Civil Procedure, Fall 2013

I.

Initiation / Pleading Period

a. Rules governing initiation.
i. Rule 3. An action commences with the filing of a complaint.
ii. Rule 7. Designated Pleadings: Complaint, Answer, Answer to a counterclaim, Answer to a cross-claim, Third-party
complaint, Answer to a third-party complaint, Reply
iii. Rule 8. Rules of pleading. Claim for relief must state:
1. Grounds for jurisdiction (short and plain statement)
2. Grounds for relief (short and plain statement)
a. Notice Pleading see Sierocinski v E.I. Du Pont De Neours
b. Factual Sufficiency Test see Bell Atlantic Corp v Twombly and Ashcroft v Iqbal,
i. Legal sufficiency requirement (do facts add up to a state of claim, always there)
ii. Non-conclusory-and-probable requirementdoes the pleading make statements of nonconclusory facts that can plausibly lead to a legal principle
iii. Iqbal identifies source of higher standard of pleading in 8(a)(2) with showing language
1. Applies to counterclaims
2. Doesnt apply to answers
3. Demand for relief sought (damages)
4. Rule 8(b)Answersdefendant must admit or deny allegations in a complaint
5. Rule 8(c)Affirmative Defenses allowed in an Answer, also allows that affirmative defenses incorrectly stated
as counterclaims and vice-a-versa are treated as if they were stated correctly
a. Counterclaims and Cross-Claims can be brought either in an Answer or in a separate pleading
iv. Rule 9(b). Pleading fraud and mistake
1. Applies to answers and affirmative defenses
2. Fraud can also be an especially frivolous allegation, hence higher pleading standards.
v. Rule 11(b). Requires pleadings have evidentiary support or reasonable certainty that there is evidentiary support
1. Lawsuit nit meant to harass, delay, or needlessly increase the cost of litigation;
2. Legal contentions supported by existing law or a non-frivolous argument for extending existing law
3. Facts have evidence or (if identified) will likely have evidence come-out during Discovery
4. Denials are based on evidence, lack of information, or good faith belief evidence will come-out
5. Evidence satisfying 11(b)(3) need not be admissible in trial
vi. Rule 11(c). Provides for sanctions for frivolous ligation
1. Rule 11(c)(2). 21-day Safe Harbor, can withdraw complaint or answer that will likely violate Rule 11(b)
2. Rule 11(c)(3). Court may impose sanctions sua sponte unless the parties provide reason for violating Rule 11

vii.

viii.

ix.

x.
xi.
xii.

xiii.

xiv.

3. If you advance multiple causes of action and one of them is frivolous, you can have Rule 11 sanctions on the
frivolous cause of action while the non-frivolous one go forward
4. When have Rule 11 sanctions been waived by the other party? Before summary judgment? Have they waived
their right for sanctions if they havent brought it up prior to summary judgment?
Rule 12(a). Time to Answer.
1. 21 days unless youve waived service, in which case you have 60 days
2. Applies to answering counterclaims, crossclaims, and third-party complaints
3. 21 days to Reply to an Answer
Rule 12(a)(4) Effect of a motion.
1. If you bring a pre-answer motion, you do not have to answer unless pre-answer motion is denied
2. If it is denied you have 14 days to answer
3. If court grants motion for more definite statement, you have 14 days to respond
Rule 12(b). Allows for a motion to dismiss for
1. Lack of subject matter jurisdiction
2. Lack of personal jurisdiction
3. Lack of venue
4. Insufficient process (this is about the paperwork)
5. Insufficient service of process (this is about method of service)
6. Failure to state a claimthe burden is on the defendant to raise
7. Failure to join a party under Rule 19
Rule 12(c). Motion for judgment on the pleadings.
Rule 12(e). Motion for a more definite statement. More common because of Twombly and Iqbal
1. If granted, you have 14 days from service of new complaint to answer
Rule 12(f). Motion to Strike
1. Can be used to remove legally insufficient affirmative defense form an answer
2. If granted, you have 14 days from service of new complaint to answer
Rule 12(g). Joining Motions
1. DefensesRule 12(b)(6)can be brought-up in an Answer or in a Pretrial Motion
2. Affirmative Defensesonly allowed in an Answer
3. Negative Defensesonly allowed in an Answer
Rule 12(h). Waiver of Defenses
1. Subject Matter Jurisdiction
a. Never waived, can be brought-up at any time
b. Court can bring-up sua sponte

c. Can be raised on appeal

d. Court is obliged to bring-up sua sponte
e. Cannot collaterally attack subject matter jurisdiction
2. Failure to state a claim or failure to join a necessary party
a. Must be in first pre-answer motion if one is brought
b. Cant be in the second motion or in an answer if it is not brought in a pre-trial motion
i. If a pre-trial motion is not brought, can be brought-up anytime
ii. Must be in a pre-trial motion if there is one
iii. Otherwise can be brought at any time
3. Personal Jurisdiction, Venue, Process, and Service of Process
a. Must be brought in first response (pre-trial motion or Answer)
b. Can be added to a first response via Amendment if it is not a pre-trial motion (applies to Answers,
answers to counter-claims, replies, answers to cross-claims)
c. If not brought in first response or added by Amendment, these defenses are waived permanently
xv. Rule 12(i). Pretrial Motionallows motions in 12(b) and 12(c) to be heard before trial if so moved by a party.
1. Gets rid case without having to draft unnecessary answer; saves money and time
2. Allows defendant to delay having to answer the complaint
3. If successful there is no need to answer at all
xvi. Rule 15. Amendment.
1. Rule 15(a). Amendment as a Matter of Course (Right)
a. 21 days of serving the pleading you are amending if no responsive pleading is required (e.g., Answer)
b. 21 days after service of the responsive pleading or 21 days after service of a 12(b), (e), or (f) motion
c. If Court orders a response to an amended pleading, the time for such response is 14 days
2. Rule 15(b). Amendment by leave of the Court. The court should freely give leave when justice so requires.
a. Allowed at any time during trial except to bring-up waivable defenses
b. Can also be done with consent of the opposing party
c. Trial by Consentif a pleading is never amended to add a particular allegation or defense, but it is
litigated anyways, it is presumed that the issue was litigated by consent of the parties
d. Rule 15(c). Relation Back.
i. Cannot add a new defendant in the middle of trial if the statute of limitations has passed
ii. Weird exception to Relation Back: wrong name on complaint (e.g. defendant sued as individual
business but was really incorporated business)
1. Rightful defendant got notice within statute of limitation
iii. Abuse of Discretion review standard, not de novo review

b. Rules governing service.

i. Rule 4. Summons.
1. Rule 4(a). Contents; Amendment.
2. Rule 4(b). Issuance
3. Rule 4(c). Service
a. A summons must be served with a copy of the complaint
b. Any person who is at least 18 years old and not a party may serve a summons and complaint
i. According to Green, this rule supersedes any state law method of service
4. Rule 4(e). Serving an Individual
a. Rule 4(e)(1) State law for serving a summons
i. If relying on state law under 4(e)(1), Glannon's view is must satisfy state law on who may serve MSG's view is that 4(c)(2) is still controlling
b. Rule 4(e)(2) Any of the following:
i. In-hand service
ii. Leaving a copy at the individuals dwelling with someone of suitable age and discretion
iii. Delivering a to an agent authorized to receive service of process
5. Rule 4(h). Serving a Corporation
a. Rule 4(h)(1)(a) A state-law method of service for a corporation
b. Rule 4(h)(1)(b). By delivering the summons to an officer, general manager, or managing agent of the
company or to an agent authorized by appointment or by law to receive service of process and
6. Rule 4(k). Personal Jurisdiction Created by Service
7. Rule 4(l). Affidavit. Unless service is waived, proof of service must be made to the court.
8. Rule 4(m). 120 days after Complaint is filed with court to serve defendant unless the plaintiff can provide
extenuating circumstances (good cause)
9. Does rule 4 govern counterclaims?
a. No. It is subject to the more generous Rule 5
b. If a new party is brought in, Rule 4 must be satisfied
10. Constitutional restrictions on service
a. Amendments V and XIV: individuals cannot have property taken way without due process
i. Amendment V applying to federal government and federal courts
ii. Amendment XIV applying to state government and state courts
b. Mullane Standard:
i. Notice reasonably calculated to apprise interested parties of the pendency of the action
ii. Factors relevant in determining whether notice was reasonably calculated to apprise party:

