Professional Documents
Culture Documents
OVERVIEW
A. Constitutional Basis for Jurisdiction:
1. Article III: Sets up the Federal courts. 1 establishes Supreme Court and inferior
courts as Congress ordains. 2 sets limits on the Federal judicial authority
(jurisdiction), providing for diversity clause to allow for diversity of citizenship.
(a) Article III courts Supreme Court, Appeals Court & District Courts (judges have
life tenure) 11 circuits + DC circuit + Court of Appeals for Federal circuit for
specialized courts (13 total)
(b) Non-Article III courts bankruptcy, tax, etc (enacted by Congress under Article I
powers of constitution) (judges do not have life tenure)
2. Article IV 1: Full faith and credit is afforded in each state to judicial procedures of
another state. Dont hang your hat on this.
3. Article VI: Supremacy clause (constitution and federal laws overrides all state laws)
4. 14th Amendment 1: Due process clause. No state shall deny any person of life,
liberty or property without Due Process of the law.
(a) Personal jurisdiction was created as a result of this clause (Pennoyer v. Neff:
made personal jurisdiction part of the constitution).
(b) Also see 5th Amendment for another due process clause
5. Model of Constitutional Doctrine
(a) Text > Goal > Legal Test (=) [Legal Standard > Rulified Standard]
(i) take constitutional text
(ii) goal (elaborate with greater specificity where text is going gives guidance
but not sufficient guidance)
(iii) operative legal test for specific guidance
(i) legal standard (broad)
(ii) rulified standard (narrow)
II. PERSONAL JURISDICTION pg 65-189
A. What is Personal Jurisdiction?
1. Set of restrictions that limits a courts ability to make you litigate in that court
(a) Its a constitutional limitation
2. Limited by due process clause in 14th Amendment of constitution applies to state
courts and 5th Amendments due process clause applies to federal courts.
3. Mechanics of challenging personal jurisdiction
(a) dont appear (Pennoyer), take default judgment and collaterally challenge
when enforcement is fought (in jurisdiction where you are)
(i) then you say dont respect that judgment because that court didnt have
jurisdiction over me
(b) directly challenge it (best way).say you dont have jurisdiction over me
(i) Rule 12(b)
(i) every defenseshall be asserted in the responsive pleading (answer)
thereto if one is required, except that the following defenses may be
made
1. lack of personal OR (b)(2)
2. subject matter jurisdiction (b)(1)
3. either in answer or in pre-answer motion or special appearance
a. Special appearance not permitted in all states
(ii) if you forget to raise a challenge to personal jurisdiction?
(i) Treated as a waiver per 12(h) and (g) (youre screwed)
1. But not all pre answer motion defenses will waiver personal
jurisdiction. Only those included in Rule 12 will waiver personal
jurisdiction.
4. Choice of forum clauses are often not enforceable if they are unconscionable (K law)
since youre giving away constitutional rights
B. Origins
1. Pennoyer v. Neff (1877) US Supreme Court P 66 PJ in suit by ex lawyer in OR
(a) Pennoyer noted two types of actions with different processing requirements.
(i) In Personum Jurisdiction power over the person
(i) Court CANNOT obtain in personum jurisdiction over a person by a mere
publication of process
(ii) For jurisdiction, there must either be consent OR presence and service
of process
1. Presence means physically present + the service of process when
you are physically present
a. disjunctiveyou only need consent OR presence
(ii) In Rem Jurisdiction power over the land
(i) Can attach property in state in absence of in personum jurisdiction if the
action is about the property
(ii) Court CAN obtain in rem jurisdiction by publication of process
(iii) Assumed in attaching the property that the person who owns the property
will get consent. (attachment is legal term for an officially sanctioned
seizure of property)
(iv) Must attach the property before the law suit
(b) Court developed three-part legal standard for jurisd based on 14th Amend
(i) Consent (waive personal jurisd. defect), OR
(ii) Presence (regardless of purpose) AND service of process (must be service
of process when you are physically present) OR
(iii) in rem attachment of property before suit
(c) Pennoyer court understands state power to be territorialist, based on geographic
borders of that particular state. See * on pg 67.
(i) For the territorialist conception of state power, the way the state gets power
over the property of a non-resident is in rem jurisdiction.
(d) Pennoyer provided this rule doesnt apply to divorce
(e) Quasi-in-rem jurisdiction: says as long as there is property out there that could
be attached, that was enough to grant court jurisdiction. Could be personal or
real property. Expands reach of in rem to beyond just property. Grew between
Pennoyer and Shoe.
(f) Modern Pennoyer
(i) Consent first held that corporations could be subject to service only where
they were incorporated
(i) Later held they could operate outside the state that created them, but the
host state could impose conditions on outside corporations
1. Condition was often requiring consent (express of implied) to
jurisdiction
(ii) Less clear as applied to persons; some states made specific laws that
would require implied consent to jurisdiction (when driving on roads)
(ii) Presence
(i) Corporations do not always have to have a physical existence that
permits personal service where it is located
(iii) Courts used same test for presence and consent (doing business)
C. Constitutional Power
1. Redefining Constitutional Power
(a) International Shoe (1945) pg 80 - PJ from workers comp claim in WA
(i) Court changes legal standard of presence and consent to minimum
contacts and substantial justice and fair play (pg 82)
(i) These new concepts are essentially based on the notions of presence and
consent, as minimum contacts can be seen either as a form of presence,
or as implied consent to jurisdiction
1. Court could have come to the same outcome in Shoe using Pennoyer
legal standard (given Shoes employees in WA), but it changed the
legal standard because they felt its more logical
a. Abandons Pennoyer territorialist approach
(ii) Shoe tells us:
(i) Due process requires only that in order to subject a to a judgment in
personum, if he is not present within the territory of such forum, he have
minimum contacts with it such that the maintenance of the suit does not
offend traditional notions of fair play and substantial justice
(ii) Presence/minimum contacts requires only that the activities of the
corporation to have been continuous and systematic there, and give rise
to the liabilities sued on (casual presence without min. contacts is not
enough, but it was enough in Pennoyer)
(iii) Created sliding scale high level of activity supports PJ for all claims,
low level only for claims related to activity
(iii) Bottom line absent presence, consent, or in rem, court can still assert
jurisdiction. Shoe replaces presence from Pennoyer with minimum contacts.
(iv) Importance of the ruling is that it extended IS to cover individuals as well as
corporations.
(v) Rulifying Shoes new legal standard:
(i) minimum contacts AND
(ii) traditional notions of fair play and substantial justice
1. Rulification of this amorphous standard
1. estimate the inconveniences
2. are there continuous and systematic activities?
a. are these activities related or unrelated to the
lawsuit?
3. does the would-be defendant exercise the privilege of
conducting business in the state?
(vi) Shoe altered legal test applied, but unclear how far-reaching changes were
(brought us to Schaffer case) did it only apply to in personum or to all of in
rem? Unanswered for 30+ years. Answered by Shaffer
(vii) McGee v International Life Insurance further liberalized Shoe to one
who does business in the state even if not physically present. Some argue
this is extreme and not good law.
