Professional Documents
Culture Documents
Introduction
Pleading: Documents (complaint & answer)
Discovery: parties provide each other with evidence
Summary judgment: Youve got a smoking gun
Trial: ONLY REASON WE HAVE TRIALS IS TO RESOLVE FACTUAL DISPUTES
Post-trial motions: dictated by the rules
Federal Courts: District courts Circuit Courts Supreme Courts
Where do the rules come from?
o Congress has power to create lower federal courts and power to regulate the procedure of those courts
They delegated this power to the Sup. Court
Rules are made by an advisory committee
o FRCP = 1938; SC = 1985
Goals of the FRCP Rules:
o FRCP 1: ensure a just, speedy, and inexpensive determination of every action
o FRCP 2: There is one form of action; civil action
This system is dependant on being adversarial.
o Other countries let judges decide what claims, evidence available, ask questions
o Cons: Can be expensive, assumes both parties have equal access to skilled lawyers, and have resources
Overview of Jurisdictional Concepts:
o If you file in the wrong place, it can get thrown out
o 1331 & 1332
Art III = governs judiciary
Sets up types of cases that the fed ct can hear
motion: a request to the ct to take some kind of action (not a pleading; it is a request for an order)
either moved to dismiss or a motion to dismiss motion is a noun, not a verb!!
order: the action of a ct (takes an action by issuing an order)
allegations: statements made in numbered Ps of the complaint
sua sponte: ct dismisses the case on its own
evidence: what is used to prove facts
to file: to deliver to the court
to serve: got it to the person
to serve process: to submit/give/send summons and complaint
process: the complaint & summons
response: An argument or brief presented in answer to that of a movant, appellant, or petitioner.
Hearing: on a motion, unlike a trial which is on factual disputes
Personal & Subject Matter Jurisdiction Compared
3.
Concurrent jurisdiction: when state and federal court simultaneously have SMJ over a lawsuit
Code pleading/ Fact pleading requirement of statements of facts or ultimate facts (high detail, rather than claims)
constituting the cause of action, in ordinary and concise language, without repetition, and in such a manner as to enable a person of
common understanding to know what is intended (formalism of language in the pleading)
***In rules pleading, statement of claim, not statement of fact
pleading the evidence plaintiff who alleges facts too specifically (claims are dismissed for stating legal conclusions.)
pleading conclusions of law plaintiff who alleges facts too generally (usu. dont get thrown out for being more specific.)
too much detail vs too little detail
Defendant tested legal sufficiency by filing a general demurrer to the complaint (does not exist in Federal Court 12(b)(6) motion).
Problem: calls for highly detailed pleading too difficult to fully research all the facts needed to bring a complaint before one can
initiate the action, and thus meritorious Plaintiffs can not bring their complaints in time before the statute of limitations expires
In FRCP 8(a)(2), drafters lowered threshold of detail specificity by eliminating the word facts, but the party must still
allege some factual information that will lend to the elements of the claim to the extent that it is true. (Rule 8(a)(2) below)
S.C. Standards
SCRCP 8 A pleading shall contain:
(1) short and plain statement of the grounds including facts and statutes upon which the courts jurisdiction depends
(2) short and plain statement of the FACTS showing that the pleader is entitled to relief
(3) prayer or demand for judgment for the relief of which he deems himself entitled; relief in the alternative or of several different types may be
demanded.
Stroud v. Riddle (Supreme Court of S.C.)
Residents of separate counties suing those counties because properties of similar value within the school district are
being taxed unequally, because of the different methods of assessing property in the respective counties.
Holding: The court held that this allegation is an ultimate fact. The trial judge erred in holding conclusion of law.
Certain code pleading states require a complaint to contain a statement of ultimate facts for purposes of factual sufficiency. The pleading should
include these types of facts
Dictum: If the complaint had simply alleged that the plaintiffs were being unequally taxed in violation of the due process and equal protection
clauses of the State and Federal Constitutions, it would have been demurrable. Instead, the plaintiffs have said, in effect, in this school district
properties of equal value are being assessed and taxed differently.
South Carolinas fact pleading standard requires more specificity than the federal notice pleading standard
Also heightened specificity under FRCP (b)&(g) claiming fraud, mistake, or special damages (see below)
Ultimate facts facts that the evidence upon trial will prove, and not the evidence that will be required to prove those facts
(alleging factually specific information as to each of the elements of the claim)
Conclusions of law describe legal status, condition, or legal offense
(assertions describing elements of a claim with no real factual detail at all)
Ex. He negligently injured me. or I was taxed unequally in violation of my equal protection rights.
FRCP 8 Breakdown:
Rule 8(a) A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the courts jurisdiction, unless the court already has
jurisdiction and the claims needs no new jurisdictional support AND
Plaintiff must allege that the case is properly within the courts subject matter jurisdiction. (Does not
require allegations of personal jurisdiction or venue)
(2) a short and plain statement of the claim showing that the pleader is entitled to relief AND
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief
Plaintiff tells the court what recovery is sought, i.e., prayer or ad damnum clause (monetary recovery).
No dollar amount required. Plaintiff can demand damages in amount to be shown at trial.
Equitable relief (injunction, specific performance, declaratory judgment)
Can plead for relief in the alternative e.g., damages and specific performance
Rule 8(a)(2) a short and plain statement of the claim showing that the pleader is entitled to relief
What is the level of detail required under Rule 8(a)(2)?
Dioguardi v. Durning (2d Cir. case, affirmed by Supreme Court in Conley v. Gibson)
Complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the
cannot prove a set of facts in support of his claim which would entitle him to relief.
There is enough to state a claim, even if pleading is not very clear, as long as substantive law would provide the
Plaintiff relief when statements are taken as true. Here, Dioguardis pleading was horribly written, but he would be
entitled to relief if all his claims were proven true. ***FACTUAL SUFFICIENCY***
Holding: The FRCP does not require a statement of fact that constitutes a COA, instead, the complaint needs to
contain a statement of the claim showing the pleader is entitle to relief
-Look to the face of the complaint
Rule 8(a)(3) a demand for relief sought which may include relief in the alternative or different types of relief
(1) Often called a prayer for relief
(2) May seek equitable relief, such as
a. Specific performance
b. Injunction (declaratory judgment)
c. Money damages
Damages as pleaded in a lump sum
Legal Sufficiency determining whether the Plaintiff has alleged a claim recognized by the law
Defendant makes a Rule 12(b)(6) motion for failure to state a claim.
The court only looks to the face of the complaint (it does not consider evidence that may support the allegations):
1. assumes (for the purposes of this motion) that the Plaintiffs factual allegations are true.
2. Asks: If these allegations are true, would the law provide a remedy?
3. If the fails to state a claim, the court will grant the Rule 12(b)(6) motion (usually with leave to amend to give the
another chance)
Plaintiff may fail to state a claim, even if the factual allegations are fairly specific, because the law simply does not allow any relief
based on those facts (Garcia, 2nd issue: cannot get relief for statements protected under absolute privilege on labor board hearings).
Factual Sufficiency Plaintiff must allege facts in complaint to some level of specificity. Court will read factual allegations in the
light most favorable to the Plaintiff (isnt a hard threshold to pass).