1. What is the level/amount of interest determined? Under class action it could be very
little per person and that would mean not much expense on notice
2. How readily and cheaply can party and its address be determined?
3. Sometimes lack of sophistication (e.g., children, mentally ill, incapacitated) means that
extra efforts are needed
11. Defaults-What can you do if service was not proper and you default:
a. Option A: Motion to set aside the judgment.
b. Option B: Collateral Attack
12. Motion for Insufficient Service of Processes or Insufficient Service
a. Could file a pre-answer motion to dismiss for insufficient service of process Rule 12(b)(5)
b. Bring up insufficient service as a defense in Answer.
c. Complex Litigation
i. CounterclaimsRule 13
1. Rule 13(a). Compulsory Counterclaims
a. Arises out of the transaction or occurrence
b. Does not require adding a new necessary party over whom the court cannot acquire jurisdiction (this is
mostly about personal jurisdiction, because supplemental jurisdiction will probably cover subject
matter jurisdiction.
i. This can also be about the type of personal jurisdiction, for instance quasi in remit would be
unfair to mandate compulsory counterclaims when personal jurisdiction is based solely on quasi
in rem, this could subject the plaintiff or defendant to in personam jurisdiction when it isnt
appropriate
c. It is not the subject of another litigation in state court (Prior Action Pending)
d. You can always Amend your complaint, answer, or reply to add a compulsory counterclaim
e. Intersection of Compulsory Counterclaim with Pre-Answer Motion
i. If you have a Rule 12(b) defense you bring-up in an Answer (as opposed to a pre-answer
motion), you must state your compulsory counterclaims
ii. If the Rule 12(b) defense succeeds, the court must dismiss the counterclaim without prejudice so
the defendant can bring it against the original plaintiff in a later suit
iii. You cannot bring-up a counterclaim in a pre-answer motion
f. Compulsory counterclaims, like amendments, are covered by relation back. Statues of limitations may
even toll depending on their similarity to the original claims.
g. Claim preclusion rules of the rendering court always apply

h. What prevents plaintiff from bringing separate cause of action regarding same transaction/occurrence
after judgment:
i. Claim Preclusion or Res Judicata (common law doctrine, not federal rules)
ii. Full Faith and Credit Clause (Constitution)States duty to respect sister state judgments
iii. Full Faith and Credit StatuteCongress passed a statute requiring federal courts to respect
state court judgments unless they conflict with federal law or the Constitution
iv. Supremacy Clause (Constitution)State courts must respect judgments of federal courts
v. Prior Action Pendingwhen an action that is a compulsory counterclaim has already been
brought in state court and is pending, it cannot be brought again in federal court
2. Rule 13(b). Permissive Counterclaims
a. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory
b. Not limited to the defendant, anyone who is being sued may bring against that person any claim you
have against him
c. Intersection of Permissive Counterclaims with Personal Jurisdiction and Venue
i. There is always personal jurisdiction over the plaintiff for a compulsory counterclaim
ii. Two views about personal jurisdiction over the plaintiff for permissive counterclaims:
1. Majority View: the plaintiff cannot object to personal jurisdiction
2. Minority View: the plaintiff can object to personal jurisdiction, and every cause of action
including counterclaims must satisfy International Shoe
iii. However, if the plaintiff joins a permissive claim not related to the same transaction/occurrence
under the Joinder Rules, every claim must meet personal jurisdiction and venue over defendant
3. Intersection of Counterclaims and Removal
a. Plaintiffs can never remove, therefore, if a compulsory counterclaim is brought by a defendant against
the plaintiff that creates federal subject matter jurisdiction, the plaintiff cannot remove
i. Remember, this is the Mottley Rule
ii. MSG does not like this rulebecause the natural defendant can find a point of law to sue on
and prevent the natural plaintiff from brining an action in federal court
b. Joined parties, however, may remove, subject to 28 USC 1441(a)
4. Joinder of Parties, Joinder of Claims
a. Rule 18. Joinder of Claims. When youre bringing an action against someone in any capacity you many
join any other action, subject to personal jurisdiction and subject matter jurisdiction.
b. Two questions that will basically answer all inquiries into the joinder scenarios (does not work for 3rd
party complaints, necessary parties, or interventions)
i. Are the people involved in the cause of action already adversaries?

ii. Does the cause of action concern the same transaction/occurrence?

If the answer to both questions is yes, joinder is compulsory
If the answer to both questions is no, joinder is forbidden
If one answer is yes, and the other is no, joinder is permissive but not compulsory
Rule 13. Cross-claims Between Existing Adversaries
i. Rule 13(a) Compulsory Counterclaim or Cross-Claim. If parties are already adversaries and a
claim concerns the same transaction or occurrence, counterclaim or cross-claim are mandatory.
ii. Rule 13(b) Permissive Counterclaim or Cross-Claim. A defendant may cross-claim against
another defendant if the claim concerns the same transaction or occurrence
iii. Rule 13(h) Joinder of Parties to Counterclaims or Cross-Claims. Incorporates rules 19 and 20.
iv. Once a cross-claim is made, one or both parties may join permissive cross-claims of unrelated
transactions/occurrences under Rule 18.
v. A defendant cannot cross-claim against another defendant a permissive cross-claim unless they
cross-claim related to the same transaction or occurrence. Why? Defendants are not already
adversaries, they first have to become adversaries.
g. Rule 14. Joinder of Third-Parties by Defendants (Impleaders)
i. A defendant may implead a third party when they are liable to the defendant for part or all of
the judgment the defendant may owe to the plaintiff if they lose
1. Contributionone party contributed to the events that caused another partys loss
2. Indemnityone party owes another for all or a portion of the judgment if the
defendant loses (e.g., insurance)
ii. Once joined (or impleaded), the third-party must then assert any claims or defenses they have
against the defendant
iii. Once the third-party defendant is joined, the plaintiff may assert any claims it has against the
third-party (same transaction or occurrence)
iv. The third-party defendant may also join any claims it has against the plaintiff (same transaction
or occurrence)
v. Additional claims under Rule 18 may be added once a claim arising from the same transaction or
occurrence is added
vi. There must be personal jurisdiction over impleaded parties, and actions added under Rule 18
must satisfy subject matter jurisdiction and venue
vii. In most instances, impleading third parties is permissive rather than compulsory
h. Rule 19. Necessary Parties
i. Rule 19(a) Required Joinder of Parties if Feasible
c.
d.
e.
f.

1. A person who is subject personal jurisdiction and whose joinder will not deprive the
court of subject matter jurisdiction must be joined if:
a. In that persons absence, the court cannot accord relief among the parties
b. That person claims an interest related to the subject of the matter and is so
situated that disposing of the action in the persons absence may
i. Impair the persons ability to protect the interest
ii. Leave an existing party subject to a substantial risk of incurring double,
multiple, or inconsistent obligations
ii. Rule 19(b). When Joinder is Not Feasible.
1. If a person who is required to be joined cannot be joined, the court must determine
whether the action should proceed among the existing parties or should be dismissed.
The factors for the court to consider include:
a. The extent to which the judgment rendered in the persons absence might
prejudice that person or existing parties
i. Would the plaintiff be subject to competing obligations
ii. In rem Actionsonly one person can have title to property, so all
claimants over the property are necessary parties that must be made
aware of the dependency of the action under a Mullane standard
b. The extent to which any prejudice could be lessened or avoided by:
i. Protective provisions in the judgment
ii. Shaping the reliefe.g. changing from injunctive relief (build the dam)
to monetary damages (pay for all losses caused by the flooding)
iii. Other measures
c. Whether a judgment rendered in the persons absence would be adequate
e.g., bankruptcy, would a necessary party get the relief they are entitled to?
d. Whether the plaintiff would have an adequate remedy if the action were
dismissed for non-joindere.g, can the action proceed in state court if subject
matter jurisdiction over the necessary party is a problem?
2. When faced with the inability to join a necessary party, courts face the decision of either
continuing the litigation without the party, reshaping the relief, or dismissing the action
iii. Rule 24. Intervention.
1. . On timely motion, the court must permit anyone to intervene who:
a. Is given an unconditional right to intervene by a federal statute

b. Claims an interest relating to the property or transaction and disposing of the

