ProceduralDueProcess:

14th(state),5th(federal)
Nopersonshallbedeprivedoflife,liberty,orpropertywithoutdueprocessof
law
Thefocusisnotresultsbutonhowthoseresultsarereached
Itsabalancingtestbetweenfairnessandefficiency.Factorsforfairness:
notice
chancetobeheard
differenttypesofproceduresbasedonwhatisonstake(i.e.libertyv.
monetaryinterest)
neutraldecisionmaker
A.Cases

1.Hamidiv.Rumsfeld
1. AmericancapturedinAfghanistannamedasanenemycombatantandnotgivenatrial.
HabeasCorpusfiled.
a. MathewsTest:Applies to proceedings that threaten the deprivation of a
Constitutionally protected interest, is necessary to protect the 5
th
or 14
th

amendment D/P rights of the potential deprivee
i. 3considerations
1. Importanceoftheprivateinterestbeingprotected
2. veracityinterestcomparativeriskoferroneousdeprivationwithor
withoutadditionalproceduralsafeguards(mostimportant)
3. Natureandmagnitudeofgovtinterestinprovidingornotproviding
theadditionalprocedures(govtefficiencyinterest)
b. AfterconsideringMathewstest,thatenemycombatentmustbeafforded
opportunitytobeheardbyneutraldecisionmaker
i. interesttohamdiishigh
ii. veracityinterestishigh
iii. govtinterestishigh
iv. Pshouldbeaffordedtrialtorebutbutnotafulltrialisneededbasedon
thesefindingstrialhastobesufficientbutdoesnothavetobe
comprehensive.
2. Lassiterv.Departmentofsocialservices
1.Plaintiffsentencedtojailandstateremovedparentalrights,plaintiffarguedsahewas
indigentandthatstateshouldhaveappointedhercounsel.Thecourtheldthattherewasnoper
serighttocounselandconcludedthatappointedcounselwouldnothavechangedtheoutcome
ofthetest.TheMathewsTestdoesntapplytonoticejusttoprocedure.

3.Turnerv.Rogers
1. Plaintifffailedtopaychildsupportandwasheldincivilcontemptandappealedand
arguedrightofcounselbecauseofdeprivationofliberty.
a. Dueprocessdoesntautomaticallyapplytoallindividuals
i. Ifnotsubjecttoincarcerationlawyernotrequired
ii. Ifsubjecttoincarcerationlawyernotnecessarilyrequired
1. Ifothersidedoesnthavelawyerlawyernotrequired.
a. Civilcontemptleadingtoimprisonmentuntilcivilfinepaid.
2. Ifgovernmenthaslawyerlawyerrequired.
iii. Dissent:6thamendmentguaranteetocounselonlyappliestocriminal
proceedings,noneedforMathewsTest.
Notice
Dualcourtsystem
Federalcourts
Rule4:CourtshavefoundFRCP4tomeetmeetfederaldueprocess
requirementsofthe5thamendment.
Noticemustinclude:
Summons(name,place,time)
Complaint(whyyourebeingsued?/whatyourbeingsuiedfor?)
Service
1.Personalservice
mustbeover18
notapartytotheaction
Canusethestateprocedurebutmustbesufficient
underthe14thamendment
2.Leavecopyatthedwellingplaceorusualplaceofabodewitha
personofsuitableageanddiscretionresidingthere.
3.Waivingservice
ifyoudeclinewaiver,youhavetopayforthecosts
associatedwithit
(ex.PwantssueDwhoisparis,PasksDtowaive
serviceanduseemailbutDrefuses.Puses
certifiedmailandotherimaginativewaysto
eventuallygetservicetoD.Disthenresponsiblefor
thecostofgettingservicebecausehedidnotwaive
service)

Statescourts
Reasonablycalculatedtest.
ActualnoticeisnotrequiredBUTnoticemustbereasonably
calculatedunderallofthecircumstancestoappriseinterested
partiesofpendencyoftheactionandaffordthemtheopportunityto
presenttheirobjections.
Pointisnottoensurenotice,buttoensuremethodis
reasonablycalculatedtoensurefairnesswhilemaintaining
efficiency.
TestApplied:
1.Didthepeopledoingthenoticefollowstate
requirements?
2.Iftheydid,didthatprocessviolatethe14thamendment
dueprocessrightsofthepersonreceivingthenotice?
A.Cases
1.Greenev.Lindsay(StateNoticeReasonablyCalculated)
1. Postingnoticeofwritonapt.door,sheriffknewkidsweretearingpostingsoffdoors
a. Postingwasnotsufficientbecausesheriffknewkidsweretearingitoff(contextual
analysis,factspecific)
b. TestApplied:
i. Followedstatelaw.
ii. Statelawviolated14thamendment.

2.Mullanev.CentralHanoverBank(StateNoticeReasonablyCalculated)
1. Beneficiaryoftrustweregivennoticeviapublicationinnewspaper,incompliancewithNY
law.HeldDueProcessclauseprescribesconstitutionalminimumofnotice(publication
didnotsatisfywhereaddresseswereknown).
a. TestApplied:
i. Followedstatelaw.
ii. Statelawviolated14thamendment.

3.Jones.vFlower(StateNoticeReasonablyCalculated)
1. Mailingofcertifiedmailtodefendant,certifiedmailreturnedtosender
a. Senderhadknowledgethatnoticewasgiven,sohewasrequiredtotakemore
measurestoensurenoticewouldbereceived

4.NationalDevelopmentCo.v.Khashoggi,
1. Defendanthasmultiplehouses,courttryingtofigureouthisdwellinghouseorusual
placeofabode.Summonswasleftwithdefendantsmaid.
a. 1.Heldthatitsfallacythateveryonehasoneplaceofresidence
b. 2.Heldthattheremustbesufficientindiciaofpermanence(i.eisitenoughlikehis
hometoindicatepermanence
i. Guyspentalotmoneyonapt
ii. Usedaddressonbailapplication(Nilesfavorite)
iii. Dwaspresentondayofservice.
PersonalJurisdiction
Jurisdictionisthepowerofthecourttoissueajudgementinacasebroughttoit.
Traditionallystateshavepersonaljurisdictionoveranyoneresidinginthestateorwho
couldbefoundinthestate,andanypropertylocatedwithinthebordersofthestate.
Threetypes:
InPersonam
PhysicalpresenceofDinstateA.
InRem
Seizureorattachmentofpropertythatisinthestateinorderto
securecompensationforanydisputeconcerningthatproperty
(lawsuitarisesoutofthatproperty).
QuasiInRem
Attachmentofalegalleintothepropertybutisusedtoprovide
potentialcompensationfordisputethatdidnotinvolvethatproperty
(lawsuitDOESNOTariseoutofthatproperty).
ExtraTerritorialPersonalJurisdiction(SuitofPinstateAagainstDinstateB)
Traditionallyviolatedthe14thamendment(SeePennoynerv.Neff)
ModernJurisdiction
FairtoassertextraterritorialPJoveroutofstateDsiftheyhaveeither:
SystematicorContinuousContactsGeneralJurisdiction
MinimumContactsSpecificJurisdiction
ContactswhichallowDtoenjoythebenefitsand
protectionofthelawsofthatstateandthatgiveriseto
obligationsthatmakeitfairfortheDtobesubjectto
jurisdictionthere.
Twowaystreetrule.
TypesofCases:
StreamofCommerce
MC+Factors:
OnlymatterafterMCisestablished.
ForumStateinterests
Plaintiffsinterestin
convenienceandeffective
relief
InterstateJudicialSystems
interestinlitigation
(Unimportant)
Sharedinterestsinthe
severalstatesofsubstantive
socialpolicies(Unimportant)
Contracts
TraditionalPresence
Internet
Long Arm Statutes: State rules for when a state has PJ over an out of state
resident.
2 Kinds of LAS
1.1 step or straightforward LAS: States have as much jurisdiction
over out of state individuals as the constitution allow.
2.2 step LAS or limited: States has some restrictions on its own use
of PH over extra ter. 1) Determine if LAS applies; 2) Constitutional
evaluation.

