Civ Pro 1. Personal Jurisdiction a. Limited by 2 sources i. State statutes 1.

Have power to decide over whom they will have jurisdiction over 2. First place to look. 3. Must still be within Constitutions limits ii. US Constitution. 1. D must have contact w/ state so jurisdiction is fair and reasonable 2. D must be given proper notice of action and chance to be heard. 3. State statute cannot exceed these but is not required to exercise the full limit. b. Rule 4 - In Federal level, courts must treat PJ as if were a state court in which it is located i. Rule 4(k)(1)(A) 1. Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located c. 3 kinds i. In personam 1. Power is over D itself 2. Always try to get this but if you cant get it try other 2 ii. In rem 1. Power is over property 2. If cant get in personam but person has left property iii. Quasi in Rem iv. Due process sets boundaries for these 1. Must have case that falls within this 2. If it falls outside it is void to full faith and credit v. Statutory step 1. State long arm a. That allows jurisdiction over case b. In exam 1st step is is there a statute in this state? c. 2nd step, does it fall within the constitutional analysis d. In Personam i. General 1. D can be sued in this forum on a claim that arose anywhere in the world ii. Specific 1. D is being sued on a claim that arose in the forum. a. Called relatedness i. Does this claim relate to what this D did in the forum? iii. Constitutional Limit 1. Pennoyer a. Gives us traditional basis of jurisdiction i. D is served with process in the forum (presence) 1. Must have been present when you are in the forum (General Jurisdiction) ii. Ds agent was served in forum iii. D is domiciled in forum (GJ) iv. Consent 2. Court expanded these basis when world became mobile a. Expressed i. D stipulates courts jurisdiction in advance of litigation ii. Parties to a contract may specify jurisdiction in case of a dispute (Carnival) (Forum Clause) iii. Parties to a contract appoint in state agent to accept process. iv. An appearance of filing of a motion will constitute expressed consent. b. Implied

c. Hess v. Polaski i. Mass had (now a days all state has) non resident motorist act 1. If you drive your car in our state, you are consenting to jurisdiction (specific) 2. You are appointing a state official as your agent. 3. Consistent with Pennoyer, expands consent. d. International Shoe i. Jurisdiction is where D has such minimum contact with the forum, that jurisdiction does not offend traditional notions of fair play and substantial justice. ii. You can serve process outside the forum iii. Minimum contact has 2 parts 1. Contact part 2. Fairness part iv. This case does not overrule Pennoyer 1. Minimum contact is used when D is not present in forum state. e. Worlds Wide VW i. Car got to OK through family, D did not reach out to OK ii. Court said Foreseeability is part of it, but Foreseeability is not enough need purposeful availment. 1. Must be foreseeable that D could get sued in that forum. f. Keeton v. Hustler Magazine i. Facts: NH only place left where P could file. P claims that D has libeled in 5 diff issues. P from NY, no minimum contact in NH. D sells a lot of issues in NH good for minimum contact. ii. Holding: Yes, jurisdiction in NH iii. Rule: P does not need minimum contact Foreseeability also needed, Ds is enough, Rank Forum Shopping is constitutional. g. Calder v. Jones i. Facts: D in FL directs libel in article to P in CA. Sufficient amount of copies sold in CA. ii. Holding: Yes, Jurisdiction in CA iii. Rule: Calder Effects Test 1. Actual and anticipated effects of Ds activities in forum state. 2. If you cause effect in forum state, jurisdiction can be found. 3. If you direct any action towards any person in a forum state jurisdiction may be proper even if you never enter that state. h. BK i. Jurisdiction was upheld in FL over 2 guys in Michigan ii. Court makes it clear that there are 2 pats to shoes minimum contact 1. Contact a. Must have relevant contact before fairness becomes relevant at all 2. Fairness iii. Fairness gave problem 1. SCOTUS said that burden is on D to show that forum is unconstitutionally inconvenient (almost impossible to do) 2. Wealth is irrelevant. i. Asahi i. Stream of commerce case. ii. Make things in A, reach out to sell only in B, B puts it in machines and sell machines to C,D and E. iii. Does A have relevant contract with C,D and E? iv. 4 to 4 split no law from this case, results in 2 theories 1. Brenon there is a contact if A put it in the stream and could reasonably anticipate that it could get to C, D or E.

i. State statutes may specify that persons engaging in certain activities will expressly consent to states jurisdiction (Hessv v. Pawloski)

j.

