CIVIL PROCEDURE

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 CIVIL PROCEDURE OUTLINE

I. AN INTRODUCTION TO CIVIL PROCEDURE - DUE PROCESS .................... 4

Service of Process Rule 4 ........................................................................................... 4
Serving Other Papers Rule 5...................................................................................... 6
Constitutional Standard for Notice ............................................................................. 10
Opportunity to be Heard ............................................................................................. 11
II. REMEDIES & MISTAKES - FINANCING LITIGATION ................................. 16
III. PLEADINGS, SANCTIONS, AND THE COMPLAINT ..................................... 20
Pleadings ..................................................................................................................... 20
Sanctions Rule 11 ..................................................................................................... 20
The Complaint ............................................................................................................. 23
IV. THE DEFENDANTS RESPONSE - PRELIMINARY MOTIONS, ANSWER 29
Preliminary Motions (D) ............................................................................................. 29
ANSWERS (D) ............................................................................................................. 31
V. AMENDMENTS (P OR D) RULE 15 ................................................................... 36
Amending as a Right ................................................................................................... 36
Variance .................................................................................................................. 36
Amending after the SOL has run ................................................................................. 37
IV. JOINDER ................................................................................................................... 40
Permissive Joinder of Parties Rule 20(a)(P)........................................................ 40
CounterclaimsRule 13(a)(D)................................................................................ 43
Cross claimsRule 13(g)(D) .................................................................................. 45
Joinder of ClaimsRule 18(P or D) ....................................................................... 46
Impleader (Third Party Practice)Rule 14(D) ...................................................... 46
Necessary and Indispensable Parties--Rule 19(D) ................................................. 49
Intervention Rule 24 (outside party) ..................................................................... 51
VI. DISCOVERY............................................................................................................. 54
Automatic Disclosures 26(a) ..................................................................................... 54
Scope of Discovery 26(b)(1) ........................................................................................ 55
Work Product Rule ...................................................................................................... 56
Discovery Tools ........................................................................................................... 57
Discovery Conference 26(f) ..................................................................................... 59
Electronic Discovery ................................................................................................... 60
Enforcing Discovery 37............................................................................................ 61
VII. JURY AND ADJUDICATION ............................................................................... 62
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 Pretrial Adjudication................................................................................................... 62
Right to a Jury Trial and Selecting the Jury Rule 47 ............................................... 64
Motions at Trial- 41(a), 41(b), 50(a), 50(b), 59, 49, 61 ............................................. 67
VIII. APPEALS AND THE FINAL JUDGMENT RULE ........................................... 71
Verdicts Rule 48, 49, 58 ........................................................................................... 71
Appeals 1291, 1292 .................................................................................................. 71
IX. PERSONAL JURISDICTION................................................................................. 73
X. VENUE ........................................................................................................................ 84
Proper Venue 1391(a) .............................................................................................. 84
Transfer of Venue 1404 & 1406 ............................................................................... 84
Forum Non Conveniens ............................................................................................... 85
XI. SUBJECT MATTER JURISDICTION .................................................................. 87
Diversity Jurisdiction .................................................................................................. 87
Federal Question Jurisdiction..................................................................................... 88
Supplemental Jurisdiction ........................................................................................... 90
Removal ....................................................................................................................... 92
XII. ERIE DOCTRINE: CHOICE OF FEDERAL OR STATE LAW ...................... 95
XIII. FINALITY AND PRECLUSION ........................................................................ 100
Res Judicata / Claim Preclusion ............................................................................... 100
Issue Preclusion / Collateral Estoppel ...................................................................... 105
XIV. EXAM NOTES ...................................................................................................... 109

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I. AN INTRODUCTION TO CIVIL PROCEDURE - DUE
PROCESS
Due process of law under the 14th Amendment requires notice and an opportunity to be heard.

Due Process Clause:

5th Amendment FEDERAL GOVERNMENT [N]or shall any person . . . be deprived of life, liberty, or property,
without due process of law . . .

*Limits federal courts personal jurisdiction

14th Amendment STATE GOVERNMENT [N]or shall any State deprive any person of life, liberty, or property,
without due process of law . . .

14th Amendment: Acts as a safeguard from arbitrary denial of life, liberty, or property by the government outside the sanction
of law. SCOTUS interprets these clauses as providing four protections: procedural due process (in civil and criminal
proceedings), substantive due process, a prohibition against vague laws, and as a vehicle for incorporation of the Bill of
Rights.
Procedural: This protection extends to all government proceedings that can result in an individuals deprivation,
whether civil or criminal in nature (anything from parole violation hearings to full-administrative hearings about
gov. benefits)
Substantive: the governments attempts to limit liberty or property rights are presumptively invalid (i.e. a law that
limits a persons right to privacy)
Too Vague: Courts have held that laws too vague for the average citizen to understand deprive citizens of their right
to due process. If an average person cannot determine who and what is regulated, what conduct is prohibited, or
what punishment may be imposed by a law, courts may find that law to be void for vagueness.
Incorporation: Through this legal doctrine, the Bill of Rights, is applied to the states. The basis for incorporation is
substantive due process regarding the substantive rights enumerated elsewhere in the Constitution, and procedural
due process regarding procedural rights enumerated elsewhere in the Constitution.

Service of Process Rule 4

For everyone:
Was service of process within 120 days of filing the suit? (4m)
o See Rule 6 on how to compute time
Was the process a summons +copy of the complaint? (4c1)
Who served process?
o Was it someone >18 years old and not a party to the suit (4c2)
Federal court service of process need not be made by an officer, but it can be if
the P requests it (4c3)
Was the service reasonably calculated to apprise interested parties of the pendency of
the action. Mullane v. Central Hanover Bank
Was each defendant served with process? (If not, there may be a notice issue)

For an Individual:
Was process served in one of the ways allowed by Rule 4 on an individual?
o Was D served by Personal Service (4e2A)?
o Was D served by Substituted Service (4e2B)?
Was it left at the persons dwelling or usual place of abode? AND
Note: Court is very common sense about this. Summer house v. permanent
house
Note: Nanny does not work doesnt reside there
Left within someone of suitable age and discretion? AND
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 Does that person reside there?
o Was D served by Serving Defendants Agent (4e2C)
Was this person appointed by operation of law (like the Non-Resident Motorist
Act in MA) or appointed by contract with the defendant?
o Was D served by Following Method Permitted by State Law where the federal court
sits (4e1)?
Under provisions governing service on individuals in the court of the state where
that federal court sits (plaintiff in MA, serving in MA)
Service pursuant to the law of the state where the defendant is actually being
served (plaintiff from VA sues defendant from MA. May serve MA using MA
laws for service)
o Was D served by following a method permitted by state law where D is actually
served? (4e1)

For a Business:
Was process served in one of the ways allowed by Rule 4 on a business?
o Was the business served by a method permitted by state law? (4h1A)
o Was there delivery of a copy of the summons and complaint to an office, managerial
agent, or any other agent by appointment or law to receive service of process? (4h1B)
Note: This is less about the title and more about job responsibilities
Note: Service of process can confer jurisdiction over an individual defendant, but
a corporation is not subject to PJ in a state simply because an officer is served
while there for an unrelated purpose
o Was D served by following a method permitted by state law where D is actually
served? (4e1)

Was there a waiver of service of process?

Did plaintiff send a request by certified mail to the D?
Did the notice identify the court?
Did it include two copies of a waiver form and a prepaid means for returning the form (self-
addressed envelope)?
Did it inform the D of consequences of waiving service or not waiving service? (4d1D)
Did it include the date the request was sent? (4d1G)
Did P give D 30 days to respond? 4d1F
o If D responds in 30 days, they waived and they get 60 days to respond. Service is deemed
effective on the date of the filing of the waiver of service with the court
o P.S. Dont try to use waiver if youre close to the SOL mailing the waiver does not toll the
SOL period
o If D does not respond, P needs to serve process D must also pay the costs of service

Was the geographic service appropriate?

Was the defendant served with process in the state where the federal court sits? (4k1a)
o Ex. I am trying to sue D in a San Diego federal court. May I serve process on someone in
Northern California, almost to the Oregon border? Yes.
Was the defendant served with process in another state if the person is 100 miles from the court
house?
o Bulge Rule service is effective
o Ex. I live in Erwin, TN, can someone serve process on me to appear in Madison County,
NC court at my house? Yes, this is valid service.
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 Note: In Pennoyer, service and jurisdiction are intertwined because service of process within the forum state was the
predominant means of obtaining jurisdiction, as well as giving notice to the defendants of the suit. SO, here, if
service wasnt made properly, PJ was not obtained
Must have both service and jurisdiction to move forward with the case.

Was there sufficient proof of service?

Was any paper after the complaint that is required to be served together with the certificate of
service within a reasonable time after service?
o Exception: discovery requests and responses must not be filed until they are used in the
proceeding or the court orders filing depos, interrogatories, requests for docs or tangible
things, etc. (5d1)
Was it delivered to the clerk (5d2A) or to a judge who agrees to accept it for filing and who must
then note the filing date on the paper and promptly send it to the clerk (5d2B)
Electronic Filing: By local rule, court may allow papers to be filed electronically
Clerk may not refuse to file solely because its not in the form prescribed by these or local rules (5d4)

***12(b)(5) Motion attacks the sufficiency of service of process, not the power of the court to exercise
personal jurisdiction over him***

Serving Other Papers Rule 5

A party also has a right to notice of subsequent filings in the case. These are covered in Rule 5
Serving Other Papers

Was this one of the other things served?

o Discovery documents
o Motions
o Counterclaims
o Written notice
Was service made to the attorney?
Was service made by one of the acceptable methods?
o Was service made by handing it to the person (5b2A)
o Was service made by . . .
At the persons office with a clerk or other person in charge or, if no
one is in charge, in a conspicuous place in the office (5b2Bi)
If the person has no office or the office is closed, at the perosns dwelling
or usual place of abode with someone of suitable age and discretion who
resides there (5b2Bii)
o Was service made by mailing it to the persons last known address service is
complete on mailing (5bC)
o Was service made by leaving it with the court clerk if the person has no known
address (5bD)
o Was service made by sending it by electronic means if the person has consented
in writing (5bE)
o Was service made by delivery it by other means that the person consented to in
writing service is complete when the person making service delivers it to the
agency designated to make delivery (5b2F)
If serving numerous defendants, was a copy of every order served on all parties?
(5c2)
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 Filing Requirements
o Any paper after the complaint that is required to be served together with the
certificate of service must be filed within a reasonable time after service
o Exception: discovery requests and responses must not be filed until they are used
in the proceeding or the court orders filing depos, interrogatories, requests for
docs or tangible things, etc. (5d1)
o To file, it can be delivered to the clerk (5d2A) or to a judge who agrees to accept
it for filing and who must then note the filing date on the paper and promptly send
it to the clerk (5d2B)
o Electronic Filing: By local rule, court may allow papers to be filed electronically
o Clerk may not refuse to file solely because its not in the form prescribed by these
or local rules (5d4)

Rule 6 - How to compute time:

If the period is in days
o Exclude the day of the event that triggers the period
o Count ever day, including intermediate Saturdays, Sundays, and legal holidays
o Include the last day of the period, but if the last day is a Saturday, Sunday, or legal
holiday, the period continues to run until the end of the next day that is not a Saturday,
Sunday, or legal holiday
If the period is in hours
o Begin counting immediately on the occurrence of the event that triggers the period, count
every hour (including hours on intermediate Sat, Sun, and holidays), and if the period
would end on a Sat., Sun., or legal holiday, period continues to run until the same time on
the next day that is not a Sat., Sun., or legal holiday
Extending Time
o 6(1) When an act may or may not be done within a specified time, the court may, for
good cause, extend the time:
with or without motion or notice if the court acts, or the request is made, before
the time for extension expires (61A)
on a motion made after the time has expired if the party failed to act because of
excusable neglect (61B)
Exceptions: court must not extend time
50(b)-RJMOL,
50(d)-Time for Losing Partys New Trial Motion,
50(e)-Denying Motion for JMOL, and
60(b)-Grounds for Relief from Final Judgment

Motions, Notices of Hearing, and Affidavits

o Was a written motion and notice of a hearing must be served at least 14 days before the
time specified for the hearing?
o Exceptions: motion heard ex parte, rules set a different time, or when court order sets a
different time
+3 days Ruleonly applies to things served under Rule 5
o When a party may or must act within a specified time after service and service is made
under 5b2C, D, E, F (mailing it, leaving it with the court clerk, electronic means, delivery
it by any other means consented to in writing), 3 days are added after the period would
normally expire under 6(a) time computation
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Rule 4: Summons
Rule Category Content
4(1) Contents Summons must: name the court and the parties, be directed
to the defendant, state the name and address of the
plaintiffs attorney, state the time, notify defendant that a
failure to appear will result in a default judgment, be signed
by the clerk, bear the courts seal.
4(1)(b) Issuance Must make proof of service by presenting a summons to
the clerk for signature
4(c)(1) 4(c)(1) Must serve summons and a copy of the complaint
4(c)(2) Who may serve >18 years of age and a non-party

*This began in 1983. Before then, it had to be done by a

U.S. Marshall
4(d) Waiving Service Process for Waiving Service:
Plaintiff sends waiver to defendant by mail
(addressed to defendant or defendant subject to
service under 4(h), to an officer or managing agent,
etc)
Must include a copy of the complaint, two copies of
the waiver form, and a prepaid addressed envelope
for returning the form
Defendant must return 30 days after the request was
sent (or 60 days if outside the US)
Failure to Waive:
If no good reason, defendant is responsible for
expenses later incurred in making service and
reasonable expenses
If waive service D has 60 days to serve an answer to the
complaint (or 90 if outside U.S.)
4(e) Serving an Individual Five methods for serving process on individual:
Personal Service
Substituted Service: leaving at defendants dwelling
or usual place of abode with someone of a suitable
age and discretion who resides there
Serving an Agent: appointed by D or by operation
of law
4e(1) Serving by method allowed by state
4(h)(1) Serving Business Same as serving individuals under 4(e)
When looking at 4(e)(1), must look to states rules
on corporations, not individuals
To a corporate officer, managing or general agent,
or agent authorized to receive service
If a foreign corporation, see rule 4(h)(2).
4(k) Territorial Limits of Specifies when federal court may assert PJ over a
Effective Service defendant under Rle 4. Service of process asserts
jurisdiction in four circumstances
Long-Arm Statute for 4k(1)(A): under this, the reach of a PJ in a federal
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 federal courts court is the same as the reach of the PJ in the courts
of the state in which it sits
4k(1)(B): impleaded parties served w/in 100mi of
court house
4k(1)(C): when authorized by federal statute
FEDERAL CASES
4(k)(2): over parties with sufficient contacts with
the US as a whole to constitutionally support
jurisidiction, but whose contacts would not suffice
to support personal jurisdiction in the courts of any
state
4k1(C): service will support jurisdiction if some
other federal statute provides that service suffices
to support jurisdiction for a particular type of case

*just because 4(k) authorizes jurisdiction does not mean it

is always constitutional
4(l) Proving Service Unless waived, proof of service must be made to the court
4(m) Time Limit for 120 days after the complaint is filed. If the defendant is not
Service served in this time, the court (on a motion or on its own
after notice to the plaintiff) may dismiss without prejudice

Rule 5: Serving and Filing Pleadings and Other Papers

Rule Category Content
5(1) When Service of Order stating service is required, a pleading filed after the
Other Papers is original complaint, a discovery paper required to be served
Required on another party, a written motion, a written notice
5(b) How can service be A paper under Rule 5 can be served by:
made handing it to the person
leaving it (i) at the persons office with a clerk or
other person in charge or, if no one is in charge, in a
conspicuous place in the office; or (ii) at persons
dwelling or usual place of abode with someone of
suitable age and discretion that resides there
mailing it to the last known address
leaving it with the court clerk if the person has no
last known address
sending it by electronic means
delivery it by any other means the person consented
to in writing
5(d) Filing Any paper after the complaint that is required to be served,
must be filed within a reasonable time after service with a
certificate of service.

Exception: Discovery disclosures under 26(a)(1) and (2)

How a filing is made:

to the clerk
to the judge who agrees to accept it for filing, and
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 who must then note the filing date on the paper and
promptly send it to the cerk
Some local rules allow electronic filing
Clerk must not refuse to file a paper solely because it is not
in the form prescribed by these rules or by a local rule or
practice.

Rule 6: Computing and Extending

Rule Category Content
6(a) Computing Time Period in Days or longer period of time:
Exclude the day that triggers the period
Count every day, including intermediate Sat., Sun.,
and legal holidays
Include the last day of the period, but if the last day
is a Sat., Sun., or legal holiday, the period continues
to run until the end of the next day that is not a Sat.,
Sun., or legal holiday
Period in Hours:
Begin counting immediately on the occurrence of
the event that triggers the period
Count every hour, including hours during
intermediate Sat., Sun., and legal holdiays
If the period would end on a Sat., Sun., or legal
holiday, the period continues to run until the same
time on the next day that is not a Sat., Sun., or legal
holiday
6(b) Extending Time Court may, for good cause, extend time:
With or without a motion or notice if the court acts,
or if a request is made, before the original time or
its extension expires; or
On a motion made after the time has expired if the
party failed to act because of excusable neglect
Court must not extend time to act under 50(b)-
RJMOL, 50(d)-Time for Losing Partys New Trial
Motion, 50(e)-Denying Motion for JMOL, and
60(b)-Grounds for Relief from Final Judgment

Constitutional Standard for Notice

Mulane v. Central Hanover Bank held Notice must be reasonably calculated under all
circumstances to apprise parties of the proceeding. (Rule 4)
Can be Constitutional even if the defendant did not get actual notice
Example: service on wife at the defendants usual dwelling (substituted service). She
decides not to give her husband the summons. This is still Constitutional because the
notice was reasonably calculated under all circumstances to apprise parties of the
proceedings.
Jones v. Flowers If it becomes clear to the plaintiff that service was not received plaintiff might
have to try some other means of effectuating service
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 In this case, letters were returned to the state agency unopened and state was aware that
the party no longer lived at that address

Opportunity to be Heard
Notice:
i. US v. Hall Service was intended to him, though it was never effectuated (so he says).
Court upheld this as Constitutional.
ii. Notes:
i. Injunctions arising from public nuisance suits against gangs has gained popularity
in cities. Violation of the injunction terms is criminal contempt.
1. Problem: This leaves the determination of gang members up to judges and
police. Doubts of vagueness and excessive discretion.
ii. Court held that injunction could apply to all persons with actual notice and be
effective notice in Planned Parenthood Golden Gate v. Garbaldi.

Opportunity to be Heard
iii. Goldberg v. Kelly termination of welfare benefits recipient should have received the
right to be heard. Only a pre-determination hearing satisfies procedural due process.
iv. Mathews v. Eldridge evidentiary hearing for disability benefits without a hearing was
constitutional because there are administrative procedures that comport with the due
process
v. Access to Litigation Values: (page 41)
1. Dignity people have decreased self-respect when denied opportunity to
litigate their disputes / claims
2. Participation people should have a chance to exert their influence on our
legal / political system through access to the courts
3. Deterrence litigation can delineate between what is socially desirable
behaviors and what is not
4. Effectuation people should have the change to get what is rightfully
theirs
5. Procedural Justice fairness of procedure leads to legitimacy of decisions
and peoples acceptance of these decisions

Enemy Combatants
vi. Hamdi v. Rumsfeld Every citizen held in the US as an enemy combatant must be given a
meaningful opportunity to contest the factual basis for that determination before a neutral
decision-maker. Uses Mathews Test and concludes government interest is not so strong as to
outweigh personal liberty interest.
vii. Plurality decision: majority of Justices agreed on the outcome but not on the reasoning

Access to Courts
viii. Boddie v. Connecticut - Poor have a right to adjudication and demanding money to get a
diverse is unconstitutional as applied.

o Access to a Lawyer
ix. Lassiter v. Dept. of Social Services in Durham Co. Mom did not have the right to counsel
for custody hearing. Here, no liberty interest was implicated so no right to counsel.
x. Turner v. Rogers There was a liberty interest at stake (going to jail), safeguards were
present, and the government has an interest in the child and efficient administration of the
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 courts. No appointment to counsel is required here, but the safeguards were not working
correctly.

Due Process Cases

Case Issue Takeaway
Notice
US v. Hall Does the court have Courts have jurisdiction to punish for contempt in order to render
power to hold in judgment. Hall was not a party in the original case, but service
contempt a party who was intended to him, though he never received it.
was not effectively Rule 65(b): Temporary Restraining Order
served? Injunctions binding for non-parties (ex parte injunction)
65(d): is meant to embody, not to limit the ourts power
parties is defined as including Hall other persons
who are in active concert or participation with anyone
described in 65(d)(2)(A) or (B).
Goldberg v. Does due process Terminative welfare (property interest) without a hearing prior to
Kelly require notice and an termination denies due process in violation of the 14th
(1970) opportunity to be Amendment.
heard before the Requires NOTICE
government Decision must be made SOLELY on the legal rules and
terminates welfare evidence
benefits? IMPARTIAL decision maker
Only a pre-determination hearing satisfies the procedural
due process

The extent to which procedural due process must be afforded to

the recipient is influenced by the extent to which he may be
condemned to suffer a grievous loss and depends on whether
the recipients interests in avoiding loss outweighs government
interests in summary jurisdiction.

Court does not prescribe the kind of hearing needed because

dont want to infringe on autonomy of the administrative
agencies.

Dissent: Policy Counterargument (Black Dissent)providing

additional process is problematic because it will impose
significant financial and administrative burdens on the state, plus
it may make it difficult for the state to sustain the public welfare
system because it is difficult to terminate those who they think
no longer needed assistance.
Mathews v. Whether the Due An evidentiary hearing is not required prior to the termination of
Eldridge Process Clause of the disability benefits and that the present administrative procedures
(1976) 5th Am. Requires that fully comport with due process.
prior to the Unlike Goldberg, not determined by financial need but by
Due termination of social medical issues that can be proven (& should be unbiased)
Process is security disability (something qualitatively different about health care)
flexible benefit payments the The cost of moving forward is not realistic in terms of

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 recipient can be public interest -- not the controlling factor but should be
afforded an weighed
opportunity for an If using these for financial need, there are other avenues
evidentiary hearing? to take

3 part Eldridge Test: Test for what process is required when

adjudicating personal rights:
Private interest that will be affected by official action
Gov. Interest (fiscal / administrative burden) including
function involved in the fiscal and administrative burdens
that the additional or substitute requirements would entail
Risk / Impact of erroneous termination and probable
value of imposing addl process

Dissent: Consequences were severe; the family was destitute.

Enemy Combatants
Hamdi v. Does Due Process Due process demands that a citizen held in the US as an enemy
Rumsfeld extend to US citizens combatant be given a meaningful opportunity to contest the
(2004) who have become factual basis for that determination before a neutral decision
traitors of their maker. The government interest in national security does not
country? Writ of outweigh personal liberty and deprivation of liberty.
Habeus Corpus
should be BUT, certain elements of the hearing may be tailored to alleviate
implemented? the burden it may cause:
For example: heresy may be accepted as the most reliable
evidence for gov.
Constitution would not be offended by the presumption in
favor of the gov. evidence; so long as that presumption
remained a rebuttable one and fair opportunity for
rebuttal was provided
The burden could be put on the D to rebut the evidence
with more persuasive evidence that he/she falls outside
the criteria
Illustrates Eldridge test: personal interest is liberty
interest; Ps liberty interest was a stake, the realities of
war and the Ps background in the Taliban warranted less
procedural protection than domestic criminal defendants
DP requires that a US citizen held in the US as an enemy
combatant must receive notice of the factual basis for his
detention and be given a meaningful opportunity to
contest the factual basis for the detention before a neutral
decision maker
Creates a streamlined DP

Alternative View: Courts should not apply Mathews test

Connecticut Whether a state
because the level of procedural due process to be given to P who
already determined by the legislature and Constitution.
Pre-Attachment Hearing
Illustrates Eldridge test, but this time gov. not one of the parties,
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v. Doehr statute that authorizes b/c state action is involved via courts system, DP implicated.
(1991) prejudgment Doehr was only notified after his house was attached.
attachment of real Prejudgment attachment without notice or hearing no
estate without prior extraordinary circumstances and without requirement of
notice or the bond does not satisfy DP
opportunity for a Modified version of the Matthews Testsince this is not
hearing, without an action against the government for consideration of a
extraordinary private interest 1. Property interest is significant (even
circumstances, and though deprivation is temporary, court says it still
without the requires DP); 2. Safeguards against erroneous deprivation
requirement that a are not present; 3. Gov. interest in ensuring availability of
person seeking assets does not outweigh the property interests b/c there
attachment post a are other ways to ensure an availability of assets
bond satisfies the DP Extreme deprivation no necessary to trigger DPwho
clause of the 14th cares if it is 3, 10, or 50 days
Amendment. Real estate cannot be attached prior to notice/hearing to the real-
estate owner without a showing of extraordinary circumstances
and a requirement that moving party post a bond.
Indigent Access to Courts
Boddie v. Whether or not Creates the rule that a court should waive filing fees for divorce /
CT (1971) restricting due process access to court considerations.
somebodys access to Unconstitutional as applied on the grounds that DP
courts b/c of prohibits a state from denying, solely b/c inability to pay,
litigation fees is access to its courts to individual who seek judicial
unconstitutional dissolution of their marriage of indigence of claimants.
when it comes to DP The States monopoly over techniques of binding conflict
rights? resolution could hardly be said to be acceptable under our
scheme of things.
Absence of procedures take claimants plight into account
Good faith need of adjudication (fundamental human
relationship
Review of a 12b motion to dismiss

Alternative view: the majoritys view should be only adopted in

criminal settings where a Ds liberty interest is at stake, not in
civil suits where Ds and Ps do not have the same interest
implicated.
Access to a Lawyer
Lassiter v. Under the DP Clause, An indigent litigant has a right to be appointed counsel only
Dept. of should an indigent when, if he loses, will be deprived of physical liberty. Here, there
Social person be guaranteed is no threat to physical liberty. Mother is not entitled to counsel.
Service the right to counsel in
(1981) civil instances such Illustration of Eldridge Test:
as parental custody 1. Parents interest in the child
hearings? 2. Safeguards 30 day petition, findings of fact made by the
jury, simple standards for termination
3. Gov. interest = administrative burden

As a litigants interest in personal liberty diminishes so does

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 their right to appointed counsel. If the appointment of counsel
would not have been outcome determinative, and if the states
interests outweigh the individuals interest, then no change in the
procedure.

