinder of
additional parties
1367(b): takes away jurisdiction: applies only to diversity cases, not fed. Question cases.
1367(c): district court can decline supplemental jurisdiction

To get to 1367c, logically you have to figure out if the power even exists as filtered
through 1367 (a) + (b)

If claim raises novel issue of state law, state law claim dominates, original jurisdiction claims
have been dismissed, or other compelling reasons/exceptional circumstances

If the federal claim gets dismissed early on in litigation process, it's proper to
dismiss state claim
If the federal claim gets dismissed very late: it would be serious waste of
resources to dismiss

First, claim must have federal jurisdiction under federal question or diversity
o Second, claim can be heard if it satisfies supplemental jurisdiction
To satisfy supplemental jurisdiction:
o State and federal claim must derive from a common nucleus of operative fact
o So closely related that p would be expected to try them all in one judicial
proceeding.

NOTE: a second claim can be against a different Defendant if common nucleus of operative fact
(STO)

ANALYZING SUPPLEMENTAL JURSIDICTION

Does 1367(a) grant supplemental jurisdiction to this claim?

o YES if it is part of same case or controversy
Does 1367(b) take away supplemental jurisdiction?
o Applies only to diversity cases, not federal question cases
o Only takes away supplemental jurisdiction in claims brought by Plaintiffs against:
Rule 143rd party
Rule 19: compulsory joinder
Rule 20: permissive joinder
Rule 24: intervention
If additional Plaintiff is joined under Rule 19 or 24
UMW v. Gibbs- tried before existence of 1367, language codified in 1367
Plaintiff loses job: brings federal Labor Mgt Relations Act claim and state conspiracy claim.
HELD: State and federal claims must "derive from a common nucleus of operative fact." So
closely related that Plaintiff "would be expected to try them all in one proceeding. The federal
claim gets into federal court under federal question jurisdiction. Second claim doesn't have
federal subject matter jurisdiction but it does arise from same nucleus: therefore, it can be
litigated in federal court.
In re Ameriquest-TILA Intertwined
Count 1 of the complaint under the federal Truth in Lending Act, seeking rescission of the
mortgage and statutory damages
Count 2 and 3 are state law fraud claims against all defendants
HELD: YES, the federal court can evaluate the state claims because Skanes claims are explicitly
connected that her TILA claims would be affected by a dismissal of the state claims
If courts dismiss counts 2 and 3, they may be unable to grant the full measure of relief Skanes
seeks in Count 1. Because they cannot conclude that the resolution of one of her state claims will
have no effect on the resolution on her federal claims, they cannot deny supplemental jurisdiction
The court has to resolve one claim before deciding the remedy of the other, so the case hinges on
the declaration of what P owed because they were intertwined.
Szendrey Ramos v. First Bancorp-really a case about State law that Federal court doesnt
want to hear because of the federal claims insignificance
Sued alleging violations of federal employment law (Title VII) and violations of the PR
Constitution, defamation and tortuous interference with contracts
HELD: NO. The PR law claims will not be under supplemental jurisdiction and will be dismissed
without prejudice
o The PR claims far outnumber the federal claims, and their scope exceeds the federal
claims
o They have their own elements of proof that are not necessary to establish the Title VII
claims
o Also have complex or novel issues of state law (subsection 1 of 1367 c)

REMOVAL
There are many cases of concurrent jurisdiction: if Plaintiff files a concurrent claim in state court,
Defendant may remove it to federal court. But only original defendants can remove, those made
defendants by a counterclaim cannot (SCOTUS statutory interpretation)

28 USC 1441
(a): Removal from state court to federal court in the district where the action is pending.
Only if federal courts have original jurisdiction.
(b): Limitations:
If the claim is based solely on diversity, cannot remove if Defendant is on "home
turf" (even if it could have been brought in federal court)
o If federal question, Defendant may remove regardless of citizenship of
parties.
o If Plaintiff dismisses claim against 'home turf' Defendant, then removal OK
(c): allows removal of entire case if federal question claim is joined to state claim.
1446a allows defendant to include in notice of removal any further allegations that are necessary
to demonstrate his right to remove. The allegations are subject to the same ethical standards as
the allegations in pleading.

PERSONAL JURISDICTION
A geographical limitation on the places where a plaintiff may choose to sue a defendant for a
particular claim. Consent makes personal jurisdiction OK, regardless of other factors.
ORIGINS
Pennoyer v. Neff Presence and Consent
Case I: Mitchell v Neff, a non-resident, who was not served with process. Default entered against Neff. He
then got land in the state which was seized and sold to Pennoyer.
Case II: Neff v Pennoyer (for the land).
Due process requires appearance or personal service b/f D could be personally bound by any
judgment.in personam.
o Notice? No holding on the issue: they state the negative:
Because state sovereignty is a central idea, it can never be appropriate for
service to go out of state.
Service of process by publication is only allowed where non-resident property in state is attached
by the court before the litigationin rem. (You cannot get an adjudication beyond the value of
the property. This is the only holding about notice).
Resident: D is found within the state (not being present even though you have a domicile is not
good enough).
Case I: jurisdiction was invalidhe didn't have property at the time suit was filed. Case II: full faith and
credit requires the federal court to give effect to the judgment in case 1. Exception: if the court in Case 1
lacked personal jurisdiction.

Lack of personal jurisdiction in Case 1 is the only universally accepted basis for refusing to give
effect to that judgment, which is what happens in Case 2.
If full faith and credit clause and Mitchell v. Neff was done correctly, then second case would
have to respect that.
No collateral attacks on a first case except for the absence of personal jurisdiction in the first case.

No person is subject to the jurisdiction of a court of the state, unless he appear in the
court, or be found within the state, or be a resident thereof, or have property therein; and
in the last case, only to the extent of such property at the time the jurisdiction attached.

Under Pennoyer, a deserted spouse could sue for divorce (though not alimony or child support) even if absent
spouse could not be served within the state.

Pennoyer became impracticaltransient presence in the state: automobiles and corporations

TYPES OF PERSONAL JURISDICTION
1. IN PERSONAM: jurisdiction over a person. Presence of D in the state. Normal form of action
against an individual, company, or some entity
2. IN REM: Jurisdiction over the thing. Property in State. (attaching property, must be at

beginning of suit). Whatever damages can be recovered are limited to the value of the
property.
"TRUE" IN REM: action literally against the property. Probate, registration of title.

Once they are adjudicated, determines rights of everyone

QUASI IN REM: 2 Types
TYPE I: dispute is really about the property itself, property is the subject matter of
the underlying dispute. Not an adjudication against all the world, its an adjudication
against finite number of defendants.
This will never result in a conclusive judgment against everyone
EX: Quite title- when people are suing each other over the land
TYPE II: Attachment of property
Plaintiff's claim is usually not connected to the property that is attached. Not
necessarily true that the underlying dispute is about the property. It is a way of
getting litigation started.

GENERAL JURISDICTION
Defendants contacts with the forum state are sufficiently substantial to support jurisdiction over
claims unrelated to the contacts." Contact with the states are so pervasive that any aspect of their
operation can be sued
SPECIFIC JURISDICTION
The more closely related the contacts and the facts giving rise to the claim, the more likely the
court is to uphold jurisdiction. Claims only related to the contacts.

CHALLENGING JURISDICTION
COLLATERAL ATTACK: a defendant may attack a judgment rendered without jurisdiction in a
2nd, collateral proceeding if the defendant did not appear at all in the proceedings

PRE-ANSWER MOTION (12(b)(2)): Or raise it as a defense in the answer

SPECIAL APPEARANCE: show up for the purpose of contesting jurisdiction. This is different
from presence and consent.

CA: this is called "move to quash service of process" (If denied, Defendant must seek immediate
appellate review)

CONSTITUTIONAL STANDARDMINIMUM CONTACTS

Minimum contacts can establish either General of Specific Jurisdiction depending on the contacts:
International Shoe Co. v. Washington (1945)Minimum Contacts: substantial justice and fair play
Shoe: incorporated in Delaware and principal place of business in Missouri. No offices and didnt make
contracts in WA.
HELD: state can assert personal jurisdiction b/c Shoe has minimum contacts w/forum state so "suit does
not offend traditional notions of fair play and substantial justice."
2 part test: Contacts and Fairness.
Minimum Contacts: depends on quality and nature of contacts: soliciting business, sales reps.:
receiving benefit and protection of laws.
Fairness: factors to determine: magnitude, purposefulness, systematic and continuous nature;
relation b/t contacts and cause of action; forum state's interest in suit. rem

NOTE: Shoe overruled Pennoyer only with in personam cases

No Contacts

Casual or
Isolated

Single
Act

Continuous
But limited

Substantial or
Pervasive

No
Jurisdiction

No
Jurisdiction

Specific
Jurisdiction

Specific
Jurisdiction

General
Jurisdiction

Applicability of minimum contacts to individuals and in rem jurisdiction

o Property alone in the state is not sufficient for general jurisdictionthere has to be some
other contacts
o If the property were the subject of the litigation, specific jurisdiction, then it is ok.
Shaffer v. HeitnerProperty won't support general jurisdiction but it will specific jurisdiction
Heitner filed derivative suit in Delaware against officers. (Quasi in rem Type II). HELD: the State cannot
assert jurisdiction over a person on the basis of property alone. If the claim concerns the property itself,
then jurisdiction exists. If the property is unrelated, jurisdiction on the presence of the property alone
would not support the State's jurisdiction. If a direct assertion of personal jurisdiction over the defendant
would violate the Constitution, an indirect assertion of jurisdiction should be equally impermissible. It is
fundamentally unfair to the defendant. There must be some contact with the state. Concurring Opinion:
said that real property could support general jurisdiction.
NOTE: Now, use Shoe 'minimum contacts' test for all assertions of jurisdiction (quasi in rem too).
Attachment jurisdiction is not gone: can't be used over unrelated claims or when the Defendant
doesn't have other contacts within the state.
When Defendant is in the state but evading process, it would be ok to attach his property.

What types of contacts count to satisfy jurisdiction?

1980
WWV
Specific

1985
Burger King
Specific

1990
Burnham

2011
McIntyre
specific

2011
Goodyear

Pavlovich

World-Wide Volkswagen Corp. v. WoodsonContacts: Purposeful Availment

Robinson bought Audi in NY; driving to AZ they crash in OK and sue retailer and regional distributor in
OK. HELD: no personal jurisdiction when the only connection is the accident. Ds have no minimum

10

contacts w/OK b/c they did not purposefully avail themselves to the state. Factors to determine
jurisdiction:
o Foreseeability: foreseeable that a car will end up in OK
But it's NOT foreseeability that a car will end up in OK
Foreseeability that D should reasonably anticipate being hailed into court in forum
state
Here, Ds do not advertise or distribute in OK, P's unilateral action took car there.
o Stream of Commerce:
o Purposeful availment: the defendant chose to have some contact with the state; the idea of

purposeful direction of products into the forum

Minimum contacts and fairness analysis:
Burger King Corp. v. RudzewiczContinuous but Limited: Specific Jurisdiction
BK (FL corp) sues Mich franchise in FL for back rent. HELD: Contract had substantial and continuous
connection with the state: specific jurisdiction. Where Defendant has purposely directed activities to the
forum state, jurisdiction is reasonable and Defendant will have to argue why it is unreasonable.
o Contacts: Defendant deliberately reached out beyond Mich and negotiated with a FL corporation.
D purposefully availed himself of the protection of FL laws by entering into contract
governed by FL law.
o Fairness: to defeat jurisdiction must show that litigation is 'so gravely difficult and
inconvenient' that a party is unfairly at a 'severe disadvantage' in comparison to his opponent.
Wealth and negotiation power of P over D doesn't seem to matter.

