1)

Personal Jurisdiction

Statutory Analysis of PJ

1) Does the state's long-arm statute permit PJ?

- It almost guaranteed will for purpose of the exam. Write
about that shit anyway for points.
- Sets the inner bounds.
- Per FCRP Rule 4(k), if the state can exercise PJ, a Fed.
district court within that state can as well.

Const. Limit.

Stat. Limit

'Cause every party needs some PJ

Const. Due Process sets
outer bounds of PJ
Stat. Limit sets inner
bounds of PJ
? must be w/n both

Subject
Matter
Jurisdiction

Presonal
Jurisdiction

2)

Constitutional Due Process Analysis

Venue

? must be here

Step 1: Does a traditional basis of jurisdiction apply?

- Is ? domiciled in the forum?
- Was ? served w/ process inside the forum?
- An agent of ? served w/ process inside the forum?
- Did ? otherwise consent to personal jurisdiction in the
forum?

No.

Yes.
Step 1a: Note Split in Authority Burnham
- Scalia +3 say that traditional basis alone is sufficient
for Personal Jurisdiction; BUT
- Brennan + 3 say that an Int'l Shoe Test still required.

Step 2: Do the Shoe

In Rem & Quasi in Rem:

- After Shafer, IR & QIR also now
require (for intanglibe property):
(1) A relevant "attachment"
statute
(2) Attachment must occur at
outset of case
(3) A Shoe minimum contacts
test must be performed.

Under both of these, weigh the relevant factors on sides both FOR & AGAINST on test to score max points
First, was there purposeful availment?
- ? must "reach out" into the forum
- The unilateral actions of another are insufficient
Calder Effects Test:
Are actions TARGETED at forum state & cause
EFFECTS there?
Walden 2014: Must target state itself, not just
people domiciled there. Airport police case.
Internet? SEE BELOW FOR SCALE

Internet Sliding Scale Contacts Test; Zippo Test adopted by Pavlovich. Has not been adopted by Sup. Court.

Shoe Part 2:
Asses
relatedness
of contact

? simply posted information

on a website that does little
more than make information
avaliable to those who are
interested in it; is not grounds
for the exercise of PJ.

"interactive websites where a

user can exchange info w/ a
host computer. Exercise of PJ
is determined by examining
the level of inteactivity and
the commerical nature of the
exchange of information"

No.

MUST now find

general
jurisdiction

Yes.

Can be either
specific or general

Primary inquiry: Does the

? 's claim arise from the ? 's
contact with the forum?

General for People: Is ? at

home here or served in the
state?

"? clearly does business over the

Internet. If ? does business w/
residents of foreign jurisdiction that
involve the knowing and repeated
transmission of computer files over
the internent, PJ is proper

Sufficient Contacts

Insufficient Contacts

Shoe Part 1:
Is there a
relevant contact?

Second, is foreseeability met?

1) Must be foreseeable that ? would get sued in the forum state (not just
foreseeable that product would get there); AND
2) Stream of Commerce Analysis. Asahi McIntyre SPLIT IN AUTHORITY
(2a) Brennan "SoC" Theory: There is a contact if product put into SoC and the
manufacturer/ seller could REASONABLE ANTICIPATE it would get to the
forum state.
(2b) O'Connor "Soc +" Theory: The manufacturer must have specifically
TARGETED the forum state (advertisements, special edition, customer
service, etc)

General for Corps: Contacts must be

"continuous and systematic" to point of being
OR
"at home" though so far only state of
incorporation and PPoB ("nerve center"/
headquarters) recognized.

DO NOT FORGET: LITIGATING

JURISDICTION

Shoe Part 3:
Fair Play &
Substantial
Justice
Assessment
ONLY FOR
SPECIFIC PJ

Five Fairness Factors: Remember BK. Fairness irrelevant if no relevant contacts.

(1) Forum is unconstitutionally, heinously burdensome for ? . ? bears the burden of
showing this. This is probably the most important of these factors, though court does not
indicate.
(2) Forum's interest in hearing claim. If the forum state has interest in protecting its
citizens from scams or otherwise. Keeton v. Hustler - State interst in not having fraudulent
info published.
(3) ? 's interest in the forum state. Ex, ? may have suffered injury & cannot travel.
(4) Legal system's interest in efficiency. Ex, PJ may be good if all witnesses and evidence
are in the forum area
(5) Shared substantive policies of the states. Kulko all states have interest in "preserving
family harmony" otherwise court has been super vauge on this one.

If ? does not challenge the jurisdiction

in his first motion/ answer to the court,
it is COMPLETELY WAIVED per Rule
12(h).

DO NOT FORGET
Also keep in mind the availability of IR
and QiR to get some form of
jurisdiction if facts mention property in
the forum state.

Ultimately: If there is a relevant contact, the suit is based on it, and the fairness factors do not weigh against PJ in the forum, jurisdiction is PROPER.

A good party needs a fitting theme, right?

Art. III authority + statutory provision =

SUBJECT MATTER JURISDICTION

Subject
Matter
Jurisdiction

1) Has the Constitution granted authority to hear in Art. III sec. 2?

- 'Arising under' (suit directly stems from Constitution, federal laws, or a treaty) Ambassadors, public ministers, consuls
- Admiralty law
- US Gov't is a party
- B/w different states
- B/w a state and citizens of another state
- B/w citzns of diff states
- B/w state (or citizens thereof) and foreign states (& their citizens/subjects)
For purp of sup. jur, constitutional basis is that Art. III grants auth over cases not claims;
thus endpnt jr for each claim not cnstly necssry.

