Professional Documents
Culture Documents
Plausibility Test Twombly phone conspiracy says you must invoke a law; Iqbal couldnt prove racial
discrimination
8(d) alternative claims are ok -> might not know details ahead of time
3. Answer/Motions in response to a complaint
D has 2 options (2 different documents) to respond to a complaint:
R12(b) Motion to dismiss comes first:
7 exceptions have no reason
12(h) Waiving Defenses
o NEVER lose lack of SMJ defense
o Can lose defenses 2-5
o Can bring up failure to join under 19 and failure to state a claim even at trial
12g Joining Motions: can join as many as you want, but you only get 1 shot at motions that were available to
you; thus, if you 12e move for a more definite statement, failure to state a claim was not available to you
REMEMBER R7 A motion is NOT A PLEADING
R8 b +c Defenses in Answer
8b - factual denials -> if you dont deny, its admitted
o can deny part or all of a claim
o can say you lack enough info to know if claim is true (is in effect a denial)
8c Affirmative defenses -> even if P is right, I am not liable
MUST STATE ALL DEFENSES IN ANSWER, or they are LOST
Answer must be more specific than Ps complaint trying to identify the issues in contest
D only responds to what P already identified
o Specificity of the answer depends on specificity of the complaint
o Reason to give more specific complaint = discover more w/the answer
Other Options:
12e motion for a more definite statement (D uses when not enough details in the complaint)
12c motion for judgment on the pleadings (P uses if Ds answer is weak)
12f motion to strike; little brother of 12c; P uses to get rid of nonapplicable points
When P receives the answer -> does nothing unless court orders a response (R7)
4. Counterclaims = in the Answer
13a Compulsory: must state or you lose the right to bring it to court IFF:
1. arises out of same T/O
2. AND dont have to join a party over whom no jurisdiction (no personal or supplemental J ******COME
BACK
13b Permissive = any claim you have against other party that is not from same T/O
R42 court can choose to try them together or separately
Why do it? In case accused of them being compulsory later on and lose the claim
13g Crossclaim = may state against a coparty; MUST be same T/O
**********************COME BACK TO THIS
Same T/O Test (Williams Adultery)
1) Same cause of action (c of a never mentioned in FRCP) on/off switch
2) Same Evidence/Facts and witnesses
want to join CC for efficiency dont want to bring all same witnesses in twice
BUT, for justice, might want separate trials if witnesses say Williams has a bad rep for sleeping
around, jury in trial #2 might believe he did sleep w/Robinsons wife
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3) Logical relation very fuzzy standard; its actually an experiential relationship courts like to try certain
claims together
5. Amendments R15: Can amend any PLEADING: Always ask 2 questions:
1. CAN I AMEND?
I. 15a before trial as a matter of course
i. w/in 21 days after pleading OR
ii. **IF responsive pleading required (i.e.- youre waiting for an answer), 21 days after the
response is served/or R12 motion earlier; i.e if D moves, you now have 21 days to
amend your complaint; if D then serves an answer later, the 21 day period does not start
over
iii. OR, if parties consent or court gives leave should do so freely; freer = earlier
II. 15b at trial
i. If evidence is presented that is not w/in the pleadings SURPRISE evidence (protect
yourself w/good discovery!)
ii. UNLESS, will prejudice the respondent opposing the amendment respondent wont be
able to respond w/own evidence effectively
iii. After trial, conform pleadings to the trial we had
2. DOES IT RELATE BACK? (and thus you can backdate it)
I. Law w/applicable SOL allows relation back OR
II. Same T/O in pleading OR
III. If you want to change the D in your pleading, must have:
i. same T/O AND
ii. new D knew that originally named D was served AND that, but for mistake, it knew or
should have known the action would have been against him
new D in amendment must have known about the suit w/in the SOL
If not, new D can claim SOL as a defense
To avoid amendments:
1. Less specificity in original complaint/more ambiguous pleading: they were negligent
2. Discover find out facts beforehand and amend earlier
6. Disclosure & Discovery
First, you have a 26(f) Conference of the Parties Counsels make a discovery plan and submit it to the court
26(a)(1) Mandatory Disclosure
1. Witnesses/anyone you are going to use
2. Documents youre planning to use at trial does not include those you might use
3. Damages and how you computed them
4. Insurance that might cover you
(2) Expert testimony and written report of their opinions, qualifications, and compensation
(3) evidence you may produce at trial
EXCEPT: Anything to impeach/catch someone in a lie
Discovery proceeds w/cooperation of the parties. Court isnt involved unless theres a problem (or R35 motion)
Device
R30
Deposition on
Oral Questions
Subject
Any
Person
Alternative
Tactics
For non-parties
For parties can ask followup Q (cant in written depo)
Confrontational atmosphere
hope someone will
Use at Trial/Supplement/Court
Limits
R32: Use at trial IFF Party was at
the depo or had notice of it AND as
its ok with FREvidence
2) To impeach someone
3) A PARTYS DEP CAN ALWAYS BE
crack/expose lies
R31 Deposition on
Written
Questions
R33
Interrogatories
Any
Person
Only
Party
Deposition
R34 Request
for Documents,
entry onto land
Only
Party
Deposition;
R45
subpoena
duces tecum
R35 Mental
Physical Exam
Only
Party
ON
MOTION
Only
Party
R36 Request
for Admissions
Cheaper
For less important witnesses
3. 34 Production Request
4. 36 Request for Admission
R30 all parties must agree to a deposition; otherwise you have to get courts permission
Courts leave also required if more than 10 depositions under 30 or 31; OR if the same deponent has
already been deposed
Must give all parties NOTICE of who you want to depose and if youre serving a duces tecum
Must object at the time of depo (or lose right at trial) but the depo carries on UNLESS you move to end
it
R33 You must object with specificity; no more than 25; can ask application of law to fact
R36 if you attempt a motion not to discover, you will probably fail; privacy trade-off for justice the info
enables
R37 Motions and Sanctions for failing to comply w/discovery or disclosure
Party can motion to compel discovery must show you tried to get the other party to cooperate
Can move for 26(a), 30, 31 33 or 34; not 36 why? If a party does not respond to a request for
admission, it is assumed admitted
Can be sanctioned for failing to comply w/above orders or 35 (because its a motion and thus ordered) or
26(f) conference
R16 - End Discovery w/a Pretrial Conference not mandatory; court ordered. Parties should know when
Discovery is coming to a close.
includes summary of evidence, witnesses, etc. Want to facilitate settlement and the judge may ask for
evidence upon which to rule JMOL or SJ.
