Civil Procedure Outline

Civil Procedure Outline
I. Notice & Opportunity to Be Heard

A. Opportunity to Be Heard
1. 5th (fed-level) & 14th (state-level) Amendments guarantee “no person
shall be deprived of life, liberty or property without due process of law.”
[2 parts: (1) state action; (2) deprivation of life, liberty or property]
2. Mathews Test: (1) private interest; (2) government
interest/burden; (3) risk of error vs. value of additional procedures
a) Civil Detention
← Hamdi [Enemy Combatant]—In light of “fundamental nature” and
“most elemental right” on the side of private interest balanced against “weighty
and sensitive” governmental interest, Court retains/recognizes right to notice,
counsel and meaningful opportunity to contest factual basis for detention in front
of an impartial decision, but allows for lower evidentiary standards (hearsay) and
shifting burden of proof.
b) Prejudgment Remedies
← Sniadach [Garnishment case; by state statute, half of money held
prior to D being served or having an opportunity to respond]: Statue held to violate
the 14th Amendment—i.e., deprived of property w/o due process. Ct. notes:"There
are other decisions to the effect that one may be deprived of property by summary
administrative action taken before hearing when such action is essential to protect
a vital governmental interest.” (Foreshadows Matthews test)
←
c) Right to Counsel
← Lassiter [Child custody/parental termination]: Right to counsel
determined case-by-case, but presumption against except for absolute liberty
deprivation
← Walters [VA benefits appeal; provision prohibiting paying a lawyer
more than $10]: Rehnquist cites heavily Congressional intent, that the
administrative process “does not contemplate the adversary mode of dispute
resolution” and “Congress desired that the proceedings be as informal and non-
adversarial as possible. The regular introduction of lawyers in to the proceedings
would be quite unlikely to further this goal.”
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Gonzalez - Civil Procedure 1
B. Notice
1. Judgement only valid/binding if: (1) Service complied with Rule 4 (fed)
or state law/rules (state), and (2) Received constitutionally adequate
notice.
2. Rule 4
a) Valid types of service on domestic individuals
• In-hand/personal service. See Rule 4(e)(2)(A).
• Substitute service. See Rule 4(e)(2)(A). Leave with resident of
“suitable age and discretion” at “dwelling house or usual place of
abode”
Khashoggi [arms dealer with multiple mansions]: NY residence
was determined to be his dwelling house because he had made significant
renovations and was living there at the time; court indicates no grounds for ruling
had he not been present/residing at time of service.
• Other options include: (i) service per state law in forum or service
state (Rule 4(e)(1)); (ii) service on authorized agent (Rule 4(e)(2)(C)).
b) Note special rules for service on: (i) individuals in foreign countries
—Rule 4(f); (ii) domestic and foreign corporations—Rule 4(h); (iii)
federal govt—Rule 4(i).
c) Other key points:
• Service must be made by non-party over 18. See Rule 4(c)(2).
• Actual notice does not cure a Rule 4 defect.
Khashoggi: Rule 4’s requirements to be strictly observed.
Mid-Continent [Lumber supplier took 6+ years to collect on
judgement]:
• Defendant's actual notice of the litigation is insufficient
to satisfy Rule 4's requirement and confer personal
jurisdiction (citing Raviolo and Bennett)
• Unwise for a court to make its own rule/test re: service. “The
strength of this long-standing assumption [that federal courts
cannot add to the scope of service authorized by Congress],
and the network of statutory enactments and Judicial decisions
tied to it, argue strongly against devising common law service
of process provisions at this late date."
• The extent to which the plaintiff "tried" to serve process
should not be a factor as to whether a federal court has
personal jurisdiction over a defendant; the facts of the case fall
short of establishing clear and convincing evidence of evasion
on the part of the defendant.
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• "Reasonably Close" standard is only applicable to cases in
which "substantial compliance" is used to prevent a purely
technical error (citing United Food)
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• Trickery, judicial-witness immunity may invalidate otherwise valid
service of process.
Wyman [Woman lied to get ex-lover to FL for service]: Service of
process based on fraud is invalid in those states having a statute to that effect,
and is ineffective in establishing personal jurisdiction. When the first court enters a
default judgment, the defendant may raise the fraud or duress defense as part of a
collateral attack when the judgment is enforced in another state.
• Waiver: Party may waive rights under Rule 4 and agree to mail or
other service; Ds with waiver requests face ‘carrots’ (longer response
time) and ‘sticks’ (pay service costs if no good cause). See Rule 4(d).
3. Constitutionally Adequate Service

a) Key Points
• Actual notice not constitutionally necessary. See Greene.
• Publication notice not constitutionally sufficient where party’s name
and address are “reasonably ascertainable.” See Mullane.
• Posting more likely valid for in rem actions (where dispute concerns
property itself). See Greene.
• Official must attempt alternative service where clear notice not
achieved. See Jones v. Flowers.
b) Mullane Standard: “Notice reasonably calculated, under all the
circumstances, to apprise interested parties. . . and afford them an
opportunity to present their objections.”
← Green [Tenants evicted after notice via posting]: “The reasonableness
of the notice provided must be tested with reference to the existence of "feasible
and customary" alternatives and supplements to the form of notice chosen (citing
Mullane).
C. Challenging Sufficiency of Due Process

1. Direct Attack
a) In federal court, raise via Rule 12(b) motion, but denial not
immediately appealable (see Burger King).
b) In CA, OK, or other state court, typically done via motion to quash then
extraordinary writ (e.g., mandamus) going over trial judge’s head if
denied (see WWVW).
2. Collateral Attack—Risky, but raise issue via habeas petition or Rule
60(b) (or state equivalent) motion in separate action after trial on merits,
default judgment, or in response to attempt to execute on prior judgment
(e.g., Khashoggi).
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3. Note: In federal court a denial of dismissal based on jurisdiction challenge is
not immediately appealable—must have a full trial first. Implication is that findings
of fact from the trial are held throughout the appeals process.
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II. Jurisdiction
A. Personal Jurisdiction
← Note: In federal court a denial of dismissal based on jurisdiction challenge is not
immediately appealable—must have a full trial first. Implication is that findings of fact
from the trial are held throughout the appeals process.
1. Pennoyer [quasi-in rem action, but land was attached after the fact]:
Court can exercise jurisdiction over a D in 3 circumstances
a) Physical presence (i.e., showing up to court)
b) Property
(1) In Rem-State has jurisdiction over all property in its boarders
(2) Quasi in rem-state has jurisdiction over issues where property
w/in its boarders has been attached in an unrelated claim
c) Consent - D voluntarily appears
2. Service of process v. personal jurisdiction - In-hand, personal service
within the jurisdiction satisfies both Rule 4 and the Pennoyer test
3. Fair faith and credit clause requires state courts to respect each
other's rulings (i.e. allowing a judgement in one state to be executed on in
another), but ONLY if personal jurisdiction has been established in the
original case. It can be the duty of the second court to determine and/or
question jurisdictional defects.
4. Two-part Personal Jurisdiction Analysis
a) State Long-Arm or Rule 4(K) Analysis—Does State long-arm extend
to due process limits or something less?
← Rule 4(k): Incorporates state long-arm in states where federal district
court sits
• fed ct. will interpret state statutes according to the state supreme
ct.
• 100-mile “bulge jurisdiction provided by 4(k)(1)(b)
← Rule 4(k)(1)(C): jurisdiction otherwise authorized by federal statute
← Rule 4(k)(2): In fed-question case only, substantial US but diffuse state
contacts
b) Constitutional Analysis (Minimum Contacts + Fairness Factors)

(1) Easy Cases
(a) Individuals:
i)Forum-state domicile (current dwelling + intent to remain
indefinitely)
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Milliken [recover profits from CO oil properties. D was
always domiciled in WY]: Service is adequate so far as due process is concerned if
it is reasonably calculated to give the defendant actual notice of the proceedings
and an opportunity to be heard. The authority of a state over one of its citizens is
not terminated by the mere fact of his absence from the state. The state which
accords him privileges and affords protection to him and his property by virtue of
his domicile may also exact reciprocal duties.
ii) Tag
Burnham [Husband served while visiting children in
California]: Plurality opinion upholds traditional jurisdiction under personal
presence (necessary v. sufficient), emphasizing that only absent defendants are
subject to Shoe. Concurrence adds that the Court could invalidate if “severely out
of line” (which Burnham is not) and that tag jurisdiction should only count where
presence is intentional. (Brennan, dissenting from rational, voices “hey, jump on a
plane” perspective.)
Pennoyer [quasi-in rem action, but land was attached
after the fact]: Court can exercise jurisdiction over a D in 3 circumstances: personal
presence, property, or consent.
(b) Corporations:
Shoe [Multiple employees in WA, but no sales, offices, or other
business done there]: Minimum contacts in forum state allow for personal
jursidiction.
Helicopteros [Columbian co purchased helicopters from TX and
some pilot training but no other connection to state]: In order to exercise general
in personam jurisdiction over a party, the party’s contacts with the forum state
must be of a “continuous and systematic” nature.
i)state of incorporation
ii) principal place of business (or substantial facilities)
(c) Note: For general jurisdiction, claim need not arise out
of contacts.
(2) Harder Cases = Foreign, Nonresident D (individual or corp)

(a) Minimum Contacts: D purposefully established minimum
contacts with forum state and claim arises out of contacts.
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Relatedness Suit Arises from Suit Does Not
Type of Contact Contacts Arise from Contacts
Substantial Continuous 3: General Jurisdiction

and Systematic Contacts ——> (Shoe, Helicopteros)
Continuous and 1: Specific Jurisdiction 4: No Jurisdiction (Shoe)

Systematic Contacts Type A (Shoe)
Isolated and Irregular 2: Specific Jurisdiction 5: No Jurisdiction