Dissent (Blackmun): magnitude of deprivation should be

considered
Turner v. Whether or not DP Applies the Eldridge test and finds that there is:
Rogers grants an indigent D 1. Liberty interest = not being held in jail
(2011) a right to state- 2. Safeguards are present
appointed counsel in Notice to the D that ability to pay is a critical issue
civil contempt Use of a form to get relevant financial information
proceeding which Opportunity to respond
may lead to Express finding by the court that the defendant has the
incarceration ability to pay
3. Gov. interest in child and administrative burden
= No appointment to counsel is required in civil cases

Note: D doesnt have a right to appointed counsel since the other

parent did not either (providing counsel to dad would create an
unfair asymmetry of representation that would alter
significantly the nature of the proceeding.

State is not required to provide counsel, but the safeguards in

place are not working correctly to make the process fair.

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I. REMEDIES & MISTAKES - FINANCING LITIGATION
American Rule = Each party is responsible for paying her own attorneys fees
Encourages innovative claims

Fee Shifting Statutes (42 U.S.C. 1988) require the defendant to pay the plaintiffs reasonable attorneys
fees if the plaintiff prevails.
In 60s and 70s, lower courts adopted the idea that fees should shift when Ps acted as private
attorney generals. SCOTUS overturned this idea in Alyeska Pipeline Serv. Co. v. Wilderness
Socy (1975)
o Fee shift fundamentally provides an incentive to plaintiffs to file suit, an incentive to
lawyers to represent those plaintiffs, and a deterrent to defendants at risk of such suits
Congress responds by passing Civil Rights Attorneys Fees Act of 1976 (42 USC 1988)
o Provides only shifting prevailing plaintiffs fees to the defendants; a losing plaintiff is not
obliged to pay the defendants attorneys fees (one-way shift)
o Court may still order a plaintiff who brings a totally frivolous or groundless suit to pay
the defendants attorneys fees under Rule 11 court may order payment of some or all
the reasonable attorneys fees and other expenses as a sanction for filing a pleading or
motion without adequate inquiry, unwarranted by existing law or fact, or based on
frivolous arguments
42 USC 1988 has been read as authorizing courts to order defendants to pay attorneys fees of
prevailing Ps, but generally not to authorize courts to order Ps to pay attorneys fees of
prevailing Ds
o Exception: Frivolous, unreasonable, without foundation
o Does not explain what constitutes as a reasonable fee

Do fees shift?
Is there a fee shifting statute?
shifts prevailing plaintiffs fees to D

How are costs calculated?

Costs may include fees for experts:
o Rule 54(d) costs other than attorneys fees should be awarded to prevailing party unless
the court/statute holds otherwise (costs for Ps experts are included)
o Rule 26(a)(4)(C) authorizes judges to require a party seeking discovery to pay the
reasonable fee of an expert responding to discovery
Clerk calculates the fees when entering the judgment
Costs after a Rule 68 Settlement Offer Marek v. Chesny
o Rule 68 requires that a P pay their own costs incurred after settlement offer IF they reject
the settlement and the judgment is less than settlement offer
o costs is construed to include attorney fees
o After Marek, if an underlying statute defines attorneys fees as costs, then attorneys fees
must also be included in Rule 68 offers
o Encourages pretrial settlement between the parties
o SHAW SAYS this should be used more it puts P in an uncomfortable position

Litigation Begins: Offer of Settlement Verdict for P

Attorney Fees = $0 Accrued fees =$30,000 less than settlement
16
 Accrued fees = $300k

42 USC 1983 Civil Action for deprivation of rights

Allows individuals to sue for monetary damages for the violation of constitutional rights or
protection by state actors

42 USC 1920 deals with costs

Conditional Offer of Settlement Jeff Dd

Evans v. Jeff D. (1986) If Ds offer requires P to waive attorneys fees (attorney wont get
paid), but the offer is exactly what the P seeks, attorney must accept on behalf of their client
o POLICY RESPONSE: Now firms make their clients sign contracts to prevent this
forfeiture of attorneys fees

Frivolous Claims
A D may receive an award of fees under 1988 in lawsuits bringing frivolous claims, but only for fees
and costs that the D would not have incurred but for the frivolous claim.
Unfortunately, deciphering what is a frivolous and not a frivolous claim is easier said than done
(Fox v. Vice 2011 Justice Kagan)

The Contingency Fee

Contingency Fee: agreements that allow the attorney to take a % of Ps award (usually 1/3) if
they win the suit, used mostly in personal injury lawsuits
Contingency fee agreements make lawyers more sensitive to the return on their investment
o May lead some lawyers working on the case less time than optimal opposite may be
true for lawyers who work on an hourly fee basis
A lawyer may collect under a fee shifting statute and a part of the judgment due to their
contingency (Venegas v. Mitchell 1990 court enforced cont. fee arrangement)
o A statutory award of attorneys fees does not invalidate a plaintiffs ability to become
bound by an agreement, even if the private fee is larger than the statutory award

Third-Party Litigation Financing

Traditionally, contingency fee lawyers self-funded litigation. Now, there are third-party investors.
Cash Advance Industry for Personal Injury Victims
Investment in Commercial Litigation by Investment Funds
Law-Firm Finance

Rule Category Summary

54(d)(2) Costs; Attorneys Costs other than attorneys fees are to be awarded to prevailing
Fees parties unless the court otherwise directs or particular statutory
provisions apply. This may include plaintiffs experts.
Must be made by motion
Be filed no later than 14 days after the entry of judgment
Specify the judgment and the statute, rule, or other grounds
entitling the award
State the amount sought or provide a fair estimate of it
Disclose, if the court orders, the terms of any agreement
68(a) Making an Offer Party defending against a claim may serve on an opposing party an
offer to allow judgment on specified terms with costs then accrued
17
 within 14 days before the date set for trial.

To accept, the opposing party serves written notice accepting the

offer, either party may then file the offer and notice of acceptance,
plus proof of service. Clerk then enters judgment.
68(b) Unaccepted Offer An unaccepted offer is considered withdrawn, but does not preclude
a later offer. Evidence of an unaccepted offer is not admissible
except in proceedings to determine costs.
68(c) Offer after Liability When one partys liability to another has been determined but the
is Determined extent remains to be determined until further proceedings, the party
held liable may make an offer of judgment. It must be served within
a reasonable time, but at least 14 days before a hearing to determine
the extent of liability.
68(d) Paying Costs After If the judgment that the offeree finally obtains is not more
an Unaccepted favorable than the unaccepted offer, the offeree must pay costs
Offer incurred after the offer was made.

Financing Litigation Cases

Case Issue Takeaway
Awarding Fees after Offer of Settlement
Marek v. Whether attorneys Father sued three cops after the death of his son. They offered
Chesney fees incurred by a P him a settlement of $100k, but he declined. Later, his judgment
(1985) subsequent to an came in under that amount. D challenged Ps requests for costs
offer of settlement under Rule 68.
are to be paid by the Costs under Rule 68 include attorneys fees, if the
defendant when the attorneys fees are defined as costs in the relevant fee-
plaintiff receives a shifting statute that a P is using then they are costs for
monetary judgment, the purposes of 68(d)
which is less than If a pre-trial offer is NOT accepted and judgment entered
the settlement offer? is less than the settlement, the offeree must pay the costs
incurred (by themselves) after the making of the offer.
Whether costs as Defendants settlement offer was valid even though it
used in Rule 68 lumped damages and costs together, because if not, a
includes attorneys Defendant would be unlikely to make settlement offers.
fees award under 42 This holding does not frustrate Plaintiffs efforts to
USC 1988? determine whether Defendants offers are adequate.
Plaintiff is aware of the amount of damages sought.
Requiring itemization of damages separate from costs
would not in any way require that the plaintiff know in
advance whether the judgment at trial will exceed a
defendants offer.
Takeaway:
Costs include attorneys fees and those are to be
included in costs under Rule 68
Under 1983, Congress expressly provided that costs
included attorneys fees are avoidable to the Plaintiff in
such a suit and such fees are subject to the fee-shifting
statute of Rule 68.
18
 Applying Rule 68 in context of 1983 action is consistent
with the policies of 1983, which encourages Plaintiffs to
bring Civil Rights suits, while Rule 68 encourages
settlements.

Dissent: This goes against the history and structure of FRCP and
will produce absurd variations of Rule 68 in operation
Majority ruling would also allow Ds to game the
settlement offer system by making a settlement offer
early in hopes that if P wins a judgment less than the
offer, they will not have to pay Ps costs for a large part of
the litigation process.
Assessing the Value of Legal Services
Hensley v. What is the A reasonable attorneys fee can be calculated by hours
Eckerhart reasonable reasonably expended on the litigation multiplied by a reasonable
(1983) calculation of hourly rate
attorneys fees? *this is the Lodestar Approach*
City of Whether an award of P brought a Civil Rights suit against D. P won and was awarded
Riverside v. attorneys fees under damages and attorneys fees. Attorneys fees were more than the
Rivera 42 USC 1988 is per damages and D challenged the size of the attorneys fees given
(1982) se unreasonable their youth and the size of the award.
within the meaning Lodestar Approach: reasonable hourly rate x hour
of the statute if it Attorneys fees do not need to be proportionate to
exceeds the amount damages awarded
of damages Attorneys should be compensated at MV, no multiplier
recovered by the and no distinction based on the type of law
plaintiff in the A rule limiting fees would seriously undermine Congress
underlying Civil purpose in 1988; the court rejected Ds argument that fees should
Rights Action? resemble a contingency rate typical of civil cases since it would
discourage lawyers from taking civil rights cases

19
II. Pleadings, Sanctions, and the COMPLAINT
Pleadings
A pleading (Rule 7) is a document that a lawyer must file at the beginning of the litigation. These are
documents that parties file with the court and serve on each other. The purpose of pleadings is to
provide notice.
Complaint: sets forth the plaintiffs claims
Answer: the defendants response
Other Pleadings as defined in Rule 7: answer to a counterclaim designated as a counterclaim;
answer to a cross claim; third-party complaint; an answer to a third-party complaint; if the court
orders one, a reply to an answer (12(1)(C) requires this to be done within 21 days)

Forms of the pleading: Rule 10

Does the pleading have a caption with the courts name, a title, a file, number, and a rule 7(a)
designation?
Was the pleading include names of all parties? Doe v. United Services
Does the party must state its claims or defenses in number paragraphs?
A statement in a pleading may be adopted by reference somewhere in the same pleading

Sanctions Rule 11
Penalties or other means of enforcement used to provide incentives for obedience with the law, or with
rules. Aimed at avoiding baseless, frivolous claims. Applies to any document other than discovery.

Rule 11 provides that a lawyer, by presenting to the court a pleading, motion, or other paper, certifies
that to the best of that lawyers knowledge, information, or belief formed after an inquiry reasonable
under the circumstances, that he or she has complied with all the requirements under the rule.

1. Continuing Certification - Rule 11(a)

a. Attorney certifies that four things under 11(b) are true when submitting documents
and every time something is done or advocated from that document Chaplin v.
DuPont
i. 11(b)(1): Is this being presented for an improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of litigation?
ii. 11(b)(2): Are the claims, defenses, and other legal contentions are warranted
by existing law or by a nonfrivolous argument for extending, modifying, or
reversing existing law or for establishing new law?
iii. 11(b)(3): Are the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support after a
reasonable opportunity for further investigation or discovery?
iv. 11(b)(4): Are the denials for factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based on belief or a
lack of information?
2. Sanctions are discretionary, not required
3. Safe Harbor Provision Rule 11(c)(2)
A motion for sanctions must be served under Rule 5
Motion must not be filed or presented to the court if the claim is corrected within 21
days
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 4. What sanctions are available?
Court must not impose a monetary sanction for 11(b)(2) frivolous argument
Requires that the court issue a show-cause order under 11(c)(3) court may order an
attorney, law firm, or party to show cause why conduct described in the order has not
been violated
5. Sanctions in Rule 11 are not available for discovery

There are six parts of the current and prior versions of the Rule that have drawn (or draw) the most
attention:
The triggering conduct: Should lawyers be subject to sanctions if she violates the rule even when
acting in good faith?
Judicial discretion to sanction: Some argue that sanctions should be mandatory once there has
been a violation for the rule.
The nature of sanctions: Sanctions can be monetary or nonmonetary and the availability of or
preference for the monetary sanctions can alter litigation behavior by those with novel claims or by
those who are risk-averse. Also, have to think about if monetary sanctions should be based on
attorneys fees or something else? Should they be paid to the court or to the other party?
The timing of the compliance obligation: A lawyers signature on the pleading or motion
constitutes a series of representations to the court, but are those static at the time of signing or are
they fluid thereafter?
The ability to avoid sanctions: There is some debate about whether or not lawyers should be given
notice and an opportunity to fix the problem before they are sanctioned. The current rule has a safe
harbor provision.
The target of sanctions: the current rule allows for the court to impose a sanction on more than one
attorney who signed the pleading or motion.

Rule Category Content

11(a) Signature Every pleading, written motion, and other paper must be
signed by at least one attorney of record. Paper must state the
signers address, email, and phone.
11(b) Representations to the court By presenting to the court a pleading, written motion, or other
paperwhether by signing, filing, submitting, or later
advocating itan attorney or unrepresented party certifies that
to the best of the persons knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances
(Note: reasonable inquiry may vary. If a client runs into the
office 10 minutes before the filing deadline, inquiry must be
reasonable in those circumstancesFreer)
11(b)(1): It is not being presented for any improper
purpose, such as to harass, cause unnecessary delay, or
needlessly increase the cost of litigation;
11(b)(2): the claims, defenses, and other legal contentions
are warranted by existing law or by a nonfrivolous
argument for extending, modifying, or reversing existing
law or for establishing new law;
11(b)(3): the factual contentions have evidentiary
support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for
further investigation or discovery; and
21
 11(b)(4): the denials for factual contentions are warranted
on the evidence or, if specifically so identified, are
reasonably based on belief or a lack of information

11(c) Sanctions Safe Harbor (1) After notice and a reasonable opportunity to respond,
Provision court determines that 11(b) was violated, can impose
sanction against any attorney, law firm, or party.
Absent exceptional circumstances, law firm must be
held jointly responsible for a violation committed by
its partner, associate, or employee.
(2) Motion must be served on the party (under Rule 5) and
they have 21 days to correct before files or presented
to the court

11(c)(3) Show Cause Court may order an attorney, law firm, or party to show cause
why conduct specifically described in theorder has not
violated 11(b). (court cant impose monetary sanctions on its
own with a show cause order)
11(d) Inapplicable to discovery -----

Sanctions Cases
Case Issue Takeaway
11(b) Issues
Caplin v. Whether the civil DuPont placed a ban on confederate flag at work. Ps defied the
DuPont complaint satisfies ban and filed suit for employment discrimination under Title VII
Advance the requirements of of the Civil Rights Act claiming they were being discriminated
Fiber Rule 11? on account of their race, national origin, and association with
Systems Confederate Southern Americans.
(2004) Prior to the ruling of There are three factors in determining whether a party
the DC, DuPont has complied with 11(b) to avoid a sanction:
served Ps its Rule 11 o Complaint must be filed for a proper purpose
motions for o Each count of the compliant must have a
sanctions, along with sufficient basis in the law if each party is
a letter requesting sanctioned then it must have NO basis in the law
that they voluntarily o Each of the claims must have a sufficient basis in
dismiss the action fact
within 21 days. Factual contradictions may be
Thereafter, when sanctionable
plaintiffs failed to A lawyer who does not make a reasonable
dismiss their claims, investigation into the factual basis of his
DuPont filed its clients claims is sanctionable
sanctions motion o Have evidentiary support or will have evidentiary
with the district support (Added in class)
court. In order to satisfy Rule 11, an attorney must submit
everything to the court for 1) proper purpose, 2)
warranted under current law and not frivolous, and 3)
based on factual evidence to support such claims

22
The Complaint
Did the complaint include three things under 8(a)(1)?
1. short and plain statement for the courts subject matter jurisdiction
2. short and plain statement showing you are entitled to relief (8a2)
a. Conley Standard: compliant is sufficient unless there is no set of facts on which the
plaintiff could prove to win the claim
b. Twiqbal Standard: P must plead facts to support a plausible claim
i. Three Rules for Twiqbal:
1. Court focuses only on alleged facts, ignoring conclusions of law
2. Facts must support a plausible claim, not just a possible claim
3. To determine plausibility, judge uses her own experience and common
sense (subjective)
ii. Exception: Courts will allow liberal notice pleading in pro se complaints (Erikson
v. Pardus 2007)
3. Demand for the relief sought, prayer for relief

Heightened Pleading Requirement

Is there an allegation of fraud or mistake?
o 9(b): When alleging fraud or mistake, must state the circumstances with particularity
o It is not enough to say he defrauded me- circumstances must be stated with
particularity Bower
Is there an allegation of special damages?
o 9(g): If alleging special damages, must allege with specificity. Special damages are those
that do not normally flow from the event.
o Ex. Errection case form car accident
Is there a denial of a condition precedent?
o 9(c): If pleading a condition precedent, it suffices to allege generally that all conditions
precedent have occurred or been performed. But when denying a CP, a party must do so
with particularity.

***Unless there is a rule like 9(b) or 9(g) that requires a heightened pleading requirement, the court
cannot impose that requirement on you***

Complaint Cases
Case Issue Takeaway
Notice Pleading Standard
Conley v. Whether After Plaintiffs were fired, they brought a class action against their
Gibson petitioners union representative for violating the Railway Labor Act. D moved to
(1957) failed to state dismiss for failure to state a claim on which relief can be granted
a claim on (12(b)(6)).
which relief
could be CONLEY TEST: a complaint may be dismissed under 12(b)(6) when it
granted? Is appears beyond a doubt that the plaintiff can prove no set of facts that
the claim support his claim for relief.
sufficient?
Policy Rationales:
Court assumed that most plaintiffs could not provide substantial
23
 facts at the pleading stage and that these facts would be gleaned
during the discovery phase they also believe that this is logic
behind FRCPs design
At pleading stages, the courts should be more concerned with
keeping plaintiffs claims in court rather than keeping out non-
meritorious claims. This function is best served after discovery
at the summary judgment phase.

Plaintiff woncomplaint stated a sufficient circumstance in which

there was a harm done and wherein there was a judicial remedy.
Petitioners did not have to list a set of detailed facts supporting their
complaint.
Heightened Pleading Requirement
Bell Atlantic What must a Anti-trust claim against a telephone and internet services arranged not
v. Twombly plaintiff plead to complete. Claim based on allegation of parallel conduct, which may
(2007) in order to be evidence of a violation, but is not in itself a violation.
state a claim? Plaintiff must allege enough facts to state a plausible claim.
Assuming they are true, factual allegations must be enough to
raise a right of relief above speculation
Facts should be sufficient to allow a reasonable expectation that
discovery will reveal evidence of illegal agreement
Pleading sufficient facts requires more than labels and
conclusions more than a formulaic recitation of cause and
action elements
Reasoning: Judicial economy; leads to more specific responses, shorter
discover period, less fishing expeditions
Dissent: Judicial opinion that a charge is not plausible should not be
grounds to dismiss; to dismiss, judge must accept all factual allegations
as true and that certainly did not happen here; other means of managing
judicial economy and costs (like 12(e) for a more definite statement,
7(a) permits court to order P to reply to Ds answer, rule 23 provides
rigorous analysis for class certifications.
Dissent: Plaintiff should have their day in court.
Ashcroft v. Does a Iqbal arrested and detailed after 9/11. Says federal officers violated his
Iqbal (2009) complaint civil right while in detention. Sued the government using a Bivens
need to be Action.
plausible Bivens Action implied right of action that allows a P to sue
under the the federal government when one of its employees violates their
circumstances civil rights, like a 1983 suit except for federal actors
and factually Twombly pleading standard affirmed: To survive a 12(b)(6) motion
true to be to dismiss, complaint must state a claim of relief that is plausible on
well-pleaded? its face.
Plausible on its face when P pleads facts that allow the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged
Facts must show that D acted unlawfully, not just that it is
probable or possible that D acted unlawfully
Legal conclusions do not meet this standard UNLESS they are
backed by facts
24
 o Legal conclusions are disallowed because they do not
allow the court to draw the reasonable reference that D
is liable for the misconduct alleged.
After Twiqbal:
P must plead more facts to survive 12(b)(6) motion later
Liberal pleading standard designed by FRCP drafters has now
been replaced by a heightened pleading standard.
Exception: Courts still allow liberal notice pleading for pro se
complaints.
Special Pleading Requirements
Bower v. Whether Ds D makes a promise that he will support P and her daughter. D later
Weisman motion for reneges and P files suit.
(xxx) 12(e) should
be granted? D filed preliminary motions:
Whether Ds 12(e) motion for a more definite statement
9(b) motion o Granted when the complaint is so excessively vague so
should be as to be unintelligible
granted? o Must be filed prior to Ds responsive pleading and
Whether any must be so vague as to prevent D from preparing a
of the claims responsible pleading
should be o A complaint that fails to specify which Ds are
dismissed charged with what claims will suffice
on failure to o Motion must point out the defects that require
state a claim clarification
on which o If court grants motion, and P does not submit a new
relief can be pleading within 14 days of that order, then the court
granted? make strike the faulty pleading or issue another
remedy
9(b) motion to dismiss for failure to state fraud with
particularity
12(b)(6) motion do dismiss for failure to state a claim on
which relief could be granted
o P must plead all necessary elements to survive a motion
to dismiss and court must view evidence in light most
favorable to D
A complaint needs to specifically define which defendant is the
subject of each claim and any claims that lack factual allegations to
satisfy each element will be dismissed. Plead elements of your
claims with specificity to defeat a 12(b)(6).
Anonymous Plaintiffs
Doe v. Whether the P believes the high premium to his insurance was due to his living with
United plaintiff is another man in Greenwich Village and therefore fitting the profile of a
Services Life required homosexual. This was during the aids epidemic.
Insurance under Rule
Company 10(a) to use 10(a) generally requires parties to proceed under their real names
his real name unless there are severe privacy concerns such as being labeled as a
in a suit. homosexual.

Although, generally litigants must disclose their names, courts have

25
 made a few exceptions:
To protect privacy in a very private manner. (birth control,
abortion, transsexuality, welfare rights of illegitimate children)
Danger of physical harm
Econ / Prof reasons should not permit parties to protect their identity

Pleadings Allowed; Forms of Motions and Other Papers Rule 7

Rule Category Content
7(a) Pleadings Only these pleadings are allowed:
(1) a complaint;
*Note: Only the (2) an answer to a complaint;
complaint needs to (3) an answer to a counterclaim designated as a counterclaim;
be served under (4) an answer to a cross claim;
Rule 4; others may (5) a third-party complaint;
be served under (6) an answer to a third-party complaint; and
Rule 5. (7) if the court orders one, a reply to an answer
(this is one of the options mentioned by the Iqbal dissent)
7(b) Motions and Other In general, a request for a court order must be made by motion a motion
Papers must:
(A) be in writing unless made during a hearing or trial;
(B) state with particularity the grounds for seeking the order; and
(C) state the relief sought
7(b)(2) Form The rules governing caption and other matters of form in pleadings
apply to motions and other papers.

General Rules of Pleadings Rule 8

Rule Category Content
8(a) Claim for Relief A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the courts
jurisdiction, unless the court already has jurisdiction and the
claim needs no new jurisdictional support
(2) a short and plain statement of the claim showing that the pleader
is entitled to relief;
(3) a demand for the relief sought, which may include relief in the
alternative of different types of relieve
8(b) Defenses;
Admissions and
Denials
8(c) Affirmative
Defenses
8(d) Pleading to be Allows P to assert as many claims as he wants regardless of their
concise and direct; consistency. This allows P to plead alternate theories, but rule DOES
alternative NOT ALLOW P to plead inconsistent facts.
statements;
inconsistency
8(e) Construing Pleadings must be construed as to do justice.
Pleadings.
26
 Pleadings must be
construed so as to
do justice

Pleading Special Matters Rule 9

Rule Category Content
9(a) Capacity or In general. Except when required to show that the court has jurisdiction,
Authority to Sue; a pleading need not allege:
Legal Existence A. partys capacity to sue or be sued
B. a partys authority to sue or be sued in a representative capacity
C. the legal existence of an organized association of persons that is
made a party
9(b) Fraud or Mistake; In alleging fraud or mistake, a party must state with particularity the
Condition of Mind circumstances constituting fraud or mistake. Malice, intent, knowledge,
and other conditions of a persons mind may be alleged generally.
9 Conditions Will be assumed to have occurred or have been performed, but must
Precedent plead with particularity if you are denying it has occurred or been
performed
9(g) Special Damages If an item of special damage is claimed, it must be specifically stated

Form of Pleadings Rule 10

Rule Category Content
10(a) Caption; Name of Every pleading must have a caption with the courts name, a title, a file
the Parties number, and a Rule 7(a) designation. The title of the complaint must
name all the parties; the title of the other pleadings, after naming the
first party on each side, may refer generally to other parties.
9(b) Paragraphs; A party must state its claims or defenses in numbered paragraphs, each
Separate Statements limited as far as practicable to a single set of circumstances. A later
pleading may refer by number to a paragraph in an earlier pleading. If
doing so would promote clarify, each claim founded on a separate
transaction or occurrence and each defense other than denial, must be
stated in a separate count or defense.
9(c) Adoption by A statement in a pleading may be adopted by reference elsewhere in the
Reference; Exhibits same pleading or in any other pleading or motion. A copy of a written
instrument that is an exhibit to a pleading is a party of the pleading for
all purposes.

