CIVIL PROCEDURE

I. SUBJECT MATTER JURISDICTION of the Federal Courts

A. Generally
1. Need both personal jurisdiction inquiry and SMJ inquiry (fed courts can only hear certain cases)
2. Const. Art III 2 enumerates and limits cases for federal courts
B. Federal Question Jurisdiction
1. 28 USC 1331 grants federal jurisdiction over cases that arise under federal law
a. Jurisdiction for all civil actions arising under the Constitution, laws or treaties of the U.S.
2. Louisville & Nashville RR v. Mottley (1908) p.217
* Mottleys sue b/c RR took away free pass; raise RR defense of congressional act; bring in fed court
a. Federal question must come from Ps complaint; cannot come from Ds answer/defenses
b. P cannot anticipate defense that raises federal question
c. Always look at claim not mere existence of federal law
d. Mottley case no federal jurisdiction (merely contract and breach case)
3. Well-pleaded complaint rule do not look at anything else in complaint (no possible defenses)
a. Question is P enforcing a federal right?
b. This is not in Art III, only an interpretation of 1331
(1) Constitution would allow P or D to raise question of federal law
4. LOOK AT SG 19-25
5. Federal question jurisdiction is concurrent (can also be brought in state court)
a. If state law creates cause of action dependent on analysis of some federal issue, usually deny SMJ
(1) Ex state tort negligence claim for improperly labeled food includes issues of FDA statute
(2) Where fed law that forms element of state-law claim does not itself give rise to private right
of action no fed question jurisdiction over state law claim
C. Diversity Jurisdiction
1. 28 USC 1332 grants jurisdiction (if amount in controversy over $75000) to the following:
a. (1) C1 v. C2; C1 v. A1; C1+A1 v. C2+A2; foreign state v. C1
b. From Const. Art III 2 jurisdiction over Controversiesb/t Citizens of different states
c. 1359 no jurisdiction in civil action where party has been joined to invoke fed jurisdiction
2. Citizenship of Individuals
a. Mas v. Perry (1974) p.229
* H+W sue landlord for spying on them (invasion of privacy tort)
(1) For purposes of diversity jurisdiction, citizenship = domicile
(a) Requirements for domicile
1) Must have residence (presence) in state
2) Must intend to stay there (intent to make it your permanent home)
(b) Retain domicile until you go to new state and intent to make it your home
(c) Individuals can only have one domicile
1) Domicile is determined at start of litigation (even if P or D later moves)
(2) Mrs. Mas domiciled in Mississippi b/c no intent to remain in Louisiana (just schooling there)
(a) L domiciled in Louisiana
(b) Complete diversity (Miss. + France v. Louisiana) - 1332(a)(3)
(3) If Mr. Mas (domiciled in France) had sued L, no diversity problem (1332(a)(2))
b. Saadeh v. Farouki (1997) p.236
* S(Greece) v. F(resident of Maryland/citizen of Jordon) is this ok?
(1) 28 USC 1332(a)(4) permanent resident provision
(a) alienshall be deemed a citizen of the State in which such alien is domiciled.
(2) Provision is meant to restrict diversity jurisdiction, not to expand it
(a) Limited to situations where other side is citizen of state
1) Ex citizen of NY v. citizen of Canada domiciled in NY = no jurisdiction
(b) Also constitutional problem cannot have Alien v. Alien
(c) To read statute literally would be partial abrogation of complete diversity rule

(3) Complete diversity is destroyed in lawsuits between aliens p.238

(4) Argument that there should be jurisdiction here
(a) Plain reading of statute maybe Congress did intend to expand jurisdiction
(b) Diversity rule meant to protect from bias against out-of-staters
c. Complete diversity rule no P can be citizen of the same state as any D
(1) Not constitutional requirement; merely judge-made interpretation of 1332
(2) First used in Strawbridge v. Curtiss (1806) by C.J. Marshall
(3) Not required in statutory interpleader action (28 USC 1335(a)(1))
d. Other diversity hypos
(1) No diversity b/t 2 foreign citizens (Alien v. Alien doesnt fall w/in 1332; not constitutional)
(2) Diversity for A1+C1 v. A2+C2 (ok by 1332(a)(3))
(a) But no diversity for A1+C1 v. A2 (its constitutional, but Congress has not allowed it)
(3) Resident alien deemed to be citizen of whatever state he is domiciled
(4) 1332(a)(3) - partial abrogation of complete diversity rule b/c could have alien on each side
e. Representative of minor/incompetent/deceased has same citizenship of individual represented
(1) 1332(c)(2)
3. Citizenship of Corporations (1332(c)(1))
a. Dual citizenship
(1) State where it is incorporated (usually just one state)
(2) Principle place of business (only one)
(a) Corporations nerve center where decisions are made (exec/administrative functions)
(b) Corporations muscle center where everyday business activities occur
(c) Total activities assessment = nerve (cts place weight) + muscle + total activities
4. Amount in Controversy must exceed $75,000 w/out interest + costs (1332(a))
a. Aggregating claims
(1) Single P can aggregate claims against single D (R18 joinder of claims)
(2) 2 Ps cannot aggregate claims against one D if claims are separate and distinct
(a) Car crash even considered unrelated claim
(3) Multiple Ps against multiple Ds must have undivided interest and single title or right
(a) Ex sometimes joint claim or joint liability (like 2 roommates suing landlord)
b. Injunctions must be worth of $75,000 to P or cost D over $75,000
c. Class action all class members must individually satisfy amount in controversy
(1) Zahn v. International Paper Co. (1973) p.243
(2) Sometimes, just class rep will have to satisfy amount (Free v. Abbott Labs.)
d. Actual recovery is irrelevant (even if less than $75,000)
(1) Punishment if P recovers less than $75,000 (costs and fees)
(2) Case dismissed if claim is apparently less than $75,000 to a legal certainty
(a) St. Paul Mercury Indemnity Co. v. Red Cab Co. (1938) p.242
5. Arguments against diversity jurisdiction
a. Huge portion of federal courts caseload eliminate unless it serves vital function
b. No vital function b/c prejudice based on state citizenship is no longer factor in US society
D. Supplemental Jurisdiction
1. Generally
a. 28 USC 1367 jurisdiction over state court claim that forms part of the same case or
controversy with federal court claim SG 34-41
b. First claim must have fed jurisdiction under federal question or diversity
(1) Second claim can be heard if it satisfies supplemental jurisdiction
c. Why? unfair to P to bring 2 cases; inefficient to have 2 cases about same facts
d. NOTE 2nd claim can be against different D if common nucleus of operative fact (STO)
(1) 1367(a) overrules Finley v. United States (1989) p.250
2. United Mine Workers v. Gibbs (1966) p.244
* G lost K b/c of labor violence; brings fed Labor Mgt Relations Act claim + state conspiracy claim
a. Rules from case

(1) State and federal claims must derive from a common nucleus of operative fact
(2) So closely related that P would be expected to try them all in one judicial proceeding
b. First claim (LMRA) gets into federal court under federal question jurisdiction
(1) Second claim (conspiracy) doesnt have fed question or diversity jurisdiction
(2) Second claim has common nucleus of operative fact so can be litigated together
3. How to analyze supplemental jurisdiction problem
a. Does 1367(a) grant supplemental jurisdiction to this claim?
(1) YES if it is part of same case or controversy
b. Does 1367(b) take away supplemental jurisdiction?
(1) Applies only to diversity cases not fed question cases
(2) Only takes away supplemental jurisdiction in claims brought by Ps against:
1) Rule 14 3rd party
2) Rule 19 compulsory joinder
3) Rule 20 permissive joinder
4) Rule 24 intervention
5) If additional P is joined under Rule 19 or Rule 24
4. District court can decline supplemental jurisdiction (1367(c)(1)-(4))
a. If claim raises novel issue of state law, state law claim dominates, original jurisdiction claims
have been dismissed, or other compelling reasons/exceptional circumstances
E. Removal
1. Statutes and Case
a. 1441, 1446, 1447 D wants to transfer from state court to federal court
(1) 1441(a) removal only to the fed court where the action is pending
(a) If fed courts have original jurisdiction
(2) 1441(b) cannot remove if any D is on home turf (even if complete diversity)
(a) If fed question, D may remove regardless of citizenship
(b) If P dismisses claim against home turf D, then removal OK
(3) 1441(c) allows removal of entire case if federal question claim is joined to state claim
(4) 1446 procedure for removal
(a) Short and plain statement describing grounds for removal
(b) Must be filed w/in 30 days (1 year if diversity jurisdiction)
(c) Written notice to all parties
(5) 1447 challenging removal
(a) Motion to remand made w/in 30 days of notice of removal (1447(c))
(b) Case lacking SMJ can be remanded at any time (1447(c))
(c) P can join Ds to ruin diversity/prevent removal (1447(e))
b. Caterpillar, Inc. v. Lewis (1996) p.252
* L (Kentucky) sues C (Delaware, Illinois) and Whayne Supply (Kentucky ruin diversity)
(1) L settles w/ WS less than one year after filing complaint; C removes to federal court
(a) If L would have waited over one year, C could not remove (1446(b))
(2) Must have complete diversity at time of filing, not just at time of trial
PHASES OF A LAWSUIT
II. PLEADING
A. Complaint
1. History of complaints and pleadings
a. Common-law pleading (not used in American jurisdictions) p.384
(1) Medieval English govt aggrieved subject must say why kings judges should hear him
(a) First pleadings were crimes against the peace (criminal) - led to civil liability (trespass)
(b) Ps wanted in royal courts rather than local courts (faster and fairer)
1) Must describe behavior in language of certain writs: trespass, debt, ejectment, trover
and replevin, and assumpsit (similar to fed courts w/ limited jurisdiction)
2) Different writs had different procedures

(c) Emphasis on formal style; hard to understand and repetitive

1) Ex Gregorys Common Law Forms
(2) Deciding the issues law settled by judges; fact settled by juries
(3) Responses not on merits of case (dilatory pleas)
(a) Jurisdiction challenges, pleas in suspension (not now), pleas in abatement (not like this)
(4) Responses to merits of case (peremptory pleas)
(a) Demurrer (so what), traverse (not true), plea of confession and avoidance (yes, but)
b. Code pleading p.396
(1) 19th century common-law and chancery procedure attacked
(a) Reform simplified pleading and merged law and equity into single system
1) One form of action civil action
2) Pleading must contain (1) statement of facts and (2) judgment/demand for relief
a) Not elaborate discovery Cali is code pleading state
(2) Gillispie v. Goodyear Service Stores (1963) handout
* Complaint dismissed for not having specific enough details (too unclear in code pleading)
(a) Must give factual details that would allow one to infer element of cause of action
(b) IMPORTANT whether allegations are addressed in complaint
(c) FRCP more permissive than C/L and code pleading b/c
1) Ps w/out quality legal access can get into court (not really, Clyde says)
2) Ps will not have detailed information at outset of litigation
2. Pleading under FRCP (FRCP 1-16)
a. Elements of Cause of Action
(1) How to do analysis
(a) Lay out elements of cause of action (precedent cases lay out elements)
(b) Complaint must allege facts for every element of the cause of action
(c) Dont just say duty is breach is have more meat on the bones
(d) Any inferences have to be reasonably plausible (otherwise 12(b)(6) dismissal)
1) Could rsnble person come to the logical conclusion
(2) Haddle v. Garrison (1998) p.417
* Ps complaint, 1985 claim looking at elements, is loss of at-will job an injury?
(a) Trial court Ds 12(b)(6) motion granted b/c P was at-will employee (job can end)
(b) 11th Cir Ps lawyer did not amend, and court quickly affirmed trial court
1) Court always supposed to give one second bite the apple (one chance to amend)
2) Ps lawyer did not amend here b/c there is nothing to fix w/out lying about it
(c) Supreme Court loss of at-will job is sufficient injury for 1985 claim
1) Case remanded for trial
2) Dont automatically dismiss b/c courts can interpret causes of action in new ways
(d) NOTE if 1985 was dismissed, P could not continue to bring state claims b/c no
federal claim to base supplemental jurisdiction on
(2) FRCP 7 6 pleadings allowed in fed court
(a) Complaint, answer, reply to counterclaim, answer to cross-claim, third-party complaint,
third-party answer (R7(a))
(b) Motion = application to court, usually submitted in writing, requests order (R7(b)(1))
(3) FRCP 8 general rules of pleading
(a) Rule 8(a) short + plain statement that gives:
1) Grounds for jurisdiction (diversity, fed question, supplemental, personal)
2) Claim for entitlement to relief (only give notice; dont have to give legal theories)
3) Demand for judgment
(b) Rule 8(b) D must answer each claim asserted (admit, deny, or dont know)
1) Failure to deny will be taken as admission (Rule 8(d))
(c) Rule 8(c) D has burden to prove affirmative defenses (rely on facts not in complaint)
(4) FRCP 10 form of pleadings
(a) Must make claims or defenses in separate numbered paragraphs (Rule 10(b))