After Burnham: (assuming Scalia's plurality opinion is good law) must ask if there are minimum
contacts or if there is residence (defined as presence in the state).
Burnham v. Superior Court(Plurality) No Need Contacts: Presence is Enough
W moved to CA. H served w/divorce papers while in CA doing business and visiting children. HELD:
Scalia: jurisdiction based on physical presence alone constitutes due process b/c it is one of the
continuing traditions of our legal system. Minimum contacts are fine but Shoe and the minimum contacts
test were devised to apply only to cases that fall outside the Pennoyer theory. Contacts are not an issue
with individuals. (But must still look to contacts with people).
Brennan: reaches the same result but applies reasonableness and fairness: protected by CA laws, etc.
Contacts do apply. (Spilly: trivial and in any way at looking at the case).

McIntyre Case
Fair to the defendant to subject them to litigation in forum only if they have purposely availed
himself or herself in that forum.
Pavlovich- not the typical internet case, since its not commercial
CONSENT
A Defendant can consent to jurisdiction: this creates jurisdiction in a court that would otherwise lack
jurisdiction

11

NOTICE AND SERVICE OF PROCESSFRCP 4

BACKGROUND
Pennoyer:
Equated power with personal service of process (didn't deal with notice)
Seizure of property accomplishes notice b/c law assumes that people keep an eye on
their property
o In rem proceedings
Today, Notice and Consent are separate: there could be a legitimate assertion of personal
jurisdiction with insufficient notice and vice versa.

2 STANDARDS FOR NOTICE:

CONSTITUTIONAL STANDARD
Mullane v. Central Hanover Bank & Trust Co. Due ProcessNotice by mail
Defendant notified customers of annual proceeding through newspaper ad. Proceeding determines
whether administrator violated fiduciary duty. HELD: due process requires notice to be such that
it is reasonably calculated to reach interested parties and afford them an opportunity to present
their objections. If a person's whereabouts are unknown after reasonable efforts to find them,
publication is probably sufficient. If their residence is known, notice by publication is not enough:
must mail them. When property is brought into court, publication is not adequate.
**NOTE: the court acknowledged that some letters would not get through to recipients but
reasoned that under the circumstances, where all recipients had the same interests, contacting a
certain number of people in the group would serve approximately the same function as contacting
them all.

STATUTORY STANDARD: FRCP 4

4(d): Waiver of Service of Process: you don't have to make service if defendant agrees to waive it
(1) Defendant who waives service does not waive objection to venue/jurisdiction
(2) Plaintiff may request that defendant waive service by sending request through mail.
a) If Defendant is in the US and fails to comply with waiver, Defendant must pay
for costs of service
b) Costs to effect process, costs + reasonable atty fees for any motion to collect
(3) Incentive to waive: Defendant gets 60 days to answer complaint instead of 20
(4) By waiving service, Defendant waives 12(b)(4) and (5) objections
4(e): Service upon Individuals in US
(1) Besides (2), you can use any procedure that the state authorizes for service of process
in their courts: (E.g. if the state allows for mail service, then mail service is ok)
(2) Classic personal service: Serving Defendant personally or leaving a copy at his house
with someone of suitable age and discretion: you hire someone to do this.
4(m): Service must be within 120 days of filing complaint (court may extend with good cause)
4(k): See Long-Arm Statutes, next page.

12

LONG-ARM STATUTES
Statutes authorizing courts to reach beyond their borders

1. Is it constitutional?
2. Does it comply with the applicable long-arm statute?
28 USC 2361: FEDERAL INTERPLEADER RULE
In any civil action of interpleader under 1335, a district court may issue process anywhere in the
US: it doesn't have to remain in one area.
Gibbons v. Brown-Personal Jurisdiction for D whose only contact is lawsuit in FL earlier?
G sued Mr. B in FL for crash; 2 yrs later, Mrs. B sues G in FL for her injuries in same crash. Rule: FL
long-arm statute: Defendant must be "engaged in substantial and not isolated activity within the state."
HELD: no personal jurisdiction over G. Mrs. B must show that long arm extends to G (statutory) and that
the minimum contacts are sufficient to satisfy due process (constitutional). Case 1 was 2 years earlier and
involved G plus a non-party (Mrs. B not even involved.) Even suit with same subject matter is not
'substantial' enough contact.

NY Long-arm: Defendant must regularly solicit business or engage in any other persistent
conduct and should reasonably expect act to have consequences in the state.
CA long-arm: authorizes jurisdiction in any case that would be permitted by Constitution
Don't need 2 part inquiry (just Constitutional inquiryminimum contacts)
Long-arm that specifies activities or effects within state: pretty similar to minimum
contacts

NO FEDERAL LONG-ARM STATUTE

FRCP 4(k): Provides federal system with long-arm principles
(1)(A): the state long-arm statute will govern federal court sitting in state
(2): there is nationwide service of process: authorizes constitutional jurisdiction beyond
long-arm statute ONLY in situations where personal jurisdiction would be available
nowhere else in the US
NOTE: **This only applies to federal question cases, not federal diversity cases.** Also, 4(k) cannot
create personal jurisdiction where Constitution does not permit it

COMPARISONPERSONAL v. SM JURISDICTION

Domicile is relevant to both types of jurisdiction

o But in applying the concept to determine personal jurisdiction, the court will ask whether
the defendants domicile is in the state where suit is brought.
o When invoking this concept to determine subject matter jurisdiction based on diversity,
the court will compare the plaintiffs domicile to the defendants to make sure they differ.
Consent
o Personal: you can consent to personal jurisdiction
o Subject Matter: you can't consent to this

13

PERSONAL JURISDICTION ANALYSIS

Is federal subject matter jurisdiction fulfilled?
Check for waiver.
Notice: both statutory (FRCP 4) and Constitutional (Mullane)
Jurisdiction:
o Statutory: state long-arm or FRCP 4(k)(1)(B-D)
o Constitutional:
General: Continuous and systematic contacts or
Specific: fewer and discrete
Jurisdiction based on presence alone constitutes due process (Burnham)
o NOTE: Split in Burnham (Mention this)
Little business in state does not equal general jurisdiction (Washington
Equipment)
Minimum Contacts cannot offend notions of fair play and substantial justice (Int'l
Shoe)
Applies to all assertions of jurisdiction (Shaffer)
Fairness factors (Int'l Shoe): fairness
Defendant must foresee being haled into court (WWV): contacts
o Plaintiff's unilateral act is not enough
Numerous contacts may overcome fairness unless gravely difficult (BK):
both
If internet: must have intent to aim at forum audience (Young): contacts
Determines which district within the state has jurisdiction. Flows solely from statutory rather than
constitutional sources.
**With determining venue, we're only determining whether venue is propermust still ask whether
the state is proper.
In analyzing venue problems, first determine whether the action is based solely on diversity
jurisdiction12(b)(3) is the defense for improper venue.

II. VENUE
28 USC 1391
(a): venue for an action based only on diversity:
(1): district where any defendant resides, if all defendants are from the same state
(2): where a substantial part of the events occurred, or substantial part of property is situated.
(3): a district in which any defendant is subject to personal jurisdiction at the time action is
commenced, if there is no district in which the action may otherwise be brought.
(b): venue for non-diversity only actions:
(1): same as for (a)
(2): same as for (a)
(3): a district in which any defendant may be found if no other district is available.
(c): corporate defendants reside in any district where it is subject to personal jurisdiction
(1): If state has multiple districts, treat district as separate state and to see if jurisdiction exists
(2): If no districtcorporation resides in district where it has the most significant contacts.

14

Dee-K Enterprises Inc. v. Heveafil

Cause of action: antitrust. Clayton Act lays venue in any district where the defendant is "found"
or where it "transacts business." Foreign defendants cannot be found in any jurisdiction. 1391
says American Defendants can be sued in any district where it can be found. Use sufficient
contacts analysis to determine "found."

(d): An alien may be sued in any district. (Personal jurisdiction must still be met though).
28 USC 1392
Any local civil action, involving property located in different districts in the same state, may be
brought in any of such districts.

TRANSFER
Transferring the case from one federal court to another.
28 USC 1404(a): for the convenience of parties and witnesses, in the interest of justice, a district court
can transfer case to another district where it might have been brought.
Venue is proper but want to move it somewhere else.
28 USC 1406(a): when venue is improper, dismiss or transfer to proper venue (if interest of justice)
1406(b): if D waives venue objection, don't have to dismiss or transfer

28 USC 1631: when a civil action is filed in a court w/no jurisdiction, court shall transfer (if interest of
justice) to any court where it could have been brought.
The action proceeds as if it had been filed in correct court on the date it was filed in wrong court.
Venue is proper, but no personal jurisdiction.

Distinction between 1404 and the other two:

o With the others, the court was improper to begin with
Once it's transferred using these two, the new court's laws should apply
o But with 1404(a): the new court should apply the substantive law that would have been
applied by the old court because there was no technical defect with the first court.

FORUM NON CONVENIENS

Even if a court has personal jurisdiction, subject matter jurisdiction, and proper venue, it may refuse
to hear a case. (e.g. the case is so much more centered in a different district)
Required that an adequate alternate forum exists (can be other judicial system)
State courts can use this. (e.g. if all the evidence is in another state).
Piper Aircraft v. Reyno
Plane crashed in Scotland w/Scottish decedents. HELD: Plaintiff's forum choice is only overcome when
private and public interest factors point to a different forum.
Private: access to sources of proof, availability and costs of witnesses, possibility of view of
premises, ease of case: all point to Scotland

15

Public: strong "interest in having localized controversies decided at home," administrative

difficulties, trial of diversity case where law governs, avoidance of conflict of law problems,
unfairness of burdening citizens in unrelated forum w/jury duty: all favor Scotland.
The possibility of a change in substantive law should ordinarily not be given substantial weight in the
inquiry. This doesn't mean that it should never be a consideration: if the remedy provided by the alternative
forum is so inadequate, the unfavorable change in law may be given substantial weight.

