Civil Procedure Outline

I.

An Introduction to Civil Procedure

A. Background of Civil Procedure

Sources guiding civil procedure:

o Constitution
o Codes and Rules (Fed. Rules of Civil Procedure at federal level)
B. Elements and History of Due Process
5th Amendment: No person should be denied life, liberty, or property
without due process of law
o Applies to federal government
14th Amendment: Due process clause that applies to states
Fundamentals of due process:
o Notice
o An opportunity to be heard on issue to present your side of the
story
Goldberg v. Kelly
U.S. Supreme Court (1970)
Welfare recipients form a class action lawsuit claiming violation of
due process on grounds that NYC officials terminated or were about to
terminate their welfare benefits without a fair hearing prior to
termination
Are welfare benefits property rights?
o In Goldberg, defendants conceded the point and said that for
purpose of case, due process applies
o Today, Supreme Court does not hold that Welfare benefits are
Constitutional property rights
Goldberg outlines basic law with regard to what process is due:
o Balance of interests of individuals and interests of government
o If benefits are terminated wrongly, recipients will lose a lot and
wont have means to survive; state has interest in protecting
dignity of people provides benefits vs. States financial benefits
for not giving more process (judicial economy)
o Court found that the loss plaintiffs will suffer is greater than the
loss of fiscal resources the govt. will suffer by paying benefits to
people who may not deserve them.
Why is evidentiary hearing so important?
o Provides a chance to present oral argument because people may
not be able to craft a meaningful written statement (Due process
requires providing a translator if hearing is to be meaningful)
o Chance for cross-examination of witnesses, councel if recipients so
desire (but must provide council themselves)

Dissent
o People in need of aid will not be helped because government will
not put people on aid until they have made an exhaustive attempt
to determine eligibility
o Not concerned with balancing issue
Where Court stands on due process today:
o Post 9-11 statute allows government to detain enemy combatants
o Amount of process due before being held decided by weight of
private interest of liberty against governments asserted interest,
which includes burden on government in providing more process

II.

Remedies and Stakes

Before decision is made to use civil process, it must be decided what
remedies/relief can be attained through system
A. Provisional relief
Equitable remedies: Can be attained before any decision is made on
claim (no juries for equitable claims)
Invoked for two reasons:
o To secure a judgment (make sure plaintiff gets compensation
awarded and could put pressure on someone to settle)
o To stop someone from continuing activity or to preserve the
status quo
Rule 65 (Objective of maintaining status quo)
o Preliminary Injunction
Notice to other side and hearing applies unless there is
immediate irreparable harm
In ruling on preliminary injunction, court will consider:
If injunction will harm other side
If its in best public interest
How likely P is to succeed on claims
Irreparable harm suffered by P if there isnt a
preliminary injunction
o Temporary Restraining Order
Filed at same time that preliminary injunction is filed
Has a lifespan of no more than 10 days unless it is extended
Notice and hearing applies unless P shows immediate and
irreparable injury that will occur if wait for hearing
P needs to make at least an informal attempt to notice D
Rule 64: Seizure of Person or Property (Securing Judgment)
o If there is a suit with a possible settlement but P is worried that
property will be gone by time she settles/wins suit, she can get:
o Attachment: real property is seized
Writ of attachment: written order on land that says that if
someone buys land, it is not unburdened
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o Sequestration: Public official takes property to neutral location

o Garnishment: 3rd party has to turn over Ds property in his
possession (often wages)
Fuentes v. Shevins (U.S. 1972): Due Process and Seizure of Property
o P filed suit claiming deprivation of due process under 14th
Amendment after her goods (gas stove, stereo) were repossessed
by sheriff when store obtained writ of replevin, saying P hadnt
made final payments. Goods were repossessed before P received
summons to answer stores complaint.
o Judgment based on private interest to P and interest of store
o Issue: Does P have right to be heard before Statue authorizes its
agents to seize property in possession of another upon request for
replevin?
P had possessor interest in propertyhad paid substantial
amount for it
Notice and hearing requirements of due process apply even
if seizure is temporary (short deprivation still a deprivation)
and even if property taken is not necessary for living
(stereo, stove)
When property taken under replevin, there is a high risk of
error because writ of replevin is issued on word of one
party so post-seizure hearing is not good enough (except in
emergency such as bank failure, wartime)
*Provisional relief in Carpenter case:
o A TRO and preliminary injunction so Randall Dee cant sell house
o Preliminary injunction ordering Jeep not to be altered
o A sequestration of Jeep to put it under supervision of third party
*Provisional relief in Cleveland case
o preliminary injunction to stop hiring process
B. Final Relief
Granted after decision is made on claim
These can be either equitable or legal remedies (there are juries to
determine legal remedies)
Equitable final relief
o Granted when money damages wont be enough to compensate for
losses
o Permanent injunction
o Declarative relief: parties have declaration of their rights
Legal Relief
o Monetary damages
Punitive
Compensatory

Nominal: (unusual) when someones rights have been

violated but they have not suffered any right that can have
monetary value attached to it
*Final Relief in Carpenter case:
o Compensatory damages
lost income, lost household services, etc.
o Punitive damages
Must show recklessness, willful or wanton misconduct
o Judgment proof defendant:
D doesnt have any money or assets so P cant get damages
from him
*Final relief in Cleveland case:
o Final equitable relief
If final goal is a permanent injunction to restructure hiring
process, Ps must show that there is no adequate legal
remedy (money damages not enough for the Ds)
o Compensatory
back pay
C. Contempt: When a party or lawyer disobeys a court order
A party or lawyer can be held in contempt if he violates a court order
or rule
Parties sometime deliberately disobey a statue in order to
protest/challenge a rule they deem to be unjust
Collateral Bar Rule (Enforced in Walker v. Birmingham)
o Procedural rule requiring obedience to a court order even if it is
later found to be unconstitutional
o You cannot disobey a court order and then raise unconstitutionality
of the order as a defense. Instead, you must try to directly
challenge order first
o Rule does not apply if court that issues injunction does not have
jurisdiction over the parties or if injunction is so obviously invalid
on its face
o In enforcing collateral bar rule, was Supreme Court collaborating
with injustice in Walker v. Birmingham?
o When is the collateral bar rule applied?
o How can someone challenge injunction without running into
collateral bar rule?

III.
A.

Pleadings and Simple Joinder

Claims, Causes of Action, Elements, and Burdens of Proof
Plaintiffs have three obligations to win civil litigation:
o Must meet burden of pleading: In fed. court, they must state a
claim for which relief can be granted (Cause of action)

o Must meet burden or production (sufficient evidence to permit a

reasonable person to find that each element of claim is true)
o Must meet a burden of persuasion by persuading fact finder that
each element is true by a preponderance of the evidence.
If P does not meet burden of persuasion, D can do nothing
and still win
When P has proved prima facie case, burden of proof shifts
to D, who must show why P isnt correct
B.

Pleadings
Timing
o Rule 12(a) deals with timing issues of complaints
Rule 8(a)
o States what has to be in the complaint
o Short and plain statement showing that the P is entitled to relief
o Short and plain statement on the grounds upon which the courts
jurisdiction depends
o Demand for judgment for the relief which the pleader seeks
o Form 9 as an example (does not provide elements of claim, date
and time of accident so D knows what complaint is referring to)
o Policy behind form of pleadings:
If too much specificity required, some meritorious claims
will not be brought or will be terminated for failure to meet
standard
If too little is required, suits without merit will be allowed
to be brought
Rule 8(e)2
o P may plead two or more claims, regardless of consistency
Rule 9(b)
o Special matters must be pleaded with particularity if they are to be
raised at trial:
Circumstances giving rise to any allegations of fraud or
mistake, etc. (others listed)
Rule 9(g)
o When items of special damage are claimed, they should be stated
o Items of general damage (suffering, lost income, hospital bills,
etc.) need not be stated with specific dollar amount
Rule 11
o Requires a reasonable investigation of the facts before allegations
Rule 12(b)6 Motion
o Failure to state a claim upon which relief can be granted
o P must state only the facts, not the legal theory she is relying on,
but if D cannot respond because of an absence of a legal theory,
then the court can grant with leave to amend
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C.

o When reviewing complaint, courts accept Ps statement as true,

read allegations in light most favorable to P and then decide if P
has stated a claim upon which P can gain relief
o Courts also decide if there is sufficient notice to D so that D can
reasonably begin discovery
o Often when Ps case is dismissed for failing to state a claim, court
will give P another opportunity to file an amended complaint
o Conley v. Gibson (U.S. 1957)
Complaint should not be dismissed unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.
Example of how liberal the rules of pleading are under rule
8(a)
Details are not necessary (short and plain statement that
will give D fair notice of what Ps claim is and the grounds
on which it rests
Fair notice: Enough factual specificity so that D can
begin discovery in a way that will help develop facts
o Four reasons for granting 12(b)6 motion:
Complaint is so sparse that it doesnt allege cause of action
so that D would have to guess what sort of claim it was. (If
cause of action could be reasonably inferred, P would
probably survive motion)
Even if everything that P says is true, no legally cognizable
claim exists
Cause of action exists, but complaint does not state even
rudimentary information to suggest that P may have cause
of action (he was negligent to me)
Some inferences are ok, but too many is problematic
Complaint is detailed but the facts alleged do not
correspond to or contradict cause of action
Strategic considerations: Detailed complaint could
show that P cannot prove elements of case
Courts do, however, allow for inconsistencies in
pleadings because of the possibility that a factfinder
could be convinced of one theory but not another
o Policy: Courts deal with cases on merits and do not get rid of
cases based on mistakes in pleadings (if complaint says breach of
contract rather than negligence, this should not be fatal to case as
long as nature of claim provides enough info to D to show basis of
claim)
Other Preliminary Motions
Rule 12(e): Motion for a more definite statement
o Applicable if complaint is so vague or ambiguous that D cannot
reasonably be required to form response
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o Must include description of defects of complaint and details

required
o Cannot be brought after answering
o Courts have tried to prevent 12(e) motions from being used as a
substitute of discovery
12(f): Motion to Strike
o Asks court to delete from pleading any insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter
o can use 12(f) when P has listed several causes of action and one of
them fails to state a claim upon which relief can be granted on
ground that it is immaterial (though normally 12(b)6 is used).
12(b) defenses to validity of complaint/motions to dismiss:
o 12(b)1: lack of jurisdiction over the subject matter
o 12(b)2: lack of jurisdiction over the person
o 12(b)3: improper venue
o 12(b)4: insufficiency of process
o 12(b)5: insufficiency of service of process
o 12(b)6: failure to state a claim upon which relief may be granted
o 12(b)7: failure to join a necessary party under rule 19
P might do this if indispensable party would ruin
jurisdiction
o These motions may be made either in the answer or by separate
motion
o These motions also relevant to counterclaims, codefendant, cross
claim, etc.
Losing ones privilege to bring 12(b) motionsConsolidation of
Defenses:
o 12(g): party must consolidate motions (if they are available at that
time) except for situations in 12(h)(2)
If 12(b) filed prior to answer, need to consolidate defenses,
including any plausible less-favored defenses in motion at
the same time or else risk losing defense
If answer without bringing 12b motions, include all
plausible defenses in answer
o 12(h)1: privileges lost if not included with other 12(b) motions or
in responsive pleading or amendment:
personal jurisdiction
improper venue
insufficiency of process
insufficiency of service of process
Example: Cannot file claim for lack of jurisdiction and, if
its not granted, file a motion to dismiss for improper venue
that was waived when it wasnt included with first
motion)

D.

o 12(h)2: Favored defenses not waived under 12(h)1:

failure to state a claim upon which relief can be granted
failure to join indispensable party
objection of failure to state a legal defense to a claim
These favored defenses can even be brought up at trial
Policy: If, for instance, 12(b)6 was not brought but it is
clear that it would have been granted, the right is not
waived, or else the next trial procedures would be
useless (efficiency, not spending money unnecessarily,
etc.)
D sometimes refrains from including favored defenses
to avoid pointing out weakness in case, hoping to raise
12(b)6 at directed verdict stage when it would be too
late for P to cure omission
o 12(h)3: Special category for subject matter jurisdiction
Never waived and the court will dismiss whenever it is
realized
o 12(d): Defenses should be heard before trial unless court says
otherwise
o 12(c): Rarely used, but could in such a situation:
Statute of limitations raised as a defense and they are up,
but D admits allegations and raises a nonapplicable
defense P wins
Answers
Filed after motion to dismiss is denied, within 20 days from when
party is served, unless time is modified or if party responds to a
complaint with a motion
Answers include:
o Admissions and denials to allegations of Ps complaint
8b: requires admission or denial of each allegation, except
when a party is without knowledge or information
sufficient to form a belief as to the truth of an averment.
Some courts have restricted the use of this language,
preventing parties from using it as an excuse to avoid
making a reasonable inquiry prior to making an
admission or denial
Party can deny specific averments, paragraphs, or entire
complaint
8(d): When responsive pleading is required, averments not
denied are considered admitted (one exception is to amount
of damages)
When responsive pleading is not required, allegations not
denied are taken as denied or avoided