Contacts Type B(Shoe, Gray; (Shoe)
WWVW; Asahi; BK)
No Contacts No Jurisdiction No Jurisdiction
Shoe [Multiple employees in WA, but no sales, offices, or other

business done there]: Fundamentally alters the test for personal jurisdiction,
establishing the concept of minimum contacts allowing for personal jursidiction.
Helicopteros [Columbian co purchased helicopters from TX and

some pilot training but no other connection to state]: “Even when the cause of
action doesn’t arise out of or relate to the foreign corporation’s activities in the
forum State, due process is not offended by a State’s subjecting the corporation to
its in personam jurisdiction when there are sufficient contracts between the State
and the foreign corporation.”
Wold Wide VW [Car purchased in NY; accident in OK]: So as not

to offend traditional notions of fair play and substantial justice, The relationship
between the party and the state must be such that it is reasonable to require the
corporation to defend the particular suit which is brought there. Foreseeability
alone is not sufficient for personal jurisdiction; degree of foreseeability that must
exist is not the mere likelihood that a product will find its way into the state, but
that the defendant’s conduct and connection with the state are such that he
should reasonably anticipate being haled into court there. Purposeful availment
provides clear notice of jurisdiction.
Gives rise to state long-arm statutes, building on foundations of
Shoe.
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Asahi [cross-claim between international manufacturers after
initial action settled]: Plurality opinion produces two options for assessing
minimum contacts.
Option 1 (O’Conner): The mere awareness/expectation that
a product may reach a remote jurisdiction when put in the stream of commerce is
not sufficient to satisfy the requirement for minimum contacts. Minimum contacts
require that there be additional conduct which would purposefully avail D of
the privilege of conducting activities within the forum state.
Option 2 (Brennan): It is sufficient to establish minimum
contacts to show that D has intentionally placed products into the “stream
of commerce.” (However, it would be fundamentally unfair and unreasonable to
require it to defend this suit in California.)
Asahi also establishes 5-factor analysis for “traditional
notions of fair play and substantial justice”: (i) D burden; (ii) forum-state interest;
(iii) P interest; (iv) comity, shared state interest in “efficient resolution” and
“furthering...social policies.”
Grey [P injured in IL due to faulty water heater valve; valve
manufactured in OH, heater assembled in PA and sold in IL.]: Even though a
company may not sell products directly to a specific state, when those products
are used within a state, the manufacturer is responsible for the safety of the
product, and thus must answer to any actions brought against it within that state.
Where there is no contesting the fact that the valves are widely used in Illinois on
water heaters and thus reasonable use and consumption within the state.
Therefore D benefits from the laws of the state and benefited from the protection
the law gives to the marketing of hot water heaters. Accordingly, state-long arms
can limit/expand personal jurisdiction as long as they fall within the constitutional
limits of due process.
Keeton [Libel action brought against Hustler magazine in NH; no
connection to forum state, but NH has longer statute of limitations]: Minimum
contacts is the relationship between the defendant, forum and the litigation. There
is no necessity that the plaintiff have a connection to(i.e., establish min.
contacts in) the forum. D continuously and deliberately exploited the NH market
and therefore must reasonably anticipate being hauled into court there.
Caulder [Jones brought libel suit against National Inquirer in CA.
Def. Calder, et. al are FL residents challenging CA’s personal jurisdiction over
them]: A state has personal jurisdiction over any party whose actions intentionally
reach another party in the state and are the basis for the cause of action. (i.e.,
Publications sold in forum state; cause of action arises out of these contacts.)
Caulder suggests that there may be a "boost" from plaintiff's connection after
minimum contacts have been established.
Shaffer [Shareholders suing company officers; attaching

company stock as property in a quasi in rem action]: "All assertions of state-court
jurisdiction must be evaluated according to the standards set forth in International
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Shoe and its progeny." Which means, even though quasi in rem under Pennoyer
doesn't require anything more for jurisdiction, Shoe analysis (i.e., minimum
contacts, etc.) must now be evaluated before jurisdiction can be found. Basically,
Shaffer dooms a quasi in rem action where no other contacts exist. (In Shaffer,
stock certificates are deemed insufficient to establish minimum contacts.)
However, in rem actions remain sufficient, since property is basis of contacts and
the nexus of the conflict.
Burnham ["Tag" Jurisdiction - Husband served while visiting

children in California]: Plurality opinion upholds traditional jurisdiction under
personal presence (necessary v. sufficient), emphasizing that only absent
defendants are subject to Shoe. Concurrence adds that the Court could invalidate
if “severely out of line” (which Burnham is not) and that tag jurisdiction should only
count where presence is intentional. (Brennan, dissenting from rational, voices
“hey, jump on a plane” perspective.)
Burger King [Franchisees challenge contacts based on

contract (K) which also included a choice of law provision]: Evaluation of K based
on contract incorporates all of the negotiations and interactions that went into
establishing the K. Via K, D "reached out beyond one state and create continuing
relationships and obligations with citizens of another state" are are thus “subject to
regulation and sanctions in the other State for the consequence of their activities."
Factors of consideration (1) prior negotiations, (2)
contemplated future consequences, and (3) terms of the contract (i.e., choice of
law or forum selection clauses), and (4) the parties' actual course of dealing in
determining whether the D purposefully established minimum contacts within the
forum.
Specific questions to ask: choice of law provision? From
where is contract supervised? Did contracting part know, ex ante, that she was
contracting with an enterprise based primarily in the forum? Where are relevant
notices and payments sent? Where were agreements made/enforced? Where were
key negotiating decisions made? D sophisticated, represented by counsel?
Shute [Carnival Cruise Lines and enforceability of forum-

selection clause]: Shute test evaluates the (1) privity of contract (i.e.,
reasonableness of notice) and (2) whether or not the forum-selection clause is
enacted in good faith (i.e., is not discouraging legitimate claims from its
customers). If so, forum-selection clauses are presumptively valid and enforceable.
Zippo [Dispute over trademark dilution between lighter co. and