action may impede the intervening party from protecting its interest, unless
existing parties adequately represent the interest
2. Usually, parties who might otherwise be necessary parties are given a right to intervene
3. Permissive interventioncourts may on discretion allow a party to intervene who is not
otherwise a necessary party, usually when there is a common question of law that both
parties want resolved (often civil rights litigation, think Brown v. Board of Education)
i. Rule 20. Multiple Plaintiffs and Defendants.
i. Rule 20 allows the plaintiff to join with multiple plaintiffs or to join actions against multiple
defendants jointly, severally, or in the alternative
ii. Definition of claims jointly, severally, or in the alternative
1. In the Alternative (defendant is liable to one plaintiff or the other plaintiff, or plaintiff
was harmed by one defendant or the other defendant, but not both)
2. Jointly (two plaintiffs can sue one defendant for the full value of the loss, one plaintiff
can sue two defendants for the full value of the loss)
3. Severally (each defendant is liable only for the loss they caused)
4. Jointly & Severally (sue one defendant for the totality of the loss and that defendant
cross-claims against another defendant or impleads a third-party)
j. Whenever parties are brought-in, then compulsory counterclaims and cross-claims must be brought at
that time, and permissive counterclaims and cross-claims may be added subject to jurisdiction
k. Intersection of complex litigation with jurisdiction and venue
i. Causes of action joined under 18(a) by plaintiffs against defendants:
1. Each must satisfy personal jurisdiction
2. Each must satisfy venue statute
ii. Joinder of defendants under Rule 20:
1. There must be personal jurisdiction over each defendant
2. The venue statute must be satisfied for all defendants
iii. Compulsory counterclaims by defendants against plaintiffs:
1. Personal jurisdiction is considered waived by the plaintiff by suing in the forum
2. Venue statute need not be satisfied
iv. Permissive counterclaims by defendants against plaintiffs:
1. Majority view is that personal jurisdiction is considered waived
2. Majority view is that venue statute need not be satisfied
v. Cross-claims between co-defendants and co-plaintiffs:

1. No personal jurisdiction argument is needed

2. No venue argument is needed
vi. Third-party complaints brought by defendants:
1. There must be personal jurisdiction over the third party defendant
2. The venue statute need not be satisfied
vii. There must always be subject matter jurisdiction
1. An added claim (Rule 18, 13) or added party (Rule 14, 19, 20, 21, 24) can have its own
source of subject matter jurisdiction
a. Federal question
b. Diversity or alienage
c. Federal SMJ by statue (Class Action Fairness Act, interpleader)
2. If there isnt independent SMJ, there may be supplemental jurisdiction
d. Jurisdiction
i. Federal Subject Matter Jurisdiction
1. Federal Question or Arising Under Jurisdiction
a. Constitutional Reach: Article III, Section 2; This is read to be extremely broad
b. Congressional Statute Granting Original Jurisdiction: 28 U.S.C. 1331
i. Supreme Court has read this to apply only to lawsuits where the plaintiffs cause of action has
to do with a question of federal law
ii. Mottley rule: Look to the law the plaintiff needs to mention in the complaint to get the
requested relief.
iii. 28 USC 1257. Allows Supreme Court to take cases that address federal issues once the case
has reached the highest state court.
iv. Subject Matter Jurisdiction cannot be waived by the parties it is there to protect the states
2. Diversity and Alienage Jurisdiction
a. Constitutional Reach of Federal Diversity and Alienage Jurisdiction: Article III, Section 2
i. Minimal Diversity
ii. Minimal Alienageis any one plaintiff or defendant a citizen of a state and any one plaintiff or
defendant a citizen of a foreign state?
1. Two foreign citizens, even if they are both permanent residents and have green cards,
do not constitute alienage jurisdiction under the constitution.
b. Congressional Statute Granting Original Jurisdiction 28 USC 1332(a)
i. This requires Compete Diversity
ii. Likewise, you need Complete Alienage diversity

1. Elizabeth Taylor example: has to be brought in state court because Elizabeth Taylor is
not a citizen of a state even though she is a U.S. National
2. Except where both parties (plaintiff and defendant) are foreign nationals domiciled in
the U.S., 28 USC 1332(a) treats foreign nationals as citizens of the state where they are
domiciled. Dual citizenship is ignored.
iii. 28 USC 1332(e) The word states is to include the Territories, the District of Columbia, and
the Commonwealth of Puerto Rico.
iv. The amount in controversy must exceed $75,000 to get into Federal Court under diversity.
1. Exception: 1332B: The Class Action Fairness Act. Allows for minimal diversity where
the amount in controversy is over $5,000,000
v. Family law claims never have federal subject matter jurisdiction, notwithstanding diversity.
vi. What is Domicile for the purposes of diversity jurisdiction? Baker v. Keck
1. Restatement of the Conflict of Laws, 15
2. Restatement of Conflicts Definition of Domicile:
a. Person must establish a dwelling-place with the intention of making it his home.
b. Physical presence at a dwelling-place and the intention to make it a home must
concur; if they do so, even for a moment, change of domicile takes place.
c. You have one, and only one, domicile
c. Domicile of Corporations 28 U.S.C. 1332(c): For the purposes of 1332 and 1441
i. State (or foreign state) of incorporation and state (or foreign state) of principal place of business
ii. Only a corporations principle place of business determines its citizenship: The Nerve-Center
Test (See Hertz Corp. v. Friend)
1. Muscle Test is ignored
d. Devices to Create Diversity/Alienage
i. Assignment: Kramer v. Caribbean Mills (U.S. 1969)
ii. Assignment to create diversity is not, in and of itself, impermissible. It is solely impermissible in
cases such as Kramer, in which the parties are attempting to perpetrate a sham.
e. Devices to Defeat Diversity/Alienage
i. Diversity-destroying plaintiff or defendant
ii. Fraudulent Joinder (Rose v. Giamatti)
ii. Removal
1. 28 USC 1441(a) provides the right of removal where the statutory minimum amount in controversy is met
($75,000, for diversity cases only)
a. 1441(b)(1) if there are multiple defendants, all parties must agree to the removal

2.
3.
4.
5.
6.
7.

8.
9.

b. 1441(b)(2) if the grounds for removal is diversity, you cannot remove when you are a citizen of the
state wherein the action was originally brought
c. 1446 (c)(2) the amount in controversy is always the amount in the initial pleading except where
i. The defendant can specify in the removal pleadings a new amount in controversy that it is
higher than what the plaintiff has stated if state law allows the plaintiff to recover more than
what is alleged in the complaint
1. Must be able to prove by a preponderance of the evidence
ii. St. Paul Mercury Rulethe amount in controversy is always treated as the amount that the
plaintiff is claiming, unless as a legal certainty (and not a factual certainty), there is no way
that the plaintiff can recover the damages being claimed
a. aDefendant can remand to state court if it fails the St. Paul Mercury Test
d. Plaintiffs cannot remove a counterclaim, see Shamrock Oil & Gas Co. v Sheets
e. Joined Parties, Aggregation, and the Amount in Controversy:
i. Every party joined to suit must meet the statutory minimum of their own accord; no aggregation
1. Exception: plaintiff can aggregate multiple claims against the same defendant
2. A plaintiff can join a party whose claim does not meet the statutory minimum, and this
joinder will have supplemental jurisdiction (Allappatah)
ii. Common and Undivided Right
Thirty days after receiving a summons and complaint to remove to Federal Court
Additional parties joined may remove within thirty days after they are joined
All defendants must agree to removal
There is a one-year ultimate proviso to removal
FELA - Federal Employment Liability Act defendant cannot remove if originally brought in state court
Removal is made to the Federal District Court that covers the geographic area of the state court that originally
had jurisdiction
a. This overrides any other considerations about venue
b. However, you can remove and then move for a dismissal on personal jurisdiction grounds if the original
venue did not have personal jurisdiction (not the removed venue)
Generally, removal does not waive affirmative defenses like lack of service or failure to statue a claim
a. In fact, you can remove a state court claim and force it to conform to Twombly
Devices to defeat removal:
a. Join a diversity destroying defendant (same domicile as one of the plaintiffs)
b. Join a defendant that doesnt meet the statutory minimum for jurisdiction under diversity
c. Join a defendant who is a domiciliary of the state of litigation

