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Civ Pro Outline- Condensed checklist format For each claim, go through the following process: List the

e claims Is there personal jurisdiction? Traditional Basis Domicile (Milliken) Presence (Burnham) Agent (Kane) Consent Expess (Carnival) Implied (Hess) Waiver (Saenger, 12(b)(1) + 12(g)) Objections Special appearance State (Koplin) Federal (12(b)(2) Appealability Ignore suit + collateral attack (Glannon p. 53 for possible scenarios) Does the long arm statute authorize PJ? Enumerated Act Long-Arm Statutes Must be specific PJ Bulge Area (Gray) Coextensive long-arm statutes Interpret specific categories as liberally as DPC allows Federal Courts: FRCP 4k Look to states LA Bulge rule Authorized by federal statute FQ case AND no state would have PJ AND it wouldnt violate the Const. Is this authorization constitutional? When to ask If in personnam or in rem (Shaffer extends Int Shoe) Minimum Contacts Test (does auth violate the DPC?) Time: Time when D acted, not time of lawsuit Specific or General (International Shoe) General Systematic and continuous (Perkins) Not unilateral activity of a third-party (Helicopteros) Maybe just corporations (Burnam) Policy: forum shopping

Specific General rules/ scenarios Purposeful availment, no unilateral contacts (Hanson) Harmful act outside state causes harm w/in (Calder) Single act/ breach of K (McGee) Continuous but limited/ franchise (Burger King) Stream of commerce analysis Ongoing flow of Ds goods into forum state through a distributor or final manufacturer Stream of Commerce + aim (Asahi plurality) Forseeability (Asahi dissent) Manufacturer deliberately cultivates in-state market (WWVW) Internet Sliding scale (Zippo) Modified Zippo/ no zippo/ expanded Zippo (Snowny) Domestic dispute/ minor activity insuff. (Kulko) Traps Better ops elsewhere irrelevant (Hustler) Unilateral activities of third party irrelevant (Hanson, WWVW) Fair play and substantial justice PJ presumptively reasonable once minimum contacts established, burden on D to prove FP&SJ prob (Burger King) Primary concern: Extent of inconvenience to D forced to defend away from home (Asahi) Soft factors: Convenient forum for P, interest of states in enforcing substantive law/ policy, interest of forum state in providing redress to its cits (Hustler, Asahi) Is there subject matter jurisdiction? Federal Question Jurisdiction Note Constitutional Basis (Art. III.2) Statutory Basis (28 U.S.C. 1331), more narrowly interpreted Exclusive State cause of action/ avoidance (Luckett) Types Securities-law Class actions Bankruptcy Patent Actions against foreign consuls and vice consuls Actions to recover fine, penalty or forfeiture under fed law Actions involving certain seizures Analysis 1. Federal ingredient approach (Osborn), now rejected

2. Well-Pleaded Complaint Rule determines what to info to look at when deciding if it arises under federal law. Did P have to raise fed issue in a complaint which includes the leements she needs to prove to establish her claim and only those elements? (Mottley) Only Ps claims matter (Vornado) Declaratory judgments (Skelly Oil) No artful pleading (Betchel) 3. Does the claim arise under federal law? Federal cause of action Arising under: Holmes creation test (American Well Works) ALSO need Federal-law created private cause of action Assume not intended unless express Implied if 4 factors met (Ash) Constitution can provide (Bivens) Exception: fact intensive, swing on local meaning, rules (Shoshone) State Cause of Action Arising under: Holmes creation test (American Well Works) Exception: In order to establish a state law claim, P must prove a proposition of federal law (Smith v. Kansas City) Embedded federal question must be sufficiently substantial No: Merrell Dow, no private cause of action intended for FDCA violations Yes: Grable & Sons, (necessarily raise, actually disputed and substantial, division of powers) No: Empire Health Choice: Narrows Grable to signif future impact pure legal question and federal agency (not 2 private parties or factual issues) Supplemental Jurisdiction- Federal Question. 1367(a)(c) 1. Constitutional Authority CNOF for jurisdictionally insufficient and sufficient claims (Gibbs) 2. Statutory authority Required for jurisdictionally improper pendant and ancillary claims (Aldinger, Kroger, Finley) 1367(a) Codifies Gibbs CNOF, including joinder 1367(c) Discretionary factors (Codifies Gibbs) New state law issue, state predomination, orig jur issues dismissed, other compelling reasons 1367(d) Statute of Limitations Diversity Jurisdiction Constitutional Basis: Art. III.2 Statutory Basis: 28 USC 1332

Diversity of parties (1332(a)) Basics Time: Citizenship at the time the complaint was filed is relevant. Complete diversity required (Strawbridge) Parties Individuals Domicile = physically move w/ intent to remain indefinitely (Mas) Aliens = citizens of their state of residence Corporations: 1332(c) 2 citizenships: states of (1) incorporation and (2)principal place of bus PPB: (1) Nerve Center (Egan), (2) Operating assets, (3) Total activity test (Teal) Conflict btw headquarters and daily activity daily activity Insurance Companies: also cit of insureds state (1332 (c)) Unincorporated Associations cit of every state in which one of its members is a citizen Representative Actions (Class actions, derivative suits, etc) Look to representative, not represented party, unless minors, estates, incompetents. 1332 (c) Controls on Gamesmanship Only real parties matter; cant just bring in to destroy diversity (Rose) Cant just bring in to create diversity (Kramer) AIC Requirement Statutory requirement: 1332 (a): must exceed 75k, exclusive of interests and costs Test: To reject, (1) legal certainty that claim is really for less than jurisdictional amount, and (2) P must have op to show good faith (A.F.A. Tours) Damages: Regular + Punitive included. Injunctions tricky. Aggregation rules Single P, Single D, can aggregate everything (Everett) Single P, Multiple Ds, cant aggregate, cant bootstrap Multiple Ps, Single D. Separate and distinct claims: cant aggregate Single title or right, with a common and undivided interest: can aggregate (Durant One meets AIC req and the other doesnt: Can use supplemental jurisdiction to bootstrap if same case or controversy. (Exxon Mobil, reverses Zahn) *Do a supplemental jurisdiction analysis in this case. Exceptions Domestic relations cases involve only divorce, alimony, child custody (Ankenbrandt) Probate (Estate planning, no SMJ). (Marshall)