A.TraditionalCases.
1.Pennoynerv.Neff
1. Lawyersuesforlegalfees,NeffwasnotresidentofOregon,lawyersellsNeffslandto
satisfyjudgment,Neffsueslandbuyer.
a. Held:Nostatemayexercisejurisdictionoverapersonorhispropertyresiding
outsideofitsterritory.Propertywasnotattached.Because:
i. Infringesonstatesovereignty
ii. Violatesthe14
th
Amend.SinceDspropertywasgoingtobetakenaway.
Disnotexpectingthesuit.Notfair,Ddidnotanticipatethesuit.[Note:this
wasrevolutionary.]
2.InternationalShoe
1. BusinessincorporatedinDE,principalplaceofbusinessisinSt.Louis,salesmanwere
inWAunderdirectionofSt.Louismanagment.Salesmanhadtemporaryshowroomsin
WA,nostockinWAandonlyhadasingleshoeinWA.Dbroughtsuitagainst
Internationalshoeforviolatingstatestatute(stateinsurancefundcontributions).
a. Held:I.S.hadsystematicandcontinuouscontactwithWA.Notes:
i. RecievedrevenuefromWAoffice
ii. Rentedspaceinthestate
3.Hansov.Deckler
1. PennsylvaniaresidentwithaDEtrustcompanymovestoFlorida.Detrustcompany
continuestoperformtrusttasks,residentinFLdies,partysuingtrustwantsjurisdictionin
FL.
a. Unilateralactivitycannotsatisfythecontactrequirements
b. Dmusthavepurposefullyavaileditselfofconductingactivitiesintheforumstate
toinvokebeneiftsandprotectionsofthestate
i. butinthiscaseresidentunilaterallymovedtoFLandtherewasnoactby
trusttopurposefullyavailitselftoFLlaws.

4.Kulkov.SuperiorCourt
1. DivorceinNY,kidandmothermovetoCAandsuitforchildsupportfiledinCA.
a. Purposefulavailmentmeansmakingachoicetoavailitselftolawsandbenefitsof
thestate.

B.StreamofCommerceCases
1.WorldwideVolskvagenv.Woodson
1. LawsuitoverexplodingcarinOk.originallypurchasedinNY.
a. Held:ForeseeabilityalonehasneverbeenasufficientbenchmarkforPJunder
DPclause.
b. Thetruequestion:Shouldthedefendanthavereasonablyanticipatedtolitigate
mattersintheforumstate?
c. ItisforeseeablethatthepurchasersofcarssoldbySeawayandWWVEmay
takethecarstoOK,butthemereunilateralactivityofthosewhoclaimsome
relationshipwithanonresidentDcannotsatisfytherequirementofcontactwith
theforumstate.

2.Keatonv.Hustler
1. HustlerOhcorp.headquarteredinCali.issuedbyNYresidentforlibelinNewHamsipre.
OnlyconnectionbetweenHustlerandNewHampshireisthat10,000copiesweresold
monthlyinNewHampshire.
a. Regularcirculationofmagazinesintheforumstatewassufficienttosupport
jurisdictionbecausemonthlysalestostatecannotbecharacterizedasrandom
isolatedorgratuitous.

3.Ashaiv.SuperiorCourt
1. VictiminjuredinmotorcyclecrashandsuedTaiwaneseCo.claimingfaultytiresandthen
theTaiwaneseCo.suedaJapanesecompanythatwasacomponentmanufacturerthat
soldpartstotheTaiwaneseCo.thatwasusedtomakethemotorcycle.Held:Alljustices
agreePJunconstitutionalconsiderMC+1factorsSlightstateinterest,slightP
interest.Pluralityopinions:
a. OConnoropinion(needsintent),awarenessisnotenoughandneedspecific
evidencetosuggestthatcompanyintendedtoservethemarketsuchas:
i. Productwasdesignedformarketintheforumstate
ii. advertisingintheforumstate
iii. establishedchannelsforprovidingregularadvicetocustomersinthe
forumstate
iv. Marketingtheproductthroughadistributorwhohasagreedtoserveasthe
salesagentintheforum.
b. Brennanopinion(awarenessisenough)
i. lowerstandardthanWorldwideVolkswagen.

4.McIntyreMachinery,Ltd.v.Nicastro
1. NJplaintiffinjuredwhileusingmachinemanufacturedbyenglishcorporationthatwas
soldbyanexclusiveUSdistributorthroughconventions.Nomorethanfourmodels
presentinNJattimeofinjury.
a. Kennedyopinion(intentnotexpectation,rejectsBrennanAsahiopinion)
i. Needstobesovereignbysovereignanalysis,Dmaysubjectedtothe
jurisdictionoftheUSbutofnotanyparticularstate.
ii. DangersofForeseeability(i.e.smallFLfarmersellstolargerdistributor
whothensellsyourproducttoAlaska)
b. BreyerandAlitoconcurrence
i. Maybefundamentallyunfairtorequireasmallmanufacturersellinghis
productthroughinternationaldistributorstorespondtoacaseina
particularstate.(Kenyancoffeefarmersellinghisproducttoan
internationaldistributor
ii. Casebycasecontextualanalyses.
c. GinsburgDissent
i. EvenusingOConnorstandardsinAsahipersonaljurisdictionshouldbe
found.

C.ContractCases
1.BurgerKingv.Rudzewicz
1. DmichigangrantedBKfranchiseinMI,failedtomakefranchisepayments,BKsuedfor
breachofKinFL.DclaimedlackofPJinFL.
Held:DpurposefullyestablishedminimumcontactswithFLbecauseKandDbehavior
showedintentbyD.
DreachedouttoFLcorporationBKtoestablish20yearfranchiseK,agreement
wasenforcedfromFL,sentmoneytoFL,FLchoiceoflawprovisioninK,
communicatedregularlywithFLheadquarters
CourtstressedCasebycaseanalysis,Dwasanexperiencedbusinessmanas
hewasaCPA,andthatacasebycasesanalysisexaminationshouldbeused.

MCandTraditionalNotionsofPJ
1.Schafferv.Heitner
1. PsuesGreyhoundinDE.foractscommittedinOr.Pfilesforanorderofsequestration
ofstock(quaisiinrem)forDsinPhoneix.
a. QuasiinRemruledunconstitutional,failstomeetMCstandards.
b. MCdeemednecessarynotjustsufficient,MCanalysismustbeappliedtoall
formsofpersonaljurisdiction

2.Burhanmv.SuperiorCourt
1. DservedwithprocesswhilevisitngdaughtersinCa.
a. ScaliaOpinion:
i. 4 votes: No MC for in personam
1. TraditionalPJformofcannotoffendtraditionalfairplay
ii. 3 votes: No MC for all traditional forms of asserting PJ
b. Brennan:ShaffersubmitsallrulesofjurisdictiontocontemporarynotionsofD/P.
MustapplyMCtothiscase(4votes)(i.e.DusedCaliroads,hadaccessto
emergencyservicesinCali,soPJisok)

3.GoodyearDunlapTiresv.Brown
1. TwoboyskilledwhenbusoverturnsinFrance.ParentssueforforeignsubisdariesinNC.
SubsidiariesarguestatelackedPJ.
a. Held:ClaimdidnotarisefromcontractsinNC,soNCcourtsrequiredGeneral
jurisdiction
b. Youcan'tassertgeneraljurisdictionforaStreamofcommercecase,onlyfor
specificjurisdiction.

.D.InternetCases
1.Zippov.Zippo.com
1. Ca.corporationoperateswebsitewith3,000subscribersinPa.,ZippoManufacturing
sueinPafortrademarkdilution.(activelyexchangedandtransactedrepeatedly,soPJ
wasok)
a. Slidingscaleofwebpresence.3categories
i. 1.KnowingandRepeatedtransmissionofcomputerfilesovertheinternet
orknowinglyandrepeatedlyengagingincommerce(PJisproper
a. (ex.Amazon.com)\
ii. 2.Usercanexchangeinformationwiththehostcomputer,(casebycase,
dependsonnatureandqualityofinformationtransmitted)
iii. 3.PassiveWebsite(nominimumcontacts)
1. (ex.Shipleydonuts)
b. Salesanduseofthewebsitearesubstantialindicatorsofdeterminingifwhetherit
risestothelevelofgeneraljurisdiction.

