CIVIL PROCEDURE OUTLINE

1. Where can you sue?

- personal jurisdiction, federal subject matter jurisdiction

2. Who can you sue?

- personal jurisdiction, federal subject matter jurisdiction, joinder rules

3. How do you start a lawsuit in federal court?

- Complaint, FRPC 3 and 8(a), Notice FRCP 4, amending complaint, FRCP 15

4. How does defendant respond to the complaint?

- Answer and motions, FRCP 8(b) and 12

5. Has claim been precluded?

- claim preclusion; issue preclusion

6. Does federal or state law govern?

- Erie problem/choice of law

7. Discovery
- Discovery, FRCP 26-37

8. Policing the process

- FRCP 11

9. Are there grounds for a motion for summary judgment?

- FRCP 56

10. Is a jury required? If so, what issues does a jury decide?

- Seventh Amendment

11. Are there grounds for dismissal, directed verdict, new trial, or JNOV?
- FRCP 12(b)(6), 41, 50, 59, 60

12) What remedies may a court order?

- Injunctive relief, court of law/equity
A. DUE PROCESS

NOTES

5th Amendment – Federal due process clause

14th Amendment – State due process clause

- Due process is not rigid, it is a flexible standard that’s use is dependent on the situation at
hand

Matthews Test: How to tell if due process requires the state to provide more process
1. Private interest that will be affected by the action
2. The risk of erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards
3. The government’s interest, including the function involved and the fiscal and admin burdens
that the additional or substitute procedural requirement would entail

CASES

Joint Anti-Fascist Refugee Committee v. McGrath – The majority opinion interpreted due
process to require that the organizations be given the opportunity to be heard and to present their
evidence before being labeled pejoratively by the Attorney General

Goldberg v. Kelly – 14th Amendment – Plaintiffs welfare benefits were being terminated
without notice. The state held a hearing after the benefits had been terminated. The court held
that an evidentiary hearing before termination of welfare benefits is required to satisfy due
process. The person has the right to be heard in person, in writing is not enough

Matthews v. Eldridge – 5th Amendment – SSA determined that the plaintiff was no longer
eligible for disability benefits and cut them off. The court held that the plaintiff did not have a
right to a pre-termination hearing. SSA benefits are not essential, disability recipients are
not as vulnerable as welfare recipients to require benefits between the time they are
terminated and the post-termination hearing

Matthews Test: How to tell if due process requires the state to provide more process
1. Private interest that will be affected by the action
2. The risk of erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards
3. The government’s interest, including the function involved and the fiscal and admin
burdens that the additional or substitute procedural requirement would entail

Hamdi v. Rumsfeld – Hamdi was caught having ties to the Taliban and was detained in
Guantanamo indefinitely. The court held that Hamdi must be given notice and an
opportunity to rebut the charges. It is not required that Hamdi be given full due process
because doing so would raise national security concerns
 Matthews Test implicated in Hamdi
1. Private Interest – Hamdi’s liberty
2. Additional procedures included notice of charges, opportunity to rebut charges
3. Government Interest – keep enemy off battlefield, keeping Hamdi from informing the
enemy

B. Notice

NOTES

FRCP 4 – Governs summons; contents, issuance, service, and timeline

Jones v. Flowers – There must be what appears to be a sincere attempt to give notice

- Actual notice is not required

CASES

Jones v. Flowers – FRCP 4 and 14th Amendment – Jones had an agreement where he would
pay the bank and the bank would pay the taxes on his home. The bank did not pay the taxes and
the state sent a notice of delinquency to Jones by certified mail. The notice was returned
unclaimed. Then the state took the house. The court held that the government must take
additional measures when they know notice was improper. They must take such additional
measures that it seems that there was a sincere effort to give notice

C. Initiating Litigation

NOTES

Well Pleaded Complaint Rule – Twiqbal Standard – Facts in the complaint must prove that
cause of action is plausible not just possible (replaced Conley possible standard)

Complaints are subject to 12(b)(6): Motion to dismiss can be granted for failure to state a
claim for relief if they do not meet this standard

FRCP 15(c)(1)(c) – Amendments to Complaint (Singletary, Krupski)

15(c)(1)(c) Test: Can the plaintiff add a new party to the suit/change a party to the suit?
1. The new claim must have arisen in the original pleading
2. The newly named party must have received notice of the original action within 120 days
(now 90 days)
3. The new party will not be prejudiced in maintaining a defense on the merits
4. The new party must have known or should have known, but for the mistake, that the
action would have been brought against them in the first place.
CASES

Conley v. Gibson – FRCP 12(b)(6) – Conley Standard – Union representative was required to
fairly represent all employees but did not when a group of Black railroad workers lost their jobs
to their white counterparts. The court found that the complaint only has to be possible not
plausible. If there is any set of facts that could support the complaint, then the case can go
forward

Twiqbal Standard – FRCP 12(b)(6) – Iqbal alleged complaint against numerous federal
officials claiming that they adopted a policy of confinement on account of race, religion, or
national origin. He was detained as a high interest suspect in the months after 9/11. He filed a
lawsuit against former Attorney General Ashcroft and FBI Director Mueller who filed a 12(b)(6)
failure to state a claim motion. The court held that a complaint must allege sufficiently the
facts that, if taken as true, state a claim to relief that is plausible on its face in order to
defeat a motion to dismiss. Facial plausibility means that the facts alleged permit a
reasonable inference that the defendant is in fact liable

Singletary v. PA Department of Corrections – FRCP 15(c)(1)(c) – Prisoner committed

suicide while in prison and his mother filed suit against the corrections facility and some of its
employees. The mother tried to amend her complaint after the statute of limitations had run to
add a psychologist who had treated her son. The court held that the mother could not amend
her complaint because the psychologist did not share a lawyer with the prison, and was not
closely related enough to the prison guard/hierarchy to be implicated in the original claim

15(c)(1)(c) Test: Can the plaintiff add a new party to the suit/change a party to the suit?
5. The new claim must have arisen in the original pleading
6. The newly named party must have received notice of the original action within 120 days
(now 90 days)
7. The new party will not be prejudiced in maintaining a defense on the merits
8. The new party must have known or should have known, but for the mistake, that the
action would have been brought against them in the first place.

Krupski v. Costa Crociere - FRCP 15(c)(1)(c) – Plaintiff was injured on a cruise and all the
available information had a U.S. cruise company listed. The correct foreign cruise company took
advantage of the ambiguity and could have known that they were the intended defendant. The
court held that the plaintiff could amend their complaint to add the foreign cruise company
because it had received notice of the action, and was not prejudiced and defending on the
merits, because it had the same lawyer as the U.S. company. The foreign cruise company
knew or should have known that the action would have been brought against it, but for a
mistake concerning the proper parties identity because they had notice of the suit against
the U.S. company

D. Answers, Motions, and Affirmative Defenses

NOTES

FRCP 12(b)
 - Some 12(b) defenses (2, 3, 4, 5) must be raised before the answer or during the answer or
be waived (cannot be raised later)

- 1,6,7 can be raised at any time, but it is common to include them in the answer

E. Answers

NOTES

- Defendant must file an answer to the plaintiff’s complaint or they will lose by default

- Each averment must be answered except if defendant lacks sufficient knowledge, in

which case they say that they do not have enough info

- Admissions are binding at trial (more than evidence)

- If defendant denies something that is partially true, they can be penalized

FRCP 13 Transaction or Occurrence Test:

1. Are the issues of fact and law raised by the claim and counterclaim largely the same?
2. Would res judicata bar a subsequent suit on the D's claim absent the compulsory
counterclaim rule?
3. Will substantially the same evidence support or refute D’s claim as well as D’s counterclaim?
4. Is there any logical relation between the claim and the counterclaim?