DIFFERENCE B/T FORUM NON CONVENIENS AND TRANSFER

Forum non conveniens: common law, available to Defendant only, less discretion, original court
has personal jurisdiction and venue
Transfer: statutory, available to Plaintiff and Defendant, more discretion, orginal court need not
have personal jurisdiction and proper venue

III. PLEADING
The legal submissions that set forth the parties claims to relief and their defenses. It sifts out the facts
and legal issues of the incident and gets things started. Two things are designed to do this:
Complaint & Answer
FRCP 7: PLEADINGS ALLOWED; FORM OF MOTIONS
(a) Pleadings Allowed: a complaint; an answer; a reply to a counterclaim; an answer to any crossclaim; a third-party complaint; and a third-party answer.
(b) Establishes the procedure for motions: an application to the court shall be made in writing, shall
state with particularity the grounds therefore, and shall set forth the relief or order sought.
(c) Got rid of the old Common law pleadings

COMPLAINT
A. COMMENCES ACTION: Filing commences action and is what accounts for the statute of
limitations
B. FRCP 8(a): Elements and Specificity of a Complaint: A short and plain statement:
1. of the grounds upon which the courts jurisdiction depends
2. of the claim showing that the pleader is entitled to relief, and
3. and a demand for judgment for the relief the pleader seeks
Form 11 is an example of a short and plain statement
SPECIFICITY OF A COMPLAINT: FRCP 8(a)(2)
Plaintiff must make a short and plain statement of the claim showing that she is entitled to relief.
May need to be more specific to avoid a demurrer (see Pre-Answer Motions)
ELEMENTS OF A CAUSE OF ACTION: a complaint must identify all the elements of the claim
(the cause of action) at issue
1. Some elements refer to conduct, others to mental states, and other to conditions.
2. Plaintiff must prove all elements to win: they have the burden of proof
3. If no cause of action is stated, defendant can file a demurrer:
Haddle v. GarrisonSurvived a 12(b)(6) motion

16

Defendant filed for a demurrer under rule 12(b)(6) stating that Plaintiff was not injured in his
property because his at-will job was not his property. HELD: just because at-will employment is
not property for purposes of the Due Process Clause does not mean that the loss of at-will
employment may not injure petitioner in his person or property for 1985(2) (can count as
injury). The complaint is sufficient to infer a cause of action.
Gillispie v. GoodyearDidnt survive a 12(b)(6) motion
HELD: demurrers are affirmed b/c the complaint did not state facts to support a cause of action.
Not enough to allege an injury and call it negligence; negligence is not a fact, but is the legal
result of certain facts.
The problem with Gillispies complaint is that it pleaded legal conclusions rather
than the elements of each legal claim.
This is in code pleading regime; under FRCP this would have been sufficient

Mitchell v. Archibald & KendallQuestion of law versus question of fact

Ds employees told Plaintiff to park across the street (where they usually told truck drivers). HELD: case
dismissed. Plaintiffs argument imposes a new theory of liability. You cant base a claim on a new theory
of liability without claiming to extend or change the law. If Plaintiff alleged he was across street, then
12(b)(6) is appropriate b/c no duty to P. If Plaintiff said I was on premises, then no 12(b)(6) (because they
are covered by the law) but they risk Rule 11 sanctions: 11(b)(3) ungrounded factual assertions.

Previous Case law does not permit the inference in the complaint
What constitutes being on the premises?
o on premises means the definition of premises under Illinois law comes into play, and
the jury shouldnt be able to decide on the definition since its defined under case law.
o A Plaintiff does not have to specify that their complaint asks for an extension of existing
law, they have to take their chances that their case is reasonable
Another theory on which we could regard the complaint as legally sufficient.
o If you affirmatively send someone into a dangerous area, then under the law of Illinois,
there should be another duty that doesnt require you to be on the premises.
The dissent cited the Restatement of Torts which stated this.
PLAUSIBILITY IN PLEADING

Strength of Inference
Rule: Pleading not only has to be factually presented but also plausible.
Bell Atlantic Corp. v. Twombly (2007)
Parallel business conduct is insufficient to prove a violation of federal antitrust laws; cause of
action requires an agreement not to compete.
The claim was dismissed for failure to state a claim 12(b)(6), as the complaint only alleged
parallel business conduct and then inferred an agreement.
Introduced a PLAUSABILITY requirement. PLAUSIBLE- seems to mean higher than
reasonable
SCOTUS distinguished the requirement from heightened pleading under Rule 9.
Must introduce some facts that nudge the complaint from merely conceivable to plausible.
(good reason for thinking its more likely than the alternative)
RULE: An antitrust claim cannot survive a motion to dismiss when it only alleges that the
monopolists engaged in certain parallel conduct unfavorable to competition, if there is no
factual context suggesting conspiracy or agreement to do so.
Ashcroft v. Iqbal (2009)
17

A well-pleaded complaint requires non-conclusory, plausible, factual pleadings.

If there are no supporting facts and there is an obvious alternate explanation, the
claim is possible, but not plausible.
Showed that Twombly ruling was not only for antitrust cases, probably for all cases

Repercussions: harder for P to move a case into discovery. Seems to be more likely in complex
cases where the plaintiffs dont have the best evidence at the beginning. 8(a)(2) is being
subjected to a higher standard

18

BURDENS IN PLEADINGFRCP 8(c)

How do you allocate the burden to one party or another? Sometimes there will be statutes or common
law. It comes down to a policy choice in most cases.
1) Burden of PleadingWho has to state something first
2) Burden of Proof
a. Burden of Productionwho has to come forward with the evidence?
b. Burden of Persuasionwho has to persuade the court/jury of the elements of the claim?
i. Preponderance of evidence (civil cases)
FRCP 8(c)AFFIRMATIVE DEFENSES
In pleading to a preceding pleading, a party shall set forth affirmatively any defenses and are
waived if not included.
Gomez v. ToledoDefendant has burden of proving bad faith (See Qualified Immunity 9(b))
If its an affirmative defense, the P doesnt have to talk about it.
Plaintiff was demoted and wasnt offered a hearing. Defendant filed 12(b)(6) for failing to state a
claim because he did not allege he was fired in bad faith. Since qualified immunity is a defense,
the burden of pleading it rests with the defendant. Also, the facts were within the knowledge of
Defendant.
Jones v. Bock- Prison case. Failure to Exhaust is an Affirmative Defense
Under a 1983 claim it is necessary that all other avenues be exhausted. Failure to exhaust is an
affirmative defense. Whoever has the burden of pleading an element of a case also has the burden of
producing evidence to determine that allegation.

Natural assumption that if P has the burden of pleading, they will have the burden of proving.
o If he fails on even one of the burdens, he could have a verdict directed against him.

A municipalities cannot raise the defense of qualified immunity

CONSISTENCY IN PLEADING: FRCP 8(d)

Rule 8(d): A party may state as many claims and defenses as it has, regardless on inconsistency. The
pleading is sufficient if any one of them is sufficient.

While separate inconsistent claims and defenses are permitted, the factual allegations within
each claim or defense cannot be inconsistent with the alleged right of recovery, or else it
would defeat itself.
The ruling does not include cases where the plaintiff pleads contradictorily while knowing the
truth
The pleading is sufficient as long as any one of the claims is sufficient
On motion a judge can decide to sever the cases

McCormick v. Kopmann: Example of Alternative, Contradictory Claims

Plaintiff alleged two inconsistent counts: wrongful death against Kopmann and violations of
Dram Shop Act against the tavern. Freedom from contributory negligence is required to recover
under count 1 and intoxication is required under count 4. HELD: the alternative counts were
permissible to each other by law. She did not know full truth and pleaded in the alternative.

19

Why not try them both in separate cases?

o If separate: each jury might find that the other defendant (not being sued is liable)
o Strategic advantage of having them both in the same case because jury might think
(erroneously) that they have to pick one or the otherPlaintiff is more likely to win.
o When both Defendants are sued, each Defendant will find evidence against the other
to release their own liability.

DISFAVORED CLAIMS:
FRAUD FRCP 9(b) HEIGHTENED PLEADING REQUIREMENTS
Requires a Certain Particularity in Allegations
In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated
with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred
generally.
Scienter= intent or knowledge of wrongdoing
Why do we have a special rule for alleging fraud specifically?
Fraud is uniquely bad for Defendants reputation; so Plaintiff has to be more specific.
Protect Defendant against strike suits: a lawsuit that doesnt have much merit to it but the
Defendant wants to settle quickly because they dont want to deal with it.
o This is the kind of situation and claim that supposedly gives rise to such suits.

Stradford v. Zurich: Stradford stopped paying for his insurance, it cancelled. He started paying for it
again, and tried to make a claim 10 days later. Zurich counterclaims saying that Stradford was acting
fraudulent and Stradford tries to dismiss it for a 9(b) claim under 12(b)(6). Court let Zurich amend its
claim to further state what occurred.
PSLRA: Plaintiff must plead, in great detail, facts that constitute strong circumstantial evidence of
the required state of mind. Both requirements, securities fraud and the required state of mind, must
be pleaded with particularity.
Tellabs v. Makor- Based on PSLRA. Supreme Court trying to resolve Circuit Court differences
Comparative evaluation- must consider not only inferences urged by the P but also competing
inferences rationally drawn from the facts alleged.
What is strong inference of the required state of mind?
it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent
(higher standard than pre-Twombly)
Question of how it interplays with Twombley and Iqbal, since it sets a lower pleading
standard even though the court was trying to set a higher standard
CIVIL RIGHTSNO HEIGHTENED PLEADING STANDARD
42 U.S.C. 1983: Requirements:
1. Deprivation of a constitutional (federal) right
2. Under color of state

Qualified Immunity: Affirmative Defense

o Government officials are liable if their actions or orders violate constitutional rights, but,
they enjoy a qualified immunity if those actions took place under a reasonable
misapprehension of the law.
Available only to individual officers, not municipalities

20

When Defendant is a municipality, Plaintiff must prove a "pattern or custom"

(part of the second element)
Conundrum: Defendant must litigate to prove that he doesnt have to litigate

Leatherman v. Tarrant County Narcotics Intelligence & Coordination UnitNo Heightened

Pleading Standard for Civil Rights--**Does not apply to Individual Officials
Two separate incidents: forcible entry into a home based odors associated with narcotics. SC Held: the
courts cannot apply a heightened pleading standard in civil rights cases. Required under FRCP 8(a)
is a short and plain statement of the claim. Rule 9(b) does not include municipal liability. If
Congress wanted to include civil rights complaints, they would have.

HONESTY IN PLEADINGFRCP 11
This chills creative advocacy because it sanctions lawyers.
FRCP 11(a): SIGNATURE
Signature constitutes endorsement of pleadings
FRCP 11(b): REPRESENTATIONS TO COURT
Requires four things: that a pleading, written motion, or other paper, is formed under the best of the
persons knowledge. The party is certifying that:
1. Certifies that what lawyer files is not for improper purpose
2. Certifies that what the lawyer files is legally non-frivolous
an argument for extension of law will not violate this: you DO NOT have to specify
this with legal arguments. If you were making factual assertions that are not based on
law, you DO have to specify an extension. (See Golden Eagles and Mitchell).
3. Certifies that allegations are well-grounded in fact
4. Certifies that denials are warranted on evidence or are reasonably based on a lack of
information
Golden Eagle v. Burroughs: 11 (b)(2)-Sanctions not allowed for not claiming extension of
existing law
Argument: not substantiated by existing law and not specified as an extension. District judge
imposed Rule 11 sanctions against Defendant for not stating good faith extension and not citing
contrary authority. HELD: Rule does not require counsel to differentiate between supported by
and extension of law. District Ct. makes the Rule more complex and creates costly obstacles for
lawyers. Rule 11 does not require a lawyer to find all contrary authority and decide whether it is
indeed contrary or distinguishable as long as the argument is objectively reasonable. Doesn't
sanction frivolous arguments, only frivolous pleadings.
Walker v. Northwest: 11(b)(2) Legal Frivolousness. Sanctions for failing to plead complete
diversity.
If he had alleged that party on other side were all citizens of SD, it would have been untrue=
11(b)(3), but his contention that federal court has jurisdiction is just to plead own and state some
of defendants are different. This fails to do what the law requires so his complaint is deemed
frivolous.
Claudene Christian v. Mattel, Inc.: 11(b)(3)
Lawyer didnt adequately research because the back of the Mattel doll clearly says 1991, which
implies that it came first. But the other misconduct cant be included, dont know if Rule 11
sanctions should be used.

