Pleading

1. Notice/Service of Process a. R.4(e): an individualother than a minor, an incompetent, or a person whose waiver has been filedmay be served in a judicial district of the U.S. by: i. (1) following state law where district is located or where service is made ii. (2) methods by which service is made i. Personal ii. Substitute iii. Agent (mainly for corporations) b. Mullane: "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections." Process which is a mere gesture is not due process. c. R.4(c) service requirements i. Summons must be served with copy of complaint ii. Served by someone 18 yrs old and not a party to the action d. R.4(m) defendant must be served within 120 days from when complaint filed e. R.4(d) waiver of service i. Form 5 mailed to defendant. Defendant mails back Form 6. ii. Cannot waive service: U.S. and other governments, infants, incompetents iii. If waive service, you give up the right to these defenses: improper process, improper service of process iv. Benefits of waiver: gives defendant longer to respond f. R.4(f) serving individual in foreign country i. Dee-K court held that notice by mail to a foreign defendant was satisfactory according to R.4(f)(2)(C)(ii). g. R.4(g) serving minor/incompetent h. R.4(h) serving corporation i. R.4(i) serving U.S. j. R.4(j) serving Foreign, State, or Local Government k. R.4(l) Proving Service (1) Affidavit Required (Return of Service) 2. Summons a. Form requirements i. R.4(a)(1) i. Name of court and parties ii. Addressed to defendant iii. Name and address of plaintiffs attorney/pro se litigant iv. Date by which defendant must appear v. Warning of default judgment against defendant for relief demanded if defendant fails to appear 3. Complaint a. R.10(a) Caption

b. c. d.

e.

i. Courts name, title, file number, and a R.7(a) designation. The title of the complaint must name all the parties; the title of other pleadings, after naming the first party on each side, may refer generally to other parties. R.10(b): numbered paragraphs, separate statements (in order to avoid problems that might arise when answering) See Zielinski. R.11(a) signature R.11(b) reasonable investigation (4 point checklist before filing suit, Stop and Think) i. By presenting to the court a pleading, written motion, or other paperan attorneycertifies that to the best of the persons knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: No harassment/not frivolous Claims are warranted by existing law Factual contentions have evidentiary support Denials are warranted on evidence ii. See Sanctions below for failing to follow these rules R.8 requirements i. (a)(1) jurisdictional statement (introductory statement) ii. (a)(3) demand/prayer for relief iii. (a)(2) short and plain statement has been radically changed by: i. Twombly: introduced the plausibility standard. The found that in an antitrust case, it wasnt enough to simply say they conspired, but the Complaint should state enough FACTS to state a claim to relief that is plausible on its face. The court found the complaint to be conceivable, but not plausible, which was not good enough. But it was unclear whether this applied only to antitrust cases. The Court in Twombly criticized the old rule by saying: The no set of facts language in Conley leads one to believe that as long as they make a claim that could theoretically be proven, that is adequate pleading. But the objective should not be to merely get the Complaint to survive past a motion to dismiss, it is to inform the defendant of the claim that is being made. ii. Iqbal: Held that the plausibility standard applies to all cases. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for 2

more than a mere possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'" In other words, a complaint must be more than conceivableit must be plausible on its face. Moreover, the Court in Iqbal highlighted that pleadings do not comply with the pleading requirements where there are simply legal conclusions: While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. How is the plaintiff going to know those facts before discovery? Wildermuth iv. (d)(2)-(3): Plaintiff can make inconsistent claims if one of them is sufficient. 4. Responding to the complaint. Defendant has 4 options after being served: (a) pre answer motion, (b) affirmative defenses/answer, (c) dont respond, or (d) specially appear. a. Pre-answer motion i. R.12(b) motions: (R.12(g), all need to be put in ONE motion) i. Lack of subject matter jurisdiction ii. Lack of personal jurisdiction iii. Improper venue iv. Insufficient process v. Insufficient service of process vi. Failure to state a claim upon which relief can be granted Use when plaintiff fails to plead complete facts Use when plaintiff fails to plead an actionable legal claim (even if all facts are pleaded, and all claims are true) (i.e. I dont like) This is a judgment on the merits. If plaintiff cant provide a valid claim after being allowed leave to amend, she doesnt have a valid legal claim at all. vii. Failure to join a party under R.19 ii. R.12(h) Waiving and Preserving Defenses (DONT FORGET 12(h)!) i. Least favored: 12(b)(2)-(5) must assert at first opportunity. ii. Kinda favored: 12(b)(6)-(7) can assert anytime up until judgment. iii. Most favored: 12(b)(1) court can impose at any time. iii. R.12(c): Motion for Judgment on the Pleadings 3

This occurs when there IS a statement in the complaint upon which relief can be granted, so a 12(b)(6) wouldnt be adequate, and there are no disputed facts on the pleadings. If one moves for 12(c), there isn't any need for discovery. iv. R.12(e) Motion for a More Definite Statement i. Wildermuth thinks there will be more of this motion after Iqbal. v. R.12(f) Motion to Strike i. If something in the pleading is redundant...impertinent or scandalous. vi. If court denies motion, defendant must file a responsive pleading (answer) within 14 days after notice of the courts denial. (R.12(a)(4)(A)) b. Answer i. Either admit, deny (R.8(b)(1)(B)), or dont know (R.8(b)(5)) i. Admit Partial denial R.8(b)(4) must admit the part that is true ii. Deny Deny liability only where it is appropriate Zielinski "compliance with the above-mentioned rule required that defendant file a MORE SPECIFIC answer than a general denial." Must respond to substance (R.8(b)(2)) iii. Dont know. I dont have enough information, so I deny on that basis. ii. Once pre answer motions have been resolved, defendant can move on to the affirmative defenses and the answer. R.8(b)(1) a party must (A) state in short and plain terms its defenses to each claim asserted against it; and (B) admit or deny the allegations. R.9 requires specificity, but Iqbal and Twombly have virtually eliminated the difference that used to exist between R.8 and R.9. Wildermuth thinks that it would have been better for Twombly to have revised R.9 to relate specifically to antitrust cases. iii. Timing. R.12(a)(1)(A): defendant must serve an answer within 21 days after being served with summons and complaint; or, if waived service, within 60 days. i. R.12(a)(3): If U.S. is the defendant, within 60 days iv. Assert defenses. i. R.8(c)(1). These must be included in answer or you lose them, just like pre answer motions. (these are technically part of the answer) ii. 8(d) defendant can assert two or more defenses, even if inconsistent. Specificity, R.9. (Stradford: see iv. 3 below) v. Be Specific. R.9 4

i.

i.

Stradford. Counterclaim was granted leave to be amended because it was unclear from the FACE of the counterclaims whether the defendants were asserting that the revised claim was overinflated, whether the flooding never occurred, or that the damage occurred but not while plaintiff was under insurance coverage. R.9(b) requires one making an accusation of fraud to state with particularity the circumstances constituting fraud. Further, it requires one to "state the time, place, and nature of the misrepresentations." ii. Plaintiff must respond to the counterclaim. R.7(a). c. Dont respond i. Failure to respond will result in a default judgment. R.55(a). This is risky because if defendant loses on the defenses, she cannot challenge on the merits. i. Peralta is an exception. An entry of default judgment cannot stand where notice as required by the Due Process Clause as well as the relevant state or federal law is not satisfied. ii. A court may not prohibit the reopening of a default judgment simply because defendant has no meritorious defenses--the court must allow reopening when the defendant shows "good cause" for not responding, even if the defendant doesnt have a meritorious defense. What is good cause? Illness, coma. It will sometimes depend, but the court is usually lenient in reopening cases for default judgment. iii. Milliken collateral attack: If New Yorker sues Californian in a New York court, the Californian can choose to not answer the complaint. The New York court may then enter default judgment, and send that default judgment to California court. The Californian will then be notified, and can challenge the New York court's jurisdiction over her. d. Specially appear i. Defendant is allowed to appear before the court at the beginning of the action for the sole purpose of challenging the courts power to exercise pj over her. The defendant must be careful to not raise any other issue, or the court may rule that she has waived her defense of not jurisdiction. ii. More modern way to challenge jurisdiction is a 12(b)(2) motion for lack of pj. This way, the defendant can still assert other defenses that go to the merits. But courts following older way may assert jurisdiction if you refer to the merits. 5. Amendments to the Pleadings. a. R.15(a)(1). A party may amend its pleading once as a matter of course within (A) 21 days after serving it or, (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a 5

responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. (This reflects changes made by the 2009 Time Amendments). b. R.15(a)(2): If after 21 days, a party may amend its pleadings only with the opposing partys written consent or the courts leave. The court should freely give leave when justice so requires. i. Response to amended pleading must be made within 14 days c. R.15(b). The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that partys action or defense on the merits. i. In Beeck, the plaintiff was injured on a waterslide, which he asserted to be that of defendant Aquaslides. The defendant admitted it was their slide in their answer, but 6 months later, denied manufacture of the slide after they had discovered that the waterslide was a counterfeit to a slide they manufactured. Beeck argued that the allowance of the amendment prejudiced him because the statute of limitations would run within just a short time after the amendment was granted. But the court explained that parties are allowed to amend unless there is prejudice to other party, and prejudice couldnt be shown because there was no bad faith. Aquaslide had not acted in bad faith because they (1) did not influence insurance companies investigations, and (2) they didnt attempt to deceive in their pleadings. ii. PPI in Zielinski acted in bad faith by trying to swindle the other party in their answer, so their amendment wasnt allowed. d. R.15(c)(1).An amendment to a pleading RELATES BACK to the date of the original pleading when: i. R.15(c)(1)(A): the law that provides the applicable statute of limitations allows relation back ii. R.15(c)(1)(B): the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set outin the original pleading; or i. Moore: Tried to amend from specific failure of informed consent to malpractice negligence against doctor. The court said there is nothing in Moore's original complaint which makes reference to any acts of alleged negligence by Dr. Baker either during or after surgery. Therefore, the proposed amendment was NOT allowed. LESSON: dont concede facts in your complaint. You may foreclose future amendments. (Moore had admitted that her doctor acted reasonably.) ii. Bonerb: Amended from general negligently maintained basketball court to more specific counseling malpractice. The court allowed the amendment. The original complaint advised defendant of the same transaction or occurrence giving rise to these different theories of negligence. These allegations not only gave defendant sufficient notice of the general facts, but also 6

alerted defendant to the possibility of a claim based on negligent performance of professional duties. Courts tend to allow amendments that assert claims that are more specific than the original claim rather than allowing amendments that assert broader claims than the original. iii. R.15(c)(1)(C): the amendment changes the party or the naming of the party against whom a claim is asserted, if within [120 days], the party to be brought in by amendment i. received such notice of the action that it will not be prejudiced in defending on the merits; and ii. knew or should have known that the action would have been brought against it, but for a mistake concerning the proper partys identity. e. Determining amendment allowance: after you go through each of the above clauses, ask (1) did the misidentified party know who the correct party was? (2) did the misidentified party make any effort to notify anyone about the mistake? (3) how far along has the case advanced? (4) how this analysis might vary for each of the proposed amendments, and (5) would the proposed amendment satisfy smj? 6. Sanctions a. R.11(b) Stop and think before filing your complaint. (1) dont harass, (2) get the law right, (3) get the facts right, (4) get the answer right. b. R.11(c)(2) i. Serve motion for sanctions to other party first (Dont serve court first). ii. Other party has 21 days to amend /voluntarily dismiss. iii. If no action from other party, file with court. c. Wright: Plaintiff sexually harassed. Defendants counsel moved to dismiss for failure to state a claim. Since the defendants submitted to the court a written motion asserting frivolous legal contentions, they were liable for sanctions. No competent lawyer, after reasonable inquiry, would have concluded that [there was failure to state a claim]. d. Christian v. Mattell: no sanctions for attorneys bad behavior in depositions and oral arguments. Rule 11 sanctions are limited to papers signed in violation of the rule. Conduct in depositions, discovery meetings of counsel, oral representations at hearings, and behavior in prior proceedings do not fall within the ambit of Rule 11."

Subject Matter Jurisdiction

1. Court can establish smj by either 1331 or 1332. 2. Federal Q jurisdiction (1331). Arising under? a. L&N RR v. Mottley Well Pleaded Complaint Rule: The federal claim must appear as part of a well-pleaded complaint. i. The constitution (Article III) allows a federal court to hear a case which involves any federal ingredient/issue. But 1331 will not allow an action in federal court if the pleaded claims dont arise specifically under an issue of federal law. If the asserted federal claim is made in response to an anticipated defense from 7

defendant, that means the asserted federal claim does not form the basis of the plaintiffs claim, and therefore cannot be the basis for jurisdiction under 1331. 3. Diversity jurisdiction (1332). For diversity jurisdiction, the court must find both (a) 1332(a) (amount in controversy), and (b) 1332(a)(1)-(4) (complete diversity: no party on one side of the v is from the same state as another party on the other side of the v). CORPORATIONS (1332(c)(1)). Citizenship may be both inc AND ppb LEGAL REPRESENTATIVE (1332(c)(2)). shall be a citizen only of the same state a. Amount in Controversy (1332(a)) $75,000 exclusive of interest and costs i. Allapattah allows joined plaintiffs who are diverse to bring suit so long as one satisfies the amount in controversy; permitted by 1367(a). This does NOT work for non-diverse plaintiffs. b. Complete Diversity (1332(a)(1)-(4)) i. 1332(a)(1). Citizens of different States Hawkins v. Masters FarmsDomicile Test: For purposes of determining whether diversity jurisdiction exists, a person is a citizen of the state in which he/she is domiciled. For adults, domicile is established by (1) PHYSICAL PRESENCE in a place in connection with a certain state of mind concerning ones (2) INTENT TO REMAIN there. ii. 1332(a)(2). Citizens of a state or subjects of a foreign state Works both ways. P-UT v D-mex or P-fra v D-IL REMEMBER: if you have foreigners on both sides of the v, you MUST also have diverse U.S. citizens on either side of the v. See Grupo. iii. 1332(a)(3). Citizens of different states and aliens as additional parties In Zenith, the question arose as to whether diversity of citizenship exists in light of the fact that the domestic citizens on both sides of the action are diverse, but in addition, there are Mexican parties on both sides of the action. The court held that the involvement of aliens from the same alien nation as additional parties on both sides of an action does not destroy diversity under 1332(a)(3). iv. 1332(a)(4). Didnt cover. c. 1332(a)(last paragraph). i. The amendment comes into play ONLY WHEN 1332(a)(1)-(4) would be satisfied in the first instance. For example, if a citizen of France sues a citizen of France in the U.S., that is not allowed into federal court because there is no diversity (France v. France doesnt involve a U.S. citizen). So you wouldnt even look to the amendment to determine if they were permanent residents or not, because in the first instance (France v. France) wouldnt be allowed under the Constitution. But if the citizen of France were to sue a citizen of the U.S., then we would look to the 8

amendment. That is because in the first instance, a citizen of the U.S. is involved. But that suit doesnt automatically go into federal court. (This is where the substance of the amendment is important). If that citizen of France were domiciled in Utah, for example, that would make them a permanent resident. So now, we would have a permanent resident of Utah suing another citizen of the U.S. We would then determine the state in which the U.S. citizen is domiciled to determine whether the case would go to a state or federal court, putting it under the same analysis as we would put any other diversity case. If the U.S. citizen is a citizen of Utah, the case would go to Utah state court. If the U.S. citizen is a citizen of another state, there would be diversity and would go to federal court The court in Saadeh explains how to treat this. The amendment to the statute (the permanent resident alien being considered a citizen of the state in which he is domiciled) may be perceived to be unconstitutional. The reason the amendment came about was because there were permanent residents suing actual citizens of the same state in federal court, claiming to be a foreign citizen when in actuality they were part of the state in which they lived. The amendment was aimed to stop that from happening, and lessen the number of suits in federal cases from this type of situation. But in this case it would appear that this very amendment augmented the amount of cases that would be allowed to file in federal court.