Proper
Court

Presonal
Jurisdiction

Venue

+
2) Has Congress actually conveyed jurisdiciton in a statute? (Each claim must meet at least ONE)
Necessary to get Into Court
Federal Question - 28 U.S.C. 1331

Diversity - 28 U.S.C. 1332

"... shall have original jurisdiction of all

civil actions arising under Constitution,
laws, or treaties of United States."

Two Requirements per 1332(a):

1) Amount in Controversy must exceed
$75,000 ($75k + .01)
If multiple (related or unrelated)
1) What is claim? (is claim sffcntly fed?) claims by same ? against single ? ,
Well-pleaded complaint/ Motley rule:
aggregate requested costs of claims.
- Look ONLY at claim, not at possible
(claims cannot be aggregated b/w different
defenses or rebuttals. Is ther plaintiff
? s)
enforcing a federal right?
If punitive damages are sought,
- The federal issue must be part of ? 's remember the 1:9 ratio (speculative
minimially adequate complaint;
punitive damages never 10x beyond actual
anticipated fed. issue defense of ?
damages)
insufficient for 1331.->
If multiple ? s in suit against single
? , do not aggregate different ? s'. At least
- (Fed. Claim) Holmes' 'Creation' Test. one ? 's own damages must be >$75.
Motley rule is met if the source of
When multiple ? s, each ? must
? 's enfrcble legal right against ? is
independently satisfy $75k+
federal law. (ie not state contracts or
2) Complete Diversity. No ? and ? may
torts claims)
be from (domiciled) the same state at time
- Does federal law GIVE the right
the suit is filed.
(Motley's right was taken away)
UNLESS: If there is an otherwise
non-diverse ? who has fed question or
- (State Claim) Sbstl. Fed Issue Test.
other form of S-J, diversity not defeated.
Grable Test: "Does a state-law
-Domicile =actual residence + intent to
claim necessarily raise a stated federal
stay 'indefinitely' (indfntly means 'open
issue, actually disputed and substantial,
ended, not necessarily permanent
which a federal forum may entertain
intent to remain)
without disturbing any congressionally -Moving parties in transit; still domiciled in
approved balance of federal and state old state until physically reach new state
judicial responsibilities."
- Foreign residents who are lawfully
Note Merrell Dow: A private right of
admitted for permanent residence and
action must be created by the fed. stat.
are domiciled in same state as citizen to be a sbstl. fed issue. Here claim
considered 'citizen' of domicled state;
'disturbed the balance' since congress
otherwise are considered foreign.
did not create private right to recovery -Corporation citizenship: 1332(c)(1)
on neg. labeling.
Anywhere incorporated OR principle
place of business
2) What must the ? prove?
PPoB ="nerve center"/hdqtrs OR "bulk
Burden is on ? to show that claim is
of daily operations;" only 1 PPoB.
either a federally provided private act
-Unions, LLCs, Partnerships
OR inludes an issue which rests on a
Any state where a member is
substantial federal question
domiciled.
-Thus a ? cannot take a ? 's state claim
to federal court b/c the counter-claim is
federal.
Minor note: Concurrent jurisdiction, state
courts have the power to hear federal claims

Diversity can be sketchy with

equitable claims. Must
estimate the value of the
injunctive relief with
reasonable certainty

Adding a claim w/o own jurisdiction

Supplemental - 28 U.S.C. 1367

Removal - 28 U.S.C. 1441

DOES NOT GET CASE IN; ONLY

CLAIM. Every claim needs SMJ. ->
1367 essntly extends supp. jur. to
the constitutional limits to add a state
claim to a federal claim in the same
case.
1367(a) -> Const
1) Assess const. limit: Is there a
factual relationship between the
federal and state claims?
a. Do they arise from same case
or controversy?
b. Gibss Test: Are the claims from
the same "common nucleus of
operative fact"? If so = case.

Gives D the chance to transfer to the

federal court system from state court.
No such thing as from federal to state.

2) If they are same "case," is there an

exception?
Diversity Exception - 1367(b)
-ONLY IN DIVERSITY CASES
- If the subject matter jurisdiction in the
? 's initial claims is solely based on
1332(a), and the claims sought to be
added via Rules 14, 19, 20, or 24
would defeat diversity, supplemental
jurisdiction WILL NOT be extended.
Discretionary Denial of Supp
Jurisdiction - 1367(c)
-Under discretion, fed courts may deny
supp jur if
(c)(1) Claim raises novel or
complex issue of state law,
(c)(2) Claim substantially
predominates over the claim or claims
over which the district court has
original jurisdiction,
(c)(3) District court has dismissed
all claims over which it has original
jurisdiction, OR
(c)(4) In exceptional
circumstances, there are other
compelling reasons for declining
jurisdiction.

P can never remove, even on a

countercliam.
If P thinks the removal is improper,
they can move to remand to state
court
1441(a) - If the ? could have
originally brought the suit in federal
court under subject-matter jurisdiction,
? has the right to remove the entire
case to the federal court in the state
where the initial claim was brought.
Unless rules below prevent.
Note: ? cannot later remove his
own case to federal court if he did not
initially.
Diversity Removal - 1441(b)(2)
-? may not remove on the basis of
1332(a) if ANY of the ? s in the case
are citizens of the State in which the
action was brought.
-Diversity determined at time suit filed.
Fed. Quest. Removal - 1441(c)(1)(A)
- Applies well-pleaded complaint/
Motley rule to determine if ? could
have brought claim in fed.
Freer's Rules
1) General Rule, D can remove if case
could have been brought in fed court.
EXCEPTION -> Can't remove diversity
case if any D is a citizen of the forum.
But Fed Q. can be.
2) Must remove w/n 30 days of service
of process.
3) All D's who have been served w/
process must join in the removal
4) 30 days for removal starts again for
each newly served D.
5) Can remove only to federal court
which embraces that of the state court.
Cannot remove to other districts.