Purpose of answer: to narrow the issues to see what is still

in dispute
Admissions: once admitted, it is taken to be true for the rest
of the case (jury must find admissions as true) unless
request to amend admission is granted
strategy of P to ask very specific facts to make it harder for
D to state an unconditional denial
Denials: There are penalties for denying all of allegation
(blanketed denial) when party could admit portion of it
Court may allow denial to something that is true if D
objects to how it is worded
Absent actual knowledge, information and belief can be
sufficient to deny or admit: Based on information and
belief, I deny
A party must exert reasonable effort to obtain knowledge of
a fact, if not, answer may be deemed admission
(Greenbaumpostal worker slip and fall case)
o Affirmative defenses: 8(c)
Must be pleaded by D under pleading rules
D is essential saying Even if you prove your cause of
action, I win because of another rule or exception. (Statue
of limitations, contributory negligence, etc)
D has burden of pleading, production, and persuasion as to
the elements of an affirmative defense
There are some cases where some burden placed on D
even if its not an affirmative defense:
o burden of production: D has to prove it wasnt
negligent in case of coat at drycleaner
o burden of pleading: P has burden of pleading, but D
must prove non existence of an element as an
affirmative defense
Rule 8(c) lists nineteen affirmative defenses
Some courts have ruled that affirmative defenses not
waived by failing to raise them in an answer, but it is better
to include all potential defenses in an answer
o 12(b) defenses
o Counterclaims and cross-claims and Rule 14 Impleader
After the answer:
o 12(c) judgment on the pleadings
Accomplishes the same objective as 12(b)6, just after the
answer in cases where, for example, affirmative defense is
shown, such as statute of limitations
Amendments: Rule 15
Rule 15(a):

E.

Plaintiff can amend its complaint without leave of court so long as

it occurs before answer is served (if 12(b) motion made does not
matter)
o If no responsive pleading is permitted then P can amend complaint
once within 20 days after it is served
o Answer: Can be amended once within 20 days after D has served it
If answer contains counterclaim, answer may be amended
until P has served reply
o Amending by leave of court
Amendment allowed freely given when justice so
requires. Limits:
No unreasonable delay
No prejudice to other party
o If there is delay with no harm/prejudice, then this
cannot be used as an argument
New issue not raised in bad faith
New issue not futile
Rule 15(c): Relation Back:
o 15(c)1: Allowed when statute of limitations havent expired
o 15(c)2: Relation back allowed if claim or defense asserted in
pleading arose out of the conduct, transaction, or occurrence set
forth in original pleading. Factors to consider:
Is there a logical connection between original and amended
complaint (did one thing lead to another)?
Would there be overlapping evidence, witnesses?
Once these questions answered, look at policy behind
statute of limitations (protecting Ds that would be
prejudiced from having to defend years later, sense of
repose)would case be dismissed on mere technicality or
because of prejudice to D?
o 15(c)3: Relation back of parties if amendment changes parties
15(c)2 and must be satisfied
Party must have received sufficient notice within 120 days
of filing of original complaint:
Party must receive sufficient notice so he is not
prejudiced in maintaining defense. Constructive notice
possible: This could be through a shared attorney,
identity of interest (job, for example) (Singletary v.
Penn. Department of Corrections) and
Party knew or should have known that but for a
mistake about the proper party, the action would have
been brought against him/her
o

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o Unknown D (John Doe) is questionableThere

may be cases where P doesnt know identity of P
until discovery
F.

Sanctions: Rule 11
Policy:
o Encourages attorneys to consider merit before filing pleadings,
motions, etc. to limit frivolous claims that may be allowed into
court because of liberal rules
o 1983 amendments required mandatory monetary sanctions upon
attorneys, but this created stifling effect and some meritorious
claims werent filed for fear of rule 11 litigation
o 1993 amendments: safe harbor provision was added, granting of
attorney fees was severely limited
Rule 11 is applicable to every pleading, written motion (to dismiss,
answer, complaint, etc), but not applicable to discovery (separate rule
governs discovery)
Rule 11 motions can be filed against rule 11 motions there is a lot
of litigation surrounding rule 11
There is a continuing obligation to comply with Rule 11 (if P finds in
discovery that something isnt true, P can no longer insist on it)
11(b)
By signing pleading, attorney/party (absent attorney) is
certifying nonrivolous argument that party has evidentiary
support or is willing to tell D that it doesnt have the
support yet
Lawyer certifying that all of this knowledge is after
reasonable inquiry
Sanctions of Rule 11 should be what is necessary to deter party from
conduct
If court decides that $ is necessary for deterrence, $ is
usually paid to court to prevent incentive to file rule 11 to
get $
11(c)
Court may impose sanctions upon attorneys, law firms, or
parties
11(c)(1)(a) safe harbor provision:
Must serve opposing party with Rule 11 21 days before
filing motion with court so party can correct violation
o 11(c)(1)(b)
On courts own initiative, court makes an attorney give
reason for seemingly frivolous claim
Safe harbor provision does not apply

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G.

Simple Joinder: Rules 18, 20, 21

Rule 18: Kind of joinder Ps can assert at outset of suit
o Party can join unlimited number of claims against other party
(piling on)
Rule 20: Who can be joined as Ps and who can be joined as Ds
o 20(a): In order for a group of Ps/Ds to join together, the Ps/Ds
must be asserting claim that comes out of the same transaction,
occurrence/series of transactions or occurrences and one
question of law or fact that is common to all the Ps/Ds seeking to
join together
o Transactional/Occurrence:
The same kind of event is not enough: events must be
connected
If separate: alleging systematic pattern of misconduct
o Question of law or fact:
Question of law might have to more specific than broad
allegation such as negligence (Kedra v. City of
Philadelphia)
o Policy: efficiency and judicial economy
o Look to see if there is a lot of overlapping evidence in both cases
and if issues of cases are the same
o Ex: A is an employee of a delivery service company, C. A gets in
accident with B because of Bs negligence. A sues C for personal
injuries. C sues B for damage to truck. To determine if simple
joinder is allowed, must ask:
1. Did Bs negligence cause injury and damage to truck?
2. Was the accident the same occurrence out of which both
claims arose?
Rule 20(b): Separate Trials
o At time of trial, court can order separate trial to prevent
embarrassment, delay, prejudice, or expense, though judicial
economy can outweigh small prejudice
o Allows court to say that joinder is proper under 20(a) but there is
still room to protect Ds
Rule 21: Motion challenging joinder (Severence)
o Misjoinder is not grounds for dismissalinstead, parties may be
dropped or added by court or by motion
o Any claim may be severed and proceeded with separately
o Difference between separate trials and severance: lawsuit is same
with separate trials (discover together)
Rule 42: Consolidation of claims and separate trials

H.

Counterclaims and Cross-Claims: Rule 13

Counterclaims are either Permissive or Compulsory:

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I.

o Permissive counterclaim 13(b):

Not arising out of the same transaction/occurrence as
original claim
Can be filed in a subsequent claimdoes not have to be
filed in original lawsuit
o Compulsory Counterclaim 13(a):
If it arises out of the same transaction or occurrence as
original claim
Must be brought in original lawsuit and cannot be brought
in a subsequent one
Test for determining if counterclaim is permissive or
compulsory (Banque Indosuez)
Issues of fact and law largely the same?
Would res judicata bar a subsequent suit?
Will substantially the same evidence support/refute
both claims?
Is there a logical relationship between claim and
counterclaim?
Exceptions: When Ds claim requires a party for just
adjudication that cannot be made for personal
jurisdiction reasons or claims by D that are rem or quasi
in rem providing that D has no other counterclaim
Cross-Claims
o Claims against co-parties (indemnification)
o Cross-claims are always permissive (dont lose if you dont bring it
in original suit)
o 13(g): Can sue co-party if claim arises out of same
transaction/occurrence as the original claim
o 13(h) Joinder of a party to assert cross-claim/counterclaim
Rules of 19 and 20 apply
Can serve same function as impleader, but counterclaim or
cross-claim must already exist

Third-Party Practice: Rule 14 Impleader

Rule 14 allows D to implead a person not already a party to the suit
who is or may be liable to the third party P for all or part of the Ps
claim against the third party D (aka derivative liability)
o Original D becomes a third-party P impleading a third-party D
In order for D to implead a new party, three conditions must be met:
o 1. Impleader can only be used in order to bring in someone not
already a party (difference between 14 and 13(h)
o 2. D has to have a claim against the new party it seeks to implead
(D has to have a theory of liability against 3rd party to implead her,

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though D can assert that its 3rd partys fault without impleading
her, subpoenaing 3rd party to testify as a non-party)
o 3. For D to have a valid impleader against 3rd party, liability
allegation must be for all or part of Ps claim against D.
If D has a valid claim against 3rd party regardless of
outcome of P v. D, then it is not a valid impleader
Impleader proper even if Ds liability is not established (is or may be
liable)
Courts balance benefits derived from impleader against potential
prejudice to P and 3rd party D.
o Prejudice to P due to additional discovery may be outweighed by
benefits of more efficient litigation gained by impleader.
o delay is taken into account
Policy: to promote efficiency by eliminating necessity for D to bring
separate action against 3rd party; enforces consistency (separate trials
could result in different results)
How Impleader works:
o If more than 10 days have passed after D has filed answer, D has to
make motion to implead
o Rule 8(a) pleading requirements apply to Rule 14
o 3rd party D should raise 12b defenses against 3rd party P by answer
or motion
o 3rd party D may assert against P any defenses which the 3rd party P
has asserting against P
o 3rd party D may, but does not have to, assert any claims arising out
of same transaction or occurrence against P
o Original P may assert a claim against 3rd party D if claims is out of
the same transaction or occurrence as subject matter of original
claim
Possible sources of derivative liability that would support use of 14(a)
impleader:
o Contribution: Joint tortfeasors (there has to be a statute allowing
contribution)
o Indemnification: When there is a certain kind of relationship
between D and third party that creates this right (Ex. Employee
commits torts that employer is liable for employer brings in
employee; general contractor/sub-contractor)
o Subrogation: One person assumes the legal rights of another.
When an insurance company pays out P and then, assuming
Ps rights, sues 3rd party that caused injury and made
insurance company liable to P
Impleader vs. Joiner under 13(h)

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IV.

o To use 13(h), there must exist a counterclaim or cross-claim. If a

counterclaim or cross-claim is not being asserted, rule 14 must be
used
Miscellaneous info about Rule 14:
o Even if there has already been a settlement between P and D, D
can seek to recover from 3rd party (Rule 3(a))

Discovery
Function: To get facts out before trial
Policy behind expanded discovery:
o Elimination of surprise/trial by ambush so cases are tried on their
merits
o Allows for both sides to access strength and weaknesses of their
case
o Narrows issues to be disputed at trial, reducing drain of resources
on court
o Allows for a higher probability of informed settlement instead of
trial
o Increases effectiveness of summary judgment
o Preservation of testimony in cases where it becomes unavailable
(through death, for example)
o Balance to liberal pleading rules
Tension of fairness and adversary system:
o Duty of attorney to be a zealous advocate of clientthis can
conflict with morally responsible behavior
o Discovery has been restrained in past two decades because of its
reputation for high cost and abuse
Informal Discovery
o Occurs before filing compliant
o Refers to any form of extrajudicial research or inquiry that
attempts to obtain facts relevant to case (internet, public records,
etc)
Timing (30 days to respond)??
Rule 26: Provisions governing discovery; Duty of disclosure
o Rule 26(b)(1): A party may ask for discovery for any information
that:
Is relevant to the claim or defense of any party
This is a broad allowance because it includes info that
appears reasonably calculated to lead to the discovery
of admissible evidence.
Is not unreasonably cumulative or burdensome
Court may limit frequency of discovery when
information sought is unreasonably cumulative or