Supplemental Jurisdiction in Diversity Cases (1367) (1) Constitutional Authority CNOF for jurisdictionally insufficient and sufficient claims (Gibbs) (2) Statutory authority Required for jurisdictionally improper pendant and ancillary claims (Aldinger, Kroger, Finley) 1367 (a) Codifies Gibbs CNOF, including joinder 1367 (b) limits to prevent gamesmanship in diversity jurisdiction No supplemental juris over claims against persons made parties under: FRCP 14, 19, 20 or 24 Applies only to claims by Ps (or Ps joined under 19 or 24) Typically okay if claims = P1 v. D1, or D1 v. third party Typically problematic if claims = P1 against parties added to the suit, or by Ps who come in through joinder. Rule 14: Third party practice Rule 19: Compulsory joiner Rule 20: Permissive joinder Rule 24: Intervention 1367(c) Discretionary factors (Codifies Gibbs) New state law issue, state predomination, orig jur issues dismissed, other compelling reasons 1367(d) Statute of Limitations Class actions, see separate section. Removal, Venue, Transfer of Venue, Forum Non Conveniens, Waiver Removal Rationale: same protections to D Statutory basis: 28 USC 1441 Rules 1. Only an original D can remove (28 USC 1441(a)) P cant remove based on Ds counterclaim (Shamrock) Third-party D cant remove (First National Bank of Pulaski) Multiple Ds: all must agree to remove (Chicago, R.I. & P.Ry. Co.) 1441(a) Defendants 2. Action could originally have been filed in the fed court (28 USC 1441(a)) Federal court must have SMJ Doesnt matter if orig state court didnt (28 USC 1441(f)) Action could originally have been brought in fed court 1367 applies in removal (Intl College of Surgeons) 3. Citizenship and its effect (28 USC 1441(b)) Federal question: D can remove regardless of his citizenship Diversity

Single D: cant remove if cit of state where action was brought Multiple Ds: None can be cit of state where action was brought Interstate class action exception (min diversity and $5mil), removable w/o regard for whether Ds are from forum state and w/o need for consent of all Ds. (CAFA) Joinder Case removed as a whole, subject to fed discretion (Gibbs) 1441(c) Joinder Removal together 4. Only remove to fed dist court in the same district originally filed, even if this wouldnt have originally be the proper venue. 28 USC 1441(b) Mechanics Filing: 1446(a) Uncertainty: can allege unknown to demonstrate grounds (1446(a)) Multiple Ds, some not yet served only Ds actually served need to join in removal 1446(b) D can move for remand after joinded if dont like removal. 28 USC 1448, Hutchins Timing: 30 days w/in receipt/ amend, diversity only w/in one year of commencement of action. 1446(b) Notice to state court: 1446(d), 1447(c) State court post-removal: freezes 1447(c) Challenging removal and waiver 1447(c) SMJ basis anytime Other basis w/in 30 days of filing of notice of removal. Challenging PJ after removal: fine. Removal isnt a waiver of objection. Venue Purpose: convenience of parties, judicial economy. Statutory question. Federal venue provision: 28 USC 1391 Diversity cases (a) (1) All Ds reside in same state district where any D resides (2) Dist where substantial part of events/oms giving riseclaim ocd (3) Default: only if the other 2 wont work: district where any D is subject to PJ at the time the action is commenced. Federal question cases (b) (juris not founded solely on diversity) (1) All Ds reside in same state district where any D resides (2) Dist where substantial part of events/oms giving riseclaim ocd (3) Default: District where any D may be found Meaning of reside under (a)(1) and (b)(1) Individuals: domicile in district (not state) Corporations: 1391(c) (1) Traditional domicile in each district (incorp/ PPB) (2) Minimum Contacts analysis/ PJ analysis for each district General PJ may apply where no PPB

(3) Default: district w/ most significant contacts Unincorporated Associations: treat like corps for venue (Denver) Meaning of substantial under (a)(2) and (b)(2) Broad interpretation Trademark decision to market + district where sold (Pilates) Products Liability manufactured + cause injury Debt debtor resides where receive collection notice (Bates) Meaning of found under (b)(3) Individuals: Prob. Service of process Corporations: prob anywhere subject to PJ Exceptions Patent and copyright cases (28 USC 1400) Patent infringement cases: 28 USC 1400b Interpleader actions and actions against fed officials Local actions (interest in land) Consent Waiver: 12(h)(1)- must file objection or its waived [even if original venue improper: 1406(b)] Forum selection clauses: generally upheld if fair (Carnival Cruise) Removal and Venue 1391 only applies to cases commenced in fed court, not state removal. Transfer of Venue Basics: from one fed ct another, either party can initiate 2 scenarios (1) Original venue choice was proper. 28 USC 1404(a) (1)For convenience or parties, wits, in interest of justice (fact dep) (2) Transferee court must = court where action might have been brought Burden of proof: on party initiating the transfer (2) Original venue choice was improper. 28 USC 1406 Court may (1) dismiss or (2) transfer to district where case might have been brought, prefer transfer OK if transferor court lacks PJ (Goldlawr), but potential for SoL gamesmanship (Ferens) Meaning of might have been brought : cant agree to transf to improp (Hoffman) Choice of Law and Transfer Only applies to 1404(a) transfers where original venue was proper Rule: choice of law rules follow w/ the transfer (Van Dusen) Gamesmanship: Ferens Forum Non Conveniens