FRCP 13 Counterclaims: When D brings claims against P

Compulsory Counterclaims: Claim arises out of the original transaction and does not require
adding another party the court doesn’t have jurisdiction over. THESE CLAIMS DO NOT
HAVE TO MEET THE 75K AMOUNT IN CONTROVERSY

Permissive Counterclaims: Any claim that is not compulsory. Not limited to the same
transaction. THESE CLAIMS MUST MEET THE 75K AMOUNT IN CONTROVERSY

FRCP Crossclaims: Claims against co-parties that relate to the original transaction (P against P
or D against D)

F. Maintaining Process Integrity

NOTES

- Primary motive for suing must be related to the law (Chaplin v. Dupont)

FRCP 11 requires that a complaint

● Be filed for a proper purpose
● Must have a sufficient basis in law
● Must have a sufficient basis in fact

Chilling Effect: Rule 11 drafters wanted to avoid chilling effect of discouraging lawsuits over
excessive sanctions, so implemented measures such as Safe Harbor Provision to provide
protections

Safe Harbor Provision (for sanctions): If you rescind your complaint within 21 after an
objection is raised, you will not be sanctioned. Rule 11(c)(2) [Judge can act unilaterally to raise
11c concern]

- Sanctions aren’t always monetary [can be ethics lessons, write an apology, etc]

CASES

Chaplin v. Dupont – FRCP 11(c) – Dupont workers were banned from displaying confederate
memorabilia at work. They filed suit for discrimination based on national origin, religious
affiliation, and race. Dupont argued that the worker’s attorney should be sanctioned because they
considered the lawsuit to be in “bad faith” and harassment. The court held that the attorney
could only be sanctioned for the frivolous religious and race discrimination claims because
those claims had no basis in law. The claims had no legitimate primary legal purpose

G. Discovery
NOTES

FRCP 26-37 – Rules of Discovery

- Discovery is the exchange of essential information

- FRCP 26(f): Initial discovery conference begins the discovery process, before the
required initial disclosures

- Information that is not privileged, is relevant and is proportional is subject to discovery

- Any information that is not disclosed during discovery cannot be used at trial

- Various Discovery Methods: depositions, interrogatories, exams, products of

documents, requests for admissions, informal discovery, expert witnesses

CASES

Oxbow Carbon v. Union Pacific R.R. – FRCP 26 and 37 – In an antitrust suit, the defendant
moved to have the plaintiff compelled to add their CEO as a party to search his records, arguing
that the CEO had relevant information to the case. FRCP 37 allows one party to compel
discovery. The court held that the CEO had to release his files as a part of discovery
because the information was relevant and the process of handing over the information was
proportional. The burden to pay for discovery was not shifted to the plaintiff because the
request to add was not unreasonable or overly burdensome under the FRCP 26 test below:

FRCP 26: Required Disclosures

1. Importance of the issues at stake
2. Amount in controversy
3. Parties’ relative access to the relevant information
4. Parties’ resources
5. The importance of the discovery in resolving the issues
6. Whether the burden or expense of the proposed discovery outweighs its likely benefit

H. Personal Jurisdiction

NOTES

FRCP 4(k)(1)(a): Federal Courts personal jurisdiction limits

FRCP 8(a)(1): Statement in the complaint stating court’s grounds for jurisdiction
FRCP 12(b)(2): Motion to dismiss based off a lack of personal jurisdiction

Personal Jurisdiction: The power a court has over a defendant (geographical limitations)

ORDER OF OPERATIONS: Courts must have long arm statutes that allow jurisdiction
● Two-step analysis: (1) does the state allow jurisdiction per their long arm statute? (2)
Does it comply with the US Const. Due Process Clause? (use international shoe)

- Each state has the right to adjudicate disputes within it's territorial boundary (federalism)

- Federal courts are limited to the jurisdictional area of the state in which they are situated

- Due process requires only that in order to subject a D to judgment in personam, if not
present in the forum, he have certain minimum contacts with it such that the maintenance
of the suit does not offend “traditional notions of fair play and substantial justice”

How to get personal jurisdiction under Pennoyer (presence = jurisdiction)

● Consent
● Attaching the property located within the state on the outset (lien or notice on title)
● Service in the state
● Agent in state
● Residence in state

Three types of Personal Jurisdiction :

1. in personam - Power over the D (attaches to the person)

2. in rem - Power over the D’s property (attached to the property)

 3. quasi in rem - based on the presence of the D’s property within the forum state, and it
permits the court to enter a judgment for an amount of money that may be satisfied from
the forced sale of the property- if property is damaged or destroyed, ability to recover
diminishes accordingly (destroyed by Shaffer v. Heitner)

General Jurisdiction: States can exercise jurisdiction if the D is domiciled or where a

company is incorporated, headquartered, or conducts so much business its at home there in
all claims against it

Specific Jurisdiction: states can exercise jurisdiction if D has minimum contacts in that state
such that “maintenance of the suit does not offend traditional notions of fair play and
substantial justice”

International Shoe Specific Jurisdiction TEST:

Minimum contacts - how connected are the parties to the state
Nexus - cause of action must arise out of or relate to the contacts
fairness - must be reasonable and fair that D will be sued in the state

Zippo Sliding Scale Framework (FOR INTERNET CONTACTS) – A state may operate
personal jurisdiction over a person outside of the state when that person directs electronic
activity into the state with a manifested intent of engaging in business or other interactions
within the state and that activity creates in a person within the state a potential cause of action
cognizable in the state’s court

Personal Jurisdiction Flowchart

CASES

Pennoyer v. Neff – NO PERSONAL JURISDICTION – Defendant did not live in OR and was
not in the state to be served. Plaintiff tried to serve via newspaper publication. OR courts
considered this notice and transferred the land to Mitchell. But property was not attached to the
lawsuit. Mitchell sold the land to Pennoyer. Neff sued to recover land. The court held that
notice was insufficient and the court did not have personal jurisdiction over Neff because
he was not in OR at the time of service and the property was not attached at the beginning
so no quasi in rem jurisdiction either

How courts exercise personal jurisdiction over nonresidents:

1. The defendant consents
2. The defendant’s property is attached at the outset of the case (in rem/quasi in rem)
3. The defendant is served while in the state (tag jurisdiction)
4. The defendant’s agent is served while in the state

Hess v. Pawloski – PERSONAL JURISDICTION – Defendant was from PA and caused an

accident in MA which injured the plaintiff(MA). The court held that the defendant consented
to personal jurisdiction by driving on the roads in MA. MA has a law that states that if
nonresidents drive on MA roads, they deem the registrar to be their agent for service of
action growing out of any automobile accident they are involved in within the state

International Shoe v. Washington – SPECIFIC PERSONAL JURISDICTION – The State

of WA sued International Shoe for failing to provide funds(taxes) for state unemployment fund.
International shoe was headquartered in MO, incorporated in DE, but had sales employees living
in WA and displayed products in WA stores, but did not own any property there. The court held
that a nonresident within a state can be subject to lawsuits in that state if there were a
minimum contacts. Presents must be continuous and systematic

International Shoe Test:

1. Minimum Contacts – how connected is the defendant to the state?
2. Nexus – The cause of action must arise out of or relate to the defendant’s contacts with
the state
3. Fairness – It must be reasonable and fair that the defendant could be sued in the state
o Fairness to the defendant
o State Sovereignty
o Fairness to the plaintiff

Perkins v. Benguet – GENERAL PERSONAL JURISDICTION – The defendant was a

Philippines company that moved to the US when the Philippines was occupied during World
War II. The court held that the state could exercise general personal jurisdiction over the
defendant, because they were essentially at home in the state, because all of their operations
had been moved there for the time being

McGee v. International Life Insurance Co. – One sale is enough to establish specific personal
jurisdiction

Worldwide Volkswagen v. Woodson – STREAM OF COMMERCE – Robinson family

bought a car from Seeway in NY and was moving to AZ; family injured in car accident in OK.
The family brought suit against two car manufacturers, a distributor, and the dealership they
bought the car from. The court held that the state did not have personal jurisdiction over the
distributor and the dealership. The dealership did not personally avail itself to OK, the car
ended up there by the mere unilateral activity of the Robinson family. Stream of commerce
alone in insufficient for specific jurisdiction, so the state could not exercise personal
jurisdiction over the distributor either

Walden v. Fiore – NO PERSONAL JURISDICTION – Defendant DEA agent stopped the

plaintiffs in GA airport as they were going to NV and suspected they had drug money, so DEA
seized it [was actually gambling winnings]. Plaintiffs tried to sue in NV. The court held that
NV could not exercise personal jurisdiction over the defendant because the DEA agent did
not have any connections with the forum state. The harm done was felt there, but his
contact was with the plaintiffs, not NV

Asahi Metal v. Superior Court of CA – Defendant’s conduct must be directed at the state in
order to create a sufficient basis for personal jurisdiction. It is not enough that they know their
products might end up in the state

J. McIntyre Machinery v. Nicastro – STREAM OF COMMERCE – U.K. company sold a

machine to a U.S. distributor, who sold the machine to Nicastro’s employer. Nicastro was injured
on the job and filed suit against U.K. company. Nicastro claimed the court had specific
jurisdiction because of the stream of commerce, argued one sale was enough, U.K. company
claimed there was none because the U.K. company had no minimum contacts with NJ. The
stream of commerce alone is not enough; if U.K. company operated in New Jersey, or was
targeted directly towards NJ maybe enough

- STREAM OF COMMERCE NOT ENOUGH TO EXERCISE PERSONAL

JURISDICTION OVER MANUFACTURER WITHOUT THEM SPECIFICALLY
TARGETING THE STATE

- THIS IS A PLURALITY OPINION – THE NARROWIST CONTRUCTION IS

THAT STREAM OF COMMERCE MIGHT BE ENOUGH SOMETIMES IF
THERE IS A FLOW OF SALES FROM THE DISTRIBUTOR TO RETAILERS
WITHIN THE STATE

Bristol v. BMS – BMS incorporated in DE. Principal place of business is NY, but has offices
and millions in sales in CA. Hundreds of plaintiffs filed a class action against BMS for drug side
effects they had in CA. BMS did not create the drug in CA, the drug was not sold to out-of-state
plaintiffs in CA or used by them in CA. Defendant argues that out of state plaintiff’s claims are
not connected to its conduct in CA. The court held that the claims of CA nonresidents must
arise out of the BMS’s contacts or within CA. Does not matter that nonresidents argue that
their claims are similar enough to the claims of the CA residents (arising out of the same
drug). Nonresidents cannot take advantage of the state courts for claims that do not arise
out of their contact with that state.