21

FRCP 11(c) SANCTIONS FOR VIOLATIONS OF 11(b)

Initiated by:
1. Motion: can be made by either party. made separately from other motions and shall describe
the specific violation of (b).
(A) It shall be served within 21 days after service of motion (giving it to the other party)
(B) A law firm shall be held jointly responsible for violations committed by its partners,
associates, and employees.
2. On Courts Initiative: the court may enter an order describing the violation of (b) and direct
an attorney to show cause why it has not violated (b).
(A) No monetary sanctions against a represented party (11(c)(5)) for a violation of
11(b)(2)
Implies that a represented party may be sanctioned.
Nature of Sanctions: Limitations:
A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of
such conduct. The sanction may consist of: directives of a nonmonetary nature, an order to pay a
penalty into court, or, if imposed on motion, an order directing payment to the movant of some or all
of the reasonable attorneys fees and other expenses incurred as a direct result of the violation.
SAFE HARBOR PERIOD
When Rule 11 sanctions are initiated by motion, there is a 21 day safe harbor period so that the
party who submitted the challenged paper has an opportunity to withdraw or correct within that time
frame. If Rule 11 sanctions are initiated by the court, no safe harbor period exists, rather the party
has the opportunity to explain why they dont deserve sanctions.
FRCP 11(d)INNAPLICABILITY TO DISCOVERY
This rule does not apply to disclosures and discovery requests, responses, objections, and motions
that are subject to the provisions of Rule 26 37.

22

RESPONDING TO A COMPLAINT
DEFAULT
FRCP 55DEFUALT
(a) Entry: when a party has failed to plead or defend, the clerk shall enter the partys default.
A defaulting party is deemed to have admitted all well-pleaded allegations of the
complaint.
(b) Judgment: Judgment by default may be entered as follows:
1. By the clerk: Can only be made if three prerequisites are met:
a. Defendant was defaulted because of a failure to appear and
b. Defendant is not an infant or incompetent person and
c. The moving party submits an affidavit establishing that the amount due is
either a sum certain or a sum that can be made certain by computation
2. By the court: in all other cases the party entitled to a default shall apply to the court
(c) For good cause, the court may set aside an entry of default
(d) A default judgment may be entered against US govt only if claimant establishes a claim or
right to relief by evidence that satisfies the court
o
o

It is still incumbent on the plaintiff to prove the damages, just because default judgment
is against D, doesnt mean that plaintiff is entitled to all the relief he is requesting
The entry of default deprives a defendant of the right to contest the factual allegations of
the complaint but does not prevent Defendant from appearing to challenge the amount of
damage

PRE-ANSWER MOTIONS

What is a motion and how does it differ from a pleading?

o Pleadings: make factual allegations
o Motion: simply a request to the court for an order. The motion itself is quite brief.
The type of motions you can make are limitless.
They are supported by a brief that makes the arguments.

FRCP 12
FRCP 12(a)(1): (A) A defendant must serve an answer (i) within 21 days after being served with
the summons and complaint, or (ii) if service of the summons has been timely waived on request
under Rule 4(d), within 60 days. Government has 60 days regardless.
FRCP 12(b): defenses by motion that may be made at the discretion of the pleader:
A motion asserting any of these defenses must be made before pleading if a responsive
pleading is allowed.
(1) lack of jurisdiction over the subject matter
(2) lack of jurisdiction over the person
(3) improper venue
(4) insufficiency of process
(5) insufficiency of service of process
(6) failure to state a claim upon which relief can be granted: can be made sua sponte if
patently meritless
o Can be raised at anytime before trial but only once
(7) failure to join a party under Rule 19

23

Filing a pre-answer motion under Rule 12(b) is an alternative to answering the complaint
When a federal court grants a 12(b)(6) motion, it is almost always done with a leave for the
Plaintiff to amend the complaint.

FRCP 12(c): Motion for judgment on the pleadings:

After the pleadings are closedbut early enough not to delay triala party may move for
judgment on the pleadings
Can be made at any time. E.g. If Defendant admits all relevant allegations but puts forth an
affirmative defense that Plaintiff believes is not sufficiently stated: If true, Plaintiff should win.
Defendant admitted all allegations and defense is unsustainable. If Plaintiff loses, then theres
still a trial but NOT on the facts of the case, only on the affirmative defense (the facts have
already been admitted by Defendant).
FRCP 12(g): Only 1 pre-answer motion is allowed, must lump all defenses
If a party omits any defense or objection then available to the party, the party shall not thereafter
make a motion based on the defense or objection omitted, except a motion as provided in
subdivision of (h)(2). Only waivable if available.
FRCP 12(h): There are 3 categories of 12(b) defenses:
1) Technical12(b)(2)-(5): These are disfavored because they are technical. If
Defendant does not raise them in first piece of paper to court, they cannot be raised
EVER.
2) On the Merits12(b)(6)&(7): These are more favored because they are on the
merits of the claim so they can be raised anytime before trial.
3) 12(b)(1): Can be brought up any time because subject matter jurisdiction is based on
the legitimacy of the court and is very important.
Other FRCP 12 motions:
FRCP 12(e): more definite statement (rarely granted): D claims that complaint is so vague that
she cant respond
FRCP 12(f): motion to strike (rarely used/granted)
Can eliminate part of the pleadings
Conceptual relationship between 12(f) and 12(b)(6):

24

THE ANSWER
Plain English
So What

Common Law
Demurrer

I didnt do it
Yes But
Technical Objections

Traverse
Confession and Avoidance
Dilatory Plea

FRCP
Motion to Dismiss for failure to state a claim upon
which relief can be granted, 12(b)(6)
Factual Denial 8(b)
Affirmative Defense 8(c)
Motion to dismiss for lack of jurisdiction, Motion
for more definite statement, etc. 12(b)(1)-(b)(7)

1. DENIALSFRCP 8(b) I didnt do it:

A party shall state in short and plain terms the partys defenses to each claim asserted and shall admit
or deny the averments upon which the adverse party relies.
8(b)(6)- any allegation that is not denied is deemed admitted
a. Types of Denials:
i.) General Denial : D denies every allegation in Ps complaint. Dangerous because
at trial, D must actually contest each and every allegation, or face Rule 11
sanctions.
ii.) Specific Denial: Defendant denies particular allegations
Zielinski v. Philadelphia Piers, Inc.A general denial must be made in good faith
Plaintiff sued the wrong party for an accident. HELD: the denial should have been more specific
as to which parts of the complaint they deny and admit. Since D was not specific enough, a
reasonable P would have understood the denial to be for negligence and not for owning the
forklift. P should have split the statement of negligence and ownership. D waited until trial to
raise their defense that P sued the wrong party, which is evidence of lack of good faith.
2. AFFIRMATIVE DEFENSESYes, but
Must raise in answer, not at trial. ?
FRCP 8(c) (see above): Lists the affirmative defenses Defendant can raise (list not exhaustive)
Layman v. Southwestern Bell Telephone Co.
Plaintiff sued for trespass. D issued a general denial and tried to put into evidence an easement
allowing their use of the land. HELD: an easement is an affirmative defense and Defendant has
duty under 8(c) to set forth an affirmative defense. The problem with Ds general denial is that it
claims that they didnt do it. But the easement is not I didnt do it evidence; it is a Yes, but
defense.
3. A SPECIAL AFFIRMATIVE DEFENSE: THE STATUTE OF LIMITATIONS
US v. KubrickNotice of Injury Standard. Once you know the existence and cause of injury, the
clock starts running.
Plaintiff injured when medication for surgery caused hearing loss. In malpractice + negligence claims must
have notice of injury standard. HELD: SOL accrues when P has notice of probable cause of injury, not
when injury begins or when P has notice of injury or infringement on legal right. P had power to get info
before S of L ran out.

o
o
o
o
o

Clock begins to run when claim accrues (important point). Court is implicitly saying
that you should reasonably know that you have a cause of action when you know the
cause
Accruement: date on which Plaintiff could have commenced suit.
Requires reasonable inquiry on the part of the Plaintiff
Dont want stale claims
Fraudulent concealment can toll the case

25

Unlike other affirmative defenses (easement, cont. neg.), all of which require the setting out of
additional facts, the statute of limitations is built into Plaintiffs claim itself.
o Courts allow you to file it in a pre-answer motion b/c no new facts are alleged, just dates

COUNTERCLAIMS
The goal of Rule 13 is judicial economy furthered by a single presentation of facts

COMPULSORY COUNTERCLAIMS: FRCP 13(a):

Compulsory if it arises out of the same transaction or occurrence (STO) that is the subject
matter of the opposing party's complaint. Compulsory counterclaims provide relief to D for being
involuntary brought to court

2 implications:
1. Must be asserted or forever waived (BARRED by res judicata if not asserted in the
first lawsuit)
2. The only kind of counterclaim that can be heard by a federal court even if it doesnt
have its own independent basis of jurisdiction, as long as its arises from same transaction
or occurrence.
Supplemental Jurisdiction (28 USC 1367): jurisdiction over all other claims that are
related in the action
Plant v. Blazer Financial ServicesCompulsory Counterclaim
P sued under TILA for failure to make disclosures required by the Act. D counterclaimed for money.
HELD: debt counterclaim is compulsory. Reasoning: relationship of the claims and rights of the
parties and the common factual basis (the loan) of the claims shows a relationship between the claim
and counterclaim.

PERMISSIVE COUNTERCLAIMS: FRCP 13(b):

Counterclaim is permissive if it does not arise out of the same transaction or occurrence as the
plaintiff's complaint. If not brought, it is not waived.
Must have Independent basis of Subject Matter Jurisdiction: Supplemental jurisdiction
is not available because a permissive counterclaim does not arise out of the STO
Always check to see if there is a federal question or diversity first
1367(b) does not kill supplemental b/c counterclaim is by D not P
Type: Addition of Claim by
Plaintiff or Counterclaim by
Defendant
Addition of claim

Counterclaim

Can Claim or Counterclaim

be Raised?

Federal Jurisdiction
Requirement

Consequences of Failure to
Raise Claim

Plaintiff may join as many

claims as she has against
Defendant
Source: FRCP 18(a)

The additional claims may be

heard by the federal court
even if they lack an
independent basis for federal
jurisdiction if there is a
common nucleus of
operative fact
Source: the principle of
pendent or supplemental
jurisdiction as codified in 28
USC 1367
Counterclaim may be heard
by the federal court even if it
lacks an independent basis for
federal jurisdiction if it arises
out of the same transaction

Failure to join the additional

claims will result in their
being forever barred if they
arose out of the same
transaction as the initial claim
Source: Federal case law
applying the same
transaction theory of claim
preclusion

Defendant can raise any

available counterclaim
against Plaintiff
Source: FRCP 13(b)

Failure to raise the

counterclaim will result in its
being forever barred if it
arose out of the same
transaction or occurrence as

26

or occurrence as the
Plaintiffs claim.
Source: 28 USC 1367 and
case law

the Plaintiffs claim.

Source: FRCP 13(a)

CROSS-CLAIMS:
FRCP 13(g): a party may bring a cross-claim against a co-party arising out of the same transaction or
occurrence. Permissive and must have SMJ. Since they always arise from STO, they have supp. Jur.

REPLY
Usually pleadings end with answer.
FRCP 7(a): requires the plaintiff to file a responsive pleading to a counterclaim.
- Answer to another partys answer. Only when the court orders it.
- Plaintiff can use all the same 12(b) motions as Defendant had available
- Counterclaims can be confused for affirmative defenses:
o E.g. Fraud: can be affirmative defense to breach of contract or can constitute a
cause of action

AMENDMENTS
FRCP 15(a)
A party may amend once before a responsive pleading is served as long as no prejudice, undue
delay or bad faith. (Done because a party may want to change story or discovery may reveal
facts).
a. If no responsive pleading required, may amend within 21 days after it is served
b. If D serves motion, P still has a right to amend (motion is not pleading)
PREJUDICE: at some point, a party ought to be able to pin down the other side.
The court can freely give leave when justice so when requires.
Beeck v. Aquaslide N Dive Corp.
Investigations by 3 ins. co. found it made by D and D answered that he did manufacture it. Upon
inspection, he concluded that he didnt and amended. HELD: justice requires amendment. P must
show prejudice to oppose but it was not the shown here. D did not act in bad faith when amended.
They relied on Plaintiffs insurance and other insurance companies reports.
The tension in this case: Defendant has questionable excuse for having mispleaded in the first
place, and Plaintiff will suffer crushing prejudice if amendment is allowed.