Remember: A motion to remove could

bring this to fed, and D immediately
move to dismiss for lack of personal
jurisdiction

? 's venue rights; Finding Venue

? 's venue rights; Transfer of Venue

Subject
Matter
Jurisdiction

1) Is the case removed from a state action?

1391 does NOT apply to removed actions.
Instead, see 1441(a)
If so, the property venue is "the district and
division embracing the place where such action
is pending.

Presonal
Jurisdiction

2) Venue is ? 's Privilege - Objecting

Rule 12(b)(3) - Defense to object to venue
BEFORE pleading.
Rule 12(h)(1) - Waivable defense - LOST if not
raised.
3) Venue is proper when... 1391(b)
(1) "residency" - judicial district in which any ? resides, if all
? s are residents of the state in which the district is located;
OR
(2) a 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 the subject of the action
is situated; OR
(3) "fallback prvisn" if first two cannot create venue, then
any judicial district in which any ? is subject to personal
jurisdiction with respect to the given action. (ie view the
district as a state for purposes of det. PJ
Non-Statutory Execption: Forum selection clauses are
often given effect (since forum is ? 's privilege)
1391(b)(1)
residence det.

Is ? a resident of the
district? 1391(c)
(1) natural people =
district of domicle
(2) legal entity/ bsnss
If as ? ; anywhere
subject to personal jur.
If as ? ; only at the
PPoB
(3) non-resident as ?
venue is proper
anywhere. Joinder of this
kind of ? will not impact
venue det.

Transfer Venue 1404(a),(b)

Common traits.
Transferor: COURT originally filed in
Transferee: COURT to be
transfered to
Any venue transfer MUST:
- Be w/n courts of same judicial
system (ie fedMA->fedNC, but not
statNC->statMA)
- Transferee must be a proper
venue per 1391 and have proper
PJ over ? ; ? cannot waive venue &
PJ to accomplish this

Venue

Parties also need a good...

VENUE

Analyze if the transferor proper ven?

1404(a) - When transferor

is a proper venue
- Balance public and private
factors per Piper Aircraft for
transferor & transferee
Public Factors
-Court congestion
- Local interest in deciding home
cntrvrsys
- Diversity trial in home state law
- Avoid cnflict of laws
- Applctn of foreign law
- Unfairness of jury duty for
unrelated citizens

1391(b)(2)
events or omissions

This provision will often

permit venue in several
locations on account of
the complexities of
interactions. Ex products
liability both where
product manufactured and
where injury occurred.

No.

Yes.

1406(a) - When transferor

is NOT a proper venue Either;
- Transfer to proper venue; OR
- Dismiss the action

Private Factors
- Rltv ease of acces to evidence
- Avaliability of cmplsry process
for unwilling witnesses
- Cost of obtaining willing witnss
- Possible view of site of harm
- All other practical problems
that "make trial of a case easy,
expeditious, and inexpensive"

"Center of Gravity" of Case

If balance factors transferee: Court MAY, for such convenience,
for parties & witnesses. ENORMOUS room for court discretion.
NOTE: Forum selection clauses are hugely important in permitting
transfer, since both parties initially agreed to them.

? / Court's Decision to Dismiss for Lack of

Venue
Forum non conveniens
Note: This is considered a rare occurrence. See Piper.
Court will dismiss entirely if there is a better court
in a different judicial system.
-Requires strong showing of:

? ?

Public & Private Factors Listed above per Piper, AND

BOTH
Availability of Alt.
Venue
- Is a court in the
proper venue
available for kind
of trial?

Adequacy of Alt
Venue
- ONLY "day in court"
- NOT
Jury trial
Theory of Rcvry
Damages
AND

Usually ? must also waive statute of limitations or

personal jurisdiction requirements in other forum.

1404 Transfer
Transferor choice of law applies

FNC Venue Swap

Transferee/ new court choice of
law applies

JOINDER
(Get cozy motherfuckers)

Parties

1) Must a party be joined by ? (or forced joinder via court)? Rule 19

Rule 19(a)(1)
Prelim reqs.
-Is person subject to service of
process?
AND
-Joinder will not deprive court
of subject-matter (diversity)
jurisdiction?

AND one of 19(a)(1)

(A) In person's absence, the court cannot accord complete relief
among existing parties; OR
(B) that person claims an interest in action and disposing of
action in person's interest will
(i) as prcticl mttr impair or impede person's ability to protect
interest; OR
(ii) leave an existing party sbjct to sbstntl risk of incurring
inconsistent obligations due to interest
COURT MUST ORDER PERSON TO BE MADE PARTY
2) Can ? join a party? Rule 20(a)

As a ? ? - 20(a)(1)
- Both ? s assert claims arising from 'same
transaction or occurrence' (or series thereof)?
AND
- Claims against ? involve any common question of
law or fact to all ? s?

LIMITED BY 1367(b)

Feasible?
- Will joinder
deprive court of
personal
jurisdiction?
- Does party
object to venue?
(19(a)(3)-must be
dismissed if valid).