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o
o

duplicative or is obtainable from some other source that

is more convenient.
Is not privileged
Most frequently invoked privilege is attorney-client
Parties will often fight about what constitutes privileged
info
For good cause, the court may order discovery of any
matter relevant to the subject matter involved in the
action.
This rule is an anti-fishing expedition attempt (using
discovery to find other claims, though 11(b)(3) allows for
claims likely to have evidentiary support (evidence that
rules dont always work in harmony with each other)
Rule 26(b)(2):
Limits to discovery that might otherwise be admissible
under 26(b)(1)
What is duplicative/cumulative?
Party might say that additional info is needed to
persuade the jury
Rule 26(a)(1): Before discovery request, party must provide:
Name, address, telephone numbers of individuals who are
likely to have discoverable info that the disclosing party
may use to support its claims or defenses
Copy of description of all documents, data compilations,
and tangible things that are in possession, custody or
control of party and that disclosing party may use to
supports it claims or defenses
Computation of damages claimed by disclosing party with
supporting materials
Copies of any insurance agreement under which insurance
group may be liable to satisfy part of damages
This rule is tied to Rule 26(f) conferencing rule, which says
parties must meet to see how discovery is going to proceed
and how material is going to be revealed under 26(a)(1),
and also tied to Rule 16 (timeline: 26(f).26(a)(1).16(b)
Rule 26(a)(2)(c):
Requires certain disclosures of expert testimonies not later
than 90 days before trial date
Requires disclosures of identities of witnesses and
documents to be used at trial at least 30 days before trial
Rule 26(a)(3): Pretrial Disclosures
At least 30 days before trial date, parties must provide
information about witnesses and evidence
Rule 26(a)(5): Outlines formal techniques by which parties can
obtain discovery
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o Rule 26(e): There is a continuing duty to supplement discovery

responses if party finds out that she provided info that was
incomplete or incorrect
Applies to pre-discovery disclosure, and disclosure
regarding experts, interrogatories, request for production,
admissions
o Rule 26(g): Establishes certification process unique to discovery
(like Rule 11)
Work Product Doctrine (Hickman v. Taylor)
o In Hickman, (4 men drowned when tugboat towing railroad car
sank) issue was whether discovery may be used to inquire into
materials collected by other partys counsel in course of preparing
for litigation (Ps attorneys sought to use discovery to obtain
tugboat attorneys statements from survivors and witnesses and
interrogatories)
o Policy for protecting work product of attorney:
Oral testimonies: issues of inaccuracy, untrustworthiness,
protecting attorneys thought process, evaluation of
evidence which could appear in transcription
Written statements: not privileged if witness no longer
available. Idea that other party could obtain same info from
witness.
Attorney might be less likely to write stuff down if his
thought process were discoverable, causing trial prep. to
suffer
o Must show these factors for trial prep. material not to be privileged
(Rule 26(b)(3)):
That requested material is material that is prepared in
anticipation of litigation or trial.
That there is a substantial need for requested material
There is showing that material cannot be obtained through
some easier means
When ordering discovery of such material, the court shall
protect against disclosure of mental impressions,
conclusions, opinions, or legal theories of attorney or other
representative of a party
Rule applies to documents and tangible things (not
complete adoption of doctrine in Hickman)
o 26(b)(5): Claims of privilege or protection of trial materials
Party has to make claim of privilege directly
Challenging a discovery request:
o Motion for protective order 26(c): The court in the district in
which the deposition is to be taken may make any order which
justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense (see
17

list).
o Objection to the discovery request under 26(b)(1) that it is
cumulative etc. etc. and this done through 34(b) (if the request is
for a written document) written response within 30 days of the
request where you state your objections.
o Party seeking discovery can then file a 37(a)(1-3) motion to
compel discovery.
Requires conference so parties can try to figure it out
amongst themselves before involving judge and satellite
litigation
Discovery Techniques:
o Depositions: Rules 27-32
Used to question potential nonparty and party witnesses
under oath about their knowledge of underlying action
despondent given opportunity to review transcript and
make technical corrections
If despondent is a non-party, moving party usually has to
subpoena him
Parties allowed to attend any deposition by other party
despondent must be given notice in writing of deposition
Objections: parties may object to questions during
deposition, but despondent has to answer all questions
unless objection was to form of question or an objection to
question that would reveal privileged information.
Answers to objected questions remain subject to objection
Anything recorded in deposition is available for use at trial
(can be used if witness unavailable, to impeach witness
testimony
There is a limit to number of depositions that may be taken
until permission must be asked to court
When depositions are not taken:
If attorney doesnt want opposing party to know of her
theories
If she wants to wait to trial to confront witness
Positive aspects:
Attorneys can follow up on answers, take deposition in
new direction
Can request parties to bring documents
Negative aspects:
Expense
o Written Interrogatories: Rule 33
Written questions submitted to party that must be answered
in writing, under oath (limit to 25 until permission from
court required)

18

Positive aspects:
Useful for obtaining detailed and noncontroversial info
(names, addresses, dates, etc)
Available for use at trial
Negative aspects:
Answers are almost always drafted by lawyer and are
therefore crafted to contain as little info as possible
o Production of Documents and Things: Rule 34
Party can request other party to produce documents and
things and may inspect and copy documents before
returning them
Document and things: broad term meaning any written,
recorded, or digitalized info, inspection of real or personal
property
Can be directed to a nonparty with a subpoena and a
subpoena duchas tackem (subpoena to bring documents)
Rule 34(b): Requires request be made with reasonable
particularity
Negative aspect:
Can be difficult to find balance between over and under
inclusiveness
o Physical and Mental Examinations: Rule 35
May be requested when persons condition is in
controversy and person to be examined is given proper
notice
Court approval required and good cause showing (only
discovery mechanism requiring court order)
o Request for Admissions: Rule 36
Party may serve on another party within scope of discovery
One party poses a question in form of a statement, which
other party must admit or deny
Once admitted, fact must be taken as true throughout trial
unless court permits withdrawal or amendment
Narrows issues at trial so it will be clear what issues are
contested and what issues parties agree on
No limit on number of requests for admissions a party can
make unless local rules say otherwise
o Experts: Parties can prepare and groom their experts ( criticism
for biased opinions)
Discovery Planning:
o 1. Learn the law: To figure out what facts need to be established in
order to prove/rebut claim/defense
o 2. Review the factual information already at your disposal

19

Interview client, reviewing documents client has access to,

public sources of info
Identify source of discoverable information
Nonparties that might have info that could
bolster/undermine positions
Strategic considerations:
Early depositions of key witness could be useful in
evaluating rest of discovery plan; could lead to
settlement
Consider how best to obtain info you seek
identifying methods of discovery
Determine whether expert testimony is likely
If opposing party will be using expert testimony, plan on
serving set of interrogatories on their expert
Review the cases discovery need periodically

o 3.

o 4.
o 5.
o 6.
V.

Judgment as a Matter of Law--Summary Judgment

Timing: typically after discovery and before trial
Proving no genuine issue of material fact
Judge is trying to predict what evidence will be at trial, based on
pleadings, affidavits, discovery
Usually made by defendant, who must show lack of evidence as to one
of the elements (easier to prove than that all of the elements are true
when P is requesting summary judgment)
o Summary judgment can still be granted even if there are a lot of
disputed facts if there is a failure of evidence to one element (or
affirmative defense should be taken as true)
Particular summary judgment motion: decision made on specific issue
and then trial on other issues
Spectrum of Summary Judgment Motions:
o Matter of factWas there a policeman in the store? (summary
judgment improper)
o Mixed questions of law and fact: SJ may be proper
Whether driver used reasonable care is legal standard, but
applying standard to driver is question for the jury
o Pure matter of law: Does Constitution apply to discrimination
against women? (Not a question for the jury SJ could be
appropriate)
Policy:
o Jury control mechanism
o Helps weed out meritless cases, since pleadings alone dont do this

20

o Balance: If court is too reluctant to grant summary judgment,

waste of efficiency and economy. If courts grant summary
judgment too easily, the right to a jury trial can be impaired
How prima facie case made for S.J:
o If moving party bears burden of persuasion at trial:
moving party must support motion with credible evidence
(using material in 56(c)) that would entitle party to directed
verdict if case went to trial
if this burden of production met, burden shifts to
nonmoving party, who must then demonstrate genuine
issue for trial or submit affidavit requesting more time for
discovery
o If nonmoving party has burden of persuasion at trial:
Party moving for SJ may meet burden of production by:
submitting affirmative evidence that counters element
of nonmoving partys claim, or
Demonstrate to court that nonmoving partys evidence
is insufficient to establish essential element of claim: (if
moving party seeks SJ on ground that nonmoving party
has no evidence, moving party must affirmatively show
absence of evidence on record (depositions of other
partys witnesses, documents, etc), attacking all of
nonmoving partys evidence)
Rule 56:
o 56(c): Moving partys burden
outlines what moving party is supposed to do to be entitled
to summary judgment: must show that pleadings,
depositions, answers to interrogatories and admissions,
together with affidavits show that there is no genuine issue
as to any material fact and that moving party is entitled to
judgment as a matter of law
evidence looked at in light most favorable to nonmoving
party, making reasonable inferences
moving party cannot simply say there is no issue (has to
point to the evidence and show why there is no issue),
though moving party can but does not have to bring forth
its own evidence to contradict other party
If 56(c) not met, 56(e) does not apply
o 56(e): Nonmoving partys burden after motion for summary
judgment has been made and supported under 56(c)
Nonmoving party cannot rest on allegations and denials,
but must show specific facts that there is a genuine issue
for trial
Must show that a reasonable jury could find for them

21

VI.

o 56(f): request for time for more discovery on particular

issue/element to survive summary judgment motion
Adickes v. S.H. Kress and Co. (1970)lunch counter case
o Court said that D was not eligible for summary judgment because
he didnt carry the burden of showing the absence of material issue
of fact (must show that there was no policeman in store)
o To foreclose possibility of policeman being in store, D couldve
submitted affidavits by police, waitresses
o If D had met its burden, P would have had to come forward with
some affidavit, discovery material, evidence showing that it will be
able to meet its burden of production at trial
o No longer good law, as the case interpreted the 1963 amendment to
mean that the moving partys burden was to show the absence of a
genuine issue concerning a material fact
Celotex (1986) and the trilogy cases
o Reaffirms procedural importance of summary judgment to secure
just, speedy, and inexpensive determination of every actioncourt
more favorable to summary judgment
o If moving party does not have burden of production at trial: it must
show absence of evidence in one element (can simply point to lack
of evidence, relying on depositions, affidavits, etc., and does not
have to show evidence or prove affirmative defense to get
summary judgment)
o Dissent: Worries that court is deciding issues of fact and credibility
(assessing witnesses), infringing on jury rights
Summary Judgment in a nutshell:
o Moving party has burden of demonstrating that there is no material
issue of fact. If moving party makes the showing that is required,
nonmoving party has to come forward with some special facts to
show that there is some reason of material party. If nonmoving
party cannot contest that, summary judgment granted

Judgment as a Matter of LawDismissal, Directed Verdict, JNOV, New

Trials
When Jnov, SJ, Directed Verdict, etc. should be granted are reviewed
de novo because court has not reviewed matters of fact; decided issues
as a matter of law
Voluntary Dismissal: 41(a)
o Dismissal without prejudice: P can dismiss once and can file claim
again
o Adjudication on the merits: If P dismisses again, this will bar
another action on the same claim

22

It is not an adjudication on the merits if it is a dismissal for

jurisdiction or improper venue
Involuntary Dismissal:
o Such as failure to state a claim upon which relief can be granted
o Typically adjudication on the merits (res judicata effect)
Directed Verdict/Judgment as a Matter of LawRule 50(a)
o Timing: Made at end of presentation of case, before case goes to
jury
o Same standard for summary judgment, except that judge looks at
evidence instead of predicting what evidence will be
o Means that no reasonable jury could find in favor of party against
whom judgment is sought
o Question to ask: Is there sufficient evidence for a reasonable jury
to find in favor of the nonmoving party? If no, directed verdict
granted.
o Cannot be granted until non-moving party has had chance to be
fully heard
o Galloway v. United States: Insane soldier trying to get coverage
under government insurance policy
Motion granted, but judge was deciding on a question of
fact (was P permanently disabled in 1919?)
Judgment Notwithstanding the Verdict J NOV)Rule 50
o To comply with 7th amendment, court has let case go to jury after
having heard a motion for directed verdict (50(a) motion had to
have been made)
o Jury comes back for verdict for P and D says that there wasnt
enough evidence for a reasonable jury to find in favor of the P
o D asks for new trial and JNOV at same time because judge might
be more likely to grant new trial
Motion for a New TrialRule 59
o On ground that jury verdict is against the weight of the evidence
(allows judge to weigh evidence herself) for any of the reasons for
which trials have been granted at law in courts of United States
o May be granted on courts own initiative or through motion from
parties
o Granted if:
error by judge
misconduct of jury (arises from evidence because juries
cant talk about deliberations)
On ground that jury verdict is against the weight of the
evidence because judgment is clearly wrong (allows judge
to weigh evidence herself, unlike with SJ/judgment as a
matter of law motions)

23

VII.

