Civil Procedure - Course Outline

8/24 - OVERVIEW - Intro/Sub. Matter Jurisdiction

General introductory:
1. What is civil procedure?
a. Dispute between two parties…Neither of whom are the state
b. Procedure is the how: The law, principles, and practices that govern the behavior
of the courts (judges, juries), lawyers, and parties in dealing with non-criminal
disputes that turn into lawsuits.
c. Law of civpro:
i. Constitution
ii. Federal Statutes - 28 USC etc
iii. Fed Rules Civ Pro
d. FRCP Rule 1: Sets principles/policies of the rules - Just (fair), speedy, and
efficient…Finality
e. Why litigation?
i. Litigation is the mechanism for the enforcement of legal rights
ii. Threat of litigation concentrates dispute resolution
iii. Possibility shapes transaction

2. Differentiate civil from criminal

a. Remedies are different - In civil it's strictly money damages or injunctive relief…
Criminal can take away rights, cause loss of liberty
b. Jail is less than one year, prison is more
3. Key terms:
a. Due process - Both the notice and opportunity to allow one to defend himself
b. Stipulate - agreement
c. Actors - judge, juries, lawyers, parties
d. Procedure - How do you get a court to listen to you…Conduct in the court

Hawkins Case - Sub. Matter Jurisdiction

F: P killed in auto accident by truck driven by D…D resident of Kansas…P now living in Kansas
with his wife, but maintains connections to Missouri...P needs Dis. court to find he is a "citizen"
of Missouri for court to hear his case…
Pro: FRCP 12(b)(1) m. to dismiss for lack of SMJ…

1. SMJ
a. Where can suit be brought?
b. What do we need to say to get a court to hear our case?
2. State v. Federal
a. State courts are courts of GENERAL JURISDICTION…They have the power to
hear every type of case
b. Federal: Courts of LIMITED JURISDICTION - Set by Article 3 of the
Constitution…Then clarified by 28 USC
i. How do we get to federal courts?
 ii. 1332 - Diversity…Citizens of two different states
1. 1332(a) Is between "citizens of different states"
iii. Why diversity? Arises out
iv. 1331 - Federal case, "arising under" federal law
3. Why does Hawkins fail to find diversity?
a. "Citizenship" legal test - Precedential, and one's "domicile" is subject to two parts
i. Physical presence AND
ii. Intent to remain
1. Fact based inquiry
a. Evidence points to only a "floating intent"
b. No diversity of jurisdiction if party has recently moved
and makes no action to return to former state
b. Thus, case can't be tried in ANY federal court because of lack of diversity/no SMJ
c. REMEMBER - You can't waive SMJ - Court can dismiss a claim at ANY TIME
when it finds it has no SMJ…You can give court power to hear a case w/o SMJ

8/27 - OVERVIEW - Personal Jurisdiction/Venue/Stating a

case/R.11/Response/Amendments

1. Personal Jurisdiction GENERALLY

a. Due Process Clause (14th Amend.)
b. Power over the D's person - Does D have enough context/contacts with a region
to make litigation fair
c. Personal jurisdiction CAN BE WAIVED
2. Venue
a. The place/choice of districts (28 USC 1391)
b. Which of those districts in the state can you bring suit?
3. Service of process - D needs to be served once suit is filed - FRCP 4 - Summons &
complaint to allow for NOTICE
a. Can personally hand summons to D
b. Mail it

Bridges case - Ethical Requirements of "The Bidding" - FRCP 11

F: P fired, alleging ADA violations b/c of disability…Substantive ADA rule says a party must
exhaust administrative remedies first….P does not do that…D 12(b)(6) m. to dismiss…
Granted…In the meantime, P has cured the defect and filed with EEOC…

Pro: FRCP 12(b)(6)…FRCP 11 m. for sanctions

H: R.11 sanctions should be reserved for deterrence of improper conduct…Not intended as a

general fee shifting device.

1. D files for sanctions under FRCP 11

a. 11(b)(3) - Facts
b. 11(b)(2) - Law…Applies to attorney only
c. 11(c)(2) - Safe harbor…21 day grace period to fix attorney's mistake
 2. What is the objective test for R.11 violation?
a. What the reasonably competent attorney would know
3. Sanctions - Court has discretion as to levying sanctions - "May"
4. Policy - R.11 sanctions should be reserved for deterrence of improper conduct…Not
intended as a general fee shifting device.
a. Attorney was not being vexatious, he just made a mistake

Bell case - Stating a claim - The Complaint

F: Accident in real world…P files complaint in state court alleging D negligent conduct…
Complaint says "careless, reckless, and negligent" manner

Pro: D removes to Federal Court…m. to dismiss 12(b)(6)…"Failure to state a claim because P

didn't say what the specific negligent behavior was"…Also FRCP 12(3) m. for a more definite
statement

H: FRCP 8(a)(1) - A short and plain statement of the claim is sufficient as long as it shows the P
is entitled to relief.

1. Stating a claim FRCP. 8(a)(1)

a. We don't require factual/specific pleading…Just sufficient to give D notice
b. Facts are designed to come out in FRCP 26-37 (discovery)
c. It's unjust to ask P to back up all allegations with all facts during the complaint
2. Policy:
a. Don't require fact pleading b/c we don't want to pin down P…P won't be able to
get discovery and some of the truth will be hidden

8/31 - OVERVIEW - Amendments/Parties to lawsuit (joinder)/Discovery/Summ. Jdt.

"3 Big Rules of Modern Civil Procedure"

1) Bare bones pleading
2) Liberal discovery
3) BROAD joinder - Reasons of efficiency

1. Joinder
a. Permissive, not mandatory
b. Party autonomy - P gets to run the show, choosing forum & parties to the lawsuit
2. Test for whether a party can be joinded - Does it arise out of the same transactions or
occurrences?

Larson v. American Family (& Ross-Shannon)

F/Pro: Fire to P's home…P citizens of Colorado…D insurance company fails to pay claim…P
hires R-S to pursue lawsuit (breach/k, bad faith)…All the while R-S is trying to get a job with D
ins. comp., so he does nothing…P finds out, fires R-S, hires atty #2…Atty #2 sues in state
court…D remands to fed. court b/c of diversity of jurisdiction…Discovery reveals actions of R-
S…
 1. P now can try to add R-S to lawsuit…Remember test for joinder is "transactions and
occurrences"
a. FRCP 15 m. to amend complaint and add R-S as D2
i. Reasons for allowing R.15 motion: As a matter of course a party can
amend a complaint once…
ii. But court should "freely give leave when justice so require"
b. FRCP 20(a) m. to join
i. Reasons to allow m. to join: Efficiency (R.1)
ii. There is a co-conspiracy claim…
iii. Even though the complaints against the two parties are different (breach/k
against insurance comp., breach/fiduciary duty against R-S) the breaches
of those separate duties of D's arise out of the same series of transactions
or occurrences…Both involve the same witnesses and facts
iv. The evidence will be the same, thus "same transactions & occurrences,"
and it's efficient to bring the lawsuits together
v. JOINDER IS PERMISSIVE
vi. Remember tactical goal here- Adding R-S as D destroys complete SMJ,
and thus case will be remand to the Colorado state court

2. Discovery - FRCP 26-37, 45

a. Allows you to make the other side answer your questions if they don't want to
b. Very broad - We don't want trial by ambush
c. Goal is to get into a posture to settle - Or summary jdt.

Butler case
F: P is injured in accident…D driver of truck who hits P…P sues D + employer (respondeat
superior) alleging negligence…P goes to litigation farm atty…Referred to AMG/MHC doctors
(non-parties)…They will be called as expert witnesses…

Pro:

1. D files FRCP 45 subpoena ducas tecum - bring documents to deposition - Seeks Total
number of patients referred from P's counsel to non-party expert witness doctors…Also
tries to discover non-party doctor's current patients list
a. Based on R.30 which says you can depose any non-party to lawsuit by using a
subpoena
b. D wants non-party doctors to turn over numbers of patients treated at their centers
and referred by atty + D wants list of current patients
c. P objects under FRCP 26(c) - m. to quash subpoena b/c a) not relevant, b)
privileged, and c) unduly burdensome…
d. D would now file FRCP 37(a)(1) m. to compel
e. Remember FRCP 26(b) defines scope of discovery as relevant to claims and
defenses
f. D contends relevance to harm…Negligence claim…Remember relevance to
claims and defenses…Bias of expert witness in relation to counsel is relevant to
defense of harm caused by accident (negligence)…
 g. Current list of patients is not discoverable
h. State law governs (in this case, Louisiana) in diversity cases
i. LA has VERY broad doctor-patient privilege scope interpretation…
Second part of D's discovery privileged
i. Magistrate judge or trial court has authority over discovery - Discovery decisions
are interlocutory, so not appealable

9/3 - OVERVIEW - Summary Jdt./Trial/Former Adjudication/Appeals

Summary Jdt. - Pretrial Disposition

Houchens case
F: P's husband has 2 life insurance policies…Both require death be by accident for the insured to
be covered…P's husband disappears in the Far East…After 7 years, under substantive law, he is
considered dead…P tries to get D insurance company to pay claim in a breach/k action…D
resists…

Pro: P sues D for the payment of life insurance…D moves for sum. jdt. Under FRCP 56(c)…No
genuine issue of material fact and the movant is entitled to jdt. as a matter of law

2. Celotex standard of granting sum. jdt.

a. After adequate discovery and motion
b. Sum. jdt. is appropriate against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's case AND
c. on which that party will bear the burden of proof at trial
d. What does P have to prove at trial? Breach/k…What were the terms of the k?
e. P could recover life insurance if two elements were met
i. P's husband was dead (at this point in proceeding VA law says he is, so
that is good)
ii. P's husband died of accident
1. NO EVIDENCE in any direction…Can't do any better than
50/50…So as a matter of law there is no way it's more likely than
not husband died of an accident
iii. Even under Celotex standard of viewing evidence in light most beneficial
to party resisting m. for sum. jdt., rationale juror could never find for P
f. Sum. jdt. is a check on rationality - It exists to take away ability for a juror to act
irrationally - A rational juror could not find for P in Houchens case
g. Sum. jdt. = showtime - If there are NO facts in dispute, granted…If there are facts
in dispute…Go to trial

Trial

1. Pre-trial cases are shaped by the possibility of trial PERIOD

2. Why no trial? Costly and risky
3. In a civil case - Directed verdict = judgment as a matter of law = JNOV
 4. FRCP 50 - If evidence is too weak for the jury to reach a verdict, or to have reached the
verdict it did
5. Timing important with JNOV/Renewed JMOL - Need to bring a R50(1) motion to get a
R50(b) decision
6. But if court decides there is SOME evidence from which a rational jury could have
reached the verdict it did/reach a verdict, let the jury decide

Norton v. Snapper case - Remember products liability tort, so P has burden of proving
causation
1. P v. D
a. Accident
b. P's case - Did not know what caused accident, but fingers were on the handle
when mower slid
c. D - m. for directed verdict (JMOL 50(a)) denied
d. D puts on case…Another m. d/v JMOL 50(a) denied
e. Jury in TC finds for P
f. D files for JNOV/RJMOL - FRCP 50(b)
g. TC - Granted - No reasonable jury could have found for P
h. P appeals…
i. Issue at bar is causation…D says b/c P didn't know when hand got caught,
and had no proof, even if there was blade stopping device that made
mower defective, a reasonable jury couldn't determine if it would have
made a difference…
ii. Remember - JNOV/RJMOL/directed verdict burden rests on moving party
to show evidence or lack thereof so strongly and favorably that no
reasonable jury could have arrived at a contrary verdict.
iii. Expert testimony created causual possibility that defective product caused
injury…Timing and testimony of experts. AND OPPOSITE COUNCIL
MADE THE MISTAKE OF NOT POINTING OUT ANY SUPPOSED
WEAKNESS IN P'S PROOF.

Former Adjudication

2. Res judicata = Claim preclusion

a. Same parties
b. Same claim
c. Final judgement on the merits
d. Ergo…No second trial - Can't bring different claim on the same action which has
already seen w/same occurrences
3. Collateral estoppel = Issue preclusion
a. An issue or fact has been decided
b. Parties don't need to be the same
c. But the party against whom the issue was decided is the same
d. And he already had a full and fair opportunity to litigate
e. For issue preclusion - The issue needs to have been already litigated
i. E.g. in case #1 there is a jdt./P - a product is defective
 ii. Case #2 - New P tries another case with same product…D can't retry issue
of defect in a new claim

Rush v. Maple City Heights

1. Lawsuit #1 - P v. City for damage to P's motorcycle due to shitty roads …Jdt./P…City
was negligent and that negligence was the proximate cause of the accident…P gets
money
2. Suit #2 - P v. City for personal injury…Same cause of action as injury to motorcycle
a. TC says issue preclusion…P can get damages for personal injury because issue
was already decided in earlier lawsuit
b. P wants issue preclusion/collateral estoppel
c. D wants claim preclusion/res judicata
d. Sup. Ct. of Ohio - Reversed…Claim preclusion controls
e. When a party suffers both injuries to his person and property arising out of the
same wrongful circumstances, only one cause of action arises. The injuries to
person and property are solely separate items of damage arising out of a single
act.
f. FRCP 1 - Fair, speedy, efficient controls
g. Lord Coleridge excerpt: "It seems to me a subtlety not warranted by law to hold
that a man cannot bring two actions, if he is injured in his arm and his leg, but…
Can bring two actions if his trousers and coat sleeve containing his arm and leg
are torn.

Appeals - Apex Hosiery

1. Courts of appeal can decide some, but not all, decisions

2. In Apex
a. TC orders discovery and says D must produce documents
b. D tries to appeal - But Cir. Ct. says discovery decisions interlocutory, thus not
FINAL DECISIONS, thus not appealable 28 USC 1291
c. Brandeis - "Orders that affect the rights only of the parties to the LITIGATION,
are interlocutory"
d. Final decision on USC 1291 - Final decision is ending the decision in the trial
court on the merits, leaving nothing for the trial court to do

9/10 - REMEDIES - Compensatory/Liquidated, statutory, punitive damages

The fundamental principle of damages is to restore the injured party, as nearly as possible,
to the position he would have been in had it not been for the wrong of the other party.