unrelated website owner]: Establishes a sliding scale for internet-based/website
contacts.
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1)Commercial websites—Dose a substantial volume of
business over the Internet; customers in any location can
immediately engage in business with the website owner.
“If the defendant enters into contracts with residents of a
foreign jurisdiction that involve the knowing and
repeated transmission of computer files over the
Internet, personal jurisdiction is proper.”
2)Passive websites—Provides information only. “A passive
Web site that does little more than make information
available to those who are interested in it is not grounds
for the exercise [of] personal jurisdiction.” Jurisdiction
only arises if an intentional tort on the website(e.g.,
defamation) and is directed at the jurisdiction in
question.
3)Interactive websites—Permit the exchange
of information between the host computer and visitors.
“Jurisdiction is determined by examining the level of
interactivity and commercial nature of the exchange of
information that occurs on the Web site.”
←
i) Reasonableness: Subjecting D to suit would not offend
“traditional notions of fair play and substantial
justice”; Factors = (i) D burden; (ii) forum-state interest; (iii)
P interest; (iv) comity, shared state interest in “efficient
resolution” and “furthering...social policies.”
(b) Special Contexts/Rules
i) Out-of-state motorist generally subject to jurisdiction for
harm caused.
Hess [PA resident hits MA resident in MA accident]: A state
has the power to legislate that non-residents who use its highways consent to the
appointment of a third party as agent for the service of process in that state for
actions arising from use of the highways.
ii) Contacts about D, forum, litigation; P need not have
contacts. See Keeton.
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iii) Products liability “Gray” areas: Key distinction = stream of
commerce (e.g., component-product; wholesaler-distributor-
retailer) versus unilateral consumer action. Compare WWVW
with Asahi. But unilateral action foreseeable if relatively
proximate?
Gray [water heater explosion due to faulty valve]: D who
sells products that he knows will be used within a given forum may be required to
defend an action within that forum state, if accident occurred within the state.
Long-arm does not violate due process. The test established in International Shoe
has now been relaxed so that it is sufficient to satisfy due process if the act or
transaction itself has a substantial connection with the forum state and state
where injury occurred, provide the most convenient forum.
iv) Dueling Asahi pluralities: Brennan (stream-of-commerce;
mere marketing awareness) versus O’Connor (stream-of-
commerce-plus; “additional conduct”).
NOTE: In federal court a denial of dismissal based on jurisdiction challenge is not
immediately appealable—must have a full trial first. Implication is that findings of fact
from the trial are held throughout the appeals process.
B. Subject-Matter Jurisdiction
1. Diversity Jurisdiction (28 U.S.C § 1332): Complete diversity +
Amount in controversy
a) Strawbridge [notes case]: Complete diversity
(1) 4 types of diversity recognized in § 1332(a)(1)-(4)
(a) Citizens of different States
(b) Citizens of a State and citizens or subjects of a foreign
state
(c) Citizens of different States and in which citizens or
subjects of a foreign state are additional parties
(d) A foreign state as plaintiff and citizens of a State or of
different States.
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(1) Determining Citizenship
(a) Individuals: US citizen plus state domicile
Mas [LA landlord; invasion of privacy; grad
students from Fr. and MS]: Domicile defined as current dwelling plus intent to
remain; presumption of continuing domicile exists until affirmatively established in
new state.
(b) Corporations: State of incorporation and principal
place of business
Hertz [Employee class action in CA; Claiming
personal Jdx in CA under “muscle test”]: Nerve center test established; The term
"principal place of business" refers to the place where a corporation's high level
officers direct, control, and coordinate the corporation's activities—in other words
its "nerve center." In practice, the nerve center is normally the corporation's
headquarters, provided it is the actual center of direction, control, and
coordination.
(c) Partnerships: Citizen of every state where a partner
resides
(2) Exceptions and special contexts
(a) Exception for domestic relations, probate, certain in
rem
(b) Beware specific contexts: (i) resident aliens; (ii)
associations, partnerships, unions, etc.; (iii) banks; (iv)
trusts; (v) stateless parties
(c) Class Actions
(3) Curing Jurisdiction defects: Time of filing and curing
jurisdiction defects: may cure defect by adding or dropping
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party, but post-filing change in party status cannot create
or cure jurisdiction defect
Mas [LA landlord; invasion of privacy; grad
students from Fr. and MS]: Domicile established at time of filing; change of
domicile during course of the case does not cure personal jurisdiction defects.
Grupo Dataflux [incomplete diversity at time
of filing; non-diverse partners left during course of litigation]: Allowing diversity
jurisdiction to change after a case is filed would create uncertainty and expensive
litigation that dealt with jurisdiction rather than the merits of the case.
“Uncertainty regarding the question of jurisdiction is particularly undesirable, and
collateral litigation on the point particularly wasteful. . . .The stability provided by
our time tested rule (of requiring diversity at the time of filing) weighs heavily
against the approval of any new deviation."
ii) Amount in controversy must be over $75,000
(1) Aggregation: can aggregate across distinct, separate
claims, never across alternative claims or parties except
where undivided interest (e.g., joint property ownership)
(2) Class action minimum: $5M
2. Federal-Question Jurisdiction
a) 28 U.S.C. § 1331: Fed Cts “shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United
States.”
← Franchise Tax Board [CA dispute over state back taxes; D argues
protection under federal Employment Retirement Income Security Act]: Well-
Pleaded Complaint Rule = FQ jurisdiction if federal issue appears on face of well-
pleaded complaint
b) Actual disputed question? Essential (i.e., necessarily raised)?
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c) Easy Case: Express or implied private right of action
← American Well Works: “Suit arises under the law that creates the
cause of action.” (qtd in Holmes)
← Cort [notes case]: Sets forth four factors relevant to a finding of an
implied private right of action: (1) whether the statute was enacted for the benefit
of a special class of which the plaintiff is a member; (2) whether the legislative
history evinces an intent to create a private right of action; (3) whether finding a
private right of action would frustrate the purpose of the legislative scheme; and
(4) whether implying a private right of action is inappropriate because the subject
matter involves an area basically of concern to all states.
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d) Harder Case: Fed question in anticipated defenses, counterclaims,
declaratory judgment actions
← Mottley [Couple was giving unlimited train rides as compensation for
injury; later federal law prohibited this form of compensation]: The mere allegation
of an anticipated defense that arises by some provision of the Constitution does
not create a federal question giving a federal court jurisdiction. A suit may be
dismissed at the appellate level for lack of subject matter jurisdiction.
← Holmes Group [notes case, Mottley aftermath]: The well-pleaded
complain, not the counterclaim, determines whether a civil action “arises under”
federal law.
← Skelly Oil [notes case--Declaratory Judgment Act action—Mottley
aftermath]: “No decision of this Court has squarely confronted and explicitly upheld
federal-question jurisdiction on the basis of the anticipatory claim against which
the declaratory-judgment plaintiff presents a nonfederal defense.”
e) Hardest Case: FQ as "ingredient" of state-law claim
← Merrell Dow [Multiple Ps suing pharma co; part of action based on
violation of Federal Food, Drug and Cosmetic Act]: Where Congress did not intend a
private cause of action, private parties may not bring a suit solely on the basis of a
violation of a federal act. No diversity and no other claim arising under federal law,
federal question is not substantial enough to confer FQ jurisdiction.
← Grable [State quiet title claim hinges on resolution of an IRS debt
issue]: If the federal issue raised in the case was substantial, disputed and worthy
of federal discression it qualifies for FQ Jurisdiction.
Grable Test [4-part inquiry]: (1) federal law constitutes essential
element of pleaded claim; (2) case implicates substantial federal issue; (3) federal
issue is contested; and (4) federal jurisdiction will not upset "division of labor”
between state and federal courts as contemplated by Congress (turns on
frequency with which issue will arise (Grable) and whether fact or law question
(Empire Healthchoice)
←
← Smith [cited by DISSENT in Merrell Dow]: "The general rule is that
where it appears from the bill or statement of the plaintiff that the right to relief
depends upon the construction or application of the Constitution or laws of the
United States, and that such federal claim is not merely colorable, and rests upon a
reasonable foundation” FQ Jurisdiction exists.
← Empire Health Choice [Insurance co seeking to recoup costs from
beneficiary who won settlement against injuring party; Empire brought suit in fed
court since the insurance policy was negotiated under Fed. Employees Health
Benefits Act]: Absent that specific provision indicating fed Jurisdiction, a significant
conflict with an identifiable federal interest, or the need to resolve a substantial
question of federal law in order to establish the P’s right to recovery, there was no
reason to depart from the ordinarily-governing state law and thus state court
jurisdiction.
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←
←
C. Supplemental Jurisdiction (28 U.S.C. § 1367)
1. § 1367(a) grants supp. jurisdiction in “civil action” where federal court
has original jurisdiction, and where claims share a “common nucleus of
operative fact”
2. § 1367(b) takes it away in particular diversity situations
3. § 1367(c) supp. jurisdiction is discretionary under
4. Common § 1367(a) Situations
a) federal claim, state claim (codifying Gibbs)
b) federal claim, state counterclaim
c) diversity jurisdiction, nondiverse or under-amount crossclaim
d) diversity jurisdiction, under-amount counter-claim
e) federal claim, state claim against additional non-diverse D (overruling
Aldinger, Finley)
5. § 1367(b) Carve-Out Rules: applies only in diversity cases where
claims do not separately satisfy § 1332 P claims against parties joined
under
a) Rule 14 (third-party D),
b) Rule 19 (required joinder),
c) Rule 20 (permissive joinder), or
d) Rule 24 (intervenor); or
e) claims by Ps proposed to be joined under Rule 19, 24.
←
6. § 1367(b) carve-out does *not* apply to under-amount claims of Ps