What: Common law doctrine, can dismiss when SMJ, PJ, venue valid but crappy, useful when state court isnt working since st courts cant transfer to other state courts or to foreign courts. Factors to consider w/r/t motion based on principle of forum non (Gilbert) (1) Is there another sufficient open forum? (2) Balancing test: Private interest of litigant v. factors of public interest Less favorable substantive law in another forum isnt enough to defeat (Piper) Insufficient alternative forum will defeat (Nemariam) Default forum = Ps choice (Piper) Standard on appeal: abuse of discretion (Piper) Choice of law: can be compelling reason for dismissal Sweetening the pot (Piper) Ps ties to forum: greater ties = greater inconvenience to P to move (Wiwa) Nationality: less likely to award f.n.c. for Amreicans than for foreigners PJ: District court can respond to forum non plea before addressing other threshold objections such as PJ. (Sinochem) Choice of Law: Evolution Rules of Decision Act (laws of the several states except) Swift and the potential for gamesmanship (natural law view) Erie: Repudiates Swift. Laws of the several states include common law. What is the state law? Older trend: Follow existing state precedent, even if its a district court (Fidelity) no predictions w/r/t future changes (West) Modern trend: More flexibility Predict how state supreme court would decide if no decision (Bosch) Certification st supreme court, but expensive Generally follow supervisory federal courts predictions on state law Gamesmanship: file in fed court if want law to change, it might but hasnt yet, b/c they can anticipate change, st. court bound by stare decisis. Which state law should the court apply? (Vertical uniformity, horizontal chaos) Different state tests: Interest analysis: consider interest of each affected state in aping own law Most significant relationship: expectations, policy interests, uniformity Many others exist Federal test for choosing state law: Apply forum states choice of law rules in a federal diversity case. Klaxon, applying policy underlying Erie. Gamesmanship: forum shop btw fed courts in dif states/ st courts in dif sts Transfer of venue Federal 1404 transfer (1) use orig courts choice of law rules, (2) determine what state substantive law would be under Erie, apply it. Van Dusen

Op for gamesmanship State One state CANT transfer to another state court. Choosing between federal and state law Evolution State law must be applied when its a substantial right. Dunlap Outcome-determinative test: signif affects the result of litigation, follow the state rule. SoL state when o.d. York Outcome-determinative test + any countervailing federal policies that arise from a fed courts status as an indep judicial system. Byrd but state procedural rules can still sometimes supercede FRCPs Hanna rescues the FRCPs Facts: service of process o-d Hanna part 2: When: FRCP or FRAP or statute in the picture (1) Is it valid? Authority Art.III Necessary and Proper Clause authorizes adoption of federal rules of procedure REA. Congress and the Court have power under the REA to promulgate any rule that is (1) arguably procedural and (2) Doesnt abridge, enlarge, or modify a substantive right. Test (a) arguably procedural (Hanna, Sibbach) (b) Does it abridge, enlarge or modify a substantive right? Not necess to det for fed statutes- dont fall under REA FRCPs rarely violate, heavy presumption of validity Would have to affect Ds primary behavior. (2) Is it applicable Issue: Direct collision btw Fed rule and state law? Test: Is the FRCPs scope sufficiently broad to cover the issue? FRCP 8(c) exception: glannon 222, q2 [construed narrowly] (3) Outcome Yes to (1) and (2) go w/ FRAP, FRCP, or statute No to any do Erie part 1 analysis (4) Outcome = follow fed law, mention what York outcome would be Hanna Part 1 (Erie test) When: Analyze choice btw uncodified fed judicial practice & state law (1) Modified outcome-determinative test, using Erie twin aims (a) prevent forum shopping, (b) prevent inequitable administration of laws i.a.: fed approach would open up a sig diff. in litigation opportunity, viewed prospectively (Hanna)

Exists where allow suit to go forward in fed that would be barred in state court (Walker) (2) Mention Hanna concurrence (stricter test): Would difference affect primary conduct? (3) York analysis: Compare how York o-d would have turned out. (4) Byrd test: If state law wins, should a countervailing fed interest (status as indep judicial system) make fed law trump anyway? Joinder of Claims and Parties Joinder of Parties FRCP 19 compulsory joinder Is the absent party a required party under FRCP 19(a)? In that persons absence, court cant accord complete relief (1)(A) That person claims an interest in the action, and disposing of the action in the persons absence may: (1)(B) (i) Impair or impede the other persons ability to protect that interest. Haas (stock) (ii) Leave an existing party subject to a substantial risk of incurring double, multiple, otherwise inconsistent obligs b/c of the interest. If the absent party should be joined, can he/she be joined? SMJ? 28 USC 1367(b) lists FRCP 19- this could destroy diversity PJ? FRCP4(k)(1)(b) bulge rule comes in handy- can get PJ when otherwise couldnt in fed court if its a compulsory joinder Venue? FRCP 19(a)(3) and objections improper If the absent party should be joined and cant be, what happens? 3 options: Let the case go on w/o the absent party Dismiss the case Go forward w/o the absent party, guided by FRCP 19(b) discretionary factors FRCP 20 Permissive Joinder Test: you may join any parties whose claims (P joinder) or potential liability (D joinder) (1) stem from same T&O/ series of T&Os, AND (2) Theres at least one common question of law or fact Liberal application in favor of efficiency and consistency. FRCP 14: Impleader (Third Party Claims) Rule: Defending party may serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. Efficient b/c consolidate. Liabilitiy: third party D is liable to original D (3rd party P), not P1 Getting off the hook: 14(a)(2)(C), defeat Ps original claim/ 14(a)(2)(A), defeat Ds derivative claim. Impleading multiple parties: fine, they may all be liable, or alternatively Narrower than 20 and 13.