(5) Borer v. American Airlines (1977) handout

* P files consortium claim for injury suffered by children (not spouse)
(a) Not meeting all elements is not automatically 12(b)(6) (or demurrer in Cali)
1) Courts can create new causes of action
(b) People litigate to accomplish political or social change
1) P almost has valid claim + hopes courts will recognize it
b. Effectiveness in Civil Rights Complaint
(1) The Language of Civil Rights Litigators (Eastman, handout) Kendrick complaint
(a) First complaint is very sympathetic, very effective but not correct
1) Later, lawyer said he should have filed this case
2) Should public interest law be more narrative?
(b) Second complaint is more lawyerly and dry
(2) There is no one right way to write a complaint
c. Consistency in Pleading (Alternative pleadings)
(1) McCormick v. Kopmann (1959) handout
* H dies; W sues other driver for wrongful death; sues bartender under Dram Shop Act
(a) 2 theories of liability can create sets of fact that are inconsistent
1) This is ok if P does not know which facts are true
(b) Alternative, inconsistent complaints are allowed if they arise out of same action
(2) FRCP 8(e)(2) party may set forth two or more statements of a claim or defense
alternately....regardless of consistency
(3) FRCP 18(a) partymay join, either as independent or alternate claims, as many
claimsas the party has against an opposing party
(a) Claims can be unrelated
(b) Dont have to bring all claims together (not compulsory)
(4) P usually has to settle on single version of story b/f trial
d. Honesty in Pleading
(1) FRCP 11 requires atty to sign all documents filed or served
(a) Rule 11(b) to best of attys knowledge after an inquiry rsnble under circumstances:
1) 11(b)(1) certifies that what lawyer files is not for improper purpose
2) 11(b)(2) certifies that what lawyer files is legally non-frivolous
3) 11(b)(3) and 11(b)(4) certify that it is well grounded in fact
a) Atty cannot just hope that favorable facts will emerge
(b) First move 12(b)(6); then decide if Rule 11 sanctions are applicable
(c) Prior to 1993, sanctions had to be imposed now they are at discretion of court
(d) Safe harbor provision allows party 21 days to fix problem b/f sanctions (11(c)(1)(A))
1) But if court raises issue sua sponte there is no cooling off period (11(c)(1)(B))
(e) Abuse of discretion standard of appellate review (Ridder v. Springfield)
(2) Golden Eagle v. Burroughs (1986) handout
* Ds atty rule 11 sanctions for not stating good faith arg + not citing contrary authority
(a) Objective standard: Does rsnble basis for position exist in law + fact at time position is
adopted? If YES no sanctions
(b) Cannot be sanctioned for failure to cite adverse authority
1) Issue is whether claim is legally non-frivolous
(c) Rule 11 does not require counsel to distinguish b/t existing law and argument to extend
existing law
(d) Must protect lawyers duty to zealously defend client
(3) Business Guides v. Chromatic Communications Enterprises (1991) p.424
* P thought that D had copied material; but D actually printed correct info; P made mistake
* May sanctions be imposed on a represented party?
(a) Rule 11 standard is objective reasonableness (would RPP have made same mistake)
(b) 11(b)(3) info is to best of knowledge after rsnble inquiry under circumstances
1) Failure to investigate underlying facts is common basis for Rule 11 sanctions

(c) 11(c)(2)(A) no monetary sanctions against represented party for violation of 11(b)(2)
1) Implies that represented parties may be sanctioned
(4) Ridder v. City of Springfield (1997) handout
* P files 1983 claim b/c police didnt check alibi + used testimony of unreliable witnesses
(a) Sanctions for unrsnably and vexatiously multiplying proceedings (under 1927?)
(b) Party cannot move for Rule 11 sanctions w/out safe harbor period
1) strict adherence to the rules outlined procedure
e. Sufficiency of Complaint
(1) Mitchell v. Archibald & Kendall (1978) handout
* P offers 5 theories of duty, even tho his truck parked off Ds premises
(a) If P alleges that he was across the street (not legally on Ds premises), then 12(b)(6) is
appropriate b/c D had no duty towards P
1) Duty is question of law so court can decide 12(b)(6)
(b) With 12(b)(6) motions, all material facts in complaint must be taken as true
(c) Court not required to accept legal conclusions which may be drawn from facts
f. Specificity in Pleading Disfavored Claims
(1) Fraud
(a) Olsen v. Pratt & Whitney Aircraft (1998) p.436
* P claimed that D promised him job security so he would revoke his participation in an
early retirement plan, but then fired him soon after
1) Under ordinary principles, Ps complaint satisfied all elements of fraud
a) Elements of fraud in notebook
2) But heightened pleading requirement for fraud
a) Protect against frivolous suits; protect D from stigma
3) Something more is required (plead w/ particularity/detail)
a) What said, by whom, where and when, why fraudulent, etc.
b) But state of mind aspects are excluded
c) Need only reasonable inference (default inference standard)
(b) FRCP 9(b) circumstances constituting fraud or mistake shall be stated w/
particularity
(c) In re Silicon Graphic Securities Litigation (1999) handout
* Congress enacted statute that set standard of pleading for securities fraud
1) Securities fraud must plead particular/relevant facts to create strong inference
of deliberate recklessness of knowing misrepresentation on the part of D
2) Here only inference/suspicion, not strong inference
a) Not enough for Private Securities Litigation Reform Act of 1995
(2) Civil Rights
(a) 1983 (1) act under color of law to (2) deprive of federal rights
(b) Leatherman v. Tarrant County Narcotics Unit (1993) p.442
* P alleged 1983 claim, but didnt plead against qualified immunity of officers
1) If matter not listed in Rule 9, court may not require party to plead w/ particularity
2) 1983 pleading just needs short and plaint statement of claim (Rule 8(a)(2))
a) No heightened pleading requirement for 1983 claims
b) Rule 9 could include 1983 if changed by legislature
3) Conundrum w/ qualified immunity D must litigate to prove he shouldnt have to
litigate
(c) Schultea v. Wood (1995) handout
* Police chief demoted b/c he investigated city council wrong-doing
1) Ps reply must plead w/ particularity against defense (answer) of qualified immunity
a) Reply is pleading under Rule 7(a)
b) Reply does not make claim for relief, so not subject to Rule 8(a) short + plain
2) Other things court can do since no heightened pleading requirement for 1983
a) Complaint must rest on more than conclusion along

(i) Judge is almost saying that there is no notice pleading in fed court
b) Limit discovery to defense of qualified immunity (or no discovery at all)
c) Summary judgment after discovery
g. Allocation of Pleading Burdens
(1) 3 burdens p.446
(a) Burden of pleading, production, and persuasion
1) If facts are even, the party w/ the burden of persuasion loses
(2) Gomez v. Toledo (S.Ct., 1980) p.446
* P officer moved to inferior employment b/c he testified against 2 other officers
(a) Qualified immunity is defense available to officials (and D is in better position to know)
1) Burden of pleading qualified immunity rests on D
2) Rule 8(c) affirmative defenses go in Ds answer
(b) P does not have to plead that Ds actions were motivated by bad faith
(3) Dog Bite Statutes (handout)
(a) P must establish elements in complaint, and D must answer
(b) Rule 8(d) if no response required to an allegation, it will be taken as denied
1) Answer is a pleading that does not need a response (except in special cases)
2) New allegations of fact in the answer will be presumed denied
B. Defendants Response to the Complaint
1. Pre-Answer Motions and Rule 12(b) Defenses
a. Rule 12(b) permits certain defenses to be raised by pre-answer motion
(1) 12(b)(1-5) and (7) defenses not on merits of case
(a) Technical objections
(2) 12(b)(6) on merits of case (legally speaking, no cause of action exists
(3) If no pre-answer motion, these must be raised in answer
b. The 12(b) defenses
(1) 12(b)(1) no subject matter jurisdiction
(2) 12(b)(2) no personal jurisdiction
(3) 12(b)(3) improper venue
(4) 12(b)(4) insufficient process (very rare)
(5) 12(b)(5) insufficient service of process
(6) 12(b)(6) failure to state a claim upon which relief can be granted
(7) 12(b)(7) failure to join party under Rule 19
c. Waiver provisions
(1) 12(g) Rule 12 motions must be raised together, or waived forever (except those in 12(h))
(a) Applies to Rules 12(b)(2)-(5) then available to the party
1) If D learns info that later makes defense available, he can raise waivable defense
(b) Only 1 pre-answer motion raising Rule 12 defense is permitted
(c) If D makes no pre-answer motion, he must raise Rule 12 defenses in the answer
1) Or in amendment to answer permitted by Rule 15(a)
(2) 12(h) unwaivable defenses
(a) 12(b)(1) court can always dismiss for lack of SMJ (sua sponte Mottley)
(b) 12(b)(6) failure to state claim on which relief can be granted
(c) 12(b)(7) failure to join party under Rule 19
(d) Failure to state legal defense to a claim
d. Other Rule 12 motions
(1) Rule 12(e) motion for more definite statement (rarely granted)
(a) D claims that complaint is so vague that she cannot respond
(2) Rule 12(f) motion to strike (rarely used/granted)
(a) Can eliminate part of pleadings (significant when pleadings were read to jury)
(b) Conceptual relationship b/t 12(f) and 12(b)(6)
1) If D doesnt meet all elements of affirmative defense in answer, P can move to strike
2. Default