Is there prejudice?
o If Defendant wins on the issue of manufacture, then Plaintiff will not be able to sue
because of the statute of limitations;
But the real wrongdoers deceptively similar slide might be the basis of fraud
and might toll the statute of limitations.
o What is the prejudice then?
If he will be able to proceed against the proper wrongdoer, the prejudice
seems less obvious.
Is Plaintiff being deprived of his remedy if it werent for Defendant?
No: hard to find the real wrongdoer
Why does the court decide the way they did?

27

If it went to trial, what would happen at trial? The trial would be a farce: a false
contention: They wouldnt be able to bring up the issue that they werent the
manufacturer
o Even if Beeck finds MR.X, the real defendant, Beeks isnt really going to get much
so maybe its better for Aquaslide to not be forced to go through it (Lesser of two
evils)
FRCP 15(c): RELATION BACK
FRCP 15(c)(1): if Statute of Limitations has run:
(a) Relation back is permitted by law that provides the statute of limitations applicable to the
action, or
(b) The claim asserted in the amended pleading arose out of the same transaction or occurrence,
or
Moore v. BakerNot Same T/O, No Relation Back
P alleged pre-surgery issue, amendment tried to include surgery and post-surgery.
HELD: the new claim does not arise out of the same T/O. The complaint did not put D
on notice that new claims of negligence might be asserted. P would have to prove
completely different facts.
Bonerb v. Richard J. Caron FoundationSame T/O Yes Relation Back
P alleges court was negligently maintained and wants to add counseling malpractice.
HELD: P can amend to include counseling malpractice. The allegations in both
complaints derive from the same nucleus of operative facts. Plus, the complaint gave
adequate notice of a new cause of action. Discovery has not yet expired allowing
Defendant to do the remaining discovery.
NOTE: Rule doesnt have anything to do about notice but the courts add it in there to
resolve these grey area cases. Also in Moore, there was discovery but not in Bonerb.
(c) Changes the party or the naming of the party; the party to be brought in by amendment, given
that the party:
a. Has received such notice of the action that the party will not be prejudiced in
maintaining a defense on the merits, and
b. Knew or should have known that, but for a mistake about the identity of the proper
party, the action would have been brought against him.
Worthington v. WilsonDefinition of Mistake, NO Relation Back
P filed complaint naming unknown police officers and amended naming the real Ds.
HELD: The amendment does not relate back under FRCP 15(c) because the amendment
did not correct a mistake, rather corrected a lack of knowledge at the time of the
original complaint
AMENDMENT ANALYSIS
Has statute of limitations run on new claim?
1. Nodo Rule 15(a) analysisblameworthiness of D + prejudice to P
2. Yesdo Rule 15(c) relation back analysis
a. Does claim relate back?
i) Rule 15(c)(2): The claim asserted in the amended pleading arose out of the
same transaction or occurrence, OR
ii) Rule 15(c)(3): D received notice?
i. Then do 15(a) analysis

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IV. PRE-TRIAL DISCOVERY

GENERALLY
Discovery often ends litigation:
o Used to find evidence to prove/disprove claims: make more informed decisions.
(intimately tied to summary judgment or settlement)
o Inequality of resources: one side can wear down the other
Eliminates surprise at trial: imposes reasonable disclosure requirements on the parties
FRCP 26: general provisions governing discovery

SCOPE AND RELEVANCE

FRCP 26(b)(1)
Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or
defense of any party.

RELEVANT: reasonably calculated to lead to admissible evidence (broader than admissible): it

doesnt need to be admissible to be relevant
o Another test: Probative of an allegation: inferential information
Davis v. Precoat Metals- Relevant b/c of Pretext
Plaintiff filed a request for previous complaints of racial discrimination. HELD: Narrowly tailored
to the motions of the complaints so they granted the motion to compel. The idea of pretext made
the discovery relevant.
Steffan v. CheneyIrrelevant because not used as support for an inference
Plaintiff was discharged from Navy because he was openly gay. He refused to answer questions
about prior conduct. HELD: The navy is claiming that he was discharged because of his status as
a homo, so conduct is irrelevant; only relevant if it was a basis for discharge. Discovery must be
relevant ot the claim itself, not relevant defenses by the other side.
If he had denied his status as a homosexual, then conduct would have been relevant: inferential
relationship between the two.

FRCP 26(b)(2): Limitations

Limitations by the court if it determines:
(i)
Unreasonably cumulative or duplicative or is obtainable from some other source that is
more convenient, less burdensome, or less expensive
(ii)
Ample opportunity to obtain the information sought
(iii)
The burden or expense of the discovery outweighs its likely benefit taking into account
the needs of the case, the amount in controversy, etc.
FRCP 26(c): Protective Orders
The court may order to protect a party from annoyance, embarrassment, oppression, or undue
burden or expense.
Motion must be made in good faith and must show that they tried to resolve the dispute
w/o court order.
FRCP 26(e): Supplementation of Disclosure and Responses
(1)(A): duty to seasonably amend a response to an interrogatory, request for production, or
request for admission if you become aware that it is incorrect in any material way
Failure is equivalent to disclosing false information.
Does NOT include depositions: already built-in incentive to be truthful: its a sworn
statement.
FRCP 26(f): discovery is postponed until after 26(f) discovery conference

29

PRIVILEGE
FRCP 26(b)(1): Parties may obtain discovery of any matter, not privileged, that is relevant to the claim
or defense of any party
Drawn from the laws of evidence.
Protects information from certain sources:
o It does not block the underlying facts: the information could be discovered from a
different source.
All privileges can be waived (explicitly by party or implicitly by action)
Traditional privileges:
o Attorney-client, doctor-patient, priest-penitent, spouses, self-incrimination
Privileges have nothing to do with relevance.

DISCOVERY DEVICES
REQUIRED DISCLOSURES
FRCP 26(a): a party must provide basic information without awaiting a discovery request.
(1) Basic info on parties, documents used to support, computation of damages, insurance.
Must be made at or within 14 days after the 26(f) conference
(A)(i): must disclose information (name, address, telephone number) of each individual
that is :
Likely to have discoverable information
May support claims/defenses
Not for impeachment (to question the credibility of the particular witness)
(2) Disclosure of expert testimony that may be used at trial, accompanied by a report
(3) Disclose witnesses and evidence/documents that may be offered.
Must disclose all witnesses that you might want to use later. Cant hoard them and surprise the other side, must give
notice. (so if it comes up in discovery, then you can use)

DEPOSITIONSFRCP 30
(a): no more than 10 depositions without court order (must subpoena nonparties)
(b)(6): Corporation has to designate someone but its unresolved if the person they designate has
to really know (check textbook)
(c)(2): Objections
(d): attorney may instruct not to answer only to assert privilege or limitation placed
by court
(d)(2): court may impose sanctions on party for delay or frustration

Advantages and disadvantages:

o Can follow-up with additional questions (sworn-in, on the record, transcribed)
o Can depose non-party persons
o Can have subpoena duces tecum: subpoenaed nonparty (witness) shows up with certain
materials so they can consult and answer your questions
You cant serve interrogatories on anyone
o Higher costs than interrogatories
37(a)(3)(B)(i)- motion to compel for depositions

INTERROGATORIESFRCP 33

Not quite an affidavit, but seems to be more official nowadays.

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(a): any party may serve interrogatories, not exceeding 25 in number

Can serve additional interrogatories upon court order
(b)(1): Each interrogatory shall be answered separately and fully unless it is objected to
(4) Objections: Overly broad, unduly vague, and ambiguous; burdensome and oppressive;
privileged information; attorney work product; non-discoverable expert information; not
calculated to lead to the discovery of admissible evidence
(c): interrogatories may relate to any matter which can be inquired into under Rule 26(b)(1)
(d): Where the answer to a question may be ascertained from the business records, it is a
sufficient answer to such interrogatory to specify said records
37(a)(3)(b)(iii)- MOTION TO COMPEL (just for interrogatories)

Different types of interrogatories:

o Source (identify all employees who have been responsible for handling claims)
o Substantive (identify each witness you mean to introduce at trial)
o Contention interrogatory (do you contend that Plaintiff was inside the crosswalk)
Cannot ask for other sides legal theories/questions
Advantages of interrogatories:
o Relatively inexpensive and less time consuming
o Good way to get leads or identify people you want to depose
Responding party has duty to make reasonable inquiries to answer
Disadvantages of interrogatories:
o No spontaneous responses from other side (typically written by lawyers)
o Cannot follow-up inquiry
o Responding to interrogatories is like growing mushrooms: you keep them in the dark and
feed them mushrooms

REQUEST FOR PRODUCTION OF DOCUMENTSFRCP 34

(a): any party may request documents or tangible things, or entry on land
(b)(1): request these items with reasonable particularity
Relation to FRCP 33(d): business records can be produced in lieu of interrogatory
answer. A party may be better off using a rule 34 request because they may have to
search for the answer
NOTE: there is a difference between concluding that a document is not included in the request and
concluding that the requested document is objectionable on some grounds

Broad requests are usually allowed because they dont know what the other side has
o No presumptive maximum: this is where discovery gets out of control
For non-party you dont make a 34 request, you serve a sub-poena

PHYSICAL AND MENTAL EXAMINATIONSFRCP 35

(a): when the mental or physical condition is in controversy, the court may order examination
only on motion for good cause shown. (Higher threshold-needs to show that its actually in
issue)
(b): the party causing the examination shall deliver a copy to the requesting party. After delivery
the party causing the examination shall be entitled upon request of a like report of any
examination, previously or thereafter made, of the same condition.
Only discovery device that always requires a court order.

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REQUESTS FOR ADMISSIONSFRCP 36

(a): written request for the admission of the truth of any matters within the scope of Rule 26(b)(1)
Objections: must detail why answering party cannot truthfully admit/deny
(b): Any matter admitted under this rule is conclusively established. (Not evidence, but deemed
to be admitted fact for purposes of pending litigation only)
FRCP 37(c)(2): sanctions for not admitting the truth in Rule 36 request.
NOTE: diff b/n admission and interrogatory: when admitted, its established and cannot be litigated. When
answered in an interrogatory, its bad for you, but its not established for the purposes of litigation.
If you want them to withhold the information, you have to expressly make the claim and describe the nature of the
documents without revealing the information.

WORK PRODUCT DOCTRINEFRCP 26(b)(3)

ORDINARY: A party is not allowed to discover, (i) documents, (ii) prepared in anticipation of
litigation, (iii) by another party or a party's representative, unless,
o The party seeking discovery can show substantial need of the materials, AND
o The party is unable without undue hardship to obtain the substantial equivalent of the
materials by other means
OPINION: Mental impressions, conclusions, opinions, or legal theories of an attorney or other
representative of a party are never discoverable.
A party or person may obtain a statement previously made.
Facts are not work product.
Hickman v. TaylorNo showing of necessity (before actual rules)
Plaintiff requested all statements Defendant collected about the incident from the surviving crew
members. HELD: Plaintiff sought discovery of oral and written statements of witnesses whose
identity is well known and whose availability to petitioner is unimpaired. There is no showing of
necessity or any indication or claim that denial of such production would unduly prejudice the
preparation of Plaintiffs case or cause him any hardship or injustice.

Work product is not a privilege: it is a protection or defense.