- NEXUS BETWEEN CO-PARTIES CLAIMS AND THE STATE IS NOT ENOUGH

TO WARRANT SPECIFIC JURISDICTION FOR PARTIES WHO DO NOT
HAVE THE NEXUS BETWEEN THEIR CLAIMS AND THE STATE
Ford Motor Co. v. Montana Eighth Judicial District – RELATES TO – Plaintiffs sued Ford in
MT for a car’s defect that caused injury. The car was not originally sold by Ford in MT. Ford
says this severs “arises out of” conduct with MT, cars were bought used. Ford had mechanics
and dealerships within that state, advertised the vehicle within MT (as they do everywhere else
“FORD TOUGH”). The court held that the cause of action must arise out of or relate to the
contacts that Ford has within the state. This was the first case to emphasize relates to part
of the clause. Ford sold the same product in the same state where the cause of action arose,
so the claim relates to Ford’s conduct within MT

- NEXUS CAN BE RELATE TO – THE CAUSE OF ACTION DOES NOT HAVE

TO ARISE OUT OF THE DEFENDANTS CONDUCT IN THE STATE, IT CAN
MERELY RELATE TO THE DEFENDANT’S OTHER CONDUCT WITHIN THE
STATE (SALES OF SIMILAR/SAME PRODUCTS)

Rao v. Era AK – ZIPPO SLIDING SCALE – Plaintiff flew on Defendant airlines in AK after
purchasing a ticket online in MD. Plaintiff’s suitcase was lost and they sued in MD because they
bought the tickets in MD. The court held that MD cannot exercise personal jurisdiction over
a defendant whose business is in AK when the cause of action does not arise from activities
that defendant directed at that state. Court used the Zippo Sliding Scale [analysis of how
passive (informative only)/interactive (responds to user) the website is, more interactive =
more likely personal jurisdiction can be established] is not very helpful here. D did not
advertise specifically to MD, and all actions that are relevant to the claim arose in AK, fact
that tickets bought in MD was not relevant to this at all.

- STATES CANNOT EXERCISE PERSONAL JURISDICTION OVER WHEN

THEIR INTERNET CONTACTS ARE NOT DIRECTED AT THE STATE

- ZIPPO SLIDING SCALE: PASSIVE WEBSITE ARENT DIRECTED, MORE

INTERACTIVE ARE MORE LIKELY DIRECTED

Shaffer v. Heitner – DEATH OF QUASI IN REM – Plaintiff (not a DE resident) brought a

shareholder derivative suit in DE against Greyhound executives, for acts that took place in
Oregon. Plaintiff filed a motion to sequester the shares of Greyhound stock owned by the
individual to compel them to defend in DE. Defendants moved to vacate on grounds that
sequestration violated due process rights and that property seized was not capable of attachment
in DE. The court held that when the minimum contact that is a substitute for physical
presence consists of property ownership, it must, like other minimum contacts, be related
to the litigation. This case killed quasi in rem.

Burnham v. Superior Court of CA – TAG JURISDICTION – Husband and Wife separated.

Husband stayed on the East Coast and wife and kids moved to CA. Husband traveled to CA for
work and went to visit family. While leaving CA, he was personally served in California. The
court held that service was proper and justified this finding by calling on the tradition of
personal service being adequate for personal jurisdiction. Some of the justices found that
personal jurisdiction could be fairly exercised because he personally availed himself to the
state over three days. Question is, where do we draw the line? How long can the defendant
be in the state before they can be served?

Daimler AG v. Bauman – Plaintiff alleged that Daimler committed various war crimes against
them in Argentina and sued in CA because that’s where Daimler’s US subsidiary was located.
(Daimler is an international company). It is an F Cubed Case (foreign D, foreign D, foreign
cause of action). The court held that there was no nexus so there could be no specific
jurisdiction or general jurisdiction since the company is not at home in CA. No jurisdiction
by agency because the extensive ties do not grant CA general jurisdiction over Daimler; it
is not at home there. Sotomayor Dissent: Daimler had so many sales around the world, so it
was hard to know where it was “at home.” Concerns over “Too big for general
jurisdiction”.

I. Venue

NOTES

28 U.S.C 1391
(b)Venue in General.—A civil action may be brought in—
(1) a judicial district in which any D resides, if all Ds are residents of the State in which the
district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the
claim occurred, or a substantial part of property that is the subject of the action is
situated; or
(3) if there is no district in which an action may otherwise be brought as provided in this
section, any judicial district in which any D is subject to the court’s personal jurisdiction
with respect to such action.

● Venue also has to follow Constitutional grounds (due process); must decide personal
jurisdiction first, then pick venue (it must be proper under 28 U.S.C. §1391)
● Forum non conveniens: Another forum can be picked for a court case if it is more
appropriate
● Improper venue is one of the 12(b) defenses. If not raised, it is lost.

FALLBACK PROVISION:
"which is triggered only if neither the party-based nor claim-based provisions identify an
appropriate district (as where, for example, the Ds are from different states and the events
giving rise to the claim occurred in a foreign country), the action may be brought in any
judicial district “in which any D is subject to the court’s personal jurisdiction with respect
to such action

CASES

Piper Aircraft Co. v. Reyno – Plane crash occurred in Scotland; all parties were from Scotland;
plane and its parts were manufactured in the U.S. - Parties tried to sue in U.S. for favorable U.S.
strict liability rules. The court held that the possibility of less favorable law to the defendant
should not be given conclusive or even substantial weight in the forum non conveniens
inquiry and should not bar dismissal of the lawsuit.

J. Allocating Power Between the Judge and Jury

NOTES

US Const. 7th Amendment: In suits at common law, where the value in controversy shall
exceed $20, the right of trial by jury shall be preserved and no fact tried by a jury shall be
otherwise re-examine in any Court of the United States, than according to the rules of the
common law

28 USC 1861: litigants are entitled to a trial by jury and have an obligations to serve as jurors

28 USC 1862: Discrimination prohibition (Cannot be kicked off a jury for race, color, religion,
national origin, or gender)

28 USC 1865: Qualifications

To qualify as a jury, a person must: be at least 18; lived in the jx for at least a year prior; read,
write and understand English; speak English; no physical/mental incapacities that prevent
participation, and they have not been charged with a crime

Traditional Two Courts: The two systems have since merged into one setting

Courts of Law – monetary relief

Courts of Equity – injunctive relief

Voir Dire is the process by which both sides can disqualify any unfair and biased jurors

- Challenge for Cause: Unlimited challenges for removal of potential jurors who cannot
be unbiased- can be because personal connection to case or pre-existing knowledge (If
you lost because of a biased jury, then it would be a due process issue)

- Peremptory Challenge: Limited challenges for removal of potential jurors. Challenger

does not give reason. Default in the federal system is THREE peremptory challenges.

Exception: Cannot specifically exclude people of color or women

Batson Inquiry: The party opposing the strike must show that the other party is trying to
strike a juror based on race or some other protected characteristic, the party striking must
provide a race neutral justification, then the court must rule if the strike was racially
based

Jury Nullification: Juries can ignore a part of the law or the entire law
Burden of Production: P must produce evidence for each element of the claim

Burden of Persuasion: P must convince the jury by a preponderance of the evidence

FRCP 56 Summary Judgment: Ruling as a matter of law can be motioned for any time up to
30 days after discovery concludes but before trial (P did not meet burden of production)

FRCP 50(a) Directed Verdicts: Ruling as a matter of law can be motioned for after D’s case or
after trial but before jury verdict

FRCP 50(b) JNOV: Ruling on a directed verdict motion after a verdict was read to get court’s
opinion- allows the court to have a jury decision in place if the case ends up being remanded on
appeal. MUST have motioned for a directed verdict prior to JNOV. If no motion for Directed
Verdict JNOV is forfeited.

- JNOV Reservation Mechanism: Legal Fiction: JNOV does not violate 7th Amendment
[right to jury/ jury independence] because an appellate court can have the jury verdict
reentered by the trial court if it finds the trial judge erred in granting JNOV

Remittitur: The judge asks the D agrees to take less than the full jury award or new trial

Additur: The judge asks the D agrees to take more than the full jury award or new trial

CASES

Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry – Respondents filed claim for
backpay after the union failed to represent them, causing them to be ultimately laid off.
Respondent wanted a jury trial, which Petitioner tried to strike. The court used a two-part test
to determine if a jury is required (1) would the claim be heard in a court of equity or a
court of law in 1771? (2) would the remedy be in equity(injunctive) or law(monetary)? This
case is more similar to an issue of trustee relationship, this is aligned with the court of law,
motion for jury should be allowed, otherwise this may raise 7th Amendment concerns. If
the two analyses conflict, go with what remedy is being sought.