Personal Jurisdiction
1. Does the state have a long arm statute? a. R.4(k)(1)(A): fed ct will reach as far as state ct. b. If there is a long arm statute given, then the federal court may exercise pj only to the extent it could be exercised by the courts of the state in which the federal court sits. i. Long arm statutes must satisfy the requirements of the Due Process Clause, but do not have to go to the constitutional limit c. If not, then the federal court is only limited by the 5th amendment. (tell me that the state allows court to go to the constitutional limit and move on.) i. UTs long arm is enumerated. Until now, courts have found that it goes to the extent of the Constitution, but there could be an exceptionwhich is yet to be seen. No cases have come up yet. 2. Is it constitutional? a. General jurisdiction: exists when the defendants in-state contacts are so substantial that it would be fair to require her to defend any claim, even one completely unrelated to its in-state activities. i. Contacts analysis. 1. Intl Shoe Spectrum: a. No contact/Casual or isolated=no jurisdiction b. Single act = specific c. Continuous but limited = specific d. Substantial or pervasive = general 9

2. General jurisdiction exists when a defendant's contacts with the forum state are unrelated to the cause of action but are continuous and systematic or substantial or pervasive. 3. A court may exercise general jurisdiction only where continuous corporate operations within a state [are] thought so substantial and of such a nature as to justify suit against [defendant] on causes of action arising from dealings entirely distinct from those activities." Intl Shoe. ii. Reasonableness analysis. 1. Perkins v Benguet Mining Co. - Ohio court finds general jurisdiction over a defendant corporation whose mining properties were located in the Philippines because the companys president maintained an office in Ohio where he kept company files, corresponded, and wrote company checks. He also had two company checking accounts in Ohio. These contacts were considered continuous and systematic. 2. Helicopteros v Hall Texas court finds no general jurisdiction over a Peruvian helicopter company in a wrongful death action brought by estates of decedents. The company had had made purchases in Texas and had a fatal crash in Texas because mere purchases, even if occurring at regular intervals, are not enough to warrant a state's assertion of [general] jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions. b. Specific jurisdiction: In order to hale the defendant into court under specific personal jurisdiction, the cause of action at issue must arise from the defendant's direct contact with the forum state. (Staywell). There must be some contact in order to establish specific jurisdiction. Once the court finds minimum contacts, those must be balanced with traditional notions of fair play and substantial justice. (Milliken). i. Minimum contacts: 1. How did the defendant reach out to the forum state? Did defendant try to sell something in the forum state? Did defendant drive through the forum state? a. Burger King: purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. Purposeful availment/reaching out is the key. b. McGee: Insurer reached out to CA to profit thereby by delivering contract to CA, accepting payments from a CA resident, selling insurance in CA. Therefore, it is fair to haul insurer into CA court c. Hanson: Bank in DE not required to defend a suit in FL because the bank didnt reach out to FL. d. WWV: consumer's act of bringing the Audi into the forum state was NOT a sufficient basis upon which 10

to grant the forum state's jurisdiction over defendant. Defendant did nothing to purposefully avail themselves of the market in the forum state. e. Asahi: "When minimum contacts have been established, often the interests of the plaintiff and the forum in the exercise of jurisdiction will justify even the serious burdens placed on the alien defendant." (not in this case, however). Mere awareness that their product would go into the stream of commerce and could end up in the forum state is not enough purposeful availment or reaching out. ii. Relation of contacts to cause of action (arise out of): 1. Calder Effects Test: (Revell). (1) Contact must be directed at forum state. Not enough to coincidentally have contact, the contact must be directed at forum state. (2) Forum state must actually be affected. It must be shown that the defendant's advertisement/ solicitation, (or whatever the contact may have been) resulted in business/sales/harm/etc. in the forum. iii. Substantial justice and fair play: 1. Asahi: a court must consider: (1) burden on the defendant, (2) interests of the forum state, and (3) plaintiffs interest in obtaining relief. 2. Measure the contacts on a sliding scale with fairness. (One contact in the forum state that totally relates to the claim, or many contacts in the forum state that is totally unrelated to the claim would both probably subject the defendant to personal jurisdiction.) The court doesnt really protect sophisticated contracting parties, though. c. Tag jurisdiction: i. Burnham: Among the most firmly established principles of personal jurisdiction in American tradition is" that no matter how fleeting a visit in the state, if you are served in that state then the state has jurisdiction over you. d. Consent jurisdiction: i. Carnival: Forum selection clause OK because (1) no showing of bad faith (chosen forum doesnt discourage suits, party has contacts in chosen forum), and (2) the other party received notice and actually consented to jurisdiction in that forum. 1. Forum Selection clauses require litigants to sue in particular jurisdiction 2. Choice of Law clauses do not pick the forum; do stipulate which jurisdictions laws and rules will govern the suit. Burger King contained a choice of law clause, which specified that FL law would govern the agreement, but did not contain a forum selection clause.

Venue
1. 1391(a): A civil action wherein jurisdiction is founded only on diversity of citizenship maybe brought only in 11

2.

3. 4. 5.

a. (1) a judicial district in which and defendant resides, b. (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or c. only if (1) and (2) dont work, do (3) where any defendant is subject to pj 1391(b): A civil action wherein jurisdiction is not founded solely on diversity [same state citizens suing on fed Q] maybe brought only in a. (1) a judicial district in which and defendant resides, b. (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or c. only if (1) and (2) dont work, do (3) where any defendant may be found REMEMBER: it is NOT that (1) and (2) don't work for the district in which you want to bring suit; it is that (1) and (2) yield no district at all that will give you venue. 1391(c): defendant corporations are deemed to reside in the district in which it is subject to personal jurisdiction at the time the action is commenced. 1391(d): An alien may be sued in any district. a. Dee-K: plaintiff sued both American and foreign defendants in ED of VA. The court found that 1391(d) overrides any special venue statutes, so aliens (including foreign country aliens) can be sued in ED of VA, but proper venue for American defendants must be where they conduct business (i.e. where they can be found). Because the American defendants conducted their business in WD of VA, the court says that unless it can be shown that the American defendants conducted business in ED of VA, the suit will be transferred to WD of VA. i. Even though alien defendant can be sued in any district, this doesnt mean that he can be found there.

Supplemental Jurisdiction
1. Joinder Questions: a. What Rule governs it? i. Joinder of Parties 1. R.14(Impleader), R.19(Required Joinder of Parties), R.20(Permissive Joinder of Parties), R.24(Intervention). ii. Joinder of Claims 1. R.13(Compulsory/Permissive Counterclaims), R.18(Joinder of Claims) b. Is there jurisdiction if the claim/party is joined? i. Personal jurisdiction over an impleaded third party defendant will usually lie because in many circumstances the third party defendant will have been involved in the t/o that led to the original claim and thus subject to pj under the Int'l Shoe line of cases. If that isn't enough, R.4(k)(1)(B) gives an extra 100mile boost to the court's jurisdiction to parties joined under R.14 and R.19.

12

2. 1367(a): District courts have supplemental jurisdiction over claims that are so related to claims in the actionthat they form part of the same case or controversy under Article III of the U.S. Constitution. a. If a claim satisfies the t/o test, it likely satisfies same case or controversy. 3. 1367(b): If district courts jurisdiction is founded solely on 1332(diversity), the district court does not have supplemental jurisdiction over persons made parties under Rule 14, 19, 20, or 24or over claims by persons proposed to be joined as plaintiffs under R.19when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of 1332(diversity). a. R.14 Third Party Practice (i.e. Impleader) i. Impleader can ONLY be used in DERIVATIVE LIABILITY situations. The defendant seeking to implead another party who is or may be liablefor all or part of the claim against [the defendant],must claim, It was me, but he pays. He must not claim, It wasnt me, it was him. ii. R.14(a)(1). Defendant can bring a third party claim against a third party defendant within 14 days of being served. iii. R.14(a)(2). Third Party Defendants Claims and Defenses. Impleaded 3rd party: 1. (A) must assert any defense against the third party plaintiffs claim under R.12; 2. (B) must assert any counterclaim against the third party plaintiff under R.13(a), and may assert any counterclaim against he third party plaintiff under R.13(b) or any Crossclaim against another third party defendant under R.13(g) 3. (C) may assert against the plaintiff any defense that the third party plaintiff has to the plaintiffs claim 4. (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. iv. R.14(a)(3). Plaintiff may assert against the third party defendant any claim arising out of the t/o that is the subject matter of the plaintiffs claim against the third party plaintiff (so long as it complies with smj and pj) see Kroger. 1. In Price, Latco built a chicken house for the plaintiff. It was later discovered that the chicken house was defective. Price sued Latco, who filed a third party complaint against ITW, the manufacturer of the nails that were used in construction. ITW argued that the third party complaint was barred, but the court allowed the impleader on the grounds that Latco was holding ITW derivatively liable. (Latco accepted at least some liability for the faulty construction, but thought that ITW is or may be liable to [them] for all or part of the claim. R.14(a)(1). They say, It was us, but ITW pays. Rather than, It wasnt us.). 13

v.

vi. vii. b. R.19: i.

ii.

iii.