1. Economic
a. Direct (lost salary, etc.)
b. Consequential
2. Non-economic
a. Pain & suffering
 b. Emotional distress (loss of consortium)

Hathaley
F: US & whites sue Navajos to get off their land…Before indians can, US takes their horses and
sends them off to the glue factory…Navajos sue US…Tort of trespass…SCOTUS renders
jdt./P…US liable for destruction of Navajos property…Case gets remanded to dis. ct. in Utah to
calculate damages…

1. TC on remand awards $186k + in damages to Indians

a. $395 replacement value per horse
b. Loss of use - 1/2 the value of lost animals
c. $3500/P in emotional distress
2. US appeals to Cir. Ct. for damages
a. Court erred in rejecting evidence of value and availability of like animals…P had
a responsibility to mitigate their losses
b. Right to loss of use based on arbitrary factors…Also right to loss of use does not
extend forever…Law limits loss to time in which a prudent person would replace
the destroyed horses and burros
c. TC erred in emotional distress calc…Pain and suffering is an individual matter,
not a common injury, and must be so treated.
d. Cir. Ct. remands for a new trial for damages
e. H: In awarding damages for a tort, a court errs when it fails to consider
availability of like animals in determining market value, it fails to limit the
time a party was able to collect loss of use damages to the "prudent person"
standard, and doesn't treat pain and suffering as a common injury.
3. FRCP 26(a) - State amount/type of relief sought during discovery

Liquidated Damages - See k

Statutory Damages - Similar to liquidated damages; Statutes state minimum damage
requirements and are designed to offset the costs of litigation over matter that are often small in
dollar amount and to encourage P to enforce public policy by bringing suit

Punitive Damages

1. Goal is to punish and deter

a. Requires intentional, willful, wanton conduct
b. Due process clause (14th Amend.) protects HOW - Procedural due process, and
the WHAT - Substantive due process

Campbell v. State Farm

F: Accident where Campbell was driving…Kills Ospital/hurts Slusher…Ospital & Slusher v.
Campbell (State Farm is his insurer)…SF declines to settle for 50K…In the TC - jdt./O&S get
185k…Campbell appeals and SF pays the difference…
New lawsuit…Campbell w/O&S v. State Farm for torts: Bad faith, fraud, int. infliction of
emotional distress…TC for P…Utah Sup. Ct. for P…$1mil compensatory damages, $145mil in
punitive damages

2. Case to SCOTUS - Does this award of damages violate 14th Amend. Due process clause?
Procedural?
a. No. Procedure satisfied.
3. Substantive?
a. Yes! We use the "Gore" test for punitive damages to afford D's in civil cases
awarding punitive damages the same protections afforded D's in criminal
proceedings, as punitive awards serve the same purpose as criminal penalties
b. Gore Test:
i. Degree of reprehensibility
ii. The ratio of comprehensive damages to punitive damages
iii. The comparable civil penalties
c. Under this test, the Utah Sup. Ct. erred in awarding 145:1 ratio of punitive
damages
i. While D's conduct is reprehensible, Utah can't punish with punitive
damages conduct outside the state, which it clearly was
ii. Ratio is too big, especially in a case with a large comp. reward for what
are mainly economic harms
iii. 10k is the largest comparable civil sanction in Utah for an act of fraud!
d. Campbell adds this to Gore test: A defendant should be punished for the conduct
that harmed the P, not for being an unsavory individual or business. Due process
does not permit courts, when calculating punitive damages, to adjudicate the
merits of other parties hypothetical claims against a D under the guise of the
reprehensibility analysis

1. You have to plead remedies - FRCP 8(a)

a. Damages
b. Injunctive relief
c. Punitive damages
2. Discovery of whether or not D has insurance is mandatory…Points to being able to settle

Specific Relief - Injunctive Relief

1. Temporary Injunction - FRCP 65(a)

a. Needs notice to the adverse party
b. Can be combined with a trial on the merits, and even if not ordered, evidence
received on that the motion that would be admissible at tril becomes part of the
trial record and need not be repeated at trial
2. Permanent injunction - Not a legal remedy (not available at law) - It's EQUITABLE
RELIEF - So $ damages are not available - Matter at common law
a. TEST for PERM INJ.
i. Irreparable injury
ii. Balance of harms b/t P & D
 3. NOTE - When a cause of action is tried to the court sitting without a jury - FRCP 52
applies
a. Court must make findings of fact
b. Also must make conclusions of law
c. Except when ruling on a R12 m. to dismiss or a R56 m. for sum. jdt.

Sigma Chem. v. Harris

F: D works at P chemical company…Signs non-compete clause…Goes to work for competitor in
violation of reasonable non-compete clause…P m. for and receives R65(b) TRO…D continues
working for ICN (competitor)…P makes motion for permanent injunctive relief…

9/14
Remedies - Specific/Provisional
Pleadings - Stating the elements of a complaint

Sigma Chem cont.

1. P m. for perm. injunctive relief - Remember b/c permanent injunctive relief is an
equitable remedy, the judge decides it
2. Court applies a balancing test
a. Is there irreparable harm?
b. What is the balance of hardships
c. What is the public interest
3. Court holds D to a modified restrictive covenant
a. There is a risk of irreparable harm…D has intimate knowledge of P's secrets
developed over 40 years, and can risk disclosing that to a direct competitor
b. While harm exists to D, it is diminished by fact that other former e'ee's of P had
no difficulty entering into employ with non competitors of Sigma
c. There is a public policy of competition and free movement of labor, so the court
allows a shaved restrictive covenant and prevents D from working in a certain
capacity @ competitor

Provisional Remedies

Leubsdorf passage: A court considering a m. for interlocutory relief faces a dilemma. If

it does not grant prompt relief, the P may suffer a loss of his lawful rights that no later remedy
can restore. But if the court does grant immediate relief, the defendant may sustain precisely the
same loss of rights.
The dilemma exists only because the court's interlocutory assessment of the parties'
underlying rights is fallible in the sense that it may be different from the decision that ultimately
will be reached. The danger of incorrect preliminary assessment is the key to the analysis of
interlocutory relief…
The court need not consider every harm resulting from an erroneous preliminary
decision, but only harm that final relief cannot address.

Inglis
F: Big baker (D) selling bread below cost with the intention of driving out competition…D says
it's just meeting competition…P m. for preliminary injunction to stop D from selling at a loss…
Dis. Ct. denies…

1. Dis. Ct.'s decision IS APPEALABLE…Pursuant to 28 USC 1292(a)(1)…Cir. Courts

have jurisdiction over appeals of interlocutory orders refusing or dissolving injunction
2. Dis. Ct.'s test for preliminary injunction:
a. Irreparable harm (old growth forest)
b. Likelihood of success by moving party on the merits
c. Balance of hardships
d. Public interest
3. DC says P is not likely to win on the merits, and D has negated the prima facie violation
of the anti-trust act by the "meeting competition" defense.
4. Cir. Court reverses, and proposes a second test:
a. A combination of probably success on the merits AND the possibility of
irreparable injury OR
b. Serious questions are raised AND the risk of harm is great
c. Basically, you can get a prelim. Inj. if the risk of harm is great but your chance of
succeeding on the merits is small
d. Remember to take public policy into account: In this case, P is asking a judge to
force D to raise his prices for the duration of the anti-trust suit, which could be
years. That will put a disproportionate burden on poor families, who spend a
predominance of their income on housing and food.

Are provisional remedies too fast - Provision remedies and Due Process

- Remember…All procedures are subject to examination under the Due Process Clause

Fuentes - Due Process respects a right to personal dignity - People feel better after being
heard - The Constitution also recognizes higher values than speed and efficiency…Looking
for justice and the protection of rights and values of a vulnerable citizenry from the
overbearing concern for efficiency that may characterize a praiseworthy government effort

F: Fuentes (P) buys stove on an installment plan…Dispute arises over payments with D Firestone
store…D sues P in small claims court and files writ of replevin…Gets sheriff to go to P's house
and w/o hearing takes back stove…P does get hearing, but it is post-deprivation…P could also
get stove back, but she would have to post $1k in property as collateral…Sup. Ct. of Florida -
jdt./for D

1. SCOTUS - Pre-hearing deprivation violates 14th Amend. Due process…

2. SCOTUS requires
a. Notice
b. Opportunity to be heard PRE-DEPRIVATION
3. Also says there is no differentiation between property and significant property…They're
both protected under the Constitution…
PLEADINGS - Challenging the pleading

1. Jurisdiction - "Not Here" - D asserts this case does not belong in federal court - FRCP
12b1 or 12b2c
2. Abatement - "Not until this is fixed" - D asserts case brought in the wrong venue - 12b3
3. Demurrer- "So what?" - D asserts that allegations of complaint do not state a claim - 12b6
4. Traverse - "I didn't do it, it didn't happen" - D asserts allegations of complaint are false -
Denial/answer
5. Confession and avoidance - "Yes, but…" - D asserts statute of limitations has run on his
claim - Affirmative defense contained in answer

Three ways to fail under a R12b6 motion:

1. P omits a necessary element of the claim (Bridges/sloppy lawyer case)
2. Confusion over what a necessary element means (Haddle)
3. Insufficient facts
a. Bell - No
b. Twombly - Yes, maybe just for anti-trust
c. Iqbal - To state a claim based on a violation of a clearly established right, the
detainee had to have pled sufficient factual matter to show that petitioners
adopted and implemented the detention policies not for a neutral,
investigative reason, but for the purpose of discriminating on account of race,
religion, or national origin. The complaint had not nudged the claims of
invidious discrimination across the line from conceivable to plausible.

REMEMBER - UNDER A 12b6 MOTION WE MUST ASSUME ALL FACTS OF THE

COMPLAINT ARE TRUE! AND EVEN IF THAT IS THE CASE, THE LAW PROVIDES
NO RELIEF FOR WHAT IS BEING ALLEGED!

Claim = substantive law…e.g. elements of negligence…Have to prove a) Duty b)Breach

c)Causation d) Harm

Haddle - Confusion over an element of the claim

F: P an at-will employee…D employer under investigation for fraud…P appears before grand
jury…P fired…Contends he was fired to intimidate at federal trial…P sues under USC 1985 -
"suffers an actual injury to property"

1. In disctrict court
a. D files 12b6 m….So what…P has no constitutionally protected interest in
continued employ b/c P is an at will employee…Therefore law offers no relief
and P's complaint fails to state a claim
b. 1985 claim dismissed w/prej…Therefore appealable to circuit court
c. 11th circuit per curiam unpublished decision following precedent and using the
exact same Morast precedential argument affirms district court
2. SCOTUS - Certiorari granted b/c of disagreements between the circuits
a. Reverses
 b. What is being protected under the language of 1985 statute is protection from
intentional interference with contractual relations…Species of tort law…"The
unjustified interference of third persons is actionable though the employment is at
will."
c. P states a claim b/c what the substantive law is protecting is P's right to testify w/o
feeling his job threatened or intimidated, and that includes at-will employees
d. USC 1985: Property injury includes at-will employee who is intimidated or
threatened from testifying at federal hearing
e. An at-will employee can be fired by his e'er for any reason, except for an un-
Constitutional one

9/17 - PLEADING - Forbidding and Requiring Specificity in the Pleadings/Allocating a

Claim's Elements

Conley standard:
"A short and plain statement of the claim showing that the pleader is entitled to relief in order to
give D fair notice of what the claim is and the grounds upon which it rests."

Twombly - INSUFFICIENT FACTS

F: P (consumers of local telephone/internet services allege D's (Baby Bell providers) "upon
information and belief that D has entered into a k, combination, or conspiracy to prevent
competitive entry in their respective local tel. markets…And have agreed not to compete with
one another…" So, P alleges parallel conduct…Either an innocent explanation or a nefarious one
for D's conduct…D m. to dismiss 12b6…TC grants…Cir. Ct. reverses citing Conley…

1. SCOTUS
a. P's complaint does not set forth a single fact in context that supports an
agreement…
b. Okay there is parallel conduct…What is "plus" factor?
c. H: "We do not require heightened fact pleading of specifics, but only enough facts
to state a claim to relief that is PLAUSIBLE on its face…Need to nudge the claim
across the line from conceivable to plausible
d. Conclusory allegations are insufficient…Anti-trust complaints require more than
"formulaic recitation of the elements."
e. Claim cannot be solely couched in conclusions, and fail to suggest issue is raised
above anything but mere speculation
f. P argues
i. R8a2 - Short and plain statement
ii. R8e - Pleadings must be construed as to do justice
iii. R1 - "the just, speedy, inexpensive determination of every action"
g. If one wants to distinguish Twombly…Anti-trust case with very expensive
discovery
h. Erickson refuses to apply Twombly in a civil rights case…Says specific facts are
not necessary…Claim only needs to give D fair notice of what the claim is…And
the grounds upon which it rests…
2. in Bell Atlantic you had a set of allegations in which in effect it was an either-or choice. There were two
possibilities consistent with the allegations in Bell Atlantic. One was a conspiracy possibility, one was a
 lawful parallel conduct possibility. And there just wasn't any way to pick one as being a more probable
interpretation of what they were getting at.

1. Iqbal builds on Twombly, and applies it to a context outside of the anti-trust arena:
a. Under Fed. R. Civ. P. 8(a)(2), a pleading must contain a short and plain
statement of the claim showing that the pleader is entitled to relief. The
pleading standard Rule 8 announces does not require detailed factual
allegations, but it demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation. A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will
not do. Nor does a complaint suffice if it tenders naked assertions devoid of
further factual enhancement. To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face. A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Where a complaint pleads facts that
are merely consistent with a defendant's liability, it stops short of the
line between possibility and plausibility of entitlement to relief.
b. Fed. R. Civ. P. 8 marks a notable and generous departure from the hyper-
technical, code-pleading regime of a prior era, but it does not unlock the
doors of discovery for a plaintiff armed with nothing more than conclusions.

c. Even if the complaint's well-pleaded facts gave rise to a plausible inference that
Iqbal’s arrest was the result of unconstitutional discrimination, that inference
alone did not entitle him to relief since his claims rested solely on their ostensible
policy of holding detainees categorized as “of high interest,” but the complaint
does not contain facts plausibly showing that their policy was based on
discriminatory factors.

d. The Court rejected three of Iqbal’s arguments. First, the Court found that Iqbal's
claim that Twombly should be limited to its antitrust context was not supported
by that case or the Federal Rules. Second, the Court found that Rule 8's pleading
requirements need not be relaxed based on the Second Circuit's instruction that
the District Court cabin discovery to preserve petitioners' qualified-immunity
defense in anticipation of a summary judgment motion. Third, the Court found
that Rule 9(b), which requires particularity when pleading "fraud or mistake" but
allows "other conditions of a person’s mind [to] be alleged generally," did not
require courts to credit a complaint's conclusory statements without reference to
its factual context.

e.

Swierkiewicz - Must a complaint in an employment discrimination lawsuit contain specific facts establishing a
prima facie case of discrimination?

Conclusion: 
No. In a unanimous opinion delivered by Justice Clarence Thomas, the Court held that an employment discrimination
complaint need not include specific facts establishing a prima facie case under the framework of McDonnell Douglas
Corp. v. Green and instead must contain only "a short and plain statement of the claim showing that the pleader is
entitled to relief," pursuant to Rule 8(a)(2) of the Federal Rules of Civil Procedure. Justice Thomas noted that the
prima facie case operates as a flexible evidentiary standard and not a pleading requirement for discrimination cases.
"Under the Second Circuit's heightened pleading standard, a plaintiff without direct evidence of discrimination at the
time of his complaint must plead a prima facie case of discrimination, even though discovery might uncover such
direct evidence," wrote Justice Thomas. "It thus seems incongruous to require a plaintiff, in order to survive a motion
to dismiss, to plead more facts than he may ultimately need to prove to succeed on the merits if direct evidence of
discrimination is discovered."

Special cases; special pleading rules

Stradford - FRCP 9(b) - Specificity in fraud claims

F: Dr. (P) buys insurance from D…Doesn't pay…Policy lapses…Flood damages to P's office…
Policy resumes…After 10 days P files claim and receives $150k…D pays…P amends his claim
to ask for $1.4mil…D says, "what the fuck?!?!"

