Civil Procedure

All Notes & Cases

Class 1 – Injunctions/Procedural Due Process 6
Class Notes 6
ADL Notes re: Remedies/Injunctive Relief 6
Oquendo 7
Cases 8
Sierra Club et al v. Donald Trump (9th Cir. 2019) 8
Trump et al v. Sierra Club (2019) 9
Smith v. Barry (1992) p. 23 9
Goldberg v. Kelly (1970) (p. 27) 10
Other Book Notes (Rulemaking Process re: FRCP) 10
Federal Rules of Decision: 10
Order on the 1963 Amendments to FRCP (p. 15) 12
Order on the 1993 Amendments to the FRCP (p. 16) 12
Procedural Due Process – Tests/Framework 13
NOTICE (Flowers) 13
RIGHT TO BE HEARD (MATTHEWS TEST) 13
Due Process Clause 13
Injunctive Relief – Tests/Framework 13
Preliminary Injunction/TRO Test: *must meet all 4* 13
To get a Temporary Restraining Order (Rule 65 b): 14
Permanent Injunction: 14
FRCP re: Injunctive Relief 14
Provisional Relief: 14
Final Relief: 14
FRCP 65 – Injunctions and Restraining Orders 15

Class 2 – Procedural Due Process Cont’d 17

Class Notes 17
ADL Notes re: Due Process 17
Oquendo 17
Case Notes 19
Wheeler v. Montgomery (1970)(p. 35) 19
Lovey et al v. Eggleston (p. 39) - COMPLAINT 20
Matthews v. Eldridge (p. 49) (1976) 20
CREATION OF MATTHEWS TEST 20
Leis et al v. Flynt (1979) (p. 56) 21
Lassiter v. DSS of Durham, NC (1981)(p. 61) 21
S.L.J. v. M.L.B. (1996) (p. 83) 22
Gilmore v. Utah (p. 93)(1976) 23
Other Book Notes 23
Subordination, Rhetorical Survival, and Sunday Shoes: Notes on Hearing of Mrs. G 23

Class 3 - Standing 24

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 Class Notes 24
Case Notes 26
Whitmore v. Arkansas (1990) (p. 110) 26
Sierra Club v. Morton (1972)(p. 117) 27
Lujan v. Defenders of Wildlife (1992)(p. 125) PLURALITY 28
Clapper v. Amnesty International (2013)(p. 135) 30
Standing – From Con Law 30
Case and controversy/Justiciability Doctrines 30
California v. Texas: 32

Class 4 – Preclusion/Justiciability/Appellate Review 32

Class Notes 32
Case Notes 34
Davis v. Passman (p. 146) (1979) 34
Lovely (Answer) (p. 151) 35
Mullane v. Central Hanover Bank & Trust (p. 157)(1950) 35
FRCP 23 - marked up starting on p. 163, also check rulebook 35
Eisen et al v. Carlisle & Jacquelin (p. 168)(1974) 35
Parklane Hosiery v. Shore (p. 176)(1979) 36
B&B Hardware v. Hargis Industries (p. 182) (2015) 37
Cooper v. Federal Reserve Bank of Richmond (p. 194) (1984) 38
Class Actions – Framework for Analysis 38
FRCP 23 38
Assessing Subject Matter Jx for Class Actions 38
Steps to Class Certification: 39
Claim Preclusion – From ADL/OG Civ Pro Version 40
Claim Preclusion (res judicata) 40
3 Things D must show to argue claim preclusion 41
Claim Preclusion -- Restatement of Judgments version 41
Privity Examples for Claim Preclusion 42
Issue Preclusion – ADL /Civ Pro Notes 43
Issue Preclusion (collateral estoppel) 43
Issue Preclusion -- Restatement Version 43
Issue Preclusion Test 44
Mutuality (REMEMBER THIS) 45
Mutuality: 45
How to ANSWER Preclusion Q on Exam 45
Class 5 – Arbitration & Class Actions 45
Class Notes 45
ADL Notes re: Class Actions 45
Oquendo 46
Case Notes 49
Class Cert under FRCP 23 & advisory committee notes (p. 198) 49
Lovely v. Eggleston (p. 201) (SDNY, 2006) 49
Lovely v. Eggleston (p. 209)(SDNY, 2006) 49
Legal Aid Article (p. 212) 49

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 Private Securities Litigation reform 15 USC §77z-1 (2012) (p.214) 49
FRCP 23(e) - Settlement (p. 217) 49
Lovely (p. 219)(2015) 50
Lovely (p. 232) 50
Martin v. Wilks (p. 234)(1989) 50
Matsushita Electric v. Epstein (p. 243) (1996) 51
OG Civ Pro – Class Action Cases 52
Walmart Stores Inc. v. Dukes (2011) 52
Chicago Teachers Union v. Chicago BOE (handout) 52

Class 6 – Class Actions cont’d/Subject Matter Jx/Venue/Removal 53

Class Notes 53
ADL Notes re: Joinder 53
Barbri – Joinder/Subject Matter Jx 54
Oquendo 55
Case Notes 56
Amchem v. Windsor (p. 250) (1997) 56
Ortiz v. Fibreboard (p. 261) (1999) 57
Subject Matter Jx statute (p. 275) 57
FRCP 14(a) (p. 277) 57
Owen Equipment v. Kroger (p. 277) (1978) 58
Supplemental Jx statute (p. 283) 58
Erie RR v. Tompkins (p. 283) (1938) 58
Hanna v. Plumer (p. 287) (1965) 59
Sosa v. Alvarez-Manchain (p. 291) (2004) 59
Statutes - Subject Matter Jx, Supplemental Jx, Removal 59
Subject Matter Jx Statutes 60
Supplemental Jx Statute 60
Removal Statutes: 61
Constitution (Art. III § 2) 62
Federal Rules re: Impleader, Counterclaim/Crossclaim/Joinder 62
Subject Matter Jx – Chart 63
Supplemental Jx - Chart 64
ADL Notes re: SJX & Supp Jx 65
General Things to Know re: Subject Matter Jx 65
Federal Question SJx: 65
Diversity SJx 65
Supplemental Jx 66
Types of Supplemental Jx 66
Supplemental Jx (Older Terms/Chart) 66
Removal 67
Removal (Trickery/Good Lawyering) 67
Removal – Things to Know 68
More Detailed Notes re: Removal 68
Venue / FNC 68
ADL Notes re: Venue/FNC 68
Venue Statutes 69

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Class 7 – Erie/Personal Jx 70
Class Notes 70
Personal Jx – ADL Class Notes 70
Barbri – Erie 71
Lahav – Erie 71
Oquendo 72
Case Notes 73
Jesner v. Arab Bank (p. 302) (2018) - plurality 73
World Wide Volkswagen v. Woodson (p. 324) (1980) 74
Burnham v. Superior Ct of California (p. 335) 75
Allstate Insurance Co. v. Hague (p. 342) (1981) 75
All other O.G. Civ Pro PJx Cases Included for ~spice~ 76
Navigating a PJx Question – Flow Chart <3 80
Personal Jx. Rules/Charts 82
Class 7 – Choice of Law (Conflicts)/Tribal Courts/School Board Cases 83
Class Notes 83
Case Notes 84
Baker v. GM (p. 350)(1998) 84
Santa Clara Pueblo v. Martinez (p. 359) (1978) 85
Hart v. Community School Board of Brooklyn (p. 367) (EDNY 1974) 86
Hart v. School Bd of Brooklyn (p. 386) (EDNY 1974) 86
Hart v. School Bd. Of Brooklyn (p. 389) (2d Cir. 1975) 86
Missouri v. Jenkins (p. 393) (1995) 87

Class 8 - Prison Litigation/School Desegregation 87

Class Notes 87
Case Notes 90
Estelle v. Wayne (p. 407) (1976) - cert denied. 90
Hutto v. Finney (p. 409) (1978) 90
Rufo v. Inmates of Suffolk Cty Jail (p. 412)(1992) 90
Prison Litigation Reform Act 18 USC § 3626 (p. 423) 92
Brown v. Plata (pg. 425) (2011) 92

Class 10 – Arbitration & Preclusive Effect of Arbitration/Discovery 94

Class Notes 94
Case Notes 96
Alexander v. Gardner-Denver (p. 457) (1974) 96
Gilmer v. Interstate/Johnson Lane Corp. (p. 462) (1991) <-- narrows Gardner-Denver 96
Wright v. Universal Maritime Service (p. 468) (1998) 97
Green Tree Financial v. Randolph (p. 472) (2000) 97
Circuit City v. Adams (p. 477) (2001) 98
Hickman v. Taylor (p. 487) (1947) 98
FRCP 26 (Discovery) (p. 496) 99
Standard for Discovery 99
Arguments Against Discovery 99
Federal Rules: 99

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Class 11 – Discovery cont’d/Notice Pleading 100
Class Notes 100
Case Notes 103
Advisory Committee Notes re: Amendments to Discovery Rules (p. 500) (1970) 103
Advisory Committee Notes re: Amendments to Discovery Rules (p. 502) (1993) 103
Advisory Committee Notes re: Amendments to Discovery Rules (p. 507) (2000) 103
Advisory Committee Notes re: Amendments to Discovery Rules (p. 507) (2006) 103
Advisory Committee Notes re: Amendments to Discovery Rules (p. 512) (2007) 103
FRCP 34 & Advisory Committee Notes - Electronic Discovery (p. 513) 103
Upjohn v. United States (p. 516) (1981) 103
FRCP 26 & Advisory Committee Notes (p. 521) 103
1980 Amendments to FRCP re: Discovery Rules (p. 527) 103
1993 Amendments to FRCP re: Discovery Rules (p. 529) 104
FRCP 37 (Failure to Disclose) (p. 531) 104
NHL v. Metropolitan Hockey Club (p. 532) (1976) 104
Cheney v. US District Ct for District of Columbia (p. 534) 104
FRCP 12 - Dismissal (p. 534) 105
Conley v. Gibson p. 544 (1957) (NOTE: THIS HAS BEEN RETIRED BY TWIQBAL) 105

Class 12 – Plausibility Pleadings/Complaints/Answers/Jury Right 105

Class Notes 105
ADL Notes re: Complaints/Pleadings 105
ADL Notes re: Answers 106
ADL Notes re: Jury Right 107
ADL Notes re: Summary Judgment 107
Oquendo 107
Case Notes 109
Ashcroft v. Iqbal (p. 546) (2009) 109
FRCP 56 (Motion to Dismiss) (p. 560) 111
Adickes v. S.H. Kress & Co (p. 561) (1970) 111
Celotex Corp v. Catrett (p. 569) (1986) 112
Lovely v. Eggleston (p. 576) (SDNY 2012) - Movement for Partial Summary Judgment 112
US v. Will (p. 579) (1980) 113
Teamsters v. Terry (p. 582) (1990) 113
Batson v. Kentucky (p. 592) (1986) 114
Plausibility Pleading Framework – From Lahav/OG Civ Pro 115
TWIQBAL 115
Pleadings Analysis 115
Plausibility Test 115
FRCP re: Complaints & Answers 116
Constitution/FRCP re: Jury Right 116
Summary Judgment/Directed Verdict 117
Summary Judgment 117
Directed Verdict 117
Tests re: Summary Judgment 117
Test re: Directed Verdict 118
Test for Judgment Not Withstanding the Verdict & Renewed Judgment Notwithstanding the Verdict 118

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 Args for Directed Verdict 118
Args to survive it 118
Batson – Test framework from OG Civ Pro 118
Class 13 – Jury Right cont’d/Civil Rights Cases/Damages 118
Class Notes 118
Case Notes 119
J.E.B. v. Alabama (p. 601)(1994) 119
Kumho Tire v. Carmichael (p. 610)(1999) 120
Silkwood v. Kerr-McGee (p. 617)(1984) 121
BMW of North Am. v. Gore (p. 627) (1996) 121
42 USC § 1988 (p. 643) 122
Lovely v. Eggleston (p. 643) (SDNY 2018) 123
Riverside v. Rivera (p. 644) (1986) 123

Class 14 - Fees 123

Class Notes 123
Oquendo 123
Case Notes 124
FRCP 68 (p. 653) 124
Marek v. Chesny (p. 653)(1985) 125
Evans v. Jeff D. (p. 661)(1986) 125

Class 1 – Injunctions/Procedural Due Process

Class Notes
ADL Notes re: Remedies/Injunctive Relief
Types of Remedies
● Temporary Restraining Order
● Preliminary Injunction
● Sequestration
● Garnishment
● Lien on a Home

Arguments re: Injunction:

● institutional capacity of courts and judges
o are the courts the right avenue to determine this issue?
● Separation of powers

Types of Damages
● nominal damages
o able to collect without showing actual harm/injury
● compensatory damages
o only able to collect if a plaintiff suffers actual harm/injury
● declaratory judgment
o a court declares someone has a right to something (mostly in patent law)

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 ● Prejudgment remedies require a notice and a hearing. Generally speaking, the hearing must
occur prior to the deprivation
● The weight of the 4 factors of a TRO/Prelim. Injunction haven't been decided, however, a party
must meet all 4 in order for the TRO/Prelim. Injunction to be granted.
● A Preliminary Injunction is meant to maintain the status quo -- in many circumstances, if you win
this, you win the whole case.
● The Standard for issuing a Permanent Injunction is irreparable harm.

Oquendo
Kafka
● Expects guidance on the law
● When he goes to a place, he meets a gate keeper who says yes you're at the right place, but…
you can't actually go because I decide if you're ripe for the law
● Power of the gate keeper comes from the man
● The loneliness the man feels is like what you feel confronting the law

How it relates to Adv. Civ Pro:

● Another lesson of the story is that the man recognizes the gate keeper, but he doesn't realize
he's already in the law because procedure is law.
● Think about how procedure works and we are engaged in a very uphill battle, but you keep
hoping…
● Put aside feelings and ultimately understand the strongest argument that the other side can
bring and this is how you do best by your client. Don't just be an idealist or think about good
guys/bad guys. Look at the other side for a second and see their strengths of their argument.
o Don't do this instrumentally, but instead put yourselves in the shoes of the other side.
And appreciate that they may be right.

Trump v. Sierra Club

● Interlocutory appeal
● Procedure on top of procedure
● An example of how law is practiced, especially in the US
o Time is of the essence
● Injunctions are everything, you prevail and you win the case
● So much of litigation is political. (the pursuit of law is politics by other means.)
● File a suit, but with a request for a prelim injunction (he calls this a poison pill), then they go
back the other way and get an interlocutory appeal to stay the proceedings before.
● To get a PI/Stay
o Likelihood of success on merits
o Irreparable Harms
o "some other crap" (Lahav would never.)
● Sometimes if you don't get the injunction, it's sort of over and you might essentially just drop it
because it really was all about stopping it from happening

Rules & How Passed

● "something very much alive"
● Congress assigns decisions to legislative agencies on very important issues and "passes the buck"
● A very very long process

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 ● Most of the time Congress doesn't actually take action and as a result after 6 months, it is now a
rule.

Discovery Conference
● Judge asks how it went but doesn't typically went involved
● Parties have obligatory disclosure duties

Always go back to Rule 1 to determine whether there's a conflict if you think something fishy is going on.
● Shall v. Should discussion (but it should be stylistic only, but it's not actually clear)

Smith v. Barry
● A judgment notwithstanding the verdict (JNOV) is a judgment by the trial judge after a jury has
issued a verdict, setting aside the jury's verdict and entering a judgment in favor of the losing
party without a new trial.
● Invalid appeal filed, but, by chance, the appeal gets to the clerk and distributes the forms for an
informal brief, which the P then completes and submits.
● So, can this serve as notice of appeal?
● Yes.

What is probable jurisdiction?

● Some cases are technically appeals rather than cert petitions -- the "petitioner" has a right of
appeal to the Supreme Court. In those cases, the Court does not grant Cert but technically notes
that it has jurisdiction over the case.

Cases
Sierra Club et al v. Donald Trump (9th Cir. 2019)
● Injunction standard weighs:
o Success on the merits
● Here: P has an equitable cause of action to enjoin a constitutional violation &
they can proceed on their constitutional claims via the Administrative
Procedures Act, or both.
o Degree of hardship faced by either side that would result
● Here: District Ct held P would be irreparably harmed
o Balance of Equities
● Here: District Ct held balance tipped in their favor
o Public Interest
● Here: court found that following the Constitution's assignment of powers to
Congress instead of usurpation by Executive Branch
● Procedural posture
o Sierra Club awarded prelim injunction in District Ct
o Trump appealed
● In district Ct, filed motion to stay injunction pending appeal (was denied)
o MEANWHILE: in district ct, hearing on perm injunction is held
● Granted for Plaintiffs
o Appeals denial of stay of prelim injunction to 9th Circuit (also appeals perm injunction)
● Denied at 9th circuit
o Appeals denial to SCOTUS… which leads to….

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Trump et al v. Sierra Club (2019)
● Application for stay pending appeal GRANTED --> now the whole action has to go through for
finality in order to go into effect.
o Gvt has made a sufficient showing that the Ps have no cause of action to obtain review
of compliance with the underlying federal law.
● Breyer, J. concurring in part and dissenting in part
o Allow for contracts to go forward, but not construction on the border wall itself.

Smith v. Barry (1992) p. 23

● Inmate files a pro-se action against two administrators.
● Procedure: dismissed Dr. Barry in district ct because he did not act under color of state law
when treating Smith, so § 1983 does not apply. District Ct then directed a verdict for the
administrators on wheelchair & excessive force on 3 officers. Jury found for other four officers
on other excessive force claim, but found in favor of P re: psychologists. Psychs then filed for a
JNOV, while this was pending, Smith filed a notice of appeal.
o 4th Circ found that they had no jx and dismissed because of the untimely notice of
appeal under Fed. R. App. Proc. 4(a)(4) and that an informal brief was not the functional
equivalent of a notice of appeal under FRAP 3.
● Notice of appeal was INVALID under Fed. R. App. Proc. 4(a)(4) that provides that a notice of
appeal filed before the disposition of a timely Judgment Notwithstanding the Verdict has no
effect.
● I: Can an informal brief constitute a notice of appeal under FRAP 3?
● H: YES. Fed R. App. 3(c) states: an appeal shall not be dismissed for informality of form of title of
the notice of appeal.
o While a notice of appeal must specifically indicate the litigant’s intent to seek appellate
review, the purpose of this requirement is to ensure that the filing provides sufficient
notice to other parties and the courts. Thus, the notice afforded by a document, not the
litigant’s motivation in filing it, determines the document’s sufficiency as a notice of
appeal. If a document filed within the time specified by Rule 4 gives the notice required
by Rule 3, it is effective as a notice of appeal.
● Courts will liberally construe the requirements of Fed. R. App. Proc. 3. . . . Thus, when papers are
“technically at variance with the letter of [Rule 3], a court may nonetheless find that the litigant
has complied with the rule if the litigant’s action is the functional equivalent of what the rule
requires.” Torres, supra, at 316-317.
o This principle of liberal construction does not, however, excuse noncompliance with the
Rule. Rule 3’s dictates are jurisdictional in nature, and their satisfaction is a prerequisite
to appellate review. Torres, supra. Although courts should construe Rule 3 liberally
when determining whether it has been complied with, noncompliance is fatal to an
appeal.
● Proper briefing is not a jurisdictional requirement under the Fed. Rules of App. Proc.
● Scalia, J. (concurring): takes issue with the term "liberal application" of the rules, but generally
fine with the decision in this case.

Goldberg v. Kelly (1970) (p. 27)

● Class action brought in SDNY about termination of welfare without prior notice and hearing,
denying them of due process. SDNY said that a pretermination hearing was necessary.

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 ● Holding: Due Process requires pretermination hearings prior to the termination of welfare.
● A constitutional challenge in this area cannot be answered by an argument that public
assistance benefits are a privilege and not a right. Instead, the extent to which procedural due
process must be afforded to the recipient depends upon whether the recipient's interest in
avoiding that loss outweighs the governmental interest in summary adjudications.
o Accordingly, consideration of what procedures due process may require under any given
set of circumstances must begin with a determination of the precise nature of the
government function involved as well as of the private interest that has been affected
by governmental action.
o Termination of aid pending resolution of a controversy over eligibility may deprive an
eligible recipient of the very means by which to live while he waits is a key factor in
determining need for hearing before termination.
● A pre-determination hearing must be a fair hearing, but it need only be limited to the question
of whether the grounds for discontinuance of payments were erroneous.
● THE fundamental requisite of due process of law is the opportunity to be heard. The hearing
must be at a meaningful time and in a meaningful manner. In the present context, these
principles require that a recipient of welfare have timely and adequate notice detailing the
reasons for a proposed termination, and an effective opportunity to defend by confronting any
adverse witnesses and by presenting his own arguments and evidence orally.
o The opportunity to be heard must be tailored to the capacities and circumstances of
those who are to be heard. It is not enough that a welfare recipient may present his
position to the decisionmaker in writing -- must be heard orally.
● In almost every setting where important decisions turn on questions of fact, due process
requires an opportunity to confront and cross-examine adverse witnesses.
● Counsel does not have to be present, but only that the recip must be allowed to retain an atty if
they desire.
● Decisionmaker's conclusion re: eligibility must rest solely on the legal rules and evidence
adduced at the hearing.
● Black, J. (dissenting)
o Thinks this should be left to the legislature and not courts, that the due process clause
doesn't extend this far. It was meant to protect black people but he thinks the Court has
exceeded its bounds by saying that public assistance is a property right and to terminate
without a hearing would, then, violate due process.
o Hates the balancing of pretermination hearing against deprivation and considers public
assistance charity.
o DPC doesn't include questions of fairness and, if they did, they would leave the majority
of Justices to conclude anything unconstitutional b/c they find it unfair/shocking.

Other Book Notes (Rulemaking Process re: FRCP)

Federal Rules of Decision:
● Congress has authorized the federal judiciary to prescribe the rules of practice, procedure, and
evidence for the federal courts, subject to the ultimate right of Congress to reject, modify, or
defer any of the rules.
● Procedures for promulgating the rules are listed in the Rules Enabling Act 28 U.S.C. §§2071–77
● Judicial Conference is also required to carry on a continuous study of the operation and effect of
the general rules of practice and procedure 28 U.S.C. § 331.
o Their responsibilities are coordinated by the Standing Committee 28 U.S.C. § 2073(b)

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 o Standing committee is composed of federal judges, practicing lawyer, law profs, state
chief justices, and representatives of the Dept of Justice.
o Meetings are open to the public & announced widely.
● How are rules amended?
o Step 1: Initial consideration by Advisory Committee
● Proposed changes are suggested by judges, clerks, lawyers, professors, gvt
agencies or others. They're considered first by the appropriate advisory
committee.
● When considering changes advisory committee can take several actions:
▪ Accept suggestion either completely or with modification
▪ Defer action on the suggest or seek additional information on its
operation and impact
▪ Reject a suggestion b/c it lacks merit or would be inconsistent with
other rules
▪ Reject a suggestion b/c although it may have merit, it is not
necessary/important enough to warrant amendment of the rules.
o Step 2: Publication & Public Comment
● Once an advisory committee votes to recommend an amendment, it needs to
obtain approval of the standing committee/its chair to publish the amendment
for public comment.
● Public is given 6 months (normally) to comment in writing to the secretary
regarding the proposed amendment.
● At least 1 public hearing is held. If the public wants to testify at this hearing,
they need to contact the secretary at least 30 days before the hearing.
o Step 3: Consideration of the Public Comments & Final Approval by Advisory Cmtee
● Reporter prepares a summary of the written comments from the public and the
testimony presented at hearings. The advisory committee then takes a fresh
look at the proposed changes in light of this feedback
● If the advisory makes a substantial change to its initial proposal, it may provide a
period for additional public notice/comment.
● Once the committee decides to proceed in final form, it submits the proposed
amendment to the Standing Committee for approval.
▪ Need to include a separate report summarizing the comments received
from the public and explaining any changes made after public comment
period.
o Step 4: Approval by Standing Committee
● Considers the final recs of the advisory committee and may accept, reject, or
modify them.
● If approving a proposed rule change ==> transmits it to Judicial Conference with
a recommendation along with the reports it creates and those of the advisory
committee.
o Step 5: Judicial Conference Approval
● Normally considers proposed amendments to the rules during its September
meeting.
● If approved => sent to SCOTUS
o Step 6: SCOTUS Approval
● SCOTUS has the authority to prescribe the federal rules subject to a statutory
waiting period. 28 U.S.C. §§ 2072, 2075.
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 ● Proposed amendments must be sent to Congress by May 1 of the year in which
the amendment is to take effect.
o Step 7: Congressional Review
● Congress has at least 7 months to act on any rules prescribed by SCOTUS. If
Congress does not enact legislation to reject, modify, or defer the rules, they
take effect as a matter of law on December 1. 28 U.S.C. §§ 2074–75.

Order on the 1963 Amendments to FRCP (p. 15)

● Inclusion of FRCP 30, 31, 32; Amendments to 4–7, 12–15, 24–30, 41, 49, 50, 52, 56, 58, 71A, 77,
79, 81
● Dissents by Black & Douglas:
o Took issue with the fact that the rules could take effect without requiring any
affirmative consideration, action, or approval of the rules by Congress/President.
o While some of the FRCP are simply housekeeping details, many determine matters so
substantially affecting the rights of litigants in lawsuits that in practical effect they are
the equivalent of new legislation which, in their view, the Constitution requires to be
initiated by Congress and approved by the President.
o Main concern: many of the changes abridge, enlarge, or modify substantive rights and
do not preserve the right to trial by jury but actually encroach on the jury right.

Order on the 1993 Amendments to the FRCP (p. 16)

● Statement by White: That the Justices have hardly ever refused to transmit the rules submitted
by the Judicial Conference and the fact that, aside from Black & Douglas, it has been quite rare
for any Justice to dissent from transmitting a rule suggest that a sizable majority of the 21
Justices who sat during the period where 28 U.S.C. § 2072 was in effect concluded that Congress
intended them to have a rather limited role in the rulemaking process.
● Views Court's role as simply transmitting the Judicial Conference's recommendations to
Congress without change or careful study, as long as there is no suggestion that the committee
system has not operated with integrity.
● Scalia & Thomas (Dissent)
o Takes issue with the changes to Rule 11 (Sanctions) that permit a 21 day safe harbor to
for an attorney to withdraw a pleading that a party finds to be frivolous without being
sanctioned.
● In their view: this means people can file whatever they want and withdraw it if
an objection is raised.
● Decreases severity of punishment if the atty doesn't withdraw within safe
harbor window
● Likelihood of frivolousness being called out would be decreased
● Ignores evidence that Rule 11 has been effective
o Acknowledges that he is going to take an active role in review (Souter joins this part of
the dissent)

Procedural Due Process – Tests/Framework

Think of Due Process as having two parts, both of which have to be addressed:
1. Notice (Flowers)
2. Right to be Heard (Matthews Test)

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NOTICE (Flowers)
Notice: Reasonably (reasonable depends on the totality of circumstances) calculated to apprise
interested parties of the pending action
+If notice is unsuccessful (and you know about it) a further attempt must be made
+Test for Notice:
-Must be suitably formal in tenor and informative in content
-Either (a) actual notice or (b) notice that is reasonably calculated to result in actual
notice
-Must afford a reasonable opportunity to be heard

RIGHT TO BE HEARD (MATTHEWS TEST)

● Due Process generally requires consideration of three distinct factors:
o The private interest that will be affected by the official action
o The risk of an erroneous deprivation of such interest through the procedures used
(meaning risk of a MISTAKE), and the probable value, if any, of additional or substitute
procedural safeguards
o The Government's interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement would
entail.
Due Process Clause
● 5th Amendment – Federal Law
● 14th Amendment – State Law

Injunctive Relief – Tests/Framework

Preliminary Injunction/TRO Test: *must meet all 4*

1. Party is likely to succeed on the merits of their cause of action: a likelihood of success is
the correct standard, rather than a mere possibility of success.
2. Party is likely to suffer irreparable harm in absence of preliminary relief: this must be,
except in the 9th circuit (which acknowledges "serious questions re: suffering as
acceptable), "a real and immediate threat of future injury by the defendant." And cannot be
resolved with money.
3. Balance of equities tips in the party's favor: Injunction is an equitable remedy and
looking at the two parties, who is on the "right side" of an issue (meaning the party isn't
behaving badly).
a. "the balance of equities tips in my client's favor BECAUSE…"
b. If a party behaves badly, the balance of equities does NOT tip in their favor
4. An injunction is in the public interest: subjective standard, must be argued and explain
WHY

To get a Temporary Restraining Order (Rule 65 b):

Can be issued without written or oral notice to the adverse party ONLY IF:
1. Specific facts in an affidavit or verified complaint clearly show that immediate
irreparable injury, loss, or damage will result to the movant before the adversary party
can be heard in opposition; and

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 2. the movant's attorney certifies in writing any efforts made to give notice and the reasons
why it should not be required
TROs can be obtained within hours and are a faster method of getting an order than a
preliminary injunction. If movant party makes an effort to notify the adverse party, but the
adverse party cannot be reached or cannot attend the hearing, the hearing may still go forward
without the other party.
TROs can be obtained for up to 14 days, but doesn't have to be that long.

Adverse party can file a motion to dissolve on 2 days notice.

Permanent Injunction:
● Remedy at Law or Equitable Relief (permanent injunction) – directs the defendant to halt the
offending conduct or perform the acts under a legal duty
● Standard is that a lawyer must show irreparable harm
● Plaintiff must show ALL FOUR:
o Suffered irreparable injury
o Remedies available at law (e.g. money) are inadequate to compensate for the injury
o Considering balance of equities (fairness) a Permanent Injunction is warranted
o The public interest would not be disserviced by a permanent injunction
● Types of Perm. Injunctions (pg. 134)
● Equitable Relief should only be available when damages are not adequate

FRCP re: Injunctive Relief

Provisional Relief:
Federal Rules:
FRCP 64: Seizing a Person or Property
● types of remedies: arrest; attachment; garnishment; replevin; sequestration; and others
FRCP 65: Injunctions and Restraining Orders (Temporary limited to 14 days)
Securing the judgment: Attachment or lien on real estate, garnishing $ or bank accounts,
sequestering property

Final Relief:
Federal Rules:
-FRCP 68: Offer of Judgement
-42 USC Sec. 1988: A prevailing party in a Sec. 1983 action may be awarded attorney’s
fees as part of its costs
-42 USC Sec. 1983: Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes
to be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress
(1983 utilized in Carey v. Piphus)

14
FRCP 65 – Injunctions and Restraining Orders
Preliminary Injunction (PI)
● Notice: Can only be issued by the court on notice to the other non-moving (adverse)
party
● Consolidating the Hearing on the Merits: Court may, either before or after beginning the
hearing on the motion for preliminary injunction, advance the trial on its merits and
consolidate that process with the hearing re: preliminary injunction. Note: Even in
circumstances where consolidation is not ordered, evidence that is received &
admissible at a trial as part of this motion would become part of the record and not
need to be repeated.

Temporary Restraining Order (TRO)

● Issuing without Notice: The court may issue a TRO without written/oral notice to the
other party (or its atty) only when:
● Specific facts in an affidavit/complaint clearly show one or more of the following
will be immediate and irreparable will result prior to the other party being
heard
● Injury
● Loss
● Damage
AND
● The atty moving for the TRO certifies in writing any efforts made to give notice and the
reasons why notice shouldn’t be required.
● Contents/Expiration:
● Every TRO w/o notice must state the following:
● Date/Hour issued
● Describe injury & why it’s irreparable
● And: be filed promptly with the clerk’s office/entered into record.
● Expiration:
● Court sets the duration of the TRO, which typically cannot exceed 14
days
● However, courts may extend, for good cause, prior to the expiration for
a “like period” or the other party consents to a longer extension
● Reasons for any extension must be entered into the record.
● Expediting the Preliminary-Injunction Hearing: If the TRO is issued w/o notice, the
motion for a Preliminary Injunction must be set for hearing at the earliest possible time,
taking precedence over all matters except hearings on older matters of the same
character. At this hearing, the moving party (moving party = party who wants the
TRO/PI) must proceed with the motion for a PI, otherwise the TRO expires.
● Motion to Dissolve: The party subject to a TRO may move to dissolve/modify the TRO by
providing 2 days’ notice to the party who wanted the TRO (can be shortened by the
courts). The court must then hear the motion to dissolve and decide on it “as promptly
as justice allows”.

Security
● Security is given by the moving party “in an amount that the court considers proper”
and meant to cover the costs and damages sustained by any party who is wrongfully
restrained/enjoyed (restrained legally via injunction) as a result of the TRO/PI

15
 ● This must be provided prior to a Court to issue a preliminary injunction or TRO
● Not required to be given by the United States, its officers, or its agencies.

Contents/Scope of Every Injunction & Restraining Order

● Contents: Every order granting an injunction and every restraining order must:
● State the reasons why it was issued
● State its terms specifically; and
● Describe in reasonable detail the acts or acts restrained or required. This
cannot be done by referring to the complaint itself or another document.
● Persons Bound: The order binds only the following who receive actual notice of it (by
personal service or other means)
● The parties
● The parties’ officers, agents, servants, employees, and attys; and
● Other persons who are actively participating or in a formal agreement with
(concert) the parties or their officers, agents, servants, employees or attys.

Other Laws Not Modified

● Any federal statute re: TROs/PIs affecting employer/employee actions
● 28 USC § 2361: PI in actions of interpleaders (suits re: property ownership that’s held by a
disinterested 3rd party)
● 28 USC § 2284: actions that must be heard/decided by a 3 judge district court

Copyright Impoundment
● This does apply to cases re: copyright impoundment (seizure/holding of items that violate
copyright).

16
Class 2 – Procedural Due Process Cont’d

Class Notes
ADL Notes re: Due Process
Due process, generally refers to a "right to be heard." This is a SUBSTANTIVE cause of action

The most crucial question regarding a procedure is:

"How much process is due?"

To make a due process claim, a claimant must show that a state has denied a constitutional right on the
basis of life, liberty, and/or the property.

Due Process Triggers

1. State action
2. Deprivation of a right
3. Right deprived is one on basis of Life, Liberty, or Property

Matthews Test (per Lahav: to apply this test, answer as a series of questions)
3 Factors:
1. Private Interest that will be affected by the official action
2. The risk of erroneous deprivation and the probable value of additional procedures
3. Government's interest, including function involved and the fiscal and administrative burden
Of note: more & more the government's interest has become more fiscal in nature

Due Process requires

1. Notice and the opportunity to be heard at a meaningful time in a meaningful manner
a. Notice
b. Meaningful time (before or after deprivation?)
c. Meaningful manner (oral hearing?)

Risk of Error/erroneous deprivation:

● When asking what the risk of error was in a certain circumstance, first ask yourself what the
process was and work backwards from there.
● If there is no process in place, the risk of error is extremely high.
Oquendo
Just by understanding how the pieces move around, you become a better litigator. Respond on the
basis of the laws that you know. Respond like a pro as a result.

His theory of the universe is that everything is connected.

There are certain mandatory disclosures you have to make and Scalia says that the amendments create
a further layer of discovery often in relation to irrelevant documents and he complains that this
development runs counter to the adversarial litigation tradition.

Smith v. Barry
● Case is telling us how to approach interpretation of the rules.

17
 ● SDOC believes that the rules shouldn't be construed as "gotchas" but instead should be
construed liberally to embrace the concept of compliance
● Always interpret under Rule 1 --> the rules have to be construed in a way that "secure the just,
speedy, and inexpensive determination of every action and proceeding."
● Scalia's dissent suggests he is worried that someone might use the word "liberally" to mean
going "hog wild."