MacIntire

2. OConnor need what Brenon said plus an intent to serve C, D or E. (advertised or something)

k. Goodyear i. General vs Specific Test 1. General if D had continuous and systematic ties w/ forum a. Goodyear goes further, GJ requires that D be essentially at home in state. i. Human domicile ii. Corporation state of incorporation and state of principle place of business iii. Some cases has said that there is jurisdiction over Wal-Mart in every state. But this has changed because Wal-Mart is not at home in every state b. Purchases and sales in forum is not enough i. Might need physical presence, big manufacturing plant needed dont know

i. Finishes up Asahi 1. A builds machines and reaches out to OH only. OH company sells it to other states. ii. No Majority again iii. 4 lead by Kennedy adopt OConnor theory iv. 2 Justices lead by Brier do not adopt either 1. Case didnt meet either case. 2. Get what Saunders thinks v. 3 Justices lead by Ginsberg uphold jurisdiction even if you do not anticipate it reaching NJ, if you target US market you can be sued if someone in US gets hurt.

l. Bernom i. Being sued in CA over case that arose in NJ requires GJ ii. Are traditional basis good by themselves? Or do you need Shoe (did Shoe overrule pennoyer) iii. Court split 4 to 4 1. Scalia traditional basis ok by itself, no need to talk about minimum contact 2. Brenon must apply shoe in every case.
3. Is there jurisdiction in state a. Does traditional basis apply? i. If yes, apply Bernum ii. Also flag that it was a 4 to 4 split and there is other side. Shoe b. How do we apply shoe? i. Must be relevant contact between D and forum 1. Must talk about purposeful availment 2. Foreseeability must be foreseeable that D can be sued in forum c. Stream of commerce i. Brenon vs. OConnor d. If there is a contact i. Is it GJ or SJ ii. Brings up relatedness 1. Does this claim arise from Ds contact w forum a. Yes specific jurisdiction b. No only ok only if GJ e. Is jurisdiction fair? i. 5 fairness factors (burden is on D to show it is unconstitutionally unfair) 1. Inconvenience for D 2. Forum state interest (does it have it)

iv. Statutory analysis 1. Is there a statute that says ok? If yes do constitutional analysis 2. Every state has 2 statutes that allow you to go after non residents a. Non resident motorist act (Specific Jurisdiction) b. Long arm statute i. Used for other claim besides motorist ii. Differ from state to state. 1. Some have laundry list a. Most will say that you have jurisdiction over D who commits a tort within forum 2. Notice a. Service of process i. Process consists of a summon and copy of complaint 1. Shows courts power over you 2. Under rule 4 ii. Service can be made by any non party who is at least 18 years old. iii. Rule 4(e) how you serve an individual 1. Rule 4(e)(2) a. Personal service i. Can happen anywhere. b. Substituted service i. Can only be done at Ds dwelling or usual abode. ii. Serve someone of suitable age and discretion who resides there. (does not specify age) c. Serve Ds agent. i. Such as in non resident motor statute. 2. Service on a business Rule 4(h)(1) a. Can serve an officer or managing or general agent. i. Someone with a significant responsibilities in company 3. Can also use state law Rule 4(e)(1) a. Did saunders cover sate serving process??? b. Service by mail c. May use state rules where things happened. iv. Waiver of service by mail Rule 4(d) 1. Mail to D process and 2 copies of a waiver form 2. Requires self addressed envelope 3. If fills out waiver form no need to hire person to serve. 4. If fails to return waiver form (has 30 days) a. Will be served and penalty is they pay for service unless they have good reason. v. Serving a party in a foreign country by other means not prohibited by international agreement. 4(f)(3) a. Neither a last resort nor extraordinary relief, merely one mean among several. b. No need to have attempted every permissible mean of service of process, before petitioning court for alternative relief. c. Rio 3. SMJ a. Have nothing to do with PJ i. SMJ tells us what court we go to. ii. PJ power over party, SMJ power over case and claim. iii. State courts can hear any type of case very few exception. iv. Federal courts have limited SMJ, can only hear certain cases. 1. Diversity of Citizenship 2. Federal Question