Plaintiff and Defendant; Capacity; Public Officers Rule 17

Rule Category Content
17(a) Real Party in Interest An action must be prosecuted in the name of the real party in
interest. The following may sue in their own names without
joining the person for whose benefit the action is brought:
A. an executor;
B. administrator;
C. guardian
D. bailee
E. trustee of an express trust

27
 F. a party with whom or in whose name a contract has been
made for anothers benefit
G. a party authorized by statute
17(a)(2) Action in the Name of the (4) when federal statute so provides, an action for
United States anothers use or benefit must be brought in the name of
the United States
17(a)(3) Joinder of the Real Party in The court may not dismiss an action for failure to prosecute in
Interest the name of the real party in interest until, after an objection, a
reasonable time has been allowed for the real party in interest
to ratify, join, or be substituted into the action. After
modification, joinder, or substitution, the action proceeds as if
it had been original commenced by the real party in interest.
17(b) Capacity to Sue or Be Sued Capacity to sue or be sued is determined as follows:
(1) for an individual who is not acting in a representative
capacity, by the law of the individuals domicile;
(2) for a corporation, by the law under which it was
organized; and
(3) for all other parties, by the law of the state where the
court is located, except that:
a. a partnership or other unincoroproated
association with no such capacity under that
states law may sue or be sued in its common
name to enforce a asubstantive right existing
under the US Constitution and its laws; and
b. 28 USC 754 and 959(a) govern the capacity of
a receiver appointed by a US court to sue or be
sued in US court
17(c) Minor or Incompetent (1) With a representative may sue or defend on behalf
Person of a minor or an incompetent person: general guardian,
a committee, a conservator, or a like fiduciary
(2) Without representation minor who does not have a
duly appointed representative may sue by a next friend
or by a guardian ad litem. The court must appoint a
guardian ad litem or issue another appropriate order
to protect a minor or incompetent person who is
unrepresented in this action.
17(b) Raise similar but different concerns than those implicated by
and 17(a). With these, we are concerned about those individuals
17(c) ability to sue

28
III. The Defendants Response - PRELIMINARY MOTIONS,
ANSWER
Preliminary Motions (D)
Defendant may respond to the complaint by answer or by motion.
Preliminary motion is not a pleading so Rule 8 does not apply

Timeline:
Was preliminary motion served within 21 days of being served with process? 12(a)(1)(A)(i)
o Do you need an extension?
6(b) if you need an extension: Court may do with or without motion if the court
acts, or if a request is made, before the original time for extension expires or on a
motion made after the time has expired if the party failed to act because of
excusable neglect.
Note: Exceptions for no time extended for 50(b), 50(d), 52(b), 59(b), 59(d), 59(e),
60(b)
o Has D waived service under 4(d),
If yes D gets 60 days from date Plaintiff mailed her waiver form in -
12(a)(1)(A)(ii)
If no 21 days
o Did D respond in the time period?
If no If D does not respond in the time period, may lose by default for failing
to respond
o Note: United States has 60 days to respond 12(a)(3)

12(b) Motions to Dismiss lists seven permitted motions to dismiss these may be
raised by preliminary motion or by answer
o In deciding when to raise these, the practical question is Is D prepared to file an answer?
o Nonfavored motion must be brought at the earliest opportunity! If not, it is waived.

o 12(b) Motions:
12(b)(1): lack of subject matter jurisdiction FAVORED
Adv. Comm. Notes: lack of SMJ cannot be cured by consent or waiver of
the parties, and may even be raised by the court on its own initiative,
because it goes to the core authority of the court to hear the case.
12(b)(2): lack of personal jurisdiction
12(b)(3): lack of venue
12(b)(4): insufficient process
12(b)(5): insufficient service of process
of process: addresses the failure to conform the summons with the
requirements of Rule 4(a) and 4(b) summons and copy of the complaint
Of service of process: challenges a failure to properly serve the opponent
12(b)(6): failure to state a claim on which relief can be granted FAVORED
Note: can also use a 12(f) to strike the claim if more than one claim
alleged and one fails to state a claim on which relief can be granted
can be raised any time before trial

29
 12(b)(7): failure to join a party under Rule 19 indispensible parties
FAVORED
can be raised any time before trial

If a court denies these motions or grants a motion for a more definite statement, defendant
has 14 days to serve the responsive pleading after notice of courts action 12(a)(4)(A-B)

12(c) Motion for Judgment on the Pleadings - a party may move for judgment on the
pleadings after the pleadings are closed

12(e) Motion for a More Definite Statement

Is the statement is so vague or ambiguous that a defendant cannot reasonable be required to
formulate a response? - Bower
Mandates that the motion include a description of defects complained of and the details
required
Motion must be made before interposing a responsive pleading
Courts have tried to prevent motion for a more definite statement from being used as a
substitute for discovery
12(a)(4)(B) After court orders a motion for a more definite statement, a responsive
pleading must be served 14 days after the motion for a more definite statement is served.

12(f) Motion to Strike asks the court to delete from a pleading any insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.
12(f) also imposes time limits although the court may act on its own initiative at any time to
strike matters described in the rule
If a plaintiff lists several potential causes of action, and one of them fails to state a claim
upon which relief can be granted, the D can use 12(f) on the ground that the particular
count is immaterial or, more typically, can use a 12(b)(6) motion to seek the dismissal of
that count

12(g) & 12(h) there are several ways that by omission you lose the right to bring the 12(b) defenses
or motions
Did the D bring some, but omit others 12(g)
o If you file a 12(b) motion prior to your answer, include any plausible, less-favored
defenses in your motion at the same time; and if you answer, without having first
brought all 12(b) motions, include plausible, less-favored defenses in your answers
12(h) says an objection of failure to state a legal defense to a claim may also be made in any
pleading permitted or ordered under Rule 7(a), or by a motion for judgment on the pleadings, or
at the trial on the merits
12(i) says 12(b) defenses must be heard and decided before trial unless the court orders a
deferral until trial

HYPO: PD; D makes motion for 12(b)(5) ( as he should within 21 days of service of process or 21
days from the date the waiver was mailed), but court denies. Then, D files an answer (14 days after he
hears about the motion decision) and raises a 12(b)(2) and 12(b)(3)
Issue: non-favored defenses must be made at the earliest opportunity or they are waived.

30
REPLY
If a party is served with an order to reply (rare), must serve reply within 21 days after being
served with an order to reply, unless the order specifies a different time. (12(a)(1)(C))

ANSWERS (D)
An answer is a pleading and can be in response to a complaint, cross-claim, counterclaim.

Timeline:
Was preliminary motion served within 21 days of being served with process? 12(a)(1)(A)(i)
o Do you need an extension?
6(b) if you need an extension: Court may do with or without motion if the court
acts, or if a request is made, before the original time for extension expires or on a
motion made after the time has expired if the party failed to act because of
excusable neglect.
Note: Exceptions for no time extended for 50(b), 50(d), 52(b), 59(b), 59(d), 59(e),
60(b)
o Has D waived service under 4(d),
If yes D gets 60 days from date Plaintiff mailed her waiver form in -
12(a)(1)(A)(ii)
If no 21 days
o Did D respond in the time period?
If no If D does not respond in the time period, may lose by default for failing
to respond
o Note: United States has 60 days to respond 12(a)(3)

Content of the Answer: Rule 8(b) requires the admission or denial of each averment, except when a
party lacks knowledge or information sufficient to form a belief about the truth of the allegation.

Does the defendant admit allegations?

o Counsel should be very careful not to admit anything that they dispute
o Admissions in pleadings are more binding than evidence given at trial
It is very difficult to get D to admit to a legal conclusion such as duty or N
Sometimes, defense counsels state that P has alleged a legal conclusion that
does not require admission or denial
If a P desires to use the pleadings as a mechanism for reducing the legal
battlefield, she is better off pleading very specific facts so that opposing counsel
has more difficulty stating an unconditional denial

Does defendant deny allegations?

o Defendants may admit or deny specific allegations, whole paragraphs of the complaint or
even the entire complaint Rule 11 sanctions apply
o 8(b)(2): Denials must fairly respond to the substance of the allegation
o 8(b)(3): A party in good faith may deny all allegations of a pleading by a general denial

31
 Does defendant say they lack sufficient knowledge to form a belief about the truth
of an allegation?
o A party that lacks knowledge or information sufficient to form a belief about the truth of
an allegation must so state, and the statement has the effect of a denial
o You cannot use this if this is a matter of public knowledge or it is in the defendants
control
HYPO: guy has the information in his desk drawer but does not feel like looking
for it
o Using lacks knowledge or information when you actually do may make you subject
to Rule 11 sanctions

Does the defendant fail to respond to some allegations?

o When a responsive pleading is required, allegations not denied are deemed admitted
8(b)(6)
o HYPO: P alleges D was intoxicated while driving. D files his answer as says P has no
proof! With this, D has admitted because he has not denied the allegation.

Does the defendant raise Affirmative Defenses?

o 12(b) defenses can be in preliminary motion or here in the answer
o *Usually, but not always, defendants have the burden of pleading, production, and
persuasion as to all elements of the affirmative defense, just as Ps usually have the same
burdens as to the elements of their causes of action
o Affirmative defense injects a new fact into the case and if the defendant is correct on this
fact, he/she will win
Ex. It doesnt matter if I breached the contract because it was not compliant with
SOF and you cannot enforce it.
o Affirmative defenses are in 8(c) list is not exhaustive
Accord and satisfaction
Arbitration and award
Assumption of risk
Contributory negligence
Duress
Estoppel
Failure of consideration
Fraud
Illegality
Injury by fellow servant
Laches (took too long; common law concept)
License
Payment
Release
Res judicata
SOL
SOF
Waiver
If party mistakenly designates a defense as a counterclaim or a counterclaim as a defense, the
court must, f justices requires, treat the pleading as though it were correctly designated 8(c)(2)

32
Other things that can go into an answer:
Counterclaims, cross-claims, impleading a third party

NOTE: RULE 11 APPLIES.

General Rules of Pleadings for Answers Rule 8

Rule Category Content
8(b) Defenses; In general. In responding to a pleading, a party must:
Admissions and A. state in short and plain terms its defenses to each claim asserted
Denials against it; and
B. admit or deny the allegations asserted against it by an opposing
party
8(b)(2) Denials A denial must fairly respond to the substance of the allegation.
8(b)(3) General and A party that intends in good faith to deny all the allegations of a
Specific Denials pleading including jurisdictional grounds may do so in a general
denial.
8(c) Affirmative In responding to a pleading, a party must affirmatively state any
Defenses avoidance or affirmative defense, including: accord and satisfaction,
arbitration and award, assumption of risk, contributory negligence,
duress, estoppel, failure of consideration, fraud, illegality, injury by
fellow servant, laches, license, payment, release, res judicata, SOF,
SOL, waiver.
8(d) Pleading to be Allows P to assert as many claims as he wants regardless of their
concise and direct; consistency. This allows P to plead alternate theories, but rule DOES
alternative NOT ALLOW P to plead inconsistent facts.
statements;
inconsistency
8(e) Construing Pleadings must be construed as to do justice.
Pleadings.
Pleadings must be
construed so as to
do justice

Form of Pleadings Rule 10

Rule Category Content
10(a) Caption; Name of Every pleading must have a caption with the courts name, a title, a file
the Parties number, and a Rule 7(a) designation. The title of the complaint must
name all the parties; the title of the other pleadings, after naming the
first party on each side, may refer generally to other parties.
9(b) Paragraphs; A party must state its claims or defenses in numbered paragraphs, each
Separate Statements limited as far as practicable to a single set of circumstances. A later
pleading may refer by number to a paragraph in an earlier pleading. If
doing so would promote clarify, each claim founded on a separate
transaction or occurrence and each defense other than denial, must be
stated in a separate count or defense.
9(c) Adoption by A statement in a pleading may be adopted by reference elsewhere in the
Reference; Exhibits same pleading or in any other pleading or motion. A copy of a written
instrument that is an exhibit to a pleading is a party of the pleading for
33
 all purposes.

Defenses and Objections Rule 12

Rule Category Content
12(a) Time to Serve a Unless another time is specified by this rule or a federal statute, the
Responsive time for serving a responsive pleading is as follows:
Pleading
A) A D must serve an answer within 21 days of being served with
summons and complaint, OR if it has waived service under 4(d), 60
days after request for waiver was sent (and 90 days if was sent to D
outside the US)

B) A party must serve an answer to a counterclaim or cross claim

within 21 days after being served with the pleading that states the
counterclaim or cross claim

C) A party must serve a reply to an answer within 21 days after being

served with an order to reply, unless the order specifies a different time.
12(a)(2) US Serving US and Agencies or officers in an official capacity 60
days
Serving officers or employees in an individual capacity 60
days
12(a)(4) Effect of a Motion Unless the court sets a different time, serving a motion under this rule
alters these periods as follows:
A) if the court denies the motion or postpones its disposition until
trial, the responsive pleading must be served within 14 days
after notice of the courts action; or
B) if the court grants a motion for a more definite statement, the
responsive pleading must be served within 14 days after the
more definite statement is served
12(b) How to Present Every defense to a claim for relief in any pleading must be asserted in
Defenses the responsive pleading if one is required. But a party may assert the
following defenses by motion:
12(b)(1) F always ok to Lack of SMJ
bring
12(b)(2) Lack of PJ
12(b)(3) Improper Venue
12(b)(4) Insufficient Process
12(b)(5) Insufficient Service of Process
12(b)(6) F must be Failure to state a claim upon which relief can be granted
brought before trial
12(b)(7) F must be Failure to join a party under rule 19
brought before trial
12(c) Motion for After the pleadings are closed, but early enough not to delay trial, a
Judgment on the party may move for judgment on the pleadings
pleadings
12(e) Motion for a More A party may move for a more definite statement of a pleading to which

34
 Definite Statement a responsive pleading is allowed but which is so vague or ambiguous
that the party cannot reasonably prepare a response. The motion must
be made before filing a responsible pleading and must point out the
defects complained of and the details desired. If the court orders a more
definite statement and the order is not obeyed within 14 days after
notice of the order or within the time the court sets, the court may strike
the pleading or issue any appropriate order.
12(f) Motion to Strike The court may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter. The court
may act:
1. On its own
2. On a motion made by a party either before responding to the
pleading or, if a response is not allowed, within 21 days after
being served with the pleading
12(g) Joining Motions (1) Right to Join. A motion under this rule may be joined with any
other motion allowed by this rule
(2) Limitation on Further Motions. Except as provided in Rule
12(h)(2) or (3), a party that makes a motion under this rule must
not make another motion under this rule raising a defense or
objection that was available to the party but omitted from its
earlier motion.
12(h) Waiving and (1) When some are Waived. A party waives any defense listed in
Preserving Certain Rule 12(b)(2)-(5) by:
Defenses a. Omitting it from a motion in the circumstances
described in Rule 12(g)(2); or
b. By failing to either: (i) make it by a motion under this
rule or (ii) include it in a responsive pleading or in an
amendment allowed by Rule 15(a)(1)- where you can
amend within 21 days as a right - as a matter of course
(2) When to raise others. Failure to state a claim upon which relief
can be granted (12b6), to join a person required by Rule 19(b),
or to state a legal defense to a claim may be raised:
a. In any pleading allowed or ordered under Rule 7(a)
b. By a motion under 12(c); or
c. At trial
(3) Lack of SMJ. If the court determines at any time that it
lacks SMJ, the court must dismiss the action.
12(i) Hearing Before If a party so moves, any defense listed in Rule 12(b)(1)-(7)-whether
Trial made in a pleading or by motion and a motion under Rule 12(c) must
be heard and decided before trial unless the court orders a deferral until
trial.

35
IV. Amendments (P or D) Rule 15
Unless altered by a pretrial conference, the pleadings also set boundaries for the trial, confining the
parties to the alleged claims and defenses and instructing the judge and the lawyers as to what facts have
been admitted. Sometimes, new facts are found in discovery that need to be added or change the scope
of the litigation.
Since the trial judge may tell the parties they cannot introduce evidence of causes of action and
defenses absent from their pleadings (or outside the limits of a pretrial order under Rule 16 or a
similar rule), lawyers frequently want to amend their pleadings.
Local Rules sometimes impose additional rules

Amending as a Right
Does P amend before the D serves her answer?
o P has a right to amend once before the defendant serves her answer (15a1A)
o HYPO: P files the case and has D served with process. Then, the D makes a motion to
dismiss. While that motion is pending, P amends the complaint. Does P have a right to do
this? Yes, P is allowed to amend once before the answer is served.
Does D amend within 20 days after serving her answer?
o D has a right to amend once within 20 days after serving her answer (15a1B)
o HYPO: comes up when adding an affirmative defense
Does P or D ask courts permission to amend?
o Either party may ask for courts permission, or leave of the court, to amend (15a2)
o Court will not let you amend if you have waited too long or it would prejudice the other
party

Variance
Does evidence put on at trial does not match what is pleaded?
ONLY comes up at trial
One of two things must happen:
o Does one side object to the variance?
If the party objects to this evidence on the basis of variance, the evidence is
inadmissible
15b1 Party trying to amend can seek leave from the court to amend the
standard is very liberal. All party must show is that amendment at this stage will
aid in presenting the merits of the case
o OR, does the other side not object?
15b2 - the rule allows that evidence to come into trial and we treat it as if it was
pleaded all along. Later on, we can amend the pleading to conform to the
evidence
In general, it is better to object when you think your opponent is introducing evidence beyond
the pleadings.
15b1 last sentence permits the court to grant a continuance to the objecting party so she can
prepare to meet the new issue w/o prejudice, but this option is particularly unappealing to judges
in the middle of a jury trial or when the party introducing the new issue has had ample
opportunity to raise the question by seeking formal amendment.
36
Amending after the SOL has run
Does a party want to add a new claim after the DOL has run?
o Is there relation back?
Does the new claim arises from the same conduct, transaction, or occurrence as
the original claim?
If yes If we get relation back, we treat the amended pleading as
though it was filed when the original was filed
HYPO: P filed the original case on 7/1 and SOL ran out on 7/10. A short
time after that, lets say in August, P wants to amend to find a new claim.
Court will only allow if that new claim relates back to the original claim

Does a party want to add a new party after the SOL has run? Singletary, Costa Cruise
o Requires relation back, must show 3 things:
Does the amendment concern the same conduct, transaction, or occurrence as the
original pleading?
Did the new party within 120 days after the filing of the original case knew about
the case?
Did the new party knew or should have known that the original suit should have
been against him but for mistake?
o NOTE: Only one fact pattern meets this test: P has sued the wrong D first and wants to
amend to add the correct D after the SOL has run. The right D must have known about
the case within 120 days of filing.
HYPO: P goes shopping at Sams and she is injured by a falling ceiling tile. She
files suit and has process served within 120 days, naming Sams as the defendant.
Turns out, Sams Inc. does not exist and she should have sued Sams Ltd. She
served process in the original pleading to the President of Sam Co. who is
authorized to receive service of process. P discovers this problem after the SOL
has run and P seeks leave to amend. This relates back to the original pleading, the
new party knew within 120 days of filing b/c he incorrectly received service, and
new party knew or should have known that the original suit should have been
against him but for mistake.

Statute of Limitations: most states/ federal courts have statutes requiring that certain causes of action
be brought within certain number of years from when the cause of action is accured. (Torts usually 3
years; Contracts usually 2 years)
Sometimes potential parties will agree to stop the running of a SOL
o Tolling agreements when a D may not want a complaint to be filed and may be
willing to agree to forestall the running of the period of time under the SOL pending
settlement negotiations
o Reasons for the SOL include:
Giving potential parties a sense of repose or peace after time has expired (one
should not have to worry about a lifetime about potential wrong doings their
entire life);
Permitting accused parties to amass evidence while it is still fresh
Helping courts to avoid depleting their scarce resources on stale cases in which it
will be difficult, if not impossible, to find out what happened.
37
15(d) Supplemental Pleadings: Was there an event that happened since the date of the original
pleading that is relevant to the case, but could not have been pleaded specifically at the time b/c it had
not yet occurred?
A 1963 amendment to this makes it clear that the trial court is empowered to grant a
supplemental pleading even if the new material cures a defect in the original complaint
If a new claim is involved and the SOL has run, the pleader who seeks supplemental pleading
will have to rely on the provisions in 15(c) dealing with relation back of amendments

Amendment Cases
Case Issue Takeaway
Amending to add a new party after the SOL
Singletary v. Whether the P Ps son committed suicide while in jail. P brings a 1983 lawsuit against
PN Dept. of can amend the the Dept. of Corrections alleging cruel and unusual punishment. P did
Corrections complaint not know the identities of the guards who were responsible, she named
under FRCP unknown corrections officers as defendants. Later, she tried to add a
15(c) to new party psychologist (also applies to joinder to suit after the SOL has
substitute passed).
Regan as a New party can receive notice as per Rule 15c1Cii through
party instead informal means, notice must be more than notice of the event
of unknown that gave rise to the claim
corrections P cannot show notice through Shared Attn. principle if the attn..
officers? does not become the new partys attn.. until after the 120 day
notice period has passed new party must have shared an
attorney with the original defendants during the 120 day notice
period
If a P evokes the identity of interest argument the new party
must show a nexus of business interests with the original
defendeants, a low level employee may not have the same
business interests with the original Ds, a low level employee
may not have the same business interest with an originally
named employer named in the suit
o Here, the new party was a staff psychologist who was
low in the dept. hierarchy and thus would not have
known what was going on at the top leves of the
department
Listing an unknown D as a John Doe defendant is not a mistake,
and thus, most courts refuse to allow a party to be added where
original D was not known

Under Rule 15(c), P can relate an amended claim back to the original if
the amended claim arose from the same conduct and the newly added
party was sufficiently notified within 120 days after the initial
complaint was filed.
^Note: DP concerns of notice and opportunity to be heard.
Krupsi v. Was Rule P injured on a cruse and sued American operating company listed on
Costa 15(c) applied the cruise ticket. P later found out that the proper D was Costa Corciere
Crociere correctly? and amended the complaint to include the Italian defendant but the
SPA court denied it.
38
 Lower courts incorrectly focused on Krupskis knowledge.
The question under rule 15c1Cii is NOT whether Krupski
knew or should have known the identity of Costa Crociere
as the proper defendant but whether Costa Crociere knew or
should have known that it would have been named as
defendant but for an error.
That a P knows of partys existence does NOT preclude her
from making a mistake.
o Similarly, deliberately choosing to sue one party
over another doesnt necessarily mean you cannot
make a mistake in doing so.
Important Note: deliberately choosing to sue one party over
for tactical reasons, however, that under Rule 15(a), a court
CAN consider a movants undue delay.

39
IV. JOINDER
Permissive Joinder of Parties Rule 20(a)(P)
To determine whether plaintiffs can be joined, a court must decide whether they assert any right to
relief jointly, severally, or in the alternative with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences, and any question of law or fact common to all
plaintiffs will arise in the action. Both the same T/O and common question elements must be satisfied
before joinder can be permitted.

Things 20(a) does well Things that 20(a) does not do well
P is the master of the claim May raise jurisidictional and tactical issues
Consistent legal judgments this is why it is not required

Rule 20(a): Is the P trying to join other Ps?

o Do the claims arise out of the same T/O?
Transactions is a word of flexible meaning, and may comprehend a series of
many occurrences, depending not so much on the immediateness of their
connection as upon their logical relationship - Lopez
o Is there at least one common question?
There must be precise congruence of all factual and legal issues; indeed, joinder
may be permissible if there is but one question of law or fact common to the
parties. Lopez
o Is there still SMJ?
HYPO: Three people, Harry, Ron, and Hermione, get into a cab to Diagon Alley and are injured.
They could sue the taxi cab driver separately. May they join as co-plaintiffs? Yes, under 20(a1),
they may join as co-plaintiffs because the issues arise under the same T/O (the wreck) and
involve at least one common question (Negligence).

Rule 20(a2): Are Ds trying to join Ds?

o Do the claims arise out of the same T/O?
Transactions is a word of flexible meaning, and may comprehend a series of
many occurrences, depending not so much on the immediateness of their
connection as upon their logical relationship - Lopez
o Is there at least one common question?
There must be precise congruence of all factual and legal issues; indeed, joinder
may be permissible if there is but one question of law or fact common to the
parties. Lopez
o Is there still SMJ?
o Note: This is not for bringing in new Ds; that is covered by Rule 14777
HYPO: I go to visit ATL. My friend and I go to the Braves game and were in a car accident. Can
we join as co-defendants? Yes, but we dont have to. There is a common T/O and common
question of law or fact.

In either 20a (1) or (2), neither need be interested in obtaining or defending against all relief
demanded. Court may grant judgment to one or more plaintiffs according to their rights, and
against one or more defendants, according to their liabilities (20a3)
40
Misjoinder of Parties Rule 21:
Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at
any time, on just terms, add or drop a party. The court may also sever any claim against a party.
Misjoinder is not a ground for dismissing an action. (21)

Should a misjoinder motion be granted?

Do the P/Ds share the transaction or occurrence?
Is there at least one common question?
Once the court has resolved these threshold questions, it may then consider additional factors
in determining whether to grant a motion to sever. This includes: (from Lopez)
a. Whether the issues sought to be tried separately are significantly different from one
another
b. Whether the separable issues require testimony of different witness and different
documentary proof
c. Whether the party opposing the severance will be prejudiced if it is granted; and
d. Whether the party requesting the severance will be prejudiced if it is not granted

Consolidation; Separation of Trials Rule 42:

Allows a judge to separate claims (for issues, claims, crossclaims, counterclaims, or third party claims)
for a trial for reasons of convenience, avoiding prejudice, and economy. When ordering a separate trial,
the court must preserve any federal right to a jury trial.
Should the claims be severed according to Rule 42?