2. In Kroger, plaintiff brought action against a defendant who then impleaded a non diverse party into the suit. When the defendant/third party plaintiff was dropped from the suit, only non diverse parties remained. The court dismissed the suit because there was no fed Q and no diversity between the plaintiff and third party remaining parties. Substantive foundations for impleading: 1. In tortcontribution. The fellow wrongdoer contributes to the damages payable to the plaintiff 2. In contractindemnity. i.e. an agreement absolves landowner from damage caused by occupier. Benefit to defendant is further delay. Plaintiff doesnt necessarily like impleader for this reason (and further expense). Plaintiffs can use this to bring in other parties, when claim is asserted against the plaintiff. R.14(b). Required Joinder of Parties R.19(a)(1) A person who is subject to service of process and whose joinder will not deprive the court of subject matter jurisdiction must be joined as a party if (A) in that persons absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the persons absence may (i) impair or impede the persons ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. 1. E.g. cases involving an obligation on which two or more persons are either joint obligees or joint obligors, but not all joint obligees/obligors are joined as parties. In Temple, a patient brought suit against the doctor and hospital in a state action. The patient then brought another action in federal court against the manufacturer of the steel plate and screws that were surgically implanted in his back, which were defective. The manufacturer moved to order joinder of the doctor and the hospital in the federal case, but the appellate court didnt allow it, holding that the doctor and hospital were not indispensable parties to the federal action. R.19 doesnt require efficiency. In Helzberg, plaintiff contracted with shopping mall to be one of only a maximum of 2 other jewelry stores in the complex. However, the mall contracted with a fourth jewelry store, Lords, prompting this action. The mall moved to join Lords under R.19, contending that if Lords was not made a party, there existed a possibility of inconsistent outcomes in future litigation involving Lords. The court rejected that contention. 1. Wildermuth thinks this is the exact type of situation in which R.19 should be used, and the court blew it. Bringing Lords into the litigation mends the possible inconsistent obligation of honoring Helzbergs contract 14

c.

d.

e.

f.

(disallowing Lords into the mall) and Lords contract (allowing Lords into the mall) also. R.20 Permissive Joinder of Parties i. R.20(a)(1). Authorizes plaintiffs to sue together if (A) they assert claims arising out of the same transaction or occurrence (or series of t/o); and (B) any question of law or fact common to all plaintiffs will arise in the action. 1. R.20(a) usually interpreted broadly to allow plaintiff to craft his own action. 2. In Mosley, 10 black employees asserted race discrimination against GM. District court ordered the plaintiffs to bring their actions separately, but Circuit court overturned, holding that R.20(a)s purpose was to promote expeditious adjudication. (1) The employees claims arise from the same t/o, and (2) the common question of law or fact was GMs discriminatory policy. ii. R.20(a)(2) is the same for defendants attempting to join other parties. R.24: Intervention i. Allows a party to barge their way into the suit when given the right to do so by statute or by interest relating to the property or transaction that is the subject of the action R.13: Counterclaim and Crossclaim i. R.13(a) Determining compulsory counterclaims. 1. R.13(a)(1)(A): arises our of the t/o that is the subject matter of the opposing partys claim. a. If the claim satisfies R.13(a), then it satisfies 1367(a) as well. 2. If dont raise compulsory claim at first chance, will lose it. See Martino. 3. In Plant, a debtor sued a lender for not disclosing terms adequately. The debtor didnt want the lender to be able to assert the counterclaim regarding the outstanding balance, but the court said, We conclude that the obvious interrelationship of the claims and rights of the parties, coupled with the common factual basis of the claims, demonstrates a logical relationship between the claim and counterclaim under the [above] test. The outstanding balance counterclaim was found to be compulsory. ii. R.13(b). Permissive counterclaims are any claim that is not compulsory. iii. R.13(c). Relief sought in counterclaim doesnt need to defeat amount sought in original claim. iv. R.13(h). R.19 and R.20 govern the addition of a person as a party to a counterclaim or crossclaim. R.18: Joinder of Claims i. R.18(a). A party asserting a claim, counterclaim, Crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against the opposing party. 15

4. 1367(c): District court can decline to exercise supplemental jurisdiction if (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim(s) over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 5. R.42(b) and R.20(b). Ordering separate trials is possible if claims are not similar enough.

Discovery
1. Initial disclosures. R.26(a)(1)(A): A party must, without awaiting a discovery request, provide to the other parties: a. Individuals with information to support claims/defenses (ordinary fact witnesses) b. Tangible things that can be used to support claims/defenses (i.e. docs) c. Computation of damages/information about damages d. Insurance policy e. Expert witnesses identity (R.26(a)(2)(A), with written report (R.26(a) (2)(B)). i. Report must contiain (i) complete statement of all opinions considered by the expert, (ii) data or other information considered by the expert, (iii) any exhibits that will be used to summarize or support them, (iv) the experts qualifications, including a list of all publications authored in the previous ten years, (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert; and (vi) a statement of the compensation to be paid for the study and testimony in the case. 2. Disclosures (a-e) must be made within 14 days of discovery conference. R.26(a)(1)(C). (This reflects time computation changes). Expert witness report must be disclosed at least 90 days before the date set for trial. R.26(a)(2)(C). 3. Discovery Conference: R.26(f): a party may not seek discoverybefore [the conference]. a. Once conference occurs, parties may engage in: i. Depositions: R.27-R.32 ii. Interrogatories: R.33 1. No more than 25. R. 33(a)(1) 2. R.33(b): Answers and Objections iii. Requests for Admissions: R.36 iv. Requests for Tangible Things, etc. R. 34. (nonparty can be compelled to produce documents and tangible things or to permit an inspection. R.34(c)) b. The court rarely oversees discovery process because it is largely refereed by the parties. c. The American system is very generous about what can be discovered. d. Because discovery compels the parties to produce information on the merits, it can be made more clear whether there is any ground to the claim/defense. Discovery can also wear parties resources down. e. Most suits today end at discovery in either a settlement or a summary judgment. 16

4. Discoverable information. R.26(b)(2)(C): Parties may obtain discovery regarding any nonprivileged matter that is relevant to any partys claim or defense a. Must be RELEVANT i. American system is generous about what is considered relevant. It merely needs to be related to the claim/defense. ii. In Butler, the plaintiff was injured and treated by hospital. Defendant asked hospital for any and all documentswhich reflectthe total number of patientsinvolved in litigation[,] referred by attorneys[,]or contracts with attorneys. The court found this information not relevant and too specific, and only allowed a list of the number of patients treated. Wildermuth thinks the court got this wrong on the relevance question in light of the generous interpretation of the scope of relevancy in R.26; the current/past patient list could show some connection between attorneys and patients who are pursuing the same types of claims as the plaintiff. iii. In Steffan, the circuit court found that the basis of expulsion was that the plaintiff said he was gay, not that he said that he actually had engaged in gay activity. Therefore, by kicking him out on the basis that he said he was gay, the discoverable information was limited to only that fact--they can't discover whether he actually did engage in the gay conduct. So the court found that dismissing Steffans case because he refused to answer whether he engaged in gay activity was not relevant and not discoverable. b. Cannot be PRIVILEGED (privileges can be waived by, i.e., a party taking the stand). Important: the underlying facts communicated to the privileged party are not privileged. If someone discloses to their doctor that they raped someone, then that fact is not protected. The doctor cant tell anyone, but someone else can testify about the rape. i. Atty /Client. We want people to be forthright with their attorney. 1. Work product privilege. R.26(b)(3)(B). a. In Hickman, a tugboat sank and 5 people died. The boat owners attorney conducted interviews, which were notated and recorded. The plaintiffs counsel sought to demand discovery of those notations from the interviews, but the appellate court held that the attorneys work product is privilegedand therefore not discoverable. While an actual transcript of the conversation would be discoverable, private memoranda and personal recollections prepared or formed by an adverse party's counsel in the course of his legal duties is not discoverable.Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney. discovery is hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the 17