3. Ps interest 4. Interest in efficiency 5. Shared substantive policy

b. Diversity i. 28 USC 1332 (a)(1) 1. It must be between citizens of different state a. Complete diversity rule i. There is no diversity if any P is a citizen of the same state as any D b. U.S citizen is a citizen of the state where domiciled. i. Everyone only has 1 domicile. ii. Domicile 1. Must physically be in state 2. Mentally you must form intent to make it your permanent home. 3. Can only be changed if do both above in different state. c. Citizenship of a corporation i. Do not mention domicile because they done have it ii. Citizenship 1332 (c) (1) 1. Of the states where incorporates a. Can be in more than one state but almost impossible to find 2. AND the one state where company has principle place of business a. Can have 2 citizenships 3. Hertz a. Principle place of business is where managers direct, control and coordinate activity. (nerve center) b. Usually corporate headquarter. d. Citizenship of an unincorporated business i. Partnerships, LLE ii. Look to citizenship of all members iii. Can have citizenship in all 50 states e. Mass 2. Amount must exceed $75,000 a. Must exceed $75,000 ($75,000.01) b. Aggregation i. Must add multiple claims to get over $75k ii. Aggregate if its 1 P vs 1 D 1. Do not have to be related 2. No limit on number of claims. iii. Cannot aggregate if there are multiple parties on either side. c. With joint claims use total amount of claim i. Number of parties is irrelevant ii. Any one of the Ds can be responsible for amount do not look at claims iii. If it says joint then its a joint claim. d. Del Vecchio c. Federal Question Jurisdiction 28 USC 1331 i. Citizenship and amount in controversy are irrelevant ii. Case must arise under federal law. (Osborne) 1. Well pleaded complaint rule used to see if it does a. Look only at complaint b. Focus only on the claim itself i. Ask, does it arise out of federal law? 1. Yes = federal question c. Cannot arise out of Ds response d. Motley i. Does not invoke federal question ii. Are they enforcing a federal right? 1. No federal statute pass does not give them a federal right. 2. Breach is claim, fed part is anticipated defense. 3. Federal law took away instead of giving them something

Once in federal court, there must be Federal Subject Matter Jurisdiction. Every claim must test if it invokes diversity or federal question. If answer is yes the ok. What if a non diversity or federal questions case? Might still be able to under Supplemental jurisdiction d. Supplemental Jurisdiction 1367 1. Does 1367(a) grant supplemental jurisdiction? a. Yes if it meets Gibbs (common nucleus of operative facts) 2. Does 1367(b) take away jurisdiction? a. Takes it away only in diversity cases in specific claims by P. b. Not every claim just P vs D joined under Rule 14, 19, 20, 24 , rule 19 or 24 P. ii. If federal claim got dismissed early in case. iii. Gibbs 1. P (TN) D (TN) Claim1=FQ and Claim2=State law 2. Claim 2 is not federal question and no diversity because both from TN a. SCOTUS says you can bring it in if both claims are part of same case. b. How do we know if they are? Gibbs says they are if they share the same nucleus of the same operative facts i. Arise from same real world facts/events/behavior. c. Gibbs will always be met if claims arise from same transaction or occurrence. e. Removal Jurisdiction 1441(a) i. removal from state court to federal trial court ii. can only be removed only from state to federal iii. if case does not belong in federal court, it is remanded. iv. D gets to choose only if could have gone to federal court in the first place v. Its removable if case meets Federal Subject Matter Jurisdiction 1. Exception can never remove a diversity case if any D is a citizen of the forum 1441 (b) a. SC NY & GA for 3 trillion b. Case in GA state court, D cannot remove because D is from forum state. c. If a FQ then it is removable. 2. All Ds must agree to remove. 3. Can only remove to federal district that embraces state court. 4. (Hays) vi. 1441 (c) 1. If there is a independent claim or cause of action under1331 with other none removable cases, the entire case may be removed and the DC may determine all issues or may remand all matter in which state law predominates. vii. Removal and Remand Procedures 1. Notice of removal submitted to USDC and division w/in which such action is pending. 2. Filing notice to remove is not a waiver of any challenge to PJ viii. P may seek remand back to state court. 4. Venue 1391 a. Tells you the proper district to bring case, if multiple P may choose . b. Different from SMJ because SMJ tells us when we can go to federal court, venue tells you which Federal court c. Removal does not apply because you can only remove to court within state d. This case is specific to P moving to federal court e. 1391 (a) and (b) gives you the same 2 venue choices i. (a) for diversity (Power Paragon) ii. (b) Federal Questions/ Supplemental iii. Can go with either one iv. First choice is any district where all Ds reside. 1. However, if all Ds reside in different districts of state, then can lay venue in any of those districts a. P D MPA and D2 W DPA i. Different district of same state can sue in either.