E.SubjectMatterJurisdiction
Constitutiongivesfederalgovtexpressauthoritytopasslawsregardingcertain
topicsandaspectsoflife(interstatecommerce,taxation,intellectualproperty,and
manyothers)anditslawsapplyintheallthestatesevenifthestateshave
contrarylaw
Butitalsosaysthateverythingthatthefederalgovtisnotgiventhe
expressauthoritytolegislateaboutislefttothestatestodecide
Thisbalanceisknownfederalismandpursuanttothebalance
federalauthoritycanbeusefullythoughtofas:LIMITEDBUT
SUPREME
Statecourtsarecourtsofgeneraljurisdiction
Federalcourtsarecourtsoflimitedjurisdiction
Thequestionisalways:CanthisclaimbefiledinFederalcourtsormustitbefiled
inStatecourts?
CentralConcerns:
Federalism
Efficiency
Twowaysintofederalcourt:
DiversityJurisdiction(28USC1332)
FederalQuestion(28USC1331)
Ifneitherispresentthenclaimcannotbebroughtinfederalcourts.
Diversity(28U.S.C.1332)
Completediversity(domicile)
DomicileForPeople:
Stateofcitizenshipwheretheyliveandintendtostay.
DomicileforCorporations
Stateofincorporationandstatewheretheirnervecenteris.
Diversityisdeterminedattimecaseisfiledoesntmatterifparties
becomeundiverseafterfilingthecase
Casecannotberemovedtofederalcourt,onthebasisofdiversity,whenit
isfiledinDshomestate.
AmountinControversymustexceed75,000
Onlywherethejudgelookingatthepleadedfacts,concludestoa
legalcertaintythattheplaintiffcouldonlybeawardedlessthan
75,000,istherequirementnotmet
Diversityjurisdictionisnotexclusive
IfPcanfileinfederalcourt,shemaystillchoosetofileinstatecourt.
HOWEVER,theDcanhavethecaseremovedtofederalcourtifshe
wantstowithonebigexception
THEEXCEPTION
Ifcaseisbroughtinstatecourtthatisthehomestate
ofD,Dcannotremovecasetofederalcourt.
RATIONALE:HomestateDwouldnothavebiasissueinthe
exceptionsituation,socannottakeadvantageofmovingcaseto
federalcourt.
ExceptiononlyappliesindiversitySMJcasesanddoesnotapply
whenbasisofSMJisFQ.

DiversityCases
1. Mass v. Perry
1. P were married couple and were students and sued landlord in federal court in La. .,
wife from MS., husband from France. D alleged Ps were not diverse
a. Domicile is initially where you were born (to change you must move with
intention to remain, when you move to attend school your not moving for
personal residence). Indications to establish domicile:
i. Buying a house
ii. Paying income tax
iii. Drivers license
iv. Registering to vote.

2. Tanzymore v. Bethlehem Steel
1. P claims to be domiciled in Oh. but provided no evidence of such. Party seeking diversity
has burden of proof, you must provide of domicile

3. Hertz v. Friend
1. Ca Employee sues Hertz for not conforming to Ca. wage law, and Hertz moves to transfer
case to fed. court claiming diversity. District court finds that Hertz to be a Cali co. due to
the amount of business (plurality of activity not majority). Hertz appeals.
a. Held: Corporations are citizens where they are incorporated and where their
nerve center is located (i.e headquarters provided that headquarters is the actual
center of direction, control and coordination and not simply an office where they
hold their board meetings)


Governing law in diversity cases

Substantive Law:
Rules which deal with peoples lives in the world.
Torts, Contracts, Property.

Procedural Law:
Rules which outline how to take legal action.
Civil Procedure.
Rules of Decision Act 28 USC 1652
The laws of the several states, except where the Constitution or treaties of the United
States or Acts of Congress otherwise require or provide, shall be regarded as rules of
decision in civil actions in the courts of the united states in cases where they apply.
Authority for all subsequent standards is derived from this.
Swift v. Tyson (1842)
Interpreted law of the several states to apply to ONLY state constitutional and
statutory law.
Held Federal courts should apply Federal Common Law instead of state common law:
Why?
Create uniform interpretation of Federal common law.
Assist out of state parties.
Federal judges were considered more competent
Realists v. Formalists
Formalists:
Viewed law as an unchanging natural science.
Realists:
Viewed law as shaped by society and its interpretation.
Impacts of Swift
Federal common law (FCL) favored business
FCL resulted in forum shopping
FCL denigrated authority of states
FCL led to inconsistent substantive law
Corporate forum shopping disadvantaged individual litigants
Under Swift:
State statutory law (substantive)
Federal common law (substantive)
State procedural law




Rules Enabling Act and Federal Rules of Civil Procedure (FRCP) (1934)
Gave Supreme Court the authority to prepare uniform procedural rules for federal
courts
Did two important things
1. Freed the federal courts from state procedural rules, and provided a truly
national court system for the first time: a uniform court system where
federal courts in every state would apply the same procedural rules
2. led to creation of large national law firms

Erie Doctrine
Swift created real world problems, needed to be addressed
Swift deemed unconstitutional, proved to be the main reason for why it was overturned
(i.e. Swift failed to achieve main goals of general common law)
Unconstiutionally of Swift
1. federal common law is not a power by delegated by the Consitution under the
10th amendment
Erie Doctirne has two parts
Easy Erie:
Federal courts sitting in diversity will apply state substantive law (be it
statutory or common law) and federal procedural law (from the FRCP)
Hard Erie ( underlying problem in Erie)
There are some procedural rules that are substantive in nature (this issue
gets resolved by other cases)
Post Erie Cases
1. Gantry Trust v. York
1. Is statute of limitations procedural or substantive law?, court establishes outcome
determintive rule
i. York says the outcome of the litigation in the federal court should be
substantially the same, so far as legal rules determine the outcome of a
litigation, as it would be if tried in State court

ii. Cohen v. Beneficial Indus. Loan Corp (1949) (which party will pay costs of
litigation held to be outcome determinative, and therefore substantive)
iii. Ragan v. Merchants Transfer (1949) (rules for when a complaint is
considered filed for statute of limitations purposes held to be
substantive, court required to apply state rule)
iv. Woods v. Interstate Realty Co. (1949) (rules for the kind of corporation
who could file suit under state law found to be substantive)
1. These were all clearly procedural rules, that were deemed
substantive because they altered the outcome
2. Bird v. Blue Ridge
1. This case emphasizes balancing the outcome determinative test with constitutional
protections
a. When there is conflict between state and federal law and federal law is on point
about the procedure to apply, federal law should be used
i. Supremacy clause allows for this

3. Hanna v. Plumer
1. P served in accordance with FRCP 4 and MA has special rule with how to serve executors
of an estate ,P argues MA, not FRCP, should apply
a. 2 prong Hanna Approach:
i. 1. When in Fed. Court, use FRCP
ii. 2. If a state and fed rule conflict, ct should determine if application of the fed
rule instead of the state would change the outcome.
a. If so, court should not follow the federal rule if the application would
encourage forum shopping as a result of the non-uniform application.

4. Shady Grove (when exactly do FRCP control issues in the case?)
1. P provides med. care, insurance didnt pay within statutory required time, district court holds
that statutory interest is a penalty under ny law and precludes class action in fed. court.
a. Plurality (4 votes; Scalia): FRCP should be applied when it answers question in
dispute, it should not be invalidated when it conflicts with contrary state law.
b. Dissent (4 votes; Ginsburg): FRCP should be interpreted moderately and should be
interpreted moderately and should not be stretched to cover every situation it could
conceivably reach, it should be reads as not encroaching on the subject matter of
state rules whenever possible; contrary federal rule should be should be applied only
if it creates an inevitable collision with the relevant state rule

F. Federal Question
Article 3 section 2 (judicial power of fed courts should extend to all cases in law and
equity arising under the constitution)
28 USC 1331 - The district courts shall have original jurisdiction of all civil actions
arising under the constitution, laws, or treaties of the United States
Original jurisdiction does not mean exclusive jurisdiction - except as
expressly provided, claims arising under federal law can be filed in state courts
too (just like claims for which there is diversity jurisdiction)
2 types of Federal Question
1. Direct
Federal law creates the cause of action
Im entitled to relief because you violated(insert federal law,
i.e. Civil Rights Act)
2. Indirect
Seeking relief pursuant to state law cause of action that requires
resolution of a federal legal issue to determine P is entitled to relief
Well Pleaded Complaint Test:
In order to have a well pleaded complaint under indirect
federal question you must include a federal law upon
whose interpretation the outcome depends.
Im entitled to relief because you breached our
contract, you breached our contract because of this
federal law.
Even if state law creates Ps cause of action, the case might still arise
under the laws of the U.S. if a well-pleaded complaint established that
its right to relief under state law requires resolution of a substantial
question of federal law in dispute between the parties.