In his view, civil procedure in the US revolutionized in the 1970s (likely started earlier with the
amendments to the FRCP in 1966 which expanded the class actions) and it led to a backlash afterwards
and attempts to undo what happened, but what occurred could not be eliminated, so it's been
restricted and modified, but it continues happening.

The next cases are all complicated information.

● He considers them "complex litigation" which he considers like pornography "he knows it when
he sees it."
● it involves lots of parties, classes, organizations, gvt institutions, and they're not
necessarily lined up as P v. D but they are all over the place and this litigation is not
backward-looking, but is instead forward-looking (even when it's based on something in
the past) and trying to remedy future harms.
● The role of the judge is very different -- the judge has to be involved and cannot wait passively
for the parties to act but has to instead jump in and must tell herself

In these welfare cases…

● Procedural rights are taken very seriously and the governments cannot say that we provide
benefits and people should be grateful for that and when we decide it's time to terminate, we
can take them away.

Goldberg v. Kelly
● If you have a welfare system you have to recognize procedural due process rights for those
recipients. (To him: this recognizes that "this is not just a gift" and you cannot just take it away
without notice.)
● Assistance is not a privilege but is a right.

Matthews v. Eldridge
● Narrows scope of Goldberg
● Majority says it's not about Eldridge
● Deep dislike of Goldberg, but not enough to overrule, so they save it as a "limit" and say you are
getting procedural rights if you are as bad off as them, but if not, "it's over."
● Eldridge test ~*exists*~ (he believes the court does these when they want to avoid really hard
choices)
● Due Process generally requires consideration and balancing of three distinct factors:
o The private interest that will be affected by the official action
o The risk of an erroneous deprivation of such interest through the procedures
used (meaning risk of a MISTAKE), and the probable value, if any, of additional
or substitute procedural safeguards
o The Government's interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement
would entail.

18
 ● Thus, the Court determines that Kelly is not a promise to protect against arbitrary determination
of public assistance, but a limits case (for these protections to kick in, it is not enough to show
yourself in a situation similar to that of Goldberg v. Kelly, but it has to be almost as identical in
terms of its gravity).

Leis v. Larry Flint

● Mandamus - an equitable remedy (like an injunction in that way) and the remedy part in the
common law is damages (no injunctions, no mandamus, just damages). Courts of equity can not
only tell to pay damages, but to do this or that. So, a mandamus action --> an injunction against
officials. (an order from a court to an inferior government official ordering the government
official to properly fulfill their official duties or correct an abuse of discretion.)
● Due process does not create rights, but protects those that they already have.
● Bar Licensure is not a property right
● Bound can have two different meanings:
● Res Judicata: because it's a different case, res judicata doesn’t apply, since it's not an
appeal.
● Stare Decisis: but this applies because it's a different case and it is a statement of law as
well. This is what he believes, anyway.

Lassiter
● Whether indigent people get a right to counsel in termination proceedings is determined by the
trial court on a case-by-case basis.
● The way he distills Eldridge (slightly different from THE QUEEN)
● Personal Interest
● Probability of Error
● Collective Interest
● However, Eldridge can still be perverted, because the P wins under Eldridge, but they still
punted the right to counsel to the trial court.

MLB v. SLJ
● In forma pauperis - filing in a way to avoid fees
● Quasi-criminal
● Deems we are quasi-criminal bc of the impact of loss of parental rights.

Case Notes
Wheeler v. Montgomery (1970)(p. 35)
● Another class action, but in CA.
● Released the same day as Goldberg and held that this rule applied to this case as well and
required pre termination hearing.
● Burger & Black, dissenting:
o Procedures for review of administrative action in the welfare area are in their infancy.
Considers this decision to be legislating via constitutional fiat instead of allowing
administrative procedures to govern,
o Recognizes a constitutionalizing syndrome: once some presumed flaw is observed the Ct
then eagerly accepts the opportunity to find a constitutionally rooted remedy.
● Stewart, dissenting

19
 o Doesn't believe that the procedures in NY & CA currently follow violate the constitution
(but it's a close call for him.)

Lovey et al v. Eggleston (p. 39) - COMPLAINT

● Seeking declaratory & injunctive relief under Title II of the ADA, NY State laws, & 14th
Amendment to stop involuntary transfer of their cases to 3 segregated hub centers in NYC.
● Asking to be certified as a class under FRCP 23(b)(1) & (b)(2), declaratory relief, permanently
enjoin NY DSS from implementing the hub centers, order them to stop administration in a way
that is discriminatory, award fees, retain jx over the case until NY DSS fully complies.

Matthews v. Eldridge (p. 49) (1976)

● Narrows scope of Goldberg
● Issue: Does the Due Process Cause require an evidentiary hearing prior to the termination of
Social Security Disability benefits?
● Holding/Reasoning: No. Unlike welfare assistance, which was the subject of Goldberg, SSDI is
not based on financial need. Therefore, the degree of potential deprivation is less than
Goldberg.

CREATION OF MATTHEWS TEST

● Due Process generally requires consideration of three distinct factors:
o The private interest that will be affected by the official action
● The degree of potential deprivation that may be created by a particular decision
is a factor to be considered in assessing the validity of any administrative
decision making process
o The risk of an erroneous deprivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute procedural safeguards
● Central to the evaluation of any administrative process is the nature of the
relevant inquiry.
● Procedural due process rules are shaped by the risk of error inherent in the
truth finding process as applied to the generality of cases, not the rare
exceptions.
● Reversal rate statistics are a relevant means of evaluating the adequacy of the
pre termination process, but it is not controlling.
o The Government's interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement would
entail.
● Financial cost alone is not a controlling weight in determining due process
requires a particular procedural safeguard prior to some administrative
decision.
● But the government's interest and hence that of the public in conserving
financial resources has to be weighed
● At some point, the benefit of an additional safeguard to the affected
individual/society in terms of assurances that an action is just may be
outweighed by the costs.
Dicta:
● The ultimate balance involves a determination as to when, under our constitutional system,
judicial-type procedures must be imposed upon administrative action to assure fairness.

20
Brennan & Marshall, dissenting:
● Believes that Eldridge should have had a pretermination hearing
● The belief that discontinuation of disability results in a limited deprivation is speculative, not an
argument against pretermination.
● The very legislative determination to provide disability benefits without any prerequisite
determination of need in fact, presumes a need by the recipient.

Leis et al v. Flynt (1979) (p. 56)

● Due process does not create property interests, rather it extends various procedural safeguards
to certain interests that stem from an independent source such as state law.
● To be enforceable, a claim of entitlement under state law must be derived from statute or legal
rule or through a mutually explicit understanding.
● Pro hac vice does not have a basis in federal law, because the Constitution does not require that
b/c a lawyer has been admitted to the bar of one state, he or she must be allowed to practice in
another.
● THUS: An out of state lawyer's interest in appearing pro hac vice in another state's court is not a
property right granted by statute or the Constitution.
Stephens, Brennan & Marshall, dissenting
● Believes that a lawyer's interest in pursuing their calling is protected by the DPC.
● Judicial construction of the words life, liberty, or property is not simply a matter of applying the
precepts of logic to accepted premises, but instead experience and judgment that have
breathed life into the Court's process of constitutional adjudication.

Lassiter v. DSS of Durham, NC (1981)(p. 61)

Issue: Does the Due Process Clause always require the appointment of counsel when a State seeks to
terminate an indigent's parental status?

Holding: No. The Eldridge factors apply on a case by case basis and it can't be said that the Constitution
requires the appointment of counsel in every parental termination proceeding. Instead, they rely on the
Scarpelli standard whereby the appointment of counsel for an indigent parent is to be answered in first
instance by the trial court, and then subject to appellate review.

● "For all its consequence, “due process” has never been, and perhaps can never be, precisely
defined. Rather, the phrase expresses the requirement of “fundamental fairness,” a
requirement whose meaning can be as opaque as its importance is lofty. Applying the Due
Process Clause is therefore an uncertain enterprise which must discover what “fundamental
fairness” consists of in a particular situation by first considering any relevant precedents and
then by assessing the several interests that are at stake."
● As a litigant's interest in personal liberty diminishes, so does their right to appointed counsel.
● a court deciding on parental rights "need not ignore a parent's plain demonstration that she is
not interested in attending a hearing."
● In its Fourteenth Amendment, our Constitution imposes on the States the standards necessary
to ensure that judicial proceedings are fundamentally fair. A wise public policy, however, may
require that higher standards be adopted than those minimally tolerable under the Constitution.
The Court’s opinion today in no way implies that the standards increasingly urged by informed
public opinion and now widely followed by the States are other than enlightened and wise.
Burger, J. concurring

21
 ● Believes that termination in this case was in the best interest of the child & not punitive of a
parent who had committed crimes.
Blackmun, Brennan & Marshall, dissenting:
● The Court avoids what seems to me the obvious conclusion that due process requires the
presence of counsel for a parent threatened with judicial termination of parental rights, and,
instead, revives an ad hoc approach thoroughly discredited nearly 20 years ago in Gideon v.
Wainwright, 372 U.S. 335 (1963).
● I do not believe that our cases support the “presumption” asserted . . . that physical
confinement is the only loss of liberty grievous enough to trigger a right to appointed counsel
under the Due Process Clause. Indeed, incarceration has been found to be neither a necessary
nor a sufficient condition for requiring counsel on behalf of an indigent defendant.
● Rather than follow this balancing process to its logical conclusion, the Court abruptly pulls back
and announces that a defendant parent must await a case-by-case determination of his or her
need for counsel. . . . This conclusion is not only illogical, but it also marks a sharp departure
from the due process analysis consistently applied heretofore. The flexibility of due process, the
Court has held, requires case-by-case consideration of different decision-making contexts, not of
different litigants within a given context.
Stephens, J. dissenting:
● Deprivation of parental rights is even more serious than deprivation of liberty while
incarcerated, and should be protected by 14th amendment.

S.L.J. v. M.L.B. (1996) (p. 83)

● Procedure: Indigent mother lost termination of parental rights hearing in Miss. Chancery Court,
appealed, but would have to pay fees.
● SCOTUS: Just as a state may not block an indigent petty offender's access to an appeal afforded
by others, a state court may not deny an indigent party appellate review of the sufficiency of the
evidence on which the trial court found her unfit to remain a parent.
● We observe first that the Court’s decisions concerning access to judicial processes, commencing
with Griffin [v. Illinois, 351 U.S. 12 (1956),] and running through Mayer, reflect both equal
protection and due process concerns. The equal protection concern relates to the legitimacy of
fencing out would-be appellants based solely on their inability to pay core costs. The due
process concern homes in on the essential fairness of the state-ordered proceedings anterior to
adverse state action. We place this case within the framework established by our past decisions
in this area. In line with those decisions, we inspect the character and intensity of the individual
interest at stake, on the one hand, and the State’s justification for its exaction, on the other.
● SCOTUS general rule is that fee requirements ordinarily are examined only for rationality, the
State's need for revenue to offset costs, in the majority of cases, satisfies the rationality
requirement.
o Two exceptions:
● The basic right to participate in the political process as voters and candidates
can't be limited to those who can pay for a license.
● Nor may access to judicial processes in cases criminal or quasi criminal in nature
turn on an ability to pay
o IN THIS CASE: the sanctions at issue are not merely disproportionate in impact, but
instead wholly contingent on one's ability to pay and thus visit different consequences
on two categories of people. They apply to all indigents and do not reach anyone
outside of the class.

22
 ● Kennedy, J., concurring:
o Due process is a sufficient basis for cases involving procedures that affect the rights and
privileges inherent in family and personal relations.
● Rhenquist, J., dissenting:
o Would not extend the Griffin line of cases to invalidate a state's refusal to pay for
petitioner's right to a transcript.
o Does not believe that the majority's holding here can be contained but will inevitably be
extended to a whole host of cases.
o Is a racist, basically.

Gilmore v. Utah (p. 93)(1976)

● Next friend, D's mother, filed to stay execution on behalf of her son, who waived his right to
appeal.
I: Does Gilmore, as next friend, have standing?
H: No. Jurisdiction in a next friend case would arise only if it were demonstrated that D is unable to seek
relief on his own behalf. Since D filed a response and appeared on his own behalf, the basis of NF
Gilmore is necessarily eliminated. The only exception would be if the record suggested, despite
representations of D's attys, that D himself is incompetent to waive his right of appeal under law and
was at the current time incompetent to assert rights or to challenge next friend standing.
● Stevens & Rehnquist, concurring:
o Record supports that D was competent to waive his own right to appeal and that it
makes clear his access to court was unimpeded, so a 3rd party has no standing.
● White, Brennan & Marshall, dissenting
o Raise concerns about the validity of the death penalty and think that there is no jx
barrier to addressing the question of mom's petition.
● Marshall, J., dissenting
o Agree with White that a criminal defendant has no power to agree to be executed under
an unconstitutional statute.
o 8th Amendment not only protects the rights of individuals to not be victims of cruel &
unusual punishment, but also expresses a fundamental interest of society in ensuring
that state authority is not used to administer barbaric punishments.
o Also can't agree that Gilmore was competent to wave his right to appeal.
● Blackmun, J., dissenting
o Would have given plenary consideration to the issue of Mom's next friend standing,
because the constitutional issue is substantial in this case.

Other Book Notes

Subordination, Rhetorical Survival, and Sunday Shoes: Notes on Hearing of
Mrs. G
● State overpaid and charged Mrs. G with fraud, which would have resulted in termination of
benefits. The attorney who wrote the L. Rev. article was in legal aid at the time.
● Two ways to go with litigation -- estoppel (following advice of welfare worker that was incorrect)
or a broad reading of the life necessities waiver.
● Ultimately went with both, was denied by the hearing officer, appealed under APA to chief
hearing officer, and then the state ultimately decided it wouldn't be fair to terminate her
benefits/require repayment.

23
Class 3 - Standing
Class Notes
We started with an introduction, and we used the discussion of the rules to reflect on the rules in an
advanced way (see also: Kafka), and then we looked at the process of enacting the rules and Smith v.
Barry re: rule interpretation and the Constitutional underpinnings and, in a way, he was trying to
convince us that the very significant transformation occurred in the 1960s/early 1970s to create the new
model of adjudication.

The first cases: built around the constitution and the subsequent cases were based off this
interpretation of due process --> very progressive, and then there was a backlash, but it still exists today
in a limited form.

Standing: the issue of representation. When you come in and speak for someone else. This can occur in
different contexts and we can see how things "go"

Gilmore
● Comes to SCOTUS originally as a stay
● Mom comes in as "next friend"
o Representing someone else's interest before the court
o He believes it is an "age old mechanism" of the common law tradition.
o Institution does not require next of kin, however, still needs to be unavailable
● There is no controversy here b/c it's Gary's case and he chose not to pursue it..
o Thinks there's another argument the lawyer should have made that it really isn't about
Gary, but more about whether death penalty imposed unconstitutionally affects
everyone (this would have been gutsy, but, he thinks it could have worked --> Rick
pointed out Sierra Club happened only a few years before & shot down this kind of idea)
o Interest of Betsy Gilmore is not generalized, it's specific to her son and should seek an
injunction, but she's a personal injury in fact. There are, however, issues related to the 4
prongs of the test (balance of equities/public interest)
● Stevens: access to the courts was unimpeded and a 3rd pty has no standing to litigate on D's
behalf.
● Next Friend may have contained a concession that the case was about Gilmore, and if you try to
bring the mother in directly, you can say you're not conceding that point, but it's more about
society generally.

REMEMBER: Whatever happens in court is not the entire struggle, it's merely part of it
● Sometimes you might lose in Ct and win, generally.

Wants us to think about crazy arguments (e.g., Life Necessities --> Mrs. G story in the LR article) and try
both arguments when they come up, instead of being super committed to one of them.

Decisions of the Court are different from Orders of the Court, and the determination is very short in an
Order.

PLURALITY (LUJAN): General interest is the business of executive/leg branches, not of the courts

24
 ● He finds the fact that citizen action is not clearly an invitation to the kinds of suits brought in
that case, but if it had been, it would have been unconstitutional --> he finds this interesting
● But, note, the Gvt has a monopoly on the public interest
● Qui Tam cases - someone can sue on behalf of the public interest (statutorily-granted)
● Individualized, particularized interest is needed first and then you can argue on behalf of the
public interest

Citizen Suits
● Legally particularized

There is a kafka element re: struggle with SCOTUS to get more time to formulate their arguments

Whitmore (individually and as next friend) v. Arkansas

● Establishes the test for Next Friend
● Speculative Injury =/ injury in fact
o Need actual INJURY
● Requirements for standing cannot be waived
● Test for Next Friend
o Actually needs to be inaccessible, disabled etc.
o Truly dedicated to the best interests of the person whose behalf he seeks to litigate
o Next Friend must have some significant relationship w/ the real party

Sierra Club v. Morton

● Realm of Equity
● Preliminary Injunction --> because if you don't get one, by the time the perm injunction
happens, it is likely too late.
● Injury in Fact was necessary, and they did not show it, even though the type of injury they
alleged was sufficient.
● If you don't have a stake, you need statutory authorization, but otherwise, you do need that
● Aesthetic injury can be sufficient, but it has to be individualized.
● NEED INDIVIDUALIZED INJURY
o IDEALLY ECONOMICALLY
● BUT DOESN'T NECESSARILY HAVE TO BE ECONOMICALLY
o Once standing is asserted, you can assert the interests of the general public in support
of claims for generalized relief
● Dissents
o Douglas: wants inanimate objects to have standing through third parties, and he thinks
that this is enough as long as they represent the interests of the thing.

Lujan v. Defenders of Wildlife (Plurality)

● Granted cert to deal with standing.
● Believes it takes Sierra Club to another level
● Plaintiff must show imminent and present injury, and what was invoked must suffice
o Intent to go somewhere in the future is not enough
● Must also establish a nexus between the injury and the D's conduct and the redressability of the
action if they get a favorable verdict
● Kennedy: more open to citizen suits, generally

25
 ● Stevens: rejects non imminent argument, but concurs because he believes that statute doesn't
apply to foreign countries
● Blackmun: Argues it's a procedural injury and the court should be allowed to hear procedural
injuries and Congress can't limit that.

Clapper v. Amnesty International

● Respondents cannot manufacture standing by choosing to make expenditures based upon
hypothetical future harm.
● This, in his opinion, is even stricter than previous cases re: standing
● Injury in fact must be fairly traceable to the statute itself at the center of the litigation
● Injury must be impending and not simply an objectively reasonable likelihood of injury
● Breyer (dissent): reasonably probable should be the standard instead

Think about whether the standard the majority formulates in Clapper will grant standing not merely for
people who are not at risk but instead have actually suffered

Case Notes

Whitmore v. Arkansas (1990) (p. 110)

I: Does a third party death row inmate have standing to challenge the validity of a death sentence
imposed on someone who did not exercise his right to appeal to the State Supreme Ct?
H: No, the third party in this case has exhausted his remedies and a speculative injury that because the
SSC failed to review other party's conviction this conviction wouldn't be in the comparative review does
not amount to an injury in fact.

I: Can a citizen of a state invoke the public interest protections of the Constitution (in this case 8th
Amendment)?
H: NO. This sort of allegation raises only the generalized interest of all citizens in constitutional
governance, which is an inadequate basis for standing.
● "This court has repeatedly held that an asserted right to have the gvt act in accordance with law
is not sufficient, standing alone, to confer jx in a federal court." quoting Allen v. Wright.

I: What is next friend standing?

H: It is a long accepted basis for jx in certain, limited circumstances. Most frequently next friends appear
in court on behalf of detained prisoners who are unable, usually b/c of mental incompetence or
inaccessibility, to seek relief themselves. A next friend doesn't become a party to the habeas action in
which he participates, but simply pursues the cause on behalf of the detained person, who remains the
real party in interest. Codified at 28 U.S.C. § 2242.

I: What is the test for Next Friend Standing?

H: It is not granted automatically to whoever seeks to pursue an action on behalf of another. Decisions
to apply next friend in habeas typically require a showing that:
1. There is an adequate explanation (disability, incompetence, inaccessibility) why the true party
can't appear.
a. This is not satisfied when an evidentiary hearing shows that the D has given a knowing,
intelligent & voluntary waiver of his right to proceed

26
 b. While not required, a hearing on mental competency will obviously bear on wheether
the D is able to proceed on his own behalf.
2. The next friend must be truly dedicated to the best interests of the actual party in interest.
3. Sometimes Next friend has a significant relationship with the real party.
**BOP is on the next friend to CLEARLY establish propriety of next-friend status**

Other good quotes:

● It is not for the Ct to employ untethered notions of what might be good public policy to expand
jx in an appealing case.

Marshall & Brennan, dissenting

● Believes death sentences should have mandatory appellate review that can't be waived
● Since next friend is common law, there's no impediment to deciding underlying case on the
merits and the relaxation of next friend is warranted in this case because of their claim that
appellate review is mandatory in death penalty cases under 8th and 14th amendments.
● Interest in preventing a suit by an uninvited meddler is far less than unwarranted deaths for
death row inmates.

Sierra Club v. Morton (1972)(p. 117)

● In Baker v. Carr ct held that standing depends upon whether the party has alleged a personal
stake in the outcome of the controversy. But, when Congress has authorized public officials to
perform certain functions according to law, and has provided by statute for judicial review of
those actions under certain circumstances, the inquiry as to standing must begin with a
determination of whether the statute in question authorizes review at the behest of the
plaintiff.
● UNDER § 10 of APA, individuals have standing for judicial review of agency decisions is when:
o they allege that the challenged action had caused them “injury in fact,” and
o where the alleged injury was to an interest “arguably within the zone of interests to be
protected or regulated” by the statutes that the agencies were claimed to have violated.
● [Palpable] economic injuries have long been recognized as sufficient to lay the basis for
standing, with or without a specific statutory provision for judicial review.
● Aesthetic and environmental well-being, like economic well-being, are important ingredients of
the quality of life in our society, and the fact that particular environmental interests are shared
by the many rather than the few does not make them less deserving of legal protection through
the judicial process. But the “injury in fact” test requires more than an injury to a cognizable
interest. It requires that the party seeking review be himself among the injured.
o An organization's mere interest in the problem, no matter how longstanding and no
matter how qualified the organization is not enough, by itself, to establish standing
under § 10 of the APA.
o They need to have a DIRECT STAKE in the outcome.
● ONCE you have standing under a showing of injury in fact THEN you can assert interests of the
general public in support of their claims for equitable relief. BUT MUST HAVE AN INJURY FIRST.
● Douglas, J. Dissent:
o Wants to have standing for environmental issues to be litigated before federal
agencies/courts in the name of the inanimate object that will be ruined by
development/government action.

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 oThinks people who have ever once enjoyed nature have standing to challenge these
things.
● Brennan, J., dissenting:
o Would adopt 2nd of Blackmun's two alternative theories of standing and rule on the
merits.
● Blackmun, J., dissenting:
o Would recognize standing in this case under 1 of 2 theories:
● Allow Sierra Club to amend its complaint to meet requirements majority
imposed re: standing. If they can't find someone among them who is among the
injured, their case then collapses.
● Permit an imaginative expansion of our traditional concepts of standing in order
to enable an organization such as the Sierra Club, possessed, as it is, of
pertinent, bona fide, and well-recognized attributes and purposes in the area of
environment, to litigate environmental issues. This incursion upon tradition
need not be very extensive.
▪ As I read what he has written, he makes only one addition to the
customary criteria (the existence of a genuine dispute; the assurance of
adversariness; and a conviction that the party whose standing is
challenged will adequately represent the interests he asserts), that is,
that the litigant be one who speaks knowingly for the environmental
values he asserts.

Lujan v. Defenders of Wildlife (1992)(p. 125) PLURALITY

TO GET STANDING:
1. P must have suffered an injury in fact, aka: an invasion of a legally protected interest that:
a. Is concrete and particularized; AND
b. Actual or imminent and not conjectural or hypothetical
2. There must be a causal connection between the injury and the conduct complained of
a. The injury has to be fairly traceable to the challenged action; AND
b. Not the result of the independent action of some third party not before the court
3. It must be likely as opposed to merely speculative that the injury will be redressed by a
favorable decision.
BOP re: Standing:
● The party invoking jx bears the burden of establishing the elements.
o MORE THAN A PLEADING REQUIREMENT, BUT RATHER AN INDISPENSIBLE PART OF THE
P'S CASE, EVERY ELEMENT MUST BE SUPPORTED IN THE SAME WAY AS ANY OTHER
MATTER ON WHICH THE P BEARS THE BOP.
● So, evidence of standing needs be more concrete as it moves through the
successive stages of litigation
● At pleading stage general factual allegations of injury resulting from D's conduct
may suffice (but remember: this was pre-IQBAL)
● At summary judgment, the P can't rest on mere allegations but must set forth by
affidavit or other evidence specific facts which for the purposes of the summary
judgment motion will be taken as true.
● At the final stage, these facts must be supported adequately by the evidence at
trial.

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● Injury in fact test requires more than an injury to a cognizable interest. It requires that the party
seeking review be himself among the injured. Respondents have to submit affidavits or other
evidence showing, through specific facts, not only that the listed species was in fact being
threatened by funding activities abroad, but also that one or more of respondents' members
would thereby be directly affected apart from their special interest in the subject.
● Suits challenging not specifically identifiable Gvt violations of law, but the particular programs
agencies establish to carry out their legal obligations are, even when premised on allegations of
several instances of violations of law, are rarely if ever appropriate for federal-court
adjudication.
o Very difficult even for someone who is actually party to the litigation to establish
standing, but more difficult to do for third parties.
● Standing is not an ingenious academic exercise in the conceivable, but requires, at the summary
judgment stage, a factual showing of perceptible harm.
● Past exposure to illegal conduct does not in itself show a present case or controversy re:
injunctive relief if unaccompanied by any continuing, present adverse effects.
● Someday intentions, without any description of concrete plans, or indeed any specification of
when the someday will be do not support a finding of the actual or imminent injury required to
show standing.
● Vindicating the public interest including the public interest in the Government's observance of
the Constitution and laws is the function of congress/executive, not judicial branch.
o If the concrete inquiry requirement re: public interest implicates separation of powers,
the court will probably punt it/decline.

● Kennedy & Souter, J., concurring:

o While it does not matter how many persons have been injured by the challenged action,
the party bringing suit must show that the action injures him in a concrete and personal
way. This requirement is not just an empty formality. It preserves the vitality of the
adversarial process by assuring both that the parties before the court have an actual, as
opposed to professed, stake in the outcome, and that the legal questions presented . . .
will be resolved, not in the rarified atmosphere of a debating society, but in a concrete
factual context conducive to a realistic appreciation of the consequences of judicial
action.
● Stevens, J., concurring:
o Agrees w/ judgment b/c he doesn’t read the statute to implicate foreign gvts. Does NOT
agree that respondents lack standing because the threatened injury to their interest in
protecting the environment and studying endangered species is not “imminent.” Nor do
I agree with the plurality’s additional conclusion that respondents’ injury is not
“redressable” in this litigation.
● a person who has visited the critical habitat of an endangered species has a
professional interest in preserving the species and its habitat, and intends to
revisit them in the future has standing to challenge agency action that threatens
their destruction. Congress has found that a wide variety of endangered species
of fish, wildlife, and plants are of “aesthetic, ecological, educational, historical,
recreational, and scientific value to the Nation and its people.”
● Blackmun & O'Connor, dissenting:
o Thinks parties have standing and are at risk of injury. Thinks Plurality's decision will
amount to slash and burn environmental laws.

29
 o To survive petitioner’s motion for summary judgment on standing, respondents need
not prove that they are actually or imminently harmed. They need to show only a
“genuine issue” of material fact as to standing. Fed. Rule Civ. Proc. 56(c). This is not a
heavy burden. A “genuine issue” exists so long as “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party [respondents].”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). This Court’s function is not
[it]self to weigh the evidence and determine the truth of the matter, but to determine
whether there is a genuine issue for trial. Id., at 249.

Clapper v. Amnesty International (2013)(p. 135)

● Cannot manufacture standing based on hypothetical future harm that is not impending, because
it is well-established that threatened injury must be certainly impending and even if they were
able to demonstrate this, it has to be fairly traceable to the action (in this case: collection of data
that would render them likely to be targets of surveillance under § 1881a).
● Article III limits federal courts' jx to certain cases and controversies; the law of Art. III standing,
which is built on separation-of-powers principles, serves to prevent the judicial process from
being used to usurp the powers of the political branches.
● A statute that merely authorizes but does not mandate/direct an action by the gvt is not enough
to support this as the action at issue is merely conjectural.
● Cts reluctant to endorse standing theories that require guesswork as to how independent
decision makers will exercise their judgment.
● Cannot manufacture standing merely by inflicting harm on themselves based on their fear of
hypothetical future harm that is certainly not impending.
o So: bringing a case because of costs they incurred in response to a speculative threat is
NOT ok.
● The assumption that if the party raising the claim. Has no standing to sue, no one would have
standing to sue, is not a reason to find standing.

● Breyer (Ginsburg, Sotomayor, Kagan), dissenting:

o Doesn’t believe injury here is speculative
o Would extend Lujan to the conduct at issue here, b/c it is likely to cause an injury that is
concrete and particularized, actual or imminent, and redressable by a favorable
decision.
o In some standing cases, the Ct has found that a reasonable probability of future injury
comes accompanied with present injury that takes the form of reasonable efforts to
mitigate the threatened effects of the future injury/prevent it from occurring.
Standing – From Con Law
Case and controversy/Justiciability Doctrines
● Justiciability doctrines (need all 4)
o Standing: Whether Plaintiff is the proper party to bring the matter.
● Injury: P has been injured/under threat of imminent injury
● Must have personally suffered injury
● Injunctive relief: likely to suffer continuing imminent harm
● Resolution: P must show that injury is fairly traceable to D’s alleged unlawful
conduct and likely to be redressed by requested relief (Allen v. Wright.)
● No 3rd party standing -- can’t present another’s case UNLESS it meets all other
standing requirements & one of these:

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 ● Sufficiently close relationship btwn D & injured 3rd party (e.g., dr/pt in
abortion cases)
● Individual 3rd party is unlikely to assert their own rights
● Organizational standing:
● Individual member in the organization has standing;
● Interest is germane to organization’s purpose; and
● Neither claim/relief require the individual’s participation.
● FREE SPEECH: Vagueness/Overbreadth.
● STATE STANDING 🡪 Mass v. EPA
● No generalized grievances: P cannot sue solely as a citizen/taxpayer to get the
government to follow its own laws.
o Ripeness: may federal court grant pre-enforcement review of a statute?
● TYPICALLY NO 🡪 need to violate a law first
● Declaratory judgement:
● Hardship will be suffered w/o pre-enforcement review (greater the
hardship, the more likely the review)
● Fitness of issues & record for judicial review.
● Any reason to wait until the actual case occurs? If so, less likely
to be ripe.
o Mootness: If events, after filing the lawsuit end the injury => ends the lawsuit. You need
CONTINUING INJURY. Exceptions:
● Wrongs capable of repetition but evading review (Roe v. Wade)
● Voluntary Cessation: if D stops practice to avoid lawsuit but can continue at any
time 🡪 not moot.
● Class Actions: So long as 1 member has ongoing injury, this is not moot.
o Political Question: Allegation of Constitutional Violations that a Court won’t adjudicate.
● BAKER FACTORS APPLY HERE
● Baker Factors: When is an issue such that the separation of powers is
engaged? Are we stepping into something that isn't the court's business?
LIKELY ON THE EXAM
● First 3: Types of things that the Court doesn't normally do
(a) commitment of the issue to a branch of government other than the judiciary;
● It's not for us on the document
(b) lack of standards for resolving the issue;
● Things that don't happen within the judicial process
● We can't reach the decision using the tools we normally use
(c) impossibility of the judiciary to resolve the issue without first making a policy
determination;
● Even if we have the tools to reach a decision, it causes us to engage in
something that forces us to engage in another branch's powers.
● Last 3: the ones that, if the court does this, would create a mess (Professor
doesn't think these 3 make much sense)
(d) a judicial decision of that matter as a lack of respect for other branches of
government;
● Structurally, it's of the basket of issues the court normally does, but they
are engaging in a pattern of judicial decision making that downgrades
another branch
(e) a political decision has already been made; or

31
 ● State of emergency because of a war or some other thing that requires
them to adopt a political decision that's already been made
(f) the potential for multiple pronouncements by various branches on one
question.
● By taking a bunch of cases that deal with undoing a larger policy by little
slices is engaging in economic policy or something

California v. Texas:
Test re: directly traceable to show injury conveys standing & who bears the burden:
● P bears the burden of showing that the D's actual action has caused the substantial risk of harm.
● Where a causal relation between injury & challenged action depends upon the decision of an
independent third party "standing is not precluded, but it is ordinarily substantially more
difficult to establish." To satisfy their burden, the P must show at the least "that third parties
will likely react in predictable ways." At the summary judgment stage, such a party can no
longer rest on mere allegations, but must set forth specific facts that adequately support their
contention.
● The predictable effect of Gvt action on the decisions of third parties but also on comprehensive
studies, rather than mere speculation are required.

Class 4 – Preclusion/Justiciability/Appellate Review

Class Notes
Follow-Up Points
Scalia statement on the modification of the rules re: Discovery; it exists, but it was moved to chapter 8
of our reading/assignments. We will discuss this in more detail then.

US Legal issues are treated as legal issues, but foreign/international law/legal questions are treated as
factual matters in the US ==> brought in the same way as factual matters, there's an expert who comes
in. "This is the way this law works" Here is an expert to support this justification. (A Legal Q treated as a
factual one). We will see the details later on & dive into this deeper re: discovery and
interrogatories/depositions (written or oral --> most of the time oral, but don't have to be),
requirements of admission, inspections etc.

Article re: Mrs. G

● Two strategies, why not use both? So they do.
● We have a lot of stuff/materials, so we can't go into everything. But please don't just accept his
picks/choices and you can bring whatever you want to class (WHAT A CHAOTIC KING).

** Lovely Case (complaint etc.) is going to follow us throughout the semester ***
● An answer is very boring (see: Lovely answer)

Cause of Action
● Usually the enactment of a statute presents you with a cause of action. (which he is calling a
ticket to ride).
● Sometimes people instead use the constitution
● 5th amendment doesn't have equal protection, it's in the 14th amendment, but SCOTUS reads
the 14th amendment as extending equality into the 5th amend DPC (implied COA)

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Now: You have a cause of action in the causes of action that have been decided re: 5th amend but likely
wouldn't be extended (in his opinion).

Bivens: If you have a right under the constitution, you have a cause of action UNLESS the enforcement is
committed to another branch of government. The fact that Congress exempted itself under Title VII can
still get remedies from other means.

Bivens: food for thoughts on what is a cause of action, who should define it, etc. This gives you some
guidance for things that are not statutorily defined.