a. When complaint has been filed and served what does D do?
(1) If D waives service of process, D has 60 days (instead of 20) to file answer (Rule 12(a)(1))
(2) Then can file motion to dismiss you some other motion but has to do something
(3) If motion to dismiss denied, D has 10 days to file answer
b. Rule 55(a) if D fails to plead or otherwise defend, the clerk shall enter the partys default
(1) Rule 55(b)(1) P can move to have default entry become default judgment
(2) Rule 55(c) for good cause, court can set aside entry of default or judgment by default
(a) Not favored by courts
(b) If not set aside, default is judgment on the merits
c. How to compute time
(1) Count next day as Day #1; if final day lands on weekend/holiday, go to next business day
(2) If amount of time is 11 days or more, count weekends/holidays in calculation
(3) If amount of time is 10 days or less, do not count weekends/holidays
3. Answer
a. Denials
(1) Rule 8(b) to every claim, D must admit, deny, or say he doesnt know (like denial)
(a) If D can deny in good faith only part of claim, D shall specify so much of it as is
trueand shall deny only the remainder (like Zielinski)
(2) Rule 8(d) when response required, failure to deny will be treated as admission
(a) If no response required (to answer), claims and defenses presumed denied
(3) Zielinski v. Philadelphia Piers, Inc. (Penn., 1956) p.457
* P injured in forklift accident; PPI said they were D CCI should have been D
(a) When Ds general denial would mislead P, D must file more specific denial
(b) B/c D misled P, equitable estoppel so P can get past statute of limitations
1) D led P to believe it was proper D, and let statute of limitations run
(c) If P makes claims too vague or general they are easier to deny
b. Affirmative Defenses
(1) Rule 8(c) lists affirmative defenses that must be raised in Ds answer
(a) List is not exhaustive
(b) Ex contrib. neg., duress, fraud, res judicata, statute of limitations, etc.
(2) Layman v. Southwestern Bell Telephone Co. (Mo., 1977) p.463
* P claims D trespassed onto land to install underground telephone wires
(a) Easement defense is not predictable, so D has to plead this as affirmative defense
1) Must list affirmative defenses in answer (but not if just general denial)
a) D is not just denying facts, but injecting new facts that would make P lose
2) Here, b/c easement evidence was not pleaded, trespass was sustained
a) Raise affirmative defenses or risk waiving them
(b) List of defenses in 8(c) is not exhaustive
1) P does not have to answer to deny them Rule 8(d)
(c) Judge has discretion to permit amendment to answer Rule 15(b)
c. Statute of Limitations special affirmative defense
(1) United States v. Kubrick (1979) handout 159
* P injured when medicine for surgery caused hearing loss; VA hospital denies claim
(a) In malpractice + negligence tort claims must have notice of injury standard
1) S of L accrues when P has notice of injury, not when injury begins or when P has
notice of cause of injury/infringement of legal right
2) P had power to get info b/f statute of limitations ran out
(b) Statute of limitations means to protect D
1) Clock begins to run when claim accrues important point
2) Accruement date on which P could have commenced suit (Hazard reading)
(c) Stevens dissent med-mal is exception b/c Congress meant more humane standard
1) But knowledge of cause and knowledge of legal rights standard could allow S of
L to go on forever

4. Counterclaims
a. Compulsory counterclaims
(1) Rule 13(a) compulsory counterclaims
(a) D must state counterclaim against P if it arises out of the transaction or occurrence
that is the subject matter of the opposing partys claim
1) Must be asserted or waived
(b) Counterclaims go in the answer
(c) Must have SMJ (usually satisfy supplemental closely related to original claim)
1) Mention fed question and diversity first
(2) Plant v. Blazer Financial Services (1979) p.895
* P borrowed money from D; P sued D for not releasing info in Truth-In-Lending Act; D
counterclaims for unpaid balance
(a) Loan transaction gave rise to both P and Ds claims
(b) Fairness requires Ds debt claim to be heard too
1) Supplement jurisdiction for state debt claim
2) Congress could have made counterclaim on federal act permissive if they wanted
b. Permissive counterclaims
(1) Rule 13(b) permissive counterclaims
(a) D may state counterclaim against P that does not arise out of same T/O
(b) Must have SMJ (supplemental often not available b/c different T/O)
1) Always mention fed question and diversity first
2) 1367(b) does not kill supplemental b/c counterclaim is by D (not P)
c. Cross-claims
(1) Rule 13(g) cross-claim against co-party
(a) Party may cross-claim co-party is claim arises out of same transaction or occurrence
(b) Permissive and must have SMJ
C. Reply
1. Rule 7(a) requires reply if answer contains a counterclaim denominated as such
a. P can use all same 12(b) motions (that D had available in answer)
b. Counterclaim can be confused for affirmative defense
(1) Ex fraud can be affirmative defense to breach of K, or can constitute cause of action
2. Rule 7(a) Court may order a reply to an answer or a third-party answer
D. Amendments to the Pleadings discovery may reveal facts + parties want to change story
1. Prejudice at some point a party ought to be able to pin down the other side
a. Beeck v. Aquaslide N Dive Corp. (1977) p.470
* D led P to believe it made waterslide where P injured; then found it didnt + moved to amend
(1) Leave to amend shall be freely given when justice so requires
(a) #1 bad faith of D (should have good reason for not getting pleading right 1st time)
(b) #2 prejudice to P (statute of limitations had run, so P could not sue real D)
1) Unduly prejudiced means in relation to prejudice against D
2) It would be unfair to D to have amendment denied b/c D did not make slide
b. Rule 15(a) party may amend pleading once as a matter of course at any time b/f a responsibe
pleading is served
(1) If no responsive pleading may amend w/in 20 days after it is served
(2) If D serves motion, P still has right to amend (motion is not pleading)
2. Relation Back if statute of limitations has run
a. Amending to ADD CLAIM
(1) Moore v. Baker (1993) p.477
* P tries to amend complaint to add medical negligence to an informed consent violation
claim; negligence statute of limitations has run
(a) No relation back b/c negligence claim requires difference facts than failure to inform
(b) No relation back if new claim doesnt require same facts as original claim
1) Different events taking place before or after original claim

(2) Bonerb v. Richard J. Caron Foundation (1994) p.479

* Ps new counsel wants to amend negligence claim to add counseling malpractice
(a) Claim relates back if factual situation for 2nd claim same as original
(b) Here 2 different duties, but same transaction or occurrence
1) First claim talks about negligent supervision so sounds like 2 nd claim
(3) Rule 15(c)(2) Amended pleading relates back to the date of the original pleading when
the claim or defense asserted in the amended pleading arose out of the conduct, transaction,
or occurrence set forthin the original pleading
(a) Policy must have sufficient notice to D that new claim could be brought
b. Amending to CHANGE PARTY or PARTY NAME
(1) Worthington v. Wilson (1992) handout 181
* P filed suit against unknown named police officers; then found names thru discovery
(a) Requirements for relation back:
1) Amendment changes the party or name of party
2) D received notice of action w/in service of process (120 days)
3) D knew or should have known it was the party being sued
4) Court adds P must have made mistake on Ds name as requirement
(b) Mistake requirement defeats amendment to pleading
1) Spilly says this is wrong structure of rule does not deal w/ P state of mind
(2) Rule 15(c)(3) party added (A) has received notice so as not to be prejudiced, and (B)
knew or should have known that action would be brought but for mistake concerning identity
(a) New D must receive notice w/in 120 days of filing complaint
c. How to do Amendment to Pleadings analysis
(1) Has S of L run on new claim?
(a) NO do Rule 15(a) analysis blameworthiness of D + prejudice to P
(b) YES do Rule 15(c) relation back analysis
1) Does claim relate back?
a) Rule 15(c)(2) whether new claim arises from same facts as original; OR
b) Rule 15(c)(3) whether D received notice that action would be brought
2) Then do Rule 15(a) analysis blameworthiness of D + prejudice to P
III. PRE-TRIAL DISCOVERY
A. Generally
1. Discovery often ends litigation
a. Produces info about merits of lawsuit and parties make informed judgments settlements
b. Enables one party to simply wear down the other one
2. Modern discovery lawyers can uncover enormous amounts of information
a. Makes trials less dramatic and more boring
b. Rules say discovery should happen w/out involvement of judge
3. Rule 26 general provisions governing discovery; duty of disclosure
a. Discovery postponed until after Rule 26(f) discovery conference
B. Scope and Relevance
1. Rule 26(b)(1) Parties may obtain discovery regarding any matter, not privileged, that is relevant to
the claim or defense
a. Relevant = reasonably calculated to lead to admissible evidence (broader than admissible)
b. Another test probative and material
(1) Probative of an allegation makes the factual allegation more or less likely
(2) Material allegation must be material to a substantive legal claim
2. Blank v. Sullivan & Cromwell (1976) p.487
* Ps want interrogatories about partner promotion in sexual discrimination in hiring claim
a. Relevant b/c Ds answers could create inferences in Title VII claim
(1) D says there is no connection b/t partner promotion + associate hiring
(2) But promotion techniques are very telling of hiring methods

10

b. These inferences alone will probably not get case to jury but doesnt mean deny discovery
3. Sullivan v. Cheney (1990) p.489
* P discharged from Naval Academy b/c he was openly gay; depo question whether he had
engaged in homosexual conduct during or after discharge
a. Not relevant conduct only relevant if it was basis for Ps discharge
(1) He was discharged b/c he said he was openly gay; gay conduct doesnt matter
4. NOTE + HYPO A claims B intentionally injured him; can B discover size of As bank account?
a. Good argument for relevance b/c jury will have to make punitive damages assessment
(1) To make punitive damages have effect, must take bite out of resources
b. Final judgment rule have to finish case b/f party can appeal discovery ruling
C. Privilege
1. Rule 26(b)(1) Parties may obtain discovery regarding any matter, not privileged, that is relevant to
the claim or defense
a. Protects information from certain sources (but cannot abuse privilege)
(1) No Id rather not talk about this privilege
b. All privileges can be waived (explicitly by party or implicitly by action)
2. Traditional privileges
a. Attorney-client, doctor-patient, priest-penitent, communication b/t spouses, self-incrimination
3. Discovery: Privileged Matter James, Hazard, and Leubsdorf
a. Growth of discovery leads people to want to exclude some evidence (expand privacy privilege)
b. Upjohn v. US (1) privilege protects corporate entities as well as individuals; (2) privilege
includes corporate communications involving lower echelon employees as well as top mgt
D. Discovery Devices
1. Required Disclosures
a. Rule 26(a) parties must disclose basic info w/out awaiting a discovery request
(1) 26(a)(1) basic info on parties, documents used to support, damages, insurance
(2) 26(a)(2) disclosure of expert testimony that may be used at trial
(3) 26(a)(3) witnesses and evidence/documents that may be offered
(4) Required disclosure can be waived or avoided by court order
b. Rule 26(a)(1) disclosure must be made at or w/in 14 days after Rule 26(f) conference
2. Interrogatories
a. Rule 33 interrogatories to parties
(1) Rule 33(a) any party can serveinterrogatories, not exceeding 25 in number
(a) Can serve additional interrogatories pursuant to court order
(2) Rule 33(b) Each interrogatory shall be answered separately and fully in writing
(a) Objections to interrogatories (1) Overly broad, unduly vague, and ambiguous;
(2) burdensome and oppressive; (3) privileged information; (4) atty work-product; (5) nondiscoverable expert information; (6) not calculated to lead to discovery of evidence
(3) Rule 33(c) interrogatories can relate to anything relevant and not privileged (26(b)(1))
b. Different types of interrogatories
(1) Source (identify all employees who have been responsible for handling claims)
(2) Substantive (identify each witness you mean to introduce at trial)
(3) Contention interrogatory (do you contend that P was inside or outside the crosswalk)
(a) Cannot ask for other sides legal theory/legal questions
c. Advantages of interrogatories
(1) Relatively inexpensive as discovery device
(2) Dont have to sit in a room and wait for other party to answer
(3) Good way to get leads (for further research) or identify people you may want to dispose
(a) Responding party has duty to make rsnble inquiries to answer
d. Disadvantages of interrogatories
(1) No spontaneous responses from other side (usually no dramatic concessions)
(2) Cannot follow-up inquiry (cannot lead other party w/ questions)
(3) Responding to interrogatories is like growing mushrooms you keep them in the dark and