2. D counter-claims, alleging amongst other things fraud…"P in a scheme to defraud D…"

Basically means, "you lied"
3. P m. to dismiss under R9(b)…D's claim fails for specificity…Need to state
w/particularity the "time, place, and nature" of the alleged fraud - Who, what, where,
when, how
4. District Court - Grants w/o prejudice…FRCP 15(a) - Leave to amend freely granted
when justice so requires
5. D's claims insufficient under 9(b) b/c purpose of the rule is to afford litigant accused of
fraud fair notice of the factual ground upon which claim is based on…Need to provide D
exactly which statements or aspect of his claim on the policy they allege to be false

Allocating the elements of a claim

Which elements of the claim must be part of the complaint, and which must be part of the
answer? This is important b/c as a general rule, whichever party has the burden of pleading an
issue also has the burden of producing evidence to demonstrate that allegation

If the trier of fact is unsure who is telling the truth, the outcome of a case may turn on who has
the burden of persuasion, and that normally follows the burden of pleading

Jones v. Block
F: P injured while in prison…Sues D prison under USC 1983 w/o pleading exhaustion of
administrative remedies…Civil rights statute…But prison litigation reform act (PLRA) makes it
law a prisoner needs to exhaust prison grievance remedies before initiating a lawsuit…D 12b6
m. to dismiss/failure to state claim

1. D says P has to plead exhaustion, and thus prove it

2. P says exhaustion is an affirmative defense
3. TC - m. to dismiss granted…Cir. Ct. - Affirmed
4. SCOTUS - reversed…Exhaustion under USC1983 is an affirmative defense
5. PLRA requires exhaustion, but says nothing about who needs to plead it…
 6. Following Eisinger's rationale:
a. Rule - No exhaustion under 1983
b. PLRA - No exhaustion specified
c. Habeas corpus?
d. The PLRA is silent on the issue of whether exhaustion must be pleaded by P or by
D as an affirmative defense…Strong evidence that the usual practice should be
followed…Usual practice under the FRCP is to regard exhaustion as an
affirmative defense
e. Policy basis - Who is the proper decision make to change rule-making
procedures? The legistlature…

9/21 - PLEADINGS - Ethical Limitations/Responding to the Complaint

R.11 - SCOTUS - "It is now clear that the central purpose of R.11 is to deter baseless filings in
district court and thus, consistent with the Rule Enabling Act (28 USC 2072(b) - provides the
Rules shall not abridge, enlarge, or modify any substantive right)...And its grant of authority,
streamline the administration and procedure of the federal courts."

Walker - R.11/Sloppy Lawyer case

F: P (of which atty Walker is representing) files suit in federal court…Alleging breach of duty
and other state laws…P (SD resident) sues Norwest (MN resident), plus numerous other Ds…In
federal court on diversity - FRCP 8a1…Complaint alleges some Ds are citizens of different
states…Obviously need complete diversity for federal SMJ…

1. D Norwest writes P atty to inform him the complaint lacks SMJ on its face…Asked to
dismiss, and warned if it did not, D would seek sanctions, including atty fees.
2. P atty does not respond…D files 12b1 m. to dismiss for lack of SMJ, as well as R.11
sanctions for atty fees…
3. It's P's burden to plead complete diversity…And P's atty says finding citizenship of all
the D's would be more trouble than it is willing to take…
4. P is allowed to amend complaint! But chooses not to, instead telling court to pick and
choose which D's to throw out…Dis. court is not obliged to do Massey's research for
him…
5. P atty attempts to argue "woe is me" financial conditions & sanctions should not be
awarded, but b/c he never argued that point before the Dis. ct….He waived that right…
6. FRCP 11c3 - Court can sua sponte w/o another party's request….Judge can ask a party to
show it didn't violate R.11b
7. 11c5a - Can't sanction a party for mistakes of law

Christian case - Mattel

F: 1990 P decides to create doll…1996 files copyright claim…Takes on atty Christian…P
alleges D infringes on P's copyright…Alleges $2.4bil in damages…D (Mattel) copyright on
Barbie from '91 and '76…D moves for sum. jdt. and R.11…Serves P with complaint and R.11
motion…

1. TC grants sanctions in excess of $500k

 2. Cir. Ct. overrules
3. R.11 - Only permits a trial court to sanction an atty for conduct regarding pleadings,
written motions, and other papers that have been signed and filed in a given case…Does
not authorize sanctions for discovery abuses and misstatements made to the court during
an oral presentation.
4. Conduct in depositions, discovery meetings of counsel, oral reps at hearings, and
behavior in prior proceedings do not fall within the ambit of R.11
a. Filed bad complaint? Y
b. Throws doll @ meeting? N
c. Behaves badly at deposition? N
d. Behaves badly in another case? N
e. Misreps. to the court in sum. jdt.? MAYBE if he advocated mistruths to the court
f. False statements of law? Y
5. TC has discretion to sanction using R.11 within bounds of "sufficient to deter"…But
cannot use R.11 to sanction for counsel's action that falls outside of its scope

Responding to the Complaint

Default - "Do Nothing"

1. Complaint can result in defaults for one of two reasons

a. Hiring lawyer to defend a claim is not a sensible move if the outcome is pre-
ordained
b. Served party either does not realize it has a defense or can't afford to hire a lawyer
2. FRCP R4d - Waiver of service
3. FRCP R4c - How to serve
4. FRCP 4m - Time frame of service - 120 days to serve D after complaint filed…But P
may show good cause for the failure
5. FRCP 12a1 - Time to serve a response
a. 20 days to respond after being served personally with complaint OR
b. If R4d waiver of personal service…60 days after the request for waiver was sent
out

Pre-Answer Motion - Dilatory Pleas - "Slows down" pleading

FRCP12b m. to dismiss
1. Lack of SMJ
2. Lack of PJ
3. Improper venue
4. Insufficient process
5. Insufficient service of process
6. Failure to state a claim upon which relief can be granted
7. Failure to join indispensible party under FRCP19

FRCP 12g
1. Can combine all the 12b motions to dismiss
 2. Can only make one motion to dismiss
3. 12b2-5 CAN BE WAIVED IF NOT IN THE FIRST RESPONSE (MOTION OR
ANSWER) TO THE COMPLAINT!
4. 12b1 is preserved, and if the court determines at any time it lacks SMJ, it must dismiss
the action
5. 12b6/12b7 - Preserved
a. Both can be raised in a FRCP 12(c) m. for jdt. on the pleadings
b. Can be raised in any pleading allowed under 7(a)
c. Can be raised at trial

FRCP 7a - Only these pleadings are allowed

1. Complaint
2. Answer
3. Answer to a counterclaim designated as a counterclaim
4. Answer to a cross-claim
5. Third-party complaint
6. Answer to a third-party complaint
7. If court ordered, a reply to an answer
d. 7b - Requests for court orders must be motions made in writing, stating with
particularity the grounds for seeking the order, AND state the relief sought

FRCP 12f- Motion to strike

1. Challenges a part of a pleading that fails under the substantive law, even though the rest
of the pleading states a claim or defense
2. Acts like 12b6 m. directed at a single allegation
3. Courts will also grant such motion if allegations the complaint have no relation to the
case or are unnecessarily confusing; if the complaint is overly long and detailed; or if
allegations are unnecessarily derogatory

FRCP 12e - Motion for a more definitive statement

1. At common law served as a form of discovery not otherwise permitted
2. Rarely and almost never successfully invoked today - Now it's either 12b6 or discovery

FRCP 12c - m. for jdt. on the pleadings

 1. Match up the allegations of the complaint and those of the answer, and decided whether
jdt. for the P should be entered on the basis of the pleadings
2. P is a student challenging on 1st Amend grounds the requirement of a daily pledge of
allegiance…D most likely admits most of the factual allegations, differing only on the
conclusion that the requirement violates 1st Amend…12c m. for jdt. on the pleadings if
the court thinks the law clear and that further factual development would not assist in
deciding case

Answer - Traverse - Denials

FRCP 8b - Defense; Admissions and Denials

1. 8b2 - Denial must fairly respond to the substance of the allegation
2. Answer meets each factual allegation of the complaint
a. Admit
b. Deny
c. Lacks knowledge
3. 8b6 - Any allegation that is not denied is deemed admitted
4. 8c lists affirmative defense
5. ANSWER MUST ADMIT THE PART THAT IS TRUE AND DENY THE REST

Zielinski - Answers & Specificity of denials

F: P injured by forklift on dock…P sues D (PPI) thinking it owns dock…Turns out, 1 year earlier
PPI sold and leased back the business on the dock to Carload Cont….PPI gets P's complaint,
generally denying all allegations…Technically true, but D never tells P that in fact the
allegations are not true b/c D doesn't own forklift that hit P!

1. During lead in to litigation, the stat. of limitations to sue ACTUAL owner expires
2. But before, PPI had made statements in interog's that were misleading to P
3. After stat. of lim. runs out, PPI wakes up and says it's not actual D b/c it doesn't own
forklift…BUT INSURERE OF PPI AND ACTUAL D IS THE SAME
4. And at this point in litigation the insurer has taken over
5. Court orders jury instruction to say that PPI is owner of forklift, when in fact it is not
6. PPI's denial was TOO specific
a. 8b2 requires a party to fairly respond to the substance of the allegations
b. Must unpack a complaint with your answer
c. "When a pleader in good faith intends to deny only a part or a qualification of a
complaint/averment, he shall specify so much of it as is true and material and
shall deny only the remainder"
d. Specific denial of part of allegation paragraph and specific admission of other
parts would have warned the P he had sued the wrong D
7. P in this case opened himself up to trouble…Because his complaint was so general, he
allowed a compound denial by D

9/24 - PLEADING - Affirmative Defenses/Reply/Prejudice/Amended Pleadings/Relation

Back
Affirmative Defenses - FRCP 8c

In responding to complaints, include all your affirmative defenses and specifically admit and
deny

FRCP 12d - Matters outside the pleadings

1. 12b6 and 12c motion have matters outside the proceedings presented and not excluded by
the court, the motion must be treated as one for summary jdt. under FRCP 56.

EVIDENCE CONCERNING A WAIVED DEFENSE IS INADMISSABLE

Reply

Pg. 401
1. Manufacturer would file an answer with a denial…Manufacturer could also file a cross-
claim if it wanted to assert the accident was dealer's fault
2. Failure to state a claim can be raised at trial
3. 12h2 you can raise failure to state a claim at trial

Amended Pleadings/Prejudice/Relating Back

FRCP 15a1 - Amend as a right

FRCP 15a2 - m. to the court for leave to amend - The court should freely give leave when
justice so requires

Beeck v. Aquaslide
F: P hurt on waterslide at company party, sues D. 3 different insurance investigations
corroborate that D in fact manufactured slide in question. After P’s Iowa personal injury claim
statute of limitations expires, owner of D visits slide in question, at the behest of the P for
deposition. Turns out, the slide in question was not manufactured by D.

D 15a m. to amend answer to deny manufacturing the slide

1. FRCP 15a2 test - Courts favor amending as a basic proposition - Also "party ought to be
afforded an opportunity to test his claim on the merits - So if 15a amendment needs to
show:
a. Undue delay or lack thereof
b. Good faith
c. Lack of prejudice
i. Court says P's are not unduly prejudiced b/c causes of action might arise
out of fraud claims/k claims…Chain of distribution and entry of non-
Aquaslide slide might allow any of these claims, and the stat. of
limitations would not have run
2. D then FRCP 42b m. for a separate trial on one separate issue…Whether D made slide
in question…TC for D…
 3. R.1 - Just/speedy/efficiency served by a separate trial - Evidence of P's substantial injury
may have been prejudicial to D's claim of non-manufacture, thus best to try the matters
separately
4. Policy considerations in a tort action - Who is the best "least cost" provider?"

Why do we have statutes of limitations?

1. Protect against stale evidence
2. Repose - It's unfair to hold a claim over a D's head

FRCP 15(c) - Relates back - Relation back:

1) An amendment to a pleading relates back to the date of the original pleading when:
i. The law that provides the applicable statute of limitations allows relation back
ii. The amendment asserts a claim or defense that arose out of
conduct/transaction set out or attempted to be set out in the original pleadings
iii. The amendment changes the party of the naming of the party against whom a
claim is asserted, if R. 15c1b is satisfied AND if within the R. 4m period provided
for serving the summons and complaint, the party to be brought in by
amendment:
1. Received such notice of the action that it will not be prejudiced
2. Knew or should have known the action would have been brought
against it, but for a mistake concerning proper parties’ identity

R15c - Original claim…And statute of limitations has run…New claim barred by s/l…Can P
amend? Does new claim "relate back"…i.e. same transaction or occurrence?

Moore case
F: Informed consent v. negligence…P done in by her original complaint. See “sloppy lawyer” section
bottom pg. 410…Nothing in original complaint gives D notice there was a possibility of negligence claim
down the line…P only alleged "informed consent"…In fact P said D acted very well in dealing with
medical issues once clot was discovered…Informed consent is all pre-surgery information…Negligence
would have arose out of D performance of surgery and post-op care of P…Nothing in original complaint
that said anything about that…M. to amend denied…Stage of pleadings: After m. for sum. jdt. by D…

1. Notice controls: Can't go from specific to broad in terms of complaints…But vice versa is
okay if we're outside the statute of lim.
2. Key is timing as well…P filed her complaint the day before s/l in Georgia ran out
3. Informed consent to negligence is specific to broad…No notice…
4. S/L AIDS IN UNDERSTANDING - We want to provide D repose…If Dr. gets sued
arising from surgery, and the first complaint is just for informed consent, Dr. breathes a
sigh of relief
5. Why is Azarbal different?
a. Original claim was negligence, then P m. to amend for lack of informed
consent…Broad to specific

Bonerb case
F: Original suit for slip and fall…After changing council, P m. to amend with a new cause of action/legal
theory of case…Negligence of counseling duties…Look to notice again…pg. 412 “nucleus of facts”…Case
turns on wording…”D failed to properly supervise and/or instruct P”…From this language D had
sufficient notice of the alleged facts surrounding the incident, which would alert any reasonable person
to the possibility of a negligent performance of professional duties suit under the previously claimed set
of facts.

1. Why is Bonerb distinguishable from Moore?

a. "Operative facts" test is not very helpful
b. Stage of litigation is
c. Facts that give rise to complaints and the wording of the complaints have to be
sufficient to give D notice of possible amended claim
d. Parties still have ample time for discovery…Deps of D's personal have yet to be
taken, so D can respond to new legal theory
e. Also - Complaint frames whether or not new claim relates back - Several
instances of D's negligent conduct, including failure to "properly supervise and/or
instruct P"
f. An amendment which changes the legal theory of the case is appropriate if the
factual situation upon which the action depends remains the same and has been
brought to the D's attention BY THE ORIGINAL PLEADINGS!
g. Fall back rule is to rely on the s/l
i. WHERE THERE ANY FACTS TO PREVENT P'S REPOSE? If the
answer is yes, you can relate back, generally

DISCOVERY

The scope of discovery is as follows - Parties may obtain discovery regarding any NON-
PRIVILEGED matter that is relevant to any party's claims or defenses. Relevant information
need not be admissible at the trial if the discovery appears reasonably calculated to lead to
the discovery of admissible evidence.