b. Define reside? i. For human domicile (most courts) ii. Corporation 1. Statute 1391(c) a. Corporation resides in all districts where subject to PJ when case is filed. v. 2nd choice in any district were substantial part of case arose. 1. Can have more than 1 district vi. 3rd choice a judicial district in which any D is subject to PJ at the time the action commenced, IF there is no district in which the action may otherwise be brought. f. In Civil Action in Federal Courts i. Any district where any D resides, if all Ds reside in same state ii. District where substantial part of the events or omissions giving rise to the claim occurred, or substantial part of property that is the subject of the action is situated OR iii. If there is not district in US 1. Diversity - district in wich any D is subject to PJ at the time the action is commenced. 2. SMJ/SJ jurisdiction in which any D may be found. g. Transfer of venue 1404 and 1406 i. Moving to another court within same judicial system ii. Original federal court is transferor one to which we send it is transferee. iii. 2 transfer statutes 1. 1404 (a) (Hoffman) (Smith) (Bolivia) a. Transferor is a proper venue, in Personam J and SMJ b. Proper to proper, statute says you can transfer in convenience to parties and witnesses and subject of justice. c. Court looks at public and private factors. d. Transfer to venue that where action might have been brought 2. 1406 (a) a. Transferor due to improper venue. b. Transfer or dismiss (discretion of court) are only options. c. Requires that forum have SMJ and in Personam J over D and venue is proper. iv. Forum non convenience. 1. Court dismisses because there is a better more convenient court 2. Not transfer but dismiss because because better court is in different judicial system. 3. Usually comes up when court is in a different country. 4. Piper Aircraft a. Center of gravity is in Scotland so will dismiss and let them sue in Scotland. b. Foreign country will probably award low amount. c. SCOTUS said we must look at i. Same factors of 1404 1. Public or private factors. 2. Look at footnote 6 for factors. ii. Usually conditioned on D waiving something. 5. Erie a. Comes up in federal court and almost always in diversity b. Problem is that federal judge has to decide an issue, questions is does judge have to follow state law? c. Black letter rules come from Erie must apply state law if this issue is substantive. i. Based on rules of decision Act 1652 commanded by constitution (10th amendment) ii. Substantive 1. Elements of claim are always substantive. 2. Erie railroad a. Whether train liable is substantive 3. Know professors theory on Erie a. Starting point in Erie question Hannah i. Splits Erie doctrine into 2 1. Is there a federal directive on point?Any federal law on issue

a.

b. Garant v trust i. No federal directive so under Erie, Judge forced to follow statute of limitations. ii. Corut said that outcome in federal and state court should be the same. iii. If we ignore state law will it cause a different outcome? (test) iv. Here it did so substantive c. Byrd i. State law said issue had to be decided by Judge not jury ii. Does federal court had to follow state law? iii. If substantive follow state law 1. Not outcome determative, if it is something that is not obviously substantive, apply state law unless federal system has interest in doing it different. 2. Here no reason for rule federal had 7th amendment so it outweighed state d. Twin aims i. Avoid 1. Forum shopping, 2. Inequitable administration of law. 3. Ask it when case is filed, if federal court ignores state law, will it cause people to flock to federal court? a. Yes, then there is forum shopping and gives inequitable administration of law. d. Hypo: state law says that consumer claim cannot be brought in class action. Diversity claim and under federal rule 23 meets requirement for class action. Can it go forward in federal court? i. Is there a federal directive on point? 1. Yes rule 23 applies it wins if its valid, it is valid because its procedural. This is Hannah problem e. Hypo: state law that concerns with cost of health care. States that if you sue a doctor for mal practice case must go to arbitration. After you arbitrate you can go to jury trial but jury will told what arbitrator said. Diversity case i. Is there a federal directive? No because no federal rule about arbitration so Erie ii. Erie 1. Thrown in a. Is it outcome determitive? Will outcome change if we ignore state law. i. Dont know b. Balance interest i. State has big interest because it is trying to drive down cost. Federal interest is being delayed. State seems to outweigh federal c. Twin aims i. If we ignore state law, will it ause people to flock to federal court? 1. YES! All P who can do it will do it, there is forum shopping and inequitable administration of state law 2. Seems like must follow state law 6. Pleadings a. Rule 8(a)(2) b. Twombly and Iqbal