11

feed them mushrooms

3. Depositions
a. Rule 30 deposition upon oral exams
(1) Rule 30(a) no more than 10 depos w/out court order (must subpoena non-parties)
(2) Rule 30(d) atty may object only to assert privilege or limitation placed by court
(a) Rule 30(d)(3) persons responsible for delay or frustrating conduct may be sanctioned
b. Advantages and disadvantages of depositions
(1) Can follow-up w/ additional questions (sworn-in, on the record, transcribed)
(2) Can have subpoena duces tecum person shows up w/ certain materials so they can consult
and answer your questions
(3) Disadvantage higher costs than interrogatories
4. Requests for Production of Documents huge amounts of discovery and money
a. Rule 34 production of documents and things
(1) Rule 34(a) any party may request production of designated documents or entry on land
(a) No maximum, but discovery can always be limited under 26(b)
(2) Rule 34(b) shall request these items w/ reasonable particularity
(3) Relates to Rule 33(d) business records can be produced in lieu of interrogatory answer
b. Note there is difference b/t concluding that particular document is not included in request, and
concluding that request document is objectionable on some grounds
(1) Broad requests are usually allowable b/c requesting party does not know what other has
c. Can compel documents from non-parties in limited circumstances under Rule 45
5. Medical Examinations
a. Rule 35 party can undergo exam if mental or physical condition is in controversy
(1) Rule 35(a) can be made only for good cause; must specify place, scope, examiner etc.
(2) Must show both in controversy and good cause
(3) Only discovery device that always requires court order
b. Schlagenhauf v. Holder (1964) p.516
* Judge Holder ordered 9 exams on bus driver Schlagenhauf; bus had collided w/ trailer
(1) Rule 35 applies to Ps and Ds
(2) Rule 35 allows exam to anyone who was party to the action
(a) Doesnt matter that there was no cross-claim against driver when exams ordered
(3) Exams must be about mental/physical condition in controversy and w/ good cause
(a) If Ps injury is part of claim, or if Ds injury is part of defense exam can be ordered
(b) Here, cross-claim pleadings did not warrant broad medical exams
1) Bus driver may have to have eye exam b/c claim deals w/ drivers sight
(4) Justice Douglas dissent all should be denied b/c this is fishing expedition
6. Requests for Admission
a. Rule 36 written request for admission of truth of any matter w/in scope of Rule 26(b)(1)
(1) Rule 36(a) objection must detail why answering party cannot truthfully admit/deny
(a) Not an objection if request presents genuine issue for trial
(2) Rule 36(b) Any matter admitted under this rule is conclusively established
(a) Not evidence, but deemed to be admitted fact for purpose of pending litigation
b. Rule 37(c)(2) sanctions for not admitting the truth in Rule 36 request
E. Work Product Doctrine
1. Rule 26(b)(3) party must show substantial need or undue hardship to discover documents prepared
in anticipation of litigation or for trial by another party or partys rep
a. mental impressions, conclusions, opinions, or legal theories of an attorney or other
representative of a party are never discoverable
b. Burden is on seeker of information to show substantial need or hardship
(1) Sometimes discoverable if info is not otherwise available
(2) Facts are not work product
c. Party may obtain a statement they made previously w/out showing of need
2. Hickman v. Taylor (1947) p.525

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* Ds atty took statements of survivors of tug boat crash; P wants copies after suit is filed
a. Discovering personal recollections prepared by partys counsel in the course of his legal
duties without necessity or justification is not allowed
b. Can get work product if (1) no longer available, (2) undue hardship, (3) impeachment
3. Policy arguments
a. For work product
(1) Discovery is broad but not unlimited
(2) One party should not be able to freely gain the hard work of the other party
(3) W/out it lawyers would never want to write anything down (inefficient)
b. Against work product
(1) Discovery rules are meant to be broad to allow parties to discover true facts
4. How to do Work Product Analysis
a. Is the material requested work product?
(1) Documents and tangible things
(2) In anticipation of litigation
(a) Dont just defer to a partys definition of what is and isnt anticipation of litigation
(3) By a party or representative (accountant, consultant, other rep, etc)
(a) Not work by insurance co. in anticipation of claim
b. If YES is this kind of work product that has attys mental impressions + thought processes?
(1) If YES it is not discoverable (Hickman)
(2) If NO could still be discoverable if there is showing of necessity or hardship
c. If not work product, but atty thought process type still may be discoverable
F. Experts (didnt do in class)
1. Rule 26(b)(4)
a. Party may depose any identified witness who may present opinions at trial
b. Party may discover facts/opinions held by expert
G. Discovery Abuse and Sanctions
1. Rule 26(g) signing of disclosures and discovery requests
a. 26(g)(1) all discovery disclosures must be signed by atty to certify info is complete and correct
b. 26(g)(2) every discovery request must be signed to certify that it is
(1) Made in good faith
(2) Not improper or for harassment purposes
(3) Not burdensome or expensive
c. 26(g)(3) sanctions if certification is made in violation of rule (but use Rule 37 for sanctions)
2. Rule 37 failure to make disclosure or cooperate in discovery
a. 37(a) when responding party objects or blocks discovery request, requesting party can make
motion to compel
(1) Not the process when other party doesnt show up or ignores discovery request
(2) 37(a)(2) motion to compel must be made in good faith
b. 37(b) sanctions for failure to comply
(1) Deems facts established, prohibit evidence, strike pleadings, treat as contempt of court, etc.
c. 37(c) failure to disclosure any witness or info
d. 37(d) sanctions for not showing up to deposition, or not answering interrogatories
e. 37(g) failure to participate in framing of discovery plan
3. Chudasama v. Mazda Motor Corp. (1997) p.549
* Even tho discovery lasted 2 yrs, judge never ruled on discovery issue in minivan defect case
a. When Ps discovery requests are excessive (trying to force other party to quit b/c of expensive
litigation), courts should get involved and nip it in the bud
b. Court should dismiss weak claims (fraud) that are only there to open discovery doors
3. Kodak case reading lying about discovery and destruction of evidence causes downfall of partner,
loss of big client, and embarrassment to firm
H. Discovery and Professional Ethics
1. Destroying documents and purging computers

13

a. Legitimate reasons for wanting to limit material

(1) Do not want jury to get overwhelmed
(2) Ancillary things do not necessarily assist in search for the truth
b. Problem how far can atty go to advise clients to do something?
(1) ABA Model Rules of Professional Conduct 3.4 lawyer cannot unlawfully destroy (or assist
another in destroying) document or evidence
2. Experts huge incentive for parties w/ resources to buy up non-testifying experts
3. Discovery just pass request to client and say give me what you have filling this description?
a. ABA Model Rules of Professional Conduct 1.1 lawyer has to behave competently
(1) Be a zealous advocate
4. Responsibilities of subordinate lawyer (ABA Model Rules 5.2)
a. No Nuremburg defense
(1) But if you think partner is acting reasonably, probably will not be implicated
(2) If you think partner is acting unreasonably and you go along, could be implicated under 5.2
5. Prepping a witness
a. Do not tell client the position he ought to take
b. Explain to him the legal consequences behind each position
c. Witness cannot give answer that lawyer knows is false (ABA Model Rules 3.3)
d. Rule 26(e) if you know party has given wrong answer, duty to supplement or correct it
IV. PRE-TRIAL ALTERNATIVES TO ADJUDICATION
A. Summary Judgment
1. Rule 56 summary judgment
a. Rule 56(c) judgment shall be rendered if there is no genuine issue as to any material fact and
MP is entitled to a judgment as a matter of law
(1) Use pleadings, depositions, answers to interrogatories, admissions, and affidavits
(2) Genuine issue evidence is of such a nature that rsnble jury could return verdict for NMP
(a) Scintilla of evidence not enough to defeat summary judgment
(b) Depends on burden of proof see 2 questions below
(c) Evidence taken in light most favorable to NMP benefit of all legit inferences
b. Rule 56(d) partial summ judg (court can rule on issues if no genuine issue of material fact)
b. Rule 56(e) NMP cannot challenge summary judgment thru allegations in its pleading, but
must set forth specific facts showing that there is a genuine issue for trial
2. Has the moving party (MP) done enough in its supporting papers to warrant moving to 2 nd question?
a. Adickes v. Kress & Co. (1970) handout 255
* P claims conspiracy b/t store owner and police to arrest her b/c she is w/ blacks
(1) MP has burden of showing absence of genuine issue concerning any material fact
(2) MP has burden of showing facts to support each element of claim/defense
(a) Even if NMP does not have opposing evidence heavy burden
(3) Case does not get to 2nd question
b. Celotex Corp. v. Catrett (1986) p.630
* P sued for husbands asbestos death, but failed to produce evidence that D product caused
(1) When NMP bears burden of persuasion at trial, MP does not have to have evidence
(a) MP merely has to show that existing record contains no evidence that other side
will be able to prove essential element of its case
(b) Not requiring MP to do a lot, but more than nothing
1) MP still has to explain why evidence fails to establish other partys elements
(2) NMP will not be unnecessarily hustled into summary judgment
(a) Rule 56(f) judge can postpone/deny summary judg till NMP has put together case
c. If P = MP (has burden of production at trial) question 1 becomes
(1) Would rsnble jury have to find for MP in absence of any opposing evidence?
(2) Has P established all elements of his claim?
d. If D = MP (does not have burden of production at trial) question 1 becomes

14

(1) Celotex no evidentiary materials needed, but show that other side cannot prove element
3. Has non-moving party (NMP) done enough in its supporting papers to avoid summary judgment?
a. Arnstein v. Porter (1946) handout 267
* P sued Cole Porter for copyright infringement; D said hed never seen/heard Ps work
(1) Ds motion for summary judgment denied b/c when credibility is vital factor, P is entitled
to trial by jury
(2) Proving that D had access to Ps compositions, Ds songs were similar to Ps compositions,
and Ps strange story about stooges NMP offered enough to avoid summary judgment
b. Dyer v. MacDougall (1952) handout 271
* P sued D for libel + slander; no evidence, but hoped behavior/appearance would convince jury
(1) Chance that NMP may be able to persuade jury thru his behavior/manner/appearance AND
that NMP may get adverse witness to crack on the stand are too small to prohibit summary
judgment where it is warranted
(2) NMP did not have enough to avoid summary judgment
c. Visser v. Packer Engineering Associates (1991) p.636
* P sues D for age discrimination; D moves for summary judgment
(1) Posner we do not have to infer intent from knowledge alone (not a legal must)
(2) Posner rsnble jury could not have found for P
(a) Affidavits were shaky, but he may have been selling evidence short
(b) Affidavit testimony can only include personal knowledge (unless expert witness)
(3) B/c of burden shifting, Posner has to say that age wasnt even substantial factor
(a) If age was substantial factor, then burden shifts to D and no summary judgment
d. If P = MP or if D = MP question 2 becomes
(1) Could reasonable jury find for NMP?
(a) P has to produce more evidence to stave off, while D has to produce less evidence
(b) The higher Ps standard of proof, the harder it is to say P has produced enough evidence
(2) Is there material issue of fact relevant to element or defense?
4. Summary judgment HYPOS
a. T or F If D moves for sum judg, then all allegations made my P are assumed true
(1) FALSE indulge all rsnble inferences that are drawn from all evidence submitted by NMP
(2) This would be true for a 12(b)(6) motion
b. T or F in examining NMPs materials, judge is not allowed to judge on credibility
(1) TRUE disbelief of NMPs evidence is not basis for summary judgment
(2) But judge does not have to take impossible witnesses evidence (ex-saw from 3 mi away)
B. Pre-Trial Conference, Pretrial Order, and Judicial Management
1. Rule 16(a) judge can order attys to have pretrial conferences to discourage wasteful activities and
to encourage settlement
V. TRIAL
A. Trier of Fact Judge or Jury
1. History of juries for civil trials
a. Jury profiles vary widely b/c they are drawn from community
(1) Juries are the voice of the community
(2) Juries are temporary, lay, and democratic institution
(a) Safeguarded litigants at the bottom, administrative level
(b) Dont have to explain how they reached verdict
(3) Judges are predominantly white, male, at least middle-aged w/ specialized education
(a) Permanent, profession, and elite
(b) Must explain factual and legal reasoning
b. 7th Amendment right to jury trial for P or D in fed courts
(1) Available only in suits in courts of law (not in courts of equity)
(2) Test for right to jury trial whether party had right to court of law jury trial in 1791
(a) Today law and equity merged (so look at remedy to tell difference)