Standards of Appropriate Specificity:
1. code pleading/ fact pleading
2. FRCP notice pleading (put on notice)
3. Twiqbal (Twombly/Iqbal) plausibility pleading
Garcia v. Hilton Hotels (Fed. Dist. Ct. Puerto Rico)
o Garcia fired: violently discharged. Hilton makes Rule 12(b)(6) motion b/c Garcia did not allege that
slanderous statements were published (element of defamation). Court says it is clear that Plaintiff stated
violently discharged to allege publication, and it reasonably may be conceived that Plaintiff, at trial, could
show evidence to prove publication. factual sufficiency
o Hilton articulates slanderous statements again in hearing at the Labor Dept. Argues that they have absolute
privilege from suit b/c conclusive defense to an action based on utterance. Absolute privilege was given them
via statute.
Conditional Privilege: immunizes a from suit only when privilege is properly exercised in
performance of a legal or moral duty (ex: attorney)
Absolute Privilege: immunizes the from suit no matter how wrongful the action might be, or if done
with improper motives (proceeding authorized by law) (Hilton hotel said it under oath) (ex: priest)
(Absolute privilege for statements made in legislative or judicial proceedings.) Garcia would not be
entitled to relief even if he could prove his allegations were true b/c not actionable according to the
law. legal sufficiency
o Holding: A motion to dismiss (FRCP 12(b)(6)) requires that a P failed to state a claim up on which relief can be
granted, not that the failed to state a CoA. When construing a 12(b)(6), all inferences are drawn in light
favorable to the . Dismissal should not be ordered unless there is no basis for relief.
Vaguness will not defeat a complaint. The complaint alleges that was falsely and slanderously
accused of procuring prostitution. Although the complaint failed to alledge publication and specific
instances of when these statements were made, the complaint should not be dismissed on this basis.
Instead, the shold have to provide more definite statement
Bell Atlantic Corp. v. Twombly
o Plaintiff were consumers who sued a group of regional phone and Internet service providers, claiming that by
agreeing not to compete with each other, the service providers kept fees artificially high. Plaintiffs only allege
conscious parallelism (that defendants were aware of each others actions and engaged in such actions
themselves), which is only actionable if it is a result of an agreement between the defendants. Court holds that
allegations do not eliminate the possibility of independent action. Conscious parallelism OR an agreement
Both are equally possible. Policy: to protect corporations from difficult, expensive discovery phase; no way to
defend w/o some idea of how and why the defendants conspired
o Holding: Plausibility Standard must allege facts that, if true, would plausibily suggest a conspiratorial
agreement. To alledge facts that are merel consistent with a conspiracy is not sufficient
o Takeaway: Plausibility standard must include enough facts in complaint to make it plausible, not merely
possible or conceivable, that they will be able to prove their crimes. **no one really knows what this means**
Ashcroft v. Iqbal
o Muslim citizen in Pakistan suing AG and Director of FBI alleged that after Sept 11 they arrested and detained him under
restrictive conditions. Extended Twombly plausibility
o
o
Issue: are conclusory allegations that high-ranking government officers knew of or condoned allegedly
unconstitutional acts by subordinate officials sufficient to state a claim for unlawful discrimination
Reduces Twombly to two working principles:
1. ignoring conclusions of law identify the parts of complaint that are merely legal conclusion
Rule 8 does not unlock the doors of discovery for a Plaintiff armed with nothing more than conclusions.
2.
applying the plausibility standard to the remaining factual allegations taken as true
sufficient facts to show that the s implemented their policies for the purpose of discrimination his complaint did
not do this.
judge must use common sense and experience to determine if the claim is plausible
Takeaway from Twonby & Iqbal:
1. These cases altered deferral court pleading standards, requiring s to include far more detailed facts in a complain if
they want to survive a Rule 12(b)(6) motion to dismiss
2. Plausibility standard
(b) Paragraphs; Separate Statements. A party must state its claims or defenses in numbered paragraphs, each limited
as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier
pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence and each
defense other than a denialmust be stated in a separate count or defense.
Rule limits each paragraph to a single set of circumstances not a single fact, and calls for a
commonsense breakdown of allegations as far as practicable. Allegations in a paragraph should
form a logical grouping, relate to each other. Reducing specificity to an atomic level would make the
complaint unduly tedious. (Glannon)
(c) Adoption by Reference; Exhibits. A statement in a pleading may be adopted by reference elsewhere in the same
pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is part of the
pleading for all purposes.
Parties should exercise care in incorporating documents. This creates an admission of the
authenticity of the document, if not their accuracy, which may weaken an argument.
Heightened Pleading Requirements claimant must allege in more detail than is required under Rule 8(a)(2).
e.g., what happened, what did they say, was it published
Why heightened requirement? easy to make a fraud claim against someone that will damage their reputation, even if suit is frivolous
Higher Std also applies to in his answer pleading one of these as an affirmative defense
(g) Special Damages. If an item of special damage is claimed, it must be specifically stated.
e.g. consequential damages, other damages Defendant might not contemplate (not apparent to Defendant)
Include the amount and possibly how you calculated that amount
Gives warning to of any unexpected/unusual damages
If it doesnt say it has to be stated with particularity, the default is FRCP 8(a)(2). 8(a)(2)= generally
has valid defense to court proceeding with the case (& save $)
Defendant choosing to make a pre-answer motion may not later make a second one asserting other pre-answer motions. can put in answer or
another motion after pleading or at trial (Rule 12(h)(2)) (unless it is a waivable defense)
Rule 12
(a)
Answers
How and when should a defendant respond via an answer?
a type of pleading that responds to a complaint
v. making a motion tactical difference = must respond to the substantive allegations in the complaint
2* Things you can do in an answer
(1) respond to allegations Rule 7
a. Admit (establish undisputed facts)
b. Deny Rule 8(b)(2-4)
i. General denial (rule 8(b)(3)) one sentence answer that denies every allegation rare must be made in
good faith
ii. Specific denial respond to each separately
iii. Qualified General Denials need not match the complaint for (ex: admits allegations in 5 and denites
each and everyt other allegation of the complaint)
c. Claim they lack sufficient knowledge to admit or deny (Rule 8(b)(5))
i. Can not be used if the has reasonable access to the information or might be a Rule 11 violation
(2) affirmative defenses raise new matter
a. Rule 8(c)(1) parties must state their affirmative s in the answer. These inject new matter into the dispute
(3) Counterclaim**
Rule 8 (in regards to answers to complaints, etc.)
(b) Defenses; Admissions and Denials.
(1) In General. In responding to a pleading, 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 asserted against it by an opposing party.
(2) DenialsResponding to the Substance. A denial must fairly respond to the substance of the allegation.
Counsel should resist temptation to plead contrary facts. Argumentative denial could be an admission (code states).
(3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleadingincluding the
jurisdictional groundsmay do so by general denial. A party that does not intend to deny all the allegations must either
specifically deny designated allegations or generally deny all except those specifically admitted (qualified general
denial).
(4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part
that is true and deny the rest.
(5) Lacking knowledge or information. A party that lacks knowledge or information sufficient to form a belief about the
truth of an allegation must so state, and the statement has the effect of a denial.
(6) Effect of Failing to Deny. An allegationother than one relating to the amount of damagesis admitted if a responsive
pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered
denied or avoided.
Allegations not denied are deemed admitted (except allegations regarding the amount of damage).