iii. Personal Jurisdiction in State Courts

1. The Original Framework: Pennoyer v. Neff
a. In personam: Defendant in forum at initiation of suit (not at time of event being adjudicated)
i. Tagging: Service of the summons and complaint by serving them within bounds of the state
1. Constitutionally, tricks to create a defendants presence in the state for the purpose of
in personam jurisdiction are permissible, but some states have outlawed this by statute
2. Forum non convenes, a common-law notion, sometimes codified by statute (doorclosing statutes) that actually prevent a state court from taking an action
ii. Defendant is a citizen (domiciliary) of the state
b. In rem: source of PJ is presence of property belonging to D at initiation of suit
i. Concerns ownership of property and is binding upon all possible claimants (quiet title action)
ii. Ability of the court to issue judgment extends only as far as the value of the property
1. Limited Appearance: allows a defendant to appear and litigate only up to the value of in
rem or quasi in rem property without that appearance creating personal jurisdiction
c. Quasi in rem: two types:
i. Source is property in state at initiation of suit, but suit does not concern ownership of property
1. Ability of the court to issue judgment extends only as far as the value of the property
that exists in the state
2. Attachmentwhen the property is attached at the beginning of a suit
ii. Suit concerns ownership of property, but is only binding on certain named parties
d. Jurisdiction Over Corporations Under Pennoyer
i. States always had jurisdiction over a corporation that was present in the state in the same
sense that an individual was
ii. This didnt allow for jurisdiction to be retroactiveif a corporation had no current presence they
couldnt be held accountable for past actions
iii. Agents for service of processlegal fictions created that states could tag to get jurisdiction
1. They would satisfy Mullane by mailing service to the corporations headquarters
2. Implied appointment states sometimes would pass statutes saying that doing business
was itself the implied appointment of an agent for service of process in the state
3. There were limits to this legal fiction argument
a. What if the corporation was only engaged in interstate commerce?
b. According to the dormant commerce clause, by giving Congress the power to
regulate interstate commerce one theory of Constitutional Law was that this
power was denied to the states

2. The New Framework: International Shoe Co. v. State of Washington

a. Categories of Personal Jurisdiction Offered by Shoe:
i. A single isolated activity giving rise to a cause of action (Specific Jurisdiction)
ii. Continuous and systematic activities unrelated to a cause of action but nevertheless of such a
substantial nature as to allow a suit to be brought (General Jurisdiction)
iii. Continuous and systematic activities giving rise to the cause of action (M.S.G. calls this
Category Jurisdiction where there is a sliding scale between the relatedness of the cause of
action and the level of systematic activities)
1. In some cases, the courts have ruled that jurisdiction of a defendant exists, even if the
cause of action did not arise within that state (no specific jurisdiction), and there are not
sufficient contacts for general jurisdiction.
iv. A single isolated activity unrelated to the cause of action (No Personal Jurisdiction)
b. International Shoe is all about what the defendant willingly did to create jurisdiction over itselfthey
can always withdraw from a state to prevent personal jurisdiction over itself
c. General Jurisdiction (in Personam) over Corporations
i. Perkins v. Benguet Consolidated Mining Co., Defendant was Philippine mining company and the
President had moved to Ohio during WWII. Plaintiff sues for her dividends as a stockholder and
for damages for not issuing stock. Ohio state court can decide if it wants jurisdiction or not.
ii. Goodyear Dunlop Tires Operations, S. A. v. Brown
1. Not specific jurisdiction because theres nothing the defendants (European subsidiaries)
did to reach out to N.C. in a way that is tied to the cause of action
2. Stream of Commerce: small percentage of tires distributed in the state through
intermediaries; Plaintiffs said that tires made their way through intermediaries to N.C.
3. Supreme Court: corporation fairly regarded as at home
4. For individual, paradigm for exercise of general jurisdiction is the individuals domicile
iii. Helicopteros Nacionales de Colombia, S.A. v. Hall, Helicopter accident in Peru, trying to get
personal jurisdiction in a Texas court over a Colombian corporation. Helicopter pilot trained in
Texas, helicopter purchased in Texas.
1. No specific jurisdiction because cause of action arose in Peru.
2. Connections to Texas too slight to justify general jurisdiction.
iv. Ex Parte Newco Mfg
1. This is an example of category jurisdiction. Cause of action that doesnt arise from
anything that comes from within the forum state. Not general jurisdiction, as it is not
at home in the forum state.

2. Difference between Goodyear & Newco is intent for product to reach the region.
3. The particular type of Goodyear Turkey tire caused the accident did not reach NC; the
Alabama thimble clamps are the same type as the clamp that caused the MD accident
v. Pedelahore v. Astropark, Inc., a Louisiana plaintiff is injured in Astropark in Houston, Tex.
Astropark is a Delaware Corp., with its principle place of business in Texas.
1. Category jurisdiction (all cases of Louisianans going to Astropark and getting hurt)
d. Specific Jurisdiction (in personam) over Corporations
i. McGee v. Intl Life Ins. Co., Specific Jurisdiction, the McGee Factors
ii. Products Liabilityoften about who initiated the relationship:
1. Thompson v. Chrysler Motors; Defendant chose (affirmative action) to ship the cylinder
2. Chung v. NANA Dev. Corp.; Plaintiff asked defendant to ship product, defendant did not
normally do business in Virginia
3. Bensusan Rest. Corp v. King
a. Passive websites usually insufficient to create personal jurisdiction
b. Active websites usually sufficient to create personal jurisdiction
i. Many interactive sites have choice of forum clauses
iii. World-Wide Volkswagen v. Woodson
1. Plaintiff brought the car into Oklahoma, not stream of commerce
2. Oklahoma's long-arm statutelong-arm statutes allow a state to reach out to
defendants outside of the state and assert personal jurisdiction over them
a. Enumerated Long-Arm Statute- only confer jurisdiction over specific actions
where Due Process allows them to, up to the limits of Due Process conferred by
the Supreme Court
b. General Long-Arm Statute- confer jurisdiction over any action up to the
Constitutional limits of Due Process
3. Seaway and World-Wide had no advertising in Oklahoma and no attempt to reach out to
that market, the only argument to their personal jurisdiction is that it was foreseeable
that a car sold by Seaway would go through Oklahoma
4. Supreme Court rules that if a defendant can foresee their actions would submit them to
personal jurisdiction in a state, there would be personal jurisdiction
iv. Ohio v. Wyandotte Chemicals
1. Natural processes brought the pollutants into the forum state
2. It has to be the defendants actions that put something into the stream of commerce

v. Asahi
1. Even if there is power, the McGee factors arent satisfied
2. What about any argument about Californias power to hear the case, irrespective of the
McGhee factors?
a. OConnor: Need some extra act showing intent to serve the CA market
b. Brennan: says California had power because Asahi was aware of the sales in
California, and received benefits as a result of doing business in California
c. Stevens: By being a part of the process of the shipping your products to the
forum state and you can foresee this as a regular matter, then you have
sufficiently reached out to the forum state
vi. J. McIntyre Machinery, Ltd., v. Nicastro
1. No more than four machines, ever reached New Jersey. The purchase of the machine
was at the trade show in Las Vegas. Distributor was incorporated in Ohio.
2. We have three opinions result from this case
a. Kennedy: Must have directed intent toward the state of New Jersey, outside of
the simple fact that you believe your products may end up in NJ.
b. Breyer Concurrence: Where there is a foreseeable regular flow of products into
forum state, minimum contacts have been established. This is the narrowest
opinion so likely the law created by case
c. Ginsburg Dissent: Ginsburg says that by targeting the US, instead of any specific
state, J. McIntyre should be submitted to P.J. in any state their products are
sold. Adjudicating the case in New Jersey doesnt diminish the sovereignty of
any other state (but what about Ohio?). Specific to international defendants.
vii. Schafer v. Heitner (1977)is quasi in rem jurisdiction still valid?
1. The source is property (shares) considered to be located in Delaware
a. Delaware does not allow limited appearances for quasi in rem actions
2. Court holds that this form of quasi in rem action is no longer permissible
3. In the case of real property, quasi in rem jurisdiction is still acceptable
viii. Burnham v. Superior CourtTagging of service of process still valid
3. Recap: Five Theories of Personal Jurisdiction
a. Pennoyer v Neffjealous sovereigns
b. International Shoe v Washingtonall about what defendants did to reach out to the forum state
c. McGhee v Intl Life Insurancefactors making the forum state convenient for litigation
d. World Wide Volkswagen v Woodsonforeseeability of being submitted to personal jurisdiction