1. All minimum contacts needs is to be a single isolated act
2. As long as the claim relates to the act, you meet the requirements of
International shoes
2. In Rem Jurisdiction
(a) quasi in rem: not exactly this but close enough that, as long as there was property that
could be attached, that was enough to give jurisdiction even if not related
(i)
(iii) Action of the defendant must be purposefully directed into the forum
state, and is not merely one isolated occurrence (or stated otherwise, the
purposeful injection of the product into interstate commerce). See pg 107
(iv) Reasonability in requiring the defendant corporation to defend their
particular suit in the state forum (protects defendants & states interests)
1. including the forum states interest in adjudicating that dispute;
2. the plaintiffs interest in obtaining convenient and effective relief, at
least when that interest is not adequately protected by the plaintiffs
power to choose the forum;
3. the interstate judicial systems interest in obtaining the most efficient
resolution of controversies;
4. and the shared interests of the several states in furthering
fundamental substantive social policies
(c) Burger King Corp. v. Rudzewicz (pg 112) BK sued MI franchisee in FL
(i) Rule 4(k)(1) to know what federal courts power is with regard to federal
jurisdiction, look to state law that defines personal jurisdiction (federal incorporation
of state law)
(i) when in federal court, look to 4(k)(1) to see what the state law says about
personal jurisdiction (if it construes it more narrowly than federal law)
(ii) even if you dont have min contacts, if reasonable and fair, you can still assert
personal jurisdiction
(iii) What is the basis of the federal courts subject matter jurisdiction? Trademark. Its a
federal question case. So why does the court analyze this as a Rule 4(k)(1) question
as opposed to a Rule 4(k)(2) question? Because there was state jurisdiction
elsewhere. 2 only kicks in when D isnt subject to jurisdiction in any state. In that
case, federal courts will have jurisdiction over a person for claims arising under
federal law (not in diversity circumstances; must also be a federal claim)
(iv) Minimum contacts established because franchisee signed agreement with and would
have a 20 yr relationship with franchisor headquartered in FL. On the surface,
appears to be tenuous for minimum contacts, though.
(v) BK rule: Where a forum seeks to assert specific jurisdiction over an out of state
who has not consented to suit there, this fair warning requirement is
satisfied if the has purposefully directed his activities at residents of the forum
and the litigation results from alleged injuries that arise out of or relate to those
activities
(vi) Legal Standard:
(i) Minimum contacts / avail themselves of benefits of forum and
(ii) Reasonableness and Fairness
1. Factors
a. Burden on D
b. Interest of the state
c. Interest of the P
d. Efficient resolution
(iii) (if contacts are low, may have enough reasonableness and fairness to get
jurisdictionbut still need some contacts)
(d) Pavlovich v. Superior Court pg 118
(i) RULE: A court may exercise specific jurisdiction over a nonresident
defendant only if
1. 1) has purposefully availed himself of forum benefits
2. 2) controversy is related to or arises out of s contact with the
forum, and
(iv) Also must analyze efficacy within context of state contract law (adhesion), if
applicable
(i) Adhesion contract is a matter of state law
(b) Answer complaint but do not raise defense of PJ (waiver of this defense is
consent to jurisdiction)
(c) Just decide to litigate there (Burnham tells us an individual can allow herself to
be sued by a court in a state where she has no contacts)
(d) In addition to forum selection clauses, consent to jurisdiction clause, are choice
of law, arbitration and cognivit clauses these arent consent clauses (although
choice of law can be inferential for minimum contact)
(i) Cognivit clause waiver of right to litigate (most constitutional rights can be
waived) might be limited by state contract law
4. If you have PJ through other means (minimum contacts), consent is irrelevant.
E. Notice
1. 2 basic means of notice:
(a) waiver of service inexpensive and informal
(i) mailing defendant complaint forms 1A and 1B
(ii) if mails back signed 1B, case proceeds
(b) summons expensive and formal
(i) if D refuses to cooperate
(ii) draft, take to clerk of court for signature, then deliver in authorized way by
Rule 4 (federal marshal or private process server)
2. Mullane v. Central Hanover Bank & Trust Co. pg 156
(a) STANDARD: For due process, notice must be reasonably calculated, under
all the circumstances, to apprise interested parties of the pendency of the
action.
(i) Additional guidance from the cases facts to start to rulify standard:
(i) The form chosen is not substantially less likely to bring home notice than other of
the feasible and customary substitutes very fact centered
(ii) Publication plus sometimes may suffice where theres a large # of benes
1. Actual mailing to addresses of beneficiaries whose addresses are known
2. Publication alone, where addresses cannot be identified with due diligence
(iii) For smaller number of benes, service may be required
(iv) In non-class action context, notice is always required (see Rule 4)
(b) In relation to Pennoyer:
(i) Pennoyer notice by publication is sufficient where property is first seized
OR where the object of the action is to reach and dispose of property in state
(ii) Mullane due process requires notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action
(c) Modern Mullane has been generalized outside its circumstances. Due process
can occur if a court asserts power over a who has not actually received
notice (if efforts were reasonable based on circumstances)
3. Service of Process establishes jurisdiction IF:
(a) Rule 4(k)s 4-tiered approach:
(i) 1(a) federal court has jurisdiction that is equivalent to state court of general
jurisdiction in the state in which judicial district is located, PLUS
(ii) 1(b) - 100 mile bulge from place of issuance of summons for parties joined
under rules 14 or 19, PLUS
(i) Means strategically if you are a trying to choose between state and
federal court and you have multiple parties you might be joining, it gives
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you a plus for the federal court because it may have more extensive
personal jurisdiction
(iii) if federal legislation specifically provides broad, national personal
jurisdiction for federal courts, PLUS
(iv) subject to constitutional limits, if its a claim arising under federal law and
there are sufficient contacts with US but not sufficient contact with any
single state to generate personal jurisdiction, federal courts can maintain it
Federal Service Method Rule 4(e) proper services methods based on underlying
law for court in the state in which federal district court is located, or permissible
federal methods
Service of Waiver: Rule 4(d) cheapest way to commence a law suit
(a) after drafting and filing complaint (Rule 3) MAIL by 1st class mail (or other
reliable means)
(i) 2 copies of notice of action + 2 copies of request for waiver of service + the
complaint. The letter also must inform of consequences of compliance and
failure to comply, and be dated. See 4(d)(2)(A)-(G)
(b) if you dont waive, cost may be assigned to . See 4(d)(2) & 4(d)(5)
(c) Shouldnt avoid service because you think case has no merit (not good faith
failure to comply)
(d) If you waive service you arent waiving right to contest PJ. Only waiving 12(b)
(4) and 12(b)(5) defenses.
(e) Carrot and stick 4(d)(1) avoid unnecessary expense of serving
(i) 4(d)(2) D pays cost of subsequent service if original is refused w/out cause
(ii) 12(a)(1)(A)(ii) Extends time to answer if you waive service
What to do with defendants who avoid service?
(a) Rule 12(m) allows plaintiff to extend 120 day service period for cause
(b) 4(d)(1) D has to duty to avoid unnecessary expense of serving, allows shifting
cost to defendant (but can only do so after he is served)
Rule 12 Defenses and objections when and how presented by Pleading or
Motion Motion for judgment on the Pleading.
1391 Venue
Statute of limitations may run until service is done (jurisdictional).
(a) Per Rule 3, for federal actions, when complaint is filed.
(c) Rule 4(k)(1). Federal district court looks to the state long-arm statute for PJ (with
exceptions noted in (1)(B) joinder within 100 miles (& meet constitutional PJ
rules) & (1)(C)- if authorized by federal statute)
(i) Have to be aware of state long-arm statute even if you sue in federal court
(d) Rule 4(k)(2) Federal question jurisdiction (as opposed to diversity) district
court has PJ exclusive of long arm rules if no state court has PJ and asserting PJ
complies with constitution
2. Venue 1391 (entirely statutory not constitutional)
(a) Place of trial
(b) Most states allow case to be brought where either party resides, where the claim
arose, or where the is doing business
(c) Suit is open to s challenge unless it has SM jurisdiction, Personal jurist, and
venue
(d) Jurisdiction decides proper STATE for trialvenue decides proper district within
the state for trial. Venue therefore acts as a localizing principle, important in big
states like TX and CA.