Types of Verdicts
Special verdictRule 49(a): When series of interrogatories are issued
to jury that jury must answer and return to judge, who makes decision
based on the answers
o Allows judge to structure reasoning process of jury
General verdict: Find for P or D. If P, award damages
General verdict with special interrogatories49(b):
o Written interrogatories upon one or more issues of fact, decision of
which is necessary to verdict
o Concentrates jury attention, avoiding confusion, taking emotional
element out of case
Remittitur:
o Damages are excessive so P must agree to decrease in damages or
judge will grant new trial
Additur:
o Constitutionally unavailable in federal court
o Damages are insufficient, so D must agree to adding damages or
will be faced with new trial

VIII. Appeals
Final Judgment Rule: In the federal system, only final judgments are
appealed (no reason to appeal if something can be corrected at trial
level)
o Exceptions:
Collateral Order Doctrine: there is an order that is satellite
litigation and appeal does not require delving into the
merits of the case
Interlocutory Appeal: Primarily related to injunctions
Writ of mendamis: trial court has done something beyond
its power
Standards of review: (Rule 52(a))
o If issue on appeal is an issue of law, appellate court looks at it de
novo (on its own)
o If it was a bench trial and the court ruled on some fact finding, or if
issue on appeal is related to how jury reached its fact, reviewed on
clearly erroneous standard (was a factual finding clearly
erroneous?)
Appellate court will remand for new fact finding
o Discretionary matters, such as new trial granting, reviewed on
abuse of discretion
o Only goes from state to Supreme Court when there is a question of
federal law and final judgment has been rendered by the highest
court of a state in which a decision could be had.

24

IX.

Personal Jurisdiction
Addresses issue of whether the court has power to adjudicate over and
bind a particular defendant (idea of state sovereignty)
Role of notice: must ask if the D has received the kind of notice so that
it is fair to adjudicate this issue?
Full Faith and Credit Clause (Article 4, section 1):
o Full faith and credit shall be given in each state to public acts,
records, judicial proceedings in every other state
o Congress legislates how this full faith and credit is given
o 28 U.S.C.full faith and credit statute:
Such acts, records and judicial proceedings shall have full
faith and credit in every court of the United States as they
have in the state in which they were adjudicated. Only
applies to valid judgments.
Extends full faith and credit to federal courts
Categories of jurisdiction:
o In personam: Power over person
P is suing D and basis of lawsuit is some transaction
between them and P is trying to hold D personally liable for
injury
o In rem: Power over property within states borders
an action about and against property, in the sense that
property is the defendant, to determine individuals interest
in property
Used to resolve issue of property (who owns title)
Binds everyone whether or not they had notice, participated
in the proceeding, or were in the state
a state court always has personal jurisdiction over property
in the state
o Quasi in rem:
Based on presence of Ds property (personal or real) within
forum state
claims are unrelated to the property that provides basis for
jurisdiction in forum state
allows court to enter a judgment for an amount of money
not exceeding value of propertyhave to go to another
jurisdiction to enforce rest of the amount owed above the
property value
Property is attached to establish power over D
o Status:
Status of party in state has power over people who dont
live there (ex: wife in Fl wants to divorce husband in AZ)
Challenging Personal Jurisdiction:

25

o Collateral Attack: Default judgment is entered by not showing and

then D can challenge validity of judgment
o Special appearance: D can make a special appearance to challenge
jurisdiction without consenting to jurisdiction
o 12(b)(2): allows for a motion challenging personal jurisdiction
(idea of special appearance)
12(g and h): allows certain motions and defenses to be
consolidated so that motion to be dismissed can be filed
with motion to contest personal jurisdiction and that
wouldnt constitute an appearance and, therefore, waiver of
personal jurisdiction
If 12(b)(6) raised without 12(b)(2), personal jurisdiction
contestation is waived
Miscellaneous info about personal jurisdiction:
o Unlike subject matter jurisdiction, personal jurisdiction can be
waived
o States power in regards to jurisdiction is limited to person or
property within state (sheriff in MI cannot go to OH to serve D)
o P can always go where D resides to file suit, but for strategic
reasons, P often wants to file in home state (early, better settlement
in regards to inconvenience to D, home court advantage)
o Under the 14th amendment, a corporation is a person
o Issue of whether filing in one state where there is no PJ bars filing
the suit in another state:
Depends on nature of the judgment: 12(b)(6) motion or
summary judgment motion could be final judgment on the
merits which could lead to a bar from filing in another state
unless 12(b)(6) was dismissed with leave to replead in
proper court
1. Development of Personal Jurisdiction
Pennoyer v. Neff (U.S. 1877)
o Facts: When Neff, a nonresident of OR never showed up for court
(he was never served), default judgment was entered against him
and his land was auctioned off, sold to Pennoyer.
o Holding:
To establish quasi in-rem jurisdiction, Ds property in the
state must be attached merely having the property in the
state is insufficient.
Attachment establishes the necessary physical control
for personal jurisdiction.
Public notice combined with such attachment is
sufficient.
attachment is a constructive form of notice (idea that
property owner has responsibility to know what is
going on with her property)
26

Property in jurisdiction is valid basis for asserting

jurisdiction if court has asserted power over person or
property (through attachment)
o Instead of just saying that there was no quasi in rem because there
was no attachment, the court invoked the 14th amendment, making
personal jurisdiction a due process issue.
Harris v. Balk (U.S. 1905)\
o Courts trying to use Pennoyer framework creatively to fit case
where conditions have altered due to interstate commerce
o Md. court held that debt was personal property (quasi in rem
jurisdiction) and debt follows debtor into state where debtor goes
o Courts get jurisdiction over A if they personally serve B within the
state and B owes a debt to A
o Supported by idea that A could sue B in that state.
Hess v. Pawloski (U.S. 1927)
o Transactional case that is a precursor to International Show
o Long arm statute says motorist driving in state impliedly appoints
RMV as their agent to receive process if they are involved in an
accident in another state
o Policy: allows residents to get relief and keeps highways safe
o follows Pennoyer which says that states are allowed to require
people to appoint agents for service with process within state
o implied consent statutes are now replaced with long arm statutes
because causing an accident now satisfies minimum contact
Questions to ask in every personal jurisdiction case (arose because
jurisdiction became a constitutional issue):
o Is there a statute authorizing jurisdiction? (long arm statutes)
o Have the terms of the statute been met?
o Is the statute constitutional? (does it conform with due process?)
2. Modern Personal Jurisdiction
With more interstate commerce, the above rigid framework was
stretched to accommodate states seeking to provide local forum for
citizens to litigate claims against nonresident persons and corporations.
In 1945, the Supreme Court discarded structure of implied consent and
presence in favor of theory premised on actual connections.
International Shoe Co. v. State of Washington (U.S. 1945)
o WA statute authorized jurisdiction over nonresident employee for
failure to compensate unemployment fund
o Court discarded notion of actual physical presence of corporations
and created new test:
o Standard for determining if there is PJ:
Are there sufficient minimum contacts between out of
state D and forum state so that maintaining law suit in

27

forum state wont offend traditional notions of fair play

and substantial justice?
Offending fair play and substantial justice: look at
burden on D to come to and defend to foreign state
Contacts: Nature and quality of contacts matters
(continuous, systematic, substantial)
o Policy behind test:
Corporations are protected by laws of state (could sue in
forum states court) and receive financial benefit from
activities in state
o If claim arises out of corporations conduct within the state,
requiring corporation to respond does not offend notions of fair
play and substantial justice
o Notice can be giving notice to employee and then mailing notice to
headquarters
o Dissent:
Minimum contact standard to flexible and can be
manipulated (criticizes terms fair play, reasonable)
Standard could deprive right of states citizens to sue
corporation that does business in state
Levels of jurisdiction:

Level of Activity:

Effects of out of
state conduct felt
within the forum

Single act within

forum state

Mid-range of
activities within
forum state

Relation of Claim
to Activity:

Only related
claims

Only related
claims

Only related
claims

Continuous,
systematic,
substantial
activities within
forum
General
Jurisdiction: all
claims, related or
not

o General jurisdiction:
D can be sued for any sort of claim in a particular forum
General jurisdiction can arise if conduct is continuous and
systematic
Grounds for general jurisdiction:
Domicile or citizenship
Incorporation
Service or process in forum state
appearance in court
consent
o Specific Jurisdiction: (Post International Shoe)
Jurisdiction only when claim arises out of conduct that is
the basis for the claim

28

Extended to conduct in another state that has effects in the

forum state
o Single act within forum: (Extreme min. contact where state has
specific jurisdiction)
Mcgee: There was enough contact for lawsuit to be
maintained without offending due process where the
transaction was one insurance policy of a Texas company
sold to someone in California and this one policy was only
contact with CA
Long arm statutes:
o After International Shoe, states began enacting statutes authorizing
jurisdiction encompassing minimum contacts idea.
o To determine whether court may assert jurisdiction over
nonresident based on long-arm statute, ask:
Does the statute allow jurisdiction to be exercised in the
particular case?
If so, does it nonetheless reach beyond the constitutional
constraints of International Shoes minimum contacts test?
o Some states (such as CA) have said that minimum contacts does
not apply, but that court may assert jurisdiction on any basis not
inconsistent with constitution/due process of state or U.S.
Rule 4(k): Bounds of federal power with respect to jurisdiction
relevant long arm provision
o 5th amendment governs in federal court (14th in state court)
o 4(k)(1)(a): look to state law/statute to see if there is proper
jurisdiction (reach of fed. court in certain district the same as reach
of state court in that district)
o 4(k)(1)(b): 100 mile bulge provision authorizing jurisdiction over
an impleaded party not otherwise within the district courts reach
facilitates use of impleader, especially in metropolitan areas
that span more than one state
if federal bulge rule applies, minimum contacts rule does
not apply
o 4(k)(1)(c): provides nationwide service in federal impleader
actions to facilitate single litigation ??
o 4(k)(2): narrow provision that extends federal power to its
outermost constitutional limits in federal claims cases
When noncitizen of US does not have minimum contact
with any state so that a states long arm statute would create
personal jurisdiction over nonresident
Three requirements for jurisdiction here:
Plaintiffs claim must arise under federal law
Defendant must be beyond jurisdictional reach of any
state court.