Attorney should prepare an affidavit showing that the complaint (with amount due) was served and not motion or answer was
received from Defendant.
Clerk must enter partys default.
No requirement to serve affidavit on Defendant
damages will be
or if minor or incompetent person (only if represent by a guardian)
or when the Defendant has appeared!!!! even if sum certain
1. Defendant can show excusable neglect
2. BasicallyIf I request a default for not showing up, but then he appears before the default judgment
hearingthen we have to notify at least 7 days b4 hearing
(c) Setting Aside a Default or a Default Judgment. The court may set aside an entry of default for good cause, and it may set aside a default
judgment under Rule 60(b). (Grounds for relief from a final judgment)
i. How do you get a default judgment removed?
1. can have default removed for good cause (ex: layperson does not know what is going on)
2. excusable neglect Rule 60(b)
a. The defaulting Defendant must convince the court that she was not guilty of culpable conduct, that she
b.
has a meritorious defense, and that reopening the case would not prejudice the Plaintiff
not attorney preparedness!!!
Example #2 on Quiz 1
Even though there is a sum certain, the Defendant appeared, and thus Plaintiff has to apply to the court to get a default judgment entered.
Rule 54
(c) Demand for Judgment; Relief to be Granted. A default judgment must not differ in kind from, or exceed in amount, what is demanded in
the pleadings.
Every other final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its
pleadings.
Rule 60(b)
(b) Grounds for Relief From a Final Judgment, Order, or Proceeding
See rule book.
Default a ministerial notion on the courts docket sheet that the Defendant has failed to plead or otherwise respond in time
Defendant fails to respond in any way within the appropriate period Rule 12(a)(1)(A)(i) = 21 days
Not automatic must ask the clerk to enter the default on the docket sheet Rule 55(b)(1)
Default Judgment a final order as concluding the litigation on a claim or entire action in favor of one party or the other
1. By the clerk: Rule 55(b)(1)
o Requirements:
Sum certain or sum that can be calculated
must make request to clerk
must produce affidavit showing the amount due
must not have defaulted for not appearing
cannot be a minor or incompetent person
o If these requirements are met, then the clerk MUST enter default judgment
2. By the Court: Rule 55(b)(2)
must apply to the courts
has no absolute right to default judgment
Default judgment may be entered against a minor or incompetent person ONLY IF represented by a guardian,
conservator, or other fiduciary who has appeared
If its a party who has appeared before, you must serve them with notice of the application for default judgement at
least 7 days before the hearing
Setting aside a default judgment (Rule 60(b))
Good cause
o DJ was set aside because the defaulting party has been distraught over husbands death, had been under the
care of a psychiatrist, was not familiar with legal matters, and did not try to manipulate the proceedings
(b) if the pleading is one to which a responsive pleading is required (i.e., a complaint or an answer w/ counterclaims), 21
days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b) (defenses), (e)
(motion for a more definite statement), or (f) (motion to strike), whichever is earlier. Rule 15(a)(1)(B)
a. If a pleading does require a responsive pleading (complaint or an answer w/ counterclaims),
i. the party may amend within 21 days after the answer or pre-answer motion is served on them
Rule 15(a)(2)Amendments with Leave of Court
In all other cases, a party may amend its pleading only with the opposing partys written consent or the courts leave. The
court should freely give leave when justice so requires.
You must either:
o Obtain the courts permission; or
o Obtain the consent of the adverse party
Professional courtesy says you should allow to amend unless its a detriment to your
clients case
Liberal standard justice so requires
o Depends on how far into litigation the case is fairness
o Depends on the judge
Rule 15(a)(3) Time to Respond
Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to
respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.
Example #5 Quiz 1
Plaintiff files a complaint in federal court on March 1, 2014, and has process properly served the same day. On
March 5, 2014, she serves and files an amended complaint, adding three new claims. By which date must Defendant
respond to the amended complaint?
Time to remaining to respond to original pleading until March 22, 2014 By this date.
14 days after service of amended pleading March 19, 2014
Rule 15(b) Amendments during and after trial
Amendments that are:
(1) Based on an Objection at Trial.
a. Pleadings are the blueprint for the litigation. Sometimes evidence will be introduced for issues not in the pleadings.
b.
i. Objection of Variants made when evidence for new issues varies from what is in the pleadings
Court can admit or reject evidence if party can show detriment
i. But not if parties have acted as if issue was there all along
3.
How can parties learn about each others cases before trial?
DISCOVERY
Overview:
File complaint Submit 26(f) report 16(b) conference (optional) 16(b) order final pre-trial conference trial
Two meanings of discovery:
1. Phase of litigation
2. Disclosure giving each other information
Discovery is the process by which parties request information from each other, and if necessary, enlist the courts power to compel
each other to respond.
Purposes:
1. preservation of evidence that might otherwise be lost before trial
2. provide mechanisms for narrowing the issues in dispute between the parties
3. permit parties to acquire greater information about their own and the others side
a. strongest evidence of wrongdoing will be in the possession of the alleged wrongdoer Plaintiff would otherwise
not have the necessary proof
-The discovery rules allow parties to learn, well in advance of trial, what evidence the other side has in support of its claims or s
-The discovery rules also permit parties to acquire information for the purpose of strengthening their own cases. The strongest
evidence of wrongdoing will be in the possession of the alleged wrongdoer without access to this information, the plaintiff would
not have the necessary proof to have a successful case.
FRCP 26(f) Early conference
As soon as possible but at least 21 days before a scheduling conference is to be held or scheduling order is due under Rule
16(b)
Consider claims and defenses start thinking about settlement to save $$
Arrange for automatic disclosure under FRCP 26(a)
Develop proposed plan (used by judges in creating scheduling order)
No formal discovery can commence until after this conference has occurred
Summary requires parties to confer about disclosure and the subsequent course of discovery
Disclosures: The act or process of making known something that was previously unknown; a revelation of facts
Rule 26 Duty to Disclose; General Provisions Governing Discovery
Rule 26(a)(1) Required Initial Disclosures (Automatic Disclosure)
i. Requires each party to disclose certain information without any request by another party:
i. name, address, and telephone number of each individual with discoverable information
ii. a copy of all documents, electronically stored information, and tangible things in
possession, custody, or control
iii. computation of each category of damages and documents used to compute damages
iv. insurance liability insurance produced by the defending party that will satisfy
judgment (purpose to encourage settlement)
ii. Limited to discoverable information and witnesses the party may use to support its claims or defenses (NOT
information the party plans to use against the other party, even if within the scope of discovery under Rule 26(b)
(1)) aka: the good stuff
1. Parties can only obtain damaging information through interrogatories, document requests, and
depositions. Now you should find out what information the parties have against you!
iii. 26(a)(1)(C) disclosure at or w/in 14 days of 26(f) and categories of info that must be disclosed.
iv. 26(a)(1)(E) a party must make its initial disclosures based on the info then reasonably available to it, not excused
from making disclosure because it has not fully investigated the case.
v. 26(a)(4) disclosures must be in writing, signed, & served
1. DO NOT FILE
Example: What if Defendant alleges contributory negligence, but does not provide any evidence before disclosure date?
Can be a violation of Rule 11, but if alleged upon information and belief, may not violate Rule 11.