I. FRCP 50 – Summary Judgment Trilogy (Celotex, Anderson, Matsushita)

Celotex Corp v. Catrett - The court granted Celotex’s motion for summary judgment against
Catrett because Catrett was unable to produce evidence that decedent had been specifically
exposed to Celotex’s asbestos products. Court of Appeals reversed, holding that Celotex’s failure
to support its motion with evidence tending to negate such exposure precluded the entry of
summary judgment in its favor. Catrett appealed again and the court held that Celotex must
only show that Catrett did not meet the burden, no need for specifics. It doesn’t have to
rely on depositions. It can rely on lack of evidence, pleadings, interrogatories

- THE PARTY MOVING FOR SUMMARY JUDGMENT DOES NOT HAVE TO

PROVIDE EVIDENCE THAT THE NONMOVING PARTY DOES NOT HAVE A
 CASE, THEY MERELY HAVE TO POINT TO THE ELEMENT THAT THE
NONMOVING PARTY HAS NOT PROVED

- TO SURVIVE SUMMARY JUDGMENT THE NONMOVING (HAS THE

BURDEN) MUST PROVE THAT THEY HAVE EVIDENCE ON EVERY
ELEMENT OF THEIR CASE

Anderson v. Liberty Lobby – FRCP 50(a) – Plaintiff was suing for libel, according to the
substantive law, the plaintiff had to show that the defendant was malicious, proven by clear and
convincing evidence. The issue in this case was whether that higher burden of proof at trial
affected how the evidence was evaluated, for sufficiency, at the summary judgment stage. The
court held that the standard for summary judgment “mirrors the standard for a directed
verdict” under FRCP 50(a). When the standard of proof on an element would be higher at
trial, the judge should incorporate that into the summary judgment inquiry, to wit:
whether a reasonable jury could find the evidence of x to be clear and convincing?

- THE SUMMARY JUDGMENT STANDARD MIRRORS THE STANDARD FOR

A DIRECTED VERDICT

Matsushita Electric Industrial Co v. Zenith Radio Corp – FRCP 50(a)(1) – The Court ruled
that “where the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial

- SUMMARY JUDGMENT IS PROPER WHEN A REASONABLE JURY COULD

NOT FIND FOR THE NONMOVING PARTY FRCP 50(a)(1)

II. FRCP 50 Summary Judgment Video Cases

Scott v. Harris (Car chase) – The court held that Harris’s “version of events is so utterly
discredited by the record that no reasonable jury could have believed him.” If a video is present
this might change the outcome of summary judgment motion.

Dissent: Stevens finds that the video should not preempt the court from trying the issue because
it does not show that there is no factual dispute at hand

Tolan v. Cotton – Summary judgment may only be granted when the evidence, viewed in the
light most favorable to the non-movant, establishes that the movant is entitled to judgment as a
matter of law. For the purposes of a motion for summary judgment, the evidence of the non-
movant is to be believed, and all justifiable inferences are to be drawn in his favor

Plumhoff v. Rickard – The district court denied motion for summary judgment because they
found material dispute. SCOTUS reversed, finding no material dispute based on video evidence

BUT… Video evidence cannot actually “speak for itself”

- Depends on physical factors: lighting, angles, image quality, etc.
 - Depends on viewer’s background how video will be interpreted: culture, politics,
ideologies, religion, etc.

III. FRCP 50(b) JNOV

Mattivi . South African Marine Corp – FRCP 50(b) JNOV – Plaintiff allegedly slipped on
spilled oil and was injured, and sued the boat owner for damages. Trial Court granted JNOV
after jury found for plaintiff; court of appeals affirmed. Trial court should grant a JNOV only
when (1) there is such a complete absence of evidence supporting the verdict that the jury's
findings could only have been the result of sheer surmise and conjecture, or (2) there is
such an overwhelming amount of evidence in favor of the movant that reasonable and fair
minded men could not arrive at a verdict against him.

K. Remedies

NOTES

FRCP 64: Allows fed court to integrate state remedies which grant provisional relief - with the
purpose of preventing D from getting rid of assets

FRCP 65: Injunctions and restraining orders

Provisional Relief – Preliminary Injunction

- Preventive injunction: prevents future wrongs (Walgreens, Winters)

- Reparative injunction: attempts to alleviate the effects of a past wrong

- Structural injunction: commits judicial resources to bring about institutional reform

(Brown v. Plata)

- Consent Decree: Contracts drafted by both parties in a suit, which is approved and
enforced by courts. Allows parties to reach best solution; violations are treated with
contempt hearings and sanctions

Preliminary Injunction Test (SLIDING SCALE) (Winters)

(1) they were likely to succeed on the merits,
(2) they would suffer irreparable harm if injunctive relief were not granted,
(3) the balance of equity tips in their favor, and
(4) the injunction is in the public’s interest.

Final Relief - Permanent Injunction

Permanent Injunction Test (SLIDING SCALE) (Walgreens, Brown v. Plata)

(1) irreparable injury
(2) money damages not good enough,
(3) balances of equities, considering balance of hardships
(4) public interest is not disserved

CASES

Winters v. Natural Resources Defense Council Inc – PRELIMINARY INJUNCTION –

Plaintiff sued the Navy for using sonar in their training and claimed that sonar causes injury to
aquatic animals and that this impedes their ability to enjoy and study the animals. The court
granted plaintiff’s request for a preliminary injunction imposing restrictions on the navy’s
training. SCOTUS granted cert to determine if the injunction should have been allowed.
SCOTUS held that plaintiff did not meet the requirements of the preliminary injunction
test. Plaintiff did not prove irreparable harm, even if it had the balance of equity is in the
Navy’s favor.

Preliminary Injunction Test (SLIDING SCALE)

(1) they were likely to succeed on the merits,
(2) they would suffer irreparable harm if injunctive relief were not granted,
(3) the balance of equity tips in their favor, and
(4) the injunction is in the public’s interest.

Walgreen Co. v. Sara Creek Property Co. – PERMANENT INJUNCTION -

Plaintiff(pharmacy) signed a lease with defendant(mall). The lease included a clause to not lease
to any vendor with a pharmacy component. Defendant was going to renege on this by allowing a
“deep discount” chain that contains a pharmacy the same size as the Walgreen pharmacy.
Plaintiff motioned for injunctive relief instead of damages, to retain the clause of their contract.
The court held that plaintiffs are required to show that damages are inadequate based on
difficulty calculating them. Too hard to calculate damages. It gave plaintiff a permanent
injunction because it is an easier process. Assumes parties may negotiate after the fact if
they don’t like permanent injunction.

Permanent Injunction Test (SLIDING SCALE)

(1) irreparable injury
(2) money damages not good enough,
(3) balances of equities, considering balance of hardships
(4) public interest is not disserved

Brown v. Plata – PERMANENT INJUNCTION – Plaintiff sued for overcrowded CA prison

system over 14th Amendment issue, nearly 200% overcapacity, limiting healthcare, increasing
violence, disease, and suicide. District Court ruled injunctive relief for plaintiff, ordering CA to
reduce overcrowding to 134% Defendant appealed for public safety concerns. The court refuted
public safety concerns over expert testimony on safe releases. A federal court may impose
limits on the overcrowding of prisons to remedy a violation of prisoners' Eighth
Amendment rights when the state is violating 14th Amendment. Inquiry necessarily
involves difficult predictive judgments regarding the likely effects of court orders, they
must be made when courts fashion injunctive relief to remedy serious constitutional
violations

L. Subject Matter Jurisdiction

NOTES

Subject Matter Jurisdiction: Power of the court to hear certain types of cases

- States and Federal courts sometimes have concurring subject matter jurisdiction

- Once it attaches, the court cannot lose it

FRCP 8(a)(1): statement in the complaint stating court’s grounds for jurisdiction

FRCP 12(b)(1): motion to dismiss for lack of subject matter jurisdiction (can be raised by the
court or the parties at any time during litigation)

Article III §2 –

The judicial Power shall extend to all Cases … arising under this Constitution, the Laws of
the United States, and Treaties made, or which shall be made, under their Authority …
between a State and Citizens of another State,—between Citizens of different States, … or the
Citizens thereof, and foreign States, Citizens or Subjects.

28 USC §1331: Federal Question: All civil actions arising under the constitution, the laws of
the US, or Treaties

- Anticipated defenses cannot be used to establish subject matter jurisdiction (Louisville &
Nashville R.R. Co v. Mottley)

- The case must involve a federal question on the face of a well pleaded complaint

- ****Test for federal subject matter jurisdiction is called “well-pleaded

complaint”*** = a complaint that contains the allegations essential to stating the P’s
claim without any surplusage such as anticipated defenses.