Yes there is a federal directive that competes with state law you apply federal law. If it is valid. i. Tested in Rules Enabling Act Section 2072 your professor tells you have it means. ii. Shady iii. Steven says you also have to show that it does not modify state law. b. if no federal directive on point then under Erie. i. Cannot ignore state law if it is substantive. Must follow state law. SCOTUS does know but must deal with 3 things

i. Has made it harder to state a claim ii. Boiled down to 3 rules 1. Court will ignore conclusions of law 2. Court looks only at the facts a. Must plead facts supporting a plausible claim i. Rule 8 does not require it but it does now 3. Court will use its own experience and common sense to determine if claim is plausible. iii. Some things you must plead with more details Rule 9(b) and 9(g) 1. Fraud, mistake and special damages a. Fraud i. Tell how, why, what was it about requires details b. Special damages i. Do not naturally flow from event ii. Must show chapter inverse for damages. iii. Guy gets hit by car suffered nerve damages that gave him permanent erection (thats special damages) isnt normally going to happen. c. Defendants response i. D has to respond in 2 ways and must be done within 21 days by motion or answer. 1. Motions is not a pleading, its a request for a court order a. Rule 12 motions i. 12(e) more definite statement (not really used) ii. 12(f) to strike (not really used) 1. Strike out stuff that doesnt belong iii. 12(b) motions to dismiss (gives 7 of them) can be motion or answer. 1. No Subject matter jurisdiction 2. No PJ 3. Venue 4. Insufficient process a. Problem w/ one of those papers 5. Insufficient service of process a. Not served properly 6. Failure to state a claim 7. Failure to join a rule 19 party iv. Can be raised in motion to dismiss or raised in answer v. G and H 1. 12(b) 2-5 must be in first rule 12 response either motion or response 2. 12(b) 6,7 may be raised anytime through trial. 3. 12(b) 1 never waived, can be raised at any time. d. Hypo D raises 12 b 1 motion, Motion denied now must answer. Answers with 2 problem? Cant raise because waived by not motioning first. i. Answer Rule 8(b) 1. States that we will respond to complaint a. Can admit b. Can deny c. Might say you dont know i. Ok to say unless answer is within your control, if it is you must look it up. d. Failure to deny is an admition i. Not true in _____ ii. Rule 8(c) affirmative defenses 1. Statute of limitations 2. Statute of frauds 3. Assumption of the risks 4. Anything where you say no matter what I did you cant win. 5. Must plead affirmative defenses or risk waiver. a. Must be put in answer 7. Joinder a. Determine line and scope of case

i. How many claims we can have ect b. Must know procedural rules. Good for testing subject matter jurisdiction c. All claims in federal court you must asses subject matter jurisdiction d. Claim joinder by the Plaintiff Rule 18(a) i. P can assert any claim they want. ii. Do not have to be transactionaly related iii. Once you know the number of claims must then asses SMJ 1. Diversity 2. Federal question e. Claim Joinder by Defendant. i. Counterclaim 1. Rule 13 (a) & (b) a. Claim against an opposing party b. Against someone who has sued you D back to P 2. Filed with answer 3. 2 kinds a. Compulsory Rule 13(a) i. One that arises from same T/O ii. Must be asserted in pending case, cannot sue in separate case. iii. If you dont use it you lose it. b. Permissive Rule 13(b) i. Does not arise from same T/O as Ps claim ii. May assert here if you want. c. Simply states that claim is procedurally ok, must still check for SMJ i. If it meets diversity no need to look at supplemental jurisdiction d. If compulsory claim does not meet diversity and not federal question i. Try supplemental jurisdiction 1. Does 1367(a) a. Yes same T/O (compulsory claims always meet Gibbs) 2. Does 1367(b) take away? a. It is diversity, but only kills claims by P so its ok, there is supplemental jurisdiction in this claim. ii. Crossclaim Rule 13(g) 1. Against a co party 2. Must arise form same T/O as underlying dispute 3. Never compulsory does not need to be brought up here 4. Hypo: 3 way car crash A sues B and C. A citizen of PA, B & C citizens of NY. All claims more than $75k (diversity.) What claims might C assert a. C can compulsory claim against A. i. Then apply SMJ b. C may file a Crossclaim against B i. Both Ds same T/O ii. No Diversity or federal questions iii. Try Supplemental 1. 1367(a) Yes 2. Crossclaim always meets Gibbs 3. 1367(b) only applies to claims by Ps. iii. Proper parties Rule 20(a) 1. Who may be joined in the case. 2. Rule 20(a)(1) can sue as co P a. If claim rise from same T/O b. Claim has at least one common question 3. Rule 20(a)(2) test for co D a. If claim arise from same T/O b. Claim has at least one common question 4. Must asses SMJ iv. Necessary and indispensable party Rule 19 1. Who should be joined