SMJ: must still exist, treated like a brand new action and must meet all FRCP requirements. SMJ may exist through 1367 Diversity: measured between 3rd party P and 3rd party D, doesnt destroy diversity of original claim, might get through supplemental jurisdiction (prevent gamesmanship) FRCP 13(h): Joining parties on a crossclaim or counterclaim FRCP 19 and 20 govern the addition of parties to ccs & ccs Remember that crossclaims require same T&O Joinder of Claims Claim Joinder: FRCP 18 No T & O requirement once theres already a proper claim against same party Very broadly construed (Tenet) Res Judicata concerns good to bring everything with same T&O Still need SMJ over all claims FRCP 42(b) severability FRCP 21 misjoinder- not a ground for dismissing action. Counterclaims: FRCP 13(a-f) Compulsory counterclaims (13)(a) Arise from same T&O as claim Dont require adding another party over whom court cant get juris All Ds must file- not just original (includes cross-claims) Exceptions: FRCP 13(a)(2), include no PJ + no waiver When in doubt, treat as compulsory, broad treatment (Heyward) Permissive counterclaims (13)(b) Any non-compulsory counterclaim 42(b) usually severed Added by any D (not just original) D can bring in either pending action by same P (Pickard) Watch out for SMJ! No ancillary jurisdiction Cross-claims: FRCP 13(g) Same side of the v Permissive. Must be same T&O, may include indemnification Look out for SMJ Parties who are cross-claimed against must file any compulsory counterclaims. See 13(h) for joining parties on cross-claims. Consolidation: FRCP 42(a) Court can consolidate multiple pending actions (or issues) that are in the same court and deal w/ a common question of law or fact.

Note: If not yet in same court, would have to transfer venue before consolidating. Supplemental jurisdiction **1367 in FQ and SMJ sections Notice, Service of Process & the Opportunity to be heard Notice Purpose: DPC Constitutional adequacy: 14th DPC (Mullane) Reasonably calculated to apprise Reasonable method Reasonable time Factors See outline Mail generally ok Newspaper generally disfavored (Walker, Schroeder) When notice by mail is returned (Jones v. Flowers) Service of Process Basics Process = summons + complaint 2 available challenges: Insuff process 12(b)(4), insuff service 12(b)(5) Note that PJ could be an issue, even if service was ok Individuals in the US, FRCP 4(e) 2(A) deliver personally, 2(B) leave it at the home w/ someone of age + discretion, 2(C) deliver to agent authorized by appointment or by law, (1) Use method of service in state where fed ct sits, (1) If service is made outside state where action was commenced, you can use that states service rule. Individuals outside the US: FRCP 4(f) Corporations, Partnerships, Associations Inside the US FRCP 4(h)(1)(a): directs to 2 FRCP 4(e)(1) options FRCP 4(h)(1)(b): adds agent/ officer methods Hellenic Challenger- not restricted to formal titles. Waiver of Process FRCP 4(d): 30 days to return or charged if domestic D 4(d)(3): incentive to waive- 60 rather than 20 days to respond Timing FRCP 4(m): P has 120 days w/in filing to serve, or can dis w/o prejudice Return of Service FRCP 4(l): P must file after serving False return of summons and judgment: ruling stands (Miedreich) Immunity

Purpose: protect from interferences w/ judicial process. Proper where served when only there to be a witness (State ex rel Sivnksty) or statute governs Etiquette Purpose: limit gamesmanship, dont allow tricks Fraud affection jurisdiction = lack of jurisdiction (Wyman) Opportunity to be Heard Constitutional Requirement: DPC requires at a meaningful time and in a meaningful manner. Goldberg. Constitutional limits (1) Deprivation by government: Mathews balancing test: (1) private interest that has been affected by government action (risk of erroneous deprivation of interest through procedures used), (2) the probable value of additional or substitute procedural safeguards, (3) government interest in conserving fiscal and administrative resources that the additional or substitute procedural requisites would entail. Mathews: Termination of social security disability doesnt require evidentiary hearing. Goldberg: termination of public assistance payments w/o evidentiary hearing violates DPC (2) Deprivation by private individuals Test: think about process both pre- and post- deprivation when considering whether it meets the Goldberg standard. Fuentes, no prior notice or op to defend when stove repod, violates DPC Mitchell, Sequestration order requiring doc proof and judge auth OK Di-Chem, Conclusory allegations dealing w/ garnishment provision violate DPC, esp since only need clerk, not judge Doehr, statute involving pre-judgment attachment of Ds house. Violates DPC Pleading and Summary Judgment The complaint FRCP 3: commence civil action by filing complaint w/ court, gives notice. FRCP 8: General Rules of Pleading. (a) Claims for relief: Pleading stating claim for relief must contain (1) short, plain statement w/r/t juris unless no new grounds needed, (2) short, plain statement of claim showing pleader deserves relief, (3) demand for relief sought, may include relief in alternative/ different types of relief. (d) Pleading Concise and direct; Alternative statements, inconsistency Pleading damages General damages (foreseeable consequences of injury alleged in petition) FRCP 54(c): Relief granted can exceed relief requested in pleadings Exception: default judgments cant exceed amount demanded in plds.