(e) Venue challenge is a 12(b)(3) challenge if you dont use it when challenging
other Rule 12 items, you lose it.
(f) 1391:
(i) (b)(1): venue in judicial district in which any defendant resides if all
defendants are residents of the state(applies to non-diversity jurisdiction)
(ii) (b)(2): venue in judicial district in which a substantial part of the events or
omissions giving rise to claims occurred
(iii) (b)(3): if no other district works, venue in judicial district in which any
defendant is subject to PJ (fall-back)
(i) roughly speaking, they say that if you dont have venue otherwise, then
any district in which there is personal jurisdiction will serve as venue
(iv) (d) corporation can be sued wherever it has PJ & resides in every district in
state of incorporation
(v) 1391(c) defines reside as where a person is domiciled
(i) 1391(c)(3) non-resident alien has venue in every district in US (green
card holders are permanent residents)
(vi) Post-Burnham, could argue an individual may not be found in a district
where personal jurisdiction is unavailable; being served in that district is
enough for PJ
(g) Dee-K pg 176 Need PJ, Service of Process and Venue
(i) Court has PJ over the per Rule 4(k)(1)(C) and minimum contact is
established since directing goods to US),
(ii) Service of process: 1) point to a statute that authorizes the service of process
over the in this case Clayton Act) and 2) the service of process pursuant to
the specified statute or rule must comport with due process).
(iii) Next look to whether there is venue under 1391(b)(3) an alien may be
sued in any district (still must meet PJ test, though, in that venue). Main
take-away: PJ analysis is distinct from venue analysis.
(h) 1390(c) - No venue analysis regarding cases removed to federal court; venue
lies in judicial district that encompasses the state court from which the case has
been removed
(i) States will have state venue statutes (which are relevant for state court) not
relevant for federal court
3. Declining Jurisdiction
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(a) Forum Non Conveniens common law doctrine leads to dismissal w/out
prejudice (must re-file paperwork) applies to federal and state courts
(i) Federal Court will not grant if more convenient location is in US and
venue can be transferred (see below)
(ii) Court normally makes dismissal conditional on counterpartys SOL waiver or
not challenging PJ in other forum
(iii) Piper Aircraft v. Reyno pg 181 plane crash in Scotland
(i) Pipers Legal Test: Plaintiffs forum choice given great deference, but
may be overridden upon a balancing test: Balance s choice v. private
interest of AND public interest of court court didnt rulify, just noted
factors
(ii) Plaintiff has substantial power of litigation but there are many common
law and statutory ways to move forum: eg. Forum non convenien
1. When an alternative forum has jurisdiction to hear a case and when
trial in the chosen forum would establish oppressiveness and
vexation to a out of proportion to s convenience, OR
2. When the chosen forum is inappropriate b/c of considerations
affecting the cts own administrative and legal problems, the ct will
decide whether to dismiss based on following factors.
a. Private factors: Relative ease of access to sources of proof; availability
of compulsory process for attendance of unwilling, and the cost of
obtaining attendance of willing, witnesses; possibility of view of
premises, if view would be appropriate to the action; and all other
practical problems
b. Public factors: court congestion; local interest in having localized
controversies decided at home; the interest in having the trail of diversity
case in a forum that is at home with the law that must govern the action;
the avoidance of unnecessary problems in conflict of laws, or in the
application of foreign laws; and the unfairness of burdening citizens in
an unrelated forum with jury duty.
(iii) Forum non conveniens is very rare and difficult to win court has discretion
1. Consideration of motion will create a mini trial because its so fact intensive
(b) Transfer between federal courts statutory doctrine leads to new venue
(all filings remain intact)
(i) Federal ct. can transfer to another fed. ct, but not to a state court state
courts can transfer to other state courts under state rules, but not to
federal court
(ii) While transferor may not have proper venue or PJ, transferee Court
must have proper venue and PJ
(iii) 28 U.S.C. 1404 Change in venue (from court with venue and PJ to
another with PJ and venue)
(i) When concerns of convenience and in the interest of justice (a)
(ii) Upon motion, consent, or stipulation of all parties Court has discretion
(iii) Governing law doesnt change use that of transferor court
(iv) 28 U.S.C. 1406 if a claim has been filed in the wrong venue, fix it by
dismissal or transfer (if in the interest of justice)
(i) Governing law does change use that of transferee
(v) 28 U.S.C. 1631 cure defect in personal or diversity jurisdiction (not for
subject matter because if one federal court doesnt have it then another wont
either)
(vi) 28 U.S.C. 1407 consolidating multidistrict litigation
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1. state courts do make new federal law sometimes and federal makes
new state laws sometimes
2. obviously going to be a function of the personalities of the judges
that sit in the places you are considering your litigation
B. Federal Question Jurisdiction no dollar limit
1. The key provision of 1331 gives district courts jurisdiction over cases arising
under the Constitution, federal law (mostly statutory), or federal treaties
(a) Narrower than Supreme Court standard under Article III, Sec 2
(b) Settlement of a federal claim (without a consent decree) is a state contract so a
violation of this is not a federal claim
2. State claim with a federal element if federal issue is substantial, federal court
can hear claim (Grable & Sons Metal Prod p 201), determined as follows does state
law claim:
(a) Raise a federal issue?
(b) Is issue actually disputed and substantial?
(c) Would having fed court hear matter disturb fed & state balance?
3. Well Pleaded Complaint Rule Federal question must be on face of complaint &
must be a necessary element of Ps claim.
(a) Mottley v Louisville & Nashville Railroad pg 197 state contract dispute:
performance precluded by federal law (RRs defense)
(i) Federal court cant have jurisdiction just because the defendant might use a
federal law or the Constitution to defend himself a defense isnt listed in a
WPC )
(ii)
(b) Not a WPC even if P would then respond to defense by saying Ds defense is a
violation of due process (rebuttal not part of WPC)
(c) Arising under in statute 28 usc 1331 vs. the US Constitution article 3, it has a
different meaning. It has a narrower construction.
(d) Smith v Kansas City Title pg 201 is a narrow exception to WPC violation of
state securities law relating to federal bonds held arising under
(e) WPC rule is an objective testdoesnt look to what this particular case did, but
what would a well-pleaded complaint say
(f) WPC rule is not constitutional its an interpretation of 1331
4. WPC and Declaratory Judgments (allows a person who would have been a D in a
suit to assert their rights when theyve been wronged)
(a) Declaratory Judgment Act allows the party that would ordinarily be the D to
initiate a law suit
(i) If Ps only cause of action would have been in state court, would-be D cannot
ask for dec judg in fed court
(i) dont want people to circumvent WPC rule and land in federal court
C. Diversity Jurisdiction Const Article III 2
1. Complete diversity between each P and each D is statutorily required but not
constitutionally required rule is different for class action
(a) Parallels what we saw in arising under jurisdiction: statutory grant read more
narrowly than what is constitutionally permissible
(b) Measured on the day complaint is filed. Can dismiss, move and refile.