If not feasible, then 19(b).

Court must determine whether to proceed on
whether party is "necessary" or "indespensible"

-Fourt factors: (1)would absncs prejudice

person or exstng parties? (2)could
prejudice vbe avoided by shaping
judgment or relief? (3)would judgment in
prsn's absence be adqt? (4) would ?
have adqt remedy if action dismissed?
IF indpsnsbl. Suit should be dismisd.

LIMITED BY 1367(b)

As a ? ? - 20(a)(2)
- Are claims against ? s from the 'same transaction or
occurrence'? (or series thereof)?
AND
- Claims against them share any common question of law
or fact?

As a 3p? to a ? 's cross-claim? - 14(b)

-Plaintiff may implead a 3p? so long as the
rules would permit a ? to do it in same
situation.
1367 not implicated b/c of the "permit D"

Other Joinder of Parties by ? , ? , or 3p? . Counterclaim Joinder & Impleader

May ? join a party on a counterclaim OR a
cross-claim? Rule 13(h)
NOT LIMITED BY
1367(b)
- Yes, if Rules 19 & 20 are met. (ie 20(a)(2)(A)
and 20(a)(2)(B)).
- Counterclaim against added party and
original ? are from the same transaction or
occurence as the original claim.

Impleader - Rule 14(a)(1) - 14 day limit or ordr.

NOT LIMITED BY 1367(b)
- ? may, as a third-party plaintiff, serve a summons and complaint to a non-party who is or may be liable to it
for all or part of the claim against it. via contribution (part) or indemnity (all). - 3p? is now liable to orig. ? , not
?.
- Once 3p? has claim against it, Rule 18(a) permits ? to pursue unrelated claims against him.
- Does not impact diversity (see 1367)
Only for ? -> 3p? ; not o-? -> 3p? (unless 3p? -> o-? + 19(a))
- Does not impact venue (see 1391(b)(1))
- May this non-party then implead another 3rd party ? ? Rule 14(a)(5) -> Yes.
- For same reasons as ? could implead 3p? .
See below which claims a 3p? can or must make.

For the purpose of our test, Rule 24 does

NOT exist. Parties cannot intervene; therefore
all joinders should be assumed to be by an
existing party

Claims
May a claim be joined by ? , ? , or 3p? ?
May ? or ? join another, unrelated claim? Rule 18(a)
- Is the additional claim against an 'opposing party'?
- Unrelated claims are permissible; but assess if compulsory if by ? .
- HOWEVER, these new claims must be assessed for independent subject-matter jurisdiction.
- AND res judicata may force a joinder if they DO arise out of same transaction or occurrence, even though 18(a) is completely permissive otherwise.
Must or may a ? make an additional claim?
Against a ? (or opposing party)? - Counterclaims
Compulsory?
Rule 13(a) Must
- If from 'same
transaction or
occurence' as claim
against him; then yes.
- IF NOT asserted. The
right to bring this claim in
future is WAIVED.

Permissive?
Rule 13 (b) May
- If from different events; then yes.
- IF NOT asserted. The right to bring
claim in future is NOT waived.
Then -> Rl 42 (b)
- Court will likely split these claims for
convenience, to avoid prejudice, or to
economize.

These 13 rules are NOT LIMITED by 1367(b)

Against a co-party? - Crossclaims

Crossclaim Rule 13 (g) May
- Is cross-claim arising from same transaction or
occurrence as the main claim?
- Permitted for both indemnification &/or SToO.
- Optional. If not asserted, the claim is NOT
waived for future litigation.
- This co-party is now an 'opposing party' for
purposes of Rule 13 AND Rule 18(a).
-**It is unclear if a 3pD is a "co-party" to a different
D than that which impleaded it. ARGUE FOR
BOTH. ****

Against a non-party?
See Rule 14(a)(1) Impleader. May
Remember that the claim cannot merely
be an either/or proposition saying that
new ? is only liable to ? and not it;
"substitute ? ."
? 's impleader NOT LIMITED BY 1367(b)
o-? 's direct, initial actions against 3p?
ARE LIMITED BY 1367(b)

Impleader Claim Concerns for 3p? and o-?

What can/must 3p? claim? Rule 14(a)(2)
NOT LIMITED BY 1367(b)
- (A) MUST assert any defens against 3p? per Rule 12.
- (B) Apply Rules 13(a), 13(b), and 13(g) for counter-claims and cross-claims as a ?
would.
- (C) MAY assert against o-? any defense that 3p? has to ? 's claim.
- (D) MAY assert against o-? any claim arising out of transaction or occurrence that is
the subject matter of the o-? 's claim against 3p? .
SEE Rule 14(a)(3) for own defenses to o-? direct claims.

What can o-? assert against 3p? ? Rule 14(a)(3)

LIMITED BY 1367(b)
- o-? MAY assert any claim arising out of transaction or occurrence that
is subject matter of o-? 's claim against 3p? (o-? ).
IF o-? DOES MAKE CLAIM ->
- 3p? MUST then assert any defense under Rule 12 and counterclaim
per rules of Rule 13(a), though to be cited as 14(a)(3).
- 3p? MAY assert any counterclaim under Rule 13(b) or Rule 13(g).