Punitive damages may be stricken if P doesnt give notice seeking (Anheuser-Busch) Special damages (not necessary or inevitable result of injury alleged in petition. Ziergovel.) FRCP 9(g): must be specifically stated if claimed. FRCP 12 Motions and defenses 12(a) Timing: Answer w/in 20 days after service, unless waived60 days from time waiver sent, unless US, then 90. 12(b) Defenses Waivable 12(g)(2): (2) Lack of PJ, (3) Improper venue, (4) Insufficient process, (5) Insufficient service of process Not waivable 12(h)(2-3): (6) failure to state a claim upon which relief can be granted, (1) Lack of SMJ, (7) Failure to join a party under rule 19 12(b)(6) in depth: Purpose: Weed out the bad claims Analysis: Timing: can be any time Need SMJ and PJ- need them to dismiss on 12(b)(6) b/c substantive iss Possible grounds for granting: (1) no legal relief available, (2) claim wasnt adequately alleged What to use: Only look at pleadings, assume P can prove alleged facts. Tests Conley: Requirement for complaint: give D fair notice of claim and grounds for it. Requirement for dismissal: beyond a reasonable doubt that P cant prove facts to support claim that would entitle him to relief Twombly (antitrust, allege parallel actions of Ds) Conceivable Plausible. Pleadings must contain enough facts to raise a reasonable expectation that discovery will reveal evidence of the illegal agreement. Reject Conley, which allows for conclusory statements. Post-Twombly confusion Does Twombly heighten the pleading standard? Erickson: refers to Twombly, but only part citing Conleys fair notice requirement. FRCP 12(e) Motion for a more definite statement Cant reasonably file response. Point out defects. 10 days to respond. FRCP 12(f) Motion to Strike Court can strike from pleading by motion or on own (1) insufficient defense, or (2) redundant, immat., scandalous matter. Timing. The Answer (1) Admissions and Denials

3 choices for each allegation 8(b)(1): (1)admit, (2)deny (general or specific. Zielinski), or (3) deny for lack of information ( negative pregnant, conjunctive denials) (2) Affirmative defenses 8(c)(1). Must raise in responding to pleading. Includes res judicata, SoL, waiver, laches, statute of frauds (3) Counterclaims FRCP 15: Amending the Answer Without permission: 15(a)(1) With Permission: 15(a)(2). Court has discretion, grants liberally, but harder once trial has begun Relation back of amendments, 15(c): Same T&O to relate claim back. To change party name, must be same T&O and basically a mistake. FRCP 11: Truthfulness in Pleadings Nonfrivolous, believe its true, etc. Sanctions. Doesnt apply to discovery. Discovery Purposes: Preserve evidence, narrow issue, go fishing (gamesmanship) The joy of depositions: FRCP 32(a)(4) can use depositions of unavailable witnesses at trial. 2-part Analysis (1) Is discovery permissible under the broad scope of 26(b)(1)? Rule: Must be (a) relevant to claim or defense, (b) not privileged, (c) reasonably calculated to the discovery of admissible evidence Gamesmanship: Attorneys will say going for punitive damages b/c gives broader access to financial records. Discovery plan 26(f) Protective orders 26(c)(1) (2) Do any limits to the discovery of relevant information apply? Privilege, FRCP 26(b)(5)(a) Expressly make the claims, describe the nature of the documents Attorney-client, priest-penitent, dr-patient, husband-wife Attorney-client privilege: (1) client (2) lawyer = (a) member of the bar and (b) acting as lawyer, (3) communication relates to a fact of which attorney was formed = (a) by client (b) w/o presence of strangers (c) to secure (i) legal opinion or (ii) legal services or (iii) legal assistance and not (b) to commit a crime, and (4) the privilege has been (a) claimed and (b) not waived by client. Work product: FRCP 26(b)(3), not a privilege but a protection (1) info reasonably obtained by other means no discovery (2) substantial need + substantial hardship maybe (3) opinion work product can never be discovered. Hickman Initial Disclosures and discovery sanctions FRCP 26(a)(1)(A) Duty to disclose: 4 categories of mandatory initial discl

FRCP 37 Failure to make Disclosures or to Coop in Discovery: Sanctions Must try on own first, little court sanctioning, lots of gamesmanship FRCP 60(b)(3) Relief from Judgment or Order: fraud, misrep, misconduct Cummings The duty to supplement responses, spoliation and the duty to preserve evidence Duty to supplement responses: FRCP 26(e), discovery = ongoing duty Also must fix incomplete, incorrect responses. Spoilation: Duty to not destroy ev begins even before lit starts. Silvestri Discovery Devices FRCP 30: Oral Deposition High impact, high cost. Cross-examination allowed. FRCP 31: Written Depositions Cheaper but low impact, no follow-up, only serve on parties to the action FRCP 33: Written interrogatories Questions written, sent by mail Cheaper but low impact, no follow-up, only serve on parties to the action 33(d) business records- must specify where they are FRCP 36: Request for Admissions Must admit, deny or say why you cant/ shouldnt have to answer. Silence presumption of admission Only good for litigation at hand Gamesmanship- deny much more than really should. Cheap FRCP 34: Production of Documents and property No court order needed, responding party must go to court to block if feel inappropriate. Gamesmanship: often draft broadly and produce w/ as narrow a construction of request as possible. OR send a ton of stuff to sift through. FRCP 35: Physical and Mental Examinations Need court motion, must demonstrate good cause Expert Witnesses Testifying experts: FRCP 26(a)(2). Requires extensive disclosure Non-testifying experts: FRCP 26(b)(4)(B): No disclosure unless exceptional circumstance Summary Judgment, Voluntary Dismissal and Default Judgments Summary Judgment, FRCP 56 Purpose: Get rid of claims that dont need a trial for resolution 56(c): Moving party must show (1) no genuine issue of material fact AND (2) entitled to judgment as a matter of law.