Discoverys Relationship to the Pleadings
Deposition cannot ask about the law; only about facts (see Bradenberg must answer any factual basis for
your claim)
Interrogatory can ask about theory of law applied to the facts (R33(a)(2)) BUT not about pure legal theory
can ask Explain the manner in which I violated the Constitution (OBrien)
7. Pretrial Termination
1) R12(b)(6) Failure to state a claim
2) R12(c) Motion for Judgment on the pleadings
P moves (D would use 12b6)
o Must accept as true everything D says:
8b Ds factual denials
8c Ds affirmative defenses
Complaint only the facts D admitted
o NO LEGAL DEFENSE use if D accepts all relevant facts of the case
3) R12f motion to strike kill off some of Ds answers defenses
In all 3, the movant must accept all of opposing partys statements as true
No need for a jury; no need for discovery = NO FACTUAL DISPUTE
R56 Motion for SJ
Either party on all or part of the claim; until 30 days after close of discovery
Standard for granting: if affidavits show there is no genuine issue as to any material fact and the movant is
entitled to JMOL
Respondant opposing the motion for SJ must set out specific facts in controversy cant rely on pleadings
56(e)(2) added in 1963 (see AA v. Ulen)
If move for partial SJ, court decides what facts are not at issue including damages and relief and specifies
them as settled in the action
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If nonjury trial -> 52(c) Judgment on the Partial Findings is the JMOL equivalent
50(b) Renewed Motion for JMOL = if you dont JMOL during trial, you lose the right to do so after trial
Most parties will JMOL at the end of evidence to preserve the right
59 New Trial = doesnt grant the judge more power; its just taking the case away from this jury; not denying
the right to a jury trial
50(a) JMOL Standard for Granting Reasonable Jury Would not Find Evidence for respondant
**ANY FACTUAL DISPUTE MUST GO TO THE JURY
Hypos:
1) P must prove A + B + C -> no evidence on C
Motion for JMOL on C is granted
2) P must prove A + B + C; A + B proved, some evidence of C, but its hard to decide definitively
Judge must decide what a reasonable jury would find the degree of evidence
Look to the 3 Rules of subjectivity:
1. Reid evidence equally in 2 directions -> party w/burden loses
*Only when respondant is party w/burden P has burden and D moves for JMOL
2. Cruzan mere disbelief of evidence evidence in support
3. Incredibility Doctrine
3) P gives A + B yes, some evidence C; D counterevidence = A, B, and C is overwhelming disproof
DENIED determinations as to whether the witnesses are telling the truth are always for the jury
4) A, B, and C all have evidence given; D rests; P moves for JMOL Can the jury just believe Ps witnesses?
COME BACK w/Burden of Proof
10. Judgment
R58 Entering Judgment = very specific/formulaic for specificity = we need to know exactly what happened in
judgment/what verdict the jury returned; need the date set in stone because there are time limits to appeal, grant
new trial, etc.
3 parts of a judgment:
1) Relief = Awards; R54(d) get the relief you are entitled to/what you deserve may differ from the
pleadings, unless it is default J
i. Money = Law
ii. Injunction = Equity
iii. Declaratory = Equity?
2) Enforcement - R69 $ enforced by writ of execution; standard is state law, i.e. state enforces law
a. R69, winner can use discovery to find out where loser had assets
i. R65(d) court enforces a PI or TRO, i.e. court enforces equity
3) Costs P should get reimbursed for all except attorney fees (although civil rights cases are an
exception)
1, 2, and 3 are all at courts discretion
R57 Declaratory Judgment
What are the limits? It is kind of like a provisional remedy because people use it to prevent future
litigation
Court could say you need to wait until you have an injury-in-fact (see Longshoremens) OR preventing
accrual of avoidable damages is what declaratory relief is for (see De Bothezat fans)
How can we reconcile De Bothezat and Intl Longshoremen?
Easier to decide private K law than constitutional law
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Distinguish by the degree of harm would give declaratory judgment in a criminal case because the
harm would be much worse than in a civil case; or degree of threat De Bothezat clearly threatened
w/a lawsuit
Degree of adversariness what is concrete at this point? If we let it play out, well see the concrete
results -> Proximity to controversy; De Bothezat was 1 step closer to controversy
o In Longshoreman, court waited until there was 1 person with real harm
11. Appeals
Order: District Court -> Circuit Court of Appeals -> SCOTUS
Regulated by 28 U.S.C:
1291 Final decisions can be appealed
Final decision final judgment; a final decision is narrower technically, you can appeal any decision
made on an issue -> When you appeal, you are saying 1 decision infected the entire judgment of the case
i.e. the judge wrongly denied my motion to admit this evidence, and thus I lost the entire case
o Important to identify which decision is being appealed
BUT, usually, all issues must be decided before you can appeal; have to wait and appeal all at the end
for efficiencys sake -> what if you win in the end, i.e. the decision you would have appealed did not
hurt you?
R54b if multiple claims, a judge can release 1 claim w/a final judgment; it can then be appealed
EXCEPT: Interlocutory SJ on liability can be given separately before damages are settled (56(d)(2))
Usually dont allow appeal of non-final judgments
1292 Interlocutory orders can be appealed = primarily PI
(a) PI from R65, but they are seldom successful
(b) District Ct. asks for a question of law AND Ct. of App. accepts
1254 - Ct of App -> SCOTUS
Writ of certiorari OR
Certified questions (like 1292(b) requirements)
No final decision requirement some cases might need speeding up in the national interest
1257 State Ct. -> SCOTUS = only the highest court in the state; must have FQ or a state law is repugnant to
Constitution, federal statute, or treaty
Direct appeal = to the higher court; i.e. circuit ct. -> SCOTUS; on the merits of a judgment, alleging errors of
law or fact
Collateral appeal = to a court based on validity of a previous judgment; i.e. states highest ct. -> SCOTUS
alleging the previous judgment was not valid
II. Federal, State, and Other Nations Courts: Choice of Courts and Law
A. Subject Matter Jurisdiction and the Potential for Multiple Forums
1. Article III and Statutes: FQ Statute
*Can you get in to federal court?