(c) If P files in Fed Court under diversity, stmt is required in complaint Rule 8(a)(1)
(d) 1359 cant improperly join just for purposes of creating diversity (although
courts vary on definition of improper) standard on this can be lax, though (see
WW Volkswagon)
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(b) Partnerships & other unincorporated entities (unions) arent treated as corporations
but as collection of partners must look to citizenship of each partner to determine if
there is diversity
(c) Trusts citizenship of trustee controls
(d) 1332(c)(1) insurance companies are deemed citizens of state of insured if action is
brought directly against insurance (as opposed to insured)
7. Domestic law exception diversity jurisdiction doesnt extend to divorce, alimony, child
custody (Ankenbrandt): none of these matters are heard in federal court
8. Citizenship of representatives of child, incompetent, deceased control (Hawkins v Masterson)
9. Amount in Controversy Statutory not constitutional (Congress can modify)
(a) Must be a legal certainty claim will not exceed 75k for dismissal
(b) What if asks for injunction rather than $ damages:
(i) Determine value of injunction to
(ii) Determine cost to of complying
(iii) Determine the cost/value to the party invoking federal jurisdiction
(i) if filing in federal court, the if seeking to remove
10. Claim aggregation:
(a) A single can aggregate separate claims against single D under $75k, even
unrelated claims, to get to a total over $75k
(b) Cannot aggregate 2 s claims unless they have one single claim (due to joint
ownership)
(c) Can aggregate claims by different Plaintiffs if they arise out of same matter and
at least one is over $75k (using supplemental jurisdiction)
(d) Law is unsettled if compulsory counterclaim can be added to get to $75k some
states say yes
(e) If claim is over $75k but counterclaim is under $75k,compulsory type can be
heard, permissive type cannot
D. Supplemental Jurisdiction 1367
1. Const Article 3 2 judicial power extends to all cases and controversies
(a) United Mine Workers v. Gibbs (pg 223): Article 3 gives federal courts jurisdiction
over cases, rather than claims
(b) Start the analysis:
2 part test in the case for supplemental
(i) Whether s claim is related to a federal claim (relatedness) and
(i) Common nucleus of fact Ameriquest Mortgage pg 224 (combination of
federal TIL and State fraud case) when facts underlying separate fed
and state claims combine to tell one story, supplemental is appropriate,
also relevant was they couldnt properly calculate the remedy if they
dismiss the state claim (state fraud affects remedy of federal violation)
a. Relatedness: Whether State law is related to the federal claim.
This was raised by Ameriquest mortgage.
(ii) Not excepted by 1367(b) or (c)
(i) 1367(b) if jurisd based solely on diversity, cant use supplemental jurisd
on parties joined under Rule 14, 19, 20 or 24 (includes multiple
defendants under Rule 20) see pendant party below
(ii) Limitation only applies to plaintiffs doesnt apply to cross or counter
claims see Kroger Codification of this decision
(c) Discretionary component - District Court has Discretion to Decline
(i) 1367(c) understood that when it says district court may decline, it is a
general grant beyond the 4 enumerated bases of district court discretion to
exercise supplemental jurisdiction (exercise must support the interests of
judicial economy, convenience, and fairness)
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(ii) The Kalb v. Feruerstein exception: the rule stated above is default.
Congress, if it wishes, can provide otherwise. In Kalb the court concluded
that the bankruptcy act divested state courts of jurisdiction during pendency
of federal bankruptcy proceeding, even where parties failed to challenge SMJ
of the state court.
(iii) Not a constitutional mattergeneral rule is no collateral challenges. Can
be overridden but generally is not.
H. Challenging Both SMJ and PJ
1. A 12(b)(2) can be very fact intensive. If you can only make a 12(b)(1) motion
(assuming you can do so through a special appearance) and not lose ability to later
make a 12(b)(2), go ahead and do it. Otherwise, dont make a 12(b)(1) motion 1 st
because you dont want to lose your opportunity to make a 12(b)(2) challenge.
2. SMJ cannot be waived. PJ can.
3. Rule 12(b)(1) and 12(b)(2) different preclusive consequences with dismissal
(a) (b)(1) federal subject matter jurisdiction will allow refilling in state court
because no judgment has been made on personal jurisdiction
(b) (b)(2) federal court determination for lack of jurisdiction has preclusive effects
for state court (will not allow refilling state court in the same state)
(i) point is they have different consequences because there is different meaning
to dismissing a lawsuit on the different criteria
4. When a court has a Rule 12 motion before it, it has discretion to dismiss on whatever
grounds it wants
IV. THE ERIE PROBLEM no federal general common law (but still have federal
common law) most common in diversity but can arise with federal question cases
A. The question is: What is the law that arises, state or federal, in a diversity jurisdiction
case?
1. 1652 state law is rule of decision unless Congress or Const. says otherwise
B. Swift v. Tyson pg 241 laws of the several states in which US courts must apply
interpreted to encompass state statutes/legislation, but not state judicial decisions / state
common law
(i) Statute is created whereas common law is identified because it already
existed in the world, Judges just identify/find it
2. Overturned in Eriewhy?
(a) Privilege of choosing the court in which the right was to be determined was
conferred upon the non-citizen; equal protection impossible and therefore
unconstitutional
(b) Rights guaranteed under common law vary according to whether enforcement
was sought in state or fed court (forum shopping)
C. Constitutionalizing Erie
(a) Erie Railroad v. Tompkins pg 244 there is no federal general common law
(i) Except in matters governed by Federal Constitution or Federal Statute,
law to be applied is law of state. There is no federal general common law
pg 246 & 251
(ii) Court ruled Swift was unconstitutional (even though it could have done it
strictly based on Sec 1652 rules of decisions) because Swift is a:
(i) Violation of equal protection under 14th Amendment theory (different
results in two courts arent equal protection), 14th Amend since ruled to
apply to fed as well as states (at the time it was just states);
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(ii) Its problematic for fed. courts sitting in diversity to make law that
Congress couldnt make (would allow for a back door way for feds to
govern state law), such as the tort rules analyzed under Erie; and
(iii) Violation of federalism (flip side to (ii)).
(iii) Subsequent Courts interpret decision to have twin aims: discourage forum
shopping and avoid inequitable administration of law
(iv) But there is still federal common law for matters outside of state common
law, example: determination of water rights between two different states (no
federal statute on this)
(v) Federal Common Law still has to be followed by states through supremacy
clause
(vi) Forum shopping still occurs post-Erie (state to state) and procedural
differences between fed and state courts, as limited by PJ
(i) Erie has nothing to do with conflicts of law between states forum
usually applies forum law, but not always
D. Limits of State Power in Federal Court
1. Applying Erie its a choice of law doctrine to federal courts in diversity cases
governing what will be governed by common/state and which by federal law?
(a) Guaranty Trust Co. v. York pg 251 refines choice of law rule
(i) Would a state law statute of limitations apply in a federal diversity case
(ii) Outcome-determinative test
(i) Federal law governs procedure, defined as merely the manner and
the means by which a right to recover . . . is enforced
(ii) State law governs substance: question is whether the matter would
significantly affect the result of a litigation for a federal court to
disregard a law of a State that would be controlling in an action upon the
same claim by the same parties in a State court
(iii) If the outcome of a claim would be different under federal law, the
state law ought to be applied.
1. Not clear how to apply because even a font rule on a complaint can
be outcome determinative
(iii) Outcome determinative test made it easy for state law to apply in diversity
cases because almost any rule could be determinative in a particular case
(b) Byrd v. Blue Ridge Rural Electric Cooperative pg 255
(i) Under the federal regime, the jury gets to make that determination whether
worker was a statutory employee for workers comp purposes; under State,
the judge does (since it was a question of law). What law governs? This was
not a rule of federal procedure.
(ii) Modifies outcome determinative test - balance following interests to
determine if its procedure or substance:
1. The likelihood that the federal rule will substantially affect the
outcome / the inequitable administration of the law vs.
2. The federal system as an independent court system for
administering justice.