15

c. Juries decide issues of fact; judges decide issues of law

2. Rule 38(b) Any party may demand a jury trial of any issue triable of right by jury
a. Rule 38(c) if party does not specify which issues, all issues triable will be deemed demanded
c. Rule 38(d) failure of party to demand jury trial constitutes waiver by the party
(1) Can waive 7th Amendment right
3. Rule 39 trial by jury or by court
a. Rule 39(a) shall have jury trial if demanded unless parties consent to trial by court or court
finds constitutional right to jury trial does not exist
b. Rule 39(b) issues not demanded for jury trial will be tried by court unless court orders jury
4. Rule 48 no fewer than 6 + no more than 12 jurors; unless otherwise stipulated unanimous verdict
a. Many local courts expand on Rule 48 and provide explicitly for 6 person juries
b. Cali courts of jurors have to agree (in favor or against)
c. Jurors selected in question + answer process voire dire
B. Presumptions and Burdens of Proof and Persuasion
1. Reid v. San Pedro, LA & Salt Lake Railroad (1911) p.713
* Bessie (cow) was killed by RR; there was hole in fence and gate was open
a. If thru open gate owner is responsible; if thru hole/fence out of repair RR liable (negligence)
b. When things could go either way, court must enter verdict for party w/out burden of proof
c. Jury of 12 people in Utah at beginning of 20th C may find for owner of cow
2. Taxi Cab HYPO
a. If 75% of cabs are owned by white co., and 25% of cabs are owned by yellow co. can this case
go to a jury to decide which one is liable?
(1) Might not even be enough evidence to let jury decide
(2) Statistics are weak form of evidence
(a) Dont allow for consideration of other evidence (if white co. hired unlicensed drivers)
(3) Standard to decide jury rationality is not about numbers about fairness
(4) Could be enterprise liability (like Summers v. Tice someone shot, so find both liable)
3. Burdens (judgment not about truth, but who presented more credible version of case)
a. Burden of Persuasion
(1) Criminal beyond reasonable doubt
(2) Civil by the preponderance of the evidence; probable
(a) Some civil causes of action (fraud) require clear and convincing evidence
b. Burden of Production
(1) Requires party to produce, find, and present evidence in the first place
(a) Party w/ burden of production can lose fast is they produce nothing (Celotex)
(2) Different parties may have burden of production on different issues
(a) Ex P = negligence, but D = statute of limitations
4. Controlling jury rationality
a. Courts control flow of information
(1) Law of evidence; Power of instructing the jury on the law
(a) Courts can comment on evidence but cannot trespass on jurys decision making
(b) Jury instructions written for (1) jury and (2) app ct (can reverse for instruction mistake)
b. Courts control what jury does w/ info (no wrong conclusions)
(1) Directed verdict; JNOV; New trial
c. Taking away power from juries
(1) New trial, jnov, directed verdict, summ judg, even 12(b)(6) to some extent
C. Judgment as a Matter of Law (Directed Verdict and J.N.O.V.)
1. Rule 50 JMOL and renewed JMOL
a. Rule 50(a) if no legally sufficient evidentiary basis for rsnble jury to find for party on issue,
court may grant motion for JMOL against party for claim/defense
(1) 50(a)(2) motions for JMOL can be made at any time b/f submission of case to jury
b. Rule 50(b) if court does not grant JMOL, case goes to jury
(1) Party may file motion to renew JMOL w/in 10 days after entry of judgment (+ new trial)

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(2) 50(b)(1) if verdict was returned, court can (A) allow judgment to stand; (B) order new
trial; or (C) direct entry of JMOL
(3) 50(b)(2) if no verdict returned, court can (A) order new trial; or (B) direct entry of JMOL
c. Rule 50(c) if granting renewed JMOL, court can conditionally grant new trial
(1) If judgment reversed on appeal, new trial shall proceed unless appellate ct otherwise orders
(2) If motion for new trial is conditionally denied party may appeal
d. To make jnov motion, you must have motioned for directed verdict at close of evidence
(1) B/c directed verdict is constitutional, and jnov seen as delayed directed verdict
e. Ground for motion sufficiency of evidence (in light most favorable to NMP) and draw all
reasonable inferences that favor NMP
2. Directed Verdict controls juries b/f verdict
a. Pennsylvania RR v. Chamberlain (1933) p.724
* Ps H killed in RR yard claims H was knocked off in collision, run over; direct verd for D
(1) Witnesses for P and D
(a) For D = 3 eye witnesses (including people on string) said there was no collision
(b) For P = 1 witness who wasnt paying attention but heard loud crash; inferred collision
1) Also evidence that 9-car string was moving faster than Hs string and caught up
2) Witness credibility usually issue for jury
(2) Directed verdict if other partys case rests on mere speculation and conjecture
(3) If reasonable men could differ, send case to jury
(a) Old if there was scintilla of evidence for NMP, the MP cannot have direct verdict
(b) New courts take more pragmatic approach and weigh evidence
1) Evidence viewed in light most favorable to NMP benefit of all legit inferences
b. Railroad Co. v. Stout (1873) handout 279
* P child injured on RR turntable located unenclosed w/ latch unlocked near traveled road
(1) Where sensible men could infer 2 diff. things from undisputed facts send case to jury
(a) No directed verdict for D
(2) Policy life experiences of 12 men drawing one unanimous conclusion is wiser and safer
than conclusion of one man (judge)
(3) Other reasons to go to jury negligence (reasonable person standard) is normative question
(a) No great cost if different communities have different standards for reasonable care
3. J.N.O.V. controls juries after verdict
a. If verdict is unsupportable b/c no rational jury could have found for NMP (winning party)
b. Why if judge granted directed verdict motion and app ct reversed would need new trial
c. Must motion for directed verdict at close of all evidence b/f motion for jnov
d. Appellate ct reviews w/ abuse of discretion (???)
D. Verdicts and New Trial Motions another way to take power from jury
1. Rule 59(a) grounds for granting new trial
a. Flawed procedure (not likely that judge will admit he/she made mistake during trial)
b. Verdict against weight of evidence (jury verdict could not have been found by rsnble people)
(1) Less harsh than jnov (merely begins contest again), so standard lower:
(a) If verdict is against the great weight of the evidence (p.736)
c. Rule 59(b) motion must be made w/in 10 days of judgment
d. Does not require prior motions; can be raised sua sponte (Rule 59(d))
2. Lind v. Schenley Industries (1960) p.736
* P says D promised him pay increase + commission (making him higher paid than most execs)
a. Basis for ordering new trial (conditional w/ jnov) = verdict was against weight of evidence
(1) Standard for review is abuse of discretion
(2) But appellate ct must look closer at verdict against evidence than mere flawed procedure
b. When jury verdict turns on credibility of witnesses no jnov
c. New Trial standard miscarriage of justice (not just that judge would have voted other way)
3. Trial ct judge has 4 options (creates potential problems for appellate ct) from 50(c)
a. Grant jnov w/ conditional grant of new trial (can appeal if jnov reversed, just new trial)

17

b. Grant jnov w/ conditional denial of new trial (can appeal very rare)
c. Denial of jnov w/ conditional grant of new trial (cannot appeal)
d. Denial of both motions (most common) (can appeal)
4. Conditional New Trials
a. Limited to damages judgment on liability correct, but jury award too high or low
b. Remittur judge orders new trial unless P agrees to accept reduced damages
(1) Test does damage award shock the conscience?
c. Additur judge orders new trial unless D agrees to accept increased damages
(1) Unconstitutional violates 7th Amendment
VI. APPEAL (must be filed w/in 30 days)
A. Final Judgment Rule timing of appeal
1. Final decision = one which ends the litigation on the merits and leaves nothing for the court to do
but execute the judgment (Catlin v. United States - 1945)
a. Ex order denying summary judgment and granting new trial are not appealable still things to
decide on merits of case
2. USC 28 1291 courts of appealsshall have jurisdiction of appeals from all final decisions of the
district courts of the United States
3. Liberty Mutual Insurance Co. v. Wetzel (1976) p.764
* P sued D employer for Title VII violation; dist ct found for P, but game P nothing she asked for
a. When dist ct finds for P, but leaves unresolved Ps request for injunction or damages, the
order is not appealable to the Ct of Appeals
b. Rule 54(b) deals only w/ multiple claims (single claim + damages are not multiple claims)
(1) Request for several types of relief + one legal theory = single legal claim
c. If dist ct had issued injunctive relief this interlocutory order would be appealable under 1292
4. Exceptions
a. Rule 54(b) when there are multiple claims, court may direct entry of final judgment as
tofewer than all the claims
(1) Entering judgment for some claims earlier than others allows these to be appealable
(2) Exception to rule that judgment is final only after all claims have been resolved
(a) Appellate decision may clarify issues that persist during trial; or
(b) Issues involved for the loser wont complicate case for remaining parties
b. Collateral Order Doctrine (judge-made)
(1) Certain legal rulings that are collateral to rights asserted in the action are too important to
be denied review (from Cohen) must satisfy 3 conditions:
(a) Conclusively determine the disputed question sought to be immediately appealed
(b) Resolve an important issue completely separate from merits of the action AND
(c) Effectively unreviewable on appeal from a final judgment
(2) Lauro Lines v. Chasser (1989) p.773
* D moves to dismiss wrongful death suit; district ct says no; D appeals
(a) Order denying motion to dismiss is not decision on the merits that ends
litigation(Catlin)
(b) Denial of motion to dismiss based on claim of absolute immunity from suit =
immediately appealable
(c) Lays out 3 conditions from Cohen, above
c. Injunctions are immediately appealable
d. Extraordinary writs mandamus
B. Interlocutory Appeals (usually cannot appeal interlocutory (non-final) orders/rulings) exception 5
1. USC 28 1292(b) permits dist ct to certify interlocutory appeals from non-final judgments
a. Test immediate appeal from the order may materially advance the ultimate termination of
the litigation
(1) Also order involved controlling question of law as to which there is a substantial
ground for difference of opinion

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b. Ct of Appeals must accept the appeal