Mullane v. Central Hanover

● Special Appearance: you see me, but I'm not really here, this procedure sucks & you didn't give
them notice/chance to object --> no due process
● They overrule his objections, issue a decree, affirmed by both NY courts, appeals to SCOTUS
o 14th Amendment --> how they got in there
o State's court is the highest authority on its own laws, so you need to appeal via federal
issue
● Due process requires, regardless of whether it’s in personam or in rem, claimants to receive
service of process/notice etc.
● Publication is not enough to serve as notice (especially when it's an adversary who is serving
notice).
● Personal service isn't required but need adequate notice
● Lies at the root of Goldberg v. Kelly

Eisen v. Carlisle
● Accusing the people who set up the system they operate within of violating antitrust laws/acting
like a monopoly to their own benefit
● Antitrust laws: can get 3x the damages (treble damages)
● Only way to challenge is an interlocutory appeal - an appeal to a decision that is not final - but if
you want it in fed system, need district court and appellate court appeal
o So he took an appeal as right (as if he were to have a final decision)
● Analogizing to a prelim injunction: likelihood of success on the merits & irreparable harm etc,
then can issue an injunction
● 23(b)(3) - requires notice of everyone they can identify and plaintiff bears costs

FRCP 23(b) -
o 1: "Coherence" Class Action - when you allow the collective to proceed to prevent inconsistent
adjudications and the risk that D will be required to comply with inconsistent standards of
conduct and whether deciding 1 case will be dispositive of the other
o 2: Injunction - The D is acting in a way that treats the class action as a whole and justifies
injunction. "Representing the group"
o 3: Catch All class action - Aggregation of individual claims (49+)/numerosity
o Citizen Suit - suing on behalf of the community, not a class action, but can resemble
FRCP 23(b)(2) and a contrast with the catch-all
● In a way representing the other, but in a damages claim re: aggregation (23(b)(3) you are
vindicating your own and bringing along everyone else.

Parklane Hosiery v. Shore

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 ● OFFENSIVE NON-MUTUAL COLLATERAL ESTOPPEL (I miss lahav sfm.)
● In a stockholder suit, when you are going to a merger you need to do this by putting out
recommendations for shareholders & there are laws you cannot violate if you include falsehood
or misleading statements. That's the basis of the complaint.
● Issue preclusion: can't use defensive non-mutual collateral estoppel but you can use offensive
non-mutual collateral estoppel unless it's one of the exceptions.

B&B Hardware & Hargis

● Agency adjudication can be preclusive if they function the same way as a court

Case Notes
Davis v. Passman (p. 146) (1979)
● Bivens --> 4th Amendment guarantee against unreasonable search & seizure was a
constitutional right that could be enforced through a private cause of action and damages are an
appropriate remedy.
● Recognizes an implied cause of action under 5th Amendment to enforce Due Process Clause in
federal court.
o federal constitutional right to freedom from gender discrimination under equal
protection aspect of DPC of 5th A.
● A litigant is an appropriate party to invoke the power of the courts if they have a cause of action
under the constitution or statute and that the cause is a necessary element of their claim.
o So, the question of whether a litigant has a cause of action is analytically distinct and
prior to the question of what relief, if any, a litigant is entitled to. The concept of a cause
of action is employed specifically to determine who may judicially enforce the statutory
rights/obligations
● IN ESSENCE TO AVOID 12(b)(6) dismissal:
▪ P shows (first) they have a cause of action under statute or constitution
▪ ONCE SATISFIED: P then must show that their complaint is entitled to
judicial relief.
● In absence of a textually demonstrable constitutional commitment of an issue to a coordinate
political department, the Court presumes that justiciable controversies are to be enforced
through the courts.
o The class of litigants who allege that their own constitutional rights have been violated
& who have no effective means other than judicial enforcement of these rights
From FN (p. 148)
● Jurisdiction is a question of whether a fed ct has the power under the Constitution/US Law to
hear a case
● Standing is a question of whether a P is sufficiently adversary to a D to create an Art III
case/controversy, or to at least overcome prudential limits of fed court jx.
● Cause of action is a q of whether a particular P is a member of the class of litigants that may, as a
matter of law, appropriately invoke the power of the court
● RELIEF is a q of the various remedies a fed ct may make available.
● A P may have a cause of action even though they are entitled to no relief at all, as, for example,
when they sue for declaratory/injunctive relief although they don't meet the standard for that
remedy.

Berger, J., dissenting

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 ● Raises questions of separation of powers and does not agree with the extension of Bivens to
staff employees and other congressional employees. Instead, normally congressional employees
are exempt from employment statutes.

Stewart, J., dissenting

● Would have considered the speech and debate clause first and doesn't believe this is an ancillary
issue.

Powell, J., dissenting

● Expands on Berger dissent re: intrusion onto congressional hiring practices, because Title VII
expressly exempts congressional employees from this statute.

Lovely (Answer) (p. 151)

● Various defenses to the complaint.

Mullane v. Central Hanover Bank & Trust (p. 157)(1950)

● Due Process Reqs of 14th Amendment does not depend on whether the interest of the
proceeding is in rem or in personam.
o Regardless of what type of lawsuit, the Due Process Clause requires, at minimum, that a
deprivation of life, liberty, or property by adjudication is preceded by notice and
opportunity for a hearing appropriate to the nature of the case.
● Notice must be reasonably calculated, under all the circumstances, to apprise interested parties
of the pendency of the action and afford them an opportunity to present their objections.
o So, court balances state interest in adjudication against individual interest protected by
DPC. (basically --> posting in news paper is not enough)
● "The right to be heard has little reality or worth unless one is informed that the
matter is pending and can choose for himself whether to appear or default;
acquiesce or contest."
● Chance of actual notice is not enough (posting in paper), especially when the
notice did not name those whose attention it is supposed to attract.
▪ While court has approved of resorting to publication as a customary
substitute when it's not reasonably possible/practicable to give more
adequate warning, this is not a default when something else is available.

FRCP 23 - marked up starting on p. 163, also check rulebook

Eisen et al v. Carlisle & Jacquelin (p. 168)(1974)

● 28 U.S.C. § 1291 restricting appellate review to "final decisions" prevents the debilitating effect
on judicial administration caused by piecemeal appellate disposition of what is, in practical
consequence, a single controversy.
o This does not limit appellate review to those final judgments that terminate an action,
but rather that the requirement of finality to be given a practical rather than a technical
construction.
● Rule 23(c)(2) provides that in any class action maintained under the subdivision (b)(3) that each
a class members hall be advised that he has the right to exclude from the action on request or to
enter an appearance through counsel and further that the judgment whether favorable or not
will bind all class members not requesting exclusion.

35
 o SO: Ct is required to direct the best notice practicable under the circumstances,
including individual notice to all members who can be identified through reasonable
effort. SO: INDIVIDUAL NOTICE MUST BE SENT TO ALL CLASS MEMBERS WHOSE NAMES
AND ADDRESSES MAY BE ASCERTAINED THROUGH REASONABLE EFFORT.
● Notice requirements cannot be lessened because of a P's inability to pay
● Petitioner must bear the cost of notice to the members of the class, especially when there are
truly adversarial parties.
o Nothing in the history of R23 that gives a ct any authority to conduct a prelim. Inquiry
into the merits of a suit in order to determine whether it may be maintained as a class
action. Instead, P must secure the benefits of a class action only by satisfying the
requirements under R23.
Douglas, J., concurring
● Would have directed the District Ct to give Eisen an opportunity to redefine the class under
either Rule 15 or FRCP 23(c)(4) (to make it a subclass)
● The class action is one of the few legal remedies the small claimant has against those who
command the status quo. Would strengthen it not cut it at its knees.

Parklane Hosiery v. Shore (p. 176)(1979)

● NOTE: District court has BROAD DISCRETION as to whether to apply Offensive Non-Mutual
Collateral Estoppel
o In successive diversity actions, the federal courts apply state law to determine whether
a prior decision has preclusive effect so long as the state law is not incompatible with
federal interests. (Semtek v. Lockheed Martin)
● Offensive non-mutual collateral estoppel (ALEXANDRA LAHAV A TRUE QUEEN):
o The P seeks to foreclose the D from litigating an issue that the D has previously
unsuccessfully litigated in an action with another party.
o Defensive collateral estoppel is when a D seeks to prevent a P from asserting a claim the
P has previously litigated and lost against another D.
o Under res judicata, a judgment on the merits in a prior suit bars a second suit involving
the same parties, or their privities based on the same cause of action. Under the
doctrine of collateral estoppel, on the other hand, the second action is upon a different
cause of action and the judgment in the prior suit precludes relitigation of issues already
litigated and necessary to the outcome of the first action.
● Issue: Is offensive (meaning: by the P) collateral estoppel/issue preclusion where a P tries to
prevent a D from relitigating issues D lost against another P essentially treated the same way as
Defensive collateral estoppel/issue preclusion where P is prevented from asserting a claim that
the P had litigated and lost against another D?
● Holding: No. While a P is not prevented from using it, it's only applied at the trial court's broad
discretion. The general rule should be that in cases where a P could easily have joined in an
earlier action or where the application of offensive estoppel would be unfair to a D, a trial judge
shouldn't allow offensive collateral estoppel.
● Issue: When is offensive non-mutual collateral estoppel unfair to a defendant, and thus
offensive non-mutual collateral estoppel should not be applied?
● Holding:
o If a D in the first action is sued for a small/nominal amount of damages, he may have
little incentive to defend vigorously, particularly if future suits are not foreseeable.

36
 o Allowing it may be unfair if the judgment relied upon as a basis for the estoppel is itself
inconsistent with one or more previous judgments in favor of the D
o Where the second action affords the D procedural opportunities unavailable in the first
action that could readily cause a different result.
o The problem of unfairness is particularly acute in cases of offensive estoppel b/c the D
typically will not have chosen the forum in the first action. Some of these are:
● if the D in the first action was forced to defend in an inconvenient forum and
therefore was unable to engage in full scale discovery or call witnesses
● differences in available procedures
● Issue: Does the use of collateral estoppel violate the 7th amendment right to a jury trial?
● Holding: It does not when the party against whom estoppel is asserted has litigated questions of
fact, and has had the facts determined against them in earlier proceeding. There is no further
fact-finding function for the jury to perform since the common factual issues have been resolved
in the previous action. And the 7th amendment has never been so rigidly interpreted that
application of collateral estoppel is unconstitutional on those grounds. Instead, it's much more
flexible in terms of analysis.
Rehnquist, J., dissenting: Takes an issue with the estoppel under 7th amendment/right to trial because
of the need to "preserve" a jury right and the "unfairness" of estoppel in this context.

B&B Hardware v. Hargis Industries (p. 182) (2015)

● Sometimes two different tribunals are asked to decide the same issue. When that happens, the
decision of the first tribunal usually must be followed by the second, at least if the issue is really
the same. Allowing the same issue to be decided more than once wastes litigants resources &
adjudicators' time, and it encourages parties who lose before one tribunal to shop around for
another. The doctrine of collateral estoppel, or issue preclusion, is designed to prevent this from
occurring.
● Extends issue preclusion to decisions by administrative tribunals (in this case: the Trademark
Trial & Appeal Board) if the ordinary elements of issue preclusion are met.
o Restatement of Judgments and Precedent make clear that issue preclusion is not limited
to those situations where the same issue is before two courts, but instead, it also often
applies where a single issue is before a court and an administrative agency.
● Jury right does not negate the issue-preclusive effect of a judgment, even if that judgment was
entered by a juryless tribunal. This is true regardless of whether the final judgment was made on
the issue in a court or an administrative agency.
● Ordinary preclusion law teaches that if a party to a court proceeding does not challenge an
adverse decision, that decision can have preclusive effect in other cases, even if it would have
been reviewed de novo
● Issue preclusion is not a one-way street, when a district ct, as part of its judgment, decides an
issue that overlaps with part of the administrative agency's analysis, the administrative decision
gives preclusive effect to the court's judgment.
● Issue preclusion is available unless it is "evident" that Congress doesn't want it.
● The fact that an administrative agency may have erred does not prevent preclusion. Instead, the
aggrieved party should seek judicial review of the decision.
● Procedural differences, by themselves, do not defeat issue preclusion.
o INSTEAD: the inquiry is whether the procedures used in the first proceeding are
fundamentally poor, cursory, or unfair.

37
 ● While it is true that issue preclusion may be inapt if the amount in controversy in the first action
was so small in relation to the amount in controversy in the second that preclusion would be
plainly unfair. Restatement 2nd of Judgments § 28 cmt j.

● Ginsburg, J., concurring

o Mentions that for a great many registration decisions issue preclusion will not apply.
● Thomas, J., dissenting
o Does not agree with the presumption of preclusion to administrative determinations
where Congress has failed expressly or impliedly to evince any intention on the issue.
o Does not think that TTAB's decisions are entitled to preclusive effect and raise concerns
re: constitutional implications.

Cooper v. Federal Reserve Bank of Richmond (p. 194) (1984)

● A judgment in a class action suit determining that an employer did not engage in a general
pattern of racial discrimination against the certified class of employees does not preclude a class
member from maintaining a subsequent civil action alleging an individual claim of racial
discrimination against the employer.
● The principles of prior adjudication on a judgment in a properly entertained class action is
binding on class members in any subsequent litigation. Basic principles of res judicata (merger
and bar or claim preclusion) and collateral estoppel (issue preclusion) apply.
● The existence of a valid individual claim doesn't necessarily warrant the conclusion that the
individual P may successfully maintain a class action. It is equally clear that a class P's attempt to
prove the existence of a companywide policy, or even a consistent practice within a given
department, may fail even though discrimination against one or two individuals have been
proven.
● Preclusive effect re: class action:
o Bars the class members from bringing another class action against the D alleging a
pattern or practice during the same time period; and
o Precludes the class members in any other litigation with the D from relitigating the issue
central to the prior adjudication.
o HOWEVER: this judgment is not dispositive of the individual claims alleged in a separate
action where they are not members of the class.
● To hold otherwise would frustrate the purpose of R23

Class Actions – Framework for Analysis

FRCP 23
● FRCP 23(a) - threshold requirement, must meet all 4 to move to FRCP 23(b) analysis
● FRCP 23(b) - must meet one of the 3 prongs

Assessing Subject Matter Jx for Class Actions

You can either get subject matter jx for a class action under federal question sjx OR diversity.

In diversity jx for class action:

● Representative’s citizenship has to be diverse from all defendants (doesn’t matter about other
parties)

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 ● Representative’s claim has to exceed $75,000
● Every other class member technically comes in as supplemental jx.

Steps to Class Certification:

● Must have a class definition
● Must meet all the requirements of 23(a) (numerosity, commonality, typicality and adequacy)
o Numerosity: The class must be so numerous that it would be difficult to join them all
under Rule 20
● General rule of thumb: 41+ Ps ==> ok; less than that ==> no
o Commonality: The class must have a question of law or fact in common with one
another (hardest/most arguable point to prove)
● Is there a common contention in all of P's claims that is capable of class-wide
resolution? (Walmart)
▪ This means determining the truth/falsity of the common contention will
resolve an issue that is central to the validity of each claim
▪ What matters to class certification is not the raising of common
questions, but rather the capability of a classwide proceeding to
generate common answers to drive the resolution of the litigation
(Walmart)
● Is there some question in litigation that will get to the center of everyone's
claim (p. 1099)?
● Common issue(s) must be greater than the individual issues of Ps
o Typicality: The named plaintiff must be typical of the class members
o Adequacy of representation: the named plaintiff must be an adequate representative of
the class
● Must share INTERESTS with the class
● Adequacy is only truly discovered on the back-end, meaning once you've named
the Ps
● AND Must meet one of the requirements of 23(b)
(1) prosecuting separate actions by or against individual class-members would create a risk of:
(aka: limited fund class action)
o Inconsistent or varying adjudications with respect to individual class members that would
establish incompatible standards or conduct for the party opposing the class; OR
o Adjudications with respect to individual class members that, as a practical matter, would be
dispositive of the interests of the other members not parties to the individual adjudications or
would substantially impair/impede their ability to protect their interest
● **These are similar to requirements under FRCP 19(a) - joinder
(2) injunctive relief
o Easier to certify than 23(b)(3) -- civil rights claims/discrimination. Brown v. BOE is a classic
example of this type of claim
o Must show that the party opposing the class has acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.
o Does not need to provide notice and cannot provide opportunity to opt out.
(3) money damages
o Predominance and superiority
● Relevant here (in exam: mention all and weigh):

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 ▪ Class member's interests in individually controlling the prosecution/defense of
separate actions;
▪ The extent and nature of any litigation concerning the controversy already
begun by/against class members
▪ The desirability or undesirability of concentrating the litigation of the claims in a
particular forum; AND
▪ The likely difficulties in managing a class action
o Notice and opportunity to opt-out are required for any claim under 23(b)(3)
● This is true even if a class is certified under 23(b)(2) and 23(b)(3). Any cert under 23(b)
(3) requires notice.

Claim Preclusion – From ADL/OG Civ Pro Version

Claim Preclusion (res judicata)
● Requires a P to assert all matters arising out of the same transaction or incident against the
same party in one lawsuit.
● 1 bite at the apple, you can't relitigate
● 2 conceptual issues to understand re: preclusion
o Timing: when thinking about preclusion & deciding it, decision is on the back end. The
1st suit has been decided.
● Is the second lawsuit ok to move forward or not?
● Always decided by the 2nd court - 1st judge can't decide
● Always retroactive -- did you already have your day in court?
o Thinking of preclusion at the beginning...
● If you don't bring your claim/issue at the beginning you could be precluded and
can't bring it later.
● Think prospectively re: bringing all your issues/claims
● The structure of the FRCP today is very generous on the front end re: brining in
claims and parties -- they want it all in one lawsuit.
● Equally draconian on the back end. If you don't bring it, you lose it.
▪ This doctrine favors finality over fairness.
● Always remember: Everyone is entitled to their day in court, but you only get one day in court.
● ON EXAM: ask whether the litigant was afforded their day in court? If NO, then no preclusion.
● ON EXAM: Where there's 1 lawsuit and they're bringing a 2nd lawsuit, this is ALWAYS a
preclusion question.
o Always, always describe the first lawsuit to see if preclusion is appropriate.
● Cannot be precluded regarding things that happen after the lawsuit has occurred. Anything bad
that happens after filing is fair game for a second lawsuit.
o If ptys receive a judgment on a first breach of K claim, and then, after decided, there is
another, separate breach, this is ok.

Privities: a common-law rule that affects claim preclusion. Essentially when someone else represents
your issue/claim on your behalf, thus you've had your day in court.
● Classic example: parent litigated a child's issue.
o Your agent has been in court so you've already been in court.
● For more detail, check the privities tab.

Dismissal due to lack of SM Jx

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 ● Can file the exact same case in state court
● HOWEVER, they are still bound by the lack of SM Jx and can't refile in a second federal court.

3 Things D must show to argue claim preclusion

1. Final Judgment
a. Must be a valid final judgment on the merits
i. Does NOT mean only summary judgment/verdict
ii. But anything that isn't lack of P Jx or SM Jx, venue, nonjoinder/misjoinder.
Otherwise it is a "final judgment"
1. If you see Jx/Failure to Join, Venue => not preclusive, everything else,
including default judgment = final judgment on the merits
2. "fascinating wrinkle" --> you are bound by the Jx determination (amt in
controversy etc) even if you can try again.
b. Dismissed without prejudice => can refile/try again, not precluded
c. Dismissed with prejudice => cannot refile/cannot try again, precluded
i. Voluntary dismissal w/ prejudice => preclusive (typically in a settlement)
2. Same Claim
a. Transaction or occurrence test - is this part of the same trial package? Is this part of the
same event?
i. once a transaction has caused injury, all claims arising from it must be brought,
or they are lost. Car Carriers -- look at the car carriers under cases section if this
comes up re: facts
3. Same party or privity
a. 6 categories
i. Contract
ii. Legal relationship (owning property together)
iii. Same interest (class actions)
iv. Assumed control where they functionally had day in court
1. So intimately involved that you basically controlled it
v. Proxy
1. I X am arguing for Y to get the thing, and Y already had his day in court
about this thing and lost. Same lawyer is not enough
vi. Statute
**serving as a witness is not privity

Claim Preclusion -- Restatement of Judgments version

● Restatement (Second) of Judgments § 17 (p. 988)
o A valid and final personal judgment is conclusive between the parties, except on appeal
or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, the claim is extinguished and merged in
the judgment;
(2) If the judgment is in favor of the defendant, the claim is extinguished and the
judgment bars a subsequent action on that claim;
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in a
subsequent action between them on the same or a different claim, with respect to
any issue actually litigated and determined if its determination was essential to that
judgment.

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 o Comment (d) states that this is applicable to even erroneous judgments as their remedy is to
have it set aside/reversed
● Restatement (Second) of Judgments § 24 (p. 990)
o When a valid and final judgment rendered in an action extinguishes the plaintiff's claim
pursuant to the rules of merger or bar, the claim extinguished includes all rights of the P
to remedies against the D with respect to all or any part of the transaction, or series of
connected transactions, out of which the action arose
o What factual grouping constitutes a "transaction" and what groupings constitute a
"series" are to be determined pragmatically, giving weight to such considerations as to
whether they form a convenient trial unit, and whether their treatment as a unit
conforms to the parties' expectations or business understanding or usage.
● Restatement (Second) of Judgments § 20 (p. 1001)
o A personal judgment for the defendant, although valid and final, does not bar another
action by the P on the same claim WHEN…
● When the judgment is one of dismissal for lack of Jx, for improper venue, or for
nonjoinder or misjoinder of the parties.
● Restatement (Second) of Judgments § 26 (footnote p. 998)
o Claim preclusion does not apply where the P was unable to rely on a certain theory of
the case or to seek a certain remedy or form of relief in the first action because of the
limitations on the subject matter Jx of the courts or restrictions on their authority to
entertain multiple theories or demands for multiple remedies or forms of relief in a
single action, and the P desires in the second action to rely on that theory or seek that
remedy/form of relief.

Privity Examples for Claim Preclusion

Privity is a common law term used to describe a relationship between a past litigant and a current
litigant such that the latter should be bound by the decision rendered in the former's prior action.

There are 6 types of privities (can describe as privity or non-party preclusion):

1. contract
2. Legal relationship
3. Same "interest" (very narrow -- class actions or fiduciaries)
4. Assumed control where they functionally had day in court
a. Took over the litigation, so intimately involved you're bound by it
5. Proxy, trying on another person's behalf who already had their day in court
a. Doesn't mean they used the same lawyer. You have to show more than that.
6. Statute (e.g. bankruptcy)
a. Won't need to know for exam

More detailed examples include:

● A person acquires an interest in property that has already been the subject of a lawsuit. Thus,
an heir who inherits land, or a successive buyer, is bound by a prior judgment regarding an
easement.
● A party litigates in a representative capacity. A judgment in a suit brought by or against the
trustee may, for example, bind the beneficiary in a subsequent action.
● A close familial relationship exists between a party in the prior case and a litigant in the present
whose claim is derivative of or closely aligned with the former's.

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 o A wife was deemed bound by the outcome of her husband's prior bankruptcy
proceeding, even though she was not a party to it, because the claims she asserted in
the current action derived exclusively from claims asserted by her husband.

● NOTE: family relationship & parallel interests are NOT sufficient in themselves to establish
privity.
o Example: each member of a family injured in an automobile accident has an
independent claim for his/her injuries that is not derivative of the others, and thus
litigation by one family member won't foreclose actions by the others.

Issue Preclusion – ADL /Civ Pro Notes

Issue Preclusion (collateral estoppel)
● To defend successfully on the ground of issue preclusion, the defendant must establish that the
issue of fact sought to be foreclosed actually was litigated and determined in a prior action
between the parties or their privities, and that determination was essential to the decision in
the prior action. (p. 999)
● Settlement of a lawsuit generally carries no issue preclusive effect because no issue has been
actually litigated and determined.
o Also, general verdicts are hard for preclusion because you don't know if it's essential to
the verdict and multiple reasons may exist for why the court decided the way it did.
● Prior proceedings cannot have a preclusive effect where the party against whom preclusion is
now sought had a significantly heavier burden of persuasion with respect to the particular issue
in the prior action, or his adversary has a significantly heavier burden now than in the first
action.
o Meaning: a D in a criminal prosecution where proof must be beyond a reasonable doubt
cannot be precluded from litigating his guilt by a prior judgment of liability in a civil
action where P prevailed upon a mere preponderance of the evidence. HOWEVER, the
reverse scenario, where D is guilty beyond a reasonable doubt precludes relitigating the
issue in a subsequent civil action.
● The most tempting place to use "offensive non-mutual collateral estoppel" (see Parklane) is in a
mass accident.

Issue Preclusion -- Restatement Version

● Restatement of Judgments § 27 (p. 1015)
o When an issue of fact or law is actually litigated and determined by a valid and final
judgment, and the determination is essential to the judgment, the determination is
conclusive in a subsequent action between the parties, whether on the same or a
different claim.
o Things to consider Comment (c) to R2J § 27:
● Is there a substantial overlap between the evidence or argument to be
advanced in the second proceeding and that advanced in the first?
● Does the new evidence or argument involve application of the same rule of law
as that involved in the prior proceeding?
● Could pretrial preparation and discovery relating to the matter presented in the
first action reasonably be expected to have embraced the matter sought to be
presented in the second?
● How closely related are the claims involved in the proceedings

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 ● Hoult requirements for issue preclusion (p. 1020)
o When an issue of fact or law is actually litigated and determined,
o By a valid final judgment,
o AND the determination is essential to the judgment
o Then the determination is conclusive on the identical issue in a subsequent action
between the parties.

Issue Preclusion Test

● Was the person you're trying to use this against a party in the first lawsuit?
o If No ---> cannot use it, they have NOT had their day in court/Due Process
● Same issue (fact or law)
● Actually litigated and determined
o Some kind of hearing (meeting due process requirements)
o Does not have to be a full-blown trial.
● Determination was essential to the judgment
o If that issue had an outcome on the first case, it was essential to the first action and thus
precluded in subsequent actions. BASICALLY: Without this issue, the judgment would've
been different.
● Think: Is this thing that happened and was decided on in the first lawsuit part of
the outcome of the first lawsuit? E.g. If you had a case with 3 elements and you
had to meet all 3 and you didn't meet 1, that's essential to the judgment.
● OR THINK: Did they put their all into this issue in the first lawsuit b/c they
needed to prove it to win???

● Also need to be a valid final judgment that can be used against a party that had their day in
court
o NOTE: It doesn't matter if you were not party to this suit, only that the party you're
trying to use it against did.
● This is non-mutual collateral estoppel
▪ More willing to be used defensively than offensively, although both are
permitted
▪ Defensive non-mutual collateral estoppel
● See test above - was party you're trying to use this against
subject to a valid final judgment on the same issue that was
actually litigated and determined and that determination was
essential to the judgment?
▪ Offensive non-mutual collateral estoppel - see Parklane
● Use test above AND these rules:
● The general rule should be that in cases where a P could easily
have joined in an earlier action or where the application of
offensive estoppel would be unfair to a D, a trial judge shouldn't
allow offensive collateral estoppel.
● Unfairness:
● if the stakes were smaller in first action so D
didn't fully defend

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 ● the D in the first action was forced to defend in
an inconvenient forum and therefore was
unable to engage in full scale discovery or call
witnesses
● there were differences in available procedures
● the prior judgment was inconsistent with ones
where he prevailed
Mutuality (REMEMBER THIS)
Mutuality:
● Claim preclusion must be mutual
● Issue preclusion does not have to be mutual

How to ANSWER Preclusion Q on Exam

The rules of finality operate expansively across many boundary lines -- between State A and State B,
between State and federal courts, between civil and criminal cases. A P cannot generally split her claim
into transactionally related federal and state lawsuits. Issues litigated and resolved between litigants in
state court are precluded from being relitigated in federal court and vice versa. Issues resolved against a
D in a criminal case will usually preclude relitigation by that party in a subsequent civil case.

State --> State: The full faith and credit clause of the Constitution mandates that a court in State B
accords a judgment rendered in State A the same preclusive effect the judgment would have in State A.

State --> Federal: 28 USC § 1738 imposes the same "full faith and credit" obligations on federal courts
with regard to judgements of any state court.

Federal --> State: Where the judgment was entered in a federal question case (§1331), it is accorded the
same preclusive effect that the federal common law provides. For diversity case judgments § 1332,
Semtek mandates that federal common law incorporates the preclusion rules that would be applied by
the state courts in the state in which the judgment was rendered.

Class 5 – Arbitration & Class Actions

Class Notes
ADL Notes re: Class Actions
● Class Actions - Get to preclude non-parties who meet the class definition.
● Due process issue
o Allows you to bind total strangers if they meet the class definition & wrap up the claim
● Provides Ps together to add their claims & otherwise couldn't bring b/c the $$
isn't there
● Benefit to D b/c it allows them to close off future litigation
o Downsides:
● P - unfair, their claim could get wrapped up with others
● D - scary/bet the company
● Suffering different harms is not a good basis for class action, you must have commonality
● Mass torts are controversial for class action b/c of the different harms suffered

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 ● Class actions are usually settled for a lump sum and lawyers get a cut of that amount.
o Agent-principal problem: lawyer + principle represent everyone; don't need all parties'
consent to settle
o In a class action, a judge HAS to review settlement and make sure its fair and equitable

What does it mean if a class action is certified?

If a class action is certified it is preclusive as to all class members, even absent class members.
To bind absent class members as a matter of due process, the following requirements must be met:
● Class representative must adequately represent the class by sharing interests with the class.
o If it was settled for only currently sick people and closed out people who get sick later --
> does not share interests and can be reopened.
● In a money damages class, notice and the opportunity to opt out are also required.

Oquendo
We have been following this litigation from the beginning and after the documents today we won't be
confronting others until the very end of the class (when we will examine the tentative agreement on
fees)

B&B Arbitration
● Administrative Decisions can be issue preclusive just like actual litigation
● US one of the only countries who do issue preclusion
● Thomas (Dissent) - Administrative Agencies are not accepted at common law and should not
extend to them.

Cooper v. Fed Reserve Bank

● Class Intervention (he finds the class intervention to be very unique) --> so you have intervenors
who are intervening as a class (so you have creativity)
● Unsuccessful intervention attempt by Baxter and friends
● Trial Judgment - establishing discrim on two pay grade levels, but not in others, and also
determining the q of discrim in individual cases (individual intervenors)
● Appellate Judgment - Against the pattern of discrim claim & against certain individual claims,
then there is a res judicata judgment against any other individual claim that comes in
● SCOTUS reversal on res judicata judgment
● Finding re: discrimination with some but not others and there is a move to intervene and that's
denied and they file a separate action, they deny motion to dismiss, but certify interlocutory
appeal (those motion require approval by District Court & Appellate Court), and the bank had an
appeal for judgment on merits => consolidates the two, reverses on merits and also reverses on
denial of motion to dismiss in action of baxter claimants and remand for such dismissal and
SCOTUS grants cert and reverses
● This is a case he finds useful when questions come up in questions he's working on/researching
because it is one of the few opinions of SCOTUS that establishes basic principles clearly
o Class determination and the decision binds all class members (particularly pertinently --
> covers absentees, who may not have even known about litigation)
● Other side of the coin: D, if they prevail on the merits, has res judicata on
everybody.
o It also tells us what happens to individual claims under these circumstances.
● So, it helps illustrate contrasts between individual and collective claims.

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 ● Essentially: If you WIN --> everybody profits; if you LOSE ---> everybody loses in the CLASS
o But individual claims can still go forward.
● Class bound by the fact that there was no pattern of discrimination

Ch 5 (Settlement)
● Went back to the Answer (p. 151)
o The structure of this is interesting to him. "The answer Denies, except admits…"
o Remember: have to take a position on everything otherwise you're taken to admitting it
o Paragraph 8: "denies knowledge or info sufficient to form a belief as to the truth of the
allegation"
o First part deals with allegations, then second part brings defenses ("ok let's look at this
from another lens"
● Failure to state a claim where you can be relief can be granted (12b6/Twombly);
A "so what" motion. You need to throw it in there even if it's unlikely to work
b/c you want to get rid of it fast and cheap
● Qualified Immunity - I have immunity against charges here (for government
officials etc.)
● First part of 169 -> another justification for dismissal under 12b6 and the rest is
boilerplate
o What could you do if they buy this "such other and further relief as the Court deems just
and proper…" boilerplate?
● Amend the Complaint
● His idea is to also go back to Rule 1 --> the code of the rules must be interpreted
as a way to guarantee efficiency/justice etc. "we didn't include it, but… interpret
the rules flexibly." <-- always remind ourselves of Rule 1
● These fall under R11 if you include something frivolous in a complaint so you
can get sanctioned

Lovey H v. Eggleston (p. 201)

● Determining Class Cert & PI
● Order must define the class & class claims and appoint class council
● American rule v. English Rule over fees
o English Rule: losing party must pay the attorney expenses of the prevailing party
o American rule: each litigant pays their attorney costs, except court may sanction parties
and require among sanctions an award of atty's fees --> at end of semester 42 USC §
1988 (establishes in civil rights cases, court may award reasonable attys fees)
● Injunction
o Commonality - arises from the same questions of law and fact
o Typicality - claims arise from the same course of allegedly unlawful events
o Numerosity - # of class is large enough (41+, the ADL standard)
o Representativeness -> no potential conflicts and they have adequacy of representatives
o AND they have to meet 23(b)(2) for an injunction
● Supplemental Jx of state and local claims: federal courts are adjudicators of limited jx so they
only have authority when explicitly granted, so they have to say that they have the power to do
so… while state courts are courts of general jx
● Subclass: A narrower subset of a class

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 o Can get to judgment on those claims, make some money, and then set some precedent
so the subsequent litigation is relatively easy, another subclass, etc.
● Justification for Narrow Tailoring of a PI: You are forcing a party to comply without their day in
court & must consider this at times
● Sent back to Goldberg v. Kelly in a way with the PI

Lovey v. Eggleston (p. 209)

● Wants to amend the class
● Court asserts its Jx at the beginning again

Private Securities Lit Reform Act (1995)

● Applies to corporations who issue stock
● Fed Courts have exclusive jx over these cases where they're brought under SEC lit statutes
o How does this work with state blue sky laws?
● States are allowed to regulate in these areas as well
● Can be in fed court under supplemental jx if they want to bring an action under
other SEC statutes
● Applies additional requirements for class actions that fall within this area
● You must meet all requirements of R23 and these standards
o Early Notice Req --> within 20 days must posted
o Appoint a lead P who must be the most capable of adequately repping interests of class
but ALSO presumption (rebuttable) that most adequate P is the one with the largest
financial interest
● This person selects counsel
o A P may be a lead P in no more than 5 SEC class actions within a 3 year period
o A share to any representative party must be equal to any settlement per share to the
portion of the final judgment awarded to all other members of the class
● Attorneys Fees --> reasonable relationship
● Discovery staid if motion to dismiss filed until it's decided
● A Fed Ct may stay discovery in state court
● Court needs to record specific findings re: rule 11 and MUST issue sanctions if they violate any
part of 11(b)

Settlement

Rule 23 -> Settlement in a class action does not operate like normal settlement
● Judge must hold a fairness hearing and may refuse settlement unless they can hold another
hearing to allow for exclusion
● Consent Decree --> a settlement with blessing of court (BINDING)

Martin v. Wilks
ALL THE ACTIONS
● Firefighters v. City
● Consent Decree from FF v. City
● Unsuccessful Intervention into Consent Decree by OG white FF
● Unsuccessful Separate Action
● Affirmation of dismissal on appeal

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 ● 2nd separate action --> new group of white FF <--THESE INDIVIDUALS GET THEIR DAY IN COURT
b/c of SCOTUS
● Successful intervention by black firefighters on 2d action
● Dismissal of 2nd separate action by white fire fighters by district ct
● Reversal of 2d sep. action by appellate court
● Affirmation of reversal by SCOTUS
What this case boils down to:
● The city has been discriminating and must remedy it based on these measures, which require
preferential hiring/promotion of black FF who were discriminated against by years. Then white
FF say it's discriminatory against *US* and the city is saying, SCOTUS has held that you have to
show intentional discrim & I have no intention to discrim, I have been helping you for so long,
but I have to comply.
● White FF say, yeah, but this discriminates against MEEEEE
● Court: they're not parties to the consent decree, so it's not binding against them; they get their
day in court
o If you want to BIND THEM, you have to JOIN THEM as a party, you can't obligate that
person to INTERVENE
o See footnotes for exemptions on p, 236
● Dissent: Collateral attack of the consent decrees: lack of jx, duress, mistake, but Ps were not
held bound by the consent decree & it just affects the set-up and makes it harder under 14th
Amendment
What does this case say:
● Can't be bound when you're not a party, but the decree can affect you and then you can go to
the court and say the effect is illegal and make your case and have to show intent etc (which you
would then point at the consent decree)
● Don't overcomplicate it (his words)

Case Notes
Class Cert under FRCP 23 & advisory committee notes (p. 198)

Lovely v. Eggleston (p. 201) (SDNY, 2006)

● Certification of subclass and main class under FRCP 23 (b)(2)
● Goes through requirements of FRCP 23(a) in detail

Lovely v. Eggleston (p. 209)(SDNY, 2006)

● Amended complaint

Legal Aid Article (p. 212)

● Summary of current status as of 2009

Private Securities Litigation reform 15 USC §77z-1 (2012) (p.214)

● More restrictive than a traditional class action and the roles of a lead plaintiff are slightly
different --> "most adequate plaintiff"
● Rebuttable presumption language --> most adequate P has largest financial interest in relief
sought.

