I.

II.

III.

IV.

Overview a. Rule 1 resolve disputes in a speedy, just, efficient manner b. Trying cases on their merits; no foreclosure on procedural missteps c. U.S. Const. Art. III PJ a. In Personam Jurisdiction forum has power over the person i. Constitutional (Amdt XIV: due process clause) 1. Pennoyer v. Neff traditional bases of PJ a. The D is served with process in the forum state (presence theory state has territorial jx) b. The Ds agent is served with process in the state. c. The D is domiciled in the state. d. The D consents (often expressly) 2. Shoe the non-resident D has minimum contacts in the forum, and it would not offend traditional notions of fair play and substantial justice to say to the non-resident D: you must stand and defend in this court a. D should understand that its voluntary acts in-state impact the state, and that those acts may lead to lawsuits. (voluntary in-state acts = basis for jx) 3. McGee upholding jx over claim arising out of a single contract solicited in the state (single act=specific jx) 4. Hanson SMJ a. FQ b. Diversity i. Amount in controversy + intent to remain indefinitely Pleading under the Federal Rules a. The complaint i. Meet Rule 8 reqs + put court and D on notice ii. Judge takes all inferences in pleaders favor 1. Conley no set of facts standard 2. Twombly must allege enough facts to plausibly set forth a claim to relief 3. Iqbal 2 part test iii. Pleading inconsistently is permissible under 8(d)(3) P can assert as many alt. versions of a claim as P has evidence to support regardless of consistency (remember idea = notice) b. Ds response 8(b) requires that D admit or deny each allegation i. Answer for each allegation in the complaint you must:

V.

Admit (takes issue out of contention) Deny Say you lack sufficient info (treated as a denial) Allegations not denied are admitted - 8(b)(6) Raise affirmative defenses insert new facts, not pleaded by P, that avoid recovery anyway ii. Pre-answer motion 1. Rule 11 limits on legal allegations a. Signature requirement, certifying that you made an inquiry reasonable under the circumstances (legal research + fact investigation) i. No improper purpose ii. Legal contentions have merit or are warranted by nonfrivolous argument (something colorable) to change the law. 1. Ex: Recently adjudicated on merits, never appealed, trial court followed mandatory precedent: must lose/appeal/argue 2. Duty of candor iii. Fact contentions (or affirmative Ds) have evidentiary support (or, if specifically so identified, likely will have evidentiary support after reasonable opportunity for further investigation or discovery) 1. Continuing certification requirement cannot later advocate those contentions if proven false after some discovery a. you need not withdraw the allegation, but you may not attempt to prove it at trial b. Twombly caveat Twombly requires factual support for pleading that demonstrates Ps allegations plausibly set forth a claim for relief; while Rule 11(b)(3) allows P to sue w/o knowing facts necessary to establish a claim, so long as she has reason to believe she will develop them. What if Ps in Twombly pleaded conspiracy on information and belief? iv. Fact denials are legitimate (warranted on the evidence) b. Sanctions i. c. Safe harbor

1. 2. 3. 4. 5.

VI.

Amending the Pleadings Under Rule 15 a. 15(a)(1) authorizes a party to amend complaint once as a matter of course before a responsive pleading is served, if a responsive pleading is permitted. (matter of course = w/o leave of court or consent of adverse party) i. *watch for a D who makes a pre-answer motion: no answer (motions are not pleadings (7(a) = pleadings; 7(b) = motions) b. If youre the D, and your answer closes the pleadings (i.e., if no responsive pleading is allowed) you may amend once as a matter of course within 20 days after serving it. c. 15(a)(2) leave to amend should be freely given when justice so requires VII. Joinder - (always a way to raise SMJ) a. P may join any claim - Rule 18(a) b. Counterclaim Rule 13 claim against opposing party (ex: D back to P) i. Compulsory counterclaim 13(a)(1) arises from the same T/O 1. Jones sample: Susans counterclaim against Bill is not compulsory under Rule 13(a) b/c it arises from a different T/O (Bills theft of Susans Civpro notes) than that which gave rise to Bills claim against Susan (the automobile accident allegedly caused by Susan). 2. Remember to analyze SMJ ii. Permissive counterclaim 13(b)(1) does not arise from same T/O; does not have to be asserted but may be. VIII. Discovery a. Scope of Discovery- is broad and liberal but not unlimited. Investigate the facts, define and clarify issues, equal access to all relevant information. i. Relevance You can discover any nonprivileged matter that is relevant to a claim or defense (scope limited by pleadings). 1. Relevant=reasonably calculated to lead to discovery of admissible ev 2. Court has power to issue protective orders to limit discovery that is cumulative; not relevant; obtainable another way; costs of production outweighs likely value of info (ex: unduly long deposition, unduly extensive document discovery) ii. Privileged matter is not discoverable 1. Attorney-client privilege