In anticipation of pending litigation: doesnt have to be litigation that has already commenced,
imminent. Having done it for a prior litigation does not immunize it for future litigation.
Policy for work product:
o If not, it would lead to opposing attorneys exploiting contradictions in what the person
recalls and what the person said: there will always be contradictions
o Lawyers wont write things down anymore
o Make false notes of an interview (sharp practices)
Work Product Analysis:
1. Relevant?
2. Privileged?
3. Work Product?
o If yes: is it the kind that has attorneys mental impressions?
YES: Absolutely Protected: No discovery
NO: Conditionally Protected: Is there substantial need and undue
hardship?
YES: Discovery
NO: No discovery

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EXPERT REPORTS: FRCP 26(b)(4)

A written report and a list of information about the expert must follow.
Expert reports will often be the last significant discovery event.
Distinction between experts that testify at trial and those that are only employed for trial
preparation.
Must be identified 90 days before trial
Occasionally included in work product rule to include experts

CLAIMING PRIVILEGE OR PROTECTING MATERIALS: FRCP 26(b)(5)

A) When a party withholds information otherwise discoverable by claiming that the information is
privileged or subject to protection the party must
a. Expressly make the claim AND
b. Describe the nature of the stuff
B) If information produced is subject to a claim of privilege/protection the party making the claim
may notify any party that received it. After being notified, a party must promptly return or destroy
the information.

DISCOVERY ABUSE & SANCTIONSFRCP 26(g) & 37

FRCP 26Failure to play well with others.
26(g)(1): signed by attorney
26(g)(2): every discovery request must be signed to certify that it is:
(1) Made in good faith
(2) Not for improper purpose (unnecessary delay)
(3) Not unreasonable or unduly burdensome or expensive
26(g)(3): if without substantial justification a certification violates the rule, appropriate sanction
(but use Rule 37 for sanctions)
FRCP 3737(a): when responding party fails to make disclosure or objects, requesting party can make
motion to compel
If the responding party still doesnt give information, then 37(b)
(1): must be made after good faith attempt to resolve the matter without the judge.
37(b): Sanctions for failure to comply
37(c): Failure to disclose information or witness
(1): a party that fails to disclose info is not permitted to use as evidence at trial and
sanctions
(2): request for admission, if you know the truth and dont admit it, sanctions
37(d): ignores a discovery request: fails to attend; not answering interrogatory or showing up for
deposition
Spoliation- Inherent power of the court
Silvestri v. General Motors, Zubalaki (what you need for adverse inference: duty to preserve, culpable state
of mind, if only negligent- then relevance) When the duty to preserve kicks in trigger date, scope (what
they know, relevant to actions, whose documents to retain), hold on what to reasonably anticipate

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DISCOVERY AND PERSONAL ETHICS

Destroying documents and purging computers

o ABA Model Rules of Professional Conduct 3.4: lawyer cannot unlawfully obstruct
another partys access to evidence or unlawfully alter, destroy document or evidence
Experts: if the expert destroys documents during the normal course of business: is it ok? It is
sensible to tell him not to create unnecessary documents.
o Destroy list/notes: not good advice
o Destroy future documents: might not be unlawful
The lawyer can talk to the expert before he makes his final report, look at it, and dismiss him if
his report doesnt help.
o The expert is not versed in legal jargon and so the lawyer doesnt want him to say more
than he means to.
o The consultant is not at the point where he is a witness in this case: no serious danger of
the lawyer shaping his thoughts yet.
Discovery: passing request to client and saying give me what you have filling this description
o ABA Model Rules of Professional Conduct 1.1: lawyer has to behave competently
Be a zealous advocate
o In deciding whether a discovery order covers something:
If they hold it back and reveal it later, it looks conspicuous
What is the likely harm of giving it up and is that worth risking sanctions later?
Prepping a witness:
o Do not tell the client the position he ought to take
Fine line between prepping and coaching and telling
o Explain to him the legal consequences behind each position
o ABA 3.3: A witness cannot give an answer that the lawyer knows is false
o Advising a witness not to expand off the experts report: not to volunteer information
Nothing wrong with it
But these instructions should not be done in such a way that imposes on the client
a role-playing assignment.
Subordinate Lawyers:
o No Nuremberg defense:
But if you think partner is acting reasonably, probably will not be implicated
If you think partner is acting unreasonably, and you go along, could be
implicated under 5.2

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V. PRE-TRIAL ALTERNATIVES TO ADJUDICATION

Only 3% of cases make it past pre-trial adjudication

SUMMARY JUDGMENTFRCP 56
56(a): prosecuting party may move for summary judgment any time after 20 days from
commencement of action or from when adverse party moves for summary judgment
56(b): defending party may move for summary judgment at anytime with or without affidavits
STANDARD:
56(c): The judgment sought shall be rendered if there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law. Look at pleadings,
depositions, interrogatories, admissions, and affidavits to determine (need not be
admissible at trial itself).
GENUINE ISSUE
Evidence is of such a nature that a reasonable jury could return a verdict for the NMP

Scintilla Rule: scintilla of evidence for NMP is enough to defeat sum. judg.
The evidence is taken in the light most favorable to the NMPthat party gets the
benefit of all legitimate inferences
o This depends on the standard of proof because it affects the burden of
production: beyond a reasonable doubt, the one with the burden of
production

56(d): partial summary judgment: a court can rule on an issue if there is no genuine issue of
material fact
56(e): NMP may not challenge summary judgment thru allegations in its pleadings, but thru
affidavits or other means "must set forth specific facts showing that there is a genuine
issue for trial"
WITNESS CREDIBILITY
In deciding a summary judgment motion, the judge cannot take into account the
credibility of the witnesses.
SUMMARY JUDGMENT INQUIRY: 2 QUESTIONS
1. Has the moving party done enough in its supporting papers to get them to the second question?
(e.g. scrutinizing the material submitted by the NMP)
Adickes v. KressQuestion 1 AnalysisMust show the absence of a genuine issueHARD
to show
P sued D claiming a conspiracy between D and the police. HELD: D failed to fulfill his initial
burden of showing that there were no police in the store. If there were, it would be open to a jury
whether they conspired. Therefore, a genuine issue still exists and summary judgment must be
denied even if no opposing evidentiary matter is presented. MP has burden of showing absence
of a genuine issue. MP has burden of showing facts to support each element of claim/defense.
o The court is requiring Defendant to prove the negative of Plaintiffs case.
With Directed Verdict, MP doesnt have to show anything, just motion.

35

Celotex Corp. v. CatrettPoint to absence of a genuine issue

P sued for husbands asbestos death but failed to show Ds product caused it. HELD: for Ds
summary judgment motion. No requirement in Rule 56 that MP support its motions with
affidavits or materials negating the opponents claim. NMP doesnt have to do anything to avoid
summary judgment at this stage. When NMP bears burden of persuasion at trial, MP does not
have to have evidence. MP merely has to show that there is no evidence that other side will
be able to prove an essential element at trial. NMP will not be hustled into summary
judgment: 56(f) judge can postpone it until NMP has put together case.
o 56(c)(1)(b) is a restatement of Celotex
There is an alignment of burdens: the party bearing the burden of proof at trial bears the same
burden at summary judgment.
Nothing
Directed Verdict Standard

Something

Negate

Celotex Standard

Adickes Standard

What is the standard if P is MP? Jury would have to find for them. Why?
The burden of proof: If we answered yes to question 1 and P didnt have
enough evidence for a jury to find for her; and in question 2, D has nothing; we
would grant summary judgment to P even though she has nothing.

2. If so, has the NMP done enough in its supporting papers to avoid summary judgment?
Bias- Dont want to use because it seems very odd that the NMP didnt do enough, not a
mainstream down the middle case
Addresses the second question, by saying that you look at plaintiff- NMP evidence in light of DMP. Bad because youre not supposed to be weighing that and theres not a huge disparity.
Visser v. Packer Engineering AssociatesCant infer intent from knowledge
P sued D for age discrimination; D moved for summary judgment. HELD: for the defendant in
the motion. Reasoning: Plaintiff did not offer even an iota of evidence that his age was a factor
in the decision. He offered Packers knowledge of Vissers age and pension rights but the court
found them insufficient. A reasonable jury could not have found for Plaintiff.
o Spillenger disagrees- says the P did have the evidence (which would make the whole
burden shifting happen)
The higher Plaintiff's standard of proof, the harder it is to say that Plaintiff has provided enough
evidence.
Burden Shifting: if the standard were "but for," everyone would lose. But for SJ, the burden
shifts down to substantial factor. Once that is met, the burden is shifted to the defendant to
show that the age was not "but for" cause. He becomes like the plaintiff in the summary
judgment context. So you run through the two question test again.
P=MP (has burden of production)
D=MP (does not have
burden)
Question
Would a reasonable jury have to find for MP in the
1
absence of any opposing evidence?
Celotex
Question
Could a reasonable jury find for NMP?
Could a reasonable jury
2
find for NMP?
Unlike 12(b)(6), the evidence is not automatically assumed truejudge has to judge the evidence and
draw all reasonable inferences in favor of the NMP.

36

VI. TRIAL

The trier of fact: Judge or Jury

o 7th Amendment right to jury trialfor P or D in federal courts
Available only in courts of law, not equity
Test: whether party had right to jury in 1791
Today, law and equity merged (so look at remedy to tell difference)

FRCP 48NUMBER OF JURORS

Not fewer than six and not more than twelve membersunless otherwise stipulated, need
unanimity
CA courts: need
Both Plaintiff and Defendant have a right to a jury trial.
Unanimity requirement: jury verdict in civil case is usually unanimous but can be waived by
parties.

A verdict is not an announcement about truth, but which side was more credible

Controlling jury rationality:

o Courts control flow of information: law of evidence, jury instructions, Courts can comment
on evidence, but cannot trespass on jurys decision making
Jury instructions are written for: 1) jury and 2) appellate court (to determine if there
was a mistake.)
Courts control what jury does with the info (no wrong conclusions)
o Directed verdict, j.n.o.v., new trial
Taking away power from juries:
o New trial, j.n.o.v., directed verdict, summary judgment, even 12(b)(6) to some extent

PRESUMPTIONS AND BURDENS

BURDENS:
BURDEN OF PERSUASION: defines the extent to which trier of fact must be convinced in
order to find for party bearing burden.
Standard: by the preponderance of the evidence
BURDEN OF PRODUCTION: requires parties to produce, find, and present evidence
Party with this burden can lose fast if they dont find anything (Celotex)
Different parties may have burden on different issues:
Plaintiffnegligence; Defendantstatute of limitations
Reid v. San Pedro, Los Angeles & Salt Lake RailroadBounds of Rationality
Cow killed on RR near open gate and a mile from hole in fence. Dispute over where cow entered. If
through open gate, owner liable but if through hole, RR liable. HELD: D is not liable. When evidence is
equally compelling on both sides, court must enter verdict for party without burden of proof. Reasoning:
they inferred that the cow got on tracks from open gate because of her position.

When the evidence could go either way, the court must enter verdict for the party without the burden
of proof
o Taxi Cab Hypo: If 75% of cabs are White Co. and 25% Yellow Co.: P is hit by a cabcan
this case go to a jury to decide which one is liable?