Rule 16 Scheduling Conferences
Rule 16(a) Scheduling conference/Pre-trial conference
o Optional meeting of the parties and their lawyers with the court to prepare a scheduling order
o Case management & judges involvemet in settlement efforts
Rule 16(b) Scheduling order
o As soon as possible, but within the earlier of 90 days after the has been served or 60 days after the has appeared
o Lays out datelines for discovery and time leading up to the trial
o Usually have amended scheduling order
Rule 16(f) Final Pre-trial Conference
o Final pretrial conference order bluepring for the trial (every factual/legal contention, every witness, every piece of
evidence that will be introduced, etc)
8.
Time to respond: party that has to respond to request must do so in writing within 30 days after being served. 34(b)(2)(A)
c.
Should be taken at the end of discovery when you have a lot of information
2.
37(b): Disobedience of Court Order. Note that this provision is normally triggered only where the court has already issued
an order in response to a motion to compel or a motion for a protective order. (ct grants motion to compel)
3.
4.
37(d): TOTAL FAILURE of Party to Attend Own Deposition or to Serve Rule 33 or 34 Responses.
a. Note the difference between these situations and partial failures covered by 37(a).
i. Difference btw this and 37(a)?
1. 37(a) covers partial failures. This section talks about TOTAL failures
2. This is talking about failure to appear not disclosure. 37(d) is also failure to serve where 37(a) is
failing to make designation or failure to answer.
b. Whats covered?
i. Party didnt even show up to its own deposition
ii. Party didnt serve ANY answers to interrogatories
iii. Party didnt respond AT ALL to a request for inspection
5.
37(e): Electronically Stored Information (ESI). This provision notes that a party cannot be sanctioned if it negligently
loses ESI in good faith or destroys ESI in good faith because of an existing document destruction/retention policy.
HOWEVER, a court may issue these sanctios upon a finding that a party intentionally failed to preserve such ESI in order to
deprive other parties of it. Note that a party acquires an affirmative duty to suspend its normal document destruction policy as
soon as it reasonably anticipates litigation. At that point, the destruction policy will not be an excuse for failing to provide
requested docs under Rule 34.
6.
37(f): The 26(f) Conference. A party may be sanctioned for failing to participate in good faith with opposing counsel in
framing a discovery plan.
Rule 56(a) Authorizes the Court to enter judgment whenever it appears that there is (1) no genuine dispute of material
fact and (2) the movant is entitled to judgment as a matter of law
Allows early resolution of cases in which the Plaintiff meets the minimal burden to plead the elements of a compensable
claim (defeats 12(b)(6)), but cannot prove one or more of those elements.
56(b) Can make motion for SJ any time until 30 days after the close of all discovery (filed before trial)
56(c)(3) The court need consider only the cited materials BUT it may consider other materials in the record
Partial summary judgment (Rule 56(g)) disposes of some, but not all, issues in the case
6.
Test If the evidence, taken in the light most favorable to the nonmoving party, shows that there are no genuine
issues of material fact and that the moving party is entitled to judgment as a matter of law.
a. Another test whether a reasonable jury could find for the non-moving party
7.
8.
9.
i. Nonmovant has burden of proving something and movant can point to a lack of evidence on that point
ii. A party can support a SJ motion with materials that show that opponent who has the burden of proving a
material (essential) fact cannot prove that fact
iii. How?
1. Attach an interrogatory answer where nonmovant says that they dont have evidence on that point.
Thats enough to support the burden for motion of SJ, so the burden is shifted back to the P to
rebut.
What motions can the party make after evidence has been presented?
POST-TRAIL MOTIONS
1.
2.
3.
(Directed Verdict) Rule 50(a) Judgment as a Matter of Law aka JMOL Post trial
FRCP 50(a) Judgment as a MOL in a jury trial:
a. If the court, having heard the evidence at trial, concluded that no reasonable jury could find for one side, the court
may enter judgment without submitting the case to the jury
b. Even if the court believes that the preponderance of the evidence favors one party, if jury could rationally find for
the other party, it must be given an opportunity to assess the case
c. JMOL: determined before the jury goes out, taking the case away from the jury
i. Used as a device by judges that they may use to control the jurys decision making process
ii. Either party may move for a JMOL (directed verdict)
iii. Determines the outcome as a MOL
d. Party can move on a single issue (ie: motition for judgemnet on one issue)
e. Very hard to get judges want a jury verdict to work with and usually juries get it right
Standards:
a. Three standards:
i. Case should go to jury if there is even a scintilla of evidence to support the opposing partys case
ii. Requires judge to consider only evidence that supports the case of nonmoving party judge must assume
the truth of all evidence offered by nonmoving party, take all inferences from the evidence in light most
favorable to that party, and enter jmol only if that evidence would not support a verdict for the nonmoving
party
1. Test: Whether the jury, if it chooses to believe the nonmovants evidence, would have sufficient
evidence to support a verdict for that party
iii. Requires the judge to consider the nonmoving partys evidence in its most favorable light but also consider
any evidence put forward by the moving party that is not impeached or contradicted by the opposing partys
evidence
Difference between SJ:
a. The court, in Sj, makes its ruling on the basis of affivadits before trial while DV is granted on the basis of the
evidence directed at the time.
4.
5.
6.
7.
8.
9.
If JMOL motion was denied (meaning there was enough evidence for reasonable minds to disagree, but the great weight of
the evidence goes a certain way), judge can grant a new trial.
a. cannot take the case away from the jury if reasonable minds can agree
b. LOWER STANDARD THAT JNOV: with a 50(b) you have to show NO reasonable juror could have come with the
verdict. With Rule 59, its saying the scale was in your favor and its fishy that its coming out this way
i. Can make a 50(b) before the verdict and a rule 59 as in the alternative
Test Judge may grant a new trial if the jurys verdict is against the clear weight of the evidence.
The judge may consider the credibility of the witnesses
Judge may also grant partial new trials
If the right to jury trial is invoked, the first and the second trial must go before a jury Rule 38
Dadurian v. Underwriters at Lloyds of London CoA reverse the trial courts denial of a new trial. The jury;s verdict was against the
great weight of the evidence strong evidence that knew he was giving false testimony
Back-up: If you miss the 28-day window to request under Rule 59, see if Rule 60(a)-(c) can save you.
If you discover evidence more than 28 days after the judgment, party can move for relief under Rule 60, provided the motion
is filed no later than one year after entry of the judgment.
Rule 60 Relief from an order
(a) Clerical mistakes
(b) Judgment
(i) Gives legal effect
(ii) If it was jmt for the claimant, they become a judgment creditor
1. You can use legal mechanisms (sheriff can seize property)
(iii) Provokes preclusion doctrine cant relitigate same claims
(iv) Allows court to vacate a jmt
(1) Usually by
(2) New evidence evidence had to have existed at the time of the intial trial (miracle drug example)
a. Wed never have any finality if this wasnt the case
(2) Defendants.
Rule 20(a)(2) allows Plaintiff(s) to sue multiple Defendants in a single action if the same criteria are met.
Joinder of Claims
Rule 18(a)
In General. 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 an opposing party.