29

 The exercise of jurisdiction must not violate the

defendants rights under the constitution (there are
sufficient aggregate contracts with the US as a whole to
satisfy the Fifth Amendment Due Process Clause).
3. Minimum Contacts Analysis in Operation

Hanson v. Denkla: Florida had no jurisdiction over a DE trust co.

because beneficiary moved to FL and the company never solicited any
business in FL.
o Personal availment: Test to see when contact is sufficient to give
rise to PJ:
Has the D personally availed itself of the benefit and
privileges of doing business in the forum state, or has
contact come unilaterally from P?
D has to purposefully direct its conduct at forum state, thus
invoking protection of states lawno PJ where contact is
unilaterally from P
Contacts that give rise to PJ must be a result of personal
availment)
When there is purposeful availment to benefits and
privileges of state, this gives rise to foreseeability of being
sued in state (this principle not stated in this case)
Worldwide Volkswagen v. Woodsen (U.S. 1980) Harris has been
overturned by this point
o Residents of NY buy a car from Seaway VW in NY, distributor is
Worldwide VW from NY and get in an accident in Oklahoma.
o Looks at personal availment vs. unilateral activity
o Foreseeability test:
Minimum contacts with forum state must be of such a kind
that D can anticipate being sued in that state (circular logic)
In response to argument that if a company could foresee its
product ending up in a state, that state should have personal
jurisdiction
o Stream of Commerce Theory:
Putting product into the stream of commerce under
circumstance might be adequate to establish jurisdiction
Policy: Company has benefited from putting product into
national network
Unilateral activity: When product ends up in another state
through unilateral action by P (driving car into state) there
is no PJ, though there may be PJ when a company
indirectly sells its product into a different state (Gray v.
American Radiator & Standard Sanitary Corp)
o Fairness and substantial justice: Determined by balancing
factors:
30

The Ps interest in obtaining convenient and effective relief

The Ds burden
The interstate judicial systems interest in obtaining the
most efficient resolution of controversies
The share interest of the several states in furthering
fundamental substantive social policies
o Dissent:
Effects of out of state activities in a forum state could give
court jurisdiction over the actor
Inherently mobile purpose of automobile should be
considered
Calder v. Jones (U.S. 1984)
o Looks at personal availment vs. unilateral activity in libel suit
o Court held there was jurisdiction in CA over Florida writer and
editor, even though neither went there to write article, because
their intentional conduct in Florida was calculated to cause injury
to respondents in CA where D (FL) wrote an article about P, who
lived in CA, though D did not go to CA to write article
o Not enough that P lives in a state and is injured in that state:
Jurisdiction because of high circulation in CA
Concerned activities in CA
Ps job and livelihood was in CA
o Calder v. Jones effects test: Intentional conduct in one state where
D knows is will have effects in another state (intentionally directed
acts needed)
o Alabama internet libel case: No jurisdiction in AL because article
had nothing to do with AL and was, therefore, not intentionally
directed at AL, but rather at P.
Asahi Metal Industry Co. v. Superior Court of California (U.S. 1987)
o Stream of Commerce theory in practice
o Issue: Whether foreign Ds awareness that the products in
manufactured, sold, and delivered outside the U.S. would reach
forum state in stream of commerce constitute minimum contacts so
that personal jurisdiction over D does not offend traditional
notions of fair play and substantial justice.
o Holding: Majority held that it would not be fair play and
substantial justice to have jurisdiction over Asahi even if there
were minimum contacts (reasonableness)
Once purposeful contacts are found, court still needs to
look at factors relating to fairness and reasonableness
before coming to a conclusion about PJ (see Worldwide
VW)
o Need to ask if there is purposeful availment on part of Asahi to
Californiacourt does not come to a majority decision about
purposeful availment:

31

OConnor: Stream of commerce plus additional conduct

theory:
Purposefully putting something into stream of
commerce with expectation that it is going to end up in
market place is not enough to establish personal
jurisdiction. Rather, some other personal conduct is
needed that is directed at forum state (Advertising
product in forum state, designing product for market in
forum state, giving regular advice to people in forum
state) to show that D intended to serve market
Brennan writes for 4 vote block saying there was
puroposeful availment:
Purposefully putting product in stream of commerce
with expectation that you will derive economic benefit
from it ending up in forum state is enough for
purposeful availment (Worldwide VW)
Need to look at both approaches today, since court hasnt
decided how it would decide a stream of commerce case
o Analyzing stream of commerce case post Asahi:
*Ohio valve manufacturer sells to PA tire manufacturer. Tire
explodes in CA. Is there personal jurisdiction over the Ohio
company in CA?
Has there been purposeful contact between D and
forum state? (min. contacts)
OConnor would say that additional factors needed
Brennan would say that putting product in stream of
commerce is enough for personal availment
If there has been, is it reasonable to exercise PJ over D?
(reasonablenessuse Worldwide VW test)
Note how reasonableness and minimum contacts are
separated now (used to be minimum contacts so that
exercising jurisdiction was reasonable)
Burger King v. Rudzewicz (U.S. 1985)
o Good overview of PJ (emphasizes idea that once minimum
contacts established through personal availment, factors could
show that fair play and substantial justice (reasonableness) could
defeat jurisdiction
o Holding: The existence of a contract is not enough to establish
minimum contacts for personal jurisdiction. Rather, other factors
must be present such as prior negotiations, future consequences,
terms of contract, parties course of dealing
o If there are minimum contacts, it is rare that the factors dont show
reasonableness--When determining reasonableness, D has to meet
heavy burden proving why PJ is not fair or reasonable

32

o Do not need to look at stream of commerce theory when product

sent directly to forum state
o Choice of law provisions: Provisions in contract that can determine
which states law is applied
These alone dont establish PJ, but adds to foreseeability of
jurisdiction
4. Jurisdiction Based On the Presence of Defendants Property
Shaffer v. Heitner (U.S., 1977)
o Marks the end of Pennoyer
Pennoyer restricted in personam jurisdiction to residents of
the forum state while it said that presence of Ds property
in forum state was enough for quasi in rem
o Narrow holding: Seizure of only intangible property as a means of
gaining jurisdiction is unconstitutional. One must have minimum
contacts.
Such statutes are just ways to compel people to submit to
jurisdiction
get rid of the fiction that power over property is different
from power over personinterest of person in things
o Broad holding: All exercise of jurisdiction must comply with
International Shoe fairness and substantial justice minimum
contacts analysis
International Shoe made it easier to obtain in personam
jurisdiction because PJ was no longer based solely on state
sovereignty, but on the relationship among D, forum, and
litigation
Presence of property in forum state not alone enough to
assert PJ
o For quasi in rem, where the plaintiff has been injured on the
property wouldnt be a difficult case
o Policy: If action of in personam jurisdiction would violate
Constitution, indirect (quasi in rem) assertion of jurisdiction would
too
o derivative action: allows shareholders to assert rights of
corporation
o Dissent:
leaves open possibility of quasi in rem jurisdiction where
real property is seized
uses minimum contacts analysis
5. Jurisdiction Based Solely on Personal Service Within the Forum State
Burnham v. Superior Court of California, U.S. 1990
o Burnhams (NJ) divorce and Mrs. Burnham moves to CA

33

o CA needs in personam jurisdiction over Mr. Burnham because case

involves custody and property issues
o Specific Issue: Whether personal service of Mr. Burnham in CA
while he was in CA for matters unrelated to lawsuit complies with
Due Process?
o Court says that physical presence in state personal jurisdiction
over that person, but there is no broad holding that creates general
rule of law on this issue, because all judges agree on outcome but
do not agree with how to evaluate jurisdiction where there is
physical presence in state
o Scalia: International Shoe standard of minimum contacts is
analogous to physical presence so when there is actual physical
presence, minimum contacts need not be evaluated
Tradition shows that physical presence is enough for
personal jurisdiction (physical presence in state establishes
fair play and substantial justice)
Minimum contacts applies when D is not in state
Good law is predictable, non discretionary (deciding
fairness is subjective)
o Brennan: Minimum contacts should be applied to all personal
jurisdiction cases
Can use ideas of personal availment, foreseeability, etc. to
determine, on independent basis fairness of in state service
rule
All rules of jurisdiction, even ancient ones, should satisfy
contemporary notions of due process
o Ultimately, in most cases where D is served in forum state and is
intentionally present in forum state, the state will have jurisdiction
o There is not PJ over a corporation simply because a corporate
agent as in a stateneed to see if there is general jurisdiction or if
a case can be made based on minimum contacts analysis
Wenche Seimer v. Lear Jet
o Fifth circuit held that Corporations have never fitted comfortably
in a jurisdictional regime based primarily upon de facto power over
the defendants person. \
o Judicial power over corporations must be based on either one of
two constitutionally permissible bases, specific jurisdiction over
claims relating to instate activities, or such continuous and
systematic conduct in the forum state so as to justify general
jurisdiction.
Tag Jurisdiction
o Jurisdiction has been upheld where D was served while on plane
over forum state
o Under Brennans analysis, this case would probably not come out
the same because there arent sufficient minimum contacts, person
34

hasnt availed self to benefits of state, no intent to go to state that

plane is flying over
o Scalia: Traditional notions of presence isnt flying over state
6. General Jurisdiction
When forum activities of a corporate defendant are sufficiently
continuous, systematic, and substantial, it may be sued under unrelated
claims in forum state
Domicile: Citizens of state may be sued there on any claim, even
claims rising from events in other states ensures that there will
always be one forum in which D may be sued
General jurisdiction exists over a corporate D that is incorporated in
forum state or whose headquarters or principle place of business is
located there
Helicopteros Nacionales de Colombia v. Hall, U.S. 1984
o Wrongful death suit for airplane crash that occurred in Colombia
o Issue: Whether the exercise of jurisdiction can take place even
though the claim did not arise out of or relate to Helicols activities
in the state (Is there general jurisdiction over Helicol?)
o Contacts with state must be continuous, systematic, and substantial
(from International Shoe)
o Factors to assert general jurisdiction over corporation:
Permanent employees, offices, significant revenue,
headquarters/principle place of business, incorporation
Activity that looks like activity of a local resident
o Majority says that there is no general jurisdiction even though
contract negotiations were done in Texas, the helicopter was
bought in Texas, the pilot was trained in Texas
o Standing alone, purchases and related trips are not a sufficient
basis for states assertion of jurisdiction
o Court does not decide on specific jurisdiction (reluctant to allow
U.S. courts to assert jurisdiction over foreign companies)
Perkins: Opposite end of the spectrum from Helicopteros where there
was PJ in Ohio over Philippines corporation based on the fact that the
present had residence there and did business there
Specific Jurisdiction v. General Jursidiction:
o SJ: Premised on contacts that D has in forum state (relationship
between activity of D in forum state and the forum)
o GJ: Out of state body has such continuous, substantial, and
systematic contact in forum state that there is jurisdiction over D
(Question of when Ds activity in forum state is sufficient so that
jurisdiction over her would be fair)
7. Consent
D can voluntarily appear in court and therefore submit to jurisdiction
35

Forum-selection cause: consent to jurisdiction in contract before

dispute even occurs
Carnival Cruise Lines v. Shute U.S. 1991
o Courts will enforce forum selection causes in cruise tickets when
they are fundamentally fair (not used in bad faith to discourage P
from filing claim, not obtained by fraud or overreaching)
o P must have notice of clause and ability to repudiate it without
impunity
o Provides element of certainty and efficiency, with less litigation
about jurisdiction
o Prevents cost-shifting to consumer (higher prices if there is
jurisdiction in many states)
o Limits number of locales where corporation can be sued
o Generally upholds concepts of PJ, which is to protect D from being
sued under unfair and unreasonably burdensome conditions

8. Personal Jurisdiction in Internet Cases

Supreme Court has not spoken to issue of how PJ is affected by
technological advances and the internet
ALS Scan, Inc. v. Digital Service Consultants, Inc., 4th Circuit, 2002
o Court using test of series of factors first developed in Zippo case (a
lot have followed this Zippo analysis)
o Court of Appeals uses sliding scale to determine PJ based on
internet cases:
PJ established: Contact via internet website, intent to do
business (i.e. purposeful contact)
PJ is questionable: Some exchange of activity/exchange of
info with host but nature of activity needs to be examined
to determine whether there is PJ
No PJ: Passive website information
o Court is adapting some notions of purposeful availment, but is not
fully implementing traditional notions of reasonableness and fair
play
o PJ in internet cases established when: 1) Must direct electronic
activity into state 2) with the manifested intent of engaging in
business or other interactions with the state and 3) the activity
creates in a person within the state, a potential cause of action
cognizable in the states courts
o How to assess internet PJ cases:
Look first to state long-arm statute
If long-arm has been established, look to Constitutional
argument and ask if D has engaged in purposeful contact
with state so that PJ in state would not offend traditional
notions of fair play and substantial justice.

36

X.