State courts are courts of general jurisdiction they can hear anything, including what the federal courts can
hear; jurisdiction is concurrent
Federal courts are courts of limited jurisdiction: Limited by Art. III 2 1
1) Arising under the Constitution, laws, treaties of USA -> FEDERAL QUESTION
2) Ambassadors and Public Ministers (fed. bias)
a. ORIGINAL J no stripping
3) Admiralty and maritime
4) US federal bias -> even if state law, goes to federal court when the US is a party
5) State A v. State B -> even if only state law (anti-state bias); preventing state judicial wars
a. ORIGINAL J no stripping
6) Diversity of Citizenship CitState A v. CitState B
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1+3 are about topics; 2, 4-6 are about parties = all are topics of federal concern
2+ 5 = original J in SCOTUS -> cannot be stripped
All the rest are appellate, and thus subject to exception
Congress makes the lower courts. The 1 st were set up in Judiciary Act of 1789 to collect tax $$.
Courts of Appeal depend entirely on existence of lower courts.
District Court Jurisdiction Comes entirely from 28 U.S.C.
1331 Federal Question
Civil actions arising under same language as Constitution
1337 Commerce and Antitrust
1338 Patent and Copyright, trademark
o an example of when Congress has given Art. III jurisdiction exclusively to the federal courts
states cannot hear Patent claims
1343 Civil Rights
All of these statutes are redundant given 1331 FQ used to have a $ amount requirement; they kept
these in case the $ amount is put back in
1332 Diversity of Citizenship
$75,000 amount-in-controversy requirement
o under goes to state courts Congress wanted to limit workload of district courts
Relationship between Constitution
and Statutes:
Creation of lower courts is
discretionary -> Congress can take
away SMJ or make it exclusive
1331 FQ Jurisdiction
Well-pleaded Complaint Rule:
FQ must arise in the complaint (not
Exclusive: Congress
can make Art. III.2.1
anticipated in the answer)
exclusive (see 1338
Patents)
**P is master of the complaint
see Mottley: the FQ arose in
an 8b affirmative defense,
even though they tried to
put it in the claim
SCOTUS interprets statutes different than the Constitution
o Can remove to federal court if a constitutional question arises in the answer (just not a federal
statute question)
o Art.III applies to all federal courts
o 1331 only applies to district courts; statute is interpreted more narrowly
Formalism v. Realism youre stuck in state court if the constitutional question arises
later and cert is denied
2. Federal Diversity and Removal Statutes 1332 and 1441
1332 Diversity of Citizenship main purpose is to remove bias to out-of-stater in state court
Baker
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Moves to IL after arm shot off in OK citizenship is established at the time the claim is filed, not when
the events occurred
Its ok to move w/the intent of creating diversity
Test of Citizenship:
1) Physical presence/an abode
2) Intent to stay (the absence of a present intent to leave)- Decided by the circumstances and is objective
COMPLETE (state) DIVERSITY required narrower interpretation than Constitution, just like well-pleaded
complaint rule
Complete Diversity Situations: INDIVIDUALS CANT HAVE DUAL-STATE CITIZENSHIP
1) baby is born w/no intent to remain = same as parents cuz a baby is usually w/its parents
a. Problems: divorce/joint custody; transitory students
2) Wife = w/husband in the same home
a. Statute has not changed, but you cant argue this one, so its dying out
3) Traveler = keep old place of citizenship until you establish a new one -> always have 1
4) Lived in MO -> moves to London indefinitely
a. HOLE in the statute: a US citizen w/no state citizenship
i. Could apply R#3 action commences when filed; thus they have no state citizenship at
that time
5) P Md v. D Foreigner who is a resident alien of MD -> no diversity; US law determines state citizenship
a. State citizenship national citizenship
Legal representative = only has same citizenship as the person they represent (dont want to create diversity by
assigning an out-of-state representative)
1332(c)(1) = Corporate Citizenship -> corporations CAN have dual citizenship
1) State in which they are incorporated
2) State in which the Principle Place of Business (PPB)
a. Adding this duality is constitutional because it subtracts SMJ from the federal courts; there will
be fewer complete diversity cases
b. PPB Test: Kelly ruled activity center; Hertz (2010) overruled in favor of the nerve-center
where the decisions are made
i. Is the concept of PPB pass? What about decisions made on Blackberries/remote locales?
ii. Or is it best to have a uniform legal standard for now?
c. If you sue an Insurance co. = citizen of the co. they insure and where they are incorporated;
fewer federal diversity cases when suing an insurance co.
1441 Removal transferring a case from state to federal court (no removal from fed -> state); 1% of cases;
you remove to the district court in the same state where state court action is pending; P loses more often in
removed cases
Ds choice; veto Ps choice of forum all Ds must agree to the removal
Youre only in state court if:
o No original Art.III Jurisdiction (FQ or Diversity)
o There was Art. III J, but D doesnt care
o Filed in Ds home state
Much of Federal Ct. Jurisdiction is not concurrent because it can be removed
(a) District Court must have original Jurisdiction (incorporates the SMJ statutes)
(b) If FQ is the original J, no other requirements for removal; FQ = REMOVABLE (if FQ in well-pleaded
complaint, that is, or constitutional question)
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(b) If diversity is the source of jurisdiction, the state court cannot be Ds home state (theres no bias against
him there)
(c) If FQ claim is joined w/non-removable claim, can remove the entire case; District Ct. decides whether to
keep state law claims or send them back to state court (see Supp. J??)
a. NOTE: This does NOT apply to diversity cases; P can use it as a tactic
3. Choice of Forum- 1391: Can you serve D?
1391 Venue
(a) Only 1332 Diversity Jurisdiction: When action is brought
(1) district where any D resides, if all Ds reside in same state (reside citizenship)
(2) events occurred or property that is subject of the action is
(3) FALLBACK: If neither 1 or 2 is possible, a district in which any D is subject to personal
jurisdiction
NOTE: this is only if there is more than 1 D (otherwise #1 is possible)
You may still encounter the problem of D #2 not being subject to personal jurisdiction, and D #2
could move to dismiss.
(b) Other kinds of jurisdiction FQ (1331 or other):
(1) and (2) same as above
(3) If neither, a judicial district in which any D can be found
Why no personal J requirement? Must be a forum in which to bring FQ cases.