Provides that a party seeking relief from an opposing party may join with his original claim any additional claims he has against
that opposing party
Party means any party seeking relief against another party (not just the original Plaintiff)
No common transaction or occurrence requirement permissive (can join unrelated claims)
o
Rule 42(b): Separate Trials. For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of
one or more separate issues, claims, cross-claims, counterclaims, or third-party claims. When ordering a separate trial, the court may
preserve any federal right to a jury trial.
a) Policy of Rule 42: weighing efficiency, convenience, and justice. Rule 42 lurks in the background.
b) Orders separate trial if it would be confusing for the jury to hear everything in one.
Rule 13 Counterclaims and Crossclaims (comes in two flavors)
a) Compulsory Counterclaim 13(a) = related
a. the defending partys counterclaim arises from the same transaction or occurrence as the claim against him
b. he must assert it in the original action or lose it
c. forces parties who are already adversaries to litigate all claims arising from the same set of facts in a single action
d. Must be asserted or else the party loses the ability to assert it later in litigation
i. If fails to assert compulsory counterclaim in the first action, and attempts to assert the claim in later
litigation, can use Rule 13 as defense by making a motion for SJ (56), evidenced by the pleadings prior to
trial, to bar from asserting the claim
1. Here, compulsory counterclaim is a defense and SJ motion is the procedural mechanism to raise
that defense
ii. Policy: would be inefficient to have a separate lawsuit about the same accident.
b) Permissive Counterclaim 13(b) personal autonomy theme
a. Any claim that is not compulsory
b. Court will almost certainly order a separate trial under Rule 42(b)
c. allows a Defendant, once brought before the court, to settle all his claims against his opponent without having to file
a separate lawsuit
g) Crossclaim 13(g)
a. assertion of crossclaims arising out of the same transaction or occurrence as the main claim
b. A crossclaim is a claim asserted by one party against a co-party (someone on the same side of the v as the claimant)
c. allowing assertion of these claims in the main action promotes efficiency and consistency because the same
underlying facts will be litigated on the main claim and on the crossclaim
d. crossclaim is optional (will not be waived)
e. Rule 18 a party seeking relief from an opposing party may join with his original claim any additional claims he
has against the opposing party (**hardest thing about 18 is to remember that its there**)
i. No need for common transaction or occurance
ii. Note: pleader includes original , party counterclaiming, party crossclaiming, or a third party claim
c) Joining Additional Parties go to rule 20 Rule 13(h)
Rule 20 Joining Parties
Applies to or to asserting counterclaims
When can a join several s?
o When the claims arise out of the same transaction AND
o Any question of law/fact in common
o Most of the time, if you satisfy (A), you satisfy (B)
Jurisdictional Issues with Joinder Joinder rules do not confer any rules about jurisdiction
Joinder claim is still must be subject to subject matter jurisdiction in the federal courts.
Impleader Rule 14
When can a defendant bring in a new party and assert a claim against him or her?
Parties:
o The third-party plaintiff
o The impleaded third-party defendant
Rule 14(a) gives the a limited right to implead new parties against whom she has claims related to the main action.
o may bring in a person not yet a party to the suit who may be liable to her for all or part of any recovery the
Plaintiff obtains on the main claim. derivative liability
indemnification complete reimbursement
(a) SCOTUS says this is different from Merril Dow because the IRS will have difficulty selling property if different
state courts get to interpret federal seizures. No uniformity.
(i) Says there is a substantial federal issue
iii) Factors to Consider:
(a) There is federal subject matter jurisdiction if:
(b) Necessary to resolving state law claim?
(c) Is the issue substantial?
(d) If subject matter jurisdiction is granted, would it disturb the balance between federal and state power?
c)
Well-pleaded Complaint rule (sets forth only a claim, unadorned by anticipated defenses or other extraneous material): P
cant anticipate a defense. The federal question must be integral to the Ps COA, as revealed by Ps complaint.
i) Louisville & Nashville RR Co. v. Mottley (pg. 215 F&P)
ii) Has the effect of funneling many questions of federal law out of federal courts and into state courts
iii) SMJ, based on a suit arising under the Constitution and the laws of the US, is established only when the s statement of
his own cause of action shows that it is based upon those federal laws or constitution.
(1) It is not enough for the to allege an anticipated to his cause of action and assert that is invalidated by some
provision of the US Constitutoin
Diversity
28 U.S.C 1332(a)-(c)
Two requirements for a diversity case:
1. must involve citizens of different States
2. amount in controversy must exceed $75,000
1. Claim cannot be dismissed for failure to meet AIC unless it appears with a legal certainty that the
claim is for less than the jurisdictional amount
2. Punitive damages are allowed to be included if reasonably recoverable
Purposes
1. eliminates home field advantage
a. federal court must apply the same law that the state court would apply
2. to protect outsiders
3. prevent prejudice for bigger cases where bias might matter bc worth more
Complete Diversity Rule
1. Diversity jurisdiction exists only if all plaintiffs are of diverse citizenship from all defendants.
a. DRAW OUT DIVERISTY CLAIMS.
2. Home field advantage does not exist where there are opposing parties from the same state.
How to Determine Citizenship
People
1. citizenship is determined at the time the case is filed!!!! (adversarial strategy to choose a not in the same state)
2. domicile a person can have only one domicile at a time, and thus can be a citizen of only one state at a time
3. everyone is prescribed a domicile at birth, which is usually based on the domicile of her parents
a. this is retained until it is affirmatively changed (use the last place of domicle if you dont have a current one)
i. Requirements for Changing Domicile:
1. Physically present AND
2. Intent to remain there
a. Courts look at a variety of factors:
i. voter registration
ii. purchase of a house
iii. payment of taxes
iv. in-state college tutition
Corporations 1332(c)
1. state in which it has been incorporation
a. can be incorporated in multiple states
2. state where it has its principal place of business
a. state where headquarters is located OR
b. the nerve center from which the corporate operations are directed by officers and directors
3. Either one of these can destroy diversity
4. Also, this means that a corporation can have citizenship in more than 1 state.
1332(a)(2) if have permanent residence w/green card no diversity if in same state
Mas v. Perry: Found that the couple was only a student of Louisana. Not the domicile. Additionally, the court noted that
although the appellees only amount in controversy requirement is determined by the amount claimed by the in good faith. As a
result, the federal jurisdiction is not lost because a judgment is less than the jurisdictional amount awarded.
Amount in Controversy
1. $75,000 + = at least $75,000.01 (periodically increased in pursuit of inflation)
a. This includes:
i. compensatory damages
ii. punitive damages, unless relevant state law bars punitive damages
iii. maybe attorneys fees in certain cases (ex: civil rights cases)
iv. not costs (ex: filing fees, costs of discovery, etc.)
2. Standard: Plaintiffs good faith claim for more than the amount required controls, unless it appears to a legal certainty that
the claim is really for less
a. Plaintiff controls unless it is quite clear that there is no way that recovery will reach $75,000.01
b. Unless Defending Party shows that there is no legal possibility that the Plaintiff could recover at least $75,000.01
i. How could Defendant show this?