e. Scalia in Burnhamattempts to reconcile all theories of personal jurisdiction

i. If it was good under the time of 14th Amendment (e.g., Pennoyer) and it is still generally
accepted by the states, it is still valid today
ii. If it is okay under International Shoe and subsequent decisions it is okay
4. Challenging Personal Jurisdiction
a. Show up and object via Special Appearance
b. Motion to set aside the judgment
c. Collateral Attack
5. Consent to personal jurisdiction
a. You can always consent to personal jurisdiction over you either by
i. Appearing in the forum state and defending on the merits
ii. Waiving the defense of personal jurisdiction by not making a motion to challenge it
iii. Waiving the defense by consenting to a choice of law by contract
b. Personal jurisdiction is a defense and the court cannot raise it sua sponte
c. If you cant get personal jurisdiction over all defendants and some of the joined defendants dont
consent to personal jurisdiction then you have to have multiple lawsuits
6. Full Faith and Credit
a. U.S. Constitution (Art IV, 1) forces states to honor valid judgments from other states
b. 28 U.S.C. 1738 Congress has the right to deny full faith and credit of state judgments in federal court
but has chosen to allow it via statute
c. Supremacy Clause: (Art IV, 2) Federal law is supreme over state law and therefore federal law
concerning the preclusive effect of the judgment is supreme over state law in state court
iv. Personal Jurisdiction in Federal Court
1. Constitutional BasisU.S. Constitutional Amendment V
a. All Americans have sufficient contact with the U.S. for Personal Jurisdiction in federal court
b. Test foreign defendants in regard to the U.S. as done with foreign defendants in regard to states
2. Federal Statutory BasisRules of Civil Procedure
a. Rule 4(k)(1)(a). A federal district court has PJ when a state court of general jurisdiction would have PJ
b. Rule 4(k)(2). For an action brought under federal law where no state has personal jurisdiction and it is
constitutional for the U.S. to exercise P.J., then any federal district court can exercise P.J.
v. Venue
1. No constitutional underpinning
2. U.S. 1391(b)Venue for Individuals

a. 1391(b)(1): Venue from Domicile. If all defendants reside in same state; action can be brought in any
district in that state where a defendant is a resident
b. 1391(b)(2): Transactional Venue. District where a substantial part of the transaction giving rise to the
cause of action took place, or where property that is the subject of the suit is situated
c. 1391(c)(3): Fallback Provision. If the defendant lives abroad, ignore them for venue purposes (we
arent worried about the venue being convenient in that case).
d. If one defendant is an alien and the rest are U.S. citizens, ignore the alien
3. 1391(c)Venue of Corporations and Unincorporated Associations
a. Corporations reside in any district where theyd be subject to Personal Jurisdiction (remember for a
corporation, its not just domicile and tagging, like an individual, its specific jurisdiction, general
jurisdiction, and category jurisdiction created by International Shoe).
b. 1391(d): In states with multiple districts: treat each district as if it were a state, do an International
Shoe analysis. If the corporation would be subject to P.J. in that district, then there is venue
i. Ignore long-arm statutes
ii. There may be P.J. without venue or venue without P.J.
iii. What if there is P.J. over a corporate defendant in a state, but not in any of the districts?
1. The corporation was incorporated in a state, but is not doing any business in the state;
2. In this case, consider the corporate defendant to reside in the district in the state with
which it has the most significant contacts
iv. Corporate residence is inclusive; there can be venue in multiple districts for the same
corporation based on residence. For an individual, they only have one venue based on domicile
vi. Supplemental Jurisdiction
1. Constitutional Basis
a. US Constitution Art. III cases and controversies does not mean causes of action, it means events
with a common core of operative fact
b. Therefore, state cause of action that arise out of the same common core of operative fact as an action
with federal SMJ can go to federal court under supplemental jurisdiction
2. Pendent Jurisdiction: Applies to a plaintiff who brings action that has own SMJ & joins and another action with
common core of operative fact
3. Ancillary Jurisdiction
a. Shares a common core of operative fact with the plaintiffs claim but brought by someone else (e.g.
compulsory counterclaim)
b. Joined cause of action, that asserts legal rights that were activated by the cause of action that has an
independent source of federal SMJ

i. Impleaders, Contribution Actions

ii. Supplementary proceedings to effectuate judgment
iii. 28 USC 1963 allows these actions to be transferred to a different federal court district wherein
defendants or third-party defendants have property available to execute the judgment
4. Basically, compulsory counterclaims or cross-claims will almost always have supplemental jurisdiction, whereas
permissive counterclaims or cross-claims will not on their own, neither will actions joined under Rule 18
a. BUT, a joined action or permissive counterclaim or cross-claim may have its own source of independent
subject matter jurisdiction (diversity, federal question)
5. 28 U.S.C. 1367. Supplemental Jurisdiction Clarification Act.
a. Sect. A. Constitutional Inquiry. Amount in controversy does not matter if it is a compulsory
counterclaim or cross-claim
b. Sect B. Diversity Jurisdiction. If source of SMJ is Diversity, no supplemental jurisdiction over
i. Claims by plaintiffs persons made parties under Rule 14, 19, 20, or 24
1. Note disagreement about what happens when defendants become third-party plaintiffs
and plaintiffs become third-party defendants
2. Purpose of supplemental jurisdiction (in part) is to prevent manipulation of litigation by
original plaintiffs, so when we interpret this rule its mostly about the original plaintiff
ii. Claims by persons proposed to be joined as plaintiffs under Rule 19 or seeking to intervene as
plaintiffs under Rule 24
iii. The statute left-out Rule 20 from the second section
c. Sect. C. Optional to Exercise. The district court may decline to exercise supplemental jurisdiction and
remand the state court issues back to state court if
i. The claim raises a novel or complex issue of State law
ii. The state law claim substantially predominates over the claim or claims which the district court
has original jurisdiction
iii. The district court has dismissed all claims over which it has original jurisdiction
iv. There are other compelling reasons for declining jurisdiction
d. Sect D. Statutes of Limitations. Protects plaintiff from statute of limitation if an action in federal court
that had supplemental jurisdiction was dismissed on 1367(c) grounds
i. Statute of limitations is frozen while a suit is in federal court, and remains so for 30 days once
the suit is dismissed from federal court, so the individuals involved have time to bring it in state
court if they so choose
6. Allapattah v. Exxon-Mobile Corp.
a. Actually two cases which raised issues with 1332(b) and the missing reference to Rule 20

II.

b. Amount in Controversy Not Met. Congress forgot Rule 20 in the supplemental jurisdiction statute, so
the Supreme Court concluded that supplemental jurisdiction exists
c. Diversity-Destroying Co-Plaintiff. When two plaintiffs sue the same defendant, they do so under Rule
20, but supplemental jurisdiction doesnt exist because this would totally violate complete diversity
7. 28 U.S.C. 1441(c) Removal and Supplemental Jurisdiction
a. Case includes a federal question action and a state law that is not covered by supplemental jurisdiction
b. Federal court can sever the state law action and remand to state court
Disclosure / Discovery
a. Distinction between disclosure and discovery:
i. Disclosure: must give to opposing party without being asked; Other side may move for sanctions if fail to do so
ii. Discovery: must give over evidence if asked; If other side does not abide by discovery request, bring motion to compel
b. Three Types of Disclosure:
i. Beginning of discovery period: the party just turns over materials without being asked
1. Rule 26(a)(1)(A)(i): only have to turn over discoverable material that supports your claims or defenses unless it
is for impeachment of other sides evidence
2. The bad evidence you have against your own positions, or impeachment evidence against other sides
witnesses, you dont have to disclose, but it is discoverable
3. Continuing obligationif new evidence comes-out during discovery that is favorable to your positions, claims, or
defenses, you must disclose it to the other side
ii. Pretrial Disclosure (30 days before trial)
1. Must disclose what will be presented at trial
2. If party presents evidence at trial, it must be in the disclosure
3. We dont want surprises because it doesnt give the other side its due process right to challenge the evidence
4. If this is true, why make an exception for impeachment?
a. If lying witness was given the impeachment evidence in advance, hed just accommodate his testimony
to account for the impeachment evidence; whereas if its a surprise, the unreliable witness will be
caught in the lie in front of the jury. We want to prevent surprises, but we also want to prevent lies.
b. Only bad thing about impeachment not being subject to disclosure: cant impeach the impeachment
iii. Expert witness disclosure: so that the other side can research the witness credibility
c. Discovery
i. Rule 26(b)(1): Scope of Discovery
1. Non-privileged matter that is relevant to any partys claim or defense
2. Covers material that is inadmissible at trial if reasonably calculated to lead to admissible evidence