(1) Application must be made w/in 10 days of the order
(2) Test shall not stay proceedings in the district court
2. Interlocutory appeals not widely used
a. Dist ct doesnt want to give up power + app ct doesnt want to rule on every little thing
C. Scope of Review
1. Rule 52 findings by the court in non-jury trial
a. Rule 52(a) court shall state conclusions of law and fact separately
(1) Findings of factshall not be set aside unless clearly erroneous
(2) Clearly erroneous app ct is left w/ definite and firm conviction that mistake has been
committed
b. Rule 52(b) motion to amend findings w/in 10 days after entry of judgment
c. Rule 52(c) after party has presented all evidence on issue, judge may rule against party
2. Pullman-Standard v. Swint (1982) handout 313
* Dist ct found that seniority system was not discrim; app ct reversed and then found discrimination
a. S.Ct. found that app ct was mixing law and fact
(1) Here, discriminatory intent is finding of fact to be made by trial court
(a) App ct may only reverse if finding is clearly erroneous under Rule 52(a)
(2) But discriminatory intent must be proved beyond reasonable doubt (legal standard)
a) So could review de novo
b. When app ct finds that dist ct failed to make a finding b/c erroneous view of law - remand
(1) Trial court alone is in charge of fact-finding
c. Much depends on which standard of review app ct uses
D. Standards for Review
1. Finding of fact set aside only if clearly erroneous (Rule 52(a))
a. Usual way for app ct to review jury verdict is thru denial of new trial motion-abuse of discretion
2. Conclusion of law de novo (do it all over again)
a. Jnov is ruling of law that is reviewed de novo
3. Exercise of discretion set aside only if abuse of discretion
a. Motion for new trial, motion for severance, evidentiary rulings, choice of Rule 11 sanction
4. Can also find harmless error cannot reverse
a. 28 USC 2111 errors or defects that do not affect the substantial right of the parties
b. After finding that there was an error, app ct has to determine whether error was harmful
VII. Who Can Be a Party? STANDING and PARTY JOINDER
A. Standing to Sue has statute conferred right to sue?
1. Sierra Club v. Morton (1972) handout
* Secrtary of Interior granted permit to Disney to develop land, violating his duties but who sues?
a. To have standing, there has to be an injury (here, yes) and injury must affect Ps (here, no)
(1) Sierra Club must assert that its members would be affected in their activities or pastimes
b. Why? limit lawsuits (cant sue anyone anytime you want to)
(1) Gap b/t saying you want something to happen + having cognizable legal claim
c. Arguments against
(1) No legal vested interest in keeping environment pure (if no one visited, no one could sue)
(2) Blackmuns dissent expand traditional concepts of standing to include one who has
sincere, dedicated, and established status
(3) Douglas dissent let rivers and trees have standing (other inanimate objects are parties)
2. Gilmore v. Utah (1976) handout
* G sentenced to death + wants punishment; his mother tries to sue b/c statute unconstitutional
a. When murderer competently (knowingly + intelligently) waives his right to appeal, 3 rd party
has NO standing to litigate any claim on his behalf
b. Marshalls dissent criminal D has no power to agree to be executed under an unconstitutional
statute

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B. Joinder of Parties
1. Permissive Joinder of Parties
a. Rule 20(a) may join as P or be joined as D if (dont have to join):
(1) Claims arise out of same transaction and occurrence, and
(2) Claims give rise to at least one common question of law or fact
* Then make sure there is SMJ
b. Rule 20(b) court has discretion to order separate trials to avoid embarrassment, expense, delay
c. Mosley v. General Motors Corp. (1974) p.904
* 10 employees bring race discrim suit against GM/union; dist ct ordered Ps actions severed
(1) Ps claims arose out of the same transaction or occurrence
(a) STO = all logically related events entitling person to institute legal action
(2) Ds discrim is basis of recovery, so Ps share common question of law or fact
(a) Exists in wide range of contexts (ex discrim conduct is basic to class of Ps)
(3) If court orders separate trials under 20(b), reversed only if abuse of discretion
2. Third-Party Practice (Impleader)
a. Rule 14 third-party practice
(1) 14(a) D (3rd-party P) may implead D2 if D2 may be liable to D for all or part of Ps claim
against D
(a) D2 shall make any defenses to Ds claim, counterclaims against D, and cross-claims
against other 3rd-party Ds
(b) D2 may assert against P any defenses
(c) D2 may also assert any claim against P arising out of the same transaction/occurrence
(d) P may assert any claim against D2 arising out of the same transaction/occurrence
(e) Any party may move to strike 3rd-party claim (severance or separate trial)
(f) D2 may bring similar claim against D3 if D3 derivatively liable
(5) 14(b) P may bring in 3rd-party if P meets 14(a) requirements
b. 28 USC 1367(b) supplemental jurisdiction
(1) No supp jurisdictionover claims by Ps against persons made parties under Rule 14
(2) Codifies Owen v. Kroger
(3) Does not apply to claims not made by Ps; applies only to diversity jurisdiction
c. Watergate Landmark Condo Association v. Wiss, Janey, Elstner Associates (1987) p.911
* Condo assoc sues mgt firm, and mgt firm wants to sue Brisk (CA v. MF v. Brisk)
(1) 3rd-party D must be derivatively liable to D (could reimburse D for all or part)
(a) Cannot implead 3rd-party solely b/c he would be liable to P
(b) Ex joint tortfeasor, vicarious liability, warranty
(2) 1367(b) does not apply to 3rd-party claim brought by D
(a) If Brisk is impleaded as 3rd-party D, then condo assoc sues them - 1367(b) would apply
(3) No impleader its him, not me; Yes impleader if me, then him too
d. Owen Equipment cases
(1) Kroger v. Omaha Public Power District (1975) p.920
* K(Iowa) sues OPPD; OPPD impleads Owen and then wins summary judgment
(2) Owen Equipment & Erection Co. v. Kroger (1978) p.922
* P asserts claim against Owen; later finds that Owens principle place of business is Iowa;
does supp juris extend to claim asserted by P against non-diverse 3 rd party D?
(a) No supplemental jurisdiction over claim by P against 3 rd-party D
1) Claim by P is new and independent claim
2) Claim is ok if fed question or diversity jurisdiction
3. Compulsory Joinder Necessary and Indispensable Parties
a. Rule 19 joinder of persons needed for just adjudication
(1) Rule 19(a) person must be joined as party if:
(a) In the persons absence complete relief cannot be accorded to those already parties, or
(b) Person claims interest and disposition of action w/out them may
1) Impair or impede the persons ability to protect that interest

20

2) Leave persons already parties subject to risk of multiple or inconsistent obligations

(2) 19(a) - if venue/juris is inappropriate for joined party, court must deny (then Rule 19(b))
(3) Rule 19(b) party should be joined, but cannot (b/c defeat jurisdiction or venue), consider:
(a) Judgment might be prejudicial to unjoined party or those already parties
(b) If prejudice can be lessened by protective shaping of relief or other matters
(c) Whether judgment rendered in unjoined partys absence will be adequate
(d) Whether P will have adequate remedy if action dismissed for nonjoinder
b. Helzbergs Diamond Shops v. Valley West Des Moines Shopping Center (1977) p.930
* H and VW sign K that limits # of jewelry stores in mall; VW signs K w/ Lords violation
(1) No compulsory joinder just b/c persons rights/obligations under entirely different K will be
affected by result of the action
(2) Here, Lords may be joined under 19(a)(2)(i) if feasible (but no personal jurisdiction)
(a) Then consider 19(b) judgment rendered in Lords absence would be OK
c. NOTE Rule 12(b)(7) dismisses for failure to join a party under Rule 19
d. How to do compulsory joinder analysis
(1) Is party necessary? Rule 19(a)
(2) If necessary, can party be joined? Rule 19(a) pers jurisdiction, SMJ, and venue
(3) If necessary and cannot be joined, is party indispensable and case must be dismissed? 19(b)
4. Intervention 3rd-party joins himself as P or D
a. Rule 24(a) intervention of right anyone shall be permitted to intervene if:
(1) Applicant claims an interest relating to property or transaction
(2) Outcome of action may impair or impede applicants ability to protect interest
(3) Applicants interest is not adequately represented by existing parties
b. Rule 24(b) permissive intervention anyone may intervene if:
(1) Applicants claim/defense and main action have question of law or fact in common
(2) Court has discretion whether intervention will unduly delay or prejudice
c. Natural Resources Defense Council v. U.S. Nuclear Regulatory Commission (1978) p.940
* AMC + Kerr-McGee want to intervene action may prohibit them getting uranium licenses
(1) They have interest doesnt have to be direct interest if it would be impaired by outcome
(2) Their interest would be sufficiently impaired if court found no one could get license
(3) Other already existing parties do not have same interests at heart
5. Interpleader combine separate actions (stakeholder v. those who want the stake)
a. Rule vs. Statutory Interpleader 2 alternative ways for parties to invoke interpleader
(1) 28 USC 1335
(a) Diversity jurisdiction 2 claimants must be diverse + $500 in controversy
(b) Personal jurisdiction nationwide service of process
(c) Venue residence of one or more claimants
(d) Injunctions statutory authority for injunctions
(2) Rule 22
(a) Diversity jurisdiction complete diversity + $75,000 in controversy (if so, use Rule)
(b) Personal jurisdiction need personal jurisdiction + Rule 4 service of process
(c) Venue residence of any claimants (if all from one state); dist where dispute arose; dist
where property is; or (if no other) dist where any claimant can be found
(d) Injunctions where necessary in aid of jurisdiction
b. Cohen v. The Republic of the Philippines (1993) p.957
* Cohen has painting, but many claim they own it including Philippines + Imelda Marcos
(1) Marcos can intervene in interpleader action for painting b/c she meets requirements of 24(a)
6. Class Actions
a. Rule 23 class actions
(1) 23(a) prerequisites: 1 numerosity class is so numerous that joinder of all is impractical;
2 commonality questions of law or fact common to class; 3 typicality claims/defenses of
rep parties are typical of claims/defenses of class; and 4 adequacy rep parties will fairly and
adequately protect the interests of the class