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FRCP 23(e) - Settlement (p. 217)
● Class Action can only be settled with court approval
● Direct note by court
● If proposal binds class members, ct may only approve it after a hearing and a finding that the
settlement is fair, reasonable, and adequate
● If certified under 23(b)(3) --> ct may refuse to approve a settlement unless it affords a new
opportunity to request exclusion
● Any class member may object to the proposal if it requires ct approval under this section, but
can only be withdrawn once filed with ct approval.

Lovely (p. 219)(2015)

● Stipulation and order of settlement
● FRCP 25(d)(1) --> automatically substitute parties for claims originally brought against a previous
government official
● Procedures for jurisdiction/oversight of the implementation of the changes and what happens if
there's an order for extension of the jurisdiction (p. 230–31)

Lovely (p. 232)

● Judgment approving class action settlement.
● In 2d cir, fairness of settlement requires
o Settlement grants relief to all members of the Class without subjecting them to risks,
complexity, duration, and expense of continuing litigation.
o The reaction of the Class to the Settlement Agreement has been overwhelmingly
favorable as there have been no objections to weigh against approval
o The state of the proceedings, the number of dispositive and discovery motions briefed,
the amount of discovery completed & negotiations to date have enabled the parties to
evaluate the nature and scope of the potential relief to the Class Members;
o The risks associated with establishing liability and entitlement to relief, and maintaining
the action through trial weigh in favor of the Settlement Agreement; and
o The Settlement Agreement is within the reasonable range of recovery given the best
possible outcome, along with the risks associated with litigation, and it provides
substantial benefits to Class members.

Martin v. Wilks (p. 234)(1989)

● A judgment or decree is only binding on the parties to a lawsuit and has no impact on the rights
of a non-party who was not joined, even if the non-party had an opportunity to intervene.
● [The] Federal Rules of Civil Procedure, we think the Rules incorporate the . . . principle [that] a
party seeking a judgment binding on another cannot obligate that person to intervene; he must
be joined. [The] drafters cast Rule 24, governing intervention, in permissive terms.
● Joinder as a party, rather than knowledge of a lawsuit and an opportunity to intervene, is the
method by which potential parties are subjected to the jurisdiction of the court and bound by a
judgment or decree. The parties to a lawsuit presumably know better than anyone else the
nature and scope of relief sought in the action, and at whose expense such relief might be
granted. It makes sense, therefore, to place on them a burden of bringing in additional parties
where such a step is indicated, rather than placing on potential additional parties a duty to
intervene when they acquire knowledge of the lawsuit. The linchpin of the “impermissible

50
 collateral attack” doctrine—the attribution of preclusive effect to a failure to intervene—is
therefore quite inconsistent with Rule 19 and Rule 24.
o Exceptions: We have recognized an exception to the general rule when, in certain
limited circumstances, a person, although not a party, has his interests adequately
represented by someone with the same interests who is a party. See Hansberry v. Lee,
311 U.S. 32, 41-42 (1940) (“class” or “representative” suits); Fed. Rule Civ. Proc. 23
(same). . . . Additionally, where a special remedial scheme exists expressly foreclosing
successive litigation by nonlitigants, as for example in bankruptcy or probate, legal
proceedings may terminate pre-existing rights if the scheme is otherwise consistent
with due process. . . . Neither of these exceptions, however, applies in these cases.

Stevens, J., dissenting

● One of the disadvantages of not being joined or intervening in a suit is that the non-party has no
right to appeal from a judgment, even if, as a practical matter, the judgment seriously harms his
interest. Non-parties may collaterally attack a judgment, but the grounds are limited. Further, a
non-party who fails to intervene despite notice and a fair opportunity to do so may be bound if
the court’s interest in finality in the action is great enough. Here, however, there is no need to
decide the question. The plaintiffs had a full trial in the district court, and the court concluded
that the decree was valid. The judgment of the court of appeals should be vacated.

Matsushita Electric v. Epstein (p. 243) (1996)

● I: Can a federal court withhold full faith and credit form a state court judgment approving a
class-action settlement simply b/c the settlement releases claims within the exclusive jx of the
federal courts?
● H: No. Absent a partial repeal of the Full Faith and Credit Act 28 USC § 1738, by another fed
statute, a federal court must give the judgment the same effect that it would have in the courts
of the state in which it was rendered.
● Full Faith & Credit Act (28 USC § 1738)
o Judicial proceedings of any state shall have the same ful faith and credit in every court
within the US as they have by law or usage in the courts of that state from which they
are taken. This act directs all cts to treat a state ct judgment with the same respect that
it would receive if it were decided in their own cts.
o This is INCLUSIVE of class actions as they are a judicial proceeding under the statute, so
they are presumptively included in this category.
● Where § 1738 is raised as a defense in a subsequent suit, the fact that an allegedly precluded
"claim is within the exclusive jx of the federal cts doesn't make the statute inapplicable."
● INSTEAD § 1738 analysis for determining whether a state ct judgment precludes federal action
o A fed ct. first looks to the law of the rendering State to determine the effect of the
judgment
o If the state law indicates that the particular claim or issue would be barred from
litigation in a ct of that state, then the federal court must next decide whether, as an
exception to 1738, it should refuse to give preclusive effect to the state ct judgment.
● Here: they analyze the federal statute (but note: generally, ct has seldom, if
ever, held that a statute implicitly repealed § 1738, so it has to be EXPLICIT)
● General proposition that even when exclusively federal claims are at stake, there is no universal
right to litigate a federal claim in a federal district ct.

51
Stevens, J., concurring & dissenting
● Thinks appellate ct should determine, in first instance, whether DE cts fully and fairly litigated
the adequacy of class representation.

Ginsberg, J., concurring & dissenting

● Would not have SCOTUS speak the first word on the content of DE preclusion law, but remit that
issue to the lower courts.
● Emphasizes that under § 1738. a state ct judgment is generally not entitled to full faith & credit
unless it satisfies the requirements of the 14th Amendment's DPC, in the class action setting,
adequate representation is among the due process ingredients that must be supplied if the
judgment is to bind the absent class members.

OG Civ Pro – Class Action Cases

Walmart Stores Inc. v. Dukes (2011)
● Issue: What must be shown in a class action under FRCP 23(b)(3) to prove commonality?
● Holding: It requires the P to demonstrate that the class members "have suffered the same
injury." This does not mean merely that they have all suffered a violation of the same provision
of law. Their claims must depend upon a common contention that must be of such a nature
that it is capable of classwide resolution--which means that determination of its truth or falsity
will resolve an issue that is central to the validity of each one of the claims in one stroke.
● Issue: What are ways in which the conceptual gap between an individual's claim and the
existence of a class of persons who suffered the same injury?
● Holding: There are two ways this can be shown. First, if the employer "used a biased testing
procedure to evaluate applicants and incumbent employees." Second, significant prove that an
employer operated under a general policy of discrimination conceivably could justify a class of
both applicants and employees if the discrimination manifested itself in hiring and promotion
practices in the same general fashion, such as though entirely subjective decision-making
process."
● Issue: Can claims for monetary relief be certified under FRCP 23(b)(2)?
● Holding: No. Declaratory relief is separate from monetary relief.

Chicago Teachers Union v. Chicago BOE (handout)

● Issue: Can a latter subjective step invalidate the initial objective criteria that served as the basis
of commonality for a class action?
● Holding: No. If the Ps allege that objective criteria caused a harm that affected the entire class,
that is the glue that binds those claims together without regard to the later, subjective step.
● Issue: Post Walmart, is certification of a class still possible when the acts complained of are
based upon subjective, discretionary factors made by multiple decision makers?
● Holding: Yes. Where subjective discretion is involved, Walmart directs courts to examine
whether all managers exercise discretion in a common way with some common direction. Thus,
to satisfy commonality, a P must demonstrate that the exercise of discretion is tied to a specific
practice, and that subjective practice at issue affected the class in a uniform manner.
o In short, subjective discretionary decisions can be the source of a common claim if they
are, for example, the outcome of employment practices or policies controlled by higher-
level directors, if all decision-makers exercise discretion in a common way because of a
company policy or practice, or if all decision makers act together as one unit.

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 ● Issue: Can a class be certified under FRCP 23(b)(2) if the Ps might require individualized relief in
addition to equitable relief for the class as a whole?
● Holding: Yes. It is routine in class actions to have a final phase in which individualized proof
must be submitted. It may be necessary to hold separate hearings to determine to what relief
each class member or sub-class member is entitled (both in terms of reinstatement and money
damages), but the question as to whether the reconstitution process discriminates against a
class, either by impact or treatment, can be adjudicated class-wide. The question is simply
whether a proposed Rule 23(b)(2) class is asking for the same injunction and declaratory relief
for all class members.
● Issue: What must be shown to indicate that the common issues predominate over any questions
affecting individual members?
● Holding: The predominance requirement is meant to test whether proposed classes are
sufficiently cohesive to warrant adjudication by representation, but it scarcely demands
commonality to all questions. In particular, when adjudication of questions of liability common
to the class will achieve economies of time and expense, the predominance standard is
generally satisfied even if damages are not provable in the aggregate.
o What the rule requires is that common questions predominate over any questions
affecting only individual members, not that all claims are the same.

Class 6 – Class Actions cont’d/Subject Matter

Jx/Venue/Removal
Class Notes
ADL Notes re: Joinder
Cross/Counter Claims
● Compulsory Counterclaims - must arise from the same transaction/occurrence
● Permissive Counterclaims: May state any case against the other party that is not compulsory
● When arguing for a counter or crossclaim, focus on efficiency
● Crossclaims are always permissive and never compulsory
● Counterclaims are a parallel claim where the defendant is now the plaintiff alleging stuff against
the original plaintiff (who is now the defendant).
● Cross claim is like when you and your siblings are blamed for something and you attack the
sibling that actually did the thing. e.g. D got into a car crash with P, however, D got into crash
because its breaks failed and so D sues the break company/installer for being at fault in the first
place.

Impleader (Rule 14)

● Can only be brought under very specific circumstances
● Narrow rule
● Can only add a party if
o New party is liable to defendant for plaintiff's loss
● if new party is at fault, they need to reimburse original defendant for what they
have to pay the plaintiff (done in insurance a lot)
● No way to force a plaintiff to add the correct defendant, they can still sue the wrong one as they
are the master of their own lawsuit
o only exception is what is required under FRCP 19

53
Joinder of required parties (Rule 19, but also Rule 24 - Intervention)
● 2 doctrines
● All of which are claims made by the Defendant to add a party the plaintiff didn't want to add
● Plaintiff decides who to sue, where to sue etc. because they are the master of their own claims
Notes:
-A sues B and B decides to also sue A: Must be brought in this case if directly related, could be brought in
this case if unrelated (up to their discretion)
-A may sue B +C (Joinder), B and C can sue each other (Crossclaim), B + C can bring D into the suit
(Impleader), D can then sue A, B, and/or C (still part of same lawsuit)
-Must have some sort of consistency when trying to make a claim for joinder
-Court may decide to separate parties if they cannot form a convenient lawsuit
-Counter-claim can be related or unrelated to original claim (not the same for cross-claims)
-Failure to bring a cross-claim in original lawsuit not barred from a later lawsuit
-Useful test for “same transaction or occurrence” (Federal Practice and Procedure § 1410)
+Are the issues of fact and law raised by the claim and counterclaim largely the same?
+Would res judicata bar a subsequent suit on D’s claim absent the compulsory counterclaim rule?
+Will substantially the same evidence support or refute P’s claim as well as D’s counterclaim?
+Is there any logical relation between the claim and the counterclaim?

-Useful test for Impleader:

+Can be used only in order to bring in one who is not already a party
+D has to have a legal claim against third party (can’t just be “it’s their fault”)
+D needs to not only have a theory of liability against third party, but it has to be “for all or part
of” P’s claim against D
- Permissive v. Compulsory Counterclaims
+Permissive - need independent jurisdictional basis
• Must be a federal question on its own
• Or diverse / amount in controversy
+Compulsory - falls within the ancillary jurisdiction of the federal courts
• Even if there is no independent basis for supplemental jurisdiction, it is still permissible
to hear in federal court because it is part of the same suit.
Barbri – Joinder/Subject Matter Jx
Remember re: Joinder, you’re actually analyzing this under two points:
● What is the joinder rule?
● Does this case, after joinder, still have subject matter Jx?
● If no, check for Supplemental Jx.

FRCP 20(a) – Proper Parties

● Who may be joined
● Available to the P, and allows them to ad parties (but P does not have to do so)
● Must all be related to the same transaction/occurrence
● At least 1 common question

FRCP 19 – Necessary/Indispensable Parties

Occurs when a case has been filed and is pending. Here, a P typically left a party off.

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Here, argue all 3 reasons to determine if non-party is necessary under 19(a)(1)
● 19(a)(1)(a): Without missing party, court cant accord complete relief
● Efficiency argument
● 19(a)(1)(b)(1): Missing pty’s interest may be harmed if not joined
● 19(a)(1)(b)(2): Missing party’s interest may subject D to multiple inconsistent obligations

THEN ask: Is joinder feasible?

● Is there personal jx over missing party?
● Does bringing in missing party still allow for SJx (meaning: doesn’t screw up diversity)?

IF there’s PJx and SJx => Joinder is proper

If there’s not both of these => joinder is infeasible and then the court has to decide by weighing
19(b) factors, whether:
● Proceed without missing party; OR
● Dismiss case

** If case is dismissed, party becomes INDISPENSABLE and dismissed under FRCP 12(b)(7).

FRCP 18(a) – P can assert any claim they have, even if not related, against D to get to diversity
threshold of $75,001.

Claimed Joinder by D
● Counterclaim (FRCP 13a & b): Claim against opposing party (so D files claim against P
after P sues D). This must be filed with the ANSWER
● FRCP 13(a)(1): Compulsory counter claim, arises from transaction/occurrence as
P claim. Must assert in answer or it is WAIVED.
● Permissive Counter claim -> may sue in response but does nto arise from same
tx/occurrence
● REMEMBER: SJx.
● Since D raises this, also check Supp Jx if no SJx.
● Crossclaim (FRCP 13(b)): Claim against a co-party. Must arise from same tx/occurrence
but is NOT compulsory.

Oquendo
We started with wisdom and with its beginning.
● "The fear of the lord (master) is the beginning of wisdom." - The Bible
o Because the slave is forced to put aside his/her own interest, and advance those of
someone else, he/she is taking the first step toward freedom because freedom is
collective. So, feeling part of a community & putting your interests aside for someone
else (which you are a part of) then you are learning.
o Freedom is collective and includes the master.
o There is a connection to what we've said b/c what we're discussing is collective
freedom/collective determination.

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 ● From individual --> collective litigation is like individual --> collective freedom

Matsushita
● Taking over the company, etc
● He recommends looking at the procedure piece to figure out what's going on.
● Note all the things that are highlighted re: tests, because homeskillet did not explain this well.
● Claims settled can have an effect on subsequent litigation
● RBG concurrence --> can attack this as collateral attack on inadequate representative

Lovey (219)
● What a settlement looks like
● Parties are negotiating and trying to anticipate what will happen in the future if problems crop
up and if there is further litigation
● Court retains jx for 48 months etc (230–31)
o Res judicata --> can say that you lacked jx etc and other things to get out of it,

Class Actions --> manageability is a big part of it as well

23(b)(1)(B) --> limited fund for a large group of parties, because if you had everyone sue individually,
you'd have a race to the court

In class actions, flexibility shouldn't play a role as they are extraordinary and extraordinarily problematic
b/c you're adjudicating claims of non-litigants and those who do not know that they are parties.
● Must take parts of this rule LITERALLY
● Advisory committee notes are presumptively necessary
● Breyer (dissent) - you need to be flexible in mass torts (p. 273)
● Class Cert --> statutory and logically antecedent to Article III concerns
● A looser interpretation of 23(b)(1)(B) --> threatens a whole lot of things (Ortiz v. Fibreboard)

Owen
● Diversity is Diversity is Diversity and it's complete diversity

Erie - SCOTUS essentially does a reversion of the system (before Erie, state procedural law & federal
common law), but now it's state substantive law and federal procedural law

Case Notes
Amchem v. Windsor (p. 250) (1997)
● A court considering certification of a class for the sole purpose of settlement does not need to
determine whether certification would create significant management problems at the trial
stage, but must still ensure that all the formal certification requirements of Federal Rule of Civil
Procedure 23 are met.
● FRCP 23(e) protects unnamed class members from unjust or unfair settlements affecting their
rights when the representatives become fainthearted before the action is adjudicated or are
able to secure satisfaction of their individual claims via compromise.
● Courts are reluctant to certify settlement classes when they involve mass torts, because there
are high individual stakes and disparities among class members at issue.

56
Breyer, J., concurring/dissenting
● The majority’s basic holding is that a class being certified solely for settlement is partially
relevant to determining whether certification is appropriate. However, he'd certify the
settlement here.
o the majority’s approach would ultimately lead to a different conclusion on the five
following grounds. First, the need for settlement in this mass tort case, with hundreds of
thousands of lawsuits, is greater than the majority’s opinion suggests. Second, more
weight should be given to settlement-related issues for purposes of determining
whether common issues predominate. Third, on the issue of adequacy of
representation, it is inappropriate to second-guess the district court on that matter.
Fourth, the majority’s opinion would seem to suggest that the settlement was unfair.
Finally, in the absence of further review by the court of appeals, the majority is wrong to
suggest that the requirement of giving notice to the class members, when taken by itself
as the only formal requirement present, is inadequate for purposes of FRCP 23.

Ortiz v. Fibreboard (p. 261) (1999)

● In order to certify a settlement under FRCP 23(b)(1), parties for contested certification on this
rationale must show that the fund is limited by more than the agreement of the parties, and has
been allocated to claimants belonging within the class by a process addressing any conflicting
interests of class members.
● UNLIKE in a normal case, the issue of class certification is determined PRIOR to. The issues of
standing, mindful that the rule's requirements of class cert must be interpreted in keeping with
Article III standing.
● Under FRCP 23(b)(1) class actions, unlike (b)(3), notice is not required so that they can exclude
themselves.
● Mandatory class action can't be used to aggregate unliquidated tort claims on a limited fund
rationale.
● Rules Enabling Act requires that no rule of procedure can abridge, enlarge or modify any
substantive right.
● A limited-fund class action must meet the following criteria: (1) the maximum total of funds
available must be inadequate to pay the maximum total of aggregated liquidated damages, (2)
all of the available funds must be devoted to paying claims, and (3) the class must include all
possible claimants sharing a common theory of recovery. A limited-fund class action creates a
class from which individual members cannot opt-out and binds absent members of the class,
creating tension between the equitable distribution of available funds and the rights of
individual tort victims to jury trials. Therefore, a court should be cautious in approving this type
of action.
Rehnquist, J., concurring
● If the FRCP didn't exist, he would agree with the dissent and the decision of the district court,
but this isn't the case. So, since the FRCP exist, the majority states the correct circumstances of
existing law, and he joins. But, basically, calls for reform.
Breyer, J., dissenting
● Would rather uphold the district court's opinion and the settlement under FRCP 23(b)(1)
because the volume of asbestos litigation means that individual litigation of asbestos claims is
not a viable option. The district court has much more experience with this matter than do the
appellate courts, and its determination that the settlement funds in this matter are inadequate
should not be questioned.

57
Subject Matter Jx statute (p. 275)
● 28 U.S.C. § 1332
● See my beloved charts

FRCP 14(a) (p. 277)

FRCP 14(a)-(b): Third-Party Practice (Impleader)
● Rule 8(a) pleading requirements explicitly apply to this rule as does FRCP 8(c) and 12(b)
● Think of this as "if I owe them money, a 3rd party will owe ME money"

Owen Equipment v. Kroger (p. 277) (1978)

● Issue: Does the Gibbs test allow for federal courts to hear and decide a state law claim arising
between citizens of the same state?
● Holding: No. Even if federal court has Constitutional power under Art. III § 2, it is still limited by
acts of Congress (i.e. statutes). If a state claim satisfies Gibbs, the court must then examine the
posture in which the non-fed claim is asserted and of the specific statute that confers Jx over the
federal claim to determine whether Congress has negated Jx over non-federal claim.
o In this case, 28 USC § 1332(a)(1) is the statute and that only permits Fed. Jx in complete
diversity cases, so this would not be permitted.
o Complete diversity was destroyed just as surely as if she had sued Owen initially. In
either situation, the plain language of the statute, the matter in controversy could not
be between citizens of different states.
● It is a fundamental precept that federal cts are courts of limited jx. The limits cannot be
disregarded or evaded.
● It is true that the exercise of ancillary jx over nonfederal claims has often been upheld in
situations involving impleader, cross-claims, or counterclaims. But in determining whether jx
over a nonfederal claim exists, the context in which the nonfederal claim is asserted is critical.
● Neither the convenience of litigants nor considerations of judicial economy can suffice to justify
extension of the doctrine of ancillary jx to a plaintiff's cause of action against a citizen of the
same State in a diversity case. Congress has established the basic rule that diversity jx exists
under 28 USC § 1332 only when there is complete diversity.

White, J., dissenting

● Would hold that diversity only is between the P and the parties he brings into the suit. He would
also hold that in a diversity case, the district ct has the power, both constitutional and statutory,
to entertain all claims among the parties arising from the same nucleus of operative fact.

Supplemental Jx statute (p. 283)

Erie RR v. Tompkins (p. 283) (1938)

● State law is applied in federal courts, except in matters governed by the Constitution or by acts
of congress. And whether the law of the state shall be declared by its legislature in a statute or
by its highest court is not a matter of federal concern. There is no federal general common law.
Congress has no power to declare substantive rules of common law applicable in a state
whether they be local in their nature or general be they commercial law or a part of the law of
torts. And no clause in the Constitution purports to confer such a power upon the federal courts.

58
Butler, J., dissenting
● The only questions raised by Erie Railroad Co. were whether its duty should have been defined
by Pennsylvania common law and whether Tompkins was contributorily negligent. The
constitutional questions decided by the majority were not raised or argued, nor were they
necessary to dispose of the case.
Reed, J., concurring
● The Swift decision was merely erroneous, not unconstitutional. It is unlikely that without federal
statutory direction, federal courts would be required to follow state decisions. It is also doubtful
that Congress does not possess the authority to declare what rules of substantive law govern
federal courts. The majority’s reasoning purports to entirely re-interpret the Constitution.

Hanna v. Plumer (p. 287) (1965)

● Substantive state law applies in federal court, but not state procedural law when adjudicating
cases based upon diversity.
● Rules Enabling Act: federal courts are to apply state substantive law and federal procedural law.
However, as subsequent cases sharpened the distinction between substance and procedure, the
line case following Erie diverged markedly from the line construing the Enabling Act.
● Erie has never been invoked to void a federal rule and cannot be used to displace the FRCP
because a state court has a different procedural rule.
Harlan, J., concurring
● Erie reflects a deep respect for state laws, and does not just deter forum shopping. While the
outcome is correct, the majority’s test might doom some important state statutes to save
irrelevant federal procedural rules.

Sosa v. Alvarez-Manchain (p. 291) (2004)

● Art III, § 2 gave SCOTUS original jx over al cases affecting Ambassadors, other public ministers &
Consuls. The Judiciary Act of 1789 creates original jx in SCOTUS over suits brough by diplomats,
created alienage jx, and included the alien torts act. As such, the only causes of action under this
law are the modest number of international law violations that had potential for personal
liability in 1789. It DOES NOT create a new, broad, cause of action.
● Fed Courts should not recognize private claims under federal common law for violation of any
international law norm with less definite content and acceptance among civilized nations than
the historical paradigms of the 18th century. And the determination of whether a norm is
sufficiently definite to support a cause of action should involve an element of judgment about
the practical consequences of making that law available to litigants in fed court.
● The mere fact that the US signed the declaration of human rights does not give a private right to
sue, because of its own force the declaration does not impose obligations as a matter of
international law.
● (1) A claim under the Alien Tort Statute must be based on a universally recognized, specifically
defined rule of international law that is capable of imposing obligations on international parties.
(2) A plaintiff may not sue the United States under the Federal Tort Claims Act for tortious
conduct allegedly planned and directed in the United States but carried out in a foreign country.
Scalia, J., concurring
● After Erie, federal common law is "made" and not discovered, so federal courts must possess
some federal-common-lawmaking authority before undertaking to craft it.
o Law of nations is so far outside of this scope that it'd be ridiculous to use this as a basis
of federal common law.

59
 ● American Law doesn't recognize a category of activity that other nations disapprove of, and it's
up to Congress to decide if they want to recognize this cause of action.
Breyer, J., concurring
● Emphasizes that since enforcement of an international norm by one nation's courts implies that
other nations' courts may do the same, he would ask whether the exercise of jx under the ATS is
consistent with notions of comity that lead each nation to respect the sovereign rights of other
nations by limiting the reach of its laws and their enforcement.

Statutes - Subject Matter Jx, Supplemental Jx, Removal

Subject Matter Jx Statutes

● 28 USC § 1331 - Federal Question
o Federal Cts have original Jx of all civil actions arising under the Constitution, laws, or
treaties of the U.S.
● "well pleaded complaint" rule: The P's statement of his own claim determines
whether the suit arises under federal law. The P's complaint contains the
allegations essential to stating the P's claim without any surplusage such as
anticipated defenses.
● 28 USC § 1332 - Diversity of Citizenship; Amount in Controversy; Costs
o Total Diversity - No overlap btwn citizens on either side of the v. meaning CT + NY v. NY
is not ok. 1332(a)(1)
● Citizen: arrived at new location with intent to remain there indefinitely
▪ However 1332(a)(1) is limited to citizens of different states, so that
prong can't be used for citizens of foreign states. If this comes up, go to
p. 891
● Must find Jx under 1332(a)(2) or 1332(a)(3) in this circumstance.
▪ 1332 also doesn't provide Jx over citizens without a domicile - p. 892
▪ DOMICILE IS ESTABLISHED AT THE TIME OF FILING. IF THEY MOVE
AFTER IT DOESN'T MATTER.
o Amount in controversy must EXCEED $75,000 1332(a)
● 1 P can add multiple claims to get to the $75k+ threshold
▪ Jack sues Sally for Personal Injury, Property Damage & Defamation to
reach $75,001 --- this is ok.
● HOWEVER, multiple Ps each with claims under $75k+ can't both sue D in one
lawsuit to get to $75k+ threshold
▪ Jack ($50k claim) + Jill ($50k claim) try to sue Sally in fed court --> does
not work.
● BUT a claimant with an amount under $75k can be added so long as anchor
claimant with an amount of $75k+ is suing D.
▪ Jack ($75,0001) + Jill ($50k claim) can sue Sally in fed court
● Note: 1332(b) allows for court to impose fines if amount winds up being less
than $75k+
o For Corporations 1332(c): citizenship can is in its place of incorporation and its "nerve
center"/principle place of business (where decisions are made/CEO is
located/headquarters/"center of overall direction, control, and coordination")
● So, corporation could be in multiple states
● HQ becomes citizen of new state the second they move

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 ● Less arguable than all purpose PJx for corporations
▪ DO NOT say "essentially at home". That is PJx
Supplemental Jx Statute
● 28 USC § 1367 - Supplemental Jurisdiction
o 28 USC § 1367 - Supplemental Jx
o 1367(a) – applies to all actions: federal question & diversity and gives a broad
grant of jurisdiction
● If a case is in Federal Court and there's something "related enough", you
can add it to the claim. The big question is Gibbs' "common nucleus of
operative fact"
● Gibbs - Same Nucleus of Operative Fact test
▪ Kinda similar to the same transaction or occurrence test
▪ Is this the same event that spawned multiple lawsuits?
o 1367(b) – applies only to diversity and limits jurisdiction
● Is it in Federal Court solely on diversity grounds? If so, have to get into
the complexity under this section. Is someone trying to add a claim by P
under FRCP 14, 19, 20, or 24?
▪ This is not allowed under 1367(b) if it violates complete
diversity.
● In diversity actions, the district courts shall not have supplemental
jurisdiction over claims by plaintiffs 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 plaintiffs under Rule 19 of
such rules, or seeking to intervene as plaintiffs under Rule 24 of such
rules, when exercising supplemental jurisdiction over such claims would
be inconsistent with the jurisdictional requirements of section 1332.
▪ Note: claims by D under these rules are ok
o 1367(c) – grants court discretion to deny jurisdiction even when (a) and/or (b) are met
o Ways to deny Jx
● (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.

Removal Statutes:
● 28 USC § 1441 - District Courts; Removal of Cases from State Courts
● 28 USC § 1441(b)(1) - can remove federal Q to fed court without worrying about diversity
● 28 USC § 1441(b)(2) - D cannot remove to federal court if they're sued in their home state
● Even if one D is a citizen of the state where they're being sued, they cannot remove
● If even 1 D does not agree to remove, then no one can remove.
● 28 USC § 1441(c) - determines when a claim with both a removable and a non-removable
claim can be removed.
● If it has a Federal claim and a state law claim that doesn't fall within original or supp
jx -- state remands all state law claims to state court and hears the federal claim by

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 itself and only Ds who are subject to the federal claim are required to consent to
removal.
● 28 USC § 1443 - Civil Rights Cases
● 28 USC § 1445 - Nonremovable Actions
● 28 USC § 1446 - Procedure for Removal of Civil Actions
● 28 USC § 1446(a) - D files a notice of removal in federal district embracing the place where
the state action is pending.
● 28 USC § 1446(b) - timing. D has 30 days from service of complaint to remove, most of the
time.
● 28 USC § 1446(b)(2)(A) - if multiple Ds, all Ds must consent to removal
● 28 USC § 1446(c)(1) -
● 28 USC § 1447 - Procedure After Removal, Generally

Constitution (Art. III § 2)

● Article III § 2
o The judicial power shall extend to all cases, in law and equity, arising under this
Constitution, the laws of the United States, and treaties made, or which shall be made,
under their authority;--to all cases affecting ambassadors, other public ministers and
consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which
the United States shall be a party;--to controversies between two or more states;--
between a state and citizens of another state;--between citizens of different states;--
between citizens of the same state claiming lands under grants of different states, and
between a state, or the citizens thereof, and foreign states, citizens or subjects.

Federal Rules re: Impleader, Counterclaim/Crossclaim/Joinder

FRCP 13: Counterclaim and Crossclaim
● pay close attention to may and must under this rule
FRCP 14(a)-(b): Third-Party Practice (Impleader) **impt for SJx**
● Rule 8(a) pleading requirements explicitly apply to this rule as does FRCP 8(c) and 12(b)
● Think of this as "if I owe them money, a 3rd party will owe ME money"
FRCP 18: Joinder of Claims
● governs when you can join claims
● can join as many claims as it has against an opposing party
● pay attention to may and shall
FRCP 19: Required Joinder of Parties **important for SJx**
● If Plaintiff cannot collect full relief from named parties, typically they need to be joined.
HOWEVER, inability to collect on a judgment typically will not satisfy "complete relief"
under FRCP 19(a)(1)(A)
● 19(a)(1)(B)(i): confers necessary party status if the interests of the absentee would be
prejudiced from the adverse effect of the judgment.
o Challenge. Here is to determine which interests are protected & what quantum
of impairment is required.
● 19(b): think of this as a subset of 19(a)
● NOTE: Rule 19 is concerned with inconsistent obligations, not inconsistent adjudications
(Daynard)

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 ● NOTE: if a party required to be joined under Rule 19 is NOT joined, it can throw out the
lawsuit under FRCP 12(b)(7)
FRCP 20: Permissive Joinder of Parties
● while it is very easy to join claims, it is very difficult to join parties
● question of law/fact in common cannot be general (e.g. two tort cases)
FRCP 21: Misjoinder and Nonjoinder of Parties (Court can kick out any parties it wants)
FRCP 22: Interpleader
● All forced into one lawsuit to sort out $$ (won't be tested on it) p. 412
FRCP 24: Interventions
● Think of this as people knocking on door to get into suit
● Timeliness is a THRESHOLD question as to whether this can be allowed (NIPSCO)
● All 4 prongs under FRCP 24(a)(2) must be met:
o Timely application
o An interest relating to the property or transaction which is the subject of the
action
o That the disposition of the action may, as a practical matter, impair or impede his
ability to protect that interest; AND
o That the interest is not adequately represented by the existing parties.