Proof and Process (FRCP 56) (e)(2): Nonmoving party must respond directly (c)(1)Material Fact: Fact that will affect case outcome (c)(1) Genuine issue of material fact: Jury could reasonably reach dif conclusions w/r/t the fact (c)(2) Judgment as a matter of law: Whole claim thrown out of P cant prove one element of claim. (d) Partial summary judgment (f) Continuances to allow nonmoving party to develop case, discretionary What to look at GIoMF: Pleadings, discovery and disclosure materials on file, any affidavits- doesnt have to be admissible evidence When to Grant (1) Moving party bears the burden of persuasion at trial Moving party must show would be entitled to a directed verdict at trial Burden then shifts to nonmoving party to controvert. Celotex: need not negate non-moving partys claim (2) Non-moving party bears the burden of persuasion at trial (a) Submit affirmative evidence negating an essential element of the non-moving partys claim OR (b) Demonstrate that non-moving partys evidence is insufficient to establish an essential element of his claim. Celotex Celotex (D demonstrated that P couldnt carry burden of proof of showing asbestos exposure at trial) Lundeen (Clear affidavits of the only persons who could know the facts can be a basis for SJ) Cross (Judge cant draw fact inferences on a motion for SJ) Evidentiary standard Comport w/ evidentiary standard that will be set for trial- what could the jury reasonably find given the standard? Anderson (libel case, requires clear and convincing evidence that D had actual malice) Absence of plausible motive is relevant in det. GIoMF. Matsushita Court cant adopt Ps version of facts when blatantly contradicted by the record. Scott Voluntary and Involuntary Dismissal: FRCP 41 (a) Voluntary Dismissal Purpose: Get out of lawsuit w/o affecting legal rights before waste $, jud r Rule: 41(a)(1): w/o court order if (i) before receive answer or motion for SJ, or (ii) signed stipulation by all parties. W/o prejudice. (a)(2) by court order, default = w/o prejudice. (b) Involuntary Dismissal D may move b/c P failed to prosecute w/ due diligence, or court can do it on its own, usually w/ prejudice, very discretionary (Link/ pretrial conf) Default Judgments: FRCP 55

Default Clerk may enter when fail to plead or defend. Requires no notice. 55(c): Motion to set aside default by showing good cause. 60(b): Can also use to set aside defaults. Default Judgment: (b)(1), Default + complaint for certain sum +no D appearance + not a minor or incompetent, enter DJ in that amount. (b)(2) otherwise it goes to court, trial judge has discretion. 60(b) motion to set aside default judgment: stricter standard Notice to other side: (b)(2) requires notice where party has appeared Trial by Jury and JMOL Jury Trials Federal Constitutional Right to Jury Trial 7th A: right of a jury trial shall be preserved Test: (1) Issue of fact underlies claim for legal relief jury, (2) issue of fact underlies claim for legal and equitable relief jury, (3) issue of fact underlies a purely equitable matter judge w/ no jury. Legal or equitable? Terry test: (1) Look at 18th cent. statutory action before merger- legal or equit (2) Is remedy sought legal or equitable in nature? (more emphasis) Division of labor btw judge and jury Judge instructs jury on applicable law, jury applies it to the facts FRCP 51: if you dont object to the instruction, you waive right Is it a question of law or fact? Markman Test: (1) use historical evidence and precedent. (2) When murky, ask whos in a better position to decide. Demand and waiver of jury trial: FRCP 38 If its jury triable and either side demands a jury trial, you get one. FRCP 38(b)(1)- serve other side w/ written demand, 10 days FRCP 38(c) you can specify which of jury triable issues you want j.t. on FRCP 39(b): court has discretion, on motion, to order jury trials that werent previously demanded. JMOL (Directed Verdict): FRCP 50(a) Purpose: Once trial has begun, keep cases from going to a jury when a reasonable jury couldnt find for the non-moving party. FRCP 50(a): (1) Rule: Court can grant JMOL on claim, defense, issue when finds a reasonable jury wouldnt have a legally sufficient evidentiary basis to find for the party on that issue. (2) Motion. Any time before case goes to jury. Whats a legally sufficient evidentiary basis? (1) Mere scintilla test: A few states. Barely need anything to go to jury. Brown

(2) Plaintiffs evidence test: JMOL only if evid. supporting nonmoving pty, in light most favorable to that pty, isnt enough. Wilkerson (3) Federal Standard: (a) Nonmoving partys evidence in light most favorable to it + (b) other partys non-contradictory evidence. Boeing A mere scintilla of evidence is insufficient Use this to interpret 50(a) Timing: (1) D can move for JMOL directly after P presents evidence, (2) Both can move for JMOL after D presents evidence in response to P. Post-trial Motions JNOV: Renewed motion for JMOL: FRCP 50(b) Purpose: If overturned, no risk of new trial (Redman: this is okay) Requirement: Previously filed JMOL (chance to cure/ avoid gamesmanship) Limits: Limited to JMOL you filed; depends on where, what you objected to. Standard: Same as JMOL. Standard on review: Abuse of discretion. Timing: FRCP 50(b), no later than 10 days after entry of judgment Never denied: Automatically reserved if JMOL not granted. Possible outcomes: (1) keep verdict, (2) new trial, (3) direct JMOL Combined JNOV and New Trial Motions FRCP 50(c): When combined 50(b) and 59, determine if there should be a new trial conditional on how JMOL ruling is treated on appeal. Result: JMOL ruling upheld, no new trial. JMOL ruling shot down, moving party preserved option of new trial rather than keeping verdict FRCP 50(d): You win at trial, 50(b) granted against you, you can move for new trial w/in 10 days- might happen if you had objections to original trial. FRCP 50(e): You win at trial, JMOL not granted against you. You can argue that there are grounds for a new trial in case the other party appeals and the Court of Appeals rules JMOL should have been granted against you. Motion for a new trial: FRCP 59 Standard Errors in the trial process: Must be prejudicial, had to obj at trial to preserve, must move w/in 10 days Verdict is against the clear weight of the evidence: Consider credibility of witnesses. Weaker than JMOL/JNOV standard. Gasperini: review under abuse of discretion standard. Appeals: No interlocutory appeal available- no final judgment Conditional New Trial: If JNOV fails, file for JNOV and c.n.t. at once. Remittitur , Addittur (unconst) Timing: FRCP59(a) 10 days after entry of judgment Motion for relief from a judgment or order: FRCP 60 (a) blunders in execution like clerical errors (b) Bases for relief, w/in reasonable time, discretionary, hard to get. Includes mistake, fraud, based on earlier judgment that was reversed.