Permissive Joinder of Parties Cases

Case Issue Takeaway
Joining Parties Rule 20
Lopez v. Defendants Group of plaintiffs filed suit against the city police after officer failed
City of filed a motion to properly supervise the dog which mauled them.
Irvington to sever the Should the parties have been joined under Rule 20?
(xxx) trial of the o Common T/O even though these are spaced out over
plaintiffs time. Transactions is a word of flexible meaning and
pursuant to may comprehend a series of many occurrences,
Rule 21. depending not so much upon the immediateness of their
connection as upon their logical relationship.
o Common Q does not require precise congruence of
factual and legal issues
Once the court has resolved these threshold questions, it may
then consider additional factors in determining whether to grant
a motion to sever. This includes:
o Whether the issues sought to be tried separately are
significantly different from one another
o Whether the separable issues require testimony of
different witness and different documentary proof
o Whether the party opposing the severance will be
prejudiced if it is granted; and
o Whether the party requesting the severance will be
prejudiced if it is not granted
41
 Rule 20(a) allow claims to be joined that have the same
transactions and common question elements.

Permissive Joinder of Parties Rule 20

Rule Category Content
20(a) Persons Who May (1) Plaintiffs. Persons may be joined in one action as plaingiffs if:
Join or Be Joined a. They assert any right to relief jointly, severally, or in the
alternative with respect to or arising out of the same T, O,
or series of T/O; and
b. Any question of law or fact common to all plaintiffs will
arise in the action.
(2) Defendants. Personsas well as vessel, cargo, or other property
subject to admiralty process in remmay be joined in one action
as defendants if:
a. Any right to relief is asserted against them jointly,
severally, or in the alternative with respect to or arising
out of the same T, O, or series of T/O.
b. Any question of law or fact common to all defendants
will arise in the action
(3) Extent of Relief. Neither a plaintiff nor a defendant need be
interested in obtaining or defending against all the relief
demanded. The court may grant judgment to one or more
plaintiffs according to their rights, and against one or more
defendants according to their liabilities.
20(b) Protective The court may issue ordersincluding an order for separate trialsto
Measures protect a party against embarrassment, delay, expense, or other prejudice
that arises from including a person against whom the party asserts no
claim and who asserts no claim against the party.

Misjoinder and Nonjoinder of Parties Rule 21

Rule Category Content
21 Misjoinder of Misjoinder of parties is not a ground for dismissing an action. On
Parties motion or on its own, the court may at any time, on just terms, add or
drop a party. The court may also sever any claim against a party.

Consolidation; Separate Trials Rule 42

Rule Category Content
42(a) Consolidation If actions before the court involve a common question of law or fact, the
court may
(1) join for hearing or trial any or all matters at issue in the actions
(2) consolidate the actions; or
(3) issue any other orders to avoid unnecessary cost or delay.
42(b) Separate Trials For convenience, to avoid prejudice, or to expedite and economize, the
court may order a separate trial of one or more separate issues, claims
(20), cross claims (13), counterclaims (13), or third party claims (14).
When ordering a separate trial, the court must preserve any federal right
to a jury trial.

42
CounterclaimsRule 13(a)(D)
Under Rule 13(a), a counterclaim is a claim asserted against an opposing party, usually by a
defendant against a plaintiff. Counterclaims can be either compulsory or permissive.
May seek any kind of relief the court is competent to give
Relief may or may not be related to the plaintiffs claim
Counterclaim may ask for relief that merely neutralizes or cancels out plaintiffs claim or it may
seek relief that exceeds the plaintiffs desired relief

Was the counterclaim brought in accordance with the requirements of a pleading? Rule 7 & 8

Is the counterclaim compulsory under 13a?

Does the claim arises out of the same T/O that is the subject matter of the opposing partys
claim?
o Four Part Test for Determining if a claim arises under the same T/O in 13a:
Are the issues of fact and law raised by the claim and counterclaim the same?
Would res judicata bar the defendants claim outside of the compulsory
counterclaim rule?
Will the same evidence that supports / refutes the Ps claim also be used by the
defendant in supporting or refuting their counterclaim?
Is there a logical relationship between the claim and counterclaim?
Does the counterclaim not require adding another party over whom the court cannot acquire
jurisdiction?
Does a 13a2 EXCEPTION apply?
When action was commenced, was the claim subject of another pending action? OR
Is the opposing party suing on its claim by attachment or other process that does not establish
PJ over the pleader on that claim and the pleader does not assert any counterclaim under this
rule?
Does the court have SMJ to hear the claim?
o If yes good !
o If no try supplemental jurisdiction.
***If the counterclaim is compulsory and not brought, it is waived. Why? It forces parties who are
already adversaries to litigate all claims arising from the same set of facts in a single action.***

Is the counterclaim permissive?

Is this a compulsory counterclaim? If no Permissive
Is there SMJ?
Should the court order a separate trial of the permissive counterclaim? (42)

HYPO: Three way car crash. Every claim is >$75k and parties are diverse. P (AZ) D1(NY) and
D2(NY). D2 has a claim against D1 for something from the car accident. Should D2 file a counterclaim
against P?
Yes. In fact, D2s claim is compulsory, meaning if he doesnt file it, he will lose it. It is a
compulsory counterclaim because the claim arising from the same T/O as the original claim and
does not require adding another party over whom the court cannot get jurisdiction. Is there SMJ?
Yes, because parties are still diverse.

43
 Should D2 file a cross claim against D1? They could because they are co-parties and the claim
arises out of the same T/O. But there is no SMJ!
o Supplemental Jurisdiction? 1367a grants supplemental jurisdiction if there is a common
nucleus of operative fact. Does 1367b kill supplemental jurisdiction? No, it only kills
claims by the P. here, this is a claim by the D.

D1(NY)

P(AZ)

D2(NY)

Counterclaim Cases
Case Issue Takeaway
Compulsory Counterclaim Rule 13a
Podhorn v. Whether a Podhorn was a tenant in Ds apartment building. D brought an action
Paragon compulsory to recover the rent due. P did not file a counterclaim. Instead, Ps later
Group, Inc. counterclaim filed a claim that arose out of the same transaction in federal court. D
must be filed, moved to dismiss because Ps claim was a compulsory counterclaim in
even if the the state law suit and thus should have been filed with the state action.
court does not Although Paragon Group filed its rent claim and did not have
have the jurisdiction over the Podhorn counterclaims, it does not
jurisdiction to alleviate the responsibilities to file those as counterclaims
hear the new Compulsory Counterclaim
claim? Thinking that the court does not have jurisdiction is NOT AN
EXCUSE to fail to assert a counterclaim if it is
COMPULSORY. You have to do it and the court will take it to
the appropriate place.
All claims arising out of the same T/O as the pending suit must be filed
regardless of jurisdictional issues; otherwise, you lose your right to
bring such claims

Counterclaim Rule 13(a)

Rule Category Content
13(a) Compulsory (1) In general. A pleading must state as a counterclaim any claim
Counterclaim that at the time of its servicethe pleader has against an
opposing party if the claim:
a. Arises out of the same T/O that is the subject matter of
the opposing partys claim; and
b. Does not require adding another party over whom the
court cannot acquire jurisdiction
13(a)(2) Compulsory (2) Exceptions. The pleader need not state the claim if:
Counterclaim a. When the action was commenced, the claim was the
Exceptions subject of another pending action; or
b. The opposing party sued on its claim by attachment or
other process that did not establish personal jurisdiction
over the pleader on that claim, and the pleader does not

44
 assert any counterclaim under this rule.
13(b) Permissive A pleading may state as a counterclaim against an opposing party any
Counterclaim claim that is not compulsory.
13(c) Relief sought in a A counterclaim need not diminish or defeat the recoveyr sought by the
Counterclaim opposing party. It may request relief that exceeds in amount or differs
in kind from the relief sought by the opposing party.
13(d) Counterclaim These claims do not expand the right to assert a counterclaim or to
against the United claim a credit the United States or a United States officer or agency.
States
13(e) Counterclaim The court may permit a party to file a supplemental pleading asserting a
Maturing or counterclaim that matured or was acquired by the party after serving the
Acquired after earlier pleading.
Pleading

Consolidation; Separate Trials Rule 42

Rule Category Content
42(a) Consolidation If actions before the court involve a common question of law or fact, the
court may
(3) join for hearing or trial any or all matters at issue in the actions
(4) consolidate the actions; or
(5) issue any other orders to avoid unnecessary cost or delay.
42(b) Separate Trials For convenience, to avoid prejudice, or to expedite and economize, the
court may order a separate trial of one or more separate issues, claims
(20), cross claims (13), counterclaims (13), or third party claims (14).
When ordering a separate trial, the court must preserve any federal right
to a jury trial.

Cross claimsRule 13(g)(D)

Under Rule 13(g), a party may assert a claim against another co-party (on the same side of the v).
Party B
Party A
Rule 13(g) Cross Claim

Rule 20(a)(2):
A joined B & C as Defendants Party C

Crossclaim against a Coparty Rule 13(g)

Rule Category Content
13(g) Crossclaim A pleading may state as a crossclaim any claim by one party against a
coparty if the claim arises out of the T/O that is the subject matter of the
original action or of a counterclaim, or if the claim relates to any

45
 property that is the subject matter of the original action. The crossclaim
may include a claim that the coparty is or may be liable to the
crossclaimant for all or part of a claim asserted in the action against the
crossclaimant.

Consolidation; Separate Trials Rule 42

Rule Category Content
42(a) Consolidation If actions before the court involve a common question of law or fact, the
court may
(1) join for hearing or trial any or all matters at issue in the actions
(2) consolidate the actions; or
(3) issue any other orders to avoid unnecessary cost or delay.
42(b) Separate Trials For convenience, to avoid prejudice, or to expedite and economize, the
court may order a separate trial of one or more separate issues, claims
(20), cross claims (13), counterclaims (13), or third party claims (14).
When ordering a separate trial, the court must preserve any federal right
to a jury trial.

Joinder of ClaimsRule 18(P or D)

Under Rule 18, a party asserting a claim, counterclaim, crossclaim, or third-party claim, may join, as
an independent or alternative claims, as many claims as it has against an opposing party.
Has the party asserted a claim, cross claim, or counterclaim?
o If yes then under 18(a), the party can add on totally unrelated claims
Is there SMJ?
o If yesGood!
o If no try supplemental J. If still no, court does not have the authority to hear the case

Impleader (Third Party Practice)Rule 14(D)

Under Rule 14, a defendant can bring a third-party into the action. The court may allow a defendant
to implead a person not already a party to the action who is purportedly liable to the defendant for all or
part of the defendants liability to the plaintiff.
This comes up: (1) Indemnity or (2) Contribution to Ds liability
Examples of Common Impleaders: Joint TFs
This is not a cross-claim because 3pD was not previously a defendant

Timing and Service

Does D (3pP) serve summons and complaint on the non party within 14 days of serving its
original answer? (14a1)
o Must be served under Rule 4
If not, does D (3pP) ask the courts leave by motion to file a third-party complaint (14a1)

To implead a party Gross v. Hanover Insurance

Is the party already a party to the action? Must not be.
Will the party be liable to him if and only if P prevails?

46
 o If D can recover from a 3p regardless of if he is found liable to P, then this is an
independent claim, and NOT AN IMPLEADER
Does D have a theory of liability for how the third party will be liable in full or in part to D
should the court rule against D? (is or may be liable for all or part of plaintiffs claim)
Does the court have SMJ over the impleaded party?

Does the impleaded party

Does the impleaded party assert any defense against the third-party plaintiff under Rule 12?
(14a2A)
Does the impleaded party assert any counterclaim against the third party plaintiff under Rule
13(a)?
o Note: the counterclaim is against the original defendant
Does the impleaded party assert any crossclaim against another third party defendant under Rule
13(g)

If the plaintiff asserts a claim against the 3pD

Does it arise out of the T/O that is the subject matter of the plaintiffs claim against the third-
party plaintiff?
Does the 3pD have a defense under Rule 12, counterclaim under Rule 13(a), counterclaim under
Rule 13(b) or any crossclaim under Rule 13(g)?

Does any party motion to strike, sever, or try separately under Rule 42?

HYPO: D is one of two joing TFs. D1, if loses, does not want to pay part of D2s share. He may serve
summons and complaint on a non-party if within 13 days of serving its original answer OR ask for the
courts leave if this is done later.

Impleader Cases
Case Issue Takeaway
Impleader Rule 14
Gross v. Whether the P consigned his jewels to a retail jewelry store. Jewels were stolen and
Hanover court should P sued the retail stores insurer D. D made a motion to implead Rizzo
Insurance, grant Ds bros because they were responsible for the robbery if D was found
Co. motion to liable the Rizzos should be liable to D.
implead the The purpose of the rule is to promote judicial efficiency by
Rizzo eliminating the necessity for the D to bring a separate action
brothers under against a third party who may be partially or totally liable for
Rule 14(a). the judgment
Courts have discretion in whether to grant a motion to implead a
third party
A D may implead a party even though the third party
defendants liability is not established once the original D is
found liable.
Under 14(a), D can implead a party who is or may be liable to the D for
the damages sought by the P. At this point, D does not have to meet the
burden to firmly establish liability.

Third Party Practice Rule 14

47
Rule Category Content
14(a)(1) When a Defending (1) Timing of the Summons and Complaint. A defending party may, as
Party May Bring in third-party plaintiff, serve a summons and complaint on a nonparty who
a Third Party is or may be liable to it for all or party of the claim against it. But
Timing the third-party plaintiff must, by motion, obtain the courts leave if it
files the third-party complaint more than 14 days after serving its
original answer.
14(a)(2) When a Defending 2) Third-Party Defendants Claims and Defenses. The person served
Party May bring in with the summons and third-party complaint the third party
a Third Party defendant:
Third Party a. must assert any defense against the third-party plaintiffs
Defendant claim under Rule 12
b. must assert any counterclaim against the third party plaintiff
under Rule 13(a)
c. may assert against the plaintiff any defense that the third-
party plaintiff has to the plaintiffs claim; and
d. may also assert against the plaintiff any claim arising out of
the transaction or occurrence that is the subject matter of the
plaintiffs claim against the third-party plaintiff.
14(a)(3) Plaintiffs Claims The plaintiff may assert against the third-party defendant any claim
Against a Third- arising out of the T/O that is the subject matter of the plaintiffs
Party Defendant claim against the third-party plaintiff. The third-party defendant must
then assert any defense under Rule 12 and any counterclaim under
Rule 13(a), and may assert any counterclaim under Rule 13(b) or
any crossclaim under Rule 13(g).
14(a)(4) Motion to Strike, Any party may move to strike the third-party claim, to sever it, or to try
Sever, or Try it separately.
Separately
14(a)(5) Third-Party A third-party defendant may proceed under this rule against a non-[arty
Defendants Claim who is or may be liable to the third-party defendant for all or part of
Against a any claim against it.
Nonparty.
14(a)(6) Third party
Complaint in rem.

Consolidation; Separate Trials Rule 42

Rule Category Content
42(a) Consolidation If actions before the court involve a common question of law or fact, the
court may
(1) join for hearing or trial any or all matters at issue in the actions
(2) consolidate the actions; or
(3) issue any other orders to avoid unnecessary cost or delay.
42(b) Separate Trials For convenience, to avoid prejudice, or to expedite and economize, the
court may order a separate trial of one or more separate issues, claims
(20), cross claims (13), counterclaims (13), or third party claims (14).
When ordering a separate trial, the court must preserve any federal right
to a jury trial.

48
Necessary and Indispensable Parties--Rule 19(D)
Under Rule 19(a), an absentee must be joined in the lawsuit. Under Rule 19(b), a court
determines if a party can be joined in the lawsuit. If the party cannot be joined in the lawsuit, the court
must choose to:
dismiss the case (if the party is indispensible under Rule 19b)
proceed without the necessary party

Rules of Thumb for Necessary and Indispensible Parties: Temple v. Synthes

Joint TFs are not necessary parties and thus not indispensible
Co-obligors to a K may be necessary but are generally not indispensible
Actions to set aside a contract require the joinder of all parties to a contract

Is the party necessary under 19(a)?

Can the court accord complete relief among existing parties without that person? ((19a1A)
Would the persons absence impair or impeded that persons ability to protect their interest
which is a subject of the action? (19a1Bi)
Would the persons absence leave an existing party subject to a substantial risk of incurring
double, multiple, or inconsistent obligations because of the interest? (19a1Bii)
***JOINT TF are NOT NECESSARY PARTIES***

Can that party NOT be joined?

Would joining that person make venue improper? 19a3
Would joining that person deprive the court of subject matter jurisdiction?

If cannot be joined, is the party indispensible under 19(b)?

Will a judgment rendered in that persons absence prejudice that person or existing parties? 19b1
Can prejudice be lessened or avoided by (A) protective provisions in the judgment, (B) shaping
the relief, or (C) other measures? 19b2
Would the judgment rendered in the perons absence be adequate? 19b3
Would the plaintiff have an adequate remedy if the action were dismissed for nonjoinder? 19b4

Did the plaintiff plead the reasons for nonjoinder? 19c

Did they state the name, if known, of any person who is required to be joined if feasible but is
not joined? And
The reasons for not joining that person? 19c

Necessary and Indispensible Party Cases

Case Issue Takeaway
Necessary and Indispensible Parties
Temple v. Whether a Temple had surgery to put a Synthes product in his back, but the
Synthes court should product later broke while in Ps back. P sued D in a products liability
Corp., Ltd. dismiss an action in federal court and the doctors in state court. D filed a 12(b)(7)
(1990) action for motion to dismiss for failure to join necessary parties (the doctors who
49
 failing to join had implanted the product). Because the doctors were joint tortfeasors
all potential with joint and several liability, they were not necessarily necessary
tortfeasors parties under 19(a).
relating to the 19(a) does not require all potential tortfeasors to be joined in the
action in a same lawsuit
single suit? Rules of Thumb for Necessary and Indispensible Parties:
Joint TFs are not necessary parties and thus not indispensible
Co-obligors to a K may be necessary but are generally not
indispensible
Actions to set aside a contract require the joinder of all parties
to a contract
Daynard v. Should South P entered into a K with D (two law firmsone MS and one SC) to
Ness, Carolina be provide advice on their tobacco litigation in exchange for 5% of
Motley, able to damages award. D won and did not pay P. Miss Ds got out of the suit
Lockhardt, dismiss the via a successful 12(b)(2) motion (PJ). SC Ds brought a 12(b)(7) motion
Richardson, suit since to dismiss for failure to add necessary parties (MS Ds)
& Poole, Mississippi MS was necessary because: (1) could not accord complete relief
P.A. (2001) won their among existing parties without that person, (2) the persons
motion to absence would impair the MS ability to protect their interest
dismiss (keeping the 5%), and (3) the persons absence would leave the
because of existing SC Ds for multiple obligations (the whole 5%)
lack of PJ? Is Then, the court illustrates the indispensible party factors:
MS a How prejudicial is their absence on the other parties?
necessary and How much can the prejudice be avoided?
indispensible Whether a judgment in their absence would suffice?
party? Whether the plaintiff would be able to obtain relief if the case
was dismissed?
Co-obligors of a K are necessary but not indispensible
Co-obligees of a K are generally necessary and indispensible
Court held that D is not held to inconsistent obligations if they are held
liable in the current suit,a dn later their co-D is not found liable to P
this is inconsistent adjudications, not inconsistent obligations.

Rule 19 provides that indispensible parties in 19(b) are a subset of

necessary parties defined in 19(a).

Required Joinder of Parties Rule 19

Rule Category Content
19(a) Persons Required to (1) Required Party. A party who is subject to service of process and
be Joined if whose joinder will not deprive the court of SMJ must be joined
Feasible as a party if:
(necessary) a. In that persons absence, the court cannot accord
complete relief among existing parties; or
b. That person claims an interest to the subject of the action
and is so situated that disposing of the action in the
persons absence may:
i. As a practical matter impair or impeded the
persons ability to protect the interest; or
ii. Leave an existing party subject to a substantial
50
 risk of incurring double, multiple, or otherwise
inconsistent obligations because of the interest.
19(a2) Joinder by Court (2) If a person has not be joined as required, the court must order
Order that the person be made a party. A person who refuses to join as
a plaintiff may be made either a defendant or, in a proper case,
an involuntary plaintiff.
19(a3) Venue (3) If a party objects to venue and the joinder would make venue
improper, the court must dismiss that party.
19(b) When Joinder is If a person who is required to be joined if feasible cannot be joined, the
Not Feasible court must determine whether in equity and good conscience the action
(indispensible) should proceed among the existing parties or should be dismissed. The
factors for the court to consider include:
(1) the extent to which a judgment rendered in the persons absence
might prejudice that person or the existing parties;
(2) the extent to which any prejudice could be lessened or avoided
by:
a. protective provisions in the judgment
b. shaping the relief
c. other measures
(3) Whether a judgment rendered in the persons absence would be
adequate; and
(4) Whether the plaintiff would have an adequate remedy if the
action were dismissed for nonjoinder.
19(c) Pleading the When asserting a claim for relief, a party must state:
Reasons for (1) the name, if known, of any person who is required to be joined if
Nonjoinder feasible but is not joined; and
(2) the reasons for not joining that person.

12(b)(7)
Rule Category Content
12(b)(7) How to Present Ever defense to a claim for relief in a pleading must be asserted in the
Defenses responsive pleading if one is required. But a party may assert the
following defenses by motion:
(7) Failure to join a party under Rule 19

Intervention Rule 24 (outside party)

Under Rule 24, a nonparty may join an ongoing litigation either as a matter of right or in the
discretion of the court.

Is the intervention timely? (This is up to the courts discretion)

Did the intervening party serve a motion to intervene on the parties as provided in Rule 5? 24c
Does the motion state the grounds for intervention?
Is it accompanied by a pleading that sets out the claim or defense for which intervention is
sought?

51
1. Is the party intervening as a right? 24a2
Is the nonparty given the unconditional right to intervene based on a statute?
Will the nonpartys interests be harmed if not joined?
o Aka. Does the nonparty have an interest relating to the property or transaction that is the
subject of the action and is so situated that disposing of the action may as a practical
matter impair or impeded the movants ability to protect its interest, unless existing
parties adequately represent that interest?
o Notice: Symmetry to 19a1b1, but they empower different people. In 19, by D. Here, by
nonparty.
Does the court have SMJ?

2. Is the party intervening by discretion of the court? 24b

Does the nonpartys claim or defense share with the main action a common question of law or
fact? 24b1B
Will the intervention unduly delay or prejudice the adjudication of the original parties rights?
24b3
Does the court have SMJ?

Intervention Case
Case Issue Takeaway
Intervention
US v. Whether Environmental interest group wants to join as a plaintiff. The court held
Northern Council is that the motion to intervene was timely (they filed within four months
Indiana qualified to after the first mention of a settlement), but the Council lacked a
Public intervene? significant legal interest in the property. Therefore, they cannot
Services Co., intervene through intervention as a right (24a). They also cannot
et al (1983) intervene under 24b because it would cause undue delay or prejudice.

IN order to intervene under 24a2, party must demonstrate that hteir

application was timely and that they have a significantly protectable
interest relating to the property at issue.

Intervention Rule 24
Rule Category Content
24(a) Intervention of On timely motion, the court must permit anyone to intervene who:
Right (1) is given an unconditional right to intervene by a federal statute; or
(2) claims an interest relating to the property or transaction that is the
subject of the action, and is so situated that disposing of the action may
as a practical matter impair or impede the movants ability to protect its
interest, unless existing parties adequately represent that interest.
24(b) Permissive (1) In General. On a timely motion, the court may permit anyone to
Intervention intervene who:
a. is given a conditional right to intervene by federal statute; or
has a claim or defense that shares with the main action a
common question of law or fact
(2) by a government officer or agency. On timely motion, the court may
permit a federal or state govnermental officer or agency to intervene if a
52
 partys claim or defense is based on:
a. a statute or executive order administered by the officer or
agency; or
b. any regulation, order, requirement, or agreement issued or
made under the statute or executive order.
(3) Delay or Prejudice. In exercising its discretion, the court must
consider whether the intervention will unduly delay or prejudice the
adjudication for the original parties rights.
24(c) Notice and A motion to intervene must be served on the parties as provided in Rule
Pleading Required 5. The motion must state the grounds for intervention and be
accompanied by a pleading that sets out the claim or defense for
which intervention is sought.

53
V. DISCOVERY
26(g) Certification: Every document is signed to certify that they are complete and not for an
improper purpose
26(d)(1): Discovery cannot begin until the parties have conferred 26(f) conference
26(d)(2)(a): Can use discovery methods in any sequence
Discovery is a two-way street Shaw
Historically, discovery started with 26(b); there were no automatic disclosures

Automatic Disclosures 26(a)

Did parties make mandatory initial disclosures under 26(a)?
o Did they do this 14 days after 26(f) conference or 30 days after being joined if you
were joined after the 26(f) conference? 26a1C-D
o Did they disclose without request? (Court should not have to request it)
o Did you disclose the name, address, and phone number of each individual likely to have
discoverable information (26a1i)
o Did you provide a copy of all documents, ESI, and tangible things that the disclosing
party has that they may use to support its claims or defenses at trial? 26a1Aii
o Did parties provide a computation of each category of damages?26a1Aiii
o Did parties provide any insurance agreements? 26a1Aiv
o EXCEPTIONS TO INITIAL DISCLOSURES (26a1B)
An action for review on an admin record
Forfeiture action in rem arising from a federal statute
A petition for habeas corpus or any other proceeding to challenge a criminal
conviction or sentence
An action brought without an attorney by a person in the custody of the US, a
state, or a state subdivide
An action to enforce or quash an admin summons or subpoena
An action by the US to recover benefit payments
An action by the US to collect on a student loan guaranteed by the US
A proceeding ancillary to a proceeding in another court
An action to enforce an arbitration award
o Does a party make an excuse that it has not fully investigated its case? This is not a valid
excuse.