9. Notice
Under Pennoyer notice occurred simultaneously with act that gave
rise to jurisdiction, either personal service or attachment of property
within state.
After Intl. Shoe we needed system of notice that complied with
minimum contact analysis.
Mulane v. Central Hanover Bank & Trust, U.S. 1950
o Question of notice to members of a common trust where service
was given in local newspapers in NY while many people in the
trust were non-residents. Company had also sent copies of NY
Banking regulations to members of trust
o Standard of notice: Must be reasonably calculated, to apprise the D
of the lawsuit and provide them a chance for response. Notice must
be of such a nature as to reasonably convey the required
information and must afford a reasonable time for those interested
in making their appearance
o In regards to known persons, notice by publication is not sufficient
o May be sufficient if it is done with some other act (ex. seizure of
property, abandonment), publication may be sufficient notice
o Publication may be adequate where persons are unknown
o Status of law today: Notice by U.S. mail is Constitutional
minimum Ds whose addresses can be ascertained by reasonably
diligent effort
Rule 4 and Notice
o 4(c)(2) says that anyone over age of 18 may deliver service
o 4(d) governs service on corporations
o 4(d) says that P first sends a waiver form asking D to waive actual
service of process. The waiver includes notice of the lawsuit and
copy of the complaint.
4(d)(5)if D denies this waiver, D will have to pay for Ps
costs unless a showing of good cause for failing to comply
wit request for waiver made.
Examples of good cause language differences etc.
o If service is waived, D gets 60 days to file an answer, if not
waived, 20 days upon service.
If statute of limitations is running close, and P is in a state
where SOL continues on until answer, P may not have time
for waiver procedure, and P may have to personally serve
under rule 4(e), 4(h)
o If D refuses to waive, procedure is 4(e)(1) which brings P back to
state law.
o One can object to personal service of process with 12(b)(4), but
cannot waive objection to venue 12(b)(3) and personal jurisdiction
12(b)(2).
Venue
37

State venue laws: Identify counties within state where action may be
brought
Federal venue rules: Locate a case within particular federal judicial
districts
If Subject Matter Jurisdiction is based on diversity of citizenship or
federal question, venue is proper in a judicial district where any
defendant resides (if all reside in same state) or where substantial part
of the events giving rise to claim occurred
Corporate defendant resides in any district where it is subject to
personal jurisdiction
If defendants from different state or events of claim rose in foreign
country, diversity action may be filed in a district where any defendant
is subject to PJ and a federal question case in a district where any
defendant may be found (less than PJ)
Many states have more then one federal judicial district; venue is not
about power as is personal jurisdiction but about convenience.
Venue, unlike PJ, is not a constitutional requirement for a valid
judgment
28 USC 1391 (General venue statute)sets up different rules
depending on whether SMJ is based on diversity or federal question
o 1391(a): Diversity of citizenship
1) Party resides: Venue is proper in judicial district where
any D resides if both Ds reside in same state (corporate Ds
reside in any district where it is subject to PJ)
2) Claim: Judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred, or a
substantial part of property that is subject of the action is
situated or
3) Diversity action fall back provision: Where any D is
subject to PJ at any time action is commenced if no district
in which action may be brought otherwise
o 1391(b): When jurisdiction is not solely on diversity of citizenship
1) and 2) the same as above
3) Fall back provision: Where any D may be found (less
that PJforeign Ds)
o 1391(c): Where a corporation resides
Hypos:
o *P is suing D and D1. Lawsuit arises out of a car accident that
occurs in Manhatten. P is a citizen of N.Y. D is a citizen of
Harrisburg PA and D1 is from Pittsburgh. Jurisdiction in federal
court for a state law negligence claim for a state law diversity of
citizenship.

38

Federal courts that have venue over this action: Either

middle or western PA.
Look at section 8: Substantial amount of even of lawsuit
took place in NYC.
PJ is appropriate in PA and in southern district of NY
because of minimum contacts
SMJ is appropriate because of complete diversity
If P filed in Buffalo, Ds could file 12(b)(3) for lack of
venue because events didnt arise there. PJ is available in
state of NY. Venue could be waived.
o *Car accident in N.Y. D lives in MA and D2 lives in NJ. P wants
to file a federal action.
Southern district of N.Y. is only proper venue (where
substantial portion of events occurred)
o *Car accident happens in Paris. P wants to sue Ds in federal court.
1404(a) Change of Venue
o Allows for change of venue within federal system where action
may have been brought originally (For convenience of parties and
witnesses, in interest of justice) Does it have to be where it could
be originally brought?
1406(a) Cure or Waiver of Defects
o If action is brought where venue is improper, the D can seek to
have action dismissed (without prejudice) or court can cure defect
by transferring case to appropriate venue in which it could have
been brought, in interest of justice
o Objection to venue must be raised in timely manner or it is waived
o Cannot be raised as a collateral attack (not required for valid
judgment)
Forum non conviens:
o Common law doctrine where court is being asked to dismiss an
action because there is a more convenient forum where this action
should go forward.
o Gives the court the power to dismiss the action to be filed in a
different forumdismissal is conditional on the parties allowing
the case to go forward in the new venue
o Different from 1404 or 1406 because it is premised on the idea that
we are operating in the federal systemfederal system cannot
transfer a case to Scotland.
o 1404 vs. forum non conviens:
1404 applies to the federal court system, Puerto Rico and
Guam vs. FNC applies to state courts and to deferral
system when possible venue is foreign or at state level
1404 change should not result in change in applicable law.
The statute was designed as housekeeping measure,

39

XI.

allowing easy change of venue within a unified federal

system
o Other states or foreign courts do not have to accept case, but the
present court will dismiss the case on the condition that the D
waives the statute of limitation objections and PJ objections.
o Some states have incorporated FNC into long arm statute or other
statute
Piper Aircraft v. Reyno, U.S. 1981
o Scottish air plane crash with pilots and Scottish victims, some
American parts--action originally brought in California because of
strict liability, eventually transferred to US District Court in
Pennsylvania. Petitioners moved to dismiss on grounds of forum
non conveniens after noting alternative forum in Scotland.
o Supreme Court ruled that although the above is the case with
1404(a), it is not appropriate to weigh the factor of change of law,
unless there is no remedy at all in another jurisdiction, because of
concerns with forum shopping, but should examine within a
balancing test for forum non conveniens.
o Trial court in charge of deciding proper venue, weighing private
and public interests
o Weighing private factors (relevant to litigants):
Where is it easiest to gather witnesses?
Where would procedures be less expensive and
expeditious?
o Weighing public factors (relevant to courts):
Is this court congested with lots of cases?
Does this case have some connections to the forum?
What kind of law is going to govern in this case?
o Ordinarily presumption that plaintiffs choice is convenient,
however, this presumption applies with less force when plaintiffs
are foreign because assumption is that Ps choice of venue is
convenient for P (not case if foreign P)

Subject Matter Jurisdiction

Subject Matter Jurisdiction, Personal Jurisdiction, and Notice are three
requirements for a valid and enforceable judgment
SMJ deals with authority of a court to hear a particular case
Court can raise question of SMJ on its own, even if its not contested,
unlike PJ
Constitution defines SMJ in Article III:
o Federal question jurisdiction and diversity jurisdiction
o Gives Congress the power to establish inferior federal courts and
designate the jurisdiction of the court within the authority of the
Constitution

40

o Need a jurisdictional statute for federal courts to have jurisdiction

(Article III allows federal court to hear cases, but need statute
whereby Congress has given federal courts this power)
o Congress has established these statutes relevant to jurisdiction
1331: Federal question and the well-pleaded complaint rule
1332: Diversity jurisdiction; complete diversity and the
amount in controversy
These statutes essentially limit power of federal courts to
hear cases
Diversity and federal question cases can generally be heard in either
federal or state court except when exclusive jurisdiction given to
federal court (bankruptcy, patent and copyright, etc.)
Non-diversity cases and cases not dealing with federal law can only be
heard in state court
Considerations when deciding if decision is filed in state or federal
court:
o How favorable the state or federal court will view the client
o Issues that federal court might have more expertise with
o Timing: one court might be backlogged
Federal Question Jurisdiction
o 28 USC Section 1331 governs Federal Question Jurisdiction
1331 provides for federal jurisdiction over all civil action
arising under Constitution, laws, or treaties of U.S.
Well-pleaded complaint rule governs interpretation of
1331
Does P have to establish some federal issue in order to
win her case?
In establishing her COA,
does P raise a federal
question?
o Louisville and Nashville Railroad Company v. Mottley (U.S. 1908)
Deals with question of whether there can be SMJ based on
federal question when P states in claim that Ds defense
will raise a federal question
Court says that issue of federal law has to be raised as part
of Ps claim, excluding anticipated defenses
Implication is that some cases will require resolution of
federal issue that is raised as defenses that there is no
federal jurisdiction for
How to determine if case arises out of federal question:
Must arise out of laws, treaties, or Constitution of the
United State

41

Federal question essentially means that federal law

creates cause of action (P is raising claim created by
federal lawusually a statute)
Might be a federal question even though federal law
doesnt create cause of action, but normally federal
statute/law creates cause of action that gives rise to federal
jurisdiction
Counterclaims cannot give rise to federal jurisdiction if
there was no federal jurisdiction in original claim

Diversity Jurisdiction
o 28 USC Section 1332 governs Diversity Jurisdiction
Every P must be a citizen of a different state than every D
(diversity across v. not on one side or the other)
Section d(2)(a): Class action suits
o Diversity must exist at all times the complaint is taking filed.
(Though there is now a class action fairness act which allows a
class action to be held on diversity when any 2 parties are diverse)
o Defining Citizenship:
Defines as domicile: the true, fixed and permanent home
and principal establishment, and to which he has the
intention of returning whenever he is absent therefrom
Corporations: citizens of state of incorporation and primary
place of business (i.e. can be citizens of more than one
state, unlike persons)
Determined by nerve center test (where executive and
administrative functions are performed) and place of
operations test (one state where corporate activity is
significantly greater than in the other states
Diversity must exist at time complaint is filed and
subsequent changes in citizenship have no bearing on
diversity
o Amount in Controversy:
Currently $75,000 for diversity cases to reach federal court
Determined by amount claimed by P in good faithcan be
dismissed on this grounds only when appears to a legal
certainty that the claim is for less than minimum limit
federal jurisdiction not lost if judgment is actually for less,
though court costs can be imposed on P who recovers less
Policy: To make sure case is financially significant enough
to be in federal court. Idea that once one claim is
financially significant enough, why not add others?
Exxon Mobil Corp. v. Allapatah Services (U.S. 2005)

42

Prior to Exxon, ever P had to independently satisfy the

amount in controversy requirement with regard to a
specific D
Court: Where other elements of jurisdiction are present
and at least one named P in the action satisfies the
amount in controversy requirement, 1367 authorizes
supplemental jurisdiction over the claims of other Ps in
the same Article III case or controversy, even if those
claims are for less than the jurisdiction amount
specified in the statute setting for the requirements for
diversity jurisdiction.
Dissent: If theres jurisdiction over a civil action, civil
action has to be seen as complaint as a whole in the
diversity context. If this is done, it is clear that Ps who
do not meet amount in controversy requirement should
not be allowed into case
Ortega v. Star-Kist (Court of Appeals decision with same
ultimate decision as Exxon)
P (Puerto Rico) filed claim in federal court against D
(Fl) asserting claim of $100,000. Her family each had
claims of $10,000
Rule 20 allows them to join as Ps
1367(b) says nothing about Ps who have joined together
under Rule 20nothing is preventing Ps who dont
have minimum amount in controversy from joining P1
However, if none of the Ps satisfy minimum amount in
controversy, they cant add together their claims to
reach minimum

Supplemental Jurisdiction (Pendant and Ancillary Jurisdiction)

o Claims not of diversity or federal question but closely connected to
claims already in court
o Federal joinder rules encourage joining of claims and actions for
efficiencyjoinder rules are broad and permissive (Rule 18
joinder)
o However, some claims may be authorized under joinder rules but
not under SMJ
o Ancillary vs. Pendant Jurisdiction:
Pendant: Federal and state claims being asserted against
one defendant
Ancillary permits court to hear a related claim against a
party impleaded by an original D (adding parties)
Pendant Party: Hybrid of the two
All are known as Supplemental now (post 1367 adoption)

43

o Pendant JurisdictionUnited Mine Workers of America v.