1. liquidated damages
2. damages limited by statute
3. any other legal cap on damages
3. in controversy Where there is legitimate debate as to whether the jury might return a verdict above that amount, the
Congressional mandate is satisfied Court does not have to hear the case
4. Aggregation
a. Rule: Where a single Plaintiff asserts two or more claims against a single Defendant, the amounts may be added
together to reach the required amount. (even if the claims are unrelated)
i. A single Plaintiff cannot aggregate amounts sought from different Defendants. He must meet the amount
requirement against each individually.
ii. Multiple Plaintiffs may not add their claims together to meet the amount requirement, in which neither
party meets the amount requirement
iii. If one Plaintiff satisfies the amount requirement and another Plaintiff does not federal court will have
supplemental jurisdiction over the smaller claim, but only in a case against a single Defendant.
iv. Cannot aggregate when Plaintiff has multiple theories of relief (Ex: Defendant cannot be negligent and act
intentionally)
v. Joint tortfeasors since either might be liable for entire amount, the amount in controversy will be
satisfied against each (>75K goes towards both)
Additional Joinder Rules:
Rule 19: Required Joinder of Parties
b. Designed to look out for someone affected by the lawsuit.
i. Ex: Rocks K w/ mall. Bling K w/ mall. Bling might be an impleader because theyre directly affected by
the lawsuit.
Rule 24: Intervention
The non-party jumps in on their own. Really similar to Rule 19.
Supplemental Jurisdiction
1. Joinder of claim over which there is no independent basis of subject matter jurisdiction
2. The efficiency goals of the Rules favor inclusion of related claims
3. logical relationship between claims the close connection between the original, jurisdictionally proper claim and the
added claim make them part of a single constitutional case
4. 28 U.S.C. 1367
a. 1367(a) giveth jurisdiction if claims forms part of the same case or controversy
i. can add non-subject matter jurisdiction claims to claims that have already been deemed federal
b. 1367(b) taketh away
i. If diversity claim, no subject matter jurisdiction over claims, if claims would be inconsistent with 1332:
Big
1. by Plaintiffs against persons made parties under Rule 14, 19, 20, 24
2. by persons proposed to be joined as Plaintiffs under Rule 19 we didnt study
Pictur
3. when seeking to intervene as Plaintiffs under Rule 24 we didnt study
e
c. 1367(c) Court has discretion not to hear it(even if you make it past A and B)
d. 1367(d) Statute of Limitations is tolled while the claim is pending so that the party has an opportunity to file
suit in state court. Tolled until the case is dismissed or heard.
5. What is same case or controversy?
a. common nucleus of operative fact
6. Breakdown:
a.
b.
c.
d.
Removal
28 U.S.C. 1441(a)-(c);
1. The federal removal statutes allow the Defendant, after the Plaintiff has chosen a state court to second-guess that choice by
removing some types of cases from the state court to a federal court. has to file in federal court, then file a notice
a. Notice motion, it is a document that informs the ct & other parties that the is taking a step it is entitled to take
2. 1441(a) only authorizes removal of state court actions of which the district courts of the US have original jurisdiction
a. Can be removed if it could have brought before a federal court to begin with
b. Exception: 1441(b)(2) diversity case may not be removed if one of the Defendants is being sued in home state
i. b/c no local prejudice against Defendant
3. Amount in Controversy for Diversity Claim
a. 1446(c)(3)(A) information relating to the amount in controversy in the record of the State proceeding, or in
responses to discovery shall be treated as other paper under subsection (b)(3).
i. Thus, receipt of discovery answers or court filings that clarify the amount of damages being sought may
trigger a proper removal later in the case
4. There is only one lonely court that can host a removed action: the federal district court for the district and division embracing
the place where such action is pending in state court ( 1441(a)).
a. Therefore, Plaintiff still gets to choose the state where the action will be litigated.
b. Federal venue provisions do not apply to removed actions.
5. Sever-and-Remand ( 1441(c))
a. The general removal statute applies to cases, not claims. When the Defendant property removes a suit to federal
court, the Defendants entire suit is removed, including supplemental jurisdiction claims.
b. The federal court shall sever any claims not within the original or supplemental jurisdiction of the district court or a
claim made non-removable by statute.
Procedure for Removal 1446(a)-(d);
1. The Defendant or Defendants must file a notice of removal in the appropriate federal district court, together with all
pleadings, process, and other papers on file in the state action ( 1446(a)).
a. Must be filed within 30 days of receiving Plaintiffs pleading ( 1441(b)(1)), OR
b. If the pleading does not need to be served and was filed with the court, 30 days of receiving service of the summons
i. Whichever is shorter.
2. The last defendant joined may try to get the earlier joined s to remove a case, even if the time lapsed for the earlier joined
s 1446(c)
3. A case may not be removed under subsection (b)(3) on the basis of jurisdiction more than 1 year after commencement of the
action, unless the district court finds the s acted in bad faith. 1446(c)
4. State court loses control of the case automatically after filing notice of removal. ( 1446(d)). Fed ct has control unless it
remands
a. s shall give written notice to all adverse parties after filing notice of removal
5. Plaintiff can move to remand in the federal court to remand the case back to state court.
a. If the basis for the motion is failure to comply with procedural requirements (e.g., failure of all Defendants to join in
the notice, or failure to remove within the 30-day period), the motion must be made within 30 days after removal or
it is waived.
b. A motion to remand on the basis of lack of subject matter jurisdiction, however, may be made at any time prior to
final judgment in the case.
6.
If the right to remove is not clear from the face of the complaint, Defendant may have to allege why it exists in his notice of
removal.
a. Removing Defendant can allege in the notice of removal any facts necessary to demonstrate the grounds for
removing the suit 1446(a)
Procedure after Removal 1447(a)-(c)
1. The district court may issue all necessary orders and process to bring all parties 1447(a)
2. Might require removing party to file all records/proceedings w/ state court 1447(b)
3. If there is a defect in removal, must move to remand w/in 30 days of receiving notice 1447(c)
a. If fails to remove for remand w/in 30 days, the waives procedural defect and the case CANNOT be remanded
b. If it appears at anytime the district court lacks SMJ it will be remanded
i. Can happen via sua sponte
Personsal Jurisdiction (In Personam)
Can a party sue this in this state?
1.
2.
5.
d. Holding: Washington has personal jurisdiction over International Shoe. Establishes Specific Jurisdiction
Statutory limitations
a. Every state can pass statutes detailing the situations in which its courts will exercise personal jurisdiction
3. Statutory sources for personal jurisdiction
a. Physical prescence in the forum state when served with process
b. Domcile
c. Consent express or implied
d. Waiver occurs where the acts in a way that is inconsistent with his argument that the forum lacks a basis for
asserting personal jx over him
e. Long-arm Statutes a state law allowing the states courts to exercise jx over out-of-state or nonresident s . Today,
every state has a lon-arm statute.
i. Limited enumerated
ii. Unlimited unenumerated
4. Constitutional Limitations:
a. Internationla Shoe Due process requires that, in order to subject a to a jmt in personam, if he be not present
within the territory of the forum, he have certain minimum contacts with is such that the maintencance of the suit
does no offend traditional notions of fairplay and substantial justice
b. Two Components:
i. Minimum Contacts
ii. Fairness
6. Other Cases
a. McGee v. Intl Life Insurance Co.
i. Facts: McGee () the beneficiary of a life insurance policy held by International Life (). a Texas company,
brought suit in California when International Life refused to pay.CA citizen
ANALYSIS:
purchased insurance from TX company. Court held that CA state court had personal
st
1 -Statutory
jurisdiction over TX company even though the company only mailed the person his
Limits:
ii. Rule: A state may exercise jurisdiction over a defendant whose contacts with that
(1) Longarm
state consist of only a single act, provided that that act is what gave rise to the claim
2nd Constitutional
for which jurisdiction is being sought. and was deliberately directed toward the
Limits:
(1)Minimum
b. Hanson v. Deckla (Purposeful Availament)
Contacts:
i. Woman created trust, executed in DE naming a Delaware bank as trustee,
Purposeful
designated recipients in Fl (retired to FL). Court held that when the trust was
Availment
created, there was no connection with Florida. Court found that the later move to Fl
Foreseeabili
ii. As a general rule, the States exercise of power requires some act by which the
Defendant purposefully avails itself of the privilege of conducting activities
within the forum State, thus invoking the benefits and protection of its laws.