proposed to be joined under Rule 20, 23; but *does* apply to nondiverse Ps
in such position (Allapattah)
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← Allapattah [Exxon dealers suing Exxon corp for overcharging; ruling
also applied to Star-Kissed Foods where family members attempted to join suit
personal injury as additional plaintiffs claiming emotional distress]: As long one
plaintiff meets the amount-in-controversy requirement for federal jurisdiction,
Section 1367 authorizes federal courts to exercise supplemental jurisdiction over
related claims even if they do not meet the requirement.
• Findley [cited in Allapattah; P sought to combine Ds in a civil plane
crash action in federal court because it was the only place the
federal government could be sued]: Parties that otherwise could
not be sued in federal courts can not be brought into federal court
solely on the basis of having their claims share the same facts as
the claim mandated to the federal courts.
• Clark [cited in Allapattah]: Proper practice requires that where
each of several plaintiffs is bound to establish the jurisdictional
amount in controversy with respect to his own claim, the suit
should be dismissed as to those who fail to show that the requisite
amount is involved.
• Gibbs [cited in Allapattah]: Allows supplemental jdx over pendent
state claims (??? not sure how this ends up under Allapattah)
• Zahn [cited in Allapattah]: “Any P w/o jdx amount must be
dismissed fromt he case, even though others allege jurisdictionally
sufficient claims.
a) Common § 1367(b) Carve-Out Situations
(1) P claim against nondiverse third-party D (codifying Owen)
(2) P claim against nondiverse additional D
(3) underamount P claim against third-party D
(4) under-amount P claim against additional D
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III. Removal
A. If a case could originally have been brought in federal court under § 1331 or
§ 1332, it may be removed from state to federal court by the defendant’s
motion under § 1441(b).
1. Requires unanimity amongst all Ds.
2. Exceptions:
a) D claims (counterclaims, etc.) are never sufficient to allow for removal,
even if raising federal question (e.g., Holmes Group)
b) D may not remove in diversity context if state suit was filed in D’s
home state [rational: no out-of-state bias to be remedied by fed
jurisdiction]
B. Time Limits
1. Notice of removal must be filed within 30 days of service or process
or ascertainment of removability and, in any event, no more than one year
after diversity action commences – § 1446(b)
2. 30 day limit for remand motions – § 1447(c)
C. Improper Removal: “All‟s well that ends well” – i.e., judgment sustained so
long as jurisdiction proper at judgment (Grubbs), even where timely remand
motion objecting to removal improperly denied (Caterpillar)
← Caterpillar [Case mistakenly removed from state to fed court, even though
there is not complete diversity of citizenship]: A district court's error in failing to
remand a case improperly removed is not fatal to the ensuing adjudication if
federal jurisdictional requirements are met at the time judgment is entered.
← Grubbs [cited in Caterpillar]: Validity of removal of action can not be raised
for first time on appeal.
←
D. P is master of complaint; thus P’s decision not to plead available federal-law
claims will be respected with limited exceptions.
1. General exceptions:
← Rivet [Notes case]: Exception 1—Congress has “so completely preempted,
or entirely substituted, a federal law cause of action for a state one that plaintiff
cannot avoid removal by declining to plead “necessary federal questions.”
← Anderson [Notes case]: Exception 2—Congress expressly provided for the
removal of particular actions asserting state law claims in state court.
__________________________________________________________________________________________
2. Equitable exceptions (e.g., to removal time limits) can be found by
court where P engages in manipulative conduct to defeat removal
← Tedford [Notes case; P added non-diverse D, then dismissed after time had
run out; original D removed, Ct. denied remand]: P’s manipulation justifies
application of an equitable exception in the form of estoppel.
← Burns [Notes case]: Congress knew when it passed the 1-year bar on
removal that some Ps would attempt to defeat diversity jdx by fraudulently joining
a non-diverse party; Congress recognized and accepted that, in some cases, P can
and will intentionally avoid federal jdx.
E. Federal Court May Remand Once Federal Claims Dismissed
← Carnegie-Mellon [Wrongful termination suit against university; Employee
brought a federal question claim and various other state-based contract and tort
claims all arising out of the same transaction under pendent jurisdiction. Employer
removed under §1441(a). 6 mo. later, Employee was granted leave to amend his
complaint to remove the untenable federal question claim (leaving only the state
claims).]: §1441(c) does not give power to remand in this case. However, the
doctrine of pendent jurisdiction itself entails the court’s jurisdiction to decline
jurisdiction by dismissing the state case, and hence implies the power to remand
the case.
F. Remand Orders ≠ Appealable Under § 1447(d)
← Powerex [Notes case; energy co. price fixing. Filed in CA and removed by
claiming “foreign sovereign status; remand granted, then appealed.]: When a
district court remands a properly removed case because it nonetheless lacks
subject matter jurisdiction, the remand is covered by § 1447(c) and thus shielded
from review by §1447(d).
__________________________________________________________________________________________
IV. Choice of Law/Erie Doctrine
A. Erie Doctrine identifies governing law where state-law claims are brought in
federal court (e.g., under diversity jurisdiction) or where there is conflict
between federal and state law within a case.
B. Easiest Case: Federal statute directly on point
← Stewart [P filed in AL, D moved for transfer under 1404(a) and forum
selection clause that listed NY. AL refused to enforce forum selection]: The federal
policy of having district court judges consider interests Congress has enumerated
in a statute prevails over a state policy disapproving certain means by which venue
might be decided.
C. Hard Cases: 2 doctrinal tracks
1. Track 1: Federal rule directly on point; question is rule’s validity
under REA
a) Need only be sufficiently broad to control; and
b) Must not “abridge, enlarge, or modify any substantive rights”
c) On (b), no Rule has ever been adjudged to do so; rule must only be
“rationally capable of classification” as procedural
← Hanna [OH resident in accident in SC with MA resident. Fed diversity
suit filed in MA; Service proper under Rule 4 but not under MA state rules]: The Erie
doctrine does not apply to rules of procedure pertaining to service of process. The
Federal Rules of Civil Procedure apply irrespective of the source of subject matter
jurisdiction, and irrespective of whether state or federal substantive law applies.
← Shady Grove [summary]:
2. Track #2: No On-Point Federal Statute or Rule (Gasperini)
a) Erie/RDA test
(1) Are rules in conflict outcome-determinative?
Guaranty Trust [Diversity suit; motion for summary judgment
based on state statute of limitations having run]: When there is diversity
jurisdiction, the federal court should use the outcome-determinative test to ensure
that the outcome of the federal court’s application of law would not be different
than the outcome if the state had tried the case. In this case, the federal court
sitting with diversity jurisdiction must follow a state statute of limitations.
(2) More specifically, would applying state law achieve Erie aims of
discouraging forum-shopping and avoiding inequitable administration
of laws?
Hanna: A party would not choose a federal court simply because
Rule 4(d)(1) has an easier method of service. The Erie rule has never been invoked
to void a Federal Rule. This case is differentiated from York and Erie in that they
never dealt with a federal rule conflicting with state law.
__________________________________________________________________________________________
(3) Is state law bound up with state-created rights and obligations,
or is there a countervailing federal interest?
Byrd [summary]: The Erie doctrine does not mandate that state
law be applied in determinations of rights regardless of conflict with federal law
and the Constitution. Under the Erie doctrine, federal courts in diversity must
respect the definitions of rights and obligations created by state law, but state law
cannot alter the essential function of the jury as provided by the 7th Am.
(4) Does state law affect primary decisions about human conduct?
Hanna [summary]: (Harlan, J., concurring) The test for deciding
whether the Erie doctrine applies to a rule of procedure should be a determination
of whether the choice of rule would substantially affect those primary decisions
respecting human conduct which our constitutional system leaves to state
regulation. If so, Erie and the Constitution require that the state rule prevail, even
in the face of a conflicting federal rule. Erie wanted to ensure that there were not
two conflicting systems of law and the creation of substantive state law by federal
courts should be avoided if that creation extends beyond constitutional limits.
(5) Is it possible to accommodate both state and federal interests?
Gasperini [Fed. diversity case; photographer’s lost slides; large
jury award questioned on appeal. State law standard was “abuse of discretion”;
federal standard was “shock the conscious”]: Under Hanna, the application of the
outcome determinative test must be guided by the aims of the Erie Doctrine to
discourage forum shopping and to avoid the inequitable administration of the law.
The review of jury awards is a matter of substantive law since invoking a different
standard would create substantial variations in jgmts.
D. Ascertaining Applicable State Law
1. If state law applies, federal court asks what law state court in state
where federal court sits would apply
← Klaxon [Fed diversity breach of contract; Fed ct applied NY law to add
pre-jmt interest to verdict.]: Erie prohibits federal courts from independent
determination of substantive general law extends to the field of conflict of laws.
The conflict of law rules (i.e., sorta state version of Erie) must conform to those
prevailing in the state in which the federal court sits. Otherwise, the accident of
diversity would disturb the equal protection clause between state courts and
federal courts that sit across the street from each other. This is necessary for
uniformity within states. Uniformity between states is not necessary due to our
federal structure.
2. WWSHCD: On interpretive questions, federal court asks WW state high
court do.
3. Where no on-point decision of state high court, federal court can also
look to lower- court cases in making that prediction.
__________________________________________________________________________________________
4. A federal court must conform to an intervening state-court decision
until final federal appeal is disposed of, even where state high court’s
decision is handed down after the federal district court action is complete.
V. Venue, etc.
A. Venue (28 U.S.C. §§ 1391-1392)
1. Residence
a) Any judicial district where any D resides if all Ds reside in same state.
(1) Individual residence: generally speaking, this is where a person
is domiciled
(2) Corporations: reside anywhere personal jurisdiction can be
established §1391(c)
2. Events or Property
a) “A judicial district in which a substantial part of the events...occurred,
or a substantial part of the property...is situated”
B. Transfer
1. § 1404: alternative venue would be more convenient
a) District court may only transfer to district where suit “might have been
brought”; D can’t waive venue, PJ to win transfer
b) Highly discretionary (e.g., “may”; “in the interests of justice”)
c) Inquiry focuses on whether case’s center of gravity lies elsewhere;
however, P’s choice of forum entitled to some weight
d) § 1404 transfers usually D-initiated or sua sponte (e.g., Republic of
Bolivia)
2. § 1406: venue improper in current district
a) District court decides whether to transfer or dismiss
b) Similar to § 1404, court may transfer only to district where suit “could
have been brought”
c) Transfer may also be used to cure lack of PJ
← Goldlawr [Fed suit in PA, no personal jdx. Ct transferred under 1406(a)
NY where jdx ok. SOL had run and NY dismissed because of original jdx issue.]: The
language of 1406(a) does not forbid a court from transferring a case, even if it
does not have personal jurisdiction. There is a strong interest in providing a forum
for a plaintiff who has shown a desire to commence it, regardless of the
technicalities that may stand in the way of an expeditious and orderly adjudication
of his case.
3. Choice of Law Default Rule: transferee court applies law transferor
court would for § 1404 transfers, but applies law it would apply for § 1406
transfers
__________________________________________________________________________________________
← Van Dusen [Plane crash/wrongful death. Under 1404(a), D suit
transferred to MA where there was a damages cap]: There is nothing in 1404(a) to
justify its use by defendants to defeat the advantages accruing to plaintiffs who
have chosen a forum which, although inconvenient, was a proper venue. Thus,
upon transfer of the action, the transferee court would be obligated to apply the
substantive rule of the transferor state to avoid a significant affect on the outcome
of the case. The change of venue should be just a change of courtrooms and not
substantive law.
←
C. Forum Non Conveniens
1. Permits court to dismiss case more appropriately brought in different
judicial system (at the federal level, forum non conveniens is often invoked
when a case should more appropriately be heard in a different country.)
2. Three-part test:
a) adequate alternative forum; plus balancing of
b) private interest factors; and
c) public interest factors
← Piper [Plane crash in Scottland]: When an alternative forum has
jurisdiction to hear a case and when trial in the chosen forum would establish
oppressiveness and vexation to a defendant out of proportion to the plaintiff’s
convenience, or when the chosen forum is inappropriate because of considerations
affecting the court’s own administrative and legal concerns, the court may in the
exercise of sound discretion dismiss the case by applying the list of private and
public interest factors.
← In a motion to dismiss for forum non conveniens, a court should
consider both private and public interest factors.
← Private factors include the relative ease of access to sources of proof,
availability of compulsory process for the attendance of unwilling witnesses, the
cost of attendance of witnesses, the possibility of viewing the scene if appropriate
to the action, and other practical matters related to making the trial easy,
expeditious, and inexpensive.
← Public factors include administrative difficulties of the courts, interest
in having local controversies adjudicated at home, the interest in having the trial in
a forum that is familiar with the law governing the action, the avoidance of
unnecessary problems in conflict of laws or the application of foreign law, and the
unfairness of burdening citizens in an unrelated forum with jury duty.
3. Change in substantive law does not factor into adequacy unless
alternative forum offers clearly inadequate remedy or “no remedy at all”
(see Piper)
__________________________________________________________________________________________
VI. Pleadings
A. Pleading Purposes: (i) notice to D; (ii) weed out sham claims; (iii) narrow
issues for decision; (iv) guide parties, court in conduct of case; (v) supply
record of judgment for later preclusion purposes
B. Rule 8
1. Rule 8(a): Plaintiffs requirements for a claim
a) “Short and plain” statement of jurisdiction
b) “Short and plain” statement of the claim, and
c) Demand for judgment. (Also allows for relief in the alternative, so the
plaintiff does not have to pre-guess the remedy most likely to be
accepted by the court.)
2. Rule 8(b): defendant’s answer must admit or deny every element of
the plaintiff’s claim
3. Rule 8(c) the defendant’s answer must state any affirmative defenses
C. Complaints—Rule 8(a)
← Conley [referenced in Twombly; original Rule 8 interpretation]: The accepted
rule that a complaint should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.
← Twombly [Sherman Act claim against Bell Atlantic/phone companies alleging
conspiracy to not compete]: Creates a new, stricter standard of a pleading's
required specificity. Where, under Conley, a complaint need only state a
"conceivable" set of facts to support its legal claims, Twombly required
"plausibility.” Meaning, Rule 8 calls for sufficient factual matter, accepted as true,
to “state a claim to relief that is plausible on its face.” A claim has facial
plausibility when the pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.
← Iqbal [post-9/11 detainee alleging conditions of detention were
unconstitutional; suit claimed government officials were architects of
discriminatory policies which gave rise to the conditions of his detention]: Even if
the complaint's well-pleaded facts gave rise to a plausible inference of
unconstitutional discrimination, that inference alone did not entitle P to relief since
the complaint does not contain facts plausibly showing that the governing
policy was based on discriminatory factors. Iqbal indicates that Twombly should
not be limited to its antitrust context. Rule 9(b), which requires particularity
when pleading "fraud or mistake" but allows "other conditions of a person’s mind
[to] be alleged generally," did not require courts to credit a complaint's
conclusory statements without reference to its factual context.
1. Conley-Twiqbal Rule 8 Pleading Standard
a) Required Complaint Elements Under Rule 8: (i) jdx/venue; (ii) plausible
short and plain statement of claim; (iii) demand for relief
__________________________________________________________________________________________
b) Implausibility means P failure to allege facts casting doubt on innocent
inferences, not fanciful nature of factual allegations themselves!
__________________________________________________________________________________________
c) Dismissal Grounds Under Rule 8(a):
(1) Under Conley:
(a) Failure to state valid legal claim even assuming fact
allegations’ truth (e.g., “D really annoys me.”)
(b) Failure to make allegations that meet core elements of
claim (e.g., complaint entirely omits allegations re: damages or
breach)
Sanders [summary]:
(c) Purely conclusory allegations (e.g., “He committed a
tort against me.”)
(d) The facts alleged preclude relief (e.g., facts establish
beyond doubt constitute a winning defense)
(2) Twiqbal’s Innovation: The facts alleged (as distinguished from
conclusions) do not state a plausible claim for relief
d) Beware of factual allegations that (i) defy reality; (ii) concern
mental states; (iii) make grave charges (e.g., against public officials);
(iv) are also consistent with innocent, lawful conduct; or (v) assert claims
with inherently subjective elements (“reasonably”)
e) The Future: Much ado about nothing (Braden)? Congressional repeal?
Even though Twombly and Iqbal proposed a change in the standard for
pleading, Congress has proposed specific acts in recent years that
contradict the Twiqbal holdings. At least a couple recent proposals
reinforce Conley's "no set of facts" test.
f) Other Rules
• Caption, numbered paragraphs, and separate counts if “promote
clarity” – Rule 10(b)
• Note special contexts under Rule 9 (e.g., heightened pleading for
fraud)
• Pleading in the alternative = fine, but only where genuine doubt
about which is factually correct
McCormick [Survivors of car accident victim sue bar which
served victim alcohol before the accident. 2 counts in complaint were alternative
pleadings. D moved for a directed verdict but was denied]: A complaint may
contain inconsistent allegations, even though the proof of one negates any fault on
the foundation of the other.
Church [cited in McCormick]: Alternative pleading is not
permitted when the nature of things the pleader must know which of the
inconsistent averments is true and which is false.
__________________________________________________________________________________________
__________________________________________________________________________________________
D. Answers—Rule 8(b)
1. Short plain statement of defenses, and
2. Admissions or denials (in full or in part), or
3. Statement of lack of knowledge/information
4. Denials must “fairly respond to the substance of the allegation” or
can be deemed admitted and are subject to other possible sanctions
← Rule 8(b)(2):
← Rule 11:
← Fuentes [Drunk driver killed teens; D filed amended answer admitting
liability the day before trial; court allowed P to present evidence as to the nature of
the accident—not just damages]: The introduction of evidence which is material
solely to a matter excluded from a case by an admission is grounds for error.
However, when a party seeks to deprive his opponent of the legitimate force and
effect of material evidence by the bald admission of a probative fact, the
introduction of evidence of admitted facts is permissible. Since the award ($7,500)
could not be said to be an unreasonable amount for the wrongful death of a child
and the verdict does not indicate that the jury was unduly influenced by the errors.
← Zielinski [Forklift accident; previous owners made a general denial but
did not specify mistaken identity issue until appeal]: A defendant who knowingly
makes inaccurate statements may be estopped from denying those statements at
trial. A general denial may be made only when the defendant intends in good faith
to deny all of the plaintiff’s allegations. A denial of only part of the allegations
requires a specific denial of the parts that are denied, and an indication of which
parts are true. Under FRCP 11 there is a requirement of good faith in pleading.
Under FRCP 8(b), a denial must fairly meet the substance of the averments denied.
A party can admit, deny, or plead insufficient information to answer different parts
of a complaint.
E. Defenses—Rule 8(c)
1. Affirmative Defenses
a) Enumerated in Rule 8: accord and satisfaction; arbitration and award;
assumption of risk; contributory negligence; discharge in bankruptcy;
duress; estoppel; failure of consideration; fraud; illegality; injury by
fellow servant; laches; license; payment; release; res judicata; statute of
frauds; statute of limitations; and waiver.
b) Additionally, any other defense or avoidance that is: (i) extrinsic to or
otherwise not embraced by the complaint, with special attention to (ii)
matters or issues that are peculiarly within responding party’s
knowledge and (iii) prejudice, surprise to other party.
← Gomez [Wrongful termination suit against police department; once
rehired, sued again for emotional trauma caused by the initial firing/allegations. D
asserts qualified immunity]: A plaintiff is not required to anticipate in his complaint
a defense that a defendant might raise in order to state a claim for relief.
__________________________________________________________________________________________
← Ingraham [Med-mal; D lost and moved for reduction of damages based
on state statutory cap but was ultimately denied]:Under Rule 8(c) of the Federal
Rules of Civil Procedure, affirmative defenses listed in the rule or “any other matter
constituting an avoidance or affirmative defense” that are not raised in the answer
are waived. The major consideration behind the rule is preventing unfair surprise.
F. Waiver Rules—Rule 12(h); Rule 8(c)