If P sues D but there is 3rd party (A) who is not in case Sometimes A is important to case but not in case Court can bring him in because he is necessary Is A necessary? a. Rule 19(a)(1) 3 test for necessary worried about diff things i. 19 (a)(1)(a) 1. Court cannot accord complete relief w/out A ii. 19 (a)(1)(b)(1) 1. If A is not joined, A might be hurt in practical way iii. 19 (a)(1)(b)(2) 1. A is necessary if interest of A subjects D to multiple or inconsistent obligations. b. Hypo: A has stock certificate, P says it should be both of yours. P sues D but not A to have stock under both your name. i. 19(a)(1)(a) 1. Yes ii. 19(a)(1)(b)(1) 1. Yes stock might be canceled. iii. 19(a)(1)(b)(2) 1. Puts in position that might be sued twice so yes 6. Is joinder feasible? a. Yes, if PJ over A and bringing her in will not mess up SMJ 7. If joinder is not feasible. a. 3rd step: either proceed without her or dismiss case. i. Decision made under Rule 19(b) 1. Usually dismiss if there is alternative court where everyone can be joined under one case. a. If dismiss call A indispensable (12(b)(7) v. In pleader Rule 14 1. Joining someone new. 2. AKA 3rd party practice 3. D party joins someone new (Third party Defendant (TPD)) 4. TPD may liable to D for Ps claim against D. a. Usually for indemnity or contribution 5. PD DTPD 6. Not a Crossclaim because does not involve an someone who has been a party 7. Rule 14(a) a. P can sue TPD as well. i. Must arise from same T/O 8. TPD can assert claim against P 9. Must do SMJ for each of those claims. 10. 14(a) (3) vi. Intervention 1. Non party absentee wants to join case 2. Can choose as either P or D 3. If P will assert claim against D 4. If D then will help defend claim 5. Then must asses SMJ 6. Can intervene by a. Being timely 7. Intervention of right Rule 24 (a)(2) a. A has right to intervene if i. As interest is harmed if not joined ii. If A is necessary 8. Permissive intervention 24(b)(2) a. Must show that claim in pending case has common question. vii. Class Action Rule 23 1. Prerequisite 23(a)

2. 3. 4. 5.

2.

3. 4.

5. 6. 7.

8. Discovery a. Required disclosure Rule 26(a) i. We must produce info even if no one asks for it. ii. Initial disclosure Rule 26(a)(1) 1. Must turn in early on 2. Must identify everyone with discoverable information that you might use in case 3. All info that might be used in trial 4. P has to give computation of damage 5. D has to tell about insurance. iii. Rule 26(a)(2) 1. Give up info about expert witnesses iv. Rule 26(a)(3) 1. Give up all types of information that you will rely on in trial. b. Discovery tools i. Which can be used to get info from a non party? (issue) 1. Deposition Rule 30 & 31 a. 30 on oral questions i. Swear person in asks questions and person answers under penalty of perjury ii. Can depose a party or non party but must subpoena non party. Never have to subpoena a party 2. Interrogatories Rule 33 a. Written questions answered in writing under oath. b. Can only be sent to parties. i. Good for background information 3. Request to produce Rule 34

23(a)(1)Numerosity too many class members for practicable joinder headed by one rep. b. Commonality 23(a)(2) - some common question at least 1. c. Typicality reps claim must be typical of the class members d. Rep will fairly and adequately represent class. Types of class actions a. Three kinds i. 23(b)(1) ii. 23(b)(2) iii. 23(b)(3) Damages class 1. Common questions predominate over individual questions 2. Show that class is the superior way to resolve dispute. Motion to certify a. Not class action until court certifies it. b. Court must appoint class council Rule 13(g) Notice of pendency a. In (b)(3) class, court must give individual notice to all members reasonably identifiable. b. 23(c)(2)(b) i. Gives members chance to opt out. c. NO NOTICE REQUIRED IN (b)(1) OR (b)(2) d. Rep responsible to pay for notice Who is bound by class judgment a. All class members except those who opt out of (b)(3) b. NO RIGHT TO OPT OUT IN (b)(1) or (b)(2) Settlement or dismissal a. Must be approved by court once certified. SMJ a. Diversity is big issue i. For citizenship in diversity class action you look only at the rep. ii. Amount and controversy 1. Exxon v alopata a. Ok as long as reps claim exceeds $75k

a.