1. s actions must be intentionally directed to the forum state
iii. no jurisdiction over a unilateral activity by the Plaintiff
1. Distinguished from McGee bc there was no instance in which the trustee performed acts in FL, no
purposeful availment
c. Gray court ignores Hanson
i. Plaintiff sued Defendant in Illinois that had negligently manufactured a water heater valve in OH, which
was incorporated in a water heater in Pennsylvania by a different manufacturer. The assembled water heater
was later sold in Illinois and exploded there.
ii. Rule As a general proposition, if a corporation elects to sell its products for ultimate use in another
State, if is not unjust to hold it answerable there for any damage caused by defects in those products.
Illinois Court has jurisdiction (stream of commerce)
d. Asahi Metals Stream of Commerce
i. Facts: motorcycle accident. Plaintiff (injured party) v. Cheng Shin (Taiwan) impleads Asahi (Japan)
stream of commerce case. Plaintiff settles with Cheng Shin. Issue is Cheng Shin v. Asahi in California
Supreme Court.
ii. Rule: No majority decision in rule that governs minimum contact in stream of commerce cases:
1. OConnor
1) placement in stream of commerce PLUS (+) some kind of conduct directed at the forum
State
i. Ex: advertising
ii. OConnor says no personal jurisdiction because not enough minimum contacts
(fails test above).
2. Brennan
1) Mere placement in stream of commerce is enough to constitute purposeful avaiablement
i. Brennan says Asahi passed the minimum contacts test, but failed in the fairness
factors.
2.
1.
7.
8.
9.
c.
d.
i. Physical presence
1. Jurisdiction may not be avoided merely because the Defendant did not physically enter the forum
State, so long as a commercial actors efforts are purposefully directed towards Burger King
Headquartered in FL (a diff state)
ii. Fairness Factors
1. Once it has been decided that a Defendant purposefully established minimum contacts within the
forum State, these contacts may be considered in light of other factors to determine whether the
assertion of personal jurisdiction would comport with fair play and substantial justice.
2. Defendant must present a compelling case that the presence of some other considerations would
render jurisdiction unreasonable.
3. FACTORS: see holding for some analysis
1) burden on the Defendant to the extent that it would be fundamentally unfair
2) forum States interest in adjudicating the dispute
3) Plaintiffs interest in obtaining convenient and effective relief
4) interstate judicial systems interest in obtaining the most efficient resolution of
controversies
5) shared interest of the several States in furthering fundamental substantive social polices
Holding: Court says Rudzewicz is amenable to suit.
i. Contacts:
1. voluntary assumption of a contract with a FL company (not dispositive)
1) Court says this is an intermediate step serving to tie up prior business negotiations with
future consequences which themselves are the real object of the business transaction
(and must be evaluated for minimum contact purposes)
2. terms of contract says (1) FL applies, (2) Payment is due in FL fair notice of suit in FL
3. worked a lot with headquarters in Miami
4(k)(1)(A): serving a summons or filing a waiver of service establishes PJ over a who is subject to the
jurisdiction of a court of general jurisdiction in the state where th district court is located.
e.
10. Long-Arm Statutes
a. Purpose: reach out of the state to call nonresident s back into the state to defend lawsuits.
b. Enumerated:
i. State statutes that authorize the courts to exercise jurisdiction over Defendants based on specific types of
contact with the forum State.
1. Examples:
1) committing a tortious act within the state
2) transacting business in the state
3) owning property in the state
ii. SEE GLANNON ILLLUSTRATIONS
c. All long-arm statutes that based personal jurisdiction on specific enumerated acts require that the claim sued upon
arise out of the act itself!!!!!
d. Two-Step Analysis = Long arm + DP
i. Is there a state statute that authorizes the state court to exercise personal jurisdiction under the
circumstances of the case? (almost always yes)
ii. If there is a statute, would it be constitutional to exercise personal jurisdiction over the defendant? (14th
amendment/real analysis)
1. minimum contacts + fairness factor analysis
***When a has a choice in jurisdictions bc the meets more than one what might the want to consider?
Choice of law settles conflicts of law by stating which state rules govern
General Personal Jurisdiction Jurisdiction arising when a persons continuous and systematic contacts with the forum state enable
the forum states courts to adjudicate a claim against the person, even when the claim is not related to the persons contacts with the
forum state (Far end of sliding spectrum)
at home
1) Goodyear
a. Facts: Brown's () son was killed in a bus accident in France caused by a defective tire manufactured by a foreign
subsidiary of Goodyear (), and Brown brought suit in North Carolina.
b. Issue: Are foreign subsidiaries of a US parent corporation amenable to suit in state court on claims unrelated to any
activity of the subsidiaries in the forum State?
c. Rule:
i. General Jurisdiction
1.
d.
A court may assert general jurisdiction over foreign corporations to hear any and all claims against
them when their affiliations with the State are so continuous and systematic as to render them
essentially at home in the forum State.
a. Continuous-and-systematic contacts test Goodyear subsidiaries do not have
contacts in NC and no affirmative action to have their tires shipped to NC
2. Interest in providing a forum for Plaintiff is not weighed (States interest in protecting citizens)
based on Defendants relationship to forum
a. only in specific jurisdiction could this potentially strengthen the case (fairness factors)
ii. Specific Jurisdiction
1. Depends on an affiliation between the forum and the underlying controversy, principally, activity
or an occurrence that takes place in the forum State and is therefore subject to the States
regulation
2. confined to adjudication of issues deriving from, or connected with, the very controversy that
establishes jurisdiction
a. Bus accident occurred in France and the tire alleged to have caused the accident was
manufactured and sold abroad no specific jurisdiction here (tires not sold in U.S.)