What is relevant? - A PIECE OF INFORMATION IS RELEVANT TO A LEGAL

PROPOSITION WHEN THE INFORMATION TENDS TO PROVE OR DISPROVE
SOMETHING THE GOVERNING SUBSTANTIVE LAW SAYS MATTERS

1. Purposes
a. Develop facts
b. Promote settlement
c. Prepare for FRCP 56 sum. jdt.
d. Narrow issues for trial
i. Illegitimate reasons that should lead to sanctions:
1. Harass
2. Add to costs
2. Scope - Limitations on what's discoverable
a. Relevance FRCP 26b1
 i. Discovery must be relevant to complaint or answer and the claims and
defenses raised in each
1. Davis case:
a. Allows discovery into ("of") discrimination by other
employees at the same plant in a limited time period b/c
information is relevant to help P establish pretext
b. D is going to deny allegations and say promotions were
based on performance - Bad workers
c. P will allege pretext - Thus relevant
2. Steffan
a. Refuses discovery into homosexual conduct b/c irrelevant
to the claim and defense brought as to whether discharging
a midshipman for homosexual status was permissible
b. Also a 5th Amend right against self-incrimination objection
to depose
i. Procedural posture - D made R37 m. to compel - P
refused…TC dismissed case…Hence appealable
3. FRCP 26b1 - Relevance can be enlarged to ecompass information
relevant to the subject matter of a lawsuit with court permission for
"good cause"
ii. Privilege
1. Atty-client privilege definition: Only thing confidential are
communications between client and counsel intended for legal
advice
a. Upjohn - In a corporate setting, client is broader than the
"control group" of top management - Includes employees
who exchanged confidential information with counsel
i. Rationale - "Any level employee can, by actions
within the scope of their employ, embroil a
company in serious legal difficulties - Control
group tests frustrate the very purpose of the
privilege by discouraging the communication of
relevant information by employees of the client to
attorney's seeking to render legal advice to the
client corporation"
b. Confidential communications (what did you tell your
counsel about the accident?) are PROTECTED
c. Facts (how fast were your driving?) are not
2. 5th Amend
a. Protects against self-incrimination in a CRIMINAL
proceeding only
b. In Steffan, the P feared admission of homosexual activity
could trigger criminal prosecution under the "then-
Constitutional" anti-sodomy laws
3. Waiver
a. A client can waive any privilege
 b. FRCP 30c2 Atty can direct client not to answer to avoid
waiver - A person may instruct a deponent not to answer
only when necessary to preserve a privilege or enforce a
limitation ordered by the court
c. FRCP 26b5B - Protection against inadvertent waiver
iii. Work Product (Trial Preparation) 26b3
1. Absolutely shields from discovery
a. Atty's mental impressions
b. Conclusions, opinions, legal theories concerning the
litigation
2. Permits limited discovery of work product (other than "mental
impressions," which are never discoverable) ONLY IF party
seeking work product shows:
a. Substantial need for information AND
b. FRCP 26b3Aii Unobtainable w/o undue hardship
3. Hickman
a. D atty's work product (statement's from witnesses equally
available to opposing counsel/atty's memos w/his thought
about litigation/oral recollections from interviews with
witnesses & survivors) not discoverable
b. Underlying fact are discoverable
c. Rationale
i. Protect against lazy lawyers
ii. Encourage sharp practices
iii. Don't want atty's to be witnesses in trials
iv. Common law trial is and always should be an
adversary proceeding
d. Codified in FRCP 26b3
iv. Privacy
1. FRCP 26c1 protects against "annoyance, embarrassment,
oppression…"
2. Stalnaker case
a. P alleges sex. harassment against Kmart employee
b. Seeking information from other employees regarding
pervasive sexual activities and that employer should know
c. Information about consensual sexual relationship of non-
party witnesses not discoverable unless D/e'ee initiated
contact
d. Remedy - Allow discovery and subject it to a protective
order limiting discovery to the parties to the litigation
v. Undue burden or expense - FRCP 26c1
1. All discovery is burdensome and expensive - Key is for objector to
show UNDUE burden/expense
2. Remedy? Share costs (Zubulake - Court first orders shared costs of
lost back-up files)
3. FRCP 26c1g - Trade secrets receive similar protection
 vi. Non-testifying experts
1. Discovery from consulting expert is like work product…Requires
showing of "exceptional circumstances" and "impracticable" to
obtain information by "other means" FRCP 26b4B
a. Thompson
i. Allows discovery of non-testifying shrink's report
taken 10 days after termination before D knew
litigation was a possibility in case where P claims
damages for emotional distress - D couldn't obtain
essential information by other discovery means
1. Timing as always is important - P fired 6/92
and get shrink report 10 days later - But
doesn't file suit until 9/93
2. And fact that P didn't disclose information in
report leads one to believe it is not helpful to
her case
ii. Chiquita
1. Court refuses discovery of non-testifying
expert relating to condition of vessel when
D had equal or superior access to same
information ON ITS OWN SHIP
2. Amount of bananas left on dock should have
given notice that litigation was possible
iii. Rationale - Same as work product…Candid
assessment from consulting experts encourage
settlement
vii. Special limits on e-discovery - 26b2B
1. Specific rule on cost/benefit of e-discovery unless good cause
viii. Other objections
1. Timing too soon - Before discovery conference FRCP 26d
2. Too late -after court's pretrial order setting discovery cut-off
3. Limits w/in the rules
a. FRCP 33 - Too may interrogatories
b. 30d - Too many deps or deps too long
c. 26b2A - Court may limit the number of Requests for
Admissions/requests for prod. of documents/requests for
admissions not directed at a party
d. 26c - Unreasonably cumulative or duplicative; obtainable
from source that's more convenient/less burdensome or
expensive; costs outweigh the benefits
4. Objections from counsel to the form of a question in an
interrog/deposition: Vague, confusing, compound, etc.
3. Stages of Discovery
a. FRCP 26a1Mandatory fact disclosure (post R26f discovery conference) -
UNLESS INFORMATION IS TO BE USED SOLELY FOR IMPEACHMENT,
parties must disclose:
 i. Favorable fact witnesses
ii. Favorable documents
iii. Damages calculation
iv. If they have any insurance
b. Discovery w/o specific showing (no court involvement)
i. Interrogatories to parties (limited to 25) R33
ii. Requests for production of documents and entry onto land (to parties) R34
1. FRCP 34a1A defines document
2. If requesting documents not included in definition, such as drafts,
or metadata of electronically generated or stored documents
(codes/blind cc's/spread sheet background information),
REQUEST THESE SPECIFICALLY, AND EARLY - Lesson
from Aguilar
3. FRCP 34d/R45 - Subpoena duces tecum - Party can get documents
from non-parties
iii. Requests to admit R36 - Court may limit number 26b2A
iv. R30 Depositions (10 per side w/o leave of the court, 1 per day - Limit of 7
hours per deposition)
1. To parties via notice
2. R45 To non-parties via subpoena
3. R30b6 To company, for person with knowledge on a designated
subject
v. Opposing side must respond to written discovery within 30 days and
specify all objections
vi. R26e Parties have a duty to supplement disclosures and written discovery
vii. PARTIES DO NOT HAVE A DUTY TO SUPPLEMENT
DEPOSITIONS
c. Expert witnesses
i. R26a2 Testifying experts must be disclosed, along with written report
ii. R26b4a A party may take opposing party's testifying expert's deposition
d. Discovery with a further showing (Magistrate judge, normally)
i. R 26b1 Relevance to SUBJECT MATTER
ii. More than 25 interrogs; impose limit on number of admissions; get extra
depositions
iii. R 26b3Aii Work product, with showing of "substantial need" AND
"undue hardship"
iv. R26b4B Discovery of non-testifying expert with a showing of
"exceptional circumstance" and "impracticability"
v. R35 Medical examination
4. Ensuring Compliance; Sanctions
a. PARTY SEEKING DISCOVERY MUST FIRST CONFER, and then may bring
m. to compel under R37
b. Party resisting disco. may object or CONFER and then bring motion for
protective order under R26c
c. R37a5 Court must make party who started discovery mess pay costs and fees for
bringing motion, unless substantial justification for resisting discovery
 d. R37b2A If a party DISOBEYS A COURT ORDER, sanctions may be severe,
including requiring admission, striking a claim or defense, dismissing the case, or
entering a default jdt.
e. R37e Limit on sanctions for e-discovery lost under ROUTINE, GOOD-FAITH
OPERATION of an electronic information system
f. Aguilar
i. No sanctions on D losing metadata when P fails to request it early
ii. P only requested metadata "in passing" near the end of the allotted time
for discovery
iii. P makes argument that information leading to evidence of probably cause
is relevant - Court says no - D's already conceded they lacked probable
cause in searches - Not relevant to claims or defenses
g. The supreme court disagreed with the city's contention, holding that if the city
maintained a public record in an electronic format, then the electronic
version, including any embedded metadata, was subject to disclosure under
Arizona's public records laws, pursuant to Ariz. Rev. Stat. § 39-121 (2001).
The supreme court concluded that when a public officer used a computer to
make a public record, the metadata formed part of the document as much as
the words on the page.
h. Spoliation
i. Test: Sanctions available when -
1. Party has duty to preserve
2. There is some fault (ranging from ordinary negligence to
intentional/willful conduct)
3. Relevance of evidence to pending litigation (Zubulake)
ii. Court uses its inherent power to sanction
iii. Cases applying test:
1. Silvestri
a. Court does not abuse discretion when it dismisses case
when P failed to make Chevy car available to GM after P's
own experts had examined vehicle
b. Car was the MOST IMPORTANT piece of evidence in the
case, and thus the destruction of the car was "highly
prejudicial" to GM
2. Zubulake (P) test for adverse inference jury instruction
a. UBS (D) had duty to preserve - Y
b. D had at least a negligent state of mind - Y
c. Evidence spoliated in support of P's gender bias claim - No
d. But court does order payment of costs relating to recovery
of lost back-up e-files

RESOLUTION W/O TRIAL

1. Default - FRCP55
a. Rule55: P can move for default jdt. (alternately a D who fails to respond to the
complaint can have a default jdt. entered against him)
 i. D can move to set aside jdt. under R55 OR motion for relief from jdt.
under R60
b. Substantial number of jdt.'s take this form. WHY?
i. If substantive law doesn't give D many defenses to a particular claim -
Hiring a lawyer may be pointless
ii. No meritorious defense
iii. D doesn't know that it does have a meritorious defense, or can't afford a
lawyer
c. Peralta (holding that just because a party has no meritorious defense doesn't mean
that a suit brought without notice is not a nullity - D's must have notice)
i. D had options - Pay off debt, implead, settle, etc.
2. Failure to prosecute (Involuntary Dismissal) FRCP41(b)
a. P files suit, does nothing
b. Provides for involuntary dismissal if "P fails to prosecute"
c. Footdragging that showed bad faith - dismissal justified
3. Voluntary Dismissal - FRCP41(b)
a. P can withdraw complaint and get a voluntary dismissal w/o prejudice
b. R41(a)(1)(A)(i): P can dismiss anytime before D answers
c. (ii): P can dismiss suit at any time if all parties agree
4. SUMMARY JUDGMENT (SUMJ) - FRCP56 (MIRROR JMOL/JNOV R50 infra)
a. TIME TO SHOW YOUR CARDS!
b. Device to provide a way to decide cases for which trial is not necessary and
would serve no purpose - NO DISPUTE OF MATERIAL FACTS
i. Purpose of trial is to resolve factual disputes - If there is no factual
dispute, there is no need for trial
ii. Can also be used to resolve individual claims in a multiclaim lawsuit or
claims against one party might be resolved
c. Purpose:
i. Avoid trial when there is nothing to try
ii. R1 - Trial is expensive, time-consuming, and unpredictable
iii. Narrow the issues for trial
1. R56(d) - Partial summary jdt. on some of the issues
iv. Promotes settlement
1. Gets parties in a position to settle once issues have been framed
v. Prepare for trial
1. Parties have made their list of facts that are not in dispute and more
importantly those that are
d. R56
i. Regulates SUMJ - Parties can bring a m. for SUMJ at any stage of the
proceedings…BUT not normally granted until adequate time for discovery
has commenced
ii. R56(c)
iii. Requires the entry of SUMJ, after adequate time for discovery, against a
party who fails to make a showing sufficient to establish the existence of
an element essential to that party's case, and on which that party will bear
the burden of proof at trial
 iv. Moving party can show NO GENUINE ISSUE OF MATERIAL FACT
AND that he is entitled to JMOL
e. R56(e): Affidavits
i. Must be made on personal knowledge
ii. Set out facts that would be admissible evidence
iii. And show that the affiant is competent to testify on matters stated
iv. R56(e)(2): Opposing party can't rely only on allegations or denials in its
own pleadings; the response must set out specific facts showing a genuine
issue for trial (can't promise future proof - SHOW YOUR HAND)
f. R56(f)(2)
i. Orders a continuance to enable affidavits to be obtained, depositions to be
taken, or other discovery to be undertaken
g. Where does adequate evidence come from?
i. Parties submit
ii. Affidavits: Sworn written statements
iii. Can't use the pleadings (not sworn)
1. If D failed to deny allegations they may be RELEVANT, but
generally courts look at the evidence submitted by parties in
affidavits
5. Process
a. Establish what the non-moving party has the burden of proving at trial - AND
THE STANDARD TO WHICH IT WILL HAVE TO PROVE THAT ELEMENT
b. Movant's burden: Identify portions of the record and show no genuine issue of
material fact exists, by either
i. DISPROVE NON-MOVING PARTY'S ELEMENT OR
ii. SHOW THAT A RATIONAL JURY COULD NOT FIND IN FAVOR
OF THE NON-MOVING PARTY ON THE ELEMENT ON WHICH
THAT PARTY HAS THE BURDEN OF PROOF
iii. Burden then shifts to the non-moving party to show there IS a factual
dispute
1. But that party must do more than show there is just some
"metaphysical doubt as to the material facts" - That party must
come forward with specific facts to refute the specificity of the
moving parties defense
2. The party opposing SUMJ need not establish that he will
ultimately prevail at trial
3. A party opposing a m. for SUMJ need not produce all of the
evidence it may have at its disposal, but need only show that
GENUINE issues of material fact exist to be tried. - Wright &
Miller, Fed. Prac. & Procedure: Civil
6. Houchens (holding that SUMJ should be granted when under an accidental death policy,
P can't show husband's death was accidental)
7. Celotex (holding that SUMJ should be granted b/c P can't establish any genuine issue of
material fact as to whether her husband was ever exposed to D's asbestos containing
product, which she would have had the burden of doing at trial; R56(c) = R50)
 a. Moving party always bears the initial responsibility for informing the district
court of the basis for its motion and identifying those portions of the record which
it believes demonstrates the absence of a genuine issue of material fact
i. Disprove the non-moving party's allegations OR
ii. Show the opposing party fails to make it showing on an element on which
it has the burden of proof
b. Burden then shifts to the nonmoving party to create a factual dispute
8. Bias (holding that since the P never came forward with any specific facts to dispute the
moving party's evidence of P's drug use, P failed to show there was a genuine issue of
material fact as to P's insurability, an element of damages that P would have to prove at
trial)
a. Need to do more than show some metaphysical doubt as to the material facts -
Come forward with specifics

CELOTEX BIAS HOUCHENS

Opponent’s burden at Celotex had a duty, they Show Bias was insurable Mr Hs death was
trial breached the duty, accidental
causation, and injury
movant’s burden on SJ we didn’t cause Mr. Cs Show bias was habitural Mr Hs death was non-
death (take on element and drug user evidence: died accidental OR Mrs. H
dispute) or Mrs. C cannot of overdose, teammates cannot carry her burden of
satisfy her burden of proof saw specific use proof to show Mr H death
(didn’t prove causation) was accidental
Opponent’s burden on Needs to create a factual Specific evidence that Bias Police records of accident
SJ to create factual dispute—supervisor’s was NOT a user, depose involving Mr. H
dispute testimony but must be an other teammates to show
affidavit that says Mr C they were bias, random
was exposed to Celotex drug user through expert
product OR that witness
Supervisor was in first
hand position that it is
more likely than not it was
Celotex’s product
RESULT Remanded for SJ GRANTED SJ GRANTED
determination under NEW
STANDARD