Subject Matter Jx – Chart

1. Is the case in state or federal court?
a. If State - Subject Matter Jx does NOT apply
b. If Federal -- continue.
2. Does the case arise out of federal law?
a. Yes
i. Is it a well pleaded complaint? The P's statement of his own claim
determines whether the suit arises under federal law. The P's complaint
contains the allegations essential to stating the P's claim without any
surplusage such as anticipated defenses.
1. If YES --> Congratulations! You have Subject Matter Jx
2. If No --> No Subject Matter Jx
b. No
i. Move to Diversity (#3)
3. Is this a dispute between citizens/corporations of different States?
a. No
i. Is at least one party a U.S. Citizen/Corporation suing a foreign
citizen/corporation?
1. Yes
a. Did you make sure that one of the parties wasn't
actually a permanent resident?
i. Actually a foreigner --> cite 28 USC § 1332(a)(2)
and move to Amount in Controversy
ii. Whoops, actually it's a permanent resident -->
cite 28 USC § 1332(a)(2), say why it doesn't
establish diversity, per that rule, and then do

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 diversity analysis with permanent resident's US
domicile as their home base.
2. No
a. Are the parties citizens of the same state?
i. Yes --> No SM Jx, cite 1332(a)(1)
b. Are the parties in dispute both foreign citizens?
i. Yes --> No SM Jx, state Article III does not
provide a basis for foreigners to sue one
another in federal court
b. Yes
i. Is there complete diversity of parties (different states on each side of
the v.)?
1. Disputes solely involving people
a. Ps and Ds are citizens who are domiciled in different
states (present in that state and intended to remain
indefinitely). Note: CT + CT v. NY is ok -- can have
multiple people from same state so long as they're all
on one side of the lawsuit.
i. Yes --> Continue
ii. No --> No SM Jx
1. Disputes involving corporations (note: must satisfy A&B)
a. Corporation is incorporated in different state from
parties on other side of lawsuit [§ 1332(c)(1)]
i. No --> No SM Jx
ii. Yes --> Continue
b. Corporation's "nerve center" is in different state from
parties on other side of lawsuit. (note -- becomes a
citizen of new state when they move HQ there)
i. No --> No SM Jx
ii. Yes --> Continue
ii. Does the amount in controversy exceed $75,000? [§1332(b)]
1. No
a. Can one P add multiple claims to their suit to get to the
$75k+ threshold? (doesn't work for multiple Ps' claims.
Must be like this: Jack sues Sally for Personal Injury,
Property Damage & Defamation to reach $75,001)
i. Yes --> Congratulations! You have Subject
Matter Jx.
ii. No --> no SM Jx
2. Yes --> Congratulations! You HAVE SM Jx

Supplemental Jx - Chart
1. Do you have an anchor claim that's valid under SJx (either diversity or federal q)?
a. No --> why are you even here?
b. Yes --> continue
2. Apply 1367(a) analysis:
a. Apply Gibbs test re: common nucleus of operative fact

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 1. Relationship btwn claims must derive from a common nucleus of
operative fact. If, considered without regard to their fed/state
character a P's claims are such that they'd ordinarily be expected to try
them in one judicial proceeding, then assuming fed issue is substantial,
the fed. Court can hear it all. (things you can argue, length of time btwn
events, evidence, what's different between the two)
1. Yes -->> Continue
2. No -->> No SJx
3. Is SM Jx based upon a question of Federal Law?
a. Yes --> Sup Jx is likely appropriate, move to #5. Skip Diversity under 1367(b)
b. No -- say that since this is a case where jurisdiction is based upon diversity, you
will move to 1367(b) analysis
4. Is SM Jx based upon a question of Diversity?
a. 1367(b) analysis:
1. Is state law claim being added by a P
1. Yes
a. Does the added claim violate diversity?
i. Yes --> Not permitted
ii. No --> likely permitted continue to Part (c)
analysis
2. No
a. Likely permitted, Mention that this is a party being
joined by a D so this is permitted even if it violates
diversity and move on to Part (c)
5. Can the court exercise discretion to not accept the supplemental claim (analyze all 4 on
exam)
a. 1367(c):
1. (1) the claim raises a novel or complex issue of State law,
2. (2) the claim substantially predominates over the claim or claims over
which the district court has original jurisdiction,
1. So if you have fed q, you can hear that and exercise discretion
to deny all the state claims if it's removed to federal court
3. (3) the district court has dismissed all claims over which it has original
jurisdiction, or
4. (4) in exceptional circumstances, there are other compelling reasons for
declining jurisdiction.

ADL Notes re: SJX & Supp Jx

General Things to Know re: Subject Matter Jx
● Subject Matter Jx is a favored motion to dismiss that can be brought at any time, even after the
case is heard. THIS DOES NOT GET WAIVED.
● Federal courts are courts of LIMITED Jx
● State courts are courts of general Jx
o If you can't sue in federal court, you can still sue in state court
● The default is always concurrent Jx unless otherwise provided by statute that it can only be
heard in Federal/State court.

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 o By statute, fed cts have exclusive Jx over cases where (1) The United States is a party; (2)
patents; (3) trademarks; and (4) bankruptcy.

Federal Question SJx:

● When does a case "arise under" federal law?
o When it meets the well-pleaded complaint rule
● Federal statutes = federal law, so disputes of these are appropriate for federal court
● State statutes = state law, so these disputes do not satisfy federal question on their face, must
establish SM Jx through another method (Diversity).

Diversity SJx
● Must have complete diversity. No overlap between citizens on either side of the v.
o CT + CT v. NY = ok
o CT + CT v. NY + CT = not ok
o MAP THIS OUT ON EXAM.
● People are citizens of where they are domiciled
o Determined by last place a person was present and intended to remain indefinitely and
doesn't change until they are in a new place and show that they intend to remain there.
Simply moving is not enough.
● Corporations are deemed citizens of both state of incorporation & principle place of business (its
"nerve center")
● Domicile is established at the time of filing

Supplemental Jx
● Supplemental Jx is an add on to SM Jx. In order to have an add-on, you must have a core to
begin with, otherwise no Sup Jx.
o You need ice cream (SM Jx) before you can add the sprinkles (Sup Jx).
● Can add parties with claims under $75k threshold so long as there is an anchor P with a claim of
at least $75,000.01.
● If you are confused re: Supplemental Jx, reference Kroger & Gibbs to see if fact pattern aligns
with this.
● In Exam: Go through the core of the lawsuit first and then address Supplemental Jx

Types of Supplemental Jx
● 1367(a) - generally authorizes the district court to exercise jurisdiction over a supplemental
claim whenever it forms part of the same constitutional case or controversy as the claim or
claims that provide the basis of the district court's original jurisdiction.
● 1367(b) - prohibits a district court in a case over which it has jurisdiction founded solely on the
general diversity provision, 28 USC § 1332, from exercising supplemental jurisdiction in specified
circumstances. In diversity-only actions, the district courts may not hear P's supplemental
claims when exercising supplemental Jx would encourage Ps to evade the jurisdictional
requirements of 28 USC § 1332 by the simple expedient naming initially only those Ds whose
joinder satisfies the diversity requirements and then adding claims not within original federal Jx
against other Ds who have intervened or been joined on a supplemental basis. FOR Ds this does
not apply.

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 ● 1367(c) - Codifies the factors that the SP Ct has recognized as providing legitimate bases upon
which a district court may decline Jx over a Sup Jx claim, even though it is empowered to hear it
by law. In exam -- argue why these may/may not be appropriate if needed
● 1367(d) - provides a period of tolling of statute of limitations for any Sup Jx claim that is
dismissed under this section and for any other claims in the same action voluntarily dismissed at
the same time or after the supplemental claim is dismissed.

● Note: your mortal enemy, Joinder, will probably show up here. It's fine, this time, Joinder is
going down.

Supplemental Jx (Older Terms/Chart)

Diversity Federal Question
Ancillary Claim - when attached to diversity Jx Pendant Claim - if the core of the lawsuit is a
federal question, you can add whatever you
want, including state claims
Diverse Ancillary Pty - ok Pendant Party - does not matter if people are
from the same state if it's a Q of federal law
Non-Diverse Ancillary Party - as a P, you cannot
add a party from the same state as a D, because it
breaks diversity, or have someone else try to join
as a P. It's DIFFERENT & permitted if D adds via
joinder under 1367(b)

Removal
● Removal can be fun, mentioned a case in class where there was one federal claim/question
tacked onto a state case, D moved to federal court and argued that the other state claims
predominated and so the court didn't exercise Sup Jx over those, and dismissed those back to
federal court.
● Removal, unlike most things in Civ Pro is in the power of the Defendant (Jx is in power of P)
o Change of venue is also in D's power
o This is the power of the D to forum shop
● If a D is being sued in their home state, the D can't remove
o Meaning: if ANY D is being sued in their home state, no removal
● If multiparty Ds, all Ds must consent to removal
● If circumstances change within 12 months --> 30 days to remove, if case became removable.
After 12 months --> no removal.
o For more detail, look at 28 USC § 1446(c)(1)
● If the case is where SM Jx is based on Federal Question, can be removed under 1441(c)(1)(a)
● On Exam: walk through why you can remove, even if it's easy/obvious

Removal (Trickery/Good Lawyering)

● Snap removal (defeating the forum defendant rule) - 28 USC § 1441(b)(2) only applies to Ds who
have been properly joined and served. SO if Ds have $$ to monitor state court dockets, they

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 remove to federal court before they have been served and fall outside of the scope of the forum
defendant rule.
o Only squarely permitted by 2nd and 3rd circuits, but other circuits are split
● NOTE: CT/NY/VT = Second Circuit; PA/NJ/DE = 3rd Circuit
● A case that pursues only a state-law claim (against a non-diverse party) is typically not
removable.
o BUT if the claim is completely preempted by federal law, it can be removable.
● This only exists where there is no such thing as a. state law claim Beneficial
National Bank v. Anderson (p. 923)
▪ Ask: whether Congress intended a federal statute to provide "the
exclusive cause of action for the claim asserted and also set forth
procedures and remedies governing that cause of action." If yes, the
cause of action arises under federal law and is therefore removable.

Removal – Things to Know

● Can remove if it could have been brought in fed court
● Cannot remove if any D is a citizen of the forum IF it's a diversity case (federal is ok)
● Must remove within 30 days of service of process
● All Ds who have been served with process must join in removal
o If named, but not served, don't need their consent to remove
o 30 days starts over with each newly served D
● Remove only into the federal district court that geographically embraces the state in which the
case was filed. (so can't remove to another state's district court).

More Detailed Notes re: Removal

● Ps have the initial choice of federal or state court in federal question and diversity cases
● If P chooses state court, D can usually remove to federal court. The P can NEVER
remove.
o NOTE: 28 USC § 1441(b)(2) - forum defendant rule. If D is sued in their home
state, they cannot remove to federal court.
o If D wants to remove from fed court, they file a notice of removal (not a motion)
under 28 USC § 1446(a)
o If removal is improper (if fed court doesn't have Jx, P then files a motion to
remand back to state court under 28 USC § 1447.
● Many of these disputes are about questions of federal law/amount in
controversy
● Timing is required for removal
● 28 USC § 1446(b) - Ds must remove the action before the thirty-day window closes.
Typically, the 30 days begins to run from service of the complaint.
o HOWEVER, a case that wasn't initially removed can become removable if the
following things happen:
● 28 USC § 1446(b)(3) - A non-diverse party may be dropped or a federal
cause of action is added
▪ If the changed circumstance creates diversity Jx, a 30 day
window opens if the removal happens within one year of the
commencement of the action. If after that 12 month period, the
only way out is to argue bad faith by P. 28 USC § 1446(b)(2)(A).

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 If the changed circumstance creates federal Q Jx a 30 day
▪
window opens regardless of how much time has passed.
● When there are multiple Ds, all must join the notice of removal per 28 USC § 1446(b)(2)(A).

Venue / FNC
ADL Notes re: Venue/FNC
Forum Non Convenies
Forum Non Convenies are essentially the fairness factors in another form and venue is the statutory
version of PJx. It was designed to accommodate defendants sued in inconvenient forums, not to give
them a choice of more attractive law. You cannot give weight to an unfavorable change in substantive
law in the forum non-convenies inquiry b/c then dismissal would rarely be proper.
● Ask: Where is it convenient to hear this case?
● With FNC - it's always a dismissal and P needs to refile.
o Why? BECAUSE YOU CANNOT TRANSFER.
o Can ONLY dismiss under FNC when there is an assurance that there is an alternative
forum for P's action.
● Bhopal (note 4, p. 860)
● FNC is a common law doctrine that was codified, but not replaced in 28 USC § 1404.
o Federal Courts: Only really has continued application in federal cases where the
alternative forum is abroad Sinconchem Int'l. (notes case, p. 860)
o State Courts: forum non conveniens is used when it should be brought in another state
● Gives courts a discretionary failsafe for avoiding litigation in a forum both inconvenient to
defendants and far removed from the witness and evidence.
o Can dismiss on forum non conveniens grounds even without resolving PJx & SMJx if a
foreign tribunal is a more suitable option Sinochem. (note 7 p. 861)

Venue
Venue is moving around a case within a state (venue). This ONLY applies to the original parties to the
action, and are not affected by third parties added by impleader or otherwise.

Venue is proper in either (1) a judicial district in which any D resides, if all Ds are resident of the state in
which the district is located [note: corporate D is deemed to reside in any district where it is subject to
the court's personal Jx with respect to the civil act in question], or (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 the
property that is subject of the action is situated. 28 USC § 1391(b)(1)&(2)

When you decide to sue, you decide to sue in a place, and while PJx encompasses the boundaries of a
state, it still may be inconvenient to sue them in that place. Venue takes us from the state level to the
substate level.
● E.g. sued in WDNY (Buffalo) but lie in Manhattan (SDNY) --> 6 hr drive, so it may be inconvenient
to be tried there, which is why you have VENUE.
o With venue, we TRANSFER to the appropriate venue (meaning appropriate fed case).
● This is also true at the state level. You can't transfer a state-law case to another
state, you can only move around within the state/soverign.

You need proper PJx & proper Venue to file a lawsuit. They layer on top of one another.
● PJx & venue rules can be used to get the outcome a party wants

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Note: Proper Venue is NOT required for a valid judgment and must be raised in a timely manner [FRCP
12(h)(1)] or it is waived.

General things to know:

● CT only has 1 federal district with 2 locations
● NY has 4 districts
o Manhattan is its own district and a lot of securities litigation is in manhattan
● Need proper PJx and Proper Venue to file your lawsuit

Venue Statutes
● 28 USC § 1390 - Venue: Scope
● 28 USC § 1391 - General Venue Statute
o 28 USC § 1391(b)(1) - A civil action can be brought in any district in which a D resides IF
all Ds reside in the same state
● Residency -- look at 28 USC § 1391(c) -- for ppl §1391(c)(1), for corps §1391(c)(2)
o 28 USC § 1391(b)(2) - A civil action can be brought in a judicial distrct in which a
substantial part of the events giving rise to the claim occurred or a sub. Part of property
that is subject to the claim is located
o 28 USC § 1391(b)(3) - Fallback provision - triggered only if neither the party based nor
claim based provisions identify an appropriate district, the action may be brought in any
judicial district "in which any defendant is subject to the court's personal Jx with respect
to such an action.
o Most important thing to cite would be 1391(b) and 1391(c)
o Note: this statute only grants venue. It does NOT grant PJx
● 28 USC § 1404 - Change of Venue
o Forum selection clause is an important and often determinate factor when ruling to
transfer to an appropriate venue under § 1404. However once transferred to an
appropriate venue, that venue can still be dismissed under forum non conveniens.
● 28 USC § 1406 - Cure or Waiver of Defects

FRCP 12(b): Defenses

● 12(b)(1) - Lack of Subject Matter Jx (can be raised at any point)
● 12(b)(2) - Lack of PJx (**must be raised in D's response @ beginning or it's lost)
● 12(b)(3) - Improper Venue (**must be raised in D's response or it's lost)
● 12(b)(4) - Insufficient Process (**must be raised in D's response or it's lost)
● 12(b)(5) - Insufficient Service of Process (**must be raised in D's response or it's lost)
● 12(b)(6) - Failure to State a Claim
● 12(b)(7) - Failure to Join a Party under Rule 19

Class 7 – Erie/Personal Jx
Class Notes
Personal Jx – ADL Class Notes
ON EXAM:
● Do not say the test for personal jx is that we determine jx based upon where the person is
present
o Presence IS NOT Jx

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 ● Jx is established AT THE TIME OF FILING. Doesn't matter if they move later.
● If/when defamation comes up -- look at Walden under Sp PJx Cases! She telegraphed this!
● For Long Arm Statutes
o Does the conduct fall under the Long Arm Statute?
● If you see service of process/consent to Jx, this is not a PJx question, you don't have to do Int'l
Shoe
Generally:
1. Every state has exclusive jx over its property/persons within its state
2. No state can exercise jx over persons without this or long-arm statute
3. For COMPANIES, it doesn't matter that you serve the CEO, he is his own man. You must serve
the COMPANY.
a. you have to follow the appropriate rules to establish Jx over them

● Service of process within the state establishes PJx

● Long Arm Statute allows state to exercise Jx, each state has their own statute and it varies.
● Jx should arise out of or relate to the D's conduct within a state

Three types of personal JX to know:

● In personam jx: jurisdiction over person for all claims and amounts
● In rem jx: jurisdiction over property
● Quasi-in rem jx: even though it doesn't look like it fits, I put a quasi so it counts

Barbri – Erie
With Erie, the question really is can the judge ignore state law or must she apply state law?
● If substantive law? Must apply state law.

There are actually two prongs to this analysis, the Hanna prong and the Erie prong.
1. Is there an on point federal provision that directly conflicts with state law?
Yes (Hanna prong) 🡪 apply federal law unless invalid (supremacy clause)
No 🡪 move to step 2
2. If no federal law is on point? Then MUST apply state law, unless it’s procedural.
How to determine? Analyze all three and come to a reasonable conclusion:
1. Outcome Determinative Test: If you use state law, you’d get a different result
from federal law?
e.g., statute of limitation has been tolled in state court, but not federal?
Outcome determinative.
2. Balance of Interests: Look at state interest v. federal interest and balance the
two. If one has a strong reason for a thing, and the other does not, go with that
law.
e.g., strong federal interest in jury trials.
3. Twin Aims of Erie: (1) avoid forum shopping & (2) avoid inequitable
administration of law (fairness of forums).
* if judge ignores state law, will it cause litigants to flock to federal court?
If so 🡪 state law, babyyyyy.

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Lahav – Erie
● Rules of Decision Act - 28 U.S. Code § 1652
● The laws of the several states, except where the Constitution or treaties of the
United States or Acts of Congress otherwise require or provide, shall be regarded
as rules of decision in civil actions in the courts of the United States, in cases
where they apply.
● Rules Enabling Act - 28 U.S. Code § 2072
● (a) The Supreme Court shall have the power to prescribe 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 appeals.
● (b) 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.

Oquendo
Erie
● Erie --> federal procedural rules apply in federal cases (before Erie cts did not apply fed
procedural rules b/c they didn't exist) and state substantive law will be applied in federal courts
(federal common law was very limited after Erie)
● NY --> choice of law principles, in most cases you go to that state's laws, but in certain
circumstances you go to other laws (a random point that has nada to do with this)
● Fairness was an issue --> if you offer out of state parties to choose laws and forums then they
violate fairness
● An angle of federalism here, but in diversity jx the law of that state applies
● Dissent: should have just reversed because negligence applied, regardless of which state law v.
federal common law was an issue

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 ● THIS IS IMPORTANT BECAUSE MOST COMPLEX CASES GET TO SCOTUS THROUGH DIVERSITY JX
o Statutory updates: especially in class actions, the law has augmented the span of
diversity jx since Erie. So, now there are all these rules.
● Check the statute re: class actions and jurisdiction
● "Federal courts are friendlier to business"

Hanna v. Plumer
When you're faced with a procedural rule, what SCOTUS must decide is whether the rule violates the
Rules Enabling Act or the Constitution. If it does neither of these things, you must follow the rule.
● This simply changes the enforcement of state-created rights
● Concurrence: only meant to curtail forum shopping, but actually on the side it sought to protect
federalism. Thus, for Harlan, does the choice of rule affect state's regulation of the primary
conduct. It does not.

Sosa v. Alvarez Manchain

● Alien Torts Claim Act --> torts against other people
● Majority "seems" to be arguing against originalism --> not limited to violations at the time of
enactment, but you need to look not only to US law, but also international law to determine the
scope. However, when you do this, you must exercise restraint.
o Federal cause of action must rest on a universally accepted and specifically defined
cause of action in international law.
o An aspiration cannot support a cause of action.
● Federal Tort Claims Act does create a small cause of action.
● Concurrences
o Scalia --> originalism is the formation; look at the time of enactment and those kinds of
acts are permissible. Also, federal cause of action findings are not permissible in this
area after Erie
o Breyer: Not overwhelmingly illegal nor does it support with univeral jx

Jesner v. Arab Bank

● Which Defendants can you sue (important with the dissent)
● P brings claim against D & files a complaint that's based on an international norm (terrorism)

WW VW
● Due Process
● Reasonableness
o What does it mean? Minimum Contacts
● Minimum Contacts
● Foreseeability/Specific Rules
● These criteria "hang together"

Case Notes
Jesner v. Arab Bank (p. 302) (2018) - plurality
● Framework for determining whether Judiciary has authority, in an ATS action, to make the
determination that a violation under that statute occurred, and, if so, whether they can enforce
authority without congressional authority.

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 o Does law of nations impose liability on corporations for human rights violations by its
employees?
● No. It only creates a cause of action against individuals, not corporations.
o Does the Court have authority and discretion in an ATS suit to impose liability on a corp
without specific direction from Congress?
● Only the legislature can create private rights of action, not courts, and to do so here implicates
separation of powers as it involves foreigners.
o Avoids determining whether corporate liability is a question that is governed by
corporate law and directs Congress to determine this, especially since the corporation
here is foreign.
Thomas, J., concurring
● Courts should not be in the business of creating new causes of action, even in terms of the
Alient Torts Statute.
Alito, J., concurring
● ATS is a jx statute, which advises caution in this area, and should decline creation of causes of
action whenever it would not materially advance the ATS.
Gorsuch, J., concurring
● Should refuse invitations to create new forms of legal liability.
● Should just dismiss on the basis of the fact that a group of foreign Ps want to have a federal ct
invent a new cause of action so they can sue another foreigner in US court. In any other context,
this would be dismissed.
● Any application of Sosa (2) should account the proper limits of judicial function. Federal courts
lack the institutional expertise and constitutional authority to oversee foreign policy and nat'l
security and should be wary of heading into this area.
Sotomayor, J., dissenting
● Nothing in the language of the ATS or its legislative background rebuts the presumption that it
incorporates the usual rules governing corporate tort liability. Completely banning corporate
liability under the ATS is not the best way to address the diplomatic friction this lawsuit caused.
Allowing corporate immunity ensures foreign corporations have no liability for human rights
violations. Corporations may profit from bad acts. A private radio station that broadcast
incendiary rhetoric fueled the genocide of 800,000 Rwandans. Immunizing corporations
undermines the intent of the ATS to impose liability for violations of the law of nations.

World Wide Volkswagen v. Woodson (p. 324) (1980)

● Issue: What must be foreseeable under due process to render in personam jx over a defendant
in a forum state?
● Holding: Presence of its products in that state is not enough. Rather, it is that the D's conduct
and connection with the forum state are such that they should reasonably anticipate being
brought into court there.
● The Due Process Clause of the Fourteenth Amendment limits the power of a state court to
render a valid personal judgment against a nonresident defendant. Kulko v. California Superior
Court, 436 U.S. 84, 91 (1978). A judgment rendered in violation of due process is void in the
rendering State and is not entitled to full faith and credit elsewhere. Pennoyer v. Neff, 95 U.S.
714, 732 -733 (1878). Due process requires that the defendant be given adequate notice of the
suit, Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313 -314 (1950), and be subject to the
personal jurisdiction of the court, International Shoe Co. v. Washington, 326 U.S. 310 (1945).
Brennan, J., dissenting

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 ● When determining its personal jurisdiction over a non-resident defendant, a court may consider
the interest of the forum state in proceeding with the case, and the actual burden the
defendant must bear in defending the action in the state, in addition to the defendant’s
contacts with the state. See McGee v. International Life Insurance Co., 355 U.S. 220 (1957).
Further, the minimum contacts test established in International Shoe may be outdated. Given
modern realities, fairness and reasonableness no longer require the extreme concern for non-
resident defendants that was necessary at the time that case was decided. Here, the State of
Oklahoma has a legitimate interest in proceeding with this case because it involves the
enforcement of its traffic laws. Additionally, defending this action in Oklahoma would not
unduly inconvenience the plaintiffs. Finally, the plaintiffs are not wholly unconnected with the
State of Oklahoma. They sell automobiles that, by their very nature, are mobile and capable of
traveling to distant states. Therefore, when the plaintiffs sold the automobile to the Robinsons,
they purposefully injected the automobile into the stream of interstate commerce. In cases such
as this, where the non-resident defendant’s contacts with the forum state are less significant,
but the state has a strong interest in proceeding with the case and the defendant is not unfairly
burdened by defending the action in the forum state, a state court’s assertion of personal
jurisdiction over the defendant may be justified.
Marshall, J., dissenting
● Concerned by the narrow view of the forum-related conduct that the majority takes in this case
& doesn't believe foreseeability alone should drive this framework.
Blackmun, J., dissenting
● We are a nation on wheels, and doesn't see a distinction in terms of foreseeability that a retail
sale would be in oklahoma or a resale could also happen there.

Burnham v. Superior Ct of California (p. 335)

● Issue: Does International Shoe's interpretation of the Due Process clause of the 14th
amendment deny PJx over a non-resident who was personally served while temporarily in the
FS?
● Holding: No. Actual service establishes PJx over a person who is physically present in the FS.
The minimum contacts/intl. shoe standard is not a way to negate jx by physical presence but
runs alongside when physical presence isn't directly established.
● Jx on presence alone constitutes due process because it is one of the continuing traditions of the
legal system that defines the due process standard of traditional notions of fair play and
substantial justice. This standard was built on the idea of physical presence.
White, J., concurring
● Although Ct has authority to examine traditionally accepted practices, it has not been shown
anywhere that they need to re: service of process.
Brennan, J., concurring
● Does not believe we should be relying on historical pedigree to determine pjx. While tradition is
relevant, it's not dispositive. Additionally, you don't need history here, because simply by visiting
a state you avail yourself of the forum, much as was the case in Burger King.
Stevens, J., concurring
● Thinks the decision is too broad, but it is proper in this case.

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Allstate Insurance Co. v. Hague (p. 342) (1981)
● If a forum state has, in aggregate, significant contacts with the litigants and the underlying
events, it may apply its own law without violating the Due Process or Full Faith and Credit
Clause.
● Implicit in this inquiry is the recognition, long accepted by this Court, that a set of facts giving
rise to a lawsuit, or a particular issue within a lawsuit, may justify, in constitutional terms,
application of the law of more than one jurisdiction.
● As a result, the forum State may have to select one law from among the laws of several
jurisdictions having some contact with the controversy.
● In deciding constitutional choice-of-law questions, whether under the Due Process Clause or the
Full Faith and Credit Clause, this Court has traditionally examined the contacts of the State,
whose law was applied, with the parties and with the occurrence or transaction giving rise to the
litigation. In order to ensure that the choice of law is neither arbitrary nor fundamentally unfair,
the Court has invalidated the choice of law of a State which has had no significant contact or
significant aggregation of contacts, creating state interests, with the parties and the occurrence
or transaction.
● For a State’s substantive law to be selected in a constitutionally permissible manner, that State
must have a significant contact or significant aggregation of contacts, creating state interests,
such that choice of its law is neither arbitrary nor fundamentally unfair.
● A post-occurrence change of residency to the forum State was insufficient, by itself, to confer
power on the forum State to choose its law, but the move isn't wholly irrelevant.
Stevens, J., concurring
● Would analyze a case like this under the following framework, because he believes they
implicate separate interests
o Does the Full Faith & Credit Clause require the forum state to apply another state's
substantive law?
● FF&C Clause is designed to transform the several states from independent
sovereigns into a union and does this by directing that a state, when acting as
the forum for litigation having multistate aspects/implications respect the
legitimate interests of other states and avoid infringement upon their
sovereignty.
● HE BELIEVES: FF&C shouldn't invalidate a state court's choice of forum law
unless that choice threatens the federal interest in national unity by
unjustifiably infringing upon another state's legitimate interests.
o Does the 14th Amendment's DPC prevent the forum state from applying its own law?
● It may be assumed that a choice of law decision would violate the DPC if it were
totally arbitrary or if it were fundamentally unfair to either litigant.
▪ Different ways to demonstrate unfairness and works through them.
Powell, J., dissenting
● The court should invalidate a forum state's decision to apply its own law only when there are no
significant contacts between the state and the litigation. This is the modest check on state
power under the DPC of the 14th amend.
● Conflicts framework on p. 348
o At least since Carroll v. Lanza, 349 U.S. 408 (1955), the Court has recognized that both
the Due Process and the Full Faith and Credit Clauses are satisfied if the forum has such
significant contacts with the litigation that it has a legitimate state interest in applying
its own law. The significance of asserted contacts must be evaluated in light of the

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 constitutional policies that oversight by this Court should serve. Two enduring policies
emerge from our cases.
o First, the contacts between the forum State and the litigation should not be so “slight
and casual” that it would be fundamentally unfair to a litigant for the forum to apply its
own State’s law. Clay v. Sun Ins. Office, Ltd., 377 U.S. 179 . 182 (1964). The touchstone
here is the reasonable expectation of the parties. . . .
o Second, the forum State must have a legitimate interest in the outcome of the litigation
before it. Pacific Ins. Co. v. Industrial Accident Comm’n, 306 U.S. 493 (1939). The Full
Faith and Credit Clause addresses the accommodation of sovereign power among the
various States. Under limited circumstances, it requires one State to give effect to the
statutory law of another State. Nevada v. Hall, 440 U.S. 410, 423 (1979).

All other O.G. Civ Pro PJx Cases Included for ~spice~

International Shoe v. State of Washington (p. 684)

● Issue: What does due process require w/ regard to in personam judgment for
persons/corporations that are not physically present within the forum state?
● Holding: It is required that they have certain minimum contacts with the forum that the
maintenance of suit doesn't offend traditional notions of fair play and substantial justice.

● Issue: What types of contacts are sufficient to satisfy the demands of due process?
● Holding: Such contacts of a person/corp within the forum state that make it reasonable, in
context of federal system of gvt, to require a corp/person to defend the suit that's brought
there. An estimate of inconveniences which would result if suit brought there is also relevant.

● Issue: How can boundaries which justify bringing a suit be measured?

● Holding: Cannot be mechanical/quantitative, but depends on the quality/nature of activity in
relation to the fair and orderly administration of the laws due process was meant to ensure.

The extent to which a corp/person exercises the privilege of conducting activities within the state,
it enjoys the benefits & protections of that state's laws. The exercise of that privilege may give
rise to obligations and so far as those obligations arise out of/are connected to the activities
within the state, a procedure which requires the corp/person to respond to a suit in that state
cannot be said to be undue.

● Issue: What should be satisfied re: minimum contacts with a forum state?
● Holding: Reasonable/satisfies due process; reasonably calculated notice to apprise of the suit;
activities cannot be irregular/casual; activities should be systemic and continuous; involve the
benefits and protections of the state laws, thus subjecting the actor to the state's right to
enforce its laws upon the actor.

Hanson v. Denckla (p. 698)

● Unilateral activity of those who claim some relationship with a nonresident defendant cannot
satisfy the requirement of contact with the forum State. It is essential in each case that there be
some act by which the defendant purposefully avails itself of the privilege of conducting
activities within the forum State, thus invoking the benefits and protections of its laws.

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Walden v. Fiore (p. 715)
● Issue: Can a P bring suit against a D in a state that's more convenient to them when D's actions
do not involve that state?
● Holding: No. Due process limits the state's adjudicative authority in order to protect the non-
resident D, not the convenience of P or 3rd party. However significant P's contacts with the
forum, those contacts cannot be decisive in determining whether D's due process rights were
violated. Second, "minimum contacts analysis" looks to D's contacts w/ persons who reside
there. P cannot be the only link btwn D & forum. D's CONDUCT must form connection w/
forum state. Due process requires that a D be haled into court based on his own affiliations w/
the state, not based on random/fortuitous contacts he makes with other affiliated with that
state.

● Issue: How is personal jx established in intentional torts?

● Holding: A forum state's exercise of PJx over an out of state intentional tortfeasor must be
based on intentional conduct by the D that creates necessary contacts with the forum and can't
rely on D's random, fortuitous or attenuated contacts or on the unilateral activity of a P.

● Issue: Is mere injury to a forum resident sufficient enough to establish connection to the forum?
● Holding: No. Regardless of where a P lives or works, an injury is jurisdictionally relevant only
insofar as it shows that the D has formed a contact with the forum state. In a DEFAMATION
case (Calder -- referenced on 718-719), defamation occurs in the state where the "brunt" of the
injury occurs. So in a newspaper article, the injury would not have occurred "but for" the
newspaper writing an article for publication in that state that was read by a large number of
residents of that state. The "effects" caused by the D's conduct connected the D's conduct to
the FS, not just that P resided there.

Asahi Metal Industry Co v. Superior Ct of California (p. 720)

● Issue: Does simple awareness of a product's entry into the forum state via stream of commerce
trigger Jx over defendant?
● Holding: No. The "substantive connection" btwn the D and the forum state necessary for a
finding of minimum contacts must come about by an action of the D purposefully directed
toward the forum state. The placement of a product into the stream of commerce, without
more, is not an act of the D directed toward the forum state.

Bristol-Myers Squibb v Superior Ct of CA (p. 749)

● Issue: Can a state ct exercise specific PJx over a corporation who does business in, but is not
headquartered in, the forum state when non-resident P's claims are exactly the same as
residents' claims?
● Holding: No. What is needed is a connection between the forum and the specific claims at
issue. A D's relationship with a 3rd party standing along is an insufficient basis for Jx. This
remains true even when 3rd partys (in-state P) can bring claims similar to those by nonresidents.
It is not sufficient nor relevant that the corp does unrelated business in the forum state.
● Issue: What are the types of PJx that can be exercised under a Defendant Corporation?
● Holding: There are two types:
o General/All Purpose PJx: If the Def. Corp.'s affiliations w/in the state are so continuous
and systematic as to render it essentially at home in the forum state.
o Specific/Case-Linked PJx: Def. Corp must meet all three to be valid:

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 ● Def. must have purposefully availed itself of the privilege of conducting activities
within the forum state or have purposefully directed its conduct into the forum
state
● The P's claim must arise out of/relate to the D's forum conduct
● Exercise of PJx must be reasonable under the circumstances, which is
determined by analyzing
▪ Burden on D
▪ Forum state's interest in adjudicating the dispute
▪ P's interest in obtaining convenient and effective relief
▪ Interstate judicial system's interest in obtaining the most efficient
resolution of controversies
▪ The shared interest of the several States in furthering fundamental
substantive social policies.

Burger King v. Rudzewicz (p. 762)

● Issue: Can an individual's contract with an out of state party alone establish sufficient minimum
contacts to allow a state to exercise PJx over an OOS pty in the other party's home forum?
● Holding: No. PJx does not rely on mechanical tests like this, instead using a "highly realistic"
approach that recognizes that a contract is ordinarily an intermediate step serving to tie up prior
business negotiations w/ further consequences which themselves are the real object of the
business transaction.
o INSTEAD: evaluate prior negotiations and contemplated future consequences along w/
contract terms & parties course of dealing to determine whether D purposefully
established minimum contacts within the forum.
● Issue: Can entering into an agreement that states an out of state's forum laws govern all
franchise disputes show foreseeability/personal availment?
● Holding: Yes. If other business activities indicate the party was able to foresee that they'd be
subject to PJx it's foreseeable. And allowing another state to govern disputes avails OOS party
to state's benefits and protections.

Rao v. Alaska Airlines (p. 774)

● Issue: Can the mere ability to access information within the forum state via the internet subject
an out of state D to PJx in that forum state?
● Holding: No. Electronic activity is subject to the Zippo test to establish PJx. To state otherwise
would eliminate lack of PJx as a defense.
● Issue: What is the Zippo test?
● Holding: For a forum state to have PJx over electronic activity, the person/corp must:
i. Direct electronic activity into the state
ii. With the manifested intent of engaging in business or other interactions with the state;
AND
iii. The activity creates, in a person w/in the forum State, a potential cause of action
cognizable in the state's court.

Shaffer v. Heitner (p. 788)

● Issue: Does Intl. Shoe's fair play & min. contacts standards apply to all types of state court jx?