a. Written request that someone give you access to stuff b. 34 (C) states that can be used for non parties but must use a subpoena or doesnt have to do it. 4. Medical exam Rule 35 a. Need court order b. Can only be taken of a party or someone in the parties custody or control i. Does not count for employer and employee relationship. Usually parent and child 5. Request for admission Rule 36 a. Only sent to parties b. Force party to admit or deny any discoverable information i. If dont deny then they admit c. Scope of discovery i. Rule 26(b)(1) 1. You can discover anything relevant to a claim or defense 2. Can discover stuff just to see if it will lead to relevant evidence ii. Work Product 26(b)(3) 1. Trial preparation material 2. Material prepared in anticipation of litigation 3. Hickman v. Taylor 4. Not discoverable 5. Stops freeloading problem 6. Might be able to overcome work product a. If you can show i. Substantial need ii. It is not otherwise available. 7. Some kind you will never get, absolutely protected a. Mental impressions b. Conclusions, opinions or legal theories. 8. Does not have to be generated by lawyer. Can be generated by anyone. 9. Pre-Trial adjudication a. Motion to dismiss for failure to state a claim 12(b)(6) i. Never look at evidence just at face of complaint ii. Trying to figure out if law recognizes this claim iii. Read facts and assume that they are true, then ask if everything is true will they win? if the answer is no then dismiss. iv. Twombly/Iqbal 1. It has to be a plausible claim. b. Summary Judgment Rule 56 i. Court can look at evidence. ii. 56 (a) Moving party have to show that 1. No genuine dispute on a material fact. 2. Moving party is entitled to judgment by matter of law iii. used to weed out cases that do not require trial iv. Only reason to go to trial is to resolve disputes of fact. v. Not using trial evidence, its evidence parties given to court 1. Usually in form of affidavit/declarations a. Signed under oath i. Under oath means evidence 2. Pleadings are not under oath vi. Court looks at evidence and asks one questions. is there a genuine dispute on a material fact? 1. If no then summary judgment ok. vii. Hypo: P run over by car and sues D. P says he was in the right D was negligent D ran red light. D moves for summary judgment attaching affidavits from 35 clergy people who say that D had green light and P jumped out in front of them. 1. Summary judgment probably granted no dispute of fact based on evidence 2. what if P presents one from an alcoholic

a.

10. Trial a. Used to resolve dispute of fact b. If we have a jury, the jury decides facts, damages and credibility i. Judge responsible to provide Jury the law c. In bench trial judge decides fact d. Right to jury trial (7th amendment) i. Does not apply to state court. ii. Amendment preserves right to jury trial 1. Gets us stuck with historical test iii. Provides jury at common law. e. Chauffer union i. Court flushes out historical test 1. Find a 1791 analog to claim asserted a. Court will usually say yes because they dont know 2. Remedy sought by P a. Legal vs equity remedy i. Law damages $$$ to compensate for harm done. Compensatory damages ii. Equity -injunction, declaratory judgment, rescission, reformation b. Today you can have claim for damages and equity in the same case i. Equitable remedies are in personam and may get person arrested. c. If you sue for equity and damages do you et a jury? i. V. Dairy queen 1. Jury right determined by factual issue by factual issue. a. May get jury in some issues not others 2. If issue of fact underlies both law and equity you get a jury 3. Jury issues tried first. Now judge informed by jury decision may make him inclined. d. Hypo : guy trespasses on your property i. Questions of fact get jury 1. Did the guy trespass? 2. How much damages do you get ii. No jury because questions of law 1. Have you met the injunction requirement. f. 3 Motion i. To show judge that jury should try 1. JMOL Rule 50(a) a. Directed verdict historical now called JMOL b. Judge looks at evidence in trial coming in and decides no jury needed, he will try case. c. Rule 50(a)(1) i. Grant JMOL if 1. Reasonable people could not disagree in the result. d. Functional equivalent as summary judgment. e. Summary judgment evidence before trial JMOL evidence during trial f. Rule 50(a)(2) i. Can only move for JMOL after other side has been heard at trial. 2. Hypo: P has to show A,B,C, D, but cannot show C. Defendant moves for JMOL because cannot win without C. might get it. 3. Judge does not have to do it. ii. Rule ___ JNOV now called Renewed JMOL 1. Exactly the same as JMOL except that it comes up after trial 2. If granted RJMOL jury reached verdict reasonable people could not have reached. 3. Takes victory away from one party and gives it to other. 4. JMOL and RJMOL must be motioned by a party, court cannot do it out of blue. 5. If you did not move for JMOL at proper time at trial, then you waive RJMOL iii. Motion for new trial Rule 59 (a)

now some evidence saying P was not at fault now there is a dispute on material fact so must deny summary judgment.