Do parties disclose mandatory information about expert testimony?

o Do the parties provide written reports for witnesses which are signed if the witness was
retained or specially employed to provide expert testimony in a case
Complete statement of opinions, the facts or data considered by the witness in
forming them, any exhibits that will be used, a list of all other cases the witness
has testified at in the last 4 years, a statement of compensation for testimony
o Do the parties disclose expert information 90+ days before trial 26a2D
o Do parties disclose expert testimony 30+ days before trial for evidence intended to
contradict evidence? (Rebuttal Test)

54
Supplementing Initial Disclosures and Responses Rule 26(e)
Did the parties supplement their initial disclosures when they learn that the disclosure is now
incomplete or incorrect?
Did they do this in a timely manner?
Did the parties supplement with information given during experts testimony?

Scope of Discovery 26(b)(1)

Is the matter privileged? (if no, continue)
Is the matter relevant to any partys claim or defense?
o This means it probably has to be something they pleaded
o 12(b) motions are probably relevant like PJ information
o Discovery is not limited to information that would be admissible at trial
Does the information appear reasonably calculated to lead to discovery of admissible
evidence?
Does a discovery limitation apply?
o Work Product Rule
o Is this ESI that is not reasonably accessible because of undue burden or cost?
Is the ESI unduly burdensome on its face? Does the request require the
responding party to engage in mental gymnastics?
Does responding party meet the burden of proving the request was unduly
burdensome?
o Did the responding party file a protective order? 26c
to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense
Should fees be shifted (as in Butterball)?
7 Factor Cost-Shifting Analysis used only when electronic discovery imposes undue burden / expenses
when the information is inaccessible
1. extent to which the request is specifically tailored to discovery relevant information
2. availability of information from other sources
3. total costs of production compared to the amount in controversy
4. total costs of production compared to resources available to each party
5. relative ability of each party to control costs and its incentive to do so
6. importance of issues at stake
7. relative benefits to the parties of obtaining the information

Will a court limit discovery because the discovery is

o Unreasonably cumulative or duplicative can be obtained from some other source that
is more convenient, less burdensome, or less expensive?
o Party seeking has had ample opportunity to obtain the information by discovery in the
action
o The burden or expense of the proposed discovery outweighs its likely benefits

Scope of Discovery Case

55
Case Issue Takeaway
Unduly Burdensome
Moss v. (1) When Moss sued BCBS under the Family Medical Leave Act alleging
BCBS of KS, discovery is interference with her FMLA rights. BCBS objected to several
Inc. (2007) relevant, does interrogatories and requests for production of documents.
party resisting When discovery appears to be relevant, the party resisting
discovery discovery has the burden of establishing the lack of relevance
have the The party resisting discovery on the grounds that it is overly
burden of broad and unduly burdensome has the burden of demonstrating
establishing that the time or expense involved in responding to the requested
the lack of discovery is unduly burdensome, unless the discovery request is
relevance? unduly burdensome on its face.
(2) does the If answering a relevant, but unduly burdensome request on its
party resisting face, the responding party would have to engage in mental
discovery on gymnastics to determine what information may or may not be
grounds that it remotely responsible overly broad
is overly Here, some requests were not reasonably calculated to lead to
broad and discoverable information. Of those that were, BCBS had the burden
unduly burd. and failed to support the claim that these are unduly burdensome on
Have burden their face. A few other interrogatories were unduly burdensome on their
of demo. That face and BCBS is not responsible for burden.
time or
expense
involved in
responding is
unreasonable?

Work Product Rule

Is this covered under the work product rule?
o Was this prepared in anticipation of litigation?
o Was it prepared by one of the parties listed in 26b3A: attorney, consultant, surety,
indemnitor, insurer, or agent?
o EXCEPTIONS:
Substantial need
Information not otherwise easily available
o Work Product that is absolutely protected:
Mental impressions, conclusions, and legal theories 26b3
Even if this is discoverable, you can redact these things

Why do we limit discovery of work products?

Avoid a freeloader problem

HYPO: George runs a charter boat service and you hire me for a three hour tour. Weather starts getting
rough and boat sinks. You are injured and Georges lawyer hires a PI to interview witnesses. Is this
report discoverable? No, but this may be overridden by an exception.

56
Work Product Rule
Case Issue Takeaway
Work Product
Hickman v. Whether, Five crew members drowned when a tug sank. In anticipation of the
Taylor without a litigation, tug owners attorney interviewed servivors. Hickman tries to
(1947) showing of discover copies of the statements attorney obtained from the survivors.
prejudice by No, work product is not discoverable.
the moving Limitations came into existence on discovery when the inquiry
party, encroaches on the recognized domains of privilege. There is a
statements are necessity for a lawyer to investigate all facets of the case and
made to be develop theories without strategies or information that is
discoverable, unfavorable to his client.
if they were
taken in Rule 26(b) While the protective cloak of attn.-client privilege does not
anticipation of extend to information that attn. secures from a witness while acting for
litigation and his client in anticipation of litigation, an attempt, without necessity or
contained justification, to secure written statements private memo and
among them personal recollections prepared or formed by an adverse partys
the personal counsel fall outside the arena of discovery.
recollections
and thoughts * partys attorney, consultant, surety, indemnitor, insurer, agent
of opposing
counsel?

Discovery Tools
Remember: Local Rules may further limit
Rule
27 Dpositions to Even if there is no action filed, you can petition district court to grant
perpetuate permission to get someones testimony because you are afraid they will
testimony not be available later
28 Persons before Depos have to be taken before an officer that is appointed by law or by
whom depos can the court. Officer cannot be a party, relative, employee, or someone who
be take has a financial interest in the litigation
29 Stipulations about Can stipulate pretty much anything; if you stipulate about the time to
discovery complete discovery, it has to have the courts approval if it concflicts
with the timetable
30 Oral Depositions Can depose parties and nonparties (nonparties must be served
with a subpoena)
Notice has to be given to every party (Rule 5)
Max limit 1 day, 7 hours
Max depos = 10 without a court order
If witness (party or nonparty) fails to show up, they may have to
pay expenses and fees
Usually in a lawyers office
Under oath
Objections are allowed but testimony is taken subject to any
objection unless objection is based on privilege; to enforce a
57
 limitation ordered by the court; to present a 30(d)(3) motion to
terminate or limit on the grounds that it is being conducted in bad
faith or in a manner that unreasonably annoys, embarrasses,
oppresses deponent or party
Objections: (1) Form of question, (2) Question is unintelligible,
(3) privileged (you must instruct your client not to answer these)
On request, the deponent or a party before the deposition is
completed, the deponent must be allowed 30 days after being
notified by the officer that the transcript or recording is available
and they may review and sign a statement listing changes and the
reasons for making them
31 Written Depos Only really used to get testimony from witnesses that are far away (or in
prison)
If the questions are directed at an organization, they can be done in
writing

Difference between these and interrogatories:

To parties or non partywhen dpositions can be taken
Used when exhausted interrogatories
Must be served on other party
32 Using depositions Dpos cant be used in lieu of live testimony at trial, but there are
at trial exceptions if:
1. It was made by an adverse party or officer, director, agent of an
adverse coporate party
2. it was used to impeach the deponents credibility if he is testifying at
trial
3. deponent is unavailable

* you may use a depo from an earlier trail involving the same subject
matter between the same parties
33 Interrogatories Party may serve on any other party no more than 25 written
interrogatories
Only to parties
33b agency concepts for organizations
must be signed by client (not the lawyer)
each must be answered
must serve answers and any objections within 30 days after being
served with interrogatories
Max of 25 questions including discrete subparts
If answering them will require examining a lot of records and
burden of examining them would be substantially the same for
either party, responding party can just specify the records that it
has to be reviewed to answer the interrogatory and give the
movant reasonable opportunity to examine them
34 Producing Only for parties
documents, If you want docs from non-parties, must serve a subpoena under
tangible evidence, Rule 45 (also in 34c)
entering onto land
for inspection
58
35 Physical and Only for parties and only by court order
mental May only be for good cause and issue in controversy
examinations Only for a party or someone in control of that party
35a2B: must specify time, date, manner, condition, scope
employee / employer will not work
report must be requested
36 Requests for If you do not respond within 30 days, it is admitted. IWithdrawl of
admission admission is allowed if it would promote presentation on the merits and it
would not prejudice the other party.
If party does not respond, there may be Rule 37 sanctions
Only parties
45 Subpoena The noticing party must provide for the attendance of the witness usually
by serving a subpoena
--- Informal Nonparty interviews, exchange of information, site visits, requires for
Discovery information from government agencies, review of all publicly available
Techniques records, private investigator, internet research

Discovery Conference 26(f)

Did parties start discovery before the 26(f) conference?
o Under 26(d)(1), parties may not seek any discovery from any source before the parties
have conferred by Rule 26(f), except in a proceeding exempted from initial disclosures or
when authorized by the rule

Was the conference as soon as practicable?

Did the parties turn in a scheduling order under 16(b) 21+ days before a scheduling conference
is to be held?
o 16(b): After any conference under this rule, the court should issue an order reciting the
action taken. This order controls the course of action unless the court modifies it
o If no If party fails to participate in good faith in developing and submitting the
discovery plan, the court may require that party to pay the other partys attorneys fees
caused by the failure 37(f)

Did the parties make arrangements for the initial disclosures, discuss issues about preserving
discoverable information, and develop a proposed discovery plan?

Did the parties attempt a good faith to agree on the proposed discovery plan and submit it to
the court within 14 days after the conference?
o Does the discovery plan make a proposal on:
What changes should be made in the timing, form, or requirement for disclosures
under 26(a)?
The subjects on which discovery may be needed?
Any issues about the discovery of electronically stored information?
Any issues about privilege or of protection as trial-preparation material?
What changes should be made in the limitation on discovery imposed by these
rules or local rules?

59
If the court ordered an expedited schedule to require the conference to occur less than 21 days before the
scheduling conference is held or a scheduling order is due

Electronic Discovery
Is the electronic evidence unduly burdensome?

Was the ESI lost or destroyed?

Was there a bad faith effort that spoiled ESI?
o 3 elements shown to warrant an adverse inference instruction to jury Teague v. Target
Did the party having control over evidence have an obligation to preserve it when
it was destroyed?
Was the destruction or loss accompanied by a culpable state of mind?
Was evidence that was destroyed relevant to the claims or defenses of the party
seeking it?
Did company place a litigation hold on the evidence?

Is obtaining the ESI unreasonably burdensome or duplicative?

Has the party against whom discovery is sought established that the burden or expense of the
proposed discovery outweighs its likely benefit?

ESI Cases
Case Issue Takeaway
Work Product
Teague v. May court Target employee was fired from her job and filed an action that she was
Target issue jury terminated on the basis of her gender. She discarded computer
(2007) instructions containing files that showed her job search efforts. Target filed a
that permit the motion to dismiss her claim.
*spoliation jury to draw Parties have an affirmative duty to preserve material evidence
of evidence an adverse Sanction of dismissal for spoliation is generally not authorized
interference absent bad faith
from a partys Instead, court may issue an adverse inference when:
destruction of o Party having control over evidence had an obligation to
evidence? preserve it when it was destroyed
o Destruction or loss was accompanied by a culpable state
of mind
o Evidence that was destroyed was relevant to the claims
or defenses of the party that sought it
Court issued adverse inference jury instruction.
Helmert v. Is discovery Helmert and friend sued under the Fair Labor Standards Act claiming
Butterball, of relevant, that Butterball refused to conduct a meaningful search of its
LLC (2010) nonprivileged electronically stored information. They filed a motion to compel under
ESI limited if Rule 37(a). Butterball argued that, while the plaintiffs were entitled to
the party from more documents, the scope of the plaintiffs request was too broad.
*difficult to whom Butterball also argued that costs should be shifted to the plaintiffs
access ESI discovery is
sought Generally, 26(b) permits parties to obtain discovery regarding

60
 establishes any nonpriviledged matter that is relevant to any partys claim
that it is or defense. Discovery should be allowed unless it is clear that
unreasonably the information sought can have no possible bearing on the
cumulative or claim or defense of a party.
duplicative or Discovery of relevant, nonprivileged ESI is limited if it can
that the be established that it is unreasonable or duplicative or that
burden or the burden or expense of the proposed discovery outweighs
expense of the is likely benefit.
proposed
discovery
outweighs the
likely benefit?

Enforcing Discovery 37
Court may issue orders to play by the rules OR issue sanctions
Court does not like to get involved in discovery squabbles

Does the requesting party request subjects that are unduly burdensome or expensive?
Court may issue a protective order under 26c
HYPO: Trade secrets between businesses; Pepsi requests formula for Coke

Does the responding party respond incompletely?

Some questions are answered, but not others (incomplete interrogatories, for example)
Party seeking the information may file a 37(a) Motion to Compel
Does the court grant a motion to compel and the party violates it?
o If yes Rule 37b2, which include: directing matters to be taken as established for the
purposes of action, prohibiting the disobedient party from supporting or opposing certain
claims or defenses, striking the pleadings (whole or in part), staying procedings,
dismissing the action, rendering a default judgment, treating it as contempt of court

Does the responding party fail completely? 37d1a

If yes party seeking does not have to make a motion to compel (unlike partial failure)
If yes disobedient party may be subject to BIG Sanctions: anything listed in the partial failure
sanctions + court must require party failing to act to pay the reasonable expenses caused by the
failure unless the failure was substantially justified or the circumstances make award of expenses
unjust - 37d3

Did the party fail to provide electronically stored information? 37e

Was the loss a result of routine, good-faith operations?
o If yes no sanctions

61
VI. Jury and Adjudication
Pretrial Adjudication
Plaintiff selects forum based on PJ, SMJ, Venue
Under 41(a), P can voluntarily dismiss the action
Under 55, if D doesnt show up, D has defaulted

Motion to Dismiss for
Failure to State a Claim
12b6
Before trial; before
discovery
Does not look at evidence,
only the face of the
complaint
Twiqbal TEST:
1. ignores conclusions of
law and looks only at
allegations of fact
2. facts alleged must
support a plausible claim
(not just possible)
3. to determine plausibility,
judge will use common
sense and experience
Motion for Summary Judgment Motion for Judgment as a
56 Matter of Law 50(a)
Before trial During trial
Looks only at the complaint did On the basis of testimony and
P state enough facts to back up a documents offered at trial
valid claim; looks at evidence
proffered by parties in written
form:
Affidavit
Declaration
Deposition
Answers to interrogatories
All under oath**
Court may also consider
admissions ***
TEST: Is there a genuine issue of
material fact?
Always discretionary

Summary Judgment Rule 56

Has D / P make motion at the appropriate time?
o Until 30 days after the close of all discovery
o Local rules may further restrict
Is there no genuine issue of material fact and is the moving party entitled to judgment as a matter
of law?
o Material fact: an essential element of claim or defense
o Genuine dispute: one which a reasonable jury could resolve against the movant
Did the moving party meet its burden?
62
 o There is an absence of evidence to support an essential element of the plaintiffs case on
which plaintiff will bear the burden of proof at trial
If D meets its burden of showing an absence of evidence on an essential element of the plaintiffs
case, did P respond by making a sufficient showing with respect to that element?

HYPO: P walks across the street and is hit by a car driven by D. P alleges he was in the crosswalk and
had a green walk sign. D files an answer where denies and files MSJ. D submits affidavits from 3
clergymen who all saw that D had a greenlight.
If P puts no evidence in and relies on the face of his complaint, does he win? NO. Pleadings
are not evidence!
If P puts in an affidavit for a witness who is not a well-respected member of the community.
Witness says P had a green light. Does P win? No, court cannot weigh factual evidence and this
is a question for a jury.

MSJ Cases
Case Issue Takeaway
Rule 56
Adickes v. In an action Adickes was not served at a diner when she was with her black
S.H. Kress based on students. She alleged conspiracy between the police and Kress store.
& Co. (1970) conspiracy, Summary judgment was granted when Adickes could not produce
may summary evidence of the conspiracy. Uses 1983 to give latches to sue an
judgment be individual who acts under color of state law.
granted if a D Adickes would have to prove the presence of police earlier in
has not shown the day and the burden was on Kress to prove that they were not
that no Rule 64 is not intended to modify the burden to initially show
evidence an absence of genuine issue of material fact
thereof exists? Requires that D does more than rely on contrary allegations
View in the light favorable to the nonmoving party
First, moving party must meet burden; then, burden shifts and
nonmoving party has to prove there are no facts in dispute
Celotex Must SJ be Catretts husband died and she sues asbestos mfgs. For exposure to
Corp. v. entered their products. Celotex, one of the mfg., moved for SJ.
Catrett against a party SJ must be entered against a party who fails to make a showing
(1986) who fails to sufficient to establish the existence of an element essential to
meet his his case and on which he has the burden of proof
burden of P had the burden of proof of showing D had some culpability
proof on any She did not meet the burden and SJ was appropriate
essential
element of a Dissent: MSJ was improper because the party moving must establish
cause of the nonexistence of a genuine issue. This has two components: an
action? initial burden of production, which shifts to the nonmoving party if
satisfied by the moving party; and an ultimate burden of persuasion.
Here, because Celotex did not meet the initial burden, MSJ was
improper.
Scott v. Does SJ Car chase in Atlanta.
Harris standard Moving partys burden to show there is no genuine issue of
(2007) require the material fact
court to put Court found that a record of all evidence could not lead a
more weight rational trier of fact to find for the non moving party
63
 in testimony Video showed no issue of material fact no unreasonable force
than video was used by the police officer
evidence? If there is a video, a court may grant SJ based on video if it
shows genuine issues of material fact
Dissent: the video tape was not as definitive. Jury should make the
determination.

MSJ Rules Rule 56

Rule
56(a) Motion for A party may move for summary judgment, identifying each claim or
Summary defenseor the part of each claim or defenseon which summary
Judgment or judgment is sought. The court shall grant summary judgment if the
Partial Summary movant shows that there is no genuine dispute as to any material fact and
Judgment the movant is entitled to judgment as a matter of law. The court should
state on the record the reasons for granting or denying the motion.
56(b) Time to file a Unless a different time is set by local rule or the court orders otherwise, a
motion party may file a motion for summary judgment at any time until 30 days
after the close of discovery.
56(c) Procedures (1) Supporting Factual Positions. A party asserting that a fact cannot be
or is genuinely disputed must be support the assertion by:
A. citing to particular parts of materials in the record, including
depos, documents, ESI, affidavits or declarations, stipulations
(including those made for the purposes of the motion only),
admissions, interrogatory answers, or other materials; or
B. showing that the materials cited do not establish the absence or
presence of a genuine dispute or that an adverse party cannot
produce admissible evidence to support the fact.
56(c)(2) Objection that a A party may object that the material cited to support or dispute a fact
fact is not cannot be presented in a form that would be admissible in evidence
supported by
admissible
evidence
56(d) When facts are If a nomovant shows by affidavit or declaration that, for specified
unavailable to the reasons, it cannot present facts essential to justify its opposition, the court
nonmovant may:
(1) defer considering the emotion or deny it, (2) allow time to obtain
affidavits or declarations or to take discovery, or (3) issue any other
appropriate order

Adjudication at Trial
Right to a Jury Trial and Selecting the Jury Rule 47
Bench trial = no jury
Right to a jury trial comes from the 7th Amendment, which preserves the right to a jury in
cases of law
o 7th Amendment does not require a jury trial

64
Is there a right to a jury trial?
Would the parties have a jury trial in 1791?
o Is there an analogous claim? (usually yes)
o Is the remedy sought legal in nature, rather than equitable?
Legal remedy = compensatory damages
Equitable remedy = SP, injunction, recession
Is the case mixed? Court may determine issue by issue; court may find an issue of
fact that underlies both and use jury for all; OR try the jury issue first
Did a party waive their right to a jury?

Was the jury selected according to the proper procedures?

Were juries pooled from a lottery?
Does the court correctly conduct the voir dire process under Rule 47?
o In federal court, does the judge conduct?
o In state court, do the lawyers conduct (judge may ask questions)?
Look at local rules
Did the parties raise a challenge?
o Preemptory Challenges
The challenging party does not have to give a reason
Did the party exceed the limit # on preemptory challenges
o For Cause Challenges
For cause challenges, there is no limit. These are to remove an obvious bias
Is there a race based motive behind For Cause Challenges? Use Batson Test
o No challenge: I am content
Should there be an investigation for examination?
o Under 47(a) judges discretion whether conduct examination or let the parties and the
attorneys investigate
Batson Test: Swain v. Alabama
Party opposing strike must show circumstances surrounding a particular strike which permit an
inference that the party challenge was race-based
Burden shifts to the proponent of the challenge to show a race-neutral reason for the strike
Incumbent on opposing strike to prove to the court that the strike was not motivated by
purposeful discrimination

o Did the parties bring this up in the appropriate way?

In complaint
Answer
OR parties can bring up challenges within 14 days after the last issue they want
the jury to try

Did both parties waive their right to a jury trial?

Did parties waive their right no more than 10 days after last pleading directed to the issue
served? 38b

Pro Jury Anti Jury

Legitimizes the judicial process Efficiency
Curbing arbitrary judicial behavior Amateurs that do not understand law
Inculcating community values Influenced by passion and prejudice
65
 Collective recall to remember the details of runaway jury problems
the trial problems with handling punitive damages
Socializing function juries do rough justice

Jury Case
Case Issue Takeaway
Rule 47 & 48
Chauffeurs, Whether an Terry and union members brought an action that the union did not
Teamsters & employee represent them fairly in a grievance claim seeking backpay. Plaintiffs
Helpers, who seeks requested a jury and the Union moved to strike the jury demand.
Local No. relief in the A plaintiff in an action against a union for breach of
391 v. Terry form of back representation is entitled to a jury.
(1990) pay for a Is the issue legal or equitable? Here, legal because it is similar
unions to a breach of fiduciary duty. There is also a contract, equitable
alleged breach component. However, damages sought are wholly legal
of its duty of (money) and so this is mostly a legal claim.
fair Therefore, a jury is appropriate.
representation
has a right to
trial by a
jury?

Jury Rules
Rule
7th [T]he right to a jury trial shall be preserved.
amendment
38(b) Any party can demand a jury trial within 10 days of the last pleading
served on the issue (must be served according to 5d)
38(d) A demand can only be withdrawn if all parties consent
29 A court can try anything where there is no federal right to a jury trial
47(a) Examining Jurors The court may permit the parties or their attorneys to examine
prospective jurors or may itself do so. If the court examines the
jurors, it must permit the parties or their attorneys to make any
further inquiry it considers proper, or must itself ask any of the
additional questions it considers proper.
47(b) Preemptory The court must allow the number of peremptory challenges provided
Challenges by 28 U.S.C. 1870 (THREE)
28 U.S.C. Challenges In civil cases, each party shall be entitled to three peremptory
1870 challenges. Several Ds or several Ps may be considered as a single
party for the purposes of making challenges, or the court may allow
additional peremptory challenges and permit them to be exercised
separately or jointly. All challenges for cause or favor, whether to the
array or panel or to individual jurors, shall be determined by the court
47(c) Excusing a Juror During trial or deliberation, the court may excuse a juror for good
cause

66
48(a) Number of Jurors A jury must being with at least 6 but no more than 12 members, and
each juror must participate in the verdict unless excused under 47(c).
48(b) Verdict Unless the parties stipulate otherwise, the verdict must be unanimous
and must be returned by a jury of at least 6 members.
48(c) Polling After a verdict is returned by before the jury is discharged, the court
must on a partys request, or may on its own, poll the jurors
individually. If the poll reveals a lack of unanimity or lack of assent
by the number of jurors that parties stipulated to, the court may direct
the jury to deliberate further or may order a new trial.

Motions at Trial- 41(a), 41(b), 50(a), 50(b), 59, 49, 61

Voluntary Dismissal
Can P file a voluntary dismissal without prejudice? 41(a)
Is this before D has filed an answer or motion for summary judgment, OR
Do all parties agree?
Can court grant?
o Yes, but if the case has proceeded very far they may do it with prejudice or require P to
pay costs

Does P files a previously dismissed action against the same D?

If yes court may order P to pay Ds costs for the previous action 41d

Involuntary Dismissal
Can the court dismiss?
Is there a failure to prosecute a claim?
Is there failure to comply with a court order
Note: Involuntary dismissal is with prejudice
o Exceptions: lack of PJ, lack of SMJ, improper venue, failure to join a necessary party

Judgment as a Matter of Law / Directed Verdict Rule 50(a)

Can the court grant judgment as a matter of law?
Has the party been fully heard on an issue during a jury trial?
o Can be made after plaintiff presents, or if denied, after D puts on evidence
o P or D can move for JMOL
Would a reasonable jury have no legally sufficient evidentiary basis to find for the party on that
issue?
o If yes court may resolve the issue or grant a JMOL
JMOL is always discretionary***
Judge can only grant JMOL if plaintiff failed to meet her burden of production.

Renewed Judgment as a Matter of Law Rule 50(b)

Can the court grant renewed judgment as a matter of law?
Did the court not grant a motion for JMOL?
Could a reasonable juror NOT have come to this conclusion?
o HYPO: P needs to prove elements: a,b,c,d, and only proves a, c,d RJMOL may be
appropriate
67
 Was the motion filed no later than 28 days after the entry of judgment?
OR if the motion addresses a jury issue not decided by a verdict no later than 28 days after the
jury was discharged?
o If yes court may allow judgment on the verdict, order a new trial, or direct RMOL

New Trial Rule 59

Does the losing party make a motion for a new trial?
Did judge do this on his / her own initiative? (allowable)
Was the verdict against the weight of evidence, was there a judicial error, prejudicial conduct by
party, witness or counsel, juror misconduct, excessive or inadequate verdict, or newly discovered
evidence?
This most often comes up when there was an error in the trial process (everyone is entitled to due
process of law deficiency in the opportunity to be heard); and judge has the power to grant a new trial
if the process was fair but the judgement was clearly wrong (against the weight of evidence)

Entry of Verdict - 49
Did the jury return with a verdict?
o Did the jury file the verdict slip or answer question by the judge?