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(2) 23(b)(1) separate actions by members would create inconsistent decisions or impair
interests of other members (ex b/c 1st suit would break the bank)
(3) 23(b)(2) opposing party has acted on grounds generally applicable to whole class, so
injunctive relief is appropriate (civil rights cases)
(4) 23(b)(3) common questions of law/fact predominate + clss actn superior to other methods
(a) Consider 1 interest of class members having individual actions; 2 extent and nature of
litigation already commenced; 3 desirability or undesirability of particular forum; 4
difficulties in mgt of class action
b. Notice in class actions must satisfy statutory and constitutional requirements
(1) Satisfy Mullane standard unless 23(b)(2) b/c makes no sense to opt-out of injunction
(2) Must tell members they can opt-out, will be bound by judgment, may appear w/ an atty
c. Settlement must have court approval
b. Communities for Equity v. Michigan High School Athletic Assn. (1999) p.968
* Title IX case for all present and future female athletes who are deterred from participating
(1)
c. Generally
(1) All conclusive adjudications of peoples rights cannot take second bite at apple
(2) Joinder devise that alters substantive law in many ways
(a) Diversity action only look at citizenship of the rep
(b) If jurisdiction has overruled Zahn only rep must have over $75,000 claim
(3) How many people does it take to bring class action?
(a) More than 100 = always enough; less than 10 = never enough; 10-100 = depends on case
VIII. COMPLETED ADJUDICATION RES JUDICATA & COLLATERAL ESTOPPEL
A. Res Judicata (Claim Preclusion)
1. Different Theories Same cause of action vs. Same transaction
a. U.S. Const. Art. IV 1 Full Faith and Credit shall be given in each State to thejudicial
Proceedings of every other State
(1) If 1st and 2nd courts are state courts
b. 28 USC 1738 judicial proceedingsshall have the same full faith and credit in every court
within the United States
(1) judicial proceedings of any court of any such Stateshall be proved and admitted in other
courts within the United States
(2) If res judicata doctrine would require other courts in same state to treat judgment as final +
preclusive, full faith and credit will generally require courts of other states to give it same effect
(3) If 1st court is state and 2nd court is federal
c. THEORY #1 1 suit precludes 2nd where parties and cause of action are identical (Redfern)
* Where evidence necessary to sustain 2nd verdict would sustain first (common core of op. facts)
THEORY #2 when both suits arise out of the same transaction (Hagee Ill. law)
* Broader than theory #1
(1) Frier v. City of Vandalia (1985) p.799
* D wins state ct replevin claim for towing cars w/ lawful process; then 1983 claim
(a) If two cases have same core of operative facts then 2 nd barred by res judicata
1) 1738 same preclusive effect that state ct would have given use state law
(b) Claim preclusion compels parties to consolidate all closely related matters into 1 suit
d. Res judicata generally one bite at the apple rule (but always involves 2 cases)
(1) Must satisfy three elements: 1 valid, 2 final judgment 3 on the merits
(a) Valid = jurisdiction; final judgment = like appeal; on the merits = below
(2) GOALS efficiency, consistency, finality
(3) Res judicata is an affirmative defense under Rule 8(c) may be waived
(4) You cannot have res judicata operate against you (if 1 st juris was limited to claims of $5000)
(5) HYPO case 1 A v. B for personal injuries in car crash; case 2 B v. A for personal injuries
(a) No res judicata b/c different P + D; but would be if juris has compuls counterclaim rule

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(b) Also if P sues 2Ds, Ds must bring whatever cross-claims they have or forever waive
(6) HYPO case 1 A v. B for personal injuries in car crash; case 2 A v. B for property damage
(a) Same P + D, valid judgment on the merits, STO = res judicata
(b) Minority view identical cause of action no res judicata
2. Identity of Parties
a. Searle Brothers v. Searle (1978) p.818
* Case 1 divorce and W gets all property; case 2 Hs sons sue to get back their property
(1) Privity person so identified in interest w/ another that the represents the same legal right
(2) Sons were not party or privies in case 1 (H was acting as individual and impossible to
intervene) and their issue was never litigated = no res judicata
(3) Dissent sons were actively involved in case 1, partnership was informal, W has to litigate
same facts = should be res judicata
b. Where privity is found
(1) Mutual or successive relationship to property rights (buy property burdened w/ easement)
(a) Privity decedent/administrator; beneficiary/trustee; insured/insurer
(2) Agents and principals are usually not in privity (no husband/wife; no parent/child)
(a) Everyone should have their day in court
3. Final Judgment and Judgment on the Merits
a. Gargallo v. Merrill Lynch (1990) p.830
* Case 1 ML sues state ct for brokerage account debt (state ct) + G counters for fed securities
violation; Gs suit dismissed (discovery sanctions); case 2 G sues securities violation (fed ct)
(1) Under Ohio law dismissing w/ prejudice is a final judgment upon the merits
(a) Case 2 was same cause of action so res judicata applies
(2) 1738 requires fed ct to give state ct judgment same preclusive effect
(3) But judgment rendered by ct lacking SMJ = NO res judicata (judgment not valid)
b. What constitutes final judgment
(1) YES FINAL final even though appeal is pending; full jury trial; directed verdict; summary
judgment; 12(b)(6) dismissal; dismissal for failure to prosecute; Rule 11 sanctions (need bite)
(2) NOT FINAL Rule 41(b) lack of jurisdiction, improper venue, failure to join party
4. How to do Res Judicata Analysis
a. Identify 2 cases
b. Discuss elements of res judicata
(1) Same parties (or privity); narrow or broad test (Frier); valid final judgment on the merits
B. Collateral Estoppel (Issue Preclusion)
1. What is an issue?
a. Issue Preclusion when issue of fact or law is actually litigated and determined, and the
determination is essential to the judgment
b. 2 issues must be identical (whether from same or different claims)
2. Actually Litigated and Determined
a. Illinois Central Gult RR v. Parks (1979) p.836
* Case 1 = J+B v. RR (B wins $$, J loses on consortium claim); case 2 = J v. RR for his injuries
(RR wants collateral estoppel b/c loss may mean that J was contributorily negligent)
(1) No collateral estoppel b/c general verdict makes it difficult to determine what case 1 decided
(a) Js loss means either 1 he sustained no damages or 2 he was contributorily negligent
(b) RR (claiming collateral estoppel) has burden of proving which one verdict relied on
(2) Sometimes you can infer why general verdict was granted
b. Dismissal on jurisdictional grounds does not develop issues that qualify for collateral estoppel
(1) If dismissals for sanctions, no issues were actually litigated and decided
3. Essential to the Judgment
a. Issue in case 1 must be consistent w/ judgment for collateral estoppel to apply to case 2
(1) 1st Restatement when alternative grounds for decision exist, both should be precluded
(2) 2nd Restatement when alternative grounds for decision exist, neither precluded
4. Mutuality

23

a. Parklane Hosiery Co. v. Shore (1979) p.845

* Case 1 = SEC sues Parklane for securities violation; case 2 = Shore sues Parklane for
securities violation (can Shore use findings from case 1 trial against Parklane?)
(1) Offensive non-mutual collateral estoppel is OK when:
(a) P could not join on previous action (although no duty to intervene Martin)
(b) No unfairness to D had every incentive to litigate case 1 fully + vigorously
(c) Judgment in case 1 was not inconsistent w/ any previous decision
1) Protects against case where Ps1-25 lose, and P26 wins so Ps27-50 should win
(2) Collateral estoppel is not repugnant to 7th Amendment (p.851)
b. Blonder-Tongue abandoned mutuality requirement (had been required at C/L)
(1) B-T said defensive non-mutual collateral estoppel is OK
(a) P cannot assert claim that P had previously litigated and lost against another D
(2) Gives P strong incentive to join all potential Ds in one action
c. Party against whom issue preclusion is being applied must have been party (or privy) to case 1
(1) Ex if case 1 is W v. RR, then H can use findings against RR in case 2 H v. RR, but RR
cannot use findings against H (asymmetrical)
(2) But issue preclusion not permitted against U.S. govt
C. Preclusion and Public Law Litigation
1. Martin v. Wilks (1989) p.948
* Case 1 = black firefighters against city for Title VII violation settle on consent decree; case 2 =
white firefighters against city for denial of promotions b/c consent decree
a. Voluntary settlement b/t employer + one group of employees cannot settle the conflicting claims
of another group of employees who did not join agreement
b. Not bound by judgment of case you were not in (everyone gets day in court)
(1) No duty to intervene
c. Its the burden of P (black firefighters) to bring in any people who may later bring suit
(1) Should use Rule 19(a) compulsory joinder
(2) But once they were joined, they could have blocked settlement
IX. PERSONAL JURISDICTION
A. Origins
1. Pennoyer v. Neff (1877) p.77 presence and consent
* Case 1 (state) Mitchell sues Neff for unpaid fees in Oregon, default, seize land obtained after
judgment and sell; Case 2 (federal) Neff sues Pennoyer to get land back
a. Due process of law would require appearance or personal service b/f D could be personally
bound by any judgment rendered in personam
b. Service of process by publication is only allowed where non-resident property in state is attached
by the court before litigation in rem
(1) Ds rights in that property must be adjudicated
c. The authority of every tribunal is necessarily restricted by the territorial limits of the State in
which it is established (p.78)
(1) States power only extends to edge of its borders
d. Collateral attack in a 2nd proceeding, D may attack judgment rendered w/out jurisdiction if D
did not appear at all in the proceedings
e. Deserted spouse could sue for divorce (tho not alimony or child support) even if absent spouse
could not be served w/in the state
2. U.S. Const. Art. IV 1 full faith and credit clause
3. U.S. Const. Amend. XIV 1 nor shall any State deprive any person of life, liberty, or property,
without due process of law
4. Pennoyer became unworkable transient presence in state, automobiles, corporations, etc.
B. Types of Jurisdiction
1. In personam normal form of action against individual, company, or some entity
2. In rem action against property (specific thing)

24

a. Ex In re (plot of land); In re (someones estate); probate proceeding; registration of title

3. Quasi in rem two types
a. Type I dispute is really about property itself
(1) Ex quiet title; Edlean Bearle suing Woody Bearle for rights to Slaugh house
(2) D is person who is claiming property rights
b. Type II attachmnt proceeding where property is means of satisfying possible judgmnt against
(1) Ps claim is usually not connected to property that is attached
4. Specific + general personal (in personam) jurisdiction
a. General continuous contacts so pervasive so as to subject someone to juris thru out forum
b. Specific jurisdiction confined to such instances where cause of action relate to jurisdiction
5. Ways to challenge jurisdiction
a. Do nothing collateral attack is risky b/c cannot argue merits if personal jurisdiction upheld
b. Pre-answer motion (12(b)(2)) or (if none) as a defense in the answer
(1) Litigating other issues and failing to challenge jurisdiction in these 2 = waiver (12(h))
(2) You may join 12(b)(2) defense w/ other 12(b) defenses w/out waiving pers juris
c. Special appearance not equated w/ presence or consent
(1) Cali move to quash service of process (if denied D must seek immediate app review)
C. Minimum Contacts
1. International Shoe Co. v. Washington (1945) p.95
* IS says no personal juris in Wash., where they have 11-13 sales reps paid $31,000 in commission,
supply shoe samples, rent permanent sample rooms, and shipped goods to Wash. to fill orders
a. State can assert personal jurisdiction b/c D has minimum contacts w/ forum state so suit does
not offend traditional notions of fair play and substantial justice
(1) 2 part test contacts and fairness
b. Due process depends on quality and nature of activity
(1) Soliciting business, having sales reps there, receiving benefit + protection of laws, etc.
(2) Unconstitutional w/out minimum contacts (but can be served outside state)
c. Factors that determine whether Ds contacts w/ state create personal jurisdiction (fairness):
(1) Magnitude; purposefulness; systematic + continuous nature; relation b/t contacts and cause
of action; availability of witnesses + evidence; forum interest in suit
2. Shaffer v. Heitner (1977) p.104
* Shareholder derivative action on behalf of corp against officers (quasi in rem Type II)
a. Use International Shoe minimum contacts test for all assertions of jurisdiction (q.in rem too)
b. In quasi in rem action, property alone does not create jurisdiction (if suit not about that property)
(1) For constitutional due process, D must have minimum contacts in state
(2) So property wont support general jurisdiction, but will support specific jurisdiction
c. Overruled Harris v. Balk said debt could be attached to subject D to jurisdiction
3. World-Wide Volkswagen Corp. v. Woodson (1980) p.119
* Ps purchase Audi in NY; driving to Ariz, car crashes in Okla; sue retailer + distributor in Okla
a. Ds have no minimum contacts w/ Okla b/c they did not purposefully avail themselves
(1) Did not reach out to Oklahoma to distribute cars or advertise
b. Foreseeability relevant
(1) NOT foreseeability that product will travel to another state (car, chattel, etc)
(2) Foreseeability that D should expect to be haled into court in forum state
(a) Here, Ds do not advertise or distribute to Okla; Ps unilateral action took car there
4. Asahi Metal Industry Co. v. Superior Court (1987) p.129
* Asahi sells valves to Taiwan co. who sells to California; Asahi sued in Cali (no majority)
a. OConnor minimum contacts = awareness stream of commerce will bring product in state
PLUS action by D purposefully directed toward forum state (here, no min. contacts)
(1) Designing product for state, advertising/marketing, providing advice to customers in state
b. Brennan injecting goods into stream of commerce and reasonably anticipating that they will get
to state suffices for jurisdiction (here, no)