Holding: Court measured against wide gap between Perkins and Helicopteros. It held that Goodyear is in no sense
at home in North Carolina. No general jurisdiction, lacked continuous and systematic contacts w/in the state of
N.C. Court
2) Perkins
a. During WWII, company relocated from Philippines to Ohio and maintained an office there keeping company files
and supervising the company from the Ohio office. Yes General Jurisdiction
b. 100% of business operations take place in forum State
3) Helicopteros
a. US citizens died in helicopter crash in Peru instituted wrongful death action in Texas state court. The Columbian
corporation had no place of business in Texas and was not licensed to do business there. Purchased helicopters,
equipment, and training services for substantial sums in Texas No General Jurisdiction
i. Rule: mere purchases in the forum State, even if occurring at regular intervals are not enough to warrant a
States assertion of general jurisdiction
4) Traditional Bases for General Jurisdiction
a. domicile
b. principle place of business
c. consent
i. appointing an agent for service of process within the State
ii. conduct in litigation (passively, not objecting)
iii. by sanction of the court
iv. contracting to litigate only in a designated forum
1. not dispositive Court must decide whether to enforce contract
d. transient presence (tag jurisdiction) (Gotcha!)
i. Defendant was physically in the State when served with process. Burnham
1. Facts: was served when he went to visit kids in Ca. At the time he was undergoing a divorce
(from NJ). Ms. Burnham filed divorce in Cali custody of children
2. Issue: Is service of process enough to be constitutionally amenable to suit in Cali?
a. Yes, transient jdxn was constitutional notion of fair play and justice
b. Justice Brennan thinks Tagging gives minimum contact but also need fairness factors
(Prof Eichhorn and other justices do not agree)
e. Continuous or substantial in-state contacts
Challenging Personal Jurisdiction Defendants objection to the exercise of personal jurisdiction over him 12(b), (g), & (h)
1) Defendants first option is to appear in the original action at the beginning of the suit and object to the courts exercise of
jurisdiction over her. (Direct Attack)
a. special appearance (common law)
i. Defendant is allowed to appear before the court at the beginning of the action for the sole purpose of
challenging its power to exercise personal jurisdiction over her
ii. If the Defendant is careful to appear specially, she may litigate the jurisdictional question without
submitting to jurisdiction by the very act of appearing before the court.
iii. Defendant must exercise extreme care not to raise any other issue court may construe as a defense
on the merits waived her jurisdictional question
b. Under the FRCP 12(b)(2)
i. Defendant may appear before answering to the merits of the complaint and object to personal jurisdiction
ii. unlike common law Defendant may also raise other objections at the same time, without waiving the
objection to personal jurisdiction.
Defendant can make 12(b)(6) motion at the same time which clearly goes to the merits of the
suit in common law rule, court would hold that the objection to personal jurisdiction has been
waived
c. How the can appeal varies by jx. Some states make you go through the whole trial before you can appeal denial,
others let you appeal denial before moving on to trial.
2) The second option for the Defendant is to ignore the original suit entirely. very risky
a. Traditional procedure Plaintiff files a new action on the judgment in the state where the Defendant is
b. Some states The judgment creditor (Plaintiff) files a certified copy of the judgment in the state where the
Defendant is
i. Full Faith and Credit Clause requires the courts of each state to honor the judgments of other states by
allowing out-of-state creditors to use the court process to collect judgment
c. Exception the state where the Defendant is may always inquire as to whether the rendering state had jurisdiction
in the original action and refuse enforcement if it did not
i. Thus, if the Defendant ignores the first summons and complaint, he will still have an opportunity to protect
his property from being sold for execution of judgment.
1. Defendant can assert in the enforcement action in his State that the other State lacked personal
jurisdiction over him. Collateral Attack
2. Still, Full Faith and Credit Clause does not allow Defendant to reopen the merits of the underlying
action Therefore, if the Defendants state decides that the other State had personal jurisdiction
over Defendant, it will automatically enforce the default judgment
a. The default judgment will be enforceable in any state.
b. vice versa
i. If the Defendants state decides that the other State did not have personal
jurisdiction over Defandant Plaintiff is barred from relitigating the
jurisdiction issue in any other State Collateral Estoppel
1. Full Faith and Credit honoring the holding of the court that reached
the jurisdictional issue
d. Exception Defendant may not challenge personal jurisdiction in the enforcement action if he has already done so
in the original action. (This includes waiving the challenge in the original action by consent, arguing the merits, etc.)
i. Exception to the Exception Most states allow the Defendant, after raising the jurisdictional objection
and losing, to take the safer course of defending the merits and then appealing the decision on jurisdiction.
1. Few states Defendant waives the jurisdictional objection by defending the case on their merits.
common law special appearance
a. theory inconsistent for Defendant to appear and litigate in that court and at the same
time claim that the court lacks jurisdiction over her
1.
c.
a.
b.
c.
d.
When the original venue was proper (a valid choice), but Defendant feels that venue is not fair or convenient and
wants to transfer to another district that would be equally proper
1) In the interest of justice and overall convenience, Defendant can request transfer
1. may be due to burden or expense
2. Defendant is an outsider
Where can cases be transferred?
1) 1404(a) to any district where suit might have been brought
The law of the current district will travel to the new venue!!!
1) Apply same substantive law transferor court would have applied (unless transfer was to enforce a
forum selection clause)
Atlantic Marine
1) Facts: Contract had a forum selection clause. Plaintiff brought suit in a federal district that was proper,
but was not the one named in the clause. Defendant moved to dismiss or transfer (in the alternative).
2) Issue: Does the forum selection clause make this a 1404 or 1406 case?
3) Holding: Court held that contracts are irrelevant to the question of an improper venue. Defendant can
move to transfer under 1404.
1. Court should give controlling weight to forum selection clause (should be enforced) but dont
necessarily have to enforce it.
Erie Doctrine: How does a party know whether state or federal law governs its DIVERSITY claim in federal court?
There is no general federal common law after Erie
Federal courts apply the substantive law of the forum state in which the federal court is sititng.
Any federal case by diversity or supplemental state law
o State law based on choice of law rules for state in which it sits
o Judges job is to apply the substantive law that would have bene applied in the state court had it been heard there
federal ct can send certified question (altho not mandatory the state supreme ct answer)
Not mandatory UNLESS if no controlling precedent and can be determinative for outcome of case
Problems: lengthy and expensive litigation; fed cts determining state Supreme Courts workload
A party did not like the outcome of the litigation. May he or she try again?
Former Adjudication Doctrines
Res Judicata (claim preclusion): When is a party barred from re-litigating a specific claim?
Disallows efforts of a party to re-litigate events that have already been litigated and decided in a prior suit
claim preclusion an affirmative defense
o The says even if you prove it I have a separate and independent reason why I cant be held liable
Defendant could:
o answer complaint (must do an investigation of the claims) raising res judicata
o just make summary judgment or partial summary judgment (more efficient)
Elements of Res Judicata No repeat litigation of claim if:
1. There was a final judgment (includes dismissals and summary judgment)
2. Final judgment was on the merits(with prejudice) 12(b)(6)
not a procedural issue. Refers to the substantive law or lack of all elements met
3. Same claim
same transaction or occurrence
use joinder rules
4. Same parties
one claimants right to relief from one other party
What can an unhappy do?
Appeal (if allowed, normally dont appeal on factual issues)
Rule 50 (JNOV)
Rule 60 (Relief from Judgment)
*this doctrine does have some variation by jx b/c this is a common law doctrine
ex: in some states a 12(b)(6) motion is considered a final jmt, in other states its not.
Collateral Estoppel (Issue Preclusion): When is a party barred from re-litigating a specific issue?
Dissects a lawsuit into its various issues and surgically removes from consideration any that have been properly decided in a
prior action
issue preclusion can be used by defendant as a defense, but can also be used by a Plaintiff (to not be required to provide
evidence on some issue at trial)
o How does a claimant (usu. a Plaintiff) use this? Does not have to re-litigate issues already proven can make a
partial summary judgment motion for issues based on collateral estoppel
Elements Repeat litigation of issue if:
1. same issue
2. actually litigated
3. actually decided
4. necessary for the judgment (determine outcome of case)
why is it necessary? Might not be given as much care to issue and the decision if not necessary