New Trial may not be granted for harmless error Rule 61

Was there harmless error? No new trial may be granted for this reason

Adjudication at Trial Cases

Case Issue Takeaway

Galloway v. Whether Galloway sued to prove that he was eligible for insurance benefits due
US (1943) directed to his permanent disability that began before the date his insurance
verdict denied policy lapsed. The court said this does not need to go to a jury.
petitioner of Just because the 7th A. allows the right to a jury trial, does not
the right to a mean everything goes to a jury
jury trial? US is sued here and is allowed because Congress has waived
immunity or statute allowed the litigation
P has burden to prove elements of a complaint. If element has to
be proven and P cantdoes the case go to a jury? Court says
no. (Does Rule 50 allow case to be taken away from the jury?)
Under Rule 50, courts have the power to direct a verdict for
insufficiency of evidence. Also, Rule 50 prevents evidence from going
to jury, but does not violate the Constitutional guarantee of trial by
jury
Brandon v. Whether A series of errors by the Clerk and by Brandons attorney resulted in
Chicago Plaintiff is default judgment against Brandon (failure to prosecute). Brandon
Board of entitled to moved for relief from judgment under Rule 60(b)(6).
Education Rule 60(b) 60(b)(1) applies to errors by both the district court clerk and the
(1998) relief for the parties attorneys
court clerks 60(b)(1) must be brought within one year of judgment
docketing By failing to bring the motion within one year, Brandon was
error? denied his judgment

68
Dismissal at Trial Rules
Rule
41(a) Voluntary (1) By the Plaintiff.
Dismissal (A) without court order. The plaintiff may dismiss an action without a
court order by filing
(i) notice of dismissal before the opposing party serves either an
answer or a motion for summary judgment
(ii) a stipulation of dismissal signed by all parties who have
appeared.
41(a)(2) Effect of a Without prejudice. But, if the plaintiff previously dismissed any federal
Voluntary or state court action based on or including the same claim, a notice of
Dismissal dismissal operates as an adjudication on the merits (with prejudice)
41(a)(3) By Court Order; Except as mentioned in 41(a)(1), an action may be dismissed at the
Effect plaintiffs request only by court order, on terms that the court considers
proper. If D has pleaded a counterclaim before being served with Ps
motion to dismiss, the action may be dismissed over the Ds objection
only if the counterclaim can remain pending for independent
adjudication. This is without prejudice.
41(b) Involuntary If P fails to prosecute or comply with these rules or a court order, a D
Dismissal may move to dismiss the action or any claim against it. This is an
adjudication on the merits.
41(c) Dismissing a A claimants voluntary dismissal must be made before a responsive
Counterclaim, pleading is served or if there is no responsive pleading, before evidence
Crossclaim, or is introduced at a hearing or trial
Third-Party
Claim
41(d) Costs If a plaintiff who previously dismissed an action in any court files an
action based on or including the same claim against the same defendant,
the court may order the P to pay all or arty of the costs of that previous
action and may stay the proceedings until the plaintiff has complied.
50(a) Judgment as a If a party has been fully heard on an issue during a jury trial and a court
Matter of Law finds that a reasonable jury would not have a legally sufficient
evidentiary basis to find the party on that issue, the court may: resolve
the issue and grant a motion for JMOL
50(a)(2) Motion May be made any time before the case is submitted to the jury. Motion
must specify the judgment sought and the law and facts that entitle the
movant to the judgment.
50(b) Renewing Motion If the court does not grant a JMOL, the court is considered to have
after Trial; submitted the action to eh jury. No later than 28 days after the entry of
Alternative judgment movant can file a RJMOL. In a RJMOL, a court may: allow
Motion for a New judgment on the verdict that the jury returned, order a new trial, or direct
Trial the entry of judgment as a matter of law.
50(c)(1) Granteing Court may condition the ruling on a motion for new trial by determining
RJMOL whether a new trial should be granted if the judgment is later vacated or
conditioned on reversed. Must state the conditional grounds for granting or denying a
New Trial new trial.
50(c)(2) Effect of a Does not affect the judgments finality. If judgment is reversed, new trial
conditional ruling must proceed unless appellate court decides otherwise. If th emotion for a

69
 new trial is conditionally denied, the appellee may assert error in that
denial; if that judgment is reversed the court must proceed as the
appellate court orders
50(d) Time for a losing Any motion for a new trial under Rule 59 by a party against whom
partys new-trial judgment as a matter of law is rendered must be filed no later than 28
motion days after the entry of judgment.
59 New Trial
60 Grounds for relief On motion and just terms, the court may relieve a party or its legal
from a final representative from a final judgment, order, or proceeding for the
judgment, order, following reasons:
or proceeding 1. Mistake, inadvertence, surprise, or excusable neglect
2. Newly discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial under
59(a)
3. Fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
4. The judgment is void
5. The judgment has been satisfied, released, or discharged it is
based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable;
6. Any other reason that justifies relief

70
VII. Appeals and the Final Judgment Rule
Verdicts Rule 48, 49, 58
Was the jury unanimous?
Under Rule 48(b), jury must be unanimous in its verdict and must be returned by at least 6
members.

May parties poll the jury? Yes, under Rule 48(c).

Does the poll reflect a lack of unanimity or lack of assent by the number of jurors that the parties
stipulated to, the court may direct the jury to deliberate further or order a new trial under Rule
59.

Does the judge request special verdict? 49a

If yes Did court ask for special verdict correctly? 49(b)
o did the court submit written questions susceptible of a categorical order or other brief
answer?
o did the court also submit written forms of the special findings that might properly be
made under the pleadings and evidence?
o did court use other method that the court considers appropriate?
If yes did the court give necessary instructions? 40(c)
Are the verdict and answers consistent? Court must approve under Rule 58 (entry of judgment)
for appropriate judgment to be entered
Are the answers inconsistent with the verdict? Court may approve entry of judgment under Rule
58 or direct the jury to further consider its answers and verdict or order a new trial under Rule
59.
Are answers inconsistent with each other and the verdict? Court must direct the jury to
further considerations or must order a new trial. Rule 49(b4)

Was judgment correctly entered? Rule 58

Was it in a separate document?
Was it prepared, signed, and entered b the clerk?
Did the court enter order for a special verdict or general verdict?
If separate doc required, was judgment entered under 79(a) in the civil docket, earlier than the
judgment is set out in a separate doc or 150 days have run from entry in a civil docket.

Appeals 1291, 1292

No Constitutional right to appeal, but a statutory right
Under 28 U.S.C. 1291, Court of Appeals only has jurisdiction over final decision of the district
courts. Partial summary judgment is not enough
Under 28 U.S.C. 1292, interlocutory appeals appeal a rule by a trial court made before the trial
itself has concluded

Is this an appeal from a final judgment allowable under 1291?

Does the court have anything else to do on this?
o If yes not final
o If nofinal

71
Interlocutory Appeal:
Is the appeal allowed under 1292(b) one that requires agree of district court and Court of
Appeals?
Is the appeal controlling question of law? AND
Does the district court find substantial ground for difference of opinion? AND
Would an immediate appeal from the order materially advance the ultimate termination of
litigation? AND
Does the Court of Appeals agree to hear it?

What is the standard of appeal review?

Is this a question of law? Review de novo
Is this a question of fact?
o If decided by a judge, Court of Appeal affirms unless clearly erroneous.
o If decided by a jury, Court of Appeal MUST affirm unless no reasonable jury could have
made that decision
Is this a discretionary judgment? Will affirm unless district court abused its discretion

72
VIII. Personal Jurisdiction
a. Introduction and Overview
In order to try a case, the court must have the adjudicatory power consisting of:
1. Personal jurisdiction over the defendant
2. Subject matter jurisdiction over the case
3. Venue must be appropriate
Adequate notice must be served on defendant.

Personal (also known as territorial) jurisdiction: a reflection of the geographic limitations on the
judicial power of the sovereign states within our federal system.
Both fairness and power play a role in the doctrine of PJ
Subject matter jurisdiction: allocates power between federal and state court systems.
Federal courts have limited subject matter jurisdiction
o Constitutional and statutory provisions restrict their adjudicatory authority to certain
types of cases, mainly disputes between citizens of different states (diversity) and
disputes arising under federal law (federal question cases), such as patent, antitrust, and
civil rights cases
State courts have general subject matter jurisdiction
o They can hear and decide most categories of cases, including those that can be heard in
federal court over which there is a concurrent jurisdiction

A glossary of terms:
In personam jurisdiction: the power of a court to enter a money judgment against the defendant; a
judgment may, if necessary, be satisfied by seizing and liquidating the defendants assetsCourt has
property over the Defendant herself
o In personam judgment is said to follow the D, meaning that it must be given full faith and
credit and be enforced by any state in which the D or his assets are found
In rem jurisdiction: the power of a court to act with regard to property (such as real estate) within its
borders.Court has power over the Defendants property
o Affects the interest of persons in the property (and may indeed extinguish those interests) but,
unlike in personam judgment, does not create an obligation on the Ds part to pay money to the P.
o An action to determine title to property among opposing claimants is an example of in rem jur.
Quasi in rem jurisdiction: a hybrid of the other two forms of adjudicatory power.
o Based on the presence of the Ds property (either real or personal) within the forum state, but it
permits the court to enter a judgment for an amount of money not exceeding the value of the
property, and which may be satisfied from the forced sale of the property.
o Unlike the true in rem action, the claim for relief in a quasi in rem action is unrelated to the
property, which merely provides the basis for jurisdiction.
General Jurisdiction: Defendant can be sued in forum for a crime that arose anywhere in the
world.
o Test 1: Are the defendants contact continuous and systematic?
o Test 2: Is the defendant a citizen of that forum state?
o Test 3: Has the defendant been served with process?
o Test 4: Does the corporation have the principal place of business in that state? Or, is
that where they are incorporated?
Specific Jurisdiction: Defendant can only be sued for a claim that occurred in that forum.
Although each state retains its own sovereignty, a valid judgment entered in state A is entitled
under our Constitution (Article 4, section 1) to full faith and credit in all other states.

73
 o The SC has made clear that the full faith and credit command is exacting, not
discretionary, with respect to a judgment rendered by a court possessing adjudicatory
authority over the subject matter and the persons governed by the judgment

B. Assessing Personal Jurisdiction Can the P sue the D?

First, is there a STATUTORY BASIS for personal jurisdiction?
Every state has a general jurisdiction statute over defendants domiciled in the forum and a
Nonresident Motor Act (like Pawloski)
Constitutional power is not self-executing court must be authorized by appropriate legislation or
otherwise to assert jurisdiction
Long-Arm Statute applies to non-residents. There are two types:
o California type: Reaches to the full extent of due process
o Laundry List: Nonresident defendant can be sued on a claim arising from her doing
certain things. These vary from state to state and the same language can be interpreted
in different ways.
o Example: Gray v. American Std.Illinois court said that the tortious act was the
waterheater exploding in Illinois, so the court had jurisdiction over the company in
Illinois. Other courts may say that the act was manufacturing the water heater
which happened in Ohio.No IL jurisdiction.
Does Ps claim arise from activity of the D that fits within an enumerated category?
If so, would application of the statute nonetheless reach beyond the constitutional constraints
of the minimum contacts test?

Second, is personal jurisdiction CONSTITUTIONAL? Due process requires personal

jurisdiction over the defendant.

Does one of the four traditional basis for in personam jurisdication apply? (from Pennoyer)
1. Defendant is served with process in the forum state presence gives general jurisdiction
2. Defendants agent was served in the forum
3. Defendant is domiciled in the forum stategives general jurisdiction (domicile = residence +intent)
4. Defendant consents to jurisdiction in the state. At any time, defendant can waive protection of jurisdiction
Hess v. Pawlowski
*This is about the raw, physical power over people and things within state boundaries. *
*If one of these applies, then do a minimum contacts analysis. *

Minimum Contacts Analysis --does not offend tradition notions of fair play and substantial justice
o A. Contact: relevant between the defendant and the forum state
Assess if that defendant purposefully availed themself of that state (Denkla) (Calder)
Do they reach out to conduct business in that state?
Assess the foreseeability that defendant could be sued in that forum (World Wide VW)
o B. Fairness: a high degree of fairness can make up for lesser contacts
RelatednessDoes plaintiffs claim arise from defendants contact with the forum state?
InconvenienceIs it inconvenient for defendant and witnesses to represent themselves in
that state (economic disparity is irrelevant)
States interestDoes the state have an interest in providing a forum state? (McGee)
Other: Plaintiffs interest, judicial efficiency, interstate interest in shared substantial policy
o C. Stream of Commerce
Asahi

74

McIntyre

SPLIT: Brennanjurisdiction if they could anticipate it getting to C, D, or E;
OConnorjurisdiction if the intent or purpose was to serve C, D, or E.
o D. Burnham
Was the D served with process in that state? establishes PJ
Mention Brennans dissent: Was the presence voluntary? (airplane)

Factors for PJ Factors Against

Stream of Commerce: Intent
Designing the product for that market
o Perrier water case designed
containers for US to read in ounces,
not metric
o Reanault car case steering wheel
on the left, advertised, distribution
Advertising in that market
Establishing channels for providing repairs
/ advice for customers in that state
Marketing the product through a distributor
who serves as a sales agent in that state
Soliciting Business in the forum state

Case Issue Takeaway

Traditional Bases for PJ
Pennoyer v. Is constructive service Neff had previously hired Mitchell to recover legal fees from
Neff (1877) sufficient notice to acquiring land. Mitchell sued Neff to recover the outstanding
attach property within debt, and default judgment was entered against Neff (he
the forum state owned didnt show up). The court ordered a forced sale of Neffs
by a non-resident? property in OR to satisfy judgment. Penoyer bought the
property and Neff sued to recover his land from Penoyer on
the grounds that the first judgment was not binding against
him b/c the court did not get personal jurisdiction over him.
Mitchell had posted notice in the newspaper, but Neff was not
served personally.

Personal jurisdiction is acquired over a non-resident in two

ways:
Service of process on the person within the state (in
personam)
o Publication of process a newspaper is not
sufficient
Proceeding against the persons instate real property (in
rem)
o Property must be attached first to proceed in rem
o Attachment gives its owner constructive notice
that a suit has been initiated against his property
o A P cannot get a judgment and then attach a
75
 property later to get personal jurisdiction over the
D
Proceedings in a court of law to determine the personal rights
and obligations of parties over whom the court has not
jurisdiction are invalid for want of due process of law.

Note 1: Sin, Scandal, and Substantive Due Process

Harris v. Balk Whether Maryland had Harris (NC) owed Balk (NC) money. Balk owed Epstein
(1905) jurisdiction over the (MD) money. While Harris (NC) was temporarily in MD,
debt between the two Epstein brought suit and issued a writ of attachment. Then,
residents of North Balk brought this action against Harris in NC and Harris says
Carolina. that he paid Epstein. Lower court says no personal j in MD.
Court considered property as moveable so P may
proceed quasi in rem against the property when
property is in the state as long as:
o He attaches the property first (this gives
notice)
o P effectuates personal service (this happened
here and is valid)
Court had personal jurisdiction over Harris because Harris
was served with process in MD (personal service). A valid
judgment by another states court that had jurisdiction over a
party must be given full faith and credit by another states
court.
Hess v. Does a state statute by Hess sued Pawlowski after Pawloski injured Hess in a car
Pawlowski, which nonresident accident in MA. MA had Non-Resident Motorist Act that
(1927) motorists are deemed allows plaintiffs and the courts to gain jurisdiction. When a
to have appointed a nonresident drives on MA roads, they appoint the MA
state official as their registrar as their representative for accepting in-state service.
agent for service of P also had to send D a copy of the complaint/summons.
process in cases arising Pawlowski. challenged the courts personal jurisdiction over
out of accidents him.
involving them violate State may exercise personal jurisdiction over Ds implied
due process? consent to states personal jurisdiction through their
conduct
Service can be effectuated when you appoint an agent for
service of process
A state can enact and enforce regulations designed to protect
an important public interest, even against non-residents, as
long as the regulations treat residents and non-residents
equally.
Modern Approach: Minimum Contacts Test
International Is service of process WA statute set up unemployment compensation that required
Shoe v. State of upon Ds agent employer contributions. International Shoe was a DE
Washington sufficient notice when corporation with its principal place of business in MO (citizen
(1945) the corporations of MO); International shoe had a few employees in WA. They
activities result in a did not have authority to enter into contracts or make
large volume of collections. Shoe had no offices in Washington. Notice of suit
interstate commerce so was served on Shoes salespersons and a copy of the notice
76
 that the coroproation was sent by registered mail to Shoes MO address.
receives the protection Historically, Ds presence in the jurisdiction was
of the laws of the state required
and the suit is related Due process only requires that in order to subject a D
to the activities which to a judgment in personam, if he is not present within
make the corporation the territorial jurisdiction, he must have certain
present? minimum contacts with the territory such that
maintenance of the suit does not offend tranditional
notions of fair play and substantial justice
MINIMUM CONTACTS TEST: quality and nature of
the activity in relation to the fair and orderly
administration of law
Shoes contacts with WA were neither irregular nor
casual- they were systematic and continuouscreates
general jurisdiction regardless of where it arose
Nowhere does this overturn Penoyer it expands the
bases of jurisdiction
McGee v. Does CA violate the McGee had a life insurance policy from TX coroporation,
International DP clause by entering International Life Insurance. When the kids tried to collect on
Life Insurance a judgment upon a TX the policy, they were denied.
(1957) insurance company substantial connections with California met the
who only had one minimum contacts test
policy in CA? TX had solicited the business in CA
Relatedness of the claim: Ps claim arises from Ds
conduct with CA
State has an interest in protecting its residents from
bad insurance policies
Court ruled CA did not violate the DP clause and had PJ over
a TX insurance company.
Hanson v. While residing in PA, mom got a trust in DE. She moved to
Denkla (1958) FL later where she died. Two daughters sue after their mother
died and didnt leave them anything.
The nonresident defendant must purposefully avail
itself of the privilege of conducting activities within
the forum state
When D purposefully avails itself of a states benefits
and protections they are put on notice that the could
be hauled into that forum to defend suit stemming
from their in-state activities
World-Wide Must a defendant have VW was a regional distributor in the Northeast. The Robinson
VW v. minimum contacts family bough a car from D and drove it across the country.
Woodson with the forum state While driving through OK, it exploded and they sue in state
(1980) before it can exercise court of OK. VW challenges Personal Jurisdiction of the OK
in personam court over them.
jurisdiction over him? OK court did not have jurisdiction over wholesaler in
NY
unilateral act of a third party got the car from NY
to OK
Court should consider four factors in determining
77
 whether an exercise of PJ would offend traditional
notions of fair play and substantial justice:
o States interest in adjudicating
o Ps interest in obtaining convenient and
effective relief
o Interstate judicial systems interest in
obtaining the most efficient resolution
o Shared interest of the states in further their
public and social policies
Although it may be foreseeable that the car could be
driven into OK, VW could not reasonably anticipate
being sued there
Would it matter if the accident was in CT, much
closer? No, excluding jurisdiction in a contiguous
State such as PA as surely as in more distant States
such as OK. It was not the distance that counts, but
the state sovereignty.
Calder v. May a state court Jones lived in worked in CA and sued Calder who wrote a
Jones (1984) exercise jurisdiction nasty article about her that was widely circulated in CA.
over an out-of-state Calder was served with process by mail in FL.
party whose intentional Because Ds activities are calculated to cause harm in
conduct in the second another state than their own, the state court where the
state is calculated to harm is suffered may exercise personal jurisdiction.
cause, and does cause, o Intent
injury to the D purposefully availed himself of and established
complainant in the first minimum contacts with the state of CA through
state? newspaper sales in CA
It was okay that Calder never set foot in CA! There
was a targeted outreach with a bad effect Calder
Effect
Keeton v. Does NH have NY resident alleging defamation brought suit in corporate
Hustler personal jurisdiction defendants home state of OH. The state was dismissed
Magazine, Incl over a magazine that because SOL had run, so they refilled in NH. Court ultimately
(1984) sells copies there? ruled that the sale in NH of 10k-15k magazines, even though
its only contact with the forum, was sufficient to justify the
exercise of jurisdiction.
[C]ontinuously and deliberately exploited the NH
market, it must reasonable anticipate being haled into
court there in a liable action based on the contents of
the magazine.
Gordy v. Daily Similar to Hustler, but here, court found determinative that
News (1996) the plaintiff lived in Cal and the column was of a nature that
would clearly have a severe impact on Gordy as an
individual.
Noonan v. Police detective involved in a campaign against smoking
Winston found out that his picture was being used in French smoking
Company ads.
(1998) His MA injury was not enough to support jurisdiction
no minimum contacts
78
Griffs v. Luban posted bad messages on an archaeology blog,
Luban (2002) comparing her credentials to a Box of Cracker Jacks. She
filed suit in AL state court, but Luban was MN citizen. Griffs
tried to sue in MN. The mere fact that Luban had known that
the subject of her criticismslived in AL and the internet
postings would affect her there was not sufficient to establish
personal jurisdiction.

Gray v. Defendant manufacturer an allegedly defect safety valve in

American OH and sold it to American Radiator who incorporated the
Radiator & valve into a water heater at its plant in PA. Then, it was sold
Standard to Plaintiff in IL where it exploded.
Sanitary Corp. Court held the long-arm statute for tortious activity
(1961) could read tortious act as the place where the injury
occurred IL court was okay
WW VW
Asahi Metal Man injured and wife killed in motorcycle accident (CA).
Industry Co. v. Brought action against maker of the tire tube, Asahi, and
Superior valve maker in court. Asahi sued Taiwanese tire manufacturer
Court for indemnification in CA claiming that the faulty parts were
the cause of the mans accident. Asahi served process and D
moved to quash for lack of PJ (12b2).
SPLIT OF AUTHORITYTO SHOW PUR. AVAIL:
Brennan: relative contact exists if A put that product into the
stream of commerce and reasonably anticipated it getting to
C, D, or E.
OConnor: It is not enough to show anticipation, there must
also be intention to serve C, D, or E.

Shows Intent:
Designing the product for that market
o Perrier water case designed containers for
US to read in ounces, not metric
o Reanault car case steering wheel on the left,
advertised, distribution
Advertising in that market
Establishing channels for providing repairs / advice
for customers in that state
Marketing the product through a distributor who
serves as a sales agent in that state
In Renault, the court wrote that it may make a difference if
the case is about product safety, rather than indemnification
this would contribute to a States Interest Factor
J. McIntyre Can stream of Nicastro injured his hand while using a metal sheering
Machinery, commerce doctrine machine mfgd by McIntyre. The machine was mfgd in
Ltd. V. displace the general England where the company is incorporated and operates.
Nicastro (2011) rule that exercise of Nicastro filed suit in NJ where the injury occurred.
judicial power is not NJ courts can exercise jurisdiction over a foreign mfg.
lawful unless the of a product as long as the mfg. knows or reasonably
79
 defendant purposefully should know that its products are distributed through a
avails itself of the nationwide distribution system it is a question of
privilege of conducting whether McIntyre purposefully availed himself of NJ
activities within the McIntyre directed marketing efforts at the US, but not
forum state, thus directly to NJ, so NJ does not have jurisdiction
invoking the benefits Court is still split of stream of commerce
of its laws?
Fairness and Inconvenience
Burger King v. Is a party who Rudzewicz (MI) entered a franchise agreement with BK (FL).
Rudzewicz establishes purposeful Rudzewicz defaulted and BK brought a suit in FL. Rud.
(1985) minimum contacts Moved to dismiss because lack of personal jurisdiction, but
with a state subject to court denied.
that states exercise of Franchisees purposefully availed themselves of FL
PJ over him? this protected their interests
Minimum contacts with Florida
Course of dealing is a form of notice
Choice of law clauses : was the forum states law to
control the dispute
If exercising jurisdiction would cause grave hardship
to the D, then exercising jurisdiction would violate
DP.
Economic disparity in bargaining power is not
enough
Personal Jurisdiction in Cyberspace
ALS Scan, INc. May a state exercise PJ ALS Scan brought a copyright infringement claim against
v. Digital over an out of state several defendants including Digital Service Consultants, Inc.
Service person whose only because they used ALSs photos on their porn site.
Consultants, contact with the state is Court may not exercise PJ over an out-of-state person
Inc. (2002) through the internet whose only contact with the state is through internet
and activity is not activity that is not directed at the state.
directed at the state? Zippo Mfg. Co. Sliding Scale Test:
o Directs electronic activity into the state
o With the manifested intent of engaging in
business or other interactions within the state
o That activity creates in a person within the
state, a potential cause of action cognizable in
state courts
Jurisdiction Based on Ds Property in the State
Shaffer v. In order for the forum P owned share of stock in Greyhound, which was
Heitner (1977) state to exercise in rem incorporated in DE. P filed a shareholders derivative suit
jurisdiction on a against the corp for violating their fiduciary responsibilities.
nonresident, must the D challenges PJ.
nonresident have Court says no PJ
minimum contacts While the existence of Ds property within a forum
with the forum state state might suggest that has other contacts with the
such that D has forum, the existence of property alone does not
purposefully availed support personal jurisdiction over the D
himself When P proceeds in rem or quasi in rem against Ds
property, min. contacts test must be established
80
 Court extends minimum contacts analysis to quasi in rem and
in rem actions.

All assertions of state court jurisdiction must be evaluated

according to the standards set forth by International Shoe and
its progeny.

Jurisdiction Based Solely on Personal Service within the Forum State

Burnham v. Does DP deny a state D filed for divorce in NJ, but did not serve P with process. P
Superior court jurisdiction over went to CA and filed for divorce. When D came to visit his
Court of CA a non-resident who children in CA, he was served with process for Ps divorce
(1990) was personally served suit. D challenged PJ.
with process while PJ is effectuated by physical presence
temporarily in that Scalia (majority): Obtaining personal jurisdiction through
state, in a suit service of process of the D in the forum state predates the 14th
unrelated to his amendment and is still a valid way to get PJ over an out-of-
activities in that state? state defendant. (All about the Penoyer history).

Brennans Concurring in Judgment: Defendants presence

must be voluntary.