ii. Rule 26(b)(2)(c): Spells out limits on discovery that take into account the burdens and benefits of discoveryboth
parties burdened with the costs of their own discovery
1. The discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less expensive
2. The party seeking discovery has had ample opportunity to obtain the information by discovery in the action
3. The burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case,
the amount in controversy, the parties resources, the importance of the issues at stake in the action, and the
importance of the discovery in resolving the issues.
iii. Tools and Methods of Discovery
1. Rule 36. Request for Admissions.
a. If based on new evidence, a party would probably have admitted something in their Answer or Reply,
rather than amending the pleading, the counterparty can use a Rule 36 Request for Admission
b. Has the same effect on discovery and trial as an admission in a pleading
c. Someone who is not a party cannot make a request for an admission
d. A party can make the request for an admission from another party, even though that other party is not
an adversary (e.g. a plaintiff requesting an admission of a co-plaintiff)
2. Document Requests. Rule 34.
a. Need to be reasonably narrow
b. Other side can offer objections
i. Outside scope of discovery
ii. Irrelevant or prejudicial
iii. Privileged
c. Can only get documents from non-parties in a subpoena duces tecum
d. Rule 45. Subpoena.
i. Subpoenas are also used to compel non-parties to appear at trial or at deposition
ii. You do not ever need to subpoena a party; disclosure and discovery rules compel them to act
when information is not privileged
iii. Failure to answer a subpoena or submit to deposition can be treated as contempt of court
3. Interrogatories. Rule 33.
4. Deposition. Rules 27-32.
a. Depositions are not always necessary
i. There are friendly witnesses or people who are not on either side; you can get information from
them just by asking
b. Deposition will replicate what trial will look like

d. Privileges
i. Privilege against self-incrimination (US Const. Amendment V)
1. You can refuse to testify on the grounds that it will tend to incriminate you
2. Primarily arises in criminal cases, but it can arise in civil cases
a. E.g., wrongful death; what I testify to could incriminate me for murder
b. Witnesses could refuse to testify in a civil case to protect themselves from incrimination
3. There is no privilege against self in-liabilizationpeople cant refuse to take the stand because they fear
having to pay damages
ii. Attorney-Client Privilege (68 Restatement (Third) of The Law Governing Lawyers)
1. The attorney-client privilege may be invoked with respect to:
a. A communication
b. Made between privileged persons (to include parties, translators, experts, necessary to the
communication process)
c. In confidence
d. For the purpose of obtaining or providing legal assistance for the client
2. Under the theoretical control of client, but may be waived inadvertently if either the client or lawyer brings-up
privileged evidence at any point during trial or discovery
3. Applies to communications not to underlying facts (to the extent facts are protected, this is the privilege against
self-incrimination, which has little application in civil proceedings)
4. An evidentiary privilege: prevents lawyers or privileged persons from taking the stand, protects legal advice
made in cofidence
5. Distinguished from the duty of confidentiality: Not evidentiary, duty of lawyer not to blab about certain things,
cannot be asserted if material is requested during the process of litigation and ordered by a judge
6. If you know testimony at court by your client is false, you would be required to inform the court. You have a
duty not to offer information that you know to be false. You must then withdraw from representation.
iii. Work-Product Privilege
1. Created rather late, Hickman v. Taylor (1947); It was subsequently codified under federal rules: Rule 26(b)(3)
2. What does it protect? Documents and tangible things prepared in anticipation of litigation or trial by or for
another party or by or for its representative
a. But unsolicited work-product from non-parties may be covered under the common law work-product
privilege created by Hickman
3. A party or its representative, not necessarily a lawyer, can create work product.
4. Easier to overcome (unlike attorney/client privilege): Rule 26(b)(3)(A):
a. A party shows substantial need

b. And cannot without undue hardship get their substantial equivalent through other means.
5. Opinion work product: Rule 26(b)(3)(B): Protection from disclosure of mental impressions, opinions,
conclusions. Cannot be overcome at all, generally.
6. Fact work product Rule 26(b)(3): Document or tangible thing created by agent, where it is a collection of facts
relevant to the case, including witness statements. Facts in the work product can usually be discovered
7. Arguments for protecting pure fact work product:
a. Free rider argument: opposing counsel will ride on counsels coat tails, will save time and money and rely
on the other sides fact finding.
b. Opposition would use communications to discredit the witness
i. Opposition could compare trial testimony of witness to work product testimony of witness
ii. Opposing counsel to impeach friendly witness constantly and repetitively; prevents harassment
8. The existence of work product is not privileged; if the opposition asks if youve created work product, you have
to tell them that you have, but dont need to allege specifically what or when
9. Work product privilege is fairly easy to overcome under certain circumstances
a. What if a witness dies subsequent to an event? An interview conducted immediately after the event,
when details were most fresh in the mind of witness, can probably be obtained
10. Like with other privileges, the work-product privilege cannot be used to hide lies
11. When does work-product privilege begin: In anticipation of litigation
a. Large companies, insurance companies, cannot argue that they are always anticipating litigation; dont
want to allow company to allow any document to qualify as work product.
b. There has to be a specific anticipation of litigation, maybe not a specific plaintiff, but in general there
has to be an imminent fear of litigation
12. What about unsolicited statements or letters from friendly witnesses?
a. Could be work-product, but only if the witness created the statement in anticipation of litigation
b. Might be discoverable on other groundssay if that witness dies or goes into a coma
c. Deposed persons can always get copies of their own depositions
13. Impeachment evidence and work-product
a. If impeachment evidence is not work product, you can get it. It is part of the scope of discovery.
b. If it is work product, can overcome work product privilege and request that information, but only if you
can show it would be very good evidence to impeach their witness
i. Opposition will depose the witness, then you will be given the impeachment evidence.
ii. Used to get a statement from witness that has not yet accommodated impeachment evidence
iii. If your witness changes this testimony on the stand to accommodate the impeachment
evidence, the other side will offer the deposition itself as impeachment

iv. Interesting tension: you want surprises but impeachment evidence might be faulty. This method
allows you to get impeachment evidence and allows them to catch your friendly witness in a lie
iv. Waiver of Privileges
1. Any privilege can be waived by failing to invoke it
2. Can waive privileges by putting privileged material into issue
3. Who can waive the privilege? Two questions:
a. The first is who has the right to control the privilege the answer is the client does
i. If the lawyer waives the privilege against the clients will the lawyer can be disciplined or sued
for malpractice
ii. In some instances, it will be in the interest of the client to reveal the information. Therefore,
lawyer does it on behalf of the client
b. The second question is whether a lawyers decision about waiving the privilege can bind a client, even if
it is against the clients will. The answer is yes.
i. Assume the client tells the lawyer not to reveal the communication to the other side but the
lawyer does so anyway. The lawyers decision will bind the client, in the sense that the other
side will now have the right to use the communication
ii. But the lawyer will be liable to the client for malpractice and could be disciplined
e. Expert Witnesses
i. Disclosure is required for testimony of any expert witness testifying at trial
1. Rule 26(a)(2), expert testimony disclosure requires that opposing counsel receives a number of things, including
data or other information considered by the witness in forming their opinion.
a. Jury needs information to determine how expert witness came to his decision, even where he
considered documents that would otherwise qualify as work product.
b. Opposition must receive information about the facts that the expert used in arriving at his opinion, not
the communication itself.
2. Rule 26(b)(4)(b), do not have to disclose drafts of expert witness reports
3. Rules 26(b)(3)(a) and (b) protect communications between the partys attorney and expert witnesses and a
witness required to provide a report under 26(a)(b)(2)
ii. Disclosure is normally not required for non-testifying expert witnesses
1. This can sometimes be overcome if there are no other experts in the field
2. This can also be overcome when the expert is also a regularly-engaged employee of the defendant, in which
case the work-product privilege does not apply (e.g., engineers working at an oil rig may be used as witnesses,
testifying experts, or non-testifying experts, but work product privilege will probably be overcome)
f. Sanctions

i. Rule 26(g). Very much like Rule 11, but Rule 11 doesnt apply to disclosure/discovery.
1. Every disclosure and discovery request and response is certified to be true to the best of the attorneys
knowledge, information and belief.
2. Also requires that objection is warranted by existing law or a non-frivolous argument
3. This prevents people from acting frivolous during disclosure/discovery.

III.

ii. Rule 37. Motion to Compel.