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 ● Holding: Yes. Even in rem/quasi-in rem cases re: property must be evaluated against
international shoe. Although presence of D's property may SUGGEST existence of other ties to
the forum state, presence of property alone doesn't support PJx.
● Issue: Is a person's role as a director/officer of a corporation sufficient to establish minimum
contacts w/ forum state for an out of state resident?
● Holding: No. There's no necessary relationship between serving as a corporate fiduciary and
owning stock/other interests of corp. It strains reason to suggest that buying securities in a
corporation in a Forum State subjects them to Jx in that FS.
● Note: Shaffer only applies to people who aren't in FS (absent Ds, NOT to people who are in the
FS)

Carnival Cruises v. Schutte (IN CLASS)

● Court held when you agree to a choice of forum clause you're consenting to PJx in that state.
o Only way to avoid this is if there's a contracts-based reason (e.g. duress) to get out of
the actual underlying contract.

Pennoyer v. Neff (p. 670)

● Issue: Can personal Jx via in rem jx (property within a state's borders) be established after the
fact and retroactively apply to a party for a case where personal/in rem jx wasn't applicable
beforehand?
● Holding: NO. If the judgment was void at the time it was rendered, it will not subsequently be
valid if property is discovered or obtained after the fact. The judgment, if void when rendered,
will always be void. THIS IS STILL THE CASE. JX is established at the time of filing.
● Issue: does property have to be "attached" in order to establish personal Jx?
● Holding: Yes. Ownership of property alone is not enough, property must be attached to suit or
brought in in some way under jx to establish in rem Jx.
● Issue: Can service of process by publication where actions are brought against non-residents be
used for any court action?
● Holding: No. This is only effectual for in rem (meaning property w/in state's borders). For any
other purpose than to subject property of a non-resident to valid claims against him would
require appearance or personal service of process before the defendant could be personally
bound by any judgment rendered. OVERTURNED IN INTL SHOE, PRESENCE IS NOT ENOUGH.

Navigating a PJx Question – Flow Chart <3

1. Is this case in State or Federal Court?
a. If Federal Court, reference 4(K)(1)(a) in your answer
i. If 4(K)(1)(A) does apply, proceed to Long Arm Statute
1. FOR EXAM, STATE "the reach of the federal court is the same as the
state in which it sits, so I will next look at the Long Arm Statute."
ii. If 4(K)(1)(A) DOES NOT apply, look to 100 mile bulge or whether it is a question
of federal law THINK TWICE BEFORE GOING DOWN THIS RABBIT HOLE & MAKE
SURE YOU ARE CORRECT
1. FRCP 4(K)(1)(B): a party joined under FRCP 14 or FRCP 19 and served
w/in a judicial district not more than 100 miles from where the
summons was issued.
2. FRCP 4(K)(1)(C): authorized by a federal statute
3. FRCP 4(K)(2): a.k.a. Federal long arm statute. Has 3 prongs.

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 a. Claim must arise under federal law and
b. Defendant must be beyond the Jx of any state law and
c. The exercise of Jx must not violate the D's rights under the
Constitution, meaning that even though D's contacts are so
scattered that no one state has Jx, there are sufficient
aggregate contacts with the US as a whole to satisfy the 5th
Amendment's Due Process clause.
i. HOWEVER: If 1 state has Jx, 4(K)(2) does NOT apply.
b. If State Court, proceed directly to the Long Arm Statute
2. Does the Long Arm Statute (LAS) allow for the state to exercise Jx over nonresidents who
engaged in the disputed act?
a. If Yes --> proceed
b. If NO --> No jurisdiction is permitted
c. If no LAS in hypo --> state this, and say that you will assume it has PJx, but if LAS does
not cover this issue, there is exercise of Jx is not permitted.
3. NEXT ASK re: CONTACTS/Due Process (NOTE FOR EXAM: 5th Amendment - federal; 14th
Amendment - state)
a. First ask if the claim is the claim linked to the contact with the forum? Meaning: what is
the relationship between the claim and the forum they are choosing (did the claim
happen there?)
i. If NO --> Must be General PJx
ii. If YES --> could be either, but this is where specific PJx Applies.
4. Type of Personal Jx
a. Is there general personal Jx over Defendant?
i. For persons:
1. Are they domiciled here? Can only be domiciled in one place.
ii. For corporations:
1. Are their HQ/Place of Incorporation in the forum state?
2. OR: are their contacts so continuous and systematic that they are
"essentially at home" in the forum state?
b. Is there specific personal Jx over Defendant?
i. Minimum Contacts Test (int'l shoe): **Must be D's contacts**
1. Purposeful Availment/Purposeful direction of conduct into forum state:
received the benefit of conducting activities within the forum state
a. NOTE: D acting unilaterally does not rise to purposeful
availment.
b. Is this a situation where there is a product that has come into
the state through regular commercial activity?
i. If no purposeful direction, then not availment.
c. Is this a situation where the contact is via a contract? If so,
what is the duration of the K and what are the links formed
btwn D and the forum in the course of negotiation/performance
of the K?
d. Is this a situation where a D committed an intentional tort OOS
that harmed P in state?
i. Defamation happens in the state where P resides b/c
harm was done to them, so D reached into state to
harm P

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 2. Nexus requirement: Claim arises out of/relates to the Defendant's
forum conduct
a. CANNOT BE P's unilateral conduct in forum state.
3. Reasonableness/Fairness Factors MUST SATISFY MIN CONTACTS &
NEXUS THEN TURN TO THIS. MENTION/ARGUE ALL 5 and WEIGH
these & make conclusion based off of weighing them
a. P's interest in pursuing litigation in forum state
i. How important is it to this P that this issue is RESOLVED
here, not just their interest in litigating the issue
b. D's burden of defending in the forum state
c. Forum state's interest in adjudicating this claim
d. Interstate Judicial System's interest in efficient resolution of
disputes
i. Judicial efficiency question
ii. Could be, for ex: All of our evidence is in X state,
therefore it is more efficient to argue it here.
e. Interest of the several states in public policy/enforcing the law
i. Could the P sue ANYWHERE if the case was dismissed
here
ii. In Asahi, for example, no interest in the several states in
litigating court cases of foreign companies
iii. OR: public policy arguments would fall here.
c. Rare Other Scenarios, where it comports with Due Process
i. Service of Process w/in Forum State
1. If the D is served in the forum state, they are subject to PJx in that state.
Also known as "Tag Jx" (Burnham)
ii. Consent to Jx in Forum State (usually in a contract)
1. NOTE: consent to apply the LAWS of a state is NOT consent to be tried
in that state.
a. However, consent to laws can be used to argue in favor of
exercising Jx in that state.
iii. Property in the FS (in rem/quasi-in rem Jx)
1. Recognize Shaffer -- you can't just attach things and get Jx over them
(like shares of a stock)
2. Look at Shaffer hypos if this even comes up TREAD CAREFULLY --
SHAFFER GOVERNS

In exam, make analogies to cases we read!!!

Personal Jx. Rules/Charts

Zippo Test re: Electronic Activity - Sp. PJx (NOT PRECEDENT – JUST FOLLOWED MANY PLACES)
● For a forum state to have PJx over electronic activity, the person/corp must:
i. Direct electronic activity into the state
ii. With the manifested intent of engaging in business or other interactions with
the state; AND
iii. The activity creates, in a person w/in the forum State, a potential cause of
action cognizable in the state's court.

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 ● Note re: electronic activity: some interesting further discussion on p. 783-84
i. LAHAV DOES NOT BELIEVE INTERNET AUTOMATICALLY = ZIPPO. YOU CAN USE
OTHER CASES FOR INTERNET. ANALOGIZE TO OTHER CASES.

Most tests included on Navigating slide.

FRCP 4(k)
● Default Rule: 4(k)(1)(A): subject to the Jx of a court of general Jx in the state where the
district court is located.
● IF YOU THINK IT IS SOMETHING ELSE, DOUBLE CHECK BEFORE PROCEEDING.

Class 7 – Choice of Law (Conflicts)/Tribal Courts/School

Board Cases
Class Notes
Allstate
● Relatively loose approach re: choice of law & choice of forum
o As long as the choice is not arbitrary, the court will let this go forward
● Not a heavy burden to prove.
● Dissent: MN advances no legitimate purpose in advancing its own law
o Unrelated to state purpose etc: thus place of employment is irrelevant.
o Still a low burden, in his view.
● Stephens, J., concurrence:
o FF & Credit clause --> sovereignty is at the heart of his analysis
o Rests his decision more on Due Process Clause & Fairness
o Questions of Full Faith & Credit Clause & Due Process apply, but the approach to these
two things is different.

**Try not to confuse choice of law/forum with minimum contacts analysis for PJx. PJx minimum contacts
is a much higher burden.

Forum --> much looser standard

Baker v. GM
● Finds it helpful to think about this case as having an injunction and if it is a violation.
● If GM & Elwell or 1 of 2 bring to MO and GM wants an injunction respected, the court can say -->
recognize the judgment that was already rendered.
● Under the guise --> I'll talk, but you have to subpoena him first (outside the scope anyway)
● Can't enforce an agreement to stop someone from testifying in another state, instead the one
who wants to enforce it has to go to the OG court to enforce the injunction.
Michigan Missouri
Case where injunction GM can sue Elwell for enforcing judgment due to volunteering testimony
was granted INSTEAD: GM was trying to interfere with a case where no judgment
(Elwell v. GM) exists.
● Recognition means that the injunction is valid, BUT you have to go to MI and have the court
there say "our judgment wasn't respected."

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 ● RBG:
o If you have judgment, the Full Faith & Credit Clause requires recognition in another
state in equity or in common law. BUT(!) enforcement doesn't travel between different
states.

Complex Lit: includes school segregation and other stuff

Hart
● Violation by design has the same effect as a statute (state action)
● OG Opinion: finessing legal instruments to get where he wants to go.
● Special Master --> performs role of bureaucracy that the judge lacks.

Hart helps focus on how complex lit is different from regular litigation.
● Collectives and not individuals
● Violation is ongoing, not just a remedy for past harm
● Multiple steps and need to make adjustments
● Court retains jx for years
● Adjudication is forward looking
● Role of the judge => very involved and remains involved for a long period of time
o Needs to stay focused in order to ensure justice.

"Reserve plan" --> if you don't do this/your plan doesn't work, I as the special master/judge can use the
other party's plan.

Missouri v. Jenkins
● In certain cases you might have a right, but not a remedy
● Limits previous school desegregation cases and the ways courts can address school segregation.
● Find de jure segregation
● Eliminate vestiges to extent practicable
● Once eliminated, return the authority to the bureaucrats and not courts
● Oquendo thinks the justices are trying to fit this framing into a simple litigation model

Case Notes
Baker v. GM (p. 350) (1998)
● Enforcement measures do not travel with the sister state judgment as a preclusive effect does.
These measures are subject to the control of the forum law that issued the enforcement
measure.
o A decree cannot determine evidentiary issues in a suit brought by parties who were not
subject to the jx of the original court.
o SO: one state has no authority to shield a witness from another jx's subpoena power in a
case involving persons and causes outside of that forum's governance. So, a forum's
decree can't command obedience elsewhere on a matter that forum lacks authority to
resolve.
● Full Faith & Credit clause doesn't compel a state to substitute the statutes of other states for its
own statutes dealing with a subject matter concerning which it's competent to legislate. But,
with judgments, the FF&C standard is more exacting. HERE, a final judgment in one state, if
rendered by a court with adjudicatory authority over the subject matter and persons governed

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 by the judgment qualifies for recognition throughout the land. For claim and issue preclusion
purposes, the judgment of the rendering state gains national force.
Scalia, J., concurring
● Agrees because neither the statute doesn't compel injunction.
Kennedy, J., concurring
● The Court’s holding elucidates two broad exceptions to its rule (i.e. that there is no public policy
exception to the full faith and credit clause) that are unnecessarily broad: (1) it would allow one
state to disregard judgments from another state if the judgment purported to carry out an
official act within the exclusive jurisdiction of the state; and (2) full faith and credit does not
apply to injunctions that interfere with litigation over which the ordering court has no authority.
These exceptions are unnecessary to come to the same outcome here. In this case, the Bakers
were not bound by the injunction because they were not parties to the first litigation and were
not subject to Michigan’s jurisdiction. Because Michigan would not have sought to bind the
Bakers to the injunction, Missouri is not required to do so either.

Santa Clara Pueblo v. Martinez (p. 359) (1978)

● I: Does the Indian Civil Rights Act imply that an injunction can be brought against the tribes in
federal court to enforce ICRA against the tribes/officers?
● H: No. ICRA does not expressly authorize bringing civil actions for declaratory relief to enforce its
substantive provisions against tribes/tribal officers and can't be read to imply this authorization.
● Indian tribes have long been recognized as possessing the common-law immunity from suit
traditionally enjoyed by sovereign powers. This, like all other aspects of tribal sovereignty, is
subject to the superior & plenary control of Congress. But, without congressional authorization
the Indian Nations are exempt from suit.
o A waiver of sovereign immunity can't be implied, but must be unequivocally expressed.
● Since the respondent in a habeas corpus action is the individual custodian of the prisoner, this
provision of ICRA can't be read as a general waiver of sovereign immunity.
● Factors that are relevant in determining whether a cause of action is implicit in a statute not
expressly providing one:
o Is the P one of the class for whose special benefit the statute was enacted -- does the
statute create a right in favor of P?
o Is there any indication of legislative intent, explicit or implicit, either to create a remedy
or deny one?
o Is it consistent with underlying purposes of the legislative scheme to imply a remedy for
P?
o Is the cause of action one that's traditionally relegated to state/tribal law, in an area
basically the concern of the states/tribes, so that it'd be inappropriate to infer a cause of
action based solely on federal law?
● To vindicate tribal rights, you need to go to tribal forums and ICRA was meant to change the way
that tribal law is applied in these forums. But they have been repeatedly recognized as
appropriate forums for the exclusive adjudication of disputes affecting important personal and
property interests of both Indians and non-Indians.
● Where Congress seeks to promote dual objectives in a single statute, Courts must be more
hesitant than usual to infer a cause of action from silence that would serve one legislative
purpose, but not another.
● Federal court review in ICRA is limited to habeas in criminal cases and not over civil matters.

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 ● Congress' authority over Indian matters is very broad and court's role in adjusting relationship
between/among tribes is very restrained. While Congress CAN extend ICRA to civil actions in
violation of ICRA, but the Court cannot read this into the statute. Instead Congress needs to
make a CLEAR intention to permit further intrusion into tribal sovereignty that would result
from adjudication in a federal forum.

White, J., dissenting

● ICRA does not prohibit a federal action to review the actions taken by a tribe. The unique
sovereignty issue that arises in dealings with an Indian nation does not prevent the courts from
recognizing a federal cause of action. If Indians have a constitutional right under the ICRA,
Indians must also have a federal ability to enforce that right.

Hart v. Community School Board of Brooklyn (p. 367) (EDNY 1974)

● Found segregation in the school, regardless of type of discrimination (de facto or de jure) to be
unconstitutional.
● Failure to act on the racially imbalanced and underutilized school had the natural and
foreseeable effect of perpetuating this imbalance, foreseeability can be used to determine
whether segregation is unconstitutional.
● Factors to be considered when determining whether a school is segregated include:
o 1. The racial and ethnic composition of the student body, faculty and staff;
o 2. the racial and ethnic compositions of the school compared to that in the school
district and other schools in the district;
o 3. the attitude of the adult community, children in the school and other schools, and
teachers and staff toward the school;
o 4. the history of the school, particularly with respect to opening and closing of other
schools and changes in zoning patterns affecting the school;
o 5. the objective success of the school in educating its students as compared to that of
other schools in the district;
o 6. segregation within the school; and
o 7. skill of teachers, programs and facilities compared to those in other schools.
● FRCP 14: a D, as a 3rd party P, may serve a summons on a non party who is/may be liable for the
claim against him.
● Impleader, however, is not a device for bringing any controversy into an action that may have
some relation to it.
● Duty to desegregate takes precedence, as a constitutional law, takes precedence over any
policy/procedure that administrators prioritize.
● The fact that a decree may require expenditure of public funds does not bar corrective action
resulting from the decree.
● Supplemental Opinion - Appointment of Special Master (p. 382) (EDNY 1974)
o FRCP 53 permits district courts in non-jury cases to name special masters in any action
upon a showing that some exceptional condition requires it. The rule is broad enough to
allow for appointment of expert advisors.
o R53's "exceptionality" requirement is more than satisfied when the court is faced with a
polycentric problem that can't easily be resolved through traditional adjudication.
o Determination of the compensation and the party that shall pay the compensation rests
in the discretion of the district court, subject to review in case of abuse.

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Hart v. School Bd of Brooklyn (p. 386) (EDNY 1974)
● Final order/judgment resulting from reports of special master.
● Although the P's plan has less of a burden on the minority students, this is not, without more, a
justification to accept their plan. If the other side's plans were made in a good faith attempt to
remedy, the court can accept those plans proffered by the D, as they have more knowledge on
the matter, provided the special master also thinks it is a decent plan.

Hart v. School Bd. Of Brooklyn (p. 389) (2d Cir. 1975)

● Unless the Supreme Court speaks to the contrary, we believe that a finding of de jure
segregation may be based on actions taken, coupled with omissions made, by governmental
authorities which have the natural and foreseeable consequence of causing educational
segregation. The redeployment of feeder schools is an illustration. We do not think that the
Supreme Court has said that intent may not be established by proof of the foreseeable effect on
the segregation picture of willful acts.
● A solution that tries to enlist the better nature of a community in a constructive manner is not a
surrender to community prejudice, and a grant of a year's extension to implement was within
the District Ct's discretion re: remedies.
● Though the District Court did not formally dismiss the third-party action it did so in practical
effect when it “mooted” the action. While the judge did not define the term, it generally means
that there is no longer a case or controversy within the meaning of Article III of the Constitution.

Missouri v. Jenkins (p. 393) (1995)

● The district court’s efforts to encourage white students to re-enter Kansas City, Missouri’s public
school system and increase salaries for all teachers and staff were “beyond the scope of the
constitutional violation.” This Court held in Milliken v. Bradley, 418 U.S. 717 (1974), that federal
courts cannot order inter-school district relief under Brown II, 349 U.S. 294 (1955), unless there
is evidence that the districts have violated Brown. This case is remanded so that the district
court can reconsider the scope of its remedial jurisdiction under Freeman v. Pitts, 503 U.S. 467
(1992).
O'Connor, J., concurring
● District Ct should have ordered restorations and remedies that would place previously
segregated students on par with their white counterparts, but went further, and ordered
improvement to the school district as a whole, including changes at schools that weren't
segregated. But biggest issue was that it made desegregative attractiveleness the underlying
goal of its remedy for the specific purpose of reversing white flight. You can't go that far.
Thomas, J., concurring
● Just because a school system is all black does not mean that the system violates the
Constitution. The district court did not find a continuing pattern of same-race schools, which is
the only indication of unlawful segregation. Voluntary white flight is not a constitutional
violation. “It never ceases to amaze me that the courts are so willing to assume that anything
that is predominantly black must be inferior.” The district court’s race-conscious approach
violates the Equal Protection Clause; Articles I, II, and III of the Constitution; and the Tenth
Amendment.
Ginsburg, J., dissenting
● While the district’s remedial programs have been in place for seven years, that pales in
comparison to the more than two centuries “of firmly entrenched official discrimination.”
Souter, J., dissenting

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 ● The Court should have deferred to the district court’s remedy in light of the factual findings.
Specifically, the salary orders were necessary because this was a massive part of why teachers
were not staying in the district. This case is distinguishable from Milliken, which involved inter-
district busing.

Class 8 - Prison Litigation/School Desegregation

Class Notes
Prison Lit/School Deseg Cases --> took this form in the 1970s, but then generated a backlash afterward
● The impression Oquendo gets is that SCOTUS started with a lot of energy (as did other courts)

A lot of the themes that color the school desegregation debate are shown in Mo v. Jenkins
● SCOTUS has underscored that what violates the constitution is de jure segregation
o Any remedy must be linked to that kind of violation
● Majority finds an issue with the plan b/c it not only remedies segregation, but tries to recruit
white students from out of district
o Eliminating racially identifiable schools that resulted from de jure segregation and the
decision by the district goes beyond what the court should be engaging in
● Even mechanisms available for a long time in the common law tradition are called into question
● If you can't narrowly tailor remedy to de jure segregation, you cannot do it
● The if you have a violation of a right, you must have a remedy issue is somewhat called into
question in these cases
● Intent of DC should be to restore control eventually to the local authorities
● Concurrences: mostly deal with the emphases that are different here
● O'Connor Concurrence:
o Was about putting it on the same level, but not going so far as dealing with white flight
from the cities
o Because the judge found no interdistrict violation, he should not have ordered
interdistrict remedies
● Narrowly tailor the remedy
o Judges can't take action against racial bias without constitutional violation
● Thomas Concurrence:
o Majority minority being a problem is racial bias
o Attacks structural injunctions, which are allowed due to impatience and encourage
judicial overreach
o Broad equitable remedies run counter to the framers intent
● Federal judges interfering with legislature and state affairs
o INSTEAD: Design remedial decrees to only benefit the victims of the impermissible
conduct (here: segregation)
● Souter Dissent:
o Since DC agreed salary discrepancy was part of the issue, they need to address it and it
was proper to include that here
o Reacting more directly to the majority than Ginsburg
o Take all steps necessary to eliminate all vestiges that have been proven
● D hasn't shown they have eliminated these vestiges

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 ● So, you should not simply rely on the local officials when the problem has not
yet been resolved
● Burden of showing that they have no further need for judicial control still lies
with the party seeking relief from the existing order
o What he thinks Majority wants: legislation
● But dissent would say this flies in the face of this kind of legislation
**Always think of the best argument possible for the other side when dealing with the dissent**

● Thinks FRCP bring us closer to public law

o Thus Dissenters have space to argue we have to achieve justice
o Need to find right remedy for the impingement at stake

Common Law: adjudication without a statute

Estelle v. Wayne
● SCOTUS rejects cert, but extensive dissent
● In forma pauperis --> "in the manner of a pauper." Allowing a poor person to bring suit without
liability for the costs of the suit.
● Declaratory & equitable relief: in the realm of equity
● Huge prison reform case, judge justice brings in the US and the US goes wild and brings in other
parties and expanding the issues
o Mandamus: was a way to try to stop this from happening
● Rehnquist: should have granted cert b/c of the errors in the court below
o Irreparable harm may take place b/c US has expanded suit beyond recognition
● Interlocutory Appeal: need consent of district court and court of appeals
● Mandamus should be more readily available for conflicts between state and federal relations
o A concern with federalism

Hutto v. Finney
● District Ct: Have taken this as far as I can, its time to withdraw oversight
● Appeals Court: LOL no, you cannot do that you have to match the violation
● District Ct: Ok, here are some more things that you have to do to fix issues in prisons
● Appeals Ct: Agreed
● SCOTUS:
o Ok to have this remedy because of the degree of violation & inadequate compliance,
District Ct had full authority to go beyond previous orders to address elements leading
to the violation
o Mandate was justified in this instance & may not have been necessary had they
complied in the first place
o In complex lit: resistance by authorities, but then judges realize they have to work with
the D to achieve a remedy

Rufo v. Inmates of the Suffolk Cty Jail

● DCt --> denied motion to modify a consent decree, Appellate Ct --> held that was ok
● Scotus --> reverses
● Consent Decree -> final judgment, but it initiates with the parties

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 o Open for a longer period of time, so should be more subject to modification due to
changing circumstances
● Still have an incentive to pursue because judgment could be adverse and could be modified by
FRCP Rule 60
o Pty Seeking modification --> bears burden of persuasion
● In the background is the theory of res judicata
● IF ct retains jx --> need for modification increases
● Can be appropriate because of unforeseen obstacles/public interest
considerations
● Dissent
o Interest in protecting the finality of court decrees always counsels against modifications

Brown v. Plata
● A receiver in the prison context: A receivership is a legal remedy in lawsuits seeking to reform
jails and prisons. Used when all other tactics have failed, it strips the government of control and
puts a neutral, court-appointed expert — the “receiver” — in charge. The Supreme Court has
noted that a receivership “is not an end in itself” — it’s merely a stopgap designed to address
egregious rights violations. In cases striving to remake public institutions, receivership is the
most intrusive tool in a court’s arsenal, short of outright closure. After a receivership brings an
institution into compliance with the law, the court will return control to the government.
o Judges typically give receivers wide-ranging authority such as the power to manage
staff, make contracts, access government records, conduct confidential interviews,
procure goods, and set budgets.
● Kennedy: so much time has gone by, but no one has responded, so drastic measures are ok
o Unlike previous cases: time is not a justification to let this go, but instead supports
letting this continue.

Case Notes
Estelle v. Wayne (p. 407) (1976) - cert denied.
Rehnquist, J., dissenting
● Writ of mandamus is granted sparingly and reserved for really extraordinary cases --> objects to
not granting cert here.
● Intervenor traditionally takes the case as they find it, however, the motion to intervene but also
add parties as defendants over Petitioner's objections.
● FRCP 24(b) - requires that a would-be intervenor have, at minimum, some claim having a
question of law or fact in common with the action sought to be enjoined. But, the US has no
14th A claim against petitioners, which is the issue here.
● Note re: mandamus --> in court, this frequently appears when a party to a suit wants to appeal a
judge's decision, but is blocked by rules of interlocutory appeal. SO, the party sues the judge to
compel the judge to correct a mistake if no other means of review is available. Here, Rehnquist
believes that there is no other means of review available.

Hutto v. Finney (p. 409) (1978)

● Issue before trial ct was whether the past constitutional violations had been remedied (cruel
and unusual punishment). The court was entitled to consider the severity of those violations in
assessing the constitutionality of the conditions (overcrowding, poor diet, violence, vandalism
etc.).

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 ● In fashioning a remedy, the District Ct has ample authority to go beyond earlier orders and
address each element contributing to the underlying violation. If guilty party fully complied with
earlier orders, they might not have had to do so, but, to reach beyond earlier orders can be
necessary if the guilty party continues to act in bad faith.
● The exercise of discretion is entitled to special deference b/c the trial judge has years of
experience with the problem at hand, and his recognition of the limit of a court's authority in a
complex lit case.
Rehnquist, J., dissenting
● Thinks court went well outside the remedial authority of the federal district cts and doesn't
think dissatisfaction with efforts to remedy thusfar are sufficient to justify further sanctions by a
district ct judge.

Rufo v. Inmates of Suffolk Cty Jail (p. 412)(1992)

● A consent decree is subject to FRCP 60(b) when modifying an order. However, it cannot be read
to ward off any effort to modify consent decrees unless a "showing of grievous wrong evoking
new and unforeseen conditions" is shown by the party asking to modify such an order. Instead,
there is a lot of flexibility.
● Although a district ct can exercise flexibility when considering requests to modify an institutional
reform consent decree, it does NOT mean that a modification is always warranted.
o Rule 60(b)(5) provides that a party may obtain relief from a court order when it is no
longer equitable that the judgment should have a prospective application not when it is
no longer convenient to live with the terms of a consent decree.
o A party seeking modification of a consent decree bears the burden of establishing that a
significant change in circumstances warrants revision of the decree. If the moving party
meets the standard, the court should consider whether the proposed modification is
suitably tailored to the changed circumstances.
● A party seeking to modify may meet its initial burden by showing either a
significant change in factual conditions or in the law.
▪ Modification of a consent decree may be warranted when changed
factual conditions make compliance with the decree substantially more
onerous.
▪ Modification is also appropriate when a decree proves to be
unworkable because of unforeseen obstacles, when enforcement of the
decree without modification would be detrimental to the public
interest.
● This does NOT mean a showing of unforeseen and
unforeseeable is required. But, a modification shouldn't be
granted where a party relies upon events that actually were
anticipated at the time it entered into the decree. Meaning: if
it's clear a party anticipated changing conditions that would
make performance of the decree more onerous, but
nevertheless agreed to the decree, that party would have to
satisfy a heavy burden to convince the court that it agreed t
othe decree in good faith, made reasonable effort to comply w/
the decree & should be relieved of the undertaking under FRCP
60(b)(5)

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 ▪ A consent decree must be modified if, later, one or more of the
obligations placed upon the parties has become impermissible under
federal law. But modification may also be warranted when the statutory
or decisional law has made something previously impermissible legal.
● BUT, a clarification in the law does not automatically trigger
relitigating of the merits of a case, because it would undermine
finality and disincentivize settlement.
● So, while a decision that clarifies the law will not by itself
provide a basis for modifying a decree, it could constitute a
change in circumstance that would support modification if the
parties had based their agreement on a misunderstanding of
the governing law.
● ONCE a moving party has met its burden of establishing either a change in fact
or in law warranting modification, the district court determines whether the
proposed modification is suitably tailored to the changed circumstances.
▪ A modification must not create/perpetuate a constitutional violation
▪ A proposed modification should not strive to rewrite a consent decree
so that it conforms to the constitutional floor, but instead, examine
whether the proposed modification is tailored to resolve the problems
created by the change in circumstance.
▪ A Court should also keep the public interest in mind in ruling on a
modification request based on a change in conditions making it
substantially more onerous to abide by the decree
● Financial constraints cannot be used to justify the
creation/perpetuation of constitutional violations, but they are
a legit concern of government defendants and are appropriately
considered when tailoring a consent decree modification.
O'Connor, J., concurring
● Only wants to emphasize the fact that grievous wrong is the incorrect standard for modification
and that, while, modification does not ALWAYS undermine the purpose of the decree, it doesn't
follow that modification of a single term can NEVER defeat decree's purpose.

Stevens, J., dissenting

● Strong public interest in finality always counsels against modification and this interest is
reinforced when it involves a consent decree that happened due to court policies favoring
settlement of protracted litigation.

Prison Litigation Reform Act 18 USC § 3626 (p. 423)

● Prospective relief shall extend no further than necessary to correct the violations with respect to
prison conditions.
● Court shall give substantial weight to any adverse impact on public safety caused by relief when
certifying the order.

Brown v. Plata (pg. 425) (2011)

● The authority to order release of prisoners as a remedy to cure a systemic violation of the eighth
amendment is a power reserved to a three-judge district court, not a single judge district court
under Prison Litigation Reform Act.

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Issue: Is the 3-judge court order remedying violations of the Cruel and Unusual Punishment clause
bound in the Due Process Clause consistent with the Prison Litigation Reform Act?

Holding: Yes. The PLRA does authorize the relief afforded and this is necessary to remedy the violation
of the prisoners' due process rights.

Reasoning:
1. PLRA doesn't necessarily force prisoner release. There are a number of available remedies
including new prisons or transfer to other facilities/states. HOWEVER, CA did not choose to
enact these remedies, so they turn to other issues.
2. When turning to prisoner reduction, the court must find:
a. Crowding is the primary cause of federal rights violation
b. Relief will extend no further than necessary to correct it
c. Lease intrusive way to correct the violation; AND
d. Must give substantive weight to any adverse impact re: public safety. (The Ct found
they met all 3 and appropriately weighed against adverse impact).

Issue 2: Was the 3-judge panel formed prior to providing the state more time to comply with the prior
orders/injunctions?

Holding: No. The state has had years to address these issues and courts were not required to see if
more recent efforts would work, moving to the 3 judge panel was reasonable in these circumstances.

Issue 3: Prison release not necessary because there are other remedies for relief (transfer out etc).

Holding: The 3 judge order doesn't bar other remedies for relief, HOWEVER, evidence at trial supports
panel's conclusion that no other remedies would provide relief. Mainly b/c CA legislature doesn't want
to spend money to address the issue.

Issue 4: Does possibility that inmates who aren't mentally ill will benefit from this order violate "narrow
tailoring" provision?

Holding: No. Narrow tailoring requires a "fit" btwn remedy's ends and means chosen to accomplish
them. Scope of remedy must be proportional to scope of violation and the order must extend no
further than necessary to remedy. So, that others benefit is OK especially b/c prisoners in gen. pop.
Could be affected and become part of the protected class w/o the remedy.

OF NOTE: IF the state wants to only have an order for the protected class, the state can move for a
modification of the order, so there are remedies available to further narrow, if warranted.

Issue 5: Did the order give substantive weight to public safety?

Holding: Yes. The order doesn't require "no adverse impact" re: public safety, court is required to
consider public safety consequences and structure/monitor its ruling in a way that mitigates
consequences while achieving an effective remedy of the constitutional violation.

Issue 6: The Court approved state's proposed plan w/o considering impact re: public safety.

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Holding: Public safety impact is better measured by officials, so they were right to leave the details of
implementation to the state and not the court.

Issue 7: Was weighing the evidence re: reduction erroneous?

Holding: No. Ct had evidence in favor of more drastic reduction and chose a lesser reduction.

Issue 8: Was the timing irrational to implement the reduction?

Holding: No. State did NOT object to 2 year timeline @ trial, nor have they asked panel to extend, which
they could have. Any continuing equitable decree must remain open to appropriate modification, but
these modifications aren't intended to cast doubt re: basic premise of existing order.

Scalia, J., dissenting

● Believes that the Court affirmed the most "radical injunction" issued by a court in the nation's
history.
● Raises concerns re: the majority opinion as many/most prisoners do not have individual 8th
Amendment claims and, instead, a finding for the prisoners here is contrary to the bedrock rule
that the sole purpose of class wide adjudication is to aggregate claims that are individually
viable.
● The three-judge district court’s order violates the terms of the PLRA, ignores limitations on the
power of Article III judges, and takes federal courts beyond their institutional capacity.
Additionally, the theory of a class of plaintiffs having suffered an Eighth Amendment violation is
contrary to the bedrock rule that an individual alone must have suffered the violation. If
plaintiffs do claim they individually suffered a violation and merely aggregated the claims, the
theory is not supported by case law.

Class 10 – Arbitration & Preclusive Effect of

Arbitration/Discovery

Class Notes
Theme of the day: analysis -- essentially we are reading at materials to get at the law and one way to
approach this task is through reading comprehension (understanding the cases and what they say) and
then figure out what's going on and, as a result I've developed this knowledge and this is how a new
case will be decided if it comes up. He reads all the cases and develops an analytic scheme and puts
them together in a way that will allow you to deal with a case if it comes up.
● One case putting up one criteria, another putting up a different thing etc.
o In the end: no court dissects what's going on and reformulating, but you can say "well
there are 3 matters you can turn to --> if they all come out the same way this is how this
should go, but if they don't… then you have to kind of analyze it."
● Next week: reading Scalia's dissent to discovery amendments to the rule
o In the beginning of the semester we saw part of Scalia's opinion, but he'd left off the
portion about discovery amendment. When you read it, you'll see the link to the
discussion at the beginning.

Plata:

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 ● Kennedy for majority - deferring to the courts below (in light of their experience) was justified &
warning at the end to the forum below is you must remain open to modification due to the
nature of the beast.
● Bitter dissents --> court below went too far.
o Courts of appeal should review
o Likely to go on and move forward.
o In the future: a position of skepticism about litigation in an area where federalism plays
a role
● Often used against state officials, but not always
● When federal employees are used, don't have additional element

Ideological point when he was in law school was for the sake of justice, we should keep things in the
courts and maintain arbitration as a limited thing
● Most would say this isn't realistic, most things aren't decided through trial anyway
● Collective litigation -- it's alleged by certain parties to move cases from the courts to arbitration,
a way of individualizing the case
● When you think about how these things should be dealt with, one says flexible forum
(arbitration) other says court.
o Criticism of flexible/arbitration --> by doing that, you deprive people of the ability to act
collectively
● With arbitration, don't fear 23b3 class action, because it eliminates collective
action and makes things more individualized
● 23b2 --> more structured than a 23b3 claim in his view, so less of a fear here for
businesses
o BUT! Businesses don't like uncertainty and they feel that arbitration is more certain b/c
they handle claims individually.
● With class action, no idea what the cost would be at the end.