28 USC § 1332: Diversity of Citizenship: Cases between citizens of different states, citizens
of a state and citizens or subjects of a foreign state, citizens in which citizens/subjects of a
foreign state are additional parties and a foreign state and citizens of a state or different states
and where the amount exceeds $75,000

- Purpose is to prevent bias from state judges against nonresidents of a state

- There must be complete diversity (P and D do not share state residency, you can have
two D’s from same state)
 - Exceptions: domestic relations, congressional alternation, foreign citizens

- Plaintiff can aggregate claims (related or not) against a single defendant to meet 75K
amount in controversy

- Plaintiff cannot aggregate claims against different defendants to meet 75K amount in
controversy

- Domicile for Corporations - Principal Place Business, Inc.

- Domicile for Individuals - where the person lives and intends to reside indefinitely

28 USC § 1441: Removal of a Suit: Ds can remove the case from state court to federal court
before 30 days, unless the case was brought in the D’s home state (because no basis for hostile
state bias against D). 30 days starts from the service of the complaint.

28 USC § 1367: Supplemental Federal Subject Matter Jurisdiction:

(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by
Federal statute, in any civil action of which the district courts have original jurisdiction,
the district courts shall have supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction that they form part
of the same case or controversy under Article III of the United States Constitution.
Such supplemental jurisdiction shall include claims that involve the joinder or
intervention of additional parties.
(b) In any civil action of which the district courts have original jurisdiction founded solely on
section 1332 of this title, the district courts shall not have supplemental jurisdiction under
subsection (a) over claims by Ps against persons made parties under Rule 14, 19, 20,
or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be
joined as Ps under Rule 19 of such rules, or seeking to intervene as Ps under Rule 24
of such rules, when exercising supplemental jurisdiction over such claims would be
inconsistent with the jurisdictional requirements of section 1332.
(c) The district courts may decline to exercise supplemental jurisdiction over a claim under
subsection (a) if—
(1)the claim raises a novel or complex issue of State law,
(2)the claim substantially predominates over the claim or claims over which the
district court has original jurisdiction,
(3)the district court has dismissed all claims over which it has original jurisdiction, or
(4)in exceptional circumstances, there are other compelling reasons for declining
jurisdiction.
(d) The period of limitations for any claim asserted under subsection (a), and for any other
claim in the same action that is voluntarily dismissed at the same time as or after the dismissal
of the claim under subsection (a), shall be tolled while the claim is pending and for a period of
30 days after it is dismissed unless State law provides for a longer tolling period.
 (e)As used in this section, the term “State” includes the District of Columbia, the
Commonwealth of Puerto Rico, and any territory or possession of the United States.

- 1367(a) District courts shall have supplemental jurisdiction to hear claims that are closely
related to the same case; can include claims that involve the joinder and intervention of
additional parties

- 1367(b) If basis for jurisdiction is diversity of citizenship, the district courts does not
have supplemental jurisdiction over claims by plaintiffs against persons made parties
under Rule 14, 19, 20, or 24

- 1367(c) Courts can opt to not exercise jurisdiction

- Important point: If defendant has counterclaim against in case where it is based on

diversity jx, it does not matter that D’s counterclaim is less than 75K and it can work
under 28 USC 1367(b) because it is not a plaintiff making a claim to a third party
defendant.

Practice Supplemental
CASES

Louisville & Nashville R.R. Co v. Mottley – BEFORE USC 1367 – Mottley was hurt on
defendant’s train, received free tickets for life in return for not suing. Defendant reneged 35yrs
later after Congress passed a law against free transportation passes, Mottley brought a breach of
contract claim in federal court. Court used 28 USC 1331 to remand this {A narrower
interpretation than Article 3} Contract law is a state court matter, so no federal subject
matter jurisdiction. The plaintiff’s anticipation that the defendant may use a federal law as
a defense does not establish subject matter jurisdiction

Grable v. Darue Engineering – BEFORE USC 1367 – IRS seized property for non-payment of
tax; Plaintiff argued that land seizure and sale violated due process since service of process was
personal service instead of certified mail. It was a state-law claim regarding the title; but action
of the claim arose out of federal law regarding service. The court ruled that the federal courts
did have subject matter jurisdiction to hear the case because the state law question arose
from federal issues related to IRS

When a state-law claim implicates a significant federal issue, federal court may
exercise subject matter jurisdiction if:
1. The issue is actually disputed
2. and substantial,
3. and jurisdiction can be exercised without disturbing any congressionally approved
balance of federal and state judicial responsibilities

Merrell Dow v. Thompson – BEFORE USC 1367 – Plaintiffs had negligence claim in state
law that is based on violation of a federal duty. Claim was negligence per se because they violate
the labeling requirement under the Food Drug and Cosmetic Act. The federal law itself did not
provide a cause of action. Remedy was not provided by the federal statute. The court held that
fact that congress did not offer a federal remedy or federal cause of action meant that they
intended for it to be at the state level. So the federal courts did not have subject matter
jurisdiction

Ceglia v. Zuckerburg – Plaintiff wanted to sue Zuck in NY state court where he used to be
domiciled. Zuck claims he is now domiciled in CA. Court ruled various factors play a role in
determining where a party is domiciled: current residence, voting, associations,
employment, licenses, taxes, etc. All these pointed to Zuck being domiciled in CA.

United Mine Workers of America v. Gibbs – BEFORE USC 1367 – A coal mine laid off 100
miners of a union, then hired another company. Gibbs was hired to re-open the mine which was
contracted to haul the coal. Laid off union members forcibly prevented the opening of the second
mine. Gibbs lost his job and sued the union under federal and state law. The court held that
federal court can exercise supplemental jurisdiction over state and federal claims if the
federal and state claims are the type that would be expected to be heard at a single hearing
and “derive[d] from a common nucleus of operative fact.” Rooted in the same facts, same
evidence, it's more efficient to bring two claims together.

Owen Equipment & Erection Co. v. Kroger – BEFORE USC 1367 – Plaintiff’s husband (IA)
was killed when a steel crane owned by OPPD (NE) electrocuted him. Plaintiff sued OPPD.
OPPD then impleaded (FRCP 14) Owen Equipment (IA). Plaintiff then sued Owen Equipment.
OPPD was dismissed from the lawsuit, leaving Kroger (IA) v. Owen (IA). SCOTUS held that
the federal courts did not have subject matter jurisdiction because after it became
apparent that Owen Equip was from IA diversity was contaminated. Legislature has not
taken action to change this standard from 1332, so we will continue expecting complete
diversity for supplemental jurisdiction. This would’ve allowed plaintiff to circumvent full
diversity requirement.

Exxon v. Allapattah Services – AFTER USC 1367 – STARKIST CASE – Girl was injured by
Starkist (75k claim), her family joined in suit under FRCP 20 – the family’s claim was under
75k. The court held that where there is diversity and one plaintiff meets the amount in
controversy (75K), the federal courts can exercise subject matter jurisdiction over the
other plaintiff’s claim, even if it doesn’t meet the amount in controversy, so long as it arises
from the same case or controversy. (Article III).

1367(b) Hypothetical:
P1(girl has 75K+ claim) + P2 (family does not have 75K+ claim) v. D1 (Starkist) + D2 (CanCo)

- Ps cannot claim against CanCo because 1367(b) does not allow for subject matter
jurisdiction over claims that plaintiffs bring against parties added under FRCP 14, 19, 20,
or 24

M. Litigation Involving Multiple Claims & Parties

NOTES

FRCP 20: Permissive Joinder of Parties

Requires that persons joining or joined in an action have rights arising out of the same
transaction, occurrence, or series of transactions and occurrences and that there be a
common question of law or fact

FRCP 20(b): permits the court to separate parties for purposes of trial or otherwise

Transaction or Occurrence Test: (USEFUL FOR FRCP 13 and 20) (Cooper)

1. Are the issues of fact and law raised by the claim and counterclaim largely the same?
2. Would res judicata bar a subsequent suit on D’s claim absent the compulsory counterclaim
rule?
3. Will substantially the same evidence support or refute plaintiff’s claim as well as defendant’s
counterclaim?
4. Is there any logical relation between the claim and the counterclaim?

FRCP 21: Misjoinder and Nonjoinder of Parties (Cooper)

Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court
may at any time, on just terms, add or drop a party. The court may also sever any claim against a
party. “As are just”

FRCP 14: Requirements of Impleader (Gross, Olavarrieta)

1. Claim against a nonparty to the case
2. Has to state a claim against the new party, not enough to say, “I’m not responsible, x is”
Defendant must have a theory of liability against the nonparty.
3. Theory of liability against nonparty must be “for all or part” of the claim against the
defendant

***Impleader Test: If D is held responsible, then the third party is responsible to D.

FRCP 18(a): Joinder of Claims

A plaintiff can include as many claims against the defendant as they want, even if they are
unrelated
- Goals of convenience, efficiency, and fairness
- If you don’t bring up all your potential causes of action that arise from the same
transaction res adjudicata may preclude you

FRCP 19 Necessary and Indispensable Parties Test (Temple, Daynard)

1. Is the party necessary? 19(a)
In the person's absence, the court cannot accord complete relief among existing parties
2. Is the party indispensable? 19(b)
That person claims an interest relating to the subject of the action and is so situated that
disposing of the action in the person’s absence may impair or impede the person’s ability to
protect the interest or leave an existing party subject to substantial risk of incurring multiple,
double, or otherwise inconsistent obligations because of the interest
**All indispensable parties are necessary, but not all necessary parties are indispensable

Necessary and Indispensable Parties Rules of Thumb

- Joint tortfeasors are not necessary parties because full relief can be had from any of the
parties. Thus, by definition, they may not be indispensable.