1. 2. 3. 4. 5.

Judge must be convinced that something went wrong in first case that affected outcome. Can be based on anything that judge believes affected decision. Timing the same as RJMOL Court can do this on its own Less drastic/radical than RJMOL

11. Appeals a. Section (a) b. Final judgment rule i. Cannot appeal until trial court submits final judgment 1. Must wrap up all merits of the case. 2. To know if its final judgment ask, after making this order, does trial judge have anything to do on merits of the case? ii. If judge approves or denies RJMOL merits are done c. Section (b) i. Interlocutor 1. Not final 2. Usually cannot be taken on appeal except a. Statutes i. 1292 (a) 1. injunction ii. 1292 (b) 1. Allows TC and COA to agree that it should be appealed. b. FRCP i. 23 (f) 1. Rulings about class certification you can ask COA to review. ii. 54 (b) 1. Cases involving multiple claims or multiple parties. 2. Court will treat something as final if court decides c. Case law. i. Collateral order rule 1. Gives COA discretion to hear issues that are collateral to the merits. 2. Must be important legal questions. 3. Usually comes up when D claims immunity from suit. 12. Claim and Issue Preclusion a. Case 1 has gone to judgment and done. b. Case 2 is pending. c. When you see preclude, see whether they are talking about a specific part of the claim or whole claim. d. Question is does judgment from case 1 preclude us from litigating anything in case 2. i. Yes in 2 ways 1. Claim preclusion res judicata a. You get one law suit for a claim cannot sue more than once b. 3 requirement to dismiss i. Both cases are brought by the same claimant against same D. in same configuration. ii. Show that case 1 ended in a valid final judgment on the merits 1. How doe we know if something is on the merits? Rule 41(b) a. Everything is on the merits unless its based on jurisdiction, venue or indispensible parties. iii. Does case 1 and case 2 assert the same claim? 1. Split as to what claim means. a. Majority T/O b. Minority rule (primary rights) i. Different claim for every right invaded. (e.g personal injury different from property damage.)

c. Hypo: L and M driving own car and collide. Case #1 L sues M sues for personal injury. Case #2 L sues M for property damage from same crash. Under majority view both are same claim so dismissed under claim preclusion. In primary right jurisdiction do not dismiss because PI and PD are different claims. 2. Issue preclusion. Aka collateral estoppel a. Issue decided in case 1 b. Same issue comes up in case 2 c. There was an issue and that issue had been decided. d. Case 1 jury decides issues ABCD e. Case 2 raise XYZA issue a will be taken out because already decided f. Always start with claim preclusion g. Requirements i. Case 1 ended in a valid final judgment in the merits. ii. Same issue was litigated and determined in case 1 iii. Issue was essential in case 1 iv. Against whom can we use collateral estoppel? 1. Due process, can only use it against someone who was party in case 1 a. Party include people that were in privity (represented). v. By whom is it used? 1. Mutuality rule a. Can only be used by someone who was a party to case 1 b. Not required by due process c. Non mutual defenses i. Being used by someone in case 2 who was not part of case 1 used by defendant. d. Non mutual offenses i. Person using it in case 2 who was not part of case 1 used by plaintiff. h. You won a car and lend it to roommate. You are now vicariously liable for what is done. Roomate runs into car being driven by P. Case #1 P sues roommate goes to trial roommate wins. Case #2 P sues you for vicarious liability. No claim preclusion diff D. you want issue preclusion that P was negligent. Can you get this? i. Valid final judgment ii. Litigated same issue iii. Issue vital to judgment iv. Using it against P who was party in case 1 v. Being used by someone who was not party of case 1 and person using it is D 1. Nonmutual Defensive, most case say ok to use as long as P had chance to litigate in Case #1. You are given issue preclusion i. Hypo 2. Same as hypo 1. Case # 2 You sue P of case 1. Can you get collateral estoppel? i. First 4 requirements met ii. Non mutual you are plaintiff so non mutual offensive 1. Most courts say no. trend that would allow this as long as it is fair. Parklane a. ok if its fair. Court gives fairness factors but never said how to weight these. i. D in case 2 had full chance to litigate in case 1 ii. If D could foresee multiple litigations. Yes because D knew it was your car so should have expected it. iii. You could no have joined easily in case 1. iv. There are no inconsistent judgment on the record. If wreck would have been litigated a bunch of times and sometimes D is found negligent and others not. Then no go

e. Rule 15 amendments to pleadings i. Used to make sure case is tried on merit.