From his bracketing in the book:

[I] - issue
[F] - facts
[P] - Procedures
[R] - Reasoning

Alexander v. Gardner-Denver
● Arbitration does not foreclosure an individual's right to sue or divests federal courts of jx
● He thinks this is statutory interpretation (wat.) -> how should we interpret title VII (do they have
standing to challenge it if they went through arbitration; parallel proceedings; interpretive
license
● Ultimately thinks this is about how Title VII claims should be decided
o Standing requirements etc. "can't include that the P may not have engaged in
arbitration b/c it's not in the statute"
● Claim preclusion --> can't argue what was decided but what you could have brought and did not
bring
● Issue preclusion --> narrow, only what was decided

Gilmer
● P bears burden of showing that congress wanted to preclude arbitration

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 ● Narrows Gardner-Denver significantly to specific statutes (like Title VII)
● Favors arbitration

Wright
● Clear and unmistakable standard has to be shown/apply when a union waives statutory rights
for members

Court is producing a lot of law re: arbitration, but making it easier to waive individual rights to sue via
arbitration

Circuit City
● Arbitration is good and it should extend to employment
● Two dissents re: statutory interpretation

Arbitration is not as favorable as discovery

Hickman
● Work product of the lawyer is presumptively not discoverable

Discovery & class actions are prominently in the rules and are one of the major developments of the last
50 years in civpro.

Case Notes
Alexander v. Gardner-Denver (p. 457) (1974)
● In short, arbitration agreements do not have preclusive effect on violations of Title VII. There is
also no deferral rule that would permit courts to defer to arbitration decisions on Title VII
violations.
● Federal courts have plenary power to secure compliance with Title VII of the civil rights act
(equal opportunity), so they have the power, under the Act to issue injuntive relief and to order
such affirmative actin as may be appropriate to remedy the effects of unlawful employment
practices. They have these powers even the the commission itself finds no reasonable cause to
believe that the Act was violated.
o Under Title VII, private rights of action exist to redress their own injury but also
vindicates the important policy against discriminatory practices.
● Nothing in the statute that says a prior arbitral decision either forecloses an individuals right to
sue or divests fed courts of jx.
● Legislative enactments in this area have also evinced a general intent to accord parallel or
overlapping remedies against discrimination. And, in general, submission of a claim to one
forum does not preclude a later submission to another.
● Election of remedies --> A doctrine of estoppel that provides a party who has two co-existing but
inconsistent remedies and elects to pursue one remedy to a conclusion may not sue for the
other remedy.
o BUT, does not apply with a title VII and a contract violation claim, instead, these are
complimentary and election of remedies does not apply. (I miss Lahav.)
● Moreover, Title VII rights can’t be waived, so submission to arbitration for their employment
grievance does not negate rights under Title VII because existing contractiual rights and

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 remedies against discrim must result from other concessions already made by the union as part
of the economic bargain struck with the employer.
● A contractual right to submit a claim to arbitration is not displaced simply because Congress
ALSO has provided a statutory right against discrimination.
● Arbitration is well suited to resolve contractual disputes, but not appropriate for final resolution
of statutory and constitutional issues, which are best served by courts.
● Fact finding in arbitration is usually not equivalent to judicial factfinding.

Gilmer v. Interstate/Johnson Lane Corp. (p. 462) (1991) <-- narrows Gardner-
Denver
● Age Discrimination can be arbitrated and gives preclusive effect to judicial decisions.
● Federal Arbitration Act was meant to reverse hostility to arbitration and it's clear that statutory
claims maty be subject of an arbitration agreement enforceable pursuant to the FAA.
● Burden is on the person trying to get out of mandatory arbitration agreement in a contract is to
show that Congress intended to preclude a waiver of arbitration as a forum for a statutory right
(in this case: Age Discrimination in Employment Act). If this exists, it will be discoverable in the
text of the statute/its legislative history/an "inherent conflict" between arbitration and the
statute's purpose.
● The mere involvement of an administrative agency in the enforcement of a statute is not
sufficient to preclude arbitration.
● Arbitration is consistent with congress' grant of concurrent jx over age discrim claims because
the language says "any court of competent jx" (which means… expanded to include arbitration.
● Arbitrators aren't bound by evidence, but have less discovery, arbitrators do have the power to
fashion equitable relief and an arbitration award here does not preclude the EEOC from bringing
actions seeking class-wide/equitable relief.
● Mere inequality in bargaining power, by itself, is not a sufficient reason to hold arbitration
agreements are never enforceable in the employment context. Instead FAA says that arbitration
agreements are enforceable except when specified by law or in equity for the revocation of a
contract.
Stevens, J., dissenting
● This Court ignores compelling evidence suggesting that employment contracts are explicitly
excluded from coverage under the FAA, and as such Interstate may not force Gilmer to arbitrate
his ADEA claims. Furthermore, because arbitration cannot offer class-wide injunctive relief the
way that a court can, there is a strong argument to be made that arbitration is an inappropriate
forum for ADEA and Title VII claims.

Wright v. Universal Maritime Service (p. 468) (1998)

● A statutory claim is not subject to a presumption of arbitrability, but instead, any Collective
Bargaining Agreement that mandates arbitration of that statutory claim must adhere to a "clear
and unmistakable" standard to show a waiver existed.
● Gardner-Denver at least stands for the proposition that the right to a federal judicial forum is of
sufficient importance to be protected against less-than-explicit union waiver in a CBA.
● A canon of construction which would in any event have been applied to the CBA--that an
agreement should be interpreted in such a fashion as to preserve, rather than destroy, its
validity (ut res magis valeat quam pereat).

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Green Tree Financial v. Randolph (p. 472) (2000)
● Section 16(a)(3) of the FAA preserves immediate appeal of any final decision re: arbitration,
regardless of whether the decision is favorable or hostile to arbitration. So, when a district court
ordered the parties to proceed to arbitration and dismissed all the claims before it, that decision
is "final" within the statute and therefore appealable.
● To determine wthether statutory claims may be arbitrated, court asks:
o Whether the parties agreed to submit their claims to arbitration, and
o Whether Congress has evinced an intention to preclude a waiver of judicial remedies for
the statutory rights
● Arbitration costs cannot render arbitration enforcement unenforceable without more. Instead,
when a party seeks to invalidate an arbitration agreement on the ground that arbitration would
be prohibitively expensive, that party bears the burden of showing the likelihood of incurring
these costs.
Ginsburg, J., concurring/dissenting
● Would not rule definitively on costs in this case, but instead vacate and vacate the 11th Cir. and
remand for closer consideration.
● Doesn't believe that the party resisting arbitration not only must show that (1) the forum is
adequate to adjudicate their claims but also (2) that the forum would be financially inaccessible
to them.

Circuit City v. Adams (p. 477) (2001)

● FAA extends to all types of employment contracts not expressly named by statute (aka:
transportation workers) under ejusdem generis, which in the statutory construction world
means that where general words follow specific words in statutory enumeration, the general
words are construed to embrace only object similar in nature to those object enumerated by the
preceding specific words.
● Courts reject supposition that advantages of the arbitration process somehow disappear when
transferred to the employment context. Arbitration agreements allow parties to avoid the costs
of litigation, a benefit that may be of particular importance in employment lit, for example.
Stevens, J., dissenting
● Legislative history rejects notion that the FAA applied to employment agreements
● Calls the use of ejusdem generis deliberately uninformed in this case.
Souter, J., dissenting
● In Allied-Bruce, the Court held that the FAA’s coverage, described in § 2 with the phrase
“involving commerce,” was coextensive with the reach of the Commerce Clause. The Commerce
Clause had expanded significantly between the time the FAA was enacted in 1925 and
the Allied-Bruce decision in 1995. Our interpretation of “involving commerce” allowed the
coverage of the FAA to grow in step with the growth of the Commerce Clause. The exemption in
§ 1 of the employment contracts for workers “engaged . . . in commerce” is language similarly
elastic to the phrase “involving commerce.” It is incoherent for the majority to limit the FAA’s §
1 exemptions to their meaning from 1925 but expand the FAA’s § 2 coverage to mirror the
growth of the Commerce Clause. Additionally, the majority has misapplied ejusdem generis.
Congress had already carefully fitted the FAA to the special circumstances of seamen and
railroad workers. Section 1 lists seamen and railroad employees in order to emphasize and make
certain that they will not be subjected to arbitration clauses.

98
Hickman v. Taylor (p. 487) (1947)
● Under rules of discovery, opposing counsel must demonstrate necessity, justification, or undue
prejudice for access to counsel’s work product (written statements, private memoranda, and
personal recollections).
o This is disfavored, because it allows for opposing counsel to get a glimpse into the
attorney's mindset and can negatively impact that attorney. It is a general policy against
invading the privacy of the aty's course of preparation for trial and the burden rests on
the one who would invade this privacy to justify production of this information through
subpoena/court order.
● Where relevant and non-privileged facts remain hidden in an atty's file and where production of
those facts is essential to the preparation of the case, discovery is proper. But this does not
extend, normally, into work product (including transcriptions of conversations with witnesses).
o If incorrect, this information can be used to impeach the atty/their witnesses.
Jackson, J., concurring
● FRCP shouldn't be read literally, but in the context of practice and custom which was assumed
by those who wrote the rules.
● The Federal Rules of Civil Procedure should not be manipulated to advance unsure or
unprepared attorneys and disadvantage attorneys who exhaustively prepare their cases.
Lawsuits are structured as adversarial proceedings and attorneys must be protected from
discovery demands that curtail competitive edges. Hickman’s attorney’s request for opposing
counsel’s work product to double check his own work is inconsistent with the judicial process.

FRCP 26 (Discovery) (p. 496)

The fundamental problem with discovery is to know what to ask

Standard for Discovery

● Relevant to the claim/defense
● Proportional to the needs of the case
o Can be in terms of money or in terms of the rights at stake

Arguments Against Discovery

● Not relevant
● Not proportional
o Done a lot in electronic discovery; will cost $$$$ to produce the requested information,
but value of lawsuit is only $.
● FRCP 26(b)2(C)
● Objections
o Disproportionate
o Duplicative
o Available elsewhere
o Had ample opportunity to obtain requested information & didn't act on it
o Burdensome
o Irrelevant
o Overbroad
● Privileged Information
o Attorney-Client Privilege
● Only covers communication between attorney and client

99
 ● Any comms to a 3rd party are not privileged
▪ CC'ing 3rd party means communication, no longer privileged
▪ If you talk about a case with someone else, no longer privileged
o Attorney work product [FRCP 26(b)(3)]
● Materials collected in the course of preparing litigation (e.g. interviews that
were part of lawyer's preliminary investigation)

Discovery is principally about gathering sufficient evidence to (p. 423):

1. Leverage a favorable settlement
2. Survive a summary judgment motion - which, from the plaintiff's perspective, requires prima
facie evidence from which a reasonable fact finder could find in their favor
Federal Rules:
FRCP 26 (especially b): Duty to Disclose; General Provisions Governing Discovery
+Need to pre-introduce witnesses and evidence that you plan to use
● FRCP 26(b)(1) - Scope of discovery
Anything can be obtained that is:
o Non-privileged
o Relevant to any party's claim or defense
● Need to argue
o Proportional to the needs of the case
● Need to argue -- this is the bigger of the 2 points to argue
● FRCP 26(b)2(C) - objections to discovery
FRCP 27-35: Different Discovery Methods Available (if Q for that on Exam)
FRCP 37: Sanctions for Failure to Make Disclosures/Cooperate in Discovery

Class 11 – Discovery cont’d/Notice Pleading

Class Notes
Hickman
● Material that is relevant (to the parties/claim)
● Other materials, which although they bare relevance are limited by other means (prep etc.) --
would inevitably include atty's inference and take the stand (protections for mental impression
of the attorney).
● If you want this thing -- demonstration of need
o If court rules on this…
● Initial burden on discoverer to not interfere with the mental impressions of the
attorney.
● If you pack everything with mental impression to keep it confidential, judge has
to determine when this has gone too far/acting in bad faith
● Conclusion of all this: Ps haven't shown good cause for the acquisition/request of materials in
question.

Anti-corruption doctrine - many of the actions labeled corrupt abroad don't differ much from perfectly
legal activities in the US.

Upjohn v. US

100
 ● Doesn't like the test of the circuit court
● A broad analysis of atty client privilege and work product.
o Need to know what will be privileged, need to be able to talk to the lower level
employees, marked it as confidential.
o By preserving confidentiality of documents, you can get the work done.
o Atty-client privilege benefit from absolute protection
● Need a showing in the first place to get the materials
● Transcripts can be argued in course of business or in the way to prep for litigation.

Work product --> substantial need (showing) --> well, we have all these mental impressions b/c they're
embedded and you can depose --> but then they depose & plead the 5th --> but then they become
UNAVAILABLE so they now need it.

UPJOHN ---> mostly about atty client privilege (to apply, an atty has to be involved)

Work product v. atty-client privilege and how they function are different.

When you are forced to hand it over, you can ask to take out mental impressions.

Assume you have someone who feels they have been discriminated against, but how do you do this
without discovery? So, no right to tell people to hand over information, you can't present a notice
pleading anymore b/c of TWIQBAL. So, what do you do? (this is international law)
● Try to get as much information on your own as you can --> interview employees (but possibly
not as helpful as discovery)
● A lot of the further exploration will be at trial
o But not a real trial like in US --> meetings w/ judge. And in many of these, the judge
leads/has to interrogate the witnesses etc.
● Burger concurrence -- want a standard to be laid down, which he explains

1980 Dissent to rules

● Powell/Stewart -- the amendments don't go far enough to address the problem; May bring
some improvement, but not enough, but could postpone effective reform for another decade.
● Discovery takes too long in complex lit

1993 Dissent to rules

● Proposals increase litigation & burden courts
● Because they have duty to disclose relevant info --> lit on what is relevant
o Burden to produce anything that is relevant
● Rule has been criticized, but it's still being adopted

R26 --> defines scope of discovery

FRCP 26(a)(1)(E)-- initial disclosures, any expert witness it may use at trial & in case of expert need a
report

Discovery --> at some point, people are going to know what you're doing.

"I find it fascinating to compare the state and federal system."

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NHL v. MHC
● Case is dismissed with prejudice for failure to answer interrogatories in a timely manner.
● A little background on how to handle allegation of abuse by lower courts

Cheney v. DDC (would this even have gotten this far post-IQBAL??????? Probably not in my opinion.)
● Consolidated actions for failure to comply with federal accountability act
● Tightly reined discovery is what you're going to get, but the government files a motion for cert
under 1292b (aka: interlocutory appeal)
● Special considerations control when exec branch interests in maintaining the autonomy of its
office and safeguarding the confidentiality of its communications are implicated
● Civil parties don't face checks that are the same as criminal parties and don't face the same
amount of scrutiny, so we need to be more worried here vs. in Nixon
● Stephens concurrence: in this case you have separation of powers problems and the court
should have required Ps to show that the request would establish their theory of the case
● Ginsburg dissent: The gvt could have asked for a number of things to reduce the scope of
discovery, but instead asked for compelling of no discovery. You can't do this without first
exhausting other attempts at limiting discovery.
o It is the gvt that is trying to win the case before going to trial. Because if no discovery,
then no case. The gvt is going to have to take another position b/c no discovery, then no
case.
o Need to identify what it actually objects to/offer judge more re: what they want.
o The majority is not saying what it's saying --> not buying this no discovery bs, but what
needs to happen is there has to be a discussion of how to tailor discovery
● He thinks she's telegraphing to the lower court to reject no discovery provision
and telling them how to do that in a way that is consistent with the opinion
here.
o To Cheney: You say to the ct what you can/will/must deliver and then the court says
whether he's right or wrong. He, by himself, can't say no.
● Thomas dissent: mandamus should have been denied because the Sierra Club etc had to
demonstrate in DDC a clear and indisputable right to the Federal Advisory Committee Act
materials.

Conley v. Gibson
● Class suit brought in FDC against union
● Case can go forward because…
o In appraising the sufficiency of the complaint, the court follows the accepted rule that a
complaint should not be dismissed for failure to state a claim unless it appears beyond
doubt that the P can prove no set of facts in support of his claim which would entitle
him to relief.
o Jx is proper b/c the adjustment board has no power under any provision of the Act to
protect them from allegations of violations of a statutory right to be unfairly
discriminated against
o All the rules require under FRCP is a short and plain statement of the claim that will give
the D fair notice of what the Ps claim is and the grounds upon which it rests.
● Such simplified notice pleading is made possible by the liberal opportunity for
discovery and the other pretrial procedures established by the rules.
● Notice Pleading standard case.

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How to prep for final:
● Sample questions
● A part that is going to be multiple choice (5 choices for each q), 20 of that sort.
● A discussion question that will include a hypothetical that's very brief and any facts you don't
have, you can say you assume them.
● With this discussion q, you are going to have 10 specific qs about the hypo and he recommends
that we number our answers to those short questions.
● Essentially the exam is about what the course is about, nothing outside of what we have and
what we've been discussing.
● He has not written a book on taking exams, but recommends spending a few minutes thinking
before writing your exam. Looking for a reasonable answer to the questions posed; read the
whole thing. Don't be all over the place b/c it's hard to give all the points on it.
● Wants something well thought out and argued coherently. It's easier to give full credit for that.
● Not just an issue spotter --> is your answer coherent.
● Write in the way you speak in class.

Will bring questions to class next week.

Case Notes
Advisory Committee Notes re: Amendments to Discovery Rules (p. 500)
(1970)
Advisory Committee Notes re: Amendments to Discovery Rules (p. 502)
(1993)
Advisory Committee Notes re: Amendments to Discovery Rules (p. 507)
(2000)
Advisory Committee Notes re: Amendments to Discovery Rules (p. 507)
(2006)
Advisory Committee Notes re: Amendments to Discovery Rules (p. 512)
(2007)
FRCP 34 & Advisory Committee Notes - Electronic Discovery (p. 513)
● A party may serve a request within the scope of Rule 26(b) re: electronic documents.
● Nonparties may be compelled to produce documents/permit inspection as specified in FRCP 45

Upjohn v. United States (p. 516) (1981)

● Declined to lay down a broad rule re: discovery, but held that the atty-client privilege protects
communications involved in this case from compelled discovery & work product doctrine applies
in tax summons enforcement proceedings.
● Work product that falls within the scope of atty-client privilege and/or reveal the atty's mental
processes in evaluating communications cannot be disclosed on a showing of substantial need
and inability to obtain the equivalent info without undue hardship.
● INSTEAD: need to show necessity and unavailability by other means to compel disclosure.
Burger, J., concurring
● Thinks that the court should articulate a standard in these cases and that as a general rule,
communication is privileged at least when, as here, an employee/former employee speaks at

103
 the direction of the management with an aty re: conduct or proposed conduct within the scope
of employment.

FRCP 26 & Advisory Committee Notes (p. 521)

● Signing of disclosure requests and that they certify to it and can be sanctioned if they sign
something if they certify incorrectly.

1980 Amendments to FRCP re: Discovery Rules (p. 527)

● Powell, J., dissenting
o Amendments do not go far enough to accomplish civil litigation reforms and do not
incorporate all reforms proposed by the Am. Bar Ass'n re: stopping the exploitation of
these rules re: discovery and instead are modest improvements that do not fully address
delay and expensive discovery.

1993 Amendments to FRCP re: Discovery Rules (p. 529)

● Changes here will increase litigation costs, burden courts, and reform courts.
● Does not like the continuous duty to disclose various information re: disputed facts without first
receiving a request to do so
● A lot of people criticized these changes and they did them anyway

FRCP 37 (Failure to Disclose) (p. 531)

● On notice to other parties affected, a party must compel discovery and include cert that they
conferred in good faith with party failing to make disclosure.
● If motion is granted, the party who caused the motion to be filed must pay fees associated with
the cost, but if denied, movant has to pay.

NHL v. Metropolitan Hockey Club (p. 532) (1976)

● Under Rule 37 of the Federal Rules of Civil Procedure, a court may dismiss a complaint because
the plaintiff failed to respond to a discovery order in bad faith.
● Rule 37 of the Federal Rules of Civil Procedure lists the sanctions available for a court to impose
on a party that is not compliant with discovery orders. A court may: (1) strike pleadings in part
or in whole, (2) stay proceedings until compliance, or (3) dismiss the action in part or in whole.
Dismissal should be reserved for situations in which the party’s failure to comply was due to
willfulness, bad faith, or the party’s own fault.
● Appellate review of District Ct's action is not what they would have done in this situation, but,
instead, whether the district ct abused their discretion under the FRCP.

Cheney v. US District Ct for District of Columbia (p. 534)

● A court can issue a writ of mandamus denying civil discovery of presidential advisory materials
created by federal officials within the president’s close operational sphere without first requiring
that the officials assert executive privilege.
● While a writ of mandamus is an extraordinary remedy, its conditions are not insurmountable.
Those conditions are: (1) that the petitioner have no other adequate means of achieving relief,
(2) that the petitioner show clearly and indisputably why issuance of the writ is warranted, and
(3) that the court, in its discretion, be convinced that the writ is appropriate.
● Broad orders of discovery are inappropriate when they implicate the executive and this is
distinguishable from Nixon because Nixon was a criminal, not civil, case.
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Stevens, J., concurring
● Granting broad discovery here would prejudge the merits of the claim for mandamus relief,
which is inconsistent with the extraordinary nature of the write. Instead, District Ct should have
required respondents to demonstrate that particular requests would tend to establish their
theory of the case.
Ginsburg, J., dissenting
● Given gvt's decision to resist all discovery, mandamus relief is premature and would deny the
writ and allow district ct to instead tightly rein in discovery.
Thomas, J., concurring/dissenting
● Because they proceeded by mandamus, parties had to show that the they had a clear and
indisputable right to privileged materials. If they did not show this, mandamus relief was clear.

FRCP 12 - Dismissal (p. 534)

FRCP 12b Defenses Made by Motion:
1. Subject Matter Jurisdiction*
2. Personal Jurisdiction
3. Improper Venue
4. Insufficiency of Process
o meaning: something is missing from what was given to the party
5. Insufficient service of process
o meaning: served the wrong person
6. Failure to state a claim*
7. Failure to join a required party*
o required parties -- FRCP 19 (joinder section of outline)
* Do not need to be brought immediately to avoid being waived
**All motions that will be brought ( in 2-5) must come at the same time or they are waived

Conley v. Gibson p. 544 (1957) (NOTE: THIS HAS BEEN RETIRED BY TWIQBAL)

Specific Case Issue: Is an allegation of discrimination an adequate basis for a claim when a contract was
negotiated that "appears fair on its face" and survive a 12b6 motion to dismiss?

Holding: Yes. A complaint should not be dismissed for failure to state a claim unless it appears beyond a
reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle
him to relief. (THIS LINE HAS SINCE BEEN RETIRED PER ADL).

MAIN issue: Are specific facts required in order to support general allegations of a claim?

Holding: No. FRCP do not require a claimant to set out, in detail, the facts upon which a claim is based.
"Only a short and plain statement of the claim" that will give the defendant fair notice of P's claim and
the basis/grounds upon which it rests is required by the FRCP
● This is the basis of notice pleading

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Class 12 – Plausibility Pleadings/Complaints/Answers/Jury
Right
Class Notes
ADL Notes re: Complaints/Pleadings
TIMELINE 🡪 Day 1 (P) files complaint under 8(a) 🡪 (D) Has 2 Options: 1. (D) may present a 12(b) defense as a
pre-answer motion. Within 21 days, must either answer pleading or make the 12(b) motion. 2. (D) may waive
service of process under 12(a)(1)(a) (60 days after filing was done). Day 21 (D) must answer. Day 60 (D) must
waive service.
Uncertainty in the courts among judges/lawyers about what these decisions are supposed to mean & what
Rule 8 is supposed to mean
● Rule 8 still says short & plain statement of relief
● Clearly means something different under Iqbal than under prior decisions
● In terms of future interpretation - more of a problem
● Neither approach has gotten far enough to decide which should be implemented
In a complaint, a lawyer needs to ask:
● Have I stated a cause of action?
● Have I given enough facts that state a cause of action that a judge will think is plausible?
● Does my complaint allege facts that meet the standard of the crime alleged?
● Need to look at FRCP 8(d)
o A party may state 2 statements hypothetically, but if the claim has requirements and
you don't meet them, the claim is not a cause of action.
Most impt rule re: pleadings/complaint is FRCP 8
● FRCP 8(a): Claim for Relief
● FRCP 8(a)(2): Must be greater than notice pleading, and instead be plausible on its face to
survive a motion to dismiss.
o A judge determines plausibility based on experience and common sense
o whether an allegation is conclusory is in the eye of the beholder.
Hierarchy re: Facts --> Conclusion
1. Evidence - can be introduced at trial under the rules of evidence
2. Facts - may or may not be able to be introduced at trial
3. Inferences - bridge between two facts and "circumstantial evidence"
4. Speculation - not enough to be inferences/can't build a bridge between two things
5. Conclusions - Statements of law without facts (can't be used to support plausibility pleading)
FRCP 9(b): Pleading Fraud or Mistake
o at times, this can be used to combat questions re: plausibility because malice, intent, knowledge
and other conditions of someone's mind (e.g. discrimination) can be pled "generally"
ADL Notes re: Answers
Answers
● Answers-- contain the following parts:
a. Admissions/denials
b. Defenses
c. Affirmative defenses
d. Counterclaims/cross-claims (309)
● Rule 8 requires a party to admit/deny allegations alleged by the other party
a. If a defendant admits to something, they do not have to prove it at trial
b. Cannot blanket deny things that are true, because then a judge can admit them as true
(n.b. this rarely happens)

106
 ● They will need to do research in order to Answer
a. This is often costly, which is why defendants first try to dismiss the case under Rule 12b
● In general, the rules tell a defendant how long they have to answer and a good lawyer checks
the rules before they answer
● If you DO NOT ANSWER --> you lose
Rule defines a timeline 🡪 Day 1 is when the (P) files the complaint 🡪 (D) must answer w/ in 21 days of
being served either by (1) pre-answer motion or (2) answer
Pre-Answer Motions 🡪 Clock stops ticking 🡪 Less expensive option (try this route first & avoid research)
Rule 12 (b): Motion to dismiss 🡪 Defenses (To be used for all claims, including cross and counter)
● “Not Here” (this is not the proper place / right time for this action)
● (1) No subject matter jurisdiction?
● (2) No personal jurisdiction?
● (3) Improper venue? (Applies in states w/ multiple districts)
● (4) Insufficient process? (i.e. Documents not properly prepared)
● (5) Insufficient service of process? (i.e. Did not follow Rule 4 or Rule 5)
● “So What”
● (6) Failure to state a claim upon which relief can be granted
● “What are you saying”
● (7) Failure to join a party under Rule 9 (case can be dismissed if impossible to join)
Rule 12 (e): seeking more information
The Answer 🡪Rule 8(b) 🡪 Defenses(Including Motions, counter/cross claims, and 8(c) Affirmative
Defenses); Admissions & Denials (or lacks information sufficient to form a belief about truth of allegations)
🡪 Must respond to allegations in the complaint 🡪 Give info necessary under the scope of the claims that the
(P) has made 🡪 If you do not respond, it will be determined that the allegation is correct (since you have not
made an issue of it)

-Affirmative Defenses: Even if you can prove your cause of action, I will still win because of some other
doctrine (8(C), also waived if not brought immediately)
ADL Notes re: Jury Right
When does a Jury Right Attach?
● 7th Amendment only attaches @ cases in law
o Interpreted as: If cases had a jury in 1789, you have the right to a jury trial today
o Not mandatory, right to a jury can always be waived
● Test:
o If you're asking for $$ damages => Jury right (court of LAW)
o If you're asking for an injunction => no jury (court of equity)
ADL Notes re: Summary Judgment
In a motion to dismiss, you take all allegations as true to determine if no jury would find for the party
● May be at trial that you can show some allegations aren't true, but for the motion to dismiss
assume it's true
● If it survives, doesn't mean the party will win at trial b/c evidence can be presented
● In general, plaintiff doesn't bring summary judgment b/c they have the burden of proof at trial
● If a defendant wants to poke a hole in P's case, it's much easier to win on summary judgment.

When arguing for/combatting a motion for summary judgment

● Can't use inadmissible evidence in supporting/combatting a motion for summary judgment
[FRCP 56(c)(2)]
● Affidavits must be based on PERSONAL knowledge (no hearsay), set out facts admissible as
evidence and show affiant/declarant is competent to testify [FRCP 56(c)(4)

107
 ● Must have an issue of material fact that can be argued at trial to survive a motion for
summary judgment

Two forms of summary judgment motions

● Fight over the facts in the dispute
o Is the plaintiff going to win at trial?
● Not many facts in dispute, but a question of law that needs to be decided to see if the case can
go forward

Under FRCP 56(a), summary judgment can be entered on part of a claim/defense (partial summary
judgment)

Oquendo
Exam:
● Sample questions
● Wants us to think about the questions (especially the hypo) before writing
o Take 15 min to think about the questions
o Be graded on the exam & what you write

Agrees that Iqbal changes the law importantly but doesn't think that the case pushes the US
generally/federal law away from the notice pleading model (US is still in this paradigm, but has moved
closer to the alternative, but not all the way). He'd venture to say that if you look at systems where you
don't have notice pleading, but the alternative model (fact pleading), then you see that those jx lies
miles away from this even after Iqbal.

Conley v. Gibson
● Granted cert to essentially determine if they had their day in court
● Railroad is not an indispensable party b/c rights not affected and no relief expected
● Identical to the previous case, you're in, but if it's not identical we will ignore it

Ashcroft v. Iqbal
● Tightens the screws on notice pleading
● Can't just "have a hunch" you have to exercise your imagination/be plausible
● Must PLEAD enough facts to draw an inference that is plausible (eventually must prove intent)
● Must plead what you must prove so that a reasonable inference can be drawn to what you are
pleading and the allegation must be plausible.
o Allegation must be inferential and that the element that must be proven actually lies
o Allegation must also be plausible
● Dissent of Souter is more about a dissent of the underlying substantive law than the procedure.
Eliminates supervisory liability under Bivens in the majority opinion, which he thinks is messed
up.
● Must allege particularized facts but intent can be alleged generally
● Can't cabin off discovery for certain parties while litigation continues for other parties. So, you
can dismiss now b/c of sovereign immunity
● Language re: Rule 9 on p. 554

Adickes v. Kress

108
 ● For SJ, you don't have to make your case in full like in trial
● If P brings complaint, and D wants MSJ, then D has to bear burden of persuasion, but D doesn't
have the burden of production.
● It suffices to say that something is lacking in the allegations
● Inspire you to be more flexible at the pleading stage, because if you don't get a dismissal here,
you might have to go through trial, but that's not totally true, b/c you'll probably have to go
through summary judgment

Lovely v. Eggleston
● With no admission of liability, ruling on damages in summary judgment is improper.

US v. Will
● Think about what conflict of interest means and the way we resolve ordinary cases v. this special
kind of case

Case Notes
Ashcroft v. Iqbal (p. 546) (2009)
I: Can SCOTUS address questions of whether Subject Matter Jx is proper even though lower cts did not
address issue?
H: Yes. Subject Matter Jx can't be forfeited or waived and should be considered when fairly in doubt.

I: Does appellate ct have SJx to review a denial of a motion to dismiss when it involves a prejudgment
order?
H: Yes, but it is LIMITED and falls into an exception. Outside these limited exceptions, Congress has
vested cts of appeal with jx of appeal of all final decisions by district cts.
HOWEVER, finality requirement doesn't prevent review of all prejudgment orders. Under collateral
order doctrine, a limited set of district ct orders are reviewable short of final judgment. These orders are
immediately appealable because they finally determine claims of right separable from, and collateral to
rights asserted in the action that are too important to be denied review and too independent of the
cause of action itself to require appellate consideration be deferred until the case is adjudicated.

I: Can a district court's decision denying qualified immunity fall into collateral-order doctrine exceptions?
H: Yes, while the collateral-order doctrine may have expanded beyond its internal logic, the applicability
of the doctrine in the context of qualified immunity claims is well-established and the court has been
careful to say that a district court's order rejecting qualified immunity at the motion to dismiss stage of a
proceeding is a final decision within the meaning of 28 U.S.C. § 1291.
● GENERALLY: an order that turns on an issue of law is a final decision subject to immediate
appeal.
● Bivens, based on a theory that a right deserves a remedy, recognized an implied private action
for damages against federal officers alleged to have violated a citizen's constitutional rights. BUT
implied causes of action are disfavored, so the Court has been reluctant to extend Bivens liability
to any new context or category of defendants.
o While Ct has allowed a Bivens action to address a violation of equal protection
component of 5th amendment's DPC, hasn't found an implied damages remedy under
free exercise clause (NOTE: Ct doesn't RULE on this here, just observes this factoid.)

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 ● No respondeat superior liability/vicarious liability under Bivens / § 1983, so a P
must plead that each government official D through their OWN actions violated
the constitution.
● Claiming a Bivens Action
o Varies depending on the constitutional provision at issue
o When the claim is invidious discrimination in contravention of the 1st & 5th
Amendments, P has to plead and prove that the D acted with a discriminatory purpose.
o To state a claim on a violation of a clearly established right P must plead sufficient
factual matter to show that D adopted and implemented policies at issue for a
discriminatory purpose and not a neutral investigative reason
o Every government official is only liable for their own misconduct.
o To determine whether a violation of a clearly established right overcomes qualified
immunity, purpose rather than knowledge is required to impose Bivens liability
regardless of whether government official is a subordinate or supervisor.
● Iqbal Complaint Standard
o FRCP 8(a)(2) requires a pleading contains a short and plain statement showing that
pleader is entitled to relief
o Under Twombly the standard doesn't require detailed factual allegations, but demands
more than an unadorned "the D harmed me" accusation and a pleading that has naked
assertions, a recitation of cause of action and/or labels and conclusions isn't enough.
o To survive a motion to dismiss, complaint must contain sufficient factual matter,
accepted as true, to state a claim for relief that's plausible on its face.
o Claim has factual plausibility when P pleads sufficient factual matter that allows court to
draw reasonable inference that D is liable for alleged misconduct.
● Can't cabin off discovery/allow discovery if the pleading is insufficient. The pleading needs to be
plausible, first, as a threshold inquiry.
● FRCP doesn't require courts to credit a complaint's conclusory statements without reference to
factual context.
● While FRCP 9 allows malice, knowledge & other mental states to be alleged generally, this only
excuses a party from pleading discriminatory intent under elevated pleading standard. It doesn't
allow for evasion of FRCP 8 requirement, which doesn't permit bare elements of a cause of
action to be pleaded/affix general allegation and survive a motion to dismiss.

Older Civ Pro Case Notes that are relevant as well:

Issue: Does Twombly apply to pleadings beyond those in an antitrust (Twombly) suit?
Holding: Yes. Iqbal states that the Twombly standard applies to all civil action.