- Co-obligors [to a contract] maybe necessary parties, but generally are not indispensable.

- As a general rule, and action to set aside a contract requires the joinder of all parties to
that contract.

FRCP 24: Intervention (Northern Indiana)

Requirement for Intervention under FRCP 24 (ALL 4 REQUIRED TO INTERVENE)
1. Timely application
2. An interest relating to the property or transaction which is the subject of the action
3. That the disposition of the action may as a practical matter impair or impede his ability to
protect that interest
4. That the interest is not adequately represented by existing parties

If a party is successful under Rule 24(a), they become a party to the case.
- Have rights on appeal
- If one of the main parties is dismissed, the case will continue

Permissive Intervention: FRCP 24(b) – easier standard but person is not a party to the case

FRCP 42(b): allows a judge to separate claims for trial for reasons of convenience, avoiding
prejudice, and economy

CASES

Cooper v. Fitzgerald – FRCP 20(a) and 21 – TRANSACTION OCCURRENCE TEST –

Seven plaintiffs joined in suit to compel action in their outstanding immigration applications.
The defendant alleged that because of the dissimilarity of the plaintiff’s claims, they do not
satisfy the FRCP 20(a) test for permissive joinder because the plaintiff’s claims do not arise out
of the same transaction or occurrence and lack a common question of law or fact. The court
found that the plaintiff’s claims were not sufficiently similar to be properly joined under FRCP
20(a) because applications were at different stages and were delayed for different reasons. A
court may sever a party from other parties pursuant to FRCP 21 if the parties are improperly
joined under FRCP 20(a)

Transaction or Occurrence Test: (USEFUL FOR FRCP 13 and 20)

5. Are the issues of fact and law raised by the claim and counterclaim largely the same?
6. Would res judicata bar a subsequent suit on D’s claim absent the compulsory
counterclaim rule?
 7. Will substantially the same evidence support or refute plaintiff’s claim as well as
defendant’s counterclaim?
8. Is there any logical relation between the claim and the counterclaim?

Gross v. Hanover Ins. Co. – FRCP 14 – Plaintiff filed an insurance claim with defendant
because his jewelry was stolen while in the possession of a jewelry store owned by Rizzo. The
insurance company implead the Rizzo bros as third party defendants. The insurance company
alleged that the Rizzo’s owed them if they owed plaintiff. The court held that a court may
allow a defendant to bring in an outside party who may be liable to the defendant for the
claims against him.

- FRCP 14 Impleader Test: If D is held responsible, then the third party is

responsible to D.

U.S. v. Olavarrieta – FRCP 14 – U.S. had to pay for student who defaulted on student loans
and they sued the kid. He wanted to add as a third party board of regents/university of Florida for
breach of contract by failing to give him J.D. The court held that impleader violated FRCP 14
because his claim against university was not dependent upon the outcome of the main claim
and it was a separate and independent claim even though the claim arises out of the same
general set of facts as the main claim. Plaintiff defaulting has nothing to do with whether
the university is liable to him.

US v. Northern Indiana Public Service Co., et al. – FRCP 24 – United States sued defendant
to prevent development on sand dunes. After news that the U.S. was trying to settle, Save the
Dunes Council (the Council) filed a motion to intervene as a plaintiff under FRCP 24. NIPSCO
motioned to strike this. The United States never filed a response to the Council’s motion to
intervene. The Court denied permissive intervention because Save the Dunes did not have a
protectable legal interest served by intervention and intervention would now lead to undue
delay and prejudice to the rights of the original parties

FRCP 24 Intervention Test

1. Timely application
2. An interest relating to the property or transaction which is the subject of the action
3. That the disposition of the action may as a practical matter impair or impede his ability to
protect that interest
4. That the interest is not adequately represented by existing parties

Temple v. Synthes Corp – FRCP 19 – Plaintiff (MS resident) underwent surgery in a LA

hospital, device was manufactured by defendant. One of the device's screws broke off inside
plaintiff’s back after surgery. Plaintiff filed suit against the manufacturer in federal district court
for improper manufacturing and against the hospital and filed a complaint in state court against a
doctor who performed the surgery. He sued the doctor in state court of LA.
Defendant(manufacturer) moved to dismiss the federal claim, arguing that the plaintiff had failed
to join the doctor and hospital as necessary parties pursuant to FRCP 19. The district court,
citing judicial economy, ordered the plaintiff to join the doctor and hospital within 20 days. On
appeal, the court held that it is not necessary for all joint tortfeasors to be named as
defendants in a single lawsuit because joint tortfeasors are merely permissive parties.

FRCP 19 Necessary and Indispensable Parties Test

3. Is the party necessary? 19(a)
In the person's absence, the court cannot accord complete relief among existing parties
4. Is the party indispensable? 19(b)
That person claims an interest relating to the subject of the action and is so situated that
disposing of the action in the person’s absence may impair or impede the person’s ability to
protect the interest or leave an existing party subject to substantial risk of incurring multiple,
double, or otherwise inconsistent obligations because of the interest
**All indispensable parties are necessary, but not all necessary parties are
indispensable

Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A. – FRCP 19 – Plaintiff advised
SC and MS defendants on smoking laws. Was promised 5% of attorney’s fees. The defendants
never paid and plaintiff sued. SC defendants motioned for FRCP 12(b)(7) failure to join an
indispensable party stating that the MS defendant not in the suit made the promise, was therefore
indispensable. The court held that the MS defendant was not necessary. Full relief could be
had by the SC defendants because the agreement was made on behalf of all the defendants

N. Finality and Preclusion

NOTES

Res Judicata: Prevents successive litigation from suits arising from the same event (includes
claim and issue preclusion

Claim Preclusion: prevents plaintiffs from litigating successive suits against a defendant for
claims arising out of the same occurrence/transaction (SAME CLAIM)

● Operates to foreclose only those issues that were actually litigated and resolved in the
prior action
○ Balances everyone having their day in court with need to prevent further
relitigation

● “same claim” – the broader the definition, the more inclusion we are going to mandate at
the time of litigation, and the more preclusion that will follow for matters that are left out

FRCP 8(c) Claim Preclusion Test

To make defense of claim preclusion made under FRCP 8(c), three elements must be shown:

1. A prior suit that proceeded to a final valid judgment on the merits (aka not jx dismissal)
2. The present suit arises out of the same claim as the prior suit
3. The parties in both suites are the same, or in privity
Stare Decisis: courts typically follow their precedents but have the ability to change their mind
in future litigation
Privity: When a party has “substantial control” (basically party but just not in name) over the
case or “virtual representation”. Virtual representation exists if
(1) the nonparty has interests identical to parties in the earlier case,
(2) the nonparty also had actual or constructive notice of the earlier case, and
(3) the balance of equities favors barring the nonparty’s later claim.

Issue Preclusion: prevents a party from relitigating an issue that was resolved in a previous
lawsuit or administrative proceeding, even if the issue relates to a different claim. 4 Factors to
consider (From Restatements)

Issue Preclusion Test

1. Issue actually litigated (whether it was something people were fighting about or just
conceded to it or stipulated to it, doesn’t require evidentiary hearing)
2. Essential to judgment (did you have incentive to fight this question)
3. Valid final judgment
4. * No Preclusion if you haven’t had a day court DPC

Offensive v. Defensive

Offensive
- precludes a D from relitigating an issue that it lost in earlier litigation against a different P

- P brings a claim against D and says D lost on this issue in the past so they must lose on it
now

- May be unfair to the defendant

- If first action is for nominal damages, D might not put up a vigorous defense
- There may be multiple inconsistent judgements against and for the D
- The second action could afford D procedural opportunities unavailable in the first action
- Whether the plaintiff could join in the prior action (anti Wait-and-See)

Offensive Issue Preclusion Test

(1) The plaintiff could not easily have joined in the earlier action and
(2) Use of the judgment will not result in unfairness to the defendant (procedural
opportunities).

Defensive (Jarosz, Blonder)

- Precludes a P from relitigating identical issues by merely “switching adversaries”
- Gives P a strong incentive to join all potential defendants in the first action if possible

O.J. case (helps illustrate issue preclusion)

CASE 1: NOT GUILTY (CRIMINAL)

 - beyond a reasonable doubt. Highest standard of proof.
CASE 2: LIABLE for Civil damages for wrongful death
- Preponderance of the evidence. Lowest standard of proof.
- If he had been found guilty of beyond reasonable doubt in criminal case, no reason to
argue he would not be found guilty here. He could be precluded from arguing that he
didn’t murder them
- Case with lower standard of proof is not precluded
CASE 3: CUSTODY CASE
- Parent gets to keep the kid unless there is clear and convincing evidence they cannot
provide. Middle standard of proof.