Well Pleaded Complaint Cases
1. Franchise Tax Board v. Construction Labor
1. Well pleaded complaitn rule applies to all cases

2. Mottley
1. P has lifetime railroad pass, congress act forbids issuance of lifetime rail passes, P sues
D. P says act didn't apply to passes and that it violates 5th amendment
a. In order to bring into federal court federal law must create Plaintiffs cause of
action, irrelvant if Defendant relies on federal law in his defense

Private Right of Action Cases
In order to bring a case, you must have:
1. Theory of relief explaining why P is entitled to relief
2. private right of action
1. Merrel Dow
1. P sues in OH state court, complaints founded on 5 state common law theories and one
federal branding statute, no federal cause of action for violation of the branding statute.
D files to remove case to federal court. Held: Fed. court has no jurisdiction over state
law cause of action because the fed. issue was not substantial enough because no
private right of action was granted by statute
2. A federal issue that is raised as part of a state law cause of action is a substantial
issue of federal law if resolution of the case requires resolution of the federal issue
AND the federal law in question provides a private right of action
a. A law has a private right of action if a private P can file a claim seeking relief for
violation of the federal law
2. Grable
IRS seized property belonging P to satisfy back taxes. After giving notice certified mail, IRS sold the
property to D. 5 yrs later, P filed a motion to quiet title in state court, alleging that he did not receive
proper notice of the sale because he was served in the manner required by 26 U.S.C. 6335. D moved
the case to fed crt, arguing that the case required interpretation of fed tax law but the fed tax law
does not provide a private right of action under this act.

b. Congressional intent is relevant but not dispositive. The claim meets the requirements
of the WPC rule if a state-law claim necessarily raises 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. [Under
Merrell Dow, a private right of action is sufficient not necessary.]
i. If allowing this type of case into court would overwhelm federal court system,
then it wont be allowed in.

3. Alexander v. Sandoval
There is no more implied private right of action anymore (difficult to imagine circumstance where it
would now be present).

Supplemental jurisdiction

1367 (a)
Except as provided in subsections (b) and (c) or as expressly provided otherwise by a
Fed Stat, in any civil action of which the Dist Crt have original jurisdiction, the Dist Crts
shall have supplemental jurisdiction over all other claims that are so related to the
claims in action.
All civil actions in which the district court has original jurisdiction has
supplemental jurisdiction over claims related to the same facts
This is both additional claims AND additional parties.
1367 (b)
In any civil action of which the district courts have original jurisdiction founded
solely on section 1332 (DIVERSITY JURISDICTION) of this title, the district courts
shall not have supplemental jurisdiction under subsection (a) over claims by
plaintiffs against persons made parties under Rule 14 (Impleader), 19
(Mandatory Dismissal), 20 (Permissive Joinder), 24 (Intervention) of the FRCP or
over claims by persons proposed to be joined as plaintiffs under rule 19 of such
rules,...
Applies only to diversity cases
Persons made parties do not have to be made parties by the P - can be
made parties by D
Was designed to prevent collusion against Ds with imperfect diversity.

a. Exxon Mobile v. Allapattah Services (AMC can be waived): S.C consolidated 2 cases. Exxon
Mobil, class action of Exxon dealers suing Exxon. Some dealers damages did not rise to AIC
requirement. Ct. of App. allowed joinder, so long as at least one plaintiff met the AIC. 2
nd
case, girl
sued Starkist b/c she cut herself on can. Girl tried to join her parents as Ps. Ct of App. held that
parents damages were below AIC and therefore could not be joined, girls damages were sufficient.
Held:
1. Where the other elements of jurisdiction are present and at least one named P in the action
satisfies the amount in controversy requirement, 1367 authorizes supplemental jurisdiction
over the claims of other Ps in the same article 3 case or controversy even if those claims are
for less than the jurisdictional amount specified in the statute setting forth the requirements
for diversity jurisdiction as long as the additional Ps are diverse from the D.

When it maters:
1. P1 (50) + P2 (30) D1 (NO)
2. Claim 1 (80) + Claim 2 (30) D1 (YES)
3. P1 (50) D1; P1 D2 (50) (NO)
4. P1 (100) + P2 (50) D1 (P2 claim ok) This is Exxon

Joinder of Claims and Parties
1. Rule 20: Permissive Joinder of Parties
20a (1) Ps authorized to sue together if it arises out of same facts and if there is any
question of law or fact common to all Ps.
i. If the first prong is met the second prong is most often met as well, because it
requires identical discovery procedure. The inverse is not true, if first is not
proven if the second is.
20a(2) Ps can sue multiple Ds if claims arise out of same facts
What does it mean to arise out of the facts?
Mosley v. GM: 10 Ps sue GM & Union for race discrimination. Dist Court held that the
first 10 counts be severed into separate actions and brought individually by Ps. Dist Ct
held there was no question common to all Ps to sustain FRCP 20(a).
i. Held: Ps meet requirements under 20(a) because Ps injury arose out of the
same general policy of discrimination by GM and the union.

2. Rule 14: Impleader:
Timing of the Summons and Complaint: A defending party may, as a 3rd party
plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it
for all or part of the claim against it.
Direct liability is not permitted (See Toberman) as it is not a denial of guilt, denials of
guilt would belong in the response to the pleading as an affirmative defense.
Two common basis:
i. Indemnification (if im liable, they owe me)
1. Example: Insurance claims.
ii. Contribution (if im liable, they are also liable)
1. Example: Joint and several liability.
c. Toberman v. Copas: Ps sued several Ds alleging negligence. One of the Ds filed a
third-party suit against another party, alleging that they were directly and wholly
liable to the P. Held: This is a defense, not a proper use of Rule 14 Impleader.
d. United State v. Grasso: P sues USG for return of taxes. Gov bring 3rd party complaint
against boat captain, saying that if P can disprove Govs allegation, fishermen were
the true employers.
- Only valid in binary liability situations (ex: either me or them).

3. Rule 24: Intervention
Intervention of Right/Compulsory Intervention (Must NOT may, on timely motion)
(1): Statute authorizes intervention, OR
(2): If a party:
i. Claims an interest relating to the subject matter of the claim. AND
ii. That interest may be impaired if the person is not allowed to participate in
the case. AND
iii. The absentees interest is not adequately represented by those already
parties to the action.
Note: Interventioncannotcreatejurisdictionwherenoneexistsasintervention
presupposesanactiondulybroughtandcannotcuretheviceintheoriginalsuit
andmustabidethefateofthatsuit.
i. American Lung v. Reilly: P sues EPA b/c Clean Air Act was required to review
air quality standards. Dist Crt denied motion of electric utility companies to
intervene.
a. Held: Utilities will have the ability to challenge defects and
EPA can represent their interest.
b. Court Analysis of 24a(2):
i. The utility interest was based on a double contingency
of events P prevails in lawsuit and then D
downwardly revise air quality standards so the
utilitys interest was too remote from the subject
matter at proceeding
ii. The utility could participate in any air quality standard
decision making ordered by the court - so a judgment
in favor of the P would not impair utilitys ability to
challenge any defect of any subsequent rulemaking.
iii. The utilities were represented adequately by the EPA
in their interests - so the movants interest was
adequately represented by existing party and
consideration not merited for Rule 24a2.
Permissive Intervention (May NOT must, on timely motion)
i. Court may allow anyone to intervene who:
1. (a) is given a conditional right to intervene by a federal statute; OR
2. (b) has a claim or defense that shares with the main action a common
question of fact or law.
4. Rule 18: Joinder of Claims
A party asserting a claim, counterclaim, cross claim, or third-party claim may join, as
independent or alternative claims, as many claims as it has against an opposing party.
P bring multiple claims against a D.
All must abide by diversity of Fed Question.
5. Rule 13:
(a) Compulsory Counterclaim
i. A pleading must state as a counterclaim any claim that - at the time of its
service - the pleader has against an opposing party.
(g) Cross-Claims
i. A pleading may state as a crossclaim any claim by one party against a co-party
if the claim arises out of the transaction or
ii. occurrence that is the subject matter of the original action or of a
counterclaim.