1. Affirmative Defenses must be asserted in Answer or are waived
under Rule 8(c)
2. Personal Jdx, venue, insufficient process, and insufficient service
of process are waived if not raised in answer or pre-answer motion. Rule
12(h).
3. Subject-matter jurisdiction never waived. Rule 12(h).
4. Failure-to-state-claim and failure-to-join-required-party can be raised
later. Rule 12(h).
G. Amendment and Relation Back—Rule 15(a)
1. Pleader may amend as matter of course as provided in Rule 15(a)
a) Complaint relates back (and ducks SOL problem) if new claim arising
out of same conduct against existing party per Rule 15(c)(1)(B), but
not for new claim against new party except in narrow cases of
mistaken identity per Rule 15(c)(1)(C)
← Barcume [discrimination in hiring/promotion practices; proposed
amended complaint adding allegations of hostile workplace and sexual
harassment]: Ct held new claims did NOT arise from old ones since there was no
factual support for the second claims in the original complaint—thus, D had no
notice that πs were pursuing that particular type of discrimination claim and it
would be unfair to Ds in terms of trial preparation. Ct worries if one side has
greater advantage over other – Test: How prejudiced are parties by the amended
pleading?
__________________________________________________________________________________________
←
__________________________________________________________________________________________
H. Dismissals
1. Pre-Answer Motions
a) Never waived—12(h)(3)
b) Lack of subject-matter jurisdiction—12(b)(1)
c) Waived if omitted from pre-answer motion or answer--12(h)(1)
d) Lack of personal jurisdiction—12(b)(2)
e) Improper venue—12(b)(3)
f) Insufficient process—12(b)(4)
g) Insufficient service of process—12(b)(5)
h) Raisable later or at trial—12(h)(2)
i) Failure to state a claim—12(b)(6)
j) Failure to join a required party—12(b)(7)
k) Raisable later (?)
l) Forum non conveniens
2. Post-Answer Motions—12(c):Motion for judgment on the pleadings, but
can’t “delay trial”
3. Voluntary dismissals, dismissals w/ and w/o prejudice—Rule 41
I. Policing Pleadings (Rule 11)