Issue: Does the Twombly standard re: FRCP 8 (general rules of pleading) lessen when a court has limited
discovery (e.g. qualified immunity)?
Holding: No. A motion dismiss a complaint for insufficient pleadings doesn't hinge upon discovery
process limitations.

Issue: Does the "generally" provision re: pleadings of a person's mindset (intent etc.) under FRCP 9b
allow for conclusory pleadings?
Holding: No. FRCP doesn't require courts to credit conclusory statements without reference to factual
context. FRCP 9b only excuses a party from pleading discriminatory intent under an elevated pleading
standard.

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Souter, J., dissenting
● Takes issue with the rjection of supervisory liability when it comes with the concession from the
government that they could be held liable outside respondeat superior, so doesn't like that
Iqbal narrows bivins here.
o Especially a problem b/c Ct does not generally override a party's concession, especially
when this concession is not necessary to decide the case.
● Interprets Twombly more narrowly:
o Twombly does not require a court at the motion-to-dismiss stage to consider whether
the factual allegations are probably true. We made it clear, on the contrary, that a court
must take the allegations as true, no matter how skeptical the court may be. . . . The
sole exception to this rule lies with allegations that are sufficiently fantastic to defy
reality as we know it. . . .
Breyer, J., dissenting
● While he believes the government should be protected from unnecessary litigation, the
extension of Twombly is inappropriate as there are other means to do this.

FRCP 56 (Motion to Dismiss) (p. 560)

Adickes v. S.H. Kress & Co (p. 561) (1970)
● Under § 1983 P must show two elements
o D has deprived P of a right secured by the constitution & laws of the US &
o D deprived P of this right under color of any statute, ordinance, regulation, custom or
usage of any state/territory
● HERE, P must show that D acted under color of law.
● § 1983 can extend to private parties for violating 14th amendment if P can prove an employee,
within the scope of employment & a government official worked to violate asserted rights.
o Involvement of state official in a conspiracy plainly provides the state action essential to
show a direct violation of P's equal protection rights whether or not police actions were
officially authorized/lawful. Thus, a private party involved in a conspiracy like this would
be liable under § 1983.
● With a MSJ, the moving party has the burden of showing an absence of genuine issue of
material fact and the material lodged must be viewed in light most favorable to the opposing
party
o IF moving party met this burden, FRCP 56 € would then have required non-movant to
have done more than simply rely on the contrary allegation in their complaint.
o To avoid conceding a fact would have to show an affidavit of someone who saw a
thing/or under 56 (f) an affidavit of why they could not do that.
OG Civ Pro notes:
Issue: How is a summary judgment motion considered?
Holding: On summary judgment, the inferences to be drawn from the underlying facts contained in the
moving party's materials must be viewed in the light most favorable to the party opposing the motion.

Issue: Does FRCP 56(e) shift burden to non-moving party to prove a genuine issue of fact?
Holding: No. FRCP 56(e) doesn't absolve moving party of its burden to show absence of issue re: any
material fact. While it is dangerous for non-moving party to not offer evidence to counter summary
judgment nor file a 56(f) affidavit, it doesn't absolve moving party of its burden to show it is entitled to
summary judgment.

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Black, J., concurring
● Existence of a conspiracy is a factual issue that the jury should decide, not the trial judge. It was
also error to direct a verdict based on custom/usage.

Douglas, dissenting (in part)

● Thinks court should expand scope of civil rights litigation and the reach of 1983 to all, not just
upon showing of conspiracy.

Brennan, J., concurring/dissenting

● If an individual discriminates on the basis of race and does so in conformity with the state's
policy to authorize this discrimination, neither the state nor the private party will be allowed to
say that their involvement is outside the 14th amendment.
● Does not like the custom/usage = law decision of majority

Celotex Corp v. Catrett (p. 569) (1986)

● Rule 56(c) directs the entry of summary judgment, after adequate time for discovery and upon
motion, against a party who fails to establish the existence of an element essential to that
party's case, and bears the burden of proof of demonstrating that element at trial. Summary
judgment is designed to afford the parties a just, speedy and inexpensive resolution to their
controversies. The party seeking summary judgment carries the initial responsibility of informing
the court of the reason why the motion should be granted by identifying those parts of the
lawsuit lacking a genuine issue of material fact. However, there is no specific requirement under
Rule 56 that the movant provide affidavits to support its motion. A party making a motion for
summary judgment does not need to provide affirmative evidence (in the form of affidavits) to
support its motion.
Issue: Does FRCP 56(c) mandate that the moving party must support its motion for summary judgment
w/ an affidavit?
Holding: No. FRCP 56(c) language of affidavits or declarations suggests absence of such a requirement
and claimant/defendant can move for summary judgment w/ or w/o affidavits.
● In cases where a non-moving party will bear burden @ trial on a dispositive issue a summary
judgment motion may be made in reliance solely on pleadings, depositions, responses to
interrogatories and admissions on file.
● Rule 56(e) would require a non-moving party to go beyond their own pleadings and their own
affidavits/interrogatories/depositions/admissions and designate specific facts to show genuine
issue @ trial.

Issue: Does the Adickes decision mean the moving party must produce evidence showing absence of a
genuine issue of material fact even with respect to an issue on which the non-moving party bears the
burden of proof?
Holding: No. The burden on a moving party may be discarded by showing that there is an absence of
evidence to support the non-moving party's case.

White, J., concurring

● In order to receive summary judgment, the movant must support the motion in some way.
Submitting conclusory allegations that the nonmovant can't support his case to the court is
insufficient.
Brennan, J., dissenting

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 ● The majority’s legal analysis is correct, but incorrectly applied. If the burden of persuasion is
with the nonmoving party, the moving party may request summary judgment by either
submitting affirmative evidence disproving an essential element of the claim or demonstrating
to the court that the evidence on record is insufficient. Celotex has elected to take the second
option, but its motion cannot succeed with conclusory assertions. While affirmative evidence is
not required under the second option, an affirmative showing of the absence of evidence is
necessary. Celotex did not meet its burden of production in showing that Catrett did not possess
any evidence supporting her claim.

Lovely v. Eggleston (p. 576) (SDNY 2012) - Movement for Partial Summary
Judgment
● Cannot move for damages before determining liability.
● "It is axiomatic that summary judgment as to damages can only follow a determination that
damages are, in fact, owed (i.e., that D is actually liable for damages). In the absence of such a
finding, any such determination could only be an inappropriate advisory opinion.

US v. Will (p. 579) (1980)

● Rule of Necessity is a well-settled principle at common law that while a judge better not, if it can
be avoided, take part in the decision of a case in which she has any personal interest, she must
do so if the case cannot otherwise be heard.
o In this case, which involved salary changes for judges that implicated Art. III's
compensation case, legislature could not use statute to disqualify all judges to
determine whether this was proper (it wasn't, at least insofar as it reduced salaries for
judges whose salaries had already been increased)

Teamsters v. Terry (p. 582) (1990)

I: Is an employee seeking backpay as a form of relief for an allegation of a union's breach of its duty of
fair representation entitled to a jury trial under 7th A?
H: YES. The duty is inferred from unions' exclusive authority under the NLRB & must discharge this duty
under bargaining with employer and enforcement of the contract. And 7th Amendment provides that in
suits at common law here value exceeds $20 jury right is preserved. FRCP 2 preserved the jury right
when legal rights are at stake.
● Because this right is analogous to a right under fiduciary duty and a legal remedy => entitled to
jury trial.
Analysis for whether a jury right exists:
● Since merger of courts of law & equity, jury right extends to common law forms of action
recognized in 1791 and causes of actions created by congress (BUT NOT EQUITABLE RELIEF).
● To determine whether an action will resolve legal right, court examines nature of issues and
remedy sought. The remedy sought = more important inquiry.
1. Nature of issues: IF an action didn't exist in the 18th century, court looks for an analogous cause
of action that existed in 18th century to determine if nature of action is legal or equitable.
a. If issue is one at law: jury right preserved
b. If equitable: NO, but still move to section two of the analysis.
2. Relief Sought
a. GENERALLY: financial damages are LEGAL and not EQUITABLE but there are exceptions
to this rule.
i. A monetary award incidental/intertwined with injunctive relief = equitable

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 3. THEN: Court balances prongs 1&2 (with more weight on prong #2).
a. So, HERE: while court found analogous 18th century claims that were both equitable
and legal, damages were monetary and are traditionally awarded by courts of law, so
8th amendment grants a jury trial right.
Brennan, J., concurring
● Thinks we have to dispose of the analogous portion of the applicability of 7th amendment and
would, instead, base the entire inquiry on the type of relief sought. If the relief is legal in nature,
would hold that the parties have a constitutional jury right unless Congress has permissively
delegated the particular dispute to a non-Article III decisionmaker and jury trial would frustrate
congressional purpose.
Kennedy, J., dissenting
● Disagrees with the analytical model that the majority puts forward and would instead hold that
a right to fair representation is more analogous to a trustee relationship.

Batson v. Kentucky (p. 592) (1986)

● Equal Protection
o SCOTUS has found a denial of equal protection where the procedures implementing a
neutral statute operated to exclude persons from the veniere on racial grounds and has
made clear that the constitution prohibits all types of purposeful racial discrimination.
THIS EXTENDS TO PEREMPTORY CHALLENGES.
How to make prima facie case of purposeful discrimination in jury selection:
1. D must show that they're a member of a cognizable racial group and P used challenges to
remove jury members of that race
2. D is entitled to rely on fact that challenges are a practice that permits those of a mind to
discriminate to do so
3. D must show facts & relevant circumstances raise an inference that prosecutor used the
challenges to exclude jurors because of their race.
How to decide if D meets burden
● Trial ct should consider all relevant circumstances.
● A "pattern of strikes" of one race of jurors might = an inference of discrimination.
● A prosecutor's questions during voir dire examination and use of challenges may support/refute
an inference of discriminatory purpose
o BUT: up to trial judge to determine.
Once D makes their prima facie case:
● Burden shifts to P to come forth with neutral explanation for challenging jurors. This explanation
doesn't have to be a justification for cause
o BUT: can't simply say challenge based on assumption/intuition that the potential juror
would be partial b/c of their shared race.
● INSTEAD: prosecutor must articulate a neutral explanation to a particular case
to be tried.
● THEN: Court has a duty to decide if discrimination was purposeful or not.
White, J., concurring
● The practice of using peremptory challenges to exclude African Americans from juries in cases
with African American defendants remains widespread, so the Court's decision correctly allows
an inquiry into prosecutors' use of peremptory challenges. However, the Court's decision should
not be given retroactive effect on criminal cases in which the trial began prior to the
announcement of the decision.

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Marshall, J., concurring
● The Court’s holding is correct but is only a first step towards ending racial discrimination in jury
selection. To accomplish this goal, peremptory challenges, for both the defense and the
prosecution, must be eliminated entirely. The rule established by the Court is not sufficient to
end discrimination because it enables defendants to challenge blatant examples of
discrimination, but not the more subtle kinds. Furthermore, it is difficult for a court to assess a
prosecutor’s motives and decide what neutral explanations are acceptable. Finally, the
prosecutor or the judge could harbor conscious or unconscious racism. This could justify a
seemingly neutral explanation for excluding a potential juror, but the objectionable
characteristic could be something the prosecutor never would have noticed with a white
venireman.
Burger, J., dissenting
● Peremptory challenges have been used as part of the jury process in this country for nearly 200
years, and they are part of a common-law tradition spanning several centuries. Despite that
history, the Court has decided to set aside the use of peremptory challenges on equal-
protection grounds, even though Batson expressly declined to make an equal-protection
argument before the Kentucky Supreme Court or this Court. The state has a substantial, and
perhaps even compelling, interest in using peremptory challenges to ensure the fairness of jury
trials, and the Court is wrong to limit their use.
Rehnquist, J., dissenting
● The Court misapplies the Equal Protection Clause because there is nothing unequal about the
state excluding African Americans from jury when the defendant is African American. This
technique is applied across the board and when a defendant falls into another group or class,
the state excludes potential jurors having membership in that particular group. Group
affiliations have long been recognized as a legitimate basis for exercising peremptory challenges.

Plausibility Pleading Framework – From Lahav/OG Civ Pro

TWIQBAL
● Plausibility is necessary to survive a motion to dismiss for failure to state a claim (FRCP 12b6).
● A bare assertion will not suffice
● Require enough facts to state a claim to relief that is plausible on its face.
● As stated in Citibank re: Plausibility "court will ask itself could these things have happened, not
did they happen."
● Judicial experience and common sense = plausibility standard
Pleadings Analysis
1. Eliminate conclusory allegations
a. Conclusory = a conclusion of law e.g. "client was Negligent". Instead say an accident
was a result of negligence (common in car accidents/common result)
b. Conclusory elements is not a test, but a reminder that a pleading must be structured in a
way that a judge wouldn't see it as a conclusion of law
i. think about it as a "bridge too far" and to avoid this "what is the best argument
that is not a conclusion".
2. Evaluate remaining allegations for a valid claim arises (is plausible)
Plausibility Test
● Subjective and based on "judicial experience and common sense"
o There must be enough factual matter (taken as true) to support the allegation (aka
PLAUSIBILITY). This does not impose a probability requirement at the pleading stage,

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 but it calls for enough fact to raise the expectation that discovery will yield evidence of
the allegation. Twombly
o Parallel Conduct is not sufficient b/c there is a plausible alternative explanation.
o per Lahav: this question is really about common sense & whether the case makes
sense/is believable. If it's impossible to prove --> not plausible.
o at times, FRCP 9b can be used to combat questions re: plausibility because malice,
intent, knowledge and other conditions of someone's mind (e.g. discrimination) can be
pled "generally"
● To get in this mindset/determine likelihood of plausibility, ask yourself:
o Is there an "obvious alternative explanation"?
● A court could dismiss a claim if there is one
o Is there a "more likely explanation"?

FRCP re: Complaints & Answers

Federal Rules:
FRCP 3: Commencing an Action
FRCP 7(a): Types of Pleadings
FRCP 8: General Rules of Pleadings
o 8 (a) - all 3 elements are required
o 8(b) – Defenses; Admissions & Denials
o A party must admit/deny all allegations alleged by the other party
o 8c - affirmative defenses, must use them immediately or lose them once claim is served
o must be brought immediately or they are waived
o means: Even if you can prove your cause of action, I will still win because of some other
doctrine
FRCP 9(b): Pleading Fraud or Mistake
o at times, this can be used to combat questions re: plausibility because malice, intent, knowledge
and other conditions of someone's mind (e.g. discrimination) can be pled "generally"
FRCP 10: Form of Pleadings
FRCP 12: Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings;
Consolidating Motions; Waiving Defenses; Pretrial Hearing
FRCP 12b Defenses Made by Motion:
1. Subject Matter Jurisdiction*
2. Personal Jurisdiction
3. Improper Venue
4. Insufficiency of Process
● meaning: something is missing from what was given to the party
5. Insufficient service of process
● meaning: served the wrong person
6. Failure to state a claim*
7. Failure to join a required party*
● required parties -- FRCP 19 (joinder section of outline)
*Do not need to be brought immediately to avoid being waived
**All motions that will be brought must come at the same time or they are waived
FRCP 16 (a)-(b): Pretrial Conferences; Scheduling; Management

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Constitution/FRCP re: Jury Right
● 7th Amendment (only for federal courts)
● Interpreted to mean if you had a right to a jury in 1789, you have a right to a jury today
● Can always waive right to a jury
● Test:
o If you're asking for $$ damages => Jury right (court of LAW)
o If you're asking for an injunction => no jury (court of equity)
● FRCP 38: Right to a Jury Trial; Demand
● FRCP 39: Trial by Jury or by the Court
● FRCP 47: Selecting Jurors
● Trial judge exercises substantial control over voir dire in the federal system. Edmonson
o Determine the range of information that may be discovered about a prospective
juror
o Oversees exclusion of jurors for cause
Summary Judgment/Directed Verdict
Summary Judgment
● FRCP 56(a): summary judgment can be entered on "part of a claim or defense". (partial
summary judgment)
● FRCP 56(c)(2): cannot use inadmissible evidence in arguing for/against summary judgment
● FRCP 56(c)(4): must be based on personal knowledge (and not hearsay), set out facts admissible
as evidence, and show affiant/declarant is competent to testify
● FRCP 56(e): is not a burden shifting provision. The moving party must show there is no genuine
issue of material fact.
Directed Verdict
-FRCP 12(b)(6): Failure to state a claim upon which relief can be granted
-FRCP 50: Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial; Conditional Ruling
● Must bring a FRCP 50(a) motion in order to bring a FRCP 50(b) motion
● FRCP 50(a): brought at the close of the Plaintiff's affirmative case (meaning: before all evidence)
o Often will still allow trial to continue even if a 50(a) motion for directed verdict is
brought for efficiency's sake
- FRCP 52(c): covers Judgment as Matter of Law in instances without a jury
● Permits judge to enter judgment as a matter of law against a party on a claim that the party
cannot win so long as that party "has been fully heard on an issue"
-FRCP 59: New Trial; Altering or Amending a Judgment
● Losing side can move for a new trial
● Judge is empowered under 59(d) to grant a new trial on their own initiative
o One reason: verdict rendered, judge is convinced they made a mistake that'd be
reversible at the appellate court & no other way to fix.
-FRCP 60: Relief from a Judgment or Order
● FRCP 60(b): judgment never was
o Subrules and a catchall. So if 1; 2; 3 apply ==> cannot use catchall to vacate.
Tests re: Summary Judgment
Two things you need to show in a motion for summary judgment
● Do you have an issue of material fact that can be argued at trial?
o If yes ==> claim survives summary judgment
o If no ==> summary judgment is appropriate

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 ● Is the moving party entitled to judgment as a matter of law?
Burden re: proving issue of material fact (Celotex)
● Moving party has the burden of production in a motion for summary judgment.
● In cases where non-moving party will bear burden @ trial on a dispositive issue a summary
judgment motion may be made in reliance solely on pleadings, depositions, responses to
interrogatories and admissions on file.
● Rule 56(e) would require non-moving party to go beyond their own pleadings and their own
affidavits/interrogatories/depositions/admissions and designate specific facts to show genuine
issue @ trial.

Burden shifting in a MSJ

● Moving party has to prove no issue of material fact, using original evidence (or: optionally,
additional evidence)
● Non-moving party then has to prove, with additional evidence [in accordance w/ 56(e)]
● Standard for summary judgment mirrors the standard for a direct verdict under FRCP 50(a)
Liberty Lobby (referenced p. 571)
● "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" Matsushita (ref. p. 573)
● "if the factual context renders [plaintiff's] claim implausible--if the claim is one that simply
makes no economic sense--[plaintiffs] must come forward with more persuasive evidence to
support their claim than would otherwise be necessary." Matsushita (ref. 573)
o Meaning: if not plausible, won't survive a summary judgment motion
Test re: Directed Verdict
Test for Judgment Not Withstanding the Verdict & Renewed Judgment
Notwithstanding the Verdict
● Consider evidence of the nonmoving party in the light most favorable to that party, taking the
nonmover/s conceivably believable evidence as true and giving the nonmover the benefit of all
reasonable inferences.
● If a claim cannot be maintained without a party's having "a legally sufficient evidentiary basis to
find for the party on that issue" and if such evidence was not presented--and if the party has
been fully heard with respect to that issue--then ==> Judgment NWTV can be granted
Args for Directed Verdict
● Inferences don't stretch that far
● Facts are in a fog
● We know what happened, but reasonable people can't find that it meets the legal standard
● No reasonable person could believe evidence presented b/c it's not credible on its face
Args to survive it
● USUALLY FAILS: Evidence is in defendant's hands & jury after viewing the D or D's witness will
not believe they are credible

Batson – Test framework from OG Civ Pro

Batson v. Kentucky -- Three part test to detect race-based uses of peremptory strikes (p.541):

1. The party opposing the strike must show that circumstances surrounding a particular strike
permit an inference that the peremptory challenge was race-based
2. The burden shifts to the proponent of the challenge to provide a race-neutral reason for
exercising the strike
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 3. If the race-neutral reason for the striking of a juror applies equally to a juror who was
impaneled, then this evidence of pre-text can support a conclusion of purposeful discrimination.

Class 13 – Jury Right cont’d/Civil Rights Cases/Damages

Class Notes
He thinks it's important to take the caselaw and develop an analytic framework from it.

Teamsters v. Terry
● 7th Amendment: "In Suits at common law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-
examined in any Court of the United States, than according to the rules of the common law."
● Look at type of issue and whether it's analogous or not
● Brennan, J., concurring
o Look at the remedy to determine whether the 7th amendment applies or not

Batson v. Kentucky
● An absolutely unhinged 20 minutes where Eddie just said discrimination is fine and went unchecked
until… he did not.
● Marshall, J., concurring
o Get rid of peremptory challenges period

Kumho Tire v. Carmichael

● He doesn't think that experts should be excluded if they have a unique approach
● The jury may be overexpressed with a witness like the one the Carmichaels used, so the judge has to
have the latitude to either allow or exclude the testimony.

Silkwood v. Kerr-McGee
● State can't regulate the nuclear waste, but this does not mean that the state is preempted from
enforcement of state law.
● Dissent: punies are a form of regulation

BMW v. Gore
● Due Process Clause integrates with 14th Amendment
● Grossly excessive in relationship to state's interest in punishing/deterring deceptive trade practices
o Look to see if the award is GROSSLY excessive (not just excessive) (start with this standard)
and then go through the steps in the case.
● Breyer, J.
o A framework of analyzing his concurrence:
● Did the Judge enjoy sufficient criteria within the system in order to make a decision
that you can make sense of, even if you disagree.
▪ Here: decisionmaker had NO criteria upon which to base his decision.
● He thinks his focus is whether the system has a framework for this damages award,
and, HERE there is not one.

Lovely (settlement)
● Started in 2005, got to settlement in 2018
o Concession not taken to mean anything else

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Riverside v. Rivera
● Damages were very modest
● Present bill for their work and the judge approves it (but didn't get the multiplier that they wanted
here)

Case Notes
J.E.B. v. Alabama (p. 601)(1994)
● Batson and unconstitutionality of excluding jurors on the basis of race extends to both civil &
criminal trials
● Under JEB, intentional discrimination on the basis of gender in peremptory challenges ALSO
violates equal protection.
● Test re: gender discrim in peremptory challenges
o Court examines whether the discrimination substantially furthers state's legitimate
interest in achieving a fair and impartial jury.
● They do NOT weigh the institutional value of peremptory challenges v.
commitments to eradicate discrimination from courtroom, but instead whether
these challenges provide substantial aid to a litigant's effort to secure a fair &
impartial jury.
● The Court doesn't accept a defense to the use of these challenges to be the very stereotype that
the law condemns
● Application of a test re: gender-based discrimination in peremptoriness mirrors Batson and
applies equally if challenging to get an all male or all female jury.
O'Connor, J., concurring
● This court’s holding should be limited to the government’s use of peremptory strikes. If this
decision applies to all litigants, it will increase the amount of litigation surrounding jury
selection, and, most importantly, erode the role of peremptory challenges. Peremptory
challenges are an important and well-established tradition, and they play a key role in ensuring
that litigants try their cases in front of fair and unbiased juries. By further constitutionalizing jury
selection, this court is forcing litigants to articulate the intangible reasons why they utilize their
peremptory challenges, and may result in a less, not more, fair jury.
Kennedy, J., concurring
● Wants to emphasize that jurors, once seated, should not give free rein to some racial or gender
bias.
Rehnquist, J., dissenting
● Even if you accept that Batson was correctly decided, there are significant differences between
racial and gender discrimination. Race is strict scrutiny and gender is rational basis.
Scalia, J., dissenting
● The court’s decision seems to be more about proving that the court does not harbor bias based
on sex than about equal protection. This holding ignores the long tradition of litigants’ use of
peremptory challenges as an essential part of ensuring fair trials, and renders peremptory
challenges basically useless. The constitution does not sanction disregarding tradition.

Kumho Tire v. Carmichael (p. 610)(1999)

● Daubert factors extend to engineers and other non-scientific experts who are to serve as expert
witnesses. Under Daubert, expert testimony is admissible if it is both relevant and reliable.
o TRAP factors (Daubert test - copypasta from evidence outline)
● Testing – has this method been tested

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 ● Known Rate of Error/Standards controlling the technique's operations
● Acceptance by Others in that Field
● Peer Review/Publication – has the method been peer reviewed?
● The trial court's obligation here extends to testimony based on "scientific," "technical," and
other "specialized knowledge."
● Trial court can consider one or more specific Daubert factors to assess reliability, but this test,
ultimately, is flexible and the factors are non-exclusive
o INSTEAD: the trial court is granted the same latitude to assess reliability as it enjoys in
the ultimate determination.
● When an appellate court reviews the trial court's decision to admit/exclude
expert testimony, the standard is "abuse of discretion."
Scalia, J., concurring
● Wants to add that the discretion is not so broad as to allow for a trial court to perform its
gatekeeping function inadequately. Rather, it's discretion to choose among reasonable means of
excluding shitty expertise/junk science.
Stevens, J., concurring/dissenting
● Takes issue with the fact that the court considered abuse of discretion in this case because it
wasn't part of the issue presented.

Silkwood v. Kerr-McGee (p. 617)(1984)

● SCOTUS is empowered to review decision of a federal court of appeals by appeal if a state
statute is held by the court of appeals to be invalid as repugnant to the constitution. 28 USC §
1254(b).
● Inquiry as to whether Federal preemption of a state's ability to regulate in an area extends to
preemption of ability to recover damages under state law.
o Burden is on D to show Congress intended to preclude a damages award
● Can't be shown by arguing what types of award (compensatory v. punitive) are
at issue.
● Preemption of recovery of damages shouldn't be based on Fed Gvt's field
preemption of regulation/safety in an area, but instead on whether there's an
irreconcilable conflict btwn fed and state standards OR whether the imposition
of a state standard in a damages action would frustrate federal law. (appears to
be a high bar to clear)
Blackmun, J., dissenting
● Does not believe that punitive damages should be recoverable because they are meant to
compel adherence to a specific safety standard, which need not be the federal standard, and
this is an end-around to allow a State to enforce a standard of care that is more exacting than
the federal standard.

BMW of North Am. v. Gore (p. 627) (1996)

● Due Process Clause of 14th amendment prohibits a state from imposing a grossly excessive
punishment on a tortfeasor
● Punitive damages may properly be imposed to further a state's legitimate interests in punishing
unlawful conduct and deterring its repetition.
o States have considerable flexibility to determine level of punies in different classes of
cases and any individual case, and, states afford juries similar latitude, requiring only
that damages awarded are reasonably necessary to vindicate a state's legitimate

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 interest in punishment and deterrence. SO: this only violates 14th A if it's grossly
excessive in relation to these standards.
● Federal excessiveness inquiry
o Begins by identifying state interests that punies are meant to serve
o Factors considered when a verdict is alleged to be excessive
● Degree of reprehensibility of the D's conduct
▪ Reprehensibility: the most important indicum of a punitive award b/c it
reflects the accepted view that some wrongs are more blameworthy
than others.
● Infliction of economic injury, especially if done intentionally
through affirmative acts of misconduct/when target is
financially vulnerable can warrant substantial penalty, BUT this
doesn't mean all economic harms justify large sanctions.
● An omission of a material fact MAY be less reprehensible than a
deliberately false statement especially when there's a good
faith basis for no duty to disclose the fact.
● That conduct is sufficiently reprehensible to give rise to tort
liability/a modest award of punies doesn't establish the high
degree of culpability that warrants a high punitive damage
award.
● Disparity of harm/potential harm suffered & punitive damage award
▪ Ratio: most cited indicum of unreasonable/exessive punies is the ration
of punies to the actual harm to a P. Principle that exemplary damages
must have a "reasonable relationship" to compensatory damages has a
large history.
● BUT: SCOTUS has consistently rejected the notion that the
constitutional line is marked by a simple math formula, even
one that compares actual and potential damages to punies
awarded.
● HOWEVER, when the ratio is "breathtaking" (500:1 in this case)
it raises judicial eyebrows
● Difference between remedy and the civil penalty authorized/imposed by
comparable cases
▪ Sanctions for comparable conduct: comparing awarded punies to civil or
criminal penalties that could be imposed is the third indicum.
● In absence of a history of non compliance, there's no basis for
assuming more modest sanction would have deterred conduct
● Even though the company is large, that doesn't diminish its
entitlement to fair notice
● no state may use punies to impose its regulation on the whole
nation.
● A company's status as an active participant in the national economy implicates the federal
interest in preventing individual States from imposing undue burdens on interstate commerce
(so: dormant commerce clause argument here). While each state has ample power to protect its
own consumers, none may use the punitive damages deterrent as a means of imposing its
regulatory policies on the whole nation.
Breyer, J., concurring

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 ● SCOTUS has generally thought that if fair procedures were followed, a judgment that is a
product of that process is entitled to a strong presumption of validity. So, finding excessiveness
should be VERY rare. Goes through reasons why it's ok to do so in this case.
Scalia, J., dissenting
● Does not think SCOTUS has the authority to find a state award of damages excessive and we are
intruding into states rights.
Ginsburg, J., dissenting
● Does not think that SCOTUS has the authority.

42 USC § 1988 (p. 643)

● Award of attys fees in actions where an atty takes up a civil rights action.

Lovely v. Eggleston (p. 643) (SDNY 2018)

● Stipulated agreement, order of settlement, and attorneys' fees.

Riverside v. Rivera (p. 644) (1986)

● I: is an award for atty fees under 42 USC § 1988 per se unreasonable within the meaning of the
statute if it exceeds the amount of damages recovered by a P in the underlying civil rights
action?
● H: NO. While the amt of damages a P recovers is relevant to the amt of atty fees awarded, it's
only one of several factors the court should consider when calculating the fee award under §
1988. Damage awards don't fully reflect the public benefit advanced by civil rights litigation and
a rule limiting atty fees in civil rights cases to proportionality would seriously undermine
congress' purpose because it didn't intend for fees in civil rights cases, unlike most private law
cases, to depend on obtaining substantial monetary relief.
o But INSTEAD b/c Congress found that private legal market failed to provide many victims
of civil rights violations with effective access to judicial process, this is why they don’t'
do that here.
Powell, J., concurring
● Agrees with judgment, but believes that the award is probably unreasonable, but not so much
as to dissent.
Burger, J., dissenting
● Believes that the award here is a perfect example of "legal nonsense" and "grave abuse of
discretion.
Rehnquist, J., dissenting
● Thinks this is a ridiculous award and District ct tried to make up for what it believed was a
crappy award to Ps in fees awarded to attys
● Would endorse proportionality in fees.

Class 14 - Fees

Class Notes
Oquendo
● Hasn't written the exam yet
o Likely no question about Lovely/Eggleston

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 ● Mostly about how to see how a lawsuit is from the beginning to the bitter end
● He would read this as "getting the picture"
▪ This is true for any case that we read
o Open Book Exam
● No idea how many questions he's going to ask
o How detailed/fully developed?
● He doesn’t regard the questions as issue spotters, and instead fears that the
students who just start writing b/c the end product looks it.
● Really wants us to sit back and enjoy the spots
o 20 MC questions
o Hypothetical -- few facts and 10 questions
● Wants us to number our answers for our own benefit so you don't skip any of
them
● Look at Q posed and ask how to address it. There is no answer, but mostly a
question that pertains a bit to strategy and oftentimes he'll ask "should D do
THIS or should they do THAT"
▪ First thing you ask is may he do it?
▪ Then ask -- should he do it? Is it advisable to take this approach?
● Write briefly
● What makes an argument strong is an awareness of
counterarguments.
● Take a clear position at the beginning and give the reasons why,
then say the alternative and why you've rejected it. And then
restate thesis at the beginning because it changes a bit once you
think of counterarguments
● Not necessary, but see how argument flows
o Not on a curve
● Be yourselves, have a big discussion on the issues, go in unexpected directions
● Worst thing you can do is to not go with the vibes
o Be aware of the time.

Marek v. Chesny
● Rule 68
o This is used to weaken 42 U.S.C. § 1988 in this case because an offer was refused here
● Brennan, J., dissent
o Assess reasonableness of the offer
o Lowball offers before discovery are likely
● From class: MAYBE as things move on, offers will still become more reasonable.

Evans v. Jeff D
● Statute does not require that fees are non-waivable and that lawyers have no ethical duty
accept fees. They have a duty to advocate on behalf of their client. That's it.
● No state policy to frustrate the fees act
● Brennan, J., dissenting
o Waiver of fees is against public policy
o Simultaneous negotiation of merits and fees
o Policy of settlement must yield to congressional intent to litigate these cases

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Case Notes

FRCP 68 (p. 653)

● A party defending a claim may serve an opposing party an offer to allow judgment on specific
terms, with the costs then accrued.
● An unaccepted offer is considered withdrawn, but doesn't preclude a later offer.
● But: when an offer is refused under this rule, and the judgment the offeree receives is not more
favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was
made.

Marek v. Chesny (p. 653)(1985)

● FRCP 68 provides that if a timely pretrial settlement offer isn't accepted and the judgment
obtained in court by the offeree isn't more favorable than the offer, the offeree must pay the
costs incurred after making the offer. The intent of this rule is to encourage settlement.
o Rule 68 doesn't require that a D's offer itemizes the respective amounts tendered for
settlement of substantive claim & costs. The offer, so long as it does not implicitly or
explicitly provide that the judgment DOESN'T include cost, a timely offer will be valid
under this rule.
● It is up to the P to assess the offer, knowing the value in damages of claims & costs incurred to
date, and decide whether to take it or not
● If D wasn't allowed to make a lump sum settlement offer that would represent their total
liability, D would be reluctant to make an offer at all.
● Post offer costs merely offset part of the expense of continuing litigation and shouldn't be
included when calculating whether judgment in court was greater than the offered sum.
● I: Do the costs in R68 include awardable atty fees?
● H: Yes. All costs properly awardable in an action are to be considered within the scope of FRCP
68. Here, since congress expressly included atty fees as costs awardable to P, they're subject to
cost shifting under R68.
Brennan, J., dissenting
● Doesn't believe atty fees should be considered costs for several reasons -- history, language re:
costs in other rules, other places in the frcp fees are included explicitly etc.

Evans v. Jeff D. (p. 661)(1986)

● I: Must atty fees be assessed against state officials after a case has been settled by the entry of a
consent decree?
● H: No. The District Court has discretion to refuse to award fees. Although the Civil Rights Atty
Fees Act 42 USC § 1988 has interpreted to permit fees be assessed against state officials after a
case has been settled by the entry of a consent decree, the plain language of the statute reads
"the court, in its discretion, may allow the prevailing party . . . a reasonable atty's fee." May =/
mandate.
● R23(e) requires court approval of the terms contained within a settlement in a class action,
however, it does not allow the court, in advance of trial, to modify a proposed consent decree
and order its acceptance over either party's objection.
o A court may only accept it or reject it.
● I: Does the fees act require that a court refuse to certify a settlement when it waives fees in a
class action?

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 ● H: NO. No text within the statute supports this conclusion, and a general proposition against
negotiated waiver of fees in exchange for a settlement on the merits would impede vindication
of civil rights by reducing the attractiveness of settlement. Most defendants are unlikely to settle
unless the cost of the predicted judgment, discounted by probability plus transaction costs of
further litigation are greater than the costs of the settlement package.
Brennan, J., dissenting:
● This decision undercuts the entire purpose of the Fees Act, which is to promote respect for
human rights.
● Waiver is a decision for the P, but the harm is felt by the attorneys, not the P, so it makes it
difficult to balance interests.

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