IV. Pleadings
Pleadings are the papers filed by parties in our federal courts that form the basis of a
legal dispute
2 types of pleadings
Complaint
Answer
Issues fixed by FRCP:
British system there were separate courts for law and equity which forced choices.
Common law writs and forms of pleadings
Writ system had draconian forms of pleadings
You filed your lawsuit and provided the evidence to support your
lawsuit in pleadings.
FRCP created in 1938
Did 6 things:
(1) To promote just, speedy and inexpensive resolution
no more distinction between law and equity
Could get more than monetary relief.
Allowed for introduction of discovery process.
(2)Created singular pleading form of action no matter the resolution sought
(3) Allowed for liberal amendment of pleadings.
(4) Liberal provision for joinder of claims and parties
(5) Comprehensive discovery procedures
(6) Simple provisions for appeal
Central change was Rule 8:
Introduced notice pleading: All that was required was that the D be put on
notice of the Ps allegations - no longer had to demonstrate/prove/bring facts
only allege what you think they did.
Argument against rule 8 was frivolous claims and that discovery was
expensive and time consuming.
2007 amendments to FRCP
They found notice pleadings to be expensive during discovery process.
Stylistic amendments
simplified language but didnt change rules
Substance amendments
changed substantive meaning if only slightly
The Complaint
8 (a) Claim for Relief must contain:
Short and plain statement of the grounds for the courts jurisdiction.
Put whether diversity or Federal question - if FQ good:
Also claim and prove there is a private right of action
Example Complaints:
a.For diversity-of-citizenship jurisdiction. The plaintiff is [a
citizen of State A] [a corporation incorporated under the laws
of State A with its principal place of business in State A]. The
defendant is [a citizen of State B] [a corporation incorporated
under the laws of State B with its principal place of business in
State B]. The amount in controversy, without interest and
costs, exceeds the sum or value specified by 28 U.S.C. 1332.
b.For federal-question jurisdiction. This action arises under
[the United States Constitution; specify the article or
amendment and the section] [a United States treaty; specify]
[a federal statute, ___U.S.C. ___]
Under indirect federal question state the state law
that requires resolution of underlying federal issue
and specify location of underlying federal issue.
Short and plain statement showing that the pleader is entitled to relief.
conley and american nurses
Specific demand for relief sought.
say what you want - damages, injunctive relief, etc.
Conley v. Gibson
1. Railroad discharged 45 black workers and hired white employees as replacement.
Some employees were rehired but lost seniority, black workers sued employers
alleging discrimination. D filed motion to dismiss
a. Held: Complaints should not be dismissed under 12 (b)(6) unless beyond a
reasonable doubt that p can present no facts to support his claim.
i. Analysis: P alleges discriminatorily failed to represent them if true it
amounts to racial discrimination.
1. Dont need specific facts - just allegations - in order to give Ps
accessibility to discovery
a. opposing argument is then that this opens up frivolous
claims that bring about expensive and time consuming
discovery
American Nurses
a. Nurses file class action lawsuit alleging sexual discrimination due to pay discrepancy,
specifically paying men employees more than their female counterparts.
b. Holding: Two things:
Complaint should not be dismissed because it contains invalid claims along
with valid ones
Conley should not be taken literally for it would permit dismissal of only
frivolous claims

Bell Atlantic v.Twombly
P sues Ba for violation of Sherman Act, complaint alleges Pa conspired by parallel conduct to
inhibit competitors and eliminate competition
Rejects Connoley without a doubt because of efficiency concerns
Did so due to time consuming nature of discovery process.
Imposes plausibility standard
Complaint must state enough facts to raise reasonable expectation that
discovery will reveal evidence to support Ps claim
A plausible explanation is necessary but not a probable outcome
Erickson v. Pardus
Case decided 18 days after Twombly, put Twombly outcome in doubt until Iqbal.
Seems to allow for relaxation of new standard (return to Conelly) in cases of Pro Se
representation.

Iqbal v. Ashcroft
P detained post 9/11 sued Ashcroft and Mueller for violation of 4 and 5 amendment
and Ds claimed qualified immunity and moved to dismiss
Holding: 1)Made clear that Twombly standard applied to all complaints
filed under Rule 8
2)Said that factual assertions do not provide a plausible indication of
entitlement to relief if there is an equally probable explanation for the
action that would NOT entitle the P to relief (insists on saying that it is not
applying a probability requirement)
More likely than not
Post Iqbal Cases

1.Sanders v. Grenadier (harsh interpretation) p.363: Makes clear notice pleading is dead. While
complaint does allege facts consistent with discrimination, i.e. that non-black residents were granted
subsidies, it stops short of the line between possibility and plausibility of entitlement to relief.
2.Braden v. Wal-Mart Stores (less Harsh): Plausibility standard requires a P to show success on the
merits is more than a sheer possibility but does not require P to plead specific facts or precisely how Ds
conduct was unlawful. Rule 8 does not require P to plead facts tending to rebut all possible lawful
explanation for a Ds conduct.

Responses to the Complaint
Use it or lose it rules:
If D doesnt assert defense or argument at proper time she is prevented from doing it
at any future time.
3 Options when served with complaint:
1. Pre-answer motion
2. Answer
3. Counter Claim
FRCP 12(b) Pre-Answer Motion
Every defense to a claim for relief in any pleading must be asserted in the responsive
pleading if one is required. But a party may assert the following defenses by motion
(exclusive list):
i. No SMJ
Not waivable (as it is defined by the power of the court)
ii. No PJ
Waivable
iii. Improper venue
Waivable
iv. Insufficiency of process (Summons or complaint is insufficient in some way)
Waivable
v. Insufficient service of process (attacks the manner in which the complaint was
served)
Waivable
vi. Failure to state claim upon which relief can be granted
Not waivable (as it is defined by power of the court)
vii. Failure to join a party under Rule 19
If granted the case dies


12E motion
D files this when needs a more definite from the P as the claim is too vague.
12F motion to strike
Allows D to as for removal of immaterial, redundant, or scandalous material from the
complaint
This is not for anything other than ridiculously harsh or rule or scandalous/offensive
things that are in the complaint.


Waiver of Defenses
1.Waiveable: PJ, Venue, Process, Service of process. If D fails to raise one of these in the initial
response, she has waived the omitted defense.
2.Non-Waivable: Lack of SMJ, failure to state a claim upon which relief can be granted. Can be
brought later.
if any of the pre-answer motions are denied, D must respond within 14 days.


a. FRCP 8(b) Defenses; Admissions and Denial
(1) In General: In responsible to a pleading a party must:
1.(A) State in short and plain terms its defenses to each claim asserted against it; and
2.(B) Admit or deny the allegations asserted against it by an opposing party.
ii.(2) Denials Responding to the Substance. A denial must fairly respond to the
substance of the allegation.
iii.(3) General and Specific Denials. A party that intents in good faith to deny
all the allegations of a pleading including the jurisdictional grounds may 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.

b. Examples of Responses to a Complaint:
1. Deny factual allegations of the complaint 8(b)(answer)
2. Confession and avoidance: Concede facts are true and even that the law would
provide P to relief, but asserts other facts or law that provide D with an out. i.e:
Statute of frauds. 8 (c)(answer)
3. Movant accepts facts, but insists law doesnt support the claim 12(b)(6) (pre-answer
motion or answer)
4. P may have chosen wrong court system 12(b)(1)-(3) (pre-answer motion or answer)
5. Counterclaims 8(c)(2) (answer)
6. Defects of the complaint 12(g) and 12(h) (pre-answer or answer)



1. Funetes v. Tucker
D kills Ps son while driving, D admits liability, P introduces evidence relating to the accident
itself. Since liability had already been admitted and only damage calculation remained the
information was not relevant.
Holding: Party must not present evidence of an issue that has already been resolved
in the pleadings.
Pleadings define the scope and extent of what is allowed at trial.

2. Zelynski v. Philidelphia Piers
D injured by forklift complaint states that forklift was owned and operated by D, company had
already transferred ownership to another company at the time of the accident. D makes
general denial but does not specifya company transfer order. P moves to estop D from
denying facts from complaint
Holding: D must reply clearly specifically and factually to the complaint.

Affirmative Defenses
Categories of Affirmative Defenses
8(c) List (pg 411-12)
Situations that would lead to unfair surprises.
FRCP 8(c)(c) Affirmative Defenses.
(1) In General. In responding to a pleading, a party must affirmatively state any
avoidance or affirmative defense, including:
accord and satisfaction; arbitration and award; assumption of risk;
contributory negligence; duress; estoppel; failure of consideration; fraud;
illegality; injury by fellow servant; laches; license; payment; release; res
judicata; statute of frauds; statute of limitations; and waiver. (See Ingraham,
p. 411-12 for additional examples)
Affirmative defense defined as allegation or statement of new matter, in opposition
to a former pleading, which, admitting the facts alleged shows cause why they should
not have their ordinary legal effect
Affirmative defense must be brought in the answer because P is not in control
of the facts as it is a new factual assertion.
Failure to assert an affirmative defense in the ANSWER can result in the loss of that
defense for the remainder of the litigation (particularly if the failure results in unfair
surprise to the plaintiff)

Gomez. v. Toledo
P sues superintendent of police for violating procedural due process, D moves to dismiss
under 12b6, d. court grants finding, D entitled to qualified immunity. Therefore D required to
plead that P acted in bad faith.
Held. P not required to forsee P affirmative defense.
Qualified immunity is an affirmative defense and D must provide notice to P of affirmative
defense in his answer.
Qualified Immunity:
a constitutional right may have been violated, but the violated right
was not a clear constitutional right and was not done purposefully.

Ingraham v. United States
P award damages for malpractice against air force doctor for children after damages were
granted. Ds lawyer realized that there was a 1 million dollar cap for damages pursuant to state
statute After filing notice of appeal and a motion of reconsideration.
Holding: Found to be an affirmative defense because they entered new info and
because P would have asked for ifferentnt type of damages if they were on notice
from the pleading about this defense

Counterclaims - FRCP 13
(a) Compulsory Counterclaim.
(1) In General. A pleading must state as a counterclaim any claim thatat the time of its
servicethe pleader has against an opposing party if the claim:
(A) arises out of the transaction or occurrence that is the subject matter of the
opposing party's claim; and
(B) does not require adding another party over whom the court cannot acquire
jurisdiction.
(b) Permissive Counterclaim. A pleading may state as a counterclaim against an opposing party
any claim that is not compulsory.