Gibbs (U.S. 1966)
Gibbs has federal statutory claim and joins with it state law
claims, using Rule 18.
Even though Rule 18 allows this joinder, court must have
PJ and SMP over all parties
When state claim is so closely tied to questions of federal
policy, pendant jurisdiction may be allowed
Article III permits federal courts to decide cases where
theres jurisdiction over federal claim and there are state
claims that arise out of common nucleus of operative fact
Question of pendant jurisdiction remains open throughout
trial procedures.
Ps claims are such that he would ordinarily be expected to
try them in one judicial proceeding
When federal court might choose not to exercise power:
When justification does not lie in fairness and economy
When there is a dominance of state law claims or that
there is a good likelihood of jury confusion
o Ancillary JurisdictionOwen Equipment and Erection Co v.
Kroger (U.S. 1978)
Facts: Crane close to power line causes Mr. Kroger to be
electrocuted to death
Under Rule 14(a), D impleads non-diverse 3rd party. P then
asserts claim against this party.
P couldve asserted claim in state court
Limits of supplemental jurisdiction: There is no diversity
where P sues D and D impleads third party D who is citizen
of same state as P (Supplemental jurisdiction not extended
where requirements of 1332 statute could be evaded)
Policy: P could get chosen jurisdiction by suing D and
waiting for D to implead third party, gutting complete
diversity requirement of 1332
1332(a)(1) has been interpreted to require complete
diversity
No supplemental jurisdiction if P couldnt have originally
brought suit against party
Convenience of litigants and judicial economy are not
sufficient enough reasons for allowing non-diversity cases
to reach federal court
When Ancillary Jurisdiction has been upheld:
Defendant bringing in third party defendant, logically
dependant upon the first claim otherwise original
defendants would have to seek contribution in a
separate state proceeding following federal litigation so
44

it avoids inconsistent results and fosters judicial

efficiency.
Typically involves claims by a defending party haled
into court against his will, or by another person whose
rights might be irretrievably lost unless he could assert
them in an ongoing action in federal court.
o Finley v. United States (U.S. 1989)
Facts: Airplane crash. P has tort claims against city of San
Diego, San Diego Gas and Electric and FAA
Rule 20 allows new parties to be added if claim against
parties arises out of same transaction or occurrence and
theres a common question of law or fact
Under FTCA, P has to sue government in federal court
Court said that statutory authorization of FTCA does not let
other claims that are joined with FTCA to go to federal
court
P would have to go to two different court (federal under
FTCA and state for San Diego)
In this case, court says that fidelity to statute is more
important than efficiency and convenience
To do away with this unfairness, Congress creates USC
1367, overruling Finley
o USC 1367: Supplemental Jurisdiction
(a) Except as provided in (b) and (c) or by federal statute,
in any civil action of which the district courts have original
jurisdiction, district courts shall have supplemental..over all
claims that are so related to claims in the action within such
original jurisdiction that they form part of the same case or
controversy under Article III, Such supplemental
jurisdiction shall include claims that involve the joinder or
intervention of additional parties.
(a) encompasses idea in Gibbs of one constitutional
case, the idea of pendant jurisdiction, pendant party
jurisdiction and leaves room for third party
practice, the idea from Kroger.
(b) civil actions founded solely on section 1332 (diversity
jurisdiction), courts shall not have jurisdiction under
subsection (a) over claims by plaintiffs against persons
made parties under rule 14, 19, 20, or 24, or over claims by
persons proposed to be joined as plaintiffs under rule 19, or
24 (intervention), when exercising supplemental
jurisdiction over such claims would be inconsistent with
requirements of section 1332 (complete diversity).
(b) encompases the concern in Kroger, but also only
applies when jurisdiction is solely based on 1332, so

45

pendant party is allowed under subsection (a), a

reaction to Scalias opinion in Finley.
(c) the district court may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if:
The claim raises novel or complex issues of state law
The claim substantially predominates over the claim or
claims over which the district court has original
jurisdiction
The district court has dismissed all claims over which it
has original jurisdiction
(c) allows (a) to be discretionary and provides
exceptions to (a).
From the house report in federal question cases (1367)
broadly authorizes district courts to exercise
supplemental jurisdiction over aditonal claims,
including claims involving the joinder of addional
parties (like in Finley).
o Supplemental Jurisdiction Problems:
Look at 1367 and ask, Does court have jurisdiction over
some claim (under 1331, 1332)?
Yes Do state law claims arise under common nucleus of
operative fact as the federal claim? (i.e. case is one case so
the court has the power to adjudicate over bother parties)
Yes If sole ground of jurisdiction is diversity, do
exceptions in 1367(b) remove supplemental jurisdiction
that might otherwise have been created under 1367(a)?
Yes Should the court exercise its power to hear and
decide state law claims the claims under 1367(c)? (Court
isnt required to hear and decided, but have the power to do
if its appropriate) To decide this, ask
Is there some unsettled question of state law that would
make it more appropriate for a state court to decide?
Has P simply thrown in federal question to get state
claims to federal court?

Removal (28 USC 1441)

o Though P initially has choice of where to file suit (state or federal),
1441 says that, under some circumstances when D has interest in
federal court, D can remove case to federal court
o When more then one defendant is joined in the action, all must as a
general rule join in the removal petition. Only original, not third
party defendants, may remove a case.
o 1441 (a) (Removal Generally) Allows for removal from state
court to federal court if a district court would have original

46

o
o

jurisdiction to the district and division embracing the place where

such action is pending.
1441bForum Defendant Rule: Any civil action that district
court has jurisdiction shall be removed to federal court unless it is
only a diversity case and D is citizen of state where action was
brought (P has done D a favor by bring action in Ds state)
Spencer v. U.S. District Court for the Northern District of
CA (U.S. Court of Appeals, 9th Circuit, 2004)
Facts: Mr. Spencer died when he was electrocuted by
utility pole owned by Pacific Gas and Electric P (CA)
sues Altec (Alaska) in state court in CA.
D removes action to Northern District of CA
P brings in Pacific Gas and Electric (CA) to destroy
diversity and bring action back to state court
If P originally structured case like this, it couldnt be
removed because of Forum Defendant Rule, but Court
says that P shouldve made Pacific Gas an original
party to prevent removal (Ps can structure original case
in a way to prevent removal
SMJ determined at time of filing and events that occur
after filing dont disturb SM J and kick in Forum D
Rule (and at time of filing, removal was allowed)
1447(c) (Remand): If at time of filing in state court, action
couldve been brought in federal court and Forum D Rule doesnt
apply, action can be removed to federal court
Approaching 1441 Problems:
Ask, Is this case over which U.S. district courts have
jurisdiction under 1331 or 1332? (all statutes are applied in
removal cases)
Which of the following cases would be removable?
P sues D for defamation in state court; D believes the
statement she published is protected under the First
Amendment of the U.S. Constitution.
P sues D in state court, alleging violation of Ps rights
under the equal protection clause of the Fourteenth
Amendment of the U.S. Constitution.
Removable by D
P, a citizen of FL, sues D, a citizen of NJ, on a personal
injury claim, in a FL state court, seeking $100,000 in
damages.
Removable because of diversity and no Forum D Rule.
Amount in controversy is more than minimum standard
P, a citizen of FL, sues D, a citizen of NJ, on a personal
injury claim in NJ state court, seeking $100,000 in
damages.
47

XII.

Forum D Rule Applies

The facts as are in Problem (d), except that P adds a claim
that D has violated her federal civil rights.
Removable because it is not just a diversity case
P, a citizen of FL, sues D, a citizen of NJ, and E, a citizen
of NY, on a personal injury claim in NY state court, seeking
$100,000 in damages.
P (FL) and P2(FL) v. D (NY) in FL state court where Ps
claim is $100,000 and P2s claim is $50,000. Can this be
removed to federal court?
Supplemental jurisdiction can work with removal
statute
If P couldve brought action in federal action originally,
there could be removal.

Erie Doctrine
In federal diversity cases, there is a question of whether state or federal
law applies
Vertical choice: between state and federal
Horizontal choice: deciding which state law to apply
Federal question cases: Easy to decide what law to apply because
Article 6th (supremacy clause of Constitution) makes it clear that even
state courts have to apply federal law
Diversity Cases: What law does fed. court apply to decide diversity
cases?
Erie Railroad Co. v. Tomkins (U.S. 1938)
o Facts and Procedure: P was walking along pathway along railroad
when freight train operated by Erie Railroad Co came by and hit
him (open door or something). P filed suit in federal court for
southern New York because Erie was incorporated in that state
o If state law applied, P might not be able to recover because of PA
trespassing law
o Issue: Whether the federal court was free to disregard the alleged
rule of Penn. common law
o Rules of Decision Act: Laws of several states shall be regarded as
rules of decision in courts of US in cases where they apply unless
Constitution, treaties, or statutes of U.S. say otherwise.
o Swift v. Tyson was precedent before this.
Interpreted Rules of Decision act to mean that only laws
and not judicial decisions applied Courts exercising
jurisdiction on ground of diversity of citizenship need not
apply unwritten state law as declared by the highest court
and that federal courts could decide what law is
Goal was to create uniform general law in federal court

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This allowed corporations to avail itself to federal law by

reincorporating in another state and generally introduced
discrimination to in state Ds, promoted forum shopping
This conflicted with Constitutional rights of states to apply
its law except in matters governed by federal Constitution
or Acts of Congress. Constitution doesnt give power to
Congress to institute general tort laws or general contract
law if not given to Congress, also not given to federal
courts.
Holding: Except in matters governed by constitution or acts of
congress, the law to be applied in any case is the law of the state.
Any source of law, whether by statute or common law, is state law.
There is no general federal common law. Congress has no power to
declare substantive rules of common law applicable in a state
whether they be local or general, be they commercial law or a part
of the law of torts. And no clause in the constitution purports to
confer such a power upon federal courts.
Twin aims of Erie: Prevent forum shopping and inequitable
distribution of the law (by alleviating unfairness to instate Ps and
Ds)
Erie was decided in the same year that the FRCP were enacted.
This resulted in conflict between state rule and FRCP
How should a court decide if State Supreme Court hasnt decided
on an issue (trespassing, for example)?
Federal court has to predict how the state court would
resolve an ambiguity in state law, using trial and appellate
court decisions, relevant case law from other jurisdictions,
etc.
Issue is how aggressive federal court should be in
anticipating where state law is going

o
o
o

Guaranty Trust Co. v. York (U.S. 1945)

o Considers whether federal court is required to apply the state
statute of limitations or the federal practice called laches, a
flexible doctrine of limitations
o Says point of Erie was to ensure that in cases where federal court
is exercising jurisdiction based on diversity of citizenship, outcome
of litigation should be same as far as legal rules determine outcome
if it were tried in State court
o Outcome Determination Test: If disregarding state rule would
significantly affect outcome of federal court, state law should be
applied (test determines if state law is rule of decision or just
procedure)
o Court says consequences are what is important and not distinction
between substance and procedure

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Byrd v. Blue Ridge Rural Electric Cooperative, Inc. (U.S. 1956)

o Considers whether Outcome Determination test alone is an
adequate test in application of Erie
o Issue: Should question of fact be sent to jury or should it be
decided based on SC state statute that says judge should decide it.
o York would say that state law should apply because state law
would/could result in different result if state law applies
o Court says if outcome were only determination state rule may
apply. However, when there are countervailing considerations, a
public interest in a federal system of allocating functions
between judge and jury, then a state rule not bound up with rights
and obligations (not substantive)can not always be followed.
o Court says furthermore, if outcome test is done, its not conclusive
this case stands for the proposition that outcome determination
test is not alone enough to decide these cases

Hanna v. Plumer (U.S. 1965)

o This case represents the current understanding of how the Erie
Doctrine works
o Facts and Procedure: Auto accident involving Ohio woman and
Massachusetts man. Person who caused accident died so D is
executor of estate. MA statute governs service of process against
executors and FRCP governs service in federal court
o D says that P shouldve complied with MA statute (P followed
federal procedures)
o If state rule applicable, suit should be dismissed since P didnt
comply. If federal rule applicable, suit should go on.
o Rules Enabling Act (1934) Supreme Court shall have power to
prescribe, by general rules, the forms of process, writs, pleadings,
and motions and the practice and procedure of district courts of US
in civil actions Such rules shall not abridge, enlarge, or modify
any substantive right and shall preserve the right of trial by jury
o Holding: When there is a conflict between state law and FRCP, if
FRCP does not go beyond Constitutional powers or Congressional
powers of Constitution (Rules Enabling Act), FRCP is good law
and trumps state law
o Goes beyond Constitution if rule is too substantive and in an area
of policy that is not governed by Constitution under Article 10
o Decision is important in that it maintains uniformity of FRCP,
preserved rationale of Erie, and protects FRCP from being eaten up
by outcome determination test of York
Walker v. Armco Steel Corp. (U.S. 1980)

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o Deals with line between substance and procedure not controlled by

FRCP. When theres no collision, Outcome Determination test
must apply, being read in light of twin aims of Erie
o Reads Hanna narrowly, saying that there is no direct collision
because FRCP 3 isnt intended to have anything to do with statute
of limitations, but is a housekeeping matter
o Twin aims of Erie: Choice of law question is whether applying
federal practice would have result of forum shopping and
inequitable administration of laws, prejudicial to non-diverse Ps
and Ds. Only one of these aims must be implicated for aim of state
rule to be outcome determinative.