25

5. Burger King Corp. v. Rudzewicz (1985) p.137

* BK sues Mich franchise in Fla for back rent
a. Minimum contacts and fairness analysis
(1) Contacts Ds purposefully directed their activities to forum residents (BK)
(2) Fairness to defeat jurisdiction, must show that litigation is so gravely difficult and
inconvenient that a party unfairly is at severe disadvantage in comparison to his opponent
(a) Wealth and negotiation power of P over D does not seem to matter
6. Young v. New Haven Advocate (2002) handout
* Va prison warden sued local Conn newspaper in Va for defaming him on the internet
a. Va cannot constitutionally exercise jurisdiction over Conn paper b/c paper did not manifest an
intent to aim their website or posted articles at Va audience
(1) Test for internet contacts for specific jurisdiction
(a) 1 Directs electronic activity into State 2 w/ manifested intention of engaging in business
or other interactions w/in State, and 3 activity creates (in person in State) cognizable legal
harm
7. Washington Equipment Manufacturing Co. v. Concrete Placing Co. (1997) p.148
* CPC gets certificate of authority to build 2 roads in Washington, then are sued in Wash
a. Just b/c foreign corp does business in state, does not = consent to general jurisdiction
8. Burnham v. Superior Court (1990) p.150
* H served w/ divorce papers while in Cali for short visit to do business and see children
a. Scalia jurisdiction based on physical presence alone constitutes due process b/c it is one of
the continuing traditions of our legal system
(1) Maybe infer attachment of property for in rem case may be enough for jurisdiction
b. Brennan all assertions of jurisdiction must be evaluated according to minimum contacts
c. Doesnt apply to corporate Ds (???)
D. Notice and Service of Process must meet both constitutional and statutory requirements
1. Background
a. Pennoyer equated power w/ personal service of process buried question of notice
b. Pennoyer court seizure of property accomplishes notice b/c permissible for state to assume that
people kept an eye on their property
(1) In rem proceedings
c. Notice and minimum contacts are requirements derived from Due Process clauses
2. Mullane v. Central Hanover Bank & Trust Co. (1950) p.175
* NY banking law allows people to pool small amounts of money for trust funds; how to notify fund
holders of annual proceeding that determines whether administrator has violated fiduciary duty?
a. Constitutional standard (due process) notice is reasonably calculated, under all the
circumstances, to apprise interested parties ofthe action and afford them an opportunity to
present their objections
b. Published notice is ok for parties whose interests or addresses are unknown to the trustee
c. When names and addresses of those affected by a proceeding are known, must use mail
to apprise them of its pendency
(1) When property is brought into court, publication not adequate
3. Rule 4 (Statutory Standard) Summons
a. Rule 4(c) P is responsible for service of summons and complaint by any person (not a party)
b. Rule 4(d) waiver of service
(1) 4(d)(1) D who waives service does not waive objection to venue/jurisdiction
(2) 4(d)(2) P may request that D waive service by sending request through mail
(a) If D in US fails to comply w/ waiver, D must pay for subsequently costs of service
(b) Costs to effect process, costs + reasonable atty fees for any motion to collect (4(d)(5))
(3) 4(d)(3) if D waives, D has 60 days (from date waiver sent) to answer complaint (not 20)
(4) By waiving service, D waives 12(b)(4) and (5) objections to sufficiency of summons and
method of service
c. Rule 4(e) service upon individuals in U.S.

26

(1) 4(e)(1) allows service pursuant to law of the state

(2) 4(e)(2) 1 serve individual personally; 2 leave copy at house or dwelling place w/ one of
suitable age and discretion; 3 serve Ds agent authorized by appt or law
d. Rule 4(f) service upon individuals in foreign countries
e. Rule 4(h) service upon corporations
(1) 4(h)(1) allows service pursuant to state law
(2) 4(h)(1) serve officer or managing/general agent (someone w/ enough responsibility)
f. Rule 4(m) service must be w/in 120 days of filing complaint (court may extend w/ good cause)
g. Rule 4(n) if D cannot be served, court may assert jurisdiction over Ds property w/in district
E. Long-Arm Statutes
1. Does it meet constitutional requirement (minimum contacts) + does states long-arm allow?
a. Just b/c its constitutional doesnt meet state will grant power
b. If long-arm does not allow, case must be dismissed for lack of personal juris
(1) D can later attack this collaterally (in 2 nd proceeding)
c. Historically, long-arms principally concerned w/ nonresident Ds (not present at time of suit)
2. Different states can mark out different areas of personal jurisdiction
a. Gibbons v. Brown (1998) p.192
* G sued Mr. B in Fla for car crash; 2 yrs later, Mrs. B sues G for her injuries in same crash
(1) Fla long-arm = D must be engaged in substantial and not isolated activity w/in state
(2) Just b/c G brought case 1 in Fla does not mean there is personal juris over her for case 2
(a) Case 1 was 2 yrs earlier and involved G + a non-party (Mrs. B not even involved)
(b) Even suit w/ same subject matter is not a substantial enough contact
b. NY long-arm = D must regularly solicit business or engage in any other persistent conduct
and should reasonably expect act to have consequences in the state
c. Calif long-arm = authorizes jurisdiction in any case that would be permitted by Constitution
(1) Dont need 2 part inquiry (just do Constitutional inquiry minimum contacts)
d. Long-arm that specifies activities or effects w/in state = pretty similar to minimum contacts
3. There is no federal long-arm statute
a. Rule 4(k)(1)(A) default principle that state long-arm will govern fed ct sitting in state
b. Rule 4(k)(1)(B) for 3rd party (Rule 14) or compulsory joinder party (Rule 19) service can be
made no more than 100 miles from court (even if outside forum state)
(1) But if added party does not have minimum contacts w/ state, then unconstitutional
(2) Usually 3rd-party or necessary party will have the requisite minimum contacts
c. Rule 4(k)(1)(C) statutory interpleader allows nationwide service of process (1335)
(1) Cause of action for interpleader most likely to be associated w/ state law
(2) But if no minimum contacts w/ forum provision unconstitutional for that situation
d. Rule 4(k)(1)(D) jurisdiction is established when authorized by a [fed] statute
e. Rule 4(k)(2) authorizes constitutional jurisdiction beyond long-arm statute
(1) ONLY in situations where personal juris would be available nowhere else in US
f. Remember 4(k) cannot create personal juris where Constitution does not permit
F. Venue (which district w/in state that has jurisdiction)
1. 28 USC 1391 could be numerous places where venue appropriate
a. 1391(a) venue for diversity action
(1) Venue where any D resides (if all Ds reside in same state)
(2) Where substantial part of events occurred or property situated
(3) District where any D is subject to personal juris (if action maybe brought in no other district)
b. 1391(b) venue for non-diversity (usually fed question)
(1) Same first 2 options as 1391(a)
(2) District where any D may be found (if action may be brought in no other district)
c. 1391(c) corporation resides in any district where it is subject to personal jurisdiction
(1) If state has multiple districts, treat district as separate state to see if D has jurisdiction there
(2) If no district corp resides in district where it has most significant contacts
d. 1391(d) aliens may be sued in any district

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(1) Personal jurisdiction must still be met

e. 1391(e) venue when D is officer of U.S.
2. Dee-K Enterprises, Inc. v. Heveafil Sdn. Bhd. (1997) p.199
* Ps sued intl corps and American Ds in E.D. Va.
a. Aliens can be sued in any district (1391(d))
b. 1391 says American Ds can be sued in any district where one may be found
(1) Use sufficient contacts analysis to determine found
G. Forum Non Conveniens
1. Generally
a. Even if court has person juris, SMJ, + satisfactory venue may refuse case (inappropriate forum)
b. Requirement that adequate alternative forum exists (tho other judicial system)
(1) Usually case moved from state to state
(2) Court may require that D agree to waive statute of limitations defense
2. Piper Aircraft v. Reyno (1981) p.204
* Plane crash in Scotland w/ Scottish decedents and air traffic control; plane made in Pennsylvania
a. Ps forum choice only overcome when private + public interest factors point to alternative forum
(1) Factors listed in footnote 6
(2) Give less deference to foreign P
b. Private interest access to sources of proof; availability + cost of compelling unwilling
witnesses; possibility of view of premises; ease of case = points toward Scotland
c. Public interest strong interest in having localized controversies decided at home;
administrative difficulties; trial of diversity case where law governs; avoidance of conflict of laws
problems; unfairness of burdening citizens in unrelated forum w/ jury duty= favors Scotland
H. Transfer of Venue transfer to court in same judicial system
1. Statutes
a. 28 USC 1404(a) for convenience of parties + witness, and in interest of justice, district court
can transfer any civil action to any other dist ct where it might have been brought
(1) Venue is proper but want to move somewhere else
b. 1406(a) venue is improper, so dismiss or transfer to proper venue (if in interests of justice)
(1) If D waives venue dont have to dismiss or transfer (1406(b))
c. 1631 when civil action filed in court w/ no jurisdiction, court shall transfer (if in interests of
justice) to any court where it could have been brought
(1) Action/appeal proceeds as if it had been filed in correct court on date filed in wrong court
(2) Venue is proper, but no personal jurisdiction
2. Differences b/t Forum non conveniens and Transfer of venue
a. Forum non conveniens
(1) Common law, available to D only, less discretion, original ct has PJ + venue
b. Transfer of venue
(1) Statutory, available to P + D, more discretion, original ct need not have PJ + venue
I. How to do Personal Jurisdiction Analysis
1. Notice (statutory Rule 4 and constitutional Mullane)
2. Jurisdiction
a. Statutory state long-arm or Rule 4(k)(1)(B-D)
b. Constitutional
(1) General (continuous + systematic contacts) or specific (fewer + discrete)
(a) Jurisdiction based on presence alone constitutes due process (Burnham)
1) Talk about split in Burnham
(b) Little business in state general jurisdiction (Washington Equipment)
(2) Minimum contacts cannot offend notions of fair play + substantial justice (Intl Shoe)
(a) Applies to all assertions of jurisdiction (Shaffer)
(b) Fairness factors (Intl Shoe) fairness
(c) D must foresee being haled into court (WWV) contacts
1) Ps unilateral act not enough

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(d) D must purposefully direct actions toward forum state (Asahi) contacts
1) Talk about stream of commerce split in Asahi
(e) Numerous contacts may overcome fairness unless gravely difficult (BK) both
(f) If internet must have intent to aim at forum audience (Young) contacts
True/False
1. On motion to dismiss on FRCP 12(b)(6) grounds, the court determines whether, even assuming that the
facts alleged are true, the complaint states a claim upon which relief can be granted.
2. On summary judgment, the NMP is entitled to all reasonable inferences that can be drawn from the
evidence he presents in opposing the motion, but he may not rely on the allegations in his complaint in
resisting summary judgment. See FRCP 56(c).

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