Goodyear Whether a foreign Two NC boys died in France when a bus crashed due to
Dunlop Tires subsidiary of a U.S. defective tires. The Ps, their parents, brought suit in D for
Operations corporation can be products liability in NC. D moved to dismiss for lack of
S.A., et al. v. held to be under the personal jurisdiction.
Brown et ux., general personal Selling products in the forum state through
Co- jurisdiction of a state intermediaries does not qualify as systematic and
Administrators when it lacks any continuous conduct that would give rise to general in
of the Estate of organized or personam jurisdiction
Brown, et al., continuous business The fact that D placed a product in the stream of
(2011) relationship with the commerce can only support a courts exercise of
state? specific in personam jurisdiction
To get general, P needs to show the D had continuous
and systematic contacts directly with the state
Grace v. Citizen of TN contested exercise of jurisdiction over him in
McArthur AR. US marshal personally served the defendant wile he was
(1959) a passenger on a nonstop flight form Memphis to Dallas.
Defendant was served when they were flying over the Eastern
District of AR. Court upheld based on service.
Note 10, page 824: Personal service may not work on a defendant. Wenche Siemer v. Learjet Acquisition
Corp. (1992)
Note xxx: If youre in that state for the purpose of testifying for another case, you cannot be served. Also,
if you are tricked into coming into that state, you are immune.
Carnival Whether the court P was injured on Ds cruise ship and brought suit against D in
Cruise Lines, should enforce a WA district cout. Forum selection clause required that all
Inc. v. Shute forum-selection clause suits be adjudicated in a court in FL. P moved to dismiss
(1991) forcing individuals to because the court could not exercise personal jurisdiction
submit to jurisdiction over P.
in a particular state? Party can consent to jurisdiction through a non-
81
 negotiated forum selection clause.
Forum selection clauses are examined to see if they
comport with fundamental fairness.

Mulane v. Is notice by D sought to consolidate small trust funds. As per NY statute,

Central publication of judicial D gave notice through publication in a local newspaper.
Hanover Ban settlement to unknown Publication gave Ds contact information and list of all trust
& Trust Co. beneficiaries of a funds that would be consolidated. P challenged this on lack of
(1950) common trust PJ and failing to give proper notice
reasonable notice Notice by publication is inappropriate when parties
(Justice under the due process names and addresses are known
Jackson requirement of the 14th Notice is required in actions against a person
Nuremberg) A? Is notice by pub. Notice is possibly even easier in the internet age
To all the beneficiaries Rule: Post-Mulane, courts have held that DP requires that
whose residences are notice be given to a D by U.S. mail when Ds address is
known reasonable known or can be ascertained by reasonable diligent effort.
under the DP
requirements? Notice must be reasonably calculated under all the
circumstances to apprise interested parties of an action
and given them an opportunity to object.

Personal Jurisdiction Rules

Rule
4(k)(1)(A) Incorporates the local state long-arm statute as a constraint on federal court jurisdiction
4(k)(2)(B) The 100-mile bulge rule, authorizes jurisdiction over an impleaded party not otherwise
within the district courts reach If service was affected within 100 miles of the court

Exception: a party who ordinarily would not be reachable within 100 miles D can
implead
4(k)(1)(C) Provides for nationwide service when authorized by a federal statute
4(k)(2) Extends federal power to its outermost constitutional limits in federal claims cases

For Foreign Companies: federal courts may exercise PJ over the person of any D who
is not subject to the jurisdiction of the courts of general jurisdiction of any state when
sued on claims arising under federal law, and where the exercise of jurisdiction is
consistent with the Constitution and laws of the US
Requires:
1. Does the claim arise under federal law
2. Is the D beyond the jurisdictional reach of any state court
3. Does the exercise of jurisdiction violate rights under the constitution, meaning that
even though the Ds contacts are so scattered that no one state has jurisdiction, there are
sufficient aggregate contacts with the US as a whole to satisfy the 5th amendment DP
clause

12(b)(2)
Rule
12(b)(2) Motion to dismiss for lack of personal jurisdiction
12(h)(1) Waiving Jurisdiction
82
 *Note 9, page 729
Why can you waive PJ but not SMJ under 12(h)(1)?
PJ is not a matter of sovereignty, but a matter of individual liberty. As an individual
right, like any individual right, it can be waived.

Waiving Personal Jurisdiction

Rule
4(k)(1)(A) Incorporates the local state long-arm statute as a constraint on federal court jurisdiction
4(k)(2)(B) The 100-mile bulge rule, authorizes jurisdiction over an impleaded party not otherwise
within the district courts reach If service was affected within 100 miles of the court

Exception: a party who ordinarily would not be reachable within 100 miles D can
implead

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IX. VENUE

Proper Venue 1391(a)

Venue serves as a further geographic limitation on Ps choice of court
There are 94 district courts in the United States
Resident (Venue) v. Citizenship (SMJ)
o Reside is defined by statute
o A human = residence is the district in which you are domiciled (you only have one)
o Business = resides in all districts where it is subject for PJ for this case
o An alien can be sued in any district

Where should we lay venue? Plaintiff has two choices:

1. Did plaintiff lay venue in a district in which all defendants reside? 28 USC 1391(a)(1)
OR - Do all defendants reside in the forum state? If so, we may lay venue where any one of
them resides.
HYPO: if southern d of CA and northern of Ohio, cannot use.
HYPO: If you have a D that resides in Southern CA and one in Northern CA, P may lay venue in
the Southern District of CA or the Northern District of CA.

2. Did plaintiff lay venue in a district where a substantial part of the claim arose? 28 USC
1391(a)(2)

3. Does the Fall Back Provision apply? 1391b3 almost never comes up
Only applies when there is no district anywhere in the US that will meet either of the two choices
Only arises if there is no district in this country where no defendant resides and the thing
happened overseas

Note: These do not apply if the case was removed from state court to federal court. There, that case can
only be removed to the federal court that embraced that state court.

Transfer of Venue 1404 & 1406

Transferor = the original federal district
Transferee = the one to which we transfer = the transferee

Did the court grant a motion to transfer?

Is the transfer within courts of the same system?

federal to federal: can cross state lines
state to state: CANNOT cross state lines

Is transfer proper under 1404(a)? (when transferor is proper)

Does the transferee have proper venue? (must be yes without waiver)
Does the transferee have personal jurisdiction? (must be yes without waiver)
Do parties all agree and the court thinks transfer is a good idea (will almost never happen
because plaintiff will not agree!)
Is the transferee more convenient for parties and witnesses and in the interest of justice?
84
 o Is the transferee the center of gravity?
o Court considers public and private factors:
Private Interest: relative ease of access to sources of proof, availability of
compulsory process for attendance of unwilling, and the cost of obtaining
attendance of willing, witnesses, possibility of view of premises if view would be
appropriate and all other practical problems that would make trial of a case easy,
expeditious, and inexpensive
Public Interest: administrative difficulties flowing from court congestion, the
local interest in having localized controversies decided at home, the interest in
having the trial of a diversity case in a forum that is at home with the law that
must govern the action, the avoidance of unnecessary problems in conflict of
laws, or in the application of a foreign law, and the unfairness of burdening
citizens in an unrelated forum with jury duty
o Is there a forum selection clause? Many courts weigh this as an important factor for a
1404(a) transfer

Is transfer proper under 1406(a)? (when transferor is NOT proper)

Does the transferee have proper venue? (must be yes without waiver)
Does the transferee have personal jurisdiction? (must be yes without waiver)
Court may transfer in the interest of justice or it may dismiss

Forum Non Conveniens

Court DISMISSES case
We dismiss because transfer is impossible
o The better, more convenient, center of gravity court is in a different judicial system
We can dismiss and let the P file a new suit in that new place
Comes up often when the center of gravity is in another country
Critical that the other court be available and adequate- we wont leave a plaintiff with nowhere to
sue
o Adequate does not mean you will recover the same kinds of remedies
Courts often impose condition on forum non conveniens

Case Issue Takeaway

Venue
Piper Aircraft May dismissal be Piper made an aircraft that crashed in Scotland. The
v. Reyno barred solely because propellers were manufactured in Ohio. Reyno sought to
(1981) of the possibility of an prevent transfer of this action on the ground that Scotland law
unfavorable change in was less favorable than PA.
Forum Non Conveniens
law?
A P may not defeat a motion for forum non
conveniens merely by showing that the substantive
law that would be applied in the alternate forum is less
favorable to the P than that of the present forum
FNC gives court discretion
Why FNC? Availability of witnesses, wreckage,
difficulty with foreign laws
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 Court considers public and private factors in ftn. 6:
o Private: relative ease of access to sources of
proof, availability of compulsory process for
attendance of unwilling, and the cost of
obtaining attendance of willing, witnesses,
possibility of view of premises if view would
be appropriate and all other practical problems
that would make trial of a case easy,
expeditious, and inexpensive
o Public Interest: administrative difficulties
flowing from court congestion, the local
interest in having localized controversies
decided at home, the interest in having the
trial of a diversity case in a forum that is at
home with the law that must govern the action,
the avoidance of unnecessary problems in
conflict of laws, or in the application of a
foreign law, and the unfairness of burdening
citizens in an unrelated forum with jury duty

Venue Statutes
Rule
28 U.S.C. (a) for the convenience of parties and witnesses, in the interest of justice, a district court
1404 may transfer any civil action to any other district or division where it might have been
brought or to any district or division which all parties have consented.
28 U.S.C. (a) The district court of a district in which is filed a cause laying venue in the wrong
1406 division or district shall dismiss, or if it be in the interest of justice, transfer such case to
any district or division in which it could have been brought.

12(b)(3)
Rule
12(b)(3) Motion to dismiss for improper venue
12(h)(1) Waiving Venue (Disfavored Defense)

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X. SUBJECT MATTER JURISDICTION
Subject Matter Jurisdiction is the power of a court to hear a particular type of case. This focuses our
attention to the choice between state and federal courts.

State courts have general subject matter jurisdiction, while federal courts have limited subject
matter jurisdiction. If either the state or the federal court can hear it, there is concurrent jurisdiction. In
a very narrow subset of cases where the federal courts have subject matter jurisdiction, they have
exclusive jurisdiction.

Federal courts can hear claims:

1. between citizens of different states diversity (1332)
2. OR cases about a federal question of law (1331)

Diversity Jurisdiction
Under 28 U.S.C. 1332, the district court has original jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000 and is between citizens of different states.
Citizenship = defined by domicile. To establish domicile, plaintiff must reside there and have an
intent to stay (Contrast this with Residence for Venue purposes)
o Drivers license, address, bank, employed, etc.
o You dont lose your old domicile until you get a new one
Corporations will have dual citizenship
o Place of incorporation, and
o Principal place of business Nerve Center Test
Hertz case

Is there complete diversity on both sides of the v?

Where are parties domiciled?
o What is the nerve center of a corporation?
o What is the residence and intent to stay of an individual?
Strawbridge v. Cutiss (1806): Required complete diversity.

Does the minimum amount in controversy exceed $75,000?

Did you plead $75,000, but only recover $70,000?
o That is okay if you plead in good faith
o It will not void the judgment, but the judge may make you pay court cost (1332(b))
Is the amount in controversy from a single defendant?
o Can the plaintiff use claim joinder to aggregate claims to reach minimum amount in
controversy? Rule 18
It is okay if there are different theories, as long as it is the same D.
Is the claim seeking non-monetary (injunctive or declaratory) relief?
o The general rule is that the courts weigh the value of the right sought to be enforced or
the cost to D

Exceptions to Diversity Jurisdiction:

Elizabeth Taylor case: she was a citizen of the US who lived abroad and intended to remain
there. She was a citizen domiciled abroad. She could not bring this suit with Richard Burton
(also a foreigner) under 1331(a)(3) because neither of them were citizens of a state.

87
 Domestic Relations and Probate have long been considered outside the realm of diversity
jurisdiction

Federal Question Jurisdiction

Under 28 U.S.C. 1331, the district court has original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.

Does the issue arise under federal law?

Is the federal question pleaded in the complaint based on the federal law / Constitution? (Mottley
Rule)

Mottley Rule: If a P is invoking a federal question jurisdiction then a federa question must be pleaded
in the complaint that its claim is based upon federal law / Constitution.
Counterclaims cannot be used to establish federal question jurisdiction.
If jurisdiction over claims is based on mixture of federal and state law,
o Merrell Dow Pharmaceuticals (1986) Complaint asserted state law claims of N and
product liability and alleged violations of a Federal Act (but the federal act did not give
rise to an independent right of action). Court said there was no federal question because
complaint alleging a violation of a federal statute as an element of a state cause of
action, when Congress has determined that there is no private right, does not state a claim
arising under the Constitution.
o Grabel & Sons Methal Products, Inc. v. Darue Engineering & Mfg. (2005) IRS seized
property from Grable to satisfy delinquent federal taxes. Grable brought a state court
action to quet the title (state law claim) and Grable argued the title was invalid because
IRS failed to provide them with personal notice required by statute. Court said the
meaning of the federal statute is in dispute.
o Note: WV judge who loves to give away out-of-state money

Case Issue Takeaway

Diversity Jurisdiction
Ochoa v. PV Whether the court has P (LA resident) was rear-ended by D (LA resident who
Holding Corp. SMJ over the case moved to TX after Katrina). P sued in LA state court. D
(2007) when a defendant was removed. P moved to remand the case back to state court for
domiciled in the same lack of diversity arguing that Ds domicile at the time of
accident was LA.
state as the plaintiff
To determine domicile, the court must look at the
state, but has since
facts of each litigants situation
evacuated? State citizenship for diversity jurisdiction purpose is
determined by federal common law, there must be
diversity of citizenship at the time the complaint is
filed
A persons domicile is decided by several factual
considerations the court will take into consideration. Federal
court must have complete diversity between parties.
Louisville & Although there is no Ps were given unlimited railroad passes by D after they were
Nashville diversity of citizenship injured on Ds train. After a federal law was enacted barring
Railroad Co. v. jurisdiction, can the such passes, the D refused to renew the passes. P sued D for
Mottley (1908) specific performance of their contract. This was a breach of
88
 appellees bring suit in contract (not a federal claim). They anticipated that D would
Litigation federal court based on need to respond with the Congressional Statute, and thus, this
Losers Hall of federal question would be a federal question.
Fame jurisdiction? MOTTLEY WELL-PLEADED RULE: If a P is
invoking federal question jurisdiction, then a federal
question must be pleaded in the complaint that its
claim is based upon federal law / Constitution
A P cannot merely allege an anticipated defense and
assert that the defense is in conflict with federal law or
the Constitution to satisfy the Federal Question
jurisdiction
Federal Question: must be a question of federal law

Dismissal at Trial Rules

Rule
28 Federal Question The district courts shall have original jurisdiction of all civil actions
U.S.C. arising under the Constitution, laws, or treaties of the United States.
1331
28 Diversity of The district courts shall have original jurisdiction of all civil actions
U.S.C. Citizenship; where the matter in controversy exceeds the sum or value of $75,000,
1332 Amount in exclusive of interest and costs, and is between:
Controversy (1) citizens of different states
(2) citizens of a State and citizens of a foreign state, except that the
district courts shall not have original jurisdiction under this subsection of
an action between citizens of a State and citizens or subjects of a foreign
state who are lawfully admitted for permanent residence in the United
States and are domiciled in the same State
(3) citizens of different States and in which citizens or subjects of a
foreign state are additional parties; and
(4) a foreign state,

12(b)(1)
Rule
12(b)(3) Motion to dismiss lack of subject matter jurisdiction (waivable)
12(h)(1) Waiving Venue (Disfavored Defense)

*Note 9, page 729

Why can you waive PJ but not SMJ under 12(h)(1)?
PJ is not a matter of sovereignty, but a matter of individual liberty. As an individual
right, like any individual right, it can be waived.

And *Note 2, page 875

As SMJ is a defense that cannot be waived, understand that SMJ is also something that
cannot be created by the parties consent.

Adv. Comm. Notes: lack of SMJ cannot be cured by consent or waiver of the parties,
and may even be raised by the court on its own initiative, because it goes to the core
authority of the court to hear the case.

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Supplemental Jurisdiction
Pendant for claims where federal question jurisdiction must have a federal question
Ancillary for claims in diversity
o Cannot have in permissive cross claims or counterclaims because they are not logically
related to the original claims
o POLICY rationale for ancillary J: consolidation of main and ancillary claims fosters
judicial efficiency
Pendant Party the power of courts to hear claims against parties not named in any claim that
does not arise out of the courts federal question or diversity jurisdiction

NOTE: Can only get diversity sup. Jurisdiction (ancillary) for amount in controversy, cannot get
it for citizenship/complete diversity requirement. If diversity is destroyed, it has to go to state
court

1. Is the claim one for which there is an independent ground for subject matter jurisdiction? I.e. is
there diversity jurisdiction or federal question jurisdiction over the claim?
If yes, stop. Then there is subject matter jurisdiction. You need not concern yourself with
supplemental jurisdiction and 1367.
If no, go on to step 2.

2. Is the claim part of the same "case or controversy" (i.e. part of the "same transaction or
occurrence") as the original claim?
If yes, go on to step 3.
If no, stop. There is no supplemental jurisdiction. This part is based on 1367(a)

3. Is the original claim within the subject matter jurisdiction of the federal court only because of
diversity?
If yes, go on to step 4.
If no, stop. There is supplemental jurisdiction under 1367(a). 1367(b) does not apply (federal
question pendant jurisdiction)

5. Was the defendant first made a party to the case by FRCP 14 or 20? If no, there is supplemental
jurisdiction under 1367(b)?
If yes, there is no supplemental jurisdiction. See 1367(b).

Notes:
"The claim" is the claim over which you are trying to determine whether the federal courts have
subject matter jurisdiction. Each claim must be analyzed separately.
"The original claim" is a claim to which "the claim" is joined and for which subject matter
jurisdiction has already been established without resort to supplemental jurisdiction.
Under 1367(d), the SOL is tolled once they are filed as pendant claims, and if dismissed by the
federal court, the SOL is tolled for another 30 days, unless the State statute allows for a longer
tolling period. This allows parties who state claims that are dismissed in federal court a chance to
refile in state court.

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Case Issue Takeaway
Diversity Jurisdiction
United Mine Whether the Labor Union (D) prevented Gibbs (P) from opening and
Works for relationship between operating his employers mine by force and protest. Gibbs
America v. the exiting state- sued for violation of the Labor Management Relations Act.
Gibbs (1966) created claim and the And on state law claims. The Federal question later dropped
out and P won on state law claims.
federal claim were
Pendant Claim jurisdiction the power of the federal
close enough to permit
courts to hear state law claims that do not fall into the
a conclusion that the federal question category
entire action before the Federal court may exercise jurisdiction over pendent
court comprises one claims when:
continual case/ o The federal claims and the state claims for
one constitutional case
o The court can confer SMJ over the federal
claims
o The federal and state claims derive from a
common nucleus of operative fact
o Both state and federal claims are such that a
party would be ordinarily expected to try
them all in one judicial proceeding
Federal courts are not required to exercise pendant
claim jurisdiction discretionary
If federal claims are dismissed before trial, then the
federal courts should dismiss the state claims as well
If state issues predominate the case, the state claims
should be dismissed UNLESS the state claims are
closely tied to questions of federal policy

In cases where a plaintiff has both federal and state claims

against the defendant, although there may be no diversity
jurisdiction, the federal court has discretion to exercise
pendent claim jurisdiction over the state claim base upon state
law if the state-created claim and the federal claim derive
from a common nucleus of operative fact, and are such that a
plaintiff would ordinarily be expected to try them all in one
judicial proceeding.
Owen Whether a federal Ps husband was killed by an electrocution caused by Ds. P
Equipment & court has ancillary sues the power company (diversity) and then the power
Erection Co. v. jurisdiction over a company impleads the construction company (destroys
Kroger (1978) third-party defendant jurisdiction discovery revealed that a river made the
construction company in the same state as Owen).
named in an amended
Because diversity jurisdiction is destroyed, court tries
complaint in a suit in
ancillary jurisdiction
which complete While the district court may have the constitutional
diversity exists authority to hear the pendent or axillary claims, they

91
 between the plaintiff must see if federal SMJ statutes would allow the court
and the original to exercise jurisdiction over the claim
defendant, but where o Ancillary J cannot extend to amended
the newly named third- claims by the P against a non-diverse D and
party defendant is a does not involve a federal question
Ancillary J does not extend to permissive counterclaims or
citizen of the same
cross claims b/c they are not logically related to the original
state that the plaintiff claims
is?
Finley v. Can petitioner Ps husband and children die in a plane crash due to low
United States establish pendent power lines. P sued electric company and FAA. FAA and
(1989) jurisdiction in federal FTCA later amended the complaint to sue a utility co on state
courts over defendants law grounds. D challenged SMJ over the state law claims.
For a court to exercise pendent party jurisdiction that
with state claims when
jurisdiction must be granted by the Consittution and
there is no independent
the specific jurisdiction statute
basis for bringing the o FTCA claims MUST be brought in federal
action there? court

Supplemental Jurisdiction Statute

Rule
28 U.S.C Supplemental (a) Except as provided in subsections (b) and (c) or as expressly provided
1367(a) Jurisdiction otherwise by Federal statute, in any civil action of which the district
courts have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so related to
(related to claims in the action within such original jurisdiction that they form part
the claims) of the same case or controversy under Article III of the United States
Constitution. Such supplemental jurisdiction shall include claims that
involve the joinder or intervention of additional parties.
28 U.S.C. Supplemental (b) In any civil action of which the district courts have original
1367(b) Jurisdiction jurisdiction founded solely on section 1332 (diversity), the district courts
shall not have supplemental jurisdiction under subsection (a) over claims
(diversity) by the plaintiffs against persons made parties under 14, 19, 20, or 24 of
the FRCP, or over claims by persons proposed to be joined as plaintiffs
under Rule 19 of such rules, or seeking to intervene as plaintiffs, when
exercising supplemental jurisdiction over such claims would be
inconsistent with the jurisdictional requirements in 1332.

Removal
Did P initially choose the state court?
If diversity or federal question, D can usually remove to federal court under 28 USC 1441.
o usually because the Ds right to remove is not completely coextensive with the Ps
right to initially chose the federal forum
Did D make a motion to remove to federal court?
o No Under 28 USC 1446(a), D simply files a notice of removal in federal district
embracing the place where state action is pending

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 o Is removal improper?
Yes P should file motion to remand case back to state court under 1446(c).
Did D meet timing requirements?
o Did D remove the action within 30 days of being served the complaint? 1446(b)

Have the circumstances changed such that the court is no longer appropriate?
Have the circumstances changed that creates diversity jurisdiction?
o Yes D has a 30 day window to file notice of removal only if the removal occurs within
one year of the commencement of the after; after on year, the action is not removable
absent bad faith on the part of P. 1446(c)(1)
Have the circumstances changed that creates a federal question jurisdiction?
o Yes a 30-day window opens no matter how much time has passed since the
commencement of the action.

Is more than D joined in the action?

Did all Ds join the action; all must join in the notice of removal. 1446(b)(2)(A).
o Noaction cannot be removed
EXCEPTION: situations where a civil action includes both removable and
unremovable claims.

Removal Statute
Rule
28 U.S.C Actions Generally. Except as otherwise expressly provided by Act of Congress,
1441(a) Removable any civil action brought in a State court of which the district courts of
Generally the United States have original jurisdiction, may be removed by the
defendant or the defendants, to the district court of the United States for
the district and division embracing the place where such action is
pending.
(b) for diversity citizenship. may not be removed if any of the parties
in interest properly joined and served defendants is a citizen of the State
in which such action is brought.
(c) Joinder of Federal law claims and State law claims. (paraphrased)
If a claim arises under a federal question and the claim is not within
original OR supplemental jurisdiction of the district courts, the entire
action may be removed if the action would be removable
28 U.S.C. Procedure for Generally. A defendant or defendants desiring to remove any civil action
1446(a) Removal of from a State court shall file in district court of the United States for the
Civil Actions district and division within which such action is pending a notice of
removed signed pursuant to Rule 11 and containing a short and plain
statement of the grounds for removal, together with a copy of all
process, pleadings, and orders served upon such defendant or defendants
in such action.

(If removal is improper, the plaintiff should file a motion to remand the
case back to state court 28USC 1446(c)).

93
1446(b) Requirements (1) The notice of removal of a civil action or proceeding shall be filed
for Removal within 30 days after the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading setting forth the claim for
relief upon which such action or proceeding is based, or within 30 days
after the service of summons upon the defendant if such initial pleading
has then been filed in court and is not required to be served on the
defendant, whichever period is shorter.
(2) When a civil action is removed solely under section 1441(a), all
defendants who have been property joined and served must join in or
consent to removal.
1446(c) Requirements; (a) a case may not be removed under (b)(3) on the basis of jurisdiction
removal based conferred by section 1332 more than 1 year after commencement of the
on diversity of action, unless the district court finds that the plaintiff has acted in bad
citizenship faith in order to prevent a defendant from removing the action.
(b) If removal of a civil action is sought on the basis of the jurisdiction
conferred by section 1332(a), the sum demanded in good faith in the
initial pleading shall be deemed to be the amount in controversy except
if the initial pleading seeks (i) nonmonetary relief; or (ii) money
judgment.

94
XI. ERIE DOCTRINE: Choice of Federal or State Law
Rules Enabling Act: Congress gives SCOTUS the power to promulgate the Federal Rules of
Civil Procedure
Rules of Decision Act: substantive state law should be applied in state cases unless the US
Constitution or Congress says otherwise
o The laws of several states, except where the Constitutions or treaties of the US or acts of
US Congress require, shall be regarded as a rule of decision in civil actions in the courts
of the United States (federal courts).
Erie Black Letter Law: In diversity cases, a federal court must apply state substantive law.
o Why? Rules of Decision Act and the 10th Amendment

Erie will only come up when there is a federal court sitting in diversity and in deciding an issue, the
judge must decide to apply or ignore state law.