1. Judicial control over litigation

a. Sanders (where the district judge dismissed with prejudice the P's claim for failing
to comply with pretrial scheduling orders/m. in limine orders/timing and the like;
the 9th Circuit panel affirmed but split; the 9th Circuit sitting en banc sent the
parties back to square one)
i. Trial judge screwed up by allowing his clerk to take care of the pretrial
conference
ii. No hearing or notice to the affected party that he was running the risk of
getting his case totally dismissed
b. Test for dismissing a case for failing to follow a pretrial court order:
 i. Prejudice to the other side (don't want one side to have the advantage of
seeing the other side's work w/o there being a quid pro quo)
ii. Availability of lesser sanctions
2. R16(b) - Scheduling
a. Order - The district judge must issue a scheduling order:
i. After receiving the R26(f) discovery report; OR
ii. After consulting with the parties attorney's and any unrepresented parties
at a scheduling conference
iii. Time - The judge must issue the scheduling order as soon as practicable,
but regardless within the earlier of 120 after any D has been served with
the complaint OR 90 days after any D has appeared
iv. Contents
1. Scheduling order must limit the time to join other parties, amend
the pleadings, complete discovery, and file motions
2. Order MAY
a. Modify the timing of discovery disclosures
b. Modify the extent of discovery
c. Set dates for pretrial conferences and for trial
3. Modifying a schedule - A schedule may be modified for good
cause and with the judge's consent
b. Sanctions
i. General - Any sanctions authorized under R37(b)(2)(A)(ii-vii) if
1. Party/attorney fails to appear at a scheduling or other pretrial
conference
2. Is substantially unprepared to participate - Or does so in bad faith -
In the conference; OR
3. Fails to obey scheduling/pretrial order
ii. Imposing fees - Instead of or in addition to any other sanctions, the court
must order the party to pay reasonable expenses (including attorney's fees)
incurred b/c of any noncompliance with this rule
3. McKey (holding that the same standard for amending a party's legal theory at trial applies
as in the case of a party amending their pleading under R15(b) - Prejudice/delay/bad
faither)
a. Dissent says trial court has broad discretion to amend at trial when moving party
is more harmed by not allowing the applicable amendment than the other party
would have been had the amendment been allowed
b. Trial judge, through R16 pretrial conference, has powerful control over what
matters/issues will be litigated at trial

THE TRIER AND THE TRIAL

1. R38 - Right to a jury trial; demand

a. Right preserved - The right of a trial by jury as declared by the 7th Amendment is
preserved by the parties
b. Demand - On any issue triable of by a jury - Party may demand a jury trial by
 i. Serving the other parties with a written demand no later than 10 days after
the last pleading directed to the issue is served; AND
ii. Filing the demand in accordance with R5(d)
c. Specifying issues
d. Waiver; withdrawal
e. Admiralty Claims
2. R39(b) Trial by jury or by the court
a. Issues on which a jury trial is not properly demanded are to be tried by the court;
The court may, on motion, order a jury trial on any issue for which a jury might
have been demanded
3. R41(b) - see claim preclusion infra
4. R47 - Jury selection (Sec.1870 - 3 peremptory challenges as a matter of course, and all
challenges for cause or favor shall be determined by the court)
a. Examining jurors - Court may permit the parties/attorneys to examine prospective
jurors or may do so itself…If the court examines itself, it must permit the aprties
or their attorney's to make any further inquiry it considers proper, or must itself
any of their additional questions it considers proper
b. Peremptory challenges (see Sec.1870 supra)
c. Court may excuse a juror for good cause
5. R48 - At least 6 and no more than 12 members of a jury; Unless otherwise stipulated by
the parties, the verdict must be unanimous and returned by at least 6 members of the jury
6. R49 - Special verdict (see claim preclusion infra)
7. R57 - Declaratory Jdt. (governed by Sec.2201) - Existence of another adequate remedy
does not preclude a declaratory judgment that is otherwise appropriate…The court may
order a speedy hearing of a declaratory jgt.
8. Sec.2201 - Any court of the US may declare the rights and other legal relations of any
interested party seeking such declaration, whether or not further relief is or could be
sought…Any such declaration shall have the force and effect of a final jdt. and shall be
reviewable as such
9. R50 (see claim preclusion infra)
10. R59 (see claim preclusion infra)

1. Reid (holding that since it was essential for P to show that by a preponderance of the
vidence that the cow entered onto the racks by broken down fence instead of through an
open fence, and the P could offer no specific evidence to support that proposition, as a
matter of law a judge must overturn a P verdict, as a rational jury could not infer from the
facts presented D was liable)
a. Could have been gate OR fence; speculation as to a matter of material necessity to
P's case can't be based on speculation
b. But see Norton supra (meeting burden of proof by offering expert testimony from
which jury could draw an inference favorable to P; expert witness testifying that
the lack of a device which could have prevented the accident is sufficient for a
jury to find for P on that issue, of which the P had the burden of proof)
2. Chauffers (holding that in an action that encompasses characters of both legal and
equitable nature, if the remedy being sought and the issue being tried is one that
 historically would have been brought in a court of law, a party's 7th Amend. right to a
jury trial is preserved)
a. Look to statute first to see if right to the jury is expressly stated
b. But barring that, the courts will give you a jury if you are seeking a legal remedy
c. Test will be to analogize the "nature of the issues" to its historic match
i. Brennan's dissent - Cut to the chase…What are the REMEDIES
SOUGHT?

Jury to be preserved No jury

Suits at common law Equity = equitable remedies
$ damages Injunctions/specific performance
Replevin Reformation/rescission
Ejectment Vacation of arbitration award
Attorney malpractice action Breach/trustee duty
Restitution
Breach/fiduciary duty

3. Amoco Oil (holding that when assessing a D's demand for a jury trial as framed by the
main claim, the court must consider whether the claim comprised any legal claim seeking
relief as such…If we find any such claims - Court must vacate an equitable jdt. UNLESS
the court is persuaded the P would be entitled to direct verdicts on legal claims)
a. The jury will go first in a mixed remedy situation - So the jury will decide the
merits and as a matter of form equitable relief will follow
b. Amoco test:
i. Where there any claims on which the party was entitled to a jury trial?
ii. Could a rational jury have found for that party on those claims?
1. Thus if this is a DV/JMOL for the opposing party situation, it
would be a harmless error to prevent the party from having a jury
2. But you don't have to prove either party would win, just that a
rational jury could find either way
4. Boston Children's First (holding that because a reasonable member of the public might
interpret the judge's comments in the paper as a preview of a ruling on the merits of a P's
motion AND the comments came before D's response to that motion, and b/c of the
particular cautious nature a judge should exhibit in newsworthy and high tensions cases,
an objective member of the public could find a reasonable basis for doubting the judge's
impartiality)
a. Rule: Disqualification of a judge is appropriate only when the motion is supported
by a factual basis, and when those facts assert to provide what an objective,
knowledgeable member of the public would find to be a reasonable basis for
doubting the judge's impartiality)
5. Thompson (holding that since the question as it pertains to the particular juror is whether
her truthful belief would prevent her from giving due weight to evidence and following
the judge's instructions…And the trial judge did not push the juror to give
 UNEQUIVOCAL assurances as to that question, the juror should be struck FOR CAUSE,
and a new trial should be ordered)
a. We believe a judge can be impartial in a way ordinary jurors cannot be
b. Judge has to ask juror DIRECTLY as to his bias, not following up to the entire
panel
c. Federal court - Judge operates voir dire on behalf of questions submitted by the
attorneys

JMOL
1. Chamberlain (holding that evidence from the P's witness who was not in position to see
the crash which P was alleging caused his injuries is insufficient to show by a
preponderance of the evidence that a crash occurred)
a. Court of appeals held that the evidence of P's witness was a question of fact
because it was dependant on the credibility of the witnesses testimony
b. Court of appeals dissent says P's witness is "incredible" as a matter of law…That
it is irrational to believe him
c. SCOTUS - Where proven facts give equal support to each of two inconsistent
inferences…In which event, neither of them being established, JMOL must go
against the party upon whom rests the burden of sustaining one of these
inferences as against the other before he is entitled to recover.
d. When there is a lack of evidence to establish a genuine issue of fact, JMOL must
go against the party upon whom the burden of proof rests.
2. Did SCOTUS get it right? P's witness is the only one standing up against the employer to
say there might have been a crash - If it is such a credibility question, it would be a matter
for the jury
3. SCOTUS also ignores the evidence offered by P's witness about speed of the cars, which
may be substantial towards a crash occurring, right?
4. Boeing Co. (holding that "if there is substantial evidence opposed to the motions - That
is, evidence of such a high quality and weight tat reasonable and fair minded men in the
exercise of impartial judgment might reach different conclusions, the m. for JMOL must
be denied)

New Trial
1. Lind (holding that in a matter involving material that is simple and easily comprehended
by any intelligent layman, and where the jury's primary function as trier of fact is to
ascertain which witnesses testimony is to be believed, a trial judge who directs a verdict
opposite of that found by the jury and orders a new trial abuses his discretion by
substituting his jdt. for that of the jury on that issue)
a. A trial judge can't overturn a jury verdict simply b/c he, as a juror, would have
voted differently than the actual jury did
b. R59 test
i. Error of law
ii. Against the great weight of the evidence
2. Combining both R50/JMOL & R59/m. for a new trial allows the whole ball of wax to be
appealable
Remittitur/Additur
1. In federal courts, additur is un-Constitutional

Reexamination
1. Peterson (holding that because the federal rules of evidence expressly prohibit a trial
court from receiving testimony from jurors about whether they understood jury
instructions or not and further bars applying that information to the impeachment of a
jury verdict, a new trial on just such grounds is an abuse of the trial court's discretion)
a. Trial judge cannot grants RJMOL sua sponte
b. Judge cannot base his decision to do so on information obtained during ex parte
conversation with jury in violation of the Tanner rule, flatly prohibiting the
admission of juror testimony to impeach the verdict

APPEALS
1. Appeals must be w/in 30 days after the entry of final jdt.
2. Final judgment rule - Sec.1291
a. In federal court you can't appeal until there is a FINAL JUDGMENT
b. A final judgment is one which ends the litigation ON THE MERITS and leaves
nothing for the trial court to do but execute the judgment
i. Housekeeping and the like (filing/ordering, etc.)
c. If after making an order, the trial judge has NOTHING LEFT TO DO ON THE
MERITS of the case, then it is a final judgment
d. Liberty Mutual (holding that because the granting of a partial SUMJ motion (in a
cause of action setting forth a single claim/single theory based on one set of facts)
deciding D's liability still leaves unresolved the prayers for relief, it is by
definition interlocutory and thus not appealable under Sec.1291)
3. Interlocutory orders are not appealable
a. Interlocutory: Provisional/interim - Action which intervenes between the
beginning and the end of a lawsuit or proceeding to either decide a particular
point or matter that is not the final issue of the entire controversy or prevent
irreparable harm during the pendency of the suit
b. Apex Hosiery (holding that discovery orders are not appealable; decisions that
affect the rights only of the parties to the LITIGATION are interlocutory)
4. Exceptions to the final judgment rule
a. Practical finality
i. Lauro Lines (denial of a m. to dismiss based on a forum selection clause
vindicable at the final judgment/appeal stage, and thus unappealable as an
interlocutory order)
ii. Collateral Final Order Doctrine (Cohen Test)
iii. Small class of prejudgment orders that finally determine the claims to a
right that are separable from and collateral to rights asserted in an action.
Such claims are too important to be denied review and too independent of
the cause to require deferral of appellate consideration until the whole case
is adjudicated.
iv. Cohen Test:
1. Must conclusively determine the disputed question
 2. Resolve an important issue COMPLETELY separate from the
merits of the action; AND
3. Be effectively unreviewable on appeal from a final judgment on
the merits
b. Injunctions
i. Sec.1292(a) - Appeals from interlocutory orders of the district court
granting/continuing/modifying/refusing/dissolving injunctions or refusing
to dissolve or modify injunctions.
ii. Policy - Special nature of injunctive relief and their potential to do harm
1. Doesn't apply to a temporary restraining order (TRO), but does
apply to a preliminary injunction - TRO has a very short basis - 10
days - R65(b)
c. Interlocutory appeals
i. Sec.1292(b) - Permits a district court to certify interlocutory appeals from
non-final judgments
1. District court must certify that:
a. "The order involves a controlling question of law as to
which there is a substantial ground for difference of
opinion" and that "an immediate appeal from the order may
materially advance the ultimate termination of the
litigation."
b. Circuit/Appellate court must agree
2. RARELY USED
ii. R23(f) - Court of appeals may permit an appeal from an order granting or
denying class-action certification under this rule if a petition for
permission to appeal is filed within 20 days

Appealable Not Appealable

Final decisions under 1291 Non-final decisions (with exceptions)

Preliminary & Permanent Injunctions TROs 65(b)

R65(a)/1292(a)
Interlocutory decisions on certification by the R56(d) partial SUMJ
trial court with acceptance by circuit - Liability, i.e.
1292 - "Material advance" controls

R54(d) Final decisions on multiple claims Forum selection clause

- Here or there is not important enough
Cohen exceptions
- i.e. absolute immunity (judge/prosecutor)

1. Standards of Review
 Types of Issues Degree of Deference
De novo Question of Law No deference
Clearly erroneous (R Questions of fact Mid-level of deference
52(a)(1))
Abuse of discretion Questions where trial court has MOST deferential
discretion

2. Anderson (holding that courts of appeals can only set aside a trial judge's findings of fact
if they're clearly erroneous, and since a trial judge is in a superior position of making
determinations of credibility and because duplication of the trial judges errors would not
contribute materially to the accuracy of fact determination at the tremendous cost of
resources, thus deference should be to the original fact finder in determining the what if
any error was made as to questions of fact)
3. SCOTUS reverses circuit court, saying that they didn't use the clearly erroneous standard
and sat as another finder of fact, which was in error