37

Might not even be enough evidence to let the jury decide

JUDGMENT AS A MATTER OF LAWFRCP 50

JMOL DIRECTED VERDICTFRCP 50(a)
(a) A party at the close of the other party's case can move for JMOL. In so moving, the Defendant
would be asking the judge to take the case away from the jury. NOTE: can be brought up sua
sponte
(1) Ground for motion: A court will grant a JMOL motion if there is no legally
sufficient evidentiary basis for a reasonable jury to find for the NMP.
(2) Motions can be made any time before submission of the case to the jury
BURDENS AND JMOL

If MP has burden of proof, then grant only if evidence favoring party is of such compelling
strength that a reasonable jury couldn't find for the NMP.
If MP does not have burden, JMOL granted if NMP has no substantial evidence to permit
jury to find in its favor.
o The Defendant does not have to provide anything in support of their motion
D.V. v. S.J.: What accounts for the difference?
o Summary judgment comes earlier in the case: based on paper

Can't take into account credibility in JMOL

Pennsylvania Railroad v. ChamberlainCourt wrongly imputes credibility
Plaintiff claims husband was knocked off train during crash and killed. Ds 3 witnesses saw the whole
thing and said there was no crash. Ps witness heard loud crash and inferred collision. Also, evidence that
2nd car was faster than Plaintiff's car. Thus, Ps witness gives equal support to two inconsistent inferences.
HELD: court granted directed verdict in favor of party without burden. No verdict based upon a statement
so unbelievable reasonably could be sustained against the positive testimony of Defendant's witnesses.
(Spilly said that court may erred in judging the credibility of Plaintiff's witness.)
HYPO: even if one side has 50 clergy members and the other has 1 person saying another, DV
should not be granted

If reasonable men could differsend case to the jury

o Old rule: Scintilla: If there was scintilla of evidence for NMP, then no D.V.
o New: courts take more pragmatic approach and weigh the evidence (in light most
favorable to NMP)
Railroad Company v. Stout2 inferences = send to jury
Kid was injured when he played on a railroad turntable that was in a remote part of town b/c the safety was
broken. HELD: No DV for D. Where sensible men could infer 2 different things from facts, send case to
the jury. No dispute of factjust whether negligent (evaluative fact). Policy decision: the life
experiences of 12 men drawing one unanimous conclusion are wiser and safer than conclusion of one man.
Other reasons: negligence is normative question.

38

J.N.O.V.FRCP 50(b)
(d) If court does not grant JMOL, the case goes to the jury. The party may file a motion to renew
JMOL and a new trial in the alternative 10 days after judgment
(1) If verdict was returned, court can (A) allow the judgment to stand, (B) order a new
trial, or (C) direct entry of JMOL; or
(2) If no verdict was returned, court can, (A) order a new trial, or (B) direct entry of
JMOL
(c) If renewed motion is granted, court can conditionally grant a new trial. If judgment is
reversed on appeal, new trial shall proceed unless appellate court otherwise orders. If new trial is
conditionally denied, party may appeal

To make a j.n.o.v. motion, you must have motioned for directed verdict at close of evidence.
o This is because directed verdict is constitutional and j.n.o.v. is seen as delayed D.V.
If verdict is unsupportable b/c no rational jury could have found for NMP (winning)

FRCP 51Instructions To The Jury

Parties may request the court to instruct the jury on the law as set forth in the requests. Court shall
inform counsel of its proposed instructions prior to their arguments to the jury. The court may
instruct the jury before or after argument, or both. Opportunity shall be given to make the objection
out of the hearing to the jury.

MOTION FOR A NEW TRIALFRCP 59

If judge cannot grant j.n.o.v. granting a new trial is another weapon they can use to combat
unwarranted verdicts.
(a) Grounds for granting a new trial2 bases
1. Flawed procedure: something has gone wrong in the trial itself (not likely judge
will admit to mistake during trial)
2. Flawed verdict: Verdict against the weight of evidence (jury verdict could not
have been found by a reasonable person)
(b) Motion must be made within 10 days of judgment
(d) Does not require prior motions, can be raised sua sponte
NOTE: Move for both motion for a new trial with a j.n.o.v. so that if one is denied, you have the other
MISCARRIAGE OF JUSTICE STANDARD
Grant a new trial if, and only if, the court has the firm and definite conviction that a serious
mistake has been made. Not just that the judge would have voted the other way.
o

Less harsh than j.n.o.v. (merely begins contest over again), so the standard is lower
When the evidence is strong on one side and weak on the other, but the wrong
side won, the judge cant properly grant j.n.o.v. grant a new trial instead

Lind v. Schenley Industries

P claimed D made oral promise to raise his pay. Jury found for Plaintiff. Judge granted j.n.o.v. and a new
trial b/c verdict was against the weight of evidence. HELD: the trial courts decision was reversed. The
appellate ct must look closer at verdict against weight than mere flawed procedure. When jury verdict

39

turns on credibility of witnessno j.n.o.v. The judges duty is essentially to see that there is no miscarriage
of justice (not that he would have voted the other way). Appellate court will grant new trial if it's an
advanced subject matter for a lay jury. Appellate courts rarely grants new trial.
Abuse of discretion standard (appellate review). 3rd Circuit: should almost never grant a new trial on
flawed verdict (exception: long, complex cases). Dont reverse easily deferential standard.

DIFFERENCES
In J.M.O.L. and J.N.O.V., the ct is saying that the winner of the verdict had no evidentiary
support for at least one claim.
With new trials: You can take witness credibility into account.
Trial court has 4 options: creates problem for appellate courtFrom FRCP 50(c): which is
immediately appealable?

Grant j.n.o.v. and deny new trial: appealable

Grant j.n.o.v. and grant new trial: appealable
Deny j.n.o.v. and grant new trial: not appealable, this is not a final judgment
Deny j.n.o.v. and deny new trial: appealable, court will enter finding with jury verdict

FRCP 49SPECIAL VERDICTS: avoids sympathetic findings b/c it imposes transparency

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VII. APPEAL
FINAL JUDGMENT RULE
Subject to exceptions, in the federal courts one cannot appeal a non-final order or ruling
(interlocutory)
USC 28 1291
Courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of
the United States
FINAL DECISION:
One which ends the litigation on its merits and leaves nothing for the court to do but execute the
judgment (Caitlin v. US)
o
o

An order denying summary judgment or granting a new trial are not appealable because there
are still things to decide on the merits of the case
But an order granting summary judgment would be appealable

EXCEPTIONS

FRCP 54(b):
Deals only with multiple claims or parties: If theres a judgment for one or less than all of the claims
or parties, the judge can enter final judgment on that issue and you can appeal it. Entering judgment
for some claims earlier than others allows these to be appealable
Exception to the final judgment rule that requires all claims to be resolved
1. Appellate court may clarify issues that persist during trial; or
2. Issues involved for loser won't complicate case for remaining parties
3 PREREQUISITES for obtaining an immediately appealable judgment:
1. Multiple claims or parties fully resolved (cannot be all)
2. No just cause for delay
3. Entry of judgment
Liberty Mutual Insurance Co. v. Wetzel54(b) doesn't apply
District Court: summary judgment for Plaintiff for Title VII action but left unresolved the request for
injunction or damages. Defendant appealed and it was affirmed. HELD: For a decision to be appealable, it
must be a final decision. P's complaint advanced a single legal theory. 54(b) only deals with multiple
claims: a single claim plus damages are not multiple claims. Because the District Court did not grant
any relief, the judgment is not final and therefore, not appealable.
If the dist. Ct. had said that no reasonable jury could find for Plaintiff on damages and Defendant
was liable: that is appealable.
If the dist. Ct. had issued injunctive relief, that interlocutory order would have been appealable
under 1292.

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COLLATERAL ORDER DOCTRINE (Practical Finality Exception)

Prejudgment orders that finally determine claims of right separable from, collateral to, rights asserted
in the action, and that are too important to be denied review and too independent of the cause itself
to require that appellate consideration be deferred until the whole case is adjudicated.
Must satisfy 3 Conditions
1. Conclusively determine the disputed question that is sought to be immediately appealed
2. Resolve an important issue completely separate from the cause of action, and
3. Be effectively unreviewable on appeal from a final judgment
E.g. 12(b)(6): if it is denied, could it be appealed? No, it is not collateral to the cause of action.
Lauro Lines v. Chasser3rd Condition Not Met
D moved to dismiss wrongful death suit before trial because the forum-selection clause forces suit in Italy.
HELD: It is not an appealable order. The court has never held that the collateral order doctrine applies
where a district court has denied a claim, not that the Defendant has a right not to be sued at all, but that the
suit against the Defendant is not properly before the particular court because it lacks jurisdiction. The court
found that this is reviewable on appeal. Defendants contract does not terminate its exposure to litigation.
The majority found that the right contested is to not be subjected to binding adjudication in US courts: this
is a vindicable right. Therefore, the Defendant did not meet the third condition of the doctrine: (it is
reviewable on appeal). If the right were not to stand trial, then it would not have been reviewable because
they would have stood trial.

INTERLOCUTORY APPEALS- 1292(b)

Parties usually cannot appeal interlocutory (non-final) orders/rulings.
28 U.S.C. 1292(b): permits district court to certify interlocutory appeal from final judgments
TEST TO DETERMINE IF APPEALABLE2 FACTORS
o
o

An immediate appeal from the order may materially advance the ultimate termination
of the litigation and,
The order involves a controlling question of law as to which there is a substantial
ground for difference of opinion

The appellate court must agree. They are not widely used because the dist. Ct. doesn't want give up
power and the app. Ct. doesn't want to rule on every little thing.
WRIT OF MANDAMUS
Send the whole case up to the appellate court. The higher court can order the lower court to send up the
case since theyre acting ridiculously. Kind of the last resort.

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STANDARDS OF REVIEW
FACTUAL FINDINGS
"CLEARLY ERRONEOUS" STANDARD: Very deferential standard. Appellate court must have
a definite and firm conviction that a mistake has been made.
E.g. Finding of negligence (Stout)
Bench Trial:
FRCP 52: Scope of Review
a. (1) Court shall state conclusions of law and fact separately.
(6) Findings of fact, whether based on oral or documentary evidence, shall not be set
aside unless "clearly erroneous"
b. On a partys motion filed no later than 28 days after the entry of judgment, the court
may amend its findings or make additional findings and may amend the judgment
accordingly.
c. If a party has been fully heard on an issue during a nonjury trial and the court finds
against the party on that issue, the court may enter judgment against the party on a
claim or defense that, under controlling law, can be maintained or defeated only with
a favorable finding on that issue.
"ABUSE OF DISCRETION" STANDARD: very deferential standard: "if justice so requires."
Appellate court asks: was it so outlandish that it was an abuse of discretion?
Jury Trial:
i. General Verdict: appellate court must affirm that verdict if there is any evidence
in the record to support it.
NOTE: the usual way an app ct reviews a jury verdict is through a trial court's denial of a
motion for a new trial: the "abuse of discretion" standard will effectively be the standard
of review.

MIXED QUESTIONS OF LAW AND FACT

"CLEARLY ERRONEOUS" STANDARD
E.g. Intent to discriminate under Title VII (Pullman-Standard v. Swint)
Pullman Standard v. SwintQuestion of Law versus Fact
Dist Ct. found D's seniority system does not discriminate. App. Ct. reversed finding that dist ct.
had failed to consider relevant evidence. HELD: the Court of Appeals erred in the course of its
review. Reasoning: it confused law and fact: discriminatory intent is a finding of fact to be made
by the trial court, not a question of law or law and fact. Yet, the Court of Appeals made their own
finding on it. Therefore, App. Ct. can only reverse if dist ct's finding is clearly erroneous.