3. Court didnt provide clarity how to weigh these considerations
(iii) Doesnt eliminate use of forum shopping
(c) Synthesizing Byrd and Guaranty: Procedure vs Substance dichotomy is just
the 1st cut, then consider outcome determinative vs federal independent
court system
2. De-Constitutionalizing Erie
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(a) Hanna v. Plumer pg 258 service of process was OK under fed rule but not state
court said fed rule can be followed even though it determined outcome
(i) Applies only when theres an available Federal Rule of Civil Procedure and
Federal Court is in diversity if theres a contrary state rule.
(ii) Two step test:
(i) If federal and state rule conflict, but not in federal rules of civil
procedure, non-Hanna Constitutional approach applies (Erie, Byrd)
soft, indeterminate, balancing of interests.
1. This is because question was not considered by Congress so Court
must do Constitutional analysis.
2. Court does not apply this test deferentially.
(ii) If federal and state rule conflicts, and applicable federal rule is in fed
Rul Civ Pro., then apply the hard-edged and determinate Sibbach
test.
1. This is because the entities that created the rule (eg. Congress and
others) have already decided these rules are appropriate to use in Fed
court, so court doesnt need to do the Constitutional analysis.
2. Therefore, the fed. Rule of Civ procedure should apply, with very,
very limited exception.
a. Proviso must ensure the federal rule of civil procedure
must comply with the rules enabling act of 28 USC 2072 (a)
(eg. doesnt exceed Congressional authority under the
Constitution and doesnt reduce rights of citizens). Ask
question is it a rule of procedure? Rules of Procedure do not
enlarge or diminish substantive rights. Dont apply the
constitutional balancing analysis.
b. This is a much easier test to satisfy than the Erie, Byrd test as to
whether something is procedural.
i. Sibbach test applies deferentially in Hanna (to creators of
federal rule of civil proc). To date, Court has never found
Rul Enabling Act to exceed Constitutional authority. Some
believe Rule 23 (class action) exceeds this scope, but never
been successfully litigated.
(iii) If federal and state rules conflict, and theres an applicable federal
statute, apply federal statute
1. Per Supremacy clause to Constitution (Article VI of Consitution)
2. Court will attempt to avoid a conflict if both can be applied, court
will see Emmanual, pg 94, Problem 51
3. Hanna and Byrd tests co-exist despite that they are different. If youre in a postHanna situation and a question arises, which do you apply? Black letter law answer
is both are used by courts. No identified single operative legal test.
4. Choosing between state laws Erie doesnt provide guidance on which states
substantive law to apply in a diversity action (that of D or P). Which states law
would be based on factors such including where did incident occur and which state is
P from.
5. Determining the Scope of Federal Law: Avoiding and Accommodating Erie
(a) Semtek Intl Inc. v. Lockheed Martin Corp. pg 266 predates most recent
revision to Federal Rules of Civ Proc. (so 41(b) is now different)
(i) 41(b) not applicable here because it doesnt have application to state court.
If the second lawsuit would have been brought in any other federal court, it
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would be dismissed because 41(b) would not allow it to proceed. But since
the second lawsuit was filed in a State court, it is allowed to proceed.
(ii) This is a decision creating federal common law (what the res judicata effects
are of a federal courts decision in state court)
(i) Resulting rule: In a diversity proceeding, Federal Rule should
incorporate the state res judicata rule for the state which the original
federal district court was (not necessarily where case is refiled in
state court)
1. Dont look to res judicata rule for new state suit is filed in because
this would result in major forum shopping
2. They dont say the federal rule IS the state law (just based on state
law), because Justices believed claim preclusive effects of federal
decision have to be a matter of federal law.
(iii) Different than normal Erie question because this goes the other way (its
whether a State court respects federal procedure which resulted in dismissal
eg. what are claim preclusive effects?)
(i) Looked like a federal rule of civ pro applied, but court said no.
(iv) Court took pains to interpret Fed Rule Civ Proc 41(b) to get the outcome they
deemed most intentioned with Erie policy of not creating incentives for
forum shopping Res Judicata applied only in federal court for a matter
dismissed under 41(b) in federal court under diversity jurisd.
(i) Hanna question is not self-evident
(b) Choice of forum clause In state court, enforceability is a matter of contract law.
Byrd
(c) If state that treats them as enforceable and removed to federal court, must Fed
court enforce it?
(i) Stewart said federal court doesnt have to respect State court determination
under State K law. Court said Federal transfer Statute (28 USC 1404),
applies so under Hannah rule, this is federal Statute and, therefore,
procedural. 1404 gives broad discretion to federal court and forum selection
doesnt carry over.
(i) Allows parties in lawsuit to forum shop to potentially get out of a forum
selection clause.
6. Federal Substantive Common Law is unaffected by Erie. Applies to cases were US
is a party, admiralty law and international relations. If applicable, this common law
must be applied in state courts.
V. INCENTIVES TO LITIGATE
A. How much litigation? 98% is in state court. Why do we study federal rules of civil
procedure influence on state procedural rules.
1. Litigation explosion is a myth its not disproportionate to population and economic
growth
2. K suits makes up the biggest piece
B. Who wins
1. Tort suits are mostly won by Ds
2. K suits mostly won by P
C. 3 types of remedies: declaratory, substitutionary & specific
D. Substitutionary Remedies must prove not only violation of law but amount of
damages economic, non-economic & punitive
1. Compensatory Damages (determined ex poste)
(a) Ex.- expectation damages (economic) under K (limited by foreseeability)
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(iii) Habeus Corpus (order requiring official to disclose legal basis for
imprisonment)
(c) Equity
(i) If sole remedy sought is equity judge will hear case and court will have
substantial discretion (P doesnt have right to relief)
(ii) Injunction is most common equity relief
(i) Mandatory (do something) or prohibitory (dont do something)
(ii) Can be fined or jailed for contempt if party doesnt fulfill its terms
(iii) Other equity remedies
(i) Constructive trust (profits from fraudulent sale)
(ii) Rescission/cancellation/reformation of K\
(iii) Accounting of profits to determine award
(iv) Quiet title or remove clouds from title
2. Is There a Remedial Hierarchy?
(a) Use of injunction based on balance of hardship test (comparing hardship to
plaintiff and defendant) and public interest
(i) First consider if other remedies are adequate
(b) Sigma Chemical Co. v. Harris pg 308
(i) Harm to company of not having injunction greater than harm to ex employee
violating covenant not to compete if injunction were in place
(ii) Court glossed over whether other remedies may be adequate in focusing on
balance of hardship test because it wouldnt make sense when Defendant
couldnt afford to pay a judgment to company based on harm
(i) Injunction was limited to only certain capacities (eg not as restrictive as
covenant was) example of application of judicial discretion in equity
1. Competing schools of thought on drafting non-compete
a. Draft broadly because Court may narrow when enforcing
i.
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(b) Helps Ds without liquid assets (if they are just poor, wont get sued)
9. Fee Shifting Symmetrical (loser pays) / asymmetrical (only a losing P pays, losing
D does not)
(a) The Common Fund P brings action which will benefit group of people. May be
able to take attorneys fees from this judgment pool.