(c) Corporations: reside in district where it is subject to personal jurisdiction at time action is brought
(d) alien can be sued in any district
R4 Service of Process Notice to D; subject D to adjudication
4(e) unless theres a federal statute stating otherwise, you can serve someone according to the state law OR
delivering the summons in-person, leaving it at Ds house w/an adult
4(k) territorial limits of service
(1) serving someone establishes personal jurisdiction over him if:
A. he is subject to jurisdiction in state court where the district court is
B. he is a party joined under 14 3rd party or 19 required joinder and w/in 100 miles
C. If a federal statute allows the service (like DECA in Cartier problem)
B. Applicable Law in Cases Involving Multiple Jurisdictions
1. State Law in Federal Court: The Erie Doctrine In Diversity cases, federal courts must follow the law that
would be applied by the courts of the state in which they sit
***A federal judge should assure the suit comes out the same way in federal court that it would have in
state court; we are talking about 1332 diversity cases
1332 = Federal Court interpreting STATE law
Procedure FRCP apply only in Federal Court
Some Federal Court law = federal case law (frcp)
*What is the difference between state law and FRCP/fed. case law?
Swift v. Tyson - 1938
SCOTUS says Rules of Decision Act laws of the several states only means state statutes. Federal courts are
not bound to follow state common law.
In absence of a state statute, do NOT follow state case law
Erie RR v. Tompkins
Tompkins was hit by a RR. If Tompkins brought the case in PA state court (where the action occurred), the
common law of PA would be the rule of decision. PA common law said he was trespassing, and he would lose
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automatically. He chose NY District Ct. under Diversity Jurisdiction (RR was incorporated in NY; Tompkins
was PA citizen). District court follows federal common law that he was a licensee, a tort, and awards
Tompkins $$.
Holding: SCOTUS reverses.
Erie doctrine:**Unless a federal law dictates, state law is supreme. Federal courts are bound by state statutory
AND common law. Federal court must apply state law to substantive questions. Federal law is ok for rules of
procedure.
Swift v. Tyson
Philosophy
Practical
Erie RR v. Tompkins
Legal/Formal
Congress and SCOTUS came together to change everything: Erie was decided the year the FRCP came out.
The difference between substance and procedure still defines federal cases.
Is the burden of proof a substantive or procedural rule?
o In City Services Oil Co., SCOTUS rules that is Bdn. Of Proof is a substantive rule.
o In Palmer v. Hoffman, SCOTUS says the burden is not in the FRCP, so federal rules dont apply.
Pre-1938
Post-1938
Substantive
Federal (Swift)
Procedural
W/in a state, THERE SHOULD NEVER BE A CONFLICT BETWEEN STATE AND FEDERAL
COURT prevent forum shopping w/in a state state-to-state forum shopping is ok; it exists because
states exist)
2. State Law in Federal Court: Modern Hanna Approach
1332 Diversity of Citizenship Jurisdiction:
2. If state law, which states law? - Klaxon rule: State in which court sits.
Congress could pass Federal choice-of-law rules which state and federal courts would have to follow
(but they havent)
1. When do you follow state law and when do you follow federal law?
#1 Potential answers:
1) Erie = substance-procedure test
2) Guaranty Trust = its often hard to tell the difference between substance and procedure
a. Anything that changes the outcome is substantive outcome analysis test
b. This gives most power to the state laws -> almost everything changes the outcome
3) Byrd 2 Part Test:
a. Is there a state package of substantive and procedural rule?
i. If yes, federal court must follow the state law
b. If there is no package, balance the federal-state interests (political, open-ended)
Hanna 1965 modern approach:
R4(e) leave at abode service of process was directly in conflict w/MA service of process in-person rule.
HOLDING:
1. FRCP 4(d) applies if it is valid under the REA
2. Look at the reasons behind Erie:
1) Prevent forum-shopping
2) Unequal administration of the law (2 rules in daily life for the in-state citizen the federal common law
on negligence v. the PA state law on trespassing (Tompkins got to pick between PA state court and NY
federal court)
1+2 are a modified outcome test takes the degree of difference:
1) Forum shopping: Law must have a substantial effect; will the attorney notice and choose federal court?
(Ps eyes)
2) 2 rules to guide daily life if a reasonable person knew about the law, would they change their conduct?
(Ds eyes)
3) Erie doesnt matter its only applicable when there is no direct conflict of laws
a. FRCP/REA If REA is constitutional, then the FRCP are valid
b. Art. I 8 = power to create REA, so its Constitutional
c. FRCP wins because of Supremacy Clause
Hanna Test of if a law really regulates procedure: first of these cases that uses an actual FRCP, previous
always looked at conflict with judge-made case law.
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Is there an FRCP
directly on point/in
conflict with the
state rule?
a) is it valid under
the REA?
b) Is the REA
Constitutional (yes,
cite Hanna)
Why Test #1? Uniformity is more important than forum-shopping with respect to the FRCP.
Why not make common law frcp binding? Court doesnt want to give COMPLETE preemption by federal law
(only partial).
Modern cases still discuss the substance/procedure distinction, but it is in relation to Hanna not as black and
white as it used to be discussed.
Harlan dissent in Hanna Everything should be the frcp test -> allowing all FRCP creates Swift problems and
blows apart state packages. Now, state legislators have to know that an FRCP wont interfere when they create a
state package.
Walker shows the tension in Hanna SCOTUS rules that Hanna doctrine does not apply; R3 is not directly on
point with the state SOL law. We dont want people going to federal court under diversity to take advantage of
FRCP supremacy. An action based on state law should not continue through the federal court system when the
state statute would have ended it.
Problems in Hanna:
1) Application Difficult: Takes a lot of wisdom to know part 2, if it would change someones behavior
2) Difference between FRCP and frcp is fuzzy COME BACK
3) State packages can be blown apart there are lots of them, which pressures judges to decide if an FRCP is
really on point
3. Federal Law in State Court: Reverse Erie
1) Federal Law in State Court
Federal Statutes
Federal common law: Art. I 8 = if Congress can create it, it can be federal common law; gets
supremacy treatment over state law
2) Fed. Common Law made -> can be displaced by later federal statute; its provisional
3) Can state apply its procedural rules to those actions?
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Reverse-Erie:
1) If Congress explicitly passed a statute making it applicable in state court (preempting state law) -> state court
must follow it
2) If not, state court decides/interprets the law itself (unless SCOTUS has ruled on it)
State courts do not make federal law; they merely apply it. The problem is sometimes state courts will have to
guess how SCOTUS would interpret a federal law. State and federal courts are simultaneously interpreting the
same law differently.