1. Rule 11 ensures that attorney’s practice candor and care by
a) Requiring signed filings, which asserts that the attorney has done a
reasonable investigation and have, in good faith, properly filed
the document.
b) Imposing sanctions on attorney’s who fail to meet these standards
2. Rule 11 Checklist
a) Documents only
b) Filed with the court.
c) Not Discovery (which is addressed separately under Rule 26)
d) Good-faith claims: Non-frivolous, not intended to harass or delay, facts
supported by evidence
e) “Inquiry reasonable under the circumstances”
(i.e., standard of reasonableness may be adjusted depending on time
available for filing such as when SOL approaching, etc.)
__________________________________________________________________________________________
3. Discretionary: judge “may” impose appropriate sanctions under Rule
11(c)(1) (compare to mandatory 1983 version)
4. Core Requirements Under Rule 11(b):
a) Reasonable inquiry
← Kraemer [Future in-laws took all of a woman’s belongings after her
fiancee died; county sheriff assisted with eviction. Ps attorney hired a private
investigator who could not confirm nor discredit Ps claims of conspiracy, but
suggested Ds were hostile and something was definitely fishy]: Rule 11 sanction
for alleged failure to investigate claim prior to suit was unwarranted where
attorney had done everything possible to gather information by hiring a
private investigator and instituted suit only after hostile attitude of potential
defendants made it necessary to use discovery to gather additional information.
Rule 11 should not be used to chill enthusiasm or creativity in pursuit of
truth.
← Mattel [Attorney failed to check date stamped on Barbi doll that
disproved claims of copyright infringement and refused to dismiss after being
shown date stamp]: Court did not abuse its discretion in imposing sanctions
related to attorney’s failure to investigate the status of D’s copyright, but it
did err in considering other instances of misconduct. Under Rule 11, a court may
impose sanctions upon an attorney if it determines that the allegations and
factual contentions in any pleading, motion, or other court submission are not
supported by evidence or with reasonable opportunity to investigate are
not likely to be supported by evidence.
← Business Guides [notes case; request for TRO supported by claim of
10 inaccuracies listings they had fed to competitor; court discovered 9 of 10 were
erroneous claims]: “Signing is no longer a meaningless act; it denotes merit.”
Rule 11 imposed an objective standard of reasonable inquiry on represented
parties who signed papers or pleadings, whether signatures were voluntary or
mandated.
b) No improper purpose
← Saltany [Libyan citizens filed protest suit against the US and UK for
damaged caused by air strikes]: Where there is a violation of Rule 11, there
must be sanctions; the federal courts are not a forum for “protest” suits
that have no merit. Court held that filing the complaint when counsel “surely
knew” that the action had “no hope whatsoever of success” violated Rule 11 and
warranted sanctions
← Whitehead [notes case; after judgment, attorney staged media event
to “collect” from D]: court sanctioned attorney, claiming “shameless self-promotion
and deliberately seeking to embarrass D were improper purposes under Rule 11(b)
(1); Improper purpose need not be linked to the content of the actual
document, but rather the conduct following the filing [i.e., issuance of the
writ].
c) Nonfrivolous legal contentions
__________________________________________________________________________________________
← Saltany: Court also held the appeal from the dismissal of the United
Kingdom as a party was frivolous, warranting the assessment of costs and attorney
fees.
← Frantz [disqualified weightlifters sued US Powerlifting Federation
claiming conspiracy to monopolize the sport]: As long as each claim is supported
and has been investigated and researched before filing, no sanctions.
d) Actual or likely evidentiary support—claim is “well grounded in
fact, legally tenable, and not interposed for any improper purpose”
← Cooter & Gell [lawyers filed an antitrust suit after calling men’s
clothing stores in four cities and determining only one store actually sold D’s
product]: District court could impose Rule 11 sanctions after plaintiff voluntarily
dismissed action; Rule 11 did not authorize award of attorney's fees
incurred on appeal.
• Note also requirement of reasonable “denials” under Rule 11(b)(4)
5. Coverage:
a) 11(b)(2) applies to individual “claims, defenses, and other legal
contentions” (not just pleading as a whole)
← Frantz [disqualified weightlifters]: As long as each claim is
supported and has been investigated and researched before filing, no
sanctions.
b) Also extends to act of “signing, filing, submitting, or later advocating”
paper
6. Limits:
a) No monetary sanctions against represented party for Rule 11(b)(2)
(“legal contentions”) violations
b) Rule 11 inapplicable to discovery under Rule 11(d)
7. Other Key Rules:
a) Objective, Time-of-Filing Test: no “good heart empty head” defense
b) Rule 11 does not require counsel to plead facts; rather, must only
know facts (Frantz)
c) Types, Purpose of Sanctions: under Rule 11(c), sanction can be
monetary or otherwise, as necessary to “deter repetition”
d) Entity Liability: law firm responsible for lawyer misconduct under Rule
11(c)(1)
e) Judge-Initiated Sanctions: judge can sua sponte require party to show
cause to avoid sanctions, see Rule 11(c)(3), but no monetary sanctions
unless initiated pre-termination, see Rule 11(c)(5)
f) Safe Harbor: 21 days to withdraw pleading/paper under Rule 11(c)(2)
__________________________________________________________________________________________
← Cooter [menswear antitrust]: voluntary dismissal doesn’t expunge,
but 11(c)(2) and (c)(3) override except for judge-initiated
__________________________________________________________________________________________
VII. Discovery (Rule 26, et. al.)
A. Five Discovery Hoops
1. Properly requested using discovery tools
2. Relevant
3. Non-privileged
4. Non-work-Product
5. Value proportional to cost
B. Properly requested using discovery tools
1. Rule 26: Mandatory disclosures
2. Rule 30, 32: Depositions
3. Rule 33: Request for Interrogatories
4. Rule 34: Request for Production of Documents
5. Rule 36: Request for Admissions
6. Rule 45: 3rd-party subpoena
C. Relevant
1. Relevant to “any party’s claim or defense” (FRCP 26(b)(1)) – i.e., tend
“to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.” (FRE 401);
← OR
2. “Reasonably calculated to lead to discovery of admissible evidence”
(FRCP 26(b)(1))
← BUT
3. “Any party’s claim or defense” seen by Adv. Comm. as tightening;
discovery relevant only to “subject matter involved in the action”
admissible only with court permission (FRCP 26(b)(1))
D. Non-privileged & Non-work-Product
1. Attorney-Client Privilege Test
a) Communication, not underlying facts
b) From client to layer
c) Outside the presences of others
d) For purpose of seeking legal advice
← Upjohn [Company internally investigating “payment to foreign
governments”]: Corporate control-group test is rejected. Privilege applies to lower-
level corporate employees where “communications concerned matters within
the scope of employees’ corporate duties, and the employees themselves were
__________________________________________________________________________________________
sufficiently aware that they were being questioned in order that the corporation
could obtain legal advice.”
←
2. Work-Product Rule
a) Basic Rule
(1) Document or Tangible thing
(2) Prepared in anticipation of litigation (circuit split....)
(3) By or for party or representative
Hickman [tugboat sunk; attorney pre-emptively interviewed
potential witnesses and opposing side sought interview notes in discovery]:
Oral and written statements or other information obtained in
preparation for possible litigation after a claim has arisen are protected under
work-product. Information prepared or obtained by counsel in preparation for
litigation after a claim has arisen is not protected by the attorney-client privilege
and is not protected from discovery on that basis. Discovery of written materials
obtained or prepared by opposing counsel in preparation for possible litigation may
not be had unless the party seeking discovery can establish that relevant and non-
privileged facts remain hidden in an attorney’s file, and where production of those
facts is essential to the preparation of the party’s case.
The general policy against invading the privacy of an attorney’s
course of preparation is so essential to an orderly working of our system of legal
procedure that a burden rests on the one who would invade that privacy to
establish adequate reasons to justify production through a subpoena or court order.
There must be some showing of necessity or justification by the party seeking its
discovery. If relevant and non-privileged facts remain hidden in an attorney’s file
and the production of those facts is essential to the preparation of a case,
discovery may be made.
Adlman [notes case]: When a party is choosing whether to