1. Is there a federal provision (FRCP, Federal Statute, Constitution) on point that directly
conflicts with state law?
Is the provision arguably procedural, meaning that it is valid under 2072?
o Yes Apply federal procedural law (Hanna) because of the Rules Enabling Act
o No Apply Erie. The court must apply state substantive law where it conflicts with
federal law
^Often, courts will read procedural rules and statute narrowly as to avoid the Hanna Test conflict

2. If there is no federal provision on point, federal judges must apply state law on a substantive
issue. Is the provision substantive?
Is there a different outcome when applying state v. federal law? Outcome Determination Test
from Guaranty Trust v. York
Is there a balance of interests in favor of either federal or state law? Balance of Interests Tests
from Byrd v. Blue Ridge Trust
o If a law is not clearly substantive federal court should apply the state law unless the
federal court system has an interest in doing things a certain way
o In Byrd, federal court had an interest in allocating power between a judge and jury and
state had no reason for sending things only to a judge
Does use of the state law meet the Twin Aims of Erie from Hanna dicta?
o Avoiding Forum Shopping will parties flock to federal court to get a different
outcome?
o Inequitable Administration of Justice are state citizens who cant get diversity
citizenship to get into federal court going to be disadvantaged?

HYPO 1: Case filed in District Court under diversity for a class action. FRCP Rule 23 would allow but
the state law says in this kind of claim, plaintiffs cannot proceed as a class. What law applies.
1. Hanna test: Is there a federal provision on point? Yes! Rule 23.
Is it valid under 2072 aka arguably procedural? Yes!

HYPO 2: State X passes a statute when Plaintiff sues for medical malpractice before trial the case must
go first to arbitration. After arbitration, if you do not like the result, you can come back into the ligitation
stream. Jury will be told arbitration result. Citizen of Y comes into state X and goes to the doctor. Then,
Citizen Y claims that X committed malpractice. Which law, the state arbitration law or a federal jury
applies?
1. Hanna test, is there a federal law on point? No federal statute governing medical malpractice cases
95
2. Erie test:
Would applying a different law be outcome determinative? We dont know if arbitration or jury
would reach a different conclusion, but we do know that it could.
How does this issue weigh for the balancing of interests?
o State interest: reduce medical malpractice costs; healthcare quality for population;
healthcare costs for population (different than in Byrd where there was not really a
reason)
o Federal interest: in preserving the jury right. But under the state law, the right to a jury is
preserved, it is just delayed.
o This weighs in favor of the state
Will people flock to federal court, and thus forum shop? Yes, people advancing medical
malpractice claims will seek federal court and forum shop.
Is there an inequitable administration of the law? Yes, by applying state law, state citizens are at
a disadvantage if they cannot get into federal court.
On the whole, this looks like it weighs in favor of applying state law.

Case Issue Takeaway

Diversity Jurisdiction
Erie Railroad Should PA law apply P was hit by a door that flew off Ds train while walking
Co. v. to the Plaintiffs case? along the train tracks. P sued D in NY federal court for
Tompkins, negligence (Diversity action between PA and NY). There was
1938 a question if PA law applies. P argued that because there was
no statute on either issue raised by his suit court should apply
federal common law.
Except when a claim raises a federal question related
to a federal law, Constitution, etc. the federal courts
should apply the applicable state statutory and
common law in diversity suits
Courts should apply substantive state law
Courts should apply federal procedural law
The Judiciary Act (Rules of Decision Act) mandates
that the federal court should apply state statutes and
common law in diversity cases

Policy Rationale: doing so will lead to less forum shopping

and avoid the inequitable administration of the laws.
The goal of diversity jurisdiction was to prevent
discrimination against a nonresident in state courts by
providing a federal forum. We cannot allow
discrimination against citizens by applying federal law
to some people and state law for others.
The terms laws in the Rules of Decision Act refers to the
decisions of local tribunals as well as State Statutes, their
interpretations by the courts, and the rights and titles to things
having permanent locality.

Erie Black Letter Law: In diversity cases, a federal

court must apply state substantive law.
96
Guaranty When no recovery can A trustee, D, agreed to pay bad price for security notes. The
Trust Co. v. be had in state court note holders sued for reach of trust in a class action in the
York (1945) because the action was Southern District of New York. D made affirmative defense
barred by State SOL, that the SOL had expired.
Using the Outcome Determination Test, outcomes
can a federal court hear
will be different if state or federal law is applied.
the issue because the
Outcome Determination Test: When state procedure
federal SOL allows would change the outcome of the case, then federal
and there is diversity court should apply state law
jurisdiction? The federal court sitting in diversity should apply state law on
the SOL because the outcomes would be different if state or
federal law was applied.
Byrd v. Blue Should courts weigh P injured while construction power lines for D. P sued D in
Ridge Rural the countervailing federal court for negligence. D made the defense that the suit
Electronic federal and state was barred because under state statute, a judge will decide
Cooperative, considerations to employees case. Under federal law, the jury will decide.
Inc., 1958 The outcome determination test should be applied
determine whether to
because Erie commands uniformity
apply state law?
Countervailing equities should be considered federal
/ state policies
The right to a jury was not eviscerated, it was just
delayed state did not have a reason for doing it this
way, but the federal government wanted to uphold the
right to a jury as a matter of Constitution
Erie is not a talisman
HYPO: What if this case was not in federal court?
There are concerns about bias against NC
Judge would decide, not a jury
7th Amendment does not apply to states so having a
judge decide is not an issue
Hanna v. In a question of P and D were in a car accident in SC. Parties were from D
Plummer whether to apply (MA) and P (OH). Ds wife was served with process in
(1965) federal rule or state accordance with FRCP Rule 4 (substituted service) in MA.
rule (both procedural), But, MA has different procedural requirement for serving
process. Which rule applies?
and the choice is
Outcome Determinative Test: This changes the
outcome
outcome of the case
determinative, which Rules Enabling Act, not the Rules of Decision Act,
rule should apply? because this is procedural and the Rules Enabling Act
was Congresss way of giving SCOTUS power to
promulgate the FRCP
If a state procedure conflicts with federal procedure
APPLY FRCP, unless
o Party advocating for state procedure can show
that the FRCP rule is not purely procedural
and goes beyond the Rules Enabling Act (high
standard)
o OR, FRCP is not purely procedural when it
abridges, modifies, or enlarges a substantive
97
 right
If a rule at issue is procedural and the federal rule is
on point with the state rule, than the Federal Rule
must be applied as long as it complies with the Rules
Enabling Act.
Erie was never invoked to void a federal rule
Walker v. Is a state statute that P injured by Ds product. D moved to dismiss because the
Armco Steel determines when a SOL had passed.
Corp. 1980 cause of action
commences for the The FRCP must directly conflict with the state law /
procedure dealing with the same issue in order for the federal
purposes of tolling the
procedural law (FRCP) to apply. Because Rule 3 was
SOL applicable in
interpreted narrowly only to mean the date by which other
federal court under requirements of the FRCP begin to run does not affect the
Erie where the statute state SOL.
is not in direct conflict
with Rule 3 of the
FRCP?

Erie Statues
Rule
28 U.S.C. Rules (a) The Supreme Court and all courts established by Act of Congress may
2071 Enabling Act from time to time prescribe rule for the conduct of their business. Such
rules shall be consistent with Acts of Congress and rules of practice and
Hanna procedure prescribed under section 2072 of this title.
(b) Any rules prescribed by a court, other than the Supreme Court, under
subsection (a) shall be prescribed only after giving appropriate public
notice and an opportunity for comment. Such rule shall take effect upon
the date specified by the prescribing court and shall have such effect on
pending proceedings as the prescribing court may order.
(c) (1) A rule of a district court prescribed under subsection (a) shall
remain in effect unless modified or abrogated by the judicial council of
the relevant circuit.
(2) Any other rule prescribed by a court other than the Supreme Court
under subsection (a) shall remain in effect unless modified or abrogated
by the Judicial Conference.
(d) Copies of rules prescribed under subsection (a) by a district court
shall be furnished to the judicial council, and copies of all rules
prescribed by a court other than the Supreme Court under subsection (a)
shall be furnished be furnished the Director of the Admin. Office of the
United States Courts and made available to the public.
(e) If the prescribing court determines that there is an immediate need for
a rule, such court may proceed under this section without public notice
and opportunity for comment, but such court shall promptly thereafter
afford such notice and opportunity for comment.
(f) No rule may be prescribed by a district court other than under this
action
28 U.S.C. Rules of The laws of the several states, except where the Constitution or treaties of
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1652 Decision Act the United States or Acts of Congress otherwise require or provide, shall
be regarded as rules of decision in civil actions in the courts of the United
Erie States, in cases where they apply.

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XII. Finality and Preclusion
Issues arise in two situations on an exam:
o #1 Judgment was entered
o #2 Judgment in another case is pending
o Question: does #1 judgment stop litigation for #2?
Court in case #2 applies preclusion rules of case #1 court

Res Judicata / Claim Preclusion

Under the doctrine of claim preclusion, a final judgment forecloses successive litigation on the very
same claim, whether or not relitigation of the claim raises the same issues as the earlier suit. (Taylor).

1. Are case one and case two brought by the same claimant (covers counterclaims) against the
same defendant?
Generally, those not party to a judgment are not bound by it, except when parties are bound by:
Agreement
Legal representation (privity, assignor, bailor, bailee, etc.
Adequately represented (Rule 23), trustee, guardian,
Assumed control of the litigation
cannot use a proxy to relitigate
If allowed by statute
o Bankruptcy you can be bound by a bankruptcy judgment, even if youre not a party in
the first instances
Are case one and case two brought by the same claimant (covers counterclaims) against the same
defendant?

2. Was there a valid final judgment?

Judgment need not be right to preclude further litigation, it need only be final and on the merits

2. Was the judgment on the merits?

Did the parties have full opportunity to litigate an issue?
On the merits:
o Default judgments
o ANY judgment in favor of the claimant
o Involuntary dismissal under 41(b) unless it was based on jurisdiction, venue, or 19b
indispensible parties
o If court says without prejudice
o Discovery sanctions

3. Are claims the same in the first and second suits?

Transaction and Occurrence Test (Car Carriers) single, wrongful act test

More about claim preclusion / Res Judicata

Same parties should not be allowed to relitigate issues
STRATEGIC CONSIDERATIONS: encourages Ps to assert all legal claims arising out of an
incident/t/o AND against the same party in one lawsuit or else they may be precluded from
raising these later

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 o RJ does not generally bar claims between parties who have already litigated against one
another when the new claims arise out of different events
o The purpose of liberal joinder rules is mean tot facilitate this process, thus, the courts
apply res judicata rigorously to those who do not take advantage of the liberal joinder
rules
Public Policy Rationales
o Finality Ds should have final resolutions with the lawsuit
o Judicial resources scarce and should not be used to litigate cases that have already be
litigated to final judgment
o A litigant can use the appeals process
o Due Process should parties be bound by decision in which they were not a party
Res judicata is an affirmative defense
Claim Splitting: the process of splitting up claims that arise from the same t/o and filing them in
different lawsuits. Once claim splitting has be found, the court will apply res judicata.
o Also applies when parties try to split their relief
o Dont want Ps to wait and see
Merger: If claimant won #1
Bar: If claimant lost #2
Relationship to other rules:
o 13(a) Compulsory Counterclaim
Must bring compulsory counterclaim or waived or precluded
Preclusion applies to must bring all claims at once
FRCP is liberal, but any party is required to raise any other claims arising out of
the same T/O

What constitutes a Final Valid Judgment on the Merits?

Restatement (Second) of Judgments
Section 20. Judgment for Defendant Exceptions to the General Rule of Bar
(1) A personal judgment for the defendant, although valid and final, does not bar another action by the plaintiff on
the same claim:
a. When the judgment is one of dismissal for lack of jurisdiction, for improper venue, or for nonjoinder
or misjoinder of parties; or
b. When the plaintiff agrees to or elects a nonsuit (or voluntary dismissal) without prejudice or the court
directs that the plaintiff be nonsuited (or that the action be otherwise dismissed) without prejudice;. . .
(can be litigated again in another court)

1. So what constitutes the same claim?

Restatement (Second) of Judgments
Section 24 Dimensions of claim for purposes of merger or bar general rule concerning splitting
(1) When a valid and final judgment rendered in an action extinguishes the plaintiffs claim pursuant to the rules
of merger or bar, the claim extinguished includes all rights of the plaintiff to remedies against the defendant
with respect to all or any part of the transaction, or series of connected transactions, out of which the action
arose
(2) What factual grouping constitutes a transaction, and what grouping constitutes a series, are to be
determined pragmatically, giving weight to such considerations as whether the facts are related in time, space,
origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms
to the parties expectations or business understanding or usage.

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Comments:
(a) Rationale of a transactional view of claim: Present trend is to see claim in factual terms and make it
coterminous with the transaction, regardless of:
a. The number of substantive theories, or variant forms of relief flowing from these theories
b. The number of primary rights that may have been invaded
c. The variations in the evidence needed to support the theories or rights
The law of res judicata now reflects the expectations that parties who are given the capacity to present their entire
controversies will do so.
(b) Transaction: invokes a pragmatic standard to be applied with attention to the facts of the cases, balancing the
interests of the D and of the courts in bringing litigation to a close and the interest of the P in the vindication of
a just claim.
a. Facts need to form a convenient unit for trial purposes. The court will ask:
i. How far the witnesses or proofs in the 2nd action would tend to overlap the witness or proofs
relevant to the 1st
1. If substantial overlap, the 2nd action should be precluded
ii. Although, the opposite doesnt hold true even where there isnt substantial overlap, the 2nd
action may be precluded if it stems from the same transaction or series.
b. Transaction may be single despite different harms, substantive theories, measures or kinds of relief.
i. The number of different legal theories casting liability on an actor may apply to a given
episode does not create multiple transactions and hence multiple claims.

Comments to pay attention to:

(4) Claim preclusion: the doctrine of claim preclusion makes a valid, final judgment conclusive on the parties
and their privies, and bars further litigation of all matters that were or should have been adjudicated in the
action. This is so even though the claimant is prepared in a second action to present different evidence or legal
theories to support his claim, or seeks different remedies. The doctrine is a ramification of the policy
considerations that underlie the rule against splitting a cause of action, and is based on the idea that the party
to be precluded has had the incentive and opportunity to litigate the matter fully in the first lawsuit. As such,
it applies only where both actions were based on the same claim.

Examples of privity:
A person acquires an interest in property that has already been the subject of a lawsuit. Thus an heir who
inherits land, or a successive buyer, is bound by a prior judgment regarding an easement
A party litigates in a representative capacity. A judgment in a suit brought by or against the trustee may, for
example, bind the beneficiary in a subsequent action
A close familial relationship exists between a party in the prior case and a litigant in the present case whose
claim is derivative of or closely aligned with the formers. A wife was deemed bound by the outcome of her
husbands prior bankruptcy proceeding, even though she was not a party to it, because the claims she asserted
in the current action derived exclusively from claims assert by her husband (Eubanks v. FDIC)

Claim preclusion should not be confused with stare decisis, where:

Courts generally follow past precedent in resolving questions of law
A basic self-governing principle within the judicial brant designed to ensure tha thte law will not
change erratically
It permits society to presume that bedrock principles are founded in the law rather than in the proclivities
of individuals
Applies to all applicants, not just the parties (such as in claims and issue preclusion)

Case Issue Takeaway

Car If prior case P sued D alleging conspiracy in violating the Sherman Antitrust act in
Carriers, using same first suit and suit for dismissed. P brought a second suit against D
Inc. v. Ford facts/transactions using the same facts/transactions and brought suit using RICO. 2nd
Motor has been Suit dismissed due to res judicata
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Company, litigated to final
1989 judgment, can P Res judicata bars a P from relitigating a cause of action although
bring a second they are doing so through a different legal theory
(Res suit on the same o Cant just come back with a new legal theory when you
Judicata facts/transactions lose
topic) under a new In determining the whether the cause of action is the same in both
theory? the suits, the courts should see if the claims arise out the same
transaction or single core of operative facts if yes then res
judicata applies
Car Carriers wants to use Right-duty approach. Court says it
should not be used as a substitute for the same transaction test
without compelling circumstances.
The present suit is barred by the earlier judgment; District Court
judgment affirmed

In determining the scope of a cause of action, they utilized the

same transaction test. It is fact oriented:
Cause of action consists of a single core of operative facts
which give rise to its remedy.
Once a transaction has caused injury, all claims arising from
that transaction must be brought in 1 suit or are lost.
Prior litigation acts as a bar not only to those issues which were
raised and decided in earlier litigation, but also to those issues
which could have been raised originally

Takeaway from class:

1. Identity of the parties (the same?) OR in privity
2. Identity of the causes of action
3. There has to be a final judgment for res judicata to apply
cant split your claims
The courts will apply the res judicata doctrine to prohibit a second
filing when the second action arises from the same transaction that the
first filing arises from.
Brent Was Taylor Airplane enthusiast initiated a claim the same month as his friend lost
Taylor v. virtunally an appeal for the specs of an airplaine. Files a FOIA request for the
Robert represented in spects. 10th Cir. Denied the friends claims because privilege. Both
Sturgell the original point to an old letter which they say waives the priviliege.
(2009) claim? Court says company reversed the wiaver
PRECULSION ISSUE: Herric already litigated the claim and it
was dismissed. Was Taylor virtually represented in the claim?
No, did not have full opportunity to litigate

Res Judicata Rules

Rule
Section 17: General A valid and person judgment is conclusive between the parties, except
Effects of Rules on appear or other direct review, to the following extent:
Former 1. if the judgment is in favor of the P, the claim is extinguished and
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Adjudication merged in the judgment
2. if the judgment is in favor of the D, the claim is extinguished and the
judgment bars a subsequent action on that claim

NOTE: While the CL assigned different terms to the doctrine of res

judicata depending on which party prevailed, there could be no
subsequent action on the claim)

1. A judgment in favor of either the P or the D is conclusive,

in a subsequent action between them on the same or a
different claim, with respect to any issue actually litigated
and determined if its determination was essential to that
judgment.
Comment: Erroneous judgment: Rules still apply regardless if the valid
and final judgment is erroneous and subject to reversal. In these cases,
the unhappy party can have it set aside or reversed in the original
proceedings. Such a remedy may be sought by a motion for a new trial
or other relief in the court that rendered the judgment, or by an appeal.

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Issue Preclusion / Collateral Estoppel
Issue preclusion bars successive litigation of an issue of fact or law actually litigated and resolved in a
valid court determination essential to the prior judgment, even if the issue recurs in the context of a
different claim.
Burden is on the party trying to prove:
o Issue preclusion: To defend successfully on the ground of issue preclusion, the defendant must
establish that the issue of fact sought to be foreclosed actually was litigated and determined in a prior
action between the parties or their privies, and that the determination was essential to the decision in
the prior action.
HYPO: Case #1 established issues A, B, C, D; Case #2 wants to sue on A, X, Y, Z A is
precluded
Effect of collateral estoppel that issue is established for #2

1. Did case #1 end in a valid judgment on the merits?

Did the parties have full opportunity to litigate an issue?
On the merits:
o Default judgments We didnt litigate it!
o ANY judgment in favor of the claimant
o Involuntary dismissal under 41(b) unless it was based on jurisdiction, venue, or
19b indispensible parties
o If court says without prejudice
o Discovery sanctions

2. Was the same issue litigated and determined in case #1?

3. Was that issue essential to the judgment in case #1?

If we didnt have that issue, would we have the same result? (Hoult)
o General rule on issue preclusion: When an issue of fact or law is actually litigated and
determined by a valid and final judgment, and the determination is essential to the judgment,
the determination is conclusive in a subsequent action between the parties, whether on the
same or a different claim (Restatement (Second) of Judgments, Section 27)

4. By whom is collateral estoppel asserted?

Mutuality: the judgment in case #1 can only be used by someone in case #1 not
required by due process and is eroding
Nonmutual collateral estoppel: the party using collateral estoppel in case #2 was not a
party in case #1
o Nonmutual defensive collateral estoppel: the defendant in case #2 was not a
party in case #1
HYPO: Barney is driving Aunt Bs car and he has a collision with Andy.
Aunt B is vicariously liable for Barneys acts.
#1 A B and B wins
#2 A AB AB says collateral estoppel. Yes, defensive.
Most states allow
o Nonmutual offensive collateral estoppel: P tries to estopp
Court probably wont permit if she was not in #1 (Parklane)

5. Against whom is collateral estoppel being used?

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 1. In operation

Case Issue Takeaway

David P. The issue is Daughter alleged that Dad sexually assaulted her and sued him for torts
Hoult v. whether and damages in #1. After daughter wrote articles, dad filed defamation
Jennifer Plaintiffs #2. Daughter moved to dismiss for collateral estoppel stating that the
Hoult (1998) defamation issue of whether P raped her was determined in the prior suit
action should A D is not barred from using collateral estoppel just b/c issue was
be dismissed fact not an explicity finding by the jury or fact-finder
under An issue may be decided for the purposes of asserting collateral
collateral estoppel even if not explicitly decided for it may have constituted,
estoppel. logically or practically a necessary component of the decision
reached
o If the issue had to be resolved a certain way to make a final
judgement on the claim, then the issue is determined for
collateral estoppel purposes

Takeaways from class: What you need for issue preclusion a final
judgment; and issue has to be essential to the judgment
Essential elements: court looks to what was actually argued, the
testimony of the P, and if issue was essential to the finding
Not claim preclusion here because the argument wasnt coming
from the same transaction & it couldnt be litigated earlier
BUT, issue preclusion

An issue is considered decided under collateral estoppel if the issue is

an integral part of a prior final judgment.

2. Essential to the Judgment

Case Issue Takeaway

Jarosz v. The issue is Palmer represented the three partners in defending a wrongful
Palmer whether the termination and breach of fiduciary duty suit filed by Jarosz, #1. Jarosz
(2002) prior court moved to disqualify Palmer from representing the partner, but the judge
judgment dismissed the motion. Plaintiff then brought this action against Palmer
denying for legal malpractice, breach of fiduciary duties and other state statutes
Plaintiffs in #2.. Plaintiff argued that issue preclusion would not apply because
motion to there was no evidentiary hearing, and that the issue was not central to
dismiss the prior judgment.
Defendant as
counsel now The court held that the issue was not precluded because the issue of
precludes whether there was an attorney-client privilege between Plaintiff and
Plaintiff from Defendant was not central to the prior case. The issue was actually
bring the litigated in the prior case (there is no requirement for an evidentiary
current action hearing or a full trial) but it was not essential to determine whether the
of legal attorney-client privilege existed to decide the claims between Plaintiff
malpractice and his former partners. All other elements were present, just not this
against one.

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 Defendant. Takeaway from class:
An issue in #1 has no preclusive effect on #2 if burdens are on
different parties. Here, Ps burden was same in both cases
Essential to the judgment: If the issue wasnt essential to the
judgment, issue preclusion doesnt apply

For the doctrine of collateral estoppel to apply, an issue must have not
only been actually litigated and determined by a final judgment, but the
final judgment must have been essential to the central merits of the
case.

3. Nonmutual Issue Preclusion

Case Issue Takeaway

Parklane Whether a party who SEC brings action against the Parklane for the use of a
Hosiery, Co. has had issues of fact misleading and false proxy statement SEC wins, #1. Shore
v. Shore adjudicated adversely (P)s suit comes up next against Parklane, they sought to
to it in an equitable collaterally estopp D from relitigating the issue of the use of the
action may be proxy statements #2
collaterally estopped Collateral estoppel should not be applied if the D has not
from relitigating the have a full fair opportunity to litigate the issue in a previous
same issues before a case
jury in a subsequent If a P seeks to use offensive nonmutual collateral estoppel
legal action brought against a D, then the courts should not allow them to do so if
against it by a new they (Ps) could have easily joined the first lawsuit OR where
party. applying collateral estoppel would be unfair to the D (See
Factors 2-4)
The issue the court had The courts should consider 4 factors in deciding whether to
to decide is whether a allows Ps offensive collateral estoppel:
litigant who was not a o 1) Could the party trying to assert Collateral Estoppel
party to a prior have intervened in the earlier suit?
judgment may o 2) Did defendant have incentive to litigate the first
nevertheless use that action i.e. were the stakes so reasonably low that D
judgment offensively to would have reason to not put on a vigorous defense?
prevent a defendant o 3) Are there multiple, prior inconsistent judgments
from relitigating issues and thus D should be allowed to litigate to bring final
resolved in the earlier resolution to the matter?
proceeding. o 4) Are there any procedural opportunities available to
defendant in the second suit that were not available in
the first suit?

Offensive v. defensive collateral estoppel:

Offensive: (inefficient) want to discourage the wait
and see" strategy
Defensive: (promotes efficiency)

A plaintiff should be allowed to employ offensive collateral

estoppel unless it would have been easy for the plaintiff to have
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 joined in the earlier action, or collateral estoppel would be unfair
given the circumstances.
Federated Does res judicata bar Government brought an antitrust action against Federated
Department relitigation of an Department Stores (#1). SEC won. Five of seven defendants
Stores, Inc. unappelaed adverse appealed. Moitie and Brown decided not to, but rather, to litigate
v. Moitie judgment where other in state court. Federated Department Stores concluded that the
plaintiffs in similar doctrine of res judicata barred relitigation of an unappealed
actions against adverse judgment.
common defendants Res Judicata bars relitigation of adverse judgment where
successfully appealed plaintiffs in similar actions against common defendants
the judgments against successfully appealed the judgments against them.
them? Cant relitigate issues that were or could have been raised
in that action.
Brennans Dissent: Plaintiff should be able to chose state court
and litigate there if she wants to

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XIII. Exam Notes
Fake firms : dewey valentine and dewey and lebouf
Notice often comes up with software downloads
Do not assume too much
Give good rule statements
Apply rules to particular facts (and milk it)
Cheat sheet on the parties and diagram
o Chart if the parties in the second claim are the same as the first

Once personal and subject matter jurisdiction are figured out, the administrative concept of venue
further restricts the location of the lawsuit.
Within the federal system, venue determines the appropriate judicial district(s) in which the case
may be filed
State venue statutes assign cases to particular counties based on a variety of similar criteria

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