**Erie and reverse-Erie: court should apply the other sovereigns existing law as it thinks the other
sovereign would (apply, dont create law, of the other jurisdiction)
C. Mixed Federal and State Claims and the Expanded Federal Forum
1. Multiple Claims and Parties: Original Jurisdictional Response
If a district court has no statutory SMJ over a claim, we can find SMJ:
Old terms: Plaintiff Adding J = Pendent Jurisdiction; Defendant Adding J = Ancillary Jurisdiction
When is there supplemental jurisdiction?
1. What is a case under the Constitution? 3 state claims + 2 federal claims: are they all 1 case or separate
cases?
CNOF CASE TEST: Common Nucleus of Operative Fact (Gibbs) all claims must be (1) same
evidence or (2) logical relationship/experience. Rejects cause of action in T/O test.
If P seeks damages on a FQ, the court takes all claims. If the FQ claim is dimissed, the court is stuck
w/only state claims. Court has discretion to take claims or not.
o This was NON-STATUTORY JURISDICTION. Congress had not given the courts this J.
Supplemental J is convenient and sometimes necessary (when you cant sue someone w/out suing
someone else too)
2. If you claim theres a FQ, is there really a FQ claim? What are limits on arising under in 1331?
A claim is a FQ if the plaintiff states his claim in terms of a FQ Plaintiff is master of the complaint
EXCEPTIONS: 1) Ps intending to establish fed. SMJ never invoked because hard to prove; 2)
Frivolous (dismissed under 12(b)(6) and cant sue again under res judicata) or insubstantial claim
(12(b)(1) dismissal can sue again on; look up case law to see if the claim is foreclosed by precedent;
otherwise, its substantial and ok)
2. Modern Supplemental Jurisdiction: Old non-statutory J is codified in 28 U.S.C. 1367
Can you sue a 3rd party? Different question than does the court have SMJ.
1) CNOF test.
2) But, if original claim is based on Diversity jurisdiction -> look to 1367.
R14 3rd Party Claim = P v. D -> impleader (liable to D) 3rd party practice (T/O required in rule) -> D brings
in, usually D says, this implead party is liable to me/should pay the $ that Im being sued for
R19 Required Joinder = multiple parties, multiple issues (required unless SMJ or service of process cant be
met)
R20 Permissive Joinder = multiple parties, multiple issues (same T/O in rule)
R24 Intervention = a party wants to join as P or D
Exceptions in 1367(b)
R13(g) Crossclaim to a coparty = P1 and P2 v. D -> Ps start suing each other (same T/O required)
R13(a) + (b) counterclaims (T/O required in a but not permissive b)
R18 Joinder of Claims = same parties, multiple issues
R22 Interpleader = 2 people claiming rights to 1 fund; P v. PP 1 and PP2 (punitive plaintiff)
R23 Class Actions; P or D can be the class
15
Is there an exception in
1367(b) & Diversity
would undercut? No ->
Supplementary
Jurisdiction exists.
3rd Party D
Intervenor D
16
Law
Formalism
Rigid
Equity
Fluid
More just but
unredictable
R54 get the relief youre entitled to (not what you requested) -> doesnt matter in the pleading; well
get to the judgment later, whether its $ or equity
How do you decide which claims are at law and which in equity?
STATES: choose their own. 7th Amendment doesnt apply to them
FEDERAL: Quasi-historical test of 1791 (when Constitution was passed): If it would have gotten a jury in
1791, it gets one now.
Law = witnesses went to the jury
Equity = only depositions were heard (no jury)
In 98% of cases:
Law = $ damages
Equity = injunction to do something
If you request an injunction, but theres an adequate remedy at law -> sent back to law court
2. Jury Trial in Mixed Cases
Problems: (1) L + E claims are joined in the same case and (2) facts in common to L + E claims
R38 7th amendment right to jury trial is preserved
(b)demand a jury trial w/in 14 days of last pleading about issue
(c) specify the issues you want heard by a jury
(d) right can be WAIVED if you dont demand properly
R42(b) Separate trials = judge can choose the order in which to hear claims
4 Historical Approaches at the State and Federal Level:
1. Divide the 2 claims -> 2 separate trials
Potential for 2 different findings
2. Equity 1st and the judge cleans up law claims by deciding same way as E claim was decided
3. Law 1st -> just must then decide equity claim as jury did in law claim
This is current federal approach the jury, in effect, decides both claims
4. Essentially is the claim more law or more equity? -> judge decides how its tried
Post-1938 Federal Approach: Beacon rule
**In cases w/both law and equity claims based on the same facts, try the legal claim first to preserve right to
jury trial
Issues of fact should be heard first to preserve right to jury trial
This changes the scope of the equity claim: FRCP provide more adequate remedies at law (maxin #2);
You can always deny a counterclaim
Dairy Queen: R53 masters means that many equitable claims actually have a remedy at law. An accountant can
assist the jury, so equitable accounting now has a remedy at law. But, justice Black is assuming the FRCPs
are law remedies -> R2 has abolished the distinction, so how do we know?
Other Issues: Historical movement has always been to move more cases from equity to law, leaving less up to
the discretion of judges and more to juries.
Hypos:
#1: Shareholders can sue a corporation for not taking an action it should have (ask the court to make the
corporation file a lawsuit it should have) Shareholder class actions are in equity. Court says this should be seen
as two claims: its (1) an equitable device (2) processing a legal (damages) claim. We use Dairy Queen rule
where legal claim is decided first. Should therefore be tried with jury.
18
Right to jury trial has expanded w/the FRCPs all FRCP can be used for all claims in either law or
equity
If this is right, 99% of equitable claims can be transformed into legal claims, with underlying law claim
and equitable relief claim. But this did not happen. Why not? Just because cases can be decided in law
does not mean they should be.
Judges are not trying to kill off equitable claims. Are judges right to want to preserve injunction cases
for themselves?
Hypo #2: Landowner v. trespasser. Landowner sues for legal claim (writ of trespass) but wants equitable
remedy (injunction) -> court said try the equity claim first; we dont want equity to disappear.