adversary. The other counsel could have gotten information from the same people who were interviewed by conducting interviews himself. 2. Redaction: the party from whom discovery is sought removes the privileged information such as mental impressions/other notes. ii. Dr. /Client. We want people to be able to be adequately treated by their doctor iii. Other (i.e. Spouse, News Reporter) iv. Non testifying experts. R.26(b)(4)(B). This is privileged information and is not discoverable unless exceptional circumstances exist. 1. Thompson: The court found that a psychologists report that was conducted 10 days after an employees termination was information that was discoverable because it would be impracticable for the other side to be able to get that informationit was unique information that couldnt be reproduced upon another examination. a. When the court said assuming arguendo that [the psychologists report is covered by R.26(b)(4), it would nevertheless be discoverable under the circumstances presented in this case., they are referring to the psychologist being an ordinary fact witness, whose information would not be privileged in any way. b. Wildermuth says that the court should have just said that the psychologist was an ordinary fact witness instead of implying by this statement that she was a non testifying expert. 2. Chiquita: Chiquita hired a shipper to deliver bananas to Germany. Part of the shipment was left behind, and the part that was delivered was in bad condition. Chiquita hired an expert to investigate (but not to testify at trial). The expert prepared a report of his findings. When the defendants counsel asked for those findings, the court denied the request, holding that Chiquitas investigator was indeed a non testifying expert and further, this was not an exceptional circumstance to which R.26(b)(4)(B) (2) refers. a. There is a distinction between witnesses whose information was obtained in the normal course of business (these are called ordinary fact witnesses) and witnesses who were hired to make an evaluation in connection with expected litigation (these are called experts). b. The court did allow the documents that were given to Chiquitas investigator during his investigation to be discoveredjust not the investigators own report. Information does not become exempt from

18

discovery merely because it is conveyed to a non testifying expert. c. Cannot be cumulative or duplicative (complete list in R.26(b)(2)(C)) i. In Davis, The plaintiff asked for discovery that was fairly broad, but limited their request by (1) time, (2) Chicago plant only, (3) race & national origin claims, (4) non administrative, non clerical--employees who were doing jobs similar to plaintiff's jobs. Therefore, the court held that because plaintiffs asked for information that was reasonably calculated to get admissible evidence, and the request was narrowly tailored to the same claim the plaintiffs are making, the information was discoverable, even though the request was broad. 5. E-Discovery a. Substantive metadata: changes in the document b. System metadata: author, date of creation, etc c. Embedded metadata: formulas, numbers and other data like sound files, hyperlinks d. In Aguilar, the parties did not discuss the discovery of metadata at discovery conference or any other time during discovery. When the plaintiff sought to discover metadata, the court explained that if a party desires metadata, they must request it and talk about it at the discovery conference. (There is no hard and fast rule. The judge compares the benefit to the burden, then decides what is fair). 6. Spoilation a. In Silvestri v. GM, plaintiff crashed while intoxicated. Auto reconstructionists looked at the vehicle and advised plaintiffs attorney that GM should look at the damaged car. Plaintiffs attorney disregarded the advice and had the car repaired. The court dismissed the case because neither the plaintiff nor his counsel took any steps to preserve the car for GMs inspection. The court noted that dismissal is the most extreme punishment, but in this case was appropriate because the spoilation of evidence meant an unfair disadvantage for GM. 7. Protective Orders. R.26(c) a. In Stalnaker, plaintiff claimed she was sexually harassed by defendants employee and wanted to discover whether other employees had engaged in any voluntary romantic or sexual activities with the alleged malefactor. Defendant employer wanted to protect those other employees from embarrassment, humiliation, and invasion of privacy. The court, in deciding whether to enter a protective order on behalf of those other employees, had to determine the relevancy of voluntary romantic or sexual conduct. The court held that the voluntary romantic or sexual conduct was only relevant to the extent that the alleged malefactor had encouraged, solicited, or influenced any employee of the defendant to engage or continue in such activities, and limited discovery to that encouragement and also stipulated that discovered information would not be released to third parties. i. R.26(c)(1)(A)-(H). List of reasons for courts issuing protective orders. 19

8. Physical or Mental Examinations. R.35 a. Physical or mental state of that person must actually be in controversy b. Party requesting exam must have good cause 9. Form Requirements/Sanctions a. Signing/failing to sign disclosures and discovery requests: R.26(g) b. Failure to make disclosures or to cooperate in discovery: R.37

Resolution without a Trial

1. Preclusion a. Res Judicata (claim preclusion) i. Same claim? 1. Some courts dismiss only exactly identical claims. On the other end of the spectrum, some courts dismiss any claim that arises out of the same transaction or occurrence as the first suit. The federal system has moved to a less narrow interpretation of the meaning of same, moving away from the strict requirement of an identical claim. 2. Frier. Plaintiff illegally parked cars in front of his house, which were towed by the City. After plaintiff filed suit in state court and lost, he filed a second suit in federal court for violation of due process. Federal court dismisses his complaint on failure to state a claim, reasoning that Friers second suit would lose due to claim preclusion in state court, so he loses under federal court as well. This is pursuant to 28 U.S.C. 1738, which requires a federal court to defer to the law of the jurisdiction which issued the first judgment. ii. Same parties? 1. Searle. Mother is awarded interest in a property as result of a divorce suit. The sons own the other interest and bring a second suit regarding that portion. The court holds that they are not precluded because they were not parties to the divorce action (and could not have been) and were not adequately represented by the dad (as their agent or in privity with them) in order to treat them as the same party. a. Examples of privity: successive owners of property, express agreement to be bound by a decision. 2. Taylor. Taylor lost a suit to obtain certain documents. Taylors friend brings a second suit to request the same documents. The court finds that it could be found that Taylor represented the interests of his friend in the first suit, thereby precluding the second suit, only if, at a minimum: (1) the interest of the nonparty and her representative are aligned, (2) either the party understood herself to be acting in a representative capacity or the original court took care to protect the interests of the non party, (3) there is notice of the original suit to the persons alleged to have been represented. 20

a. Supreme Court rejects virtual representation in Taylor and after iii. Final judgment? 1. Martino: first suit results in a consent judgment. Second suit that Martino wishes to bring arises from the same transaction or occurrence so it is precluded because a consent judgment is a final judgment. 2. R.13(a) bars any compulsory counterclaim that is not raised in a partys answer/amended answer in the first suit. iv. On the merits? 1. Gargallo: Gargallo owed Merril Lynch $17k. Merrill Lynch sued Gargallo under a federal claim in state court. The state court should have dismissed for lack of smj, but instead, they dismissed the case with prejudice as a sanction for Gargallos non compliance with discovery procedures. Gargallo then sues Merrill Lynch in federal court, where the court there finds no preclusion because the state court didnt have any authority to decide on the merits. 2. 12(b)(6) dismissals on the merits? In federal court yes. Some states yes, some states no. The rationale is that if the plaintiff couldnt raise a valid claim after leave to amend, she probably doesnt have a valid claim. b. Collateral Estoppel (issue preclusion) i. Same issue? 1. Must be decided by the same or higher burden of proof. BoP in criminal cases is 99%, while the BoP in civil cases is 50%. (OJ Simpson case retried in civil court because it is possible to lose on the 99% BoP in criminal case, but win on the 50% BoP in civil case) ii. An issue actually litigated and determined? 1. Illinois Central RR Husband (Jessie ) and wife (Bertha) are involved in an accident with train. In suit #1, Bertha brings claims for her personal injury and Jessie brings claims for loss of consortium. Bertha wins, Jessie loses. In suit #2, Jessie brings claims for his personal injuries. (Normally would be claim precluded, but in this state, they have narrower view of claim preclusion, so it was allowed). The court finds no issue preclusion because it could have been that Jessie lost in suit #1 because he was either contributorily negligent or did not adequately prove damages; because we dont know which ground, it is considered not actually litigated or determined. a. In re Sammy Daily: debtor engaged in a strategy of evasiveness that was prejudicial to plaintiffs and the court dismissed as a sanction, thus putting his debts under fraud and not eligible to be filed under bankruptcy. Daily tried to argue in his subsequent bankruptcy case that issues werent 21