Appeal The Final Judgment rule Statutory: 28 USC 1291. CoA has juris over all final decisions of dist. courts. Examples Final Judgment Not a final judgment 12(b)(6) granted 12(b)(6) denied Summary Judgment Granted Summary Judgment Denied JMOL granted (prob. Partial) JMOL denied Renewed JMOL granted (prob partial) Renewed JMOL denied New trial granted (SOMETIMES final) New trial granted (SOMETIMES) Liberty Mutual: partial s.j. only on liability, not on relief sought. Orders not appealable as final judgment. Exceptions to the final judgment rule Certification of interlocutory appeal, 1292(b) Both trial judge and ap judge must agree that (1) controlling question of law (2) substantial ground for difference of opinion, AND (3) immediate appeal may materially advance ultimate termination of litigation Dis ct says all 3 are there- certifies, then circuit court has discretion Cases involving multiple claims: FRCP 54(b) District court judge can enter final j. on some but not all of claims if (1) enter final j. on severable and (2) determines theres no just reason for delay. Deferential standard. Mackey The Collateral Order Doctrine Effectively unreviewable on appeal from final judgments Will Pragmatic Finality Basically finished- need finality to move on. Brown Shoe Mandamus (not tested) Timing for appeal: Time limit begins to run w/ final j. usually 30 days. Standard for review: (1) questions of law de novo, (2) questions of fact very deferential, (3) mixed questions abuse of discretion standard. Claim and Issue Preclusion Claim Preclusion (Res Judicata) Purpose: Prevent claims from being split into two separate suits Test:

When the law changes after judgment, not enough. Title Newly discovered evidenced: Patricks criteria, (1) would probably change result, (2) discovered since trial, (3) couldnt have been discovered before trial by due diligence, (4) material, (5) not merely cumulative/ impeaching. Perjured testimony: If material, judgment set aside. Peacock Records

(1) Case 1 resulted in a final judgment (ok if appeal to f.j. pending) (2) Judgment in Case 1 was on the merits w/ prejudice = on the merits, w/o prejudice isnt P must have full op to litigate on the merits JMOL counts, so does 12(b)(6) dismissal in some states after amendments or when amendments are futile. (3) The decision in Case 1 was valid (no fraud, had SMJ and PJ) (4) The claims must be the same in Case 1 and Case 2 Federal and Restatement approach: Same T&O, cant relit later if you failed to join at first. Exception: 2 disease rule (asbestos/ cancer) in many state courts Primary rights approach Same legal theory test (5) Case 1 and Case 2 were asserted by the same Claimant (or their privy) against the same defendant (or their privy). Substantial control: Privy if had. Burden of proof on moving party. Virtual representation: show nonparty has had actual/constructive notice of earlier litigation and the balance of equities tip preclusion. Adequacy of rep. not dispositive. Rule-Based Res judicata: If you didnt bring a compulsory claim, youre claim precluded. Policy: keep in line w/ rules. Issue Preclusion (Collateral Estoppel) Purpose: Avoid relitigating the same issue twice. Test: (1) Case 1 ended in a valid final judgment on the merits See C.P. (1-3) (2) The issue in the second case is the same as the issue in the first. Consider: (a) substantial overlap in evidence or argument, (b) application of the same rule of law, (c) similarity in pretrial prep and discovery, (d) How closely related are the claims involved Restatement (Second) of Judgments, 27 (3) The issue was actually litigated (Raised at trial) (4) The issue was actually decided in the previous action must have been a winner on the issue (5) The issue was necessary to the courts judgment Test: If the finding on the issue had come out the other way, would the judgment be the same? General verdicts: What if court finds for lit on 2 indep, suffic grounds? Neither gets IP (Halpern, bankruptcy) Alternate rule: both get issue preclusion (Winters) Or estoppel if recordboth holdings got full consideration Malloy Parties and Mutuality in Issue Preclusion General Rule: Nonmutual estoppel estopped party must have been a party in 1st suit, had chance to litigate the issue. Granting is always discretionary.

Nonmutual Defensive Collateral Estoppel Case 1: P1 v. D1 (P1 loses on issue X) Case 2: P1 v. D2 (D2 tries to use IP to prevent relitigation of issue X) Blonder-Tongue Test: Consider fairness, doesnt matter if D2 could easily have joined. Goal = minimize litigation. (University/ patent infring) Nonmutual Offensive Collateral Estoppel Case 1: P1 v. D1 (D loses on issue X) Case 2: P2 v. D1 (P2 seeks to use issue preclusion to establish issue X in action against D.) Parklane Test: Consider (1) Whether party using IP could easily have joined, (2) Fairness to D: (a) incentive to vigorously litigate, (b) procedural op.s differ, (c) inconsistent judgments on books when Case 2 litigated. (Securities actions, test completely passed) State of the Law Mutuality jurisdictions dont allow either Some states allow defensive, bar offense Federal approach and some states: allow both Burden = on party seeking to use preclusion Gov: no nonmutual IP can run against the gov, but it can use it against Ds Favors one-shotters over RPs Class Actions Policy: Efficiency + empowerment of Ps v. fairness to absent class members Transubstantive: Special CA rules in securities fraud, immigration, legal services. Certification: FRCP 23(a) Stakes: high for D, huge incentive to settle. Finality: Certification never final. Appeal entirely discretionary. Requirements: (1) Identifiability, defining the class: 23 (c)(1)(B). Definition must be precise, objective, presently ascertainable. Shouldnt depend on subjective criteria or merits of the case or require extensive factual inquiry to determine who is a class member. (2) Class Representative must be a member of the class: Must have standing. Mootness of claim excused if post-cert or nature expire, such as pretrial detention w/o probable cause. 23(a) (3) Numerosity: Joinder of claims impracticable. 25-bad, 40 ok, middle? (4) Commonality: Common questions of fact or law requirement, broad interpretation, even one significant common question sometimes enough. Critical question: Will differences in factual bkg of each claim affect outcome of the legal issue? Las Vegas phone surcharge Compare to Joinder, rule 20