When the appellate court finds that district court failed to make a finding b/c of erroneous
view of law: remand. The trial court alone is the finder of facts.
ii. Instead the app. Ct. in Pullman found the facts. They didn't remand.
"DE NOVO" STANDARD: review the case anew
"Actual Malice" findings in libel cases regarding public figures

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LEGAL RULINGS ON THE MERITS OF CLAIM OR DEFENSE

"DE NOVO" STANDARD

ANCILLARY OR DISCRETIONARY RULINGS

"ABUSE OF DISCRETION" STANDARD
E.g. A trial for a new motion would be reviewed under the abuse of discretion
HARMLESS ERROR
28 USC 2111:
Federal courts are forbidden to reverse for errors or defects that do not affect the substantial rights
of the parties. If the district court errs and the appellate court finds that it erred, under the right
standard, and it is reversibly wrong, they can reverse. But if it is a harmless error, they can't
reverse.

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VIII. COMPLETED ADJUDICATION

RES JUDICATACLAIM PRECLUSION
"The matter has been adjudicated." It forbids a party from re-litigating a claim that should have been
raised in former litigation. It's an affirmative defense under 8(c) that's waivable if not raised.
GENERAL RULES:

If suit is brought in two courts: A and B:

o If B decides that A's judgment doesn't preclude the second claim and enters a conflicting
judgment with A's:
The party who lost on her preclusion argument should appeal
A third court should follow the decision of the second judgment if faced with conflicting
judgments:
o Reasoning: If the second judgment had been erroneous, it could have been appealed.
Res judicata has a limitation built into it:
o If you couldn't have brought the claim in the first case, e.g. the first case was in small
claims and this claim is for much more, then you shouldn't be barred for it.
o Before a claim can be precluded by a lawsuit, it must be a claim at the time of that suit:
any claims that could not be brought in an action will not be deemed to be merged into it.
Whether it's claim preclusion or issue preclusion, nobody can be precluded by virtue of prior
litigation that they were not a formal party to.
o The outcome might still come out the same because of precedent, but there is still a
distinction between precedent and preclusion
o E.g. case 1 A v. B for personal injuries in car crash; case 2 B v. A for personal injuries:
No res judicata b/c different P & D; but would be if jurisdiction has compulsory
counterclaim rule
If a plaintiff asks the court to assert supplemental jurisdiction in the first case and they reject it,
res judicata does NOT APPLY. If he does not ask, it does apply.
APPLICABLE LAW:

o
o

The second court must apply the law of the first state (for consistency). Transactional or
traditional.
When deciding if a claim is precluded in federal court, the district court uses state law.

3 ELEMENTS
Must satisfy 3 elements:
1. Valid: (jurisdiction)
2. Final Judgment:
3. On the merits

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1. VALID:
US CONSTITUTION ARTICLE IV 1:
"Full faith and credit shall be given in each state to the judicial proceedings of every other state."
28 U.S.C. 1738
"Judicial proceedingsshall have the same full faith and credit in every court within the United
States"
If res judicata would preclude a different court in the same state from hearing a claim,
full faith and credit will generally require courts of other states to give it the same effect.
2 THEORIES OF CLAIM PRECLUSION:
1. Transactional: claim is broadly defined to include matters related in space, origin, and
motivation (same transaction).
a. Many states and the federal system uses this definition
2. Traditional: if the parties and the cause of action are identical, the claim is barred. (See
Counterclaims, Amendments: relation back, and also supplemental jurisdiction).
Frier v. City of VandaliaTraditional Definition
Case 1: state court replevin action, Plaintiff lost
Replevin- plaintiff owns property, defendant has wrongfully detained it
Case 2: (federal court) 1983 violation of due process for seized cars.
HELD: Plaintiff is barred from bringing 1983 action. One suit precludes a second
where the parties and the cause of action are identical. The City was a Defendant in
each replevin action; Frier could have urged constitutional grounds as reasons for
replevin.
Concurring: Claim preclusion doesnt apply because there were two separate causes of
action, each requiring separate facts. Replevin: must show seizure. Due process: must
show inadequacy of procedures w/seizures, not the seizure itself. Plaintiff loses b/c he
could have recovered his car by paying $10 and the other without paying any fee. This
constituted adequate post-deprivation process.
EXCEPTION TO SAME PARTY RULE: "IN PRIVITY"
It is possible for someone not formally named in a party to be so closely connected to the suit that
it is appropriate to treat her as if she were named. The party bound is described as "in privity"
with the party to the first suit. (E.g. Succession of interest in property)
In General, there is no duty to intervene if you know of litigation. (See Searle)
If the parties wanted to be sure to end the matters forever, they have the duty to bring others
in.
Searle Brothers v. SearlePrivity of Parties: Representation
Case 1: divorce and W gets property. Case 2: H's sons sue W for property. HELD: Sons
were not a party or privy to case 1: claim preclusion doesn't apply even though they testified
in the case. H was acting as individual and it was impossible for them to intervene. 4 tests:
Was the issue decided in the prior adjudication identical with the one presented
in this action?
Was there a final judgment on the merits?

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Was the party against whom the plea is asserted a party or in privity with a party
to the prior adjudication?
Was the issue in the first case competently, fully, and fairly litigated

2. FINAL JUDGMENT:
(See Appeals)
What constitutes a final judgment?
- YES Final: final even though appeal is pending; full jury trial; directed verdict;
summary judgment; 12(b)(6) dismissal; dismissal for failure to prosecute; Rule 11
Sanction
- NOT Final: FRCP 41(b): lack of jurisdiction, improper venue, failure to join party

3. ON THE MERITS:
"On the merits:" Something more than nothing: pleading, trial, or something else.
o

E.g. if Plaintiff brings suit then disappears. Defendant gets a judgment on the grounds of
involuntary dismissal. Plaintiff can't bring suit again.
What's the point of having the "involuntary dismissal" device if Plaintiff can just
sue again afterwards?
Same with Rule 37 dismissal sanctions.

Gargallo v. MerrillMust have Subject Matter Jurisdiction To have Preclusive Effects

Case I: Merrill v. Gargallo: Gargallo counterclaimed for federal securities fraud claim which was dismissed
for failure to comply with discovery requests (FRCP 37). Case II: Gargallo v. Merrill: same as
counterclaim.
HELD: preclusion doesn't apply even though same parties and transaction. Determining whether preclusion
applies under Ohio Law requires a federal court to give a state court judgment the same preclusive effect
such judgment would have in a state court. So, if the state court has subject matter jurisdiction over the
claim and is barred from hearing it, then preclusion. But in this case, the state courts had no subject matter
jurisdiction over the federal securities fraud claim.

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COLLATERAL ESTOPPELISSUE PRECLUSION

TESTS FOR DETERMINING PRECLUSION:
SAME EVIDENCE TEST:

Whether the issue requires the party to prove the same evidence as in another claim.
o E.g. See Illinois Central v. Parks
Loss of consortium claim: wife's broken bones
Damages claim: his own broken bones

DIFFERENCE BETWEEN CLAIM AND ISSUE PRECLUSION:

Claim preclusion can preclude claims that were never brought up.
**Issue preclusion applies only to actually litigated issues.**
o E.g. If RR never raised J's contributory negligence in case 1, then could J preclude
RR from raising it in case 2 because they had the opportunity of raising it before?
No

EXCEPTION

Dismissal because of discovery abuse:

o An issue that would have been litigated is now litigable in a second case
Ordinarily, you can't have issue preclusion because the issue wasn't
litigated
Sammy Daily: it happens too much: issue preclusion applies.
The "actual litigation" requirement may be satisfied by
substantial participation in litigation in which a party is afforded
a reasonable opportunity to defend himself on the merits but
chooses not to.
This case is a departure from the general rule though.

PRECLUDE WHEN (CONDITIONS):

-

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 between the parties, whether on the same or a
different claim. The 2 issues must be identical. (Can be from a different claim though).
-

To understand issue preclusion, you have to look at not only its substantive contours but the
procedural conditions under which it was determined (e.g. resolving an issue civilly doesn't
necessarily resolve it criminally: burden of proof is much higher in a criminal case)

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ACTUALLY LITIGATED AND DETERMINED:

Illinois Central Gulf Railroad v. ParksMust know the basis of the verdict
Jessie and Bertha crashed with Defendants train. Case 1= J+B v. RR (B wins $, J loses on consortium
claim). Case 2= J v. RR for his injuries. (RR argues that issue preclusion applies because the general
verdict in case 1 against J meant that J was contributorily negligent.) HELD: issue preclusion does NOT
apply: the general verdict against J makes it difficult to determine why he lost: it could mean 1. he
sustained no damages, or 2. he was contributorily negligent. The RR (claiming issue preclusion) has the
burden of proving which one the jury relied on in deciding the case. Issue preclusion on RR's negligence is
granted because it was already litigated and determined in case 1.
NOTE: Sometimes it is possible to infer what the jury relied on in reaching its verdict.

ESSENTIAL TO THE JUDGMENT:

The issue in case 1 must be consistent w/the judgment for issue preclusion to apply to case 2
o 1st Restatement: when alternative grounds for judgment exist, both should be
precluded
o 2nd Restatement: when alternative grounds for judgment exist, neither should be
precluded.

MUTUALITY:
Case 1 and 2 involve the same parties.

This continues to be a requirement for claim preclusion but recently, courts have abandoned
this requirement for issue preclusion.

Nonmutual Collateral Estoppel:

OFFENSIVE USE:
multiple P's and one D; it is OK when
P could not join in previous action and is seeking to estop D from relitigating. (But there is
no obligation to sue when another does).
It cannot be unfair to Defendant: if case 1 involved small damages, there might not have
been an incentive to fully litigate.
D must have had every incentive to litigate case 1 fully + vigorously
Judgment in case 1 must not have been inconsistent w/any previous decision.
Protects against the case where P's 1-25 lose, 26 wins, and Ps 27-50 try to use 26 to
preclude. (If case 1 were wrong, it doesn't matter).
o If there is only 1 case, then you can use it even if the judgment were wrong.
Rationale: the "victim" of issue preclusion had a full and fair opportunity to litigate the matter
in the first suit.
Parklane Hosiery Co. v. ShoreOffensive Collateral Estoppel
Case 1: SEC v. Parklane for securities fraud. (The SEC won in a bench trial).
Case 2: Shore v. Parklane: (Shore: use case 1 to preclude Parklane from arguing against fraud.)
The trial courts have discretion in determining when collateral estoppel should apply. SECs allegations
were serious, and the judgment was not inconsistent with any previous decision. So Parklane had a full
and fair opportunity to litigate their claims in the SEC action. Question remains whether collateral
estoppel would violate their 7th amendment right to a jury trial. Nothing in the amendment dictates that a
different result than preclusion through collateral estoppel.

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DEFENSIVE USE:
multiple D's and one P
A party who has never had the opportunity to litigate an issue cannot be precluded from
doing so.
o Plaintiff cannot preclude a second Defendant from litigating an issue on the basis of a
judgment in case 1.
Asymmetry: if Defendant loses, it will be saddled by that loss in future cases, but if it wins, it
still has to litigate the issue.
Incentives created are in the direction of efficiency.
The party against whom issue preclusion is being applied must have been a party (or privy) to
case 1
o E.g. Case 1: W v. RR; Case 2: H v. RR. H can use findings of case 1 against RR in
case 2 but RR cannot use findings of case 1 against H. (asymmetrical)
Issue preclusion is not permitted against the US government

PRECLUSION AND PUBLIC LAW LITIGATION:

Martin v. WilksMust be a party to have your rights adjudicated
Case 1: Black firefighters v. City (Title VII violationsettle on consent decree to hire and promote more
blacks). Case 2 = White firefighters v. City for discrimination b/c of consent decree. HELD: case 1 does
not preclude case 2. Voluntary settlement between employer and one group of employees cannot settle the
conflicting claims of another group of employees who did not join the agreement. No duty to intervene. It
is the duty of P (blacks) to bring in any people who may later bring suit. Should use FRCP 19(a)
compulsory joinder.

50