(i) Pre-dates class-action claims formed at end of suit rather than beginning
(ii) Not commonly used today
(b) By Contract noted in the agreement that loser pays if dispute arises
(c) By Common Law groundless suit may result in award of legal fees to D
(i) Chambers v Nasco pg 335 - $1 million in legal fees awarded to D based on
Ps bad faith
(ii) Tort of malicious prosecution
(d) By Statute
(i) Fees Statute: 42 USC 1988 gives Court discretion for awarding attys fees
to prevailing party (construed by Court to be asymetric) in Civil Rights
Claims
(ii) Some federal provisions allow for it (CAA, Civil Rights Atts Fees Act)
(iii) US Supreme Courts Alyeska decision opened this up to states
(i) Jurisdiction specific
(e) Evans v. Jeff D. pg 337 P and D settled and received a court approved consent
decree (consent decree has more legal effect than just a settlement agreement)
(i) Even if P is entitled to attys fees by statute, can waive it if he receives
adequate compensation in return (whether that be financial or otherwise),
such as consent decree
(ii) Since Court retains discretion under Sec. 1988, they could always add attys
fees back to consent decree settlements where Ds make them contingent on
waiving attys fees theres no caveat in statute
(f) Buckhannon v. West Virginia Dept. of Health and Human Resources pg 342
(i) Statute which awards fees to prevailing party did not require fees when
case is dismissed prior to court judgment or court ordered consent decree for
P when issue became moot due to change in law
(ii) Prior to this, courts had accepted a catalyst theory (if suit catalyzed
outcome you could be a prevailing party even if suit dismissed)
(iii) How to avoid ensure your case cant be mooted by asking for money
damages in addition to injunctive relief when filing claim
H. Provisional Remedies relief pending final adjudication (injunctive relief)
1. Why would you do it?
(a) Good way to generate leverage in settlement negotiations
(b) Helps to avoid mere paper judgments
(c) Avoid harm being suffered by client. Without it, relief may not be full.
2. Preliminary Injunctions Rule 65(a)
(a) Problems for Courts in awarding a PI
(i) Uncertainty dont have full info. on likelihood of Ps success
(b) Four elements
(i) Requesting party must prove they will probably prevail on merits of case
(i) If claim turns on facts, will have to provide more evidence (affidavits)
than required for a naked complaint
1. Court can take judicial notice of publicly-known facts
(ii) Requesting party likely to suffer irreparable injury if relief delayed
1. The burden of showing this is that there is likelihood of irreparable
injury
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(c) Federal court sitting in diversity will apply its own rules for granting TRO (under
Hanna since this is a Fed Rul of Civ Pro).
5. Provisional Remedies and Due Process
VI. PLEADING
A. Drafting a complaint See Rule 8
1. Considerations
(a) Rule 10 Form considerations
(b) Choose D carefully
(c) Choose Court carefully
B. Functions
C. Ethical Limitations
D. Special Claims
E. Allocating the Elements
F. Responding to the Complaint
1. Pre-Answer Motion- normally have to limit facts to complaint except for
jurisdictional challenges
2. Answer
(a) Denials
(b) Affirmative Defenses
3. Reply
4. Amendments
Pleadings: in general
1) Basically good for one thinggiving notice to other party of your intentions
a) Notice pleading you only need to put D on notice of assertions being made.
i) Used to be used to recover facts but now do that with discovery and use motions to
narrow facts
ii) Modern view is to limit the number of pleadings
2) Rules today provide for two basic pleadings: complaint (P) and answer (D)
3) Federal rule 7(a): third type of pleading: reply
a) Used in two contexts: in reply to answer and in reply to counterclaim
i) Reply to defendants answer
(1) Almost never happens and only occurs if court orders
(2) Anything on the answer is basically treated as denied by P so really doesnt have
to
ii) In response to counterclaim
(1) Responsive pleading to the answer
4) Most states use FRCP pleading but some use code pleading
1) Rule 11 applies to papers
a) While only applicable to papers, there are other basis for sanctions for malfeasance
elsewhere
b) Requires the attorney to sign all documents (not just pleadings) EXCEPT discovery
documents (have own certification requirement) (Rule 11(d))
c) 11(b) You are certifying to the best of your knowledge and belief after a reasonable
inquiry under the circumstance that certain things are true (Bridges v Diesel Service Inc.
Pg 13 Rule 11 sanctions not called for where mistaken claim which should have been
filed with EEOC)
i) Reasonable under circumstances will vary
(1)If rushing to meet SoLs on last second client
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(c) Not yet clear how these rulings should be applied in day-to-day litigation.
Still works in progress. Given recency, not sure how to apply. Bad for Ps
that dont have full info on what happened w/out discovery. See
2/27/14 lecture notes for Rosen Example.
(i) Probably applicable to all Fed Court claims subject to Rule 8.
(ii)Twomblys author (Souter) dissented from Iqbal. Hadnt intended
Twombly to apply to matters without huge discovery costs.
(iii)
Rule 8 Advisory pleading forms currently include legally
conclusory allegations (not yet re-drafted)
(d)Swanson v Citibank (not in materials) 7th Circuit subsequent decision said
the following about Iqbal (this is broader than Iqbal allows and not well
accepted)
(i) Specific facts arent necessary
(ii)Objective of RP 8 is to require pleading give D fair notice of nature and
basis or grounds of pleaders claim & type of litigation
(iii)
P must give enough detail so story holds together. Court will ask
could this have happened, not did it happen (eg. dont need to give facts
to plead each element of prima facie case)
(2)Theres a divergence between federal and state rules here (some require more
detail)
iii) Although pleadings are somewhat liberal (as modified by Iqbal), there are
circumstances when we must plead with detail and specificity
(1)Some specific federal & state laws (federal securities laws)
(2)Rule 9(b): circumstances constituting fraud or mistake must be pleaded with
particularity facts (time, place manner) intent can be plead generally to avoid
inappropriate lawsuits and not undermine contracts with liquidated damages
provisions
(a)Stradford v Zurich pg 401 fraud counterclaim by D dismissed for not
specifying the content of the fraudulent statement per 9(b) improper
pleading raised as affirmative defense
(b)Cannot just say Joe defrauded me
(i) Must say Joe defrauded me by misrepresenting the car I bought had
power steering when it did not
(3)Rule 9(g): items of special damages must be pleaded with specificity
(a)Special damages are those that do not normally flow from the an event
(i) i.e., a man gets run over by a car and suffers nerve damage that gives him
a permanent erection
1. not the normal automobile injury so must be plead with specificity
(4)In light of Iqbal, is there a heightened regime for everything? The existence of
Rule 9(b) infers Iqbal is incorrect. Perhaps 9(b) is higher than Iqbal. But, given
general pleading provision for intent in 9(b), perhaps Iqbal is higher?
(a)Not all state courts follow Iqbal, though and are just notice pleadings
(i) Incentivizes Ps to bring federal discrimination claim (turning on intent)
in state court
(5)Leatherman vs. Terrant County: (referenced in pg 409) if there is no rule (like
9(b) or (g)) or statute requiring detailed pleading the court cannot require it on
their own
(a)Courts were requiring greater specificity in civil rights cases brought by
prisoners and the SCOTUS said no, Courts cannot do so unless a rule of
Ford Procedure or statute requiring the specificity
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32
33
34
35
36
37
38
39
40
41
42
43
44
ii. Cheaper than depo. But doesnt allow for easy follow up
questions
iii. Helps to determine who you want to depose and what
other info to request
iv. Under oath (33(b)(3))
v. have 30 days to respond
vi. no more than 25 interrogatory questions per
respondent, including subparts without court approval or
stipulation from other party
1. If youre served with more than 25, dont answer
any
d. Request for Admission: rule 36: sent only to parties and cannot
be sent to non-parties
i. basically things like admit you ran the red light
ii. if the other party does not respond that can be treated
like an admission
iii. it doesnt discover new evidence in as much as it confirms
what issues are in dispute
iv. Impact of interrogatory vs. request for admission
interrogatory is evidence, which can be
contradicted with other evidence, request for
admission is a pleading which cant be contradicted
without amending pleading
e. Deposition: rule 30 and 31: depose somebody to give sworn
oral statements
i. fairly formal, in front of court reporter and under oath
ii. questions can be oral or written
1. rule 30: oral
2. rule 31: written
iii. under both answers are oral and under oath
iv. You can depose a non-party BUT you must subpoena (rule
45) the person or they do not have to show up
v. subpoena duces tecum: says not only do you have to
show but bring the evidence with you (like pictures or
documents)
vi. you cannot depose more than 10 people without court
order or stipulation of parties
vii. a deposition is presumed to be 1 day of 7 hours maximum
unless there is a court order or stipulation of parties
viii. a party can only be deposed once
ix. Rule 30(b)(6) request for depo - if representative for
entity is being deposed, in request you must state with
particularity the matters for examination
1. if questions are outside scope of notice, still need
to answer would have to object after the fact to
the judge (Rule 30(c)(2) is used to lodge
objection)
x. Generally, problems with the depo are handled later, not
at the depo
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46
47
48
b.
c.
d.
e.