B. Adversariness in the Trial Process
1. Discovery and the Work Product Doctrine
R26(b)(3) Work Product: cannot discover documents and tangible things prepared in anticipation of
litigation by anyone (representative/lawyer/secretary)
CAN discover:
o 1) not expert testimony (which wont be used at trial)
o 2) otherwise w/in scope of discovery non-privileged and relevant
o 3) IFF a) substantial need, b) unable to get w/out undue hardship and 3c) substantial equivalent
unavailable by other means = these are necessity defined
Can never discover legal theories or mental impressions black it out (can only ask in R33 and R
(c) can always discover your own statement (but the other party can depose you before giving it ->
impeach!)
(5) if you are claiming privileged material, must clearly say so and describe the docs you are
withholding
Work Product Doctrine:
Opposing counsel cant ask other counsel for his work you cant be a lazy lawyer
Only discoverable if NECESSARY:
o Witnesses who cant be deposed (death, etc.), Impeached, Info hidden in attorneys files
o necessity exception means attorneys wont write anything down -> dont want to create a record
Hypos:
1) Want to discover notes between Hillary Clinton and Sec. of Interior
a. If not prepared in anticipation of litigation -> discoverable
b. If she was a counsel -> NOT discoverable
c. If you are the Sec. of Interior -> discoverable because your own statement
d. If you want to depose Hillary and ask about a meeting while she was the counsel -> not
discoverable because its the same info by analogy
i. If you are orally trying to discover whats on the document, WPD protects it
2. Production and Persuasion Burdens
Burden of Proof = 2 ideas:
1) Burden of Production for the JUDGE
a. 1 party produces evidence so the other party needs to respond or they will lose the issue
b. somewhat arbitrary who has the burden; usually if you plead it, you have the burden
c. Issue-by-issue
2) Burden of Persuasion for the JURY
a. Tie-breaker rule: party with the persuasion burden loses in the case of a tie
b. Promotes the adversary system youll work harder if you have the burden
19
Ds Endzone
P must push ball into the
middle of the field ------------
Step 1
Chateau Lafitte = too $$$
Doesnt meet a price standard
(Ds production burden)
Step 2 Persuade your jury friends
Other wines = nicely priced & taste good
- friends decide what to bring: Wine A or
Wine B? In competition -> if cant decide,
more expensive loses (Reid rule evidence
in both directions, party w/burden loses)
20
Famous Players way to get around Cruzan; jury might believe 1 part of testimony and not another ->
goes to jury
o If an employer says I dont hire women, but I didnt hire her for a different reason
RU
Subjective
What would a Reasonable Jury decide?
3 rules apply (but they are soft and depend on case):
1) Reid: equally 2 direction -> w/burden loses
2) Cruzan: mere disbelief affirmative evidence
3) Incredibility
(If party w/the burden of proof is making the motion,
be more sensitive in applying subjective rules
reverse Cruzan: no evidence evidence)
Denying a motion means the judge is reserving the option for a jury to decide an issue; the jury may or may not
rule for the respondent. The judge just thought the jury could POSSIBLY rule for respondent. R-U standard is
designed so judge wont decide issues of credibility.
Pennsylvania RR v. Chamberlain
D has production burden to show Ps negligence.
P has 3 witnesses testify to no collision. This could be 400 it doesnt matter because people lie.
**credibility is for the jury
D has 1 witness who says I heard a crash and looked. This evidence is an inference he didnt see the crash
this led me to believe A. Ps evidence is directly to the contrary (non-A happened).
-> this reasoning is rejected because the strength of inferences varies; we infer all the time. Expert testimony
relies on inferences.
21
Allowing direct non-A to disprove inferred A assumes non-A witness are telling the truth -> jury should resolve
issues of credibility
R = D saying he saw the crash U = he was at a 3 degree angle (incredibility: couldnt have seen from this angle)
R U = Motion granted. Summary Judgment for P
Granting Trial Motion Examples
1. P wants to prove D was negligent. P says D drove 65+. D says he drove 55. Both move for JMOL.
Ps Motion (D is respondent)
Objective
Rs evidence = 55
No U
Ds Motion (P is respondent)
Rs evidence = 65
Subjective
Reasonable jury could believe
= motion denied
He said/she said cases (most cases) rarely reach pretrial termination. Reaction is the judge is deciding what
the decision would have been.
2. P must prove Ds negligence. D claims act of god affirmative defense snow storm blinded me. Ps expert
meteorologist says it was 85 degrees in August in Phoenix. P moves for JMOL.
Objective
Ps Motion
Rs evidence = snowstorm
U = Phoenix & August (but the
temperature is disputed)
Subjective
Reasonable jury
incredibility. Motion granted.
3. P wants to prove trespassing. 3 witnesses and D say D did not trespass. D moves for JMOL.
Objective
Ds Motion
Subjective
Cruzan mere disbelief of
evidence/witness testimony
is not affirmative evidence
Motion GRANTED
4. Subjective rules are soft rules: P is bible salesman saying man owed him $500 for a bible.
P testifies. D rests. P moves for JMOL.
R = nothing; U = everything. When the movant has the burden, we are more lax about the subjective rules.
Reverse Cruzan no evidence for D affirmative evidence in support of P
If P is claiming sexual harrassment and its her 14th case, that becomes affirmative evidence for D even if D
rests/puts on none of his own evidence.
1367 Supp. Jurisdiction: CNOF + Federal Jurisdiction over 1 claim; limitations on Diversity Cases
Notice
Prior to litigation
State Statute
Up to the limit allowed in
the Constitution (due
process)
Can choose less (some have
done for corporations)
Determining who has personal jurisdiction may determine the outcome of a case. OH will rule for OH
citizens.
Pennoyer v. Neff
Neff claims (1) OR had no personal jurisdiction over him while he was in CA and (2) he was never served
properly in the 1st case where default judgment was rendered against him.
#1 TERRITORIAL RULE: every state has jurisdiction over everything w/in its territory and nothing outside of
its territory
Territorial presence is an on/off switch
Whats in your territory?
o People (in personum)
o land (in rem)
o suits against land to get at the person (quasi-in-rem)
#2 NOTICE RULE: no limits on the person; go wherever the person goes. Limits on the property = wherever
the property is.
States were considered their own sovereigns; Territorial and Notice rules came from international law. BUT,
international law does not make separate sovereigns give full faith and credit to each others judgments.
Full Faith & Credit
1. States must give to each other Constitution Art IV I
2. Federal Courts must give to state court judgments - Statute 28 USC 1738
3. State Courts must give to federal courts Supremacy Clause
In rem and Q-in-rem did not receive FF&C in other states. The notice on the property was only w/in 1 state.