engage in an event that is almost certainly going to result in litigation and the
party prepares documents, these documents may be protected under 26(b)(3). The
text of the rule does not only state that the work-product privilege applies to
documents prepared for trial, but it also refers to those prepared in anticipation of
litigation. Documents should be deemed prepared in anticipation of litigation, and
thus within the scope of the rule, if in light of the nature of the document and the
factual situation in the particular case, the document can fairly be said to have
been prepared or obtained because of the prospect of litigation [this is the
“because of” formulation].
b) Can be overcome where (i) substantial need; and (ii) substantial
equivalent cannot be obtained by other means (FRCP 26(b)(3)(A)(ii))
c) Dual purpose work product still covered so long as “because of”
litigation; would not have been created in any event (e.g., Adlman)
__________________________________________________________________________________________
d) Higher level of protection for attorney mental impressions, but still
not absolute (FRCP 26(b)(3)(B)
← Upjohn [internal corporate investigation]: The attorney-client privilege
only protects disclosure of communications. It does not protect disclosure of the
underlying facts by those who communicated with the attorney.
(1) Includes attorney selection of finite set of, inter alia, documents
or witnesses to interview because fact of selection conveys
impressions, strategy
Sporck [notes case]: An attorney's choice of documents qualifies
as protected work “because identification of the documents as a group will reveal
defense counsel's selection process, and thus his mental impressions.
(2) Waiver/Exceptions:
(a) Crime-Fraud Exception
Napster [Notes case]: Piercing attorney-client privilege under
the crime-fraud exception requires satisfaction of a two-part test; 1) party must
show that the client was engaged in or planning a criminal or fraudulent scheme
when it sought the advice of counsel to further the scheme; 2) demonstrate that
the attorney-client communications for which the production is sought are
“sufficiently related to” and were made “in furtherance of the intended, or present,
continuing illegality”
(b) Disclosure
i) Core Rule = voluntary disclosure of particular
communications waives privilege as to those communications
and, if significant amount, possibly similar communications as
well (e.g., In re Keeper)
ii) Court split on waiver for inadvertent disclosure, with some
finding waiver and others applying balancing (precautions
taken, extent of disclosure, time to rectify error, interests of
justice)
Sealed [Notes case]: inadvertence no grounds for relief
from waiver
VS.
KL Group [Notes case]: lower court has discretion to order
return of inadvertently disclosed material
3. Other Rule = Both A/C and W-P extend to grave
← Swidler [notes case]: There are “weighty reasons that counsel in favor
of posthumous application. Clients may be concerned about reputation, civil
liability or possible harm to friends and family. Clients may disclose sensitive
information about personal, family, business matters, etc. that would have impacts
beyond their individual life.
__________________________________________________________________________________________
E. Value proportional to cost—Rule 26(b)(2)(C)
1. On motion or sua sponte, court must limit frequency/extent of
discovery if:
a) Unreasonably cumulative or duplicative, or can be obtained from
some other source that is more convenient, less burdensome, or less
expensive;
b) Party seeking has had ample opportunity to otherwise obtain the
information; or
c) Burden or expense outweighs the 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.
__________________________________________________________________________________________
VIII. Summary Judgement
A. Basic Standard = Pre-trial dismissal appropriate where discovery and any
affidavits, viewed in light most favorable to non-movant, show there is “no
genuine issue as to any material fact” and movant (usually D) is entitled to
judgment as matter of law (FRCP 56(c)(2);
← New Rule 56(a):
← Adickes [Civil rights action alleging police conspiracy; summary judgment
was granted when P could not produce any evidence to support a conspiracy]:
Summary judgment was improper here because the moving party, the Defendant
failed to carry its burden of showing the absence of any genuine issue of fact. In an
action based on conspiracy, summary judgment may not be granted unless the
nonmoving party can show that there is no genuine issue of fact. (Overruled by
Celotex)
← Celotex [asbestos; Celotex moved for summary judgment on the grounds
there was no evidence to prove that V had been exposed to D’s asbestos products.
P produced three documents as evidence, but documents were excluded as
hearsay adn then granted motion for SJ.] A party moving for summary judgment
does not necessarily bear the burden of supplying evidence showing the absence
of a genuine dispute regarding a material fact. The moving party merely bears the
burden of informing the court of the basis for its motion. The moving party may
show the absence of evidence supporting the nonmoving party’s case.
← Summary judgment under Rule 56(c) is proper if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.
← Rule 56(c) mandates the entry of summary judgment against a party who
fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof
at trial.
← There is no express or implied requirement in Rule 56 that the moving party
support its motion with affidavits.
← Whether a showing by a party opposing summary judgment, if reduced to
admissible evidence, would be sufficient to carry that party’s burden of proof at
trial should be determined by the Court of Appeals in the first instance.
__________________________________________________________________________________________
B. Key Concept = interaction of burden of proof and burden of production
Movant’s Initial Burden of Production (to shift Non-Movant’s Burden
burden to non-movant) of Production
Movant Has Movant must produce affirmative evidence Non-movant must produce
Burden of demonstrating no genuine issue of fact (i.e., evidence showing there is a
Proof at “any reasonable jury would find for me”). genuine issue of material fact
Route #1 (Adickes): Movant must produce (“a reasonable jury could find for
evidence negating a claim or defense of non- me”) by:
Non-
movant. • Pointing to new evidence or
Movant Has
evidence movant ignored
Burden of
Route #2 (Celotex): Movant must “point • Rehabilitate evidence
Proof at
out” non-movant’s evidence is wanting on movant attacked or attack
Trial
issue as to which non-movant has burden of movant’s evidence
proof at trial, but must make more than mere • Request time for additional
conclusory assertion to that effect. discovery (Rule 56(f)).
←Notes:
• In either route, movant is arguing that “no reasonable jury can find for non-movant.”
• If movant fails to meet her burden of production, the motion is denied without looking to
non-movant’s proof and the case goes to trial. If non-movant fails to meet her (shifted)
burden of production, the motion is granted. If non-movant meets her burden, there is a
genuine issue of material fact and the motion will be denied.
C. Other Rules:
1. Prospective Admissibility: Evidence advanced to meet non-movant
burden of production must ultimately be admissible in some form or
another (e.g., Hoff as witness to be called in eventual Celotex trial, etc.)
(FRCP 56(e)(1); New FRCP 56(c)(1), (2), (4))
2. Witness Credibility: Some courts categorically deny SJ where
witness credibility at issue, but most preclude SJ only where witness likely
biased or plainly laboring under conflict of interest
3. Partial SMJ: can be sought/entered as to “all or part of the claim,”
including claim elements (damages or liability), or particular facts (e.g.,
FRCP 56(d); New FRCP 56(g))
4. Note new FRCP 56 on Dec. 1, 2010 (but designed to codify Celotex
and progeny on burden of production, prospective admissibility, etc. – e.g.,
New FRCP 56(c)(1)(B), (c)(2), (c)(4))
__________________________________________________________________________________________
IX. Trial and Post-Trial Motion
A. Trial Stages: (i) opening arguments; (ii) presentation of evidence (P then
D); (iii) closing arguments; (iv) jury instructions; (v) jury deliberation, verdict;
(vi) post-trial motions
B. Jury
1. 7th Amendment
a) When do jury rights attach?
(1) Approach #1: Was case tried by jury circa 1791?
(2) Approach #2: (i) Was most similar 18th Century claim tried by
jury? (ii) What remedy is being sought – equitable relief or damages?
b) JMOL—does not violate 7th A.
← Galloway [Mental illness alleged to be caused by military service; no
evidence for 5-8 year span of time between key incidents. JMOL granted for D,
citing P’s lack of sufficient evidence]: Directed verdicts do not deprive litigants of
their Seventh Amendment constitutional right to a jury trial.
← The Seventh Amendment of the United States Constitution
(Constitution) had no application in this case to begin with because it was for a
monetary claim against the Government, which historically did not go to a jury.
More importantly, the directed verdict practice was valid because of prior
precedent and its presence in the FRCP.
← History and precedent support the conclusion that the Seventh
Amendment of the Constitution was designed to preserve a jury trial in instances
of the most fundamental elements. Here, Speculation cannot substitute for
probative facts. The P’s inability to meet the burden of proof, as per the governing
statute, left his claim vague and incomplete and therefore, properly subjected to a
directed verdict.
←
← Redman [coin collection stolen, sued safe manufacture; jury award
overturned]: P failed to present evidence demonstrating that the safe violated
industry standards, government standards, or reasonable consumer expectations.
←
2. Verdicts:
a) Types = general, special, general with interrogatories
← FRCP 49 (b)
b) Choice of verdict type is discretionary on judge’s part
← FRCP 49(a) (“may”)
← Skidmore [notes case, p. 776]: special verdict is discretionary. See p.
777 for ensuing policy discussion/tirade
←
__________________________________________________________________________________________
c) Jury Inconsistencies:
(1) In interpreting non-general jury verdicts, courts should attempt
to harmonize jury’s contradictory special verdict or interrogatory
responses, and also contradictory general verdict and interrogatories
FRCP 49(b)
Gallicks [bug bites from standing water near RR]: Where there is
conflict between special verdict interrogatories or general verdict, jury is given
benefit of doubt, and it is the duty of courts to harmonize the verdict.
On apparently fatal inconsistency among the jury’s findings, it is
the duty of the courts to attempt to harmonize the answers, if it possible under a
fair reading of them. “Where there is a view of the case that makes the jury’s
answers to special interrogatories consistent, they must be resolved that way.”
(2) Where harmonization impossible, judge may have jury
deliberate further or order new trial; if conflict between general
verdict and responses, judge may also enter judgment
notwithstanding verdict
FRCP 49(b)
C. (Renewed) Motions for JMOL [FRCP 50(a), (b)]
1. JMOL Motion Requirements: (i) prior to jury submission; (ii) non-
movant has have been fully heard on issue
← FRCP 50(a)
2. Typical JMOL Timing = D moves after P evidence presentation; P&D
move after evidence closes
3. Renewed JMOL Motion Requirements: (i) party previously filed JMOL
motion; (ii) within 28 days of judgment entry
4. Standard for (Renewed) JMOLs = broadly similar to SJ standard:
a) “no legally sufficient evidentiary basis to find for that party on that
issue”
FRCP 50(a)
Reeves [Age discrimination case]:"[a] plaintiff's prima facie case
of discrimination, combined with sufficient evidence for a reasonable factfinder to
reject the employer's nondiscriminatory explanation for its decision, may be
adequate to sustain a finding of liability for intentional discrimination under the
ADEA." Thus, an employer is liable to a former employee under the Age
Discrimination in Employment Act of 1967 if a reasonable jury can find that the
employer's explanation for the employee's dismissal was pretext for discrimination.
__________________________________________________________________________________________
(1) Viewing all record evidence in light most favorable to non-
movant, and drawing inferences in her favor, reasonable jury could
not find for non-movant
Boeing [Employment case; diversity action]: On motions for
directed verdict and for judgment notwithstanding verdict, court should consider
all of the evidence—not just that evidence which supports nonmover's case—but in
light and with all reasonable inferences most favorable to party opposed to motion
and motion should be granted if facts and inferences point so strongly in favor of
one party that court believes that reasonable men could not arrive at contrary
verdict.
(2) Judge may not weigh credibility, but may credit witness
testimony absent evident bias
Karnes [traffic stop, unreasonable search alleged—‘leaves all
over the car’; Ct entered judgment for D on grounds of qualified immunity and P
appealed]: Fact issues existed and precluded grant of judgment as a matter of law
on issues underlying qualified immunity defense. Where there is a genuine issue of
fact underlying and issue of law, JMOL is unjustified.
5. Appellate Review Standard = de novo (i.e., appeals court uses same
standard district court did)
6. JMOL Rarely Granted: district judges prefer to reserve JMOL issue,
grant renewed motion for JMOL, for efficiency reasons
D. Motions for New Trial (FRCP 59)
1. Sole Motion Requirement = within 28 days of entry of judgment
2. Standard Applied Depends on Asserted Error Type:
a) Process: un-curable prejudicial (not harmless) error
← Sanders-El [excessive force charge against police; P drop lengthy
computer printout in front of jury while questioning about prior convictions]:
Whether errors had significant prejudicial influence on jury in particular case is fine
question of judgment as what may be harmless in case which strongly favors one
party may be fatally prejudicial in close case.
b) Outcome: “against the weight of the evidence”
3. Appellate Review Standard = strong abuse of discretion (compare to
JMOL’s de novo)
• But see note on non-appealability, infra (e.g., Allied Chemical)
4. Other = remittitur comes from conditional grant of Rule 59 motion
(i.e., “take lower damages or retrial”)
__________________________________________________________________________________________
E. Rule 50/59 Complementarity, Appeal Scenarios:
1. Under 59(c), judge granting renewed JMOL motion must also
conditionally rule on new trial motion, if any
2. Result is four total appellate scenarios:
a) Renewed JMOL motion granted, new trial motion conditionally denied:
verdict winner may appeal; appellee may contest new trial denial in case
of appellate reversal of JMOL; appeals court may affirm JMOL, reverse
JMOL and reinstate verdict, or order new trial
← FRCP 50(c)(2)
b) Renewed JMOL motion granted, new trial motion conditionally
granted: verdict winner may appeal; new trial usually proceeds if JMOL
reversed, “unless the appellate court orders otherwise”
← FRCP 50(c)(2)
c) Renewed JMOL motion denied, new trial motion granted: no final
judgment, so no immediate appeal; new trial proceeds
← Allied Chemical [summary]: (1) Only exceptional circumstances
amounting to a judicial usurpation of power would justify invocation of mandamus;
(2) because of the ability to challenge the grant of new trial on a direct appeal
after final judgment, it cannot be said that litigant has no other adequate means to
seek the relief desired; (3) authority to grant a new trial was confided almost
entirely to exercise of discretion on part of the trial court; and (4) where matter is
committed to discretion, it cannot be said that a litigant's right to particular result
is clear and undisputable.
d) Both motions denied: movant may appeal; appellee may contest new
trial denial in case of appellate reversal of JMOL; appeals court may
order either JMOL or new trial
← FRCP 50(e):
__________________________________________________________________________________________
X. Repose/Preclusion
A. Preclusion Policy Rationales: (i) efficiency; (ii) repose/certainty; (iii)
avoidance of inconsistent results
B. Claim Preclusion/Res Judicata:
1. Basic Rule = A valid, final judgment on the merits precludes re-
litigation of the same claim between the same parties
2. Five Moving Parts:
a) Valid Judgment:
(1) Change in law after final judgment does not undermine validity
for res judicata purposes
Moitie [notes case]: A final judgment on the merits of an action
precludes the parties or their privies from re-litigating issues that were or could
have been raised in that action. Res judicata consequences of a final, unappealed
judgment on the merits are not altered by the fact that he judgment may have
been wrong or rested on a legal principle subsequently overruled in another case.
There is no general equitable doctrine which countenances an exception to the
finality of a party’s failure to appeal merely because his rights are “closely
interwoven” with those of another party who successfully appeals. Doctrine of res
judicata is not a mere matter of practice or procedure inherited from a more
technical time; it is a rule of fundamental and substantial justice, of public policy
and private peace, which should be cordially regarded and enforced by the courts.
Baltimore Steamship [notes case]: Judgment, voidable as
based on erroneous view of law, cannot be collaterally attacked. Effect of judgment
as res judicata is same, whether or not it rests on error of law.
(2) Collateral Attacks on Jdx:
(a) Rule #1 (PJ): No preclusion where first court lacked PJ; but
this generally means D took default judgment, since the first
court’s finding that PJ was proper will itself have preclusive effect
in subsequent suit
(b) Rule #2 (SMJ): No preclusion, but possible exception where
“arguable basis” for SMJ in first court
Baella-Silva [Attorney filed state court action against successor
counsel to recover portion of attorney fees following settlement of client's claims.]:
District court's express or implicit determination that it has subject matter
jurisdiction over dispute is open to direct review, but it is res judicata when
collaterally attacked.
Plaintiff could not collaterally attack settlement judgment on
ground that district court lacked subject matter jurisdiction; finding that plaintiff
breached confidentiality clause of settlement agreement was not clearly
erroneous; and imposition of monetary sanction was not abuse of discretion.
__________________________________________________________________________________________
b) Final Judgment:
(1) Final: judgment entered ending case (e.g., entry of judgment on
jury verdict; grant of 12(b)(6) motion, JMOL, default judgment)
(2) Not Final: partial SJ, preliminary injunction, case pending appeal
(CA and other minority state courts only)
c) On the Merits:
(1) Excludes: dismissal for lack of jdx, venue, failure to join
indispensable party
FRCP 41(a)
(2) Includes: most other dismissals (e.g., 12(b)(6) dismissal for
failure to state claim, SJ, JMOL), unless court specifies otherwise
FRCP 41(b)
d) Same Claim:
(1) Transactional test: claim (i) arises out of same T/O; and (ii) was or
could have been brought in prior proceeding
McConnell [Husband and wife’s medical claims from accident
split]: Louisiana court judgment dismissing with prejudice husband's suit for
medical expenses paid for treatment of wife who had been injured in same
accident with husband was, after time for any appeal had elapsed, both final and
definitive, and carried the force of res judicata barring husband's suit in federal
court for his own injuries and medical expenses.
Restatement § 24:
(2) Note special rules for:
(a) Compulsory counterclaims
FRCP 13
Restatement § 22
Martino [Franchise non-compete Mc-D; finances his Burger
Chef for his son; settled by having McDonald’s buy back the franchise. Then
Martino sued McDonald’s, claiming franchise agreement violated antitrust act.
McDonald’s argued that this claim should be barred either because it was a
compulsory counterclaim under Rule 13(a), or because it is barred by the doctrine
of claim preclusion.]: Once a judgment has been rendered on a claim, all possible
issues related to that claim are considered settled even if they weren’t brought up
in the first suit.
Res judicata bars a claim where its prosecution would
nullify rights established by the prior action (preserving integrity of judgment)
(b) Installment contracts
(c) Situation in which particular remedies unavailable in first
forum
__________________________________________________________________________________________
Nestor [notes case; Title VII suit filed after State EEOC hearing;
D attempted to estopp under res judicata]: Ct recognizes an exception to res
judicata ‘for later actions that assert claims or seek relief that could not have been
pressed or recovered in the prior proceeding.
Restatement § 26(1)(c))
e) Same Parties: Absolute rule; no real exceptions, save successors-in-
interest and certain privity relationships (e.g., trustee-beneficiary)
← Consumers Union [notes case?]: Doctrine of collateral estoppel binds
parties to a previous suit to such determinations of material issues as are
encompassed in the judgment; however, such doctrine only rarely precludes non-
parties from litigating the same issues afresh.
C. Issue Preclusion/Collateral Estoppel:
1. Basic Rule = When an issue of fact or law is actually litigated and
determined by a valid and final judgment, and the determination is
essential to the judgment, the determination is conclusive in a subsequent
action between the parties
2. Five Moving Parts:
a) Issue of Fact/Law: Strict rule – issue must be identical in both actions
b) Actually Litigated and Determined:
(1) Basic requirement = issue was subjected to full adversarial
testing
Allen [Evidence excluded under 4th Am. in criminal trial; attempt
to keep it out of ensuing civil rights action against officers who conducted the
search]: Collateral estoppel does not apply where the party against whom an
earlier court decision is asserted did not have a full and fair opportunity to litigate
the claim or issue decided by the first court.
(2) Excludes consent judgments, default judgments, discovery
admissions, pretrial stipulations
(3) Potential problems:
(a) inscrutability of prior judgment, alternative grounds for
judgment (e.g., general jury verdicts);
(b) low stakes, other problems in prior action prevented full
adversarial testing
c) Valid and Final Judgment: Same as for claim preclusion. But note that
intervening change in law can preclude collateral estoppel
← Sunnen [summary]: Doctrine of collateral estoppel does not bar a later
claim if there has been an intervening change in the law. Where a second action
between same parties is upon a different cause or demand, judgment in prior
action operates as an estoppel only as to those matters in issue or points
controverted, upon determination of which the finding or verdict was rendered.
__________________________________________________________________________________________
← Restatement § 28(2)(b)
d) Essential to the Judgment: See above on inscrutability/alternative
grounds
__________________________________________________________________________________________
e) Between the Parties:
(1) Mutuality: Some state courts (e.g., AL, FL, GA, KS, LA, MS, ND,
VA, according to recent study) still require mutuality – i.e., same-party
rule akin to res judicata context
(2) Non-Mutuality: Federal courts and most state courts have
relaxed mutuality, but DP prevents a stranger to a prior action from
being estopped from litigating an issue in a subsequent action
Parklane [1979]: Offensive use of collateral estoppel occurs when
plaintiff seeks to foreclose defendant from litigating an issue the defendant
previously litigated unsuccessfully as an action with another party, whereas
defensive use occurs when defendant seeks to prevent plaintiff from asserting a
claim plaintiff previously litigated and lost against another defendant
It is a violation of due process for a judgment to be binding on a
litigant who was not a party nor privy and therefor has never had an opportunity to
be heard.
Mutuality doctrine, under which neither party could use a prior
judgment against the other unless both parties were bound by the same judgment,
no longer applies.
Offensive use of collateral estoppel does not promote judicial
economy in the same manner that it is promoted by defensive use, and offensive
use may also be unfair to defendant in various ways: the general rule should be
that in cases where a plaintiff could easily have joined in the earlier action or
where the application of offensive estoppel would be unfair to defendant, a trial
judge in the exercise of his discretion should not allow the use of offensive
collateral estoppel.
Collateral estoppel does not involve the ‘re-examination’ of any
fact decided by a jury; on the contrary, the whole premise of collateral estoppel is
that once an issue has been resolved in a prior proceeding, there is no further fact-
finding function to be performed.
__________________________________________________________________________________________
(a) Two basic types:
i) Defensive Non-Mutual Collateral Estoppel (DNMCE): Federal
courts (and most state courts that have relaxed mutuality)
allow assertion of DNMCE
Blonder-Tongue [Patent invalidated in first action action;
against second D attempts to invoke DNMCE]: The relitigation of the same issue,
even among separate parties, wastes everyone’s resources. Due process requires
that a party who did not “have his day in court” may not be estopped from
bringing evidence on an issue in a second action. Also, a plaintiff may not use
collateral estoppel as an offensive weapon against a defendant who has already
lost. However, a plaintiff who already has lost, though given a fair opportunity
“procedurally, substantively, and evidentially to pursue his claim the first time” is
collaterally estopped from litigating the same claim against a different defendant
in a new forum. Thus, the defendant may plead collateral estoppel even though he
had no relation to the parties in the first action. However, the plaintiff may
overcome the defense with an adequate showing that he was deprived of a fair
opportunity in the first trial due to lack of witnesses, or crucial evidence.
ii) Offensive Non-Mutual Collateral Estoppel (ONMCE): federal