4? (a)
(pseudo P;

Joinder Addendum

? 4(b)

on o-P's side
for purpose of opp. party)
13(h) joinders may be slightly
off in function and clarity

Joinder of ? 4 by ? 1
on a counter-claim
13(h)
? 1-> ? 1 & 4? (a)

?2
Joined
by ? 1

Joinder of ? by ? 2
on a counter-claim
13(h)
? 2 -> ? 1 & ? 4(a)

Something related
13(a)
? 1 -> 1?
Negligence
13(a)
Compulsory
Brch of Diff K
13(b)
Permissive

Joinder of a ? by ?
20(a)(1)
Negligence

?1
Initial

Negligence
Breach of Diff K
18(a)
joinder of existing
claim

o-?
Initial

<-(first) (second) ->

Brch of Diff K
13(b) Permissive

Negligence
13(g) Cross-claim
always non compulsory

Negligence
Negligence
13(a) Counter-claim
NOW compulsory

20(a)(2) joinder to
? 1 suit

? 2 Initial
3p?

Joinder of a ? by ?
20(a)(2)

14(a)
Impleader

Marshall says YES. This is a

valid cross-claim per 13(g).

OR

13(g) cross claim?

? 3 ->3p? (of ? 2)

13(g) cross-claim
3p? (of ? 2)-> ? 3
totally permitted

But Rule 14(a)(3) claims

would be prohibited by
1367(b).
Marshall: Would depend on
definition of defendant/
opposing party

first ->
<- second

Super Nuancy: 13(a)

Counter-claims are NOT
limited by 1367(b)

OR

first ->
<- second

nuancy: If this violates

diversity jur, o-? cannot make
this claim

o-? -> 3p? (of ? 2)

may assert same ttoo
of 3p? v 3p?
Rule 14(a)(3)
3p? -> o-?
!Technically 14(a)(2)!
MUST 13(a)
MAY 13(b)
3p? -> o-?
14(a)(2)
Rule 12 compulsory
Apply other rules
13(a) compulsory counter
o-? -> 3p? (of ? 2)

13(a) or 12
Compulsory

3p?
(resp. to
? 2 only)

first ->
<- second

Super duper nuancy:

<- first
se ->
co
nd

?3
Joined
by ?

1367(b)
irrelevant
for 3p?
but VERY
relevant
for o-?

Notice/ Service of Process

1. Does the service meet Constitutional standards?
- Must be "reasonably calculated" to appraise a party of
the action.
- If ? learns that actions taken are unreasonable, he
must make additional efforts.

Is service waived or formal?

Formal Service to Indvdls.

2. Does the method of service satisfy Rule 4(e)?

(2)(A) - Delivering copy of summons to individual personally
(2)(B) - leaving copy of summons @ indvl's dwlling with a person
of suitable age.
(2)(C) - delivery by law enforcement agent
(1) - Following state procedures for service where claim is
brought
(1) - If serving ? outside forum state, ? may serve per ? 's state
rules.

Rule 4(m) - Was service filed

within 120 days of complaint?
-If not, did ? have good cause
not to?
-If no to both, suit must be
dismsissed.

Formal Srvc to Corps & Entities

If served within United States - Rule

4(h)(1)
(A) - Pursuant to 4(e)(1) for serving
individual; or
(B) - By delievering a copy of
summpons & complaint to an officer,
managing or general agent, or any
other agent authorized by appointment
or law to recieve service of process

Challenging Service of Process - Rule 12(b)(5)

Per Rule 12(h)(1), failure to challenge sufficient service in
the initial pleadings WAIVES ? 's right to do so in the
future.

Pleading the Complaint

?
Rule 8 defines system of " notice pleading"
(a) Claim for relief MUST contain:
(a)(1) Short statement on court's grounds for
jurisdiction, unless jurisdiction already
established (SEE Fed. Qstn. Well-Pleaded Rl)
(a)(2) Short & plain statement showing the
pleader is entitled to relief
(a)(3) Demand for relief sought; may include
relief in alternative or different types of relief.
Elaborating ? rules
- Prima facie case? ? does not need to show all
elements of a prima facie case at pleading
stage, since this is the point of discovery.
(Swierkiewicz v. Sorema)
- Inconsistent counts?
? 's allegations CAN be mutually exclusive
grounds during the pleading. But he cannot
ultimately recover on both. (US v. Brd Harbor
Commissioners)
- Exception. When ? knows an inconsistent
allegation is false, it shall be struck.
- Speculation. Bell Atlantic Corp. v. Twombly
If only legal, though potentially impermissible
conduct, is alleged, absent any factual context
suggesting wrongdoing, the complaint should be
dismissed.
Regarding plausibility, If there is "reasonably
founded hope" that "no set of facts" can be
alleged to support claim, then dismissal is
proper.
- Plausibility. Ashcroft v. Iqbal.
Two step test to survive dismissal.
1) Court must accept all allegations as true
EXCEPT 'legal conclusions'
2) Only a plausible claim for relief survives.
'Conceivable' ? plausible. Inference of mere
possibility of misconduct insufficient to show
entitlement to relief.
These are to be determined by a judge's
"common-sense"

Waiver of Process

Rule 4(d) - Waiver

(1) - ? has duty to avoid
"unnecessary expenses"
(2)(B) - If ? refuses to waive w/o
good cause, he will bear expenses
of service
(3) - Gives 60 days to respond to
complaint if waived. Std. srvc gives
20 days instead.

You got served.