You cant sue on it again because it is property.
In Personum = can sue on again in another state.
#3 STATE STATUE: can authorize up to the limit of territorial notice (i.e.- in Pennoyer, would be w/in
Oregon)
cant do more, but you can authorize less (some states have for corporations)
23
Must have a general state statute AND a specific manifest interest statute
3. Evolution: The Height of the Structured Approach to Minimum Contacts
Hanson v. Deckla, 1958 Purposeful Availment
Bank in FL. Trust in DE. Both D and P are residents of FL.
Suit # 1) DFL sues TrustDE in FL court. FL court rules for D (wants to tax the $)
Suit # 2) PFL sues TrustDE in DE court. DE court rules for P (want to show its trusts are solid).
SCOTUS: Suit #1 FL had no personal jurisdiction over DE Trust because the trust did not personally avail
itself to litigation. All of the acts were unilateral by the dead woman she sought the trust out.
RULE: To satisfy minimum contacts, D must purposefully avail himself to litigation (seek the acts in the state).
Purposeful, in-state contacts
Worldwide Volkswagon v. Woodsen 1980
Car was bought in NY. Accident in OK. Does OK have jurisdiction over WWV who sells car parts in NY, NJ
and CT? No, it doesnt matter that the car is in the stream-of-commerce. D must have control over where can
be sued.
RULE: Did D seek any benefit from the forum state?
Theory of Minimum Contacts (and purposeful availment):
1. Protect D from inconvenient forum
2. Limit state reach dont go beyond your sovereign
Prevent OK from deciding if NY is guilty
Do what you want in your state, but youre limited to it prevent state wars
Like Erie states can do what they want: no 2 rules in daily life
*NOT to be the most convenient forum convenient for P? D? dont know who the guilty party is
*NOT D should be sued if they made a bad car part: we dont know if D made a bad part or not
4. Evolution of Personal Jurisdiction: Look at the Structured Approach 1st, but Organic Approach can overrule
Specific Jurisdiction = minimum contacts/extraterritorial -> long-arm statutes
General Jurisdiction = Corporation is incorporated there/PPB, at home (Milliken domicile)
MODERN APPROACH TO Minimum Contacts and Specific Jurisdiction
Burger King v. Rudzewicz 1985
Specific Jurisdiction/Minimum contacts exist if:
1st Step: STRUCTURED APPROACH (and new definition of purposeful availment)
1. Stream of commerce: 2 views this debate still exists:
a. You KNEW; your purpose was to sell to that states market (harder to get OConnor)
b. Awareness that it your product could get to that state (easier to get specific jurisdiction Brennan)
2. Selling/distributing/hurting someone -> voluntarily initiating contact w/forum state
3. Reaching out to forum state tv ads, etc.
2nd Step: If you go through the 1 st step and do not find minimum contacts, look to ORGANIC factors.
Center of Gravity Test: All players involved P, D, States interest (could be multiple states)
Supporters: No more on/off switch need variability to get right results in each situation
Criticisms: 1) Organic is a very indefinite approach equity maxim: justice varies w/length of foot
2) you dont know if the 1 st court had personal jurisdiction until you get to the 2 nd court
Asahi Metal Industry 1987 Debate to Minimum Contacts
25
The stream-of-commerce debate still rages on under the minimum contacts structured approach:
Yes, jurisdiction if you are selling a product which you know will move interstate. (Brennan)
No jurisdiction if you sought no benefit from the forum state. Yes, your products went there, but there
wasnt really personal availment. (OConnor)
Look to organic as a tie-breaker: reasonable or unreasonable to make D litigate in that forum?
Casual/isolated
Single
Continuous but
Substantial or
Incident
Act
limited
pervasive
|--------------------|-----------------------|-----------------------------|-----------------------|
No jur.
Jurisdictional
No jur.
Consequences:
Specific Jur.
Specific jur.
General Jur.
(claims dont have to arise from the acts if they are general?)
Personal
Jurisdiction
Consists of 3
Parts:
1. Territorial
Presence
(substantive
due process)
Persons
=Pennoyer
On/Off switch.
Are you in the
state or not?
Citizen of the
State (not
diversity
citizen->
"reside")
2. Notice
(procedural
due process)
3. State Statute
Showing desire to
go to extent of
Constitutional right
(Min. Contacts =
Constitutional
Standard)
4 Supplements:
Consent
(driving,
insurance
policy, etc.)
Transitory
Presence
(1 forum at all
times)
Minimum
Contacts Test ->
Look to BOTH
approaches
**Minimum contacts is taking over the other supplements. It applies to both people and corporations (Kulko).
They are contacts when the acts occur (not when file claim).
R4(k)(1)(A) Federal courts have personal jurisdiction if state in which it sits has personal jurisdiction
26
2. Structured
Approach
NOW (1) is
purposeful
availment - =Did D
seek a benefit from
the forum state?
(2) claim arose
from acts
1. Organic
Approach
traditional notions
of "fairplay" and
"substantial
justice" (intnl Shoe)
- if corp. benefits
from being in a
state, they can be
sued there
Center of gravity
test (Burger
King)
Res judicata does NOT bar a claim based on the same kind of actions, but the acts occurred after
original claim was filed. See OBrien v. City of Syracuse trespassing.
Only serious issues of public policy can override res judicata
o Harrington sexual harassment Ct. of Appeals says she should have tried to bring the claim
even though it was not available; try to overturn the case law -> R11 sign the pleadings if you
know theyre true, claims are warranted by existing law or should establish new law
o No retroactive claims are permitted if the law changes and you have a new action for damages;
courts would be unwilling to change the law and open up the possibility for new claims
28
Privity
persons who are actually represented by a party to an action
successors in interest to a partys property involved in an action
nonparties who control the prosecution or defense of an action
Does not include issues that could have been litigated but were not.
o Attention to Pleadings
Pleading rules are important: in order to apply collateral estoppel, need to know what issues were raised in
the suit to know what cant be re-litigated; the pleading will tell us what issues were raised
RULE: in merger and bar. T/O defines previous claim raised; in collateral estoppel, pleadings define
previous issues raised
Does not include defenses that could have been brought but were not (Jacobson)
Definition of the issue: An issue is the factual relationship about the defendant or the plaintiffs conduct, and may be
bigger than a claim. But only preclusion of issues that have been raised (not may be raised.)