PERSONAL JURISDICTION

1. Basic test:
a. A court may exercise specific jurisdiction over a nonresident D if the D has
i. SUFFICIENT PURPOSEFULLY AVAILING MINIMUM FORUM
CONTACTS FROM WHICH THE LITIGATION ARISES OUT OF
SUCH THAT IT DOESN'T OFFEND TRADITIONAL NOTIONS OF
FAIR PLAY AND SUBSTANTIAL JUSTICE TO COMPEL THE D TO
DEFEND IN THE FORUM
ii. 3 part test
1. Sufficient purposefully availing minimum contacts
2. The case/controversy arises out of those contacts
3. Fair play and substantial justice balancing test
a. D's burden
b. P's burden
c. Forum interests
d. Interstate/public interests
iii. Remember to ask if the P had another convenient forum to bring suit
against D in
2. Milliken
a. Suit between partners of an oil well…PJ comports with due process when resident
of state is served properly outside of the state…If resident of the forum state, D
doesn't need to be in-state to be subject to that state's jurisdiction if properly
served out of state
b. "The authority of a state over one of its citizens is not terminated by the mere fact
of his absence from the state"
3. INTL Shoe
 a. DE corporation doing business in Washington
i. No office in forum
ii. No contract
iii. $30k in commissions annually
b. GIVES: The Shoe Test
c. The greater the contacts, the less connection is required, and vice versa
4. McGee
a. High water mark of jurisdiction
i. D solicits life insurance policy from CA resident - 1 solicitation
ii. No office
iii. No agent in state
iv. High causal relation + fairness balance tipping towards jurisdiction
b. ADDS: Single solicitation into the forum state is enough if the cause of action
arises directly from that contact
5. Hanson
a. Unilateral activity of a party who claims some relationship with a non-resident D
cannot satisfy the requirement of contact with the forum state.
b. ADDS: Contacts must be purposefully availing; have to purposefully avail oneself
of the privileges of conducting activities within the forum state (invokes the
benefits and protections of its laws)
6. Shaffer
a. Shareholder derivative action attempts to attach stock in forum state in order to
compel directors and officers of a corporation to submit to suit there
b. ADDS: INTL Shoe test absorbs quasi in rem jurisdiction (attaching property to
compel jurisdiction) - Applies to any sort of jurisdiction question
i. D owning property in the forum state is a purposefully availing minimum
contact, but not dispositive to the jurisdiction question
ii. But if suit is over property situated in forum state, then it can be attached
to compel jurisdiction (but obviously D owning property in the forum state
is a sufficient purposefully availing minimum contact)
c. If P wanted a forum, he could sue the individual directors in the states where they
reside
7. WW Volkswagen
a. Foreseeability is not wholly irrelevant when contemplating an item entering the
stream of commerce and ending up as a contact within a forum state attempting to
compel jurisdiction. HOWEVER, the foreseeability that is critical to due process
is not the mere likelihood that a product will find its way into the forum state. IT
IS THE D'S CONDUCT AND CONNECTION WITH THE FORUM STATE
SUCH THAT HE SHOULD REASONABLY ANTICIPATE BEING HALED
INTO COURT THERE
b. ADDS: The unilateral act of a consumer bringing a corporation's product into the
forum state is not enough satisfy the "purposefully availing minimum contacts"
requirement of due process sufficient to make the D submit to jurisdiction.
8. Asahi Metal - Notions of fair play and substantial justice can trump minimum contacts
 a. Unfair to force a foreign D (Japanese) to litigate a matter only involving another
foreign party in the forum when D's only contacts with the forum are placing its
product into the stream of commerce
i. Heavy burden on D to come into forum
ii. Interests of forum state very low
iii. Interests of public can equally be served by legislation ensuring import
standards
b. Minimum contacts pluralities
i. O'Connor: Stream of commerce PLUS something showing purposeful
direction
1. Advertise in the forum
2. Produce a special product for that forum
3. Provide advice to customers in that forum
ii. Brennan: Sufficient minimum contacts can be satisfied by injecting an
item into the stream of commerce AND regular, consistent sales
iii. Stevens: Character of components entering in the stream of commerce
dispositive to the Constitutional analysis of "purposeful availment":
1. Volume
2. Value
3. Hazardous Character
9. Burger King - Fairness balancing cuts TOWARDS PJ
a. Franchisee in MI reaches out to FL corp. and enters into franchise negotiation;
agreement contains a choice of law provision availing the parties of the benefits
of FL's law should either party bring suit against the other
i. Minimum contacts: Franchise dispute arises out of a contract which had
substantial connection with the state…D reached purposefully into FL to
negotiate with a corp. within the forum and avail itself of the benefits of
being associated with that corporation
ii. The 4-factor fairplay/substantial justice test can serve to establish the
reasonableness of PJ upon a lesser showing of minimum contacts than
would otherwise be required
iii. This is an Asahi "plus" case
iv. This is a McGee/Hanson "purposeful availment" case
b. POLICY: This is a modern world; business is conducted across state lines; the
burden is very low on the D to go to Florida to litigate
10. Pavlovich
a. PJ based on internet use - The sliding scale test:
i. NO PJ: D only operates a passive website; only posts information to the
site, and that information is available to others in foreign jurisdictions
ii. MAYBE PJ: Some interactivity; uses can exchange information with the
host - What level of interactivity/commercial nature of the site is
dispositive to the determination of jurisdiction
iii. PJ: Store on website; purposefully enter into k's; Do business actively
b. Effects test for purposeful availment: Forum can establish PJ over individual D's
based on the effects of their conduct in the forum state…Did D create an
 instrument of harm that they knew could have a potentially negative effect on a
party in the forum state? If so, PJ may be proper
c. While a D's knowledge that his tortious conduct may harm parties in a foreign
jurisdiction is relevant to the determination of PJ, it is not dispositive to establish
express aiming at the forum state to satisfy the effects test, which is in turn a test
for purposeful availment

General Jurisdiction - Very much still a question mark for courts - But generally, when a court
exercises PJ over a D in a suit not arising out of or related to the D's contacts with the forum, the
state is said to be exercising "general jurisdiction" over the D

1. Perkins
a. Jurisdiction by necessity
b. Stockholder suit against Philippino corporate D for failure to issue
stock/dividends
c. Court holds that continuous and systematic supervision of a D's activity in the
forum can allow suit when the c/a is not related
2. Helicopteros
a. Parties concede no specific jurisdiction in this case, but is that really true? D's
president flew to forum to negotiate the k from which the flight that eventually led
to the accident and thus the lawsuit arose
b. NO general PJ: Purchases at regular intervals in the forum state by a nonresident
corp. do not rise to the level of continuous and systematic such that forcing the
corp. D to submit to PJ in that forum would not offend due process
3. Burnham - Tag you're it
a. INTL Shoe confined its minimum contacts requirement to situations in which the
D be "not present w/in the forum, and nothing in Shaffer expands that
requirement beyond that
b. Jurisdiction based on physical presence alone constitutes due process…One of the
continuing traditions of our legal system that define due process standard of "fair
play and substantial justice"
i. History validates this view, says Scalia - Allows for straightforward and
predictable analysis of the law, and lets that standard govern people's
behaviors
ii. Based on an old Pennoyer standard - Tag, you're it!
iii. POLICY: Need to have somewhere to bring a divorce proceeding for the
sake of the kids
c. So the plurality says: Presence alone is enough; service in the forum state by itself
is okay
d. Majority - Service is sufficient if FAIR
e. Brennan Concurrence: Burdens on transient D served in forum are slight…D has
already got there once, right? Probably not prohibitively inconvenient; also being
present in the state allows D to avail himself of the state's
benefits/economy/public services
4. Consent as a substitute for power - Beyond the Pennoyer/INTL Shoe "power" question, a
D can consent to jurisdiction in a forum
 a. Carnival Cruise Lines
i. Forum selection clause (FSC) for lawsuits arising out of ticket purchase
contract shall be litigated in FL courts
ii. P slips and falls and is hurt; c/a negligence of D cruise line
iii. P's consent to notice of boiler-plate forum selection clause! Why?
iv. Thus, with notice of the k clause limiting forum, P has consented to
jurisdictional choice; rules of CivPro are default rules, governing if the
parties have not agreed to something else…FSCs are an example of the
parties ability to make agreements that displace ordinary rules
1. In cases of equal bargaining power, this is a cut and dry decision
2. Majority says that an FSC effectively denotes a bargain b/t the
consumer and the cruise line operator - Allowing choice of forum
keeps costs of litigation down for consumers; allows predictability
3. Saves time and expense in litigation/figuring out where to litigate
v. Dissent:
1. Don't like the ability to privately contract away from a forum -
Limits state's power to litigate an issue of importance
2. Is this a k of adhesion? Is there truly equal bargaining power here?
5. FRCP 4(k)(1) - In general - Serving a summons/filing a waiver of service establishes PJ
over a D
a. Who is subject to the jurisdiction of a court of general juris. in the state where the
d district court is located;
b. Who is a R14/R19 party joined AND is served w/in a judicial district of the US
AND not more than 100 miles from where the summons is issued; OR
c. When authorized by a federal statute
6. Cognovit clauses: Far end of the consent spectrum
a. Not only consent to jurisdiction, but a waiver of the right to assert a defense and
the right to trial and appeal…"Written authority of a debtor and a direction by him
for the entry of judgment against him if the obligation set forth in the note is not
paid when due
b. Doesn't deprive the signer of a hearing, but does shift the burden of obtaining
such hearing…The person who would ordinarily be the D becomes the P in such
an action, and assumes the burden of instituting litigation and of producing
evidence to show that the entry of judgment was not warranted
7. Long arm (LA) statutes (should be short-arm, though) - This is the first line of attack!
The LA statute can by definition only reach the outer bounds of due process, so
frequently they're more restrictive, and thus restrain jurisdictional power, conferring
benefits to the D
a. Gibbons (holding a D who had litigated and settled a lawsuit previous to the
current suit is not "engaged" in substantial and not isolated activity such that it
satisfies the language of the applicable long-arm statute)
b. The long-arm statute was of a class that required more activities or contacts that
would be required by the due process holding of the SCOTUS
i. A D's prior filing of a lawsuit in a jurisdiction should not act as a sword of
Damocles dangling over that D's head if they should attempt an otherwise
valid challenge of jurisdiction at a later date
Notice
1. Mullane
a. Notice must be reasonably calculated to reach the D and give actual notice of the
pendency of an action
i. Personal service good
ii. Mail w/waiver is constitutional if an address is known
1. In Mullane, the groups were to be divided based on shared
interests, the idea is mass notice to the entire group of D's would
allow D with shared interests to represent like D's
2. Justifies 3rd rate notice by giving the best possible notice to groups
of like interests
iii. Publication to if D's unknown

Service - Goal is to make waiver of personal service the dominant form

1. FRCP4 - Summons/Service
a. Contents/Amendments
b. Issuance
c. Service
i. In general - A summons must be served with a copy of the complaint…
The P is responsible for having the summons and complaint served w/in
the time allowed by R4(m) and must furnish the necessary copies to the
person who makes service
ii. Whom: Any person who is at least 18 and not a party may serve
iii. At P's request, the court may order that service be made by a US Marshall
d. Waiving service
i. Requesting waiver - D subject to service has a duty to avoid the
unnecessary expense of serving the summons…The P may notify such a D
that an action has been commenced and request the D waive service of a
summons…Notice and request must:
1. Be in writing and addressed:
a. To the individual D
b. Or if a corp./partnership - An officer/managing agent, or
any other authorized agent
2. Name the court where filed
3. Inform the D of the consequences of waiving/not waiving service
4. State the date
5. Give D at least 30 days after the request sent - Or 60 days if sent to
a D outside the US
ii. Failure to waive: D fails w/o good cause to sign and return waiver of
service, the court must impose on the D costs incurred in making service
AND the reasonable expense of any motion required to collect those
service expenses
1. A D who timely returns a waiver need not serve his answer to the
complaint until 60 days after the request was sent
 2. When the P files a waiver, proof of service is not required and
these rules apply as if a summons and complaint had been served
at the time of filing the waiver
3. Waiving service of a summons does not waive any objection to PJ
or to venue
iii. Serving an ind. w/in a judicial district of the US - Unless federal law
provides otherwise, an individual - Other than a minor/incompetent/person
whose waiver has been filed - may be served in a judicial district of the
US by:
1. Following state law for serving a summons in an action brought in
courts of general jurisdiction in the state where the district court is
located OR where service is made; OR
2. Any of the following:
a. Delivering a copy of the summons and of the complaint to
the individual personally
b. Leaving a copy of each at the individual's dwelling or usual
place of abode with someone of suitable age and discretion
who resides there
c. Delivering a copy to an agent authorized to receive service
for the D
iv. Serving an ind. in a foreign country
1. By any internationally agreed means of service that is reasonably
calculated to give notice - Hague Convention on the Service
Abroad, e.g.
2. By any method reasonably calculated to give notice
a. Prescribed by the foreign country's law for service in that
country in an action in its courts of general jurisdiction
b. As the foreign authority directs
c. Or by:
i. Delivering copy of the summons/complaint
personally
ii. Using any form of mail that the clerk addresses and
sends to the individual AND that requires a signed
receipt; OR
iii. By other means not prohibited by international
agreement
v. See PJ supra
vi. Time limit for service - If a D is not served w/in 120 days after the
complaint is filed, the court must dismiss the action w/o prejudice against
the D OR order service be made w/in a specified time…But if the P shows
good cause for the failure, the court must extend the time for service for an
appropriate period
2. FRCP 4.1(b) - Service of other Process; Enforcing orders: Committing for Civil
Contempt
a. An order committing a person for civil contempt of a decree or injunction issued
to enforce federal law may be served and enforced in any district. Any other
 order in a civil-contempt proceeding may be served ONLY in the state where the
issuing court is located or elsewhere in the US w/in 100 miles where the order
was issued

Venue
1. Sec.1391 - Generally
a. A civil action founded on diversity may be brought in
i. A district where any D resides, if all D's reside in the same state
ii. Any district in which a substantial part of the events OR omissions giving
rise to the claim occurred, or a substantial part of property that is the
subject of the action is situated; OR
iii. A district in which any D is subject to PJ
b. A civil action not founded solely on diversity may be brought only in
i. A district where any D resides, if all D's reside in the same state
ii. A district where a substantial part of the events or omissions giving rise to
the claim occurred; OR
iii. A district in which any D may be found
c. A corp. D shall be deemed to reside in any district in which it is subject to PJ at
the time the action is commenced…In a state which has more than on district
AND in which a D that is a corp. is subject to PJ at the time the action is
commenced, such corp. shall be deemed to reside in any district in that state w/in
which its contacts would be sufficient to subject it to PJ if that district were a
separate state AND, if there is no such district, the corp. shall be deemed to reside
in the district w/in which it has the most significant contacts
2. Sec. 1392 - D's or property in different districts in the same state
a. Any civil action, of a local nature, involving property located in different districts
in the same state, may be brought in any of such districts
3. Forum non conveniens (FNC) - Even if a court has power, it can decline to hear a case
and dismiss it if its litigation is not convenient

4. Piper Aircraft (holding that when the choice of a second forum does not deprive the P of
an adequate and substantial remedy and does not contradict the interests of justice or the
need to retain flexibility, the need to join or implead third parties in the interests of one of
the original parties claims or defense is dispositive to a FNC inquiry)
a. Requires dismissal and refilling
b. COURTS' NEED TO RETAIN FLEXIBILITY IS DISPOSITIVE
c. Can't refuse a m. to dismiss FNC because the movant's motive is to gain favorable
or unfavorable law - It can be a factor, but not dispositive
d. Test:
i. P's choice of forum should be given a strong presumption - Especially so
when P is choosing its home forum
ii. Convenience factors:
1. Where are the witnesses?
2. Where are the documents?
3. Where is the evidence?
iii. Public factors:
 1. Local interests in having localized controversies decided at home
2. Avoidance in unnecessary problems in conflict of laws
3. Burdening citizens in an unrelated forum with jury duty
4. Interest in having the trial of a diversity case in a forum that is at
home with the law that must govern the action
e. If justice so requires, courts may condition FNC dismissal on tolling the s/l or
agreements to waive the s/l defense in the alternative forum - Same idea applies to
both PJ and venue

SUBJECT MATTER JURISDICTION (SMJ)