? 's Pre-Answer Defenses

Other pleading rules. incomplete

no need to finish prf. marshall says exam will not
have failure to state a claim

Rule 12(h) Waiver of

Defenses
(1) Waiver - the below defenses
are WAIVED if
(A) omitted from a joined
motion per 12(g)(2); OR
(B) failing to either:
(i) make it by motion under
this rule; OR
(ii) include it in a responsive
pleading. . .
Waived defenses - 12(b)...
(2) lack of PJ
(3) imporper venue
(4) insufficient process
(5) insufficient service of
process.
(2) Raising certain claims For failure to state a claim upon
which relief can be granted, to
join a person req. by 19(b), or
to state a legal defense may be
raised:
(A) in a 7(a) pleading;
(B) by 12(c) motion; OR
(C) at trial.
(3) Lack of Subject matter
jurisdiction may be raised by
the court itself as grounds for
dismissal AT ANY TIME.

The Discovery Directory

Rule 33 - Interrogatories
Can only be sent to parties,
not to non-parties
30 days to respond.
Rule 36 - Req. for
Admission (Only to parties)
- Require party to admit or
deny specific factual
statements.
- 30 days to respond.

Rule 35 - Medical Exam

- Requires court order.
Disovering party MUST
demonstrate that the
condition to be examined
(mental or physical) is
relevant to the caes and that
there is "good cause"
- Only if a person is in the
"custody or legal control" of
the party (or is party
themselves) can they be
subject to Rl. 35

Mandatory Disclosures

Early Discovery

Rule 30 - Depositions
(Live)
Can be used to obtain
information from non-parties.
Rule 31 (Written Deps)
- Requires a Rule 45
subpoena for non-parties.

Rule 34 - Req. to Produce

-Documents, electornically
stored information, and
tangible things.
- CAN be used against
non-parties
- Per 34(c), requires a Rule
45 subpoena

Rule 26(a)(1) - Mandatory Initial Disclosures

- Each party must identify persons who have
discoverable information that s/he may use to
support his/her contentions on the merits; AND
- Must describe or produce documents, ESI, and
things that constitute discoverable material that
she may use to support her contentions.
-P must provide a calculation of damages
- D must identify any insurance she has which
may cover all or part of the claim
DUE w/n 14 days of initial pre-trial conference

Late Disc.

requesting information

Rule 26(a)(2) - M.D. of Expert Witnesses

- Usually towards end of discovery.
- Requires identification and information from
expert witnessess the party will use at trial.

Post-Disc;
Pre-Trial

Basic Party Tools for

Rule 26(a)(3) - Pre-Trial Disclosures

- Each paty must disclose every contention
it will raise at trial (witnesses and evidence)
in a memo which is filed w/ court

Scope - What is Discoverable?

Rule 26(b)(1)
- Any non-privileged information
Burden is on person claiming privilege to prove it.
- Need not be admissible evidence, so long as
"reasonably calculated to lead to the discovery of
admissible evidence" -> therefore hearsay permitted.
Rule 24(b)(4) - Work Product Provision
- Any material made by a representative (including
private investigators) preparing for a trial MAY be
protected so long as plaintiff cannot meet:
(1) substantial need for the information; AND
(2) they cannot without undue hardship get the
equivalent of the information.
- Even if plaintiff meets this burden, certain types of info
are never discoverable (opinions, theories, conclusions,
and legal theories)

REMEMBER: Parties are supposed to

work discovery disputes out beyond
themselves.
Chart is weak, but not too
much class time on discovery;
should suffice

Enforcement of Provisions
Rule 26(c) - Protective Order
Court can order this to prevent, limit, or keep
secret files requested in discovery at the
Responding Party's request.
Failure to Respond Outright
Rule 37(d)(3) - Sanctions for Outright
Refusal to Respond or show to Deposition
- All 37(b)(2)(A) Sanctions minus contempt;
HOWEVER, court much more likely to enforce
a default judgment here due to the severity of
the transgression

Inadequate or Disingenuous Response

Rule 37(a)(1) - Motion to Compel
- If discovering party feels the responding
party has disingenously answered questions,
it can file this motion. If judge finds the
discovery was refused in bad faith, sanctions
- Sanctions: Must answer the questions to
judge's satisfaction & pay the attorney's fees
the other side incurred getting the information
If RP still
refuses
to produce

Remember: A company cannot get around

discovery by saying it is too cumbersome or
expensive on account of their own poor
record keeping system. Permitting this
would allow chronic defendants to escape
discovery merely by making their data
painfully inaccessible.

37(b)(2)(A) Sanctions
- Refused facts decided in
other party's favor; OR
- Prohibit any challenge or
defense to this matter at
trial; OR
- Contempt of Court; OR
- Default judgment; OR
- Dismissal of complaint; OR
- Staying proceedings; OR
- Striking a pleading

Summary Judgment,
J.M.o.L., Juries,
& Failure to State a
Claim

NOTE: "Completed presenting

case" INCLUDES rebuttals?
For purposes of filing a 50(b)
post-trial motion

12(b)(6) - By ?

? rests
50(a)(1) by ?

56(a) - By ? or ?

? rests
? rebutts
50(a)(1)
50(a)(1)
by ? , ?
by ? , ?

50(b) ? or ?
59(a) ? or ?
59(b) by court

Trial Begins

Pre-Trial

Trial

Submitted to Jury

Post-Trial

Trial Motions - Remember 12(b)(1) can be raised by court at any time

Pre-Trial Motions
Rule 12(b)(6) By ? , Pre-Trial
Motion to dismiss for failure to
state a claim.
- Only looks at face of complaint
- Assume all facts by ? are true.
- Does the pleading state a claim
on which relief could be granted?
(I hurt, she did it, they say I get)

Rule 56(a) By either ? or ?