Only applies when the issue actually raised was necessary for the decision.
Voluntary dismissal is not a bar to future suit, unless notice of dismissal states otherwise.
When a judgment rests on multiple alternative grounds, any of which would be sufficient to sustain it, do
they all get issue preclusive effect? Either none do, all do, or Federal Rule: the careful look approach. (If
the court really paid attention to this, then it gets collateral estoppel effect.) Restatement view is that
neither should get collateral estoppel effect.
Where there are two cases, and one prior decision, the first in time gets claim and issue preclusive effect.
Where there are three cases and two prior decisions, the last in time gets preclusive effect. Explanation
punish the guy who required the case to be heard the second time. (In other words, the most recent
decision gets res judicata.)
Default judgments and settlements (usually) get same effect as regular judgments, giving the winner
chance to take collateral estoppel of all the issues he won on in future litigation.
Foreseeability doctrine value of the issue must be foreseeable in subsequent litigation for issue
preclusion to take effect. Otherwise defeat in one suit might result in outcomes never imagined during the
first litigation
HYPO #1
Suit #1 BG v. Little
Suit #2 Little v. BG
How does BG use issue preclusion to win?
Count #1 negligence
Count #2 willful and wanton negligence
For count one: Use Littles negligence as contributory negligence affirmative defense since it was proven in suit #1.
So you cant litigate on it.
For count two: Yes you can litigate it, no issue preclusion (because BG did not have to bring up its own negligence
in first suit under normal rules above case was before FRCP)
HYPO #2
Same as above, except under Federal rules. Suit two should have been brought as compulsory counterclaim
[13(a)], so since it was not it is precluded. T/O test. This is actually claim preclusion.
HYPO #3
Suit #1 Little v. BG for property damage
Suit #2 Little v. BG for personal injury
How does Little use issue preclusion to win?
Count #1 negligence
Count #2 willful and wanton negligence.
For count #1: BGs negligence must have been shown in Suit #1 and decided. But in Suit #1 it was only negligence
in regards to the property, not necessarily the injury. In this case, issue is bigger than the claim. Claims separate,
but issue of negligence is general. So you cant litigate on it.
For count #2: You can litigate (no issue preclusion) because you didnt prove willful and wanton negligence in the
first suit.
(Claim preclusion does not bar this because under Illinois rule these are two different claims. Claim-split: one if for
property damage and one if for personal injury)
29
HYPO #4
Same as above, but in federal court. Federal rules dont allow claim splitting. When L brings second suit, BG can
bring claim preclusion as an affirmative defense.
Federal courts deal with issue preclusion by adopting a wide definition of what a claim is and then apply
claim preclusion broadly. But in Illinois, they have claim splitting and a large definition of issue preclusion
and burden of pleading, production and persuasion, resulting in the same level of res judicata as in Federal
courts. In fact, in Illinois there are more issues decided in cases and so system is more efficient because
more issues are precluded. But if defendant wins we dont get the Illinois effect.
Suit #1: P v. D
Suit #2: New P v. P
New P could not claim collateral estoppel because new P was not a privy in the previous suit.
2
3
4
5
6
7
8
Suit #1: P v. D
Suit #2: P v New D
(Bernhard v. BofA)
Suit #1: P v. D
Suit #2: D v. ND
Suit #1: P v. D
Suit #2: NP v. P
Suit #1: P v. D
Suit #2: NP v. D
Suit #1: P v. D
Suit #2: D v. ND
Suit #1: P v. D
Suit #2: NP v. D
Suit #1: P v. D
Suit #2: P v. ND
Suit #1: P v. D
Suit #2: NP v. P
If you choose to sue someone, collateral estoppel can justifiably be asserted against you (new party D uses as a
shield). If you are a defendant being sued, it is less fair to allow the party suing you to claim issue preclusion on
an issue they know you lost before (new party P trying to use as a sword). But states vary on what to allow.
Mulitiple Plaintiff Anomaly: Courts will consider if it is fair to use non-mutual estoppel in this case. (All
200 passengers are killed when a plane owned by D crashes. If each plaintiff sues, D might win the first 20
suits (litigating every time because, as the winner, he cannot invoke collateral estoppel see #6 above).
Then, if he loses the 21st suit and we allow offensive non-mutual collateral estoppel, he can be estopped
from denying liability in the rest of the cases (see #4).
Full Faith & Credit
Within the same judicial system you have 1 set of res judicata rules
State A = own res jud rules w/own definition of a claim
State B = different
Federal system = federal courts have their own rules
We have as many as 51 res judicata regimes; as many as there are judicial systems
32
Patterns in FRCP:
1) Standard is in the rule itself (*)
2) Standard in the state rule ()
3) its omitted -> look to case law ()
Pleadings
1- Purpose: Just, Efficient, Cheap in Fed. Ct.
3 Commencing an Action
5 - Service
7 Pleadings allowed
8 Rules of Pleading
a. Claim
b. Defenses, Admissions, Denials
c. Affirmative defenses
11 Signing pleadings, motions, and papers;
sanctions dont purposefully impede R1
12 Defenses and waiving defenses, M to Strike
13 Counterclaims and Crossclaims
a. Mandatory
b. Permissive
Discovery
30 Deposition
31 Deposition by Written Questions
32 Using Deposition at Trial
33 - Interrogatories
34 Request Documents
35 Mental or Physical Exam
36 Request for Admission
37 Motion to compel discovery; disc. Sanctions
45 Subpoena ducus tecum = docs
26 Disclosure and Scope of Discovery
(b)(3) Work Product
Pretrial Termination
12 b. M to Dismiss (can waive if not done in 1 st
answer)
c. MJOP
56 Summary Judgment; Partial can be liability on
all but the damages *
Provisional Remedies
64 Person or Property
65 b. TRO
a. Preliminary Injunction
Trial Motions
50 - a. Judgment as a Matter of Law (JMOL) *
b. Renewing JMOL (must have done before; J
notwithstanding the verdict)
33
Same Transaction/Occurrence
R13 Compulsory Counterclaims
R15 Amendments
1367 Supplementary Jurisdiction (CNOF)
Summary Judgment Standard
R12(d) motion for 12(b)(6) failure to state a claim and 12(c) motion for judgment on the pleadings
56(e)(2) cant rely on allegation or denials in the pleadings; must set out specific facts to contest a sj move
34