1. Definition/Rationale/Procedure
a. SMJ refers to the power of a court to hear a particular case. A court needs BOTH
SMJ & PJ to adjudicate a case
b. Federal courts are courts of limited jurisdiction - Const. Art. III - Fed. courts can
only adjudicate cases enumerated by Article III and cases falling under statutory
jurisdiction created by Congress.
c. R.(8)(a)(1) - P must plead SMJ - "Short and plain" statement
d. Lack of SMJ can be raised at anytime, and can be raised sua sponte
i. Party may move for lack of SMJ under R12(b)(1)
ii. If P seeks SMJ based on a federal question and the facts alleged don't give
rise to a federal question (see "well-pleaded complaint rule" infra), D can
m. to dismiss R12(b)(6)
iii. R12(b)(h) - Defense of SMJ is NEVER WAIVED
iv. SMJ can be raised sua sponte, all the way up to SCOTUS
1. Mottley (holding that the case should be dismissed for lack of
SMJ; issue raised by SCOTUS for the first time in the litigation)
e. REMEMBER: Federal courts share almost all of their jurisdiction with state
courts (exceptions being bankruptcy/admiralty/antitrust)
2. Federal Question Jurisdiction
a. Sec.1331 - "Arising under" federal law
b. Well-pleaded complaint rule
i. Case arises under federal law only when P's claim raises a federal issue
ii. A case doesn't arise under federal law when the P's claim is only
anticipating the D's federal defense
1. Mottley (no "arising under" jurisdiction when P's claim is about
whether P was entitled to free RR passes, a purely state law
breach/k claim that D may have defended based on a federal
statute)
3. Diversity Jurisdiction
a. Sec.1332(a) provides SMJ for cases that arise under state law b/t "citizens" of
different states
i. Citizens of a state and citizens of a foreign country
ii. Citizens of foreign countries
 b. Strawbridge requires complete diversity: All P's and all D's must be citizens of
different states - Must be complete diversity b/t all parties on either side of the
"v."
c. Test for individuals: An individual is a citizen of a state where he is domiciled
d. Domiciled means:
i. Presence
ii. Intent to remain
iii. Hawkins (holding that a person who intended to move to a diverse state,
but hadn't acted yet on that intent, is not a citizen of that other state)
iv. Redner (holding that alienage diversity requires that an individual be a
"citizen" of a foreign country, not merely a resident; in addition, having an
office in a diverse state is not enough to establish domicile in that state)
v. Walker (P must plead COMPLETE diversity or risk R11 sanctions)
e. A corporation is a citizen of a state where it's incorporated and where it has its
principal place of business
f. Diversity requires the amount in controversy > $75k
i. Ensures that diversity jurisdiction doesn't flood the federal courts with
minor disputes
ii. But can be analyzed on a claim by claim basis in the context of Sec.1367
supplemental jurisdiction - Contamination of diversity jurisdiction does
not occur with respect to jurisdictional defects that go only to the
substantive importance of individual claims
g. Why diversity? Is it even needed anymore?
i. Provide a federal forum for important disputes where state courts might
favor, or be perceived as favoring, home-state litigants
ii. The presence of parties on both sides of a case dispels this concern,
eliminating a principal reason for conferring Sec.1332 jurisdiction over
any of the claims in the action
4. Supplemental Jurisdiction
a. Sec.1367(a) - In a federal question case, district courts may have supplemental
jurisdiction over
i. A state law claim (when there is no diversity) that is "so related" to the
federal question as to be part of the "same case or controversy" and
ii. Additional non-diverse parties
b. Sec. 1367(b) - In diversity cases, district courts DO NOT have supplemental
jurisdiction over non-diverse parties under R14(impleader), R19(necessary
parties/joinder), R20(permissive parties/joinder), and R24(intervention)
c. Sec.1367(c) - District courts may decline to exercise supplemental jurisdiction
WHEN:
i. The claim raises a novel or complex issue of state law; state substantive
law is unclear
ii. The state law claim predominates
iii. The district court has dismissed the federal claim; OR
iv. In exceptional circumstances, there are other compelling reasons to
decline jurisdiction
5. Removal
 a. Sec.1441 gives a D the right to remove a case the P chose to file in state court to
the federal court in the state in which the P filed the case if the case could have
been brought in the federal in the first place (P's complaint arises under federal
law OR there is complete diversity)
b. An in-state D may remove an "arising under" case. An in-state D may NOT
remove a diversity case
i. The presence of one in-state D is enough to deny removal
c. Sec.1446 - Removal Procedure
i. Time Limits
1. D must file a removal petition w/in 30 days after the case has
become removable
2. Petitions governed by R11
3. In no instance can a diversity action be removed more than one
year after the action is commenced
4. Sec.1447 remand
a. A P must file a motion to remand within 30 days after the
removal petition (except for lack of SMJ)
b. Appealability
i. Order remanding a case to state court is not
appealable
ii. An order denying m. to remand is appealable
d. Caterpillar (holding that judicial economy doesn't require reversing a verdict for a
case that was improperly removed, but became removable by the time it went to
trial)
6. Transfer - Sec.1404
a. (a) - For the convenience of parties or in the interest of justice - A district court
may transfer any civil action to any other district where the action may have been
brought
b. (b) - Upon m. - Any action/suit/proceeding OR motion/hearing thereof may be
transferred
c. (c) - District court may order any civil action to be tried at any place within the
division in which it's pending
d. Beneficial because it DOES NOT require the dismissal and refilling of an action
e. Differentiate transfer from FNC
i. FNC available only to the D, while transfer is available to both parties
ii. Courts have upheld transfer in the face of P's presumption of forum
choice, traditionally unavailable with a FNC inquiry
f. Sec.1631 - Transfer to cure want of jurisdiction (venue proper but jurisdiction
lacking)
i. Whenever a civil action is filed and that court finds that there is want of
jurisdiction, the court SHALL in the interests of justice transfer the action
to any other court in which he action could have been brought at the time
it was filed, and the action or appeal shall proceed as if it had been filed in
the court to which it is transferred on the date upon which it was actually
filed in the court from which it was transferred.
Erie Doctrine/Application of State Substantive Law - When sitting in diversity, a federal court
applies state substantive law, but applies its own procedural view…If there is a conflict:
1. Is it a diversity case?
2. Is there a conflict between state and federal law?
3. Is the question in conflict substantive or procedural?
4. Is there a Fed. Rule Civ. Pro.?
a. If yes and the question is one of procedural nature, federal law governs
5. If there is no FRCP?
a. Erie's policies
i. Discourage forum shopping
ii. Discourage inequitable results
b. Harlan test:
i. Does rule govern the "primary conduct in the real world" OR
ii. Govern housekeeping?
6. Hanna (holding that federal law applies to procedure in diversity cases)
a. First look to the rules enabling act, then use Erie's policies
7. Erie (holding the conflict between state & federal substantive law is a Constitutional one,
and limiting the powers of the federal government to a system of enumerated rights; there
is no federal common law)
a. Reed concurrence: Don't need to reach the Constitution to decide Erie
i. Statutory: Federal courts can make rules to govern procedure
ii. But cannot modify or enlarge the rules governing substantive law
8. York (holding that s/l was a substantive law, and thus state law applies)
9. Byrd (holding that the choice between judge only or judge & jury is a procedural
question, and thus state law applies)
10. Sec.2072 (Rules Enabling Act) - Rules of Procedure; power to prescribe
a. SCOTUS shall have the power to prescribe general rules of practice and
procedure for cases in the US district courts (including magistrate actions) and
courts of appeals
b. Such rules shall not abridge, enlarge, or modify any substantive right. All laws in
conflict with such rules shall have no further force or effect after the rules have
take effect

Former Adjudication/Claim & Issue Preclusion - Under R8(c), it is an aff. Defense, and thus can
be waived if not plead during the answer
1. Generally - Analyze burden of proof from LS1 to LS2 - If the burden of proof was
higher in lawsuit one, can use decision from that suit to shape the decisions of subsequent
suits
2. Claim preclusion
a. Policy of finality/dispute resolution/efficiency - Finality trumps justice when
justice is being defined as an "accurate result"
b. Offer D's repose
c. No inconsistent verdicts
3. Under broad, permissive notice pleading - Claim preclusion standard has more bite
4. Frier
 a. Claim preclusion is substantive law, so the state law applies to federal diversity
action
b. Two tests for the "identity of the matter being precluded:"
i. Same claim or cause of action (COA) = Same evidence, same core of
operative facts
ii. Same transaction = Similar time, space, origin, and motivation; same
conduct by the D
c. Replevin action is substantially the same as a federal due process claim - Whether
you can lawfully tow the cars = whether you can tow the cars w/o giving notice
d. The majority applies the same claims/COA test - Replevin/constitu. - Basic
question is did P get notice? Is the evidence going to be the same?
5. Same Parties
a. Searle (holding that partnership formed by sons is not barred by claim preclusion
when they were not the same parties or privies in the first action deciding the
divorce claim of which of their parents received their home; the right to intervene
as a party in the prior suit does not bind the part in the subsequent suit where he
failed to so intervene)
b. The sons say that the father is only looking out for himself, so no privity to bar
them in second suit

REQUIREMENTS CLAIM PRECLUSION

Identity of the matter Same claim (two different tests)
- Same claim or cause of action = same
evidence/same core of operative facts
- Same transaction = similar
time/space/origin/motivation; same
CONDUCT by D
Identity of the parties Same parties or privies (persons who legal
right was properly represented
Final Decision Final jdt. on the merits
- Court considered and decided issue OR
- Case was dismissed (default against
P/sanctions)
What isn't a final jdt.? Dismissal w/prej., 12(b)
(1)/(2) jurisdiction dismissal
What is barred (effect)? Bars a SECOND LAWSUIT
- Of matter actually litigated; OR
- Matters that could have been litigated

6. Final decision must be "on the merits" to establish claim preclusion

a. 12(b)(6) dismissal after leave to amend is treated by SCOTUS as on the merits
b.
7. Issue Preclusion
a. Victim - Party being hurt if preclusion is allowed
 b. Black letter law RS of Judgments 27) - "When:
i. An issue of fact or law is
ii. Actually litigated and determined by
iii. A valid and final judgment AND
iv. The victim of the issue preclusion had an adequate opportunity and
incentive to litigate AND
v. The determination is essential to the judgment, the determination is
conclusive (binding) in a subsequent action between the parties, whether
or not on the same or a different claim
c. Issue actually litigated and determined
d. Illinois Central RR (holding that if the second trial court can't figure out what
issue was actually litigated in the first trial, the issue can't be barred using
collateral estoppel)
e. Parklane Hosiery
i. Collateral estoppels applies
1. The issue is the same (false & misleading proxy statement)
2. Party/victim of the preclusion is the same)
3. Same incentives to litigate (Parklane knew downstream private
suits stemming from the SEC's suit)
4. New P couldn't insert himself into the first suit
ii. Collateral estoppels does not recognize mutuality of benefit
iii. The fact that a judge and not the jury decided the first suit doesn't matter -
Rationally, the two fact finders should only be able to come to one
conclusion - A party doesn't have a right to an irrational jury trial
(R56/R50)

REQUIREMENTS ISSUE PRECLUSION

IDENTITY OF MATTER Same issue
IDENTITY OF PARTIES Same victim = Party against whom preclusion
is sought
OFFENSIVE (P use against D) depends on:
- D must have had same incentive to litigate in
LS #1 AND
- P2 couldn’t have intervened in LS #1 AND
- Procedures must have been fair in LS#1
DEFENSIVE (D uses against P)
- Only against P who was a party in the first
lawsuit
FINAL DECISION Valid and final judgment of a fact or issue
ESSENTIAL TO THE JUDGMENT
EFFECT: WHAT IS BARRED? Bars re-litigation of fact/issue in a second
judgment
- Of matters actually litigated
- Of matter necessary to the outcome AND
- Only if the process was fair in the first suit
8. Full faith & credit
a. Sec.1738 State and territorial statutes and judicial proceedings; full faith and
credit
i. The records and judicial proceedings of any court of any state shall be
proved/admitted in other courts within the US/states therein
ii. Such records/judicial proceedings shall have the same full faith and credit
in every court w/in the US as they have by law or usage in the courts of
the state from which they are taken
b. Durfee (holding that because the issue of SMJ in a private civil quiet title action
was a fully and fairly litigated issue in the courts of another forum, the party
adverse to the final jdt. in that action is collaterally stopped from litigating the
issue in the courts of another state by the full faith & credit clause of the
Constitution)
c. Baldwin (holding that full faith and credit shall be given to a full & fair litigation
of personal jurisdiction as well)
d. Policy - Finality & efficiency - The matter was litigated, and the preclusive effect
is solely between these two parties
e. State supreme courts have direct review power, but once those courts rule on the
appealed issue, the matter is over.
9. Re-opened jdt's
a. R60(b) - Grounds for relief from a final judgment/order/proceeding - On m. and
just terms, the court may relieve a party or its legal representative from a final
judgment, or, or proceeding for the following reasons:
i. Mistake/surprise/excusable neglect
ii. Newly discovered evidence that (with reasonable diligence) could not
have been discovered in time to move for a new trial under R59(b)
iii. Fraud, misrepresentation, misconduct
iv. Void judgment
v. Judgment satisfied
vi. ANY OTHER REASON THAT JUSTIFIES RELIEF
b. Timing and effect of motion
i. Timing - A m. under 60(b) must be made w/in a reasonable time - And for
(1-3) no more than a year after the entry of the judgment
ii. Effect on finality - The m. does not affect the judgment's finality or
suspend its operation
c. Other powers to grant relief - This rule doesn't limit a court's power to:
i. Entertain an independent action to relieve a party from a jdt., order, or
proceeding
ii. Grant Sec.1655 relief to a D who was not personally notified of the action
iii. Set aside a jdt. for fraud on the court
d. US v. Beggerly (holding that because under R60 the only form of action available
to P to reopen the jdt. in this case was the form of the new individual action
(R60(d)), and in action that standard is very strictly to reopen judgment's to
prevent a "grave miscarriage of justice," and since the failure to obtain by either
 party material relevant to the litigation in a settled matter doesn't violate that
standard, the court can't justify re-opening the judgment)
e. Standard in re-opening a judgment is to prevent a "gross departure from justice"
10. R50 - Judgment as a matter of law in a fury trial; related motion for a new trial;
conditional ruling
a. JMOL
i. In General - If a party has been fully heard on an issue during a jury trial
and the court FINDS THAT A REASONABLE JURY WOULD NOT
HAVE A LEGALLY SUFFICIENT EVIDENTIARY BASIS TO FIND
FOR THE PARTY ON THAT ISSUE, the court may:
1. Resolve the issue against the party; AND
2. Grant the m. for JMOL against the party on a claim or defense that,
under the substantive law, can be maintained/defeated only with a
favorable finding on that issue
ii. Motion - A m. for JMOL may be made at ANY TIME before the case is
submitted to the jury. The m. must specify the jdt. sough and the law and
facts that entitle the movant to the jdt.
b. Renewing the m. after trial; alternative m. for a new trial - If the court doesn't
grant the motion for JMOL under R50(a), the court is considered to have
submitted the action to the jury subject to the court's later deciding the legal
questions raised by the motion. Movant may refile as a RJMOL/JNOV no later
than 10 days after the just was discharged…May also include an alternative or
joint request for a new trial under R59 - In ruling on the renewed m., the court
may:
i. Allow judgment on the verdict, if the jury returned a verdict
ii. Order a new trial; OR
iii. Direct the entry of JMOL
c. Granting the renewed m.; conditional ruling on a motion for a new trial
i. Generally - If the court grants RJMOL, it must also rule on any m. for a
new trial by determining whether a new trial should be granted if the jdt. is
later vacated or reversed…The court must state the grounds for
conditionally granting/denying the m. for a new trial
d. Time for losing party's new-trial m. - Any motion for a new trial under R59 by a
party against whom jdt. as a matter of law is rendered must be filed no later than
10 days after the entry of the jdt.
e. Denying the m. for JMOL; reversal on appeal - If the court denies the m. for
JMOL, the prevailing party may, as a'ee, assert grounds entitling it to a new trial
should the appellate court conclude that the trial court erred in denying the
motion…If the appellate court reverses the judgment, it may order a new trial,
direct the trial court to determine whether a new trial should be granted, or direct
the entry of judgment
11. R49 - Special Verdict
a. Special Verdict
i. In general - The court may require a jury to return only a special verdict in
the form of a special written finding on each issue of fact - The court may
do so by:
 1. Submitting written questions susceptible of a categorical or other
brief answer
2. Submitting written forms of the special findings allowed under the
PLEADINGS and evidence
3. Other appropriate methods
ii. Instructions - The court must give the instructions and explanations
necessary to enable the jury to make its findings on each submitted issue
iii. Issues not submitted - Party WAIVES the right to a jury trial on any issue
of fact raised by the pleadings or evidence but not to the jury UNLESS
before the jury retires the party demands its submission to the jury
b. General Verdict w/answer to written questions
i. Generally - The court may submit to the jury forms for a general verdict,
combined with written ?'s on one or more issues of fact that the jury must
decide…Court MUST give instructions/explanations necessary or the jury
to render a general verdict AND answer the questions in writing
ii. When the verdict and the answers are consistent, the court must approve
an appropriate judgment on the verdict and answer
iii. When the answers are inconsistent with the verdict - But one or more is
consistent with the general verdict
1. Court may approve for entry under R58 an appropriate jdt.
according to the answers, NOTWITHSTANDING THE
GENERAL VERDICT
2. Direct the jury to further consider its answers and verdict; OR
3. Order a new trial
iv. Answers inconsistent with each other and the verdict - When the answers
are inconsistent with each other AND one or more is also inconsistent with
the general verdict, judgment must not be entered - Instead, the court must
direct the jury to further consider its answers and verdict, or MUST
ORDER A NEW TRIAL
12. R52 - Findings and Conclusions by the court; judgment on partial findings
a. Findings and conclusions
i. In general - When the judge is sitting as finder of fact w/o a jury, the court
must find the facts specially and state its conclusions of law separately.
ii. Same thing for granting/refusing an interlocutory injunction
iii. For a motion - The court is NOT required to state findings or conclusions
when ruling on a motion under R12/R56 OR ANY OTHER MOTION
iv. A master's findings must be considered the court's findings
v. Findings of fact, whether based on oral or other evidence, must not be set
aside unless clearly erroneous, and the reviewing court must give due
regard to the trial court's opportunity to judge the witnesses credibility
b. Amended/additional findings - On a party's MOTION filed no later than 10 days
after the entry of judgment, the court may amend its finding/make additional
findings, and may amend the judgment accordingly. The motion may accompany
a motion for a new trial under R59
c. Jdt. on partial findings - If a party is fully heard on an issue during a nonjury trial
and the court finds against that party on that issue, the court can enter judgment
 against that party on a claim/defense that under the substantive law CAN BE
MAINTAINED OR DEFEATED ONLY WITH A FAVORABLE FINDING ON
THAT ISSUE. The court may, however, decline to render judgment until the
close of the evidence - Must be supported by R52(a) fact/law findings if court
chooses to do so, however
13. R59 - New Trial; Altering or Amending a Judgment
a. General
i. Grounds for a new trial - The court may on motion grant a new trial on all
or some of the issues AND TO ANY PARTY as follows:
1. After a jury trial, for any reason that up until now allowed a new
trial to be granted in an action at law in federal court
2. In a nonjury trial for the same reason in a suit in equity in federal
court
ii. After a nonjury trial the court may on motion for a new trial open the jdt.
if one has been entered…Amend findings of fact/conclusions or law…
Direct the entry of a new jdt.
b. Time to file a m. for a new trial - No later than 10 days after the entry of jdt.
c. When a m. new trial is based on affidavits, they must be filed with the motion -
Opposing party has 10 days after being served to file its opposing affidavits - The
period may be extended for up to 20 days by parties stipulation or for good cause
by the court
d. New trial can be granted by the court sua sponte no later than 10 days after the
entry of judgment - Same reasons that would justify granting a new trial on a
party's motion
e. A motion to alter or amend a jdt. must be filed no later than 10 days after the
entry of jdt.
14. R41(b) - A dismissal operates as an adjudication on the merits EXCEPT for dismissing
for:
a. Lack of jurisdiction
b. Improper venue
c. Or failure to join under R19