actually litigated and decided, but the court found that they had been actually litigated and determined because of substantial participation in the previous litigation in which Daily was afforded a reasonable opportunity to defend himself on the merits but chose not to. b. So, in cases like default judgment, courts can sometimes find an exception to the actually litigated requirement. iii. An issue essential to the judgment? 1. If district court finds on either one of two or more grounds, RSJ says neither ground is essential; but any grounds that appellate court affirms is/are essential. iv. Between which parties? 1. Parklane loser precluded from relitigating an issue that was essential to the judgment, already litigated and determined in previous suit. 2. State Farm Fire v. Century Home too much variation in verdicts will not allow preclusion. If defendant wins, he must continue defending the issue if others sue him. Once the defendant loses, he is precluded from defending that issue any more. 2. Summary Judgment a. R.56(c). Summary judgment is granted if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. i. In Celotex, widow sued Celotex, a manufacturer of products containing asbestos, for the death of her husband. Celotex asked the widow to produce the name of anyone who could testify regarding the proximate cause of decedents death. When the widow didnt respond, Celotex moved for summary judgement. The Supreme Court held that R.56(c) mandates that a court grant a partys motion for summary judgment if, after adequate time for discovery, the other party fails to make a showing sufficient to establish the existence of an element essential to that partys case. Hence, if a party fails to show information during discovery, they are subject to summary judgment. Further, the burden of the moving party may be discharged by showingthat is, pointing out to the [court]that there is an absence of evidence to support the nonmoving partys case. ii. In Houchens, widow attempted to collect on deceaseds life insurance, but she couldnt prove conclusively that there was no accidental death. The insurance policy was only to be paid out if there was no accidental death. The court found there to be no genuine issue of material fact because the widow was unable to provide any inference of bizarre circumstances like other similar cases were able to do. Court held that R.56 mandates the entry of summary judgment, after adequate time for discovery 22

and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. iii. In Bias, a basketball player died of a drug overdose. The players agent promised that he would secure a life insurance policy, but neglected to do so before the player died. Parents of the player bring suit. Agent brought forth witnesses who testified they knew the player to be a drug user. Estate brought forth tests showing no drug use. The court found that because the Estate's generalized evidence that Bias was not a drug user did not contradict the more specific testimony of teammates who knew Bias well and had seen him use cocaine on particular occasions, there was no genuine issue as to the fact that Bias was a drug user. 1. Wildermuth disagrees with this outcome: There was a genuine issue of material fact and, therefore, it should have gone to a trial or to a jury. b. R.56(c)(1)(A): A party may move for summary judgment at any time until 30 days after the close of all discovery. (This is from the new Time Amendments). c. R.56(f): If a party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may (1)deny the motion, (2) order a continuance, or (3) issue any other just order. 3. Dismissal. R.41 a. Voluntary. R.41(a). Is not on the merits. Is dismissed without prejudice. b. Involuntary. R.41(b). Is on the merits-court is less sympathetic about reopening 4. Default Judgment. R.55 a. In Peralta, HMC sued Peralta over a $5600 unpaid bill. Peralta didnt answer the complaint. Default judgment entered against Peralta because he failed to plead or otherwise defend. Peraltas property was sold without Peraltas knowledge. Peralta then began a bill of review seeking to set aside the default judgment due to insufficient service of process (notice was served after the 90 day requirement under TX law). The Supreme Court invalidated the default judgment because there was no valid notice, and therefore, no opportunity to respond. This was a violation of due process. i. Rule as drafted in class: An entry of default judgment cannot stand where notice as required by the Due Process Clause as well as the relevant state or federal law is not satisfied. ii. The court must allow reopening when the defendant shows good cause (i.e. illness, coma) for not responding, even if the defendant does not have a meritorious defense. 5. FNC (inconvenient forum) a. In Piper, Scottish citizens were killed in a plane crash in Scotland. The plane was made in PA by Piper, so the administratrix brought suit in the U.S., in CA state court. Defendants first removed from state court 23

to federal court, then transferred to PA federal court, then moved for forum non conveniens. All motions were granted, and subsequently sustained by the Supreme Court, the reasoning being that when an alternative forum has jurisdiction to hear the case, and when trial in the chosen forum would establish oppressiveness and vexation to a defendant out of all proportion to plaintiffs convenience, or when the chosen forum is inappropriate because of considerations affecting the courts own administrative and legal problems, the court maydismiss the case. i. Key: used when plaintiffs are foreign and things happen in foreign place ii. Note this is not a lack of jurisdictionthis is dismissal for justice/convenience. iii. Balancing factors: ease of access to sources of proof; availability of compulsory processes for attendance of unwilling witnesses; cost of obtaining attendance of willing witnesses; possibility to view the premises, etc. 1. Parties can agree to move the case out of a congested forum 6. Transfer (Federal Federal) a. Can use 1404, 1406, OR 1631 to get a transfer (you MUST show another district that meets smj, pj, and venue requirements if requesting transfer, though): i. 1404. Transfer for convenience or justice to any federal district or division ii. 1406. If filed in wrong district/division, court may dismiss or transfer iii. 1631. If suit filed in a court that lacks jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed and it will be treated as if filed the day it was filed in the original court. 1. See Piper, above. 7. Removal (State Federal) a. 1441(b). If action is founded on a fed Q, action is removed from state court without regard to the citizenship or residence of the parties. [If no fed Q, can only remove of none of the defendants is a citizen of the state in which the action is brought.] i. In Broder, a customer of a cable company was not advised of lower rates and brought action in state court. The cable company removed the case to federal court on the ground that the customers state law contract claim raised a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities. b. 1441(c). Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 [fed Q] of this title is joined with one or more otherwise non-removable claims or 24

c. d.

e.

f.

g.

causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates. 1441(e)(2). District court remands back to state court for determination of damages unless it is more convenient for the parties to have damages determined in that district. 1441(f). The court to which a civil action is removed under this section is not precluded from hearing and determining any claim in such civil action because the State court from which civil action is removed did not have jurisdiction over that claim. Procedure for Removal: i. 1446(b). If defendant wants to remove, he must do so within 30 days of the service of summons. ii. 1446(c). Some state law claims may be removed to federal court if they are brought in conjunction with a fed Q. In Caterpillar, plaintiff from KY sued Caterpillar (DE, IL) and Whayne (KY, KY) in KY State Court for injuries sustained in a tractor accident. Later, plaintiff settled with Whayne, thus removing the KY-KY same state relationship, and making the case removable. Caterpillar removed one day before the 1 year deadline stipulated in 1446(b). The Supreme Court held that removal would stand despite plaintiffs contentions that Whaynes settlement with his insurance company wasnt completed until after the 1 year deadline to remove had passed. Therefore, Whayne was theoretically still a party. The court reasoned that because there was complete diversity by the time the case went to trial (i.e. Whayne had finished settlement deals by then), removal was valid. In Grupo, plaintiff corporation consisting of both American and Mexican citizens sued Grupo, a MX corporation. Because there were MX citizens on both sides of the litigation, Grupo argued that there was a lack of smj in federal courtMagistrate judge dismissed on those grounds. Appellate court overruled, holding that in light of Caterpillar, it is permissible to file without complete diversity as long as the diversity question is cleared up by the time trial date arrives. But the Supreme Court rejected the appellate courts reasoning. The SC distinguished Caterpillar by finding that Caterpillar dealt only with removal petition filings and was therefore justified in interpreting what 1441(a)s scope was, as it relates to removal and diversity jurisdiction. The Grupo court held that diversity must exist at the time of filing, and dismissed the case on those grounds. It was not sufficient to have diversity eventually emerge during the course of the litigationit must be present at the time of filing. i. Rule after Grupo and Caterpillar: If there is no diversity at the time of filing, but the court takes part in fixing the diversity (by dismissing a party, as in Caterpillar), well say its close enough. However, if there is no diversity at the time of filing, but one of the parties drops and the court takes no part (by eliminating partners, for example, as in Grupo), then that will not suffice.