Amendment of Pleadings

1) Amendment of Complaints
One of the central defining features of the FRCP is that they allow for liberal
amendment of pleadings (a big change from traditional civil litigation practice)
Three major issues arise regarding amendment of complaints under the FRCP:
When can a P amend her complaint as a matter of right?
When can a P amend her complaint otherwise
What impact does the passage of the statute of limitations on the claims in Ps
complaint have on her ability to amend the complaint?

A)Amendment as a matter of right
FRCP 15(a) Amendments Before Trial:
(1) Amending as a Matter of Course. 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
responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever
is earlier.
Impact of amended complaint on the timing of the answer:

FRCP 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.

B)Amendment of complaint NOT as a matter of right
FRCP 15(a)(2) Other Amendments:
In all other cases, a party may amend its pleading only with the opposing party's written
consent or the court's leave. The court should freely give leave when justice so requires.

Relation Back

Relations back applies to factual circumstances where the complaint is filed before passage
of the statute of limitations but when party desires to amend the complaint after the statute
of limitations has run.
Relation back is when we pretend that date of amended complaint is the same as the
date of the original complaint for purposes of the statute of limitations.


Under what circumstances will a P be allowed to amend their complaint to assert a new
legal theory after the passage of an applicable statute of limitations?

FRCP 15(c) Relation Back Amendments:
(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of
the original pleading when:
(A)the law that provides the applicable statute of limitations allows relation back;
(B) the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set outor attempted to be set outin the original pleading



Barcume v. City of Flint (E.D. Mich. 1993)
P sues D and in the complaint alleges discriminatory nature of affirmative action plan.
Following discovery and expiration of statute of limitations, P amends complaint to
alleges a new claim of sexual harassment
Holding: Amended complaint must relate back to the factual situation that
underlies the intial complaint, cannot add new factual assertions to amend
complaint.
Amendments that merely correct technical deficienciess or expand or modify
facts alleged in earlier pleading meet rule 15c test and will relate back
Amendments that do no more than restate original claim with greater
particularity or amplify details of the transaction alleged in the preceding
pleading fall within 15c
But
If alteration of original statement is so substantial that it cannot
be said that D was given adequate notice of the conduct,
transaction, or occurrence that forms basis of claim or defense,
then the amendment will not relate back and will be time barred
if the limitations period has expired.

Amendment that changes legal theory upon which the action initially was
brought will not automatically bar relation back
the fact that an amendment changes the legal theory on which action
initially was brought is of no consequence if the factual situation upon
which the action depends remains the same and has been brought to Ds
attention by the original pleading.

Under what circumstances will a P be allowed to amend their complaint to add a new D
after the passage of an applicable statute of limitations?
15(c) (1)(C) the amendment changes the party or the naming of the party against whom
a claim is asserted, if [the claim arises out of the same facts] and if, within the period
provided by Rule 4(m) for serving the summons and complaint, 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 party's identity.
Krupski v. Costa Crociere S.p.A. (2010)
P sues cruise line after expiration of statute of limitation, cruise line alerts P that he
should be filing a different D. Cruise line files for motion to dismiss and P files amended
complaint to add new D, and then D files for motion to dismiss arguing that it was
untimely
Holding: In the cases of mistaken identity, when the correct D knew or should
have known they were liable, then P can amend the pleadings after the statute of
limitations because notice existed. Focus is on Ds knowledge not Ps knowledge,
15(c) exists to protect D not P, so if D is aware amendment is valid.


Rule 11
History of Rule 11:
Rule 11 was not commonly used prior to 1983, amendment required judges to issue
monetary sanctions for violations of rule 11 for the cost incurred to the opposing as a
result of the frivolous lawsuit.
1993 update introduces safe harbor rule and gave judges the discretion to impose
sanctions.
Sanctions Discretion:
Limited to amount sufficient to deter repetition of such conduct or
comparable conduct by others similarly situated.
Examples: Directives of non-monetary nature, penalty to court,
attorneys fees.
Safe Harbor Rule:
P can file complaint and may withdraw it, or correct it within 21 days after
service (or another time period the court sets) provided they acted in
good faith but later found that a legal basis for the suit did not exist.
FRCP 11 provides:
(a) Signature. Every pleading, written motion, and other paper must be signed by at least one
attorney of record in the attorney's nameor by a party personally if the party is
unrepresented
(b) Representations to the Court. By presenting to the court a pleading, written motion, or other
paperwhether by signing, filing, submitting, or later advocating itan attorney or
unrepresented party certifies that to the best of the person's knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances:

Rule 11 creates a reasonable prudent lawyer (or party) standard applied to documents
filed in court
Sanction will apply if an attorney files something in court that a reasonable attorney
would not have filed.
In other words:
1. All things (pleadings, motions, affidavits, etc.) that are filed in a federal court must be
signed by the relevant person (almost always the attorney, but sometime the party)
2. That signature constitutes a promise to the court that the person who filed the thing has
acted reasonably by filing it and more specifically that the thing that was filed:
a. Was not filed for an improper purpose
i. In other words: things filed in court must be filed in order to seek a
favorable ruling from the court, not for some other malicious or
adversarial purpose)
b. Is supported by existing law, or a good faith argument for a change in the law
i. In other words: The attorney will not be sanctioned under Rule 11 if she
does a reasonable level of legal research to determine if the claims she
asserts have a valid legal basis, or if she is asserting claims she knows are
unlikely to succeed because she is attempting to generate a change in the
law.
ii. Christian v. Mattell
P claimed copyright infringement against mattel. Mattels doll created before
Ps. DC grants summary judgment and impose Rule 11 sanctions citing the
frivolous complaint, boorish behavior and history of litigation misconduct.
Held: Rule 11 sanctions only limited to documents signed and entered
into court, conduct outside of the documents cannot be included.
c. Is, or is likely to be, supported by facts and evidence to demonstrate those facts
i. In other words: An attorney will not be subject to sanction if she does
reasonable factual investigation before filing a document and relies on
discovery to develop evidence to support the allegations.
ii. Business Guides v. CCE
1. P maker of retail directories included false directories called
seeds in the directories and alleged that D copied its listings.
When P lawyers were given notice by court that action was based
on false allegations, P had duty to investigate.
2. Rule 11 imposes an objective standard of reasonable inquiry on
parties who sign pleadings, motions, or other papers.
a. Reasonable attorney standard means an attorney will not
be subject to sanctions if they do a reasonable factual
investigation before filing a document and relies on
discovery to develop evidence to support the allegations.
iii. Kraemer v. Grant County
P alleges sheriff and Ds conspired to evict her and steal her
possessions. P attorney hires PI but unable to verify P allegations, D
files to motion to have Ps attorney pay their attorney fees
No need for certainty of the fact, just need to do a reasonable
investigation. Factors to consider:
Sufficient Time
EXtent to which attorney had to rely on the client
Whether case come from another lawyer
complexity of the facts
and would discovery be beneficial to the
development of the underlying facts (Key)
In this case it was about a conspiracy, which is typically harder
to prove by its very nature.
If discovery is needed, its not sanctionable to file a complaint
to obtain it.






Reasonableness of Factual Investigation
In addition to the assertion that it is reasonable for an attorney who cannot prove their case
without discovery to file a complaint so that they can have discovery, the Court in Kraemer
provides these factors to consider when determining the reasonability of the attorneys factual
investigation:
1) was there sufficient time for investigation
2) how much did the attorney rely on his own client
3) whether the attorney got the case from another attn.
4) the complexities of the case
5) whether discovery would have helped in developing the facts

Discovery
FRCP 26 provides the initial disclosure requirements and the scope and privileges in
discovery
Before the recent amendment of FRCP 26 in 2000, discovery involved parties asking opposing
parties for information by way of the available discovery devices
Those devices still exist and are still used, but now the discovery process starts with the
voluntary sharing of information pursuant to the Required Disclosures requirements of
Rule 26(a).
Why?
Voluntary initial disclosure streamlines discovery process to contain costs and
promote efficiency.
Rule 26(a) now requires that:
a party must, without awaiting a discovery request, provide to other parties:
1) the name of every person likely to have discoverable information that
the disclosing party may use to support its claims or defenses
2) a copy or description of all documents that are in the possession of the
party, and that the party may use to support its claims or defenses
3) a computation of damages
4) any relevant insurance agreement
5) the identity of any person who may be used at trial to present expert
testimony; and any written report prepared by that witness (must be done
at least 90 days before trial)
6) names of all other witness (at least 30 days before trial)

Challick v. Cooper Hospital
P sues 4 doctor and unknown doctors and nurses who contributed to decedents death. D
Disclosed Dr Burns name without providing info required by 26a, by the time P had
realized importance of Burns and amended complaint, the statute of limitations had run
out.
Under Rule 26(a) party must disclose all of the required materials, Here Ds
failure to disclose obstructed Ps ability to amend complaint which would have
been permissible under 15c. Court applies equitable estoppel to prevent D from
denying knowledge.