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50
51
52
d.
e.
f.
g.
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all three) this language results in overlapping powers between judge and jury to
assess strength of all of the evidence
a. Reid v San Pedro pg 603 cow on tracks could have gotten on tracks
through gate in pasture (owners responsibility) or broken fence (RR
responsibility) each just as likely inference for D (RR). P had burden of
production cow came through fence and failed to do so. To let case go to
jury, evidence cannot show equal plausibility between P & Ds positions.
b. This isnt a violation of due process because right to a jury trial (7 th
Amendment) doesnt apply to states. Furthermore, federal courts have
concluded motions for judgment as a matter of law dont violate the 7 th
Amendment.
c. Pennsylvania RR v Chamberlain pg 649 Credibility determination should
be left to jury. Judge can take away only if witness is completely
unbelievable. Ps eye witness testimony was impossible to believe given the
distance & angle from event; and D had witness contradict Ps witness
testimony so JMOL is appropriate. Even though there was competing
evidence, the Ps witness was completely implausible (stronger than simply
not credible).
i. Rosen thinks Supreme Court got it wrong. Judge did make a
credibility determination (which they shouldnt).
b. Lind v Schenley Industries pg 658 Employee claimed there was an oral
contract for him to be the second highest paid employee. Court of appeals
reversed trial courts JNOV, which was granted on appeal, said judge had
improperly substituted his interpretation of witness credibility over jurys.
Jury has larger role than judge in this regard. Even if judge disagrees with
Jury.
i. 13th juror issue judge cant act in juror capacity
ii. Interestingly, appellate court didnt just reverse JNOV but also
judges granting of a new trial if JNOV is reversed (therefore jury
verdict had to stand) this is a rare slap down for exceeding judicial
discretion in inserting judges own opinion on credibility
iii. Articulates another standard for disregarding jury verdicts judge
should only grant to prevent a miscarriage of justice
1. Best read, this would only apply to JNOV ruling (and not
new trial ruling)
2. Circuit courts diverge on whether this is an appropriate
standard
Right to a Jury Trial - 7th Amendment (applies only to federal civil courts) 6th Amend
applies to criminl
1. Must demand right to jury under rule 38(b) (w/in 14 days of last pleading) and this right
is waiveable
2. if judge decides facts it is called a bench trial
3. Seventh Amendment (applies only fed cts and not state cts (one of only bill of rights
amendments not incorporated through 14th amendment to apply to states although many
states have similar statute)
a. Applies only to issues not to cases
b. Doesnt bar juries, just guarantees right in certain circumstances
c. Only applies to civil cases in fed ct and not criminal (covered by 6th
amendment). Preserves the right to a jury trial in actions at law, but not at
suits at equityit does not grant but preserves so locked into historical test of
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what would be allowed at common law in 1791 (year they ratified 7th
amendment) and its the common law of England
i. Law and equity develop different remedies jury only hears court of law
matter (not chancery / equity courts)- but law & equity courts merged in
1938
1. Basic common law damages is money to compensate for harm
2. Equity gives different damages that developed to cover areas
where damages really didnt make person wholeclassic equity
remedies are:
Injunction
Specific performance
Reformation and rescission of K
What about mixed cases?
i.e., Breach of K damages (common law) and D
counter rescission of K (equity) judge has
discretion on equity remedy but would need
to follow jurys substantive determination
ii. To apply today: two step approach 1) locate
closest historical analogy of type of claim,
assertable in 1791, if none 2) what type of
remedy is sought
1. This isnt very clear. Theres case law which provides answers
whether most claims have a jury right.
- Writs of replevin and ejectment, for example, is a legal
and not an equity remedy (therefore, can get a jury)
2. Congress also provides statutory jury rights (for certain claims).
4. Why do juries matter?
a. Perception is juries are pro-plaintiff. Recent social science doesnt clearly
support this theory. Understanding may change going forward.
b. Most countries dont have juries & few that do limit their use more than U.S.
c. Right to jury was very important to US founders independent of the crown
i. Juries stand between parties and justice system
d. Rosen says citizens are more skeptical of juries than judges are.
e. Juries make verdicts easier to swallow (self-government values)
f. Check on the government (jury nullification)
i. Protect against over-zealous prosecutors
ii. Disregard unjust laws
5. Complications
a. Nature of Issue
i. The legal nature of an issue determined by considering first the premerger custom with reference to such questions; second, the remedy
sought; third the practical abilities and limitations of juries.
1. Pre-merger means pre 1938 before distinction of law and equity
Only 1 of 3 factors
b. What if there are both legal and equitable claims?
i. Issue by issue, not case by case
c. What if a legal and equitable claim, in the same lawsuit, share a common issue?
i. Common issue is a factual matter that must be found to answer and
element of a claim. Sometimes a given fact applies to both legal and
equity matter.
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1. Jury decides that issue with regard to both legal claim and judge
is bound by the decision
2. EX: P brings a case asking for injunction that asks def not to
interfere with a contractual relation of P and 3rd person.
Selection of a Jury
1. Pool of jurors is assembled per 28 USC 1863-1864 & 1866, individual jurors are
challenged per 28 USC 1867(c)
a. County clerks have differing methods for selecting pools
b. Population profile of federal districts differ from states affects jury composition
i. Federal districts are larger
c. Voir dire - Entire pool is asked series of questions, then individual jurors are
asked questions (which may form basis for a pre-emptory challenge)
i. rules vary whether judge or attorneys ask questions usually judge for
federal and atty for state
2. Rule 48 6-12 jurors with unanimous vote for verdict
a. Each side has unlimited strikes of potential jurors for cause
Personal relationships, predisposition for/against a side this is the
courts responsibility (sua sponte) once peremptory challenges are
exhausted. This is because fair juror is a key component in justice.
- Thompson v Altheimer & Gray pg 619 racial discrimination
case: juror dismissed for cause: small business owner who
though some people filed spurious claims against employers.
Judge asked all jurors if they could judge case fairly. Judge did
not individually ask juror for an individual, unequivocal
response. Appellate Court, in abuse of discretion review, said
Judge should have elicited an unequivocal statement from juror
that her experience will not impact how she views the evidence.
a. Discussed harmless error standard (if error affects
outcome, trial judgment must be reversed)
i. Standard doesnt apply to appeals of biased
jurors because this is such a big issue (even if
error is harmless, still grounds for reversal)
b. Rosen suggests solutions to this issue:
i. Judge should dismiss any juror with any
question as to bias
ii. Follow up questions by judge should be done in
private (rather than as a group)
iii. Judge should describe their jury decisions as
credibility assessment, which will make
standard of review a bit higher
b. Each side has three peremptory strikes (judge made law).
i. However, you must have a race-neutral and gender-neutral reason for
using peremptory strikes (if theres a pattern to attys objections, reason
will be assumed)
- Edmonson pg 624: even though civil case between private
litigants, the selection of a jury is still state action and court will
not allow race based discrimination a state action.