JOINDER, IMPLEADER, & INTERVENTION

Joinder - How many claims/parties can be brought in a civil action

1. One of the overarching themes of federal civ pro is BROAD JOINDER
a. Every joinder question that allows a party to add a claim/party invokes a SMJ/PJ
question subsequently
2. Claim joinder by P - R18
a. R18(a) - The P can assert ANY claim against D (permissive) - P autonomy
i. Doesn’t have to be related at all
ii. Authorizes the pleader to serve as many claims as it has in seeking relief
against the particular other party - Applies to party asserting:
1. A claim
2. A counter-claim
3. Cross-claim
 4. 3rd party claim
iii. R18(b) - Can join any claims even if the second claim is dependant on the
resolution of the first
3. The D's claims
a. Counterclaim (CTC) - R13(a)(b) - A claim from the D to the P
i. R13(a)(1) Compulsory:
1. Arises from the same transaction or occurrence as the P's claim
2. And doesn't require adding a third party over the whom the court
has no jurisdiction
a. If a compulsory CTC is not brought, it is barred by claim
preclusion
ii. R13b1 Permissive:
1. A CTC that doesn't arise from the same transaction or occurrence
as P's claim
a. D may assert but doesn't have to - Thus not barred by res
judicata
b. Can be completely unrelated to the P's claim
i. R42b - Court can bifurcate/sever trial of a
permissive CTC
2. R42 - Consolidation; Separate Trials
i. Consolidation: If actions before the court involve a
common question of law or fact, the court may:
1. Join for a hearing/trial any or all matters at
issue in the actions
2. Consolidate the actions; OR
3. Issue any other orders to avoid unnecessary
cost or delay
ii. Separate trials: For convenience, to AVOID
PREJUDICE, or to expedite/economize, the court
can order separate trials of one or more separate
1. Issues
2. CRC
3. CTC
4. 3PC
iii. Federal right to a jury trial must be preserved when
ordering a separate TRIAL
b. R13(g) Crossclaim (CRC): Claim against a COPARTY (P1 v. P2; D1 v. D2)
i. Must arise out of a transaction or occurrence
ii. R18(a) joinder only applies to CRC when it arises out the same
transaction/occurrence as the original claim
iii. R13(h): Looks to R19/R20 for joining additional parties to a CRC or CTC,
but generally the D is authorized to bring in additional parties, subject to
the same transaction/occurrence test
iv. Once a CRC is raised, R13(a) & (b) govern the counterclaims brought by
the D crossclaimed against
 v. Plant (holding that a D's state law breach/k action is a compulsive CTC to
a P's federal truth in lending act claim under the "logical relationship" test,
as the policies of judicial efficiency win the day over the policies behind
the TIL act of individual citizen attorney's general keeping big bad lenders
in check)
vi. Compulsive CTC tests
1. Same fact and same law
2. Would claim preclusion be applicable to the CTC
3. Same evidence
4. LOGICAL RELATIONSHIP: The CTC arises from the same
aggregate or core of operative facts
a. Courts favor the fourth test b/c it's flexible
b. Allows the court to weigh the POLICIES behind each
law/doctrine in coming to its decision
5. Analogous to the Sec.1367(a) test of "same case or controversy"
4. R20 - Permissive Joinder of Parties
a. EVERY JOINDER QUESTION INVOLVES A BALANCE BETWEEN:
i. Judicial economy; AND
ii. P's autonomy
b. Who may be joinded? Ostensibly a P's tool (R20a1A)
i. Cheaper to spread the costs of litigation
ii. Makes the D look like a worse actor is many P's were hurt by his actions
c. When can we have co-P's?
i. Must show:
1. Claims arise from the same transaction or occurrence
a. Analogize R13(a) logical relationship/Plant test
2. Common question of law or fact
ii. Mosley (holding that the policy and practice of the D's discriminatory
conduct dispositive to analysis of whether there is in fact any common
question of law or fact, which there in fact IS; 10 different parties can be
joined, with their multiple types of discrimination claims)
1. If necessary, separate trials can be held to determine any particular
issue after the determination of common questions
2. Discrimination case important - Court looking to do justice
3. US v. Mississippi (holding permissive joinder of six different
voting registrars allowed when the P's complaint alleges that each
separate registrar was carrying on an act which was part of a series
of transactions/occurrences the validity of which depended largely
on a "question of law/fact common to each of the separate parties")
d. R20a2 - Same analysis for co-D's as well
5. R19 - Required/Compulsory joinder
a. D can challenge in pre-answer motion using R12(b)(7)
i. Preserved in the same manner as a 12(b)(6) failure to state a claim motion
b. R19a1: Who is required to join?
c. 19a1A: Person should be added to the case if, in that person's absence, the court
CANNOT AFFORD COMPLETE RELIEF AMONG EXISTING PARTIES
 d. 19a1B: The person should be made a party if he has an interest in the subject
matter of the action AND:
i. His ability to protect that interest will be impaired if he's not made a
participant in the litigation; OR
ii. Adjudicating the case without him might leave one of the EXISTING
parties exposed to multiple or inconsistent obligations
e. Required party must be subject to service AND will not deprive the court of SMJ
if joinded
6. R19b - When joinder is not feasible - If a person who is REQUIRED to be joined if
feasible CANNOT BE:
a. Judge must determine whether in equity or good conscience "the action should
proceed among the parties before it or should be dismissed"
b. If an absentee should be brought in but isn't, the rules direct the court to evaluate
the impact of proceeding without the party…The court also evaluates the possible
methods of crafting the jdt. to avoid adverse effects on the existing parties or the
absent party
c. Factors for the court to consider in deciding whether to proceed or not:
i. To what extent a jdt. rendered in the person's absence might be prejudicial
to that person or to the parties ALREADY involved
ii. To what extent could any prejudiced by lessened or avoided by:
1. Protective provisions in the jdt.
2. Shaping the relief; OR
3. Other measures
iii. Would jdt. rendered in that person's absence be adequate?
iv. Would the P have adequate remedy if the suit were 12(b)(7) dismissed for
failure to join?
1. Another jurisdiction available?
d. Temple (holding that it is well established under R19b that it is NOT
NECESSARY for all joint tortfeasors to be named as D's and joined in a single
lawsuit)
i. SCOTUS is valuing P autonomy greatly
ii. The prevention of multiple litigation is not dispositive to compulsory
joinder
1. R19 does not require the most efficient packing of lawsuits
possible
2. R19 does not require the joinder of anyone who might be affected
by precedent
iii. D's can't have their rights affected under multiple suits
iv. All parties are afforded total relief without the joining of the party in
dispute (J&S liability)
e. Helzber's Diamond Shops (holding that if the possibility that not joining a party to
a suit might affect a D to inconsistent judgments in multiple suits is based on D's
voluntary acts impose inconsistent obligations the court will not find the party to
be joined indispensible)
i. Indispensibility is VERY DIFFICULT to find under R19
ii. Is there an alternative forum?
7. R19(c)
a. P must, when asserting his claim for relief:
b. State the name of any person required to be joined if feasible but not joined; AND
c. The reason for not joining that person
8. R21 - Misjoinder/Nonjoinder of parties
a. Misjoinder of parties is NOT A GROUND for dismissing an action. On motion
or sua sponte, the court may at any time, on JUST TERMS, add or drop a party.
The court may also SEVER any claim against a party.
9. R14 Impleader - Joinder of parties by a D - Third party claims (3PC)
a. R14(a): D may assert a claim against anyone not a party to the original action if
that 3P's is liable to the D for all or part of the claim against the original D - 3P's
liability is in some way dependent upon the outcome of the original action
i. R14(a)(1) - D may implead 3P within 10 days of answering the complaint
against it without obtaining the court's leave
1. But case holdings have generally established the acceptance or
refusal of the impleader claim is ALWAYS within the discretion of
the court
b. Impleader solely for the benefit of the D in the original suit
i. Exception: When the original D makes a CTC against the P, then the P in
essence becomes a D and is allowed to implead other parties as well
c. D MAY implead the 3P…Won't be barred from suing in a separate action to
recover his indemnity
d. Impleader requires CONTINGENT LIABILITY - "If I'm liable to P, someone
else is liable to me"
i. Third party D's (3PD) liability dependent on the outcome of the main
claim
e. R14(a) - A D, as a third party P (3PP), may serve a nonparty who may be liable to
him for ALL or PART of the claim against him
i. Requires:
1. Contribution: 3P is liable to pay the main D part of the damages
he'll be ordered to pay the original P
2. Contingent liability
3. Indemnity: 3P is liable to pay all of the damages D could be
ordered to pay original P
f. NO "IT'S NOT ME IT'S HIM" ALLOWED! - D cannot suggest another person is
liable DIRECTLY to the P - Can't bring in a new target for the original P
g. Additional R14(a) claims:
i. P and the 3PD can assert claims against eachother if they arise out of the
same trans/occur as the MAIN CLAIM
ii. 3PD can implead other non-parties to the original suit
iii. 3PD can escape liability if:
1. He defeats the original D's derivative claim against him
(compulsory to assert R12 defenses)
2. Defeating the original P's claim against the 3PP (original D)
h. Price (holding that manufacturer can implead any component manufacturer whom
the substantive law finds can have its liability be dependent on the outcome of the
 original action; the implied warranty of merchantability for goods creates a
contractual indemnity under the state substantive law, and the 3PD can be joined
i. Once R14 impleader is deemed to be proper, can R18 join all claims against the
3PD
10. R24 Intervention
a. Non-party joining himself to litigation in a timely manner
b. SMJ needs to work
i. 1367(b): Under diversity jurisdiction, supplement jurisdiction barred over
claims against intervenors under R24
c. 2 Types of intervention
i. R24a1 - Intervention as a right/compulsory/mandatory
ii. When will the court allow intervention - Analogous to R19 compulsory
joinder
1. Timely - Jump into a suit fast
2. Interest relating to the property or transaction that is the subject
matter of the suit
3. Said interest bust be at risk
4. Intervening party's interest is not adequately represented by those
parties already to the action
a. Intervenors must show that they bring something to the
litigation that otherwise would be ignored or overlooked if
the matter were left to the to the already existing parties
iii. R24b1 - Permissive intervention - Authorizes intervention of any person
who has a claim or defense that shares with the main action a common
question of law or fact - Not necessary to arise out of the same trans/occur
1. Intervenors share an interest that makes it efficient and helpful to
have them participate
2. More likely to be allowed to intervene if the party can show that it
brings a special expertise/different perspective than the original
parties to the suit; OR
3. If refusing intervention may lead to other suits litigating the same
issues
a. 24b1B - Court may permit anyone to intervene who has a
claim or defense that shares with the main action a common
question of law or fact
4. Natural Resources Defense Council (holding that potential
recipients of nuclear licenses can intervene as a matter of right in
an action to force parties to provide environmental impact
statements prior to receiving licenses when the mining company
currently in the suit already has a license and thus doesn't
adequately represent the intervening parties' interests)
d. Appellate standards of review:
i. Compulsory/andatory intervention: De novo
ii. Permissive intervention: Abuse of discretion
11. R23 - Class Actions
a. Standards for allowing class action certification
 i. Numerosity
ii. Commonality
iii. Typicality of claims or defenses of class to the claims or defenses of the
representative parties
iv. Representative parties will FAIRLY and ADEQUATELY represent the
interests of the class
b. 23(b) - A class action may be maintained if R23(a) is satisfied AND if:
i. (1) Prosecuting separate actions against by or against individual class
members would create a risk of:
1. Inconsistent judgments
2. Judgments that would impair or impede other potential members
not parties to the adjudication
ii. (2) The party opposed the class has acted or refused to act on grounds that
would apply generally to the class…Final injunctive relief is appropriate
1. Court directs appropriate notice to the class
iii. (3) Class actions superior b/c questions of law or fact common to class
members predominate over questions affecting only individual
members…Class actions > other available methods for fairly and
efficiently adjudicating the controversy…Money damages, generally
1. Notice directed, at the cost of the P, to INDIVIDUAL members of
the class who can be reasonably identified