-No genuine issue of mat fact &
movant entitled to jdmt m.o.l.
(1) Is there conflicting evidence?
(2) Is there any issue of crediblty?
(3) View all remaining in light
most favorable to non-movant.

Adickes - Missing Facts SJ

- ? states a fact is missing
- ? must produce evidence to show
such absence & that dscvry cannot
find
- If ? cannot, then SJ fails, ? survives
(Aff actor is ? ; ? must do something or
claim continues)

A.C.W.o.E = against clear

weight of evidence, new trial
could be proper when JMoL
not

(2)-(5) WAIVED if not raised at

answer stage

Analyze
BOTH

Celtotex - Missing Element SJ

- ? states an element is missing.
-? can file affadavit to survive.
-If ? cannot, SJ for ?
(Aff actor is ? ; ? must do something to
surive)

Burden of persuasion met

by "substantial evidence"

Post-Trial Motions
J.M.o.L. (Post-Trial) Rule 50(b)
- Loser moves for; but technically either can.
- MUST be filed w/n 28 days of verdict
- IF finds that jury was unreasonable on basis of facts:
Remedies:
- (1) Allow judgment on the verdict
- (2) Order new trial; or
- (3) Direct judgment as matter of law
- Remititur can be granted so long as both parties agree to the
amount. Additur is not permitted in federal courts.

Motion for a New Trial or Altr/Amnd Jdgmt - Rule 59

- (a)(1) By ? or ? to some or all issues
- (a)(1)(A): After a jury trial for any reason which has been previously
approved in federal court for ACTION AT LAW
- (a)(1)(B): After bench trial for any reason... for SUIT IN EQUITY
- (b) This must be done by parties w/n 28 days.
- (d) Court can order this on its own w/n 28 days. Unlikely to be on
test, but see FRCP for further guidance.

Is J.M.o.L. Proper?

Ev. Disfavors ?

J.M.o.L.
for ?

Rule 12(b)(1)-(5),(7)
(1) Lack of subject-matter
(2) Lack of PJ
(3) Improper venue
(4) insufficient process
(5) insufficient service of process
(7) Failure to join indespensible
party

J.M.o.L. (At Trial) Rule 50(a)

-By ? after ? rests case; OR
-By ? or ? after ? rests case.
Will grant jdgmnt if no reasonable jury could have legally sufficient
basis to decide
- Per 50(a)(2) this must be done pre-submission to jury
- This MUST be done to permit a 50(b) post verdict demand.

Area of Legt.
Diff of Opn.

Ev. Favors ?

A.C.
W.o.
E.

A.C.
W.o.
E.

J.M.o.L.
for ?

Jury Town

Burden of
Production

Burden of
Persuasion

Who bears the burden of proof on a

specific issue?
Shifting factors
- Is it an affirmative defense?
- What was legislative intent?
- Who has more access to info?
- What is public policy behind stat?
- Create a presumption?
(ie that stolen guns used for crime
OR that non-stolen guns are used for
crime)

? ?

End of Class Misc:

Class Actions & Appeals

Per Rule 23(a) - Must Have all Pre-Reqs

(1) Impracticability: Group must be so numerous or geographically
dispersed that standard joinder is impracticable; AND
(2) Commonality: Group must have common answer (not
question; Wal-Mart 2011) to all questions. rep must show that
group resolution will determine cause of every class member;
AND
(3) Typicality: Rep's claim must be typical of other class members;
must suffer same kind of harm; AND
(4) "Fair and Adequate" Representation: Rep must fairly and
adequately represent the class. -> Rule 23(g) parallel provision for
class attorneys

Class must be discernable; cannot be "on behalf of all the

downtrodden"

Subject Matter Jurisdiction?

Type of Action

Are all pre-requisites met?

Appeals

Implicit Req.

Class Actions

23(b)(1)
(A) sep trials would risk
inconsistent judgments
on the D; OR
(B) sep trials of
individuals, as practical
matter, would be
dispositive of other
class members or
would substantially
impede ability to protect
their interests.

23(b)(2)
D has refused to act on
grounds which would
solve issues for whole
class; only injunctive
relief permitted here.
Wal-Mart 2011: No
compensatory
monetary relief;
remedial focus only.

1331 Fed Question

Always and easily permitted

23(b)(3)
Seeks damages, must
show:
(1) Common question
predominates over
individual questions
(shared law or fact
alone insufficient); AND
(2) Class action is
superior means of
resolving the dispute.
BIG DIFF:
Only class in which
members are entitled to
notification and can opt
out of the class for
individual remedies.

1332 Diversity
- Citizenship for purp of 1332 is the
residence of the class
representative
- Amount in controversy however
must be met for EACH plaintiff
(BUT THERE IS A LOOPHOLE)

Settlement?

1367 Supplemental
Because 1367(b) does NOT include
parties joined under Rule 23; the
amount in controversy lacking by
each individual class member is
IRRELEVANT and can proceed
under supplemental jruisdiction.

Rule 23(e) - Restricted Settlements

Court must approve any settlement or dismissal to ensure that the class
attorney is not merely making a "sweetheart" deal to pay himself, let D off hook,
and preclude class's interests.

Beware 1291, appeals jurisdiction is very strict. Even a

judge's error in timing is fatal to a proper appellate
jurisdiction.

Final Judgment Rule

- A party can only appeal a final judgment which "ends the
litigation on the merits and leaves nothing for the court to
do but execute the judgment"
Two kinds of errors:
Interlocutory: A particular issue is decided for purposes
of the trial; NOT subject to immediate appeal.
Final: Concludes the litigation on the merits. Sbjct to
appeal.
Final judgment rule is rooted in concepts of judicial
efficiency and a fear that one party may attempt to bleed
the other of resources by challenging every court order.