(5) Typicality: Representatives claims are typical of the class when (1) each class members claim arises from the same course of events, and (2) each class member makes similar legal arguments to prove the Ds liability. Falcon (Mexican-americans try to prove discrim in hiring practice in CA) Pleadings must show a clear and specific link btw indiv and class claims. Evidence showing that indiv was passed over b/c of his ract doesnt alone carry a presumption that theres a systematic policy of discrimination at the company. (6) Fair and Adequate Representation: (a) DPC concerns + (b) pragmatic concern over adequacy of rep to avoid collateral attack. Goals: (1) Uncover COIs btw named party and class represent, and (2) ensure named P resps class interest w/ sufficient vigor Securities-fraud cases: Private Securities Litigation Act, must be one w/ largest financial interest in relief sought. Types of Class Actions: 23(b) (b)(1): Prejudice class actions: mandatory class action created by cert- no opt out, no notice requirement. Decision to cert consider prejud. To nonclass parties and whether this would impair their abilities to protect their interests. 2 kinds: (a) If didnt cert, incompatible standards of conduct for opposing party could result from multiple indiv suits, (b) if didnt cert, could impair/impede non-included parties ability to protect their interests. (b)(2) Injunctive and declaratory relief: Mostly civil rights, employment discrimination, consumer, or environmental cases. Goal = change D behavior/ policy prospectively, not to provide indiv comp. No opt out. (b)(3) Damages Class actions- mass torts, etc where members claim to have been injured in the same way by the D. Requirements: (1) Predominance: common questions predominate over questions affecting only individual members, AND (2) Superiority: The CA is superior to other available methods for fairly and efficiently adjudicating the controversy. *See 23(b)(3)(A-D) for discretionary factors, including likely difficulty of managing a class action. Castano Judges might peek ahead at the merits in deciding to certify Notice (b)(1) and (b)(2) no notice requirement though many do- discretionary (b)(3)- notice is mandatory Standard: 23(c)(2)(B): Notice requirement is higher standard than Mullane requires: best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. Must have op. to present objections. Shutts Content: see (c)(2)(B) Costs: borne by party bringing the class action. If class is successful, costs of notice can be subtracted from the class recovery. Eisen

Appealability Discretionary b/c cert decision isnt final FRCP 23(f): Discretionary interlocutory appeal of certification order Settlement/ Voluntary Dismissal FRCP 23(e) Rule (1) court approval (2) notice and op to object to all class members, (3) for 23(b)(3)s, second opportunity to opt out Only applies when CA certified Burden: those who propose settlement must show fair, reasonable, adequate Settlement known from start: 23(b)(3) manageability requirement will be less stringent (Anchem) Opportunity to be Heard Special Rule: since interests of those not joined in CA same as those who are, and where latter fairly rep the former in prosecution, DPC concerns are met Only bound if was adequate representation by parties present (Hansberry) SMJ Diversity Jurisdiction Diversity of parties: Only look at citizenship of class reps (Ben-Hur) AIC requirements 1367/ CAs, as long as representative has sufficient claim, other members of class can tack on. Exxon Mobil OR see CAFA, 28 USC 1332(d)(a) Basic rule Minimum Diversity (Single D from a single P) and total of more than $5 mil in controversy, CA allowed. Unincorpd associations: treat like corp for citizenship. 1332(d)(10) Remember, this is for federal courts only, adds to what you can get through 1367 Exceptions: 1332(d) (1) Primary Ds = states, st officials, or other gov entities 1332(d)(5)(A) (2) Class contains less than 100 members (d)(5)(B) (3) Only contains claims involving a covered security or corporate governance issues. (d)(9) (4) Greater than 2/3 of the members are citizens of the state in which the action was filed and at least one D from whom significant relief is sought and whose alleged conduct forms a signif basis for claims asserted by the proposed P class is also a citizen of that state. 1332(d) (3) Judges discretion in this case: 1332(d)(3) (A-F) Personal Jurisdiction and Choice of Law Personal Jurisdiction For Ps, were not so concerned about minimum contacts- for DPC, just require notice + opportunity to be heard, b/c they bear less of a burden than Ds and have ability to opt out. Shutts

Choice of Law Due Process Clause and the Full Faith and Credit Clause limits on Choice of Law: These restrictions required that for a State's substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair. Allstate If the law of the state court hearing the case does not conflict with the law that would be applied, you dont need to worry about it. Considerations: fairness in the expectations of the parties, idea of overreaching state boundaries Venue: Only look at residence of class rep, ignore residence of absent class members for venue purposes. Preclusion in Class Actions: A judgment in a properly entertained class action is binding on class members in any subsequent litigation. Basic principles of res judicata (merger and bar or claim preclusion) and collateral estoppel (issue preclusion) apply. A judgment in favor of the plaintiff class extinguishes their claim, which merges into the judgment granting relief. A judgment in favor of the defendant extinguishes the claim, barring a subsequent action on that claim. A judgment in favor of either side is conclusive in a subsequent action between them on any issue actually litigated and determined, if its determination was essential to that judgment. Cooper *What about parties that opted out- are they precluded? Didnt have op to litigate, so I dont think cant be- only those that litigated and lost can be estopped against.