Trial Issues/Judgment
25

1. Sequence of Trial (see p 414, Glannon) 2. R.50(a)(1): If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a sufficient evidentiary basis to find for the party on that issue, the court may: (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense i. This is called Directed Verdict/Judgment as a Matter of Law (JMOL) ii. MUST MOVE FOR DV IF WANT JNOV LATER iii. SHOULD MOVE FOR DV EVERY TRIAL iv. In Reid, the court granted a directed verdict for the defendant because there was equally likely that the cows got onto the railroad because the owner left the gate open as the RR failed to maintain the fence. (50/50 goes to defendant because plaintiff has burden of proof). v. In Chamberlain, estate of decedent alleged that negligently operated RR cars crashed, causing decedents death. At trial, the estate presented witness who testified that there was a loud noise in the yard. The defendant RR produced witnesses who testified affirmatively that a crash did not occur. The Supreme Court said, "We, therefore, have a case belonging to that class of cases where proven facts give equal support to each of two inconsistent inferences; in which event, neither of them being established, judgment, as a matter of law, must go against the party upon whom rests the necessity of sustaining one of these inferences as against the other, before he is entitled to recover. Estate couldnt prove that the crash occurred. 3. R.50(b): If the court does not grant a motion for [directed verdict], the court is considered to have submitted the action to the jury subject to the courts later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgmentthe movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under R.59. a. This is called Judgment Notwithstanding the Verdict (JNOV) b. SHOULD MOVE FOR JNOV/NEW TRIAL EVERY TRIAL c. R.50(c): If the court grants [the jnov], it must also rule on any motion for a new trial i. In Norton, the jury found for plaintiff on products liability case. The trial court judge overturned the jury, however, using jnov (but he did not grant dv earlier in trial). The decision was appealed, where the appellate court overturned the jnov, and remanded. Upon remand, the jury verdict was reinstated. 4. R.59. New Trial a. Two main reasons for new trial: (1) flawed procedure (bad jury instruction, bad evidence allowed in, etc.) and (2) flawed verdicts (jury ignores instruction/doesnt understand) i. TEST: look for one-sidedness, jurys decision is against the clear weight of the evidence (SuperDell effect, for example.) See Lind, below. 26

b. Orders for new trial are not appealable. R.50(c)(2): Conditionally granting the motion for a new trial does not affect the judgments finality. i. UNLESS: along with the order for new trial, the court grants a jnov. The jnov is a final decision and would make the jnov+conditional new trial appealable. c. In Lind, employee claimed that he his employer orally promised him a pay increase, then breached. Employer denied making the promise, but jury found there to be an enforceable promise. Trial court ordered jnov and conditional new trial. On appeal, the appellate court remanded to reinstate the jury verdict, holding that if the facts of the case are uncomplicated and within the understanding of "any intelligent layman", then there is even higher skepticism that the judge, in setting aside the jury's verdict, has acted inappropriately. The dissent argued that the trial courts decision should be manipulated and the appellate court, at most, should have remanded for a new trial.

Appeal
1. Appellate court standard of review ranges from DE NOVO (no regard for trial court decision, decision is a matter of law) to CLEARLY ERRONEOUS (did the trial court make the right decision? Decision is a matter of fact). a. In Anderson, a female employee applied for job but the job was given to a male employee. The trial court found that the decision to hire the male was a violation of Title VII. The appellate court reversed, finding the trial courts decision clearly erroneous. The Supreme Court held that the trial courts decision does not appear to have uncritically accepted findings prepared without judicial guidance. A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the firm and definite conviction that a mistake has been committed. When there are two permissible views of the evidence, the factfinders choice between them cannot be clearly erroneous. The appellate court does not review the facts on appeal; their review is de novo. 2. 1291. The courts of appealsshall have jurisdiction of appeals from all final decisions of the district courts For finality, there must be a final judgment with respect to all claims and all parties, and there must be relief granted. If there is no finality, a decision is not appealable. a. Exceptions: i. R.54(b). When an action presents more than one claim for reliefthe court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. ii. 1292(a). Injunctions. iii. 1292(b). An important question that will affect the outcome. (District court judge must state in writing why he thinks it materially affects the litigation, and the request for appeal must be received by the circuit court within 10 days.) 3. Things to remember about appeals a. Must be a loser 27

i. Would relief change? 1. Adversity principle: Consider the relief sought by the party prevailing on one, but not all, theories. If the relief sought under the losing theories was identical to that awarded, no appeal will lie. Simply stated, if plaintiff sues for battery and fraud, and is awarded $10k for the battery claim, the only way she will be able to appeal is if she was asking for something other than the $10k she received for winning the battery claim. ii. Would the effect of the judgment change? b. Trial court must have had a chance to hear your claim and decide it. i. Even if lost on a 12(b)(6), need to raise claims again at the appellate level to make sure you havent abandoned or waived the claim. ii. The issues you raise to the appellate court will determine the standard of review. (If there is no dispute of fact between the parties appellate briefs, the court will decide as a matter of law, etc.) c. Must not be frivolous i. RAP 38 allows costs to be imposed against frivolous appeal d. Finality. (ALL CLAIMS, ALL PARTIES) i. In Liberty Mutual, plaintiff filed a complaint seeking an injunction to enjoin the discriminatory practice of the employer, seeking back pay, exemplary damages, and liquidated damages, seeking the costs for the suit, and seeking other relief as the court deems appropriate. Immediately after discovery, the district court entered summary judgment for the plaintiff on the issue of liability alone, without resolving other issues. The employer appealed the decision, and the appellate court affirmed. The appellate court lacked jurisdiction, however, because the district courts order was not appealable as a final decision under 1291, nor was it an interlocutory appeal under 1292. While the district court had ruled on one, but fewer than all of the claims (see R.54(b)), it left unresolved and did not finally dispose of any of the plaintiffs prayers for relief. ii. In Apex, the Supreme Court held that a ruling to produce materials for discovery is not appealable because [a]n order of this nature is interlocutory 4. Mandamus. This is an extreme remedy, to be used only in extraordinary situations where a public official needs to be compelled to act in a certain manner. 5. Harmless Error. (R.61) a. In Harnden, the purchaser of an RV sued the dealer on breach of contract and 6 other counts. The dealer submitted a maintenance report along with their review for summary judgment, which was granted. The plaintiff disputed the admissibility of the report for lack of an affidavit. The dealers attorney offered to resubmit, but the court declined the gesture. After deciding for the defendant on summary judgment, the plaintiff argued that if he had known the maintenance record was admitted into evidence, he would have hired an expert of 28

his own and the case would have had a different outcome. The appellate court held that if the defendant was compelled to resubmit the form with an affidavit, the result would have been the same: affirmed. b. In order to be harmful, the harm must affect the partys substantial rights. How does it affect substantial rights? i. Does the same result follow if the mistake were to be remedied? ii. Was notice given to the party that is complaining about the mistake about the content of the harm? Did he have an opportunity to address the harm if desired?