Pseudo Final Judgment (Not technically an exception)

- When a judgment "puts litigants effectively out of court"
even if it does not conclude litigation on an issue, appeal is
proper.
ex. Stay order Quackenbush, parallel state and fed trials.
At fed trial, judge orders stay. This means that the state
court will effectively have final say due to preclusive effect
and fed order would be appealable, but meaningless.
- Immediate appeal thus permitted.

Actual Exception: Collateral Order Excpt.

Cohen v. Beneficial Industrial Loan.
- When an order is issued which is effectively separate
(collateral) from the merits of the main dispute and that
order is final on the collateral issue w/o impact on the
merits of trial, it CAN be immediately appealed.
KEY FACTOR: If there could be no effective review (or
remedy) of the order after a final judgment is entered (and
the order would otherwise not have impacted said final
judgment) it is immediately appealable per the COE
ex) Class action trial forces D to pay for notification of the
class members. Even if D wins initial suit, probs can't
recoup these costs, so must use COE to quickly appeal.

Could be stronger; but decent

per amt of class time

Claim Preclusion (Res Judicata)

FIRST ALWAYS
DETERMINE IF
THE CLAIM IS
OTHERWISE
PRECLUDED BY
A 13(a) cmpls c-c

Issue Preclusion (Collateral Estoppel)

1a) Is same ? filing suit against same

??

Yes.

Res Judicata

- Must be in same position. Res judicata

would not apply if they switched paety
positions. BUT: where res judicata may
not bar a former ? filing as a new ? , the
claim still may be prohibited under a
13(a) compulsory counterclaim.

2a) Is the issue actually litigated?

- Default judgments do not
count. Nor do judgments not "on the
merits" per Res Jud.

No.

2b) Issue actually decided?

- No winner, no loser = no
issue.

Yes.

Yes.
3) Decision on the issue
necessary to judgment of first
action?
- Would dif. decision on fact have
changed the outcome?
-Were there alt. grounds?
if so, NOT precluded.

1b) Does a non-party preclusion exception apply?

Ginsberg's Six.
Step 4b) for CE
- Person who agrees to be bound by det. of action b/w others is precluded
- Pre-existing substantive legal relationship b/w person to be bound and original party to judgment
- If "adequately represented" in another suit by person w/ same interests
- If party "assumed control" over another's litigation
- Party bound by judgment cannot re-litigate by proxy
- Special statutory scheme consisten w/ due process, like bankruptcy proceedings, may preclude

2) Did claim end in a final judgment on

the merits?
-FRCP 41(b) All jdgmts are 'on the merits'
unless:
- Lack of venue
- Lack of Personal Jurisdiction
- Indispensable Parties
- Court says "not on the merits"
- Dismissed w/o prejudice

Not.

Yes.

If not exact, see Ginsberg

exceptions.

In Privity.
Claim not precluded.

Exact Party.
Not on merits.

On the merits
3) Claims are same from suit 1 and suit
2?
Test: Same transaction or occurrence?
"Common nucleus of operative fact"
? gets one shot to litigate everything
from same T/O
Note: Claims which could not have been
joined should not be barred.

4a) Party estoppel is asserted

against is from the first case?

No.

No.

By whom is estoppel claimed?

Yes.

1) Issue must be identical as litigated in

first action.
1 - What issue was decided in first
case?
2 - Is second lawsuit litigating the
same issue?

? & ? in first case

? was in first case

Mutuality Estoppel
- Asserted by either.

Defensive Estoppel
- Asserted by ? against ? .

- If ? & ? were both in first

case (in either config.) then
estoppel is mutual.

- This occurs when ? has

previously lost the issue
- Ex) Car wreck negligence
found against ? in other
case, ? can assert D CE.

? was in first case

Offensive Estoppel
- Asserted by ? against a
?.
- Occurs when ? has
previously lost an issue.
- Ex) Car wreck
negligence found against
? in earlier case, ? can
sometimes assert O CE.

Yes.
4) Was the judgment "final"?
Split in authority.
S.S. say that appeals process must
be concluded.
S.S. say that appeals process need
not be completed to apply to other jdgmt

No.

Always permitted. Issue Precluded.

Yes.
Issue offensively precluded only if fair.
Claim precluded.
Precluded party is S.m.o.L.

Would application of O CE be fair?

Four Factor Consideration Test
1) Did ? have full chance to ltigt?
If no, would likely be unfair
2) Could ? have foreseen multiple
suits? (incntive to litigate vigrously)
If no, would likely be unfair
3) Could ? have easily joined suit 1?
If yes, would likely be unfair. Crt
does not like "wait & see ? s)
4) Would there be an inconsistent
judgment? MOST IMPORTANT.
If yes, would likely be unfair.

AND REMEMBER KIDS: If a party does not assert res judicata or

collateral estoppel, it is WAIVED.

Public Policy
Equitable
Exception?

Conflict of Res Jud b/w States - 1738 Full Faith & Credit
- If a claim or issue was decided in a federal or state court, and is then
brought in another judicial system, the principles of res judicata and
collateral estoppel from the original jurisdiction applies per 1738
1)There is no equitable exception to res judicata. Per Rehnquist, Finality
IS simple justice + public policy.
2) Blackmum says there should be an equitable exception in addition to
simple justice and public policy