FRCP 26(b) provides:
(1) Unless otherwise limited by court order, the scope of discovery is as follows:
Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense *** For good cause, the court
may order discovery of any matter relevant to the subject matter involved
in the action. Relevant information need not be admissible at the trial if
the discovery appears reasonably calculated to lead to the discovery of
admissible evidence. All discovery is subject to the limitations imposed
by Rule 26(b)(2)(C) [must not be unduly burdensome].
1)Relevant
Prior to 2000, request had to seek information that was relevant to
the subject matter of the case,
Court can still order using a Motion to Compel Discovery.
Now it must seek information that is relevant to claim or
defense in the case (rule still states that discoverable info need
not be admissible at trial, but must be reasonably calculated
to lead to the discovery of admissible info).
About taking depositions and identifying who to depose to
gain relevant information.
Analysis is if it is relevant or likely to lead to relevant info.
Must be a VERY tenuous relationship to be denied.
Relevant according to Blacks: evidence tending to prove or
disprove an alleged fact; evidence that has a tendency to make
the existence of any fact more or less probable
Blank v. Sullivan and Cromwell
P sues D over sex discrimination in hiring practices, requests
discovery related to internal advancement, court initially said info
was not relevant but later reconsidered it and allowed it as likely
to lead to relevant info.
P just needs to show that requested material is relevant or
likely to lead to relevant info.
Must be a VERY tenuous relationship to be denied
2)Not Privileged
Various kinds of evidentiary privileges in our legal system
The two that most often apply in civil cases are
1)Attorney/Client privilege (common law)
Essential Elements:
Communication must be in course of
relationship between attorney and client (need
not be hired at time).
Communication must be and remain confidential
(if disclosed by either to a third party the
privilege is destroyed).
Pertains to the question what did you tell your attorney.
Protects confidential communications between a client and
her attorney from disclosure in discovery.
Does not apply to the factual subject matter of the
communication: just the communication itself.
The only question that the privilege applies to is some
version of: What did you tell your lawyer about the
accident or What did your client say in a letter that he
sent to you about the accident.
starts at the moment attorney is in furtherance of
representation
Why?
Exists to allow and support confidential
communications in our legal system - we couldnt
have legal system operate otherwise as clients
would not feel comfortable disclosing situations.

2)Work Product Doctrine 26(b)(3) (Statutory)
A party may not discover documents and tangible things
that are prepared in anticipation of litigation or for trial by
or for another party or its representative.
Non-opinion work product:
list of info, infographic, standard boilerplate
questionnaire, list of potential witnesses in case
organized alphabetically
May not discover unless (26(b)(4)):
Discoverable under 26(b)(1), are otherwise relevant
AND
Party shows substantial need to obtain materials to
prepare its case and cannot obtain them without
undue hardship.
Protection Against Disclosure (Opinion Work Product
Doctrine):
If the court discovery of those materials, it must
protect against disclosure of the mental
impressions, conclusions, opinions, or legal
theories of a partys attorney or other
representative concerning the litigation.
Hickman v. Taylor
Boat sinks, Ds lawyer interviews witnesses and surviving crew members in
anticipation o f litigation. Ps lawyer move to discover depositions, Ds lawyers
decline to give it over on the grounds that it was gathered in anticipation of
litigation (work product doctrine)
Held: Info gathered in anticipation of litigation is protected under the work
product doctrine and can only be handed over if the other partys shows
necessity or any indication or claim that denial of such production would
undue prejudice the preparation of their case or cause them any hardship
Rationale: Were such materials open to opposing counsel on mere demand it
would lead to unfair advantages, bad lawyers and sad lawyers. (interests of
the clients and substance would be poorly safe
Upjohn v. US
D sent questionnaire to employees regarding illegal payments. IRS requested questionnaire,
P claimed A/C privilege and WP. Held:
Who is a client: In corp. A/C privilege extends to all employees, including lower-level
employees, who provide factual information to the attorney so he can provide sound
legal advice.
Necessity is not enough: Questionnaire is the kind of product R26 was intended to
protect. Simply showing a substantial need and inability to obtain the equivalent
without undue hardship is not enough.





Non-opinion work product examples:
list of info, infographic, standard boilerplate questionnaire, list of potential
witnesses in case organized alphabetically
3) Not unreasonably cumulative or burdensome
Rule 26(b)(2) provides that the DCT may limit the number of
depositions and interrogatories, requests for admissions, and limit
the time for depositions
And also provides that the district court can limit or preclude
discovery when one of the following circumstances is met:
1) the discovery sought is unreasonably cumulative or
duplicative, or is obtainable from some other source
that is more convenient, less burdensome, or less
expensive
2) the party seeking discovery has already had his
chance, or
3) the burden or expense of the proposed discovery
outweighs its likely benefit (taking into account the
value and importance of the case)

Must balance the legitimate need for info against the burden and expense of
producing it.
ii. Breon v. Coca-Cola: Age discrimination suit against D, after D demoted P to a
less paying job after denying him a medical waiver. Held:
1. Relevant information need not be admissible at trail if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence. Therefore, relevance should be liberally
and broadly construed.
2. Here: Interrogatories were relevant or could lead to relevant information.

Rule 26(b)(3) provides that:
Ordinarily, a party may not discover documents and tangible things that are prepared in
anticipation of litigation or for trial by or for another party or its representative ***
But, subject to Rule 26(b)(4), those materials may be discovered if:
(i) they are otherwise [relevant]; and
(ii) the party shows that it has substantial need for the materials to prepare its case and cannot,
without undue hardship, obtain their substantial equivalent by other means.
(B) Protection Against Disclosure. If the court orders discovery of those materials, it must
protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of
a party's attorney or other representative concerning the litigation. [This is opinion work
product that reveals the thought process and strategy of the attorney, and it is almost
always protected from discovery]







Major Discovery Devices
Interrogatories (FRCP 33)
Requests for Production of Documents (Rule 34)
Depositions (Rules 27,30,31,32,45)
Requests for Admissions (Rule 36)



Summary Judgment
Most common way litigation ends
it is a post discovery pre trial resolution of a claim
Usually filed by defendants, can also be filed by plaintiff
Motion is granted when no need for trial exists because:
No disputes over material facts exists.
At summary judgment stage the moving party always has the burden of persuasion
When the moving party is the P, he must prove:
No reasonable factfinder would find for the other party
When the moving party is the D, he must prove either:
1. Affirmative defense that negates an essential element of opposing partys
case OR
2. insufficient Evidence.
FRCP 56 provides:
(a)Motion for Summary Judgment or Partial Summary Judgment. A party
may move for summary judgment, identifying each claim or defense or
the part of each claim or defense on which summary judgment is sought.
The court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law
(c) Procedures.
(1) Supporting Factual Positions. A party asserting that a fact cannot
be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.

Addicks v.Kress (traditional view, burden on moving party to show no genuine issue of fact):
White schoolteacher w/ Af Am students refused service at lunch counter. Teacher arrested vagrancy
and claimed D and police conspired to arrest her. Conspiracy claim was dismissed on SJ at trail.
Held:
1. P has initial Burden: As the moving party, respondent had the burden of showing in the
absence of genuine issue of material fact, and must be viewed in the light most favorable to
the opposing party.
2. Once Burden is Met: If respondent had met its initial burden, R56(e) requires petitioner do
more than simply rely on the contrary allegation in her complaint.
3. Here: Respondent failed to foreclose the possibility that there was a policeman in the store.