CASES

Car Carriers, Inc. v. Ford Motor Co – FRCP 8(c) – CLAIM PRECLUSION – Plaintiff
alleged that defendant was engaging in Antitrust behavior to raise prices. District Court
dismissed the action said Antitrust claim was lacking because the plaintiff failed to suffer the
appropriate harm in 1982. In 1983, they brought more state claims and different fed claim over
same dispute. Plaintiff argued that Court should consider a rights-based issue preclusion test.
The court held that the case cannot be relitigated because it was previously decided under
the doctrine of res judicata. Even though new information was found, res judicata still
applies. Arises from the same underlying facts. Court rejected alternative rights-based test.

FRCP 8(c) Claim Preclusion Test

1. A prior suit that proceeded to a final valid judgment on the merits (aka not jx dismissal)
2. The present suit arises out of the same claim as the prior suit
3. The parties in both suites are the same, or in privity

Gonzalez v. Banco Central Corp – CLAIM PRECLUSION – The Rodriguez plaintiffs sued
defendant for fraud (selling swampland) and lost. Before losing, Rodriguez tried to get the
Gonzalez plaintiffs involved, Court said no. The Gonzalez plaintiffs sued the same defendant and
their complaint mimicked a proposed amended complaint of the Rodriguez suit. Both sets of
plaintiffs had the same counsel. The district court dismissed the Gonzalez plaintiff’s suit on the
grounds of res judicata because it held that the parties were in privity. On appeal, the court
held that the Gonzalez plaintiffs could bring their claim because the parties were not in
privity because they did not have substantial control over the original action.

FRCP 8(c) Claim Preclusion Test

1. A prior suit that proceeded to a final valid judgment on the merits (aka not jx dismissal)
2. The present suit arises out of the same claim as the prior suit
3. The parties in both suites are the same, or in privity

Jarosz v. Palmer – DEFENSIVE ISSUE PRECLUSION – Plaintiff and partners hired

defendant, an attorney, to acquire a company. After they acquired the company, plaintiff and the
partners had a falling out, and plaintiff was fired. Plaintiff sued the partners. Defendant was the
attorney for the partners and company in this suit. Plaintiff moved to disqualify defendant based
on conflict of interest because defendant had represented plaintiff when he and the partners
acquired the company. The judge denied plaintiff’s motion and found that plaintiff did not show
an attorney-client relationship existed between him and defendant during the acquisition.
Plaintiff then filed a separate suit against attorney for breach of contract, breach of fiduciary
duty, and malpractice. Defendant argued that the judge’s decision precluded plaintiff from
relitigating this issue. The court held that issue preclusion does not bar a party from
litigating an issue that was previously litigated by the party in an earlier case if the issue
was not essential to the judgment on the underlying claim in the prior case. Here the issue
was actually litigated, but it was not essential to the original judgment it was just corollary,
thus it could not be precluded/estopped

Issue Preclusion Test

1. Issue actually litigated (whether it was something people were fighting about or just
conceded to it or stipulated to it, doesn’t require evidentiary hearing)
2. Essential to judgment (did you have incentive to fight this question)
3. Valid final judgment
4.* No Preclusion if you haven’t had a day court DPC

Parklane v. Shore – OFFENSIVE ISSUE PRECLUSION

Facts: Plaintiff (stockholders) sued defendant on the basis of SEC v. Parklane, a lawsuit finding
that defendant issued false statements. Plaintiff argued that because defendant was found liable
in first case, issue preclusion should preclude the relitigation of the case and the defendant
should be found liable automatically. The court held that plaintiffs can use offensive estoppel
provided that (1) they could not easily have joined in the earlier action and (2) use of the
judgment will not result in unfairness to the defendant (procedural opportunities). The
court does not want to encourage Wait & See Litigation. If you could’ve joined the first
plaintiff, and didn’t you might not get to benefit from collateral estoppel. Offensive
estoppel does not apply here because 1) P was not allowed to join in SEC case. 2) in light of
the serious allegations against D in SEC’s complaint, as well as the foreseeability of future
private suits, D had every incentive to defend itself fully. Judgment in first case was not
inconsistent with previous decisions, no procedural opportunities available in second
proceeding, not available in first

Issue Preclusion Test

1. Issue actually litigated (whether it was something people were fighting about or just
conceded to it or stipulated to it, doesn’t require evidentiary hearing)
2. Essential to judgment (did you have incentive to fight this question)
3. Valid final judgment
4.* No Preclusion if you haven’t had a day court DPC

Offensive Issue Preclusion Test (MAIN TEST USED IN CASE)

(3) The plaintiff could not easily have joined in the earlier action and
(4) Use of the judgment will not result in unfairness to the defendant (procedural
opportunities).

Blonder Tongue Lab v. University of Illinois Foundation – DEFENSIVE ISSUE

PRECLUSION – Plaintiff argues they have a patent over generic popular device. Plaintiff sues
first defendant arguing that they were using the device without patent. Plaintiff lost because there
was no actual patent. In the second suit, Plaintiff sues a new defendant with same claim of patent
breach. The court rules the same way. Plaintiff keeps on suing person after person (getting bite at
the apple over and over). The Court said we are not going to allow you to litigate same issue
over and over. The second defendant could have argued that the plaintiff was precluded
from bringing the same issue up in court. Plaintiff had their day in court.

Issue Preclusion Test

1. Issue actually litigated (whether it was something people were fighting about or just
conceded to it or stipulated to it, doesn’t require evidentiary hearing)
2. Essential to judgment (did you have incentive to fight this question)
3. Valid final judgment
4.* No Preclusion if you haven’t had a day court DPC

O. Choice of Law

28 USC § 1652: Laws except where federal statute or the constitution says otherwise, shall be
regarded as rules of decisions in civil action in US courts

28 USC § 2072: Rules Enabling Act: Supreme Court shall have the power to create general
rules of practice and procedure and rules of evidence for cases in the United States district courts
(including proceedings before magistrate judges thereof) and courts of appeal; Such rules shall
not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall
be of no further force or effect after such rules have taken effect.

Art. VI of U.S. Const : This Constitution, and the laws of the United States which shall be made
in pursuance thereof; and all treaties made, or which shall be made, under the authority of the
United States, shall be the supreme law of the land; and the judges in every state shall be bound
thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

- Erie only applies when claims are in federal court based on supp jx or diversity jx

- Federal Courts must apply state law in cases concerning state law (substantive law);
Otherwise use the flowchart

- Essential Character of Fed Courts – a procedure/approach that is so fundamental to how

the courts operate, that it should not be overridden by applicable state procedure.

- Ex. Fed Courts use adversarial system in cases, some State Courts use an
inquisitive system. Fed Courts would not adopt an inquisitive system despite it
being initially applicable in fed case.

TWIN AIMS/Goals of Erie:

1. Avoid inequitable results
2. Prevent or avoid forum shopping
Other potential goals of Erie:
- Federalism/state sovereignty
- Fed courts do not make common law

Choice of Law Flowchart:

CASES

Swift v. Tyson – Held that federal courts exercising jurisdiction on the ground of diversity
citizenship need not, in matters of general jurisprudence, apply the unwritten law of the state as
declared by its highest court; that they are free to exercise an independent judgment as to what
the common law of the state is or should be.

Erie Railroad Co. v. Tompkins – OVERRULED SWIFT – Tompkins(PA) is hit by a Erie

freight train in PA; Tompkins thinks federal “common law” of licensees should be applied; Erie
thinks PA law of trespassers should be applied. Court holds that except in matters governed by
the Constitution or federal statute; the substantive common law of the state should be applied in
federal court. Federal courts must follow state court decisions if there has been a decision on the
issue from the State’s highest court
 - IN CASES WHERE THE FEDERAL COURTS ARE EXERCISING GENERAL
JURISDICTION OVER DEFENDANT BASED ON DIVERSITY, THE FEDERAL
COURT MUST USE THE STATE’S COMMON LAW NOT FEDERAL
COMMON LAW

Guaranty Trust Co v. York – OUTCOME DETERMINATIVE TEST – Plaintiff brought

suit against defendant in federal court alleging state law claims, and invoking diversity
jurisdiction. The court dismissed the claims because they were filed outside of the state statute of
limitations. On appeal, the court held that because the state statute of limitations would bar
recovery, the federal court must also bar recovery because outcome directly dependent on
the law used. State law that only affect procedure (no behavior outside court) do not need
to be applied. State laws that affect substantive (behavior outside of court) do need to be
applied.

- Outcome Determinative Test: If the difference between state and federal law would
change the outcome of the case, then state law should be used to avoid issues of forum
selection and inequity (twin aims of Erie)

Byrd v. Blue Ridge Rural Electric Cooperative, Inc. – ESSENTIAL CHARACTER OF

THE FEDERAL COURTS – Plaintiff (NC) sued defendant (SC) in federal court (claiming
diversity) for personal injury that occurred while he was working for defendant as an
independent contractor. The jury found for plaintiff, but the court of appeals reversed because
plaintiff was working for D and was barred from legal recovery by a SC workers compensation
statute. SCOTUS granted cert. The court held that when use of a state rule would alter the
essential character or function of a federal court, it should not be applied, even if the
outcome may be different and if it may lead to forum shopping. Decided in the shadow of the
7th Amendment. State court did not provide a rationale for not allowing jury to decide here.
Federal court always has allowed jury for this type of case, so should do so here.