a. Encourage disclosure of information, parties to seek counsel b. Facts not protected just b/c they were communicated to lawyer in privileged convo. c. ABA Model Rules lawyer may not offer evidence she knows to be false d. Privileged must be asserted. (expressly claim privilege + describe nature of documents/comm./ tangible things w/o revealing info - 26(b)(5) e. Purpose of seeking legal advice - Privilege does not apply to relevant documents created before representation and later sent to attorney in course of representation 2. Upjohn a. Waiver i. Disclosure in federal proceeding ii. Inadvertent disclosure iii. Work-product trial preparation materials are not discoverable (avoid free-rider problem + protect adversary system: do not want attorneys discouraged from taking notes or having their notes used against them in evidence) 1. (1) documents or tangible things (2) prepared by or for a party or a partys representative (3) in anticipation of litigation a. Anticipation of litigation i. subjective anticipation vs. ordinary business purpose ii. subjective anticipation reasonable? 2. To overcome work-product protection, party must show (1) substantial need for materials + (2) inability to get substantial equivalent (3) without undue hardship 3. Higher protection for mental impressions (owp) 4. A party (or nonparty) to lawsuit may obtain her own previous statement 26(b)(3) 5. Facts unearthed during trial preparation (e.g., names of witnesses) are not protected by wp 6. Hickman protection of attorney work-product (memos not privileged b/c witnesses not clients) iv. Privacy

IX.

1. Costs outweigh benefits 26(b)(2) 2. Annoying, embarrassing, oppressive 26(c)(1) b. Discovery Tools i. Automatic disclosures 1. Initial disclosures (may use to support claim or defense) a. Need only reveal supporting evidence, not adverse 2. Must meet and confer about disclosures 26(f) 3. WP need not be disclosed, but you should describe nature of WP in disclosure response and object to disclosing it based on WP protection ii. Depositions sworn, oral testimony iii. Interrogatories 1. Contention interrogatories - You may ask party to give factual support (why do you think A is liable?) 2. Corporations must give info as is available to the party after reasonable inquiry (not just personal knowledge of individual) iv. Request to produce documents v. Medical Examination vi. Request for Admission Pretrial Adjudication a. 12(b)(6) motion to dismiss: Tests complaints legal sufficiency i. If everything were true, would P win? (little bit tougher with Twombly/Iqbal) 1. Fails to outline all key elements (A+B+D; but no C) a. Sloppy pleading, grant w/o prejudice 2. Twombly/Iqbal facts to show a plausible claim b. Summary Judgment no genuine dispute of material fact, and you are entitled to judgment as a matter of law i. D carries initial responsibility to inform court basis of motion 1. Adickes D, even without trial burden of persuasion, must foreclose all possible inferences that P can win 2. Celotex Aligned trial burden with burden at summary judgment. If P bears burden of persuasion at trial, D can point out evidentiary gaps in the record where P has no evidentiary support; D need not show affirmative evidence to disprove Ps case ii. Court looks at admissible evidence 1. Is there some ev. on both sides? (if yesMust go to trial)

2. Pleadings are not evidence (not signed under penalty of perjury) X. The Trier and the Trial a. Right to a Jury Trial (1) must be asked for, and (2) must be a case of sort which the parties are entitled to a jury i. Amendment VII preserves (not creates) the right to a jury trial, but only at law and not at equity 1. Applies only in federal court, and only in civil cases. Does not apply in state court 2. Historical test jury trial today depends on whether we would have had one in 1791 when 7th admt. was ratified. a. 2-part test: i. Nature of claim: Is the claim analogous to a claim that existed in 1791? ii. Nature of remedy: legal or equitable? (law=damages/money; equity=injunction) iii. Compare to 1791; would a jury hear this claim? b. Ex: Spec. perf. is an equitable remedy which would have been heard by a chancellor in 1791 no right to trial by jury c. Breach of K is a damages claim (legal) which would have been heard by a jury in 1791 right preserved. ii. Rule 38 right is preserved but waived if not demanded iii. Rule 39 discretionary court order jury trial iv. Recusal b. Trial Motions i. JMOL - Directed Verdict 50(a)(1) granted if P has failed to meet the burden of production on any element of her claim. 1. To get to the jury, P must show the judge enough evidence on each element that a jury, acting rationally on that evidence, could find in her favor. (P bears the burden of production) a. Then P must show the jury she has met the burden of persuasion (to a preponderance of the ev. in civil cases)

b. A jury verdict for P without proof of [negligence] would be based on legally insufficient evidence, and thus is not jury-worthy. 2. Judge should not weigh witness credibility or consider the weight of evidence assume jury will believe Ps witnesses 3. Judge should take case in light most favorable to P, and then ask whether there is adequate evidence to support verdict for P. a. Two inferences, one supporting recovery and one against, judge make inference that favors the P. (It is the jurys job to decide which inference to make) i. Circumstantial evidence (requires inference of one fact from proof of others) vs. direct testimony of one witness b. Reid directed verdict granted b/c no rational jury could have inferred cow came through broken fence (three equally likely inferences, no evidence from which a rational jury could infer railroad negligence) c. Penn relative credibility assessment? or bainbridges testimony is equivocal and case should be dismissed? ii. JNOV 50(b) no rational jury could have found in Xs favor 1. Court denied JMOL and let case go to jury, but jury returns irrational verdict 2. Must have moved for JMOL at trial or no RJMOL iii. New Trial Rule 59(a)(1) 1. (1) procedural error, (2) verdict against great weight of ev 2. Justification 3. Conditional new trial c. Jury Selection inclusiveness i. 1861: random selection ii. 1862: no exclusion based on race, color, religion, econ. status iii. Voir dire 1. Preemptory challenges XI. Appeal abuse of discretion standard for app. review a. Lind XII. Former Adjudication

a. Claim preclusion b. Issue preclusion Strategy Rule11

Rule 56 Rule 26