- J.E.B. v AL pg 624 expanded to gender neutral basis
ii. Other party may challenge basis for peremptory challenge
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Role of Judge
1. Judges are ruled by Canon 3B(4). 28 USC 351 provides mechanism to file
complaints against judges for bad behavior, requiring investigation by the chief judge in
each circuit.
a. Violation doesnt remove judge from case, though.
b. Violation can result in discipline, though.
2. Some states allow peremptory challenges of judges. Normally get only one such
challenge.
3. Recusal is required by 28 USC 144 if judge discovers reasonable basis for recusal or if
party makes a motion with an appropriate basis, based upon criteria in 28 USC 455 for
impartiality. Impartiality defined as either:
a. Previously served as lawyer in this matter before becoming a judge or family
has a material financial interest, or
b. If impartiality might reasonably be questioned.
c. Caperton v At Massey pg 629 application of state recusal statute created the
2nd prong for recusal - president of one of the parties donated $3 mil to judges
election. US Supreme Court said it would deny due process to allow him to hear
case because of appearance of bias. Also of relevance is whether the average
judge in his position is likely to be neutral or whether there is a potential for
bias.
i. US Supreme Court intervened in state court matter since it was an issue
of due process
ii. This is a floor level for Judge objectivity (canon or statute may have
stricter limits)
d. 28 USC 455(e) provides a method for parties to waive recusal, but only in
limited circumstances
e. Recusals are rare. When requests are made, its normally done not on
constitutional grounds but based on federal/state recusal statute and/or canons of
judge conduct
Judicial Control of Juries
1. Rule 51 Jury instructions explain substantive law which applies to case, the sequential
way questions juries must answer to make decisions
a. Audience jury and appellate review
2. Excluding improper influences
a. Jury screening
b. Rules of evidence
3. Rule 48 - Jury size (6-12) and unanimous decision rules
a. Constitution is silent on size and decision rules
4. Judgment as a matter of law (Rule 50(a)) see above
Renewed Motion for Judgment as a Matter of Law (Judgment Notwithstanding the Verdict)
- exactly same criteria as JMOL, just different timing
1. Commonly known as JNOV Rule 50(b) The judge has let the case go to the jury, and
the jury has returned a verdict for one party. The court enters a judgment. The losing
party brings this motion and if the motion is granted, we take the judgment away from the
person who won the verdict and we enter judgment for the person who lost the verdict.
a. Must move within 28 days after judgment
b. Same method of review as Judgment as matter of law (no legal evidentiary basis
for a reasonable jury to find for the party)
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2. Rosen doesnt care what title we give various judgments, just refer to them as Rule
50(a) or Rule 50(b)
3. Judges are more likely to grant Rule 50(b) motions than 50(a) motions because if (a)
is granted, there was no jury verdict, so if it gets reversed on appeal, you have to have a
whole new trial, whereas if it gets reversed after a 50(b) motion, may not have to have a
new trial
4. If a party wants to make a rule 50(b) motion, must 1st make a Rule 50(a) motion
(pre-requisite
a. This is because directed verdicts have historic precedent but JNOVs dont, under
7th Amendment (so rule 50(b) motion is treated as a delayed Rule 50(a) motion).
b. Therefore, 50(a) motions are standard practice
Motion for New Trial Rule 59(a)
1. Judgment has been entered but there have been errors at trial that require the case to be
retried.
a. Awarded when judge realizes flaw in:
i. Procedures, ex. lawyer makes impermissible argument to jury, erroneous
jury instructions, inadmissible evidence in introduced, new evidence is
discovered after trial
1. Cant use a jurors testimony to impeach the verdict, though
a. Peterson v Wilson pg 665- jurors statements to judge
after trial couldnt be used to conclude that jury ignored
judges instruction and be a basis for a new trial
i. Also articulates great weight standard
b. Only federal exception to rule is evidence that a juror
relied on extraneous evidence to reach verdict
c. Jury deliberations are black boxed because
i. Need for confidentiality (to ensure jurors are
comfortable fully participating)
ii. Sausage analogy dont want to know what
goes into sausage (we dont really know who
deserves to win & juries are best we have to
resolve it & dont want to undermine it)
iii. Finality
1. Reasonableness
2. Public choice (group dynamics)
d. Special verdict (Rule 49) & general verdict with
interrogitories do require jury to answer questions
rarely used because jury statements can then be used for
basis for reversal
i. Litigator must ask the court via motion to ask
the jury for this
ii.
ii. Verdict, ex. jury mis-applied instructions, verdict is against weight of the
evidence
1. But, cant be 13th juror
b. Timing: Must be no later than 28 days. 59(b)
c. Errors at trial that require a new trial
d. If granted the judge was not comfortable with something in the trial that may
have affected the outcome
i. Almost limitless grounds for moving for this
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narrowly,sayingthattheadjudicationupon
themeritslanguagemerelymeantthatthe
suitcouldntberefiledinthesamefederal
court.Regardingpreclusion,thecourtheld
thatthepreclusiveeffectofafederalcourt
judgmentwasinsteadamatteroffederal
commonlaw.Regardingdiversitycases,
federalcommonlawwouldusuallybe
determinedbyusingthepreclusion
principlesofthestateinwhichthefederal
courtsat.SeeSemtek.Forfederalquestions,
federalcourtsmaydevelopuniformrulesof
federalpreclusionlaw.SeeTaylorv.
Sturgell.
iv.
c. Gargallo v Merrill lynch pg 745 no uniform
CL rule governing whether state court
judgment precludes federal claim. Instead,
must look to state law. Claim initially filed in
state court. Dismissed with prejudice for
lack of discovery participation. After he lost,
filed a securities fraud claim in federal court
(for same transaction), which state court,
couldnt have heard. Court said state rule
where the claim was originally filed
applies. State rule said this was an on the
merits judgment but also said no RJ if no
SMJ. Therefore, fed court can hear this since
state didnt have SMJ over federal claim.
k. RSTMT 26 (pg 772) carves out exceptions to RJ for unusual
circumstances
Issue Preclusion (Collateral Estoppel) RSTMT Section 27:
1. Narrower than RJ but cuts deeper (bars subsequent claims for different
cause of action, but same issue with RJ, need not actually litigate the
claim to be precluded. With CE, there must have been a litigation for
preclusion to occur.
2. Not a 7th Amendment violation because party had right to jury in 1 st
trial.
3. Black letter law:
a. When an issue of fact or law is
b. Actually litigated and determined by
c. A valid and final judgment, and
d. The determination is essential to the judgment.
4. Effect of CE is to say that issue is deemed to be established in case 2
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a. TRR
i.
ii.
iii.
iv.
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ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
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c.
d.
e.
f.
g.
h.
i.
Issue
SMJ Diversity
Amount
PJ
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Statutory
Minimal diversity reqd,
determined as between
at least 2 adverse
claimants
Ex P v D 2 or more
interplead states
different than each
other
$500
Nationwide service of
process comports with
Rule
Complete diversity
reqd, determined
between stakeholders
and claimants
Ex PvD interpleaders
come from states
different than P
$75,000+
Ordinary rules, contacts
with claimants reqd,
Venue
Injunctions (typically to
freeze assets or require
their delivery to a
claimant)
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f.
Contiuim of rights alterations claim/issue preclusion, stare decisis, preclusion from class
actions, legislation
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