Remedies
1. Declaratory. (R.57) a. Sought on an actual threat of litigation, when a party is seeking clarification on law before they take an action they think may be questionable. b. Declaratory judgments are real, and are final 2. Specific (equitable). (R.64(b)) a. Injunction. To act or refrain from acting. Granted when money damages are inadequate and/or damages are irreparable. i. TRO (Temporary Restraining Order)(R.64(b) true emergency of physical injury or destruction of property ii. Preliminary (R.64(a) until judgment is rendered. 1. In Inglis, a small baker sued a big baker seeking a preliminary injunction to force the big baker to raise the prices of their bread because the big bakers price fixing was putting the small baker out of business. The trial court said that the small baker was entitled to such relief only if (a) there was irreparable injury to the small baker, (b) the small baker would likely win on the merits, (c) the big baker would not be harmed more than the small baker is benefited by the injunction, and (d) granting the injunction is in the public interest. Trial court found that the injunction would not satisfy the test, appellate court affirmed, and the Supreme Court remanded, in order that the trial court could apply an alternative test: Either (1) serious questions are raised and the balance of hardships tips sharply in the moving partys favor, or (2) the combination of probable success and the possibility of irreparable injury. Courts should apply both tests when deciding whether to grant an injunction. iii. Permanent is the judgment. 3. Substitutionary. Usually money damages. a. Liquidated: Allowed only "reasonably" beyond a calculable amount. These damages are agreed to beforehand about the price of harm, they are contracted for damages. b. Statutory: bad check fees, etc. Stipulated by statute. c. Compensatory: intended to redress the concrete loss that the plaintiff has suffered by reason of the defendants wrongful conduct. i. Economic: i.e. money that the plaintiff has lost or will lose from being out of work 29

ii. Non economic: i.e. pain and suffering d. Punitive: Aimed at punishment, deterrence, or retribution. i. In State FarmMutual v. Campbell, insured was involved in an accident in which one other driver was killed and another permanently disabled. When the decedents estate and the disabled driver (Ospital and Slusher) offered to settle with the insured (Campbell) for $50,000, State Farm refused. Campbell was found 100% liable at trial, ordered to pay $185,000 in damages. State Farm refuses to cover more than the policy limit of $50,000, which left Campbell responsible to pay $135,000 excess. Later, State Farm agreed to cover the full $185,000, but Campbell, Ospital, and Slusher agreed to pursue State Farm together on a bad faith claim. A jury ruled in favor of the plaintiffs on the bad faith claim, ordering State Farm to pay $2.6million in compensatory damages and $145million in punitive damages. Those amounts were reduced to $1million and $25million, respectively, but the UT Supreme Court reinstated the punitive damages award to $145million and kept the compensatory damages at $1million. The US Supreme Court held that the award of punitive damages was excessive, and remanded to reevaluate the calculations under the following guideposts, set forth in Gore, to determine whether the punitive damage award is constitutional under the due process clause: 1. The degree of reprehensibility of the act a. Must focus ONLY on the claim/party at issue; cant include acts that happen outside jurisdiction. b. What is the reasonable relationship between defendants punishable misconduct and plaintiffs harm? c. What did defendant do that was unlawful? 2. The ratio between the compensatory damages and punitive damages shouldnt be greater than a single digit multiplier (1:9) a. Possible exception: when compensatory damages are very low for a particularly egregious action. 3. The difference between civil fines imposed in similar cases and the jury award. a. The nature of a civil or criminal penalty provides some useful guidance to courts when fixing punitive damages because it reflects legislative judgments concerning appropriate sanctions for the conduct at issue.

30

[Caption (R.10(a))] United States District Court for the District of Utah

Paul Prettyboy, Plaintiff v Diana Drip, Bonnie Bolt, Drip Electrical Corporation Defendants. | | | | | |

| | COMPLAINT (R.7(a)/R.10(a)) Civil Action, File No. __________

Plaintiff Paul Prettyboy (Plaintiff) alleges: Introductory Statement (R.8(a)(1))

1. 2. 3.

Plaintiff is a citizen of the State of __________. Defendant _______(______) is a citizen of the State of ____________. Defendant ________ (________) is a citizen of the State of ____________. 31

4. 5. 6.

7. 8.

Defendant ____________ (__________) is incorporated under the laws of the State of ____________ and has its principal place of business in the State of _____________. Jurisdiction is proper in this Court over ____________s claim of _______________ by virtue of 28 U.S.C. (1331fedQ/1332div) (If joining a claim) Jurisdiction is proper in this court over ____________________s claim of ___________________ by virtue of 1367 because this claim is so related to claims in the actionthat [it] form[s] part of the same case or controversy. The amount in controversy exceeds, without interest and costs, exceeds the sum or value specified by 28 U.S.C. 1332(a). Venue is proper in the __________ District of _________ under 28 U.S.C. 1391(a/b) because (i.e. if 1391(a)(2), a substantial portion of the events that gave rise to the claims asserted herein occurred in that district)_________________________________________. General Factual Allegations (R.8(a)(2))

9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19.

Plaintiff is a student at St. Michael College in New York. Plaintiff traveled to Ft. Lauderdale Florida, on Sunday, April 5, 2009, for his spring break. In the early morning of April 8, 2009, Plaintiff was driving the blue Chevy Corvette that he owned in the Ft. Lauderdale area. On the night of Tuesday, April 7, 2009, Defendant Bolt and Defendant Drip attended parties in the Ft. Lauderdale area. Defendant Bolt and Defendant Drip attended these parties by travelling in a 1997 Ford van owned by Drip Electrical. During the course of the night, Defendant Bolt consumed alcohol. During the course of the night, Defendant Drip consumed alcohol. As a result of her consumption of alcohol, Defendant Bolt was unfit to drive. As a result of her consumption of alcohol, Defendant Drip was unfit to drive. After consuming alcohol, Defendant Drip drove the van owned by Defendant Drip Electrical in the early morning hours of April 8, 2009. In the alternative, after consuming alcohol, Defendant Bolt drove the van owned by Defendant Drip Electrical in the early morning hours of Monday, April 8, 2009. 32

20.

While on a public road at the intersection of First Avenue and Main Street in Ft. Lauderdale, Florida, at approximately 1:30 am on April 8, 2009, Defendant Drip drove the van owned by Defendant Drip Electrical through a red light. In the alternative, while on a public road at the intersection of First Avenue and Main Street in Ft. Lauderdale, Florida, at approximately 1:30 am on April 8, 2009, Defendant Bolt drove the van owned by Defendant Drip Electrical through a red light. At the same time the van was driven through the red light, Plaintiff proceeded into the intersection in his Corvette under a green light. As a result, the van collided into the Plaintiffs Corvette. ClaimsWillfulness, Recklessness, and Negligence (R.10(b))

21.

22. 23.

24. 25.

The allegations contained in paragraphs numbered 1 through 17 are incorporated herein by reference. As a result of her actions on April 7 and 8, 2009, including her consumption of alcohol and/or failure to obey the traffic signal, Defendant Drip willfully, recklessly or negligently drove or caused to be driven Defendant Drip Electricals van into the intersection of First Avenue and Main Street. As a result of her actions on April 7 and 8, 2009, including her consumption of alcohol and/or failure to obey the traffic signal, at the intersection, Defendant Bolt willfully, recklessly or negligently drove or caused to be driven Defendant Drip Electricals van into the intersection of First Avenue and Main Street. The actions of Defendant Drip, either or alone or in combination with the actions of Defendant Bolt, caused the van to collide with Plaintiffs Corvette. The actions of Defendant Bolt, either or alone or in combination with the actions of Defendant Drip, caused the van to collide with Plaintiffs Corvette. As a result, Plaintiff was severely injured. Plaintiff had broken bones and lacerations, has suffered and continues to suffer great pain of body and mind, permanent scarring on one of his arms, and pain in his right knee. These injuries have caused him to incur expenses for medical attention and hospitalization in the amount of $65,000, 33

26.

27.

28.

29. 30.

31.

32. 33.

Plaintiff was also forced to drop out of college for a semester, at a loss of $15,000, and suffer other economic damages, including lost income. In addition, Plaintiffs brand new Corvette was destroyed in the accident. Prayer for Relief (R.8(a)(3)

Wherefore, Plaintiff demands a trial by jury and judgment against Defendant Drip Electrical and against either Defendant Drip or Defendant Bolt, according to the proof, for money damages of at least $200,000 and such other amounts as the evidence will show, for costs of court, and for such other and further relief as the Court may deem just and appropriate. (R.11(a)) Date: ____________________ Attorney Address: ____________________ Attorney Email: ____________________ Attorney Telephone: ____________________ Signed: [Attorney Signature] Attorney Name:

34

R.13(a) R.18(a)

D
1
R.13(g) R.13(a)

P
1

R.20(a)

R.18(a)

P
2

R.13(a)

D
2

35