1. If opposition refuses to hand over discoverable evidence, first you address the problem with them directly
2. Then you make a motion to compel discovery with the court, forcing them to respond
3. If court grants the motion and they still will not turn over the materials, a Rule 37 sanction will apply.
a. If they fail to provide the required information, issues in dispute may be determined against them
4. Disclosure: if you fail to disclose the necessary information, you are immediately subject to Rule 37 sanctions
Trial, Judgment, and Res Judicata
a. Terminating Litigation Prior to Trial
i. Rule 12(c). Motion for Judgment on the Pleadings.
1. Rule 12(b)(6), failure to state a claim upon which relief can be granted
2. If the defendant introduces a negative defense (denies a factual allegation), motion for judgment on the
pleadings is impossible
3. If the defendant introduces as his only defense an affirmative defense, but fails to allege sufficient facts to
establish the affirmative defense, or the affirmative defense is unavailable, Rule 12(c) applies
4. Available at any time prior to trial
ii. Rule 56. Summary Judgment.
1. Prior to trial; no reasonable jury could find for non-movant based upon the evidence as it exists
2. Burden of Pleading.
a. It is the plaintiffs obligation to allege facts that add-up to a cause of action
b. It is the defendants obligation to allege facts that add-up to an affirmative defense
3. Burden of Production.
a. Party that has the burden of pleading also has the burden of producing evidence that could conceivably
convince a reasonable jury
b. If the plaintiff fails to meet the burden of production as regards every element of a cause of action,
summary judgment for the defendant is appropriate
c. If the plaintiff meets the burden of production for every element of cause of action, and the defendant
fails to meet burden of production refuting those elements, summary judgment for the plaintiff is
appropriate, unless they meet the burden of production for affirmative defenses

i. Summary judgment for plaintiffs is very rareplaintiffs have to prove every element, whereas
defendants need only produce evidence to refute one element to avoid summary judgment
4. Burden of Persuasion.
a. Preponderance of the Evidenceif both parties have met the burden of production, then both parties
have the obligation to persuade the jury that more of the evidence supports their case
b. Unlike the burden of persuasion for criminal trials (beyond a reasonable doubt), the burden of
persuasion in civil trials is really more likely than not
5. Rule 56(c). Materials used to determine whether non-movant can meet burden of production
a. Affidavit signed saying how witness would testify at trial (the affidavit would itself be heresy if presented
at trial but the FRCP grant an exception for summary judgment)
b. Depositions
c. Documentary evidence
6. Summary judgment is available for up to 30 days after the close of discovery
7. Partial Summary Judgment. When summary judgment is used to remove causes of action and defenses
a. Plaintiff can get summary judgment on an insufficiently proven affirmative defense
b. Defendant can get summary judgment on claims in the alternative not proven sufficiently
iii. Rule 50(a). Motion for a Judgment as a Matter of Law (Directed Verdict).
1. Happens after trial; No reasonable jury could find for non-movant based upon the evidence as presented at trial
2. Standard is the same as that for summary judgment, except it is entered after evidence is presented at trial
3. Rareusually the judge likes to have the jury return a verdict such that on appeal if a Rule 50 motion is
overturned the appellate court can enter judgment on the jury verdict
iv. Rule 50(b). Motion for a Judgment Notwithstanding the Verdict (non obstente verdicto)
1. Available up to 28 days after judgment on a verdict
2. Same standard as Rule 56 and Rule 50
v. Rule 59(a)(1). Motion for a New Trial.
1. Available up to 28 days after judgment on a verdict
2. Lower standardverdict was clearly against the weight of the evidence
3. Most often brought for excessive damage awards, in which case only the issue of damages is retried
4. Can be made if new evidence comes-out after verdict is entered
5. Judge may grant sua sponte if the jury charge/instruction was incorrect
b. Trial
i. Pre-trial disclosure of evidence presented 30 days before trial (except for impeachment evidence)
ii. Jury selection
1. Can knock out potential jurors for cause

2. Can knock out potential juror for no reason at all (preemptory challenges)
iii. Presentation of evidence
1. Plaintiffs lawyer presents opening statement and plaintiffs evidence
2. Witnesses directly examined by plaintiffs lawyer and cross-examined by defendants lawyer
3. At end defendants lawyer will often move for a directed verdict
4. Defendants lawyer presents opening and evidence
5. At end both sides will move for a directed verdict
6. Plaintiff and then defendant will make closing statements, plaintiff may reserve time for rebuttal
iv. Jury verdict
1. Special Verdict. Questions are submitted to jury to determine if jury applied law to facts properly; sometimes
questions are purely factual and judge takes jurys answers and applies law to them.
2. General Verdict. Return a verdict of liability/no liability and amount of damages
c. Judgment
i. Rule 60. Motion to Set Aside the Judgment.
1. Collateral attack.
2. New evidence comes-out for movant that movant believes would have altered outcome of trial
3. Motion must be made to the court that rendered the original judgment
4. Normally allowed for up to one year after judgment
ii. Rule 69. Enforcement of Judgment.
1. If you continue the federal suit to enforce the judgment Rule 69 applies
2. Rule 69(a)(2): allows the court to discover the source of defendants assets
3. Submit a writ of execution to the local federal marshal, who will then seize property
4. State law governs supplementary proceedings (Suit on the Judgment)
iii. Relief Granted
1. Injunctive Relief. Tells the defendant to stop doing something, backed-up by sanctions to encourage compliance
2. Damages. Creation of a debt, in order to enforce the debt the plaintiff must go through debt collection
d. Res Judicata (Preclusion)
i. Claim Preclusion.
1. To have a preclusive effect on future litigation, a judgment must be:
a. Final (a judgment is still considered final while on appeal)
b. Valid
c. On the Merits
2. Once a judgment is entered, the plaintiffs claim is considered to be merged in the judgment
3. Prior Action Pending

a. If you attempt to bring a claim that is normally claim-precluded while other litigation is in progress, it is
barred not by res judicata but by prior action pending
b. This includes compulsory counterclaims that should have been brought
4. You always look to the claim preclusion law of the rendering court to determine whether a claim is precluded
5. Scope of a claim: any causes of action arising out of the same transaction
a. For contract and debt suits, you have to sue on the entire running tab at the time of the suit, and will
typically have to amend your complaint to meet the total delinquency at the time trial begins
b. This above may not be true when separate contracts or unrelated transactions are involved
6. If a claim is never litigated, the claim preclusion rule does not apply
a. If the defendant defaults, then the defendant is not claim-precluded from later brining a separate action
for a compulsory counterclaim that should have been part of that original suit
b. The defendant could also exercise bad faith and default in order to claim-preclude the plaintiff from
bringing more meritorious claims that they didnt originally allege, because those claims will be claim
precluded unlike the compulsory counterclaims
c. Usually statutes of limitations are considered jurisdictional and not on the merits
d. If a suit is dismissed for failure to state a claim, the non-movant must request the dismissal be without
prejudice so that it does not have claim preclusive effect
e. Summary Judgment and N.O.V. are preclusive
7. When is a judgment not on the merits?
a. Statute of limitations
b. Jurisdiction and venue
c. Improper service or process
d. If so specified, failure to state a claim and dismissed without prejudice
e. Prematurity of action: failure to accrue a claim or meet preconditions (when statutes so specify)
8. If defendant acquiesces in claim-splitting, he cannot invoke claim preclusion after one suit comes to judgment;
Williamson v. Columbia Gas & Electric
ii. Issue Preclusion (Collateral Estoppel)
1. Needs to be the same issue
a. Issue preclusion is not about what should have brought up in the first suit
b. About legal issues and not legal theories
2. Issue must have been actually litigated and decided
a. Trial and judgment issue preclusive
b. Direct verdict (or N.O.V.) issue preclusive
c. Summary judgment issue preclusive

d. Default judgment no issue preclusion (has claim preclusive effect)

e. Consent Judgment - whether it has preclusive effect is determined by the parties (is claim preclusive)
f. Admissions no issue preclusion (includes Rule 36 Request for Admissions)
g. Rule 37 Discovery sanctionsdiscretion of sanctioning judge (is claim preclusive)
h. Failure to state a claim?no issue preclusion (has claim preclusive effect)
i. Jurisdictional issues if a court finds you are subject to jurisdiction then that finding is preclusive
3. Issue must be essential to the judgment
a. When no finding is essential because either would be sufficient: ways of handling:
i. First Restatement of Judgments: both preclusive
ii. Neither are binding and there is no issue preclusion
iii. Second Restatement of Judgments: neither preclusive unless there is a determination of
whether issue was taken seriously
b. Last in Time Ruleif an issue is actually litigated and decided and essential to the judgment, but the
precluded party fails to raise issue preclusion as a defense, they are stuck with the adverse
determination if the issue is found differently the second time
i. You always look to the issue preclusive rules of the court that rendered the original judgment
when deciding whether an issue is preclusive
4. Exceptions to Issue Preclusion
a. Limited Appearances
b. Successor of Interest
i. Beneficiaries of a trust
ii. Beneficiaries of an estate
iii. Purchaser of property
c. Different standards of proof or persuasion
d. Substantial procedural remedies not available in first suit
i. Aggressive pretrial discovery is an innovation of the federal rules not all states have adopted
ii. Twombly: you could have something fail to state a claim in federal court and not in state court
iii. Jury trialfederal procedure usually gives more power over to the jury than state procedure
e. Pure issues of law
i. Pure issues of law have stare decisis, but res judicata and collateral estoppel are actually
stronger than stare decisis
ii. Mixed issues of law and fact are issue precluded, with the public welfare exception (Brown v.
Board of Education; similar class actions decided under Plessy v. Ferguson are not issue
precluded, although they are determinations with mixed issues of law and fact)