Hanna v. Plumer – FRCP PROTECTION – Plaintiff was injured in a car accident. The other
driver died in the accident. Plaintiff named the executor of the other driver’s will as defendant
and served defendant’s wife. State law required direct service to the defendant. FRCP 4(1) did
not require direct service. Trial Court ruled for defendant, Appellate Court agreed saying state
statute was substantive. On appeal, the court analyzes whether FRCP applies to matter and
creates unavoidable conflict with state statute. As long as the FRCP (should always be
procedural) does not abridge, enlarge, or modify a substantive right the court must apply
FRCP. Did not lead to forum shopping and it was not inequitable. Based on Rules
Enabling Act language. Hanna can continue with the lawsuit.

- WHERE THERE IS A DIRECT CONFLICT BETWEEN FEDERAL AND STATE

LAW, FEDERAL LAW MUST BE USED

Walker v. Armco Steel Corp. – Plaintiff was injured when nail manufactured by defendant
shattered, complaint dismissed as barred by OK statute of limitations; OK state law does not
consider action commenced until summons is served, FRCP 3 considers action commenced
when complaint is filed. The court held that when the scope of a Federal Rule does not
encompass an issue, state law must be applied. On narrow construction of rule, it is silent
on tolling of statute of limitations so use state standard.

- WHERE THERE IS NO DIRECT CONFLICT BETWEEN STATE AND FRCP,

STATE LAW MUST BE USED

Gasperini v. Center for Humanities, Inc. – COURT SPLIT THE BABY – Plaintiff
(journalist) took a bunch of pictures that defendant borrowed and lost. Plaintiff sued in federal
court. Defendant conceded liability, the case went to the jury on damages. The jury awarded the
petitioner $450,000 for the loss of slides. Defendant’s motion for a new trial was denied. The
appellate court set aside the verdict as excessive, relying on N.Y. C.P.L.R. § 5501(c)(McKinney
1995) which empowered New York appellate courts to review the size of jury verdicts and to
order new trials when the award was unreasonable.

Issues:
1. The NY standard of reviewing jury awards is a “deviates materially test” while the
federal standard is a “shocks the conscious test”- This was a tort reform intent on
controlling the size of damages awarded by juries.

2. The NY state court’s review is done by the appellate court (intermediary level), the
federal court’s review is done by the trial court. The federal appellate court can review
the award but only for “abuse of discretion”

The court held that the trial court must use the state standard at the trial level because they
found that ignoring State law would incentivize potential litigants to choose federal court
over state court, and there would be an equity problem.(implicating twin aims of Erie) The
court ruled they would use state court rule at trial level, but federal standard of review in
appellate court. Does not offend the 7th Amendment
Canned Responses

Matthews Test (Matthews, Hamdi)

- The courts use the Matthews Test to determine if the due process clause requires more
process before taking away litigant’s property through civil suit. The test requires
balancing three factors. The first factor that must be considered is the private interest that
will be affected by the action. The second factor is the risk of erroneous deprivation of
such interest through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards. The third factor is the government’s interest, including
the function involved and the fiscal and admin burdens that the additional or substitute
procedural requirement would entail

Relation back under 15(c)(1)(c) Test (Singletary, Krupski)

- The courts have used a four part test to determine when a plaintiff can add a new party to
a complaint after the statute of limitations has run. First, the new claim must have arisen
in the original pleading. Second, the newly named party must have received notice of the
original action within 120 days (now 90 days). Third, the new party will not be
prejudiced in maintaining a defense on the merits. Fourth, the new party must have
known or should have known, but for the mistake, that the action would have been
brought against them in the first place.

Conley/Twiqbal Standard (Conley, Twiqbal)

- The Conley standard was overruled by the Twiqbal standard. Under the Conley standard
the plaintiff only had to prove that based on the facts within the complaint, it was
possible that there was a cause of action in order to survive a 12(b)(6) motion to dismiss.
If there was any set of facts that could support the complaint, then the case could go
forward. Under the new Twiqbal standard, the court now requires that the plaintiff’s
complaint allege sufficiently the facts, that if taken as true, state a claim that is plausible
on its face to survive a 12(b)(6) motion to dismiss. Facial plausibility requires that the
facts alleged permit a reasonable inference that the defendant is in fact liable.

FRCP 26 Required Disclosures Test

- There are certain disclosures that must be made during discovery. If these disclosures are
not made willingly, the opposing party can compel discovery under FRCP 26. There is a
six part tests the courts use to determine if a disclosure is required; (1) the importance of
the issues at stake, (2) the amount in controversy, (3) the parties’ relative access to the
relevant information, (4) the parties’ resources, (5) the importance of the discovery in
resolving the issues, and (6) whether the burden or expense of the proposed discovery
outweighs its likely benefit.
Personal Jurisdiction

- There are two types of personal jurisdiction; General Jurisdiction and Specific
Jurisdiction. A state has general jurisdiction over a defendant when the defendant is
domiciled within that state. For individuals this means that they live within and plan to
remain in the state indefinitely. Individuals can only have one domicile. A corporation
can have two domiciles if it is incorporated in a different state than its principle place of
business. A court can also exercise general jurisdiction over a defendant served within the
state. Specific Jurisdiction is a more limited form of personal jurisdiction. In order for a
state to exercise specific jurisdiction over a defendant it must have a long arm statute that
allows it to do so. Exercising jurisdiction over the defendant must also not violate the due
process clause of the U.S. Constitution. The courts held in International Shoe that in
order to not to offend “traditional notions of fair play and substantial justice” the
defendant must have sufficient contacts with the forum state, those contacts must have a
sufficient nexus with the cause of action against them, and it must be fair to the
defendant, the state, and the plaintiff for the state to exercise specific jurisdiction over the
defendant.

Preliminary Injunction

- FRCP 65 provides that the court may issue a preliminary injunction to enjoin the
defendant from engaging in certain conduct. There is a four part test the courts use to
determine if a preliminary injunction should be issued. The factors are not requirements,
they are merely factors that are weighed against one another to determine if an injunction
should be granted. The first factor is whether the plaintiff’s claim is likely to succeed on
the merits, the second is whether the plaintiff would suffer irreparable harm if injunctive
relief were not granted, the third is the balance of equity tips in their favor, and the fourth
factor is whether the injunction is in the public’s interest.

Permanent Injunction

- There is a four part test the courts use to determine if a permanent injunction should be
issued. The factors are not requirements, they are merely factors that are weighed against
one another to determine if an injunction should be granted. The first factor is whether
irreparable injury will come to the plaintiff if the defendant is not enjoined, the second is
whether money damages is good enough, the third is the balance of the equities between
the defendant and the plaintiff, and the fourth is whether the public interest is disserved
by granting the injunction.

Subject Matter Jurisdiction

- Subject matter jurisdiction is the power of the court to hear certain types of cases. The
state courts have subject matter jurisdiction over most claims. But the federal courts only
have subject matter jurisdiction over claims that raise a federal question under 28 USC
§1331 or through diversity under 28 USC §1332. In order to fall under §1331, the claim
must raise a federal issue on its face. The court held in Louisville & Nashville R.R. Co v.
 Mottley, that a claim cannot be considered one that raises a federal issue if it merely
anticipates a defense that will implicate federal law. In order for a claim to fall under
§1332 there must be complete diversity. Complete diversity is destroyed if a single
plaintiff is domiciled in the same state as a single defendant. The claim must also meet
the amount in controversy requirement. Thus the claim must be above 75K.

Supplemental Jurisdiction

- 28 USC § 1367 was passed to clarify supplemental jurisdiction. Under §1367(a) the
federal courts have supplemental jurisdiction to hear claims that are closely related to the
same constitutional case under Article III of the U.S. Constitution. However, if subject
matter jurisdiction over the original claim is based solely on diversity of citizenship, the
federal courts do not have supplemental jurisdiction over claims by plaintiffs against
persons made parties under Rule 14, 19, 20, or 24. Even if the second claim meets the
requirements of sections a and b, the court could still choose not to exercise supplemental
jurisdiction over the claim. §1367(c) leaves it up to the court’s discretion to exercise
supplemental jurisdiction.

FRCP 20 Permissive Joinder

- The courts use a four part test for deciding if a original claim and a counterclaim arise out
of the same transaction or occurrence. The first factor considered is whether the issues of
fact and law raised by the claim and counterclaim largely the same. The second factor is
whether res judicata bar a subsequent suit on the defendant’s claim absent the
compulsory counterclaim rule. The third factor is whether substantially the same
evidence support or refute plaintiff’s claim as well as defendant’s counterclaim. The last
factor is whether there is any logical relation between the claim and the counterclaim.