Gasperini v. Center for Humanites, Inc. (U.S. 1996)

o Law of NY says that courts are empowered to review the size of
jury verdicts and to order new trials when the jurys award
deviates materially from what would be reasonable
compensation; furthermore, the appellate courts are required to go
through the same analysis.
o Because it is a conflict with judge made practice, not directly a rule
(we see the practice as sort of a default in absence of state statute
that affects substance), we do modified outcome determinative test
and it would effect forum shopping, inequitable distribution of
laws so we apply the state practice.
o Issue because federal courts have to apply state statute, but
appellate courts cannot review damages awarded by jury (conflicts
with 7th amendment) appellate court can determine whether trial
judge abused discretion in applying federal standard

Erie doctrine cases in general:

o Erie says that in diversity cases, courts apply federal procedural
rules and state substantive rules
o York says that rules of decision are determined by Outcome
Determination Test. This would eventually corrode FRCP because,
at some point, different rule is going to give different result
o Byrd and Hanna try to protect FRCP when there is a collision
between state rule and FRCP
o Byrd is relevant in how it was used in Gasparaniaccomodating
state law interests while applying federal rule
o Walker applies outcome determination test in light of twin aims of
Erie, referred to in Hanna

How to do Erie Problems:

o First identify the source of the federal practice: (FRCP, Judicial
Code Provision, Judge made common law or practice, or a federal
practice essential to character of federal litigation)

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o Is there a direct collision between FRCP and the state

statute/law? (no if they can coexist)
Yes Is the FRCP valid under the Rules Enabling Act and
the Constitution?
Constitution: Are the rules characterized as procedural?
(i.e. has Constitution given federal government the
power to enact the kind of rule that is being evaluated.
Congress has given power to court to do this)
Rules Enabling Act: It does not abridge, enlarge, or
modify a substantive right.
Yes use FRCP over statute
No The collision is between federal judicial practice or
common law and state law and an Erie-esque analysis
applies. The state law applies if:
Use of federal law would be outcome determinative at
any point in the litigation.
It is outcome determinative if at least one of the twin
aims of Erie is implemented (forum shopping and
inequitable distribution of the law)
o Should also do modified outcome determinative test when conflict
is within a federal practice essential to character of federal
litigation (countervailing considerations of Byrd)
XIII. Claim Preclusion/res judicata
Claim Preclusion prohibits P from splitting up claims that arise from
common nucleus of operative fact
Elements:
o (1) Final and valid judgment on the merits
o (2) Second lawsuit arises out of same claim as first lawsuit
o (3) Parties are the same or are in privity
Policy:
o To avoid wasting judicial resources
o So D doesnt have to defend case again
o So P cannot file same claim until she finds a sympathetic jury
o To avoid inconsistent results
If claims involve different transactions, P doesnt have to join claims
(trying cases separately would not repetition of same facts and
evidence)
Claim preclusion usually results in summary judgment
Two moments in course of lawsuit to keep claim preclusion in mind:
o When constructing complaint: Need to make sure to include all
issues that raise out of one claim to avoid preclusion later on

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o If theres a second lawsuit filed: Ds lawyer has to be aware of

claim preclusion to raise it as a defense
Final and valid judgment on the merits
o Dismissal for lack of jurisdiction, improper venue, non joinder,
misjoinder is not. Dismissal with prejudice is. (Rule 41(b))
o Other judgments, such as motion to dismiss for failure to state a
claim with prejudice, SJ, will be judgments that have preclusive
effect
Second lawsuit arises out of same claim as first lawsuit:
o Fundamental question, has the party had the opportunity for their
day in court, to argue the merits of the case?
o Factors to consider when determining whether lawsuit arises out of
same claim as first
Natural grouping of common nucleus of operative facts
(considering time, space, origin, motivation, whether they
form a convenient trial unit)
o When P comes upon new evidence:
Rule 60 gives the court power to relieve a party of a
judgment on a number of grounds; one of these is new
evidence. It is at judges discretion and you probably wont
win if judge finds that you should have originally found the
evidence. There is also a 1 year time limit.
o Car Carriers, Inc. v. Ford Motor Company (F.2d, 7th Cir. 1989)
Asserts that transaction, not legal claim or theory, matters
when determining claim preclusion (common nucleus of
operative facts idea)
When new facts are found, court has right to presume that it
P has done his legal and factual homework, couldve taken
advantage of amendment rules
FRCO are designed to allow these claims to be brought
together (joinder) so claim preclusion provides motivation
to join them
o Heacock v. Heacock (SJC 1998)
Divorce action where Mrs. Heacock makes claims of
violence Mr. Heacock asserted against her in support of
reasons for divorce
Following divorce, Mrs. Heacock begins tort action for
abuse
When original jurisdiction did not have jurisdiction to hear
a subsequent claim, claim is not precluded.
Parties are the same, or in privity:
o Privity some sort of relationship that makes it appropriate to
conclude that that party has already had its day in court. Family
relationship is not enough to imply privity
o Gonzalez v. Banco Central Corp. (1st Cir., 1994)
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XIV.

Facts: Bank selling swampland in Fl. to people in Puerto

Rico for development. Rodriguez Ps file action first.
Gonzalez Ps try to join claim later and are refused. Ps
ultimately lose. Gonzalez Ps file lawsuit against same Ds,
allegations are similar as Rodriguez Ps Ds claim that
claim should be dismissed because of privity
Court: There was the same claim (arose common nucleus of
operative facts) but parties were not in privity.
Court says that caution is needed when determining prvity
so no one is denied their day in court (person against him
preclusion is asserted because of privity should have
already had day in court)
Privity based on Substantial Control or Virtual
Representation:
Substantial Control: P had opportunity to call the
shots in prior litigation (make strategic decisions) so
that other party essentially had day in court. Must be
from practical, not theoretical standpoint.
Virtual Representation: Equitable theory, determined
on case by case basis.
(1) Identity of interest
(2) Must have actual or constructive notice of the
earlier litigation.
(3) Must have some kind of relationship of
accountability. (Trustee/Beneficiary, Corporate
officers, Some familial relationships, such as in
bankruptcy proceedings)

Issue Preclusion (Collateral Estoppel)

Collateral estoppel/issue preclusion: Once issue has been adjudicated
between two adverse parties, that issue cannot be relitigated in another
suit between same parties
Elements:
o Are the issues the same?
Analogous to transaction/occurrence
o Was issue actually litigated?
o Did litigation go to final judgment?
o Was issue on which preclusion was sought essential to final
judgment?
Issue preclusion can be invoked even if one of the parties wasnt
bound by prior litigation
Mutuality
o Federal and states have body of common law with respect to
preclusion, so issue of whether mutuality is required is matter of
state law.
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o Trend is that mutuality is not required (including in federal court)

Issue preclusion usually results in partial summary judgment

Policy: Efficiency, consistency
David P. Hoult v. Jennifer Hoult (1998)
o Father convicted of sexually abusing his daughter. Her father later
sues her for defamation because she reported rape. Daughter
argues that issue preclusion should apply, saying that he cannot say
that he did not rape her when jury implicitly found that he did.
o Issue: Should issue preclusion apply when there was no explicit
finding that the father raped his daughter?
o Court: Issue preclusion can still apply if finding in first suit was
central to the finding. (Central is party could have prevailed or lost
because of the outcome of that issue)
o Can be determined by evidence, testimony
Jarosz v. Palmer (Mass. 2002)
o Business relationship where former partner sues lawyer that the
company used claiming breach of attorney-client privilege
o Court says that issue preclusion does not apply because issue
wasnt essential to underlying claim of original litigation on which
judgment was entered
o Policy of requiring it to be central to judgment: May not have been
fully litigated, may not have received full attention of court, etc.
Parklane Hoisery Co. v. Shore (U.S. 1979)
o Deals with non-mutual, offensive issue preclusion: Can a litigant
who was not a party to a prior judgment use the previous judgment
offensively to prevent D from re-litigating issues resolved in
earlier proceeding?
o First action was seeking injunction decided by a bench trial.
Second action was a damages action, so there was a right to a jury
trial
o Issues:
Can preclusion be used when Parklane would be prevented
from having jury trial with respect to 7th amendment?
Mutuality: P wasnt involved in first lawsuit, but is trying
to use issue preclusion against D who had issue decided
against him in prior action. Should offensive use of issue
preclusion be allowed?
o Offensive vs. Defensive issue preclusion:
Supreme Court has already held that mutuality not needed
for defensive use of issue preclusion, as decided in
Blonder-Tongue, but court should still be conscious of
unfairness
Defensive can be routinely invoked without there being
problems with denying anyone day in court
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Court is hesitant to allow offensive, non-mutual issue

preclusion
Problems with offensive:
Wait and see problem: Would result in more litigation,
as Ps would be able to wait and see what happens in
earlier litigation because success of one P in earlier
litigation would allow later Ps to piggyback off of
decisions
Unfairness to Ds: There might be a lack of incentive to
vigorously defend claim in earlier litigation; there
might be more expansive discovery opportunities in
second litigation
o In these cases, there is a tension between desire for efficiency and
finality and respect for jury
o Rehnquists dissent:
Says that it is unfair to apply doctrine of collateral estoppel
where party who is sought to be estopped has not had an
opportunity to have facts determined by a jury
Focused on 7th amendment right to a jury
o Approaching non-mutual issue preclusion problems:
Is action a defensive or offensive one?
If offensive trial judge should use discretion, asking:
Would offensive be motivated by wait and see P?
Could P have easily joined in first lawsuit?
Would use of preclusion be unfair to Ds, considering
additional procedural opportunities, lack of incentive in
first action?
Inter-jurisdictional Preclusion
o Preclusion can operate between state and federal court, between
criminal and civil, between state courts
o State to State:
Full Faith and Credit Clause Art. IV, Section 1
A subsequent court must ask itself what preclusive effect
the judgment would have in the state where the judgment
was originally had.
o State to Federal:
Congress enacted statute that does same thing as the above
FF&C clause does to states section 1738.
Federal court must ask the same thing as the state court.
o Federal to State:
Art. IV, Section 1738 dont apply. This is an area where
federal common law controls.

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Supreme Court developed rule as to what effect federal

courts rulings preclusive effect is. It depends on whether it
is federal question or diversity.
Claim and Issue Preclusion Problems
o *A and B have a contract. B agrees, every June, to clear timber on
part of As land. Contract is for five years. B performs in first year.
Second year, he doesnt perform A sues for breach of contract.
B says that at time contract was made, he was a minor and
therefore couldnt enter into contract. Court says B was old
enough to enter into enforceable contact judgment for A. Next
year, B fails to perform again. A sues again and B raises same
defense of minority. Does A have to relitigate this issue?
Resolution of decision was central to first judgment A
can say that issue need not be re-litigated.
o Ms. Podros was driving Jeep and she makes a left turn, rolling onto
Warrens car. Warren finds out Podros illegally altered car, that
Lowell police officers had stopped her and released her for driving
under the influence. Podros was already found guilty of modifying
her Jeep. Warren files personal injury action in federal court
against Podros, Lowell police officers who stopped her, ultimate
auto, and city of auto. Is there any ground to say that Warren is
collaterally estopped from litigating this issue?
This is offensive, non-mutual issue preclusion
Is there a wait and see P problem?
Nohe couldnt have been party to first suit
Is there any unfairness to Do in asserting non-mutual issue
preclusion?
State met its higher burden in criminal case, so there is
no problem with that in allowing issue preclusion
Perhaps D didnt litigate claim as furtively as possible
o 1. No claim preclusion because different transaction.
New facts that gave rise to new claim.
Other finality doctrines that might apply even though 2nd
claim wouldnt be precluded?
Issue preclusion might apply
Stare Decis (if legal ruling about what law meant),
precedent would apply in second case)
o 2. City of Cleveland Ps lost sex discrimination lawsuit. Can they
bring a second lawsuit alleging race discrimination?
Claims came out of same nucleus of operative facts,
selection process they are claiming about is same. Parties
are same. Race discrimination claim could have and should
have brought action in first they cannot bring second
action

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o 3. Ms. Burrell (owner of Jeep) files lawsuit against Randall Dee for
property damage against Jeep and recovers for $2000which is
the maximum that can be recovered in small claims court. Three
months later, she files in Superior Court for more substantial
damages for physical injuries.
She had choice where to file first claim she shouldve
brought in both claims in superior court
o 4. Carpenter filed in superior court against Lowell for failure of
police officers to warn of modifications. Case dismissed because
of statute that says that municipalities cannot be sued because not
responsible for its employees. File judgment, no appeal. Later,
statute overruled saying municipalities could be sued. Can she sue
again?
No. There was a final judgment on the merits. It was
decided under law at the time.
Rule 60(b): provides for relief from judgment under range
of circumstances because of newly discovered evidence,
among other reasons
Exam Taking:
-Dont make conclusory statementsshow how conclusion was reached
-My advice to me: If you think about broad idea (joinder for instance), write it!!
-Make checklist (look at study guide) to figure when and in what order rules apply
-Referencing cases: in order to distinguish
-Cite rules and statutes
-In case of wrong answer, say what would happen if other outcome at previous step (i.e.
what would happen if rules werent in direct collision)
-100 mile bulge: Facilitates impleader when court house is within 100 miles of court
house

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