f. Inequitable administration of public law

5. Privity
a. For issue preclusion to apply, you must be a party in the previous suit or in privity with a party
b. Who is in Privity?
i. Guardian/Ward
ii. Trustee/Beneficiary
iii. Executor/Decedent
iv. Successors in interest (purchasers of property)
v. 100% owners of private companies, LLCs, Partnerships in privity with the corporate entities
c. Cutting Edge Doctrinenecessary partiesnot parties or in privity
i. If someone is a necessary party, is aware of a lawsuit (actual notice), and fails to intervene being
otherwise able to (even if there is lack of personal jurisdiction and venue), they are issueprecluded by any adverse determinations in the lawsuit
ii. Members of a class are issue-precluded from relitigating the outcome of class action suits
6. Mutuality
a. The old common law rule was that even for issue preclusion to apply, both parties had to be parties or
in privity with a party in the previous lawsuitthis is called mutuality
b. Exceptions to mutuality always recognized:
i. Respondeat Superior
ii. Indemnificationif a state allows direct actions or if there is otherwise a situation where
someone is indemnified against a loss, you couldnt have separate lawsuits against both the true
defendant and the indemnifier
iii. In Rem Actions
7. Non-mutuality
a. The party asserting issue preclusion wasnt a party or in privity in the earlier suit.
b. Defensive Non-mutual Collateral Estoppel
i. Precluded party was a plaintiff in first suit
ii. Second subtype: Precluded party was a defendant in first suit
c. Offensive Non-mutual Collateral Estoppel
1. Precluded party was a plaintiff in first action
2. Precluded party was a defendant in first action (Parklane Hosiery Co. v. Shore)
ii. Limitations on offensive collateral estoppel
1. Party taking advantage of issue preclusion must not have been aware of the lawsuit
2. Party taking advantage of issue preclusion could not have intervened in the lawsuit

3. First lawsuit cannot be a class action

4. Cannot be used when there are inconsistent determinations of an issue
IV.

Choice of Law
a. One sovereigns law in another sovereigns court
i. Old-fashioned approach: the law of the place of the harm (lex loci delicti)
ii. Modern approach: Interest Analysis (choose the law of the state with the greatest interest)
b. Determining the law of another sovereign
i. Horizontal Choice of Lawsister state law in state courts
1. If there is no sister state Supreme Court decision on point in a problematic area, then the court predicts what
the sister state Supreme Court would do
2. Certification: court asks the appropriate state supreme court to answer the question
ii. Vertical Choice of Lawstate law in federal court
1. Swift v. Tyson - The Supreme Court held that federal courts sitting in diversity did not need to apply a states
common law opinions. This rule only applied to common law jurisdictions (not therefore Louisiana)
a. Rationales for Swift:
i. Positivism
ii. Natural Law Theory
b. Problems with Swift:
i. Forum Shopping
ii. Federalism: Federal judges in district court not bound as to state court opinions; states
sovereignty was being violated because their courts werent making their laws; federal courts
have no power to create state law
iii. Rules of Decision ActSupreme Court interpreted this as binding only to statutes and not to
judicial decisionsis the Tenth Amendment Full Faith and Credit Clause actually being violated?
2. Erie R.R. Co. v. Tompkins - the federal court must defer to what the relevant state supreme court would say
a. There is no general federal common lawsometimes this is interpreted to mean that all federal law is
that of a statute or regulation or constitution or treaty- but federal courts do create common law.
b. There is still the possibility of forum shopping
i. In an area of law undergoing change, a plaintiff may choose to sue in federal court to get the
new law earlier
ii. In state court, the lower courts will be bound until the case reaches the supreme court and is
overturned
3. Binding Precedent in State Court

a. Ruling by a state trial court. This law is not binding anywhere - it is not even binding on the same court
if a strong argument for overruling stare decisis exists.
b. Ruling by a state appellate court. The law is binding on state courts that the appellate court supervises.
It is persuasive authority for the state supreme court.
c. Ruling by a state supreme court. Binding authority on all lower courts in the state, persuasive authority
for itself; the state supreme court could overrule itself.
d. Binding precedent is binding. Even if an appellate judge or a trial judge thinks the supreme court will
rule differently or overturn a decision, they still need to follow the existing law on the matter
4. Binding Precedent in Federal Court
a. When interpreting Federal Law, the same rules apply to federal courts as do to state courts
b. When interpreting State Law, the Federal Appeals Courts are not binding on lower federal courts (both
do their own do novo analysis predicting what the state supreme court will decide)
c. State and Federal courts are considered co-equal in interpreting federal law. So a ruling by a federal trial
judge or even a circuit judge is not mandatory authority for state court judges, even while it remains
strong persuasive authority
d. The U.S. Supreme Court is binding authority on everyone when it interprets federal law
c. Substantive and Procedural Law
i. Substantive Lawlaw that determines the outcome of litigation
1. Statutes of limitations can be either substantive or proceduralthe default position is that they are procedural,
but if they are incorporated directly into a statute they are considered substantive
a. Borrowing Statuteswhen a state enacts a statute that says to use the statute of limitations of the
state of the cause of actionnormally the state would use its own (unless a statute of limitations is tied
to a cause of action by statute), but these statutes override that and say to use the horizontal states
b. Federal Courts borrow the statute of limitations the state court would use (including borrowing statutes
if they are in place)
ii. Procedural Lawlaw that governs how the litigation takes place
1. Common Law procedural law
a. Vertical Uniformitydesire for a cause of action under state law to come-out the same whether it is
brought in state court or federal court
b. Countervailing Federal Interestwe ignore vertical uniformity when there is some countervailing
federal interest in procedural common law that dictates a case come-out a different way
2. Procedural power of a state court entertaining a sister state action
a. State uses sister state substantive law (e.g., burden of proof for contributory negligence), its own
procedural law (e.g., statute of limitations)

3.

b. It may use the other states procedural law when

i. Sister state drafted statute because they wanted statute of limitations or other procedural law
to be bound into the substantive law
ii. Forum state wants to use sister states procedural law for its own purposes (Borrowing Statute)
Procedural power of a federal court entertaining a state law action
a. Twin Aims of Erie (from Hanna)
i. Does the procedural difference encourage forum shopping?
ii. Does the procedural difference lead to inequitable administration of the laws?
b. Erie flow charthow to effect analysis of what procedural law applies
i. Is the federal court sitting in diversity/alienage jurisdiction (or a cause of action with
supplemental jurisdiction)?
1. If no no Erie problem. Just use federal procedure for federal question cases
2. If yes, continue to second question
ii. Is the relevant federal procedural law mandated by Constitution?
1. If yes use federal procedure (when would this come up? Seventh Amendment and
judge/jury roles in federal court as interpreted by Supreme Court)
2. If no continue to next element
iii. Is the relevant federal procedural law a federal statute?
1. If yes so long as the law is arguably procedural, you would use the federal procedure
a. In theory, Congress has the power to subrogate all state procedure in federal
court by statute, the Rules Enabling Act only applies to FRCP
2. If no continue to next element
iv. If the relevant federal procedural law a FRCP?
1. If yes consider whether
a. It is arguably procedural?
b. Does it abridge, enlarge, or modify substantive rights? Rules Enabling Act
2. As long as it is arguably procedural and it does not abridge, enlarge, or modify
substantive rights, the FRCP should be used
3. If the answer is no, to the second part, Shady Grove suggests that you would look to
state procedure if there is substantial evidence that the state meant for the procedural
remedy to be bound-up with substantive law
v. Is the relevant federal procedural law federal procedural common law?
1. If yes determine if
a. The state rules is bound up with cause of action. If so, use state law.

b. If not, look to twin aims of Erie. Does difference lead to forum shopping and
inequitable administration of laws?
c. If it does not lead to forum shopping, and is not bound with cause of action, use
federal common law.
2. Even if it difference leads to forum shopping can still use federal rule if there are
sufficiently strong countervailing federal interests