Celotex (lowers Addickes standard, moving party can now either provide affirmative evidence that
there is no genuine issue of fact or can point to other partys evidence to show other partys
evidence is insufficient)
P sued multiple producers of asbestos, all suits were dismissed at summary judgment aside
from celotex because celotex produced asbestos which P claimed proximately caused the
harm suffered by decedent. D filed summary judgment claiming P failed to provide evidence
that D products proximately caused harm to decedent.
Held: Summary judgment can be granted for D if D can demonstrate P doesnt have
sufficient evidence after discovery to demonstrate their entitlement relief.
Matsushita v. Zenith
P sues D and 20 japanese corp alleging pricing conspiracy.
Higher standard for antitrust: must have evidnece proving legal conspiracy and
that D suffered injury as a result of the legal conspiracy.
In a situation where the economic logic of the claim is not believable then more
convincing evidence is needed.
Liberty Lobby
P files libel action against magazine.
Courts should consider evidentary standard when cosnidering motion for
summary judgment
( in this case the evidentary standard for libel-clear and convicing
evidence
in most civil cases, the standard is preponderance of evidence.
Scott v. Harriss
P is injured in high speed police chase by D. Entire chase caught on film
If the entirety of an incident is caught on video, then the reality is preserved and
no jury evaluation is necessary because no reasonable jury can find otherwise
Scalia: Only have to view the facts in a light most favorable to the non moving
party when there is a genuine dispute of those facts.
Curtis v. Luther
P, black woman, sues D for housing discrimination requested damages and prelimnary
injuction.. D wanted a jury
Cause of action analogous to tort action and relief relates back to a relief that
could have been brought in a court of law.
Marashal: Concerns about bias juries can be counteracted by judicial authority.
(ex. judgment notwithstanding the verdict, new trial)
Tull v. United States
D charged with violating clean water act, which authorizes injunction or civil
penalty. D requested trial by jury. Court granted that D had right to trial by jury
because the punishment was monetary, but the judge would determine the
amount penalty.
(as long as relief or penalty is monetary, youre going to get a jury)

Beacon Theatre v. Westover
Are you entitled to a jury in a case with mixed equity and law claims?
Yea, if they arise from the same factual issues.





Winning the Summary Judgment Motion (the burdens on parties seeking a grant of
summary judgment):
If the party seeking SJ has the burden of persuasion AT TRIAL (almost always the P), her
motion will granted only if she can show that a reasonable fact-finder could only rule in
her favor at trial
If the party seeking SJ does NOT have the burden of persuasion AT TRIAL (almost always
the D) his motion will be granted if he does either of the following:
1)Provides affirmative evidence that negates an essential part of the non-moving partys
claim (Ive got the smoking gun!); or
2)Demonstrates that the non-moving party has insufficient evidence to prove an essential
part of her claim (They dont have enough evidence to win)




Trial, Right to Jury and Jury Selection

1) Opening Statements
Trial begins with opening statement by the plaintiff in which counsel indicates what the
case is about, what arguments are going to be made, and how the truth of the
arguments will be proven.
D may then give her opening statement, or may wait until Ps presentation of evidence
is complete; Ds opening seeks to achieve the same goal: telling the jury what
arguments are going to be made and how the truth of them will be shown

2) Presentation of Evidence
Plaintiff then calls witnesses to the stand and asks them questions called direct
examination. The D may then ask his own questions : cross examination. P can
then ask more questions redirect, and the D can cross again recross. And this
goes on until no one has any more questions.
Rules of evidence dictate exactly what types of questions can be asked. But the judge
will not disallow a question unless the opposing counsel issues an objection.
Objection must be stated along with the grounds for the objection.
Judges do have the authority to ask questions but they are usually reluctant to get too
involved in the questioning.

3) Motion for Judgment
FRCP 50 provides:
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 legally 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 that, under the controlling law, can be maintained or defeated
only with a favorable finding on that issue.

After the Ps case is over, the D can move for judgment as a matter of law (called,
traditionally, a motion for directed verdict now called a motion for judgment as a matter
of law).
He will do this if he believes that the P has failed to prove an essential aspect of
her case, and that no reasonable fact-finder could find for the P. It is the same
thing as a SJ motion, except it comes after P has been given a chance to actually
present her evidence.

If the initial motion is denied, the D will present his evidence in the same way that P did.
P will then be given the chance to present rebuttal evidence (evidence that is relevant
b/c of something the D brought up is his part of the case, and the defendant may then
rebut anything in the Ps rebuttal) - and thats it.
After the evidence has been presented, either party (or both) can move one more
time for judgment as a matter of law. Same as the directed verdict, but just later
again.




4) Jury Instructions and Closing Arguments
After the evidence, and before the jury goes in to deliberate, the judge instructs the jury
about the law that is relevant to the case. The jury instructions are usually a synthesis
of the judges ideas and suggestions from the parties. Some jurisdictions, including DC
and MD, have model jury instructions for common types of cases that the judge can use.
Also before deliberations, jurors hear closing statements from both sides in
which the lawyers review for the jury the evidence presented and show how it
supports their case.

5) Verdicts
Jurors then retire to some big room and they talk about the case and try to reach a
unanimous verdict. Usually jurors give general verdicts - which means a yes or no
statement about the liability of the parties. Jurors can also give special verdicts if
they are asked specific questions about the case
Although most jurisdictions still require unanimous jury verdicts, some jurisdiction allow
majority verdicts in some civil cases

FRCP 48 says:
1) Civil juries between 6 and 12 people
2) Verdicts must be unanimous

6) Post-Verdict Motions
Party that loses can file the last in the string of FRCP 50 motions for judgment as a
matter of law (called a renewed motion for judgment as a matter of law at this stage)
Again the theme is that no reasonable jury could have decided (at this stage) what
that jury actually decided. Understandably, this is the most unlikely one to be granted.


Right to a Jury:
7
th
Amendment: In suits at common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury,
shall be otherwise re-examined in any Court of the United States, than according to the
rules of the common law.
FRCP 38: The right of trial by jury as declared by the Seventh Amendment to the
Constitutionor as provided by a federal statuteis preserved to the parties inviolate.
Since 7
th
Amendment references preservation of the right to jury, the general
rule is that if the case is a case that was traditionally a case at law (and not a
case in equity - remember the common law writs) by 1791 then the parties are
entitled to have the case decided by a jury (upon request not required)
Law cases involved monetary damages;
equity cases arose as alternatives to law cases in situations where
monetary damages alone would not suffice - in equity courts injunctive
relief was what was provided.

Jury Selection and Composition
There are two relevant events in the selection of a jury for a trial:
1) the selection of the jury pool; and
2) the empanelling of a jury by the specific judge and attorneys in a case
Jury pools in federal court are selected pursuant to a federal statute: 28 USC 1861 which
outlaws any race, gender or class discrimination in jury pool selection, and requires that
jury pools be selected at random
After the jury pool has been identified, the Ct selects a portion of the pool to show up
each day for whatever trials are starting. Then the process of selecting the specific jury
for each case, out of the pool of potential jurors, begins with the individual questioning
of potential jurors called voir dire.
Voir dire is the process of questioning jurors in order to determine whether they are
biased about the case in any way. During voir dire, and directly after, the attorneys in
the case have three basic options:
1) Accept the juror; 2) challenge her for cause; 3) peremptory challenge
Accept Juror - juror accepted onto jury
Challenge her for cause - an unlimited device that can be employed when
there is some identifiable reason why the juror may be considered biased
bias exists when the juror has fixed, preconceived, and decided opinions
as to the resolution of the specific case, and will decide the case based on
these preconceived notions, and not on the facts and law of the case
Peremptory challenges (FRCP allows for three) that do not have to be justified
in any way
Used in instances where the attorney perceives some sort of inclination
counter to his clients interest, but is unable to identity a bias for a
challenge for cause during the voir dire questioning
Cant use peremptory challenges based on race or gender.

Thiel v. Southern Pacific Co.
P sues D for allowing him to jump out of a moving train. P after demanding jury trial
moves to strike panel (pool) selected arguing that jurors were biased towards business
owners because daily wage earners were deliberately excluded.
Holding: Cant discriminate in jury pool selection on economic status and
imagined hardship.
Edmundson v. Leesville
P sues employer, D uses two peremptory challenges to remove black people from
prospective jury.
Holding: cant use premptory challneges on the basis of gender or race.

























Sample
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS


Joe Conley, et al, )
Plaintiff )
)
)
v. ) Civil Action
) File #12345
)
Gibson, Brotherhood of Railway )
and Steamship Workers, Local Union )
No. 28, )
Defendants )

COMPLAINT



1.This court has jurisdiction pursuant to the 28 USC 1331. Plaintiffs claim arises under the Labor
Relations Act, and the LRA expressly provides that parties injured as a result of a violation of the Act
can seek relief in federal court.

2.Plaintiffs and similarly situated parties were represented by Defendant national and local union.
Defendants entered into an agreement with Plaintiffs employer that resulted in the firing or demotion
of plaintiffs. This agreement constituted a failure on the part of D to provide Plaintiffs with legally
mandated representation as a result of their race in violation of the LRA.

3.Plaintiffs seek a declaration from this court that the Defendants violation the LRA, an injunction
ordering the Defendants to represent the Plaintiffs in good faith, including seeking an agreement with
their employer to return them to their jobs with full seniority and back pay.


Signed


Attorney for the Plaintiffs