courts (and some state courts that have relaxed mutuality)
allow assertion of ONMCE except where (i) plaintiff could have
joined action (i.e., is “wait-and-see” plaintiff); and (ii) estoppel
would be unfair to D
Parklane [see above]
(1) Unfairness factors include:
(a) Suit #1 forum lacked procedures or had other
limitations
(b) issue received less than full adversarial attention in
Suit #1 (e.g., relatively smaller claim size in Suit #1,
counsel incompetence)
(c) new evidence has become available since Suit #1
(d) differences/changes in applicable law between Suit
#1 and Suit #2
(e) future litigation not foreseeable at time of Suit #1
D. Other Preclusion Rules:
1. Erie: Res judicata rules are substantive for Erie purposes
2. Mechanics: res judicata, collateral estoppel must be raised as
affirmative defense or waived FRCP 8(c)
__________________________________________________________________________________________

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I. Notice & Opportunity to Be Heard

3. Constitutionally Adequate Service

C. Challenging Sufficiency of Due Process

b) Constitutional Analysis (Minimum Contacts + Fairness Factors)

(2) Harder Cases = Foreign, Nonresident D (individual or corp)

Substantial Continuous 3: General Jurisdiction

Continuous and 1: Specific Jurisdiction 4: No Jurisdiction (Shoe)

Isolated and Irregular 2: Specific Jurisdiction 5: No Jurisdiction

No Contacts No Jurisdiction No Jurisdiction

Shoe [Multiple employees in WA, but no sales, offices, or other

Helicopteros [Columbian co purchased helicopters from TX and

Wold Wide VW [Car purchased in NY; accident in OK]: So as not

Shaffer [Shareholders suing company officers; attaching

Burnham ["Tag" Jurisdiction - Husband served while visiting

Burger King [Franchisees challenge contacts based on

Shute [Carnival Cruise Lines and enforceability of forum-

Zippo [Dispute over trademark dilution between lighter co. and

6. § 1367(b) carve-out does *not* apply to under-amount claims of Ps

F. Waiver Rules—Rule 12(h); Rule 8(c)

I. Policing Pleadings (Rule 11)

Adlman [notes case]: When a party is choosing whether to

ii) Offensive Non-Mutual Collateral Estoppel (ONMCE): federal

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6. § 1367(b) carve-out does not apply to under-amount claims of Ps